Court File and Parties
Court File No.: CR-24-52
Date: 2025-01-23
Ontario Superior Court of Justice
Between:
His Majesty the King – and – G.N., Accused
Appearances:
Ms. E. O’Marra, for the Crown
Ms. A. Banister-Thompson, for the Accused
Heard: January 23, 2025
Endorsement
This endorsement has been edited in order to comply with the publication ban in place and so that it can be published in its current form.
Conlan J.
Introduction
[1] This Endorsement shall be uploaded to the electronic Indictment and copied to both counsel who appeared at court today. The accused is remanded to the next pretrial applications date of April 24, 2025 at 10:00 a.m., in-person.
[2] Today, the Court heard the defence application for directions as to whether it must follow the Mills regime under subsection 278.3(1) of the Criminal Code and bring an application for production of the formal Law Enforcement Complaints Agency (formerly the Office of the Independent Police Review Director) complaint form (“Complaint”) completed by the complainant sometime prior to the involvement of the police.
[3] This type of application for directions should be decided swiftly so that more substantive matters in the proceeding can be kept on track. This relatively brief ruling has been written with a view to being faithful to that objective.
Ruling on the Application
[4] This Court agrees with the position advanced by the Crown and rules that the accused must bring the subsection 278.3(1) application.
[5] This Court orders, further, as follows:
The hearing today was held in camera under subsection 278.4(1) of the Criminal Code; in that regard, it is my opinion that an application for directions as to whether an application is required under subsection 278.3(1) should, in terms of the open-court principle, be treated no different than stages 1 or 2 of such an application;
The Crown shall provide a copy of this Endorsement, forthwith, to (a) the record holder and to (b) the complainant (who already has independent counsel), and by doing so it shall be considered that this Court’s responsibility to inform those persons of their rights to participate in and be represented by independent counsel at stages 1 and 2 of the subsection 278.3(1) application has been fulfilled;
Stages 1 and 2 of the subsection 278.3(1) application shall be heard on the same date, by me, with 2.5 hours set aside for the entirety of the matter;
The notice period (the period of time between the date of service of the third-party records application on all who are entitled to service and the hearing date of the said application) is hereby abridged to not less than twenty (20) calendar days;
The hearing date of the subsection 278.3(1) application shall be no later than April 4, 2025, in order to preserve the further dates for the pretrial applications in this proceeding commencing on April 24th; and
Sufficiently before the hearing date of the subsection 278.3(1) application, it shall be canvassed with the complainant whether she consents to the production of the Complaint to the defence, and if the said application is rendered moot as a result of that enquiry then counsel shall advise the trial office of that without delay.
Guidance and Authority
[6] I strongly encourage all counsel to read carefully paragraph 42 of the decision of Justice Charron, for a unanimous Supreme Court of Canada, in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66.
[7] This subsection 278.3(1) application cannot be permitted to morph into a make-work project for the defence.
Analysis
[8] This Court has ruled that the defence must bring the said application. It is, undoubtedly, a ruling grounded in judicial conservatism; caution; acquiescence to the technical correctness of the Crown’s position. It is, I must confess, not really the ruling that I wanted to make, however, I think it is the legally correct ruling based on the definition of a “record” in section 278.1 of the Criminal Code and based on paragraph 104 of the decision of the Supreme Court of Canada in R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577. Where the judge is uncertain whether the proposed evidence is a “record”, which is the case here, the judge should instruct the accused to proceed with an application.
[9] The Crown is correct that there is a strong likelihood that this Complaint will be ordered to be produced to the defence. Paragraph 42 in McNeil, supra, would certainly suggest that. If this Complaint ended up in the hands of the prosecution, would it be expected that it be disclosed to the defence? Almost certainly yes.
[10] The accused is charged with several offences allegedly committed against his wife, including sexual assault. The evidence filed on the application for directions makes it clear that but for the Complaint, there would have been no police investigation. The Complaint was the very impetus for the police investigation, including the interview between the complainant and the Toronto Police Service. That interview was spawned by and based exclusively on the Complaint. By analogy, albeit an imperfect one, if a complainant walked into a police station and gave a handwritten letter to an officer which summarized the allegations and was then interviewed by the officer, would anyone argue that the handwritten letter ought not to be disclosed to the defence? I think not.
[11] Counsel for the accused made a good argument that the Complaint is, in fact, not a “record” within the meaning of section 278.1 because there is no reasonable expectation of privacy associated with the Complaint. I am not sure of that, however, and therefore I follow the binding authority in J.J., supra referred to above.
[12] The defence cannot be faulted for bringing the application for directions. The Complaint is not obviously a “record”. The application for directions was argued very succinctly and hardly took any court time at all. If successful, it would have streamlined the process and would have saved more court time than it expended. It was, therefore, a worthwhile endeavour.
Conclusion
[13] The result, however, is that the accused must bring the third-party records application.
Conlan J.
Released: January 23, 2025