The Application

[1] This is the second part of the pre-trial application brought by Christopher Stewart (“the Applicant”). The Applicant is charged with possession of cocaine for the purpose of trafficking under the Controlled Drugs and Substances Act (“CDSA”).

[2] This Applicant seeks a stay of the charges under s. 24(1) of the Canadian Charter of Rights and Freedoms (the “Charter”). The Applicant contends that his right to a fair trial has been denied as a result of the late, incomplete, and inadequate disclosure afforded by the Crown, and that this is an infringement of his rights as set out in s. 7 of the Charter.

[3] Moreover, the Applicant contends that the conduct of the Crown amounts to an abuse of process, calling for judicial sanction by way of a stay of proceedings under the test set out by the Supreme Court of Canada in R. v. Babos, 2014 SCC 16, [2014] S.C.J. No. 16.

The Entitlement to Disclosure

[4] The entitlement of an accused person to production either from the Crown or third parties is a constitutional right: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, and R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. A breach of this right entitles the accused person to a remedy under s. 24(1), ranging from one or several adjournments to a stay of proceedings.

Previous Adjudication by the Court

[5] On January 29, 2015, I dismissed the Applicant’s application for an order excluding evidence for alleged infringements of his rights under sections 8 and 9 of the Charter. The reasons for the dismissal included the following:

I found that the affiant of the I.T.Os (DC Chambers) had made full, frank and fair disclosure;
I found that the issuing justice could have granted the tracking warrant dated July 17, 2012;
I found that the evidence of the affiant and sub-affiant was reliable;
I found that the notes taken and disclosed by the affiant and sub-affiant were entirely adequate and sufficiently detailed;
I accepted that the redacted portions of the notes and ITOs were intended to protect informant privilege;
I was not prepared to speculate that a document that might have been considered by the affiant but not included in the I.T.O. would be relevant to the issue of reasonable suspicion; and
I accepted DC Chambers’ explanation for his initial denial that he had copies of the source documentation.

[6] I would apply my findings on the first part of this application to the part presently before me.

The Applicant’s Position

[7] The Applicant contends that there were three categories of inadequate or missing disclosure:

(i) Documents reviewed by the affiant DC Chambers that he deemed not relevant and therefore did not maintain in the investigation file;

(ii) Documents that DC Chambers may have placed in the electronic investigation file that he was never asked by the Crown to disclose because they were not referred to in the I.T.O.; and,

(iii) Documents that should have been maintained in the electronic investigation file (Exhibits 3B and 3C) but were not.

[8] The Applicant asks the court to conclude that there is a portion of the investigation file that is either missing or has not been disclosed. We must assume that what has gone missing is likely relevant because the filter used by DC Chambers to determine what was relevant was clearly flawed. This is best exemplified by the removal of clearly relevant CPIC documentation from the electronic file. Moreover, the officer cannot state that what he did place in the electronic file is still present there.

[9] Trial fairness requires that the accused be able to access all relevant information. There is no difference between disclosure of information used in support of the I.T.O. and the requirement of disclosure in general; it is all substantive. The court has not yet decided the question of whether there has been full, fair and frank disclosure of the entire investigation file. The electronic file of the Crown should have been turned over in its entirety subject to informant privilege. The Crown’s failure to reveal that it maintained an electronic file before the existence of that file was divulged during the cross-examination of the affiant has served to handicap the Applicant’s ability to meet the case against him.

[10] Moreover, DC Chambers’ approach to the investigation was flawed by tunnel vision. He failed to include the known alias of the Applicant as “Junior” in his I.T.O. He did not see the importance of that information. The Applicant was the person of interest from the outset; to the extent that any piece of information detracted from that suspicion or pointed to some other person else, that information was discarded and omitted from the I.T.O put before the issuing justice.

[11] Finally, the Crown’s statement on October 9, 2014 that DC Chambers did not have copies of source documentation was patently false. Taken together with the tardiness and incompleteness of the disclosure, the failure to advise the Applicant of the electronic investigation file and the content of the Crown’s response to the Application itself, the overall conduct by the Crown shows a marked disregard for the importance of the disclosure process and for the integrity of the judicial system. This type of conduct of the Crown is deserving of a high form of sanction: a stay of proceedings. There is no other remedy available at this stage to correct the abuse or to allay the prejudice.

The Crown’s Position

[12] The Crown argues that my previous findings on this application are dispositive of the issue of whether there has been full, fair and frank disclosure. Regardless, there is no basis upon which to conclude that there is any missing or lost documentation. The Applicant has failed to identify what documents might be missing, what relevance they might hold, and how he has been prejudiced in his ability to make full answer and defence. The case law cited by the Applicant involves situations where state controlled actors destroyed or lost real, tangible and identifiable evidence. The court is not in a position to speculate on what may be missing; it is not appropriate or even possible for it to adjudicate on relevance in such a void.

[13] There has been no abuse of process. DC Chambers reasonably believed that the Applicant was a person of interest from the confidential source information. In the I.T.O.s at paragraphs 61(g) and 60(g) respectively, the affiant clearly draws the attention of the issuing justice to the possibility that Jason Mascoe is the “Andre” referred to by the confidential informant.

[14] Disclosure may have been late, but of an adjournment of the trial was agreed to by the Crown as a means of allaying any potential prejudice to the Applicant. The Crown has provided full disclosure. The Crown has also afforded the Applicant an opportunity for an open box review in order that he may be satisfied in that regard. That offer was not taken up. Even if there was some shortcoming in the disclosure, this is not one of the rarest of cases where a stay would be the appropriate remedy. The requirements for such a stay as contemplated in R. v. Babos have not been made out.

The History of Disclosure

[15] Exhibit 1 on the s. 24(1) application is a compilation of correspondence between the Applicant and the Crown regarding disclosure, among other things. It reveals that Crown disclosure began in the fall of 2012 and continued on past the preliminary inquiry in March 2013 until it hit what can best be described as an impasse in the summer and early fall of 2014.

[16] On July 4, 2014, counsel for the Applicant made a request for “…copies of all computer printouts of search results obtained relating to Christopher Stewart, conducted by Detective Constable Chambers or any other police officer in the preparation of the July 12th and 17th I.T.O.s”. That request was repeated on August 1, 2014. On August 12, 2014, Crown counsel replied that, “….our office has made a request for copies of the computer printouts of search results obtained relating to Christopher Stewart conducted by DC Chambers #3170, or any other police officer, in preparation of the July 12 & 17, 2012 information to Obtain.”

[17] Crown counsel made a request to DC Chambers for the above documents. DC Chambers advised Crown counsel that he did not keep original copies. On October 9, 2014, Crown counsel then advised counsel for the Applicant that DC Chambers did not have copies of the source documents used in preparation of the I.T.O.s. After the Stay of Proceedings Application was filed on October 14, 2014, the Crown had DC Chambers reproduce the remaining source documents used in support of the I.T.O.s. This was in addition to the previously disclosed surveillance information, which formed the majority of the content of the I.T.O.s.

[18] On October 17, 2014, the Crown provided 16 further items of disclosure and advised that DC Chambers was working on obtaining copies of the remaining source documents used in support of his I.T.O.s. On October 20, 2014, the parties attended before the court at Oshawa to seek an adjournment of both the trial and the pre-trial applications on the basis that further disclosure was ongoing.

[19] On October 22, 2014, the Applicant’s counsel requested further disclosure pertaining to when DC Connolly first possessed the Applicant’s photograph, when that photograph was circulated, and to which police officers. The Crown provided a response to that request on October 27, 2014, indicating that DC Connolly did not recall when he first possessed the photograph of the Applicant and did not know if the photograph was circulated to any other officers.

[20] A further request for disclosure made on November 17, 2014 pertained to details of the actual photograph of Lawrence Mascoe presented to a confidential informant, including any markings made on the page. On November 19, 2014, the Crown conveyed the reply it received from DC Connolly that the photo disclosed was an exact replica of the photo shown to the CHS.

Analysis

[21] I am unable to find that there are any lost or missing documents. As stated in my reasons on the previous application, I accepted the evidence of DC Chambers as reliable. He could think of nothing that was omitted from the I.T.O. that would have been relevant to the determination to be made by the issuing justice. I again accept his evidence that all source documents relied upon in support of the I.T.O. have been disclosed.

[22] I am not prepared to speculate that some undetermined document might serve to detract from the I.T.O. or provide any measure of a defence to the case to be met. I have considered: the admission by DC Chambers that every minute detail he reviewed in preparing the I.T.O. might not have been disclosed; the timing of disclosure and the manner in which it was carried out; and the absence of the CPIC sheet (Exhibit 3B) containing the alias of “Junior” for the Applicant from the electronic file. I am unable to conclude that any relevant document has gone missing or has been withheld. I agree with the Crown that to do so would amount to rank speculation.

[23] Merely raising the spectre of a missing document is insufficient to ground a finding that there is any lost evidence. I am not persuaded that DC Chambers’ failure to note what he accessed but did not retain in the investigative file can serve to establish that something of relevance has been lost, destroyed or is missing.

[24] I am reinforced in my finding by the utter lack of specificity offered by the Applicant as to what the missing items might be and why they might be relevant. I am mindful that it would be a nearly impossible task for an accused to demonstrate the relevance of a document that he or she has not seen; however, this reality does not change the fact that the evidence must first establish that a document is missing or has not been disclosed. On the evidence before me, I am not persuaded that there is any missing or any undisclosed document. That being the case, there can be no prejudice to the Applicant’s ability to make a full answer and defence to the charges.

[25] I would distinguish the case of R. v. Forster (2005), 2005 SKCA 107, 201 CCC (3d) 290, [2005] S.J. No. 529 (C.A.). In that case, the affiant made observations, which were recorded on either his hands or on scrap paper and which were ultimately recorded on a disc. The notes were then edited. After the search warrant had been executed, the affiant purposely destroyed the disc containing evidence relied upon in the preparation of the I.T.O.. The affiant also destroyed a portion of his original notes.

[26] I would also distinguish the cases of R. v. Carosella, 1997 CanLII 402 (SCC), [1997] S.C.J. No. 12 and R. v. La, 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97, [1997] S.C.J. No. 30 (S.C.C.). In the former case, a state actor (a social worker) shred the notes of her interview with the complainant. That social worker had no recollection of the contents of her notes. In the latter case, a tape containing a police interview of the complainant in a sexual assault case had been lost by police.

[27] In each of these cases, there were tangible and corporeal pieces of evidence that had either been lost or destroyed by state actors. There was a basis upon which the court could consider relevance and prejudice. There was a basis upon which the court could engage in an assessment of whether the state actor had acted reasonably or negligently, or indeed with mal fides. In the case at bar, there is nothing concrete or even conceivable. The court is entirely unable to engage in any analysis into what is essentially a void. My finding that there is no document that has been lost or undisclosed not only obviates the need to embark on such analyses; it renders such a task impossible.

Late Disclosure

[28] I find that there was some measure of late disclosure by the Crown. I find that this was the result of a misapprehension of what precisely was being sought as well as a degree of tardiness and misunderstanding on the part of DC Chambers in September and October 2014. However, I am unable to find any attempt on the part of the Crown to mislead, delay or frustrate the disclosure process. While the Crown and the police are indivisible in these matters, it is not unexpected or unreasonable for the Crown to pass along requests for disclosure directly to the police who handled the investigation.

[29] The Crown began disclosure back in October 2012 and continued on throughout much of 2013. The requests for disclosure understandably took on a greater urgency as the October 2014 trial date grew near. Counsel for the Applicant chose to imbue some of his requests for disclosure with argument and a strenuous statement of position. He was entitled to do so; however, simply stating a position, suggesting that the opposite party is conducting itself inappropriately or levelling accusations of wrongdoing against that party does not entail that there is any substance to the statement maker’s position. The issue here is the timeliness and adequacy of Crown disclosure. I find that the Crown has disclosed all relevant source documentation and information used in support of the I.T.O. and has disclosed any items in the investigation file not protected by informant privilege.

[30] The Applicant has failed to articulate any irreparable harm or actual prejudice suffered as a result of the late disclosure. Instances of late or inadequate disclosure can normally be remedied by a production order or an adjournment of the trial: see R. v. Bjelland, 2009 SCC 38, 194 C.R.R. (2d) 148, [2009] 2 S.C.R. 651 (S.C.C.). In the case at bar, the Applicant obtained an adjournment from the original October 2014 trial date. Further disclosure soon followed.

[31] In my view, there is nothing irregular in the Crown reviewing disclosure in an attempt to alleviate the assertion of prejudice made out in a Charter application. The Crown invited the Applicant’s counsel to attend at the Crown agent’s office to review those documents not protected by informant privilege. In addition, the Applicant was granted rights of cross-examination of both the affiant and the sub-affiant. The Applicant has failed to establish any actual prejudice to his right to make full answer and defence to the charges against him. Similarly, the Applicant has failed to establish any trial unfairness as a result either of the late disclosure or the discovery during cross-examination of the affiant that an electronic investigative file was maintained which contained the items that were previously disclosed.

[32] Because I have found that nothing of relevance was lost, destroyed or went missing, I do not need to embark on any analysis about whether there is a reasonable explanation for the loss or destruction of evidence.

Abuse of Process

[33] In R. v. Babos, the Court affirmed that a stay of proceedings for abuse of process will be warranted only in the clearest of cases. Such cases fall into two categories: the first, where state conduct compromises the fairness of an accused’s trial; the second, where state conduct creates no threat to the trial fairness but risks undermining the integrity of the judicial process. I am unable to find anything amounting to abuse of process by the Crown either in its late disclosure, in the manner in which disclosure was effected, in the conduct of the investigation, or in what was set out in the I.T.O.s.

[34] In the case before me there is no evidence of any trial unfairness. I find that the Applicant enjoyed adequate disclosure by the time the pre-trial applications in this matter were heard. The Crown agreed to an adjournment of the trial in October 2014 so that the disclosure might be better addressed. On October 19, 2014, the Applicant was invited to review the entire non-privileged file of the Crown to assure himself that disclosure had been complete. The Applicant was afforded the right to cross-examine both the affiant and the sub-affiant on the I.T.O.s; that evidence formed part of the record for the purposes of pre-trial applications. There is simply no evidence to support a finding that the trial or any aspect of it was unfair.

[35] Nor am I able to find any conduct on the part of the Crown that could serve to undermine the integrity of the judicial process. I find that DC Chambers reasonably believed the Applicant to be a person of interest from the confidential informant information received. There is no basis on which to conclude that he was guilty of tunnel vision or that he ignored or discarded any relevant information that would serve to exonerate that person of interest.

[36] The misunderstanding as to what the Applicant was seeking in disclosure was ultimately resolved and the potential prejudice to the Applicant in proceeding through either the pre-trial applications or to trial itself without adequate disclosure did not materialize. There is simply no evidence that any relevant documentation was purposefully or even inadvertently withheld or that the Crown subverted the disclosure process in any way. Indeed, the Crown was alive to the prejudice allegations in the application and acceded to an adjournment request in order that those allegations could be addressed. Again, the Crown offered the Applicant an open box comparison so that he could satisfy himself that he had everything that the Crown had. At worst, the original Crown reply that DC Chambers did not have copies of the source documents was unduly hasty and perhaps unthinking; in my view, there is nothing in the conduct of the Crown that would serve to undermine the integrity of the judicial process.

Disposition

[37] I find there has been no infringement of the Applicant’s section 7 Charter rights. I find there to have been no abuse of process by the Crown. That being the case, there is no remedy available to the Applicant under s. 24(1).

[38] The Application under s. 7 and s. 24(1) of the Charter is therefore dismissed.

J.R. McCARTHY, J.

Released: June 25, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.

R. v. Stewart, 2015 ONSC 3313

Case Summary

The Application

The Entitlement to Disclosure

Previous Adjudication by the Court

The Applicant’s Position

The Crown’s Position

The History of Disclosure

Analysis

Late Disclosure

Abuse of Process

Disposition

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 4