Court File and Parties

COURT FILE NO.: CR-17-92 DATE: 20190321 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – EBENEZER AMPADU, JILLIAN CLARE, JAMES PANICCIA and JULIAN ZENCZUK Defendants

Counsel: Frederick Temple and Indy Kandola for the Crown Jessica Sickinger for Mr. Ampadu Leo Kinahan for Ms. Clare Daniel MacAdam for Mr. Paniccia Anthony Bugo and Salvatore Caramanna for Mr. Zenczuk

HEARD: March 18, 2019

Ruling on Defence Disclosure Applications

BOswell J.

Overview

[1] The defendants are jointly charged with manslaughter, assault with a weapon and assault causing bodily harm. Their trial is set to begin in a week’s time before a jury in Barrie, Ontario.

[2] The defendants jointly seek an order compelling the Crown to provide further and better disclosure to them than what they have received to date.

[3] There are two contentious areas, each of which has given rise to a distinct defence application. The first relates to a request for the notes of any police officer who attended any witness preparation meetings with the Crown. The second relates to any materials the Crown has in its possession that it intends to utilize during the cross-examination of a proposed defence expert witness. The Crown opposes both applications.

[4] The sole issue for the court is whether the Crown has breached its disclosure obligations in some way and, if so, what information and/or materials must be disclosed.

The Alleged Offences

[5] It is not necessary, for the purposes of this motion, to review much of the factual context to the charged offences. A very brief overview will suffice.

[6] A small car containing six young adults passed three males travelling on foot on a street in downtown Bradford in the early morning hours of September 12, 2015. Words were allegedly exchanged between the two groups, which led to a physical altercation.

[7] During the course of the altercation one of the foot travellers was killed. Four of the occupants of the car have been charged with manslaughter and other offences, as mentioned.

The Materials in Issue

[8] The defendants’ trial began before a jury in the spring of 2018. It proceeded over a number of weeks, but a mistrial was declared as a result of the improper behaviour of one of the jurors. A retrial is set to commence with jury selection on March 25, 2019.

[9] The Crown has obviously lined up a number of witnesses to testify at trial. In the usual course, the Crown has met with some, if not all, of these witnesses to prepare for trial and, quite likely, to prepare for the re-trial.

[10] By convention, a police officer typically attends meetings where the Crown prepares witnesses for trial. The officer generally takes notes, but the extent of the note-taking is not necessarily consistent from officer to officer. Some may take copious notes, while others may note down only new information or information that contradicts something said by the witness on a prior occasion.

[11] In the context of this case, a number of witnesses testified during the first trial that they had preparatory meetings with the Crown and that Officers Johnson and Smith attended.

[12] I have no evidence before me as to what notes those officers took, but a reasonable inference arises from their presence at the meetings that they would have made notes of some sort. Defence counsel seek copies of all such notes.

[13] One of the live issues in the case is the extent to which the deceased, Mr. James McCallen, was intoxicated at the time of the confrontation. There is apparently conflicting evidence about whether he was steady on his feet after a night of drinking. Self-defence is likely to be a central issue at trial and Mr. McCallen’s ability to engage in a fight will be of some significance.

[14] Counsel for Mr. Zenczuk retained the services of a toxicologist – Dr. Joel Mayer – to provide a report regarding Mr. McCallen’s blood alcohol content at the time of the confrontation and to provide more general evidence about the effects of alcohol consumption and the likely onset of those effects relative to consumption.

[15] During the course of a pre-trial conference, Crown counsel advised defence counsel, as a courtesy, that he would likely challenge Dr. Mayer during cross-examination with the suggestion that he is biased against the Crown. I note that the Crown does not, however, contest Dr. Mayer’s qualifications as an expert in the field of toxicology, nor oppose the admissibility of the opinions to be offered by him.

[16] Defence counsel are concerned that the Crown must have in its possession materials that support the suggestion of bias. A written request was made on September 26, 2018 for disclosure of “all material and information that the Crown is considering using to cross-examine Dr. Mayer. This includes any trial transcripts, rulings and underlying disclosure material from any unrelated cases the Crown will rely on, refer to, or be informed by in its attempt to form the basis for impeachment, cross-examination or an allegation of bias.”

[17] To date the Crown has not disclosed any of the materials requested by the defence.

[18] I have no evidentiary record of any such materials, nor any indication as to how they may be of use in impeaching the defence toxicologist.

[19] Crown counsel advised, during argument of the motion, that the only material he has, relevant to the bias issue, is a copy of a transcript of a prior court proceeding where Dr. Mayer gave expert evidence. The argument on the application thereafter centered on whether defence counsel are entitled to a copy of that transcript.

The Governing Authorities

[20] The basic principles surrounding the Crown’s disclosure obligations have been settled for almost three decades. R. v. Stinchcombe, [1991] 3 S.C.R. 326, remains a controlling authority and is frequently cited by defence and Crown counsel alike. Of course there have been a great many disclosure rulings since Stinchcombe was released. Its principles have been refined and expanded on.

[21] A review of the relevant case law reveals a number of important principles, including the following:

(a) A defendant’s right to disclosure is a principle of fundamental justice and a component of the constitutional right to make full answer and defence: R. v. McNeil, 2009 SCC 3 at para. 14; R. v. Girimonte (1997), 121 C.C.C. (3d) 33 (Ont. C.A.) at para. 16;

(b) The right to disclosure extends to exculpatory as well as inculpatory materials: R v. Stinchcombe, at para. 29; R. v. Bottineau, [2005] O.J. No. 4034, at para. 31;

(c) In response to a request from the defence, the Crown is required to disclose all relevant material in its possession or control. It matters not whether the Crown intends to call the evidence at trial, nor whether the material even constitutes evidence that would be admissible at a trial. One measure of relevance is the usefulness of the information to the defence: R. v. Egger (1993), 82 C.C.C. (3d) 193 (S.C.C.).

(d) The Crown’s first party disclosure obligations are often said to relate to the “fruits of the investigation”. That descriptor includes all relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused as well as 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. The information may relate to the unfolding of the narrative of events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet: R. v. Jackson, 2015 ONCA 832 at paras. 92-93;

(e) The Crown’s obligation to disclose is not absolute, but there are few exceptions to it. In particular, the Crown’s obligation does not extend to evidence that is beyond the control of the Crown, clearly irrelevant, privileged, or where its disclosure is otherwise governed by law: R. v. McNeil, as above, at para. 18;

(f) The Crown’s discretion is reviewable by the trial judge.

The Parties’ Positions

[22] The defendants take the position that the Crown has breached its fundamental disclosure obligations.

[23] With respect to the notes of witness preparation meetings, Ms. Sickinger pointed to evidence given by witnesses during the original trial to the effect that they had met on a number of occasions with the Crown to prepare for the preliminary hearing and the trial. She posited that it is reasonable to believe that other witnesses have or will meet with the Crown for preparation purposes.

[24] The defence has requested, orally and in writing, that the notes of any officers at those meetings be produced. In Ms. Sickinger’s view, the officers who attended such meetings had an obligation to take notes. Their notes are, in her submission, clearly relevant and necessary to the ability of the defendants to make full answer and defence.

[25] She wants to know when preparation meetings took place, who attended and whether the witnesses were shown anything new. If the officers present did not take notes, she wants them to produce “will say” statements describing what transpired at the meetings.

[26] The Crown’s position regarding any officers’ notes of pre-trial preparation meetings is that they are not required to be disclosed because they contain no new, relevant information. Crown counsel assured the court that if new information is provided by a witness, it will be documented and disclosed. The Crown characterizes the defence application as nothing more than a “fishing expedition”.

[27] In addition, the Crown raised a concern that the defence was attempting to intrude upon its work product, which is, the Crown submitted, the subject of litigation privilege.

[28] With respect to the transcript of the prior proceeding where Dr. Mayer testified, the defendants again argue that the Crown has fallen short in its disclosure obligations. Mr. Bugo submitted that the Crown is obliged to disclose all materials it has that relate to the credibility and reliability of both Crown and defence witnesses, including expert witnesses. The transcript involving evidence given by Dr. Mayer in another proceeding is exactly that type of material, if it discloses, as the Crown has suggested, a basis to challenge Dr. Mayer’s objectivity or his impartiality as between Crown and defence.

[29] The Crown’s position is that the transcripts in issue are a matter of public record. They are not the fruits of the investigation. If the defence wishes to obtain a copy of the transcript to assist in Dr. Mayer’s trial preparation, they may source the transcript out themselves.

[30] Crown counsel submitted that the defence is over-reaching and attempting to compel production of the Crown’s thoughts and strategies in terms of cross-examining Dr. Mayer. He expressed concern that criminal litigation in Canada remains adversarial in nature and that Crown counsel should not be required to disclose their cross-examination strategies.

Discussion

[31] In my view, and for the reasons that follow, the Crown is obliged to disclose both the notes of the officers who attended trial preparation meetings with the Crown and a copy of the transcript of Dr. Mayer’s prior evidence.

[32] I will address these issues in sequence, beginning with the officer’s notes.

[33] The Crown has conceded that officers have taken brief notes relating to witness preparation meetings.

[34] The Supreme Court directed in R. v. Chaplin, [1995] 1 S.C.R. 727 that “once the existence of certain information has been identified, then the Crown must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged.”

[35] In this instance, the officers’ notes are clearly not privileged. It falls to the Crown, then, to establish that the notes are clearly irrelevant. I am not persuaded that they have met that burden.

[36] In my view, the dates and times when witnesses have met to discuss their evidence with the Crown and the fact that police officers were present during those discussions are matters of some relevance to the defence.

[37] The Crown may be correct in saying that the officers’ notes do not contain any new, relevant evidence. But that position, in my view, tends to conflate the concepts of relevance and redundancy.

[38] The officers’ notes should be disclosed.

[39] Ms. Sickinger asked that I compel the Crown to obtain will-say statements from the attending officers if they did not make notes of the subject matter of the preparation meetings. I am not prepared to do so. The Crown is not obliged to disclose what does not exist. I have no basis on which to conclude that new evidence was disclosed or discussed at any witness preparation meetings that has not previously been disclosed to the defence.

[40] I agree with the finding of Akhtar J. in R. v. Jalili, 2018 ONSC 6408, citing Durno J. in R. v. Machado, 2010 ONSC 277, that the law does not require police officers to record everything they see or hear in their notebooks in order to comply with the Crown’s disclosure obligation. (Para. 56). I also agree with Justice Akhtar’s further observation, at para. 167 of Jalili, to the effect that ordering will-say statements in these circumstances would be tantamount to “ordering the creation of evidence rather than disclosure.”

[41] I will move on to the issue of the transcript of Dr. Mayer’s evidence.

[42] The defendants put significant reliance on the decision of Stong J. in R. v. R.A.S., [1996] O.J. No. 4583 (S.C.J.). Their reliance is understandable. The facts are quite similar to the facts here and the result favoured the defence.

[43] In R.A.S., the defence proposed to call a psychologist to give expert opinion evidence in a number of areas including sexual deviance. The Crown’s office had compiled a “dossier” of information to use in cross-examining the defence expert. The dossier included transcripts of the psychologist’s testimony in other trials. Defence counsel applied for an order that the Crown disclose the contents of the dossier.

[44] Stong J. reviewed the principles from Stinchcombe and, relying on them, he ordered disclosure, saying:

It would be unfair to require Dr. Bray to give evidence without knowing with what she would be confronted with. What may be contradictory to the untrained eye may very well not be contradictory to a qualified professional or a person qualified as an expert witness. It would be unfair to the trier of fact to be left without a witness who, having been so qualified as an expert witness, would not be fully aware of and fully prepared to meet any of the questions that could be put to her in this case by either counsel. Although it may take away a substantial advantage to the cross-examiner in this case, not only is it fair to the witness but it is required by the trier of fact that that witness be well versed in the areas in which in this case she is going to be cross-examined or examined in-chief. It is essential for the search for truth that a trap not be laid by allowing that witness to testify without the benefit of seeing "contradictory writings which the prosecutor holds close to the vest".

[45] Crown counsel argued that Justice Stong’s decision goes too far; that his comments would, in effect, require the Crown to disclose its entire cross-examination strategy. I tend to agree. The Crown is not under an obligation to assist in the preparation of defence expert witnesses by giving them the heads up about what questions are going to be put to them.

[46] That said, the defence request in this case is not so broad. They are asking for the disclosure of a single document that Crown counsel has suggested provides evidence of partiality on the part of an important defence expert witness. They are not asking Crown counsel to explain what it is about the prior testimony that may lead to an inference of bias. They are not asking for information about the Crown’s thought processes or cross-examination strategy.

[47] Crown counsel contends that the transcript in issue is not part of the proverbial fruits of the investigation. But disclosure is not limited to the fruits of the investigation. While that phrase is a helpful, compendious way to characterize the type of information that must be disclosed to an accused person, it is not exhaustive. The Crown is required to disclose all information that is obviously relevant to the accused’s case: McNeil, para. 59. Indeed, given the existence of the document in issue, the Crown’s onus is to establish that it is clearly irrelevant.

[48] I am far from satisfied that the transcript is clearly irrelevant. In fact, Crown counsel has himself suggested that the transcript is relevant to the question of the impartiality of a defence expert witness.

[49] Crown counsel further argued that requiring the disclosure of the transcript in issue would be unfair to the Crown from a litigation perspective. For better or worse, we still use an adversarial trial system in Canada and the Crown should not, in its submission, be deprived of the tactical advantage of surprise during cross-examination of important defence witnesses.

[50] I am not persuaded by this argument for a number of reasons.

[51] First, the purported “element of surprise” is essentially already lost. The defendants know that the Crown may challenge Dr. Mayer on the issue of bias and may use his testimony in a prior proceeding to do so.

[52] Second, the Crown is not an ordinary litigant. As Justice Charron observed in McNeil, at para. 49, “as a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice.”

[53] In the landmark case of Boucher v. The Queen, [1955] S.C.R. 16, Rand J. described the role of the Crown as follows:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion 'of winning or losing’…

[54] It is with this context in mind that I observe that the Crown’s tactical litigation advantage is of considerably less concern to the court than the accused’s constitutional right to make full answer and defence. And that right includes the right to disclosure of any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right.

[55] Finally, as I noted, the Crown has asserted that evidence found in the transcript may serve to impeach an important defence witness. In other words, it may contain information that impacts on the credibility and/or reliability of a defence witness. For that reason, it is relevant to the defence case. None of the limited bases for refusing disclosure are operative in the circumstances. In my view, the transcript must be disclosed.

Boswell J.

**Released:** March 21, 2019

case_law:

• title: "R. v. Stinchcombe, [1991] 3 S.C.R. 326" url: "https://www.canlii.org/en/ca/scc/doc/1991/1991canlii45/1991canlii45.html"
• title: "R. v. McNeil, 2009 SCC 3" url: "https://www.canlii.org/en/ca/scc/doc/2009/2009scc3/2009scc3.html"
• title: "R. v. Girimonte (1997), 121 C.C.C. (3d) 33 (Ont. C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1997/1997canlii1866/1997canlii1866.html"
• title: "R. v. Bottineau, [2005] O.J. No. 4034" url: "https://www.canlii.org/en/on/onsc/doc/2005/2005canlii63780/2005canlii63780.html"
• title: "R. v. Egger (1993), 82 C.C.C. (3d) 193 (S.C.C.)" url: "https://www.canlii.org/en/ca/scc/doc/1993/1993canlii98/1993canlii98.html"
• title: "R. v. Jackson, 2015 ONCA 832" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca832/2015onca832.html"
• title: "R. v. Chaplin, [1995] 1 S.C.R. 727" url: "https://www.canlii.org/en/ca/scc/doc/1995/1995canlii126/1995canlii126.html"
• title: "R. v. Jalili, 2018 ONSC 6408" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc6408/2018onsc6408.html"
• title: "R. v. Machado, 2010 ONSC 277" url: "https://www.canlii.org/en/on/onsc/doc/2010/2010onsc277/2010onsc277.html"
• title: "R. v. R.A.S., [1996] O.J. No. 4583 (S.C.J.)"
• title: "Boucher v. The Queen, [1955] S.C.R. 16" url: "https://www.canlii.org/en/ca/scc/doc/1954/1954canlii3/1954canlii3.html"