r v. CLIFTON MAXWELL, 2022 QCCQ 6772

R. c. Maxwell 2022 QCCQ 6772 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No: 500-01-223358-216 DATE: July 21, 2022 ______________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

CLIFTON MAXWELL DARRYL REDDICK Accused ______________________________________________________________________ DECISION REGARDING VETTING (VD2-2) ______________________________________________________________________ OVERVIEW [ 1 ] Clifton Maxwell and Darryl Reddick are standing trial jointly, in relation to offences relating to the possession of a firearm, which was found by the police in the car driven by Reddick [1] and in which Maxwell was a passenger. [ 2 ] Before the trial, Reddick filed an Application to exclude evidence, pursuant to Sections 8, 10b) and 24(2) of the Canadian Charter of Rights and Freedom.

In short, Reddick is asking the Court to exclude the firearm from the evidence admissible at trial for the following two reasons: (1) the police violated his rights provided for by

Section 8 of the Charter by carrying an illegal inventory search of the car which he was driving; and (2) the police violated his rights provided for by

Section 10b) of the Charter when they fail to facilitate his access to counsel, as soon as practicable. [ 3 ] On March 9, 2022, Reddick’s and Maxwell’s trial began. The Court opened a voir dire to hear the evidence regarding Reddick’s Application to exclude evidence. Officer Plouffe testified on the circumstances of the police intervention that led to interception of the car driven by Reddick. He explained that while the police intervention was ongoing, he consulted a police database and sought information concerning Reddick. The information consulted included Reddick’s “IPPE” [2] .

At that point, the defence asked for disclosure of the information contained in Reddick’s IPPE and as a result, Officer Plouffe’s testimony was suspended, pending the disclosure of the information. [ 4 ] On March 10, 2022, the prosecution disclosed the information contained in Reddick’s IPPE, with some information redacted [3] . On April 19, 2022, some of the redacted information was disclosed to the defence [4] .

As a result of the foregoing, the redacted information contained in Reddick’s IPPE is now limited to the following: “** PERSONNE SURVEILLÉE **”; “** PERSONNE SURVEILLÉE ** OPT: 2”; “NE PAS RÉVÉLER AU SUJET L’INTÉRÊT QU’ON LUI PORTE”; LIAISON CORRECTIONNELLE”; and “PROGRAMME DE SURVEILLANCE ACCRU” [5] . [ 5 ] The prosecution refused to disclose the information that Reddick was the subject of an “increased surveillance program” for two reasons: because it is not relevant and because it is protected by a public interest privilege.

The defence is now asking the Court to review the prosecution’s decision regarding the disclosure of this information. Thus, the Court has to decide the following questions: is the redacted information relevant, pursuant to the Stinchcombe [6] test? Is the information subject to the common law public interest privilege and if so, should it be disclosed? ANALYSIS The first question: is the information relevant pursuant to the Stinchcombe test? [ 6 ] The parameters of the prosecution’s disclosure obligation are well established.

The prosecution has an obligation to disclose all relevant information in its possession relating to the investigation against the accused, unless it is privileged or unless its disclosure is otherwise governed by law. This obligation is not limited to information that the prosecution intends to adduce in evidence against the accused. It also includes 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 [7] . [ 7 ] The criterion of relevance is described as follows: information is relevant if it can reasonably be used by the defence in meeting the case presented by the prosecution, in advancing a defence or in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence [8] . If there is a doubt regarding the relevance of the evidence, the prosecution must disclose that evidence [9] . In short, the criterion of relevance is extremely low when it comes to the prosecution’s obligation to disclose evidence.

That being said, as extensive as the notion of relevance is, it is not assessed in the abstract. Relevance must be assessed in relation to the charges laid or the live issues raised at trial [10] . [ 8 ] There exist prosecutorial discretion with respect to disclosure, but that discretion can be subjected to review by the Court.

In such a circumstance, the prosecution must justify its refusal to disclose the information by, for example, establishing that the information is clearly irrelevant or that it is subject to a privilege [11] . [ 9 ] In his Application to exclude evidence, Reddick alleges that his detention by police actually began before he was arrested. As a result, he argues that his right to retain and instruct counsel without delay, provided for by

Section 10b) of the Charter , was triggered before he was arrested by the police. Thus, the circumstances of the intervention, including interactions between Reddick and the police, appears to be of potential relevance to one of the live issues raised at trial, that is whether Reddick was detained before his arrest. [ 10 ] In this regard, Officer Plouffe was questioned on the unfolding of the intervention. For example, he testified that although security is always a concern, he did not have specific concerns for his security during the intervention because of Reddick’s and Maxwell’s behaviour.

Both were calmed and cooperative. Officer Plouffe confirmed that he was aware of the information contained in Reddick’s IPPE, including the redacted information, while the police intervention was ongoing. Officer Plouffe was asked questions on some of the unredacted information contained in Reddick’s IPPE. For example, he was asked if he was aware of a warning relating to a risk of violent behaviour by Reddick.

He was also asked if this information impacted how he assessed the risk of the ongoing intervention. [ 11 ] As stated above, the redacted information refers to the fact that Reddick was, at the time of the police interception, subject to an “increased surveillance program”. In light of the live issues raised at trial regarding the question of detention, and given the testimony of Officer Plouffe up to now, it is possible to see how the redacted information could potentially be used by the defence, minimally to continue the line of questioning mentioned above.

As such, the redacted information meets the low-threshold of relevance set out by Stinchcombe as far as the issue of detention is concerned . [ 12 ] That being said, there is an additional issue to address regarding relevance of the redacted information. In his Application to exclude evidence, Reddick alleges that the inventory search of the car was illegal and therefore constituted a violation of the rights guaranteed by

Section 8 of the Charter . Reddick does not specifically allege that the inventory search was conducted for an “improper” or “oblique” motive. That being said, the motivation behind the inventory search appears to be a live issue, in light of the evidence presented in the course of the voir dire [12] . Thus, the redacted information could also potentially meet the low-threshold of relevance set out by Stinchcombe , as far as this issue is concerned.

The second question: is the information subject to the common law public interest privilege and if so, should it be disclosed? [ 13 ] The essence of the common law public interest privilege lies either in national security or in the effective conduct of government [13] . In short, it involves a claim that the information should be kept secret because its disclosure is contrary to public interest. [ 14 ] Public interest privilege requires the balancing of competing values and interests: the public interest that warrants secrecy and the public interest that warrants disclosure of the information.

It is a case-by-case privilege [14] , which means that it involves a contextual analysis that takes into consideration all of the relevant circumstances of the specific situation in which it is raised. In short, the need for secrecy may vary with the particular public interest sought to be protected and the facts of the specific case in which it is alleged [15] . [ 15 ] Courts have recognized that it is in the public interest to maintain an efficient police force and to promote the effective implementation of the criminal law [16] .

For example, disclosing the use of a particular technique to investigate a particular crime may undermine the use of that technique in a current investigation or in future investigations. Consequently, not disclosing information regarding a particular investigative technique may promote the greater societal interest of the effective investigation of criminal activity. The same can be said for not revealing the existence of an ongoing police investigation. With that said, one should keep in mind that there is no “freestanding privilege” attached to investigative techniques or ongoing investigations.

They are rather subsets of the public interest privilege [17] . [ 16 ] In criminal matters, public interest privilege must be weighted while taking into consideration the accused’s right to make full answer and defence, a right which is guaranteed by

Section 7 of the Charter and which is at the core of our criminal justice system. Otherwise said, non-disclosure of the information subject to privilege will be ordered only if the public interest in keeping the information secret outweighs the accused’s right to make full answer and defence [18] . [ 17 ] The party invoking the public interest privilege has the onus to prove that the privilege applies [19] . In criminal matters, the prosecution is often the party invoking the privilege and thus often bears the associated burden.

This is coherent with the principle that governs the prosecution’s obligation to disclose information. Indeed, and as stated above, the prosecution may be called upon to justify its refusal to disclose otherwise relevant information to the defence by, for example, proving that the information is subject to a privilege, such as the public interest privilege. [ 18 ] Having said this, it is important to underline that public interest privilege is not a “Crown” privilege. The Court may itself raise the possible application of the privilege or may request additional information to decide on the issue.

In the end, the Court has the responsibility to weigh all the relevant circumstances of the specific situation and decide on the application of the privilege [20] .

[ 19 ] The claim for privilege must be rooted in evidence and not just on a general assertion of a possible disadvantage [21] . In a general fashion, the proper manner to raise the public interest privilege is by an affidavit signed by a Minister or, where appropriate, by a public servant such as a police officer. T he affidavit should be as precise as possible in identifying the interest sought to be protected and the impact that its disclosure could have [22] . The documents that the prosecution claims are subject to the privilege should be provided to the Court for review [23] .

The parties are then entitled to lead evidence and make submissions on the issue [24] . [ 20 ] In the matter at hand, the Court, with the agreement of the parties, adopted a procedure inspired by the R. v . Carey [25] , R. v . Garofoli [26] and R. v . Basi [27] cases: (1) the document that the prosecution claims is subject to the privilege, the unredacted IPPE, was provided to the Court for review [28] ; (2) the prosecution filed affidavits [29] and made arguments [30] in ex parte hearings; (3) the defence was provided with a limited judicial

summary of the ex parte proceedings; (4) the defence was entitled to make submissions. [ 21 ] The evidence adduced by the prosecution during the ex parte hearings can be summarized as follow. The Quebec Correctional Services has implemented a program called “Programme de surveillance accrue” or “PSA”.

This “increased surveillance program” aims at preventing the recidivism of offenders that present a high risk of violent behaviour by optimizing the exchange of sensitive and confidential information between the Quebec Correctional Services and the police forces. [Redacted] [31] [32] . [ 22 ] From the evidence tendered by the prosecution, the Court understands that the Quebec Correctional Services decided to include Reddick in the PSA upon his release from detention in 2021 [33] .

On or about July 8, 2021, sergeant-detective Pascale Rioux of the SPVM received a document from the Quebec Correctional Services PSA program advising her that Reddick would be released from detention on June 20, 2021, and providing her with information on Reddick. [Redacted] [34] . [ 23 ] Sergeant-detective Rioux requested that the PSA information that she received, be entered in the police database so that police officers who eventually investigate Reddick would be aware of the situation [35] .

She also requested that additional information, described at paragraph 7 of her affidavit, be included in the SPVM database [36] . Reddick’s IPPE was updated with all of this information which now appears at pages 12, 13 and 14 of Reddick’s IPPE, with the mention that it is in force until July 8, 2022 [37] . [ 24 ] In seeking that this information be included in Reddick’s IPPE, sergeant-detective Rioux was carrying out her duties as an intelligence officer with the SPVM. She was not investigating Reddick and in fact, she has not participated in a criminal investigation involving Reddick.

Her actions were primarily administrative in nature [38] . [ 25 ] In its written observations, the prosecution states that the existence of the PSA program is not confidential per se but the fact that a specific individual, such as Reddick, is or was included in this program, should remain confidential [39] .

Otherwise said, the prosecution invokes the public interest privilege only insofar as it concerns the specific inclusion of Reddick in the PSA as, disclosure of this information could have a detrimental impact on the efficiency of the program. [ 26 ] [Redacted] [40] . [ 27 ] The Court also asked the prosecution to explain why the information added to Reddick’s IPPE by sergeant-detective Rioux had an “expiry date” of July 8, 2022, and whether that expiry date had an impact on the privilege claimed.

The prosecution indicated that it did not, relying on an additional affidavit from sergeant-detective Rioux which explains that, in a general fashion, the information that someone is included in the PSA appears in someone’s IPPE for a period of [redacted]. [ 28 ] The first question that the Court must answer is whether the redacted information that Reddick was included in the PSA when he was released from detention, falls within the realm of the public interest privilege.

As stated above, the PSA aims at optimizing the exchange of sensitive and confidential information between the Quebec Correctional Services and the police forces regarding an offender that presents a high risk of violent behaviour to prevent recidivism and therefore promote public safety in general. Thus, at first glance, the redacted information falls within the realm of the public interest privilege. [ 29 ] The second question that the Court must answer is whether the public interest privilege outweighs Reddick’s right to make full answer and defence in this specific case.

The answer to this question is no, the public interest privilege claimed by the prosecution does not outweigh Reddick’s right to make full answer and defence. [ 30 ] First, the evidence tendered by the prosecution regarding the impact of disclosing the fact that Reddick was included in the PSA is a generalized assertion. The evidence states, in short, that disclosing this information would be detrimental to the PSA’s effective application, without providing additional details.

The Court does not know: how the program works in general; how the information provided by the Quebec Correctional Services is usually used by police forces; how the information helps to prevent recidivism; why was Reddick included in the program; how the information concerning Reddick is useful to police forces; how this information helps to prevent recidivism? [ 31 ] [Redacted]. [ 32 ] Third, as previously explained, the redacted information could be of importance for the defence. The information is relevant to at least one of the live issues raised at trial, the issue of Reddick’s detention.

The information could also be relevant to another potential live issue: whether the inventory search was conducted for an “improper” or “oblique” motive. While it is true that the unredacted information allows the defence to explore these live issues, the fact remains that the redacted information could potentially be of relevance to the defence. [ 33 ] Thus after having balanced the competing values and interests at play in this specific case, the Court finds that the privilege does not outweigh the right to a full answer and defence. The redacted information must be disclosed to the defence.

CONCLUSION The Court DECLARES that the public interest privilege does not justify the non-disclosure of the redacted information. __________________________________ MÉLANIE HÉBERT, J.C.Q. Me Jean-Philippe Mackay Director of Criminal and Penal Prosecutions For the Prosecutor Me Clara Daviault For the accused Darryl Reddick Me Patrick Davis For the accused Clifton Maxwell Hearing dates : March 9, 10, April 20, 25, 29, May 11, 13, 20, and June 13, 2022