Superior Court of Justice - Ontario
Court File No.: 001/12
Date: 2013-06-05
Re: R. v. Kenneth Reese
Before: The Honourable Madam Justice P.C. Hennessy
Counsel:
Mr. Russell Wood, counsel for the Crown/Respondent
Mr. Chad Bracken, counsel for the Defence/Applicant
Heard: May 29, 2013
ENDORSEMENT ON MOTION for stay for breach of s. 7
[1] The applicant, Kenneth Reese alleges that negligent disclosure practices and disclosure refusals demonstrate bad faith and constitute an abuse of practice contrary to his s. 7 Charter rights. As a remedy, the applicant seeks a stay of the proceedings.
[2] Mr. Reese stands charged with the first degree murder of David Pannell. The matter was originally scheduled to be heard before a jury commencing April 2, 2013. The jury had been selected the week prior and outstanding motions had been heard and or resolved in the week prior.
Late Disclosure
[3] On the Easter weekend, immediately prior to the scheduled start date of the trial, while Crown counsel was reviewing the electronic brief (‘e-brief’) prepared by the investigating officer, she noticed a reference to a note book. She searched the e-brief for photos of the contents of the book, but they were not there. Crown counsel diligently tracked down the missing material over the weekend. It was discovered that certain material had not been transmitted to the Crown nor disclosed to the defence. That material included:
• A small piece of paper with the name Melissa and a phone number written on it;
• Photos of screens of two cell phones;
• Photos of the contents of the notebook. The contents included a ‘love note’ from Lyle Laffrenier to Della Nichol and some rough sketches of a floor plan.
[4] It is the defence position that the contents of the note book are helpful to their defence of a third party suspect.
[5] The subject material, including the notebook specifically identified, was listed at least twice in the disclosure initially provided to the defence. At no time was further disclosure requested by the defence with respect to the items.
[6] A number of police witnesses were called by the defence. Officer Desrochers testified that he entered the data from the notebook into the electronic system. He believed he had done what was necessary to ensure that this data came to the attention of the lead forensic officer, however, it did not. Officer Gray who was responsible for organizing all of the forensic evidence gathered from many sources expected the items to be provided to him physically, either on DVD, hard drive or hard copy. He did not realize that there were items on the data base that had not been provided to him physically. As a result, these items were not transferred to the file coordinator, nor further along in the system to the Crown or defence.
[7] After the Crown alerted the file coordinator on the Easter weekend, the material was quickly found within the forensic data base and provided to the defence.
[8] Both crown and defence made submissions concerning the late disclosure on the day scheduled for the start of trial. Counsel for the defence accepted the explanation provided by the police via the Crown. He characterized the lack of disclosure as inadvertent or even negligent. However, defence counsel indicated that he was ready to proceed so long as the witness schedule was modified. The Crown agreed to modify the order of calling certain witnesses. Ultimately there was a mistrial and the trial is now scheduled anew for September 2013.
[9] The defence submitted that they no longer have confidence in the ability of the Crown to provide full disclosure. They pointed to evidence from the police that they had not yet fully implemented any new tracking or checking mechanisms to ensure that this problem did not repeat. On the other hand, the defence did not lead any evidence that this issue had ever arisen before. The commanding officer of the unit testified that he knew of only one other incident of inadvertent non-disclosure in his 11 years in the unit.
[10] The Crown relied on the cases of R. v. O’Connor, 1995 51 (SCC), [1995] 4 SCR 411, R. v. Bjelland 2009 SCC 38, [2009] 2 S.C.R. 651, and R. v. Spackman 2012 ONCA 905, [2012] O.J. No. 6127, in support of their position that for the non-disclosure to amount to a s. 7 Charter violation, the onus is on the accused to establish that the lack of disclosure has, on a balance of probabilities, prejudiced or had an adverse effect on his ability to make full answer and defence. I agree that this proposition represents the state of the law. Late disclosure does not, in and of itself, constitute a violation of s. 7 of the Charter. There is no entitlement to a remedy without proof of a constitutional infringement.
[11] The defence did not assert any prejudice or adverse effect as a result of the late disclosure. I am satisfied that the defence has not proven any prejudice or negative impact on the ability to make full answer and defence. There was no evidence that the police practices regarding the disclosure in this case were oppressive or that they could in any way be characterized as an abuse of process.
[12] I find that there is no violation of s. 7 of the Charter arising from the non disclosure or what is now better described as the late disclosure.
Refusal to provide certain information regarding Lyle Laffrenier
[13] The defence theory in this case relies heavily on third party suspect evidence. Mr. Laffrenier is the alleged suspect to whom they point as the murderer of Mr. Pannell.
[14] The defence wrote to the Crown on May15, 2013 requesting any and all material relating to Mr. Lyle Laffrenier’s alleged criminal activities, in particular the ITO’s which may name Mr. Laffrenier as a drug trafficker. The Crown responded immediately asking for further particulars of the ITO’s. In the letter, the defence indicated that this information had come to their attention through happenstance. In testimony on the motion, the police officers stated that there is no data base through which one can search names mentioned in ITO’s. Nor did any of the officers questioned know of any ITO’s in which Mr. Laffrenier was named.
[15] This motion for a stay, based in part on the non-disclosure of the requested information, was brought on the same day as the original request was made. There was no evidence that this information exists or that the police on this investigation could find it. I accept the evidence that the investigating officers on this case are not aware of an ITO in an unrelated case naming Mr. Laffrenier as a drug trafficker and their evidence that they have no way of searching for such an ITO without further particulars. The crown submitted that there was evidence lead at the preliminary hearing that Mr. Laffrenier had sold his own prescription medication.
[16] The lack of response to the defence request for unspecified ITO’s is not in itself in any way an infringement of the defendant’s s. 7 Charter rights, nor does it add weight to the lack of disclosure issue outlined above to show a systemic problem with disclosure and bias of the police.
[17] The defence has not made out a case that there has been any violation of their s. 7 Charter right and therefore is not entitled to a remedy.
[18] The motion is dismissed.
_______________________________________
The Honourable Madam Justice P.C. Hennessy
Date: June 5, 2013