Factual Background

[1] Kevin Barreau is charged with various human trafficking offences under the Criminal Code, R.S.C., 1985, c. C-46.

[2] He is currently in the midst of a trial at the Ontario Court of Justice which commenced on 17 January 2020. On 25 September 2020, Mr. Barreau applied to have evidence resulting from a search of a mobile phone excluded, alleging a breach of his s. 8 rights under the Charter of Rights and Freedoms.

[3] Mr. Barreau claims that he was the victim of racial profiling during the police investigation. Counsel for Mr. Barreau intends to call a police officer, Constable Julie Rice, in support of the racial bias claim and subpoenaed her to appear at the trial.

[4] On 27 October 2020, Constable Rice filed an application in the Superior Court of Justice to quash the subpoena on the grounds that it was issued on the basis of records obtained in breach of settlement or litigation privilege, as well as citing personal hardship. As a result, the trial judge adjourned the pre-trial motions and directed that the trial properly commence and continue pending the resolution of the subpoena issue.

[5] In response, Mr. Barreau filed an application for mandamus ordering the issue of a subpoena for Constable Rice, In addition, he applied for a writ of procedendo ordering the trial judge to continue with the ongoing pre-trial motions.

[6] The subpoena motion was due to be heard on 4 December 2020 with the procedendo application to follow a week later on 10 December 2020.[^1]

[7] The Black Action Defence Committee (BADC) applies for leave seeking intervenor status on both hearings.

[8] At the end of oral submissions, I dismissed the application for intervenor status with reasons to follow.

Legal Principles

[9] The law provides that “absent a constitutional issue, leave to intervene is seldom granted in criminal appeals”: R. v. McCullough (1995), 1995 CanLII 585 (ON CA), 24 O.R. (3d) 239 (C.A.), at p. 243; R. v. Ngoddy, [2017] O.J. No. 7208 (C.A.), at para. 21.

[10] In McCullough, a trial lawyer who had been ordered to pay costs sought intervenor status in the criminal appeal of his client. The court emphasised that when granting leave to intervene, the court must decide that “the proposed intervenor would be able to make a useful contribution beyond that which would be offered by the parties and without causing an injustice to the immediate parties”: McCullough, at p. 243. See also: Re: Gajewski, 2020 ONCA 4, at para. 27; Bedford v. Canada (A.G.), 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2.

[11] In criminal appeals, the primary concern is fairness to the parties: R. v. K.A.R. (1992), 1992 CanLII 4829 (NS CA), 76 C.C.C. (3d) 536 (N.S. C.A.), at p. 540, citing R. v. Finta (1990), 1990 CanLII 6824 (ON CA), 1 O.R. (3d) 183 (C.A.), at p. 186.

Analysis

[12] The BADC seeks to intervene to make submissions on how the court deals with the issue of racial profiling.

[13] The BADC is a non-profit corporation whose primary purpose is to work towards the elimination of racism in all its forms and the attainment of a fair system of justice throughout Canada. It is particularly committed to the elimination of racism within public sector organisations including hospitals, school boards, colleges and universities, government agencies, and police service and correctional institutions.

[14] The BADC submits that its expertise in anti-black discrimination and racial profiling would be of significant importance to the black community in Toronto in this case, which involves allegations of use of derogatory and repugnant racial slurs within the police service as well as the racial profiling of Mr. Barreau.

[15] As noted, however, leave in criminal appeals is rare. An intervention at the trial stage would, accordingly, be even more uncommon. As noted by counsel for Constable Rice, the hearing that the BADC wishes to intervene upon is even more narrow and only involves the question of whether a subpoena for a particular witness can properly be issued. In other words, the issue before the hearing judge does not involve the question of systemic racism but relates to whether a police witness has relevant and material evidence to provide at a criminal trial.

[16] The issue identified by the BADC is not before the hearing judge whose task is to decide whether the test for quashing Constable Rice’s subpoena has been met and whether the trial judge should be ordered to continue with pre-trial motions as requested by Mr. Barreau.

[17] Even if it was, I would decline to grant leave to intervene. As made clear in McCullough, the intervenor must offer a contribution beyond which the parties to the hearing are able to do. Whilst no one can gainsay the BADC’s expertise on anti-black discrimination and racial profiling, there is nothing that prevents Mr. Barreau from marshalling that evidence and making arguments on that issue.

[18] For these reasons, I decline leave to intervene and dismiss the application.

S.A.Q. Akhtar J.

Released: 14 December 2020

COURT FILE NO.: CR-20-10000134-00MO & CR-20-10000131-00MO

DATE: 20201214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEVIN BARREAU

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

[^1]: Following this hearing, the subpoena and procedenda issues were resolved without the need for a full hearing.

R. v. Barreau, 2020 ONSC 7755

Case Summary

Factual Background

Legal Principles

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1