Her Majesty the Queen v. Cassidy [Indexed as: R. v. Cassidy]

69 O.R. (3d) 585

[2004] O.J. No. 39

Docket No. C38117

Court of Appeal for Ontario

Doherty, Goudge and Cronk JJ.A.

January 9, 2004

Charter of Rights and Freedoms -- Fundamental justice -- Disclosure -- Accused charged with possession of child pornography -- Charges based on material retrieved from accused's computer hard drives using two software programs -- Accused entitled to disclosure of copies of hard drives -- Accused also entitled to have his counsel or expert attend at police premises and apply software programs to accused's copies of hard drives in private -- Crown not being obliged to purchase copies of software programs for accused or pay for training accused's expert in their use -- Canadian Charter of Rights and Freedoms, s. 8.

Remedies -- Stay of proceedings -- Crown refusing to comply with trial judge's order for disclosure and consenting to accused's application for stay of proceedings -- Crown appealing -- Crown admitting on appeal that its position on disclosure at trial was erroneous -- Stay could not be upheld on basis on which it was granted as trial judge had erred as to extent of Crown's disclosure obligation -- Stay nevertheless appropriate as it would be unfair to allow Crown to force accused to new trial after maintaining clearly inadequate position on disclosure for two years -- Canadian Charter of Rights and Freedoms, ss. 7, 24(1).

The accused was charged with five counts of possession of child pornography. The charges were based in large part on material which the police retrieved from [page586] the accused's computer hard drives by using two software programs. The Crown provided the accused with copies of the files which were the subject of the charges, but refused to provide either access to or copies of the full hard drives or the two software programs. The accused applied successfully for an order under s. 24(2) of the Canadian Charter of Rights and Freedoms for production and disclosure of copies of both the hard drives and the two software programs. The Crown advised the trial judge that it would not be complying with the order and consented to the accused's application to stay the charges. The Crown then appealed the stay which the trial judge granted. On appeal, the Crown agreed that the accused should be provided with access to the hard drives by receiving true copies of those hard drives.

Held, the appeal should be dismissed.

The Crown should have been ordered to provide copies of the hard drives to the accused and access to the two software programs by allowing defence counsel or his expert to attend at the police station and, in privacy, apply the two software programs to the accused's copies of the hard drives. It was unnecessary for the Crown to go beyond that and, as ordered by the trial judge, purchase copies of the programs for the accused or pay for training the accused's expert in their use. The stay order could not be sustained on the basis on which it was made.

The Crown now admitted that the position it took before the trial judge was wrong and did not fulfil its disclosure obligations. However, it maintained that erroneous position and launched an appeal which resulted in a two-year delay in the proceedings. The Crown should have rethought its position on disclosure two years ago instead of on the eve of the appeal. It would be an unfair and abusive exercise of prosecutorial discretion to allow the Crown to force the accused to a new trial now. A stay of the charges was appropriate.

APPEAL by the Crown from a stay of proceedings.

Cases referred to R. v. Banas and Haverkamp (1982), 1982 2107 (ON CA), 36 O.R. (2d) 164, 65 C.C.C. (2d) 224 (C.A.); R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, 117 Nfld. & P.E.I.R. 269, 165 N.R. 241, 365 A.P.R. 269, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 24(1)

Scott C. Hutchison, for appellant. Morris Manning, Q.C., and Jonathon T. Feasby, for respondent.

[1] BY THE COURT: -- On July 4, 2001, the respondent was charged with five counts of possession of child pornography. The charges were based in large part on material which the police retrieved from computer hard drives in the respondent's possession by using two software programs known as ENCASE and DIGIT. This appeal concerns the extent of disclosure of electronic information to which the respondent is entitled in the circumstances of this case.

[2] The relevant facts are quite simple. Four of the five charges against the respondent arise directly from the materials consisting of image files on the hard drives of the computers owned or used [page587] by the respondent. They were extracted by the police using the two software programs. Both programs are covered by copyright, although the Crown has not raised that as a consideration in this appeal. ENCASE is available commercially at a cost of about US$2,500. Training to use the program can be obtained for a further US$2,000. DIGIT, however, is a program developed for use in law enforcement and, while available to the police, it cannot be purchased by members of the public.

[3] The Crown disclosed to the respondent the files which were the subject of the charges by providing discs containing copies of the files in exactly the same folders as they were found in the various hard drives. However, the Crown refused to provide either access to or copies of the full hard drives or the two software programs.

[4] As a result, the respondent sought an order, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, for production and disclosure of copies of both the hard drives and the two software programs.

[5] On December 17, 2001, Epstein J. concluded that both the hard drives and the two software programs were relevant and necessary for the respondent to make full answer and defence and that there was no reason why the disclosure sought cannot or should not be provided. She therefore ordered that the Crown provide the respondent with copies of the hard drives, and both software programs and, if required, all reasonable costs of training to use the ENCASE program.

[6] On March 28, 2002, the Crown advised the trial judge that it would not be complying with this order and therefore consented to the respondent's application to stay all five charges. The same day, the trial judge made the stay order requested.

[7] In this court, Mr. Hutchison for the Crown, who was not counsel below, argued that the disclosure order below went too far and that the stay should be set aside and a new trial ordered. However, in this court, its position was considerably different from the one taken before the trial judge. Before us, the Crown did not seek to contend that the respondent should not have access to the hard drives and the two software programs as part of his disclosure entitlement. Nor could such a position have been successfully maintained in the circumstances of this case. [page588]

[8] Rather, the Crown agreed with the respondent that he should be provided with access to the hard drives by receiving true copies of those hard drives. The only difference between the parties at the commencement of argument in this court concerned access to the two software programs and it too was a much narrower difference than at first instance. By the conclusion of argument that difference had essentially vanished.

[9] The Crown proposed to provide access to the respondent by allowing counsel or his expert to attend at the police premises and, in privacy, apply the two software programs to the respondent's copies of the hard drives.

[10] For his part, counsel for the respondent was prepared to live with this proposal, and did not strenuously press his request made below for copies of the two programs. Nor did he argue that his expert needed the ENCASE training and was entitled to receive it at the Crown's expense.

[11] We agree that in this case the proper disclosure order is that the Crown provide copies of the hard drives to the respondent and access on the basis proposed to the two software programs used to retrieve the material which is the subject of these charges.

[12] This will allow the defence to replicate in privacy the process used by the police to obtain the material underpinning the charges and to explore other matters that might reasonably be relevant to making full answer and defence, such as the context in which the material was found, or the dates on which it was saved to the hard drives.

[13] It is unnecessary for the Crown to go beyond that to purchase copies of the programs for the respondent or to pay for training the respondent's expert in their use. The evidence does not suggest that either step would permit the accused to do anything with the hard drives relevant to the defence that could not be done with the disclosure proposal now being made by the Crown.

[14] We suspect that an order similar to the one we would propose will be sufficient to ensure that the Crown meets its disclosure obligation in most cases involving electronic information. However, if there are cases in which the Crown's disclosure obligation can be met only by providing the accused with copies of software and the training to use it, that will be for the trial judge to consider when those cases arise.

[15] We thus conclude that the disclosure order appealed from went too far in the circumstances of this case. Since that order constitutes the foundation for the consent order to stay the charges, the stay order itself cannot be sustained on the basis upon which it was made.

[16] However, the Crown has still not made the disclosure constitutionally required of it and were the trial to proceed we would have to make an order for disclosure in the terms we have described.

[17] Our task, then, is to determine whether the appropriate order is to substitute the proper disclosure order and direct a new trial, as contended for by the Crown, or, as argued by the respondent, to conclude that the interests of justice now require that the [page589] proceedings be stayed. We conclude that the latter is the proper course, and in the circumstances the charges against the respondent should continue to be stayed.

[18] We are faced with a most unusual situation. The Crown now accepts that the position it took before the trial judge was wrong and did not fulfil its disclosure obligations. The respondent accepts that the position advanced by the Crown for the first time in oral argument on appeal does afford adequate disclosure. We agree. There was nothing to prevent the Crown from taking this position two years ago before the trial judge. Instead, it maintained what it now concedes was an erroneous position and launched an appeal which resulted in a two-year delay in the proceedings.

[19] This court has recognized in several cases that the Crown is not entitled to appeal immediately from every adverse legal ruling it gets in the course of a trial. It can bring the trial to a close and launch an appeal, if the adverse ruling makes the continuation of the proceeding fruitless from the Crown's perspective. As Martin J.A. said in R. v. Banas and Haverkamp (1982), 1982 2107 (ON CA), 36 O.R. (2d) 164, 65 C.C.C. (2d) 224 (C.A.), at p. 169 O.R., p. 230 C.C.C.:

We do not think that the Crown, in the circumstances, is precluded from appealing the directed verdict because Crown counsel decided not to continue with the trial which he considered would be fruitless and which would not result in a conviction due to the erroneous exclusion of vital evidence. We are satisfied that if the trial judge had not excluded the evidence of the intercepted private communications the verdict of the jury would not necessarily have been the same. However we wish to point out that if in a particular case we considered that Crown counsel had unreasonably declined to present substantial evidence in his possession which would support a conviction merely in order to appeal an adverse ruling on the admissibility of evidence, we would not hesitate to hold that the Crown in those circumstances was precluded from appealing an acquittal. We are, however, satisfied that this is not what occurred here.

(Emphasis added)

[20] In R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1, L'Heureux Dubé J. for the majority brought Banas and similar cases within the purview of the abuse of process doctrine as it applies in the context of Crown appeals from acquittals or an equivalent order such as a stay of proceedings. She said this, at p. 619 S.C.R., p. 12 C.C.C.:

However, had the conduct of the Crown in those cases been such that a stay of proceedings would have been warranted, as Martin J.A. seems to infer in his obiter dicta in Banas, supra, it might very well be that the Court would have found an abuse of process. It may well be that a Court of Appeal might find abuse of process in a case where the Crown refuses to continue a trial, despite sufficient evidence to found a verdict, for the sole purpose of obtaining an interlocutory appeal on an adverse ruling. Such an appeal [page590] would not be available to the accused in the parallel situation, and the accused would be forced to undergo an unnecessary second trial. As such, a case might be made that the Crown's conduct constitutes an unfair and abusive exercise of the prosecutorial discretion conferred upon it.

[21] In this case, the respondent sought disclosure two years ago. The Crown refused to respond adequately, taking a position that clearly fell short of its constitutional requirement. It maintained that position until argument in this court, when it altered that position to one that recognized the Crown's constitutional obligation. It sought an order from this court in those terms, and the respondent essentially consented. Two years ago, instead of revising its position to that it now acknowledges to be constitutionally mandated, the Crown chose to appeal. Had it not altered its position in argument in this court, its appeal surely would have failed. However, had it adopted its current position two years ago, rather than pursuing this appeal, the trial would in all likelihood have proceeded two years ago.

[22] We see a strong analogy between a Crown decision to proceed immediately to appeal when it has substantial other evidence available to it, and the Crown decision to proceed immediately to appeal when it has available to it an alternative order that would satisfy its disclosure obligations and obviate the need for an appeal. In both cases the accused is exposed to a potentially unnecessary appeal. Indeed, the present situation is worse, given that the Crown now concedes that the position it took at trial was wrong. To be blunt, regardless of the position of the defence, the Crown should have rethought its position on disclosure two years ago at trial instead of on the eve of the appeal.

[23] In our view, it would be an unfair and abusive exercise of prosecutorial discretion to allow the Crown to force the respondent to a new trial now. It maintained a disclosure position that is clearly constitutionally inadequate for two years, during which the respondent has been free of the criminal justice system, when, had it done then what it now recognizes to be required of it, the respondent's trial could have proceeded two years ago.

[24] Thus, in the result, we find that, albeit for different reasons, the stay of these charges is appropriate. The appeal is therefore dismissed. While the respondent requests an order for costs, we see no basis for doing so here.

Appeal dismissed. [page591]