NEWMARKET COURT FILE NO.: CR-20-5911-00MO
DATE: 20200921
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ALEXANDER VINOGRADSKY and NAUM VINOGRADSKY
Defendants/Applicants
Pamela Larmondin, for the Attorney General of Ontario
Joseph Selvaratnam and Jennifer Campitelli, for the Public Prosecution Service of Canada
Rachel Lichtman for Alexander Vinogradsky
Aaron Wine for Naum Vinogradsky
HEARD: August 27, 2020 (by videoconference)
Dawe J.
I. Overview
[1] The primary Applicant Alexander Vinogradsky is one of over fifty people who have been charged with criminal offences arising out of a York Regional Police investigation known as “Project Platinum”. Different groups of the Project Platinum defendants are facing different set of charges, some of which are being prosecuted by the provincial Crown and others by the federal Crown.
[2] The two Crown agencies are assembling an initial electronic disclosure brief that they plan to provide to all of the charged defendants. This disclosure will include material that directly or indirectly reveals both Mr. Vinogradsky’s and his parents’ home addresses.
[3] Mr. Vinogradsky, who has had a previous attempt made on his life, believes that disclosing these addresses will endanger him and his family. Since his arrest in May 2020 his counsel has been pressing the Crowns to edit the address information out of the disclosure briefs that the other defendants will be receiving. However, the Crowns have refused to make these redactions, taking the position that they cannot lawfully do so, and that they would not do so even if they could.
[4] Mr. Vinogradsky accordingly applies to this Court for an order requiring the Crowns to redact information that would reveal these addresses from the disclosure. He frames his application as a request for a s. 24(1) Charter remedy, arguing that disclosing the addresses would violate his s. 7 Charter rights. Alexander Vinogradsky’s father Naum Vinogradsky, who himself faces several charges arising out of the Project Platinum investigation, joins the application in part, seeking to have his own home address redacted.
[5] Since the application was originally brought by Alexander Vinogradsky alone and was only belatedly joined by his father, I will refer to Alexander Vinogradsky in my reasons as “Mr. Vinogradsky” and will refer to Naum Vinogradsky by his full name.
[6] The Crowns vigorously oppose the application on multiple grounds. First, they argue that Mr. Vinogradsky and his father have not shown that disclosing the address information would actually jeopardize their safety. Second, they argue that even if disclosing this information would put one or both of them in danger, the address information cannot be redacted from the disclosure brief without causing unfairness to the other defendants. Third, they resist the proposed order on policy grounds, arguing that it would encourage a prolixity of disclosure-related litigation, both in the Project Platinum prosecutions and in future cases, and pointing to the practical difficulties such an order will create.
[7] The Crowns have agreed not to distribute the unredacted electronic disclosure briefs containing the address information pending the outcome of this application.[^1]
[8] For the reasons set out below, I am satisfied that there is good cause to believe that Alexander Vinogradsky’s life is presently in danger. I am also satisfied that the danger he faces would be materially increased if the Crown were to reveal his home address, and that doing so might also place his spouse and children in jeopardy. I am accordingly satisfied that the proposed disclosure of his own home address engages Mr. Vinogradsky’s s. 7 Charter rights to life and security of the person.
[9] As I will explain, I am also satisfied that disclosing his address at this very early stage of the prosecutions would not advance the objectives of the Stinchcombe disclosure rules. There is no reason at this time to think that any of the other Project Platinum defendants will actually need to know Mr. Vinogradsky’s precise home address in order to make full answer and defence to the charges against them. While the information may not be “clearly irrelevant”, since it is theoretically possible that some issue could arise in another defendant’s case that makes Mr. Vinogradsky’s home address relevant to that case, at this point this possibility is purely hypothetical and seems unlikely to materialize.
[10] Moreover, I do not agree that disclosing Mr. Vinogradsky’s address is necessary to maintain a situation of parity between the different defendants, some of whose home addresses the Crowns also apparently intend to disclose. There is no evidence before me that any of the other Project Platinum defendants believe that disclosing their own addresses would endanger their safety, or that any of them have asked the Crowns to redact this information, and none have brought their own application seeking to have this information redacted.
[11] In short, disclosing Mr. Vinogradsky’s home address at this early stage of the prosecutions would put his life and safety in increased danger without advancing any compelling state objective. It would in my view interfere with his protected s. 7 interests in a manner that can properly be characterized as “arbitrary” and contrary to the principles of fundamental justice. It follows that I am satisfied that Mr. Vinogradsky has established an anticipated breach of his s. 7 Charter rights and is entitled to a remedy to prevent the breach from happening.
[12] However, I have reached a different conclusion with respect to Mr. Vinogradsky and his father Naum Vinogradsky’s s. 7 claims in relation to the Crowns’ proposed disclosure of Naum Vinogradsky’s home address. As I will explain, I am not satisfied that they have established that disclosing this address would put either of their lives or safety at increased risk, such that their s. 7 rights to life and security of the person would be engaged. It follows that they cannot claim a preventative s. 24(1) Charter remedy to bar this proposed disclosure.
II. Factual background
A. The “Project Platinum” investigation and charges
[13] The York Regional Police and several other police agencies have been conducting an extensive joint investigation into alleged criminal activity linked to the automobile towing industry in the Greater Toronto Area. This investigation, styled “Project Platinum”, has centred on a towing company owned by Alexander Vinogradsky. The Crowns contend that Mr. Vinogradsky’s towing company and his various other related business ventures constitute a criminal organization, and allege that a number of very serious criminal offences have been committed at this criminal organization’s direction or for its benefit.
[14] The Project Platinum investigation has resulted in numerous charges being laid against multiple defendants, including against both Mr. Vinogradsky and his father Naum Vinogradsky. The charges against Alexander Vinogradsky include several criminal organization offences as well charges of conspiracy to commit fraud and arson. He is being prosecuted by the provincial Crown, but some of the other Project Platinum defendants who face only drug charges are being prosecuted by the federal Crown.
[15] Alexander Vinogradsky was arrested in May 2020, at which time the police also executed search warrants at both his and his parents’ homes and seized a number of items from both locations. Among other things, during the search of Mr. Vinogradsky’s parents’ home the police apparently found and seized two firearms and some ammunition. This has led to Alexander Vinogradsky’s father Naum Vinogradsky being charged with three counts of unauthorized possession of a firearm. Naum Vinogradsky does not currently face any other criminal charges.
B. The proposed disclosure
[16] The provincial and federal Crowns are working together to prepare an initial electronic disclosure brief that they intend to give to each of the Project Platinum defendants. Although different defendants and groups of defendants are facing different sets of charges, the Crowns plan to give every defendant the same electronic disclosure brief.
[17] This proposed disclosure will include multiple documents that refer to or otherwise reveal Mr. Vinogradsky and/or his parents’ home addresses. For instance, the disclosure will include copies of the warrants the police obtained to search the two residences, each of which sets out the applicable address. Mr. Vinogradsky’s parents’ address also appears in a Part VI Criminal Code wiretap authorization. One or both of the addresses also appear in other police documents, including notes and surveillance reports, some of which also include other information that could reveal the locations of the two residences indirectly (e.g., references in police surveillance reports to nearby streets).
III. Procedural background
[18] At Alexander Vinogradsky’s bail hearing on May 20, 2020, his counsel Ms. Lichtman first raised the concern that disclosing Mr. Vinogradsky’s address would jeopardize his safety. She continued to raise this issue with the Crown in subsequent correspondence. In a letter dated August 4, 2020, counsel for the provincial Crown, Ms. Larmondin, explained that the Crowns were not prepared to redact the address information. Ms. Larmondin noted that the addresses appeared in a number of court orders and took the position that “[a]bsent an order from the Court, the Crown does not have any authority to redact these judicial orders”.
[19] More generally, Ms. Larmondin noted some of the practical difficulties that would be presented by the proposed redactions and stated:
[T]he Crown is not satisfied that you have provided any authority, statutory or otherwise, that would allow the redactions that you are suggesting and direction from the Court is required before these materials can be redacted.
[20] Following judicial pre-trials in both the Ontario Court of Justice and the Superior Court of Justice, the parties agreed that Mr. Vinogradsky would bring an application in this Court, pending which the Crown would not distribute the electronic disclosure briefs to any of the Project Platinum defendants, including to Mr. Vinogradsky and his father. Due to the COVID-19 public health crisis the application was scheduled to be heard by Zoom videoconference.
[21] The provincial and federal Crowns have filed a joint factum in response to Mr. Vinogradsky’s application and advance a common position, although counsel for both Crown agencies appeared and each made oral submissions.
[22] Ms. Larmondin advised me that at the judicial pre-trial the Regional Senior Justice directed that Naum Vinogradsky be granted party status in the application in this Court. Unfortunately, he seems to have understood only that he was being directed to attend the hearing of the application by videoconference, but not to have realized that he was being given leave to join his son’s application as a party. As a result of this confusion, he did not file any application materials of his own or take any other steps to formally join the application prior to the hearing, and he and his counsel never received complete copies of the other parties’ application materials.
[23] Naum Vinogradsky nevertheless appeared at the hearing by videoconference with his counsel, Mr. Wine, at which time I permitted him to join the application as a party and allowed Mr. Wine to make oral submissions.
IV. Analysis
[24] As noted previously, Alexander Vinogradsky frames his application as a request for an anticipatory s. 24(1) Charter remedy, contending that the proposed disclosure of his and his parents’ home addresses would breach his s. 7 Charter rights. Naum Vinogradsky joins the application in part, insofar as it relates to the proposed disclosure of his own home address.
[25] Since Charter rights are personal, each of the applicants can only claim a s. 24(1) remedy if he establishes an anticipated breach of his own Charter rights. I will accordingly address their Charter claims separately.
A. Alexander Vinogradsky’s s. 7 Charter claim
[26] Mr. Vinogradsky bears the burden of demonstrating on a balance of probabilities that the proposed Crown disclosure to which he objects would infringe his s. 7 Charter rights. Section 7 provides that:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Mr. Vinogradsky must accordingly first show that the Crown disclosing his and/or his parents’ home addresses would deprive him of one of his protected s. 7 rights: in this case, his rights to life and security of the person. If he clears this initial hurdle, he must then demonstrate that the deprivation does not accord with the principles of fundamental justice.
1. Would disclosing Mr. Vinogradsky’s and/or his parents’ addresses engage his protected s. 7 Charter rights to life and security of the person?
[27] The s. 7 right to life “is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly”: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 at para. 62. The distinct s. 7 right to security of the person is engaged by “state interference with bodily integrity and serious state-imposed psychological stress”: R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30 at p. 56. Although the rights to life and security of the person are analytically distinct they often overlap, since state action that puts a person’s life “potentially at risk” can also expose the person to a risk of non-fatal bodily harm, or cause him or her to experience significant psychological stress: see, e.g., United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7 at para. 59.
[28] In this case, Mr. Vinogradsky maintains that he has good reason to believe that he has enemies who want to kill him. He believes that disclosing his and/or his parents’ home addresses will make it easier for his enemies to locate him, and that this will accordingly expose him to increased risks of death and bodily harm, as well as to elevated psychological stress arising from his increased fear for his own safety and for that of his spouse and children.
[29] The fact that Mr. Vinogradsky fears that he will be killed or injured by non-state third parties, rather than directly by state agents, does not bar him from relying on s. 7: see Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at paras. 79-92. However, he must show that there is a “sufficient causal connection” between the state action he challenges – here, the disclosure of the address information by the Crown – and the consequences he fears. As McLachlin C.J.C. explained in Bedford, supra, at para. 76:
A sufficient causal connection standard does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 21). A sufficient causal connection is sensitive to the context of the particular case and insists on a real, as opposed to a speculative, link.
[30] In the circumstances here, Mr. Vinogradsky must establish two things. First, he must show that there are objective grounds to believe that his life and safety are in danger. Second, he must show that the Crowns disclosing his and/or his parents address is likely to materially increase this danger.
[31] As I will now explain, I find that Mr. Vinogradsky has met his burden on both of these issues, at least in relation to the disclosure of his own home address. On the first point, it is undisputed that unidentified assailants tried to kill him in April 2019. In my view this makes it entirely reasonable for Mr. Vinogradsky to believe that his life and safety are still in danger. On the second point, I am satisfied that Mr. Vinogradsky has shown that the danger to his life and safety is likely to be increased if the Crown were to disclose his own home address to his co-defendants. However, I do not think the evidence establishes that disclosing his parents’ home address is likely to have a similar impact on his safety.
a) Are there reasonable grounds to believe that Mr. Vinogradsky’s life is in danger?
[32] In December 2018 the YRP received information that Mr. Vinogradsky’s life was in danger. I was not given any information about the source or precise nature of the threat, but the police evidently took it seriously and thought it was necessary to warn Mr. Vinogradsky.
[33] At some point between December 2018 and early April 2019 Mr. Vinogradsky and his family moved to a new residence. In an April 2019 police statement, Mr. Vinogradsky linked the move to his belief “since December” that he was “a dead man with money on [his] head”. As I will discuss further below, it is undisputed that Mr. Vinogradsky’s name is not directly linked to the family’s new home address.
[34] On all the evidence, I am satisfied that both the move itself and Mr. Vinogradsky’s efforts to disassociate himself from the new home address were motivated at least in part by his fears for his and his family’s safety.
[35] On the evening of April 4, 2019 Mr. Vinogradsky visited his family’s former residence. While he was parked outside another vehicle drove past and a man in the front passenger seat began firing a handgun towards Mr. Vinogradsky’s vehicle. Mr. Vinogradsky drove away with the other vehicle in pursuit. During the chase the gunman leaned out the window and continued to fire at Mr. Vinogradsky’s vehicle. Mr. Vinogradsky called 911 on his cell phone as he drove, and the pursuing vehicle eventually broke off the chase and left the scene.
[36] Police investigators observed multiple bullet holes in Mr. Vinogradsky’s SUV and recovered a bullet fragment from the vehicle. One of the bullets had struck Mr. Vinogradsky under his left armpit but had caused only a minor injury. The police also interviewed a number of independent witnesses who saw or heard some part of the incident.
[37] Mr. Vinogradsky made a statement to the police after the shooting in which he described the shooter but said that he did not recognize him. He declined to say who he thought might be behind the shooting, telling the officers: “I don’t have much to hide but don’t want to point fingers”, and adding: “I have to think about my street cred”. However, Mr. Vinogradsky did tell the officers that he thought the shooting was “towing related”, adding: “[W]hen I started it was all fistfights and now its people hiring people to do this” and commenting: “You guys know what you need to know but don’t have 100% to put the certain people away”.
[38] The Crowns do not dispute that the April 4, 2019 shooting occurred substantially as Mr. Vinogradsky described it to the police, nor do they dispute that the shooter was probably trying to kill him. However, they take issue with Mr. Vinogradsky’s reference in his factum to certain other incidents he describes occurring both before and after the shooting, arguing that Mr. Vinogradsky has failed to present admissible evidence that some of these other incidents occurred as he describes them,[^2] and that in any event most of these other incidents did not present any actual threat to Mr. Vinogradsky’s life or safety.
[39] I agree with the Crowns up to a point. While I am prepared to relax the formal rules of evidence to some extent, especially in relation to factual matters that are within the particular knowledge of the police, I agree that Mr. Vinogradsky has an obligation to support his factual assertions with at least some evidence, and I agree that he has not always done so. In particular, in his factum Mr. Vinogradsky describes an incident on March 30, 2020 when he maintains that he was pursued by another vehicle and called the police. The only supporting evidence he provides is a letter from the YRP confirming that there is an ongoing attempted murder investigation relating to something that happened on this date. However, the letter gives no further details about this investigation and Mr. Vinogradsky has not presented any other evidence (e.g., his own affidavit) to support the account of the incident that is set out in his factum. I agree with the Crowns that with no supporting evidence I cannot properly give this incident any weight.
[40] I also agree with the Crowns that none of the other incidents Mr. Vinogradsky relies on to support his claim that he fears for his safety rose to the level of actual attempts on his life. Some of these other incidents can perhaps best be seen as attempts to intimidate him,[^3] and while I think their existence has some bearing on the reasonableness of Mr. Vinogradsky’s fears, the fact that they did not put him in any immediate danger must be borne in mind. I also agree that another incident, in which Mr. Vinogradsky called the police after mistaking an undercover surveillance officer for a potential assailant, has no real bearing on whether his fears for his safety are reasonable, although it does shed some light on his subjective state of mind.
[41] However, I do not think any of these objections ultimately matter, since I consider the uncontroverted evidence of the December 2018 threat and the April 2019 shooting to be sufficient on its own to support the conclusion that Mr. Vinogradsky still has reasonable grounds to fear for his safety. The Crowns have not pointed to any change of circumstance that could reasonably support the inference that the people who evidently wanted Mr. Vinogradsky dead in April 2019 are likely over the past eighteen months to have changed their minds or lost interest. Indeed, it would be particularly unfair to insist that Mr. Vinogradsky provide proof that there has been a more recent attempt on his life given his position that he has taken steps that have made it more difficult for his enemies to find him, steps that he now fears the Crown will undo by disclosing his address.
[42] I also do not accept the Crown’s further argument that Mr. Vinogradsky’s own reluctance at times to be fully cooperative with the police is “incongruent with a person concerned for their safety”. As Ms. Lichtman points out, Mr. Vinogradsky may have had his own reasons for not trusting or wanting to rely on the police. I am not prepared to speculate about his possible motives or draw any adverse inference against him on this basis. It is also noteworthy that most of his alleged non-cooperation occurred before the April 2019 shooting incident. Moreover, Mr. Vinogradsky’s consistent efforts since his arrest in May 2020 to try to have the address information edited out of the Crown disclosure make little sense if he is not genuinely fearful for his safety, since he has no other discernible reason to want to have this information redacted.
[43] In my view the evidence as a whole strongly supports the conclusion both that Mr. Vinogradsky subjectively fears for his own safety, and that he has good objective reasons to be fearful.
b) Will disclosing Mr. Vinogradsky and/or his parents’ addresses jeopardize his safety?
[44] As discussed previously, Mr. Vinogradsky must also show that there is a “sufficient causal connection” between the consequences he fears and the state action he challenges. That is, he must demonstrate that the danger he faces from his enemies is likely to materially increase if the Crowns disclose his and/or his parents’ home addresses to his co-defendants. I must look for “a real, as opposed to a speculative, link”, and do so in a manner that is “sensitive to the context” of this case: Bedford, supra at para. 76.
[45] The Crowns argue that disclosing the two addresses will not actually expose Mr. Vinogradsky to any heightened danger because his enemies can probably find out on their own where both he and his parents live. They cite the Ontario Court of Appeal’s decision in R. v. Saciragic, 2017 ONCA 91 as establishing a general rule that “there is no expectation of privacy in the description of a residential, municipal or mailing address”, and also present affidavit evidence from a police officer who explains what he was able to learn about the connections between the two addresses and various members of Mr. Vinogradsky’s family by searching the Internet.
[46] In my view, the Crowns’ reliance on Saciragic is misplaced. The decision holds only that there is no “categorical” expectation of privacy in a street address because “ordinarily, it is publicly available information to which many people have access” (emphasis added).[^4] However, Miller J.A. did not suggest that nobody can ever expect to keep their home address private from anyone else, even when they take out-of-the-ordinary precautions, and he recognized that there could be “particular circumstances that would indicate a reasonable expectation of privacy”[^5] over this information. In short, while there is no categorical rule that residential street address information is always private, there is equally no categorical rule that this information can never be private.
[47] It is also worth noting that Crown prosecutors routinely edit the addresses of complainants and witnesses out of disclosure materials, and have urged courts in other cases to restrict access to this information in court documents on the grounds that making it public would “represent an undue invasion of the personal privacy of the individuals involved”.[^6] This flies in the face of any suggestion that address information can never be private.
[48] In this case, the Crown’s own affidavit evidence suggests that when Mr. Vinogradsky and his family moved to their current residence, within a few months of being told by the police in December 2018 that his life was in danger, he took certain steps to obscure his link to the new address. I will not discuss in detail what these steps were, but when they are situated in the context of the evidence as a whole I am prepared to infer that at least one of Mr. Vinogradsky’s reasons for taking these steps was to try to conceal the family’s new home address from his enemies.
[49] The Crown contends that even if Mr. Vinogradsky was trying to keep his new address private from third parties, his efforts were ineffective because a police officer was able to search publicly accessible Internet sources and find a link between the address and Mr. Vinogradsky. I do not accept this argument, for two main reasons. First, the officer’s affidavit shows only that he was able to find this link by starting with the new address. It does not necessarily follow that someone who did not already know Mr. Vinogradsky’s address would be able to establish this same link starting only with his name. While Crown counsel urged me to conclude as a matter of “common sense” that the Internet searches the officer conducted must be fully reversible, his affidavit does not address this point. I am not prepared to speculate about whether such a reverse search would be either possible or feasible.
[50] Second, and more generally, I do not think that the fact that an experienced police officer could find some link between Mr. Vinogradsky and his home address by conducting Internet searches destroys all expectation of privacy Mr. Vinogradsky has over his address, so as to defeat his claim that disclosing this information will put him in increased danger. The Supreme Court of Canada’s s. 8 Charter privacy jurisprudence has consistently rejected “risk analysis” arguments, under which the existence of some scenario in which privacy over information could be lost is seen as enough to eliminate all expectation of privacy over that information. As Karakatsanis J. put it R. v. Quesnelle, 2014 SCC 46 at para. 29, “[a] reasonable expectation of privacy is not an all or nothing concept”.
[51] Even if I could conclude that a skilled investigator who was armed only with Mr. Vinogradsky’s name could find a way to link him to his new home address – which, as discussed above, I think the evidence before me falls short of establishing – it would not follow that Mr. Vinogradsky’s enemies would necessarily be able to find this same connection on their own. While the Internet sources the officer used may all be publicly accessible, they are not necessarily locations where other people would think to look. Accordingly, even if I were satisfied that it would be possible for someone to retrace the officer’s search steps in a backwards direction and link Mr. Vinogradsky to his address, I am far from sure that someone with less skill and investigative experience than the officer would necessarily be able to find the right path by which to do this.
[52] As noted previously, Mr. Vinogradsky’s burden at this stage of the analysis is to establish a “real, as opposed to a speculative, link” between the Crowns’ proposed disclosure of his home address and the “increased risk of death” he fears at the hands of his enemies. I think he has done so. In my view, it can reasonably be inferred that the danger Mr. Vinogradsky faces is likely to increase if his home address becomes widely known as a result of the Crown disclosing it to his co-defendants, and that the proposed disclosure accordingly engages his s. 7 rights to life and security of the person. I do not think this conclusion is undermined by the possibility that Mr. Vinogradsky’s enemies might be able to find him without the state’s assistance, since he is not required at this stage to show “that the impugned government action … [is] the only or the dominant cause of the prejudice” he anticipates: Bedford, supra at para. 76.
[53] Mr. Vinogradsky’s spouse and children did not join his application, and he cannot assert their own Charter rights vicariously. However, I am satisfied on the evidence before me that disclosing the family’s home address would also jeopardize their safety. While I agree with the Crown that there is no basis for thinking they will be deliberately targeted, if another attempt were made on Mr. Vinogradsky’s life in or outside their home I think it is reasonably foreseeable that one of his family members could be killed or injured accidentally. In my view, this possibility reinforces Mr. Vinogradsky’s claim that disclosing his address will cause him psychological stress that engages his s. 7 right to security of the person.
[54] However, I come to a different conclusion with respect to the proposed disclosure of Mr. Vinogradsky’s parents’ address, for several reasons. First, and most obviously, Mr. Vinogradsky’s ties to his parents’ residence are qualitatively different from his connection to his own home. He does not live with his parents, and while he may visit them frequently there is no evidence before me that he spends extended periods of time at their home or that he regularly stays there overnight. In contrast, his own home is likely to be the place where he regularly goes to relax and sleep, making him particularly vulnerable when he is there.
[55] Second, while the evidence before me shows that Mr. Vinogradsky has taken some special steps to try to keep his own home address private, there is no evidence that his parents have done anything similar in relation to their own address. The Crowns’ evidence indicates that the police officer who conducted the Internet searches was able to find many more links between Mr. Vinogradsky and other family members and his parents’ address than he was able to establish between Mr. Vinogradsky and his own home address. While I do not think that this evidence goes so far as to establish that Mr. Vinogradsky’s parents have relinquished all reasonable expectation of privacy over their own address, they have much less reason to expect that their address will remain unknown to third parties than Mr. Vinogradsky does in relation to his own home address.
[56] Ms. Lichtman argues that even if third parties could link Mr. Vinogradskys’ parents to their own home address without the Crown’s assistance, Mr. Vinogradsky’s enemies may not know that they are his parents, and thus be unable to draw the further connection with Mr. Vinogradsky himself. Mr. Vinogradsky and his father have the same last name, and the charges against his father arising out of the Project Platinum investigation are a matter of public record. The connection between them is also something that I do not think can be realistically excised from the disclosure brief. In these circumstances, I do not think it is realistic to think that Mr. Vinogradsky’s enemies will be unable to figure out their relationship.
[57] Taking all of these factors into consideration, I am not satisfied that Mr. Vinogradsky has shown on a balance of probabilities that disclosing his parents’ home address to his co-defendants will materially increase the dangers that Mr. Vinogradsky faces, such that this disclosure would engage his protected s. 7 Charter rights.
2. Would the proposed disclosure of Mr. Vinogradsky’s address be contrary to the principles of fundamental justice?
[58] State action that compromises a person’s rights to life or security of the person will only violate s. 7 of the Charter if it is also contrary to “the principles of fundamental justice”. These principles “are to be found in the basic tenets of our legal system”, with the enumerated rights in ss. 8 to 14 of the Charter serving as illustrative examples: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486 at paras. 29-31. While the past thirty years of Charter jurisprudence has identified many such principles, the list is not yet closed.
[59] Ms. Lichtman suggests that the operative principle of fundamental justice in this case can be described as a duty on the part of the state “not to actively jeopardize someone’s life”. In my view this proposed principle misses the mark. It is framed too broadly, since state action that jeopardizes someone’s life may not offend s. 7 if it advances some important public or legislative goal.[^7] In my view, what makes the Crowns’ plan to disclose Mr. Vinogradsky’s home address to the other Project Platinum defendants problematic is not simply that it exposes him to an increased risk of death or bodily harm, but that it does so without advancing any compelling state objectives. As I see it, this constitutional defect is best captured by the well-established s. 7 principle against arbitrariness.
[60] A law or other form of state action will be “arbitrary” and contrary to s. 7 when there is no rational connection between its impugned effects and the ostensible state purpose. As McLachlin C.J.C. explained in Bedford, supra at para. 111:
Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person …. A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests.
In their plurality reasons[^8] in Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35, McLachlin C.J.C. and Major J. explained further at para. 131:
In order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The onus of showing lack of connection in this sense rests with the claimant. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair. The more serious the impingement on the person’s liberty and security, the more clear must be the connection. Where the individual’s very life may be at stake, the reasonable person would expect a clear connection, in theory and in fact, between the measure that puts life at risk and the legislative goals.
[61] In this case, the Crowns rely on four different state purposes they say would be served by not redacting Mr. Vinogradsky’s home address from the initial disclosure that the other Project Platinum defendants will be receiving:
(i) Disclosing the information will bring the Crown into compliance with its constitutional obligations under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326;
(ii) Making this disclosure now will prevent a “prolixity of litigation” over disclosure issues in the future;
(iii) Disclosing Mr. Vinogradsky’s address will ensure that he does not receive “preferential treatment” over the other defendants; and
(iv) Dismissing his application for a Charter remedy will discourage defendants in future cases from bringing similar applications, thereby speeding up and streamlining future prosecutions.
[62] I will consider each of these stated purposes in turn.
a) The Crown’s Stinchcombe disclosure obligations and the defendants’ right to make full answer and defence
[63] The purpose of the Crown’s Stinchcombe disclosure duties is to ensure that criminal defendants can make full answer and defence to the charges against them. However, defendants only require disclosure of information that is actually relevant to their charges. Disclosing information that has no real bearing on their case, and which they therefore do not need to make full answer and defence, does nothing to advance the animating objective of the Stinchcombe disclosure rules.
[64] In this case, immediately revealing Mr. Vinogradsky’s home address may put his “very life … at stake”. There must accordingly be “a clear connection, in theory and in fact” between disclosing this specific information at this time and achieving the objective of enabling the other defendants to make full answer and defence: Chaoulli, supra at para. 131.
[65] However, on the record before me it is far from obvious that any of the other defendants, who face a wide range of different charges with varied connections to the charges against Mr. Vinogradsky, will ever need to know his precise home address in order to defend themselves. While it is possible to imagine scenarios in which this information could somehow become important to at least some of these other defendants, I cannot determine the likelihood of any of these scenarios actually materializing in an evidentiary vacuum. At this point the possibility of Mr. Vinogradsky’s address ultimately being of any real use to the other defendants seems to me to be quite remote.
[66] I recognize that the situation could change, but given the potential for serious harm that could result to Mr. Vinogradsky if his address is disclosed now, I think something more is required to justify its immediate release than a theoretical possibility that the information could somehow become important to some of the other defendants for as-yet unidentified reasons. At this early stage of the prosecutions, the “real connection on the facts” required by s. 7 does not yet in my view exist.
[67] When pressed, Crown counsel were unable to outline any realistic scenario in which the exact location of Mr. Vinogradsky’s home is likely to become important to any other defendants. Their only suggestion was that some other defendants may want to challenge the admissibility of evidence that the police seized from Mr. Vinogradsky’s home. It is far from clear at this point whether any of the other defendants, none of whom live with Mr. Vinogradsky, will be able to claim standing to challenge the police search of his residence,[^9] nor is it clear that any of them will have any reason to do so. More importantly, however, it is not at all apparent why a defendant who wanted to challenge the lawfulness of this search would need to know the home’s exact geographical location in order to raise and fully litigate the associated legal issues.
[68] In my view, at this early stage of the case the speculative possibility that other defendants might eventually need to know Mr. Vinogradsky’s address to make full answer and defence does not rise to a level that justifies putting his life in immediate increased danger. Disclosing his address now would increase the risk to his safety without necessarily advancing the goal of making sure that the other defendants receive fair trials, and depending on how these trials unfold it may never become necessary to expose him to this heightened danger.
b) Avoiding “a prolixity of litigation”
[69] The Crowns also argue that disclosing Mr. Vinogradsky’s address immediately would also further a second state objective, namely, the goal of avoiding “promot[ing] a prolixity of litigation on the issue of un-redacting material at a later date”. In the alternative, they argue that Mr. Vinogradsky should have given notice of his application to all of the other defendants so that the question of whether the information about his address should be disclosed could be fully litigated right away.
[70] As far as the first argument goes, I am skeptical that the goal of avoiding “a prolixity of litigation” could ever be sufficiently weighty on its own to justify exposing Mr. Vinogradsky to a substantially increased risk of death or bodily harm. In this case, however, redacting his address from the disclosure brief will not necessarily lead to any future litigation. It is entirely possible – and, indeed, at this point seems more likely than not – that none of the other defendants will ever have any interest in knowing exactly where Mr. Vinogradsky lives. Putting his life in immediate jeopardy to prevent a purely hypothetical possibility that there otherwise might have to be future litigation would in my view be contrary to s. 7.
[71] In any event, while avoiding “prolixity of litigation” is often laudable, it would be more accurate to describe the relevant policy goal as avoiding a prolixity of unnecessary litigation. Some litigation is essential. In this case, if there turns out to be a genuine conflict between Mr. Vinogradsky’s safety and the rights of some other defendants to make full answer and defence, the issue will have to be litigated so that a court can properly weigh and balance the parties’ competing claims. There is no public interest in avoiding this litigation if it proves necessary.
[72] The Crowns’ alternative argument that the disclosure issue should be fully litigated immediately, and that Mr. Vinogradsky should accordingly have given all of the other Project Platinum defendants notice of his application, seems to me both counterproductive and unworkable in practice. None of the defendants have received disclosure, and there is no reason to expect any of them to be able to say at this point whether, or why, they need Mr. Vinogradsky’s home address to make full answer and defence. It may very well turn out that they do not need this information. Forcing the parties to conduct potentially unnecessary litigation of an issue that has not yet arisen in their cases and that may never arise, at a time when none of them are likely to be ready to do so, would run directly counter to the ostensible goal of preserving scarce court resources. Requiring a court to adjudicate the issue with inadequate evidence and no concrete factual context would exacerbate the problem. As the authors of the Martin Committee Report[^10] noted at p. 201, “[r]elevance is a matter that may sometimes best be determined in the context of issues as they unfold at trial.”
[73] As a practical matter, this application was heard by Zoom videoconference due to the COVID-19 pandemic, and the hearing took a full day. If Mr. Vinogradsky had given notice to all of the other Project Platinum defendants – more than fifty in number – and they had all chosen to participate, it would likely have taken many days to complete. The goals of preserving scarce judicial resources and reaching just decisions are sometimes both best served by postponing litigation until an issue is ripe for determination and the parties can take well-considered positions and make focused submissions. In my view, that is the situation here.
[74] I accordingly do not fault Mr. Vinogradsky for not giving notice of his application to all of the other defendants, nor am I inclined to give effect to the Crown’s argument that I should refrain from deciding the application until notice is given and all of the other defendants can be heard from. If any of the other defendants are adversely affected by not receiving disclosure of Mr. Vinogradsky’s address, they will not be prejudiced by having their concerns heard at a later date.
c) Ensuring that Mr. Vinogradsky does not receive “preferential treatment” over the other defendants
[75] The Crowns’ next argument is that disclosing Mr. Vinogradsky’s home address would promote the further state objective of ensuring that he does not receive “preferential treatment” over the other defendants, at least some of whose own home addresses are presumably going to be included in some of the disclosure documents.
[76] I find this argument wholly unpersuasive, for several reasons. First, Mr. Vinogradsky is the only one of the defendants who seems to have ever raised the concern that disclosing his home address will jeopardize his safety. He has done so continuously since his bail hearing, and has now applied for a s. 24(1) Charter remedy. There is no indication in the materials before me that any of the other defendants have ever raised similar concerns, nor is there any evidence that any of them have been the victims of a prior assassination attempt. None has brought their own Charter application. In my view, redacting Mr. Vinogradsky’s address from the disclosure brief because of the special concerns he alone has raised would not amount to him receiving “preferential treatment”.
[77] Conversely, I have considerable difficulty seeing how the state has any real interest in exposing Mr. Vinogradsky alone to an increased risk of death or serious injury, purely in order to preserve a state of formal equality between him and the other defendants. Since none of the other defendants appear to be concerned that they will be killed or injured if their addresses are disclosed, the form of “equality” the Crowns invoke is somewhat reminiscent of Anatole France’s epigram that “[t]he law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread”.[^11]
[78] Even if the goal of promoting this form of equality were to be treated as a valid state objective in the s. 7 Charter analysis, it would in my view cause the proposed disclosure to run afoul of the analytically distinct s. 7 principle against gross disproportionality, in that the potential harm to Mr. Vinogradsky if he is killed or injured would be “totally out of sync with the objective of the measure” (Bedford, supra at para. 120).
[79] The Crowns base their argument that they are obligated to try to pursue this goal primarily on a 1983 Saskatchewan Court of Queen’s Bench decision, R. v. Rosamond, 1983 CanLII 2576 (S.K.Q.B.), in which Vancise J. (as he then was) held that discretionary Crown decisions that put one co-accused “in a position of special advantage” over a co-accused can infringe s. 7 and 11(d) of the Charter. Saskatchewan trial court decisions are of course not binding on me, and the analysis in Rosamond has arguably been overtaken by later binding Supreme Court of Canada authority.[^12] However, even if the principles in Rosamond are still good law, the case does not in my view support the Crowns’ argument here, for two reasons.
[80] First, Vancise J.’s holding in Rosamond was “confined to conduct which may result in putting [one accused] in a position of significant advantage to the possible prejudice of [his or her] co-accused”.[^13] On the record before me there is no reason to think that Mr. Vinogradsky will gain any “significant advantage” by knowing some of the other defendants’ addresses when they do not know his, or that they would suffer any corresponding prejudice.
[81] Second, the issue in Rosamond was whether the Crown’s unilateral decision to extend some defendants a procedural right that had been given to another defendant violated their Charter rights.[^14] In this case, however, Mr. Vinogradsky is not asking me to review the Crowns’ exercise of their discretion to decide what to disclose. Rather, he is asking me to give him a s. 24(1) remedy on the basis that the Crowns’ anticipated actions will breach his Charter rights. If Mr. Vinogradsky is otherwise entitled to this remedy I am unaware of any principle that would justify my denying it to him solely in order to maintain a state of formal equality between him and the other defendants, none of whom have requested any similar remedy for themselves, nor do I think he was under any obligation to give them notice so they could join his application. The other defendants remain free to bring their own Charter applications if they choose to do so.
d) Deterring similar applications in future cases
[82] The Crowns also urge me not to grant any relief to Mr. Vinogradsky, regardless of the impact the proposed disclosure would have on his safety, because giving him a remedy would set a dangerous precedent that would make future prosecutions more difficult. In his oral submissions, federal Crown counsel submitted that unless similar applications are discouraged in future criminal organization cases where other defendants may fear possible violence, “the whole thing will collapse”:
All it takes is one precedent set, it opens up the door to everyone saying “We have a right not to have our address mentioned in an ITO or any form of disclosure”.
He submitted further that as a matter of principle no defendants’ address should ever be redacted from disclosure because it is likely to be “intricately interwoven” into the disclosure documents, such that the edited disclosure will be incomprehensible. In federal Crown counsel’s view, the precedent that would be set by directing the redaction of Mr. Vinogradsky’s address information would cause future criminal organization prosecutions to become “almost completely unworkable”. He submitted that:
[T]hese cases will fail. We will actually see nobody being prosecuted for allegedly committing serious crimes.
The federal Crown also raised a further concern about possible civil liability if Crowns were ordered to redact disclosure to protect a defendant’s safety and inadvertently missed something.
[83] I would not give effect to these arguments, for two main reasons. First, I think the federal Crown’s dire predictions are overblown. Cases where defendants reasonably fear that they will be harmed if their address is disclosed, and where prosecutors also refuse to exercise their own discretion to redact this information themselves, are likely to arise relatively infrequently. Defendants who do not actually fear any adverse consequences from the disclosure of their addresses are unlikely to flood courts with meritless applications to have this information redacted, since they will obtain no real benefit from doing so even if they succeed. I do not accept the hyperbolic prediction that granting Mr. Vinogradsky’s application and giving him a remedy will cause future organized crime prosecutions everywhere to grind to a halt and collapse.
[84] Second, as a matter of logic the federal Crown’s in terrorem arguments only come into play if I am satisfied, contrary to the Crowns’ main position, that disclosing Mr. Vinogradsky’s address at this time will jeopardize his safety without truly advancing the legitimate state goal of ensuring that the other defendants receive fair trials. It is not an argument against the existence of a Charter breach in this case as much as an argument for why I should avoid giving him any remedy.
[85] The Crown’s interest in avoiding a precedent-setting remedial decision is not in my view something that can properly be given any weight in the s. 7 arbitrariness analysis, which requires me to focus exclusively on the purposes the Crown hopes to achieve by disclosing Mr. Vinogradsky’s address. The adverse consequences the Crowns fear will flow from them being ordered not to disclose his address could in my view only be considered, if at all, in a case where the state was arguing that a s. 7 violation can be saved under s. 1 of the Charter.[^15]
[86] Moreover, s. 7 rights “are very significant and cannot ordinarily be overridden by competing social interests”: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 at para. 99. As well as making s. 7 breaches “not easily saved by s. 1”,[^16] it will in my view be very difficult for the Crown to invoke competing societal interests to justify denying a remedy to a successful s. 7 claimant.
e) The relevance of Mr. Vinogradsky’s own alleged misconduct
[87] The Crowns also urged me to take Mr. Vinogradsky’s own actions and alleged misconduct into account in my analysis. As noted earlier, they argued that Mr. Vinogradsky’s failure to fully cooperate with the police after he first learned of the threat to his life suggests that he does not have genuine safety concerns. I agree that his response to the threats against him is a relevant factor for me to consider when determining whether he has met the threshold s. 7 burden of establishing an anticipated infringement of his rights to life and security of the person, but as I have already discussed I do not agree that evidence in this case weighs against him on this point.
[88] However, the federal Crown went further and suggested that I should also take into account that Mr. Vinogradsky is “alleged to be involved in his own share of … facilitating violence and causing violence to others as well”. Federal Crown counsel did not explain how this could possibly bear on the s. 7 Charter analysis in this case. In my view, it has no bearing, at least not in any way that bolsters the Crowns’ position.
[89] I accept that the existence of the charges against Mr. Vinogradsky are relevant insofar as they support inferences about whether he reasonably fears for his life. If the Crown’s theory were that Mr. Vinogradsky played only a minor and insignificant role in the “towing wars”, this might undermine the reasonableness of his belief that he still has enemies who want him dead. However, the actual prosecution theory in these cases places Mr. Vinogradsky at the apex of the group that is alleged to be a criminal organization. Regardless of his guilt or innocence, the very existence of these allegations may give his enemies further reason to wish him harm. To this extent, the nature of the allegations against Mr. Vinogradsky in my view tends to support his s. 7 claim.
[90] However, if the federal Crown was trying to suggest that the allegations against Mr. Vinogradsky weigh against his s. 7 Charter claim by suggesting that he is the author of his own misfortune, or that he is somehow deserving of the fate he fears at the hands of his enemies, I unreservedly reject this argument in the strongest possible terms. Quite apart from his constitutional right to be presumed innocent of the charges against him, his guilt or innocence of these charges simply has no bearing whatsoever on his right to have the state not put his life in increased danger for no good reason.
3. Conclusions regarding Mr. Vinogradsky’s s. 7 Charter claim
[91] For the reasons set out above, I am satisfied that the proposed immediate Crown disclosure of Mr. Vinogradsky’s home address would arbitrarily interfere with his rights to life and security of the person, and therefore infringe his s. 7 Charter rights. I will address the question of remedy below.
B. Would the proposed disclosure infringe Naum Vinogradsky’s s. 7 Charter rights?
[92] As discussed above, Alexander Vinogradsky’s father Naum Vinogradsky joined his son’s application to have Naum Vinogradsky’s own home address redacted from the Crown disclosure brief. However, Naum Vinogradsky does not suggest that his own s. 7 Charter rights would be infringed by the Crown disclosing Alexander Vinogradsky’s own home address.
[93] I am not satisfied that Naum Vinogradsky has established that the proposed disclosure would breach his own s. 7 rights, for two main reasons. First, and most importantly, there is simply no evidence before me that anyone is trying to kill him. Unlike the situation with his son, there is no evidence that any threats have ever been made against him, or that any previous attempts have ever been made on his life. I do not think it is reasonable to conclude that Alexander Vinogradsky’s enemies will for some unknown reason deliberately target his father, and since Naum Vinogradsky and his son live in separate residences I do not think he faces the same risk of being killed or injured accidentally that Alexander Vinogradsky’s own spouse and children face.
[94] It is also of some small significance that there is no evidence that Naum Vinogradsky ever expressed any concerns about his own safety before this application was heard. In contrast, Alexander Vinogradsky has been making strenuous efforts ever since he was arrested not to have his home address disclosed.
[95] Second, Naum Vinogradsky has less reason than his son to expect other people not to be able to ascertain where he lives. As I have already discussed, I am satisfied that Alexander Vinogradsky moved with his family to a new house and took some pains to try to keep the new address secret at least in part because he learned in December 2018 that his life was in danger. In contrast, Naum Vinogradsky has lived at his current residence for a matter of years rather than mere months, and there is no evidence that he has ever taken any active steps to maintain secrecy over his address. While I do not think the Crown’s affidavit evidence necessarily shows that Naum Vinogradsky has completely abandoned all expectation of privacy over his address in relation to all third parties, the evidence does tend to suggest that any expectation of privacy he has retained is less robust than Alexander Vinogradsky’s expectation of privacy in relation to his own new home address, which he has actively tried to preserve.
[96] In summary, I am not satisfied that Naum Vinogradsky has established that disclosing his own home address would put his life in any increased danger, primarily because I am not satisfied that his life is in danger in the first place, and to a lesser extent because his expectation that his home address will remain unknown to third parties is somewhat tenuous. I am accordingly not satisfied that he has met his threshold burden under s. 7 of the Charter of demonstrating that the impugned state action would violate his rights to life or security of the person.
C. Was the Crown barred from redacting the address information on its own initiative?
[97] Although the Crowns vigorously oppose Mr. Vinogradsky’s request that I order them to redact Mr. Vinogradsky’s home address from the disclosure brief, they do not dispute that I have jurisdiction to make such an order as a s. 24(1) Charter remedy.
[98] However, they took the position in their submissions that they could not have made the redactions themselves without a court order, for two different reasons. First, they argued that it would have been impermissible for them to have edited the copies of court orders that are going to be included in the disclosure brief, some of which contain Mr. Vinogradsky’s address. Second, and more generally, they argued that the ability of the Crown under Stinchcombe to edit or delay disclosure to protect the interests of third parties can never be exercised in favour of a person who is also a charged defendant.
[99] It is not strictly necessary for me to address whether the Crowns could have edited the disclosure at Mr. Vinogradsky’s request, since it is clear that they would not have done so in any event, and since he has framed his application as a request for a Charter remedy for an anticipated s. 7 breach, rather than as a request for me to review the Crowns’ exercise of their discretion. However, since similar issues may arise in future cases I will briefly discuss the Crowns’ arguments.
[100] On the issue of whether the Crown can edit court orders, I think the Crowns’ argument slightly misses the mark. I agree that since court orders are presumptively public documents, the Crown cannot unilaterally restrict the right of members of the public, including other criminal defendants, to go to the courthouse and review them in their unredacted form. Public access to a court’s copy of its own orders can only be restricted pursuant to legislation or by a judicial order.
[101] However, I do not think this it follows that the Crown is precluded from editing the copies of court documents that it includes in disclosure briefs. A mere copy of a court order is not a sacred text that only another judge can alter.
[102] That said, Crown editing of the copy of a court order that is included in a disclosure brief will be futile if the public has unrestricted access to the unedited copy in the court’s own file. Likewise, in this case it would have been pointless for the Crowns to expend effort redacting Mr. Vinogradsky’s address from police reports and other disclosure documents where it appears as long as this information remains publicly accessible in court documents. In this sense I agree that the Crown could not have simply acceded to Mr. Vinogradsky’s request that his address not be disclosed, thereby sparing him from having to seek a court order.
[103] However, I do not think this means that the Crown was obliged to refuse his request to have the information redacted. To the contrary, it would have been open to the Crown to agree to make the redactions Mr. Vinogradsky was seeking on condition that he undertook to also apply for sealing orders over the documents containing his address that would remain in the courts’ own files. I do not agree that the Crown’s inability to regulate access to these latter documents on its own compelled the Crowns to oppose his request that they edit the disclosure brief.
[104] I also do not agree that Stinchcombe precludes the Crown from editing disclosure to protect a co-defendant’s safety. Although in Stinchcombe Sopinka J. discussed the Crown’s discretion to withhold or delay the release of information “by reason of concern for the security or safety of witnesses”, I do not think he meant to predetermine this to be the only situation in which disclosure can properly be delayed. When there are good grounds for thinking that the immediate disclosure of a defendant’s personal information will jeopardize his or her safety, and where there is little reason to think this information will be of any real relevance to other defendants, it seems to me that the balance of interests will generally favour preserving the status quo until the situation can be clarified. The harm resulting from disclosing the information immediately may be irreparable, whereas the benefits of immediate disclosure may be non-existent.
[105] I do not think that Sopinka J. meant to deny prosecutors the ability to delay disclosing information in circumstances where doing so would risk potentially significant harm and do no apparent good, merely because the person who would be adversely affected is himself or herself facing charges. To the contrary, I think the Crown’s discretion under Stinchcombe must be understood as not permitting breaches of anyone’s Charter rights, regardless of their status in the prosecution.[^17] It follows that I do not think that Stinchcombe obliged the Crowns in this case to refuse Mr. Vinogradsky’s redaction request solely on the grounds that he was a defendant rather than an “innocent third party”.
V. Remedy
[106] For the reasons I have outlined, I am satisfied that in the circumstances here the immediate disclosure of Alexander Vinogradsky’s homes address to his co-defendants would violate his s. 7 Charter rights.
[107] To be clear, I am not saying that his address must necessarily never be disclosed. It is possible that for reasons that I have not anticipated some of the other defendants will turn out to need this information to make full answer and defence. If so, the balance of interests may shift, such that disclosing the information may no longer arbitrarily interfere with Mr. Vinogradsky’s rights to life and security of the person. Mr. Vinogradsky’s situation may also change in a way that reduces or eliminates the harm he anticipates will be caused by the disclosure. Accordingly, my ruling is necessarily provisional, and should not be understood as preventing any of the other Project Platinum defendants from seeking to have my order varied in the future if they can articulate some reason why they need the redacted information in order to make full answer and defence.
[108] The task of locating and removing any explicit references to Mr. Vinogradsky’s home address in the disclosure brief that is now being prepared will be relatively straightforward, although quite possibly time-consuming. However, the Crowns observe that some disclosure documents also contain information that could reveal Mr. Vinogradsky’s address indirectly, and question how far their redactions must go. They also point to the practical problems that could arise if it turns out that Mr. Vinogradsky’s address is mentioned in later non-documentary disclosure that may be more difficult to edit, such as wiretap recordings, and question whether surveillance officers who testify at a preliminary inquiry or trial will have to be constrained when it comes to giving evidence that might indirectly reveal where Mr. Vinogradsky lives.
[109] While these are valid concerns, I do not think they justify my throwing up my hands and deciding that it would simply be too difficult to give Mr. Vinogradsky any remedy. It seems to me that the problem of where to draw the line when it comes to redacting information that might disclose his address indirectly is similar to the problem Crowns must confront when they redact disclosure to protect confidential informant privilege or third party privacy interests. While the line-drawing exercise may be difficult in these situations, it has not proven to be impossible.
[110] Since I have not seen the disclosure brief in this case I do not think it would be helpful for me to try to determine, in advance and in the abstract, exactly what should be redacted. Instead, I will direct Crown counsel to work with Ms. Lichtman in the best traditions of the criminal bar to try to reach a consensus. If disagreements arise that counsel cannot work out between themselves, I will resolve them.
[111] I also do not think that the problems that might possibly arise in the future when the Crowns are ready to make more extensive disclosure or when witnesses are called to testify can be addressed now. The anticipated problems may not all materialize, and by the time they do Mr. Vinogradsky’s situation may be different. In my view, these problems should be left to be determined in the concrete reality of the case as it unfolds.
[112] Finally, it is clear that ordering the Crown to redact Mr. Vinogradsky’s address from the disclosure brief will do him no good if this information remains accessible in other publicly available court documents. Ms. Lichtman recognizes that this is a problem, and advised me during the hearing that if I make the order she seeks, she undertakes to bring a further application to have the address information sealed in any court documents where it appears, with proper notice to the media as required by this Court’s Consolidated Provincial Practice Direction, Part F.
[113] However, in order to preserve Mr. Vinogradsky’s rights and safety in the interim, I am prepared to make an temporary order sealing the unredacted copies of court documents that contain his home address, including the search warrant for his residence, other associated court documents relating to the search, and his bail order. I also direct that the application records and other material that were filed on the within application be kept under seal on an interim basis. These sealing orders will remain in effect for sixty days of the date of release of this judgment, or until such time as an application Mr. Vinogradsky has brought within sixty days of this date to extend or augment these sealing orders can be heard.
The Honourable Justice Dawe
Released: September 21, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ALEXANDER VINOGRADSKY and NAUM VINOGRADSKY
REASONS FOR JUDGMENT
The Honourable Justice Dawe
Released: September 21, 2020
[^1]: Counsel for some of the Project Platinum defendants were given a police synopsis as preliminary disclosure in May 2020 that included Mr. Vinogradsky’s home address, but at his counsel’s request the Crown agreed to redact this information out of the synopsis, and the defence counsel who had received the unredacted copies agreed to return them.
[^2]: For instance, in his factum Mr. Vinogradsky describes an incident on March 30, 2020 when he maintains that he called the police after being pursued by another vehicle. He has provided as supporting evidence a letter from the YRP confirming that there is an ongoing attempt murder investigation relating to something that happened on this date. However, the letter gives no details about the facts of the incident that is apparently under investigation, and Mr. Vinogradsky has not adduced any other evidence (e.g., his own affidavit) to support the description of the incident in his factum. Mr. Vinogradsky also relies on a newspaper article rather than his own direct evidence to support his claim that there was an apparent arson outside one of his businesses in June 2020. However, while the Crowns object to Mr. Vinogradsky’s reliance on hearsay they do not suggest that the newspaper report is inaccurate.
[^3]: These events include: (i) an alleged incident in December 2018 when an unknown person fired bullets through the window of one of Mr. Vinogradsky’s businesses at night, while the building was unoccupied; and (ii) a June 2020 incident in which a fire appears to have been deliberately set outside another of Mr. Vinogradsky’s businesses during the early morning hours.
[^4]: Saciragic, supra at para. 32.
[^5]: Supra, at para. 33.
[^6]: See, e.g., Toronto Star Newspapers Ltd. v. Canada, 2005 CanLII 47737 at para. 13; see also Canadian Broadcasting Corporation and Others v. Her Majesty the Queen, 2013 ONSC 6983 at para. 29.
[^7]: See, e.g. Fraser C.J.A.’s comments in R. v. Davis, 2013 ABCA 15 at para. 72ff, dissenting in the result. The Supreme Court of Canada reversed the Alberta Court of Appeal majority’s decision essentially for the reasons given in dissent by Fraser C.J.A.: see R. v. Davis, 2014 SCC 4.
[^8]: In Chaoulli the Chief Justice and Major J., joined by Bastarache J., struck down sections of Quebec legislation on the basis that they violated both s. 7 of the Charter and provisions of the Quebec Charter of Human Rights and Freedoms. Deschamps J. concurred in the result but relied exclusively on the Quebec Charter and did not address s. 7.
[^9]: See, e.g., R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128; however, see also R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696.
[^10]: G.A. Martin, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (1993).
[^11]: See Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245 at para. 56.
[^12]: For instance, in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601 and Kreiger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, Court held that discretionary prosecutorial decisions are only reviewable under the abuse of process doctrine.
[^13]: Rosamond, supra at para. 6.
[^14]: In Rosamond the Crown had preferred a direct indictment against two defendants, thereby forcing them to be tried without a preliminary inquiry, which a third defendant had already had. An important contextual factor in Rosamond is that it was decided some years before the Supreme Court of Canada’s decision in Stinchcombe, supra recognizing a s. 7 Charter right to pre-trial Crown disclosure. In the pre-Stinchcombe era the importance of the preliminary inquiry was magnified for defendants because it often served as an important discovery tool, and defendants who did not have one would often otherwise receive little or no disclosure from the Crown. Significantly, the Charter remedy Vancise J. (as he then was) granted to the defendants in Rosamond was an order requiring the Crown to make documentary disclosure to the defendants who had not had a preliminary inquiry. After Stinchcombe they would have been entitled to disclosure of this material as of right.
[^15]: See Bedford, supra at para. 124-29. Section 1 is only available when the infringement of a Charter right is “prescribed by law” and has not been not raised by the Crowns in this case.
[^16]: R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24 at para. 92.
[^17]: See Slaight Communications v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 SCR 1038.