Court File and Parties

Court File No.: Niagara Falls: 150238

Ontario Court of Justice

Between:

Her Majesty the Queen

___ And ___

Xiaoquan Shan

Before: Justice of the Peace S. Lancaster

Heard on: March 21, 2016

Reasons for Judgement released on: May 12, 2016

Matter: S.7 Charter Application (Disclosure) – Stunt Driving under Highway Traffic Act, Section 172(1)

Counsel and Agents

I. Singh ……………...…………….………………………….. Crown Prosecutor

K. Myge ……………………………………………………………… OPP Agent

R. Tatangelo & F. Alfano ….………………..….................... Defense Agents

JUSTICE OF THE PEACE LANCASTER:

A) ISSUE

[1] Xiaoquan Shan was charged on April 12, 2015 on the Queen Elizabeth Way highway, Regional Municipality of Niagara, with Stunt driving, to wit: speeding 173 km/h in a posted 100 km/h zone per the HTA s.172(1). Today is the 9th appearance and Mr. Shan has had the benefit of legal representation. This matter returns today for court judgement in relation to s.7 Charter application regarding disclosure.

[2] On the May 21, 2015 first appearance date, the prosecution provided the defence with initial disclosure of the officer's notes and a redacted copy of the Dacatur electronics Genesis II radar device "User's Manual and Installation Guide" sections related to the device testing and set-up. On May 27, 2015 the defence requested additional disclosure. The prosecution "… informed (the Applicant) that arrangements could be made to have the full radar manual available to view in person in an effort to ascertain the additional portions of the manual that may be relevant for disclosure purposes". The Applicant did not respond to that invitation. The defendant was provided a typed copy of the officer's duty book notes and an explanation of the short forms or acronyms used as requested. The Applicant was informed that the GPS logs and the manufacturer's manual for the speed measurement device used were not in the possession of the Prosecution and that the Applicant should make a third party record request as per R.v O'Connor (1995). The disclosure at issue relates to:

1. "operating procedures and any sources of device interference as set out by the manufacturer", and

2. GPS (Global Positioning System) records for the vehicle used by Officer Briggs on the above offence date, for the time period of 1:30AM to 2:30AM"

[3] On March 21, 2016, a defence s. 7 Charter Application was before the court. Mr. Shan was arraigned and a plea of not guilty was entered. The court proceeded to review the Application and received submissions. The Applicant seeks a court order pursuant to s.24 of the Charter to require the prosecution to disclose the subject records.

Applicant's Position

[4] The Applicant's material notes that full disclosure is required to "effectively challenge the veracity of the Crown's central witness, to challenge and determine whether the investigating officer followed the applicable testing and operational procedures of the speed measuring device that as used in this particular case against this particular defendant, and to determine location of the officer at the particular time of speed measurement." (par.14). It is further noted "that the defendant may have a different version of events than the officer about the location of the officer at the time of the alleged offence" (par. 8).

[5] The Applicant submits that disclosure should be provided per R.v.Stinchcombe (1991) as first party records, or in the alternative if deemed third party records, the records be ordered disclosed per R.v.O'Connor (1995). The Applicant submits that given the prosecution's invitation, the Crown had, or could obtain, possession of the full manual and that disclosure should be provided. Mr. Alfano submitted that "when the records exist to corroborate the speed why not obtain them".

Prosecution and Ontario Provincial Police (OPP) Position

[6] The Crown and the OPP submit that the prosecution is not in possession or control of the subject records that are in fact in the possession or control of the OPP (OPP Factum, page 3). The OPP submits that the operational manual for the radar device "was not created in the course of this stunt driving investigation" and that PC Briggs performed the tests as "a result of his personal knowledge of the proper way to test and use the device and not directly referenced from the operational manual" (OPP Factum, par.9).

[7] The OPP submits that the GPS data from PC Brigg's vehicle is "not a fruit of the stunt driving investigation". This data was not used at any point in the investigation or in furtherance of reasonable and probable grounds to charge the Applicant". While the requested GPS data exist, the OPP submits that its purpose relates to officer safety. It has not been disclosed as "allowing disclosure in this case would create an impractical amount of work for the OPP, and the GPS data is irrelevant" (Factum, par.10).

First vs Third Party Records

[8] This court must determine if the subject records are 'first party' records (subject to the Stinchcombe disclosure regime) or 'third party' records (subject to the O'Connor disclosure regime). R.v.Stinchcombe is the seminal case on disclosure where the burden is on the respondent / prosecution to justify disclosure denial. R.v.Chaplan (1995) notes that the "Crown's disclosure obligation is shaped by the principles of fundamental justice included in s.7 … (of the Charter).

[9] The prosecution has a duty to disclose all relevant information in its possession to the defendant, and that duty is ongoing and continuous throughout the trial (Stinchcombe), although this duty is not absolute and the Crown's discretion is reviewable by the trial justice. Non-disclosure may be justified by showing the information sought is beyond the Crown's control, clearly irrelevant or privileged (R.v.Chaplan).

[10] Under O'Connor, the burden shifts to the Applicant / Defendant to demonstrate "likely relevance", a higher threshold that permits the court "to play a meaningful role in screening applications to prevent the defence from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming requests for production". The Supreme Court further states in McNeil (par.29) "The importance of preventing unnecessary applications for productions from consuming scare judicial resources cannot be overstated".

This review enables the court to determine if the defendant's s.7 Charter right infringement, and in particular if non-disclosure would impair the Applicant's Charter protected right to make full answer and defence.

[11] McNeil re-affirmed that "the disclosure regime only extends to material related to the accused's case in the possession or control of the prosecuting Crown entity. This material is commonly referred to as the 'fruits of the investigation' (par.22), defined in R.v.Jackson (2015) as "material gathered during the investigation of the offence with which the accused is charged (par.82).

[12] Regarding the prosecution's offer to arrange for the defence review of the full radar manual, this court does not conclude that this offer implies that the Crown has possession or control of the manual, just that the arrangement could be made.

[13] McNeil notes, "While the roles of the Crown and the police are separate and distinct the police have a duty to participate in prosecutions… (with) particular relevance here is the police duty to participate in the disclosure process" (par.23). The police and the Crown "… are unquestionably separate and independent entities, both in fact and in law" (and) "files involving third parties … usually falls to be determined in the context of an O'Connor application (par.25).

O'Connor Disclosure Regime Applies

[14] From the Application, responses and oral submissions, this court concludes that the subject records are third party records, subject to the O'Connor disclosure regime. The Application is properly before the court in terms of notice, subpoena, affidavit, and with the plea I am the trier of fact on this charge.

[15] In addressing the 1st stage of the O'Connor procedure, 'likely relevance' means that there "is reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify" (O'Connor par.22). While the "court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial", it turns to the submissions and the affidavit. The affidavit is signed by a paralegal employed by the defence agency and not the accused. The 3-page document recounts the chronology of disclosure requests and responses, and only at par. 17 addresses the manual, "needed in order to make full answer and defence … (regarding) accuracy".

[16] Paragraph 18 notes that the GPS records are "imperative and necessary" with the defendant's suggestion "that it may contradict what the officer is saying". In oral submissions the Applicant noted that the defendant may have a different version of events about location and time". It is little more than speculation that Officer Briggs stopped Mr. Shan at a location other than alleged by the Crown.

[17] The Application was to be supported by "appropriate affidavit evidence" [O'Connor, par.27(1)]. The Crown submitted that their case to be made out is uncomplicated and straight forward, and in the event of a conviction custody is not being sought. These are relevant factors to the overall importance of the disclosure and in balancing competing interests at stake, especially as related to security of the person (liberty rights).

Judgement

[18] From the submissions and affidavit, the Application has failed to show a "reasonable possibility that the information is logically probative to an issue at trial or competence of a witness to testify" (McNeil, par.33). The affidavit provides no supportive evidence regarding the need for the full manual. The defence has an obligation to actively seek and pursue disclosure and given their lack of response to review the manual, their efforts fall short of this threshold. The affidavit refers to the GPS records as "imperative and necessary", strong words indeed but rather incongruous with the suggestion that defendant may offer a contradiction.

[19] R.v.O'Connor involved serious criminal code charges involving a high profile sexual assault case, although that case applies to provincial offences cases regarding disclosure. The court cannot assume that the records are 'likely relevant', and if an accused is unable to show that they are, than the application for production must be rejected. "It is inadequate to submit bare unsupported assertion". Justice McLaughlan noted in R.v.O'Connor, the right to make full answer and defence is not without limit.

[20] Absent an evidential basis that the requested records are "likely relevant" this court finds that by the Crown not disclosing the remaining requested records, Mr. Shan's s.7 Charter rights have not been infringed. Production for this court's review is not necessary in the interests of justice. The viva voce evidence to be tendered during the trial will provide the Defendant with the opportunity to make full answer and defence.

[21] This court will review the trial evidence, assess credibility issues with respect to the speed measuring device, offence location and time and determine if the Crown can make their case out beyond a reasonable doubt. As this court has determined that the subject record are not "likely relevant" the issue of privileged records as it might relate to Decatur electronics has not been considered. There has been no notice given to that third party, and no specific submissions have been received.

The Application is dismissed.

Signed ____________________________

Stephen Lancaster, Justice of the Peace

Released: May 12, 2016