SUPREME COURT OF CANADA

Citation: R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651

Date: 20090730

Docket: 32446

Between:

Jason Chester Bjelland

Appellant

and

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

Reasons for Judgment: (paras. 1 to 40)

Dissenting Reasons: (paras. 41 to 70)

Rothstein J. (McLachlin C.J. and LeBel and Deschamps JJ. concurring)

Fish J. (Binnie and Abella JJ. concurring)

R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651

Jason Chester Bjelland Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Bjelland

Neutral citation: 2009 SCC 38.

File No.: 32446.

2008: November 20; 2009: July 30.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

on appeal from the court of appeal for alberta

Constitutional law — Charter of Rights — Remedy — Crown disclosing relevant information to accused a few weeks prior to trial — Late disclosure prejudicial to accused’s right to make full answer and defence — Whether trial judge erred in excluding late disclosed evidence under s. 24(1) of Canadian Charter of Rights and Freedoms — Whether prejudice to accused could have been cured by adjournment and disclosure order.

Constitutional law — Charter of Rights — Fundamental justice — Right to make full answer and defence — Crown disclosing relevant information to accused a few weeks prior to trial — Whether accused’s rights to fair trial and to make full answer and defence prejudiced by denial of opportunity to cross‑examine witnesses at preliminary hearing — Canadian Charter of Rights and Freedoms, s. 7.

The accused was charged with importing cocaine and possession of cocaine for the purpose of trafficking. After pre‑preliminary hearing conferences, the Crown indicated that disclosure was substantially complete. A preliminary hearing was subsequently held and a trial date set for May 1, 2006. In March and April 2006, the Crown provided the accused with evidence from two alleged accomplices, both of whom were to be called at trial. The accused moved for a stay of proceedings or, alternately, for the exclusion of the evidence on the grounds that his right to make full answer and defence had been prejudiced by the late disclosure. The trial judge ordered the exclusion of the late disclosed evidence under s. 24(1) of the Canadian Charter of Rights and Freedoms. At trial, the accused was acquitted. The Court of Appeal, in a majority decision, set aside the acquittal and ordered a new trial, finding that the trial judge committed a reviewable error by failing to consider whether a less severe remedy than exclusion of evidence could have cured the prejudice to the accused.

Held (Binnie, Fish and Abella JJ. dissenting): The appeal should be dismissed.

Per McLachlin C.J. and LeBel, Deschamps and Rothstein JJ.: Exclusion of evidence obtained in conformity with the Charter is only available as a remedy under s. 24(1) of the Charter where (a) late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (b) exclusion is necessary to maintain the integrity of the justice system. The integrity of the justice system requires that the accused receive a trial that is fair in that it satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. Because the exclusion of evidence impacts on trial fairness from society’s perspective, insofar as it impairs the truth‑seeking function of trials, it will not be appropriate and just to exclude evidence under s. 24(1) where a trial judge can fashion an appropriate remedy for late disclosure that does not deny procedural fairness to the accused and where admission of the evidence does not otherwise compromise the integrity of the justice system. [3] [22] [24]

The trial judge committed a reviewable error by failing to consider whether the prejudice to the accused’s right to a fair trial could be remedied without excluding the evidence. The Crown provided the accused with disclosure, albeit late, and there is no suggestion that the Crown had engaged in deliberate misconduct. In the circumstances of this case, an adjournment and a disclosure order would have sufficiently addressed the prejudice to the accused while preserving society’s interest in a fair trial. By ordering the exclusion of the evidence, the trial judge misdirected himself and did not impose an appropriate and just remedy. [3] [29] [37] [39]

The accused’s s. 7 Charter right to make full answer and defence was not infringed by his inability to cross‑examine the potential Crown witnesses at a preliminary hearing. The material provided to the accused was sufficient disclosure of the Crown’s case against him, and cross‑examining a witness at a preliminary hearing is not a component of the s. 7 right to make full answer and defence. [32] [37]

Per Binnie, Fish and Abella JJ. (dissenting): The trial judge’s order excluding evidence is subject to appellate interference only if the Court abandons the governing principles it adopted nearly a quarter‑century ago and, since then, has repeatedly and consistently applied. Under s. 24(1), the Charter entitles anyone whose rights or freedoms have been infringed “to obtain such remedy as the court considers appropriate and just in the circumstances”. This “widest possible discretion”, as the Court has framed it, is subject to appellate interference only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice. Here, the Court of Appeal should not have interfered with the trial judge’s exercise of discretion. He reviewed the evidence carefully and accurately, considered and rejected alternative remedies, including a stay of proceedings and an adjournment. He found that exclusion of the tardily disclosed evidence was not a particularly drastic remedy in this case and, balancing the accused’s rights and society’s interests, concluded that to place both the accused and the Crown in the position they occupied before the Crown attempted to introduce this new evidence was the proper remedy in the circumstances. The trial judge committed no reviewable error. He exercised his discretion reasonably and well within the broad limits fixed by the Charter and the governing principles. [41] [48] [56] [66‑68]

Confining the trial judge’s broad and unfettered discretion to exclude evidence under s. 24(1) to two narrow circumstances is a change in the law that is unwarranted, inconsistent with prior decisions of the Court and incompatible with the plain language and evident purpose of s. 24(1). Furthermore, the new proposed limitation introduces the same exacting standard for exclusion of evidence as a remedy under s. 24(1) as, until now, has been uniquely reserved for a stay of proceedings. The remedy of exclusion granted by the trial judge was not equivalent to a stay of proceedings and should not be made subject to the same constraints. To restrict exclusion as a remedy under s. 24(1) to those limited circumstances in which a stay would be warranted exaggerates the severity of exclusion as a remedy and minimizes the importance attached by our system of justice to objectives other than truth‑finding. The new standard also fails to take account of the nature of the constitutional violation or infringement. Finally, it regulates the exclusion under s. 24(1) more closely, and more intrusively, than the same remedy under s. 24(2) even though the plain language of these provisions grants the trial judge a broader discretion under s. 24(1). The new standard, as well, would preclude trial courts from granting exclusion as a remedy under s. 24(1), but, in analogous circumstances, require exclusion under s. 24(2). [43‑47] [64‑65]

Cases Cited

By Rothstein J.

Referred to: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562; Re Regina and Arviv (1985), 1985 CanLII 161 (ON CA), 51 O.R. (2d) 551; R. v. Sterling (1993), 1993 CanLII 6775 (SK CA), 113 Sask. R. 81.

By Fish J. (dissenting)

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; Friends of the Oldman River Society v. Canada (Ministry of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3; Charles Osenton and Co. v. Johnston, [1942] A.C. 130; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562; R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; Pearse v. Pearse (1846), 1 De G. & Sm. 12, 63 E.R. 950.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 24(1), (2).

Controlled Drugs and Substances Act, S.C. 1996, c. 19.

Authors Cited

Freedman, Samuel. “Admissions and Confessions”, in Roger E. Salhany and Robert J. Carter, eds., Studies in Canadian Criminal Evidence. Toronto: Butterworths, 1972, 95.

APPEAL from a judgment of the Alberta Court of Appeal (Hunt and Martin JJ.A. and Brooker J. (ad hoc)), 2007 ABCA 425, 83 Alta. L.R. (4th) 4, 53 C.R. (6th) 241, 425 A.R. 293, 418 W.A.C. 293, 165 C.R.R. (2d) 92, [2008] 4 W.W.R. 208, 2007 CarswellAlta 1754, [2007] A.J. No. 1445 (QL), setting aside the accused’s acquittal and ordering a new trial. Appeal dismissed, Binnie, Fish and Abella JJ. dissenting.

C. John Hooker, for the appellant.

Croft Michaelson and Robert A. Sigurdson, for the respondent.

The judgment of McLachlin C.J. and LeBel, Deschamps and Rothstein JJ. was delivered by

Rothstein J. —

1. Introduction

[1] By reason of the Crown’s failure to disclose information in a timely way, the Crown breached the appellant’s right to make full answer and defence guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. The issue in this appeal as of right is whether the trial judge misdirected himself by ordering the exclusion of the late disclosed evidence as a remedy under s. 24(1) of the Charter.

[2] The majority in the Court of Appeal found that the trial judge committed a reviewable error by failing to consider whether a less severe remedy than exclusion of evidence could cure the prejudice to the appellant by the late disclosure while still preserving the integrity of the justice system (2007 ABCA 425, 83 Alta. L.R. (4th) 4, at para. 30).

[3] I agree with the result of the majority in the Court of Appeal. In my view, the trial judge committed a reviewable error by failing to consider whether the prejudice to the appellant could be remedied without excluding the evidence and the resulting distortion of the truth-seeking function of the criminal trial process. Under s. 24(1), where the evidence was obtained in conformity with the Charter, its exclusion is only available as a remedy where its admission would result in an unfair trial or would otherwise undermine the integrity of the justice system. In this case, the prejudice to the appellant’s right to make full answer and defence could be remedied through an adjournment and disclosure order and there was nothing that otherwise compromised the fairness of the trial process or the integrity of the justice system.

[4] I would therefore dismiss the appeal.

2. Facts

[5] On December 23, 2003, the appellant was driving a motor vehicle which entered Canada from the United States at the border crossing at Del Bonita, Alberta. Upon a search of the vehicle and the utility trailer that it was towing, customs officials discovered approximately 22 kilograms of cocaine hidden in two metal drawers concealed behind the trailer’s bumper. The appellant and his passenger were charged with importing cocaine and possession of cocaine for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[6] After pre-preliminary hearing conferences, the Crown indicated that disclosure was substantially complete. Following the preliminary hearing, the appellant pleaded not guilty and elected trial by judge and jury on February 28, 2005. A trial date was originally set for November 14, 2005, but the trial was adjourned at the request of the appellant because he had changed counsel. On February 14, 2006, a trial date of March 20, 2006, was also adjourned as neither counsel was ready to proceed. A new trial date of May 1, 2006, was set.

[7] On March 21, 2006, the Crown advised the appellant’s counsel that disclosure of evidence concerning an accomplice was to be forthcoming. On March 24, 2006, the appellant re-elected for trial by judge alone. On March 29, 2006, the Crown disclosed a transcript of a videotaped KGB statement, taken on December 16, 2004, from one Robert Friedman, and indicated that Friedman would be called as a witness. On April 6, 2006, counsel for the appellant requested additional information pertaining to Friedman and the notes of the officers who dealt with Friedman, including the notes of Constable Semo and Constable Gillespie. On April 19, 2006, the Crown advised that it was aware of information concerning Constable Gillespie that was potentially relevant to the officer’s credibility, character and ability to perform his duties during his involvement in the investigation of this matter and invited the appellant to bring an O’Connor application for access to this information.

[8] Also on April 19, 2006, the Crown provided the appellant with a five-page agreed statement of facts from another proceeding signed by another alleged accomplice, one Todd Holland, that was to be used in Holland’s guilty plea and sentencing hearing. The Crown advised that it intended to call Holland as a witness at trial. Some further information was disclosed on April 22, 2006.

[9] By notice of motion before the trial judge, the appellant sought an order for a stay of proceedings on the grounds that his right to make full answer and defence had been prejudiced by the late disclosure of the evidence relating to Friedman and Holland. The appellant asked, in the alternative, that the evidence of Friedman and Holland be excluded from the trial.

3. Decision of the Trial Judge

[10] On April 25, 2006, the trial judge ordered the exclusion of the evidence of Friedman and Holland. He held that the prejudice to the appellant resulted from the fact that,

on the eve of trial, counsel for the accused is left to speculate on what will be provided to him by way of final disclosure and how to mount a defence against an ever moving prosecution. . . .

The simple fact is, that on the eve of trial the applicant has been confronted with partial disclosure in relation to two potentially damaging witnesses. . . . A preliminary hearing has been held, the accused has been committed to stand trial, and elections and reelections have been made.

. . . The use of this evidence [of Friedman and Holland] at trial is unfair and prejudicial to the accused. It renders the process unfair.

[11] The trial judge found that the late disclosure of evidence did not result from misconduct by the Crown.

[12] On the issue of the appropriate remedy, the trial judge stated:

An adjournment of the matter is nothing more than a reward for the Crown’s tardiness. . . .

. . . The proper remedy which address [sic] the accused’s rights and balances those rights with the interest of society, is to place both the accused and the Crown in the position they occupied before the Crown attempted to introduce this new evidence.

The trial proceeded and the appellant was acquitted.

4. Decision of the Court of Appeal, 2007 ABCA 425, 83 Alta. L.R. (4th) 4

[13] The majority of the Court of Appeal held that the trial judge “committed a reviewable error . . . by failing to consider whether a less severe remedy than the exclusion of significant evidence could cure the harm done to the respondent by the late disclosure, while still preserving the integrity of the justice system” (para. 30). In this case, exclusion was not required to cure the harm to the appellant. It set aside the acquittal and ordered a new trial.

[14] Brooker J. (ad hoc), in dissent, held that the choice of the appropriate remedy under s. 24(1) of the Charter falls within the wide discretion of the trial judge. Absent the trial judge misdirecting himself or being so clearly wrong in his decision that it amounts to an injustice, there was no basis for appellate intervention in this case. He found that the trial judge considered the evidence and granted a remedy that balanced the rights of the appellant with the interests of society. He would have dismissed the appeal.

5. Standard of Review

[15] The trial judge’s choice of remedy under s. 24(1) of the Charter is discretionary. However, the trial judge must exercise that discretion judicially. An appellate court will intervene where the trial judge has misdirected him or herself or where the trial judge’s decision is so clearly wrong as to amount to an injustice (see R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 117-18).

6. Determining an Appropriate Remedy Under Section 24(1)

[16] This appeal raises the issue of when the exclusion of evidence will be an appropriate remedy under s. 24(1) of the Charter for late disclosure by the Crown.

[17] The remedy of exclusion of evidence will normally arise under s. 24(2) of the Charter. Section 24(2) applies to evidence obtained in a manner that infringes or denies a person the rights or freedoms granted by the Charter. But such evidence will only be excluded if its admission would bring the administration of justice into disrepute. Section 24(2) provides:

24. . . .

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[18] Remedies under s. 24(1) of the Charter are flexible and contextual: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 41, 52 and 54-56. They address the most varied situations. Different considerations may come into play in the search for a proper balance between competing interests. Section 24(1) provides:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[19] Here, we are concerned with aspects of the conduct of a criminal trial and of the operation of the justice system, where the courts have to pass upon the guilt or innocence of an accused. While the exclusion of evidence will normally be a remedy under s. 24(2), it cannot be ruled out as a remedy under s. 24(1). However, such a remedy will only be available in those cases where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system.

[20] Before being entitled to a remedy under s. 24(1), the party seeking such a remedy must establish a breach of his or her Charter rights. In a case of late disclosure, the underlying Charter infringement will normally be to s. 7. Section 7 of the Charter protects the right of the accused to make full answer and defence. In order to make full answer and defence, the Crown must provide the accused with complete and timely disclosure: see R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. The purpose underlying the Crown’s obligation to disclose is explained by Rosenberg J.A. in R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514, at para. 26:

Put simply, disclosure is a means to an end. Full prosecution disclosure is to ensure that the accused receives a fair trial, that the accused has an adequate opportunity to respond to the prosecution case and that in the result the verdict is a reliable one.

[21] However, the Crown’s failure to disclose evidence does not, in and of itself, constitute a violation of s. 7. Rather, an accused must generally show “actual prejudice to [his or her] ability to make full answer and defence” (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 74) in order to be entitled to a remedy under s. 24(1).

[22] While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly. In R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trial fairness. She stated, at para. 45, that:

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. [Emphasis added.]

[23] Apart from ensuring trial fairness, there is one other circumstance in which late disclosed evidence might be excluded. That is where to admit the evidence would compromise the integrity of the justice system.

[24] Thus, a trial judge should only exclude evidence for late disclosure in exceptional cases: (a) where the late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (b) where exclusion is necessary to maintain the integrity of the justice system. Because the exclusion of evidence impacts on trial fairness from society’s perspective insofar as it impairs the truth-seeking function of trials, where a trial judge can fashion an appropriate remedy for late disclosure that does not deny procedural fairness to the accused and where admission of the evidence does not otherwise compromise the integrity of the justice system, it will not be appropriate and just to exclude evidence under s. 24(1).

[25] This view is reflected in cases such as O’Connor that have considered whether a stay is the appropriate remedy for late or insufficient disclosure under s. 24(1). As L’Heureux-Dubé J., for the majority, stated in O’Connor, at para. 83:

In such circumstances [of late or insufficient Crown disclosure and a consequent s. 7 breach], the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Although the remedy for such a violation will typically be a disclosure order and adjournment, there may be some extreme cases where the prejudice to the accused’s ability to make full answer and defence or to the integrity of the justice system is irremediable. In those “clearest of cases”, a stay of proceedings will be appropriate.

[26] This statement recognized that the appropriate focus in most cases of late or insufficient disclosure under s. 24(1) is the remediation of prejudice to the accused, but that safeguarding of the integrity of the justice system will also be a relevant concern. Of course the prejudice complained of must be material and not trivial. For example, the exclusion of evidence may be warranted where the evidence is produced mid-trial after important and irrevocable decisions about the defence have been made by the accused. Even then, it is for the accused to demonstrate how the late disclosed evidence would have affected the decisions that were made. For purposes of trial fairness, only where prejudice cannot be remedied by an adjournment and disclosure order will exclusion of evidence be an appropriate and just remedy.

[27] There may also be instances where an adjournment and disclosure order may not be appropriate because admission of evidence compromises the integrity of the justice system. For example, as Rosenberg J.A. stated in Horan, at para. 31:

In some cases, an adjournment may not be an appropriate or just remedy if the result would be to unreasonably delay the trial of an in‑custody accused. In such a case, an appropriate remedy could be exclusion of the undisclosed evidence. However, the burden is on the accused to demonstrate that exclusion of the evidence was appropriate.

In other words, where an accused is in pre-trial custody, an adjournment that significantly prolongs the custody before trial may be seen as compromising the integrity of the justice system. The exclusion of evidence may also be an appropriate and just remedy where the Crown has withheld evidence through deliberate misconduct amounting to an abuse of process. Yet even in such circumstances, society’s interest in a fair trial that reaches a reliable determination of the accused’s guilt or innocence based on all of the available evidence cannot be ignored. This will especially be true where the underlying offense is a serious one: see O’Connor, at para. 78. In clear cases, however, the exclusion of evidence may be an appropriate and just remedy under s. 24(1) in order to preserve the integrity of the justice system.

7. Application to the Facts

[28] There is no doubt that the late disclosure to the appellant in this case was prejudicial to his right to make full answer and defence. However, there is no suggestion that the police in this case obtained the impugned evidence in breach of the Charter. Section 24(1), and not s. 24(2), was therefore the appropriate remedial provision through which to remedy the prejudice to the appellant.

[29] There was also no finding of deliberate Crown misconduct or any other reason to believe that the integrity of the justice system was compromised. In this case, on the motion before the trial judge, the Crown submitted that the impugned evidence was not disclosed to the appellant earlier because of concerns that to do so would imperil a witness and compromise an ongoing investigation. While the trial judge did not accept that the Crown’s concerns were well-founded in this case, he did not find that the Crown had engaged in deliberate misconduct. Rather, he stated clearly, “I do not suggest the Crown has been unethical or malicious.” There is no suggestion that the appellant was held in pre-trial custody.

[30] The question is, having regard to the interest of society in a fair trial, whether the prejudice to the appellant could have been cured by an adjournment and disclosure order. The trial judge’s concern was that an adjournment would simply be a reward to the Crown for its late disclosure. However, the integrity of the justice system was not at issue. Therefore, the trial judge had only to consider whether an adjournment and disclosure order was an appropriate remedy to cure the actual prejudice to the appellant’s right to a fair trial. This the trial judge did not do.

[31] The appellant argued that his right to a fair trial was prejudiced because he obtained disclosure only after he elected trial by judge alone. As pointed out by the majority in the Court of Appeal however, he knew that disclosure would be forthcoming before he elected and, in any event, the opportunity to re-elect could have formed part of the s. 24(1) remedial order.

[32] The appellant also says that his right to a fair trial was prejudiced because he was denied the right to cross-examine Friedman and Holland at a preliminary hearing. Cross-examining a witness at a preliminary hearing, however, is not a component of the right to make full answer and defence. What is protected under s. 7 is the right to make full answer and defence at trial, not the right to cross-examine a witness at a preliminary hearing.

[33] In Re Regina and Arviv (1985), 1985 CanLII 161 (ON CA), 51 O.R. (2d) 551 (C.A.), Martin J.A. considered whether the Charter afforded the accused a right to question a witness at a preliminary inquiry. The case against the accused was proceeding by direct indictment. As a result, no preliminary inquiry was held and the accused had no opportunity to cross-examine a “key witness” (p. 562). The Crown had provided the accused with the testimony of this witness at the preliminary inquiry of an accomplice of the accused as well as that same witness’s testimony from the accomplices’ trial. The Crown had further provided the accused with other statements that had been made by the witness, including a videotaped statement that the witness had made to the police (pp. 561-62).

[34] Martin J.A. stated, at pp. 560 and 562:

The constitutional standard which a criminal trial must satisfy under s. 7 of the Charter is the standard encompassed by the concept “the principles of fundamental justice”. The so‑called “right” to a preliminary hearing is not elevated to a constitutional right under the Charter. . . .

. . . We are not prepared to hold and, in our view, are not entitled to hold, that the failure to provide the opportunity to cross‑examine, even a key witness, prior to the giving of evidence by that witness at the trial, per se, contravenes the Charter, where full disclosure of the Crown’s case and of the witness’s evidence has been made.

I agree with the principle expressed by Martin J.A. There is no independent Charter right to cross‑examine a witness at a preliminary inquiry. As stated above, s. 7 of the Charter protects the right of the accused to make full answer and defence. As indicated, in order to make full answer and defence, the Crown must provide the accused with disclosure (see Stinchcombe). However, this does not mean that the accused has a Charter right to a particular method of disclosure.

[35] In R. v. Sterling (1993), 1993 CanLII 6775 (SK CA), 113 Sask. R. 81, the Saskatchewan Court of Appeal considered whether, in light of this Court’s decision in Stinchcombe, the accused had a Charter right to cross-examine a witness at a preliminary inquiry. After endorsing the judgment of Martin J.A. in Arviv, Wakeling J.A., concurring, said, at para. 77:

The principle appears to have been established that production of witnesses, which is what a preliminary hearing produces, is not an essential component of fundamental justice so long as full disclosure is otherwise given by the Crown.

[36] Although the primary purpose of the preliminary inquiry is to enable a provincial court judge to determine whether an accused should be committed for trial, as noted by Martin J.A. in Arviv, at p. 560, “the preliminary hearing does serve the ancillary purpose of providing a discovery of the Crown’s case”. However, if Crown disclosures are otherwise complete, then the accused’s s. 7 right has not been infringed by his not being able to cross-examine a witness at a preliminary hearing. The discovery purpose of the preliminary inquiry has been met through other means, such as providing the accused with witness statements.

[37] In the present case, the Crown provided the appellant with disclosure, albeit late. In light of the fact that disclosure was ultimately provided to the appellant, the appellant’s s. 7 right to make full answer and defence was not infringed by his inability to cross-examine the potential Crown witnesses at a preliminary hearing. The appellant was provided with a transcript of a videotaped KGB statement of one accomplice, as well as an agreed statement of facts that formed the basis for a guilty plea and sentencing of the other accomplice. This material provided the appellant with sufficient disclosure of the Crown’s case against him. The appellant could make full answer and defence as guaranteed by s. 7 of the Charter without the need to cross-examine these witnesses at a preliminary inquiry. The prejudice resulting to the appellant from this late Crown disclosure would therefore have been cured by an adjournment to provide the appellant with an opportunity to consider this new evidence against him.

[38] Unlike the exclusion of the impugned evidence ordered by the trial judge, an adjournment would have preserved society’s interest in a fair trial while still curing the prejudice to the accused. Had he properly directed himself, this should have been the remedy ordered.

8. Conclusion

[39] By ordering exclusion of evidence, the trial judge did not impose an appropriate and just remedy when an adjournment and disclosure order would have sufficiently addressed the prejudice to the appellant while preserving society’s interest in a fair trial. I am of the respectful opinion that, in doing so, the trial judge misdirected himself.

[40] I would dismiss the appeal and confirm the order of the Court of Appeal for a new trial.

The reasons of Binnie, Fish and Abella JJ. were delivered by

Fish J. (dissenting) —

I

[41] The order of the trial judge that concerns us here is subject to appellate interference only if the Court abandons the governing principles adopted by the Court itself nearly a quarter-century ago — and has since then repeatedly and consistently applied. I would decline to do so.

[42] Briefly stated, these are the governing principles. On an application under s. 24(1) of the Canadian Charter of Rights and Freedoms, once an infringement has been established, the trial judge must grant “such remedy as [is] appropriate and just in the circumstances”. The remedy granted must vindicate the rights of the claimant, be fair to the party against whom it is ordered, and consider all other relevant circumstances. Appellate courts may interfere with a trial judge’s exercise of discretion only if the trial judge has erred in law or rendered an unjust decision. This is particularly true of remedies granted by trial judges under s. 24(1) of the Charter, which by its very terms confers on trial judges the widest possible discretion. Finally, appellate courts must take particular care not to substitute their own exercise of discretion for that of the trial judge merely because they would have granted a more generous or more limited remedy.

[43] Justice Rothstein would confine the broad and unfettered discretion of trial judges under s. 24(1) of the Charter to two narrow circumstances. In my respectful view, this proposed change in the law is unwarranted, inconsistent with prior decisions of the Court and incompatible with the plain language and evident purpose of s. 24(1) of the Charter.

[44] With respect, moreover, the new standard proposed by my colleague is inappropriate for other reasons as well.

[45] First, it introduces for exclusion of evidence as a remedy under s. 24(1) of the Charter the same exacting standard that until now has been uniquely reserved for a far more drastic remedy — a stay of proceedings. At best, this fusion of the formerly distinct tests invites confusion regarding their application to the two distinct remedies. At worst, the fused test eliminates exclusion of evidence as a live option under s. 24(1).

[46] Second, the test for exclusion proposed by my colleague takes no account of the nature of the constitutional violation or infringement, limiting the remedy of exclusion without regard to which Charter right or freedom has been abridged.

[47] Third, the proposed test regulates the discretionary remedy of exclusion under s. 24(1) of the Charter more closely, and more intrusively, than an order of exclusion under s. 24(2). This strikes me as particularly incongruous: The plain language of both provisions makes it perfectly clear that a trial judge’s discretion under s. 24(1) is broader, not narrower, than under s. 24(2). Moreover, under the narrow test proposed by my colleague, trial courts would be precluded from granting exclusion as a remedy under s. 24(1), yet required by the panoply of factors just recently set out in Grant to order exclusion under s. 24(2) in analogous circumstances. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, particularly at para. 71.

[48] For these reasons and for the reasons that follow, I agree with Brooker J. (ad hoc), dissenting in the Court of Appeal (2007 ABCA 425, 83 Alta. L.R. (4th) 4), that the trial judge committed no reviewable error in exercising his discretion as he did.

[49] With respect for those who are of a different view, I would therefore allow the appeal, set aside the order for a new trial, and restore the verdict at trial.

II

[50] It is undisputed that the appellant’s constitutional right to timely disclosure, guaranteed by s. 7 of the Charter, was infringed by the Crown in this case. And it is undisputed as well that the appellant was therefore entitled to a remedy under s. 24(1) of the Charter.

[51] The Court has made it clear, time and time again, that orders under s. 24(1) should be disturbed on appeal “only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice”: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 117. Justice Rothstein, at para. 15, reaffirms this standard of review.

[52] There is no suggestion in Justice Rothstein’s reasons that the trial judge in this case exercised his discretion unreasonably or in a manner that amounted to an injustice. Rather, my colleague finds that the trial judge, in excluding the previously undisclosed evidence, erred in law. As I stated at the outset, the trial judge’s exercise of discretion in this regard can properly be characterized as an error of law only if we change the law. And with the greatest of respect, as likewise stated at the outset, I believe the change in the law proposed by Justice Rothstein is unwarranted, inconsistent with prior decisions of the Court and incompatible with the plain language and evident purpose of s. 24(1) of the Charter.

[53] The full extent of a trial judge’s discretion in crafting a remedy under s. 24(1) was recognized by the Court in the earliest days of the Charter, and has since then been reaffirmed in the clearest of terms:

It is difficult to imagine language which could give the court a wider and less fettered discretion [than that of s. 24(1)]. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre‑empt or cut down this wide discretion.

(Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 965. Cited with approval in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 24, 50 and 52; in R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, per La Forest J., at p. 640; and again in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575.)

[54] As if for added emphasis, McLachlin C.J., speaking for the Court in 974649 Ontario, at para. 18, described s. 24(1) as “confer[ring] the widest possible discretion on a court to craft remedies for violations of Charter rights”.

[55] Justice Rothstein proposes that this broad and unfettered discretion be henceforth narrowly constrained. Under my colleague’s novel approach — I say “novel” because it is entirely unsupported by precedent — evidence may be excluded as a remedy under s. 24(1) of the Charter in two circumstances only: (1) where its admission would result in an unfair trial and the unfairness cannot be remedied by any lesser remedy; or (2) where exclusion of the evidence is necessary to preserve the integrity of the justice system (paras. 23, 24 and 27). And this second exceptional circumstance is itself limited to “clear cases” where countervailing interests — such as society’s interest in having all available evidence presented at trial — are outweighed (para. 27).

[56] In short, the Charter entitles anyone whose rights or freedoms have been infringed “to obtain such remedy as the court considers appropriate and just in the circumstances”. This “widest possible discretion” is subject to appellate interference, as we have seen, “only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice” (Regan, at para. 117). There is no suggestion, I repeat, that the trial judge’s decision in this case amounted to an injustice. On the contrary, the trial judge exercised his discretion reasonably, and well within the broad limits fixed by the Charter and the governing principles set out in Mills and its progeny.

[57] Accordingly, my purpose here is not to defend the trial judge’s choice of remedy. It requires no further defence. My purpose, rather, is to uphold the trial judge’s constitutional authority, under s. 24(1) of the Charter, to make that choice. If the discretion were theirs to exercise, some judges might well have chosen instead to order disclosure and adjourn the proceedings. But we are not entitled to intervene for that reason:

The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way.

(Friends of the Oldman River Society v. Canada (Ministry of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at p. 76, quoting Charles Osenton and Co. v. Johnston, [1942] A.C. 130 (H.L.), at p. 138.)

[58] An appellate court that would have exercised original discretion as the trial judge did will rarely be tempted to tamper with the law as it stands. The temptation, I fear, is far greater, where the appellate court might have been inclined to exercise its discretion differently. Disagreement, particularly strong disagreement, invites caution: A reviewing court must not, on account of its disagreement alone, place trial judges offside by redrawing the established boundaries of their discretion.

[59] I think it better by far for an appellate court to affirm a discretionary decision with which it disagrees than to reverse it impermissibly by adopting, ex post facto, a more regimented framework that might have resulted in what it regards as a preferable result at trial. In the context that concerns us here, the law as it stands does not authorize us to intervene in the impugned decision of the trial judge. And the proposed change in the law, while it would prevent trial judges in future cases from exercising their discretion as the trial judge did here, would at the same time hypothecate their constitutional duty, under s. 24(1) of the Charter, to fashion appropriate and just remedies in circumstances we cannot anticipate.

III

[60] It is true that in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, the Court limited access to a particular remedy under s. 24(1) by imposing essentially the same stringent test that Justice Rothstein would adopt here. But that case dealt with a stay of proceedings and has no application here.

[61] The stringent limits placed on the issuance of stays are a function of the severity and finality of that remedy. Unlike a stay of proceedings, the exclusion of impugned evidence rarely terminates the proceedings — and, more rarely still, terminates the proceedings definitively. On the contrary, probative evidence is often excluded under the common law of evidence or under s. 24(2) of the Charter in trials that nonetheless proceed and routinely result in convictions.

[62] At the very least, the exclusion of evidence as a s. 24(1) remedy should not be subject to the same demanding criteria as a stay of proceedings unless exclusion will preclude a trial, which is not our case. Here, Mr. Bjelland was committed to trial at the conclusion of a preliminary inquiry that proceeded without the tardily disclosed evidence. Moreover, after that evidence was excluded by the trial judge, the Crown was evidently satisfied that the remaining evidence was capable of supporting a conviction. In the absence of a reasonable prospect of conviction, Crown counsel could not reasonably have proceeded with the trial.

[63] The Crown did have an option. Instead of proceeding on the strength of the remaining evidence in its possession, the Crown, if it considered the excluded evidence of central importance to its case, could have declared its proof closed and appealed the inevitable acquittal on the very ground that it now invokes. On the other hand, if the Crown did not attach great importance to the evidence then, it can hardly ask us to do so now. And yet, having opted to place Mr. Bjelland in jeopardy of conviction at one trial on evidence it considered sufficient, the Crown now seeks a “second kick at the can”.

[64] On any view of the matter, the remedy of exclusion granted by the trial judge was hardly equivalent to a stay of proceedings and should not be made subject to the same constraints.

[65] Finally, we have long accepted that an acquittal that results from the exclusion of evidence is warranted by overriding considerations of justice. See R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 42 (per McLachlin J., as she then was, concurring); R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at pp. 82, 91 and 92 (per Dickson C.J., for the unanimous Court); R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 282-86. The policy of the law in this regard was well put by Samuel Freedman, then Chief Justice of Manitoba, in this well-known passage:

The objective of a criminal trial is justice. Is the quest of justice synonymous with the search for truth? In most cases, yes. Truth and justice will emerge in a happy coincidence. But not always. Nor should it be thought that the judicial process has necessarily failed if justice and truth do not end up in perfect harmony. . . . [T]he law makes its choice between competing values and declares that it is better to close the case without all the available evidence being put on the record. We place a ceiling price on truth. It is glorious to possess, but not at an unlimited cost. “Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much.”

(“Admissions and Confessions”, in R. E. Salhany and R. J. Carter, eds., Studies in Canadian Criminal Evidence (1972), 95, at p. 99, quoting Pearse v. Pearse (1846), 1 De G. & Sm. 12, 63 E.R. 950, at p. 957.)

Restricting exclusion as a remedy under s. 24(1) of the Charter to those limited circumstances in which a stay would be warranted at once exaggerates the severity of exclusion as a remedy and minimizes the importance attached by our system of justice to objectives other than truth-finding.

IV

[66] The trial judge reviewed the evidence carefully and accurately. He considered and rejected alternative remedies, including a stay of proceedings and an adjournment.

[67] Understandably, the trial judge considered as well that exclusion of the tardily disclosed evidence was not a particularly drastic remedy in this case. He noted that the remaining evidence had been found sufficient by a Provincial Court Judge at the conclusion of a preliminary inquiry, to permit a reasonable jury, properly instructed, to find the appellant guilty as charged.

[68] Ultimately, the trial judge concluded that “[t]he proper remedy which address[es] the accused’s rights and balances those rights with the interest[s] of society, is to place both the accused and the Crown in the position they occupied before the Crown attempted to introduce this new evidence.” Manifestly, the trial judge was guided in his exercise of discretion by the established principles governing applications for a remedy under s. 24(1) of the Charter.

[69] On the whole of the record, I am thus satisfied that the trial judge’s decision under this standard was neither erroneous in law nor so clearly wrong as to amount to an injustice.

V

[70] For all of these reasons, as mentioned at the outset, I would allow the appeal, set aside the order for a new trial, and restore the verdict at trial.

Appeal dismissed, Binnie, Fish and Abella JJ. dissenting.

Solicitors for the appellant: Lord, Russell, Tyndale, Hoare, Calgary.

Solicitor for the respondent: Public Prosecution Service of Canada, Calgary.