R. v. Bailey, 2023 ONSC 7113 — Superior Court of Justice | minicounsel

COURT FILES NO.: CR 23-665, 23-679

DATE: 2023-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

GEORGE BAILEY

Applicant

S. Doherty, on behalf of the Crown

M. McRae, for the Applicant

M. Visentini, for the Hamilton Police Service, Third Party

HEARD: December 11, 2023

a.j. goodman J.:

THIS RULING IS SUBJECT TO A BAN ON PUBLICATION pursuant to s. 648(1) of the criminal code of canada AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL a further order of this court allows.

RULING ON PRODUCTION OF FIRST/THIRD PARTY RECORDS

[1] The applicant is facing several charges including two counts of possession of a Schedule 1 substance for the purposes of trafficking (fentanyl and cocaine), possession of proceeds of crime, possession of a firearm and various other related firearms charges, contrary to their respective provisions in the Controlled Drugs and Substances Act, S.C. 1996, c.19 and the Criminal Code, R.S.C. 1985, c. C-46.

[2] The applicant brings this application for production of notes and other materials related to all prior traffic stops conducted by Constables Contos (“Contos”) and Malstrom (“Malstrom”) of the Hamilton Police Service (“HPS”). Specifically, for the offence of using a handheld device that is placed securely in or mounted to a motor vehicle, including; any and all officer notes, will says, occurrence reports, ICAD reports and dispatch recordings, Provincial Offences Notices; and the police training/drug manual in relation to cannabis consumption, detection, traffic stops and search powers under the Cannabis Control Act, S.O. 2017, c. 26, Sched.1. (“CCA”).

[3] The applicant intends to challenge the lawfulness of the detention, search, and arrest in a Charter application scheduled to be heard in February 2024. This includes a challenge to the constitutional validity of s. 78.1 of the Highway Traffic Act, R.S.O. 1990, c. H-8 (HTA”) for contravening ss. 7 & 9 of the Charter. The applicant takes the position that s. 78.1 disproportionately impacts marginalized individuals including impoverished persons and specifically persons of color. This legislation results in a disproportionate impact on marginalized communities that is not rationally connected to its legislative objective – traffic safety.

[4] The applicant further intends to challenge the constitutionality of s. 12 of the CCA that authorized the search of his person. The cannabis stored inside the applicant’s vehicle was not in a consumable format. Because there was no risk of the cannabis being consumed in its current format it ought not to have authorized police to search the applicant and his vehicle.

[5] Near the conclusion of oral submissions, I determined that the production of the impugned records did not fall under the Crown’s “first party” Stinchcombe obligations.

[6] There is no dispute that the documents sought are "records". Responding to a subpoena, Mr. Visentini for the HPS tendered certain records, pending argument and my determination of the merits of this application. At this stage, I have not reviewed the documents.

Background:

[7] Malstrom and Contos were on uniform patrol together on December 29, 2021. Their shift commenced at 7:00 a.m. The applicant was their first traffic stop of the day at approximately 5:15 p.m.

[8] The officers parked next to the applicant’s motor vehicle stopped at a red light at the intersection of Catherine and Wilson Street in Hamilton. Both officers testified that they observed the applicant’s hand touch the screen of a handheld device affixed to his dash while stopped at the red light. Both officers agreed that they didn’t see the applicant using the device while the vehicle was in motion or observe any bad driving conduct. Both officers denied identifying the applicant as a Black man before stopping his vehicle.

[9] The officers exercised their discretion to detain the applicant for using a hand-held communication device affixed to his dash while operating a motor vehicle contrary to s. 78.1 of the HTA. Both officers detected an odor of cannabis and once queried the applicant produced a sandwich style bag containing fresh marijuana from the center console. The officers exercised their discretion to search the applicant and the motor vehicle.

[10] The applicant was removed from the motor vehicle, and searched pursuant to s. 12 of the CCA. During this search, the officers found that the applicant was in possession of a loaded Glock handgun on his right hip, and bag of cocaine and fentanyl in his front sweater pocket. The drugs were separated into seven packages. Malstrom also found a functioning digital scale in a backpack located on the from passenger seat. Further, Contos located a $725.00 in the applicant’s right pocket.

[11] Malstrom testified at the preliminary hearing that he had detained drivers before for using a handheld device affixed to their dash while operating their motor vehicle. He had not always ticketed those drivers but on some occasions he had. In circumstances where he had ticketed them there would be a record of it and he would have duty book notes relating to the stop. Those records may or may not include the detainee’s skin color. Malstrom couldn’t recall whether everyone he had ticketed for that behavior was black. He also couldn’t recall when he had decided to ticket the applicant.

[12] Malstrom testified that he was unable to distinguish between the odor of fresh cannabis and burnt cannabis. He could not recall whether he had participated in a controlled burn during his police training. He had no concerns that the applicant was impaired. He testified that he was familiar with the circumstances in which an individual could transport cannabis inside a motor vehicle. He agreed that the cannabis the applicant removed from the center console was not in a consumable format. He believed that he had authority to search the vehicle and the applicant based on the odor of cannabis.

[13] Contos testified at the preliminary hearing that he had no idea how many drivers he had detained for using handheld devices affixed to their dash. He confirmed that he had detained drivers for that purpose. There would be a record of those detentions when he ticketed people and sometimes there would be a record when he didn’t. Contos denied that all of the people he detained for that purpose were black. He couldn’t say whether the majority of people stopped and ticketed were black.

[14] Contos testified that he detected an odor of fresh cannabis coming from the vehicle. He had participated in a controlled burn and received training on odor detection. No burnt odor was detected and he had no concerns that the applicant was impaired. He was not aware of all of the circumstances in which someone could operate a motor vehicle with cannabis inside. He agreed that he had received training in that regard but could not recall all of the exceptions to the prohibition against carrying cannabis inside a motor vehicle. He agreed that the cannabis that was removed from the center console would require some device to be consumed and conceded that it could not be smoked in its immediate format.

Positions of the Parties:

[15] At the outset, the applicant argued that the productions sought in this case fall under first party disclosure. In the alternative, the applicant submitted that these materials are disclosable under the third party regime and are relevant to a myriad of issues at trial.

[16] The applicant contends that the requested records meet the “likely relevance” threshold in support of the anticipated Charter challenge related to an area of search and seizure law that is developing to meet s. 24(2) and the constitutional challenge. The records could demonstrate a propensity to detain persons of color for that purpose – supporting the applicant’s theory that this detention was the product of racial profiling. It could demonstrate that the officers only detained or ticketed people for that offence when they also elected to lay criminal charges – supporting the applicant’s theory that this was a pretextual stop and it could demonstrate that the officers had never detained or ticketed anyone for that purpose. Thus, it could contradict the officers’ testimony at the preliminary hearing, undermining their credibility and sustaining the defence theory that this was a pretextual stop. As such, the applicant says that there is a reasonable possibility that the disclosure pertaining to the officers’ prior traffic stops is logically probative to the applicant’s anticipated Charter applications and at trial.

[17] In sum, production of the requested materials will permit the accused to make full answer and defence, and production is consistent with the truth-seeking process underpinning the disclosure regime.

[18] The Crown and counsel for the HPS oppose the release of the records claiming that the applicant has not met the threshold test of likely relevance and has not substantiated his application in accordance with the well-established legal principles. Further, The Crown contends that this application is premature until a Charter violation has been found - the good faith of the officers becomes relevant only on a s. 24(2) Charter analysis.

Legal Principles:

[19] The constitutional validity of the relevant provisions of the Code was upheld by the Supreme Court of Canada in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, (1999) 139 C.C.C. (3d) 321 (S.C.C.). The statutory provisions themselves were enacted by Parliament following the decision of the Supreme Court of Canada in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. In R. v. Batte (2000), 2000 CanLII 5750 (ON CA), 133 O.A.C. 3, (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449, the Court of Appeal for Ontario considered the import of the provisions, and the appropriate tests to be considered by a trial judge in determining whether documents should be ordered to be produced.

[20] It is clear that there is no duty on third parties whose records are not part of a criminal investigation to disclose them to an accused. Where there exists a reasonable expectation of privacy in the sought-after records, there exists competing constitutional rights – an accused’s s.7 Charter right to a fair trial including the right to make full answer and defence, and, a third party’s right to privacy protected by the same constitutional regime. Although the court’s obligation is to balance those rights within the factual context of a specific prosecution, fair trial interests may require intrusion upon privacy. In R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at para. 94, the Supreme Court held:

In summary, the following broad considerations apply to the definition of the rights at stake in this appeal. The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in the private records of complainants and witnesses. Rather, the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses. It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.

[21] The test to order the production of records requires the applicant to satisfy me on a balance of probabilities that the records are likely relevant to an issue at trial and their production is necessary in the interests of justice.

[22] As noted by O’Connor J. in R. v. L.F. (2006), 2006 CanLII 1024 (ON SC), 37 C.R. (6th) 152 (Ont. S.C.), the accused often finds himself or herself in a dilemma, simply because he or she does not know what the records contain, and is thus hampered in his or her ability to demonstrate likely relevance. However, it is clear from the cases interpreting the legislative provisions, that the applicant must demonstrate likely relevance through evidence, and not through speculative assertions or assumptions. As Doherty J.A. held in Batte, at para. 53: “The likely relevance of the records to an issue at trial, a witness’ credibility or the competence of a witness to testify is a prerequisite to an order compelling production of the records to the judge.”

[23] An O'Connor application proceeds in two stages. First, the accused must demonstrate that the information contained in the records is likely relevant. This threshold is intended to “screen applications to ensure the proper use of state authority in compelling production of third-patty records and to establish the appropriateness of the application to avoid squandering scarce judicial resources”: R. v. McNeil, 2009 SCC 3 at para. 11. To establish the “likely relevance” threshold, the accused must satisfy the court that there is a reasonable possibility that the information is logically probative to an issue at trial, which includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings but also evidence relating to the credibility of witnesses and to the reliability of other evidence in the case.

[24] The “likely relevance” threshold has a “wide and generous connotation, and, at this first stage, this initial threshold is not an onerous burden. Privacy considerations do not enter this stage of the analysis, nor do considerations of the information's admissibility at trial. Where the threshold is met, the court orders production of the requested material to the court.

[25] At the second stage, the court reviews the materials and balances the third party's privacy interest, if any, and the accused's interest in making full answer and defence. This balancing exercise informs whether, and to what extent, a court will order disclosure based on the following factors:

The extent to which the records are necessary for the accused to make full answer and defence;

The probative value of records;

The nature and extent of the reasonable expectation of privacy vested in the records (though there is no presumption of privacy that attaches to third-party records in the O'Connor framework).

Whether production would be premised upon any discriminatory belief or bias; and

The potential prejudice to the complainant's dignity, privacy, or security of the person that would be occasioned by the production of the records.

[26] If, upon inspection, the court is satisfied that the documents are “clearly irrelevant” the application will be dismissed. However, if the claim of likely relevance established at the first stage is borne out, the accused's right to make full answer and defence will, with few exceptions, tip the balance in favour of allowing the application for production. A third-party privacy interest may warrant redactions or conditions on disclosure but is unlikely to defeat the application for production.

Analysis:

[27] It is trite law that for this type of application, the onus is on the applicant. Here, none of the records sought are journal entries, counselling or therapeutic records and accordingly, they may not enjoy a higher expectation of privacy. All of the records sought relate to police or investigative notes or training. There is no issue of public interest privilege.

[28] I pause to add that in my view, at this stage of the process, I do not consider it to be part of my function to assess the weight to be given to evidence that may be relevant to an issue at an upcoming application or at trial.

First-Party Records:

[29] Briefly, I will address my summary dismissal of the first party records application.

[30] The Crown has a duty to disclose all relevant, non-privileged information that is in its possession or control, regardless of whether the information in inculpatory or exculpatory, unless the disclosure of that information is governed by another regime. This is referred to as first party or Stinchcombe disclosure: R. v. Pascal, 2020 ONCA 287, [2020] O.J. No. 1998, at paras. 100-101.

[31] With respect to first-party disclosure, the term “Crown” refers only to the prosecuting Crown. It does not refer to all Crown entities, such as the police: Pascal, at para. 103, R. v. Gubbins, 2018 SCC 44, at para. 20, McNeil, at paras. 22-24, R. v. Jackson, 2015 ONCA 832 at para. 80-82.

[32] In Gubbins, the Court held that in order to determine which regime is applicable, one should consider the information that is sought in the possession and control of the prosecuting Crown; and is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified as the fruits of the investigation or obviously relevant. An affirmative answer to either of these questions will call for the application of the first party disclosure regime. Otherwise, the third party disclosure regime applies.

[33] Nevertheless, police have a duty to participate in prosecutions and the disclosure process. Police are obligated to provide the Crown with all material pertaining to the investigation of an accused. The material that must be provided by the police includes the “fruits of the investigation” as well as any other material that is “obviously relevant” to the accused’s case: McNeil, at paras. 14, 23, Pascal, at paras. 104-107, Gubbins, at paras. 21-23.

[34] Significantly, the phrase “fruits of the investigation” refers to information that is “generated or acquired during or a result of the specific investigation into the charges against the accused”. Pascal, at para. 105, Gubbins, at para. 22.

[35] I agree with the Crown that generally, records possessed by third parties (and in this case, the HPS related to other investigations) are not subject to the first party disclosure rules. Third parties are under no obligation or duty to assist the litigating parties or to disclose information to them. See McNeil, at para. 47, Jackson, at para. 83, R. v. Quesnelle, 2014 SCC 46 at paras. 11, 13.

[36] Here, despite counsel’s able arguments, the records sought by the applicant are not in the possession or control of the prosecuting Crown. The records sought, should they exist, are held by the HPS and are totally distinct and wholly unrelated to this case. Applicant’s counsel could not point to any jurisprudence that supports his assertion for such productions under the “Stinchcombe” regime that relates to the specific issues in the application.

[37] Clearly, the records sought by the applicant do not pertain to the investigation of the applicant. In my opinion, they do not constitute “fruits of the investigation” nor are they “obviously relevant” to the applicant’s Charter application or overall case.

Third Party Records:

[38] The phrase “likely relevant” means that there is a reasonable possibility that that information is logically probative to an issue at trial or the competence of a witness to testify. While this is not a particularly onerous burden, it is still significant and applies a more demanded standard than merely whether the information may be useful. The relevance of the records must be assessed in the context of the entire case and the positions of counsel: O’Connor, at para. 22. McNeil, at paras. 28-29, 33, Jackson, at paras. 121-122, 127-129, 138.

[39] An “issue at trial” includes material issues concerning the unfolding of events which form the subject matter of the proceedings, as well as “evidence relating to the credibility of witnesses and to the reliability of other evidence in the case”. O’Connor, at para. 22. McNeil, at para. 33.

[40] The test for “likely relevance” will not be satisfied on a “mere assertion that the record is relevant to credibility”. As the Court of Appeal explained in Batte, at paras. 75-77, the applicant must point to some “case specific evidence or information” to justify such an assertion. This is consistent with Justice L’Heureux-Dube’s comments in O’Connor that “the applicant cannot simply invoke credibility ‘at large’ but must rather provide some basis to show that there is likely to be information in the impugned records which would relate to the complainant’s credibility on a particular, material issue at trial.” See O’Connor, at para. 142.

[41] In my gatekeeper role, I am expected to play a meaningful role in screening applications to prevent “speculative, fanciful, disruptive, unmeritorious, obstructive, and time-consuming” requests for disclosure. The prevailing jurisprudence emphasizes that criminal trials must remain focused on the issues to be tried, and scarce resources should not be squandered on “fishing expeditions”.

[42] I am persuaded by Mr. Visentini’s submissions and the relevant authorities outlined in his factum, particularly the case of R. v. Khan [2004] O.J. No. 3811 (S.C.). In Khan, the accused, who was charged with possession of cocaine for the purposes of trafficking, alleged that he had been arbitrarily detained by the police. Specifically, he alleged racial profiling, claiming he was targeted by the police officer involved because he was a young black man driving an expensive car. In support of this allegation, the accused sought production of documents relating to the arresting officer's record relating to arrests and HTA citations issued by the officer. The accused indicated that the evidence sought would not be used for statistical purposes, but rather only to show prior similar conduct by this officer.

[43] The application was dismissed as a “fishing expedition” I adopt the instructive comments from my colleague, Molloy J. at para. 59 of Khan:

In any event, whether the records sought are provided with or without the names of the persons arrested, there is no evidence whatsoever from the defence to suggest that the arrest records are likely to show any arrests meeting the profile posited by the defence. The defence request for the documents is supported by nothing more than speculation and wishful thinking. This case falls squarely within the large body of case law prohibiting disclosure where the defence application is shown to be nothing more than a fishing expedition.

[44] Similarly, in R. v. Fitch, [2006] SCKA 80, the accused applied for an order that the Crown disclose information pertaining to the number of out-of-province vehicle stops made by a particular constable, the reasons for the stops, the number of stops resulting in a search for narcotics and how many searches were conducted pursuant to a search warrant. The trial judge ordered disclosure. In reversing the trail judge’s decision, the Saskatchewan Court of Appeal stated at para. 23:

Closely similar issues arise in the case before us. At the preliminary inquiry, the only question of "past practice" or "past conduct" put to the investigating officer related to the number of times in the previous 12 months he had used consent forms in order to search a vehicle. In argument before the trial judge, counsel for the respondent appears to have focused on his concerns about the officer's use of that form, but did not explain how the information sought would be probative of any issue in regard to that. In this Court, counsel for the respondent emphasized that he wished to show a "pattern" to the effect that the officer in question was "targeting" out-of-province vehicles and stopping them on pretext so that he could conduct searches for contraband. However, as in Khan, it is not at all clear how the information sought could provide support for that claim. The relevant question in this case is whether the vehicle driven by the respondent was stopped for legitimate traffic concerns. If not, the stop was arbitrary and the respondent's constitutional rights may have been violated. However, simply knowing the number of out-of-province stops previously made by this officer would be of no probative value in relation to that question.

[45] At para. 26, the Saskatchewan Court of Appeal held:

First of all, without comparative data, and possibly expert evidence, the bare numbers of stops, searches, uses of consent forms, or arrests could not establish any "pattern" at all. Second, it would have to be determined, in each case, whether the stop was for highway safety or other legitimate reasons. This could not be established without a mini-trial in relation to each such stop. Third, even if the information sought supported an inference that the officer's previous investigations did not comply with the requirements of the Charter, it would not follow that his conduct in this case was illegal. At best, it is evidence that could be used to impugn the credibility of the officer in his account of his reasons for stopping the vehicle and the way events during the stop transpired. Finally, the respondent provided no evidence at all, either to the trial judge or to this Court, to support the suggestion that the officer in question was in fact, over the time period in question, engaged in the conduct alleged.

[46] I agree with the Crown and counsel for the HPS that the applicant has not satisfied the first step of the O’Connor test. With respect to the disclosure of material pertaining to the officers and unrelated traffic stops, the applicant has not provided a sufficient basis to support an argument for the “likely relevance” of the records sought. The applicant cannot rely on speculative assertions in establishing “likely relevance”.

[47] Turning to the issue with respect to sought-after training materials, as the Crown attorney points out, courts have ruled that police training materials are not relevant. What is clearly relevant is the officer's conduct in a particular case, and not the officer's police training.

[48] For example, in R. v. Clayton, 2007 SCC 32, at para. 51, the court considered this issue:

.... What is under constitutional scrutiny is the police conduct, not police training. The officer's good faith in carrying out their duties is the issue in this case. To go further and examine the training behind such conduct would risk transforming the inquiry into a protracted pedagogical review of marginal relevance to whether the police conduct itself represented a breach of sufficient severity to warrant excluding the evidence.

[49] In R. v. Beaver, 2016 ONSC 664, (2016) O.J. No. 833 at paras. 40-41, Fitzpatrick J., made similar comments in refusing to order the production of records related to training courses taken by detectives in crime scene investigation and statement taking. The judge determined that how the officers were trained may or may not have affected how they did their jobs, but what matters is what they did. Fitzpatrick J. also ruled that requiring production of the training records amounted to a fishing expedition by defence.

[50] In R. v. G(S.), 2012 ONCJ 176, in declining to order production of police training materials, Nakatsuru J. (as he then was) stated at para. 48:

There are not universal standards governing police conduct. Undoubtably the Toronto Police Service have an abundance of material in written, digital or audio/video form for the training of its members. There may be a significant variance in their content. They may be of greater or lesser value and use depending on the case and the predilections of an individual officer. They may differ from reference material to reference material, course to course, instructor to instructor, mentor to mentor. With respect to some materials, it may be that some officers are at liberty to disagree with the advice or guidance in them. Some officers may not follow the training received if the circumstances are such that to do so would be inappropriate. Deviation may be inconsequential.

[51] Nakatsuru J., also reflected on the breadth of the defence request. The court noted that police officers acquire knowledge and skill through training and experience.

[52] As another example, in R. v. Soqja, 2018 ONCJ 659, the applications judge also denied the defence request for use of force training materials because the officer's actions stood or fell on their own, and compliance with or deviation from the training will not be dispositive.

[53] While some courts have said that training materials are “generally” not relevant, the Supreme Court's jurisprudence is clear that the inquiry is case specific. The question is whether the specific materials sought are likely relevant to an issue at the accused's trial. Here, it bears repeating that the applicant relies on several considerations while attempting to distinguish his case from those cases where training materials have been “generally” found not to be relevant.

[54] The training materials sought here relate to some conjecture. The applicant does not contest having surrendered readily accessible cannabis in a sandwich bag to the police while in his motor vehicle. The subsequent search was in accordance with the statutory powers provided to police officers by the CCA. There is therefore no “likely relevance” in any police training/drug manual in relation to cannabis consumption, detection, traffic stops and search powers under the CCA.

[55] With respect, I do accept the applicant’s submissions. The overall thrust of the application is to contrast the specific officer’s conduct or actions in the investigation with the experience shared by his fellow officers on the basis of training received or not; and not his or their actions regarding the specific investigative steps taken during this traffic stop.

[56] I also observe that in Batte, at para. 77, Doherty J.A. also made it clear that merely because a record might assist in cross-examining a complainant is not sufficient.

[57] Finally, I also agree with the Crown that the production of records as it pertains to the s. 24(2) analysis is premature. While training may be relevant to an officer's bona fides, I do not accept that at this early stage, the adequacy of training is a relevant consideration for an assessment of good faith.

Conclusion:

[58] The records sought by the applicant neither meet the Crown’s first party Stinchcombe disclosure obligations, nor are they “likely relevant” to an issue at trial under the O’Connor regime. The Application is dismissed.

A.J. Goodman J.

Date: December 19, 2023