R. v. Campbell, 2015 ONSC 4078
CITATION: R. v. Campbell, 2015 ONSC 4078
COURT FILE NO.: CR-15-10000027-0000
DATE: 20150624
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SHAWN CAMPBELL
Applicant
Tim DiMuzio, for the Crown
A.Giletski, for the Applicant
Joanna Birenbaum, for the Complainant Patricia Bishop
Alana Abells, for Toronto Community Housing Corporation
HEARD: June 4, 2015
RULING ON THIRD PARTY RECORDS APPLICATION
B. P. O’mArra, j.
OVERVIEW
[1] On February 28, 2013 Patricia Bishop and her nephew Jonah were in her apartment at 1525 Dundas Street West in Toronto. That building is owned and operated by the Toronto Community Housing Corporation (TCHC). Someone fired gunshots through the door of the apartment. The applicant is alleged to have fired those shots and faces a number of charges including attempted murder. The crown alleges that Patricia Bishop was the intended target of the shooting.
[2] A preliminary inquiry was completed in December of 2014. A trial has been set to commence on August 10, 2015. At the preliminary inquiry Ms. Bishop testified that there were no other persons who would have a motive to fire shots into her apartment. Prior to moving to 1525 Dundas Street West she had resided at another TCHC property on Swansea Muse. She had moved from there to Dundas Street West after her nephew Jonah had been shot outside of her home. Ms. Bishop testified that after moving into 1525 Dundas Street West she learned that the applicant was also living on the same floor. After learning this, the applicant testified that she made numerous requests to TCHC to be moved as a result of a history of animosity between her and the applicant.
[3] After the shooting on February 28, 2013, a 911 call was placed by another resident regarding the incident. The caller indicated that the people in Ms. Bishop’s apartment were drug dealers and that there are often disturbances at that unit. Ms. Bishop denied that she was a drug trafficker. Apparently she has criminal convictions for violence and drug trafficking. She denied having any animosity towards any person other than the applicant.
[4] The applicant intends to pursue the following issues at trial:
(1) That someone other than Ms. Bishop may have been the intended target of the shooting.
(2) That Ms. Bishop has more enemies than she has admitted to.
(3) That there were other persons who had a motive to fire shots into Ms. Bishop’s apartment.
(4) There will be a challenge to Ms. Bishop’s claims that she was fearful of the applicant and made numerous requests to be transferred from her unit when she learned that he was living in the same building.
THE APPLICATION
[5] The applicant seeks access to records held by the TCHC in relation to the complainant. Those records relate to the duration of her tenancy at 1525 Dundas Street West up to and including February 1, 2015 as follows:
(1) All rental agreements, applications, documents and correspondence held by the TCHC related to Patricia Bishop and her tenancy at 1525 Dundas Street West, apartment 9;
(2) All logs or documents held by the TCHC related to interactions between Patricia Bishop and the TCHC including, but not limited to, logs or documentation regarding a request by Patricia Bishop to transfer units, complaints she made regarding other tenants, complaints made against her by other tenants, and correspondence from TCHC to Ms. Bishop or the other residents of apartment 9.
[6] The applicant intends to use these records for the following purposes at trial:
(1) To test the credibility and reliability of Ms. Bishop.
(2) The records may indicate that other persons resided at that unit, in particular a person who has been a target of a previous shooting. This will further demonstrate that Ms. Bishop may not have been the target.
(3) Evidence of other complaints against Ms. Bishop may assist in showing her involvement in drug dealing.
(4) This information may lead to identification of other potential persons with a motive to fire shots into the apartment.
(5) Records of the subjects and dates on which Ms. Bishop spoke to TCHC representatives will allow counsel to test her allegations that she feared the applicant and sought to be moved.
THE O’CONNOR REGIME FOR PRODUCTION OF THIRD PARTY RECORDS
[7] The offences alleged are not those subject to the statutory regime set out in sections 278.1-278.9 of the Criminal Code. The procedure outlined in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 provides the mechanism for accessing third party records that fall beyond the reach of the Stinchcombe first party disclosure regime.
[8] The procedure to be followed on an O’Connor application is as follows:
(1) The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on the third party record holder. The subpoena compels the person to whom it is directed to attend court with the targeted records or materials.
(2) The accused also brings an application, supported by appropriate affidavit evidence, showing that the records sought are likely to be relevant in his or her trial. Notice of the application is given to the prosecuting crown, the person who is the subject of the records and any other person who may have a privacy interest in the records targeted for production.
(3) The O’Connor application is brought before the judge seized with the trial, although it may be heard before the trial commences. If production is unopposed, of course, the application for production becomes moot and there is no need for a hearing.
(4) If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, in all but the rarest cases where the accused's innocence is at stake, the existence of privilege will effectively bar the accused's application for production of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of the O'Connor process.
(5) Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stage test established in O'Connor. At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, the judge may order production of the record for the court's inspection. At the next stage, with the records in hand, the judge determines whether, and to what extent, production should be ordered to the accused.
[9] The following factors should be considered in determining whether or not to order production to the Crown and accused:
(1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias and (5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record in question ... and (7) the effect on the integrity of the trial process of producing, or failing to produce, the record, having in mind the need to maintain consideration in the outcome. See O’Connor at paras. 156.
[10] An application for production of third party records must demonstrate that the records will have some direct relevance to the question of whether the accused committed the acts alleged. The accused cannot rely on speculative assertions or stereotypical assumptions in establishing likely relevance. See R. v. Batte, 2000 5751 (ON CA), [2000] O.J. No. 2184 at paras. 53, 66 and 68 (Ont. C.A.)
MATERIALS FILED ON THE APPLICATION
[11] Counsel for the complainant and counsel for TCHC have provided the following materials for my review:
(1) Exhibit 1 is an unredacted copy of the TCHC documents related to the complainant. Counsel advises that the vast majority of these documents ought not to be produced with the following exceptions:
a) she has tabbed certain documents or reports that appear to be relevant and could properly be produced to the applicant and crown counsel;
b) she has tabbed three items with a double asterisk that the court may order to be produced.
(2) Exhibits 2 and 3 are the unredacted and redacted copies respectively from TCHC relating to Shawn Campbell. Even though these records were not specifically requested by the applicant they have been provided to me for my review. There are a small number of proposed redactions in those records.
POSITION OF THE COMPLAINANT
[12] Counsel for Ms. Bishop submitted the following:
(1) Records with respect to a tenancy can be expansive and contain private and irrelevant material related to a criminal prosecution. The following categories of records are irrelevant:
a) records relating to income, payment of rent, registration of vehicles for purposes of parking, maintenance and repairs, rental agreements and forms, etc.;
b) records relating to Ms. Bishop’s request for a transfer from 1525 Dundas Street West following the shooting;
[13] Counsel advises that there are no records which contain a complaint by any tenant about Ms. Bishop or which record animosity by another tenant towards Ms. Bishop. There are no records which document or otherwise relate to the applicant’s “speculative assertion” that there are frequent disruptions at Ms. Bishop’s apartment.
[14] Counsel for the complainant advises that she consents to the release of records relating to the October 5, 2012 arson of her vehicle and the February 28, 2013 shooting which give rise to the charges herein.
POSITION ON BEHALF OF TORONTO COMMUNITY HOUSING CORPORATION
[15] While the applicant does not specifically seek access to these records I understand that the TCHC is content that a redacted copy of the records relating to Mr. Campbell be disclosed to him. There are very few proposed redactions from those records. I agree with the proposed release of those records subject to one exception on page B-5. In my view the unredacted portion of page B-5 should be disclosed.
ANALYSIS
[16] Based on the assistance of all counsel this application became focused on a small number of potentially contentious documents. I have reviewed the unredacted documents with an expansive view of production to the applicant hearing in mind potential issues at trial.
[17] I agree with the proposed production of those items flagged by Ms. Birenbaum in Exhibit 1. The three items marked with the double asterisk should not be produced.
[18] In regard to Exhibits 2 and 3, I agree with the very few redactions proposed by Ms. Abells with one exception: on page B-5 the redacted name should be produced with that page.
ORDERS
(1) Exhibit 1, the unredacted records related to the complainant are to be sealed. Those records are to be released to counsel for the complainant who will then provide copies of the documents to be produced to crown counsel and the applicant.
(2) Exhibits 2 and 3, the unredacted and redacted records related to Shawn Campbell, are to be sealed. Those records are to be released to counsel for TCHC. The redacted records, including an unredacted copy of page B-5, will be produced to counsel for the crown and applicant by Ms. Abells.
[19] If counsel has any further issues related to implementation of these orders the matter can be brought back before me on short notice.
[20] I am grateful to all counsel for their assistance on this matter.
B. P. O’Marra, J.
Released: June 24, 2015
CITATION: R. v. Campbell, 2015 ONSC 4078
COURT FILE NO.: CR-15-10000027-0000
DATE: 20150624
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
SHAWN CAMPBELL
Applicant
RULING ON A THIRD PARTY RECORDS APPLICATION
B. P. O’Marra, J.
Released: June 24, 2015