Court File and Parties

Court File No.: 11-CV-418082 Date: 2017/02/21

Superior Court of Justice – Ontario

Title of proceedings: Robert James Baltovich v. Attorney General for Ontario, Brian Raybould, Steven Reesor, The Toronto Police Services Board, William E. Gatward and Michael G. Engel

Heard by: Master Graham Event date: November 29, 2016

Counsel: S. Blake and M. Williams for the defendant Attorney General (moving party) S. Dewart and A. Lei for the defendant Engel

Reasons for Decision

(Motion by the Attorney General to quash summonses to witness)

[1] On March 31, 1992, the plaintiff Robert Baltovich was convicted of the second degree murder of his girlfriend Elizabeth Bain. On December 2, 2004, after he spent more than eight years in prison and was subsequently released on bail, his appeal was allowed, his conviction was quashed and a new trial was ordered. In 2008, he was acquitted at his second trial when the Crown called no evidence.

[2] The plaintiff claims damages in this action on the basis that his arrest, charge, prosecution and wrongful conviction were the result of reckless, bad faith, negligent and intentional acts and omissions of the Crown attorneys as agents of the Attorney General, of the police officers who investigated and prosecuted the murder charge (the defendants Raybould and Reesor) and of his former trial defence counsel (the defendants Gatward and Engel).

[3] The Attorney General is named a defendant on the basis of its liability for the conduct of the Crown attorneys under section 8 of the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17. The plaintiff alleges that the Crown attorneys failed to properly perform their “non-discretionary, routine, administrative function to make full, frank and complete disclosure” of relevant evidence to his counsel.

[4] The plaintiff has served a notice of discontinuance on the Attorney General. The defendant Engel seeks to continue his crossclaim against the Attorney General pursuant to rule 23.03(1.1) of the Rules of Civil Procedure and submits that if there is any liability on him for his conduct of the plaintiff’s defence of his criminal charges, he should recover contribution and indemnity from the Attorney General on the basis that the Crown attorneys failed to comply with their disclosure obligations.

[5] The Attorney General has brought a summary judgment motion to dismiss Engel’s crossclaim. As part of his response to that motion, Engel has served summonses to witness under rule 34.04(4) of the Rules of Civil Procedure to examine the trial Crown attorneys John McMahon and Paul Amenta (“the trial Crowns”) under rule 39.03 of the Rules of Civil Procedure, to obtain their evidence for the motion. The Attorney General now brings this motion to quash these summonses.

[6] The relevant subsections of rule 39.03 of the Rules of Civil Procedure are as follows:

39.03 (1) Subject to subrule 39.02(2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.

(2) A witness examined under subrule (1) may be cross-examined by the examining party and any other party and may then be re-examined by the examining party on matters raised by other parties, and the re-examination may take the form of cross-examination. . . .

[7] Counsel for the parties to the motion essentially agree on the law applicable to the striking of a summons under rule 39.03 of the Rules of Civil Procedure. In Marton v. Woody Gundy Inc., [2013] O.J. No. 1115, Master Dash ruled on a motion to compel the attendance of a witness under rule 39.03. Although the motion before me is to strike the summonses used to compel such an attendance, the issue on a motion to strike a summons or on a motion to compel attendance is the same so the same principles apply. Master Dash summarized the law as follows (at paras. 9, 10 and 16):

9 The test to be satisfied in order to conduct a rule 39.03 examination has been stated by the court of appeal as follows:

The onus is on the party seeking to conduct the examination to show on a reasonable evidentiary basis that the examination would be conducted on issues relevant to the pending application and that the proposed witness was in a position to offer relevant evidence. (Ontario Federation of Anglers & Hunters v. Ontario, [2002] O.J. No. 1445 (C.A.) at para. 30, leave to appeal ref’d, [2002] S.C.C.A. No. 252)

10 The onus on the party seeking the examination is not a heavy one. He need not show that the proposed examination will provide helpful evidence. If he can show that the examination will be conducted on issues relevant to the pending motion and the proposed witness is in a position to offer relevant evidence then he has a prima facie right to conduct an examination under rule 39.03. The onus then shifts to the objecting party to demonstrate that to permit the rule 39.03 examination would be an abuse of process. (Canada Metal Co. v. Heap (1975), 7 O.R.(2d) 185 (C.A.) at para. 18; Clarke v. Madill (2001), 57 O.R.(3d) 730 (SCJ-Master) at para. 34-35; Bearden v. Lee, [2005] O.J. No. 1583 (SCJ) at para.18; Siegel v. Mulvihill Capital, [2009] O.J. No. 265 (SCJ-Master) at paras. 9-10) . . .

16 As noted, even if the proposed witness could provide evidence relevant to the motion to dismiss for delay, the right to conduct the rule 39.03 examinations will be refused if it amounts to an abuse of process. There will be such abuse if the process “while ostensibly for the purpose of eliciting relevant evidence, is in fact being used for an ulterior or improper purpose, or if the process itself is being used in such a way as to be in itself an abuse” (Canada Metal v. Heap, supra at para. 18). A rule 39.03 examination also cannot be used “to conduct a general discovery” or “so as to authorize what amounts to a fishing expedition” (Clarke v. Madill, supra at para. 46).

[8] Based on these authorities, the issues on this motion are as follows:

1. Has the defendant Engel shown on a reasonable evidentiary basis that the proposed witnesses McMahon and Amenta would give evidence relevant to the issues to be argued on the Attorney General’s summary judgment motion?
2. If the court concludes that the evidence of the proposed witnesses is relevant to those issues, has the Attorney General demonstrated that conducting the proposed rule 39.03 examinations would constitute an abuse of process?

Is there sufficient evidence that the proposed witnesses can give evidence relevant to the summary judgment motion?

[9] The issue in the action in relation to the trial Crowns is whether they caused or contributed to the plaintiff’s damages by failing to comply with their disclosure obligations, including the disclosure of potentially exculpatory evidence. The issue on the summary judgment motion to dismiss Engel’s crossclaim against them is whether there is a genuine issue requiring a trial in relation to the trial Crowns’ alleged non-disclosure.

[10] The defendant Engel submits that it is completely plausible that the trial Crowns would have relevant evidence to give regarding their compliance or non-compliance with their disclosure obligations. He identifies five topics on which he submits that the trial Crowns provided inadequate disclosure and on which they should be subject to examination before the Attorney General’s summary judgment motion is argued:

(1) Forensic evidence about when Ms. Bain’s remains could have been removed from the area in which her vehicle had been parked. (2) Ms. Bain’s diary entry dated September 16, 1988. (3) The possibility that Mr. Baltovich failed to return pages from Ms. Bain’s diary after borrowing it shortly after her disappearance. (4) Evidence concerning Mr. Baltovich’s attendance at Ms. Bain’s classroom on the night she disappeared and undisclosed witness statements of Cathy Bain. (5) Evidence regarding the witness David Dibben who claimed to have seen Mr. Baltovich driving Ms. Bain’s vehicle on Friday, June 22, 1990, three days following her disappearance.

[11] I will review the details of the evidence with respect to each of these topics to determine whether the proposed examinations are warranted.

(1) Forensic evidence about when Ms. Bain’s remains could have been removed from the area in which her vehicle had been parked

[12] The evidence in question is based on a note of Detective Raybould for November 22, 1990 regarding a consultation that day with Dr. Hillsdon-Smith and Ray Higaki of the Centre for Forensic Sciences. This note, titled “Discussions with CFS Personnel in Regards to Blood in Toyota”, reflects Detective Raybould’s consultation with Dr. Hillsdon-Smith and Ray Higaki about the blood, lack of odour and absence of decomposition evidence in the victim’s car. This note was not contained in the Crown disclosure.

[13] The Crown’s theory, as proposed to the jury in McMahon’s jury address, was that the plaintiff killed Ms. Bain on Tuesday, June 19, 1990 and on June 22, 1990 dragged her body into her car and transported it to Lake Scugog where he disposed of it. Essentially, the information received by Detective Raybould from the CFS was that if Ms. Bain’s body had been outside for two or three days and then moved in her car, the prior degree of decomposition and blood loss would preclude the blood loss observed in the car. Further, if the body were placed in the car 2½ days after her death without being wrapped, decomposed fluids would create an odour; there was no odour detected when the vehicle was found.

[14] Detective Raybould has testified that although he does not recall doing so, it was logical that he would discuss with the trial Crowns the evidence about the blood in the car. McMahon previously testified that during the preliminary inquiry and trial, he and Amenta worked closely with the police including Detective Raybould. Amenta prepared a note dated March 11, 1991 to the effect that at a meeting on that date there was a discussion about the blood smears in the car, the need for the forensic theory to coincide, and the timing of the removal of the body. Engel’s counsel submits that all of this evidence creates an inference that the information from the CFS personnel was discussed with the trial Crowns. I accept that the evidence on this motion demonstrates a sufficient likelihood that the trial Crowns knew about Detective Raybould’s note of November 22, 1990 that questioning them about the contents of that note would give rise to relevant evidence regarding the disclosure provided to Baltovich’s trial counsel.

[15] Another note prepared by Amenta, dated February 15, 1992 after the trial commenced, refers to Mr. Higaki at the CFS and contains the words “hiding the ball”. Engel’s counsel submits that this note suggests a deliberate decision on the part of one or both trial Crowns to conceal the information provided by the CFS personnel on November 22, 1990. The Attorney General submits that the “hiding the ball” note is simply a record of the instructions received by Amenta from McMahon about what to do and what to avoid when examining a witness in chief. However, it is impossible to determine what Amenta actually meant when making this note without the trial Crowns being questioned about it. The trial Crowns’ evidence about that note would therefore also be relevant to the issues on the summary judgment motion.

(2) Ms. Bain’s diary entry dated September 16, 1998.

[16] Baltovich told police that on the evening of Saturday, June 16, 1990, Ms. Bain gave him a sealed envelope containing an entry from her diary made on September 16, 1988. This entry, made while Ms. Bain was dating someone else, was to the effect that she was attracted to Baltovich. Baltovich told police that he returned this entry to Ms. Bain’s father after she disappeared. However, at trial, the Crown suggested that the sealed envelope contained a “Dear John” letter, which was Baltovich’s motive for committing the murder, and that Baltovich destroyed the document.

[17] The original September 16, 1988 entry was actually in the Crown’s file and was the first page in two identical packages of diary entries prepared for the trial Crowns. This entry, which was not disclosed to Baltovich’s trial counsel, corresponds to Baltovich’s description of it. The entry was ultimately disclosed to Baltovich’s appeal counsel.

[18] McMahon has testified that he probably read the September 16, 1988 entry and Amenta’s copy of it is highlighted. Nonetheless, the Crown at trial submitted to the jury that the document in the sealed envelope was a “Dear John” letter that Baltovich destroyed. In the face of the initial failure of the trial Crowns to produce the entry and the Crown’s contention that Baltovich destroyed the document in the sealed envelope, I accept that the trial Crowns have relevant evidence to give with respect to the failure to disclose the September 16, 1988 diary entry.

(3) The possibility that Mr. Baltovich failed to return pages from Ms. Bain’s diary after borrowing it shortly after her disappearance.

[19] Cathy Bain, Ms. Bain’s sister, testified that the plaintiff borrowed pages from Ms. Bain’s diary, which were kept in a binder, but only returned some of them. Specifically, she testified that the diary binder originally contained so many pages that its covers were parallel but after Baltovich returned some of the pages, the binder’s covers were “very slanted”. As part of its case on the issue of motive, the Crown alleged that Baltovich stole pages from Ms. Bain’s diary as a way of concealing that there were problems in their relationship. However, Baltovich’s appeal counsel discovered a box containing 458 loose pages from the diary, which, when placed in the binder, made the covers parallel as described by Cathy Bain.

[20] McMahon’s previous evidence was that he was aware of “old” diary entries that were not entered into evidence at trial. I accept that for the purpose of the Attorney General’s summary judgment motion, Engel’s counsel should be able to question the trial Crowns about their apparent failure to disclose all of the diary pages in their possession.

(4) Evidence concerning Mr. Baltovich’s attendance at Ms. Bain’s classroom on the night she disappeared (“the classroom evidence”) and undisclosed witness statements of Cathy Bain.

[21] In his jury address, McMahon submitted that Baltovich had fabricated a story about attending at Ms. Bain’s classroom on June 19, 1988, the day on which she disappeared. The “willsay” statements for the investigating officers Raybould and Reesor indicated that they attended at the classroom to determine if any of the students could corroborate Baltovich’s version of events that he had hidden on a balcony outside the classroom and determined that no one could do so. A P.C. McGrath subsequently interviewed an individual named Nazar Tonbazian who did corroborate Baltovich’s statement.

[22] The willsay statement from P.C. McGrath did not refer to his interview with Tonbazian. However, a Metropolitan Toronto Police Supplementary Report bearing McGrath’s name includes notes of an interview with Tonbazian indicating that he knew Baltovich because they used to weightlift together and that he “saw him there upstairs” while Tonbazian was waiting for his girlfriend to come out of the same classroom. This evidence was also recorded in the officers’ memo books but not included in the willsay statements.

[23] The disclosure issue with respect to the “classroom evidence” is whether the trial Crowns were aware that the willsay statements produced in the Crown disclosure provided to defence counsel failed to include the substance of the interview with Tonbazian that corroborated Baltovich’s statement that he waited for Ms. Bain outside her classroom on the day on which she disappeared.

[24] The disclosure practice at the time that the Crown disclosure was provided to Baltovich’s trial counsel was to provide willsay statements from the investigating officers. Following the Supreme Court of Canada decision in R. v. Stinchcombe, released on November 7, 1991 the practice changed such that defence counsel were provided with copies of police officers’ notes.

[25] McMahon’s previous evidence is that he worked from the police willsay statements. Engel’s evidence is that he cannot prove that the trial Crowns knew what was recorded in the officers’ notes but not included in the willsay statements. However, given that the trial Crowns had access to the officers’ notes, they could plausibly have reviewed them in addition to the willsay statements and their evidence about whether or not they did so is relevant to the issue of the trial Crowns’ compliance with their disclosure obligations.

[26] Another disclosure issue arises from evidence given by Cathy Bain regarding an incident in which Elizabeth Bain, in the days before she disappeared, came up from the basement of her home, where she had been with Baltovich. Her clothing was disheveled, she was crying and she made a comment that “Rob is such an asshole”. The police notes first indicate that on July 3, 1988, Cathy Bain reported the incident as having occurred on June 18, 1988, the day before Elizabeth Bain disappeared but subsequently, on November 6, 1988 stated that “. . . I now feel that this incident occurred on Thursday, June 14, 1988”. The discrepancy is significant because Baltovich had an alibi for June 18, 1988 so the incident could not have occurred then. The willsay statements only indicate that the incident occurred on June 14, 1988 and make no reference to the date given in the earlier statement.

[27] Once again, given that the trial Crowns had access both to the willsay statements and the police notes regarding Cathy Bain’s statements, questions about their knowledge of the content of the police notes would be relevant to the issue of the trial Crowns’ compliance with their disclosure obligations.

(5) Evidence regarding the witness David Dibben who claimed to have seen Mr. Baltovich driving Ms. Bain’s vehicle on Friday, June 22, 1990, three days following her disappearance.

[28] The proposed examination of the trial Crowns with respect to this witness arises from the fact that on March 11, 1991, shortly before the preliminary enquiry, the trial Crowns met with the four lead police investigators at which time they discussed the witness Dibben. At this meeting, Amenta made a note that “We have to be careful re: nature and degree of disclosure re: this witness. We do not want a private investigator casing our guy.”

[29] The Attorney General acknowledges that Dibben’s address was withheld in the Crown disclosure. However, Dibben also had a criminal record which was not disclosed but of which McMahon was aware.

[30] Specifically, at the preliminary enquiry, Dibben testified on cross-examination that he did not have a criminal record but on re-examination by McMahon acknowledged a conviction for impaired driving arising from a charge five years previously. The judge conducting the preliminary enquiry gave defence counsel Gatward an opportunity to ask questions about this conviction and Gatward declined.

[31] At the trial, McMahon asked Dibben on examination in chief about two criminal convictions, one for possession of marijuana in 1977 when he was 18 years old and the conviction for impaired driving in 1988 (three years before he testified at the preliminary enquiry). Engel then cross-examined Dibben about his failure to disclose those two convictions when cross-examined at the preliminary enquiry.

[32] Although the Crown disclosure did not include Dibben’s criminal record, the fact is that the jury was aware of that record at trial and Engel cross-examined Dibben about that record and his failure to acknowledge it when cross-examined at the preliminary enquiry. Accordingly, the initial failure to disclose the record can have had no impact on the outcome of the trial. I accept that it would be improper for the Crown to take steps to limit defence access to a Crown witness. However, there is no evidence that questioning the trial Crowns about the disclosure provided with respect to Dibben would elicit any further evidence about that disclosure that would be relevant to the summary judgment motion.

[33] With respect to the various pieces of evidence that are contained in the police investigation notes and statements and not in the willsay statements provided to defence counsel, the Attorney General submits that the defendant Engel was given the opportunity to review the original police documents but failed to do so. However, the crossclaim asserted by Engel against the Attorney General for contribution and indemnity based on alleged misconduct by the trial Crowns could still be tenable even in the event of a finding of negligence on the part of Engel if the trial court were to find that both Engel’s negligence and the trial Crowns’ misconduct contributed to the plaintiff’s damages.

Would the proposed examinations constitute an abuse of process?

[34] There is no basis on which to conclude that the proposed examinations would constitute an abuse of process. The fact that the trial Crown McMahon was examined extensively by Mr. Baltovich’s counsel Mr. Lockyer does not mean that examination by Mr. Engel’s counsel would be in any way improper. Mr. Lockyer was not representing Mr. Engel at the time of his examination and Engel’s counsel should be given the opportunity to ask his own questions.

[35] The Attorney-General also submits that the proposed examination would constitute a “fishing expedition”. However, Engel does not seek a blanket examination on the conduct of the Crowns as a whole, but simply to examine on the specific topics identified. The focused nature of the proposed questioning removes it from the realm of the general, open-ended enquiry commonly referred to as a fishing expedition.

[36] Finally, there is no evidence that the proposed examinations of the trial Crowns would be conducted for any ulterior purpose beyond obtaining evidence required for Engel to respond to the summary judgment motion to dismiss his crossclaim.

[37] The examinations to be conducted pursuant to the challenged summonses would therefore not constitute an abuse of process.

[38] For the reasons set out above, the Attorney General’s motion to strike the summonses to witness served on McMahon and Amenta is dismissed. Based on these reasons, Engel’s counsel may examine those witnesses on issues (1), (2), (3) and (4) in paragraph 10 above.

Costs

If counsel cannot agree on the disposition of the costs of the motion, they shall communicate with my ATC to arrange to address the issue. They may choose to address the costs of this motion as part of the costs of the summary judgment motion.

MASTER GRAHAM DATE: February 21, 2017