Court File and Parties
COURT FILE NO.: CR-21-1278 DATE: 20231010 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – SIMON BRIDLE Defendant/Applicant
Counsel: Daniel Galluzzo, for the Crown Claudia Brabazon, for the Ontario Provincial Police M. Danielle Cunningham, for the Defendant/Applicant
HEARD: September 15, 2023
RESTRICTION ON PUBLICATION Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this decision as the complainant may not be published, broadcast or transmitted in any manner.
REASONS FOR DECISION – Third party records (O’Connor) Application
1The Applicant is charged with obtaining sexual services for consideration from the Complainant, L.J., between September 1, 2018 and September 30, 2020, contrary to s. 286.1 of the Criminal Code.
2In the present application, the Applicant seeks an order granting production of records held by Detective Inspector (DI) Patton of the Ontario Provincial Police or their telecommunications service providers relating to communications made and/or received by DI Patton in relation to the Applicant between December 15, 2022 and January 27, 2023.
3All parties agree that this is an O’Connor Application for third party records.
Background
4The Applicant previously brought two pre-trial applications that were heard and decided by de Sa J. in January/February 2023.
5The first application related to the exclusion of text messages and identification evidence: R. v. Bridle, 2023 ONSC 1259. In that application, the Applicant took the position that:
a) Screen shots of the Applicant’s text messages taken from the Complainant’s i-Phone were inadmissible. The Applicant submitted that by photographing the text messages without prior judicial authorization, or without the consent of the Applicant, the police obtained the evidence in violation of the Applicant’s s. 8 Charter rights and that the texts be excluded at trial.
b) The showing of a single photograph and otherwise failing to engage in a standard “photo line-up” served to permanently taint the value of any identification evidence the Complainant might have to offer.
6With regard to the text messages, the issue before de Sa J. was whether the police required a warrant before they could search L.J.’s phone and acquire screen shots of the Applicant’s text messages to L.J. when L.J. voluntarily gave her phone to the police for that purpose.
7The second application related to sections 276 and 278.3 of the Criminal Code: R. v. Bridle, 2023 ONSC 1260. This second application is not related to the issues raised in the present application.
8Both applications were dismissed by de Sa J. in written Reasons released on February 22, 2023.
9With respect to the text messages, de Sa J. held that there was no breach of Charter s. 8 because the police did not require a warrant. He stated, at para. 82:
In this case, the police merely took photos of the texts referenced by L.J. that she was a party to. There was no evidence of any pressure placed on L.J. Rather, in the context of the interview, L.J. voluntarily shared her texts with a view to providing dates and further information related to her relationship with the Applicant.
10With respect to the identification evidence, de Sa J. found (at para. 101) that the Complainant had known the Applicant between 2018 and 2020 and had met him on multiple occasions. As such, the Complainant could readily recognize the Applicant from a single photograph. Accordingly, the Complainant’s evidence was not so tainted as to warrant its exclusion (at para. 110).
11This present application relates to the evidence given by one of the police witnesses, DI Patton, in relation to the admissibility of the text messages.
12DI Patton was the officer who directed the investigating officers to interview the Complainant about a client named “Chris” who the Complainant saw on September 3, 2020. “Chris” was later identified as the Applicant.
13DI Patton’s involvement in directing the investigation in September 2020 was summarized by de Sa J. at paras. 15 – 17 of his Reasons for Decision:
At the direction of the Detective Staff Sergeant [1] (DSS) Patton, Detective Sergeant Kouri and Detective Span were tasked to interview L.J. about a client named “Chris” that she saw on September 3, 2020.
DSS Patton requested that the officers obtain the “context” surrounding the meeting and to ask about her relationship with “Chris”. More specifically, the officers were tasked to inquire about:
a) Whether she provided sexual services to “Chris”?
b) What acts? Did he pay?
c) How much?
d) How often had she serviced him in the past? Regular?
e) Did he indicate or does she know what is his job?
If possible, DSS Patton requested an audio recording to be made of the interview. A video statement was not required.
14DI Patton had no interaction with the Complainant and was not present at the interview of the Complainant.
15DI Patton’s evidence was, at best, of only marginal relevance to de Sa J.’s analysis and conclusions. de Sa J.’s analysis was primarily a legal analysis on the basis of undisputed facts and turned on his interpretation of various judicial decisions. Nothing in de Sa J.’s decision that the police did not require a warrant to take screen shots of the text messages on the Complaint’s i-Phone, or that the Complainant’s identification evidence was admissible, turned on any of DI Patton’s evidence.
Position of the Applicant
16The Applicant confirms that he is not, in this application, challenging or asking me to reconsider the decision of de Sa J. with respect to the admissibility of the text messages. That decision is not reviewable by another Superior Court judge and is not subject to an interlocutory appeal in any event.
17Indeed, this pre-trial application would have proceeded before de Sa J., except that a scheduling conflict prevented his being able to hear the application in a timely manner.
18The Applicant seeks third party disclosure because he alleges that DI Patton engaged in “improper preparation” and “improper communication with persons unknown” for her participation in the applications before de Sa J. because DI Patton “apparently” had “knowledge of said motions, the issues therein, and the order in which the motions were being argued”. He alleges that “there is no other reasonable explanation for the Detective Inspector’s surprisingly accurate preparation, other than having engaged in improper preparation with unknown parties”.
19The Applicant advises that if there is evidence that DI Patton did engage in “improper preparation” and “improper communication”, it is his intention to bring a motion for a mistrial.
20The Applicant confirmed that in making this allegation he is not alleging that the “unknown parties” were the Crown Attorney involved in the case. The Applicant acknowledges that it is not improper for the Crown Attorney to tell DI Patton what the issues were before she testified. The Applicant acknowledges that the Crown Attorney was permitted to discuss the pre-trial motions with DI Patton and to inform DI Patton of the motions that were being argued and the issues she would be asked to address when she testified before de Sa J. The Applicant concedes that the Crown Attorney was permitted to share the Notice of Application and even the Applicant’s factum with DI Patton, although DI Patton testified that she did not see the Notice of Application or the factum before she testified.
21The Applicant acknowledges that if the information provided to DI Patton (“knowledge of said motions, the issues therein, and the order in which the motions were being argued”) came from the Crown Attorney, there was nothing improper about DI Patton’s preparation for the motion. The Courts have recognized that Crown counsel’s preparation of witnesses for trial – including police witnesses – “is not only appropriate but also necessary for the efficient administration of justice and the truth finding process”: R. v. Trought, 2019 ONSC 1421, at paras. 18 and 19:
There are many areas that the Crown counsel might choose and need to prepare the police witnesses for the Charter Applications and trial including: a review of all preliminary hearing evidence; their notes; all disclosure; review any subsequent investigation; and review issues and facts relevant to the Charter Applications.
22See also: R. v. Mahmood, 2011 ONCA 693, at para. 63 and R. v. Browne, 2017 ONSC 5058, [2016] O.J. No. 7175, at para. 12:
Preparation of any witness is an essential means of readying Crown counsel and that witness for adversarial testing. I consider preparation of witnesses a duty that is imposed on Crown counsel in order to present all available legal proof of the facts.
Facts
23The Applicant’s suspicion of “improper preparation” by DI Patton is based on the following chronology, which I have copied from the Applicant’s factum:
- In anticipation of the trial of this matter, at the Judicial pretrial held October 18, 2021, the Applicant identified multiple pretrial Motions, which he intended to argue in relation to evidence being brought against him.
- Further to the Judicial pretrial, the Applicant narrowed his list of anticipated pretrial motions, and gave notice of same to the assigned Assistant Crown Attorney.
- In furtherance of narrowing issues, the Applicant again culled his anticipated motions to three (3), namely, a Section 276 /278.3 motion and two (2) exclusionary motions.
- Notice of those motions were served on the Assistant Crown Attorney on December 15, 2022, with the Application facta being served on December 29, 2022.
- Pursuant to the Applicant’s Notices, the pretrial motions began on January 16, 2023 and ran consecutively, in a blended fashion, thereafter. The Court heard from the anticipated witnesses, namely, Detective Constable Span, Detective Sergeant Kouri and Detective Inspector Patton, in this order.
- On Tuesday, January 17, 2023, prior to the hearing of Detective Inspector Patton’s evidence, the Crown informed the Applicant, through Counsel, that the Detective Inspector wished to have with her, during her testimony, to assist her, notes and caselaw which, as was purported, she had prepared.
- Given the irregular nature of this request, the Assistant Crown Attorney partially disclosed the requested documents, and the parties sought guidance and direction from the Court.
- The matter was adjourned overnight to permit the Assistant Crown Attorney an opportunity to determine his disclosure obligations.
- Upon returning on Wednesday, January 18, 2023, the next day, a redacted version of the complete document set was disclosed to the Applicant, and the Court proceeded to hear the evidence of Detective Inspector Patton. Before closing cross-examination, the matter was adjourned overnight to consider whether there were any further questions for the witness.
- Upon resuming the next day, the Applicant, through counsel, suggested that the Detective Inspector had engaged in improper preparation for these particular motions, by apparently having foreknowledge of said motions, the issues therein, and the order in which the motions were being argued.
- The Applicant, through Counsel, suggested that there was no other reasonable explanation for the Detective Inspector’s surprisingly accurate preparation, other than having engaged in improper preparation with unknown parties.
- Detective Inspector Patton denied having engaged in improper preparation, but there remains no alternate explanation that survives scrutiny.
24The chronology is accurate as far as it goes but leave out the important fact that DI Patton had a preparation meeting with the Crown Attorney responsible for the case on January 12, 2023. Given that DI Patton had a preparation meeting with the Crown on January 12, 2023, it would be surprising if she did not have “knowledge of said motions” and “the issues therein”.
25DI Patton’s notes were made exhibits to the pre-trial application before de Sa J.
26The first exhibit is entitled “Issues of Possible Inquiry” and sets out two general headings followed by a number of bullet points:
a) Under the heading “Direction to show photo of “Chris” to [L].J.”, DI Patton listed six bullet points that summarized her proposed evidence.
b) Under the heading “[L.]J. provided Consent to capture screen shots of text messages on [L.]J’s phone between her and ‘Chris’”, DI Patton listed four bullet points which summarized her understanding of why it was not necessary to obtain a warrant in these circumstances.
27This document was prepared by DI Patton on January 16, 2023. She referred to it as “mind-mapping” and testified that she prepared it in her hotel room the night before she was supposed to testify “to prepare myself as best as possible so that I’m able to answer questions to the best of my ability”. DI Patton denied communicating with any other witnesses about their evidence.
28There is, in my view, nothing improper about DI Patton making this note prior to testifying in Court. If anything, it resembles the kind of “will-say” that witnesses are routinely asked to prepare before they testify.
29The second exhibit is entitled “Current Case Law – Consent for Cell Phone”, It is one and one-half pages, and quotes or contains a few bullet points in relation to five recent cases dealing with police search of cell phones.
30In her testimony, DI Patton explained that the list of cases came from her consultation meeting on January 16, 2023 with a different Crown on an unrelated investigation with similar issues (consent searches of cell phones). At the end of that meeting, DI Patton told the other Crown Attorney that she would be testifying later that week and expected to be asked some of the same questions. She asked the Crown Attorney to email the cases he had mentioned. The other Crown Attorney was the source of this document.
31There is nothing “surprisingly accurate” about the information contained in either exhibit 1 or 2. If DI Patton knew nothing more than the reason for her being called to testify at the pre-trial application – to address the decision not to obtain a warrant for the i-Phone search and the photo-identification evidence – she could have easily scribbled the bullet points set out under the heading “Issues of Possible Inquiry”.
32Defence counsel devoted a significant portion of his cross-examination of DI Patton questioning her knowledge and interpretation of s. 8 case law. de Sa J. was of the view that DI Patton’s notes were a “red herring”. He said to Defence Counsel (after the witness was excused):
She didn’t see the need for a warrant, …and I think what’s material is what she was thinking at the time as opposed to now. I mean this … is a bit of a red herring now … I think we have to go, you know, to the time in which she was directing the investigation. I mean I think it should be noted that it’s questionable whether she knew that they were going to photograph texts so it’s Officer Span that made the decision to photograph the text independent of any instruction.
It’s not something she’s done that’s improper in the sense that we always come in contact with information along the way. I think she would have received this a week ago or a month ago and it would still factor into the way she thinks about the issue today but what’s important is back then. So as long as we focus on what’s back then and I’m aware of the fact that she’s got this information that may be somewhat influencing the way she sees it now, I mean we don’t have to kind of belabour the point, but I’ll leave it to counsel.
Third Party Record (O’Connor) Applications
33The production of third party records is governed by the two stage test established by the Supreme Court of Canada in R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411. Under step 1 the applicant holds the burden of establishing that the information in question is “likely to be relevant”. If the applicant is successful, the materials are produced to the court for inspection under step 2, and the court examines the records to determine if and to what extent the records are truly relevant to the proceedings. At the second stage the court must examine and weigh the salutary and deleterious effects of a production order considering the various factors set out in O’Connor, at para. 31.
34We are now at stage 1. The onus is on the Applicant to establish the likely relevance of the production being sought. It must be relevant to an issue at trial and relevance cannot be based on speculative assertions.
35The “likely relevance” threshold requires “that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”: R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411, at para. 22:
In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. When we speak of relevance to “an issue at trial”, we are referring not only to evidence that may be probative to the material issues in the case (i.e. the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case.
36See also: R. v. Jackson, 2015 ONCA 832, at para. 127:
The standard “likely relevant” imposes a significant, but not an onerous, burden on an applicant... This threshold plays a meaningful role in screening applications to prevent the defence from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming requests for production.
37The test for “likely relevance” will not be satisfied on a mere assertion that the record is relevant to credibility “at large”. The Applicant must provide some basis to show that the records will relate to “a particular issue at trial”. (O’Connor, at para. 142).
Analysis
38The Applicant takes the position that the documents sought may have the ability to impact on the credibility/reliability of the witness DI Patton and relate to the issue of “trial fairness”.
39In my view, the records sought are not relevant to any issue in the trial for the following reasons.
40First, DI Patton is not anticipated to be a witness at the trial. Her evidence was, as indicated above, relevant only to the pre-trial application brought by the Applicant, and even then, of only marginal relevance. Given de Sa J.’s conclusion that the police did not require a warrant to take screen shots of the text messages on the Complainant’s i-Phone, DI Patton’s legal understanding of Charter s. 8 – either in September 2020 when the investigation was conducted or in January 2023 when DI Patton testified - is entirely irrelevant to any issue going forward.
41As indicated above, de Sa J.’s analysis was primarily a legal analysis on the basis of undisputed facts and turned on his interpretation of various judicial decisions. Nothing in de Sa J.’s decision turned on any of DI Patton’s evidence. DI Patton’s credibility was not relevant to de Sa J.’s decision; it is difficult to see how her credibility could possibly be relevant to any issue that may arise in the trial given that she will not be a witness.
42Moreover, the Applicant acknowledges that he is not, in this application, challenging or asking me to reconsider de Sa J.’s decisions on the pre-trial applications. As such, DI Patton’s reliability and credibility are not live issues or probative of any issue that may arise at trial.
43The Applicant also argues that the documents are likely relevant to the issue of “trial fairness”. But, like “credibility”, the mere assertion that a document is relevant to the generic issue of trial fairness “at large” will not suffice to meet the test of relevance. The record must be relevant to a particular, material issue at trial.
44In addition, the Applicant’s position is based on speculative assertions.
45Defence counsel asserts that DI Patton’s information about the issues on the pre-trial application could not have come from the Crown Attorney at the preparation meeting of January 12, 2023. To support this counter-intuitive contention, Defence counsel argues that DI Patton had numerous opportunities during her lengthy cross-examination to explain that her information about the issues on the motion came from the Crown Attorney, but that DI Patton never referred to her preparation with the Crown.
46Defence counsel also argues that, when given the opportunity to identify the individuals with whom she had engaged in any preparation for the application, DI Patton asked to speak to a lawyer to “understand what [her] jeopardy is”. This, she argues, indicates consciousness of improper conduct on the part of DI Patton.
47A review of the transcript of the cross-examination does not support either of these assertions.
48Counsel for the Defence put the following question to DI Patton:
Your evidence is that you were not party to the judicial pretrial, you were not - you did not receive a copy of the application, you didn’t receive a copy of the factums, you haven’t spoken to anybody and yet somehow you knew – I’m going to suggest you that you knew because you were told, you agree with that suggestion?
49DI Patton responded by referring to her January 12, 2023 preparation meeting with the Crown:
When I was in preparation with the Crown, I told him I anticipated that I’d be asked certain things, that those were probably the areas that I would be focusing on, that I would expect I would be asked. His answer was prepare, review, whatever you need to...
50At that point DI Patton was cut off by Defence counsel and told not to tell the Court what she had discussed with the Crown Attorney because it was privileged. Defence Counsel stated:
Wait, I’m going to stop you, I’m going to stop you here because the subject that you, the subject you discussed with the Crown are, that’s something that are privileged and are not something that’s to be disclosed in court.
51Defence counsel’s assertion that DI Patton could not disclose in court what she had discussed with the Crown is not correct. While some of what DI Patton discussed with the Crown might be privileged in certain circumstances, the Crown Attorney is not the lawyer for the police, and DI Patton’s discussions with the Crown Attorney are not subject to solicitor-client privilege.
52In any event, having stopped DI Patton from testifying about her discussions with the Crown Attorney, Defence counsel cannot now come to court and complain that DI Patton did not tell her about what was discussed at the January 12, 2023 preparation meeting with the Crown Attorney.
53Immediately after telling DI Patton that she could not disclose in court what she had discussed with the Crown Attorney, Defence counsel ended the cross-examination of DI Patton with the following exchange:
Q. Detective Inspector Patton, this is your opportunity, 28 years of service, would you like to tell the court who told you about the issues being argued this week at these motions or would you like to speak with a lawyer?
A. Well I guess I’d like to speak with a lawyer because I don’t know, I don’t understand my jeopardy, I’ve answered, I’m happy to go through my points and help to explain why I would think those individual points based on my experience, but I, I’ve never been asked that I - obviously I’m concerned because I just don’t anticipate what’s next and I don’t know I don’t understand what my jeopardy is so yes I guess I would.
Q. Your honor that completes my cross examination…
54In my view, the form of this question was improper. Asking DI Patton if she wanted to speak to a lawyer before answering was an implied threat that there could be legal consequences or jeopardy to DI Patton if she answered truthfully. This was improper. Moreover, a witness being cross-examined has no right to consult a lawyer before answering a question. The question was designed to intimidate the witness and leave her with the false impression that she should not answer until she had spoken with a lawyer.
55In any event, having just told DI Patton that she could not disclose in court her discussions with the Crown Attorney, and having given DI Patton the option of speaking to a lawyer before answering the question of who she spoke to, Defence counsel cannot now ask the court to draw an adverse inference against DI Patton for choosing the option that Defence counsel had no right to offer.
56The Applicant also argues DI Patton did not display any outrage when she was questioned about “improper preparation” or potential misconduct. The Applicant argues that the Court should infer from this “lack of outrage” that DI Patton must have acted improperly.
57I reject this argument for two reasons. Firstly, I was not the judge at the motion and I was not able to observe the witness’ demeanour. I do not know whether her tone or expression displayed any level of indignation at the questions asked.
58Certainly, there is nothing in the transcript that would suggest “outrage” at the questions, although there are several instances where the witness is clearly confused by the questions. But it was up to de Sa J. to assess the witness’ demeanour if he thought it relevant to his decision. Clearly, he did not.
59More importantly, even if I were to accept counsel’s description of the witness’ demeanour, there is simply no correlation between displays of outrage or indignation and truthfulness. Quite the opposite. Often, the biggest liars display or express the greatest outrage or offence when their integrity is challenged, in the hope that their performance will mask their dishonesty. Shakespeare recognized this when he penned the oft-quoted line in Hamlet: “The lady doth protest too much, methinks”.
60Witnesses are often directed to just answer the questions asked. Giving testimony is not a theatrical performance, and I would not draw an adverse inference against a witness because they answered the questions asked without dramatic effect.
Conclusion
61For the foregoing reasons, the Application is dismissed at Stage 1, and it is not necessary to proceed to Stage 2.
Justice R.E. Charney
Released: October 10, 2023
ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – SIMON BRIDLE Defendant/Applicant REASONS FOR DECISION – Third party records (O’Connor) Application Justice R.E. Charney
Released: October 10, 2023
1At the time of the investigation in September 2020, DI Patton was a Detective Staff Sergeant.