R. v. Jancey

2016 BCSC 2051 R. v. Jancey IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Jancey, 2016 BCSC 2051 Date: 20161017 Docket: 165185-2, 165185-3, 165185-5, 165185-6 165185-7, 165185-8, 165185-9 Registry: Victoria Regina v. Adrian Michael Jancey Before: The Honourable Mr. Justice Bracken Oral Reasons for Judgment (In Chambers) Counsel for Crown: S. Fudge Ad Hoc Crown re Application 8: N. Mitha Ad Hoc Crown re Application 9: A. D. Srivastava Counsel for Accused: D. Berntsen Place and Date of Trial/Hearing: Victoria, B.C. October 17, 2016 Place and Date of Judgment: Victoria, B.C. October 17, 2016 [1] THE COURT: This is an application by Constable Archibald of an organization known as PRIMEcorp., and also an individual by the name of Sandra McKinnon who is a long time civilian employee of the Victoria Police Department. Both applications seek to quash subpoenas that were issued to them at the request of counsel for the defence. The application is made on the basis that neither Ms. McKinnon nor Mr. Archibald has any likely material evidence to provide to the court. [2] The section that governs is s. 698(2) of the Criminal Code, which states that: Where it is made to appear that a person who is likely to give material evidence (a) will not attend in response to a subpoena if a subpoena is issued, or (b) is evading service ... , [the] justice [may] require the attendance ... [3] Clearly, the provision requires that an individual who is subpoenaed must be subpoenaed on the basis that there is some likelihood that that individual will have material evidence to provide to the court. [4] I will deal first with the issue with respect to Constable Archibald. Constable Archibald describes his job as a client services manager for PRIMEcorp and PRIMEcorp is an organization that is set up to manage and deal with police information systems. [5] The Police Act requires that all police agencies implement and use a common records management system and that is known by the acronym PRIME. The purpose of PRIMEcorp is to provide funding and management of the record system. It is an independent body and a neutral service provider. PRIME is described by investigators as the "primary receptacle for information related to a specific policing event". [6] Constable Archibald said in his affidavit that he does not access any case notes or investigative material and, in fact, as a policy matter he is prohibited from doing so unless he has the express permission of the police agency which has authored or created the information. The data that Constable Archibald can see are the dates and times of any entry, when any changes were made, but not the content of the investigation. PRIMEcorp has no ability to modify or alter any of the material that is contained within the system. It is also clear from Constable Archibald's affidavit that the content of the material is owned by the police agency or organization that is conducting the investigation. In this case it is the Victoria Police Department. [7] A fictitious example of the kind of information that is available through PRIMEcorp, and to Constable Archibald, or someone in his position, was created and attached as an exhibit to Constable Archibald's affidavit. That document clearly shows that there is really nothing of material relevance that could be taken from that document and really nothing of interest other than to the administrators of a records management system. [8] The officer has no access to any of the relevant information connected with this police investigation, he has no access to any of the case notes, and as he says in his affidavit he has absolutely no personal information with respect to the files connected to the material. [9] For the purposes of this application Constable Archibald asked permission from the Victoria Police Department to copy what he had available to him to ensure that the material was available for the court on this application. The Victoria Police Department said no, indicating that they would have counsel here, and indeed do have counsel, and that that counsel would make available all of the relevant material in the event the court orders it to be produced. [10] With respect to the law, the governing law is perhaps best stated in the decision of R. v. Violette, 2008 BCSC 1142, a decision of Mr. Justice Romilly. At para. 59 of that decision Mr. Justice Romilly stated that: Notably, the test for the issuance of a subpoena is whether the witness is likely to give material evidence: R. v. Harris (1994), 74 O.A.C. 398, 93 C.C.C. (3d) 478 at para. 5. It is not sufficient for the party who seeks to subpoena the witness to simply state that the witness might or may have material evidence. Some responsibility exists on the part of the issuing judge to determine that the witness is likely to give material evidence, and a subpoena may be quashed if the witness is not likely to give such evidence [11] Clearly, the courts have the authority to quash a subpoena. That is stated in the decision of R. v. Gingras, [1992] 71 C.C.C. (3d) 53 and 120 A.R. 300 (C.A.). A similar decision has been rendered in British Columbia in the decision of R. v. Blais, 2008 BCCA 389. [12] In this case, I am satisfied that PRIMEcorp is merely a neutral management agency, which does not have any material evidence to give with respect to police reports, case notes, or other information. It does not create and archive all of the case notes in a way that is available on a day-to-day basis to any employee of PRIMEcorp, and the information is the property of, or at least in the control of, the police agency that creates it. Thus, PRIMEcorp is not the appropriate source of information, and should not be subpoenaed as an entity or through its employees. The subpoena that was issued to Constable Archibald is quashed. [13] Turning to the subpoena with respect to Sandra McKinnon. Ms. McKinnon has brought the notes to court, and I am advised by the counsel for Victoria Police Department, the case notes that exist in PRIME records, related to these two files will be available and will be produced if ordered. [14] Ms. McKinnon is in charge of the administration of records at the Victoria Police Department. She also deals with the training of individual officers and others who deal with the records management system and she is the point of liaison between the Victoria Police Department and PRIMEcorp. It is to be emphasized that Ms. McKinnon is not a police officer, nor has she ever been one. She has been employed as a civilian employee of the Victoria Police Department for something over 28 years, and she is engaged in administration and management only and has no investigative role. She says that the user generated notes can be manually entered as text by an investigating officer. They cannot be deleted and they can be modified only by the originating user. The record of any modification that is made by the user is part of the records kept in PRIMEcorp. She also says that the Victoria Police Department does not typically have any need to access user generated case notes. It is certainly a facility that can be used, but typically Victoria Police Department investigators, I gather, use a different system for maintaining case notes and file records of an investigation in a way different than PRIMEcorp. [15] PRIMEcorp records are not typically included as part of any disclosure package that is sent to Crown counsel upon a disclosure request and it is not the practice of Victoria Police Department to author case notes and save them to the PRIME system. [16] It is not clear exactly what can be said by Ms. McKinnon, but it does seem to me that she can give evidence on how the system is used by investigators at the Victoria Police Department. She may have some evidence that is likely relevant to how the records are kept and maintained and that may be of some value to the O'Connor application that is to follow. [17] Therefore, I am not prepared to quash the subpoena issued to Ms. McKinnon, but I am prepared to strike from the subpoena the requirement for her to bring any user manuals related to the operation and training directives regarding the use and operation of PRIME by the Victoria Police Department. In my view, those manuals can have no useful purpose and have no likely relevance to the entry and retention of any case notes related to these matters. Therefore, with that modification the application to quash her subpoena is dismissed and we can proceed with the O'Connor application. "J. K. Bracken, J." The Honourable Mr. Justice Bracken