R. v. Kelly (S.), (2015) 360 Nfld. & P.E.I.R. 165 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: January 05, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 360 Nfld. & P.E.I.R. 165 (NLPC);2015 NLPC 1313

R. v. Kelly (S.) (2015), 360 Nfld. & P.E.I.R. 165 (NLPC);

    1118 A.P.R. 165

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. JA.028

Her Majesty the Queen v. Sean Kelly

(2015 NLPC 1313A0227)

Indexed As: R. v. Kelly (S.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

January 27, 2015.

Summary:

The accused, a police officer, was charged with making an indecent telephone call (Criminal Code, s. 372(2)), and making a false statement to the police (s. 140(1)(b)). The essence of the allegations was that the accused made an indecent telephone call to a young woman at her place of employment and subsequently misled the police by making a false statement implicating another person (X). The Crown intended to call X at the trial. X was expected to deny having made the telephone calls. The Crown also intended to call JF and BC, who were expected to testify that X was with them when the indecent telephone calls were allegedly made. The accused applied for access to files in the possession of the police that related to his contact as a police officer with X and JF.

The Newfoundland and Labrador Provincial Court dismissed the applications.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Editor's Note: For related decisions in this matter see (2015), 360 Nfld. & P.E.I.R. 91; 1118 A.P.R. 91 and (2015), 360 Nfld. & P.E.I.R. 145; 1118 A.P.R. 145.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See second Criminal Law - Topic 4505 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Newfoundland and Labrador Provincial Court summarized the law regarding the Crown's disclosure obligations - See paragraph 22.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - Kelly, a police officer, was charged with making an indecent telephone call in October 2012 and making a false statement to the police - The essence of the allegations was that Kelly made an indecent telephone call to a young woman at her place of employment and subsequently misled the police by making a false statement implicating another person (X) - The Crown intended to call X at the trial - X was expected to deny having made the telephone calls - The Crown also intended to call JF and BC, who were expected to testify that X was with them when the indecent telephone calls were allegedly made - Kelly applied for access to files in the possession of the police that related to his contact as a police officer with X and JF - The Newfoundland and Labrador Provincial Court dismissed the applications - Kelly failed to establish that the police files were likely relevant to the charges for which he was being tried - The fact that Kelly was involved in a file concerning JF in 2009 and X in 2010 did not mean that animus existed - The evidence indicated that Kelly had no contact with JF and only brief contact with X - No charges were laid in either case - If X told another officer that he hated Kelly, that might be relevant to X's overall evidence, but not necessarily to X's denial of having made the telephone call.

Criminal Law - Topic 5371

Evidence and witnesses - Documents and reports - Documents in possession of Crown - [See second Criminal Law - Topic 4505 ].

Police - Topic 2212

Duties - General duties - Disclosure of information - [See second 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. 20].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 112 C.C.C.(3d) 289, refd to. [para. 20].

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, refd to. [para. 21].

R. v. Davey (T.G.) (2010), 272 O.A.C. 108 (C.A.), refd to. [para. 22].

R. v. Yumnu (I.) et al. (2010), 269 O.A.C. 48 (C.A.), refd to. [para. 22].

R. v. Darwish (W.H.) (2010), 258 O.A.C. 272 (C.A.), refd to. [para. 23].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 25].

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. 25].

R. v. Dhillon (K.) (2011), 263 Man.R.(2d) 14 (Q.B.), refd to. [para. 30].

R. v. Caplan-Bickerdike (I.) (2012), 328 Nfld. & P.E.I.R. 275; 1019 A.P.R. 275; 2012 NLTD(G) 144, refd to. [para. 31].

R. v. Carey (S.) (2012), 321 Nfld. & P.E.I.R. 183; 996 A.P.R. 183 (N.L. Prov. Ct.), refd to. [para. 32].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 33].

R. v. W.G., [2000] N.J. No. 86 (S.C.), refd to. [para. 33].

L.L.A. v. Beharriell (1995), 190 N.R. 329; 88 O.A.C. 241; 103 C.C.C.(3d) 92 (S.C.C.), refd to. [para. 33].

R. v. Quesnelle (V.) (2014), 460 N.R. 27; 320 O.A.C. 38; 2014 SCC 46, refd to. [para. 35].

R. v. Worden (S.), [2014] Sask.R. TBEd. AU.028; 2014 SKPC 143, refd to. [para. 36].

R. v. Noftall (R.), [2013] Nfld. & P.E.I.R. Uned. 9; 2013 NLTD(G) 18, refd to. [para. 45].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 45].

Counsel:

V. Khaladkar, for Her Majesty the Queen;

J. Merrigan, for Mr. Kelly;

R. Huntsman, for the Royal Newfoundland Constabulary.

These applications were heard at Corner Brook, N.L., on January 5, 2015, before Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who released the following judgment on January 27, 2015.