R. v. Andiruchow (A.) et al., 2008 ABPC 133

• Judge: Malin, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 07, 2008
• Citations: 2008 ABPC 133;(2008), 449 A.R. 218 (PC)

R. v. Andiruchow (A.) (2008), 449 A.R. 218 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.134

Her Majesty the Queen (respondent) v. Alexandria Andiruchow and Lioubov Sivachova (applicants) and Chief of Police, Edmonton Police Service and Sgt. Gamble, Cst. McKee, Cst. Hodgson, Cst. Keane Block, Cst. Williams, Cst. Cosman and Cst. Burden (intervenors)

(060254703P1; 2008 ABPC 133)

Indexed As: R. v. Andiruchow (A.) et al.

Alberta Provincial Court

Malin, P.C.J.

May 7, 2008.

Summary:

Two accused were each charged with assaulting a peace officer engaged in the execution of his duty. The accused alleged violations of their ss. 7, 9, 10(a), 10(b), 11(d) and 12 Charter rights. The accused applied for an order compelling the Crown to disclose the complaints files and disciplinary records, if any, of seven members of the Edmonton Police Service (EPS). Two of the EPS officers were the complainants in the assault charges facing the accused. The other five EPS officers were alleged to have participated in the post-arrest detention and processing of the accused.

The Alberta Provincial Court held that the records sought, if they existed, were third party records that could only be disclosed pursuant to the rules in R. v. O'Connor (S.C.C.). The court concluded that since the applicants could not establish that any complaint files or discipline records of the EPS officers existed, their right to compel the disclosure of such records was denied.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - Two accused were each charged with assaulting a peace officer engaged in the execution of his duty - The accused alleged violations of their ss. 7, 9, 10(a), 10(b), 11(d) and 12 Charter rights - The accused applied for an order compelling the Crown to disclose the complaints files and disciplinary records, if any, of seven members of the Edmonton Police Service (EPS) - Two of the EPS officers were the complainants in the assault charges facing the accused - The other five EPS officers were alleged to have participated in the post-arrest detention and processing of the accused - Counsel for the accused submitted that the discipline records and civil claims relating to the ESP officers would relate to the character and propensity of those officers to use excessive force or to abuse their authority or be dishonest - The Alberta Provincial Court held that the records sought, if they existed, were third party records that could only be disclosed pursuant to the rules in R. v. O'Connor - The court concluded that since the applicants could not establish that any complaint files or discipline records of the EPS officers existed, their right to compel the disclosure of such records was denied - The court further stated that "Although it is now obiter dicta, I find that any complaint records concerning the complainants, particularly those that might deal with allegations of excessive force and to a lesser extent, those that might deal with dishonesty, would easily satisfy the 'not clearly irrelevant' test under Stinchcombe and might well satisfy the more onerous 'likely relevant' test under O'Connor".

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties (incl. audio tapes etc.) - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 5384

Evidence and witnesses - Documents and reports - Police employment and disciplinary records - [See Criminal Law - Topic 4505 ].

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, consd. [para. 3].

R. v. Hoeving (J.L.), [2007] A.R. Uned. 506; 2007 ABQB 561, consd. [para. 3].

R. v. Lee (T.R) (2007), 426 A.R. 315; 2007 ABQB 454, consd. [para. 3].

R. v. Mack (D.R.) (2008), 458 A.R.52; 2007 ABQB 182, consd. [para. 3].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, consd. [para. 4].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, consd. [para. 4].

R. v. McCarthy, 2007 ABQB 791, consd. [para. 4].

R. v. McCarthy (R.M.R.) et al. (2008), 439 A.R. 365; 2008 ABQB 215, consd. [para. 4].

Authors and Works Noticed:

Renke, Wayne, Application for Third-Party Records: The Relationship of the O'Connor Procedure to Other Application Procedures (2002), 40 Alta. L. Rev. 593, generally [para. 64].

Counsel:

Julie Morgan, for the Crown;

K. Haymond (Field LLP), for the EPS/co-respondent;

T. Engel (Engel Brubaker), for the accused/applicants.

This application was heard before Malin, P.C.J., of the Alberta Provincial Court, who delivered the following ruling on May 7, 2008.