R. v. Clarke (B.E.) et al., 2016 NSSC 48

• Judge: Coady, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 16, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSSC 48;(2016), 370 N.S.R.(2d) 148 (SC)

R. v. Clarke (B.E.) (2016), 370 N.S.R.(2d) 148 (SC);

    1165 A.P.R. 148

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. FE.034

Robert Blois Colpitts and Daniel Frederick Potter (applicants) v. Her Majesty the Queen (respondent)

(CRH 346068; 2016 NSSC 48)

Indexed As: R. v. Clarke (B.E.) et al.

Nova Scotia Supreme Court

Coady, J.

February 16, 2016.

Summary:

The accused were charged with fraud and conspiracy to commit fraud for allegedly manipulating the price of Knowledge House Inc. shares over an 18 month period in 2000 and 2001. An extensive R.C.M.P. investigation commenced in 2003 with the assistance of an expert (Evans). Evans' 2010 report supported the Crown's theory and he would be a critical Crown witness at trial. The accused sought Crown disclosure of two drafts of Evans' report and an unredacted copy of an electronic Task 335 folder, which contained all R.C.M.P. discussions with Evans and any materials forwarded to him. The Crown claimed solicitor-client and litigation privilege respecting the redacted portions of the folder. The accused also sought particulars of the alleged offences to ensure that they would be able to make full answer and defence.

The Nova Scotia Supreme Court, in a judgment reported (2012), 319 N.S.R.(2d) 384; 1010 A.P.R. 384, ordered that the Crown disclose the two draft reports and the unredacted copy of the Task 335 folder. The court declined to order further particulars, other than ordering the Crown to advise the accused whether they intended to lead evidence from other conspirators beyond the 13 identified. One of the accused (Colpitts) applied for an order that the Crown breached its duty under R. v. McNeil (SCC) to make reasonable inquiries respecting relevant material known to be in the possession of the Nova Scotia Securities Commission and to attempt to obtain those materials. Colpitts sought disclosure or, alternatively, access to the materials.

The Nova Scotia Supreme Court, in a judgment reported (2013), 344 N.S.R.(2d) 10; 1089 A.P.R. 10, held that the Crown breached its McNeil obligation. Since Colpitts already had the materials (but was precluded by court order from accessing them), the appropriate order was to permit Colpitts access to the materials. Colpitts now applied for disclosure of all e- mails/correspondence between the Crown and the Securities Commission after the date the indictment was preferred. The Crown, which possessed the information, had declined to disclose it on the ground that the communications were not relevant.

The Nova Scotia Supreme Court, in a judgment reported (2014), 349 N.S.R.(2d) 352; 1101 A.P.R. 352, ordered that the e-mails/correspondence be disclosed. Given the previous McNeil application, there was a reasonable possibility that the e-mails/correspondence contained relevant information. The Crown's bald statement that the information was irrelevant was an assertion only. The court was satisfied that the information could reasonably assist all of the accused in advancing a defence or defining their trial strategy. The accused applied to have the judge recuse himself, alleging both actual bias and a reasonable apprehension of bias based on remarks made in two case management conferences and in the prior decision on third party production (i.e., unable to adjudicate the matter impartially).

The Nova Scotia Supreme Court, in a judgment reported (2014), 353 N.S.R.(2d) 355; 1115 A.P.R. 355, dismissed the recusal application. Colpitts then brought an O'Connor application for the Securities Commission to disclose third party documents for which privilege was claimed. Of the 19 third parties given notice, only one (National Bank) responded by advising that it had a possible interest in 125 of the thousands of documents. A hearing was held to determine which of the documents were privileged. Once the privilege issue was resolved, the court would then determine the "likely relevance" of the remaining non-privileged documents as directed by O'Connor and McNeil.

The Nova Scotia Supreme Court, in a judgment reported (2015), 355 N.S.R.(2d) 227; 1123 A.P.R. 227, determined which documents were privileged. Now at issue was the "likely relevance" of the non-privileged documents.

The Nova Scotia Supreme Court, in a judgment reported (2015), 356 N.S.R.(2d) 364; 1126 A.P.R. 364, held that the accused failed to meet the threshold onus of showing that any of the 400 documents, other than some investigator's notes, were "likely relevant". One of the accused (Colpitts) brought a second recusal motion, to be considered cumulatively with the first recusal motion and expanded grounds.

The Nova Scotia Supreme Court, in a judgment reported (2015), 358 N.S.R.(2d) 163; 1131 A.P.R. 163, dismissed the application. The R.C.M.P. investigation took eight years to complete, with the assistance (after 2007) of a federal IMET Quick Start Team that provided the training and resources to conduct such complex investigations. There was a further five year delay from the date of the charges to the end of the trial. The accused applied under s. 24(1) of the Charter for a stay of proceedings, alleging a denial of their rights under ss. 7 and 11(b) of the Charter on the basis of pre-charge and post-charge delay, and abuse of process.

The Nova Scotia Supreme Court, in a judgment reported (2015), 363 N.S.R.(2d) 337; 1143 A.P.R. 337, dismissed the application. Colpitts brought a third recusal motion.

The Nova Scotia Supreme Court, in a judgment reported (2015), 365 N.S.R.(2d) 184; 1151 A.P.R. 184, dismissed the motion. During the trial, two of the accused (Colpitts and Potter) applied, in advance of the evidence being taken, for an order limiting the viva voce evidence to be given by an R.C.M.P. investigator (Black) and for an order that the co-conspirators' exception to the hearsay rule was not available to the Crown in this case.

The Nova Scotia Supreme Court held that it was unwilling, in a vacuum, to put limits on the investigator's ability as a lay witness to give opinion evidence. The court indicated that it would intervene only if the investigator gave opinion evidence that required specialized knowledge. The court held that the co-conspirators' exception to the hearsay rule applied and that the hearsay statements were presumptively admissible subject to objections respecting particular documents where it might be necessary to revisit necessity and reliability.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The accused were charged with fraud and conspiracy to commit fraud for allegedly manipulating the price of Knowledge House Inc. shares over an 18 month period in 2000 and 2001 - The Crown proposed to admit hundreds of documents containing hearsay by using the co-conspirator's exception to the hearsay rule - The documents included statements in seized emails, letters and financial documents - The accused opposed the use of the exception - The Nova Scotia Supreme Court held that under the three step R. v. Carter (1982 SCC) test, the court had to be satisfied beyond a reasonable doubt that the alleged conspiracy existed and that the accused were part of the conspiracy - If so, hearsay evidence was admissible for acts and declarations done in furtherance of the conspiracy - The court stated that "I accept there may be times when the Crown wished to rely on documents where it may be necessary to revisit necessity and reliability. Objections will not be discouraged. However, the Defendants must recognize that 'rare cases' are just that -- rare. Displacing the presumption of admissibility will require much greater evidence than that presented to date." - See paragraphs 27 to 48.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Evidence - Topic 7000.3 ].

Evidence - Topic 7000.3

Opinion evidence - Expert evidence - General - Opinion evidence - What constitutes - The accused were charged with fraud and conspiracy to commit fraud for allegedly manipulating the price of Knowledge House Inc. shares over an 18 month period in 2000 and 2001 - An R.C.M.P. investigator (Black) who spent years analyzing thousands of pages of seized documentation was set to testify for the Crown respecting the investigative results to provide the court with an "intimate understanding" of the Crown's case - The investigator would be testifying as a lay witness rather than an expert - The accused challenged the admissibility of the evidence primarily on the ground that it was not factual (admissible) but inadmissible lay person opinion evidence that had to be given by a qualified expert - The Nova Scotia Supreme Court held that it was undisputed that police officers could give opinion evidence on observations made during their investigations - The court anticipated that the investigator's evidence "will be a compendious expression of technical data and, therefore, will be of great assistance to me as trier of fact. I am not, at this time, placing any limitations on Mr. Black's testimony. Given that this ruling is being made in somewhat of a vacuum, I will hear from the Defence if they feel he is wandering into expert evidence. However, I will be reluctant to limit him in light of the various authorities cited herein. I will only intervene if Mr. Black offers an opinion requiring specialized knowledge." - See paragraphs 3 to 26.

Evidence - Topic 7112

Opinion evidence - Nonexpert evidence - Admissibility - [See Evidence - Topic 7000.3 ].

Cases Noticed:

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants, [2015] 2 S.C.R. 182; 470 N.R. 324; 360 N.S.R.(2d) 1; 1135 A.P.R. 1, refd to. [para. 9].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 10].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 10].

R. v. Lee (C.J.) (2010), 474 A.R. 203; 479 W.A.C. 203; 2010 ABCA 1, refd to. [para. 10].

R. v. Ilina (L.) (2003), 170 Man.R.(2d) 207; 285 W.A.C. 207; 2003 MBCA 20, refd to. [para. 10].

R. v. Hamilton (A.) et al. (2011), 279 O.A.C. 199; 2011 ONCA 399, refd to. [para. 14].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 29].

R. v. Mapara (S.) et al. (2005), 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 31].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 32].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 32].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 33].

R. v. Alcantara (J.R.) et al. (2015), 606 A.R. 313; 652 W.A.C. 313; 2015 ABCA 259, refd to. [para. 36].

R. v. Cater (K.) (2014), 349 N.S.R.(2d) 225; 1101 A.P.R. 225; 2014 NSCA 74, refd to. [para. 37].

R. v. Oliynyk (D.J.) et al. (2008), 253 B.C.A.C. 253; 425 W.A.C. 253; 2008 BCCA 132, refd to. [para. 38].

R. v. N.Y. (2012), 298 O.A.C. 297; 2012 ONCA 745, refd to. [para. 38].

R. v. Chang (A.) and Kullman (G.) (2003), 170 O.A.C. 37; 173 C.C.C.(3d) 397 (C.A.), refd to. [para. 40].

R. v. Magno (J.), [2012] O.T.C. Uned. 4001; 2012 ONSC 4001, refd to. [para. 46].

Counsel:

James Martin, Mark Covan and Scott Millar, for the Crown;

Robert Blois Colpitts, self-represented;

George MacDonald, Q.C., and Jane O'Neill, for Daniel Frederick Potter.

This application was heard on February 8, 9 and 11, 2016, at Halifax, N.S., before Coady, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 16, 2016.