Court File and Parties

Court File No.: CR-23-10000201-0000 Date: 2023-12-19 Ontario Superior Court of Justice

Between:

His Majesty the King Responding Party

– and –

Umar Zameer Defendant/Applicant

Counsel: N. Hasan and A. Heine, for the Defendant/Applicant M. Cantlon and K. Simone, for the Crown/Responding Party D. Butt, for the Third Parties, Forbes and Birtles S. Hutchison and B. Chung, for the Third Party, Toronto Police Service

Heard: November 8 and 13, 2023

Before: Molloy J.

Reasons for Decision

(Disclosure/Production Application)

A. INTRODUCTION

[1] In the early morning hours of July 2, 2021, DC Jeffrey Northrup, along with several other Toronto Police Services officers, was in the underground parking garage at Toronto’s City Hall investigating a recent stabbing. Tragically, DC Northrup was run over by a car driven by Umar Zameer and died at the scene. Mr. Zameer was charged with first degree murder in connection with this death. His trial is scheduled to commence before me, sitting with a jury, on March 18, 2024.

[2] In advance of the trial date, the defence brought four applications relating to: (1) disclosure, or alternatively, third party production of documents in the custody of the Toronto Police Service (TPS); (2) the admissibility at trial of exculpatory statements made by Mr. Zameer to the police; (3) the wording of questions to be asked of potential jurors on the challenge for cause; and (4) leave for the defence to provide an opening statement to the jury prior to any evidence being called, rather than at the close of the Crown’s case.

[3] The Crown is not opposed to the defence addressing the jury immediately after the Crown opening. This is an option I frequently make available to the defence. It is understandable that it be exercised in the circumstances of this case. It is entirely up to defence counsel if they choose to do so. Needless to say, there is only one defence opening address. If defence counsel chooses to address the jury from the outset, there will not be a second opportunity to do so at the close of the Crown’s case. There will also be the standard instruction to the jury that anything counsel say is not evidence, and that if no evidence is called on a particular point, they must disregard what counsel said about it.

[4] The application for disclosure/production relates to two separate categories of documents: (1) TPS records relating to an investigation of possible theft or breach of trust by one of the key Crown police witnesses, DC Forbes; and, (2) materials for three specific programs used by the TPS to train its members.

[5] On November 10, I made two rulings[^1] with respect to the disclosure/production application. First, I ruled that the training materials did not fall within the Crown’s first party Stinchcombe duty of disclosure, and further did not meet the threshold required for the first stage of production of records from a third party. That aspect of the application was dismissed, with written reasons to follow. Those reasons are set out below.

[6] Second, I ruled that the investigation file with respect to DC Forbes also did not fall within the Crown’s first party disclosure obligations. However, it met the relevance standard required at the initial stage for requiring disclosure by third parties. I therefore ordered that those documents be turned over to me for my review.

[7] On November 14, 2023, I conducted a second stage hearing with respect to those records. By then, I had reviewed the documents. After hearing submissions initially from the third parties, and then from the Crown and defence, I determined that the documents should be produced to the defence, subject to one minor excision that was private in nature and of no relevance to the defence. My reasons for that decision are also set out below.

[8] My reasons with respect to the application for disclosure/production of these documents follow. I will deal with the exculpatory statements application and the challenge for cause questions in separate reasons.

B. FACTUAL CONTEXT

[9] On Canada Day, July 1, 2021, Umar Zameer visited Nathan Phillips Square in Toronto with his family: his wife, Aaida Shaikh (who was in her third trimester of pregnancy); and their two-year-old toddler. They arrived in the underground parking below City Hall at 11:04 p.m., then left their BMW in the parking lot and went out to visit the area.

[10] While they were gone, a man was stabbed in the abdomen and was seen walking around Nathan Phillips Square with visible stab wounds, covered in blood. The police were called at approximately 11:45 p.m. and arrived on scene at 11:55 p.m. Among the officers who attended in response to the call were members of TPS 52 Division’s Major Crimes Unit, including DCs Jeffrey Northrup, Lisa Forbes, Antonio Correa, and Scharnil Pais. All were in plain-clothes. At 11:55 p.m., DC Forbes interviewed the victim, who gave a general description of his attacker as being a homeless man, with brown skin, big hair, a big beard, and heavy-set. Other officers reviewed security footage and learned that the victim had emerged onto the Square from a stairwell leading to the underground parking.

[11] DCs Northrup and Forbes entered the parking garage on foot while DCs Pais and Correa drove into the lot in a large grey unmarked van with tinted windows.

[12] Close to that same time, Mr. Zameer and his wife and child arrived back at their BMW. It was then 12:15 a.m. on July 2, 2021. It has now been conclusively determined that Mr. Zameer had nothing whatsoever to do with the stabbing and was not in the underground parking when it occurred. However, at the time, the officers investigating the crime did not know that.

[13] DC Forbes testified at the preliminary hearing that her attention was drawn by the sound of a small child who appeared to be crying. The four officers headed in that direction, two on foot and two in the unmarked van. As they were approaching Mr. Zameer’s car, the toddler was already strapped into the child’s car seat in the back seat, and Ms. Shaikh was seated in the front passenger seat. DC Forbes recalled that she was wearing a pale yellow hijab. DC Forbes testified that Mr. Zameer was standing outside the car on the driver’s side, with the door open, and was about to get in. She and DC Northrup were approaching towards the passenger side of the vehicle. She therefore did not have a full view of Mr. Zameer, who could generically be described as a brown male, slim build, with short hair, and a short beard. However, DC Northrup testified that he “somewhat matched” the description of their suspect. She also testified that apart from that, she wanted to speak to the man at the BMW to find out if he had seen anything that could help them find the suspect. Also, she testified that it looked to her as though the child was not properly strapped into the car seat and that she was going to double check that seat prior to ending their engagement with the driver of the car. DC Forbes conceded that she did not have reasonable and probable grounds to detain Mr. Zameer at this point.

[14] DC Forbes testified that she was wearing her police badge on a chain around her neck and that as they approached Mr. Zameer, she held up the badge, smiled at him, and said “Hi, police. Can we speak to you.” She said that Mr. Zameer’s eyes widened and he jumped in the car and slammed the door. She said she and DC Northrup went to the passenger side of the car, where she continued to show her badge, and pounded on the window, as did DC Northrup. She testified that both of them repeatedly said “Police” and were telling him to stop. However, he drove forward from the parking spot, at which point the other two officers drove up in the unmarked van and blocked his way forward. According to DC Forbes, Mr. Zameer then started driving his car back and forth and eventually got into the laneway behind him. DC Northrup was now in front of the BMW and was ordering it to stop. However, Mr. Zameer drove forward, striking DC Northrup. Both the front and rear tires of the BMW drove over DC Northrup, who suffered severe trauma to his body causing his death.

[15] Mr. Zameer then drove to the exit, and stopped behind two other vehicles that were waiting to pay. DCs Pais and Correa followed in the unmarked van, rammed the BMW, removed Mr. Zameer from the car, and placed him under arrest.

[16] Mr. Zameer concedes running over DC Northrup and causing his death. However, he is expected to testify that he did not know these people were police officers, that he believed he and his family were under attack, and that he acted in self-defence to save himself and his family.

C. GOVERNING LEGAL PRINCIPLES

[17] The defence seeks production of two categories of documents: (1) training materials for three TPS education courses for police officers; and (2) records relating to the investigation of allegations of dishonesty against DC Forbes, who will be a key Crown police witness. In each case, the defence submits that these are first party records which the Crown is required to disclose as part of its ongoing disclosure obligations pursuant to Stinchcombe.[^2] Alternatively, the defence seeks a third party production order requiring the TPS to turn over the documents sought.

[18] Stinchcombe requires the prosecuting Crown to disclose to the defence all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. This extends to material relied upon by the Crown, but also anything for which there is a “reasonable possibility” that it may assist the defence in making full answer and defence.[^3]

[19] The courts have consistently recognized that the Crown and the police are distinct entities and that documents in the possession and control of the police are not necessarily in the possession and control of the Crown.[^4] However, the investigating police force has a corresponding Stinchcombe duty to turn over to the Crown its investigation file for purposes of disclosure to the defence.[^5] As stated by the Supreme Court of Canada in Gubbins:

The “fruits of the investigation” refers to the police’s investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused. Such information is necessarily captured by first party/Stinchcombe disclosure, as it likely includes

relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.

In its normal, natural everyday sense, the phrase “fruits of the investigation” posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused.[^6]

[20] Because neither of these sets of records sought by the defence in this application falls within the “fruits of the investigation” category, the duty to disclose under Stinchcombe is not automatic. However, the Stinchcombe duty may still apply to materials that are “obviously relevant” even if they are not part of the fruits of the investigation, and even if not actually in the possession of the Crown. With respect to the extent to which this Stinchcombe duty applies to police disciplinary records, the Supreme Court of Canada in McNeil held:

. . . it is “neither efficient nor justified” to leave the entire question of access to police misconduct records to be determined in the context of the O’Connor regime for third party production. Indeed, as discussed earlier, the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown without prompting. For example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it becomes incumbent upon the police force, in fulfilment of its corollary duty of disclosure to the Crown, to look into those criminal cases in which the officer is involved and to take appropriate action. Of course, not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused’s case. The officer may have played a peripheral role in the investigation, or the misconduct in question may have no realistic bearing on the credibility or reliability of the officer’s evidence. The kinds of information listed in the Ferguson Report can provide useful guidance on those types of matters in respect of which a police force may well be advised to seek the advice of Crown counsel.[^7]

[21] Charron J. in McNeil, favourably referred, at paras. 55-57, to the Report by the Honourable George Ferguson Q.C. entitled Review and Recommendations Concerning Various Aspects of Police Misconduct (2003), vol. 1 at p. 17, following a review commissioned by the Chief of the TPS. The Ferguson Report noted the difficulty of leaving reports or findings of police misconduct to be determined entirely in the third party records regime established under O’Connor, as the defence is unlikely to know about the existence of such records. The Report made a number of recommendations with respect to situations in which information about police misconduct should be part of first party disclosure by the Crown with respect to a police officer who may be a witness or who was otherwise involved in a case before the court. The recommendations, commonly referred to as the “Ferguson Five,” are as follows:

1. Any conviction or finding of guilt under the Canadian Criminal Code or under the Controlled Drugs and Substances Act [for which a pardon has not been granted].
2. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.
3. Any conviction or finding of guilt under any other federal or provincial statute.
4. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.
5. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.

[22] Even if records in the hands of the TPS do not fall within the Stinchcombe first party disclosure obligation, it is still open to the defence to seek their production as third party records, subject to the regime established by the Supreme Court of Canada in O’Connor.

[23] At the first stage of a third party production application, the onus is on the defence to demonstrate that the records sought are “likely relevant” to the proceedings against him. The phrase “likely relevance” means 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.”[^8] The Supreme Court of Canada recognized that this is a higher standard than is required with respect to documents in the possession of the Crown, describing it as a “significant burden” but not an “onerous” one.[^9] Further, the court in McNeil emphasized that the defence cannot be expected at this stage to demonstrate with precision how the targeted documents could be used at trial as “[t]he imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position.”[^10]

[24] If the likely relevance test is established, the third party will be required to turn over the materials sought to the application judge for his or her review. Having reviewed the documents, the application judge will then determine whether the “likely relevance” of the documents has been borne out.

[25] If so, the judge must engage in a balancing process, considering the salutary and deleterious effects of production and weighing them against the right of the accused to make full answer and defence. Essentially, this involves balancing the privacy rights of the third parties against the right of the accused to make full answer and defence, which involves a consideration of the degree to which the material is relevant to the issues at trial. In O’Connor, the Court identified five factors to be considered at this stage:

1. the extent to which the record is necessary for the accused to make full answer and defence;
2. the probative value of the record in question;
3. the nature and extent of the reasonable expectation of privacy vested in that record;
4. whether production of the record would be premised upon any discriminatory belief or bias; and
5. the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record in question.[^11]

D. POLICE TRAINING MATERIALS

[26] The defence seeks production of all materials related to three TPS training courses: (1) High-Risk Vehicle Takedown; (2) Religion of Islam; and (3) Suspect Apprehension and Pursuit.

[27] There is a body of case law dealing with applications for production of materials used in training courses for police officers, some of which distinguish between training materials versus documents that are more in the nature of directives or protocols that set standards to which all officers are required to adhere.[^12] I accept that this is a distinction that will often make a difference as to whether disclosure or production will be ordered, but not in this case. There is also an issue in this case as to whether the defence requests for disclosure clearly referenced a request for protocols and standards, as opposed to only training materials. Again, this is an issue that does not affect the result. Therefore, I will not resolve either of these issues. Even taken at its highest, that is accepting that the defence outlined a clear request for protocols and standards included in the training materials as well as the training materials themselves, the defence has failed to establish even a threshold level of relevance.

[28] There are also issues with respect to which officers took which courses and when. None of the officers took the High-Risk Vehicle Takedown course; all of them took the Suspect Apprehension course at various times between 2009 and 2013; and all of them took the course on the Religion of Islam, but it was in 2012 and 2013. Given my findings with respect to relevance, it would not have mattered if every officer had recently taken every course. The training materials are simply not relevant to any issue at trial.

[29] There will be situations in which what an officer was required to do, or what he or she should have done, will be relevant to an issue in the case. For example, protocols for interviewing a vulnerable witness may be relevant to whether a statement was given voluntarily or police standards for contacting a lawyer for a person under arrest may be relevant to a Charter application with respect to a breach of the right to counsel, including whether the breach was a result of a systemic failure by the police. Nothing like that arises in this case.

[30] Here, what is relevant is what the police officers actually did, and how that was perceived by Mr. Zameer. The issue is not what the officers may have been taught as best practices in approaching someone for questioning, but rather what actions they took, and what Mr. Zameer believed at the time. Even if one applies a quasi-objective test of what a reasonable person in Mr. Zameer’s position would have believed, the training of the officers has no relevance. Likewise, any education the officers may have received with respect to the religion of Islam has no bearing on what they actually did and how it was perceived. The question is whether Mr. Zameer knew that the people who approached him were police officers, what his intent was when he drove over DC Northrup, and whether he believed that he and his family were under attack by strangers. I cannot see any logical connection between the elements of self-defence (which it is anticipated Mr. Zameer will rely upon) and the training materials for courses the officers took. There is nothing about the training that these police officers received that can assist the jury in determining what was in Mr. Zameer’s mind. It is only the police conduct that is relevant to what was perceived by Mr. Zameer, regardless of whether it was textbook perfect or widely divergent from the standards they were taught. The issues will not turn on whether the police conduct was contrary to what they were taught, or whether every officer did exactly what they were supposed to do. The issues would still be the same: what the police actually did and how it was perceived by Mr. Zameer. It would not assist the Crown to point out that the officers were acting in accordance with police procedure, nor would it assist the defence to show that they were taught to do something different.

[31] I have considered the impact of the TPS having voluntarily provided some of the training materials sought and the Crown having disclosed those to the defence. I have concluded that this has no bearing to the analysis of whether other materials must be produced. The documents are either relevant or they are not. In my view, they are not. Accordingly, I find that the request for production of the training materials and/or protocols does not meet the standard of relevance required for either first party or third party disclosure. That aspect of the application is therefore dismissed.

E. RECORDS OF MISCONDUCT BY DC FORBES

Evidentiary Basis Supplied by the Defence

[32] The material disclosed by the Crown to the defence did not include any reference to disciplinary proceedings involving DC Lisa Forbes.

[33] Through independent internet research, defence counsel discovered media reports that DC Forbes (then known by the surname Hayford) and another officer (PC Birtles) had been under internal police investigation in 2011 and 2012 in relation to possible misappropriation of funds. According to articles in the Toronto Sun and the Toronto Star, PC Birtles and DC Hayford had been selling tee-shirts as a fundraiser for a fellow officer, Ryan Russell, who was killed in the line of duty in January 2011. The Sun reported (February 9, 2012) that approximately $70,000 had been raised, supposedly to be deposited in a trust fund for Sgt. Russell’s young son and further that only about $13,500 had been recovered, of which $7500.00 was found in a gun locker. The Toronto Star reported (February 10, 2012) that the investigation had begun one month earlier, that the fundraising activities “were not sanctioned by the police department”, and that the police investigators at that point were not ruling out anything including possible criminal charges or disciplinary charges.

[34] At the preliminary hearing on February 28, 2023, defence counsel cross-examined DC Forbes about her role in this fund-raising activity and about the internal investigation and anything flowing from it. DC Forbes testified that she was only “vaguely” involved in the fundraising project, that PC Birtles was the organizer, and that she was only assisting him. She denied that she was a “subject” of that investigation and said that she was “designated as a witness officer.” She acknowledged that she was involved in the sales of the tee-shirts, but said she was only responsible for collecting a small quantity of cash. She testified that she was reprimanded at the station level for keeping the cash she had collected in her gun locker at the station, because that is not the intended use of a gun locker. She explained that she decided to store the money there because it was locked and subject to video camera surveillance. She could not recall the amount of cash she kept in her locker, nor did she have any knowledge as to the total amount collected in the fundraiser.

[35] Five days after DC Forbes’ cross-examination at the preliminary hearing, defence counsel for Mr. Zameer sought disclosure of all records relating to this investigation. Initially, the Crown advised that both officers (Forbes and Birtles) had been disciplined at the divisional level for “discreditable conduct” and that all records of that had since been expunged at the divisional level. However, subsequently, the Crown advised that although the divisional records were expunged, some records had been archived and could be retrievable through another department.

[36] The Crown took the position that it had no obligation to disclose these records pursuant to Stinchcombe as they were not “obviously relevant.” The documents remained in the custody of the TPS, which also objected to producing the records as third party records, and had retained counsel in that regard. Further, PC Birtles and DC Forbes objected to the production of these records, and had retained counsel to represent their individual interests.

The Test for First Party (Stinchcombe) Disclosure Is Not Met

[37] Clearly, these records were not in the possession of the Crown and were not part of the “fruits of the investigation” by the police. The question is whether, notwithstanding this fact, they are “obviously relevant” and must be disclosed by the Crown as part of its first party Stinchcombe disclosure.

[38] On the material before me, I found that the “obviously relevant” standard had not been met. This was an internal discipline matter resulting only in a reprimand for improper use of a storage locker 12 years ago. There was no finding of dishonesty or deceit, and nothing akin to the categories listed in the Ferguson Report as supporting a duty of first party disclosure. I should not be taken as saying that internal discipline records of a non-serious nature can never be the subject of first party disclosure. Undoubtedly, there will be situations in which infractions considered to be “minor” may nevertheless involve dishonesty and therefore be relevant to credibility. However, in this case, the Stinchcombe level threshold is not met.

The Test for Third Party Production is Met

[39] I turn then to consider whether the test for third party production has been met. Here, the burden is on the defence to demonstrate that the documents are “likely to be relevant” to an issue at trial.[^13] I find that the defence has met this burden. There is a “reasonable possibility” that there may be material in the investigation file that points towards the misappropriation of funds, a clear issue of dishonesty that is relevant to the credibility of the Crown’s principal witness at trial. The combination of the newspaper articles and the testimony of DC Forbes at the preliminary hearing demonstrates that something went wrong with the management of the funds obtained from selling tee-shirts ostensibly for the benefit of a trust fund for Sgt. Russell’s son. The defence is not required to simply accept at face value the testimony of DC Forbes as to her limited role, nor her testimony at the preliminary hearing that the only thing she had done wrong was misuse her gun locker. The only way for the defence to test such evidence would be to examine the records and determine if what she testified to at the preliminary hearing is true. If the records tell a different story, that also may be relevant to her credibility. In my view, the defence has shown information that goes beyond mere speculation as to the possible relevance of these records. The test for production to me is met.

[40] I therefore ordered that the documents sought be provided to me for my review.

My Review of the Documents

[41] Counsel for the TPS turned over to me a binder of documents relating to the investigation, which I reviewed. There are approximately 65 pages, including the formal Report of Investigation which is itself 30 pages. However, much of the material is duplicative.

[42] My review of the material revealed the following:

(a) There is only one investigation file with respect to the Ryan Russell tee-shirt fundraiser. To minimize the intrusion on PC Birtles’ privacy interest, counsel for Mr. Zameer sought production of the entire file with respect to the investigation of DC Forbes, but only those aspects of the PC Birtles investigation that related to DC Forbes and were not already in her file. The material in the file relates to both officers. There is no realistic way to separate the information relating only to DC Forbes from the rest of the file.

(b) There were two aspects to the investigation: corrupt practice (misappropriation of funds) and discreditable conduct (brought discredit to the TPS by the mismanagement of the funds).

(c) Initially, PC Birtles was the subject officer and DC Hayford (now Forbes) was interviewed only as a witness. Subsequently, in the course of the investigation, the investigators cautioned her that her status had now changed to being a subject officer of the discreditable conduct allegation. The only subject of the corrupt practice aspect was PC Birtles.

(d) The investigation began when another officer complained to senior officers that he had discovered in January 2012 that although a year had passed since the tee-shirts were being sold, the widow of Sgt. Russell knew nothing about it and no funds had been paid to her or into the trust fund for her son.

(e) There appeared to have been no records kept of sales made or monies received, and nothing was ever paid into any kind of ear-marked account.

(f) When she was initially interviewed by the investigators, DC Forbes turned over to the investigators an envelope containing $5680.00 in cash and ten cheques payable to PC Birtles totalling $380.00 (a total of $6060.00). All the cheques were stale-dated and their validity had expired. DC Forbes told the investigators that she had been keeping the money in her gun locker at the station. The investigators seized the funds.

(g) The next day, PC Birtles turned over to the investigators $6203.00 in proceeds from the sale of the tee-shirts.

(h) The investigators obtained a further $2406.00 (by cheque payable to the Nolan Russel Trust Fund) from the organizers of another fundraising event at which the tee-shirts were sold. PC Birtles was supposed to obtain these funds from the organizers but neglected to do so.

(i) Later in the investigation, the investigators were provided with a cheque for $10,000 from a lawyer’s trust account, which they were advised represented a good faith contribution by the two officers from their personal funds: $7000 from PC Birtles and $3000 from DC Forbes.

(j) The investigators contacted the supplier of the tee-shirts and determined the number of tee-shirts printed, then deducted the number of tee-shirts that remained unsold. As the shirts were sold at $20 each, the total proceeds were estimated to be $37,000, from which was deducted the amount paid by PC Birtles to the supplier, leaving a balance for the expected proceeds of $27,692.75.

(k) Ultimately, approximately $24,000 was paid to the Nolan Russell Trust Fund from the tee-shirt fundraiser, but this included the personal contribution of the two officers in the amount of $10,000.

(l) The investigators concluded that there was no evidence of criminal wrongdoing or corrupt practice and stated that “all monies have been accounted for.” However, this was after including the $10,000 contribution of personal funds by the officers and an allowance of $3,225.94 described as a deduction for “mismanagement”. In actuality the shortfall was approximately $13,000.

(m) The investigators further concluded that the officers acted in a manner that brought discredit to the police force through the “mismanagement of the fundraiser.”

(n) Both officers received a reprimand for discreditable conduct at the unit level and were docked a certain amount of lieu time (24 hours for DC Forbes). However, the Disciplinary Report included a hand-written note by the senior officer who administered it to the effect that PC Forbes was “well-intentioned” and did not benefit personally.

[43] After reviewing the material, I conducted Stage 2 of the hearing. At this point, I knew what was in the files, as did counsel for the TPS and counsel for the two officers. The Crown did not, nor did the defence. I had prepared a fairly detailed summary of the documents, which counsel for the TPS and the two officers submitted was too detailed to provide to the defence for purposes of argument, as it effectively gave away the substance of the files. I find that to be an accurate criticism. However, it was difficult to provide any information to the defence that would result in meaningful submissions without giving away the essence of the material.

[44] I provided the summary to the Crown. The TPS, the two officers, and the Crown all took the position that the material should not be produced. Counsel for the officers argued that the investigation related to events that occurred 12 years earlier, and there had been nothing since. He submitted that the older such evidence was, the more powerful it has to be in order to still have some relevance. In this situation, given the finding that the officers in question were well-meaning and the absence of any finding that either of them had misappropriated funds for their own use, very little weight could be given to the matter. He pointed out that the jury could easily get the wrong impression about the insinuations that money had gone missing and give undue weight to the issue. He recognized the difference between the production of the documents to the defence versus the issue of admissibility at trial, but questioned the utility of producing documents that could not be of any assistance to the defence if they could not be used at trial. All counsel, except counsel for the defence, essentially agreed with that position.

The Records Are Relevant and Should be Produced

[45] At the second stage of a third party production application, I must consider whether my initial finding of “likely relevance” at the first stage is borne out, based on my review of the material. Sometimes, the documents sought turn out to be clearly irrelevant, in which case the application would simply be dismissed. That is not this case. My review of the documents produced by the TPS leads me to conclude that the documents are even more relevant than I initially thought they might be.

[46] The fourth factor (discriminatory belief or bias) has no application here. I will deal first with factors three and five (reasonable expectation of privacy and impact of production on the privacy interest), and then with the countervailing factors (one and two) relating to the usefulness of the material to the defence.

[47] These are disciplinary records of a police officer. They contain summaries of information provided by witnesses (including her colleagues); conclusions reached by the investigators and her superiors with respect to her conduct; and the disciplinary sanctions imposed. DC Forbes clearly has a privacy interest in such records. However, the nature of that interest must also be taken into account. This is not information going to her biographical core data, nor are there any intimate or highly personal details. These are not medical or therapeutical records. They relate solely to her conduct with respect to this one fundraising initiative. While there is a privacy interest, it is by its nature at the low end of the scale.

[48] Likewise, the impact on DC Forbes of any disclosure is minimal. This may be embarrassing for her. However, the fact of the investigation was already in the public domain as a result of newspaper articles published at the time. In my view, there would be little prejudice to her personal dignity or security of the person. This factor is also at the low end of the scale.

[49] In this regard, I agree with the observations of Dambrot J. in R. v. Scaduto with respect to the nature of the privacy interest in disciplinary records. In that case, the records were found to fall within the disclosure obligation (which is not the case here), but the general principles remain applicable. Dambrot J. held:

. . . The records in question, relating to allegations of misconduct in the course of a public duty, may be embarrassing and, if untrue, potentially unfairly harmful to reputation; but they do not have the deeply intimate quality of therapeutic records, nor can any suggestion of a privacy interest be advanced when the allegations relate to a public duty. If the allegations are of substance, I would prefer to believe that the public had a right to know about them. In any event, information concerning the existence and nature of the allegations relating to events in October of 1997 are already known to the public, and cannot conceivably be considered to be private information.[^14]

[50] In McNeil, the Supreme Court of Canada held that once the claim of likely relevance 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.”[^15] Upon the determination that the material is relevant to the defence, the test for disclosure becomes similar to the Stinchcombe disclosure obligation. Typically, the privacy interest is protected by redactions or the imposition of limits on the use of the material, rather than forming a basis for denying production altogether. The Court held:

Once a court has ascertained upon inspection that third party records are indeed relevant to the accused’s case, in the sense that they pertain to an issue in the trial as described above, the second stage balancing exercise is easily performed. In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. It may be useful to pose the question in this way: if the third party record in question had found its way into the Crown prosecutor’s file, would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason to arrive at a different outcome on the third party production application. As we have seen, the Crown’s obligation under Stinchcombe to disclose to the accused the fruits of the investigation in its possession does not signify that no residual privacy interest exists in the contents of the file. However, it does mean that, with few exceptions (including the Mills statutory scheme), the accused’s right to access information necessary to make full answer and defence will outweigh any competing privacy interest. The same applies with respect to relevant material in the hands of third parties. This is particularly so in respect of criminal investigation files concerning third party accused. As Professor Paciocco aptly puts it:

. . . it would be perverse to hold that investigative information is not private enough to impose any constraints on the ability of the police to gather it and the Crown to use it to seek the conviction of the target of that investigation, yet that same information is protected by privacy interests when it contains relevant information that would help someone defend himself.

(David M. Paciocco, “Filling the Seam between Stinchcombe and O’Connor: The “McNeil” Disclosure Application” (2007), 53 Crim. L.Q. 161, at pp. 199-200)[^16]

[51] I turn then to consider the first two factors referred to in O’Connor: the probative value of the record and the extent to which it is necessary to the right to make full answer and defence. These two factors are interconnected in that the greater the probative value of the material, the more it will be necessary to the ability of the accused to make full answer and defence.

[52] DC Forbes is a pivotal Crown witness on the issue of whether she and DC Northrup clearly identified themselves as police officers. This goes to the very heart of the defence, which is that Mr. Zameer did not know these were police officers. DC Forbes is the only Crown witness who is able to provide firsthand information on this point given that her partner DC Northrup is now deceased and the other two officers were in a van with the windows up and not in a position to hear what was being said to Mr. Zameer. DC Forbes also testified at the preliminary hearing that she approached Mr. Zameer in a friendly, smiling manner, whereas the accused is expected to testify that he perceived himself and his family to be under attack. Undermining the credibility of the testimony of DC Forbes will therefore be a fundamental aspect of the defence strategy.

[53] The material from the disciplinary investigative file is useful and relevant to the defence in two ways: (1) it may provide a basis for cross-examining DC Forbes on inconsistencies between her testimony at the preliminary hearing and what was in the disciplinary file, thereby undermining her credibility; and (2) it may assist the trier of fact in reaching a conclusion that DC Forbes is not a scrupulously honest person, or that at the least, she was indifferent to her responsibilities to appropriately handle trust funds in her possession.

[54] At the preliminary hearing, DC Forbes minimized her involvement in the tee-shirt fundraiser and said that she had merely been assisting PC Birtles. She said that she was merely a witness who was interviewed, and not a subject of the investigation. In fact, her status did start off as being merely a witness. However, as matters progressed, the extent of her involvement led to her being brought back by the investigators and cautioned that her status had been elevated to a suspect officer with respect to the discreditable conduct charge. The documents also revealed that the investigation only began after a year had passed from the time the fundraiser began, by which point, no monies had been paid into the trust fund. At the beginning of the investigation, PC Birtles and DC Forbes each had about $6000 of proceeds in their personal possession. These facts might serve to challenge PC Forbes’ testimony that she was merely assisting PC Birtles in helping sell the tee-shirts.

[55] DC Forbes testified at the preliminary hearing that she was reprimanded for using her gun locker to store the cash because that is not the appropriate use of a gun locker. This is arguably inconsistent with the disciplinary record which indicates that she was disciplined for bringing discredit to the police force by the mismanagement of funds from the sale of the tee-shirts.

[56] It is unclear from the investigation report whether either of these officers took money from the sale of the tee-shirts and misappropriated it for their personal use. The investigators and the senior officers who signed off on the report and recommended discipline conclude that neither officer benefitted personally. However, there was an accounting by the investigators that is arguably generous to the officers involved. Discounts were allowed for various items, including a 5% error margin with respect to the number of shirts purchased and a 25% discount described as being for “mismanagement.” I have no understanding of why there should be a discount of that magnitude for mismanagement of trust monies. Even after those two discounts, there was still approximately $10,000 missing. This was addressed by PC Birtles and DC Forbes paying $10,000 out of their personal funds, which reportedly included $3000 from DC Forbes.

[57] Since this was an internal investigation and conclusions of no criminal conduct by ranking officers, the defence is not bound by the result as they might have been if there had been charges laid and a finding made by a court or tribunal. It is open to the defence to attempt to show that the officers must have benefitted personally, which would be a crime of dishonesty directly relevant to credibility. While this conclusion may not flow immediately from the findings of the investigation, production of the materials will at least provide the defence with the opportunity to do its own investigation. In that sense, the documents can be described as useful to the defence, even with the conclusion of no personal benefit to DC Forbes.

[58] In any event, evidence of bad character or misconduct can be relevant to the credibility and reliability of a Crown witness, even in the absence of conduct amounting to a crime of dishonesty.[^17] Likewise, showing that an officer lacked integrity, or was involved in deceit of some kind, is relevant to that officer’s credibility at trial.

[59] In my view, the disciplinary file is relevant to the issue of the credibility and reliability of DC Forbes, who will be the most important Crown witness at trial. Given the central nature of this officer’s evidence, any evidence that is useful to the defence in undermining her credibility must be seen as necessary to the ability of the accused to make full answer and defence. The privacy interest in the material is minor. The balancing of relevant interests in this situation tips strongly toward ordering production of the entire investigation file to the defence.

[60] There is one caveat to the breadth of this order. At page 10 of the Investigation Report itself, paragraph 6 is a single sentence that relates to something a witness told investigators that is of a highly personal nature, and which has no bearing whatsoever on the subject matter of the investigation. Counsel for the third parties advised that there were no other references within the materials of a similar nature. I have therefore directed that this one sentence be redacted before providing the material to the defence.

[61] The disclosure of the material is also subject to the following restrictions:

1. The material is to be kept in the possession and control of defence counsel in a secure location.
2. There shall be no disclosure of the content of the material to any third party, with the exception of an expert or investigator retained by defence counsel for the purposes of this case.
3. The content of the material shall not be published or distributed.
4. The material shall be used only for the purposes of this case.
5. The material shall be destroyed by defence counsel upon the expiry of any appeal periods following the determination of this trial.

[62] I also point out that this is a production order. Its purpose is to enable the defence to prepare its case for trial. The fact that I have ordered production, does not necessarily mean that the information derived is admissible in evidence at trial. If the Crown objects to its admissibility, that will be a matter for argument at trial.

Released: December 19, 2023 Molloy J.

[^1]: R. v. Zameer #1, 2023 ONSC 6396. [^2]: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 [Stinchcombe]. [^3]: Ibid, at para. 22; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at paras. 18-19 [Gubbins]. [^4]: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 22 [McNeil]. [^5]: Ibid, at paras. 22-23. [^6]: Gubbins, supra note 3 at para. 22, citing R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at paras. 92-93. [^7]: McNeil, supra note 4 at para. 59. [^8]: Ibid, at para 33, citing R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para 22 [O’Connor] [Emphasis deleted.] [^9]: O’Connor, supra note 8 at para 24. [^10]: McNeil, supra note 4 para. 33. [^11]: O’Connor, supra note 8 at paras. 31-32. [^12]: See, e.g. R. v. G.(S.), 2012 ONCJ 176 at paras. 36, and 47-52; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725 at paras. 50-52; R. v. M.M. 2015 ABQB 626; R. v. Oland, 2018 NBQB 253 at paras. 13, 29 and 35. [^13]: O’Connor, supra note 8 at para 19. [^14]: R. v. Scaduto, 1999 CanLII 14897 (ON SC), 63 C.R.R. (2d) 155, at para. 9 [Scaduto]. [^15]: McNeil, supra note 4 at para. 41. See also R v. Lam, 2016 ABQB 201, at para. 81; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 13. [^16]: McNeil, supra note 4 at para. 42. [^17]: R. v. Jama, 2011 ONSC 187, at para. 92; R. v. Melvin, 2009 NSSC 249, 248 C.C.C. (3d) 559, at paras. 107-124.