Case was stayed due to Charter being violated. SPCA officers Towell,
Woodward and Kokoska lost all their notes. Plus, disclosure requests
were ignored by the SPCA so defense couldn't prepare.
http://www.canlii.org/bc/cas/bcpc/2004/2004bcpc415.html
Citation:
R. v. Bily - Excerpt Oral Reasons for Judgment
20040810
Date; 2004 BCPC 0415
File No:
38649-1
Registry:
Vernon
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA v.BEVERLY ANNE BILY, RONALD STANLEY BILY
EXCERPT FROM PROCEEDINGS
ORAL REASONS FOR JUDGMENT OF THE
HONOURABLE JUDGE J. J. THRELFALL
Counsel for the Crown:
P.D. Pool
Counsel for the Defendant:
N. Schabus, articling student
Place of Hearing:
Vernon, B.C.
Date of Hearing:
August 10, 2004
Date of Judgment:
August 10, 2004
[1] THE COURT: Beverley Anne Bily and Ronald Stanley Bily are
charged under the Prevention of Cruelty to Animals Act with one count
of failing to act appropriately and thereby permitting an animal to be
or continue to be in distress, contrary to Section 24(1) of that Act.
[2] At the commencement of trial, counsel brought on an application
for a judicial stay based on what is alleged to be an infringement of
Section 7 of the Charter. In essence, the accused argue that their
right to make full answer and defence has been breached as a result of
the failure of Crown to provide a full, complete and timely disclosure
of material information that is necessary to allow them to make an
educated and informed decision with respect to instructing counsel and
preparing their case.
[3] The offence is alleged to have occurred between April 11th,
2003, and June 4th, 2004. A trial date was originally scheduled for
May 31st, 2004. Mr. Tessmer was subsequently retained as counsel on
April of 2004. He applied for and was granted an adjournment until
today's date. Requests for full disclosure were made by letter on June
8th, 2004, over Ms. Schabus' signature. Among other requests, she
asked for copies of the appointments of special constables of the
Society for the Prevention of Cruelty to Animals personnel involved,
copies of the notes of all witnesses, and information concerning the
expertise of the witnesses with respect to their special knowledge of
Peruvian Pasos, a breed of horse.
[4] On June 17th, 2004, she wrote again indicating that the
defendants would be arguing that their Section 8 rights had been
breached and alleging that the S.P.C.A. had no authority to enter
their premises. She also asked again for the disclosure set out in her
letter of June 8th.
[5] It is argued that the defence never received a response from
Crown counsel other than some disclosure provided July 14th, 2004, at
the trial confirmation hearing, and additional disclosure provided
this morning. It is conceded that Crown talked with defence yesterday.
There was also a letter filed by defence dated August 9th, 2004, which
the defence maintains was faxed to Crown counsel, but Mr. Pool says he
never received.
[6] At the trial confirmation hearing a couple of issues were dealt
with. One, the presiding judge did not require the Crown to provide
further information on various witnesses' expertise with respect to
the Peruvian Paso horse, directing rather that this was a matter for
trial; secondly, Crown provided the curriculum vitae of one of the
vets to be called. It also provided the Police Act appointments for
one of the investigating personnel from the S.P.C.A. as well as a copy
of the complaint sheet and twenty pages of notes of the lead
investigator. The Crown failed to provide notes or statements of any
additional witnesses or an explanation as to whether these notes were
available. Crown concedes that it did not comply with Section 657.33
of the Criminal Code in that it failed to provide the curriculum
vitaes of the vets at least thirty days prior to trial.
[7] On the morning of trial Crown provided one page of notes
regarding the testimony of an R.C.M.P. officer, information regarding
the lost notes of an S.P.C.A. witness named Towell, and an edited
version of the complaint sheet. No notes or statements were provided
for additional S.P.C.A. personnel, Woodward or Caldwell, who
apparently attended the defendants' property with Special Constable
Kokoska, the principal investigator. Certainly, some of the problems
with disclosure were occasioned by the summer holidays and the fact
that the trial was scheduled in August.
[8] The Supreme Court of Canada in Stinchcombe dealt with the issue
of disclosure. At the time that Stinchcombe was decided there had been
much argument and discussion as to what the obligations were that
Crown counsel had to comply with. I am going to read a couple of very
brief excerpts from Stinchcombe. At page 13 of the volume provided to
me in the defence's book of authorities, and this is the Canadian
Criminal Case version, 68 C.C.C. (3d) 1, at page 13, paragraph (g):
There are, however, two additional matters which require further
elaboration of the general principles of disclosure outlined above.
They are: (1) the timing of disclosure, and (2) what should be
disclosed. Some detail with respect to these issues is essential if
the duty to disclose is to be meaningful. Moreover, with respect to
the second matter, resolution of the dispute over disclosure in this
case requires a closer examination of the issue.
[9] And at page 14:
With respect to what should be disclosed, the general principle to
which I have referred is that all relevant information must be
disclosed subject to the reviewable discretion of the Crown. The
material must include not only that which the Crown intends to
introduce into evidence but also that which it does not. No
distinction should be made between inculpatory and exculpatory
evidence.
[10] And at paragraph (h):
A special problem arises in respect to witness statements and is
specifically raised in this case. There is virtually no disagreement
that statements in the possession of the Crown obtained from witnesses
it proposes to call should be produced. In some cases the statement
will simply be recorded in notes taken by an investigator, usually a
police officer. The notes or copies should be produced. If notes do
not exist then a "will say" statement, summarizing the anticipated
evidence of the witness, should be produced based on the information
in the Crown's possession.
[11] And at page 15:
I am of the opinion that, subject to the discretion to which I have
referred above, all statements obtained from persons who have provided
relevant information to the authorities should be produced
notwithstanding that they are not proposed as Crown witnesses. Where
statements are not in existence, other information such as notes
should be produced, and, if there are no notes, then in addition to
the name, address and occupation of the witness, all information in
the possession of the prosecution relating to any relevant evidence
that the person could give should be supplied.
[12] I am satisfied that full and timely disclosure has not been
complied with. Moreover, Section 657.33 of the Code with respect to
the expertise of the vets was late in being complied with. The result
has been an inability of the defence to properly prepare for trial.
[13] The next issue is what remedy should be ordered. The case
could be adjourned or a judicial stay directed. I note that other than
the disclosure provided at the trial confirmation hearing on July 14th
there was no correspondence or discussion between Crown and defence
until the very eve of trial. It may well be as Crown contends that the
S.P.C.A. personnel who attended at the scene cannot provide any other
relevant information. That, however, is not the Crown's decision in
these circumstances. In fact, on the submissions before me, no one is
able to make that decision because nothing with respect to these
individuals has been disclosed. The Crown was aware that an issue was
raised with respect to the S.P.C.A.'s authority to attend the
property. These individuals may well have information relevant to that
issue and others. If the Crown was of the view that these witnesses
had no relevant information to provide, the defence should have been
notified promptly. This matter is over a year old and the original
trial date was May 31st, 2004. The Crown's obligation is to provide
the information before a plea and the fixing of the trial date. It is
difficult to understand why the necessary information or explanations
could not have been provided over the last year, certainly if not to
Mr. Tessmer to previous counsel.
[14] Requests for disclosure were, as I have indicated, repeatedly
made. The issues to be raised at trial were set out by Ms. Schabus in
June, who on more than one occasion conveyed to Crown their clients
were extremely anxious about the case and that an adjournment was not
an acceptable option. The defendants have been put to the expense of
retaining counsel and suffering the publicity of a serious and
personally damaging allegation. An adjournment will prolong that
anxiety and add to their legal costs. In my view, this is one of those
cases where an adjournment is not the appropriate remedy. Although, I
am mindful of the fact that judicial stays should be directed in only
clearest of cases, since it means there will be no trial on the
merits, I am of the view that this is one of those cases where a
judicial stay is appropriate and I so direct.
[15] MS. SCHABUS: Thank you.
(EXCERPT CONCLUDED)