Ontario Superior Court of Justice
Court File No.: CR-24-10000049-00AP
Date: 2025-01-16
BETWEEN:
His Majesty the King (Respondent)
and
Andrew Haley (Appellant)
Tania Monteiro, for the Respondent Crown
Nate Jackson, for the Appellant Mr. Haley
Heard: November 14, 2024
Reasons for Judgment by: J. R. Presser
Reasons for Judgment in Summary Conviction Appeal
I. Introduction and Overview
[1] The appellant, Andrew Haley, appeals his convictions for one count of assault and one count of assault with a weapon, contrary to ss. 266 and 267, respectively, of the Criminal Code, RSC 1985, c C-46.
[2] Mr. Haley was convicted after trial of assault with a weapon for spraying bleach on a neighbour, Raymond Whyte; and of assault for pushing another neighbour, Justin Zaza. The assaults were found to have occurred when Mr. Whyte and Mr. Zaza attended at the appellant’s apartment door to confront him about an earlier incident in the building. The defence position at trial was that the Crown had not proven that this was not a consensual fight beyond a reasonable doubt given what it said were significant credibility problems in the evidence of the two complainants. The defence also argued that there was an air of reality to the defence of self-defence, and that the Crown had not proven that the appellant was not acting in self-defence beyond a reasonable doubt. The trial judge found the complainants credible and found that there was no air of reality to the defence of self-defence. He found that the Crown had proven the charges beyond a reasonable doubt. He convicted the appellant.
[3] The issue on appeal surrounds an application, brought by the defence mid-trial, for disclosure of a video in the possession of the police. The appellant submits that the trial judge erred in failing to order disclosure.
[4] The video apparently depicts an altercation between the complainant, Mr. Whyte, and another resident in the same building, which took place approximately 16 months before the incident at issue in this case. A police synopsis relating to the earlier incident was disclosed to the defence mid-trial. It referred to a video of the earlier incident and noted that the video showed Mr. Whyte chasing the neighbour up the stairs, pushing him down, and punching him twice in the head. Police charged Mr. Whyte with assault after viewing the video. This assault charge was ultimately resolved by way of peace bond. After receiving the synopsis, the defence brought an application for disclosure of the video of the earlier incident. The trial judge dismissed the disclosure application, on the basis that the video was collateral. He did allow defence counsel to cross-examine Mr. Whyte about the earlier incident. In cross-examination, Mr. Whyte denied that he had chased his neighbour up the stairs or punched him in the head. The defence renewed the application for disclosure of the video. The trial judge again dismissed the application. He held that the video was collateral and irrelevant.
[5] On appeal, the appellant submits that the video was “obviously relevant” both to his ability to impeach Mr. Whyte and challenge his credibility, and to his defence of self-defence. As a result, in the defence submission, it should have been disclosed as part of the Crown’s ongoing first party disclosure obligation. When the Crown did not disclose the video, on his application, the trial judge was required to do so. The appellant’s position is that the non-disclosure violated his right to disclosure and his right to make full answer and defence. He seeks a new trial.
[6] The Crown position is that the trial judge did not err in failing to order disclosure of the video. The Crown notes that the trial judge properly asked the Crown to disclose the synopsis of the earlier incident, and did permit the defence to cross-examine Mr. Whyte about it. In the Crown submission, the trial judge was legally required to do no more. Having cross-examined Mr. Whyte about the earlier incident, according to the Crown, the defence was barred by the collateral fact rule from calling extrinsic evidence to contradict his testimony in order to impeach his credibility. In addition, the Crown argues that the video could not have been relevant to establishing the defence of self-defence. This is because there was no evidence from which the trial judge could have found an air of reality to the defence. The Crown submits that, even with the video, there was no evidence of the required element of the appellant’s subjective belief on reasonable grounds that force was being used against him.
[7] The issues for my determination are whether the appellant had a right to disclosure of the video, and if so, whether the breach of that right violated his right to make full answer and defence.
[8] For the following reasons, I find that the appellant had a right to disclosure of the video, which was breached when the trial judge refused to order disclosure, and that this violated his right to make full answer and defence in the circumstances of this case. The trial judge erred in failing to order disclosure of the video.
II. The Evidence
[9] The appellant and the two complainants lived in the same residential apartment building in Toronto. Mr. Whyte testified that on October 20, 2022, the appellant threw garbage at his head from the fire escape in their shared building. Mr. Whyte was upset. He enlisted the help of Mr. Zaza to attend at the appellant’s unit with him. Mr. Whyte said he wanted Mr. Zaza to go with him to ask the appellant why the appellant threw garbage at him. He denied that he went to the appellant’s unit to confront him. Mr. Zaza testified that Mr. Whyte enlisted his support to go confront the appellant.
[10] The appellant answered his door. Mr. Whyte said that when he asked why the appellant threw garbage at his head, the appellant became pushy and aggressive. Mr. Whyte said this made him upset. Mr. Zaza testified that they were all yelling. Unpleasant words were exchanged.
[11] The complainants testified that the appellant used homophobic slurs against them. Mr. Whyte initially denied that he used a racial slur against the appellant, who is Black. Later in his testimony, Mr. Whyte acknowledged that he may have called the appellant an “N” word. Mr. Zaza could not recall whether Mr. Whyte used the “N” word but said that it was possible.
[12] Mr. Whyte said that he was upset when he attended at the appellant’s door because the appellant had intentionally thrown garbage at his head. Mr. Whyte maintained, however, that he was not angry or aggressive. A police body-worn camera (“BWC”) video from after the altercation was played for Mr. Whyte in cross-examination. Defence counsel suggested to Mr. Whyte that he was agitated, aggressive, and angry in the video. Mr. Whyte denied that he was. Rather, he said that he was upset because he had had bleach thrown in his eyes. Defence counsel asked Mr. Whyte whether the level of aggression and agitation he displayed in the BWC video was how he presented prior to and during his interaction with the appellant. Mr. Whyte responded, “not to my knowledge.”
[13] The BWC video was not entered in evidence at trial. The trial judge held that because the video showed a prior inconsistent statement, it should not be made an exhibit.
[14] Mr. Zaza testified that it was possible that Mr. Whyte provoked the appellant. He explained that for the appellant, who he said had displayed nothing but aggression since moving into the building, even the fact that Mr. Whyte knocked on his door would be a provocation. Mr. Zaza also said that Mr. Whyte was very upset when he knocked on the door. He said Mr. Whyte was “mildly threatening because he can get very loud; he can get very loud.” But Mr. Zaza maintained that Mr. Whyte was “never physically violent with anyone – or he wasn’t with Mr. Hayes [sic]” (referring to the appellant, Mr. Haley).
[15] Mr. Zaza said he was filming the events at the door to the appellant’s unit with his cellphone camera. He said that, at some point during the confrontation, the appellant assaulted him by pushing the hand in which he was holding his cellphone.
[16] Mr. Whyte testified that Mr. Zaza was standing behind him. He said he was between Mr. Zaza and the appellant. As a result, Mr. Whyte said he could not see whether the appellant did anything to Mr. Zaza. He said he does not have eyes in the back of his head. In cross-examination, after viewing the BWC video, Mr. Whyte agreed that he had told police that he saw the appellant push Mr. Zaza. He explained this inconsistency between what he told police and his evidence at trial by saying that he could see the appellant pushing over him toward Mr. Zaza, but he could not actually see the appellant push Mr. Zaza. Mr. Whyte said that although he could not see the appellant pushing Mr. Zaza, he knew the appellant had done so.
[17] Both complainants testified that after the appellant pushed Mr. Zaza, he assaulted them by spraying them with bleach.
[18] Mr. Whyte and Mr. Zaza testified that at that point, they went downstairs to involve building security. The appellant went back into his unit. Mr. Whyte testified that the appellant then approached him with a bucket full of bleach and threw it at his head.
[19] Mr. Whyte explained that the bleach got in his eyes, which caused his eyes to burn. He said he could not see. An ambulance, firefighters, and the police attended. Mr. Whyte received medical treatment for his eyes. He said his eyes were still burning at the time of trial but acknowledged that he had not sought further medical treatment.
[20] Mr. Whyte testified that a building security guard was present when the bucket of bleach was thrown at him. In cross-examination, he clarified that the security guard was on the other side of a door with the door open when the bleach was thrown. He said the security guard could see the bleach being thrown at him.
[21] Mr. Zaza testified that as he was going downstairs to security, facing away from the appellant’s unit, he heard a huge splash, and got some of the splash on him. He was not sure whether he ever saw a bucket, but that it was a bucket’s worth of bleach that had been thrown. Mr. Zaza said the hallway was covered in bleach after he heard the splash. He said the security guard may have seen who threw the bleach. But the guard may have been in the security area when the bucket of bleach was thrown, in which case he would not have seen who threw it. Mr. Zaza was not sure of where the security guard was at that time.
[22] The security guard did not testify.
[23] Mr. Whyte explained that he knew it was bleach because of how it burned his eyes; because of how it damaged his clothing, including a new jacket he was wearing at the time; because the hallway in the basement of the building was covered in bleach; and because there was a distinctive smell of bleach in the air. Mr. Whyte did not give the jacket he had been wearing to police. He said he threw it out.
[24] Mr. Zaza did not notice a smell of bleach because, he said, he has a terrible sense of smell. However, he testified to a number of observations that were consistent with bleach having been thrown: after he heard the splash, he felt and saw liquid; Mr. Whyte’s jacket was dyed all different colours, as if it had been tie-dyed; Mr. Whyte’s eyes watered and were red; and Mr. Whyte was screaming from the pain in his eyes.
[25] Police Constable (“PC”) Richard Hopton attended at the building in response to a report of an assault. The building security guard had called police, saying one resident had thrown bleach on another resident. When PC Hopton arrived on scene, paramedics were attending to Mr. Whyte. The officer said Mr. Whyte appeared to be in discomfort, and very upset. He said Mr. Whyte was complaining that he had gotten bleach in his eyes. PC Hopton observed that Mr. Whyte was wearing a dark-coloured jacket that had white splotches all over it, consistent with the jacket having had bleach poured on it. PC Hopton also observed that there was a strong odour of bleach in the stairwell that leads up to the appellant’s unit. The officer did not recall whether there was any liquid on the floor and did not make any notes about that. He was not sure of whether there were any photographs of the scene.
[26] No police or other photographs of the scene were tendered in evidence at trial.
[27] Mr. Zaza testified that he deleted his cellphone video of the incident, possibly even before police arrived on scene, because it was “unpleasant.” He explained that the video showed everyone in a negative light, even Mr. Whyte and Mr. Zaza himself. He ultimately agreed that he had his own YouTube channel on which he posted short videos capturing “unpleasant” occurrences in and around the same residential building in which this incident occurred. Mr. Zaza was not sure of whether the video of this incident showed the assault. He said it would not necessarily have been possible to see who was grabbing the phone, depending on the person’s angle of approach. He agreed that he sometimes posted videos that did not show much of anything to his YouTube channel. Mr. Zaza denied that he deleted the video because it showed Mr. Whyte being aggressive, or because it contradicted the allegations.
[28] Mr. Whyte testified that he did not know whether Mr. Zaza had videotaped events at the appellant’s door. His evidence was that Mr. Zaza was standing behind him, so he could not see what Mr. Zaza was doing. In cross-examination, defence counsel played the police BWC video for Mr. Whyte and put to him that he had told police that Mr. Zaza had recorded the incident on video. Mr. Whyte initially maintained that he had told police that Mr. Zaza “takes videos.” Defence counsel played the BWC video for Mr. Whyte again, asking him whether he had told police that “he’s [Mr. Zaza’s] got it on video.” Mr. Whyte responded, “[i]f that’s what I said, out of anger or something, it could have just been misword, he’s got it on video. Justin takes videos of everything in the building all the time, so maybe I was assuming he had it on video.” Mr. Whyte maintained that he had never seen the video.
[29] Mr. Whyte acknowledged that he had been drinking alcohol before he went to the appellant’s unit. He said he drinks every day. He did not know how much he had had to drink on that day, because he does not monitor his drinking. Mr. Whyte did not know how intoxicated he was but maintained he was sober enough to remember what happened in the incident with the appellant. When shown the police BWC camera video of his discussions with police, Mr. Whyte volunteered, without being asked to explain this, that his speech was slurred in the video because his dentures are loose. He said that he was not slurring his words as a result of intoxication.
[30] Mr. Zaza testified that Mr. Whyte always drinks. He said he supposed that Mr. Whyte was somewhat inebriated at the time of this incident.
[31] Mr. Whyte was 69 years old when these events occurred. He testified that the appellant was much bigger than him.
[32] The appellant did not testify. No other defence evidence was called.
III. Mid-Trial Proceedings Relating to Disclosure
[33] In cross-examination, Mr. Whyte was asked whether he had a criminal record. He acknowledged that he did but said that it had been clean for 30 years except for one recent minor incident of which he was found not guilty. When pressed for further information, Mr. Whyte said that a neighbour had accused him of assault, but that he had not assaulted the man.
[34] Mr. Whyte was excused from the courtroom. Crown counsel indicated that Mr. Whyte’s criminal record, which had been disclosed, did not reflect any recent assault charge. Police assigned to this case were unaware of it. At defence counsel’s request, the trial judge asked the Crown to make further inquiries. After inquiring further, the Crown located a SCOPE file and a synopsis relating to a June 2021 assault charge against Mr. Whyte that was resolved by way of peace bond.
[35] The trial judge directed the Crown to provide the synopsis to defence counsel. At the same time, the trial judge said that this assault charge would be of limited or no assistance to him because there was no admission of guilt.
[36] After reviewing the synopsis, counsel for the appellant sought disclosure of a video it referred to:
So, Your Honour, given what I’m seeing in the synopsis, and despite what – how the matter came to a conclusion in terms of a peace bond – peace bond resolutions, as Your Honour knows, are used all – all sorts of ways and at all sorts of times – I’m going to be asking to stand down for – for a moment or at least a little bit of time to make a formal disclosure application. At this juncture, I know it’s not ideal, but I’ll just give Your Honour the – the reason why. I – I’m not – I heard Your Honour’s comments with respect to limited – based on the information we had up to moments ago, limited questioning, but this synopsis, written by police, references a video – this – this – let’s back up. Mr. Whyte was charged, it looks like, with an allegation where – alleging that he punched the victim twice in the face, and also pushed him down. The victim recorded, partially recorded this assault, and police have said this in the synopsis:
The victim had recorded part of the assault as it was taking place. One police [- once – sorry] – when police viewed the victim’s recording, the accused was arrested and advised of his rights, et cetera.
So clearly police reviewed a recording. I would think that that recording was preserved and it’s a recording of Mr. Whyte being assaultive towards another neighbour, having the other part of this synopsis tells us that the victim in this matter was pursued up the stairs, there was an argument. Mr. Whyte ran up the stairs or the fire escape stairs and confronted the victim. The accused pushed the victim down to the ground and punched him twice in the face. So given that we have a recording of that assaultive behaviour, it’s my submission that it’s clearly relevant to the issues at hand, including what Your Honour will have to assess. The air of reality to a self-defence or consent fight scenario here, and had I had this in advance, there would have been a disclosure motion brought in advance of trial, but here we are. . . It’s unfortunate in terms of the timing, but notwithstanding the fact that the matter was resolved by way of peace bond, we have the police telling us that there was a video of an alleged assault or of the assault, and it’s not too far off. It was June 15, 2021.
[37] The trial judge dismissed the disclosure application, without hearing from the Crown, holding:
Well, it’s a collateral issue. It’s not – we’re not dealing with that trial issue. We’re not dealing with that case. This case is about your client and Mr. Whyte. You can ask this witness about the case, but we’re not getting into the details of that case in terms of videos and police witnesses. We’re not trying that case. That case ended with a peace bond. You can ask him questions, and we’ll move on.
[38] After the application for disclosure was denied, Mr. Whyte was brought back into the courtroom. Counsel for the appellant cross-examined him about the 2021 incident with his neighbour that led to an assault charge. Mr. Whyte admitted to pushing his neighbour to the ground in what he described as a “pushing match.” But he denied that he chased the man up the fire escape and he denied that he punched the man twice in the head, as alleged in the synopsis which appeared to be informed by the police review of the video.
[39] Defence counsel renewed his application for disclosure of the video, which he said he understood police had in their possession.
[40] The trial judge dismissed the renewed application, again without calling on the Crown, as follows:
It’s an entirely collateral issue. It’s another trial – another case. We’re not going to muddy the waters in this case with another case. You’ve asked your questions. You’ve got your answers.
[41] The video of the June 15, 2021 incident between Mr. Whyte and his neighbour was never disclosed to the defence. It was not before this court on appeal.
IV. Analysis
A. Was There a Violation of the Appellant’s Right to Disclosure That Violated His Right to Make Full Answer and Defence?
[42] I have concluded that the appellant was entitled to disclosure of the video. Although it was not in the possession or control of the prosecuting Crown or in the investigative file for this case, it was “obviously relevant” information in the possession of the same police service that investigated these charges. The Crown was required to disclose the video pursuant to its ongoing obligation to make first party disclosure. When it did not do so, the trial judge was required to order disclosure on defence application. His decision to deny disclosure violated the appellant’s right to make full answer and defence. It is reasonably possible that the failure to disclose adversely affected the fairness of the trial process. I will explain how I came to these conclusions.
(1) Was there a violation of the appellant’s right to disclosure?
(a) Applicable legal principles
[43] Disclosure in criminal cases is governed by two different regimes: R. v. Abdella, 2021 ONSC 3932, para 11.
[44] The first, known as first-party disclosure, requires the prosecuting Crown to provide the defence with all material in its possession that is not “clearly irrelevant” or privileged: R. v. Stinchcombe; R. v. Gubbins, 2018 SCC 44, para 29.
[45] The defence has a right to first party disclosure on request: Abdella, at para. 11. The right is ongoing and constitutional, protected by s. 7 of the Charter: Stinchcombe, at p. 342; Gubbins, at paras. 18-19; R. v. Pascal, 2020 ONCA 287, para 100. It “helps to guarantee the accused’s ability to make full answer and defence”: R. v. Taillefer; R. v. Duguay, 2003 SCC 70, para 61.
[46] In Abdella, at paras. 12-13, Schreck J. gave the following helpful explanation of the two ways in which the Crown can come into possession of material that triggers its first party disclosure obligations:
First, the police have a duty to provide the Crown with all of the information pertaining to its investigation of the accused, which is sometimes referred to as the “fruits of the investigation”: R. v. McNeil, 2009 SCC 3, paras 14, 24; Gubbins, at para. 21; Pascal, at para. 104.
Second, where “obviously relevant” material is in the possession of some other governmental agency and the Crown is put on notice of its existence, the Crown has a duty to make reasonable inquiries of that agency and obtain the material if it is feasible to do so: McNeil, at paras. 48-50; R. v. Quesnelle, 2014 SCC 46, para 12; Gubbins, at para. 23; Pascal, at paras. 104, 106. Once the Crown comes into possession of such material, it must be disclosed. [1]
[47] Material will be “fruits of the investigation” where it was “generated or acquired during or as a result of the specific investigation into the charges against the accused”: Gubbins, at para. 22.
[48] Material will be “obviously relevant” where it “relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence”: Gubbins, at para. 23.
[49] The second disclosure regime governs material that is in the hands of third parties. This regime governs the disclosure of material that is not in the possession of the prosecuting Crown, the investigating police service in relation to its investigation of the accused, nor another governmental body that is required to provide the material to the Crown because it is “obviously relevant.” The Crown is not required to seek out or disclose such material from third parties. Instead, the defence must bring an application for third party production and establish that the material is “likely relevant”: R. v. O’Connor.
[50] In order to determine which disclosure regime applies to any material, a reviewing court must consider two questions. As set out in Pascal at para. 107, these questions ask whether:
i. the information sought is in the possession or control of the prosecuting Crown; and
ii. the nature of the information sought is such that the police or another Crown entity in possession or control of it should have supplied the information to the prosecuting Crown.
The second question will be answered affirmatively where the information is part of “the fruits of the investigation” or is “obviously relevant”. An affirmative response on either of these issues means that the first party or Stinchcombe disclosure regime applies: Gubbins, at para. 33.
[51] It is clear that the video of the prior incident was not in the possession or control of the prosecuting Crown. Crown counsel learned of it for the first time mid-trial, when it sought out and obtained the synopsis. Accordingly, I must consider whether the video is “fruits of the investigation” or “obviously relevant.”
(b) Was the video “fruits of the investigation”?
[52] It is clear that the video was not “fruits of the investigation.” It was acquired by police in the course of their investigation of the 2021 incident that led to Mr. Whyte being charged with assault. It was not acquired or generated by the police in the specific investigation that led to the appellant being charged with the offences at issue in this trial.
(c) Was the video “obviously relevant”?
[53] The video was of an altercation between Mr. Whyte and a neighbour that took place in the same building as these events, 16 months earlier. The synopsis in relation to the assault charge against Mr. Whyte that arose from that altercation indicates that police viewed the video. It indicates that the video shows Mr. Whyte chasing a neighbour, pushing him to the ground, and punching him twice in the head when he was on the ground. The synopsis also indicates that police decided to criminally charge Mr. Whyte after seeing the video. This means that the video at least contributed to the police forming reasonable grounds to believe that Mr. Whyte had assaulted his neighbour.
[54] The charges at issue also involved allegations that arose from a neighbour dispute involving Mr. Whyte in the same building.
[55] The defence position at trial was that credibility and reliability concerns with the complainants’ evidence raised a reasonable doubt and that there was an air of reality to self-defence.
[56] Relevance, for the purpose of triggering the Crown’s first party disclosure obligations, is defined broadly: Stinchcombe, at p. 339; Taillefer, at paras. 59-60. Moreover, as noted in Abdella, at para. 22:
In determining whether the material in question is “obviously relevant” such that the Crown’s duty to inquire is engaged, it is important [to] recall that relevance is a binary concept. As pointed out in R. v. Jackson, 2015 ONCA 832, para 121, “[t]he law of evidence knows no degrees of relevance” and evidence is either relevant or not: see also Gubbins, at para. 23. Evidence will be relevant where “as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise”: Jackson, at para. 122; R. v. Cloutier.
[57] Insofar as there was a reasonable possibility that the contents of the video directly or indirectly made it more probable that Mr. Whyte was not credible, or that there was an air of reality to self-defence, the video was relevant.
[58] I will consider the potential usefulness of the undisclosed video to the defence further when I assess whether the appellant’s right to make full answer and defence was infringed. Here, suffice it to say that the video was potentially relevant as independent evidence of Mr. Whyte’s propensity for violence: R. v. Scopelliti. As such, it was potentially relevant to the defence of self-defence. The video also had some potential relevance as evidence of Mr. Whyte’s prior discreditable conduct, which in turn, had potential relevance to his credibility: Pascal, at para. 109. And, as this litigation unfolded, the video was potentially relevant to the defence’s ability to impeach Mr. Whyte’s credibility by cross-examining him on inconsistencies between his trial testimony and what was shown on the video (recalling that Mr. Whyte testified that he did not chase the neighbour upstairs or punch him twice in the head when he was on the ground, which conflicted with the summary of the video contained in the synopsis).
[59] I have referred to the “potential relevance” of the video. This is because, as a result of non-disclosure, the contents of the video are not known by anyone involved with this case; at least not with any degree of certainty. It seems likely that the video shows what the police who viewed it wrote about it in the synopsis. The police investigating the earlier incident certainly seem to have considered that the video contributed to reasonable grounds to believe that Mr. Whyte committed an assault. But without viewing the video and confirming what it depicts, it is not possible to conclude that it would certainly have been helpful to the defence.
[60] The video does not have to be certainly helpful to the defence to be “obviously relevant.” It need only “relate” to the defence’s “ability to meet the Crown case, raise a defence, or otherwise consider the conduct of the defence” (emphasis added): Gubbins, at para. 23. Relevance for the purpose of triggering the Crown’s first party disclosure obligations must be assessed not only in relation to the charge, but also in relation to whether it can “reasonably be used by the accused”: Taillefer, at para. 59, citing R. v. Egger.
[61] In this case, non-disclosure of the video prevented the defence from considering whether and how independent evidence of a recent prior altercation with a neighbour involving Mr. Whyte might affect the conduct of the defence. Disclosure of the video, depending on what it showed, may have led the defence to do any of the following: interviewing or even calling the complainant in the prior incident to testify; interviewing other residents in the building; seeking to have the video admitted in evidence; cross-examining Mr. Whyte on the video in-depth, with a view to impeaching his credibility; and relying on the video to help establish an air of reality to self-defence. Consideration of these avenues in the conduct of the defence was foreclosed here because the video was not disclosed. The video could reasonably have been useful to the defence. The threshold of “obvious relevance” does not require more.
[62] I conclude that the appellant had a right to disclosure of the video. Having been made aware of the existence of the video, pursuant to its ongoing first party disclosure obligations, the Crown had a duty to make inquiries of the police, obtain the video, and disclose it to the defence. When the Crown did not do so, the trial judge was required to order disclosure when the defence applied for it. The non-disclosure violated the appellant’s right to disclosure.
[63] On appeal, the Crown argued that its disclosure obligation in relation to the prosecution witness’ prior discreditable conduct and criminal antecedents, as established in Pascal, extends only to prior convictions and outstanding charges. It does not, in the Crown submission, extend to an obligation to disclose everything about past charges and the entire investigative file. This, it says, is for sound public policy reasons: to require the prosecution to disclose more broadly would create an overwhelming and unmanageable disclosure burden for the police and the Crown.
[64] I agree that there is no general rule that every detail about a prosecution witness’ past charges, the circumstances underpinning them, and everything in the investigative file about them is automatically subject to disclosure in the ordinary course. However, the Crown’s obligation to disclose is not solely determined by the category of the material at issue. Rather, it is determined by relevance. Relevance is a case and context specific inquiry: Cloutier; R. v. Evans, 2019 ONCA 715, paras 182-186. Where the law has determined that disclosure of certain categories of material, such as a prosecution witness’ criminal record, will generally be required, this is because material in that category will generally be relevant: s. 12 of the Canada Evidence Act, RSC 1985, c C-5; Pascal, at paras. 108-109. Material that does not fall into a category for which the law generally requires disclosure may still fall under the Crown’s duty to disclose, if it is relevant.
[65] The video is disclosable here because it is obviously relevant in all the circumstances of this case. Even though it may not fall into a category of material that will always or generally be disclosed.
[66] This does not create the floodgates problem anticipated by the Crown at this appeal. Everything in past police investigative files about a witness is not automatically subject to disclosure. But there may be case, fact, or circumstance specific reasons for which a past investigative file, or elements of it, or specific pieces of evidence in it, are relevant and must be disclosed in aid of the right to make full answer and defence. For the reasons set out above, this was the case here.
(2) Was there a violation of the appellant’s right to make full answer and defence?
(a) Applicable legal principles
[67] Not every infringement of the right to disclosure will amount to an infringement of the right to make full answer and defence, entitling an appellant to a remedy on appeal: Taillefer, at para. 71; R. v. Dixon, paras 23-24; Pascal, at para. 111. To establish a breach of the right to make full answer and defence and the need for a remedy, an appellant “will have to show that there was a reasonable possibility that the failure to disclose affected the outcome at trial or the overall fairness of the trial process”: Taillefer, at para. 71; Dixon, at para. 34.
[68] There is a two-step test to determine whether there was a breach of the right to make full answer and defence arising out of a breach of the right to disclosure. At the first step, the appellate court is required to assess the undisclosed information to determine the impact it might have had on “the decision to convict as expressed in the reasons for judgment,” considering the evidence in its entirety: Pascal, at para. 115.
[69] The appellant must establish a reasonable possibility that, possessed of all the relevant evidence, the trier of fact might have had a reasonable doubt as to guilt: Taillefer, at para. 82. That is, “a reasonable possibility that the verdict might have been different but for the Crown’s failure to disclose all of the relevant evidence” (emphasis in the original): Taillefer, at para. 81. This is not a heavy burden: the appellant need only demonstrate a reasonable possibility, not “that it is probable or certain that the fresh evidence would have affected the verdict”: Taillefer, at para. 81. At the same time, mere speculation will not satisfy the standard of reasonable possibility: Pascal, at para. 113.
[70] Even if the appellant does not satisfy the first step of the test, the appellate court must move on to consider the second step. That is, whether there is a reasonable possibility that the failure to disclose affected the overall fairness of the trial process: Taillefer, at para. 83; Dixon, at para. 36; Pascal, at para. 115. At this step, the appellate court must consider the potential usefulness of the non-disclosed material to the defence. For example, the court must consider whether there were:
- “reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure” [emphasis in the original]: Taillefer, at para. 84, citing Dixon, at para. 34;
- reasonably possible deprivations of certain evidential or investigative resources occasioned by the failure to disclose, such as whether an undisclosed item could reasonably have been used to impeach the credibility of a prosecution witness, or whether the non-disclosure of a witness could reasonably have led to the timely discovery of other witnesses who could be useful to the defence: Taillefer, at para. 84;
- reasonably possible deprivations of “lines of inquiry with witnesses or . . . opportunities to obtain additional evidence that could have been available to the defence had timely disclosure been made”: Pascal, at para. 116; and
- not only deprivation of the content of undisclosed information, but also of “realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence” [emphasis in original]: Pascal, at para. 116, citing Dixon, at paras. 37-38.
[71] If an appellant establishes that either step of the test has been met, they will have established a breach of their right to make full answer and defence and a right to a remedy on appeal. I now move on to consider whether either step of the test has been met by the appellant here.
(c) The first step: did non-disclosure affect the reliability of the verdict in this case?
[72] Without knowing what is on the video, it is difficult to assess whether its non-disclosure affected the outcome at trial.
[73] The trial judge convicted the appellant because he found the complainants credible and believed their evidence, and because he found that there was no air of reality to self-defence. If the video shows Mr. Whyte chasing a neighbour up the stairs, pushing him to the ground, and punching him twice in the head, it was relevant to Mr. Whyte’s credibility and to self-defence. If the video had been disclosed, and it showed Mr. Whyte as a violent aggressor in the earlier incident contrary to his testimony, there would have been a reasonable possibility that the verdict might have been different.
[74] However, if the video does not depict Mr. Whyte as the violent aggressor in the earlier incident, it would have been unlikely to have raised a reasonable doubt or affected the verdict at this trial.
[75] In my view, there is a reasonable possibility that the video does show Mr. Whyte chasing his neighbour up the stairs, pushing him to the ground, and punching him twice in the head. The police who investigated the 2021 neighbour incident wrote in their synopsis that they viewed the video, that this is what they saw in it, and that they charged Mr. Whyte as a result. In this way, it might be thought that there is a reasonable possibility that non-disclosure of the video affected the outcome at trial. Indeed, the appellant is not required to establish a certainty or even a probability that the non-disclosure affected the verdict: Taillefer, at para. 81.
[76] However, experience in the criminal justice system teaches that the case for the prosecution is often at its highest in the police synopsis. What is asserted with confidence in a synopsis may or may not reflect the evidence at trial. It may or may not turn out to be capable of proof as a prosecution progresses.
[77] For this reason, although it is a close call, I cannot find that there is a reasonable possibility that the failure of disclosure affected the outcome at trial. Without knowing the content of the video, its impact on the verdict would be too speculative to allow me to conclude that there was a reasonable possibility of a different outcome at trial had it been disclosed.
[78] But this does not end the inquiry. I must now proceed to consider whether the failure to disclose adversely affected overall trial fairness: Taillefer, at paras. 83, 99.
(d) The second step: did non-disclosure affect overall trial fairness in this case?
[79] I find that non-disclosure of the video affected overall trial fairness. There were reasonable possible uses of the non-disclosed evidence and reasonably possible avenues of investigation that were closed as a result of the non-disclosure.
[80] It is reasonably possible that, if it had been disclosed to the defence, the video could have been used to cross-examine Mr. Whyte as to his prior disreputable conduct, as may have been evidenced by the video. This cross-examination could have been useful to the defence in impeaching Mr. Whyte’s credibility: Pascal, at para. 109.
[81] I recognize that Mr. Whyte was not found guilty of assaulting his neighbour in the prior incident. He entered a peace bond. The fact that he was charged, on its own, may not have been capable of degrading his character or impairing his credibility: Pascal, at para. 110. Moreover, the fact of the 2021 assault charge arising out of a neighbour dispute was already in evidence, even without the video, as was the fact that it was resolved by way of peace bond. The video did not need to be disclosed in order for the defence to cross-examine Mr. Whyte as to his prior discreditable conduct in allegedly assaulting a neighbour, being criminally charged, and entering a peace bond. I conclude that the video may have added little to what was already available to the defence in terms of impeaching Mr. Whyte’s credibility through evidence of prior discreditable conduct. But it is reasonably possible that having the video itself on which to cross-examine Mr. Whyte could have contributed something to the defence’s ability to impugn his character and thereby his credibility.
[82] It is also reasonably possible that, if it had been disclosed to the defence, the video could have been used to cross-examine Mr. Whyte as to inconsistencies between his trial testimony about the 2021 incident, and what the video shows about it. This cross-examination could have been useful to the defence in impeaching Mr. Whyte’s credibility, by demonstrating through inconsistencies that he was not a truthful witness.
[83] The defence’s inability to pursue this line of cross-examination and thereby challenge Mr. Whyte’s credibility was potentially significant here. The credibility of the complainants was a major focus of the defence. In the Reasons for Judgment at trial in this case (unreported decision of Maylor J., June 12, 2024), at para. 13, after noting the defence challenges to Mr. Whyte’s credibility, the trial judge held that “[t]he cross-examination did not diminish the core of Whyte’s evidence as to what occurred.” The loss, through non-disclosure of the video, of a potential avenue for further challenge to Mr. Whyte’s credibility was the loss of a potentially meaningful evidential resource for the defence. In this way, the failure to disclose the video adversely affected trial fairness.
[84] It is further reasonably possible that, if it had been disclosed to the defence, the video could have been used to support the defence of self-defence. In Scopelliti, the Court of Appeal for Ontario held that an accused advancing a defence of self-defence can lead evidence that the complainant committed specific unprovoked acts of violence against third parties, even if these were unknown to the accused at the time of the alleged offence. The court held that evidence of prior acts of violence by a complainant that are unknown to the accused obviously cannot be relevant to whether the accused reasonably believed that force or threat of force was being used against them: Scopelliti, at para. 30. However, evidence of the complainant’s “character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased”: Scopelliti, at para. 30.
[85] In this case, the defence position was that there was an air of reality to the defence of self-defence, and that as a result the Crown had to prove beyond a reasonable doubt that the appellant had not acted in self-defence, which it failed to do.
[86] Even though the appellant did not testify and no other defence evidence was called, there was some evidence in the Crown case that could have contributed to a finding that there was an air of reality to self-defence. It should be recalled that in assessing air of reality, a trial judge must consider the totality of the evidence and assume that the evidence relied upon by the defence is true: R. v. Cinous, 2002 SCC 29, para 53. The trial judge assessing air of reality must not “make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences”: Cinous, at para. 54. In other words, in assessing whether there was an air of reality to self-defence here, the trial judge was required to take the evidence that supported self-defence at face value.
[87] The evidence that could have contributed to a finding of air of reality to self-defence in this case was as follows. This was a two-on-one situation. Mr. Whyte marshalled Mr. Zaza to support him before he went to the appellant’s unit. There was at least some evidence that they went to the appellant’s home to confront him. They sought him out when he was in his home. Mr. Whyte was at least somewhat inebriated. He was upset. There was evidence suggesting that he was also angry, agitated, and aggressive. Mr. Zaza was filming. All three men were yelling. Mr. Whyte was very loud, “mildly threatening,” and the evidence was that it was possible that he provoked the appellant. The evidence suggested that Mr. Whyte used a racial slur against the appellant. The appellant used a homophobic slur against the complainants. Mr. Zaza subsequently deleted his video of the altercation because it showed all three men in a negative light. It was also possible that he deleted the video because it showed Mr. Whyte as the aggressor in the confrontation with the appellant, or otherwise contradicted the complainants’ version of events.
[88] On this record, the trial judge found that there was no air of reality to self-defence. In the Reasons for Judgment (unreported decision of Maylor J., June 12, 2024), at para. 13, the trial judge held, “[t]here was no evidence that Whyte or Zaza threatened or assaulted the defendant. There is no air of reality to the submission that the defendant may have been engaged in self-defence. There is no evidence that the defendant reasonably responded to a belief that force was being used against him.”
[89] The defence was precluded, by the disclosure failure, from exploring the possibility that the video could have provided independent evidence of Mr. Whyte’s propensity for violence. This, in turn, deprived the appellant of the potential evidentiary value of the video to his defence of self-defence. This was meaningful because it represented the loss of the possibility to tender evidence that could have answered one of the trial judge’s reasons for finding no air of reality: the absence of evidence that Mr. Whyte threatened or assaulted the appellant: Scopelliti, at para. 30. Accordingly, failing to disclose the video amounted to the loss of a potentially meaningful evidential resource for the defence. For this reason, non-disclosure of the video negatively impacted on trial fairness.
[90] The Crown argued that even if the video did provide independent evidence of Mr. Whyte’s propensity for violence, it could not have contributed to an air of reality here. The reason for this, in the Crown submission, was that there was no evidence – not even with the video – that could ground an air of reality to the requirement for self-defence set out in s. 34(1)(a) of the Code. This provision establishes that, for self-defence to be made out, an accused must have reasonably believed that force or threat of force was being used against them or someone else. I do not accept the Crown argument that the video could not have been relevant to an air of reality to self-defence.
[91] Section 34(1)(a) has been interpreted to involve the application of a modified objective standard: R. v. Khill, 2021 SCC 37, para 54. This means that the accused must have subjectively believed, on objectively reasonable grounds, that force or threat of force was being used against them: Khill, at para. 53. To determine whether this criterion is met, the accused’s beliefs are “assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to the accused’s belief or actions”: Khill, at para. 54.
[92] An accused is not required to testify or call any evidence in order to establish an air of reality: Cinous, at para. 53. The evidential foundation required to make out an air of reality “can be indicated by evidence emanating from . . . Crown witnesses,” and it can “rest upon the factual circumstances of the case or from any other evidential source on the record”: Cinous, at para. 53. This is true for all defences, and all required elements of defences: Cinous, at para. 57. Even those defences that are subjective or contain a subjective element, like the requirement set out in s. 34(1)(a). In other words, an air of reality can emerge from any source in the record or circumstance of a case.
[93] In this case, that the appellant did not testify or call evidence does not preclude a finding that there was an air of reality to the requirement that he had a reasonable belief that Mr. Whyte was threatening to use force or actually using force against him. This could have been drawn from other evidence in the case. Here it could be drawn from the evidence and circumstances that: the appellant was a Black man who was subjected to a racial slur; the appellant was living in a building in which many unpleasant things occurred regularly; the two complainants came to the appellant’s door to confront him; and Mr. Whyte was angry, upset, very loud, agitated, and provoking. These circumstances, combined with other evidence, could have contributed to a finding that an air of reality to the element in s. 34(1)(a) was made out.
[94] There is a reasonable possibility that non-disclosure of the video prevented the defence from investigating whether such other evidence was available. On appeal, counsel for the appellant (who was also defence counsel at trial), argued that if he had had the video, he might have interviewed the complainant in the 2021 incident, or considered calling that complainant as a witness. It is no stretch to imagine that the defence might have interviewed other residents in the same building as well. It is reasonably possible that this would have yielded other evidence from which a reasonable subjective belief of threat or force could have been drawn to establish an air of reality.
[95] However, in assessing the effect of the non-disclosure of the video on trial fairness, I am not to consider whether the missing evidence could have affected the outcome at trial: Taillefer, at para. 83. These are two separate inquiries: Taillefer, at para. 83. In other words, it is of no moment to trial fairness if the content of the undisclosed evidence could not have affected the reliability of the verdict. The question of trial fairness turns on whether reasonably possible uses of the evidence or reasonably possible investigative avenues were foreclosed by the disclosure failure: Dixon, at para. 34. Here, even if the undisclosed video on its own could not have contributed to an air of reality to self-defence, the non-disclosure deprived the defence of reasonably possible investigative avenues. Trial fairness was adversely affected.
[96] On appeal, the Crown also argued that non-disclosure of the video did not affect trial fairness because the video could not have been admitted at trial as Scopelliti evidence. In the Crown submission, Scopelliti evidence is not admissible in non-homicide cases where the complainant is alive and can be cross-examined as to their propensity for violence.
[97] In my view, this argument does not go to the question of whether the non-disclosure affected trial fairness. Even if the video was not itself admissible as Scopelliti evidence, the failure to disclose it prevented the defence from exploring reasonably possible avenues of investigation, as explained above. Overall trial fairness was adversely affected regardless of whether the video was admissible in evidence under Scopelliti. [2]
B. Did Operation of the Collateral Fact Rule Obviate the Need for Disclosure?
[98] Both times the defence applied for disclosure of the video, the trial judge dismissed the application because he found that the video was collateral.
[99] On appeal, the appellant submits that the trial judge erred in so holding. He argues that the collateral fact rule did not prevent the video from being received in evidence in this case. In the defence submission, the rule only bars reception of extrinsic evidence adduced solely to undermine the credibility of a witness in relation to a collateral issue. The video was not solely relevant to the appellant’s credibility. It was also relevant to self-defence. As such, according to the appellant, the video was not collateral. Its reception was not barred by the collateral fact rule.
[100] The Crown argues that the trial judge was correct in holding that the video was collateral. Having cross-examined Mr. Whyte about the 2021 incident, in the Crown submission, the defence was barred by the collateral fact rule from calling extrinsic evidence to contradict his testimony with a view to impeaching his credibility.
[101] In my view, the video was not collateral. It would not have been inadmissible in evidence through operation of the collateral fact rule.
[102] The collateral fact rule “prevent[s] contradictory evidence on issues that relate solely to a witness’ credibility on a collateral issue” (emphasis in the original): R. v. A.C., 2018 ONCA 333, para 50; R. v. P. (G.). If the video showed Mr. Whyte chasing the complainant up the stairs, pushing him down, and punching him twice in the head, it would have been relevant both to Mr. Whyte’s credibility and to his propensity for violence. The video went to more than simply Mr. Whyte’s credibility. It also went to the defence theory of the case that the appellant acted in self-defence. The trial judge erred in holding that the video was collateral.
[103] Moreover, the collateral fact rule could not properly have been the basis for dismissing an application for disclosure. It is a rule of evidence, governing the admissibility of evidence. It is not a rule governing disclosure. The video was obviously relevant because it was potentially useful to the defence, as described above. For that reason, disclosure was required. The defence was entitled to receive it. Whether the video would ultimately be receivable in evidence, or whether its reception would be barred by the collateral fact rule, was a separate and subsequent question. One to be determined by the trial judge on the basis of the uses for which the defence wanted to adduce it, against the backdrop of the evidence in the case and theories of the prosecution and defence. The trial judge erred in holding that the video was collateral, and in denying disclosure on that basis.
V. Disposition
[104] The appellant had a right to disclosure of the video. This right was breached when the trial judge dismissed his mid-trial application for disclosure. The breach of the right to disclosure violated the appellant’s right to make full answer and defence in the circumstances of this case. The trial judge erred in failing to order disclosure of the video.
[105] The appeal is allowed. A new trial is ordered.
J. R. Presser
Released: January 16, 2025
[1] In Abdella, Schreck J. included a footnote to para. 13, indicating that different considerations apply to the production of “records” as defined in s. 278.1 of the Criminal Code in prosecutions of sexual offences governed by s. 278.2 of the Code. In these circumstances, even if the Crown comes into possession of records, it may not disclose them without a court order made pursuant to the private records production regime established in ss. 278.2 to 278.7.
[2] I am aware that the application of Scopelliti in cases involving offences other than homicide has been questioned in some cases. See, for example, R. v. Williams, 2019 ONCA 743, at footnote 1, where the Court of Appeal for Ontario indicated that it was leaving “for another day whether the principles in Scopelliti apply to non-fatal offences against the person,” citing R. v. Borden, 2017 NSCA 45. To my knowledge, the Court of Appeal has not returned to address the issue since. The Supreme Court has not addressed it either. I note, however, that there are many cases in which Scopelliti evidence has been admitted, its admission has been considered, or the relevance of the holding in Scopelliti was assumed, in cases involving non-fatal offences against the person. See, for example, R. v. Shirley; R. v. Murphy, 2016 ONCA 705; R. v. Munro; R. v. Chartrand; R. v. Kitchen, 2020 NBCA 69; R. v. Jama, 2011 ONSC 187; R. v. Johnson, 2016 ABQB 633; R. v. E.L., 2013 ONCJ 136; R. v. S.H., 2020 BCPC 125; R. v. Alec, 2010 BCPC 11. Given my conclusion in this case that overall trial fairness was adversely impacted by the non-disclosure regardless of whether the video could be admissible, I need not further consider whether Scopelliti applies in cases involving offences other than homicide.