R. v. Perreault (M.D.), 2010 ABQB 714

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 10, 2010
• Citations: 2010 ABQB 714;(2010), 497 A.R. 168 (QB)

R. v. Perreault (M.D.) (2010), 497 A.R. 168 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. NO.110

Her Majesty the Queen (Crown/respondent) v. Michael Perreault (accused/respondent) and Chief of Police, Edmonton Police Services (intervenor/applicant) and Constable R. Newell, Constable D. Corcoran and Constable R. Ardill (intervenors/applicants)

(071157713U1; 071157713U2; 2010 ABQB 714)

Indexed As: R. v. Perreault (M.D.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

November 18, 2010.

Summary:

The accused was charged with assault of a police officer, obstruction of a police officer, and possession of stolen property. The accused requested that the Crown disclose information relating to three officers of the Edmonton Police Service (EPS) including: 1. any conviction or finding of guilt under the Criminal Code or the Controlled Drugs and Substances Act which had not been pardoned; 2. any pending charges under the Criminal Code or the Controlled Drugs and Substances Act; 3. any conviction or finding of guilt under any other federal or provincial legislation; 4. any finding of guilt for misconduct under the Police Act or the Royal Canadian Mounted Police Act; 5. any current charge of misconduct under the Police Act or the Royal Canadian Mounted Police Act for which a hearing had been directed, and 6. any current complaint of misconduct relating to allegations of dishonesty, excessive force, or abuse of authority: a. which was still under investigation, b. which was dismissed after a public hearing, or c. where the complaint was dismissed or discontinued. The Chief of the EPS provided a disclosure package to the Crown which included all information sought in the first three items of the request. The package also included records of any EPS Professional Standards Branch convictions under the Police Act and Police Service Regulation (PSR) except where those convictions had been removed from an officer's discipline record following the procedure in s. 22 of the PSR, or disposed of under s. 45(4) of the PSR. The Chief and the Crown refused to provide other requested materials.

The Alberta Provincial Court, in a decision reported at (2010), 491 A.R. 72, held that the Crown had a further obligation pursuant to R. v. Stinchcombe (S.C.C.) to disclose additional materials. The court ordered the Crown and EPS to provide information that detailed: 1. all official warnings issued by a chief of police under the Police Act, s. 45(4), and 2. any records of police discipline which were removed from an officer's discipline record under the procedure provided by s. 22 of the PSR. The Chief of the EPS and the three officers involved applied for orders in the nature of certiorari to quash those parts of the decision dealing with disclosure of official warnings and expunged discipline records. They also sought a declaration that the official warnings and expunged discipline records were "third party records" which were only producible if the accused could demonstrate that such information was likely relevant, i.e. in accordance with the procedure established by the Supreme Court of Canada in R. v. O'Connor.

The Alberta Court of Queen's Bench declared that the Provincial Court Judge erred when he concluded that official warnings under s. 45(4) of the Police Act and violations of the Police Act which had been removed from a police officer's record pursuant to s. 22 of the PSR were types of information for pretrial disclosure to the Crown. Those aspects of the decision directing that expunged police disciplinary records and official warnings be subject to Stinchcombe disclosure were quashed. The court further declared that the official warnings and expunged discipline records were "third party records" which were only producible if the accused could demonstrate that such information was likely relevant, i.e., in accordance with the procedure established by the Supreme Court of Canada in R. v. O'Connor.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See all Criminal Law - Topic 5384 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See all Criminal Law - Topic 5384 ].

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - [See first Criminal Law - Topic 5384 ].

Criminal Law - Topic 5384

Evidence and witnesses - Documents and reports - Police employment and disciplinary records - The Alberta Court of Queen's Bench declared that official warnings and expunged discipline records of police officers were "third party records" which were only producible if the accused could demonstrate that such information was likely relevant, i.e., in accordance with the procedure established by the Supreme Court of Canada in R. v. O'Connor - See paragraph 140.

Criminal Law - Topic 5384

Evidence and witnesses - Documents and reports - Police employment and disciplinary records - The Alberta Court of Queen's Bench held that "there is no obligation on a police agency to automatically provide to the Crown as part of its Stinchcombe disclosure all official warnings to a police officer. That is not to say that official warnings would never be subject to Stinchcombe disclosure, rather an official warning may be subject to Stinchcombe disclosure where that warning has a special relevance to the defence of an accused person, for example where an official warning arises from interactions between a police officer and the particular accused" - See paragraph 110.

Criminal Law - Topic 5384

Evidence and witnesses - Documents and reports - Police employment and disciplinary records - The Alberta Court of Queen's Bench held that there was no obligation on a police agency to automatically provide to the Crown as part of its "Stinchcombe" disclosure all records of police misconduct and discipline that had been removed and destroyed pursuant to s. 22 of the Police Service Regulation - Any such expunged record was analogous to a pardoned criminal offense and was no longer relevant to any accused person who was involved with the police officer - See paragraph 126.

Police - Topic 2212

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

Police - Topic 4065.2

Internal organization - Discipline of members - Entry on employment record (incl. expungement) - Myers, P.C.J., concluded that any records of police discipline which were removed from an officer's discipline record pursuant to s. 22 of the Police Service Regulation (PSR) were subject to mandatory "Stinchcombe" disclosure - One basis on which Judge Myers concluded that a criminal pardon and the s. 22 regime differed was that s. 22(d) of the PSR only prohibited reference to expunged records in "any future proceeding respecting that police officer" - Judge Myers concluded that the prohibition did not extend to proceedings that related to other persons - On an application for judicial review, the Alberta Court of Queen's Bench stated that "I do not agree with that interpretation of s. 22(d), as s. 22(c) requires the discipline records be destroyed, which implicitly prohibits disclosure to anyone after that point" - See paragraphs 118 to 119.

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. 5].

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; 130 D.L.R.(4th) 235, refd to. [para. 6].

R. v. M.H.C. (1989), 46 C.C.C.(3d) 142 (B.C.C.A.), refd to. [para. 8].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 83 D.L.R.(4th) 193, refd to. [para. 10].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 11].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, consd. [para. 12].

R. v. Polny (2009), 488 A.R. 253; 2009 CanLII 81890 (Q.B.), 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. 20].

R. v. R.L.F. (2003), 350 A.R. 310; 2003 ABPC 196, refd to. [para. 21].

R. v. Michaud (R.) (2010), 491 A.R. 201; 2010 ABPC 147, refd to. [para. 27].

R. v. Collins (P.) (2010), 492 A.R. 199; 2010 ABPC 19, refd to. [para. 30].

R. v. Steele (K.) (2010), 488 A.R. 296; 2010 ABQB 39, refd to. [para. 35].

R. v. Auger (A.A.), [2010] A.R. Uned. 474; 2010 ABPC 196, refd to. [para. 36].

R. v. Yip (T.) et al. (2010), 504 A.R. 161; 2010 ABPC 292, refd to. [para. 40].

Edwards et al. v. Law Enforcement Review Board (Alta.) et al. (2010), 477 A.R. 247; 483 W.A.C. 247; 2010 ABCA 77, refd to. [para. 41].

R. v. Melvin (C.P.) (2009), 281 N.S.R.(2d) 42; 893 A.P.R. 42; 2009 NSSC 249, refd to. [para. 50].

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241; 130 D.L.R.(4th) 422, refd to. [para. 58].

R. v. Scurr (J.L.) et al. (2008), 441 A.R. 203; 2008 ABQB 127, refd to. [para. 58].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 59].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 59].

Hansard Spruce Mills Ltd., Re, [1954] 4 D.L.R. 590; 34 C.B.R. 202 (B.C.S.C.), refd to. [para. 66].

R. v. Powder (M.M.) (2008), 455 A.R. 84; 2008 ABQB 407, refd to. [para. 70].

Searles v. Alberta (Minister of Health and Wellness) (2010), 485 A.R. 166; 2010 ABQB 157, refd to. [para. 72].

R. v. Letourneau (P.N.) (2008), 447 A.R. 218; 2008 ABPC 192, refd to. [para. 72].

R. v. Northern Electric Co. et al. (1955), 111 C.C.C. 241 (Ont. H.C.), refd to. [para. 72].

R. v. Furtney et al., [1991] 3 S.C.R. 89; 129 N.R. 241; 51 O.A.C. 299, refd to. [para. 76].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 99].

Holmes v. Jarrett, [1993] I.L.R. 2371; 68 O.R.(3d) 667 (Gen. Div.), refd to. [para. 133].

R. v. Kehler (V.L.) (2009), 242 Man.R.(2d) 15; 2009 MBPC 29, refd to. [para. 133].

Ludwig et al. v. Bos (2010), 286 B.C.A.C. 193; 484 W.A.C. 193; 2010 BCCA 203, refd to. [para. 135].

Carten (John) Personal Law Corp. et al. v. British Columbia (Attorney General) et al. (1997), 98 B.C.A.C. 1; 161 W.A.C. 1; 40 B.C.L.R.(3d) 181; 153 D.L.R.(4th) 460 (C.A.), refd to. [para. 135].

R. v. Nguyen (T.T.) et al. (2001), 294 A.R. 201; 2001 ABPC 52, refd to. [para. 136].

R. v. Kanak (D.K.) (2003), 340 A.R. 286; 2003 ABPC 122, refd to. [para. 136].

R. v. Saxby (E.S.) (2006), 398 A.R. 344; 2006 ABPC 201, refd to. [para. 136].

R. v. Houde (A.A.) (2008), 451 A.R. 28; 2008 ABPC 280, revd. (2009), 468 A.R. 185; 2009 ABQB 269, refd to. [para. 136].

R. v. Perehudoff (S.M.), [2008] A.R. Uned. 732; 2008 ABPC 349, refd to. [para. 136].

R. v. Marroquin (J.G.), [2010] A.R. Uned. 495; 96 M.V.R.(5th) 285; 2010 ABPC 223, refd to. [para. 136].

Statutes Noticed:

Police Act, R.S.A. 2000, c. P-17, sect. 45(4) [para. 4].

Police Act Regulations (Alta.), Police Service Regulation, Reg. 356/90, sect. 22 [para. 52].

Police Service Regulation - see Police Act Regulations (Alta.).

Authors and Works Noticed:

Parkes, Debra, Precedent Unbound? Contemporary Approaches to Precedent in Canada (2007), 32 Man. L.J. 135, p. 162 [para. 131].

Counsel:

Robert Sera (Crown Prosecutor's Office), for the respondent;

A. Millman (Engel Brubaker), for the appellant;

Katrina M. Haymond (Field LLP), for the intervenor, Chief of Police, Edmonton Police Services;

Ritu Khullar (Chivers Carpenter), for the intervenors, Constable R. Newell, Constable D. Corcoran, and Constable R. Ardill.

This application was heard on September 10, 2010, before Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on November 18, 2010.