Territorial Court

R. v. Charles Stanley Firth, 2015 NWTTC 15
Date: 2015 07 15
File: T3-CR-2014-000450
		          			
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES


	BETWEEN:

HER MAJESTY THE QUEEN


- and -


CHARLES STANLEY FIRTH



MEMORANDUM OF JUDGMENT
of the
HONOURABLE JUDGE ROBERT D. GORIN





Heard at:		Yellowknife, Northwest Territories
		
Date of Written Decision:		July 15, 2015
		
Date Application Heard:		June 23, 2015
		
Counsel for the Crown:		Angie Paquin
		
Counsel for the Accused:		Michael Martin



 [Disclosure Application]
[Sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms]


 R. v. Charles Stanley Firth, 2015 NWTTC 15
			Date:  2015 07 15
File: T3-CR-2014-000450

IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

- and -

CHARLES STANLEY FIRTH
________________________________________


MEMORANDUM OF JUDGMENT
(Disclosure Application)


I)	 INTRODUCTION

[1]	The accused is charged with assault causing bodily harm and uttering a threat to cause bodily harm contrary to ss. 267(b) and 264.1(1)(a) of the Criminal Code.  He has pleaded not guilty and his trial is scheduled to commence next month on August 19th.  On June 23rd of this year, the accused applied for an order, pursuant to ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms, requiring that all further interviews between Crown counsel and its potential witnesses be recorded “by either or both video and audio means”.  I denied the application and advised written reasons would follow.  My reasons are set out in the following paragraphs.

II)	ANALYSIS

[2]	Since the date of the accused’s application, Charbonneau J. of the Supreme Court of the Northwest Territories denied a similar application in the case of R. v. K.M., 2015 NWTSC 33.  It would appear that in K.M. the positions of the parties were quite similar to those of the present case.

[3]	In my view the doctrine of stare decisis does not apply, since Justice Charbonneau was acting as a court of first instance and not in her capacity as a summary conviction appeals court.  However, her reasons, as set out in paragraphs 27 to 50, substantially reflect my reasons for denying the within application.  That being the case, it is unnecessary to repeat them.

[4]	However, I will address one further point raised by the accused in the present case.  The accused submitted that the development of new recording technology and the greater ease with which interviews could now be recorded was a factor favouring disclosure obligations above and beyond those set out by the Supreme Court of Canada in  R. v. Stinchcombe, [1991] 3 SCR 326.   I note that at paragraph 33 of Stinchcombe, Sopinka J., speaking on behalf of a unanimous court, stated:

I am of the opinion that, subject to the discretion to which I have referred above, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses.  Where statements are not in existence, other information such as notes should be produced, and, if there are no notes, then in addition to the name, address and occupation of the witness, all information in the possession of the prosecution relating to any relevant evidence that the person could give should be supplied. …

[5]	The accused submitted that the common law is evolutionary and that changes often occur over time.  In this regard, I agree completely with the accused.  The Supreme Court in Stinchcombe noted such a change when it stated (at para. 18):

In my opinion there is a wholly natural evolution of the law in favour of disclosure by the Crown of all relevant material.

[6]	Furthermore, as  pointed out by Justice Charbonneau in K.M. (supra ) and R. v. Nadli, 2014 NWTSC 47, trial courts certainly have a role to play in the evolution of common law principles in general and in particular in the refinement of Charter rights.

[7]	That said, I have difficulty with the proposition that recent advancements in recording technology require the disclosure requirements of Stinchcombe to be revised.  In support of his position, the accused filed an affidavit with an advertisement for a “digital voice recorder” costing under $100 and capable of recording over 800 hours of audio recording, attached as an exhibit.   However, the accused provided no specific submissions or evidence on how such a device might increase ease of recording witness interviews beyond what had previously been the case.

[8]	While inexpensive equipment capable of digital recording may be a relatively recent development, inexpensive and easily operated audio recording equipment has been available since at least the early 1970s.  Accessible and inexpensive video recording equipment has also been available for many years, and in any event well in advance of Stinchcombe.  Accordingly, while I certainly agree that common-law and Charter jurisprudence continues to evolve, I have difficulty with the proposition that there have, since Stinchcombe, been advances in recording technology that significantly support the applicant’s position.

III	CONCLUSION

[9]	For the reasons I have referred to, in particular those that have been set out in K.M., I have concluded that the Crown has no general obligation to make audio or video recordings of its interviews with witnesses.  That said, I do not rule out the possibility that the order sought by the accused could be warranted under certain circumstances.  However, in the present case, counsel for the accused made it clear that he was not relying on any specific circumstances in support of his application and was taking the position that the purported disclosure obligation should apply in all cases.  That being the case, and in the absence any evidentiary foundation, I am unable to conclude that the disclosure order requested by the accused is justified.

	
	
		Robert D. Gorin
T.C.J.
Dated at Yellowknife, Northwest Territories, this 15th day of July, 2015.		

R. v. Charles Stanley Firth, 2015 NWTTC 15
	
Date:  2015 07 15
File: T3-CR-2014-000450


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



BETWEEN:

HER MAJESTY THE QUEEN

- and -

CHARLES STANLEY FIRTH




MEMORANDUM OF JUDGMENT
of the
HONOURABLE JUDGE ROBERT D. GORIN





[Disclosure Application]
[Sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms]