R. v. Birtch, 2024 ONSC 7125
COURT FILE NO.: CR-23-63 DATE: 20241216 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – TREVOR BIRTCH Applicant
COUNSEL: A. Orlov, for the Crown J. Battin, for the Defendant
HEARD: November 12, 2024
MISTRIAL APPLICATION JUDGMENT
CARNEGIE J. (orally)
[1] On August 8, 2024, after a judge alone trial, I found the Applicant, Mr. Birtch, guilty of a sexual assault and a common assault with respect to allegations from complainant T.P. He was scheduled to be sentenced on November 18, 2024. However, on November 12, 2024, the Applicant brought a mistrial application. More particularly, he seeks a mistrial on Counts 1 and 2, exclusively. That is, only on those counts for which he was found guilty. The sentencing hearing was adjourned pending the determination of this application.
[2] On September 3, 2024, the Applicant commenced a second judge alone trial relating to charges from complainant M.P. before another jurist. That trial has now been completed and is pending judgment. Over the course of that trial, the Crown called evidence from witness T.W.S. However, the available evidence from this witness is considered relevant to the defence for not only the M.P. related trial but also the T.P. related trial.
[3] While the T.W.S. statement was disclosed in advance of the T.P. trial, it was disclosed within the Crown’s M.P. digital file only. It was not reviewed by the defence prior to the T.P. trial’s completion. It was first digitally accessed by the defence between the T.P. and M.P. trial, prior to my judgment on August 8, 2024. However, it was not reviewed at that time. Instead, the defence only reviewed the T.W.S. statement when a transcript of it was disclosed on August 23, 2024 – after my T.P. trial judgment, but before the commencement of the M.P. trial.
[4] The defence asserts proper Crown disclosure would have enabled it to call T.W.S. as part of the T.P. trial. This witness had important evidence respecting possible witness/complainant collusion and/or could establish an improper motive to fabricate on the part of complainant T.P. Denied proper disclosure of T.W.S.’s statement, it is alleged that the Crown has breached the Applicant’s s. 7 Charter right to fundamental justice. As a result, he seeks a mistrial of the T.P. trial proceedings to redress the injustice caused.
[5] The parties are content to rely upon the evidence filed as part of this application. No further evidence was adduced, no cross-examination of the Applicant’s affidavit was conducted.
Factual Background
[6] On February 2, 2022, the Applicant was arrested respecting the complaints of T.P. He was charged with two counts of sexual assault and one count of common assault. The trial of these allegations occurred before me on May 27th – May 30th, 2024. As noted, my trial judgment was rendered on August 8, 2024, wherein he was found guilty of two of three counts.
[7] On April 26, 2022, Mr. Birtch was arrested respecting the complaints of M.P. He was charged with three counts of sexual assault. The judge alone trial of those allegations commenced before another jurist on September 3, 2024, and has now been completed. Judgment respecting this trial is outstanding.
[8] Two separate police investigations, involving two different investigative teams, was carried out. The Applicant was ultimately prosecuted on two separate Indictments with two different Crown counsel conducting the prosecutions. Further, disclosure respecting each of these sets of allegations was separated. The Crown established two different files on their electronic disclosure ‘hub’ for which the Applicant’s counsel was granted access. He had the same defence counsel for both sets of charges.
[9] As part of the M.P. investigation, witness T.W.S. was audio interviewed on June 25, 2023. T.W.S. had been a long-time friend of the Applicant. As this statement revealed, she was also known to both complainants and discussed their relative allegations with each of them. Indeed, days after T.W.S. spoke with T.P. about her experiences with the Applicant, and other alleged misconduct, T.P. came forward and made her complaint to police. The following is a summary of the pertinent details respecting the T.P. prosecution which were revealed to police during T.W.S.’s audio statement:
- T.W.S. disclosed concerns about the Applicant’s sexual proclivities and how they may impact vulnerable persons in the community;
- T.W.S. was concerned about T.P.’s relationship with the Applicant. In particular, knowing the Applicant, she was concerned that a vulnerable member of T.P.’s family was at risk;
- She confronted T.P. to tell her “everything I know about this guy”: that he was talking negatively behind T.P.’s back; that he had been “cheating on her the whole time”; that he always said, “really terrible, awful, unhinged things about her”; that he was talking about how he had been sexually violent with her; and that he had been talking about “turning her into a coke head” and about how she has been affected;
- T.W.S. commented that she does not think that T.P. “realizes she’s the victim”. Instead, T.P. defended him and commented about how much she knew about the Applicant;
- T.W.S. revealed to T.P. that she had been the Applicant’s confidant and, therefore, knew about their relationship and his methods. T.W.S. knew that the Applicant does not love T.P. and is a risk to her family;
- T.W.S. implored T.P. to get away from the Applicant;
- T.W.S. revealed that T.P. continued to defend him, claimed she needed to hear it from him, that she loved him and would “stand by him no matter what”;
- T.W.S. then advised the detective that “literally not even a week went by and it was in the news that he had been charged”;
- T.W.S. then went on to reveal details of the Applicant’s alleged post offence conduct vis-à-vis T.P. She advised that T.P. had threatened a restraining order against him and that, as a result, when T.P. spoke to police they laid charges instead. T.W.S. now speculated that T.P. “had to start playing the victim”; and
- T.W.S. claimed that T.P. was “angry that she had to play the victim. Yet, only days before that she had told T.W.S. “I will love him forever. I will stand by him forever. I will be there for him.” T.W.S. queried how T.P. went from defending and supporting him to a ‘victim’ in a matter of days, after they spoke.
[10] T.W.S.’s audio statement was not disclosed to the defence until March 13, 2024, 75 days or, approximately 2 ½ months before the commencement of the T.P. related trial. No explanation for this delayed disclosure was provided by the Crown. This statement was electronically disclosed as a properly labelled witness statement file, in audio format. No summary or transcript was disclosed. However, the T.W.S. statement was disclosed as part of the M.P. prosecution file only. Despite references to T.W.S.’s communications with complainant T.P., this file was not disclosed as part of the T.P. prosecution file. No evidence was provided for why this statement was not disclosed as part of the T.P. prosecution file. In argument, the Crown merely suggested that it was disclosed in this fashion due to the separate investigative teams involved.
[11] When this disclosure was made on the Crown’s Digital Disclosure Hub, counsel received an email identifying the fact that new disclosure was being made.
[12] During the Applicant’s trial involving complainant T.P.’s allegations, witness T.W.S. was not called as a witness.
[13] On June 13, 2024, defence counsel “accessed” the T.W.S. audio statement from the Digital Disclosure Hub for the M.P. prosecution file, apparently, for the first time. This was 15 days after the completion of the T.P. trial.
[14] On August 23, 2024, the Crown disclosed a transcript of the June 25, 2023, T.W.S. statement. They advised that they intended to call T.W.S. as a witness in the M.P. related trial. The Applicant advised that only then, 16 days after the T.P. related trial judgment on August 8, 2024 was rendered, was this statement reviewed in preparation for the M.P. related trial commencing on September 3, 2024.
[15] When that trial was completed, and before the date of sentencing related to the T.P. trial, the Applicant brought this application.
Position of the parties
[16] The Applicant asserts that the audio statement of T.W.S. was not disclosed prior to the T.P. trial. Despite the fact that the statement was disclosed within the M.P. file in advance of the T.P. trial, he takes the position that until a transcript of the statement was provided, the Crown failed to disclose it at all. And further, the Crown never disclosed a transcript of this statement as part of the T.P. file disclosure. Having failed to make this disclosure, even with respect to the audio statement as part of the T.P. prosecution file, the Crown breached its disclosure obligation. This breach of the Applicant’s s. 7 Charter rights merits the declaration of a mistrial.
[17] The Crown asserts that disclosure was made. While not perfectly executed, relevant disclosure was directed to the Applicant’s counsel in advance of the T.P. trial. The Crown is not required to disclose transcripts of audio statements. The Applicant’s counsel failed to diligently review disclosure made or seek out relevant identifiable disclosure. As a result, there has been no breach of the Applicant’s s. 7 Charter rights and, in the alternative, the test for granting a mistrial has not been met.
Analysis
[18] First, I will address the Applicant’s disclosure complaint respecting the Crown’s failure to disclose the T.W.S. audio statement in the form of a transcript. The Applicant has offered no authority for the proposition that the Crown must provide a transcript of relevant statements before it constitutes appropriate, or constitutionally sanctioned, disclosure.
[19] On its face, this argument is absurd. Short of disclosure being inaccessible based upon the manner in which it was disclosed, the Crown is under no obligation to disclose witness statements by transcript. [1] Here, the Applicant raises no issue with the accessibility of the T.W.S. audio statement on March 13, 2024. It was simply ignored until after the T.P. trial had been completed, and beyond “accessing”, had not been reviewed until the Crown, as a courtesy, provided a transcript of the statement in advance of the M.P. trial.
[20] The Applicant’s only legitimate disclosure complaint relates to the Crown’s failure to disclose the T.W.S. audio statement within the confines of the T.P. prosecution file.
[21] For a claim asserting a s. 7 Charter breach for non-disclosure, I should first determine whether the non-disclosure results in s. 7 breach based on interference with the Applicant’s right to make full answer and defence and then determine the appropriate remedy.
1) Was there a s. 7 Charter breach?
[22] The Applicant is entitled to full and complete disclosure. The Crown is duty bound to disclose to the defence all evidence that is not clearly irrelevant or all evidence that could possibly be relevant to the case, regardless of whether the Crown plans to call that evidence at trial, or whether it helps or hurts the Crown’s case. Implementation of this duty allows a criminal defendant to make full answer and defence. [2]
[23] In R v La, Justice Sopinka affirmed that the principles of fundamental justice include the right to disclosure:
In Stinchcombe (No. 1) the right to make full answer and defence of which the right to disclosure forms an integral part was specifically recognized as a principle of fundamental justice included in s. 7 of the Charter. This was reaffirmed in Carosella. In para. 37 I stated on behalf of the majority:
The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence and which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice. [3]
Did the Crown adequately disclose the T.W.S. statement?
[24] The Crown does not dispute that the T.W.S. statement is relevant disclosure respecting the T.P. prosecution. It constitutes first-party Stinchcombe disclosure and the Crown was under the obligation to provide it to the Applicant in advance of the T.P. trial.
[25] However, the Crown asserts that the T.W.S. statement was “properly disclosed” 2 ½ months before the T.P. trial to “the same defence counsel, for the same accused, on the same disclosure sharing portal, by the same electronic means.” Further, the Crown notes that the audio file was identifiable and not obscured: “Witness Audio STMT – Winter Smith June 25, 2023 – EDITED.avi.” This file was received by the Applicant once it was placed upon the Crown’s Digital Disclosure Hub on March 13, 2024, with a notification email sent. That it was not accessed on the disclosure hub by the Applicant’s counsel until June 13, 2024, and, thereafter, not reviewed until receipt of a transcript on August 23, 2024, is not in the control of the Crown. The Crown met its constitutional disclosure requirements.
[26] Once more, the Crown asserts that the manner of disclosure is entirely within Crown discretion. The statement in question was disclosed as part of the M.P. prosecution file because that is how the investigation unfolded. Two separate investigations were undertaken with two separate investigative teams, and the T.W.S. statement was procured as part of the M.P. complaint investigation. However, despite the Crown’s concession that this statement was directly relevant to the T.P. prosecution, I have no evidence why the Crown failed to disclose the T.W.S. statement within the T.P. prosecution file as well.
[27] By analogy, the Crown raises R v Papageorgiou [4] in support of its proposition that the manner of disclosure is at the discretion of the Crown. There, access to video statement disclosure was at issue. After discharging counsel, the self-represented accused sought disclosure of the video statement(s) previously provided to his former counsel. Given the nature of this disclosure, the Crown required that the accused appear at their office for viewing. The summary conviction appeal court faulted the Crown for this alternative disclosure practice and issued a stay of proceeding. The Ontario Court of Appeal affirmed the propriety of this disclosure practice citing no evidence of prejudice from the appellate. Having considered this ruling, I find that it is patently distinguishable from this case. There, disclosure was offered to an accused who was aware of its existence. The alternative access regime was founded upon legitimate policy and security concerns. Here, disclosure was omitted or misdirected from the Applicant’s T.P. prosecution file, such that it was not brought to his attention until it was too late.
[28] While I agree that the manner of disclosure is in the Crown’s discretion, as long as it is accessible, the fact of making disclosure is not. The Crown did not disclose the T.W.S. statement within the T.P. prosecution file. It did not do so despite the fact that it was relevant to that prosecution. The Crown produced no evidence on this application. It argued, nonetheless, that the manner of disclosure mirrored the process of the Applicant’s two concurrent investigations. Assuming I accept that, I find that it presents no answer to their disclosure obligation. As conceded, a competent review of that statement would have identified its relevance to the T.P. prosecution file. Disclosure is the Crown’s obligation and the Crown, not the police, is in the best position to supervise disclosure distribution. It cannot cede that responsibility to the structure of a police investigation which here involved two separate investigative teams. Context for why this statement may not have been disclosed in the T.P. file is no excuse for the fact of its non-disclosure. The Applicant is entitled to relevant disclosure, despite its source, when it is in possession of the Crown.
[29] Further, I find that the fact that the Applicant had the same counsel for each prosecution is no answer to the Crown’s lack of proper, targeted disclosure. The Crown, not the defence, elected to prosecute these complaints separately. The Crown, not the defence, elected to structure the separate prosecutions into two distinct files. The Crown, not the defence, elected to process disclosure through that structure identifying Stinchcombe disclosure for each, separately. When disclosure was made, it was made separately to defence counsel, not globally with respect to the Applicant himself. I find that the Crown cannot now, after-the-fact, point to the Applicant’s consistent legal representation as a means of excusing its lack of proper targeted disclosure. It does not control who represents the Applicant on each prosecution and ought not later justify its failure to make properly targeted disclosure on that basis.
Was the defence diligent in accessing the disclosure?
[30] The Crown submits that defence counsel lacked sufficient due diligence in reviewing available disclosure and raising this issue as part of the T.P. trial. T.W.S.’s statement and her related cellphone extraction report were both disclosed in the M.P. prosecution file on March 13, 2024. It is argued that it is “entirely on the Applicant to determine whether it was relevant to the trial” in the T.P. case. The Applicant could have, therefore, called T.W.S. as a witness at the T.P. trial if he had determined that this disclosure was relevant.
[31] This argument relies upon the presumption that preparation for the T.P. trial required a review of disclosure made respecting the M.P. prosecution file. That this must have occurred but that the Applicant tactically decided not to pursue the T.W.S. evidence as part of the T.P. trial. The Applicant must then live with his tactical decisions.
[32] Of course, this argument must fail because it is clear that the T.W.S. disclosure was not first accessed until June 13, 2024, two weeks after the completion of the T.P. trial.
[33] Should defence counsel have accessed the T.W.S. disclosure in the 2 ½ months leading up to the T.P. trial, regardless of what file it was disclosed in? Of course. That would have been ideal and, perhaps, should have been expected. But we now know that this did not occur. As a result, the Applicant did not have the capacity to raise the issue during the T.P. trial nor, for that matter, make any tactical decisions about it.
[34] The Crown also notes that in the M.P. prosecution file, M.P.’s statement was disclosed on December 2, 2022. Therein, she references both T.P. and T.W.S. A review of that statement would have identified the complainants’ connection and that T.W.S. may have relevant evidence on the T.P. complaints. This submission implies that the Applicant ought to have sought additional disclosure from the Crown, namely whether T.W.S. had been interviewed.
[35] Whether or not that should have been expected, T.W.S. was interviewed and her statement was, for an unknown reason, not disclosed for 8 ½ months. When it was disclosed, it was not disclosed as part of the T.P. prosecution file. I cannot, therefore, infer that inquiries by the Applicant would have resulted in a different disclosure process. Nor, on this evidentiary record, can I draw conclusions about the extent to which the M.P. prosecution file was reviewed in advance of the T.P. trial.
[36] That leaves the issue of promptly raising the T.W.S. disclosure issue after the statement was “accessed” on June 13, 2024, and, therefore, before my trial judgment on August 8, 2024. Here, the Applicant does not explain why there is a distinction between “accessing” the disclosure in June and “reviewing” it in August, after my judgment was rendered. He simply asserts that it was not reviewed until a transcript was received in anticipation of the M.P. trial. I presume, as the T.P. trial judgment had already been rendered and the M.P. trial was about to begin, the Applicant waited to conduct that proceeding before raising the disclosure complaint with me after the M.P. trial was finished.
[37] I have no evidence to suggest that any tactical decision was made between June 13th and August 8th, 2024, to wait it out pending my trial decision on the T.P. matter. The only uncontested evidence I have is that defence counsel simply failed to review the T.W.S. evidence until the eve of the M.P. trial. And then, I presume, realized that this disclosure was also relevant to the completed T.P. trial matter.
[38] With this in mind, I find that I cannot visit upon the Applicant the less-than-ideal disclosure review practices of his counsel. I have no evidence that the Applicant or his counsel was aware of the T.W.S. disclosure until after the completion of the T.P. trial, including my trial judgment, and, as a result, I have no basis to conclude that any tactical consideration was in play.
[39] Defence counsel’s disregard of identified M.P. prosecution disclosure in advance of this trial does not absolve the Crown of its disclosure obligation. While it may prove relevant to a remedy, it does not diminish the fact that the Crown failed to provide proper and targeted disclosure for the T.P. prosecution. I find that there has been s. 7 Charter breach for inadequate disclosure which has interfered with the defendant’s ability to make full answer and defence.
2) What is the appropriate remedy for this s. 7 Charter breach, determined post verdict?
[40] As noted, the Applicant seeks a mistrial given the present stage of proceedings and the nature of the Charter breach. Here, a remedy can be grounded at common law or through s. 24(1) of the Charter. Upon my review of authorities, a mistrial is the most common remedy sought for post-verdict disclosure complaints, but re-opening the defence case and a stay of proceedings are available options.
[41] The Crown noted that, in Stinchcombe, defence due diligence is a relevant consideration when a trial judge is called upon to determine what may be the appropriate remedy for a disclosure breach:
Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. [5]
[42] In R v Arabia, Justice Watt of the Ontario Court of Appeal reviewed the governing principles for re-opening the case and/or considering a mistrial even after the trial judge has “recorded findings of guilt”. In such circumstances, a “more rigorous test” is required to protect the integrity of the process, which includes finality. First, when considering re-opening or a mistrial based upon fresh evidence, the test cited in Palmer and Palmer v The Queen [6] respecting the introduction of ‘fresh evidence’ on appeal was favoured:
- the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;
- the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial;
- the evidence must be credible in the sense that it is reasonably capable of belief; and
- it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [7]
[43] In addition to the Palmer criteria, a trial judge facing an application to re-open or declare a mistrial after a finding of guilt must consider whether the application is merely an attempt to reverse a competent trial tactical decision. As I have noted, an accused must ordinarily live with the consequences of those decisions.
[44] In Arabia, after the appellant was found guilty of drug offences, he applied to re-open the defence case or have a mistrial declared. He sought to file two affidavits calling into question who was responsible for the subject marijuana grow operation (another party taking responsibility – under the protection of the Canada Evidence Act) and questioning the court’s finding that given the narcotic’s quality it could not be possessed for the purpose of trafficking. The trial judge dismissed this application and went on to sentencing. The court denied the request to re-open based principally upon the prejudice this would cause to the prosecution. The mistrial relief was denied citing that no procedural error or serious misconduct flawed the trial proceeding. Finding that the trial judge utilized the wrong test for post-verdict re-opening or mistrial applications, the Court of Appeal applied the Palmer test and found that the same result was inevitable. A lack of due diligence and credible, admissible evidence doomed the application to failure.
[45] In R v Kowall [8], after the appellant was found guilty of fraud and theft, he dismissed his trial counsel and, before the sentencing hearing, brought an application to re-open the defence case to adduce fresh evidence from his former lawyer and two “fresh evidence” witnesses. The trial judge, citing a lack of sufficient relevance, due diligence, and tactical decision-making, refused to re-open the defence case after she gave her reasons for judgment. This was not interfered with by the court of appeal, deferring to the trial judge’s discretion and, itself, refusing to admit the ‘fresh evidence’.
[46] Here, unlike in Arabia and Kowall, I acknowledge that the proposed “fresh evidence” of T.W.S. would meet the Palmer criteria for the following reasons:
- it is new evidence because the manner of disclosure was inadequate and contributed to its lack of review until after the trial verdict was rendered;
- as I have already concluded, while this evidence was available in advance of the T.P. trial, counsel’s failure to read ahead within the M.P. prosecution file does not amount to a lack of due diligence. Had the disclosure been properly directed, there is no evidence to suggest it would have been missed or that there was any tactical advance to not calling this witness. Indeed, if this evidence was known, it defies logic that it would not have been relied upon during T.P.’s trial;
- T.W.S.’s evidence is clearly relevant to T.P.’s credibility, relating specifically to either the prospect of collusion or an improper motive for the complaint;
- it is credible on its face by its nature, how it intersects with the complaint narrative and by the fact that the Crown relied upon this witness as part of the M.P. trial; and
- given my August 8, 2024 ruling, I find that this evidence could reasonably have impacted my third stage W.(D.) analysis which was central to the findings made.
[47] Having met the Palmer criteria, built upon the foundation of a s. 7 Charter breach, what is the most effective remedy to redress the harm caused by the inadequate Crown disclosure? I find that re-opening the defence case would inadequately address trial fairness concerns. Introducing T.W.S.’s evidence into the defence case would invariably require consideration of recalling T.P. to respond. There would then also be the potential prejudice to the Applicant who foreseeably may have had relevant responding evidence. Recalling him might also have to be considered. However, in the face of renewed Applicant evidence, my existing credibility conclusions raise a perception of partiality concern. Overall, the inclusion of the T.W.S. evidence would not simply add to the existing trial record, as was the case in Arabia and Kowall, but would be intertwined into that narrative requiring its substantive reconstitution. It would potentially significantly recast my former analysis of the party’s credibility overall. As my judgment was driven by a W.(D.) analysis, the implications of this evidence, if believed, could be pervasive. In effect, re-opening the case could do more mischief than starting anew.
[48] The Applicant has not sought a stay of proceedings which is entirely appropriate given the lack of evidence respecting any bad faith or improper exercise of Crown discretion. That remedy is reserved for only the clearest of cases. In the context of this narrative, granting a stay would, itself, shock the community. The Crown’s incomplete direction of disclosure, which manifested here as defence prejudice prohibiting the Applicant’s capacity to make full answer and defence, does not justify prohibiting a hearing on the merits of T.P.’s complaints.
[49] Further, I cannot criticize the fact that this application was brought as opposed to simply proceeding to an appeal and there bringing a motion for the introduction of fresh evidence. As the Kowall court recognized, “[t]he trial judge is in a better position to assess the proposed fresh evidence than is the appellate court. Had counsel in this case waited and raised the matter for the first time on appeal he would have faced an argument that he failed to exercise due diligence in presenting the evidence.” [9]
[50] A mistrial should only be granted as a “last resort where no other remedy will adequately redress the harm occasioned.” [10] Justice Trotter faced a similar situation in R v Drysdale. There, after finding the accused guilty based upon strong adverse credibility findings, including rejecting the accused’s evidence on identification, new evidence touching upon identification came forward during the sentencing hearing. The court concluded that the only reasonable course of action would be to declare a mistrial because, in light of the credibility findings, “any attempt to rebuild [the accused’s] credibility findings on a different footing would be disingenuous ... he, along with reasonably informed members of the public, would always wonder whether my “new” conclusions and reasons were infected by my prior adverse finding of credibility”. [11] As I have already noted, I share that concern.
[51] Overall, I believe that the only appropriate remedy to redress this Charter breach is, as requested, a mistrial. I recognize the benefit of finality and the burden that another trial may have upon the complainant and the overall administration of justice. However, a meaningful redress to this Charter breach is required to ensure that the principles of fundamental justice and the right to make full answer and defence is truly respected.
Conclusion
[52] The Applicant’s right to full and complete disclosure was breached by inadequate Crown disclosure efforts. This regrettable confluence of events has resulted in a breach of the Applicant’s s. 7 Charter rights which can only meaningfully be addressed by a mistrial declaration.
[53] The Applicant has specifically requested that a mistrial should only be declared with respect to the first two counts, wherein I have made findings of guilt. The third count on this Indictment was dismissed. Beyond this pleading, however, I have not heard from counsel on the scope of a mistrial declaration and, in particular, whether it ought to apply to Count 3 on this Indictment. I, therefore, invite further submissions on this issue.
[54] For the reasons provided, the Applicant’s application for mistrial is granted subject to further submissions and a ruling on its scope.
M. B. Carnegie Released: December 16, 2024
[1] I note that nowhere in the Martin Report is there reference to, recommendation for or a suggestion that the Crown is required to provide transcripts of Stinchcombe relevant witness audio or video statements as part of their disclosure requirement. Report of the Attorney General’s Committee on Charge Screening, Disclosure, and Resolution Discussions (the Martin Report), (1993, Queen’s Printer for Ontario)
[2] R v Stinchcombe, [1991] 2 SCR 326
[3] R v La, [1997] 2 SCR 680 at para 23
[4] R v Papageorgiou, [2003] OJ NO 2282 (CA) at paras 17-18
[5] Stinchcombe, supra, at para 24
[6] Palmer and Palmer v The Queen (1979), 50 CCC (2d) 193 (SCC) at p 205
[7] R v Arabia, 2008 ONCA 565 at paras 45-46, citing R v Kowall, [1996] OJ No 2715 (CA) at paras 31-32, leave to appeal refused, [1997] 1 SCR viii
[8] Kowall, supra
[9] Ibid, at para 33
[10] R v Griffith, 2013 ONCA 510 at para 39, citing R v Touttissani, 2007 ONCA 773, at para 9