R. v. S.P.W. Date:, 2017 BCPC 320

Citation: R. v. S.P.W. Date: 20171030 2017 BCPC 320 File No: 34859 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.P.W. REASONS FOR JUDGMENT ON DEFENCE UNDERTAKING OF THE HONOURABLE JUDGE K. L. WHONNOCK Counsel for the Crown: Ms. Pace Counsel for the Defendant: Mr. Los Place of Hearing: Williams Lake , B.C. Date of Hearing: October 4, 2017 Date of Judgment: October 30, 2017 BACKGROUND [ 1 ] S.P.W. stands accused of two counts, the first allegation relates to touching for a sexual purpose, a young person, contrary to

section 153 of the Criminal Code . [ 2 ] The second allegation is that S.P.W. sexually assaulted a young person contrary to

section 271 of the Criminal Code . Crown is proceeding by indictment. The Information was sworn on July 11, 2017. [ 3 ] No arraignment or election has been made by S.P.W. yet as I understand it as S.P.W. seeks a ruling from the Court prior to election. S.P.W. cites R v. Little, 2001 ABPC 13 at paragraph 25 and 31 for the basis of this decision. [ 4 ] Crown Counsel has asked Mr. Los, counsel for S.P.W., to sign an undertaking verbally on August 22, 2017 and in writing on August 24, 2017. [ 5 ] Mr.

Los has received paper disclosure materials including transcripts of the electronic disclosure but has not been provided with disclosure materials by way of electronic format. [ 6 ] Crown counsel has indicated to S.P.W. his counsel is required to first sign the undertaking prior to being given the materials in an electronic format. [ 7 ] S.P.W. has applied to this Court that his Charter rights have been breached, specifically

section 7, the right to make a full answer and defence. [ 8 ] S.P.W. submitted documents called “Application Materials” but has not filed an affidavit nor was there viva voce evidence at the hearing. On this aspect, I find the reasons of Judge Bayliff compelling at paragraph 13 of R. v . A.H., 2016 BCPC 323 (“ A.H. ”) where she stated: On this application counsel filed the proposed undertaking and a copy of the Crown policy on disclosure and made submissions, but neither affidavit nor vive voce evidence was tendered.

Although this is a Charter application and such decisions must be made on the basis of evidence and not in a vacuum, I am prepared to give a ruling in this case without affidavit or vive voce evidence. It appears the Supreme Court of Canada contemplated that applications of this sort would generally be dealt with on the basis of submissions alone. See Stinchcombe, at para. 23. And, of the cases I have reviewed, all except R. v. Little and R. v. Smith appear to have been decided on the basis of counsel’s submissions supplemented by reference to relevant documents, rather than on affidavit or vive voce evidence.

DEFENCE SUBMISSIONS [ 9 ] S.P.W. claims that Crown counsel has asked his counsel, Mr. Los, to sign an undertaking at Tab 1 of the Application Materials about August 24, 2017. Mr. Los has already signed the Crown Counsel Disclosure Notice with five applicable conditions contained on the first page of Tab 2 of the Application Materials, namely that: (

i) This disclosure is provided solely for the purpose of assisting the accused and his or her counsel in making full answer and defense in the criminal prosecution presently before the court. The material must not be used for any other purpose. (ii) Disclosure materials are not public materials and may contain private or confidential information.

Any request for access to this disclosure for any other purpose other than that stated in paragraph 1 should be referred to the investigating agency. (iii) The disclosure material is not to be circulated to any other person or organization except as noted below. (iv) Where it is necessary to provide any portion or a copy of any portion of this disclosure material to another person or organization for the purpose of assisting in the preparation of the defense, counsel or the accused must convey the conditions set out in paragraphs 1 through 3 to that person or organization before releasing material. (

v) The conditions of confidentiality set out above apply to any further or additional disclosure provided in relation to this prosecution. [ 10 ] S.P.W. submits that Crown counsel asked Mr. Los to sign an alternative draft undertaking on September 27, 2017 at Tab 3 of the Application Materials. Specifically here Crown is asking defence counsel to sign an undertaking as follows: 1.

I Christopher Los, counsel for the accused, S.P.W. (“the accused”) give my professional undertaking to be bound by the undertaking set forth in paragraphs 2 and 3 below as a condition precedent to receiving from Crown Counsel the following video/audio/documents (“the Material”): a. CD [complainant] x 2 / [witness]; b. DVD Audio Video [complainant]; c. DVD Audio/Video Followup [complainant]. 2.

I UNDERTAKE that these above-named materials will only be used for the purpose of representing and defending the Accused on Information # 34859-1, or any subsequent charges, informations or indictments arising from the RCMP investigation (referred to in this Undertaking as “Information #34859-1”) and not for any other purpose, collateral or otherwise, unless specifically permitted by the terms of this undertaking. 3. I FURTHER UNDERTAKE as follows:

a) That I will not relinquish custody of the Material to anyone other than to those assisting me in the preparation of the defence of my client on Information # 34859-1.

b) That I will not permit the Accused to remove the Material, or a copy or image of the Material, from my office or from any other

location designated by me.

c) That I will personally, by hand or bonded courier, immediately return the Material to the Crown Counsel office at 540 Borland Street, 4th floor, Williams Lake, British Columbia, in the event that I am dismissed by the client as his counsel or for any other reason cease toact as counsel for my client on Information # 34859-1 or from representing my client on any subsequent appeals or other legalproceedings arising from Information 34859-1. [11] S.P.W. has argued that his counsel should not sign any undertaking with respect to the disclosure materials as they are alreadysubject to the already mentioned five conditions in the Crown Counsel Disclosure Notice at Tab 2.

In the alternative, S.P.W. argues thatthere should not be more conditions than what the Honourable Judge Bayliff ordered in the A.H. case (which is Tab 4 of the ApplicationMaterials).

The wording of that undertaking was: [Defence counsel] will not permit the accused to remove the complainant’s statement, or a copy or image of the complainant’s statement,from his office or from any other location designated by him. (‘The complainant’s statement’ is defined as: * the video and audio recordings of the complainant’s statement to the RCMP * the written transcript of the complainant’s statement, and * express references in the Report to Crown Counsel, officer’s notes and reports, to the contents of the complainant’s statement). [12] S.P.W. submits there are very serious implications and repercussions of counsel signing an undertaking which is the mostserious form of promise that a lawyer can provide in the course of his or her professional career and is governed by the Law Society ofBritish Columbia.

Further, defence argues that there are additional common law, legal and ethical limits on defence counsel. [13] Further defence counsel argued that crown has not justified the limitations or restrictions on the disclosure. [14] Additionally, defence argues that S.P.W. is not a youth such as the youth accused in the A.H. case.

S.P.W. is not subject to peerpressure in the same manner as the youth accused in the A.H. case. [15] S.P.W. has stated that the undertaking condition has interfered with the client-solicitor relationship by putting conditions ontheir communications and with S.P.W.’s ability to provide a full answer and defence by limiting the lawyer’s ability to prepare for trial. CROWN SUBMISSIONS [16] Crown counsel states that defence counsel has received the materials in a paper format; the issue today is disclosure in anelectronic format.

What is at stake here are two DVDs, both statements of the complainant, a young person, and one CD of a civilianstatement. [17] Crown contends that their concern as in the A.H. case is the inadvertent dissemination of electronic disclosure. [18] Crown counsel has argued that contrary to defence submissions when they compared the accused being of adult age ascompared to the youth accused in the A.H. case, the real issue is that here as in the A.H. case both the complainants are of a young age,under the age of 18 and that is the most important factor. [19] Crown counsel has admitted that they initially sought the undertaking from Mr.

Los in Tab 1 but then asked Mr. Los to sign theundertaking contained at Tab 3 of the defence Application Materials. Crown counsel argues that the Tab 3 undertaking is less restrictivethan the one that Judge Bayliff ordered in the A.H. decision. [20] Crown counsel has submitted that in this particular case, at the time of the alleged offence, the complainant had been in aCadets program where the accused was a trainer and then an employee at the Cadets program. The young person, having conflict in herhome, had moved into the home of the accused which he shared with his wife and children.

Crown therefore alleges that the accusedwas in a significant position of authority over the complainant and that there are significant privacy concerns at stake. [21] Crown further argues that the undertaking does not undermine the solicitor-client relationship as the accused and his lawyeralready have the disclosure and transcripts of the CD and DVD so the undertaking relates only to the digital format of disclosure. THE LAW [22] In the R. v. Papageorgiou, (ON CA), at paragraph 8, the Ontario Court of Appeal held that: The Crown's disclosure obligations in a criminal case are well-established.

The Crown has a legal duty to disclose all relevantinformation to the defence. That duty, however, is not absolute. The Crown retains a discretion concerning the withholding ofinformation and the timing and manner of disclosure, and regarding the relevance of information.

The Crown's discretion in thatconnection is reviewable by the trial judge, who must be guided by the controlling principle that, unless non-disclosure is justified by thelaw of privilege, information should not be withheld from the defence if there is a reasonable possibility that the withholding will impairthe right of an accused to make full answer and defence: R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, 18 C.R.R. (2d)210, at paras. 11 and 19-21, per Sopinka J. BURDEN OF PROOF [23] The burden of proof at this hearing rests with crown counsel.

Crown counsel was seeking the undertaking from defencecounsel before providing the disclosure in a digital format. I quote from R. v. Little, 2001 ABPC 13 at paragraph 23:

In the normal course of a pre-trial Charter application, the burden of proof or onus lies with the defence, on the balance of probabilities,to show that a Charter violation has occurred. However, in circumstances where the Crown has exercised its discretion over the mannerand timing of disclosure, the burden or onus shifts to the Crown to justify its actions, R. v. Stinchcombe, supra at pp.9 and 12.

This isconsistent with the guarantee of rights and freedoms of s.1 of the Charter that the burden of proof or onus of proving that a limitation ona right or freedom is reasonable and demonstrably justifiable rests with the party seeking to uphold the limitation or restriction. IMPLIED UNDERTAKING [24] I am satisfied that there is an implied undertaking not to use disclosure except for the purposes of making a full answer anddefence in criminal proceedings. See R. v. Basi, 2011 BCSC 314 at paragraph 78, and in R. v. Smith, (SKQB), (“R. v. Smith”) and R. v.

Little, 2001 ABPC 13 at paragraphs 32-38. [25] This is echoed in the recent decision of the Honourable Justice Edwards in R. v.

Mossaddad, 2017 ONSC 5520 at the lastsentence of paragraph 38: I am satisfied, having reviewed the jurisprudence across this country, that the time has come for this court to recognize that whether ornot the Crown disclosure provided to defence counsel or a self-represented accused is the subject of a written undertaking, that a deemedundertaking nonetheless would apply such that the only basis upon which the Crown disclosure may be used would be in the context ofproviding a full answer and defence to the criminal proceedings.

PRIVACY CONCERNS INVOLVING SEXUAL OFFENCES AND YOUTH COMPLAINANTS [26] I therefore concur with defence counsel that there are implied undertakings which exist with respect to crown disclosure incriminal proceedings. The issue then arises, in cases dealing with sexual offences and youth complainants, are there further restrictionsin the form of defence undertakings which ought to apply? [27] I find persuasive the A.H. case in which the Honourable Judge Bayliff states at paragraph 21: In

summary, I conclude that the Crown has justified the need for an express undertaking in the case at bar for the following reasons:

(1) Defence counsel’s professional duties as it concerns the use of Crown disclosure bind counsel but they do not bind the accused;

(2) The sexual nature of the allegations, the young age of the persons involved and the fact that they are likely part of the same peergroup increases the risk that the accused will either advertently or inadvertently share the Crown disclosure with others who are not partof the defence team, in spite of his counsel’s cautions to the contrary; and

(3) The sexual nature of the allegations, together with the young age of the complainant, means that the privacy interest of thecomplainant in the video, audio and written form of her statement as well as in other disclosure materials that refer to her in connectionwith the sexual activity is high. [28] I note that the circumstances in the A.H. case are very similar to the case before me in that there is a young complainant who isnot of adult age, and there is an allegation of a sexual offense, and there is a

Section 7 application regarding the manner of crowncounsel’s disclosure. The dissimilarity as pointed out by defence counsel is that the accused in this instance before me is of adult age. Inmy view, in this circumstance, I find it compelling that the use of an undertaking concerning the limitation of crown disclosure wouldbind defence counsel however it would not bind the accused. Further, I find that the privacy interests of a complainant who is a youngperson is very high. [29] In the decision of R. v. Little, 2001 ABPC 13 (R. v.

Little) at paragraph 31, the court found that each case must bedecided upon its own merits and I also adopt that approach. However, in the R. v. Little case, the court found that crown disclosure wasto be provided to defence counsel with no conditions. I distinguish this case before me from the R. v. Little case on its facts such as thevery different alleged offences involved. In the R. v.

Little decision in paragraph 54, the court found that there was no evidence tosupport concerns with respect to public safety, the security or privacy of witnesses or victims, or the need to protect the integrity of theadministration of justice. In fact the court goes on at paragraph 58 and distinguishes the impaired driving charges from offencesinvolving sexual offences: The Crown cited R. v. Smith, supra; R. v. Lucas (J.D.) (1996), (SK CA), 137 Sask. R. 312 (C.A.); R. v. Mills (1999), (SCC), 139 C.C.C. (3d) 321 (S.C.C.) and R. v.

Mason (1998), (ON CA), 106 O.A.C. 158 (C.A.) ascases in which the courts have applied a balancing of competing interests approach in favour of the Crown. I agree with these cases andthat the Crown has an obligation to exercise its discretion regarding the use of disclosure materials to protect such interests. However,these cases dealt with conditions or restrictions on disclosure in cases involving sexual offences and balancing the rights and interests ofthe accused to make full answer and defence with the rights of privacy and protection of complainants and witnesses.

These cases aredistinguishable on their facts from this case. [30] In other words the court in R. v. Little found that with cases involving sexual offences, the balancing of competing interests, thatis the restriction on disclosure, was outweighed by the privacy and protection of the complainants. [31] I find the words of Justice Abella of the Ontario Court of Appeal as she then was in R. v. Stuckless, (ONCA), to be appropriate here: I am unable to find a single reported appellate decision in recent years which does not view the sexual abuse of children as extremelyserious, whether or not there is penetration….

Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It iscoercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless.

[ 32 ] R. v. Stuckless is a sentencing case. However, I think the very strong wording used in the case is helpful analysis in coming to a determination that the privacy interests of the young complainant are very high as compared to the rights of the accused to make a full answer and defence. The impact on the accused’s rights in this situation of the requirement of a written undertaking are minimal as set out in the R. v. Smith case. [ 33 ] I note that the accused in the R. v.

Smith case is of adult age and the two complainants at the time of the offence are 15 years old and 13 years old, similar to the young age of the complainant in the case before me. Also similarly, the accused has applied for an order that his Charter rights were breached by the requirement that his counsel sign an undertaking. And similarly, the accused in R. v. Smith asks the court for the disclosure of crown counsel materials to be provided with no conditions. Additionally, there is no evidence in R. v. Smith that the accused is the sort of person who might wrongfully use the disclosure materials.

Likewise, here there is no specific evidence of S.P.W. being a person who might disseminate the materials. Rather it is the nature of the sexual offences against a young person, whose privacy interests are very high, and the evolving nature of technology and the fear of inadvertent disclosure by the accused that the Crown counsel has submitted to play a role in this case. [ 34 ] I note that here Crown counsel is only seeking an undertaking with respect to the digital disclosure, that is two DVDs and one CD. The nature and extent of the restrictions on disclosure is a critical aspect to this type of application.

The degree to which, if any, the restrictions sought by Crown impede on the ability of the accused to make full answer and defence are critical factors. [ 35 ] In coming to my determination in this case, I find the paragraphs by the Honourable Justice Walker in R. v. Smith in the first paragraph after the heading “Conclusion” (unnumbered paragraphs) to be compelling here: I find that evidence does not show how disclosure, on the trust condition in question, would prevent the applicant from making full answer and defence to the charges he faces.

I find that the interest of the public and the complainants in having the statements and videotapes narrowly disseminated is clearly shown. Providing the statements and videotapes to counsel for the accused on a trust condition that counsel retain them in his possession, serves the dual purpose of providing detailed disclosure while ensuring that the materials are not disseminated more widely than is necessary for the fairness of the trial. The right to disclosure and the right to make full answer and defence is not the right to unconditional disclosure.

The evidence does not establish that the accused's right to make full answer and defence is impeded by the requirement that his counsel execute an undertaking with respect to the disclosure provided. The conditions apply only to victim's statements, videotapes and references to victim's statements - obviously matters of some sensitivity. The Crown is not withholding disclosure. The information contained in those statements and videotapes is available to the accused and retained experts for use in preparing his defence. The accused will know the substance of the complaints and, therefore, the case he has to meet.

In the circumstances of this case, there is no danger to the fairness of the trial by virtue of the trust condition attached to disclosure. Conclusion [ 36 ] I find that it is not a violation of S.P.W.’s

Section 7 Charter rights for Crown counsel to require that Defence counsel enter into an express undertaking concerning the handling of the disclosure materials. [ 37 ] I find that the undertaking as proposed by Crown counsel at Tabs 1 and Tabs 3 are unduly restrictive.

I find the undertaking as proposed by the Honourable Judge Bayliff in the A.H. case to be persuasive as set out earlier in paragraph 11 of this decision. [ 38 ] Here I note that Crown counsel has released the Report to Crown counsel, police officer notes and police reports and the written transcript of the complainant’s statement as well as a written transcript of another witness’ statement. These materials will still remain under the express undertaking as contained in the five clauses in Crown Counsel Disclosure Notice set out in Tab 2 and set out in this decision at paragraph 9.

Accordingly, the undertaking will only apply to the digital forms of disclosure as follows: [Defence counsel] will not permit S.P.W. to remove the electronic disclosure that is the CD of D.F. or two DVDs of the complainant’s statements, or a copy or image of the electronic disclosure, from his office or from any other location designated by him. ____________________________ K. L. Whonnock Provincial Court Judge