CITATION: R. v. La, 2025 ONSC 2786
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
ANTHONY LA
Applicant
A. Grady and S. Patterson, Counsel for the Respondent
E. Brownscombe, Counsel for the Respondent
HEARD: April 16, 2025
REASONS FOR JUDGEMENT
Bordin J.
The application
1The applicant is charged with the murder of Sabir Omer on September 14, 2021, at 2:45 p.m. The main issue at trial will be identification. The applicant may also raise a third party defence.
2Ten days after the murder of Sabir Omer, Yua Blat Kaw was murdered. Nejb Ahmed Nour, M.H.O. (a minor), and Abdaziz Omer plead guilty to manslaughter in relation to Kaw’s death. M.H.O is Sabir Omer’s brother, and A. Omer is his cousin. In the Agreed Statement of Facts filed in their guilty plea, Nour, M.H.O., and A. Omer agreed that the motive for the shooting was the “false belief” that Kaw was responsible for the murder of Sabir Omer.
3The applicant brought a third party records application to obtain disclosure from the Kaw murder investigation to advance a third party suspect application. It is clear from the materials filed and the submissions made by the applicant that the primary potential third-party suspect is Kaw.
4The applicant initially sought disclosure of the following records from the Kaw investigation:
a. Cell phone extractions;
b. Cell tower production orders;
c. Statements of the accused;
d. Notes of the investigating officers; and
e. All surveillance footage from the murder.
5In response to the initial third party records application, the Crown had an officer review the Kaw investigation file for evidence relevant to the identity of Sabir Omer’s killer, Kaw’s location when Sabir Omer was killed, animus, motive, and character evidence of witnesses. As a result of that review, the Crown produced the following information to the applicant.
6Following the disclosure by the Crown of the additional information, the applicant filed a supplementary notice that he was seeking disclosure of:
a. All the evidence found on the cell phone of Kaw (the Crown has disclosed only GPS locations from September 14, 2021); and
b. All evidence found on any seized cell phones believed to belong to Nour, M.H.O., and A. Omer.
Position of the parties
7As a result of the Crown’s additional disclosure, the applicant’s primary position is that the information he is seeking should be disclosed as first party disclosure pursuant to R. v. Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754, because it is in the possession of the Hamilton Police Service (“HPS”) and is relevant to identification and the applicant’s third party suspect application, which he submits has an air of reality. Further, the defence anticipates that Nour, M.H.O, and A. Omer may be called as defence witnesses at the applicant’s trial. The defence submits that the contents of Nour, M.H.O, and A. Omer’s phones may disclose the basis for their belief that Kaw carried out the killing of Sabir Omer and may include evidence regarding their character and credibility as relevant to their examinations.
8In the alternative, the applicant submits that if the information constitutes a third-party record, the test of likely relevance is met, and the material should be produced to the Court for inspection. In either case, the applicant submits that his right to make full answer and defence requires production of the requested information.
9The Crown’s position is that the information is not in the possession of the Crown and that the applicant’s request is a third party records request. The Crown says that the supplementary request by the applicant is overly broad, that the parties whose phone information is requested retain a privacy interest in the contents of their phones, and that the disclosure requested must be tailored to full answer and defence. The Crown notes that phones have immense storage capacity and generate intimate details of a user’s interests and habits without the knowledge or intent of the user and that to broadly assert that this type of information will reflect on the user’s character and credibility, without focusing the scope of the request, is a fishing expedition. The Crown submits that in failing to focus the supplemental request, the applicant has failed to meet his burden to establish the “likely relevant” standard.
10The Crown submits that Kaw was at school when Sabir Omer was killed and the contents of Kaw’s phone, including photographs, financial information, texts, notes, and browser history is not logically probative of Kaw as the shooter. The Crown’s position is that the contents of the phones of the other three individuals is not logically probative of their knowledge that anyone other than the applicant killed Sabir Omer. Moreover, the Crown submits that the belief of Sabir Omer’s family as to who killed him has no probative value and is inadmissible.
11The Crown’s position is that the evidence disclosed to the applicant establishes that Kaw had neither motive, means, nor opportunity to commit the murder of Sabir Omer and that there is no air of reality to Kaw as an alternate suspect.
The two disclosure regimes
12Two different regimes govern disclosure in criminal cases: first party disclosure under Stinchcombe, supplemented by the duties imposed upon the Crown and investigating police in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, and third-party disclosure under R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411: see R. v. Pascal, 2020 ONCA 287, at para. 100. The purpose of each regime is to protect an accused’s right to make full answer and defence, while at the same time recognizing the need to impose limits on disclosure when required: see Pascal, at para. 100, citing R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at para. 29; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 115.
13The application requires a determination of whether the information sought is first party disclosure, subject to the requirements and limits of first party disclosure or is third-party disclosure and must be “likely relevant” to be disclosable to the court for review.
Is the information subject to the first party disclosure regime?
14First party disclosure under Stinchcombe imposes a duty on the Crown to disclose all relevant, non-privileged information in its possession or control, whether that information is inculpatory or exculpatory, unless disclosure of that information is governed by some other regime: see Pascal, at para 101; Gubbins, at. para. 18.
15The accused’s Charter right to full answer and defence will be impaired where there is a “reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence”: see Gubbins, at para. 18.
16The Stinchcombe disclosure regime extends only to material in the possession or control of the Crown. The law cannot impose an obligation on the Crown to disclose material that it does not have or cannot obtain: see McNeil, at para. 22. However, as discussed in more detail below, the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown: see McNeil, at para. 24.
17The Court of Appeal for Ontario, in Pascal, held that Crown entities other than the prosecuting Crown – including the police – are third parties for the purposes of disclosure and are not subject to the Stinchcombe regime: see para. 103, citing Gubbins, at para. 20, McNeil, at para. 22, and R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 11.
18This does not relieve the prosecuting Crown from its obligation to make reasonable inquiries of other Crown entities and other third parties, in appropriate cases, with respect to records and information in their possession that may be relevant to the case being prosecuted: see McNeil, at para. 13. The Crown and the defence in a criminal proceeding are not adverse in interest for the purpose of discovering relevant information that may be of benefit to an accused: see McNeil, at para. 13.
19To fulfill its obligation to disclose to the Crown all material pertaining to its investigation of the accused, the investigating police force, although distinct and independent from the Crown at law, is not a third party; rather, it acts on the same first party footing as the Crown: see McNeil, at para 14.
20The Crown’s duty to disclose under Stinchcombe is triggered upon a defence request for disclosure: see Gubbins, at para. 19. The Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant: see Gubbins, at para 21, citing McNeil, at para. 49. The duty includes making reasonable inquiries of other Crown agencies or departments that could reasonably be in possession of evidence: see McNeil, at para. 49. The duty applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case: McNeil, at para. 50.
21Where the Crown refuses to disclose evidence for reasons of privilege or irrelevance, the defence can request a review; the burden is on the Crown to justify its refusal to disclose by showing that the information is “clearly irrelevant” or privileged: see Gubbins, at para 19, citing Stinchcombe, at pp. 339-40.
22In considering the duty of disclosure and which disclosure regime applies the Court in Pascal, at paras. 104-107 states:
104… When put on notice of potentially relevant material in the hands of the police or other Crown entities, the prosecuting Crown has a duty to make reasonable inquiries. Correspondingly, the police have a duty to disclose to the prosecuting Crown all material pertaining to its investigation of the accused. This material is often termed “the fruits of the investigation”: Gubbins, at para. 21; McNeil, at paras. 14, 22-24 and 52.
105The “fruits of the investigation” refers to the police investigative files, not their operational records or background information. In other words, “fruits of the investigation” refers to information “generated or acquired during or as a result of the specific investigation into the charges against the accused”: Gubbins, at para. 22.
106However, the police obligation of disclosure to the prosecuting Crown extends beyond the “fruits of the investigation”. The police should also disclose to the prosecuting Crown any additional information that is “obviously relevant” to the accused’s case. This “obviously relevant” information is not within the investigative files, but must be “disclosed under Stinchcombe because 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.
107To determine which disclosure regime applies to information, a court must consider 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.
23Justice Watt in R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, explains that “fruits of the investigation” accurately captures the subject matter of the first party/Stinchcombe disclosure obligation: see para. 92. Further, the term embraces relevant, non-privileged information related to the matters that the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses, or the reliability of evidence that may form part of the case to meet: see Jackson, at para. 92.
24“Fruits of the investigation” posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused. It refers to information acquired by means and in consequence of that investigation: see Jackson, at para. 93. The information includes, but is not co-extensive with, evidence, much less admissible evidence: see Jackson, at para. 93.
25Not all police records will be subject to first party disclosure: see Gubbins, at para 24. As explained at para. 23 of Gubbins:
In addition to information contained in the investigative file, the police should disclose to the prosecuting Crown any additional information that is obviously relevant to the accused’s case. The phrase “obviously relevant” should not be taken as indicating a new standard or degree of relevance: Jackson [R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161], at para. 125, per Watt J.A. Rather, this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. McNeil requires the police to hand such information to the Crown.
Is the information in the possession or control of the prosecuting Crown?
26The Crown’s position is that the information requested by the applicant is not in the possession of the Crown; it is in the possession of the HPS and is part of a separate investigation file.
27The applicant agrees that the information requested is in the hands of the HPS. However, he asserts that the HPS is the investigating police service involved in his charges, and thus the information is in the control of the prosecuting Crown. Further, the applicant says that the HPS believed there was a connection between the Kaw and Sabir Omer killings. The Crown concedes that the police believed there was a connection between the killings.
28In support of his position that the information is in the possession of the Crown, the applicant relies on R. v. Chaudhry, 2020 ONSC 6022. Chaudhry also wanted to advance a third party defence but the facts in Chaudhry differ from those in this case. Chaudry involved an application for limited records; specifically, occurrence reports, arrest reports, police notes, or any related materials in the possession of the Toronto Police Service and the Niagara Police Service concerning Mr. Omar (the alleged third-party suspect) where he was an accused, a person of interest, or a suspect. Mr. Omar had also been charged as a party to the shooting of the victim.
29The court in Chaudhry held that the occurrences or arrest reports generated by the Toronto Police where Mr. Omar was an accused, a suspect, or a person of interest should be produced as first party disclosure and that the occurrences or arrest reports generated by the Niagara Regional Police where Mr. Omar was an accused, a suspect, or a person of interest met the threshold of likely relevance and were to be produced to the court for review. The court’s determination turned on the fact that the Crown had conceded there was an air of reality to the third party suspect defence, Mr. Omar was alleged to be a party to the murder, the Toronto Police were the investigating agency, and the third-party regime applies to police that are not the investigating agency.
30Chaudhry cites R. v. Bonello, 2017 ONSC 4384, at paras. 17 and 20, for the proposition that criminal records of Crown witnesses are ordinarily first party disclosure, as a witness may be cross-examined on his or her record, but beyond that the O’Connor regime ordinarily applies to investigative reports and occurrence reports from different police services, or from the same police service involving different incidents. Bonello, at para. 20, states “[w]here investigative files and occurrence reports involving third party interests do not fall within the scope of first party disclosure obligations of the Crown under Stinchcombe, it falls to be determined under the O’Connor principles”.
31In view of the legal authorities, the nature of the disclosure sought, and that the information sought by the applicant arises out of a separate investigation, albeit by the same police force but different officers, I find that the Crown is not in possession of the broad scope of the cell phone information sought by the applicant which has not already been produced to the Crown by the police.
32However, that is not the end of the matter, I must consider whether 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. Where the information is part of “the fruits of the investigation” or is “obviously relevant” the first party disclosure regime will apply.
Is the information “fruits of the investigation” or “obviously relevant”?
Fruits of the investigation
33As noted above, the “fruits of the investigation” refers to the police investigative files. More specifically, it refers to information “generated or acquired during or as a result of the specific investigation into the charges against the accused”. It bears repeating that “fruits of the investigation” posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused; it refers to information acquired by means and in consequence of that investigation: see Jackson, at para. 93.
34Although the police believed that the two killings were related or connected in some way, they still conducted distinct investigations. In view of the definition of fruits of the investigation, within the case law, I find that the requested records are not matters the Crown intends to adduce in evidence against an accused, or information acquired by means of and in consequence of the investigation of the accused.
Obviously relevant
35If the information sought is not within the investigative files but is “obviously relevant” because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence, the police should disclose it to the prosecuting Crown. The Court in Jackson considered the meaning of relevance in the context of a first party disclosure obligation:
116In first party/Stinchcombe disclosure, "relevant" is characteristic of the material to be provided to an accused as "fruits of the investigation". In addition, although it may not fall fairly within the ordinary sweep of "fruits of the investigation", material that is "obviously relevant" to the defence case may need to be rustled up by the police, provided to the Crown and disclosed to the defence. Like the discipline records in McNeil. See McNeil, at para. 59.
125It is difficult to tease out of the phrase "obviously relevant" a new standard or degree of relevance. A better fit would seem to be that the phrase represents a comment on the obvious nature of the relevance of the record in the case to the witness' credibility.
36Following the applicant’s original application, the Crown produced the following information it received from the police:
a. Transcript of the video interview of A. Omer in which he references the applicant talking about the murder and a photograph shown to police.
b. Transcript of a video witness statement of Gu Htoo whose son was a friend of Kaw. Htoo spoke about a dispute between an “African American” group from 151 Queen and “Asian kids” from around Sanford Avenue, but she did not know any gang names.
c. Transcript of an audio witness statement of Percy Knowles who heard “street talk” that Kaw's murder was connected to the murder of a Somalian kid at Tim Hortons.
d. Transcript of a video witness statement of Kiera Passmore who heard that they thought Kaw was someone else and that is why they killed Kaw.
e. Det. Dave Tsuchida's notes of September 14, 2021, that reference Anferny Ventura, who declined to give a formal statement but said he heard Kaw had problems with people and it was “gang problems”.
f. A download of Kaw’s cellphone with GPS locations that place the phone at Kaw’s house, at his school (Bernie Custis Secondary School), at the KFC north of the school at lunch time, and then back to school for the afternoon on the day of the shooting.
g. A summary of confidential source information that chronicles “street talk” about the Kaw homicide.
h. The Criminal Records of M.H.O., A. Omer, and Nour.
37I understand from the parties that during the investigation into the Kaw homicide, the police downloaded the phones of Kaw, Nour, M.H.O. and A. Omer and that the applicant is seeking the full downloaded information, not just the information that has been produced by the Crown. I do not have any details of precisely what information was downloaded from the phones and what was not downloaded.
38Although the Crown submits that the information requested is not subject to first party disclosure, the Crown produced the above information in the context of a third party records application without resort to the O’Connor process. The Crown must have believed that the records were relevant and were subject to their first party production obligation. Indeed, in submissions the Crown acknowledged that the entire contents of the investigation file into Kaw’s death was not produced and that what was relevant to the charge against the applicant, as determined by the police, would have been produced.
39The Crown filed an affidavit of Det. Sgt. Obrovac of the HPS. Det. Sgt. Obrovac was not involved in the investigation of the applicant. Det. Sgt. Obrovac’s knowledge as set out in the affidavit comes from a conversation with Acting Det. Sgt. Reid. Det. Sgt. Obrovac deposes that Det. Sgt. Reid reviewed the “Kaw brief” for materials responsive to the application. Although he did not review the Kaw brief himself, Det. Sgt. Obrovac deposes that no other material in the brief, beyond the above information, is relevant to the application.
40Det. Sgt. Obrovac does not explain whether the cell phones of Kaw, Nour, M.H.O., and A. Omer were part of the Kaw brief or were reviewed. From the information produced by the Crown in response to the application it appears that only a portion of the information on Kaw’s cell phone was disclosed and that none of the contents of M.H.O., A. Omer, and Nour’s phones were disclosed.
41As noted, the applicant’s present request for records is framed as:
a. All the evidence found on the cell phone of Kaw (the Crown has disclosed only GPS locations from September 14, 2021); and
b. All the evidence found on any seized cell phones believed to belong to Nour, M.H.O., and A. Omer.
42In support of his position that the information is obviously relevant, the applicant relies on R. v. Day, 2025 ONSC 2043.
43Day was an application for records related to the stabbing victims’ convictions, general occurrence reports for outstanding charges, discharges, withdrawn or stayed charges, acquittals, uncharged offences, and other records relating to charges against one of the victims of the stabbing. It was not contested that the information sought was not in the possession of the Crown. The issue was whether the information was “obviously relevant”. The court granted the application for disclosure as first-party records.
44Day considered a number of other cases in which disclosure was sought. Those cases similarly sought a limited range of documents relating to police occurrence reports, synopses, criminal records, and Crown briefs relating to charges or uncharged incidents against Crown witnesses or complainants. Other disclosure related to videos of altercations between Crown witnesses or complainants and other persons.
45The applicant submits that the information sought is relevant to a possible third party suspect defence. He acknowledges that the defence must have an air of reality before an obligation to disclose arises.
Air of reality
46Justice Watt in R. v. Tomlinson, 2014 ONCA 158, at paras. 71-78 set out the governing principles of the third-party suspect defence:
71First, to begin with the uncontroversial. It is self-evident that if a person, A, is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X: R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.), at p. 757, affirmed 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824; and R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46.
72Second, evidence marshalled in support of a third party suspect defence, as with other evidence adduced in a criminal trial, must be compliant with the rules of admissibility. Said in a somewhat different way, the evidence proposed for reception must be relevant, material and admissible. The proponent does not get a free ride through the admissibility thicket upon mere announcement of “third party suspect”: R. v. Williams (1985), 1985 CanLII 6001 (ON CA), 1985 CanLII 113 (ON CA), 18 C.C.C. (3d) 356 (Ont. C.A.), at p. 366, leave to appeal refused, (1985) 18 C.C.C. (3d) 356n.
73Third, as with “proof” of any fact, the evidence on which an accused relies to demonstrate third party involvement must be relevant to and admissible on the material issue of identity: McMillan, at p. 757; Grandinetti, at para. 46.
74Fourth, to satisfy the relevance requirement, there must be a sufficient connection between the third party and the crime. Absent this link, the third party evidence is neither relevant nor material: Grandinetti, at para. 47; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121. The evidence may be direct or circumstantial but any essential inferences must be reasonable, grounded in the evidence, and not conjectural or speculative: Grandinetti, at para. 47.
75Fifth, we often use the term “opportunity” or “evidence of opportunity” to describe the nature of the connection between the third party and the conduct charged that is essential to provide an air of reality to the third party suspect defence. Absent this evidence, circumstantial evidence of an alleged third party’s disposition and motive, for example, would be excluded as immaterial: Grandinetti, at para. 48.
76Further, when disposition evidence is proffered for reception in support of a third party suspect defence, the manner in which the disposition is established varies. Sometimes, as in McMillan, the relevant disposition is established by the opinion evidence of experts. On other occasions, the third party may have accumulated one or several prior convictions that demonstrate a relevant disposition or propensity: See, R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 141; R. v. Dorfer, 2011 SCC 50, [2011] 3 S.C.R. 366, at para. 1.
77On the other hand, the fact that a person is charged with an offence, of which she or he is presumed innocent, says nothing about her or his character or disposition. As a general rule, the fact that a witness is charged with an offence has no bearing on the witness’ credibility and she or he cannot be cross-examined on that fact. If the fact of an outstanding charge has no bearing on a witness’ credibility, it seems illogical to conclude that the fact of a charge can be of service in establishing a third party’s disposition when that disposition is offered as circumstantial evidence of conduct.
78Finally, where a third party suspect defence is advanced at trial, the question for the trier of fact is whether, on the evidence as a whole, the possible involvement of the third party raises a reasonable doubt about the guilt of a person charged: R. v. Khan, 2011 BCCA 382, 282 C.C.C. (3d) 396, at para. 91.
47As set out by the Supreme Court in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 52 and 54, the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. Further, the test is not intended to assess whether the defence is likely, unlikely, or the likelihood of the defence succeeding, it is whether the evidence discloses a real issue to be decided by the jury.
Position of parties on air of reality
48The applicant asserts that the records he seeks are likely relevant to the following issues at trial:
a. The identity of Sabir Omer’s killer;
b. The whereabouts of Kaw at the time of the murder;
c. The dislike that Kaw had for Sabir Omer;
d. The motive that Nour, M.H.O., and A. Omer had to kill Kaw and why they believed Kaw had killed their family member; and
e. Evidence regarding the character of Nour, M.H.O., and A. Omer who may be witnesses at the trial.
49The applicant submits that there is an air of reality to the third party defence. He submits that the case against him is circumstantial and identity is the primary issue. The applicant submits that he and Kaw resemble each other, they are the same age, ethnicity, and size. Further, the case against the applicant is circumstantial, including the following facts:
a. Witnesses on scene who said the shooter had “Chinese eyes”;
b. Surveillance footage of the shooter that shows that the applicant has a similar height and weight to the shooter;
c. Surveillance footage four hours after the incident that shows the applicant with his co-accused after they had exited the getaway vehicles used in the homicide; and
d. Photographs from the applicant’s phone that depict him wearing a similar sweater to the one worn by the man who shot Sabir Omer.
50The applicant says there may be evidence on the cell phones that links Kaw to the clothing worn by the shooter.
51The applicant submits that the accused in Kaw’s murder had some reason to believe Kaw killed Sabir Omer. He submits that although the agreed statement of facts from the guilty plea, in the Kaw matter, indicated it was a false belief, it is not known why Nour, M.H.O., and A. Omer agreed to those facts or what lies behind the agreement. In addition, the applicant states that there is some evidence from the disclosure that Kaw might have been a member of a gang that was in a feud with Sabir Omer’s gang.
52The applicant argues that the information provided that Kaw’s phone was at the school at the time of the shooting does not mean there was no opportunity for Kaw to have shot Sabir Omer. The school is only 15 minutes from the location of the shooting and the location of a phone does not equate with the location of Kaw.
53Finally, the applicant asserts he may call Nour, A. Omer, and M.H.O. and requires the requested information to challenge their credibility.
54The Crown’s position is that there is no air of reality to the third party defence and so the documents requested are not obviously relevant.
55The Crown concedes that there is some evidence to establish motive on Kaw’s part and that this is one element in support of the third party defence. However, the Crown submits that motive is not enough and that there is not a sufficient connection between the third party and the crime. Further, there is no evidence of opportunity, as required to provide an air of reality to the third party suspect defence. The Crown submits that absent that connection and evidence, circumstantial evidence of an alleged third party’s disposition and motive is not sufficient.
56The Crown submits that Kaw did not have the opportunity to kill Sabir Omer because Kaw’s phone data shows that Kaw’s phone was at school in the morning, went to KFC at lunch, and then returned to school and was at the school at the time of Sabir Omer’s killing. However, the Crown concedes that the location of the phone alone does not necessarily equate to the location of Kaw.
57The Crown states that A. Omer, in his statement, made it clear that the information he was receiving was that the applicant was the one saying Kaw had killed Sabir Omer and references the agreed statement of fact from A. Omer’s guilty plea in which he acknowledged that it was a “false belief” that Kaw was Sabir Omer’s killer.
58The Crown adds the following facts to those provided by the applicant, which the Crown says establishes that there is no air of reality to the third party suspect defence:
a. Sabir Omer’s shooter appeared to be surveying the scene, awaiting the arrival of Sabir Omer. A Ford Fusion, rented by a close friend of the applicant, J. Eccleston, was also observed circling the area in the hour leading up to the shooting.
b. The shooter fled south immediately after the shooting and continued south. Police obtained video throughout Hamilton, tracking the shooter and the Ford Fusion. They appear to meet up and leave the city minutes after the shooting.
c. Police located the Ford Fusion on November 4, 2021. A download of the infotainment system recorded the applicant’s cellphone connecting to that system at 3:22 p.m. on September 14, 2021.
d. A witness to the shooting described the shooter as an “Asian male”.
e. The applicant’s cellphone bounced from the cell tower proximate to the murder scene on the day of the murder from 2:08 to 2:40 p.m. as he conversed with J. Eccleston. The applicant’s cellphone engaged in no further activity until after the shooting, at 3:20 p.m., when he sent a text message from Burlington.
f. The applicant engaged in a snapchat conversation seven days before the murder, in which HMS (Sabir Omer’s gang) was called “pussyfoots”. The applicant also stated that they were about to get the drop on HMS, and that they had identified Sabir Omer.
g. The applicant created a video that was circulated, depicting two people firing guns captioned “running down hms”, six days before the murder.
h. The applicant was captured on surveillance footage at 57 Forest Avenue in the company of J. Eccleston 81 minutes after the murder.
i. J. Eccleston took a video of the applicant two days after the murder in which the applicant says “thank you for the FB treat” (which the Crown says is a widely known nickname for Sabir Omer), while J. Eccleston points his fingers like a firearm and makes gunshot sounds.
59In totality, the Crown submits that there is no connection between Kaw and the Sabir Omer homicide. Yet the Crown concedes that the HPS recognized a connection between the killing of Sabir Omer and Kaw and that Kaw’s killing was in retaliation for Sabir Omer’s killing.
60Much of the evidence referred to by the Crown does point toward the applicant as the shooter. Taken at its highest, at this stage, there is some evidence of motive on the part of Kaw and the possibility of opportunity is not ruled out. Although agreed statements of fact in a guilty plea are acknowledged as true, it is not known what led to the wording in the agreed facts. Something led A. Omer, M.H.O., and Nour to believe Kaw was the killer. What that was is not disclosed by the agreed statement of facts. There is evidence that rival gangs may have been an issue and a suggestion that Sabir Omer may have belonged to one. The police believed there was a connection between the two killings. There are similarities in the appearances of the applicant and Kaw.
61At this stage of the proceeding, I do not yet have the evidence that will be tendered at trial. What I have can best be described as a theory with some evidence to suggest there might be an air of reality to the third party suspect defence. However, in my view, it is sufficient to establish an air of reality to the defence for the purposes of disclosure. Particularly in light of the fact that the Crown has already disclosed some information from the Kaw brief. However, the Crown has not provided information to the court as to what was downloaded from the phones and the extent of the review conducted of the phones by the police. Indeed, the evidence tendered by the Crown of the review of the “Kaw brief” is entirely hearsay.
62I find that the Crown has a first party disclosure obligation with respect to the information requested, including the cell phones of Kaw, Nour, A. Omer, and M.H.O. However, there remains one further issue to be considered, which can best be described as the scope of the disclosure request and obligation.
Scope of the disclosure request and disclosure obligation
63The Crown raised concerns with the scope of the disclosure request and the privacy interests engaged. First, the Crown submits that the scope of the disclosure request makes it so that the Crown cannot make a determination as to what should be reviewed and produced. In submissions the Crown said that if the applicant could point to something specific that should be disclosed, the Crown could inquire whether such information existed.
64On the other hand, the applicant submits that he is entitled to the entirety of the cell phones’ content, as requested. The applicant says that the information should be handed over to him for his review to determine what is relevant. I do not agree that the first party disclosure regime entitles the applicant to this.
65The information requested in the applicant’s supplemental notice of “all evidence” on the cell phones of Kaw, Nour, A. Omer, and M.H.O. is much broader than the information requested in the cases relied upon by the applicant. I note that Chaudhry, Day, and the cases considered in Day all contain limited disclosure requests.
66In submissions the applicant acknowledged that the cell phones could include a vast amount of data, including personal data such as financial and medical information as well as metadata. Much of this would not be relevant or producible.
67Part of the issue is that it is not clear what the police have in the Kaw brief. The court was not advised that an inventory of the type of information contained on the requested cell phones was provided to the Crown or the applicant. Another issue is that the applicant has not made an effort to make a more specific request of precisely what he seeks from the cell phones – is it text messages, emails, social media posts, and/or internet searches that pertain to the specific issues expected to be in play at trial and in a third party suspect application? As presently framed, it appears to be significantly broader than that.
68Justice Goldstein in Chaudhry, at para. 36, noted that as a practical matter there must be some limits on what is produced. Otherwise, (to mix metaphors) police forces could become bogged down in producing irrelevant material as a result of fishing expeditions.
69With respect to the Crown’s assertion that information on the cell phones is subject to privacy interests of the owners, the Supreme Court in McNeil at paras. 12 and 18-20 held:
12… As this Court stated in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668: “Privacy is not an all or nothing right. It does not follow from the fact that the Crown has possession of the records that any reasonable expectation of privacy disappears” (para. 108). This principle holds equally in respect of criminal investigation files relating to third party accused that are not in the possession or control of the prosecuting Crown. There can be no assumption that criminal investigation files relating to third party accused persons do not attract an expectation of privacy absent consideration of their particular contents and other relevant factors. The existence of a reasonable expectation of privacy and its impact, if any, on a third party’s obligation to produce is always a contextual, fact-based inquiry. Likewise, no blanket ruling can be made in respect of privacy interests in police disciplinary records without regard to their contents.
18While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession. …
19As this Court confirmed in Mills, the Crown’s obligation under Stinchcombe to disclose the fruits of the investigation does not signify that no residual privacy interest can exist in the contents of the Crown’s file. It should come as no surprise that any number of persons and entities may have a residual privacy interest in material gathered in the course of a criminal investigation. Criminal investigative files may contain highly sensitive material including: outlines of unproven allegations; statements of complainants or witnesses — at times concerning very personal matters; personal addresses and phone numbers; photographs; medical reports; bank statements; search warrant information; surveillance reports; communications intercepted by wiretap; scientific evidence including DNA information; criminal records, etc. The privacy legislation of all 10 provinces addresses the disclosure of information contained in law enforcement files. …
20Implicit in the Crown’s broad duty to disclose the contents of its file under Stinchcombe are not the absence of any residual expectation of privacy, but rather the following two assumptions. The first is that the material in possession of the prosecuting Crown is relevant to the accused’s case. Otherwise, the Crown would not have obtained possession of it (O’Connor, at para. 12). The second assumption is that this material will likely comprise the case against the accused. As a result, the accused’s interest in obtaining disclosure of all relevant material in the Crown’s possession for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. These two assumptions explain why the onus is on the Crown to justify the non-disclosure of any material in its possession.
Disposition
70The information requested by the accused is subject to the first party disclosure regime. However, the applicant’s disclosure request is too broad and, on the record before me, the Crown has provided no evidence of the materials contained in the requested disclosure and in the Kaw brief. The Crown is to forthwith provide to the applicant a list of the types of information from the requested cell phones found in the Kaw investigation file. The applicant is then to provide to the Crown a more detailed request as to the disclosure sought and the issues to which they are relevant. The Crown is required to then comply with its first party disclosure obligations.
71I am not directing any particular format for the information to be produced by the Crown and for the applicant’s more detailed request for information. The point is that the Crown’s disclosure of what information is in the possession of the police should enable the accused to make an appropriately tailored request for disclosure. If the parties require further direction, they may schedule an appearance before me through the trial coordinator’s office.
Bordin, J.
Released: May 6, 2025