ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David McKenzie, for the Crown
Respondent
- and -
THUNDER BAY POLICE SERVICE
Howard Krongold, for the Thunder Bay Police
Respondent
- and -
Justin Lucas Beaver
Applicant
Michael Hargadon, for the Applicant
HEARD: January 4, 2016, at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Reasons for Judgment on Application
1Justin Lucas Beaver brings an O’Connor application for the production of records held by a third party, the Thunder Bay Police Service (“TBPS”). Mr. Beaver is charged with the attempted murder and aggravated assault of Scott Mesenegeeshik.
2On the first return date of this application, January 4th, 2016, the Crown agreed to produce certain information and records to Mr. Beaver. These productions were the subject of a handwritten endorsement made on that date.
3In pursuing the balance of the relief contained in this application, Mr. Beaver seeks production of “information” and records from the TBPS in two distinct categories:
A list of training courses attended by Detectives Shawn Harrison and David Tinnes during their careers as peace officers, including the dates, duration and course descriptions as well as a determination of whether they passed the courses; and
The contact information, known associates (including the contact information) and gang intelligence information pertaining to Desmond Matthews, Valentia Spoon, Conan Medicine, Brian Carpenter and Mitchell Suqanaqueb.
4The Crown took no position on the production of documents requested in this application. The TBPS opposes production of both the “information” and the records.
5The legal principles applicable to this situation were agreed upon by counsel. These principles were thoroughly and effectively set out in the factums filed by both Mr. Beaver and the TBPS. It is the application of the law to the circumstances of this matter as presented that was disputed.
6Both counsel filed affidavit evidence on this application. I do not expect the affiants will be persons who will be called as actual witnesses at this trial. I was also presented with the submissions of counsel, which due to the nature of this application, can be considered as an evidentiary basis to grant or not grant the application. However I am not prepared to make any express findings of fact concerning the matter at this point based on the material before me. I took the evidence and submissions as presented to provide the necessary context to consider the application and it was sufficient in my view, to permit me to rule on the application as filed.
7TBPS was the investigating police agency with regard to the charges facing Mr. Beaver. During its investigation, the TBPS collected evidence that will ultimately be relevant to the prosecution of Mr. Beaver. Mr. Beaver does not dispute that, in accordance with its legal duties, TBPS supplied the “fruits of the investigation” to the prosecution. Mr. Beaver does not claim that the Crown has failed in its duties to turn over to the defence all information in its possession that is not “clearly irrelevant,” pursuant to its obligations outlined by the Supreme Court of Canada in R v. Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754.
8However, Mr. Beaver now seeks “information” and records he believes to be in the possession of TBPS that were not obtained during its investigation of the assault on Mr. Mesenegeeshik.
9It is undisputed that on or about December 29th, 2012, at 245 Villa Street in the City of Thunder Bay, Mr. Mesenegeeshik suffered a vicious beating and, once unconscious, was either set on fire or had burning material piled on top of him. He has no recollection of the events of that day. His injuries have left him permanently disabled.
10Mr. Desmond Matthews was murdered in the same residence on the same date.
11Police arrived at the residence around 7 p.m. in the evening of December 29th. To be charitable, the house was in a state of disarray. The inside of the house smelled like smoke. There were at least four persons in the residence at the time, including Mr. Mesenegeehsik and Mr. Matthews. Mr. Mesenegeeshik was found lying in the basement of the residence, unconscious, blood smeared over his body, his eyes swollen shut and 18 percent of his posterior was burnt. There were a variety of blood stains all around the residence.
12Mr. Beaver was interviewed by police on January 9th, 2013. The admissibility of that statement at trial will be the subject of a further voir dire. Mr. Beaver was arrested on January 14th, 2013. He gave a further statement on that day. The admissibility of that statement will also be the subject of a further voir dire. The Crown takes the position the statements constitute a confession to the crimes as charged. Mr. Beaver claims the statements were false confessions, are unreliable and were obtained in breach of his Charter rights.
13Certain persons who were identified as being present in the residence on December 29th, 2012, were interviewed by police. A number of them made references to native street gangs in their statements to police.
The law
14In argument, there was no serious dispute about the case law which is most applicable to this matter. Counsel largely relied on the same cases from the Ontario Court of Appeal or the Supreme Court of Canada. In my view, the law applicable to this application was fairly and effectively summarized in the factum of counsel for Mr. Beaver. I relied upon it in coming to my decision. I will now set out those portions of the factum I found particularly helpful.
15The procedure and principles that apply to an application for the production of records in the hands of a third party were summarized by Watt J.A. in the recent case of R. v. Jackson, 2015 ONCA 832.
16Production is distinct from disclosure. Under the Stinchcombe disclosure regime, the Crown is obliged to disclose all relevant, non-privileged information in its possession or control to persons charged with criminal offences.
17From this, it is clear that the Crown is not obliged to disclose information that is clearly irrelevant, that is subject to a claim of privilege, that is not in the possession of the prosecuting Crown, or that does not form part of the “fruits of the investigation.” In Jackson, at paras. 79-82 Watt J.A. defined this last term of art as “material gathered during the investigation of the offence with which the accused is charged.”
18The Crown and the investigating police service responsible for laying a charge are separate entities in fact and in law. Their roles are distinct: one investigates while the other prosecutes. Neither controls the operation of the other. Neither automatically has access to records in the possession of the other.
19For the purposes of Stinchcombe disclosure, the law deems the police and the Crown to be inseparable. The artificial amalgamation of these two distinct entities is narrow, consisting only of the Crown’s obligation to disclose the fruits of the investigation and the corollary police obligation to participate in the disclosure process by disclosing to the Crown all relevant material in its possession. (R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 22-24.)
20In a criminal trial, the sole primary parties are the Crown and the accused. Materials held by other entities, be they arms of government, private corporations, private citizens, and so forth, are characterized as third-party records because the entity in control of them is a stranger to the litigation. Third parties are under no obligation to assist either the Crown or the defence or to disclose any information to either. (Jackson, at para. 83.)
21As Stinchcombe disclosure is restricted to the fruits of the investigation, the police may well be a third party despite the fact that they are obliged to hand over some records under their control on a first-party basis. Likewise, despite the fact that “the Crown” is a synecdoche for “all state entities,” all government agencies other than the Crown are third parties for Stinchcombe purposes. (Jackson, at para. 85.)
22Where the records sought either fall outside the scope of the fruits of the investigation or are not in possession of the prosecuting Crown, they are prima facie third-party records. Their production may only be sought pursuant to the regime established in the case of R. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, as clarified by subsequent authorities. (Jackson, at paras. 91-98.)
23The procedure to be followed when seeking the production of records in the hands of third parties was recently summarized by Watt J.A. in Ontario (Provincial Police) v. Mosher, 2015 ONCA 722.
24The party seeking production must issue a subpoena duces tecum and serve it on the party in possession of the records sought. The party must then issue an application in writing and serve it on the prosecuting Crown, the person who is the subject of the records, the record holder, and anyone else who may have a privacy interest in the record. An application of this kind must be brought to the trial judge, and any claims of privilege must be resolved before the trial judge determines whether the threshold for production has been passed. (Ontario (Provincial Police) v. Mosher, at paras. 111-113.)
25A subpoena duces tecum compels the record-keeper to attend court with the records whose production is sought. It is not a production order in itself, but rather an instrument whose issuance confers the jurisdiction to compel attendance. (Ontario (Provincial Police) v. Mosher, at paras. 83-93.)
26The application record drafted by the party seeking production must identify the records in issue, assert a basis upon which the records may be relevant to an issue at trial, and provide an evidentiary foundation for the assertion of relevance. This may take the form of an affidavit from the accused or another person with knowledge of the facts relied upon, the transcript of evidence taken at a preliminary inquiry, or the submissions of counsel. (R. v. Thompson, 2009 ONCA 243, 95 O.R. (3d) 469, at paras. 15-21.)
27If the trial judge, upon hearing the application for production, is satisfied that the records are likely relevant to “the proceeding against the accused,” he or she may order the production of the records for inspection by the Court. This stage is best described as “threshold” production. Having reviewed the record, it then falls to the Court to determine if the records are in fact relevant and if they should be produced to the accused in whole, in part, or at all. This second stage is best described as “ultimate” production.
28To prevail on an application for the production of records held by third parties, an Applicant must demonstrate that the records sought are “likely relevant” to an issue at trial or to the competence of a witness to testify.
29The threshold of likely relevance is not onerous. As written in Jackson,
128The “likely relevant” threshold is not onerous because an applicant cannot be required, as a condition of accessing information that may assist in making full answer and defence, to demonstrate the specific use to which they might put information that they have not seen: R. v. Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469, at p. 499; O’Connor, at para. 25; McNeil, at para. 29. The trial judge does not balance competing interests to determine whether the “likely relevant” threshold has been met under O’Connor: McNeil, at para. 32.
30In Jackson, at para. 128 Watt J.A said,
“Likely relevant” means that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.”
31An “issue at trial” includes not only material issues concerning the unfolding of events which form the subject-matter of the proceedings, but also evidence relating to the credibility of witnesses and the reliability of other evidence. (O’Connor, at para. 22; McNeil, at para. 33.)
32In considering the ambit of the information that can assist in the trial, regard must be given to the particular issues in the case and to the governing rules of evidence and procedure. This does not mean that only material that would be admissible at trial should be produced. Material that would not, on its own, be admissible may nonetheless be of use to the defence, for example, in cross-examining a witness on matters of credibility or in pursuing other avenues of investigation. An O’Connor application must, however, lay a foundation for the relevance of the material sought, having regard to the issues in the case. In large part, this is the reason why such applications should be brought before the judge seized with the trial. Doing so allows production issues to be effectively disposed of by the judge and counsel who are sufficiently appraised of the issues in the case. (McNeil, at para. 44.)
33In Jackson, Watt J.A. identified a non-exhaustive list of trial issues to which third-party records might be relevant. At para. 84, he wrote:
The third party scheme involves two steps or stages. It is initiated by service of a subpoena duces tecum on the third party record-holder, as well as a notice of application and supporting material on the record holder and prosecuting authority: O’Connor, at para. 134. The purpose of the subpoena duces tecum is to have the material requested brought to the trial judge who will determine whether and to what extent the material will be produced. The application sets out the grounds upon which production is sought. The supporting material seeks to establish the relevance of the material to an issue at trial including:
i. The unfolding of the narrative;
ii. The credibility of a witness;
iii. The reliability of other evidence; or
iv. The competence of a witness to testify: O’Connor, at para. 134; McNeil, at paras. 27, 33.
34I turn now to my disposition of this application.
The Training courses issue
35With respect to the two disputed statements noted previously and which will be the subject of an upcoming voir dire, Mr. Beaver was interviewed on both occasions by Detective Harrison. Detective Tinnes was not present in the room during the interviews, but was assisting Detective Harrison.
36The Crown alleges the two statements are confessions by Mr. Beaver to the charges at issue. Mr. Beaver alleges he was pressured into falsely confessing to the crimes.
37In seeking to obtain the training records of the officers, Mr. Beaver asserts that the actual training received by the officers goes to the good faith, or lack thereof, exercised in the course of the interrogation. In my view, an overarching theme of Mr. Beaver’s application is the adequacy of the police investigation of the events of December 29th, 2012. Mr. Beaver argues the training the officers received in crime scene investigation and statement taking is relevant to the quality of their investigation and the issue of the voluntariness and Charter compliance of the statements taken from Mr. Beaver. In argument, Mr. Beaver’s counsel analogized this production to having the curriculum vitae of an expert witness.
38The TBPS counters by submitting what is relevant to the conduct of the trial and the voir dire is what actually occurred during the interrogation, and not how the officers were trained to do it. TBPS relies on the decision of the Supreme Court of Canada in R v. Clayton, 2007 SCC 32, 2007 2 SCC 725, [2007] 2 S.C.R. 725, where at para. 51 it was stated:
What is under constitutional scrutiny is the police conduct, not police training. The officers' good faith in carrying out their duties is the issue in this case. To go further and examine the training behind such conduct would risk transforming the inquiry into a protracted pedagogical review of marginal relevance to whether the police conduct itself represented a breach of sufficient severity to warrant excluding the evidence.
39TBPS submits what is important is what the officers did, not what they were trained to do.
40I agree with the submissions of the TBPS with respect to these training records. During trial and/or during the voir dire, Mr. Beaver will be entitled to inquire of the officers what training they received by way of background or as part of a narrative he seeks to establish when seeking to have the statements excluded. Having or not having this information ahead of time, does not suggest to me an inability of Mr. Beaver to make full answer and defence on this narrow issue. However, the issue of training strikes me as collateral and irrelevant to the issue of whether or not Mr. Beaver’s statement was given voluntarily or not. I am persuaded that records or information about what happened during the interrogation is what will be determinative of the issue of the voluntariness and Charter compliance of the statement obtained, and not records or information about what the police may or may not have been trained to do.
41I do not accept the defence argument that the issue of training will be applicable to any s. 24(2) analysis that will be undertaken in the event the statements are found to have been obtained in a manner that breached Mr. Beaver’s Charter rights. That assessment will not focus on punishing or reprimanding the police for what happened, thus making what they should have done somehow relevant, but rather the analysis will be on the broader societal interest of determining if admitting this evidence would bring the administration of justice into disrepute. It seems to me this wider focus makes any issue of training irrelevant to this analysis. The prospective nature of a s. 24(2) inquiry as contrasted with the historic nature of training evidence is sufficient to separate the two conceptually, as far as an assessment of relevance goes. How the officers were trained may or may not have affected how they did their jobs, but what matters is what they did, period. I cannot agree that the remedy under s. 24(2) will be affected by any training regime that may have been experienced by the officers, and it seems far too great an expenditure of resources to require production of records or information regarding an issue that will be irrelevant to the matters before the Court.
42The defence has not raised any issues about the competence of these officers to testify. To require the TBPS to provide these records or information represents, in my view, a fishing expedition by the defence and does not satisfy the “likely relevant” test. I find that these records and information are not likely relevant as asserted by Mr. Beaver. This portion of the relief requested by the application is denied.
The gang information/records issue
43Mr. Beaver’s request on this issue, at first blush, seems fairly straight forward. He does not ask for documents per se. Rather, he asks that the TBPS provide the defence with a list of the known associates (including contact information) and gang affiliations of five persons. The purpose of this information is to assist the defence in conducting its own investigation into the affiliations of the witnesses and their activities on December 29th, 2012 as well as to assist in the preparation for cross examination of these witnesses.
44TBPS resists this request on the basis that the information or the records which could be used to generate the information is not likely relevant to any trial issue, that production of even a portion of the information would of necessity breach informer privilege, and could also breach privacy interests of fourth parties while at the same time having no bearing on the right of Mr. Beaver to make full answer and defence. Mr. Beaver has not asserted an “innocence at stake” basis for production of either the information or the records.
45The request for information or records are of two distinct subsets: the known associate information and the gang affiliation information.
46In the affidavit information provided on this application by TBPS, it was disclosed the TBPS has two databases where the information or records requested could be potentially obtained. The first is a “regular” RMS NICHE database which contains occurrence information and subject profiles. The other database is the RMS NICHE Intelligence data base.
47The RMS NICHE Intelligence database is comprised of reports detailing information provided by coded confidential informants, and the disclosure of any information from the database risks revealing the identity of those informers. TBPS submits privileged records cannot be produced on a third-party records application, regardless of their relevance, unless the accused satisfies the “innocence at stake” test.
48I accept the TBPS argument that it has a valid privilege in respect of the RMS NICHE Intelligence database. I am simply not prepared to order any records or information be produced from that database on that basis alone.
49With respect to the known associate information, it strikes me that this information could possibly be obtained from the regular RMS NICHE database. However, the TBPS relies on the decision R v. Darwish, 2010 ONCA 124, 100 O.R. (3d) 579, a decision of the Ontario Court of Appeal, where Justice Doherty stated at paras. 29 through 32
29An accused does not have a free-standing constitutional right to an adequate investigation of the charges against him or her: R. v. Barnes, [2009] O.J. No. 2123, 2009 ONCA 432, at para. 1. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in and of themselves constitute a denial of the right to make full answer and defence.
30An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target. As Hill J. put it in R. v. West, [2001] O.J. No. 3406, [2001] O.T.C. 711 (S.C.J.), at para. 75, the defence cannot, through a disguised-disclosure demand, "conscript the police to undertake investigatory work for the accused"; see, also, R. v. Schmidt, 2001 BCCA 3, [2001] B.C.J. No. 3, 151 C.C.C. (3d) 74 (C.A.), at para. 19. That is not to say that the police and the Crown should not give serious consideration to investigative requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorial authorities that carry the ultimate responsibility for determining the course of the investigation. Criminal investigations involve the use of public resources and the exercise of intrusive powers in the public interest. Responsibility for the proper use of those resources and powers rests with those in the service of the prosecution and not with the defence.
31Nor does the disclosure right, as broad as that right is, extend so far as to require the police to investigate potential defences. The Crown's disclosure obligation was recently described in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3. The court, at para. 22, reiterated the Crown's obligation, subject to very limited exceptions, to make timely disclosure to an accused of all relevant material "in the possession or control of the Crown". The Crown's disclosure obligation will also require the Crown, in response to defence requests, to take reasonable steps to inquire about and obtain relevant information in the possession of some third parties. Charron J. described this aspect of the disclosure obligation, at para. 49:
The Crown is not an ordinary litigant. As a minister of justice, the Crown's undivided loyalty is to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfil its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so.
32I see a vast difference between requiring the Crown to take reasonable steps to assist an accused in obtaining disclosure of [page588] relevant material in the possession of a third party and requiring the Crown to conduct investigations that may assist the defence. The former recognizes an accused's right to relevant information and the practical advantage that the Crown may have over the defence when it comes to obtaining that information from some third parties. The latter would require the prosecution to effectively surrender control of the investigation to the defence or ultimately face a stay of the criminal charges.
50The defence has been fair and forthright in its requests for this known associate information. I am of the view however, that what the defence is seeking to do with this request for production is to enlist the assistance of the police in preparing its defence beyond that which is ordinarily required of the police in its Stinchcombe disclosure obligations. I am not persuaded that Mr. Beaver is prevented from investigating the known associates of any of the five witnesses unless he obtains the police information that they may, or may not have, on these people.
51This information has the same quality, in my view, as any gang affiliations the police may associate with any of the five witnesses. It is admitted by Mr. Beaver that the police opinion on the gang affiliations of any of these people would have zero relevance (defence counsel’s words) to any issue at trial. I agree. Further, I cannot see how having this information can realistically be said to be of any assistance, one way or the other, to the investigations of the defence. It cannot seriously be asserted that if a possible gang member was confronted by a private investigator acting on Mr. Beaver’s behalf with information that the police were of the view that they were a gang member, that that information, in and of itself, would be more likely to ensure a truthful answer from the potential gang member.
52In the context of this case, by definition, a “gang member” is part of a criminal organization. I think it can be taken as judicially noticed that criminals care very little about what the police think about them except if it is information the criminals can use to figure out ways to avoid detection or police interference with their activities. I cannot see how it can be reasonably asserted that having this information could assist the defence, even before we get to the question of whether or not the police should or can be compelled to provide it on the evidence and submissions provided in this matter. I am of the view that the records or information requested pursuant to this issue do not meet the “likely relevant” test for either a list of known associates or the gang affiliations of the five witnesses.
53This second aspect of the application is also dismissed.
54Accordingly, for reasons stated, save and except for the relief set out in the endorsement of January 4th, 2016, the balance of this O’Connor application is dismissed.
The Hon. Mr. Justice F. Bruce Fitzpatrick
Released: January 29, 2016
CITATION: R. v. Beaver, 2016 ONSC 664
COURT FILE NO.: CR-13-0108-00
DATE: 2016-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
THUNDER BAY POLICE SERVICE
Respondent
- and -
Justin Lucas Beaver
Applicant
REASONS FOR JUDGMENT ON APPLICATION
Fitzpatrick J.
Released: January 29, 2016
/cs
