R. v. LORNA BOURGET 2007 NWTTC 13 File: T-01-CR IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES HER MAJESTY THE QUEEN.

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1 R. v. LORNA BOURGET 2007 NWTTC 13 File: T-01-CR IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - and - LORNA BOURGET Applicant REASONS FOR DECISION of the HONOURABLE JUDGE ROBERT D. GORIN Heard at: Yellowknife, Northwest Territories Date: August 10, 2007 Date of Decision: September 13, 2007 Counsel for the Crown: For the Accused: E. Gullberg R. Bourget (Charged under s. 104 City of Yellowknife Municipal By-law no. 4063)

2 IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN -and- LORNA BOURGET Applicant INTRODUCTION [1] The applicant is charged with speeding, contrary to section 104 of the City of Yellowknife s municipal bylaw no The date charged is March 12, [2] Ms. Bourget has applied to this Court for an order requiring the prosecution to disclose certain information and material to her. [3] Both Ms. Bourget s representative and Counsel for the City of Yellowknife (the City), advise that on Ms. Bourget s first appearance date in on April 17 th of this year, disclosure was requested by Ms. Bourget in writing. The items requested were all documents, witness will-say statements, witness statements, reports, and the name address and occupation of the person providing such information; the make, model and serial number of the radar used; and copies of the City of Yellowknife policies/guidelines/directives on the use of radar units. [4] I understand that on that date the City provided its initial disclosure package to Ms. Bourget. The disclosure provided consisted of a photocopy of the police copy of the Summary Offence Ticket Information (SOTI) that had been issued to the defendant; a photocopy of the officer s notes on the back of the SOTI; a photocopy of the certificate verifying that the officer; Constable Fudge, had attended a course on radar and radar operation; a photocopy of two tuning fork certificates; and a photocopy of Section 104 of Bylaw No

3 [5] Further disclosure was provided prior to the end of April. Ms. Bourget was provided with the serial number of the radar unit in question and a statement that the City of Yellowknife does not have a policy guideline or directive on the use of radar. The City further advised that its municipal enforcement division requires that any member issuing a ticket for radar must be a certified operator. As well, a further statement of the arresting officer pertaining to the circumstances of the alleged offence was provided. [6] Ms. Bourget has since requested further disclosure. The further disclosure was requested in writing through correspondence dated May 8, No further disclosure has since been provided. The requested disclosure has not been provided. The disclosure requested and applied for today is as follows: 1. Any oral evidence to be presented by Crown witnesses that are not contained in the notes provided. 2. Any oral information held by the Crown witnesses relating to the incident in question that will not be presented in Court and the reasons for them not being presented. 3. Copies of any written instructions/guidelines/policies held by any division of the City of Yellowknife regarding the use of radar units by the City of Yellowknife Personnel. 4. Copies of portions of the radar unit operator s manual that outline the use and limitations of the radar unit, including but not limited to target acquisition, false readings, multiple readings, tracking and targeting. 5. Copies of the Course Training Standards, requirements and course syllabus referenced in the Radar Operator s certificate.

4 ANALYSIS [7] In respect of the first three items of disclosure requested by Ms. Bourget, I agree with the analysis provided by counsel for the City. Ms. Bourget s agent has suggested that he has asked for the information and that this is sufficient to require the City to disclose it. However, it is clear from the Supreme Court of Canada s reasoning in R. v. Stinchcombe [1991] 3 S.C.R. 326 and subsequent jurisprudence, that there has to be some factual basis or air of reality to the assertion that the requested disclosure is relevant. [8] I will first deal with the first item requested: Any oral evidence to be presented by Crown witnesses that are not contained in the notes provided. [9] The prosecutor has already disclosed a statement of the municipal enforcement officer who made the stop as well as the notes he made around the time of the stop. The City advises that the officer will be its only witness at trial. It is certainly quite possible that the officer s testimony may deviate from what is set out in his notes and statement. It is impossible for the prosecution to anticipate all of the questions he may be asked on cross-examination and it is therefore impossible to anticipate all of the evidence he will provide. The further request for disclosure is too vague. The prosecution in providing a will-say statement from the municipal enforcement officer has complied with the requirement that it provide the accused with the anticipated evidence of its one witness. [10] The second item requested is: Any oral information held by the Crown relating to the incident in question that will not be presented in court and the reason for them not being presented. Once again, the prosecution anticipates calling one witness. A willsay statement from that witness has been provided. [11] The prosecution must disclose all relevant information it has in its possession. The prosecution advises that it is aware of no further relevant evidence oral or

5 otherwise from any witness present. The prosecution has already provided the disclosure referred to in this part of Ms. Bourget s request. [12] The third item requested is Copies of any written instructions/guidelines/policies held by any division of the City of Yellowknife regarding the use of radar units by the City of Yellowknife Personnel. If such guidelines existed, they would in my view be relevant and ought to be disclosed. However, the prosecution has already previously advised Ms. Bourget that there are no policies or guidelines. The prosecution has already adequately responded to the request for the third item. [13] The fourth item requested is: Copies of portions of the radar unit operator s manual that outline the use and limitations of the radar unit, including but not limited to target acquisition, false readings, multiple readings, tracking and targeting. [14] Counsel for the prosecution advises that the City is in possession of two radar manuals. The first is a manual that accompanies the particular radar device that the officer was using at the time. He advises that the manual provides information about testing the unit, installation and operation of the unit. He advises that the second manual is of a more generic nature. This manual provides information about the theory of radar and does not apply to a particular model or brand of radar but is used by the City in the training of its municipal enforcement officers. [15] Counsel further advises that the City s position is that the manuals are not relevant to the particular charge against Ms. Bourget. The prosecution also states that the applicant has not demonstrated the basis necessary to support the application for disclosure of the portions of the manuals previously requested. The applicant on the other hand takes the position that there is sufficient factual basis for the request and that the requested material is relevant. [16] Counsel for the City has provided a number of helpful cases, which deal with the issue. The most recent decision provided is that of R. v. Wheeler [2007] N.J. No. 175 (Nfld P.C.) (QL). In that case Judge Gorman thoroughly reviewed the existing

6 jurisprudence on point. I have found the judgment very useful both in its review of the law and in its reasoning. [17] I will note at the outset that in the Northwest Territories, there exists no legislation that creates a presumption of accuracy, which applies to radar devices. In this respect speed calculations obtained through radar equipment can be distinguished from breathalyzer readings in prosecutions for charges of impaired driving or driving over 80. [18] As stated at the outset, the seminal case dealing generally with the Crown s disclosure obligations is Stinchcombe (supra). Disclosure of all relevant information within the possession of the Crown, which is not privileged, is required in order to fulfill the accused s right to make full answer and defence to the charges against him, pursuant to section 7 of the Canadian Charter of Rights and Freedoms. [19] In R. v. Dixon [1998] 1 S.C.R. 244, the Supreme Court of Canada held that the Crown has an obligation to disclose all relevant material in its possession so long as the material is not privileged. Material is relevant if it could reasonably be used by the defence in meeting the case for the Crown. The court held that the threshold requirement for disclosure is set quite low. As a result a broad range of material, whether exculpatory or inculpatory is subject to disclosure. [20] In R. v. Shannon (1992), 42 M.V.R. (2d) 128 (Ont. C.A.), the charge against the accused was operating a motor vehicle with a radar warning device contrary to section 61(2) of the Highway Traffic Act, R.S.O The accused applied for and was granted an order requiring the Crown to disclose the Operator s Handbook or the Service Manual for the VG2 interceptor. However, on review the Ontario Court of Appeal concluded that the order requiring disclosure of the manual was premature. The court held that the application should have been made by the trial judge. It also held that the necessary factual basis supporting an order was not present because it had not been established that the Crown was going to rely on the VG2 interceptor in prosecuting the charge. Nevertheless, the court stated that if the Crown was going to attempt to rely

7 on the VG2 interceptor, then disclosure of the operator s manual was necessary in order to allow the defence to challenge the accuracy of the device. The court at page 129 explained: In our opinion, the motions court judge erred in compelling pre-trial disclosure as he did. The matter should have been left for the trial judge. There are only two bases upon which the technical information about the VG2 can be relevant to the conduct of the defence. The first is if the Crown were to rely on the interception made by the VG2 to prove that the device seized in the respondent s car was a radar detector. Crown counsel, Mr. Hutchison, is correct in conceding that the Crown could not rely on the VG2 at trial in that fashion without disclosing the manual. If the VG2 interceptor, sometimes called the detectors detector is used testimonially, the defence is entitled to have the opportunity to challenge its capacity, its functions and its accuracy. However, the Crown is entitled to attempt to prove that the device seized in the respondent s car was a radar detector without the assistance of the VG2. Should it fail, the respondent would be entitled to an acquittal. Mr. Hutchison assured the court that the Crown would not be using the VG2 device to prove an element of the offence. If the Crown does not rely on the VG2 to prove its case at trial, its technical specifications are irrelevant to the conduct of the case. [21] In my view the same logic clearly applies to the facts before me. I do not know whether or not the City will be attempting to use any radar readings which may have been recorded testimonially. I have heard nothing about any speed readings obtained from the radar device. I know nothing about the case except that it involves a charge of speeding and that some of the disclosure materials provided by the City to Ms. Bourget which relate to a radar device. [22] For all I know, the radar device may have been used by municipal enforcement as an initial indicator and the prosecution may be relying on subsequent measures

8 taken to clock the vehicle driven by the applicant in order to establish its speed. This is simply one possible scenario in which the radar device would not be used testimonially. There may well be many others. I use the example simply to illustrate that I cannot infer or assume that radar device readings will be used as direct evidence as to the speed of the vehicle the applicant is alleged to have been driving. As the Ontario Court of Appeal made very clear in Shannon, the judge who rules on the disclosure application is not to assume that the basis necessary for the disclosure application is present. [23] Neither Ms. Bourget nor the City has advised me as to the relevance of the radar device. The City simply asserts that the requested portions of the manuals are not relevant without providing any explanation of its position. Be that as it may, the applicant bears the onus of proof. Consequently, I find that the applicant has not established the necessary basis for her application in relation to those portions of the radar manuals requested. [24] However, having said that, I will make a further observation quite similar to that made by the Ontario Court of Appeal in Shannon. If the radar device is used testimonially, the defence is entitled to have the opportunity to challenge its capacity, its functions and its accuracy. Therefore, if the radar device is to be used testimonially, those portions of the manuals, which relate to the basic theory and operation of radar, its capabilities and limitations and which describe how to properly operate the device and test its accuracy, should be disclosed as soon as possible. [25] If the radar device is going to be used testimonially and the relevant portions of the radar manuals are not disclosed, Ms. Bourget can certainly renew her applications respecting them at trial. [26] The fifth and final set of items requested by Ms. Bourget is: Copies of the Course Training Standards, requirements and course syllabus referenced in the Radar Operator s certificate.

9 [27] For the same reasons as those which apply to my ruling on the radar manuals, I find that the applicant has not established the necessary basis for her application in relation to the training course taken by Officer Fudge. [28] Even if it were established that the City will be using the radar device testimonially, I have not heard that the City intends to call Officer Fudge as an expert to provide evidence in relation to the use of the radar device. Once again I conclude that the applicant has not established the necessary basis for me to conclude that the course training standards and course syllabus in use at the time when the investigating officer was taught how to use a radar device are relevant. [29] I have found no breach of the prosecutions disclosure obligations in relation to any of the items sought by Ms. Bourget. [30] I thank Mr. Gullberg and Mr. Bourget for their assistance. [31] As a practical matter, I point out that there is no reason why the City should not simply provide Ms Bourget or her representative with access to the entirety of both of the manuals. However, having said that, there is no duty on the City to disclose that which is irrelevant. Robert D. Gorin J.T.C. Dated this 13 th day of September, 2007 at the City of Yellowknife, Northwest Territories.

10 R. v. LORNA BOURGET 2007NWTTC13 IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF HER MAJESTY THE QUEEN - and - LORNA BOURGET Applicant REASONS FOR DECISION of the HONOURABLE JUDGE ROBERT D. GORIN