Court File and Parties

Court File No.: CR-22-57 Date: 2023/11/22 Court: Superior Court of Justice – Ontario

Between: His Majesty The King – and – Anthony Edwards, Defendant

Counsel: J. Piszczek, for the Federal Crown M. Mazursky, for the Provincial Crown G. Clark, for the Defendant

Heard: November 20, 2023

Reasons for Decision on Application

Ellies R.S.J.

[1] The accused is charged with a number of offences, including possession of a loaded handgun and possession of fentanyl for the purpose of trafficking. The charges were laid after a search warrant was executed at a residence on Arthur Street in Sturgeon Falls on March 30, 2021. The Crown alleges that the accused was the occupant of a back bedroom at the residence at the time and that he had a Glock 9mm handgun in his jacket and drugs in a plastic bag on a night table beside a bed in the room.

[2] His trial was to begin on November 20, 2023.

[3] However, very recently, the accused asked the Crown to produce occurrence reports relating to the Arthur Street residence, another residence on Railway Street in Sturgeon Falls, and to three individuals. The premises on Arthur Street and Railway Street are occupied by Cassandra Puskas and Sean Collins, respectively. Collins and Puskas share a child together and it is alleged that Collins was a frequent visitor to the Arthur Street residence. I understand that Puskas may be called by the Crown to testify at trial to deny that the items found were hers and to give direct evidence that they were those of the accused. Collins is not likely to be called because there is an outstanding bench warrant for his arrest and he has not yet been located.

[4] The accused seeks occurrence reports related to any search, whether or not authorized by a warrant, at either the Arthur Street or Railway Street premises after the March 30, 2021, warrant was executed. He also seeks occurrence reports about any charges laid against Puskas or Collins after that date.

[5] The third individual with respect to whom the accused seeks occurrence reports is one Tyrone Lothian. A wallet containing Lothian’s identification was found during the March 2021 search of the Arthur Street residence. The defence seeks occurrence reports relating to an incident which occurred in April 2021 in which Lothian was alleged to have brandished a gun at police officers before being arrested in the Parry Sound district and charged with a raft of offences, including firearms and drug offences.

[6] The accused’s application for disclosure is supported by copies of news articles obtained from very recent Internet searches that include articles reporting on Lothian’s arrest and on searches taking place in July 2021 and January 2022 of the Arthur Street and Railway Street properties that led to charges including drug offences against Puskas and Collins, respectively.

[7] On behalf of Mr. Edwards, Mr. Clark relies on the decision of the Ontario Court of Appeal in R. v. Pascal, 2020 ONCA 287, in which the Court held that the police have an obligation to disclose to the Crown, and the Crown has an obligation to disclose to the defence, information about the criminal record and outstanding charges relating to potential witnesses for the Crown or the accused.

[8] The Crown opposes the defence request for five main reasons.

[9] As the request relates to Collins and Puskas, the Crown submits that the defence request is nothing but a fishing expedition embarked upon at the last minute that will serve only to delay the trial.

[10] As the request relates to Lothian, the Crown submits that Pascal is inapplicable as Lothian was never going to be a witness for the Crown and will not be a witness for the defence. The Crown submits that, instead, the accused’s request as it relates to Lothian is really based on Lothian as an alternate suspect. It submits that the accused ought to have brought a proper application seeking leave to pursue such a defence, which it has not done.

[11] The Crown further submits that, even if a proper alternate suspect application had been brought, the defence has failed to establish the necessary connection required, namely that a jury, properly instructed, could acquit the accused based on the defence: R. v. Grandinetti, 2005 SCC 5, at para. 48.

[12] Finally, the Crown submits that, even if the defence should be permitted to pursue an alternate suspect defence, the requested disclosure relating to Lothian is a third party, and not a first party, request for disclosure that ought to have been brought pursuant to the decision in R. v. O’Connor, [1995] 4 S.C.R. 411, and not the decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326.

[13] I am able to accept only one of the Crown’s submissions.

[14] As the request relates to Collins and Puskas, the occurrence reports should have been disclosed by the Crown in the first instance. This was the ruling in Pascal. As Watt J.A. explained on behalf of the Court of Appeal in Pascal, the Crown is obliged to disclose not only the fruits of the investigation into the charges faced by an accused before the court, but also any additional information that is “obviously relevant”: Pascal, at para. 106; citing R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35. As Watt J.A. also explained at para. 110:

As a general rule, the mere fact that a witness is charged with an offence cannot degrade the witness’ character or impair their credibility. Generally this rule would mean that a witness could not be cross-examined about whether they were then charged with a criminal offence. But this rule gives way and permits cross-examination for the purpose of showing that the witness has a possible motivation to seek favour with the prosecution. A circumstance that may permit cross-examination on the fact of outstanding charges arises when the same police service that laid the charges outstanding against the witness also laid the charges against the accused about which the witness testifies for the Crown. [Citations omitted.]

[15] The Crown submits that, although the decision in Pascal may apply to Puskas, it does not apply to Collins, as Collins is missing and the Crown, therefore, has no intention of calling him as a witness. However, I agree with the accused that the situation could change quite quickly, especially if the accused is able during the course of the Crown’s case to make it appear as though some or all of the items allegedly in the possession of the accused might actually belong to Collins.

[16] In any event, it is clear that the Crown once did intend to call Collins as a witness. In June 2023, Collins swore a statutory declaration for the Crown in relation to an application brought by the accused seeking to challenge the search warrant that was the basis for the March 2021 search. The Crown was obliged, therefore, to provide the defence with the information now sought and the Crown ought not to be able to resile from that obligation just because it failed to do so earlier and cannot presently locate Collins.

[17] The situation is different with Lothian, however. There is no indication that the Crown was ever going to call Lothian as a witness. The accused has not indicated that he wishes to do so, and I can see no reason why he would. Therefore, I cannot see how Pascal requires the Crown to produce the information now requested by the defence about Lothian. For that reason, I agree with the Crown that the information is only relevant as alternate suspect evidence given that Logan will not be a witness. However, I disagree with the Crown that the accused has failed to establish an air of reality to the alternate suspect defence or that what is sought is really third party disclosure.

[18] The accused has demonstrated that, contrary to the submissions of the Crown, there is evidence that Lothian occupied the back bedroom. In particular, in order to obtain a warrant to search what the Crown alleges is the accused’s cell phone, a police officer swore that a wallet containing identification belonging to Lothian was found in the bedroom the Crown alleges was occupied by the accused. While I accept the Crown’s submission that other evidence may point more strongly to the accused as the one who possessed the drugs and/or the gun in question, the test at this stage is likely relevance, not likely success: Pascal at para. 130.

[19] In my view, the occurrence reports sought by the accused relating to Lothian are likely relevant given that the news accounts alleged that he was in possession of a gun and drugs, the same items that form the subject matter of the present proceedings, and that a wallet containing Lothian’s identification was at least found in the Arthur Street residence, if not in the very room in which the Crown alleges the drugs in question were found and from which the gun in question was being removed.

[20] Finally, I do not agree that the accused’s request for occurrence reports relating to Lothian’s arrest in April 2021 ought to have been brought under O’Connor, although I would agree that it is a close call. In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, the Supreme Court articulated the distinction between first party and third party disclosure in the context of a request by the accused for disciplinary and criminal investigation records relating to an officer who was involved in the investigation of the charges against him. The court held that, where the Crown is made aware of information that is “obviously relevant” to an accused’s case that the Crown can obtain upon request, the Crown should produce it as first party disclosure notwithstanding the fact that the information does not form part of the fruits of the investigation: McNeil, at para. 59. Such information will be relevant, for example, in cross-examining investigators about “pursuing other avenues of investigation: McNeil, at para. 44.

[21] In a case such as this one, where the question of possession of an item or items arises in the context of the search of premises which the evidence indicates was occupied by more than one person, I believe that information about similar illegal activities on the part of occupants other than the accused is obviously relevant. Therefore, it should have been disclosed by the Crown upon request by the accused.

[22] For these reasons, I have ordered that the Crown disclose as quickly as is reasonably practicable the following:

1. Occurrence reports relating to any searches, with or without a warrant, conducted of the premises located at either 284 Arthur Street or 234 Railway Street, Sturgeon Falls, after March 30, 2021.
2. Occurrence reports relating to any charges laid against Cassandra Louise Puskas or Sean Paul Bernard Collins after March 30, 2021.
3. Occurrence reports relating to the incidents involving Tyrone Lothian occurring on or about April 20, 2021, in which he is alleged to have brandished a gun at police while being arrested and was later charged with firearms and drug offences.

[23] This matter will be addressed again before me at 10:00 a.m. on November 23, 2023, at which time I am hoping to obtain information from the Crown as to how long it believes it will take to disclose the occurrence reports in question.

[24] Because this matter cannot now be concluded this week, the matter is adjourned to be tried at the sittings commencing on January 15, 2024, subject to the availability of Mr. Clark. If the matter cannot be reached during those sittings, the matter will be tried during the sittings to be held on May 21, 2024.

M.G. Ellies R.S.J. Released: November 22, 2023