Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 03 09 COURT FILE No.: Toronto, College Park 4817-998-19-75002436-01

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RICHARD JASON BOSWICK

Before: Justice J. W. Bovard Heard on: January 25, 2021 Reasons for Ruling released on: March 9, 2021

Counsel: Ms. A. Nagra........................................................................................ counsel for the Crown Mr. R. Boswick............................................................................................ on his own behalf

Bovard J.:

[1] Mr. Boswick brings a motion for a mistrial. These are the court’s reasons for its ruling.

Introduction

[2] Mr. Boswick is charged with threatening to cause bodily harm to the complainant between the 26th and 31st of March 2019. He has represented himself though out all the proceedings.

[3] The trial, including final submissions, lasted four days. I reserved judgment to September 25, 2020.

[4] Unbeknownst to me, while I was writing my judgment, Mr. Boswick sent an email to the Crown, Ms. Nagra. After reading the email, Ms. Nagra realized that Mr. Boswick conducted the trial without being given the opportunity to view the complainant’s videotaped statement to the police.

[5] Ms. Nagra advised my assistant of the situation immediately. I instructed my assistant to advise the parties that I would suspend writing my judgment to attend to this matter. I told them that on the date that I scheduled to give judgment, September 25, 2020, rather than give judgment, I would address the disclosure issue with them.

[6] On September 25, 2020, the parties appeared before me and made submissions regarding what should be done. Mr. Boswick asked that I grant a mistrial. He said that he would bring a motion for a mistrial. Although the Crown conceded that it breached Mr. Boswick’s right to disclosure, she opposed his request for a mistrial.

The Application

[1] Mr. Boswick’s written application is confusing because it is mixed in with a request for a waiver of court fees and a request for a bail variation. It is on a form for the Superior Court of Justice, but I do not think that matters.

[2] On page 2 of the notice of application under “The Relief Sought Is”, he states that he wants the court to dismiss the charges because the Crown withheld witnesses and evidence “that would have by the Crown’s Admission would have significantly impacted my defence”. He states further that this was an infringement of his “Constitutional right to a Fair trial”. He also alleges that the Crown tampered with the evidence “by editing”.

[3] In a later portion of the application he states that he seeks an order granting “Dismissal”. His cites his grounds for this request as being that “…as a self represented litigant [he] could not examine Det. Nair regarding previous statements made in evidence used against me”.

[4] Secondly, he states that he was not given an opportunity to “examine the victim video statement and therefore could not give full answer and Defense”.

[5] Thirdly, he states that the Crown withheld disclosure and witnesses.

[6] In support of his application he says that he will rely on “Court Transcripts”.

[7] Although Mr. Boswick asks for a “dismissal” of the charge, this is a motion for a mistrial, not for the dismissal of the charges.

[8] Mr. Boswick is self represented, so I instruct myself to be especially careful to ensure that he knows what the nature of the proceedings is. R. v. Tossounian, 2017 ONCA 609, paras. 32-38

[9] Mr. Boswick decided to bring a motion for a mistrial after he consulted with legal counsel.

THE COURT: I remember the last time we talked on Tuesday, Mr. Boswick, I suggested that it would be helpful for you to consult with (indiscernible) - free legal advice option that the (indiscernible) [Law Society of Upper] Canada gives. Were you able to do that?

MR. BOSWICK: I did, Your Honour. I reached out to five, and I heard back from two, as well as a person who’s licensed as a paralegal, and some (indiscernible). The overwhelming consensus from the lawyers included – well – I’d like to hear Crown Nagra’s opinion on the different options on how we proceed.

THE COURT: Okay. I just wanted to know if you had a chance to speak to a lawyer or not.

MR. BOSWICK: I did. I did. Thank you.

[10] Later in his submissions, Mr. Boswick stated that “the overwhelming consensus of the lawyers and the people that I talked to is that I would like to ask for a mistrial”.

[11] Then I asked:

THE COURT: Okay. So are you saying that you’re bringing a motion – an application for a mistrial?

MR. BOSWICK: Yes, I – I’m talking with one lawyer, he said that he doesn’t believe that I need to file any paperwork, but I will if needed.

[12] And at page 22, lines 1-10, I again clarified with Mr. Boswick:

I just want the record to be clear – and for my mind to be clear on this – Mr. Boswick, my understanding is that after considering all the other sort of little step-by-step options that I mentioned before, based on the legal advice that you’ve received, what you’d prefer to do is to bring the motion for a mistrial. Am I correct in that?

MR. BOSWICK: You are correct.

[13] This advice appears to be in keeping with the Ontario Court of Appeal’s holding in R. v. T. (L.A.) that “Neither an offer to recall witnesses nor an adjournment can cure a substantive breach of the right to receive timely and full disclosure”. R. v. T. (L.A.), [1993] O.J. No. 1605, para. 14

[14] Furthermore, according to his submissions on September 25, 2020, the sole remedy that he seeks is a mistrial despite that in his application under “Relief Sought” he states “I would like the charges dismissed as the Crown withheld witnesses and evidence that would have by the Crown’s Admission would have significantly impacted my defense. Further infringing on my Constitutional right to a Fair trial.”

[15] The Crown indicated in her response that she was treating it like a motion for a mistrial.

[16] Based on all the circumstances, I do not doubt that Mr. Boswick knew that this proceeding was to hear his motion for a mistrial because it was stated many times on September 25, 2020, during the parties’ appearance before me to discuss what to do to resolve this issue.

[17] It was also stated many times at the hearing of the motion. Although at page 42, lines 30-31, Mr. Boswick states that he wants a dismissal of the charge, considering the context and all of the other references cited, it is clear that this was more in line with wishful thinking than with the nature of the motion that he was arguing, which was clearly a motion for a mistrial. In addition, this was the only time that he ever mentioned a dismissal in his appearances on September 25, 2020 and January 25, 2021.

[18] Furthermore, at the beginning of the hearing of argument on the motion, I summarized the proceedings and said, “So, just to summarize a bit, as you know, Mr. Boswick has brought a motion to – for a mistrial and today has been set to hear that motion”.

[19] Therefore, I find that it was clear to Mr. Boswick that I would be entertaining a motion for a mistrial, not one to dismiss the charges. I understand that for Mr. Boswick, being a lay person, it may be difficult to understand the difference. This most likely led to his use of the term dismissal in his application, rather than the correct legal term “mistrial”.

[20] This is understandable. I do not criticize him for this. I merely want to make it clear that it was clear to Mr. Boswick that I am ruling on a motion for a mistrial, not on one to dismiss the charges.

The Issue

[21] The Crown concedes that it breached Mr. Boswick’s right to disclosure. The issue is whether the breach prevented Mr. Boswick from making full answer and defence and/or compromised the overall fairness of the trial such that the court should grant a mistrial.

The evidence

[22] The parties did not call any sworn evidence. They relied on the application, the Crown’s response, the transcript of a JPT held in court, and on the notes of a different judge who conducted a second JPT over the telephone.

[23] To help him prepare for the motion, the Crown arranged for Mr. Boswick to watch the complainant’s videotaped statement, which he did.

Judicial Pre-Trial on the record in court on October 11, 2019

[24] On October 11, 2019, a judge conducted a judicial pre-trial on the record in court with Mr. Boswick and his co-accused at the time, Mr. Cory Scott, and a different Crown than the trial Crown. During this JPT there was no mention of the complainant’s videotaped statement to the police.

[25] The transcript of the JPT shows that during the JPT the parties and the court discussed a variety of issues including possible resolution, disclosure, and a time estimate for a trial. On several occasions they referred to a 90-minute video that Mr. Boswick made with two of his friends. What he said during a 2.5-minute portion of this video is the foundation for the charge of threatening against him.

[26] On page 8, lines 30-33, the judge asked Mr. Boswick whether there was “disclosure that’s missing”. Mr. Boswick said “No, I believe that we’ve got – we’ve gotten all disclosure …”

[27] On page 9, lines 8-13, Mr. Boswick said that “… we received initial, and then we received further but – I’m sure that’s it”. The court said “Okay. You think you have everything”. The court asked the Crown whether” as far as you know, disclosure is complete”? The Crown replied, “That’s correct”.

[28] On page 29, lines 20-22, the JPT is wrapping up. The parties are trying to determine how long the trial will take. The judge says, “Crown’s calling [the complainant] and possibly one officer who received the video”. The judge was talking about the 90-minute video to which I referred above (see lines 29-30 of the transcript).

The second JPT, July 28, 2020

[29] After the parties set trial dates for August 4 and 5, 2020, they appeared in trial readiness court on July 27, 2020, to confirm that they were ready to proceed to trial. Mr. Boswick told the court that he was missing some disclosure. There was no mention of what the missing disclosure was.

[30] The trial readiness court judge, who was different from the JPT judge, acted quickly and set a second JPT before her for July 28, 2020 to discuss the disclosure issue.

[31] On July 28, 2020, Ms. Nagra, the trial Crown, conducted the JPT for the Crown. Mr. Boswick appeared on his own behalf. The JPT was conducted over the phone, so there is no transcript. But the judge filled out a JPT form.

[32] At the beginning of the form, under the disclosure portion, the judge noted that at the first JPT, “it was indicated that the disclosure was complete and parties agree”. The judge also noted that the Crown said that they disclosed only part of the 90-minute video to Mr. Boswick, but he agreed that he was familiar with the video.

[33] Under the heading “Length of videos/audiotapes to be played for all witnesses in total:”, the judge noted “video statement for the complainant 30 minutes”. It also indicates that there was no transcript of “Witness Statement” and that none “will be available for the hearing”.

[34] Under the heading “Admissions”, in the box “Video(s)/Audiotapes(s)” the judge marked “Yes”. It is not clear from this box whether this refers the 90-minute video tape or the “video statement for the complainant 30 minutes” referred to above. There are no audio tapes.

[35] However, in the same “Admissions” box, under “Other”, the judge noted “Agrees his identity and that the video was online, but access was limited ” (my emphasis). I infer from this and from the comments made regarding the 90-minute video during the first JPT, that this refers to the 90-minute video, not to the complainant’s videotaped statement.

[36] I find support for this inference from the transcript of the first JPT. On page 9, the parties are discussing the 90-minute video. At lines 26-30, Mr. Boswick tells the judge that he does not dispute that the video was online and that “It was taken off – it was removed the morning after ” (my emphasis).

[37] Therefore, when the judge’s notes in the second JPT state “but access was limited” it must be referring to the 90-minute video. There is no evidence that the video of the complainant’s statement was ever online, or that it lasted 90 minutes.

[38] Further support for my inference is on page 10, lines 1-10 of the transcript of the first JPT, where the Crown states that she is calling the complainant as a witness and playing the entire 90-minute video.

[39] Under the “Second Event” portion of the form, the judge noted that both sides called in for the second JPT and confirmed that disclosure was complete and both sides were ready for trial.

[40] As indicated above, the notes from the second JPT refer to the complainant’s videotaped statement. Therefore, both parties knew that it existed. It is clear that Mr. Boswick had access to the 90-minute video and that he knew what was on it, especially since he made it. But there is no mention of the Crown arranging for Mr. Boswick to see the complainant’s video statement.

[41] Those are the facts for the motion for mistrial.

Mr. Boswick’s submissions on the motion

[42] On January 25, 2021, the parties appeared before me to argue the motion for mistrial.

[43] Mr. Boswick stated several things to support his motion. I will deal with them in the order that he presented them.

[44] Mr. Boswick started his submissions by trying to make disclosure of the 90-minute video an additional ground for his motion for a mistrial. He stated that the Crown did not give him the full 90-minute video in which he made the alleged threating utterance. But the mistrial concerns whether him not having had access to the complainant's videotaped statement prevented him from making full answer and defence and/or resulted in an unfair trial. It does not deal with the 90-minute video.

[45] Mr. Boswick did not ask for an amendment to his application to include the 90-minute video. Neither did he give the Crown or the court notice that he was going to present this argument. Disclosure of the 90-minute video has never been the issue for the mistrial. The issue is disclosure to Mr. Boswick of the complainant's videotaped statement to the police. However, since Mr. Boswick is representing himself, I will be indulgent regarding this issue and I will consider it.

[46] Mr. Boswick told the JPT judges that he had full disclosure, which included the 90-minute video. But as it turned out, he did not have it. When this became apparent on the first day of trial the Crown submitted that she was only relying on a 2.5-minute portion of the video where he makes the alleged threat. He had that portion of the video.

[47] Mr. Boswick said that he wanted to adduce the whole video because it provided important context for the 2.5-minute portion. The Crown had not looked at it, nor did she have it. I directed her to obtain the 90-minute video and disclose it to Mr. Boswick so that he could make use of it as he saw fit. By the second day of trial, August 5, 2020, the Crown had obtained the 90-minute video.

[48] Mr. Boswick wanted to play the entire video in court. The Crown stated that there was personal information on the video regarding other individuals that would have to be redacted before she could give it to Mr. Boswick.

[49] After hearing from both parties, I decided that it would not be appropriate to play an unredacted copy of the video in court. The Crown said that she would redact it and send it to Mr. Boswick as soon as possible. Soon afterwards, she redacted it and disclosed it to Mr. Boswick, and he examined it over a weekend.

[50] Mr. Boswick has always had full disclosure of the 2.5-minute portion of the 90-minute video on which the Crown relies to prove the charge. Although he said at the JPT on July 28, 2020, that he was content to proceed without the full 90-minute video, he said that he wanted to look at it because it would provide context for the 2.5-minute portion.

[51] I asked him of what use the 90-minute video was to him.

THE COURT: Mr. Boswick, what is the purpose of the video for you? How did you want to use it?

MR. BOSWICK: I thought that it would bring a greater context into the night in question, the incidents surrounding and the reasons why we did that video, the mental state that we were in, because really two minutes of, you know, drunken rants doesn’t really give you a good sentiment of where people are coming from, what they’re trying to convey in a 90-minute message. And if – as my defence will explain, all today, that it was – it was drunken people that made a mistake, that did a video two days after they were traumatized, and they were – and they were making statements of – of self-defence, hypothetically in the future, in a lawless scenario, if things continue the way they are with the escalation in violence, in general.(emphasis added)

[52] I raised with Mr. Boswick that he told the second JPT judge that he agreed to go to trial without having the whole 90-minute video. He said that he made concessions that he should not have made, but he was at a disadvantage because he was representing himself. Here is the exchange between us:

THE COURT: …my understanding was that this was discussed at the judicial pre-trial, and you said that you were agreeing to proceed with the trial without the video. Is that – am I wrong about that?

MR. BOSWICK: I did – I did, but, you know, this is a pressure situation, and I – I mean if we want to get into, you know, mental state, I can get into my health issues, and well-documented diagnoses of things because of this process, you know. So yes, I’m new to this and I make mistakes, and I make concessions that I shouldn’t.

[53] The trial continued August 10, 2020. On that day Mr. Boswick said that he had the 90-minute video:

Now, I did get the 90-minute video. I had a chance to initially look over it, and do whatever work I could over the weekend, but – ideally I would like more time, but I think I’m (indiscernible) because of the nature of what’s said, it is exculpatory, I believe, and you know it does put a different point of view on what was said – and – so – so first off, I take issue with the fact that I cross-examined and the Crown interviewed Metcalf based on two minutes and not 90 minutes.

[54] Mr. Boswick asked that the complainant be recalled so that he could cross-examine him again after having seen the whole 90-minute video. I refused his request. The following is the exchange between us:

MR. BOSWICK: Okay. Okay. I just – I figured that the line of questioning that both the Crown and I would have on Mr. Metcalf would be, you know, more in line with the 90-minute video...

THE COURT: Okay. Well that part of the proceedings is over, he’s already testified...

MR. BOSWICK: So I can’t recall him?

THE COURT: It would be very unusual – you know, I can’t say, Mr. Boswick - because you agreed to proceed without looking at the 90-minute video...

MR. BOSWICK: Okay. Well, I mean - you’re the judge.

THE COURT: It would be very unusual, after a witness has been examined and cross-examined and re-examined, to have them recalled to testify with regard to what is on a video that you said that you were okay to go ahead without looking at. So, I’d have to say no, so you can’t recall Mr. Metcalf.

[55] As seen above in the quotation where I asked Mr. Boswick what the purpose of the 90-minute video was for him and how he wanted to use it, he said that it provided exculpatory context for the 2.5-minute portion on which the Crown relies to support the charge against him. He did not tell the court that it was for the purpose of cross-examining the complainant. He never explained what it was about the other 87.5 minutes of the 90-minute video that required that the complainant be recalled for him to cross-examine him again. He just made a general statement that he would like to have seen the rest of the 90-minute video before cross-examining the complainant without giving a reason why.

[56] Therefore, even allowing the 90-minute video to be an additional ground for his motion for a mistrial, I find that Mr. Boswick has not established on a balance of probabilities that not having had the 90-minute video before he cross-examined the complainant or for the whole trial, prevented him from making full answer and defence or rendered the trial unfair to him in any other manner.

[57] Just stating that it would provide exculpatory context, without showing how it is connected to the complainant is not a sufficient reason to re-open the case and re-call the complainant for further cross-examination.

[58] Next, Mr. Boswick submitted that after looking at the complainant's videotaped statement he thinks that Det. Nair changed and manipulated the complainant’s testimony. He said that Det. Nair limited the complainant's videotaped statement “to an individual and not a group”. I presume that he is arguing that Det. Nair steered the complainant to make him say that the alleged threatening utterance was aimed at him and not at a group to which the complaint belonged. However, Mr. Boswick did not give any examples of Det. Nair doing this.

[59] I watched the complainant's videotaped statement and I do not agree with Mr. Boswick. Det. Nair conducted a fair and balanced interview. He did not change or manipulate the complainant’s statement.

[60] Mr. Boswick’s next point was that “the testimony was changed between the police report and the statement”. This refers to how the complainant became aware of the 90-video. Mr. Boswick says that in his statement the complainant said that others saw it on the internet and then told him about it. He submits that “the police statement is altered” to say that [the complainant] himself found the video on the internet.

[61] I find that this is of no moment and does not tend to support Mr. Boswick’s motion. How the complainant became aware of the 90-minute video does not impact his ability to make full answer and defence or the overall fairness of the trial in any relevant way because it does not matter how the complainant became aware of it.

[62] The police occurrence report was not produced to the court. However, even if the report was mistaken about how or where the complainant found out about the statement, it is not evidence and Mr. Boswick did not show how it affects the fairness of the trial or his ability to make full answer and defence. I find that it does not.

[63] Furthermore, in his videotaped statement to the police the complainant said both that others told him about the 90-minute video and that he found it on social media himself. Therefore, this argument does not have any merit.

[64] Mr. Boswick’s next point was that in “the police statement” it says that the complainant found the video on an internet platform called “Facts versus Feelings”. But in the complainant's videotaped statement he says that it was on a platform called “Facts before Feelings”. I find that this is not an important distinction. Nor is it relevant to Mr. Boswick’s ability to make full answer and defence or to the overall fairness of the trial.

[65] Mr. Boswick’s next argued that “by the Crown’s own admission … more likely than not – based on seeing this video [the complainant’s video statement] …” he would want to call as a witness a lawyer that acted for the complainant in a defamation suit. Apparently, Mr. Boswick and the complainant saw each other at the courthouse after he made the alleged threat. Mr. Boswick said he “did what I said I was going to do in the video, which was film him, peacefully”.

[66] The Crown addressed this submission saying:

MS. NAGRA: Yes, Your Honour. I guess I’ll start – I’ll start by making my comments regarding what Mr. Boswick said earlier this afternoon, that he hinted towards or stated on the record that there was – that the Crown – there was an admission by the Crown that this drastically affected his full answer and defence.

I want to be clear on the record, Your Honour and Your Honour will recall, having reviewed the – the transcript from September 25th, 2020, as soon as the Crown became aware of the situation I alerted – I alerted the Court and the Crown position has always been that this may give rise to a mistrial and to pause the proceedings at this stage and to explore this issue and if Mr. Boswick wishes to bring an application for a mistrial then he should be allowed and the Crown will respond. So, I just want to – on the outside, just put that on the record so it’s very clear; there was no admission by the Crown that – as such as Mr. Boswick put it. (emphasis added)

[67] Mr. Boswick said that the purpose of calling the lawyer was “to determine exactly where and when the video was downloaded off – uploaded or downloaded off of line”. This is not germane to the issues that I have to decide and I fail to see how it would help Mr. Boswick in his defence or affect the overall fairness of the trial. The downloading of the 90-minute video does not matter. It is what Mr. Boswick said on the video that is the issue in the case.

[68] He also complained that whoever downloaded the video tampered with it by selecting the 2.5-minute portion of it, which the Crown is using to prosecute him. I do not find that this submission has any merit. As I told him in court, selecting the 2.5-minute portion is not “tampering” with the video. In any case, the Crown decided to use the 2.5-minute portion, not the complainant’s lawyer or anyone else.

[69] Mr. Boswick said that in addition to the lawyer, he would want to call some of the persons that told the complainant about the 90-minute video being online and who were helping the complainant to gather evidence against him. Mr. Boswick said, “it seems like it’s not an individual versus an individual; it seems like he has a lot of support network and associates”. Mr. Boswick did not explain how this evidence could reasonably have been helpful to his defence or how it would affect the overall fairness of the trial.

[70] Mr. Boswick’s next argument was that the complainant’s testimony was different from what he said in his statement to the police. Mr. Boswick’s submissions on this point were rambling and difficult to understand. To a large degree, he was picking out certain parts of the complainant's videotaped statement and making arguments against what he said, not showing any contradictions with his testimony.

[71] After reviewing the complainant’s evidence and his videotaped statement, I do not find any significant differences for the purpose of my determining whether Mr. Boswick threatened the complainant. Nor did Mr. Boswick show me any. Therefore, I cannot give this argument any weight. And in any case, the inculpatory evidence against Mr. Boswick is what he said in the 2.5-minute portion of the 90-minute video. Mr. Boswick failed to show that what the complainant said in his videotaped statement affects this in anyway.

[72] Mr. Boswick submitted that despite agreeing in his first JPT that he had full disclosure, he did not have full disclosure. When I pointed out to him that the judge noted that he said that that he had full disclosure, he responded that “Well, the judge can put whatever words in my – in my mouth that she wants …”. He did not have full disclosure.

[73] I find that this is a very unfair characterization of what the in-court JPT judge told him. A close reading of the transcript indicates that the judge did not put words in his mouth. The judge just asked him if there was any disclosure missing. Mr. Boswick said that he had all the disclosure.

[74] He argued that he meant that he had “everything from the Crown, what the Crown is going to provide”. I pointed out to him that he did not say anything about not having the 90-minute video. His response was difficult to understand. It is best that I quote from the transcript of his submissions on the motion.

THE COURT: So, you are agreeing there [in the in-court JPT] that you have all of the disclosure. You make no objection about not having anything. You make no objection about now (sic) having the 90 minute video or the other video, so ....

THE ACCUSED: I don’t make an objection, Your Honour. I don’t make an objection about the 90 minute video, because the Crown was going to use it in their prosecution for trial.

THE COURT: I do not understand what that means.

THE ACCUSED: Well, Ms. Armstrong, when she’s scheduling – when she’s talking about scheduling how long the court is going to proceed and they determine two days, I believe. The trial judge to determine. Anyway, and then, the Crown says part of their – part of their prosecution, I guess - the prosecution against me was going to include the 90 minute video. So, I just wonder how they were going to do that when it wasn’t presented to me until day three and it was never presented by the Crown.

[75] Mr. Boswick submitted that he told the judge that he had full disclosure,

based on what somebody hands you. Somebody hands you and says, we have this for you. Meanwhile, they have a ton of other stuff that they don’t want to submit or that they don’t want to use. I mean, like I said, it seems like – it seems like truth versus expedience, expedience wins in – in – at least in my case.

[76] Mr. Boswick also submitted that the Crown and the police tampered with the evidence. It is not clear what he means by this. I could be that they selected just 2.5 minutes of the 90-minute video to use in the prosecution. If it does, it is not tampering with evidence.

[77] He also argued that the fact that the Crown gave me a copy of the complainant's videotaped statement and of the 90-minute video was a double standard because the Crown did not give it to him.

[78] He has the 90-minute video so that is not a viable argument.

[79] The reason that he does not have the complainant’s videotaped statement is because it is Crown policy not to give complainants’ statements to self represented persons. The reason is that they are not bound, as lawyers are, by professional rules of conduct and it is too risky to assume that a self represented person would not misuse the statement, knowingly or unknowingly. There is no inappropriate double standard in this practice. It is to protect complainants and to safeguard the proper administration of justice.

[80] Mr. Boswick also complained that he was not given the chance to examine Det. Nair, the officer who took the complainant's videotaped statement. This has nothing to do with whether he had seen the statement. He could have called him as a witness had he wanted to, but he did not.

The position of the Crown

[81] The Crown admits that it breached Mr. Boswick’s right to disclosure by not arranging access for Mr. Boswick to the complainant's videotaped statement. The Crown “…. recognizes that we have obligations and that – part of that obligation is to tell Mr. Boswick how to legally access the disclosure ….”

[82] However, the Crown contests Mr. Boswick’s claim that this breach gives rise to a mistrial. She relies on R. v. Dixon, [1998] 1 S.C.R. 244 and R. v. Tossounian, 2017 ONCA 609 to support her position.

[83] The Crown submits that the issue in the trial is whether Mr. Boswick’s words on the 2.5-minute portion of the 90-minute videotape constitute a threat to the complainant. The Crown’s failure to disclose must be looked at in this light. In this sense it does not matter what the complainant said in his statement to the police because the evidence against Mr. Boswick is what he said on the 2.5-minute clip of the 90-minute video, not anything that the complainant said in his statement to the police.

[84] Furthermore, this is not a case where the Crown relies on the complainant’s evidence to make out the charge. Therefore, what the complainant said his videotaped statement to the police does not affect the evidence against Mr. Boswick on which the Crown relies to prosecute him. Therefore, the non-disclosure does not affect the outcome or fairness of the trial.

[85] The Crown asserts that “Mr. Boswick …. has not articulated how it directly impacted his full answer and defence, and how that full answer and defence is impaired because he did not receive this video statement”.

The Law

The duty to disclose

[86] Although the Crown conceded that it breached Mr. Boswick’s right to disclosure, it will be helpful to review briefly what this duty is and the reasons for it.

[87] In R. v. Dixon, [1998] 1 S.C.R. 244, para. 20, the court reiterated the test for disclosure that it set down in R. v. Stinchcombe, [1991] 3 S.C.R. 326:

…. the Crown has an obligation to disclose all relevant material in its possession, so long as the material is not privileged. Material is relevant if it could reasonably be used by the defence in meeting the case for the Crown. Relevance was described in R. v. Egger, [1993] 2 S.C.R. 451, at p. 467, in this way: One measure of the relevance of information in the Crown's hands it (sic) its usefulness to the defence: if it is of some use, it is relevant and should be disclosed -- Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.

[88] In paragraph 21, the court held that “The Crown's duty to disclose is …. triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence. See R. v. Chaplin, [1995] 1 S.C.R. 727, at p. 742”. This is quite a low standard.

[89] Dixon stressed that the defence must exercise due “diligence in pursuing disclosure from the Crown …. A lack of due diligence is a significant factor in determining whether the Crown's non-disclosure affected the fairness of the trial process”. (Dixon, supra, at para. 37)

[90] In the case at bar this factor must be considered in the context that Mr. Boswick is self represented. Consequently, he cannot be taken to have known about the procedures that exist for the Crown to arrange for him to look at the complainant's videotaped statement should he want to see it. Therefore, I do not think it would be correct to fault him for not having raised the issue prior to trial. I think that the Crown considered this in deciding to concede that it breached his right to disclosure of the statement.

[91] Dixon held that the accused has the burden “of demonstrating on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose” (Dixon, supra, at para. 33).

[92] In paragraph 34, the court held that “This burden is discharged where an accused demonstrates that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process”. (Dixon, supra, at para. 34)

[93] Dixon was decided in the context of a Charter application pursuant to ss. 7, 24(1) for lack of disclosure, but it is reasonable that these holdings regarding the onus on the accused would apply to an application for a mistrial where there is no Charter application as in the case at bar.

[94] Dixon held that “where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has also established the impairment of his Charter right to disclosure” (Dixon, supra, at para. 22).

[95] They cautioned, however, that the mere finding that the Crown breached its duty to disclose does not automatically mean that a new trial should be ordered. In paragraph 23, the court stated:

…. the initial test which must be met in order to establish a breach of the right to disclosure is analytically distinct from the burden to be discharged to merit the remedy of a new trial. The right to disclosure of all relevant material has a broad scope and includes material which may have only marginal value to the ultimate issues at trial. It follows that the Crown may fail to disclose information which meets the Stinchcombe threshold, but which could not possibly affect the reliability of the result reached or the overall fairness of the trial process. In those circumstances there would be no basis for granting the remedy of a new trial under s. 24(1) of the Charter, since no harm has been suffered by the accused.

[96] Even if an accused’s disclosure rights are breached, the court may still deny the remedy of a new trial “if it is found that the trial process was fundamentally fair and that there was no reasonable possibility the result at trial might have been different had the undisclosed material been produced”. (Dixon, supra, at para. 24)

[97] This is because “The right to full disclosure is just one component of the right to make full answer and defence. It does not automatically follow that solely because the right to disclosure was violated, the Charter right to make full answer and defence was impaired”. (Dixon, supra, at para. 24)

[98] A further indication that a breach of an accused’s right to disclosure does not automatically result in a new trial is the court’s finding that “the appropriate remedy will depend on the extent to which the right was impaired”. (Dixon, supra, at para. 31)

[99] The Supreme Court made these findings in the context of a Charter application. In the case at bar there is no Charter application, and the court has not yet rendered its judgment. But I find that their findings regarding when lack of disclosure justifies a new trial provide authoritative guidance for my consideration of Mr. Boswick’s motion for a mistrial.

[100] The court said that this burden is discharged “where an accused demonstrates that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process”. (Dixon, supra, at para. 34)

[101] The court stated further that:

…. the reasonable possibility to be shown under this test must not be entirely speculative. It must be based on reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure. If this possibility is shown to exist, then the right to make full answer and defence was impaired (para. 34).

[102] In paragraph 35, the court held that “where the remedy sought is a new trial, an accused need only persuade the appellate court of the reasonable possibility that the failure to disclose affected either the outcome at trial or the overall fairness of the trial process, and nothing more”.

[103] Although the case at bar is still in the trial stage, it is reasonable to apply the same logic to Mr. Boswick’s motion for a mistrial with appropriate modifications such as, whether the failure to disclose could affect either the outcome at trial or the overall fairness of the trial process.

[104] If the undisclosed information could affect the reliability of a conviction, a new trial should be ordered. (Dixon, supra, at para. 36)

[105] But even if the undisclosed information “does not itself affect the reliability of the result at trial, the effect of the non-disclosure on the overall fairness of the trial process must be considered at the second stage of analysis”. (Dixon, supra, at para. 36)

[106] Dixon held that the court determines this “by assessing, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if the relevant information had been disclosed”. (Dixon, supra, at para. 36)

[107] In R. v. Taillefer, [2003] 3 S.C.R. 307, 2003 SCC 70, the Supreme Court of Canada dealt with a case in which “ oral and written statements of various witnesses gathered by the police during their investigation, investigation notes taken by police officers in the course of questioning the accused, and the information sworn by a police officer for the purpose of obtaining a search warrant” were not disclosed to the accused”.

[108] The nature of this evidence was such that the court found that “ A considerable part of it could have been used to impeach the credibility of certain prosecution witnesses. Other evidence raised serious doubts as to the credibility of the theory put forward by the Crown. Finally, the defence could have used some of that evidence to explore or discover new avenues of investigation”. (Taillefer, supra, at para. 29)

[109] In Taillefer, the Crown failed to disclose statements of numerous witnesses that contradicted the evidence of Crown witnesses; that were inconsistent or contradictory with particular witnesses’ own statements; statements from witnesses that contradicted the Crown’s theories of the case, and many other items of disclosure that were clearly of relevance for the defence. (Taillefer, supra, at paras. 30-38)

[110] At para. 103, the court found that:

The mere reasonable possibility that the discrepancies between the notes of the coordinators Cossette and Pelletier and the testimony of the officers Charette and Leduc could be used to impeach the officers' credibility, or to raise a doubt as to whether the accused's statement was voluntary, is all that is needed for it to be possible to hold [page356] that there was a reasonable possibility that the failure to disclose impaired the overall fairness of the trial.

[111] The proper test on an application for a mistrial is “…. whether the appellant's ability to make full answer and defence has been impaired. Did the failure to disclose create such prejudice that it cannot be said with certainty that the appellant received a fair trial?” (R. v. T. (L.A.), supra, at para. 8)

Disposition

[112] For the reasons stated above, I find that Mr. Boswick did not discharge the onus upon him to show that there is a reasonable possibility that failing to disclose the complainant's videotaped statement would impact the outcome of the trial, or that there is “ a reasonable possibility that the failure to disclose impaired the overall fairness of the trial”. Therefore, I dismiss his motion.

[113] Mr. Boswick did not bring a Charter application. He indicated clearly to the court that after receiving the advice of “lawyers” he decided to bring a motion for a mistrial. It is reasonable to conclude that the lawyers knew about the availability of a Charter application in these circumstances. It is his right to just bring a motion for a mistrial and I govern myself accordingly.

[114] In any case, whether it is a Charter motion or just an application for a mistrial, it appears from the jurisprudence cited above that the same tests would be applied in considering the impact of and the remedies for the Crown’s breach of Mr. Boswick’s right to disclosure of the complainant's videotaped statement.

Procedural matters

[115] The transcript used by the parties, the JPT notes, the application and the Crown’s response will be made exhibits. The transcript of the October 11, 2019 JPT is exhibit one, the JPT notes are exhibit two, the application is exhibit 3, and the Crown’s response is exhibit 4.

[116] I will now complete my judgment on the trial.

[117] When I informed the parties of my disposition of the motion for a mistrial orally on March 5, 2021, I adjourned the case to March 19, 2021, 9AM in 503 court for judgment on the trial. I told the parties that in the meantime I would send them a copy of my written reasons for my disposition of the motion for a mistrial by March 9, 2021.

Released: March 9, 2021

Justice J. W. Bovard