Her Majesty the Queen v. Joshua Ryan Gillespie

Court File No.: CR-21-5049 Date: 2021-09-22 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Joshua Ryan Gillespie, Accused

Counsel: Richard L. Pollock, for the Crown as Agent for the Director of Public Prosecutions Gregory Lafontaine and Julia Kushnir, for the Defendant

Heard: September 16 and 17, 2021

RULING ON MOTION TO COMPEL DISCLOSURE

Munroe J.:

[1] This is a drug case. The defence brings a motion to compel disclosure from an ongoing murder investigation. A summary identifying the issue is helpful.

[2] The accused was arrested for murder. A search incident to that arrest revealed a variety of illegal drugs on the person of the accused. The murder case against the accused and another individual was withdrawn weeks after the arrest. The murder investigation remains open. The drug case continues. In a Charter motion before me in this case, the drug case, the defence challenges the lawfulness of the murder arrest upon which the ensuing search was based. To support this claim, the defence seeks, in essence, the entire murder case disclosure at the time of the arrest. The police and Crown counsel object to the breadth of said disclosure request, declining to disclose large portions of the open homicide file under the claim of privileges, most notably investigative privilege. By this motion, the defence now seeks to compel that disclosure.

[3] The defendant, Joshua Ryan Gillespie, is accused in this indictment of three counts of possessing Schedule I controlled substances (cocaine, oxycodone, and fentanyl) for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and one count of simply possessing a Schedule I controlled substance (oxycodone), contrary to s. 4(1) of the Controlled Drugs and Substances Act. All said crimes allegedly took place in Windsor, Ontario, on April 14, 2019.

[4] On that date, Sunday, April 14, 2019, at or about 3:30 p.m., Mr. Gillespie was arrested in Windsor for the first degree murder of Jerome Allen. Shortly thereafter on the same day, Mohammad Al-Yousufi was arrested for the same murder, and Rosalind Nussio was arrested for accessory after the fact to murder. All three were subsequently charged with the crimes arrested in Information No. 19-901. Almost four weeks later, the information was withdrawn against all three individuals at the request of the Crown, but the police investigation of the alleged murder of Jerome Allen continues.

[5] In his Notice of Application for the Exclusion of Evidence (“motion to exclude”), Mr. Gillespie asserts, in pertinent part, that the police lacked lawful grounds to arrest him for murder on April 14, 2019, thus making the ensuing search of his person unlawful and contrary to s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”). Further, Mr. Gillespie asserts that the fruits of the unlawful search, principally the drugs, should be excluded as evidence in his trial pursuant to s. 24(2) of the Charter.

[6] In his Notice of Application re: Disclosure Application (“motion to compel”), and as modified during submissions, Mr. Gillespie seeks unredacted copies of the following murder investigation documents:

1. Grounds for Gillespie’s Arrest – Allen Homicide;
2. Notes of Detective Anthony Nosella;
3. Information to Obtain (“ITO”) – General Warrant issued April 11, 2019;
4. ITO – Production Order issued January 23, 2019;[^1] and
5. Response to said Production Order before the arrest.

[7] All of these documents have been disclosed but in redacted form. The disclosure of these unredacted documents, according to the defence, is “crucial to assessing the grounds for the Applicant’s arrest.”

[8] Crown counsel and the investigating police service object to the disclosure sought on numerous grounds. The ground ultimately pressed by the Crown, and contested by the defence, is the investigative privilege. This privilege and its application to this case are the focus of these reasons.

[9] A voir dire on the motion to compel was held over two days. Evidence was taken. The court heard from the current Officer in Charge (“OIC”) of the Jerome Allen murder investigation, Windsor Police Constable Charles Sasso. In addition, the following exhibits were admitted:

Ex. 1 Sworn Affidavit of Windsor Police Sergeant Todd Pearce with exhibits: Tab A: Anthony Nosella report: Grounds for Gillespie’s Arrest – Allen Homicide – portions redacted; Tab B: General Warrant issued April 11, 2019, Application, and Non-Disclosure Order – portions redacted; Tab C: Production Order issued January 23, 2019 for cell telephone information, Information to Obtain, and Non-Disclosure Order – portions redacted; Tab D: Notes of Anthony Nosella – portions redacted; and Tab E: Four pages of data in response to Production Order, Tab C – portions redacted.

Ex. 1A: Revised redactions to Appendix “B” of the Application for the General Warrant, Ex. 1, Tab B.

Ex. 1B: Authorization issued by Gregory A. Campbell of the Ontario Court of Justice on April 12, 2019 – portions redacted.

Ex. 2 Witness List portion of murder case discovery released before case withdrawn.

Ex. 3 Charge Summary portion and face of Information No. 19-901 of murder case discovery released before case withdrawn.

[10] Over the objection of Crown counsel, the defence was given leave to cross-examine Sgt. Todd Pearce on his affidavit, Exhibit 1. Ultimately, Sgt. Pearce was not called as a witness by the Crown and the defence declined the opportunity to cross-examine him.

FACTUAL OVERVIEW

Homicide Investigation

[11] A police charge summary of the murder case was included as an exhibit in the motion to compel.[^2] In addition, the “Grounds for Gillespie’s Arrest – Allen Homicide” (“Grounds”) authored by Det. Nosella, then OIC of the investigation, is Ex. 1, Tab A. Together, they provide, the following brief overview of the homicide investigation.

[12] A missing person’s report was made to the police on October 27, 2018 for Jerome Allen. He was last seen or heard from in the early hours of October 20, 2018. That date was his last phone call, contact with family or friends, and bank activity. He remains missing.

[13] A homicide investigation was opened on November 26, 2018, following a report from Mr. Allen’s sister that her missing brother had been murdered.

[14] Mr. Allen lived in the upper unit at 3417 Cross Street, Windsor. The lower unit was occupied by the owner of the building, Mohammad Al-Yousufi, and his roommate, the accused, Joshua Gillespie. Those three were seen at adult entertainment establishments in Windsor on the night of October 19, 2018 and the early morning hours of October 20, 2018.

[15] Included in the information received by the police was information from a person identified as Brittany Scott. According to her, she overheard Mr. Gillespie tell another that Mr. Allen was dead, and that he, Mr. Gillespie, had shot Mr. Allen in the head. Ms. Scott refused to provide a formal statement and now is dead.

[16] The police extracted photos and videos from the cell phone of Mr. Allen. Some of the videos from the summer of 2018 show Messrs. Allen, Gillespie, and Al-Yousufi in possession of drugs and handguns.

[17] Mr. Gillespie has 32 convictions including assault-type crimes and firearms related crimes. At the time of the murder arrest, Mr. Gillespie had outstanding charges including firearms crimes and possession of controlled substances for the purpose of trafficking.

Drug Case

[18] Mr. Gillespie was arrested for the first degree murder of Jerome Allen at about 3:30 p.m. on Sunday, April 14, 2019, by a Windsor Police constable. A search incident to that arrest revealed the following controlled substances on the person of Mr. Gillespie:

• 20.7 grams of fentanyl powder;
• 23 grams of crack cocaine;
• 75 oxycodone pills (5 mg);
• 7 oxycodone pills (40 mg);
• $2,100; and
• Functioning digital scale.

PRIVILEGES CLAIMED[^3]

[19] The Crown filed the affidavit of Sgt. Todd Pearce in support of its privilege claims. The Crown also called Cst. Charles Sasso.

[20] In his affidavit, Sgt. Pearce averred that he is the supervisor of the six detectives assigned to the Jerome Allen investigation. The investigation is open and active. At paragraph 5, Sgt. Pearce asserted privilege: “On behalf of the Windsor Police Service I assert investigative privilege in connection to the information redacted.” Further, according to Sgt. Pearce, any disclosure of the redacted material would compromise the ongoing murder investigation.

[21] Constable Sasso gave viva voce evidence. He is the present OIC of the homicide investigation taking over from Anthony Nosella. During his evidence, Cst. Sasso went through all the redactions contained in the exhibits filed, identifying the privilege asserted for each redaction. He made the redactions in consultation with Sgt. Nosella. The vast majority of asserted privileges were for investigative privilege. The words used by Cst. Sasso were not always exact but the meaning was the same: the disclosure of this information would compromise the integrity of the investigation and put people at risk both physically and for their continued involvement with the case.

GOVERNING PRINCIPLES

Disclosure

[22] In the 1991 landmark decision of R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, the Supreme Court of Canada held that the Crown has a duty to disclose all relevant information to the defence and that s. 7 of the Charter constitutionally mandates said duty. The “overriding concern” is that the failure to disclose impedes the ability of the defence to make full answer and defence: Stinchcombe, at p. 336.

[23] This duty to disclose encompasses all relevant information including both inculpatory and exculpatory evidence: Stinchcombe, at p. 343. Relevance is to be determined generously. Information should not be withheld if “there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence”: Stinchcombe, at p. 340. In a subsequent decision, R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, at p. 467, the Supreme Court provided further explanation:

One measure of the relevance of information in the Crown’s hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed: Stinchcombe, supra, at p. 345. [The determination is whether] production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.

[24] “Clearly the threshold requirement for disclosure is set quite low.”: R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 21.

[25] Moreover, and to be clear, the right to make full answer and defence includes the disclosure of information relating to the admissibility of evidence: R. v. Hunter, [1987] O.R. (2d) 364 (C.A.); Dersch v. Canada (Attorney General), 1990 CanLII 3820 (SCC), [1990] 2 S.C.R. 1505, at pp. 1515-1516.

[26] This duty to disclose, however, is not absolute. It is subject to the discretion of Crown counsel regarding both the timing of disclosure as well as the withholding of information: Stinchcombe, at p. 339. With regard to the withholding of information, the Supreme Court in Stinchcombe, at p. 340, recognized privilege stating:

[T]he absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure.

[27] “The right to disclosure was not to trump privilege”: R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at para. 24.

[28] Crown counsel’s discretion to withhold disclosure is reviewable by the trial judge. On review, the Crown must justify its decision to withhold by bringing its decision within the narrow exceptions to the duty to disclose: Stinchcombe, at p. 340.

Search Incident to Arrest

[29] The requirements of a lawful search incident to an arrest were recently and clearly set forth by Fairburn J.A. in the Court of Appeal for Ontario decision of R. v. Canary, 2018 ONCA 304, at paras. 21 and 23:

Where a peace officer believes on reasonable grounds that a person has committed an indictable offence, the officer may make a warrantless arrest: s. 495(1)(a) of the Criminal Code. There is both a subjective and objective component to the reasonable grounds inquiry. To fulfill the subjective requirement, the officer must hold an honest belief that the person committed an offence. The officer "must subjectively believe that there are reasonable grounds to make the arrest": R. v. Saciragic, 2017 ONCA 91, leave to appeal refused, [2017] S.C.C.A. No. 106, at para. 16. To fulfill the objective requirement, the officer's belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 38; Saciragic, at para. 16. The objective inquiry asks whether "a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest": Storrey, at pp. 250-51.

The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, "credibly-based probability" replaces suspicion: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166; Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25; R. v Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 33.

Investigative Privilege

[30] The public interest privilege is a recognized common law privilege: R. v. Richards, 1997 CanLII 3364 (ON CA), [1997] 34 O.R. (3d) 244 (C.A.), at para. 7. This common law privilege encompasses ongoing criminal investigations: Canada (Attorney General) v. O’Neill, [2006] O.J. No. 106 (Sup. Ct.), at para. 18; R. v. Goulbourne, [2007] O.J. No. 3704 (Sup. Ct.), at para. 9.[^4]

[31] Unlike the informer privilege, the investigative privilege is not a class privilege; rather it is qualified and must be analyzed on a case by case basis: R. v. Barnes, 2012 ONSC 7185, at para. 18 (Strathy J.).

[32] The leading case is Richards, wherein, at para. 11, the Court of Appeal for Ontario provided the following test:

Where the claim is made, the judge must first decide whether the information sought is relevant to an issue in the proceedings. Second, if relevant, [the information sought] will not be disclosed if the public interest in effective police investigation and the protection of those involved in, or who assist in such investigation, outweigh the legitimate interests of the accused in disclosure of the [information].

[33] In the context of an investigative techniques case, Justice Strathy, in Barnes, at para. 23, approached the issue with the following series of questions:

1. Is the evidence relevant?
2. If so, could the information sought reasonably affect the outcome of the trial?
3. If so, would the claim for privilege have the effect of preventing the accused from making full answer and defence?
4. If so, the trial judge must engage in a balancing process, “weighing the interests of the accused … and the interests of society …”

[34] This approach was recently followed by Dambrot J. in R. v. Schlatter, 2020 ONSC 402, at paras. 30-31.

[35] The party claiming privilege carries the burden: O’Neill, at para. 18.

PRINCIPLES APPLIED

[36] In the application of the Richards test – relevance and balancing – I use the four-prong approach advanced by Justice Strathy in Barnes.

1. Relevance

[37] Is the information sought relevant?

[38] Given the nature of the redacted homicide investigative documents, it is fair to infer that the redacted portions contain information gathered by the police regarding the alleged murder and the asserted role of Mr. Gillespie. The Charter issue before the court is the lawfulness of Mr. Gillespie’s arrest for murder. The objective part of the test to determine said lawfulness includes consideration of all circumstances known by the police at the time of the arrest. In the disclosure context, the bar is low for establishing relevance; the information must be of some usefulness to the defence. With this low threshold and the Charter issue before the court, it is clear that the redacted information is relevant.

2. Affect the Outcome

[39] Could the information sought reasonably affect the outcome of the Charter hearing on the lawfulness of Mr. Gillespie’s murder arrest?

[40] The answer to this question is dependent upon the context – the stage of the proceedings, the information sought, and the intended use of the information sought. The proceeding here is a Charter voir dire on the issue of whether the grounds to arrest Mr. Gillespie were objectively reasonable taking into consideration all the circumstances known to the police at the time. The balance of the information possessed by the police at the time of the arrest is the information sought.

[41] Both in its written factum and orally before me, the defence makes clear that it wants to use the redacted information to challenge the objective reasonableness of the grounds to arrest. The defence wants to use this withheld information in its cross-examination of the police witnesses asserting the lawfulness of the arrest. In fairness, I accept that further detail is at best difficult without the information sought.

[42] However, and perhaps notably, the defence does not assert any specific use of the information sought. There is no claim that the information will assist in establishing facts that obviously could impact the outcome of the Charter motion. Moreover, and this cannot be overstated, the test for a lawful arrest is a modest one: reasonable or credibly-based probability. Here, the defence assertions are general and conclusory; indeed, speculative. In short, Mr. Gillespie is fishing.

[43] Crown counsel suggests parallels with the common review of redacted search warrant ITO’s during which the Crown does not rely on the redacted portions to satisfy the grounds to search.

[44] Also in support, the Crown points to Sgt. Pearce’s affidavit which repeatedly states, “The information redacted, if disclosed would only augment the grounds for Mr. Gillespie’s arrest.” Despite being given leave to cross-examine Sgt. Pearce on his affidavit, the defence declined to do so. Thus, this affidavit evidence is before me unchallenged. The defence does object to the use of this averment primarily on the basis that it is an opinion. I reject this position especially in the context of this voir dire, a Charter motion: R. v. Prosser, 2016 ONCA 467, at para. 18, leave to appeal refused, [2016] S.C.C.A. No. 327. That said, I do not give great weight to Sgt. Pearce’s opinion; I recognize that the value assessment of information by the police and by defence counsel can be quite different.

[45] On the record before me in this context, it is difficult to conclude that the disclosure of the information sought could reasonably affect the outcome of the Charter hearing.[^5] Similar to the preliminary hearing context of Richards, where a discharge after a preliminary hearing was unlikely even if armed with the knowledge of the location of the observation post, I reach the same conclusion about the lack of impact on the outcome with the disclosure sought: possible but unlikely. It is not reasonable to conclude that the requested disclosure would impact the hearing.

3. Full Answer and Defence

[46] Would upholding the claim for privilege have the affect of preventing the accused from making full answer and defence?

[47] The defence seeks the information for use in cross-examination on the issue of the objective reasonableness of the grounds for arrest. Because the possession of information can enhance the effectiveness of cross-examination, it follows that a lack of information can detract from effective cross-examination. But in an assessment of the impact of a lack of information on the effectiveness of a particular cross-examination, context is essential. Here, the context is a Charter hearing with a reasonable probability standard. Certainly the defence can cross-examine the anticipated police witnesses on the issue of objective reasonableness. In my view, the impact here is marginal at best. I cannot, and do not, conclude that the withholding of investigative information in this case prevents the accused from making full answer and defence.

4. Balancing

[48] Do the interests of society in protecting ongoing criminal investigations and the safety of those connected with the investigation outweigh the interests of the accused?

[49] As reviewed above, in this context, the withholding of investigative information from the accused does impact his interests but not significantly. This is not an “innocence at stake”-type situation. Nor, even as presented by the defence, will the information sought command a significant role in the assessment of the lawfulness of Mr. Gillespie’s arrest. The motion before me is in stark contrast to the disclosure motion presented to Croll J. in Goulbourne. Justice Croll there did disclose portions of an ongoing homicide investigation in the context of an identification case where the defence pointed to another as the culprit: Goulbourne, at para. 9. Clearly, as reviewed above, this is not such a case.

[50] In contrast, I consider the interests of society here to be significant. This is an unsolved murder case involving persons with at least past connections to drugs and guns.

[51] The public interest in maintaining a confidential, ongoing, and serious murder investigation clearly outweighs the very marginal interests of the accused.

[52] In short, Mr. Gillespie’s fishing in protected waters cannot be sustained. The Crown has met its burden.

CONCLUSION

[53] For the foregoing reasons, Mr. Gillespie’s motion to compel is dismissed.

Original signed by Justice Kirk W. Munroe

Kirk W. Munroe Justice

Released: Orally and in writing - September 22, 2021

Court File No.: CR-21-5049 Ontario Superior Court of Justice

Her Majesty the Queen – and – Joshua Ryan Gillespie, Accused

RULING ON MOTION TO COMPEL DISCLOSURE

Munroe J.

Released: Orally and in writing - September 22, 2021

[^1]: Unstated, but presumably added to this list, is the Authorization issued by Justice Campbell on April 12, 2019. Because the ITO for this authorization, as advised by Crown counsel during the voir dire, is virtually identical to the ITO of the General Warrant sought, its production appears to be repetitive. [^2]: Exhibit 3. [^3]: In addition to investigative privilege, other privileges were asserted specifically informer privilege and police investigative techniques. Because these were not pressed by the defence, this ruling is restricted to the investigative privilege. In addition, other information was not disclosed as clearly irrelevant by not relating to this investigation and by being post-arrest. [^4]: In addition, a number of statutes provide authority for the denial of access to certain information, including disclosure that would “compromise the nature and extent of an ongoing investigation”: see e.g. s. 487.3(2)(a)(ii), Criminal Code of Canada. [^5]: I have not overlooked the expansive view of the privilege as displayed in the evidence of Cst. Sasso. Perhaps its height was reached when Cst. Sasso asserted privilege over the court heading on the face of a judicial order only to be met by “Ontario Court of Justice” from the mouth of Crown counsel. In other cases, in other contexts, the breadth of police invocation may prove to be important. But as reviewed, in the context before me, such a position does not impact my conclusions.