The Estate of Alexander Cross et al v. The Estate of Enrico Staniscia et al, 2020 ONSC 3784

Court File No: 17-72772 & related

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Court File No: 17-72772

THE ESTATE OF ALEXANDER CROSS, by his estate trustee MARCELYNE CROSS, MARCELYNE CROSS, DOMINIQUE ROMAIN, MAXIME ROMAIN and STEPHANE ROMAIN

Plaintiffs/Moving Parties

-and-

THE ESTATE OF ENRICO STANISCIA, JENNIFER JUDGE, INTACT INSURANCE COMPANY, SALOMON GUTIERREZ, JOHN DOE 1, STEPHEN J. HODGSON, WENDY R. MARCUCCIO, JOHN DOE 4, JOHN DOE 5 and OTTAWA POLICE SERVICE

Defendants/Respondents

-and-

RE: Court File No: 18-75982

MEGHAN DEMERS, SHANNON DEMERS and RYAN O’NEILL

Plaintiffs/Moving Parties

-and-

THE ESTATE OF ENRICO STANISCIA by his Estate Administrator, John Doe, JENNIFER JUDGE, THE ESTATE OF ALEXANDER CROSS, by his estate trustee MARCELYNE CROSS, INTACT INSURANCE COMPANY, SALOMON GUTIERREZ, WENDY R. MARCUCCIO, STEPHEN J. HODGSON, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5 and OTTAWA POLICE SERVICE

Defendants/Respondents

BEFORE: Master Fortier

COUNSEL: David Hollingsworth and Philippe Michaud-Simard counsel for the plaintiffs/moving parties in action 17-72772.

Lesly Joseph counsel for the plaintiffs/moving parties in action No: 18-75982.

Domenico Polla, Counsel for the responding Non-Party Special Investigations

Unit.

HEARD: May 14, 2020 (in writing)

REASONS FOR DECISION

INTRODUCTION

1. The plaintiffs in action Nos. 17-72772 and 18-75982 have each brought motions seeking production of documents from the Special Investigations Unit (“SIU”), a non-party, pursuant to rule 30.10 of Rules of Civil Procedure, RRO 1990. Reg 194.

2. Both the moving parties and the responding non-party consent to have this motion heard in writing due to COVID-19. The plaintiffs in both actions have filed a joint factum and seek the same relief. They will hereinafter be referred to as “the plaintiffs” or “ the moving parties”.

BACKGROUND

3. On April 12, 2016, Alexander Cross was driving his vehicle on the Vanier Parkway in Ottawa. Meghan Demers was his front seat passenger. A vehicle driven by Enrico Staniscia collided with Mr. Cross’ vehicle, causing Mr. Cross to suffer life-ending injuries and severely injuring Ms. Demers. Mr. Staniscia was also injured in the accident and succumbed to his injuries some time later.

4. Ms. Demers and Mr. Cross’ estate, and their respective families began separate actions for damages.

5. Enrico Staniscia had been pursued by Ottawa Police Service officers prior to the time of the collision. The Ottawa Police Service (the “OPS”), as well as officers Gutierrez, Hodgson, and Marcuccio are defendants to this action.

6. Following the accident, the Special Investigations Unit (the “SIU”) completed an investigation of the OPS and the subject officers in relation to the events leading to the accident.

7. The SIU is mandated to investigate all serious injuries and deaths caused by police officers in the province of Ontario and to determine whether there are reasonable grounds to believe a police officer committed a criminal offence.

8. Pursuant to this mandate, the SIU investigated the collision and completed a report dated May 26, 2017. The SIU Director found that there were no grounds to believe the OPS officers committed an offence and the investigation was closed.

9. In the course of their investigation, the SIU obtained or created several documents. The documents include administrative forms, witness statements, correspondence, police records, investigator notes, various reports, video footage and photographs.

10. The plaintiffs in both actions bring motions seeking an order pursuant to Rule 30.10 of the Rules of Civil Procedure requiring the SIU to produce their complete, unredacted investigative file in relation to the April 12, 2016 accident.

11. The SIU has produced large parts of its files (approximately 78 out of 144 documents) and opposes the production of other documents.

12. The SIU prepared an “Index of Documents” (the “Index”) listing all the documents contained in the SIU file and its position on production. The Index, along with copies of the documents to which the SIU consented to produce were provided to the moving parties by removable digital storage drive. A copy of the Index is attached to this endorsement.

13. The moving parties, while acknowledging that they have received components of the SIU investigative file, seek the balance of the SIU’s file. They argue that:

a. The documents sought contain information relevant to a material issue in the actions, namely the liability of the OPS and its officers; and

b. It would be unfair to require the moving party to proceed to trial without having discovery of the documents and information in possession of the SIU.

14. The SIU opposes the production of:

a) Witness interviews and witness statements where no consent has been provided by the witness (items 20, 22, 23, 26-28, 30-32,109, 122 B, D, E, G, H, I, K, L, M of the Index);

b) Documents that are derivative of other sources of information that have already been produced (items 5, 33-34, 37);

c) Documents that are administrative in nature and/ or derivative of other sources of information (items 1 - 2; 107-108);

d) Documents that are not relevant to a material issue in the actions (items 6-18, 41-50, 52-61, 100);

e) Documents available from another source which is available to the moving parties. (items 39,101-103 and 129).

15. The SIU resists the production order sought arguing that the moving parties have not established either that the documents are relevant to a material issue in the actions or that it would be unfair to proceed to trial without them as required pursuant to rule 30.10. The SIU argues that in the event that the court finds that the requirements of rule 30.10 have been satisfied, a proper balancing of the competing interests, favours non-production due to the confidentiality of its investigative materials particularly with respect to the witnesses who have not consented to the use of their statements in the two actions.

DISPOSITION

16. For the reasons that follow, the motions with respect to the production of the witness interviews are granted. The motions with respect to the balance of the documents remaining at issue are dismissed.

LAW AND ANALYSIS

17. The production of documents from non-parties is governed by rule 30.10 which provides as follows:

30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

18. The relief on a motion under rule 31.10 is discretionary and the onus is on the moving party to satisfy the court on both branches of the test.

19. The leading authority on the test to be applied on a motion under rule 30.10 is the decision of the Court of Appeal in Ontario (Attorney General) v. Stavro.[^1]

In Stavro, the court held that:

a) Production from a non-party is the exception and not the rule.[^2]

b) The relevancy of the documents sought to be produced from the non-party must first be established. The fairness assessment is only engaged after the documents are found to be relevant.[^3]

c) The “fairness assessment”, in Rule 30.10(1)(b) includes consideration of the following factors:

i- The importance of the documents in the litigation;

ii- Whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the plaintiff;

iii- Whether the discovery of the defendants with respect to the issues to which the documents are relevant is adequate and, if not, whether responsibility for that inadequacy rests with the defendants;

iv- The position of the non-parties with respect to the production

v- The availability of the documents or their informational equivalent from some other source which is accessible to the plaintiff’s; and

vi- The relationship of the non-parties from whom production is

sought, to the litigation and the parties to the litigation.[^4]

20. The list of factors to be considered outlined in Stavro is not exhaustive. In N.G. v. Upper Canada College,[^5] Justice Lang stated that “the public interest … is an important question to consider in the context of the Rule 30.10 “fairness” criterion.”[^6]

A- Witness Statements and Interviews

21. The moving parties seek production of all the civilian and police officer statements. They seek un-redacted statements from any witnesses to the accident or to the circumstances and events surrounding the accident, including interview reports, supplementary interview reports and witness statements.

22. The SIU investigation consisted of interviews with nine civilian witnesses and five witness officers. The identities of the civilian witnesses and the witness officers have been provided to the moving parties.

23. Following the receipt of the motion, the SIU attempted to contact the civilian witnesses to determine if they would consent to the release of their statement. Of the nine civilian witnesses contacted, three provided their consent to the release of their statement, one provided consent to “anyone except the police” and the others have either not responded or could not be contacted.

24. The SIU opposes the request by the moving parties to produce the remainder of the witness statements on the basis that the authors have not provided consent to their release.

25. The SIU argues that civilian witnesses were given an assurance of confidentiality by the SIU before they provided their statements. That confidentiality promise provided in part that “Anything you tell us will be kept confidential by the SIU, unless you consent to its release or unless we have to release it by operation of law”. The SIU submits that the witness confidentiality assurance is a key component to building rapport and securing an interview with witnesses who may fear the consequences of their statements being disclosed to the police.

26. The SIU contends that the balancing of competing interests, including the public interest, militates against ordering production of the remaining civilian witness statements absent the consent of the witness.

27. One of five OPS witness officer statements and associated audio recording has been produced because the officer is a party to the action and has consented to the motion through counsel. The statements of the four remaining witness officers have not been produced because:

a) The SIU has not received their consent to release their statement; and

b) Each witness officer has been provided with a copy of their statement. The statements could conceivably be obtained through the defendant OPS or via an undertaking at discovery.

28. The moving parties argue that the witness statements are relevant to the issue of liability of the OPS and its officers. Furthermore, much of the information in the SIU file cannot be otherwise obtained by the plaintiffs and information obtained from witnesses will not be as reliable, given the passage of time since the collision.

29. In cases similar to the one before me, the courts have found that the statements of witnesses are relevant to the issue of liability as against the defendants.

30. In Stafford v. Adams[^7] the plaintiff sought production of witness statements obtained by the SIU investigators during its investigation of a pursuit by Toronto Police of a vehicle driven by the Defendant which collided with the Plaintiff’s vehicle. As stated by Stewart J. in Stafford:[^8]

“… it was obvious at the onset that any statements made by participants or witnesses to the high-speed chase which ended in a collision would probably be relevant to the issues of liability raised against all defendants.”

31. McGillivary v. Toronto Police Services Board,[^9] was a wrongful death action involving the death of Charles McGillivary following a struggle with two police officers. The incident was immediately investigated by the SIU. The plaintiffs brought a motion pursuant to rule 30.10 to produce witness interviews and statements. Master Muir found the witness statements to be relevant to the issue of the alleged negligence of the Subject Officers and ordered production.[^10]

32. The present actions arise out of a high-speed chase which ended in a fatal collision. In my opinion, it is obvious the witness statements of both the civilian witnesses and the officer witnesses are relevant to the issue of liability of the OPS and the subject officers.

33. In my view, the plaintiffs have satisfied the first branch of the test and have established that the witness statements sought to be produced are relevant to a material issue in the action. In considering the factors outlined in Stavro, I also find that the second branch of the test, the fairness assessment, has been satisfied and it would be unfair to require the moving party to proceed to trial without having discovery of the document for the following reasons:

1. The witness statements will likely form an important component of the evidence necessary for the just resolution of the proceedings.

2. In my view, the production of the witness statements at the discovery stage rather than at trial is important so that all parties can assess their respective positions and explore the possibility for early resolution. The parties have yet to proceed to discovery or mediation. As held by Master Muir in McGillivary:[^11] “ The unfairness referenced in Rule 30.10 is not simply unfairness at trial. It also includes unfairness in proceeding to trial. It is my view that it would be unfair for the parties to proceed to trial without an effective mediation session. These witness statements are an important part of that process. As the Court of Appeal noted in D.P. v. Wagg, [2004] O.J. No. 2053 (C.A.) at paragraph 53 “[s]ociety has an interest in seeing that justice is done in civil cases as well as criminal cases, and generally speaking that will occur when the parties have the opportunity to put all relevant evidence before the court”.

3. In my view, the information contained in the witness interviews likely extends beyond information that can be obtained through discovery of the defendants.

4. Although the SIU argues that the witness officers have obtained a copy of their statements, I am satisfied that the moving parties have no direct access to their statements or statements from the civilian witnesses through another source.

34. I turn now to the objection to production raised by the SIU due to the public interest concern outlined in paragraphs 25 and 26 above. The courts have considered the confidentiality assurance given to the witnesses by the SIU investigators and have found that the assurance is not absolute and the phrase “release it by operation of law” would include an order of this court following the consideration of the relevant legal principles.[^12] Further, the public policy evidence of the SIU must be robust to justify the non-disclosure of documents to which the parties are otherwise entitled under Rule 30.10.[^13]

35. I am unable to conclude from the public policy evidence of the SIU that the efficacy of the SIU investigations is dependent on a qualified assurance of confidentiality. The evidence is general in nature and lacking in detail. In balancing the needs of the moving parties for access to the witness statements and interviews against the interests of the non-party and the public, I find that the balance favours the moving parties. The witness statements are relevant to the issues of liability and would relate to the events surrounding the collision. The statements are important to the plaintiffs’ claims and will assist with the determination of what occurred on April 12, 2016. This, in my view, outweighs the SIU’s policy concerns and purported privacy interests of the witnesses that provided statements to the SIU. The productions are, of course, subject to the protection of the deemed undertaking rule.

Balance of Documents at Issue

36. Aside from the witness statements, the moving parties have failed to identify which documents in the SIU’s investigative file that have not been produced are relevant and why. Simply assuming relevance of all documents in the SIU file is not enough to satisfy the requirements of rule 30.10[^14]

37. Moreover, according to the SIU, many of the documents listed in the Index are derivative of other sources of information that have already been produced or documents available from another source which is available to the moving parties. The moving parties have not provided evidence to the contrary.

38. In Stein v. Windsor Police Services Board[^15] the Court of Appeal of Ontario ruled that the SIU Director’s Report is derivative of other information in the file and not relevant. The court reversed the lower court’s order to produce the report. In my opinion, this reasoning applies to much of the information in the file that has not been produced. Further, it appears to me that many of the documents are administrative in nature and there is no evidence before me why these documents would be relevant to a material issue in the actions.

39. In my view, the moving parties are not entitled to the SIU’s complete and unredacted file as of right. As held by this court, the SIU is not “an information collection agency for individuals in civil actions”[^16]

40. One must remember that production from a non-party is exceptional and the onus is on the moving parties to show that the documents sought are relevant to a material issue in the action. In my view, the plaintiffs have not met their onus and have not satisfied the first branch of the test with respect to the balance of the documents remaining at issue. Given my conclusion, it is unnecessary to address the second branch of the test relating to unfairness.

CONCLUSION

41. Production of the following portions of the Special Investigations Unit (“SIU”) file for the motor vehicle accident that occurred on April 12, 2016 sought by the Plaintiffs in both action numbers 17-72772 and 18-75982 is hereby ordered:

a- Interview synopses of Constables Colin Bowie, Jonathan Kenney, Kristopher Montgomery and Adam Munro (Index of Documents of the Special Investigations Unit (“Index”) items 20, 27, 30 and 31);

b- Interview synopses of civilian witnesses M.D., E.E., K.K., L.L. and C.S., (Index items 22, 23, 26, 28, 32);

c- Audio witness statements of Constables Colin Bowie, Jonathan Kenney, Kristopher Montgomery and Adam Munro (Index items 122 B., H, K, L);

d- Audio witness statements of civilian witnesses M.D., E.E., K.K., L.L. and C.S. (Index items 122 D, E, G, I, and M) and

e- Scene drawing by civilian witness M.D. (Index item 109).

42. The records produced and copies provided to counsel for the Plaintiffs shall be used by counsel for the sole purpose of these two civil actions, and for no other purpose, and the information may only be used for the purposes of these civil actions and by the parties to the litigation for the full and fair disposition of the issues in those proceedings, and may not be otherwise disclosed or produced to any other person.

43. The parties directly involved in the litigation in these matters shall not disclose the records produced and copied or any information there from to any person who does not have a direct interest in the civil proceedings; except:

a- to the Court for the litigation of these matters or,

b- to an expert retained by the parties or appointed by the Court for purposes of rendering an opinion or doing an assessment.

44. The SIU shall produce the documents pursuant to this Order to the Plaintiffs in both actions within 60 days of receipt of this Order.

45. The motion with respect to the balance of the documents remaining at issue is dismissed.

46. As there was divided success on the motions, there shall be no costs.

Master Fortier

DATE: June 17, 2020

Index of Documents of the Special Investigations Unit (“SIU”) - File No. 16-OVD-95

Record No.

Record Description

Position on Production

Intake Shapshot Report

Not relevant to a material issue in the actions – information is administrative and derivative of other sources in the file

Case Closure / Notification Form

Not relevant to a material issue in the actions – information is administrative and derivative of other sources in the file

SIU Director’s Decision Letter to Chief of Ottawa Police dated April 21, 2017

Yes – on consent

SIU Director’s Decision Letter to Attorney General for Ontario dated April 21, 2017

Yes – on consent

SIU Director’s Report

Not relevant, pursuant to Stein v. Windsor Police Services Board, 2013 ONCA 323 (and privileged)

Designation Notice to Constable Colin Bowie

(pursuant to Ontario Regulation 267/10)

Not relevant to a material issue in the actions

Designation Notice to Constable Timothy Cowlie

Not relevant to a material issue in the actions

Designation Notice to Constable Salomon Gutierrez

Not relevant to a material issue in the actions

Designation Notice to Constable Tyler Hawkins

Not relevant to a material issue in the actions

Designation Notice to Sergeant Stephen Hodgson

Not relevant to a material issue in the actions

Designation Notice to Constable Jonathan Kenney

Not relevant to a material issue in the actions

Designation Notice to Constable Robert Laplante

Not relevant to a material issue in the actions

Designation Notice to Constable Wendy Marcuccio

Not relevant to a material issue in the actions

Designation Notice to Constable Kristopher Montgomery

Not relevant to a material issue in the actions

Designation Notice to Constable Adam Munro

Not relevant to a material issue in the actions

Designation Notice to Constable Scott Pearce

Not relevant to a material issue in the actions

Designation Notice to Constable Alain Rochette

Not relevant to a material issue in the actions

Designation Notice to Constable Brenna Smith

Not relevant to a material issue in the actions

Interview Synopsis of Civilian Witness A.B.

Yes – on consent

Interview Synopsis of Constable Colin Bowie

No – the officer has not consented to the release of the statement and in any event, may obtain a copy of it pursuant to subsection 8(3) of Ontario Regulation 267/10

Interview Synopsis of Civilian Witness C.C.

Yes – on consent

Interview Synopsis of Civilian Witness M.D.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release their statement

Interview Synopsis of Civilian Witness E.E.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release their statement

Interview Synopsis of Sergeant Stephen Hodgson

Yes – on consent

Interview Synopsis of Civilian Witness J.J.

Yes – on consent

Interview Synopsis of Civilian Witness K.K.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release their statement

Interview Synopsis of Constable Jonathan Kenney

No – the officer has not consented to the release of the statement and in any event, may obtain a copy of it pursuant to subsection 8(3) of Ontario Regulation 267/10

Interview Synopsis of Civillian Witness L.L.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release their statement

Interview Synopsis of Civilian Witness A.M.

Yes – on consent

Interview Synopsis of Constable Kristopher Montgomery

No – the officer has not consented to the release of the statement and in any event, may obtain a copy of it pursuant to subsection 8(3) of Ontario Regulation 267/10

Interview Synopsis of Constable Adam Munro

No – the officer has not consented to the release of the statement and in any event, may obtain a copy of it pursuant to subsection 8(3) of Ontario Regulation 267/10

Interview Synopsis of Civilian Witness C.S.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release their statement

Follow-up Report – SIU Summary of Automatic Vehicle Location Data for involved Police Vehicles

No – the source of the information, namely the GPS location data, is being produced on consent, and the SIU’s summary thereof is not relevant

Folllow-up Report – Summary of Dispatch Recordings obtained from Ottawa Police Service

No – the source of the information, namely the audio of the dispatch recordings, is being produced on consent, and the SIU’s summary thereof is not relevant

Follow-up Report of SIU Investigator David Robinson dated May 8, 2016

Yes – on consent

Follow-up Report of SIU Investigator Leslie Noble dated July 12, 2016

Yes – on consent

Follow-up Report dated October 14, 2016 – Summary of Goodyear Closed Circuit Television Cameras (“CCTV”)

No – the source of the information, namely the Goodyear security camera video, is being produced on consent, and the SIU’s summary thereof is not relevant

Follow-up Report dated October 25, 2016 – Summary of City of Ottawa Traffic Camera Video Footage

Yes – on consent (the summary report contains information that assists with the relevance of the video)

Follow-up Report dated October 14, 2016 – Summary of Royal Canadian Mounted Police (“RCMP”) building security CCTV

No – the source of the information, namely the RCMP security camera video footage, may be available, and the SIU’s summary thereof is not relevant

Follow-up Report dated June 1, 2016 regarding security camera video of Salvation Army Ottawa Booth Center

Yes – on consent (the video does not play and therefore the source document is not available)

Follow-up Report dated February 19, 2017 regarding passing of Enrico Staniscia and next-of-kin

Not relevant to a material issue in the actions

Letter from SIU to Ottawa Police Service dated April 14, 2016, regarding confirmation and notification of investigation and request for records

Not relevant to a material issue in the actions

Letter from SIU to Ottawa Police Service dated April 14, 2016, regarding re-designation of Constable Salomon Gutierrez

Not relevant to a material issue in the actions

Letter to the SIU dated April 20, 2016, from legal counsel to Constable Salomon Gutierrez regarding designation

Not relevant to a material issue in the actions

Interview request letter to Wendy Marcuccio dated May 17, 2016

Not relevant to a material issue in the actions

Request letter to Coroner dated May 25, 2016, regarding center of forensic sciences and pathologist reports

Not relevant to a material issue in the actions

Duplicate of Record #46

Not relevant to a material issue in the actions

Coroner’s Authority to Seize During an Investigation dated October 11, 2016

Not relevant to a material issue in the actions

Letter to SIU dated November 21, 2016, from Lesley Joseph, legal counsel to Meghan Demers

Not relevant to a material issue in the actions – counsel already has a copy

Coroner’s Authority to Seize During an Investigation dated December 23, 2016

Not relevant to a material issue in the actions

Letter from SIU to Coroner dated January 11, 2017

Yes – on consent

Letter to SIU dated January 17, 2017, from Lesley Joseph, legal counsel to Meghan Demers

Not relevant to a material issue in the actions – counsel already has a copy

Letter from SIU to Lesly Joseph dated February 6, 2017

Not relevant to a material issue in the actions – counsel already has a copy

Letter to SIU dated May 2, 2017, from Lesly Joseph, legal counsel to Meghan Demers

Not relevant to a material issue in the actions – counsel already has a copy

Internal SIU e-mail dated May 25, 2017, regarding member of public request for file

Not relevant to a material issue in the actions

Letter from SIU to Coroner dated May 26, 2017 regarding SIU Director’s Report and Enrico Staniscia

Not relevant to a material issue in the actions

Same, regarding Alexander Cross-St. Pierre

Not relevant to a material issue in the actions

Letter from SIU Counsel Joseph Martino dated May 26, 2017, to Lesly Joseph, counsel for Meghan Demers

Not relevant to a material issue in the actions – counsel already has a copy

Letter from Ottawa Police Chief to SIU dated May 23, 2017, regarding file closure

Not relevant to a material issue in the actions

Letter from Ottawa Police Service to SIU dated September 28, 2017, regarding investigation pursuant to section 11 of Ontario Regulation 267/10

Not relevant to a material issue in the actions

Letter from SIU to Ottawa Police dated October 5, 2017, responding to section 11 investigation letter

Not relevant to a material issue in the actions

Witness Statement of K.K. taken by Constable Adam Munro

Yes – on consent

Audio / Video Extract Request from Ottawa Police Service to RCMP

Yes – on consent

Ottawa Police Service Computer Aided Dispatch Report

Yes – on consent

Crash Data Retrieval Report for Pontiac G6

Yes – on consent

Ottawa Police Service – Detailed Call Summary

Yes – on consent

Global Positioning Satellite Data – Constable Gutierrez

Yes – on consent

Global Positioning Satellite Data – Constable Marcuccio

Yes – on consent

Global Positioning Satellite Data – Sergeant Hodgson

Yes – on consent

Narrative Text Hardcopy – Constable Colin Bowie

Yes – on consent

Narrative Text Hardcopy – Constable Timothy Cowley

Yes – on consent

Narrative Text Hardcopy – Constable Tyler Hawkins

Yes – on consent

Narrative Text Hardcopy – Sergeant Stephen Hodgson

Yes – on consent

Narrative Text Hardcopy – Constable Jonathan Kenney

Yes – on consent

Narrative Text Hardcopy – Constable Robert Laplante

Yes – on consent

Narrative Text Hardcopy – Constable Kristopher Montgomery

Yes – on consent

Narrative Text Hardcopy – Constable Adam Munro

Yes – on consent

Narrative Text Hardcopy – Constable Brenna Smith

Yes – on consent

Ottawa Police Service Policy No. 8.08 – Suspect Apprehension Pursuits

Yes – on consent

Training Record – Transcript Report – Constable Salomon Gutierrez

Yes – on consent

Training Record – Employee Profile – Constable Salomon Gutierrez

Yes – on consent

Training Record – Transcript Report – Constable Wendy Marcuccio

Yes – on consent

Training Record – Employee Profile – Constable Wendy Marcuccio

Yes – on consent

Witness Statement of A.B. taken by Constable Kristopher Montgomery of Ottawa Police

Yes – on consent

Witness Statement of C.C. taken by Constable Tyler Hawkins of Ottawa Police

Yes – on consent

Witness Statement of C.S. taken by Constable Adam Munro of Ottawa Police

Yes – on consent

Witness Statement of E.E. taken by Constable Timothy Cowley of Ottawa Police

Yes – on consent

Witness Statement of J.J. taken by Constable Brenna Smith of Ottawa Police

Yes – on consent

Memo Book Notes – Constable Brenna Smith

Yes – on consent

Memo Book Notes – Constable Colin Bowie

Yes – on consent

Memo Book Notes – Constable Timothy Cowley

Yes – on consent

Memo Book Notes – Constable Tyler Hawkins

Yes – on consent

Memo Book Notes – Sergeant Stephen Hodgson

Yes – on consent

Memo Book Notes – Constable Jonathan Kenney

Yes – on consent

Memo Book Notes – Constable Robert Laplante

Yes – on consent

Memo Book Notes – Constable Kristopher Montgomery

Yes – on consent

Memo Book Notes – Constable Adam Munro

Yes – on consent

Memo Book Notes – Constable S. Pearce

Yes – on consent

Memo Book Notes – Constable Alain Rochette

Yes – on consent

Authorization for Release of Medical Information – Meghan Demers

Not relevant to a material issue in the actions

Medical Records of Meghan Demers – The Ottawa Hospital

No – these records may be obtained directly from the medical service provider

Preliminary Autopsy Findings – Ottawa (Eastern Ontario Regional Forensic Pathology Unit)

No – these records may be obtained directly from the medical service provider

Report of Postmortem Examination and Toxicology Report of Alexander Cross-St. Pierre

No – these records may be obtained directly from the medical service provider

SIU Property Status Review dated May 5, 2016

Yes – on consent

SIU Property Status Review dated June 8, 2017

Yes – on consent

SIU Witness List

Yes – but with redactions of personal information

Internal SIU E-mails regarding receipt of records

Not relevant to a material issue in the actions

Courier slip for return of cell phone to Meghan Demers

Not relevant to a material issue in the actions

Scene drawing by civilian witness M.D.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release this document

SIU News Release Initial – English

Yes – on consent

SIU News Release Initial – French

Yes – on consent

SIU News Release Final – English

Yes – on consent

SIU News Release Final – French

Yes – on consent

SIU Investigator Notes – Pasha McKellop

Yes, with redactions of information unrelated to this case

SIU Investigator Notes of Leslie Noble and Rolf Prisor

Yes – but with redactions of information unrelated to this case; information for which a confidentiality assurance was provided, and consent has not been obtained; personal information; privileged information; and information obtained from a police service under a statutory duty to cooperate

SIU Investigator Notes – David Robinson

Yes – but with redactions of information unrelated to this case; information for which a confidentiality assurance was provided, and consent has not been obtained; personal information; privileged information; and information obtained from a police service under a statutory duty to cooperate

SIU Investigator Notes – Gary Smith

Yes – but with redactions of information unrelated to this case; information for which a confidentiality assurance was provided, and consent has not been obtained; personal information; privileged information; and information obtained from a police service under a statutory duty to cooperate

SIU Investigator Notes – Winslow Taylor

Yes – but with redactions of information unrelated to this case; information for which a confidentiality assurance was provided, and consent has not been obtained; personal information; privileged information; and information obtained from a police service under a statutory duty to cooperate

SIU Investigator Notes – Ralph Mahar

Yes – but with redactions of information unrelated to this case; information for which a confidentiality assurance was provided, and consent has not been obtained; personal information; privileged information; and information obtained from a police service under a statutory duty to cooperate

Ottawa Police Service Dispatch Audio Recordings

Yes – on consent

Ontario Provincial Police scene photographs

Yes – on consent

Audio Witness Statements

A.

A.B.

Yes – on consent

B.

Constable Colin Bowie

No – the officer has not consented to the release of the statement and in any event, may obtain a copy of it pursuant to subsection 8(3) of Ontario Regulation 267/10

C.

C.C.

Yes – on consent

D.

M.D.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release their statement

E.

E.E.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release their statement

F.

Sergeant Stephen Hodgson

Yes – on consent

G.

K.K.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release their statement

H.

Constable Jonathan Kenney

No – the officer has not consented to the release of the statement and in any event, may obtain a copy of it pursuant to subsection 8(3) of Ontario Regulation 267/10

I.

L.L.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release their statement

J.

A.M.

Yes – on consent

K.

Constable Kristopher Montgomery

No – the officer has not consented to the release of the statement and in any event, may obtain a copy of it pursuant to subsection 8(3) of Ontario Regulation 267/10

L.

Constable Adam Munro

No – the officer has not consented to the release of the statement and in any event, may obtain a copy of it pursuant to subsection 8(3) of Ontario Regulation 267/10

M.

C.S.

No – the SIU provided an assurance of confidentiality and has been unable to obtain the witness’s consent to release their statement

Autopsy Photographs

*Caution – extremely graphic – discretion is advised

Yes – on consent

SIU Exhibit Photographs

Yes – on consent

SIU Scene Photographs

Yes – on consent

SIU Vehicle Photographs

Yes – on consent

Salvation Army CCTV Video Footage (does not play)

Yes – however, the video file does not play, and the parties may contact the Salvation Army for further information

Goodyear CCTV Video Footage

Yes – on consent

RCMP Security Camera Video (special player required)

No – this record was provided by the RCMP in expectation that it would only be used for the purposes of the SIU investigation; the moving parties are free to seek production of the video directly from the RCMP, or the RCMP’s consent for the SIU to produce it

Traffic Camera Footage

Yes – on consent

SIU Scene Video Footage

Yes – on consent

SIU Pursuit Route Video

Yes – on consent

[^1]: [1995] O.J. No. 3136 (C.A.).

[^2]: (Stavro at para 13).

[^3]: Stavro at paras. 6 and 16.

[^4]: Stavro at para. 15.

[^5]: [2004] O.J. No. 1011 (Div.Ct.)

[^6]: N.G. at para. 14

[^7]: 2009 40561 (ON SC)

[^8]: at para. 10

[^9]: 2014 ONSC 865

[^10]: McGillivary at para. 15

[^11]: at para 16

[^12]: Bernatchez v. Barrie Police Services Board and Henderson, 2019 ONSC 4607 at para 25; McGillivary at para. 38; Stafford at para. 13.

[^13]: McGillivary at para. 38

[^14]: Marshall et al and Estate of Sheldon Gladders, 2014 ONSC 2821 at para 35.

[^15]: 2013 ONCA 323 at para 6

[^16]: Chiarella v. Simon, 2007 2648 at para 14