R. v. Grant (I.M.) et al.,

• Jurisdiction: Manitoba
• Judge: Beard, J.
• Neutral Citation: 2003 MBQB 237
• Citation: 2003 MBQB 237,(2003), 178 Man.R.(2d) 204 (QB),[2006] 1 WWR 96,178 Man R (2d) 204,178 ManR(2d) 204,(2003), 178 ManR(2d) 204 (QB),178 Man.R.(2d) 204
• Date: 17 October 2003
• Court: Court of Queen's Bench of Manitoba (Canada)

R. v. Grant (I.M.) (2003), 178 Man.R.(2d) 204 (QB)

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. OC.031

Her Majesty The Queen v. Ian Matthew Grant, Dale Barry Donovan and Harold Frank Amos (accused)

(CR 03-01-23988; 2003 MBQB 237)

Indexed As: R. v. Grant (I.M.) et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Beard, J.

October 17, 2003.

Summary:

The accused together faced 36 criminal charges relating to a pepper spraying incident, two fire bombings at a convenience store and witness intimidation. The accused brought a pre-trial motion for Crown disclosure of certain information and documents, including, inter alia, affidavits in support of wiretaps, the provision of equipment to access the various forms of electronic disclosure, access to intercepted telephone conversations and video surveillance tapes, the names of unknown witnesses who provided statements to police, the videotaped statements and identity of an unknown witness referred to in an affidavit and the provision of regular sized photographs rather than contact sheets.

The Manitoba Court of Queen's Bench generally discussed the scope of the Crown's duty of disclosure and determined which requests must be complied with to meet that duty.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The Manitoba Court of Queen's Bench stated that an accused had a common law right to make full answer and defence - Although that right was not expressly stated in the Charter of Rights and Freedoms, it has been included as a protected right within the ambit of the principles of fundamental justice in s. 7 - See paragraph 8.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The Manitoba Court of Queen's Bench stated that "a breach of the right to make full answer and defence occurs if the court determines on a balance of probabilities that there is a reasonable possibility that the non-disclosure affected or could affect the outcome of the trial or the overall fairness of the trial process. This determination requires an analysis of the materiality of the undisclosed information, the diligence of the defence in pursuing disclosure, the possible uses of the information to the defence and the impact of the lost opportunities to the defence flowing from the failure to disclose. If the accused proves only that there had been a breach of his right to disclosure, and if this issue is being dealt with before or during the trial, the appropriate remedy is to order disclosure and, possibly, and adjournment. If the accused establishes, on a balance of probabilities, that the non-disclosure has impaired his right to make full answer and defence, the appropriate remedy will depend on the timing of the application, the seriousness of the breach, the degree of impairment and the remedy sought. ... If the accused proves, on a balance of probabilities, that the non-disclosure resulted in irreparable harm to the right to make full answer and defence, then he or she will be entitled to a stay of proceedings." - See paragraphs 19 to 22.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See first Civil Rights - Topic 3133 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Manitoba Court of Queen's Bench generally discussed the Crown's duty to disclose all relevant information in its possession or control to the accused - Particularly, the court discussed (1) the scope of the Crown's duty; (2) when that duty commenced; (3) the accused's obligation of diligence; (4) the timing of disclosure; (5) the ongoing nature of disclosure; (6) what must be disclosed; (7) what need not be disclosed; (8) the Crown's discretion respecting disclosure; (9) the test for relevance pertaining to disclosure; (10) when the withholding of information is justified; (11) the review of the Crown's discretion; (12) the Crown's right to justify nondisclosure; (13) the onus of proof; (14) the standard of review of the Crown's decision not to disclose; (15) disclosure of witness statements; (16) the calling of evidence respecting a disclosure hearing; (17) disclosure of third party records; and (18) the Crown's and defence counsel's ethical and professional obligations in the disclosure process - See paragraph 10.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused were charged with serious offences, including conspiracy to commit murder and arson - The accused verbally requested Crown disclosure of the affidavits in support of wiretaps - The Crown refused disclosure absent a written request - The Manitoba Court of Queen's Bench held that s. 187(1.4) of the Criminal Code entitled the accused to access to the affidavits, but was silent on whether a written application was required - The court held that pursuant to the Queen's Bench Rules (Criminal), the accused had to file and serve a written notice on the Crown - A verbal request was not sufficient - See paragraphs 24 to 31.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused were charged with serious offences, including conspiracy to commit murder and arson - The accused, in custody, were given copies of witness statements in VHS format and equipment to access the information - They were also provided with video surveillance recordings, wiretap intercepts recorded on compact discs and wiretap intercepts using obsolete equipment - Unless the Crown supplied them with the specialized equipment, the accused could not access this information - The Manitoba Court of Queen's Bench held that disclosure in a form not accessible by an accused was not disclosure - The court stated that "disclosure can be provided in many ways. In the case of voice recordings or videotapes, it can include providing transcripts, summaries or copies of the recordings, or by making the originals available at a central location. In the case of documents, it can be by providing copies, summaries, an index, or by making the originals available. Part of the discretion of the Crown in providing disclosure, subject to review by the courts, is to determine how it is to be done, keeping in mind expense to the Crown, the time required to prepare summaries, copies, transcripts, etc., public interest concerns and privacy interests" - The court stated that the Crown must either provide the accused with the electronic equipment required to access the information or lead further evidence justifying its refusal not to provide the equipment - See paragraphs 32 to 42.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused were charged with serious offences, including conspiracy to commit murder and arson - Police converted four segments of a crime scene security tape linking the accused to the crime scene - The accused sought disclosure of unconverted portions of the tape showing who else was at the scene that day - The Manitoba Court of Queen's Bench held that the Crown must either provide a converted copy of the portions of the security tape identified by the accused as relevant or call evidence to support its position that the Crown was not required to do so - See paragraphs 44 to 46.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused were charged with serious offences, including conspiracy to commit murder and arson - The Crown provided the accused with 25 CD-ROM discs containing audio recordings of 150,000 intercepted telephone calls, but the accused, in custody, had no access to the computer equipment needed to access the information and the information was not available in any other format - The Manitoba Court of Queen's Bench held that the Crown's duty of disclosure included providing the accused with reasonable and meaningful access to computers to allow them to access the information - See paragraphs 47 to 52.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused were charged with serious offences, including conspiracy to commit murder and arson - The Crown acknowledged possession of 100,000 intercepted telephone calls recorded on obsolete equipment - The Crown advised that it would take 417 eight hour days to convert the calls to cassettes - The police identified 9,000 of the calls as relevant and the remaining 91,000, on a blanket basis, as irrelevant - The Crown submitted that its duty to disclose was met by providing a written summary of the 9,000 relevant calls and subsequently providing access to the audio recording or a transcript of those the accused determined to be of interest - The accused sought an audio copy of all of the calls - The Manitoba Court of Queen's Bench held that the Crown had to provide the accused with an audio copy of all the calls, together with the use of equipment needed to access the information, or call evidence to support the position that it was not required to do so - The court stated that "I am not satisfied that the Crown has proved that the 91,000 calls are irrelevant or that there was an adequate procedure in place for making that determination." - See paragraphs 47 to 71.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused were charged with serious offences, including conspiracy to commit murder and arson - Police took many photographs of various locations and the accused, which were reproduced on colour contact sheets requiring a magnifying glass to view the pictures - The accused submitted that the Crown's duty to disclose required the provision of regular sized photographs - The Manitoba Court of Queen's Bench stated that "I am not prepared to require the Crown to obtain a full set of regular-sized photographs for the accused. ... I see no reason why the accused cannot follow the procedure that has developed between the Crown and defence, with the Crown providing regular-sized copies of only those photos that the accused require." - See paragraphs 74 to 77.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See second Civil Rights - Topic 3133 ].

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 3].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 82 C.C.C.(3d) 193, refd to. [para. 9].

R. v. Durette et al., [1994] 1 S.C.R. 469; 163 N.R. 321; 70 O.A.C. 1, refd to. [para. 9].

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; 96 C.C.C.(3d) 225, refd to. [para. 9].

R. v. Khela (S.S.) and Dhillon (K.S.), [1995] 4 S.C.R. 201; 188 N.R. 355; 102 C.C.C.(3d) 1, refd to. [para. 9].

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; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1, refd to. [para. 9].

R. v. Baxter (D.R.) (1997), 90 B.C.A.C. 54; 147 W.A.C. 54; 115 C.C.C.(3d) 64 (C.A.), refd to. [para. 9].

R. v. Girimonte (F.) (1997), 105 O.A.C. 337; 121 C.C.C.(3d) 33 (C.A.), refd to. [para. 9].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241; 122 C.C.C.(3d) 1, refd to. [para. 9].

R. v. Leblanc (2001), 162 C.C.C.(3d) 74 (Que. C.A.), refd to. [para. 10].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 80 C.R.(3d) 317; 60 C.C.C.(3d) 161, refd to. [para. 10].

R. v. Gateway Industries Ltd. (2003), 174 Man.R.(2d) 119 (Q.B.), refd to. [para. 11].

R. v. Chan (A.H.) et al. (2002), 322 A.R. 1 (Q.B.), refd to. [para. 12].

R. v. Mercier, [1994] A.Q. No. 240 (C.A.), refd to. [para. 38].

R. v. Keeshig (C.S.) et al. (1999), 94 O.T.C. 108 (Gen. Div.), refd to. [para. 39].

R. v. Rodrigue (J.J.) (1994), 91 C.C.C.(3d) 455 (Yuk. Terr. S.C.), affd. (1994), 53 B.C.A.C. 275; 87 W.A.C. 275; 95 C.C.C.(3d) 129 (Yuk. Terr. C.A.), refd to. [para. 40].

R. v. Jonsson (W.D.) (2000), 200 Sask.R. 101 (Q.B.), revd. (2001), 207 Sask.R. 107; 247 W.A.C. 107 (C.A.), refd to. [para. 41].

R. v. Hallstone Products Ltd. et al., [1999] O.T.C. 104; 140 C.C.C.(3d) 145 (Sup. Ct.), refd to. [para. 41].

R. v. Cassidy, [2001] O.J. No. 5669 (Sup. Ct.), refd to. [para. 41].

R. v. Amzallag, [1999] Q.J. No. 6252 (Sup. Ct.), refd to. [para. 41].

R. v. Cheung (D.) (2000), 267 A.R. 179 (Prov. Ct.), refd to. [para. 41].

R. v. Chow (K.C.S.) et al., [2001] B.C.T.C. 845 (S.C.), refd to. [para. 43].

R. v. Dass (1977), 39 C.C.C.(2d) 465 (Man. Q.B.), refd to. [para. 49].

R. v. Blencowe (A.) (1997), 41 O.T.C. 181; 118 C.C.C.(3d) 529 (Gen. Div.), refd to. [para. 58].

R. v. Siemens (F.) (1998), 209 A.R. 375; 160 W.A.C. 375; 122 C.C.C.(3d) 552 (C.A.), refd to. [para. 68].

Counsel:

Sheilla Leinburd, Diana Cameron and Ami Kotler, for the Crown;

The accused appeared on their own behalf.

This application was heard before Beard, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on October 17, 2003.