Court File and Parties

COURT FILE NO.: 13822/15 DATE: 2016-08-09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – BRIAN CLABBY Defendant

Counsel: D. Slessor, for the Crown E. Rolfe, for the Defendant

HEARD: June 14, 21, 22, 23, 24, 28, 29, 30 & August 8, 2016

Justice B.A. Glass

Application for an Order Staying the Prosecution of Charges of Possession of Child Pornography, Accessing Child Pornography and Possession of a Firearm Not Being the Holder of a Licence to Possess the Same

[1] On November 26, 2013, the OPP executed a search warrant in the City of Oshawa, in the Regional Municipality of Durham with respect to the charges related to child pornography.

[2] The Defendant was arrested following the location of evidence in support of the charges.

[3] He was released on bail, but subsequently that bail order was cancelled and Mr. Clabby was taken into custody. That change in custody occurred in January 2015. He has remained in custody since.

[4] Since his arrest, disclosure of evidence has been conducted by the OPP and the Crown Law Office.

[5] During the pre-trial motions, Mr. Rolfe asked questions of Detective Constable Gibbons about information to which she was making reference and in particular wanted to know if she was relying on material that had been disclosed to the Defence. Detective Constable Gibbons advised counsel that he did not have all that she was referencing. Some had been held back because the FBI had requested that the Canadian police services do so since there was an ongoing investigation internationally. Along the way, the FBI had released a restriction on the Canadian police services so that the information could be disclosed.

[6] Some of the former restricted information was not provided to the Defence even though it could have been.

[7] Detective Constable Gibbons testified at the voir dire that she had provided to the Crown a copy of this extra material to which she was now referencing and that the Crown had told her that he was not releasing this to the Defence counsel.

[8] Mr. Slessor advised the court that the package of material to which Detective Constable Gibbons referred had been given to him in a sealed envelope which he had not opened so that he did not know what was in it. He did not agree that he made a deliberate decision to hide this information from the Defence.

[9] On June 13, 2016, Mr. Rolfe received more disclosure information after which he advised the Crown and the court that he would be moving to stay the whole process and to prevent Mr. Slessor from participating in the argument because he might be a witness.

[10] The Crown accepts that there is a disclosure failure, but his position is that it does not merit a stay of proceedings.

Issues

[11] Is there a failure to disclose information to the Defence?

[12] If there is found to be a disclosure failure, what is the remedy?

Analysis

[13] On June 24th, I issued an oral ruling that Mr. Slessor would not be removed as counsel to argue the motion to stay nor the motion to disallow him from making submissions about making the Crown case on the application.

[14] On this application, the issue became whether full investigative disclosure was provided to the Defence. Discovery of any shortfall of disclosure arose when Detective Constable Gibbons was being cross-examined by Mr. Rolfe on the application to challenge the search warrant.

[15] The blow-up information on this application is the discovery by Mr. Rolfe during cross-examination of Detective Constable Gibbons that she had another binder of information much of which had not been disclosed to the Defence. When the officer was questioned about the additional information, why she had not produced it previously, whether or not the Crown Attorney had known about it, the officer provided many answers that were often in conflict with each other.

[16] Detective Constable Gibbons testified that she had compiled the information in preparation for cross-examination as the affiant for the information to obtain the search warrant of the residence of Mr. Clabby. She had been provided with a copy of the Defence application to challenge the search warrant. Her answers varied from providing information to the Crown, to thinking some or most of the information had been disclosed, to the Defence to having difficulty remembering what had been done, to thinking she did not have to disclose and to the Crown telling her that the information would not be provided to the Defence counsel.

[17] There has been some issue about this additional information being work product and privileged. That position is not taken by the Crown now.

[18] Mr. Rolfe has expressed some very strong comments about the conduct of both the Crown and the officer challenging whether they should be believed or at the very least that they should be considered to have handled matters very negligently.

[19] Mr. Slessor has just as forcefully responded that there was no intent to mislead or hide information from the Defence. In fact, the additional information would be in the category of helpful information for the prosecution so that there would be no benefit to hide it.

[20] I do not interpret the evidence to lead to a conclusion of bad faith by either the Crown or the police. However, the failure to provide this information has arisen through oversights that are not minor in nature. The officer has 16 years police experience. The Crown has many years of experience. Had this information been delivered prior to the start of the trial, the Defence may have sought an adjournment with success.

[21] This information broad-sided the Defence during the Charter motions when this case was at trial. How does a Defendant recover from such an ambush, even if it is not an intended ambush? He is entitled to have a fair trial. A Defendant is not expected to prove his innocence by anticipating what the prosecution might present at trial. Mr. Clabby is not to guess at the case he might meet. Rather, Mr. Clabby is to have full disclosure in advance of trial. When his lawyer, during cross-examination of Detective Constable Gibbons, has been conducting comprehensive questioning after preparing fully for trial, he is not to be surprised with unheard of evidence. A common word of advice to all counsel at the commencement of their legal careers is that one is wise not to ask questions to which they do not know the answers. Here, suddenly, Mr. Rolfe found himself in such a position.

[22] A stay of a serious prosecution is not ordered casually. If there are other avenues to address the problem, courts should explore them. Such courses might be declaring a mistrial with the parties starting over again or excluding some or all evidence or allowing the trial to continue in spite of the Charter infraction.

[23] Mr. Slessor for the Crown accepts that there is a section 7 Charter infringement, but he submits that an order staying the prosecution would be more extreme than is justified. The court could allow the trial to continue without the Crown being able to use the non-disclosed evidence. Mr. Rolfe has suggested that all of the evidence including what was seized at the residence of Mr. Clabby should also be up for exclusion.

[24] I have pointed out that with this evidentiary disclosure problem on the courtroom floor, the elephant is now out of the cage and dominating the room. If the evidence divulged by Detective Constable Gibbons in cross-examination is excluded, that will not be the end of the Charter issue because it will impact on the search warrant application in the other ongoing application. The evidence seized at the Clabby residence might be impacted on that application, but not here on this application. This trial will continue to explore remaining disclosed evidence and then will consider the search warrant evidence if the trial continues.

[25] If the trial ends with an order for a mistrial, the parties will be back to the beginning and will proceed again. However, the Defendant is in custody and has been for the past year and a half. When another trial will be able to commence possibly with another judge might be many months away. The costs of the trial will be considerable.

[26] I am not persuaded that there should be an order staying the prosecution of these criminal charges because of the extreme prejudice to the person who is being prosecuted. The problem did not arise through any actions of Mr. Clabby or his lawyer. The actions of the prosecution and police were negligent.

[27] The additional evidence that was disclosed by Detective Constable Gibbons during her cross-examination will be excluded. Balancing the problem in this way addresses prejudice sustained by the Defendant and permits the trial to proceed with remaining evidence to be presented for the Charter motion regarding the efficacy of the search warrant. If the search warrant should be found to be valid, then evidence will be available for the trial.

Conclusion

[28] Section 7 of the Charter has been infringed, as accepted by the Crown; however, the remedy is not a stay of the prosecution under section 24(1) of the Charter. Rather, there will be an order excluding the non-disclosed evidence.

Justice B.A. Glass Released: August 9, 2016