IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140910

Docket: M122648

Registry:
Vancouver

Between:

John Charles
MacKinnon

Plaintiff

And

Rabeco Holdings
(1989) Ltd. and Efrian Lavine

Defendants

Before:
Master Harper

Reasons for Judgment

[1]            
The defendants apply pursuant to Rule 7-1(18) of the Supreme Court
Civil Rules, B.C. Reg. 168/2009 for an order that the officer in charge at
the Langley Detachment of the Royal Canadian Mounted Police (the “RCMP")
produce documents concerning a criminal investigation and conviction of the
plaintiff arising out of an incident which occurred on June 25, 2012 (the
“June 25, 2012 incident”) and additionally an incident which is alleged to
have occurred in 2009 which was investigated by police, but where no charges
were laid (the “2009 incident”).

[2]            
In the June 25, 2012 incident, the plaintiff, an elementary school
teacher, was observed taking photos and videos of females at a Walmart store.
The incident was investigated by the Langley RCMP. They seized his cell phone
which contained the videos and photos. The plaintiff was cooperative with
police and gave a full confession. The plaintiff was charged with one count of
surreptitiously unlawfully observing or recording for a sexual purpose a person
in circumstances that give rise to an expectation of privacy contrary to
s.162(1)(c) of the Criminal Code, R.S.C., 1985, c. C-46 to which
the plaintiff pleaded guilty and received a conditional discharge.

[3]            
In the 2009 incident, the plaintiff took clandestine photos of a woman.
The incident was reported to police in Langley who investigated, but no charges
were laid.

[4]            
The RCMP take no position as the application is made in the format set
out in Wong v. Antunes, 2009 BCCA 278.

[5]            
The amended notice of application sought production of the videos and
photos themselves. In the course of submissions, counsel for the defendants
abandoned that part of the application.

Facts

[6]            
The action arises out of a motor vehicle accident which occurred on June 22,
2010 in Maple Ridge, B.C.

[7]            
The plaintiff alleges that he sustained a brain injury (among other
injuries) as a result of the accident which caused or contributed to an
increase in the frequency and severity of his pre-accident sexually aberrant
behaviour culminating ultimately in a criminal conviction and the cancellation
of his teaching certificate. The plaintiff does not allege that his criminal
conviction per se is compensable.

[8]            
The sentencing proceedings regarding the June 25, 2012 incident
included the following:

1.     Submissions
of crown counsel and defence counsel;

2.     Pre-sentence
report prepared by Jennifer Rusconi dated September 18, 2013;

3.     Report of
a psychiatrist Dr. Biju Mathew dated November 25, 2013;

4.     Report of
a psychologist Dr. Anton Schweighofer dated November 10, 2013;

5.     Report of
Wade Repta, occupational therapist and rehabilitation consultant, dated November 26,
2013;

6.     Various
letters of support for the Plaintiff.

[9]            
Crown counsel refers in his sentencing submissions to there being “a
hundred-plus videos” which are listed in a “video catalogue” prepared by “someone
else” for the Crown. The timeframe for the videos is not clear from the
sentencing submissions, but they include a period of time after the accident
and up to and including June 25, 2012.

[10]        
In his report, Mr. Repta states as follows:

It is this motor vehicle accident
from 2010 that Mr. Mackinnon reported as being responsible to his
personality and behaviour, especially related to his sexual pre-occupation and
acting out.

[11]        
The causal connection between the motor vehicle accident and the
subsequent “acting out” as Mr. Repta put it is also referred to by Dr. Mathews.
Dr. Mathews says: “Premorbidly he has had a degree of sexual deviancy in
the sense that he would access internet porn sites and watch them. Since the
accident the urge to access these materials had become more intense. He also
started taking photographs of attractive females in public places. Prior to
this appointment he was apprehended for taking a photograph of a woman at
Walmart in Langley. The person in question saw him taking the photograph. She
alerted security, confronted him and later he was arrested.”

[12]        
The pre-sentence report prepared by Jennifer Rusconi, refers to the Narrative
Report to Crown Counsel as follows:

“Mr. Mackinnon’s account of the current matter before
the court is consistent with the information provided in the Narrative Report
to Crown Counsel. He admits that following his motorcycle accident he was
having trouble controlling his urges and approximately six months before his
arrest he began taking pictures of attractive women after following them for a
period of time. He states once he started, “I kept going”

He does state that to blame at
least in part is the photographic capability of his cell phone which suggests
to the writer that Mr. Mackinnon would likely benefit from further
intervention related to his sexual behaviour.”

Position of the parties

[13]        
Counsel for the defendants argues that the documents go to prove or
disprove a material fact, they cannot be obtained from another source and they are
not privileged. The defendants argue that the documents sought could be
utilized to prove or disprove the claim that the alleged brain injury reduced
the plaintiff’s ability to control his impulses. Finally, the defendants argue
that the scope of the application is narrowly focussed on two incidents only
and is not a wide-ranging fishing expedition.

[14]        
Counsel for the plaintiff argues that the documents do not go to prove
or disprove a material fact, the defence is engaged in an unsanctioned fishing
expedition, the evidence is insufficient to justify an order for production and
that there are significant privacy issues of the plaintiff and the victims. He cites
primarily K.L.V. v. D.G.R. (1994), 83 B.C.L.R. (2d) 217 and says that
even on the old Peruvian Guano test, the application is a fishing
expedition.

Discussion

[15]        
The test for production of records from a third party is different under

Rule 7-1(18) than it was under the former rule, therefore, care must be
taken not to import caselaw decided under the old rule into an application
under the current rule.

[16]        
As Master Taylor put it in Dosanjh v. Leblanc and St. Paul’s
Hospital, 2011 BCSC 1660 at para. 21: “Whereas the old rules required
the court to consider whether the documents had relevance, the test now as set
out in Rule 7-1(1)(a)(i) is whether or not the documents can prove or disprove
a material fact.”

[17]        
The plaintiff will attempt to prove at trial that the injuries sustained
in the motor vehicle accident caused or contributed to the escalation of his
sexual proclivities. That fact, if found by the trier of fact, is material. The
defendants seek to obtain evidence as to the timeline of the escalation in the
Plaintiff’s sexually aberrant behaviour and compare his behaviour pre- and
post-accident.

[18]        
K.L.V. (supra) is distinguishable on the facts. That case
had to do with an application for the production of a probation officer’s file.
The court refused to allow disclosure of the probation officer’s file on the
basis that the contents of the file would not materially assist the plaintiff
with liability or damages. The contents of the RCMP file in the present case
which the defendants seek do contain documents which in my view go to the
injury and its consequences as claimed by the plaintiff.

[19]        
The plaintiff argues that the production of the documents would be a
breach of the plaintiff’s privacy. However, the plaintiff himself puts the fact
of his claimed increase in sexually aberrant behaviour at issue is claiming
damages for that “injury”. Further, the documents sought were already disclosed
in court at the sentencing hearing. I find that there is no privacy
interest on the part of the plaintiff in this application that merits
protection.

[20]        
The plaintiff argues also that the victims and alleged victims of the
plaintiff have privacy interests that should be protected. The defendants are
not seeking the photos or videos or any information that would identify the
victims, therefore the victims’ privacy will be protected. Also, the affidavit
filed on behalf of the plaintiff revealed two of the victims’ names, although
perhaps this was unintentional.

[21]        
The videos and photographs themselves could prove or disprove the
materials fact of the plaintiff’s increase in severity and frequency of his
sexually aberrant behaviour since they would be graphic depictions of the
behaviour and would have the dates of the incidents attached to them. However,
there are compelling reasons not to order their production and it is a moot
point as the defendants are not seeking their production.

[22]        
Because the defendants are not seeking production of the videos and
photographs themselves (sensibly, in my view because I would not have
ordered their production), secondary documents which refer to the nature of the
images and the dates on which they were made are a reasonable substitute for
those original documents. I find that certain specific documents in the
possession of the RCMP with respect to the 2009 incident should be produced. These
are: the incident report; any statements made by the plaintiff to the RCMP and the
investigating police officer’s notes, with identifying information of the
victims to be redacted.

[23]        
I find that certain specific documents in the possession of the RCMP with
respect to the June 25, 2012 incident should be produced. These are: the
Narrative Report to Crown Counsel; the notes of the investigating police
officer or officers and any statements made by the plaintiff to the RCMP.

[24]        
The video catalogue was referred to by Crown Counsel as being made by
someone other than Crown Counsel. There is no evidence as to who that someone
is. It is possible that the video catalogue was not made by the RCMP and is not
in the possession of the RCMP. There is no evidence before me in this
application that the video catalogue is in the possession of the RCMP and no
evidence from which I can draw an inference that the video catalogue is
probably in the possession of the RCMP. Therefore, I dismiss that part of
the application.

[25]        
As stated above, counsel for the Defendants is not seeking disclosure of
the videos and photos themselves. Any identifying information of the victims
will be redacted.

Order

[26]        
I make the following order:

1.That Sgt. S. Jacobsen, the Officer in Charge of the Royal
Canadian Mounted Police, Langley Detachment, and/or her delegate (the “Police
Officer”) be authorized and directed to, within thirty-five (35) days of
receipt of a copy of this Order, find the following documents as defined in the
Supreme Court Civil Rules:

(a) relating to an incident which occurred in 2009 in
Langley, British Columbia at or near a Chapters store in which the plaintiff
John Charles MacKinnon took one or more clandestine photos of a woman:

(i) Incident report

(ii) notes of the investigating
police officer or officers

(iii) any statements made by the
Plaintiff

(b) relating to an incident which occurred on June 25, 2012 investigated under
Police file No. 716:12-18067:

(i) notes of the investigating police
officer or officers

(ii) Narrative report to Crown Counsel

(iii) any statements made by the Plaintiff

 (collectively “the Documents”)

excluding any videos, photographs and any information that
might identify any individual who is the subject of any video or photograph
taken by John Charles MacKinnon.

2. The Police Officer examine the Documents and determine
which Documents or portions of the Documents may not be produced because they
are:

(a) correspondence or communications between the RCMP and
Crown Counsel, or between the RCMP and solicitors advising them, for the
purpose of giving or receiving legal advice;

(b) documents which would be contrary to the public interest
to produce and in particular, documents which if disclosed could:

(i) reveal correspondence or
communications between the RCMP and Crown Counsel other than those referred to
in paragraph 2(a);

(ii) prejudice the
conduct of a criminal prosecution which is anticipated or has been commenced
but which is not finally concluded, where the dominant purpose for the creation
of the documents is that prosecution (not including reports, photographs,
videotapes or other records of or relating to the incident in question created
by or for the RCMP on their attendance at the scene of the incident or as a
contemporaneous record of such an attendance;

(iii) harm an ongoing
statutory investigation or ongoing internal RCMP investigation;

(iv) reveal the identity
of a confidential human source or compromise the safety or security’ of the
source;

(v) reveal sensitive police
investigation techniques; or,

(vi) harm international
relations, national defence or security or federal provincial relations; or

(vii) protected from
production by the Youth Criminal Justice Act, S.C. 2002, c. 1, or
by any other applicable statue;

3. The Police Officer copy the Documents or portions of the
Documents that satisfy the criteria for production referred to in paragraph 2;

4. The Police Officer make copies
of the Documents available to the Applicant for inspection and collection at
22180 – 48A Avenue, Langley, BC;

5. The Solicitor for the Applicant
will forthwith enter an Order as set out herein and deliver a copy to the
Police Officer and solicitors for the parties to this action;

6. Any reasonable costs incurred by
the Police Officer for the retrieval, production, inspection, copying and delivery
of the Documents be paid forthwith by the solicitor for the Applicant;

7. Within seven (7) days after receipt
by the solicitor for the Applicant of the Documents from the Police Officer
pursuant to this Order, the solicitor for the Applicant provide the solicitors
for each of the parties to the action with a copy of the Documents and the
solicitors for the parties to this action be at liberty to examine the copies
of the Documents received by the solicitor for the Applicant from the Police
Officer; and,

8. Parties to this action and the
Police Officer have liberty to apply to the Court to determine which, if any,
Documents are required to be produced pursuant to this Order.

[27]        
Costs in the cause.

__________ “Master
Harper”__________
Master Harper