R. v. Scott, 2023 BCPC 155

Citation: R. v. Scott 2023 BCPC 155 Date: 20230706 File No: 23443-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. RANDY GEORGE CONRAD SCOTT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: M. Feldthusen Counsel for the Defendant: V. Williams Place of Hearing: Colwood , B.C. Date of Hearing: July 6, 2023 Date of Judgment: July 7, 2023

The Issue [1] Mr. Scott applies to adjourn the trial of this proceeding, presently scheduled for July 18 – 20, 2023. The Circumstances [2] The Crown alleges that: (

i) on February 10, 2022, Mr. Scott was driving his vehicle on a public highway in Langford, BritishColumbia and became enraged by the driving of Ms. Beckow, who was in front of him; (ii) Mr. Scott swerved his vehicle around Ms.Beckow’s vehicle and braked to a sudden stop in front of her, forcing her to stop also; and (iii) Mr. Scott got out of his vehicle, beratedMs. Beckow and tore the handle off the door of her vehicle before fleeing the scene. [3] No one at the scene recognized Mr. Scott. However, Ms.

Beckow recorded a brief video of her assailant on her cell phonecamera, and provided the video to police officers who attended the scene after the assailant had departed. The video was circulated toofficers at the local police detachment, four of whom asserted that they recognized Mr. Scott as the person in the video. [4] On April 8, 2022, an information was sworn, accusing Mr. Scott of mischief, dangerous driving and uttering a threat. [5] Ms. Williams was retained as defence counsel in April, 2022, and made her first request for disclosure on April 13, 2022.

Shemade subsequent requests for disclosure in May and June, 2022. All were general requests for disclosure of Crown evidence. Nonespecifically requested the information now in issue. [6] Mr. Feldthusen will be Crown counsel at trial. He intends to call as witnesses two of the four police officers who identified Mr.Scott from the video. Each of those officers is expected to say that he had previous encounters with Mr. Scott and that he is able toidentify Mr. Scott from the video. [7] Mr.

Feldthusen acknowledges that, applying the principles articulated in R v McNeil 2009 SCC 3; [2009] 1 SCR 66 and R vGubbins 2018 SCC 44; 2018 SCC 3 , [2018] 1 SCR 35, the defence was entitled to disclosure of the circumstances under whichthe two police witnesses had previously encountered Mr. Scott. He states that he will remedy that deficiency within the next few days. Ms. Williams, for Mr. Scott, asserts that such late disclosure will materially impair her ability to properly prepare to cross-examine theofficers at trial. [8] Mr. Feldthusen is concerned that an adjournment of the trial may infringe Mr.

Scott’s right to trial within a reasonable time (seeR Jordan 2016 SCC 27; [2016] 1 SCR 631), and may result in a stay of proceedings. Discussion [9] I note that Mr. Feldthusen was assigned to this case in December, 2022. My criticism of the conduct of the prosecution arisesfrom events which occurred prior to his involvement, and so should not be read as applicable to Mr. Feldthusen as an individual. [10] Mr. Feldthusen submits that the defence complaints about the quality of Crown disclosure ought to have been advancedsometime in 2022, so as to allow the Crown time to supplement its disclosure.

He relies on R v Nowack [2019] OJ No. 4791; 2019ONSC 5345, in which Justice Goldstein said at paragraphs 50 -51: There is no question that an accused person is entitled not only to disclosure, but timely disclosure. Disclosure is not a separate right. It isa constituent of the right to make full answer and defence. Disclosure makes full answer and defence possible. Timely disclosure allowsthe defence to explore potential avenues of investigation: R. v. Taillefer, 2003 SCC 70 , [2003] 3 S.C.R. 307. An accused personmust establish that the Crown has failed to make timely disclosure of relevant material.

In order to obtain a remedy, however, he or shemust then show actual prejudice to the right to make full answer and defence: R. v. O'Connor, [1995] 1 S.C.R. 411 at para. 74; R. v.Spackman, 2012 ONCA 905at para. 111. Diligence in requesting disclosure is also a factor. Disclosure is rarely perfect and the process is prone to human error. It is inevitable in acomplex case with voluminous disclosure that things will be missing or incomplete. Thus, an accused person must bring a disclosurefailure to the Crown's attention in a timely way: R. v. Stinchcombe (SCC), [1991] 3 S.C.R. 326 at para. 24.

Failure to doso is something a trial judge may consider when determining if there has been prejudice to the accused's right to a fair trial: R. v.McQuaid, (SCC), [1998] 1 S.C.R. 244.

As Cory J. stated at para. 38 (in part): If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed todisclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept asubmission that the failure to disclose affected the fairness of the trial... [11] Accepting, as I do, Justice Goldstein’s statement of the applicable principles, I think it necessary to observe that diligence mustbe exercised by both Crown and defence counsel during the disclosure process.

It is the obligation of the Crown to make full and properdisclosure to the defence. That is because the Crown knows what relevant documents and other evidence are in the Crown’s possession,and the defence (usually) does not. In some cases, it may be reasonable to expect the defence to make specific enquiries of the Crownabout specific matters. In such cases, it may be appropriate for the defence to bear the consequences of a failure to enquire.

However,much depends upon the circumstances of the individual case. [12] In this case, three things ought to have been obvious to Crown counsel before the Information was sworn: (

i) identification of Mr.Scott as the individual involved in the incident would be the most important and challenging issue at the trial; (ii) the details of theofficers’ previous encounters with Mr. Scott would be of critical importance in assessing the strength of their identification evidence; and(iii) defence counsel were entitled to full disclosure of the particulars of those encounters. [13] One question which Crown counsel are obliged to assess before authorizing a prosecution is whether there is a reasonableprospect of a conviction. In order to reach a conclusion on that subject in this case, it would be necessary to review the particulars of the

identifying officers’ previous encounters with Mr. Scott. Crown counsel ought to have been in possession of, and to have carefully considered, those particulars before they authorized the swearing of the Information. [ 14 ] It necessarily follows that Crown counsel ought to have made disclosure of those particulars and the relevant documents as soon as defence counsel was retained and on record. In this case, that occurred in April, 2022. Conclusion [ 15 ] In my view, the failure to make proper and prompt disclosure in this case was primarily the fault of Crown counsel.

While it might have been prudent for defence counsel to make an earlier application for further disclosure, that does not excuse the Crown for failing to make early disclosure of information which was obviously critical to the Crown’s case. I do not think it fair to require the defence to proceed to trial when critical information remains undisclosed 12 days before trial. [ 16 ] The trial will be adjourned. Counsel are referred to the Judicial Case Manager to fix a new date for trial. _____________________________ The Honourable Judge Gouge Provincial Court of British Columbia