R v Blanchard, 2016 ABQB 630

Court of Queen’s Bench of Alberta Citation: R v Blanchard, 2016 ABQB 630 Date: 20161109 Docket: 150463008Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Lance David Blanchard Accused Restriction on Publication Preliminary Inquiry – See the Criminal Code,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file, and it may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Editorial Notice: The restriction expired on December 16, 2016. _______________________________________________________ Reasons for Judgment on Mills Application #2 of the Honourable Mr. Justice Eric F. Macklin

_______________________________________________________ I Introduction [ 1 ] Lance Blanchard, the Applicant, renews his application for production of records pertaining to the Complainant under s 278.3 of the Criminal Code , RSC 1985, c C-46 ( Mills application). [ 2 ] The Court dismissed his first Mills application: R v Blanchard , 2016 ABQB 520 . Since then, evidence was adduced from Cst Roman Crobar. The Applicant relies on this evidence on this application.

II Background [ 3 ] The Applicant faces nine counts including: kidnapping, unlawful confinement, aggravated sexual assault, uttering threats to cause death or bodily harm, attempted murder, and possession of a prohibited weapon. The offences are alleged to have occurred around June 16, 2014. [ 4 ] The preliminary inquiry occurred in June 2015. In the preliminary transcript excerpts filed in support of the first Mills application, Det. Jensen testified that the analyst in the Edmonton Police Service (EPS) Sexual Assault

Section did a background check on the Complainant, now deceased, and with respect to the Edmonton Police Reporting and Occurrence System (EPROS).

She testified that there was very limited information in the police records relating to the Complainant – “some pretty minimal entries for a person’s ...” (153/33-37) [ 5 ] The Complainant was shot and killed on December 12, 2015 in an unrelated matter. [ 6 ] During a voir dire , Cst Crobar testified on October 25, 2016 that he had conducted an EPROS search on October 24 or 25, 2016 to determine whether he had ever arrested the Complainant for being intoxicated in a public place. He located 61 Occurrence Reports and numerous Street Check Reports pertaining to her. Not all of the Occurrence Reports were his.

He determined that he had not arrested her for intoxication in a public place. [ 7 ] Two of the 61 Reports related to his arrest of the Complainant on May 11 and 21, 2013. Crown produced those two Reports. The arrests were for breaches of a recognizance in relation to a July 28, 2012 charge of assault causing bodily harm with a weapon. That charge was stayed on March 10, 2014, prior to the offences alleged against the Applicant. The conditions she breached related to her consumption of alcohol and being in the company of a person with respect to whom she was subject to a “no contact” condition.

Cst Crobar testified that at the time of both arrests, he detected a moderate odour of alcohol emanating from the Complainant as she spoke. [ 8 ] Without going through all of the Street Checks and Occurrence Reports, Cst Crobar could not say whether the other checks or Reports related to any misconduct by the Complainant, only that she was linked to the street check or the occurrence.

He could not say what the Complainant’s involvement may have been in relation to those records. [ 9 ] The Applicant is in possession of the Complainant’s criminal record containing entries relating to breach of conditions, and contempt of court in 2008. Her record contains no adult convictions for any crimes of dishonesty, violence or offences under the Controlled Drugs and Substances Act , SC 1996, c 19. [ 10 ] The evidence before the Court to this point establishes that the Complainant led a somewhat nomadic life, finding shelter when and where it was available. III Argument A.

Applicant’s Position [ 11 ] The Applicant takes the position that the Crown’s case will necessarily depend almost entirely on the Complainant’s statements to the police and her testimony at the preliminary inquiry. The Applicant’s theory is that the Complainant was addicted to crack cocaine and broke into the Applicant’s apartment to get warm, steal food and perhaps steal belongings. This led to a physical altercation and the police were called. [ 12 ] There is some evidence that the Complainant was using drugs in and around the time that the alleged incident occurred.

Further, the Applicant submits that the Complainant’s testimony at the preliminary inquiry raises strong concerns about whether she was under the influence of intoxicants or a mental illness when giving evidence. The Applicant argues that the records are relevant to this question, and to whether she lied about her drug use. [ 13 ] The Applicant reasons that a person who is on crack cocaine at the time of an alleged offence may be an unreliable historian and lack credibility.

The Applicant also argues that the contents of the Reports will be relevant in helping him to establish that a homeless person on crack cocaine must somehow support her addiction and would turn to crime to do so. The Applicant argues that the 61 Occurrence Reports may have information supporting the assertion that the Complainant was a crack addict and was involved in crime to support her habit. They are therefore likely relevant.

The Applicant submits that the records have now been shown to be relevant to an issue at trial being the character, credibility and reliability of the complainant. [ 14 ] As well, the Applicant argues that Det Jensen’s evidence was misleading, which is relevant to the issue of disclosure and to the argument that the police were biased against the Applicant and negligent in carrying out their investigation.

[15] In this Court’s decision on the first Mills application, I found that production of the records sought at that time would be basedon a discriminatory belief or bias, specifically that a complainant with addiction and other lifestyle issues is less likely to have been thevictim of a sexual offence or less likely to be credible. The Applicant emphasizes that he does not take the position that a complainantwith addiction and other lifestyle issues is less likely to have been the victim of a sexual offence. B.

EPS Chief’s Position [16] The EPS relies on its previous submissions as outlined in this Court’s first Mills decision. [17] The EPS notes that the Applicant’s request includes entries related to any incidental contact between EPS and theComplainant. The Complainant has no serious criminal convictions as an adult. A homeless person may have more incidental contactwith the police than one who is not homeless.

Evidence that the Complainant was intoxicated on other occasions would not be relevant towhat occurred at the time of the alleged events or whether she was intoxicated at that time. [18] The EPS submits that it is not clear whether Det. Jensen’s remark about the information in EPROS being “very limited” wasin reference to the quantity of entries pertaining to the Complainant or the nature of the entries. During her cross-examination, she did notcomplete her sentence: “...some pretty minimal entries for a person’s...”, nor was she asked to clarify. C.

Crown [19] The Crown relies on its arguments as outlined in the first Mills decision. [20] The Crown submits that although the Complainant may have had many contacts with police, the number or frequency ofcontacts does not support an inference that these contacts were of a serious nature. The Complainant was homeless, living mainly indowntown Edmonton.

Therefore, it is not unexpected that she would have frequent interaction with the police. [21] The Crown argues that the Complainant’s actual record of convictions is fairly characterized as “minimal”. [22] The Crown submits that production of the records would be based on a discriminatory belief or bias, specifically that acomplainant with addiction and lifestyle issues lacks credibility, is unreliable, and is less likely to have been the victim of a sexualoffence.

V Legal Framework [23] I determined in the previous Mills decision that, given the clear and broad policy objectives reflected in ss 278.1 to 278.91, itis sufficient to trigger the Mills process that a deceased complainant in a sexual assault case had a reasonable expectation of privacy withrespect to the record sought at the time of her death.

I also set out the applicable legal framework at some length. [24] In a nutshell, the test at both stages of the Mills inquiry under s 278.3 is whether the record is likely relevant to an issue attrial, or to the competence of a witness to testify, and production is necessary in the interests of justice.

The Applicant bears the onus toestablish likely relevance; speculative assertions and stereotypical assumptions do not suffice. [25] The phrase “likely relevant” means that there is a reasonable possibility that the information is logically probative to an issueat trial or to the competence of a witness to testify.

An "issue at trial" includes not only material issues concerning the unfolding of theevents which form the subject-matter of the proceedings, but also evidence relating to the credibility of witnesses and the reliability ofother evidence: R v Jackson, 2015 ONCA 832, 128 OR (3d) 161, citing O'Connor, at para 22, R v McNeil, 2009 SCC 3 at para 33,[2009] 1 SCR 66. [26]

Section 278.3(4) provides that it is insufficient, in order to establish likely relevance to an issue at trial, for the applicant toassert that the record exists, may relate to the credibility of the complainant, or was made close in time to a complaint or to the activitythat forms the subject-matter of the charge against the accused. [27] Nevertheless, with the exception of “recent complaint”, those assertions may be taken into account where there is anevidentiary or informational foundation to suggest that they may be related to likely relevance: R v Mills, (SCC),[1999] 3 SCR 668, [1999] SCJ No 68. [28] At both stages, where likely relevance is found, the court must consider a number of factors to determine whether theproduction of the record is necessary in the interests of justice.

Those factors, which are listed in s 278.5(2), relate to both the accused'sright to make full answer and defence, and the right to privacy, personal security and equality of the complainant and any other person towhom the record relates. The accused’s right to make full answer and defence will prevail over the complainant’s expectation of privacywhere the lack of production would render the accused unable to make full answer and defence: Mills at para 89.

VI Analysis [29] As I understand the Applicant’s argument, he takes the position that the records he now seeks will be relevant in assisting himto demonstrate one or more of the following: - the Complainant fabricated her story to exact revenge against the Accused and to cover up that she broke into his apartment tosteal property

- the Complainant was using drugs or suffered a mental illness at the time of the alleged offence, and this would affect herbehaviour, perception, reliability and credibility - the Complainant lied about her drug use during the preliminary inquiry - Defence counsel did not have a full opportunity to cross-examine the Complainant during the preliminary inquiry - the Complainant felt an animus against the Applicant - the Complainant’s character, credibility and reliability were such as to undermine the Crown’s evidence - police conducted a biased and negligent investigation, and - Det.

Jensen’s evidence was misleading, leading to a lack of disclosure. [30] There is no doubt that the credibility and reliability of the Complainant, and her narrative, will be issues in the trial. I acceptthat there is some evidence to the effect that she was using drugs around the time of the incident. [31] I noted in the prior Mills decision that the mere assertion that a record is relevant to credibility is not enough.

The Accusedmust point to some "case specific evidence or information" to justify that assertion; he must be able to point to something in the recordadduced on the motion suggesting that the records contain information which is not already available to the defence or has potentialimpeachment value: R v WB (2000), (ON CA), 145 CCC (3d) 449, [2000] OJ No 2184 at para 75 (CA). [32] Cst Crobar testified before this Court.

He was recalled to give further evidence, testifying on October 25, 2016 that he hadconducted an EPROS search on October 24 or 25, 2016 to determine, as requested by Defence counsel, whether he had ever arrested theComplainant for being intoxicated in a public place. He had located 61 Occurrence Reports and numerous Street Check reports involvingthe Complainant. He confirmed that he had never arrested the Complainant for intoxication in a public place. [33] Two of the 61 Reports related to his arrest of the Complainant on May 11 and 21, 2013.

Crown produced those two Reports.The arrests were for breaches of a recognizance in relation to a July 28, 2012 charge of assault with a weapon. The Complainant wascharged along with two co-accused. The matter was stayed as against the Complainant and one of the co-accused in March 2014, whilethe third co-accused was sentenced to a period of incarceration.

The Complainant had also been charged with domestic assault in 2011and that charge was withdrawn in February 2012. [34] Cst Crobar testified that at the time of both arrests for breach of recognizance, he detected a moderate odour of alcoholemanating from the Complainant as she spoke. Without going through all of the Street Checks and Occurrence Reports, Cst Crobar couldnot say whether the other checks or Reports related to any misconduct by the Complainant, only that she was linked to the Street Checkor the occurrence.

He could not say what the Complainant's involvement may have been in relation to the checks or occurrences givingrise to those records. [35] In my view, the breaches of recognizance have not been shown to be relevant to any of the issues raised by the Applicant. [36] As for the stayed assault with a weapon charge and the withdrawn assault charge, defence counsel referred to R v Gonzague, (ON CA), [1983] OJ No 53, 34 CR (3d) 169 (CA) in which it was held that defence counsel was entitled to cross-examine a witness on the facts underlying 15 pending charges of fraud in order to impeach his credibility. [37] As noted in R v Gassyt (1998), (ON CA), 127 CCC (3d) 546 (Ont CA), the fact that a witness is chargedwith an offence will generally have no bearing on his or her credibility and cross-examination on that fact will not be permitted, unlessthe outstanding charge is relevant to the issue of credibility such as in a situation where the witness may have a motive to favour theprosecution by reason of the outstanding charge.

An ordinary witness may be cross-examined on the underlying facts to the extent thatthese facts are relevant to the witness's credibility or to another issue in the trial. [38] Unlike the charges in Gonzague, the offence of assault is not a “crime of dishonesty”. The Applicant’s speculation is that theComplainant was in the habit of stealing to support her crack cocaine habit. She was charged with assault, not robbery or possession ofdrugs. In my view, the breaches of recognizance have not been shown to be relevant to any of the issues at trial.

Furthermore, there is nosuggestion that the assault charges had anything to do with the incident involving the Applicant two years later, and no inference can bedrawn from the fact that the charges were even laid, given that one was stayed and the other withdrawn. [39] As for the other records, the mere fact that a police occurrence report concerns a complainant or witness is not enough tomake the report relevant to an otherwise unrelated prosecution.

For example, the fact that a complainant has reported sexual violence inthe recent or distant past, provides sexual services for money, or suffers from addiction is not, without more, enough to render a policeoccurrence report relevant. However, occurrence reports which raise legitimate questions about the credibility of the complainant or awitness, or some other issue at trial, will be treated as relevant: R v Quesnelle, 2014 SCC 46 at para 17, [2014] 2 SCR 390. [40] It has already been established that the Complainant lived on the street for periods of time.

In these circumstances, it isdifficult to attribute any particular significance to the mere fact that there are numerous Occurrence Reports and Street Check Reportslinking or pertaining to her. [41] It is incumbent upon the Applicant to point to some "case specific evidence or information" to support the assertion that therecord sought is likely relevant to an issue at trial. [42] The Applicant has pointed to no case specific evidence or information suggesting that the records sought will be relevant tothe defence allegations that: the Complainant fabricated her story to exact revenge against the Accused and to cover up that she brokeinto his apartment to steal property; she was using drugs or suffered a mental illness at the time of the alleged offence, and this would

affect her behaviour, perception, reliability and credibility; she lied about her drug use during the preliminary inquiry; she felt an animus against the Applicant; or her character, credibility and reliability are questionable. [ 43 ] Again, it is generally insufficient to assert that a record exists, may relate to the credibility of the complainant, or was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused. [ 44 ] That leaves the issue of whether Det. Jensen’s evidence was misleading, leading to a lack of disclosure. I note that Det.

Jensen stated in cross-examination during the preliminary inquiry that EPROS revealed very limited information, and “some pretty minimal entries for a person’s...” Defence counsel did not seek clarification of the unfinished sentence. [ 45 ] In my view, the evidence of Det. Jensen does not conflict with that of Cst Crobar, nor can it be said to have been misleading. Defence counsel was provided with the Complainant’s limited criminal record.

Cst Crobar confirmed, when recalled to the stand, that he had never arrested the Complainant for being intoxicated in a public place, although he had arrested her for breach of a “no alcohol” condition in her recognizance in relation to a charge that was stayed prior to the incident alleged against the Applicant. Defence counsel has not established that Det. Jensen erred in qualifying the relevant records as revealing “limited information” or being “pretty minimal”.

Again, while there were numerous Occurrence Reports or Street Checks linked to the Complainant, none has been shown to be probative of anything relevant to the charges against the Applicant. [ 46 ] The Applicant has pointed to no case specific evidence or information suggesting that the records sought will be relevant to the allegation that the police conducted a biased and negligent investigation of the incident in relation to which the Applicant is charged. [ 47 ] The factors listed in s 278.5(2) require the Court to balance the accused's right to make full answer and defence, and the right to privacy, personal security and equality of the complainant and any other person to whom the record relates.

The Applicant has not established that the records are necessary to make full answer and defence, nor has he established that the records have any probative value or that the integrity of the trial process would be undermined if production is not ordered. [ 48 ] In my view, any production of the records in question would be based on a discriminatory belief or bias, specifically that a complainant with addiction and other lifestyle issues is less credible and less likely to have been the victim of the offences charged.

While the Complainant is deceased, production would constitute an unwarranted interference with her expectation of privacy. It would be contrary to society’s interest in encouraging the reporting of sexual offences, particularly by some of the most vulnerable members of society, namely homeless women. VII Conclusion [ 49 ] The Applicant has not established that the records sought by him pass the threshold test of likely relevance. [ 50 ] The application is dismissed. Heard on the 8 th day of November, 2016. Dated at the City of Edmonton, Alberta this 9 th day of November, 2016. Eric F. Macklin J.C.Q.B.A.

Appearances: Thomas Engel for the Applicant

Patricia Innes for Her Majesty the Queen in Right of Alberta Katrina Haymond for the Chief of the Edmonton Police Service