Court File and Parties

Court File No.: CR-16-40000443-0000 Date: 2017-05-31 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Jesse Bonello

Counsel: Kathy Nedelkopoulos, for the Crown Jesse Razaqpur, for the Applicant David Butt, for Witness Respondents (Tyrone Saunders and Lauren Smith) M. Swindley, for the Kingston Police Service, Respondent

Heard: May 29 – 31, 2017

Disclosure Ruling

A.J. O’Marra J.

[1] The applicant is charged with robbery with a firearm, assault with a weapon, disguise with intent and assault bodily harm involving an alleged robbery of Tyrone Saunders May 21, 2015.

[2] The Crown’s principal witnesses are the complainant/victim, Tyrone Saunders and his girlfriend Ms. Lauren Smith.

[3] The applicant has applied for disclosure of all police occurrence reports relating to the principal witnesses pursuant to the Crown’s disclosure obligations under Regina v. Stinchcombe, [1991] 3 S.C.R. 326.

[4] In the alternative, the applicant under an O’Connor application seeks an order of the court for disclosure of all police occurrence reports relating to Tyrone Saunders and Lauren Smith as relevant and necessary for him to make full answer and defence.

[5] Tyrone Saunders has a lengthy criminal record filed by the applicant on the application which consists of a youth court criminal record from 2002 to 2006 and as an adult 2006 to 2014. The applicant obtained an order of the youth criminal court April 27, 2017 permitting the release of his youth court record. Ms. Lauren Smith has no criminal record.

[6] Initially the applicant made a request of the Crown for the disclosure of all occurrence reports as they relate to the two principal witnesses. The Crown took the position that such records were not in its possession and it had no Stinchcombe disclosure obligations as a result.

[7] On the application, the applicant subpoenaed the occurrence reports from the four police services involved in the offences that comprise Tyrone Saunders’ criminal record - the Toronto Police Service, York Regional Police Service, Kingston Police Service and the Ontario Provincial Police. The four police services provided the occurrence reports as requested relating to offences committed in their respective jurisdictions and are now before the court as sealed documents, (Exhibits A, B, C and D).

[8] The applicant seeks the documentation on the grounds that it is necessary because the credibility of Mr. Saunders and Ms. Smith is expected to be a key issue on the trial.

[9] Further, Counsel for the applicant in his solicitor’s affidavit states:

I believe that the criminal lifestyle of Mr. Saunders and/or Ms. Smith is relevant to the allegations insofar as this criminal background could affect the jury’s assessment of how likely the applicant was to have committed the crime, as a person heavily involved in a criminal lifestyle maybe more likely than a law abiding citizen to be the target of violence by other (unknown) persons aside from the applicant.

[10] Insofar as Mr. Saunders is concerned, counsel for the applicant in the affidavit asserts that he is a former friend of Mr. Bonello (the applicant), with whom there was a falling out. Ms. Smith is alleged to be the former girlfriend of Mr. Bonello, and a friend of Mr. Saunders.

[11] The respondents to the application are the Crown, the witnesses Tyrone Saunders and Lauren Smith represented by counsel and the Kingston Police Service all of whom oppose the production of the requested occurrence reports.

[12] The documents at issue, filed under seal, which the applicant seeks access are police documents prepared by a number of police services relating to the criminal offences committed by Tyrone Saunders. I am unaware if there are any occurrence reports that relate to Lauren Smith, as she has no criminal record.

[13] Occurrence reports as they relate to Tyrone Saunders, and any for Lauren Smith, if they exist, were not prepared in relation to the investigation as it relates to the applicant. Indeed, on the face of the criminal record of Tyrone Saunders, the last entry in the criminal record, May 20, 2014, predates the alleged incident of May 21, 2015, by more than a year.

Stinchcombe Disclosure

[14] In Regina v. Quesnelle, 2014 SCC 46 at para 41, the Supreme Court observed that police occurrence reports made in the course of the offence being prosecuted must be disclosed under Stinchcombe. The court then went on to state at para 42:

But what of police occurrence reports that were made in connection with separate incidences, rather than as part of the investigation into the offence being prosecuted? There will certainly be times when the disclosure of such records is necessary to ensure a fair trial. Consequently, the Mills regime gives trial judges the power to disclose records under such circumstances. The judge must balance the privacy of complainants and witnesses against ensuring the disclosure necessary to make full answer and defence. However, the fact that a record might be disclosed under appropriate circumstances does not nullify the expectation of privacy in that record in general.

[15] In Regina v. McNeil, 2009 SCC 3, a case that dealt with the production of police disciplinary records and criminal investigation files relating to the Crown’s main witness, the court held that under Stinchcombe the Crown’s first party disclosure obligation extends only to material relating to the accused’s case, in the possession or control of the prosecuting Crown, material that is commonly referred to as the “fruits of the investigation”.

[16] In this matter, the occurrence reports at issue created by several different investigative agencies from several unrelated investigations that involve witnesses cannot be considered as “fruits of the investigation”.

[17] Insofar as the Crown’s disclosure obligation relating to its principal witnesses it was met by the disclosure of the criminal record of Tyrone Saunders which was available to the Crown as part of the investigative file and produced to the applicant. Certainly, the applicant is in a position to use the criminal record in the cross-examination of Tyrone Saunders pursuant to s. 12 of the Canada Evidence Act. Further, questions as to the underlying circumstances for those offences can be asked to attack the credibility of the witness, as well as his criminal lifestyle. The same cannot be said however as it relates to Ms. Smith as there is no criminal record.

The O’Connor Application

[18] In McNeil at para 11 it is noted that where there are criminal investigation files that involve third parties, as applies here to Tyrone Saunders and possibly Lauren Smith, the court observed that the production of such records usually falls to be determined in the context of an O’Connor application, at para 11:

…The procedure set out in O’Connor provides a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown. Whether or not the targeted record is subject to a reasonable expectation of privacy is one of the questions that must be determined at the hearing of an O’Connor application. (Emphasis added)

[19] Further, the court noted at para 12 that there can be no assumption that criminal investigation files that relate to third parties do not attract an expectation of privacy, absent consideration of their particular contents and other relevant factors.

[20] Where, investigative files and occurrence reports involving third party interests do not fall within the scope of first party disclosure obligations of the Crown under Stinchcombe, it falls to be determined under the O’Connor principles by the court in an assessment of the third parties’ interests and the accused’s right to a fair trial.

[21] The O’Connor principles as they relate to applications to produce third party records are set out succinctly by Watt J.A. in Regina v. Bradey, 2015 ONCA 738.

1. The common law regime under O’Connor provides a general mechanism for the production of any record beyond the possession or control of the prosecuting Crown. The principles apply to any third party records and not just those to which a reasonable expectation of privacy attaches.
2. The applicant bears an onus to establish that there is logically probative material in existence that may be useful to the applicant in making full answer and defence.
3. Because the records are created unrelated to the investigation or prosecution of the offence one cannot assume that the records are likely to be relevant. It is for the applicant to demonstrate the likely relevance of what is being sought. Some cases have referred to this part of the application as Stage one.
4. The burden on the applicant to demonstrate likely relevance is significant but not an onerous one: “the burden is significant because it must play a meaningful role in screening applications to weed out speculative, fanciful, disruptive, unmeritorious and time consuming requests for production” (see: McNeil at para 29 and O’Connor at para 24).
5. The information in the record must be shown to be likely relevant to an issue in the proceeding or to the competence of a witness to testify: “An issue in the proceedings includes substantive issues, the credibility of the witness and the reliability of other evidence in the case” (see O’Connor at para 22, McNeil at para 33 and Regina v. Batte, (2000), 49 O.R. (3d) 321 (CA)). Further, in determining likely relevance the demonstration of the precise manner in which the documents could be used at trial is not required because the accused has not seen the documents (McNeil at para 33). This is sometimes referred to as the “Catch 22” conundrum.
6. If the records are found to be likely relevant, then under stage 2 the court reviews the documentation and conducts a case specific assessment which involves the balancing of a number of factors. Production should only be ordered in respect of the records or parts of the record that have significant probative value not substantially outweighed by the danger or prejudice to the proper administration of justice or by harm to privacy interests or any claim of privilege.

Such relevant factors include but are not limited to:

(i) the extent to which the record is necessary for the accused to make full answer and defence; (ii) the probative value of the record; (iii) the nature and extent of the reasonable expectation of privacy vested in the record; (iv) potential prejudice to the dignity, privacy or security of the person of the individual who is the subject of the record; and (v) the effect on the integrity of the trial process of producing or failing to produce the record.

First Stage of the Test

[22] Under O’Connor the applicant is to establish under the test of likely relevance that there is a reasonable possibility the information is logically probative to an issue at trial, which also includes evidence relating to the credibility of witnesses and the reliability of other evidence. In Regina v. Batte supra at para 75 Doherty J.A., in reference to the common law scheme referred to in O’Connor, noted that:

The mere assertion that a record is relevant to credibility is not enough. An accused must point to some “case specific evidence or information” to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value.

[23] In my view, this consideration applies whether it relates to an application under s. 278, or under the common law scheme.

[24] In this instance, the applicant submits that the occurrence reports relate not only to being able to question the credibility of the principal witnesses but to use to show that they live a criminal lifestyle which could affect the jury’s assessment as to how likely the applicant was to have committed the crime.

[25] Counsel for the witnesses, Tyrone Saunders and Lauren Smith, acknowledged candidly while production is opposed for both witnesses, the criminal record of Saunders is obviously relevant and useful standard fare for cross-examination and that the underlying circumstances of the criminal record could be seen as going beyond the mere assertion that it is relevant and logically probative to the credibility of the witness. I agree.

[26] I shall engage a review of the occurrence reports as they relate to Tyrone Saunders to determine the extent to which production is ordered.

[27] Insofar as the application applies to Ms. Smith, in the absence of a criminal record or any case specific evidence or information, I find that the claim that there may possibly be occurrence reports, based solely on an association with both the applicant and the principal witness Tyrone Saunders, to be no more than a fishing expedition. It is speculative at best that there are occurrence reports in the possession of the various police agencies. The applicant has not provided any case specific evidence or information, just a bald assertion that there may be something relevant to her credibility and/or of potential impeachment value in the possession of the various police services where she has lived. The application as it relates to Ms. Smith is dismissed.

A.J. O’Marra J. Released: May 31, 2017

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – JESSE BONELLO Applicant

REASONS FOR JUDGMENT A.J. O’Marra J. Released: May 31, 2017