r v. Alexandre, 2023 QCCM 30

R. c. Bowes 2023 QCCM 30 MUNICIPAL COURT OF THE CITY OF MONTRÉAL CANADA PROVINCE OF QUEBEC DISTRICT OF Montréal N o : 121-063-598 DATE: May 8, 2023 ______________________________________________________________________ BY THE HONOURABLE MARIE-JOSÉE DIONNE ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. Alexandre BOWES Defendant ______________________________________________________________________ DECISION ON A MOTION FOR DISCLOSURE OF EVIDENCE ______________________________________________________________________ 1.

OVERVIEW [ 1 ] The defendant-appellant (the applicant) is on trial for an offence for having wilfully obstructed a peace officer in the execution of his duty arising out of events occurring on May 1, 2021. [ 2 ] In the course of the trial, the defence brings a motion to exclude evidence based on sections 9 , 10(

b) and 24(2) of the Canadian Charter of Rights and Freedoms (the Charter ). Specifically, the defence argued that there had been a delay in both the transmission of the right to counsel and the exercise of that right. It further alleges that the extension of the detention does not meet the requirements of

section 498.1 of the Criminal Code , which allows a peace officer to detain a person for the purpose of identification. [ 3 ] Prior to the hearing of this motion and the evidence on the merits, the defence presents a motion for disclosure of the evidence, which is the subject of this decision. [ 4 ] In support of this motion, the applicant explains the factual context and the allegations as following at paragraphs 1, 2, 3 and 4 of the application: 1. [The applicant] was taking

part in a protest again excessive COVID-19 measures enacted by the government. 2. During the protest, [he] was filming the police officers in attendance. 3. Officers claim [the applicant] was not wearing a mask and the police sought to ticket [him]. 4. Officers violently apprehended [the applicant] and engaged in a procedure described in disclosure as « une ponction ». 5. […] 6.

Defence has requested that the Crown obtain from the police materials concerning a description and training on this « ponction » procedure. [ 5 ] The Crown refused to comply with that request based on it not being in their possession and the lack of relevancy. 2. POSITION OF THE PARTIES [ 6 ] Defence counsel argues that the prosecution must disclose this information under Stinchcombe [1] because it goes to the heart of the matter.

Indeed, since the officers are invoking the use of a specific maneuver in order to justify the use of force, there are presumably preconditions for the use of that maneuver. [ 7 ] Counsel for the prosecution argues that he has fulfilled his disclosure obligations. Referring to Chaplin [2] , he argues, first, that the request is so broad and vague that it is not possible to know what the defence is seeking. Therefore, the existence of the requested information has not been established.

[ 8 ] Moreover, if it exists, it is not in the possession of the Crown, but in the hands of a third party. In this regard, he refers to the École Nationale de Police du Québec (ÉNPQ). [ 9 ] He alleges that these elements are not relevant because they are not part of the fruits of the investigation. According to him, the « ponction » performed is not a procedure specifically applied to the applicant, but rather it constitutes a procedure that the police apply generally. It is a routine procedure and does not constitute excessive force. [ 10 ] Thus, he argues that the regime in O’Connor [3] applies.

Such an application would determine whether the information sought is likely to be relevant and whether it is privileged. 3. ISSUES 1) Does the information sought exist? 2) What is the applicable regime? [ 11 ] To answer this question, the Court must answer the following question: 2.1) Is the information sought in the possession or control of the prosecutor? [ 12 ] If the answer is yes, the information sought should be disclosed.

If not, the Court should answer the following question and sub-question: 2.2) Is the nature of the information sought such that the police or another crown entity in possession or control of the information ought to have supplied it to the prosecuting crown? 2.2.1) Is the information obviously relevant? 4.

THE LAW [ 13 ] It is established by Stinchcombe [4] and Gubbins [5] that the prosecution has a duty to disclose the fruits of the investigation, i.e ., the police investigative files generated in the course of or as a result of a particular investigation into the charges against the accused, as well as information that is clearly relevant, i.e. , information that is not part of the investigation but that relates to the ability of the accused to rebut the Crown’s case, to present a defence or to otherwise consider the conduct of the defence [6] . [ 14 ] The prosecution must therefore disclose all relevant non-privileged material in its possession or control whether inculpatory or exculpatory. [ 15 ] This duty arises from the accused’s constitutional right to make full answer and defence under the Charter . [ 16 ] If the prosecution refuses to withhold the requested information, then the onus is on the prosecution to establish that the information is clearly irrelevant or privileged. [ 17 ] It is also recognized that the "Crown" for disclosure purposes includes other state authorities.

Conversely, this does not mean that all state authorities are one state entity for disclosure purposes, so that the police may have to be considered a third party. [ 18 ] Where the information sought does not flow from the fruits of the investigation and is not clearly relevant, the onus is on the defence to establish that the information is likely relevant under the test of likely relevance [7] .

The defence must establish that there is a "reasonable possibility that the information is of probative value in relation to an issue or the competency of a witness to testify". [8] [ 19 ] This burden, which is less onerous than genuine relevance, is very broad: it "includes information that would reasonably be expected to assist the accused in making full answer and defence". [9] [ 20 ] In Gubbins , the Supreme Court of Canada set out the framework for determining which regime applies as follows: [33] Based on the previous discussion of disclosure regimes, to determine which regime is applicable, one should consider:

(1) Is the information that is sought in the possession or control of the prosecuting Crown? and

(2) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified as being part of the fruits of the investigation or obviously relevant.

An affirmative answer to either of these questions will call for the application of the first party disclosure regime.[1] Otherwise, the third party disclosure regime applies […]. [10] [References omitted] [ 21 ] That said, the defence must still establish a foundation to support the existence of the information sought. The burden in this regard is not stringent and may include oral submissions by the defence. [11] 5. ANALYSIS AND DECISION 1) Does the information sought exist? [ 22 ] At the hearing on this application, in reference to the “ponction" procedure, the defence filed the "Précis des faits".

It emanates the following concerning the “ponction”, at the two last paragraphs of page 1 of 3: Faits

Le 1er mai 2021 vers 11 h 45, le prévenu BOWES prenait part à la manifestation « Québec Debout ». Il était au milieu de la foule et filmait les policiers qui effectuaient une ligne à l’intersection Sherbrooke/Charlemagne. Le prévenu ne portait pas son masque comme le décret l’oblige lors d’une manifestation. À 11 h 50, les agents PROULX #1758 et BOULANGER #5651 vont effectuer ce qu’on appelle une ponction en retirant le prévenu BOWES de la foule pour lui émettre un constat d’infraction .

L’agent BOULANGER prend le bras droit du prévenu BOWES alors que l’agent PROULX prend le bras gauche du prévenu en lui expliquant qu’il allait l’identifier car il ne porte pas son masque. [Emphasis added] [ 23 ] Counsel for the prosecution argues that the defence’s claim is too broad and vague to determine what is being sought. He further argues that the “ponction“ is not a specific procedure. He relies on the Chaplin [12] decision. In that case, the defence sought any evidence relating to any investigation the accused might be subject to.

Not only had the existence of such material not been established, but its relevance to the charges he faced had not been established. [ 24 ] In our case, the prosecution’s argument that the “ponction” is not a specific procedure is based on general allegations and is contradicted by information contained in an email from the applicant’s counsel dated December 21, 2022, attached to the motion. [ 25 ] It is clear from this e-mail that it follows the pre-trial conference held on December 8, 2022. [ 26 ] It appears that, prior to the pre-trial conference, at an initial meeting between the defence and the prosecution, the defence raised the issue of the application of unjustified force by the police officers.

Some time later, however, the prosecution lawyer in question, whose identity is unknown to the Court, informed the defence lawyer "that the police told her that a ‘ponction' is a specific maneuver they are trained on and that they believed it was justified in the situation”. [ 27 ] Again, according to defence counsel, in response to this information at the pre-trial conference, prosecution counsel responded that the training material in question was not in their possession. [ 28 ] At the hearing of this motion, prosecution counsel did not comment on the validity of these allegations and the Court has no reason to doubt them, considering also defence counsel’s oath of office. [ 29 ] Considering the rather flexible burden of presentation set out in Chaplin , [13] the Court concludes that this evidence is sufficient to establish a basis for the existence of information relating to the training of the police officers for the execution of the “ponction” maneuver, that is, excerpts from a training manual emanating from the ÉNPQ or any other training document(

s) on which agents Proulx and Boulanger based their maneuver. 2) What is the applicable regime? [ 30 ] In order to decide this question, the Court must first determine whether the information sought is in the possession or control of the prosecutor or whether the nature of the information sought is such that the police or another Crown’s entity in possession or control of the information ought to have supplied it to the prosecuting crown. 2.1) Is the information sought in the possession or control of the prosecutor? [ 31 ] It is undeniable that the information requested, which is relating to the training of police officers on a specific maneuver, is not part of the fruits of the investigation as it was not generated in the course of that investigation. 2.2) Is the nature of the information sought such that the police or another crown entity in possession or control of the information ought to have supplied it to the prosecuting crown? [ 32 ] This question requires an answer to the following sub-question: 2.2.1) Is the information obviously relevant? [ 33 ] According to the police statement, the police officers wanted to identify the applicant in order to issue him a statement of offence on the grounds that he was not wearing a mask while participating in a protest, contrary to the law.

The question of the authority of the police to make such an identification arises from the application of the Code of Penal Procedure . [ 34 ] As the Honourable Justice Pierre C. Gagnon pointed out in Lezoka v Bonenfant , [14] at para. 121 , the legality of such an

interpretation is based on sections 72, 73, 74 and 82 of the Code of Penal Procedure : 72. A peace officer who has reasonable grounds to believe that a person has committed an offence may require the person to give him his name and address, if he does not know them, so that a statement of offence may be prepared. A peace officer who has reasonable grounds to believe that the person has not given him his real name and address may require further information from the person to confirm their accuracy. 73.

A person may refuse to give his name and address or further information to confirm their accuracy so long as he is not informed of the offence alleged against him. 74. A peace officer may arrest without a warrant a person informed of the offence alleged against him who, despite the peace officer’s demand, fails or refuses to give him his name and address or further information to confirm their accuracy. The person so arrested must be released from custody by the person detaining him once he gives his name and address or once their accuracy is confirmed.

82. A peace officer who makes an arrest shall declare his name and quality to the person he is arresting and inform him of the grounds for his arrest. He shall not use more force than necessary. [ 35 ] To this must be added

section 75: 75. A peace officer who finds a person committing an offence may arrest him without a warrant if that is the only reasonable means available to him to put an end to the commission of the offence. The person so arrested must be released from custody by the person detaining him once the latter person has reasonable grounds to believe that detention is no longer necessary to prevent, for the time being, the repetition or continuation of the offence. [ 36 ] Section 498(1.1) of the Criminal Code permits the detention of a person for the purpose of identification: 498

(1) Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in

section 469, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if (

a) the peace officer intends to compel the person’s appearance by way of summons; (

b) the peace officer issues an appearance notice to the person; or (

c) the person gives an undertaking to the peace officer. Person delivered or detained (1.01) Subsection (1) also applies in respect of a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act and who is detained in custody for an offence other than one listed in

section 469 and who has not been taken before a justice or released from custody under any other provision of this Part. Exception

(1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [ 37 ] According to the information gathered by the defence, the police officers considered that the application of the “ponction” maneuver was justified in the situation involving the applicant.

This maneuver consists of applying force against him by grabbing him by both arms in order to remove him from the crowd. [ 38 ] Again, according to the information contained in the police report filed by the defence, the applicant reacted following the initial use of force by the police officers. Considering the allegation that the police officers based the application of the “ponction" maneuver on the teachings of their training, the information in this regard is relevant in several respects. [ 39 ] This evidence is relevant to test the credibility of the officers in justifying the maneuver.

It is also relevant to the question of the degree and timing of force used, as this is directly relevant to one of the essential elements of the offence of obstruction, namely, that the officers were acting in the performance of their duties. [ 40 ] These elements are also relevant to the motion to exclude the evidence since the manner in which the intervention took place affected both its duration and the time at which the applicant was informed of his right to counsel and was able to contact counsel. [ 41 ] Accordingly, the Court finds that the information requested is obviously relevant to make full answer and defence. [ 42 ] The Court does not understand the position taken by the prosecution in this matter as it has been aware since well before the December 8, 2022, pre-hearing conference that the two police officers who used force against the applicant in order to identify him proceeded by performing a specific maneuver learned in their training because they believed they were justified in doing so in the situation. [ 43 ] Once informed of these details, how can the prosecution claim not to know whether the information sought exists?

How can it be justified in not seeking further information in this regard by asking the police officers to specify what training material they were referring to?

[ 44 ] The Supreme Court of Canada in McNeil [15] set out the basis for the prosecution’s duty to inquire and make reasonable attempts to obtain such relevant information as follows: [49] The Crown is not an ordinary litigant. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter.

Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so. [16] [ 45 ] Counsel for the prosecution relies on Gubbins , [17] where the Supreme Court of Canada refused to order the disclosure of maintenance records, and on the case law on the disclosure of the radar operator’s training manual to argue that the application for disclosure in this case is unfounded.

He refers here to Trapani v Director of Criminal and Penal Prosecutions [18] and R v Beauregard [19] of this court. [ 46 ] He also alleges that the guidelines for excessive force are found in the Criminal Code and in the case law, in particular Nasogaluak , [20] so that the information requested by the defence is not relevant. [ 47 ] This approach ignores the fact that the credibility of the police officers is at stake and that they justify performing their maneuver based on what they have learned in training.

This maneuver is the first contact between the officers and the applicant and the first sequence of events.

The information about this part of their training is directly related to the events. [ 48 ] Moreover, by invoking that the defence would have the opportunity to cross-examine the police officers on the issue of the “ponction”, the prosecution indirectly acknowledges the relevance of the subject. [ 49 ] As for the jurisprudence that the information requested is not part of the documents to be disclosed by the principal party, but rather by third parties, it is not unanimously accepted. [ 50 ] Moreover, it appears that neither the facts nor the information sought in the decisions in question are comparable to ours.

Moreover, not only was the information sought deemed to be not demonstrably relevant, but it had not even been shown to be reasonably relevant.

The disclosure requests in this regard were considered to be "blind searches". [ 51 ] In Trapani , the Superior Court based its conclusions on the trial judge’s own reasons, which stated: [73] […]: [36] Arguant que le manuel de formation est entre les mains de l'agent, la défenderesse désire en obtenir une copie puisque celui-ci pourrait lui être utile lors du contre-interrogatoire du policier. [21] [Emphasis added] [ 52 ] That is not what is at issue here, as the precise basis of relevance has been established, as opposed to hypothetical. [ 53 ] Moreover, the case law referred to by the judge in Trapani [22] is not binding on the Court, except for Vanderbank v Director of Criminal and Penal Prosecutions . [23] However, that case dealt with the disclosure of the manufacturer’s manual and its relevance had not been established, this argument being speculative. [ 54 ] In this case, counsel for the prosecution acknowledges that the information sought minimally meets the threshold of arguable relevance. [ 55 ] With respect to the Gubbins [24] decision itself, it must be remembered that it concerns the maintenance records of the breathalyzer and that the Supreme Court of Canada found that the existence of the maintenance records and the fact that the device may have been serviced from time to time were not sufficient to warrant disclosure of the records in question. [ 56 ] The Supreme Court of Canada further considered the existence of the presumption contained in s. 258(1)(

c) Cr.C. and the absence of expert evidence from the accused to conclude that such evidence was not relevant. [ 57 ] In this regard, the Honourable Justice Daniel Royer in Larocque v Director of Criminal and Penal Prosecutions [25] , whose motion for leave to appeal was dismissed [26] , deals with the issue of relevance in a case of speeding captured by a speedometer and emphasizes the nuances that must be drawn between the test and operating procedures contained in the manual for the speedometer and the maintenance records, the certification of the speedometer or any other information that is not related to the operation or use of the speedometer: [88] Aussi, contrairement à ce que soutient le DPCP, les procédures de test et d’opération contenues au manuel d’utilisation du cinémomètre constituent une information d’une autre nature que les registres d’entretien, l’homologation du cinémomètre ou toute autre information qui ne se rattache pas au fonctionnement ou à l’utilisation du cinémomètre au moment des événements.

Les juges Watt et Paciocco expliquent la nuance fondamentale de la façon suivante : The prosecutor also argues that Jackson and Gubbins establish that the user manual excerpts sought in this case are irrelevant. In our view, they do not do so because those cases are different from the one before us. Mr. Jackson and Mr. Gubbins sought disclosure of historical records relating to the performance of an approved instrument on other occasions. Yet the material issue in those cases was how the approved instrument performed when Mr. Jackson’s and Mr.

Gubbins’s blood alcohol levels were being measured, not how the approved instrument performed on other occasions. Expert evidence confirmed that the historical data could tell nothing of that. In contrast, the user manual excerpts sought in this case describe how the speed measuring device was to be used when the speed of the appellant’s vehicle was being measured [138]. [27]

[Empahsis added] [Footnotes omitted] [ 58 ] Thus, care must be taken not to confuse these principles by confusing all types of textbooks. [ 59 ] The Court considers relevant the comments made by Justice Royer when he confirms the prosecution’s obligation to disclose clearly relevant information despite being in the hands of the ÉNPQ. Although this case concerns an accusation of speeding picked up by a speedometer, the Court considers that the following passages are eloquent in connection with our case: [78] Cependant, la police doit transmettre les renseignements qui se rapportent manifestement à la poursuite engagée contre le défendeur même s’ils ne font pas

partie des fruits de l’enquête, parce qu’ils concernent la capacité du défendeur de réfuter la preuve du ministère public, de présenter un moyen de défense ou d’envisager autrement la conduite qu’adoptera la défense[124]. [79] Or, comment M. Larocque pouvait-il mettre en doute le diamètre du faisceau laser, et incidemment que l’agent Morel ne pouvait pas se tromper de véhicule, s’il n’avait pas en sa possession les informations pour vérifier la véracité de son témoignage? Comment M.

Larocque pouvait-il mettre en doute que la marge d’erreur est de 1,6 km/h, qu’il n’y a pas d’effet d’angle ou « d’effet cosinus » à moins de 15 degrés, qu’avec un cinémomètre laser il n’y a pas de lecture de vitesse lorsque l’angle de visée est trop grand, s’il n’avait pas en sa possession les informations pour vérifier la véracité du témoignage de l’agent Morel ? [80] Le témoignage de l’agent Morel sur l’utilisation correcte du cinémomètre relevait en

partie du témoignage d’expert pour lequel M. Larocque n’avait aucun moyen de vérifier sa valeur probante. La juge de première instance ne pouvait pas à la fois refuser à M. Larocque l’accès aux informations pertinentes et en même temps se fonder sur les parties de témoignage de l’agent Morel référant à ces informations pour conclure qu’il avait fait une utilisation correcte de l’appareil sans violer le droit de M.

Larocque à une défense pleine et entière. […] [82] Dans l’arrêt McGuigan , la Cour d’appel de l’Ontario a décidé que le ministère public doit divulguer les procédures de test et d’opération contenues au manuel d’utilisation du cinémomètre[125], et la police doit fournir la documentation au ministère public pour divulgation si elle n’est pas en sa possession[126], sans nécessité de requête O’Connor [127]. [83] Même si l’information ne fait pas

partie des fruits de l’enquête et n’est pas en la possession du ministère public, les procédures de test et d’opération d’un cinémomètre figurant au manuel d’utilisation sont manifestement pertinentes et doivent être divulguées sur demande, puisqu’elles peuvent être utilisées pour mettre en doute l’utilisation correcte de l’appareil et la validité des résultats affichés[128]. [28] [Footnotes omitted] [ 60 ] Like Justice Royer, the Court moreover concludes that: [87] La preuve requise pour obtenir une [telle] divulgation, soit que les renseignements sont vraisemblablement pertinents, c’est-à-dire qu’il existe une possibilité raisonnable qu’ils aient une valeur logiquement probante relativement à une question en litige ou à l’habilité à témoigner d’un témoin[136], est de toute façon facilement rencontrée […]. [29] [Foonotes omitted] [ 61 ] The prosecution’s refusal to disclose the information sought seems to be based more on the fact that it is not in its hands.

Indeed, it mentions on several occasions the fact that the information requested would be in the hands of the ÉNPQ. [ 62 ] However, this fact alone is not determinative and the prosecution is certainly aware of it, considering, as mentioned previously, the Crown’s duties enounced by the Supreme Court of Canada in McNeil [30] and Gubbins [31] . [ 63 ] The prosecution had taken the same position in Larocque , but Royer J. reiterated the fact that in the case of clearly relevant information, "it must be forwarded to the Crown for disclosure upon request without the need to present a request for disclosure of third- party evidence”. [32] [ 64 ] Given the foregoing, the Court concludes that the disclosure of the material sought must be made according to the regime established in the Stinchcombe [33] judgment and the failure of the prosecution to comply with the disclosure procedure compromises the right applicant to make full answer and defence. [ 65 ] Consequently, it is incumbent on the prosecution to make sufficient checks to determine precisely what the police are referring to when they claim to have carried out the “ponction” maneuver learned during their training and whether there is a manual training and/or any other document relating to the “ponction” procedure and to disclose its contents or to justify its refusal to do so. [ 66 ] The prosecution’s argument regarding privilege remains premature, but in the event that the information contains confidential information, the prosecution will have the opportunity to present its arguments in due course.

FOR THESE REASONS , the Court: GRANTS the request; ORDERS the prosecutor-respondent to obtain and send to the applicant the extracts from the ÉNPQ training manual relating to the “ponction” procedure carried out with the applicant on May 1, 2021, and/or any other training document on which agents Proulx, #1758, and Boulanger, #5651, based their use of force against the applicant on this date;

GRANTS the prosecutor-respondent a time limit that he deems appropriate to communicate the evidence or inform the applicant that it is not or no longer available, if applicable; GRANTS the prosecutor-respondent the opportunity to be heard, if necessary, on the privileged nature of the evidence sought; CONVENES the parties on an agreed date to report on the status of the disclosure. All at no cost. __________________________________ MARIE-JOSÉE DIONNE, J.M.C. Mtre. Vincent Pelchat For the prosecution Mtre. David Anber For the defence Date of hearing: April 3, 2023