R v Blanchard, 2016 ABQB 685

Court of Queen’s Bench of Alberta Citation: R v Blanchard, 2016 ABQB 685 Date: 20161205 Docket: 150463008Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent/Crown - and - Lance David Blanchard Applicant/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 By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any way.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 #3 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). My decisions relating to his two earlier Mills applications are found at 2016 ABQB 520 and 2016 ABQB 630 . II Background [ 2 ] 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. [ 3 ] The Complainant was shot and killed on December 12, 2015 in an unrelated matter. [ 4 ] Since the last Mills application, Defence counsel has obtained copies of the informations and endorsements in two criminal matters involving the Complainant. [ 5 ] The first information relied on by the Applicant contains one count of unlawful assault of Richard Bos on or about November 25, 2011 by the Complainant.

In the transcript of proceedings before the Justice of the Peace on November 26, 2011, Cst Buchanan provided information to the effect that the Complainant had assaulted her boyfriend, Richard Bos, when she was extremely intoxicated; the Complainant was an admitted alcoholic; and there had been previous domestic violence between the couple with respect to which she was the complainant. Cst Buchanan noted “alcohol and crack cocaine use in the relationship, but, on this date, only alcohol involved. No mental illness...” (5/26-27).

The Complainant requested bail on conditions concerning alcohol and counselling. [ 6 ] The Applicant requests all records relating to the prosecution of the Complainant in relation to the Complainant’s assaultive behaviour and the reference to “alcohol and crack cocaine use in the relationship, but, on this date, only alcohol involved”. [ 7 ] In the second information, the Complainant was a co-accused with Mr. Bos and one Erin Halfe on a charge of assaulting a male individual with a piece of wood near his campsite in the river valley on or about July 28, 2012.

That information was eventually stayed as against the Complainant. In the transcript of proceedings before the Justice of the Peace, Cst Browne submitted that the male complainant had not been at his campsite for over two days, and returned to find the three accused sitting around a fire next to a tent. Everyone was intoxicated at the time. An argument ensued over who was entitled to the campsite and Mr. Bos struck the complainant with a piece of wood. The complainant alleged that the Complainant and the female co-accused were also assaulting him.

The Justice of the Peace imposed a no alcohol bail condition on the Complainant. An endorsement of August 20, 2012 at the Case Management Office (CMO) indicated that her matter was adjourned for “mental health consideration”. [ 8 ] The Applicant requests all records relating to the alleged assault and the adjournment for “mental health consideration”.

III Argument A Applicant’s Position [ 9 ] The defence theory is that the Complainant concocted her story to exact revenge against the Applicant and to cover up her own conduct of breaking into his apartment to steal property. [ 10 ] The Applicant takes that position that there is evidence that the Complainant was heavily addicted to and was using drugs of the type that would affect her credibility and reliability, and possibly her memory and ability to perceive reality. Consumption of drugs may have influenced her behaviour at the material time.

As well, there is evidence she was involved in serious criminal activities. [ 11 ] The Applicant asserts that the records sought in relation to the first information are relevant to the Complainant’s claims in the Preliminary Inquiry that she did not use cocaine before 2014.

The records are also relevant to her unpredictable and violent behaviour while intoxicated. [ 12 ] The Applicant further submits that the records in relation to the second information are relevant to whether the Complainant suffered from a mental illness, and to the extreme violence used by her in attacking the complainant. [ 13 ] Finally, the Applicant submits that the Complainant’s relationship and criminal activities with her boyfriend are relevant to the charges against the Applicant.

B Crown and Edmonton Police Service [ 14 ] The Crown and Edmonton Police Service rely on their arguments as outlined in the first two Mills decisions. They take the position that the Applicant has not established that the records are likely relevant. V Legal Framework [ 15 ] I have outlined the law in relation to Mills applications in the two prior decisions. The Court must first determine whether the records sought are likely relevant to an issue at trial, or to the competence of a witness to testify, and production is necessary in the interests of justice.

The Applicant bears the onus to establish likely relevance; speculative assertions and stereotypical assumptions do not suffice.

[16] 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. [17]

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. [18] 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. [19] 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 [20] There is no doubt that the credibility and reliability of the Complainant, and her narrative, are issues in the trial.

Someevidence has been put before the Court to the effect that she was using drugs around the time of the incident. [21] The first information relates to an alleged domestic assault by the Complainant. The officer at the bail hearing on December26, 2011 submitted that the Complainant was intoxicated at the time, and that previous altercations had occurred between the two withrespect to which the Complainant was the alleged victim. Defence counsel points to the statement by the officer: “alcohol and crackcocaine use in the relationship, but, on this date, only alcohol involved.

No mental illness...” No basis was provided for the officer’ssuggestion that there was crack cocaine use in the relationship, nor was there any indication of which individual was using it or duringwhat time period.

The charges against the Applicant arose from an incident in June 2014, two and a half years after this bail hearing. [22] With respect to the second information, the officer at the bail hearing before the Justice of the Peace alleged that Richard Boshad attacked the complainant with a piece of wood in what appears to have been a dispute between homeless individuals over a camplocation in the river valley, and that the Complainant also assaulted the complainant.

The charge was stayed as against the Complainant.There is no suggestion that the assault charge had anything to do with the incident involving the Applicant two years later, and noinference can be drawn from the fact that the charge was laid, given that it was stayed. I previously ruled that the stayed assault chargeon the second information was not relevant. [23] The Applicant points to the adjournment of the matter at the CMO for “mental health consideration” on August 20, 2012.That is the third endorsement of fifteen or sixteen from July 28, 2012 to March 11, 2014, and the only one with such a note.

While I doconsider the reference to be ambiguous and not necessarily probative of anything, it is also reasonable to infer that whatever gave rise tothat consideration was no longer an issue on the thirteen subsequent occasions culminating in the stay three months before the incidentinvolving the Applicant. [24] Defence counsel submits that the records may be useful in showing that drugs may have influenced the Complainant’sbehaviour in the incident involving the Applicant.

Nothing in the material presented suggests that the Complainant was under theinfluence of drugs at the time of the offences alleged against her two years or more prior to the incident involving the Applicant. [25] There is evidence before the Court at trial that the Complainant was combative, biting the Applicant and struggled with him.Indeed, the Complainant testified to this effect during the Preliminary Inquiry.

The fact that she may have reacted similarly in a domesticaltercation two and a half years earlier is really probative of nothing at issue in this trial. [26] Defence counsel also suggests that there is evidence that the Complainant was involved in serious criminal activities.Although there is no doubt that domestic violence is a serious societal problem, there is no suggestion that the Complainant was in adomestic, or any, relationship with the Applicant.

The assault charge against her is probative of nothing, as it was stayed. [27] Finally, defence counsel points to evidence of Cst Kerr that the Complainant told him on June 16, 2014 that when she was inthe Applicant’s building, she was waiting for her boyfriend, Richard Bos. Defence asks the Court to infer that she contacted Richard Boswhile in custody on June 4, 2015 prior to the Preliminary Inquiry during which she blamed the other party to the call for getting her introuble by abandoning her on the street.

Defence theorizes that the Complainant broke into the Applicant’s apartment for reasonsincluding stealing things in order to finance the supply of crack cocaine to which she and Bos were addicted and that Bos was involved inthe break in. [28] Defence has not established that any of the records sought would be relevant to this theory.

Nothing in the material relates toany allegation that the Complainant and Bos broke into a residence to steal drugs on a prior occasion. [29] Counsel suggests that the evidence that may be contained in the records sought might corroborate the defence theory that theComplainant was addicted to crack cocaine and likely either under its influence, or withdrawing from it, at the time of the incident givingrise to the allegations against the Applicant, at the time of her KGB statement, and around the time of the preliminary inquiry. [30] In my view, this is pure speculation.

Cst Buchanan did suggest “alcohol and crack cocaine use in the relationship”, but stated

that only alcohol was involved in the incident of November 26, 2011. She did not indicate who may have been involved in the use ofcrack cocaine, nor the source of that information, but the Complainant did acknowledge at that time that she had an alcohol addiction andrequested that her bail conditions include an abstinence provision and treatment. There is no other suggestion in that record of possiblecrack cocaine use by the Complainant. [31] The mere assertion that a record is relevant to credibility is not enough.

The Applicant must point to some "case specificevidence or information" to justify that assertion; he must be able to point to something in the record adduced on the motion suggestingthat the records contain information which is not already available to the defence or has potential impeachment value: R v WB (2000), (ON CA), 145 CCC (3d) 449, [2000] OJ No 2184 at para 75 (CA). [32] I conclude that the Applicant has pointed to no case specific evidence or information suggesting that the records sought willbe relevant for the purposes proposed by the Applicant. [33] The Court must balance the accused's right to make full answer and defence, and the right to privacy, personal security andequality of the complainant and any other person to whom the record relates.

The Applicant has not established that the records arenecessary to make full answer and defence, nor has he established that the records have any probative value or that the integrity of thetrial process would be undermined if production is not ordered. [34] In my view, any production of the records in question would be based on a discriminatory belief or bias, specifically that acomplainant 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 wouldbe contrary to society’s interest in encouraging the reporting of sexual offences, particularly by some of the most vulnerable members ofsociety, namely homeless women. VII Conclusion [35] The Applicant has not established that the records sought by him pass the threshold test of likely relevance. [36] The application is dismissed. Heard on the 2nd day of December, 2016. Dated at the City of Edmonton, Alberta this 5th day of December, 2016. Eric F. Macklin J.C.Q.B.A. Appearances: Thomas Engel for the Applicant Patricia Innes, QC for the Crown Katrina Haymond for the Chief of the Edmonton Police Service