IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is an application by Executive Flight Centre (“Executive”) for an order adjourning this trial on the grounds the Crown has breached its Section 7 Charter right to make full answer and defence by failing to disclose relevant documents necessary for the preparation of its defence.  Executive submits that the only appropriate remedy for this breach, at this time, is an adjournment. 

[2]           Mr. Lasante joins Executive in this application.  Their co-defendant, Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Forests, Lands & Natural Resource Operations (“MFLNRO”) and the Ministry of Transportation and Infrastructure (“MTI”) takes no position. 

[3]           The Crown denies any breach has occurred in this instance.  It submits that it has, certainly by this September 2017, made full disclosure.  It further submits that it met its disclosure obligations under Stinchcombe by January 25, 2017, at the latest. 

[4]           Crown submits, in the alternative, that even if a breach is found, the nature of the breach and the documents at issue, in particular, demonstrate that the appropriate remedy at this point is not an adjournment; rather, the order of witnesses can be structured so as to allow the defendants to prepare their case.

[5]           Each of the three co-defendants in this trial stand accused, in an 8 count Information, of unlawfully introducing or causing to be introduced a deleterious

[6]           There is no dispute that on July 26, 2013, a truck driven by Mr. Lasante carrying over 30,000 litres of aviation fuel tipped as Mr. Lasante was turning his truck around on Lemon Creek Road.  In the result, most of that fuel spilled into Lemon Creek.

[7]           Following the spill, a private prosecution was commenced by Ms. Marilyn Burgoon on September 29, 2014, charging that Executive and the Province had breached provisions of the Fisheries Act by causing or allowing the fuel to be introduced into Lemon Creek.  By order dated December 12, 2014, following a pre-enquette hearing, this court issued a summons to the Province and to Executive with a first appearance date set for February 3, 2015. 

[8]           By letter dated January 29, 2015, counsel for Executive made its request to the private prosecutor for disclosure of documents.  Counsel for the private prosecutor advised the court in the first appearance that some disclosure had been provided to the defendants on January 26, 2015.  Other disclosure was expected following a Freedom of Information Request. 

[9]           In addition, all of the parties clearly expected additional disclosure to flow from the ongoing investigation as reported by Mr. Gerhart, counsel for the Director of Public Prosecutions (“DPPS”), at many of his several appearances in the private prosecution.

[10]        On January 25, 2016, the DPPS stayed the private prosecution in order to allow the investigation to complete.  It was clear, and I have noted this in my parallel reasons in Executive’s stay application, that everyone anticipated charges would be re-laid at least against Executive, if not the Province.

[11]        Charges were then re-laid against Executive and the Province on July 22, 2016.  These charges included allegations of breaches under the Environmental Management Act as well as the Fisheries Act, and included Mr. Lasante as a co-defendant.

[12]        By letter dated August 3, 2016, counsel for Executive sought disclosure of documents from counsel for the Crown.  On October 5, 2016, the Crown provided a list of initial disclosure in the form of some ten binders.  On January 9, 2017, the Crown provided Executive with a second list of disclosure consisting of three additional binders.  Crown requested defence counsel to review the documents as soon as possible. 

[13]        In the interim, as evidenced in the court record, the parties attended several court appearances.  On October 11, 2015, the Crown advised it expected to finish its disclosure in a few weeks.  In a subsequent court appearance on November 8, 2015, the Crown advised that it was still working on its second instalment of disclosure.  It expected it would finish in three to four weeks.  On December 6, 2015, the Crown again advised they needed more time for disclosure.  The Crown then provided disclosure on January 9, 2016, the day before the next scheduled court appearance on January 10, 2016.  Matters were consequently adjourned to February 7, 2017, where the Crown indicated it would proceed summarily. 

[14]        By letter dated February 24, 2017, Executive advised the Crown of a number of disclosure deficiencies.  Several of those were not finally addressed until September 2017. 

[15]        Executive was advised by Crown, by letter dated March 6, 2017, that it could not respond to the disclosure requests until later in March.  Still, on March 7, 2017, Executive was pressed to enter its plea.  It was not until May 31, 2017, that the Crown responded to Executive’s February 24, 2017, letter and, even still, as I have noted, disclosure requests remained unanswered until late August and early September 2017, though I do not say as a matter of deliberate intention on the part of Crown counsel.

[16]        On May 31, June 16 and July 21, 2017 the Crown provided Executive with additional disclosure.

[17]        By letter dated July 26, 2017, Executive advised Crown of continuing deficiencies in its disclosure, listing 20 item requests.  Those outstanding requests remained an issue until just before this application when they were, I am satisfied, met.  The correspondence and submissions indicate, among other things, that Crown Counsel was unaware of both the existence of and significance of some of the requested items; that it did not have possession or control over others; and still others were in possession of the co-defendant in this case being those Ministries representing the Province.

[18]        Even still, it is the case that Executive sought many of these documents from as far back as February 24, 2017, and received them on the eve of trial.  Most of the documents at issue were provided by Crown to Executive on or about August 25, 2017; some electronic materials were received on August 30, 2017; and finally on September 7, 2017, Crown provided the final documents requested.  I should note at this juncture that Crown had been directed to provide all documents, including in electronic form, to the defendants by August 25, 2017.  I accept Crown’s explanation that the electronic records sought with respect to one expert report were not obtainable until approximately September 7, 2017.  Still, the disclosures cannot be said to have been timely.

[19]        This application was brought on the grounds that the failure to disclose a number of documents and documentary records, including electronic records, constitutes a violation of Section 7 of the Charter.  When the application was heard, all of the documents the Crown was obligated to disclose had been disclosed.  The question then became whether an adjournment was, nonetheless, necessary to ensure the defendant’s Section 7 right to make full answer and defence. 

[20]        That question turns in large part on the nature and quality of the documents and documentary records at issue.

[21]        As I have noted, the defendant, Executive, sought disclosure of some 20 items in its letter of July 26, 2017, but those can be neatly divided into seven discrete categories.  These items are listed in the letter and described in detail in both the submissions of Executive and the Crown filed on this application.  They include:

[22]        I do not propose to review each of these documents.  Suffice it to say that I am satisfied that the documents in the possession of the Crown, or that the Crown ought to have obtained, were provided, however late.

[23]        The most contentious documents, and most troubling on this application, are those involving Corporal Barnhart’s files, including electronic data.  This does, I accept, have some implications for the defendants’ preparation for trial and for their response to Corporal Barnhart’s report as well as the report of Mr. Ekhart.

[24]        What was sought and ultimately disclosed was Corporal Barnharts’ electronic files, including his photographic files which, in turn, included various meta-data and other electronic data enabling the defendant’s expert to assess Corporal Barnhart’s various site measurements.  It remains the case, otherwise, that all of Corporal Barnhart’s file known to have been received by Crown was provided to the defendants in the Crown’s first round of disclosure in October 2016.

[25]        Crown concedes that this documentary material was sought by the defendants at least in July 2017, if not earlier.  Crown also acknowledges that it did not understand the significance of the information requested.  There is some discussion in the correspondence between Crown and counsel for Executive after the July 26, 2017, letter and by the close of August 2017, it is clear that Crown understood it would need to obtain this electronic material from Corporal Barnhart.  The Crown acknowledged also finding one photograph in respect of Mr. Ekhart’s report which was also available in electronic form, and that too was disclosed on the eve of trial.

[26]        At the hearing of this application, Crown concedes that on reflection, the material is relevant in the Stinchcombe sense, but not so relevant as to command an adjournment at this point.

[27]        The defendant, Executive, filed the affidavit of Patrick Ryan who I accept qualifies as an expert in Forensic Collision Reconstruction.  The affidavit was filed in support of the defendant’s submission that the late delivery of Corporal Barnhart’s electronic files impeded Mr. Ryan’s ability to prepare his report.  Having listened to the testimony of Mr. Ryan, I am satisfied that that is not the case.  Mr. Ryan testified, for example, that he would not look at Corporal Barnhart’s materials before conducting his own report.  The late delivery of these materials has little significance for the timing and preparation of Mr. Ryan’s report.

[28]        Executive submits, secondly, that it cannot prepare for its cross-examination of Crown witnesses regarding the state of the Lemon Creek Road without Corporal Barnhart’s electronic data, including his meta data.

[29]        At issue in this instance is the state of the road on July 26, 2013.  Corporal Barnhart attended at the site of the rollover nearly two years after the accident.  Crown notes also that only a few of its witnesses attended the scene on the day.  To the extent the meta data from Corporal Barnhart’s photographs or the information underlying his measurements will have any impact on the defendants’ cross examination of those witnesses, I am satisfied any concerns can be addressed by recalling the witnesses if necessary. 

[30]        Executive submits, thirdly, that without an opportunity to absorb the meta data and other photogrammatic information from Corporal Barnhart’s report, it cannot exactly define the case for the defence.  With respect, given the nature of the materials at issue, I am convinced that any difficulty in that regard can be addressed, if necessary, as the trial proceeds.

[31]        In the end, I am not convinced, even though certain documents have been delivered on the eve of trial, that these are of such a nature as to deprive the defendants of their Section 7 right to make full answer and defence if this matter is not adjourned at this time.  On balance, I accept that for the moment at least other, less significant measures can be taken in the course of the trial to mitigate this late disclosure.  Of course, if, as the trial proceeds, it becomes apparent that such remedies are insufficient, any one of the defendants can reinvigorate this application to adjourn.

[32]        For these reasons, the application to adjourn is denied.