R. v. McLean, 2018 BCPC 95

Citation: R. v. McLean 2018 BCPC 95 Date: 20180409 File No: 85549-C-2 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STEVEN ANDREW MCLEAN RULING ON APPLICATION RE: O’CONNOR APPLICATION FOR PRODUCTION OF RCMP RECORDS OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE E. BURDETT Counsel for the Crown: P. O'Neil Counsel for the Defendant: V. Michaels Counsel for the Attorney General of Canada : J. Katz Place of Hearing: Kelowna , B.C. Date of Hearing: April 5, 2018 Date of Judgment: April 9, 2018 [ 1 ] These are my reasons concerning an application brought by the accused for the production and disclosure of police disciplinary records.

[ 2 ] I am the trial judge assigned to hear this trial, however the trial itself has not commenced, and I have heard no viva voce evidence. The only evidence I have before me is the affidavit sworn by Monique Dhillon, the articled student to Mr.

Michaels, counsel for the defendant. [ 3 ] The factual assertions in that affidavit are not challenged by the Provincial Crown nor by counsel for the Attorney General of Canada, who appeared on behalf of the RCMP. [ 4 ] I will set out those facts here, as they must be kept in mind in my consideration of this application. [ 5 ] Steven McLean, the accused, is charged on Information 85549-C with the following three counts, all occurring on July 14, 2016 in West Kelowna: dangerous driving contrary to section 249(1) (

a) of the Criminal Code , obstructing a peace officer in the execution of his duty, contrary to

section 129 (

a) of the Criminal Code, and failing to bring his vehicle to a stop as soon as was reasonable in the circumstances while being pursued by a police officer, contrary to

section 249.1(1) of the Criminal Code. [ 6 ] The Crown’s case is anticipated to be this: [ 7 ] The RCMP and Cst. G. received information in relation to a specific vehicle and individual, at the Sonic car wash in West Kelowna. With that information in hand, Cst. G. drove to the car wash and made certain observations of the vehicle and an individual. Cst. G. did not approach the driver or the vehicle at that point. [ 8 ] When the suspect vehicle left the car wash, Cst. G. followed it and did so for about 1.7 km. At that point, Cst. G. activated the emergency lights on his police car.

The suspect vehicle continued, without stopping, for about 1 km before coming to a stop at the side of the road. [ 9 ] Cst. G. approached the vehicle on foot from the rear. As he approached the vehicle, the driver accelerated rapidly and left the scene. [ 10 ] Although Cst. G. began to follow the suspect vehicle in his police car, it appears he did not pursue it. Ultimately he lost sight of the suspect vehicle. [ 11 ] Cst. G. observed the vehicle as it left the location where he pulled it over. He made these observations as it accelerated away from him.

He formed the opinion that the car reached a speed of 100 km an hour at a certain location. He observed that the car did not stop at a stop sign and passed other vehicles. [ 12 ] Cst. G. returned to the car wash, which had CCTV surveillance cameras. He looked at the footage and took two photos from the footage. He did not request or obtain the video footage itself. [ 13 ] About 40 minutes later Cst. G. went to a residence associated to the accused’s former spouse. The suspect vehicle was in the driveway and was occupied by the accused. Cst. G. arrested the accused. [ 14 ] Cst.

G. will be the only witness for the Crown. [ 15 ] The defence submits that the central and critical issue at trial will be the nature of the driving Cst. G. observed as the car left the location where he stopped it. The defence contends that Cst. G.’s observations at this point, as he described them in his Report to Crown Counsel, are either not truthful, or at the very best, made with reckless indifference to the truth. Hence, the defence says that the credibility, honesty and reliability of Cst. G. are squarely in issue. [ 16 ] On November 9, 2017, Crown disclosed to defence that Cst.

G. had a disciplinary record that may possibly be relevant to the proceedings. This was the first that the defence had any notice of this, despite the fact that the matter had been previously set for trial on September 27, 2017 with another defence counsel. Ms. Ross, the Crown, offered Mr. Michaels an opportunity to review the disciplinary record. Mr. Michaels responded by requesting “as much information as is possible” in writing. It appears Mr. Michaels received the following information regarding Cst. G.: “Over a period of several months in 2013 Cst.

G. accessed police information for a non-police purpose and passed that information to a third party. In 2014 Cst. G. was disciplined for this.” [ 17 ] On November 27, 2017 the Crown provided Mr. Michaels with this additional information: “…Cst. G. received informal discipline under the RCMP Act in April, 2014, as a result of inappropriately accessing RMCP electronic information systems and detachment file for non-duty related purpose and disclosing information to non-RCMP personnel from an RCMP investigation between January and November 2013.” [ 18 ] When asked for further details about Cst.

G.’s disciplinary record, the Crown took the position that the disciplinary record was not relevant to his credibility or his reliability at the trial of this matter. Further, the Crown indicated that they did not have any additional information other than that which they had already provided. Ms. Ross advised that Mr. Michaels would need to bring an O’Connor application for the production of third party records. [ 19 ] Based on the Crown’s position, Mr. Michaels sought and obtained an adjournment of the December 22, 2017 trial date, and subsequently filed this application. [ 20 ] Mr.

Katz, counsel for the RCMP, has correctly identified the three issues in this application: 1. Whether the records sought are first party records caught by Stinchcombe or third party records subject to the O’Connor regime;

2. If the records sought are determined to be third party, whether the records are “likely relevent’ to a material issue at trial asrequired by O’Connor; and 3. If the records are determined to be “likely relevant” and are ordered produced to the court, whether and to what extentproduction of the records should be ordered. [21] Counsel for the RCMP opposes this application, arguing first that the records are not first party records, and second, that therecords do not meet the test of “likely relevance”. The Crown supports this position. [22] The law in this area is governed by R. v. McNeil 2009 SCC 3.

Counsel provided a number of additional authorities in support oftheir arguments. I have also considered the following in reaching my decision: R. v. Melvin [2009] N.S.J. No. 397; R. v. Lam [2016] A.J.No. 338; R. v. Huynh [2010] B.C.J. No. 1840; R. v. Schmidt [2012] B.C.J. No. 845; R. v. Baker 2017 BCSC 997; R. v. Belcourt 2012BCSC 2149; R. v. Cody 2017 SCC 31; R. v. Elkins 2017 BCSC 2554; R. v. Groves 2011 BCSC 946; R. v. Jackson 2015 ONCA 832; R. v.Jordan 2016 SCC 27; R. v. Koyczan [2017] Y.J. No. 362; R. v. O’Connor (SCC), [1995] S.C.J. No. 98; R. v. Petrovic2013 BCSC 2339; R. v. Pickton 2006 BCSC 2112; R. v.

Quesnelle 2014 SCC 46; R. v. Sipes 2011 BCSC 150; R. v. Tse 2008 BCSC1666; and R. v. Vader [2016] A.J. No. 477. ISSUE ONE Is the disciplinary disclosure sought by the defence a first party record? [23] R. v. Stinchcombe (SCC), [1991] 3 SCR 326 established that the Crown has a positive and continuingobligation to disclose all records in its possession that constitute the fruits of the investigation, except those records which are privilegedor clearly irrelevant.

Relevance is broadly defined and materials which may have only marginal value to the ultimate issue at trial shouldstill be disclosed unless they are clearly irrelevant.

This disclosure assists the accused in making full answer and defence. [24] McNeil established that police disciplinary records are capable of being either first party or third party disclosure: “Records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fallwithin the scope of the “first party” disclosure package due to the Crown, where police misconduct is either related to the investigation,or the finding of misconduct could reasonably impact on the case against the accused.

The Crown, in turn, must provide disclosure to theaccused in accordance with its obligations under Stinchcombe.

Production of disciplinary records in criminal investigation files in thepossession of the police that do not fall within the scope of this first party disclosure package is governed by the O’Connor regime forthird party production. (para. 15)” [25] Charron J. recognized that where police disciplinary records were concerned, there was a gap between first party records andthird party records and determined that the Crown, as a minister of justice, had a dual role as an advocate and an officer of the court.

Once Crown counsel has notice of the existence of relevant information, they cannot simply disregard the matter, unless the notice isclearly unfounded. The Crown has an obligation to inquire further and obtain additional information in order to fully assess the merits ofthe case, if it is reasonably feasible to do so.

Justice Charron went on to comment at paragraph 49: “this same duty to inquire applies when the Crown is informed of potentially relevant information pertaining to the credibility orreliability of the witness in a case.” [26] There is a reciprocal duty on the police to provide the Crown all material information relating to an investigation, includingfindings of serious misconduct of police officers either related to the investigation, or findings of misconduct that could reasonablyimpact on the case against the accused. [27] In Jackson, (supra) Watt JA provided a useful discussion on the meaning of relevant and revelance.

Regarding first partydisclosure of “obviously relevant” material, he had this to say: “The McNeil court uses the term “obviously relevant” to describe information that would not fall within the compass of “fruits of theinvestigator”, but would be of importance to the defence case. In McNeil, this information was police disciplinary records in thepossession of a third party, the police department.

Since it was “obviously relevant” to the credibility of the arresting officer and thereliability of his evidence, which was central to the prosecutor’s case, McNeil imposed an obligation on the police to obtain those recordsand provide them to the prosecuting Crown. It imposed a correlative duty on the Crown to disclose them to the defence as part of theCrown’s Stinchcombe disclosure duty. It is difficult to tease out of the phrase “obviously relevant” a new standard or degree of relevance.

A better fit would seem to be that thephrase represents a comment on the obvious nature of the relevance of the record in the case of the witness’ credibility.” [28] Melvin (supra), Lam (supra), Huynh (supra), and Schmidt (supra) are cases which involve requests for the disclosure of policedisciplinary records, all of which considered the McNeil principles. [29] In Melvin, (supra) Coady J. dealt with a request for disciplinary records for a police officer. The Crown had disclosed thedisciplinary allegation, the decision and the penalty.

It related to an internal disciplinary proceeding, and it was clear that the offendingbehaviour did not arise from the investigation of the case at bar. The Crown and the Intervenors (Regional Police and the officerinvolved) took the position that the disclosure provided was sufficient because the investigating officer’s disciplinary matter wasunrelated to the accused; rather it concerned the officer opening a clandestine bank account. They argued it was not “seriousmisconduct”, hence the disciplinary records were not part of the Stinchcombe regime and could only be disclosed after an O’Connorapplication.

Coady J. commented that what might constitute “minor misconduct” for police disciplinary purposes could easily have asignificant impact during a criminal trial. At paragraph 58 he stated: “With the greatest of respect, I disagree with these submissions. There can be circumstances where a disciplinary infraction is a minor

career transgression requiring little by way of consequences, but yet it may have a significant credibility impact in a criminal trial. Obviously the record will have greater impact on cross examination if it discloses even minor elements of deceit, lack of forthrightness, or dishonesty. While I recognize Cst. A. was not convicted or sanctioned for deceit or corrupt practices, his actions as displayed in the Form 12 and

summary amount to more than a minor transgression. The opening of the bank account by Det. Cst. A. raises questions of 1. Truthfulness to the bank; 2. Deceitfulness to his spouse; 3. Exploitation of position of advantage; 4. Fabrication of documents; 5. Misrepresentation In other words, these actions impact on his credibility. This amounts to more than an “employment matter”. This is the kind of activity envisaged by McNeil .” [ 30 ] Coady J. found that the records were first party records.

He held that the officer’s credibility was a live issue at trial, and that there was a reasonable possibility that additional information in the disciplinary file may assist the accused in their right to make full answer and defence. He ordered that the Crown request the records from the police, the Crown review the file applying conventional Stinchcombe principles, and disclose relevant materials to the defence. The Crown was also to advise the accused of any records withheld and the reason for that decision. [ 31 ] In R. v.

Lam , (supra) Pentelechuck J. made a similar finding regarding disciplinary records sought by defence. The accused was charged with trafficking offences. One constable was the affiant in support of warrants, and the other was involved in the accused’s arrest. A third officer, a detective, was the exhibit person for the seizures made during the arrest. The detective was charged in an unrelated matter with three counts of trafficking in steroids. Both the constables bought steroids from the detective in the fall of 2012.

Both officers were found guilty of deceit for initially having denied using steroids in that time frame and denied having knowledge of the detective’s trafficking. The accused was arrested in February 2013. The disciplinary decisions were disclosed, which contained detailed findings, including a

summary of agreed facts. Further there was an agreement to disclose transcripts of interviews with the constables which formed the basis for the agreed facts. Pentelechuck J. found that all of these materials were part of the Crown’s first party disclosure obligations to the extent that they could reasonably impact on the case against the accused. [ 32 ] Although Huynh (supra) dealt with an adjournment application, Wedge J. discussed disclosure of disciplinary files and the Crown’s obligations. The case involved charges of production of marijuana and possession for the purpose of trafficking.

During the trial the Crown became aware that one of the officers involved in the case was the subject of disciplinary proceedings and that findings had been made against him with respect to abuse of authority and discreditable conduct. Defence counsel conceded that those matters were irrelevant to the trial, however, they learned that the constable was currently facing other allegations of misconduct under the Police Act and sought an adjournment to await the outcome of those allegations, arguing they may have a bearing on the officer’s credibility.

Wedge J. noted that McNeil expressly contemplated the use of allegations of misconduct to impeach the credibility of a witness, and concluded that as the defence had fulsome disclosure of the allegations, no adjournment was necessary: “By disclosing in significant detail the alleged misconduct of Constable Bruce and pending disciplinary hearing into those allegations, the Crown has satisfied its disclosure obligations under McNeil .” [ 33 ] Wedge J. discussed at paragraphs 9 and 10 the extensive disclosure the Crown made to defence regarding the outstanding disciplinary matters which concerned behaviour, two years after the charges against the accused were laid. [ 34 ] In Schmidt, (supra) the officer participated in an undercover operation against an accused charged with trafficking cocaine and was the only Crown witness who could identify the accused.

Disclosure of the officer’s disciplinary history was sought. The Crown advised defence that the officer had a disciplinary history as he had been informally disciplined, but asserted that the history was clearly irrelevant. The Crown advised that she had acquired the details of the disciplinary history and was satisfied that it did not fall within the ambit of McNeil and it would not be disclosed.

Further inquiries only yielded the date of the incident and the date of the informal discipline. [ 35 ] The information provided was so scant Woods PCJ could not even describe the application as a McNeil application - rather he characterized it as a preliminary application to assist counsel to determine if it would be appropriate to bring a McNeil application. [ 36 ] The Court found that the police fulfilled their obligation in forwarding the “bare bones” disciplinary record to the Crown, who thereafter had fulfilled their obligation to seek further information once it was clear the officer had been subject to disciplinary actions.

However, the Court commented on the Crown’s submission that one could take comfort in their determination of the irrelevance of the disciplinary record because the officer only faced an informal disciplinary action with the RCMP. He said this at paragraph 38: “…I do note a wide spectrum of wrongdoing, including serious wrongdoing, is reflected in the Code of Conduct offences that can be addressed via the Informal Disciplinary Action procedures under the Act .” [ 37 ] The Court listed the types of offences that can be dealt with under the Informal Disciplinary Action procedure and they include

such matters as destroying, altering or concealing correspondence; misapplying or keeping any property or money that comes into a member’s possession during the course of their duties; knowingly or wilfully making a false or misleading statement pertaining to the performance of their duties, any investigation, conduct of another member or the administration of justice; breaching one’s oath; using controlled substances; accepting a special privilege in the course of their duties or participating in political activities that compromise an ongoing criminal investigation.

I note many of these infractions potentially include dishonesty and deceit. [ 38 ] Ultimately Woods PCJ found that the Crown had not gone far enough in providing sufficient details regarding the general nature of the officer’s disciplinary matters to enable defence counsel to make an informed decision about pursuing a McNeil application. [ 39 ] I accept that Cst. G.’s credibility is a central issue in this trial. He is the only Crown witness. His evidence is not peripheral nor is it corroborated by any other witnesses. Is his disciplinary record relevant to his credibility?

I note that, like the officer in Schmidt , (supra) he was subject to an informal disciplinary proceeding. Those proceedings can deal with infractions where deceit and dishonesty are present. Without further information, it is not possible to conclude Cst. G.’s actions were not dishonest or deceitful. It appears on the face of it that his actions breached RCMP policy and protocols and he may have abused his position of authority with the RCMP. He may have derived an advantage from his actions. It is clear his actions took place over a number of months.

Without further information, it is not possible to determine his motives, whether he gained financially from his conduct, or assess the types of individuals to whom he disclosed police information. [ 40 ] As noted in McNeil , relevant evidence includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.

As Watt J. stated in Jackson (supra) at paragraph 116: “In first party/ Stinchcombe disclosure, “relevant” is characteristic of the material to be provided to an accused as “fruits of the investigation”. In addition, although it may not fall fairly within the ordinary sweep of “fruits of the investigation” material that is “obviously relevant” to the defence case may need to be rustled up by the police, provided to the Crown and disclosed to defence. Like the discipline records in McNeil . See McNeil at para 59 .” [ 41 ] I find that the disciplinary records of Cst. G. are obviously relevant to his credibility.

His reliability is central to the Crown’s case. [ 42 ] I am satisfied that there is a reasonable possibility that additional information in Cst. G.’s disciplinary file will assist the accused to make full answer and defence.

These records fall in the category of first party disclosure. [ 43 ] There may be information in those records that do not meet the “reasonable possibility” test and can be protected without compromising the accused’s ability to make full answer and defence, although McNeil acknowledges that some residual privacy concerns will have to give way to the accused’s rights. [ 44 ] As Coady J. stated in Melvin (supra) , the balance between the officer’s privacy interests and the accused right to make full answer and defence should be made in a way that is very sensitive to the accused’s ability to respond to the charges.

Coady J. cited the Supreme Court of Canada decision in R. v. Eggar : “One measure of the relevance of information in the Crown’s hands is its usefulness to the defence. If it is of some use, it is relevant and should be disclosed.” [ 45 ] Coady J. commented that first party disclosure must be exercised in this spirit and closer calls should fall on the side of disclosure. ORDER [ 46 ] Within seven days, Crown counsel is directed to request and obtain Cst. G.’s disciplinary file from the RCMP. [ 47 ] Crown counsel is to disclose to Mr. Michaels all non-privileged information that is not clearly irrelevant.

That disclosure must occur on or before May 1, 2018. [ 48 ] Information that is not disclosed to defence counsel must be sufficiently identified to allow defence counsel to make an informed decision as to whether he wishes to challenge Crown counsel’s refusal to produce. [ 49 ] The disclosure is to be provided to Mr. Michaels in a sealed package. Mr.

Michaels is placed under an undertaking not to make copies of the documents provided to him, to retain the documents in his possession and not to disclose the documents to anyone except as is necessary to defend the accused. [ 50 ] The parties have leave to address any issues regarding further disclosure under O’Connor if it is necessary. _____________________________ The Honourable E. Burdett Regional Administrative Judge