COURT FILE NO.: CR-22-018
DATE: 20220627
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GEORGE BRAZIER Defendant
COUNSEL:
Indy Kandola and Susan Safar for the Crown
Anthony G. Bryant and Stephanie Marcade for Mr. Brazier
David Butt for James Glover, Jeffery Glover, Theresa Glover, Michelle McTamney and Catherine McTamney
HEARD: June 24, 2022
C. BOSWELL J.
Overview
[1] James Glover suffered from an addiction to drugs. He was an in-patient in a residential drug-addiction program at Waypoint Centre for Mental Health Care between February 11, 2020 and March 23, 2020. While at Waypoint he met and befriended Michelle McTamney, who was also enrolled there in a drug addiction program. She too was released on March 23, 2020.
[2] Almost immediately after leaving Waypoint, Mr. Glover and Ms. McTamney made their way to a nearby Beer Store where Mr. Glover bought a case of beer. Thereafter, on one or more occasions during the day, Mr. Glover purchased illicit drugs including cocaine and fentanyl, which he ingested. Ms. McTamney remained with him until about 7:30 p.m. when she left him alone at his residence in Wasaga Beach.
[3] The following morning, Mr. Glover’s parents found him in his room, dead of a drug overdose at age 31.
[4] On April 2, 2020 Mr. Brazier was arrested by officers of the Huronia detachment of the O.P.P and charged with trafficking in cocaine, heroin and fentanyl on March 23, 2020. Almost a year later he was re-arrested and charged with manslaughter in connection with James Glover’s death. He is alleged to have supplied Mr. Glover with the cocaine and fentanyl that caused his death.
[5] Mr. Brazier’s trial is scheduled to proceed before a jury commencing September 12, 2022. He applies ahead of that trial for an order that will facilitate his access to certain records held by third parties that he says are necessary for him to make full answer and defence to the charges against him.
[6] In particular, Mr. Brazier seeks access to the following records:
(i) Waypoint’s records relating to James Glover’s mental health, diagnosis and treatment of any substance abuse disorder or other mental illness, including any records of day passes or similar unsupervised activities;
(ii) Similar records from Waypoint in relation to Michelle McTamney;
(iii) The cell phone activity records of Michelle McTamney for the period February 11, 2020 to March 31, 2020 relating to number 289-716-6580; and,
(iv) The cell phone activity records of Jeffrey Glover, Theresa Glover and Catherine McTamney for the period March 24 and 25, 2020 for numbers 705-441-5756, 705-888-1770 and 289-716-7661 respectively. Jeffrey and Theresa Glover are James Glover’s parents. Catherine McTamney is Michelle McTamney’s mother.
[7] Mr. Brazier’s application is, by and large, opposed by both the Crown and by the parties whose private records are being sought.
THE GOVERNING PRINCIPLES
[8] Every person charged with committing a crime in Canada has a constitutional right to make full answer and defence to the charge. Implicit in that right is the entitlement to disclosure of all relevant, non-privileged information in the possession or control of the Crown, whether inculpatory or exculpatory. See R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.
[9] Sometimes, information helpful to the defence of a criminal charge is not in the possession or control of the Crown and instead is possessed or controlled by a third party. Access to such third party records may be of significant interest to an accused person. But where third party records are in issue, an accused person’s right to make full answer and defence often conflicts with the third party’s rights to privacy and dignity.
[10] Canadian common law provides a mechanism for assessing the requests of accused persons for production of third party records. This mechanism provides for a balancing of the rights of accused persons and the rights of third parties who may have a privacy interest in the records being sought.
[11] Our modern third party records regime was established by the Supreme Court in R. v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. The O’Connor procedure applies to requests for production of any records beyond the possession or control of the Crown.
[12] The process to be followed on an O’Connor application begins with the issuance of a subpoena duces tecum and its service on a third party record holder. The accused then brings an application in writing and serves it on the prosecuting Crown, the person who is the subject of the records, the record holder and anyone else who may have a privacy interest in the record. See R. v. McNeil, 2009 SCC 3 at para. 27 and Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2017 ONCA 722 at para. 113.
[13] The application then proceeds in two stages. This ruling relates only to the first stage of the O’Connor procedure, so I will focus for now on the principles that apply at that stage.
[14] The applicant bears a burden, at stage one, to establish that the records sought are likely relevant. In other words, that there is a “reasonable possibility” that the records contain information “logically probative to an issue at trial or the competence of a witness to testify”. See O’Connor, para. 22. To be clear, the phrase “issue at trial” includes evidence relating to the credibility or reliability of witnesses.
[15] This first stage threshold is not an onerous one. It is meant to weed out requests that are unlikely to be relevant or are otherwise speculative. It recognizes that the applicant has not seen the targeted records and therefore will not typically be in a position to demonstrate precisely how the records sought might be used at trial. As Justice Charron held in McNeil, at para. 28:
…[T]he relevance threshold should not, and indeed cannot be an onerous test to meet because accused persons cannot be required, as a condition to accessing information that may assist in making full answer and defence, “to demonstrate the specific use to which they might put information which they have not even seen.
[16] Where the applicant meets the likely relevance threshold, the court will proceed to the second stage of the inquiry. At stage two, the court will review the third party record and make a determination about whether disclosure is appropriate, having regard to the competing interests at stake.
[17] Most of the hard litigating in O’Connor applications involves the question of likely relevance. More particularly, whether the defence has gone beyond speculative assertions of relevance and has drawn a case specific line between the records sought and one or more live issues for trial.
[18] In R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 (C.A.), Justice Doherty, writing for a unanimous panel, instructed that in seeking to establish likely relevance, an accused cannot rely on speculative assertions or stereotypical assumptions. He held, at para. 75, that the mere assertion that a record is relevant to the issue of credibility is not enough. Instead:
An accused must point to some ‘case specific evidence or information’ to justify the assertion…[A]n accused must be able to point to something in the record adduced on the motion that suggests that the records contain information that is not already available to the defence or has potential impeachment value.
[19] Justice Doherty went on to note that it is not sufficient “to demonstrate no more than that the record contained a statement referable to a subject matter which would be relevant to the complainant’s credibility”. Third party records are relevant, he said, only where admissible in their own right or where they have some impeachment value. (Batte, para. 77).
THE LIVE ISSUES
[20] It is critically important on an application of this nature, to identify the live issues for trial as best as one can from the current, limited vantage point. The reason is obvious: relevance does not exist in the abstract. Justice Watt described relevance in the following terms in R. v. Wood, 2022 ONCA 87, at para. 60, as follows:
As is well known, relevance is not an inherent characteristic of any item of evidence. Rather, it exists as a relation between an item of evidence and a proposition of fact that its proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense. The threshold for relevance is not high. Evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than that fact would be without the evidence. We assess relevance in the context of the entire case and the positions of counsel. (Internal citations omitted).
[21] Mr. Brazier, as I noted, is charged with trafficking cocaine, heroin and fentanyl on March 23, 2020. He is alleged to have sold cocaine and fentanyl to James Glover on that date. The Crown’s position is that Mr. Glover ingested the drugs that Mr. Brazier sold him and those drugs caused his death. He is additionally charged with manslaughter.
[22] I am proceeding on the assumption that all of the essential elements of the offences of trafficking and of unlawful act manslaughter are live issues. The records sought are, it is suggested, particularly relevant to the essential elements of the offence of manslaughter and to the credibility and reliability of Michelle McTamney.
[23] To establish Mr. Brazier’s guilt for the offence of manslaughter, the Crown must prove, to the reasonable doubt standard, that Mr. Brazier committed an unlawful act; that the unlawful act was inherently dangerous in that it presented an objectively foreseeable risk of causing injury and was a marked departure from the standards of a reasonable person; and that the act or omission caused the death of Mr. Glover. See R. v. H.C., 2022 ONCA 409 at para. 34.
[24] During oral argument, Mr. Brazier’s counsel explained that one issue the defence will explore is whether Mr. Glover may have obtained cocaine and fentanyl on March 23, 2020 (or perhaps in the days immediately preceding March 23, 2020) from a source or sources other than Mr. Brazier. Evidence that he did so may create reasonable doubt about the source of the drugs that caused his death.
[25] Michelle McTamney is undoubtedly a central witness for the prosecution. She appears to have been the last person to see James Glover alive. Moreover, she spent almost the entire day with him on March 23, 2020. She will testify about the events of that day and any observations she made as to when Mr. Glover consumed illicit drugs and where he obtained those drugs. Her credibility and reliability are very much in issue.
THE POSITIONS OF THE PARTIES
Mr. Brazier
[26] In relation to the cell phone records sought, Mr. Brazier takes the position that there is evidence that Michelle McTamney may have assisted Mr. Brazier in sourcing out and acquiring illicit drugs on March 23, 2020. She has provided evidence that she was with him when someone named George and two of his friends picked up Mr. Glover on the afternoon of March 23, 2020. She says they all travelled to the TD Bank in Wasaga Beach where Ms. McTamney withdrew funds which she provided to Mr. Glover, who used those funds to buy drugs from George.
[27] According to Mr. Brazier, Michelle McTamney’s phone records for the period February 11, 2020 (the day James Glover entered rehab) to March 31, 2020 are relevant for a number of purposes, including: (1) to establish that she engaged in efforts to aid Mr. Glover in securing drugs; (2) to establish that she engaged in efforts to aid Mr. Glover in securing drugs on March 23, 2020; (3) to establish that she contacted individuals other than Mr. Brazier on March 23, 2020 for the purpose of sourcing out drugs; (4) to track her movements through cell tower records on March 23, 2020; and (5) to generally confirm her narrative of events and in particular the timing of events on March 23, 2020 including the time she says her mother picked her up from Mr. Glover’s residence in the evening.
[28] Mr. Brazier’s position with respect to Catherine McTamney’s phone records is that they will assist in establishing the timing of certain events should Michelle McTamney’s records not be available. In particular, the time that Catherine McTamney picked up Michelle McTamney from Mr. Glover’s residence on March 23, 2020.
[29] His position with respect to the phone records of Mr. Glover’s parents is that they will corroborate evidence about the number and timing of calls between his parents and Michelle McTamney after their son’s death was discovered.
[30] In terms of the records of Waypoint, Mr. Brazier submits that Michelle McTamney’s credibility and reliability are matters of very serious contention. He contends that Michelle McTamney’s account of events has changed over time between her first account to Mr. Glover’s parents, then to the police and to the court. Moreover, her ability to observe, recall and recount events in issue was impaired at the relevant time by her own consumption of drugs and by the feelings associated with her complicity in Mr. Glover’s death.
[31] Indeed, Mr. Brazier’s counsel characterize Michelle McTamney as a Vetrovec witness[^1] given a constellation of factors that include: her complicity in assisting Mr. Glover to obtain the drugs that killed him; her sudden departure from Mr. Glover’s home when he began to feel ill; and her failure to notify anyone of the risk to Mr. Glover. They say that her unscrupulous nature makes it all the more important that the defence have access to any records that may impact the assessment of her credibility.
[32] According to Mr. Brazier, Ms. McTamney’s admitted use of alcohol while in rehab and her abuse of drugs immediately upon release from rehab impact on her ability to recall events accurately and reliably.
The Crown
[33] During the course of oral argument, Crown counsel conceded, as did counsel to those parties whose privacy interests are engaged in the records sought, that Michelle McTamney’s cell phone records are likely relevant, largely for the reasons articulated by defence counsel.
[34] In the Crown’s submission, none of the other phone records sought meet the likely relevance threshold. There is no question that there were communications between Michelle McTamney and her mother and between Michelle McTamney and James Glover’s parents. That was to be expected in the circumstances. Without more case specific information as to the relevance of those records, the bald assertions of relevance do not meet the mark.
[35] With respect to the Waypoint records, the Crown submits that the defence has offered no case specific basis for finding that any records relating to the deceased, James Glover, are relevant. In terms of Michelle McTamney, the defence request, which covers an extensive range of documents, is a classic fishing expedition. It is based on stereotypical reasoning about the credibility and reliability of witnesses who have mental health or addiction issues. The defence has again not pointed to any case specific evidence that suggests there is likely to be relevant evidence in the Waypoint records not already available to the defence.
[36] The Crown asks that the application be dismissed, save with respect to the phone records of Michelle McTamney.
The Subjects of the Records
[37] Mr. Butt acts for all of the parties whose privacy interests are engaged by the records sought. In the course of oral argument, he conceded, as did the Crown, that Michelle McTamney’s phone records meet the likely relevance threshold.
[38] His position on the balance of the cell phone records sought aligns with the position of the Crown. The records sought will not have any evidence of the content of communications. The fact that there were communications between the individuals in issue is not disputed. Mr. Brazier has, he contends, failed to demonstrate how the number and timing of communications may offer evidence relevant to any live issue at trial or how they might undermine the credibility or reliability of Michelle McTamney’s evidence.
[39] In terms of the Waypoint records, Mr. Butt, like the Crown, takes the position that the defence has not offered an evidentiary basis to conclude that the Waypoint records – in relation to either Mr. Glover or Ms. McTamney – are likely relevant.
[40] The fact that Mr. Glover and Ms. McTamney sought treatment for drug addiction or mental illness cannot, without more, ground an inference that the witness is not credible or reliable. See O’Connor at para. 143. There is no evidence here, for instance, that Ms. McTamney has ever suffered from memory problems at all, or hallucinations, delusions or breaks in reality that might be relevant at trial.
[41] The credibility and reliability of Mr. Glover are not in issue at all at trial. There is no evidence in the record adduced by Mr. Brazier that would support the inference that there is likely original evidence in Mr. Glover’s Waypoint records that might be relevant to any live issue at trial. To the extent that Mr. Glover’s experience as a drug user is relevant, the defence is already equipped with plenty of evidence of that fact.
[42] The defence intends to challenge Ms. McTamney on inconsistencies in her evidence, on her complicity in the events that led to Mr. Glover’s death and her own use of drugs on the date in question. Her Waypoint records will offer nothing of value to those areas of challenge. The records are not needed to make full answer and defence.
[43] Save for Michelle McTamney’s phone records, Mr. Butt urges the court to dismiss the application.
DISCUSSION
[44] I begin with a brief discussion of the nature of the records delivered to the court in response to subpoenas served by Mr. Brazier’s counsel.
[45] Waypoint answered the subpoena by producing flash drives which contain all of the records they have in relation to James Glover and Michelle McTamney. Those drives were sealed and marked Exhibits A and B on the application.
[46] I understand that Mr. Brazier had no information about which particular telecom provided service to the cell phone numbers in issue. He accordingly served subpoenas on each of Bell Mobility, Rogers Wireless and Telus. Only Telus responded. Whether it is safe to infer that only Telus has possession of relevant records is an open question. In any event, Telus delivered two duplicate disks that were sealed and marked Exhibit C on the application.
[47] I will address the cell phone records first because they require relatively little analysis for reasons that will become clear in a moment.
The Cell Phone Records
[48] Telus provided four Excel spreadsheets, one each for numbers 289-716-6580, 289-716-7661, 705-441-5756 and 705-888-1770. They indicated that the subscriber to 289-716-6580 was Michelle McTamney, but they otherwise provided no records. They indicated that the subscriber to 280-716-7661 is Catherine McTamney and they provided voice call detail records for the period sought. They further indicated that the subscriber to 705-888-1770 was Theresa Glover, but they otherwise provided no records. They provided no information or details regarding 705-441-5756.
[49] In the result, my assessment of likely relevance is limited to the phone records of Catherine McTamney.
[50] I note, by the way, that Mr. Brazier has received, as part of the Crown’s Stinchcombe disclosure obligation, a report on the forensic analysis of James Glover’s cell phone. They will have, in the result, a record of the date and times of all of Mr. Glover’s communications with Michelle McTamney between February 11, 2020 and March 23, 2020. They will further have a record of all of the dates and times Mr. Glover communicated with third parties, including Mr. Brazier, on March 23, 2020 and in the several days immediately preceding that date.
[51] For the most part, I am not persuaded that the contents of Catherine McTamney’s phone records are likely relevant. I say this for reasons that include the following:
• None of her communications following the discovery of Mr. Glover’s death strike me as relevant to any live issue. The fact that she may have communicated with her daughter or with James Glover’s parents following March 23, 2020 is neither disputed nor remarkable;
• None of the content of any communications she had with her daughter, or anyone else for that matter, will be available in the records;
• The number of communications she had with her daughter on March 23, 2020 has no bearing that I can discern, in terms of any of the identified live issues in this case. I have not been told, for instance, that Michelle McTamney has given inconsistent accounts of the extent to which she was communicating with her mother on that date;
• The timing of the communications, is, with one exception, not relevant insofar as I can tell. I have not been provided with any evidence that would support an inference that Catherine McTamney’s phone records are likely to reveal the location of the cell tower to which any party she has communicated with has registered. In other words, her records are not going to reveal where Michelle Tamney may have been geographically located at the time of any communications between them. So while Michelle McTamney’s whereabouts throughout the day on March 23, 2020 may be relevant, Catherine McTamney’s records will not shed any light on those whereabouts.
[52] I am persuaded that Catherine McTamney’s phone records are likely relevant in at least one respect. They may provide some evidence as to the time that Catherine McTamney picked Michelle up from James Glover’s residence in the early evening of March 23, 2020. The time that she left him is of some significance both to the credibility of Michelle’s narrative of events and to the time when Mr. Glover was last seen alive and his condition at that time.
[53] I find, in the result, that Mr. Brazier has met the low threshold of likely relevance in relation to Catherine McTamney’s phone records and I will examine those records in accordance with the principles applicable to stage two of the O’Connor process.
The Waypoint Records
[54] In my view, the defence has not pointed to any case specific evidence that would suggest that any of Mr. Glover’s records from Waypoint are likely relevant. To meet that threshold, the defence would have to demonstrate that a record from Waypoint is admissible as relevant evidence in its own right, or that it has some impeachment value. See Batte, para. 77. Mr. Brazier has not done so.
[55] Mr. Glover is not going to testify and so his impeachment is a non-issue. I am not persuaded that there is any evidence likely to be found in Mr. Glover’s Waypoint records that will be admissible evidence in its own right, as likely relevant to any of the live issues at trial, including the credibility or reliability of the testimony of any other witness.
[56] While there may be evidence in Waypoint’s records relating to Michelle McTamney that might have some impeachment value, a conclusion that those records are likely relevant can only be speculative at this point.
[57] It is well-known and not contentious that both James Glover and Michelle McTamney suffered from both mental health and drug addiction problems. We have all had interactions with parties who are so high on drugs or alcohol that they are incapable of rational action or thought. And we have all had interactions with people who are suffering such profound mental illness that they are detached from reality and, amongst other things, would make terribly unreliable historians. And so, as a matter of human experience, we all understand that there are instances where drug abuse or mental illness may affect a person’s reliability as a witness. But not all persons who abuse drugs or alcohol or who suffer from mental illness are inherently unreliable. In fact, far from it.
[58] One stereotypical assumption that will not be sufficient, on its own, to establish likely relevance, is that a person who suffers from mental illness is less worthy of belief or is inherently unreliable. Justice L’Heureux-Dubé said the following at para. 143 of O’Connor:
…the mere fact that a witness has a medical or psychiatric record cannot be taken as indicative of the potential unreliability of his or her testimony. Any suggestion that a particular treatment, therapy, illness or disability implies unreliability must be informed by cogent evidence rather than stereotype, myth or prejudice.
[59] Precious little has been offered by Mr. Brazier, other than stereotype, to support the conclusion that Michelle McTamney’s struggles with addiction and mental health tend to undermine her credibility and reliability.
[60] To be fair, Mr. Brazier identified one occasion where Ms. McTamney used alcohol while in rehab, which is against the rules. That may be some fodder for cross-examination, but it is admitted and already known to the defence. Whether the records contain other instances of rule-breaking is pure speculation.
[61] Mr. Brazier’s counsel submitted that her account of events has changed over time, from her initial statement to the police, through her more formal videotaped statement, to her testimony at the preliminary hearing. To the extent that there are inconsistencies across those statements, the defence will have those available for impeachment purposes. But as a matter of simple chronology, nothing in the Waypoint records will provide evidence of further inconsistencies in a narrative that only begins after Ms. McTamney and Mr. Glover were released from that facility. In other words, there is no evidence, nor could there be, that Michelle McTamney discussed the events in issue with a counsellor, or anyone else, at Waypoint.
[62] I appreciate that there is some evidence that Mr. Glover and Ms. McTamney may have been out on day passes on March 21, 2020 and that Mr. Glover may have, on that date, attempted to reach out to sources he may have had to obtain drugs. I have two comments to make about that. First, the defence already has that information. Second, there is little likelihood that the Waypoint records are going to reflect who Mr. Glover contacted while out on a day pass.
[63] Mr. Brazier will want to cross-examine Ms. McTamney about the circumstances of March 23, 2020. None of the Waypoint records will assist in that regard. Her withdrawal and provision of funds to James Glover to buy drugs; her assistance in making arrangements for him to acquire drugs; her departure when Mr. Glover was feeling ill; and her failure to alert anyone about his jeopardy are all matters that she can be cross-examined on. None of those matters will be enhanced by the Waypoint records.
[64] There is nothing in the evidentiary record before the court, beyond assertions based on stereotypes, that supports the conclusion that Ms. McTamney’s Waypoint records likely contain information that would be relevant to any of the live issues before the court, or to her credibility and reliability generally. While I can understand why the defence might want an opportunity to take a look through the Waypoint records, their basis for doing so does not, in my opinion, rise above a fishing expedition that this point.
[65] The application for access to Waypoint records fails in the result.
C. Boswell J.
Released: June 27, 2022
[^1]: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 SCR 811. A Vetrovec witness is one who is so unsavoury as to require a special warning by the trial judge to the jury that it would be dangerous to rest a conviction on the evidence of such a witness without confirmatory evidence.