R. v. Wong Date:, 2016 BCPC 189

Citation: R. v. Wong Date: 20160524 2016 BCPC 189 File No: AH 0084847767 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Traffic Court) REGINA v. YUN TO WONG ORAL REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE B. ADAIR Appearing for the Crown: Cst. Hirst Counsel for the Defendant: M. Galambos Place of Hearing: Vancouver , B.C. Date of Hearing: May 10, 2016 Date of Judgment: May 24, 2016

[1] The defendant was charged with speeding under Section 146(1) of the Motor Vehicle Act, a very routine charge in TrafficCourt. [2] Defence Counsel had previously requested disclosure and had received some materials. In the midst of cross-examining theofficer Defence Counsel asked for further disclosure, including access to the User’s Manual for the Laser device, and materials from theofficer’s training at the Police Academy several years ago. [3] To assist both parties in addressing that request, I outlined my understanding of the Crown’s disclosure obligations in TrafficCourt.

I stated I would provide written reasons subsequently; these are those reasons. The Nature of Disclosure in Traffic Court [4] The disclosure obligations for the Crown are different in Traffic Court than they are in indictable criminal matters. [5] In R. v. Sault Ste. Marie (SCC), [1978] 2 SCR 1299, Mr.

Justice Dickson noted that traffic charges are publicwelfare offences and: “Although enforced as penal laws through the utilization of the machinery of the Criminal Law, the offences are in substance of a civilnature and might well be regarded as a branch of administrative law to which the traditional principles of criminal law have but limitedapplication.” [6] In R. v.

Stinchcombe, (SCC), 1991 3SCR 326, Justice Sopinka specifically recognized that differentconsiderations might apply when dealing with less serious offences and that courts would have to give direction as to “where to draw theline” on the extent of the disclosure duty in such instances. He stated, at paragraph 26: “The general principles referred to herein arise in the context of indictable offences. While it may be argued that the duty of disclosureextends to all offences, many of the factors which I have canvassed may not apply at all or may apply with less impact on

summaryconviction offences. Moreover, the content of the right to make full answer and defence entrenched in s.7 of the Charter may be of amore limited nature. A decision as to the extent to which the general principles of disclosure extend to

summary conviction offencesshould be left to a case in which the issue arises. In view of the number and variety of statutes which create such offences, considerationwould have to be given as to where to draw the line.” [7] Provincial Court Judge Gouge, in R. v. McCartie, 2013 BCPC 150 (following the logic in R. v.

Collins, 2010 ABPC 19 - a caseabout a speeding ticket in Alberta) stated at paragraph 7: “…I think it well established that the principle of proportionality, now in vogue in civil proceedings, applies to limit the scope ofStinchcombe disclosure according to the circumstances of each individual prosecution.” [8] The Ontario Court of Appeal, in R. v. Jackson, 2015 ONCA 832, dealt with what it described as a “routine” alcohol drivingcharge.

Even in that context of a true criminal charge, the Court noted, at paragraph 139: “It is critical for the efficient operation of the trial courts, especially those in which alcohol-driving offences occupy a prominent place onthe docket, that they be able to control their process. This includes the authority to discourage unmeritorious third party recordsapplications that devour limited resources. A principled approach to the issue, akin to that enacted in the current s. 278.3 (4) of theCriminal Code, may be of some assistance to trial judges confronted with applications such as the present.” [9]

Section 278.3 (4) provides: “Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevantto an issue at trial or to the competence of a witness to testify:

a) That the record exists,

b) That the record relates to medical or psychiatric treatment…

c) That the record relates to the incident that is the subject matter of the proceedings,

d) That the record may disclose a prior inconsistent statement…

e) That the record may relate to the credibility of the complainant or witness, f) - k), etc.”

[10] Those comments of the Ontario Court of Appeal would apply with even greater force to Traffic Court, where 60 - 70 cases areroutinely scheduled for each court day, and where the consequences of conviction are less serious than for a

summary convictionoffence. [11] In my view, the current law on disclosure in Traffic Court may be summarized as follows:

a) Despite the restrictions imposed on Judicial Justices by the Provincial Court Act, to avoid rendering any decisions pursuant to theCharter, Judicial Justices still have full jurisdiction to order disclosure. This is pursuant to the common law. See paragraph 39 of R. v.LA (SCC), [1997] SCJ No. 30, where Justice Sopinka, for the majority, notes: “Stinchcombe did not create a new right with respect to disclosure as the common law has always considered full disclosure to be anintegral part of the process.” The common law right of disclosure is a mirror image of the rights outlined in cases decided pursuant to the Charter.

b) Disclosure obligations only arise if the Defendant asks for disclosure (see Stinchcombe), and in a timely way, ie reasonably beforethe start of the trial.

c) Stinchcombe, or first party materials. Anything that is part of the “fruits of the investigation” is to be disclosed, unless the Crownestablishes that it is clearly irrelevant.

d) Third party/O’Connor materials. Only those documents that the Defendant has shown to be “likely relevant” should be consideredas potentially disclosable. Even then, according to the OCA in Jackson, at paragraph 117: “Production to the Applicant follows onlywhere and to the extent that the trial judge considers it warranted after balancing several competing factors.”

e) McNeil records. Again the Defendant must establish some relevance for disclosure. See for example, R. v. Ball, 2009 BCPC,where Judge Woods noted in the context of an impaired/.08 charge, at paragraph 10: a. “I interpret McNeill to require some relevance of the disciplinary/criminal histories of the investigating officers to the matters in issuein the case being prosecuted must exist before materials associated with those histories become produceable as part of first partydisclosure.

Here, they must be some factual or conceptual nexus between any such histories that may exist for investigating officers andthe roles those officers played in the investigation of Ms Bell’s alleged offences before those histories can be said to form part ofrequired, first party disclosure. That is made plain in the acknowledgement, by Charron, J. in McNeil that “[o]f course, not every findingof police misconduct by an officer involved in the investigation will be of relevance to an accused’s case.” (at para 59).

It is also madeplain by these words taken from para. 53: “Obviously, the accused has no right to automatic disclosure of every aspect of a policeofficer’s employment history, or to police disciplinary matters with no realistic bearing on the case against him or her. However, wherethe disciplinary information is relevant, it should form part of the first party disclosure package, and its discovery should not be left tohappenstance.” [12] In the case before the Court today the materials sought by the Defendant were not “fruits of the investigation”.

Defence did notadvance any arguments as to how they might be “likely relevant”. The application is therefore dismissed. _____________________________ D. Brent Adair, Q.C., Judicial Justice