R. v. Clarke (B.E.) et al., (2014) 353 N.S.R.(2d) 374 (SC)

• Judge: Coady, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 08, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 353 N.S.R.(2d) 374 (SC);2014 NSSC 441

R. v. Clarke (B.E.) (2014), 353 N.S.R.(2d) 374 (SC);

    1115 A.P.R. 374

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. DE.042

Her Majesty the Queen v. Bruce Elliott Clarke, R. Blois Colpitts and Daniel Frederick Potter

(CRH 346068; 2014 NSSC 441)

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

Nova Scotia Supreme Court

Coady, J.

December 15, 2014.

Summary:

The accused were charged with fraud and conspiracy to commit fraud for allegedly manipulating the share price of Knowledge House Inc. 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 brought an O'Connor application for production of third party documents over which the third party (Securities Commission) claimed privilege. At issue was the preliminary determination of whether privilege or likely relevance should be determined first. The Crown and Commission argued that it would be more efficient to argue "likely relevance" first. The accused argued that "privilege" should be determined first.

The Nova Scotia Supreme Court held that under O'Connor, as refined by R. v. McNeil, in all but the rarest cases, since privilege would bar production of the documents regardless of their relevance, privilege should be determined first. If privilege were rejected, then relevance was to be determined. This was not one of those exceptional cases warranting departing from determining privilege first.

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - The accused were charged with fraud and conspiracy to commit fraud for allegedly manipulating the share price of Knowledge House Inc. over an 18 month period in 2000 and 2001 - The accused brought an O'Connor application for production of third party documents over which the third party (Securities Commission) claimed privilege - At issue was the preliminary determination of whether privilege or likely relevance should be determined first - The Crown and Commission argued that it would be more efficient to argue "likely relevance" first - The accused argued that "privilege" should be determined first - The Nova Scotia Supreme Court held that under O'Connor, as refined by R. v. McNeil, in all but the rarest cases, since privilege would bar production of the documents regardless of their relevance, privilege should be determined first - If privilege were rejected, then relevance was to be determined - This was not one of those exceptional cases warranting departing from determining privilege first.

Cases Noticed:

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, refd to. [para. 2].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154, folld. [para. 3].

R. v. Basi (U.S.) et al., [2009] B.C.T.C. Uned. 756; 2009 BCSC 756, dist. [para. 7].

R. v. Sipes (D.G.) et al., [2010] B.C.T.C. Uned. 1625; 2010 BCSC 1625, dist. [para. 7].

Counsel:

James Martin and Scott Millar, for the federal Crown;

Barry Whynot, for Bruce Elliott Clarke;

Tyler Hodgson, for R. Blois Colpitts;

Daniel Potter, self-represented;

Edwards Gores, Q.C., for Nova Scotia Securities Commission.

This preliminary matter was heard on December 8, 2014, at Halifax, N.S., before Coady, J., of the Nova Scotia Supreme Court, who delivered the following judgment on December 15, 2014.