R. v. Dowling, 2011 ABQB 302

Court of Queen’s Bench of Alberta Citation: R. v. Dowling, 2011 ABQB 302 Date: 20110504 Docket: 090415670Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - David Allyn Dowling Applicant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice L.J. Smith _______________________________________________________ Introduction [1] Mr. Dowling applies for disclosure further to that already provided by the prosecution from an inquiry made of HealthCanada.

The question is whether the request is for first party disclosure pursuant to the Crown’s obligations under R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326 or for third party disclosure under the production regime in R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411. The Facts

[ 2 ] Mr. Dowling was the holder of a valid licence from Health Canada permitting him to grow marijuana (49 plants) for one individual (Dambroso) who was licenced to use the marijuana he produced. [ 3 ] Mr. Dowling is charged with five offences all dated February 5, 2009. In abbreviated form, the charges are: production of, possession for the purposes of trafficking of and trafficking of cannabis marijuana, production of cannabis resin and possession of proceeds of crime. [ 4 ] Mr. Ulrich Reh will be a crown witness at the trial. It is alleged he purchased from Mr.

Dowling thereby proving elements of some of the alleged crimes. [ 5 ] Mr. Dowling alleges that he and Mr. Reh were involved together in a legal enterprise for which Mr. Dowling was licenced. Things deteriorated between them and Mr. Reh’s credibility will be a central issue in the trial. [ 6 ] Under Stinchcombe the Crown initially produced Mr. Dowling’s licence. The Defence requested that the Crown inquire of Health Canada for other documents relating to Mr. Dowling’s dealings with Health Canada and for information relating to Mr. Reh.

The Crown made the inquiry requested. [ 7 ] Health Canada responded by providing a redacted copy of Mr. Dowling’s file. Health Canada’s employee, Mr. Mercer, filed an affidavit. [ 8 ] Mr. Mercer’s evidence is that Mr. Dowling’s file showed that he was named as the Designated Producer by more than one applicant. Private information from each applicant has been redacted. Mr. Mercer says: 16. In each document related to Mr. Dowling, I identified and redacted personal information about individuals other than Mr.

Dowling. ....I protected the personal information ....by obscuring it with a grey block and included the redacted record as part of the personal information to be approved for disclosure... 17. Where entire pages contained only personal information of another individual that was unrelated to Mr. Dowling, I redacted those complete pages ..... Mr. Mercer does not say whether his redactions related to Mr. Reh. [ 9 ] Mr. Mercer deals with Mr. Reh in paragraph 22 of his affidavit. 22. I was not provided with records relating to Ulrich Reh. Attached to this my affidavit as Exhibit “H” is confirmation from Mr.

Hosine Abid, then Acting Director of the Marihuana Medical Access Division, that no records from Mr. Reh were located. Exhibit “H” consists of hard copy of two computer search screens, one for Ulrich Reh and the other for reh Ulrich. Both disclose “no matching records.” There is no evidence as to whether the search engine searches all documents in the system for a name or whether it searches for licence applicants / holders. The latter can logically be inferred as a realistic minimum. [ 10 ] It was suggested by Crown that Defence cross examine Mr. Mercer.

Although that offer was not declined, questioning was not done in the limited time frame available. In the circumstances, I am satisfied such a procedure would likely have been futile. It is unlikely Mr. Mercer would offer potentially private information to the Defence under oath without oversight of some sort, at minimum that which he sought and received in relation to the disclosure already given.

[11] I find the evidence of Mr. Mercer, particularly but not limited to paragraph 22 and at Exhibit H, cannot answer the questionof whether Mr. Reh was mentioned in the Dowling file. [12] It is noted that while Mr. Dowling’s licence permits sale to one user, the file discloses there were a number of applicants. Ifind the Defence has demonstrated some relevance by linking Mr. Reh’s alleged activities with Mr. Dowling to the question of credibilityof Mr. Reh.

Position of the Parties [13] The Defence asks that the Crown make a further request of Health Canada to review the disclosure already given todetermine whether Mr. Reh’s name was redacted and if so, to produce the documents in an unredacted form were they concern Mr. Reh.The Defence maintains that this request of Crown continues its obligation under Stinchcombe; that is, Crown’s obligation to make areasonable request which Health Canada can refuse. [14] The Crown maintains that it has completed its obligation under Stinchcombe. This matter ought to proceed under theO’Connor disclosure regime.

The Defence has not proceeded under O’Connor - there being no subpoena ducas tecum to HealthCanada, Notice to Mr. Reh or Notice of Motion and Affidavit. Therefore, no further order can yet be made. The Law [15] R. v. MacNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66 sets out the applicable law.

Some of the guidance in MacNeil,following, is relevant to the matter before the Court. [16] Stinchcombe regulates disclosure of the fruits of the investigation (all relevant information in the Crown’s possession)subject to exceptions, and the reciprocal obligations of the police and the Crown (MacNeil at 14). [17] Where the Crown is put on notice of the existence of relevant information within a different department of Government, theCrown must reasonably inquire and if the Crown is denied access, then it must inform the Defence so the Defence can determine anappropriate course of action (MacNeil at 48 and 49). [18] By reasonably inquiring the Crown is bridging the gap between first and third party disclosure (MacNeil at 51). [19] Crown entities, other than the prosecuting Crown, are third parties under the O’Connor production regime (MacNeil at 13). [20] “The existence of a reasonable expectation of privacy and its impact, if any, on a third party’s obligation to produce is alwaysa contextual, fact-based inquiry.” (MacNeil at 12) [21] The Privacy Act, R.S.C. 1985, c.

P-21 requires in S. 8(1) that “Personal information under the control of a governmentinstitution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance withthis section.” Further, 8(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed

. . . (

d) to the Attorney General of Canada for use in legal proceedings involving the Crown in right of Canada or the Government of Canada; Findings [ 22 ] It might appear to be practical to ask the Crown to modify its Stinchcombe request of Health Canada to expose references to Mr. Reh in Mr. Dowling’s disclosed file, if there are any. However, Health Canada well may refuse such a request on privacy grounds. [ 23 ] Such a refusal would not be an unreasonable refusal given the wording of S. 8 (2) (d).

The sequencing of S. 8 suggests an attempt to obtain consent of the individual to whom the private information relates is a preferred first option. [ 24 ] Further, the further request for disclosure regarding Mr. Reh must be inferred to be for personal information since that is the nature of the information which Mr. Mercer redacted from the Dowling file. [ 25 ] Mr. Reh, despite being a crown witness, has an expectation of privacy regarding his personal information.

The O’Connor production regime is designed to address such concerns. [ 26 ] The gap between the prosecuting Crown and Health Canada was appropriately bridged by the Crown’s initial inquiry at the request of the Defence. The answering by the Crown of the initial request regarding Mr. Reh cannot be said to be inconsistent with the denial of the current request.

The fruits of the initial request must have been for licencing information and cannot be said to have been for personal information. [ 27 ] In my view the O’Connor production regime is the correct procedure in these circumstances. [ 28 ] The question remains whether the Defence is able to establish likely relevance. However, this question remains for another day. Conclusion [ 29 ] Should the Defence wish, it shall bring an O’Conne r application. The Crown shall provide Mr. Reh’s address for service. The application may be set at the commencement of trial. Heard on the 29 th day of April, 2011.

Dated at the City of Edmonton, Alberta this 3rd day of May, 2011.

L.J. Smith J.C.Q.B.A. Appearances: Philip G. Lister, Q.C. for the Applicant Adam Halliday, Crown Prosecutor for the Respondent/Crown David Stam, Justice Canada, Prairie Region for Health Canada