COURT FILE NO.: 19-6279 DATE: 2024/05/21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Donald Musselman Accused

Counsel: Matthew Geigen-Miller and Lisa Miles for the Crown Leo Russomanno and Kim Hyslop for the Accused

HEARD: April 10, 2024

RULING ON DISCLOSURE MOTION

ANNE LONDON-WEINSTEIN J.

[1] The defence applies for disclosure of emails exchanged between Crown counsel over which Crown counsel asserts litigation privilege. Some history regarding the unfolding of this trial is necessary to understand the context of this application. This was a very difficult trial. Several unusual and some unexpected issues arose both during the trial and even post-verdict. It has often been said that the only predictable feature of a criminal jury trial is its unpredictability. That was certainly true in this case.

History of the matter leading to Disclosure Application:

[2] The Applicant was convicted of second-degree murder by a jury on December 20, 2023 in the shooting death of Markland Campbell on June 7, 2019. The trial began on September 25, 2023.

[3] During the trial, the defence called an alternate third-party suspect, I.A., who testified that he shot and killed Markland Campbell. I.A. did not waive privilege when he testified. He was 14 years old at the time of the shooting.

[4] I.A. testified over the course of several days and during his cross-examination, questions were posed to him by the Crown which required both clarification and correction by the court to the jury.

[5] The Crown suggested to I.A. that he learned about aspects of the case through improper means, including accessing a laptop belonging to Mr. Musselman’s former defence counsel, Ms. Calvinho, when she was not present.

[6] There was a good faith basis for this line of questioning. It was based on a series of interceptions of I.A.’s conversations with Mr. Musselman and with others, dated in March and April of 2020.

[7] In one intercept, I.A. advises the Applicant that he has attended Ms. Calvinho’s office and he had “seen everything”.

[8] He opined that the police did not know where the crime scene was located. He indicated that all the police have is the evidence of Reanna Campbell. Ms. Campbell was the daughter of the deceased and was present at the shooting. She was a central Crown witness and identified Mr. Musselman as the shooter.

[9] I.A. is recorded arranging to meet with David Vizigiro, a Crown witness who was also present at the shooting. Mr. Vizigiro testified for the Crown at the preliminary hearing. The Crown was clearly focused on the period in March of 2020 when I.A. was intercepted. This time frame was also when I.A. was scheduled to testify for the Crown.

[10] Unfortunately, the Crown’s question was not sufficiently specific. The Crown did not specify that there was no basis in March and April in 2020, when his conversation was being captured by intercept, for his knowledge of certain aspects of the case.

[11] This was problematic, as there was an alternate basis for I.A.’s knowledge of the case at the time he testified. The Crown’s suggestion to I.A. that because he had not been charged in the homicide of Markland Campbell, his lawyer would not have received disclosure in the case, and therefore he had no legitimate basis for some of his knowledge about the case was misleading.

[12] In fact, Malcolm Savage, the Crown who was prosecuting I.A. for the Gilmour Street homicide, sent the third-party suspect material filed by Ms. Calvinho, Mr. Musselman’s lawyer at the time, to Diane Magas, counsel for I.A. This material was sent on September 28, 2021, some 18 months after Mr. Musselman’s preliminary hearing, when I.A. was intercepted discussing what he said he had seen on Ms. Calvinho’s computer. The material was sent as Ms. Magas was planning to bring a bail application for I.A. Ms. Miles, the Crown prosecuting Mr. Musselman, sent the material to Mr. Savage. Mr. Geigen-Miller was copied on that email.

[13] Mr. Russomanno learned of an email sent to I.A.’s counsel by Mr. Savage. The email contained an attachment which included the Notice of Application of Third-Party Suspect, the Transcript of Discovery of David Vizigiro and the Affidavit of an employee of Ms. Calvinho.

[14] The email from Malcolm Savage to Ms. Magas was immediately disclosed to Mr. Russomanno and Ms. Hyslop on November 20, 2023.

[15] Defence counsel sought disclosure of that email on the basis that Crown counsel was or should have been aware of the fact that I.A.’s counsel had been sent information about the case prior to I.A. testifying in this trial in November of 2023.

[16] The defence application indicated that the defence sought disclosure in order for a proper assessment to be made as to whether the questions put to I.A. were misleading, in order to impact the permissible scope of submissions to the jury and the charge to the jury. The defence noted that it would be expected that Crown counsel would ask the jury to place less weight, or no weight, on the evidence of I.A. because he had access to disclosure. In his evidence, I.A. denied reviewing the bail materials.

[17] As a result of what had transpired, the parties filed an Admission which was read to the jury, made Exhibit 65 and repeated to them in my final instructions to the jury. That admission read as follows:

1. On September 28, 2021, another Crown Attorney from the Ottawa Crown Attorney’s office sent Ms. Magas materials relating to the Donald Musselman case. These materials included documents prepared by defence which made reference to a knife being located approximately 20 feet away from where Mr. Campbell had fallen to the ground and that it was the defence theory that this knife was brandished when Mr. Campbell confronted the group of men on June 7, 2019. The materials sent also included references to other details found in the Donald Musselman disclosure and included the transcript of discovery evidence of David Vizigiro.
2. The materials were sent to Ms. Magas in relation to a case of I.A., specifically for his bail hearing. As a result of these documents being sent to Ms. Magas for I.A.’s bail hearing, he would have known information about some of the evidence in Mr. Musselman’s case.

[18] The relevance of the emails between Crown counsel regarding the September 28, 2021 email to Ms. Magas for the original purpose for which they were sought was reduced in light of the above admission made that I.A. would have had a legitimate basis for his knowledge as of September 28, 2021.

[19] However, it was an error for the Crown to suggest to the witness in front of the jury that his lawyer had no basis for receiving disclosure, given that this disclosure had, in fact, been provided by the Crown office, not in March of 2020, but in September of 2021, which was still before I.A. testified. Counsel must be cautious, in plotting a cross-examination and putting questions to a witness, that questions are sufficiently specific so as not to be misleading to the jury. Since the defence did not know about the prior disclosure at the time the question was posed, the defence had no ability to object to the question. This was unfair to the defence.

[20] Mr. Geigen-Miller indicated at the time that he must have forgotten about the email on which he was copied which indicated that the third-party suspect materials had been sent to Ms. Magas. In fairness to Mr. Geigen-Miller, two years had elapsed from the date the email was sent, to the date of his cross-examination of I.A.

[21] The defence now seeks all of the emails between Ms. Miles, Mr. Geigen-Miller and Mr. Savage related to transmission of the third party-suspect materials to Ms. Magas, not for the initially stated purpose of clarifying jury instructions, but in support of an abuse of process application which was not able to be heard during this trial, but which the defence will argue on appeal. [^1]

[22] Unfortunately, we faced a number of delays in this trial, and it occupied twice as much time as had been originally allotted. The jury, despite my advising them initially that the trial may take longer than six weeks, had now been sitting for almost twice as long as originally anticipated.

[23] As we approached the end of the trial there were several legal issues which had to be dealt with prior to the charge to the jury. The issue of whether there was an air of reality to self-defence (defence of another person), and an air of reality to provocation had to be argued and ruled upon. The issue of whether subjective factors could be considered on the objective standard for both defence of another person and provocation had to be argued and ruled upon.

[24] At the last moment, it also became apparent that the 2015 amendment to provocation with the new requirement that the provoking act be an indictable offence punishable by five years’ imprisonment was an issue the court would have to address prior to charging the jury. Unfortunately, since it was not clear that there would be an air of reality to provocation, the issue of the constitutional status of the 2015 amendment was not addressed as a pre-trial motion.

[25] In R. v. Simard, 2019 BCSC 531, 375 C.C.C. (3d) 107, leave to appeal refused, [2019] S.C.C.A. No. 201, and Fredette c. R., 2019 QCCS 4116, 59 C.R. (7th) 173, the amendment was declared unconstitutional. Counsel and I were of the initial view that this issue had not been dealt with in Ontario. However, after some research, defence counsel presented the court with a decision of Laliberté J., from Ontario, which also held the provision to be unconstitutional: R. v. Mujber, [2020] O.J. No. 6126 (S.C.). As a result, I made a ruling that we would use the former, pre-amendment law regarding provocation in my jury instructions. On April 11, 2024, the Court of Appeal for Ontario declared the provision constitutional: R. v. Brar, 2024 ONCA 254.

[26] In addition, the Supreme Court of Canada in R. v. Khill, 2021 SCC 37, 462 D.L.R. (4th) 389, had provided reasons clarifying the new s. 34, being the Criminal Code, R.S.C. 1985, c. C-46, provision relating to self-defence. This had to be taken up with counsel as to how they fit in this case, particularly how to define the person’s role in the incident where Mr. Musselman testified that he was not the shooter, but left it open to the court to find that there was an air of reality to defence of another person.

[27] There were also several other thorny issues which the court required direction from counsel as to how to treat in my final instructions to the jury. I indicated I would need a great deal of guidance regarding what to say about some of the more contentious issues which arose in the trial, without drawing undue attention to them.

[28] As a result, the court indicated on December 2, 2023, that we would not deal with the disclosure application until the jury was charged as we were running out of time prior to our charge conference and my priority was getting the case to the jury.

[29] Counsel had several suggested changes to the charge which were largely implemented. However, the disclosure motion was not heard while the jury was deliberating. From a trial management perspective, it would have been preferable if the court ensured that the motion was heard within the seven days that the jury was deliberating. The crown did not file a response until January 11.

[30] The court was also mistakenly of the view that it retained jurisdiction to hear the abuse of process application post-verdict. In a judge alone trial, this is true and there are many good and practical reasons why this is so. It is at the end of a trial where prejudice has crystallized and can be assessed: see R. v. Campbell, [1999] 1 S.C.R. 565.

[31] However, in a jury trial, the court has no jurisdiction to entertain a Charter motion (aside from certain narrow exceptions such as an 11(b) application to stay a charge for delay, or in the case of entrapment). The court lacks jurisdiction to rule on anything which would interfere with the jury’s verdict: R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal refused, [2015] S.C.C.A. No. 478 (Bains), and [2015] S.C.C.A. No. 498 (Pannu). As a result, the defence was deprived of the opportunity to argue its abuse of process application.

[32] In truth, from a trial management perspective, it is difficult to see how we could have conducted the abuse of process application prior to verdict with this jury. The Crowns in this case would be witnesses on the motion. Other counsel would have to step in for the motion. The hearing would be lengthy and the issues somewhat complex. The jury was deliberating. We lost a juror in part due to deliberations continuing so close to the Christmas break. However, these factors were not in the court’s mind at the time the decision was made to hear the abuse of process motion post-verdict after the disclosure motion. Given that neither the crown nor the defence pointed out the loss of jurisdiction issue at the time, I am of the view that both the court and counsel were operating on the wrongly held belief that the court had jurisdiction to deal with the abuse of process application post-verdict.

[33] Fortunately, the issue can be dealt with at the Court of Appeal, which will be reviewing this matter. And without minimizing the error made by this court, in this case there are valid reasons, given the conduct of one of the jurors post-verdict, for the Court of Appeal to hear the abuse of process application. For example, the reviewing court will have to consider whether the presumption that the jury followed corrective instructions has been rebutted given the conduct of Juror Number 5 and her potential influence on the jury.

[34] Post-verdict it was learned that Juror Number 5 attended the police station and gifted Det. Chris Benson and Det. Guy Seguin, the detectives in charge of this case, with two Christmas cards and challenge coins.

[35] All parties agreed that a post-verdict inquiry could not be held without infringing on the sanctity of the jury deliberation process and that evidence would be heard from Det. Benson and Det. Seguin regarding receipt of the cards and coins, with the understanding that this would be done to prepare a record for the appellate court to review this matter.

[36] An evidentiary hearing was conducted. One of the coins, which was Exhibit 2, is shaped in the number 6. A thin blue line stretches down the coin. Emblazoned on the blue line are the words: “Brotherhood I got your”. I understood, after hearing the evidence of Detectives Benson and Seguin, but particularly Det. Benson, that the coin expressed support for police. To stand six for someone is to have their back.

[37] The two military figures have guns pointing away from each other and their backs are toward each other. A cut out of a shield, as in a police badge or a military badge, forms the base of the two gun pointing figures. On the back of the coin, it reads: “Blessed are the Peacemakers for they shall be called Children of God”.

[38] The second coin gifted to the detectives by Juror Number 5 bears the image of the comic book character, the Punisher, complete with a skull culminating in a pistol and an assault rifle. The inscription on this side of the coin reads at the top of the coin: “God will judge our enemies”. The bottom of the coin reads: “We will arrange the meeting”. The flip side of the coin has a photo of a helmeted police officer with his back facing outward. The word “police” is emblazoned across his back. The coin reads: “I own it forever, the title police. It cannot be inherited nor can it be purchased”. The inner ring of the coin reads: “I have earned it with my blood, sweat and tears”.

[39] The Christmas card to Det. Benson reads in the typeface of the card: “Embrace the beauty of the season”. In handwriting it reads: “Stay safe. I appreciate everything you do #5”.

[40] A review of the police station surveillance video indicated that it was Juror Number 5 from the Musselman trial who had delivered the coins shortly after a verdict had been delivered in this case. The two detectives in this case quite properly disclosed this information to the Crown, who disclosed it to the defence. The coins and cards have been made exhibits for review by the appellate court.

[41] The parties agreed that Det. Benson and Det. Seguin would testify in order to create a record for appellate review, but that it would be an improper intrusion into the deliberative process of the jury for the court to conduct an inquiry: see R. v. Godwin, 2018 ONCA 419. The impugned actions of Juror Number 5 arose post-verdict, which limited the court’s options to creating a record for appellate review: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at paras. 55-56; Bains, at para. 72. Any inquiry would have necessarily probed into an impermissible examination regarding matters protected by the jury secrecy rule at common law and prohibited under s. 649 of the Criminal Code, which are intrinsic to the deliberation process, including jurors’ “minds, emotions or ultimate decision”: Godwin, at para. 10, citing R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344, at paras. 59-61, 77.

[42] The parties agreed that the court had jurisdiction to hear the disclosure application given that the results of the disclosure motion do not impact the verdict. In R v. P.B., [2016] ONSC 325, para 40,41 the court declined to make a disclosure order post-verdict as it was not necessary, not because the court lacked jurisdiction. However, if I am incorrect and have no jurisdiction to order disclosure post-verdict, the emails which I found to be not disclosable have been placed under seal for review by the appellate court.

[43] In reviewing the emails in question, I reviewed them from the perspective of their relevance on an abuse of process application. While the defence did not file an abuse of process application, this is understandable, since the defence sought the emails to see if they would augment any existing basis for an abuse of process application. It was clear to this court that the defence intended to bring the application once the disclosure application was completed.

[44] Despite the fact that no abuse of process motion was filed, the court was aware of which issues the defence would argue formed the basis for the application, based on submissions at the time these issues arose. Of course, given what transpired with Juror Number 5, there may be related issues which a reviewing court will address.

[45] In considering the disclosure application of the emails, I considered it in light of the following record:

• It was suggested to I.A. that Ms. Magas had no basis to receive disclosure as she was not the lawyer on the case without stipulating the relevant time frame of March and April 2020, since third-party suspect materials were sent to Ms. Magas as of September 2021.
• Questions were put to I.A. which, in my view, had the tendency to undermine the role of both his defence counsel, Ms. Magas, and Ms. Calvinho, Mr. Musselman’s lawyer at the time. This was particularly significant in this case as the jury had already sent a note to the court suggesting that Mr. Russomanno had surreptitiously communicated with them through a note. Mr. Russomanno did no such thing. It was explained to the jury that they had observed a question which he put verbatim to Reanna Campbell: “YOU FALSELY IMPLICATE PEOPLE”. The correction I read mid-trial was repeated in the final instructions, indicating that the jury was mistaken in what they had seen, and that we had reconfigured the courtroom to avoid any chance that they may see his cross-examination notes again. The court also provided a lengthy correction regarding the line of questioning which tended to undermine the role of I.A.’s counsel, out of concern that this line of questioning may exacerbate the jury’s already expressed mistrust of defence counsel.
• There were occurrence reports and criminal entries relating to I.A. which were disclosed late to the defence. At one point, the Crown expressed concern regarding I.A. tailoring his evidence. The court explained that this concern had been addressed and dismissed in R. v. Stinchcombe, [1991] 3 S.C.R. 326.

[46] The chronology of how these matters unfolded has been set out in the Timeline of Events Relevant to the Disclosure Motion filed by the defence and the Timeline of Events Relevant to the Disclosure Motion Missing from Defence Timeline filed by the crown. It is not necessary to review the entire chronology here, as that will be a matter for the reviewing court which hears the abuse of process application. It is also not necessary to review the lengthy corrections the court provided to the jury regarding these various matters; they form part of the record. Suffice to say, this court took a broad view of relevance when reviewing the emails that fell within the scope of the disclosure application. The times, dates, senders and recipients of these emails were listed in Appendix A of the Crown’s Response.

Analysis regarding relevance of emails sought:

[47] I reached the following conclusions with respect to the emails sought in this case:

• The emails were created with the dominant purpose of litigation in relation to the prosecution of I.A. They also related collaterally to the prosecution of Donald Musselman since the content shared related to the third-party suspect material.
• Litigation privilege gives rise to an immunity from disclosure where the dominant purpose is preparation for litigation: Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521.
• Litigation privilege is unlike solicitor-client privilege, in that it is neither absolute in scope, nor permanent in duration: Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 37.
• Litigation privilege ceases to exist where the litigation has ended, but not if related litigation remains pending or may be reasonably apprehended: Blank, at para. 38.
• I.A. has appealed his conviction for first degree murder and three counts of attempted murder.
• Therefore, the litigation privilege has not expired: see R. v. Codina #7, 2018 ONSC 1096, 408 C.R.R. (2d) 1, at para. 46; Di Nunzio v. Di Nunzio, 2022 ONSC 3901.
• Litigation privilege is not a black hole from which evidence of one’s own misconduct can never be exposed to the light of day: Blank, at para. 44.
• Even where the materials sought would otherwise be subject to litigation privilege, the party seeking their disclosure may be granted access to them upon a prima facie showing of actionable misconduct by the other party in relation to the proceedings with respect to which litigation privilege is claimed. Whether privilege is claimed in the originating or in related litigation, the court may review the materials to determine whether their disclosure should be ordered on this ground: Blank, at para. 45.
• The criminal context, where an individual’s liberty is at stake, must be distinguished from materials that may not be disclosable in a civil proceeding. As noted in Stinchcombe, at p. 340: “The trial judge might also, in certain circumstances, conclude that the recognition of an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege.”

[48] The court reviewed the emails in question. There is nothing in the emails which would be potentially helpful to the defence on an abuse of process application. One of the emails which was disclosed was highlighted in yellow. This was the email which the Crown indicated was not relevant to this motion. I accepted that submission from the Crown, and further accepted that it was provided to the court in the interests of completeness.

[49] The test for when documents which are privileged can be disclosed in relation to allegations of abuse of process has been discussed in some of the authorities provided to me by the defence. In R. v. Basi, 2009 BCSC 772, 244 C.C.C. (3d) 537, the court reviewed some of the authorities.

[50] In R. v. Murrin, 1999 CarswellBC 3197 (S.C.), the test for disclosure was described as “a real and substantial possibility of bad faith or improper motives on the part of Crown counsel”; see also R. v. Malik, 2002 BCSC 1679, and R. v. Pal, 2007 BCSC 44, 228 C.C.C. (3d) 312.

[51] There was nothing in the emails which I reviewed which evidenced any Crown misconduct. There was no evidence of a real and substantial possibility of bad faith or improper motives on the part of Crown counsel.

[52] As indicated, given that this disclosure motion does not touch on the verdict rendered by the jury, the court was of the view that it retained jurisdiction to hear the disclosure motion. After all, the disclosure obligations of the Crown continue post verdict. However, if I am wrong in this regard, the emails form part of the record which is available for review.

Released: May 21, 2024 Anne London-Weinstein J.

[^1]: The intercepts which provided the basis for impeaching I.A. were made in relation to the investigation of I.A. in relation to the January 8, 2020 homicide committed in a residence on Gilmour Street (“Gilmour Street homicide”). Mr. Musselman was not alleged to have been involved in the Gilmour Street homicide. The Gilmour Street homicide involved a gunman opening fire on a group of five men who were sleeping at an apartment on Gilmour Street that had been rented as an Airbnb. The shooting injured three men and killed one. A fifth man escaped without injury. I.A. was charged with one count of first-degree murder and three counts of attempted murder in the Gilmour Street homicide. I.A.’s role in the shooting was not that he was the shooter, but that he aided and abetted the shooter by notifying him where to find the victims, and then guided the shooter to the apartment. The shooter remains at large.