QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 544 Date: 20121116 Docket: QBC 25 of 2008 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and ASHTON JOSEPH JAMES LAVALLEE AND RONALD DEVIN ZERR Counsel: Christopher D. White for the Crown Bobby P. Hrycan for the applicant, Ronald Devin Zerr Jeffrey W. Deagle for the accused, Ashton Joseph James Lavallee (appearing but not participating) DECISION ON SECOND STAGE O’CONNOR APPLICATION MADE BY RONALD DEVIN ZERR CHICOINE, J. November 16, 2012 BACKGROUND [1] On November 9, 2012, this Court directed the Crown to seek from the relevant police agencies or prosecution service the police reports and witness statements, including statements of the accused, in respect of two Crown witnesses, namely, the alleged victims of the aggravated assaults, Robert Lowenberger and Kelly Charbonneau, and in respect of particular offences for which these two individuals have previously been convicted (2012 SKQB 543 (CanLII)). I also directed the Crown to provide updated criminal records for each of Robert Lowenberger and Kelly Charbonneau. This information was to be delivered to the office of the local registrar at the Judicial Centre of Regina by 3:00 p.m. on Thursday, November 15, 2012, in sealed envelope so that it could be reviewed by myself as the trial judge to make all necessary determinations as to propriety of disclosure pursuant to the directives set forth in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] S.C.R. 411, [1995] S.C.J. No. 98 (QL), and as clarified in R. v. McNeil, 2009 SCC (CanLII), [2009] S.C.R. 66, including any conditions for their release to counsel for Mr. Zerr. [2] had also directed the Crown to inform Robert Lowenberger and Kelly Charbonneau that an order for disclosure had been made and invited all of the parties to make further submissions in writing with regard to the second stage of the O’Connor disclosure process, especially with regard to any conditions for release of any documents or the information they contain. [3] The Crown did file packet of documents with the court before the appointed time which it described in cover letter as follows: Information relating to the following charges for Robert Lowenberger: 1. RM 01038940 Documents relating to s. 266 charge, concluded April 29, 2003 (13 pages); 2. RA07018174 Documents relating to s. 254(5) charge, concluded July 10, 2007 (3 pages). Information relating to the following charges for Kelly Charbonneau: 3. RM99050865 Documents relating to two s. 267(b) charges, concluded February 7, 201 (10 pages); 4. RM02020716 Documents relating to s. 253(a) charge, concluded December 27, 2002 (6 pages); 5. RM01007839 Documents relating to s. 252(1) charge, concluded January 14, 2003 (11 pages); 6. RM02005189 Documents relating to s. 266 charge, concluded January 17, 2003 (7 pages); 7. RM03044518 Documents relating to s. 267(b) charge, concluded March 16, 2004 (16 pages); 8. RM04053781 Documents relating to s. 253(b) charge, concluded September 15, 2005; 9. RA06031410 Documents relating to s. 253(b) and s. 129(a) charges, concluded January 4, 2007 (18 pages); 10. RM07004188 Documents relating to s. 264.1(1)(a) charge, concluded February 9, 2007 (6 pages); 11. 2007-621834 Documents relating to s. 253(b) charge, concluded June 11, 2007 in Brandon, MB (3 pages). [4] note, and the Crown has now confirmed, that there were only 12 pages at tab of the packet, and not 18. This was typographical error. [5] The Crown has advised that Robert Lowenberger and Kelly Charbonneau have been informed that disclosure order was made concerning their criminal histories. The court has not received any submissions from these two individuals or any other parties in respect of the second stage of the O’Connor disclosure process or with regard to any conditions for release of any documents or the information they contain. PROCESS AT THE SECOND STAGE [6] In O’Connor, the Supreme Court provided the following list of factors for consideration in determining whether or not to order production to the accused (at para. 156): (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; [and] (5) the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question. [7] In McNeil, the Supreme Court stated that in most cases, useful starting point for courts in balancing the 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. Once court has ascertained upon inspection that third party records are indeed relevant to the accused’s case, in the sense that they pertain to an issue in the trial, the second stage balancing exercise is easily performed. In effect, finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. The accused’s interest in obtaining disclosure for the purpose of making full answer and defence will, as general rule, outweigh any residual privacy interest held by third parties in the material. This is particularly so in respect of criminal investigation files concerning third party accused. [para. 20] [para. 39] [para. 42] DECISION [8] Having reviewed the records, and upon considering all of the factors referred to in the above-noted jurisprudence, I have decided to produce all 95 pages of documents to counsel for both of the accused, Ronald Devin Zerr and Ashton Joseph James Lavallee. Some of the documents have words, phrases or numbers that I have blacked out where the information had no probative value or where the privacy interest of the witness would have been unjustifiably affected. These include, for example, residence addresses and telephone numbers. have numbered all pages to correspond with the list provided by the Crown as described above such that the number starts with the tab under which the document was found and then the chronological number of the page. (For example, 5-2 is the second page under tab 5.) [9] Copies of these pages will be made available to counsel for the accused and to Crown counsel in sealed envelopes. The original packet of documents filed by the Crown will be retained by me until the trial is completed, including any possible appeals. [10] It is hereby ordered that the 95 pages of documents are being released under the following conditions: (a) Only counsel for the accused will have possession of these documents. He may review them with the accused and with any expert that he may consider calling as witness at the trial. (b) Crown counsel will receive copies of the same documents as are being released to counsel for the accused. Crown counsel may review the documents with the corresponding witness and with any expert that he may consider calling as witness at the trial. (c) Except for the purpose of providing copy to an expert witness, none of the documents may be photocopied unless with prior permission of the court, as for example, for the purpose of using any document at the trial and having sufficient copies for reference during examination or cross-examination of witness. (d) These documents are not to be used or referred to in any other court proceedings, whether civil or criminal. (e) Any person who sees these documents is not to disclose their contents to anyone not entitled to inspect them. (f) Upon completion of the trial and after the time for any appeal has expired, the documents shall be returned to the clerk of this Court in sealed envelope for delivery to me and to be destroyed. OTHER ISSUES [11] Counsel are reminded that this ruling concerns the issue of disclosure only. The manner in which the documents and the information they contain can be used in examination or cross-examination of the witnesses at trial has not been determined. J. G. A. Chicoine
The accused was charged with second degree murder and two counts of aggravated assault. The accused made an O'Connor application for third party records relating to the two surviving Crown witnesses. In particular, the accused sought disclosure of police reports, videotaped evidence, witness statements, warned statements regarding the multiple arrests and charges incurred by the victims and disclosure of their criminal records. In 2012 SKQB 543, the Court ordered production of the records. This decision deals with whether the documents should be produced to the accused. HELD: The documents were disclosed to the accused. The judge vetted the documents to black out words, phrases or numbers that have no probative value or where the privacy interest of the witness would have been unjustifiably affected.