R. v Kum, 2016 ONSC 4314

Her Majesty the Queen v. Terrence Kum, 2016 ONSC 4314

Court File No.: CrimJ(F)2950/08 Date: 2016 06 30

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN F. Alibhai and K. Yeh, for the Crown

- and -

TERRENCE KUM A. Gold, for the Applicant Accused

Heard: May 9, 11, 2016

RULING ON ABUSE OF PROCESS APPLICATION

Justice Thomas A. Bielby

INTRODUCTION

1The accused herein has before the court an application for a stay of these proceedings, on the grounds that the continuation of this matter would represent an abuse of process.

2The accused is charged with trafficking cocaine, contrary to section 5(1) the Controlled Drugs and Substances Act, and having in his possession property resulting from the commission of an indictable offence, contrary to section 355(a) of the Criminal Code of Canada. The offences are said to have occurred between the 4th day of June, 2007, and the 18th day of June, 2007.

3The accused brings this application submitting that the continuation of this prosecution, in the face of historical and deliberate non-disclosure of relevant information, and the loss of evidentiary material arising from Crown and police conduct are such that it offends section 7 of the Charter of Rights. Section 7, guarantees everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

FACTS

4The preliminary hearing was conducted on October 1 and 2, 2008. The trial was held over nine days before a jury and on November 3, 2011, the accused was convicted of the offences. Sentencing took place on March 6, 2012, and the accused was ordered incarcerated for eight years.

5The conviction was successfully appealed. The Court of Appeal, on January 23, 2015, ordered a new trial, which was to commence on May 9, 2016 but was adjourned to March, 2017 to allow the argument of this application.

6At the preliminary hearing, the accused was represented by Edward Claxton. At trial the accused was represented by Rauvir Mann. Current counsel was retained at or after the time of sentencing.

7The primary focus of this application is in regard to the corruption investigation into the Toronto Airport Drug Enforcement Unit (TADEU), a unit made of members of the R.C.M.P., the Toronto Police, the Peel Police and the Canada Border Services Agency.

8In 2006, TADEU began an investigation into a group operating out of the Greater Toronto Area that utilized corrupt Pearson airport employees to import and export drugs. The investigation, called Project O’Cook, culminated in the arrest of a number of individuals, including the accused, in July, 2007.

9Two of the co-accused, Colin Reid and Philip Harding, pleaded guilty to the charges. Mr. Reid’s two statements to the police were not provided to the accused until April, 2016.

10R.C.M.P. constable Ross Adair was the Continuity and Exhibits officer in Project O’Cook. His evidence in relation to three cell phones allegedly seized from the accused and the information and phone numbers contained therein were, in the opinion of defence counsel, crucial to the Crown’s evidence.

11Officer Adair was not required to testify at the accused’s preliminary hearing or the trial. Rather an affidavit in his name was filed, presumably with the consent of defence counsel.

12Prior to the Project O’Cook investigation, in February, 2005, TADEU was asked to assist Project E-Plug, an investigation undertaken by the Border Integrity Unit of the R.C.M.P. in British Columbia. TADEU was tasked to monitor an expected delivery into Toronto of an air freight container that was believed to contain illicit drugs. TADEU was to provide surveillance on the crate when it arrived in Toronto, its movement, and on anyone who attended to retrieve the crate. The R.C.M.P. in British Columbia was interested in where and to whom the crate was ultimately destined.

13Six TADEU officers were tasked with this responsibility including Officer Adair, Sergeant John MacLeod and Officer Brian Boulton.

14The crate arrived in Toronto on February 22, 2005 and was followed to Hamilton, as requested. At that point, contrary to instructions, the decision was made to seize and open and search the crate, all without a warrant. A large amount of Methamphetamine was located in the crate. The drugs were removed and Sergeant MacLeod ordered the crate to be resealed so as to appear as if it had never been opened.

15Officer Boulton was then instructed to draft an, Information to Obtain, in an effort to secure a search warrant for the crate, without revealing the crate had, in fact, had already been opened. The other officers were instructed not to make any entries in their notebooks in regards to the unauthorized search of the crate.

16On February 23, 2005, Officer Boulton appeared before a Justice of the Peace and swore out the, Information to Obtain, which contained falsehoods and misrepresentations. The warrant was granted and the crate again opened and the drugs seized. The officers were then instructed to make their notes as if this second opening and search of the crate was the original.

17The officers’ fraudulent notes were submitted to the police in British Columbia and were used to obtain a Part VI Authorization. Ultimately three persons were arrested.

18When TADEU’s misconduct came to light, the Crown in British Columbia terminated their prosecution after determining that the deceit and related misconduct by members of TADEU was, egregious.

19In December, 2005, the R.C.M.P. authorities became aware of the misconduct and in 2006 commenced an investigation.

20In October, 2006, Sergeant MacLeod and Officer Boulton were charged with, obstruct justice. On October 19, 2006, a memo was distributed to all Crowns advising of the investigation into TADEU corruption.

21Officer Boulton ultimately entered a plea of guilty.

22Officer Adair testified at Sergeant MacLeod’s preliminary hearing and therein admitted that he falsified his notes and that he participated in the resealing of the crate after its initial opening. He also testified that he made a second set of accurate notes ten months after the incident but did not submit them for disclosure until two months later when he was interviewed by internal affairs.

23Officer Adair was not charged, suspended or disciplined in any manner for his role in Project E-Plug. During his testimony at the preliminary Officer Adair waffled between acknowledging what he did was wrong and saying he just followed the instructions from his superiors who told him, “it’s just the way things are done.”

24Officer Adair testified that he sought advice from Corporal Botelho who told him, “Don’t worry about it for the moment. Just keep your mouth shut, don’t talk about it with anyone. It will be addressed.”

25Other members of TADEU gave him much the same advice. He testified, Constable Wong and Sergeant Pupek told him something to the affect that, you can’t change the past and it doesn’t affect what’s going on now.

26Without a doubt the TADEU unit, at least the officers involved in Project E-Plug, including Officer Adair, acted in a very egregious and illegal manner.

27On June 22, 2009, the Crown’s office, via courier, sent a letter to all counsel acting for persons charged as a result of TADEU investigations, including Ed Claxton, at 2-27 Roy St. Kitchener, Ontario, counsel for the accused (tab 22, Volume 2, Crown’s Application Record).

28Mr. Claxton, who swore an affidavit in this application and was cross-examined thereon, acknowledged that, in June, 2009, that the above was his correct address. He was at the time a sole practitioner and did not employee any office staff. Mr. Claxton testified that he never saw the letter of June 22, 2009 and that he does not believe it was ever delivered to him. He testified the letter was not in the file he delivered to Mr. Mann.

29Mr. Claxton agreed that he did receive other Crown correspondence sent to him for the purposes of disclosure (tabs 5, 6,7,8,9, Volume 2, Crown’s Application Record), all of which were also delivered by courier.

30Mr. Claxton testified that Mr. Trotter, who maintained an office downstairs in the same building, would accept deliveries for him. Despite this acknowledgement, Mr. Claxton testified that he never authorized Mr. Trotter to take delivery of anything on his behalf.

31Mr. Claxton acknowledged that he never informed the Crown’s office of his lack of staff.

32The record shows that Mr. Trotter, on June 23, 2009, signed for a package/envelope addressed to Mr. Claxton, Suite 2, 27 Roy St. Kitchener (tab 12, volume 2, Crown’s Application Record).

33For the purposes of this application I find that the Crown letter of June 22, 2009 was delivered to Mr. Claxton. The Crown cannot be faulted for the manner of delivery and was right to presume that the letter was, in fact, delivered to counsel for the accused. Mr. Claxton utilized Mr. Trotter’s office to accept courier deliveries notwithstanding his conflicting comment that he never authorized Mr. Trotter to accept anything on his behalf.

34The letter of June 22, 2009 discloses that at Sergeant MacLeod’s preliminary hearing, Officer Adair admitted, under oath, that he falsified notes in relation to his role in Project E-Plug. In paragraph 2 of the letter, the following is stated, “Copies of the preliminary hearing transcript are being provided to you.” The particulars as to time, place and participants in the preliminary hearing are set out in the letter of June 22nd.

35The letter goes on to say that Adair was not charged or disciplined and states,

“For your convenience I am also attaching two decisions from the Superior Court of Justice which will provide some background on the Eplug investigation. Two officers were charged as a result of the Eplug investigation. Sgt. John MacLeod and Cst. Brian Boulton.”

36Neither the names nor citations of the cases were set out in the letter.

37The application record contains the excerpts of the preliminary hearing proceedings, containing the evidence of Officer Ross Adair (tab 13, Volume 2, Crown’s Application Record). Mr. Claxton admitted he must have received these excerpts because they were included in the file sent to Mr. Mann.

38There is an issue as to whether the transcript excerpts were included with the letter, regardless of whether the letter of June 22nd was received. I find that, in fact, the transcripts were included with the letter. While the wording, “Copies of the preliminary hearing transcript are being provided to you” is somewhat ambiguous as to whether they were included with the letter, the use of the word, “also”, contained in the phrase, “I am also attaching two decisions…” suggests the transcripts were included.

39In any event, as noted, counsel admittedly had the excerpts.

40In the face of this letter and his testimony regarding the falsification of notes contained in the preliminary hearing transcript excerpts, Officer Adair’s evidences and credibility was not challenged at the trial of the accused.

SUBMISSIONS OF COUNSEL

For The Accused

41Counsel for the accused argues that what the Crown failed to do was disclose the significant discredible information about TADEU and Officer Adair in regards to the E-Plug investigation.

42Counsel for the accused argues that the letter dated June 22, 2009 is only representative of minimal disclosure involving the alleged misconduct of TADEU. McNeil disclosure should have been made by the Crown with respect to all the Project O’Cook officers. It is submitted that was the obligation of the Crown and the defence was not obliged to ask.

43In the footnote of the June 22nd letter, the following is stated, “Cst. Adair is the only officer on Project O’Cook to have worked on Project E-Plug.” Counsel for the accused submits that such a statement is misleading. The conduct and credibility of the entire TADEU unit was in issue and the obligation of the Crown went well beyond the actions and testimony of Officer Adair. All relevant documentation in regards to the investigation of TADEU should have been disclosed and the letter of June 22, 2009 should have included,

1. The criminal charges faced by Sergeant MacLeod and Constable Boulton;
2. The status of the MacLeod trial;
3. The names of the other witnesses in the MacLeod matter and the substance of their testimony;
4. The remainder of the preliminary transcript (the hearing lasted 8 days):
5. The fact that the MacLeod charges were ultimately withdrawn on the basis of psychiatric evidence;
6. The police internal affairs investigation and whether other officers were the subject of any discipline for the role in E-Plug; and
7. Other judicial dicta in regards to TADEU.

44With respect to the full MacLeod preliminary transcript, when Mr. Gold was retained by the accused he attempted to order it but was told that since the preliminary hearing was held more than six years ago, the transcript was no longer available.

45Mr. Gold asked the Crown in March, 2016, if a copy of the entire MacLeod transcript could be provided but was advised they produced all of what was in their possession.

46Counsel for the accused submits that the failure to disclose the full transcript or make efforts to preserve it in a timely manner severely prejudices his client. It is submitted that the excerpts provided did not include the facts related to the charges against Sergeant MacLeod, how long the preliminary hearing lasted, and the fact that he was committed to stand trial.

47It is submitted by counsel for the accused that the Crown, in his argument before this court, is falling into the same pattern of error as his office did in 2009 in that it relies on the bare minimum of evidence and deems it sufficient without consideration of the broader relevance to the accused.

48As noted, Officer Boulton pleaded guilty on December 11, 2007, a year and a half before the June 22, 2009 disclosure. Further, as part of the submissions on the guilty plea an agreed statement of facts was filed. This document was not provided to the defence until April, 2016. This document sets out the egregious conduct of TADEU during Project E-Plug and the fact that as a result thereof, the Crown in British Columbia withdrew the case.

49In reviewing the factual background of this case, counsel for the accused relies on the decision of Langdon J., in R. v. Wilson [2008] O.J. No. 4118, a case involving a number of accused who were charged as a result of a TADEU investigation. An application was made by the defence for third party records. The defence was aware of the investigation of TADEU related to another matter (presumably E-Plug) and wanted access to those files to ascertain whether officers implicated in regards to misconduct were also part of their matter. The application succeeded.

50As noted by defence counsel, Langdon J. commented on TADEU and its member officers. He determined that,

1. TADEU members bent the rules with a view of advancing the prosecution.
2. The command came from the top.
3. The unit was dysfunctional and great pressure existed on individuals to go along with significant improprieties.
4. There is reason to believe that many members of the unit acquiesced.

51At paragraph 60 Langdon J. states, “What must be examined is the information that the other tribunals had, not the conclusions they reached.”

52From paragraph 61 I quote, “It is my view that any investigation into TADEU impropriety that is associated with the E-Plug prosecution has likely relevance to this prosecution.”

53From paragraph 70 I quote, “The Boulton plea proceedings, to the extent that they are known, give rise to a reasonable inference of possible endemic corruption amongst members of TADEU.”

54Langdon J. ordered the disclosure of the following:

1. The criminal and disciplinary investigations into Sergeant MacLeod and Constable Boulton including the files with specific reference to Adair, and the names of TADEU members mentioned by witnesses as having acquiesced or participated in improper police conduct;
2. Durham Regional Police Services investigation files into both Boulton and MacLeod;
3. Agreed statement of facts filed in R. V. Boulton; and
4. Transcripts of Boulton’s police interview.

55Counsel for the accused submits that the comments and order of Langdon J., provided a blue print to the Crown as to what should have been disclosed involving TADEU generally and its individual officers.

56At this point I want to reference the role of Corporal Botelho in the grounds for this application. The accused’s factum takes issue with the officer’s evidence given in the trial of this matter. Although Corporal Botelho was a member of TADEU, he was not a party to the unauthorized search of the crate, and became aware of the circumstances, after the fact.

57Officer Bothelho in October, 2005, asked Officer Adair if the crate was opened before the warrant was obtained. Adair admitted the truth and Adair testified at the preliminary that he was told by Bothelho that that was a serious miscarriage of justice and what he did was wrong. As noted above, Bothelho went on to say it would be addressed in the near future but for the moment not to speak about it.

58I find that the comments and arguments made in regards to his testimony not relevant in my considerations of this application. His credibility can be challenged at the new trial, if the stay is not granted and he can be cross-examined on his knowledge of the actions of TADEU.

The Respondent/Crown

59The Crown submits that the core of the applicant’s complaint relates to Officer Adair’s connection to E-Plug and that his office complied with its disclosure obligations. It is submitted that the letter of June 22, 2009, and the transcript excerpts put defence counsel on notice about E-Plug and Adair’s falsifying of his notes.

60The Crown submits that the above disclosure provided defence counsel with the information necessary to pursue these issues if he wished to do so. Counsel, prior to the trial, could have brought an O’Connor application.

61The Crown relies on the accused’s duty of due diligence as set out in R. v. Dixon, 1998 SCC 805, [1998] 1 S.C.R. 244, para. 55.

62The Crown submits that the failure to disclose or late disclosure is not grounds for a stay unless the defence can show actual prejudice to his right to make full answer and defence. Absent an infringement of the right to make full answer and defence, there is no breach of section 7 of the Charter of Rights (R. v. Spackman, 2012 ONCA 905, para. 137).

63The Crown submits that there is no evidence that TADEU did anything unethical or illegal in regards to the Project O’Cook investigation.

64Officer Adair was the only TADEU member involved in both the O’Cook and the E-Plug investigations.

65The Crown attorney also notes that to date, no O’Connor application has been commenced by the defence, submitting that the Crown office has disclosed the material in their possession.

66The Crown relies on R. v. McNeil, 2009 SCC 3, 2009 S.C.J. No. 3, paragraph 22 and submits the Crown’s duty to disclose pursuant to R. v. Stinchcombe, 1995 SCC 130, [1995] 1 S.C.R. 754 extends only to material in their possession or control. “The law cannot impose an obligation on the Crown to disclose material which it does not have or cannot obtain.”

67The Crown further relies on paragraph 15, which states,

“As I will explain, records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the “first party” disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. The Crown, in turn, must provide disclosure to the accused in accordance with its obligations under Stinchcombe. Production of disciplinary records and criminal investigations files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O’Connor regime for third party production.”

68The Crown submits that the disclosure of the Adair transcript excerpts and the letter of June 22, 2009 are in compliance with this principle and that anything beyond that, relating to TADEU, would be the subject matter of an O’Connor application.

69Further, the Boulton and MacLeod matters were prosecuted by the provincial Crown’s office and so any material relating to these prosecutions were not in the possession or control of the Federal Crown attorney’s office.

70The Crown also relies on paragraph 45 of the McNeil case which discusses the relevancy of police disciplinary records and states,

“The risk in this context is that disclosure, and by extension trial proceedings, may be sidetracked by irrelevant allegations or findings of police misconduct. Disclosure is intended to assist an accused in making full answer and defence or in prosecuting an appeal, not turn criminal trials into a conglomeration of satellite hearings on collateral matters.”

71The Crown submits that the disclosure sought by the defence in regards to E-Plug and the officers involved therein does not fall under the Stinchcombe duty to disclose.

72It is submitted that police discipline records are the subject matter of a third party records application pursuant to section 278.3 of the Criminal Code. (see R. v. Borne [2011] O. J. No. 1625, para. 12).

73The Crown submits that if there is any prejudice it can be remedied with the new trial.

74In regards to Langdon J.’s decision in R. v. Wilson [2008] O. J. No. 4118, the Crown points out that the matter was an O’Connor application and the learned judge did not opine that the disclosure in issue fell with the Stinchcombe obligation.

75In R. v. Brown [2009] O.J. No. 6459, Tulloch J., at paragraph 72, states,

“McNeil makes it clear that while the obligation to inquire into information in the possession of other state authorities is limited, it is not open to the Crown ignore potentially significant information that is brought to its attention: at para. 48:”

76The Crown submits its disclosure of the letter and the Adair transcript excerpts complies with this statement.

77It is the Crown’s position that the Crown office provided everything it was mandated to provide and that even if it did not provide everything, there is still an obligation of due diligence on the accused.

78It is submitted by the Crown that this matter is not the clearest of cases which would give rise to a stay of proceedings. The Court of Appeal’s order for a new trial provides the appropriate remedy if it is determined the Crown failed to disclose all relevant information.

THE LAW

79The law relating to a stay of proceedings was reviewed by the Supreme Court of Canada in, R. v. Babos, 2014 SCC 16, [2014] S.C.J. No. 16. At paragraph 1, Moldaver J. states,

“This appeal provides the Court with an opportunity to revisit the law of abuse of process as it relates to state conduct that impinges on the integrity of the justice system…”

80Commencing at paragraphs 30 I quote,

“A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] I S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

Nonetheless, this Court has recognized that there are rare occasions—“the clearest of cases”—when a stay of proceedings for an abuse of process will be warranted (R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: 1) where state conduct compromises the fairness of an accused’s trial (the main category); and 2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the residual category) (O’Connor, at para. 73). The test used to determine whether stay of proceedings is warranted is the same for both categories and consists of three requirements;

1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by it outcome” (Regan, at para. 54); 2.) There must be no alternative remedy capable of redressing the prejudice; and
2. Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid, at para. 57).”

81From paragraph 35 I quote,

“By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is so offensive to societal notions of fair play and decency and whether proceeding with a trial in the fact of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial—even a fair one—will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.”

82In regards to the residual category, the focus is on whether an alternate remedy, short of a stay of proceedings, will adequately dissociate the justice system form the impugned state conduct going forward (para. 39).

83If the residual category is in play, the balancing of interests that occurs at the third stage takes on added significance (para. 40).

84From R. v. Chaplin, 1995 SCC 126, [1994] S.C.J. 89, paragraph 21, I quote,

“Failure to comply with this initial and continuing obligation to disclose relevant and non-privileged evidence may result in a stay of proceedings or other redress against the Crown.” The Crown and police have a duty to act in the utmost good faith.

85Pursuant to R. v. Stinchcombe, 1991 SCC 45, [1991] 3 S.C.R. 326 the Crown is obligated to disclose all relevant material in its possession or control. This includes not only material it purposes to use at trial but also all evidence that may assist the accused, even if the Crown does not propose to adduce the evidence.

86As noted in the McNeil case, the production of disciplinary records and criminal investigation files that do not fall within first party disclosure is governed by the O’Connor regime for third party production.

87Earlier I made reference to the decision in R. v. Dixon. To expand on the point, from paragraph 55, I quote,

“It must be remembered that defence counsel is not entitled to assume at any point that all relevant information has been disclosed to the defence. Just as the Crown’s disclosure obligations are ongoing, and persist throughout the trial process, so too does defence counsel’s obligation to be duly diligent in pursuing disclosure. To do nothing in the face of knowledge that relevant information has not been disclosed will, at minimum, often justify a finding of lack of due diligence, and may, in certain circumstances, support an inference that counsel made a strategic decision not to pursue disclosure.”

ANALYSIS

88In my opinion this application falls within the residual category as set out in the Babos case.

89As noted, it is submitted by counsel for the accused that the conduct risks undermining the integrity of the judicial process that will be manifested, perpetuated or aggravated through the continuation of this prosecution, requiring the accused to go through another trial.

90I do not agree the conduct rises to such a level. Further, the Court of Appeal’s order for a new trial provides an alternate remedy.

91On balance, it is in the interests of justice to decide in favour of the truth seeking function and to have this case determined on its merits.

92Further disclosure has been requested by the accused’s current counsel and the Crown has provided some and continues in that effort. The only unavailable evidence is that of the full preliminary hearing transcripts which while unfortunate, is not enough to warrant a stay.

93I do agree with counsel for the accused that the Crown, prior to the first trial could have provided more “TADEU” disclosure than set out in the letter of June 22, 2009 and the transcript excerpts. The information related to the egregious actions of TADEU and it member officers in regards to Project E-Plug would be relevant to any court action resulting from a TADEU investigation.

94However, I do not think that this is one of the rare occasions, the clearest of cases, where a stay is warranted. I do not believe that this failure to make timely disclosure so offends societal values as to bring the administration of justice into disrepute.

95The misconduct which would be the subject of such disclosure was in regards to Project E-Plug and not in regards to Project O’Cook which resulted in the arrest of the accused.

96Counsel for the accused, in 2009, was in possession of the letter of June 22, 2009, and the transcript excerpts which would have put counsel on notice of the problems in regards to TADEU.

97The excerpts reveal that Addair was part of a team that opened a crate suspect of containing drugs without authorization. Further, the team members, including Addair, falsified their notes. Officer Addair, in his testimony, names the officers present when the crate was opened and stated that he did what he was told by senior officers.

98The letter of June 22, 2009 references Addair’s falsification of notes and contained two cases to provide background on the investigation of Project E-Plug.

99Counsel for the accused was provided with sufficient information to make further inquiries and demands for disclosure. Appropriate applications for disclosure could have been filed, including an O’Connor application.

100The full transcript of the full MacLeod preliminary hearing could have been ordered.

101The evidence and credibility of Officer Adair were not challenged despite the Crown’s disclosure of the preliminary hearing transcript excerpts. His evidence can be challenged in a new trial.

102Failure to take these steps suggest a lack of due diligence.

RULING

103The accused’s application for a stay of proceedings is dismissed.

Bielby J.