Court File and Parties

COURT FILE NO.: CRIMJ 1216-18 DATE: 2019 03 06 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN C. Coughlin for the Crown

– and –

SHANE TROUGHT J. Hechter for the Defendant J. Orabovic for Peel Regional Police G. Evans for the RCMP

HEARD: February 20 and 21, 2019

RULING ON DISCLOSURE MOTIONS

RICCHETTI, J.

THE CHARGES

[1] Mr. Trought is charged with: possession of a loaded restricted firearm; unlicensed possession of firearm; possession of firearm with a serial number altered, defaced or removed; possession of a restricted firearm while prohibited; and two counts of possession of cocaine for the purpose of trafficking.

[2] On May 2, 2017, the Peel Regional Police (“PRP”) attended at Mr. Trought’s condominium unit at Apartment 1008, 2545 Erin Centre Boulevard (“Condo”) to execute a Toronto Police arrest warrant for Mr. Trought. The PRP hoped to speak to Mr. Trought, after his arrest on the Toronto warrant, regarding a homicide which had taken place at a Brampton lounge on April 15, 2017.

[3] When the PRP knocked on the door to the Condo, there was a significant delay in Mr. Trought answering the door. The police heard a sliding door open, the rush of wind and were concerned that illegal items were being discarded from the Condo. Mr. Trought eventually came to the door and the police executed the Toronto arrest warrant.

[4] With the permission of the owner of the adjacent condo (Unit 1009), the PRP discovered, in a package on the balcony of the Unit 1009, just past the metal separation panel of the Condo. The package contained the firearm and some drugs which are the subject of some of these charges.

[5] The Crown theory is that, between the time of the PRP announcement of their arrival at the Condo and the time Mr. Trought opened the door, Mr. Trought discarded the firearm and drugs by going to the balcony and putting the package, under the metal separation panel, onto the balcony area of Unit 1009.

[6] The PRP subsequently obtained a search warrant and searched the Condo.

[7] The owner of Unit 1009 condo denies knowing of or possessing the firearm and drugs found on her balcony.

[8] There is no dispute that Mr. Trought was the only occupant of the Condo at that time of his arrest.

THE DEFENCE DISCLOSURE APPLICATION

[9] The Defence seeks the disclosure of certain records from PRP, the Royal Canadian Mounted Police (“RCMP”) and from the Crown.

[10] The Defence submits that the disclosure is necessary to show that PRP officers:

(a) Entered and searched the Condo at the time of Mr. Trought’s arrest without authority (prior to obtaining and executing the subsequent search warrant);

(b) Falsified notes and coordinated a cover up of the illegal entry and search of the Condo; and

(c) Lied at the Preliminary Hearing regarding the illegal search.

(the “Credibility Issues”)

[11] The Defence concedes that the disclosure sought does not go to its ability to defend on the substantive offences charged but, rather, goes to the Credibility Issues. The Defence submits the disclosure would assist the Defence cross-examination of the police officers on the Charter Applications to establish that Mr. Trought’s Charter rights were breached.

[12] Prior to the hearing of the Disclosure Application, the Defence filed submissions to explain the relevance of the disclosure it seeks (“Sealed Submissions”). The Sealed Submissions outlined how he will seek to challenge the credibility of the police officers (to some extent) and seeks an order that:

(a) The Sealed Submissions be sealed by court order; and

(b) The Crown and other parties be enjoined from “revealing its contents to, and/or discussing the issues raised” in the submissions with witnesses to be called on the Defence Charter Applications.

THE SEALING/NON-COMMUNICATION APPLICATION

[13] In essence, the Sealed Submissions, explains Defence theories (including references to some of the existing disclosure), seeking to point out possible inconsistencies in police notes, prior testimony and other disclosure to establish that the police officers searched the Condo prior to the execution of the search warrant, covered up doing so and then lied about it under oath.

[14] The Defence fails to point to any authority where such a sealing/non-communication order has been granted. The Criminal Code does not provide any specific jurisdiction to grant the order sought, unlike specific provisions which permit the sealing of such documents as an Information to Obtain. The only authority the court would have to make the order sought is its common law jurisdiction to control its process.

[15] The Defence relies on the following passage from R. v. Paris, (2006) 208 O.A.C. 285 (CA)

[24] Lastly it has been argued that Christensen’s affidavit should be discounted entirely and he found to be not credible. It seems that the Crown supplied Christensen with a copy of the appellant’s factum which was going to be used to argue the Garofoli application. The factum was not filed on this appeal but I am told it detailed the alleged factual errors in Christensen’s affidavit and gave him a “heads up” as it were to the thrust of the appellants’ proposed cross-examination. The appellants argue it was improper for Crown counsel to provide the main witness for the Crown with the factum.

[25] It would have been preferable had Crown counsel not supplied the factum to the main witness, particularly on the facts here where it would be argued that the factual inconsistencies undermined the credibility of the witness.

[26] I would decline, however, to make a blanket ruling of the type requested by counsel for the appellants that it is never appropriate for counsel to supply a witness with the opposite party’s factum.

[27] Each case must be considered on its own facts and it may be that there are circumstances where such conduct is entirely appropriate.

[16] The other authorities relied on by the Defence do not assist - R. v. Mahmood, 2011 ONCA 693 and R. v. Tran, 2015 ONSC 5607.

Witness Preparation

[17] The Rules of Professional Conduct provide:

5.1-3 When acting as a prosecutor, a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

5.3-1 Subject to the rules on communication with a represented party set out in rules 7.2-4 to 7.2-8.2, a lawyer may seek information from any potential witness, whether under subpoena or not, but the lawyer shall disclose the lawyer's interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way.

[18] Crown counsel’s preparation of witnesses for trial is not only appropriate but also necessary for the efficient administration of justice and the truth finding process. See R. v. Liard and Lasota, 2013 ONSC 5457:

[424] It is not just proper for Crown counsel to interview witnesses prior to their testifying: it is necessary that these meetings take place. Witnesses are often not familiar with courtroom procedures and the rules of evidence. Unprepared witnesses may blurt out things that should not be said in front of the jury. They may be too talkative, and less than responsive to the questions they are asked. Testifying is an unusual, and even intimidating experience for many witnesses. Counsel owes it to the witness and to the court to prepare witnesses carefully.

[19] I reject the Defence submission that the police witnesses, who will testify at the Charter Applications, are not lay witnesses, have already given evidence at the Preliminary Hearing and, as such, do not need further witness preparation by the Crown. There are many areas that the Crown counsel might choose and need to prepare the police witnesses for the Charter Applications and trial including: a review of all preliminary hearing evidence; their notes; all disclosure; review any subsequent investigation; and review issues and facts relevant to the Charter Applications. No doubt, some of the areas likely to be covered, include areas the Defence seeks to enjoin the Crown counsel from discussing with the police witnesses.

[20] In R. v. Elliott, (2003), 179 OAC 219 (ON CA), the Court of Appeal dealt with the situation where the trial judge had made an order prohibiting the Crown from discussing certain areas with a Crown counsel who had been removed from the trial. The Court of Appeal was critical of the non-communication order made because it was based on “suspicion” that the process would be tainted or evidence fabricated:

[122] The trial judge made various orders prohibiting Crown counsel from discussing the case with their predecessors who had been removed from the case because of the rulings of the trial judge that they testify at the proceedings. These orders frustrated attempts by the new counsel to prepare for the continuing motions and for the trial proper. They seemed to have been made because of the trial judge’s suspicion that the former Crown counsel would somehow taint the new counsel or would fabricate evidence. These suspicions were unfounded. Crown counsel are officers of the court. They are expected to conduct themselves honourably and in accordance with the Rules of Professional Conduct. The trial judge had no basis for assuming that Crown counsel would act otherwise and his non-communication orders were ill advised.

(emphasis added)

The Onus

[21] I reject the Defence submission that the Crown should bear the onus of establishing prejudice if the sealing/non-communication order is made.

[22] First, such an approach appears to be inconsistent with the approach in Elliott where the Court of Appeal appeared to require a basis for making such an order to rebut the presumption that the Crown counsel would comply with its professional duties.

[23] In my view, the onus is properly on the Defence to establish, on the balance of probabilities: why it was necessary to disclose such information at this time; the jurisdiction to make such an order; and why there is a need for granting an extraordinary order sought to avoid trial unfairness such as the tainting of witnesses or fabrication of evidence.

Analysis

[24] Without determining whether this court has or does not have the jurisdiction to make the sealing/non-communication order, I decline to make the orders sought for the following reasons.

The Defence has failed to meet its onus that such an order is necessary

[25] Given the Rules of Professional Conduct and, as stated in Elliott, there is a presumption that Crown counsel will not use the Sealed Submission to fabricate evidence or cause a witness to do anything but tell the truth at the Charter Applications. This presumption has not been displaced by the Defence in this case.

[26] The Defence submission that, “if the officers have been willing to falsify notes and lie under oath” are provided the information in the Sealed Submission, it would frustrate a proper cross-examination is circular reasoning. It would deny the proper preparation by the Crown based on an assumption the falsification of notes and lying has occurred, neither of which has been established nor apparent from the “evidence” put forward by the Defence. The Crown counsel continues to have a professional responsibility and as an officer of the court to ensure that the police officers give truthful evidence at trial.

[27] It should also be remembered that the evidence the police officers gave at the Preliminary Hearing was under oath. The Defence has the notes of the police officers. The recollection, notes and events of Mr. Trought’s arrest and the subsequent search by the PRP police officers was the subject of their testimony at the Preliminary Hearing. The police officers will be cross examined yet again.

The Order would impair the Crown’s obligation to the witnesses and this court

[28] In the normal course, the Crown is entitled to and must prepare the police officers for giving evidence on the Charter Applications – both for their examination in chief and cross-examination. The non-communication order would seriously impair, and likely prevent, the Crown counsel from meeting his/her’s professional obligations. Failure to do so would be a serious shortcoming, potentially negligent, and a failure of the Crown counsel’s obligations to the witnesses, the Crown and the court.

[29] I say likely prevent the proper preparation of witnesses, since Crown counsel would have good reason to be very concerned he/she might, during the witness preparation, breach the non-communication order directly or indirectly by covering areas remotely or potentially covered by the Sealed Submissions, even if those were areas that the Crown counsel would have covered had it not received the Sealed Submissions.

[30] The Defence chose to disclose some of its cross examination areas it seeks for the Charter Applications. There is something inherently wrong where one party, in an adversarial system, says to the other in advance, “this is my focus of my questions” and then prejudices the other side from properly preparing its witnesses, particularly where the focus of the questions are typical areas of witness preparation and are likely (almost certainly in my view) areas that the Crown counsel would have covered with the witnesses during witness preparation. Absent a clear and compelling reason to do so to avoid trial unfairness, courts should be loath to intrude on matters between counsel and their witnesses.

[31] I see no cogent reason why the Crown does not have to or should not have the ability to prepare the police officers for giving their evidence on the Charter Applications even where such preparation may cover some of the areas in the Sealed Submissions.

Conclusion

[32] The Sealing/Non-Communication Application is dismissed.

THE DISCLOSURE APPLICATION

[33] Fortunately, much of the disclosure requested has been resolved.

[34] The remaining disclosure relates to CPIC audits (essentially information on the CPIC database) relating to:

(a) Certain License Plates;

(b) Mr. Trought; and

(c) Persons associated with Mr. Trought.

[35] The Defence seeks disclosure of CPIC (Canadian Police Information Centre) audits to “show activity which transpired on this database in a specified period and the results of checks conducted”. The Defence submits that the disclosure will show who the police believed was in the Condo at the time of the arrest – which then relates back to the Credibility Issues.

[36] The date range proposed by the Defence is from April 15, 2017 to May 5, 2017 (“Time Period”). The Defence points to April 15, 2017, the date of the homicide at the lounge, as the earliest date of his inquiry and May 5, 2017, the day after two males attended at the Condo storage unit to attempt to retrieve items.

[37] The Crown submits that the PRP cannot obtain these CPIC audits from the RCMP and that a court order for third party disclosure is necessary. The RCMP and Crown oppose disclosure of the CPIC audits.

[38] It is unknown whether any such information was posted on CPIC or whether the police officers accessed any information on CPIC.

[39] CPIC is a “bulletin board like form of inter-officer communications, as well as an investigative tool” used by police forces across Canada, including the PRP. Police officers can post to CPIC and can access information from CPIC for such matters as officer safety, outstanding warrants, known associates and other such information. (“CPIC Posting/Accessed Information”)

[40] Once again this disclosure is sought by the Defence to establish the Credibility Issues for use at the Charter Application. While not prominent in the Defence Disclosure Application, there is a suggestion that this disclosure may also assist in establishing a third party suspect – i.e. that the firearm and drugs were not in the possession of Mr. Trought.

[41] The RCMP and Crown oppose the disclosure of the CPIC audits submitting:

(a) It is inappropriate to order disclosure of CPIC audits;

(b) This is third party disclosure; and

(c) The Defence has failed to show the disclosure is likely relevant.

The License Plates

[42] The Defence submits that Constable Mortiboys recorded a number of license plates which had come to the Condo on May 1, 2017. The note made by Constable Mortiboys no longer exists (“License Plates”). However, the Defence has the license plate numbers. The Defence now seeks a CPIC audit for each of the License Plates for the Time Period.

[43] The Defence submits that if Constable Mortiboys did any CPIC checks, then such checks are clearly fruits of the investigation. However, the Defence goes on to state that if CPIC checks were not done, then such information goes to the “sufficiency of the investigation”.

[44] The RCMP submits that the License Plates, and whether Constable Mortiboys followed up (and if he did, what he accessed) can be obtained from Constable Mortiboys during his evidence at the Charter Application. Further, the RCMP submits the disclosure sought is overly broad and speculative.

CPIC Audits

[45] The Defence acknowledges that the RCMP is not the investigating force in this case. The Defence seeks CPIC audits, as well as all inquiries and postings during the Time Period pertaining to the following persons:

Mr. Trought

[46] The Defence seeks the disclosure of CPIC audits by the PRP and any PRP CPIC postings for Mr. Trought for the Time Period.

Royden Reis

[47] The Defence seeks the disclosure of CPIC audits and PRP CPIC posting for Mr. Royden Reis for the Time Period.

[48] Mr. Royden Reis’ mail was found in the Condo at the time of Mr. Trought’s arrest and his fingerprint was found on one of the items located on the Unit 1009 balcony. As a result, the Defence submits it may allege that Mr. Reis is a third party suspect at trial. At this stage and on this record, there is nothing more than speculation Mr. Reis may be the owner/possessor of the firearm and drugs.

Mr. Velasquez, Mr. Randy White, Mr. Tryden Reis

[49] Neither Mr. Velasquez, Mr. White nor Mr. Tryden Reis have been served with this Disclosure Application.

[50] Mr. Velazquez and Mr. White were seen at the Condo on April 15, 2017.

[51] Mr. Tryden Reis was seen at the Condo on April 15, 2017 and returning 2 days after Mr. Trought’s arrest attempting to get into the storage unit of Unit 1008.

[52] The Defence seeks the disclosure of CPIC audits and related postings for Mr. Velasquez, Mr. White and Mr. Tryden Reis for the Time Period.

[53] There is no evidence on this motion suggesting that any of these persons were the owner/possessor of the firearm and drugs.

THE LAW

Stinchcombe or O’Connor Disclosure

[54] There is dispute whether the disclosure sought is subject to first party disclosure ( Stinchcombe ) or third party disclosure ( O’Connor ).

Stinchcombe Disclosure

[55] Under Stinchcombe, the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory, to relating to a person case. This duty to disclose is triggered upon request without recourse to a court. See R. v. McNeil, [2009] 1 SCR 66, 2009 SCC 3 at para. 17. For the purposes of Stinchcombe disclosure, the term “the Crown” refers only to the prosecuting Crown. All other Crown entities, including the police, are third parties for the purpose of disclosure. See R. v. Quesnelle, [2014] 2 SCR 390, 2014 SCC 46 at para. 11 and McNeil at para. 22.

[56] The Stinchcombe disclosure is commonly described as the “fruits of the investigation”. The term “fruits of the investigation” refers to police investigative files, not to operational records or background information. In other words, the term describes information generated or acquired during or as a result of the specific investigation into the charges against the accused. See McNeil at para. 23. Relevant information includes, not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence. See McNeil at para. 17 and Stinchcombe at pp. 343-44. The fruits of the investigation must relate to the investigation involving the accused. The Court of Appeal in R. v. Jackson, 2015 ONCA 832 at paras. 69, 92-95 clarified that “fruits of the investigation” refers to “information acquired by means and in consequences of that investigation”. See also R. v. Iqbal, 2018 ONSC 2293 at paras. 21 and 22.

[57] In addition to Stinchcombe requiring the disclosure of the fruits of the investigation, the police must provide to the Crown (for disclosure to the accused), those documents which are obviously relevant to the accused’s ability to meet the Crown’s case, raise a defence or otherwise consider the conduct of the defence. See R. v. Gubbins, 2018 SCC 44 at para. 23. The Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant, the relevance of such documentation being obvious without examination.

Third Party Disclosure

[58] All other disclosure is third party disclosure.

[59] The third party disclosure scheme involves two steps or stages. It is initiated by service of a subpoena and an application. The application sets out the grounds upon which production is sought. The supporting material seeks to establish the relevance of the material to an issue at trial such as:

i. the unfolding of the narrative; ii. the credibility of a witness; iii. the reliability of other evidence; or iv. the competence of a witness to testify.

See O’Connor at para. 134 and McNeil at paras. 27, 33.

[60] The burden is on the accused to show that the documents sought are “likely relevant” on this first stage. Where the accused discharges this burden, the judge will, on the second stage, examine the documents to determine, whether and to what extent, it should be produced to the accused.

[61] What is “likely relevant” was described in Gubbins at para. 26:

[26] Information will be “likely relevant” where there is “a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify”: O’Connor, at para. 22 (emphasis deleted). The “likely relevant” threshold has been described as significant, but not onerous: O’Connor, at para. 24; McNeil, at para. 29. The reason that the relevance threshold is “significant” is to allow the courts to act as gatekeepers, preventing “speculative, fanciful, disruptive, unmeritorious, obstructive, and time consuming” requests for production: O’Connor, at para. 24, quoting R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 32.

[62] Where an accused asserts that a record is relevant to credibility issues, the mere assertion is not enough. The accused must point to some “case specific evidence or information” to justify that assertion, that is – something that is not readily available to the defence or has potential impeachment value. See. R. v. Batt, (2000), 49 O.R. (3d) 321 (C.A.) at para 75.

[63] Where it is uncertain whether or not the records are likely relevant, production should be ordered for review by the issuing judge. As stated by the Supreme Court in R. v. Mills, (1999), 3 S.C.R. 668, "[i]n borderline cases, the judge should err on the side of production to the court". Records can, in addition, be edited to remove irrelevant information and protect the privacy interest of the complainant and third parties.

[64] As stated above, where an accused has demonstrated likely relevance, the documents are produced at the second stage to the judge for examination and determination of whether, and to what extent, the documents should be disclosed to the defence. This step involves a determination of actual (rather than likely) relevance and a consideration of competing interests. See McNeil at para. 39; and Gubbins at para. 27. The interests of justice are assessed during this second step with the following factors in mind:

(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 in question; (iii) the nature and extent of the reasonable expectation of privacy vested in that record; (iv) whether production of the record would be premised upon any discriminatory belief or bias; and (v) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record in question. 11 [footnote omitted]

See R v O'Connor, [1995] 4 S.C.R. 411 at paras. 22, 30-33, 134-163; R. v. McNeil, 2009 SCC 3 at paras. 11, 33-35.

Which Disclosure applies?

[65] To determine which disclosure regime controls a disclosure dispute, a court should pose and answer two questions:

(a) Is the information sought in the possession or control of the prosecuting Crown?

(b) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown?

[66] Where the answer to either question is yes, Stinchcombe disclosure applies. The answer to the second question will be “yes” if the information sought qualifies as part of the “fruits of the investigation” or as “obviously relevant”. See Gubbins at para. 33. Otherwise, third party disclosure applies.

Fishing Expeditions

[67] A word of caution. In Gubbins a para. 29, the Supreme Court stated:

.....In both instances, the purpose is “[to protect] an accused person’s right to make full answer and defence, while at the same time recognizing the need to place limits on disclosure when required”: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 115. Such limits include avoiding fishing expeditions.

CPIC Audits

[68] There is no authority that has specifically dealt with the disclosure of CPIC records.

[69] In the pre-trial application in R. v. Elkins, 2017 BCSC 284, Sewell J, dealt with an application where the accused sought disclosure of PIRS/PRIME (Police Records Information Management Environment) records regarding the victim. Sewell J., at para 29, stated:

29 Thus it would appear that if the police access a database as part of the investigation and uncover relevant information, that information should be producible under Stinchcombe if it is relevant. It is obvious that a certain amount of judgment must be exercised by the police in deciding whether information contained in such databases is producible. However, in my view the mere fact that the police access such databases does not make the information contained in them producible as first party information.

[70] Justice Sewell found that the PRIME records had not been accessed as part of the investigation except after the request by defence counsel. The disclosure sought was third party disclosure. The victim had not been given notice. Accordingly, Sewell J. dismissed the application.

[71] Justice Bowden was the trial judge in Elkins. The accused, once again, applied for disclosure of the PRIME records for the victim and the person he lived with. See R. v Elkins, 2017 BCSC 2554. During the trial the police officer gave evidence she had accessed the PRIME system in connection with the investigation essentially to check for officer safety and outstanding warrants. The disclosure application was renewed for disclosure of the PRIME records for the victim and person he lived with. The primary submission of the Defence was that the credibility of the victim and victim’s partner were central to the case pointing to certain inconsistencies in prior testimony and that the disclosure was, as a result of the access by the police officer, Stinchcombe disclosure.

[72] Justice Bowden found that the records were not part of the fruits of the investigation and determined that the third party disclosure regime applied. At para. 14, Bowden J. Stated:

14 In my view, the records of Mr. Korkowski were not gathered by the police in furtherance of the investigation of the offences charged. Rather, the records were accessed as a matter of course to determine if an issue of officer safety was present or whether a warrant was outstanding for Mr. Korkowski. There is no evidence indicating that the purpose of accessing the records went beyond a routine background check or that the records were in any way relevant to the charges. There is no evidence that the records relate to matters that the Crown intended to adduce in evidence against the accused. There was no reference to the records in the Report to Crown Counsel by the RCMP. Accordingly, it is my view that the accused must rely on R. v. O'Connor as a basis for the disclosure of the records sought.....

[73] Dealing with the submission that the disclosure was relevant to the credibility of the victim and victim’s partner, the court concluded:

[23] Here, the accused has referred to three examples of credibility concerns regarding Mr. Korkowski and Ms. Jimmie as a basis for the production of the records. In my view, it is not reasonable to assume that the records sought will be relevant to any of those examples. The applicant has not established some basis to show that there is likely information in the records which would relate to credibility on a particular material issue at trial. This leaves the applicant in the position of asserting that the records sought may be relevant to credibility at large in respect of Mr. Korkowski and Ms. Jimmie. In my view, that is not sufficient to justify production. If credibility at large was sufficient to found an order for disclosure, even with respect to important witnesses in a criminal trial, it would likely result in an increased number of applications of this nature, thus exacerbating the problems of delay identified by the Supreme Court of Canada in R. v. Cody, 2017 SCC 31.

[74] Justice Bowden dismissed the disclosure application.

APPLICATION TO THE DISCLOSURE SOUGHT

The RCMP Policy Submission

[75] The RCMP submits that the disclosure of the CPIC audits should be dismissed because:

(a) The CPIC system is not necessarily accurate, much like a bulletin board;

(b) The CPIC information is highly confidential, which is necessary to maintain its integrity and to encourage its continued use by police forces;

(c) The CPIC contains confidential and private information concerning third parties; and

(d) Responding to CPIC audits would be time consuming diverting necessary police resources from police investigative work.

[76] I do not accept these as valid reasons for denying disclosure of CPIC audits.

[77] First, the information on CPIC, whether accurate or not, is routinely relied on by police forces. It is disingenuous to make the information on CPIC available to police forces as a tool to be utilized/relied on by police officers but suggest that the data is not accurate enough for disclosure to an accused.

[78] Second, CPIC, while containing confidential information, is widely used and disclosed. CPIC reports are also often used by officers for many purposes including search warrants.

[79] Third, the private and confidential information of third parties can easily be dealt with through review and redaction.

[80] Fourth, there is no evidence as to the amount of time it takes to respond to CPIC audit requests generally, or this request in particular.

[81] It would impair an accused’s right to full answer and defence, to permit police officers to post and access information on CPIC related to the investigation but to deny that information to the accused unless and until the Defence can establish likely relevance in a third party disclosure application. Of course, relevance and privacy interests of third parties in the database remain a potential limitation on disclosure to the accused. As described in Elliott, mere accessing the CPIC system does not necessarily mean the information posted (i.e. the name(s)) or the information obtained is relevant to disclosure.

[82] I am satisfied there must be a principled reason to determine whether Stinchcombe or O'Connor disclosure apply to grant or deny disclosure of CPIC audits.

Relevancy and Speculation in the Broad Disclosure Request

[83] The Defence disclosure sought is overly broad with, largely, no real material connection to the charges Mr. Trought faces on the investigation of the charges or any demonstrable connection to the Credibility Issues or possible third party suspect application which might be brought in the future.

[84] It is not, on the Credibility Issues, sufficient that the Defence seeks disclosure because it might assist to show that the police officers are lying. Unless the Defence can show some relevancy between the disclosure sought with the Credibility Issues or a possible third party suspect (having agreed that the disclosure sought is not relevant to the substantive charges), it becomes a fishing expedition.

[85] One example of this overly broad request is demonstrated by the Time Period. The Defence attempts to connect the investigation of these charges (firearm possession and drug possession charges) to persons known to have associated with Mr. Trought on the night of the lounge shooting on April 15, 2017 even though the only evidence connecting Mr. Trought and three other men is that they were at the lounge at about the same time of the shooting, they left together and returned to Mr. Trought’s Condo 2 ½ weeks prior to the alleged possession of the firearm and drugs. On the record before me, there is no other connection between these persons and Mr. Trought. When pressed on this issue during submissions, the Defence submitted that disclosure going this far back would inform the PRP police’s belief when they went to arrest Mr. Trought on May 2, 2017. I fail to see how this sought after disclosure (a connection with third parties two and a half weeks earlier) adds to the police “belief” on May 2, 2017. Based on the evidence before me, there is nothing more than speculation or a fishing expedition to hopefully find a third party suspect.

[86] The sought after License Plates disclosure is another example. The Defence request CPIC audits for the License Plates from May 2, 2017 to May 31, 2017. There is no evidence that the police did any CPIC search on the License Plates. The License Plates were only recorded on May 1, 2017 so why the disclosure to May 31, 2017, almost a month after the vehicles were seen at Mr. Trought’s condominium complex. The Defence submits that what, if anything, PRP officer did would establish what investigative steps taken by the police or the sufficiency of the investigation even though the relevancy of whether the police “ran” the License Plates or not can be established through cross-examination. I fail to see how this overly broad request assists in the Credibility Issues, the possible third party suspect issue or the nature or sufficiency of PRP's investigation as it relates to the Charter Applications.

[87] A further concern with the Defence's broad request is that to establish relevancy the Defence relies on considerable speculation.

[88] For example, the Defence submits that when the PRP went into the Condo on May 2, 2017 to arrest Mr. Trought, the PRP believed that other persons, possibly with gang connections, were also at the Condo. The basis for this belief is not apparent on the evidence before me. The Defence submission that the police had this belief is speculative at best. The Defence then relies on this “belief” to speculate that the PRP lied about what they did next, suggesting that the PRP searched the Condo when they arrested Mr. Trought, then they covered up their search and then lied about their search At this point, based on the evidence before me, the Defence’s conclusion is speculative.

[89] Another example of this speculation is that the Defence points to the evidence that the police officers attended at Unit 1009 to suggest that the PRP police officers had conducted an illegal search because the officers would have to "know" that the package was on Unit 1009’s balcony. The Defence concludes that it “defies reason” that the police officers in Mr. Trought’s Condo did not look past the balcony barrier. In my view, based on the evidence before me, this conclusion is speculation.

[90] Another example is the Defence submission that Constable Page went to the Condo’s balcony to yell down to other officers without searching is “also likely misleading” and “the most likely explanation” is that the police officer was searching the balcony. Again, pure speculation on this record.

[91] The Defence submits that, even if the CPIC audits are third party records, the disclosure is necessary to fill in gaps left in officer’s notes and sworn testimony. If there are gaps left in the officer’s notes and/or sworn testimony, a fishing expedition to fill in the gaps is not appropriate or permitted. The Defence must still establish likely relevance on this application before disclosure will be ordered of third party records.

The License Plates

[92] Several vehicles attended at the Condo on May 1, 2017 (“License Plates”). The License Plate numbers were given to the PRP. The License Plate numbers have been provided to the Defence.

[93] The Defence seeks any CPIC Posting/Accessed Information by the PRP regarding the License Plates from May 2, 2017 to May 31, 2017.

[94] I have grave difficulty accepted that this disclosure will show who the PRP believed was in the Condo at the time of Mr. Trought’s arrest since the License Plates do not provide information as to who was in the vehicles or whether they went up to the Condo on May 1, 2017. And even if this information did, I fail to see how it would inform the PRP who was or might be in the Condo at the time of Mr. Trought’s arrest the next day.

[95] The investigation in this case relates to the possession of the firearm and drugs. Arguably, the investigation into these charges did not commence until the police attended at the Condo for the purpose of arresting Mr. Trought on the Toronto warrant and discovered the firearm and drugs (whether at the time of the arrest as the Defence believes or at the time of the execution of the search warrant as testified to by the police officers).

[96] I fail to see how any disclosure regarding the License Plates would relate to the Credibility Issues.

[97] I also have considerable difficulty whether the License Plates establish a connection to third party suspect since the License Plates do not establish who was in the vehicle(s). Mr. Trought was the only person in the Condo at the time of his arrest. The Condo was sealed after Mr. Trought’s arrest. The firearm and drugs were found on the balcony of Unit 1009 at that time. In the Crown’s theory, other persons who visited Mr. Trought prior to May 2, 2017 have no relevance at all since Mr. Trought would have had knowledge and control over the firearm and drugs when he moved them onto the balcony of Unit 1009. On a possible Defence theory that the firearm and drugs were placed on Unit 1009’s balcony by someone else prior to May 2, 2017. On this Defence theory, the License Plates will not provide evidence of the persons who were driving, who may have gone to the Condo, who may or may not have brought the firearm and drugs. The speculative nature of this requested disclosure is obvious but speculation is not relevant if the disclosure is Stinchcombe disclosure, that is, if the disclosure is the fruits of the investigation or obviously relevant.

[98] If the PRP chose to “run” the License Plates with CPIC, it might be for the lounge shooting or for Mr. Trought’s charges for possession of the firearm and drugs? It would appear to me that any CPIC Posting/Accessed Information regarding the License Plates might be part of the investigation regarding Mr. Trought’s charges, even though, like many investigations, where there are multiple investigations on the go and the eventual charges may vary significantly from the initial police investigation. In my view, Stinchcombe disclosure cannot be read too narrowly to deprive an accused of information which may be relevant to the investigation – hence, the Crown’s requirement to make Stinchcombe disclose unless the information is clearly not relevant.

[99] I am also mindful that any inquiry by the PRP regarding any CPIC Posting/Accessed Information could have been recorded by the PRP and, if so, such information would have had to be disclosed to the Defence.

[100] I am satisfied that, if there was any CPIC Posting/Accessed Information by PRP regarding the License Plates, it is Stinchcombe disclosure.

[101] Accordingly, subject to privacy interests of third parties, the PRP shall produce to the Defence any CPIC Posting/Accessed Information in connection with the License Plates from May 2, 2017 to May 31, 2017.

Mr. Trought

[102] It is not known whether the PRP posted to CPIC or obtained any information from CPIC during the Time Period.

[103] It is clear the PRP was attempting to locate Mr. Trought by May 1, 2017. It is not known whether the PRP investigated Mr. Trought prior to this date. On the theory of both the Crown and the Defence, no investigation was being conducted against Mr. Trought for the firearm and drug charges prior to May 2, 2017.

[104] Any CPIC Posting/Accessed Information with respect to Mr. Trought may relate to the lounge shooting, the execution of the Toronto arrest warrant or the investigation of Mr. Trought relating to these charges. The homicide investigation and the Toronto arrest warrant matter are separate and distinct investigations from Mr. Trought’s current charges as the evidence before me does not establish a connection between these investigations.

[105] It is difficult to know whether the CPIC Posting/Accessed Information regarding Mr. Trought’s charges or one of the other investigations or in part to the various investigations. The inquiries and/postings on CPIC by the PRP might relate to Mr. Trought's current charges. Again, it is not appropriate to provide a narrow obligation for Stinchcombe disclosure.

[106] As a result, during the Time Period, if the PRP engaged in CPIC Posting/Accessed Information regarding Mr. Trought, such information could reasonably form part of the fruits of the investigation into Mr. Trought’s charges. This makes such posting/information Stinchcombe disclosure.

[107] For the reasons set out above, unless clearly not relevant and subject to the privacy interests of third parties, any CPIC Posting/Accessed Information by PRP regarding Mr. Trought between April 15, 2017 and May 5, 2017, are to be produced.

Mr. Velasquez, Mr. White and Mr. Tryden Reis

[108] I am satisfied that this is third party disclosure as the Defence has failed to demonstrate that any CPIC postings/inquiries regarding these individuals has any connection with the investigation involving Mr. Trought’s charges or obviously relevant to Mr. Trought's charges.

[109] Service of the application on third parties, whose information is sought, is a pre-condition for a third party application. See O’Connor para 20.

[110] These individuals were not served with the third party disclosure application. On this basis alone, this portion of the disclosure application seeking disclosure of CPIC audits for these persons is dismissed.

[111] In any event, based on the evidence before me, (regardless of whether a Stinchcombe or O'Connor disclosure) the Defence has failed to establish any relevancy or connection between these individuals and the investigation and charges Mr. Trought now faces:

(a) The sole evidence regarding Mr. Velasquez and Mr. White was that they were seen at the Condo on April 15, 2017 some 2 ½ weeks prior to the date of Mr. Trought’s alleged possession of the firearm and drugs. There is no evidence on this application that these individuals have or had anything to do with the charges against Mr. Trought, the investigation of Mr. Trought on these charges or would assist in the Credibility Issues or third party suspect; and

(b) The sole evidence regarding Mr. Tryden Reis was that he was seen at the Condo on April 15, 2017 and again two days after Mr. Trought’s arrest trying to get into the storage area – not the Condo. The Defence has failed to establish any connection between Mr. Tryden Reis and with Mr. Trought’s possession of the firearm and drugs on May 2, 2017 and/or the Credibility Issues and/or third party suspect issues.

[112] In my view, this is nothing more than a fishing expedition. This part of the Disclosure Application is dismissed.

Mr. Royden Reis

[113] Mr. Royden Reis was not served with this disclosure application. Accordingly, it is dismissed for that reason alone.

[114] The Defence is at liberty to renew this application if and when Mr. Tryden Reis is served with the application.

[115] I make no determination as to whether any CPIC audit for Mr. Tryden Reis, if it exists, would be relevant and, if producible.

Conclusion

[116] The Defence Sealing Application is dismissed, except:

(a) subject to privacy interests of third parties, the Crown shall produce to the Defence any CPIC Posting/Accessed Information by the PRP in connection with the License Plate between May 2, 2017 and May 31, 2017; and

(b) unless clearly not relevant and subject to the privacy interests of third parties, Crown shall produce any CPIC Posting/Accessed Information by the PRP regarding Mr. Trought between April 15, 2017 and May 5, 2017.

Ricchetti, J.

Date of signature:

Released: April ___, 2019