R. v. Gebrekirstos, 2013 ONCJ 265

Citation: R. v. Gebrekirstos, 2013 ONCJ 265 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Ephrem Gebrekid Gebrekirstos Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision on Renewed Disclosure Motion Released May 10, 2013 Mr. Stephen J. Donoghue………………………………………………………..for the Crown Mr. Oliver. N. Abergel..………………………………………………………….for the Accused Paciocco J. [1] On 17 October 2012 I rendered a decision denying Mr.

Gebrekirstos’ application for production and disclosure of Ottawa PoliceOccurrence Reports relating to prior police contacts in the 90 days prior to the offence alleged against him involving the complainant.The existence of such reports has neither been confirmed nor denied, but the parties have proceeded for the purposes of this motion onthe assumption that they do. Any such reports, if they exist at all, do not relate to the accused, and none were reviewed by theinvestigating police authority, the Ottawa Police Service, or by the Crown in the investigation or preparation of this prosecution.

Theputative reports do not, therefore, fall within first party disclosure rules. Since this is a sexual offence prosecution, when I made myinitial order denying production for inspection I applied the “Mills regime” for third party records, found in

section 278.1-278.91 of theCriminal Code of Canada. Although I made incomplete comments about the relevance of those records, my decision focused on whetherproduction would be necessary in the interests of justice. I held that production for judicial inspection was not necessary in the interestsof justice. I judged the probative value of any such reports to be low, given that existing disclosure enabled Mr. Gebrekirstos to pursuethe tactics he relied upon to justify inspection.

Meanwhile, I judged the potential prejudice to privacy interest to be significant enough tooutweigh any probative value the records might have. The law protects the privacy of allegations of sexual victimization and I reasonedthat production of unknown occurrence reports could result in the inspection of such allegations. I also reasoned, consistent with thedecision in R. v. McNeil 2009 SCC 3 , [2009] S.C.J.

No. 3, that occurrence reports often contain personal information thatdeserves protection, and expressed my concern that providing ready access to police complaints could discourage complainants formcoming forward. Without a more persuasive foundation for why such records should be produced for inspection, I declined to do so. [2] On 26 March 2013 R. v. Quesnelle 2013 ONCA 180 , [2013] O.J. No. 1365 was released by the Ontario Court ofAppeal.

That decision holds that police occurrence reports, at least when they are “made by” the police agency “responsible for theinvestigation and prosecution of the offence,” are not caught by the Mills regime, as they are not “records” within the meaning of 278.1.The Ontario Court of Appeal said, at para. 43, that the disclosure of the occurrence reports is to be governed by the regime developed inR. v. Stinchcombe (SCC), [1991] 3 S.C.R. 326. That being so such records are to be produced based solely on their“likely relevance,” without any examination of competing privacy interests.

Relying on this recent clarification of the law, Mr. Abergel,counsel for Mr. Gebrekirstos, has “renewed” his disclosure application, asking that I reconsider my ruling applying the more generousStinchcombe regime. He notified the Court that his original decision to limit his request to occurrence reports arising in the 90 day “pre-offence” period, with its focus on prior complaints by the complainant, was made in light of the limits on the

section 278.1 regime. Nowthat Quesnelle has indicated that Stinchcombe applies, he is requesting all occurrence reports. [3] In the course of his submissions Mr. Abergel identified, artfully and persuasively, the importance of disclosure to trial fairness

and full answer and defence, and pointed out that the McNeil decision imposes an obligation on the Crown to seek out relevantinformation within the control of the investigating police force, when that information is brought to its attention. He urged that theCrown’s refusal to disclose information based on that request violates its obligation, effectively impeding his right to make full answerand defence on behalf of his client. [4] The Crown contends that I should reject the renewed application. Mr.

Donoghue for the Crown argues that I should not followQuesnelle, even though it is a recent decision of the Ontario Court of Appeal directly on point. Mr. Donoghue argues, pursuant to the“vertical” principles of stare decisis, that I am bound by R. v. McNeil, which he contends is inconsistent with Quesnelle and which wasnot cited in Quesnelle. In the alternative, he argues that Quesnelle is inconsistent with the Ontario Court of Appeal’s earlier decision in R.v. Thompson [2009] O.J. No. 1109 (C.A.), where the Ontario Court of Appeal endorsed the application of the R. v.

O’Connor disclosureregime to third party police occurrence reports. He urged that when the Ontario Court of Appeal overturns an earlier decision it ordinarilydoes so in a panel of five justices (R. v. Mahalingan (ON CA), [2006] O.J. No. 1619 para. 60 (Ont.C.A.), affirmed2008 SCC 63 , [2008] S.C.J. No. 64), yet only three justices sat on Quesnelle. He also noted that the Ontario Court of Appealhas identified principles that are to be considered before the Court will overrule one of its own decisions: David Polowin Real Estate Ltd.v The Dominion of Canada General Insurance Co. et al, (ON CA), [2005] O.J.

No. 2436 (Ont.C.A.). None of thoseprinciples were evaluated in Quesnelle and, indeed, Thompson was not even cited. He contends, therefore, that R. v. Thompson was notoverruled in Quesnelle and in the face of inconsistent decisions from a court of the same level principles of horizontal stare decisisrequire me to determine, in a principled manner, which decision to follow.

In sum he urges that if I conclude that Quesnelle isinconsistent with the binding reach of the Supreme Court of Canada decision in McNeil, I should not follow Quesnelle, and that even ifMcNeil does not control this case, I should follow Thompson rather than Quesnelle. [5] As for Mr. Abergel’s reliance on the Crown’s obligation described in McNeil to seek out information at the request of thedefence, the Crown was not attempting to shirk its responsibility by denying disclosure. It was, appropriately, seeking clarification of thelaw. I also understood Mr.

Donoghue’s position to be that there is no basis for concluding that any occurrence reports sought would berelevant, and relevance is the trigger for the Crown’s obligation to seek information, described in McNeil. [6] I will say at the outset that I do agree with the Crown’s evaluation of the fit of the Quesnelle decision with existing authority: (

a) First, Quesnelle does hold at para. 43 that police occurrence reports that are not the fruits of the investigation and thereby subject to“first party disclosure obligations,” are to be produced by the Crown, upon request from the defence, “in accordance with itsStinchcombe obligation.” Yet in R. v.

McNeil the Supreme Court of Canada held at para. 15 that “criminal investigation files in thepossession of the police that do not fall within the scope of this first party disclosure package is governed by the O’Connor regime forthird party production.” It is also true that the Ontario Court of Appeal’s own decision in Thompson, at para. 11, takes the same positionas McNeil by rejecting the application of the Stinchcombe disclosure regime. (

b) Second, the Quesnelle decision found, at para. 34, that there is no reasonable expectation of privacy in third party occurrence reportsfiled by complainants. Yet when dealing with criminal investigation files the Supreme Court of Canada in McNeil had said expressly, atpara. 12, “it is in error” to hold that “there can be expectation of privacy” and it rejected the propriety of determining reasonableexpectations of privacy of documents by category, “absent consideration of their particular contents and other relevant factors.” (

c) Third, the upshot of Quesnelle is that it is easier to secure disclosure of occurrence reports filed by sexual offence complainants (andpresumably witnesses in sexual offence cases) than it is to secure disclosure of occurrence reports filed by or about non-sexual offencecomplainants or witnesses, or police investigative files relating to third party suspects, notwithstanding that the decided trend over thepast 20 years has been to give sexual offence complainants heightened protection relative to other witnesses. It means that Parliament’sattempt to legislate to secure additional protection for complainants in

section 278.1 included the legislative intention to give sexualoffence complainants less protection than other witnesses or third parties caught up in criminal trial when it comes to prior policeinvestigations. It means that trial judges dealing with disputed disclosure applications in sexual offence cases such as this one arerequired to order disclosure of third party occurrence reports without any evaluation of the sensitivity of their contents. (

d) I have also noted, on my own, that the decision in Quesnelle adds to the complexity of the law. The Quesnelle decision means thatthere are now at least five disclosure regimes, the Stinchcombe regime for the fruits of the investigation; the Mills regime for third party“records” falling within the definition of

section 278.1 in sexual offence and related prosecutions; the O’Connor regime applicable tothird party records in non-sexual offence prosecutions; the McNeil regime extending the first party disclosure regime for policedisciplinary records and other records that the Crown is obliged to attempt to retrieve after being alerted to relevant information inpossession of other government departments; and the Quesnelle regime for police occurrence reports in sexual offence and relatedprosecutions. [7] Mr. Abergel pointed out during that there are policy reasons to support each of these outcomes, and that the statutory

interpretation exercise that supported the decision in Quesnelle was far more complex than simply declaring that occurrence reports are not “records” within the meaning of

section 278.1. [ 8 ] Of course, my responsibility as an Ontario Court of Justice trial judge is not to pass judgment on whether the implications identified by the Crown or noted by me, are good or bad, either as a matter of policy or legal reasoning. The immediate issue that I am to decide is whether I am bound to follow Quesnelle in this case.

My first responsibility in making this determination is to respect the principles of stare decisis, in the interests of certainty, uniformity and as a matter of due deference to, and respect for, the Ontario Court of Appeal. [ 9 ] I begin my examination of whether I am bound in this case by Quesnelle by observing that none of the material parts or any of the three decisions, McNeil, Thompson or Quesnelle , can be discounted as resting on obiter dictum . [ 10 ] In McNeil the outcome of the appeal was “moot” in the immediate case since McNeil abandoned his production and disclosure application after the officer who was the subject of the investigative records being sought was convicted.

The Supreme Court of Canada nonetheless chose to proceed with the appeal in order to provide guidance to future courts. The Court said expressly at para. 14 that the “case provides an appropriate context within which to reiterate the respective obligations of the police and the Crown to disclose the fruits of the investigation under R. v.

Stinchcombe …. and to consider the extent to which relevant police disciplinary reports and third party criminal investigation files should form part of the ‘first party’ disclosure package.” This decision was intended to bind in all material particulars. [ 11 ] I say the same about Thompson . I disagree with Mr. Abergel’s position that the express endorsement of the O’Connor regime for the disclosure of third party police occurrence reports in that case was obiter because the question of whether any other disclosure regime should apply was not raised.

What matters, in my view, is that the Court resolved the issue before it by applying the O’Connor regime. When a Court applies a particular legal standard to resolve the controversy before it, the outcome of that decision does not cease being the ratio of the case because no-one thought to argue that a different rule must apply. Consistency and formal equality – the right to have the same rules apply in like cases – are the grounding ideas behind the concept of precedent which the principles of stare decisis exist to protect.

Even had the Ontario Court of Appeal in Thompson not commented, at para. 11, that “The appellant properly proceeded with an O’Connor application as the way to seek production of police files” as the files “were not files relating to the appellant’s case, nor were they in the possession or control of the prosecuting Crown, and do not therefore fall to be dealt with pursuant to the principles set out in R. v. Stinchcombe ,” the case would still be binding authority on lower courts that they are to follow the same practice the Ontario Court of Appeal did in Thompson in similar cases.

It is a binding precedent that the O’Connor test for third party occurrence reports is to be used, at least where those records relate to a third party suspect and where those records are held by a non-investigating police force, [1] a point I will return to below. The material parts of Thompson cannot be avoided as obiter dictum . [ 12 ] The relevant portion of Quesnelle at issue here is also the ratio decidendum of the case.

The Court described the “critical question” it decided, at para. 2, as “whether, in the context of a prosecution of an alleged sexual assault, an occurrence report prepared by police on an unrelated incident involving a complainant is subject to the disclosure regime set out in s.278.2 of the Criminal Code .” The Court then directed the Crown to produce third party occurrence reports relating to the complainants to the two accused “in accordance with the Stinchcombe disclosure obligation.” [ 13 ] So how do I determine whether to apply Quesnelle , as requested by Mr. Abergel?

I agree with him that I must begin my deliberations in the knowledge that the Ontario Court of Appeal panel that decided Quesnelle was mindful of its obligations to respect Supreme Court of Canada authority and mindful of its own practices in following its own precedents. I also know it would be both legally and factually wrong for me to assume that because the Quesnelle panel failed to refer to either McNeil or Thompson it missed these authorities and reached a per incurium decision.

The implications of beginning from these two premises, each of which is necessary as matters of judicial comity and respect, is that the Quesnelle Court clearly did not see a conflict between its decision and other binding precedent. That being so I am obliged to seek to find a way to read these decisions together, if at all possible. In endeavouring to do so, I remind myself that it is not my role to function as an appeal judge or an academic might, by parsing passages, evaluating policy, and scrutinizing doctrine and principles to produce what I consider to be the best result.

My task is more mechanical and it is simply to ask, is there a way to read these decisions together? This is essentially what Justice A.R. Webster of the Superior Court of Justice did when faced with Quesnelle . In R. v. Vieux (9 April 2013), (Ontario Court of Justice), (unreported) the authority of Quesnelle was acknowledged but the case distinguished as inapplicable to property and non-sexual violence charges. A similar decision was reached by my colleague, Justice J.V. Loignon in R. v. Peacock (7 May 2013), (Ontario Court of Justice), (unreported), where R. v.

Quesnelle was interpreted as being confined to its essential facts. [ 14 ] Approaching the matter in this way it is, in my view, entirely possible to read McNeil, Thompson and Quesnelle without concluding that there is irreconcilable conflict.

[15] The immediate context of the decision in R. v. McNeil related to criminal investigation documents involving police officers. Thenarrowest contribution of the decision was to offer a more expansive definition of first party disclosure relating to official documentationabout police misconduct, than prior authority had offered.

McNeil then instructed, at para. 25, that “the production of criminalinvestigation files involving third parties … usually falls to be determined in the context of an O’Connor application.” That proclamationhas been taken to apply generally to third party records, subject, of course, to the statutory regime in sections 278.1 – 278.91. Absent anexception where the usual rule does not apply, the McNeil principles are therefore safe to use even where the subject is not a policeofficer, as in R. v. Thompson. McNeil did not, however, exhaustively circumscribe when that usual rule pertains.

The Ontario Court ofAppeal in Quesnelle was therefore left uninhibited by R. v. McNeil to determine whether to create a new exception to the usual practicein the case of occurrence reports prepared by the investigating police force on unrelated incidents involving a complainant in a sexualoffence prosecution. Nor was it bound by its own decision in R. v. Thompson to apply the usual rule in such cases.

Thompson dealt withoccurrence reports targeting a third party suspect where credibility is not likely to be a central issue, as opposed to a sexual offenceprosecution where credibility is apt to be the primary issue in the case, and Thompson appears to have involved an attempt to securedisclosure of occurrence reports from police services not involved in the investigation of the offence being prosecuted. Once theQuesnelle panel decided that, as a matter of statutory

interpretation,

section 278.1 did not apply, it was therefore free to make thedecision it did, uninhibited by McNeil and unrestricted by Thompson. [16] Although the Quesnelle Court did not give reasons for opting for the Stinchcombe regime over the O’Connor regime it ispossible that this decision was made in the spirit of McNeil, which recognized a duty on Crown’s to assist the fair trial process byretrieving relevant documentation in government hands, possessed by state agencies, that it becomes aware of, including by defencerequests for assistance (see McNeil, paras. 47-51).

Since the Quesnelle Court applied the Stinchcombe regime only to occurrence reportsrelating to complainants that are in the possession of the investigating police force, the authority of the Crown to impel the production ofsuch information without court order may explain the decision.[2] Quesnelle provides a more resource efficient way to ensure access torelevant information than an O’Connor application.

Whatever the explanation for the Court’s choice may be, unless and until it isoverruled, Quesnelle is binding on me. [17] It follows that I must reconsider the decision I arrived at in this case by applying the Mills regime, in light of the principlesdescribed in R. v. Quesnelle. Since the putative occurrence reports being sought in this case were not reviewed during the investigationor for Crown preparation, they are third party occurrence reports in the possession of the investigating police force.

In such cases,Quesnelle instructs that “[i]f … the defence seek copies of [such] other occurrence reports relating [to a sexual offence complainant],they must make a further request to the prosecuting Crown and the Crown is required to produce those records in accordance with itsStinchcombe disclosure obligation.” In this case, Mr. Gebrekirstos has requested all occurrence reports relating to the complainant in thepossession of the investigating police force.

As the Crown took the position in response that it was not bound to apply Stinchcombe, it issafe to say that the Stinchcombe exercise has not yet been undertaken. It would be premature for me to rule on what must be disclosedbefore the Crown has attempted to discharge its obligation.

I am therefore releasing this decision, and leaving it to the parties to applythe law I have described. [18] I will say for guidance that since this is not a case involving the “fruits of the investigation” the Crown must honour itsobligation identified in McNeil to secure information from the investigating police force that is “relevant” for the purpose of makingdisclosure: R. v. McNeil at para. 49. It is not required to retrieve irrelevant information. In discharging this obligation the Crown woulddo well to bear in mind two things. [19] The first is the relevance standard in R. v. Stinchcombe.

Information is relevant where there is a reasonable possibility it willassist in making full answer and defence, including on issues of credibility”: R. v. Chaplin (SCC), [1995] 1 S.C.R. 727at para. 30. “One measure of the relevance of information in the Crown’s hands is its usefulness to the defence,” not just as admissibleevidence, but in properly investigating its case and in making tactical decisions such as whether to call evidence: R. v. Eggar (SCC), [1993] 2 S.C.R. 451, at pp.466-467.

If the disclosure request and its purported relevance is nothing more than“speculative, fanciful, disruptive, unmeritorious, or obstructive” then the information is not relevant: R. v. Chaplin at para. 32. Thataside, relevance is not a high standard. An exceptional review of the meaning of the concept can be found in R. v. Taillifer [2003] O.J.No. 75. [20] The second thing to bear in mind is that the obligation under McNeil includes the requirement that the Crown review targetedinformation to determine whether this standard is, in fact, met.

This necessarily entails that the standard to impel inspection by theCrown is even lower than the actual relevance standard for disclosure. The Crown is obliged to secure production from an investigatingpolice force if the requested, targeted information is “potentially relevant” in the sense that the claim for relevance is not “unfounded”:R. v. McNeil 2009 SCC 3 , [2009] S.C.J. No. 3 at para. 49-50. Justice Sopinka spoke in R. v.

Chaplin, at para. 31, in a relatedcontext of a claim of relevance “having a basis” in the “nature of an evidentiary burden.” It follows that if the request has a reasonablebasis in logic and reality, the information should be sought and inspected. [21] In judging potential relevance the Crown will, of course, consider the nature of the requests made by the defence. Principlesidentified in R. v.

Chaplin (SCC), [1995] 1 S.C.R. 727 support the requirement that the defence must necessarilyidentify the material it seeks so as to enable the Crown to evaluate whether the informatio may realistically meet the Stinchcombe test. Aprudent request will go further and provide the foundational theory of relevance to assist the Crown. Naturally, a bolus demand for

“occurrence reports” is less likely to provide a basis that would require the Crown to seek and inspect occurrence reports than a targeted request that by its nature, or by accompanying explanation, makes the relevance theory plain. [ 22 ] If the relevance of what is requested “appears unfounded” on its face when these standards are applied, the Crown need not seek out the information.

If there is a foundation for potential relevance, however, the Crown must make honest and committed efforts to secure the information, including, if necessary, by reminding the investigating police force of its obligation to furnish relevant information to the Crown for disclosure purposes: R. v. McNeil , paras. 48-51 . [ 23 ] If the Crown, discharging its ethical obligations to respect the law and to act as a minister of justice with the “utmost of good faith” determines that no such records in fact exist, it should notify the defence.

If the defence does not accept that, the defence must apply to a court to compel disclosure, and bears the burden of establishing a foundation for its claim that the record does exist. A court cannot order produced or disclosed, what it cannot be satisfied exists: R. v Chaplin at paras. 30-32 . [ 24 ] If the records sought do exist, and the Crown has inspected them because a foundation for possible relevance has been provided, the Crown must disclose those records unless they prove on inspection to be clearly irrelevant, privileged, or otherwise protected by law such as the Mills disclosure regime.

If the Crown refuses disclosure that the defence feels entitled to, it must apply to a court to compel disclosure. Although the burden is on the Crown to justify non-disclosure, a court will require the defence to identify the records and to furnish enough information to reveal its relevance theory. [ 25 ] I would caution the parties that my decision in the original motion should not be taken as a ruling on the relevance of requested information.

The decision to deny production for inspection was based on the probative value of the information, and on broader considerations related to the interests of justice. [ 26 ] The trial date in this matter has been set for October 7 and 8 in Court 12 at 10:00. That distant date should not be put in jeopardy by this process. I would encourage the parties to act with dispatch. The defence should finalize its request for disclosure so the Crown can make a meaningful assessment of whether the occurrence reports need be secured. The Crown should then pursue its responsibilities accordingly.

If the defence is not content with the outcome, I am available to receive a disclosure application. Released May 10, 2013 ___________________________________ The Honourable Justice David M. Paciocco