COURT FILE NO.: CR-13-30424 DATE: 2017-05-04 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – DAVID JOHN BULLEN Defendant/Applicant
COUNSEL: R.W.A. Sonley and M. Jarmoc, for the Crown/Respondent G. McInnis for the Defendant/Applicant
HEARD: May 1 - 2, 2017 at Ottawa
Ray, J
Overview
[1] The defendant brings this application mid-trial, after a brief adjournment at the request of the defendant and agreed to by the Crown, for a stay; or alternatively for an order excluding all wiretap evidence on the grounds that the Crown is in breach of its Stinchcombe obligations concerning disclosure of all relevant wiretap evidence. The defendant claims a breach of ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms (“The Charter”).
[2] This application proceeded as a voir dire since much of the evidence before me for obvious reasons had not been, and may not be, admitted as part of the trial.
[3] The defendant faces several counts involving drug trafficking, member of a criminal organization and related offences over the period May,1997 to December, 2012, and December, 2012 to October, 2013. These charges are as a result of two years of intensive O.P.P. investigation.
[4] The evidence in this large scale project is enormous, and includes considerable surveillance and wiretap evidence. Disclosure of this substantial evidence by the Crown took place regularly but over an extended period of time. Any questions or enquiries by the defendant were promptly answered by the Crown. It is disclosure of the wiretap or intercepts evidence that is at issue. There is no suggestion that the Crown intentionally breached its Stinchcombe obligations. The Crown did not refuse any of the defence requests for disclosure. It is the form of the evidence that is essentially in question.
[5] The wiretaps took place with appropriate authorizations. There were approximately 124,500 text and audio intercepts. Those intercepts determined by the police investigators to be “pertinent” to the investigation were documented in a Monitor Post Report (“MPR”), which is described as a log that contained the date of the intercept, the names of the police officers involved, the names of the parties being intercepted, the session numbers for each intercept, and a brief summary of what was contained in the intercept. According to the defendant who has reviewed all of the MPRs during this last adjournment, there are approximately 11,500 referenced communications contained in approximately 3,500 pages. The Crown disclosure sent to the defendant also included a ‘Tech Brief’ in an electronic format that contained approximately 3,500 audio recordings and SMS communications of intercepts, along with s.189 Notices that listed 749 intercepts. The Tech Brief also included charts that organized the evidence but only the evidence contained in the Tech Brief. The defendant had been unaware that the MPRs contained records of intercepts that had not been disclosed previously as audio recordings/transcripts. The Crown’s position is that he had advised the defendant’s previous counsel at the pretrial on March 17, 2013 that the disclosed audio recordings and transcripts were the only ones the Crown was relying on; and if he required “anything further after reviewing the MPRs, he would have to request same”. The defendant does not admit that exchange between the Crown and the defendant’s previous counsel.
[6] The evidence on this application includes an affidavit from Mr. Tait, litigation paralegal in the offices of defence counsel; the affidavit of Ms. Labelle, litigation paralegal in the offices of the Crown; the affidavits of Mr. Langevin and Ms. Condo, and cross-examination of Ms. Condo, counsel for the defendants in a parallel prosecution arising out of the same project.
Issue
[7] The issue is whether the MPRs were sufficient disclosure of the intercepts since undoubtedly the MPRs contained references to all relevant intercepts; or whether the Crown had been required to provide all audio recordings of the referenced communications. The ancillary issue is whether the manner of disclosure at the time effectively masked the disclosure to the extent of misleading the defendant to believe that all of the intercept recordings and text messages had been disclosed.
Position of the Parties
[8] It is not in dispute that the Crown did not provide the defendant with all relevant audio recordings, but only those that were relevant to the Crown’s case. The defendant’s position is that placed the Crown in breach of its disclosure obligations. The Crown’s position is that all of the relevant wiretap evidence was contained in the MPRs and therefore it had complied with its disclosure obligations; and had counsel looked at it, she would have immediately recognized the MPRs were far more exhaustive than the disclosed audio recordings - and would have requested the recordings and text messages. The Crown’s position is that the defendant’s neglect caused the failure to obtain the audio recordings and text messages.
[9] The defendant’s position is that if I were to conclude that an adjournment is the proper remedy, counsel will require several months to arrange for third party assistance, and financing for the costs to be incurred. The Crown proposed that the trial evidence continue, and the cross-examination of the intercept witness be deferred to provide the defence with an opportunity to complete their review and preparation. It is suggested that I consider creating timelines for the adjournment. Both counsel are aware that my last sitting week will be October 2, 2017 because of my compulsory retirement.
Relevant Chronology
[10] The first wave of disclosure occurred October 23, 2013. It was in electronic form and included a ‘Bail Brief’, and a DVD containing subfolders, two of which were described as Monitor Post Reports and Wiretap Authorizations.
[11] A further wave of electronic disclosure took place January 9, 2014 with two DVDs containing several subfolders including MPRs, and Wiretap Authorizations. With respect to the Monitor Post Report folder, it contained two sub-folders: “Amalgamated MPR – Whole Project Complete” and “Newly Disclosed MPR since last disclosure”. The Crown’s position is that those headings clearly notified the reader that the sub-folder “Amalgamated MPR – Whole Project Complete” contained all MPRs disclosed to date, and the second folder “Newly Disclosed MPR since last disclosure” notified the reader that these were additional MPRs.
[12] A pretrial had taken place March 17, 2014. The Crown asserts that Mr. Sonley told the defendant’s previous counsel that “the only audio and transcripts he had been provided were the ones the Crown was relying on. If he required anything further after reviewing the monitor’s logs, he would have to request same”. There is nothing at all to contradict the Crown’s evidence of his exchange. There is nothing in writing to support it. Those comments are not admitted by the defendant. Counsel agreed to expunge any references to what was discussed at the pretrial from the affidavit material as being an improper disclosure. I revised the Application Records in accord with counsels’ direction.
[13] May 6, 2014, the Crown delivered a third wave of disclosure on a hard drive that included a Tech Brief. The Tech Brief was organized with a table of contents. It contained a comprehensive folder, named “Intercepts” which contained all audio communications that the Crown was relying on in one searchable location. It also contained ‘Charts’, one prepared for each accused, which consisted of a list of intercepts for all phone numbers associated to the particular accused. Hyper-links were embedded for access to the relevant audio and transcript. On January 8, 2015 a further hard drive was delivered by the Crown with updated material as “combined disclosure”.
[14] Further disclosure of other evidence not material to this application continued from time to time up to and during the trial.
[15] The defendant’s previous counsel had begun sending letters October 21, 2016 requesting disclosure, with several follow-up requests. None was related to the disclosure of intercept transcripts. Mr. Tait, his litigation paralegal, said he did not examine the disclosure substantively, but only the particular item, type of disclosure, and ensured that it was placed in a cabinet. According to him, it was the defendant’s previous counsel who reviewed the disclosure. He recalled several times setting him up with the disclosure hard drive that had been received from the Crown.
[16] Pretrial applications were heard in November and December, 2016. (2016 ONSC 7684 and 2016 ONSC 7875) The trial began February 8, 2017.
[17] The defendant’s previous counsel was appointed to the Ontario Court of Justice on February 16, 2017. The defendant’s current counsel took over the defence. The trial was adjourned for two weeks at her request so she could conduct her own preparation in order to continue. She had not been involved in the defence until the beginning of pretrial motions and had not therefore been privy to the disclosure exchanges at the time they had taken place.
[18] The defendant first raised this issue on April 4, 2017 when it was expected the trial would continue after a further scheduled two week break. The application had been served April 1. By April 5, the Crown had put all of the audio recordings referenced in the MPR into the hands of the defendant. The application was adjourned to May 1, 2017 in order to give the defence time to prepare any further materials.
[19] Exchanges between counsel on this issue had begun after the defence counsel sought assistance from the Crown during the two week break because she was not able to find an audio recording in the Tech Brief of an intercept she had reviewed in the MPR. Up to that point she had believed that the MPR was redundant as it replicated the contents of the Tech Brief. The Crown in responding to her enquiry confirmed incorrectly that the MPR contained a record of all the intercepts: “My understanding is that all the calls intercepted are in the Monitor Post Reports. Those reports were reviewed and only intercepts pertinent to the offences were identified for transcription.” [1] That was incorrect. It was later clarified that the MPR contained all “pertinent” communications, not all communications, and that only the communications the Crown intended to rely on had been transcribed. Since that date, the Crown has made available to the defence, at their request, copies of the 113,063 intercepts that were considered by the investigators to be “non-pertinent”.
[20] Mr. Langevin and Ms. Condo are defence counsel in a parallel action before my brother Hackland, J. They assert under oath that throughout the proceeding involving their clients, who had been charged as part of the investigation against the defendant, they were of the belief that all relevant intercepts were in the Tech Brief. They assert they were unaware that relevant intercepts had only been summarized in the MPR, and were therefore unaware of the discrepancy between the MPR and the Tech Brief.
Analysis
[21] The obligation on the Crown is to disclose all relevant information: Information is relevant for the purposes of the Crown's disclosure obligation if there is a reasonable possibility that withholding the information will impair the accused's right to make full answer and defence. [2] The defendant does not have the right to insist on a particular method of disclosure. [3]
[22] Neither a stay of proceedings nor an order excluding wiretap evidence as sought by the defendant will be granted. There is no evidence of a wilful breach of the defendant’s Charter rights by the Crown. Nor is there evidence that any failures cannot be rectified by an adjournment. A production order is unnecessary since all of the relevant audio recordings and text intercepts have now been disclosed. The available remedies are different before the entry of a conviction than afterwards. [4]
[23] The defendant’s previous counsel was a reputable defence counsel who was noted for his careful attention to detail. I accept as possible that the defendant’s previous counsel had reviewed the MPRs and concluded they were not relevant to his client’s defence. It is also possible that he assumed, as did the other defence counsel (Mr. Langevin and Ms. Condo) that the ‘Tech Log’ contained the audio for the intercepts that were summarized in the MPRs. Ms. Condo discovered during her client’s trial during the fall of 2016 that a transcript of an audio intercept was not available for cross-examination purposes, but was listed in the MPR. She had asked Detective Lecuyer, and he produced the audio to her. She believed at the time that it had been her error in trying to find the audio recording; and still did not realize that the Tech Brief had not contained all the relevant intercepts. Her first notice was when Ms. McInnes contacted her during the week of March 20, 2017.
[24] I am satisfied that had the Crown forwarded the electronic disclosure in October, 2013 with a covering letter explaining that the Tech Brief contained only the intercepts that the Crown would be relying on; and that the MPR contained a summary only of all the relevant intercepts – including those in the Tech Brief, that there would now be no question about the relationship between the two folders of evidence, and the extent of the disclosure.
[25] I accept the Crown’s evidence, as an officer of the Court, of Mr. Sonley’s conversation with the defendant’s previous counsel. It is possible that the defendant’s previous counsel had misunderstood the Crown’s remarks. There is no evidence that the defendant’s previous counsel had made a tactical decision not to request the audio recordings summarized in the MPRs.
[26] It is important to recall that the contents of the MPR – some 11,500 intercepts in some 3,500 pages - had been determined by the police investigators as “pertinent”. The Crown is not now contending that those intercepts were not producible in accordance with Stinchcombe. I agree. The MPRs in and of themselves have been recognized as an acceptable form of disclosure. The Crown is not obliged to personally catalogue and examine every item of evidence. [5] But surely a brief explanation or index of what is contained in the disclosure is required, particularly when large quantities of evidence are disclosed electronically. By providing only a summary of each of the communications without an explanation that most were not in the Tech Brief – some actual 3,500 audio recordings – the Crown did not meet its obligation for disclosure. [6]
[27] I am satisfied that a careful review of even the first page of the MPRs demonstrates that those initial intercepts had not been considered by the investigators, who prepared them, to be relevant to the Crown’s case. Lengthy pretrial applications demonstrated that all counsel, Crown and defence, had worked diligently and thoroughly to master the intricacies of the evidentiary issues; and the various legal issues. There was nothing passive about the participation of counsel. However, no one looked at the MPRs. Had the MPRs contained not only a summary, but also the actual audio recordings of the balance of the intercepts, it is not clear to me that counsel would have looked at it. Absent a covering explanatory letter, it is possible that counsel would not have recognized the disparity between the Tech Brief and the MPRs. Had that been the case, however, the defendant’s argument might have failed. However, the audio recordings were not included, and there was no explanatory letter.
[28] It must be noted that once the defendant reviewed the MPR early in the week of March 20, 2017, she immediately recognized that audio recordings were not available for many of the communications summarized in the MPR. Her factum contains a detailed review from the MPR of what had not been disclosed in the Tech Brief audio recordings. Leaving aside whether the defendant’s previous counsel had actually reviewed the MPRs, had the defendant’s current counsel, Ms. Condo and Mr. Langevin conducted due diligence, and conducted the same review four years ago, the disclosure issue would have been dealt with; and this application would not have been necessary. The evidence is that they did not.
[29] Defence counsel’s diligence in pursuing disclosure from the Crown is a significant factor in determining whether the Crown’s non-disclosure affected the fairness of the trial process. Where a tactical decision is made by the defence not to pursue particular disclosure, a complaint that full disclosure has not been made will not be treated sympathetically. [7]
[30] Ordinarily, a claim of a s. 7 Charter breach must show actual prejudice to the defendant’s ability to make full answer and defence. A simple breach of the defendant’s right of disclosure does not in and of itself constitute a violation unless an adverse effect on the defendant’s ability to make full answer and defence is shown. [8] It is not necessary to make a finding of a s. 7 Charter breach where the adverse impact upon the accused’s ability to make full answer and defence is curable by an adjournment. [9]
[31] I am satisfied that an adjournment is the appropriate remedy. I am satisfied that the defendant’s trial fairness rights have been compromised by a combination of the failure of the defence to thoroughly review the wiretap disclosure, and the failure of the Crown to describe the disclosure of the Tech Brief, the MPRs, and their inter-relationship. Since this issue was first raised with the Crown by the defendant, the Crown has provided the audio recordings of all 11,500 intercepts referenced in the MPRs. Some are in French. The defendant has not been able to review all of the recordings, nor arrange translations and transcripts. The defendant is faced potentially with additional costs.
[32] The defence gave three examples that she was able to turn up that supported the view that intercepts proposed to be placed in evidence by the Crown could be interpreted differently with the admission of intercepts that were not contained in the Tech Brief.
[33] Ordinarily the proper remedy would be to grant an adjournment to the defence to permit completion of her review. Counsel advises that she would require an adjournment of several months. The wiretap evidence has just begun. I accept, however, that at this stage she has no idea the size of either the challenge or the relevance ultimately of the audio recordings to the defence. There may be remedies that the defence will have to pursue to finance the further investigations. That may cause delays. Regrettably, it is my compulsory retirement this fall that places at risk completion of the trial if an adjournment of that length is granted. The Crown’s suggestion that the trial proceed with the balance of the evidence, then adjourn so the defence can deal with these additional intercepts is not a solution. While it could work, and while I would be prepared to revise my plans for the next several months to accommodate completion of this trial, it would potentially cause enormous consequences if an unforeseen circumstance later in the trial or in the fall triggered any further delay. The defendant may not know what if any evidence it may have to lead on resumption of the trial after the proposed lengthy adjournment.
Conclusion
[34] Having regard to all of the circumstances, the best remedy now is to grant a mistrial. Counsel indicated in their submissions, that the pretrial applications will not have to be re-argued and are content that my decisions continue, subject to any appeal rights. The defendant suggested she would be content that transcripts of the evidence heard to date would be filed at a new trial in order to expedite scheduling. That is a sensible suggestion. The cross-examinations were minimal. Several Agreed Statements of Fact were filed as the trial proceeded. There is no reason why those admissions would not be filed. Similarly a great number of exhibits were admitted on consent, and could readily be admitted at a new trial.
[35] I suggest that this case go to a pretrial before the local administrative judge (criminal) as soon as possible to canvass these issues and hopefully many more including a trial date, so the new trial can proceed expeditiously. The Trial Coordinator is present at my request. Justice Ratushny is available next week, and the TC has her schedule.
Honourable Justice Timothy Ray Released: May 4, 2017
REASONS FOR Decision (voir dire)
COURT FILE NO.: CR-13-30424 DATE: 2017-05-04 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DAVID JOHN BULLEN Defendant Honourable Justice Timothy Ray Released: May 4, 2017
Footnotes
[1] Ms. Jarmoc’s email to the defence, dated March 23, 2017.
[2] Canadian Charter of Right and Freedoms, s.7; R. v. Girimonte, (1997), , 37 O.R. (3d) 617, 121 C.C.C. (3d) 33 at para. 15 (O.C.A.)
[3] R. v. Bjelland, 2009 SCC 38, [2009] S.C.J. No. 38 at para 34
[4] R. v. Dixon, , [1998] 1 S.C.R. 244 at para. 33. (S.C.C)
[5] R. v. Siemens, [1998] A. J. No. 1, para 22 .(Alta.C.A)
[6] R. v. Pereira [2007] B.C.J. No 3035 (S.C.B.C.) by analogy only.
[7] R. v. Dixon, supra, at para. 37. (S.C.C.)
[8] R. v. O’Connor , [1995] 4 S.C.R. 411 at para. 74 (S.C.C)
[9] R. v. O’Connor, supra, para. 76.