Her Majesty the Queen v. Aaron Dobbs
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Aaron Dobbs
COUNSEL:
D. Polgar S. Ramalho
TRIAL HEARD: June 22 and 23, 2022
Publication Ban: an order has been made under s. 486.4(2) of the Criminal Code prohibiting the publication or transmission in any way of the identity of the Accused or any information that could identify him.
Section 486.6 (1) of the Code provides: Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
REASONS FOR DECISION ON MISTRIAL APPLICATION
Gambacorta, J.
Overview
1The Accused, Aaron Dobbs, is on trial before me on a two-count indictment. He stands charged with one count of sexual assault against S.N. pursuant to s.271 of the Criminal Code of Canada and one count of breaching a recognizance, pursuant to s.145(5) of the Criminal Code, alleged to have happened between May 24th and 25th, 2020.
2The Crown has called the complainant as its only witness in this trial. In examination in-chief, the complainant made reference to a disclosure witness, her former roommate, P.K. P.K. was interviewed by police and his participation in the investigation was disclosed by the Crown, yet aspects of his statement and a series of text messages he exchanged with the complainant, were subject to Crown redaction.
3Near the end of the cross-examination of the complainant and after the defence lawyer complied with the ruling in Browne v. Dunn (1893) 6 R. 67 (H.L.) and exposed the defence and the likelihood that P.K. would be called as a defence witness, the Crown produced four (4) pages of disclosure, which were previously provided in redacted form.
4I have reviewed the subject disclosure. It is comprised of 190 text messages between the complainant and P.K., the content of which could serve to undermine P.K.’s credibility for having some form of animus towards or motive to testify against the complainant and could form the basis for argument that he is of bad character.
5The Defence brings an application for a mistrial.
Position of the Parties
6The Defence brings this application on the basis of mid-trial disclosure which has impaired the accused’s ability to make full answer and defence. Defence counsel submits that she made strategic choices in the design of her case and this mid-trial disclosure has undermined her cross-examination of the complainant and her client’s entire defence. She contends she made tactical decisions in her approach to cross-examination of the complainant, which cannot be undone or redesigned mid-trial, and impair her ability to continue and call P.K., the anticipated defence witness, without further investigation of the mid-trial disclosure. In the result, she argues that nothing short of a mistrial can remedy the prejudice to her clients’ fair trial rights.
7The Crown’s position is that the messages were redacted because they were deemed irrelevant at the time of initial disclosure and only became relevant when it became apparent that the defence intended to call P.K. as a witness. Further, the Crown argues it is in compliance with its ongoing Stinchcombe disclosure obligation by making the subject disclosure the moment the Crown appreciated the potential relevance of the evidence. The Crown relates the effect of the mid-trial disclosure and the resultant effect to P.K.’s credibility and utility as a potential witness, to a customary trial hazard. She submits that in trial, lawyers must constantly re-assess witness utility and strategy as evidence is called and the trial unfolds, and that this is no different. In fact, she argues the defence has had the benefit of forewarning.
8I am further advised by the Crown, that after the Court was alerted to the defence application for mistrial and adjourned for argument, Crown counsel emailed the defence with an offer to not rely on the mid-trial disclosure/text messages in cross-examination of P.K., in exchange for abandonment of the defence mistrial application. The Crown resists the application and maintains there are other remedies available short of a mistrial to remedy any prejudice to the accused, including an adjournment or exclusion of the evidence, as offered.
9The Defence submits the Crown’s proposal is unhelpful and cannot remedy the prejudice occasioned by the mid-trial disclosure because the defendant can no longer rely on the witness nor submit that the Court should prefer his evidence to the complainants’, given the nature of the text messages. She argues to do so would be disingenuous and would place her in an ethical dilemma.
Law & Analysis
10While it is trite to review the Crown’s disclosure obligation under Stinchcombe, I find it is necessary to clarify the scope of that obligation based on the position of the Crown.
11The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation, which are in its possession, are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. The general principle is that information should not be withheld if there is a reasonable possibility that withholding will impair the right of the accused to make full answer and defence. The absolute withholding of information, which is relevant to the defence, can only be justified on the basis of privilege. See R. v. Stinchcombe [1991] 3. S.C.R. 326.
12The disclosure at issue formed part of the initial disclosure package but was completely redacted or withheld by the Crown because it was deemed irrelevant on Crown review. The Crown submits that it complied with its “ongoing disclosure obligation” by providing the unredacted disclosure the minute it became aware the text messages were relevant to the defence and, moreover, had utility in cross-examination for the Crown.
13What’s problematic with that submission is that the mid-trial disclosure at issue here is not the type of new information or evidence that the ongoing disclosure obligation is intended to address. It is not fresh evidence, it was part of the redacted initial disclosure.
14Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. Subject to Crown discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, whether inculpatory or exculpatory. All relevant statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses. This includes statements, notes and all information in the prosecution’s possession relating to any relevant evidence the person could give. See Stinchcombe.
15The right of disclosure of all relevant material has a broad scope and includes material which may have only marginal value to the ultimate issue. See R. v. Dixon, [1998] 1 S.C.R. para. 23.
16Relevant information is any information that could affect the case against the accused and includes information that might shed light on the unfolding events or might have bearing on a witnesses’ credibility: See R. v. Chaplin, [1995] 1 S.C.R. 727.
17As was stated in R. v. Levers, 2012 QCCS 6091 [affirmed in R. v. Mataev et al., 2013 QCCS 1848 at para.16]:
“The obligation to disclose is not absolute. The Crown maintains discretion to withhold information that is clearly irrelevant, subject to a rule of privilege, that might impede completion of an ongoing investigation or that is necessary to protect a witness”.
18While the obligation to disclose is not absolute and the determination of relevance is subject to Crown discretion, where there is a doubt, the Crown must err on the side of inclusion.
19Here, P.K. was a witness involved in this investigation and was listed as a potential Crown witness. While some of his communications with the complainant, derived from an extraction of her cell phone were provided to defence in the initial disclosure package, the approximately nine pages of subject text messages were not. Mid-trial, the Crown saw the potential use/relevance of the messages to impeach his credibility if called by the defence and disclosed them. That very action highlights their relevance to the case against the accused.
20I do not accept that the relevance of the messages could only be identified by the Crown in the cross-examination of the complainant and appeared previously clearly irrelevant. I arrive at this conclusion in having also reviewed the video interview of P.K. which formed part of initial disclosure and was tendered by the Crown on this voir dire. It contains the foundation for the Brown v. Dunn suggestions put to the complainant in cross-examination, which only serves to further highlight the potential relevance of the subject text messages to the defence case at the time of initial Crown review and disclosure.
21I find the subject text messages to be relevant to a judge’s assessment of P.K.’s credibility. The fact that the text messages could possibly have been relevant to the defence case, despite their lack of utility or relevance to the Crown, required them to be disclosed ab initio. To rule otherwise, would undermine principles established by Stinchcombe and place a burden on the accused to disclose their case in advance to justify the relevance of being entitled to evidence in the possession of the Crown.
22Further, I have reviewed the subject text messages and find they do not attract or violate any rules of privilege which would justify the Crown withholding them.
23In the result, I find the mid-trial disclosure was improperly (incorrectly, but not nefariously) withheld by the Crown.
Does the late-midtrial disclosure affect the overall fairness of the trial?
24The Crown argues that any prejudice to accused is mitigated by the defence’s failure to exercise due diligence in the pursuit of the redacted text messages. The Crown maintains the record shows (exhibits filed on this voir dire) that the defence should have been able to discern that the redacted messages were messages between the witness P.K. and the complainant and should or could have challenged the Crown discretion to redact for irrelevancy at an earlier stage.
25I accept defence counsel’s submission that she was informed by the Crown that the messages were irrelevant and relied on the obligation of the Crown to act in good faith in the exercise of its discretion. This is not a case where defence made a tactical decision not to seek disclosure prior to trial for the purpose of presenting a non-disclosure application mid-trial. There is no evidence defence counsel was aware of the nature of the contents of the redacted messages. The fact is the Crown knew of the nature and content of the messages in its possession to be able to produce them immediately and within the confines of the cross-examination. Accordingly, I reject this argument.
26I also reject the Crown’s submission that an appropriate remedy to mitigate the prejudice from the withheld/late disclosure may be to proceed to the exclusion of the subject evidence. Trials are searches for the truth, or, said another way, they are fact-finding missions. To assess P.K.’s credibility to the exclusion of known evidence central and possibly damaging to that very issue, or on a sanitized record would do violence to that very process.
27Further, I accept defence counsel’s submission that the withholding of the subject disclosure caused the accused irremediable prejudice. I accept her submission that the timing has impacted the accused’s ability to make full answer and defence and renders continuation of the trial unfair.
28I accept her submission that had she had the disclosure in advance of trial she would have taken steps to investigate it and possibly change her tactical approach to the cross-examination of the complainant and redesign her overall strategy in defence. As stated by Sopinka J. in R. v. Egger, [1993] 2 S.C.R. 451:
“the disclosure of all information reasonably capable of affecting an accused’s ability to make full answer and defence must be done early enough to leave the accused adequate time to take any steps he or she is expected to take that affect or may affect such right”.
29I agree with defence counsel that to expect the defence to re-imagine and re-design their case at this late stage (essentially at the completion of the Crown’s case) would be unfair.
30In short, the test on a mistrial is whether there is a real danger of prejudice to the accused or a danger of a miscarriage of justice: See R. v. L.A.T., [1993] 14 O.R. (3d) 378 (Ont. C.A).
31I am mindful that a mistrial is a remedy of last resort, to be granted in the clearest of cases where no remedy short of that relief will address the harm occasioned. See R. v. Toutissani, (2007) ONCA 773.
32Counsel have provided me with many cases that I have read and considered but will not review here, as many of those judgments stand for general principles to be considered in mistrial cases and many of them relate to post-conviction treatment by appellate courts.
33The burden of proof on this mistrial application rests with the petitioners, here the defence, to show on a balance of probabilities that the right to full answer and defence was impaired as a result of the failure to disclose. See R. v. Dixon. Therein, Justice Cory held that:
“the burden is discharged where an accused demonstrates that there is a reasonable possibility the non-disclosure affected the outcome of the trial [criteria on appeal] or the overall fairness of the trial [as is contended here].”
34Based on the foregoing reasons, I find that the defence has met its burden and demonstrated that the nature and timing of disclosure that could have been used to impeach the credibility of one of their witnesses and could have assisted the defence in its pre-trial investigations, preparations or tactical decisions, has impaired the accused’s right to full answer and defence and has affected the overall fairness of this trial.
35Given my findings, I do not see how an adjournment can mitigate the prejudice caused to the accused and I find that there is less prejudice to the Crown in declaring a mistrial then would be to the accused in exercising the remedy of an adjournment. Re-designing and re-imagining a defence based on what transpired in this case should not and cannot fairly occur at the threshold of the close of the Crown’s case.
36Accordingly, a mistrial is declared.
G.B. Gambacorta, J.
Released: 2022-06-28
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Aaron Dobbs
REASONS FOR DECISION
Gambacorta, J.
Released: June 28, 2022