Citation: R. v. Melvin, 2009 NSSC 249
Date: 20090626
Docket: CRH 297590
Registry: Halifax
Between:
Her Majesty the Queen
Plaintiff
v.
Cory Patrick Melvin and Andrew Jason Hudder
Defendants
Restriction on publication: Restriction on publication pursuant to s.486.5 of the Criminal Code
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Editorial Note
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Justice Kevin Coady
Heard: June 17, 18, 22 & 23, 2009, in Halifax, Nova Scotia
Oral Decision: June 26, 2009
Written Decision: August 18, 2009
Counsel: Christine Driscoll for the crown
Jim Gumpert, QC for the crown
Warren Zimmer for Andrew Hudder
Josh Arnold, QC for Cory Melvin
Sandra MacPherson Duncan, QC for Cst. A.
Lori Hill, for Cst. A.
Martin Ward, QC, for Deputy Chief MacNeil & Halifax Regional Police
By the Court: (Orally)
[1] Mr. Melvin and Mr. Hudder face an 18 count indictment which is scheduled for trial in April, 2010.
[2] The defence has made several requests for disclosure pursuant to the Supreme Court of Canada decision in R. v. McNeil, 2009 Carswell Ontario 116. They are seeking discipline records for Det/Cst. A..
[3] These records are presumptively private as per section 76(2) of the Police Act.
[4] Shortly after McNeil was released, Halifax Regional Police (HRP) identified records of misconduct which might be captured by McNeil and forwarded to the Crown to determine relevancy.
[5] Thereafter, Deputy Chief McNeil met with senior crown attorney Denise Smith at the police station to discuss disclosure pursuant to R. v. McNeil.
[6] While Cst. A.’s entire internal disciplinary records were present, they were not viewed or reviewed by Ms. Smith. Ms. Smith, at the time of that meeting (March 27, 2009), was not aware of what was in Cst. A.’s internal disciplinary record.
[7] What Ms. Smith did know at that meeting was that HRP was prepared to release Cst. A.’s Form 12 as first party disclosure pursuant to R. v. Stinchcombe.
[8] After that meeting the police did not forward any other documents to the Crown as first party disclosure. It was their view that the Form 12 met all of their Stinchcombe/McNeil disclosure obligations and if anything more were to be provided to the defence, it would have to be by way of an O’Connor application.
[9] This Form 12 dated September 17, 2008 sets forth a disciplinary allegation, the decision and the penalty. It related to an internal disciplinary proceeding. It is clear on its face that the allegations made and acknowledged do not arise from Cst. A.’s investigation of these alleged offences.
[10] The Defence acknowledges that they are seeking more of the file for the purpose of challenging Cst. A.’s credibility.
[11] Credibility is the trial issue at play in this application. This is an issue that often arises in these types of cases, where the police have enticed an accomplice to testify for the Crown in return for compensation and immunity.
[12] In this case Cst. A. is that persons’ handler.
[13] Let me review the position of the parties:
[14] The Provincial Crown’s position is that the provision of the Form 12 satisfies its obligations as set out in McNeil and is first party disclosure as per Stinchcombe. Further, that any additional contents are third party records and if the defence wants access, they must follow the O’Connor procedure.
[15] The Intervenor’s (McNeil and HRP) position is that the Form 12 is the appropriate record of the “disciplinary default” in this case, and that nothing else is to be produced as first person disclosure and that anything further would trigger O’Connor. These Intervenors argue that the Form 12, with its summary of the facts, is consistent with the balance dictated by McNeil between the demands of the accused and the privacy interests of the police officer.
[16] The Intervenor’s (A. & MAPP) position is that the disclosure of the Form 12 exceeded that authorized by McNeil as first party disclosure, and, as such, was erroneously disclosed by Deputy Chief McNeil, and that it should be removed from the disclosure package and strict limits placed on its use.
[17] It is Cst. A.’s position that the events caught by the Form 12 are not “serious misconduct,” and therefore not part of Stinchcombe disclosure and should only be accessible through the O’Connor regime.
[18] Cst. A. argues, in the alternative, that if the Form 12 conduct is caught by first party disclosure, “that the Form 12 is the only document necessary to meet the disclosure requirement.”
[19] The Applicant Melvin’s position is that Cst. A.’s records are caught by first party disclosure and that the Form 12 does not fully satisfy that obligation. Mr. Arnold argues that his client is not making “a sweeping request.” In his brief he states that “any and all information in the hands of the Halifax Regional Police Service for which there is a reasonable possibility that it is likely relevant to the Applicant’s ability to make full answer and defence, should be ordered to be disclosed to the Applicants.”
[20] The Applicant Hudder’s position is the same as that of Mr. Melvin.
[21] R. v. McNeil urges avoidance of the O’Connor regime in these situations so as to avoid long drawn out applications.
[22] The Supreme Court of Canada was of the view that placing the onus on first party disclosure, would result in a more streamlined approach and that the production of relevant records would be treated the same as the “fruits of the investigation” information.
[23] The guidance from the Supreme Court of Canada is found at paragraph 15 of the McNeil decision:
15. As I will explain, records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the “first party” disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. The Crown, in turn, must provide disclosure to the accused in accordance with its obligations under Stinchcombe. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O’Connor regime for third party production.
[24] That is the overriding direction.
[25] The components of that direction are:
1. “Findings of serious misconduct”
2. Officers involved in the investigation.
3. Falls within the scope of the first party disclosure package due to the Crown where that conduct
(a)could reasonably impact on the case against the accused
4. Crown must disclose to the accused as per Stinchcombe.
5. Records that do not fall within scope of first party disclosure are governed by O’Connor.
[26] While theoretically sound, the perimeter surrounding these applications are still somewhat unsettled for the following reasons:
_ The evidence and content of the discipline record beyond the Form 12 are unknown to the Defence.
_ If the application is about first party disclosure, the Court does not have the kind of reviewing role as in an O’Connor application.
_ The defence is forced to trust the police department’s judgment as to what discipline documents are caught by first party disclosure.
[27] These are some of the practicalities associated with these applications.
[28] This Court must look closely at McNeil to assess where McNeil and Stinchcombe intersect.
[29] At paragraph 14 (McNeil) the court concluded that a police force, “although distinct and independent from the Crown at law, it is not a third party. Rather, it acts on the same first party footing as the Crown.”
[30] Therefore, Stinchcombe comes into play.
[31] Stinchcombe requires production of “any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.”
[32] At paragraph 18 the Court states that “while Stinchcombes automatic disclosure obligation is not absolute, it admits a 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.”
[33] While O’Connor addresses documents in which a third party has an expectation of privacy, McNeil recognizes that there may often be some expectation of privacy in first party disclosure documents. The Court stated at paragraph 20:
20 Implicit 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.
[34] The Court, at paragraphs 43 and 44, also addressed “guarding against unnecessary intrusions into privacy interests.”
43 That is not to say, however, that residual privacy interests in the contents of criminal investigation files should be disregarded. As concluded in the Martin Report, at p. 181: (reference at AG factum, at para.24):
The privacy of the victim and any other witnesses must yield to preparing a full answer and defence. But it need not yield any further. The Committee considers that provided the making of full answer and defence is not impaired, it is desirable to permit limitations on the use of disclosure materials that recognize the privacy interests of victims and witnesses.
44 The same applies in respect of police disciplinary records, or any other third party records. The court should ensure that a production order is properly tailored to meet the exigencies of the case but do no more.
[35] The Court goes on to state at paragraph 44 that in deciding what information can assist in a trial (for disclosure purposes) “material that would not, on its own, be admissible may nonetheless be of use to the defence, for example, in cross-examining a crown witness on matters of credibility or in pursuing other avenues of investigation.”
[36] There is strong language in McNeil favouring disclosure where the targeted materials can be tied to a trial issue, including credibility. But there is also a caution that privacy cannot be disregarded. The Court stated at paragraph 45 of McNeil:
45 Ascertaining the true relevancy of records targeted for production may become particularly important when the information on the production application concerns police disciplinary records. The contentious nature of police work often leads to public complaints, some legitimate and others spurious. Police disciplinary proceedings may also relate to employment issues or other matters that have no bearing on the case against the accused. The risk in this context is that disclosure, and by extension trial proceedings, may be sidetracked by irrelevant allegations or findings of police misconduct. Disclosure is intended to assist an accused in making full answer and defence or in prosecuting an appeal, not turn criminal trials into a conglomeration of satellite hearings on collateral matters.
[37] The Court goes on to say that to ensure that only relevant material is produced, and that no unwarranted invasion of privacy interests occur, the Court may find it necessary to make a production order subject to conditions.
[38] McNeil clearly brings the Crown into the first party disclosure process. At paragraph 48 the Court states that the Crown is not simply a passive recipient of relevant information with any obligation of its own to seek out and maintain relevant material. As stated at paragraph 49:
49 The Crown is not an ordinary litigant. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so. Ryan J.A. in R.v. Arsenault (1994), 153 N.B.R. (2d) 81 (C.A.), aptly described the Crown’s obligation to make reasonable inquiries of other Crown agencies or departments. He stated as follows:
When disclosure is demanded or requested, Crown counsel have a duty to make reasonable inquiries of other Crown agencies or departments that could reasonably be considered to be in possession of evidence. Counsel cannot be excused for any failure to make reasonable inquiries when to the knowledge of the prosecutor or the police there has been another Crown agency involved in the investigation. Relevancy cannot be left to be determined by the uninitiated. If Crown counsel is denied access to another agency’s file, then this should be disclosed to the defence so that the defence may pursue whatever course is deemed to be in the best interests of the accused. This also applies to cases where the accused or defendant, as the case may be, is unrepresented ... .
[39] The Court goes on to state at paragraph 50 that “the same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility and/or reliability of the witness in a case.”
[40] The Court pointed out at paragraph 51 that “by properly fulfilling its dual role as an advocate and officer of the Court, Crown counsel can effectively bridge much of the gap between first party disclosure and third party production.”
[41] I find it clear that both the Crown and the police are partners in obtaining/providing first party disclosure. It is a shared obligation.
[42] The Court commented on the application of this obligation as follows at paragraph 53 of McNeil:
53 While the obligation itself is firmly established, the difficulty lies in identifying the contours of relevance for the purposes of the police’s first party disclosure obligation. The particular question that this case exemplifies is whether information of misconduct by a police officer involved in the case against the accused should form part of the first party disclosure package provided to the Crown for its assessment of relevance according to the edicts of Stinchcombe. Obviously, the accused has no right to automatic disclosure of every aspect of a police officer’s employment history, or to police disciplinary matters with no realistic bearing on the case against him or her. However, where the disciplinary information is relevant, it should form part of the first party disclosure package, and its discovery should not be left to happenstance.
[43] The Ferguson Report is referenced in McNeil. Justice Ferguson was retained by the Toronto Police Chief to provide an opinion on the so called “contours of relevance.”
[44] The question put to Justice Ferguson was to “review when, in what manner and under what circumstances does the police service have an obligation to bring to the attention of the Crown, alleged or proven acts of misconduct of a police officer who will be a witness or was otherwise involved in an investigation that has led to a criminal proceeding.”
[45] Justice Ferguson stressed the importance of this type of information coming forward as part of a first party disclosure obligation. McNeil referenced this at paragraph 56:
Once into O’Connor, it is difficult, if not impossible, for the defence to meet the threshold required to access the records. Unless the officer is notorious or the defence personally knows details of the officer’s files, the defence will be found to be on nothing more than a fishing expedition and access will be denied. A diligent officer-in-charge will not likely know the full employment history of each police witness, and, currently, is not required to make any inquiries. Short of a criminal conviction for dishonesty, nothing is likely to be provided to the Crown for disclosure analysis. Even convictions for dishonesty may not always be revealed. This is clearly unsatisfactory.
[46] Justice Ferguson also commented on the joint obligations of police and Crown at paragraph 59 where he stated that “upon receiving this information from police, the Crown act as “gatekeeper,” sorting out what parts of this material, if any, should be turned over to the defence in compliance with the Crown’s Stinchcombe obligation disclosure.”
[47] Justice Ferguson recognized that the law of disclosure is an expanding principle. He stated at page 10 of his report:
“If anything the trend is toward an ever more onerous obligation on the Crown to ensure increasingly complete disclosure to the defence.”
[48] And further:
“The threshold test of relevance has steadily become more expansive and inclusive. This trend in law means that the disclosure of police personal records has become problematic for both the police and the Crown.”
[49] Reference is made to R. v. Atikian (1990), O.R. (3d) 263 at page 11 of the report:
“Failure on the part of the police to provide the Crown with relevant information may lead to a successful charter challenge, even if the Crown did not know of the existence of such information, let alone have the information in its possession.”
[50] In fact Justice Ferguson goes so far as to say at page 11 that “records in the possession of the police are deemed to be in the possession of the Crown, subject to a claim of privilege.”
[51] In R.v. Vokey (1992), 102 Nfld & P.E.I.R. 275 (Nfld C.A.) the Court stated starting at para.74:
[74] ... The purpose of disclosure is to enable an accused person to make full answer and defence. If the disclosure is to be meaningful, it is incumbent upon Crown counsel to procure from the police all relevant materials gleaned from the investigation and, within his or her reviewable discretion, to disclose the results to defence counsel.
[75] The material generated as a consequence of police investigation would, of course, be more than what is required either by the Crown to prosecute or by the defence to make full answer and defence. Not all of it would be required by Crown counsel or would have to be disclosed to defence counsel.
[76] The duty rests upon Crown counsel to obtain from the police all material that should be properly disclosed to defence counsel. It is not for the court to direct what should pass between the police and Crown counsel but both should be aware that, if Crown counsel is unable to make proper disclosure because he or she has not obtained from the police of all such material, a new trial may be ordered. It is, once again, a matter of common sense.
[52] Emerging from McNeil, and other authorities cited, is the principle that Messrs Hudder and Melvin are entitled to Cst. A.’s discipline file as first party disclosure where “the finding of misconduct could reasonably impact on the case against the accused,” or that there is a reasonable possibility that it may assist the accused of the right to make full answer and defence.
[53] This must be balanced against Cst. A.’s privacy. All materials in his discipline file that cannot impact on the case against the accused must be respected and not form part of first party disclosure. But there must be a realization that there is an element of residual privacy that is likely to be compromised by first party disclosure.
THE INTERVENOR - A. & MAPP:
[54] As I stated earlier, this party takes the view that the release of the Form 12 was an “over reach” and, as such, requires remediation.
[55] This party argues the conduct captured by the Form 12 is not “serious misconduct” as described in McNeil and that if the defence feel they can achieve the first step in O’Connor, that they can proceed in that fashion.
[56] I believe there is a distinction between “serious misconduct” for the purposes of internal discipline and for the purpose of first party disclosure.
[57] Ms. MacPherson Duncan argues that if disclosure is not limited to “serious misconduct” when its connection to the trial is credibility, then “all misconduct, however minor, could be argued to have some bearing on the accused’s case, even if the minimal probative value is highly outweighed by prejudice to the police officer in question.”
[58] With the greatest respect, I do not agree with these submissions. There can be circumstances where a discipline infraction is a minor career transgression requiring little by way of consequences, but yet it may have significant credibility impact in a criminal trial.
[59] Obviously the record will have greater impact on cross-examination if it discloses even minor elements of deceit, lack of forthrightness, or dishonesty.
[60] While I recognize that Cst. A. was not convicted or sanctioned for deceit or corrupt practices, his actions as displayed in the Form 12 and summary amount to more than a minor transgression.
[61] The opening of the clandestine bank account by Det. Cst. A. raises questions of :
1. Truthfulness to the bank.
2. Deceitfulness to his spouse.
3. Exploitation of position for advantage.
4. Fabrication of documents.
5. Misrepresentation.
[62] In other words, these actions impact on his credibility.
[63] This amounts to more than an “employment matter.” This is the kind of activity envisaged by McNeil.
[64] I am satisfied the first party disclosure of the Form 12 was warranted by McNeil. I will address further disclosure when I deal with the applicant’s arguments.
THE INTERVENOR - DEPUTYCHIEF McNEIL & HRPS:
[65] Mr. Ward argues that the police have complied fully with McNeil in providing the Form 12 and anything further will have to be subjected to an O’Connor application.
[66] Mr. Ward was careful to explain that his clients are caught between the dictates of McNeil, and the privacy interests of their members.
[67] Mr. Ward argues that his client is the front line in attempting the balance between the interests of the member and the accused.
[68] This Intervenor argues that the Form 12 “enables the accused to fully test the credibility and reliability of the officers testimony based on the disciplinary default which involved misrepresentation.”
[69] With the greatest respect, I do not accept this argument as an overriding principle. Effective and meaningful cross-examination is enhanced by greater background information.
[70] It may exist in Cst. A.’s file, or it may not.
[71] This Intervenor argues “there is no evidence that any of the investigation material or any other employment information would add anything of value to this exercise.”
[72] We really don’t know if this is so.
[73] This is the same dilemma faced by accused at the first step in O’Connor applications. They do not know what the targeted records contain, or even if they exist.
[74] It is this lack of knowledge that results in many O’Connor applications being dismissed as “fishing expeditions.”
[75] This is the reason why the Court in McNeil decided to shift these discipline records to first party disclosure, with O’Connor as a kind of insurance policy.
[76] I have already commented on the connect between the Crown and the police surrounding disclosure. They must err on the side of production when in doubt. They must produce any records that are reasonably possible to assist the accused in making full answer and defence. They should only hold back on documents that are (1) clearly irrelevant, (2) privileged, or (3) governed by law (ie. Mills). They must be prepared to defend non-disclosure.
[77] I will comment further on whether the Form 12 is sufficient when I deal with the applicant’s arguments.
PROVINCIAL CROWN:
[78] The Provincial Crown argues that the Form 12 is an appropriate response to McNeil and that anything further is third party and must follow the O’Connor principles.
[79] This position is not at a variance with the position of the Intervenor - McNeil and HRPS.
[80] Ms. Driscoll argues in her brief that “the investigation into the opening of the bank account by Cst. A. does not relate to the facts of the charges against the accused. The police disciplinary investigation file does not contain fruits of the investigation.”
[81] While I agree that historically these documents would qualify as third party disclosure, and not fruits of the investigation, I am of the view that McNeil changes this principle.
[82] McNeil clearly states that if the records are capable of “impacting on the case against the accused, then it is a first party disclosure obligation.”
[83] The Provincial Crown as well as the intervenors argue that if the officer has an expectation of privacy in the records that the route to follow is O’Connor.
[84] Keeping in mind that full answer and defence can trump privacy, it is not always apparent whether the officer has an expectation of privacy and where full answer and defence ends and privacy concerns become more worthy of protection.
[85] This is recognized in McNeil starting at paragraph 37:
There is some merit to the proposal of looking first at whether there is any expectation of privacy in the targeted records. Indeed, if it is clear upon inspection of the documents and their contents that there is no basis upon which the third party record holder or any other interested person could claim a reasonable privacy interest, there is no balancing of interests left to perform.
38 The difficulty with this approach, however, is that it is largely premised on the conclusion that the existence of a reasonable expectation of privacy may be determined solely by characterizing the type of record at issue. While this may be possible in respect of some records, determining whether an expectation of privacy attaches to a particular record usually requires a more contextual approach. As we have seen, even in the context of the Crown’s Stinchcombe obligation of disclosure, there exists no presumption that all expectations of privacy are lost just because a record has found its way into the prosecuting Crown’s file.
39 The amicus curiae submits, and I agree, that determining the existence of a reasonable expectation of privacy requires a contextual assessment having regard to numerous factors, including but not limited to: how the record was created; who created the record; the purpose of the record; the context of the case in which the record would be used; who holds the privacy interest; how the record was obtained by the Crown or police; the presence or absence of waiver; any applicable legislation; and whether the privacy interest extends to all or part of the record. As one can readily appreciate from this non-exhaustive list, determining whether there is any residual expectation of privacy in a document may be a complex and time-consuming exercise that has the potential to significantly delay and detract from the actual proceeding before the court - the trial of the accused. For that reason, it is my view that in most cases, a more useful starting point for courts in balancing competing interests at the second stage of an O’Connor application will be to assess the true relevancy of the targeted record in the case against the accused. This approach allows the court to remain focussed on the trial of the accused and, given the competing interests at stake, the relevancy assessment will usually be largely determinative of the production issue.
THE APPLICANTS:
[86] Both Applicants are asking for production of “all relevant information relating to the credibility of Cst. A.,” as first party disclosure.
[87] They argue that given the nature of this prosecution, Cst. A.’s credibility will be a live issue in the trial.
[88] It will be so because this is a case where an accomplice received material benefits and immunity in return for joining the case against Messrs Melvin and Hudder.
[89] Cst. A. was Mr. C.’s handler and participated in the investigative process at the direction of Cst. A., for example, wearing a body pack when speaking to these accused.
[90] The Applicants argue that the police department adopted a policy that the Form 12 was a sufficient response to the dictates of McNeil and that such amounted to nothing more than lip service.
[91] The Defence raise concerns about the HRPS ability or willingness to comply with McNeil.
[92] The Defence also argues that the prosecuting Crown abdicated their responsibility in not reviewing Deputy Chief McNeil’s file for relevance. In other words that they just accepted the police departments view as to relevancy and that we are here today because of that abdication.
[93] I agree with that analysis.
[94] The McNeil case, and related jurisprudence, is in its infancy and there will be many cases argued and decided before this expansion of first party disclosure will be settled.
[95] This is no different from the years that followed the Stinchcombe decision.
[96] I am satisfied that Cst. A.’s credibility will be a live issue at trial.
[97] I am satisfied that the Form 12 is clearly relevant to that issue.
[98] I am also satisfied that there is a reasonable possibility that additional information in the targeted file may assist these two accused in their right to make full answer and defence.
[99] I am also satisfied that Cst. A.’s records that do not meet this “reasonable possibility” test can be protected without compromising the ability to make full answer and defence.
[100] Yet I recognize that McNeil acknowledges that some residual privacy concerns will have to give way to the accused rights.
[101] I recognize that the balance between these two interests should occur in a way that is very sensitive to the accused ability to respond to the charges.
[102] In R. v Eggar (1995) 82 CCC (3d) 193 (S.C.C.) the Court stated:
“One measure of the relevance of information in the Crown’s hands is its usefulness to the defence. If it is of some use, it is relevant and should be disclosed.”
[103] First party disclosure must be exercised in this spirit. Closer calls should fall on the side of disclosure.
[104] Obviously the Applicant’s cannot identify the contents of Cst. A.’s file. There is no possibility to create a list or menu of what further is to be produced pursuant to Stinchcombe.
[105] The following words from the Ferguson Report at page 16 will assist in first party disclosure:
There are a wide variety of acts that can be described as misconduct. Not every act or allegation of misconduct needs to be provided to the Crown for the purpose of Stinchcombe analysis. Unit level discipline imposed for being late for work, for example, is clearly irrelevant. Similarly, matters that are under active investigation should not be automatically provided to the Crown.
[106] The following is this Courts ruling on this application:
1. I direct that the Public Prosecution Service write to Deputy Chief McNeil requesting any records from Cst. A.’s file that relate to his credibility and that could possibly impact on the accused’s ability to make full answer and defence.
2. I direct that the Public Prosecution Service review that file to determine what should be released to the accused applying conventional Stinchcombe principles.
3. In the event that the Crown decides to hold back certain records, which is to be expected, I direct that the Public Prosecution Services advise the accused as to what is being retained and the reason for that decision. (As a side note, I would not expect a list with great particularity but rather a generic description of the type of documents being withheld.)
4. Materials released by the police should relate to “serious misconduct”. Whether the subject discipline/conduct is resolved formally or informally is not relevant to its disclosure. The focus most remain on its use by the accused.
5. Records considered “serious misconduct” will already include the five items set out by Justice Ferguson in his report at page 17. Records that are relevant will not be limited to these five items.
[107] In the event that the defence feels less than satisfied, O’Connor is always available.
[108] I mentioned to counsel whether I have an O’Connor application before me. I take the position that I do. Any party entitled to notice are already involved in this application. The requirement for notice and an affidavit have been met in this application.
[109] It is efficient to comment on and consider an O’Connor application now rather than later. It is my expectation that the first party disclosure that will flow from this application will remove the necessity to proceed to O’Connor.
[110] In some ways an O’Connor application is a default motion, in the sense that is most easily defined by looking at what is not covered by the other disclosure or production schemes.
[111] An O’Connor procedure should be adopted when:
1. Charges are not sexual.
2. The records are in the hands of a third party.
3. An individual has a reasonable expectation of privacy in the records.
[112] The onus is with the requesting accused.
[113] The first thing that an accused must establish is whether the records sought should be produced to the trial judge.
[114] The second stage involves examination of the records and the balancing of the competing interests to determine if the records should be disclosed to the Defendant.
[115] In the initial portion of the application, the Defendant must demonstrate a reasonable possibility that the records contain information that is relevant to the testimonial competence of a witness or “the issues in the case” such as the unfolding of events, the credibility of witnesses or the reliability of other witnesses.”
[116] O’Connor has described the burden as “significant” but should not be viewed as onerous.
[117] O’Connor also stated that the standard of “likely relevance” gives recognition to the obvious disadvantage an accused person experiences in attempting to establish the relevance of records they have not seen.
[118] Justice Carol Brewer in her 2008 paper for the National Criminal Law Program entitled “Third Party Records Application: The Common Law” discusses this first step as follows:
A bare assertion that a record is likely relevant to an issue in the case is not adequate. The defendant must be able to justify that claim by pointing to case specific evidence or information suggesting that the records contain information that is not already available to the defence or which has potential impeachment value. Support for the defence position may be founded in the affidavit filed on the motion, material received through disclosure, the testimony of witnesses at the preliminary inquiry or evidence called in the application itself.
The accused is not entitled to rely on speculative myths, stereotypes and generalized assumptions in seeking production. For example, the mere fact that a complainant has consulted with a psychiatrist is not, in itself, a matter that relates to her credibility. However, where the defendant can point to evidence suggesting a connection between evidence given by the complainant at the preliminary inquiry and sessions with her therapist, that would provide a potential to impeach credibility sufficient to satisfy the “likely relevant” standard.
In an O’Connor application, unlike an application for production under the Criminal Code, the judge does not consider whether production of the records “is necessary in the interests of justice” in the first stage of the hearing. Instead, consideration of all of the various rights and interests that might be affected by disclosure is addressed at the second stage.
If the defendant fails to establish that the records are likely relevant, the application will be dismissed. Where the onus is met, the judge will direct that the records be provided to the court.
[119] I am satisfied that what I have heard in this application support a conclusion they are “likely relevant.”
[120] The most compelling factor supporting this conclusion is the role Cst. A. has performed in the investigation and prosecution of this case, i.e. a handler of J.C.
[121] So much depends on this “unsavoury witness.”
[122] The second factor supporting this conclusion is the information contained in the Form 12 and summary.
[123] While it may not be the most serious sin in the world, it speaks volumes about Cst. A. and his overall character.
[124] In the event that the first party disclosure leaves the accused less than satisfied, they are free to request this court to review the remaining records, the second step in O’Connor. After doing so, I would release an addendum to this ruling.
J.