Court Information

Court: Ontario Court of Justice

Date: June 24, 2019

Between:

Her Majesty the Queen

— AND —

Mario Thibodeau

Before: Justice of the Peace T. Allison Forestall

Heard on: April 29, 2019

Ruling on Motion released on: June 24, 2019

Counsel

F. Stephens — counsel for the prosecution

M. Sciarra — counsel for the defendant

Decision

JUSTICE OF THE PEACE Forestall, T. A.:

Introduction

[1] Mario Thibodeau is before this court charged with Careless Driving, contrary to s. 130 of The Highway Traffic Act of Ontario.

[2] The offence allegedly occurred on October 25, 2016, at the City of Pickering. The allegations involve a motor vehicle collision that resulted in a fatality.

[3] The information was sworn on February 3, 2017. Mr. Thibodeau was summonsed to attend court on February 28, 2017. A written request for disclosure was made that day. There were further court appearances, and a judicial pretrial was set and conducted on July 27, 2017. At that time, Ms. Cain, a provincial prosecutor with the Crown attorney's office, attended the judicial pretrial on behalf of the assigned assistant Crown attorney, who at that time was Mr. David Parke. On July 25, two days before the judicial pretrial, disclosure of D.C. McDonald's reconstruction report was disclosed to defence counsel, as set out at Tab C of the Affidavit of Virginia Ng.

[4] Following the judicial pretrial, this matter was set for trial for three days, commencing April 15, 2019.

[5] On April 15, 2019, assistant Crown Attorney, Mr. Frederick Stephens, who was now the "assigned" prosecutor, commenced the trial by calling a civilian witness to testify. Following her evidence, the next witness to take the stand was Scenes-of-Crime Officer Roy, followed by Detective Constable Alan McDonald. D.C. McDonald was being proffered as an expert in accident reconstruction.

[6] During the qualifications of D.C. McDonald's notes, it came to light that first, D.C. McDonald wished to make a correction or "add" to his reconstruction report and that, secondly, there may be a further supplementary report in existence that had not been disclosed.

[7] After a brief recess, Mr. Sciarra, on behalf of the defendant, requested an adjournment to the next date set for trial in order to consider the defence position and to prepare, if necessary, appropriate paperwork to bring a Charter application before the court. This adjournment request was granted and the matter was adjourned to April 29, 2019.

[8] On April 29, having filed proper notice, the defence brought an abuse of process application, alleging a breach of Mr. Thibodeau's s. 7 rights under the Canadian Charter of Rights and Freedoms, and seeking a remedy pursuant to s. 24(1) of the Charter; namely, a stay of proceedings.

[9] The grounds for application allege three breaches:

• The lateness of disclosure;
• A breach of settlement privilege;
• The loss of evidence.

[10] All three grounds, in my view, are intertwined, but I will attempt to separate them in an effort to deal with them individually, albeit in reverse order.

The Loss of Evidence

[11] Following the collision that occurred on October 25, 2016, Mr. Thibodeau's vehicle was towed from the scene by a local towing company. It remained in an impound facility for 30 days, when it was released for auction. This took place before the defendant was charged in February 2017. This is a motor vehicle collision fatality. One can assume that it was examined at the scene, however briefly, by the investigating officer(s) and, more importantly, by D.C. McDonald, who was called in as the accident reconstructionist.

[12] The defence contends that this loss of evidence is a breach of the defendant's s. 7 rights. I agree. While one can only imagine the resources required to retain motor vehicles for possible defence examination, which is not an issue for this court to deal with. This is a fatality case. If it is determined that an accident reconstructionist is being called to the scene, it is logical that the vehicles may have some significant relevance not only to the police, but also the defence. There is a duty on the police to retain and maintain evidence, not solely for the prosecution's benefit, but so that defence may have access to it should they choose to exercise that option. This was not done. Nor was the accused notified the motor vehicle was being released to the auction. It doesn't appear that the police even turned their minds to this.

[13] The defence relies on several cases to support its position that this is a Charter breach, the first being the decision of R. v. Bero. This is a decision of the Ontario Court of Appeal.

[14] This case involved a charge of impaired driving causing bodily harm, where the driver and a passenger were ejected from the vehicle. The issue boiled down to identity – who was operating the motor vehicle at the time of the collision.

[15] In that case, the appeal court held that the trial judge erred in not finding that the prosecution had a duty to maintain possession of the motor vehicle to allow the defence an opportunity to have it forensically examined, and thus breached the accused's right to make full answer and defence. It referred to the decisions of R. v. La (1997), R. v. Stinchcombe and R. v. F.C.B. (2000), 2000 NSCA 35.

[16] At page 547 and 548 of F.C.B., the Nova Scotia Court of Appeal summarized the approach to be taken when considering if a loss of evidence results in a breach of a Charter right:

1. "The Crown has an obligation to disclose all relevant information in its possession.

2. The Crown's duty to disclose gives rise to a duty to preserve relevant evidence.

3. There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.

4. If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

5. In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.

6. If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights.

7. In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.

8. In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O'Connor.

9. Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary cases, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.

10. In order to assess the degree of prejudice resulting from the lost evidence it is usually preferable to rule on the stay application after hearing all of the evidence."

[17] In the Bero decision, at paragraph 34, the Court said:

"In discussing the approach to be taken in assessing explanations offered by the Crown for the destruction of relevant evidence, Sopinka J., in R. v. La, supra, at p. 107, said,

"In order to determine whether the explanation of the Crown is satisfactory, the court should analyze the circumstances of the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off chance that it will be relevant in the future….."

"[35] In this case, neither the police nor the Crown ever addressed the relevance of the vehicle in the context of the Crown's disclosure obligation. Once the vehicle's preservation was seen as unnecessary for the Crown purposes, no thought was given to its preservation. The investigating officer had nothing to do with the decision to give up possession of the vehicle. Those in the police responsible for the vehicle had no connection to the investigation. The police lost control of the vehicle because the contract it had with the company holding the vehicle only required the company to keep the vehicle for 30 days. Once the police gave up possession of the vehicle, the timing of its destruction became a matter of happenstance. The officer in charge of the investigation was unaware of its destruction until after the defence requested that it be preserved. He appears to have not regarded preservation of the vehicle as any part of the disclosure obligation."

[18] And, at para. 37, the Court said:

"The destruction of potentially relevant evidence is not satisfactorily explained where that destruction is occasioned by a failure to consider whether preservation of that evidence was necessary to meet the disclosure obligations of the Crown. The destruction of the vehicle amounted to a breach of the Crown's disclosure obligations and resulted in a breach of the appellant's rights under s. 7 of the Charter to full disclosure as an adjunct to his right to make full answer and defence."

[19] The Court in Bero goes on to discuss whether the failure to disclose amounts to an abuse of process. The Court finds that a stay resulting from an abuse of process does not require an improper motive in that the Crown or police deliberately set out to destroy evidence or compromise the appellant's rights to disclosure. It again refers to the decision in R. v. La, supra, at 108:

"…..Accordingly, other serious departures from the Crown's duty to preserve material that is subject to production may also amount to an abuse of process notwithstanding that a deliberate destruction for the purpose of evading disclosure is not established. In such cases, an unacceptable degree of negligent conduct may suffice."

[20] In the case before me, I am satisfied that Mr. Thibodeau's s. 7 Charter rights have been breached given the loss of evidence. While photographs were taken by the SOCO officer at the scene of the collision and have been marked as an exhibit, it is the court's view that those photographs are clearly inadequate to sufficiently address the issues that the defence wishes to raise at trial. The defence was entitled to examine the "best evidence" and conduct an investigation as they chose to. This was circumvented by the destruction of this evidence. I will deal with the remedy for this breach at the conclusion of my analysis.

Breach of Settlement Privilege

[21] Following the judicial pretrial held on July 27, emails were exchanged between Ms. Cain, the provincial prosecutor who attended the pretrial, and Mr. Parke, the "assigned" assistant Crown attorney.

[22] Following that exchange, later that same day, on July 27, at 6:31 pm, Mr. Parke sent an email to D.C. McDonald. This email is included at Tab D of the defence affidavit of Virginia Ng. The content of that email is as follows:

"Hi, Al,

I've got carriage of this careless driving case, wherein you did the recon. Defence is suggesting that there is evidence that he was "pushed" into oncoming traffic. My view is that this is tenuous at best, but it will be the main subject of the trial, so I thought it best to get your view.

Would you please review your reconstruction report, the road evidence and the photos of the Thibodeau Silverado. Are you able to say, as an expert reconstructionist, if there is any evidence to support a theory that the Silverado was pushed (from the passenger side) into oncoming traffic?

Please take your time in your review, as I will surely have to disclose your response and it will be the subject of cross-examination when the trial happens. Feel free to give me a call if you've got any questions before you commit something to writing."

[23] There are two issues to be decided on this second prong of the defence application.

1. Does settlement privilege attach to judicial pretrials?

2. If so, does the content of this email breach that settlement privilege?

Judicial Pretrial Settlement Privilege

[24] It is well established in the case law that settlement privilege attaches to settlement negotiations which are clearly a part of the judicial pre-trial process. See R. v. Bernardo, as well as the "Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, or commonly referred to as "The Martin Report".

[25] In R. v. Bernardo, supra, the defence sought disclosure of the pretrial discussions that took place during Ms. Karla Homolka's judicial pretrial.

[26] The Crown argued that there is privilege attached to these discussions and they should not be disclosed. The distinction between that case and the one before me today is that those discussions did not directly relate to Mr. Bernardo, the accused. They related to Ms. Homolka's judicial pretrial and, by the time Mr. Bernardo's counsel was arguing for disclosure, Ms. Homolka's case had been completed and she had been sentenced.

[27] At para. 16, the Court said:

"The Crown also raises the issue of public interest privilege surrounding plea discussions. I agree with the Crown's submissions that there should be a recognized privilege surrounding plea discussions vis-à-vis the accused and the Crown. There are many reasons in the nature of public policy that would suggest that such a privilege does exist or ought to exist in order to encourage Crown and defence to have full, frank and private negotiations in criminal cases. I believe, as in civil cases, settlement negotiation privilege ought to exist. The rules of this court concerning pre-hearing conferences in criminal matters contemplate that those negotiations will normally occur in private and that they will remain confidential, unless a resolution is achieved in which case the discussions would normally be disclosed in court. I am of the view that the public interest is well served by encouraging such frank and full discussion between counsel for the accused and counsel for the Crown. The savings to the public and the resulting benefit to the administration of justice in resolving cases that ought to be resolved is substantial. Although there may be exceptions to that confidentiality or privilege such as obstruction of justice, or other issues, I am of the view that public policy would dictate that there be a confidentiality concerning such negotiations. That privilege applies in the sense that the information disclosed would not be used against that person."

I have also considered the decision of R. v. Delchev, 2015 ONCA 381, R. v. Llacuna, R. v. Nixon, 2011 SCC 34, R. v. Lake, R. v. Larocque, and R. v. Nestle Canada Inc.

[28] I am satisfied that privilege exists at a judicial pretrial and that conversations between Crown and defence should be made without prejudice and should be treated as confidential.

The Content of the Email to Detective Constable McDonald

[29] On a balance of probabilities, I am prepared to find that Mr. Parke came into possession of the information he forwarded to D.C. McDonald from discussions he had with Ms. Cain as to what took place at the judicial pretrial. It is clear from the email sent from Mr. Parke to D.C. McDonald that the confidentiality privilege that is expected at a judicial pretrial was breached. The email set out the defence position, what argument would be put forward, the main thrust of the defence, and what could be expected as a result – cross-examination of the officer on a specific point.

[30] The wording of this email is a clear breach, in my view, of the privilege that should have attached to those pretrial discussions. There is no doubt that Mr. Parke had an obligation to have the defence assertions "investigated" and then disclosed to defence, but it is the manner in which it was presented to the officer that is improper, in my view.

[31] This court finds the tone and the content of this email disturbing. While the following does not form part of the s. 7 Charter breach allegations, I am of the view that comment on it is appropriate.

[32] This is not a "prosecutor's work product" email between colleagues where it is open to share opinions without fear of disclosure. D.C. McDonald was being tendered as an expert witness. The Crown doesn't simply ask him to investigate the possibility that the defendant's motor vehicle was pushed into oncoming traffic or ask him to address an issue missing in his report – the Crown asserts their opinion as to the veracity of such a finding. Mr. Parke then goes on to say that his findings will "surely" have to be disclosed and to "take his time in his review" and that his findings will be the subject of cross-examination.

[33] The tone of the email, in my view, suggests the response the Crown is expecting. It is drafted in an informal manner and the salutation and sign-off suggest a familiarity and collegiality between the Crown and expert witness. Mr. Parke provides an opinion of what the answer should be, that his answer will be disclosed – which should be known without being stated in the fashion is was – and that if the answer is as the Crown anticipates it will be, (that the defence position is unlikely), the officer can be expected to be cross-examined on it.

[34] This is not a neutral email sent to a neutral witness who, as an expert, is expected to be independent, impartial and unbiased. In fact, the last sentence of the email, "feel free to give me a call if you've got any questions before you commit something to writing" cannot be interpreted in any way other than to suggest that the Crown was looking to approve the answer before having to disclose it. This type of correspondence is inappropriate, in my view, and is borderline abuse of process.

[35] Given the content of the email disclosed and the defence position that was confidentially set out during the pretrial of July 27th, to which settlement privilege attaches, I find that there has been a breach of Mr. Thibodeau's s. 7 Charter rights.

Lateness of Disclosure

[36] Mr. Parke was fully aware that he had an obligation to disclose D.C. MacDonald's response to the July 27th email. He sets that out in the content of the email. P.C. MacDonald responded to that email some four weeks later. That response, however, was not disclosed to the defence before the commencement of the trial. In fact, it only came to light that this email and response existed during the early stages of the examination in-chief of D.C. McDonald. Further, the officer goes a step further in his evidence to give an opinion about damage to the passenger side of the defendant's motor vehicle, but this was not disclosed as part of his report.

[37] This evidence is in direct response to the defence position as to how the collision occurred. As such, D.C. McDonald's response, and his further "additional" evidence that should have been included in his report, is clearly relevant and may very well directly impact how the defence prepares and proceeds with its case.

[38] The Crown concedes that this information should have been disclosed prior to trial and has no explanation to provide.

[39] Little more has be said on this issue. It is a clear breach of Mr. Thibodeau's s. 7 Charter rights. The thrust of the defence was altered as a result of this late disclosure and has compromised the defendant's right to make full answer and defence.

Summary

[40] In summary, the court finds that the lack of preservation of the Silverado motor vehicle is a breach of the defendant's s. 7 Charter rights. I am mindful of the court's comments in R. v. Bero, supra, that it would be premature to rule on whether this breach amounts to an abuse of process until the conclusion of the trial when all of the evidence is heard and the court is in a position to consider the impact this destruction of evidence has had on the defence's s. 7 right to make full answer and defence.

[41] I find that the disclosure to the accident reconstructionist of privileged information obtained during the judicial pretrial breached Mr. Thibodeau's s. 7 Charter rights. This amounts to an abuse of process, and it violates the fundamental principles of justice which underly the community's sense of fair play and decency, as set out in R. v. Nixon, supra.

[42] The lack of disclosure of a very relevant piece of information until the trial itself amounts to a breach of the defendant's s. 7 Charter rights. The Crown was well aware that this information needed to be disclosed, but for whatever reason, this information was not forthcoming. The disclosure is of such a nature that it has a direct impact on the presentation of the defence to this charge, as it prejudices the defendant's right to a fair trial, and amounts to an abuse of process.

The Remedy

[43] The defence is requesting a stay of proceedings.

[44] I have reviewed the decisions in R. v. O'Connor, R. v. Rajalingham, and R. v. Nixon, 2011 SCC 34. I am not going to go into these decisions at length, but they have been given great consideration in reaching my decision.

[45] As set out in O'Connor, supra, the court may consider the prejudice to the defendant as well as the prejudice to the justice system when determining an appropriate remedy. These issues may be considered on their own merit and may overlap.

[46] In the case before me, the essential thrust of the defence argument for a stay is the prejudice to the defendant and his right to a fair trial.

[47] I am satisfied that his right to a fair trial has been infringed by the loss of disclosure, the breach of privileged communication and the lack of relevant disclosure. While I cannot weigh at this stage of the proceedings the impact that the loss of the disclosure (the destruction of the motor vehicle) has, or would have had, on his case, or determine whether a stay of proceedings would be warranted, I cannot say that for the remaining two issues. It is clear that the defendant has been denied his right to a fair trial. This cannot be rectified by an adjournment, or exclusion of evidence. He has dealt with this case responsibly, through counsel, and was prepared to argue his defence. The Crown knew what that defence was. Given the "tipping of the hand", so to speak, to the expert witness and the revelation of new disclosure on the day of trial, there is no remedy that can adequately address these breaches short of a stay of proceedings.

[48] I do not need to go further to address the impact that this conduct would have on the integrity of the justice system should this matter not be stayed.

[49] The charge is stayed.

Released: June 24, 2019

Signed: Justice of the Peace T. Allison Forestall