R. v. Taing (N.), (2011) 520 A.R. 27 (PC)

• Judge: Shriar, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 12, 2011
• Citations: (2011), 520 A.R. 27 (PC);2011 ABPC 165

R. v. Taing (N.) (2011), 520 A.R. 27 (PC)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JN.030

Her Majesty the Queen v. Ny Taing (A28065866Z; A28065881Z; 2011 ABPC 165)

Indexed As: R. v. Taing (N.)

Alberta Provincial Court

Shriar, P.C.J.

May 12, 2011.

Summary:

Taing faced two violation tickets issued after he was stopped by police while riding his bicycle. Defence counsel applied for disclosure of certain records arising from the investigation into a complaint of misconduct which Taing filed against the officers involved in his arrest ("same incident complaint" disclosure). The documents fell into four categories: (1) the statements the officers were compelled to provide to the Internal Affairs unit pursuant to the Police Service Regulation, (2) the statements set out in or attached to the officers' lawyer's "without prejudice" letter to the Crown and the investigators regarding the possibility of criminal charges; (3) the report and recommendation of the Internal Affairs investigator to the Chief of Police recommending that the matter not proceed further; and (4) the "criminal file".

The Alberta Provincial Court held that, particularly in view of the minor nature of the charges against Taing, and the results of the internal police investigation of his complaints (the allegations against the officers were dismissed after an initial investigation with no disciplinary action taken), the application for disclosure was dismissed. The court stated that "In these circumstances, I find that the public and privacy interests, and in some cases privilege, attaching to the records sought outweigh the accused's claims. Further, the recommendation is that in similar circumstances, applications for disclosure of records should be brought via the so-called O'Connor procedure".

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - Taing faced two violation tickets issued after he was stopped by police while riding his bicycle - Defence counsel applied for disclosure of certain records arising from the investigation into a complaint of misconduct which Taing filed against the officers involved in his arrest - The documents included statements the officers were compelled to provide to the Internal Affairs unit pursuant to the Police Service Regulation - The Alberta Provincial Court dismissed the application - The statements compelled from the police officers might be relevant and they were not protected from disclosure by statute - However, "balanced against the accused's rights to disclosure of relevant records, is the fact that the statements compelled from the officers serve a different purpose than ordinary police notes and observations made in the course of their duties. Also weighing against disclosure is the public interest in preserving the integrity of the internal police disciplinary process, the public interest in officer candour in the context of internal disciplinary proceedings and the need to keep the trial focussed on the accused's alleged delicts. In all the circumstances discussed above, including that Mr. Taing's complaint against the officers was dismissed, I find it appropriate to draw the line here and decline to order disclosure of the statements" - See paragraphs 94 to 98.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - Taing faced two violation tickets issued after he was stopped by police while riding his bicycle - Defence counsel applied for disclosure of certain records arising from the investigation into a complaint of misconduct which Taing filed against the officers involved in his arrest - The documents included the report and recommendation of the Internal Affairs investigator to the Chief of Police recommending that the matter not proceed further - The Alberta Provincial Court dismissed the application - The court stated that "It is not alleged the investigator was a witness to the alleged offense, let alone to the officers' conduct subject of the complaints. It is not alleged the investigator ever communicated directly with the officers. That is, the report seems to constitute the investigator's conclusions based on his review of the file materials. It is not clear to me this record even passes a threshold test of relevance. That tilts the balance significantly in favour of the countervailing factors discussed above including the context of the creation of these records in the course of a separate investigation, the public interests in preserving confidentiality in connection with that process, the minor nature of the charges and potential jeopardy faced by Mr. Taing" - See paragraphs 99 to 103.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - Taing faced two violation tickets issued after he was stopped by police while riding his bicycle - Defence counsel applied for disclosure of certain records arising from the investigation into a complaint of misconduct which Taing filed against the officers involved in his arrest - The documents included the "criminal file" - The Alberta Provincial Court dismissed the application - The court stated that "It is hard to imagine what the file might contain of possible relevance beyond material already disclosed to the defence and different from the three types of records considered above. Accordingly, and in the absence of more information, it seems the file contents is either covered by plea bargain privilege or too remotely related to Mr. Taing's defence of the bicycle equipment charges" - See paragraphs 104 to 106.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - Taing faced two violation tickets issued after he was stopped by police while riding his bicycle - Defence counsel sought disclosure of certain records arising from the investigation into a complaint Taing filed against the officers involved in his arrest, which alleged misconduct regarding the officers' interaction with Taing ("same incident complaint" disclosure) - The Alberta Provincial Court held that particularly in view of the minor nature of the charges against Taing, and the results of the internal police investigation of his complaints (the allegations against the officers were dismissed after an initial investigation with no disciplinary action taken), the application for disclosure was dismissed - The court further recommended that in similar circumstances, applications for disclosure of records should be brought via the "O'Connor procedure" - The court stated, inter alia, that "Certainly in a regulatory or provincial offence such as the tickets under consideration here where the complaints by the accused were dismissed, and given the number of interests and issues mitigating against disclosure of the records in issue, I think that an applicant seeking disclosure should be required to bring an O'Connor application to have a court review the records and assess the merits of the respective positions regarding disclosure" - See paragraphs 107 to 124.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See all Criminal Law - Topic 129 ].

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - [See fourth Criminal Law - Topic 129 ].

Criminal Law - Topic 5384

Evidence and witnesses - Documents and reports - Police employment and disciplinary records - [See all Criminal Law - Topic 129 ].

Evidence - Topic 3626

Documentary evidence - Private documents - Letters or documents written without prejudice - Settlement negotiations - [See Evidence - Topic 4245 ].

Evidence - Topic 4245

Witnesses - Privilege - Lawyer-client communications - Privilege - Offers of settlement or settlement negotiations - Taing faced two violation tickets issued after he was stopped by police while riding his bicycle - Defence counsel applied for disclosure of certain records arising from the investigation into a complaint of misconduct which Taing filed against the officers involved in his arrest - The documents included the statements set out in or attached to the officers' lawyer's "without prejudice" letter to the Crown and the investigators regarding the possibility of criminal charges - The Alberta Provincial Court dismissed the application - Any statements either attached to or summarized in the lawyer's correspondence to the Crown or investigators were sent on a without prejudice basis, pursuant to trust conditions regarding confidentiality and for the sole purpose of effecting a satisfactory resolution of the possible charges against the four officers - Accordingly, the records were protected from further disclosure by principles of plea bargain privilege, and no exceptional circumstances were present that might override that privilege - See paragraphs 102 to 103.

Trials - Topic 1005

Summary convictions - Duty to disclose evidence prior to trial - [See all Criminal Law - Topic 129 ].

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. 22].

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. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 27].

R. v. Polny (2009), 488 A.R. 253 (Q.B.), refd to. [para. 33].

R. v. Letourneau (P.N.) (2009), 471 A.R. 198; 2009 ABPC 222, refd to. [para. 33].

R. v. Perreault (M.D.) (2010), 497 A.R. 168 (Q.B.), refd to. [para. 33].

R. v. R.L.F. (2003), 350 A.R. 310; 2003 ABPC 196, refd to. [para. 38].

R. v. Dias (G.) (2011), 502 A.R. 156; 517 W.A.C. 156; 2010 ABCA 382; 2011 ABCA 6, refd to. [para. 45].

R. v. Mai (M.V.) (1994), 153 A.R. 173 (Prov. Ct.), refd to. [para. 53].

R. v. Yip (T.) et al. (2010), 504 A.R. 161; 2010 ABPC 292, refd to. [para. 54].

R. v. Schacher (D.G.) (2003), 339 A.R. 119; 312 W.A.C. 119; 2003 ABCA 313, refd to. [para. 64].

Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security), [2010] S.C.R. 815; 402 N.R. 350; 262 O.A.C. 258; 2010 SCC 23, refd to. [para. 64].

R. v. Griffin (J.M.) (2009), 485 A.R. 251; 20 Alta. L.R.(5th) 237; 2009 ABQB 696, refd to. [para. 69].

Costello and Dickoff v. Calgary (City) (1997), 209 A.R. 1; 160 W.A.C. 1; 1997 ABCA 281, refd to. [para. 71].

R. v. Delorme (G.), [2005] Northwest Terr. Cases 34; 2005 NWTSC 34, refd to. [para. 76].

R. v. Collins (P.) et al. (2010), 492 A.R. 199; 2010 ABPC 19, refd to. [para. 84].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), generally [para. 71].

Counsel:

Angela Byrne, for the defendant;

Gordon K.K. Wong, Q.C., for the Crown;

Grant N. Stapon, Q.C., for the Calgary Police Service;

Alain Hepner, Q.C., for the Calgary Police Association.

This application was heard before Shriar, P.C.J., of the Alberta Provincial Court, who delivered the following decision on May 12, 2011.