COURT FILE NO.: CR-10-435-00

DATE: 20120706

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Nora L. Lapp and Geoffrey Roy for the Crown

Respondent

• and -

ANDREW DUNCAN, JOANNA ROSS, KAREN STEVENSON AND MEGHAN STAATS, TANIA SUNDAY

Mr. Guiste for Andrew Duncan

Mr. Fedunchak for Joanna Ross

Ms. Giordano for Karen Stevenson

Mr. Sederoff for Meghan Staats

Ms. Grant for Tania Sunday

Applicant

HEARD: November 21, 2011

RULING RE: STAY APPLICATION

Fragomeni J.

1On November 21, 2011 Mr. Andrew Duncan brought an application to stay the prosecution on all or at least some of the counts as against him. In support of this application he filed an affidavit sworn by Mr. Andrew Duncan on November 21, 2011. The grounds for the application relate to a disclosure request made by Mr. Duncan. The stay application was dismissed on November 21, 2011 with written reasons to follow. I am now providing to counsel the written reasons.

2The evidence in this trial commenced on October 14, 2011. Sergeant Ed Moreland was the first witness called by the Crown. The Crown’s opening to the jury was on October 13, 2011.

3All of the evidence in this matter was completed on November 14, 2011. On that day a pre-charge conference was held.

4On November 16, 2011 the defence gave their closing addresses. Mr. Guiste on behalf of Mr. Duncan proceeded first. Mr. Fedunchak on behalf of Ms. Ross proceeded second. Ms. Giordano for Ms. Stevenson proceeded next followed by Mr. Sederoff for Ms. Staats.

5On November 17, 2011 Ms. Grant, on behalf of Ms. Sunday, gave her closing address followed by the Crown.

6The matter was then adjourned to November 18, 2011 to review the draft charge. On November 18, 2011 Mr. Guiste was not in attendance and his co-counsel, Ms. Velvet, attended for the review of the draft charge. Discussions took place over the course of the day with counsel. Ms. Velvet advised that she would require more time to go over the draft charge with Mr. Guiste and requested the weekend to do so.

7Although the jury was instructed to return Monday November 21, 2011 at 9:30 a.m. for my charge, in light of Ms. Velvet’s request, the members of the jury were contacted and instructed to return Monday at 2:15 p.m. so that further submissions could be received by Mr. Duncan’s counsel regarding the draft charge.

8On Monday November 21, 2011, Mr. Guiste had very brief comments relating to the draft charge.

9It is at this point that the Court was going to adjourn to 2:15 p.m. to commence the jury charge. Prior to breaking, Mr. Guiste on behalf of Mr. Duncan asked the court to consider his stay application.

10At the start of this trial Mr. Guiste did advise the court that it was Mr. Duncan’s intention to proceed with an abuse of process stay application based on disclosure issues relating to contact information for Junior Wright and Mr. Dennis Roussy. Attached as Exhibit A to the November 21, 2011 Affidavit of Mr. Duncan is the Crown’s response to Mr. Guiste’s disclosure issues. The letter is dated October 13, 2011 and states:

We have reviewed your email of 12 October 2011 to Ms. Lapp. Please see the responses below.

Requests Re Junior Wright:

Contact information for Mr. Wright: the last known address the crown has for Mr. Wright is 98 Fletcher Av., Ajax, Ontario.

Request for a synopsis regarding Mr. Wright for some “drug related charges in and around late October, 2008.”: We are not in possession of this disclosure. The crown takes the position this information is irrelevant to the matters currently before the court.

A request for particulars of a matter in Barrie where you allege Mr. Wright was a confidential informant.: The Crown is not in possession of any information relating to this incident. In any event, this is irrelevant to the matters currently before the court.

A request for a synopsis relating to the arrest of Ian Tony in the winter of 2007.: The crown is not in possession of any information relating to this incident. In any event, this is irrelevant to the matters currently before the court.

A request for the details of how charges against Richard Nelson around December 2008 were disposed of, and why he was not deported: The crown is not in possession of any information relating to this incident. In any event, this is irrelevant to the matters currently before the court.

You have also asked for the contact information for Dennis Roussy. We have been advised by Corrections Canada that Mr. Roussy is currently on parole, however, Corrections will not give us Mr. Roussy’s current address. If you obtain a subpoena for Mr. Dennis Roussy, we will facilitate service of that subpoena.

Yours truly,

Geoffrey Roy and Nora Lapp

11The initial identification of these concerns and the abuse of process issue was adjourned to be dealt with at the close of the Crown’s case. In this way the Crown’s case will have been called and Mr. Duncan would then be in a position to assess his concerns relating to his defence.

12At the close of the Crown’s case, all accused proceeded with Motions for Directed Verdict. All of those Motions were heard on November 4, 2011 and November 8, 2011.

13The Crown responded to the Motions for Directed Verdict on November 8, 2011. On November 9, 2011, for written reasons filed, all of the Motions for Directed Verdicts were dismissed save and except count 11 as it related to Karen Stevenson. The Crown conceded that a Directed Verdict on her on count 11 was appropriate.

14No other motions were heard or dealt with at the close of the Crown’s case. Mr. Duncan did not proceed with his abuse application. Mr. Guiste did not proceed with a motion for an order for disclosure. At the close of the Crown’s case and at the time counsel indicated they would all be proceeding with Directed Verdict Motions, Ms. Lapp specifically requested of counsel whether any other motions were being brought, now that the Crown’s case was completed, and none were identified.

15On November 9, 2011 Mr. Guiste made an opening on behalf of Mr. Duncan and the defence commenced. The only other defence evidence called was by Ms. Sunday who played wiretap calls not played by the Crown.

16The Application for a stay was made on November 21, 2011 after all of the evidence had been called, including the defence evidence, and after all of the closing addresses had been completed.

17As I indicated in support of his stay application on November 21, 2011, Mr. Duncan filed an Affidavit sworn November 21, 2011. It is important to set out portions of this Affidavit to provide context to the discussion that follows.

18Mr. Duncan’s Affidavit deals with two areas. One relates to Mr. Wright. At paragraphs 7 and 9 of his Affidavit he states:

Counsel representing me sought disclosure of an address for Mr. Wright, a synopsis pertaining to drug related charges he faced in and around October, 2008 and particulars of a drug-related matter in Barrie in which Mr. Wright was a confidential informant.

Counsel representing me advised Crown Counsel that Mr. Wright no longer lives at 98 Fletcher Avenue in open court. Crown Counsel never provided an address to Mr. Wright, they did not call him to give evidence and I was unable to do so on account of their non-disclosure.

19The second area relates to Mr. Dennis Roussy. At paragraphs 10, 11, 15 and 16 Mr. Duncan states the following:

Dennis Roussy was charged as a co-conspirator with me. Dennis Roussy lived in Barrie at the time of the criminal investigation into this prosecution. The charges against him were dismissed at the preliminary inquiry stage and he is no longer a co-conspirator with the count involving his father.

I understand through the testimony of Cpl Moreland in this trial that he was perplexed by the fact that Dennis Roussy was discharged at the preliminary inquiry based on a lack of identification evidence – namely that Mr. Leonide Roussy may have more than one son.

Mr. Dennis Roussy testified in this trial that to the best of his knowledge he is indeed his father’s only son.

The fact that Mr. Dennis Roussy was discharged at our preliminary inquiry on the basis that he was and in light of his admission on May 26, 2010 and his testimony before this court combined with the testimony of Cpl. Moreland points to an improper use of the court process which causes me to seriously question the fairness and integrity of my prosecution.

20At paragraph 19 Mr. Duncan concludes his concerns as follows:

The sought after disclosure would have assisted me in making full answer and defence to the allegations in which Junior Wright and Dennis Roussy are involved.

The Law Re: Stay

21In R. v. Wicksted (1996), 106 C.C.C. (3d) 385 (Ont. C.A.) the Court set out the following at pgs. 393 and 394:

The law with respect to the remedy of a judicial stay of proceedings has been dealt with recently by the Supreme Court of Canada in R. v. O'Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1. The appropriate principles to be applied are set forth in the reasons of L'Heureux-Dubé J. At p. 83 S.C.R., p. 43 C.C.C. she said by way of summary:

Where life, liberty or security of the person is engaged in a judicial proceeding, and it is proved on a balance of probabilities that the Crown's failure to make proper disclosure to the defence has impaired the accused's ability to make full answer and defence, a violation of s. 7 will have been made out. In such circumstances, 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.

In dealing with the matter of establishing that the non- disclosure by the Crown violates s. 7 of the Canadian Charter of Rights and Freedoms, she said at pp. 464-65 S.C.R., p. 40 C.C.C.:

Where the accused seeks to establish that the non-disclosure by the Crown violates s. 7 of the Charter, he or she must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence. It goes without saying that such a determination requires reasonable inquiry into the materiality of the non-disclosed information. Where the information is found to be immaterial to the accused's ability to make full answer and defence, there cannot possibly be a violation of the Charter in this respect. I would note, moreover, that inferences or conclusions about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial. Once a violation is made out, a just and appropriate remedy must be found.

She said further at pp. 465-66 S.C.R., pp. 41-42 C.C.C.:

There may, however, be exceptional situations where, given the advanced state of the proceedings, it is simply not possible to remedy through reasonable means the prejudice to the accused's right to make full answer and defence. In such cases, the drastic remedy of a stay of proceedings may be necessary. Although I will return to this matter in my discussion on the disclosure of records held by third parties, we must recall that, under certain circumstances, the defence will be unable to lay the foundation for disclosure of a certain item until the trial has actually begun and witnesses have already been called. In those instances, it may be necessary to take measures such as permitting the defence to recall certain witnesses for examination or cross-examination, adjournments to permit the defence to subpoena additional witnesses or even, in extreme circumstances, declaring a mistrial. A stay of proceedings is a last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted.

When choosing a remedy for a non-disclosure that has violated s. 7, the court should also consider whether the Crown's breach of its disclosure obligations has also violated fundamental principles underlying the community's sense of decency and fair play and thereby caused prejudice to the integrity of the judicial system. If so, it should be asked whether this prejudice is remediable. Consideration must be given to the seriousness of the violation and to the societal and individual interests in obtaining a determination of guilt or innocence. ...

(Emphasis in original.)

At p. 468 S.C.R., p. 43 C.C.C. she stated the following reminder:

It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

22In R. v. Dulude (2004), 189 C.C.C. (3d) 18 (Ont. C.A.) the court stated at paras. 26 and 36:

In R. v. Bero, supra, at para. 29, Doherty J.A. observed that the defence's failure to pursue disclosure with reasonable diligence may militate against a claim that non-disclosure resulted in a breach of an accused's Charter rights. The Crown relies on this observation and on other case law suggesting the defence has an obligation to pursue disclosure diligently. See, for example, R. v. Dixon, supra, at paras. 37-38 and R. v. Bramwell (1996), 106 C.C.C. (3d) 365 at para. 33 (B.C.C.A.), aff'd [1996] 3 S.C.R. 1126. It argues that where the relevance of information is not immediately obvious - and it puts the videotape in this category - an accused who does not make a timely and specific request for disclosure cannot later claim a breach of s. 7 of the Charter.

I therefore consider the appropriateness of a stay afresh. A stay is a remedy of last resort, rarely granted because both the accused and the community are entitled to a verdict on the merits. A stay because of the Crown's failure to disclose relevant evidence is justified only if the non-disclosure irreparably prejudices either the accused's ability to make full answer and defence, or the integrity of the administration of justice. See R. v. Bero at para. 42; R. v. Leduc (2003), 176 C.C.C. (3d) 321 (Ont. C.A.) at para. 99; R. v. O'Connor, [1995] 4 S.C.R. 411 at para. 68; and R. v. La, supra, at para. 23.

23In this case the disclosure letter to the Crown is dated October 12, 2011 to Ms. Lapp. Mr. Roy and Nora Lapp respond in their letter dated October 13, 2011. Although Mr. Duncan had indicated his intention to proceed with the stay application at the close of the Crown’s case he did not do so. He did however proceed with a Directed Verdict Motion.

24In their letter of October 13, 2011 the Crowns set out their position with respect to each item. As I indicated Mr. Duncan sought relief with the stay application after all of the evidence has been called, all counsel have completed their closing addresses, the pre-charge conference and review of the draft charge was complete.

25It is difficult to understand how the defence for Mr. Duncan has been compromised such that he could not make full answer and defence. Mr. Dennis Roussy was in fact subpoenaed by Mr. Duncan and testified on his behalf in his defence. The Crown provided to Mr. Guiste, Mr. Wright’s last known address. There is no indication what efforts Mr. Duncan made to locate Mr. Wright after determining that he no longer resides at the last known address provided by the Crown. On this point the Crown argues that it is not an investigative agency for the defence. The Crown did not call Mr. Wright as part of their case.

26Further, and as set out in his November 21, 2011 Affidavit, Mr. Duncan’s counsel had an opportunity to elicit testimony from Cpl. Moreland regarding Mr. Wright and Mr. Roussy.

27With respect to the other disclosure requests a full hearing to determine whether the disclosure requested was relevant was not requested at the close of the Crown’s case. Another issue that may have been in play as well related to whether this information was in the possession of third parties who would have required notice of such disclosure requests. In any event Mr. Duncan’s November 21, 2011 affidavit does not address the areas relating to Ian Tony or Richard Nelson.

28It is difficult to understand Mr. Duncan’s position that the importance of this information was such that it impaired his ability to make full answer and defence and yet he did not diligently pursue any remedy to obtain this information.

29A remedy for Charter infringement due to non-disclosure is typically a disclosure order and an adjournment, Where there is prejudice to the accused’s ability to make full answer and defence a stay of proceedings is appropriate. Other remedies include, permitting the accused to recall witnesses, and adjournments to permit the accused to subpoena additional witnesses. The timing of Mr. Duncan’s stay application made these two remedies impossible. All of the evidence had been called, from both sides for all accused and closings had been completed by all counsel.

30The imposition of a stay of proceedings is for all intents and purposes an acquittal and it should only be invoked where the Court is satisfied that a particular Charter right has been infringed.

31In R. v. Johnson, 2007 ONCA 419, (Ont. C.A.) the Court set out the following at paras. 7 to 13:

In circumstances such as these, the courts have held that it is preferable to proceed with the trial and then determine the abuse motion with the benefit of all the evidence. A stay should be granted prior to the conclusion of the trial only if "it is clear that no other course of action will cure the prejudice" to the accused. This is because the court will be in a better position at the end of the trial to determine whether actual prejudice has occurred: R. v. La (1997), 116 C.C.C. (3d) 97 at 109-110 (S.C.C.).

In the present case, the Crown asked the trial judge to follow this course of action. In a factum, filed on the abuse motion, the Crown submitted that the motion should not be decided until after all the evidence was heard. She relied upon La. In her oral submissions, the Crown pointed out that a determination of prejudice on the record then before the court would be premature and largely speculative. Once the evidence was heard, the prejudice, if any, would be known.

In his reasons granting a stay, the trial judge did not consider the option of adjourning his decision on the motion until after he had heard all of the evidence, including possibly the evidence of Kevin Dickie. In our view, he erred in not adopting this approach.

While the trial judge had the discretion to decide a motion such as this before trial, he was required to exercise that discretion in accordance with the appropriate principles. Professor David Paciocco in his work entitled "The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept" (1991) 15 Crim. L.J. 315 at 340-41 sets out two criteria relating to prejudice that should be fulfilled in order for a stay of proceedings to be granted:

1. the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

2. no other remedy is reasonably capable of removing that prejudice.

These criteria were adopted by the Supreme Court of Canada in R. v. O'Connor, [1995] 4 S.C.R. 411 at para. 75.

The onus was on the respondent to establish prejudice. On the record before the trial judge, it was not shown that the prejudice was manifest or aggravated. The evidence of prejudice was almost entirely speculative. It was impossible to know whether Kevin Dickie, if interviewed further or called as a witness, could have provided details of the phone calls that would have assisted the defence. The police interview was not thorough enough to canvass his memory so as to provide any certainty in this regard.

Moreover, there was no reason for the trial judge to order a stay of proceedings at the outset of the trial, rather than allowing it to proceed and assessing the issue of possible prejudice at its conclusion. Indeed, the cases point out that the remedy of a stay for an abuse of process should be exercised only rarely. It is clearly desirable that cases be decided on their merits, if possible.

Thus, in our view, the trial judge should not have stayed the charges upon the record before him.

32In all of these circumstances I am not satisfied that the circumstances of this case fall within the “clearest of cases”. This case before the jury was largely a wiretap case. About 100 calls were played for the jury. Surveillance officers also testified and other investigations relating to co-conspirators were also put before the jury. Much of the jury’s work would have been to listen to and interpret who was speaking and what was being said. Mr. Duncan did not testify at trial. It is difficult to see how, in these circumstances, investigations relating to third parties could affect Mr. Duncan’s ability to make full answer and defence.

33If the Jury concluded that it was Mr. Duncan speaking on the calls and without the benefit of hearing from Mr. Duncan as to what the intention or meaning of his words were, the Jury was tasked to listen to the calls and interpret what was being said considering the total body of evidence called at trial.

34The Crown’s evidence relating to Mr. Duncan’s involvement in the charges he was facing was comprised of the intercepted telephone calls, the surveillance testimony of the officers, and the other investigations relating to the seizure of controlled substances and proceeds at the land borders and Pearson Airport.

35Mr. Duncan, has failed to establish, on the evidentiary record before me, that a stay of any of the charges is warranted.

36In all these circumstances the Application for a stay is dismissed.

Fragomeni J.