R v Den Ouden, 2023 ABKB 37

Court of King’s Bench of Alberta Citation: R v Den Ouden, 2023 ABKB 37 Date: 20230119 Docket: 210445581Q1 Registry: Calgary Between: His Majesty the King Crown - and - Willem Den Ouden Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Ruling on Accused’s Application for Disclosure of the Honourable Justice M.A. Marion _______________________________________________________ I. Introduction [ 1 ] The accused is charged with one count of sexual assault pursuant to

section 271 of the Criminal Code . The alleged incident ( Incident ) took place at the accused’s 20th birthday party, in the basement of the home of the accused’s parents, where the accused

lived. The trial is scheduled to be heard before a judge and jury from January 30, 2023 to February 3, 2023. [2] As the designate of Chief Justice Moreau, on September 28, 2022, Justice de Wit appointed me as the Case ManagementJudge pursuant to

section 551.1 of the Criminal Code. [3] The accused seeks disclosure from the Crown or the Calgary Police Service (CPS) surrounding information from or aboutfour individuals or potential witnesses (Individuals), and in particular in relation to what the complainant said to these Individuals aboutthe Incident (Statements). Alternatively, the accused seeks disclosure of contact information of the Individuals. II. Background [4] The Crown completed its disclosure in this matter in 2021. The names of the Individuals were in the disclosure.

Inparticular, I understand from counsel that the names of the Individuals were identified in the complainant’s statement to CPS. There isno information in the disclosure, and no information before the Court on this application, as to the contents of the Statements made bythe complainant to the Individuals. I also understand that the Individuals’ contact information is not in the disclosure, or before theCourt. [5] A pre-trial conference was held in February 2022. I am advised by counsel that no disclosure issues were raised at that time.

As noted, the trial is scheduled to commence before a judge and jury on January 30, 2023 for 5 days. [6] On November 21, 2022, I heard a voluntariness voir dire with viva voce evidence regarding the use and admissibility ofstatements made by the accused to the CPS. [7] On December 5, 2022, the accused’s counsel requested, from Crown counsel, disclosure about the Individuals and theirevidence. I am advised by Crown counsel that in response to the request, the Crown made an inquiry of the CPS, and in particularDetective Bowman, who advised that CPS did not interview the Individuals.

CPS does not have any written or recorded Statements fromthe Individuals, any notes from any interviews with the Individuals, and no further contact or other information about the Individualsbeyond what has already been disclosed by the Crown. Crown counsel refused to provide further disclosure or to take further steps,including on the ground that any information from or about the Individuals was not relevant. [8] On January 3, 2023, the accused’s counsel wrote to me as Case Management Judge and advised of the need for a preliminaryapplication.

I discussed this in a conference with counsel on January 11, 2023, and then set January 17, 2023 for the hearing of theapplication. III. Application and Evidence [9] I heard the accused’s application as Case Management Judge. It was not filed in the forms contemplated by the Court ofQueen’s Bench of Alberta Criminal Procedure Rules SI/2017-76 (Rules). The accused chose not to file any evidence in support of theapplication. I relied on the submissions of counsel as officers of the Court, and neither party took any issue with that or suggested thatviva voce or affidavit evidence was required.

There is no dispute about the underlying facts relevant to the application. IV. Position of the Parties [10] The accused asserts that the information from or about the Individuals is relevant. He asserts, in effect, that once heestablishes relevance, disclosure is required under R v Stinchcombe, , [1991] 3 SCR 326, citing page 343. The accusedsays that it is not up to him to trouble himself with or determine how information that must be disclosed is obtained by the Crown, oncehe has proven the obligation to provide it.

The accused asserts that whether the Statements are consistent or inconsistent with what thecomplainant said to CPS, or what the complainant might say at the trial, they are relevant and disclosure should be ordered. [11] The Crown opposes the application on several bases: (1) the application should be dismissed outright because it is beingbrought very late and without a proper Charter notice in advance of trial; (2) the application should be dismissed because theinformation being requested does not exist; and (3) the Statements, if they existed, or if subsequent statements or evidence of theStatements were obtained, would not be relevant.

V. Issues [12] The issues on this application are: (

a) Should the accused’s application be dismissed as being too late? (

b) Should the Crown be ordered to make the disclosure requested? VI. Analysis A. Should the accused’s application be dismissed as being too late?

[13] The Rules provide that applications must be made on notice in Form CC1 (Rule 5(1)) and, at least 7 days before the hearing,the applicant must file and serve an affidavit, transcript and other evidence or detailed particulars of the evidence that the applicantintends to present; as well as a

summary of the legal argument supporting the relief claimed (Rule 7(

a) and (b)). [14] The accused’s counsel raised this issue with Crown on December 5, 2022. As noted earlier, on January 3, 2023, the accused’scounsel wrote to me as Case Management Judge respecting other issues that had arisen which required a pre-trial application, and thisincluded the issue raised on this application. On January 11, 2023, I rendered my decision on the voluntariness voir dire, and after thatthe parties made submissions to me about the content of the within application.

Ultimately, I set the accused’s application down beforeme on January 17, 2023 with the agreement of the parties. [15] In the circumstances, while the accused’s late application is unfortunate and, frankly, caused solely due to the accused’scounsel’s failure to identify the potential disclosure issue in a timely manner, I am satisfied that the Crown was sufficiently aware of theissue within ample time to respond.

Crown counsel did not raise any prejudice associated with hearing the accused’s application onJanuary 17, 2023, or that she would have opposed the application differently if she had more time to respond. [16] Therefore, I exercise my discretion to allow the application to proceed in the form chosen by the accused in this case, and willconsider it on its merits. B. Should the Crown be ordered to make the disclosure requested? [17] As noted, the accused relies on Stinchcombe.

For the purposes of this application, I note these principles from Stinchcombe: • The fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown foruse in securing a conviction but the property of the public to be used to ensure that justice is done. (page 333) • The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensurethat the innocent are not convicted. (page 336) • The Supreme Court of Canada has previously stated that the Crown is under a duty at common law to disclose to thedefence all material evidence whether favourable to the accused or not. (page 338-339) • However, this obligation is not absolute.

It is subject to the discretion of counsel for the Crown. This discretion extends toboth the withholding of information and the timing of disclosure. (page 339) • While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant. The experience to begained from the civil side of the practice is that counsel, as officers of the court and acting responsibly, can be relied upon not towithhold pertinent information. ... (page 339) • The discretion of Crown counsel is, however, reviewable by the trial judge. ....

The trial judge on a review should beguided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding ofinformation will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law ofprivilege. (page 339) • Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown tocomply with its duty to disclose of which counsel becomes aware. .... (page 339) • With respect to what should be disclosed, the general principle ... is that all relevant information must be disclosed subjectto the reviewable discretion of the Crown.

The material must include not only that which the Crown intends to introduce into evidencebut also that which it does not. No distinction should be made between inculpatory and exculpatory evidence. (page 343) [18] With respect, I do not see how Stinchcombe is engaged in this case in the way the accused asserts. Unlike in Stinchcombe,where there was a recorded statement in existence that was not being disclosed, there is no statement that has been obtained by CPSwhich it or the Crown refuses to disclose. There are no notes, records or contact information that it refuses to disclose.

In fact, inresponse to the request the Crown made inquiries of CPS and CPS has advised that there is no other information available in CPS’possession or control about the Statements or the Individuals. That is, the Crown’s position is that the Statements “do not exist” or, putanother way: there is nothing to disclose.

What there is, as has been described in a similar situation in R v Osman, 2020 ONSC 1830 atpara 19, is more accurately described as “potential evidence” that was never sought or obtained by the police. [19] Effectively, in my view, the accused seeks to enforce either a duty on the Crown to inquire of police or other Crown agencies,or perhaps an alleged duty to do a further investigation. However, the accused has attempted to characterize this application as aStinchcombe application. [20] With respect to the duty to inquire, neither party provided me any case law dealing with the duty to inquire of the police.

In Rv Levin, 2014 ABCA 142 at para 44, leave to appeal refused (SCC), the Court of Appeal said: [44] The McNeil duty to inquire can be stated as follows. Unless unfounded, when Crown counsel is put on notice of the existenceof (

i) relevant information, or (ii) potentially relevant evidence pertaining to the credibility or reliability of a witness, the Crownhas a duty to inquire about and obtain the information or evidence, if it is reasonably feasible to do so: McNeil at paras 48-51.This duty arises owing to the fact that an accused has limited means of accessing relevant materials in the possession of third-parties(who are not obligated to come forward with information relevant to a prosecution) and the Crown, as a minister of justice, is in aposition to bridge the gap between first-party disclosure and the often haphazard disclosure of relevant evidence held by a third-party.The duty to inquire, when triggered, may avert the need for an accused to resort to the O’Connor regime for obtaining third-partyrecords, if the Crown is able to secure the cooperation of third-parties in disclosing relevant information or potentially relevant

credibility-evidence. [Emphasis added] [21] Further, in R v JEK, 2016 ABCA 171 at paras 57 and 58, the Court of Appeal said this: [57] With respect to the Crown’s attempt to secure the third party records, the Crown has an obligation to assist defence counsel andattempt to obtain third party documentation in other Crown agencies or departments when put on notice of its existence, if it isreasonably feasible to do so: R v McNeil, 2009 SCC 3 at paras 48-49, [2009] 1 SCR 66.

An accused has limited means of accessingrelevant materials in the hands of those third parties and the Crown is in a position to bridge the gap between first-party disclosure andthe often haphazard disclosure of relevant evidence held by a third-party.

If the Crown is able to secure the cooperation of those thirdparties, this may avert the need for an accused to resort to a court application: Levin, supra at para 44. [Emphasis added] [58] However, when all is said and done, if the third party chooses not to comply with the Crown’s request for the documentationsought, the obligation remains on defence counsel to make either an O’Connor or Mills application (depending on the type ofdocumentation). Crown counsel is not a guarantor of disclosure of third party records in other Crown agencies or departments.

Norshould they be where those records engage the legitimate equality and privacy interests of individuals. Still less is it obliged to providelegal advice to the defence on how and when it should be making an application for disclosure of third party records. Were Crowncounsel simply a flow-through proxy for disclosure of such records, there would be no need for court involvement. But there is such aneed, particularly when a third party refuses to disclose records in its possession without a court order. [22] In this case, in my view, the Crown made an inquiry of CPS and no further information was obtained.

The accused did notassert that there was any other source of the information. So, if the duty to inquire was engaged, it was discharged. [23] In my view, the accused’s application is, effectively, that in order to discharge the Crown’s Stinchcombe obligation theCrown is obligated to actively conduct further investigation at the request of the accused, or when the accused points out witnesses thatthe accused believes may have relevant information.

Neither party provided me any authorities on the question of whether or when anaccused can request or require the Crown to conduct investigations about or take statements from potential witnesses. The accused’scounsel referenced a “Police Action Request” process by which counsel for accused individuals frequently raise questions or seek thepolice to take steps.

Crown counsel agreed that this process is frequently used, but it is the Crown’s position that it is in the Crown’sdiscretion whether to follow up on requests and, further, the request must relate to evidence that is relevant. [24] I am not satisfied that the Crown has a duty to further investigate the Statements made by the complainant to the Individuals,or to investigate and obtain further contact information about the Individuals to provide that information to the accused. [25] I am guided by several Alberta Court of Appeal cases.

In Levin at paras 44-45, the Court of Appeal said: [45] The scope of the duty to inquire, however, does not extend to requiring the Crown (or police) to undertake investigations onan accused’s behalf: see R v Darwish, 2010 ONCA 124 at paras 29-41, 100 OR (3d) 579, leave to appeal refused, [2010] SCCA 124.Darwish, which was cited for this proposition by the trial judge, has been cited with approval by this court in R v Dias, 2010 ABCA 382at para 38, 502 AR 156, and by the Alberta Court of Queen’s Bench in R v Paxton, 2012 ABQB 96 at para 470, 531 AR 233. [Emphasisadded] [26] In JEK, in the context of an appeal of a stay of proceedings arising out of delay, the Court of Appeal stated that a defencerequest to obtain a statement from a potential witness could not be “properly characterized as outstanding Crown disclosure” (para 35).

In that case, the defence counsel requested that a statement be obtained from the grandmother of one of the complainants.

The Court ofAppeal stated this, at para 37: [37] Second, with respect to defence counsel’s “request” that a statement be secured from the grandmother, the Crown is not generallyobliged to send the police or other authorities on a quest to interview a potential witness at the behest of the defence: R v Darwish, 2010ONCA 124 at paras 29-41, 100 OR (3d) 579, leave to appeal to SCC refused, 33654 (21 October 2010); R v Dias, 2010 ABCA 382 atpara 38, 502 AR 156; R v Levin, 2014 ABCA 142 [Levin] at para 45, 572 AR 382.

Equally important, when Crown counsel volunteersto try to assist the defence in this way, it is unreasonable and inappropriate for a court to count any resulting delay against the Crown.The reason is obvious: this would strongly militate against any such cooperation by Crown counsel in the future.

And understandably so. [27] Finally, in R v Osman 2022 ABCA 77, in the context of an allegation of failure to provide full and fair disclosure, the Court ofAppeal said this at para 117: [117] On this record, the allegation that the RCMP obtained a DNA test of samples from the bathroom sink and that the Crown failed todisclose it, is baseless.

At best, Mr Osman is arguing that the RCMP should have investigated more thoroughly but it is well establishedthat defendants do not have a Charter right to direct the investigation or have the police or the Crown investigate more: R v Dias,2010 ABCA 382 at paras 38-40; R v Darwish, 2010 ONCA 124 at paras 26-46; R v Crane, 2013 NLCA 44 at paras 18-21; R v Levin,2014 ABCA 142 at para 45; R v Burgar, 2016 BCCA 204 at para 22; R v Montague-Mitchell, 2018 SKCA 78 at paras 57-58; Ontario vMiller Group, 2021 ONCA 879 at paras 33-34. [Emphasis added] [28] As noted, the accused has not provided me any authority to suggest that the accused has the right to apply or request that theCrown or police do more investigation.

While the Crown may agree to do so, these passages from our Court of Appeal suggest that thereis no obligation to do so at the request of the accused, and no such right of an accused to compel the Crown or the police to do so. [29] This view is not unique to our Court of Appeal. In R v Darwish, 2010 ONCA 124 (leave to appeal refused (SCC)) the Ontario Court of Appeal reversed the findings of the trial court which held that the constitutional right to make full answerand defence includes the right to have the prosecution investigate any defences that are not fanciful or speculative.

Darwish concernedthe failure of the Crown to order, and then produce, results of a second investigatory audit. In so doing, the Court of Appeal made anumber of findings including that: • An accused does not have a freestanding constitutional right to an adequate investigation of the charges against him or her

[…] Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in-and-of-themselves constitute a denial of the right to make full answer and defence. (para 29) • An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target. As Hill J. put it in R. v.

West … the defence cannot, through a disguised-disclosure demand, "conscript the police to undertake investigatory work for the accused". … That is not to say that the police and the Crown should not give serious consideration to investigative requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorial authorities that carry the ultimate responsibility for determining the course of the investigation. (para 30) [emphasis added] • The right of disclosure, while broad, does not extend so far as to require the police to investigate potential defences.

There is a vast difference between requiring the Crown to take reasonable steps to assist an accused in obtaining disclosure of relevant material in the possession of a third party, and requiring the Crown to conduct an investigation that may assist the defence. (paras 31-32). [ 30 ] The Crown made an inquiry of the CPS when presented with the information request.

The Crown was under no obligation to request CPS or anyone else to conduct further investigation to obtain or create records of the complainant’s Statements to the Individuals, or to investigate further to obtain or create contact information evidence about the Individuals that the Crown or CPS did not already possess or control. [ 31 ] As a result of all of the above, the accused’s application is denied. [ 32 ] At the application, the accused’s counsel suggested that the police investigation was inadequate, and that this justified the relief being sought.

As noted in R v Malley , 2017 ABCA 186 , at para 50 : “The accused may lead evidence at the trial that investigators had tunnel vision, failed to pursue important lines of inquiry, or otherwise carried out a deficient investigation.” However, this does not translate into a duty to compel the Crown or the police to conduct further investigation at the request of the defence. [ 33 ] In argument, the Crown denied that the investigation was inadequate. The adequacy or inadequacy of the police investigation is not before me. Further, there is no evidentiary record before me on that issue.

I make no findings or comment about the investigation in this case. Any assertions of inadequate investigation, and the associated risks it has on the accused and the trial process, are matters for trial: Malley at para 50 , citing R v Van , 2009 SCC 22 at para 46 . [ 34 ] Further, given my decision, I need not comment or make any findings as to whether the Statements to the Individuals, if some evidence of them was obtained, would have been or would be relevant or irrelevant, admissible or inadmissible, or usable or not usable, at trial. VII. Conclusion [ 35 ] The accused’s application is denied.

Heard on the 17 th day of January 2023 Dated at the City of Calgary, Alberta this 19 th day of January 2023. M.A. Marion J.C.K.B.A. Appearances: Cameron J. G. Bally for the Accused Gianna Argento for the Crown