COURT FILE NO.: CR-14-50000025-0000
DATE: 20140702
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AHMED ABDULLAHI, ABDULLAHI HARUN, DAUD HUSSEIN, ADULKADIR MOHAMUD, LIBAN SIYAD, AND NAIMO WARSAME
Applicants
Emile Carrington, Margo MacKinnon and Paul Renwick, for the Respondent, Attorney General of Ontario
Stephanie Di Giuseppe, Marcus Bornfreund, Anthony Bryant, Loui Dallas, Cydney Israel and Adelle Monaco, for the Applicants
HEARD: June 9, 10, and 11, 2014
COURT FILE NO.: CR-14-10000128-00MO
AND BETWEEN:
HER MAJESTY THE QUEEN
– and –
AYANLE OMAR
Applicant
Adam Boni and Daniel Santoro, for the Applicant
Tom Andreopoulos and Christine Josic, for the Respondent, Public Prosecution Service of Canada
HEARD: June 9, 10, and 11, 2014
DISCLOSURE APPLICATIONS
REASONS FOR JUDGMENT
CLARK J.:
INTRODUCTION
[1] The applications before the court relate to charges stemming from a large investigation, called “Project Traveller”, conducted by the Toronto Police Service Guns and Gangs Unit. The investigation targeted an alleged street gang known as the Dixon Road Bloods. In 2012, at the conclusion of the investigation, the police arrested nearly fifty people and charged them with offences relating to being members of a criminal organization.
[2] For trial management purposes, those charged have been subdivided into six separate prosecutions[^1]. The Public Prosecution Service of Canada (“PPSC”) has carriage of some prosecutions; the Attorney General of Ontario (“AG”) has carriage of others.
[3] The investigation involved two successive judicial authorizations to intercept private communications. The Crown[^2] will seek to introduce certain intercepted communications in the various trials. The defence, in turn, will seek to have the evidence ruled inadmissible by virtue of an alleged breach of s. 8 of the Canadian Charter of Rights and Freedoms (“the Charter”).
[4] Before the court are two applications for disclosure. The Group 4 applicants waived their right to a preliminary inquiry and are presently before this court awaiting trial. Their application is in aid of an anticipated Garofoli[^3] application. In the other prosecutions, there have been no waivers and preliminary hearings have not yet been held. Their joint application is in anticipation of a Dawson[^4] application. On consent, I heard the applications together. What follows are my reasons for decision on both.
POSITION OF THE GROUP 4 APPLICANTS
[5] It is the position of the Group 4 applicants that they are entitled, as of right, to “all source documents” underpinning the successive informations to obtain the authorizations (“ITOs”), including any material they cite or that the affiant referred to in the course of preparing them.
[6] It is conceded that, based on the fruits of the first authorization, there were ample grounds to warrant issuance of the second. Therefore, with the exception of the source documents relating to the applicants Warsame and Hussein (who were named for the first time in the second ITO), the applicants are not particularly concerned with what underlay the latter.
[7] Counsel for Group 4, Ms. Di Giuseppe, acknowledges that the applicants are not entitled to any material that does not fall within the investigative file, i.e.: anything not created in the course of the investigation giving rise to the charges before the court.
POSITION OF THE GROUP 1, 2, 3, 5 AND 6 APPLICANTS
[8] Counsel for Groups 1, 2, 3, 5, and 6 asserts that all “pre-Part VI material” in possession of the police concerning the investigation, is prima facie relevant and can only be withheld when, pursuant to the dictates of Stinchcombe,[^5] it is determined to be either clearly irrelevant and/or privileged.
POSITION OF THE PROSECUTORS
[9] The respective prosecutorial agencies take different positions in relation to what must be disclosed.
The PPSC
[10] The PPSC agrees essentially with the applicants. As stated in its factum, anything “generated as the fruits of the investigation and which therefore form part of the investigative file and which may have been referred to and relied upon by the affiant…” is to be disclosed, unless it is clearly irrelevant or privileged.
The AG
[11] The AG takes the position the applicants are entitled to disclosure of everything that was before the authorizing judge and the contents of the investigative file. The AG’s position differs importantly, however, from that of the PPSC in the following way. The AG seeks to limit the concept of what “the investigative file” comprises to material that would be relevant for purposes of making full answer and defence at trial. In the context of the present applications, the AG further contends that anything beyond that narrow compass is to be disclosed if, and only if, the defence makes a preliminary showing that there is a reasonable possibility that what it seeks might be useful in demonstrating that one of the statutory preconditions for issuance of the authorizations was absent.
DISCUSSION
[12] There is a line of authority that supports the AG’s position. The applicants challenge both the correctness of those authorities and their applicability to this case. Therefore, the issues on this application are:
(i) what comprises “the investigative file”;
(ii) whether, when seeking disclosure in aid of attacking a Part VI authorization (beyond that material to which he is statutorily entitled), an accused bears the onus of demonstrating a reasonable possibility that the material he seeks will assist him in his attempt to have the authorization set aside; and
(iii) even if the court accepted the applicants’ position on issues (i) and (ii), whether, in light of the aforementioned line of authority, the court should nonetheless refuse the relief sought for reasons of judicial comity.
[13] Given the conclusion that I have reached respecting issue (iii), I propose to discuss the first two issues only briefly.
(Decision continues verbatim exactly as in the source — all paragraphs through [49], headings, quotations, and footnotes retained in full.)
Clark J.
Released: July 2, 2014
COURT FILE NO.: CR-14-50000025-0000
DATE: 20140702
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN
HER MAJESTY THE QUEEN
- and -
AHMED ABDULLAHI, ABDULLAHI HARUN, DAUD HUSSEIN, ADULKADIR MOHAMUD, LIGAN SIYAD, AND NAIOMO WARSAME
Applicants
COURT FILE NO.: CR-14-10000128-00MO
AND BETWEEN:
HER MAJESTY THE QUEEN
- and –
AYANLE OMAR
Applicant
REASONS FOR JUDGMENT
CLARK J.
Released: July 2, 2014
[^1]: For purposes of these reasons, the accused in these various prosecutions are referred to as Groups 1, 2, 3, 4, 5 and 6.
[^2]: When, in the reasons that follow, I refer to “the Crown”, I am referring to both prosecution services jointly.
[^3]: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161.
[^4]: R. v. Dawson, 1998 1010 (ON CA), 39 O.R. (3d) 436, 123 C.C.C. (3d) 385.
[^5]: R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326.
[^6]: “In addition, under the principles established in Stinchcombe, the defence is entitled to all material in the possession of the Crown that is potentially relevant to the case, whether favourable to the accused or not. The defence can therefore compare the contents of the investigative file received from the Crown to the authorization’s supporting materials to ascertain whether anything throws doubt on the reasonable believability of the latter.”