R. v. Mayer Date:, 2011 BCPC 422

Citation: R. v. Mayer Date: 20111209 2011 BCPC 0422 File No: 53893-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL MAYER EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: W. J. Havelaar Counsel for the Defendant: M. N. Nathanson Place of Hearing: North Vancouver , B.C. Date of Judgment: December 9, 2011 [ 1 ] THE COURT: The defendant in this matter applies for a stay of proceedings or exclusion of evidence on the basis that the prosecution of the offence against him amounts to an abuse of process, essentially.

The offence is possession of marihuana for the purpose of trafficking on March 7th, 2010. Background [ 2 ] The defendant was stopped in his vehicle after making an unsignalled lane change. After detecting an odour of marihuana and perhaps for other reasons, the investigating officer arrested the defendant, searched his vehicle, and found drugs.

It should be noted that no evidence has as yet been led at the trial proper so this characterization of the facts is solely for the purpose of contextualizing the Charter application. [ 3 ] The basis for the application is that during the trial of the traffic ticket issued to the defendant for the unsignalled lane change, the investigating officer violated a direction by the presiding justice of the peace that he not discuss his evidence while under cross- examination. Counsel also takes issue with the ensuing events after that particular violation of the direction.

[ 4 ] The trial had proceeded with counsel for the defendant, Mr. Nathanson, cross-examining the officer about the circumstances of the incident giving rise to the search of the vehicle. Some of those circumstances were not relevant to the grounds for the ticket, but the justice of the peace appears to have allowed some latitude in that respect. Some issues of disclosure arose and the case was adjourned for the officer to address those. [ 5 ] At the request of defence counsel, he was given the usual warning not to discuss his evidence.

The presiding justice of the peace said, "Officer, that goes without saying," or words to that effect. To which, the officer responded, "Absolutely." During the adjournment, the officer called a federal prosecutor and did, in fact, discuss his evidence. That particular prosecutor is no longer in the country and hence not available to testify. [ 6 ] Mr. Nathanson advises the court that the prosecutor called him after speaking to the officer and told him he had a conversation with the officer about his evidence and did not realize until the end of it that the officer was under cross-examination.

When the matter returned for the continuation before the justice of the peace, the officer stayed the proceedings. He said on the record that he was acting on the advice of another prosecutor. [ 7 ] Mr. Nathanson sought disclosure of the contents of the telephone conversation. Nothing was provided for some time until after the prosecutor had left the prosecutor's office some 75 days later, says Mr. Nathanson. Mr.

Nathanson was of the view that the disclosure did not sufficiently describe the details of the conversation as compared with what he had been told by the prosecutor himself. [ 8 ] In arguing abuse of process in relation to the proceedings now before the court, Mr.

Nathanson relies on a cumulative series of alleged breaches: the conduct of the officer in initially violating the court order not to discuss his evidence; his further discussion with another prosecutor giving rise to his decision to stay the proceedings; the failure of the Crown to provide full and timely disclosure of the contents of the telephone conversation; and the Crown's refusal to accede to Mr. Nathanson's suggestion that the trial of this matter should be adjourned because of the late disclosure. [ 9 ] Mr. Nathanson points to the case of R. v. Cooper in the B.C.

Court of Appeal in which he as counsel challenged the constitutionality of having police attend as Crown counsel on ticket matters, and submitted here that the appearance of Constable Bentham, the officer, as both witness and Crown in the traffic matter exacerbated the abusive nature of his actions in violating the court order. [ 10 ] The Crown opposed my hearing the application at all on the basis that there was no connection between the officer's actions on the traffic trial and the case before me. [ 11 ] Defence counsel submitted that if the conduct of the officer reflected on his motives in deciding to stay the traffic ticket and proceed with the drug trial and if he based that decision on conversations that occurred in violation of a court order, there was arguably a basis on which I could find that the present proceedings constituted an abuse of process. [ 12 ] Mr.

Nathanson also submitted that the authorities relating to abuse of process establish that independently of any fair trial issue, there is a residual category where the continuation of the proceedings violates fair play and decency. He sought the opportunity to provide an evidentiary basis for making that argument. [ 13 ] I held in relation to the Crown's preliminary objection that I would hear the officer's evidence on a voir dire in order to determine whether there was an evidentiary basis or foundation for making the argument that there was abuse of process in this case.

Evidence on the Voir Dire [ 14 ] Constable Bentham agreed that in cross-examination at the traffic trial he had testified that in connection with stopping the defendant's vehicle, he had queried the licence plate on his computer and a PRIME file came up that had something to do with the drug MDMA. This was not information he had put in his Report to Crown Counsel. Bentham confirmed that he was aware of the relevance of that hit on PRIME and his obligation to disclose all relevant evidence.

Elsewhere in his Report to Crown Counsel, under the heading, "Drug Experience of Constable Bentham," he had referred to prior files in which he had been involved. [ 15 ] The traffic trial was adjourned following a caution by the justice of the peace, as I have indicated.

In connection with that adjournment, Constable Bentham was asked to obtain the following information requested by the defence, the number of prosecutions for traffic tickets he had conducted, any follow-ups he had received from other officers related to the Report to Crown Counsel on the drug charge, and reports from the police systems described as CPIC, PIRS, and PRIME regarding the drug prosecution. [ 16 ] Bentham did not bring any of that material with him to the trial on the voir dire before me.

He said this was because he was not aware it would be the subject of inquiries at this proceeding. [ 17 ] Bentham admitted that during the adjournment of the traffic trial, he was aware that he was not finished in cross-examination. He was aware he had been asked issues about the drug trial and that Mr. Nathanson would likely be counsel in that trial. He called Crown counsel, Mr. Clouston, whom he knew to be the prosecutor on the drug trial or expected at that time would be. [ 18 ] Constable Bentham said initially that in his conversation with Mr.

Clouston, he expressed his concern about having given evidence about issues relating to the drug trial in the traffic trial. He asked if defence counsel was allowed to question him about that and discussed with Mr. Clouston some of the questions that Mr. Nathanson had asked him about the search. [ 19 ] He sought advice on the disclosure requests. He said he did not ask for guidance about his answers or tell Mr. Clouston any of the answers he had given. Bentham did not make any notes of this conversation with Mr.

Clouston. [ 20 ] Bentham admitted that he had asked Clouston if he had screwed up the drug case by giving evidence about it in the traffic case.

He said his only recollection about what he told Clouston about his evidence was that it would not change between the two cases. Heagreed he discussed with Clouston the issues defence had raised and the areas he had been questioned about in light of the fact that thedrug case was ongoing. Bentham admitted he was concerned about the impact of the evidence he had given on the upcoming trial. Hewanted to know what he was to do as Crown in responding to the future questions and disclosure requests in the traffic trial. [21] Bentham did not tell Clouston he was under cross-examination.

He told him the case had been adjourned. At the end of theirtelephone conversation, Clouston told Bentham he was going to call Mr. Nathanson's office about the matter. He said Clouston told himit looked like Mr. Nathanson had gotten a free discovery out of him without the benefit of having any competent Crown counsel there. Bentham did not remember Clouston becoming aware that he was under cross-examination. [22] Bentham said he asked Clouston what impact his evidence on the traffic trial would have on the drug prosecution.

He also askedClouston if he had to answer questions that related to the drug case if they were not relevant to the traffic case. He told Clouston he hadalready been asked some of those, but said he did not recall whether he had told Clouston his responses. He said they "danced allaround" the questions that were asked about the search and the hits on the vehicle. Bentham then admitted he did tell Mr. Clouston thathe had said in court that he had a PRIME hit on the vehicle. [23] He then reiterated that he did not discuss his evidence regarding the search and seizure, just what was and could be asked.

Mr.Nathanson had asked him whether his grounds for the stop went beyond the traffic stop. He discussed with Mr. Clouston whether hehad to answer that, but reiterated that he did not discuss his answers. He specifically discussed a question about leaning into the vehicle,but not his answer about that, he said. [24] After the telephone conversation, Bentham did not hear back from Clouston. He had further discussion with Crown membersabout the conduct of the case. He believed those were with Mr. Whyte and within two weeks prior to the continuation date or so.

Hedid not record those calls or make notes of them. [25] Constable Bentham initiated those calls. He had left messages for Mr. Clouston to call him for several months and did not hearback from him. Constable Bentham's intent in making these calls was to request that a prosecutor attend the traffic case. He told Mr.Whyte that he had testified and the trial was continuing, but did not recall if he told him he was still under cross-examination.

He toldhim he had been asked questions about the drug trial and was concerned that it was ongoing and he was concerned about those issuesraised being continued and answering any further such questions. [26] So he wanted Crown there to assist. He made several inquiries about that with both federal and provincial Crown, but did notsucceed in having a prosecutor assigned. In one of those discussions with Mr. Whyte the option of staying the traffic proceeding arose. [27] During a break in the proceedings before him, Constable Bentham was asked to retrieve any notes he had in relation to hisconversation with Mr.

Whyte. He left the courtroom under cross-examination and received a direction from this court not to talk toanyone about his evidence. [28] When we returned after the break, it came to light that he had spoken to Corporal Powell about what he recalled about theconversation with Mr. Whyte because he had recalled but not testified that Powell was present for it. Again, he asserted that he had notdiscussed his evidence with Corporal Powell, just asked what he recalled about the conversation. Case Law [29] Turning to the cases, Mr. Nathanson provided and referred to a number of cases: R. v.

Peruta (1992), (QCCA), 78 CCC 3d 350, QCA, leave denied; R. v. Montgomery, (BC SC), [1998] BCJ No. 1568 pertaining to theconduct of counsel in discussing evidence with a witness under cross-examination; R. v. Tobiass, (SCC), [1997] 3 SCR391 regarding the making of a judicial stay of proceedings where necessary to ensure the integrity of the proceedings, and a residualcategory that addresses diverse and unforeseen circumstances that contravene fundamental notions of justice and/or undermine theintegrity of judicial process. R. v.

Harrison, 2009 SCC 34 regarding police conduct resulting in the exclusion of evidence; R. v. Caster,BCCA regarding the use of section 24(1) for exclusion of evidence; R. v. O’Connor (SCC), [1995] 4 SCR 411 p.32pertaining to stays for non-disclosure; R. v. Lauriente, 2010 BCCA 72 regarding cumulative breaches; and as well: R. v. Bohn, 2000BCCA 239; R. v. Strachan (SCC), [1988] 2 SCR 980; R. v. Bjelland, 2009 SCC 38; R. v. Wittwer, 2008 SCC 33; R. v.Regan, 2002 SCC 12; R. v. Nixon 2011 SCC 34; R. v. Harrer (SCC), [1995] 3 SCR 562; R. v. White, (SCC), [1999] 2 SCR 417. [30] Mr.

Nathanson also provided a most helpful and thorough review of the case law pertaining to Charter remedies under s. 24(1)and the extent to which the authorities imported the principles developed under s. 24(2) into those analyses. [31] Most recently, Mr. Nathanson has filed and referred to the case of R. v. Tang, 2011 ONCJ 525, in which the learned judge held ina situation where an officer gave inconsistent testimony and made no notes of problematic evidence that the officer's conduct justified astay of proceedings under s. 24(1).

I note that was in conjunction with an allegation of excessive force in the conduct of an arrest. Justice Reinhardt in that case specifically applied the s. 24(2) principles relating to the seriousness of the conduct to the issue of a stayunder s. 24(1). [32] Mr. Havelaar did not take issue with the defence's characterization of the case law. He pointed, in particular, to O'Connor andTobiass and emphasized that stays for abuse of process or any remedy under s. 24(1) that affects the ability of the Crown to proceed areof necessity very rare. Submissions and Analysis

[ 33 ] It is clear to me based on Constable Bentham's evidence before me that he did discuss his evidence at the traffic trial with Mr. Clouston while he was under cross-examination. He admitted as much, although he preferred to characterize it as discussing the questions that were asked and not as evidence or seeking advice. [ 34 ] In relation to the questions about the PRIME hit, however, he overtly stated that they did discuss it. This went to the heart of the reasons for the stop and disclosed a potential hidden or ulterior motive for wanting to search the vehicle.

It was a crucial piece of evidence pertaining to the drug trial. [ 35 ] Bentham should not have discussed this evidence with Mr. Clouston or any prosecutor or anyone while he was under cross- examination. The fact that he was acting both as a prosecutor and witness in the traffic proceeding did not justify departure from the order of the court that he not discuss his evidence. His assertion that he was just seeking legal advice about how to proceed does not excuse him from advising Mr.

Clouston at the outset of the conversation that he was under cross-examination and it does not mean he was complying with the court order. [ 36 ] Mr. Havelaar concedes that a breach may have been established here, but takes issue with whether the officer's intent was to subvert the process or simply a good-faith attempt to clarify his role and seek advice. Mr. Havelaar points out that the officer felt outmatched by defence counsel at the traffic trial and did not want to subject himself to continued cross-examination.

His concern was jeopardizing the drug trial and he attempted to seek advice about how to proceed. Mr.

Havelaar says these concerns and his motivation in seeking advice remove the case from a finding of bad faith or malice. [ 37 ] He adds that even if there were a finding of malice or bad faith, there would remain the issue of whether the officer's conduct can be said to have affected the fairness of the trial before me. [ 38 ] Had Constable Bentham sought to continue the traffic prosecution having had the benefit of discussing his evidence with the prosecutor, there may well have been a basis for arguing that his conduct affected not just the weight of his evidence, but the conduct of the trial, particularly in light of the fact that he was acting as the prosecutor.

If Constable Bentham had had those discussions in the midst of the drug trial, it may arguably have affected the fairness of the proceedings. [ 39 ] However, I agree with the Crown that the issue here is what relevance the officer's breach of the court order and subsequent stay of proceedings and any of the other transgressions that occurred in connection with the traffic trial have on the fairness of the drug trial. [ 40 ] Mr. Nathanson argues that the officer's actions in directing a stay of proceedings in the traffic trial are directly linked to the proceedings before me.

He says the intervening factor between the officer's abuse of conduct in having the conversation with Mr. Clouston and directing the stay is the involvement of Crown counsel in assisting the officer to decide on a stay of proceedings in order to favour the drug case. That, he says, directly links the officer's misconduct in both areas to the drug proceedings. He says it is important that the argument deal with both substantive fairness and the appearance of justice. [ 41 ] Mr.

Nathanson points to the officer's conduct in the context of these proceedings while the issue was squarely before the court in going back to his office at lunch, speaking to Corporal Powell about the conversation with Mr. Whyte. Mr. Nathanson, in his submissions, called that nothing short of outrageous. [ 42 ] Mr. Nathanson said that there is a pattern of disregard for the defendant's Charter rights in the conduct of the officer and that his decision to stay the traffic case represents an effort to insulate himself from his misconduct. Added to that, he says, there is a delay on the part of the Crown and Mr.

Clouston's consequent unavailability resulting in a cumulative breach of the defendant's right to a fair trial. [ 43 ] Essentially, the argument distils into a submission that the officer's disregard for the court orders, failure to take notes, reluctance to admit his misconduct, and decision to enter a stay of proceedings to sacrifice the drug proceedings in favour of preserving his evidence unchallenged for the drug trial cumulatively amount to such egregious misconduct that the drug prosecution should not be entertained by the court. [ 44 ] Mr.

Nathanson makes two arguments, one in favour of a stay and the second in favour of exclusion of the officer's evidence in these proceedings. He relied on the cases cited as establishing a pathway to exclusion of the evidence or a stay on the basis that the officer's conduct in the prior proceedings tainted his evidence and conduct in these such that the case now before me should not be permitted to proceed. [ 45 ] In reference to the Tang decision, in particular, Mr. Nathanson points to the continuation of the misconduct into the trial before me as analogous to that in the situation in that case.

There, a stay of proceedings was granted for police misconduct in the nature of excessive force on arrest that was not properly documented nor candidly admitted by the officer involved. Tang , he says, specifically supports his proposition that the factors under s. 24(2) should be imported into an analysis under s. 24(1). [ 46 ] Mr. Havelaar submits that the issue in this case is not what the law is, but rather, whether the defence has met the test for a stay of proceedings or another such dramatic remedy.

He points out that what is at issue is the officer's conduct and whether it affects the fairness of trial or amounts to an abuse of process. [ 47 ] Mr. Havelaar says there is no impact on the right to a fair trial as the defendant has had full disclosure of the Crown case, has had an added benefit of cross-examining the main witness twice in advance of his testimony at the main trial on the drug charge. He will have much fruit for cross-examination. [ 48 ] Mr. Havelaar submits there is nothing in the evidence on the voir dire that suggests any impact on the fairness of trial.

He says the conduct of the officer and the Crown in its entirety are not an abuse of process of such an egregious nature as to warrant a stay or a discontinuance of the proceedings. He says there is no abuse or, if there is, it does not merit the remedies sought. The case law, he says, supports this reasoning, in particular, O'Connor and Tobiass . [ 49 ] Where counsel differ is the test to be applied to an application to exclude evidence under s. 24(1) for abuse of process or

interference with the right to a fair trial. I am not sure I will find it necessary to resolve that question for these purposes.

As I see it, the difference between this case and those in which the conduct of the officer or the Crown merited a stay, or the conduct of the state resulted in the exclusion of evidence, is that it has not been shown at this point what effect the officer's established misconduct will yet have on the evidence related to the case before me. [ 50 ] In Tang , it was established in the trial that the officer acted improperly in connection with the arrest of the accused on the instant charge. He also failed to take notes of that particular conduct and its effects and was dishonest about it in his evidence. While Mr.

Nathanson analogizes and says, here, there also was a clear breach, failure to take notes in connection with that and denials, this breach and these conversations are somewhat removed from the actual investigation and evidence to be led in the drug trial. [ 51 ] The breach here is in the nature of a procedural violation and the extent to which it may come to affect the officer's evidence or the fairness of trial has not been established on this voir dire. There is no factual or evidentiary foundation at this point.

I have not heard the officer's testimony about the drug charge and it has not been established that his evidence is tainted or was tainted by his actions in connection with the traffic trial. [ 52 ] Tang and the other cases cited discuss police conduct which has either occurred in connection with their primary investigation or clearly been shown to affect the defendant's Charter -protected interests. Here, we have not gotten to that point. [ 53 ] While Mr.

Havelaar submits that I must conclude the officer's evidence cannot be said to have been tainted or he operated in good faith in light of his having stayed the traffic proceeding, et cetera, in my view, that issue remains to be determined. That is, the extent to which the officer's testimony can be said to have been tainted by his prior actions and testimony. As I have indicated, it arguably tainted his evidence in the traffic matter, perhaps irreparably. I do not understand that proposition to be entirely resisted by the Crown.

However, that is not the issue I have to decide. [ 54 ] The officer's violations of the court order or orders, reluctance to admit those, and failure to take notes may arguably, and likely do, have relevance to the weight to be given to his testimony, ultimately. All of that history is certainly admissible for the purpose of cross-examining on the trial proper in this matter. [ 55 ] However, I agree with the Crown that this is not a case as this stage of the proceedings where either a stay or exclusion of the officer's evidence in its entirety in the drug trial is justified.

The breach in this context does not go so directly to the fairness of trial or admissibility of the officer's evidence as to amount to grounds to exclude for Charter reasons, even looking at the factors under s. 24(2) and/or employing a lower standard than the clearest of cases. [ 56 ] I am not satisfied there is or will be any effect on the Charter -protected interests of the accused.

While I agree also with the Crown that there is a greater interest in adjudication on the merits in this case perhaps than in Tang , I join with the defence in observing that that is an issue that can cut both ways in the analysis in that there is also a stronger interest in ensuring that a defendant's rights are upheld for a stronger, or more serious, offence.

However, none of the conduct here is such that the rights to a fair trial or doctrine of abuse of process are engaged in relation to this proceeding at this point. [ 57 ] Looking, for instance, at the aspect of the officer's decision to stay the traffic proceedings, that was a matter entirely within his prosecutorial discretion. It is not open to judicial scrutiny, and that comes from R. v.

V.T. , 1992, SCC, and the cases following that. [ 58 ] Once the officer had discontinued the traffic case, I agree with the Crown that his having discussed his evidence with any prosecutor prior to the drug trial in or outside the context of an order not to do so is on the same footing as any interview or discussion he may have had in preparation for his testimony at the trial. He addressed that misconduct in the traffic proceedings by staying the charge. That was probably an appropriate remedy for the conduct.

Again, it is not for me to decide that. [ 59 ] Here, Constable Bentham may be cross-examined on his evidence that he gave at the traffic trial and his discussions with Crown counsel about his evidence. The fact of his having disregarded the court orders and failing to take notes of those discussions may also be considered in weighing his evidence and credibility. What I do not know is what effect those transgressions will have on the ability of the court to conduct a solemn inquiry into the truth. [ 60 ] Considering, as well, the effect of the Crown's resistance to disclosing Mr.

Clouston's will-say statement, I must consider whether Mr. Clouston could be called as a witness to contradict Constable Bentham if he denied parts of the conversation that Clouston says occurred. It is likely that such evidence will be found to be collateral in the drug proceedings, these proceedings. It does not consist of a prior inconsistent statement related to the substance of the proceedings. [ 61 ] Mr. Nathanson argued that it is not collateral to the purposes of the voir dire and has therefore hampered his ability to advance the argument that there has been a breach of the court order.

I am not at all convinced that there is a right to full answer and defence in the development of a Charter application, however, and in any event, I am satisfied, without Clouston's evidence on the voir dire, that the officer did breach the order. [ 62 ] On the trial proper, Clouston's evidence would be collateral and its absence does not affect the ability to provide full answer and defence. Mr.

Clouston's absence, therefore, does not go to the issue of trial fairness. [ 63 ] As well, in light of the view I have taken regarding Constable Bentham's evidence about that conversation, it may not have been necessary for the defence to have called Mr. Clouston to contradict him or discover the contents of the conversation. Constable Bentham admitted discussing the evidence with Mr. Clouston. He may be fully cross-examined on that, his evidence, his prior report, and the nature of his grounds for the stop, without Mr.

Clouston being made available for testimony. [ 64 ] Even considering each of these breaches or transgressions cumulatively, I am not satisfied they amount to conduct infringing the defendant's Charter -protected interests or affecting the fairness of this trial. [ 65 ] It will be up to the Crown to assess whether or not it wishes to proceed in light of potential issues with respect to the officer's

credibility. I have not pronounced on those and, obviously, it is incumbent on me not to do so until the close of the case. That is something Crown will have to assess in light of the testimony that the officer has given, up to this point. [ 66 ] However, in conclusion, I agree with the Crown that the evidence on the voir dire does not establish that there has been an abuse of process meriting a discontinuance of the proceeding in any fashion. The application is dismissed. [RULING ON VOIR DIRE CONCLUDED]