R. v. Poole Date:, 2016 BCPC 77

Citation: R. v. Poole Date: 20160122 2016 BCPC 0077 File No: 76643-8 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. IAN VICTOR POOLE RULING ON APPLICATION OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: L. Mascolo Appearing on their own behalf: Ian Poole Place of Hearing: Nanaimo , B.C. Date of Hearing: January 22, 2016

Date of Judgment: January 22, 2016 [ 1 ] THE COURT (orally): Ian Victor Poole is before me. Mr. Poole has brought an application to this court, filed on January 20th, 2016. In his application, he is seeking to obtain disclosure from Crown of certain documents which he says relate to his past convictions and for which he has not been able to either obtain through his lawyer who acted for him at that time, or through Crown, or through access to information, or through the RCMP. Therefore, Mr.

Poole is seeking an order of this court that Crown be directed to provide disclosure of certain information arising out of his convictions. [ 2 ] Mr. Poole was charged on Information 76643-C-5, which contained eight counts. These eight counts arise out of various allegations of breaching of a Common Law Peace Bond imposed upon him by the Honourable Judge Gouge on May 24, 2012 (the "Common Law Peace Bond"). [ 3 ] The Common Law Peace Bond contained seven conditions. Those conditions essentially provided protection for a number of named individuals and limited the behaviour of Mr. Poole against those individuals.

The conditions may be summarized in the following fashion. [ 4 ] Condition number 2 was a prohibition that he enter any part of property located at a certain address in Nanaimo, British Columbia. [ 5 ] Condition number 3 prohibited him from posting any signs, drawings, written messages or images of any kind on public property which were visible from any part of property located at a certain address, being the same address as referred to in condition number 2. [ 6 ] Condition number 4 was a prohibition for him communicating, directly or indirectly, in any way with any of the following individuals.

I will use initials to describe these individuals. Those individuals are V.A., B.W., U.C., E.A., and S.A. [ 7 ] Condition number 5 was a prohibition preventing Mr.

Poole from delivering any gifts to any of the following individuals, (again using initials): V.A., B.W., U.C., E.A. and S.A. [ 8 ] Condition number 6 was a prohibition that he not approach within ten metres of any of the individuals that I have referred to above by initials. [ 9 ] Condition number 7 stated he shall not be at liberty to have any communication with another individual, namely A.G. [ 10 ] As a result of investigations conducted by the RCMP, they came to the conclusion that charges were warranted for a number of offences arising out of the breach of the Common Law Peace Bond, and specifically that there were reasonable grounds for a charge to be laid for criminal harassment pursuant to s. 264 of the Criminal Code . [ 11 ] When those charges were laid, Mr.

Poole was arrested. Mr. Poole was self-represented at the time of his arrest. He had a bail hearing; he was detained by the judge following the conduct of that bail hearing; he remained in custody pending the disposition of matters relating to the eight charges that he faced. [ 12 ] At that point, he was able to obtain legal aid. He sought the assistance of Bert King, Q.C., a prominent, senior member of the criminal bar on Vancouver Island. [ 13 ] The circumstances are not entirely clear, but it appears that some form of disclosure would have been given to Mr.

Poole at the time of his first appearances before the court, and certainly prior to the bail hearing which, as I understand it, was conducted on his behalf with the assistance of duty counsel. [ 14 ] Crown does have records that indicate that a significant amount of disclosure was made to Mr. King as counsel for Mr. Poole. That included, amongst other things, an audio disc and copies of statements taken from V.A. and U.C. V.A. is the mother of U.C. At the time of these offences, U.C. was a young female child and was approximately 12 years of age. [ 15 ] The matter came before the sentencing judge.

A sentence was imposed upon Mr. Poole, as a result of what I understand to be a joint submission made by both Crown as well as defence. [ 16 ] Mr.

Poole entered a plea of guilty to Count 7 on the Information, which reads as follows: Ian Victor Poole, from the 5th day of September, 2011 to the 28th day of March, 2013, inclusive, at or near Nanaimo, in the Province of British Columbia, did without lawful authority and knowing that another person was harassed or was reckless as to whether the other person was harassed, engage in conduct that caused that other person, [V.A.], to reasonably fear for her safety or the safety of anyone known to her, contrary to

Section 264 of the Criminal Code . [ 17 ] As a result of what I understand to be the joint submission made to the sentencing judge, Mr. Poole was sentenced to a time- served sentence, having been in remand for several weeks, and in addition, he was placed on a Probation Order for a period of two years. [ 18 ] The Probation Order contained several conditions, many of which mirror the provisions of the Common Law Peace Bond which had been previously imposed upon Mr. Poole for a duration of some ten years. The Probation Order expired this past September of 2015. [ 19 ] During the period that Mr.

Poole was bound by both the Probation Order as well as by the Common Law Peace Bond, he started communicating with a number of individuals. In particular, he communicated with his former lawyer. He sought to obtain information that had been disclosed to his former lawyer by Crown in accordance with Crown's customary policy and with the requirements of

disclosure under the Supreme Court of Canada decision in R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326. Mr. Poolewas unsuccessful in obtaining that information from Mr. King. [20] It is noteworthy that a letter dated July 19th, 2013, from Crown counsel to Mr. King forwarded a list of a number of documentsand discs, notes, occurrence reports, victim impact statements and like information, totalling 17 in number. Part of the documentationthat was forwarded was a CD. The letter from Crown to Mr.

King provides the following information, and I quote [as read in]: This disclosure contains a CD of the audio statement of the victim and a disc containing the technical examination reports. Both discscontain personal information of the witnesses that cannot be vetted prior to disclosure. As a result, we require your undertaking that thispersonal information will not be disclosed to your client. If you are unable to agree to this undertaking, please return the disc to ouroffice. [21] I understand from the circumstances outlined by Crown that the discs and other information were not returned by Mr.

King toCrown office pursuant to the imposed conditions contained within the letter of July 19th, 2013. [22] Mr. Poole continued to correspond with Crown counsel starting on November 3rd, 2015. He also apparently had communicatedwith his local MLA about his wish to obtain certain of the disclosure documents that had been provided to his lawyer. [23] In responding letters from local Crown counsel, it was made very clear to Mr. Poole that Crown was not going to be providingMr. Poole with copies of statements of two of the complainants, namely V.A. and U.C.

Crown indicated in a letter dated November23rd, 2015, that they had explained to the local MLA that requests for this information must be done through Freedom of InformationLegislation. [24] Mr. Poole then brought this matter before this court in order to obtain the disclosure of documents which he says he requiresand, in particular, documents relating to the statements given by V.A. and U.C. [25] Crown has indicated in submissions made to me today that they are opposing the application brought by Mr. Poole in order toobtain the information that he is seeking.

Crown's position can be summarized as follows: [26] First, Mr. Poole has entered a plea of guilty on the offence for which the documents provided by Crown to Mr. King on behalfof Mr. Poole were relevant. Mr. Poole having entered a plea of guilty to the offences on Count 7, and no appeal of that sentence havingbeen undertaken by Mr. Poole, the sentence imposed upon Mr.

Poole and the accompanying Probation Order have now been served andare therefore both have been completed. [27] Second, Crown indicates that there are security concerns for the victims of the offences, who still enjoy the protection of theCommon Law Peace Bond. [28] Finally, Crown says that they are resistant to providing any of the information being sought by Mr. Poole and question what useis intended of that information, and should that intended use outweigh the protection that is being afforded to individuals who still havethe benefit of the Common Law Peace Bond, and in particular V.A. and U.C. [29] Mr.

Poole provided submissions to the court in support of his application. In response to direct questions put to him by thecourt, he admits that he had entered a plea of guilty with respect to Count 7 of the Information. He indicated that he had spoken to andreceived independent legal advice prior to doing so.

He indicated that he had not appealed either the imposition of the Common LawPeace Bond or the sentence imposed upon him for criminal harassment. [30] He asserts in his submissions that he was not given copies of the statements that were made by the two individuals that formedpart of the Crown disclosure, namely V.A. and U.C.

He also indicates that he was not aware of all of the circumstances that were beingalleged by the Crown that gave rise to the numerous charges that he faced on the Information. [31] When I asked him specifically why at this point he felt it important to receive that disclosure, he indicates as follows: first, thatthe disclosure of that documentation would prevent what he referred to by way of analogy, as "any future accidents".

By that, I take himto mean that it would assist in preventing him from any further allegations or behaviour that would give rise to allegations of either thebreach of the Common Law Peace Bond or further charges for criminal harassment. [32] The second position he asserts is that the information should be disclosed because he is of the view that Crown and he wereworking from what he describes as different "event models". In other words, he asserts that Crown was mistaken about thecircumstances that were relied upon in order to deal with the charges that were laid against Mr.

Poole and which also came before thecourt. [33] It is my understanding from his submissions that what Mr. Poole really is seeking to do is to clear up the record, both in termsof what occurred that gave rise to the charges and the plea of guilty that he made and/or for the Crown to have a clear understanding thatwhat was provided to them by way of various statements and other evidence was in fact not the complete or the correct story. [34] In his submissions, Mr.

Poole also indicates that he did undertake counselling as required by the terms of his Probation Orderand that it was in the course of that counselling that the discussions arose between himself, his probation officer and, as I understand it,his counsellor about certain things that were being asserted about his offending behaviour with which he now takes issue. [35] The issue that I must decide is whether or not at this point the advantages to ordering disclosure of the information sought byMr.

Poole is outweighed by the protection that should be provided to the various individuals, including V.A. and U.C., or whether or notthe intended use of the information as stated by Mr. Poole should trump the safety and privacy concerns of those individuals. [36] No case authorities have been referred to the court. I had a very brief opportunity to look at some case law. In the very limitedtime available to me, I was unable to find a decision where after the completion of a trial, in the absence of an appeal or other than prior

to the rendering of a decision, that disclosure or further disclosure had been ordered. In particular, I have been unable to find a casewhere further disclosure was ordered following either a conviction or a plea of guilty with respect to any particular offences, again in theabsence of an appeal. [37] The decision of R. v. Papageorgiou, (ON CA), [2003] O.J. No. 2282, a decision of the Ontario Court ofAppeal, is instructive in this matter. At paragraph 8 of that decision, the Ontario Court of Appeal states as follows: [8] The Crown's disclosure obligations in a criminal case are well-established.

The Crown has a legal duty to disclose all relevantinformation to the defence. That duty, however, is not absolute. The Crown retains a discretion concerning the withholding ofinformation and the timing and manner of disclosure, and regarding the relevance of information.

The Crown's discretion in thatconnection is reviewable by the trial judge, who must be guided by the controlling principle that, unless non-disclosure is justified by thelaw of privilege, information should not be withheld from the defence if there is a reasonable possibility that the withholding will impairthe right of an accused to make full answer and defence: R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326 at paras. 11 and19-21, per Sopinka J. [9] In this case, the Crown did not fail to make disclosure of the videotape prior to trial. It did so prior to the discharge by therespondent of his trial counsel.

The evidence established that the respondent reviewed the videotape, together with his counsel. Accordingly, as the Crown properly submits, the issue here is not one of non-disclosure but, rather, the adequacy of the form of furtherdisclosure proposed by the Crown. [10] The Crown submits that in sensitive cases involving allegations of sexual abuse and a self-represented accused, as in this case,the Crown's disclosure obligations are satisfied, and the public interest is fostered, by providing the self-represented accused with anopportunity to view the videotaped statement of a complainant at the Crown's office.

On the facts of this case, we agree with the Crownfor the following reasons. [11] The Crown relies upon the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and ResolutionDiscussions (1993), in which the Crown's disclosure obligations to an unrepresented accused are addressed. In that Report, the AdvisoryCommittee recommends at p. 217: 9. (

a) Defence counsel should not leave disclosure material in the unsupervised possession of an accused person. (

b) An unrepresented accused is entitled to the same disclosure as the represented accused. However, if there are reasonable grounds forconcern that leaving disclosure material with the unrepresented accused would jeopardize the safety, security, privacy interests, or resultin the harassment of any person, Crown counsel may provide disclosure by means of controlled and supervised, yet adequate and private,access to the disclosure materials. Incarcerated, unrepresented accused persons are entitled to adequate and private access to disclosurematerials under the control and supervision of custodial authorities.

Crown counsel shall inform the unrepresented accused, in writing,of the appropriate uses and limits upon the use of the disclosure materials. [12] In its commentary to those recommendations, the Advisory Committee states at pp. 218-19: It is a basic principle, of course, that the unrepresented accused, like the accused who is represented, is entitled to full disclosure. There is, however, one obvious difference between the represented and the unrepresented accused that has a direct and practical bearingon disclosure.

Where an accused is unrepresented, there is no officer of the Court, acting for the defence, who can ensure that thedisclosure material is used only to prepare to answer the charge, and not for some other improper purpose. ... Ultimately, defence counsel, as an officer of the Court, is expected to act responsibly. An unrepresented accused, however, is notrequired to comply with professional standards.

Providing full disclosure to an unrepresented accused, when there is a reasonable basisfor concern as outlined in paragraph 9(b), may, therefore, in the Committee's view, be accomplished in a somewhat different manner.

The Committee has recommended that, where there is a reasonable basis for concern that leaving disclosure materials with theunrepresented accused would jeopardize the safety, security, privacy interests, or result in the harassment of any person, Crown counselshould take such reasonable steps as are necessary to prevent these harms, by providing private access to disclosure materials (or copiesthereof) in controlled conditions. ...

Where there is a reasonable basis for concern, which leads to disclosure being made in a supervised setting as provided for in paragraph9(b), the accused must none the less be provided with full disclosure. Further, the Committee wishes to emphasize that the supervisionrequired in these circumstances cannot impair the right of the accused to prepare, in a reasonable manner, to meet the charge(

s) he or sheis facing. ... [38] At paragraph 14 of that decision, the Court of Appeal adopted and approved the disclosure recommendations of the AdvisoryCommittee, and indicated that they properly recognized and underscored the harmful consequences that can flow from the improper useof disclosure materials and the importance of preventing what the Committee had described at page 218 of its report as the risk of "graveinterference with the administration of justice." [39] Paragraph 14 goes on to highlight that the risk of harm from the improper use of disclosure materials is particularly pronouncedin cases involving sexual abuse.

The report of the Advisory Committee also is viewed in the context of cases that reflect the importantpublic policy concerning sensitive materials, including statements made by complainants that should not be exposed to misuse byunrepresented litigants or during or after pending criminal proceedings. [40] For that reason, the Court of Appeal highlighted the Committee's endorsement of the safeguards that must be imposed uponsuch things, including videotaped witness statements and private access to other disclosure materials. [41] In the matter before me, I have concluded that disclosure of the information being sought by Mr.

Poole is not appropriate and is

subject to potential misuse. It places the two individuals, V.A. and U.C., at risk. There is no useful reason that this information should now be disclosed, having been appropriately disclosed to Mr. Poole's lawyer at the time that these matters were being dealt with over two years ago. [ 42 ] The information that was provided by Crown appears to be full and complete, and permitted Mr. Poole and his legal counsel to address the charges that Mr. Poole faced. The fact that Mr. Poole entered a voluntary plea of guilty to this matter is, in the absence of other evidence, an admission of the essential elements of the offence. [ 43 ]

Section 606 of the Criminal Code provides as follows:

(1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused (

a) is making the plea voluntarily; and (

b) understands (

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor.

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea. [ 44 ] In this case, I do not have sufficient material before me to conclude that Mr. Poole entered anything other than a voluntary plea on this matter. He does indicate that he did not have a full understanding about the circumstances that were being alleged.

He also asserts that part of his motivation for entering that plea of guilty was because of injuries he had sustained while he was incarcerated following his detention on the bail hearing. [ 45 ] However, it is noteworthy that since his release and during the period of time that he was bound by his Probation Order, he took no steps in order to appeal the disposition of the matter that was before the sentencing judge. He asserts that there were financial circumstances which prevented him from doing so.

However, he also indicates that he did not make a formal legal aid application in order to raise the matter with Legal Aid and to have an adjudication as to whether or not he qualified for legal aid. [ 46 ] Having regard to all of the above, I am of the view that there is no basis for the application brought by Mr. Poole.

The Crown's position is a reasonable one, namely given the continuation of the Common Law Peace Bond, that the individuals protected by that Peace Bond deserve not only the protection afforded to them by the Peace Bond, but also the protection of information that had previously been disclosed by them to both police and to the Crown. In my view there is no benefit to them, nor to the community nor to Mr. Poole for that information to now be re-disclosed from Crown sources or from materials under their control. [ 47 ] Accordingly, the application of Mr. Poole is dismissed. [ 48 ] MS.

MASCOLO: Thank you, Your Honour. [ 49 ] Mr. Poole did write me a note during Your Honour's reasons. He was concerned Your Honour mentioned his first letter to the Crown was November 3rd. In fact, it was October 27th. [ 50 ] THE COURT: All right. Well, I will accept the -- I will accept that as a correction to the information that is before me. [ 51 ] MS. MASCOLO: Thank you, Your Honour. (RULING CONCLUDED)