THURSDAY, JULY 8, 1999
--- Upon commencing at 10:10 a.m.
--- Accused present
--- In the absence of the jury
THE COURT: Are we going to go ahead with the Jesty matter now and come back to the other, or finish with the ---
MR. DANDYK: Your Honour, since we have people from out of town, I would prefer to do the Jesty matter first. What I can indicate, Your Honour, because I was preparing on the Jesty matter, Miss Bair will come in in relation to the editing aspect. Just a division of duties. Mr. Cooper is not available today, and I would prefer to do that later, if we could, and then deal with this matter.
THE COURT: Tell Mr. Cooper I agree with that observation by saying it's a little wind that blows nobody any good.
MS. MULLIGAN: I have no problem with doing it that way. I'm dealing with both issues, so it doesn't really matter to me.
THE COURT: Okay. All right. Well then let's accommodate out of town counsel if we can.
MS. MULLIGAN: We have here today, as I understand it, Mr. Nolman, who is legal counsel for the Ontario Provincial Police Association, who's present in the Court. There's also Inspector Hamelink who's come pursuant to a subpoena that I had issued. I will let Mr. Nolman, of course, speak for himself, but I understand that he wishes to have standing, and it will be my position that,
until Your Honour rules that these are third party documents as opposed to Stinchcombe disclosure, there is no standing in the Ontario Provincial Police Association on behalf of Constable Jesty.
My initial argument will be on the application that this is Stinchcombe disclosure based on the authorities and based on what in fact I'm seeking, and that Your Honour will have to make that initial ruling as to whether it's Stinchcombe or whether it's third party.
If and when Your Honour determines it's a third party application, then we have to be given the opportunity to put forward that low threshold basis for going further on the third party application and have Your Honour inspect the documents. At this point we're not there yet, and my submission would be that, until we get to the point where Your Honour finds it's not Stinchcombe, should Your Honour so find, that would be the point where the Ontario Provincial Police Association counsel would be appropriately applying for standing on behalf of Officer Jesty, but I'll leave Mr. Nolman to speak for himself and the Crown, of course, on that matter.
MR. DANDYK: I gather Mr. Morris has nothing to say.
MR. MORRIS: I agree with Ms. Mulligan.
MR. DANDYK: All right. Your Honour, my first observation will be, if there's going to be some argument obviously counsel -- maybe I'll provide a copy of the affidavit to the Court. It will facilitate things for argument purposes.
MS. MULLIGAN: Sorry, what affidavit?
THE COURT: The Notice of Motion.
MR. DANDYK: That was served on, I believe -- sorry, subpoena.
THE COURT: The subpoena.
MR. DANDYK: I'm sorry, the subpoena. And we will look, first of all actually, on the first page of the subpoena it would appear that no one needed to attend. It appears to say the 8th of July, 1990. So, apparently, they actually complied to something they didn't have to.
The other aspect that I'll indicate, and I'll do it at this point, is the Appendix A really gives us the indication of what is being requested. Aside from a kitchen sink, fishing experiment, which I will refer to later, it relates to files in relation to Constable Jesty.
With respect, at any point that issues of privacy interests and/or interests of the officer would arise, and if we're arguing as to whether third party records kick in or not, or which criteria exists, in the Crown's respectful submission, intervenor status would be available where third party records or the Stinchcombe aspect because the interests of the officer surely can be addressed, and that officer or representative for that officer has the right to be heard.
I would respectfully submit that, under either criteria, intervenor status should be allowed, and particularly when a portion of the argument addresses whether in fact third party record analysis is required, and surely they should be
able to make submissions to it. I think that would be obvious, I would respectfully submit.
Obviously, Mr. Nolman can speak for himself, but I would think, with respect, that that would be rather apparent.
THE COURT: Yes, sir.
MR. NOLMAN: Thank you, sir. Good morning.
THE COURT: Good morning.
MR. NOLMAN: I will, first of all, take very little of the Court's time. At this point, sir, I agree with my friend of my immediate right that there is a third party question here, and my other friend's suggestion that Stinchcombe versus O'Connor is the first area of argument. I respectfully submit, when we're dealing with third party records, that may not necessarily be the issue, and thus I do agree with my friend, my immediate right that there should be intervenor status allowed.
If you see that as being appropriate, I am counsel for the Ontario Provincial Police Association, who represents all of the non-commissioned officers from the Ontario Provincial Police, sir, and as a result I would be putting forth a position that there is some privacy expectation in the records, the personal records held by the OPP.
So subject to any questions, sir, those are my initial comments. Thank you.
THE COURT: All right.
MS. MULLIGAN: If I can just reply briefly. My thinking is this, Your Honour, and I've been referred to the case of Tomlinson and provided it
-- I've been referred by Mr. Dandyk to it, and provided it to the Court.
The cases, in large measure, seem to suggest that whether there have been findings of misconduct or findings of convictions under the Police Services Act, that sort of thing, that they are akin to a criminal record.
Now, it would be very odd, indeed, if we had people here, witnesses arguing about privacy interests or O'Connor or the disclosure of their criminal records when they're witnesses in the proceedings. We all know that that kind of thing falls under Stinchcombe. So that's why I say that Your Honour should make the threshold finding as to whether it is Stinchcombe disclosure or whether it is O'Connor disclosure on the basis of the authorities.
Once we get over that hurdle, then the standing may kick in, but at this stage it's premature. We'd never get anything done if we had people coming and they had the ability to intervene that their criminal record shouldn't be disclosed on each and every occasion, or their convictions under the Unemployment Act or whatever, you know, those kinds of misconducts or findings.
If Your Honour finds that that's akin, that these kinds of findings are akin to a criminal record, as the cases seem to suggest, then there's no need for the intervenor and there's no need to have an extra party to the proceedings.
THE COURT: Mr. Dandyk.
MR. DANDYK: Your Honour, I was simply going to
indicate the grocery list, that is Appendix A, speaks of much more than that, and the caselaw is not in fact clear cut, and it is disputed, and the materials before the Court, and the Court actually was provided it previously. I can indicate I added or I have provided cases previously discussed and provided -- I've also added Shepherd, which is referred to in that decision of Justice Beaulieu, and I've actually obtained a copy. Kindly, counsel brought it with him, and I provided copies to the Court and counsel.
With the greatest of respect, it's not a clear cut area. Counsel is asking for much more than just findings of guilt in relation to criminal matters here. They're looking for -- I mean, I'll read it:
1. All records concerning complaints ...
2. All records concerning investigations ...
3. All records of any disciplinary actions ...
4. All records related to convictions under the Police Services Act and/or the Police Act ...
It's much much wider. If we read the caselaw, there's often an institutional analysis done as to whether it is Attorney General involvement or ownership or Solicitor General and so on, and when the Solicitor General is involved, for which the Solicitor General is virtually involved in all of these as to control of them, then in actual fact they're usually found to be O'Connor records in
some approaches.
Obviously, Justice Dambrot thinks otherwise, and the Crown is obviously of the view that Justice Dambrot takes the approach the wrong way.
So when it is contested, when it is unclear, when there are arguable issues as to whether in fact all of those play part, in the Crown's respectful submission, obviously the third party has the right to be heard on that basis because it is not clear cut. It is not open and shut. The law is not as counsel is not unconditionally stated as counsel wishes it to be. It's simply arguable and it is not clear cut.
So I would respectfully submit they have a right to be heard.
THE COURT: The position that the Crown take is that there is no criminal record of Constable Jesty to disclose in the sense of the Criminal Code, and that's the end of Stinchcombe. Everything else is debatable as to where it falls.
MR. DANDYK: It would seem to be that way.
THE COURT: That's generally what you're saying.
MR. DANDYK: Yes.
THE COURT: And I assume that you're saying that there is no such criminal record with respect to
---
MR. DANDYK: Well, none I'm aware of. None I'm aware of, no. I can only say "none I'm aware of". I didn't do a criminal record run.
THE COURT: You didn't do a CPIC.
MR. DANDYK: I didn't do a CPIC run, but -- and none has ever been requested.
THE COURT: All right.
McWILLIAM, J. (Orally):
[1]It will probably save time, in my view, if we have an intervenor right now. I realize the difficulties of creating precedents, and people will come forward every time, but no one will ever go to any case I ever decide as a precedent for anything. So I am safe from that accusation.
[2]It is probably just as simple, I think, to hear what Mr. Nolman has to say from the beginning as from the end because he may well support the distinction that there are no disclosable records within the meaning of Stinchcombe, he may well argue that point. So it seems to me that not to have him argue that point is to really agree with defence counsel on that point, and I am not sure that I can do that at this stage.
[3]So I would grant intervenor status, then, to counsel for the Association.
* * * * * * * *
MR. NOLMAN: Thank you, sir.
THE COURT: You're welcome. If it facilitates matters, you can come up and -
MR. MORRIS: I'll volunteer to move, Your Honour.
THE COURT: Yes, for notetaking and that sort of thing. Thank you very much, Mr. Morris. I guess you don't have to move.
MR. MORRIS: No.
THE COURT: Yes, Ms. Mulligan.
MS. MULLIGAN: Yes. Your Honour, this is an overview. What we're seeking are materials that we say are in the hands of the Ontario Provincial Police. I noted in Mr. Dandyk's submissions just now he's going to try and say that's the Solicitor General. Well, yes, indeed, the Ontario Provincial Police are governed by the Solicitor General as opposed to the A.G.
MR. DANDYK: Are we into argument now?
MS. MULLIGAN: Yes.
MR. DANDYK: All the evidence that counsel wishes to rely on has been called?
THE COURT: I assume so.
MR. DANDYK: That's fine. Thank you.
MS. MULLIGAN: For the purposes of the argument as to whether Stinchcombe or O'Connor, yes. If Your Honour finds that it's O'Connor, we may have to call some evidence at that point but not at this point, in my submission.
MR. DANDYK: So for the basis of the Stinchcombe argument, all of the evidence is before the Court?
MS. MULLIGAN: Yes, Mr. Dandyk.
MR. DANDYK: Thank you. So there's no evidence.
MS. MULLIGAN: Mr. Dandyk, please.
MR. DANDYK: I just want to be clear.
MS. MULLIGAN: Your Honour, maybe I can -
THE COURT: Well, I don't know. I have some material which was filed with respect to rulings that were made by Mr. Edelson and -
MR. DANDYK: Yes, I have those, Your Honour. I have two transcripts, I believe, Phillips ---
THE COURT: Not by Mr. Edelson, I'm sorry, by Judge Nadelle.
MR. DANDYK: Phillips and Teaffe, yes, I have those, Your Honour.
THE COURT: Okay.
MS. MULLIGAN: I suppose, Your Honour, I have under subpoena, although it said 1990, I spoke with Inspector Shard who knew exactly what date I was talking about, and it doesn't surprise me at all that they attended. I suppose I could call the inspector to say yes or no there is a file, if that would assist, but I think, until the initial determination is made as to whether I should even know that, that would be unfair.
If that's going to tie my hands, if Mr. Dandyk is going to suggest that I haven't called evidence that there is a file when the officer has attended here, I think that that should be made clear, and we shouldn't be engaging in such practice on an issue like this. Mr. Dandyk should make clear if it's going to be his position that there's no evidence that there's even a file, then I'll call the officer to the stand with his file. I mean, if that's ---
MR. DANDYK: I will not tell counsel how to run their case. If they wish to call evidence on the basis of an argument, they could do so. I just wanted to clarify that. I'm not going to tell them how to do their job.
MS. MULLIGAN: Fine. We call Inspector Hamelink then.
THE COURT: All right.
FRED HAMELINK: SWORN
EXAMINATION IN-CHIEF BY MS. MULLIGAN:
Q. Inspector Hamelink, I understand you're with the Ontario Provincial Police?
A. Yes, ma'am.
Q. Are you with the Professional Standards Branch?
A. Yes, ma'am.
Q. And the Professional Standards Branch, sir, can you tell me, is that a branch of the actual Police Department?
A. It's an actual bureau of the Ontario Provincial Police, yes.
Q. Would it be under any different -- I know it has different tasks but would it be on any different standing than, for instance, the Major Crime of the PCIB Bureau?
A. Insofar, ma'am, that we do not have any involvement with criminal activity, it's strictly policy and conduct issues committed by our officers.
Q. All right. And ---
THE COURT: But you ultimately report to the Superintendent of the OPP who then runs everything: you, the PCIB, everybody.
A. That is correct.
THE COURT: Okay.
MS. MULLIGAN: Q. Is it the Commissioner of the
OPP, is that who the head person is?
A. Yes, that's correct.
Q. Okay.
THE COURT: Okay, Commissioner. Sorry.
MS. MULLIGAN: Q. As far as the subpoena that you've received, without telling me anything that may be in fact contained in your records until His Honour orders that to be appropriate, can you tell me, sir, is there a file within the possession of the Ontario Provincial Police with respect to Constable Jesty?
A. I have to qualify my answer here, ma'am. I did not receive a subpoena, Inspector Shard was faxed a subpoena. I responded on his behalf.
The second part of your question, yes, there is a file that is contained within the Ontario Provincial Police on Constable Jesty.
Q. And is this a file that would be maintained within the Professional Standards Branch?
A. Yes, it is.
Q. Okay. And files contained within the Professional Standards Branch, as a general rule, have, I take it well, maybe you can tell me. It would contain discipline records, that sort of thing?
A. It could contain discipline records, yes.
Q. Would such a file contain convictions or findings of misconduct under the Police Services Act, the predecessor of the Police Act?
A. Yes.
Q. And if any action is taken internally by a Chief or -- well, Commissioner in the OPP's case or by any superior officer or by the Professional Standards Branch, would notation of what action was taken be in that file?
A. Provided it went to that level, yes.
Q. Just as a matter, I suppose, of operating procedure of the Ontario Provincial Police, if a complaint is made by an officer about another officer, for instance, to his superior or her superior, is there some process by which the complaints are to be turned over to the Professional Standards Branch at some point in the proceeding? What is the procedure, what is the standard procedure?
A. That could happen. However, if it's a complaint of, say, a minor nature from one officer to the next, and it's reported to the supervisor of the officer complained about, at that point the supervisor has some options. He could push the matter further depending on the seriousness of the allegation, or he could deal with it personally and make a notation in the officer's staff personnel, and that could be then referred too on his annual evaluation.
Q. And those annual evaluations, is that something that's maintained within your files?
A. We receive copies of them, yes.
Q. When is there -
A. Can I qualify that answer also?
Q. Of course.
A. Sometimes supervisors are very tardy in completing these annual evaluations, and sometimes we don't receive them.
Q. But that's what should happen as a rule?
A. As a rule.
Q. Okay. Is there a point or is there a nature of a complaint or any guidelines as to when a complaint must be forwarded to the Professional Standards Branch? Is there some procedure or some standard that the officers know that this is something that must come to the Professional Standards Branch?