R. v. Noel de Tilly, 2015 BCSC 1500

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Noel de Tilly, 2015 BCSC 1500 Date: 20150617 Docket: 57692-3 Registry: Chilliwack Regina v. Jessica Rose Noel de Tillyand Michael Henry Speer Before: The Honourable Mr. Justice Verhoeven Oral RulingRe: Disclosure Application Counsel for the Crown: S. PriceCounsel for the Accused: Noel de Tilly: Counsel for the Accused Speer: R. Dhanu R. Mansoori-DaraPlace and Dates of Hearing: Chilliwack, B.C. April 28-30, 2014;May 1-2, 2014;May 5-8, 2014 New Westminster, B.C. June 15-17, 2015Place and Date of Judgment: New Westminster, B.C.

June 17, 2015 [1] THE COURT: An application has been brought on behalf of the accused Mr. Michael Henry Speer, which is joined in by theco-accused, Ms. Noel de Tilly, for disclosure of information from the Crown. The application is brought in the midst of the second voirdire being held in this matter. [2] The precise wording of the application is as follows: Compelling the Crown to comply with its disclosure obligations pursuant to R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R.326; and disclose the nature of the privilege it relies on to justify non-disclosure. [3] The charges in question relate to an alleged marihuana grow operation located in the vicinity of Chilliwack. There are fourcounts in the Indictment. Mr. Speer is charged under all four counts. The counts are: 1. Production of cannabis marihuana; 2. Possession of a controlled substance for purposes of trafficking; 3. Possession of a controlled substance, codeine, for purposes of trafficking; and 4.

Possession of a loaded prohibited forearm, to wit: a 12-gauge shotgun with what I take to be a shortened barrel, in other words, asawed-off shotgun. [4] Ms. Noel de Tilly is charged with Counts 1 and 2, only. [5] The charges relate to events that occurred on April 20, 2011. On or about that date a Judicial Justice of the Peace issued asearch warrant based upon an Information to Obtain (“ITO”) prepared by Constable Westra of the Agassiz RCMP. [6] The defence has brought a number of Charter applications challenging the search warrant. I heard one such Charterapplication previously and ruled on it.

That was the first voir dire.

[ 7 ] We are currently in the midst of the second voir dire which also has to do with the validity of the search warrant. This is now a sub-facial challenge to the search warrant, in which Constable Westra, the affiant, has testified. [ 8 ] The hearing of this matter commenced more than a year ago on April 28, 2014 in Chilliwack with arguments, first, about disclosure, and then relating to voir dire No. 1 which as I said I dealt with. After some delays in due course the matter proceeded last year over the ensuing days into voir dire No. 2, and after some further delays, Constable Westra gave evidence.

His evidence-in-chief was exceedingly brief, in accordance with the Wilson decision of the Court of Appeal. Constable Westra was cross-examined at considerable length by Mr. Mansoori-Dara, counsel for Mr. Speer. Cross-examination then commenced by Mr. Dhanu, counsel for Ms. Noel de Tilly. [ 9 ] On Wednesday, May 7th the court adjourned for the day in the midst of the cross-examination of Constable Westra by Mr. Dhanu. However, the following morning, that is, Thursday, May 8, 2014, Mr. Price on behalf of the Crown advised me of a matter that he had discussed with defence counsel before court resumed.

He stated, “I am instructed to advise the Court that a matter has arisen that requires that I as the prosecutor and as an officer of the court conduct certain enquiries and ascertain some things before I can proceed.” [ 10 ] He further advised the Court that those from whom he took instructions were of the view that he would not be able to resolve the matters that needed enquiry and so on that day or the following day, and as a result, Mr. Price requested an indefinite adjournment.

He advised the court that the continuation of the voir dire would be “subsequently arranged as required.” There was no argument about the adjournment. The defence did not ask questions or question the need for the adjournment. As a result, I did not enquire further as to the need for the adjournment and in particular what necessitated it.

I think it fair to say that all parties took the matter on good faith, and when I say that, I include myself as the judge presiding, that the matter that required the adjournment was something serious and substantial. [ 11 ] There had previously been fairly lengthy discussion about further dates that would be required in any event for continuation. [ 12 ] The fact that Constable Westra was under cross-examination and therefore would be prohibited from speaking to Crown counsel during the requested adjournment was discussed.

I commented to the effect that there would be nothing to prevent him from refreshing his memory with respect to his evidence from notes. In fact, given the long delay which no one anticipated, transcripts have been produced of all the testimony, so those would have been available to Constable Westra to review prior to the resumption of the trial this year. [ 13 ] For reasons not known to me the adjournment became very prolonged. The matter was rescheduled to be heard before me as a continuation this past Monday, June 15, 2015.

At that time defence counsel advised the Court that in the meantime they have requested information from the Crown as to the need for the adjournment. [ 14 ] Mr. Price advised the Court that whatever it was that caused the adjournment was a matter of privilege. I was told only that “A question of privilege arose” according to my notes. I enquired as to the nature of the privilege; in other words, what was the nature of the privilege the Crown relied upon. In other words, whether the privilege would be solicitor/client privilege, or litigation privilege, or informant privilege, or something else.

I was advised that that information could not be revealed. [ 15 ] In the result the matter that arose that required the adjournment is completely unknown to me and of course unknown to defence counsel. [ 16 ] Mr. Price acknowledges that in May of 2014 during a break in cross-examination Constable Westra approached Crown counsel and raised the matter, whatever it was, which it is said required an enquiry by the Crown. So it appears something arose during cross- examination of the officer.

Really that is all that is known about it. [ 17 ] Defence counsel points out that it seems that Constable Westra had a conversation with Crown counsel while under cross- examination. No prior leave was granted to allow this. [ 18 ] The current voir dire again has to do with the validity of the search warrant. I do not have the submissions of defence counsel yet because the voir dire is not concluded, but my understanding is that questions of credibility, particularly of Constable Westra, are at the heart of the arguments to be made by the defence. [ 19 ] In response to my question Mr.

Price has assured me the matter does not relate to the credibility of Constable Westra. Mr. Price has also said that he is aware of the Crown's obligations under R. v. Stinchcombe , and in his view he has complied with his obligations. However neither the defence nor I have any means to test these assertions. [ 20 ] The Crown also argues that in the cases the defence relies on there is some sort of information or evidence by which the subject of disclosure can be identified at least in a generic way.

The Crown argues that in this case however there is really nothing which could be disclosed, if I understand the Crown’s argument correctly. [ 21 ] The reason for the adjournment was not enquired into a year ago because it simply did not seem necessary to do so. The Crown takes the position (recognizing the difficulty of this) that although the reason for the adjournment might have been relevant a year ago, it is no longer relevant today. [ 22 ] The relevant authorities are laid out well in the defence written submissions.

The authorities make it quite clear that the Crown cannot simply make a blanket assertion of privilege, without indicating even the nature of the privilege asserted. [ 23 ] Some of the authorities the defence relies on in that respect include, firstly, Hu v. British Columbia (Securities Commission) , 2010 BCCA 306 at para. 20 , for the proposition that the onus remains on the Crown to justify non-disclosure. The defence relies on the decision of Mr. Justice Romilly in R. v. Pereira , 2007 BCSC 1533 for the proposition that the general nature of the material itself should be disclosed.

[ 24 ] In R. v. Port Chevrolet Oldsmobile , an unreported decision of Madam Justice Gill of September 15, 2006, Docket X065157, New Westminster Registry, the circumstances were somewhat similar to those before me, in that in response to the application the Crown's position was that “it has complied with its disclosure obligation under Stinchcombe .” [ 25 ] As to that, Madam Justice Gill said at para. 14: [14] The fundamental problem with the argument of the Crown seems obvious.

The Court cannot review whether the Crown has complied with its obligation to disclose when the Crown effectively remains silent stating only that it has complied. As was stated by Gow J. in R. v. Fabbro , [1992] B.C.J. No. 1764 for there to be a meaningful joinder of issue and a meaningful review, the Crown must make a sufficient description of the nature of the withheld information and a statement of the rule by which the non-disclosure is justified.

As matters now stand, there cannot be either a meaningful joinder of issue or a meaningful review nor has the Crown even suggested how that could occur. [ 26 ] The same situation is before me. [ 27 ] There are procedures potentially available to protect confidentiality of information, depending upon the nature of the information and the nature of the privilege that is asserted. The procedures potentially available include s. 37 of the Canada Evidence Act , R.S.C. 1985, c. C-5.

There may well be other procedures that could if necessary be adapted or may have to be fashioned depending on the circumstances, but without any information whatsoever at this point, there is no need to deal with those issues further. [ 28 ] I accept the proposition that it is insufficient for the Crown merely to say that whatever disclosure obligations exist have been complied with. I accept the proposition as well that as a bare minimum the nature of the privilege needs to be disclosed. [ 29 ] Of course Mr. Price may well be entirely right in saying that the matter does not relate to the officer’s credibility.

However the fact is that the circumstances tend to suggest otherwise, potentially. [ 30 ] The defence further argues that the party claiming privilege must do more than make a bare assertion; evidence must be adduced to substantiate the claim. In that respect, the defence relies upon R. v. Fast , 2009 BCSC 1671 , a decision of Mr. Justice N. Brown, and also R. v. Morra , [1991] O.J. No. 3657 . The Crown has adduced no evidence relating to this application. [ 31 ] As to the unavailability of a blanket assertion of privilege, the defence relies as well on Nova Scotia (Attorney General) v.

Royal & Sun Alliance Insurance Company of Canada , [2000] N.S.J. No. 402 at para. 24 . The quote there is as follows: [24] No authority has been cited to me to demonstrate that the law recognizes a blanket privilege claim over a spectrum of documents. … [ 32 ] The defence also relies on R. v. Edwardsen , 2015 BCSC 705 , a case having to do with informant privilege, and R. v. Belcourt , 2011 BCSC 1739 . [ 33 ] I accept that the onus is on the Crown to justify non-disclosure.

I accept that as a minimum the Crown ought to disclose the nature of the privilege that it asserts, and that there ought to be some evidence in support of the Crown's position. [ 34 ] I have a great deal of difficulty with the assertion that there really is nothing that can be disclosed. There must be in some sense information that goes to the issue. Whether it takes the form of an actual document of course is another question altogether, but some information was imparted, and some enquiry was consequently required, of such a serious nature that an adjournment was requested and granted.

I am compelled to reject the assertion that there is really nothing that could be disclosed, if that is indeed what is being argued. [ 35 ] In the result, I grant the application. I order that the Crown disclose the nature of the privilege it relies on to justify non- disclosure, and that the Crown provide some evidence concerning the position that it takes. [ 36 ] Yes, Mr. Price? [ 37 ] MR. PRICE: My Lord, I regret to say that I am unable to provide that information. My instructions are to decline. With all due respect, I am not doing that carelessly.

I guess that leaves the Court with the recourse of directing a stay of proceedings. A judicial stay, not mine. [ 38 ] THE COURT: All right. I think that is right. I do not see a choice here. [ 39 ] MR. PRICE: My Lord, I have one answer, I'm sorry. That is my answer to the question. [ 40 ] THE COURT: Yes. All right. These things sometimes happen. The Court has made an order and Mr. Price has informed the Court that the Crown is not in a position to comply with that order. I have already given the background for the need for the order.

In my view, the information that is required is something that has a likelihood of pertaining to the case and being of material relevance; that is, important. Otherwise of course I would not have made the order I just made, and I would not have adjourned from Monday to today to hear argument about the matter. [ 41 ] I am satisfied that this is a situation where regrettably, the only remedy available is a stay of proceedings under s. 24(1) of the Charter . I direct a stay of proceedings with respect to all counts in the Indictment. [ 42 ] MR.

MANSOORI-DARA : My Lord, will a formal form of order be drafted? [ 43 ] THE COURT : I have no idea what the normal procedure is there. So somebody should – [ 44 ] MR. PRICE: I'd say one of us would be drafting an order but I believe an order should be drafted.

[ 45 ] THE COURT : Clearly, somebody should be preparing an order, so in civil matters of course usually the successful party is left with the burden of preparing the order and circulating it and having it approved and so on, so I will direct one of defence counsel to prepare the draft order. Who is going to volunteer for that job? [ 46 ] MR. MANSOORI-DARA: Me. [ 47 ] THE COURT : Yes, all right. Mr. Mansoori-Dara if you would then prepare the order, please. [ 48 ] MR. MANSOORI-DARA: Thank you, My Lord. [ 49 ] THE COURT : We will adjourn. __________________ “Verhoeven J.”