R. v. Rojas

2003BCSC1064 Citation: HMTQ v. Rojas Date: 20030429 2003 BCSC 1064 Docket: 20703 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA Ruling on First Stage of First O'Connor Application for Production of Correctional Records Relating to Proposed Crown Witness The Honourable Mr. Justice Davies April 29, 2003

HER MAJESTY THE QUEEN

AGAINST

MIGUEL ANGEL ROJAS

HUGO CARLOS ROJAS Counsel for the Crown: G. Loeppky B. McCabe Counsel for the Defendant, Miguel Rojas: J.M. White Counsel for the Defendant, Hugo Rojas: M.A. Nathanson Counsel for Proposed Witness on O'Connor application: K.B. Cronin [1] THE COURT: This is an application brought by the accused, Miguel Rojas, supported by the accused, Hugo Rojas, with respect to the production by certain named prison authorities of correctional records relating to a proposed Crown witness. [2] Essential to this application, brought in the nature of an O'Connor application (R. v. O'Connor, [1995] 4 S.C.R. 411) under the provisions of the Criminal Code, is the fact that this proposed witness is a jailhouse informant. [3] This application is thus not like that considered in the usual O'Connor application where what is often at issue are counselling or therapeutic records of a complainant that might have an effect upon the question of full answer and defence but that also give rise to serious privacy issues. [4] This is a dramatically different situation. While the proposed witness does have some privacy interest in his correctional records, it is a limited one. These are records maintained in a public institution and widely shared within that institution for decision-making processes, including placement and parole decisions. Further, information in those records is frequently made available to the

courts directly and indirectly through submissions of counsel and through pre-sentence reports. [5] Accordingly, while there may be some expectation of privacy in these records, in my view, it is a low one when compared with that related to therapeutic or counselling records or private diaries maintained by complainants in sexual abuse cases. [6] The threshold test for determining whether an order should be made to produce third party records is whether the defence has shown there is "likely relevance" to the records sought. [7] Counsel for the proposed witness, has acknowledged that, aside from issues of editing relating to potential safety or security issues, the witness does not take issue with the relevance and potential probative importance of documents related to events from and after October 2, 2002, that being dates when the proposed witness allegedly became involved with the two accused in this case as a jailhouse informant. Counsel for the proposed witness does argue, however, that there is no relevance to his records prior to that time and that without that temporal link, the accused have not established the likely relevance of the records. [8] On that issue, I am attracted to the reasoning of Mr. Justice Rutherford in R. v. Chenier, [2000] O.J. No. 5421 (Ont. Sup. Ct.) which also considered third party records of the same type I am asked to have produced. [9] In

Chenier, Mr. Justice Rutherford ordered the production of the correctional records sought by the accused in their entirety of the first stage of the O'Connor application, but had this to say, at para. 9: At the end of the argument, because time is precious in terms of actually having these files copied and produced from within the bureaucracy, I ruled that the prison files under all ten headings should be produced for my inspection. I did so notwithstanding that I am uncertain whether the threshold has been met in relation to all these files. Part of my concern is my unfamiliarity with what is kept in these files and particularly what may be in one but not another within the prison system. I am also concerned that in a way, this is a pure bit of fishing, but, when one looks at the language in the judgment of Chief Justice Lamer and Sopinka J. in O'Connor (supra) at pp. 440-41 it is hard not to accept that they too would agree that a certain amount of fishing is permissible. [10] Those comments apply in this case. It may well be that there is a certain amount of fishing in relation to the proposed witness's records that is taking place. On the other hand, this is potentially a very important Crown witness. [11] The recent inquiries into the Sophonow and Morin wrongful convictions have highlighted the extent to which jailhouse informants can create or contribute toward

miscarriages of justice. [12] In all of the circumstances, I am satisfied that the accused has established the threshold test of likely relevance arising for all of the correctional records sought because the primary issue here is the credibility of the proposed witness. His credibility and character will be the focus of cross-examination. That cross-examination would be unduly limited if information which casts doubt upon his credibility and character or which may substantiate manipulation of the corrections system by him exists in his correctional records. If that evidence exists and is not produced, the accused's ability to provide full answer and defence will be prejudiced and compromised. [13] All of this is, of course, said at the first stage of the inquiry. I will be required to review all of the documents, when produced, to determine whether any privacy of interests of the witness should be abridged. [14] I will, at that second stage also seek further input concerning the question of any editing which might be necessary or appropriate in all of the circumstances for security purposes and will invite counsel for the Crown and for the proposed witness, as well as counsel for the defence, to the extent necessary to address those issues. [15] The document files requested will accordingly now be produced for me in their entirety. "B.M. Davies, J." The Honourable Mr. Justice B.M. Davies