R. v. Kotchea Date:, 2017 BCPC 350

Citation: R. v. Kotchea Date: 20171109 2017 BCPC 350 File No: 11895-2-KC Registry: Fort Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONAH WILLIAM KOTCHEA REASONS FOR JUDGMENT ON APPLICATION FOR JUDICIAL STAY OF PROCEEDINGS OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: P. Backhouse Counsel for the Defendant: R.C. Gibbs, Q.C. Place of Hearing: Fort Nelson , B.C. Date of Judgment: November 9, 2017 [ 1 ] This is on File Number 11895-KC-2, the matter of R. v. Kotchea . Introduction [ 2 ] Mr. Kotchea stands charged on Information 11895 with three counts of violence and three counts of breaching his bail

conditions arising from a July 4, 2016 incident in Fort Nelson, British Columbia. These allegations arise, in part, from the dissolution ofan intimate relationship between Mr. Kotchea and the complainant, Ms. Dennis. The Application [3] Defence counsel applied, on Day 3 of a scheduled five-day trial, for a judicial stay of proceedings on the basis that Mr.Kotchea's ability to make full answer and defence to the charges has been irreparably harmed due to the very late disclosure of aconsiderable amount of what counsel described as relevant information.

Defence counsel relies on the law as first settled by R. v.Stinchcombe, (SCC), [1991] 3 S.C.R. 326 and is applied to the subsequent cases. However, Defence counsel also askedthe Court to give consideration to the Supreme Court of Canada statements about complacency in the recent decisions of R. v. Jordan,[2016] SCC 27, and R. v. Cody, [2017] SCC 31.

Defence counsel acknowledges that the timelines of this case to the present date do notmeet the Jordan test, but it soon will if an adjournment is granted. [4] Crown counsel concedes that there has been an inadvertent delay in providing full disclosure of relevant materials, but contendsthat the appropriate remedy would be an adjournment to allow for proper preparation by both counsel in light of the recent disclosure. The Crown further submits that the Court should not invoke any strong consideration of the Jordan and Cody decisions because thetimelines have not yet been breached.

If an adjournment is granted, the Crown concedes that an application under Jordan and Codywould likely be an early order of business when the matter reconvenes. Case and Disclosure Timelines The Investigation [5] The allegations arose on July 4, 2016, in the early morning hours. An Information was sworn the same day. A subsequentnew Information was sworn on December 16th, 2016, with the Crown proceeding by Indictment. [6] On July 4, 2016, Mr. Kotchea was arrested in his home. Ms. Dennis was also present. Ms. Dennis exhibited some injuries.

An ambulance was called and she was taken to the Fort Nelson General Hospital where she was treated and released to attend her doctorthe next day. [7] Photographs were taken of Ms. Dennis at the scene by the Fort Nelson RCMP and at the hospital by either the Fort NelsonRCMP and/or a female nurse to document her injuries to her head, neck, face, shoulders, torso, arms and legs. Photographs of the scenewere taken by the Fort Nelson RCMP and by the Forensic Identification Unit who also conducted a more thorough investigation. On thesame day, July 4, 2016, Ms.

Dennis signed a consent to allow her medical records of that day from the Fort Nelson General Hospital tobe released to the RCMP. It was also on the same day, July 4, 2016 the Forensic Identification Unit concluded its investigation andturned over to the Fort Nelson RCMP a report and a DVD disk of scene photographs. Trial Scheduling [8] The matter was arraigned on January 23rd, 2017, and a trial estimate of five days was provided. Trials of that length are achallenge to

schedule in Fort Nelson due to its small population and geographic isolation. The Court normally sits in Fort Nelson for oneweek per month and during that week it must accommodate many criminal, family, and civil matters. A five-day trial cannot be easilyscheduled on an otherwise busy court week. Therefore, a special sitting by way of an assize is scheduled to deal with longer cases suchas this one. The scheduling of a special sitting or an assize is a complicated process involving communications among the judiciary,Court Services Branch, Sheriff Services, the Crown, and Defence counsel.

It often involves multiple electronic communications amongnumerous individuals and entities over an extended period of time. [9] In this case the trial was confirmed on February 1st, 2017, for the assize to run from November 6th to November 10th, 2017. There were two other cases also scheduled for the assize. Both of those cases had the same Defence counsel and the same Crowninvolved. Both were resolved by way of plea and sentencing during the first two days of the assize.

Early Disclosure [10] Defence counsel received some disclosure including some photographs and the Report to Crown Counsel relatively early on inthis matter. The RTCC made reference to further disclosure to come that Defence counsel submitted and it was not contested by theCrown that no further relevant or substantive disclosure was provided until after the trial commenced. The RTCC also referred to someadditional photographs having been taken of Ms. Dennis by a nurse at the Fort Nelson General Hospital.

Trial Week and Late Disclosure [11] On Monday, November 6th, 2017, the Court was occupied with other matters until this trial began at approximately 1:36 p.m.and Ms. Dennis was called to be the first Crown witness. A break in the evidence was taken at 2:17 p.m. The Crown disclosed toDefence counsel a DVD of photographs at 2:20 p.m. Ms. Dennis' direct evidence continued from 2:52 p.m. to approximately 3:00 p.m.with a couple of brief interruptions for other matters.

At 3:00 p.m., Defence counsel advised the Court of the late disclosure of the DVDdisk and requested an adjournment to November 7th in order to examine the contents of the DVD. That adjournment was granted. [12] On Tuesday, November 7th, 2017, the trial recommenced at approximately 10:15 a.m., the earlier portion of the morninghaving been used to conclude one of the other trial matters by way of plea and sentence. Defence counsel commenced cross-examinationand continued until 11:45 a.m. on a variety of topics, but not on the topic of what occurred at Mr. Kotchea's residence.

At 11:45 a.m.Defence counsel made several applications, including (

a) a request for a further adjournment to examine with his client the contents ofthe DVD which amounted to 321 photographs of the scene, (

b) a request for the Crown to seek further information from the RCMPregarding other possible photographs referred to in the RTCC but not disclosed, and (

c) a request for the Crown to determine whetherthere were medical records concerning Ms. Dennis' attendance at the Fort Nelson General Hospital. The adjournment was granted andthe Crown advised the Court that further disclosure would be sought as requested by Defence counsel.

[13] During the afternoon hours of November 7th, the Crown caused the following documents to be provided to Defence counsel: (a)321 hard copy photographs from the DVD disk, and (b) 75 pages of additional photographs, Fort Nelson General Hospital medicalrecords for Ms. Dennis, and the Forensic Investigation Unit's documents. [14] On the morning of November 8, 2017, Defence counsel advised the Court that the second package of materials received onNovember 7th included Ms. Dennis' signed consent to release information directly to the Fort Nelson General Hospital and dated July 4,2016.

In addition, there was a letter in that package from Northern Health Authority attaching Ms. Dennis' records of her attendance atthe Fort Nelson General Hospital on July 4, 2016. That letter was dated November 7th, 2017. [15] Defence counsel noted the medical records referred to three possible medical personnel who may have dealt with Ms. Dennisand that several of the many pages disclosed were unintelligible. The second package also contained the Forensic Identification Unitreport of 19 pages which referred to the DVD disk as being provided to the Fort Nelson RCMP on July 4, 2016.

That report also referredto some testing for the presence of blood at the scene, but there was no further reference to that issue in any other disclosure. The secondpackage also contained a further 45 photographs of Ms. Dennis taken by the Fort Nelson RCMP and perhaps a nurse at the scene or atthe Fort Nelson General Hospital. Of those 45 photographs, only nine had been previously disclosed. In all, Defence counsel pointed toclose to 400 pages of documents, photos, and medical records disclosed well after the cross-examination of Ms.

Dennis had commenced. [16] On Wednesday, November 9th, at about 11:30 a.m. the Crown advised the Court that some further disclosure of Ms. Dennis'medical records of an undetermined number of pages had just arrived and was being provided to Defence counsel. These recordsapparently referred to Ms. Dennis' attendance at her doctor the day following the incident.

Submissions Defence [17] Defence counsel submits that the nature, timing, and volume of the late disclosure such that it has caused prejudice to Mr.Kotchea's case and irreparable harm to his ability to make full answer and defence, and as such, it falls within the clearest of cases and ajudicial stay of proceedings must be granted. Defence counsel pointed out that an adjournment of the matter from this week wouldprobably require the scheduling of another special sitting some considerable time in the future when the tests enunciated in Jordan andCody would be front and centre.

Defence counsel, while acknowledging Jordan does not strictly apply yet, urged the Court to paycareful heed to the Supreme Court of Canada statements about complacency of any of the judicial stakeholders which Defence counselsuggests is exemplified clearly by the RCMP inaction and the lack of a professional approach to the investigation and prosecution of thisfile. Defence counsel urges the Court not to discount that Jordan and Cody speak to more than mere timelines.

Crown [18] The Crown acknowledges unequivocally that it has not met the standard for full disclosure in a timely fashion as contemplatedby Stinchcombe. Crown further acknowledges that the actions or inactions of the RCMP and the Crown, although inadvertent, amountto a lack of professional diligence amounting to complacency. In the face of those admissions, the Crown submits that the properresponse to the Defence application is for the Court to grant an adjournment so that both Defence and Crown can properly review thenew and now complete disclosure. [19] Crown relies on R. v.

McQuaid, (SCC), [1998] 1 S.C.R. 244, as support for the proposition that a judicial stayof proceedings should only be granted in the "clearest of cases", and that this case does not meet that very strict test. In particular, theCrown points to the two-part test set out by the Supreme Court of Canada in McQuaid which is, first, is there a violation of theStinchcombe requirements? In this case, the Crown acknowledges that there is; and secondly, unless there is irreparable prejudice to thetrial, if the trial is ongoing, the proper remedy is an adjournment and not a judicial stay of proceedings.

Discussion [20] There is no doubt in the case law that when it comes to the duty to disclose information to the Defence, the Crown and theinvestigating authority, here being the RCMP, are not severable (see R. v. Caccamo, (SCC), [1976] 1 S.C.R. 786; R. v.O'Grady, (BC CA), 1995 64 BCAC 111). Timely disclosure assists in assuring a fair trial from the outset, giving theaccused adequate opportunity to consider and respond to the Crown's case against him (see R. v. Horan, 2008 ONCA 589).

Stinchcombedescribes the right to make full answer and defence as one of the pillars of the criminal justice system and that the lack of timely and fulldisclosure may unfairly impede such a right as described in s. 7 of the Charter of Rights and Freedoms. [21] Once lack of full disclosure or late disclosure of relevant materials is made out, the onus lays with Mr. Kotchea to demonstratethat such late disclosure has adversely affected the overall fairness of the trial and its process (see R. v. McQuaid). [22] There also remains, however, a duty on Defence counsel to actually pursue full disclosure.

Although he referred to portions ofthe RTCC concerning photographs taken by a nurse during submissions, there is no mention as to whether Defence counsel did or did notmake further demands for disclosure of those photographs and, if so, when such demands were made. The burden or onus is dischargedif Mr. Kotchea can demonstrate that there is a reasonable possibility that the non-disclosure affected the trial outcome or overall fairnessof the trial process (see R. v. C.(M.H.,) (SCC), [1991] 1 S.C.R. 763). [23] Full answer and defence is more than just receiving disclosure.

It also includes the right to make an informed decision on bothsubstantive and procedural matters which might be impaired or indeed possibly irreparably harmed depending on the nature and volumeof the non-disclosure or late disclosure and the decisions to be considered. In analyzing that point, the Court must also consider whetheror not there has been adherence to the analysis requirements set out in R. v.

O'Connor, (SCC), [1995] 4 S.C.R. 411. [24] In this case there was scant reference by either counsel as to the relevance or weight to be given to the many just-receiveddocuments and photographs or how they may have affected Mr. Kotchea's decisions with regard to either substantive or proceduralmatters. However, when examining all of the factors at play here, the sheer volume of recently disclosed material, there is no doubt that

there has been a violation of Mr. Kotchea's s. 7, full answer and defence, and s. 11(d), right to a fair trial Charter rights. The issue left to be decided is how that breach can be remedied, by a judicial stay of proceedings or by some less dramatic and final direction from the Court. [ 25 ] In arriving at that decision, Defence counsel has urged the Court to give consideration to the Supreme Court of Canada's directions in Jordan and Cody , while recognizing the strict timeline infractions have not yet occurred.

The Crown disputes both the necessity for and the wisdom in the Court relying too heavily on Jordan and Cody , because many of the factors considered by the Supreme Court of Canada in those cases have not been examined or argued as part of this application before the Court. [ 26 ] Regardless of anything else, Jordan and Cody provide strict directions to the trial courts to apply a much more stringent guideline on how long a matter must take from commencement to conclusion.

The reason behind such definitive guidelines from the Supreme Court of Canada was in part the court's finding of a "culture of complacency" which the Supreme Court of Canada is determined to firmly address going forward. [ 27 ] The Defence contends, and the Crown acknowledges, a high degree of complacency by the Crown and the RCMP to date. That complacency resulted in an infringement of Mr. Kotchea's Charter rights.

The matter to be determined now is not the length of any delays and the reasons for them as addressed in Jordan and Cody , but rather the appropriate remedy now in light of the Charter breaches. [ 28 ] At this point, what the Court knows includes: (

a) there is considerable disclosure that may or may not be highly relevant to the case as it unfolds; (

b) the disclosure may require the calling of additional witnesses which may lengthen the trial estimate; (

c) there may be a need for Defence counsel to adjust the cross-examination of the complainant who is the first witness in the trial, and perhaps to re- strategize the examinations of other Crown and/or defence witnesses; (

d) there will be a requirement for more preparation by Defence counsel and, as such, additional expenses to Mr. Kotchea. [ 29 ] At this point, what the Court does not know includes: (

a) how the late disclosures would have affected, if at all, Defence counsel's strategy on any substantive or procedural matter; (

b) what, if any, impediment there would be to counsel being able to review the disclosure and be prepared to proceed at any further scheduled date. [ 30 ] At the end of the analysis, the Court determines that this is not a case where there will be irreparable harm to Mr. Kotchea's ability to mount a full answer and defence to the charges he faces.

Without a finding of irreparable harm, the remedy of a judicial stay of proceeding is not appropriate because this is not the clearest of cases and a less final and dramatic result will satisfy the ends of justice. [ 31 ] The matter will be adjourned to the trial scheduler to fix an additional five days of trial on the earliest possible date available to the Court and counsel. For its part, the Court will address the matter with extreme diligence so as to avoid the culture of complacency described in Jordan and Cody , and the Court expects counsel to do the same.

This may include scheduling this matter over other scheduled matters. [ 32 ] It would not be appropriate for the Court to leave the matter at hand without addressing at least some of the issues of costs associated by the late disclosure. The Crown must ensure that the digital true copies of the original photographs that have been disclosed be provided to Defence counsel in a format that will allow for appropriate and careful analysis and consideration. [ 33 ] In addition, the Court will direct that a transcript of all of Ms.

Dennis' evidence be obtained with an original for the court record, a copy for the Judge, a Crown copy, and a Defence copy, and that the cost of such transcripts and the copies be paid by the Crown. [ 34 ] Counsel should attend upon the Trial Scheduler immediately to find more dates for a trial and if necessary the Court will be available for a short period of time to address any difficulties in that regard. (REASONS FOR JUDGMENT CONCLUDED)