Court File and Parties
COURT FILE NO.: CR-22-0285-00 DATE: 2023 03 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING – and –
JUSTIN SHARMA
THE PEEL REGIONAL POLICE
BEFORE: F. DAWSON J.
COUNSEL: C. Afonso for the Respondent (His Majesty The King) J. Hechter for the Applicant (Justin Sharma) S. Wilmot for the Third Party Respondent (Peel Regional Police)
HEARD: March 8, 2023
RULING ON DISCLOSURE APPLICATION
[1] This is an application for disclosure pursuant to R. v. Stinchcombe, [1991] 3 S.C.R. 326, or in the alternative pursuant to R. v. O’Connor, [1995] 4 S.C.R. 411. The applicant also asks for an order that the materials on this application and anticipated future applications be placed under seal in the trial office so that the public, including the police, will not have access to them. He also asks for an order that no transcript of the hearing of the application shall be produced before the jury retires to consider its verdict. He is concerned about police prevarication.
Factual Background
[2] The applicant is charged with possession of Fentanyl and with three firearms offences. The charges arise from a police stop of the black BMW X5 SUV the applicant was driving on the evening of March 29, 2021. When the police stopped the vehicle for a defective headlight they smelled freshly burned marijuana in the vehicle and noticed plant material, believed to be marijuana, spilled on the centre console and rear floor of the vehicle. The vehicle was searched pursuant to s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1. A loaded handgun was found under the front seat. Fentanyl pills were found in a satchel with the applicant’s identification. The applicant was alone in the vehicle.
[3] Counsel for the applicant places emphasis on other facts leading up to the vehicle stop as a basis for submissions that the additional disclosure he seeks should fall within the ambit of the “first party” disclosure regime flowing from Stinchcombe rather than the “third party” disclosure regime flowing from O’Connor. I will briefly describe those circumstances.
[4] On March 29, 2021 Csts. Lumsden and Charron of the Peel Regional Police (PRP) were patrolling in a residential area of Mississauga. A black BMW X5 with a defective headlight was coming towards them. Cst. Lumsden ran the licence plate number. The vehicle came back as registered to 8 Hoyle Drive. Cst. Lumsden maintains that he recalled hearing that address during a general radio broadcast back in December 2020, referred to as a “BOLO”, concerning a connection between a different vehicle registered to that address and a handgun. Therefore, he had Cst. Charron turn their police vehicle around so they could try and locate the BMW.
[5] A short time later they spotted the BMW and initiated a traffic stop. I am advised both officers describe this as a “dual purpose” stop. The stop was based on the defective headlight, but the purpose of a criminal investigation was also on their minds.
[6] A second police vehicle was also quickly on the scene. That vehicle contained Csts. Rice and Murad. They assisted in the search and arrest.
[7] The applicant points to differences between the evidence of officers from the two police vehicles. I am advised that Csts. Lumsden and Charron say they do not know how the second police car showed up on the scene. However, Csts. Rice and Murad maintain that they had previously stopped their police vehicle beside Lumsden and Charron’s vehicle and had a window-to-window discussion with the other officers. I am advised that Csts. Rice and Murad say that Cst. Lumsden told them he was looking for a black BMW SUV with a defective headlight and told them about the BOLO and his belief there may be a “nexus”. I am told that Csts. Rice and Murad claim to have seen the black BMW again at almost the same time as Lumsden and Charron did, and so they immediately became part of the traffic stop.
[8] Counsel for the applicant claims this is a strange narrative. He asserts that the two versions are “irreconcilable” and that “the reasons for the difference matters”. He submits that everything to do with the lead-up to the traffic stop and subsequent search is relevant to ss. 8, 9, 24(1) and 24(2) of the Charter. I am advised that a series of pre-trial applications are scheduled in May 2023 raising alleged Charter violations and that a stay of proceedings may or will be sought. Those applications will allege that the applicant was targeted and stopped for a criminal investigation and that officers intentionally created misleading notes and gave false evidence at a discovery to cover things up.
[9] It appears that a good deal of mistrust has been built up between counsel for the applicant and Crown counsel and counsel for the PRP. This seems to me to flow from some other background facts and some unfortunate miscommunications between counsel on both sides of the case.
[10] In terms of background facts, it seems that the applicant’s father had a friendship with a man who was a target in two large police projects being conducted by other police services in Ontario around the same time as these events. That man was arrested and charged with offences in connection with those proceedings but has since died. An affidavit filed by the applicant’s father on this application describes how he would visit with that now deceased party and drive him in his vehicles. The applicant’s father describes how he had also been stopped by the police on prior occasions.
[11] The disclosure requests made by the applicant reflect a suspicion that he or his family were targets or under suspicion in connection with these two police projects. The applicant has requested copies of all notes associated with Project Cheetah and Project Southam relating to observations of a black BMW X5 SUV bearing Ontario licence plate CKAN989. That is the vehicle the applicant was driving on October 29, 2021.
[12] The Crown has advised the applicant that it is not in possession of project Cheetah or Project Southam material in relation to its prosecution of the applicant. Counsel for the third party, PRP, has advised that as the two projects referred to are being conducted by other Ontario police forces, PRP has no records concerning those projects. Additionally, inquiries have been made and the applicant has been advised that the BMW X5 in question was not part of the investigation in those projects. While it took time and effort to resolve this aspect of the matter, I am advised the applicant is no longer pressing this issue.
[13] In terms of communication problems, I point out the following. There have been many disclosure requests. Several appear to be technical in nature, requiring searches of databases and concerning how, when and by whom various electronic searches and data base checks were performed. It seems to me these types of requests can sometimes be misunderstood. They pass from defence counsel to Crown counsel. They must then pass from Crown counsel to the police, and in this case they often passed from the Crown to counsel for the police before being passed on the police. At each stage there is a potential for misunderstanding or miscommunication. Additionally, requests may need to be passed between members of the police service. Information technology (IT) assistance has been required in attempts to locate the requested information.
[14] In addition, as I mention below, it became apparent during the argument of this application that misunderstandings and communication errors have occurred which have eroded the trust counsel should generally have for each other in the orderly conduct of litigation. This is unfortunate. It seems to have fuelled even more disclosure requests by the applicant.
The Requested Disclosure
[15] Nine disclosure requests appear in Appendix A to the Notice of Application. I will briefly summarize how they have either been resolved or remain to be dealt with by me.
[16] The first request is for the “project” notes disclosure which I have already referred to. It has been resolved.
[17] The second request is for a CPIC audit for Ontario licence plate CKAN 989, the BMW X5, for the period of Project Cheetah and Project Southam. That was produced during the hearing of the application in the circumstances described below.
[18] The third request is for all notes of all officers who stopped the applicant’s father while he was driving the BMW X5 in question during the time of the two projects I have referred to and including his stop by PRP on June 28, 2021. I am advised this is no longer being pursued.
[19] The fourth request is for “any and all judicial authorizations and ITO’s” associated with the BMW issued since the beginning of the two projects. As there are none, this is no longer in issue.
[20] The fifth request is for unredacted copies of two parts of the PRP General Procedures Directives, which are specifically identified in the Notice of Application. This has been expanded by a request for other police directives contained in a Supplementary Notice of Application. Aspects of this request remain unresolved. I will deal with this issue below.
[21] The sixth request is for all phone records, including times and durations and identifying incoming and outgoing numbers and text messages, for cell phones used by ten named PRP police officers on March 29 and 30, 2021. With respect to Cst. Lumsden, the request includes the same information for his personal cellphone. Counsel for the PRP advises that the police do not have such information. In relation to Cst. Lumsden, they advise they have no access to his personal cellphone records. Consequently, counsel for the applicant advised me at the hearing that he is not pursuing this aspect of the application.
[22] The seventh request is for the notes of Cst. Lumsden made on December 7, 8, and 9, 2020. Only December 7 and 8 are requested in the Notice of Application. December 7 into December 8, 2020 was the night and early morning when the BOLO mentioned by Cst. Lumsden was issued. This request was the subject of submissions and I deal with it below.
[23] The eighth request is for a recording of the general radio broadcast, referred to as the BOLO, which Cst. Lumsden says he recalled on March 29, 2021 having heard back in December 2020. That has been located and produced, so it is no longer in issue.
[24] The ninth request is a basket clause request for such further material, the existence or relevance of which may became apparent. Some aspects of the submissions heard on this application may be considered as falling under this request.
[25] As the hearing of the application proceeded headway was made in gaining a degree of understanding and communication between the parties which can be characterized as progress.
[26] Before further describing the issues that remain to be resolved, I wish to add the following. Counsel for the Crown has expressed throughout that the Crown takes the position that much of what has been sought is not within the Crown’s possession for the purpose of this case and does not fall within its first party disclosure obligations. Nonetheless, the Crown has made efforts to facilitate the production of the requested information to move the case along.
[27] Similarly, Ms. Wilmot on behalf of the PRP, takes the position that the likely relevance threshold has not been met as required at the first step of the O’Connor third party disclosure regime. However, the PRP have nonetheless made efforts to locate and provide the requested information where it is available, not clearly irrelevant, and not subject to any form of privilege. This approach by both the Crown and the PRP is helpful but is not a concession that the items they have agreed to produce are properly producible pursuant to Stinchcombe or O’Connor.
The Applicable Legal Principles
[28] These are by now relatively well known and in the interest of efficiency and judicial economy I will not repeat them here. I recently summarized the principles relating to both first and third party disclosure in R. v. Ali, 2020 ONSC 4410. See paras. 22-30 of Ali in relation to first party disclosure pursuant to Stinchcombe, and R. v. McNeil, [2009] 1 S.C.R. 66, and paras. 31-34 of Ali in relation to third party disclosure pursuant to O’Connor. I have proceeded accordingly in this case. As I mentioned in Ali, at para. 23, the principles relating to first party disclosure were thoroughly reviewed by Watt J.A. in R. v. Pascal, 2020 ONCA 287, and by Rowe J. in R. v. Gubbins, [2018] 3 S.C.R. 35.
Analysis
[29] The first remaining issue relates to what various police officers saw when they ran checks on the Canadian Police Information Computer (CPIC) on March 29, 2021. That data base is operated by the Royal Canadian Mounted Police (RCMP) and is accessible to police services across Canada which have been granted access.
[30] I am advised that several PRP officers in addition to Cst. Lumsden ran various computer checks related to this case the night the applicant was stopped. I am advised that some Criminal Investigation Bureau (CIB) officers who were monitoring police communications that night did such checks. I am told there is evidence that some members of CIB are tasked to monitor police communications and that it is not unusual for CIB officers to run checks on persons or places mentioned in such communications. That is done in case CIB has to step in to take over an investigation. I observe that the PRP directives disclosed to the applicant indicate that Divisional CIB will be responsible for firearms investigations.
[31] The remaining disclosure issue concerning these checks focuses on CPIC checks as opposed to checks of other data bases. The applicant points to correspondence dated October 7, 2022 from Ms. Meaghan Hourigan, Crown counsel who was previously assigned to the case, which he interprets as advising him that he would be provided with details of what the CPIC system showed when checks related to the applicant and the vehicle he was driving were run on March 29, 2021. Despite that correspondence he says he has not been provided with the information.
[32] At the hearing of the application both currently assigned Crown counsel, Ms. Afonso, and counsel for the third party PRP, Ms. Wilmot, advised me that this is an area in which there has been misunderstanding and probably some miscommunication. Ms. Afonso and Ms. Wilmot both advise that Ms. Hourigan must have misunderstood or been misadvised about what was possible. Further inquires have led to the conclusion that it is not possible to provide the information requested. That is because CPIC is a system onto which and from which items are being continuously added and removed by way of submissions from law enforcement agencies all over the country. Checking the system today may give a different result than checking the system yesterday would have. In other words, it is a point in time system. I am told that neither Crown counsel nor the PRP have any way of determining in this case with any certainty exactly what the officers saw when they looked at the system on March 29, 2021. They have no way to produce a historical snapshot of what the system showed about the applicant or the vehicle on March 29, 2021.
[33] Counsel for the applicant is suspicious of this response. He points to the decision of D.E. Harris J. in R v. Matharoo, 2020 ONSC 4215 and submits that it appears such information was able to be produced in that case. At para. 6 of Matharoo, D.E. Harris J. mentioned that the response the investigating officer received from her computer query was produced as part of the disclosure in that case, in the form of a “read-out”. Counsel for the applicant in this case points to that as an assertion that what I am now being told by Crown counsel regarding CPIC should not be accepted.
[34] In my view, that conclusion cannot be drawn from Matharoo. In Matharoo, the accused was stopped because he was driving a vehicle that had been designated as a “pointer car” on what Harris J. described, at para. 3 of his judgment, as “the police computer system”. However, Harris J. mentioned, at para. 4, that the computer checks done by the investigating officer in that case were run on both a PRP computer database and on CPIC. It is not clear whether the “read-out” mentioned in Matharoo was from CPIC or the local computer system. More significantly, there is no indication that the piece of disclosure described was an after-the-fact re-creation of what the officer observed when the check was run.
[35] In the case before me, two responsible counsel are advising me as officers of the court that after carefully looking into the matter they have been advised it is not possible to provide the re-creation requested. I have no evidence to the contrary. On this record I decline to make an order for the production requested. It is not that this information is not relevant or that this information is not disclosable under Stinchcombe and or McNeil which leads to my decision, but the information I have been given that the material sought does not exist and cannot be re-created.
[36] The second disclosure request which I must resolve relates to requests for various policy directives of the PRP. Two such directives were requested in the original Notice of Application. They were for Directive 1-B-722 (F) Criminal Investigations and Directive 1-A-401 (F) Radio Communications. Prior to the hearing the PRP produced those portions of the two directives that were, in their opinion, not clearly irrelevant. What was produced included large blacked out areas representing redactions. The applicant has continued the application to obtain the redacted material.
[37] I am advised that as the hearing was about to commence the PRP provided the applicant with additional generic information concerning the nature of the various redactions. For example, the applicant was advised that certain redactions related to investigating young offenders. That showed that the redacted material was clearly irrelevant. Other redactions were attributed to radio and other procedures to be followed when searching for a missing police officer. Such material is clearly irrelevant and might be subject to public interest or other forms of privilege. The provision of this additional information has been very helpful in resolving this issue and an order is no longer required for these two directives.
[38] However, three additional policy directives are sought in the Supplementary Notice of Application. Counsel for the PRP advised the applicant and the court during submissions that all portions of those directives which are not clearly irrelevant will be provided to the applicant. Based on my understanding of the submissions made at the hearing, the only dispute remaining is with respect to Directive 1-B-709 (F) which concerns police informants and agents.
[39] Additional factual background is required to deal with this matter. After the applicant was arrested he was taken to 22 Division, where he was interviewed while being video and audio recorded. I am advised that he was steadfast in asserting that he would follow the advice of his lawyer and remain silent. I understand that two officers then took the applicant to a nearby room and spoke to him “off camera”. The off-camera interview has not been disclosed to counsel for the applicant. Counsel requested the disclosure of officer notes of the off-camera interview. He was told the officers had no notes indicating that such an interview even occurred. When one of the officers was questioned about the off-camera interview at a discovery hearing, I am advised he would not discuss the conversation or say whether it related to an investigation. The Crown then asserted privilege at the discovery. In his factum the applicant alleges he will call evidence during the pretrial motions to show that the privilege claim is baseless.
[40] The officer who refused to speak of the off-camera interview at the discovery testified that he was aware that there were police policy directives about “unrecorded briefs” but said he was not familiar with them. That led to the additional disclosure request.
[41] At the hearing Crown counsel advised me that she had obtained approval from her superiors to disclose information which would not normally be disclosed pursuant to Crown policy. Ms. Afonso then revealed that the applicant was taken to a room off camera and was asked if he would become a confidential informant. The applicant refused to become a confidential informant and that ended the off-camera interview. Consequently, there is no issue related to confidential informant privilege and the Crown and the PRP assert that the policy directives concerning confidential informants are, therefore, irrelevant.
[42] During oral submissions I asked counsel for the applicant whether there was any evidence collected from his client during either of the police interviews which he sought to exclude for alleged Charter violations. He indicated that there was not, as the applicant had remained silent. In terms of relevance of the directives, however, counsel for the applicant asserted that he believed there was a “systemic problem” with the police using the ruse of trying to recruit accused persons as confidential informants as a means of speaking to them off camera while the accused was under arrest and the police were still gathering evidence concerning their original investigation. He submitted that such systemic practices were relevant concerning alleged s. 9, s.10(b) and possibly s. 7 Charter violations. Counsel submitted that he intended to bring a stay application on this basis, given that there was no evidence to exclude.
[43] Although the applicant acknowledges that there is no confidential informant privilege in this case, he asserts that anything in the PRP directives concerning how confidential informants are or are not to be recruited is relevant to the issue he wishes to pursue. He submits the likely relevance threshold is met on this basis and that I should order production of the directives to the court for review pursuant to the first stage of the O’Connor procedure in connection with that issue.
[44] On the record before me I am not prepared to order the production of the police directives on confidential informants. First, this is clearly third party material. It is not in the possession of the Crown and it is not part of the fruits of the investigation. It is not so obviously relevant that it falls within the scope of the Crown’s obligation to make inquiries pursuant to McNeil. As indicated in McNeil, requests such as this will usually fall to be decided under third party disclosure principles pursuant to O’Connor.
[45] In terms of third party disclosure, I observe that the onus is on the applicant to establish likely relevance. There is no evidence to exclude on the basis that the off-camera interview occurred. With respect to a stay, the applicant has not produced any evidence that what occurred is part of a systemic approach being taken by the police. That allegation is the only foundation for a submission that there should be a stay of proceedings. Consequently, the applicant has failed to satisfy his onus to show likely relevance at the first stage of the O’Connor procedure concerning this disclosure request.
[46] However, of even more significance, after a break in the proceedings counsel for the PRP, Ms. Wilmot, advised me that she had carefully gone back through the PRP directives concerning confidential informants. She advised the court that nothing in the directives addresses how confidential informants should and should not be recruited. In other words, I am advised that the material the applicant wants does not exist. In the absence of any evidence to the contrary there is no reason for the court to engage in the exercise of obtaining and reviewing all the directives related to the handling of confidential informants.
[47] On a related matter, however, it seems to me that the officers who were involved in the off-camera interview should be directed to prepare notes and “will say” statements about what occurred during the off-camera interview. Given that there is no privilege issue, this should be provided as first party disclosure.
[48] The third disputed area relates to the applicant’s request for Cst. Lumsden’s notes for December 7, 8, and 9, 2020. The applicant mistrusts Cst. Lumsden’s assertion that he remembered the BOLO. The applicant is making disclosure requests to try and find out whether there is anything that contradicts or corroborates Cst. Lumsden’s claim. Specifically, he is trying to uncover whether Cst. Lumsden was in a position to have heard the BOLO by seeking his notes to determine whether Cst. Lumsden was working at the time the BOLO was broadcast.
[49] There is also additional background relating to this issue. Crown counsel previously determined that Cst. Lumsden had no notes confirming that he heard the BOLO. As there were no such notes, Crown counsel had the officer prepare a “will say” statement indicating that. The applicant was not satisfied by this. He takes the position that if Cst. Lumsden was working he must have some notes regarding unrelated matters to confirm that. The response from Crown counsel and the PRP is that officer notes unrelated to this investigation are not disclosable and that disclosure obligations do not extend to all information which might corroborate the relevant evidence which has already been disclosed.
[50] This matter was also impacted by miscommunication that only came to light during the hearing of the application. Pursuant to other disclosure requests made by the applicant, the PRP conducted a CPIC audit of all checks made on the licence plate number of the black BMW X5. That audit shows that Cst. Lumsden ran that very plate number on the night of the BOLO. That information, therefore, confirms that Cst. Lumsden was working at the time of the BOLO and that he had a reason to connect the BMW X5 he saw on March 29, 2021 back to the BOLO.
[51] During the hearing both respondents asserted that the applicant had disclosure of information in the CPIC audit confirming that Cst. Lumsden was working and heard the BOLO. Therefore, there was no need to disclose Cst. Lumsden’s notes on unrelated matters. The applicant asserted he had no such information. It turned out Ms. Afonso thought Ms. Wilmot had provided the CPIC audit to the applicant while Ms. Wilmot, who sent the audit to Ms. Afonso, was relying on Ms. Afonso to disclose that material to the applicant.
[52] Once production of the CPIC audit was made in the courtroom, it was counsel for the applicant who then pointed out that the BOLO related to a different vehicle than the BMW X5 in question here. The BOLO reported that a gold-coloured vehicle registered to 8 Hoyle Dr. in Mississauga had fled from the Waterloo Regional Police and that there may be a gun inside that vehicle. However, the CPIC audit shows that Cst. Lumden, for some reason, ran the plate of the BMW X5 involved in this case shortly after the BOLO was broadcast.
[53] After that was pointed out counsel for the respondents agreed that a portion of Cst. Lumsden’s notes from the December dates were relevant. They agreed to produce Cst. Lumsden’s notes for the time surrounding the broadcast of the BOLO and the checks he subsequently ran. The applicant was content with that undertaking. I agree that these notes, identified with more precision at the hearing as extending from 22:24 on the night of the BOLO to 06:00 the following morning, should be disclosed as first party disclosure. In all the surrounding circumstances their relevance has been established.
[54] The applicant also wants notes from Det. Statham produced in connection with unrelated matters. The applicant points to Det. Statham’s “will say”. In that statement Statham says that as a CIB officer he routinely runs checks on vehicles on which other officers have conducted traffic stops. Statham advances this as an explanation for why he ran a check on the licence plate number of the BMW X5 on March 29, 2021. The applicant mistrusts this assertion. He seeks disclosure of other checks run by Statham during the same shift so he can see if Statham is truthful.
[55] Ms. Wilmot submits on behalf of the PRP that the applicant is proceeding on the basis that the Crown and the police are under an obligation to disclose all information which might exist which could either corroborate or detract from the accuracy of other properly disclosed information.
[56] I would not order production of Statham’s notes for unrelated matters during the same shift. Such information is not in the possession of the Crown and does not fall within the type of obviously relevant information the Crown is obligated to inquire about pursuant to McNeil. It is third party information. No showing has been made that any notes Statham made or did not make on that shift are likely relevant. My understanding is that Statham and other officers said they sometimes run checks on vehicles mentioned in police communications monitored by CIB, not that they always made notes when they did so. The absence of such notes would be of no assistance. Likely relevance has not been established at the first stage of the O’Connor procedure.
[57] I turn now to the applicant’s request for a sealing order. In his Notice of Application the applicant asks for: “an Order prohibiting the provision of this Notice, the Applicant’s Factum and record, or the information derived from the Application, to any potential witness on the Charter motions scheduled for later this year.” At the hearing the applicant broadened his request to one that the materials on this and subsequent applications be placed under seal and kept in a secure location where the public will not have access to them. At the hearing the applicant also asked for an order that no transcript be produced before the jury retires to consider its verdict, except by order of the court.
[58] Any order that limits access to a court proceeding or information in the court file runs counter to the presumptive operation of the open court principle: Sherman Estate v. Donovan, 2021 SCC 25, at para. 3; A.B. (Litigation Guardian of) v. Bragg Communications Inc., 2012 SCC 46, at para. 11; Canadian Broadcasting Corporation v. Manitoba, 2021 SCC 33, at para. 83. The burden of justifying any restriction on the open court principle rests upon the party seeking to do so: Vancouver Sun (Re), [2004] 2 S.C.R. 332, at para. 25.
[59] In any situation where a discretionary order which would interfere with the open court principle is sought the two-step process established by the Supreme Court of Canada, commonly known as the Dagenais/Mentuck test, must be followed: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, at para. 32; H. (M.E.) v. Williams, (2012) 108 O.R. (3d) 321 (C.A), at para. 21. Under that test it must first be established that the order is necessary to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk. At the second stage of the test the court considers whether the salutary effects of the restrictive order outweigh the deleterious effects on the rights and interests of the parties and the public, including effects on the right to free expression, fair and public trials and the efficacy of the administration of justice: Mentuck, at para. 32.
[60] As held by Doherty J.A. in H. (M.E.) v. Williams, the necessity inquiry must come first. At para. 31 Doherty J.A. wrote:
[31] The necessity branch focuses exclusively on the existence of a serious risk to a public interest that can only be addressed by some form of non-publication or sealing order. The potential benefits of the order are irrelevant at this first stage of the inquiry: Mentuck, at para. 34. Unless a serious risk to a public interest is established, the court does not proceed to the second branch of the inquiry where competing interests must be balanced.
[61] The applicant has not filed evidence or referred to material in the record which establishes that there is a serious risk to a public interest. Clearly, he mistrusts the police. However, the material filed does not establish the prerequisites to the orders which he seeks, which would have a serious negative impact on the open court principle. Counsel for the applicant submits that the credibility of the police officers named in his materials will be critical to the coming motions. However, beyond his submission that certain positions are “irreconcilable” no misconduct or impropriety has been demonstrated.
[62] The applicant submits that Det. Statham’s “will say” statement “suggests my friends have spoken to him” regarding the applicant’s “concerns”. He adds that “issues raised in cross-examination at discovery may have been communicated” to officers who will be witnesses on the coming pretrial application. This sort of speculative concern falls far short of meeting the requirement of necessity at the first stage of the Dagenais/Mentuck test.
[63] In terms of something less than an order which would interfere with the open court principle, I am not satisfied that any order should be made. Counsel for the respondents point out that if the orders sought short of a sealing order are granted that will make it very difficult for the Crown to prepare its case and difficult for both respondents to deal with further disclosure requests.
[64] Ms. Afonso observes that the applicant’s request in his Notice of Application extends so far as to prohibit counsel for the respondents from disclosing any “information derived” from the pretrial applications to police witnesses. This is broad, ill-defined, and unworkable. Ms. Wilmot points out that she attempted to follow such a restriction when preparing for this application. It made it very difficult for her to investigate and try to satisfy the applicant’s numerous disclosure requests. Counsel for the respondents indicate that they have no intention of sharing the applicant’s pleadings, facta or details of his arguments with the police, but stress that they need to maintain their ability to properly prepare the case and respond to disclosure requests.
[65] I conclude that the orders sought are unwarranted on the record before me. A sufficient foundation for the making of any form of restrictive order has not been established. While counsel for the applicant has suspicions and concerns, on an objective assessment this case is not shown to be in any different category than many cases coming before the court. In the absence of an evidentiary foundation, I am not prepared to make any restrictive orders which will likely interfere with the ability of responding counsel to ethically discharge their professional obligations.
Justice F. Dawson
Released: March 31, 2023