R v Brown, 2017 ABQB 708

Court of Queen’s Bench of Alberta Citation: R v Brown, 2017 ABQB 708 Date: 20171120 Docket: 160862330Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Timothy Anthony Brown Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. Initials have been used so that this decision may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R.

Burrows _______________________________________________________ [ 1 ] Timothy Anthony Brown seeks an order requiring the Crown to disclose materials relating to the assignment of an EPS officer, Detective Raposo, who was subpoenaed as a witness at his trial, to an Alberta Serious Incident Response Team investigation during the trial. That assignment, he alleges, contributed to the trial not being completed in the time originally scheduled and to the need

to adjourn completion of the trial for 41 days. This was part of what he submits was the unreasonable delay of his trial which violated his Charter s. 11(

b) rights. He seeks the disclosure because, he submits, the materials sought would be relevant to the demonstration of the Crown’s complacency in this matter, which, he submits contributes to the delay of this trial having been unreasonable. The Trial [ 2 ] Mr. Brown’s judge alone trial began on Tuesday, September 5, 2017. I understand that Detective Raposo was subpoenaed to attend as a witness for the Crown on Tuesday, September 5. She attended in response to the subpoena. [ 3 ] Only the complainant, SC, testified on the first day of the trial, September 5. Her evidence in chief was not completed that day.

It continued on September 6 and was completed mid-afternoon. After a brief adjournment, the Crown advised that SC was not able to continue testifying that afternoon. Court was adjourned to Thursday, September 7. Detective Raposo had not testified. [ 4 ] When court opened on Thursday, September 7, 2017, Ms. Godfrey advised: Detective Raposo, who was involved in this matter, has been here actually for two days. I got an e-mail or a text last night that she’s presently with ASIRT and got called to St.

Paul on a shooting, so she won’t be here today, but we can have her here for tomorrow morning. [ 5 ] SC was called to the witness stand for cross-examination. Ms. Konye advised that she had no questions for SC. There was only one other Crown witness available to testify that day. After his testimony I heard argument on a voir dire issue. There were no other Crown witnesses available to be heard that day. Court adjourned shortly after noon on September 7. [ 6 ] Prior to adjournment on September 7, Ms.

Konye raised the possibility that the accused might agree to the evidence the Crown sought from Detective Raposo being put in by consent. After a brief adjournment, Ms. Godfrey advised that she preferred to have Detective Raposo testify in person. [ 7 ] On the morning of Friday, September 8 after I made a ruling in a voir dire , the Crown presented two further witnesses. Their testimony was complete by 10:45 a.m. [ 8 ] During the course of the morning, Ms. Godfrey advised: The officer – or Detective Raposo e-mailed last night, Sir. I told you she was involved in this matter in St. Paul.

She had to attend an autopsy this morning at 9 o’clock. She couldn’t come until this afternoon. [ 9 ] Detective Raposo testified on the afternoon of September 8. Her testimony, including cross-examination, occupied 33 minutes. [ 10 ] After Detective Raposo testified, I heard counsel’s submissions with regard to the Crown’s application to require the accused to expose his arms and neck to the court’s view. There was evidence that the perpetrator of the offences had tattoos on his arms and neck. There had been substantial submissions made on the application the previous day but they were interrupted when Ms.

Godfrey applied to adjourn the application until after Detective Raposo’s evidence had been heard. [ 11 ] The September 8 submissions on the Crown’s application were not finished because I concluded that I needed counsel to determine whether there were any authorities relevant to the issue on the application. I adjourned the application for written submissions which I directed Ms. Godfrey to file by September 23 and Ms. Konye to file by September 29. [ 12 ] After discussion as to the availability of the Court and counsel, I adjourned the continuation of the trial to October 18, 2017.

In the end, the Crown abandoned its “arms and neck exposure” application. [ 13 ] On October 17, 2017, Ms. Konye filed the disclosure application that is the subject of this decision. [ 14 ] On October 18, the Crown formally closed its case. The Defence called no evidence. I heard submissions on the trial issues and adjourned to November 17 for decision. [ 15 ] On November 17, 2017, I found Timothy Anthony Brown guilty of five offences. I did not enter convictions because there is an outstanding Jordan application. I heard argument in respect of this disclosure application. [ 16 ] Mr. Brown’s Charter s. 11(

b) application is scheduled to be heard January 16, 2018. For how it came about that it is being heard after Mr. Brown was found guilty, see my Reasons for Judgement at 2017 ABQB 702 . The materials sought [ 17 ] The materials which Mr. Brown seeks to have the Crown disclose are described in the Application as follows: - All correspondence, or a

summary of any discussions held, between Crown’s office (whether that be with [Ms. Godfrey] or other members of the Crown’s office) and ASIRT regarding the scheduling of Cst. Raposo’s testimony during the R v. Brown trial, including discussions, if any, regarding the appropriateness of her being called away to the ASIRT investigation which occurred during the R v. Brown trial; - All correspondence, or a

summary of any discussions held, between Cst. Raposo and ASIRT regarding her being tasked away during the R v. Brown trial, while under subpoena. - All correspondence, or [a]

summary of any discussions held, between the Crown’s officer (whether that be with [Ms. Godfrey], or other members of the Crown’s office) and Cst. Raposo regarding the scheduling of her testimony, including discussions, if any,

regarding the appropriateness of her being called away to the ASIRT investigation which occurred during the R v. Brown trial. Relevance of the materials sought [18] Mr. Brown’s position as to the relevance of the materials sought was stated in the Application as follows: In light of what our Supreme Court has said in Jordan, we need to be mindful of the “culture of complacency”. The fact that an officer,while under Subpoena, was tasked away such that a Queen’s Bench trial had to be adjourned is troubling to say the least.

It is submittedthat this information will be necessary in order for the Court to determine the seriousness of the breach. The Crown’s position [19] The Crown submits that the materials sought are not relevant to Mr. Brown’s Charter s. 11(

b) application. Further, theCrown submits that at least some of the materials sought, if they exist, are third party records and that notice of the application ought tohave been given to those third parties: the EPS and ASIRT. Decision [20] In R v. Jordan 2016 SCC 27 , [2016] 1 S.C.R. 631, the majority observed that the analytical framework whichgoverned Charter s. 11(

b) before Jordan, fostered a culture of complacency towards delay in the criminal justice system (para. 4, 29).The Court established a new analytical framework for Charter s. 11(

b) applications which it intended to respond to and hopefullyeliminate the culture of complacency. [21] The new analytical framework established in Jordan, however, does not require or even contemplate that the events in thecriminal prosecution in question be assessed to determine whether or not the Crown has been complacent in the conduct of the specificprosecution.

Indeed, in my view, the new framework contemplates just the opposite. [22] I cannot see that Crown complacency could even arguably be relevant in the Jordan framework where the presumptive timeceiling has been exceeded. [23] In the Jordan framework, where the delay from charge to trial is less than the presumptive time ceiling, the applicant accusedmust establish (1) that he took meaningful steps to expedite the proceedings and (2) that the case took markedly longer than it reasonablyshould have. (para. 82). [24] In the context of the second of these two matters, the Supreme Court observed: (para. 91) Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation.

Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step wasreasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. All this said, thisdetermination is a question of fact falling well within the expertise of the trial judge . . . [25] In my view, the question to which Mr.

Brown says the materials sought in this disclosure application is relevant – whether theCrown’s approach to this prosecution demonstrates complacency calls for a parsing of each segment of the time between charge and trial(as is perhaps demonstrated by the first 16 paragraphs of these Reasons). It would involve close examination of the minutiae and wouldbe inimical to stepping back and adopting a bird’s-eye view of the case, as recommended by the majority in Jordan. [26] On that basis, I conclude that the materials sought are not relevant to Mr. Brown’s Charter s. 11(

b) application. I dismiss thedisclosure application. Heard on the 17th day of November, 2017. Dated at the City of Edmonton, Alberta this 20th day of November, 2017. B.R. Burrows J.C.Q.B.A.

Appearances: Carol Godfrey for the Crown Anna Konye for the Accused