IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           S.P.W. stands accused of two counts, the first allegation relates to touching for a sexual purpose, a young person, contrary to section 153 of the Criminal Code.

[2]           The second allegation is that S.P.W. sexually assaulted a young person contrary to section 271 of the Criminal Code.  Crown is proceeding by indictment.  The Information was sworn on July 11, 2017.

[3]           No arraignment or election has been made by S.P.W. yet as I understand it as S.P.W. seeks a ruling from the Court prior to election.  S.P.W. cites R v. Little, 2001 ABPC 13 at paragraph 25 and 31 for the basis of this decision.

[4]           Crown Counsel has asked Mr. Los, counsel for S.P.W., to sign an undertaking verbally on August 22, 2017 and in writing on August 24, 2017.

[5]           Mr. Los has received paper disclosure materials including transcripts of the electronic disclosure but has not been provided with disclosure materials by way of electronic format.

[6]           Crown counsel has indicated to S.P.W. his counsel is required to first sign the undertaking prior to being given the materials in an electronic format.

[7]           S.P.W. has applied to this Court that his Charter rights have been breached, specifically section 7, the right to make a full answer and defence.

[8]           S.P.W. submitted documents called “Application Materials” but has not filed an affidavit nor was there viva voce evidence at the hearing.  On this aspect, I find the reasons of Judge Bayliff compelling at paragraph 13 of R. v. A.H., 2016 BCPC 323 (“A.H.”) where she stated:

[9]           S.P.W. claims that Crown counsel has asked his counsel, Mr. Los, to sign an undertaking at Tab 1 of the Application Materials about August 24, 2017.  Mr. Los has already signed the Crown Counsel Disclosure Notice with five applicable conditions contained on the first page of Tab 2 of the Application Materials, namely that:

[10]        S.P.W. submits that Crown counsel asked Mr. Los to sign an alternative draft undertaking on September 27, 2017 at Tab 3 of the Application Materials.  Specifically here Crown is asking defence counsel to sign an undertaking as follows:

[11]        S.P.W. has argued that his counsel should not sign any undertaking with respect to the disclosure materials as they are already subject to the already mentioned five conditions in the Crown Counsel Disclosure Notice at Tab 2.  In the alternative, S.P.W. argues that there should not be more conditions than what the Honourable Judge Bayliff ordered in the A.H. case (which is Tab 4 of the Application Materials).  The wording of that undertaking was:

[12]        S.P.W. submits there are very serious implications and repercussions of counsel signing an undertaking which is the most serious form of promise that a lawyer can provide in the course of his or her professional career and is governed by the Law Society of British Columbia.  Further, defence argues that there are additional common law, legal and ethical limits on defence counsel.

[13]        Further defence counsel argued that crown has not justified the limitations or restrictions on the disclosure.

[14]        Additionally, defence argues that S.P.W. is not a youth such as the youth accused in the A.H. case.  S.P.W. is not subject to peer pressure in the same manner as the youth accused in the A.H. case. 

[15]        S.P.W. has stated that the undertaking condition has interfered with the client-solicitor relationship by putting conditions on their communications and with S.P.W.’s ability to provide a full answer and defence by limiting the lawyer’s ability to prepare for trial.

[16]        Crown counsel states that defence counsel has received the materials in a paper format; the issue today is disclosure in an electronic format.  What is at stake here are two DVDs, both statements of the complainant, a young person, and one CD of a civilian statement.

[17]        Crown contends that their concern as in the A.H. case is the inadvertent dissemination of electronic disclosure.

[18]        Crown counsel has argued that contrary to defence submissions when they compared the accused being of adult age as compared to the youth accused in the A.H. case, the real issue is that here as in the A.H. case both the complainants are of a young age, under the age of 18 and that is the most important factor. 

[19]        Crown counsel has admitted that they initially sought the undertaking from Mr. Los in Tab 1 but then asked Mr. Los to sign the undertaking contained at Tab 3 of the defence Application Materials.  Crown counsel argues that the Tab 3 undertaking is less restrictive than the one that Judge Bayliff ordered in the A.H. decision.

[20]        Crown counsel has submitted that in this particular case, at the time of the alleged offence, the complainant had been in a Cadets program where the accused was a trainer and then an employee at the Cadets program.  The young person, having conflict in her home, had moved into the home of the accused which he shared with his wife and children.  Crown therefore alleges that the accused was in a significant position of authority over the complainant and that there are significant privacy concerns at stake.

[21]        Crown further argues that the undertaking does not undermine the solicitor-client relationship as the accused and his lawyer already have the disclosure and transcripts of the CD and DVD so the undertaking relates only to the digital format of disclosure.

[22]        In the R. v. Papageorgiou, 2003 CanLII 52155 (ON CA), at paragraph 8, the Ontario Court of Appeal held that:

[23]        The burden of proof at this hearing rests with crown counsel.  Crown counsel was seeking the undertaking from defence counsel before providing the disclosure in a digital format.  I quote from R. v. Little, 2001 ABPC 13 (CanLII) at paragraph 23:

[24]        I am satisfied that there is an implied undertaking not to use disclosure except for the purposes of making a full answer and defence in criminal proceedings.  See R. v. Basi, 2011 BCSC 314 (CanLII) at paragraph 78, and in R. v. Smith, 1994 CanLII 5076 (SK QB), (“R. v. Smith”) and R. v. Little, 2001 ABPC 13 (CanLII) at paragraphs 32-38.

[25]        This is echoed in the recent decision of the Honourable Justice Edwards in R. v. Mossaddad, 2017 ONSC 5520 at the last sentence of paragraph 38:

[26]        I therefore concur with defence counsel that there are implied undertakings which exist with respect to crown disclosure in criminal proceedings.  The issue then arises, in cases dealing with sexual offences and youth complainants, are there further restrictions in the form of defence undertakings which ought to apply?

[27]        I find persuasive the A.H. case in which the Honourable Judge Bayliff states at paragraph 21:

[28]        I note that the circumstances in the A.H. case are very similar to the case before me in that there is a young complainant who is not of adult age, and there is an allegation of a sexual offense, and there is a Section 7 application regarding the manner of crown counsel’s disclosure.  The dissimilarity as pointed out by defence counsel is that the accused in this instance before me is of adult age.  In my view, in this circumstance, I find it compelling that the use of an undertaking concerning the limitation of crown disclosure would bind defence counsel however it would not bind the accused.  Further, I find that the privacy interests of a complainant who is a young person is very high. 

[29]        In the decision of R. v. Little, 2001 ABPC 13 (CanLII) (R. v. Little) at paragraph 31, the court found that each case must be decided upon its own merits and I also adopt that approach.  However, in the R. v. Little case, the court found that crown disclosure was to be provided to defence counsel with no conditions.  I distinguish this case before me from the R. v. Little case on its facts such as the very different alleged offences involved.  In the R. v. Little decision in paragraph 54, the court found that there was no evidence to support concerns with respect to public safety, the security or privacy of witnesses or victims, or the need to protect the integrity of the administration of justice.  In fact the court goes on at paragraph 58 and distinguishes the impaired driving charges from offences involving sexual offences:

[30]        In other words the court in R. v. Little found that with cases involving sexual offences, the balancing of competing interests, that is the restriction on disclosure, was outweighed by the privacy and protection of the complainants.

[31]        I find the words of Justice Abella of the Ontario Court of Appeal as she then was in R. v. Stuckless, 1998 CanLII 7143 (ON CA), to be appropriate here:

[32]        R. v. Stuckless is a sentencing case.  However, I think the very strong wording used in the case is helpful analysis in coming to a determination that the privacy interests of the young complainant are very high as compared to the rights of the accused to make a full answer and defence.  The impact on the accused’s rights in this situation of the requirement of a written undertaking are minimal as set out in the R. v. Smith case.

[33]        I note that the accused in the R. v. Smith case is of adult age and the two complainants at the time of the offence are 15 years old and 13 years old, similar to the young age of the complainant in the case before me.  Also similarly, the accused has applied for an order that his Charter rights were breached by the requirement that his counsel sign an undertaking.  And similarly, the accused in R. v. Smith asks the court for the disclosure of crown counsel materials to be provided with no conditions.  Additionally, there is no evidence in R. v. Smith that the accused is the sort of person who might wrongfully use the disclosure materials.  Likewise, here there is no specific evidence of S.P.W. being a person who might disseminate the materials.  Rather it is the nature of the sexual offences against a young person, whose privacy interests are very high, and the evolving nature of technology and the fear of inadvertent disclosure by the accused that the Crown counsel has submitted to play a role in this case.

[34]        I note that here Crown counsel is only seeking an undertaking with respect to the digital disclosure, that is two DVDs and one CD.  The nature and extent of the restrictions on disclosure is a critical aspect to this type of application.  The degree to which, if any, the restrictions sought by Crown impede on the ability of the accused to make full answer and defence are critical factors.

[35]        In coming to my determination in this case, I find the paragraphs by the Honourable Justice Walker in R. v. Smith in the first paragraph after the heading “Conclusion” (unnumbered paragraphs) to be compelling here:

[36]        I find that it is not a violation of S.P.W.’s Section 7 Charter rights for Crown counsel to require that Defence counsel enter into an express undertaking concerning the handling of the disclosure materials.

[37]        I find that the undertaking as proposed by Crown counsel at Tabs 1 and Tabs 3 are unduly restrictive.  I find the undertaking as proposed by the Honourable Judge Bayliff in the A.H. case to be persuasive as set out earlier in paragraph 11 of this decision. 

[38]        Here I note that Crown counsel has released the Report to Crown counsel, police officer notes and police reports and the written transcript of the complainant’s statement as well as a written transcript of another witness’ statement.  These materials will still remain under the express undertaking as contained in the five clauses in Crown Counsel Disclosure Notice set out in Tab 2 and set out in this decision at paragraph 9.  Accordingly, the undertaking will only apply to the digital forms of disclosure as follows: