COURT FILE NO.: CRIMJ(P) 1986/19
DATE: 20201021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
DYLLAN ALI; DIQUAN TAYLOR
Respondents
- and -
PEEL REGIONAL POLICE SERVICE
Applicant
- and -
CONSTABLE SEAN OSBORNE
Third Party Respondent
Counsel:
Ikdeep Singh, for the Crown
Enzo Battigaglia, for Mr. Ali
James Mencel, for Mr. Taylor
Jovana Orabovic, for Peel Regional Police
Lawrence Gridin, for Constable Osborne
HEARD: October 13, 2020, by video conference
RULING
(Application to Stay Disclosure Order of July 17, 2020)
Justice F. Dawson
[1] The Chief of the Peel Regional Police applies to me pursuant to s. 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26 for an order staying an order for disclosure I made on July 17, 2020 in the prosecution of Dyllan Ali and Diquan Taylor, pending an application for leave to appeal that order directly to the Supreme Court of Canada. My reasons for making the disclosure order will become available at 2020 ONSC 4410 after the anticipated jury trial of the accused Ali and Taylor has concluded.
[2] Cst. Sean Osborne, one of the officers responsible for the case against Ali and Taylor, is charged with assault and obstruction of justice in an unrelated case. In my ruling I determined that the investigative files which comprise the Crown’s disclosure in that case should form part of the Crown’s “first party disclosure” to Ali and Taylor pursuant to R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326. As noted in my disclosure ruling, the disclosure requirements in Stinchcombe were expanded upon in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, as explained further in R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35 and R. v. Pascal, 2020 ONCA 287.
[3] As the applicant was a third party in the application that led to my order the only appellate remedy available to the applicant is a direct appeal to the Supreme Court of Canada, pursuant to s. 40 of the Supreme Court Act, which requires leave. The applicant filed its application for leave to appeal on September 29, 2020. It does not appear that Cst. Osborne has applied for leave to appeal but his counsel supports the application for a stay of my previous order pending the outstanding application for leave.
The Application to Stay My Order
Legal Principles
[4] Section 65.1 of the Supreme Court Act reads as follows:
65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.
[5] It is common ground that to obtain a stay the applicant must satisfy the three part test discussed in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, at para. 43. That test was described by MacPherson J.A. in Yaiguajc v. Chevron Corp., 2014 ONCA 40 (Chevron), at para. 3, as requiring the applicant to show: (1) that there is a serious question to be determined on the appeal; (2) that the applicant will suffer irreparable harm if the stay is not granted; and (3) that the balance of convenience favours the granting of a stay. In Chevron, at para. 19, MacPherson J.A. cited authority to the effect that a strength in one part of the test may make up for a weakness in another. At the end of the day, the court must decide whether the interests of justice require a stay. I will deal with each aspect of the test in turn.
(1) Serious Question
[6] In Ontario it has been held that when considering this issue more is required than simply determining that the appeal is not frivolous or vexatious. The court must also have regard to the factors in s. 40 of the Supreme Court Act and “assess whether there is some merit in the leave application, and especially whether the appeal raises a matter of public importance”: Chevron, at para. 4. That said, the threshold is low.
[7] On behalf of Mr. Ali, Mr. Battigaglia submits that the law with respect to when the first party as opposed to the third party disclosure regime applies was settled in McNeil and has been clearly restated in both Gubbins and Pascal. I agree that the law seems to have been quite clearly stated. Yet I also agree with those who submit that there has been difficulty in applying the law.
[8] It seems to me that I should be considering whether the applicant’s case is reasonably capable of succeeding rather than how likely it is to succeed. With respect to the correctness of my disclosure ruling, it seems to me that the appeal is arguable. In terms of public importance, I agree with the submissions of counsel for the applicant, for the responding Crown and for Cst. Osborne, that the question of where to draw the line between first and third party disclosure regimes has continued to pose difficulties for trial courts. That issue is, therefore, at least capable of being viewed as a matter of public importance.
[9] I also observe that leave to appeal to the Supreme Court of Canada has been sought in Pascal. That is some indication of a broader concern. While I do not think that the applicant’s submission on this point is strong, I conclude it is enough to meet the required low standard.
(2) Irreparable Harm
[10] It was held in RJR-MacDonald, at para. 59, that, “Irreparable refers to the nature of the harm suffered rather than its magnitude.” The focus is on harm to the applicant. Any harm suffered by the other parties is to be considered at the third stage, when dealing with the balance of convenience.
[11] This aspect of the test is easily satisfied in this case because if my order is not stayed the applicant’s appeal will become moot. While the Supreme Court of Canada occasionally hears a case which has become moot, that is exceptional. Consequently, I conclude the irreparable harm requirement has been met. I agree with the submission that it will become much harder for the applicant to obtain leave if the appeal has been rendered moot.
[12] While this is sufficient to satisfy the irreparable harm requirement, I wish to address the submissions contained in para. 14 of the Applicant’s Factum filed on this motion. There the applicant submits that failure to grant a stay of my order “would cause irreparable harm to the Peel Regional Police as it would require the service to disclose to the defence all records belonging in the investigative file pertaining to an ongoing criminal matter involving Cst. Osborne, without a vetting opportunity or any regard to the privacy of the individuals referred to therein. This includes other unrelated, uninvolved members of Peel Regional Police who were investigated and have no involvement whatsoever in the matter before this Court.”
[13] When the motion was argued counsel for Mr. Ali and Mr. Taylor confirmed that they never asked for material beyond what has been disclosed to Cst. Osborne pursuant to Stinchcombe. I confirmed my understanding to the same effect. It was not my intention that the order I made would require the police or Crown counsel to disclose to Mr. Ali or Mr. Taylor more than has been disclosed to Cst. Osborne. Counsel for Mr. Ali and Mr. Taylor also confirmed their expectations that the material they would receive pursuant to my order would be subjected to the routine vetting first party disclosure usually undergoes to remove addresses, contact information and other information to protect the privacy of individuals mentioned in the disclosure. I was not advised during the original motion that “Internal Affairs” files, containing information about other officers who were investigated, formed any part of the disclosure made to Cst. Osborne in relation to his charges.
(3) Balance of Convenience
[14] Here I must consider how the granting or refusal of a stay will affect each of the parties. In RJR-MacDonald, at para. 63, the court indicated that under this branch of the test the factors are numerous and will vary with each case. At para. 64, the court emphasized that in constitutional cases the public interest is a special factor which must also be considered in assessing the balance of convenience.
[15] There are constitutional aspects to the present case. Section 7 of the Charter protects the right of accused persons to make full answer and defence, which is clearly linked to receiving disclosure. The stay application could have an impact on the rights of Mr. Ali and Mr. Taylor to a trial within a reasonable time as protected by s. 11(b) of the Charter. The privacy rights of Cst. Osborne and of those who made statements to the police during the investigation of Cst. Osborne are also at issue and so s. 8 of the Charter is also implicated. As counsel for the Peel Regional Police emphasizes, police services are charged with the responsibility of complying with legislation designed to protect privacy.
[16] In these circumstances the pubic has an interest in ensuring that trials are conducted fairly with proper disclosure, that trials take place within a reasonable time and that reasonable expectations of privacy are protected. Clearly, there are many competing interests with constitutional implications which are at stake in this case.
[17] Moving from the general to the specific, the granting of a stay will not permanently impact the ability of the two accused to receive the disclosure they are entitled to in order to make full answer and defence. If leave is refused, my order will stand. If leave is granted, the Supreme Court of Canada will presumably decide whether the first party disclosure regime based on Stinchcombe or the third party disclosure regime based on R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, applies. Either way, the accused will eventually receive the disclosure they are entitled to.
[18] The main impact of granting a stay on the accused is on the timing of their trial. The accused wish to pursue pretrial applications to exclude evidence on the basis that their s. 8, 9 and 10(b) Charter rights were violated. Cst. Osborne’s credibility, to which the disclosure sought relates, will be a central feature of those applications. Unless the accused decide to proceed with their applications using only the disclosure they are entitled to receive apart from my pretrial disclosure ruling, neither their pretrial applications nor their trial can proceed until it is determined whether my disclosure ruling will stand.
[19] As I pointed out in my original ruling, the Crown and the Peel Regional Police have disclosed and have promised to disclose, considerable information about Cst. Osborne’s disciplinary record and outstanding charges. However, the accused should not have to proceed without the disclosure they are entitled to, whether under the first or third party regime, if they do not wish to do so.
[20] As I have said, the main impact of granting or refusing a stay is on the timeliness of the accused’s trial. Their pretrial motions were set to commence the day this stay application was argued. Their trial is scheduled to commence on January 11, 2021. Whether leave to appeal is granted or not, a stay of my disclosure order is likely to delay the trial unless the accused elect to proceed without receiving the additional disclosure my order requires.
[21] That said, I observe that neither of the accused are in custody. In addition, they will be free to pursue a s. 11(b) application in order to protect their s. 11(b) right to a trial within a reasonable time. Their rights can still be protected if a stay is granted.
[22] This last point contrasts with what will happen to the interests and rights of the Peel Regional Police and Cst. Osborne if a stay is not granted. As they are third parties in the proceedings against Mr. Ali and Mr. Taylor, they have no remedy available to them other than a direct appeal to the Supreme Court of Canada. If a stay is not granted they will likely be deprived of their only opportunity to have a remedy. This starts to tip the balance of convenience in favour of granting a stay.
[23] Another factor operates together with the last one to tip the balance of convenience further in favour of granting a stay. I agree with the submission made by Mr. Girdin, on behalf of Cst. Osborne, that the issue of whether the first party or third party disclosure regime applies in a case such as this is evasive of appellate review. The circumstances of such cases often lead to the issue becoming moot for one reason or another. The difficulty of getting such issues before an appellate court can be considered from the perspective of the public interest or of the interest of the parties. Either way, it helps to tip the balance of convenience in favour of granting a stay.
Conclusion
[24] When the parties re-appeared before me the day after this application was argued I advised them that a stay would be granted. However, I ordered that the stay would expire on the abandonment or dismissal of the leave application or, should leave be granted, 30 days thereafter. I held that an application to extend the stay could be sought within that 30 day period. Section 65.1 of the Supreme Court Act provides that terms can be imposed when granting a stay.
[25] I deemed this approach to be appropriate for a number of reasons. First, I have some concerns about the delay in bringing this stay application. It was not sought when the leave application was filed. It was sought only at the last possible moment, when the pretrial motions were about to commence. The leave application itself was filed at almost the last moment. It was filed beyond the normal 60 day period. Counsel advise me that that period was not extended on their application but by virtue of the summer schedule of the registry of the Supreme Court of Canada.
[26] I believe that because the s. 11(b) rights of the accused are implicated in the delay occasioned by the application for leave to appeal, this court should keep a close watch on developments. The balance of convenience could vary or change in this case as time passes. For example, Cst. Osborne is being prosecuted. As the facts in the McNeil case show, things can happen which affect the rights and interests which are at stake.
[27] In addition, when the disclosure motion was argued before me counsel for the Peel Regional Police and Crown counsel advised me that a security video, which supports the allegations in the outstanding charges against Cst. Osborne, and Cst. Osborne’s notes would be disclosed to counsel for the accused. In resisting the original disclosure application counsel for the Peel Regional Police and Crown counsel submitted that I should dismiss the application because the accused would have everything they needed to cross-examine Cst. Osborne. At para. 18 of my ruling I said: “I am advised the police will also be providing Crown counsel with a copy of Cst. Osborne’s notes and a copy of the security video of the arrest and alleged assault.”
[28] I was surprised to learn when this stay application was argued that that material had not been provided to the accused. When I made enquiries about why that was I determined that counsel are involved in an ongoing dispute about that matter. That dispute seems to relate to events which occurred after I was advised on June 23, 2020 that the material would be disclosed. As no evidence is before me about that dispute, I am in no position to consider its potential impact on the balance of convenience or the stay application at this time.
[29] On the record before me at the moment, I am satisfied that the interests of justice favour granting a stay of my disclosure order on the terms described. As the situation is fluid, the s. 11(b) Charter rights of the accused are implicated and there is a dispute about disclosure not covered by my previous order but which I was told would be disclosed, I am of the view that the stay should be open to further review if leave to appeal is granted. The granting of leave will further impact the timing of the trial. I also observe that the additional disclosure now in limbo would be important to the accused in determining whether to elect to forego the disclosure covered by my order and proceed with their applications and their trial.
[30] A stay of my disclosure order is made on the terms indicated.
Justice F. Dawson
Released: October 21, 2020
COURT FILE NO.: CRIMJ(P) 1986/19
DATE: 20201021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
DYLLAN ALI; DIQUAN TAYLOR
- and –
PEEL REGIONAL POLICE SERVICE
- and –
CONSTABLE SEAN OSBORNE
RULING
(Application to Stay Disclosure Order of July 17, 2020)
Justice F. Dawson
Released: October 21, 2020