COURT FILE NO.: CR-22-8690
DATE: 2024/04/29
BETWEEN:
HIS MAJESTY THE KING
D. Mack & E. Loignon-Giroux, for the
Crown
– and –
Randall Hillier
Applicant, Self-Represented
Applicant
Third Party Record Holders:
Ottawa Police Service: V. Stewart & B.
Estwick
City of Ottawa: M. Simms
House of Commons: O. Abergel
HEARD: April 23, 2024
ONTARIO SUPERIOR COURT OF JUSTICE
REASONS FOR DECISION ON THIRD PARTY RECORDS AND STINCHCOMBE APPLICATIONS
PARFETT J.
[1] This matter is an application by the accused, Mr. Randall Hillier for records in the possession of several organizations. Specifically, he seeks documents from the Crown Attorney’s office, the Ottawa Police Service, the City of Ottawa, the Parliamentary Protective Services (PPS), and the House of Commons. Several other organizations were named in Mr. Hillier’s Notice of Application, but as the communications sought were all with the Ottawa Police Service, it was agreed that for the purposes of this application, the Ottawa Police Service would be considered the record holder.
[2] Defence alleges that these records are relevant and necessary to make full answer and defence in his trial on charges of public mischief, counselling the commission of an offence, assault peace officer and obstruct peace officer.
[3] The records holders object to producing the documents on the basis that Mr. Hillier has failed to provide an evidentiary basis for determining whether the documents are likely relevant. In addition, the Crown Attorney’s office and the Ottawa Police Service are claiming either solicitor/client privilege and/or work product privilege with respect to some of the requested documents.
[4] The parties agree that if the court finds either solicitor/client privilege or work product privilege in relation to the documents held by the Crown Attorney and/or the OPS, that would be dispositive of the issue of production.
Background
[5] The context for this case is the Freedom Convoy protest in Ottawa that took place between January 22, 2022, and February 23, 2022.
[6] At the time of these incidents, Mr. Hillier was a member of the Ontario Provincial Legislature. He was also an ardent supporter of the aims of the participants in the Freedom Convoy protest.
[7] Mr. Hillier is alleged to have participated in the Freedom Convoy by honking truck horns, speaking at public venues, and posting on social media platforms. He is also alleged to have counseled his followers on social media to join the Freedom Convoy by bringing their vehicles to Ottawa, to call 911 as part of the protest and obstruct police. Finally, it is alleged that he attended on Parliament Hill and threw a metal gate at a Parliamentary Protective Services officer, then pushed the officer out of his way.
[8] In Mr. Hillier’s view, there are two issues at trial: first, whether the incidents alleged by the Crown occurred at all and, second, whether Mr. Hillier’s actions amount to criminal conduct in the context of the Freedom Convoy protest. Moreover, he is alleging political interference in
the decision to investigate and charge him. It is anticipated that this last assertion will be the subject of an abuse of process motion.
[9] Given the position Mr. Hillier takes in relation to the charges against him, he requests the following disclosure from the Ottawa Police Service (Stinchcombe application):
Name of the individual that is redacted, who Det. Geller updated on August 24, 2022 (1A) and names of Crown witnesses (1B);
Affidavit of Larry Andrade (2A), OPS Interview Plan of March 22, 2022 (2B) and emails between counsel for PPS and Det. Geller (2C );
Crown witness list (3A), bail report (3B), PPS Incident Report (3C), material provided electronically that could not be opened (3D) and bail checklist (3E);
Crown witness list;
Crown witness list (5A), duty book notes of Sgt. L. Carvalho(5B).[^1]
[10] Furthermore, Mr. Hillier requests the following information from third-party records holders:
- Copies of both Parliamentary Protective Service (PPS) officers (the alleged victims)
Cst. Fortin’s and Cst. Sargesons’ daily notebooks for January 29th 2022, together with their daily notebooks for the full period from January 28th 2022 to March 31st 2022 (for comparison purposes in terms of consistency of content) and with copies of the daily summary reports of their supervisor (both for January 29th, 2022, as well as for the full period from January 28th, 2022, to March 31st, 2022), which detailed the activities/incidents for all personnel under the control of the said supervisor, including Cst. Fortin and Cst. Sargeson and all communications of the said supervisor with any other person with respect to the matters herein;
- Copies of all correspondence from January 29th, 2022, and March 26th 2022,
between the alleged victims/witness Cst. Fortin and Cst. Sargeson and the Parliamentary Protective Service (Canada) and/or the Sergeant at Arms office making reference to or regarding their interactions on January 29th, 2022. In addition, all correspondence between these dates and offices regarding or containing the name “Hillier”.
- Copies of all correspondence and phone records regarding/containing the name and
or phrase “Hillier”, “Hillier tweet” between Detective Geller and/or Parliamentary Protective Services, Sergeant At Arms Office, The city of Ottawa, and its elected
[^1]: For ease of reference, each individual item in the items requested from the Ottawa Police Service was labeled by the Crown with a number and letter. That system is maintained in this decision.
councillors, mayor and employees, Ottawa Police service members Eric Beaurivage, Maureen Bryden, James W. Elves, Robert B. Mills, Julie A. Kavanaugh, Jamie A. Dunlop, John Steinbachs, Steve Bell and/or other officers or personnel involved in the investigation.
- Copies of all correspondence, text messages and phone records between January
29th 2022 and March 26th 2022 regarding/containing Hillier or Hillier tweet between employees of the Ministry of the Attorney General and members of the Ottawa Police services: Detective A. Geller, Eric Beaurivage, Maureen Bryden, James W. Elves, Robert
B. Mills, Julie A. Kavanaugh, Jamie A. Dunlop, John Steinbachs, Steve Bell and/or other officers or personnel involved in the investigation.
- All correspondence and phone records between employees of the Office of the
Integrity Commissioner with members of the Ottawa police services Detective A. Geller, Eric Beaurivage, Maureen Bryden, James W. Elves, Robert B. Mills, Julie A. Kavanaugh, Jamie A. Dunlop, John Steinbachs, Steve Bell and/or other officers or personnel involved in the investigation with Marieka Abbinette between January 29th and March 26th, 2022.
- All correspondence and phone records between employees of the Clerk of the
Cabinet Office of Ontario and/or the Privy Council Office (the “PCO”) of the Government of Canada with members of the Ottawa Police Services Detective A. Geller, Eric Beaurivage, Maureen Bryden, James W. Elves, Robert B. Mills, Julie A. Kavanaugh, Jamie A. Dunlop, John Steinbachs, Steve Bell and/or other officers or personnel involved in the investigation with Marieka Abbinette between January 29th and March 26th 2022.
- All video footage from all street-ground level cameras on all Parliamentary Precinct properties across from and surveillant of (the alleged crime scene) Queens Gate
West entrance onto Parliament Hill, recorded on January 29th between 11:00 and 11:30 hours.
All overhead video footage in the possession of the Parliamentary Protective Service (Canada), The Office of the Sergeant at Arms, taken by airborne drones and or other airborne vehicles on January 29th, 2022, between the hours of 11:00 and 11:30 hours.
Any/all summary reports created by or in the possession Parliamentary Protective Service (Canada), Speaker of the House of Commons office, and the Sergeant at Arms office regarding the Freedom/Truckers convoy of January-February 2022.
The original electronic copy of PPS incident report # PPS-SPP-2022-599 dated January 29th, 2022.
Legal Principles and Analysis
Stinchcombe disclosure2
[11] This type of disclosure is also called first party disclosure to distinguish it from information and records held by persons or organizations other than the investigative body. It relates to information concerning the investigation that is in the possession of the investigative agency and the Crown Attorney’s office.
[12] The principles surrounding first party disclosure are well understood and were not disputed by the Applicant.
[13] The Crown has a duty to disclose all relevant, non-privileged information in its possession or control. Disclosing this information informs the accused of the case to meet and allows them to make full answer and defence to the charges.[^3]
[14] The Stinchcombe regime applies only to material relating to the accused’s case that are in the possession or control of the Crown.[^4]
[15] The duty of disclosure furthermore must yield to privileged materials, subject only to the innocence-at-stake threshold test.Privileged material can take many forms, including confidential investigative techniques, confidential information while an investigation is ongoing, litigation privilege or work-product privilege, and solicitor-client privilege.[^5]
[16] The police have a duty to participate in the disclosure process where it acts as the investigating state authority. The investigating state authority has an obligation to provide the Crown with all material pertaining to its investigation of the accused. This includes both the
2 This material was drawn from the Respondent’s (Crown) Factum.
[^3]: R. v. Gubbins, 2018 SCC 44 at paras. 18-19. See also R. v. Jackson, 2015 ONCA 832 at para. 79, R. v. Quesnelle, 2014 SCC
46 at para. 11, R. v. McNeil, 2009 SCC 3 at paras. 17-18, 20 and R. v. Pascal, 2020 ONCA 287 at paras. 101-102.
[^4]: R. v. McNeil, supra at para 22.
[^5]: Stinchcombe, supra at pp. 336. See also R. v. McClure, 2001 SCC 14 at para 27, R. v. Richards, 1997 3364 (ON CA), [1997] O.J. No. 2086 (). 13 and Pascal, supra at para. 103.
“fruits of the investigation” and any other material that is “obviously relevant” to the accused’s case.
[17] The term “fruits of the investigation” refers to the police’s investigative files, which is generated or acquired during or because of the specific investigation into the charges against the accused. It does not include operational records or background information. The term “obviously relevant” captures information that is not within the investigative file but relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence.[^6]
[18] When the Crown is put on notice of “the existence of relevant information” in the hands of police or other Crown entities, it has a duty to make reasonable inquiries and to try to obtain the information where reasonably feasible. However, the Crown’s duty to inquire is not triggered where the notice is unfounded or fails to demonstrate relevance. As the Court of Appeal recently confirmed in Essel, “nothing in Mills, McNeil or Quesnelle requires the Crown to obtain and review the contents of records that do not fall within the ambit of first party disclosure and that have not been shown to be potentially relevant.”[^7]
O’Connor (Third-party) disclosure
[19] At the first stage of an O’Connor Application, the Applicant must demonstrate that the record sought are “likely relevant” to an issue at trial or the competence of a witness to testify.[^8]
[20] “Likely” relevance is a higher threshold than the threshold for Crown disclosure. For Crown disclosure, the meaning of ‘relevance’ is expressed in terms of whether the information may be useful to the defence. For third party production, material is likely relevant only if there
[^6]: McNeil, supra at paras. 14, 23, 59. See also Gubbins, supra at paras. 21-23, 29, 32-33, Jackson, supra at paras. 81-
82, 92-95 and Pascal, supra at paras. 104-107.
[^7]: McNeil, supra at para. 49. See also Quesnelle, supra at para. 12 and R. v. Essel, 2019 ONCA 918 at para. 52.
[^8]: R. v. O’Connor, [1995] 4 S.C.R. 441, 1995 51 at para. 19.
is a “reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.”[^9]
[21] An “issue at trial” can include evidence that is probative to the material issues in the case, evidence related to the credibility of witnesses, and reliability of other evidence in the case.^10
[22] Having passed the “likely” relevance threshold, the second stage of the analysis requires the judge to assess actual relevance and to weigh competing interests (i.e. the beneficial and harmful effects) in ordering production of records or parts of records to the accused. The judge must determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence.[^11]
[23] Production should only be ordered where the records, or parts of records, have probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, the harm to privacy rights of a witness or to any claim of privilege.[^12]
[24] When privilege is asserted on an O’Connor application, the issue of privilege should be determined at the outset and before determining the likely relevance of the records.[^13]
Solicitor/Client privilege
[25] The party asserting solicitor/client privilege must demonstrate on a balance of probabilities that; (a) the communication was between a lawyer and client; (b) it involved the seeking or giving of legal advice; and (c) it was intended to be confidential by the parties.[^14]
[26] Solicitor/client privilege exists any time a client seeks legal advice from his/her solicitor whether or not litigation is involved. The public interest underlying solicitor/client privilege is
[^9]: O’Connor, supra, at para. 22.
[^11]: O’Connor, supra at para. 30, R. v. Gubbins, 2018 SCC 44 at para. 27, citing R. v. McNeil, 2009 SCC 3 at para. 39.
[^12]: R. v. Bradley, 2015 ONCA 738 at para. 86, citing O’Connor, supra at para. 155.
[^13]: McNeil, supra, at para. 27.
[^14]: Solosky v. The Queen, 1979, 1979 9 (SCC), [1980] 1 S.C.R. 821 at p. 837.
that of ensuring that clients can speak fully and frankly to their lawyer without fear the information will be disclosed. The provision of legal advice requires the privilege.[^15]
[27] In the criminal context, it has been held that the Crown and the police service are two separate entities and the Crown Attorney’s office can and does provide legal advice to the police.[^16] Consequently, where the Crown Attorney offers legal advice to a police officer concerning a criminal investigation, that communication is protected by solicitor/client privilege.[^17]
[28] Once solicitor/client privilege has been established, an accused can only overcome that privilege if he/she can demonstrate: first, that the information sought in the privileged communications is not available from any other source, and second, that he/she is otherwise unable to raise a reasonable doubt (innocence at stake).[^18]
[29] In the present case, both Crown and OPS have indicated that communications between the Ministry of the Attorney-General (for the purposes of this matter – the Crown Attorney’s Office) and the police are covered by solicitor/client privilege. Mr. Hillier did not dispute that characterization, nor did he proffer any evidence to justify disclosing privileged documents.
Consequently, none of the requested communications will be disclosed.[^19]
[30] Additionally, the Crown opposed the production of emails between the Parliamentary Protective Services counsel and the OPS based on solicitor/client privilege. Mr. Hillier did not dispute that characterization of these documents and therefore, these emails will also not be produced.[^20]
[^15]: Ibid at para. 28.
16 R. v. Campbell & Shirose, 1999 676 at paras. 29 and 49.
17 Ibid at para. 54.
18 R. v. Rutigliano, 2015 ONCA 452 at para. 25.
19 Paragraph 9 of Applicant’s Notice of Application.
20 Item 2C (Emails from PPS counsel)
Work Product Privilege
[31] Work Product privilege is similar to litigation privilege. It is more broadly based than solicitor/client privilege. It applies to communications of a non-confidential nature between the Crown, the police and third parties, and it applies only in the context of litigation itself and is ‘based upon the need for a protected area to facilitate investigation and preparation of a case for trial’.[^21]
[32] As stated in R. v. Mullin,
Work product privilege, as Himel, J. noted at para. 28 [of R. v. Armstrong, 2005 63811 (SCJ)] citing R. v. Trang, 2001 ABQB 825, [2001] A.J. No. 1270, “is usually in the form of written notes or material that involves the thought processes or considerations of Crown counsel in preparation of its case. In other words, the product is the result of an analysis of the mind. Work product does not apply to matters of fact.”[^22]
[33] There are three documents that the Crown has indicated are, in their view, covered by work product privilege.[^23] I have reviewed those documents and determined that the ‘Interview Plan’ falls within the parameters of work product, and it will not be disclosed. The bail report contains both factual information and considerations for the bail hearing. It will be disclosed after redaction for any content that reflects considerations regarding the bail hearing. The final item is a Bail Hearing Checklist. It does not contain any information that could be viewed as the ‘thought processes or considerations of Crown counsel’ and therefore, it will be disclosed.
[^21]: Blank, supra. Note 8 at para. 28.
22 2011 ONSC 6251 at para. 29.
23 Items 2B (Interview Plan), 3B (Bail Report) and 3E (Bail Checklist).
Stinchcombe disclosure
[34] The remaining items in Mr. Hillier’s list of requested Stinchcombe disclosure have either previously been disclosed, are not relevant, have been disclosed again in hard copy or do not exist.[^24]
Third-party disclosure
[35] As noted earlier, Mr. Hillier has requested a large quantity of information potentially in the possession of third parties. At this stage of the application, Mr. Hillier is obliged to demonstrate that the information he seeks is likely relevant to an issue at trial. For the most part, he has been unable to do so.
[36] However, there some of Mr. Hillier’s requests are directly relevant to his trial. As noted earlier, his position is that either the incidents did not occur or, if they did occur, they did not constitute criminal behaviour.
[37] It is against that background that I find Mr. Hillier has demonstrated the likely relevance of the following items and they will be disclosed to the court:
• Duty book notes from Cst. Fortin and Cst. Sargeson for January 29, 2022. Additionally, any reports prepared by them and sent to their immediate superior for the same date;[^25]
• Mr. Hillier provided evidence of several cameras in the vicinity of where the alleged assault on January 29, 2022 took place. The Crown has undertaken to find out from PPS whether there is any additional footage from that date, other than what was previously disclosed; and[^26]
24 Items 1A (name of person contacted by the investigator was disclosed), 1B (Crown Witness list, previously disclosed), 2A (Affidavit of Larry Andrade, public record but provided in hard copy), 3A (Crown Witness list, previously disclosed), 3C (redacted page of PPS Incident Report, not relevant and not disclosed), 3D (materials received electronically that could not opened. Provided in hard copy), 4 (Crown Witness list, previously disclosed), 5A (Crown Witness list, previously disclosed), 5B (Sgt. Carvalho’s notes do not exist) and 15 (same item as in 3C).
25 From paragraph 6 of Applicant’s NOA.
26 From paragraph 12 of Applicant’s NOA.
• Mr. Hillier also provided evidence that OPS used drones to videotape activities during the Freedom Convoy. The Crown has undertaken to determine whether OPS has any drone footage of the incident of January 29, 2022.[^27]
[38] Mr. Hillier also seeks information that is more properly relevant to an abuse of process motion. In other words, he believes that the criminal investigation against him was politically motivated. Mr. Hillier conceded in argument that much of this information would not assist him at trial. Even though these requests should have been brought in the context of an abuse of process application, in my view it is expedient to deal with it now instead of requiring all the third parties to return to court to make the same arguments they have already made.
[39] Consequently, the following items will also be disclosed to the court:
• Copies of any communications between Cst. Fortin and Sargeson or their immediate superior with the Sergeant at Arms office in relation to the incident of January 29, 2022;[^28]
• Any communications between Det. Geller and Sergeant at Arms office, the Office of the Integrity Commissioner, Mr. Eli El-Chantiry, Clerk of the Cabinet Office of Ontario and/or the Privy Council Office (the “PCO”) of the Government of Canada.[^29]
[40] Mr. Hillier has failed at this time to demonstrate any likely relevance to any of his other requests for information.
[^27]: From paragraph 13 of Applicant’s NOA.
[^28]: From paragraph 7 of Applicant’s NOA.
[^29]: From paragraphs 8, 10 & 11 of Applicant’s NOA.
Conclusion
[41] Once the items listed for disclosure are provided to the court, they will be reviewed to determine whether there is any relevance to the issues at trial or to a possible abuse of process motion.
Released: April 29, 2024
Parfett J.
Released: April 29, 2024
COURT FILE NO.: CR-22-8690
DATE: 2024/04/29
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Randall Hillier
Applicant
REASONS FOR DECISION ON THIRD PARTY RECORDS AND STINCHCOMBE APPLICATIONS
Parfett J.