Court File and Parties

COURT FILE NO.: 18-117

DATE: 20191101

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHELDON CAMPBELL Defendant

Counsel: Amber Meiners for the Crown Kevin Kaczmara for Mr. Campbell

HEARD: October 31, 2019

ruling on S. 24(1) Application

boswell j.

THE ISSUES

[1] Mr. Campbell was arrested for drug trafficking on October 4, 2016. As part of the Crown’s disclosure to him, he received a very large cell phone extraction report. But he got it on October 28, 2019, the day the Crown was to commence calling evidence in the trial against him. His lawyer argues that Mr. Campbell is prejudiced and that the appropriate remedy to attenuate that prejudice is to exclude the report from evidence at his trial.

[2] The Crown had earlier disclosed an extraction report, but it is really just a fraction of the full extraction. It includes data “cherry picked” by the officer who forensically examined the phone in question. Defence counsel does not seek to exclude the contents of the report earlier disclosed. Crown counsel intends to tender that report as part of her case in chief. She does not propose to tender any part of the full report just disclosed this week. Her position, however, is that she should be permitted to use the report to cross-examine Mr. Campbell, should he choose to testify.

[3] The court is called upon to determine (1) whether the full extraction report ought to have been disclosed earlier; (2) the extent of any prejudice caused to Mr. Campbell due to the late disclosure; and (3) the appropriate remedy, if any.

OVERVIEW

[4] Mr. Campbell faces a four count indictment. He is charged with possession of cocaine; possession of cocaine for the purpose of trafficking; possession of a prohibited weapon (brass knuckles); and breach of recognizance.

[5] Mr. Campbell’s trial began with jury selection on October 21, 2019. The trial was scheduled to take two weeks to complete. The first week of the trial was essentially dedicated to hearing defence pre-trial applications, including a substantial application to exclude evidence pursuant to s. 24(2) of the Charter and a Garofoli application to challenge a warrant issued to search cell phones seized at the time of Mr. Campbell’s arrest.

[6] On Friday October 25, 2019 I advised counsel that both defence applications were dismissed, with written reasons to follow. The matter was otherwise remanded to Monday October 28, 2019 for the trial proper to begin before the jury.

[7] On the morning of October 28, 2019 defence advised that he had discovered, between October 25 and 28, that he had not received full disclosure from the Crown. In particular, he had not received a full extraction report prepared as a result of a forensic examination of one of the phones seized by the police at the time of Mr. Campbell’s arrest.

[8] Mr. Campbell was arrested in a hotel room in Barrie on October 4, 2019. At the time of his arrest, the police seized, amongst other things, illicit drugs, brass knuckles, weigh scales and five cell phones.

[9] In January 2017 the police obtained a warrant to search the cell phones. An officer of the tech crimes unit extracted the data on the hard drive of one of the phones using a UFED (universal forensic extraction device) and software developed and sold by an Israeli company called Cellebrite. The Cellebrite software generated a report that included more than 4800 text messages, 750 emails, 3300 images and substantial other data, such as tower registrations, a call log, web browsing history and contacts, to list just some of the content.

[10] I have had an opportunity to peruse the contents of the full extraction. The photographs include pictures of Mr. Campbell, but appear to be otherwise irrelevant. The emails appear, for the most part, to be junk emails, though like some of the photographs, they do provide support for the conclusion that the phone belonged to Mr. Campbell. The text messages appear to be a real mixed bag. A great many appear to be in the nature of banter between friends. Some are of a more serious nature. Many others look to be inculpatory.

[11] For reasons best known to the Crown, they did not disclose a copy of the full extraction report to the defence. Instead, a far shorter report was prepared and disclosed. The report, as delivered, included some basic device information, seven emails, one note, one password and 84 text messages.

[12] Crown counsel advised that the text messages included in the disclosed report were selected according to the results of four keyword searches carried out on the full extraction by the forensic examiner. I do not know what the keywords were.

[13] I understand that the disclosure issue was raised by defence counsel over the weekend immediately before October 28, 2019. Crown counsel undertook to get him a copy of the full extraction report as quickly as possible. A flash drive containing the full report was provided prior to lunch on the 28^th. Proceedings were otherwise adjourned until the following day.

THE TIMING OF DISCLOSURE

[14] The Crown’s disclosure obligations are well-settled.

[15] A defendant’s right to disclosure is a principle of fundamental justice and a component of the constitutional right to make full answer and defence. See R. v. Girimonte, 1997 CanLII 1866 (ON CA), 205 O.A.C. 337, 121 C.C.C. (3d) 33 (Ont. C.A.)

[16] The Crown’s disclosure obligations are designed to meet the defendant’s constitutional entitlement to know the case he or she has to meet and to make full answer and defence to the offence charged. The obligations extend to exculpatory as well as inculpatory materials. See R. v. Bottineau, 2005 CanLII 63780 (ON SC), [2005] O.J. No. 4034, at para. 31

[17] In response to a request from the defence, the Crown is required to disclose all relevant material in its possession or control. It matters not whether the Crown intends to call the evidence at trial, nor whether the material even constitutes evidence that would be admissible at a trial. The obligation extends to any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence. R. v. McNeil, 2009 SCC 3, at para. 17; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

[18] While the disclosure obligation is not absolute, there are very few exceptions. “Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession”: R. v. McNeil, as above, at para. 18.

[19] In my view, the full extraction report ought to have been disclosed to the defence. None of its contents appear to be privileged. And one could certainly not say the non-disclosed contents are clearly irrelevant. It is, quite frankly, puzzling why the decision was made to disclose only a fraction of the full extraction.

THE ALLEGED PREJUDICE

[20] Defence counsel’s concern, of course, was that he did not know what was in the full extraction report. He could not determine whether its contents might affect his overall trial strategy, including, but not limited, to whether he would call Mr. Campbell to testify. And given the volume of data in the full extraction report, it was going to take him some considerable time to wade through it.

[21] Counsel’s first request – on the morning of October 28 – was to adjourn the trial. I was not prepared to grant that request for two reasons:

(i) This trial relates to charges that were laid three years ago. An adjournment would add at least several months to that. As R. v. Jordan, 2016 SCC 27, instructs, there are both private and public interests in seeing trials concluded expeditiously. A further delay of this trial would most certainly result in “Jordan” issues and, quite likely, an application to stay proceedings under s. 11(b) of the Charter;

(ii) The particulars of the full extraction report were a huge unknown. In my view, it was necessary to get a sense of the significance of the non-disclosure before any decision could reasonably be made about what, if any, remedial action was appropriate.

[22] The commencement of the trial was adjourned to the following day, to permit defence counsel an opportunity to review the full extraction report. Unfortunately, he could not access it on the flash drive provided. In the result, on day two of the trial we were no further ahead than we had been the day before. I determined that we would commence the trial with my preliminary instructions, the Crown’s opening, and the direct examination of the Crown’s first witness. When those steps were completed – roughly at the morning recess – we adjourned for the day. Crown counsel loaned defence counsel a laptop so that he could spend the balance of the day reviewing the extraction report.

[23] On the third day of the trial, defence counsel had a vehicular mishap while on the way to court. He was ultimately unable to attend. The jury was sent home and asked to return the following day. Counsel, in the result, had the better part of another day to review the recently disclosed report.

[24] By the fourth day of trial, defence counsel had been able to work his way through the content of the full extraction report. But he had not had an opportunity to review it with Mr. Campbell. The prejudice identified by defence counsel is that Mr. Campbell will not know the case he has to meet if the Crown is permitted to cross-examine him on the full extraction report should he elect to testify.

REMEDY

[25] The remedy now sought by Mr. Campbell is the exclusion of the full extraction report.

[26] The relief is sought under s. 24(1) of the Charter which provides as follows:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[27] Motions to exclude evidence for Charter breaches are most often brought under s. 24(2), which expressly provides for exclusion of evidence obtained in a manner that infringed or denied a Charter-protected right, where the admission of the evidence would bring the administration of justice into disrepute.

[28] In the case of the extraction report, the evidence was not obtained in a manner that infringed Mr. Campbell’s Charter rights, so s. 24(2) relief is not available. It is clear, however, that in some circumstances, the exclusion of evidence under s. 24(1) is an available remedy for late disclosure by the Crown. See R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651. It is a remedy to be ordered sparingly and only where a “less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system.” (Bjelland, para. 19).

[29] A pre-requisite to relief under s. 24(1) of the Charter is, of course, the establishment of a Charter breach. The breach typically associated with non-disclosure, or late disclosure, is to the right to make full answer and defence, as implicitly guaranteed by s. 7 of the Charter.

[30] Even where the court is satisfied that a breach has been established, evidence should only be excluded for late disclosure in exceptional cases where:

(i) The late disclosure renders the trial process unfair and the unfairness cannot be attenuated by an adjournment or disclosure order; or,

(ii) Where exclusion is necessary to maintain the integrity of the justice system.

See Bjelland, at para. 24.

[31] In this instance, Mr. Campbell will be unable to make full answer and defence if he does not know the case he has to meet. If the Crown is permitted to cross-examine him on the content of the full extraction report – even if it is not introduced in the Crown’s case – he may be confronted with evidence he was not aware of.

[32] There is, of course, an obvious and immediate alternative to the exclusion of the evidence; one which will enable Mr. Campbell to know the case he has to meet and to be in a position to make full answer and defence. I am referring, of course, to an adjournment.

[33] The real question is not whether an adjournment will attenuate any prejudice caused by the late disclosure. It will. The real question is how long of an adjournment is necessary?

[34] Disclosure of the full extraction report was made on Monday, October 28, 2019. Mr. Campbell has, or could have had, access to the report since then. Even if it made sense for his lawyer to review it independently before reviewing it with him, and I suspect it did, Mr. Campbell will not be called upon to elect whether he wishes to testify until Monday, November 4, 2019. In other words, he will have had a full week to review and consider the content of the full extraction report. It’s not great. But, in my view, it is enough.

[35] The exclusion of the extraction report cannot, in my view, be justified on the basis that it is necessary to maintain the integrity of the justice system. The decision here comes down to an issue of trial fairness.

[36] Mr. Campbell is entitled to a fundamentally fair trial, not a perfect one. The late disclosure is regrettable and has put Mr. Campbell and his counsel under some pressure to come to grips with its contents in relatively short order. But a week is sufficient time to review its contents.

[37] In my view Mr. Campbell is unable to make out a s. 7 breach, and even if he could, exclusion of the extraction report is not justified under s. 24(1) of the Charter.

Boswell J.

Released: November 1, 2019