R. v. Collins (P.) et al., (2010) 492 A.R. 199 (PC)

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 07, 2009
• Citations: (2010), 492 A.R. 199 (PC);2010 ABPC 19

R. v. Collins (P.) (2010), 492 A.R. 199 (PC)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MR.090

Her Majesty the Queen (Crown/respondent) v. Paul Collins (accused/applicant) and Solicitor General and Minister of Public Security (third party)

(A21668441Z; 2010 ABPC 19)

Indexed As: R. v. Collins (P.) et al.

Alberta Provincial Court

Rosborough, P.C.J.

January 19, 2010.

Summary:

Sheriff Klatt issued Collins a ticket for speeding under the Traffic Safety Act. Collins applied for an order directing that the Solicitor General and Minister of Public Security ("Solicitor General") disclose any information relating to complaints made about Sheriff Klatt and any civil claims against Sheriff Klatt relating to allegations of abuse of authority or dishonesty. Collins also sought a remedy in the form of costs or a judicial stay of proceedings for failure by the prosecution to comply with its other disclosure obligations. Those failings included the failure to preserve the video/audiotape record of Collins' interaction with Sheriff Klatt. The case engaged the ruling in R. v. McNeil (S.C.C.) in the context of Alberta's sheriff service and raised the issue of the scope of the prosecution's duty of disclosure in the context of a regulatory offence.

The Alberta Provincial Court held that the Solicitor General met its duty to disclose by providing the circumstances surrounding Sheriff Klatt's reprimand for abuse of authority. The Crown had satisfied its duty of disclosure subject only to Collins' application for a remedy based on the destruction of the video/audiotapes. A ruling in that regard had to await the trial of the matter in order to determine the full effect, if any, of the failure to preserve those items.

Barristers and Solicitors - Topic 1808

The prosecutor - Duty of disclosure - [See all Trials - Topic 1005 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See all Trials - Topic 1005 ].

Criminal Law - Topic 5384

Evidence and witnesses - Documents and reports - Police employment and disciplinary records - [See second, third, fourth, fifth and sixth Trials - Topic 1005 ].

Motor Vehicles - Topic 2621

Regulation of vehicles and traffic - Rate of speed - Offences - General - [See seventh Trials - Topic 1005 ].

Trials - Topic 1005

Summary convictions - Duty to disclose evidence prior to trial - The Alberta Provincial Court stated that "It is neither desirable nor possible in this judgment to catalogue the precise disclosure duties associated with every regulatory offence and every potential fact situation arising in the context of those offences. I am satisfied, however, that the prosecution's duty of disclosure is attenuated in the context of most regulatory offences. A non-exhaustive list of factors for the court to consider when determining the extent of that attenuation includes the following: (a) the seriousness of the offence (b) the complexity of the case, including the number of witnesses, experts, reports, use of search warrants, etc. (c) the range of penalty upon conviction. Serious and complex regulatory offences exposing the accused to significant penalties upon conviction will attract the full panoply of disclosure duties. Minor and routine regulatory offences attracting modest penalties upon conviction will not" - See paragraph 61.

Trials - Topic 1005

Summary convictions - Duty to disclose evidence prior to trial - Sheriff Klatt issued Collins a ticket for speeding under the Traffic Safety Act - Collins applied for production and disclosure of any information relating to complaints made about Sheriff Klatt - The case engaged the ruling in R. v. McNeil (S.C.C.) in the context of Alberta's sheriff service and raised the issue of the scope of the prosecution's duty of disclosure in the context of a regulatory offence - The Alberta Provincial Court held that allegations or information relating to complaints which had been withdrawn or dismissed were not the subject of first party disclosure - Nor was information relating to complaints that were unfounded or unsubstantiated - Those items did not meet the test of true relevance - The court also held that reference to a "Notice of Hearing" in the Ferguson Report referred to in R. v. McNeil was not analogous to the initiation of an investigation in the Sheriff's Branch disciplinary process - Accordingly, the court stated that it would exclude outstanding complaints or complaints under investigation from any first party disclosure obligation in the context of sheriffs and find that they did not pass the threshold of likely relevance - See paragraphs 75 to 77.

Trials - Topic 1005

Summary convictions - Duty to disclose evidence prior to trial - Sheriff Klatt issued Collins a ticket for speeding under the Traffic Safety Act - Collins applied for production and disclosure of any information relating to complaints made about Sheriff Klatt - The Alberta Provincial Court stated that "a finding was previously made that Sheriff Klatt had abused his authority whilst in the process of issuing summonses to a motorist. Having reviewed the Sheriff's Code of Conduct, I am not satisfied that the categories of misconduct are sufficiently precise that the seriousness of any particular instance of misconduct can be made on a 'categorical' basis. In addition, the Third Party has fairly conceded that a reprimand may or may not be serious, depending upon the circumstances. I am of the opinion that the finding of 'abuse of authority' relating to Sheriff Klatt is sufficiently serious that it ought to be disclosed to the Applicant" - The court held that the Solicitor General's duty to disclose relating to Sheriff Klatt's reprimand had been satisfied by the information already supplied (a summary of the "Memorandum to the subject sheriff regarding the disposition of the complaint") - If the Solicitor General elected to provide the Memorandum itself, the privacy interests of those involved in that matter merited removal of all personal information relating to the complainant prior to disclosure - See paragraphs 86 to 87.

Trials - Topic 1005

Summary convictions - Duty to disclose evidence prior to trial - Sheriff Klatt issued Collins a ticket for speeding under the Traffic Safety Act - Collins applied for production and disclosure of any information relating to complaints made about Sheriff Klatt - The case engaged the ruling in R. v. McNeil (S.C.C.) in the context of Alberta's sheriff service and raised the issue of the scope of the prosecution's duty of disclosure in the context of a regulatory offence - The Alberta Provincial Court stated that "Where a particular regulatory agency maintains records of convictions or findings of guilt for offences within its jurisdiction (or conscripts or is permitted to conscript similar record-keeping systems such as CPIC or JOIN), any such records relating to a McNeil request ought to be disclosed to an accused charged with an offence investigated in that context. As with records of serious misconduct, production will be required only upon a request pertaining to a specific officer escorted by reasons for the request. When a particular regulatory agency has no such records or ready access to that information, it is relieved of any further disclosure obligation in that regard. The Solicitor General, accordingly, has no obligation to 'disclose' any record of convictions or findings of guilt relating to Sheriff Klatt kept on CPIC, JOIN or the record-keeping systems of other government agencies to which it has no access" - See paragraph 89.

Trials - Topic 1005

Summary convictions - Duty to disclose evidence prior to trial - Sheriff Klatt issued Collins a ticket for speeding under the Traffic Safety Act - Collins applied for production and disclosure of any information relating to any civil claims against Sheriff Klatt related to allegations of abuse of authority or dishonesty - The Alberta Provincial Court stated that "There is no evidence of any such claim in the materials before me ... In the absence of any evidence of the existence of a civil action or documents relating thereto in the possession of the prosecution or third party, I would find that the Applicant has failed to establish a basis for any order for production. Moreover, there is no evidence of any efforts made by the Applicant to seek out and obtain that information from other, public sources" - The court agreed with the ruling in R. v. Letourneau (Alta. Prov. Ct.) that records of this nature were not findings of misconduct or analogous to a Notice of Hearing (as those terms were used in R. v. McNeil (S.C.C.) - This component of the application for production was dismissed - See paragraphs 92 to 93.

Trials - Topic 1005

Summary convictions - Duty to disclose evidence prior to trial - Sheriff Klatt issued Collins a ticket for speeding under the Traffic Safety Act - Collins applied for production and disclosure of any information relating to complaints made about Sheriff Klatt - The case engaged the ruling in R. v. McNeil (S.C.C.) in the context of Alberta's sheriff service and raised the issue of the scope of the prosecution's duty of disclosure in the context of a regulatory offence - The Alberta Provincial Court stated that "Given that the Solicitor General has (and is mandated by law to keep) formalized records in this regard, it is my view that imposing a first-party disclosure obligation for findings of serious misconduct by sheriffs is appropriate. Recognizing the need to 'draw the line' on disclosure obligations in the context of simple and routine regulatory offences, however, it is my view that providing those records is not triggered by a simple or (as will be discussed below) an uncalibrated demand for disclosure. In order to trigger the prosecution's duty of disclosure in this context, the accused must expressly request the records of a specific sheriff (i.e. the sheriff(s) in question must be named) and give reasons why they are required. Crown Counsel can thereafter perform the 'gatekeeping' function addressed by the court in McNeil in order to determine which findings meet the test of true relevance. For those findings which meet this test, the prosecution's disclosure obligation will be satisfied by providing the accused with either the 'Memorandum to the subject sheriff regarding the disposition of the complaint' or a summary thereof as was provided by the Solicitor General in this case" - See paragraph 85.

Trials - Topic 1005

Summary convictions - Duty to disclose evidence prior to trial - Sheriff Klatt issued Collins a ticket for speeding under the Traffic Safety Act - Collins sought a remedy for failure by the prosecution to comply with its disclosure obligations - The Alberta Provincial Court addressed the issue of disclosure in speeding ticket cases - The court stated that "Bearing in mind the extraordinary number of violation tickets of this nature issued every year, the prosecution's duty of disclosure will generally be satisfied by providing the accused with a copy of the violation ticket and the sheriff's notes on the obverse of that ticket (if any). If the sheriff has made additional notes about the specific occurrence in a separate notebook (as occurred in this instance), a copy of those notes should be provided as well. The prosecution has more than met its duty of disclosure in this case. After having provided the Applicant with the violation ticket and Sheriff Klatt's notes, the prosecution responded to a written interrogation by counsel for the Applicant about details of the occurrence" - See paragraphs 94 to 97.

Cases Noticed:

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

R. v. Ochotta (I.S.) (2004), 366 A.R. 254; 2004 ABQB 552, refd to. [para. 32].

R. v. Richard (R.), [1996] 3 S.C.R. 525; 203 N.R. 8; 182 N.B.R.(2d) 161; 463 A.P.R. 161, refd to. [para. 33].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, consd. [para. 47].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161, refd to. [para. 51].

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. 51].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236, refd to. [para. 51].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 53].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 53].

R. v. Bjelland (J.C.) (2009), 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230 (S.C.C.), refd to. [para. 53].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 53].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1, refd to. [para. 53].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 54].

R. v. Vanbots Construction Corp., [1996] O.J. No. 347 (Prov. Ct.), consd. [para. 55].

R. v. Crozier, [2003] O.J. No. 1559 (C.J.), consd. [para. 56].

R. v. Hoffman et al., [2006] O.J. No. 5162 (C.J.), leave to appeal denied (2007), 41 M.V.R.(5th) 52 (Ont. C.A.), consd. [para. 58].

R. v. Irwin (2007), 59 M.V.R.(5th) 145 (Ont. C.J.), refd to. [para. 60].

R. v. Gingras (1992), 120 A.R. 300; 8 W.A.C. 300 (C.A.), refd to. [para. 66].

R. v. Polny (2009), 488 A.R. 253 (Q.B.), refd to. [para. 72].

R. v. J.D.C. (2009), 484 A.R. 1; 2009 ABPC 181, refd to. [para. 73].

R. v. Letourneau (P.N.) (2009), 471 A.R. 198; 2009 ABPC 222, refd to. [para. 73].

R. v. Gonzague (1983), 4 C.C.C.(3d) 505 (Ont. C.A.), refd to. [para. 76].

R. v. S.A.S.R. (1996), 94 O.A.C. 307; 111 C.C.C.(3d) 305 (C.A.), refd to. [para. 87].

R. v. Miller (M.) (1998), 116 O.A.C. 331; 131 C.C.C.(3d) 141 (C.A.), refd to. [para. 90].

R. v. Cullen (1989), 36 O.A.C. 195; 52 C.C.C.(3d) 459 (C.A.), refd to. [para. 90].

R. v. Erickson, [1985] B.C.J. No. 1737 (C.A.), refd to. [para. 90].

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. 92].

R. v. S.J.L.-G. et al. (2009), 386 N.R. 1; 2009 SCC 14, refd to. [para. 96].

R. v. Kristman (1984), 55 A.R. 49 (Q.B.), refd to. [para. 96].

R. v. Dixon (S.) (1998), 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241; 122 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 101].

Authors and Works Noticed:

Ferguson Report - see Ontario, Toronto Police Service, Review and Recommendations Concerning Various Aspects of Police Misconduct.

Martin Committee Report - see Ontario (Attorney General), Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of.

Ontario (Attorney General), Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of (Martin Committee Report) (1993), p. 186 [para. 49].

Ontario, Toronto Police Service, Review and Recommendations Concerning Various Aspects of Police Misconduct (Ferguson Report), vol. 1 [para. 70].

Counsel:

E. Gilmour, for the Crown;

T. Engel, for the applicant;

N. Boyle, for the third party.

This application was heard at Wetaskiwin, Alberta, on December 7, 2009, before Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following decision on January 19, 2010.