R. v. Lockhart, 2018 NLCA 72

Cameron D. Lockhart (appellant) v. Her Majesty the Queen (respondent) (17/36) Indexed As: R. v. Lockhart 2018 NLCA 72 3 C.A.N.L.R. 693 Court of Appeal of Newfoundland and Labrador Welsh, White and O’Brien JJ.A. December 12, 2018

Summary: The appellant appealed his conviction for an assault against his former girlfriend on the basis that the charges should have been stayed because the conduct of the police, in respect of the investigation and disclosure for purposes of the trial, constituted an abuse of process. In preparing for his trial, the appellant applied for an order for disclosure, which was resisted by the RCMP until ordered disclosed. The judge found that this caused a delay, but it was not irremediable. He dismissed the appellant’s application for a stay of proceedings based on an abuse of process. Held: Appeal dismissed.

Welsh J.A. (White and O’Brien JJ.A. concurring): Cases of abuse of process generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category). The test to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetrated or aggravated through the conduct of the trial, or by its outcome;

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits.

Under the third step, in a residual category case, factors that may be considered include the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. The applications judge erred in characterizing disclosure of the information at issue in the hands of the police as first party disclosure.

While the material was required to be disclosed, it was properly the subject of an application for third party disclosure. The Crown undertook the appropriate procedure by making an O’Connor application to have the court determine whether the information should be disclosed and complied with the disclosure order without delay. The judge therefore erred by determining that the appellant’s right under

section 7 of the Charter was breached because failure to provide complete disclosure, or to make disclosure in a timely way, may result in a breach of

section 7 where the failure impairs or prejudices an accused’s right to make full answer and defence, which did not occur. The judge rejected the appellant’s submission that abuse of process under the residual category occurred because the motive for pursuing and laying the charges against him was the objective of dismissing him from his employment with the RCMP.

The fact that the investigation of criminal charges in this case was initiated as a result of an internal employment related investigation does not lead to the conclusion that the investigation of the criminal charges amounted to an abuse of process provided, as here, there was a basis for pursuing the criminal investigation. There is no basis on which to conclude that the applications judge erred in refusing to stay the charges against the appellant. The appeal should be dismissed.

Cases cited: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390 R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 Counsel: Nick Avis Q.C., for the appellant; Iain Hollett, for the respondent. This appeal was heard on September 17, 2018 before Welsh, White and O’Brien JJ.A. The following judgment was delivered on December 12, 2018 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] Cameron Lockhart was convicted by a jury of one count of assaulting his former girlfriend.

The complainant was not injured asa result of the assault which occurred during an argument. Mr. Lockhart was sentenced to a conditional sentence of fourteen days,together with ancillary orders. Mr. Lockhart appeals his conviction on the basis that the charges should have been stayed because theconduct of the police, in respect of the investigation and disclosure for purposes of the trial, constituted an abuse of process. BACKGROUND [2] In February 2014, Mr.

Lockhart was charged with three counts of assaulting and one count of uttering a threat to cause harm toA.S. between January 1 and December 24, 2010, together with two counts of assaulting A.E. and two counts of mischief to propertybetween February 1 and September 1, 2011. Mr. Lockhart was acquitted by a jury of all the charges except one count of assaulting A.S. [3] The offence occurred when Mr. Lockhart was approximately twenty-five years of age and in a relationship with A.S.

He hadgraduated from the RCMP training academy in July 2007 and was assigned to the Harbour Grace detachment. [4] In preparing for his trial, Mr. Lockhart applied for an order for disclosure because he was convinced that he had not receivedcomplete disclosure from the Crown. The information he sought related to internal investigations by the RCMP into his conduct from2012 to 2014.

The applications judge explained the position of the parties (2015 NLTD(G) 184 (the “disclosure decision”)): [12] The RCMP submit that they stand in the position of a third party record holder, entitling them to the disclosure process articulatedin R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411.

The accused counters that the RCMP does not stand in the position of athird party record holder here because they are the investigating police force with respect to the charges before the Court and haveinitiated the internal code of conduct hearings bearing on the very conduct alleged in the criminal matter, referred by the RCMP asparallel charges. [5] The judge concluded that the information Mr. Lockhart sought was not third party information because it was information abouthimself directly related to the criminal charges.

In ordering disclosure, the judge explained: [23] The information sought here by the accused did not relate to a third party witness and was not in the hands of a third party entity. Iam satisfied that the information sought here falls within the “first party” disclosure to which Cst. Lockhart was entitled in making hisfull answer and defence to the charges pending against him. … [24] The information bears on the very subject-matter of the charges to which Cst. Lockhart faces criminal prosecution, involvingwitnesses and complainants in these proceedings.

It is information that was referenced in the materials provided in first party disclosure. The RCMP, as the investigating police force, had knowledge and access to these records, and they should have been disclosed to theCrown, and subject to the exercise of the Crown’s discretion, forwarded to the accused as part of the first party disclosure. The court-ordered disclosure was provided to Mr. Lockhart in January 2016. [6] With respect to the delay in providing disclosure regarding the internal conduct investigation, the applications judge concluded(2016 NLTD(G) 166 (the “abuse of process decision”)):

[80] I am satisfied that the circumstances relating to the delayed disclosure of the internal investigation records and statements of Cst.McEntegart and A.S. breached [Mr. Lockhart’s]

section 7 Charter right to disclosure. [Mr. Lockhart] has not however, established thatthe disclosure delays demonstrate “irremediable” prejudice to the “integrity of the justice system” … . I am satisfied that the 15December 2015 disclosure Order made in these proceedings and the adjournment of the trial at the request of [Mr. Lockhart] provided ajust and appropriate remedy for the non-disclosure by the RCMP, as well as the fact that leave was given to [Mr. Lockhart] in theDecember disclosure hearing to argue his entitlement to costs, on notice to the Crown and Counsel for the RCMP.

This hearing has yetto occur. [7] Further, Mr. Lockhart submits that he did not obtain full disclosure of notes that, he says, were required and should have beenkept by Superintendent Dowden regarding the internal conduct investigation. The applications judge rejected that submission on thebasis that there was “no evidence to substantiate this” (the abuse of process decision, at paragraph 50). [8] The applications judge also rejected Mr.

Lockhart’s application for a stay of proceedings based on the conduct of the RCMP (theabuse of process decision): [81] I further find that the evidence presented in this hearing has not demonstrated that the conduct of the RCMP investigation into thepending criminal charges satisfies the legal test for the establishment of an abuse of process justifying a stay of proceedings, relying onthe law as recently articulated by the Supreme Court of Canada in Babos. [9] In the result, the application for a stay of proceedings was dismissed.

ISSUES [10] At issue is whether the applications judge erred in concluding that the conduct of the RCMP, relating to issues of disclosure andthe manner of investigating the criminal matters, did not result in an abuse of process warranting a stay of proceedings. ANALYSIS Abuse of Process – the Law [11] Principles regarding a stay of proceedings for abuse of process in the criminal context are discussed in R. v. Babos, 2014 SCC 16,[2014] 1 S.C.R. 309.

Moldaver J., for the majority, identified two categories of abuse: [31] … These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the“main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process(the “residual” category) (O’Connor [ (SCC), [1995] 4 S.C.R. 411], at para. 73). … [32] The test to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetratedor aggravated through the conduct of the trial, or by its outcome” …

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decision on the merits” … . [12] Under the third step, in a residual category case, factors that may be considered include: [41] … the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoingproblem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of onthe merits. … But in residual category cases, balance must always be considered. [13] In addition, Moldaver J. commented that residual category cases warranting a stay of proceedings will be “exceptional” and“very rare”.

Incidents of impugned conduct may be assessed individually or cumulatively, depending on the circumstances. Application of the Law Disclosure [14] In failing to disclose information regarding internal investigations by the RCMP into Mr. Lockhart’s conduct during 2012 to2014, the police relied on their characterization of the records as “third party disclosure”. Principles regarding third party disclosure arediscussed in R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390.

Karakatsanis J., for the Court, explained: [11] The Crown has a broad duty to disclose relevant evidence and information to persons charged with criminal offences. Stinchcombe[ (SCC), [1991] 3 S.C.R. 326], at pp. 336-40, provides that the Crown is obliged to disclose all relevant, non-privilegedinformation in its possession or control so as to allow the accused to make full answer and defence. For purposes of this “first party”disclosure, “the Crown” does not refer to all Crown entities, federal and provincial: “the Crown” is the prosecuting Crown. All other

Crown entities, including police, are “third parties”. With the exception of the police duty to supply the Crown with the fruits of theinvestigation, records in the hands of third parties, including other Crown entities, are generally not subject to the Stinchcombe disclosurerules. [12] In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, this Court recognized that the Crown cannot merely be a passive recipient ofdisclosure material.

Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police orother Crown entities that is potentially relevant to the prosecution or the defence. This Court also recognized that police have a duty todisclose, without prompting, “all material pertaining to its investigation of the accused” (para. 14) as well as other information“obviously relevant to the accused’s case” (para. 59). [13] In R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, at paras. 15-34, this Court established a separate disclosure regimefor records in the hands of “third parties” that are “likely relevant” to an issue at trial. Under O’Connor, an application is made to thecourt and the judge determines whether production should be compelled in accordance with a two-stage test. At the first stage, theapplicant has an onus to establish the likely relevance of the record.

At the second stage, the judge examines the record and determineswhether, and to what extent, it should be produced for the accused: in the case of relevant information, privacy interests yield to the rightto a full answer and defence. (Emphasis added.) [15] In this case, applying the principles discussed in Quesnelle, the applications judge erred in characterizing disclosure of theinformation at issue in the hands of the police as first party disclosure. The disclosure sought by Mr.

Lockhart related to the internalconduct investigation, rather than to the investigation of the criminal charges in respect of A.S. and A.E. The latter would be first partydisclosure comprising information the police had a duty to disclose without prompting. However, the record of the police internalconduct investigation, not obviously relevant to the criminal charges against Mr.

Lockhart, would amount to third party disclosure,requiring an application of the analysis discussed in Quesnelle. [16] Although the applications judge characterized the disclosure of the internal conduct investigation as first party disclosure, it isclear from her decision that she was satisfied both that Mr. Lockhart had established the likely relevance of the information he soughtand that the record was relevant to his right to make full answer and defence to the charges.

Accordingly, the components of the twostages discussed in Quesnelle were satisfied and the information was subject to disclosure. [17] In the result, I conclude that an O’Connor application was an appropriate procedure for purposes of determining whether therecord of the internal police investigation regarding Mr. Lockhart’s conduct was subject to disclosure. In the circumstances, applyingthe Quesnelle analysis to the third party disclosure leads to the conclusion that the judge did not err in ordering that the record of theinternal conduct investigation was relevant and subject to being disclosed.

Disclosure occurred within a short time after the applicationsjudge’s decision. [18] Finally, on the question of disclosure, I do not accept Mr. Lockhart’s submission that Superintendent Dowden did not make fulldisclosure of his notes. The applications judge made a finding of fact that there was no evidence to substantiate Mr. Lockhart’sallegation. There is no basis on which to conclude that the judge erred in making that determination. Internal Conduct Investigation [19] Mr. Lockhart submits that the charges against him should have been stayed based on the conduct of the police amounting to anabuse of process.

He relies on the residual category of cases where the conduct of the police would not create a threat to trial fairness butwould risk undermining the integrity of the judicial process. [20] I begin with the applications judge’s conclusion that “the circumstances relating to the delayed disclosure of the internalinvestigation records and statements of Cst. McEntegart and A.S. breached [Mr. Lockhart’s]

section 7 Charter right to disclosure” (theabuse of process decision, at paragraph 80).

Section 7 of the Canadian Charter of Rights and Freedoms, which protects the right of anaccused to make full answer and defence, provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [21] The applications judge does not explain the basis on which she determined that Mr. Lockhart’s right under

section 7 had beenbreached. Failure to provide complete disclosure, or to make disclosure in a timely way, may result in a breach of

section 7 where thefailure impairs or prejudices an accused’s right to make full answer and defence (R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, atparagraph 20). Disclosure is intended to “ensure that the accused receives a fair trial, that the accused has an adequate opportunity torespond to the prosecution case and that in the result the verdict is a reliable one” (Bjelland, at paragraph 20). [22] In Bjelland, Rothstein J., for the majority, went on to explain: [21] However, the Crown’s failure to disclose evidence does not, in and of itself, constitute a violation of s. 7.

Rather, an accused mustgenerally show “actual prejudice to [his or her] ability to make full answer and defence” (R. v. O’Connor, (SCC), [1995]4 S.C.R. 411, at para. 74) in order to be entitled to a remedy under s. 24(1). [23] In this case, where the RCMP took the position that the internal conduct investigation involved third party disclosure, the Crownundertook the appropriate procedure by making an O’Connor application to have the court determine whether the information should bedisclosed. The police and the Crown complied with the disclosure order without delay.

In the circumstances, I conclude that theapplications judge erred in determining that Mr. Lockhart’s right under

section 7 of the Charter was breached. [24] Separate from

section 7 of the Charter, Mr. Lockhart relies on abuse of process under the residual category as contemplated inBabos on the basis that the motive for pursuing and laying the charges against him was the objective of dismissing him from his

employment with the RCMP. That submission was rejected by the applications judge (abuse of process decision): [81] I further find that the evidence presented in this hearing has not demonstrated that the conduct of the RCMP investigation into the pending criminal charges satisfies the legal test for the establishment of an abuse of process justifying a stay of proceedings, relying on the law as recently articulated by the Supreme Court of Canada in Babos . [82] In so deciding, I have considered the cumulative record, including the history of the internal code of conduct investigations. [Mr.

Lockhart] has not established that the code of conduct investigations or the investigation by the RNC into sexual exploitation have denigrated the investigation into the pending criminal charges thereby evidencing the “clearest of cases” in which the integrity of the justice system is impugned. The evidence reveals that the RCMP pursued allegations of domestic assault. I do not consider the fact that 2 complainants in separate alleged incidents of assault did not report the alleged assaults to the RCMP a factor which taints the investigation and diminishes society’s expectations of fair play.

There was no evidence provided respecting the complainant’s reasons for not reporting the alleged assaults. Nor can this Court make a determination that the fact that no charges were laid as a result of the sexual exploitation investigation was the motivation for the current criminal charges against [Mr. Lockhart]. Likewise the assertion that Cst. Buriss’s work was in furtherance of the RCMP attempt to dismiss Cst. Lockhart is unfounded. [ 25 ] Based on the evidence, the applications judge concluded that Mr. Lockhart had not met the first requirement of the Babos analysis; that is, Mr.

Lockhart had not established that prejudice to the integrity of the justice system would be “manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” ( Babos , at paragraph 32 ). [ 26 ] In reaching this conclusion, it is apparent that the judge considered the facts surrounding the laying of criminal charges, including the manner in which the police conducted the investigation by approaching the complainants, former girlfriends of Mr.

Lockhart, then interviewing them on more than one occasion. [ 27 ] In this case, the judge was satisfied that there was no evidence that the police attempted to influence the complainants other than to encourage them to come forward with information on which the charges were grounded. Mr. Lockhart’s ability to make full answer and defence to the charges was not impaired by the manner in which the RCMP proceeded.

Further, as found by the applications judge, there was no evidence to establish, with respect to investigating the charges involving A.S. and A.E., that the police conduct constituted an abuse of process as discussed in Babos . [ 28 ] Finally, Mr. Lockhart submits that, in the absence of the internal investigation, the police would not have contacted his former girlfriends for purposes of investigating criminal charges. While this is true, in a given situation, the police may pursue investigations for a variety of reasons.

For example, the conduct of members of a police force may come under greater scrutiny in certain respects since the public expects those members, by virtue of their employment, to meet certain standards. This may apply particularly in the case of possible domestic abuse, which was at issue in this case. Not only is a certain standard expected of members of a police force in this context, but there may be a reluctance by victims to come forward with complaints where the allegation will be investigated by other police officers.

The fact that the investigation of criminal charges in this case was initiated as a result of an internal employment related investigation does not lead to the conclusion that the investigation of the criminal charges amounted to an abuse of process provided, as here, there was a basis for pursuing the criminal investigation by approaching Mr. Lockhart’s former girlfriends. [ 29 ] In the result, whether Mr. Lockhart has an employment-based remedy as a result of the manner in which the police conducted the internal conduct investigation and the manner in which Mr.

Lockhart was treated during the investigation is a separate issue falling within the scope of employment and discipline as applied to Mr. Lockhart as a member of the RCMP. In the absence of a causal connection to the charges, which the applications judge found as a fact was not established, the internal investigation of Mr. Lockhart’s conduct by the police does not amount to abuse of process in respect of the criminal charges. [ 30 ] Finally, the applications judge concluded that, given that this was a pre-trial application, “the law affords [Mr.

Lockhart] a further opportunity to advance [an abuse of process application] should circumstances arise from the evidence adduced at trial” (abuse of process decision, at paragraph 89). That option was not engaged for purposes of this appeal which was directed to the decision of the applications judge.

SUMMARY [ 31 ] In

summary, there is no basis on which to conclude that the applications judge erred in refusing to stay the charges against Mr. Lockhart on the basis of abuse of process arising from the conduct of the police with respect to issues of disclosure and the manner of investigating the criminal matters. [ 32 ] Accordingly, I would dismiss the appeal. Appeal dismissed .