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EVIDENCE - Disclosure of records of complainant or witness to accused

Friday, August 07, 2020 @ 6:11 AM  


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Appeal by Morton from his convictions for criminal harassment, bribery, breach of trust and unauthorized use of a computer. The appellant and two co-accused, McNish and Braile, worked for a private security company while they were also police officers. For many months, the accused followed, harassed and intimidated the complainant to obtain negative information about her for a high-conflict child custody dispute. Four ITOs had been sworn in support of production orders that allowed the police to obtain e-mails, text messages and photographs that showed the steps in the harassment campaign and bank records that showed payments to the appellant. The first ITO indicated Braile provided a statement of his involvement in the surveillance of the complainant. Braile consented to the police searching his phone and e-mail. The ITO disclosed Braile’s employment as a police officer was suspended and that he was a suspect in two other criminal investigations. The ITO outlined the complainant's account of being followed and harassed and police records confirming the appellant's queries about the complainant. The trial judge found there was no evidence the affiant intentionally withheld information in the first ITO to enhance the application. He further found the information provided by Braile was amply corroborated in the ITO. He found the appellant’s s. 8 Canadian Charter of Rights and Freedoms (Charter) rights had not been violated and dismissed the application to set aside the production orders. He declined to order third-party records related to the other police investigations and disciplinary proceedings of Braile.

HELD: Appeal dismissed. Braile’s character was clearly portrayed in the ITO. More examples of the same character traits would not have affected the issuing judge’s analysis to the point that the production orders could not have issued. On any view of Braile’s information, the production orders could reasonably have issued. Even if all the information provided by Braile were excised, the ITO contained sufficient evidence to support the production orders. Much of the late-requested disclosure would not have been useful on the ITO voir dire. The trial judge did not err in dismissing the application for a declaration the appellant's s. 8 Charter rights were violated or the disclosure application.

R. v. Morton, [2020] A.J. No. 720, Alberta Court of Appeal, B.K. O'Ferrall, E.A. Hughes and J. Antonio JJ.A., June 25, 2020. Digest No. TLD-August32020007