Court File and Parties

COURT FILE NO.: CR15-5114 DATE: 2017-02-21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – RICHARD BENNETT Applicant

Counsel:

J. Levy, on behalf of the Crown A. Craig & C. Zeeh for the Applicant

HEARD: February 16, 2017

A.J. Goodman J.:

PRETRIAL WRITTEN RULING #1- PRODUCTION of THIRD PARTY RECORDS

[1] The applicant, Richard Bennett (“Bennett”), is alleged to have committed first-degree murder on July 28 – 29, 2004 with respect to the deceased, Jean Paul Page.

[2] During the course of pre-trial motions, the applicant intends to advance an alternate suspects application. In support of that application, the applicant requests production of certain occurrences and records held by a third party, the Toronto Police Service (“TPS”).

[3] Responding to a subpoena, a representative of the TPS attended court and tendered the requested documents pending argument of the application. For the purpose of the within application, there is no dispute with respect to the disclosure of records in the possession of the Hamilton Police Service (“HPS”) pertaining to certain third party individuals.

[4] Mr. Levy, on behalf of the Crown attorney, advises that the TPS does not seek to have independent counsel attend for this third party records application and he has been requested and will speak on their behalf.

Positions of the Parties:

[5] The applicant submits that the police occurrence reports and criminal records are relevant to establishing the basis for the alternate suspects application in relation to five specific individuals who were the subject of the HPS investigation into this homicide. All of these five persons either had a clear connection to the deceased, or the applicant, the situs of the homicide, a motive or opportunity to commit the alleged crime or was otherwise implicated. The applicant submits that the records are relevant for the upcoming application and generally, for full answer and defence.

[6] The Crown Attorney opposes the release of the records claiming that the applicant has not met the threshold test of likely relevance and has not substantiated his application in accordance with the well-established legal principles. The Crown concedes that while the five named individuals were purported to be suspects or persons of interests for brief period of time during the course of this lengthy investigation, there is no evidence presented of any relevance to the alternate suspects application. The Crown submits that there must be something more to make the records relevant, which is not found here. The Crown submits that this is nothing more than a fishing expedition and that this application ought to be denied.

Legal Principles:

[7] The leading decision for the production of third party records is found in the case of R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411. Albeit in a different context, the Court of Appeal in R. v. Batte (2000), 2000 5751 (ON CA), 145 C.C.C. (3d) 449 opined on the appropriate tests to be considered by a trial judge in determining whether documents should be ordered to be produced. See also R. v. McNeil, 2009 SCC 3 at para. 44.

[8] It is clear that there is no positive duty on third parties whose records are part of a criminal investigation to disclose them to an accused. Where there exists a reasonable expectation of privacy in the sought-after records, there exists competing constitutional rights – an accused’s s.7 Charter right to a fair trial including the right to make full answer and defence, and, a third party’s right to privacy protected by the same constitutional regime. Although the court’s obligation is to balance those rights within the factual context of a specific prosecution, fair trial interests may require intrusion upon privacy. Again, in a different context, dealing with therapeutic records, in R. v. Mills (1999), 1999 637 (SCC), 139 C.C.C. (3d) 321 (S.C.C.), at para. 94, the Supreme Court held:

In summary, the following broad considerations apply to the definition of the rights at stake in this appeal. The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in the private records of complainants and witnesses. Rather, the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses. It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.

[9] The test to order the production of records requires the applicant to satisfy me on a balance of probabilities that the records are likely relevant to an issue at trial, in this case, - the alternate suspects application - and their production is necessary in the circumstances of the case.

[10] Indeed, I must balance the right of the applicant to make full answer and defence against the right to privacy and equality of those named in the records. If at the end of this balancing process I am not certain as to whether or not to order production or there is a danger that the accused's right to make full answer and defence will be violated, the interests of justice require that I err on the side of production to the court: Mills at paras. 132 and 137.

Discussion:

[11] The records or documents to be reviewed are the TPS police records with respect to five individuals who are specifically referenced.

[12] There is a reasonable expectation of privacy in police occurrence reports often due to the sensitive nature of information contained therein: R. v Quesnelle, 2014 SCC 46. I acknowledge that the records sought here are not counselling or therapeutic records as defined by s. 278.1 of the Criminal Code.

[13] As noted by O’Connor J. in R. v. L.F. (2006), 2006 1024 (ON SC), 37 C.R. (6th) 152 (Ont. S.C.), the accused often finds himself or herself in a dilemma, simply because he or she does not know what the records contain, and is thus hampered in his or her ability to demonstrate likely relevance: O’Connor, at para. 25. However, it is clear from the cases that the applicant must demonstrate likely relevance through evidence and not through speculation or assumptions. See also R. v. Durette, 1994 123 (SCC), [1994] 1 S.C.R. 469; R. v. Grandinetti, 2005 SCC 5.

[14] There was no dispute amongst counsel that the test for likely relevant is whether there is a reasonable possibility that the information is logically probative to an issue at trial. This requires case-specific evidence or information to show that the record in issue is likely relevant to an issue at trial, or in this case, the alternate suspects application.

[15] The Crown attorney does not concede that stage 1 – as it is often referred to – had been established by the applicant. In other words, the Crown submits that the records sought are merely a fishing expedition by counsel and that there is no nexus between the various named individuals and the accused or the deceased or circumstances and events surrounding the crime alleged in this case. Therefore, I am required to determine whether the impugned records are likely relevant to an issue at trial.

[16] The onus is on the accused to establish likely relevance, acknowledging that this burden is not an onerous one.

[17] Simply put, the events giving rise to the homicide include suggestions of a home invasion or illegal entry into an apartment, use of weapon(s), assaultive behaviour, forcible confinement and a connection to illicit drugs. For this application, I am advised that the five named individuals had, at one time or another, (and for diverse durations), had been considered suspects or “persons of interest” by the HPS in their investigation of this homicide.

[18] Based on counsel’s submissions, the materials filed and the evidence adduced thus far in a companion application, including but not limited to the references to five specific persons who were under active investigation by the HPS, I am satisfied that the applicant has met the threshold of the “likely relevance test”. For this exercise and in brief oral reasons, I advised counsel that the review would be narrowed to a limited timeframe both pre-and-post homicide, while allowing for a liberal interpretation of events. Hence, the records to be reviewed would commence in 1999 (five years pre-homicide) and conclude on December 16, 2013, (the applicant’s arrest date).

[19] As mentioned, under O’Connor, a two-stage inquiry is required. The first stage, having been met, I now turn to whether the production of the record(s) is necessary in the interests of justice and for full answer and defence, bearing in mind any privacy interests. I must weigh and balance the positive and negative consequences of production. I therefore conducted an in camera inspection of the records.

[20] In this case, counsel limited his request in relation to the alternate suspects application that may otherwise probative of that issue. Counsel suggests that there is good reason to find that there may be something in those records that would assist his client to advance the application. However, it is still for the applicant to demonstrate and for this Court to conclude that production of the records is necessary in the interests of justice.

[21] I pause to add that in my view, a further in camera hearing for stage 2 was not necessary. At this stage of the process, I do not consider it to be part of my function to assess the weight to be given to evidence that may be relevant to an issue at trial, or for the pre-trial applications.

[22] In the package of materials filed, there are eight distinct appendices provided by the TPS. [^1] Appendix “A” and “C” refers to Jason Bynoe. Appendix “E” and “G” refers to Nathaniel Gibbs. Appendix “I” refers to John Gardner. Appendix “K” refers to Mark Johnson. Appendix “M” and “N” provides occurrence reports and reports concerning Shaka Reid.

[23] Each of the five-named individuals’ criminal record found in the documents listed in the appendices might conceivably be relevant and are to be disclosed.

[24] As mentioned, the scope of production for the TPS records stems from the alternate suspects application related to the July 2004 homicide and other persons who have or may have a possible nexus to the deceased, the applicant, an opportunity to commit the crime or even some related or relevant drug or weapons misconduct. A similar or like-natured activity in Toronto that materially provides support for the alternate suspects application was considered. My overall approach was to apply a liberal interpretation of any occurrence or report that had a sufficient connection between the alternate suspect and the crime alleged here, and might be probative and relevant to the application; bearing in mind the test for relevance found in the jurisprudence.

[25] Upon examining the sealed records filed, there are no TPS occurrence reports related to Mark Johnson.

[26] Having considered the voluminous records filed for my consideration under the stage 2 analysis, I find that there are no relevant records to be produced related to either John Gardner or Shaka Reid.

[27] I determine that there are two police occurrence reports that may be relevant and material. One such report relates to Nathaniel Gibbs and Jason Bynoe, dated October 3, 2007 and the other report relates solely to Nathaniel Gibbs, dated January 11, 2003. I am persuaded that the limited information contained therein meets the criteria for production for the purposes of the alternate suspects application.

[28] As the production of the records to the applicant are necessary in the interests of justice, I will order the relevant and redacted excerpts from these reports produced.

[29] The production of the police reports or excerpts from these notes or reports shall be provided on the following conditions:

(a) that the Crown attorney, the applicant, and counsel for the applicant not disclose the contents of the excerpts or reports to any other person, except with the approval of the Court; (b) that a copy of the reports or excerpts, rather than the original, be produced; (c) that no copies of the reports or excerpts be made except with the approval of the Court; (d) that at the conclusion of the case, and after the expiry of any time limit for appeal, or upon the disposition of any final appeal, the reports or excerpts shall be returned to the custodian of the records. The remainder of the TPS records filed in this application shall be sealed.

A.J. Goodman J. Released: February 21, 2017

[^1]: Some of the other appendices are duplicate unvetted records and will not be referenced. I am grateful to the Crown attorney for concisely summarizing and redacting the various reports on behalf of the record holder.