ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-G1037
DATE: 2014/09/04
OTTAWA
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Ashley Windebank
Applicant
– and –
Mohamed Mohamed
Co-Accused Applicant
James Bocking, for the Provincial Crown and Melody Foerster, for the Federal Crown for the Respondent
Natasha J. Calvinho and David Gault, for the Applicant
Neil Weinstein, for the Co-Accused Applicant
Vincent Westwick, Counsel for Record Holder – Ottawa Police Service
HEARD: September 3, 2014
Decision on motion – third party records
PHILLIPS J.
[1] Ashley Windebank and Mohamed Mohamed are accused of possessing a controlled substance for the purpose of trafficking as well as possessing a firearm. Briefly stated, the anticipated evidence is that upon a warrant being executed at their shared apartment, the impugned items were found therein.
[2] I am informed that both accused persons plan during their joint trial to blame the other with respect to possession of the items in question. Both, therefore, will be seeking to undermine the other’s credibility as well as suggesting that the other is of bad character and has a propensity for drug dealing and related behavior like firearm possession.
[3] Both Ms. Windebank and Mr. Mohamed have criminal records, including convictions for drug trafficking. The Crown has disclosed all occurrence reports formerly in the possession of the Ottawa Police Service (OPS) relating to all convictions on those criminal records. The issue now to be determined is whether this Court should order disclosure of occurrence reports in the possession of OPS pertaining to charges that have been either withdrawn by the Crown, stayed, or have resulted in acquittals. Those charges involve unproven allegations of drug trafficking and possession of stolen property with respect to both, as well as some unproven allegations of significant violence on the part of Mr. Mohamed.
[4] In R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 at paras 15-34 the Supreme Court of Canada established a disclosure regime for records in the hands of “third parties” that are “likely relevant” to an issue at trial. Under O’Connor, an application is made to the court and the judge determines whether production should be compelled in accordance with a two-stage test. At the first stage, the applicant has an onus to establish the likely relevance of the record. At the second stage, the judge examines the record and determines whether, and to what extent, it should be produced for the accused. It is during the second stage that privacy interests are balanced against the right to full answer and defense.
[5] The question for the Court at the first stage of the O’Connor procedure, therefore, is as follows: is it likely that information relating to past criminal charges which were either withdrawn, stayed or which resulted in verdicts of acquittal will be relevant at trial on issues of credibility, character or propensity? It is important here that relevance not be conflated with admissibility or weight. While it will eventually be necessary to determine the joint trial appropriateness of bad character or propensity evidence and whether the probative value of a piece of evidence outweighs any prejudicial effect, that analysis is more properly done during the second stage of the O’Connor procedure as part of contextualizing the right to make full answer and defense.
[6] As explained by Professors D. Paciocco (as he then was) and L. Stuesser in The Law Of Evidence (Irwin Law: 2009): Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence. The Supreme Court of Canada set out the threshold in R. v. Arp (1998) 1998 769 (SCC), 129 C.C.C. (3d) 321 at 338 (S.C.C.):
To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. …As a consequence, there is no minimum probative value required for evidence to be relevant.
[7] Are the unproven allegations chronicled on both Mr. Mohamed and Ms. Windebank’s criminal records probative, even if only minimally, of anything? In my view, the answer in this case to this very preliminary and basic threshold question is yes. I find for purposes of the first stage of the O’Connor procedure that there is likely relevance with respect to occurrence reports relating to the withdrawn allegations of both accused persons’ involvement in the drug trade. As well, again stressing that I am focussed only on the threshold “likely relevance” stage, I can see likely relevance vis-à-vis credibility with respect to the various withdrawn allegations of dishonesty inherent in the possession of stolen property charges. The withdrawn allegations, while unproven, could reasonably amount to some evidence of relevant prior discreditable conduct, albeit of possibly very minimal weight. In this regard I am guided by the decision of Madam Justice Thorburn in R. v. Frater [2008] O.J. No.5329 commencing at paragraph 20:
20 The Supreme Court of Canada in Titus v. R. (1983), 1983 49 (SCC), 2 C.C.C.(3d) 321 held that a witness could be cross-examined regarding an outstanding indictment that had not yet come to trial at the time of cross-examination. In R. v. Cullen (1989), 1989 7241 (ON CA), 52 C.C.C. (3d) 459 (C.A.), where a complainant advised that she had not been convicted of a criminal offence but had a conditional discharge for a criminal offence, the Court of Appeal held that the trial judge ought not to have restricted defence counsel's cross-examination to ask only whether she had been convicted of a criminal offence. Defence counsel was entitled to probe the necessary underlying facts.
21 I see no reason to distinguish the conclusions reached in Titus and Cullen above, from the reasoning to be applied to the incidents in this case. Where charges were withdrawn or, in fact, never laid, no final determination of guilt or acquittal was made.
22 Charges may be withdrawn for a number of reasons. A withdrawal of a charge does not therefore mean that there has been a determination of guilt or acquittal on the charges laid against the Complainant. Had charges never been laid, the parties agree that the Complainant could be cross-examined on alleged prior discreditable conduct relevant to this proceeding. Therefore, there would seem to be no reason in principle why cross-examination would be refused solely on the basis that charges were withdrawn or resulted in a discharge since the Applicants may adduce evidence of prior disreputable conduct without any charges being laid.
23 Charges that have resulted in an absolute or conditional discharge, or charges that have not resulted in convictions may nonetheless be evidence of discreditable conduct.
[8] I reiterate that I am focused only on the first stage of the O’Connor procedure in the context of pre-trial disclosure. I am far from determining whether the probative value of the information in question is likely to be outweighed by prejudicial effect on either accused person’s fair trial interests (see R. v. Akins, 2002 44926 (ON CA), [2002] O.J. No. 1885). That determination strikes me as central in weighing the effect of non-disclosure of the materials on the right the full answer and defense, the overall assessment of which will be balanced against any privacy interests apparent in the records.
[9] For present purposes, I order production to the Court of a police synopsis “front sheet” only relating to the charges outlined in both defence counsel’s submissions, with the exception of anything to do with an acquittal. I invite the Crown to redact any information over which privilege is asserted. I will then assess the privacy interest(s), if any, in the materials in the contextual manner outlined by the Supreme Court of Canada in R. v. Quesnelle [2014] SCC 46 and weigh those interests against the right to make full answer and defence.
The Honorable Justice Kevin Phillips
Released: September 4, 2014
OTTAWA COURT FILE NO.: 12-G1037
DATE: 2014/09/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Ashley Windebank
Applicant
– and –
Mohamed Mohamed
Co-Accused Applicant
Decision on motion – third party records
PHILLIPS J.
Released: September 4, 2014