ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Oparah, 2015 ONSC 1585
COURT FILE NO.: Crim J(F) 1168/11
DATE: 20150318
B E T W E E N:
HER MAJESTY THE QUEEN
Martin Park, for the Crown
Respondent
- and -
CORNELIUS OPARAH
Leora Shemesh, for the Applicant
Applicant
HEARD: March 18, 2015
REASONS FOR RULING ON APPLICATION FOR A MISTRIAL
Justice Thomas A. Bielby
INTRODUCTION
[1] The accused, the applicant in this application for a mistrial, is charged with one count of importing heroin, one count of conspiring to import heroin, and two counts of possession of heroin for the purpose of trafficking.
[2] On November 4, 2010, the applicant was the subject of a controlled delivery “take down” by the RCMP. The police had intercepted two parcels containing machine parts in which heroin was hidden. The packages were to be delivered to a UPS store at 400 Steeles Avenue East, Unit 8, Brampton, Ontario.
[3] On November the 4th, the police allege that the applicant attended at the UPS store and picked up the two parcels. The applicant was followed to the parking lot of an apartment building at 220 Steeles Avenue West, Brampton, where he was arrested.
[4] It is alleged by the police that the applicant had a connection with apartment 1609 at 220 Steeles Avenue West, Brampton and, on November 5th, the RCMP exercised a search warrant at apartment 1609, and seized a number of items as wells as 15.5 grams of heroin.
[5] On February 24, 2015, at the commencement of the trial, the applicant re-elected to be tried by judge alone. After a pre-trial motion as to the voluntariness of the applicant’s statement, the trial commenced on February 26, 2015.
[6] On March 4, 2015, the applicant’s counsel advised the Court that she wished to make an application for a mistrial based on the Crown’s failure to make timely disclosure of evidence upon which the Crown was relying upon. The matter was adjourned to March 9, 2015 to allow the applicant and the Crown to file the necessary written submissions and prepare their arguments.
ARGUMENT AND FACTS
[7] In considering the application, there is another substantive issue of which I am cognizant and I am told will result in defence application for a stay of the proceedings.
[8] In investigating this matter the police sought and obtained a number of search warrants. In one of those search warrant applications the police sought a production order in regards to the UPS store and mailbox 129 in the UPS store. In an endorsement dated November 2, 2010, Justice W.J. Blacklock denied the request for an order for the production of records related to mailbox number 129.
[9] The owner of the UPS store is Magdy Salama and on the day of his testimony, the police, for the first time, obtained statement from him and provided it to defence counsel.
[10] It was Mr. Salama’s evidence that, when he was first approached by the police, he advised the police that he would not release any information without a “court order”. Thereafter, he was shown a search warrant and produced information and documentation to the police including documentation related to box 129.
[11] What is unclear is whether Mr. Salama, when presented with the warrant, was made aware of Blacklock J.’s box 129 exclusion.
[12] After reviewing Mr. Salama’s statement and after hearing his evidence, counsel for the applicant advised the Court that she would be bringing an application for a stay of proceedings alleging an abuse of power by the police when they obtained the production of documents related to box 129, in the face of Blacklock J.’s exclusion.
[13] Counsel for the applicant submits that it was after reading the statement of Mr. Salama and hearing his evidence, the decision was made to bring a stay application.
[14] In response the Crown argues that Mr. Salama’s evidence could have been ascertained by defence counsel through a review of the notes of the officers who had contact with Mr. Salama. The Crown further argues that the “assist” provisions of the warrant authorized the production of the documentation related to box 129.
[15] Returning to the issue of non-disclosure, as of March 4, 2015, the Crown had called 12 witnesses, 11 of which were police officers. The Crown has only two further officers to call as witnesses to complete the Crown’s case.
[16] A number of these officers were involved in the search of apartment 1609. Their intent was to find evidence connecting the applicant to the apartment to further the prosecution of one of the counts of possession for the purpose of trafficking.
[17] The officers testified as to their role in the search and what items they individually seized and brought back to the police detachment. These items were ultimately delivered to the exhibits’ officer.
[18] The items were placed in sealed police exhibit bags and at trial were entered as exhibits through the officer who initially seized them during the search of apartment 1609.
[19] When the exhibits were presented to the officers during their testimony, it was apparent that the bags had never been opened since they were initially sealed. The Crown Attorney candidly admitted that he was seeing some of this Crown evidence, including a great deal of documentation, for the first time as it was about to be tendered as evidence. In particular, some of the bags contained a number of various documents such as bank statements or cellphone statements many of which were in the applicant’s name and provided an address for the applicant.
[20] Similarly, these documents, which were part of the Crown’s case, were never disclosed to defence counsel until immediately before the evidence was to be tendered. In fact, the Crown sought a brief adjournment on at least two occasions to allow some time for himself and defence counsel to, for the first time, review the evidence to be tendered.
[21] Initially, defence counsel, while not happy, did not challenge the admission of some of these documents into evidence. However, her position changed on March 4, 2015. The Crown was about to call another police witness through which the contents of an accordion file, which contained further documents seized at apartment 1609, which amounted to over 450 pages, would be entered as evidence. At that point, counsel for the applicant objected and advised the court that this application for a mistrial was necessary.
[22] Counsel for the applicant submits that the Crown has failed the duty of full and timely disclosure and that a mistrial should be declared. It is submitted that tactical decisions were made in preparing the defence based on the Crown’s pre-trial disclosure. It is submitted that defence counsel’s cross examination of the Crown witnesses was based on the pre-trial disclosure.
[23] Prior to the trial counsel for the applicant had been provided with three bound briefs of photographs and two computer disks and counsel for the applicant submits that she assumed that this production was the evidence upon which the Crown was relying.
[24] Counsel for the applicant submits that she, prior to the trial, took reasonable steps to facilitate an efficient trial. She offered the re-election from judge and jury to judge alone and, together with the Crown, submitted an agreed statement of facts which included an admission as the continuity of the evidence seized at apartment 1609. She submits that it was in her client’s best interests to see this trial concluded as he has been on strict bail terms for over four years. However given the continued late disclosure a mistrial is required to allow the applicant to make full answer and defence.
[25] In response the Crown submits that defence counsel has a duty of due diligence and a duty to pursue disclosure and cannot raise disclosure issues at this stage. The Crown submits that these documents were listed in the Exhibit Report and, while some of the references lacked particularity, there was sufficient reference for the applicant to request their disclosure.
[26] The Crown submits that counsel for the applicant was either negligent in not seeking more pre-trial disclosure or made a tactical decision to sit back and raise the issue of lack of disclosure as the grounds for a mid-trial application for a mistrial.
[27] Magdy Salama, as noted above, was the only civilian witness and his attendance as a witness raises another issue for the applicant. It is submitted by the applicant, as noted above, that he did not know prior to the start of the trial that Mr. Salama was to be a Crown witness. The Crown had not advised defence counsel of his intent to call Mr. Salama and had never provided her with even a “will say” statement. In fact, on this point, it is submitted that the Crown was not sure as to what Mr. Salama would say. He had not been interviewed by the Crown nor had the Crown been provided with any statement made by Mr. Salama.
[28] Counsel for the Crown submits that the applicant should have known what Mr. Salama would say from the notes of the police officer. Further, counsel for the applicant had sent a letter to the Crown in January 2015 in which she wrote about the importance of the evidence of Mr. Salama and sought particulars such as whether or not Mr. Salama had a criminal record.
ANALYSIS
[29] The issues to be determined whether the Crown breached the obligation of full disclosure and, if so, what is the appropriate remedy.
[30] Counsel would appear to be in agreement that a mistrial is appropriate where there is a real danger of prejudice to the applicant’s right to a fair trial (R. v. Burke 2002 SCC 55, [2002] 2 S.C.R. 857, para. 74).
[31] Counsel for the applicant relies on R. v. Dixon 1998 CanLII 805 (SCC), 1988 122 C.C.C. (3ed) 1, in which it was stated that if counsel can show that undisclosed information could have been used in making full answer and defence, the Charter right to disclosure would be impaired. The applicant has the burden, on a balance of probabilities, to prove the lack of disclosure impaired the applicant’s ability to meet the case of the Crown.
[32] The Crown has a duty to disclose all relevant material and the materials it proposes to use at trial as well as evidence the Crown may be aware of that would help an accused (R. v. Stinchcombe [1991] 3 S.C.R. ).
[33] The Crown submits that the applicant had a duty to seek out disclosure of material she knows exists. The Crown relies on R. v. Dixon and R. v. Stitchcombe for the principle that defence counsel must exercise due diligence in regards to disclosure. Defence counsel may not remain passive.
[34] The Crown submits that the Exhibit Report and the notes of the officers, all of which were provided to the applicant, set out sufficient disclosure to allow counsel for the applicant to determine what she wishes to have produced and provided to her had she exercised due diligence.
[35] The Crown relies on R. v. Bramwell 1996 CanLII 352 (BC CA), [1996] B.C.J. No. 503, at para. 33 for the principle, “Further, where, as here, defence counsel makes a tactical decision not to pursue disclosure of certain documents, the court will generally be unsympathetic to a plea that full disclosure of those documents was not made.”
[36] In the Exhibit Report relied on by the Crown, there are various levels of particularity provided. Item 63 notes “Various phone bill, had written notes.” Item 75 notes, “various receipts” and then goes on to refer to examples. Item 89 notes, “Various banking documents.”
[37] Item 81, which precipitated the application, reads, “Accordion file folder containing various business and misc. documents.” From this file came the over 450 pages of documents to be entered as evidence through the police officer who seized them.
[38] In her application factum, counsel for the applicant refers to the Public Services of Canada website and the reference therein to the strict principles associated to the Crown’s obligation to disclose. It refers to Crown counsel disclosing information whether or not a request has been made.
[39] The policy also refers to documentary evidence and states that:
Where reasonably capable of reproduction, copies of (or access to) all documents, photographs, audio or video recording or anything other than a statement of a person should be provided whether or not they are intended to be relied upon by the Crown.
[40] The documents in issue were capable of being photocopied. In fact, the 450 pages in issue were photocopied by the Crown over a lunch hour.
[41] In his argument in response to this application, the Crown attorney stated that he has never denied that the Crown should have provided copies of documents. They should have been provided and the Crown acknowledges that some of the blame lies with the Crown.
[42] The Crown attorney goes on to say, however, that some part of the blame lies with counsel for the applicant in not exercising due diligence or in making a tactical decision to raise the non-disclosure issue mid-trial.
[43] I find that the Exhibit Report was not sufficiently particularized in regards to some of the documents and especially the 450 pages from the accordion file. From the documents entered as exhibits, it is clear that the Crown is relying on the documents to connect the applicant to Apartment 1609. The relevance of the documents is determined by the name and address of the documents and those details were not readily available in the Exhibit Report. Without even considering the documents already tendered in evidence, despite their late production, to present to defence counsel, 450 pages of documents, immediately before the calling of the witness, through which these documents would be tendered as evidence, is completely unreasonable and amounts to a failure to disclose.
[44] The Crown, prior to trial, should have, with reasonable notice, provided copies of all documents on which the Crown relies, and which the Crown intended to enter into evidence. Defence counsel is entitled to time to review such evidence with her client.
[45] I am not prepared to find that counsel for the applicant made a tactical decision not to seek disclosure prior to trial, for the purposes of presenting a non-disclosure application, mid-trial. There is no evidence counsel was aware of the volume and nature of the documentation the Crown sought to introduce.
[46] Assuming, for argument’s sake, that defence counsel failed to exercise due diligence, the Court is nevertheless required to consider the right of the applicant himself to make full answer and defence.
[47] The fact is the Crown attorney, in not reviewing the documentation prior to the calling of the witnesses, did not know upon which documents he was going to rely. It seems inequitable for the Crown to argue that counsel for the applicant failed to exercise due diligence when he himself did not exercise due diligence by failing to review the documents in issue prior to trial.
[48] In regards to Mr. Salama, the Crown ought to have obtained a statement from him prior to trial and disclosed the statement to the applicant. His evidence was to be relied upon by the Crown.
[49] Given all of the above, I find that the Crown has failed its duty to disclose.
REMEDY
[50] As to the appropriate remedy, and as noted above, the Crown has already led the evidence of 12 of its 14 witnesses. Some of the evidence in issue has been admitted as exhibits. Evidence acquired from Mr. Salama in regards to box 129 has been admitted.
[51] An adjournment is one of the remedies available. If this remedy is utilized, and, depending on the results of the applicant’s anticipated Charter application, certain evidence may be excluded. Further, many of the witnesses called would have to be recalled. While this is proceeding in front of me alone, without a jury, there is the potential of the perception of prejudice if this matter continues before me and I am required to disregard evidence already received.
[52] I accept as reasonable the argument of defence counsel that she readied her defence on the disclosure made before trial.
[53] I find that the trial is too far along to consider an adjournment to allow time for proper disclosure and a hearing of Charter applications.
[54] I believe that the only viable option at this stage is to declare a mistrial. The Crown can properly disclose all the evidence they wish to rely on in an organized way and the applicant can then bring whatever further application is deemed appropriate. A new trial can then proceed and, whether by adjournment or mistrial, witnesses will have to be recalled.
[55] Without a mistrial, there is a real danger of prejudice to the applicant which necessitates a mistrial.
[56] Further, there is less prejudice to the Crown in declaring a mistrial then would be to the applicant in exercising the remedy of an adjournment. Either way, as noted, many of the Crown witnesses will be required to re-attend. The police witnesses have their notebooks to refresh their memories and Mr. Salama can review his transcript.
[57] A mistrial is declared.
Justice Thomas A. Bielby
Released: March 18, 2015
COURT FILE NO.: Crim J(F) 1168/11
DATE: 20150318
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
CORNELIUS OPARAH
Applicant
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
Released: March 18, 2015