R. v. L.R.
COURT FILE NO.: CJ 9373
DATE: 2019/10/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. L.R.
BEFORE: Mr. Justice D.A. Broad
COUNSEL: Fraser M. Kelly, Counsel for the Respondent/Crown Harald Mattson, Counsel for the Applicant/Accused
HEARD: October 16, 2019
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA
ruling on Applicant’s application for a stay of proceedings pursuant to s. 24(1) of the charter of rights and freedoms
[1] The applicant L.R. was arrested on August 14, 2017 and charged with uttering threats, assault, sexual assault, kidnapping, forcible confinement, and human trafficking in respect of a 15-year-old complainant G.C..
[2] Coincident with her arrest the applicant’s cell phone was seized.
[3] On April 12, 2018 judicial authorization was granted to allow the Waterloo Regional Police Service (“WRPS”) to search the applicant’s cell phone. The judicial authorization was granted pursuant to an Information To Obtain, sworn April 11, 2017 (the “ITO”).
[4] The applicant was originally charged on the indictment with a co-accused J.J.T.
[5] Counsel for the applicant and for Mr. T. filed applications under s. 8 and 24(2) of the Charter seeking to have the results of the search under warrant of the applicant’s cell phone excluded from evidence. Counsel for Mr. T. filed an Addendum section 8 motion to challenge the validity of the production order.
[6] In the course of legal argument on the production orders motion, counsel for Mr. T. sought and was granted leave to file a motion for leave to cross-examine the affiant and the sub-affiant in respect of the ITO for the search of the applicant’s cell phone (a “Garofoli” application).
[7] Counsel for Mr. T. filed his Garofoli application on August 2, 2019. The Crown responded to the Garofoli application filed on behalf of Mr. T. on September 3, 2019.
[8] On September 20, 2019 Mr. T. resolved his matter and was removed from the trial which is scheduled to commence January 6, 2020.
[9] Mr. Mattson, on behalf of the applicant informed the Crown and the Court that he intended to seek leave to bring a Garofoli application on behalf of the applicant. Mr. Mattson subsequently informed the Crown and the Court that he intended to bring an application for a stay of the prosecution of the applicant pursuant to s. 7 and 24(1) of the Charter. On October 4, 2019 the court gave directions respecting delivery of the materials for the proposed Garofoli and s. 7 applications.
[10] On the return of applications on October 16, 2019 no objection was taken by the Crown to the applications being brought.
[11] During submissions the applicant and the Crown resolved the Garofoli application on the basis that the applicant be given leave to cross-examine Detective Constable Merrigan, the affiant on the ITO, restricted to para. 32 of the ITO, and the balance of the application was withdrawn by the applicant.
Background to the Application for a Stay
[12] The applicant, in her application for a stay, alleges that her s. 7 Charter rights were violated by late and misleading disclosure by the police and the Crown. She seeks a remedy under s. 24(1) of the Charter, specifically a stay of the proceedings or, if the court does not find that a stay is warranted, an order for the exclusion of all direct and derivative evidence obtained by the search under warrant of her cell phone.
[13] The background to the stay application is as follows:
(a) the ITO filed in support of the search warrant in respect of the applicant’s cell phone stated that judicial authorization was sought to search the applicant’s cell phone and to seize internet history, electronic messaging history, phone call history, contacts, photos and videos, over a date range of May 1 to August 14, 2017;
(b) the ITO recited that the complainant G.C., in her interview with police, identified a male who utilized the name “Tizzy” as being involved in one or more of the alleged offences;
(c) the ITO stated that “Tizzy” had not been identified;
(d) the ITO further stated that as the other suspect known as “Tizzy” has not yet been identified, investigators believed that there will be evidence of contact between the applicant and “Tizzy” on the applicant’s cell phone. It also stated that the affiant was also seeking to obtain pictures/videos associated to the applicant and any of the co-accused parties, including the yet to be identified “Tizzy;”
(e) the applicant originally filed her s. 8 application to exclude from evidence the results of the search of her cell phone on February 7, 2019;
(f) on May 16, 2019 (over one month after issuance of the warrant) the Crown provided additional disclosure to that previously provided which, among other things, contained a note of Detective Constable DeMarte indicating that on January 16, 2018 he received information from an “anonymous” police informant respecting “Tizzy’s” name and that “Tizzy” had died around September 15, 2017;
(g) on September 3, 2019 the Crown filed its response to Mr. T.’ Garofoli application which disclosed for the first time that the police had two (not one) “anonymous” sources which had given them information relating to the identity and possible death of “Tizzy.” The Crown’s Factum described the information as “unsubstantiated rumours” and no more than “rumour and conjecture”;
(h) in response to an inquiry from counsel for Mr. T., the Crown obtained from police and provided a notebook entry of Detective Constable Merrigan from March 14, 2018 which indicated he received some information in relation to the identity of “Tizzy” and his death. The Crown indicated that it had not received this March 14, 2018 note until September 12, 2019, after they had prepared their Factum making reference to the second anonymous source;
(i) on September 16, 2019 the Crown provided further disclosure from police to the defence, in the form of a memorandum from Detective Constable Merrigan, which stated that there were two separate sources of information in relation to “Tizzy” and that the sources were not “anonymous” sources, but were “confidential” sources;
(j) on September 17, 2019 an email was sent from the Crown to counsel for Mr. T. but not to the applicant’s counsel in which one of the Crown counsels assigned to the case indicated that she was aware that the two sources of information relating to “Tizzy” were confidential rather than anonymous. She explained that her use of the term “anonymous” in the Garofoli Factum was “an unthinking adoption of the police and applicant’s language;”
(k) on September 25, 2019 counsel received the September 17, 2019 email that had been previously sent by the Crown to counsel for Mr. T..
[14] The applicant submits the following respecting the conduct of the police:
(a) the police failed to disclose the true nature of the information that it had respecting “Tizzy” to the issuing Justice when applying for the search warrant;
(b) the first time the defence was made aware of information in relation to “Tizzy” was on May 16, 2019, three months after the applicant had filed her s. 8 Charter application;
(c) the information provided on May 16, 2019 was in fact misleading as it described the source of the information as “anonymous,” effectively conveying that police had no way to check or verify the reliability of the information. Contrary to the disclosure to the defence, the information that had been received by the police was from a known person and, as such, the police were aware of the degree of reliability of the information;
(d) Detective Constable Merrigan was aware, but did not disclose, that he had a second source confirming the information about “Tizzy;”
(e) at the very least the police were wilfully neglectful, or at the worst, the police sought to control the process of the warrant being issued, rather than leave the decision to the judicial officer.
[15] In addition, the applicant submits the following respecting the conduct of the Crown:
(a) the relevance of inclusion of the information about “Tizzy” in the ITO was fully apparent by June 7, 2019 when counsel for Mr. T. advised that he was bringing a Garofoli application, or at the very latest, when he filed his application on August 2, 2019;
(b) instead of providing the information of which they were aware that (1) there was a second source of information in relation to the identity and death of ”Tizzy” and that (2) the sources were “confidential” (meaning a known source the reliability of which could be assessed), the Crown withheld this information from the defence and moreover filed a Factum in response to the Garofoli application describing the information received in relation to “Tizzy” as “unsubstantiated rumours;”
(c) the Crown not only withheld the evidence and incorrectly described the evidence in its Factum, but obstructed and frustrated the applicant’s pursuit of the Garofoli application by not providing the necessary relevant information to furnish a complete application to allow the court to decide its merits on all relevant evidence;
(d) once Mr. T. was removed from the proceedings, the Crown, without informing the court and the defence of the true state of the relevant information, opposed the applicant’s attempt to pursue the Garofoli application previously initiated by her co-accused;
(e) to allow the Crown to mislead the defence and the court and pursue a remedy on deceptive and misleading information is an affront to the community’s sense of fair play and decency; and
(f) the conduct by the police and the Crown demands that the integrity of the justice system would be better served by a stay of proceedings rather than a full trial on its merits.
Guiding Principles
[16] The principles which should guide the court and the process to be followed when a stay of proceedings is sought by an accused due to an alleged abuse of process by state actors were comprehensively reviewed by Moldaver, J. in R. v. Piccirilli, 2014 SCC 16 (S.C.C.) at paras. 30 to 47. Those principles include the following:
(a) a stay of proceedings is the most drastic remedy a criminal court can order as it permanently halts the prosecution of an accused, frustrating the truth-seeking function of the trial;
(b) a stay of proceedings for an abuse of process will be warranted only in the “clearest of cases” which 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);
(c) The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
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 its outcome;"
there must be no alternative remedy capable of redressing the prejudice; and
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;
(d) The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linked and regularly arise in the same case;
(e) commencing with the first stage of the test, when the main category is invoked, the question is whether the accused's right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused;
(f) when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system;
(g) for a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well — society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare:
(h) in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system;
(i) At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused's right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. For those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward;
(j) the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. The balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed. When the main category is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern;
(k) However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings or having a trial despite the impugned conduct. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. The more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.
(l) An accused who is granted a stay under the residual category may realize a windfall. It is therefore important to consider if the price of the stay of a charge against a particular accused is worth the gain. The court must ask “does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits?”; and
(m) the "clearest of cases" threshold presents an accused who seeks a stay under the residual category with an onerous burden. Cases warranting a stay of proceedings in the residual category will be exceptional and very rare.
Discussion
(a) Imposition of a Stay of Proceedings
[17] It is clear that the police, in preparation of the ITO, failed to disclose information in its possession respecting the identity of a suspect who utilized the name “Tizzy” and that he may be dead. Not only did the police fail to disclose this information, it created the potential for an incorrect inference to be drawn that no such information existed by positively asserting in the ITO that “Tizzy” was “yet to be identified.”
[18] The identity of “Tizzy” was an important focus in the ITO as it stated, as part of the grounds to believe that the items to be seized from the cell phone will afford evidence of the offence, that evidence of contact between the applicant and “yet to be identified Tizzy” and pictures/videos associated to him and the victim will be disclosed by a search of the applicant’s cell phone..
[19] Contrary to what was stated in the ITO, the police had information from two separate “confidential” sources, that is, known sources whose reliability was capable of being assessed. This was not disclosed to the issuing justice.
[20] The applicant argues that the stated desire of the police in the ITO to identify Tizzy was of critical importance as it constituted a central justification for the commencement of the date range for the search of the contents of the cell phone being May 1, 2017, three months prior to the charge period in the indictment.
[21] The initial withholding by police in the ITO of the fact that it had information from two known sources respecting the identity and possible death of “Tizzy” was exacerbated by the delayed and misleading subsequent disclosure by police and the Crown. This had the potential to undermine the applicant’s ability to have her application under s. 8 determined by the court on reliable evidence. In R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at para. 33 the Supreme Court of Canada observed that if information is of some use to the defence it is relevant, and the determination as to whether it is sufficiently useful to put into evidence should be made by the defence and not the prosecutor.
[22] It is therefore not sufficient for the Crown to argue that the delayed and misleading disclosure, first to the issuing justice and then to the defence, was inconsequential as the applicant may be presumed to know the identity of “Tizzy.”
[23] The applicant correctly does not argue that her right to a fair trial has been compromised. The trial has not commenced, and the delayed and misleading disclosure has been rectified. Moreover, the impact on the applicant went to her ability to proceed with her s. 8 application based upon reliable evidence, and not to the fairness of the trial itself. It is difficult to see how the identity of “Tizzy” and the fact that he is dead would relate to the Crown’s case against the applicant.
[24] The applicant submits that the case falls within the residual category on the basis that the conduct of the police and the Crown served to risk undermining the integrity of the judicial process.
[25] As noted above, in applying the first branch of the test, the question is two-fold, namely 1) whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and 2) whether proceeding with the trial in the face of that conduct would be harmful to the integrity of the justice system.
[26] There is no indication of any risk that the state misconduct, represented by the late and misleading disclosure, is likely to continue in the future. As stated by Moldaver, J. in Piccirilli, ordinarily it would only be found that the carrying forward of the prosecution will offend society’s sense of justice where continuation of the state misconduct is likely. I am unable to find that this is an exceptional case in which the misconduct is so egregious that the mere fact of going forward in light of it will be offensive.
[27] The applicant points to the case of R. v. Spagnoli, 2011 ONSC 4843 (S.C.J.) as an example of a case in which a stay of proceedings was imposed on the residual ground. The conduct of the police in that case included a repeated false statement in an ITO in support of an application for search warrant that the source of information was “anonymous” rather than a “confidential informant.”
[28] It is noted that Hambly J. found at para. 41 five instances of police misconduct which contravened the fundamental notions of justice, undermining the integrity of the judicial process. These included:
(a) a police officer redacting his notes thereby making unavailable to the Crown and to the defence the true source of critical information;
(b) a police officer recording falsely in his notes that the source of the information was anonymous;
(c) the same police officer swearing falsely five times in an ITO that the source of the initial information was anonymous;
(d) the same police officer testifying under oath that if the defence had not discovered the truth he would have continued to lie under oath; and
(e) the failure of senior officers in the police service and the Chief of Police to take disciplinary action against the officers.
[29] At para. 47 Hambly, J. stated:
The function of the police is to enforce the law. In performing this function they gather evidence of the commission of criminal offences. They must disclose truthfully the evidence that they gather to the crown. It is only then that the crown will be in a position to decide whether the law requires that the evidence be disclosed to the defence. Where they fail to do either, this is known by senior officers and no corrective steps are taken, unless the court refuses to hear their evidence, this is an invitation to the police to continue to do so in the future (emphasis added).
[30] At para. 48 Hambly, J. pointed again to the fact that senior officers of the police, including the Chief of Police took no action and concluded “if the court does not refuse to hear the case, this will be an invitation to the police to continue to record in their notes what they choose and to disclose to the crown, and hence to the defence, what they choose.” It was therefore one of the “clearest of cases” justifying a stay.
[31] In my view the situation in the case at bar falls well short of the circumstances that were before Hambly, J. in Spagnoli. Unlike in Spagnoli, corrective steps were taken by the police and Crown in this case, by means of the completion of the disclosure of the true facts which permitted the applicant’s s. 8 application to proceed on a full and accurate record.
[32] This is therefore not an “exceptional” case where the misconduct is so egregious that the mere fact of going forward in light of it will be offensive.
[33] In the absence of any risk that the misconduct is likely to be repeated it cannot be found that the carrying forward of the prosecution will offend society’s sense of justice. The application for a stay therefore fails on the first requirement of the test, namely that prejudice to the integrity of the justice system will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.
[34] Since the application for a stay must fail on the first stage of the applicable test as no prejudice to the integrity of the justice system will be caused by the conduct of the trial, it is not necessary to consider the second stage, namely whether there is an alternative remedy capable of redressing any such prejudice.
[35] As directed by the Supreme Court of Canada in Piccirilli the balancing exercise at the third stage of the test is only required where there is still uncertainty over whether a stay is warranted after stages 1) and 2).
[36] Notwithstanding this, some comments on the balancing exercise are warranted. It is noted at the outset that the impugned conduct may be considered to be serious in that repeated representations were made under oath or affirmation in the ITO that the suspect “Tizzy” was “unidentified” when the police were in fact in possession of identifying information from two independent known sources, and disclosure of the number and nature of the sources to the defence was delayed and initially inaccurate.
[37] However, I find that the disclosure issues respecting “Tizzy” were isolated and did not reflect a systemic or ongoing problem. It is understood that the disclosure in this case has been extensive and voluminous. With the exception of the other issue with the ITO for the search warrant respecting her cell phone, which is addressed by the applicant in her s. 8 application, no other issues respecting incomplete or late disclosure have been brought to the attention of the court. There is no evidence of mala fides on the part of Crown, and although the applicant seeks to draw an inference of bad faith on the part of police, I am unable to find on the record before the court that the police acted in bad faith, rather than being neglectful.
[38] The charges which the applicant faces are very serious and society has an elevated interest in having the charges disposed of on the merits. The granting of a stay would result in the applicant realizing a windfall. The advantages of staying the charges against the applicant, if any, do not outweigh the interest in having the case decided on the merits. In short, the price of a stay of the charges against the applicant is not worth any perceived gain resulting from its imposition.
[39] The application for a stay of the proceedings is therefore dismissed.
(b) Exclusion of Evidence
[40] As indicated, the applicant submits that if the court does not find this to be the “clearest of cases” for a stay under the residual category, the court should order the exclusion of all direct and derivative evidence obtained from the search under warrant of her cell phone.
[41] The Supreme Court of Canada in R. v. Bjelland, 2009 SCC 38 sets out, at para. 24, the test for consideration of the exclusion of evidence under s. 24(1) of the Charter as a remedy for late disclosure, stating that a trial judge should only exclude evidence for late disclosure where:
(a) the late disclosure renders the trial process unfair and the unfairness cannot be remedied through an adjournment and disclosure order; or
(b) where exclusion is necessary to maintain the integrity of the justice system.
[42] As indicated previously, the late and misleading disclosure has now been remedied by the Crown. No further remedy is required. For the reasons set forth above, exclusion is not necessary to maintain the integrity of the justice system. As observed by the majority in Bjelland, the exclusion of evidence impacts on trial fairness from society’s perspective and where admission of the evidence does not otherwise compromise the integrity of the justice system, will not be appropriate and just to exclude the evidence under section 24(1).
[43] The application to exclude all direct and derivative evidence obtained as result of the search of the applicant’s cell phone pursuant to s. 24(1) of the Charter is therefore dismissed.
D.A. Broad J
Date: October 25, 2019