Her Majesty the Queen - v. -, 2011 SKPC 60

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 060 Date: April 21, 2011 Information: 38630618 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Andrew Carmichael Appearing: Mr. Dana Brule For the Crown Mr. N. Chris MacLeod For the Accused DECISION ON APPLICATION FOR DISCLOSURE M.J. HINDS , J Introduction [ 1 ] The accused is charged that on or about June 5, 2010, at or near Regina he did:

(1) While his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code .

(2) Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol, in onehundred millilitres of blood, operate a motor vehicle, contrary to section 255(1) and section 253(1)(

b) of the Criminal Code. [2] This matter is set for trial before me on June 27, 2011. Counsel for the accused has advised the Court that at trial thedefence will allege that the accused was denied his right to consult counsel of his choice, contrary to

section 10(

b) of the Charter, in thathe was not afforded a reasonable opportunity to contact private counsel. [3] In anticipation of advancing this position at trial, counsel sought certain documentation from the Crown. The Crown has notprovided the requested documentation. As a result counsel for the accused now applies to the Court in advance of trial for an orderpursuant to

section 7 of the Charter of Rights and Freedoms requiring the Crown to disclose the following documents: Regina Police Service Manuals, Training Manuals and Memoranda and directives or other documents pertaining to the procedures to befollowed in providing accused persons with their rights to counsel and their access to counsel and with respect to training materials whichwere used in the training of the officers involved in the arrest and processing of the accused in the present case; [4] The defence takes the position that the requested documents “are relevant to the issue of whether the accused’s rights toobtain and consult counsel of his choice was infringed or denied contrary to

section 10(

b) of the Canadian Charter of Rights andFreedoms”. The defence also takes the position that the requested documents would also be relevant to an analysis pursuant to section24(2) of the Charter as set out in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, in particular whether a

section 10(

b) Charterbreach was committed in good faith or involved deliberate and egregious police conduct. [5] In this application, the defence is seeking first party disclosure from the Crown and relies upon the law as set out in R. v.Stinchcombe, [1991] S.C.R. 326. [6] This application raises three issues, being: A. whether the nature of the request by the defence is for Crown disclosure or for the production of third party records; B. whether the Regina Police Service materials are relevant; and C. whether the Regina Police Service materials are privileged. [7] For the reasons that follow, the application for disclosure is dismissed.

First Party Disclosure by the Crown [8] First party disclosure requirements were initially set out by the Supreme Court of Canada in R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326. The Crown has a general duty to disclose “all information, whether inculpatory or exculpatory, exceptevidence beyond the control of the prosecution, clearly irrelevant or privileged”. Providing the material is in possession of the Crown,the burden lies with the Crown to justify the non-disclosure of the requested material on the basis of clear irrelevance, privilege or thatit’s disclosure is otherwise governed by law.

Production of Third Party Records [9] In R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, the Supreme Court set out a two-part test for the productionof records held by a third party and beyond the possession or control of the prosecuting Crown. In R. v. McNeil, 2009 SCC 3 ,[2009] 1 S.C.R. 66, Madam Justice Charron summarised the two-part O’Connor test as follows:

First the applicant must demonstrate that the information contained in the records is likely relevant. . . . .Second, if the threshold test oflikely relevance is met, the Court may order the production of the records for its inspection. With the targeted documents before it, theCourt weighs "the positive and negative consequences of production, with a view to determining whether, and to what extent, productionshould be ordered" (O'Connor, at para. 137).

The second part of the O'Connor test essentially requires a Court to conduct a balancing ofthe third party's privacy interest in the targeted documents, if any, and the accused's interest in making full answer and defence. Expanded First Party Disclosure by the Crown [10] In McNeil, supra, the accused, who was charged with drug offences, wished to obtain production of police disciplinary recordsand criminal investigation files relating to the arresting officer, who was himself being prosecuted for drug-related misconduct.

Theissue before the Court was whether this information should be dealt with as a third party disclosure application or whether it fell withinthe Crown's first party disclosure obligation. Although the information that was sought was not actually in the hands of the prosecutingCrown, because of the obvious relevance of the information to the credibility of the Crown's key witness, the Court held that the Crownwas required to obtain the information and disclose it as part of the Stinchcombe disclosure package. [11] In R. v.

McNeil, supra, Charron J. set out the Crown’s duty of disclosure as follows: The Stinchcombe Duty to Disclose the Fruits of the Investigation 17 The Crown's obligation to disclose all relevant information in its possession relating to the investigation against an accused is wellestablished. The duty is triggered upon request and does not require an application to the Court.

Stinchcombe made clear that relevantinformation in the first party production context includes not only information related to those matters the Crown intends to adduce inevidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accusedin the exercise of the right to make full answer and defence (pp. 343-44).

The Crown's obligation survives the trial and, in the appellatecontext, the scope of relevant information therefore includes any information in respect of which there is a reasonable possibility that itmay assist the appellant in prosecuting an appeal. 18 While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions. Unless the information isclearly irrelevant, privileged, or its disclosure is otherwise governed [page 79] by law, the Crown must disclose to the accused allmaterial in its possession.

The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such thatdisclosure in the usual course may result in harm to anyone or prejudice to the public interest. The Crown's exercise of discretion infulfilling its obligation to disclose is reviewable by a Court. . . . 22 The Stinchcombe regime of disclosure extends only to material in the possession or control of the Crown. The law cannot imposean obligation on the Crown to disclose material which it does not have or cannot obtain: R. v. Stinchcombe, (SCC),[1995] 1 S.C.R. 754.

A question then arises as to whether the "Crown", for disclosure purposes, encompasses other state authorities. The notion that all state authorities amount to a single "Crown" entity for the purposes of disclosure and production must be quicklyrejected. It finds no support in law and, given our multi-tiered system of governance and the realities of Canada's geography, isunworkable in practice. As aptly explained in R. v.

Gingras (1992), (AB CA), 120 A.R. 300 (C.A.), at para. 14: If that line of reasoning were correct, then in order to meet the tests in Stinchcombe, some months before trial every Crown prosecutorwould have to inquire of every department of the Provincial Government and every department of the Federal Government. He wouldhave to ask each whether they had in their possession any records touching each prosecution upcoming. It would be impossible to carryout 1% of that task. It would take many years to bring every case to trial if that were required.

Accordingly, the Stinchcombe disclosure regime only extends to material relating to the accused's case in the possession or control of theprosecuting Crown entity. This material is commonly referred to as the "fruits of the investigation". 23 Under our Canadian system of law enforcement, the general duty to investigate crime falls on the police, not the Crown. The fruitsof the investigation against an accused person, therefore, will generally have been gathered, and any resulting criminal charge laid, bythe police.

While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in prosecutions:see, for example, s. 42(1)(

e) of the Ontario Police Services Act. Of particular relevance here is the police's duty to participate in thedisclosure process. The means by which the Crown comes to be in possession of the fruits of the investigation lies in the corollary dutyof police investigators to disclose to the Crown all relevant material in their possession.

[ 12 ] In McNeil , it was the clear relevance of the requested information which pushed it into the Stinchcombe package. As Charron J. explained: 54 When the police misconduct in question concerns the same incident that forms the subject-matter of the charge against the accused, the police duty to disclose information concerning police disciplinary action taken in respect of that misconduct is rather self-evident.

To state an obvious example, if a police officer is charged under the applicable provincial legislation for excessive use of force in relation to the accused's arrest, this information must be disclosed to the Crown. Where the misconduct of a police witness is not directly related to the investigation against the accused, it may nonetheless be relevant to the accused's case, in which case it should also be disclosed. For example, no one would question that the criminal record for perjury of a civilian material witness would be of relevance to the accused and should form part of the first party disclosure package.

In the same way, findings of police misconduct by a police officer involved in the case against the accused that may have a bearing on the case against an accused should be disclosed. Analysis [ 13 ] In this case I am of the view that the Regina Police Service materials are not in the possession or control of the prosecuting Crown. The materials being sought are internal documents in the possession or control of the Regina Police Service, which in my view is a distinct entity from the prosecuting Crown.

I am of the view that counsel for the defence should have made an O’Connor application to the Court following the procedure as set out at paragraph 27 in R. v. McNeil , supra . [ 14 ] If I have erred in my determination that the requested materials are in the possession and control of a third party, the Regina Police Service, I am of the further view that the requested materials are not relevant to these proceedings and hence the expanded first party disclosure obligations created by R. v.

McNeil do not apply here. [ 15 ] Three cases deal with the question of whether police training material is relevant and subject to disclosure. All three cases held that this type of material is not relevant and not subject to disclosure. [ 16 ] In R. v. Pangman , [2000] M.J. No. 318 (Q.B.) , the defence indicated that it intended to call evidence of policies, procedures and practices of the Winnipeg Police Service and other jurisdictions in relation to a Charter motion under

section 15 alleging unequal treatment by the police. Krindle J. concluded at follows: 11 Evidence of policies, procedures and practices generally, whether of the Winnipeg Police Service or of other police forces, is irrelevant and inadmissible to the establishing of the fact of the breach. If the policies were offensive to the Charter but the conduct of the officers complied with the Charter , there would be no breach of the Charter made out. If the policies were a model of Charter respect but the conduct of the officers offended the Charter rights of the accused, then the breach will be made out. [ 17 ] In R. v.

Ferrari , [2001] S.J. No. 431 (Q.B.) , the Court dealt with a disclosure application involving R.C.M.P. manuals and instruction material on police training programmes entitled "Pipeline" and "Convoy". These materials trained police in heightened observational, conversational and investigative skills and was designed to improve their ability to apprehend individuals involved in criminal activity, including the smuggling of contraband items such as drugs, alcohol, tobacco and stolen property, when they are travelling in vehicles.

Maurice J. dismissed the motion, stating: 7 The applicants argue that there is a reasonable possibility that the withholding of the material will impair their ability to establish possible violations of their s. 8 (unreasonable search or seizure), s. 9 (arbitrary detention), and s. 10(b) (right to counsel information) Charter rights during the stop and search. I cannot agree. Whether a person's Charter rights are violated during the course of a roadside stop depends on the conduct of the police officer carrying out the stop.

The training the officer received in anticipation of carrying out a roadside stop is irrelevant to the determination of a violation. What counts is what he does, not what he was trained to do. The material is not relevant to an issue in the proceedings. [ 18 ] In R. v. Ngo , [2006] M.J. No. 348 , the Court also dealt with a disclosure application involving Operation Pipeline/Convoy programme materials. It was alleged that these manuals were relevant to the allegations of racial profiling, racially motivated traffic stops and border-style questioning. Beard J. cited R. v. Pangman , supra and R. v.

Ferrari , supra and also held that the training material

was irrelevant to the Charter issues being raised. [ 19 ] Given my findings on relevance, I do not find it necessary to consider whether the requested materials are privileged. [ 20 ] The application for disclosure is dismissed. M.J. Hinds, J