Her Majesty the Queen - v. -, 2013 SKPC 125

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 125 Date: July 25, 2013 Information: 24443795 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cody Edward Loewen Appearing: Ms. M. Landry For the Crown Ms. J. Graham For the Accused DECISION ON VOIR DIRE J. BENISON , J BACKGROUND [ 1 ] The accused Cody Edward Loewen is charged that on the 30 th of December 2012, at Estevan, he did assault Cst.

Evan Handley, a peace officer, to wit: police officer for the City of Estevan, engaged in the execution of his duty contrary to s. 270(2) of the Criminal Code . The accused appeared on his own behalf on February 4, 2013 and entered a not guilty plea. The trial was set for July 11, 2013 at 9:30 a.m. Subsequently, the accused retained Ms. J. Graham to represent him and Ms. Graham forwarded a letter to Estevan Police Service on May 7, 2013, setting out details of the disclosure that she required. On July 5, 2013, Sgt. Reed of the Estevan Police Service forwarded a letter to Ms. Graham providing disclosure.

[2] On July 9, 2013, Ms. Graham filed and served a Charter notice requesting a stay of proceedings or alternatively anadjournment with costs, based on the alleged refusal of the Crown to provide full disclosure of all evidence relevant to the charge. OnJuly 11, 2013, a voir dire was held to deal with the defence application. On this date, defence counsel indicated that she was no longerseeking a stay of proceedings, but rather a production order for certain items that the Crown had refused to disclose and an order as tocosts.

DISCLOSURE ISSUE [3] The defence submitted that the Court should order production of the following items which the Crown had refused todisclose: 1) videos taken by Estevan Police Service covering the accused’s arrival at the detachment and the period of his detention in the cells; 2) radio transmissions of officers involved in the incident; 3) the booking photo of the accused; and 4) the guard sheet/prisoner log covering the period that the accused was in custody. EVIDENCE [4] Sgt. Kevin Reed testified for the Crown. He is the officer at Estevan Police Service who deals with all requests fordisclosure. Sgt.

Reed admitted that he did not disclose the four items in question and in his testimony he gave reasons for his decision. He was of the opinion that video footage of the accused walking into the detachment from the police car and his stay in the cell blockcould not be relevant since the alleged offence of assaulting a peace officer occurred at the Beefeater parking lot at an earlier time. Similarly, he believed that radio transmissions by officers involved in the incident would be of no value or relevance other thanestablishing the time of the transmission. Sgt.

Reed testified that the booking photo of the accused was taken 10 hours after his arrestand, in his opinion, could be of no possible relevance. As to the guard sheet/prisoner log, Sgt. Reed testified that it would contain notesof such routine things as feeding, checking, asleep, awake, or accused being removed by an officer. In Sgt. Reed’s opinion, thisinformation would only be useful if an assault or fight or other incident occurred in the cell block. In the particular case of the accused,Sgt. Reed noted that the accused had calmed down by the time he was taken to the police station. [5] Sgt.

Reed explained to the Court how he makes decisions as to what to disclose and what not to disclose to defence counselor accused persons. He bases his decisions on what he has observed in past cases and decisions made by judges in the Court where he isthe Estevan Police Service court officer on a regular basis. He makes his determinations as to relevance on the basis of this observationand experience. Sgt. Reed said that he is also cognizant of the fact that he has limited staff available and has to make decisions thatcertain disclosure is unnecessary and irrelevant.

LAW [6] The Supreme Court of Canada set out the rules and guidelines relating to the Crown’s duty of disclosure in R. v.Stinchcombe, (SCC), [1991] 3 S.C.R. 326. The Court ruled that the Crown has a legal duty to disclose all relevantinformation to the defence. The obligation to disclose is subject to a discretion with respect to the withholding of information and to thetiming and manner of disclosure. Discretion must also be exercised with respect to the relevance of information.

The Crown’s discretionis reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is areasonable possibility that this will impair the right of the accused to make full answer and defence. ANALYSIS

[ 7 ] Certain types of disclosure are made by the Crown on a routine basis. This would include such things as a

summary of the circumstances of the offence, copies of witness statements and/or a

summary of the witness’ anticipated testimony, a copy of any statement made by the accused, a copy of the accused’s criminal record and copies of documents and photos to be used in evidence. [ 8 ] In addition to items disclosed on a routine basis, the Crown would normally be expected to disclose further items which it deems to be relevant. Into this category might fall videos of the accused at the police station or in the cell block. In this case, Sgt. Reed refused to disclose such videos on the basis that they were not relevant.

In his testimony he advised that he had checked with the arresting officers before arriving at this decision. CONCLUSIONS 1. Videos of Accused at Estevan Police Service Station . [ 9 ] In reviewing Sgt. Reed’s decision on the two video items, I find that he directed his mind to the issue of relevance. It was clear from his testimony that, if there was anything out of the ordinary in these videos that might relate to the alleged offence, he would have disclosed them to the defence.

Nevertheless, defence counsel has raised the possibility that these videos could provide evidence of the accused’s physical condition, including impairment and/or intoxication, which could go to the issue of mens rea. I agree with defence counsel’s submission in this respect and find that the video evidence in question meets the criterion for disclosure set out in Stinchcombe : the evidence should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence.

In my opinion, such reasonable possibility exists with reference to the videos in question and they should be disclosed to the defence. 2. Radio transmissions, booking photo and guard sheet/prisoner log. [ 10 ] It is my conclusion that these items need not be disclosed by the Crown. Applying the Stinchcombe principles to the case before me, I conclude that it would be purely speculative to suggest that any of these items requested to be disclosed are relevant.

They do not meet the threshold test in Stinchcombe that information should not be withheld if there is a reasonable possibility that this would impair the right of the accused to make full answer and defence. I find that Sgt. Reed properly and conscientiously exercised his discretion in this case to refuse to disclose the three items requested. I do note however, that Sgt. Reed did cause some confusion by indicating in his letter of July 5, 2013, that certain items were not relevant, when in fact the items did not exist.

When an item requested does not exist, that should be stated clearly. [ 11 ] There is always a possibility, at the trial of the matter, that the defence may raise issues that will suggest that the failure to disclose one or more of the items requested had an adverse effect on the accused’s right to make full answer and defence. In such an event, the defence still would have the right to seek a remedy for the failure to disclose the items.

ORDER [ 12 ] It is hereby ordered that the Crown shall produce to counsel for the accused, within twenty days, or such further time as the Court may order, a copy of videos taken by Estevan Police Service covering the accused’s arrival at the detachment and the period of his detention in the cells. COSTS [ 13 ] The defence has also requested that the Court order costs against the Crown for the adjournment required because of the Crown’s failure to provide disclosure. On this issue it is appropriate to consider Sgt.

Reed’s testimony as to what happened with the file before he provided disclosure by his letter of July 5, 2013. Sgt. Reed testified, and I accept his testimony on this issue, that the accused

had requested disclosure which had been provided and entered a not guilty plea to the charge. When the accused retained Ms. Graham, she made a written request for disclosure by her letter of May 7, 2013. Sgt. Reed had held discussions with Ms. Graham about the possible resolution of the matter and this continued until the latter part of June. Sgt. Reed was expecting to hear back from Ms. Graham and, with the trial date approaching, he sent his disclosure letter on July 5, 2013, hoping that it would speed up the process of resolving the matter. Apparently, Sgt. Reed did not hear back from Ms.

Graham after this and the Charter application relating to non-disclosure was filed as indicated. [ 14 ] Taking all of these circumstances into consideration, I find no basis to make a grant of costs to the defence in this case. J. Benison, J