Court File and Parties
COURT FILE NO.: CR-17-466 (Brampton) DATE: 2018/04/12
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
Leora Shemesh Applicant
Counsel: Michael Carnegie, for the Crown, Respondent Christine Mainville, for the Applicant Kevin Wilson and Scott Wheildon, for the Public Prosecution Service of Canada, Respondent
HEARD: March 28, April 9, 10, 11, 2018
RULING ON APPLICATION FOR PRODUCTION OF DOCUMeNTS IN THE POSSESSION OF THE Public Prosecution Service of Canada
THE HONOURABLE MR. JUSTICE G.e. TAYLOR
Introduction
[1] Leora Shemesh is charged with attempting to obstruct justice and perjury. Ms. Shemesh is a lawyer. The genesis of the charges against Ms. Shemesh was her representation of one Ha Tran who was charged with possession of a controlled substance for the purpose of trafficking. The Public Prosecution Service of Canada (“PPSC”) was the prosecuting authority.
[2] Ms. Shemesh is alleged to have told a number of PPSC counsel and defence counsel that she had a video recording depicting Cst. Ian Dann of the Peel Regional Police, stealing money during the course of conducting a search at the residence of Ha Tran. A number of trials were adjourned allegedly on the basis of the representations made by Ms. Shemesh about having a videotape of the theft by Cst. Dann. Eventually, Ms. Shemesh testified under oath in the Ontario Superior Court that she did not have a videotape showing Cst. Dann committing theft and she further denied ever telling anyone that she had such a video recording.
[3] The PPSC had an interest in obtaining a copy of the videotape and there were internal discussions, at various levels, about the issue. Stephane Marinier was and is the Associate Chief Federal Prosecutor with the PPSC who had overall responsibility with respect to the prosecution of cases in which Cst. Dann was a witness. John North and Cindy Afonso were senior or supervisory members of the PPSC who had some involvement with the case.
[4] Ms. Shemesh seeks production of documents in the possession of Mr. Marinier, Mr. North and Ms. Afonso regarding the videotape of the alleged theft by Cst. Dann and issues relating to the prosecution of Ha Tran. They are not proposed to be called by the Crown as witnesses at the trial. Production of the documents is resisted by the PPSC.
[5] I have previously dealt with an application for production of records in the possession of the Peel Regional Police. The third party records applications have been brought in advance of yet to be finalized Charter applications.
Facts
[6] In March 2010, the Major Drugs Unit of the Peel Regional Police charged Ha Tran and her husband Duc Ly with possession of controlled substances for the purpose of trafficking. The police searched their house. The case against Ha Tran was scheduled to proceed to preliminary inquiry on July 22, 2013. Robert Johnston, counsel with the PPSC was the assigned the prosecutor. He will testify that he was told by Ms. Shemesh that there was a video recording of Cst. Dann removing a large sum of cash from a safe in the Tran/Ly residence and placing the cash in his pocket. Mr. Johnston sought and obtained an adjournment of the scheduled preliminary inquiry. In the days following the adjournment of the preliminary inquiry Mr. Johnston met with Cst. Dann who acknowledged taking cash during the course of searching the Tran/Ly residence but said he turned the cash over to Ha Tran for the purpose of encouraging her to become a confidential informant.
[7] In a memo dated August 6, 2013, Mr. Johnston reported to his Team Leader, Mr. about the representation of Ms. Shemesh that she was in possession of a video recording of Cst. Dann taking cash from the residence and Cst. Dann’s acknowledgement that he had provided a sum of money located during the search of the residence to Ha Tran. He specifically requested that his memo be forwarded to Mr. Marinier. Mr. Marinier received and reviewed the memo from Mr. Johnston on or before September 4, 2013. In September, 2013, Mr. Marinier requested a list of all outstanding cases in which Cst. Dann was involved.
[8] In December 2013 and January 2014, there were meetings of counsel in the Brampton office of the PPSC at which the videotape of Cst. Dann taking the cash was discussed. Mr. Marinier was in attendance at one or both of these meetings.
[9] In February 2014, Mr. Marinier contacted Peel Regional Police to report the misconduct alleged against Cst. Dann.
[10] At trial a number of counsel with the PPSC and defence counsel will testify that they were told by Ms. Shemesh that she had a videotape of Cst. Dann stealing money from her client. One of those witnesses is David Rose who at the time was defence counsel representing Bhagat Singh. Mr. Rose was anxious to obtain a copy of the videotape which he believed was in the possession of Ms. Shemesh for use in his cross-examination of Cst. Dann, who was a Crown witness in the case against Bhagat Singh. Mr. Rose made an application to require production of the videotape in question. That application was eventually heard by Durno J. on June 13, 2014.
[11] On June 13, 2014, Ms. Shemesh was represented by counsel, Andras Schreck. At that time, Mr. Schreck advised the court that Ms. Shemesh did not have a video recording of Cst. Dann stealing money, that she had never seen any such video recording, that she did not believe such a video recording existed and that she had never represented to anyone that such a video recording existed. Ms. Shemesh testified under oath on that occasion. (I decline to comment, at this time, because I believe it will be the subject of future litigation, about the circumstances regarding how Ms. Shemesh came to give evidence under oath.)
[12] In her testimony, Ms. Shemesh confirmed under oath the statements which had previously been made by Mr. Schreck. She was also cross-examined by Lois McKenzie, counsel for the PPSC, about whether she had told specific named individuals that she had a videotape showing Cst. Dann stealing cash. Ms. Shemesh denied making such statements to anyone. It is the testimony of Ms. Shemesh given under oath at the hearing before Durno J. on June 13, 2014 which forms the subject matter of the charge of perjury.
[13] Before cross-examining Ms. Shemesh, Ms. McKenzie had a telephone conversation with Mr. Marinier for the purpose of obtaining some direction about topics to be discussed with or put to Ms. Shemesh.
[14] Ms. Afonso was present at the hearing on June 13, 2014. Before Ms. Shemesh testified, Ms. Afonso met with Jennifer Campitelli, counsel with the PPSC, who is expected to testify that Ms. Shememsh represented to her that she had a videotape of Cst. Dann stealing cash from the Tran/Ly residence. Also Ms. Afonso met with Mr. Rose and his student after the hearing. During the course of oral submissions counsel for Ms. Shemesh reduced the request for production of material from Ms. Afonso to any notes made by her on June 13, 2014 in reference to the hearing before Durno J.
[15] As of June 13, 2014, none of Ms. Shemesh, Mr. Schreck nor Durno J. were aware that Cst. Dann had admitted on at least two occasions that he had, without proper authority, taken cash found during the search of the Tran/Ly residence. A number of counsel with the PPSC were aware of the admission(s) of Cst. Dann including Mr. Marinier and Ms. McKenzie.
[16] The PPSC submitted, on this application, it could not make public Cst. Dann’s assertion that he had provided the money in question to Ha Tran in return for becoming a confidential informant or to encourage her to become a confidential informant. As of June 13, 2014, Ms. Shemesh, as counsel for Ha Tran had asserted clearly that her client was not and never had been a confidential informant and had never received any money from Cst. Dann for any purpose whatsoever. Ha Tran had also executed a Waiver of Informer Privilege.
Discussion and Analysis
[17] The following two paragraphs are taken from my previous ruling with respect to records in the possession of the Peel Regional Police.
[18] When an accused person seeks production of documents in the possession of a third party, the accused must first satisfy the trial judge that the information sought is likely to be relevant to an issue at trial or the competence of a witness to testify including the credibility of a witness. Establishing “likely relevance” has been described as a significant, but not an onerous, burden. This is referred to as “the first stage”. If the accused is successful in establishing likely relevance at the first stage, the trial judge will then examine the records to determine whether, and to what extent they should be produced to the accused. This is referred to as “the second stage”.[^1]
[19] At the first stage of the application, the accused is not required to demonstrate the precise manner in which the documents in the hands of the third-party could be used at trial as this would be an impossible Catch-22 position when the accused has not seen the documents in question.[^2]
[20] It is the position of the PPSC that Ms. Shemesh is engaged in a fishing expedition hoping to discover evidence which will form the foundation for the subsequent Charter applications which have not yet been brought. It is the position of the PPSC that production of the records sought ought only to be produced if the evidence establishes a tenable allegation of mala fides on the part of the PPSC or any of its employees.
[21] I will deal firstly with the issue of likely relevance. Within two weeks of it coming to the attention of the PPSC counsel, Mr. Johnston, Mr. Marinier became aware of the allegation of theft by Cst. Dann. His involvement continued until at least June 13, 2014. Mr. Marinier managed the cases in which Cst. Dann had some involvement.
[22] At the very heart of the perjury count is the testimony of Ms. Shemesh at the hearing before Durno J. on June 13, 2014. Shortly before Ms. McKenzie cross-examined Ms. Shemesh about who she had told she had a videotape depicting the theft by Cst. Dann, she consulted Mr. Marinier about the upcoming cross-examination.
[23] I am mindful that at least one of the reasons why production of Mr. Marinier’s records is being sought is for use as evidence in the still to be commenced Charter motions. However, to my mind, there may be other issues to which the records of Mr. Marinier will have some relevance. I find it difficult to conclude that a discussion between cross-examining counsel and a senior counsel at the PPSC about the cross examination which ultimately results in a charge of perjury being laid would not have some relevance to that count on the indictment.
[24] Similarly, notes made by Ms. Afonso on the day when Ms. Shemesh is alleged to have committed perjury would be likely relevant to that charge.
[25] Cst. Dann and the allegation that he had stolen money during the search of the Tran/Ly residence permeate many aspects of this case. Mr. Marinier was involved in managing the outstanding prosecutions in which Cst. Dann was anticipated to be a Crown witness.
[26] I conclude that the records of Mr. Marinier are therefore of likely relevance to the charges which Ms. Shemesh is facing.
[27] With respect to the submission by the PPSC that a tenable allegation of mala fides must be made out before production of documentation in its possession can be required, it is significant, in my view, that the PPSC is not the prosecuting authority in this case. Based on my review of the authorities relied upon by the PPSC[^3], all are cases in which there was evidence sought by the defence from the prosecuting authority. I was not provided with any case law specifically holding that a tenable allegation of mala fides must be established before production can be ordered from a prosecuting authority which is a third party to the case before the court. I therefore decline to make a finding that would extend the law in that direction.
[28] The emphasis of counsels’ submissions during the course of oral argument was on production from Mr. Marinier. I am not satisfied, at this time, that the threshold of likely relevance has been met with respect to the records of Mr. North. However, I am prepared to revisit that finding after my review of the records of Mr. Marinier and my decision on the second stage of the application for production from the PPSC.
Conclusion
[29] For these reasons, there will be an order that the PPSC produce for my inspection all notes, documents, correspondence and other records in any file maintained by Mr. Marinier in relation to the allegation of theft of cash by Cst. Dann from the Tran/Ly residence, the alleged representations by Ms. Shemesh about a video recording of the theft, the application which resulted in the hearing before Durno J. on June 13, 2014 and the cross examination of Ms. Shemesh on that date. There will also be an order that the PPSC produce for my inspection any notes made by Ms. Afonso on June 13, 2014 in relation to the hearing before Durno J. on that day.
[30] The application for production of records in the possession of Mr. North is dismissed without prejudice to it being renewed following production of the material, if any, which is ultimately disclosed at the second stage of the application for production from Mr. Marinier.
G.E. Taylor J.
Released: April 12, 2018
COURT FILE NO.: CR-17-466 (Brampton)
DATE: 2018/04/12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
LEORA SHEMESH
REASONS FOR JUDGMENT
G.E. Taylor J.
Released: April 12, 2018
[^1]: R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 at paras 22, 24, 30 and 137, R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at para 7 [^2]: R. v. McNeil, at para 33 [^3]: R. v. Elliott, 2003 24447, R. v. Durrette (1992), 1992 2779 (ON CA), 72 C.C.C. (3d) 421, R. v. D. N., 2004 NLCA 44, R. v. Chan, 2003 ABQB 169