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Dwayne's Case — Possess Child Porn — Disclosure Motion
Between 118 C.C.C. (3d) 529 Ontario
Court (General Division) Heard: July 28, 1997 Charter of Rights - Enforcement of rights - Court of competent jurisdiction - Where accused not having elected mode of trial, application for disclosure properly brought in superior court - Canadian Charter of Rights and Freedoms, s. 24(1). Disclosure - Where accused not having elected mode of trial, application for disclosure properly brought in superior court - Canadian Charter of Rights and Freedoms, s. 24(1). Disclosure - Video cassettes alleged to be obscene or child pornography - Disclosure may be made by private viewing rather than by providing copies only if privacy interests of children depicted and public interests cannot be satisfied by appropriate undertaking by defence counsel. Disclosure - Costs - Crown ordered to disclose copies of video cassettes alleged to be obscene or child pornography - Video cassettes fundamental to Crown's case - Crown required to pay costs of disclosure of copy of tapes. Cases referred to R. v. B. (K.G.) (1993), 79 C.C.C. (3d) 257, [1993] 1 S.C.R.
740, Statutes referred to Canadian Charter of Rights and Freedoms Authorities referred to Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, ("Martin Committee"), Report APPLICATION by the accused for disclosure of copies of video cassettes.
WATT J.: — This application arises out of a dispute concerning the manner of disclosure of approximately thirty-five video cassettes of which Dwayne Blen**** ("the applicant") was found in possession. The prosecutor alleges that the tapes are child pornography or obscene. A. The Background Facts 1. Introduction On October 30, 1996, the applicant was charged in an information which contained eight counts. The charges arose as a result of the seizure of some five hundred video cassettes by police investigators. Seven of the counts relate to video cassettes, which are alleged to be obscene or child pornography. Despite several court appearances, the applicant has not yet elected mode of trial. 2. The Initial Disclosure Agreement On April 21, 1997, a pre-hearing conference was held before a judge of the Provincial Division. At its conclusion, the prosecutor then in charge of the case indicated that she was not opposed to the release of copies of specified video cassettes to counsel for the applicant. The prosecutor insisted, however, that undertakings be given by counsel for the applicant concerning duplication and distribution of the copy tapes. Counsel for the applicant was prepared to give the requested undertakings. In correspondence which confirmed what had occurred at the pre-hearing conference, counsel for the applicant expressed concerns about the cost of production of copy tapes being borne by the applicant. The prosecutor confirmed that the cost of tape reproduction would, indeed, be the responsibility of the applicant. The cost included the supply of blank tapes and an hourly copying rate of $30. In the alternative, the prosecutor suggested that the applicant, counsel and any expert retained by the applicant could view the tapes privately at a police station at a mutually convenient time. 3. The Next Steps In further correspondence, counsel for the applicant refused to pay the cost of tape reproduction which he estimated at approximately $9,000. He declined the opportunity to view the original tapes at the police station. A variety of reasons were advanced. They included concerns about tape continuity and integrity, a breach of the right to silence and an inability to discuss the matter freely with any retained expert and the applicant. The prosecutor reiterated her position concerning the responsibility for the cost of tape reproduction. The offer of the alternative method of disclosure was repeated. 4. The Subsequent Discussions Further correspondence followed. In the result, counsel for the applicant continued to complain about being saddled with the cost of tape reproduction. He asserted that disclosure was the responsibility of the prosecutor, hence the cost of reproduction of tapes was the obligation of the state. The applicant was not required and could not afford to pay the cost of tape reproduction. The position of the prosecutor did not change. No copies would be provided, unless the applicant paid the prevailing rate and gave the necessary undertakings. At all events, copies would only be provided if ordered by a judge. The application for disclosure by providing copies would be opposed by the prosecutor, both in relation to production and to costs. The applicant, counsel and any expert retained by the defence could view the tapes privately at the police station by arrangement with investigating officers and the prosecutor. 5. The Present Situation The applicant has not yet elected mode of trial. No disclosure has been made of the thirty-five videotapes which the prosecutor has identified as forming the subject-matter of the charges. The applicant refuses to pay for copy tapes. The prosecutor refuses to provide copy tapes, inter alia, without payment. The applicant refuses to take up the prosecutor's offer of disclosure by private viewing at the police station. No one wishes to give ground. B. The Positions of the Parties 1. Introduction The application proceeded without reference to the authority of a judge of the General Division to order disclosure in a case before the Provincial Division, where there has been no election concerning mode of trial. In large measure, the positions of the parties accord with their earlier correspondence. It is of value, nonetheless, to recapture their substance. 2. The Position of the Applicant It is the position of the applicant that he is entitled, without appropriate undertakings, to be provided with copies of the video cassettes which are alleged to be child pornography or obscene, as the case may be. The cost of reproduction, as with other more traditional forms of copyable disclosure, should be borne by the state. Mr. Penney submits that the applicant is not required to content himself with the alternative of private viewing at the police station which has been offered by the prosecutor. The alternative is impractical, infringes or compromises the applicant's right to silence and poses problems with tape continuity and integrity. Counsel may be put in the position of becoming a witness should continuity be an issue. In connection with the issue of the costs of reproduction of copy tapes, Mr. Penney reminds that it is the prosecutor's obligation to make disclosure. Entitlement to disclosure is a matter of constitutional right. In the usual course of events, the cost of disclosure is that of the party who is obliged to disclose, the prosecutor. The same rule applies to videotapes. 3. The Position of the Respondent It is the position of Ms. Hughes that the prosecutor is under no obligation to provide copies of relevant tapes in order to fulfill its constitutional obligation of disclosure. It is a fortiori that the tapes should be supplied at public expense. Ms. Hughes contends that the method of disclosure proposed by the applicant is contrary to policy directives contained in the Crown Policy Manual. Further, it would constitute an offence to distribute copies of child pornography and obscene material to defence counsel, even with undertakings to bar further copying or distribution. It is the submission of the prosecutor that the alternative proposal of private viewing at a mutually convenient time at a police station satisfies the prosecutor's disclosure obligations. It does so in a way which permits the applicant to make full answer and defence, yet does not further compromise any privacy interests to which persons portrayed on the tapes are entitled. Ms. Hughes urges that, if disclosure of copies of tapes is ordered, the cost should be borne by the applicant. It is the applicant who seeks disclosure in a particular form. Another perfectly acceptable form of disclosure has been offered. Where an applicant insists upon a particular form of disclosure, notwithstanding disclosure is offered in another way consistent with constitutional standards, the applicant ought pay the cost. C. Analysis 1. Introduction The analysis required by this application involves consideration of fundamental principles of disclosure in criminal cases, including the authority to make orders of the nature sought. 2. The Governing Principles a. The Disclosure Obligations of the Prosecutor In R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1, the Supreme Court of Canada held that, in indictable cases, a duty is imposed upon the prosecutor to disclose to the accused all relevant material, inculpatory or exculpatory, that is in the possession or control of the prosecutor. The duty arises as a result of the constitutional right of an accused to make full answer and defence. The obligation to disclose is not absolute. It arises as a result of a request for disclosure by an accused. Disclosure may also be withheld, or delayed in certain circumstances. Initial disclosure should be made before the accused is asked to elect mode of trial or to plead. See R. v. Stinchcombe, supra, at p. 14, per Sopinka J. A prosecutor may justify non-disclosure on the basis that what is sought is
See R. v. Chaplin (1995), 96 C.C.C. (3d) 225 (S.C.C.), 233, per Sopinka J.; R. v. Stinchcombe, supra, at p. 11, per Sopinka J.; and R. v. Egger (1993), 82 C.C.C. (3d) 193 (S.C.C.). Relevance is determined by reference to the use of evidence or material by the defence. If there is a reasonable possibility that the material may be useful to an accused in making full answer and defence, it ought be disclosed unless privileged or beyond the prosecutor's control. b. The Form of Disclosure An accused does not appear to have any absolute right to disclosure or production of original material. See R. v. Stinchcombe (1995), 96 C.C.C. (3d) 318 (S.C.C.). Where the original is within the possession or control of the prosecutor, there would seem an obligation to produce or allow inspection of the original. See R. v. Stinchcombe, supra, at p. 318, per Sopinka J. In the usual course of events, prosecutorial disclosure consists of photostatic reproductions of witnesses' statements, documents and other things capable of such reproduction. In cases involving large numbers of documents, whether statements or business records, defending counsel is provided with disclosure by photostatic reproduction or CD-ROM. Where the prosecutor's case involves evidence of intercepted private communications, statutory notice provisions govern. See Criminal Code, s. 189(5). It is not uncommon, however, for disclosure to include copies of relevant tapes (especially if the words spoken are not in the language of trial), and transcripts or translations of them. The Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions ("the Martin Committee") recommended that the prosecutor be required to provide:
The Commentary which accompanied the recommendations of the Martin Committee appears at pp. 234-235 of its Report:
It would seem clear from the Report of the Committee that, exceptional cases aside, disclosure of videotapes should be by copy. It is also fair to say that, in exceptional cases where other rights are in conflict, the constitutional requirement may be met by providing an opportunity for private viewing. c. The Cost of Disclosure There is not much said or written about the cost of disclosure, in particular who should pay for it when disputes arise. The Martin Committee made the following recommendations concerning payment for disclosure:
It was the view of the Committee that police forces should bear the cost associated with providing the case to the prosecutor so that it may be conducted in court. The Committee took a different view, however, about providing subsequent copies of material which are required for disclosure:
The Martin Committee also recommended that an accused ought not be required to pay for "basic disclosure". What constitutes "basic disclosure" will vary. Where a Crown brief has been prepared, "basic disclosure" is the brief itself, including copies of photographs to be tendered as exhibits. The Committee stopped short, however, of requiring that copies of all photographs taken be provided to an accused. The following passage reflects their views:
d. Disclosure Applications From time to time, disputes arise concerning the adequacy or timing of prosecutorial disclosure. It is for the "trial judge" to resolve the matters in issue. See R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.), 12, per Sopinka J. This application illustrates what has become a practical problem in giving effect to two principles articulated by the Stinchcombe court. Initial disclosure is to occur before an accused is called upon to elect mode of trial, or plead. See R. v. Stinchcombe, supra, at p. 14, per Sopinka J. Yet, the court empowered to review the adequacy of prosecutorial disclosure, in essence the exercise of a prosecutor's discretion concerning the extent, manner or timing of disclosure, is the trial judge. See R. v. Stinchcombe, supra, at pp. 12-13, per Sopinka J. In cases where an accused has a right to elect mode of trial, there is no trial court, let alone trial judge prior to election. Who is the trial judge prior to election to review the adequacy of initial disclosure by the prosecutor? An allegation that prosecutorial disclosure is inadequate is a complaint of constitutional infringement. It is an assertion that an accused's right to make full answer and defence, a right afforded protection under the Canadian Charter of Rights and Freedoms, s. 7, has been infringed by state conduct, viz., inadequate or untimely disclosure. The accused, by application, seeks a remedy that is appropriate and just in the circumstances. 3. The Principles Applied a. The Issue of Jurisdiction It is necessary to clear away first the issue of jurisdiction. No submissions were made about it, nor did the prosecutor argue that the remedy sought could not be granted, if otherwise entitlement was shown, on this application. In this case, without an election of mode of trial, there is no trial court. It follows that there is not, nor am I, a trial judge. It would strain the plain meaning of the term, and the sense in which it was apparently used, and repeatedly, in Stinchcombe, supra, to describe myself as the trial judge, even a judge of the trial court. The argument would have more force if the offences charged were within the exclusive jurisdiction of the General Division, or if the applicant had elected trial here. Neither is the case. The reference to the "trial judge" as the court in which prosecutorial disclosure decisions may be reviewed coincides with the general rule that "a court of competent jurisdiction" for the purposes of Charter s. 24 in an extant case is the trial court. See, for example, Mills v. The Queen (1986), 26 C.C.C. (3d) 481 (S.C.C.); and R. v. Rahey (1987), 33 C.C.C. (3d) 289 (S.C.C.), 298, per Lamer J.; and 318, per La Forest J. The jurisdiction of the trial court to grant Charter relief is not, however, exclusive. The superior court of criminal jurisdiction has constant, complete and concurrent jurisdiction with the trial court for applications under Charter s. 24(1). See Mills v. The Queen, supra, at p. 494, per McIntyre J.; and, at p. 517, per Lamer J.; and, R. v. Rahey, supra, at pp. 298-9, per Lamer J. and, at p. 319, per La Forest J. I am unable to conclude that the court in Stinchcombe, supra, by its repeated reference to "the trial judge" as the arbiter of complaints of inadequate prosecutorial disclosure, sidelined the constant, complete end concurrent jurisdiction of the superior court expressly recognized in Mills, supra, and Rahey, supra. It is all the more so where, as here, there is no trial court within reach, and there is a need to adjudicate upon the application to determine whether a constitutional infringement has occurred. In the result, I am satisfied that as a judge of the superior court, I have jurisdiction to entertain this application and ought do so where the trial court is not within reach. b. The Right to Disclosure There is no doubt, nor can there be, that the applicant is entitled to disclosure of the videotapes which the prosecutor alleges are child pornography, or obscenity, as the case may be. What is sought is disclosure of the evidence upon which the prosecutor relies to establish criminal liability. The material sought is within the control of the prosecutor. It is not clearly irrelevant, nor is it the subject of a claim of privilege. Whether disclosure of the subject-matter of the charges should be given is not the issue. The issue concerns the form of disclosure. c. The Form of Disclosure In R. v. Stinchcombe (1995), 96 C.C.C. (3d) 318, the Supreme Court of Canada held that |
