Murrin v. Brake, 2013 ABQB 142

Court of Queen ’ s Bench of Alberta Citation: Murrin v. Brake, 2013 ABQB 142 Date: 20130305 Docket: 0803 12682 Registry: Edmonton Between: Melanie Murrin and Greg Murrin Plaintiffs - and - Wade Brake and Northern Pride Construction Ltd. Defendants _______________________________________________________ Memorandum of Decision of L.A.

Smart, Master in Chambers _______________________________________________________ [ 1 ] The Plaintiff Melanie Murrin brought this action against the Defendants, Wade Brake and Northern Pride Construction Ltd. for injuries sustained in a motor vehicle accident that occurred on October 2, 2007 in Fort McMurray, Alberta. Allegedly, she was struck from behind by a gravel truck owned by the Defendant Northern Pride Construction Ltd and operated by the Defendant, Wade Brake while he was impaired by alcohol.

Murrin applies for production of the criminal disclosure package relating to certain charges laid against Brake in relation to that motor vehicle accident. The application is brought pursuant to Rule 5.13 (1) of the Alberta Rules of Court as against Mr. Brake and counsel who acted on his behalf in relation to the criminal proceedings, John S. Webb. [ 2 ] Neither Mr. Brake or his counsel for this civil action appeared at the application. Mr. Webb appeared as he had been served

[2] Neither Mr. Brake or his counsel for this civil action appeared at the application. Mr. Webb appeared as he had been servedand wished to make general representations as to production of criminal disclosure packages and to ensure that any order grantedreleased him from any implied undertaking he may have had with respect to the contents of the disclosure in his possession. This issue ofproduction of the contents of a criminal disclosure package was canvassed thoroughly by Justice Greckol in Bourgeois v. Bourgeois,2004 ABQB 35.

That case focused more specifically on the production of records showing a blood-alcohol content where blood samplesobtained by investigating police officers may have been obtained in violation of the defendant’s rights under the Canadian Charter ofRights and Freedoms. No trial had been held in that case and therefore the admissibility of the blood samples was never tested incriminal proceedings. In the present circumstance, Mr. Brake was convicted under Section 255 (2) of the Criminal Code for operation ofa motor vehicle while impaired by alcohol and causing bodily harm to Murrin. During questioning Mr.

Brake testified that he had fourbeers over the course of approximately one hour at the establishment known as Reckless Lounge in Fort McMurray and at the time of theaccident was driving Northern Pride’s gravel truck from there to its shop. There is no evidence before me nor argument made that any ofthe contents of the criminal disclosure package was obtained in violation of Mr. Brake’s rights under the Charter. [3] It is important to note that this is not a request that the Crown produce the disclosure. There is considerable authority to saythat the Crown cannot be compelled to do so.

The Crown has provided a letter stating that the disclosure package in question has beenreviewed and noted that there are no public interest concerns as outlined in the D.P. v. Wagg, (2002), (ON SCDC), 61 O.R. (3rd) 746 decision.

In addition, the Crown confirmed that there is no objection to the lifting of the implied undertaking ofconfidentiality for the limited purpose of allowing production of the disclosure package in this civil proceeding. [4] In Bourgeois, Justice Greckol concluded that the records pertaining to the defendant’s blood-alcohol content must beproduced by the defendant’s criminal counsel to the defendant’s civil counsel. Since the plaintiff sought production of records revealingblood-alcohol content derived from a Criminal Code demand, a claim for privilege or public interest immunity may arise.

On receipt ofthe records by civil counsel the defendant must disclose those records in the Affidavit of Records and produce them unless the defendantchooses to assert or maintain a claim of public interest privilege with respect to those records. [5] Mr. Webb argues that Justice Greckol did not expressly address the issue that records in the hands of the Crown will not beproduced but when an accused obtains disclosure needed to defend he faces the consequential jeopardy that the disclosure would then beavailable to litigants in civil proceedings.

This consequence may be of such significance that an accused may feel compelled to declinereceiving disclosure thereby improperly impeding his ability to raise a defence in criminal proceedings.

He argues that production oughtnot to be ordered as this tips the balance in favor of the public interest in non-disclosure of information procured by Criminal Code orother statutory compulsion over public interest in making all relevant evidence available in the interests of the administration of justice.As Justice Greckol put it, “When the court makes a determination as to disclosability of evidence obtained by the state throughcompulsion of statute, Charter values must inform the decision.” [6] It is seldom that a Master is presented with a Charter issue.

The opportunity to comment on what “can be demonstrablyjustified” in these circumstances is enticing, however, in my view, that determination is premature. The application is made by Murrinfor the entire Crown disclosure. What exactly is in that disclosure is unknown to the Plaintiff although I am satisfied that at least some ofit would be relevant and material to this action. Delivery of the entire Crown disclosure file to the Plaintiff is inappropriate. Nonetheless,Brake must disclose all records relevant and material pursuant to Rule 5.6, and if there is an objection to produce, the grounds for theobjection.

In order to meet this obligation Brake’s civil counsel must first have the records. [7] Under Division 2 of the Rules, the Court may give any relief or remedy available under the Rules whether or not sought toadvance the purpose and intention of the Rules. In that light, I will grant relief similar to that granted by Justice Greckol in Bourgeois,that is: (

a) Brake’s criminal lawyer Mr. Webb is released from any implied undertaking with respect to the contents of the Crown disclosure; (

b) Brake’s criminal lawyer, Mr. Webb is granted leave to release the complete contents of the Crown disclosure to the Defendants’lawyers for this civil proceeding; (

c) The Defendant Brake will disclose the existence of any relevant and material documents pursuant to Rule 5.6(1) and identify anydocuments he objects to produce and the grounds for objection pursuant to Rule 5.6(2)(b). [8] Costs of this application will be in the cause.

Dated at the City of Edmonton, Alberta this 5 th day of March, 2013. L.A. Smart M.C.C.Q.B.A. Appearances: Caitlin Ponath Duncan & Craig LLP for the Plaintiffs John S. Webb Wood Buffalo Law in person