Court File and Parties
COURT FILE NO.: CR-17-2516-00MO DATE: 20181004 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – C.D.R. Defendant/Respondent – and – YORK REGIONAL POLICE Applicant
Counsel: M. Rumble and K. Hutchinson, for the Crown S. Fishbayn, for the Defendant/Respondent Melissa Insanic, for the Applicant, the York Regional Police
HEARD: September 12, 2018
REASONS FOR DECISION
DE SA J.:
Overview
[1] The police have brought a certiorari application seeking to quash 5 defence subpoenas requiring officers to attend at the preliminary hearing for the purposes of discovery. The witnesses are not relevant to the question of sufficiency.
[2] The Crown takes the position that the defence is not permitted to call witnesses at a preliminary hearing purely for discovery purposes. The Crown opposes the calling of the witnesses on the basis of “relevance” given that relevance is defined at the preliminary hearing by the test for committal.
[3] The Crown and police also take the position that the real purpose of the subpoenas is to obtain disclosure. Relying on Ontario (Provincial Police) v. Mosher, 2015 ONCA 722, the Crown argues that the defence cannot use the subpoena duces tecum as a mechanism to circumvent the Stinchcombe / O’Connor regime.
[4] The defence resists the quashing of the subpoenas. Mr. Fishbayn (counsel for the defence) takes the position that he is entitled to call witnesses for discovery. The discovery function is a recognized and legitimate purpose of the preliminary hearing. According to the defence, this right cannot be interfered with by a justice hearing the evidence unless the calling of the witness is abusive, or somehow improper.
[5] Mr. Fishbayn also disputes that the subpoenas are a disguised attempt at production. According to the defence, he is simply seeking to discover witnesses, not obtain production. Requesting that they bring relevant documentation is a normal request in the context of such an examination.
[6] Having reviewed the evidence filed on the application, I order that the subpoenas as they pertain to the documents in the possession of the York Regional Police be quashed. However, the following witnesses will be required to attend for the purposes of discovery: 1) Staff Sergeant A.B. #638; 2) Inspector T.T.; 3) Staff Sergeant T.S. #1312; and 4) Mr. M.G. #5226.
[7] The reasons for my decision are outlined below.
Background Facts
[8] The Respondent is charged with a number of offences in connection with a York Regional Police investigation into child luring. The Respondent’s preliminary hearing commenced on September 12, 2018 and is scheduled to continue on October 15, 2018.
[9] On or about August 30, 2018, the Respondent served three subpoenas upon members of the York Regional Police requiring their attendance before the Ontario Court of Justice in Newmarket on September 11, 2018: Staff Sergeant A.B. #638, Sgt. C.J. #1578 and Mr. M.G. #5226. On September 7, 2018, two additional subpoenas were served on Inspector T.T., and Staff Sergeant T.S. #1312.
[10] The subpoenas require four of the named officers to bring “All documents relating to the decision to install audio recording capability in the booking areas of York Regional detachments including all emails, manuals, standing orders, letters, directives and policy documents (including costs).”
[11] In relation to Inspector T.T., the subpoena requires him to bring any documents relating to the design or goals of and implementation of “Project Raphael”.
[12] The documents/information referenced in the subpoenas had initially been sought from the Crown by defence in a letter of September 13, 2017.
[13] In a response dated September 21, 2017, the Crown indicated that she would look into it.
[14] In a letter dated October 6, 2017, Crown counsel advised that there were “no written records, memos, documents or communications relating to the decision/policy to restrict booking recording to video only”. The Crown also advised that they had no information as to when the video equipment was installed, and asked counsel to explain the relevance of the information sought.
[15] On March 20, 2018, the defence filed its statement of issues and witnesses. In the defence statement of witnesses and issues, the defence indicated that it wanted to hear from witnesses pertaining to the audio/video recording of the booking. The statement provides that defence wants to explore “whether there was evidence to support an application at trial that the policy of the York Regional Police to restrict booking procedure recordings to video and not audio, does not comport with the constitutional requirements of sections 7 and 10(a) and 10(b) of the Charter.”
[16] On August 24, 2018, the defence repeated its request to Crown counsel for any information relating to the York Regional Police decision/policy not to audio record the booking process. Given the impending preliminary hearing, the defence also contacted the York Regional Police directly seeking information relating to the records/policies/notes pertaining to “the decision not to record the audio of the booking.”
[17] In late August, Mr. Fishbayn called Jason Fraser, counsel for York Regional Police, requesting information related to the decision to install audio. In an email dated August 30, 2018, addressed to Jason Fraser and copied to Crown counsel, Mr. Fishbayn reiterated that he was seeking any information relating to the police policy/decision that resulted in a “failure to audio record interactions between the Respondent (and other arrestees) during the booking procedure at 2 District in March 2017.”
[18] In that same email, Mr. Fishbayn advised that given the delay in receiving a response, he would have to subpoena the officers directly requiring that they bring with them any relevant information. In the email, Mr. Fishbayn wrote:
Mr. Fraser:
We spoke on Friday about this matter, after superintendent Jim asked me to call you. I explained the issue I was interested in revolved around the policy that resulted in a failure to audio record interactions between my client (and other arrestees) during the booking procedure at 2 District in March 2017.
- Providing me with the standing orders, command directives and/or York Regional Police regulations that would touch upon who had the authority to determine the policies regarding evidence retention, including what evidence to retain and how long to retain it.
- Identifying the persons or persons with that authority for 2 District in March 2017.
You advised me that the policy has now changed to facilitate the audio recording of interactions between arrestees and police during the booking process in York Regional detachments. I asked you for a copy of any document, email, or letter instructing the IT support dept. to make the arrangements to enable audio recording of the booking procedures as well as identifying the person or persons responsible for that order or decision.
I asked if you could identify for me the appropriate police witnesses to subpoena to establish the person who failed to order the audio recording of the booking process as of March 2017 in 2 district detachment, the chain of command for the recent decision to enable audio recording of the booking process, as well as the IT person who could explain the technical efforts and financial costs of implementing the change.
I advised that I requested this info in relation to a matter commencing Sept 11, 2018 in Newmarket. You advised that you would look in to my requests and get back to me sometime this week. I have not heard back from you. I called your office today (Thursday) and found out you are away until September 4.
Unfortunately, I cannot wait any longer to issue the subpoenas. I will have them served, and if you are able to advise further whom should or should not be subpoenaed, I am happy to fine tune the witness list next week.
[19] On September 5, 2018, Ms. Insanic (litigation counsel for the police) emailed Mr. Fishbayn advising that they would be seeking to have the subpoenas quashed. The police took the position that the materials sought by the defence were third party records. Subject to the Crown position, the records sought would not be disclosed and the police would be bringing an urgent motion to quash the subpoenas. Ms. Insanic included a copy of an email from Staff Sergeant Skinner which explained the background regarding the information sought by Mr. Fishbayn. In that email, Staff Sergeant Skinner stated:
I am M.G.’s current supervisor and while I was not involved in the installation of audio recording equipment or in the creation of the policy leading to the installation, I have knowledge of the matter in my current role.
I have reviewed the history of this practice and can confirm that YRP did not begin recording cell block booking area audio until January 1, 2018 as stated in Chief’s Order 112-2017 which was issued on December 22, 2017. The installation of the microphones occurred at each District in the weeks leading up to this date, but recording did not commence until January 1, 2018.
I can confirm that on the date of Mr. C.D.R.’s arrest March 27, 2017, not only was there no policy in place to permit and govern the recording of booking area audio, there was also no capability to record audio in the booking areas as no microphones had yet been installed.
M.G.’s role in this matter was to provide technical advice and costing for the equipment required to record audio. He then purchased and installed the equipment as directed. He was not involved in any way with the decision to record audio or the creation of any YRP policy in relation to the recording of audio.
My understanding of Sgt. C.J.’s role is that it was limited to only drafting the previously mentioned Chief’s Order as directed.
[20] On September 5, 2018, the Crown (Ms. Rumble) also wrote to Mr. Fishbayn. Ms. Rumble also took the position that the application for production of records in possession of the police should be brought before the trial judge, in the context of a third-party records application.
[21] The Crown also took the position that it would not be calling any witness relevant to the “possible Charter argument at trial” relating to the issue of audio recording in the booking room. She maintained that a witness could only be called by the defence on a preliminary hearing where the witness’ evidence is relevant to committal to stand trial.
[22] On September 7, 2018, the police together with the Crown filed their application for certiorari seeking to quash the subpoenas.
Analysis
Can the defence subpoena a witness purely for discovery at a preliminary hearing?
[23] A justice presiding at a preliminary inquiry is a statutory court of limited jurisdiction. The authority of the justice is coextensive with that granted either expressly or by necessary implication by the Criminal Code: R. v. Doyle, [1977] 1 S.C.R. 597, at p. 602; R. v. O’Connor, [1995] 4 S.C.R. 411 at para. 168; and R. v. Girimonte (1997), 121 C.C.C. (3d) 33 (Ont. C.A.), at para. 21; Ontario (Provincial Police) v. Mosher, 2015 ONCA 722.
[24] As evident from the Criminal Code and the jurisprudence, the primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial: Criminal Code, s. 548(1); Caccamo v. The Queen, [1976] 1 S.C.R. 786. The charge screening function is directed at “protecting the accused from needless exposure to a public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process”: Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 105.
[25] Over time, the preliminary inquiry has assumed an ancillary role as a discovery mechanism, providing the accused with an early opportunity to discover the Crown’s case against him or her. See R. v. Cover (1988), 40 C.R.R. 381, 44 C.C.C. (3d) 34 (Ont. H.C.J.); Skogman, supra, at pp. 105-6; Dawson v. R.; R. v. Richards.
[26] In many cases, the preliminary inquiry is used by the Crown to explore their own case, and/or is used by the defence to explore possible Charter defences in advance of trial. The Criminal Code provisions contemplate a certain measure of flexibility in this regard.
[27] Section 536.3 contemplates the Crown and the accused providing a statement of issues and witnesses required at the preliminary hearing. Nothing in this provision limits the statement of issues to matters germane to the question of committal.
[28] Section 537(1)(g) provides that a justice may receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them.
[29] Section 537(1)(i) provides that a justice may regulate the course of the inquiry in any way that appears to the justice to be consistent with the Act and that, unless the justice is satisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of fact or agreement recorded under subsection 536.4(2) or agreement made under section 536.
[30] Section 541(1) also provides that after the evidence of the prosecution is heard, the justice shall, subject to this section, hear the witnesses called by the accused.
[31] A failure to recognize the ancillary role of the preliminary hearing has been held to amount to a jurisdictional error. The British Columbia Court of Appeal in R. v. Rao, 2012 BCCA 275, specifically recognized the accused’s right under s. 541(1) to call witnesses related to issues other than committal. At paras. 97-98, the Court stated:
There is nothing in any of the authorities that is binding on this Court which justifies the conclusion that s. 541(5) was to be read as precluding the calling of witnesses to further the discovery function of the preliminary inquiry. Rather, such cases as Lena, Earhart and P.M., support the conclusion that the discovery function is alive and continues to serve its historical function, albeit in a more streamlined form.
In my view, therefore, the preliminary inquiry judge erred in her interpretation of s. 541(5) by restricting the words “relevant to the inquiry” as referring only to the committal aspect of the inquiry, and, like the preliminary judge in Lena, she committed jurisdictional error in refusing to allow Mr. Rao to call witnesses pursuant to that section. It follows that the Supreme Court judge erred in failing to find that the preliminary inquiry judge had exceeded her jurisdiction in this regard. [^1]
[32] In my view, the jurisprudence makes clear that the defence can use the preliminary inquiry for the purposes of discovery. If the Crown’s position were correct, R. v. Dawson, would have no place in the jurisprudence. While the Crown suggests that Dawson and search warrants are in a category of their own, I see no principled basis for this distinction. A Dawson hearing is specifically directed at exploring Charter issues at the preliminary hearing.
[33] That said, while the defence is entitled to explore Charter issues at the preliminary hearing, and can call witnesses for this purpose, this does not mean that right is absolute. While the accused is entitled to call witnesses and cross-examine Crown witnesses for the purposes of discovery, the discovery aspect remains incidental to the central mandate of the preliminary inquiry as clearly prescribed by the Criminal Code; that is, the determination of whether “there is sufficient evidence to put the accused on trial” (s. 548(1)(a)). As explained in Girimonte, supra:
The fact that the preliminary inquiry may serve the discovery interests of the defence does not alter the purpose of the preliminary inquiry or the singular nature of the justice’s function at a preliminary inquiry. Estey J. does not describe discovery of the Crown’s case as a purpose of the preliminary inquiry, but rather acknowledges that defence may use it to that end. In my view, discovery is an incidental benefit to the defence flowing from a process which requires the Crown to establish a case for committal for trial by means of viva voce evidence at a proceeding in which the defence is given the statutory right to cross-examine witnesses called by the Crown and to call its own witnesses. [Emphasis added]
[34] Contrary to the defence position, the preliminary hearing judge does have jurisdiction to limit the calling of evidence or cross-examination which is not germane to the committal function (the question of sufficiency). [^2] As explained in R. v. George (C.A.):
I would not take from the reasons of Campbell J. that he considered the “right” to discovery to be to complete discovery without interference of any kind by the presiding judge. In this respect it should be remembered that there are other forms of discovery to supplement that on the preliminary hearing and it would be intolerable if an appeal in the form of judicial review was available from every unanswered question.
[35] To suggest that a preliminary hearing justice has “no authority” to limit the defence from calling evidence would undermine the court’s ability to control its own process and carry out its statutory mandate. The powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime. [^3] Conducting a preliminary hearing necessarily entails “controlling” the proceeding, focussing the issues, and limiting the calling of evidence not material to the issues to be decided. [^4]
[36] “Reasonable” discovery is permitted. Unreasonable or protracted discovery unrelated to the question of committal is properly limited. The assessment in this regard is properly left to the justice hearing the matter. [^5] Obviously, Jordan principles should be taken into account by the justice in making the assessment.
[37] In light of R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27, a preliminary hearing justice is not only permitted, but obliged to ensure that the hearing is conducted in a reasonably efficient manner. [^6] The importance that judge’s play in ensuring matters remain Jordan compliant was emphasized by the Supreme Court in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 65. I take the Court’s comments to apply in a similar vein to justices conducting a preliminary hearing. The Court explained at paras. 38-39:
In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.
Trial judges should also be active in suggesting ways to improve efficiency in the conduct of legitimate applications and motions, such as proceeding on a documentary record alone. This responsibility is shared with counsel. [Emphasis added]
Are the subpoenas in this case a disguised attempt to obtain production?
[38] The decision in Mosher is clear. The defence cannot use the subpoena duces tecum as a means to obtain disclosure and/or as a method to circumvent the Stinchcombe/O’Connor regime. As Justice Watt explained in Mosher at paras. 115-117:
First, as I explained, a subpoena duces tecum does two things. It compels the attendance of a person who has material evidence to give at a time and place specified. And it compels that person to bring with him or her anything that she or he has in his or her possession or under his or her control relating to the subject-matter of the proceedings. It does not require or authorize production of the documents to a party.
Second, here the irresistible inference is that the purpose of the subpoena duces tecum was not to obtain the testimony of the witness but to obtain disclosure of the specific documents each was requested to bring along. Thus the colourable use of the subpoena was for the remedy of production. This purpose appears the more obvious as the preliminary inquiry judge made it clear that he would permit the affected police forces to make submissions about privilege on the return of the subpoenas.
The appellants were, in effect, trying to do indirectly through a subpoena what they could not do directly through either of the Stinchcombe or O’Connor regimes. The jurisdiction to grant the remedy of production lies with the trial judge, not the preliminary inquiry justice. While the preliminary inquiry justice has the jurisdiction to issue subpoenas duces tecum, they cannot be used by parties as a tool for circumventing this established jurisdictional limit. [Emphasis added]
[39] According to the defence, the subpoenas were properly issued with a view to having the witnesses bring any documents they would require to testify. However, the subpoenas are directed at obtaining documents that are very general in nature, including: all emails, manuals, standing orders, letters, directives and policy documents (including costs) relating to the decision made by police not to audio record the booking.
[40] The defence argues that the police need not “disclose” the documents if the Crown is opposed. He is merely requiring the police bring the documents to assist with their evidence. However, the subpoenas in their current form require the collection and review of a wide range of documents that would not likely be in the immediate possession of the officers subpoenaed. Their collection/disclosure will likely require input by the Crown and legal counsel for the police. To comply with the subpoena’s terms would no doubt cause delay in the scheduled preliminary hearing date and may require representations of the various parties at the hearing on the issue. When considered in context, the subpoenas clearly engage the Stinchcombe / O’Connor regimes.
[41] I agree with the Crown that the subpoenas have been used by the defence to obtain production from the police. The general nature of the records sought by the defence makes this evident, particularly when considered in the context of the preceding requests by defence for disclosure.
[42] The subpoenas will be quashed to the extent that they require the gathering and/or preparation of documentation.
[43] While the police will not be required to bring the documentation sought to the preliminary hearing, the Crown should make efforts to obtain any additional information necessary to comply with its disclosure obligations. To the extent any additional information/documentation sought by the defence is available and relevant, it should be disclosed directly by the Crown as soon as possible. As explained in R. v. McNeil, [2009] 1 SCR 66, 2009 SCC 3 at para. 59 in the context of police misconduct records:
I agree that it is “neither efficient nor justified” to leave the entire question of access to police records to be determined in the context of the O’Connor regime for third party production. Indeed, as discussed earlier, the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown without prompting. …
[44] In my view, the letter from Staff Sergeant T.S. goes a long way towards providing the defence with any “relevant” information on the issue. I expect his testimony may assist with clarifying any other points that remain unclear for the defence. The only additional documentation likely remaining is the Chief’s Order 112-2017 which was issued on December 22, 2017.
[45] Staff Sergeant T.S.’s letter is clear in explaining that there was no “policy” regarding the decision not to audio record the booking. The equipment was not in place at the time. It may be that the decision to install audio recording devices in the booking area was the result of Mr. Fishbayn’s repeated requests for information on this point. However, I expect this can be answered by means of a simple question to Staff Sergeant T.S. without the need to get all the emails, correspondence, and communications from the police regarding this issue. In my view, the defence request for these materials is nothing other than a fishing expedition.
[46] Regardless, given the nature of the information/documentation sought, its disclosure should not delay the continuance and completion of the preliminary hearing on the scheduled dates. The preliminary hearing should be completed as scheduled whether or not the documentation has been disclosed.
Disposition
[47] I would direct that the following witnesses attend and be made available for discovery to the extent permitted by the justice hearing the matter: 1) Staff Sergeant A.B. #638; 2) Inspector T.T.; 3) Staff Sergeant T.S. #1312; and 4) Mr. M.G. #5226.
[48] Beyond these witnesses, and to the extent the subpoenas require documentation and records to be gathered and brought to the preliminary hearing, the subpoenas are quashed.
[49] The Crown should produce any remaining documentation/information it deems relevant to the requests made by the defence as soon as possible. However, the disclosure of any additional documents is not to delay the completion of the preliminary hearing on the scheduled dates. The hearing is to be completed on the dates scheduled for hearing.
[50] I thank counsel for their assistance.
Justice C.F. de Sa
Released: October 4, 2018
Footnotes
[^1]: See also R. v. Dawson.
[^2]: A justice may receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them - section 537(1)(g) of the Criminal Code; A justice may regulate the course of the inquiry in any way that appears to the justice to be consistent with the Act - section 537(1)(i) of the Criminal Code. It should also be remembered that there is no constitutional right to a preliminary hearing. While errors in the exercise of these powers may amount to errors “within” jurisdiction, they would not engage section 7 of the Charter.
[^3]: See ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51. R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19.
[^4]: No doubt, in many cases, the primary basis for the defence election of a preliminary hearing will be discovery of witnesses relevant to Charter breaches. In many cases, the parties will consent to the justice being absent for such discoveries if the committal is not in issue.
[^5]: R. v. Nova Scotia (Provincial Court Judge), 2007 NSSC 255, 2007 CarswellNS 383.
[^6]: Section 536.4 of the Criminal Code also contemplates the justice at a preliminary hearing helping the parties to focus the issues. There is flexibility built into the preliminary hearing provisions which contemplates the Crown and defence working together with the justice to narrow the issues, and properly focus the hearing.