COURT FILE NO.: CR-19-50000354-0000 DATE: 20240326

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE QUEEN – and – D.H.

Counsel: Michael Wilson, for the Crown Earl Glasner, for D.H.

HEARD: March 21, 2024

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON DISCLOSURE APPLICATION

[1] On March 22, 2024, I dismissed an application brought by D.H. asking the Court to direct the Crown to obtain and review an RCMP file. What follows are my reasons.

BACKGROUND

[2] D.H. is charged with sexual assault. D.H. and the complainant had a son together, but their intimate relationship had ended. On the evening of April 4, 2016 D.H. was at the complainant’s apartment. He was helping her take care of their son. She had recently had surgery. During the evening he allegedly sexually assaulted her. He then slept over. The next morning W.B., the complainant’s friend, came by the apartment. D.H. was still there. W.B. was there to take the complainant to a doctor’s appointment.

[3] The Toronto Police Service subsequently charged D.H. with sexual assault. The case is being prosecuted by the Crown Attorney for Toronto West.

[4] On June 29, 2017, over a year after the alleged sexual assault, the RCMP executed a search warrant at the complainant’s apartment. The search warrant was part of a very large drug importation investigation called Project O-Abyss. The RCMP alleged that W.B. was using the complainant’s apartment as a drug stash house. The RCMP found a locked safe in the apartment containing 80.5 grams of cocaine and 431 grams of marijuana. The RCMP charged W.B. with, among other things, possession of cocaine for the purpose of trafficking a schedule 1 substance. The Public Prosecution Service of Canada, or federal Crown, had carriage of the prosecution. The PPSC subsequently stayed the charges against W.B.. The RCMP did not arrest or charge the complainant in relation to the cocaine and marijuana in the safe.

[5] On September 6, 2023, Crown counsel in this matter (the provincial Crown) provided an RCMP report pertaining to the charges against W.B. to Mr. Glasner, D.H.’s counsel. The report was sent via email. In the email, Crown counsel, Mr. Wilson, stated:

The Crown does not intend to call W.B. as a witness in these proceedings but it is disclosure that is not clearly irrelevant in respect of him. I will obtain an update with respect to the disposition in that matter. To the extent that [the complainant] is named in the occurrence, the Crown takes the position that the report is clearly irrelevant to any issue at the trial for D.H. [The complainant] was never charged as part of that investigation.

[6] That remains the Crown’s position.

[7] Mr. Glasner replied, also by email, that he disagreed with the Crown regarding the relevance of the information. Accordingly, Mr. Glasner requested:

… the details of W.B.’s criminal record and any involvement of [the complainant] in any of the matters for which he was convicted. Further I am requesting a copy of the ITO which facilitated the search of [the complainant’s] apartment. I am also requesting copies of the wiretap evidence for possible involvement of [the complainant] or knowledge on her part of W.B.’s activities with particular reference to her apartment. I would also request copies of the transcripts of W.B.’s preliminary hearing.

[8] Mr. Glasner followed up with a request for copies of the officer’s notes in relation to the execution of the warrant at the complainant’s apartment. Mr. Wilson’s position was that the entirety of the W.B. file is irrelevant to the charges against D.H.

[9] The RCMP Report stated that Project O-Abyss was an investigation targeting a drug importing network at Pearson Airport. W.B. was a primary target of Project O-Abyss. W.B. worked at Pearson Airport. According to the RCMP Report, W.B. was involved in the following incidents:

• On May 4, 2017, Canada Border Services Agency officers seized a shipment of 38 kg of cocaine from Trinidad and Tobago. According to intercepted communications, W.B. was involved in the importation.
• On May 20, 2017, the police intercepted communications between W.B. and someone in Jamaica. The person in Jamaica said he was missing four “dynamite sticks”. On June 12, 2017, CBSA officers used a dog to search a cargo container that was used for a flight from Jamaica to Toronto on May 20, 2017. The dog found hidden cocaine. The cocaine was seized by CBSA officers. The cocaine was packaged in the shape of dynamite sticks.
• On June 10, 2017, CBSA officers discovered more cocaine hidden in a cargo container. According to intercepted communications, W.B. discussed the importation of drugs earlier that day.
• In February 2017 a police agent arranged for a cocaine importation to occur on February 27. W.B. was observed at Pearson that day, unloading luggage, although he was not scheduled to work that day.
• Intercepted communications indicated that W.B. was trafficking firearms. The police executed a search warrant at W.B.’s home. During the execution of the warrant, they discovered and seized firearms.

[10] The RCMP Report indicated that W.B. used the complainant’s address as a stash house. W.B. was the target of the warrant. There was no other mention of the complainant’s name in the RCMP Report. The complainant was not charged or arrested in relation to the cocaine and marijuana seized from the safe. The RCMP charged W.B. with 10 counts arising from the Project O-Abyss investigation, including possession of cocaine for the purpose of trafficking in relation to the cocaine seized from the safe.

THE APPLICATION

[11] Mr. Glasner filed a Notice of Application asking the Court for an order directing the Crown to seek out and obtain “the [W.B.] investigative file which may be relevant i.e. in which there is a reasonable possibility that it may assist the Applicant in the exercise of his right to make full answer and defence” and specifically:

• The Information to Obtain the search warrant;
• The notes of the officers who executed the search warrant;
• Wiretap evidence where the complainant was involved;
• The notes of officers who conducted surveillance of the complainant and W.B.;
• Any surveillance video in relation to the complainant and W.B..

[12] Mr. Glasner’s Notice of Application sought, in the alternative, “an order of this Court pursuant to R. v. O’Connor reviewing the investigative file contents subpoenaed from RCMP with respect to Wayne W.B. and producing to the Applicant such of the contents which may assist the Applicant in making a full answer and defence.”

ISSUES

Does the material in the W.B. file fall under the Stinchecombe regime?

[13] Mr. Glasner essentially takes the position in his Notice of Application that the Crown is under a duty to obtain and disclose the W.B. file. In other words, he argues that the first party disclosure regime, usually called the Stinchecombe regime, applies to the W.B. file.

[14] With respect, I do not see how the first party disclosure regime applies here. The first party disclosure regime requires the Crown to disclose the “fruits of the investigation”: R. v. Stinchecombe, [1991] 3 S.C.R. 326. The Crown has no obligation to disclose that which it does not possess or control: R. v. McNeil, 2009 SCC 3 at paras. 17, 22; R. v. Gubbins, 2018 SCC 44 at para. 20.

[15] The W.B. file plainly does not include the fruits of the investigation into D.H. The prosecuting authority for the Blackwood matter was the Public Prosecution Service of Canada. PPSC and the RCMP are strangers to the provincial Crown Attorney in this case. Moreover, on its face, the provincial Crown does not have possession or control of the W.B. file. No first-party disclosure duty arises.

[16] I agree with Mr. Wilson, Crown counsel, that on its face, the W.B. file is a third-party record. The proper procedure is to bring an O’Connor or third-party records application: R. v. O’Connor, [1995] 4 S.C.R. 411. In R. v. McNeill the Supreme Court set out the procedure at para. 27:

(1) The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on the third party record holder. The subpoena compels the person to whom it is directed to attend court with the targeted records or materials. (2) The accused also brings an application, supported by appropriate affidavit evidence, showing that the records sought are likely to be relevant in his or her trial. Notice of the application is given to the prosecuting Crown, the person who is the subject of the records and any other person who may have a privacy interest in the records targeted for production. (3) The O'Connor application is brought before the judge seized with the trial, although it may be heard before the trial commences. If production is unopposed, of course, the application for production becomes moot and there is no need for a hearing. (4) If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, in all but the rarest cases where the accused's innocence is at stake, the existence of privilege will effectively bar the accused's application for production of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of the O'Connor process. (5) Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stage test established in O'Connor. At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, the judge may order production of the record for the court's inspection. At the next stage, with the records in hand, the judge determines whether, and to what extent, production should be ordered to the accused.

[17] This application should have followed the O’Connor procedure. The subpoena should have been served on the RCMP with notice to the federal Crown. The subpoena should have been returnable in this Court, with the prosecuting provincial Crown on notice.

[18] The provincial Crown prosecuting this case complied with his duty to make disclosure to counsel for D.H. Mr. Glasner, counsel for D.H., was entitled to ask the provincial Crown to make reasonable inquiries. The Crown does have a duty to make reasonable inquiries in appropriate cases to other third-party agencies: R. v. McNeil, at para. 13. Although McNeill uses the term “unfounded” at para. 49, in relation to Crown counsel’s duty to inquire, the real test is one of likely relevance: R. v. McNeill at para. 28. As the Supreme Court noted in that case at para. 49: “Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so.”

[19] If the provincial Crown counsel agreed with Mr. Glasner’s position that the W.B. file was relevant, he could have asked the RCMP or the federal Crown to produce it. In this case, Mr. Wilson evaluated the RCMP Report. He took a position that the W.B. file was irrelevant to the prosecution of D.H. He informed Mr. Glasner that he would not make further inquiries and would not attempt to obtain the W.B. file. At that point, it was up to Mr. Glasner to bring an O’Connor application. His alternative position is that this Court should embark on the O’Connor inquiry. The first step in that inquiry, however, is for defence counsel to subpoena the file and notify the federal Crown. That did not happen. The reasons why a court should not embark on an O’Connor application without the holder of the records present are obvious.

[20] I also disagree that this Court should direct Crown counsel to make reasonable inquiries and obtain the file for review. Crown counsel made an evaluation, took a position, and communicated that position to defence counsel. At that point, the ball was in the defence court.

[21] The decision not to make reasonable inquiries because the information does not rise to the level of likely relevance is one that the court may disagree with on a proper O’Connor application. The court might have (but might not have) taken a different view of the matter but that would have been in the context of a fully litigated argument where the appropriate parties were present.

[22] To direct the Crown to make inquiries risks interfering with the independence of the Crown. The independence of the Crown is a principle of fundamental justice: Krieger v. Law Society of Alberta, [2002] S.C.R. 372; R. v. Gill, 2012 ONCA 607 at paras. 57, 60. The Crown is not an agent of the Court. It is simply no part of this Court’s duty to interfere with the Crown’s discretion or tell the Crown what to do.

[23] Refusing to direct the Crown does not leave the defence without a remedy. The Crown refusal to conduct further inquiries should have triggered an O’Connor application.

Is the material in the W.B. file likely relevant to an issue at trial?

[24] The fact that that the O’Connor procedure was not followed is enough to dispose of this application. It would be open to the defence to bring a fresh application. That said, in my view a fresh application is unlikely to succeed.

[25] Mr. Glasner notes that there was a safe in the complainant’s residence that contained 80.5 grams of cocaine and 431 grams of marijuana. He argues that the presence of those drugs calls into question her character and credibility. He asks the question in his materials: “What knowledge if any did the complainant have of the presence of the safe and its contents?”

[26] With respect, I disagree. There is nothing in the RCMP Report to suggest that there is anything in the W.B. file relevant to the character and credibility of the complainant.

[27] The complainant alleges that the sexual assault occurred in April 2016. The RCMP found the cocaine in a safe in her apartment in June 1017. I agree with Mr. Wilson’s connection that the lack of a temporal connection is not determinative. That said, it is clear from the RCMP Report that the target of the search was W.B.. There is no other mention of the complainant in the RCMP Report. The complainant was not even arrested, let alone charged. There is no evidence that she had any knowledge or control over the drugs. They were, after all, in a safe. RCMP officers had to take the safe back to their detachment to open it. That suggests it was not open when the warrant was executed. It was not as though the cocaine was in plain view. There is no suggestion that the complainant is a drug dealer herself. There is also no suggestion in the RCMP Report that the complainant’s communications were intercepted or that she was the target of any surveillance. There is not even a suggestion that she was listed as a known person on the wiretap authorization. It is inconceivable that if the complainant were a player in a significant drug importing scheme, even a minor player, that she would have escaped charges when 80.5 grams of cocaine were found in her apartment. She was not charged – indeed, she was not even arrested. The RCMP Report does not suggest any actual involvement in drug trafficking or drug importing – there is no other mention of her. The only reasonable conclusion is that the RCMP concluded that she was not involved. She clearly associated with W.B., a drug dealer, but it does not seem to rise above that.

[28] In my respectful view, this one reference to the complainant does not justify a wholesale examination of pages of wiretaps, notes, and surveillance reports where there is not even a whiff that the complainant is mentioned in them. I cannot see how doing so would amount to anything other than a fishing expedition.

DISPOSITION

[29] The application is dismissed.

R.F. Goldstein J. Released: March 26, 2024

BETWEEN:

HIS MAJESTY THE QUEEN – and – D.H.

REASONS FOR JUDGMENT ON DISCLOSURE MOTION

R.F. Goldstein J.