COURT FILE NO.: CR-18-40000612-0000 DATE: 20190628 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN (Responding Party) – and – ALEK MINASSIAN (Applicant/Defendant)
Counsel: Joseph Callaghan, John Rinaldi, and Cynthia Valarezo, for the Crown Boris Bytensky, for the Applicant/Defendant
Heard: May 27 and 28, 2019
MOLLOY J.
Reasons for Decision #1 (Defence Application for Disclosure)
A. Introduction
[1] Alek Minassian is charged with 10 counts of first degree murder and 16 counts of attempted murder, all in relation to an incident involving a van being driven into pedestrians on a sidewalk on Yonge St. in Toronto on April 23, 2018 (“the Toronto van attack”). Immediately after the attack, Mr. Minassian was arrested near the scene and has been in custody ever since.
[2] At the time of his arrest, Mr. Minassian was in possession of an Asus cellphone, which was seized by the police. Subsequently, a warrant was obtained for the search of his residence. A number of electronic devices were seized at the residence. Warrants were also obtained authorizing police to search the contents of the electronic devices seized at the residence, as well as the Asus cellphone seized at the time of Mr. Minassian’s arrest. The police had no difficulty accessing most of the devices, and the defence has already received disclosure of their contents. However, three devices were password protected and the police have not been able to break the passwords, notwithstanding considerable efforts both within the police force and by external experts.
[3] Mr. Minassian has declined to provide the relevant passwords to the police, which is his absolute right. He is under no requirement to assist the police in their investigation and has a constitutionally protected right to remain silent. R. v. Beauchamp, [2008] O.J. No. 1347 (S.C.J.), at para. 66; R. v. Shergill, [2019] ONCJ 54. The Crown does not seek to compel the accused to disclose the passwords.
[4] All three locked devices are linked to Mr. Minassian. They are: (1) the Asus phone in his possession at the time of his arrest; (2) an LG smartphone that was found in a drawer of a dresser in Mr. Minassian’s bedroom; and, (3) a MacBook Pro laptop computer, which was also found in the residence and which Mr. Minassian told the police belonged to, and was used by, him.
[5] The defence seeks an order requiring the Crown to either return the devices or provide the defence with imaged copies of their contents for use in preparing for trial. For the reasons that follow, I find as follows:
(i) the defence has met the threshold test of relevance and is entitled to disclosure; and,
(ii) although the Crown has raised legitimate concerns about the potential nature of the material being disclosed, those concerns can adequately be protected by the undertaking of counsel and terms I will impose as part of the disclosure order.
B. Non-Publication and Redaction of Application Material
Non-Publication Order
[6] I was appointed to hear all the pre-trial motions in this case. This was to be done in advance of jury selection. As such, these were motions that were being heard in the absence of the jury, but are part of the trial proceeding. It was my view at the time, and remains my view, that s. 648(1) of the Criminal Code applies, such that no person is permitted to publish in any document or broadcast or transmit in any way any information regarding the application or the contents of the material filed on the application before the jury retires to consider its verdict. Canadian Broadcasting Corporation v. Millard, 2015 ONSC 6583. In the event that the specific provisions of s. 648(1) do not apply, I would have exercised my inherent jurisdiction to make that same order, in order to protect the fair trial rights of the accused. This would be similar to situations where motions are brought after the jury is selected and the jury is excluded while argument is being heard and a ruling made. Likewise, the same non-publication protection applies to evidence at the preliminary inquiry. In all such cases, the purpose of the non-publication order is to ensure that members of the jury do not receive information about the case other than what they hear in the courtroom during the trial. All counsel agreed that the non-publication order was appropriate in respect to these motions before me.
Sealing Order and Redaction of Responding Material
[7] Defence counsel also requested that certain portions of the responding material and factum filed by the Crown be redacted in the public record of these proceedings, and that the unredacted original materials be sealed. The Crown was agreeable to redacting those portions of the record. However, in my view, there is a significant difference between a non-publication order for a specified period of time to protect trial fairness, and a complete excision of material from the public record. The latter is akin to excluding the public from the courtroom and conducting proceedings in secret. Notwithstanding any agreement between counsel, it is the responsibility of the trial judge to safeguard the right of the public to know what is going on in our courts. As a matter of first principles, the public is entitled to be present and to have access to all material that is part of the public record, absent a ruling to the contrary based on established legal principles. Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442. This fundamental right can be curtailed in appropriate circumstances, but only on proper notice to the press, who in this context represent the public. Ultimately, all counsel agreed that such an application is required before the public can be denied access to any portion of the record before me. However, counsel did not turn their minds to this issue in advance of the hearing before me. In these circumstances, I made a sealing order with respect to the responding materials, which would remain in place until such time as the appropriate notice was given and the motion could be heard. It was hoped that we would be able to proceed with that motion on June 19, 2019, which had already been set aside for other motions in this matter.
[8] At the return date on June 19, 2019, the Crown filed the written consent of the Attorney General to the trial proceeding before me without a jury. Mr. Minassian also consented to a judge-alone trial. The media had been served with notice of the sealing order issue. One lawyer, Mr. B. Hughes, attended on June 19, 2019, advising that his client, Post Media Network Inc., was opposed to the sealing of the material and that he had been told by a reporter in the courtroom that the Toronto Star was also opposed. The matter was adjourned to permit counsel to prepare and file material, if so advised. Mr. Hughes had been provided with a redacted copy of the responding material and all counsel agreed that he would be provided with the unredacted version upon his written undertaking that it would not be published without permission of the court, that he would not share its contents directly with his client except to the extent necessary to obtain instructions, that he would not make copies, and that he would return the originals to the Crown at the conclusion of the application. Counsel also agreed, as did I, that the material could be provided to any lawyer who was representing any other media organization on this issue.
[9] The only remaining motion before me was the defence motion for a change of venue, which was rendered moot by the Crown’s consent to the matter proceeding without a jury. I therefore adjourned to July 11, 2019, commencing at noon, for the argument of the sealing order issue.
Change in Circumstances re Non-Publication Order
[10] After court had been closed, the defence and Crown sought to address me on an urgent issue. I reconvened court. The issue they raised was one that had not occurred to anyone at the earlier appearance that morning, namely, whether the non-publication order I made with respect to the other motion materials still remained in place, given that there was no longer a jury. Without deciding the issue one way or the other, I noted that the circumstances had changed significantly and that the media was entitled to be heard on whether there continued to be a basis for a non-publication order in respect of the motion materials. I sealed all of the materials until July 12, 2019, or further order of the court. That issue will also be dealt with on July 11, 2019.
C. Relevance of the Material Sought
[11] The Crown takes the position that the onus is on the defence to establish the relevance of the material sought before a disclosure order can be made, and that the defence has failed to meet that onus. I agree with the Crown that the onus is on the defence to establish relevance in this context. However, I agree with the defence that the onus has been met.
[12] The contents of all three electronic devices at issue are subject to a search warrant obtained by the police. The validity of that warrant, at least for present purposes, is not challenged. In order to obtain that warrant, the police would have been required to show that there were reasonable and probable grounds to believe that the devices would likely contain information relevant to the offence. The statement given by Mr. Minassian to the police after his arrest provides ample grounds for believing that relevant information would likely be contained in any electronic devices used by him. Since the devices continue to be in the hands of the police more than a year after they were seized, it must be assumed that there is a detention order authorizing their retention on a similar basis of relevance.
[13] It is clear from Mr. Minassian’s police statement that he used electronic devices to access sites on the Internet relevant to his motivation in carrying out the acts giving rise to the charges in this case. Although he said he “liked” the MacBook for software development (which he was studying at college), and used his Windows device for surfing the web, that does not mean there would be nothing of relevance on the MacBook. Indeed, if that were the case, the Crown would likely have no objection to simply returning it.
[14] The defence asserts in the Notice of Application that “there is unlikely to be any serious dispute regarding [Mr. Minassian’s] actions” in relation to these charges, and that his “state of mind at the relevant time and in the days, weeks and months leading up to April 23, 2018 are expected to be the central issues at trial.” In oral submissions, defence counsel referred to the fact that an expert forensic psychiatrist has been retained by the defence and that Mr. Minassian’s mental state in the period of time leading up to April 23, 2018 will be vitally important to the ability of the expert to provide an opinion as to Mr. Minassian’s state of mind at critical points. Crown counsel argues that I should disregard this because there is no evidence before me in the form of an affidavit setting out the basis for such a defence or showing how the information on the devices will be relevant to those issues.
[15] In my view, the defence is entitled to rely on the surrounding circumstances, including the material filed by the Crown, to establish relevance. I consider it obvious that Mr. Minassian’s mental state will be the crucial issue at trial. Given the physical evidence, the statements made by Mr. Minassian to the police, the information obtained from internet sources, and the information contained on some of the seized electronic devices that police were able to access, Mr. Minassian’s actions on the day in question do not appear to be the subject of dispute. Why he did what he did and what was in his mind before and during the incident will likely be more contentious. The devices in question are closely connected to him and he was an active user of social media. It flows almost inevitably that what Mr. Minassian was saying and doing on the Internet may shed some light on his motivation and his level of rationality (or lack thereof). His electronic devices are an obvious source of such information. In these circumstances, I find that relevance is established without the necessity of specific affidavit evidence from the defence.
[16] Accordingly, I find that this aspect of the test is met.
D. Possession or Control
[17] The Crown argued that it has no possession or control over the encrypted data on the subject devices and is therefore not in a position to disclose it to the defence.
[18] In its landmark decision in Stinchcombe, the Supreme Court of Canada set out the scope of the Crown’s obligation to make disclosure to the defence, emphasizing that the defence was entitled to anything in the possession of the Crown that is relevant, whether favourable to the Crown’s case or not. In that case, there was no issue with respect to the nature of the Crown’s possession and control of the material sought. However, Sopinka J. noted, (at p. 333):
I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution.
[19] There was no issue in Stinchcombe that required the Court to distinguish between possession and control. That issue did arise to some extent in McNeil, but not in the context in which it arises here. In McNeil, the material sought by the defence were records of disciplinary proceedings and a criminal investigation file relating to a police officer who was a key witness in the case against the accused. These materials were not in the actual possession of the Crown, but they were in the possession of the police. The Supreme Court of Canada held (at para. 22):
The Stinchcombe regime of disclosure extends only to material in the possession or control of the Crown. The law cannot impose an obligation on the Crown to disclose material which it does not have or cannot obtain.
[20] In McNeil, the Supreme Court held that the police had a duty to disclose all relevant evidence to the Crown and that the material sought was therefore within the control of the Crown and fell within the Crown’s first line duty to disclose as defined in Stinchcombe. “Control” in that context, however, related only to the Crown’s right to obtain physical possession of the material in question. The context in which it arises before me is quite different. Here, the Crown has physical possession of the device containing the information and therefore has physical possession of the data stored upon it. The issue is that the data is not accessible by the Crown or the police without a password, which is in the possession of the accused and which he is under no obligation to provide to the police.
[21] The Crown relies on an excerpt from R. v. T.S. in which Hill J. stated:
Information or evidence is in the possession or control of the Crown when it is under the command of the machinery of the prosecution in the sense that the Crown can direct, guide, regulate or otherwise exert authority over the information or evidence. However, this presupposes Crown access to the data or item without breach of privacy or the necessity of a court order to achieve a meaningful measure of control.
[22] While this language about access to and control over data might at first blush appear relevant, it must be looked at in context. The accused in that case was charged with sexually assaulting two complainants during a party. Defence counsel asked the police to obtain a search warrant and seize a videotape in the possession of the boyfriend of one of the complainants depicting various sexual acts involving the complainants earlier that same night. The police refused and the Crown took the position that it would not interfere. By the time defence counsel himself sought a subpoena to require the third party to bring the videotape to court, the tape had been erased. The defence argued that the accused’s right to make full answer and defence had been violated by the failure of the police and the Crown to seize the tape in a timely manner. Hill J. dismissed the application, one of the reasons being that the neither the Crown nor the police had possession or control of the tape and could only have obtained it through a court order, which they were under no obligation to seek. Seen in this context, the decision really does not assist in the analysis of the issue before me.
[23] The only decision either counsel has been able to find that is directly relevant to this issue is that of Smith J. in R. v. Beauchamp. That decision deals directly with electronic data in the possession of the Crown but which the Crown could not access because it was encrypted and the accused would not provide the password. There were five accused in that case, all of whom were charged with various counts of fraud in connection with forging credit cards and debit cards. Computers and hard drives were seized from various locations. Some of the data had been encrypted and could not be accessed by the police. Given the other data that was on the devices, it was believed that the encrypted data could contain credit card data and other personal information belonging to innocent unknown third parties. The trial judge held that it was reasonable to believe that the encrypted data could include business records of the corporate entity involved in the alleged fraud. As such, he inferred that there was potentially both inculpatory and exculpatory material within the encrypted data. He also inferred that the three accused seeking access to the data would have the necessary passwords to access it.
[24] The Crown argued before me that because it cannot access the encrypted data on the subject devices, it has no possession or control over it, and therefore has no duty under Stinchcombe to disclose it. This issue also arose in Beauchamp. In that case, Smith J. held that the Crown’s inability to de-crypt the data meant that the Crown had “only partial control of the information” and that this was a “contextual factor to be weighed and considered when deciding if the failure to disclose information denies the accused their right to a fundamentally fair trial.” Beauchamp, at para. 39. He further held that given these unusual circumstances, it was necessary to “conduct a principled, purposive and contextual analysis” to determine if the fair trial rights of the accused required disclosure. I agree.
[25] In his analysis, Justice Smith noted the following principles arising from Stinchcombe:
a) Justice is better served by the elimination of surprise (para. 10). This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met.
b) The fruits of the investigation in possession of the Crown are not the property of the Crown but of the public to ensure that justice is done.
c) The defence has no obligation to assist the prosecution and is entitled to be adversarial.
d) The search for the truth is advanced by disclosure of all relevant material.
e) The prosecution must retain a degree of discretion in respect of these matters.
f) The exercise of the Crown’s discretion should be subject to review by the Court.
g) The Crown’s discretion “… should extend to such matters as excluding what is clearly irrelevant, withholding the identity of persons to protect them from harassment or injury, or to enforce the privilege relating to informers.”
h) There is a general principle that disclosure is not to be withheld if there is a reasonable possibility that failure to disclose may impede or may impair the accused’s right to make full answer and defence which is a principle of fundamental justice protected under section 7 of the Charter.
i) Anything less than full disclosure by the Crown falls short of decency and fair play.
j) It is neither possible nor appropriate to lay down precise rules here and disclosure should be worked out in the context of concrete situations. Beauchamp, at para. 34.
[26] Smith J. also noted, at para. 33, that in Stinchcombe, the Supreme Court found that there were three situations when the Crown could exercise its discretion to refuse disclosure, namely where the information sought is: (1) beyond its control; (2) clearly irrelevant; or (3) privileged.
[27] I note in particular, as did Smith J. in Beauchamp, that the decision in Stinchcombe specifically contemplates that it is not possible to formulate precise rules for disclosure applicable to all cases and that in some cases the terms of disclosure must be worked out in the context of the concrete circumstances raised by the case before the Court. This is such a case.
[28] On the particular facts of the case before me, I find that the Crown has possession and control of the material sought by the defence. The data is stored on physical hard drives in the possession of the Crown. The devices belong to Mr. Minassian. But for the seizure of the devices by the Crown, Mr. Minassian would be entitled to possession of them, and all the data stored therein, whether he could access that information or not. There is no other person who has a right to possession of the material. By excluding Mr. Minassian from accessing that material, the Crown has demonstrated that it has both possession and control of it, regardless of whether it has knowledge of its content.
[29] In my view, in the situation before me, any limit on Mr. Minassian’s right to disclosure of the data on his own personal devices is not a function of the Crown’s lack of control or possession, but rather depends on whether the integrity of the justice system and public safety can be protected notwithstanding the Crown’s inability to review and edit the material before disclosure. Stinchcombe established that the Crown’s obligation to disclose all relevant material to the defence in its possession or control is not automatic or universal. The Crown retains a discretion, the exercise of which is subject to review by the Court. In the exercise of that discretion, the Crown will frequently edit the material disclosed to the defence in order to protect confidential informant privilege or the personal privacy rights of third parties. However, those are not the only circumstances in which the discretion may be exercised. Another basis for withholding disclosure is to prevent the commission of an offence, as arose in Beauchamp (where the material sought contained credit card and debit card numbers of third parties). As noted in Stinchcombe, the rules are not precise. A flexible and contextual approach must be taken.
F. Balancing Rights
The Competing Rights
[30] An accused person has a right under s. 7 of the Charter to “life, liberty and security of the person.” This includes the right to make full answer and defence, and the associated right to disclosure by the Crown of any material in its control that may be relevant to the defence. The key issue in this case will likely be Mr. Minassian’s mental state in the time period prior to the Toronto van attack. The most obvious source of such information would be the things he wrote and spoke about to others at the time, including on social media. I see a direct link between the right to make full answer and defence and the ability to access the most relevant data as to his state of mind at the relevant time. His s. 7 rights are clearly invoked.
[31] The rights in s. 7 are not absolute, but the Charter provides that they cannot be denied “except in accordance with the principles of fundamental justice.” The question, then, is whether it is in accordance with fundamental justice in this case to deny disclosure to Mr. Minassian based on the fact that the Crown has no knowledge of the information on the devices and is unable to review and vet the data.
[32] The Crown has a responsibility to protect the integrity of the administration of justice and to ensure the protection of the public. If the Crown had knowledge that the materials being disclosed contained personal information about third parties, the Crown would protect that information from disclosure. Likewise, the Crown would vet any material being released to determine if there were matters that should be referred to the police for investigation. This could include information relevant to the charges already laid, other potential charges, potential criminal charges against third parties, or a danger to third parties from potential future crimes. The position of the Crown is that disclosure cannot be made without the Crown exercising its duty to protect the public and the administration of justice by first reviewing the material to be disclosed.
No Advantage or Disadvantage to the Case of the Crown
[33] It might be said that there is no disadvantage to Mr. Minassian because nothing in the data can be part of the case he has to meet. However, that ignores the fact that the data may be helpful to the defence. Thus, there is a risk of considerable disadvantage to the defence by withholding the data, particularly given the key role of state of mind to the defence.
[34] It is possible for the Crown to provide the data to Mr. Minassian’s counsel in a form that permits access to it by the defence, without changing the position in which the Crown now finds itself. The Crown would not be giving up the hard drives. The data can be provided in its encrypted form with the Crown retaining the originals. Thus, the Crown will be able to continue its attempts to crack the passwords and obtain access to the data. In that sense, the Crown has lost nothing. There is no concern that any evidence will be lost as a result of the disclosure. The professional ethical duties of defence counsel include a prohibition against concealing, destroying or altering any material disclosed to him. Law Society of Ontario, Rules of Professional Conduct, Rule 5.1-2A (“Incriminating Physical Evidence”).
[35] The defence intends to provide the data to an independent medical expert to use in considering Mr. Minassian’s mental state at the time of this incident. If that expert testifies on behalf of the defence, all of the data he or she reviewed in coming to an opinion will be disclosed to the Crown. In that sense, the Crown will then have more information than it does now. The Crown points out that it would be open to the defence to be selective in what information they provide to the expert. That may be the case, but this is no different than in any other case where the defence retains an expert. Further, any failure by the defence to provide the full data, rather than an edited version of it, would provide fertile grounds for cross-examination and would undermine the weight likely to be given to the expert’s evidence. Thus, if the data turns out to be useful to the defence, the Crown will have it. If, on the other hand, the expert does not review any of the data, or no expert is called by the defence, there is no disadvantage or unfairness to the Crown. The Crown will be in the same position as it is now.
Privacy Interests of Third Parties
[36] This is not a situation in which the material sought was previously in the hands of third parties. Until seized by the police, all the data was in the exclusive control of Mr. Minassian. To the extent it includes private information of third parties, it was already in Mr. Minassian’s possession and control and is not being provided to him for the first time by the Crown.
[37] This situation is distinguishable from third party records applications, where the documents sought typically contain private information about third parties to which the accused would otherwise have any access.
Public Safety
[38] Concerns for public safety and the possibility of the commission of further offences is a very real concern. Child pornography was found on a Lenovo laptop computer associated to Mr. Minassian, which he admitted to the police belonged to and was used by him. The child pornography consisted of photographs of a topless female, estimated to be between the ages of 12 and 15. That same computer was used in the Minassian residence by a male person engaging in Skype Media chats with that same female. Given the other content of the computer, Mr. Minassian’s admitted use of the computer, and its location in the closet of his bedroom, it is possible this male person was Mr. Minassian. The child involved has been located and lives in the United States. Police forces from both Toronto and the United States are currently engaged in a criminal investigation relating to that child. There were also indications on that same Lenovo computer that there had been internet searches of, and links to, teen pornography sites. There is a real possibility that Mr. Minassian’s other personal devices may contain evidence relevant to those ongoing investigations. It is also possible that other children may have been involved in a similar manner and that there could be evidence of those interactions on Mr. Minassian’s other devices. This goes beyond mere speculation given what has already been found on devices linked to him. One actual at-risk child has been identified and located. There may be others, and it is clearly of the utmost importance that they be found and protected.
[39] That said, given that the police are unable to access the data, the Crown’s refusal to disclose the data to the defence does nothing to protect those children who might be at risk. Further, if the data is disclosed to the defence, there is no risk that Mr. Minassian will be in any position to use any of it to commit further offences. He is in custody and he is represented by counsel who is bound by ethical responsibilities. I am confident no such information will ever be turned over to Mr. Minassian.
[40] Not only does disclosure to the defence not constitute a risk to public safety, the reverse is true. Defence counsel has ethical responsibilities that transcend his duty to his own client. If defence counsel becomes aware of a risk to the safety of a third party, counsel is duty-bound to ensure that the relevant authorities are notified and provided with sufficient information to investigate the matter and to contact and protect the persons at risk. If this can be done without breaching solicitor-client confidentiality, that is preferable. However, if the protection of a risk to a member of the public would inevitably result in the disclosure of Mr. Minassian’s identity as the source of the information, the solicitor’s duty to the administration of justice and protection of the public takes priority. Therefore, if the data disclosed to the defence reveals that there are children or other members of the public at risk, there will be a duty on defence counsel to divulge the information. Thus, disclosure to the defence may result in protection of individuals at risk, whereas non-disclosure cannot.
[41] The same reasoning applies to the real risk that there may be individuals who have communicated to Mr. Minassian their own intent to commit murders or otherwise cause harm to members of the public. Again, this is not mere speculation. Immediately before the incident giving rise to the deaths and injuries that are the subject of this case, Mr. Minassian posted a message on Facebook, as follows:
Private (Recruit) Minassian Infantry 00010, wishing to speak to Sgt. 4chan please. C23249161. The Incel Rebellion has already begun! We will overthrow all the Chads and Stacys! All hail the Supreme Gentleman Elliot Rodger.
[42] Elliot Rodger was a mass-murderer in the United States. He is regarded by some as the father of the “incel rebellion,” referring to acts of violence by individuals who identify as “incel” (involuntarily celibate) against those they perceive to have excluded them (so-called “Chads and Stacys”). It appears from Mr. Minassian’s Facebook post, and also from his statement to the police, that he often accessed an open internet forum known as 4Chan, where other “incels” exchanged views. There is a real danger that some such individual might carry out an attack in Canada or elsewhere inspired by the Toronto van attack in 2018. There has already been an alarming incident in London, Ontario involving a man named Alex Penkala, who was arrested and charged after police received a Crime Stoppers tip about a posting he allegedly put on YouTube in which he threatened mass killings of women. Other evidence in respect of Mr. Penkala includes tweets in which he referenced Elliot Rodger and the Toronto van attack.
[43] The Crown is concerned that the encrypted data may include communications to Mr. Minassian by others who identify as “incel”, and that these communications could include evidence of other criminal acts or information about a danger to specific people or places. In my view, this is a realistic concern. However, it is not a bar to disclosure given the ethical responsibility of defence counsel and other safeguards that can be put in place.
G. Safeguards and Conditions of Disclosure
[44] In my view, all of the material sought is disclosable upon appropriate safeguards being put in place.
[45] The primary safeguard is the ethical responsibility of defence counsel. I am fully satisfied as to the professional integrity of Mr. Bytensky. He is fully aware of his responsibilities as a solicitor and an officer of the court and I know he will conduct himself with absolute integrity, as will his associates.
[46] This is a safeguard which was not available in the Beauchamp case because two of the accused were not represented by counsel. The fact that there were multiple accused and that some were un-represented by counsel was the main basis upon which disclosure was refused. First, Smith J. was concerned about the fairness of the trial if disclosure was given to some accused, but not others. Beauchamp, at para. 45. There was no assurance that all of the accused would have the necessary passwords to access the encrypted material, although clearly some of them did. Smith J. also considered whether undertakings from counsel would provide an adequate safeguard, rejecting that option on the basis that one of the applicants seeking disclosure did not have a lawyer and therefore would not be bound by any undertaking by counsel. Beauchamp, at paras. 59-62. I would distinguish the Beauchamp decision on that basis. There is only one accused in this case and he is represented by well-respected, experienced counsel. If Mr. Minassian was not represented by counsel, I would not order disclosure.
[47] All defence counsel who will have access to the disclosed material will be required to sign an undertaking. The Crown filed a proposed undertaking as Exhibit 1 at the hearing before me. The first two paragraphs are definitional and are appropriate. Paragraphs 3-6 are under the heading “Redaction Requirements;” 7 and 8 relate to reporting requirements; and 9 and 10 to the return of the data.
[48] The proposed paragraph 6 is not actually about redaction. It states that “counsel shall retain possession and control of the data at all times and when not being viewed, must ensure that the data is kept in a secure, locked location.” This is an appropriate provision. To this I would add a further condition that in the event Mr. Bytensky ceases to be counsel to Mr. Minassian, he shall personally retain custody of the data until further order of the court.
[49] Likewise, I take no issue with paragraph 5, which states that “counsel will provide a copy of this undertaking to any third party, before showing or providing him/her with any data.” However, I would also add that further court approval is required before any third party is permitted to access the material, other than a medical professional retained as an expert by the defence or a computer expert retained solely to deal with the technological aspects of accessing the material. With respect to medical experts, they should be required to sign a similar undertaking. If the terms cannot be agreed upon, directions from the Court may be sought. With respect to the computer experts, a suitable undertaking should also be signed, and that expert should not have access to the material except in the presence of defence counsel.
[50] The Crown proposed (in paragraph 3) that before the data is shown or provided to Mr. Minassian by his counsel, counsel should redact “all names, user names, handles, pseudonyms, nicknames and contact information in relation to any chat rooms, forums, internet/online media or any other electronic communication” and “all names and contact information contained in any address books or contact lists.” Mr. Bytensky protested that this requirement would place an onerous, almost impossible, burden upon the defence. I agree. Such efforts would be virtually impossible to achieve and I do not consider them necessary.
[51] Instead, I would impose a requirement, (similar to the proposed paragraph 4) that counsel shall not allow Mr. Minassian to review the data without being in the direct company of counsel. To this I would add that counsel should only review with Mr. Minassian such data as counsel considers appropriate in order to obtain instructions in the conduct of the defence. Mr. Minassian must never be simply “provided” with the data.
[52] With respect to the proposed paragraph 9, I agree that it is appropriate that defence counsel shall ensure that any copies of the data provided to third parties be returned. The Crown proposed that this should occur upon 60 days after the expiration of relevant appeal periods, which I agree is a reasonable limitation.
[53] The Crown also proposed (in paragraph 10) that upon 90 days after the expiration of any relevant appeal periods, defence counsel must return all the material disclosed, along with any copies, to the Crown for destruction. Defence counsel submitted that this was an unnecessary provision and might interfere with the ability of defence counsel to review the material at a later date with a view to consideration of an appeal based on new evidence. I agree with Mr. Bytensky that destruction of the material is an unnecessary step. It might later be relevant to future psychiatric assessments or parole considerations. Without knowing what the material contains, I am reluctant to order that it be destroyed upon the expiration of an appeal period. Instead I would order that it be kept in the custody of defence counsel in a secure locked location, or destroyed by defence counsel if so advised, or otherwise disposed of in accordance with any further order of the court.
[54] The more difficult issue is what defence counsel should do if the material discloses evidence of the commission of an offence or a danger to the public. I agree with the principle underlying the Crown’s proposed paragraph 7 that “upon discovery of any child pornography, video or related chats, Counsel must immediately report this to the police.” However, without knowing the full nature of such material, whether it implicates Mr. Minassian, and whether it can be disclosed without breaching solicitor-client privilege, I am reluctant to stipulate a precise rule or procedure for dealing with it. It may be appropriate to involve a neutral third party or another lawyer so as to make the disclosure without revealing Mr. Minassian’s identity. I consider it important to retain some flexibility here. I would impose a provision that upon discovery of such material, defence counsel shall either personally provide it to the police, or provide it to the police through an anonymous source, or seek directions from the court. Depending on the circumstances, any such application for directions does not necessarily need to be before me. Now that I will be the trial judge, it might be preferable for another judge to hear any application involving other possible criminal conduct by Mr. Minassian. Also, depending on the circumstances, such an application may be made, at least in the first instance, on an ex parte basis.
[55] Under the draft paragraph 8, the Crown proposed that upon discovery of evidence of a crime under the Criminal Code or other federal act having been committed by anyone, Counsel must report this to the police. I do not agree that defence counsel has an obligation to report to the police any information relating to past criminal acts committed by Mr. Minassian. I also find that extending this requirement to any other federal act is too broad. However, it is appropriate to include a requirement that the defence report to the police any evidence of a Criminal Code offence committed by any other person, or any statement by another person of an intention to commit such an offence. As with the previous provision, this should be subject to further order of the court, and may be brought before any judge, including on an ex parte basis, if counsel considers it appropriate.
H. Conclusion and Order
[56] The defence is entitled to disclosure of the data on all of the seized devices, subject to the conditions I have referred to and subject to the signing of an undertaking in a form approved by me incorporating the terms I have referred to above.