R. v. McCartie Date:, 2013 BCPC 289

Citation: R. v. McCartie Date: 20131009 2013 BCPC 0289 File No: 1091:74283-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COLIN McCARTIE and ANNE McCARTIE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: R.L. Gibson and M. Down Appearing on their own behalf: Colin McCartie and Anne McCartie Place of Hearing: Nanaimo , B.C. Date of Hearing: October 1 and 2, 2013

Date of Judgment: October 9, 2013 [1] In this case, I am presented with the challenge of devising a process which will appropriately balance two competingobjectives: (

i) the Crown’s interest in protecting the anonymity of a confidential informer; and (ii) the right of Mr. & Ms. McCartie,guaranteed by

section 11(

d) of the Canadian Charter of Rights & Freedoms, to a fair trial. Ms. Down submits that the answer is simpleand uncontroversial. She says that informer privilege trumps the Charter, and that an unfair trial is simply a price which must be paid,by Mr. & Ms. McCartie, to protect informer anonymity. I think that a more balanced approach to the problem is required. Mr. & Ms.McCartie, who are not represented by counsel, have found it difficult to participate in the discussion of the issue. Background [2] Mr. and Ms.

McCartie are charged with a number of counts of false reporting, and one count each of tax evasion, under section239 of the Income Tax Act. Mr. McCartie is also charged with one count of tax evasion under

section 327 of the Excise Tax Act. [3] Mr. & Ms. McCartie tell me that they are unable to afford counsel, and that they have been refused Legal Aid. They areintelligent, articulate, well-educated people, but have no legal training. As a result, the complex procedural issues now under discussionare difficult for them to understand. [4] Relying on R vs Jarvis 2002 SCC 73 , [2002] 3 SCR 757, Mr. & Ms.

McCartie seek to exclude certain evidence whichthe Crown proposes to tender, on the ground that the evidence was obtained from them by compelled disclosure under the statutory auditpowers of the Canada Revenue Agency (“CRA”) at a time when the predominant purpose of CRA’s enquiries was to obtain evidence foruse in a criminal prosecution. [5] This case has an extensive procedural history: R vs McCartie 2012 BCSC 928; R vs McCartie 2012 BCPC 510; R vsMcCartie 2013 BCPC 150; R vs McCartie 2013 BCPC 174; R vs McCartie 2013 BCPC 221; R vs McCartie 2013 BCSC 1805.

The lastof those judgments directs me to conduct a hearing, portions of which will necessarily be conducted in camera, to determine the date onwhich the predominant purpose of CRA’s enquiries, in relation to Mr. & Ms. McCartie, changed from a civil audit to a criminalinvestigation. In these reasons, I will refer to that date as “the Key Date”. [6] Parts of the hearing must be held in camera because some of the evidence bearing on the issue is likely to provide informationwhich could be used to ascertain the identity of a confidential informer who provided a tip to CRA in relation to Mr. & Ms. McCartie.

An example of the problem is provided by the following

summary of the evidence of Mr. Gill, who has already given evidence. [7] Mr. Gill was the supervisor of a CRA audit team. The team conducted a series of audits of Mr. & Ms. McCartie’s tax returnsduring the period 2002 – 2007. In his evidence, Mr. Gill identified a document, being a print of a computer screen, which was preparedby his audit team and printed on February 11, 2008.

On the second page of the document appears the imprint of a rubber ink-stampbearing the following words: ADDITIONAL INFORMATIONSEE INVESTIGATIONSDO NOT PLACE SCREEN 1 IN TAX PAYERS FILE “Investigations” is the name of a CRA department whose sole function is the conduct of criminal investigations. I have heard noevidence to indicate when the rubber stamp was imprinted on the page. It may or may not have been so on February 11, 2008. Mr. &Ms. McCartie asked Mr. Gill no questions about the imprint when they cross-examined him.

That surprised me because it appears atleast likely that the stamp was applied after the Key Date. After the conclusion of Mr. Gill’s examination by the parties, I asked Mr.Gill about the imprint. He told me that the rubber stamp is kept in the offices of the Investigations Department, and is used by thatdepartment. I then put the following question and received the following partial answer: Q And tell me if I’m guessing correctly. When a file is referred to the Investigations Department, they would put this stamp on it toalert people that they were doing an investigation? A No, no.

What happens here is Investigations may have received information -- At that point, Ms. Down rose to object on the ground that Mr. Gill’s answer might reveal the date on which CRA received the informertip, and so, perhaps, assist Mr. & Ms. McCartie to identify the informer. A long discussion of that subject ensued. During the course ofthat discussion, I asked Ms. McCartie why she had not asked any questions about the imprint of the rubber stamp.

The following areextracts from her response to that enquiry: The reason we didn’t ask questions about the rubber stamp is because we’ve dealt with that ... on disclosure with the Crown. We sawthe rubber stamp; we asked them what it was ... they said it was in relation to the informer tip. Then we went into the whole debateon ... informer privilege ... and then [Judge] MacCarthy ruled. So ... I had a full understanding of stamp ... as being related toinformer privilege and it was an area that I couldn’t touch. * * * We understood that we were bound by that decision by [Judge] MacCarthy ....

[8] I pause to observe that Crown counsel are not empowered to decide what questions Mr. & Ms. McCartie may or may not ask,and that Crown counsel should not advise Mr. & Ms. McCartie about such matters. Mr. & Ms. McCartie should feel free to ask anyquestion they wish. If Crown counsel do not wish a question to be answered, they will object to the question, and I will then decidewhether it should be answered. [9] I was, and am, troubled by the sequence of events described in paragraph 7.

It seems to me that the date on which the rubberstamp was placed on the document might shed light on the Key Date, and that questions should be asked about that. However, I ambound by, and thoroughly respect, the ruling of The Honourable Judge MacCarthy, to the effect that no information may be disclosed toMr. & Ms. McCartie which might risk disclosure of the identity of the confidential informer: R vs McCartie 2013 BCPC 174. [10] The sequence of events described in paragraph 7 occurred relatively early in the trial. I think, and Mr.

Gibson agrees, that it isreasonable to expect that similar difficulties will arise in relation to other documents and other questions likely to be put to Mr. Gill andother witnesses. [11] After the events summarized in paragraph 7, I adjourned the trial and directed that the Key Date be determined by anotherjudge: R vs McCartie 2013 BCPC 221. On September 24, 2013, the Honourable Mr.

Justice MacKenzie of the Supreme Court ofBritish Columbia held that I erred in so doing, and directed me to resume conduct of the trial and to determine the Key Date: R vsMcCartie 2013 BCSC 1805. [12] At paragraph 16 of his reasons for judgment, Justice MacKenzie said that I should conduct the hearing in any manner I see fit. Ihave found no guidance in the authorities as to the process which I am to follow in conducting an in camera hearing. For that reason, Iasked Crown counsel and Mr. & Ms. McCartie to consider the following questions: a.

Is the in camera portion of the hearing to be an inquisitorial or an adversarial process? b. If it is to be adversarial, how are Mr. & Ms. McCartie’s interests to be represented? c. Should an amicus curiae be appointed? d. If so, how should the role of amicus be defined? e. If amicus is to be appointed, who should nominate the individual to fill that role? f. What document disclosure should be made by the Crown to amicus or to the court? g. Because parts of the proceeding are to be held in camera, should CRA be required to disclose to amicus or to the court: (

i) thedocuments which have already been disclosed to Mr. & Ms. McCarty; and (ii) other documents which would otherwise be subject toinformer privilege? h. Who bears the onus of proof of the Key Date? The Crown’s Submissions [13] Mr. Gibson and Ms. Down replied to my questions as follows: a. I have no jurisdiction to conduct an inquisitorial hearing. The hearing must be adversarial: R vs Corbett 2009 ABQB 619; R vsLahouri 2013 ONSC 2085. b. Mr. & Ms. McCartie may be present throughout the hearing except where questions arise which pose a risk of disclosure of theidentity of the confidential informer.

They must not be present during that part of the hearing. c. No amicus curiae should be appointed because: (

i) Information which might disclose the identity of the confidential informer may not be disclosed to an amicus (Named Person vsVancouver Sun 2007 SCC 43 , [2007] 3 SCR 253); (ii) Amici curiae are not to be appointed to act as advocate for a party, but rather as impartial officers of the court: Ontario vsCriminal Lawyers’ Association of Ontario 2013 SCC 43. It is unnecessary to appoint counsel for that role because it is already filled bythe trial judge. d. I have no jurisdiction to order disclosure of Crown documents to me, or to counsel appointed by the court.

Even if I have suchjurisdiction, I should not exercise it because, in this case, as in most cases, the Crown disclosure includes many documents which are notadmissible and which a trial judge should not see. e. Mr. & Ms. McCartie bear the onus on their application to exclude Crown evidence on the principles stated in Jarvis: R vs White (SCC), [1999] 2 SCR 417 Analysis [14] Mr. Gibson and Ms. Down submit that I should now rule on Ms. Down’s objection to the question which I put to Mr. Gill(paragraph 7, above). Were I to do so, I would be obliged to rule on the basis of an unsupported and untested assertion by Ms.

Down thatan answer to my question would place at risk the anonymity of the Crown’s informer. That would be clearly inappropriate. Unlesscompelled by some necessity, the court should not make a ruling on the basis of an unsupported and untested assertion by anyone. It isof the essence of a fair adjudicative process, inquisitorial or adversarial, that any contentious assertion must be subject to contradictionand challenge. In this case, that could only be done by putting challenging questions to either or both of Mr. Gill and Ms. Down, in an

attempt to assess the validity of Ms. Down’s assertion that an answer to my question might place the anonymity of the informer at risk. The obligation to make such enquiries, and to reach a conclusion as to what information may be publicly disclosed without placing injeopardy the identity of the informer, is placed squarely on my shoulders by the judgment of Justice Bastarache in Named Person @paragraph 55. [15] Mr. Gibson and Ms. Down submit that: a. Mr. & Ms. McCartie must not be permitted to ask those questions because the answers to those questions are likely to disclose theidentity of the informer.

As a result, they should be excluded from the courtroom when the questions are asked. b. I must not ask those questions because of the following admonition, articulated by Justice Campbell in Lahouri @ paragraph 8: The right of a trial judge to question any witness does not entitle a trial judge to cross-examine witnesses. Accordingly, a trial judgeshould not, even temporarily, abandon his or her position of neutrality and become the cross-examiner ... c.

An amicus must not ask those questions because it is not the proper function of amici curiae to perform tasks normally performed bydefence counsel: Ontario vs Criminal Lawyers’ Association of Ontario @ paragraphs 49 – 56. Specifically, amici curiae may not beretained to assist the judge to do indirectly something which the judge could not do directly: Ontario vs Criminal Lawyers’ Associationof Ontario @ paragraph 54. [16] Obviously, neither Mr. Gibson nor Ms. Down will ask the sort of probing questions which should be asked to determine thevalidity of Ms. Down’s objection.

If I were to accept the submissions of Mr. Gibson and Mr. Down, there would be no one in thecourtroom with the right to ask those questions. In short, Mr. Gibson and Ms. Down demand an adversarial process without anadversary. [17] To make matters worse, Mr. Gibson and Ms. Down submit that Mr. & Ms. McCartie bear the onus of proof on an issue inrespect of which all of the material witnesses are Crown employees and all of the material documents are Crown documents. Theysubmit that Mr. & Ms.

McCartie should be called upon to discharge that onus at a hearing from which they are to be excluded duringmaterial portions of the most important evidence. [18]

Section 11(

d) of the Charter confers on Mr. & Ms. McCartie a right to a fair trial. That right includes the right to make fullanswer and defence: R vs Mills (SCC), [1999] 3 SCR 668 @ paragraphs 69 – 76. In order to make full answer anddefence to the charges which they face, Mr. & Ms. McCartie must have a fair opportunity to present their case for exclusion of evidencecompelled from them after the Key Date. In order to do that, the Key Date must be judicially determined, on the evidence, after a fairhearing of the evidence relevant to that determination.

An adversarial hearing in which no one is entitled to cross-examine the Crownwitnesses is not a fair hearing. An adversarial hearing in which one party, who may bear the onus of proof, is excluded from thecourtroom while the other party’s employees, who are in exclusive possession of substantially all of the material evidence, present thatevidence would be an extremely unfair hearing. [19] I could conduct an inquisitorial hearing, during which I would prepare for and conduct the requisite cross-examinations myself.

In order to prepare for and conduct a competent cross-examination, I would find it necessary to review all of the Crown’s documentarydisclosure. I accept Mr. Gibson’s observation that the Crown disclosure contains many documents which I should not see. [20] I could appoint counsel to prepare for and conduct the necessary cross-examinations. [21] Mr. Gibson correctly points out that an amicus curiae could not do so, because of the way in which the role and duties of amicicuriae were defined in Ontario vs Criminal Lawyers’ Association of Ontario.

State-funded counsel on the model of R vs Rowbotham(1988) (ON CA), 41 CCC (3d) 1 would not meet the needs of the case because any counsel appointed to conduct thecross-examinations required in this case would be unable to discuss the in camera proceedings with Mr. & Ms. McCartie.

Such aconstraint would be incompatible with a solicitor-client relationship. [22] Exercising the implied jurisdiction discussed by the Ontario Court of Appeal in R vs Imona-Russel 2011 ONCA 303 ,2011ONCA 303 @ paragraphs 37 – 43, I might appoint a different kind of counsel (not recognized in any of the previous authorities) toconduct the cross-examinations. Although Imona-Russel was reversed in Ontario vs Criminal Lawyers’ Association of Ontario, I do notfind in the majority judgment of Justice Karakatsanis any criticism of the analysis in paragraphs 37 – 43 of Imona-Russel.

I observe that,at paragraph 62 of Ontario vs Criminal Lawyers’ Association of Ontario, Justice Karakatsanis referred to “the exercise of ... inherentor implied jurisdiction ...” (underlining added), which provides some support for the view that she agreed with that portion of the reasonsof the Ontario Court of Appeal. [23] Mr. Gibson and Ms.

Down submit that such a counsel could not participate in the in camera portion of the hearing because ofthe following statement, which appears in Named Person @ paragraph 63: ... the decision to reveal to the amicus detailed facts about the Named Person was inconsistent with the extradition judge’s obligation toprotect the information which was covered by informer privilege ... I take it that, in the opinion of Justice Bastarache, while a judge might be entrusted with such information, amici curiae should not.

Inthis case, it is likely that, during the course of the in camera proceedings, information may come out which may identify, or assist inidentifying, the confidential informer. I am in duty bound to follow the directions of the Supreme Court of Canada, and so feel unable toappoint counsel to conduct the requisite cross-examinations. [24] I could conclude that a trial in the fashion proposed by Mr. Gibson and Ms. Down would provide sufficient fairness to Mr. &Ms. McCartie, having regard to the oft-stated principle that a fair trial is not necessarily a perfect trial. I am not attracted to that

conclusion because I believe that the process proposed by Mr. Gibson and Ms. Down would be grossly unfair. Further, in my view, such an approach is precluded by the judgment in Named Person . At paragraph 55, Justice Bastarache said that it is the duty of the trial judge to craft a procedure which accommodates other constitutional imperatives (of which the right to make full answer and defence is one) “... to as great an extent possible without risking a breach of the informer privilege ...” That is my task here.

Decision [ 25 ] In my opinion, the following is the appropriate procedure in this case, because it will fully protect the anonymity of the informer, while facilitating as fully as possible the right of Mr. & Ms. McCartie to a fair trial: a. Mr. & Ms. McCartie will be entitled to attend throughout the proceeding unless and until Crown counsel express a concern that information relevant to the identity of the confidential informer is about to be, or may be, revealed. If Crown counsel express such a concern, Mr. & Ms. McCartie will withdraw and the hearing will proceed in camera until the risk has passed .

I will decide when the risk has passed. b. For so long as Mr. & Ms. McCartie are present, I will conduct myself in accordance with the principles stated in Lahouri . c. When the proceedings are held in camera , I will ask questions of counsel and witnesses as I think appropriate. In some cases, I may think it appropriate to conduct a searching cross-examination of a witness, at least in so far as I am able. d. I will be handicapped in my examination of witnesses because I will not have access to the Crown’s documentary disclosure, and will have no client to instruct me.

For that reason, I will establish a process by which Mr. & Ms. McCartie can bring documents to my attention and offer suggestions as to areas of evidence which I ought to explore. I will hear submissions as to the design of that process when the case reconvenes. My present inclination is as follows. Crown counsel will conclude their examination of each witness before I ask any questions. I will then provide to the witness the usual caution against discussing the case with anyone until conclusion of cross- examination. The witness will then be excused, and Mr. & Ms.

McCartie will be invited to offer their suggestions for cross-examination in the presence of Crown counsel but in the absence of the witness. Mr. & Ms. McCartie will then be excused while confidential matters are explored with the witness. [ 26 ] I am not confident that the procedure outlined in paragraph 25 will result in a fair trial. I will not be in a position to assess that question until later in the trial.

If I conclude that the trial has not been fair, it will then be necessary to consider whether it should be allowed to proceed, despite its unfairness, or whether a judicial stay of proceedings should be ordered. It would be premature to consider that issue now. [ 27 ] If, as Mr. Gibson and Ms. Down assert, Mr. & Ms. McCartie carry the onus of proving the Key Date, the requisite standard of proof is on a balance of probabilities: R vs White. Issues which are to be decided on that standard rarely depend on who carries the onus.

As long as there is some relevant evidence, the court ought to be able to make a finding of fact on a balance of probabilities. For that reason, it may be that I will never be called upon to decide where the onus lies in this case. I think that I should refrain from deciding that question unless and until a decision becomes necessary. October 9, 2013 _____________________ T. Gouge, PCJ