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R. v. Mehari, 2006 NWTSC 21 S-1-CR2005000098 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - SEMERE MEHARI _________________________________________________________ Transcript of a Ruling by The Honourable Justice J.Z. Vertes, at Yellowknife in the Northwest Territories, on March 21st A.D., 2006. _________________________________________________________ APPEARANCES: Ms. S. Smallwood: Counsel for the Crown Ms. M. Nightingale: Counsel for the Accused ---------------------------------------- Charge under s. 354(1)(a) Criminal Code of Canada Charge under s. 5(2) Controlled Drugs and Substances Act An order has been made temporarily prohibiting the publication in a newspaper or broadcast of the information contained herein pursuant to Section 648 of the Criminal Code BAN ON PUBLICATION OF COMPLAINANT/WITNESS PURSUANT TO SECTION 486 OF THE CRIMINAL CODE Official Court Reporters 1 THE COURT: These are my reasons on the 2 defence application for further and better 3 disclosure. Because the application is resisted 4 in part on the basis of a lack of relevance to 5 the issues of this case, it is necessary to set 6 out what I understand to be the factual 7 parameters of this application. 8 The accused is charged with one count of 9 possession of cocaine for the purpose of 10 trafficking and one count of possession of 11 proceeds of crime. The charges arose as the 12 result of a vehicle stop. Constable Vezina, 13 along with another officer, stopped a vehicle 14 driven by the accused. In the vehicle was 15 another occupant, M.P. The stop came after 16 Constable Vezina checked the vehicle's license 17 plate with telecoms operators. 18 Upon stopping the vehicle, Constable Vezina 19 saw that M.P. was a passenger. M.P. was known to 20 him. A search of M.P. resulted in the discovery 21 of drug paraphernalia. M.P. then told the 22 officer that there were drugs in the vehicle. A 23 search of the vehicle resulted in the seizure of 24 some crack cocaine. A search of the accused 25 revealed further amounts of crack cocaine and 26 cash. 27 The defence has filed an application to Official Court Reporters 1 1 exclude the evidence seized as the result of the 2 searches of the vehicle and the accused on the 3 basis that the accused's rights were violated. 4 It is in the context of the preparation for 5 the voir dire that this disclosure application 6 has been filed. The defence seeks information 7 relating in particular to M.P.'s involvement with 8 the police, particularly Constable Vezina, and 9 M.P.'s involvement in other cases. Such 10 information is said to be relevant so as to 11 enable the defence to probe the reasonableness of 12 Constable Vezina's actions in stopping the 13 vehicle and then in searching the vehicle and the 14 accused. 15 Crown counsel informed me that the Crown 16 does not intend to call M.P. as a witness either 17 on the voir dire or at trial. Defence counsel 18 informed me that, if the seized items are 19 admitted as evidence at trial, the primary issue 20 in dispute will be the purpose of the possession. 21 I set out these factual circumstances 22 because, as counsel know, the disclosure 23 obligations of the Crown rest on the foundation 24 of relevance. The Crown is required to disclose 25 all relevant material in its possession or 26 control. Any information that may be of some use 27 to the defence must be disclosed, unless Official Court Reporters 2 1 non-disclosure is justified by some legal 2 privilege. Relevance, of course, is determined 3 by the issues in the case. 4 In this case the issues are, first, whether 5 Constable Vezina had the necessary articulable 6 cause to stop the vehicle and, secondly, whether 7 he had the requisite grounds to search the 8 vehicle and to search and arrest the accused. 9 What the officer thought subjectively, and what 10 the objective facts of the situation were, are 11 all matters that will be explored in the 12 examination and cross-examination of the officer. 13 I am grateful to both counsel for narrowing 14 the scope of the disclosure issues during the 15 hearing of this application. 16 I will review the disclosure requests as 17 outlined in the defence Notice of Motion. 18 (a) Telecoms log/reports and voice 19 recordings of police transmissions relating to 20 license plate checks or other contacts from 21 Constable Vezina to RCMP headquarters. 22 I was told by Crown counsel that she will be 23 producing the telecoms logs and recordings to the 24 defence. Therefore, it appears to me, that this 25 is no longer an issue. 26 (b) A list of all dates of contact between 27 police and M.P. before the offence date, Official Court Reporters 3 1 especially contacts between Constable Vezina and 2 M.P., and copies of all notes, statements, 3 recordings, and summaries of those contacts. 4 Defence counsel, during argument, reduced 5 this request to records respecting contacts 6 specifically between Constable Vezina and M.P. 7 Crown counsel agreed to disclose notes or 8 reports, if any, regarding such contacts. I 9 think this concession is appropriate since, in my 10 view, such material is at least broadly relevant 11 to the question of Constable Vezina's subjective 12 grounds to do what he did. 13 (c) Copies of all drug intelligence and 14 field operations files relating to M.P. and the 15 accused. 16 As a general rule, and as a matter of public 17 policy, having regard to the purpose of law 18 enforcement, it is in the public interest that 19 sensitive police intelligence information, or 20 information about ongoing investigations, or 21 information about investigative techniques, be 22 protected and therefore subject to a public 23 interest privilege from disclosure. It seems to 24 me that, broadly speaking, drug intelligence and 25 field operations files fall under one or all of 26 those categories. I have heard no evidence to 27 suggest that there is some fair trial interest or Official Court Reporters 4 1 other important factor that should cause me to 2 deviate from this general approach. However, if 3 there are any such files specifically relating to 4 the accused and to this offence, then I assume 5 they have already been disclosed. I see no such 6 files listed on the Crown's inventory of 7 information in its possession and ordinarily I 8 would not expect to see such files since these 9 charges apparently arose from a vehicle stop made 10 on the spur of the moment (the validity of the 11 grounds for doing so not being the issue on this 12 application). There is nothing to suggest that 13 the stop was the result of some ongoing 14 investigation. 15 (d) The disclosure of all notes, 16 debriefings, plea agreements, immunity 17 agreements, Indictments, sentencing hearings, 18 letters from Crown attorneys to police respecting 19 charges laid against M.P. and later stayed in 20 this investigation, including documentation 21 regarding the charges for breach of probation. 22 Crown counsel has agreed to disclose any 23 such information, if it exists, but only as it 24 relates to these proceedings. I think that is 25 sufficient to comply with the Crown's disclosure 26 obligations considering the fact that M.P. will 27 not be a Crown witness. Official Court Reporters 5 1 I am now going to address, out of sequence, 2 item (g) from the Notice of Motion. All records 3 of M.P. including PIRS, and CPIC. There are also 4 references to two other acronyms which have no 5 bearing on this case, I am told. I was informed 6 that PIRS is what are referred to as the "subject 7 list report" and "occurrence screens" in the 8 Crown's inventory of documents. Crown counsel 9 has undertaken to disclose such parts of PIRS as 10 refer to contact respecting this offence. 11 However, on this point, I agree with defence 12 counsel that all of the PIRS record should be 13 disclosed. This is because of what I was told 14 about Constable Vezina revising his testimony 15 from the preliminary inquiry after he reviewed 16 the PIRS report. Since the officer's testimony 17 will be critical on the voir dire, the basis for 18 that testimony, even just in part, may be 19 examined. Therefore I order disclosure of these 20 reports in their entirety. 21 I will now address items (e), (f), (h), and 22 (i) from the Notice of Motion. These, taken 23 together, request general information about 24 M.P.'s involvement with any and all law 25 enforcement agencies, his involvement in court 26 proceedings, and the use of M.P. as a police 27 informant. The Crown objects to produce any of Official Court Reporters 6 1 this material, if indeed such material exists, on 2 the grounds that it is irrelevant and violates, 3 potentially, the police informer privilege. This 4 is said, of course, without any admission that 5 M.P. is or ever was a police informant. On this 6 point I agree with Crown counsel. 7 There is no suggestion in this case that 8 M.P. was working as a police agent or informer in 9 reference to the stopping of the accused's 10 vehicle. M.P. will not be a witness. Indeed it 11 is hard to think of what M.P. would or could add 12 to this case. The issues revolve around the 13 police officer's subjective belief, and the 14 objective reasonableness of that belief, as far 15 as his grounds to stop the vehicle are concerned 16 and then to search it and the accused. Anything 17 that M.P. may have done on other or previous 18 occasions is irrelevant to those issues. 19 It is accurate to say that ordinarily police 20 reports and records relating to extrinsic 21 misconduct by persons who are or may be summonsed 22 as witnesses by the Crown in unrelated criminal 23 prosecutions are disclosed to the defence. But 24 the key is that the person who is the subject of 25 those reports may be a witness against the 26 accused. That is not the case here. Therefore I 27 refuse to order disclosure of this material. In Official Court Reporters 7 1 any event, Crown counsel has already undertaken 2 to disclose notes and records, if any, of all 3 contacts between Constable Vezina and M.P. 4 This leaves for consideration three e-mail 5 messages that Crown counsel identified in her 6 inventory. These are messages between a Crown 7 counsel and Constable Vezina after the laying of 8 these charges. The Crown resists disclosure on 9 the ground of solicitor-client privilege. 10 There is no question that solicitor-client 11 privilege can apply to communications between 12 Crown counsel and the police. But the privilege 13 does not automatically apply to any and all 14 communications as between Crown counsel and the 15 police. The working relationship between the two 16 inevitably leads to all types of communications, 17 some fairly mundane and others very serious. The 18 police is not a "client" of the Crown's office 19 for all purposes and at all times. I know of no 20 case that says that just because a communication 21 is between a Crown counsel and a police officer 22 that there is automatically some relationship of 23 solicitor-client created so as to trigger the 24 privilege. For the privilege to apply, it must 25 be made in circumstances where legal advice of 26 some kind is sought from, and given by, a 27 professional legal advisor acting in such a Official Court Reporters 8 1 capacity. 2 It seems clear that the relationship between 3 Crown counsel and the police is very much like 4 that of a government lawyer who gives advice to a 5 client department. Where the advice is on some 6 legal issue, then the privilege applies. But the 7 privilege does not apply to all communications. 8 Each claim of privilege must be assessed on a 9 case-by-case basis to determine if the 10 circumstances are such that they give rise to the 11 privilege. As noted in the Supreme Court of 12 Canada case of R. v. Shirose (1999) 133 C.C.C. 13 (3d) 257, at para 50, whether or not 14 solicitor-client privilege attaches depends on 15 the nature of the relationship, the 16 subject-matter of the advice, and the 17 circumstances in which it is sought and rendered. 18 Having reviewed the e-mail messages in 19 question, I must say that I fail to see how they 20 come within the category of solicitor-client 21 privilege. They do not discuss any legal issues; 22 they do no seek nor give advice or opinions; they 23 merely relate information as to steps to be taken 24 in the prosecution of these charges. They are 25 merely information items. Not being in the 26 nature of solicitor-client communications, the 27 privilege does not apply. Official Court Reporters 9 1 Since these messages are related to these 2 proceedings, they are to be disclosed. The only 3 exception to this direction are some handwritten 4 notes at the bottom of what I gather is the last 5 message. Those notes appear to me to be in the 6 nature of a memo to file or, to put it in more 7 technical terms, a lawyer's work product. Thus 8 those handwritten notations are not disclosable 9 and should be edited out of the document when it 10 is disclosed. I therefore direct the Clerk of 11 the Court to return to Crown counsel the e-mail 12 messages that were provided to me under seal so 13 that this order may be complied with in due 14 course. 15 THE CLERK: Yes, Your Honour. 16 THE COURT: Those are my directions, 17 counsel, and my rulings with respect to the 18 disclosure application. 19 ------------------------------------- 20 Certified correct to the best of my skill and ability, 21 22 23 24 ____________________________ 25 Lois Hewitt, CSR(A), RPR, CRR Court Reporter 26 27 Official Court Reporters 10
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