COURT FILE NO.: CR-11-3244

DATE: 2020-11-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JEREMY HALL

Applicant

S. O’Brien and M. Dean, on behalf of the Crown Attorney

D. Derstine and R. Gregor, on behalf of the Applicant

M. Sokolski, for the Crown Attorney- Niagara Region, K. Edward, for J. Lusted. No one appearing for M. McInnis.

HEARD: October 16, 30, and November 17, 2020

A.J. Goodman J.:

RULING WITH RESPECT TO FURTHER DISCLOSURE OR PRODUCTION OF DOCUMENTS RELATED TO JASON LUSTED

[1] The applicant, Jeremy Hall (“Hall”) is alleged to have committed First degree murder in relation to the 2006 disappearance of Billy Mason (“Mason”). At trial, Jason Lusted (“Lusted”), an alleged accomplice in the murder of Mason and the disposal of his body, testified and provided evidence.

[2] The applicant requests disclosure or production of records and information related to the investigation into Lusted’s participation and subsequent charges for a recent murder in the Niagara region, that only recently came to counsels’ attention.

[3] Prior to the submissions of the parties, I had not seen the documents, nor had either the Crown attorney or applicant’s counsel.

[4] My decision, in part, was given orally from the bench on October 30, 2020, with reasons to follow. I conclude that the disclosure sought by the defence falls within the third party O’Connor regime, and that the defence has established that the requested disclosure is “likely relevant” to the applicant’s motion to reopen the case.

Background:

[5] The applicant was initially tried in the Superior Court of Justice in Hamilton by Lofchik J., sitting with a jury. On March 5, 2013, the applicant was convicted of First degree murder. On February 26, 2018, the Ontario Court of Appeal allowed the applicant’s appeal against conviction and remitted this matter for a new trial, which commenced on January 13, 2020. This re-trial was interrupted for approximately four months due to the ongoing COVID-19 pandemic. Closing submissions commenced on August 27, 2020 and concluded on September 3, 2020. I have not yet rendered a judgement.

[6] On October 13, 2020, defence counsel became aware that Lusted had been charged alongside Matthew McInnes (“McInnes”) with the offence of Second degree murder. Defence counsel also received information that McInnes was a resident of the Smithville area. The court was advised that defence counsel would be seeking to reopen the evidence in this matter and corresponding disclosure requests were made to the Crown.

[7] On October 14, 2020, Crown counsel provided defence counsel with a synopsis pertaining to the new charges against Lusted and McInnes. That same day, defence wrote to the Crown and requested further disclosure, and noted that defence would not be able to file their application to reopen the evidence until such disclosure was received.

[8] On October 16, 2020, the parties appeared before me to address the reopening of the evidence. Defence took the position that they would be bringing an application, but first sought further disclosure from the Crown. I encouraged the parties to have discussions in this regard and adjourned the matter to October 30, 2020, (the original date scheduled for the rendering of my judgment).

[9] Defence counsel wrote to the Crown seeking further disclosure. On October 18, 2020, Crown responded to the request and took the position that the information was not relevant and thus no disclosure obligation was triggered.

[10] On October 20, 2020, defence indicated to the Crown that prior to bringing the application to reopen the evidence, disclosure was required and that the issue of disclosure must first be litigated. The Crown took the position that the proper way to address the disclosure issue would be for the defence to bring a written application to obtain the disclosure.

[11] Defence wrote to the court to alert me that it was parties’ intention to utilize October 30, 2020 to argue the disclosure application. I inquired into whether Lusted was represented by counsel. Defence took the position that Lusted and his co-accused did not have a reasonable expectation of privacy in the records sought and, therefore, did not have standing at the application. The Crown took the position that the following parties had privacy interests in the records and should therefore be served with the motion:

i. Hamilton Crown Attorney’s Office – Mark Dean and Steve O’Brien;

ii. St. Catharines Crown Attorney’s Office – to the attention of Crown Attorney, Michael Sokolski;

iii. The Niagara Regional Police – to the attention of Det/ Sgt. Steve Magistrale;

iv. Kim Edwards – as counsel for Mr. Lusted; and

v. Andrew Burton – as counsel for co-accused Matthew McInnes.

[12] On October 23, 2020, Crown wrote both to the court and to defence to express that it was of the view that the issue of leave to reopen this case must be adjudicated prior to the disclosure application. Crown counsel stated that a party cannot bring a motion for disclosure once both parties have closed their case, and that for the disclosure motion to occur, the case would first have to be reopened.

[13] On October 24, 2020, defence wrote to the Crown and requested disclosure in relation to Lusted’s new charges pertaining to an assault of a prison guard. Defence also indicated that they disagreed with the Crown’s latest procedural position pertaining to the disclosure motion. The Crown was notified that defence intended to proceed with the application as scheduled. The Crown declined to provide disclosure relating to the prison assault.

[14] All relevant parties were advised of date of the motion. The Officer in charge of the Niagara Police investigation, Sgt. Pierini, had been notified of the application by defence and placed under subpoena.

[15] In court on October 30, 2020, Mr. Sokolski advised that due to the freshness of the charges facing Lusted, the requested disclosure was still in the hands of the Niagara Regional Police Service and had not yet been received by the St. Catharines Crown Attorney’s office.

Issues:

[16] The issues before me are as follows:

a. Should the application for disclosure precede the application to reopen the case?

b. Which disclosure regime applies to the requested documents?

c. Has the defence met the requisite onus under the relevant disclosure regime?

Positions of the Parties:

[17] The applicant submits that the records requested are covered by the first party disclosure regime. As such, the records must be disclosed unless clearly irrelevant pursuant to the standard for disclosure articulated in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326.

[18] According to the defence, the Hamilton Crown’s Office had easy access to the synopsis of the Second degree murder charges, and at minimum, has constructive possession of the St. Catharines’ file as both the applicant’s matter and Lusted’s new trial fall under the provincial Crown’s jurisdiction.

[19] The applicant argues that the fact that the offices are located in different jurisdictions does not automatically make them different entities for the purpose of disclosure. Whether a subset of an entity is third party is contextual, and must be determined on a case-by-case basis, having regard to all of the circumstances.

[20] It is submitted that where an accused person faces criminal charges, the police have a duty to disclose to the Crown all relevant information in their possession relating to those charges. This includes materials that comes to the attention of the defence event after all of the evidence has been heard and submissions made, but prior to a verdict being delivered.

[21] In the alternative, the applicant submitted that should the court find that the third party disclosure regime applies, that the test for production set out in R. v. O’Connor 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 is satisfied.

[22] The applicant argued that the impugned disclosure is likely relevant to the case at bar with respect to the following issues:

a. the credibility, reliability, and propensity of Lusted;

b. alternative explanations for seemingly corroborative evidence such as the burning truck and cell phone pings; and

c. Lusted’s connection to people (McInnes), places, and events in the Smithville area – a location of central importance in this trial.

[23] The applicant says that from a procedural stand point, they would not be in a position to file their application to reopen the evidence until the requested disclosure was received.

[24] Finally, the applicant submits that he requires these documents in order to make full answer and defence and to be able to fairly argue the reopening of the case and, if granted, to fully cross-examine Lusted.

[25] The Crown responds that the records sought by the applicant are not first party disclosure because they are not in the possession or control of the prosecuting Crown or the investigator. The Crown is not, and has never been, in possession of the records sought. The Crown argues that the prosecuting Crown does not have “constructive possession” of a password protected, external hard drive, storing records of an outside Crown agency and police force. Instead, the Crown submits that the records are held by a third party that is not the investigating state authority. That third party, the Niagara Police, have no duty to provide their investigative file or other records to the Hamilton Crown’s office. Finally, the Crown argues that the records sought are not obviously relevant to the applicant’s trial.

[26] In terms of procedure, the Crown attorney submitted that the application to reopen the case ought to precede the disclosure application.

[27] In the alternative, the Crown attorney for Hamilton and Niagara submit that the applicant’s request does not fall under the first party records regime and, if to be produced, properly falls under the third party records production and the O’Connor principles apply.

[28] Further, the Crown disputes that the records are neither disclosable nor do they meet the standard of likely relevance under the third party disclosure regime. The case is complete, the evidence has been heard and judgment is awaited. For the records sought to be released, there must be more than bald assertions of relevance in order to produce the records, especially at this late stage of the proceedings. It is submitted that had the court ruled on its verdict earlier, this application would have been moot.

[29] The Crown submits that there is no merit to the application and the applicant has not substantiated the basis for this motion in accordance with the well-established legal principles.

[30] Ms. Edward voiced her concerns as to the release of the information as it pertains to the privacy interests of her client.

Issue One: Should the application for disclosure come before the application to reopen the evidence?

[31] As a preliminary issue, I was tasked with deciding whether to allow the defence application for disclosure to precede the application to reopen the evidence.

[32] While I acknowledged Crown counsel’s concern that allowing disclosure applications to continue after the evidence has closed may run the risk of unduly extending the trial process, and as that all of the evidence has been tendered, I was satisfied that as a matter of procedure, the application for disclosure should come first.

[33] In making this decision, I accepted the defence submission that without the requested disclosure, they would be forced to argue the application to reopen the case in a vacuum. Also relevant to my determination was the fact that I have not yet entered a verdict nor otherwise finally disposed of the case, and the trial is still ongoing. The caselaw provides that a trial judge sitting without a jury may permit the reopening of the evidence at any time before a sentence is passed: R. v. Hayward (1993), 1993 CanLII 14679 (ON CA), 67 O.A.C. 379 (C.A.).

[34] Flowing logically from this principle is the notion that the trial is not complete, and I am not functus officio. Hence, I agreed that the issue of disclosure or productions of documents in that investigation need be addressed and ruled upon prior to the any application to reopen.

Issue Two: Which disclosure regime applies to the requested documents?

Legal Principles:

[35] There are two mechanisms by which an accused person can obtain disclosure: first party disclosure pursuant to Stinchcombe, as supplemented by the duties imposed upon the Crown and investigating police in R. v. McNeil, 2009 SCC 3, and third party disclosure pursuant to O’Connor. The first party disclosure regime governs the disclosure of information in the possession or control of the prosecuting Crown, while the third party regime governs the disclosure of information in the hands of strangers to the litigation. Each regime serves to protect the accused’s right to make full answer and defence, while simultaneously recognizing the need to put limits on disclosure when required: R. v. Pascal, 2020 ONCA 287, at para. 100.

[36] It is trite law that pursuant to Stinchcombe, the Crown has a duty to disclose all relevant, non-privileged information in its possession or control. This duty exists even where the materials’ only value is to assist the accused in their defence: see Stinchcombe, at para. 9. This obligation is ongoing and does not cease when the evidence in a trial has closed; indeed, it continues into the appeal process: Stinchcombe, at para. 28; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at paras. 18-19.

[37] For the purposes of first party disclosure, “the Crown” refers to the prosecuting Crown. It does not refer to all Crown entities; other Crown entities and police agencies are considered third parties: R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at para. 80; Gubbins, at para. 20.

[38] However, there is an exception to this general rule. Where the police act as the investigating state authority, they are subject to a “necessary corollary obligation” to produce the fruits of the investigation to the prosecuting Crown: McNeil, at paras. 14, 25.

[39] The “fruits of the investigation” refers to the police’s investigative files; information acquired during or as a result of the specific investigation into the charges against the accused: Gubbins, at para. 22. Falling under this umbrella is “relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence”: Jackson, at para. 92.

[40] However, as explained by Watt J.A. in Pascal, at para. 106, “the police obligation of disclosure to the prosecuting Crown extends beyond the “fruits of the investigation”. In addition, the police should also disclose any information that is “obviously relevant” to the accused’s case, such as information that relates to the accused’s ability to raise a defence.

[41] Thus, even where other Crown entities and police agencies are third-parties, the prosecuting Crown is still obliged to make reasonable inquiries with respect to records and information in their possession. As stated in McNeil, at para. 25, while “the police and Crown may be viewed as one entity for disclosure purposes, the two are unquestionably separate and independent entities, both in fact and in law.”

[42] Aside from the exception that the investigator must participate in the disclosure process, records of the hands of third parties and other Crown entities are typically not subject to first party disclosure. This is because third parties are under no obligation or duty to assist the parties in litigation or to disclose information to them. To access records of this nature, the accused must establish likely relevance under the third party O’Connor regime.

[43] In determining which disclosure regime applies to the information requested, the court must consider the following, as recently outlined by Watt J.A. in Pascal, at para. 107:

a. Whether the information sought is in the possession or control of the prosecuting Crown; and

b. Whether the nature of the information sought is such that the police or another Crown entity in possession or control of it should have supplied the information to the prosecuting Crown.

[44] Where the information is part of “the fruits of the investigation” or is “obviously relevant”, the second question will be answered affirmatively. An affirmative response on either of these issues means that Stinchcombe disclosure applies: Pascal, at para. 107; R. v. Gubbins, at para. 33.

Discussion:

[45] The records or documents to be reviewed are the Niagara Police records with respect to a first degree murder investigation involving Lusted.

[46] Pursuant to the test in Pascal, the first issue I determined was whether the information sought was in the possession of the prosecuting Crown.

[47] The crux of the applicant’s position was that the St. Catharines and Hamilton Crown offices are emanations of the same, broader entity: the “provincial Crown.” According to the defence, provincial Crown offices are indivisible. To illustrate this point, counsel indicated that the operation of bail court demonstrates the cross-jurisdictional nature of the provincial Crown. The defence emphasized that Hamilton and St. Catharines are neighbouring jurisdictions, and pointed to the fact that it only took 24 hours to receive a synopsis of Lusted’s new charges from the Hamilton Crown as being emblematic of the close working relationship between the two offices. As such, it is argued that the Hamilton Crown had “constructive possession” of the records because the Hamilton Crown was aware of the information and had a mechanism to access it.

[48] The Crown rejected the defence’s assertion that all provincial Crown offices are indivisible, and emphasized that in general, the prosecuting Crown does not have “constructive possession” of a password protected, external hard-drive, storing records of an outside Crown agency and police force. Inherent in the Crown’s argument was the notion that the “prosecuting Crown” refers to the specific, regional Crown office, and does not refer to the distinction between the provincial Crown and federal Crown. Moreover, as a matter of logistics, at the time this application was argued before me, the St. Catharines Crown attorney’s office was not yet in receipt of the records relating to Lusted, although there was no dispute that this was due to the freshness of the charges. [^1]

[49] The jurisprudence is clear that “Crown entities other than the prosecuting Crown – including the police – are third parties for the purposes of disclosure”: Pascal, at para. 103; McNeil, at para. 13 and 22; Gubbins, at para. 20; and R. v. Quesnelle, 2014 SCC 46, [2014] S.C.R. 390, at para. 11. At first blush, this entrenched legal principle appears to provide a full answer to the question of whether the Hamilton and St. Catharines Crown offices are indivisible. However, the defence raised the proposition that prosecuting Crown refers not to the specific Crown office, but to the division between the provincial Crown and federal Crown more generally.

[50] I reject the defence argument that the Hamilton Crown Office and St. Catharines Crown Office are indivisible. While they may indeed be subsets of the same entity, they are in practice distinct offices, located in different jurisdictions, complete with their own staff, policies and procedures. To collapse these two offices into one indivisible body for the purposes of disclosure would be to unduly broaden the scope of the Stinchcombe disclosure regime. The effect of doing so would render the first party disclosure regime unworkable, by subjecting all provincial Crown offices across Ontario to the heightened obligation to be “on notice” of potentially relevant information held in different jurisdictions. This would yield anomalous results, whereby every Crown prosecutor would have a duty to make broad inquiries of other Crown offices across the province prior to and during every trial.

[51] I appreciate the defence argument that in the context of this specific case, the two Crown offices in question are proximate in geography, as opposed to the practical difficulties that would result if the Crown office in possession of the records was located in a more remote jurisdiction. However, I found no compelling basis to diverge from the prevailing jurisprudence, which treats Crown agencies as distinct bodies for the purpose of disclosure, subject to the exceptions relating to the “fruits of the investigation” and “obviously relevant information”.

[52] Moreover, notwithstanding the fact that I find the Hamilton and St. Catharines Crown offices to be distinct entities for the purpose of disclosure, an awareness of the charges facing Lusted does not amount to possession or control of the information. This was specifically articulated by Watt J.A. in Pascal, at para. 124, as follows: “Even if it is to be assumed that the local Crown was aware of the antecedents of the witness, this does not amount to possession or control of the information.” Watt J.A. found that the prosecuting Crown in Kenora was not in possession of the impugned records, which remained in the control of the Kenora Police, the investigating police agency in that case.

[53] At the time of this application, the records were not in the possession of the St. Catharines Crown, and were in fact in the control of the Niagara Police. The investigation was not complete and disclosure had not been made to Ms. Edward on behalf of her client. As the prosecuting Crown in Mr. Lusted’s case did not have possession or the records, and considering my finding that the St. Catharines Crown and Hamilton Crown are distinct entities for the purpose of disclosure, I could not conclude that the Hamilton Crown had “constructive possession” of the requested documents.

[54] I will now move on to the second branch of the test laid out in Pascal, namely, whether the nature of the information sought by the defence is such that the Niagara Police or St. Catharines’ Crown should have supplied the information to the Hamilton Crown. In answering this question, I must address whether the information sought qualifies as “obviously relevant” to the applicant’s case, as there was no dispute that the requested information does not qualify as the “fruits of the investigation”.

[55] The defence submits that the St. Catharines Crown and Niagara Police are required to disclose the information because it is “obviously relevant” to the applicant’s prosecution. The defence relies on Pascal to support this position.

[56] The Crown submits that far from being “obviously relevant”, the defence has not established any relevance in the records.

[57] In Pascal, the Court of Appeal overturned a conviction on the basis that the Crown withheld disclosure that pertained to outstanding charges of a material Crown witness, Ms. Jarvis. The evidence Ms. Jarvis provided at trial corroborated the complainant’s account that she was the victim of a violent sexual assault and was relied on by the trial judge. At the time of the trial, this witness had some eight charges outstanding, none of which had been disclosed to the defence. Each of the charges post-dated the event that Ms. Jarvis witnessed. Just prior to trial, the witness provided a second statement that was inconsistent with her initial statement to the police.

[58] Post-testimony, Ms. Jarvis was charged with various other offences, some nearly a decade after the trial. A number of police officers gave fresh evidence on appeal that indicated that Ms. Jarvis had some notoriety in the Kenora drug sub-culture. On appeal, both parties agreed that the Crown had a first party obligation to disclose the outstanding charges of this witness prior to trial, but disagreed on the impact that the failure to disclose had on the outcome and fairness of the appellant’s trial.

[59] Watt J.A. was not satisfied that the information regarding Ms. Jarvis constituted “fruits of the investigation” but found that it was obviously relevant to the appellant’s case. In reaching this decision, Watt J.A. opined specifically on the relevance of outstanding charges, and stated that “Logically, [“obviously relevant information”] would include evidence that could be used to impeach the credibility of witnesses to be called to establish the accused’s guilt: Taillefer, at para. 62.”

[60] While Pascal speaks to the relevance of outstanding criminal charges facing a Crown witness, I find that the case is distinguishable on its facts, and does not support the defence position that the police records relating to Lusted command first party disclosure. For one, Ms. Jarvis was charged in Kenora by the Kenora Police, the same “investigating authority” in the appellant’s case. In this case, it is not in dispute that Lusted was charged in Niagara, by the Niagara police, and that should he be tried in court, he will be prosecuted by the St. Catharines Crown, not the Hamilton Crown. On this jurisdictional dimension alone, the facts are considerably different.

[61] Moreover, in Pascal, it was Ms. Jarvis’s outstanding charges at the time of her testimony that Watt J.A. emphasized as being particularly relevant, as they would have provided her with a motive to ingratiate herself with the police and prosecution: see paras. 152-153.

Facing charges laid by the same police service handling the appellant’s case, Jarvis may have been motivated to ingratiate herself with the police and prosecution. Between her first and second statements, Jarvis accumulated eight charges. Some were minor. Others – related to trafficking of cocaine – less so. None were resolved by the time of the appellant’s trial. Jarvis’ first statement, before the charges, was consistent with the appellant’s version of events. Her second, after the charges, was not. To the contrary, her testimony provided tailored support for the Crown’s position on contested issues at trial.

I take no position on whether Jarvis in fact altered her own account to curry favour with the prosecution. The relevant point is that Jarvis, at first a key but mixed witness for the Crown, 17 months later, on the morning of the first day of trial, while herself facing serious outstanding charges laid by the same police service that investigated the appellant, transformed into a witness who sealed the case for the Crown on the critical issue at the appellant’s trial, the sexual nature of the assault.

[62] In the case at bar, Lusted’s charges post-date his testimony by 226 days. At the time of his testimony, Lusted was not in the same position as Ms. Jarvis, as he had not yet committed the offence he is now alleged to have done. As stated simply by the Crown, “the event had not occurred.” Considering the lack of any temporal or factual nexus between the incident giving rise to Lusted’s charges and this trial, I found that the requested disclosure did not meet the threshold of “obvious relevance”.

[63] All circumstances considered, and in accordance with the prevailing jurisprudence, I conclude that the records in question are subject to the third party disclosure regime.

Legal Principles – Third Party Records:

[64] Having decided that this application is properly determined under the procedure set out in O’Connor; I next address the general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown.

[65] As noted in R. v. L.F. (2006), 2006 CanLII 1024 (ON SC), 37 C.R. (6th) 152 (Ont. S.C.), an accused often finds himself or herself in a dilemma, simply because he or she does not know what the records contain, and is thus hampered in his or her ability to demonstrate likely relevance. However, it is clear from the cases interpreting the legislative provisions, the applicant must demonstrate likely relevance through evidence, and not through speculation or assumptions. As stated by Doherty J.A. in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 at para. 53:

The likely relevance of the records to an issue at trial, a witness’ credibility or the competence of a witness to testify is a prerequisite to an order compelling production of the records to the judge. Moreover, “the onus is on the accused to establish likely relevance. In doing so, the accused cannot rely on speculative assertions.

[66] The test for "likely relevant" is whether there is a reasonable possibility that the information is logically probative to an issue at trial, including the credibility of witnesses and the reliability of evidence. This requires case-specific evidence or information to show that the record in question is likely relevant to an issue at trial. Under this framework, the threshold upon a party seeking production of records is not onerous.

[67] The first step of the procedure requires the accused to establish a relevance standard that is slightly higher than the “not irrelevant” standard enunciated for production of disclosure in Stinchcombe. In O’Connor the Supreme Court of Canada held that when an applicant seeks production of materials in the possession of third parties, the fact that the materials have not been used by the state in preparing its case and the third parties have no duty to assist the accused, warrants shifting the onus on the accused and imposing a higher threshold that that for disclosure.

[68] However, the court was quick to point out that the burden should not be interpreted as onerous upon the accused. This, in light of the applicant’s understandable inability to call significant evidence respecting the nature of the records, having not had an opportunity to see the records in advance. Moreover, the court is clear that a consideration of factors such as the witness’ privacy interests or the admissibility of the records in Court will play no part in the initial stage of the analysis: O’Connor, at paras. 19 and 24.

[69] In McNeil, at para. 33, the Supreme Court of Canada provided the following guidance in understanding the “likely relevance” threshold:

Likely relevant under the common law O’Connor regime means that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify (O’Connor, at para. 22 (emphasis deleted)). An “issue at trial” here includes not only material issues concerning the unfolding of the event which form the subject matter of the proceeding but also “evidence relating to the credibility of a witness and to the reliability of other evidence in the case” (O’Connor, at para. 22). At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position.

[70] Where there exists a reasonable expectation of privacy in the sought-after records, there exists competing constitutional rights – an accused’s s. 7 Charter right to a fair trial including the right to make full answer and defence, and, a third party’s right to privacy protected by the same constitutional regime. Although the court’s obligation is to balance those rights within the factual context of a specific prosecution, fair trial interests may require intrusion upon privacy. In R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at para. 94, the Supreme Court held:

In summary, the following broad considerations apply to the definition of the rights at stake in this appeal. The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in the private records of complainants and witnesses. Rather, the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses. It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.

[71] Once the applicant satisfies the trial judge as to the likely relevance of the records requested, the second stage involves the judge “examining the records to determine whether, and to what extent, they should be produced to the accused”. In making such a determination, the court must “examine and weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence”.

[72] In reviewing a record at the second stage of the analysis, Watt J.A. in R. v. B(P) 2015 ONCA 738, set out the factors that should be considered:

i. the extent to which the record is necessary for the accused to make full answer and defence;

ii. the probative value of the record;

iii. the nature and extent of the reasonable expectation of privacy vested in the record;

iv. potential prejudice to the dignity, privacy or security of the person of the individual who is the subject of the record; and

v. the effect on the integrity of the trial process of producing or failing to produce the record.

[73] I observe that in McNeil at para. 35, the Supreme Court commented on the use of the factors as set out in O’Connor, stating:

The factors set out in O'Connor should not be applied mechanically. It should be kept in mind that O'Connor involved the production of the complainant's private records in proceedings for a sexual offence, an area of law subsequently overtaken by Parliament's enactment of the Mills regime. Some of the factors listed in O'Connor, in particular items 4 and 5 above, were obviously tailored to meet the exigencies in sexual assault proceedings and, consequently, are unlikely to be of assistance in other contexts. Ultimately, what is required at this second stage of the common law regime is a balancing of the competing interests at stake in the particular circumstances of the case. No exhaustive list can be crafted to suit every situation […]

Discussion - Application to the Case at Bar:

[74] The test to order the production of records requires the applicant to satisfy me on a balance of probabilities that the records are likely relevant to an issue at trial and their production is necessary in the interests of justice. The added feature in this case is the fact that Lusted has completed his testimony and the trial evidence is complete.

[75] Indeed, I must balance the right of the applicant to make full answer and defence against the right to privacy and equality of those implicated in these records. If at the end of this process I am not certain as to whether or not to order production or there is a danger that the accused's right to make full answer and defence will be violated, the interests of justice require that I err on the side of production: Mills at paras. 132 and 137.

[76] Interestingly, and somewhat unique to this situation, I am advised that there is no jurisprudence for a similar application when a request for production of third party records is made at the end of a trial, after all witnesses have testified and just prior to final judgment.

[77] The applicant must satisfy me that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. Again, it bears repeating that in O’Connor, the court explained the meaning of “likely relevance,” emphasizing that the test may be met in cases where records relating to the credibility of a witness are sought and that the burden on the defence is not onerous.

[78] In the disclosure context, the meaning of 'relevance' is expressed in terms of whether the information may be useful to the defence ... in the context of production, the test of relevance should be higher: I must be satisfied that there is reasonable a possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. When we speak of relevance to an 'issue at trial', we are referring not only to the evidence that may be probative to the material issues in a case. (i.e. the unfolding of events) but also the evidence relating to the credibility of witnesses and to the reliability of other evidence in the case: O’Connor, at para 22.

[79] In McNeil, the Supreme Court of Canada explained that it is only in rare circumstances that records deemed relevant under stage 1 will be withheld from the defence. At para.42, Charron J. articulates this general principle, stating:

Once a court has ascertained upon inspection that third party records are indeed relevant to the accused's case, in the sense that they pertain to an issue in the trial as described above, the second stage balancing exercise is easily performed. In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. It may be useful to pose the question in this way: if the third party record in question had found its way into the Crown prosecutor's file, would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason to arrive at a different outcome on the third party production application. As we have seen, the Crown's obligation under Stinchcombe to disclose to the accused the fruits of the investigation in its possession does not signify that no residual privacy interest exists in the contents of the file. However, it does mean that, with few exceptions (including the Mills statutory scheme), the accused's right to access information necessary to make full answer and defence will outweigh any competing privacy interest. The same applies with respect to relevant material in the hands of third parties. This is particularly so in respect of criminal investigation files concerning third party accused.

[80] Even at this late stage of the proceedings, I am satisfied that the applicant laid some foundation to sustain the request for production. In my opinion, the applicant has demonstrated that the records requested are likely relevant to the case at bar as the information sought may relate to the particular issues raised in the applicant’s factum. Again, I refer to the following specific matters:

a) the credibility, reliability, and propensity of Lusted;

b) alternative explanations for seemingly corroborative evidence such as the burning truck and cell phone pings; and

c) Mr. Lusted’s connection to people (McInnes), places, and events in the Smithville area – a location of central importance in this trial.

Stage 2: The Salutary and Deleterious Effects of Production:

[81] One of the factors to consider at stage 2 of the court’s inquiry is that nature and extent of the reasonable expectation of privacy vested in the record. In McNeil, at para. 39, Charron J. provides some guidance regarding how to determine the nature and extent of any reasonable expectation of privacy. The following non-exhaustive list of factors is provided: How the record was created; who created the record; the purpose of the record; the context of the case in which the record would be used; who holds the privacy interest; the presence or absence of waiver; and whether the privacy interest extends to all parts of the record.

[82] At Stage 2, I can rely on tools such as judicial vetting and judicial summaries to balance concerns regarding individual privacy, probity of the records and the need to make full answer and defence.

[83] While fully recognizing the expectation of privacy in these records; I must examine and weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the applicant to make full answer and defence.

[84] Balancing the competing rights in question, I reviewed the records that relate to the materiality and probative value of the records in question, and limited to the specific issues advanced by the applicant.

[85] In the packages of materials filed, there is digital media and documents filed in relation to the Lusted murder investigation. In order to determine whether the production of the records is necessary in the interests of justice, I conducted an in camera inspection of the records.

[86] I am satisfied that certain limited excerpts in various reports contained in some of the records listed in Appendix “A” meet the test for actual relevance.

[87] Appendix “B” outlines the records, where upon an examination, with some very limited exceptions, I have determined that they are entirely unrelated or irrelevant to the issues in this application. For greater certainty, they do not touch upon any of the specific areas raised in this application for production. The information or records noted in Appendix “B” will not be disclosed.

Conclusion:

[88] For all of the aforementioned reasons, I conclude that:

a. the application for disclosure should precede the application to reopen the case;

b. the third party records regime applies to the requested disclosure; and

c. the applicant has met his burden of establishing that the disclosure or production of the records is “likely relevant”.

[89] I accept that records connected to the other homicide being investigated by the Niagara Police in relation to Lusted may provide information to substantiate the application to reopen the case.

[90] As the production of some specific records are necessary in the interests of justice, I order the relevant records found in Appendix “A” with any redacted excerpts be disclosed. These complete or partial records or documents have or will be produced on the following conditions:

(a) that the Crown attorneys, the applicant, and counsel for the applicant not disclose the contents of the excerpts or reports to any other person, except with the approval of the Court;

(b) that a copy of the record or excerpts, rather than the original, be produced; and that no copies of the record be made except with the approval of the Court;

(c) that at the conclusion of the case, and after the expiry of any time limit for appeal, or upon the disposition of any final appeal, the records shall be returned to the custodian of the records.

(d) The above-noted conditions do not apply to Lusted’s counsel.

[91] The remainder of the records shall continue to be sealed.

A.J. Goodman J.

Released: November 30, 2020

COURT FILE NO.: CR-11-3244

DATE: 2020-11-30

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JEREMY HALL

Applicant

RULING WITH RESEPCT TO FURTHER DISCLOSURE OR PRODUCTION OF DOCUMENTS RELATED TO JASON LUSTED

A.J. GOODMAN J.

Released: November 30, 2020

[^1]: At this juncture, I have not addressed the hospital records or any medical reports.