Court File and Parties

Court File No.: 105-17 Date: 2018/08/21 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Stephen Gautreau

Counsel: Brian White, for the Crown Devin Bains, for the Applicant

Heard: July 6, 2018

Before: Justice J.C. George

Introduction

[1] The Applicant Stephen Gautreau seeks a stay of proceedings or, in the alternative, permission to rescind his delay waiver. He alleges that his rights under ss. 7, 10(b), 11(b) and 11(d) of the Charter of Rights and Freedoms have been violated. This is the Crown’s motion to summarily dismiss that application pursuant to r. 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice.

[2] The Applicant is charged with the second-degree murder of Robert St. Denis. He was arrested on July 16, 2015 and has been in custody since. His jury trial commences October 9, 2018. He was committed to stand trial after a preliminary inquiry which is significant as the Crown had sought a Direct Indictment, which the Attorney General ultimately declined to approve after inviting and receiving input from the parties.

[3] The Applicant advances these grounds in support of a stay:

• Shortly after his arrest, and during his transport, one of the arresting officers offered him a cell phone to place a call to counsel. This call was not in private. It was on speaker phone and overheard by four officers. While the Applicant told his lawyer that he was not speaking to her in private, she was not told the call was on speaker. The officers facilitated this call and did not attempt to stop the conversation listening in throughout; and
• Crown disclosure was dumped, disorganized, delayed, and provided in a piecemeal fashion. This approach essentially hid, for an extended period, the basis upon which the Applicant was considered a suspect and did not reveal the investigative thread of the case.

[4] The Applicant argues that the cumulative effect of these violations warrants the most extreme remedy available, a judicial stay of proceedings, as there is no other sanction sufficient to condemn the police and Crown conduct in this case. He argues that this issue deserves at least a hearing and ought not to be summarily dismissed.

Crown’s Motion for Summary Dismissal of Applicant’s Stay Application

[5] The Crown argues that, while a rarely used provision for stay requests, this application requires a preliminary assessment of its merits pursuant to r. 34.02 which should lead me to conclude that there is no reasonable prospect that it can succeed.

[6] Rule 34.02 provides that:

The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

[7] The Crown’s written materials focus on what it says is the deficient evidentiary foundation pointing out that the Applicant has not filed transcripts, has not indicated what witnesses he intends to call at the application, and that the affidavit evidence is from a law student who has no first-hand knowledge of this case or its procedural history. It further submits that the Applicant has displayed a lack of diligence in pursuing this matter as he did not raise it at the judicial pretrial (JPT) or even mention it in his pre- conference report.

[8] The Crown understands the Applicant to be making serious allegations of police and Crown misconduct which, it argues, requires a heightened focus on the supporting evidentiary foundation. It concedes that to summarily dismiss a stay application would be extraordinary – although I note that Phillips J. recently employed this provision in R. v. Picard, 2018 ONSC 3828 (June 29, 2018); [2018] O.J. No. 3520 which involved a charge of first-degree murder. While it is not on all fours - Picard was addressing the second application for a stay on account of delay (the decision on the first having been lifted by the Ontario Court of Appeal) – Phillips J. commented as follows at para. 14:

An 11(b) application is nothing less than an assertion that an accused individual’s treatment at the hands of the state has run afoul of the constitution. Of course, such an application must be decided fairly and judicially. The court has discretion to control its processes and to determine what procedure shall be followed to arrive at such a principled result. Since it will generally be assumed that the application is not brought lightly and has some evidentiary foundation, a full in-court hearing will be the norm. Nonetheless, the court retains discretion to perform a triage function, sometimes determining a matter summarily on the basis of an abridged record taken at its highest for the applicant. It is important for the proper administration of justice that applications devoid of any reasonable prospect of success not take up the court’s limited resources.

[9] Even though no transcripts were filed, I did receive audio recordings for each court appearance and electronic copies of the Crown disclosure (in the form it was provided to the Applicant). And while the Applicant rectified most of the evidentiary deficiencies identified by the Crown, I still have the discretion to, after taking the Applicant’s position and record before me at its highest, determine whether there is any prospect of success.

[10] I am going to address each ground in turn and conclude by assessing whether the cumulative effect of them, to the extent the record supports their existence, could reasonably lead to either of the remedies sought.

[11] Before I do that it might be helpful to speak to the burden the Applicant has to prove that a stay, the most drastic remedy available, is warranted. The jurisprudence is clear that the burden is an onerous one and that a stay should only be granted in the “clearest of cases”. It often boils down to a choice between two options – the court can either grant the stay or insist on a trial on the merits. That is, there is usually no middle ground as to grant a stay is to determine that no other remedy will suffice. Of course, the Applicant seeks as alternate relief permission to rescind his delay waiver which would allow him to file a s. 11(b) application, but I will address that separately at the end of these reasons.

[12] It is important to also note that, in order to review a core prosecutorial function, the Applicant must point to overwhelming evidence that would support an abuse of power. I will elaborate on this in a moment, but the Applicant alleges impropriety in the Crown’s decision to seek a Direct Indictment.

Evidentiary Record Relied Upon

Overview

[13] The Applicant has filed the audio recordings of all court appearances, an electronic copy of the Crown disclosure, an ‘information and belief’ affidavit sworn by his counsel’s law student, and has referenced the events preceding and circumstances surrounding his decision to waive delay.

[14] The recordings speak for themselves. They detail what occurred at each court appearance and reveal the progression and timing of disclosure and the scheduling of further dates and JPT’s. The law student’s affidavit provides a second-hand account of Applicant counsel’s reaction to the nature and timing of disclosure. It is deposed that upon his receipt of the initial disclosure package he could not make “heads or tails” of it and that he expressed his opinion (to the Crown who had carriage at the time) that there were “too many thematic gaps”. It sets out the circumstances surrounding the setting of the JPT’s in the Ontario Court of Justice (OCJ), indicating that the Crown initially insisted that it be set without disclosure being complete. It also speaks to the circumstances surrounding the Crown’s request that a case management judge be appointed, which occurred in July 2016.

[15] I was advised by counsel, and the affidavit speaks to this as well, that on July 12, 2016 the matter was adjourned to allow the Applicant to review just received disclosure that consisted of 700 pages and 32 hours of videos.

[16] I was advised during argument that, while all of this going on, there was a Part VI Criminal Code component to the investigation which had, as of the August 5, 2016 OCJ JPT, been ongoing for approximately four months. Applicant counsel advises that this is when he first learned that the investigation was ongoing, that there was a Part VI component, and that it was part of a Special Project.

[17] I pause here to note that while there were written disclosure requests the Applicant did not at any point have to bring a motion to compel disclosure. It appears the reason for this is that, in November 2016, Mr. Michael Carnegie became the lead prosecutor, which marked a dramatic change in the conduct of this case. Indeed, the Applicant acknowledges that Mr. Carnegie brought order to the file which allowed the case to proceed efficiently and in a more meaningful way. While disclosure issues continued, it is common ground that it became better organized and timelier.

Direct Indictment

[18] On March 2, 2017, after preliminary hearing dates had been selected, Mr. Carnegie advised that he was authorized to request a Direct Indictment. This was followed by each counsel making submissions to the Crown Law Office (Criminal). The Applicant’s primary position was that a preliminary hearing was necessary for him to make full answer and defence. He characterized the disclosure to that point as being “piecemeal” and presented in a “non-linear way”. The Applicant ultimately offered to waive his rights under s. 11(b) - from March 27, 2017 until the first appearance in the Superior Court – in exchange for the hearing proceeding.

Disclosure

[19] With respect to the Applicant’s disclosure concerns, Mr. Carnegie rectified them. That said, as a supporting ground the Applicant continues to identify the timing of disclosure and the way it was organized as a basis, at least in part, for a stay.

[20] These are his specific concerns respecting disclosure:

• a synopsis did not accompany the initial package;
• the video recording of a key witness’s statement was not included in that initial package;
• with respect to another key witness only a synopsis of his statement was provided;
• it was organized in a way that did not differentiate between the critical Crown witnesses and others who were of less importance;
• the transcript of another crucial witness’s statement – William Liddiard – was provided “in the middle of a single 319-page PDF without a table of contents, containing statements of others”, essentially within a document dump; and
• the use of probabilistic genotyping technology was not disclosed in a timely manner.

Discussion

Crown Position

[21] The Crown’s approach was to go through each ground, attack its foundation, and protect against any suggestion there was Crown or Police misconduct. It pointed out that none of the Applicant’s allegations cast into doubt his current ability to make full answer and defence and have no bearing on trial fairness.

[22] Apart from a lacking evidentiary foundation, the Crown highlights the fact that this application was not addressed at the Superior Court JPT and was not mentioned at all in the Applicant’s pre-conference report, notwithstanding the fact there is an entire section devoted to potential stay applications. The Crown concedes that the failure to raise this issue at the JPT should not, standing on its own, bar a hearing on the merits, but suggests it is a factor as it speaks to the importance the Applicant has ascribed to this issue, and displays a lack of diligence in pursuing it.

Applicant Position

[23] The Applicant says his stay application is not about discretionary Crown choices that might amount to misconduct, but rather an attempt to highlight the collection of events and decisions that prevented him from, until only recently, appreciating the true nature of the Crown’s case. During argument, Applicant counsel advised that there was no allegation of prosecutorial misconduct by Mr. Carnegie. In fact, he describes him as the “saviour” of the situation.

[24] The Applicant contends the Crown had an obligation to advise him of the ongoing nature and scope of the investigation post-arrest, and that the cumulative impact of all his concerns should lead to a stay, as it is the only logical remedy.

[25] He articulated his alternative position which is his waiver should be vacated so that he can bring a Jordan application.

Assessment

[26] Before deciding this issue, I must first be satisfied that the evidence before me on this dismissal motion is the evidence I would be asked to consider at the stay application. I am so satisfied. While not entirely analogous a r. 34.02 assessment is similar to a summary judgment motion. Both the Crown’s written materials and oral submissions set out in detail its view of the evidentiary deficiencies, the Applicant’s response to that being fourfold:

• first, he filed a hard drive containing the Crown disclosure;
• second, he filed a disc containing the audio recordings of most, if not all, court appearances;
• third, he committed to ordering and filing transcripts if I so ordered, which I don’t finding the recordings to be a sufficient substitute; and
• fourth, in describing it as uncontroversial he asked that I rely on the law student’s affidavit at no point indicating that additional material was to follow.

[27] Applicant counsel argued that the stay application is far simpler than the materials suggest and the Crown has portrayed, characterizing this as essentially a document dumping case. In response to pointed questions, he confirmed that his client’s previous waiver of delay was unequivocal, fully informed and that he was not misled in any way. He confirmed that his client is “on track for a fair trial” and that Mr. Carnegie fixed all disclosure related issues. He further advised that he was aware of the ongoing nature of the investigation before the preliminary inquiry (and therefore well in advance of the Superior Court JPT), and that the concerns he has were formulated well before that JPT offering no good explanation for why it was not raised either in his pretrial report or at the hearing itself.

[28] The record before me, which includes the Applicant’s fully developed argument on his stay request, allows for an assessment of the application’s merits and its prospects for success. All relevant facts are known, and the Applicant’s position has been comprehensively laid out. In other words, before me is not an abridged version of the record but a complete one.

[29] After reviewing this complete record and after considering each parties position, I conclude first that r. 34.02 applies, and second, that there is no reasonable prospect that the stay application as currently constituted can succeed. I arrive at this conclusion taking the Applicant’s position and the filed evidence at its highest.

[30] While not determinative, the fact this issue was not raised or discussed before or at the JPT is a factor that weighs against the use of further court time and judicial resources to litigate it. This does not operate as a bar but is the context in which to view the Crown’s dismissal motion.

[31] With respect to the stay application’s merits I have had the opportunity to review the disclosure - as it is compiled on the disc filed by the Applicant - and simply don’t share his view that it is disorganized to such a degree that it is one of the “clearest of cases”. To the extent disclosure was problematic, no reasonable person, looking at this record, could conclude that a stay is the appropriate remedy. The proper procedure would have been to bring a motion to compel disclosure, which is the appropriate relief. This became unnecessary with Mr. Carnegie’s arrival.

[32] What of the Crown’s decision to seek a Direct Indictment? This, alone, is clearly insufficient to sustain a judicial stay, especially since this case did not ultimately proceed by way of a Direct Indictment. Also, it cannot be said that it, as one event in a series of events has, cumulatively, resulted in an unfairness that could warrant a stay. The Crown decision to seek a Direct Indictment could only be relevant in one of two ways. First, such a decision, even if a core prosecutorial function, could conceivably be an abuse of power. This would be an extraordinarily high threshold to meet but it is possible. The Applicant makes no such claim. Second, it could potentially be characterized as a tactic to improperly induce a s. 11(b) waiver in exchange for a preliminary inquiry. The Applicant doesn’t advance this claim either which, even if he did, would likely constitute but a component of a broader abuse of power argument and be inconsistent with his characterization of Mr. Carnegie’s impact on this case.

[33] What is the import of the police decision to listen in on the Applicant’s conversation with his counsel? It - neither standing alone, or when considered together with other Police/Crown conduct – could possibly sustain a judicial stay of proceedings. There is no dispute over the facts. After the Applicant’s arrest, and while in transport to London, he was permitted to use an officer’s cell phone to speak with one of his lawyers. The lawyer was told by the Applicant early in the call that he was not in a private place, but did not until the end of the call advise that she too could be overheard as they were on speaker.

[34] While it was ill advised to allow this to happen and while the officer should have advised counsel that the call was on speaker, I accept that the police were trying to be helpful and that there was no nefarious purpose in this particular decision.

[35] The context is important. First, the Applicant was advised repeatedly before the call was placed that it would not be in private to which the Applicant responded, “yeah that’s fine”. Second, this was not presented as his only opportunity to speak with counsel and he ultimately did have that chance in private. While there is an argument to be made that the police should have immediately attended at a closer detachment to facilitate a private call sooner (as opposed to continuing to London which was going to take some time), the proper forum to consider this question is on a motion that seeks to exclude the statement. That is, to the extent a remedy is necessary it is through exclusion. There is no prospect that the police behaviour, while ill-advised, could constitute one of the “clearest of cases” warranting a stay.

[36] The point was made several times that to summarily dismiss a stay application would be rare and extraordinary, and that I should only do so if the application is completely meritless. While this is true, it is important to note that the Applicant’s position is quite remarkable. While asserting as grounds the decision to seek a direct indictment, problems with disclosure, and police conduct in listening to a conversation he had with counsel, and while seeking as an alternative remedy a vacating of his delay waiver, he is conceding that all disclosure problems have been rectified, that he is now well situated and on track to have a fair trial, that his waiver was neither improperly induced or uninformed, and is simultaneously (in a separate motion) seeking to exclude all of his statements to police relying in part on the decision to listen in on one of his phone calls. Applicant counsel acknowledges his is a creative position.

[37] The bottom line is this. In the absence of any trial fairness issues that cannot be (or have not been) rectified, and without any grounds to find that the Applicant’s delay waiver was either improperly induced or uninformed, there is not only a dearth of evidence in support of a stay, there is no basis upon which to set aside the waiver.

[38] At its essence, the Applicant’s position seems to be that even though we are under the Jordan ceiling (after deducting the waiver period from the total time to trial), that he nonetheless believes his right to be tried within a reasonable time has been violated. And were this application framed in that way I would be hard pressed to summarily dismiss it.

[39] The Jordan decision expressly provides for “transitional cases”, which this is. Not only that, under the new regime it is always open to an accused to argue that - even when delay is under 30 months - the time to trial is nonetheless unreasonable by establishing that he took meaningful steps to the expedite the matter, and that (even though the net delay is under 30 months) the case took markedly longer than it should have. This application pleads neither.

Conclusion

[40] In the result I find there is no prospect that this application can succeed and conclude that it must be dismissed pursuant to r. 34.02.

Justice J.C. George Released: August 21, 2018