COURT MARTIAL
Citation: R. v. Simms, 2015 CM 4024
Date: 20150430
Docket: 201449
General Court Martial
17 Wing, Canadian Forces Base Winnipeg
Winnipeg, Manitoba, Canada
Between:
Her Majesty the Queen, Respondent
- and -
Master Warrant Officer A.W. Simms, Applicant
Before: Commander J.B.M. Pelletier, M.J.
DECISION ON AN APPLICATION BY DEFENCE FOR DISCLOSURE OF DISCIPLINARY AND CONDUCT REPORTS OF OFFICERS INVOLVED IN THE INVESTIGATION
Introduction
[1] On 12 November 2014, an officer authorized by the Director of Military Prosecutions preferred five charges against the accused, Master Warrant Officer A.W. Simms. Four of these charges allege that on 30 May 2014, at Winnipeg International Airport, the accused committed offences under section 130 of the National Defence Act (NDA); namely, assault causing bodily harm, assault on a peace officer, resisting a peace officer and uttering threats against Corporal, now Master Corporal Hall a member of the military police, contrary to sections 267(b), 270(1)(a), 129(a) and 264.1(1)(a) of the Criminal Code. The fifth charge allegedly committed at the same time and place, also laid under section 130 of the NDA, alleges that the accused uttered threats against another named member of the military police, contrary to 264.1(1)(a) of the Criminal Code.
[2] A General Court Martial began its proceedings on 27 April 2015 at 17 Wing Winnipeg, Manitoba as ordered in a Convening Order. Immediately after having unsuccessfully submitted a plea in bar of trial, the defence counsel submitted an application seeking a stay of proceedings as a remedy for an alleged failure of the prosecution to disclose the disciplinary and conduct report of all of the police officers, from both the Winnipeg Police Service and the military police, involved in the interaction and subsequent investigation which lead to the charges. The substance of this application was outlined in a Notice of Application filed on 22 April 2015 and produced as Exhibit M2-1. In oral arguments, counsel for the applicant argued that should the court find that a stay of proceedings is not the appropriate remedy, it should impose a disclosure order instead.
Facts
[3] At the time of the presentation of the evidence and arguments on this application, both counsel referred to the circumstances surrounding the events of 30 May 2014 and the five charges on the basis of evidence provided earlier in the course of the Plea in Bar of Trial by Master Corporal Hall, the military policeman present at the time and named in the particulars of charges one to four. Even if Master Corporal Hall did not repeat the entirety of his previous testimony when he testified in this application, the Court will take from the conduct of counsel that his previous testimony, as it relates to the circumstances of the offences, can be used for the purpose of the disclosure application, mainly to illustrate the role played by the two police forces involved. These circumstances, as alleged by Master Corporal Hall and/or the accused himself who testified in the plea in bar are as follows:
(a) On 30 May 2014, Master Warrant Officer Simms was travelling on leave from Petawawa to Las Vegas with his wife, also a member of the Canadian Forces. The couple initially flew from Ottawa to Winnipeg where they waited several hours at Winnipeg International Airport before having to take another flight.
(b) In the evening, the couple was denied boarding on a subsequent flight by WestJet employees, apparently on the basis of perceived intoxication and disruptive behavior affecting other passengers waiting to board the flight.
(c) Members of the Winnipeg Police Service from a detachment at the airport were called to the gate and subsequently took Master Warrant Officer Simms and his wife into custody in cells at the airport. The military police was called when it was revealed that Master Warrant Officer Simms and his wife were members of the Canadian Forces.
(d) Master Corporal Hall, Corporal at the time, a member of the military police on patrol duty, proceeded to the airport. Upon arrival, he witnessed Master Warrant Officer Simms yelling and screaming, appearing irate and angry. He also could smell alcohol on the breath of Master Warrant Officer Simms, who appeared to be intoxicated.
(e) Upon learning that the Winnipeg Police Service did not intend to proceed further by laying charges, Master Corporal Hall proceeded to affect the arrest of Master Warrant Officer Simms. When informed of his arrest, Master Warrant Officer Simms did not comply with direction from Master Corporal Hall. Instead, he threatened to kill him and placed his hands around his throat.
(f) In the ensuing scuffle, Master Corporal Hall was assisted by his colleague from the military police and by members of the Winnipeg Police Service before he was able to control Master Warrant Officer Simms and placed him in a military police vehicle for transport to cells on base at 17 Wing Winnipeg.
(g) Once there, Master Warrant Officer Simms was seen by a medical officer and released from cells the next day. Master Warrant Officer Simms and his wife were taken in an unmarked military police vehicle to Winnipeg International Airport where they were able to resume their travel and fly to Las Vegas, albeit a few hours later than expected.
[4] In support of his application, defence also relied on a document titled “Agreed Statement of Facts - Disclosure Application” produced under consent by both parties as Exhibit M2-2. The document includes as Annex A, a letter dated 15 April 2015 from one of the prosecutors representing the Director of Military Prosecutions in this case, to a legal advisor at the Winnipeg Police Service, requesting the disclosure of records of previous misconduct of police officers of the service involved in this case. The reply was produced as Annex B to that exhibit, to the effect that the Winnipeg Police Service is a third party to the prosecution and will not be making disclosure of records of misconduct, should any exist.
[5] A number of documents were introduced en liasse as Exhibit M2-3. Essentially, that exhibit includes two documents for each military police member involved in the investigation. The first of those two documents titled “Canadian Forces Military Police – Military Police Misconduct History” relates to a named member of the, military police, without reference to a specific file or occurrence. The second document is titled “Canadian Forces Military Police – Military Police Misconduct Disclosure ‘McNeil Report’ (For Crown Attorney/Military Prosecutor Screening)” and relates to a specific occurrence/investigation. Significant portions of those documents are blacked out. In addition, the prosecution called Master Corporal Hall to testify about the specific degree of involvement of the military police members named in those documents.
Submissions of the parties
[6] By his application, the defence is requesting a stay of proceedings or the disclosure of an unredacted version of the military police documents at Exhibit M2-3 in possession of the military prosecutors. Defence is also requesting the records of misconduct in the possession of the Winnipeg Police Service, the communication of which was denied to military prosecutors. The applicant submits that these documents are part of the “first party disclosure” owed to the defence as part of the Stinchcombe disclosure regime developed at R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[7] In reply, the prosecution argues that it has complied with its disclosure obligation by providing to defence all of the relevant information in its possession, from any source. Following a request from defence, the military police documents at Exhibit M2-3 were disclosed by police to the military prosecution in fulfilment of the duty of police to share with the prosecuting Crown all material pertaining to the investigation. The possession of that material by the prosecution, however, does not entail an obligation to disclose it to the accused. The prosecution alleges that a significant portion of the material it received from the military police was not “first party disclosure” as it relates to disciplinary information that is not relevant to the accused’s case. Those irrelevant portions of the material in the prosecution’s possession were blacked out in furtherance of its gatekeeper function before being disclosed to the defence. As for the possible records of misconduct in the hands of the Winnipeg Police Service, the prosecution replies that they cannot be covered under the Stinchcombe disclosure regime given that they are not in its possession as the prosecuting Crown entity. The proper regime to be used is the one applying to “third party disclosure”, namely the O’Connor regime developed in R. v. O’Connor, [1995] 4 S.C.R. 411.
Analysis
Issue
[8] The disagreement between the parties relates to whether the records of misconduct sought by the defence are governed under the Stinchcombe regime for first party disclosure or under the O’Connor regime for third party production.
[9] The difference between the two regimes is significant for the defence. If the information sought is considered first party disclosure, the Stinchcombe disclosure regime applies to the information in possession and control of the prosecution. The defence normally receives automatic disclosure. For this material to be withheld from disclosure to the defence, the onus is on the prosecution to justify the exercise of its discretion not to disclose on the basis that the material is clearly irrelevant. On review, the court must ensure the prosecution’s assessment is appropriate, to ensure that the right to make full answer and defence is not violated (R. v. Stinchcombe, paragraphs 20 to 22).
[10] If, however, the information is subject to the O’Connor third party production regime, then the defence must apply to the court and has the burden of demonstrating first that the information contained in the records is likely relevant. If that threshold is met, a second step requires the court to order production of the records for its inspection. The court must then balance the third party’s privacy interest in the targeted documents, if any, and the accused interests in making full answer and defence. In this case, the defence has indicated that it essentially has no idea if the documents sought could be relevant and therefore it would not be in a position to demonstrate likely relevance at the first stage of the O’Connor test.
The treatment of police misconduct information
[11] The type of information sought in this case, namely records of previous misconduct of police officers involved in the investigation of the case, consists of documents originating from police services which contain private information of police officers. It was traditionally considered as information unrelated to the investigation. That kind of information was not specifically discussed or enumerated as matters that must be disclosed in the Stinchcombe decision of 1991 and consequently, it was typically not disclosed to prosecutors by police. It was considered as information in the hands of third parties subject to the disclosure regime laid out in R. v. O’Connor in 1995.
[12] Indeed, police is not “one and only” with the prosecuting Crown as first parties. Crown entities other than the prosecuting Crown are third parties under the O’Connor regime, a legal statement repeated by the Supreme Court less than a year ago in R. v. Quesnelle, 2014 SCC 46, 11 C.R. (7th) 221 at paragraph 11:
For purposes of this “first party” disclosure, “the Crown” does not refer to all Crown entities, federal and provincial: “the Crown” is the prosecuting Crown. All other Crown entities, including police, are “third parties”.
[13] Despite the fact that Crown and police are separate and independent entities, they may be viewed as one entity for disclosure purposes, most obviously as it relates to the fruits of the investigation and other matters discussed in Stinchcombe. Another category of information was included in first party disclosure in 2009 with the Supreme Court decision in R. v. McNeil, [2009] 1 S.C.R. 66. That category was described as follows by Charron J at paragraph 15:
[R]ecords relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the “first party” disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. The Crown, in turn, must provide disclosure to the accused in accordance with its obligations under Stinchcombe. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O’Connor regime for third party production.
[14] It is following this decision that the practice of “McNeil disclosure” from police to Crown was instituted. That practice developed to answer the invitation in McNeil to “bridge the gap” between first party disclosure and third party production by ensuring that defence would not be placed at a disadvantage by ignorance of potentially relevant information.
[15] Two means identified to bridge that gap by Charron J in McNeil are the duty of the Crown to inquire when informed of potentially relevant information in the possession and control of a third party and the police duty to disclose relevant information. These two mechanisms are aimed at ensuring that potentially relevant information makes its way from third parties to the prosecuting Crown for an assessment of its relevance in the performance of the Crown’s duty as a minister of justice.
[16] Indeed, it has been acknowledged that the issue of relevancy cannot be left to the uninitiated; while the accused has no right to automatic disclosure of every aspect of a police officer’s employment history or to police disciplinary matters with no realistic bearing on the case against him, relevant disciplinary information should form part of first party disclosure and not be left to happenstance. (McNeil at paragraph 49)
[17] Justice Charron, at paragraph 54 of McNeil, provides obvious example of relevant information and, for cases which are not so obvious, suggests at paragraph 57, five categories of information proposed in the Ferguson Report, endorsing the recommendation that the Crown acts as gatekeeper to sort out what part of this material, if any, should be turned over to defence under the Stinchcombe disclosure regime.
[18] From the defence perspective, this is a significant improvement from the previous state of affairs when these issues were left to the O’Connor regime of third party disclosure. Yet it does not cover all cases; the possibility that some police disciplinary records may be deemed not to fall within the scope of first party disclosure is acknowledged expressly at paragraph 60 of McNeil. Examples of those are alluded to at paragraph 59, where Charron J noted that records of earlier misconduct relating to officers who played only a “peripheral role” in the investigation of the accused, or where the misconduct in question has “no realistic bearing on the credibility or reliability” of officers’ evidence, then the records need not be disclosed.
Application to this case
[19] The possession and control of the information sought by defence in this case necessitates a different analysis for, on the one hand, any records of misconduct in the hands of the Winnipeg Police Service and, on the other hand, military police documents at Exhibit M2-3.
[20] The documents in possession of the Winnipeg Police Service are clearly not in the possession and control of the Director of Military Prosecutions, the prosecuting Crown in this case. Consequently, there cannot be an application of the Stinchcombe regime of first party disclosure in relation to this information. That is not to say that the military prosecutors had no obligations in relation to that information; they were obliged to attempt to bridge the gap between first party disclosure and third party production as required by McNeil. They had to and did request to be provided with the material sought by defence in order to be in a position to assess the relevancy of that information. The military prosecutors were denied access to this information and, in the circumstances, the only obligation they had was to inform defence by disclosing the response of the Winnipeg Police Service. That way, defence could pursue whatever course deemed to be in the best interest of the accused, as foreseen in McNeil at paragraph 49. The exchange of letters annexed to Exhibit M2-2 reveals that the prosecution had fulfilled its obligations. The only possibility open to the defence in relation to these documents is an O’Connor application.
[21] As for the military police documents at Exhibit M2-3, the analysis is different because of the fact that the unadulterated documents requested are in the possession of the prosecuting Crown, who has obtained them from the military police. The prosecution has redacted these documents and the defence is asking the Court to order their disclosure un-redacted as it suspects that the amount of text redacted might be exaggerated, on the basis of the extent of the blacked-out portions of the documents.
[22] Looking at the prosecution’s actions in relation to the military police documents, I must find that what military prosecutors have done in this case is entirely in line with what is prescribed in McNeil in reference to the Ferguson Report. Prosecutors received unredacted information from the military police in confidence, and then redacted some of the information in the documents prior to disclosure to defence. In doing so they exercised discretion to decide what is relevant. This exercise of discretion is reviewable by the court only if the information can be considered first party disclosure under the Stinchcombe regime. In this and every case of police misconduct records, the information is prima facie a third party record, unless it is relevant as per the above-quoted criteria at paragraph 15 of McNeil. It is not all of those records that will be held to be relevant; as provided in McNeil, the question is to be determined by Crown counsel when in receipt of disclosure from police. Records concerning police disciplinary records that do not fall within the scope of first party disclosure are left for an O’Connor application.
[23] In this case, therefore, it would be illogical for me to find that simply because the prosecuting Crown has possession and control of the information, I should review the exercise of discretion by military prosecutors on the basis of Stinchcombe and place the onus on them to justify non-disclosure. Indeed, such a finding would have the effect of penalizing the prosecution and police for their attempt in bridging the gap between first party disclosure and third party production by disclosing all misconduct information to the Crown for vetting, as prescribed in McNeil. For their efforts, Prosecution and police would be rewarded by the imposition of a greater burden to keep information they deem irrelevant away from disclosure and potential use in public court. This would invite a return to a practice where this type of information was not shared with the Crown and systematically kept away from the defence.
[24] In this case, the prosecution has vetted the documentation and provided misconduct information on one police officer involved with the investigation which the defence would have been hard-pressed to obtain otherwise. A look at this information reveals that the Military Police Misconduct History form for the two military police members directly involved in the incident and their supervisor has been provided essentially unredacted with the exception of the service numbers. A conduct deficiency was included for a Military Police member named on one of the charges, yet it concerns a deficiency relating to needless activation of emergency lights on a vehicle, which occurred five months after the events in the charges. The dubious link between this conduct deficiency and the events related in the charges suggests that military prosecutors may well have “erred on the side of inclusion”, which is exactly what they were invited to do in Stinchcombe, at paragraph 20.
[25] Clearly then, some bridging of the gap has occurred. The fact that significant portions of the military police-related documents at Exhibit M2-3 were blacked out is not in itself an indication that the Crown has abused its discretion. In coming to this conclusion, I am also cognisant of the facts of this case. The charges concern alleged threats, assault and resistance to peace officers over a period of a few minutes against two named military police officers who intervened at Winnipeg International Airport at the request of the Winnipeg Police Service and had no interaction with the accused prior to the incident or since. The incidents were witnessed by a number of other officers and possibly video recorded. This is not a case where one can readily conclude that misconduct records would have any realistic bearings on the credibility or reliability of the officer’s evidence. In the circumstances, there are no reasons to doubt that the Crown’s assessment to the effect that the blacked-out information is third party information subject to the O’Connor disclosure regime was arrived at negligently or in bad faith.
[26] The difficulties that an O’Connor application generate for the defence in proving the likely relevance of those documents are acknowledged. However, Stinchcombe never obliged the disclosure of irrelevant information. If defence has no idea whether these documents exist and are likely to be of any relevance, it is in effect engaging in what has been characterized as a “fishing expedition”. The law does not oblige third parties to assist defence in these circumstances.
Disposition
[27] For these reasons, I find that the incapacity or refusal by the prosecution to disclose unredacted records of police misconduct to the defence cannot be remedied by recourse to the Stinchcombe regime as attempted by this application. It must be done by way of an O’Connor application.
[28] Consequently, this application for a stay of proceedings for failure to disclose or alternatively for an order for disclosure of records of police misconduct is dismissed.
Counsel:
The Director of Military Prosecutions as represented by Major D. Martin and Captain C.S. Nam
Lieutenant-Colonel D. Berntsen, Defence Counsel Services, Counsel for Master Warrant Officer A.W. Simms