R. v. John, 2011 ONCJ 607

Citation: R. v. John, 2011 ONCJ 607 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PETER JOHN Before Justice Leslie Chapin Heard November 16, 2011 Written Reasons delivered November 23, 2011 Ron Jourard................................................................................................................................... for the Applicant Peter John Jinan Kubursi .............................................................................................. for the Respondent, Ontario Provincial Police RULING ON THIRD PARTY RECORDS APPLICATION CHAPIN, J. 1. Mr.

John was charged on November 20, 2010 with failing to comply with a breath demand made to him at the roadside byan Ontario Provincial Police Officer. The Ontario Provincial Police had started an in-car camera pilot in 2004 which was discontinued.The police car operated by the arresting officer in this case was not equipped with an in car camera. Mr. Jourard, on behalf of his client,has brought an application for disclosure of “all Ontario Provincial Police records including memoranda, emails, and othercorrespondence relating to the decision not to continue the in-car camera program or pilot project”. 2. Mr.

Jourard claims that if there had been an in-car camera in the police vehicle that pulled his car over on November 20,2010 the video would likely be relevant in that it may well have assisted him in providing evidence that there was no basis for the initialtraffic stop. He further submits that the in-car camera would be likely relevant in that it would have captured the breath testing andwould have been very helpful regarding the issue of whether or not the Applicant intentionally failed to provide a sample. Mr.

Jourardsubmits that this is particularly important to consider when the evidence against him comes from one crown witness. Finally, Mr.Jourard submits that he is not required to accept the statement of the crown that he was satisfied that the decision to stop the in-car videoprocedure was not intended to deprive Mr. John or any other accused person of evidence. He says that the documents are likely relevantin that they will shed light on the reason for the cessation of the program. 3. In support of his position Mr. Jourard referred to the following cases; R. v.

Stinchcombe (1991), (SCC), 68C.C.C. (3d) 1 (S.C.C.), R. v. T. (L.A.) (1993), (ON CA), 84 C.C.C. (3d) 90 (O.C.A), R. v. McNeil (2009), 238 C.C.C.(3d) 35 (S.C.C.), R. v. Kutynec (1992), (ON CA), 70 C.C.C. (3d) 289 (O.C.A.), R. v. Chaplin (1995), (SCC), 96 C.C.C. (3d) 225 (S.C.C.), R. v. Pellegrini [2007] O.J. No. 337 (O.C.J.), R. v. Nelson [2009] O.J. No. 3209 (O.C.J.), R. v.Yamka [2011] O.J. No. 283 (S.C.J.), R. v. Piko [2000] O.J. No. 3605 (S.C.J.), R. v. Deokie [2001] O.J. No. 5616 (O.C.J.), R. v. Cutone[2011] O.J. No. 2645 (O.C.J.), R. v. Moss [2004] O.J. No. 3631 (O.C.J.) and R. v.

Flintoff (1998) 126 C.C.C. (3d) (O.C.A.). 4. Ms. Kurbursi, who represented the Ontario Provincial Police on the application [hereinafter referred to as the O.P.P.] takesthe position that the records sought by the Applicant are the administrative and operational records of the O.P.P. and that Mr. John hasnot met his burden in establishing that the records sought are likely relevant to an issue at trial. 5. Ms. Kurbursi further submits that counsel is essentially seeking to have documents disclosed which relate to a governmentdecision and that a criminal trial is not the forum for this kind of inquiry. Ms.

Kurbursi submitted that the decisions in Deokie supra andMoss supra are distinguishable as those cases involved issues argued at trial regarding whether or not there should be an adverseinference drawn because the of the policy of particular police divisions not to videotape certain procedures. 6. Ms. Kurbursi further states the Applicant has laid no foundation for the request and that it is far too speculative to say thatan operational decision not to put equipment in a car has breached the Applicant’s Charter rights. In support of her position she referredto the decision in R. v. O’Connor (SCC), [1995] S.C.J.

No. 98 (S.C.C.), R. v. McNeil 2009 SCC 3 , [2009] 1S.C.R. 66 par. 33, R. v. W.B. (ON CA), [2000] O.J. No. 2184 at pars. 75 - 78, R. v. Pangman 2000 MBQB 96, R. v.Girimonte, and R. v. Chaplin (SCC), [1995] 1 SCR 727.

Analysis The First Stage - Has the Applicant Established Likely Relevance 7. The procedure for third party records applications has been set out in the Supreme Court of Canada’s decision in R. v.O’Connor (SCC), [1995] S.C.J. No. 98 (S.C.C.). The onus is on the party seeking the records to satisfy the judge thatthe records are likely relevant. The test is higher than that for disclosure from the crown in the context of a criminal trial.

In discussingthe meaning of likely relevance the court said at par. 22 through 24 the following: 22 In the disclosure context, the meaning of "relevance" is expressed in terms of whether the information may be useful to the defence(see Egger, supra, at p. 467, and Chaplin, supra, at p. 740). In the context of production, the test of relevance should be higher: thepresiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or thecompetence of a witness to testify.

When we speak of relevance to "an issue at trial", we are referring not only to evidence that may beprobative to the material issues in the case (i.e. the unfolding of events) but also to evidence relating to the credibility of witnesses and tothe reliability of other evidence in the case. See R. v. R. L.) (1995), (ON CA), 39 C.R. (4th) 390 (Ont. C.A.), at p.398. 23 This higher threshold of relevance is appropriate because it reflects the context in which the information is being sought. Generallyspeaking, records in the hands of third parties find their way into court proceedings by one of two procedures.

First, under s. 698(1) ofthe Criminal Code, R.S.C., 1985, c. C-46, a party may apply for a subpoena requiring a person to attend where that person is likely togive material evidence in a proceedings. Pursuant to s. 700(1) of the Code, the subpoena is only available for those records in thecustodian's possession "relating to the subject-matter of the proceedings". The second method of obtaining production of documents is toapply for a search warrant pursuant to s. 487(1) of the Code. Under s. 487(1)(

b) a search warrant will be issued where a justice issatisfied that there is in a building, receptacle or place "anything that there are reasonable grounds to believe will afford evidence withrespect to the commission of an offence ...". Consequently, under either of these schemes the individual seeking access to third partyrecords must satisfy a neutral arbiter that the records are relevant to the proceedings in question.

We agree with L'Heureux-Dubé J. thatthe appropriate procedure to follow is via the subpoena duces tecum route. 24 While we agree that "likely relevance" is the appropriate threshold for the first stage of the two-step procedure, we wish toemphasize that, while this is a significant burden, it should not be interpreted as an onerous burden upon the accused. There are severalreasons for holding that the onus upon the accused should be a low one. First, at this stage of the inquiry, the only issue is whether theinformation is "likely" relevant.

We agree with L'Heureux-Dubé J. that considerations of privacy should not enter into the analysis at thisstage. We should also not be concerned with whether the evidence would be admissible, for example as a matter of policy, as that is adifferent query (Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190). As the House of Lords recognized in R. v. Preston,[1993] 4 All E.R. 638, at p. 664: ... the fact that an item of information cannot be put in evidence by a party does not mean that it is worthless.

Often, the trainof inquiry which leads to the discovery of evidence which is admissible at a trial may include an item which is notadmissible.... A relevance threshold, at this stage, is simply a requirement to prevent the defence from engaging in "speculative, fanciful, disruptive,unmeritorious, obstructive and time-consuming" requests for production. See Chaplin, supra, at p. 744. 8. In R. v.

McNeil 2009 SCC 3 , [2009] 1 S.C.R. 66 (S.C.C.) the court referred to the test in O’Connor supra anddiscussed the difference between likely relevance in the context of the Mills statutory regime and said at paragraph 3 30 It is important to note that the common law likely relevance threshold in O'Connor differs significantly from the statutory likelyrelevance threshold set by Parliament for the production of records containing personal information in sexual assault proceedings underthe Mills regime (see s. 278.3(4) of the Criminal Code).

As this Court explained at some length in Mills, a range of permissible regimescan meet constitutional standards. It was therefore open to Parliament to craft its own solution to address the particular concerns arisingfrom disclosure of third party records in sexual proceedings. In doing so, Parliament "sought to recognize the prevalence of sexualviolence against women and children and its disadvantageous impact on their rights, ... and to reconcile fairness to complainants with therights of the accused" (Mills, at para. 59).

The following differences between the two regimes are particularly noteworthy. 31 First, the likely relevance standard adopted by Parliament under the Mills regime is tailored to counter speculative myths,stereotypes and generalized assumptions about sexual assault victims and about the usefulness of private records in sexual assaultproceedings.

Such generalized views need not be countered at large in respect of all third party records that fall outside the Mills regime.The general common law threshold of likely relevance under O'Connor is intended rather to screen applications to ensure the proper useof state authority in compelling production of third party records and to establish the appropriateness of the application so as to avoidsquandering scarce judicial resources. 32 Second, while the Mills regime retains the two-stage framework set out in O'Connor, it differs significantly in that much of thebalancing of the competing interests is effected at the first stage in determining whether production should be made to the court forinspection.

This reflects Parliament's assumption that a reasonable expectation of privacy exists in the types of records targeted by thestatutory regime: see R. v. Clifford (2002), (ON CA), 163 C.C.C. (3d) 3 (Ont. C.A.), at paras. 48-49. An equivalentpresumption of privacy does not attach in respect of all third party records that fall outside the Mills regime. Hence, any balancing ofcompeting interests is reserved for the second stage of the O'Connor regime, when the documents can be inspected by the court to betterascertain the nature of the privacy interest, if any.

Because of these significant differences, it is important not to transposethe Mills regime into the O'Connor production hearing in respect of documents to which the statutory dispositions do not apply. 9. In this case I am not persuaded that Mr. Jourard has met his burden in showing that the material requested is likely relevantto an issue at this trial. There is absolutely no foundation that the material is likely to show the police did anything more than make anoperational decision to discontinue a pilot project regarding in-car cameras. This is not the forum to inquire into the reasons for thatdecision.

This is much more akin to what is commonly referred to as a “fishing expedition” to see if there is possibly some information

that may be of some assistance. 10. I agree with the respondent’s position that this case is distinguishable from the Moss supra and Deokie supra decisions.Those were cases in which there was an ability to videotape evidence and decisions were made by police officers not to do so that werecentral to the issues in the trial. In this case the police vehicle that pulled over Mr. John did not have an in-car video. The police are notrequired to create evidence for an accused and they are not obliged to videotape this process. See R. v. Wicksted, (ONCA), [1996] O.J.

No. 1576, 29 O.R. (3d) 144 affirmed, (SCC), [1997] S.C.J. No. 17., R. v. Piko supra and R. v. Khan[2010] O.J. No. 2855. 11. The application is dismissed.