R v SEL, 2012 ABQB 71

Court of Queen ’ s Bench of Alberta Citation: R v SEL, 2012 ABQB 71 Date: 20120130 Docket: 090794306Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - SEL Accused Restriction on Publication: By Court Order, information that may identify the Complainant described in this judgment as S.L. may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.5.

Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice S.D. Hillier _______________________________________________________

I. Introduction [ 1 ] In the course of this trial, Defence called an expert witness to speak to a number of issues related to the assessment of injuries sustained by an infant and for which the father was charged with aggravated assault. In the course of cross examination, Crown referred to transcripts of prior trials in which the same expert testified. Defence objected to the use of such material as it was not disclosed prior to trial and has filed a Charter Motion for a stay of proceedings. [ 2 ] Summarized briefly, Defence urges that non-disclosure of transcripts violates the right to make full answer and defence under

Section 7 and that the adjournment and delay amounts to unreasonable delay in violation of

Section 11(

b) of the Charter . Crown responds that transcripts are not matters for disclosure as fruits of the investigation and in any event, the adjournment is sufficient to meet any alleged prejudice. II. Background [ 3 ] S.E.L. is charged with one count of aggravated assault, contrary to Criminal Code , R.S.C. 1985, c. C-46, s. 268. The charge is in connection with events arising in and around June 30, 2009, and relates to the health and status of the infant S.L.

The Accused is the biological father of S.L. and has been a stay at home parent for this family of four children since he was laid off from regular employment at end of October, 2008. [ 4 ] On the evening of June 30, 2009, S.L. exhibited signs of distress, was taken to the Stollery Children ’ s Hospital, and there examined by two physicians: Dr. Dibden, a pediatric specialist, and Dr. Lewis, a neuro-ophthalmologist. They concluded from their observations of the infant that she had been injured by shaking motions, what they called “ rapid acceleration/deceleration rotation movements ” .

Following a police investigation Mr. S.E.L. was charged with aggravated assault of S.L. on July 1, 2009. [ 5 ] A preliminary hearing was held in July of 2010. Mr. S.E.L. ’ s trial by judge alone began on June 20, 2011, and was anticipated to continue for approximately two weeks. Both the expert physicians who examined S.L. were called as witnesses by the Crown and testified. On June 29, 2011 the Defence called Dr. Janice J. Ophoven to critique the evidence of the Crown ’ s medical expert witnesses and to provide her own perspective of the infant ’ s medical circumstances. Dr.

Ophoven is a pediatric forensic pathologist, pediatric pathologist, and pathological anatomist with experience and expertise in detection of child abuse. [ 6 ] The Crown did not dispute Dr. Ophoven ’ s credentials and expertise during the initial certification process of the trial but reserved the right to ask “ some questions about her background ” . Dr. Ophoven ’ s examination in chief was completed without interruption in less than a half day. However, during cross-examination that same day the Crown challenged Dr. Ophoven ’ s impartiality as an medical expert and her credibility as a witness.

That challenge included reference to a transcript of evidence given by Dr. Ophoven in a Minnesota trial of Nicole Marie Beecroft [the “ Beecroft transcript ” ]. [ 7 ] Defence counsel at this point objected, noting that the Crown had not disclosed to the Defence the Beecroft transcript and other materials that were apparently in the Crown ’ s possession that related to Dr. Ophoven. Crown counsel denied it had an obligation to disclose these kinds of materials in advance but did give a copy to Defence at that time. Discussions between counsel were unable to resolve the dispute.

Both counsel agreed the original estimate on the duration of the trial was no longer valid, in part because significantly more time would be required to complete Dr. Ophoven ’ s testimony. In light of this problem Dr. Ophoven ’ s testimony was halted by agreement and the matter adjourned to allow the parties to prepare submissions on Crown ’ s obligation to disclose the Beecroft transcript and any analogous material. [ 8 ] On December 20, 2011 the Accused filed a formal brief seeking a stay of proceedings on the basis of the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , [the “ Charter ” ] ss. 7, 11(b), and 24. This decision follows from the January 23, 2012 oral submissions on this question.

III. The Parties’ Positions A. The Accused [9] The Accused argues the Beecroft transcript was relevant to the Defence because it allegedly indicated that Dr. Ophoven, akey Defence witness, had deliberately misled another court about her qualifications. The Accused argues that materials in the possessionof the Crown that may be used to challenge the credibility of an expert witness must be disclosed as part of the Crown’s duty [the“Stinchcombe obligation”] to disclose to a defence relevant information it holds: R. v. Stinchcombe, (SCC), [1991] 3S.C.R. 326, 68 C.C.C. (3d).

The transcript is a factual rather than privileged “work product” material. [10] Transcripts similar to those in dispute had been specifically considered and disclosure of this kind ordered in R. v. R.A.S.,[1996] O.J. No. 4583 (QL) (Ont. Ct. (Gen. Div.)). That failure to meet the Stinchcombe requirements is a breach of the Accused’sCharter, s. 7 rights. [11] The Accused argues a two-fold consequence arises from this breach. First, it has impaired the right of the Accused to make afull answer and defence to the Crown case. The Accused would have taken a different approach to the testimony of Dr.

Ophoven, andnow has no way to change its tactical choices. Second, the June 29, 2011 adjournment and subsequent eight month delay of completionof the trial would not have been necessary if the Crown had been diligent and disclosed the Beecroft transcript before trial. Mr. S.E.L.has suffered an unfair delay in resolution of the criminal charges and the delay is one that breaches his s. 11(

b) Charter right to a timelytrial. Applying R. v. Morin, (SCC), [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1, this court should stay the charge against theAccused. B. The Crown [12] The Crown denies that its conduct has breached its Charter, s. 7 disclosure obligation. It characterizes the Beecroft transcriptas not being an element of the state’s “fruits of the investigation”. Instead, the Crown distinguishes evidence such as interview transcriptsthat relate to expert witnesses and what might be called ‘ordinary’ witnesses. Further, the Crown questions how the prior testimony incourt by an expert would be different from, for example, a published

article or book by that expert, neither of which would requiredisclosure by the Crown. [13] The Crown observes the R. v. R.A.S. decision has not been followed by any court, and argues R. v. R.A.S. misapplies theprinciples in R. v. Stinchcombe, specifically by a mistaken approach to the scope of “the fruits of the investigation”. [14] Crown counsel explains the Beecroft transcript was in its possession prior to Dr. Ophoven’s cross-examination, but that itssubstance and potential application only occurred to him during his preparation for the final day of evidence.

Further, once the Beecrofttranscript was disclosed in cross-examination the Accused could have addressed that evidence in its re-direct. Crown counsel, inretrospect, now suggests that the adjournment to 2012 was likely unnecessary and that Dr. Ophoven’s testimony could have resumed andbeen completed in the next few days. [15] If I conclude that the Accused’s s. 7 rights were breached then the Crown suggests that breach was not significant, and thatthe Accused can cure any injury to its ability to respond to the Crown’s case with questions to Dr.

Ophoven during re-direct, or by thetestimony of some alternative expert witness. [16] Any trial delay that has resulted from a s. 7 breach is not one that warrants a stay of the charge against Mr. S.E.L.. TheCrown argues that R. v. Morin provides benchmarks for a proceeding that is simpler than the case against the Accused. It says theDefence has contributed to the time required to bring this matter to trial, and otherwise the delays to date have good explanations.

TheAccused’s rights have been minimally affected as he remains on pre-trial release and has had restrictions on his access to his familyreduced and ultimately eliminated.

IV. Crown Disclosure Obligations [17] The general requirement that the Crown disclose relevant information to an accused was established in R. v. Stinchcombeand has undergone subsequent development in other cases, most recently R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, R. v. Basi, 2009SCC 52, [2009] 3 S.C.R. 389, and R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651. The broad and general nature of that obligation iswell established. Sopinka J. described the general threshold for disclosure in R. v.

Stinchcombe at p. 340 in this manner: ... the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of informationwill impair the right of the accused to make full answer and defence ... [Emphasis added.] An alternative formula used to describe the limits of the Crown’s obligation is that it need not disclose information that is “clearlyirrelevant” (pp. 336, 339). [18] More recently in R. v.

McNeil, at para. 17 the test has been restated as: ... any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to makefull answer and defence. [Emphasis added.] The underlying measure as expressed by the R. v. McNeil wording arguably expands the Crown’s obligation at least somewhat. [19] Exceptions to this principle are narrow. Sopinka J. again in R. v.

Stinchcombe at p. 336 identifies two: ... withholding the identity of persons to protect them from harassment or injury, or to enforce the privilege relating to informers. [20] As additional exceptions, information may be kept confidential to allow completion of an investigation: R. v. Egger, (SCC), [1993] 2 S.C.R. 451, 103 D.L.R. (4th) 678. Other exceptions potentially arise as a consequence of legislation such asthe Canada Evidence Act, R.S.C. 1985, c. C-5 (for example s. 38.06) and the Criminal Code, R.S.C. 1985, c. C-46 (for example ss. 278.1to 278.91). See also R. v.

McNeil, at para. 17. [21] Quite unlike these narrow exceptions for specific purposes, the Crown argues that a distinction should be made betweeninformation held by the Crown that relates to expert vs. ‘common’ witnesses. It is clear that the Stinchcombe disclosure obligationextends to information that relates to witnesses. In R. v.

Stinchcombe, Justice Sopinka at p. 335 explicitly indicates that one function ofCrown disclosure is to prevent ‘ambush’ cross-examination of witnesses: Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conformwith information in the Crown's possession. For example, a witness may change his or her testimony to conform with a previousstatement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject tothis criticism.

There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. Thewitness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to thewitness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings whichthe prosecutor holds close to the vest.

The principle has been accepted that the search for truth is advanced rather than retarded bydisclosure of all relevant material. [Emphasis added.] [22] Further indication of the scope of ‘relevant information’ is found in R. v. O’Connor, (SCC), [1995] 4 S.C.R.411, 130 D.L.R. (4th) 235, where at para. 22 Lamer and Sopinka. JJ. observe that:

22 In the disclosure context, the meaning of "relevance" is expressed in terms of whether the information may be useful to thedefence (see Egger, supra, at p. 467, and Chaplin, supra, at p. 740). In the context of production, the test of relevance should be higher:the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial orthe competence of a witness to testify.

When we speak of relevance to "an issue at trial", we are referring not only to evidence that maybe probative to the material issues in the case (i.e. the unfolding of events) but also to evidence relating to the credibility of witnesses andto the reliability of other evidence in the case. See R. v. R. (L.), (1995), (ON CA), 39 C.R. (4th) 390 (Ont. C.A.), at p.398. [Emphasis added.] [23] The Supreme Court of Canada accords no special category for expert witnesses as being subject to a lower disclosureobligation. In R. v. Taillefer; R. v.

Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307 the court considered whether a failure to disclose wouldjeopardize trial fairness. At para. 105 it reviewed a prior inconsistent statement by a Crown expert, and concluded failure to disclose didaffect trial fairness: 105 Beauregard J.A. was also of the opinion that the inconsistency between the testimony given by the dentist, Dr. Dorion, at trialand the statement he had made earlier to a police officer in support of an information to obtain a search warrant did not destroy the valueof his testimony (para. 81).

Again, for the purposes of applying the Dixon test, in order to hold that the failure to disclose had a possibleimpact on the overall fairness of the trial, it would have been sufficient to find that there was a reasonable possibility that the accusedcould use the prior declaration by the expert witness to impeach his credibility. [Emphasis added.] [24] Although not yet reported in any appellate decisions, trial courts have extended the Stinchcombe disclosure obligation toinformation that relates to expert witnesses. Bovard J. concluded in R. v.

Gardashnik, 2011 ONCJ 256, 14 M.V.R. (6th) 299 that theCrown has a Stinchcombe obligation to disclose information that relates to the qualifications of a person the Crown advances as anexpert (paras. 33, 37). As noted, R. v. R.A.S. similarly addressed an alleged disclosure breach affecting experts called by defence; StongJ. concluded that the Crown must produce “a dossier” of materials accumulated by the Crown to assist in cross-examination of a defenceexpert witness.

That dossier included transcripts of the expert’s testimony in other court proceedings (para. 2), as well as technicalmaterials relating to the witness’ area of expertise. [25] As here, the Crown argued that it need not produce these materials because the dossier was not information flowing from itsinvestigation, and further the materials were known to the witness: para. 7. Justice Stong rejected both arguments: 9 ... It would be unfair to require Dr.

Bray to give evidence without knowing with what she would be confronted with.(sic) Whatmay be contradictory to the untrained eye may very well not be contradictory to a qualified professional or a person qualified as an expertwitness. It would be unfair to the trier of fact to be left without a witness who, having been so qualified as an expert witness, would notbe fully aware of and fully prepared to meet any of the questions that could be put to her in this case by either counsel.

Although it maytake away a substantial advantage to the cross-examiner in this case, not only is it fair to the witness but it is required by the trier of factthat that witness be well versed in the areas in which in this case she is going to be cross-examined or examined in-chief.

It is essentialfor the search for truth that a trap not be laid by allowing that witness to testify without the benefit of seeing "contradictory writingswhich the prosecutor holds close to the vest". ... [Emphasis added.] [26] Crown urges that the first qualifier of what flows from the investigation is supported by numerous references in Stinchcombeand later cases to the “fruits of the investigation”. Admittedly that phrase is used as a convenient label and excludes clearly privilegednotes and other exceptions. But it is not restricted to only what police discover in their formal investigation.

As part of the right to makefull answer and defence, it extends to information to the Crown that may possibly be relevant, including to an assessment of witnesscredibility. [27] Given that Stinchcombe disclosure clearly extends to evidence that relates to witness credibility, including at least Crownexpert witnesses, I do not agree with Crown’s assertion that Justice Stong erred in extending that obligation to information that relates todefence experts.

On a principled basis the same considerations of fairness and preparation apply to all witnesses, even if a defencewitness could be presumed to have some awareness of what they have said in other proceedings. [28] My conclusion is that evidence that relates to the credibility and reliability of both Crown (R. v. Gardashnik) and Defenceexpert witnesses (R. v. R.A.S.) is subject to Stinchcombe disclosure. The Supreme Court of Canada does not distinguish expert and‘common’ witnesses in R. v. Stinchcombe and R. v. O’Connor. In fact, rather explicitly in R. v. Taillefer; R. v.

Duguay, at para. 105 itconcludes that an unfair trial can occur as a consequence of a failure to disclose a prior statement by an expert witness “... to impeach his

credibility.” [29] Turning to the specific circumstances, the Crown acknowledges its intention to use the Beecroft transcript to challenge thecredibility of Dr. Ophoven, specifically to assert that she overstated her forensic experience. That clearly qualifies as a “... priordeclaration by the expert witness to impeach [his or her] credibility.”: R. v. Taillefer; R. v. Duguay, at para. 105. Information that relatesto the credibility of a witness is relevant.

Therefore there is a reasonable possibility that possession of the Beecroft transcript may haveassisted the Accused in his exercise of the right to make full answer and defence. [30] In light of the Supreme Court of Canada’s instructions in R. v. Carosella, (SCC), [1997] 1 S.C.R. 80 atpara. 26, 142 D.L.R. (4th) 595 and R. v.

La, (SCC), [1997] 2 S.C.R. 680 at para. 23, 148 D.L.R. (4th) 608, I thereforeconclude that the Crown breached its Charter, s. 7 Stinchcombe disclosure obligation when it did not disclose the Beecroft transcript tothe Defence within a reasonable time after receiving formal notice in May 2011. [31] Since the obligation to disclose relevant information continues throughout the trial, the Crown’s obligation to disclose theBeecroft transcript crystalized at the point the Crown became aware that the Beecroft transcript was potentially relevant to Dr.Ophoven’s credibility.

Crown counsel states that it became apparent before June 29, 2011 when Dr. Ophoven began her testimony. [32] There are two other auxiliary arguments by the Crown that warrant comment. First, there was a suggestion that the transcriptwas a “work product” and therefore privileged. The Accused notes the scope of “work product privilege” materials is examined in R. v.Card, 2002 ABQB 537 at paras. 18-21, 307 A.R. 277 and R. v. Chan, 2002 ABQB 287 at paras. 53-65, 307 A.R. 232 and asserts that thetranscript is “factual information” that falls outside the work product definition. I agree. At paras. 18-19 in R. v.

Card, Perras J. quotes R.v. Chan and describes “work product” this way: Work product generally includes such materials as Crown counsel's notes and memoranda on file, correspondence, Crown counsel'sopinions, and trial strategy. ... Work product is usually in the form of written notes or material that involves thought processes or considerations of Crown counsel inthe preparation of its case. In other words the product is the result of an analysis of the mind. Work product, however, does not include factual information, and any new facts or facts inconsistent with previously disclosed factsmust be disclosed ...

The Beecroft transcript clearly does not belong in the “work product” category; it does not represent ‘ideas’ or ‘analysis’ by the Crown.Having reached that conclusion, I am satisfied that the Crown had an honest but mistaken belief that his review and use of the Beecrofttranscript was a part of his trial work preparation; as such, this breach was not an attempt to engage in ‘trial by ambush’. [33] The Crown questions whether this rule should extend to articles or materials prepared by an expert witness that are in theCrown’s possession. R. v.

R.A.S. suggests disclosure may extend to some technical materials: para. 10. On this point, some would arguethat sworn transcripts are not the same as academic publications. I will not investigate this issue but restrict my comments to any relevant “... prior declaration by the expert witness ...” identified in R. v. Taillefer; R. v. Duguay. As I have stated, the Beecroft transcript clearlyfalls within that characterization; I am not dissuaded from that conclusion by analogy to written publications, which are best left to beaddressed on their specific facts. [34] Given my conclusion that Mr.

S.E.L.’s Charter, s. 7 rights were breached by the Crown’s failure to disclose the Beecrofttranscript prior to Dr. Ophoven’s testimony, I now will examine what remedy is appropriate. V. Remedy

[35] The Accused takes the position that, as a consequence of the Crown’s untimely disclosure, he has been injured in two ways: 1. the right to argue his case in full has been unfairly hampered, and 2. the conclusion of the trial has, without good reason, been further delayed a total of eight months from the beginning of July, 2011to late February, 2012. [36] Defence seeks to stay the charge against him because the s. 7 disclosure breach has caused trial delay of a degree that alsobreaches the Accused’s Charter, s. 11(

b) right “to be tried within a reasonable time”. [37]

Section 24 of the Charter provides a court with the authority to order a remedy where that court has identified a breach of aperson’s protected rights: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [38] Like other aspects of the Charter, this authority should be given a generous and expansive

interpretation: Doucet-Boudreauv. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 23, [2003] 3 S.C.R. 3 [“Doucet-Boudreau”]; R. v. 974649 Ontario Inc.,2001 SCC 81 at para. 19, [2001] 3 S.C.R. 575. Iacobucci and Arbour JJ. in Doucet-Boudreau at para. 25 explain the s. 24(1) remedyauthority must be used in a manner that is responsive and effective: 25 Purposive

interpretation means that remedies provisions must be interpreted in a way that provides "a full, effective andmeaningful remedy for Charter violations" since "a right, no matter how expansive in theory, is only as meaningful as the remedyprovided for its breach" (Dunedin, supra, at paras. 19-20). A purposive approach to remedies in a Charter context gives modern vitalityto the ancient maxim ubi jus, ibi remedium: where there is a right, there must be a remedy. More specifically, a purposive approach toremedies requires at least two things.

First, the purpose of the right being protected must be promoted: courts must craft responsiveremedies. Second, the purpose of the remedies provision must be promoted: courts must craft effective remedies. [Underlining and italicsin original.] [39] In short, any remedy that I order must respond to the s. 7 (and alleged s. 11(

b) breach) in a manner that addresses the harmthat arises as a consequence of the Crown’s misconduct. [40] That said, the Supreme Court of Canada has also made clear that the s. 24(1) remedy authority should not be applied in a‘cookie cutter’ manner, so that a certain kind of misconduct always leads to a particular remedy: Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863 at 966, 29 D.L.R. (4th) 161.

Rather, a judge should craft a remedy that is appropriate for the circumstances. [41] Although the court may stay criminal charges against an accused person in response to a Charter breach, this is anextraordinary remedy that is appropriate only in the clearest of cases. In R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411 at468, 130 D.L.R. (4th) 235, L’Heureux-Dubé J. stated that: It must always be remembered that a stay of proceedings is only appropriate in the clearest of cases, where the prejudice to the accused'sright to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicialsystem if the prosecution were continued. [Emphasis added.] [42] Either consequence may justify a stay: R. v. Carosella, (SCC), [1997] 1 S.C.R. 80, 142 D.L.R. (4th) 595; R.v. Rahey, (SCC), [1987] 1 S.C.R. 588 at 615, 78 N.S.R. (2d) 183.

A. Breach of s. 11(

b) Right to a Timely Trial [43] I will start first with the question of whether the Accused’s Charter, s. 11(

b) right has been breached. The Accused has theobligation to prove a Charter breach of this kind on a balance of probabilities. Based on the approach taken in R. v. Smith, (SCC), [1989] 2 S.C.R. 1120, 52 C.C.C. (3d) 97 and R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, 74 D.L.R. (4th) 355,the Supreme Court of Canada in R. v. Morin at para. 26 summarizes the test for whether a delay breaches that right, having regard to anumber of factors: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. [44] Justice Sopinka then describes evaluation of delay as a balancing exercise: The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the otherfactors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, accountmust be taken of the interests which s. 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period to bescrutinized is the time elapsed from the date of the charge to the end of the trial. … The length of this period may be shortened bysubtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to theinterests s. 11(

b) seeks to protect, the explanation for the delay and the prejudice to the accused. 1. Length of the Delay [45] The length of the delay is the time from when a person is charged to the end of the trial. At present this trial is expected toconclude 32 months after Mr. S.E.L. was charged. The Accused points out that in R. v.

Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 a delayof 30 month in a sexual assault trial warranted a stay of the charges. [46] While the 32 month delay here is a significant period, I note this is a proceeding that had a full preliminary hearing, involvesserious charges, expert medical evidence and sensitive testimony. The trial, before judge only, was expected to take two weeks. Unlikethe proceeding in R. v. Godin, this is not a particularly simple case. Although a matter of concern, the 32 month period does notnecessarily exceed that which is reasonable in these circumstances. 2.

Waiver of Time Periods [47] It is agreed by the parties that the Defence did not waive his rights under Charter, s. 11(

b) for any delay, although there doesappear to have been a few months lost due to mis-communication which needs to be specifically addressed. 3. Reasons for the Delay

[ 48 ] Any trial has some inherent time requirements. Moreover an accused cannot complain about delay that is, essentially, his own fault. The Crown and Accused dispute the cause of certain delays. In light of my conclusion on the Stinchcombe disclosure breach there is no question that the 8 month delay from late June 2011 to February 2012 is solely the responsibility of the Crown. Crown ’ s submissions that, in retrospect, the delay was unnecessary are unhelpful.

So too the Crown is responsible for a two month postponement of the preliminary inquiry. [ 49 ] The Crown argues that some of the delays associated with pre-trial disclosure must be attributed to the Defence and how it received evidence. From my review, the Defence appears to have requested disclosure it had already received, which resulted in a bit less than three month delay, as counsel has acknowledged during argument. [ 50 ] Otherwise, the majority of the pre-trial time is a reflection of the demands on the system and the inherent complexities of this proceeding.

I therefore conclude that, while Crown is solely responsible for certain aspects of the delay, that too does not mandate a stay of the charge. 4. Prejudice to the Accused [ 51 ] The Accused says he has experienced the following prejudice: 1. He argues that his ability to fully respond to the Crown ’ s case has been adversely affected in that the manner the Defence prepared and conducted its examination-in-chief of the expert may have varied if the Defence had been aware of the Beecroft transcript. Dr. Ophoven would have been prepared as a witness in a different manner.

The Accused says key decisions in planning the Defence case can no longer be revisited, and the s. 7 disclosure breach has prejudiced his ability to respond to the Crown ’ s case. 2. Dr. Ophoven ’ s testimony has been split into two components across an eight month divide, and that divided and temporally distant testimony cannot be as effective as if the pre-breach testimony had continued without delay. 3. The interrupted expert testimony has caused the Accused to incur additional costs. 4.

The delay in completion of the trial has meant continued stress, social stigma and has extended the period in which the Accused had his actions restricted by his pre-trial judicial release conditions. [ 52 ] In the Crown ’ s submission any disruption to or reduced effectiveness of Dr. Ophoven ’ s testimony can be addressed via further questioning by Defence counsel. Alternatively, the eight month period since disclosure is sufficient for the Defence to have retained an alternative expert witness.

No costs are warranted [ 53 ] The Crown notes further that the majority of the Accused ’ s judicial release conditions, particularly those that restrict his contact to his family, have been lifted by agreement. Since July 2011 the terms of judicial interim release have required that he keep the peace and be of good behaviour, not leave Alberta without consent, provide notice if he changes his residence or job, and seek or maintain employment or education. The Crown suggests these are modest restrictions. [ 54 ] There is no question that any delay can impede and potentially deny justice. In R. v.

Godin , Justice Cromwell at para. 40 cites Justice McLachlin ’ s (as she then was) comment in R. v. Morin at p. 810 that: [w]hen trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.

[ 55 ] Mr. S.E.L. ’ s rights to liberty and security have clearly been affected, but I note that he is not in detention and that during the eight month delay period his activities have been minimally restricted. That does not obviate the stress and stigma associated with defending a serious offense of aggravated assault of a child. There are costs, personal and financial, which have been incurred. [ 56 ] However, R. v.

O ’ Connor instructs that a stay of criminal proceedings is appropriate when a court cannot take alternative steps to address the effect of a Charter breach on a person ’ s ability to defend themselves in court. That means I need to investigate whether some other remedy can cure the prejudice to the Accused that flows from the Stinchcombe disclosure Charter , s. 7 breach. [ 57 ] The remedy of a stay does not dwell on past misconduct but looks to the future. The weight of appellate authority is to the effect that where a fair trial is possible despite delayed disclosure, a stay is inappropriate.

A stay should only be granted where the conduct surrounding the non-disclosure is so egregious as to bring the administration of justice into disrepute, such that the seriousness of the breach outweighs the interests of society and individuals in the determination of guilt or innocence: R. v. Taillefer; R. v. Duguay at paras. 120-121 ; R. v. Wood , 2006 ABCA 343 at para. 59 , 397 A.R. 389 . B.

A Remedy for the Incomplete Stinchcombe Disclosure [ 58 ] To the extent that there has been disruption of presentation of the defence of the Accused, I find that the interests of the state in a trial on this charge of aggravated assault of an infant outweigh any such prejudice. The circumstances simply do not meet the exceptional needs as would lead to a stay of proceedings because other means are available and responsive to the nature of the untimely disclosure. [ 59 ] The Accused ’ s chief complaint is that the s. 7 breach either reduces or negates the effect of Dr. Ophoven ’ s testimony.

The Charter , s. 24(1) remedy authority is broad, flexible, and purposive.

In order to redress the prejudice to the Accused ’ s right to fully answer to and defend against his alleged misconduct, effective measures are required that will neutralize the negative effect of the Stinchcombe non-disclosure on important defence evidence. [ 60 ] After full consideration, including the without prejudice submissions of counsel at the invitation of the Court, I have concluded that the following directives provide proper remedy of the breach: 1. the Defence is entitled but not required to re-open his examination-in-chief of Dr.

Ophoven and obtain her testimony on any matters of relevance to be broadly construed by this court, after which the Crown will re-commence its cross-examination; 2. as an alternative to the point 1, the Accused may apply to expunge the testimony of Dr.

Ophoven as a witness, in which event I will disregard all0 aspects of her evidence and all thrown away costs related to the witness as determined by the Court shall be borne by the Crown; 3. the Accused may introduce evidence from other expert witnesses, provided he meets the Criminal Code , s. 657.3 requirements for presentation of expert testimony, the costs of which testimony may be submitted for review by the Court as to what, if any portion should be borne by the Crown; 4. in order to meet the time requirements for recommencement February 27 to 29, 2012, Defence is entitled to have any remaining evidence provided by video-link upon notice to the Court and to the Crown; 5. if Defence does maintain the evidence of Dr.

Ophoven, the Crown is restricted in its cross-examination to the use of only those transcripts that have been previously disclosed to Defence; and

6. in all events, Defence shall be entitled at conclusion of the trial to apply for an Order for payment of all thrown away costsoccasioned by the breach, as determined by the Court, to be borne by the Crown. [61] This remedy meets the criteria of being responsive and effective. It parallels the approach in R. v. Mercer (2002), (NL SC), 210 Nfld. & P.E.I.R. 46, 53 W.C.B. (2d) 101 (N.L.S.C.(T.D.)), where the Crown failed to disclose informationrelevant to Crown witness testimony. When this non-disclosure was discovered, the trial judge re-opened cross-examination of theCrown witness as the Charter remedy.

The Accused is concerned that his ‘tactical flexibility’ has been affected by the Crown’snon-disclosure. There being no jury, the evidence will be handled as would be the case in a voir dire; the Accused may now restructurehis expert response to the Crown’s case as counsel may advise. On the same basis, there is no need to declare a mis-trial as an alternativethat was profiled by Defence.

Counsel were advised in oral argument, I have declined to read the Beecroft transcript that was submittedas part of the Crown’s materials on this motion and I will rule on any cross-examination issues as they may arise in the ordinary course. [62] I do not think that the issue of ‘fading memories’ is as significant for an expert witness such as Dr. Ophoven as may be thecase for someone such as an eyewitness to a crime. Dr.

Ophoven should have a full opportunity to review the relevant medical records,her earlier analysis and conclusion, and discuss her testimony with Defence counsel notwithstanding the usual protocol of non-contactfrom the conclusion of examination in chief. As noted during argument and conceded by the Crown, counsel for the Defence is fullyentitled to brief Dr. Ophoven or any other witness(es) within the usual bounds of professional ethics. [63] I emphasize that examination-in-chief may, at the option of Defence strike all testimony of Dr.

Ophoven from June 29, 2011and recommence; or it may include questioning that recaptures or recapitulates her earlier testimony as counsel may choose. TheDefence preparations will be made with full knowledge of the Beecroft transcript only, Crown having disclosed and confirmed this as theonly such material being used to challenge this witness. [64] The Crown has suggested that, at worst, Dr. Ophoven’s evidence would be worth nothing, so that cross-examination andre-direct alone would be sufficient and cause no harm. I disagree.

Defence did not have full disclosure and is entitled to the fullestoptions which I have presc00ribed at his option. If that involves a decision not to use Dr. Ophoven, I will disregard her evidence entirelywithout any prejudice whatsoever to the Defence. Similarly if the Defence chooses to submit other expert testimony, this case will beweighed without any regard to the evidence of Dr. Ophoven. [65] Unlike a civil proceeding, the disbursements and costs incurred by a defendant in a criminal proceeding are typically not aconsideration for the court.

However, I consider that any additional costs here must properly be addressed under a Charter, s. 24(1)damage award. I refer to Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28. See also R. v. 974649 Ontario Inc., at paras. 80-81; R. v. Pang (1994), 1994 ABCA 371 , 162 A.R. 24, 26 Alta. L.R. (3d) 317 (Alta. C.A.); R. v. Taylor, 2008 NSCA 5, 261N.S.R. (2d) 247. [66] My review of Vancouver (City) v.

Ward, particularly paras. 21 and 33, indicates that the Supreme Court of Canada hasinvited trial courts to develop appropriate Charter costs awards, following the general principle that Charter remedies should be flexibleand responsive. I conclude an award for ‘thrown away’ costs is “appropriate and just”, and meets the criteria identified in Vancouver(City) v. Ward at para. 31. That parallels the well established civil law approach that a party should not be liable for costs caused byanother party’s in-trial misconduct. VI.

Conclusion [67] The consequence derived from the Charter, s. 7 breach is substantively addressed by providing the Accused with these experttestimony options. In light of my conclusion that a0 non-stay remedy allows the Accused to effectively exercise his right to make fullanswer and defence, the prejudice to the Accused of the delay trial is substantially reduced. I therefore determine that no Charter, s.11(

b) breach has occurred as a result of the Crown’s failure to disclose the Beecroft transcript, and a stay of the aggravated assaultcharge is not warranted.

Heard on the 23 rd day of January, 2012. Dated at the City of Edmonton, Alberta this 30 th day of January, 2012. S.D. Hillier J.C.Q.B.A. Appearances: Mark Huyser-Wierenga Crown Prosecutor ’ s Office for the Crown0 Kelly Dawson Dawson Stevens Duckett and Shaigec for the Accused