R. v. Strickland Date:, 2017 BCPC 211

Citation: R. v. Strickland Date: 20170424 2017 BCPC 211 File No: 167312-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM ANGUS STRICKLAND REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: P. Cheeseman Counsel for the Defendant: W. Heflin Place of Hearing: Victoria , B.C. Date of Hearing: April 24, 2017 Date of Judgment: April 24, 2017 [ 1 ] THE COURT: Before me today are two applications by the Crown: one to reopen a voir dire heard last November 2016 with

reasons given on January 9, 2017 in order that the Crown may introduce new evidence. The other, if the first is successful, is that Irevisit my ruling to exclude evidence in the trial of this matter based on this new evidence. Mr. Strickland opposes each application. [2] First I will deal with the Crown's application to reopen the voir dire. At issue in the voir dire was the admissibility of a mugshot of Mr. Strickland which was used in a photo line-up by Victoria City Police in their investigation into whether he, among otherthings, impersonated a peace officer. [3] Mr.

Strickland challenged the admissibility of his mug shot on the grounds that it constituted an unjustifiable infringement ofhis s. 8 Charter right against unreasonable search and seizure. As was clear in my reasons of January 9, 2017, I granted the applicationlargely because the Victoria City Police had no policy regarding the retention and/or destruction of personal information such asphotographs and fingerprints.

I wrote that I found this lack of policy somewhat surprising for the Victoria City Police department - a notunsophisticated organization - particularly given that the issue has been the subject of a great deal of adjudication in a number of cases,albeit largely having to do with fingerprints. [4] In the application before me today, the Crown seeks to reopen the voir dire to introduce evidence of just such a policy of theVictoria City Police in regard to the retention or detention of personal information such as fingerprints and photographs. [5] The test for the reopening of a voir dire is relatively straightforward.

It is a discretionary test, and it is clear in the materialsprovided - as Mr. Heflin concedes - that the court does have the jurisdiction to reopen a voir dire. Having said that, I have to be mindfulat the outset of the issue of trial fairness. It is clear that this voir dire or any voir dire should not be reopened if to do so would prejudicethe defendant. [6] There is a good discussion of the law in this area in R. v. I.C., 2010 ONSC 32. Clearly the further along the parties are in atrial, the greater the prejudice to the defendant.

In this instance, as the Crown points out, it has only called one witness in the trial of thismatter and even then really to accommodate schedules. We are, I am satisfied, really at the beginning of the Crown's case. I see no basison which to conclude that Mr.

Strickland would suffer any prejudice in terms of his opportunity to cross examine witnesses if I were toallow the Crown’s application to reopen. [7] At paragraph 191 of the I.C. decision, the court writes: “Reopening a voir dire is no different in principle [at least in the court'sview in that case] than an application to adduce fresh evidence at trial after conviction.” [8] In that same paragraph, the court cites Palmer and Palmer v. The Queen, (1979) (SCC), 50 C.C.C. (2d) 193(S.C.C.). That is a decision relied on by Mr. Heflin in this application as well, and Mr.

Heflin has directed me particularly to paragraph22 of Palmer where it is noted that even though there is broad discretion to allow the admission of new evidence after a trial, courtsshould be mindful of various principles that might preclude the admission of new evidence. [9] In particular, at paragraph 22(1) of Palmer, it is noted that in general new evidence should not be admitted if by due diligenceit could have been adduced at trial. Mr.

Heflin submits that there has been a failure of due diligence in this case. [10] The second principle set out in Palmer is that the evidence must be relevant in the sense that it bears upon a decisive orpotentially decisive issue in the trial. Other factors include that the evidence should be credible in the sense that it is reasonably capableof belief and that it must be such that if believed, it could reasonably, when taken with the other evidence at trial, be expected to haveaffected the result. That is, I suppose, in some sense an issue here but Mr.

Heflin draws my attention, in particular, to the first twofactors, that is, the exercise of due diligence and the principle that the evidence, if it is admitted, has to be relevant. [11] With respect to the evidence of due diligence, I believe that the original argument was that the policy of the Victoria City PoliceDepartment regarding the retention and detention of fingerprints and other personal information was available on its website. It is quiteclear that is not the case, but it is clear that the directions to apply to destroy that information is available on the VCPD website.

So, Iaccept that there is something on the website of the Victoria City Police Department that, if it had been viewed, might have alertedCrown to the presence of such a policy. [12] The submission of Mr. Cheeseman for the Crown is that he did not know about the policy before the voir dire, even afterhaving canvassed evidence with his police witnesses. [13] The decision to open or to reopen a voir dire is discretionary. It is contextual as well. At this stage with this evidence, I amprepared to accept that the Crown did not fail to exercise due diligence with respect to the discovery of the material.

That is to say I findthat acting in the normal course, as I accept Mr. Cheeseman did, it is not unreasonable to accept, or was not unreasonable on his part, toaccept this evidence of his police witness. I do not find a lack of due diligence with respect to the locating of this material. [14] The second issue is relevance, and certainly, as I say, the Palmer case provides that the evidence must be relevant in the sensethat it bears upon a decisive or potentially decisive issue in the trial.

The issue of relevance is slightly convoluted in this particular case,but the argument is this: that in the reasons for the voir dire it was quite clear that the rationale to exclude was driven, at least in the s. 1analysis, by the lack of a policy. As I say, that was significant. That seems to be the suggestion of defence counsel as well where on thefirst page of his written submissions Mr. Heflin writes: Crown submits that the existence of a policy on the retention and destruction of fingerprints is an important piece of evidence that washighly relevant to the decision to exclude.

Truer words were never printed. However, the failure to produce evidence that was easilydiscoverable was due to Crown tactics on the voir dire as much as anything else. [15] That last assertion about Crown tactics was not pressed, at least in argument before me. There was, as I noted at the beginning,some issue as to whether or not Crown was aware of this particular policy prior to the voir dire but declined to utilize the policy in thevoir dire. I have said that I am satisfied with Mr.

Cheeseman's submissions here today as an officer of the court that he did not know thatthe policy was in existence before the voir dire, and he did not learn about it until afterwards and, hence, brought this application. But,clearly, the lack of policy was a significant part of the decision to exclude. The policy could bear on the reasons to exclude the evidence

which would then bear significantly on the main issue in this case, which is the identification evidence. So, at the end of the day, I amsatisfied that the evidence meets the test of relevance as that set out in Palmer, as well. [16] There was a final argument made by Mr. Heflin and that was that the evidence could not be relevant, that is to say, that thephoto line-up evidence was, in his view, so lacking in merit as to be inadmissible.

With due respect, I find, at a minimum, that I cannotreach that conclusion on the basis of submissions made before me on this voir dire, and so I am not satisfied that I could find it wouldnot be relevant on that ground. [17] I am satisfied that the Crown, while exercising due diligence, did fail to discover the existence of the retention policy. As Ihave said, the policy meets the test for reliance.

I find no prejudice at this point in the trial to the defendant by reopening the voir dire,and for these reasons, I am allowing the application to reopen the voir dire. [18] That leads to the second issue before me today and that is the Crown’s application that I reconsider and reverse my originalruling given the new evidence in this voir dire. [19] The new evidence in the voir dire was admitted largely through Inspector Hamilton of the Victoria City Police who testifiedthat the Victoria City Police Department does have a policy with respect to the management, retention, and detention of photographicrecords and fingerprints which are collected for the purposes of identifying criminals.

It is clear, based on the copy of the policy thatwas admitted as Exhibit 1 on this voir dire that the policy has been in place since 1999. As I say, the evidence is not that the policy wason the website, although Mr. Heflin indicated in his submissions earlier that it might have been. He acknowledges that that was an error,but certainly the other policy entered as Exhibit 2 in the voir dire which is on the website speaks of the destruction of fingerprints andphotographs.

In particular, there is a document entitled “How do I get my identification documents destroyed?" In that document,information is provided to individuals with respect to documents that can be destroyed and the circumstances in which those could bedestroyed and an application could be made. So, there is no question that there is a policy which is contrary to the evidence that wasprovided in the original voir dire. [20] Inspector Hamilton spoke of a different policy, a "new policy," that has been in place since sometime after January of 2017.

Inthat policy, the Victoria City Police have determined to make no use of photographs or fingerprints of a person from whom thatinformation has been taken pursuant to arrest until the charges are approved. Of course, in the case of existing photographs or prints bypersons who have been convicted, it is clear that the Victoria City Police would continue to use those so that anyone, such as Mr.Strickland who has already been convicted, can expect that if nothing else, their fingerprints which were taken with respect to the chargeon which they were convicted would be held and would continue to be used by police.

I note parenthetically that that practice has beenheld in R. v. Dore (ON CA), [2002] 162 O.A.C. 56 to be reasonable and consistent with the Charter. [21] The issue at this juncture is whether the decision to exclude should be reversed given this new evidence. I am, in this regard,going to confine my comments to the s. 1 analysis of my decision on the voir dire given January 9, 2017.

I have noted already, and it isclear, that it was key to that decision that there was no policy of the Victoria City Police with respect to the privacy interests ofindividuals whose photographs or fingerprints were taken and that this evidence alters that. [22] What I take from the evidence in the voir dire today is firstly, that the Victoria City Police do have a policy of retention anddestruction of personal information; that some information is located on the Victoria City Police Department website with respect to thedetention or retention of this personal information; and that, at least some police officers at the Victoria City Police Department did notappear to know about this policy and may well have given Mr.

Strickland some advice which was not helpful. [23] In regard to the latter point, I do note the following excerpt from para 85 of Dore: In my view, although it would be helpful and appropriate for the authorities to advise a person who is not convicted of charges that if theperson has no other convictions or outstanding charges, he or she may apply to have their fingerprints destroyed, there is noconstitutional requirement to do so . . . As noted above, the person is in the best position to know his or her record.

Because it is aprivacy interest that the person is exerting, one would expect that a person who is concerned about fingerprints would make an inquiryabout the potential for having them returned or destroyed. Furthermore, most people who have been through the system will have hadlegal representation and therefore have access to this information through a lawyer.

This is not a situation where a person is arrested andis entitled to information from the police about his or her immediate rights to a lawyer and to remain silent. [24] At paragraph 71 of Dore, albeit in respect of the s. 8 contextual balancing, the court said this as follows: . . . where the state of retention is a static one, where the nature and degree of the privacy interest in the fingerprints is more minimal,and where the affected person is in the best position to know whether he or she does regain an expectation of privacy in the informationalcomponent of his or her fingerprints when a charge is disposed of in the person’s favour, it seems to me that a reasonable balance isstruck by holding that the right to be left alone in those circumstances arises if and when the person asserts his or her privacy interest byasking for the fingerprints to be returned or destroyed.

It is at that point that further retention of the fingerprints would becomeunconstitutional retention unless, in the particular circumstances, it could be shown that there were other factors that would trump theprivacy interest. [25] Again, as I note, this is in the context of a s. 8 balancing, but I find it is not inappropriate with respect to the balancing in s. 1 ofthe Charter as well, particularly on the question of whether to exclude the evidence or whether the exclusion of the evidence would becontrary to the administration of justice. [26] Mr.

Strickland testified in this voir dire that within a few weeks of his 2014 arrest, he attended at the Victoria City PoliceDepartment and filled out various forms enabling him to retrieve evidence that was seized from his home by police. Mr. Strickland saidhe made other inquiries with respect to payment for damages arising out of the entry by police into his home and testified that he alsoasked about the destruction of his photographs, if not his fingerprints. [27] Mr. Strickland testified that the individual that he spoke to was the exhibits officer. That officer told him to simply call the

detective who had investigated the file in the first instance rather than, for example, directing him to the website. Mr. Strickland said that he then left some voicemail messages on the detective's answering machine and taking no further steps, he heard nothing from that officer. [ 28 ] It is clear on the evidence in the voir dire that Mr. Strickland was alive, at this point, to his privacy interests yet took few steps to assert them. Certainly, his evidence was that he had had legal advice from his counsel with respect to the seized items before he went to the Victoria City Police station to obtain them.

I have noted already that there was a policy in place at that time for the destruction of those records. It is, in my view, speculative to say what the outcome of an application might have been if Mr.

Strickland had made one or, more importantly, what the impact on his privacy interests would have been the moment the application was made for destruction and, particularly, whether the photographs would have been used thereafter until that application had run its course. [ 29 ] In all of the circumstances and taking into account all of the evidence, I am convinced that the new evidence that I have heard today from all of the parties shifts the balance considerably, in my view, in favour of the inclusion of the evidence.

The policy was present and in place, and certainly the evidence is important with respect to the Crown's case. [ 30 ] With respect to the impact on Mr. Strickland, I bear in mind the steps that were taken by Mr. Strickland, the opportunities that Mr. Strickland had and the knowledge that Mr. Strickland certainly had with respect to the opportunity to apply to have those records deleted or returned to him. [ 31 ] In all of those circumstances and given the new evidence, I find that the administration of justice favours the admission of the evidence, notwithstanding my findings on s. 8 of the Charter .

The evidence that is going to be admitted into trial from the voir dire will be restricted to the photograph of Mr. Strickland which I believe was entered as Exhibit A, if I am not mistaken. (RULING CONCLUDED)