R. v. Ball

2013 BCSC 710 R. v. Ball IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ball, 2013 BCSC 710 Date: 20130423 Docket: AH61478072 Registry: Victoria Regina v. Michelle Suzanne Ball Before: The Honourable Madam Justice Gropper On appeal from: Provincial Court of British Columbia, June 13, 2012 (R. v. Ball, Sidney Registry No. AH61478072) Reasons for Judgment Counsel for the Crown: E. Wolfram Counsel for the Accused: I. Bern Place and Date of Trial/Hearing: Vancouver, B.C. December 21, 2012 Place and Date of Judgment: Victoria, B.C. April 23, 2013 Introduction [1] Michelle Ball appeals her conviction for the offence of speeding contrary to s. 146(3) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA] in North Saanich, British Columbia on June 19, 2011. [2] The basis for the appeal is that Constable Guineau, who was both the investigating officer and prosecutor, refused to provide relevant disclosure in her possession that Ms. Ball intended to use to refute the allegation of speeding. Ms. Ball sought disclosure of violation tickets issued to other vehicles by other officers in the same area at the same time on the date of the offence to advance the defence that Constable Guineau could have been mistaken about her speed because she had actually targeted another vehicle. She believed those documents were required in order for her to advance her defence. Background Request for Documents [3] On December 21, 2011, defence counsel sent a disclosure request to Constable Guineau in her capacity as crown seeking disclosure of 20 items. Among other things, the defence requested: 14. The number of motor vehicles that were stopped at the same specific location, on the same date of the alleged offence, for allegedly speeding. 15. The data maintained for all of the alleged speeding offences in that time frame, whether on a CD or in paper format, including the times of the alleged offences, the speed travelled, the vehicle makes and models, and the officers involved. 16. The names and locations of any other officers on that date using radar machines within 10 kilometres of the location of the incident[.] [4] Constable Guineau responded on December 28, 2011 by providing a copy of the violation ticket, her notes, a document described as "McNeil Disclosure" and a copy of her certificate for operation of a laser. In the McNeil Disclosure document, the readings in respect of the speed of Ms. Ball's vehicle are described as "106 km/hr just coming into 50 km per hour zone" and a second reading of "95 km/hr well within the 50 Km/hr zone and entering into the 20 km/hr zone approaching the Swartz Bay BC Ferry Terminal." January 13, 2012 Hearing [5] The violation ticket served on the appellant on June 19, 2011 was set for hearing in traffic court before a Judicial Justice of the Peace (JJP) in Sidney on January 13, 2012. [6] In that hearing, defence counsel sought an order for disclosure, and in the alternative, a stay of proceedings. Constable Guineau advised the court that she had produced everything in her possession. Defence counsel argued disclosure was incomplete: he suggested there was a spreadsheet, CD or some document showing how many cars were charged with speeding on the specific date at that specific location. [7] Constable Guineau advised the court that no spreadsheet, CD or document existed. She explained that in order to produce information about other speeding violations involving other individuals that occurred on the same day, at the same location, including the names of all officers who issued the tickets, their notes, the times of the offences, the number of speeding tickets issued, the speed at which those vehicles were travelling and the makes and models of the vehicles involved, she would have to go through all of the tickets issued by any officer in the area that day and all of the files issued that day, manually, to create such a record. [8] The JJP declined to make such an order in respect of the disclosure sought by Ms. Ball. He noted that in the context of a speeding ticket charge under the MVA before the traffic court, the crown's disclosure obligation is lower as compared to a criminal charge under the Criminal Code, R.S.C. 1985, c. C-46. [9] The JJP concluded: I'm not going to make any order [for disclosure] the Crown has to pull all of the tickets that were issued for that location on that day. I'm not going to make that order. my reading of [R. v. Stinchcombe [1991] 3 S.C.R. 326] and some of the subsequent decisions that deal with Stinchcombe, [R. v. McNeil, 2009 SCC 3], [is] [t]hat essentially Stinchcombe requires between the Charter and the common-law requires the Crown to disclose the evidence that they have gathered in respect of the particular offence that's being charged. ... it's not an absolute or all-encompassing, it's those things that would reasonably be related to ... your client being able to make full answer and defence to the charge. ... I'm not prepared to make any order for disclosure beyond what you've already either ... learned today, or from the ... answer that you got from Constable Guineau. [10] Defence counsel informed the court that he was not in a position to set a trial date because he needed to get instructions from his client with respect to an appeal. The court granted an adjournment. June 13, 2012 Hearing [11] In the hearing of the matter on June 13, 2012, counsel for Ms. Ball reiterated the request for disclosure. [12] Defence counsel cross-examined Constable Guineau concerning her notes. He established that the records of speed in the McNeil Disclosure were incorrect. Constable Guinea's notes disclosed that Ms. Ball's vehicle registered 85 km/hr just coming into the 50 km/hr zone. The second reading was 84 km/hr within the 50 km/hr zone entering into the 20 km/hr. On that basis, the McNeil Disclosure had exaggerated the speed of Ms. Ball's vehicle and had not properly reflected the speed registered. [13] In his submissions, defence counsel explained that the only way he could adduce cogent and persuasive evidence relating to Ms. Ball's defence that Constable Guineau had misidentified the vehicle was if the crown complied with the disclosure request. The disclosure was required to raise a reasonable doubt. [14] In his reasons for judgment, the JJP addressed Ms. Ball's application for disclosure and her position that due to improper disclosure the ticket issued against her should be stayed. He stated: THE COURT: I am sure it does not surprise you, Mr. Bern, that I have not changed the view that I expressed, I guess it was in January when we were here last, in terms of disclosure. In my view, the disclosure that you did not receive met the requirements of disclosure and a speeding offence ticket in British Columbia. [15] The JJP also addressed the errors in the McNeil Disclosure: In terms of the improper disclosure, I do accept the explanation that was given in terms of how the information that was on the back of the ticket, her notes made at the time were different that what was written down in the response, and so, in my view anyway, it was not improper disclosure in the sense of being one that should result in a stay of proceedings. In terms of the evidence, I am satisfied that the officer who was there for the specific purpose of monitoring and enforcing speed at that location, who had a view of what was approaching her, she visually formed the impression that there were two vehicles that were approaching her that were both within or past the 50-kilometre-an-hour sign that were exceeding that by some significant degree, and that she also had an instrument that she had tested before and after, at the beginning of her shift and the end of her shift, that indicated to her that it was working properly and gave a speed that was consistent with her visual and that on the basis ─ and that there were no other vehicles within a close range of these two vehicles that would have impacted on the driving of these two vehicles, and on the basis I am satisfied that they have proved the speeding beyond a reasonable doubt, so I do make a finding of guilty. Appeal Hearing [16] The focus of the appellant's argument is the issue of disclosure and whether she was given the opportunity to make full answer and defence, to which she is entitled in accordance with the Offence Act, R.S.B.C. 1996, c. 338. Ms. Ball argues that the failure to provide sufficient disclosure constituted an "abuse of process which in light of minor nature of the offence, requires that in the interest of justice, the conviction be set aside and a stay of proceedings ordered." [17] In the alternative, the appellant asserts that the McNeil Disclosure, which purports to provide the speed of Ms. Ball's vehicle, is a "false narrative relating to the charge, which should raise a reasonable doubt as to whether Ms. Ball was guilty of the offence charged". [18] The crown argues that Constable Guineau disclosed all of the relevant information that she had, including the fruits of her investigation against Ms. Ball. She did not disclose details of other speeding violations or tickets written by another police officer regarding a different vehicle at another time. It is the crown's position that such disclosure is irrelevant. The crown argues that the JJP's denial of the application for an order for disclosure was a discretionary ruling that does not justify appellate intervention. In order to justify such intervention, the appellant must show the JJP misdirected himself as to the applicable law or made a palpable error in the assessment of the facts: R. v. Regan, 2002 SCC 12. [19] The crown argues that the legal principles support and ground the JJP's refusal to order the disclosure requested: 1. the disclosure required for a regulatory absolute liability offence is more limited than that which is required in a criminal matter (R. v. Stinchcombe, [1991] 3 S.C.R. 326); 2. the obligation to disclose relates only to information in relation to the events charged. There is no duty to provide disclosure about other investigations; 3. the appellant could not, by means of a disclosure request, require the police to conduct further investigation; and 4. the disclosure request was not relevant and reasonably related to the appellant's defences. Analysis [20] The parties provided various authorities to support their position. The Ontario Court of Appeal succinctly summarized the disclosure obligations of the crown and the police in the recent decision of R. v. Spackman, 2012 ONCA 905 at paras. 105 - 109: 105 The Crown's obligation to make timely disclosure to an accused of all relevant information in its possession is well established at common law and now constitutionally entrenched in the right to make full answer and defence under the Charter: R. v. McNeil, 2009 SCC 3 ... at para. 14. As a necessary corollary to the Crown's disclosure duty under R. v. Stinchcombe, [1991] 3 S.C.R. 326, the police (or other investigating state authority) have an obligation to disclose to the Crown all material pertaining to its investigation of the accused: McNeil, at para. 15. 106 Under our system of law enforcement, the general duty to investigate allegations of criminal conduct falls upon the police. The fruits of a criminal investigation, it follows, are gathered by the police who also determine, often with the benefit of legal advice from the Crown, whether criminal charges will be laid. The Crown obtains the fruits of the investigation because of the corollary duty of police investigators to disclose to the Crown all relevant material in their possession: McNeil, at para. 23. 107 It does not follow from the disclosure obligations imposed upon the Crown, or the correlative duty imposed upon the police to turn over their fruits of the investigation to the Crown, however, that an accused is entitled to a particular kind of disclosure or assured of a specific form of investigation. 108 The disclosure obligations of the Crown do not require the production of witnesses for discovery, for example by calling them as witnesses at a preliminary inquiry: R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 23; R. v. Khela, [1995] 4 S.C.R. 201, at para. 18. Nor does an accused have a constitutional right, as an incident of the right to make full answer and defence or otherwise, to an adequate police investigation of the crime with which she or he is charged: R. v. Darwish, 2010 ONCA 124, (2010), 103 O.R. (3d) 561, at para. 29; R. v. Barnes, 2009 ONCA 432, at para. 1. Further, an accused has no constitutional right to direct the conduct of a police investigation of which she or he is the target or, through a disguised disclosure demand, conscript the police to undertake investigatory work for him or her: Darwish, at para. 30; R. v. Schmidt, 2001 BCCA 3, 151 C.C.C. (3d) 74 (B.C.C.A.), at para. 19. On the other hand, the police and Crown should give serious consideration to investigative requests made on behalf of an accused: Darwish, at para. 30. That said, it is the prosecutorial authorities, not the defence, that bear the ultimate responsibility for determining the course of the investigation: Darwish, at para. 30. 109 The disclosure right of an accused does not extend so far as to require the police to investigate potential defences: Darwish, at para. 31. Where, however, material and meritorious allegations of state misconduct are advanced as a basis for Charter relief in an ongoing criminal prosecution, a duty to investigate may be imposed: Darwish, at para. 38; see also R. v. Ahluwalia (2000), 149 C.C.C. (3d) 193 (C.A.), at paras. 70-72. [Bold emphasis added.] [21] The comments of Mr. Justice Watt are apposite here. Ms. Ball is not entitled to a particular kind of disclosure or a specific form of investigation; nor does she have a constitutional right incidental to the right to make full answer and defence. She has no constitutional right to direct the conduct of a police investigation of which she is the target. Nor can she achieve that objective by way of a disclosure demand requiring the police undertake investigatory work. This ground of appeal is dismissed. [22] The remaining ground of appeal is whether the erroneous numbers on the McNeil Disclosure and the fact that the correction was made by Constable Guineau at the trial is an abuse of process requiring a stay of proceedings. [23] I disagree with this assertion as well. The ticket and the notes on the back of it were provided to the appellant and indicated the correct speeds registered. Constable Guineau acknowledged the error in her cross-examination. She noticed the error when she was preparing for the court proceedings in January 2012, but had not mentioned it to counsel for Ms. Ball. That amounts to a failure to disclose. However, as the Crown points out, Ms. Ball must demonstrate actual prejudice to her ability to make full answer and defence: R. v. O'Connor, [1995] 4 S.C.R. 411 at para. 74. Ms. Ball has not shown actual prejudice and for this reason, this ground of appeal is also dismissed. Conclusion [24] The appeal from conviction is dismissed. "Madam Justice M. Gropper"