R. v. Montgomery

2014 BCSC 223 R. v. Montgomery

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Montgomery, 2014 BCSC 223 Date: 20140110 Docket: 73426 Registry: Kelowna Regina v. Clifford Roger Montgomery, Tariq Mohammed Aslam and Salvador Ascencio-Chavez Before: The Honourable Madam Justice Beames Oral Ruling on Application for Stay of Proceedings or Mistrial Counsel for the Crown: C.W. Greenwood H. Magnin Counsel for the Accused, C.R. Montgomery: N.L. Cobb E. Lewis Counsel for the Accused, T.M. Aslam: J.W. Hogan J.D, Banks Counsel for the Accused, S. Ascencio‑Chavez: K. Molle Place and Date of Trial/Hearing: Kelowna, B.C. November 28, 29 and December 6, 2013 Place and Date of Judgment: Kelowna, B.C. January 10, 2014 [1] THE COURT: Clifford Montgomery, Tariq Aslam, and Salvador Ascencio-Chavez are charged with possession of cocaine for the purpose of trafficking, conspiracy to import cocaine, and conspiracy to traffic in cocaine. The offences are alleged to have occurred in 2010. The voir dires commenced April 2, 2013, and completed on May 7, 2013. The trial proper commenced May 8, 2013, and continued until Friday, June 14, 2013, on which day Crown called and examined in chief the anticipated final Crown witness. [2] On June 13, 2013, I had allowed Crown's application to amend the conspiracy to import count on the indictment, which is Count 2, to change the date range "from September 21 to October 4, 2010", to

"from June 23 to October 4 2010". I gave my reasons for allowing the amendment on June 17, 2013. On June 19, 2013, on the application of the accused, I granted an adjournment of the trial in part to allow defence counsel time to bring applications arising from the amendment and in part because Mr. Ascencio-Chavez expressed an intention to terminate the retainer of his then counsel and to retain new counsel. [3] On August 22, 2013, a date directed by me, defence counsel, including the newly retained counsel for Mr. Ascencio-Chavez, filed notices of application seeking various heads of relief said to arise from the amendment. One further notice of application was filed shortly thereafter. Between November 25 and December 6, 2013, I heard submissions with regard to the first three applications, namely, an application for a stay based on abuse of process or, alternatively, a mistrial; an application brought by Mr. Ascencio-Chavez for leave to withdraw or rescind admissions made by him during the trial; and an application for disclosure of informant information. [4] I will deal first with the stay/mistrial application. The principal foundation for the application is that the Crown failed to disclose, in a timely fashion, information the RCMP obtained with respect to Fernando Diaz, an alleged co-conspirator named in Count 2 of the indictment. [5] The background with regard to the

disclosure issue is as follows. Fernando Diaz was identified in the early days of the investigation of this matter as a person involved in the importation of a fruit grinder into Canada, which fruit grinder contained cocaine. Mr. Diaz was a friend of Gavril Szucs, whose company, Gaby Enterprises, was the named consignee of the machine and on whom the RCMP initially focused their investigation. [6] According to a Report to Crown Counsel provided to defence counsel in January 2011 as part of the initial disclosure, Mr. Diaz had been identified by the RCMP during the investigation, including through telephone intercepts of Mr. Szucs' telephone calls, as a co-conspirator. The Report to Crown Counsel said: Police believe that Diaz is an American citizen currently residing in the United States. Investigative efforts are still ongoing in an attempt to locate and interview Diaz. [7] Also included in the same disclosure package were investigator notes indicating that the RCMP were dealing with American authorities and particularly a DEA investigator in Phoenix, Arizona, in an effort to locate Mr. Diaz, and investigator notes containing significant amounts of information about Mr. Diaz including known addresses, telephone numbers, date of birth, driver's licence number, physical descriptors, and prior employment. Also included in the first disclosure package was a document entitled,

"Task 212", the contents of which were completely redacted and on which task report it was noted, "Disclosure of this task delayed". [8] In January 2013, Crown provided all defence counsel with a vetted copy of Task 212. The task report sets out the task as being: generated to document information received from the US Drug Enforcement Administration in regard to Fernando Diaz. [9] The vetted task report summarized information sent to and received from the U.S. DEA and included a series of emails between an RCMP officer and a DEA Phoenix Special Agent. The vetted task report set out that as of November 26, 2010, there had been a meeting with Mr. Diaz and that another meeting was to take place the following Thursday. The DEA agent asked the RCMP whether there were any specific questions they wanted to ask and whether the RCMP wanted to speak to Mr. Diaz themselves. [10] The further meeting with Mr. Diaz took place on December 2, 2010, and the Phoenix DEA agent provided the RCMP with a bullet point summary of the interview that same day. Further details of the interview were relayed by the DEA officer to the RCMP on December 8, 2010, and were similarly set out in the vetted Task 212 report provided to defence counsel in January 2013. [11] The letter from Crown which attached the vetted Task 212 had other attachments as well. With regard to Task 212, the letter said: 6. This was

described as delayed disclosure in the original disclosure package. You will see from this report an indication of Mr. Diaz' willingness to speak with the RCMP (2010.12.02 entry, 21:53). I can advise you however, that the RCMP did not meet with or obtain a statement from Mr. Diaz. [12] After receipt of the vetted Task 212, defence counsel made no inquiries or requests of Crown with regard to the vetting or with regard to "the report" which the DEA agent said would be prepared with regard to the interview of Mr. Diaz, nor with regard to anything else concerning Mr. Diaz at any time before the trial adjourned in June 2013, nor did defence counsel make any applications nor raise any issues with regard to disclosure concerning Mr. Diaz with me during any of the case management or pre‑trial conferences conducted in this matter or during the voir dires or the trial prior to the adjournment. [13] On November 5, 2013, counsel for Mr. Ascencio-Chavez wrote to Crown requesting inter alia an unredacted copy of Task 212, any materials provided by the DEA, and "a copy of the December 2, 2010 interview of Diaz", and inquiring whether a meeting had ever taken place between Diaz and any Canadian law enforcement officer pertaining to the importation of the fruit grinder. On that same date, counsel for Mr. Montgomery wrote to inquire whether the redactions in the task report were still

appropriate and, if so, for an explanation of the basis for the redactions. The letter continued: At page 14 of Task 212 it clearly states the interview of Diaz will be put into a report. We write to request a copy of that report now along with full disclosure of any recordings, notes or other material generated as a result of this interview undertaken at the request of the RCMP. There is also an indication that Diaz is willing to speak to the RCMP. Did this occur? If it did we require full disclosure of any and all interactions between Diaz and the RCMP or anyone acting on their behalf. [14] Crown replied to those letters on November 7, 2013, indicating that the redactions to Task 212 were done in consultation with and at the request of police, and that the Crown had contacted the police to ascertain if the redactions were still required. Crown also indicated that the request for the report referred to on page 14 of the vetted Task 212 and the request for another document would be followed up on. Crown also advised that no meeting ever took place between the RCMP and Mr. Diaz and that the RCMP were not in possession of a transcript, notes from U.S. investigators, or any audio recordings. Finally, Crown advised that the South East District Drug Section ("SEDDS") was not in contact with Mr. Diaz and that Mr. Diaz's current whereabouts are unknown. [15] On November 14, 2013, a

further copy of Task 212 was provided by Crown to all defence counsel with codes on the redactions along with two appendices which detailed the nature of the then remaining redactions, and the two documents referred to in Task 212 were also provided. The document referred to at page 14 of Task 212 as a report of the interview of Mr. Diaz is, in fact, a letter to Corporal Johnston of the SEDDS office, which letter is dated December 21, 2009, which presumably reflects a clerical error and should read 2010, from the office of the Legal Attaché of the Consulate of the United States of America. That letter, as provided to defence counsel, contains some vetting and an appendix describing the vetted materials, which indicated that "sensitive information regarding Mr. Diaz and addresses associated to Mr. Diaz" were amongst the vetted material. [16] Further clarification and documents were sought on November 19, 2013, by counsel for Mr. Ascencio-Chavez and provided by Crown on November 21, 2013. On November 22, 2013, counsel for Mr. Montgomery wrote to Crown disagreeing with the vetting and giving notice that they would be moving for an order requiring disclosure of any and all information that might assist in locating Mr. Diaz. [17] The legal principles which apply to Crown's disclosure obligations, to applications for stays based on abuse of process and to mistrials, are not in

dispute. The principles were fairly summarized by counsel in their submissions and I will not exhaustively review them. What is in dispute is the application of those principles to the facts in this case. [18] Crown is obligated to disclose to the defence all relevant information in its possession subject to the reviewable discretion of the Crown (see, for example, R. v. Stinchcombe, [1991] S.C.J. No. 83 at para. 29). What is relevant is information that may reasonably be useful to the defence in making full answer and defence: R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Chaplin, [1995] 1 S.C.R. 727. [19] Crown has the discretion to delay disclosure: 16 The prosecutor must retain a degree of discretion in respect of these matters. The discretion, which will be subject to review, should extend to such matters as excluding what is clearly irrelevant, withholding the identity of persons to protect them from harassment or injury, or to enforce the privilege relating to informers. The discretion would also extend to the timing of disclosure in order to complete an investigation. 20 As indicated earlier, however, this obligation to disclose is not absolute. It is subject to the discretion of counsel for the Crown. This discretion extends both to the withholding of information and to the timing of disclosure. For example, counsel for the Crown has a duty to respect the rules of privilege.

In the case of informers the Crown has a duty to protect their identity. In some cases serious prejudice or even harm may result to a person who has supplied evidence or information to the investigation. While it is a harsh reality of justice that ultimately any person with relevant evidence must appear to testify, the discretion extends to the timing and manner of disclosure in such circumstances. A discretion must also be exercised with respect to the relevance of information. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant. The experience to be gained from the civil side of the practice is that counsel, as officers of the court and acting responsibly, can be relied upon not to withhold pertinent information. Transgressions with respect to this duty constitute a very serious breach of legal ethics. The initial obligation to separate "the wheat from the chaff" must therefore rest with Crown counsel. There may also be situations in which early disclosure may impede completion of an investigation. Delayed disclosure on this account is not to be encouraged and should be rare. Completion of the investigation before proceeding with the prosecution of a charge or charges is very much within the control of the Crown. Nevertheless, it is not always possible to predict events which may require an investigation to be re-opened and the

Crown must have some discretion to delay disclosure in these circumstances. 21 The discretion of Crown counsel is, however, reviewable by the trial judge. Counsel for the defence can initiate a review when an issue arises with respect to the exercise of the Crown's discretion. On a review the Crown must justify its refusal to disclose. Inasmuch as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule. (R. v. Stinchcombe) [20] Where there has been a failure to disclose, a stay will be the appropriate remedy only where the accused establishes on a balance of probabilities that the right to make full answer and defence has been prejudiced and that no other remedy is reasonably capable of removing the prejudice: R. v. O'Connor, [1995] S.C.J. No. 98 at paras. 74-77. [21] A mistrial may also be an appropriate remedy for non-disclosure and, in that regard: 74 The common theme running through this case law is the test of whether there is a [translation] "real danger" of prejudice to the accused or danger of a miscarriage of justice 75 In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of

particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice. (R. v. Burke, 2002 SCC 55) [22] The Court of Appeal in R. v. Lawson, 1991 B.C.J. No. 2197 quoted with approval the following said by trial judge: In the course of considering the authorities given to me by counsel, I have had to examine cases of stays of proceedings, mistrials, and of abuse of process which are all in one way or another closely related to what I would call the requirements of fundamental justice as outlined in the Charter. There is one common denominator: all these cases say that these powers are to be exercised only in the clearest of cases. It is easy to see why this is. The remedy contemplates what I will call "a fatal wounding of the trial process", a wounding to the administration of justice which cannot be cured by remedial measures. [23] When considering the impact of non-disclosure on the fairness of the trial process, the Supreme Court of Canada in R. v. Dixon, [1998] 1 S.C.R. 244 said at 265: 37 ... defence counsel's diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in

determining whether the Crown's non-disclosure affected the fairness of the trial process. In Stinchcombe, supra, at p. 341, defence counsel's duty to be duly diligent was described in this way: Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v. The Queen, [1976] 1 S.C.R.

786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered. The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure. This was aptly stated by the British Columbia Court of Appeal in R. v. Bramwell (1996), 106 C.C.C. (3d) 365 (aff'd [1996] 3 S.C.R. 1126), at p. 374: . . . the disclosure process is one which engages both the Crown and the defence. It is not one in which defence counsel has no role to play except as passive receiver of information. The goal of the disclosure process is to ensure that the accused is not denied a fair trial. To that end, Crown counsel must disclose everything in its possession which is not clearly irrelevant to the defence, but the defence must also play its part by diligently pursuing disclosure from Crown counsel in a timely manner. Further, where,

as here, defence counsel makes a tactical decision not to pursue disclosure of certain documents, the court will generally be unsympathetic to a plea that full disclosure of those documents was not made. See also R. v. S.E.S. (1992), 100 Sask. R. 110 (C.A.), at p. 121. [24] I turn to an application of the principles to the facts in this case. [25] I am satisfied, based on the content of Task 212 and the content of the letter from the Legal Attaché and particularly those portions summarizing Mr. Diaz's description of threats made to him, that Crown was entitled to delay disclosure of both documents, at least at the time the first disclosure package was provided in January 2011. It is clear that the Report to Crown Counsel provided at that time was incorrect when it stated that the location of Mr. Diaz was not yet known. However, the initial disclosure package did provide a significant amount of information about Mr. Diaz, as I have said, including a significant body of personal data that would have been of use to anyone interested in locating him. There is also some evidence in this case, including in the telephone intercepts and in telephone records, that Mr. Diaz was known to or associated with possibly two of the accused, who may have had other information which could have assisted them in locating Mr. Diaz. Despite the indication in the first disclosure package that the

police were attempting to locate Mr. Diaz, no request was made by defence counsel for information or assistance in locating Mr. Diaz after that disclosure package was provided. [26] When the indictment was filed in 2012 and Mr. Diaz was named as an unindicted co-conspirator on Count 2, Crown should have reconsidered whether Task 212 should have been unredacted or partially unredacted and produced. There is no evidence that Crown did so. However, in January 2013, as I have said, the then copy of Task 212 was disclosed. It is obvious from looking at that document that: 1. redactions or vetting had been made; 2. that Mr. Diaz had had at least two interviews with U.S. officials; and 3. that the U.S. officials intended to provide a report to the RCMP about those interviews in addition to the oral reports summarized in Task 212. [27] My conclusion in that regard is supported by the correspondence of November 2013 to which I have referred. I have compared the vetted Task 212 provided to defence counsel in January 2013 with both the less vetted Task 212 provided in November 2013 and the letter from the U.S. Consulate. I am satisfied that the vetted Task 212 provided a fair summary of the information provided by the DEA and the U.S. Consulate to the RCMP. [28] It is of significance that no request was made by defence counsel and no application was brought by defence counsel, as I have

said, after receipt of the vetted Task 212 for further disclosure until November 2013 and no request, as I understand it, was made for further information or actual assistance with respect to the location of Mr. Diaz. [29] I reject the submission that the statement in the cover letter of January 2013 to the effect that the RCMP had not met with nor obtained a statement from Mr. Diaz was in any way misleading. The RCMP had not met with Mr. Diaz. A statement, as normally understood in proceedings of this nature, is in a question and answer format, usually recorded and transcribed. The body of the vetted Task 212 made it patently obvious that Mr. Diaz had been interviewed, as I have indicated. [30] I do not consider that there has been a significant change in the Crown's case as a result of the amendment to Count 2. As I said in my reasons for allowing the amendment, the Crown's case remains that there was a single importation of cocaine into Canada inside a large fruit grinder, as described, which was intercepted by Canada Border Services on September 22, 2010. The machine was delivered to Happy Shacks storage facility in Kelowna on September 29, 2010, and removed from that facility on October 1, 2010. The Crown's case, aside from the evidence of the consignee, Mr. Szucs, and the Customs broker, focuses on matters which occurred on or after September 22, 2010, and includes

telephone intercepts, surveillance, searches, arrests, and the like. [31] Mr. Szucs is the only Crown witness who knew Mr. Diaz and he was examined and cross-examined about his relationship with Mr. Diaz and his dealings with Mr. Diaz with regard to the importation of the fruit grinder. This is not, in my view, a case of "lost evidence". There is no evidence before me that the "availability" of Mr. Diaz, as a potential witness for the defence or as a source for a chain of inquiry, changed at any time between the January 2011 disclosure package, the production of the vetted Task 212, and the present date. [32] On a consideration of all of the evidence and the submissions, I am not satisfied that there is anything which has occurred with regard to disclosure concerning Mr. Diaz which would justify the granting of a stay or a mistrial. [33] With respect to vetted information in Task 212 and the letter from the U.S. Consulate, any information with regard to Mr. Diaz's location or contact information or other information related to Mr. Diaz said to be sensitive must be disclosed. Vetted information with regard to third parties, including contact information concerning the U.S. authorities, may remain vetted. [34] There is one other matter I will address briefly. [35] It has been submitted by one of the defence counsel that I ought to grant a mistrial on the basis, essentially, of

bias. To quote the written submissions: This Court has made many rulings, some of which touch on credibility issues of various police witnesses, and it has rejected out-of-hand the submission that the State chose not to broaden the conspiracy time frame prior to the voir dire on P12. Against, this backdrop, Montgomery submits that the within proceedings have been tainted to the point where reasonable members of the public could no longer be satisfied that the trial process is fair. To put it a different way, in the light of the rulings already made how could a reasonably informed member of the public accept that this court will be able to objectively judge its own deliberative process? We submit, they cannot and would not accept that proposition and, for that reason, the within prosecution cannot continue. [36] I reject that submission. To the extent the accused take the position that I was wrong in allowing the amendment, my reasons for which speak for themselves, their remedy, if any, lies in another court. There is nothing in the submissions or in the evidence presented on the applications which would cause me to revisit my ruling, nor can a stay or a mistrial be granted on the basis of that ruling. [37] In summary, then, the applications for the stay or a mistrial are dismissed. [38] The application for further disclosure with respect to Task 212 and the Legal Consulate letter is allowed to the extent of information related to Mr. Diaz. "A.J. Beames J."