R. v. Guindon, 2016 ONSC 1140

CITATION: R. v. Guindon, 2016 ONSC 1140

OSHAWA COURT FILE NO.: 13543/14

DATE: 20160216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

HARLEY GUINDON

Applicant

Howard Piafsky and James Clark, for the Respondent

Alan Richter, for Harley Guindon

HEARD: January 28, 2016

RULING ON THE RESPONDENT’S MOTION TO DISMISS THE COSTS APPLICATION

BIRD J.:

Introduction:

[1] The Applicant, Harley Guindon, seeks costs against the Crown pursuant to section 24(1) of the Charter as a result of alleged misconduct by the Crown in the form of material non-disclosure.

[2] Mr. Guindon was charged along with several other people with drug related offences, which were alleged to have occurred between March and August of 2012. In the spring of 2011, the Durham Regional Police Service began receiving information that Mr. Guindon, who had recently been released from the penitentiary, was involved in drug trafficking in the Oshawa area. They conducted some surveillance at that time but did not have the necessary resources to devote to a full-scale investigation. That changed toward the end of 2011 and Project Kingfisher began. The purpose of the project was to investigate the alleged drug trafficking activities of Mr. Guindon and his associates.

[3] In early 2012, the police applied for and were granted DNR and tracking warrants that targeted Mr. Guindon and others, including Bradley Cox. Although Mr. Cox was never charged as part of Project Kingfisher, he was a named target of the DNR and tracking warrant applications. Project Kingfisher culminated with two wiretap authorizations being granted in the spring of 2012.

[4] Evidence was also gathered as a result of a wiretap authorization that was obtained in relation to a homicide that occurred on January 28, 2012 at a known crack house in Oshawa. The police investigation into the homicide was dubbed Project Reliant. The authorization, which was issued on May 29, 2012, named Mr. Guindon and others as known parties. The purpose of that authorization was not to investigate Mr. Guindon’s drug activities, but it was reasonably foreseen that drug related conversations would be intercepted.

[5] In the course of an application by Mr. Guindon to exclude the results of the DNR and tracking warrants pursuant to section 24(2) of the Charter, Constable James Ebdon testified before me. A complete description of the officer’s evidence and its relevance to the Charter application is contained in my Reasons for Judgment reported at ONSC 4028. The Applicant alleged that the conduct of Constable Ebdon in relation to Mr. Cox, as captured on a surveillance video, was sufficiently serious such as to cast doubt on the validity of all of the information received from confidential sources. While I had significant concerns about the conduct of Constable Ebdon, I did not find that it tainted the informant pool and Mr. Guindon’s Charter application was dismissed.

[6] Constable Ebdon testified twice during the hearing of the pre-trial application. When he testified the first time, he was unable to recall the precise date of his encounter with Mr. Cox. Constable Ebdon testified that he made no notes of the incident and did not file any type of occurrence report about it. The hearing of the application proceeded on that basis. Over the course of the weekend following his evidence, the trial Crowns became aware of the existence of a report authored by Constable Ebdon dated December 6, 2011. Although the report was inconsistent with the interaction captured on video, it was clearly in relation to his dealings with Mr. Cox.

[7] The Crown immediately disclosed this report to all counsel and Constable Ebdon was recalled to testify about it, as was the affiant of the informations to obtain the DNR and tracking warrants. I heard further submissions on the section 8 application in light of the new evidence. My Ruling was rendered only after the additional evidence and submissions were heard.

[8] On September 3, 2015, the Crown stayed all of the charges against the Applicant and his co-accused pursuant to section 579(1) of the Criminal Code. The Crown is not obligated to provide an explanation for this exercise of its discretion and did not do so.

[9] There was no reference to Constable Ebdon’s encounter with Mr. Cox in the informations to obtain (ITO’s), the DNR and tracking warrants, or in the affidavit in support of the Kingfisher wiretap authorizations. However, the report was referred to in the affidavit to obtain the Project Reliant wiretap authorization. The affiant of the Reliant application was not directly involved in the Kingfisher investigation and did not author the Kingfisher ITO’s or affidavits.

[10] The Reliant affidavit was heavily redacted before it was disclosed to the defence. The references to Constable Ebdon’s interaction with Mr. Cox were completely edited out. In fact, the editing was so extensive that in Reasons for Judgment reported at ONSC 4794, I found that the affidavit, as edited, could not provide reasonable grounds to justify the interceptions. There were valid reasons for the extensive editing because the authorization relates to a homicide that is still unsolved.

[11] The Reliant affidavit was lengthy. The grounds in support of the authorization consist of 293 paragraphs. Of those, only 101 remain in the edited affidavit and portions of some of those paragraphs contain additional redactions. The reference to the report of Constable Ebdon was brief and was certainly not a focal point of the affidavit.

[12] Anya Weiler was the Crown who edited the Reliant affidavit, with the assistance of the affiant, in January of 2013. Ms. Weiler was not one of the two trial Crowns who appeared before me on the Kingfisher prosecution. However, she was counsel for the Crown along with Mr. Clark at the preliminary hearing, and she responded to many disclosure requests in the course of the proceedings. The Applicant submits that Ms. Weiler was aware of the existence of Constable Ebdon’s report by virtue of her involvement in editing the Reliant affidavit, and should have disclosed it in the Kingfisher prosecution.

[13] Counsel for the Applicant made his interest in Constable Ebdon well known and sought to call him as a witness at the preliminary hearing. In a letter dated May 14, 2013, Ms. Weiler acknowledged being aware of the misconduct of Constable Ebdon, as captured on the video, and expressed her disapproval of it. She took the position that because he had not been directly involved in the Kingfisher investigation and had never met the Applicant, he did not have any relevant evidence to offer. The Crown was ultimately successful in having a subpoena that was served on the officer requiring him to testify at the preliminary hearing quashed.

[14] The Applicant submits that the failure of Ms. Weiler to disclose the report of Constable Ebdon, which she would have been aware of as a result of editing the Reliant affidavit, constitutes misconduct of such a nature as to attract a costs award against the Crown pursuant to section 24(1) of the Charter.

[15] The Crown takes the position that Ms. Weiler was acting in good faith at all times with respect to her view of the relevance of Constable Ebdon to the Kingfisher prosecution. Even if her decision not to disclose the report was incorrect, it was not based on mala fides and does not rise to the level of conduct that is required to support an order for costs. As a result, the Crown has brought a motion seeking to have the application for costs summarily dismissed on the basis that it has no reasonable prospect of success.

The Request for Additional Disclosure:

[16] As a preliminary matter, the Applicant seeks an order for additional disclosure. He wants an audit of the computer system of the Durham Regional Police Service to determine which officers accessed the report authored by Constable Ebdon and when they did so. Specifically, the Applicant wants to know if and when the affiant of the DNR and tracking warrants accessed the report. He submits this is relevant to whether the failure of the affiant to include it in his ITO was intentional.

[17] In my Reasons for Judgment on the section 8 application, I expressed concern about the failure of the affiant to reference the interaction between Constable Ebdon and Mr. Cox in the ITO’s. The report in question would have come to the affiant’s attention if he queried Mr. Cox’s name in the police system, as is routinely done in the preparation of search warrant applications. However, even if the affiant is shown to have accessed the report prior to swearing his ITO’s, this would only be relevant to whether he fulfilled his duty as an affiant to be full, frank and fair. This issue was argued before me, and I found that there were shortcomings in the ITO’s that were significant and demonstrated a lack of appreciation by the affiant of his role and the diligence that must be exercised. His ITO’s contained overstatements and omitted relevant information that was readily available to him. However, I did not find that the affiant had an intention to mislead the issuing justice. I was satisfied that the deficiencies in the ITO’s were the result of sloppiness, short-cuts and a failure to understand what is required of an affiant.

[18] This analysis would not change even if an audit of the computer system revealed that the affiant had accessed Constable Ebdon’s report on a specific date prior to swearing the ITO’s. Further, there is no link between the affiant’s omission and the Crown. The Crown was not involved in the preparation of the DNR and tracking warrants, and the Applicant takes no issue with the vetting process undertaken in relation to those ITO’s. As a result, the disclosure sought in relation to the police computer system would not advance the application for costs in light of the specific allegation of Crown misconduct made in this case.

[19] In addition, the Applicant wants an opportunity to question the affiant of the Reliant affidavit about the editing process he undertook with Ms. Weiler. He submits this is relevant to Ms. Weiler’s knowledge of the falsity of Constable Ebdon’s report and could reveal that the Crown was engaged in a conspiracy to cover it up. Absent this additional information, the Applicant concedes that he cannot establish mala fides on the part of the Crown based on the existing record.

[20] The Applicant’s position is that if he were permitted to question the affiant about why the reference to Constable Ebdon’s report was redacted, it might reveal a conspiracy between the police and the Crown to cover it up. This allegation is tantamount to suggesting that Ms. Weiler conspired with the police to obstruct justice. It is an extremely serious accusation that would, if true, amount to criminal conduct on the part of Crown counsel. The Applicant’s theory is nothing more than speculation without any evidentiary foundation.

[21] In R. v. Durette, 1992 CanLII 2779 (ON CA), [1992] O.J. No. 1044 (C.A.) (reversed on other grounds 1994 CanLII 123 (SCC), [1994] S.C.J. No. 22), Finlayson J.A. stated that the accused bears the burden of making a tenable allegation of mala fides on the part of the Crown. It must be supported by the record, or if the record is insufficient by an offer of proof. Otherwise, the court is entitled to assume that the Crown exercised its discretion properly and not for any improper motives. Further, an allegation of impropriety cannot be an irresponsible one, made solely for the purpose of engaging in a fishing expedition in the hope that something of value will materialize (at paragraphs 37 and 39). That is exactly what the Applicant is attempting to do in this case – embark on a fishing expedition, in the hope that the affiant may impugn the motives of the Crown in the exercise of her discretion to edit the affidavit.

[22] There is no evidentiary foundation for the suggestion that the redaction of Constable Ebdon’s report was done for an improper purpose. That is particularly so when it is considered in the context of the redactions as a whole. The vast majority of the affidavit was redacted, leaving so little of substance that it resulted in a finding that it violated section 8 of the Charter. There is nothing in the record that would support any motive for a senior Crown to commit a criminal offence and risk her reputation and career to protect Constable Ebdon. In fact, in her May 14, 2013 letter, Ms. Weiler expressed her understandable disapproval of the conduct of the officer. There is no evidence that she knew him, or had even met him when she edited the Reliant affiant. Moreover, nothing the Crown did could have had the effect of protecting Constable Ebdon because the video of his misconduct was in the public domain on YouTube. When the Reliant affidavit was edited, the officer had already been disciplined under the Police Services Act, R.S.O. 1990 c. P.15, as a result of the video being made public. In those circumstances, it would make no sense for the Crown to conspire with the police in an attempt to protect an officer whose misconduct was already widely known.

[23] The Applicant filed extensive material on this application and I had the benefit of hearing the viva voce evidence on the related Charter applications. There is nothing in any of the material filed or in the testimony that provides any reliable foundation for the allegation that Ms. Weiler deliberately redacted the references to Constable Ebdon’s report for an improper purpose. Permitting the Applicant to call the Reliant affiant to question him about the editing process of a wiretap authorization involving an unsolved homicide, over which the Crown continues to assert privilege, would be to permit the type of fishing expedition that courts have consistently held is inappropriate.

[24] As a result, the Crown’s motion to dismiss the application as having no reasonable prospect of success will be considered based on the existing record, which is extensive.

The Test for Summary Dismissal:

[25] Rule 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) allows a judge to conduct a preliminary assessment of the merits of any application on the basis of the material filed, and dismiss it without further hearing if satisfied that there is no reasonable prospect that the application could succeed. In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] S.C.J. No. 67, Charron J. stated that one mechanism a court has to control its process is to refuse to embark on an evidentiary hearing if there is no reasonable likelihood that such a hearing would assist in determining the issues before the court (at paragraph 35).

[26] In R. v. Khan, 2014 ONSC 5664, [2014] O.J. No. 6488 (S.C.J.), Code J. thoroughly reviewed the law relating to motions to summarily dismiss applications for costs based on prosecutorial misconduct. He concluded that the relevant authorities stand for the following five principles (at paragraph 153):

(a) There is a presumption that Crown discretion is exercised on a bona fide basis.

(b) To displace that presumption, there must be a “tenable allegation of mala fides”.

(c) The meaning of a “tenable allegation” is one that has an “air of reality”, in the sense that there is “some realistic possibility that the allegations can be substantiated” and “some possibility that the allegations will lead to a remedy”.

(d) The normal way of demonstrating this “air of reality” is “by way of affidavit” or by pointing to “some foundation in the record” or, exceptionally, “if the record is lacking or insufficient, by an offer of proof”.

(e) What will not suffice, is an “irresponsible allegation made solely for the purpose of initiating a ‘fishing expedition’ in the hope that something of value will accrue to the defence” or a “bald assertion” by counsel or a “colourful … allegation” by counsel.

[27] The Applicant has conceded that the existing record does not disclose mala fides on the part of the Crown. The question is then, whether the delay in disclosing the report of Constable Ebdon is sufficient in and of itself to justify an award of costs against the Crown.

[28] The Court of Appeal recently considered the issue of a costs award for non-disclosure in R. v. Singh, 2016 ONCA 108. In awarding over $500,000 in costs against the Crown, the trial judge found that the Crown was negligent in failing to disclose cellular phone records. Notably, he found that there was no evidence of any deliberate misconduct on the part of the Crown.

[29] The Court of Appeal began its analysis by stating that it is well accepted that a trial judge may order costs against the Crown for a breach of its disclosure obligations. However, Crown counsel is not held to a standard of perfection and not every failure to disclose will justify a costs award. Rather, there must be a marked and unacceptable departure from the reasonable standards expected of the prosecution (at paragraph 32). Quoting from the decision of the Supreme Court of Canada in Henry v. British Columbia (Attorney General) 2015 SCC 24, the court distinguished between highly blameworthy conduct, such as the intentional suppression of evidence, and good faith errors in judgment about the relevance of tangential information. The court accepted that Crown counsel will, from time to time, make good faith errors in relation to disclosure (at paragraph 36).

[30] As a result, a costs award against the Crown will not be an “appropriate and just remedy” under section 24(1) of the Charter, absent a finding that there was a marked and unacceptable departure from the reasonable standards expected of the prosecution, or something that is “rare” or “unique” that “must at least result in something akin to an extreme hardship on the defendant” (at paragraph 38).

[31] On the facts of Singh, supra, even a failure to disclose cellular phone records which were clearly relevant to the trial did not justify a costs award against the Crown. While the conduct was arguably negligent, it did not rise to the level required to sustain such an order.

[32] The court also stated that it is impermissible to visit the failings of the police on the Crown on a costs application, unless the Crown has participated in the misconduct. There is no question that the conduct of Constable Ebdon was serious and worthy of condemnation. However, if the Applicant seeks a remedy for the misconduct of the officer, the appropriate forum for that is civil court.

[33] The Crown’s position is that at the highest it should have disclosed Constable Ebdon’s report sooner. At most, this reflects one error in judgment on a complicated case involving an enormous amount of disclosure. I agree. Constable Ebdon was not directly involved in Project Kingfisher and never met the Applicant. The video suggests that the officer had an interest in learning more about the Applicant, although the reason for this is unknown. Mr. Cox was not charged as a result of Project Kingfisher. The Crown never intended to call Constable Ebdon as a witness. That, of course, doesn’t relieve the Crown of its obligation to disclose all material that is possibly relevant. It does, however, put into context the opinion of Ms. Weiler that Constable Ebdon had no relevance to the case.

[34] In my view, Constable Ebdon’s report was relevant to the section 8 applications in relation to the DNR and tracking warrants. Specifically, the failure of the affiant to include the report in the ITO’s was relevant to whether he made full, frank and fair disclosure to the authorizing judge. This limited relevance is apparent now, after a full hearing of the Charter applications. While it was reasonable for the Crown to have expected the Applicant and his co-accused to bring section 8 motions, the Crown cannot be expected to anticipate every legal argument an Applicant may make. The specific argument advanced by the Applicant in this case was a unique one. He alleged that the entire informant pool had been tainted by the conduct of Constable Ebdon. Such an argument would not necessarily be foreseeable to the Crown when decisions about disclosure were being made. As a result, Ms. Weiler’s opinion that Constable Ebdon was not relevant to the Kingfisher case is understandable.

[35] Further, the Applicant’s position is premised on the fact that Ms. Weiler had a specific recollection of the reference in the Reliant affidavit to Constable Ebdon’s report when she took the position that he was not a material witness. The Reliant affidavit was edited several months prior to the Kingfisher preliminary hearing. It was a very lengthy affidavit consisting of more than 300 paragraphs. As noted, the reference to the report was one of many things redacted from the affidavit, and there is no reason to believe that Ms. Weiler would recall the substance of each edit.

[36] While she can be expected to have carefully reviewed the affidavit for the purpose of editing it, this does not mean that she memorized its contents. It is quite possible that several months after editing the Reliant affidavit Ms. Weiler had no independent recollection of the brief reference in it to Constable Ebdon’s report. Crown counsel normally have carriage of more than one case at a time. As a senior prosecutor, Ms. Weiler likely had a significant workload that extended beyond Project Kingfisher. This is not to suggest that a busy Crown can be less than diligent in fulfilling his or her duties on each case they have responsibility for. Rather, it is a recognition of the reality that absent a photographic memory, a Crown cannot be expected to recall every detail about a document months after reviewing it. There is no evidence that Ms. Weiler had a specific recollection of the reference to Constable Ebdon’s report in the Reliant affidavit and deliberately decided not to disclose it.

[37] At the highest, the Crown made an error in judgment by not appreciating the potential relevance of Constable Ebdon’s report to a section 8 application. This falls at the very low end of the spectrum, described by the court in Singh as being an error in judgment about the relevance of certain tangential information. It is far less serious than the omission in Singh, which involved a failure to disclosure clearly relevant cellular phone records that the Crown knew were in existence. Consequently, the failure of the Crown to disclose Constable Ebdon’s report prior to June of 2015 does not approach the level of misconduct necessary to justify an order for costs.

[38] In addition, the delay in disclosing the report did not actually have an adverse effect on the Applicant’s ability to make full answer and defence. In R. v. Elliott, 2003 CanLII 24447 (ON CA), [2003] O.J. No. 4694 (C.A.), the court held that a delay in disclosure alone does not establish a Charter violation. The Applicant must also demonstrate that the delay prejudiced his ability to make full answer and defence (at paragraph 139). In this case, the Applicant was permitted to re-open his Charter application to call Constable Ebdon and the affiant of the DNR and tracking warrants to testify for a second time after the report was disclosed. My judgment on the section 8 application was, therefore, based on a complete record that included the report and Constable Ebdon’s testimony about it. Further, the charges against the Applicant were stayed by the Crown so he achieved the ultimate remedy. Far from being prejudiced in his ability to make full answer and defence, the Applicant was fully successful in defending himself.

[39] At the most, the completion of the section 8 application was delayed by a few days as a result of the late disclosure of the report. This falls far short of being the type of exceptional circumstance where fairness requires that the Applicant not bear the financial burden of being involved in the litigation, as contemplated by the court in R. v. Tiffin, 2008 ONCA 306, [2008] O.J. No. 1525 (C.A.) (at paragraph 94). As in Singh there is no evidence of extreme hardship to the Applicant, nor is there evidence that he was unable to defend himself (at paragraph 44). As a result, there is no basis to award costs on the ground of extreme hardship.

Conclusion:

[40] For the foregoing reasons, the application for costs against the Crown has no reasonable prospect of success. The Respondent’s motion to dismiss the application pursuant to Rule 34.02 is granted.

Justice L. Bird

Released: February 16, 2016