R. v. McGirr Date:, 2012 BCPC 120

Citation: R. v. McGirr Date: 20120410 2012 BCPC 0120 File No: 85271-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM JONATHAN McGIRR ORAL RULING OF THE HONOURABLE JUDGE B.A. DYER Counsel for the Crown: L. Berman Counsel for the Defendant: D. Greenbank Place of Hearing: Port Coquitlam , B.C. Date of Hearing: April 10, 2012 Date of Judgment: April 10, 2012

[1] THE COURT: These are my reasons with respect to the application brought by Mr. Greenbank. [2] The accused is charged with impaired driving and refusal to provide breath samples in response to a demand. Both chargesarise as a result of his conduct on June 19th, 2010. These matters were set for trial before me on April 11th and 12th, 2012, however,that trial may now be held in front of a different judge. [3] Prior to the trial and in March of 2012, defence counsel applied for further disclosure of materials that related to an incidentinvolving Mr.

McGirr and the Coquitlam RCMP which occurred on February 8th, 2010 in the course of an unrelated police investigationthat evening. [4] The order sought by Mr.

Greenbank is as follows: That disclosure and production be made of copies of all audio and video recordings of conversations between the applicant WilliamMcGirr and members of the Royal Canadian Mounted Police on the 8th day of February, 2010 in the booking area of the CoquitlamDetachment of the Royal Canadian Mounted Police. [5] On March 28th I made this order requiring the RCMP to forthwith provide these materials to Crown counsel stating that myreasons would follow. These of course are my reasons for so doing. [6] The incident on February 8th is described in paras. 2 to 7 of an affidavit sworn by Mr.

McGirr on or about February 24th,2012 (I note that jurat was not fully completed) as follows: 2. On February 8th, 2010 at about 5:30 a.m. I was asleep in my home located at 1285 Flynn Crescent, Coquitlam, B.C. when I wasawakened by the arrival of a number of RCMP members. When I opened the door I was pulled outside by the police and put on theground. At the same time, a friend of mine who was sleeping on the couch was also dragged outside and forced to the ground. A gunwas held to my head as I was on the ground. 3.

The police told me that there had been a report of a break and enter at my home and they arrested me and took me to theCoquitlam Detachment and placed me in a cell. At the time that I was arrested I told the police that I had in my possession keys to thehouse as it was my home. One of my neighbours came outside and told the police that I lived in the home, but she was ignored. 4. A number of the police were going through my home without my consent and without a search warrant.

In the home there was anumber of different documents with my name and the address of my home on them, personal pictures of me, and my car was in thegarage of the house. Notwithstanding this, I was arrested. 5. I was held in custody without an opportunity to contact a lawyer until sometime between 9:30 and 10:30 a.m. at which time I wasreleased. 6. One of the RCMP members who was present during the search of my home had a surname which I believe to be "Monsef" orsomething similar to that. He appeared to be the person in charge of the police who had come to my residence that morning. 7.

When I was being released from custody, Monsef was present in the booking area. During the process of my release, Monsef toldme to "Get the fuck out of Coquitlam" and threatened me with physical harm. He told me that he would be watching me. [7] Mr.

McGirr, through counsel, earlier sought disclosure of the materials referred to in the proposed order and was given onlyan edited video recording of the process of his being booked and later of his being released but no audio recording of what was beingsaid, either by him or any RCMP officer who dealt with him on February 8th, 2012 or on his release at or about 9:30 to 10:30 a.m. [8] The reason he has been given is that an unnamed RCMP supervisor at the Coquitlam Detachment said it was not to beprovided, nothing more. [9] I do not know if the video recordings the accused has now received are complete or edited. [10] Mr.

Greenbank, counsel for Mr. McGirr, seeks to obtain the materials referred to in the draft order as they may support adefence to be offered at the trial referred to above on Count 2, the demand refusal charge, namely, that the accused had a reasonableexcuse for not complying based on his ill treatment, I suppose, by the RCMP on an earlier occasion and his belief that they would nottreat him fairly in the breathalyzer process. [11] Mr. Greenbank readily admits that the officer who dealt with Mr.

McGirr on June 19th, 2010 was not the same RCMP officerreferred to in his client's affidavit who is alleged to have dealt with Mr. McGirr unprofessionally on February 8th, 2010, some four-and-a-half months later. [12] Mr. Greenbank says the test this Court should apply in deciding whether or not to order disclosure and production is set out inthe well-known leading case of R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326 at paras. 22 and 29 as follows: [22] The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is areasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unlessthe non-disclosure is justified by the law of privilege.

The trial judge might also, in certain circumstances, conclude that the recognitionof an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus requiredisclosure in spite of the law of privilege. The trial judge may also review the decision of the Crown to withhold or delay production ofinformation by reason of concern for the security or safety of witnesses or persons who have supplied information to the investigation.

In such circumstances, while much leeway must be accorded to the exercise of the discretion of the counsel for the Crown with respect to

the manner and timing of the disclosure, the absolute withholding of information which is relevant to the defence can only be justified onthe basis of the existence of a legal privilege which excludes the information from disclosure. . . . [29] With respect to what should be disclosed, the general principle to which I have referred is that all relevant information must bedisclosed subject to the reviewable discretion of the Crown. The material must include not only that which the Crown intends tointroduce into evidence but also that which it does not.

No distinction should be made between inculpatory and exculpatory evidence. The attempt to make this distinction in connection with the confession rule proved to be unworkable and was eventually discarded by thisCourt. See Piché v. The Queen, (SCC), [1971] S.C.R. 23, at p. 36; Rothman v. The Queen, (SCC),[1981] 1 S.C.R. 640, at p. 645. To re-introduce the distinction here would lead to interminable controversy at trial that should beavoided. The Crown must, therefore, disclose relevant material whether it is inculpatory or exculpatory. [13] Mr.

Greenbank argues that if not ordered produced, there is a reasonable possibility that his client's right to make full answerand defence to Count 2 on the Information would be impaired. There is no issue of privilege that arises in this case. He asserts he has aright to look at the information sought and if, as counsel, he concludes it does not support a potential defence, then that will be the end ofthe matter. He has provided the Court with some fives cases in support of his application as follows: 1. R. v. D.E.B., 2006 BCPC 342 2. R. v. Drda, [1990] B.C.J. No. 2813 (B.C.S.C.) 3. R. v.

Burkitt (1972), 6 W.W.R. 251 (Man. Co. Ct.) 4. R. v. Cherry, [1979] A.J. No. 688 (Alta. Prov. Ct.) 5. R. v. Dawson, (NL CA), [1996] N.J. No. 104 (Nfld. C.A.) [14] I have reviewed these cases. Generally, they deal with situations where an accused has refused to provide a breath samplefollowing a demand in the course of an impaired driving investigation where he had been ill treated by the investigating police officer. For example, in R. v. Drda, supra, the police officer applied a chokehold on the accused rendering him unconscious and unable toprovide a proper breath sample.

The circumstances including the police officer's conduct at the scene constituted a reasonable excusefor the driver's refusal to provide a breath sample. [15] None of these five cases deal with the situation in the case at bar where an accused may seek to assert prior police misconductfrom a different officer as a reasonable excuse for a refusal to provide a sample, save two. In Cherry, supra, there is some reference toprior police racial profiling.

In Dawson, supra, especially, prior police conduct was in issue. [16] Crown counsel argues that the evidence sought to be produced is simply not relevant and if not ordered disclosed, there is noreasonable possibility that Mr. McGirr's right to make full answer and defence would be impaired. The proposed defence could not, onthe authorities, possibly be successful at trial. [17] In my view, this is not the issue I am to decide on this application. I accept Mr. Greenbank's submission that he has not andneed not fully set out his client's defence at trial in his above affidavit.

DISCUSSION [18] There are certain well-established principles that can be derived from the leading authorities on the Crown's duty to makedisclosure to the accused as follows: 1. The Crown must make full disclosure of all relevant materials, whether inculpatory or exculpatory, to the defence and whether ornot it intends to use them at trial. This is said to be the cornerstone of the notion of fundamental justice. 2. This full disclosure obligation continues throughout the trial. 3. The duty is not absolute. The materials must be relevant, within Crown's possession and not privileged.

I note, Crown does notsuggest the materials sought are either privileged or not within its corporate possession. Likewise, I would add there is no suggestionmade in this application that it would be difficult, time consuming or costly to obtain the materials. They are readily available in myunderstanding. 4. In determining whether to disclose or not, Crown should, in the exercise of its discretion, err on the side of disclosure but neednot produce what is clearly irrelevant (see para. 20 of R. v. Stinchcombe, supra). 5.

If Crown, as here, refuses disclosure and the Court reviews its exercise of discretion, the onus is on the Crown to justify to theCourt that the information sought is clearly irrelevant (see R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727 at para. 25). 6. The Crown must justify non-disclosure (see R. v. Bottineau, (ON SC), [2005] O.J. No. 4034 at para. 45). 7. An aspect of relevance is the usefulness of the information to the defence.

The information is relevant if, for example, it canreasonably be used by an accused in establishing a defence or in making a decision as to the manner in which his defence is conducted,for example, whether or not to call evidence (see R. v. Egger, (SCC), [1993] 2 S.C.R. 451 at para. 20). 8. The threshold for relevance is set quite low. Relevance is to be regarded liberally and will include materials that have areasonable possibility of assisting the accused (see R. v. Duguay, [2003] S.C.R. 307 and R. v. McNeil, 2009 SCC 3 at para. 44).

9. In assessing relevance, regard must be had to the particular issues in the case and to governing rules of evidence and procedure (see R. v. McNeil , supra ). 10. There is authority that even inadmissible materials, if relevant, should be disclosed if it may for example influence cross- examination or other aspects of the defence (see R. v. McNeil , supra ). 11.

It is also relevant for the Court to consider, on an application such as this, whether the materials sought is voluminous and would take a great deal of time and expense to amass and produce, and if produced might unduly prolong a criminal trial or add unduly to the complexity of the case. 12. Safety or security of a witness, here not a factor, might allow Crown to delay disclosure where privilege is a non issue but not to refuse to make it if the information is otherwise relevant. [ 19 ] Not all of these principles have application to the matter before me. I am of the view that the materials sought by Mr.

Greenbank meet the above tests, especially at paras. 22 and 29 of R. v. Stinchcombe , supra . [ 20 ] There is no undue hardship in making the order sought either to the RCMP or the Crown. It will not be an onerous task for the RCMP to forthwith convey the information sought to Crown counsel. The fact that no cases exist -- at least not pursuant to Mr.

Greenbank's research that are directly on point -- is not, in my view, a reason not to order the disclosure sought. [ 21 ] By ordering production, I am not making any finding that the evidence will at trial with certainty be found to be relevant and admissible and if admissible will be given any significant weight by the trial judge. These matters all await the trial itself. Much may depend on whether or not the defence elects to call any evidence thereat and if so what that is.

I note the obvious, that the law would never advance -- and I think this is particularly apposite with respect to the common law -- if some judge did not decide a case without following a previous precedent, binding or not. [ 22 ] I am satisfied that the order sought should be made. Crown has failed to show on any basis, including on the balance of probabilities, that the material in issue is not relevant so as to justify non-disclosure. [ORAL REASONS FOR JUDGMENT CONCLUDED]