COURT FILE NO.: 230/12

DATE: 20130115

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

MOHAMED JAMA

Counsel: Michael Wilson, for the Crown Ryan Handlarski, for the Accused

HEARD: December 12, 2012

BEFORE: K.L. Campbell J.

Pretrial Ruling: Application to Stay Proceedings for Late Disclosure

I. Overview

[1] The accused, Mohamed Jama, currently faces a 19-count indictment alleging the commission of a variety of offences springing from a series of armed robberies of small businesses committed in Toronto between September 1 and October 1, 2009. He was committed for trial following a lengthy preliminary inquiry where the main issue was the admissibility of various post-arrest statements allegedly made by the accused.

[2] The accused now brings a pre-trial application seeking a stay of all of the criminal proceedings against him. The accused contends that by virtue of the late disclosure of his cell phone records part way through the preliminary inquiry, his right to make full answer and defence, as guaranteed by s. 7 of the Charter of Rights, was violated and irreparably prejudiced.

[3] The Crown candidly admits the unfortunately tardy nature of the disclosure of these cell phone records, but argues that any violation of the accused’s s. 7 Charter rights is minimal and can be easily remedied by a much less extreme remedy than a stay of the criminal proceedings against the accused. More specifically, the Crown suggests that any potential prejudice to the accused can be adequately remedied by the exclusion of certain voir dire testimony from the accused at the preliminary inquiry.

[4] Accordingly, the main issues on this pre-trial application relate to: (1) whether the late disclosure of the accused’s cell phone records amounts to a violation of his rights under s. 7 of the Charter; and (2) if so, whether the appropriate and just remedy for the breach is a stay of proceedings, or the exclusion of some or all of his testimony under s. 24(1) of the Charter.

II. The Relevant Factual Background

The Late Disclosure of the Cell Phone Records

[5] The case against the accused turns largely, but not entirely, on the admissibility of statements allegedly made by him following his arrest on October 1, 2009. The accused contends that these statements are inadmissible as they were made involuntarily and as a result of violence he suffered at the hands of the police. Essentially, the accused asserts that he falsely confessed to these alleged offences in order to stop the beatings he was receiving from the police.

[6] The preliminary inquiry in this case, which took place before Madam Justice Tuck-Jackson, was a lengthy proceeding in which the admissibility of the various statements by the accused was hotly contested. The many police officers who dealt with the accused on the night of his arrest were called as witnesses by the Crown on the voir dire conducted to determine the admissibility of the accused’s statements, and each officer explained their respective interactions with the accused that night. According to this body of evidence, while some force was admittedly employed by the police in their arrest of the accused in the underground parking lot where he lived, this force was necessary as the accused resisted arrest. On the testimony of the police officers, however, there were no acts of gratuitous violence against the accused in order to secure a confession, and all post-arrest statements by the accused were entirely voluntary.

[7] The accused testified on this voir dire and provided a very different version of events. In his testimony, the accused explained, in detail, how these false confessions were induced by the extreme violence inflicted on him by the police in the hours immediately following his arrest.

[8] In the result, Tuck-Jackson J. rejected the testimony of the accused as incredible and concluded that the Crown had established beyond a reasonable doubt that the various statements by the accused were made voluntarily and, thus, were admissible.

[9] During his evidence in-chief on the voir dire, the accused also testified briefly as to his activities and whereabouts during the late afternoon and evening of October 1, 2009, just before his arrest at approximately 10:30 p.m. This testimony was significant as two of the alleged robberies took place during this same time period. The Crown cross-examined the accused briefly on his account in this regard, and the accused testified in accordance with the evidence he had already given in-chief on those issues.

[10] Before concluding his cross-examination of the accused, the Crown advised defence counsel that, given this testimony by the accused, he proposed to tender, in reply, the cell phone records with respect to the calls made or received by the accused on October 1, 2009. The Crown suggested that these records proved that the accused was not, in fact, where he said he was on October 1, 2009, as the cell phone tower information regarding these calls showed otherwise. Before any further developments, however, the matter was adjourned.

[11] In the days that followed, it eventually became apparent that defence counsel for the accused had not yet been provided with these cell phone records. Correspondence revealed that, on December 15, 2010, the investigating police officer with the Toronto Police Service sent the Crown, by means of an e-mail message, electronic copies of these cell phone records. In this e-mail message, the officer explained that the records were “rather involved” and that he would “go through them” early in the “new year.” He was leaving later that week for his Christmas holidays. The police officer also stated: “We will disclose the records in hard copy as well through proper channels.” Unfortunately, on his return from his vacation, the officer did not follow through on this undertaking to disclose these records to defence counsel.

[12] On September 22, 2011, immediately on discovering this inadvertent non-disclosure, the Crown provided defence counsel with electronic copies of these cell phone records. Accordingly, the disclosure of these records was delayed for a period of over nine months, from December 15, 2010 when the records were first received by the Crown, until September 22, 2011, when the Crown provided them to counsel for the accused. While these cell phone records were quite voluminous (some 2,000 pages in total), only two of these many pages actually related to calls involving the accused.

[13] When the preliminary inquiry resumed, the Crown provided an express undertaking not to rely on any of these cell phone records for purposes of the preliminary inquiry. In accordance with this undertaking, these cell phone records were never tendered or relied on by the Crown at the preliminary inquiry. Ultimately, as already mentioned, the accused was committed for trial.

III. The Positions of the Parties on the Application

A. The Position of the Accused

[14] The accused contends that the late disclosure of his cell phone records was a violation of his rights under s. 7 of the Charter of Rights and has caused him irreparable prejudice. More particularly, the accused argues that he was entitled to full and complete disclosure from the Crown prior to making the critical “executive decision” to testify on his own behalf as a witness on the voluntariness voir dire at the preliminary inquiry. Had the cell phone records been provided by the Crown in a timely way, defence counsel might well have decided not to call the accused as a witness or, alternatively, might not have elicited his alibi evidence regarding his whereabouts earlier in the day on October 1, 2009, when two of the robberies were allegedly committed.

[15] Applying the legal test from R. v. Dixon, [1998] 1 S.C.R. 244, the accused argues that, as these scenarios are “reasonable possibilities” had disclosure of the cell phone records been made promptly, the prejudicial results of the Crown’s late disclosure are twofold. First, the Crown now has full disclosure of the detailed testimony of the accused in relation to the critical voluntariness issues. The Crown would not have had discovery of this evidence if the accused had not testified. Second, the accused has now committed himself to an alibi in relation to the two alleged October 1, 2009 robberies, and has done so without knowledge of the cell phone records. If he testifies at trial in accordance with his preliminary inquiry evidence, the Crown may be able to establish it as false with the assistance of the cell phone records. Alternatively, if the accused provides a different version of events regarding his activities and whereabouts on October 1, 2009, his memory having been refreshed by the cell phone records, the Crown will be able to cross-examine him on his earlier inconsistent preliminary inquiry testimony. The accused argues that, in these circumstances, the late disclosure of the cell phone records by the Crown has irreparably damaged his ability to have a fair trial. Accordingly, the proceedings must be stayed.

[16] In the alternative, the accused argues that, if some lesser remedy is appropriate, an order should be made preventing the Crown from any evidentiary reliance on: (1) the preliminary inquiry testimony of the accused; and (2) the accused’s cell phone records.

B. The Position of the Crown

[17] The Crown concedes that there was, inadvertently, late disclosure of the cell phone records in this case. The Crown also agrees that it is reasonably possible that, had these cell phone records been promptly disclosed, the accused might not have given his alibi evidence regarding his activities and whereabouts on October 1, 2009 prior to his arrest. The accused might not have provided any testimony at all in relation to this issue or, alternatively, might potentially have given a different version of events regarding his activities and whereabouts.

[18] Accordingly, applying the legal test from R. v. Dixon, as appropriately modified for these circumstances, the Crown concedes that the late disclosure of the cell phone records amounts to a violation of s. 7 of the Charter in that there is a “reasonable possibility” that the late disclosure of the cell phone records would affect the outcome of the trial or the overall fairness of the trial.

[19] The Crown argues, however, that the accused has not suffered irreparable prejudice as a result of this tardy disclosure, and that a less extreme remedy would adequately relieve against the potential unfairness of the late disclosure. More specifically, the Crown argues that, in light of the fact that the accused had earlier testified, in other proceedings, about how the police had violently forced him to confess to these alleged offences after his arrest, the repetition of this same testimony at the preliminary inquiry in this matter did not strategically assist the Crown with any new information it did not already possess. Moreover, in the circumstances of this case, there is simply no reasonable possibility that the accused might have elected not to testify on the voluntariness voir dire at the preliminary inquiry if he had known about the cell phone records.

[20] The Crown contends that the remedy that repairs the breach of s. 7 of the Charter caused by the late disclosure of the cell phone records in this case is an order preventing the Crown from placing any evidentiary reliance on the voir dire testimony of the accused at the preliminary inquiry wherein he outlined his activities and whereabouts on October 1, 2009 prior to his arrest.

IV. Analysis

A. The R. v. Dixon Test – Addressing Non-Disclosure Issues on Conviction Appeals

[21] In order to determine whether, and the extent to which, the late disclosure of the cell phone records in this case resulted in a violation of the accused’s rights under s. 7 of the Charter, it is important to recognize and apply the governing legal standard. The parties agree that the appropriate starting point in this regard is the Supreme Court of Canada decision in R. v. Dixon, where Cory J., delivering the unanimous judgment of the court, considered the question of how appellate courts should assess and remedy the potential effects of non-disclosure at trial.

[22] In R. v. Dixon, a number of accused were tried and convicted of the offence of aggravated assault as a result of a serious incident of violence at a fraternity party. Prior to trial, defence counsel for the accused had been provided with “occurrence reports” that included summaries of statements given by four witnesses. However, it was not until after the conclusion of the trial and sentencing proceedings, when the accused were contemplating an appeal, that the Crown provided the accused with the actual statements of these four witnesses. On appeal, the accused argued that the non-disclosure of these statements justified the ordering of a new trial. Both the Nova Scotia Court of Appeal and the Supreme Court of Canada disagreed, and dismissed the appeals against conviction.

[23] In articulating the standard to be applied in determining whether there has been an impairment of the accused’s constitutional right to disclosure, Cory J. cited R. v. Carosella, [1997] 1 S.C.R. 80, at p. 106, and concluded, at para. 22:

Thus, 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.

[24] Cory J. cautioned, however, at para. 23, that simply finding that an accused’s right to disclosure has been violated does not end the analysis. Noting that Sopinka J. had wisely observed in R. v. Carosella that an appellate court must be careful not to confuse the obligation to establish a breach of the right to full answer and defence with the burden on the accused in seeking a stay, Cory J. commented that, similarly, the initial test to be met in establishing a breach of the right to disclosure must be kept “analytically distinct” from the burden to be discharged in relation to the remedy of a new trial. In this regard, Cory J. noted that the right to disclosure of “all relevant material” is one of “broad scope” and entitles the accused to materials that may have “only marginal value to the ultimate issues at trial.” It followed, Cory J. concluded, that if the Crown failed to disclose information which met the R. v. Stinchcombe, [1991] 3 S.C.R. 326, 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 ordering a new trial as a remedy under s. 24(1) of the Charter, as “no harm” had been suffered by the accused.

[25] Cory J. concluded, at para. 24, that for purposes of the first stage of the analysis, an appellate court may well find a breach of an accused’s Charter right to disclosure and yet not order a new trial if “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.” Cory J. noted that the right to full disclosure was just “one component” of the right to make full answer and defence, and stated that 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.”

[26] After examining the undisclosed statements and determining that two of these statements met the Stinchcombe standard of relevance, Cory J. concluded, at para. 30, that the accused’s right to disclosure was infringed by the Crown’s inadvertent failure to produce two of the statements.

[27] Subsequently, Cory J. outlined the standard to be applied in consideration of whether or not an accused’s right to make “full answer and defence” has been impaired by the late disclosure of information. Cory J. concluded, at para. 34, that this burden was discharged where an accused demonstrates that there is a “reasonable possibility” that the non-disclosure by the Crown “affected the outcome at trial or the overall fairness of the trial process.” Cory J. noted that while this test strikes a “fair balance,” the reasonable possibility to be illustrated “must not be entirely speculative,” but 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.”

[28] Cory J. concluded, at para. 35, that once an accused establishes impairment of the right to make full answer and defence from the non-disclosure, the accused is entitled to a remedy under s. 24(1) of the Charter. At this point, the degree of impairment or prejudice to the accused must be assessed and considered in relation to the remedy sought. Of course, as Cory J. noted, at para. 35, to secure the “extraordinary remedy” of a stay of proceedings, it is not enough for the accused to prove that his right to make full answer and defence was “impaired.” The accused must demonstrate “irreparable prejudice to that right.” On the other hand, when the remedy sought is a new trial, an accused need only convince 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.”

[29] Subsequently, in R. v. Illes, [2008] 3 S.C.R. 134, the Supreme Court re-affirmed the applicability of this legal standard in cases of non-disclosure by the Crown. Delivering the judgment of the majority of the court, LeBel and Fish JJ. summarized the applicable principles as follows, at para. 24-25, 27:

With respect to the fresh evidence not available to the defence at trial due to the Crown’s failure to disclose, a new trial is the appropriate remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms if the accused can show that his right to make full answer and defence was thereby violated. In order to discharge this burden, the accused can show either “that there is a reasonable possibility that the non-disclosure affected the outcome at trial” or that it affected “the overall fairness of the trial process” (R. v. Dixon, … emphasis in original)).

With respect to the first prong of the Dixon test, it is important to note that the issue here is not whether the undisclosed evidence would have made a difference to the trial outcome, but rather whether it could have made a difference. More precisely, the issue the appellate court must determine is whether there is a reasonable possibility that the additional evidence could have created a reasonable doubt in the jury’s mind. See R. v. Taillefer, [2003] 3 S.C.R. 307, at para. 82.

With respect to the second prong of the Dixon test, an appellant need only establish a reasonable possibility that the overall fairness of the trial process was impaired. This burden can be discharged by showing, for example, that the undisclosed evidence could have been used to impeach the credibility of a prosecution witness (see Taillefer, at para. 84), or could have assisted the defence in its pre-trial investigations and preparations, or in its tactical decisions at trial (see R. v. Skinner, [1998] 1 S.C.R. 298, at para. 12 (Cory J., for the Court)).

[30] Accordingly, in summary, it is apparent from these decisions that, in order to succeed on an appeal against conviction in having a new trial ordered, the accused must demonstrate that there is at least a “reasonable possibility” that the non-disclosure by the Crown could have affected: (1) the outcome of the trial; or (2) the overall fairness of the trial process.

B. The Governing Legal Test in the Present Case

Addressing Late Disclosure Issues at the Preliminary Inquiry

[31] It is important to appreciate the precise factual context for the application of the R. v. Dixon test. It is applicable where the accused has already been tried and convicted, and claims, on appeal, to be entitled to the remedy of a new trial due to the fact that the Crown had failed to make disclosure of certain items or information. The task of the appellate court in such circumstances, according to R. v. Dixon, is to try to assess the potential impact of the non-disclosure on the result of the trial and on the overall fairness of the trial. In that specific context, the Supreme Court of Canada struck the appropriate balance by articulating a standard which justified appellate interference with the verdict where the accused was able to show that there is a “reasonable possibility” that the non-disclosure could have affected the outcome of the trial or the overall fairness of the trial process.

[32] The R. v. Dixon standard cannot simply be excised from the factual context in which it was designed to operate, and transplanted, without modification, into other factual situations to deal with other types of disclosure problems, especially disclosure problems that arise at earlier points in the criminal process. For example, in the circumstances of the present case, the accused has not yet had his trial, so the issue is one of late disclosure as opposed to non-disclosure. Further, the accused is not seeking a new trial as a remedy, but rather seeks a stay of proceedings preventing a trial from ever taking place.

[33] Accordingly, in the factual context of the present case it makes little sense to inquire as to whether there is a reasonable possibility that the late disclosure by the Crown regarding the cell phone records “could have affected” the outcome of the trial or the overall fairness of the trial process. The trial has not yet taken place. There has not yet been an outcome. Therefore, the R. v. Dixon standard clearly requires at least some slight modification before it can properly address disclosure problems at an earlier stage of the criminal process, but which may still potentially have an impact on the pending trial.

[34] In my view, in order to establish that his ability to make full answer and defence at trial has been impaired by virtue of the tardy disclosure of the cell phone records at the preliminary inquiry, the accused must establish that there is a reasonable possibility that this late disclosure could affect either: (1) the outcome of the upcoming trial; or (2) the overall fairness of the trial process. This slight modification of the R. v. Dixon standard, however, really changes no more than the tense of the applicable legal standard.

[35] Revising the governing legal framework in this small way continues to focus the inquiry properly upon the potential impact of the late disclosure on the result and overall fairness of the pending trial proceedings. This should remain the critical focus for the resolution of late disclosure problems.

[36] It is important to appreciate, however, that disclosure is an ongoing and continuing process prior to trial. In practice, it is a rare case where, in a matter of any complexity, full and complete disclosure is available and provided to the accused immediately upon arrest. In most cases, disclosure is inevitably provided as part of an ongoing process, where the accused is permitted to discover all relevant aspects of the police investigation and the specific nature of the Crown’s case over a period of time. As noted by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771, providing disclosure to the accused is one of the express purposes of the “intake” phase of the criminal process. Indeed, the disclosure and discovery process continues up to and including the preliminary inquiry. One of the important recognized functions of the preliminary inquiry is to permit the accused to discover the Crown’s case. See: R. v. Skogman, [1984] 2 S.C.R. 93, at pp. 105-106; Re Regina and Arviv (1985), 51 O.R. (2d) 551 (C.A.) at p. 560. Tardy disclosure is, accordingly, invariably more easily remedied than non-disclosure.

[37] At the same time, however, revising the governing legal framework in this small way also appropriately recognizes that the trial proceedings, where the accused is ultimately permitted to make full answer and defence to the pending criminal allegations, have yet to take place. In such circumstances it only makes sense to alter the tense of the applicable standard to require the accused to establish a reasonable possibility that the late disclosure by the Crown “could” affect either the outcome of the upcoming trial, or the overall fairness of the trial process.

[38] The Crown argued that, in this late disclosure context, the legal threshold for finding a violation of s. 7 of the Charter of Rights should be raised to require the accused to demonstrate that there is a reasonable possibility that the late disclosure “will” affect either the outcome of the pending trial, or the overall fairness of the upcoming trial process. I am not inclined to alter this aspect of the R. v. Dixon standard.

[39] As already noted, in R. v. Illes, LeBel and Fish JJ. stated, at para. 25, that it was important to appreciate that the R. v. Dixon test did not inquire whether “the undisclosed evidence would have made a difference to the trial outcome, but rather whether it could have made a difference” [emphasis in original]. I see no reason to conclude that a different approach is required in the context of late disclosure in terms of the assessment of whether or not there has been a violation of s. 7 of the Charter. See also: R. v. Taillefer, [2003] 3 S.C.R. 307.

[40] The recent decision of the Supreme Court of Canada in R. v. Davey, 2012 SCC 75, supports this conclusion. In the factual context of an appeal by an accused seeking relief against undisclosed “jury vetting” by the Crown, the Supreme Court of Canada, at para. 52-54, expressly modified the R. v. Dixon standard in cases where the undisclosed information related to “the choice of the trier of fact.” Under this modified standard, the relevant inquiry is into whether, if the information had been disclosed, there is a reasonable possibility that the jury would have been differently constituted. In so holding, however, Karakatsanis J., delivering the judgment of the court, at para. 53, suggested that the R. v. Dixon standard should not be altered where the non-disclosure bears on the “merits of the case” for the prosecution or the defence. Given that the late disclosure of information in the present case clearly relates to the merits of this case, this aspect of the R. v. Dixon standard should not be modified. See also: R. v. Yumnu, 2012 SCC 73, at para. 75, 77; R. v. Emms, 2012 SCC 74, at para. 22, 29.

[41] Accordingly, I reject the Crown’s argument as to how the R. v. Dixon standard should be further modified in the late disclosure context. See also: R. v. Giroux, [2001] O.J. No. 5496 (S.C.J.) at para. 15.

[42] I am also fortified in this view by the fact that, if there is no reasonable possibility that the late disclosure could potentially affect the outcome of the pending trial or the overall fairness of the trial process, then it can be fairly concluded that the late disclosure by the Crown has not impaired in any way the accused’s right to make full answer and defence at trial. In such circumstances there is no need for any remedial judicial intervention. The accused will have the benefit of the inherently fair Canadian criminal trial process, and will only be going to trial after having received full and complete disclosure of the Crown’s case and all relevant information from the police investigation.

[43] Accordingly, in order to demonstrate a violation of his constitutional rights under s. 7 of the Charter of Rights, the accused must establish that his ability to make full answer and defence has been impaired by virtue of the tardy disclosure of the cell phone records at the preliminary inquiry. More specifically in this regard, the accused must establish that there is a reasonable possibility that this late disclosure could affect either: (1) the outcome of the upcoming trial; or (2) the overall fairness of the trial process.

C. Was There a Breach of Section 7 of the Charter of Rights?

1. Introduction

[44] As already noted, the arguments advanced by the accused in support of the alleged violation of s. 7 of the Charter in this case turn on how the events unfolded at the preliminary inquiry prior to disclosure of the accused’s cell phone records, and how his right to make full answer and defence at trial has been adversely effected by those events.

[45] More particularly, the accused contends that if the Crown had disclosed his cell phone records in a timely way, he might well have decided not to testify at all on the voluntariness voir dire at the preliminary inquiry. Accordingly, the late disclosure of the cell phone records provided the Crown with advance disclosure of his testimonial position regarding his version of those events, and a preliminary inquiry transcript that would be useful to the Crown in his cross-examine of the accused at trial if the accused gives any evidence inconsistent with this preliminary inquiry testimony.

[46] In the alternative, the accused argues that, if the Crown had made timely disclosure of his cell phone records, the accused would not have testified as he did, or at all, in relation to his activities and whereabouts prior to his arrest on October 1, 2009. According to the accused, this early testimonial disclosure of his alibi regarding the October 1, 2009 robberies unfairly puts the Crown in the advantageous position of being able to cross-examine the accused on his preliminary inquiry testimony if he changes his evidence at trial regarding his activities and whereabouts on October 1, 2009. It may also permit the Crown to prove the falsity of his evidence if he testifies at trial in accordance with his preliminary inquiry evidence in this regard.

[47] The accused argues that, in the result, he has demonstrated that there is at least a reasonable possibility that the Crown’s late disclosure of his cell phone records could affect either the outcome of the upcoming trial or the overall fairness of the trial process. I agree. In my view, the accused has met both of the alternative prongs of the modified R. v. Dixon standard, and has established an impairment of his right to make full answer and defence at trial in violation of s. 7 of the Charter of Rights. I reach this conclusion, however, for only one of the reasons offered by the accused.

2. Late Disclosure Had Impact on Defence Disclosure of Alibi Evidence

[48] I accept that, if the Crown had disclosed the accused’s cell phone records in a timely way, the accused would not likely have testified as he did on the voluntariness voir dire at the preliminary inquiry in disclosing his alibi for the October 1, 2009 robberies. Instead, after analyzing the evidentiary significance of his cell phone records, the accused would have either testified in a manner consistent with his cell phone records (after his memory had been refreshed by the cell phone records), or would not have provided any testimony at all as to his activities and whereabouts prior to his arrest on October 1, 2009. After all, his alibi testimony in relation to the two October 1, 2009 robberies was irrelevant to the voluntariness of his post-arrest statements. Defence counsel could easily have decided not to question the accused about his activities or whereabouts prior to his arrest on October 1, 2009, and object to any potential cross-examination by the Crown on that irrelevant topic.

[49] Accordingly, by its late disclosure of the accused’s cell phone records, the Crown has secured the advantage of having available for trial the preliminary inquiry testimony of the accused on the issue of his alibi for the October 1, 2009 robberies. The accused provided this testimony before the Crown disclosed the accused’s cell phone records. The accused was disadvantaged by this late disclosure of the cell phone records, as he was unable to measure the accuracy of his recollection of his whereabouts on October 1, 2009, and potentially have his memory refreshed in this regard by the cell phone records. Further, if the accused testifies at trial the Crown will be ready to: (1) prove the inaccuracy of the testimony of the accused as to his whereabouts on October 1, 2009 if he testifies in accordance with his preliminary inquiry testimony; or (2) cross-examine the accused on his preliminary inquiry testimony if he testifies at trial differently as to his whereabouts on October 1, 2009.

[50] I am satisfied that this evidentiary advantage to the Crown and coincident disadvantage to the accused, caused by the Crown’s late disclosure of the accused’s cell phone records, makes it reasonably possible that the late disclosure of the cell phone records could affect the outcome of the pending trial. If the accused reconsiders his alibi evidence, in light of the cell phone records and has his memory refreshed as to his whereabouts on October 1, 2009, and provides trial testimony different than his preliminary inquiry testimony in this regard, the Crown might be able to undermine his credibility as a witness by illustrating, through cross-examination on his earlier testimony, an important inconsistency between his versions of the events regarding his alibi for the October 1, 2009 robberies. Moreover, if the Crown was permitted to take unfair advantage of the accused in this way, and capitalize in an evidentiary way on its own failure to promptly disclose the accused’s cell phone records, this could adversely impact on the overall fairness of the trial process.

[51] The Crown fairly concedes this breach of the accused’s rights under s. 7 of the Charter, due to the fact that the accused might well not have led his alibi evidence regarding the October 1, 2009 robberies if the Crown had made more timely disclosure of the accused’s cell phone records.

[52] Therefore, for this reason I am satisfied that the accused has established an impairment of his right to make full answer and defence in breach of s. 7 of the Charter of Rights.

3. Late Disclosure Had No Impact on Strategic Decision That Accused Should Testify on the Voluntariness Voir Dire at the Preliminary Inquiry

[53] On the other hand, I have no doubt that, even if the accused’s cell phone records had been disclosed by the Crown in a timely fashion, the accused would still have been called as a witness on the voluntariness voir dire at the preliminary inquiry and would have testified exactly as he did in relation to how he was treated by the police on his arrest on October 1, 2009 and thereafter. Accordingly, the late disclosure of the cell phone records had no impact on the strategic decision made by the accused and his lawyer that the accused testify as a witness on the voluntariness voir dire contesting the admissibility of his post-arrest statements.

[54] The law is clear that, on the voir dire to determine the admissibility of the post-arrest statements of the accused, the Crown had the legal burden of establishing the voluntariness of those statements beyond a reasonable doubt. However, practically speaking, it is hard to imagine how there might have been any legitimate question raised as to the voluntariness of the accused’s post-arrest statements in the absence of the testimony of the accused. On the version of events provided by the testimony of the various police officers involved in the arrest and questioning of the accused, the post-arrests statements of the accused were provided voluntarily. In the absence of the testimony of the accused, there was simply no evidentiary basis to conclude otherwise.

[55] While it remained theoretically possible for the preliminary inquiry justice to have a “reasonable doubt” as to the voluntariness of the post-arrest statements of the accused based solely on the failure of the Crown to meet its burden of proof, the position of the accused became far stronger with his testimonial support. Accordingly, it is hardly surprising that the accused was called to testify as to the violent details of how his post-arrest statements were extracted from him by a series of beatings by the police.

[56] Moreover, I do not see any realistic or reasonable basis on which to conclude that this important strategic decision might have been otherwise if there had been timely disclosure of the accused’s cell phone records. Those records simply have no legal or logical relevance to the voluntariness of the post-arrest statements by the accused.

[57] Accordingly, regardless of the lateness of the disclosure of the cell phone records, the preliminary inquiry would have inevitably unfolded just as it did in relation to the testimony of the accused regarding the circumstances of his arrest and subsequent interrogation by the police, and all the violence that was allegedly employed by the police against him for the express purpose of forcing him to confess to the alleged crimes. In this regard, the accused took no strategic step that he would not otherwise have taken, and the Crown became possessed of no additional evidence or information that it would not otherwise have been privy, if the cell phone records had been disclosed in a timely way.

[58] In my opinion, the accused’s argument to the contrary is entirely speculative and without any evidentiary basis. In this regard, I note that that there is no affidavit or testimonial evidence from the accused or his lawyer that suggests or explains that, if the cell phone records had been disclosed in a timely way, this would have somehow changed the tactical decision that the accused testify on the voluntariness voir dire at the preliminary inquiry.

[59] Further, it is noteworthy that, by the time the accused began testifying on the voluntariness voir dire at his preliminary inquiry in May of 2011, he had already fully disclosed his version of the events following his arrest on October 1, 2009. More particularly, in November of 2010, the accused testified in criminal proceedings against his friend, Guleed Warsame, who was separately charged with the commission of many of these same robberies. More particularly, during the course of his testimony in this other matter, the accused testified as follows:

• The accused testified that, on his arrest in the underground parking lot, he was punched and kicked by the seven police officers that were involved in his arrest, even though he was fully cooperative with the police and did not resist his arrest.
• The accused testified that, at the police station, he requested but was denied medical attention for the physical injuries he suffered to his face as a result of these assaults by the police.
• The accused testified that, at the police station, he requested but was denied an opportunity to speak to a lawyer.
• The accused testified that, at the police station, he was interrogated for long periods of time, repeatedly violently assaulted and “beaten up” by approximately a half a dozen police officers, and ultimately forced to falsely confess to the alleged robberies on an audiotaped recording.
• The accused testified that due to this ongoing physical abuse from the police, he had to “make up” stories about how the robberies were committed, based on locations provided to him by the police.

[60] Accordingly, as the Crown was already aware of the details of the accused’s version of the events following his arrest on October 1, 2009, there was no apparent strategic reason not to provide this version of events again, on the voluntariness voir dire at his preliminary inquiry. Any potential element of surprise regarding his version of events had already been lost by virtue of his earlier testimony.

[61] Therefore, in my view, the testimony of the accused at the preliminary inquiry as to how his post-arrest statements were involuntarily extracted from him by the violence used by the police does not contribute to the violation s. 7 of the Charter of Rights in this case as a result of the tardy disclosure of the accused’s cell phone records.

D. What is the Appropriate and Just Remedy?

1. An Adjournment Will Not Remedy the Potential Prejudice

[62] The usual remedy for late disclosure is, of course, an order requiring the disclosure and an adjournment. There are some cases, however, where such a remedy will not effectively remove the prejudice potentially suffered by the accused caused by the late disclosure. This is an example of such a case. The accused has already been provided with the cell phone records, and an adjournment of the trial will be unhelpful to remedy what has already occurred. The potential prejudice to the accused will remain even after any adjournment.

2. Excluding the Alibi Evidence is an Appropriate and Just Remedy

[63] As I have already noted, if the accused testifies at trial and provides a different account of his activities and whereabouts on October 1, 2009 in the hours prior to his arrest, the Crown will be able to cross-examine him on his voir dire testimony at the preliminary inquiry for purposes of demonstrating the inconsistency in his testimony. Such cross-examination would be permitted as his earlier testimony at the preliminary inquiry was neither compelled nor incriminating. See: R. v. Nedelcu, 2012 SCC 59; Treat Canada Ltd. v. Leonidas, 2012 ONCA 748, at para. 35-39. This is, however, one of the kinds of prejudice to the accused that full and timely disclosure is designed to prevent. As Sopinka J. noted in R. v. Stinchcombe, at p. 8:

Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown's possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material.

[Emphasis added]

[64] In order to avoid this potentially significant prejudice to the accused and ensure that his trial is a fair one, the only appropriate and just remedy is one that addresses the Crown’s potential use of the accused’s preliminary inquiry testimony in relation to his alibi for the two October 1, 2009 robberies. In other words, the appropriate and just remedy is the exclusion of that evidence at the trial of this matter.

[65] The potential exclusion of evidence is normally addressed under s. 24(2) of the Charter. However, according to its own terms, s. 24(2) only applies where the evidence in question “was obtained in a manner” that infringed or denied any of the Charter rights of the accused. As the preliminary inquiry testimony of the accused as to his activities and whereabouts on October 1, 2009 in the hours prior to his arrest was not “obtained” by the state as a result of a breach of any Charter right possessed by the accused, the potential exclusion of this preliminary inquiry testimony can only be addressed under s. 24(1) of the Charter of Rights.

[66] In R. v. Bjelland, [2009] 2 S.C.R. 651, the Supreme Court of Canada held, at para. 24, that the exclusion of evidence under s. 24(1) of the Charter as a remedy for late disclosure is only an “appropriate and just” remedy in “exceptional cases” where: (1) the late disclosure renders the trial process unfair, and this unfairness cannot be remedied by means of an adjournment and a disclosure order; or (2) where the exclusion of the evidence is necessary to maintain the integrity of the justice system. Accordingly, the exclusion of evidence under s. 24(1) of the Charter is only legally available in cases where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system.

[67] Importantly, as Rothstein J. stated in delivering the judgment of the majority of the court in R. v. Bjelland, at para. 22, while the accused must always receive a fair trial, “the trial must be fair from both the perspective of the accused and of society more broadly.” This does not require the most advantageous trial possible from the perspective of the accused. Nor does it create a standard of perfection. Rather, a fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. See also: R. v. Harrer, [1995] 3 S.C.R. 562, at para. 45; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362. As the exclusion of evidence impacts on trial fairness from the perspective of society, in that it impairs the truth-seeking function of trials, where an appropriate remedy can be fashioned 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, excluding the evidence will not be appropriate and just under s. 24(1) of the Charter.

[68] In my view, the particular breach of s. 7 of the Charter in the circumstances of the present case meets this standard for the exclusion of evidence under s. 24(1) of the Charter. Any lesser remedy would deny procedural fairness to the accused at trial by permitting the Crown to rely on evidence that, reasonably viewed, might well not have been created but for the Crown’s late disclosure of the cell phone records. The prejudice that would be suffered by the accused in the absence of this remedy would be material, not trivial, in that the Crown would be able to make use of testimony from the accused secured after the irrevocable decision was made to testify at the preliminary inquiry without first having complete disclosure of the Crown’s case. In addition, this remedy impacts minimally on the truth-seeking function of the trial as it is unclear whether the testimony would have been created in the absence of the late disclosure by the Crown. Therefore, in my view, the exclusion of this evidence is the appropriate and just remedy for the late disclosure of the cell phone records in this case.

[69] The Crown fairly concedes that this is an appropriate and just remedy for the violation of the accused’s rights under s. 7 of the Charter, as it will fully repair the potential prejudice that might otherwise be suffered by the accused.

3. No Basis to Exclude Other Testimony of the Accused

[70] I have already concluded that the testimony of the accused at the preliminary inquiry as to how his post-arrest statements were violently and forcibly extracted from him by the police does not in any way contribute to the violation s. 7 of the Charter of Rights in this case as a result of the late disclosure of the accused’s cell phone records. The accused would inevitably have testified exactly as he did in any event. Accordingly, contrary to the argument of the accused, there is simply no proper legal basis to exclude that testimony of the accused at the trial of this matter. The only testimony that can be properly excluded is the voir dire testimony of the accused at his preliminary inquiry in relation to this activities and whereabouts prior to his arrest on October 1, 2009.

4. Staying the Proceedings is Not Justified

[71] While the accused sought the exclusion of evidence as an alternative remedy for the alleged breach of s. 7 of the Charter, his primary position was that the criminal proceedings against him should be stayed. In my view, however, this is not a case where any further remedy is necessary or appropriate. More particularly, this is not a case that justifies the extreme remedy of a judicial stay of proceedings.

[72] In R. v. O’Connor, [1995] 4 S.C.R. 411, the Supreme Court of Canada considered the potential remedy of staying proceedings against an accused as a result of non-disclosure. In this context, L’Heureux-Dubé J., speaking for the majority of the court on this issue, held, at para. 75, that a stay of proceedings will only be justified as a remedy under s. 24(1) of the Charter where: (1) the prejudice caused to the accused by the state misconduct “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.” L’Heureux-Dubé J. made it clear, at para. 77, that the “drastic” remedy of a stay of proceedings was only appropriate in “exceptional” and “extreme” situations, where it is simply not possible to otherwise “remedy through reasonable means the prejudice to the accused's right to make full answer and defence.” As L’Heureux-Dubé J. concluded, at para. 77 and 82, a stay of proceedings is a remedy of “last resort” to be employed only in the “clearest of cases” where “all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted,” or where “irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.” See also: R. v. Dixon, at para. 35.

5. Conclusion

[73] The accused has failed to demonstrate that this is one of those exceptional and extreme situations justifying the imposition of a stay of proceedings. Permitting the Crown to continue with the prosecution of this case, while excluding the accused’s preliminary inquiry evidence as to his asserted alibi for the October 1, 2009 robberies, notwithstanding the late disclosure of the accused’s cell phone records, would not cause irreparable prejudice to the accused or the integrity of the judicial system. In my view, the accused’s right to make full answer and defence at trial is fully and adequately protected by the exclusion of the accused’s preliminary inquiry testimony in relation to his activities and whereabouts prior to his arrest on October 1, 2009.

V. Conclusion

[74] Accordingly, the application by the accused to stay the criminal proceedings against him is dismissed. However, to remedy the violation of s. 7 of the Charter of Rights caused by the Crown’s late disclosure of the accused’s cell phone records, I order, pursuant to s. 24(1) of the Charter, the exclusion of the accused’s voir dire testimony at the preliminary inquiry regarding his activities and whereabouts prior to his arrest on October 1, 2009.

[75] For purposes of clarity, the accused may, if so advised, testify at trial in relation to this topic (i.e. his activities and whereabouts prior to his arrest on October 1, 2009), but the Crown may not use, for cross-examination purposes, the testimony of the accused at the preliminary inquiry regarding his activities and whereabouts prior to his arrest on October 1, 2009. The Crown may, however, otherwise appropriately use the remaining aspects of the accused’s preliminary inquiry voir dire testimony as the law allows.

Kenneth L. Campbell J.

Released: January 15, 2013