COURT FILE NO.: CV-20-73631

DATE: 2022/02/04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

AMEIL JOSEPH Plaintiff

• and -

SALEM DEBS Defendant

• and-

ATTORNEY GENERAL FOR ONTARIO Non-Party

COUNSEL: C. Fiske, on behalf of the Plaintiff No one appearing for the Defendant K. Toderishena for the Non Party

HEARD: January 18, 2022

ENDORSEMENT

A.J. GOODMAN J.:

[1] The plaintiff (Joseph”) seeks an order under rule 30.10 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, for production of a complete and unredacted copy of all documents relating to his ongoing prosecution for the allegations of a sexual assault against the defendant, (“Debs”).

[2] The motion is brought in accordance with the principles in D.P. v. Wagg, (2002), 2002 CanLII 23611 (ON SCDC), 61 O.R. (3d) 746 (Div. Ct.), aff’d in part, (2004) 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (C.A.) (“WAGG motion”).

[3] At the conclusion of submissions, I dismissed the plaintiff’s motion with reasons to follow. These are my reasons.

Background:

[4] This motion for productions is brought within a civil action alleging libel, wherein the plaintiff is claiming that the defendant defamed him on Twitter by accusing him of sexually assaulting her when she was a minor.

[5] On November 18, 2020, Joseph was charged with sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46.

[6] The criminal prosecution is ongoing. A judicial pre-trial had been scheduled for December 20, 2021. Joseph may elect to have a preliminary inquiry. Dates for a preliminary inquiry or a trial have not yet been set. The trial is intended to be scheduled in Spring of 2022.

[7] Joseph has received his criminal disclosure. However, his criminal defence counsel is of the view that the disclosure is incomplete and his criminal defence counsel may be seeking a judicial determination of the disclosure issue.

[8] The documents sought for this motion are part of the Crown brief for Joseph’s ongoing criminal prosecution. The Crown brief is made up of documents generated by the investigating police service, and by the Crown attorney with carriage of the prosecution.

[9] The Ministry of the Attorney General (“MAG”) agreed to produce a redacted statement of Debs, subject to certain terms and conditions. These terms include, inter alia, an undertaking that only Debs, Joseph, and their counsel are permitted to see it and that it not be shared with anyone else, to protect against witness taint.

[10] In May 2021, the plaintiff served their production motion on Waterloo Regional Police Service (“WRPS”), seeking an Order requiring WRPS and the Crown to produce “a complete and unredacted copy of its file related to an allegation of two sexual assaults made by the… Selam Debs… against Ameil Joseph and Third Party Nana Jr. Gyamfi-Kumanini that is alleged to have occurred on or about December 1998”. The request includes rape kits, unedited witness statements, doctor’s notes, witnesses’ names and addresses etc.

[11] On June 15, 2021, WRPS sent a letter to the plaintiff indicating that because the criminal investigation is still ongoing the motion needs to be adjourned. On July 26, 2021, MAG wrote to the plaintiff and explained that: (a) the pleadings in this civil action have not yet closed and, as such, MAG would not be in a position to assess whether criminal disclosure documents are relevant to the matters in issue; (b) the criminal proceedings are still before the court. Except in rare and exceptional circumstances, the Crown will not release Crown brief materials in an ongoing prosecution to preserve the integrity of the criminal prosecution and to protect the fair trial rights of the accused, and (c) after the criminal prosecution is concluded, the screening process would take 24 weeks after the complete disclosure brief and the set of pleadings are received by MAG.

[12] This motion was originally returnable on August 11, 2021. However, the matter was adjourned as it was learned that additional disclosure was forthcoming in the criminal case.

Issues:

[13] Should the WAGG motion be granted, and if so, on what terms?

Is the Non-Party’s position tantamount to a de facto stay of proceedings?

Positions of the Parties:

[14] The plaintiff submits that the police file and Crown brief disclosure ought to be disclosed for the civil action. The case law warns against staying civil proceedings pending the completion of criminal proceedings, which is what will occur if the Crown brief is not ordered to be produced at this stage of the civil litigation.

[15] In responding affidavit evidence, it is indicated that the Crown generally requires 24 weeks to process WAGG motion requests after a criminal case is complete. A trial is expected to be set for the Spring of 2022, followed by an appeal period. The plaintiff says that assuming an acquittal date and expiry of the appeal period by June 30, 2022, the parties will not receive the Crown brief until approximately January to March 2023.

[16] The plaintiff says that the productions requested for the Crown brief and disclosure in the criminal proceedings are relevant to the issues of liability and damages, which remain in dispute in the civil action.

[17] The Attorney General has refused to provide the productions on the grounds that there are ongoing criminal charges. The plaintiff submits that this is not reasonable and that the civil proceedings should continue. The parties need to put together their affidavits of documents prior to the discovery process and the statements made by Debs along with the other partygoer witnesses are critical to the parties developing a full appreciation of the evidence.

[18] The plaintiff contends that civil litigation and criminal litigation are separate proceedings. In effect, the Crown is advancing a stay of civil proceedings without explicitly stating as such in their materials. The credibility of the witnesses is at issue. Can a meaningful discovery and exchange of affidavit of documents take place without the critical evidence of Debs’ statement to the police, witness statements, and evidence from the party? The plaintiff says it cannot and will inordinately delay the civil action. As such, disclosure is warranted at this stage.

[19] The Attorney General opposes the production of the complete Crown brief on the basis of the prevailing jurisprudence and the public interest in protecting the integrity of the ongoing prosecution.

[20] The Attorney General responds that this is an extremely complicated historical sexual assault prosecution. Sexual assault prosecutions often turn entirely on witness’ credibility and Debs is expected to be called as a key witness. Typically, one of the main lines of defence for an accused in such a trial is to attack the strength and credibility of the complainant’s evidence. The Attorney General also objects to producing materials contained in the Crown brief that are publicly available through the courts, including the Information, copy of release documents, and other police documents that the Crown is not authorized to disclose.

[21] The Crown brief contains documents which the Attorney General objects to producing on the basis that such production will jeopardize the integrity of the criminal prosecution and the fair trial rights of the accused. The Attorney General says that such production would introduce a significant risk of witness taint or an appearance of witness taint if the documents are available to individuals who will be testifying in the criminal prosecution. The documents that are subject to this concern include: (a) Arrest Documents, (b) Victim’s Medical Records, (c) Police Notes, (d) Victim’s Statements (written and video), (e) Witness written statements (x 7), (f) Witness Video Statements (x7), (g) Email from Victim to Accused (2018), (h) Emails from WRPS regarding school records, (i) Photos from staff Christmas party, and (j) Screenshots of social media thread. The Attorney General submits that this motion seeking records in relation to the ongoing prosecution of the Plaintiff should be adjourned pending the completion of the criminal prosecution.

Discussion:

[22] Joanne Stuart, Crown counsel in charge of public interest screening, outlined in her affidavit as follows:

“Critical to the trial will be the account of Ms. Debs and her interactions with Mr. Joseph and Mr. Gyamfi-Kumanini, in December of 1998. It is vitally important to maintain the integrity of Ms. Deb’s evidence. In the normal course of a criminal case, a witness would not be exposed to the content of another witness’ anticipated evidence in order to avoid any inadvertent tainting of that witness’ independent recollection. Ms. Debs, and other potential witnesses, are not privy to certain information contained in the Synopsis. Once any of the witnesses, including Ms. Debs, reviews or hears about the contents of these records, their independent recollection and knowledge of the events leading up, and subsequent, to the alleged sexual assault would no longer be wholly independent. The Crown therefore opposes the release of the information contained in the Crown brief that could taint the evidence of Ms. Debs and other witnesses.”

[23] The integrity of a criminal prosecution is a serious policy and public interest consideration. The records sought are part of an ongoing prosecution in which the public interest is highly engaged. Out of respect for not compromising an ongoing investigation and prosecution, the common law holds that materials within an ongoing criminal investigation are protected from production by a qualified public interest privilege, which can be pierced only in a narrow set of circumstances.

[24] A Crown brief consists of records which raise, or have the potential to raise, public interests that must be protected. As the Divisional Court described in Wagg at paras. 22-24:

[22] The Crown Brief is prepared and its contents are created and gathered by the Crown in the exercise of its policing and prosecutorial functions, using the force of the state to do so, for the public purpose of prosecuting the accused and protecting the public against the commission of crimes.

[23] The Crown Brief may be comprised of a myriad of documents as varied as the fact situations underlying criminal prosecutions. Just to list some examples, the Brief may contain such documents and information as "will say" summaries of potential witnesses' testimony, actual statements of witnesses and others, statements of the accused and the complainant, sensitive information about police informants and witnesses, incident reports, statements of police officers, police officers' notes, photographs, videos, expert reports, wiretap evidence, surveillance reports, DNA orders and records, and many other kinds of information.

[24] The parties to a companion civil proceeding — or, at least, some of them — may have nothing to gain from protecting the legitimate interests that public policy requires be protected in this context. Indeed, they may not even think of doing so, and the Court — unguided by any party — may not even be aware of their existence. Hence, there is a need, in my opinion, for a mechanism to ensure the appropriate state agency has an opportunity to assert the public policy viewpoint.

[25] In support of his position, the plaintiff raises the case of N.G. v. Upper Canada College (2004), 2004 CanLII 60016 (ON CA), 70 O.R. (3d) 312 (C.A.). The case is distinguishable. One issue was the Master’s jurisdiction. More importantly, the impugned videotape had already been disclosed to the applicant in the ongoing criminal proceeding.

[26] In College of Physicians and Surgeons of Ontario v. Peel Regional Police (2009), 2009 CanLII 55315 (ON SCDC), 98 O.R. (3d) 301, the Divisional Court highlighted public interest concerns over the dissemination of the Crown brief, include the concern of compromising ongoing criminal prosecutions, at paras. 52-53:

In Wagg, the court recognized that the dissemination of the Crown brief can raise public interest concerns that may be difficult to predict. The court specifically identified police informant privilege, public interest immunity, the privacy interests of third parties (including safety concerns), as well as the concern that disclosure may compromise ongoing criminal proceedings, and recognized that some public interest concerns may not be reflected in the recognized privileges. The decision raises the possibility of new substantive objections to disclosure that may require the weighing of competing private and different public interest considerations to determine whether disclosure of all or part of the Crown brief should be refused in the public interest.

In addition to creating a process in civil proceedings with respect to the production of a Crown brief, Wagg also identified and articulated substantive public-interest grounds on which production could be opposed. As the public interest concerns arise from the nature of the Crown brief itself, the rationale for recognizing and taking into account public interest concerns applies with equal vigour to other proposed collateral uses of a Crown brief.

[27] In Dixon v Gibbs, [2003] O.J. No. 75 (S.C.), Smith J. dismissed a similar motion for production of a Crown Brief as the criminal prosecution was ongoing, noting that “[t]he integrity of the criminal prosecution of these serious charges is a serious policy and public interest consideration.”

[28] In G.L.K. v. C.L.K., 2021 ONSC 2021, Doi J. dismissed a similar motion for collateral civil production in the circumstances of an ongoing criminal prosecution. The Court held at paras. 134, 136-137 as follows:

[134]… I am satisfied that the court should exercise its discretion to not order production of the Crown brief at this time as disclosure may compromise the ongoing criminal proceedings and be contrary to the public interest.

[136] Protecting ongoing prosecutions is such an important public interest that records created for prosecutions are wholly excluded from access under privacy legislation while the prosecution is ongoing…

[137] Revealing the Crown brief to a witness may have the effect of colouring their memory of events and creating an opportunity for evidence to be tailored to fit other evidence.

[29] I adopt Doi J.’s analysis. I agree with the Attorney General that disclosure of the Crown Brief at this juncture could compromise the integrity of the ongoing sexual assault prosecution, including but not limited to resulting in the tainting of witness evidence, the risk of bringing the administration of justice into disrepute, and the risk of jeopardizing the right of an accused to a fair trial.

[30] I find that the risks of jeopardizing an ongoing criminal prosecution far outweigh any potential benefit of production of these records in this civil action which is in the early stages. Revealing the Crown brief to witnesses can colour their memory of events and create an opportunity for an accused to allege that the witnesses’ evidence has been tailored to fit the evidence of other witnesses. Moreover, even where deliberate tailoring is not an issue, it is simply not possible to know what the witnesses’ evidence would have been had they not been exposed to the recollection of other witnesses. The reliability of a witness's account can be undermined not only by deliberate collusion, but also by the influence of hearing other people's stories, which can tend to colour one's interpretation of personal events or reinforce a perception about which one had doubts.

[31] I agree with the Attorney General that I ought to decline to order production of the Crown brief on the basis that production would be contrary to the public interest. Further, even if the relevance criteria is met, the plaintiff is required to establish that it would be unfair for them to proceed to trial without the documents sought. The test for unfairness has been set at a high threshold, often described as one of “necessity” requiring “exceptional circumstances”.

[32] In making the fairness assessment required by Rule 30.10(1)(b), the Court must weigh the diverse interests in conflict and exercise their discretion “according to the degree of relevance and importance of the information sought relative to the issue between the parties.” The Plaintiff is required to establish on a balance of probabilities that it would be unfair to require him to proceed with his case without the documents sought.

[33] Various courts have stated that the following factors, among others, are guides to the exercise of the Court’s discretion under Rule 30.10: [Citations omitted].

(a) the importance of the documents in the litigation;

(b) whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the [Moving Party]

(c) whether the discovery of the [Responding Party] with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the [Responding Party]

(d) the position of the non-parties with respect to production

(e) the availability of the documents or their informational equivalent from some other source which is accessible to the moving parties

(f) the relationship of the non-parties from whom production is sought, to the litigation and the parties to the litigation. Non-parties who have an interest in the subject-matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true "stranger" to the litigation.

(g) the public interest consequences of ordering production.

[34] The plaintiff has not established that it would be unfair for him to proceed to trial without the Crown brief documents. The civil action is in its infancy. Pleadings have not yet closed, no affidavits of documents have been exchanged, and no examinations for discovery have been conducted. It is unknown what information will become available through the process of discoveries. The trial date has not yet been set. There is no urgency. Furthermore, Joseph and Debs are parties to the civil action and have personal knowledge of the events to which the requested documents pertain. The moving party has failed to exhaust alternate means of obtaining at least some of the requested records.

[35] I am persuaded that the public interest consequences of ordering production is another reason why the Rule 30.10 test is not met. There is an overriding public interest in maintaining the integrity of a historic complex sexual assault prosecution that turns on issues of credibility and witness taint. It outweighs any public interest in producing Crown brief materials in relation to this civil action which is in its early stages

[36] Finally, at para. 29 of his factum, Joseph argues that the witness taint concerns are contradicted by the fact that Debs may well be exposed to witness statements through the s. 276 and s. 278.1 applications that may be brought during the criminal process. Firstly, those applications have not been brought. Secondly, if these applications are brought, there will be mechanisms in place to protect against witness taint and to protect the accused’s fair trial rights.

[37] I accept Ms. Stuart’s explanation of the ambit of s. 278.1 disclosure:

“There is a potential for her [Ms. Debs] to receive a very small subset of the disclosure that would pertain only to those issues, and there are also constitutional protections built into the amendments that could prevent that from happening…”

“…there is no way that she [Ms. Debs] would ever receive the complete disclosure which is what you’ve requested. That will never happen on those applications. She would be permitted potentially to see some records, but – but it would be a very limited subset. And if Defence took the positions that it was contrary to the accused Charter rights, it could be prevented from happening…”

[38] With respect, the plaintiff has misinterpreted the ambit and latitude of a s. 278.1 application as it pertains to the relief sought in this motion. In any event, the plaintiff has failed to satisfy me that disclosure of the Crown brief is warranted at this juncture.

Conclusion:

[39] In sum, I agree with all of the Attorney General’s submissions. The public interest in protecting the integrity of the ongoing criminal prosecution and the Crown’s common law immunity require this motion to be adjourned until the criminal prosecution concludes. Further, I find that the plaintiff has failed to satisfy the test for non-party production under Rule 30.10.

[40] Moreover, the Attorney General’s position is not tantamount to a de facto stay of the civil proceedings. The plaintiff’s motion is hereby adjourned sine die and once the criminal proceedings are completed, this matter may be re-visited.

Costs:

[41] As the successful party, the Attorney General is presumptively entitled to costs. However, as I dialogued with counsel, I am inclined to reserve the issue of costs to the motions judge hearing this matter - should that be necessary - and once the criminal prosecution is complete. However, if the Attorney General wishes to pursue costs at this stage, costs submissions may be filed. These materials shall not exceed five pages in length, (not including any Bill of Costs or Offers to Settle). The Attorney General shall file its costs submissions within 15 days of today’s date. The plaintiff shall file his costs submissions within 15 days of the receipt of the materials. If submissions are not received by March 15, 2022, the file will be closed and the issue of costs considered settled.

A.J. Goodman J.

Released: February 4, 2022