R. v. Elkins

2017 BCSC 2554 R. v. Elkins IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Elkins, 2017 BCSC 2554 Date: 20171221 Docket: 26299-2 Registry: Quesnel Regina v. John Junior Elkins (also known as John Elkins Junior) Corrected Judgment: the front page was corrected to add another counsel on March 13, 2018 Before: The Honourable Mr. Justice Bowden Oral Ruling on Defence Application for Production of PIRS and PRIME Records of Louis Korkowski and Shayleen Jimmie Counsel for the Crown: J.C. Johnston Counsel for the Attorney General of Canada: J. Katz Counsel for the Accused: J. Rempel Place and Date of Trial/Hearing: Quesnel, B.C. December 18-21, 2017 Place and Date of Judgment: Quesnel, B.C. December 21, 2017 [1] THE COURT: The accused has applied for the production of PIRS and PRIME records, which I will refer to as the "records," relating to allegations of discreditable conduct on the part of Crown witnesses, Louis Korkowski and Shayleen Jimmie. [2] Defence counsel submits that the records should be disclosed as first-party records pursuant to R. v. Stinchcombe, [1991] 3 S.C.R. 326 or, in the alternative, as third-party record pursuant to R. v. O'Connor, [1995] 4 S.C.R. 411. The Crown's position is that the records need not be disclosed under the Stinchcombe regime because they are not fruits of the investigation nor is there a reasonable possibility that the records may assist the accused in making full answer and defence. As to O'Connor, the Crown says the applicant has not established the likely relevance of the records. [3] I will briefly review the background. The accused is charged with break and enter and committing the indictable offence of assault with a weapon, mischief, and assault. The charges arose out of an incident that is alleged to have occurred on November 28, 2015, in Quesnel, B.C. The Crown alleges that the accused broke into a residence and assaulted Jarrett Jimmie. Louis Korkowski was living in the residence at the time together with his then partner, Shayleen Jimmie, and their two children. Shayleen Jimmie's cousin, Jarrett Jimmie, also resided in the house. The accused is the former boyfriend of Shayleen Jimmie and he is alleged to have broken down the front door, had a confrontation with Mr. Korkowski and Ms. Jimmie, and attacked Mr. Jimmie with a knife. Mr. Jimmie was not seriously injured. The accused is said to have left the house after having another confrontation with Mr. Korkowski. [4] Before the trial proper began, the accused applied for the disclosure of the records sought in this application and the criminal record of Mr. Korkowski, who was scheduled to be a Crown witness. His criminal record was filed as an exhibit in the trial. On February 16, 2017, my brother judge, Sewell J., ruled that, "In the absence of any indication that the RCMP accessed Mr. Korkowski's PRIME records in connection with the investigation of the accused, the application for production must be governed by the procedures in R. v. O'Connor." As Sewell was not the trial judge, he did not consider it appropriate to rule on the question of production under the O'Connor regime and was also concerned that Mr. Korkowski had not been served with the application. In paragraph 34 of his reasons, Sewell J. said: In addition, it may become apparent at trial that the information was accessed by the police in the course of the investigation. In that event, the defence may be entitled to renew its Stinchcombe application. [5] The trial commenced before me on February 20, 2017, and a voir dire was declared to consider an application by the accused for the production of PIRS and PRIME records relating to Mr. Korkowski pursuant to R. v. O'Connor. Mr. Korkowski was served, attended the trial, and chose not to be represented by counsel. On February 21, 2017, I ruled that the accused had not satisfied the first requirement of O'Connor in that the records sought were not likely relevant to the complainant's credibility on a particular material issue at trial. [6] During the course of the trial proper, it became apparent that RCMP Constable Morrison had accessed PRIME files relating to Mr. Korkowski. Constable Morrison was originally dispatched to the residence where the alleged break and enter had occurred. She said the dispatch had originated from a 911 call by Mr. Korkowski. In accordance with her usual practice, she had the dispatcher check the PRIME records of Mr. Korkowski to determine if there was any issue of officer safety or any outstanding warrants regarding Mr. Korkowski. She testified that she found neither when the dispatcher returned the results of the search of PRIME. She also said that she checked those records when she returned to the detachment and found nothing of relevance. The Crown in the trial proper, who is not the Crown before me in this application, then conceded that the records were disclosable and agreed to review the records and provide them to defence counsel. On March 7, 2017, Crown counsel resiled from his position and informed defence counsel that he was in error when he indicated that the records were disclosable. [7] Defence counsel then brought this application, which is consistent with Sewell J.'s comments in para. 34 of his ruling. Defence counsel submits that Mr. Korkowski and Ms. Jimmie's evidence is essential to the Crown's case and significant issues of credibility of both of them have been raised citing these examples: (a) Mr. Korkowski testified at the preliminary inquiry and trial that the accused stabbed the bed. However, Constable Morrison examined the bed and found no stab marks. (b) Mr. Korkowski testified that he did not call the police. However, the evidence of the police officer was otherwise. She said he did call and she even picked him up and gave him a ride. (c) Ms. Jimmie admitted knowingly not telling the truth to the judge at the preliminary inquiry. [8] Defence counsel submits that based on Sewell J.'s ruling and the principles of Stinchcombe, the police accessed the records in the course of the investigation of these offences and any evidence of discreditable conduct of Mr. Korkowski or Ms. Jimmie in the possession of the police should be disclosed to the accused. Defence counsel argues that as credibility has been established as a major issue at trial, evidence related to the credibility of Mr. Korkowski and Ms. Jimmie is likely relevant to the issue of credibility at trial and, thus, the first test in O'Connor is satisfied and the requirements in Stinchcombe have also been satisfied because the records amount to the fruits of the investigation by the RCMP. [9] The Crown's position is that while Constable Morrison gave evidence of how the databases were checked and what the databases can show, she did not give evidence of how the information in the databases regarding Mr. Korkowski was used in this investigation. The Crown says that the conclusion should be that she had no such evidence to give because the information was not used in furtherance of the investigation. Where, as here, the Crown says that accessing the records played no part in the building of the Crown's case or the evidence called by the Crown, then the information is not fruits of the investigation nor is there a reasonable possibility that it may assist the accused in making full answer and defence. [10] With regard to Ms. Jimmie, the Crown says that Constable Morrison gave no evidence that she accessed the PRIME or PIRS databases relating to Ms. Jimmie, so the Stinchcombe regime would have no application in relation to her. [11] With regard to O'Connor, the Crown's position is that the likely relevance of the records to the issue of credibility at large is insufficient to found a disclosure order. The accused must point to some case-specific evidence or information which suggests that the records contain information that was not otherwise available to the accused or has potential impeachment value in relation to such evidence or information. [12] I will turn now to my analysis. I will deal first with the application pursuant to Stinchcombe and whether or not the accessing of the records by the RCMP led to an obligation to disclose them on their part or by the Crown. In my view, the records that the applicant is seeking are third-party records and not first-party records and the O'Connor principle should apply in determining whether or not they should be disclosed. [13] In R. v. Jackson, 2015 ONCA 832, Watt J.A. commented that two principal factors determine the Stinchcombe production regime that will apply when an accused seeks disclosure of something the Crown has not provided. The first involves the nature of the information sought and the second concerns who is in possession of the information. Dealing with the second factor first, in this case, the records sought are not in the possession of the prosecuting Crown. The records are in the possession of the RCMP, who are a third party for the purposes of this application, and I cite there R. v. Jackson, 2015 ONCA 832, at para. 80. As to the first factor, Watt J.A. writes that the description, "fruits of the investigation," accurately described the subject matter of Stinchcombe disclosure. [14] In my view, the records of Mr. Korkowski were not gathered by the police in furtherance of the investigation of the offences charged. Rather, the records were accessed as a matter of course to determine if an issue of officer safety was present or whether a warrant was outstanding for Mr. Korkowski. There is no evidence indicating that the purpose of accessing the records went beyond a routine background check or that the records were in any way relevant to the charges. There is no evidence that the records relate to matters that the Crown intended to adduce in evidence against the accused. There was no reference to the records in the Report to Crown Counsel by the RCMP. Accordingly, it is my view that the accused must rely on R. v. O'Connor as a basis for the disclosure of the records sought. This view is consistent with Sewell J.'s views expressed in his ruling. As I have noted, while leaving it open for the defence to make this application, Sewell J. commented at para. 29: Thus it would appear that if the police access a database as part of the investigation and uncover relevant information, that information should be producible under Stinchcombe if it is relevant. It is obvious that a certain amount of judgment must be exercised by the police in deciding whether information contained in such databases is producible. However, in my view the mere fact that the police access such databases does not make the information contained in them producible as first party information. [15] There is no evidence that the police uncovered any relevant information when the records were accessed. In my ruling on the first O'Connor application brought by the accused, I dismissed the application. I determined that the accused had not met the requirement of likely relevance and relied on the comments of L'Heureux‑Dubé J. at para. 142 of O'Connor. The Crown and the Attorney General for Canada, who is also represented here, have not argued that the current application pursuant to O'Connor is res judicata, and I will address the question of likely relevance in light of the new arguments by the applicant in this second application. I note that the second application also involves a claim for records relating to Ms. Jimmie. [16] In particular, the applicant argues that the test of likely relevance is not as stated by L'Heureux‑Dubé J. at para. 142 of O'Connor. Rather, the applicant says the approach of Lamer J. and Sopinka J. at para. 22 should be followed; namely: In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. When we speak of relevance to "an issue at trial", we are referring not only to evidence that may be probative to the material issues in the case (i.e. the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case. [17] Relying on those comments, the applicant submits that the records sought may be probative to the credibility of Mr. Korkowski and Ms. Jimmie without any restriction. He contrasts the approach of Lamer J. and Sopinka J. with the approach of L'Heureux‑Dubé in para. 142 where she states: . . . the applicant cannot simply invoke credibility "at large", but must rather provide some basis to show that there is likely to be information in the impugned records which would relate to the complainant's credibility on a particular, material issue at trial. [18] The applicant asserts that in a subsequent decision of the Supreme Court of Canada, R. v. McNeil, [2009] 1 S.C.R. 66, the court preferred the test articulated in para. 22 of O'Connor to that found in para. 142 as indicated by the following comments of the court at para. 33: "Likely relevant" under the common law O'Connor regime means that there is "a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify" [citing] (O'Connor, at para. 22 . . . An "issue at trial" here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also [evidence -- quoting this] "evidence relating to the credibility of witnesses and to the reliability of other evidence in the case" [again citing] (O'Connor, at para. 22). At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position. [19] The Crown submits that the applicant has incorrectly applied the reasoning of the Supreme Court in McNeil in concluding that the approach in para. 142 of O'Connor has been effectively overruled. I agree with the Crown that there is no basis for concluding that "evidence relating to the credibility of witnesses" in para. 22 of O'Connor is intended to mean something other than "complainant's credibility on a particular, material issue at trial," referred to in para. 142. It is not apparent that Lamer C.J. and Sopinka J. intended to disagree with L'Heureux‑Dubé's approach in para. 142. The disagreement by Lamer C.J. and Sopinka J. with the opinion of L'Heureux‑Dubé is described in para. 2 and related to the disclosure and production of therapeutic records in that case. In paragraph 22, Lamer C.J. and Sopinka J. refer to R. v. R.L., which is reported as R. v. Rankin, [1995] O.J. No. 1381, a decision of the Ontario Court of Appeal. Paragraph 18 of that decision is referred to and makes it clear that the mental health records of victims may be both relevant to a fact in issue and the competency of the victims to testify. [20] To paraphrase, the court stated that as both the appellant and the two victims were institutionalized patients in a mental health facility at the time of the offence, the content of the victim's medical record is likely to be pertinent to a charge of aiding to commit suicide. With reference to the credibility of the victims, the court noted that the information may bear on the quality of their perception of events at the time of the offence and their memory since that time. In my view, that is an example of case-specific evidence supporting the disclosure of the information sought. Lamer J. and Sopinka J. use this is an example of one way in which the information contained in third-party records may be relevant. This is quite consistent with the approach used by L'Heureux‑Dubé J. in para. 142 of O'Connor. [21] No case authorities have been referred to that consider whether or not the comments in the Supreme Court in para. 33 of McNeil have the effect of giving a stamp of approval to the comments in para. 22 of O'Connor and disapproving the comments of L'Heureux‑Dubé in para. 142. However, there have been case authorities since McNeil that have followed the approach of L'Heureux‑Dubé in O'Connor. In R. v. Groves, 2011 BCSC 946, Fisher J., as she then was, referred to para. 33 in McNeil and also cited L'Heureux‑Dubé J.'s comments in O'Connor in saying that the mere assertion that the records sought may be relevant to credibility is not sufficient to justify production. In R. v. Nepinak, 2010 BCSC 1659, Romilly J. refers to para. 22 in O'Connor and goes on to find that the bare assertion by the defence that the records are relevant to the complainant's credibility does not establish likely relevance. In my view, this supports the Crown's argument that para. 22 should not be read as being inconsistent with para. 142 in O'Connor, and the test remains as stated by L'Heureux‑Dubé in that paragraph. [22] The applicant argues that the comments of L'Heureux‑Dubé J. in para. 141 of O'Connor support his position that Lamer J. and Sopinka J.'s comments in para. 22 indicate that likely relevance may be established based on the records relating to the credibility of a witness, particularly an important witness such as Mr. Korkowski. In my view, they do not go that far. While L'Heureux‑Dubé J. does not appear to share the view of Lamer C.J. and Sopinka J. that the standard of likely relevance should be interpreted as an onerous burden, on the facts of O'Connor, she finds that where the records were created for a purpose unrelated to the investigation, it cannot be assumed that they are likely to be relevant unless the accused is able to show that they are. [23] Here, the accused has referred to three examples of credibility concerns regarding Mr. Korkowski and Ms. Jimmie as a basis for the production of the records. In my view, it is not reasonable to assume that the records sought will be relevant to any of those examples. The applicant has not established some basis to show that there is likely information in the records which would relate to credibility on a particular material issue at trial. This leaves the applicant in the position of asserting that the records sought may be relevant to credibility at large in respect of Mr. Korkowski and Ms. Jimmie. In my view, that is not sufficient to justify production. If credibility at large was sufficient to found an order for disclosure, even with respect to important witnesses in a criminal trial, it would likely result in an increased number of applications of this nature, thus exacerbating the problems of delay identified by the Supreme Court of Canada in R. v. Cody, 2017 SCC 31. [24] While I do not consider this to have been a frivolous application and indeed the applicant's argument regarding the interpretation of O'Connor was novel and well presented, in the end result, I have concluded that the application must fail. The application for disclosure of the records pursuant to both Stinchcombe and O'Connor is dismissed. "Bowden J."