Court File and Parties
COURT FILE NO.: CR-16-002-00MO DATE: 2016-05-02 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – George Newburgh Respondent
COUNSEL: M. Huneault, for the Crown Chantal Proulx, Agent for the Director of Public Prosecutions Michael Anne MacDonald, for the Respondent
HEARD: April 12, 2016
Decision on Application
HENNESSY, J.
[1] The agents for the federal and provincial Crown bring these applications to quash the subpoenas issued in respect of two prosecutors.
Background
[2] The accused is charged on a two count Information for the offences of producing and possessing marijuana. Officer Catcher was involved in the detention and receiving a statement from the accused on these matters. The accused alleges that this officer has a past history of misconduct and use of excessive force, evidence of which he wishes to compel from the prosecutors.
[3] Counsel for the accused sought subpoenas compelling the prosecutors to attend and give evidence at the preliminary hearing. The defendant asserts that the officer’s history of a pattern of abuse undermines the credibility of the officer and is therefore material evidence at the hearing of these charges.
[4] On the request of and on the basis of representations made by counsel for the defendant Newburgh, the Justice of the Peace issued subpoenas for:
a. David Holmes, standing agent for the Public Prosecution Service of Canada who at the time had carriage of the Newburgh prosecution; and
b. Steven Scharger the Crown Attorney for the District of Parry Sound and agent of the Attorney General of Ontario.
General Principles
[5] Section 698(1) of the Criminal Code of Canada provides that where a person is likely to give material evidence in a proceeding, a subpoena may be issued. Likelihood equates to probability. A mere possibility does not suffice. (R. v. Harris, 1994 ONCA 2986, [1994] O.J. No. 1875 at paras. 4 and 5; R. v. Elliott, (2003), 2003 ONCA 24447, 181 C.C.C. (3d) 118 (Ont. C.A.) at paras. 114 to 118)
[6] As a general principle, Crown counsel are subject to the process of the court. They are not immune from subpoena. R. v. Sungolia, [1992] O.J. No. 3718 (General Division)
[7] The party who obtained the subpoena bears the burden of demonstrating that there is a proper basis for its issuance. In this case, the defense must establish on a balance of probabilities that the two prosecutors are likely to give material evidence. (R. v. Harris, 1994 ONCA 2986, [1994] O.J. No. 1875 at paras. 4 and 5, R. v. Lindsay, 2004 ONSC 30085, [2004] O.J. No. 3858 (S.C.) at para. 24, R. v. Brown, [1997] O.J. No. 6171 (G.D.) at para. 12)
The Moving Parties
[8] The applications were brought by the Director of Public Prosecutions with respect to the subpoena against their standing agent, and by provincial Crown with respect to the subpoena against the Crown attorney for the District of Parry Sound. It is not controversial that the Crown attorney has no involvement in or responsibility for the drug prosecution against Mr. Newburgh.
[9] Although the applications are separate, Crown counsel cooperated on the argument. The Director of Public Prosecutions relied on the submissions made by the provincial Crown and made one further submission on the issue of necessity which is relevant only to the federal prosecutor as he is the prosecutor on this case.
[10] These reasons will deal with the two applications together but for that one issue of necessity as it relates to the prosecutor.
Hearing before Justice of the Peace Hilton
[11] The hearing before the Justice of the Peace was very brief and excerpts of the relevant portions of the transcript is included in these reasons.
[12] In a nutshell, as set out in her factum, defence counsel made the following submissions to the Justice of the Peace that the “experience of Mr. Holmes and Mr. Scharger in dealing with similar complaints of excess use of force by P.C. Catcher, made by disconnected individuals, unrelated to one another in any way, shows a pattern of conduct on the part of the officer. Such pattern of abuse of police powers undermines the credibility of the officer and is relevant to the accused’s ability to make full answer and defence.”
[13] As I understand the argument, the defendant asserts that the two prosecutors have knowledge of a pattern of conduct on the part of the officer who conducted the search and heard the statements that amount to evidence that is likely material at the preliminary hearing. Defence counsel acknowledges that currently there are no outstanding Charter applications seeking declarations of breaches of s. 7 or 8. In any event, s. 7 or 8 applications would not be heard at the preliminary hearing. However, defence counsel submits that this evidence remains likely material at the preliminary hearing.
[14] Before the Justice of the Peace, defence counsel made the following comments:
There’s a long history to the matter, but it relates to defence position that there is a police officer that is – has a history of malfeasance and is a corrupt officer and that David Holmes, as the federal prosecutor has been involved with this specific officer and has given him personal legal advice in respect of MacNeil reports requested by a number of different counsel with respect to this officer. And Mr. Scharger, who is a witness to proceedings in a judge’s chambers in the course of a judicial pretrial where a Mr. Holmes breached the rules of the pretrial to disclose to this officer confidential information which should not have never been disclosed to the officer.
I’m, as counsel, advising the court that David Holmes has relevant evidence on the issue of the malfeasance of this officer and his involvement in – as personal counsel giving personal legal advice to this officer and Mr. Scharger as the Crown Attorney was present and is a witness to Mr. Holmes having disclosed to this officer allegations of impropriety by the officer that were brought in a judicial pretrial before a judge.
[15] As a starting point, I must accept the transcript of the proceeding before the Justice of the Peace as the only material on which the Justice of the Peace made her decision. There was nothing else before her. From the transcript, we can glean the following assertions made by defence counsel:
- There is a police officer with a history of malfeasance, who is corrupt;
- That the federal prosecutor has been involved with this officer;
- That the federal prosecutor has given this officer personal legal advice with respect to MacNeil reports requested by different legal counsel;
- That the Crown attorney was a witness in a judge’s chambers during a judicial pretrial where the federal prosecutor breached the rules of the pretrial;
- That the federal prosecutor breached the rules of the pretrial to disclose to this officer confidential information which should not have been disclosed to the officer;
- That the federal prosecutor has relevant evidence on the issue of malfeasance of the officer and to his involvement in – as personal counsel giving personal legal advice to this officer; and
- That the Crown attorney was present and is a witness to the federal prosecutor having disclosed to this officer, allegations of impropriety by the officer that were brought in a judicial pretrial before a judge.
Discussion of Materiality, Admissibility and the Collateral Fact Rule
[16] The primary focus of this application is whether the evidence which it is assumed that the officers can give is likely material to the proceeding. As a second point, the necessity of these specific individuals to give the proposed evidence is in issue.
[17] I find it best to start with a definition of materiality as found in Watt’s Manual of Criminal Evidence 2015:
Materiality is a legal concept that defines the status of the propositions that a party seeks to establish by evidence to the case at large. What matters is whether the fact the party seeks to prove bears any relation to the issues in the case.
What is in issue in a case, thus what is material, is determined by the applicable substantive law, the issues raised by the allegations in the indictment (information) and the applicable procedural law.
Evidence is immaterial if the proposition of fact in that it is offered to prove is not, under the governing substantive and procedure law, an issue before the court. Evidence is material if it is offered to prove or disprove a fact in issue.
See also R. v. Baltovich, [2007] O.J. No. 2506 (S.C.J.) at paras. 71 and 73
[18] Defence counsel argues that the assertions made before the Justice of the Peace are likely material to the proceedings and therefore that these two prosecutors can give likely material evidence.
[19] Defence counsel contends that the assertions she made before the Justice of the Peace form the basis for a challenge to the credibility of the officer involved in the search in this case. She acknowledges that the assumed evidence does not seek to prove or disprove possession or production of marijuana. Defence counsel stated that the only evidence on the search and circumstances surrounding the statement will come from the officer and the defendant. She states that their evidence will likely offer competing narratives and that the evidence she seeks to call will present a challenge to the officer’s credibility.
[20] In support of her position on this application, defence counsel relied upon material from an unrelated prosecution where the defence filed a request for disclosure relating to Officer Catcher who allegedly drew his firearm in the course of the arrest. The second document upon which the defence relies is a letter of complaint from a civilian who witnesses an arrest, allegedly by Officer Catcher, where allegedly there was an excessive use of force. In the instant case, the defendant has deposed that he did not voluntarily allow the officer into his home where the marijuana was found, but that he did so under the threat of violence. The defendant deposed that these other accounts of the officer’s conduct are similar to the officer’s conduct in his own case.
[21] The Crown argues that evidence which goes strictly to credibility is governed by the collateral fact rule which prohibits the introduction of evidence for the sole purpose of contradicting a witness’s testimony concerning a collateral fact. As I understand the possible evidence of the prosecutors, it has to do only with their knowledge of past and unrelated conduct of the officer. It does not relate to any conduct of this officer in the circumstances of his detention or arrest or receiving a statement from Mr. Newburgh.
[22] I turn again to the clear statement of the law in Watt’s Manual of Criminal Evidence for a comment on the collateral fact rule. “The rule prohibits the introduction of evidence for the sole purpose of contradicting a witness’ testimony concerning a collateral fact… In general, matters that relate wholly and exclusively to the credibility of a non-accused witness are collateral, hence beyond the reach of contradictory evidence. … A collateral fact is one that is not connected with the issue in the case. It is one that the party would not be entitled to prove as part of its case, because it lacks relevance or connection to it.” (p. 309)
[23] I am of the view that the proposed evidence is, among other things, evidence of collateral facts.
[24] It is clear from the affidavit of Mr. Newburgh that he believes that the evidence of the two prosecutors supports his position that Officer Catcher acted in excess of his authority as part of a pattern of conduct. The issues of Officer Catcher’s alleged misconducted may be relevant to the search issue, which is properly addressed in a s. 8 Charter motion if the defence wishes to make the formal allegation of a breach of Mr. Newburgh’s Charter rights. So far there is no such application before the court.
[25] I am satisfied that counsel for the defendant did not show either before the issuing Justice of the Peace or before this court that the evidence sought from the prosecutors was probably or likely material evidence at the preliminary hearing. There was not and is not any real basis for finding that the two proposed witnesses can give material evidence on the issues in before the preliminary hearing judge; i.e. whether there is sufficient evidence to put Mr. Newburgh on trial for the offences charged. (see R. v. Harris para. 4)
[26] The defence submission both in the factum and before the court seemed to conflate the tests for disclosure and issuance of subpoenas. The documents which were included in the motion material arising from unrelated complaints about the conduct of this officer may be relevant to a disclosure request; I make no comment or finding in that regard. However, the fact that past unrelated complaints may be relevant to a disclosure request does not imbue them with the status necessary to meet the test for the issuance of a subpoena.
[27] The argument with respect to the proposed evidence of Mr. Scharger specifically conflated the issues of disclosure and issuance of a subpoena. As best I can understand it, the defence submission before the issuing Justice of the Peace and before this court was that Mr. Scharger was aware of or could make himself aware of prior complaints about this officer. Furthermore, the defence argued that the submission before the Justice of the Peace was that Mr. Scharger had witnessed an act of alleged misconduct on the part of Mr. Holmes in his dealings with the officer. What Mr. Scharger did or didn’t know, either about this officer or about Mr. Holmes’ dealings with this officer in no way amounts to likely material evidence on the elements of the offence or even to material to a credibility challenge. However, his actual knowledge or imputed knowledge may support a request for disclosure in the appropriate circumstances.
[28] The recent decision in R. v. Harflett, 2016 ONCA 248 is a good example of a case where the court heard and considered relevant and material evidence of a “pattern of abuse” by a police officer as it related to searches. The evidence in Harflett was proffered as part of a s. 8 Charter motion asking the court to find a violation of s. 8 and to exclude the evidence from the search. The evidence in support of the allegation of a “pattern of abuse” of the officer’s search powers was in the form of two prior judicial findings. In one case, the court found a deliberate and flagrant violation of s. 8 rights. In another, the court found that the waiver to search was not informed and the Crown conceded the exclusion of evidence.
[29] The decision in Harflett addresses two issues. First, it considers where evidence in support of an allegation of “pattern of abuse” is relevant. Second, it finds that actual adjudications of prior abuse of authority are material to a consideration on this issue.
[30] The proposed evidence in this case fails to satisfy the test for the issuance of a subpoena in two ways. The proposed evidence is neither relevant nor material to the issues which will be before the preliminary hearing judge. Second, evidence in the form outstanding complaints which have not yet been the subject of a finding or adjudication do not have the status necessary to become material evidence.
[31] Finally, with respect to the issue of necessity which is unique to the Director of Public Prosecutions’ counsel contends that in addition to considering the test of likely material which applies in all cases, a trial court should be reluctant to permit counsel conducting a case to be examined as a witness. In addition to demonstrating that counsel has material evidence to give, the court must be satisfied that the evidence is necessary. Necessity has been interpreted as involving extraordinary circumstances. (See R. v. Ahma, 2008 ONSC 34268 para. 8, R. v. Elliott (2003) 2003 ONCA 24447, 181 C.C.C. (3d) 118 at para. 114-118, R. v. Chenier, [2001] O.J. No. 1279 (S.C.J.) paras. 6 and 7)
[32] The necessity test is not met where there are other sources who may adequately address the subject of the proposed evidence. The vague assertions by defence counsel before the Justice of the Peace do not in any way demonstrate that the standing agent for the Director of Public Prosecutions was the only person who could give evidence of the alleged misconduct of the officer. In fact, the material from the defence alleges that there are many others who have evidence of the alleged misconduct of the officer. Once again, I do not say that this possible evidence of others is relevant or material in this proceeding, but it is clearly not necessarily provided by the standing agent for the Director of Public Prosecutions.
[33] For the reasons above, these applications are granted. The subpoenas compelling the attendance of the two prosecutors are quashed.
The Honourable Madam Justice Patricia C. Hennessy