RULING

Ontario Court of Justice (Toronto Region)

Between:

Her Majesty the Queen in Right of Ontario (Ministry of Labour)

Respondent

-and-

Advanced Construction Techniques Ltd.

Applicant

Justice: B. Knazan

Date: June 28, 2016

Appearance:

Mr. David McCaskill, Counsel for the Respondent

Mr. Norm Keith, Counsel for the Applicant

Introduction

[1] This application is about what happens when the prosecution has a change of mind and chooses to call evidence that it had previously stated it would not call. The defendant submits that this change of mind deprived it of timely disclosure of that evidence, thereby breaching its right to make full answer and defence. I must first determine what in fact occurred, then assess its impact on the trial. Finally, if there has been an impact on the trial, I must determine what remedy is appropriate.

[2] The defendant, Advanced Construction Techniques Limited (ACT), is charged with three counts under the Occupational Health and Safety Act (OHSA) related to an accident involving the collapse of a drill rig it operated that resulted in disastrous and tragic consequences. Before the trial began, the prosecutor for the Ontario Ministry of Labour advised the defendant that the Crown would not use the results of a laser scan conducted at the accident site as part of a separate police investigation. The defendant submits that the Crown's later decision to call the laser evidence violated its right to a fair trial pursuant to section 11(d) of the Canadian Charter of Rights and Freedoms, and that a stay of proceedings should be granted. In the alternative, the defendant seeks an order declaring a mistrial.

Events Concerning the Impugned Evidence

[3] The evidence at issue is the result of a Light Detection and Ranging Data (LiDAR) scan that Sergeant Gregory Schofield of the Toronto Police Service's Forensic Identification Services Unit took at the scene of an accident. On October 11, 2011, a Bauer RG25S drill rig that ACT was operating at a subway construction site in Toronto tipped over and killed Kyle Knox, a young man working on a machine for another company. Another worker was seriously injured. On October 12, 2011, Sgt. Schofield scanned the site with a FARO 3D scanner, which creates three-dimensional images using light detection and ranging data.

[4] Sgt. Schofield is trained in operating the LiDAR, but is not expert. After he performed the scan, he produced a printed result consisting of images, but did not immediately attempt to interpret those results.

[5] David Duncan and Saeed Khorsand were the two main investigators involved in this case for the Ministry of Labour. Mr. Duncan led the ministry investigation and Mr. Khorsand, a staff engineer, conducted much of the technical investigation. Their quest to determine why the drill rig tipped involved talking to witnesses, investigating the drill rig's specifications and requirements, and determining its location before it tipped over.

[6] The drill rig's original position, vital to determining the cause of the accident, was in a circular area of ground on the York University campus. This circle was enclosed by a series of interlocking secant piles, each in turn the shape of a circle. The drill rig, which was modified in order to construct the secant pilings, stood on the area where an access shaft was finally constructed. The secant tiles interlocked to form the outer concrete wall of the main shaft. In the drilling area, metal plates were on the ground, on top of which the drill rig's caterpillar tracks rested.

[7] During rescue operations on October 11, 2011, people were moving in and around the circle. Police took photographs of the overturned drill rig and the steel plates, as well as of the surrounding area.

[8] After an investigation, the Ministry charged ACT and a co-defendant with charges under OHSA. The Ministry provided 17 volumes of disclosure to the defendants.

[9] The disclosure revealed the fact of Sgt. Schofield's scanning and the results; there were references in both Mr. Khorsand's and Mr. Duncan's reports. Mr. Khorsand's report included a reproduction of a printout of the LiDAR scan, although it is too tiny to be useful. Mr. Duncan's report stated that police attended and used the LiDAR and described what the information revealed. His report stated:

A 3D image was taken of the occurrence by Forensic Identification Services of Toronto Police Services. This information revealed that the platform elevation where the drill rig was situated had a slope of 4% (2.5% gradient) towards the north and 3% (2% gradient) to the west.

[10] He then referred the reader to Mr. Khorsand's report and offered an opinion: "This gradient towards the right front track of the drill rig would have changed its centre of gravity affecting the stability of the drill rig and therefore was a contributing factor in it tipping over."

[11] In 2012, ACT's defence counsel had submitted a request for disclosure, which he concedes was somewhat generic. A year later, defence counsel specifically requested disclosure of the results of Sgt. Schofield's LiDAR scan. He followed this up with a reminder letter on October 9, 2013.

[12] A trial date was set for July 7, 2014. On April 25, counsel for the prosecution emailed defence counsel stating that the LiDAR scan was part of the Toronto Police investigation and formed no part of the Ministry of Labour's investigation. He further advised that the Ministry had the report, but stated, "we cannot access it".

[13] On June 23, Crown counsel sent another email to defence counsel (at that time there were two defendants and two defence counsel), beginning with "A couple of points to discuss in advance of July 7". The third point was:

3. We are considering asking Metro Police to attend the trial and show the LIDAR scan which we have been unable to access as disclosure. It is available for viewing through the police only. If this were to be the case, given the timing, this might not be able to occur until our September dates. May I please have your positions on this?

[14] This was the state of disclosure when the trial began. Crown counsel made an opening statement and provided a witness list that did not include Sgt. Schofield.

[15] On July 14, 2014, a day scheduled for trial, the parties on consent attended the premises of the Toronto Police Service's Forensic Identification Services Unit. The trial continued the next day.

[16] Four witnesses had testified for the prosecution before July 14: David Duncan, Eddie Lopes, Danny Deluca and Patrick Byrne in part. Mr. Byrne completed his testimony and Dr. Myint Win Bo and Gholumneza Hosseinzadeh testified after the July 14 visit to the police station.

[17] Before the scheduled resumption of the trial in January 2015, a conversation and subsequent correspondence occurred between counsel. Also during this period, the co-accused pleaded guilty. While in court together on an unrelated matter on December 19, 2014, Crown counsel and ACT's counsel discussed the prosecution's decision to continue the prosecution and to call Sgt. Schofield as a witness. This conversation was summarized in a letter sent by the defendant's counsel to the Crown on December 23, 2014, in which the defence requested all the "necessary documentation, notes, software, set-up instructions, data collected, analysis and reports prepared by the Metropolitan Toronto Police regarding the 3D imaging, using LIDAR in this matter …", as well as the names of all the police witnesses the Crown intended to call with their will-say statements.

[18] The trial had been set to resume on January 19, 2015. On January 5, the defendant filed this motion seeking a stay of proceedings and in the alternative an order for full disclosure of the LiDAR results. The defence requested that the resumption date of January 19 be used to hear the motion rather than continue with the trial. But there was no argument on January 19, 2015, as Sgt. Schofield had been out of Canada during January and returned only that day.

[19] The defence retained an expert in LiDAR, Dr. Michael Greenspan, who ultimately testified at the trial. He assisted the defendant in making a comprehensive disclosure request for all aspects of the performance of the LiDAR scan and the recording of the underlying data, which ultimately led to images and results being provided.

[20] The Crown agreed to provide much of what the defendant requested, but advised the defence of problems with providing the raw LiDAR data collected by Sgt. Schofield. The Crown originally referred to Sgt. Schofield as "preparing" the data that engendered the comprehensive disclosure request, but later corrected its response to reflect that he only "collected" the data – by performing the scan at the site.

[21] The Crown, however, was unable to provide the raw data that had been collected. First, it emerged that the original data no longer existed, as Sgt. Schofield had overwritten it when the FARO scanner's software consolidated the original raw data in a process known as registration. In addition, the Crown said it had no power to share with the defence the data that was available in the closed proprietary data format.

[22] After defence requests to provide the data in a non-proprietary form that the defendant could access, the Crown did produce non-original data in a format that the defence and its expert could access. In response to requests that the Crown provide notes of Sgt. Schofield, Mr. Duncan and Mr. Khorsand related to the LiDAR investigation, the prosecution responded that it had provided everything that it had.

[23] The trial continued with the evidence of Sgt. Schofield and Mr. Khorsand. The defendant called Dr. Greenspan, who testified on all aspects of the LiDAR, including Sgt. Schofield's method of scanning, the problems that overwriting the original data from the scan could cause, and Mr. Khorsand's methods and his attempts to interpret the data. The defendant did not abandon this motion to stay the charges.

[24] The presentation of evidence concluded on May 15, 2015, and both parties prepared written submissions with one further date for complementary oral submissions on the case as a whole. But prior to that date, the defendant revived this motion for a stay, which it had never abandoned, amending it to add an application for a mistrial and an order for exclusion of the LiDAR evidence, which by then had been disclosed and adduced.

Legal Characterization of the Facts

[25] The defendant alleges an infringement and violation of its right to a fair trial under section 11(d) of the Charter on two distinct grounds. The first concerns the overwritten raw data: the defendant submits that since the original data generated by Sgt. Schofield's LiDAR scan of the accident site did exist at one time, this "lost evidence" warrants a remedy in and of itself.

[26] Second, the defendant alleges that the Crown failed to fulfill its obligation to disclose all relevant evidence, both inculpatory and exculpatory, relating to the LiDAR evidence that it ultimately decided to call. On April 25, 2014, the Crown informed the defendant that the LiDAR data scan formed no part of the prosecution's case. However, well into the trial, the prosecution changed its mind and decided to rely on the LiDAR results and call Sgt. Schofield.

[27] The defendant also submits that even if the June 23, 2014, email and the visit to Toronto Police on July 14, 2014, could be characterized as notice of intent to use the LiDAR evidence, as the prosecution submits, the Crown still did not discharge its obligation to provide full disclosure of all the requested information – disclosure that did not occur until after the motion for a stay was filed on January 5, 2015.

Allegations of "Lost Evidence"

[28] I begin with the allegations of infringement due to lost evidence. This is not a case of lost evidence as defined by the authorities so as to warrant a remedy for violating section 11(d) of the Charter. Although it is not possible to determine from Sgt. Schofield's evidence when exactly he overwrote and thus lost the original LiDAR data, I infer that it occurred shortly after he performed the scan on October 12, 2011, while the police investigation was still independent of the Ministry of Labour's investigation.

[29] This evidence was not in the prosecution's possession or control at that time, as submitted by the Crown and stated in its email dated April 25, 2014. The Crown did, though late in the case, produce everything it had in relation to the LiDAR data. The Crown can only produce what is in its possession and control. That Mr. Duncan's and Mr. Khorsand's reports included references to Sgt. Schofield's results as reported to them did not put the underlying data into the possession of the Crown. Documents in possession of the police were not in possession of the Crown.

[30] However, even if police possession of the data were interpreted as it being available to the Ministry of Labour, Sgt. Schofield's loss of the original data in the process of copying and saving it does not rise to the level of a violation of the defendant's rights. The Supreme Court's observation in R. v. La, in which evidence was lost before the Crown was in a position to preserve it, applies to this situation. The Court stated:

… despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe recognizes this unfortunate fact. Where the Crown's explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. (para 20).

[31] Here, the evidence was lost before the Crown had any control of it, or was aware that it was lost; there was no negligence by the Crown at all, let alone unacceptable negligence. Indisputably, the Crown is entitled to change its mind. But the timing of the change of mind can have consequences, and how long the prosecutor can wait to decide what evidence to call is dealt with below.

[32] Also relevant to assessing this part of the alleged breach is the effect of the unavailable original data on the trial. Without the original data, it is of course not possible to determine whether the data that was provided and forms the basis for the inferences urged by the Crown was an exact reproduction of the original. Sgt. Schofield was unable to swear that the reproduction was identical to the original, though he testified that "the overwritten data is effectively the same as the raw data" and "It's still the same data."

[33] If the reproduction was an exact copy, there is no prejudice whatsoever. If it was not an exact copy, then the conclusions that the Crown urges are seriously undermined. Although the onus in the trial is on the Crown to prove the reliability of evidence, the onus in this Charter application is on the defendant to show that the non-original data entered as evidence might differ from the original data. There is simply no way to determine this issue either way.

[34] Crown counsel submits that the possibility that the data in evidence may differ from the original data should go to the weight to be given to both the results and the conclusions that Mr. Khorsand drew from them, not to a conclusion that evidence has been lost. Additionally, because I heard this application after completion of the evidence and closing arguments, I have the advantage of Dr. Greenspan's testimony about the deficiencies associated with any LiDAR data that is not the original data. He was cross-examined and there were submissions on his evidence.

[35] It is even possible to characterize what happened as an advantage to the defence, as the Crown's case is only as strong as the underlying basis for the inferences urged. In R. v. Lyons, Justice La Forest stated that an accused is entitled to a fair trial, not the "most favourable procedures that could possibly be imagined". The Ontario Court of Appeal applied that principle to R. v. Lee Valley Tools, a case concerning the OHSA and "lost evidence" in which a key defence witness died between the accident and the trial. The Court stated that "actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult." (paragraph 26).

[36] In R. v. Bero, in which the driver of a car was at issue, the police had neglected to disclose and preserve evidence that was helpful to the defence, and ultimately destroyed the car. In finding a breach of the accused's right under section 7 of the Charter to not be deprived of his liberty except in accordance with the principles of fundamental justice, the Court of Appeal emphasized that it was not a case "where the destruction was accidental in that it was the product of human error" (at paragraph 39). Here, Sgt. Schofield's failure to preserve the original data can be put no higher than accidental and the product of human error.

[37] Absence of the overwritten, irretrievable data has not led to an unfair trial, and no remedy is warranted based on its unavailability. It has not been shown that the data in evidence is not identical or significantly differs from the irretrievable original, and the argument that the non-original version is unreliable is still available to the defence.

The Crown's Change in Strategy and Late Disclosure of the LiDAR Evidence

[38] The defendant's argument that the Crown's decision to adduce the LiDAR evidence was untimely and infringed on the accused's right to a fair trial is stronger.

[39] The Crown's April 25, 2014, email to the defence, like almost all correspondence and verbal communication, is open to two interpretations. The email stated:

You had also requested that we look into the LIDAR scan completed by Metro Police. While this information was provided to Mr. Khorsand, we do not have a computer available that is able to access this material, hence, it formed no part of our investigation. We do not have possession of this material and no capacity to access it. Should you wish to pursue this matter further, I would suggest that the police be directly approached. We have the report, but cannot access it.

[40] The literal interpretation is that as the LiDAR data formed no part of the Ministry's investigation, it was not in its possession. Another interpretation, one taken by the defendant, is that the LiDAR data would not be adduced in evidence. Whichever interpretation was intended, the language certainly justifies the defence's position that from that point on it did not need to concern itself with the LiDAR evidence.

[41] Nor can the visit to the police forensic unit on July 14, 2014, qualify as sufficient to put the defence on notice that the Crown would call the LiDAR evidence. There is no evidence of what was shown to defence counsel or to the people who accompanied him on that visit. The most I can infer is that the Crown had begun to share what it had regarding the LiDAR evidence.

[42] The notice that the defence did have, and apparently did not respond to, is contained in the June 23 email. It is a statement of what the Crown was considering, which showed good faith in dealing with the defence but did not rise to the level of notice of intent.

[43] I agree with the argument that if the June 23 email and the joint visit to the police on July 14 did constitute the Crown's notice of intent to call the LiDAR evidence, then full disclosure of everything related to the scan in the Crown's possession was required. This would have included all of Sgt. Schofield's notes and any notes made by Mr. Khorsand and Mr. Duncan. It appears as though Sgt. Schofield's notes were not disclosed until he testified in 2015. This failure to supply timely disclosure, I have decided, did not in the end cause significant prejudice. The only prejudice from the notes being supplied late was that it required the defendant to bring a motion in order to obtain the disclosure.

[44] The Crown contends that the July 14 visit to the police put the defence on notice that LiDAR evidence would be adduced, and that this triggered a responsibility on the defence to pursue a more specific request for disclosure, in accordance with due diligence as outlined by the Supreme Court in R. v. Dixon. However, the defence had already made a comprehensive request for disclosure in 2013. The prosecution's April 25, 2014, email relieved the defendant of the obligation to pursue the LiDAR evidence, and neither the June 23 email nor the July 14 visit restarted that obligation.

[45] In R. v. T., the Ontario Court of Appeal reiterated at length Justice Sopinka's discussion in Stinchcombe of the problems presented by late disclosure. Justice Lacourcière stated:

The leading authority in this area is R. v. Stinchcombe, [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1. There is a duty on the Crown to make full disclosure and accordingly the Crown has a duty to obtain from the police – and the police have a corresponding duty to provide for the Crown – all relevant information and material concerning the case. In R. v. V. (W.J.) (1992), 72 C.C.C. (3d) 97 (Nfld. C.A.), Goodridge C.J.N. states, at p. 109:

The duty rests upon Crown counsel to obtain from the police all material that should be properly disclosed to defence counsel. It is not for the court to direct what should pass between the police and Crown counsel but both should be aware that, if Crown counsel is unable to make proper disclosure because he or she has not obtained from the police all such material, a new trial may be ordered. It is, once again, a matter of common sense.

It was made abundantly clear in Stinchcombe, supra, at p. 345 S.C.R., p. 15 C.C.C., that even information that cannot be put in evidence by the Crown but that can be used by the defence in cross-examination or otherwise, should be disclosed to defence counsel. Sopinka J., delivering the judgment of the court, stated, at p. 345 S.C.R., p. 15 C.C.C.:

I am of the opinion that, subject to the discretion to which I have referred above, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses.

Stinchcombe also imposes a duty on defence counsel to bring to the trial judge's attention at the earliest opportunity any failure of the Crown to disclose relevant information. At p. 341 S.C.R., p. 13 C.C.C., Sopinka J. states:

Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible, and, thus, avoid a new trial: see R. v. Caccamo (1975), 21 C.C.C. (2d) 257, 54 D.L.R. (3d) 685, [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

[46] Crown counsel argued strenuously that its June 23 email and the July 14 visit to the police amounted to notice that triggered a defence obligation to bring to my attention, earlier than January 5, 2015, the failure of the Crown to disclose the relevant information. He urges me to infer that there was constant discussion about this between July 14 and December. But he acknowledges that there is no evidence of what went on between them, and takes it no further. To begin with evidence of what transpired between counsel would entirely upend this trial if it required testimony from counsel.

[47] In order to draw the inference that Crown counsel urges, I would have to impute to defence counsel a less-than-straightforward dealing with the Court in pursuing this motion, behaviour so serious that it would border on improper by virtue of even bringing this motion. I am not prepared to do that on this evidentiary basis.

[48] In R. v. Singh, Justice Pardu, ruling on a costs motion awarded against the Crown, emphasized defence counsel's obligation to diligently pursue the material that it was entitled to. But in that case the Crown had advised the defence of its intention to disclose the material (paragraph 42). Here, the Crown did not take that position because it did not have the material to disclose. Any ongoing discussion about the possibility of calling evidence, following the equivocal statement that the evidence formed no part of the Crown's case, does not on these facts impose a duty to ask again for what had been requested before, in September 2013.

[49] Although the Crown is not obliged to make an opening statement, or if making one to refer to all the evidence, the prosecution made one with no mention of the LiDAR evidence to be called to prove the slope of the surface under the drill rig. Crown counsel did refer to the exact numbers that Sgt. Schofield produced, and appeared to refer to Mr. Khorsand's report by so doing. But, if anything, the reference to what the evidence would show without reference to the LiDAR scan would reinforce the impression that the April 25 email left or neutralize or leave confused the issues raised in the June 23 email.

[50] Despite this, the Crown's failure to disclose the notes after the LiDAR evidence resurfaced did not cause prejudice. It was only a technical breach, and the defence ultimately received notes. Rather, the problem occasioned by the Crown's very late decision to call the LiDAR evidence, with the resulting delay in the Crown obtaining access to it, meant that five days of evidence had been completed and important Crown witnesses had testified before the defence knew the full case that it had to meet.

[51] Dr. Bo, the Ministry of Labour's soil engineering expert, is a crucial witness. He testified regarding the soil beneath the circle under the drill rig based on samples taken in November 2011, one month after the accident. This evidence, Crown counsel argues, on its own irrefutably proves the uneven sloping nature of the ground. Also, Mr. Khorsand used Dr. Bo's measurements, taken for a related but different purpose, to confirm the measurements that he relied on from the LiDAR.

[52] The defence had to cross-examine Dr. Bo within days of being put on notice that the LiDAR evidence might be called, assuming that the June 23 email and the July 14 visit to police amounted to notice. This cross-examination occurred before the defence had the evidence of how the calculations referred to in Mr. Khorsand's and Mr. Duncan's reports were reached, and before it definitively knew that the LiDAR evidence would be called.

[53] While a defendant is not entitled to a perfect trial, as I have stated above, requiring general knowledge before the trial of the type of evidence that the prosecution has is not demanding perfection; it is fair. Although the prosecution did not act in bad faith, the effect of its legitimate decision to change its mind and pursue the LiDAR evidence was an infringement of the defendant's right to make a full defence. Therefore it violated the defendant's rights under section 11(d) of the Charter to be presumed innocent until proven guilty in a fair and public hearing.

[54] The exact questions that the defence would have asked of Dr. Bo, Mr. Duncan or any of the witnesses heard in July would reflect the degree of prejudice occasioned by this breach and what if any is the appropriate remedy. No specific examples have been put forward, but the applicant relies on the general areas that I have discussed and submits with some justification that it is not possible to reconstruct what steps it would have taken if information that ought to have been provided had been.

Remedy

[55] In selecting a remedy for the Charter breach of section 11(d), I am constrained by clear high authority limiting availability of the remedies that the applicant seeks. A stay of proceedings is a drastic remedy reserved for the clearest cases. I have not been persuaded that this case qualifies. The breach was the result of the Crown's legitimate change of strategy, with no bad faith. Disclosure was ultimately provided. The prejudice alleged is general, not specific. Defence counsel declined to speculate as to what questions he would have asked any particular witness with earlier disclosure.

[56] A stay of proceedings is appropriate only when the prejudice to the accused's ability to make full answer and defence is irremediable. In R. v. Vanbots, Justice Reinhardt found that the failure to disclose prosecution evidence until well into the trial met that test. I take no issue with my colleague's analysis of the law and principles relating to a stay of proceedings, but the facts here do not resemble the finding in Vanbots. The omitted evidence in Vanbots was an inspection report on the piece of equipment that was at the heart of the case. That is not so with the LiDAR results. They are in a readily identifiable form that is severable from the rest of the evidence. Other remedies are available, such as recalling witnesses or excluding the evidence that would cause unfairness.

[57] I will return to the concept of irremediability after discussing the test for a mistrial. This test is almost as high as that for a stay of proceedings. In R. v. Toutissani, Justice MacPherson for the Ontario Court of Appeal wrote:

… I explicitly endorse the application judge's statement that "[t]he declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned".

There is good reason for such a strong statement, as highlighted by this case. A seemingly simple criminal trial consumed 45 days of court time spread over an incredible 81 months. Near the end of the trial, the trial judge declared a mistrial, and he did so over the objections of both the Crown and the accused. The "actual harm" caused by this ruling was a manifest failure of justice for the prosecution and accused alike, a substantial allocation of court resources and staff to no effect, and dislocation and stress experienced by many witnesses, again to no effect. It is crucial that trial judges try to avoid these consequences. The application judge's reasoning and order are faithful to this goal. (R v Toutissani, 2007 ONCA 773 at paras 9-10).

[58] Justice MacPherson emphasized that a mistrial should be granted only as a last resort, similar to the high threshold required to grant a stay of proceedings. Therefore, the principle is the same as for a stay.

[59] Here the defence relies on R. v. Fineline Circuits to argue that the prejudice caused by the failure to disclose an investigator's file and a witness's notes that were known to the Crown could not be remedied by anything other than a mistrial. In Fineline, decided shortly after Stinchcombe, Justice Cole interpreted Stinchcombe to say that recalling witnesses was not an adequate remedy for late disclosure. He relied on two cases in which mistrials were ordered after disclosure was made late in the trial. Also, Justice Lacourcière noted Fineline in R. v. T., supra, with seeming approval.

[60] The late disclosure in Fineline was substantial and not as sharply defined as here. A mistrial may have been an appropriate remedy in that case, because otherwise the breach or infringement would have been irremediable, and because the case met the Toutissani test for a mistrial, but that is not so here. There is another remedy.

[61] While the defendant's factum in support of the motion sought to exclude the LiDAR evidence under section 24(2) of the Charter, defence counsel indicated at the oral hearing of the motion that he had effectively concluded that excluding the evidence would not be an adequate remedy for the irremediable prejudice that his client had suffered. He declined an invitation to develop the argument that admission of the LiDAR evidence "would bring the administration of justice into disrepute."

[62] Nonetheless, after requesting oral submissions from Crown counsel, I have considered the position advanced in the defendant's written submissions and subjected the breach as I have found it to s. 24(2) of the Charter following the framework that the Supreme Court established in R. v. Grant. Section 24(2), referring to proceedings under s. 24(1), contemplates exclusion of evidence as one of the just and appropriate remedies. Therefore, having found infringement of the right to make full answer and defence, and being asked for an appropriate remedy that this Court is competent to grant, I proceed to consider under s. 24(2) whether the admission of the impugned evidence would bring the administration of justice into disrepute.

[63] According to Grant, this requires a three-pronged inquiry, followed by balancing the results. The three-pronged test is: (i) the seriousness of the Charter-infringing state conduct, (ii) the impact on the Charter-protected interests of the accused, and (iii) society's interest in adjudication on the merits.

[64] Here, the Crown's breach was not egregious. It is preferable that the prosecution decide on its case well before the start of the trial and disclose all relevant evidence. However, the LiDAR results were in police possession and not easily accessible by the Ministry of Labour. The Crown made an attempt to be fair in advising the defence on June 23, 2014, that it was considering calling the police to the trial to show the LiDAR results. Once the Crown decided to call the evidence, it cooperated with the defence's request, initiated by this motion, and attempted to make right the wrong its change in strategy had caused, which included the offer to recall Dr. Bo and Mr. Duncan.

[65] The impact of the violation on the accused's rights is significant: the right to make full answer and defence and prepare a cross-examination of important witnesses such as Mr. Duncan and particularly Dr. Bo while armed with an overview of the case is fundamental to a fair trial. Not only cross-examination of specific witnesses but the overall trial strategy is affected by late disclosure.

[66] The first two Grant lines of inquiry point in opposite directions here, with the second category strongly suggesting exclusion because of the significant impact of the infringement on the defendant's right to a fair trial. Only in this circumstance is resort to the third line of inquiry necessary. In this case, I conclude that admitting the LiDAR evidence would bring the administration of justice into disrepute. This even though it has already been heard and had been fully disclosed to the defendants in the best form that existed, and approximately three days of trial were devoted to it being adduced and then answered, and full written submissions have been made on it.

[67] The reliability of the evidence – calculations based on a process that was vigorously challenged and produced secondary results about which it cannot be determined whether they are accurate – is not great. And exclusion of the LiDAR evidence is not fatal to the prosecution. Though it seriously weakens its case on the count relating directly to the slope of the work area, the Crown still argues that there is sufficient evidence on this charge apart from evidence that depends on the LiDAR result. Excluding the LiDAR evidence will not exact too great a toll on the truth-seeking goal of the criminal trial.

[68] Section 24(2) of the Charter requires consideration of all the circumstances, as R. v. Grant recognized. In considering whether admitting the LiDAR evidence would bring the administration of justice into disrepute, I have considered the offer to recall the witnesses that Crown counsel made. In R. v. T., supra, the Ontario Court of Appeal cited the Fineline ruling with approval. Justice Lacourcière wrote:

Ever since the Crown's duty to disclose has been elevated to a constitutional imperative, courts have been interpreting the duty in a very strict fashion. In R. v. Fineline Circuits Ltd. (1991), 10 C.R. (4th) 241 (Ont. Prov. Div.) at p. 256, for example, Cole Prov. Div. J. noted that since Sopinka J. wrote in Stinchcombe, supra, at p. 343 S.C.R., p. 14 C.C.C., that "the obligation to disclose is a continuing one and disclosure must be completed when additional information is received", it followed that:

a. Neither an offer to recall witnesses nor an adjournment can cure a substantive breach of the right to receive timely and full disclosure.

[69] Without the availability of exclusion as a remedy under s. 24(2), I would be left to choose between an unfair trial and a mistrial in a case that Crown counsel characterized as long and complex, and involves a fatality and pain for the deceased's family as well as the injured worker and the co-workers who witnessed the tragedy. Either choice would bring the administration of justice into disrepute.

[70] Exclusion is the just and appropriate remedy. It leaves the trial intact, it does not end the prosecution, but it remedies the unfairness occasioned by the late decision to call the LiDAR evidence and the delay in providing it to the defence so that it could formulate strategy and cross-examination before the bulk of the Crown's case was presented in July 2014.

Brent Knazan

Ontario Court of Justice

June 28, 2016