R. v. Prince, 2021 BCPC 237

Citation: R. v. Prince 2021 BCPC 237 Date: 20210430 File No: 47012-1 Registry: Fort St. James IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARCY BRENDEN PRINCE REASONS FOR JUDGMENT RE DEFENCE APPLICATION FOR MISTRIAL OF THE HONOURABLE JUDGE S. KEYES Counsel for the Crown: R.W. Robinson, W. Dawson, QC, appearing by videoconference Counsel for the Defendant: M. Reed, appearing by videoconference Place of Hearing: Fort St. James, B.C. Dates of Hearing: November 26, 27, 28, 29, 2019; March 12, 13, October 28, 29, 30, 2020; February 22, 23, 2021

Date of Judgment: April 30, 2021 A Corrigendum was released by the Court on October 7, 2021. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT: This is my decision with respect to the application for a mistrial filed by the defence. Mr. Prince is charged with the aggravated assault of Quinn Moeller arising out of an incident that occurred at a charity hockey tournament which took place in Fort St. James, B.C., in February of 2018. The complainant, Quinn Moeller, and the accused, Darcy Prince, were on opposite teams competing in the hockey tournament.

There is no dispute that Quinn Moeller suffered serious injuries to his face as a result of being struck by a hockey stick held by Mr. Prince. The primary issue at trial appears to be the intent of Mr. Prince. [ 2 ] Mr. Prince has applied for a mistrial on the basis of late disclosure of text messages and other information arising out of an undisclosed friendship between Sergeant Hallam of the local RCMP detachment and the mother of the complainant, Quinn Moeller. Counsel provided me with a number of case authorities to assist me in my consideration of this application.

I have read and considered all of them, but I will not provide a thorough review of each of them. The factual basis for the application is as follows: [ 3 ] Fort St. James is a small town in North Central B.C. It appears from the evidence at trial that it is a small enough community that almost everyone is known to everyone else, at least to some degree. Sergeant Hallam was the officer in charge at the Fort St. James detachment at the pertinent time. Quinn Moeller and his parents, Paulette and Peter Moeller, reside in Fort St. James. [ 4 ] The trial of this matter began on November 26, 2019.

The Crown called a number of witnesses at that time. The trial resumed in March 2020 but progress on the trial was interrupted by the COVID-19 pandemic. The court heard from additional Crown witnesses including Mr. and Mrs. Moeller, the parents of Quinn Moeller, in October 2020. During the cross-examination of Mr. Moeller on October 29, 2020, the defence counsel, Mr. Reed, asked Mr. Moeller questions about Mr. Moeller's relationship with Sergeant Hallam. Defence counsel suggested to Mr.

Moeller that he was a friend of Sergeant Hallam and he said, "Yeah". [ 5 ] That evening at approximately 7:55 p.m., defence counsel requested from the Crown by email disclosure of all notes, emails, and transcribed interviews of Sergeant Hallam. That request was sent by email to Crown counsel, Randy Robinson, on the evening of October 28, 2020, but was not read by him until October 29, 2020, on the court luncheon break. He promptly forwarded that request to the RCMP. By that time, the cross-examination of Mr. Moeller was finished and the Crown had closed its case. [ 6 ] During the cross-examination of Mr.

Moeller on October 29, 2020, defence counsel asked Mr. Moeller whether he had exchanged text messages with Sergeant Hallam and Mr. Moeller replied that he did not think so because he did not have the number, but "anything's possible." He agreed that he may have discussed the case with Sergeant Hallam "while they were visiting at their house or our house," and commented that he and Sergeant Hallam's husband had helped each other out with renovation projects and they got together for dinner or coffee once a month or so. He was asked whether Sergeant Hallam gave him any direction about his son's file and Mr.

Moeller answered in the negative, maintaining that he dealt only with Corporal McWhinnie and Sergeant Hallam was not involved at all. In the course of that cross-examination, defence counsel informed the court, "This is important and this will become important later because there's been no disclosure." [ 7 ] The defence began calling witnesses that afternoon and carried on to October 30, 2020. Three defence witnesses were called. One remained under cross-examination when court ended on October 30th. The trial was adjourned until January 6, 2021, for continuation.

It was not until shortly before Christmas, December 21 and 22, 2020, that the Crown office received a response to the disclosure request from the RCMP. The disclosure included 27 pages of text messages between Sergeant Hallam and Mrs. Moeller. This material was placed in the disclosure basket for pick-up by defence counsel on December 23, 2020, but by then his office was closed for Christmas and the disclosure was not picked up until January 4th. [ 8 ] On January 5, 2021, a pre-arranged pretrial conference was held to address readiness for trial.

The continuation dates set for that week were adjourned for COVID-related reasons. Mr. Reed indicated he anticipated filing a mistrial application on the basis of the late disclosure of the material he had just received. After that, further disclosure was made by the Crown in February of additional text messages between Sergeant Hallam and Mrs. Moeller. The text messages indicate a warm, caring, and supportive friendship between Sergeant Hallam and Mrs.

Moeller. [ 9 ] The difficulty, as Sergeant Hallam acknowledged in one of her text messages, is that Sergeant Hallam was, to use her words, "crossing the line between friend and cop." In addition to supporting Mrs. Moeller emotionally while her son was in hospital, Sergeant Hallam also provided information received from Mrs. Moeller such as photos of Quinn Moeller's injuries and surgical interventions to the police file, provided advice to Mrs. Moeller about whether to allow the accused and his friends to attend hospital to apologize, informed Mrs.

Moeller she would be following up with Crown counsel regarding the law on aggravated assault, and be "on" Corporal McWhinnie, the officer in charge of the investigation. [ 10 ] Sergeant Hallam also reassured Mrs. Moeller that the Crown would take very seriously any attempt by the accused or his friends to intimidate her son, "The Crown would string him up," encouraged her to support her son to proceed with the prosecution, told her that, "These thugs don't feel any remorse," and told her, "I know these guys and their history.

They'll do whatever it takes to avoid dealing with it." [ 11 ] Sergeant Hallam also provided information to Mrs. Moeller about the case from other witnesses. Sergeant Hallam interviewed three witnesses in the investigation, one of whom, Jackie Marshall, told her that when Mr. Moeller confronted the accused and members of his team on the ice immediately after the incident in which his son, Quinn Moeller, was injured, Tyrell had said to Mr. Moeller, "Go sit down, old man, or you're next," or, "Go sit down, old man, or you'll get beat." While Quinn Moeller was still in the hospital, Sergeant Hallam wrote to Mrs.

Moeller, "These ducking guys have spent their whole lives intimidating like what Montana or Tyrell said to Peter,

"Shut up, old man, or you're next." When Peter Moeller testified in his examination in chief, he said he had been threatened in words to that effect, but he said the threat was uttered by the accused. It may be significant that he had made no mention of such a threat by the accused in his statement to police close to the timing of the events, but only mentioned it much later after the text messages on that subject between Sergeant Hallam and Mrs. Moeller had occurred.

Obligation to disclose or seek disclosure [ 12 ] Crown counsel acknowledged that Sergeant Hallam's statement, included in the Report to Crown Counsel, includes that she was informed of the "huge battle at the arena" by text message from Mrs. Moeller. Sergeant Hallam's statement does not contain any explanation of how she knew Mrs. Moeller or how Mrs. Moeller knew Sergeant Hallam's phone number in order to text her.

Apparently, neither Crown counsel nor defence counsel was alerted by this information in Sergeant Hallam's statement to inquire further into the relationship or to seek any further disclosure. [ 13 ] Crown counsel submits that the friendship between the Moeller family and Sergeant Hallam was unknown to them until October 28, 2020, when Mr. Moeller admitted he was a friend of Sergeant Hallam under cross-examination by the defence. Defence counsel asserts similarly that he was unaware of the friendship until then, although that submission is somewhat belied by the fact that he made that very suggestion to Mr.

Moeller during his cross-examination. On the other hand, it was apparent during the trial that almost all of the witnesses knew one another and were friends or friendly to some degree. So such a question coming at that stage in the trial would not require specific prior knowledge of such a relationship. [ 14 ] Crown counsel submitted that since the individual Crown counsel conducting the case had no personal knowledge of the friendship between Sergeant Hallam and the Moeller family, the failure by the Crown to disclose is not blameworthy. I do not blame the Crown counsel.

However, Sergeant Hallam was certainly aware of her relationships and communications with Mrs. Moeller, right from the beginning. It would be surprising if the other members of the Fort St.

James detachment including Corporal McWhinnie, the assigned investigator, were ignorant of that relationship. [ 15 ] The fact that the Report to Crown Counsel is silent with respect to that relationship and the communications in connection with it is by itself troubling, but the fact that this information was known to the investigating body, but not disclosed to Crown counsel cannot insulate the Crown from an obligation to disclose it.

The Crown has a duty to disclose relevant information and that duty extends not only to individual Crown counsel who may be conducting the case, but to Crown in the larger sense of the state which includes the police. I am satisfied that the nature of the relationship between Sergeant Hallam and her communications with Mrs.

Moeller regarding the case were relevant and the Crown, which includes the police, had a duty to disclose that information in a timely way which, in this case, would be right from the start in the Report to Crown. [ 16 ] The Crown argues that the defence counsel must have been aware from its own sources of the relationship between Sergeant Hallam and Mrs. Moeller at some point earlier than the revelations occurring during the cross-examination of Mr. Moeller.

The Crown argues that the defence was simply "lying in the weeds" having failed to inquire in a timely fashion and is thus not entitled to the drastic remedy of a mistrial. Crown counsel points to the remarks of Mr. Reed on October 29th when he said, "This is important and this will become important later on because there's been no disclosure." [ 17 ] When I asked about this remark, Mr. Reed explained that he asked Mr. Moeller about Sergeant Hallam because after hearing Mr. Moeller's examination in chief, he "just didn't believe him." The explanation does not really answer the question.

However, I have reviewed the cross-examinations of each of the prior witnesses and taken into account that Mr. Reed did not cross-examine Mrs. Moeller at all. I am confident that had he been in possession of the sort of information that was eventually disclosed or even had an inkling that it existed, Mr. Reed would have cross-examined on it. He did not do so. I am satisfied that the defence counsel in this case was not aware of the existence of the disclosed material nor the need for an inquiry until October 28, 2020, during the cross-examination of Mr. Moeller.

Relevance and Materiality [ 18 ] The Crown submits that the late disclosed material is of marginal relevance to the matters at issue. Crown counsel submitted that the evidence regarding the threats uttered to Mr. Moeller is of little or no relevance because Mr. Prince is not charged with uttering a threat to Mr. Moeller. With respect, I disagree. Without deciding the issue, it appears to me that there is no dispute that Mr. Prince did, in fact, cause serious bodily harm to Quinn Moeller. The pivotal issue in this trial is whether Mr. Prince intended to cause Mr. Moeller serious bodily harm: R. v.

Paice , 2005 SCC 22 . [ 19 ] If the court were to accept evidence that Mr. Prince threatened to beat Mr. Moeller Sr. immediately after causing serious bodily harm to his son, the court could reasonably infer that Mr. Prince had also intended to assault his son; that is, that the threat to Mr. Moeller could be construed as compelling evidence of continuing animus. As Mr. Reed submitted, when Mr. Moeller testified that Mr.

Prince had said to him, "Why don't you come out here, old man, you're next," that testimony "sucked the air from the room." Presumably, animus was the purpose for which the Crown led that evidence in the first place. Otherwise, evidence that Mr. Prince threatened someone other than Quinn Moeller at some other time would be inadmissible at the trial. I conclude that the evidence led by the Crown from Mr. Moeller regarding the threat by Mr. Prince to Mr. Moeller was potentially highly relevant and material.

Whether the Failure to Provide Timely Disclosure Can Be Remedied by Calling Witnesses for Further Cross-Examination [ 20 ] Defence counsel submits that he had no knowledge until receiving the disclosure package on January 4, 2021, of the existence of such a close relationship between Mrs. Moeller and Sergeant Hallam, nor the extensive communication between the two of them about this matter from the beginning of these events and for the next two years. As I mentioned earlier, the Crown case closed October 29, 2020, and Mr. Prince elected to call evidence in his defence. By January 4, 2021, Mr.

Prince had already called several defence witnesses. [ 21 ] Mr. Prince argues that had he received disclosure of the relationship and these text messages in a timely fashion, that is, prior to making a plea or election or at least prior to the start of the trial, it would have made a difference to the conduct of the trial by the

defence. He submits that the failure to disclose this information in a timely fashion has fatally impaired trial fairness. He submits the impact of non-disclosure cannot be remedied by recalling Crown witnesses for further cross-examination. [ 22 ] The Crown argues that additional cross-examination of Mrs. Moeller, Mr. Moeller, and Sergeant Hallam would be sufficient to remedy any damage to the defence arising from the failure to disclose in a timely fashion.

The Crown argues that the defence has not pointed to a specific way in which calling or recalling the Crown witnesses for additional cross-examination now is inadequate to remedy the lack of timely disclosure. [ 23 ] I am not satisfied that is the test.

It seems to me that the right to silence should protect the defence from having to lay out in detail its strategy in the trial or the manner in which it might have conducted a cross-examination on a particular piece of evidence if it had been aware of it at the time, nor should the defence have to anticipate and lay out for the court how such additional cross-examination at this late point in the trial would be inadequate to remedy the Crown's failure to disclose.

With respect, the defence does not bear the burden of remediating the effect of a Crown failure to disclose in a timely fashion. [ 24 ] The conduct of a trial involves a myriad of small decisions over time which cumulatively contribute to the way that the trial is conducted. The course of the trial is like the course of a river. A small diversion upstream might change the course of the river downstream. Each of those decisions is based on the information known at the time.

While it may be that in some cases, non-disclosed or late disclosed material may have so little relevance or materiality that it could have no conceivable impact on the conduct of the trial, but that is not the case here. I have found the late disclosed evidence to be potentially highly relevant and material. [ 25 ] I am satisfied that had the nature of the relationship between Sergeant Hallam and the Moeller family and the text messages between Mrs.

Moeller and Sergeant Hallam been disclosed to the defence in a timely fashion, at the very least prior to the start of the trial, that information would have had an impact on the defence conduct of the trial. Whether the Defence Failure to Cross-Examine Was a Strategic Decision [ 26 ] The Crown submitted the defence could have cross-examined other witnesses on the subject of the threat and other subjects, but had made a strategic decision not to do so and should not now be entitled to a mistrial as a remedy for a strategic decision.

The Crown points out that another witness, Jackie Marshall, had made a statement which was disclosed to the defence in a timely fashion attributing the threat to another person, not Mr. Prince, and that the defence could have cross-examined her about it when she was on the stand. [ 27 ] Mrs. Marshall was the first civilian witness called at the trial. During examination in chief, Mrs. Marshall did not remember what was said after the incident in which Quinn Moeller was injured nor who said it.

Had it not been for the evidence presented in this mistrial application, the court would not have been aware that she gave detailed evidence about what was said and who said it (not Mr. Prince) in her statement to police made at the time. The Crown made no attempt to refresh her memory on the subject of the threat, preferring, apparently, to elicit contrary and more sinister evidence from Mr. Moeller attributing the threat to Mr. Prince much later in the trial. [ 28 ] The defence argues that in eliciting evidence regarding this threat from Mr. Moeller, but not from Mrs.

Marshall, the Crown chose to pursue a false narrative. Whether that narrative was false or not is not for me to decide at this time, but I do not fault the defence for failing to cross-examine Mrs. Marshall on her statement about a threat made by someone other than the accused to someone other than the victim almost a year before the Crown elicited evidence from Mr. Moeller that the threat was instead made by Mr. Prince. If the Crown was of the view that the evidence regarding the threat to Mr. Moeller was irrelevant and immaterial (perhaps because, as Ms. Dawson submitted, Mr.

Prince was not charged with uttering threats to Mr. Moeller), it would not have been proper to elicit evidence of threats uttered after the incident giving rise to the charges from either witness whether statements to that effect had been disclosed or not. The fact that the Crown chose not to elicit evidence about the threat from Mrs. Marshall would have been consistent with a defence view that such after-the-fact evidence was not relevant or admissible.

In that case, at the time she was called to testify, there would be no reason or proper foundation for the defence to cross-examine her on the subject. [ 29 ] However, it is apparent that the Crown decided evidence regarding a threat uttered after Quinn Moeller's injury was relevant and material since the Crown chose to elicit that evidence from Mr. Moeller despite the fact that the Crown was aware his account was contradicted by another Crown witness, Mrs. Marshall. [ 30 ] Both Mr. Moeller and Mrs. Marshall were witnesses called by the Crown.

Presumably, the Crown would seek to have the court rely on their evidence as accurate and truthful. The Crown could have elicited Mrs. Marshall's version, as well, and later made submissions as to why Mr. Moeller's version should be preferred. At the very least, the Crown could have called Mr. Moeller to give evidence prior to calling Mrs. Marshall so as to provide the defence the opportunity to elicit her contrary version in cross-examination when its relevance and significance would have been readily apparent. [ 31 ] I am troubled by this conduct on the part of the Crown.

The Crown has the right to conduct its case as it sees fit, but in calling its witnesses in the order it did and in being so selective in the evidence elicited, I find that there is "a reasonable possibility that the accused's right to a fair trial was precluded," R. v. Pattison , 2011 BCSC 1407 , at paragraph 10 . For that reason, I find a mistrial is the only appropriate remedy. [ 32 ] In addition, I find that the late disclosure of the relationship between Sergeant Hallam and the Moeller family and the text messages between Sergeant Hallam and Mrs.

Moeller has negatively affected the conduct of this trial by the defence and that recalling witnesses for additional cross-examination is not an appropriate remedy. In these circumstances, I am satisfied that there exists a reasonable possibility that the lateness of the disclosure affected the overall fairness of the trial process and this is a proper case for a mistrial to be ordered: R. v. Arnold , 2001 BCCA 374 . [ 33 ] So the defence application for a mistrial is granted. (REASONS CONCLUDED) CORRIGENDUM – Released October 7, 2021

In the Reasons for Judgment dated April 30, 2021, the following changes have been made: [1] On the Style of Proceedings the “Registry” and the “Place of Hearing” should read: Fort St. James. [2] Paragraph 4 should read: [4] The trial of this matter began on November 26, 2019. The Crown called a number of witnesses at that time. The trial resumed in March 2020 but progress on the trial was interrupted by the COVID-19 pandemic. The court heard from additional Crown witnesses including Mr. and Mrs. Moeller, the parents of Quinn Moeller, in October 2020. During the cross-examination of Mr.

Moeller on October 29, 2020, the defence counsel, Mr. Reed, asked Mr. Moeller questions about Mr. Moeller's relationship with Sergeant Hallam. Defence counsel suggested to Mr. Moeller that he was a friend of Sergeant Hallam and he said, "Yeah". _______________________________________ The Honourable Judge S. Keyes Provincial Court of British Columbia