R. v. Kooner, 2018 BCPC 355

Citation: R. v. Kooner 2018 BCPC 355 Date: 20181001 File No: 61921 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BALSHAR SINGH KOONER RULING ON APPLICATION OF THE HONOURABLE JUDGE P. D. WHYTE Counsel for the Crown: M. McCartan Counsel for the Defendant: M. Dhillon (agent for V. Michaels) Place of Hearing: Richmond , B.C. Date of Hearing: August 30, 2018 Date of Judgment: October 1, 2018 [ 1 ] Balshar Singh Kooner stands charged that on or about the 21st day of July, 2017, at or near Richmond in the Province of

[1] Balshar Singh Kooner stands charged that on or about the 21st day of July, 2017, at or near Richmond in the Province ofBritish Columbia, he did drive a motor vehicle, knowing he was prohibited from doing so pursuant to s. 215.43 of the Motor Vehicle Act,and contrary to section 95(1) of that same Motor Vehicle Act. [2] Mr. Kooner seeks further disclosure from the Crown, consisting of the following documents: 1. Full and complete details of the search of Mr. Kooner’s vehicle, as well as the search of both occupants of the vehicle; 2.

A printout of the computer query conducted by all individuals during the course of the investigation into Mr. Kooner; and 3. A transcript of all broadcast communications relevant to the vehicle investigation and vehicle stop, including communicationsfrom dispatch and any officer, and all communications between the officers themselves. [3] The Crown has agreed to investigate further the details of the search of the vehicle, and provide disclosure that results fromthat further investigation. Thus, the thrust of Mr. Kooner’s application is that described in the latter two paragraphs, above.

The brieffacts are as follows. [4] On the evening of July 21, 2017, Mr. Kooner was driving a 2003 GMC Sierra in Richmond, British Columbia. At the time ofthe investigation, he had a front passenger, Parmat Kooner. Mr. Kooner was stopped by Cst. Carmichael of the Richmond OrganizedCrime Unit after he passed an unmarked police unit on the shoulder, driving at a speed of approximately 35 kilometres per hour. Mr.Kooner’s vehicle was followed and eventually pulled over. Upon attending at the driver’s side door and meeting with Mr. Kooner, Cst.Carmichael requested license and registration documents. Mr.

Kooner provided insurance documents but said he had left his driver’slicense at home. [5] Mr. Kooner was arrested soon thereafter for driving while prohibited. He was placed in handcuffs, and remained handcuffedfor 33 minutes. [6] At some point during the investigation, the Kooner vehicle was searched and a small amount of drugs was found. No chargesresulted from the seizure, however, but the vehicle was impounded. [7] A number of other officers attended the scene of the investigation. However these members are not mentioned by name in theReport to Crown Counsel.

These members reportedly assisted in the search of the vehicle and its occupants. POSITION OF THE PARTIES [8] Ms. Dillon argued on behalf of Mr. Kooner that the requested disclosure is required for Mr. Kooner to make full answer anddefence to the charge. She submitted that the circumstances of the investigation go well beyond an ordinary drive while prohibitedinvestigation, as it involved multiple officers, and the principal investigator is associated with the Richmond Organized Crime Unit.

Theconcern, as I understood it, is that the stop may have been premised on a ruse, rather than a legitimate stop for Motor Vehicle Actpurposes. If the stop was shown to be arbitrary, it is submitted that Mr. Kooner might be in a position to forward a defence by claiminga breach of his rights as guaranteed under the Canadian Charter of Rights and Freedoms. [9] While Ms. Dhillon conceded that the charge is regulatory in nature and may not be subject to the stringent disclosurerequirements associated with true criminal matters, she urged the court to consider Mr.

Kooner’s circumstances, including the fact that hefaces a mandatory term of imprisonment if convicted. Ms. Dhillon argued that the charge is a full mens rea offence, and further that thepenalty for Mr. Kooner bears more resemblance to a criminal sanction. She drew the court’s attention to the fact that even manyCriminal Code violations do not include mandatory terms of imprisonment. In order to allow Mr. Kooner a fulsome opportunity to makeanswer and defence, it was argued that the enumerated disclosure documents ought to be provided. [10] Ms. McCartan for the Crown opposed the application, for two main reasons.

Firstly, she submitted that the charge faced by Mr.Kooner is simple and straightforward. None of the requested disclosure is essential to the case to be met by the defence. Secondly, Ms.McCartan argued that the request is well out of proportion to the seriousness of the charge. She expressed concern that the court wouldconsider making an order for such voluminous disclosure when there is, at best, a tenuous link between the requested disclosure and thecharge.

The amount of time and effort it would take to obtain and transcribe the requested documents is out of step with the nature of thecharge, and would set a concerning precedent regarding disclosure in non-criminal, regulatory matters. THE LAW [11] It is well-established that the Crown is obligated to disclose all relevant information in its possession relating to theinvestigation against an accused. In R. v.

Stinchcombe, the Supreme Court of Canada confirmed that relevant first party disclosureincluded not only that which the Crown intends to adduce in evidence against the accused, but also any information in respect of whichthere is a reasonable possibility that it may assist the accused in making full answer and defence to the charge. See R. v. Stinchcombe (SCC), [1991] 3 S.C.R. 326, at p. 338; R. v. McNeil, 2009 SCC 33 at para. 17. [12] However, the law is less demanding regarding the extent of the Crown’s obligation to disclose in a regulatory context. [13] In R. v.

MacPherson, 2017 ONSC 7378, the Ontario Superior Court of Justice ordered the disclosure of GPS data in thepossession of the police that was used by three officers involved in the accused’s arrest for possession for the purpose of trafficking. TheGPS data was considered to be relevant by the accused, as he was of the view that it would either verify or cast doubt upon the evidenceof police officers regarding their location at various times during the investigation.

The accused submitted that the GPS data wouldsupport his theory that he was targeted by the police, and had been arbitrarily detained during the investigation. [14] Despite the fact that the GPS data was unrelated to the essential elements of the offence, the court determined that it should bedisclosed. The accused’s theory was found to have some air of reality and was not purely fanciful.

[15] MacPherson is distinguishable from the instant case by the fact that the applicant faced a true criminal prosecution, and wasthus subject to the fulsome disclosure obligation described in Stinchcombe. Such is not the case for Mr. Kooner; I thus viewMacPherson as having limited application. [16] In R. v. Wong, [2016] BCPC 189, the court drew a distinction between criminal and regulatory disclosure within the context ofa speeding violation pursuant to s. 146(1) of the Motor Vehicle Act. Adair, Judicial Justice, noted that the disclosure obligation in trafficcourt is different than in indictable matters.

Justice Adair noted that Justice Sopinka in R. v. Stinchcombe recognized that courts wouldhave to give direction as to “where to draw the line” regarding disclosure when dealing with less serious offences. [17] The concept of proportionality as pertaining to the Crown's disclosure obligation was discussed in R. v. Collins 2010 ABPC 19. The accused in Collins was charged with speeding under Alberta’s Traffic Safety Act. He sought some 37 items of disclosure, andargued that there was no meaningful distinction between the prosecution’s duty to disclose in criminal and regulatory prosecutions.

Theaccused sought a judicial stay of proceedings on the basis that the Crown had not complied with its fulsome disclosure obligations. [18] At paragraph 54, Rosborough, PCJ remarked that disclosure rules must be adjusted to take account of the practical limits of thesystem of justice. The lawful interest of others involved in the process instils a degree of variability. [19] R. v. Collins argued for a flexible approach to disclosure obligations within a regulatory framework, one that was responsive tothe complexities of the particular matter under prosecution.

At paragraph 61, Rosborough PCJ provided a non-exhaustive list of factorsto consider when determining the extent to which disclosure obligations are attenuated in the context of regulatory offences, including: (

a) the seriousness of the offence; (

b) the complexity of the case, including the number of witnesses, experts, reports, use of search warrants, etc.; and (

c) the range of penalty upon conviction. [20] In R. v. Rau, [2014] ONSC 5573, the Ontario Superior Court of Justice was tasked with determining the disposition of anapplication for a stay of proceedings in the context of a Rowbotham application. The Applicant was charged with failure to stop forpolice under the Highway Traffic Act. The accused faced incarceration if convicted. He had applied for legal aid but had been rejected. He argued that the charge was serious, the prosecution complex and the penalty significant. In the absence of a state-funded defence, hisCharter right to a fair trial would be breached.

The application was opposed by the Crown. [21] The court dismissed the application, noting the regulatory nature of the prosecution. Despite the fact that the accused faced 14days incarceration if convicted, the court determined that this factor, in and of itself, did not justify an order for state funding. Thecharge was not among the most serious known to law. The court referenced R. v.

Wholesale Travel Group Inc. (SCC),[1991] 3 S.C.R. 154 at paras. 149 and 150, where the Supreme Court of Canada directed that a contextual approach be taken on adetermination of the balance to be struck between individual rights and the interests of society under the Charter. It was noted that aCharter right may have a different scope and implication in a regulatory context than in a truly criminal one. See Rau at para. 17. [22] Ultimately, the court determined that the circumstances of the case were not sufficiently complex or serious to warrant a statefunded defence. [23] Ms.

McCartan argued that Rau has clear relevance to Mr. Kooner’s application, despite the latter context being a Rowbothamapplication. In a regulatory sense, society’s interests must be considered when determining the scope of disclosure obligations. Abalance must be struck, and in a way that is markedly different than what might be the case in a criminal prosecution.

In less serious,less complex regulatory matters, it is simply too burdensome, it was argued, to require the Crown to extend their disclosure obligation toinclude items argued, to require the Crown to extend their disclosure obligation to include items such as those sought in this application. A reasonable limit ought to be imposed, one that is commensurate to the relatively simple and straightforward nature of the case to bemet. ANALYSIS [24] Of the cases provided to me by the Crown and defence, I consider R. v.

Collins to be of the most assistance in determiningwhether the Crown’s disclosure obligation should include the items sought by Mr. Kooner. I propose to analyse this application withregard to Rosborough, PCJ’s enumerated criteria. [25] Firstly, the seriousness of the offence. [26] Despite the real possibility of jail in the circumstances, it cannot be said that the charge faced by Mr. Kooner is among the mostserious known to law. The presence of a mandatory period of incarceration does not, in my view, alter this fact, nor does the presence ofa full mens rea component.

While there are some similarities to a criminal prosecution, a conviction would not result in any form ofcriminal sanction. No formal criminal record would result. No ancillary orders for DNA are possible. It is highly unlikely that a periodof probation would be sought or, indeed, appropriate. The stigma associated with a criminal conviction does not apply. This militates infavour of a curtailed disclosure obligation. [27] Secondly, the complexity of the case. [28] While the basic narrative as relayed by Ms. Dhillon is straightforward, there are unusual parts to this prosecution.

Firstly, itwas undertaken by a member of the Richmond Organized Crime Unit, operating in plainclothes and in an unmarked vehicle. Othermembers attended, although it is unclear who those members were. The accused was placed under arrest, as the investigation appearedto become criminal in nature. The accused was placed in handcuffs for approximately 33 minutes before being released on scene. Thesubtext suggests that the matter was not a typical drive while prohibited investigation.

The circumstances raise the possibility thatsomething more may have been in the minds of the investigators than a simple vehicle stop for regulatory purposes.

[ 29 ] I do not wish to suggest that an officer cannot have an ulterior motive in mind when initiating a valid vehicle stop. The fact that an officer had other reasons to stop a vehicle does not transform a lawful stop for Motor Vehicle Act purposes into an unlawful one: R. v. Kaddoura , 2009 BCCA 113 .

However, in the unusual circumstances of this case, a further investigation of the motives of the investigating officer and his or her colleagues may be warranted. [ 30 ] Third, the range of penalty upon conviction. [ 31 ] As a second offence, and having been served with a Notice to Seek Greater Punishment, the accused faces a minimum fine of $500 and a 14 day jail term, as well as a 12 month driving prohibition.

He could face a more stringent sanction: the range for a second offence for driving while prohibited is a fine between $500 and $2,000, and a term of imprisonment from 14 days to not more than one year. [ 32 ] It is the mandatory term of imprisonment that underscored much of Ms. Dhillon’s submission. She argued that imprisonment is a sanction more associated with true criminal offences. [ 33 ] Having considered these criteria, I am of the view that the circumstances of Mr. Kooner’s case suggest an expansion of the Crown’s disclosure obligation. However, that expansion shall not be unlimited.

The principle of proportionality dictates, to a large extent, my views on the extent to which that obligation should be enlarged. [ 34 ] With respect to the enumerated requests for disclosure, firstly, the computer query printout. [ 35 ] I am of the view that this request simply goes too far. I do not think a printout of every keystroke entered by all individuals involved in the investigation of Mr. Kooner is required for him to make full answer and defence to the charge. Such a request is out of proportion to the seriousness of the charge.

Nor has the defence established, to my satisfaction, the relevance of these inquiries. I decline to order that the Crown produce a printout of the computer query or queries conducted by the individuals involved in the Kooner investigation. [ 36 ] However, I reach a different conclusion regarding the request for recordings or transcripts of the communications between individuals involved in the investigation. [ 37 ] I reiterate that it is the specific circumstances of this investigation that give rise to the potential relevance of this disclosure.

These recordings are likely to provide information regarding the nature of the vehicle stop and the impetus behind it. The accused’s concern that the stop may have been arbitrary is not entirely without foundation. At the very least, the circumstances call out for further investigation. [ 38 ] In saying so, I have considered the burden such an order will likely have on limited Crown and police resources.

However, having balanced the somewhat unique circumstances of this case, the likely relevance of the disclosure, and the penalty faced by the accused, I am of the view that it is appropriate that these recordings be disclosed. [ 39 ] Accordingly, I order that the Crown provide to Mr. Kooner recordings of all broadcast communications relevant to the vehicle investigation and vehicle stop, including communications from dispatch and any officer, and all communications between the officers themselves. ______________________ P. D. Whyte Provincial Court Judge