Court File and Parties

COURT FILE NO.: CR-19-1623 DATE: 20201119

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Jennifer Campitelli, for the Crown

• and -

KYLE SOOBRIAN Applicant

Virgil E. Cojocaru, for the Applicant

• and -

PEEL REGIONAL POLICE

Sharon Wilmot, for Peel Regional Police

HEARD: November 13, 2020

REASONS FOR JUDGMENT ON APPLICATION FOR DISCLOSURE AND THIRD PARTY RECORDS

J.M. WOOLLCOMBE J.

Introduction

[1] The applicant, Kyle Soobrian, is charged with multiple counts of trafficking in a controlled substance and possession of a Schedule 1 substance for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act. His trial is scheduled to begin on May 10, 2021.

[2] The applicant seeks an order for “first party” disclosure of disciplinary records of two officers involved in the investigation of him. In the alternative, if the records and information sought are properly understood as third party records, he seeks a finding that they are likely relevant and so should be produced to the court for inspection and a determination as to what should be released to the defence.

Relevant Facts Relating to the Police Investigation

[3] In April 2018, Peel Regional Police (“PRP”) began an investigation into the sale of fentanyl in a specific area of Mississauga. Acting in an undercover capacity, Constable (Cst.) Matthew Boycott went to a Tim Horton’s in the area and inquired about buying fentanyl.

[4] On May 18, 2018, an individual named “Gary” connected Cst. Boycott with the applicant. It is alleged that Cst. Boycott purchased heroin and fentanyl from the applicant. It is further alleged that over the period from May 18 through to June 5, 2018, five other undercover officers purchased various drugs including fentanyl, heroin and cocaine from the applicant.

[5] On June 8, 2018, the police executed a search warrant on two residences associated with the applicant and a vehicle that surveillance had linked him to. Police seized cocaine, oxycodone, phenacetin and a combination of heroin and fentanyl. Cst. Daniel Young was the exhibits officer during the execution of the search warrant. He had also been involved in some of the police surveillance of the applicant conducted on June 5 and 8, 2018.

The Material Sought

[6] In respect of Cst. Young, the Crown disclosed to the applicant as first party disclosure that:

• Cst. Young was previously the subject of an internal police investigation into alleged theft of money during a criminal investigation and that these allegations were found to be unsubstantiated;

• Cst. Young is the subject of an ongoing investigation for which he has been under suspension. There is an allegation of breach of trust for allegedly providing confidential information to a civilian.

[7] In respect of Cst. Boycott, the Crown disclosed to the applicant, as first party disclosure, a Hearing Disposition dated February 28, 2012. It reveals that Cst. Boycott pleaded guilty to three counts of misconduct under the Police Services Act. The Hearing Disposition sets out the agreed facts supporting the misconduct finding for each of the three counts and the reasons for imposing as penalty the forfeiture of 16 days.

[8] In his written materials, the applicant sought:

a) The PRP complete disciplinary file for Cst. Young including pending/ongoing investigations;

b) The PRP complete disciplinary file for Cst. Boycott

c) Information held by PRP and Cst. Boycott in relation to “Gary” and his involvement in the investigation

[9] The application is brought pursuant to s. 7 of the Charter on the basis that the material sought is relevant to the assessment of the credibility of officers and thus necessary to make full answer and defence.

[10] At the outset of the oral hearing, the Crown advised me that as a result of an unreported Ruling of Durno J. of July 20, 2020, which impacts the proceedings involving Cst. Young (R. v. Named Person #3, CR-19-1616), the Crown has stayed all of the applicant’s charges in which Cst. Young was the exhibits officer. The Crown advises that as a result, Cst. Young is no longer a material witness for any charge faced by the applicant and that he will not be called by the Crown at the applicant’s trial.

[11] The Crown further advised that in support of each count with which the applicant is charged, it will adduce the evidence of the undercover officer who is said to have made the drug purchase. Any surveillance evidence that Cst. Young could provide will not be adduced.

[12] Counsel for the applicant maintains that records he seeks in relation to both Cst. Young and Boycott should be disclosed, although he has modified to some extent what he seeks in relation to Cst. Boycott. He also continues to request disclosure of the information he seeks in relation to “Gary”.

Legal Principles

First Party Disclosure

[13] In order to protect an accused’s Charter right to make full answer and defence, the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. The Crown’s ongoing disclosure obligation is triggered by a request from the defence: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.); R. v Gubbins, 2018 SCC 44 at paras 18-20.

[14] Disclosure is the obligation of the prosecuting Crown. The Stinchcombe obligation does not refer to all Crown entities. Other Crown entities, including the police, are “third parties” for the purpose of disclosure. However, the Crown is required to make reasonable inquiries when put on notice of material in the hands of the police that is potentially relevant. The police have a duty to disclose “all material pertaining to its investigation of the accused”: R. v. McNeil, 2009 SCC 3 at para. 49. This material is often referred to as the “the fruits of the investigation”.

[15] In R. v. McNeil, the Supreme Court of Canada explained at para. 59 that the police may be required to hand over information beyond the fruits of the investigation where that information is “obviously relevant to the accused’s case”. First party disclosure thus includes not only information in the investigative file, but other information that is “obviously relevant”. As Watt J.A. held in R. v. Jackson, 2015 ONCA 832 at para. 125, that phrase did not set a “new standard or degree of relevance” but “describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused's ability to meet the Crown's case, raise a defence, or otherwise consider the conduct of the defence.” The police are required to hand such information to the Crown for disclosure: R. v. Gubbins at para. 23.

[16] When considering allegations of police misconduct, it is not always clear whether an officer’s disciplinary file is first party disclosure. In R. v. McNeil, the Court stated at para. 15 that “findings of serious misconduct by police officers involved in the investigation against the accused” are properly understood as first party disclosure “where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused”.

[17] However, as was emphasized by the Supreme Court of Canada in R. v. Gubbins at para. 24:

… not all police records will be subject to first party disclosure. For example, as this Court noted in McNeil, "not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused's case": para. 59. Similarly, as the Alberta Court of Appeal stated in R. v. Black, 2011 ABCA 349, 286 C.C.C. (3d) 432 (Alta. C.A.), at paras. 37-38:

All McNeil established is that disclosure of police misconduct records where they are obviously relevant is a matter of first party disclosure. In reaching that conclusion, the Supreme Court likened those types of records to records relating to convictions for perjury for Crown witnesses. Only records of misconduct that are obviously relevant form a part of first party disclosure. If the record of police misconduct is not obviously relevant, an accused person can still gain access to it relying on the O'Connor process for third party disclosure.

For all other records held by a public body, including the police, the Stinchcombe-O'Connor distinction continues to be the rule. The police are required to disclose the investigative file as first party Stinchcombe disclosure and other files or records in the hands of the police are subject to the O'Connor process. This would include files relating to complaints of criminal activity by Crown witnesses and the operational records of the police force or government body from whom records are sought.

Third Party Records

[18] Where an accused seeks information or records that are not first party disclosure, an application must be made to the court. These records are dealt with in accordance with the process set out in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. The accused must demonstrate on a balance of probabilities that the material sought exists and that the information sought is “likely relevant”. If that burden is discharged, the records are produced to the court, which then considers the extent to which they should be disclosed.

[19] The “likely relevant” threshold is significant but not onerous. It means that there is "a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify". The threshold is lower than “true relevance” and "includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence": R. v. O’Connor, at paras. 22-24; R. v. McNeil, at paras. 29, 33; R. v. Gubbins, at paras. 26-27.

Analysis

[20] I have considered each of the records sought by the applicant.

The Records in Relation to Cst. Young

[21] Despite the fact that Cst. Young will not be called as a Crown witness at his trial, the applicant says that the contents of his disciplinary file are first party disclosure. He says that there is a reasonable possibility that the information in the disciplinary files could be useful to the defence and that it may assist in making full answer and defence.

[22] The defence position, as I understand it, is that even though Cst. Young will not be called as a Crown witness, his credibility is still at issue because he was involved in surveillance of the applicant. Counsel submitted that following the Crown stay of some of the charges, the disciplinary investigation was “more relevant” because counsel has less evidence to question the credibility and reliability of the officer. Counsel suggests that there may be material in the disciplinary file that would be relevant to the officer’s credibility or, relying on R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307 at para. 62, that would make “it possible to discover and explore new avenues of investigation”. Counsel emphasizes that it was not fair for him not to have any information as to what is contained in that file.

[23] I cannot accept the applicant’s position that there is unfairness because he knows “nothing” about Cst. Young’s disciplinary history. To the contrary, counsel has been told that there was an unsubstantiated internal investigation into the alleged theft of money during the course of a criminal investigation. Counsel has also been told that about the existence of an ongoing investigation, and been provided with a redacted copy of Durno J.’s decision in R. v. Named Person #3. That decision sets out the nature of the allegations against Cst. Young in some detail.

[24] I do not accept the applicant’s position that Cst. Young’s disciplinary file is first party disclosure. This disciplinary file is not in the hands of the Crown and remains in the control of the PRP. There are documents respecting both a prior unsubstantiated allegation of wrong-doing and an ongoing investigation into an alleged breach of confidentiality. There has been no finding of serious prior misconduct ever made against Cst. Young. Cst. Young will not be a Crown witness at the trial. In all these circumstances, see no basis upon which to conclude that the disciplinary file of this officer, who will not be a Crown witness, is “obviously relevant”. It is not first party disclosure. I conclude that disclosure of these records must be decided in accordance with the O’Connor third party records test.

[25] Accordingly, I will address now to the question of whether the applicant has met his burden of establishing that the material in Cst. Young’s disciplinary file is “likely relevant”. The test at this stage is higher than the test for Stinchcombe disclosure which asks only whether the information may be useful to the defence.

[26] I find that the applicant has failed to demonstrate that the material in the disciplinary file is “likely relevant” as that term is properly understood. Indeed, counsel for the applicant has not articulated any basis for me to find that Cst. Young’s disciplinary file could have any relevance at the trial. Cst. Young had no role in the case that the Crown will present. The officer will not be a Crown witness. Nothing he did in the investigation will be before the court. To the extent that counsel makes general statements about the records being relevant to the officer’s credibility, it is significant that there will be no opportunity for the applicant to challenge his credibility because he will not be testifying as a Crown witness.

[27] I accept the applicant’s contention that Cst. Young was involved in surveillance of the applicant. But, that evidence will not be adduced or relied upon. To be clear, even though the officer conducted surveillance of drug transactions allegedly conducted by the applicant, the Crown will rely exclusively on the evidence of the undercover officer to whom drugs were allegedly sold to support the allegations. I fail to see how the fact that Cst. Young conducted surveillance makes his disciplinary file relevant.

[28] When it was put to counsel for the applicant that it was difficult to see how the records were relevant when Cst. Young would not be called as a Crown witness, his response was that Cst. Young could be called by the defence. I accept this. But, counsel could not articulate how the information in the disciplinary file could be relevant were the defence to call Cst. Young. The defence could not seek to impugn its own witness with material in the disciplinary file. Although counsel repeatedly asserted that the information in the file could be used to “discover and explore new avenues of investigation”, he offered no further explanation as to what that means in the context of this case.

[29] In my view, the defence request for the production of Cst. Young’s records, in the context of the case that the Crown will be presenting, amounts to a fishing expedition. It is purely speculative to say that the records are likely relevant. The applicant has failed to meet his burden of showing that Cst. Young’s disciplinary file should be produced for the court to inspect.

The Records in Relation to Cst. Boycott

[30] In accordance with its obligations under R. v. McNeil, the Crown has made first party disclosure of the Hearing Disposition of Superintendent Roselli respecting Cst. Boycott’s previous misconduct. This is a disciplinary “finding”.

[31] That record indicates that on December 19, 2011, Cst. Boycott appeared in response to a Notice of Hearing issued on July 2011 containing one count of unlawful or unnecessary exercise of authority and two counts of neglect of duty. He entered a guilty plea to all three counts. The first count involved an arrest where the officer lacked reasonable and probable grounds. The neglect of duty counts relate to a failure to properly document payment to and contact with an informant. While the dates of the offences are not specified, they appear to have occurred in early 2009, with count three occurring in March 2009.

[32] This Hearing Disposition makes reference to the Agreed Statement of Facts, contained in Exhibit 4, and sets out the facts that supported the guilty plea. It also summarizes relevant positive information contained in the officer’s employment profile, which was Exhibit 6 on the proceedings. Ultimately, on February 28, 2011, Superintendent Roselli acceded to a joint position on disposition of the forfeiture of 16 days.

[33] In the course of the Hearing Disposition, reference is made to the fact that on March 11, 2010, an Informal Disciplinary Review Board assessed Cst. Boycott a penalty of 16 hours forfeited in relation to a failure to made notebook entries of a search and arrest that occurred on September 14, 2009. This informal unit proceeding relates to conduct that occurred after that considered in the Hearing Disposition.

[34] The applicant acknowledges that he has received, through the Hearing Disposition, the relevant first party disclosure. However, he asserts that there are additional third party records that that are likely relevant. These include:

• The Agreed Statement of Facts that formed the basis of the guilty plea (referred to in the Hearing Disposition as Exhibit 4);

• The file relating to the March 11, 2010 informal disciplinary review;

• Cst. Boycott’s employment profile (referred to in the Hearing Disposition as Exhibit 6)

• Cst. Boycott’s notes that were found to be insufficient.

[35] I understand the applicant’s position to be that the material he seeks should be available for his cross-examination of Cst. Boycott and to assist him in challenging the officer’s credibility and reliability. Counsel suggests that the defence position will be that Cst. Boycott did not take fulsome notes in his interactions with “Gary” and that this is similar to what occurred previously.

[36] Counsel also suggested that the records sought are relevant to the possible defence of entrapment, although no elaboration was provided as to how.

[37] Counsel for PRP takes the position that none of the records sought are likely relevant. It is counsel’s position that the applicant has the disciplinary findings and that, to the extent that the applicant is entitled to challenge Cst. Boycott’s credibility and note-taking, he has the findings to do so.

[38] The Crown submits that its position will be that the applicant is not entitled to cross-examine Cst. Boycott about the prior findings of misconduct. The Crown says that the prior misconduct related to notes in respect of an informant and so is different from the notes in this case. She also highlights that the earlier incident was in 2009, nine years before this investigation, which took place in 2018. She indicates that at trial, she will oppose cross-examination of Cst. Boycott on his prior misconduct.

[39] I am not asked to rule on the issue of whether the defence will be permitted to cross-examine the officer respecting prior findings of misconduct. That will be for the trial judge. I will say, however, that it is not immediately clear to me why, if the defence position is that Cst. Boycott is not credible respecting his interactions with “Gary”, that he did not record relevant information in his notes and that he has a history of omitting to note important information, cross-examination in this area would be prohibited.

[40] I shall consider each of the records the applicant seeks separately.

[41] First, I consider whether the applicant has established that Exhibit 4, the Agreed Statement of Facts supporting the plea, is likely relevant and should be produced to the court.

[42] Counsel for the PRP advises that, while she has not checked, because there was not advised that there was a specific request for Exhibit 4, she believes that the redacted agreed facts set out in the Hearing Disposition are a verbatim recitation of the facts in Exhibit 4.

[43] When I read the Hearing Disposition, it appears to me that Superintendent Roselli has likely quoted the entire Agreed Statement of Facts and then relied on it as the basis for his conclusion as to disposition. It is not altogether clear, however, whether there is any additional information contained in Exhibit 4 beyond that quoted in Hearing Disposition.

[44] It is my view that if there are facts in Exhibit 4 beyond those excerpted in the Hearing Disposition, that record is likely relevant. Assuming, for the moment, that cross-examination of Cst. Boycott in this area is permitted by the trial judge, I think that the totality of the Agreed Statement of Facts could be of significant assistance to the defence in formulating and structuring questions of Cst. Boycott to advance the defence position: R. v. Ali, 2020 ONSC 4410 at para. 54.

[45] While the applicant has a detailed set of facts upon which Cst. Boycott was disciplined, counsel for the PRP is to determine whether Exhibit 4 has any additional facts to which Cst. Boycott admitted. If it does, the PRP may either chose to disclose Exhibit 4 as first party disclosure or, if disclosure is opposed, may produce it to the court for further submissions as to whether it should be produced to the defence.

[46] In terms of the March 2011 Informal Disciplinary Review Board assessment, counsel for the PRP explained that this refers to a unit level disciplinary action that took place under the Police Services Act. She indicates that it would have been a less serious type of employment matter and that there would have been no Notice of Hearing issued, no formal “decision” and no further material in Cst. Boycott’s file because it would have been expunged from the file after two years, or in March 11, 2012. That said, because no specific request was made for these records, counsel has not conducted any review of PRP files to see whether there are, in fact, any further documents respecting this.

[47] This appears to have been a relatively minor transgression in that it warranted only an informal disciplinary proceeding and a penalty of the forfeiture of 16 hours. The misconduct was eight and one half years before the investigation in this case. Counsel knows generally what was alleged, what the finding was and what penalty was imposed. While there may well be nothing further respecting this in Cst. Boycott’s file, if there is any sort of written decision or further details respecting the facts that supported this finding of misconduct, I think those records would meet the likely relevant threshold. Assuming, again, that cross-examination of Cst. Boycott in this area is permitted by the trial judge, these documents would be important for the applicant to consider in planning and conducting his cross-examination of Cst. Boycott.

[48] Counsel for the PRP is to determine whether there is any record of a written decision or further details respecting the facts that supported this finding of misconduct. If such records are located, the PRP may either chose to disclose them as first party disclosure or, if disclosure is opposed, may produce them to the court for further submissions as to whether they should be produced to the defence.

[49] The employment profile that is sought, identified as Exhibit 6, is Cst. Boycott’s employee file as it stood in 2011 and would include his training and personal details. Counsel for the applicant offers no basis upon which to find that it is likely relevant. I do not find that the applicant has not met his onus of establishing that Exhibit 6 is likely relevant. To suggest that it could have any relevance is, in my view, wholly speculative. I decline to order it produced to the court.

[50] Finally I turn to the issue of whether Cst. Boycott’s notes from the incidents of misconduct are likely relevant. The findings of misconduct have been made. The applicant has not suggested that there is any basis to go behind those findings. I cannot see how the actual notes of the officer that formed the subject matter of the misconduct could be relevant at the applicant’s trial. I decline to order them produced to the court.

Records Respecting “Gary”

[51] The applicant’s position is that the PRP have further information about “Gary” that he wishes disclosed.

[52] The Crown advises that the Officer-in-Charge of the case was tasked to verify if the PRP have any further information about “Gary”. He has told the Crown that they do not. The Crown further advises that the PRP have returned to the Tim Horton’s to try to locate “Gary” and have been unsuccessful in doing so. The PRP say that they have no contact information for him.

[53] Cst. Boycott testified at the discovery that he never asked “Gary” for his phone number and that he does not have it or any other contact information for him.

[54] In my view, there is no evidentiary basis upon which the order sought by the applicant can be made. The only records relating to police interaction with “Gary” are contained in Cst. Boycott’s notes, which have been disclosed. There is no basis to suggest that the PRP have anything more. I decline to make any order respecting “Gary”.

Conclusion

[55] For the reasons set out, the application is dismissed except that the PRP is required to ascertain:

• whether Exhibit 4 has any additional facts to which Cst. Boycott admitted that are not included in the Hearing Disposition; and

• whether there exists any record of a written decision or further details respecting the facts that supported the March 11, 2010 Informal Disciplinary Review Board finding of misconduct respecting Cst. Boycott.

[56] If any of these records are found by counsel for the PRP to exist, they may be disclosed as first party disclosure or, if disclosure is opposed, are to be produced to the court for inspection and a date set for submissions respecting disclosure before me.

Woollcombe J.

Released: November 19, 2020