Her Majesty the Queen - v. -, 2017 SKPC 56

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 056 Date: May 11, 2017 Information: 35710347 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Hitchings Appearing: John Knox For the Crown Mike Owens For the Accused JUDGMENT M.E.Z. PENNER , J [ 1 ] The defence sought disclosure of the contact information of several witnesses to a three-vehicle collision that occurred on December 18, 2016 at Avenue W N. and 22 nd Street W. in the City of Saskatoon. The accused, Mr. Jason Hitchings, was charged with impaired driving and operating a motor vehicle while over .08 contrary to ss. 253 (

a) and (

b) of the Criminal Code following the collision. The Crown opposed the disclosure application. The issues to be determined were whether the contact information should be disclosed and whether the accused is entitled to costs on this application. An oral decision was provided on May 11, 2017 with written reasons to follow. Background

[2] The defence initially sought disclosure related to the offences by letter dated January 6, 2017. Covered in that letter was arequest for the name, address, and telephone number of any potential witnesses. A disclosure package was provided to the defence by theCrown and it included, among other things, a copy of Cst. McDade’s notes. The notes included the names of a number of individualswith information below their names blacked out and unreadable. Presumably the information that had been blacked out was the contactinformation.

The notes did not appear to include any information regarding the named individual’s version of events. Defence counselsent a further letter dated January 19, 2017 asking for the contact information. The Crown responded with a letter of January 24, 2017. In which the Crown advised that it would be in contact with the people identified in the police officer’s notes to determine if these peoplewanted their contact information disclosed to the defence or if they would like defence counsel’s contact information in order for them tocontact him if they wished to speak with him.

Defence counsel responded with a letter of February 7, 2017, asserting the belief that theCrown did not have the authority to withhold the information requested and advising that if the information was not forthcoming hewould be proceeding with a pre-trial motion. [3] Defence counsel raised the issue of disclosure of the contact information in front of me on February 8, 2017 indocket court. I was not in a position to rule on the matter at that time as this was an issue for determination by the trial judge. Theparties proceeded to have trial dates set.

The trial in this matter is set to commence on June 15, 2017 and I have been assigned to hearthe trial. Defence has brought this pre-trial application under The Constitutional Questions Act, 2012, SS 2012, c C-29.01 asserting thatthe Crown’s failure to disclose the contact information violates the accused’s right to make full answer and defence as protected by s. 7of The Charter of Rights and Freedoms. The defence is also seeking costs on the application. [4] On May 5, 2017 I heard argument from counsel on this issue.

Defence counsel provided me with a shortsummary of the facts, the names of the three witnesses who provided statements and the names of five witnesses who did not providestatements. Defence submits that disclosure of the contact information of the witnesses and potential witnesses is a necessary aspect ofthe accused’s right to make full answer and defence.

The Crown asserts that it is a gatekeeper, it is obligated to balance the privacy andsecurity interests of witnesses with an accused’s Charter rights, and in this case, it was acting reasonably and cautiously in that the onlyinformation withheld was contact information of the witnesses and not substantive disclosure.

Disclosure [5] The starting point of my analysis is the decision of Sopinka J. in R v Stinchcombe, (SCC), [1991]3 SCR 326, 68 CCC (3d) 1 [Stinchcombe] and the well-established duty imposed on the Crown to disclose to the defence all possiblyrelevant information regardless of whether the Crown plans to call that evidence or whether the evidence helps or hurts the Crown’scase. This duty is derived from s. 7 of the Charter and the right of the accused to make full answer and defence. The right to disclosureis now regarded as a stand alone s. 7 Charter right.

The general principle is that information should not to be withheld if there is areasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence. Thatprinciple is not absolute but is subject to the law of privilege and the discretion of the Crown to withhold information in certaincircumstances.

The Crown’s exercise of that discretion is reviewable by a trial judge. [6] Sopinka J. noted that the Crown may seek to withhold or delay production of information over concerns for thesafety or security of witnesses and leeway will be given to the manner and timing of such disclosure, but the absolute withholding ofinformation can only be justified on the basis of the existence of a legal privilege. Generally speaking, the “fruits of the investigation”must be disclosed to the defence.

He noted at paragraph 33: I am of the opinion that, subject to the discretion to which I have referred above, all statements obtained from persons who have providedrelevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses.

Wherestatements are not in existence, other information such as notes should be produced, and, if there are no notes, then in addition to thename, address and occupation of the witness, all information in the possession of the prosecution relating to any relevant evidence thatthe person could give should be supplied. [7] The “fruits of the investigation” are not only the statements given by potential witnesses or the notes taken by aninvestigating officer, but also include contact information of potential witnesses.

Some may read Sopinka J.’s comments as requiringdisclosure of contact information only when there are no notes to be provided. I do not read the comments as limiting disclosure ofcontact information to such circumstances, but that such information should be provided as a matter of course. If there are no notes, the

Crown should provide information on any relevant evidence that may be provided by that person. [ 8 ] In this case, eight people were identified by the investigating officer as having some information about the incident. However, written statements were obtained from only three of them. It is a well-established principle that there is no property in a witness. Defence counsel should have the same opportunity as the Crown to endeavour to speak with the witnesses or potential witnesses to find out what they know about the event.

All relevant information may not have been included in a statement or in an investigating officers notes or it may not yet have been shared by the witness with anyone. The defence should have the same opportunity as the Crown to obtain information within the knowledge of a potential witness. At this stage nothing compels a witness or potential witness to speak to the defence but defence should be given the opportunity to make the inquiry. In order to make that inquiry, the defence needs the contact information that the Crown has for an individual.

In the course of the investigation the Crown has obtained this contact information, this information is one of the “ fruits of the investigation, ” and it would seem it should be shared with the defence unless it is protected by privilege or there is a risk of harm. [ 9 ] Defence counsel referred me to a number of decisions in support of his argument that the Crown be ordered to provide the contact information of the witnesses identified in the disclosure provided by the Crown.

All of the decisions involved cases with charges against the accused that were significantly more serious than the accused ’ s charges in this case. Mr. Hitchings is charged with operating a motor vehicle while impaired by alcohol or drug and operating a motor vehicle while his blood alcohol level was over 80 mg per 100 ml of blood. The Crown has proceeded summarily against Mr. Hitchings. Although the accused in the cases filed faced greater jeopardy, any criminal conviction is significant and this one includes a mandatory minimum penalty.

Further, a general concern over witness safety would presumably be less in the present case than in the cases filed. There is insight to be gained from these decisions that is applicable to Mr. Hitchings situation. [ 10 ] In R v Pickton, 2005 BCSC 967 , 89 WCB (2d) 565 [ Pickton ] the Court directed the Crown to provide the defence with contact information of 79 individuals who had been interviewed or provided information in the investigation into the disappearance of sex trade workers in Vancouver.

Williams J. noted the well-established principle that there is no property in a witness and that the fundamental right of an accused to make full answer and defence requires that the accused have the opportunity to conduct a full inquiry into potential sources of information. The Crown raised general concerns about protecting the witnesses ’ security and privacy interests. However, those interests were protected by the ethical obligations that rest on counsel as officers of the court not to misuse that information. (paragraph 3).

The Court in the Pickton case did not see the necessity of having the Crown as an intermediary between the witness and the defence absent security or privacy concerns. The Crown was given an opportunity to raise safety concerns of particular individuals but these concerns were to be addressed on a case by case basis. Crown counsel was directed to disclose the contact information for the purpose of contacting the witness to arrange interviews if the witness was willing.

Defence counsel was subject to an undertaking not to communicate the contact information to any persons other than other counsel and private investigators acting for the applicant. [ 11 ] In R v Finley, [1996] OJ No 5440 (QL) [ Finley ] the accused sought disclosure of contact information of women who had been contacted or interviewed by police during an investigation into criminal behaviour at the Grandview Training School for Girls. The women were in the “ potential witness pool ” . They were former residents of Grandview but had not testified at the preliminary inquiry.

The accused wanted the contact information in order to attempt to interview the women. The Crown sought to protect that contact information focussing on the privacy interests of the women, some of whom did not want to resurrect unpleasant memories or be re-victimized. The Court noted that it was desirous of protecting the privacy of the women, however, such privacy interest should not be a bar to the accused ’ s ability to make full answer and defence.

The Court ordered disclosure with an exception for telephone numbers that were unlisted or initially unavailable to police officers. [ 12 ] In R v Charlery, 2011 ONSC 2952 , 276 CCC (3d) 548 [ Charlery ] the accused in a first degree murder and aggravated assault trial sought disclosure of contact information for civilian witnesses. The Court concluded that the information was relevant and necessary for the defence to conduct its own investigation and ultimately to make full answer and defence.

The Court noted there was no issue of privilege nor were there privacy interests of the witnesses that needed to be accommodated. The Crown submitted that the witnesses needed to consent to the disclosure of their information but the Court noted that: The Crown was not given this information to hold in trust. The information is in the Crown ’ s possession as a result of an investigation. It is the property of the public to ensure that justice is done. The Crown ’ s discretion not to disclose arises where there is a risk of harm. ” (paragraph 25).

The Court ordered the disclosure of the contact information of the witnesses as the accused ’ s right to such disclosure far outweighed the minimal intrusion into the privacy of the witnesses. The Court directed that such information was only to be used by counsel and his investigation legal team, and that it not be

disclosed to anyone else including the accused. [ 13 ] In R v Murphy, 2015 YKCA 10 , [2015] YJ No 33 (QL) [Murphy] counsel relied upon the Pickton and Charlery decisions to support its request for the disclosure of the contact information of a witness. The Court ordered disclosure of the contact information. The accused ’ s defence team included a private investigator. Therefore the Court imposed a condition that the private investigator, in conducting an interview of a witness, would be acting as an agent of legal counsel and would be bound by the same ethical and professional obligations that bind counsel.

Any breach by the investigator would be deemed a breach by counsel. [ 14 ] The Courts in Pickton , Finley , and Charlery referred to the Report of the Attorney General ’ s Advisory Committee on Charge, Screening, Disclosure and Resolution Discussions ( Queen ’ s Printer for Ontario 1993) . At p. 262 of its Report, the Committee made the following recommendation with the accompanying commentary: 20.

Where the names and addresses of witnesses are supplied to the defence by the Crown or investigative agency, the witnesses may be informed that there is no property in a witness and that the defence is entitled to interview them, but that they are not required to grant an interview: it is strictly their decision. Care must be taken, however, to ensure that the witnesses are not left with the impression that they should not grant the defence an interview. There should be a standard form of providing this advice where it is given.

Commentary In many criminal prosecutions, particularly those involving crimes of violence, witnesses such as the victim, or those close to the victim, are emphatic that they wish to have nothing to do with the preparation of the defence. However, this common state of affairs cannot be permitted to cloud over what is clear law, namely, that there is no property in a witness. Witness interviews cannot be used by the defence to harass or intimidate witnesses, but, properly conducted, they are an essential aspect of the accused ’ s right to prepare sufficiently to make full answer and defence.

Therefore, an accused ’ s access to the information witnesses have to give should not, either expressly or implicitly, be curtailed by statements or conduct on the part of the police or the Crown, that discourage a witness from making his or her own independent choice to talk, or not talk, to the defence.

Indeed, it may, in some cases, be desirable for Crown counsel to actively facilitate defence contact with Crown witnesses, as it may lead to early resolution of cases. [ 15 ] Although the Report does not specifically mandate the disclosure of witness contact information, the inclusion of recommendation twenty assumes that such information would be provided.

The starting point with respect to disclosure of contact information is that such information ought to be disclosed subject to a legal privilege and the appropriate exercise of the Crown ’ s discretion. [ 16 ] If the Crown has reason to believe that disclosure creates a risk of harm, then the Crown has the discretion to withhold the information subject, of course, to judicial oversight. Crown counsel argued that the exercise of this discretion is guided by previously decided cases, including Stinchcombe , and is further informed by the Canadian Victims Bill of Rights, SC 2015, c 13, s 2 .

The Crown further argued that this exercise of discretion is about a balancing of a witness ’ s privacy and security interests and the accused ’ s Charter rights. [ 17 ] The Canadian Victims Bill of Rights may be one factor impacting the exercise of that discretion but by no means does it stand for the universal proposition that every witness is a victim who is entitled to privacy and identity protection.

The Act provides the following definition: victim means an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of an offence. There will be many circumstances where a witness or potential witness would not fit within the definition of victim. [ 18 ] Further, in the

section entitled “ protection ” in the Act, there is no mandatory or automatic protection of a victim ’ s identity or privacy. The Act simply requires that the victim ’ s concerns be taken into consideration in the proceedings. The Act does prevail over conflicting legislation; however, it does not rise to the level of constitutional law. Even when a victim ’ s concerns are considered

pursuant to the Act , this legislation cannot take primacy over an accused ’ s constitutionally protected rights. [ 19 ] In addition to these cases provided by defence counsel, the Crown referred me to a number of cases touching on the issue of disclosure of contact information. In R v Mitchell, 2013 ONSC 1865 , [2013] OJ No 1442 (QL) the Court ruled that the Crown ’ s decision to withhold contact information was a proper and justified exercise of its discretion given there were specific safety concerns brought forward by the participants and potential witnesses.

The case involved a first degree murder charge and potential witnesses and family members had been assaulted, threatened, and genuinely feared for their safety. [ 20 ] Two other cases provided by the Crown were not particularly helpful to the case at hand. In R v Martin, 2002 SKQB 314 , 222 Sask R 125 the defence sought contact information of a witness who had clearly expressed that she wished to have no contact with counsel for the defence.

The accused had been released subject to conditions to not have any contact with the witness and the witness had testified and been cross-examined at length in a preliminary inquiry. The Court did not order disclosure of the contact information as the witness was clear she did not want this information revealed and the Crown was entitled to respect that request. In R v Dosanjh, 2006 BCPC 253 a Provincial Court Judge refused to order disclosure of contact information given that statements had been provided by the witnesses and disclosed to the accused.

Although this decision came after the Pickton decision of the Supreme Court in British Columbia, it made no reference to it and appeared contrary to that decision. [ 21 ] Crown counsel described its role as a gatekeeper. While I would agree with that description, I am concerned that the Crown has determined at the outset the gate must be closed and contact information for witnesses or potential witnesses will not be disclosed to the defence. The Crown has not outlined any circumstances under which it would open the gate, other than with the consent of the individual.

In my view, the gate should be open at the outset and does not hinge on an individual ’ s consent to disclosure of contact information. If specific privacy or safety concerns are identified for an individual the Crown could exercise its discretion and close the gate.

Once the gate is closed, Crown and defence counsel could work out terms under which disclosure of the information could take place or defence counsel could bring an application to have the Crown ’ s decision reviewed by a trial judge. [ 22 ] A policy which prohibits the disclosure of contact information in every case is problematic as it never involves consideration of the particular circumstances of the case or the witness.

The Crown has fettered its discretion by failing to look at the particular circumstances of each case. [ 23 ] Crown counsel argued that there were competing interests at play and that the Crown was endeavouring to balance the individual ’ s privacy and security rights with the Charter rights of the accused.

While I agree that there is greater awareness being placed on a victim ’ s right to privacy and security, there has not been and there cannot be an absolute priority placed on a victim ’ s rights as compared to an accused ’ s Charter rights. [ 24 ] Crown counsel indicated it was acting cautiously and reasonably. However, without specific individual privacy and security concerns being raised in relation to these witnesses, or potential witnesses, the withholding of their contact information is a breach of the accused ’ s Charter rights.

The Crown has not provided any indication that there are unique security or privacy concerns for any of the noted individuals. No one has been identified as a victim or as a person having any particular vulnerability that enters into the balance with the accused ’ s rights to disclosure and to make full answer and defence. [ 25 ] Defence counsel is an officer of the court subject to ethical obligations not to misuse the information received.

To ameliorate any concerns over dissemination of the contact information defence counsel shall be subject to an undertaking not to provide the disclosed information to the accused in the absence of the consent of the Crown or order of the court . Costs [ 26 ] Defence counsel seeks $2,500.00 in costs on this matter and compares the situation to that faced in R v Abrey, 2007 SKQB 213 , 297 Sask R 313 . Justice Ball confirmed a cost award of $5000.00 against the Crown in a case involving the Crown ’ s refusal to provide the officer ’ s notes in a legible format.

Defence counsel had requested legible notes on two occasions prior to trial. They were not forthcoming and at the commencement of trial the Crown continued to refuse to provide legible notes without justifiable reason. Costs of $5000.00 were awarded to the defence as defence counsel represented that the actual costs incurred by his client for his

attendance that day was $5000.00 At paragraph 19 Justice Ball noted: As a general rule, criminal courts do not order costs to be paid by the Crown. In R. v. Leduc (2003), (ON CA), 18C.R. (6th) 167; 176 C.C.C. (3d) 321 (Ont.

C.A.) it was held that although costs may be awarded under s. 24(1) of the Charter theyshould be restricted to cases where there are “circumstances of a marked and unacceptable departure from the reasonable standardsexpected of the prosecution”. [27] Justice Ball went on to note that the Crown’s intentional refusal to provide legible notes did not meet the requiredstandard of full disclosure of all relevant information in its possession and that there was no justification for such a “clear and egregiousbreach of the Crown’s disclosure obligation.” (para 29) [28] While I have found that the Crown is obligated to provide the contact information of the witnesses and potentialwitnesses, I cannot conclude that the Crown has violated fundamental principles of decency and fair play, nor has it caused prejudice tothe integrity of the judicial system.

The Crown has made disclosure of the witness statements that have been obtained, and it hasidentified all witnesses and potential witnesses. The Crown proceeded on the basis that all relevant information was disclosed, and thatit had an obligation to maintain the privacy and confidentiality of the contact information of the witnesses.

The Crown disclosed all ofthe information it had on the substance of the evidence and in my opinion there is no egregious breach of the Crown’s disclosureobligations. [29] I do accept that the Crown was endeavouring to balance the disclosure rights of the accused with the privacy rightsof the witnesses and for this reason I do not see a marked and unacceptable departure from the expected standard. I am not prepared tomake a costs order in the circumstances.

However, as this application was necessitated by the actions of the Crown, I do attribute anydelay in the proceedings connected with this application or the disclosure arising from it for Jordan purposes to the Crown.

Conclusion [30] By oral judgment I directed the Crown to forthwith provide a copy of the police officer’s notes without redactionalong with any contact information in the possession of the Crown for the individuals identified in the notes. [31] In making this order I was mindful of the ethical and professional obligations of defence counsel, with respect torepresenting his own client and with respect to his conduct in relation to witnesses and potential witnesses.

I am confident defencecounsel will operate within those parameters. [32] In my view witnesses and potential witnesses need to know that their contact information was provided by theCrown to defence counsel, for the purpose of being interviewed and that they are free to make a choice on whether to grant aninterview.

I directed that defence counsel, upon initial contact with the witnesses and potential witness, advise them that their contactinformation was made available to the defence upon order of this Court for the purpose of enabling counsel to contact them regarding aninterview, and that they are not obliged to submit to an interview with defence counsel. [33] Defence counsel shall be subject to an undertaking not to communicate the contact information to any persons other than othercounsel that may be assisting on the applicant’s case and private investigators acting for the applicant.

If defence counsel determinesthere is a need to communicate the contact information further than the undertaking would allow, counsel is to apply to the court forfurther direction.

_______________________ M.E.Z. Penner, J