R. v. McKay Date:, 2010 BCPC 92

Citation: R. v. McKay Date: 20100427 2010 BCPC 0092 File No: 29194-2-B Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDWARD HENRY BRENT McKAY RULING ON CONDITIONAL STAY OF PROCEEDINGS OF THE HONOURABLE JUDGE M. J. BRECKNELL Crown Counsel: G. McDonald Appearing as Amicus Curiae: J. Duncan Place of Hearing: Prince George , B.C. Date of Judgment: April 27, 2010 [ 1 ] This matter is File No. 29194-B2, the matter of Regina versus Edward Henry Brent McKay. The actual trial matter before the court alleges that on May 18, 2009, Mr.

McKay breached a probation order that he was on by consuming or possessing alcohol. That was not permitted under his probation order. [ 2 ] About the same time Mr. McKay was dealing with those charges, the Legal Services Society of British Columbia changed their policy with regard to how they would fund individuals who were facing criminal charges but were unable to pay for them themselves. That funding change affected what Legal Services Society describes as category one offences of which a breach of probation is one of them. [ 3 ] Mr. McKay, along with two other individuals, Mr. Williams and Mr.

Kivi, brought what is commonly described as a Rowbotham application before the court. As the judge assigned to the trial of the Information, I was also the judge assigned to the hearing of the

Rowbotham application. That Rowbotham application was heard over a period of five days in the summer and early winter of 2009, and in that Rowbotham application, Mr. Williams received the assistance of Mr. Gibbs and Mr. Duncan, Mr. Kivi received the assistance of Mr. Duncan, and Mr. McKay received some assistance from Mr. Trudeau, a Native court worker. [ 4 ] The Crown was represented by the Attorney General's legal services branch, Ms. Jackson and Ms.

Wolfe. [ 5 ] At the end of that Rowbotham hearing, there was a slight hiatus, and then on February 12, 2010, I provided written reasons with regard to each of the three applications. I am only going to deal today with the outcome of Mr. McKay's application. [ 6 ] After reviewing the evidence presented by both the applicants and the Attorney General, reviewing what can only be described as an extensive list of cases provided by both the Attorney General's counsel, Mr. Gibbs, and Mr.

Duncan, some cases that I located and provided to counsel, and some other cases with regard to the court's duty to assist an unrepresented accused, after reviewing all of that, I came to certain conclusions about the outcome. [ 7 ] As it applies to Mr. McKay, and applying the test originally set out in Rowbotham but later refined in such cases as Rushlow and Ho and Malik , I came to the conclusion in applying the Rowbotham test that Mr. McKay had succeeded in some of but not all of the steps necessary to be successful in a Rowbotham application.

For example, I did conclude that he met the test for financial eligibility, also referred to as the indigency test, despite the fact that his material, in some respects, was lacking. I also concluded that he had satisfied me on the issue of seriousness both because the charge in itself is serious, as is any criminal charge, but mostly because, in the case of Mr. McKay, a conviction in this matter might well result in him spending time in jail because the Crown is seeking a jail sentence. [ 8 ] Where Mr.

McKay was not successful on the initial Rowbotham application was in the area of complexity, where I concluded at that time, given that Mr. McKay had not only high school education but some college training and the fact that his comments to the court during the Rowbotham application were careful, considered, and eloquent, that he did not meet the test of complexity because although the matters themselves were complex, I concluded he had the capacity to learn and understand complex ideas and, further, that with the assistance of the court, he could receive a fair trial. [ 9 ] In addition, at that time, because Mr.

McKay had advised the court that he intended to plead guilty to the charges before the court, I concluded that a Rowbotham application and Rowbotham relief was not available to him because a Rowbotham application is meant to alleviate the possible unfairness of a trial, and a guilty plea, of course, would take away a large component of that concern. [ 10 ] At the time the court heard the Rowbotham application, there was no indication made to the court that this breach of probation charge was anything out of the ordinary.

I do not fault anybody for the new information that has now come before the court not being available at the time. I am certain the Crown thought it was a rather straightforward matter, and although no doubt Mr. McKay would think it complex, the court's assistance in breach of probation trials is not uncommon. [ 11 ] However, things have changed. Mr. McKay has come before the court. The trial itself has been commenced, and the court has heard some evidence from the investigating officer, Constable Reddekopp.

In the course of that evidence, additional issues began to come to light, requiring the constable to return to the detachment to obtain additional disclosure on a variety of issues. [ 12 ] He has done that, including providing some additional disclosure to the Crown and from the Crown to Mr. McKay and to Mr. McKay's able assistant, Mr. Duncan, who is acting as a friend of the court at this point in time. [ 13 ] The late disclosure includes a memo from Constable Reddekopp to the Crown.

The incomplete disclosure which was not made available at the time we were last here at trial but has subsequently been provided to Mr. McKay includes what I would describe as a fingerprint sheet from the RCMP and a series of photographs taken from the RCMP computer database which allege to be photographs of Mr. McKay and (and here is where the complicating factor comes in) Mr. McKay's twin brother.

It could not have been known to the Crown at the time this matter started that there was the potential of such a complex identity issue, both because that would not be something normally investigated by the police and also because it is not something Mr. McKay is required to tell anybody until his case commences. [ 14 ] Today the court was provided with three documents: Exhibit "A," Exhibit "B," and Exhibit "C," Exhibit "A" being the memo from Constable Reddekopp to the Crown; Exhibit "B" being a fingerprint sheet allegedly identifying Mr.

McKay, which Constable Reddekopp says he used to conclude his identification of Mr. McKay; and Exhibit "C," three pages of photographs of two persons which the police believe to be in some of the cases Mr. McKay and in other of the cases his twin brother. [ 15 ] The nature of Constable Reddekopp's evidence up until now and the disclosure which arrived after the last trial date and today drastically changes the landscape with regard to the issue of complexity, in my view. [ 16 ] Mr.

Duncan made very brief submissions on the point but has quite succinctly pointed out there are at least four different heads of possible Charter relief now available to Mr. McKay under s. 7 and s. 9 of the Charter : first of all, the nature of the arrest itself by Constable Reddekopp given the evidence he has presented to court up to this point; secondly, the identity of Mr. McKay as compared to his brother and whether or not he was, in fact, properly identified; thirdly, the use of the photographs and the fingerprints in circumstances that appear to have been done before Mr.

McKay was formally charged, which may well be a breach of his Charter rights; and fourthly, the complications that might arise as a result of Mr. McKay being arbitrarily detained. [ 17 ] None of these issues have been proven. They have not even yet been argued. But they are topics which Mr. Duncan quite rightly points out are complex on several points and will require extensive research by counsel, something which Mr Duncan says Mr. McKay would be incapable of properly doing because he is not trained in the law. [ 18 ] The question that now arises is, Can the court still assist Mr.

McKay through the process to ensure trial fairness? [ 19 ] I have had the opportunity to listen to Mr. McKay on many occasions throughout the hearing of the Rowbotham application and other court appearances. I am satisfied that he is a person of normal or average intelligence, but he is not a person trained in the law and

not, from my observations, a person who has the high level of sophistication to be able to tease out the nuances between one case and another that may or may not apply to the complexity that he now faces in both defending his case and prosecuting the Charter applications that he would be entitled to make. [ 20 ] Those complexities in this case, which were not obvious on the face of it at the beginning and, indeed, not obvious until recently, in my view, puts the court in the position of potentially having to conduct rather than assist Mr.

McKay in his case both with regard to the defences he may be able to raise with regard to the evidence that has been presented and with regard to the Charter applications he may be entitled to make on the points that I have raised or indeed additional points which may come to light. [ 21 ] The court could, no doubt, wade into the fray and assist Mr.

McKay to ensure trial fairness to him, but in doing so, I have grave concerns that the court might be overstepping its bounds with regard to fairness to the community and the Crown because fairness has to apply both ways in a criminal trial. [ 22 ] Despite the brief submissions made today, I conclude that this matter has now become too complex for Mr. McKay to be able to properly represent himself even with the court's assistance.

He has already made out the other components of the Rowbotham test, and he has now, in my view, made out the complexity component as well. [ 23 ] Now, I recognize that I am coming to a conclusion in this matter without the benefit of the Attorney General's legal services branch being able to make submissions to the contrary, and I want to be able to provide them with that opportunity. [ 24 ] There are a number of remedies available to the court at this time. One would be to simply adjourn the matter, but an adjournment is of no assistance to Mr.

McKay because if he is forced to represent himself again, he will have the same difficulty with the complexities as he has today. Counsel did suggest that I could order that counsel be appointed for Mr. McKay, and although I still am open to the argument that there is a residual authority for the court to do so in special circumstances, I do not think this is the appropriate remedy in this case at this time. [ 25 ] What I do believe to be an appropriate remedy at this time would be a conditional stay with regard to the information. A conditional stay, in my view, would protect Mr.

McKay's position but would give the Crown and the Attorney General's legal services department an opportunity to examine what I now believe to be serious complexities in this case and then give thought to whether or not they wish to take certain steps that are open to them. [ 26 ] I would note that with regard to the application brought today by Mr. McKay with the assistance of Mr. Duncan, Mr. McDonald, the Crown, has taken no position.

Therefore, in effect, I have not heard yet from the Crown or the Attorney General's legal services branch with regard to whether or not I may be falling into error with regard to my conclusions about the complexity issue. Nevertheless, I am going to make the following order. [ 27 ] Madam Clerk, with regard to Information No. 29194-B2, I am ordering a conditional stay of proceedings. I will allow the Crown and the Attorney General's legal services department until June 25, 2010, to decide whether they wish to either (

a) bring forward further submissions concerning this issue after they have had an opportunity to review my brief reasons here today and further information the Crown will be providing to the legal services branch of the Attorney General, including, for example, copies of Exhibits "A," "B," and "C" that were presented to me today as well as a

summary of Constable Reddekopp's evidence to date, and (

b) the other option, of course, is that the legal services branch of the Attorney General could direct the Legal Services Society to appoint counsel for Mr. McKay who would then be able to develop the arguments necessary with regard to the Charter applications and the substantive defence. [ 28 ] If neither of those steps is taken by June 25, 2010, the stay will become permanent. [ 29 ] This matter is now adjourned to June 25, 2010, in Courtroom 101 or sooner if the Crown and the legal services branch of the Attorney General have made their decision.