Court of Queen’s Bench of Alberta
Citation: R v Brandsma, 2015 ABQB 466
Date: 20150722
Docket: 150274371U1
Registry: Edmonton
Between:
Her Majesty the Queen
Crown - and -
Brian Brandsma
Accused |
_______________________________________________________
Honourable Madam Justice J.B. Veit
_______________________________________________________
Summary
[1] Rod Knecht applies to quash the subpoena issued by Mr. Brandsma for attendance at Mr. Brandsma’s mischief trial. Mr. Brandsma allegedly telephoned 911 at least 265 times over a 10 month period. Chief Knecht, of the Edmonton Police Service, swears that he has no personal, or material, information about the issues in Mr. Knecht’s trial.
[2] The application is allowed: the subpoena is quashed.
[3] There was no jurisdiction to issue the subpoena: the person who issued the subpoena did not make the required investigation: LEC. A subpoena causes serious interruption in a person’s life: it is not available merely for the asking. In the circumstances here, because Mr. Brandsma was given the opportunity of providing evidentiary support for his request, it is not necessary to decide if the issuance of the subpoena was void or merely voidable.
[4] Having been given the opportunity to establish the necessary link between the prospective witness and the issues at trial, Mr. Brandsma has failed to do so. He alleges only that Chief Knecht’s link with these proceedings is at best collateral, and therefore not admissible at trial. By Mr. Brandsma’s own account, Chief Knecht’s possible evidence is not material because it is not relevant to the charges. The focus in these mischief charges will presumably be on whether Mr. Brandsma’s repetitive calls interfered with the lawful operation of the 911 service; since Mr. Brandsma appears to agree that he made the calls, the only element of the charges left to prove will be the alleged interference, obstruction, or interruption of the 911 service. Chief Knecht has no evidence to give on that element: Mazhari, Barton.
[5] In any event, even if Mr. Brandsma had established the necessary link of relevance and materiality between Chief Knecht and the issues at trial by linking his 911 calls to what he believes to be constant police surveillance, Chief Knecht has satisfied the onus of establishing that he has no material evidence to give at Mr. Brandsma’s trial. In the circumstances, including Mr. Brandsma’s own reference to mental health issues and the lack of objective support for Mr. Brandsma’s assertions, I accept Chief Knecht’s evidence that he has no knowledge of any police directive to engage in 18 hour a day, every day, aerial surveillance of Mr. Brandsma’s activities.
Cases and decision cited
[6] By the applicant: R v Valkonen, 2004 ABQB 322
[7] By the Court: R v LEC, 2012 SKQB 410; Mazhari c R. 2009 QCCA 1880; Nova Scotia (Attorney General) v Barton, 2014 NSSC 145 1995 CanLII 5099.
1. Background
[8] Mr. Brandsma is charged with mischief pursuant to the provisions of s. 430(1)(d) CCC apparently on the basis of what is alleged to be an excessive number of calls made by Mr. Brandsma to the 911 service. The sub-section in question reads:
Every one commits mischief who
. . .
(d) obstructs, interrupts, or interferes with any person in the lawful use, enjoyment or operation of property.
[9] Mr. Brandsma advises that he obtained the search warrant which is the subject of this application merely by requesting one from a counter clerk and filling out the application.
[10] Section 698 of the Criminal Code provides:
Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.
(Emphasis added)
[11] When this matter was first before the Court, Mr. Brandsma was ordered to file an affidavit setting out his reasons for wanting Chief Knecht to give evidence at his trial. He has since provided an unsworn document setting out the basis for his original request for Chief Knecht’s attendance. The applicant and the court accept the unsworn document as if it had been sworn.
[12] Mr. Brandsma agrees that, within a 10 month period, he made at least 265 calls to 911; he frankly notes that he made additional calls from locations outside Edmonton, including calls made from Sturgeon County and from Strathcona County. He adds that police and Alberta mental health services were regular visitors to his home during the period May 2014-2015.
[13] Mr. Brandsma asserts that, at some time in the past, he attended an Edmonton Police stations in an attempt to plead guilty to sins/crimes he had committed. He believes that the EPS decided not to charge him for those crimes but to harass him. He states that, during the past 43 months, he has been the subject of aerial surveillance by the police, every 2-3 minutes, by one or multiple aircraft at the same time, 18 hours a day, every day. He states that on at least one occasion, in July 2014, mental health community workers were instrumental in having him released from police custody after he had attended at a police station; Mr. Brandsma’s understanding is that, on that occasion, the mental health workers informed the police that Mr. Brandsma was not a Form 10. Form 10 is the form which a police officer must file in order to convey a person to a mental health facility pursuant to the provisions of s. 12 of the Mental Health Act which reads as follows:
Peace officer’s power
12(1) When a peace officer has reasonable and probable grounds to believe that
(a) a person is suffering from mental disorder
(b) the person is
(i) likely to cause harm to the person or others or to suffer substantial mental or physical deterioration or serious physical impairment, or
(ii) subject to a community treatment order and is not complying with the community treatment order,
(c) the person should be examined in the interests of the person’s own safety or the safety of others, and
(d) the circumstances are such that to proceed under section 10 would be dangerous,
the peace officer may apprehend the person and convey the person to a facility for examination.
(2) While a person is being conveyed to a facility under subsection (1), the authority in that subsection is sufficient authority to care for, observe, assess, detain and control the person.
(3) When a peace officer conveys a person to a facility under this section, the peace officer shall complete a statement in the prescribed form for the use of the facility, setting out
(a) the name of the person conveyed, if known,
(b) the date, time and place at which the person was apprehended, and
(c) the grounds on which the peace officer formed the peace officer’s belief under subsection (1).
In other words, Mr. Brandsma asserts that mental health workers informed the police that Mr. Brandsma is not likely to cause harm to himself or others and is not likely to suffer substantial mental or physical deterioration or serious physical impairment.
[14] Mr. Brandsma observes that the police are of the view that the alleged aerial surveillance is “all in his head”, that he is “emotionally disturbed”, “paranoid”, “delusional”.
[15] In these circumstances, Mr. Brandsma has been charged with mischief. Parenthetically, one wonders if this is the best solution to the problem posed by Mr. Brandsma’s overuse of the 911 system.
[16] Chief Knecht has filed an affidavit in which he swears that: he does not know Mr. Brandsma or why he has been served with a subpoena; he was not involved in, nor has any personal knowledge of, Mr. Brandsma’s arrest, charging, or criminal proceedings; and he has no material information regarding the criminal proceedings.
2. There was no jurisdiction to issue the subpoena
[17] I adopt the comments made by Currie J in LEC about the serious nature of the issuance of a subpoena:
A subpoena interferes significantly in the life of the witness, requiring that person to interrupt his or her life to attend at court. For this reason it is appropriate that such a court direction can be obtained not just for the asking but only with some evidentiary support.
[18] Courthouse staff are not required to issue subpoenas on demand. On the contrary, their obligation is to satisfy themselves first, that evidence is presented in support of the request and second, that the evidentiary support presented establishes that the proposed witness will likely give material evidence at the trial. Not only is this responsibility set out in the case law, but as noted in Valknonen, that obligation is alluded to in s. 698 of the Code. The necessary inquiry was not undertaken here.
[19] Mr. Brandsma says that the problem with the issuance of the subpoena is not his fault. I agree. Nonetheless, as between two blameless people, the issuer and the receiver, an unlawfully issued subpoena should not burden a prospective witness.
[20] In the event, however, it is not necessary in the circumstances here to determine if the issuance of the subpoena was void or merely voidable: a judge gave Mr. Brandsma the opportunity of establishing the required link of relevance and materiality, and the Court will now turn to that aspect of the application.
3. Mr. Brandsma has not made a link of relevance and materiality between Chief Knecht and the mischief trial
[21] Section 698 of the Code requires that, in order to obtain a subpoena, an applicant must establish that the prospective witness will likely give material evidence. Evidence can’t be material unless it is relevant. Even if it is relevant, it won’t be material unless it is also important, of consequence, significant, grave, weighty. The material evidence must apply to a specific proceeding.
[22] What proceeding is Mr. Brandsma facing? A charge of mischief under s. 430 of the Criminal Code assumes a more than negligible interference or obstruction with property; in order to constitute the crime of mischief, the accused’s actions must constitute more than a mere inconvenience. On the basis of the limited information before the Court on this application, it appears that the charges against Mr. Brandsma will allege some interference by him with the 911 service as a result of his very large number of calls to that service. Because Mr. Brandsma has agreed that he made a large number of calls, the prosecutor and the defence will presumably concentrate on whether Mr. Brandsma’s calls had the effect of interfering with the functionality of the 911 service. In the circumstances here, whether the police service had in fact authorized 18 hour a day aerial surveillance of Mr. Brandsma is not relevant to the issue of whether Mr. Brandsma interfered with any person in the lawful operation of the 911 service. This is a situation, like that in Mazhari, where it is necessary to concentrate not on the general background to the charges, or what can be described as collateral matters, but on the charges themselves, i.e. the elements of the charges, and what the Crown must prove on these particular charges.
[23] Taking Mr. Brandsma’s assertions at face value, they allege only that Chief Knecht knows why and when aerial surveillance was undertaken. Why and when surveillance was undertaken will not be an issue at Mr. Brandsma’s trial. Evidence on that point is therefore not relevant; since it is not relevant, it obviously cannot be material.
4. Chief Knecht has established that it is not likely that he could give material evidence at Mr. Brandsma’s trial.
[24] Finally, in the circumstances here, Chief Knecht has established that he has no material evidence to give at Mr. Brandsma’s trial.
[25] Mr. Brandsma may well honestly believe that he is the subject of relentless aerial surveillance by the EPS. As indicated above, that background to the use/abuse of the 911 system is not relevant to the actual charges faced by Mr. Brandsma.
[26] Even if that general background were relevant at the trial on the mischief charges, in light only of the material provided by Mr. Brandsma himself concerning the involvement of mental health officials in his interactions with the police, Mr. Brandsma has not established that the EPS has engaged in the kind of aerial surveillance alleged. After noting the reception he has had when reporting surveillance, Mr. Brandsma adds:
Well then they should have no problem testifying that they are not following Me, or in no way are having Me under any sort of surveillance in a court of law.
(Emphasis in original)
[27] With respect, individuals should not be put to a disruption from their normal lives to come to court to give evidence when to do so is an exercise in futility because the evidence is not relevant to the charges being tried.
[28] Moreover, objectively, Mr. Brandsma’s assertions of surveillance are not reasonably capable of belief: a deployment of the nature he suggests would be observed by the population of Edmonton and the court can take judicial notice of the fact that no such use of the airways has been recorded.
[29] I accept Chief Knecht’s assertion that he can provide no material evidence on the trial of Mr. Brandsma’s mischief charges.
5. Conclusion
[30] For the reasons set out above, the subpoena issued by Mr. Brandsma to Chief Knecht is quashed.
Heard on the 17th day of July, 2015.
Dated at the City of Edmonton, Alberta this 21st day of July, 2015.
| J.B. Veit J.C.Q.B.A. |
Appearances:
A. Danielle Bourgeois, Field LLP
for the applicant, Rod Knecht
Brian Brandsma
On his own behalf
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