R. v. McKinnon

2014 BCSC 399 R. v. McKinnon

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McKinnon, 2014 BCSC 399 Date: 20140226 Docket: 26074 Registry: Vancouver Regina v. Troy Dax McKinnon, John Ross Powers, Cody Alexander Sleigh Derek James Stephens, and Van Van Vu Restriction on publication: Pursuant to s. 486.5(1)(9) Inherent Jurisdiction Before: The Honourable Madam Justice Fisher Oral Ruling on Voir Dire #9 Disclosure of PRIME Records Counsel for the Crown: M.J. Sheardown D.Y.D. Sim Counsel for the Accused McKinnon: D.P. Lawrence Counsel for the Accused Powers: N.E. Adams Counsel for the Accused Sleigh: M.T.K. Berry Counsel for the Accused Stephens: J.J. Saulnier Counsel for the Accused Vu: B.V. Bagnall Place and Date of Trial/Hearing: Vancouver, B.C. February 26, 2014 Place and Date of Judgment: Vancouver, B.C. February 26, 2014 [1] THE COURT: The defence seeks disclosure by the Crown of information contained in police PRIME records relating to the alleged criminal activities of Eric Low, the victim and primary Crown civilian witness in this case. [2] This application is being made in the middle of Mr. Low's testimony at trial. He gave evidence in chief that he works for a family-owned restaurant in Vancouver and acknowledged a criminal record that includes a June 2008 conviction for possession for the purpose of trafficking cocaine arising from an incident in July of 2006. In cross-examination, he was

questioned about whether the incident on November 23, 2011 had something to do with a drug debt and he denied being a drug dealer, saying that he had stopped doing this after his first charge in 2006 when he got into the family business. Mr. Low was also questioned about an incident on April 23, 2008, when he was stopped in a vehicle that was found to have two kilos of cocaine hidden in the trunk. He was not charged. He testified that the vehicle did not belong to him and he was not involved in the drug business at that time. [3] Ms. Adams was permitted to adjourn her cross-examination of Mr. Low in order to seek further disclosure from the Crown contained in the PRIME files to which I have referred. She seeks information relating to all police activity and contacts with Mr. Low, or anything to do with Mr. Low's credibility. [4] In the E-Navigate investigation that included this matter, Constable Bazett reviewed 63 PRIME entries in relation to Mr. Low up to December 1, 2011. Of those, he found 17 to be of interest. Summaries of those were prepared and vetted copies were disclosed to the defence. Most of these have now been unvetted and the Crown resists disclosure of about seven as not relevant (I think that might have gone down to six), and one due to informer privilege. The Crown has also disclosed extracts of the records relating to the April 23, 2008 incident. Exhibit 1

marked in this voir dire contains the records originally disclosed including the vetted Task Detail Report of the 17 files. Exhibit 2 is the largely unvetted Task Detail Report. [5] As a result of inquiries made by the defence, Crown counsel has now obtained copies of the 63 PRIME records that were reviewed by the police as well as four additional records postdating December 1, 2011. [6] Of the information considered to be of interest by Constable Bazett, the Crown has disclosed or is now prepared to disclose the following PRIME files, which I will describe to put some context into this: 1. Vancouver Police file related to the Marine Unit checking three boats in the area of Bedwell Bay on August 27, 2011. The majority of males present among 25 people on board were found to have numerous drug and gang associations. The names of the registered owners of the boats and the males present have been vetted.

2. Vancouver Police file related to suspected money laundering arising from an incident on February 15, 2011 at Vancouver International Airport when Mr. Low was found to have over $10,000 cash on departing from Vancouver.

3. Vancouver Police file related to Mr. Low receiving a 30-day immediate suspension for impaired driving. The vehicle he was driving was registered to a third party identified by police as the father of a suspect multi-kilogram cocaine dealer. The name of the registered owner has been vetted as not relevant and other information has been vetted on the basis of informer privilege.

4. Vancouver Police file related to a 24-hour suspension imposed on Mr. Low on March 18, 2008. The identity of the passenger in the vehicle has been vetted.

5. A similar police file related to a 24-hour suspension imposed on Mr. Low on January 11, 2008, and again, the identity of the passenger in the vehicle has been vetted.

6. Vancouver Police file related to a vehicle stop on November 22, 2007, where police identified Mr. Low, the driver, and the passengers as having a history of association to drugs and gangs. The identities of the passengers have been vetted.

7. Vancouver Police file related to a bag of $53,520 in cash being left at a restaurant in Vancouver on June 28, 2007 by members of Mr. Low's family and possibly Mr. Low. The police suspected that the money was proceeds of crime.

8. New Westminster Police file related to the incident on July 19, 2006, which gave rise to Mr. Low's conviction for possession for the purpose of trafficking.

9. A CFSEU file related to the incident on April 23, 2008, where Mr. Low was found in possession of two kilograms of cocaine.

10. Vancouver Police file related to members of the United Gang Task Force attending at a nightclub in Vancouver on January 5, 2008, for a report of a fight, and a vehicle driven by Mr. Low was stopped as it departed from the area. Mr. Low and the passenger in the vehicle were determined not to have been connected to the fight. [7] As I have indicated, in general the Crown vetted the names of third parties and portions of the records on the basis that the information is not relevant. [8] The Crown has refused to disclose the following six PRIME files as being not relevant: 1. Burnaby RCMP file related to a street check on August 2, 2011, where Mr. Low and another were stopped by police outside Mr. Low's Sidley Street address and questioned about a robbery in the area. They were ruled out as being involved, but the other individual was identified by police as having associations to the Independent Soldiers gang.

2. Vancouver Police file related to an incident on May 8, 2011, where Mr. Low was checked after he ran and hid from police in the bathroom of a restaurant. He was found to be intoxicated and in breach of a no-alcohol condition.

3. Richmond RCMP file related to an incident on November 8, 2010, where police checked a massage parlour and Mr. Low and another individual were found to be eating together in a private room.

4. Vancouver Police file related to an incident in a taxi on September 2, 2010, where Mr. Low was involved in a domestic assault with his wife.

5. Richmond RCMP file related to an incident on August 23, 2010, where police checked a massage parlour and Mr. Low and another individual were found inside the business.

6. Vancouver Police file related to an assault of a friend of Mr. Low on June 26, 2009, after an altercation in a nightclub. [9] The Crown has also refused disclosure of a Port Moody Police file with intelligence about a high-level drug dealer and Mr. Low's association with an individual on the basis of informer privilege. [10] Of the remaining files reviewed by Constable Bazett, two have already been disclosed, three relate to matters when Mr. Low was a youth and are not being sought by the defence, and one relates to Mr. Low's attendance for a DNA sample and is also not being sought by the defence. Of the rest, the Crown is now prepared to disclose all records relating to motor vehicle stops, which are about 28 files, a file relating to a domestic assault on October 4, 2009, where Mr. Low is alleged to have given a false name, and a file related to an incident on May 5, 2013, where Mr. Low was escorted out of a restaurant by the Gang Crime Unit. [11] The Crown continues to resist disclosure of all or portions of the remaining files on the basis that the information is not relevant. These files relate to a domestic dispute with Mr. Low's parents on July 31, 2003; "a verbal domestic dispute" on June 4, 2006; a domestic assault in a taxi on September 12, 2010, which is the same as one of the files retained by Constable Bazett; an incident on March 20, 2010, when Mr. Low is

alleged to have punched a bouncer outside a nightclub; an incident on May 24, 2005, where Mr. Low was involved in a melee outside a nightclub; and portions of a file related to a home invasion of the Low residence on Sidley Street on April 7, 2013. Exhibit 3 is a list of these files along with the Crown's basis for initially resisting disclosure. The Crown's duty to disclose under Stinchcombe [12] All counsel addressed this application under the Stinchcombe regime (R v. Stinchcombe,1991 SCC 45). [13] Under Stinchcombe, the Crown's obligation is to disclose all relevant information in its possession relating to the investigation against the accused. Relevance is broadly defined and includes that in respect of which there is a reasonable possibility that it may assist the accused in making full answer and defence. The key is whether the information could reasonably be used by the defence either in meeting the Crown's case, advancing a defence, or otherwise making a decision that may affect the conduct of the defence. The Crown is to take a generous and inclusive approach to disclosure and must justify non-disclosure as clearly irrelevant or subject to privilege. The scope of cross-examination [14] Because this issue arose during the cross-examination of Mr. Low, Ms. Adams stressed the importance of the principles governing the scope and range of cross-examination of a Crown

witness. These principles are well known. Generally, a witness is subject to cross-examination with respect to matters that might affect his credibility and this will include prior convictions, the facts underlying prior convictions, and misconduct or discreditable behaviour that has not resulted in a charge or a conviction (see R v. Pickton, 2007 BCSC 718 at paras. 16, 17, 22). [15] These parameters do not define relevance for the purposes of disclosure, but they do inform the analysis (Pickton at para. 15). In particular, defence counsel must have a good-faith basis to pose questions in cross-examination (as noted in R v. Lyttle, 2004 SCC 5 at paras. 47-48), and the basis for many questions will come from information disclosed by the Crown. Relevance and credibility [16] In the context of a challenge to credibility of a key witness, information that may be useful to the defence includes information which can be used to probe the witness' character (Pickton, para.23). However, this cannot be cast in broad terms that bear little or no relationship to the nature of the witness' evidence in the context of the trial. [17] In this case, Mr. Low's evidence forms only a part of the Crown's case against the accused and his evidence about what happened on November 23, 2011 will be considered along with a body of other evidence to be adduced by the Crown. However, he is the only Crown

witness who can testify about his exchange with Mr. Powers and Mr. Sleigh in the parking lot and inside the van on that day. This evidence is clearly a critical piece in assessing how the events unfolded. [18] I do not consider Mr. Low's credibility to be as critical to the Crown's case in the way the credibility of the witness in Pickton or the four eyewitnesses in R v. Whitebear (2012), 104 WCB (2d) 647 (Alta QB) were critical. In Pickton, the witness was to describe highly inculpatory statements allegedly made to him by the accused which, if believed, was characterized by the judge as going a long way towards bringing about a conviction. In Whitebear, the case against the accused was largely the testimony of four witnesses who belonged to a rival gang from that of the accused. The guilt or innocence of the accused in those cases largely turned on the credibility of the witnesses about whom disclosure was sought. Here, the guilt or innocence of Mr. McKinnon, Mr. Powers, Mr. Sleigh, Mr. Stephens and Mr. Vu will turn in part on the credibility of Mr. Low. Therefore, the general parameters of disclosure cannot be defined too broadly as to include any information that bears on Mr. Low's credibility. [19] While the Crown was aware of some of this information before trial, the issue of Mr. Low's credibility was crystalized during cross-examination when he denied any involvement in

drug dealing or gangs. I agree with the defence that this disclosure ought to have been made sooner, as I did not perceive this to be a surprising turn of events. [20] In any event, the primary issue relating to Mr. Low's credibility is his alleged connection to a criminal lifestyle involving drug trafficking, gangs, and possibly violence. This must form the basis for a determination of relevance for the purposes of disclosure. This does not mean that files that do not appear on their face to be related to such allegations are not relevant. All of the files may have a connection to Mr. Low's alleged criminal lifestyle and, importantly, the Crown has not convinced me that the information in any of these files is clearly irrelevant for the purposes of disclosure. While I had some concerns about the relevance of the domestic assault files, the Crown has not satisfied me that these are clearly irrelevant to Mr. Low's alleged criminal lifestyle, which appears to include some propensity for violence. [21] It is incumbent on the Crown to take a generous and inclusive approach and to err on the side of disclosure unless there are other considerations such as informer privilege or third-party privacy that must be balanced with the accused's right to make full answer and defence. I am not satisfied that they did take this approach. They placed too much weight on their own view of the

case rather than what may be relevant to the defence. [22] So, on this basis, I direct the Crown to make further disclosure of all of the files referred to in Exhibits 2 and 3. [23] With respect to vetting information, I agree with the submissions of the defence that the Crown has not provided an adequate explanation for the redactions it has made for most of them. A bare statement that information is not relevant or is administrative is not sufficient. It is too late at this point to permit the Crown to go through this process again. [24] However, the court has to be concerned about the privacy interests of third parties. Those of particular interest to the defence are the third parties with whom Mr. Low associates and, more particularly, those of whom the police believe are linked to drug dealing or gangs. I understand that this information is key to the defence having the tools to conduct a focussed cross-examination and, for that reason, I will direct that the Crown provide the records unvetted in respect of the names of all individuals referred to in the records with whom Mr. Low is found to be associated, excluding all other personal information about these individuals. To protect their privacy, I agree with Mr. Bagnall's suggestion and I will also order a ban on the publication of any of those names, under my inherent jurisdiction to control a fair trial process. It

cannot be forgotten that we are dealing with a wide range of untested information, much of which is police suspicion and belief, and the allegations related to these third parties are serious. [25] I want to make it clear that I make no direction on issues related to informer privilege, which the Crown has claimed in respect of some of the information in the records. There were no submissions made challenging that issue in the application I have heard today. [26] Any questions? [27] MR. LAWRENCE: In terms of Your Ladyship's order that all other personal information may be excluded or vetted, to be clear, that we are talking about date of birth -- [28] THE COURT: Yes. [29] MR. LAWRENCE: -- addresses, telephone numbers? [30] THE COURT: I think what Ms. Adams called tombstone information. [31] MR. LAWRENCE: Tombstone, that is right. [32] THE COURT: Yes. [33] MR. LAWRENCE: Yes, thank you. [34] THE COURT: It is just the name that they are supposed to unvet but information that discloses anything personal about them can continue to be vetted. [35] MR. LAWRENCE: But that would not stretch to include, for example, gang affiliations -- [36] THE COURT: No. [37] MR. LAWRENCE: -- other individuals that -- known associates, things of that nature? [38] THE COURT: Names are -- all the names should be there. [39] MR. LAWRENCE: Yes, thank you. [40] MS. ADAMS: If I may just address the ones with

informant privilege that my friend has claimed privilege with respect to, I did not say, "Perhaps you should be invited to make further inquiries and advise us with respect to that," and we could return to court if there was an issue because he was still -- yesterday he had not -- [41] THE COURT: Yes. [42] MS. ADAMS: -- satisfied himself. [43] THE COURT: Well, yes, fair enough. [44] MS. ADAMS: Thank you. [45] THE COURT: Also I do not want to trample on Crown's discretion overly. I have not heard anything that justifies the redactions and I have not seen what they are, but, as you are going through them, if you have any really serious concerns that you want to raise with counsel, I do not want to interfere with your discretion to do so, but you must provide a cogent explanation. But generally speaking, it seems to me that even if it is administrative material, it may or may not be relevant, I have no idea, but there is no basis from what I have heard in this application to determine that it is clearly irrelevant. It does not sound like it is harmful for disclosure purposes at this stage, in any event, but if Crown has any really serious problems or issues arising from my direction, you can certainly bring that back and raise it if it comes up, but I expect counsel will be able to sort that out. "Fisher J."