CITATION: R. v. T.G., 2017 ONSC 1314

COURT FILE NO.: CR-15-00001387

DATE: 20170224

CORRIGENDA: 20170418

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.G.

Defendant

Joanne McIntyre, for the Crown

Owen Wigderson, for the Defendant

HEARD: February 24, 2017

PUBLICATION BAN

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person.

PURSUANT TO S. 648 OF THE CRIMINAL CODE, NO INFORMATION RELATING TO THE PRE-TRIAL APPLICATIONS SHALL BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY BEFORE THE JURY RETIRES TO CONSIDER ITS VERDICT.

Revised REASONS FOR RULING

The text of the original Ruling has been corrected with the text of the corrigendum

(released today’s date)

DI LUCA j.:

[1] T.G. is charged with seven sex related offences alleged to have occurred between January 1, 1999 and December 31, 2000. A jury trial is scheduled to commence in June of this year. Further pretrial motions are scheduled for April.

[2] I have before me now two applications. The first is a disclosure application that seeks a determination of whether certain sought after items are relevant and if so, privileged or subject to a third party records regime. The second application is a request for directions relating to the timing of an anticipated cause of action estoppel and abuse of process application.

[3] The cause of action estoppel and abuse of process application is based upon the timing, location and disposition of certain charges laid against T.G. As I understand the background, on March 27, 2011, the complainant, A.G., reported to the Winnipeg Police that she had been sexually assaulted by the accused, T.G. While being interviewed in relation to that complaint, A.G. disclosed that she had been sexually assaulted in Ontario between January 1, 1999 and December 31, 2000, and subsequently further sexually abused between August 1, 2005 and December 5, 2009 and on February 6, 2011 in Manitoba.

[4] On June 24, 2011, the Winnipeg Police Service laid charges in Winnipeg in relation to the incidents that took place in that province. They also contacted the York Regional Police (YRP) to advise of the incidents that occurred here. On July 26, 2011, the YRP commenced their own review of the allegations. While the officer in charge (OIC) of the YRP investigation formed grounds to lay charges in Ontario, she sought legal advice from Crown counsel before doing so.

[5] On April 10, 2012, T.G.’s matters in Winnipeg proceeded to a preliminary inquiry. Following the complainant’s testimony in chief, the Crown proposed that the charges be stayed in exchange for a s. 810 peace bond on T.G.’s behalf. He accepted the resolution and the Winnipeg charges were stayed.

[6] The OIC in York Region learned of the disposition of the Winnipeg charges on November 2, 2013. Following consultation with the complainant and further legal advice from Crown counsel, T.G. was charged with the offences alleged to have occurred in Ontario. Those charges were laid on June 16, 2014, over two years after the charges were stayed in Manitoba.

[7] T.G. seeks a stay of proceedings alleging that the Ontario charges are caught under the doctrine of cause of action estoppel and should be stayed as an abuse of process. He alleges that it would have been open to the police to lay charges with a broad date range, effectively encompassing the occurrences alleged in Ontario and Manitoba. In cases where an offence straddles a border, the Criminal Code provides that it can be prosecuted in either province. On that basis, T.G. alleges that had the police properly or fairly laid a broad count or counts of sexual assault encompassing the entire time period of January 1, 1999 and February 6, 2011, his matter could have proceeded in either Manitoba or Ontario. Building on that, he further alleges that had that happened, and had the matter proceeded in Manitoba, the entire matter would have been stayed following the completion of the complainant’s evidence in chief. By bifurcating the proceedings, T.G. lost the ability to favourably resolve all matters he faced.

[8] T.G. claims that by bifurcating the matter in the fashion done in this case the Crown has effectively split its prosecution, and that the result is similar to the historic practice of “gating” individuals being released from prison.

[9] T.G. alleges that what occurred here amounts to a “clearest of cases” scenario warranting a stay of proceedings.

[10] In the disclosure material provided to date, the Crown provided the notes of the OIC of the York Region investigation as well as email communications. Those notes contain references to in-person, telephone and electronic communications between the OIC and the Crown as well as between the OIC in York Region and the OIC in Winnipeg. There are 12 redactions to the officer’s notes. As well, there are redactions to two emails disclosed.

[11] T.G. has asked the Crown to disclose the redacted portions of the notes and emails. The Crown’s response, further particularized in Appendix “A” to its factum on this application, is that the redacted portions are covered by solicitor and client privilege, litigation privilege, “prosecutorial discretion”, relate to third party records, or are clearly irrelevant.

[12] In relation to the request for disclosure that is the focus of this application, I will break down my analysis into two components, potential relevance and privilege. I will also briefly address the other bases upon which disclosure is resisted.

[13] Starting with potential relevance, it is trite law that the Crown has an obligation to disclose any material in its possession that is potentially relevant to full answer and defence. Full answer and defence is a broad concept that includes potential Charter applications.

[14] The Crown is obligated to disclose material in its possession unless that material is clearly irrelevant. If the material in its possession crosses the low “reasonable possibility of relevance” threshold, the Crown may nonetheless resist disclosure where that material is privileged. Where the Crown claims that disclosure sought is subject to privilege, it has the onus of establishing the applicable privilege.

[15] The Crown’s position on relevance is straightforward. There is no merit in T.G.’s cause of action estoppel and abuse of process argument. If there is no merit to the argument, the requested disclosure losses its relevance. It is no longer required to make full answer and defence.

[16] While the Crown has not made the request, the thrust of its submissions is that the cause of action estoppel and abuse of process application is so lacking in merit that it can be summarily dismissed at the threshold screening stage. On this issue, I note that the Court is permitted to request an articulation or proffer of a proposed Charter argument in order to assess whether an evidentiary hearing is required. In cases where the Court is satisfied that there is no reasonable prospect that the Charter argument could succeed, it may dismiss the application summarily, without any further hearing or argument, see Rule 34.02 of the Criminal Proceedings Rules and R. v. Durette, 1992 2779 (ON CA), [1992] O.J. No. 1044 (Ont. CA) and R. v. Kutnyec, [1992] 7751.

[17] The test that needs to be met at the threshold screening stage of a Charter application has been the subject of discussion and debate. From my review of the jurisprudence, it is clear that the mere filing of a Charter application does not necessarily entitle an accused to disclosure of all material relevant to the application. A Charter application that raises an entirely untenable legal argument cannot be used as a basis to trigger a corresponding disclosure obligation on the Crown, see R. v. Simon, [1992] O.J. No. 100 (Ont. CA). While the description of the language used to describe the threshold varies and is in some measure related to the nature and context of the allegation, an apt description in the abuse of process context is that the Charter application must reveal a “tenable allegation” of a s. 7 violation, see the discussion of this issue by Justice Dawson in R. v. Ahmad, 2008 27470 (ON SC), [2008] O.J. No. 5915 (Ont. SCJ), at para. 20-73.

[18] Does the Charter application as framed in this case reveal a tenable allegation of a s. 7 violation? Or put another way is there a reasonable prospect of success on the issue? In my view, the allegation as articulated by counsel barely crosses this low threshold. The applicant relies on the decision of Nordheimer J. in R. v. Ward, [2002] O.J. No. 5398 (Ont. SCJ), in support of the proposition that cause of action estoppel is applicable in criminal proceedings. The facts in Ward are significantly different than those revealed in the materials provided to me. As well, the Crown has provided R. v. B. (1986), 1986 4711 (ON CA), 29 C.C.C. (3d) 365, wherein the Court of Appeal rejected an abuse of process argument on facts significantly more similar to those present in this case, though not addressing the concept of cause of action estoppel. That said, I am cognizant of the fact that I am not deciding the application today, I do not have all of the evidence and submissions on the issue. Effectively, I am only deciding whether there is a basis on which the application should be permitted to proceed. In my view, while the applicant may have an uphill battle establishing that this prosecution should be stayed, I am not prepared to conclude that there is no reasonable prospect of success.

[19] In view of this finding, the issue then becomes, is the sought after disclosure relevant to the Charter application. The advice sought and received by the officer who made the charging decisions in this case is directly relevant to the Charter application as framed. In a few instances, the Crown takes the position that the redacted notes, while privileged, are also irrelevant. That is an issue that can be easily assessed in view of what I will be proposing shortly.

[20] I turn now to the issue of privilege. The defence asks that I review the Crown’s privilege and relevance claims. The defence maintains that if I find that the material sought is the subject of solicitor client privilege, it is not entitled to receive it and will not be seeking it. To be clear, the defence is not seeking to pierce or lift the veil of privilege. In this regard, the request here is distinguishable from the request in R. v. Rutigliano, [2015] O.J. No. 3273 (Ont. CA) where the defence, at a pre-trial motion, sought access to privileged material in support of its Charter claim.

[21] The defence takes the further position that if material is found to be privileged and is therefore non-disclosable, the Crown, should it not seek a waiver of privilege from the police, may be hampered in alleging that the police acted in good faith in accordance with legal advice. I need not decide that issue at this time, and the Crown will no doubt consider the comments of the Supreme Court in Shirose and Campbell, 1999 676 (SCC), [1999] 1 SCR 565, in deciding what its final position will be on this issue at the abuse of process application.

[22] The Crown resists disclosure primarily on the basis that the material sought is privileged. It has tendered transcripts of the OIC’s testimony at the preliminary inquiry which in its submission support the contention that the sought after disclosure is covered by privilege. A review of the passages that have been drawn to my attention support the Crown’s position that the OIC sought the advice of Crown counsel in relation to steps taken in this investigation. There is no issue that the content of those discussions attracts the protection of solicitor client privilege. The more nuanced question is whether the redacted portions of disclosure would reveal those privileged communications. A related question arises over the scope of privilege. Does it apply to cover communications between the OIC who sought the advice from the Crown and the OIC of the Winnipeg investigation? If the OIC in York Region disclosed solicitor client communications to her Winnipeg counterpart, is that a waiver of privilege?

[23] The case law makes it clear that the Court should control the process of assessing privilege claims. That is done to ensure the integrity of the process and to prevent unwarranted breaches of the privilege. In order to assess the defence challenges to the redactions, I will need to review the impugned material in an unedited form. This process has been resorted to in assessing the validity of privilege claims in the disclosure context, see R. v. Basi, 2010 BCSC 26, [2010] B.C.J. No. 25 (BCSC), R. v. Belcourt, 2012 BCSC 234, [2012] B.C.J. No. 2633 (BCSC), R. v. Aitken, 2008 BCSC 744, and R. v. Brown, [1997] O.J. No. 6163 (Ont. Ct. (Gen. Div.)), in the search warrant context, see Re Toronto Star Newspapers Limited and the Queen, (2005) 2005 47737 (ON SC), 204 C.C.C. (3d) 397 (Ont. SCJ), in the confidential informant privilege context, see R. v. Omar, (2007) 2007 ONCA 117, 218 C.C.C. (3d) 242 (Ont. CA), and in other contexts as well, see for example the practices and protocols dealing with the searches of law offices with the use of a Court appointed referee: see R. v. The Law Office of Rosenfeld, [2003] O.J. No. 834 (Ont. S.C.J.) and Ontario (Provincial) Police v. Assessment Direct et al., 2016 ONSC 8130, and in the context of civil litigation where the Crown is a defendant in an action, see Whitty v. Wells, 2016 ONSC 7716.

[24] In order to conduct this review in as expedient manner as possible, I propose the following procedure subject to any further input from the Crown and defence:

1. The Crown will provide to the Court under seal an un-redacted version of the 14 items of sought after disclosure. This material will not be available to the defence or to the public.

2. I will review each item and provide, if possible, a judicial summary of the nature of the redacted disclosure without revealing its privileged content if any.

3. I will then invite submissions from both parties. The defence, of course, will not have access to the un-redacted document and as a result may be restricted to general or categorical submissions.

4. I will then rule on whether the impugned redactions are privileged. In my ruling, I will set out the nature and scope of the privilege that applies and I will also address the Crown’s claim that in relation to a few documents disclosure is not warranted due to third party privacy rights, “Crown discretion” and or clear irrelevance.

[25] In relation to the second application, in my view the cause of action estoppel and abuse of process application should proceed in advance of the trial in this matter. There is no allegation that the fairness of T.G.’s actual trial is imperilled in this matter. Rather, the allegation is that a trial, no matter how fairly conducted, should not occur as it would be an abuse of the Court’s process. This falls within the residual category of the abuse of process doctrine. See R. v. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309, at para 31. This is distinguishable from the lost or destroyed evidence cases where the general rule is that the stay application is brought at the end of the trial so that the Court is in the best position to assess the impact that the lost or destroyed evidence has had on the fairness of trial, see R. v. Bero, (2000) 2000 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. CA).

[26] The argument being advanced here is similar to that advanced when a special plea of autrefois is advanced. It is an argument that traces its existence back to the doctrine of res judicata. That is an argument that is traditionally addressed at the outset of a trial. There is no reason in this case to depart from that rule. The evidentiary base is separate and distinct from that which will be before the jury, should the matter get that far. As well, to reiterate, there is no issue regarding piercing or lifting the veil of solicitor client privilege that engages the timing issues discussed in R. v. Rutigliano, supra.

Justice J. Di Luca

Released: April 18, 2017

CORRIGENDA

1. Names of accused and complainant changed to use of initials only.

CITATION: R. v. T.G., 2017 ONSC 1314

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

T.G.

REASONS FOR RULING

Justice J. Di Luca

Released: April 18, 2017