Court File and Parties

COURT FILE NO.: 4403/16 DATE: 20170502 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Bradley MacGarvie, Thomas Nagy and Duran Wilson

BEFORE: The Honourable Mr. Justice Robert B. Reid

COUNSEL: G. Leach, Counsel, for the Crown R. Charlebois, and M. Peterson, Counsel, for Bradley MacGarvie G. Walker and B. Walker, Counsel, for Thomas Nagy J. Razaqpur, Counsel, for Duran Wilson

HEARD: April 12 and 13, 2017

Ruling on Disclosure

[1] Messrs. MacGarvie, Nagy and Wilson have been indicted for the first-degree murder of Alexander Fraser.

[2] An application has been made on behalf of Thomas Nagy for an order requiring the production of criminal records and occurrence reports relating to all Crown witnesses. Messrs. MacGarvie and Wilson support the application.

[3] The prosecution has agreed to produce the criminal records of the witnesses, updated to the date of trial.

[4] Submissions were focused on the defence request for the production of occurrence reports generated by the police involving Crown witnesses.

[5] The defence submits that the credibility of certain Crown witnesses will be a live issue at trial and that credibility may affect the reliability of the evidence tendered through those witnesses.

[6] It is anticipated that there will be approximately 35 civilian witnesses called to give evidence by the prosecution during the trial. During submissions, defence counsel limited their request for disclosure to any occurrence reports relating to nine potential witnesses: Valerian Iftody, Carol Acker, Randy Wilkes, Joshua Males, Alex Pidgeon, Mitchell Langlois, Isaura Bonin, Laura Kittl, and Simeone Linnane.

[7] No time or geographical limitation for the occurrence reports was suggested by the defence. Detective Sgt. Michael Barkway gave evidence that the computerized records of the Niagara Regional Police Service (“NRPS”) could be searched with relative ease for relevant occurrence reports and that records from the Hamilton Police Service were also accessible by the NRPS. He was not aware of whether the records maintained by other police services are available the same way.

Positions of the Parties

[8] The defence submits that the requested disclosure is required in order for the accused to make full answer and defence.

[9] Further, the defence submits that the requested records fall within the category of first-party disclosure required of the Crown under the Stinchcombe [1] regime. Alternatively, counsel submits that an order may be made for third-party disclosure.

[10] The Crown submits that occurrence reports in the circumstances of this case do not form part of its obligation of first-party disclosure. As to third-party disclosure, the proper procedure has not been followed by the defence and therefore the application is not properly before the court. Further, the Crown submits that the request is overly broad: there is no indication that any occurrence reports are relevant and the defence did not limit its motion to any particular time or geographical location. As such, it amounts to a fishing expedition.

Third-Party Records Disclosure

[11] It is clear that the procedure for disclosure of third-party records as set out in O’Connor [2] has not been followed in this application. The procedure is well known:

• The accused must bring a written application supported by an affidavit setting out a basis to believe that the records are likely relevant.
• Notice must be given to the custodian of the records and, if known, to persons who have a privacy interest in the records. In this case, that notice would be to the proposed Crown witnesses.
• The accused must ensure that the custodian and the records are subpoenaed to ensure their attendance in court. [3]

[12] Under the O’Connor procedure, if the record holder or some other interested party opposes the application, then the trial judge must determine first whether the records are “likely relevant” to the proceedings. If so, the records are examined by the trial judge to determine whether and to what extent production to the accused should be ordered. [4]

[13] Since the third-party records application is not properly before the court, there will be no order in that regard.

[14] Subject to my comments below about the Crown’s first-party disclosure obligation, I leave it to the defence to determine whether a third-party application is required, and if so, they will presumably follow the proper steps to have the application heard in a timely way.

First-Party Records Disclosure

[15] Pursuant to the disclosure required by Stinchcombe, the Crown must disclose the fruits of the investigation. The investigating police service has a corresponding obligation to disclose to the Crown all material pertaining to its investigation of the accused. As Charron J. stated in R. v. McNeil, “For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first-party footing as the Crown.” [5] Having said that, the court was careful to link the police and the Crown as one entity for disclosure purposes only in a narrow sense and confirmed that: “the two are unquestionably separate and independent entities, both in fact and in law. Hence, production of criminal investigation files involving third parties … usually falls to be determined in the context of an O’Connor application.” [6]

[16] In the 2014 decision of R. v. Quesnelle, [7] the Supreme Court again considered the issue of disclosure, in that case as to police occurrence reports involving a complainant. The context there involved matters of sexual assault and the application of the amendments to the Criminal Code known as the Mills [8] regime. The court confirmed the Crown’s duty set out in McNeil to make reasonable inquiries and the corresponding police duty to supply relevant information and evidence to the Crown. [9] As in McNeil, the court was careful to note that for the purposes of first-party disclosure, “the Crown” does not refer to all Crown entities but rather is the prosecuting Crown and that all other Crown entities, including police, are “third parties.” [10]

[17] Clearly the question of whether disclosure falls within the Crown’s first-party obligation or the defence’s right to make a third-party application is fact-specific and depends on the context of the case.

[18] A helpful analysis was undertaken by Watt J.A. in R. v. Jackson: [11]

[91] Two principal factors determine the disclosure/production regime that will apply when an accused seeks disclosure of something the Crown has not provided. The first has to do with the nature of the information of which disclosure/production is sought. The second concerns who is in possession or control of that information.

[92] Turning first to the nature of the information. The descriptive “fruits of the investigation” accurately captures the subject-matter of first party/ Stinchcombe disclosure. The term embraces relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet. [Emphasis added]

[97] Next, it is necessary to determine who was in possession or control of the records.

[98] In this case, the records sought were not in the possession of the prosecuting Crown. The evidence is unequivocal. The records were generated by and in the exclusive control of the [Ottawa Police Service]. The OPS is a third party for these purposes. Their possession and control of the records sought does not engage the first party disclosure scheme of Stinchcombe.

[19] In Jackson, the requested records related to the maintenance of the breathalyzer machine used to test the accused’s breath, the results of which test formed evidence against the accused. The Court of Appeal held that those records had no association with the predicate offence.

[20] In this case, the nature of the information sought is the content of any police occurrence reports applicable to the nine potential Crown witnesses identified by the accused. Counsel advised that credibility will be a significant matter in the trial and prior contacts between witnesses and the police, depending on the circumstances, may be a fruitful source of challenge to the reliability of the evidence presented. I consider that any such evidence may well be relevant and it certainly connects directly to the case through the Crown witnesses. Police occurrence reports involving Crown witnesses reasonably can be expected to contain information that may assist an accused in the exercise of the right to make full answer and defence.

[21] The occurrence reports are not in the possession of the prosecuting Crown. To the extent they exist for any or all of the witnesses, they are in the possession of the NRPS or another police service.

[22] In the circumstances of this case, I find that disclosure of police occurrence reports as contained in the computerized records of the NRPS for the nine Crown witnesses listed above is required within the broad scope of the Crown’s first-party duty of disclosure. As I have noted, they relate directly to witnesses who have been interviewed by the police as part of the investigation and whose evidence will be used by the Crown to establish its case against the accused. Credibility will be an issue. There has already been an agreement to provide the criminal records of all Crown witnesses to the defence. Of course, the relevance of any information contained in occurrence reports will not be known until production is made, although, in my view, it is likely that the reports would have been the subject of disclosure to the defence already had the Crown come into possession of them from the police.

[23] Therefore, any occurrence reports for the nine listed witnesses accessible through the NRPS computer system are to be disclosed by the Crown to the defence.

[24] I make no order requiring any other police service to search its records or produce copies of occurrence reports. I consider other police services who have not been involved in the investigation to be third parties and that possession and control of the records by them does not engage the first-party disclosure scheme of Stinchcombe.

Reid J. Date: May 2, 2017

References

[1] R. v. Stinchcombe, [1991] 3 S.C.R. 326. [2] R. v. O’Connor, [1995] 4 S.C.R. 411. [3] R. v. Gravesande, 2015 ONCA 774, at para. 50. [4] Ibid., at para 51. [5] R. v. McNeil, 2009 SCC 3, at para. 14. [6] Ibid., at para 25. [7] R. v. Quesnelle, 2014 SCC 46. [8] R. v. Mills, [1999] 3 S.C.R. 668. [9] Quesnelle, at para. 18. [10] Ibid., at para 11. [11] R. v. Jackson, 2015 ONCA 832, at paras. 91-92 and 97-98.