R. v. Clarke (B.E.) et al., 2014 NSSC 177

• Judge: Coady, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 13, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 177;(2014), 344 N.S.R.(2d) 386 (SC)

R. v. Clarke (B.E.) (2014), 344 N.S.R.(2d) 386 (SC);

    1089 A.P.R. 386

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MY.033

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

(CRH No. 346068; 2014 NSSC 177)

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

Nova Scotia Supreme Court

Coady, J.

May 13, 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 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.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - 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 Nova Scotia Supreme Court ordered that the Crown disclose the two draft reports and the unredacted copy of the Task 335 folder - The information sought was relevant - The Crown did not establish solicitor-client or litigation privilege - The court stated that if privilege had been established, disclosure would have been ordered on the basis that the privilege had been waived - The court stated that "Evans will be a very important, if not a critical Crown witness. His area of expertise is very complex and not well understood by the average citizen. The draft reports are early versions of the final product. The Task 335 materials relate to the providing of instructions on this task. I have no difficulty concluding they are necessary for the defendants to make full answer and defence to this critical expert evidence." - See paragraphs 13 to 31.

Criminal Law - Topic 4748

Procedure - Information or indictment - Charge or count - Indictable offences - Particulars - 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 particulars under s. 587(1) of the Criminal Code - The Nova Scotia Supreme Court stated that "I have reviewed the record, especially the disclosure materials, and I have found these documents describe the offences alleged in great detail. It cannot be said that these defendants have any confusion as to the case they have to meet. Further, they have been involved in a regulatory and civil proceeding over several years which would have enhanced their knowledge of the case. This is a significant case in terms of time required, numbers of witnesses and the amount of disclosure. However, after reviewing the record before me, I did not find this prosecution to be vague, uncertain or complicated. ... I am ordering the Crown to advise the defendants whether they intend to lead evidence of other conspirators beyond the 13 currently identified. In all other respects the particulars applications are dismissed." - See paragraphs 32 to 43.

Evidence - Topic 4150.1

Witnesses - Privilege - Privileged topics - Police work product - [See Criminal Law - Topic 4505 ].

Evidence - Topic 4255

Witnesses - Privilege - Lawyer-client communications - Waiver - By offer of evidence - [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, refd to. [para. 3].

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, refd to. [para. 15].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 20].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201, refd to. [para. 23].

R. v. Giroux (L.), [2001] O.T.C. 982; 2001 CarswellOnt 4688 (Sup. Ct.), refd to. [para. 24].

Browne v. Lavery et al., [2002] O.T.C. 109; 2002 CarswellOnt 496 (Sup. Ct.), refd to. [para. 25].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 27].

R. v. Friskie (J.) (2001), 205 Sask.R. 208; 2001 CarswellSask 196 (Prov. Ct.), refd to. [para. 28].

R. v. Canadian General Electric Co., [1974] O.J. No. 13, refd to. [para. 33].

R. v. Violette (J.J.) et al., [2008] B.C.T.C. Uned. H14 (S.C.), refd to. [para. 35].

R. v. Pangman (W.G.) et al. (1999), 143 Man.R.(2d) 161 (Q.B.), refd to. [para. 35].

R. v. Dickson (J.) et al. (1996), 22 O.T.C. 169 (Gen. Div.), refd to. [para. 35].

R. v. Thatcher (1987), 75 N.R. 198; 57 Sask.R. 113; 42 C.R.(3d) 259, refd to. [para. 35].

R. v. Dixon, [1984] B.C.J. No. 2010 (C.A.), refd to. [para. 36].

R. v. Beauchamp (H.) et al., [2008] O.T.C. Uned. L05 (Sup. Ct.), refd to. [para. 37].

R. v. Armour Pharmaceutical Co. et al., [2006] O.T.C. 36 (Sup. Ct.), refd to. [para. 39].

R. v. Atlantic Towing Ltd. (2010), 295 N.S.R.(2d) 124; 935 A.P.R. 124; 2010 NSPC 58, refd to. [para. 42].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 45].

R. v. Dennis, [1970] 1 C.C.C. 86 (Ont. C.A.), refd to. [para. 47].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 587(1), sect. 587(2) [para. 32].

Counsel:

Tyler Hodgson, for Mr. Colpitts;

Barry Whynot, for Mr. Clarke;

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

Daniel Potter, self-represented.

These applications were heard on April 28-30, 2014, at Halifax, N.S., before Coady, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 13, 2014.