Reasons for Decision

Application to Quash Subpoenas

Court File No.: CR 25-14
Date: 2025/04/28
Ontario Superior Court of Justice
Between:
Justin Lafleur and Rodney Degray, Applicants
and
M.D., Respondent

Appearances:
Christopher P. Morris, for the Applicants
M.D., In Person
Brandon Fragomeni, for the Special Investigations Unit, and His Majesty the King in Right of Ontario

Heard: April 15, 2025
Justice: Brian Holowka

Overview

[1] On August 8, 2021, there was an interaction between the Respondent, Mr. M.D., and the Applicants, Mr. Justin Lafleur and Mr. Rodney Degray. The Applicants were police officers at the time. The interaction between the parties started at an intersection in Cornwall, Ontario and continued at the Cornwall Community Hospital.

[2] M.D. alleges that while at the Cornwall Community Hospital, he was searched by the police, during which time he was sexually assaulted. On August 8, 2021, the Cornwall Police Service (CPS) informed the Special Investigations Unit (SIU) that they had information in which it was alleged that a CPS officer had sexually assaulted M.D. As a result of receiving this information, the SIU investigated. Based on his assessment of the evidence, the SIU Director found that there were no reasonable and probable grounds to believe that the identified subject official committed a criminal offence in connection with the allegation.

[3] Mr. M.D. seeks judicial review of the Director of the SIU’s decision by way of a mandamus application. On February 5, 2025, M.D. issued a Notice of Application seeking the following relief:

a. An order of mandamus ordering the Special Investigations Unit to lay charges against the police;
b. An order of mandamus allowing the application and granting the quashing of the SIU’s final decision of case No. 21-OS-250, reversing the decision of the SIU to not lay charges against CPS’s Mr. Lafleur and Mr. Degray; and
c. An order of mandamus designating the SIU audio interviews as evidence of a crime and not privileged information, personal opinion, or private information.

[4] A hearing for the mandamus application is scheduled for May 1, 2025, in Cornwall, Ontario.

[5] In support of his mandamus application, M.D. caused three subpoenas to be issued against the two police officers to attend and give evidence at the mandamus application hearing as follows:

a. A subpoena to witness Mr. Lafleur, dated February 10, 2025;
b. A subpoena to witness Mr. Degray, dated February 10, 2025; and
c. A subpoena to witness Mr. Lafleur, dated March 3, 2025, to bring the “August 8, 2021 Angela Lepage cellphone video entered in axon” to the mandamus application.

[6] The two police officers, Mr. Lafleur and Mr. Degray, have applied under Rule 43.01 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) for an order quashing the three subpoenas.

[7] The onus on this application is on the party seeking to uphold the subpoenas. In this case, the sole issue is whether M.D. has established that the two police officers under subpoena are likely to have evidence material to the determination of the mandamus application.

[8] For the reasons that follow, considering the nature of the mandamus application, M.D., as the party seeking to maintain the issuance of the subpoenas, has not established that the two officers are likely to have material evidence to offer. As such, the application to quash the three subpoenas is granted.

Factual Background

[9] On December 8, 2021, a lead investigator with the SIU wrote to M.D. to advise him that the investigation by the SIU into the conduct of the identified subject official concerning the events of August 8, 2021 had been completed, and that no further action was being contemplated. M.D. was provided with a copy of the SIU Director's report concerning the SIU’s investigation and conclusion. The report was dated December 8, 2021.

[10] The Director’s report stated that, in coming to his decision, several records provided by the CPS were reviewed, including the relevant arrest and use of force reports. An audio recording made by M.D. surreptitiously during the events was provided to the SIU by M.D. The recording was transcribed and reviewed as part of the investigation.

[11] The report stated that the investigation included the following interviews conducted by the SIU:

a. The interview of M.D. on September 9, 2021;
b. The interview of a witness official (the arresting officer) from the CPS on September 27, 2021;
c. The interview of two civilian witnesses on October 25, 2021; and
d. The interview of the identified subject official on November 22, 2021.

[12] The decision of the Director of the SIU was summarized in the Director’s Report as follows:

On August 8, 2021, the CPS contacted the SIU to report that they were in possession of information in which it was alleged that a CPS officer had sexually assaulted a male – the Complainant – following his arrest on August 8, 2021. The SIU initiated an investigation and identified the SO as the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the allegation.

A sexual assault consists of an assault with any of its definitions in the Criminal Code that is sexual in nature and violates the sexual integrity of the victim: R v Chase, [1987] 2 SCR 283.

I am not satisfied that the evidence of the alleged sexual assault is sufficiently cogent to warrant being put to the test by a trier-of-fact. The SO denies that he touched the Complainant inappropriately. That is, while the SO acknowledged that he searched the Complainant in the interview room and retrieved a recording device from inside the front of his shorts, the officer did not grope or fondle the Complainant’s penis or scrotum. I find it implausible that an officer would molest the Complainant in the fashion he describes given the presence of a camera in the room, which the SO would have had every reason to believe was operational, and a hospital security guard just outside the open door, who could have easily observed or walked in on any misconduct of any sort. For these and other reasons, it would be unwise and unsafe to rest charges on the strength of the allegation alone.

In the result, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the sexual assault allegation. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.

[13] M.D. was criminally charged concerning some of the events of August 8, 2021 (Court File Nos. 21C 1594 and 21C 1595). I am advised by the parties that those charges were stayed by the Crown prosecutor partway through the trial. The existence of this prosecution is irrelevant to the question before me, except that during the proceeding leading to the trial, M.D. brought a motion for the production of SIU records. On September 28, 2023, Justice Kinsella ordered the SIU to produce the following records to M.D., subject to several terms and conditions:

a. 001-Intake Report-2022-03-15.pdf
b. 008-Synopsis-Dempster, Mr. Nathaniel-Initial-2021-10-26.pdf
c. 009-Synopsis-D., Mr. M.-Initial-2021-09-12.pdf
d. 010-Synopsis-Lafleur, Cst Justin-Initial-2021-09-27.pdf
e. 011-Synopsis-Ware, Ms. Sandra-Initial-2021-10-25.pdf
f. 012-Synopsis-Degray, Cst Rodney, William-Initial-2021-11-22.pdf
g. 013-Medical Release-Cornwall Community Hospital.pdf
h. 023B-Director's Report-21-250-Cornwall-SA.pdf
i. 029-Incoming-Letter from M.D. (2 pgs) Addressed to R. Deering-2021-08-20.pdf
j. 030-Incoming-FOI Req from M.D.-Addressed to R. Deering (envelope rec'd Aug 31, 2021).pdf
k. 031-Incoming-FOI Req from M.D.-Addressed to R. Deering-2021-08-24.pdf
l. 032-Incoming-Cheque from M.D. made out to SIU-2021-08-25.pdf
m. 033-Incoming-Disclosure Request from M.D. Rec'd 2021-12-23.pdf
n. 040-Incoming-MAG-2022-00133 Request-2021-12-28.pdf
o. 042-Incoming-Request for Records (FOI) from M.D.-2022-02-11.pdf
p. 048-SIU Witness List-2022-02-17.pdf
q. 052-Investigative Notes-Colton.pdf
r. 053-Investigative Notes-McFarlane.pdf
s. 056-Investigative Notes-Deering.pdf
t. 057-Investigative Notes-Dempsey (Mgr)
u. 058-Audio Statements
v. 068-Contents of Green Binder Rec'd from AP (USB Attached to Inside Cover).pdf

[14] During the hearing of the motion to quash, Counsel for the SIU and The King in Right of Ontario advised the court that the “August 8, 2021 Angela Lepage cellphone video entered in axon” sought to be put before the court for the mandamus application by M.D. by way of the issuance of the subpoena for Mr. Lafleur, dated March 3, 2025, was contained within the Respondent’s Record yet to be served and filed. At the time of the hearing of the motion to quash the subpoena, M.D. was not yet aware of the contents of the SIU’s Record.

Analysis

[15] The Superior Court of Justice, “as a superior court of criminal jurisdiction, has jurisdiction to quash the subpoenas if they should not have been issued by the justice of the peace. The burden of the proof is not on the applicant-Crown to establish the potential witnesses do not have relevant, material and admissible evidence. Rather, the evidentiary and persuasive burdens are on the respondent-accused to satisfy the court they probably have such evidence to give in the application”: R. v. Brown, [1997] O.J. No. 6171 (Gen. Div.), at pp. 10-11. See also R. v. Harris, [1994] 93 C.C.C. (3d) 478 (Ont. C.A.), at pp. 479-480, citing Re Stupp and the Queen (1982), 70 C.C.C. (2d) 107 (Ont. H.C.), at p. 121.

[16] As such, M.D. bears the onus to establish that it is likely that the proposed witnesses can give relevant evidence: Harris, at p. 480.

[17] The assessment of whether Mr. Lafleur and Mr. Degray likely have relevant evidence to provide to the court must be viewed in the context of the upcoming mandamus application. In the present circumstances, the SIU Director caused an investigation to be conducted pursuant to s. 15(1) of the Special Investigations Unit Act, 2019, S.O. 2019, c. 1, Sched. 5. Both Mr. Lafleur and Mr. Degray were interviewed as part of that investigation.

[18] In seeking to have Mr. Lafleur and Mr. Degray testify at the mandamus application, M.D. seeks to establish that the officers were lying or that they provided incorrect information during their interviews conducted by the SIU. M.D. strongly disagrees with the decision made by the SIU Director not to lay charges, and alleges that the decision reflects bias and a dishonest manner.

[19] A mandamus application is not a de novo hearing, but rather a judicial review of the SIU Director’s decision. The question that will be before the court is whether the SIU Director decision is justified, based on the evidence he reviewed. Subject to a few exceptions, fresh evidence is not admissible on a mandamus application: Wijayaratnam v. Office of the Independent Police Review Director, 2021 ONSC 6303 (Div. Ct.), at para. 27. See also Lovell v. Ontario (Minister of Natural Resources and Forestry), 2022 ONSC 423 (Div. Ct.), at para. 5.

[20] Additional evidence may be considered in certain limited circumstances. These exceptions were summarized in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, at para. 20 as follows:

(a) Sometimes this Court will receive an affidavit that provides general background in circumstances where that information might assist it in understanding the issues relevant to the judicial review: see, e.g., Estate of Corinne Kelley v. Canada, 2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada (Attorney General), 2005 FC 1013 at paragraphs 39-40; Chopra v. Canada (Treasury Board), 168 F.T.R. 273 at paragraph 9. Care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider. In this case, the applicants invoke this exception for much of the Juliano affidavit.

(b) Sometimes affidavits are necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness: e.g., Keeprite Workers’ Independent Union v. Keeprite Products Ltd., 29 O.R. (2d) 513 (C.A.). For example, if it were discovered that one of the parties was bribing an administrative decision-maker, evidence of the bribe could be placed before this Court in support of a bias argument.

(c) Sometimes an affidavit is received on judicial review in order to highlight the complete absence of evidence before the administrative decision-maker when it made a particular finding: Keeprite, supra.

[21] In my view, the reasons provided by M.D. for the relevance of the evidence do not fall within any of the exceptions set out above. M.D. wishes to examine Mr. Lafleur and Mr. Degray during the mandamus application to establish falsehoods or incorrect information provided by them during the SIU investigation, to in turn obtain an order requiring the SIU Director to reverse his decision to decline to lay charges. Any evidence that Mr. Lafleur or Mr. Degray could provide would not provide a general background or a summary of voluminous information, touch on any denial of natural justice by the SIU, or relate to a decision by the SIU Director in the complete absence of evidence. The additional evidence that would be provided by the testimony of Mr. Lafleur and Mr. Degray is not admissible to supplement the record that was before the decision-maker, being the SIU Director.

[22] In coming to this conclusion, I have also considered that on “an application for judicial review, there is no right to insist on general discovery of the respondent … Nor does judicial review afford a party a right to documentary discovery”: Lachance v. Ontario (Solicitor General), 2023 ONSC 7143 (Div. Ct.), at para. 15 (citations omitted).

[23] Regarding the subpoena to witness Mr. Lafleur, dated March 3, 2025, to bring the “August 8, 2021, Angela Lepage cellphone video entered in axon” to the mandamus application, the request to quash the subpoena is largely moot. The cellphone video will be part of the record before the court hearing the mandamus application. Any additional testimony from Mr. Lafleur does not fall within the abovementioned exceptions.

[24] The extensive material that was before the SIU Director in making his decision will be before the court hearing the mandamus application. The decision to quash the three subpoenas will not foreclose the arguments sought to be made by M.D. at the upcoming mandamus application.

Conclusion

[25] M.D. has not established that the two witnesses likely have relevant, material, and admissible evidence. The application made by Mr. Lafleur and Mr. Degray for an order quashing the subpoenas for them succeeds, and an order is made quashing the three subpoenas under consideration.

[26] Finally, the request for an order abridging the time to serve and file the Application Record and Applicant’s Factum for the application to quash the subpoenas is granted.

Brian Holowka
Released: April 28, 2025