R. v. Sitaram, 2011 ONCJ 199

Citation: R. v. Sitaram, 2011 ONCJ 199 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. S. Heeney ) for the Crown ) — AND — ) ) ANIL SITARAM ) ) Mr. I. Aisen ) for the Offender ) ) Heard: September 24, October 19,December 14, 2010, January 4, 2011 ) ) NAKATSURU J.: [1] At the hearing pursuant to s. 742.6 of the Criminal Code into an alleged breach of a conditional sentence order, theoffender moved to have the Crown disclose items purportedly in his possession and control. I dismissed the motion orally but reservedthe right to provide written reasons. These are the written reasons. A.

OVERVIEW AND FACTS [2] Originally, on March 5, 2010, Mr. Sitaram was sentenced on one count of attempted theft under and two counts ofrobbery. A number of other robberies were admitted and treated as an aggravating factor on sentence. Mr. Sitaram received an 18 monthconditional sentence followed by a period of probation for two years. [3] On August 17, 2010, Mr. Sitaram was alleged to have breached the house arrest provision of his conditional sentenceorder. He denied having breached this condition and claimed that he was at home as required.

The offender argued that the electronicmonitoring system created a false absence alert. At the breach hearing, the Crown called evidence relating to the electronic monitoringsystem that Mr. Sitaram was subject to. [4] To enforce the house arrest condition attached to his conditional sentence order, Mr. Sitaram was made subject toelectronic supervision. As a result, he was compelled to wear an electronic ankle bracelet at all times. The Electronic SupervisionProgram is operated by the Ministry of Community Safety and Correctional Services (henceforth “the Ministry”).

The Ministry hasentered into an agreement with Serco Geografix Ltd., a company based out of the United Kingdom, for the provision of the technologiesand supporting monitoring software for electronic supervision. This system is used by the Ministry staff to more closely monitorcompliance with house arrest or curfew conditions imposed upon supervised offenders serving their sentence in the community.

AMinistry operated monitoring center, the Ontario Monitoring Center, was established for which all services related to the program arecoordinated including the investigation and timely responses to alerts generated by the system. The evidence regarding the nature of theelectronic monitoring presented at this breach hearing is more fully set out in my decision on disposition; now reported as R. v. Sitaram,[2011] O.J. No. 201 (C.J.). [5] During the course of the hearing into the breach, the Crown called Mr.

Graham Cottrell, a representative of SercoGeografix Ltd. from the United Kingdom, to testify about the reliability of their electronic supervision system. In addition, the Crowncalled a monitoring officer from the Ontario Monitoring Center to testify about some of the specific absence alerts generated by Mr.Sitaram. [6] Mr. Sitaram sought disclosure of information from the Crown relating to reliability of the electronic monitoringsystem. This information is the subject of the disclosure motion. B. THE ISSUES AND THE POSITION OF THE PARTIES [7] Mr. Sitaram has made a number of disclosure requests of the Crown.

Counsel for Mr. Sitaram submits that the standardfor Crown disclosure as articulated in R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326 should be applied at a hearing intowhether an offender breached his conditional sentence order. He argues that the onus is on the Crown to demonstrate why his requestsare clearly irrelevant. [8] Commendably, the parties in this case have cooperated over the course of the breach hearing.

Without conceding hewas legally required to do so, the Crown has provided a great deal of supplementary materials beyond the conditional sentencesupervisor’s report and included signed statements as required under s. 742.6(5) of the Criminal Code. Furthermore, at the hearing,

counsel for Mr. Sitaram has considerably narrowed the list of disclosure he is seeking. [9] Nevertheless, counsel for Mr. Sitaram argues that he is entitled to more.

This includes: any manual regarding theoperation, servicing, or reliability of the electronic monitoring hardware designed by Serco Geografix Ltd.; the contract between theMinistry and Serco Geografix Ltd. for the provision of the electronic monitoring system; any written materials from Serco GeografixLtd. provided in advance to the government setting out the specifics of the system so that the Ministry could do due diligence beforeawarding the contract; all written materials used in the training of equipment installers and service people; the contract between theMinistry and the Salvation Army for the provision of installation services and the reason why the latter was awarded this contract;information regarding any monitoring units that have been replaced in Ontario and complaints made by any other detainee about allegedfalse alerts generated by the system. [10] In response, the Crown submits that the Stinchcombe principles do not apply at a conditional sentence breach hearing.

Insupport, the Crown drew my attention to the case of R. v. Dragusica, [2010] B.C.J. No. 1336 (S.C.) where the same issue arose beforeSchultes J. The learned justice held that the regime set out in s. 742.6 is a comprehensive one with regard to the type of evidencerequired to be produced at a hearing and the manner disclosure is made. In Schultes J.’s opinion, all that is mandated to be disclosed bythe Crown are the conditional sentence supervisor’s report and any included signed witness statement(

s) to support an allegation of abreach of condition under s. 742.6(4). In his view, to require more of the Crown would undermine Parliament’s intent to create anefficient process in determining an allegation of breach. With respect to fairness to the offender, Schultes J. held that the effective proxyfor Stinchcombe-type disclosure is the opportunity to seek leave to cross-examine the supervisor or any author of a witness statement. Inthe course of such cross-examination, the judge could require disclosure of any relevant material that was used in the preparation of thereport or statement.

This would be determined on the facts of each individual case. [11] Alternatively, the Crown submits that he has in fact made all necessary disclosure. In addition to the supervisor’s reportand the signed statements, the Crown has made further disclosure to Mr. Sitaram. This includes Mr. Sitaram’s complete file with theOntario Monitoring Center including notes, the software manual provided by Serco Geografix Ltd. to the Ministry, statements regardingthe installation of the monitoring device in Mr.

Sitaram’s residence, and a document relating to installation training. [12] The Crown further argues that some of the records requested by the defence are not in the possession or control of theCrown. This includes the material sought of Mr. Cottrell regarding the hardware design and operation. According to the evidence, Mr.Cottrell is a private citizen who works for a company located in the United Kingdom. He does not have with him any of the informationor documentation regarding the monitoring system sought by Mr. Sitaram.

Moreover, it is the Crown’s position that the Ministry is alsoa third party with respect to the other disclosure requests made by the offender. Counsel for the Ministry was in attendance at thehearing and has been involved in some of the disclosure discussions. The Crown emphasizes that Mr. Sitaram has not brought any thirdparty records application of anyone. [13] Finally, the Crown submits that the other disclosure requests made by Mr. Sitaram do not fall within any disclosureobligations on the Crown at a conditional sentence breach hearing.

The disclosure asked for is simply not sufficiently relevant to theissues raised at the hearing. C. THE CROWN DISCLOSURE OBLIGATION ON A CONDITIONAL SENTENCE BREACH HEARING [14]

Section 742.6 of the Criminal Code governs the conduct of a conditional sentence breach hearing. The defence arguesthat the well-known Stinchcombe standard should apply to the Crown obligation to make disclosure to the offender on such a breachhearing. It is not disputed that a Crown duty to disclose exists at a breach hearing. Rather, the issue is the content and threshold of thatduty. The Stinchcombe standard of relevance is a low threshold.

Relevance in that context means that there is a reasonable possibility ofthe requested disclosure being useful to the accused in making full answer and defence in meeting the case for the Crown, advancing adefence, or otherwise in making a decision which may affect the conduct of the defence. See R. v. Egger, (SCC), [1993]2 S.C.R. 451 at pp. 466-67. [15] In my opinion, the Stinchcombe principles do not apply to the Crown duty to make disclosure at a conditional sentencebreach hearing. Significantly, at this hearing, the offender has been sentenced and no longer enjoys the presumption of innocence.

Theoffender is not making full answer and defence to a criminal charge(

s) laid by the police. The s. 7 Charter right to disclosure andprocedural fairness must take into account the context of the proceedings as found in s. 742.6. [16] This was the substance of the holding in the case of May v. Ferndale Institution, 2005 SCC 82 , [2005] 3 S.C.R.809. In that case, the appellant inmates who were serving life sentences challenged a decision by the Correctional Service of Canada toinvoluntarily transfer them from a minimum to a medium security institution. This decision was based upon a computer application toassist in the classification review process that led to the transfers.

The computer application provided a security rating based on dataentered with respect to various factors related to the assessment of risk. The appellants requested the scoring matrix for the computerapplication. The majority decision of the Supreme Court of Canada rejected the argument that the disclosure obligations set out inStinchcombe should be applied, stating: It is important to bear in mind that the Stinchcombe principles were enunciated in the particular context of criminal proceedings wherethe innocence of the accused was at stake.

Given the severity of the potential consequences the appropriate level of disclosure was quitehigh. In these cases, the impugned decisions are purely administrative. These cases do not involve a criminal trial and innocence is not atstake. The Stinchcombe principles do not apply in the administrative context. [at para. 91] [17] The conditional sentence breach hearing has been described as analogous to a parole board revocation hearing. In R. v.Casey (2000), (ON CA), 141 C.C.C. (3d) 506 (Ont.

C.A.) at paras. 30-40, the appellant argued that s. 742.6(9)requiring the Crown to prove a breach of a conditional sentence order only on a balance of probabilities rather than proof beyond areasonable doubt, was a violation of s. 7 of the Charter. The Court held that the principles of fundamental justice were not infringed by

such a lesser standard of proof. Osborne J.A. speaking for the court commented: In my opinion, the breach provisions of s. 742.6 are analogous to Parole Board administrative decisions in parole revocationproceedings following an offender's alleged misconduct while in the community on parole.

I attach no significance to the fact that theconditional sentence offender has been deemed fit to serve his/her sentence in the community, while the offender in a parole revocationproceeding has not. [at para. 38] [18] Finally, this conclusion is supported by the simple and expeditious proceeding envisioned by Parliament in enacting thissection. A breach hearing is directed to commence within 30 days or as soon thereafter as is practicable. A breach can be proven withoutviva voce evidence but on a supervisor’s report and signed statements.

Leave is required to cross-examine the supervisor or a witness onhis or her included statement. An overly onerous burden upon the Crown to make disclosure at a breach hearing would not achieve theproper balance between efficiency and fairness. See R. v. McIvor, 2008 SCC 11 , [2008] 1 S.C.R. 285 at para. 27. [19] Having said that, I cannot agree with Schultes J.’s decision in R. v. Dragusica, supra. It is my opinion that s. 742.6 doesnot set out a comprehensive scheme for the conduct of a conditional sentence breach hearing.

With the greatest of respect, Schultes J.’sinterpretation of some comments made by the Supreme Court of Canada in McIvor, supra, is unwarranted. It was Schultes J.’s view thatthe Supreme Court of Canada’s emphasis on the legislative intent to streamline the conditional sentence breach process in limiting thecross-examination of witnesses, logically lead to the conclusion that the statutory regime was comprehensive. However, asacknowledged in McIvor, supra, at para. 32, s. 742.6(4) is an enabling provision.

It permits the Crown to prove a breach by adducing indocumentary form the evidence it would otherwise have to present by viva voce evidence. This does not prevent the Crown fromproceeding with viva voce evidence or preclude the offender from calling his or her own evidence. The hearing may take a form differentfrom the simple process set out in s. 742.6(4) when appropriate, provided that the hearing remains fair and efficient. See R. v. Palmer(2003), (ON SC), 204 C.C.C. (3d) 256 (Ont. S.C.J.); R. v. Le, (MB PC), [2005] M.J. No. 495(Man. Prov. Ct.); R. v. Balaj, 2010 BCSC 362 , [2010] B.C.J. No. 473 (S.C.); cf.

R. v. Barnes, (ON SC),[2009] O.J. No. 2351 (S.C.J.). [20] Moreover, Schultes J.’s suggestion of the proxy for Stinchcombe-type disclosure, leave to cross-examine the supervisor ora witness, is not without its difficulties. This will not always be fair to the offender. Without prior disclosure, the offender may not be ina position to make informed decisions about significant matters relevant to the breach hearing. The offender may not have theopportunity to conduct his or her own investigations prior to the breach hearing without the information.

In addition, without priordisclosure, the offender may not even be able to convince the judge that leave should be given to cross-examine the supervisor or awitness. For instance, a witness may have made contemporaneous notes that are inconsistent with the signed statement included with thesupervisor’s report. Without prior disclosure of those notes, the offender may not be able to demonstrate that cross-examination wouldserve a useful purpose. Given the gate-keeping function of the leave requirement, the offender may not get leave to cross-examine.

Inthat case, Schultes J.’s suggestion that such notes can be uncovered and disclosed during cross-examination rather than by prior Crowndisclosure, is an ineffectual proxy for the offender. Finally, the process recommended by Schultes J. is unlikely to be simple andexpeditious. If disclosure is sought as witnesses are being cross-examined, there will be repeated adjournments as disclosure is obtainedand reviewed.

As a consequence, the conditional sentence breach hearing will be punctuated by interruptions and will certainly becomeunduly prolonged. [21] In my opinion, the nature and extent of the Crown disclosure obligation at a conditional sentence breach hearing is onethat should ensure fairness to the offender and should be shaped by the specific issues raised at the hearing. It is not as extensive oronerous as that set out in Stinchcombe. On the other hand, it may require more than simply disclosure of the conditional sentencesupervisor’s report and any included signed witness statements.

The judge at the hearing has the authority to review the disclosure thathas been made and order further disclosure if it is necessary for the offender to have a fair hearing. [22] I have come to this conclusion for a number of reasons. First of all, even in the administrative law context, although theStinchcombe standard does not apply, statutory obligations and procedural fairness may impose a burden to disclose information that willbe relied upon by the decision maker. See Maynard v.

Ferndale Institution, supra, at paras. 90-91. [23] Secondly, the contextual approach to assessing the content of natural justice and procedural fairness where a person’s s. 7Charter right is engaged, demands broader Crown disclosure.

The factors to consider in the contextual analysis include: (1) the nature ofthe decision made and the procedures followed in making it, that is, the closeness of the administrative process to the judicial process;(2) the role of the particular decision within the statutory scheme; (3) the importance of the decision to the individual affected; (4) thelegitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed;and (5) the choice of procedure made by the agency. See Suresh v.

Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 115; Ruby v. Canada (Solicitor General), 2002 SCC 75 , [2002] 4 S.C.R. 3 at paras. 39-40. [24] In Charkaoui v. Canada (Minister of Citizenship and Immigration), 2008 SCC 38 , [2008] 2 S.C.R. 326 Lebeland Fish JJ. rejected the contention that there was no duty on the part of the Canadian Security Intelligence Service to discloseoperational interview notes to a person who was subject to removal under the security certificate process of the Immigration and RefugeeProtection Act.

The Supreme Court of Canada refused to accept the characterization of the process as merely administrative law and heldthat a contextual approach under s. 7 of the Charter demanded greater disclosure than the summaries of the information provided: In our view, the issuance of a certificate and the consequences thereof, such as detention, demand great respect for the namedperson’s right to procedural fairness. In this context, procedural fairness includes a procedure for verifying the evidence adduced againsthim or her.

It also includes the disclosure of the evidence to the named person, in a manner and within limits that are consistent withlegitimate public safety interests. [at para. 56] See also Canada (Justice) v. Khadr, 2008 SCC 28 , [2008] 2 S.C.R. 125. [25] Applying these principles to the conditional sentence breach hearing context, two factors stand out: (1) the nature of thedecision and the procedures followed in making it are judicial and (2) the liberty and the security of the person interests of the offender

are significant. With respect to the former factor, the decision is not an administrative decision. The hearing takes place in court withthe onus on the Crown to prove the breach based upon properly admissible evidence. The proceeding is a criminal one. The decisionand process followed are judicial. With respect to the latter factor, although a conditional sentence is a sentence of custody, theindividual is permitted to serve it in the community. Termination of the order will greatly affect the liberty and the security of the personinterests of the offender.

While it is true that a conditional sentence remains a custodial order even while it is being served in thecommunity, from the perspective of the offender, its termination and subsequent incarceration are serious consequences. Thus, acontextual analysis supports a greater as opposed to a lesser Crown duty to disclose. In my view, the balancing of fairness and efficiencyleads to a duty on the Crown to disclose that is less than Stinchcombe but greater than simply the statutory requirements in s. 742.6. [26] The issue then is exactly what needs to be disclosed at a conditional sentence breach hearing.

It is noteworthy that even inthe context of Crown disclosure at a criminal trial, the authorities have held that the fair and efficient functioning of the criminal justicesystem requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. See R. v. Dixon, (SCC), [1998] 1 S.C.R. 244 at para. 37. This requirement is no different at a conditional sentence breach hearing and, in myopinion, has added significance.

Given that the regime is designed to be simple and expeditious, the Crown should be entitled to proceedon the basis that the disclosure process can be completed efficiently and quickly given the time limits set out in the Criminal Code. Oncethe conditional sentence supervisor’s report and statements have been served, unless the offender requests more, prima facie, disclosureshould be assumed complete. There is no unfairness in such an initial procedure. In many cases, this basic disclosure will not impair thefairness of the hearing. For instance, as noted in R. v.

McIvor, supra, at para. 25, if the alleged breach consisted of a failure to report tothe conditional sentence supervisor, little else than the supervisor’s report may need to be disclosed to ensure a fair hearing. [27] However, if the offender requests it, any material or information in the possession or control of the Crown that underlie orsupport the report or statements should be provided. This is fundamentally no different than the “fruits of an investigation” that isnormally disclosed in a criminal trial.

This material too may be necessary at a breach hearing when circumstances warrant it in order torespect the offender’s right to procedural fairness. The offender should have access to this material in order to seek leave to cross-examine or to challenge the allegation of breach. For example, if the allegation involves a breach of a house arrest or curfew condition,police officers’ notes of when and where they may have found the offender should be disclosed.

This should not cause muchinconvenience or delay since the officers would have had to provide signed statements in any event to prove the breach by way of s.742.6(5). [28] The extent of any further disclosure will depend upon the issues raised at the breach hearing. Again, the resolution of anyother disclosure requests should be focused on the fairness of the hearing without sacrificing efficiency. D. APPLICATION TO THE CASE AT BAR [29] In dealing with the specific disclosure requests made by Mr. Sitaram, the materials sought of Mr. Cottrell are third partyrecords.

They are not in the possession and control of the Crown. Mr. Cottrell is a witness called by the Crown but he is a private citizenworking for a foreign corporation who owes no duty to the public and is not in any way under the direction of the Crown. In the absenceof a third party records application, no order will go requiring Mr. Cottrell to produce any records. See R. v.

McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66. [30] While it could be argued that the other materials sought of the Ministry are also third party records, I find even assumingthey are in the possession and control of the Crown, they do not have to be disclosed. They are not required for the offender to have afair hearing. The issue at the hearing is primarily the reliability of the electronic monitoring system. In my view, given the state ofdisclosure, Mr.

Sitaram has the ability to challenge it. [31] I agree that the additional disclosure requested may have some marginal relevance to that ability to challenge thereliability of the system. However, the information requested is only remotely relevant to this issue. While the materials sought maypotentially lead to lines of inquiry and avenues of cross-examination useful to the offender, the non-disclosure of this material does notimpair the fairness of his hearing.

The offender has significant if not all of the case-specific materials relating to the installation andoperation of the unit in his home and the alerts generated during the period of time he was under electronic supervision. The material heseeks goes to the question of the over-all reliability of the system. While this may be of some relevance to the offender, the Crown is notrequired to disclose the information to further advance this challenge.

To do so would move this breach hearing in the direction of awide-ranging inquiry into the system itself and the wisdom of the government in entering the arrangement it did with Serco GeografixLtd. What is more, Crown disclosure obligations do not encompass a duty to facilitate the general education of the offender about theoperation of the electronic monitoring system or the history of its operation in this province even though this may allow counsel to bettercross-examine. To permit this would defeat the intention behind the simple and expeditious process found in s. 742.6.

In looking at thedisclosure already made by the Crown which includes the conditional sentence supervisor’s report, the signed statements, all the recordspertinent to the “fruits of the investigation”, and some additional information regarding the installation and operation of the system, Ifind that Mr. Sitaram’s ability to have a fair hearing is not impaired without this additional disclosure. [32] As a result, the motion for further disclosure is dismissed. Released: April 13, 2011 Signed: