R. v. Gillette, 2021 BCPC 144

Citation: R. v. Gillette 2021 BCPC 144 Date: 20210511 File No: 43157 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA WALDEMAR GILLETTE RULING ON DISCLOSURE APPLICATION BY DEFENCE OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: K.J. Elvin-Jensen Counsel for the Crown: T. Morgan Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Date of Hearing: May 7, 2021 Date of Judgment: May 11, 2021

Introduction: [ 1 ] Mr. Gillette is charged with assault causing bodily harm, uttering threats and assault using a weapon – all in relation to the complainant Mark Larsen. The allegations arise from an altercation on February 2, 2021. The trial is scheduled to commence before me on May 28, 2021. [ 2 ] Mr Gillette has brought what is commonly called an “O’Connor” application for production of records in the possession and control of a third party.

He initially sought an order that the RCMP disclose PRIME records relating to certain offences for which two Crown witnesses, Mark Larsen and Ginger Francis, were convicted. However, the PRIME records for Mr. Larsen have been purged and are no longer available. Therefore, this application relates only to the Crown witness, Ginger Francis. [ 3 ] Ginger Francis was notified by provincial Crown counsel that this application was taking place but she did not appear and chose not to retain counsel. Cst.

Vose of the RCMP was under subpoena but at the commencement of the application was released from that subpoena by me. [ 4 ] Crown counsel appeared on behalf of the Attorney General of Canada representing the interests of the RCMP. Provincial Crown counsel prosecuting this case also appeared. Both are opposed to Mr. Gillette’s application. Background and Allegations: [ 5 ] By way of background, Mark Larsen and his girlfriend Ginger Francis were, at the time, sharing an apartment with Ginger Francis’ sister Janet Francis and her boyfriend, Joshua Gillette.

There is conflicting evidence about what occurred as between Mr. Larsen and Ginger Francis on the one hand, and Mr. Gillette and Janet Francis on the other. Essentially, Mr. Larsen and Mr. Gillette each accuse the other of starting the fight between them. It is not disputed that during this fight, Mr. Gillette stabbed Mr. Larsen in the back with a knife. Mr. Gillette says that act was in self-defence. Mr. Gillette’s version of events is supported by the evidence of Janet Francis; Mr. Larsen’s by Ginger Francis. [ 6 ] Mr.

Gillette is expected to provide evidence that he and Janet Francis were in their bedroom and heard a fight occurring between Mr. Larsen and Ginger Francis. According to Mr. Gillette and Janet Francis, Mr. Larsen tried to or started to push Janet Francis and Mr. Gillette intervened, resulting in a physical fight between Mr. Larsen and Mr. Gillette. [ 7 ] Mr. Larsen’s version of events is completely opposite. He says that he and Ginger Francis previously told Mr. Larsen and Janet Francis to pack up their belongings and leave the apartment because they were being too loud and causing problems with the landlord.

At the time in question, Mr. Gillette and Janet Larsen were playing very loud music and they were told, in so many words, to leave immediately. According to Mr. Larsen, he grabbed Mr. Gillette to drag or push him out the door when Janet Francis pushed him to the ground. Mr. Gillette grabbed a knife, stabbed Mr. Larsen in the back and kicked him in the head approximately three times. Mr. Larsen was treated at the local hospital for a stab wound under his rib cage. [ 8 ] Mr. Larsen and Ginger Francis will also allege that Mr. Gillette pointed a firearm at Mr.

Larsen and threatened to kill him and told him “I’m not done with you”. [ 9 ] The credibility and reliability of all witnesses will be a significant issue in this trial. [ 10 ] Mr.

Gillette is not asking for all PRIME records pertaining to Ginger Francis but only the General Occurrence records relating to the following criminal convictions: • Assault with Weapon or Causing Harm Offence date February 3, 2015 (Conviction date November 2, 2015) • Mischief Offence date June 25, 2015 Conviction date November 21, 2016 • Assault Offence date April 8, 2016 (Conviction date November 21, 2016) • Mischief Offence date April 8 2016 Conviction date November 21, 2016 [ 11 ] Mr.

Gillette also requested PRIME records for a conviction for obstruction of justice on August 5, 2008 but those records have been purged and are not available.

[ 12 ] Mr. Gillette emphasizes that this is not a fishing expedition, but is a specific and controlled request for records that are logically probative of a central issue at trial – the credibility of Ginger Francis. He asserts that the offences and records can be used to undermine her credibility and impeach this witness. He also points to the history of violent offences (assault) which, during submissions, he says may involve domestic violence, supporting Mr.

Gillette’s position and version as to how and why events unfolded that night as they did. [ 13 ] He also says that the records pertaining to the mischief convictions may indicate that Ginger Francis is a witness who cannot be trusted and who is an unsavoury witness. The Legal Framework: [ 14 ] There is no dispute as to the law governing applications of this nature. [ 15 ] There are two steps in an application for third party records.

The first step requires the trial judge to determine if the applicant has established to the satisfaction of the court that the records sought are “likely relevant” to the proceedings. As stated by Charron J. in R. v. McNeil, 2009 SCC 3 at para. 28 : The applicant must therefore justify to the court the use of state power to compel their production — hence the initial onus on the person seeking production to show “likely relevance”.

In addition, it is important for the effective administration of justice that criminal trials remain focussed on the issues to be tried and that scarce judicial resources not be squandered in “fishing expeditions” for irrelevant evidence.

The likely relevance threshold reflects this gate-keeper function. [ 16 ] This is a significant, but not onerous burden upon the accused which recognizes the importance of allowing access to information that may assist in making full answer and defence but balances that with the importance of not unduly protracting criminal proceedings, which has been a “pressing concern” for years ( McNeil , para. 29 ). An accused person does not need to point to the specific use that could be made of the records because they have not seen them.

However, the court must act as a gatekeeper to ensure that criminal trials remain focused on the issues to be tried. [ 17 ] “Likely relevant” means “a reasonable possibility that the information is logically probative to an issue at trial…” which “includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also evidence relating to the credibility of witnesses and to the reliability of other evidence in the case.” ( McNeil , para 33 ). [ 18 ] Merely asserting that credibility is relevant is not enough ( R. v.

Sipes , 2011 BCSC 150 ) and the accused must point to some evidence or information that the records may contain information that has some potential to affect credibility ( R. v. Finley , 2018 BCSC 2482 ). As stated by L’Heureux-Dube J. in R. v.

O’Connor , 1995 SCC 411 at para. 142: …the applicant cannot simply invoke credibility “at large”, but must rather provide some basis to show that there is likely to be information in the impugned records which would relate to the complainant’s credibility on a particular, material issue at trial. [ 19 ] A number of factors may be considered in a determination of “likely relevant” including the temporal connection between the records sought and the offence being tried and whether there is something case specific that “in some way related to the accused’s case…” ( R. v.

Groves 2011 BCSC 946 at para. 10 ) as opposed to an assertion of credibility generally. Discussion and Conclusion: [ 20 ] After hearing submissions, I received a copy of Ginger Francis’ Justin Conviction List which provided the dates of the offences, not just the conviction dates. The offences occurred in 2015 (assault with weapon, mischief) and 2016 (assault and mischief). They precede the current offence by almost 5 to 6 years. That is a substantial gap.

A witness may have rehabilitated herself in that time period and cross examination about conduct that is not closer in time to the offence will likely not be helpful to the trier of fact, in terms of assessing credibility. [ 21 ] The PRIME records, specifically the General Occurrence records, contain a

summary of police actions and includes statements from witnesses, officer notes, third party information, and other documentation such as diagrams and photographs.

These records include unsworn statements made to the police by any number of individuals including the initial caller for service, witnesses, the complainant or the person being investigated. [ 22 ] There is no indication that the two assault convictions involved an intimate partner because they are not designated as “K” files. [ 23 ] The cases provided in which the accused was able to establish likely relevance, involved evidence that tied the sought after records much more closely to the factual and contextual matrix of the case at trial, such as disciplinary records pertaining to drug related misconduct of a police officer in a drug trial ( McNeil ). [ 24 ] I appreciate that Mr.

Gillette has narrowed his request to specific past offences, and in that sense the nature of his application is distinguishable from the facts in Groves . He seeks to impeach and discredit this witness by pointing to any evidence or suggestion that she has not been truthful in the past, has been violent with partners or others in the past or, generally, is an unreliable and incredible witness. [ 25 ] This amounts to a general assertion only and I am unable to conclude that there would be anything in the records sought, particularly given the fact Ms.

Francis’ offences occurred many years prior to the current offence, that would allow me to conclude they may or would, relate to credibility on a particular, material issue in this trial. [ 26 ] Mr. Gillette will have the ability to cross examine Ginger Francis about her criminal record, her lifestyle and propensity for violence and any mental health issues that may assist me in assessing the truthfulness and reliability of her evidence. [ 27 ] I agree with the comments of Fisher J. in Groves at para. 35 :

The cases are consistent in establishing that the credibility of a Crown witness generally is not sufficient to establish likely relevance to an issue at trial. Any other approach would result in very practical floodgates concerns. The relevant threshold has been imposed for good reason... There is also the concern that trials not become side-tracked, delayed, or unnecessarily protracted …. [ 28 ] Cross-examination on such records would unduly lengthen these criminal proceedings and, while I understand why Mr.

Gillette wishes to leave no stone unturned, he is entitled to fair justice, not perfect justice ( O’Connor ). Fair justice allows him to test the credibility and reliability of Ginger Francis’ evidence during cross-examination before me. [ 29 ] Mr. Gillette’s burden of proof is described as significant, but not onerous. I am mindful of this in concluding that he has not discharged that burden. [ 30 ] The application is dismissed. _____________________________ The Honourable Judge Flewelling Provincial Court of British Columbia