R. v. Letourneau (P.N.), (2009) 471 A.R. 198 (PC)

JudgeAllen, P.C.J.
CourtProvincial Court of Alberta (Canada)
Case DateJuly 31, 2009
Citations(2009), 471 A.R. 198 (PC);2009 ABPC 222

R. v. Letourneau (P.N.) (2009), 471 A.R. 198 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AU.083

Her Majesty The Queen v. Pamela Nicole Letourneau (060422946P1; 2009 ABPC 222)

Indexed As: R. v. Letourneau (P.N.)

Alberta Provincial Court

Allen, P.C.J.

July 31, 2009.

Summary:

The accused was charged with assaulting a peace officer, mischief and two counts of assault. The accused alleged that the officers involved used excessive force, which violated her rights under ss. 7 (life, liberty and security of the person) and 12 (cruel and unusual treatment or punishment) of the Charter. She sought a stay, acquittal or sentence reduction under s. 24(1). The accused sought disclosure of any complaints made alleging that the officers used excessive force or abused their authority (disciplinary records). She also sought disclosure of whether the officers were subject to any alert from the Edmonton Police Service professional standards branch. An alert was not a disciplinary record, but a computer generated record identifying police officers who might need additional training or alternative approaches or policies. The accused and Crown disagreed over whether disclosure was governed by the lower threshold in Stinchcombe or the higher threshold (two stages) in O'Connor, which applied to third party records.

The Alberta Provincial Court, in a judgment reported (2008), 447 A.R. 218, held that the police disciplinary records and the alert records were not first party records subject to disclosure under Stinchcombe. They were third party records that could only be disclosed upon application of the two stage O'Connor threshold test. Subsequent to that decision, the Supreme Court of Canada rendered its decision on disclosure of police records in R. v. McNeil (L.) (2009), 383 N.R. 1; 246 O.A.C. 154 (new disclosure duties on police and Crown re police misconduct records). Relying on McNeil, the accused sought disclosure of any convictions, findings of guilt or outstanding charges under the Criminal Code, Controlled Drugs and Substances Act or any other federal or provincial statute, and any finding of guilt or outstanding charges for misconduct under the Police Act (category 1 documents). The accused also sought disclosure of any misconduct complaint involving dishonesty, excessive force or abuse of authority that was still being investigated, similar complaints dismissed after a public hearing and complaints dismissed without a hearing for the listed reasons, including loss of jurisdiction, biased or inadequate investigations, informal resolution, etc. (category 2 documents). The Crown responded that there would be no further disclosure, as there were no findings, convictions or outstanding charges under any federal or provincial statutes, no findings of guilt or misconduct after a hearing under the Police Act, and no current charges of misconduct for which a Notice of Hearing was issued. The accused, again relying on McNeil sought disclosure, requesting that the Crown "obtain from the police and disclose information relating to any complaints made to the Edmonton Police Service against [the officers involved] under the Police Act and/or the Criminal Code and identify any civil claims engaging their conduct relating to allegations of excessive force, abuse of authority or dishonesty".

The Alberta Provincial Court dismissed the application.

Criminal Law - Topic 129

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

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Provincial Court summarized the Stinchcombe duties of the Crown and police as follows: "the Crown has an obligation to disclose all relevant information in their possession or control relating to the investigation. The Crown does not have an obligation to disclose information that is not in their control. All state authorities do not comprise a single Crown entity. This type of disclosure was referred to as first party production. The relevant evidence for disclosure purposes include not only evidence that the Crown intended to adduce but any information of which there is a reasonable possibility would assist the accused in his right to make full answer and defence. ... Stinchcombe disclosure is automatic, and admits of very few exceptions. Unless evidence is clearly irrelevant, privileged, or otherwise governed by law, the Crown must disclose the material in its possession. ... The necessary corollary of the Crown's disclosure duty is the obligation of the police (or other investigating state authority) to disclose to the Crown all material in its possession pertaining to the investigation of the accused. The police are distinct and independent of the Crown in fact and in law. For the purpose of fulfilling their disclosure duty relating to the fruits of the investigation, the police are not a third party; rather, they act on the same footing as the Crown. ... The accused's interest in disclosure of the Stinchcombe material in the hands of the Crown outweighs any privacy interest in the material. The Crown's broad duty to disclose this material despite privacy interests is based upon two assumptions: (a) the material in the hands of the prosecuting Crown is relevant to the accused's case otherwise the Crown would not have it; (b) this material will likely comprise the case against the accused." - See paragraph 19.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - An accused sought first party Stinchcombe disclosure requiring that the Crown "obtain from the police and disclose information relating to any complaints made to the Edmonton Police Service against [the officers involved] under the Police Act and/or the Criminal Code and identify any civil claims engaging their conduct relating to allegations of excessive force, abuse of authority or dishonesty" - The information sought was unrelated to the incident giving rise to charges against the accused, but the accused alleged that the officers used excessive force or abused their authority - The Crown submitted that the information was collateral evidence which need not be disclosed, as it would sidetrack the trial with irrelevant allegations of police misconduct having no affect on the charges against the accused - The Alberta Provincial Court held that there was a duty to produce "records relating to findings of serious misconduct that could reasonably impact on the case against the accused" - The court dismissed the application - Under the principles in McNeil (S.C.C.), the information sought was not of the type that should be produced pursuant to the first party disclosure package - The accused still could bring an O'Connor application, which required proof of "likely relevance" - The court held that the police were not required under McNeil to disclose: (1) complaints of misconduct not yet heard; (2) official warnings issued by the police chief; (3) dismissals of complaints without a hearing on the merits; (4) information respecting civil orders, which were not findings of misconduct nor analogous to a notice of hearing; and (5) disciplinary records expunged under the Police Service Regulation after five years - See paragraphs 64 to 152.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Provincial Court stated that "information relating to misconduct of police officers that could reasonably impact on the case against the accused must be part of the first party Stinchcombe disclosure package" - See paragraph 60.

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - The Alberta Provincial Court summarized the disclosure of third party records under O'Connor as follows: "the applicant must justify to the court the use of state power to compel production of documents in the hands of third parties. ... The application takes place in two stages. In the first stage the applicant must satisfy the court that the targeted documents are 'likely relevant' which is a significant (important) but not an onerous task. This test is met when the applicant shows 'a reasonable possibility' that the record may contain information logically probative to the unfolding of the events at trial, to the credibility of a witness, or to the reliability of other evidence at trial. In the first stage, the judge plays a gatekeeper role to prevent speculative, fanciful, disruptive, unmeritorious, and time-consuming orders for production thereby preventing the undue protraction of criminal proceedings. ... The applicant need not demonstrate the specific use to which the targeted record might be put. If the applicant is successful in the first stage, the judge can order production of the targeted records in order to decide whether to produce those records to the accused. In the second stage, the judge weighs competing interests. ... 'a more useful starting point for courts in balancing competing interests at the second stage of an O'Connor application will be to assess the true relevancy of the targeted record in the case against the accused. This approach allows the court to remain focussed on the trial of the accused and, given the competing interests at stake, the relevancy assessment will usually be largely determinative of the production issue.' ... this approach would make the judge's balancing of interests easier. If the inspection of the documents reveals that they are clearly irrelevant, the application can be summarily dismissed. ... On the other hand, if likely relevance is borne out, then the accused's right to full answer and defence, with few exceptions, tips the balance in favour of allowing the application for production. The existence of third party privacy interests is unlikely to defeat production; such interests can be protected by redactions or conditions to ensure no unnecessary invasion of privacy follows the production. ... In effect, the finding of true relevance of the records by the judge in the second stage places the third party in the same category for disclosure purposes as the fruits of the investigation in the hands of the prosecuting Crown. ... The applicant must lay a foundation for the production of the document and the judge should have some regard for the governing rules of evidence and procedure. The materials need not be admissible on their own, but can be of assistance to the defence nonetheless, for example, for cross-examination purposes." - See paragraphs 22 to 25.

Criminal Law - Topic 5384

Evidence and witnesses - Documents and reports - Police employment and disciplinary records - The Alberta Provincial Court stated that where police misconduct arose from the incident for which an accused was charged, the records, statements and information of the officers forming part of the original investigation file should be disclosed under the Stinchcombe principles - If the information was not automatically disclosed, an O'Connor application would be required - Since an O'Connor application would almost inevitably result in some of the contents of the internal investigation file being disclosed, the nondisclosure at first instance would waste valuable court time - See paragraphs 50 to 59.

Police - Topic 2212

Duties - General duties - Disclosure of information - [See Criminal Law - Topic 5384 ].

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. 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. 10].

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. 10].

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. 10].

R. v. R.L.F. (2003), 350 A.R. 310 (Prov. Ct.), refd to. [para. 52].

R. v. Pringle (J.D.), [2003] 7 W.W.R. 496; 324 A.R. 352; 10 C.R.(6th) 53 (Prov. Ct.), refd to. [para. 65].

R. v. Weaver (T.J.) (2005), 363 A.R. 253; 343 W.A.C. 253; 194 C.C.C.(3d) 350 (C.A.), refd to. [para. 65].

R. v. Nasogaluak (L.M.) (2007), 422 A.R. 222; 415 W.A.C. 222; 229 C.C.C.(3d) 52; 2007 ABCA 339, refd to. [para. 65].

R. v. Scopelliti (1981), 63 C.C.C.(2d) 481 (Ont. C.A.), refd to. [para. 68].

R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61; 29 C.C.C.(3d) 385, refd to. [para. 71].

R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161; 82 C.C.C.(3d) 215, refd to. [para. 71].

R. v. McIntosh (C.) (1999), 128 O.A.C. 69; 141 C.C.C.(3d) 97 (C.A.), leave to appeal refused [2000] 1 S.C.R. xvii; 260 N.R. 397; 141 O.A.C. 397; 146 C.C.C.(3d) vi, refd to. [para. 71].

R. v. McDonald (R.J.) (2007), 412 A.R. 188; 404 W.A.C. 188; 219 C.C.C.(3d) 369 (C.A.), refd to. [para. 71].

R. v. Pargelen (G.) (1996), 95 O.A.C. 200; 112 C.C.C.(3d) 263 (C.A.), refd to. [para. 71].

R. v. Prebtani (A.) (2008), 243 O.A.C. 207; 2008 ONCA 735, refd to. [para. 71].

R. v. Seaboyer and Gayme (1991), 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 71].

R. v. Gonzague (1983), 4 C.C.C.(3d) 505 (Ont. C.A.), refd to. [para. 74].

R. v. Meddoui, [1991] 3 S.C.R. 320, refd to. [para. 76].

R. v. B.A.W., [1992] 3 S.C.R. 811; 145 N.R. 87; 59 O.A.C. 323, refd to. [para. 78].

R. v. A.R.B. (1998), 113 O.A.C. 286; 128 C.C.C.(3d) 457 (C.A.), affd. [2000] 1 S.C.R. 781; 255 N.R. 201; 135 O.A.C. 144; 146 C.C.C.(3d) 191; 48 O.R.(3d) 640, refd to. [para. 79].

Attorney General v. Hitchcock (1847), 1 Exch. 91; 154 E.R. 38 (H.L.), refd to. [para. 81].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 83].

R. v. D.R., H.R. and D.W. (1996), 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81; 107 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 88].

R. v. McMillan (1975), 23 C.C.C.(2d) 160 (Ont. C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [para. 92].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 93].

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. 129].

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. 129].

R. v. Hoilett (1991), 46 O.A.C. 168; 4 C.R.(4th) 372 (C.A.), refd to. [para. 133].

R. v. J.D.C. (2009), 484 A.R. 1; 2009 ABPC 181 (Prov. Ct.), refd to. [para. 134].

Authors and Works Noticed:

Delisle, R.J., Annotation to R. v. Rattan (1989), 68 C.R.(3d) 84, p. 85 [para. 84].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (3rd Ed. 2002), p. 350 [para. 84].

Paciocco, David M., Stinchcombe on Steroids: The Surprising Legacy of McNeil (2009), 62 C.R.(6th) 26, generally [paras. 6, 26].

Counsel:

T. Engel, for the applicant;

J. Morgan, for the respondent;

K. Hammond, for the Chief of Edmonton Police Service, intervenor;

R. Khullar, P. Nugent and V. Cosco, for Cst. McKee and Cst. Arthurs, intervenors.

This application was heard at Edmonton, Alberta, before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on July 31, 2009.

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17 practice notes
  • Table of cases
    • Canada
    • Irwin Books Archive Criminal Procedure. Second Edition
    • September 2, 2012
    ...16, [1976] O.J. No. 74 (C.A.) .............................................................................. 362 R. v. Letourneau, 2009 ABPC 222 ..................................................................... 250 R. v. Levene (1983), 36 C.R. (3d) 386, [1983] O.J. No. 139 (C.A.) ............
  • Table of cases
    • Canada
    • Irwin Books Archive Criminal Procedure. Third Edition
    • August 29, 2016
    ...[1986] AJ No 27 (CA) ........229, 241 R v Lessard (1976), 30 CCC (2d) 70, 33 CRNS 16, [1976] OJ No 74 (CA) .........406 R v Letourneau, 2009 ABPC 222 .......................................................................288 R v Levene (1983), 36 CR (3d) 386, [1983] OJ No 139 (CA) ...............
  • R. v. Perreault (M.D.), 2010 ABQB 714
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 10, 2010
    ...refd to. [para. 18]. R. v. J.D.C. (2009), 484 A.R. 1 ; 2009 ABPC 181 (Prov. Ct.), refd to. [para. 19]. R. v. Letourneau (P.N.) (2009), 471 A.R. 198; 2009 ABPC 222 , refd to. [para. R. v. R.L.F. (2003), 350 A.R. 310 ; 2003 ABPC 196 , refd to. [para. 21]. R. v. Michaud (R.) (2010), 491......
  • R. v. Collins (P.) et al., (2010) 492 A.R. 199 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • December 7, 2009
    ...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), ......
  • Request a trial to view additional results
13 cases
  • R. v. Collins (P.) et al., (2010) 492 A.R. 199 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • December 7, 2009
    ...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), ......
  • R. v. Perreault (M.D.), 2010 ABQB 714
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 10, 2010
    ...refd to. [para. 18]. R. v. J.D.C. (2009), 484 A.R. 1 ; 2009 ABPC 181 (Prov. Ct.), refd to. [para. 19]. R. v. Letourneau (P.N.) (2009), 471 A.R. 198; 2009 ABPC 222 , refd to. [para. R. v. R.L.F. (2003), 350 A.R. 310 ; 2003 ABPC 196 , refd to. [para. 21]. R. v. Michaud (R.) (2010), 491......
  • R. v. Levin (A.), 2013 ABQB 31
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 7, 2013
    ...to. [para. 38]. R. v. Black (W.J.) (2011), 515 A.R. 319; 532 W.A.C. 319; 2011 ABCA 349, refd to. [para. 39]. R. v. Letourneau (P.N.) (2009), 471 A.R. 198; 2009 ABPC 222, refd to. [para. R. v. Drader (A.N.) et al. (2012), 535 A.R. 185; 2012 ABQB 469, refd to. [para. 27]. R. v. Boyne (B.) (20......
  • R. v. Steele (K.), 2010 ABQB 39
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 11, 2010
    ...42; 2009 NSSC 249, disagreed with [para. 46]. R. v. Polny (2009), 488 A.R. 253 (Q.B.), refd to. [para. 47]. R. v. Letourneau (P.N.) (2009), 471 A.R. 198; 2009 ABPC 222, refd to. [para. Statutes Noticed: Police Act, R.S.A. 2000, c. P-17, sect. 45(4) [para. 42]. Police Act Regulations (Alta.)......
  • Request a trial to view additional results
4 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Archive Criminal Procedure. Second Edition
    • September 2, 2012
    ...16, [1976] O.J. No. 74 (C.A.) .............................................................................. 362 R. v. Letourneau, 2009 ABPC 222 ..................................................................... 250 R. v. Levene (1983), 36 C.R. (3d) 386, [1983] O.J. No. 139 (C.A.) ............
  • Table of cases
    • Canada
    • Irwin Books Archive Criminal Procedure. Third Edition
    • August 29, 2016
    ...[1986] AJ No 27 (CA) ........229, 241 R v Lessard (1976), 30 CCC (2d) 70, 33 CRNS 16, [1976] OJ No 74 (CA) .........406 R v Letourneau, 2009 ABPC 222 .......................................................................288 R v Levene (1983), 36 CR (3d) 386, [1983] OJ No 139 (CA) ...............
  • Disclosure and Production
    • Canada
    • Irwin Books Archive Criminal Procedure. Third Edition
    • August 29, 2016
    ...internal affairs; investigator recommendations regarding a complaint ( R v Taing , 2011 ABPC 165); expunged records ( R v Letourneau , 2009 ABPC 222, and R v Perreault , 2010 ABQB 714); off‌icial warnings and other non-serious misconduct ( R v Polny , [2009] AJ No 1511 (QB)); police dog rec......
  • Disclosure and Production
    • Canada
    • Irwin Books Archive Criminal Procedure. Second Edition
    • September 2, 2012
    ...affairs, investigator recommendations regarding a complaint, ( R. v. Taing , 2011 ABPC 165); expunged records, ( R. v. Letourneau , 2009 ABPC 222 and R. v. Perreault , 2010 ABQB 714); official warnings and other non-serious misconduct ( R. v. Polny , [2009] A.J. No. 1511); police dog record......

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