R. v. Darling

2017 BCSC 2439 R. v. Darling IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Darling, 2017 BCSC 2439 Date: 20171222 Docket: 36905 Registry: Port Alberni Regina v. Larry Sinclair Darling Corrected Judgment: The text of this judgment was corrected at paragraph [4] on October 18, 2018. Before: The Honourable Mr. Justice Thompson Oral Reasons for Ruling on Disclosure Application Counsel for the Crown: D. Fitzsimmons K. Paziuk Counsel for the Accused: K. McCullough B. Lynskey Counsel for the RCMP: J. Katz Place and Date of Hearing: Nanaimo, B.C. December 12-15 & 19, 2017 Place and Date of Ruling: Nanaimo, B.C. December 22, 2017 [1] THE COURT: The accused is charged with the first-degree murder of Kristy Morrey, who died in Port Alberni on 20 August 2006. On 18 October 2017, both the accused and the Attorney General indicated their consent to trial of this case by judge alone, pursuant to s. 473(1) of the Criminal Code. [2] This disclosure application arises in the midst of various voir dires that are running concurrently, including voir dires concerning the voluntariness of post-arrest statements, the admissibility of the accused's statement to the crime boss in a Mr. Big undercover operation, and whether there has been an overarching abuse of process that affects the admissibility of these various statements. [3] On 31 October 2017, I granted a Crown application for an adjournment on the basis that Crown counsel who to that point had conduct of the case had taken ill and was not expected to return. I granted a six-week adjournment to enable newly appointed lawyers, Mr. Fitzsimmons and Mr. Paziuk, to familiarize themselves with the case and assume conduct. [4] During this six-week period, Mr. McCullough corresponded with Mr. Fitzsimmons and Mr. Paziuk respecting disclosure. Four letters are in evidence on this application. These letters were written to acquaint newly appointed Crown counsel with the disclosure issues that have hobbled progress of the voir dires, and to ask that the Crown voluntarily disclose the materials sought on this application. [5] The Crown's response to the disclosure requests was in the form of a letter that I have not seen. I was told that it amounted to a statement that voluntary disclosure was over and an invitation to bring on an application if defence counsel were of the view that the disclosure to date was insufficient. Thus this application which seeks a sweeping set of disclosure orders. [6] However, at the end of Mr. McCullough's very thorough submissions, Mr. Fitzsimmons conceded that most of the various orders sought by the accused in his notice of application are appropriate. One of the orders sought is production of certain RCMP units' business rules respecting the gathering, retention, storage, management, and disclosure of information. Mr. Katz appeared on behalf of the RCMP to contest the application for this particular order. [7] Because Crown counsel -- for good reason in my estimation -- do not oppose the vast majority of the orders sought by the accused, my reasons in support of making the orders sought will be brief. I will, of course, specifically address the business rules because of the RCMP's resistance to disclosure of these rules. [8] It is necessary to start by saying something about the cause of the disclosure problems. In his submissions, Mr. Fitzsimmons stressed that the Crown was more interested in looking forward than backward, and that the Crown wants to get on with making proper disclosure and calling its case. I understand and appreciate this perspective, but in order to minimize the risk of continuation of disclosure issues I think it makes sense to be explicit about what I perceive to be the cause of the disclosure problems. [9] For proper context, it is well to remember some fundamental concepts that emerge from the many authorities cited by counsel in their submissions. The first point to be made is the crucial importance of disclosure to the accused's right to make full answer and defence, remembering that disclosure failures have been identified as being one of the root causes of wrongful convictions; an ancillary point is that proper and timely disclosure promotes the accused's right and the public's interest in a trial that concludes within a reasonable time, as well as efficient use of court time and resources. [10] The second point for context is that on every manner of case that involves document disclosure, criminal or civil, a lawyer has important professional obligations to take reasonable steps to promote proper disclosure. In criminal cases, Crown counsel plays a critical role in this respect. The Crown must not simply be a passive conduit for transmission of disclosure material from the police to the accused. The Crown has obligations of its own to seek out and obtain relevant material and to generally superintend the disclosure process. While the police and Crown counsel must work together in order for the Crown to comply with its disclosure obligations, the Crown cannot delegate its lawyers' responsibility to vet material for relevance and privilege. As Ryan J.A. put it in R. v. Arsenault (1994), 153 N.B.R. (2d) 81 at para. 97 (C.A.), in a passage cited with approval in R. v. McNeil, 2009 SCC 3 at para. 49, "[r]elevancy cannot be left to be determined by the uninitiated"; a fortiori, privilege issues cannot be left to be determined by the uninitiated. [11] Returning to the case at bar, based on: (1) the evidence I have heard to this point on the voir dires; (2) the material that has been filed on this application; and, (3) the submissions on this application, I have the impression that there has been a failure on the part of the Crown to properly fulfil its disclosure obligations. I think this failure is rooted in the apparent willingness to allow the RCMP to assume responsibility for decisions that are properly those for Crown counsel to make. It is not so much that the Crown has displayed a dilatory and casual attitude to disclosure but that it has abdicated the important disclosure responsibilities to make decisions as to relevance and privilege. While it is true that the accused also has responsibilities in the disclosure process, and particularly to press for disclosure of relevant material that appears not to have been produced, it seems that defence counsel in this case have been attentive and diligent regarding disclosure, and the Crown does not suggest otherwise. [12] I turn to the subject of disclosure of the RCMP rules respecting document gathering, retention, storage, management, and disclosure. Bearing in mind the Crown's obligation to seek out and obtain relevant material and to superintend the disclosure process, it is not clear to me how the Crown could properly attend to this obligation without knowing the document management rules the police force has been using from time-to-time since the investigation began in 2006. For example, if in this case investigators in the midst of the Mr. Big undercover operation or the taking of the post-arrest statements were communicating with one another by text or BlackBerry messages, it would be important to know what the RCMP protocols were for the retention of these messages so that Crown counsel may make the necessary professional judgment about whether the material they have received from the police seems to be complete or otherwise. [13] The disclosure process is a dynamic one. While the Crown has the lion's share of the responsibility to ensure proper disclosure, the accused is obliged to press for further disclosure in a timely way if he concludes that disclosure is incomplete. Disclosure of the police force's document management rules allows the Crown to carry out its obligations, but also allows the accused the chance to come to his own conclusions about whether disclosure is complete. It must, of course, be borne in mind that counsel for the accused is likely to have a more highly developed sense than Crown counsel as to whether there is a reasonable possibility that a particular type of material or information may assist the accused in the exercise of his right to make full answer and defence. [14] Recalling the critical role that proper and timely disclosure plays in promoting fair trials and avoiding wrongful convictions, as well as in allowing the court's processes to work as they should, I have difficulty understanding why the RCMP is baulking at an order for production of copies of their rules -- all the more so because the evidence and submissions on this application show that some (and perhaps all) of these rules have already been disclosed to the Crown, and through the Crown to the accused. Parenthetically, the Crown made it clear in the course of its submissions that it does not support the RCMP's position against an order for production of their rules. [15] The RCMP's submission is that the application for these rules should be considered using the R. v. O'Connor, [1995] 4 S.C.R. 411, third-party production rubric and that these rules do not meet the test of likely relevance. Mr. Katz referred me to a number of authorities, including R. v. Gill, 2017 BCSC 1026, in support of the proposition that RCMP policy documents are not producible. In Gill, the accused was seeking production of RCMP policy and procedures about the police conduct of undercover operations, including Mr. Big operations and like material. Mr. Justice Bernard held that the application failed the test of likely relevance because it is the actual police conduct that is relevant, and not whether the police followed their own protocols. See also R. v. Pickton, 2005 BCSC 1240 at para. 28, where Mr. Justice Williams said, "[i]nvestigative strategies and tactical information are presumptively not disclosable". [16] The RCMP's submission also referred to the words of Justice Charron in McNeil, at para. 28, where she explained that the "likely relevance" threshold ensures that scarce resources are not squandered on fishing expeditions for irrelevant evidence, and to the definition put forward by Chief Justice Lamer and Justice Sopinka in O'Connor, at para. 22: "likely relevance" is the "reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify". (The emphasis is in the original text.) [17] If the accused were seeking RCMP material on investigative strategies and tactical information, the RCMP's submissions might find the mark, and it is easy to see how counsel for the RCMP may have initially understood the accused's written application as seeking such material. However, at the outset of the hearing of the application Mr. McCullough made it clear that he is seeking the document management protocols and not strategic and tactical material. [18] It is clear that RCMP document management protocols are not logically probative to an issue at trial or the competence of a witness to testify. But given that I conclude that knowledge of the protocols is necessary for the police, the Crown, and the accused to properly carry out their various disclosure obligations, I do not agree that they are the type of documents the Supreme Court of Canada intended to get caught up in O'Connor procedures, including the "likely relevance" test. [19] Likewise, the protocols are not fruits of the investigation but they are important to the disclosure process itself. Say, for instance, certain disclosed material was in coded form and the only way it could be read is using a key or template in the possession of the police force. Or, say that data produced is so voluminous that it can only be meaningfully accessed with the assistance of an index in the possession of the police. Could the police resist production of the key or template or index on the basis that they are not probative of an issue at trial and are not fruits of the investigation? Surely not. These analogies may be far from exacting, but I see the document management protocols as similar in that their production is necessary to the proper working of the disclosure process. In that sense, the protocols constitute "material pertaining to its investigation of the accused", and as such ought to be disclosed by the police without prompting (McNeil, at para. 14). [20] It is clear from cases such as McNeil, wherein it was held that the Crown must make disclosure of information relating to police misconduct by officers who played an important role in the investigation, even where the misconduct did not relate to that particular investigation, that first-party disclosure is not confined to the "fruits of the investigation". See also the thorough discussion by Paciocco J., as he then was, in R. v. Fitts, 2015 ONCJ 262, at paras. 28-37. [21] As was explicated in the letter sent by Mr. McCullough to Crown counsel and detailed in his submissions, there are instances in this case where the RCMP has not provided Crown counsel with important information. Perhaps the leading example is the apparent failure to disclose the fact that in the midst of the Mr. Big undercover operation the RCMP made an unauthorized (albeit apparently unintentional) recording of a 17‑minute telephone call between the accused and a person unconnected with the undercover operation, and that the police thereafter decided (apparently after taking legal advice from a Crown lawyer not attached to the case at bar) to listen to that recording, and that they learned that the accused discussed matters pertaining to his involvement in the sham criminal organization constructed by the undercover operators. [22] At this stage of proceedings, the Court's response to the disclosure shortcomings must be orders that promote proper disclosure by the RCMP to the Crown and the full participation of the Crown in the disclosure process. Further, the Court's response must allow defence counsel to be able to comply with their responsibilities to follow up and ensure proper disclosure is made. [23] Accordingly, I order the Crown to do the following: (a) provide a disclosure hard drive that is organized, searchable and reasonably indexed; (b) produce a list of all investigative materials that are thought by the police to have been in their possession or control but have not been located; with respect to each item on the list, the Crown shall provide an explanation as to how the item came to be lost or destroyed, as well as any steps taken to locate or recover the item; (c) provide the affidavit of Staff Sergeant Mainman and each police officer that has, from time to time since the date of the accused's arrest, been assigned primary responsibility for disclosure, attesting to their belief that all feasible efforts have been made to provide complete disclosure to the Crown of all material pertaining to the investigation of Ms. Morrey's death; (d) undertake the process of reviewing the previously vetted disclosure material to ensure that the vetting for relevance, privacy or privilege has been proper; (e) provide an itemized list of vetted material, accompanied by a description of the non-disclosed material that is sufficient to allow the accused to decide whether to challenge the Crown's position; (f) provide a list of the material that the police have treated as holdback evidence; (g) provide a list of all persons that the police know or suspect have had access to the holdback evidence; (h) provide all autopsy notes and records including the clinical notes and records of the pathologist, Dr. Lee; (i) provide the clinical notes and records of anyone that Dr. Lee consulted with before coming to his opinion on cause of death; (j) provide copies of any electronic communication between Dr. Lee and police officers or other persons he consulted with before coming to his opinion on cause of death; (k) provide the names of any individuals present at the autopsy other than Dr. Lee and the police officers; (l) provide a list of all materials that the Port Alberni RCMP detachment or VIIMCU burned to disclosure discs; (m) provide a complete copy of the holdback envelope removed from the MCU safe on 31 May 2007, and provide an opportunity for defence counsel to review the original envelope and contents; (n) provide an opportunity for the defence counsel to review the boxes of material from the Port Alberni detachment and VIIMCU; (o) provide all notes and all electronic communications of all police officers involved in this investigation, subject to vetting for clear irrelevance or privilege by Crown counsel; (p) provide all material related in any way to any unauthorized intercepted communications of the accused, subject to vetting for privilege by Crown counsel; for this purpose, Crown counsel have leave to communicate in writing with Sergeant Popat (who is in the midst of cross-examination) to obtain the names of all persons aware of the interception(s); and (q) provide a copy of RCMP business rules governing the Port Alberni detachment investigators, the VIIMCU investigators, the Surrey MCU investigators and the undercover operators, during the material periods in which each of these units was involved in the investigation of Ms. Morrey's death respecting the collection, retention, production or disclosure of investigative material. "Thompson J."