Court File and Parties

COURT FILE NO.: CV-19-1738 DATE: 2023-05-12

SUPERIOR COURT OF JUSTICE – ONTARIO

7755 Hurontario Street, Brampton, ON L6W 4T6

RE: Lowell Somerville, Plaintiff AND: Regional Municipality of Peel Police Services Board, Damien Savino, Mihai Muresan, Manuel Pinheiro, Richard Rerrie and Jennifer Evans, Defendants

BEFORE: The Honourable Justice Tzimas

COUNSEL: James Armstrong, for the Plaintiff Alexa Banister-Thompson, for Damien Savino, Mihai Muresan, and Richard Rerrie Eugene Bhattacharya, for Manuel Pinheiro Nobody appearing for The Regional Municipality of Peel Police Services Board and Jennifer Evans

HEARD: March 15, 2023

ENDORSEMENT

INTRODUCTION

[1] The plaintiff moved for Orders to exclude each defendant Officer from sitting in on the examinations for discovery of their co-defendants and prohibit communications between the same defendants until the conclusion of the examinations. He submitted that the there is a risk that absent the requested order, the defendant officers’ testimonies will be tailored or parroted, just as they were in the plaintiff’s criminal proceedings.

[2] The defendants Savino, Muresan and Rerrie (defendant officers) opposed the relief sought. They submitted that as parties to the litigation they have an inherent right to attend each other’s discoveries. They contended that there was no evidence the defendants were at risk of tailoring their evidence at discoveries, that such a risk, if it existed was attenuated by the defendant officers’ notes, transcripts and previous examinations, that credibility would not hinge on the discoveries, and that an exclusive order would severely prejudice them because they have common interests and mostly common counsel. In sum, the ends of justice would not favour an exclusion order.

[3] The defendant Pinheiro also opposed the motion. He focused on the multiple examinations and testimonies in the context of two criminal trials, the first relating to Somerville’s criminal proceedings that were stayed and the second being the criminal trial of the defendant officers, where they pleaded guilty to obstruction to justice contrary to section 139 of the Criminal Code, R.S.C. 1985, c. C-46. He argues that those examinations were thorough such that there would be nothing more to explore or to result in any surprises for the defendants. In other words, exclusive examinations would not provide the plaintiff with any tactical advantage.

[4] In any event, the ability of plaintiff’s counsel to curate a strategic cross-examination of the defendants, was not a sufficient reason to exclude the defendants from participating fully and assisting in their own defence in real time, during the examinations for discovery. Instead, observing the evidence in real time would provide the defendant the opportunity to assist counsel with questions that should be asked or considered and to assess the strength of the overall case, as it may relate to issues of settlement.

[5] For the reasons that follow the relief sought by the plaintiff is granted. The specific terms of the order to be issued are outlined at the conclusion of these reasons.

BACKGROUND

[6] The action arises out of a search warrant that the defendant officers and Officer Pinheiro, (the Officers) executed on the Plaintiff’s storage locker on June 24, 2014. In the course of that search, the plaintiff alleges that the defendants took various items belonging to him. In the plaintiff’s criminal proceeding, and specifically in the course of a voir dire, for various alleged Charter violations, the Officers all testified that they did not take any items belonging to the plaintiff. The plaintiff then tendered evidence of security footage that depicted Officer Rerrie exiting the storage facility with an item belonging to the plaintiff. The defendants were recalled to testify. The trial judge made several findings that cast doubt on the Officers’ ability to speak truthfully on the matter of the storage locker search, see R v. Somerville, 2017 ONSC 3311. Although I do not propose to repeat those findings in detail, for the purposes of the motion before this court, I highlight the following findings:

a. The officers were trying to hide something; b. The officers wanted their evidence to be vague so as to neither reveal what the Defendant Rerrie had done nor perjure themselves; c. The officers all saw Officer Rerrie leaving with a large object in his arm; d. The officers decided that they would prefer to testify that they did not recall what happened, rather than implicate Officer Rerrie; e. Each of the officers decided that he was not going to be truthful in court; f. Officers Savino, Muresan and Pinheiro knew what the defendant Rerrie did at the time, and came to court and lied about their knowledge by claiming to have no memory of Officer Rerrie taking anything; and g. Officer Rerrie fabricated a lie about leaving the storage facility with a statue.

[7] Ultimately, the judge concluded:

[165] But for me, what is worse, is that four officers attempted in their testimony, to deliberately mislead the court. Officer Rerrie fabricated a story that, for all reasons I have set out, came across as palpably false. The other officers were noticeably cagey and coy in their evidence before they were aware of the existence of the videotape. When they realized that there was a videotape, each officer chose to claim memory loss. I found those claims to be unbelievable and conclude that the officers testified in an effort to perpetuate a deception on the court and to try not to implicate themselves in what they knew was wrong. (My emphasis).

[166] No one – not these officers, not the Peel Regional Police, not Mr. Somerville, and clearly not the public, can be left with an impression that the court tacitly approves the course of conduct taken by these four officers. This is conduct both during the investigation and at the trial before me, is profoundly and inconsistent with what a fair justice system requires. It is only by permanently stopping these proceedings through a stay that the court can effectively distance the justice system from this gross and continuing misconduct: R v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131 at paras. 103-107.

[8] As a result, the criminal trial was stayed under ss. 7 and 24(1) of the Charter, and the Officers were suspended from their duties pending investigation by the Peel Regional Police Internal Affairs. That investigation involved over 50 interviews with police and civilian employees. Following that investigation, the officers were charged. In an Agreed Statement of Facts, they admitted that Officer Rerrie took the plaintiff’s Tony Montana statue, from the locker. They also admitted that they tried to obstruct, pervert, or defeat the course of justice by providing a false or misleading account of the search of Somerville’s locker.

[9] On April 24, 2019, the plaintiff issued his Statement of Claim, alleging harms stemming from the events raised in the Discovery Hearing, the Trial, the Application and the Investigation.

[10] On April 30, 2021, Regional Municipality of Peel Police Services, the Board (the Board) produced an unsworn affidavit of documents of nearly 4,000 pages which included copies of the Officers’ duty notes from the search and the events preceding it, transcripts of the examinations and cross-examinations at the Discovery Hearing, the Trial and the Application, respectively, and notes and transcripts of the interviews with the Officers and various officers and civilian witnesses during the investigation. The plaintiff would like to proceed with examinations for discovery of each of the defendants.

ANALYSIS

[11] The plaintiff’s request for an exclusion order requires this court to balance the prima facie right of the defendants to be present during their action and the plaintiff’s right to have examinations for discovery that are uncompromised by the possible collusion between parties with similar or identical interests that may lead to the tailoring or parroting of evidence or threaten fairness or justice. This balancing act requires the court to consider whether the “exclusion is necessary to meet the ends of justice?”, see DiMartile v. GMCL, 2012 ONSC 3149, Visram v. Chandarana, 2010 ONSC 4080, and Lazar v. TD General Insurance Co., 2017 ONSC 1242.

[12] I have reviewed the various authorities presented in submission by all the participating parties. It is evident to me that many cases are fact-specific and the factors for consideration are non-exhaustive. In this instance, on the facts before me, I agree with the defendants’ suggested factors for consideration which are discussed in Lazar, at paras. 39-40:

a) whether evidence is likely to be tailored or parroted; b) whether it appears the examinations for discovery will cover the same grounds; c) whether credibility will be a factor or an issue in this case; d) whether the co-parties have common interests; e) whether the same lawyer represents the co-parties; f) whether there would be prejudice to the excluded party; and generally, g) whether the ends of justice require the exclusion.

I propose to review each of these factors and to explain the reasons for my conclusion.

a. Is there evidence of a risk that the Officers may tailor their evidence at discoveries

[13] On the unique facts before me, I find that there is a risk that the Officers may tailor their evidence at discoveries. I disagree with the defendants’ contention that there is no evidence of “tailoring” by the Officers, or that any such risk would be attenuated by the evidence already provided at the various examinations and cross-examinations of the Officers. Although Justice Woollcombe may not have used the term “tailoring” in her assessment of the officers’ evidence, she used various synonyms and tracked a pattern of similar responses in the questions that were put to the Officers. She noted that each officer “decided” not to be truthful to the court, (para. 129). At paragraph 126, the judge included numerous bullets with concerns. For the purposes of this analysis the judge’s finding of a very specific pattern in the officers’ approach to their initial testimony is very compelling:

FIRST BULLET: When each of the officers testified initially, each seemed very concerned with drawing a critical distinction between whether anything was seized from the storage unit and whether anything was taken from the facility. I have set their evidence out in detail already. At the time I heard it, it was clear to me that they were trying to emphasize that nothing was seized from the unit. But when it came to answering whether anything was had been seized from the facility, each officer was far less sure. This seemed odd and inexplicable to me at the time. There was absolutely no reason for them to draw this sort of arbitrary distinction unless they were trying to hide something. They certainly had no explanation for why they were so sure about the storage unit, but less sure about the facility. Having reflected on the evidence as a whole, I find that the only explanation for this unusual and otherwise inexplicable distinction between the storage unit and the facility was because the officers knew that Officer Rerrie had taken something that he should not have and that they wanted their evidence to be vague so as to neither reveal what Officer Rerrie had done nor perjure themselves.

“I found that when the officers were recalled and shown the videotape, each of them had a very peculiar and inexplicable memory of the events of the evening. Each was able to say with certainty that nothing was seized from the storage unit. Yet, each had a huge memory gap of even having seen Officer Rerrie with the object. In my view, it is not the case that the officers had no memory. Rather, they have decided that they would prefer to testify that they do not recall what happened, rather than to implicate Officer Rerrie in taking the statue or acknowledge their awareness of what he was doing at the time. (my emphasis)

[14] What the judge described amounted to tailoring, even if she did not use that term. The reference to peculiar coincidences was a diplomatic reference to tailoring. Officers Savino, Muresan and Pinheiro told the same story. They followed the same pattern in their answers, the same distinctions, and had the same memory losses over the same questions. They followed the same approach to protect Officer Rerrie.

[15] Especially when I read the judge’s finding: “the only explanation for this unusual and otherwise inexplicable distinction between the storage unit and the facility was because the officers knew that Officer Rerrie had taken something that he should not have and that they wanted their evidence to be vague so as to neither reveal what Officer Rerrie had done nor perjure themselves”, what the judge was effectively saying was that they tailored their evidence to draw out a distinction between the unit and the facility. When the judge says “they wanted their evidence to be vague”, that too is a form of tailoring.

[16] I hasten to add that what was most remarkable was the similar way in which the officers pivoted from not knowing anything about a statue removal, to knowing about it. Prior to seeing the surveillance, all three drew the distinction between the storage unit and the facility. After they were shown the surveillance, they had similar memory failures. They preferred to say they did not recall what happened, rather than admit to seeing Officer Rerrie walk off with the statue. The coincidences in the officers’ approaches to their evidence are simply too rich for the defendants to now say that Justice Woollcombe did not find any tailoring of the evidence.

[17] As for the submission by the defendant officers that: “nowhere does Justice Woollcombe find that the Defendants tailored their evidence. On the contrary, when Her Honour was asked to make such a finding – with the benefit of viva voce evidence – she declined to do so” (paragraphs 138 and 139 of the decision), with the greatest of respect, that is a complete misreading of the decision. The judge’s comments at paragraphs 138 and 139 were made specifically with reference to an allegation about specific communications between Officers Savino and Muresan. Justice Woollcombe rejected the argument that the witness sought to tailor their evidence during the court break but also said that in any event, she would not be relying on that contact for her analysis and findings. Those comments are a far-cry from the defendants’ categorical suggestion that the judge declined to make any findings that the officers tailored their evidence.

[18] In response to the suggestion that the risk for tailoring is attenuated by the numerous preceding examinations, such that any change to their evidence at this stage would compromise their past evidence and their credibility, that presupposes that the officers will be asked the same questions as in the past. The civil pleadings suggest to me that the plaintiff may explore topics not previously explored. As for the suggestion that the defendants would not risk an impeachment to their credibility, given their own admissions to date, their credibility is already an issue for determination. I cannot preclude the possibility that one or more of the defendants, if given they opportunity to be examined separately, may enrich their narrative to date with additional evidence that they may not have felt comfortable to discuss in an earlier examination. They lied in the past. There is nothing to say that they would not try lie again if given the opportunity to watch each other’s evidence and the goal to maintain a common front.

b. Whether it appears the examinations for discovery will cover the same grounds

[19] Given the similar claims against the defendants, the examinations for discovery can be expected to cover the same grounds. Although the different defences between Pinheiro and the other defendant officers may suggest some differences in the defence, I agree with the plaintiff’s submission that a defendant sitting in on the examinations of the co-defendants would be tipped off on the plaintiff’s specific areas of concern, and the strategy his counsel may follow. That would eliminate whatever element of surprise might be left in this case. Simply put, being present at each other’s examination is what will create the circumstances and the opportunity for the subsequent defendants to parrot their answers and seek to maintain a common front.

c. Whether credibility will be a factor or an issue in this case

[20] I agree with the defendants’ submission that credibility in and of itself would not necessitate an exclusion order. However, I am not prepared to agree with the suggestion that the thousands of pages of productions from past examinations will minimize the concern over each defendant’s credibility. I accept instead the plaintiff’s submission that: “the Plaintiff’s recovery of items that were allegedly present in the storage room, and taken by the Defendant Officers, will depend entirely on the credibility of the parties. The parties’ recollections of the incident, corroborated with the surveillance footage showing the conduct by the Defendant Rerrie, will ultimately sway the outcome of the decision with respect to the Plaintiff’s missing items, as well as whether the Defendant Officers had in fact taken the items.”

[21] I also accept the plaintiff’s concern that a defendant’s memory may be distorted when hearing a co-defendant recall events from seven years ago. An exclusion order that allows the defendants’ memories to be tested separately and independently of one another, may enhance their overall credibility, as opposed to leaving some lingering impression that the defendant officers, or at least three of the four may be collaborating on their respective narratives.

d. Whether the co-parties have common interests and the same lawyer represents the co-parties.

[22] There can be no question that the co-parties, and especially the three defendants who are represented by the same counsel have common interests. They have a common interest to resolve the case without being found liable. That probability is enhanced significantly if the evidence they present is consistent and reliable. But that is also the reason to be concerned.

[23] Insofar as the defendants Savino, Rerrie and Muresan suggest that they have common counsel and that this arrangement, in and of itself ought to favour their attendance at each other’s discovery, the concern is valid, because separate examinations would require separate counsel. Simply put, they would have to retain separate counsel for the discoveries, unless they chose to be self-represented.

[24] The plaintiff’s counsel was of the view that the defendant Officers could be represented by the same counsel as long as their counsel were bound by the exclusion and confidentiality order until all of the examinations were completed. Counsel likened the suggested approach to a lawyer’s obligations not to talk to his or her client in the course of their examination. In other words, much like a lawyer cannot talk to his client during his or her examination, in the case of multiple defendants, that lawyer would not be able to talk to any one of them about each other’s evidence until they were all done. Counsel argued that the court could make such an order.

[25] With the greatest respect, the suggested approach would be contrary to the Rules of Professional Conduct of the Law Society of Ontario. As I understand the plaintiff’s reason for an exclusion order, the primary concern rests with the risk that there will be tailoring and parroting by two or more of the defendant witnesses. If, as a result of the exclusion order, the evidence from one defendant were to diverge from the narrative to date such that it impacted the interests of the remaining defendants, the lawyer in attendance with that defendant, would have an obligation to alert the other defendants of a potential change in interests. A confidentiality order that extended to the lawyer’s actions would effectively prevent the lawyer from having any conversation with the other defendants to obtain the appropriate instructions. More seriously, it would place that lawyer in breach of his or her professional obligations. To the extent that there was some surprise by the plaintiff’s counsel that this would be a concern, I find it essential to review the specific Rules.

[26] Beginning with the Rule 3.2-2 of the Law Society of Ontario, “When advising clients, a lawyer shall be honest and candid. Paragraph 1.1 of the commentary to that Rule states: “A lawyer has a duty of candour with the client on matters relevant to the retainer. This arises out of the rules and the lawyer’s fiduciary obligations to the client. The duty of candour requires a lawyer to inform the client of information known to the lawyer that may affect the interest of the client in the matter.” Especially in the event that the lawyer representing the first defendant to be examined learned of new evidence that would impact the interests of one or both of the other two defendants, it would be contrary to the lawyer’s professional obligations to remain silent and not alert the other two clients of that development. But to meet those professional obligations, the lawyer would effectively undermine the purpose of an exclusion order.

[27] Rule 3.4-1 states that “A lawyer shall not act or continue to act for a client where there is a conflict of interest, except as permitted under the rules in this Section”. With respect to joint retainers, Rule 3.4-5 (b) states that no information received in connection with the matter from one client can be treated as confidential so far as any of the others are concerned. Rule 3.4-5 (c) states that “if a conflict develops that cannot be resolved, the lawyer cannot continue to act for both or all of them and may have to withdraw completely.

[28] In light of these Rules, the court could not make an order, as suggested by plaintiff’s counsel that would prohibit the defendants’ counsel from disclosing, directly or indirectly any aspect of the defendants’ examination for discovery until such time as the examinations are completed.

[29] An exclusion order will inevitably require each defendant to have separate counsel for their attendance at their discovery. Although this is a serious consideration that would weigh in favour of the defendants’ request that an exclusion order be denied, the way to manage that concern would be to limit the participation of separate counsel to the attendance on the examinations. The current lawyer of record would undertake the preparation of the defendants up until the “doorstep” of the examinations. Separate counsel would accompany each defendant to their examination and would be there to assist with undertakings, refusals and questions under advisement. They would be briefed to enable the effective assistance of counsel, but that should not be too onerous a cost.

[30] The plaintiff’s strategy to the discoveries and any strategic positioning or surprise is bound to be revealed at the initial round of the discoveries. Depending on how the examinations unfold, having been examined separately, it may be that the original counsel of record could resume his representation of the defendants in the responses to the undertakings and refusals, even though the answers would pertain to each defendant separately. In other words, the defendants would not be responding jointly. That said, if the defendants’ answers to the questions were sufficiently different to require caution, it may be more prudent or expedient for discovery counsel to see the examination to its conclusion. This would be something for the discovery counsel to consider. Certainly, if there were dramatic developments that brought the three defendants into conflict, in keeping with the Rules of Professional Conduct, the original counsel would have no choice but to resign completely from representing all three of the defendants.

[31] A variation to the suggested approach would be for the defendants to be prepared by their counsel and then to attend at their discovery without counsel. There is on obligation that they attend with counsel. I raise this as an option though I make no ruling on whether that would be astute in all the circumstances.

[32] As for the cost of additional counsel, although the defendants would have to carry those costs up front, it would not prevent them from seeking those costs in any event of the cause, if with the benefit of hindsight, it becomes apparent that an exclusion order was not necessary.

[33] I note that the issue of additional counsel is a concern for the three defendant officers. It does not impact Mr. Pinheiro who has separate counsel. In his case, both he and his counsel would be bound by the exclusion order until the conclusion of the first attendance on the examination.

e. Whether there would be prejudice to the excluded party

[34] I fail to see any significant prejudice to the excluded party. After their examination and answers to their undertakings are completed, the defendants would have access to each other’s transcripts. At that point, each will have been exposed to the plaintiff’s strategy to the examinations and there would be no need for the continued exclusion. Moreover, to the extent that counsel and the parties would be interested in the witness’ demeanour and / or reaction to the questions put to them, the parties appeared to agree that the examinations would be videotaped. This would enable counsel and the defendants to review and comment on what they saw. Moreover, they would have ample time to prepare for the next stages of the litigation, be that pre-trial preparations or settlement discussions.

f. Whether the ends of justice require the exclusion

[35] Having regard for the foregoing, the ends of justice favour the making of an exclusion order over the minimal limitations that would be visited on the defendants. The proposed approach to their representation at the discoveries would mitigate significantly their concerns. On the other hand, the defendants’ admissions to having obstructed justice in the past weigh very heavily on the risk that if they might act in concert once again to defeat the plaintiff’s claim. If they were willing to lie in the context of a serious criminal proceeding where their jeopardy of being found guilty of obstruction was high, absent an exclusion order, they may have even fewer concerns about being truthful or obstructing the administration of justice. An exclusion order in the context of a civil suit, may actually work to their benefit, just as much as to the plaintiff. With the benefit of such an order, they may be able to minimize the shadow over their credibility by responding independently and separately to the questions that are put to them.

CONCLUSION

[36] For all of the foregoing reasons, the interests of justice favour the issuing of an exclusion order. The impact that this order will have on the defendants’ representation at the discoveries can be mitigated by limiting the participation of counsel to the examination for discovery. Although no doubt a concern, on the unique facts of this case and the underlying background of how these defendants behaved in the past, the interests of justice will be served best if the defendants are excluded from each other’s examinations.

[37] The terms of the order will be as follows:

a. The Defendants, Damien Savino, Mihai Muresan, Richard Rerrie and Manuel Pinheiro shall be excluded from being present at each other’s examination for discovery; b. The defendants, Damien Savino, Mihai Muresan, Richard Rerrie and Manuel Pinheiro are prohibited from disclosing directly or indirectly, any aspect of their examination for discovery, including but not restricted to the questions asked; their responses; the manner in which the questions were posed; the order of questions or the areas of questioning; and the demeanour of counsel asking the questions to any of the Defendants until such time as the examinations for discovery of each of them has been completed; c. Counsel representing Manuel Pinheiro is similarly prohibited from engaging in the activities noted in relation to his client. d. Counsel of record for the three defendants, Damien Savino, Mihai Muresan, Richard Rerrie, together with his clients must make arrangements for the defendants’ representation, in such a way that counsel preserves the confidentiality requirements outlined in relation to the three defendants but also does not breach the Rules of Professional Conduct of the Law Society of Ontario. e. The exclusion of the defendants will extend until the completion of their examination for discovery, which shall include the initial attendance to be examined, answers to undertakings and refusals as may be orders, and any reattendance that might arise from those answers. f. Provided that the examinations of the defendants is meaningful and is not obstructed by refusals, or no conflict surfaces as among the defendants, counsel of record for the defendants may oversee the answers to undertakings and refusals, and possibly any reattendance. The wisdom of resuming such representation is to be evaluated by the “discovery counsel” for each defendant.

[38] Insofar as costs are concerned, having considered the submissions of counsel and reviewed the bills of cost filed, I fix them in favour of the plaintiff in the sum of $5000, inclusive of disbursements and applicable taxes. Such costs are to be shared jointly and severally by the four defendants.

Tzimas J. DATE: May 12, 2023