) ) HER MAJESTY THE QUEEN Respondent - and- MARTIN WHITE Applicant v. SPECIAL INVESTIGATIONS UNIT AND, 2010 ONSC 6987

CITATION : R. v. White, 2010 ONSC 6987 COURT FILE NO.: 08-010938 DATE: 20101216 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent - and- MARTIN WHITE Applicant -and- SPECIAL INVESTIGATIONS UNIT AND NAMED POLICE OFFICERS AND CIVILIANS Third Parties ) ) ) ) ) ) ) ) )))) ))) ))) ) ) ) ) ) ) Ms. M. Armour and Mr. R. Shallow, for the Crown Mr. C. Morris, for the Applicant Mr. E. Bala and Ms. N. Laeeque, for the Third Party Special Investigations Unit Mr. A. McKay, for the Third Parties Named Police Officers ) ) HEARD: November 22, 2010 RULING ON THIRD PARTY RECORDS APPLICATION FUERST J.

Background [ 1 ] A high speed police chase took place on Highway 400 on the night of February 19, 2008. Martin White was a passenger in the car pursued by the police. As members of York Regional Police brought the car to a stop, Mr. White got out and fled across the highway into a field. Police officers followed and apprehended him. Some of those officers testified at the preliminary hearing that they struck him while apprehending him. [ 2 ] Mr. White was taken to a police station, booked, and put in a cell. About two hours later he was taken to hospital by ambulance, accompanied by police officers.

He had a broken cheekbone.

[ 3 ] Mr. White is charged with 15 counts of armed robbery, multiple counts of wearing a disguise while committing an indictable offence, forcible confinement, and assault. The charges relate to a series of robberies of convenience stores and gas station kiosks that occurred from January 10 to February 19, 2008. [ 4 ] At the conclusion of the trial, Mr. Morris, counsel for Mr. White, will apply for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms on the basis that police officers used excessive force in arresting Mr.

White and failed to get him prompt medical attention, in violation of his rights under ss. 7 and 12. The Nature of This Application for Production [ 5 ] The Special Investigations Unit (“SIU”) conducted an investigation into the circumstances surrounding Mr. White’s injury. The two subject officers each provided statements to the SIU. In addition, another fifteen witness officers provided statements to the SIU, as did two paramedics. [ 6 ] The witness officers were statutorily compelled to provide statements to the SIU.

The two subject officers were not, nor were the civilian paramedics. [ 7 ] The interviews were all audio-taped. [ 8 ] The SIU concluded that there were no reasonable grounds to charge either of the subject officers with a criminal offence. [ 9 ] Mr.

Morris seeks production of the audio-taped interviews, SIU investigator reports summarizing those interviews, and diagrams produced by officers during their interviews. [ 10 ] The SIU, all seventeen police officers, and the paramedics oppose the production request. [ 11 ] After hearing argument on the application, I concluded that the applicant had established that the records were likely relevant to issues at trial. I advised the parties that I intended to examine the materials to determine whether the salutary effects of a production order outweighed the deleterious effects.

After reviewing the materials, I ordered their production, and told counsel that my written reasons would follow. These are my reasons. The SIU Investigation [ 12 ] SIU investigators gave the witness officers, as well as the civilians, an assurance of confidentiality that the information they provided to the SIU would not be disclosed without their consent or a court order. The subject officers received no assurance of confidentiality.

However, the SIU’s practice is not to disclose statements provided by subject officers absent their consent or a court order. [ 13 ] Joseph Martino, a lawyer for the SIU, swore an affidavit filed by the SIU on this application. He asserts that the efficacy of the SIU’s investigative process depends on maintaining the confidence of witnesses, both police and civilians.

Witness officers are sometimes reluctant to cooperate with the SIU because of concern about being implicated in the incident and becoming a subject officer; because of concern about providing information that could be used against them in disciplinary proceedings; and because of police culture and peer pressure to avoid cooperation with the investigation of a fellow officer. The cooperation of police witnesses and civilians is facilitated by the confidentiality assurance. Ordering production of statements could impair the SIU’s ability to obtain such cooperation.

The Positions of the Parties [14] Mr. Morris submits that the materials he seeks are likely relevant to an issue at trial, because they deal with the same incidentthat will be the subject of the stay application, Mr. White’s arrest and injury. The SIU interviews occurred closer in time to the eventsthan did the officers’ testimony at the preliminary hearing. The interviewees’ privacy interest in the interviews is a diminished onebecause either they were told that the confidentiality assurance could be abrogated by court order, or as subject officers they did notreceive a confidentiality assurance.

Further, the subject matter of the interviews was not the interviewees’ psychological state as a resultof the occurrence, where privacy concerns would weigh more heavily. The SIU’s concern that officers will not cooperate in the futureunless confidentiality is maintained is not a proper consideration. In balancing the interviewees’ privacy interests with Mr. White’sinterest in making full answer and defence, the latter prevails. [15] On behalf of the police officers, Mr.

McKay submits that the application is based on mere speculation that the materials mightcontain information helpful to the defence, such as inconsistent statements. The applicant has failed to show that the materials havepotential to add information to that already possessed by the defence. The applicant has not established that the materials are likelyrelevant to an issue at trial. Further, when privacy interests are balanced with the applicant’s interest in making full answer and defence,the former prevails.

The SIU’s promise of confidentiality is important in order to ensure that officers and civilians provide as muchinformation to the SIU as possible. Absent confidentiality, officers and civilians may limit the amount of information they provide,which would not be in the public interest. The deleterious effects of production of materials that do not have probative valuesubstantially outweigh the salutary effects. [16] On behalf of the SIU, Ms. Laeeque takes a similar position.

She submits that the mere fact that a witness previously spoke aboutthe occurrence that is the subject matter of the trial is not enough to establish likely relevance. The applicant has not established that thematerials would have impeachment value, or add anything to the information already available to the defence. The confidentialityassurance given to interviewees by the SIU creates a reasonable expectation of privacy. That assurance is necessary for the SIU tosecure cooperation from police officers and those who work closely with them such as paramedics.

The importance to the intervieweesand to society of maintaining that confidentiality outweighs any benefit of production of the materials to the applicant. [17] On behalf of the Crown, Ms. Armour takes no position on the application. The Governing Jurisprudence [18] All parties agree that this application is governed by the two stage inquiry process established by the majority in R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411.

At the first stage, the applicant must establish that the records are likely relevant to anissue at trial, meaning not just the unfolding of events, but also the credibility of witnesses, and the reliability of evidence in the case. [19] Likely relevance is a significant, but not onerous burden on the applicant.

The majority in O’Connor described it at paragraph 24as a “low” onus, because it is simply a requirement to prevent speculative and unmeritorious requests for production, and because theapplicant is in the “Catch-22” position of having to make submissions about the use to which he or she might put records withoutprecisely knowing their contents.

It is important to bear in mind that, as the majority put it at paragraph 25, “the ultimate goal is thesearch for the truth rather than the suppression of potentially relevant evidence”. [20] According to the majority at paragraph 29, third party records may be relevant because they contain information concerning theunfolding of events underlying a criminal complaint, or that bears on a complainant’s credibility including testimonial factors such as thequality of his or her perception of events at the time of the offence and memory since.

The majority also recognized, at paragraph 26,that there is a possibility of materiality where there is a reasonably close temporal connection between the creation of the records and thedate of the incident, usually the alleged commission of an offence. [21] In R. v. Batte (2000), (ON CA), 49 O.R. (3d) 321 (Ont.

C.A.) that court held that the likely relevancethreshold is met only if there is some basis for concluding that, where the third party records contain statements made by a witness, thosestatements have some potential to provide the applicant with some added information not already available to him or her, or have somepotential impeachment value. [22] I do not agree with the submission made to me by counsel for the officers and the SIU that the holding in Batte applies to theapplication before me, for two reasons.

[23] First, that holding, found at paragraph 72 of the decision, was made in the context of a case where the records sought werecounselling records of complainants alleged to have been sexually assaulted by the accused. It was preceded by the words “whereconfidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to thecomplainant’s credibility” [emphasis added].

The holding cannot be divorced from its context. [24] The application before me, however, does not involve highly personal counselling or therapeutic records created, as Taylor J. putit in R. v. Scully, [2007] O.J. No. 2017 (O.C.J.), incidentally to the alleged incident. Nor is it a case in which the objective of the thirdparty was something other than the creation of an accurate record of an account of the incident itself. Rather, it is a case in which thevery purpose of the third party record-holder, the SIU, was to inquire into the subject that Mr. Morris intends to pursue, Mr.

White’sinjury at the hands of the officers and treatment afterward, and to do so by compiling accurate recordings of the accounts of thoseinvolved in the incident. [25] Second, Doherty J.A. on behalf of the court specifically said at paragraph 47 of Batte that the O’Connor procedures andprinciples had been “supplanted” by the 1997 amendment to the Criminal Code, which introduced a statutory regime for production incases of sexual assault and other specifically enumerated (and primarily sexual) offences. Further, he relied on the statutory scheme,along with the approach taken to it in R. v.

Mills, (SCC), [1999] 3 S.C.R. 668 to support his

interpretation of the “likelyrelevance” standard where it is contended that the records go to the credibility of the complainant. [26] The statutory scheme does not, however, apply to this case. There has been no legislative “supplanting” of the O’Connorprocedures and principles in the context of this application. As the Supreme Court of Canada expressed in R. v.

McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at paragraphs 30 through 33, the common law likely relevance threshold in O’Connor differs significantlyfrom the statutory likely relevance threshold applicable in sexual offence proceedings, and it is “important not to transpose the Millsregime into the O’Connor production hearing in respect of documents to which the statutory dispositions do not apply”.[1] At the firststage of the application, “the court cannot insist on a demonstration of the precise manner in which the targeted documents could be usedat trial.”[2] [27] Given the purpose of the SIU investigation, I find that the interviews of the officers and the paramedics contain informationconcerning the unfolding of events culminating in Mr.

White’s injury and his need for medical treatment. Additionally, the inventoryfiled on this application by the SIU indicates that the interviews of the police officers occurred in the period March to early May 2008, inreasonably close proximity to the date of Mr. White’s arrest, and certainly much earlier than February and March 2009 when twelve ofthe officers testified at the preliminary hearing. It is a reasonable inference and one that I draw that the officers’ memories of theincident would have been better at the time of the SIU interviews than at the preliminary hearing, and their accounts more accurate.

Thisbears on testimonial factors. Five of the officers as well as the two paramedics did not testify at the preliminary hearing. Given thepurpose of the SIU interviews, it is a reasonable inference and one that I draw that their interviews would contain more expansive anddetailed information than any notes they made at the time of the incident that have been disclosed to the defence. [28] Even if the articulation of “likely relevance” set out in Batte applies to this application, Mr.

Morris has pointed to some casespecific information that suggests the records contain information that is not already available to the defence or has potentialimpeachment value. [29] I am satisfied that the interviews and the related diagrams and summaries are likely relevant to Mr.

Morris’s intended application,in particular to the unfolding of events, as well as the credibility of witnesses, and the reliability of their evidence. [30] At the second stage of the inquiry, I must examine the records, weigh the salutary and deleterious effects of a production order,and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer anddefence. In balancing the interest of a third party to privacy with an accused’s interest in making full answer and defence, five factorsshould be considered: 1.

The extent to which the record is necessary for the accused to make full answer and defence; 2. The probative value of the record; 3. The nature and extent of the reasonable expectation of privacy in that record; 4. Whether production of the record would be premised upon any discriminatory belief or bias; and 5. The potential prejudice to the complainant’s dignity, privacy or security of the person that would be caused by production of therecord.

[ 31 ] As the court pointed out in McNeil , above, the latter two factors were tailored to meet the exigencies of sexual assault proceedings. They are of minimal assistance on this application. [ 32 ] In McNeil at paragraphs 39 to 42 , the court addressed the balancing process. The starting point is to assess the true relevance of the records. If the claim of likely relevance is borne out on inspection of the records, the accused’s right to make full answer and defence will, with few exceptions, tip the balance in favour of production.

A third party privacy interest is unlikely to defeat an application for production in cases not governed by the statutory regime, although it may warrant redaction, or the imposition of conditions, or restrictions on the dissemination of the information. The question that can be asked is, if the third party record were in the prosecution file, would there be any basis under the Stinchcombe regime for not disclosing it to the accused?

The court in McNeil reiterated that material that would not, on its own, be admissible may be useful to the defence, for example in cross-examining a witness on matters of credibility, or in pursuing other avenues of investigation. [ 33 ] After advising all counsel that I found the materials to be likely relevant, I listened to the audio-taped interviews, and reviewed the related diagrams and summaries. I also reviewed the testimony of those officers who testified at the preliminary hearing.

I am satisfied that the SIU materials sought are necessary for the applicant to make full answer and defence, and that they have probative value. They consist of accounts of Mr. White’s apprehension, observations of him afterward, including when he was booked at the police station, and the events that led to his transport to hospital by ambulance, all of which are matters that relate directly to the stay application. They provide information additional to that contained in the preliminary hearing testimony.

In some instances, they also reveal inconsistencies between individual officers’ accounts to the SIU and their later preliminary hearing testimony. In others, they reveal inconsistencies as between various officers’ accounts, which also is a legitimate avenue of inquiry by the applicant. The materials have probative value, and are necessary for the applicant to make full answer and defence by way of a stay application. [ 34 ] I must also consider the nature and extent of the interviewees’ reasonable expectation of privacy in the materials.

While it is true that promises of confidentiality were made by the SIU, those promises were not absolute. The interviewees were explicitly told that the promise would not prevail in the event a court ordered disclosure. In the case of subject officers, the practice of the SIU to preserve confidentiality was similarly understood to be subject to a court order to disclose. Further, as Taylor J. noted in Scully , above, the officers and paramedics did not reveal personal or biographical information to the SIU investigators.

Rather, they described events they observed and in several instances their own actions, while performing their public duties as police officers or paramedics. There is no suggestion that production of the material would be premised on discriminatory belief or bias, nor would production prejudice the interviewees’ dignity, privacy or security of the person. In a small number of the recorded interviews, the interviewee was asked for his or her date of birth.

Any concern about disclosure of that information can be addressed through the imposition of conditions, as can the concern about dissemination of the interviews to the media. [ 35 ] I am satisfied that the salutary effects of a production order in this case outweigh the deleterious effects, and that a non- production order would not be a reasonable limit on the applicant’s ability to make full answer and defence. [ 36 ] As I indicated orally, the application is granted. Production of the materials sought is ordered.

Conditions on Production [ 37 ] I imposed the following conditions on production of the materials: 1. After the records have been copied, the originals are to be returned to the exhibit envelope which will be resealed and remain with the court exhibits. 2. No other copies of the records may be made without my prior permission. 3. The copies of the records are to remain within the control of Mr. Morris and Ms. Armour or Mr. Shallow at all times. They may be accessed by those employed by Mr. Morris or the prosecution for the purpose of assisting with the preparation of the case for the applicant or the Crown.

They may not be released to anyone else without my prior p ermission. This includes counsel for the co-accused. The records may be reviewed by Mr. White, but only in the presence of Mr. Morris or his employee. They may not be left with Mr. White. 4. Any portions of the audio-taped interviews that contain information about an interviewee’s date of birth, home address, home or personal cellular telephone number, or marital status may not be reviewed by or otherwise disclosed to Mr. White.

If such information appears in the interview summaries, it is to be redacted by counsel for the SIU before production is made. 5. Under no circumstances may the records or information contained in them be released to or accessed by the media. 6. If Mr. Morris ceases to act for Mr. White during the course of the trial, the defence copy of the records must be returned to me immediately.

7. Upon the expiry of the appeal period, if no appeal has been launched by Mr. White or by the Crown, the copies of the records are to be returned to counsel for the SIU within 7 days. Counsel for the SIU may also seek the return of the contents of the sealed exhibit envelope by written request to me. 8. If an appeal is launched, the copies of the records may be passed to appellate counsel, upon him or her agreeing in writing to be bound by these same conditions and providing that written agreement to counsel for the SIU.

If appellate counsel does not agree to be bound by these conditions, trial counsel must return the copy of the records to counsel for the SIU immediately upon that counsel’s request. Justice M. Fuerst Released: December 16, 2010