CITATION: R. v. Mossaddad, 2017 ONSC 5520
COURT FILE NO.: CR-15-00008691
DATE: 20170919
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CAMERON ALEXANDER MOSSADDAD
Defendant
Mr. Brian McCallion, for the Crown
Mr. Daniel Brodsky, for the Defendant
HEARD: August 4, 2017
PUBLICATION RESTRICTION NOTICE
Information contained herein is prohibited from publication, broadcasting or other transmittal of evidence at the preliminary inquiry pursuant to Section 539 of the Criminal Code of Canada.
ruling on APPLICATION FOR DISSEMINATION OF CROWN DISCLOSURE
EDWARDS J.:
Introduction
[1] At the commencement of various pre-trial motions that ultimately focused on the voluntariness of statements given by Cameron Mossaddad (“Mossaddad”), Mr. Brodsky sought a brief adjournment to seek instructions from his client. The instructions were ultimately reduced to writing and Mossaddad sought to have those instructions filed as an exhibit. I suggested to Mr. Brodsky and Mossaddad that the instructions were subject to solicitor-client privilege and should not be published in open court.
[2] Despite the concern that I had with respect to solicitor-client privilege Mossaddad asked to address the Court, and after hearing his own personal request that I review the instructions - and after having sought the advice of Mr. Brodsky, the written instructions were provided to me; read by me; and marked as Exhibits A and B. Mossaddad had concerns that by marking the instructions as Exhibits A and B, he would be precluded from using the documents in some fashion outside of the Court. I advised Mossaddad that the open court principle was an important one, and that my concern in marking the documents as Exhibit A and B was to ensure that they not make their way into the Court record that would ultimately be placed before the jury. I advised Mossaddad that if he chose to disseminate Exhibits A and B outside of the courtroom that was entirely up to him, but I did have a concern in terms of how the documents could potentially impact on the selection of the jury.
[3] Exhibit A, which ultimately became Exhibit 3 on this application, states:
I, Cameron Alexander Mossaddad, am requesting the removal of a covenant barring counsel from disseminating disclosure related to this case. On grounds that my right to a fair trial is being transgressed and that an on-going attempt to cover up impropriety is in motion. Personally I am of the opinion that the justice system participants in which I’ve had involvement with are interested in narrowing the focus of the case as to mitigate serious issues that arise in the disclosure. My faith in the justice system to touch upon and rectify key concerns is non-existent based on responses to my claims. Hence I ask for the striking down of the disclosure undertaking to allow for a fostering of justice since the current avenue blockades me.
[4] This Ruling addresses the fundamental question raised by Mossaddad in relation to his application, the effect of which would be to remove the undertaking not to disseminate the Crown disclosure in this case so as to allow Mr. Mossaddad to use the Crown disclosure in any way, shape or form that he chose, in order to ensure that his right to full answer and defence in this case is properly met.
The Facts
[5] Mossaddad is charged with first degree murder. The Crown alleges that on May 23, 2015, Mossaddad murdered his 70 year old grandmother, Herma Parkes.
[6] Disclosure in this case appears to have taken place on January 29, 2016. Filed as Exhibit 1A and 1B on this application are documents entitled “Media Disclosure”. These documents appear to be signed by Tania Bariteau, who I am advised at the time was an articling student acting under the direction of Mr. Herscovitch who was counsel of record for Mossaddad. A subsequent media disclosure undertaking was signed on July 20, 2016 by Derstine, Penman, the law firm where Mr. Herscovitch was employed.
[7] During the course of argument I was advised that the written media disclosure undertaking, signed on behalf of Mr. Herscovitch, did not cover the entirety of the disclosure that would now be in the hands of Mr. Brodsky.
[8] Mr. Brodsky sought directions from this Court with respect to whether or not he continued to be bound by the undertaking given by Mossaddad’s prior counsel, Mr. Herscovitch. In my view, Mr. Brodsky properly brought this matter before me to seek the Court’s direction.
[9] Part of the evidence filed on this application was Exhibit 4, which had previously been Exhibit B on the voluntariness application. This was one of the two handwritten documents prepared by Mossaddad on the first day of the voluntariness application. The document reads:
My position, Cameron Alexander Mossaddad, in regards to the video statement solicited on May 23, 2015 was done under coercion. With use of threats and assault to produce the information heard on the interview recording. Furthermore, that the statement mentioned was altered in an attempt to cover up procedural breach by York Regional Police. Namely being that duty counsel was spoken with succeeding the interview not prior as depicted. Numerous counsel members have been informed of my stance in regards to the allegation – my being framed for murder – and have done very little in following my instructions to prove so.
[10] The essence of Exhibit 4 is an allegation by Mossaddad that his video statement was obtained as a result of threats and an assault, and that the actual statement was altered in an attempt to cover up the suggestion by Mossaddad that he did not have his rights to counsel provided to him and an opportunity to speak to duty counsel until after he had given the statement.
[11] Other than what had been Exhibits A and B on the voluntariness application and Exhibits 1A through 1C, the Media Disclosure documents, as well as an email exchange between Crown counsel and Kathy Dickson concerning the disclosure provided in this case, no other evidence was filed. Specifically, no evidence was filed by Mossaddad that would give any credence to the allegations that he makes in Exhibits 3 and 4.
[12] During the course of argument of this application, I enquired of Mr. Brodsky as to how the removal of the undertaking not to disseminate Crown disclosure would assist Mossaddad in making full answer and defence to the charge of first degree murder. In that regard, Mr. Brodsky advised that his client wanted to be released from the undertaking so that he could publish any or all of the disclosure to anyone, including the media. Mr. Brodsky was entirely candid in acknowledging that he could not provide the Court with any evidence as to how releasing the disclosure to the media, or for that matter anyone else, would assist Mossaddad in making full answer and defence. Mr. Brodsky seeks the direction of the Court, in the context of whether the instruction he has received from Mossaddad to release the disclosure is an appropriate instruction that he would now be required to follow.
[13] In relation to the suggestion made by Mossaddad in Exhibit 4 that the video statement has been “altered”, Mr. Brodsky agreed with me that if this was a real issue it would be open to Mr. Brodsky to submit the video to an expert for appropriate analysis. Submitting the video for expert analysis would not be in breach of the undertaking.
Position of the Crown
[14] Crown counsel takes the position that even if the media disclosure, Exhibits 1A through 1C inclusive, do not cover the entirety of the disclosure provided to the defence, that there still remains an implied undertaking that the Crown disclosure is not to be used for any other purpose other than to allow Mossaddad to make full answer and defence to the charge before the Court. Specifically, Crown counsel argues that it would be an improper use of the Crown disclosure if it was disseminated to the media or to anyone else other than defence counsel.
Position of the Defence
[15] Mr. Brodsky, by this application, simply seeks the Court’s direction with respect to whether he is bound by the undertaking not to disclose the Crown’s disclosure. If he is bound by that undertaking he cannot ethically follow his client’s instructions to release the Crown disclosure to the media or anyone else.
Analysis
[16] In part, this application engages the question of whether or not Crown disclosure made to defence counsel is covered by the written undertaking reflected in Exhibits 1A through 1C, and if the written undertaking does not cover all of the disclosure whether there is a deemed undertaking that would prevent defence counsel from using Crown disclosure for any other purpose other than the defence of his client.
[17] The application, as well, also engages a discussion of the extent to which defence counsel should be released from an undertaking not to disclose, where an accused raises the question of the dissemination of the Crown disclosure outside of the Court process for the purposes of making full answer and defence.
[18] There is no issue on this application that the Crown has made disclosure. There is no issue raised by Mr. Brodsky that the Crown has not met its disclosure obligations. It has been well recognized that disclosure is one of the most important and fundamental rights that an accused has in our criminal judicial system. The right of an accused to make full answer and defence is inextricably tied up with an accused’s right to disclosure.
[19] The use to which defence counsel – or for that matter a self-represented accused, can make of Crown disclosure has been the subject matter of considerable discussion dating back to what is often referred to as the Martin Report – Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution: Toronto Queen’s Printer 1993, (“The Martin Report”), where at p. 175 the author notes:
…However, it cannot be overlooked that, while the right to make full answer and defence is paramount in the realm of disclosure, there are other important, and competing, values at stake. These values include public safety, the privacy interest of victims or witnesses, and the need to maintain the integrity of the administration of criminal justice. These important values must be accommodated to the greatest extent possible.
[20] The Court of Appeal in R. v. Papageorgiou, 2003 CanLII 52155 (ON CA), [2003] O.J. No. 2282, dealt with the appeal from an endorsement of Hawkins J., which provided at para. 6:
The Crown seeks to restrict the condition under which the videotape of the complainant’s statement may be viewed by the accused e.g. in the Crown’s office during business hours. This is allegedly a practice because of the “sensitive” nature of sexual assault (and similar) proceedings. I see no reason why the accused’s access be so limited. This is the fourth appearance by the accused. In view of this the appeal is allowed and the proceeding stayed. It might be useful if the Crown appealed this ruling.
The Crown did appeal the Ruling of Hawkins J., 2003 CanLII 52155 (ONCA), and the Court of Appeal dealt with the disclosure issue at para. 8 as follows:
The Crown’s disclosure obligations in a criminal case are well-established. The Crown has a legal duty to disclose all relevant information to the defence. That duty, however, is not absolute. The Crown retains a discretion concerning the withholding of information and the timing and manner of disclosure, and regarding the relevance of information. The Crown’s discretion in that connection is reviewable by the trial judge, who must be guided by the controlling principle that, unless non-disclosure is justified by the law of privilege, information should not be withheld from the defence if there is a reasonable possibility that the withholding will impair the right of an accused to make full answer and defence.
In coming to the conclusion that the Crown’s proposal limiting the access to the videotape was an appropriate limitation the Court of Appeal, at para. 16, stated:
The Crown’s proposal for the provision of further access to the videotape was unobjectionable unless there was an evidentiary basis on the record before the summary conviction appeal court judge to conclude that there was a reasonable possibility that the respondent’s right to make full answer and defence would be impaired thereby… [Emphasis added]
[21] The Court of Appeal concluded that the record did not support the conclusion that the respondent’s right to make full answer and defence had been impaired. I note in this case that Mossaddad has put before this Court no evidence with respect to how his right to make full answer and defence is impaired by the undertaking not to disclose, other than his unsubstantiated suggestion that the videotape statement has been altered.
[22] The question of whether or not the Crown can require defence counsel to provide an undertaking prior to providing Crown disclosure was dealt with by Dawson J. in R. v. Mohammed, 2007 CanLII 5151, in the context of a submission made that requiring such an undertaking was unreasonable and in violation of s. 7, 10(b) and 11(d) of the Canadian Charter of Rights and Freedoms. In dealing with this issue, Dawson J. noted that the Supreme Court of Canada in R. v. Stinchcombe, 1991 CanLII 45, did not specifically address whether it was appropriate for the Crown to impose terms that would limit the use to which defence counsel could make of the disclosure materials. While acknowledging there was no such discussion in Stinchcombe about such an undertaking, Dawson J. further noted that Stinchcombe did not address all aspects of the Crown’s discretion with respect to the manner of disclosure. Dawson J. went on to refer to the Martin Report in support of the proposition that the defence should be required to give an undertaking concerning the use of disclosure.
[23] The question of whether or not counsel is bound by a deemed undertaking not to disseminate Crown disclosure in any manner, except for the purposes of making full answer and defence, has not been specifically addressed from my review of the jurisprudence here in Ontario. A good starting point for the application of the defence undertaking in connection with Crown disclosure should begin with a decision of Watt J. (as he then was) in R. v. Blencowe, 1997 CanLII 12287 (ON SC), [1997] O.J. No. 3619, where at paras. 56 and 57 Watt J. stated:
The privacy and public interests which I have identified only warrant disclosure by private viewing if they cannot be satisfied by an appropriate undertaking by defence counsel. The undertaking is not for the purpose of prohibiting or impeding the viewing of the tapes by the applicant, his counsel or any expert retained by the defence. Of that form of disclosure, the prosecutor cannot and does not complain. There is a matter of constitutional entitlement that cannot be swept aside.
It is necessary, however, that the privacy and public interest identified earlier not be further compromised by copying, viewing, circulation or distribution of the tapes beyond what is necessary to give effect to the applicant’s constitutional right. The issue is whether, by conditions attached to the disclosure of copies, the desired result and necessary balance can be achieved. I am satisfied that, in this case, it can be.
[24] Blencowe dealt with an application by an accused charged with child pornography for the disclosure of the original videotapes and the refusal of the Crown to produce copies. Watt J. concluded that the accused was entitled to a copy of the videotape, but in coming to that conclusion he imposed various conditions, the essence of which would have precluded the dissemination of the videotapes to anyone other than defence counsel and any expert retained by the defence for the purposes of preparing the accused’s defence.
[25] The civil motion lists of many of the courtrooms across the province have a significant number of Crown disclosure motions which are often referred to as Wagg motions. The genesis for the Wagg motion is a decision of the Ontario Court of Appeal in D.P. v. Wagg, 2004 CanLII 39048, which dealt with the to disclosure of documents obtained by a defendant as a result of the disclosure process in a criminal proceeding. The Court of Appeal noted in its review of the jurisprudence that the House of Lords had considered the implied undertaking rule as it applies in the criminal and civil context in Great Britain in Taylor and Others v. Director of the Serious Fraud Office and Others, [1998] H.L.J. 38, where at para. 42 Lord Hoffmann stated:
…the disclosure of documents by the prosecution as unused material under its common law obligations did generate an implied undertaking not to use them for any collateral purpose.
[26] It is noted by the Court of Appeal in Wagg that the implied undertaking rule in criminal proceedings has now been codified in Great Britain by s. 17 of the Criminal Procedure and Investigations Act, the essence of which provides that an accused who has been given a document or other object as a result of the Crown’s disclosure obligations must not use or disclose it, or any information recorded in it, except “in connection with the proceedings for whose purposes he was given the object to allowed to inspect it”. It is noted in Wagg that the prohibition does not apply to any object or information to the extent that it has been displayed to the public in open court.
[27] Having reviewed the jurisprudence Rosenberg J.A. in Wagg concluded, as it relates to the question of whether there is an implied undertaking rule applicable to Crown disclosure, as follows:
As I said earlier, it is not, strictly speaking, necessary to decide in this case whether there is an implied undertaking rule applicable to Crown disclosure. While it would seem to me that there are compelling reasons for recognizing such a rule, we did not have complete argument on the issue. As well, all persons who might have an interest in the nature and breadth of such a [page 246] rule [see Note 4 at end of the document] were not before the court in this case [see Note 5 at end of the document]. I am therefore reluctant to lay down a rule in this case that could have important practical consequences in other types of litigation. Suffice it to say, the compelling reasons for possibly recognizing an implied undertaking rule justify the adoption of the screening process where the Crown brief, for whatever reason, finds its way into the hands of a party in a civil case.
[28] To this point in time, I am unaware of any jurisprudence from the Court of Appeal that speaks directly to the question of whether or not there is an implied undertaking which precludes the dissemination of Crown disclosure outside of the criminal context, or within the criminal context for purposes that may be unrelated to the issue of full answer and defence. The question of whether such an implied undertaking exists outside of Ontario has, however, been the subject matter of review by various courts across the country.
[29] In R. v. Robert James Little, 2001 ABPC 13, Meagher J. reviewed the question of whether an implied undertaking existed with respect to the use of Crown disclosure. At paras. 36 and 37, Meagher J. reviews the implied undertaking in the context of civil proceedings. At para. 38, Meagher J. states:
Based on the foregoing, these cases support a proposition or finding that in discovery or disclosure in criminal proceedings there exists an implied undertaking on behalf of defence counsel to use the materials only for the purposes of those proceedings and not for any collateral or ulterior purpose, and furthermore that this implied undertaking is an obligation or duty owed by defence counsel to the court.
[30] The question of whether or not there is an explicit or implied undertaking was considered by the British Columbia Supreme Court and Court of Appeal in Wong v. Antunes, 2008 BCSC 1739, rev’d 2009 BCCA 278. The trial decision in Wong, at para. 38, provides:
An accused who receives documents or information in the course of Crown disclosure is constrained by an explicit or implied undertaking not to use the documentation except for the purpose of making full answer and defence to the criminal charge. The accused is not permitted to disclose the information to the world at large. The undertaking to refrain from disclosure is no different from the implied undertaking that arises in the context of civil litigation: see Juman v. Doucette, 2008 SCC 8, 75 B.C.L.R. (4th) 1 (S.C.C.). The undertaking which binds the accused may be modified with the consent of the Crown, or by court order in appropriate circumstances, as in Huang and other the instances cited in that case.
[31] At para. 6 of the Court of Appeal decision in Wong, the British Columbia Court of Appeal stated:
The practice in British Columbia is that the information contained in the so‑called “Stinchcombe package” is disclosed on the condition that the recipient undertakes not to disclose its contents for any collateral purpose.
[32] The question of whether or not an implied undertaking existed in British Columbia came up for further consideration in R. v. Basi, 2011 BCSC 314, where the Court of Appeal’s decision in Wong was reviewed in relation to the question of whether or not there was an implied undertaking having the force of law in British Columbia. Associate Chief Justice MacKenzie concluded that the issue of whether or not there was an implied undertaking had been left unresolved by the Court of Appeal in Wong. Nonetheless, he came to the following conclusion:
If Bennett J.’s statement left any doubt about the existence of an implied undertaking rule in British Columbia, I would affirm that an accused who receives disclosure material pursuant to the Crown’s Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding.
[33] The question of whether a deemed undertaking applied in New Brunswick was considered in LeBlanc v. Haché et al, 2014 NBQB 99, where at para. 46 DeWare J. concluded:
In my opinion, the analysis provided by MacKenzie J. in Basi explains the current practice in the province of New Brunswick. An accused has the right to receive full disclosure of the Crown brief to ensure that he can make full answer and defence. After criminal proceedings have ended, a person can still apply for access to the Crown brief, including the disclosure, in the context of a civil action by following the principles set out in Wagg or as instructed in a particular statute. Under those circumstances, the Court considers the need to protect third parties and private information. Other than the exceptions based on the criteria explained in Wagg or under a particular statute, I agree that there is an implied undertaking in New Brunswick that limits the use of the Crown brief to ensuring that an accused can make full answer and defence in the context of a criminal prosecution. [Emphasis in original]
[34] In Saskatchewan, the question of an implied undertaking was dealt with by the Court of Appeal for Saskatchewan in R. v. Lucas, 1996 CanLII 4926, where Vancise J.A. noted that there are many interests which require protection in a criminal trial, which include not only the interests of the accused person but also the privacy interests of victims, witnesses and the need to protect the integrity of the administration of justice. Vancise J.A. went on to refer to The Martin Report and concluded as follows:
These two recommendations, as the Committee noted: ‘responsibly reconcile the need to provide full disclosure with the need to prevent misuse of disclosure material.’ We agree with those recommendations and comments. The material which is disclosed for the purpose of making full answer and defence should not be released to third parties either by the lawyer representing the accused or the accused person himself.
[35] In the context of a criminal trial the Crown, in fulfilling its Stinchcombe disclosure obligations, typically does so on the basis of a written undertaking from defence counsel not to disclosure such materials for any other purpose other than making full answer and defence in the context of the criminal proceeding. There may also be situations where the Crown, having received such written undertaking, continues to fulfill its Stinchcombe disclosure obligations but fails to obtain such a written undertaking. This case, I am told, reflects that type of situation where the initial disclosure was subject to a written undertaking but subsequent disclosure was not. If the legal basis for requiring a written undertaking justifies the Crown’s request for such a written undertaking, one may rhetorically ask the question why there should be any difference between a written undertaking and an implied undertaking.
[36] Great Britain has codified the implied undertaking rule in s. 17 of the Criminal Procedure and Investigations Act, 1996 U.K., 1996, c. 25. In the context of a civil action in Ontario, Rule 30.1.01(3) of the Rules of Civil Procedure codifies the deemed undertaking rule as it relates to the use of documents obtained through the disclosure process provided for in the Rules as follows:
All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.
[37] The Civil Rules mandate the disclosure obligations of parties to a civil action. The Stinchcombe disclosure rules mandate the obligations of the Crown in relation to a criminal proceeding. It is beyond doubt that in the context of the Stinchcombe disclosure obligations, beginning with the decision of Watt J. in Blencowe, that the Courts of this province have recognized it is entirely appropriate to attach conditions to which the use of such disclosure can be made. As previously reflected in The Martin Report at page 175:
…while the right to make full answer and defence is paramount in the realm of disclosure, there are other important and competing values at stake. These values include public safety, the privacy interests of victims or witnesses, and the need to maintain the integrity of the administration of justice. These important values must be accommodated to the greatest extent possible.
[38] To suggest that Crown disclosure that may have been made to defence counsel - or for that matter the accused directly where he or she is self-represented, should not attract the same considerations because a written undertaking has not been obtained, in my view would fail to recognize the competing interests and values reflected in the aforementioned quotation from The Martin Report. I am satisfied, having reviewed the jurisprudence across this country, that the time has come for this court to recognize that whether or not the Crown disclosure provided to defence counsel or a self-represented accused is the subject of a written undertaking, that a deemed undertaking nonetheless would apply such that the only basis upon which the Crown disclosure may be used would be in the context of providing a full answer and defence to the criminal proceedings.
[39] If defence counsel or an accused has received disclosure that is not the subject matter of a written undertaking, I am of the view that a deemed undertaking nonetheless applies to such disclosure and no use may be made of such disclosure outside of the context of the criminal proceedings without further direction from the court.
[40] In this case, Mr. Brodsky has been entirely candid with the court and simply seeks directions with respect to the instructions that he has received from Mr. Mossaddad, the effect of which would be to release Mr. Brodsky from the written undertaking and a deemed undertaking not to disclosure the Crown disclosure for purposes unrelated to the defence of these criminal proceedings. In the absence of any evidence from Mr. Mossaddad as to the explicit purpose for which he wishes the Crown disclosure to be used, I am not satisfied that Mr. Brodsky has any legal basis upon which he would be required to fulfill the instructions that he has received from his client. If Mr. Mossaddad does have a legal basis upon which he wishes the Crown disclosure to be released to someone other than Mr. Brodsky, then I am prepared to hear further submissions on the basis of a proper evidentiary record.
Justice M.L. Edwards
Released: September 19, 2017
CITATION: R. v. Mossaddad, 2017 ONSC 5520
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CAMERON ALEXANDER MOSSADDAD
Defendant
ruling on APPLICATION FOR DISSEMINATION OF CROWN DISCLOSURE
Justice M.L. Edwards
Released: September 19, 2017