Her Majesty the Queen - v. -, 2013 SKPC 172

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 172 Date: October 15, 2013 Information: 43323762 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sergii Mudriievskyi Appearing: Curtis Wiebe For the Crown Christina Skibinsky For the Accused RULING B. HENNING , J [ 1 ] Mr. Mudriievskyi (hereafter, the Accused) is charged with the Criminal Code offences of assault and mischief alleged to have occurred on May 22, 2013 at Regina in respect to Olena Mudriievskyi (hereafter, the Complainant), proceeded with summarily.

The charges arise from a confrontational incident that occurred between the parties concerning some photographs taken by the Complainant of their five-year-old daughter, scantily clothed, which may have been for improper or illegal purposes. That matter has been investigated, and no charges have been laid.

However, in the heat of a discussion concerning that matter, the Complainant alleges an assault and destruction of her laptop computer occurred which result in this proceeding. [ 2 ] The charges in this matter were sworn on June 1, 2013, and correspondence by letter and email passed between Crown counsel, originally Ms. Elizabeth Hiltz for the Crown, and the current Crown counsel, Mr. Wiebe (hereafter, Mr. Wiebe will be referred

to as ‘the Crown’), and Ms. Skibinsky (hereafter, the ‘Defence’) counsel on the subject of disclosure. An impasse was reached betweencounsel regarding the propriety and feasibility of complying with disclosure requested. A Notice of Motion was originally filed datedJune 12, 2013, and the present Notice dated July 3, 2013, has been the subject of argument on July 30, 2013. A

schedule on which briefswere to be exchanged was discussed, and I indicated that over the summer months I would be absent for several reasons, or involved inlonger proceedings, and the date of October 16, 2013 was set to receive a ruling on disclosure and discuss further conduct of the case. Materials have been filed by both the Crown and Defence dated July 23, July 29, August 2, and August 29, all in the current year. [3] The Notice of Motion requests the following disclosure, and this wording is taken verbatim from that Notice: 1.

The police investigation file involving the Complainant’s photographing her five-year-old daughter topless, wearing nothing butpanties, and positing sexually provocative ways on a bed, including, but not limited to the following items:

a) all documents, police reports and officer’s notes;

b) video-taped or audio-taped witness statements taken in relation to this investigation; and

c) all other disclosure in connection with this file. 2. The police investigation file involving the Complainant that is itemized as a “child abandonment” investigation, if this file differsfrom the investigation described in paragraph 1, above. 3.

The police investigation file involving the Complainant’s boyfriend using threats and promises towards the Accused at thedirection of the Complainant to attempt to persuade the Accused to recant certain information he had given to police within theinvestigation for the Complainant as discussed in paragraph 1 above. [4] The Notice of Motion itemizes certain ‘grounds’ for the above application, and these are expanded upon in the materialsfiled.

Essentially, the Defence alleges that the materials relating to investigation of other charges bear upon the issue of credibility of theComplainant who is stated by the Defence to be the only witness for the Crown. The Defence reviews the anticipated evidence in

Part IIof their Brief filed July 23, 2013, noting that there is no independent corroboration of the alleged assault. The Defence points out that thesubject of the incident between the Accused and the Complainant on May 22, 2013 dealt with allegedly improper pictures taken by theComplainant. Further, it is alleged that the Complainant’s male friend, referred to in the materials as “the boyfriend”, then attempted tosubvert the course of the present case with an improper approach to the Accused.

No charges have been laid against these persons. [5] The Defence asserts that full answer and defence requires that they have all of the materials in the possession of the ReginaPolice Service in their investigation of those subsequent matters, in order to conduct a full and proper cross-examination of theComplainant. The Crown has acknowledged the existence of these materials in the possession of the police. The Defence argues thatthey fall within the doctrine stated initially by the Supreme Court of Canada, R. v.

Stinchcombe (No.1), (SCC), [1991] 3S.C.R. 326, and subsequent cases following and developing that doctrine, which are set out in the Defence Brief of Law. [6] Stinchcombe deals with ‘First Party’ disclosure, which was expanded upon in R. v. McNeil, 2009 SCC 3 , [2009] 1S.C.R. 66, to include materials relating to third parties in the possession of investigators, notwithstanding that ‘Third Party’ disclosurefollows a different set of rules and considerations as set out in R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411 (which wasagain also considered in McNeil, supra).

The classic statement of principle in Stinchcombe is set out at paragraphs 17 and 18 of McNeil,supra: 17 The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is wellestablished. The duty is triggered upon request and does not require an application to the court.

Stinchcombe made clear that relevantinformation in the first party production context includes not only information related to those matters the Crown intends to adduce inevidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accusedin the exercise of the right to make full answer and defence.... 18 While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions.

Unless the information is clearlyirrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in itspossession. The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure inthe usual course may result in harm to anyone or prejudice to the public interest. The Crown’s exercise of discretion in fulfilling itsobligation to disclose is reviewable by a court. [7] The O’Connor principles and procedure were summarized in R. v. McNeil at paragraph 27 as follows:

(1) The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on the third party record holder. The subpoena compels the person to whom it is directed to attend court with the targeted records or materials.

(2) The accused also brings an application, supported by appropriate affidavit evidence, showing that the records sought are likely to be relevant in his or her trial. Notice of the application is given to the prosecuting Crown, the person who is the subject of the records and any other person who may have a privacy interest in the records targeted for production.

(3) The O'Connor application is brought before the judge seized with the trial, although it may be heard before the trial commences. If production is unopposed, of course, the application for production becomes moot and there is no need for a hearing.

(4) If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, in all but the rarest cases where the accused's innocence is at stake, the existence of privilege will effectively bar the accused's application for production of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of the O'Connor process.

(5) Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stage test established in O'Connor . At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, the judge may order production of the record for the court's inspection. At the next stage, with the records in hand, the judge determines whether, and to what extent, production should be ordered to the accused . [ 8 ] The Crown relies on the recent Saskatchewan case of R. v. Cyr , et al , 2013 SKQB 87 , in which Stinchcombe , supra , R. v.

O’Connor , supra and O’Neil , supra were considered in deciding which principles and processes should apply to a situation where a great number of police files were requested by the Defence. Schwann J. canvassed the issues to be considered in respect to third parties, and did not accept the argument that police agencies (in that case, both the Regina Police Service and the Royal Canadian Mounted Police) should not have third party standing, independent of the prosecution.

The status of police agencies will, of course, not always be of a third party, but becomes so where the subject matter sought concerns a third party and is not the person subject of the proceedings, or closely related proceedings, for which the disclosure is sought. Such third parties will in most cases have expectations of privacy, and relevancy to a current matter is often in issue. [ 9 ] The issue in the present case will be to determine whether the information sought is first or third party in character.

It is to be noted, that the Defence has not initiated the third party O’Connor procedure, and takes the position that the disclosure sought falls within the Stinchcombe regime. It therefore follows that if the Defence is not successful in the present application, a further procedure under the O’Connor rules might be pursued. The Regina Police Service is not a party to the present application. [ 10 ] At paragraph 39, Schwann J. noted that the parties in R. v. Cyr , et al , agreed that the records were third party records, and the issue fell clearly within the O’Connor regime.

The Defence argues that this fact alone distinguishes the case, and strenuously points out differences between Cyr and present case, and notes that the many files sought in the Cyr case by the Defence were to assist in attacking the credibility of a witness named Pascal who had already testified at a preliminary hearing. The Defence in that case wished to have not just the criminal record, but all of the police files relating to the convictions that witness had which had been investigated by both Regina and Fort Qu’Appelle police agencies.

They totalled 38 and 25 files respectively, containing huge amounts of material pertaining to persons unconnected to Cyr or Pascal. Further, these files related to a period between 1998 and 2011, and were physically difficult to access. Schwann J. observed it is not sufficient to invoke an issue of credibility in a broad and abstract way, but it must be related directly to the information sought and the case at hand. [ 11 ] The present case involves a request with respect to two files, both related in some measure to the present prosecution.

The first pertains to an investigation of the subject matter of the argument which precipitated the alleged assault and destruction of a laptop computer, namely, possible improper or illegal conduct by the Complainant with respect to their child. The nature of this conduct, it is suggested, may provide motivation for the complaint against the Accused.

This is not a credibility issue nearly so remote as in the Cyr case, supra . [ 12 ] The second police investigation information pertains to an approach made by the boyfriend of the Complainant who, it is alleged, made some attempt to have the Accused alter or withdraw statements made to police which precipitated the investigation of the Complainant referred to in the paragraph above. This is also information that pertains quite directly to the Complainant, whose involvement and motivation in that matter may be relevant to the present charge.

[ 13 ] However, the information sought is not entirely related to the Complainant and her boyfriend, but may also relate to interviews and investigation with respect to the (then) five-year-old child of the Accused and Complainant. Police file information relating to the child alleged to be the subject of questionable photographs is likely to be the most sensitive of the materials sought, and it is also the least likely to be of assistance on the issue of credibility of the Complainant.

That is so because information obtained by police investigators or social workers from this child is not likely admissible because of issues of relevance, hearsay, or competence of the child to testify, in the event that relevance could be established. [ 14 ] As this is a Stinchcombe application, the question is of mixed fact and law whether police records relating to investigations of persons directly involved in the present proceeding, and touching upon issues in that matter should be disclosed as a matter of course.

The fact that the Regina Police Service, supported by the Crown, take a contrary view, and have not complied with disclosure, does not create an obligation for the Defence to proceed under O’Connor . The Crown/police position cannot preclude the question of whether the disclosure sought falls within the Stinchcombe regime, as set out in paragraph 6 above. In some instances police files relating nominally to another person may be relevant as first party disclosure where they involve investigation of persons and subjects relating directly to the proceeding for which they are sought.

This must, of course, not be conjectural and amount to a ‘fishing expedition’ on the bare possibility that something relevant may exist. [ 15 ] However, the Complainant will be a witness, and statements and information given by her in another closely related matter may have relevancy and meet the Stinchcombe rule of being “any information in respect of which there is a reasonable possibility that it may assist the Accused in the exercise of the right to make full answer and defence.” [ 16 ] The relationship with the boyfriend may also be a possible subject for examination of the Complainant, as would any information concerning an improper approach by that person.

It is possible that from information in the police files, the Defence might wish to subpoena the boyfriend to determine if he has any information relevant to the subject matter of the argument in the context of which the offences are alleged to have been committed, and that information might possibly impact on the credibility of the Complainant. [ 17 ] At paragraph 62 and following in the Defence Brief, the Accused presents the arguments for viewing the information in the two investigations.

The McNeil case dealt with police disciplinary records that might contain information that would discredit a police witness, and this was not considered third party disclosure, but directly relevant to the case under consideration. The Saskatchewan case of R. v.

Oliver , 2013 SKQB 187 , dealt with a similar issue of when information in the possession of a police agency that they objected to disclosing may still be subject of an order of a court within the Stinchcombe rules. [ 18 ] In Oliver , supra , Barrington-Foote J. reviewed at paragraphs 29, and following, numerous cases relating to police disclosure regarding persons or events other than the one being prosecuted.

He noted that the Crown has a positive duty to obtain and review police material that may be in controversy and disclose it where it relates to a relevant issue in a case—see paragraph 32. [ 19 ] As a result, I am satisfied that the records sought by the Accused meet the test of relevancy for first-party disclosure, except as they may relate to the child involved. Police files relating to actions by the two adults involved do not have an expectation of privacy as they are closely related to the subject of the present proceeding, and issues of credibility are not conjectural or tangential.

Material from the two investigations identified in the application will be disclosed as they relate to the two adult persons. [ 20 ] However, materials with respect to the child involved, particularly where such investigations pertain directly to her in interviews, psychological testing, and other procedures will not be disclosed.

The privacy expectations of the child are quite different from the adults, and information obtained from them would not have the same immediacy to the issues at hand as would information regarding the adults involved directly in the incident investigated. [ 21 ] It will be necessary for the Crown to obtain material from the Regina Police Service, and review this material and disclose what comes within this ruling and the law applicable. Unlike an O’Connor application, the Court does not have an active role in this.

It is hoped, however, that further controversy will not occur that requires intervention of the Court. This order is made under the Canadian Charter of Rights and Freedoms , and in particular, with respect to the right to a fair trial, for which a remedy may be ordered upon breach of that right.

[ 22 ] The purpose of providing this information is to allow the Defence to conduct full and proper cross-examination of the Complainant, and any other witness that the Crown might call, and to otherwise prepare their case, and this should guide disclosure as it relates to the Crown witness and her boyfriend. Dated at the City of Regina, this 15 th day of October, 2013. _________________________ B. Henning, J