R. v. Darling, 2017 BCSC 2110

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Darling, 2017 BCSC 2110 Date: 20170906 Docket: 36905-2 Registry: Port Alberni Regina v. Larry Sinclair Darling Before: The Honourable Mr. Justice Thompson Oral Reasons for Ruling on Disclosure of Crown Counsel’s Notes Counsel for the Crown: G. BainesCounsel for the Accused: K. McCullough B. LynskeyPlace and Date of Hearing: Nanaimo, B.C. September 6, 2017Place and Date of Ruling: Nanaimo, B.C.

September 6, 2017 [1] THE COURT: We are three weeks into a voir dire regarding the admissibility of statements of the accused taken by thepolice shortly after his arrest on 11 September 2015. In the midst of his counsel's cross-examination of a witness, the accused applies fordisclosure of the notes or other recordings in the possession of the Crown in relation to Crown counsel's interviews of this witness. [2] One of the issues on the voir dire is voluntariness.

It has become apparent from hearing the cross-examination of the Crownwitnesses that the accused intends to argue, inter alia, that the statements were taken in an atmosphere of oppression and that the accusedmight have been suffering the effects of this atmosphere of oppression — for instance, as a consequence of alleged circumstances thatmade the accused reluctant to eat or because of restrictions imposed on his mobility by undercover operators in the week leading up tohis arrest. [3] The Crown has called Cinthia Robanske, the former common law spouse of the accused.

She has given evidence relevant to thevoluntariness issue. She has testified that she and the accused lived together for over three years and their relationship ended in the firsthalf of 2015. She has testified to how the accused reacts to stress, including his tendency not to eat when under stress. She has alsodescribed his eating habits more generally. Her evidence is that with the exception of one event involving his kidneys that required ashort emergency hospital stay he was, over the course of their relationship, generally a healthy man both physically and mentally.

Herfurther evidence is that she met with him for approximately 20 minutes the day before his arrest and that he was in good spirits andseemed to be in good health. As I mentioned earlier, we are in the midst of the cross-examination of Ms. Robanske and much of thisevidence has yet to be tested by cross-examination. [4] Ms. Robanske testified that she was interviewed at considerable length by investigators on the day of the accused's arrest. Thatpolice interview evidently focused on subjects other than those she was questioned about by Crown counsel on this voir dire.Ms.

Robanske testified that she does not recall speaking to the police since that 11 September 2015 meeting, but she has spoken toMr. Baines — who has carriage of the file and appears for the Crown on this voir dire — on several occasions in 2017. Mr. Bainesdelivered a will-say statement to counsel for the accused on 22 August 2017 (i.e., in the midst of this voir dire). [5] An additional will-say was delivered this morning by Crown counsel, and it provided the dates of his two telephoneconferences (16 June 2017 and 18 August 2017) and one in-person meeting (26 August 2017) with Ms. Robanske.

In the course of hissubmissions, Mr. Baines advised that the purpose of all three meetings was trial preparation; he says that new information wasdiscovered in the course of his trial preparation and that this invariably or almost invariably occurs when he interviews witnesses, andthis new information was disclosed in the 22 August 2017 will-say statement. Mr. Baines also indicated that the state of his notes aresuch that they will be of little use to the Court without him giving evidence. I will return to the prospect of Mr.

Baines giving evidence ina few moments. [6] The starting point in terms of Crown disclosure is that it must disclose all information, inculpatory or exculpatory, exceptevidence that is beyond its control, or clearly irrelevant, or privileged: R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727. Thereis no issue in this case about the material being beyond the Crown's control or as to relevance. The issue is privilege — the Crownasserts privilege on the basis that notes of counsel's witness interviews are work product.

If the material is covered by work productprivilege, this type of privilege is not absolute and may be overridden if the ability of the accused to make full answer and defence iscompromised: R. v. Mullin, 2011 ONSC 6251.

[7] The onus of establishing this privilege is on the Crown: R. v. McKinnon, 2014 BCSC 245 at para. 21. The important question inthe case of witness interview notes is the purpose of the witness interview. If the purpose is investigative, the notes should be produced.If the notes arise from a process of trial preparation, they are privileged and need not be produced. See, for instance, R. v.

Regan (1997), (NS SC), 174 N.S.R. (2d) 72. [8] If the Crown's witness interview notes are not caught by work product privilege, there is authority that producing a will-saystatement that summarizes different or new information gathered as a result of the Crown interviews may, depending on thecircumstances, be sufficient production. If there is an issue arising out of the production of the will-say statement, the court may perusethe notes and compare them to the will-say statement: see R. v. Johal, [1995] B.C.J. No. 1271.

In some cases, having the Court assessthe will-say statements for completeness may not be practical. R. v. Malik, 2003 BCSC 1709, is an example of such a case. [9] There is no bright line that allows one to distinguish between counsel engaging in investigation and counsel conducting trialpreparation, and the present case is complicated by what I find to be multiple purposes for the 18 August 2017 interview. I conclude thatthe 18 August 2017 interview had, as one important purpose, the investigation of what Ms.

Robanske's evidence would be on mattersgoing to voluntariness — subjects that were not canvassed during the 11 September 2015 police interview. I conclude, therefore, that thenotes of Crown counsel made during or immediately after his 18 August 2017 meeting — in relation to subjects other than thosecanvassed in the 11 September 2015 police statement — are not caught by work product privilege. [10] The accused's position is that I ought to review the notes. I am not persuaded at this juncture that this is necessary or advisable.Mr.

Baines tells us that his notes will be indecipherable without him giving evidence about them, and their disclosure may well lead tothe dangers adverted to by Mr. Justice Braidwood, then a judge of this Court, in Johal at paras. 7-8: I foresee a danger of the notes being shorthand or abbreviated comments that are intended simply to trigger counsel's memory as to whathe was told, rather than be a complete rendition of the statements of the witness. Some of the comments of the notes may well beheadings and in no sense intended to be a complete statement on the subject matter.

Where that appears, there is the obvious potential abuse that the cross-examiner could well suggest to the witness, in the presence of thejury, … I pause to acknowledge, of course, that the jury is not present during this voir dire. … that the statement that he is now making under oath to the Court was recently fabricated when compared to the notes taken bycounsel. [11] In Johal, the Court ordered that the Crown could elect to produce a will-say statement in substitution for Crown counsel's notes,limited to different or new information disclosed to counsel during the interview of the witness.

Braidwood J. went on to say that if thereis an issue arising out of the above, the Court would peruse the Crown notes to compare to the will-say statement. The judge wasattempting to balance interests, including avoiding the prospect of Crown counsel giving evidence, albeit clearly recognizing that thedisclosure duty was “overriding”.

I, too, am concerned about the prospect of Crown counsel giving evidence and the prospect of Crowncounsel's notes, which he says were produced for the purpose of triggering his memory and for the purpose of allowing him to lead thiswitness' evidence, being used in a fashion that might distort the fact-finding process. [12] At this stage in the case, I am not persuaded that the Crown is required to do any more than it has already done to comply withits duty of disclosure with reference to the interviews of Ms. Robanske.

While I have rejected the Crown’s claim of work productprivilege in relation to part of the 18 August 2017 interview, the two will-say statements provided amount, in my estimation, tocompliance with the required disclosure. I am satisfied that denying the application for disclosure of the actual notes, and resisting thesuggestion that I review these notes, will not impair the accused's right to make full answer and defence. “Thompson J.”