SUPERIOR COURT OF JUSTICE

(Toronto)

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

and

KEVIN BARREAU Respondent

and

POLICE CONSTABLE JULIE RICE Applicant

and

TORONTO POLICE SERVICE Applicant

ENDORSEMENT ON APPLICATION FOR CERTIORARI AND TO QUASH SUBPOENA

Heard: July 23, 2021 by videoconference

Mr. D. Butt for the applicant Cst. Rice Mr. N. Schachter for the applicant Toronto Police Service Mr. Matthew Shumka for the respondent Crown Mr. Chris Rudnicki for respondent Mr. Barreau

1. The applicants, PC Rice and the Toronto Police Service (“TPS”), bring an application in the nature of certiorari to quash the ruling of Justice Silverstein of the Ontario Court of Justice (“OCJ”) to issue a subpoena to PC Rice to testify on a Charter application in the trial of the respondent Mr. Barreau, and holding that a draft statement of claim and information provided to Mr. Barreau’s defence team by PC Zarabi-Majd are not subject to settlement privilege, were not unlawfully disclosed to the defence team by PC Zarabi-Majd, and are not subject to the third-party records provisions of the Criminal Code.

2. I accept that the applicants as third parties to Mr. Barreau’s trial have the right to seek relief in this court by way of certiorari on interlocutory rulings. I further accept that that the scope of certiorari available to third parties to a trial is broader than is available to a defendant or the Crown. The scope of review by way of certiorari for third parties includes not only jurisdictional error, but also error of law on the face of the record: R. v. Awashish, 2018 SCC 45 at paras. 12-20.

3. Although certiorari is available to third parties in relation to interlocutory rulings, certiorari is a discretionary remedy. I am alive to the concerns raised by counsel for both Mr. Barreau and the Crown about these proceedings delaying Mr. Barreau’s trial. Trial dates in June 2021 have already been lost as a result of this application stopping proceedings in the trial until it could be heard and decided. These interlocutory review proceedings risk interfering with Mr. Barreau’s right to a trial within a reasonable time. Further, the applicants have had a full opportunity to lead evidence and make submissions on these issues before the trial judge in a multi-day hearing. This is not a case where the applicants as third parties to Mr. Barreau’s trial were not permitted to participate in the hearing on the issues in front of the trial judge. These are factors that in my view would have to be weighed as part of a consideration of whether to grant the discretionary remedy of certiorari: see, for example, R. v. Boyle, 2019 ONSC 3641 at paras. 32-63; Strickland v. Canada (Attorney General), 2015 SCC 37 at paras. 37-39.

4. However, while there are concerns which may warrant declining to exercise my discretion to grant certiorari, I do not decide this application on the basis of declining to exercise my discretion (with the exception of the Lac Minerals argument, which is raised for the first time before me and was not argued before Justice Silverstein). I do not decide on the basis of declining to exercise my discretion because it is not necessary for me to do so. I am of the view that the applicants have not shown that Justice Silverstein committed either jurisdictional error or error of law on the face of the record. In particular, I find no error in his conclusions that the draft statement of claim and information provided by PC Zarabi-Majd were not protected by settlement privilege, and that their disclosure by PC Zarabi-Majd was not unlawful; that the third-party records provisions in the Criminal Code are not applicable to the draft statement of claim and related information; that Justice Dunphy’s sealing order did not prevent the use of the materials to allow the trial judge to decide these issues; and, that the test for the issuance of a subpoena to PC Rice was satisfied. I am also in substantial agreement with Justice Silverstein’s reasons for reaching these conclusions.

5. Because I am in in substantial agreement with Justice Silverstein’s reasons, and given the need to resolve this matter quickly, as the trial is scheduled to continue on August 9, 2021, I dispose of this matter by way of an endorsement.

6. I accept for purposes of this application that the third-party records production regime in the Criminal Code applies to some situations where records are already in the hands of the defence, when those records came into the hands of the defence unlawfully (i.e., by unlawfulness on the part of another, or by unlawfulness on the part of a defendant). Although this issue was only addressed in a limited way in the Supreme Court decision of R. v. Shearing, 2002 SCC 58, there is persuasive trial level authority that some forms of unlawful disclosure of records will have the effect that the third party records provisions apply even if records are already in the possession of the defence: see, for example, R. v. Gray (R. v. B.G.), 2015 ONSC 3284; R. v. Balondo, 2021 ONSC 4542 at paras. 72-79; R. v. H.F., 2017 ONSC 1897 (but see R. v. N.S., 2017 ONCJ 128). I would add that the trial level decisions suggest that whether disclosure or possession of records is unlawful such that the third-party records provisions apply even where the defence already has possession of records is a very fact-specific analysis.

7. Justice Silverstein accepted the proposition that some types of unlawfulness will have the effect that the third-party records provisions apply even where the records are in the hands of the defence (at paras. 38 and 39, and 20-25 of his Ruling); however, he found that there was no unlawfulness in the disclosure by PC Zarabi-Majd of the draft statement of claim and related information. It is not necessary for purposes of this application to define the scope of types of unlawfulness of disclosure that will lead to the third-party records regime applying even when records are already in the possession of the defence. I agree with Justice Silverstein’s conclusion that there was no unlawfulness in the disclosure of the records at issue to the defence, and thus, the third-party records provisions do not apply.

8. The bulk of the applicants’ submissions on unlawfulness turn on settlement privilege, the non-disclosure terms of the August 2019 mediation agreement (which PC Zarabi-Majd was a party to), and the non-disclosure terms of PC Rice’s settlement with TPS (which PC Zarabi-Majd was not a party to). I will address those issues first, and then address the remaining arguments of the applicants in relation to unlawfulness.

9. The applicants argue that the draft statement of claim that PC Zarabi-Majd gave to counsel for Mr. Barreau is subject to settlement privilege. They argue that if this is so, it has two impacts. First, the privilege would have the effect that the draft statement of claim would not be admissible to support the test of whether a subpoena should issue to PC Rice (and it was clear that Justice Silverstein had concerns about the credibility of PC Zarabi-Majd absent her evidence being corroborated). Second, if settlement privilege applies, then it was unlawful for PC Zarabi-Majd to disclose the draft statement of claim to Mr. Barreau’s defence counsel, and the Criminal Code third-party records provisions apply to it (and thus would make the statement of claim unavailable to support the issuing of a subpoena to PC Rice unless the third party-records provisions were first followed, and it was found the production test was met).

10. I find that Justice Silverstein did not make any error of law on the face of the record in finding that settlement privilege does not apply to the draft statement of claim and information that PC Zarabi-Majd provided to the defence team (at paras. 20-25 of his Ruling). The parties agree that Justice Silverstein correctly stated the test for settlement privilege at para. 21 of his reasons. I agree with Justice Silverstein’s conclusion that the draft statement of claim is not covered by settlement privilege, because it was not made with the intention that it would not be disclosed in legal proceedings in the event that the negotiations failed (i.e., that the privilege claim in this case fails on the second branch of the test). A simple hypothetical makes this clear. Had PC Rice not ultimately settled her claim with the TPS, would she have been prevented from filing a statement of claim because the draft statement of claim was provided to the TPS by counsel as part of the settlement negotiations? The answer is clearly, no. If the answer were otherwise, a party who disclosed the substance of their claim (or their defence) as part of settlement negotiations would be barred from relying on the substance of their claim (or defence) in the event settlement negotiations failed. I note as well, as did Justice Silverstein, that the copy of the draft statement of claim that PC Zarabi-Majd provided to defence counsel (dated April 10, 2019) is not the same as the draft sent to the TPS by counsel as part of the settlement negotiations (which was dated April 12, 2019). In addition, the record is clear that PC Rice had provided information about her allegations to PC Zarabi-Majd prior to their joint preparation of the draft statement of claim.

11. The applicants argue that Justice Silverstein erred in finding that settlement privilege did not apply, because (they claim) Justice Silverstein failed to consider: (i) that since the TPS is a unionized workplace, the Superior Court would not have had jurisdiction to adjudicate a civil suit (based on the Supreme Court decisions in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929); and, (ii) that the scope of Mr. Levitt’s retainer was expressly limited to seeking to negotiate a settlement. These arguments are advanced on both a legal basis and a factual basis, as I understand it.

12. In terms of a legal basis, although it is true that the constables would have faced an uphill battle in proceeding with a civil lawsuit because of Weber and the fact that they worked in a unionized environment, Weber does not prohibit the filing of a statement of claim. Very regularly, individuals who work in unionized workplaces file statements of claim in the Superior Court seeking relief for matters with some link to their workplace. Sometimes they prevail in the face of a motion to strike their claim on jurisdictional grounds based on Weber, sometimes they don’t: see, for example: Shearer v. Keenan, 2017 ONSC 7171; Rivers v. Waterloo (Regional Municipality) Police Services Board, 2018 ONSC 4307, affirmed, 2019 ONCA 267; De Montigny v. Roy, 2018 ONSC 858, affirmed 2018 ONCA 884. Similarly, the fact that Mr. Levitt’s retainer was limited to seeking settlement would not have prevented the constables from filing a statement of claim on their own, or with other counsel, if no settlement was reached.

13. To the extent that these arguments are put forward on a factual basis (i.e., the submission that in light of Weber and the limited scope retainer, one should infer that the intent when the draft statement of claim was prepared was never to file a statement of claim, and thus the second branch of settlement privilege is satisfied), this is a factual issue where Justice Silverstein made a reasonable finding of fact that the statement of claim was not drafted with the intention that it would never be filed in court in the event that negotiations failed (at paras. 23-25, and see also summary of pertinent evidence at paras. 9-15 of his Ruling). The arguments that the applicants advance now were made before Justice Silverstein. Justice Silverstein was not required to expressly advert to them in his reasons. The applicants may not agree with Justice Silverstein’s finding of fact about the intent when the draft statement of claim was prepared, but I find that it does not disclose error or law on the face of the record.

14. The applicants submit that the non-disclosure terms of the August 2019 mediation agreement, which PC Zarabi-Majd was a party to, made her disclosure of the draft statement of claim and information about PC Rice’s allegations to the defence team unlawful. Justice Silverstein’s ruling on this issue is subsumed into his ruling on settlement privilege (this is not surprising, as a review of the non-disclosure terms of the mediation agreement shows that they were designed to protect settlement privilege). Justice Silverstein’s review of the evidence shows he was clearly alive to the fact that PC Zarabi-Majd was a party to the mediation agreement, and the scope of the non-disclosure terms of the mediation agreement (see para. 14 of his reasons). I find that Justice Silverstein made no error of law on the face of the record in concluding that the non-disclosure terms of the mediation agreement did not prevent Ms Zarabi-Majd from disclosing information about the substance of PC Rice’s underlying claims, or the draft statement of claim.

15. It is correct that PC Zarabi-Majd was a party to and bound by the terms of the mediation agreement’s non-disclosure terms. Those terms prevent disclosure of information of one party disclosed by the mediator to another party for purposes of the mediation; statements and documents created for the purpose of the mediation and produced in the mediation (which in context is clearly to be read conjunctively); and positions, admissions, or settlement proposals, recommendations, or acceptances, etc., made during the mediation (see Mediation Agreement, paras. 4.1-4.4). But the non-disclosure terms of the mediation agreement do not reach back and prevent disclosure of information that PC Rice told to PC Zarabi-Majd long before the mediation agreement was entered into, or prevent disclosure of the draft statement of claim, which was prepared long before the mediation agreement was entered into. If it were otherwise, then had the mediation failed to achieve a settlement for PC Rice, the applicants’ position would dictate that the non-disclosure terms of the mediation agreement would also have the effect that PC Rice would not have been able to file a claim or discuss her underlying claims. The non-disclosure terms of the mediation agreement prohibit disclosure of what was discussed at the mediation, or prepared (solely) for the purpose of the mediation. They do not prohibit disclosure of the pre-existing, underlying substantive facts.

16. The applicants submit that the non-disclosure terms in PC Rice’s settlement with the TPS (which PC Zarabi-Majd is not a party to) render PC Zarabi-Majd’s disclosure of information about the substance of PC Rice’s claim (which PC Rice told PC Zarabi-Majd long before the settlement), and the draft statement of claim, unlawful. Justice Silverstein’s ruling on this issue is subsumed into his ruling on settlement privilege. His review of the evidence shows he was clearly alive to the terms of the settlement agreement between PC Rice and the TPS, including the non-disclosure terms, and to the fact that PC Zarabi-Majd was not a party to that settlement agreement (see para. 15 of his reasons). I find no error of law in Justice Silverstein’s rejection of this argument.

17. I accept that the non-disclosure terms in PC Rice’s settlement agreement with the TPS are very broad, and would encompass the substance of PC Rice’s underlying claims. However, that agreement binds PC Rice; it does not bind PC Zarabi-Majd. Put simply, PC Zarabi-Majd is not a party to PC Rice’s settlement with the TPS. Thus, PC Zarabi-Majd is not bound by the non-disclosure terms of that agreement. Counsel for PC Rice made the submission before me, essentially on a policy basis, that it would undermine settlements of lawsuits if someone not a party to the settlement could disclose information told to them by a party to a settlement who had signed a non-disclosure agreement as part of the settlement. Whatever the merits of this policy argument, I am not persuaded that our law binds a non-party to a settlement agreement with non-disclosure terms, where information was provided to the non-party prior to the settlement being entered into. I asked counsel for PC Rice during submissions if he was aware of any authority for the proposition that a non-party to a settlement agreement who, prior to the settlement being entered into, was told something that relates to the the underlying facts of the settled claim by a party to the settlement is be bound by a non-disclosure term in the settlement agreement. Counsel was advised he was unaware of any authority for this proposition.

18. Finally, I note that although PC Rice is bound by the non-disclosure agreement in her settlement with the TPS, the non-disclosure provisions of that agreement contain an exception for “such other disclosure as is required by law” (Settlement Agreement, Full and Final Release and Indemnity, p. 7). If PC Rice is compelled by subpoena to testify in Mr. Barreau’s trial, her testimony would fall within the scope of that exception, and she would not be in breach of the non-disclosure terms. No party to this application contended otherwise.

19. The applicants also argue that disclosure to Mr. Barreau’s defence team of the draft statement of claim and related information was unlawful on the part PC Zarabi-Majd based on an assertion that PC Rice has a Charter right to privacy to control information about herself being disclosed. This argument was not made in these terms before Justice Silverstein, but a similar argument was made based on “the interests of justice”. I reject this argument and find no error on the part of Justice Silverstein on this account. The applicants submit that PC Rice had a right to choose whether and how to disclose her personal information, and that PC Zarabi-Majd removed that choice from her by disclosing information and the draft statement of claim to Mr. Barreau’s counsel. I do not accept this argument. PC Rice had a choice; she chose to disclose information to PC Zarabi-Majd. In the context where I have found no error in Justice Silverstein’s conclusions that none of the privileges asserted apply (settlement privilege, the mediation non-disclosure agreement, etc.), I do not find that there is a freestanding Charter right to control information disclosed to a former friend.

20. The applicants also argued that Justice Dunphy’s sealing order of September 20, 2020 barred the filing of the affidavits of PC Zarabi-Majd in the Ontario Court of Justice on the retrial before Justice Silverstein, following the mistrial before Justice Ray. I find no error of law on the face of the record in Justice Silverstein’s conclusion that Justice Dunphy’s sealing order did not bar the filing of PC Zarabi-Majd’s affidavits in the OCJ on the retrial (see paras. 29-33 of his Ruling). I accept the submission of both the respondent Crown and the respondent Mr. Barreau that the terms of Justice Dunphy’s order are clear that the issues in relation to privilege and whether the third-party records regime applied to the information and documents at issue were to be determined by the trial judge on the retrial. Justice Dunphy’s order in no way limited the material that could be filed before the OCJ trial judge on the retrial. It simply provided that a sealing order would apply to the material pending adjudication of the privilege and related issues. Thus, I reject the applicants’ submission based on Justice Dunphy’s interim sealing order.

21. Cst. Rice and the TPS raise a new argument on this application not made before Justice Silverstein. They submit that it was unlawful for PC Zarabi-Majd to disclose the draft statement of claim and related information to Mr. Barreau’s counsel based on the reasoning in the Supreme Court decision in Lac Minerals v. International Corona, 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574 (and argue that if the disclosure to Mr. Barreau’s defence was unlawful based on Lac Minerals, then the third-party records procedure should apply). They argue that any information that PC Rice provided to PC Zarabi-Majd about her allegations about TPS officers (at any time), and any documentation, was provided in confidence. The applicants submit that Justice Silverstein erred in allowing information disclosed by PC Zarabi-Majd in breach of confidence to be relied on to support the issuing of a subpoena for PC Rice.

22. As I outline below, I do not find that the principles from Lac Minerals are applicable to the context of this application. However, even if I had found them to be applicable, I would decline to grant certiorari on the basis of this argument. As I have noted, certiorari is a discretionary remedy. Even if I found that there were error of law on the face of the record in not applying the principles from Lac Minerals in this case, I would decline to grant relief on the basis of an argument not raised before the trial judge. As I have noted, these proceedings have delayed the trial in this matter, and put at risk Mr. Barreau’s right to trial within a reasonable time. The applicants were given a full opportunity to put forward evidence and submissions on these issues before the trial judge. I decline to exercise my discretion to grant relief based on arguments made for the first time on this review application.

23. Further, and relatedly, I do not accept that if the principles from Lac Minerals did apply to the circumstances here, failing to apply them would constitute error of law on the face of the record when this legal argument was not raised before Justice Silverstein.

24. Finally, even were I to consider the submission based on Lac Minerals on the merits, I agree with the respondent Mr. Barreau that the principles in Lac Minerals have no application here. The principles in Lac Minerals relate to a fiduciary duty of confidentiality in the context of commercial dealings. They have no application to a friendship relationship. Our law has not gone so far as to regulate the disclosure of information shared between friends or former friends on the basis of fiduciary duty.

25. In light of my conclusion that settlement privilege does not apply to the draft statement of claim and information provided by PC Zarabi-Majd, it is not necessary for me to consider whether Justice Silverstein committed jurisdictional error or error of law on the face of the record in the portion of his reasons where he considered in the alternative whether the privilege, if it applied, should be set aside in the interests of justice. This should not be taken as either agreement or disagreement with his analysis. I simply do not need to consider the issue.

26. In light of my conclusion that the draft statement of claim and information provided by PC Zarabi-Majd were not unlawfully disclosed to the defence, and thus the defence’s possession is lawful, and that the third-party records production regime does not apply, it is not necessary for me to consider whether Justice Silverstein committed jurisdictional error or error of law on the face of the portion of his reasons applying the production analysis in the alternative. This should not be taken as either agreement or disagreement with his analysis. I simply do not need to consider the issue.

27. In light of my conclusion that there was no legal impediment to the defence relying on the draft statement of claim to corroborate what they were told by PC Zarabi-Majd, and what she testified to before Justice Silverstein, I see no error in Justice Silverstein’s conclusion that PC Rice had material evidence to give in relation to Mr. Barreau’s Charter application, and that the test for a subpoena to issue to PC Rice was satisfied.

28. In summary, I find as follows. I am not satisfied that Justice Silverstein committed jurisdictional error or error of law on the face of the record. The information provided by PC Zarabji-Majd to Mr. Barreau’s defence counsel, including the draft statement of claim, is not subject to settlement privilege, and her disclosure was not otherwise unlawful. The third-party records production regime in the Criminal Code does not apply to the information provided by PC Zarabi-Majd to Mr. Barreau’s defence counsel, including the draft statement of claim.

29. I order as follows:

(i) The application for certiorari and to quash the subpoena is dismissed;

(ii) The sealing orders on the files of the Superior Court of Justice and the Ontario Court of Justice, made by Justice Dunphy, dated December 4, 2020, and Justice Akhtar, dated June 11, 2021 are set aside, and the court files of the Superior Court of Justice and the Ontario Court of Justice relating to the claim of privilege and the subpoena for PC Rice shall be unsealed. I suspend the setting aside of the sealing orders until August 10, 2021, in order for the applicants to consider their appeal rights pursuant to s. 784 of the Criminal Code, and if they pursue an appeal, to seek interim relief pending appeal in the Court of Appeal;

(iii) The interim order that I made at the outset of the hearing on July 23, 2021 that the certiorari application be heard in camera is set aside. I suspend the setting aside of the in camera hearing order until August 10, 2021, in order for the applicants to consider their appeal rights pursuant to s. 784 of the Criminal Code, and if they pursue an appeal, to seek interim relief pending appeal in the Court of Appeal.

30. For the sake of clarity, I note that I make no order regarding Justice Silverstein’s order that the hearing before him regarding these issues proceed in camera (Transcript of May 11, 2021, pp. 16-17). As I read the record, although Justice Silverstein’s in camera order was based on the same concerns that motivated Justice Dunphy’s interim sealing order (that is, to protect the information at issue pending the adjudication of the privilege and privacy claim), Justice Dunphy’s order did not mandate in camera proceedings. Thus, my setting aside of Justice Dunphy’s order does not set aside the in camera order made by Justice Silverstein on May 11, 2021. At the hearing before me, no party requested that I lift the in camera order made by Justice Silverstein. I leave it to Justice Silverstein to consider, in light of these reasons and my lifting of the sealing orders, whether as the trial judge he finds it appropriate to vary or set aside the in camera order regarding the proceedings before him.

31. I direct counsel to consult to prepare a draft order agreed to by all parties reflecting the disposition set out above. The draft order may be submitted to the Criminal Intake Office by email, to my attention, for signature. If counsel are unable to agree on the terms, they may schedule a teleconference for me to settle the terms of the order.

32. I thank counsel for their focused and helpful written and oral submissions on the application.

Justice J. Copeland

July 27, 2021