R. v. Lui, 2022 NBCA 28

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 90-21-CA HIS MAJESTY THE KING APPELLANT SA MAJESTÉ LE ROI APPELANT - and - - et - MITCHELL LUI RESPONDENT MITCHELL LUI INTIMÉ R. v. Lui, 2022 NBCA 28 R. c.

Lui, 2022 NBCA 28 CORAM: The Honourable Chief Justice Richard The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge en chef Richard l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: July 29, 2021 Appel d’une décision de la Cour du Banc de la Reine : le 29 juillet 2021 A Publication Ban in this matter was issued by the Court of Queen’s Bench on February 17, 2021. It remains in effect. History of Case: Le 17 février 2021, la Cour du Banc de la Reine a rendu en l’espèce une ordonnance de non- publication qui est toujours en vigueur.

Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: [2021] N.B.J. No. 230 Procédures préliminaires ou accessoires : [2021] A.N.-B. n o 230 Appeal heard and judgment rendered: May 19, 2022 Appel entendu et jugement rendu : le 19 mai 2022

Reasons delivered: October 20, 2022 Motifs déposés : le 20 octobre 2022 Counsel at hearing: For the appellant: Patrick McGuinty and Joanne Park For the respondent: George E. Kalinowski and Brian Douglas Munro Avocats à l’audience : Pour l’appelant : Patrick McGuinty et Joanne Park Pour l’intimé : George E. Kalinowski et Brian Douglas Munro THE COURT On May 19, 2022, we allowed the appeal, vacated the judge’s order, and ordered a new trial with reasons to follow. These are those reasons.

LA COUR Le 19 mai 2022, nous avons accueilli l’appel, annulé l’ordonnance du juge et ordonné la tenue d’un nouveau procès, le tout avec motifs à suivre. Voici ces motifs. The judgment of the Court was delivered by THE COURT I. Introduction [ 1 ] A judge of the Court of Queen’s Bench erred when, at the culmination of a voir dire in which Mitchell Lui was seeking an order of disclosure, the judge ordered the prosecution (“the Crown”) to turn over to Mr. Lui the cellular phones, and any associated SD or memory cards, of six witnesses. Among these witnesses was the mother of the two-year-old girl Mr.

Lui was accused of having sexually assaulted. Having been ordered to produce items it never possessed and over which it had no control, the Crown invited the judge to stay the proceedings. The judge did so. Since a stay is akin to an acquittal, the Attorney General appealed. At the close of the hearing, we allowed the appeal, set aside the judge’s decision, and ordered a new trial. At the time, we indicated reasons for our decision would follow. These are those reasons.

Briefly stated, the trial judge erred by applying the wrong disclosure regime and by ordering the Crown to disclose and produce items that had never been in its possession or control. II. Background [ 2 ] Many of the facts set out below, must be read as allegations against Mr. Lui and not as established facts, since there has yet to be a trial; however, much of this information served as the factual basis for the limited purpose of adjudicating a disclosure request. [ 3 ] In September 2019, a two-year-old girl complained to her mother of pain in her “private” area.

At the time, the child’s mother noted redness and swelling in her daughter’s vaginal and anal area. Later, a doctor diagnosed the child with possible anal fissures, mild erythema on her vulva and a yeast infection. Although the child’s mother was concerned her daughter might have been sexually assaulted, she did not suspect Mr. Lui, with whom she was in a relationship. This would change in December, after the child told her that “Mitchell hurt her bum with his bum.”

[ 4 ] The child was eventually examined for sexual assault. A few days later, Mr. Lui texted the child’s mother. In the exchange, he wrote that he “wanted to die” because he would be “in jail for 34 years and come out a sex offender” and would be “seen as a monster.” The mother responded that Mr. Lui was a “monster” for having “sex with a 2-year-old infant,” to which Mr. Lui replied: “Exactly. It’s why I want to die. It’s why I tried in August. I can’t live with myself.” [ 5 ] Two days later, Mr. Lui and the child’s mother exchanged messages via Instagram. Mr.

Lui advised he wanted to commit suicide because he “did the one thing that happened to [him] when [he] was younger.” [ 6 ] The next day, Mr. Lui and the child’s mother had a telephone conversation, which the mother’s new partner recorded on his cellphone. In the recording, Mr. Lui describes in detail two distinct and separate acts of sexual assault he committed upon the two-year-old. On this same day, the child’s mother reported the matter to the police. [ 7 ] An investigating officer asked the child’s mother to email him a statement, screen shots of her exchanges with Mr.

Lui, and the recording of her recent phone conversation with him. The child’s mother complied. A few days later, she signed a waiver and consented to officers photographing relevant information from her phone. As she held her phone and scrolled through her messages from Mr. Lui, officers took photographs of what was depicted on the phone’s screen. [ 8 ] Later, another officer contacted the child’s mother seeking her consent for the police to extract the relevant messages from her phone using a particular software. She agreed and signed another waiver to indicate her consent.

The cellphone was connected to the police software system and only the text messages she had disclosed were extracted. The rest of the information contained in the phone was neither scanned nor extracted, and the phone was returned to the child’s mother. [ 9 ] As for the audio/video recording of the telephone conversation made by the mother’s new partner, it was uploaded to a “Google Drive” and a link was eventually emailed to police investigators, who viewed and kept the recording.

The officers did not seize or at any time have control over the cellphone used to record the conversation, although at one point, attempting to comply with a disclosure request, the officers asked for the phone but were informed it had been sold months earlier. A sales receipt was produced. [ 10 ] As part of their investigation, police officers also obtained information emanating from two other cellular phones said to contain messages to and/or from Mr. Lui concerning the alleged sexual assault of the two-year-old. [ 11 ] One cellphone was that of a friend of Mr.

Lui who had exchanged electronic messages with him through Snapchat. In those messages, Mr. Lui stated that he was suicidal, that he had molested a child and that he was going to turn himself in. Mr. Lui’s friend took screenshots of those communications and emailed these to police investigators. A year later, the friend was contacted for a follow-up interview during which an officer asked her if she still had the messages on her phone. She did and consented to officers photographing her screen to capture images of the messages in question. [ 12 ] The second cellphone belonged to a friend of Mr.

Lui, who stated that, the day before he was arrested, Mr. Lui confessed to having sexually assaulted the two-year-old girl. This individual gave a statement to the police and provided the investigators with screenshots of messages between herself and the girl’s mother. [ 13 ] Although Mr. Lui was initially charged with having sexually assaulted the two-year-old child ( s. 271 (

a) of the Criminal Code ) and having touched her for a sexual purpose ( s. 151 ), the indictment filed after he chose to be tried by a court composed of a judge and jury was limited to a single count: the charge under s. 271 (a). [ 14 ] Prior to the commencement of his trial, Mr. Lui applied for the disclosure of various cellphones belonging to numerous witnesses. In addition to the phones of the four witnesses described above, he also sought the phones of two additional individuals, both of whom previously had alleged Mr. Lui had sexually assaulted them.

These two matters involved separate incidents alleged to have occurred over a year before Mr. Lui was charged with having assaulted the two-year-old child. In both cases, the charges against Mr. Lui were eventually withdrawn. In one of these cases, police officers had been given permission to seize the complainant’s cellphone, but the charges were withdrawn before they searched it or extracted anything from it, so they returned the phone to its owner. In the other case, the complainant was asked to email screenshots of relevant messages to an officer, and she did so.

Some of the messages were exchanges with the mother of the two-year-old involved in the present matter, as she was Mr. Lui’s girlfriend

at the time. While following up on a disclosure request from Mr. Lui in the present matter, a police officer learned that the woman’scellphone had since been damaged and that she had purchased a new one. However, the texts in question were extracted from the phoneof the child’s mother and were disclosed to Mr. Lui. [15] Mr. Lui obtained disclosure of all relevant information the Crown had in its possession that hadoriginated from one or another of the cellphones mentioned above. Nevertheless, Mr.

Lui applied for further disclosure, specificallyasking for the Crown to turn over the six cellular phones to him, together with any memory card associated with those phones. Hisapplication was anchored in the first party disclosure regime the Supreme Court elaborated in R. v. Stinchcombe, (SCC),[1991] 3 S.C.R. 326, [1991] S.C.J. No. 83 (QL), as opposed to that articulated in R. v. O’Connor, (SCC), [1995] 4S.C.R. 411, [1995] S.C.J. No. 98 (QL), for disclosure from third parties or the statutory regime under ss. 278.1-278.91 of the CriminalCode. Mr.

Lui simply argued the cellphones were relevant and had to be disclosed. According to him, the test set out in R. v. Gubbins,2018 SCC 44, [2018] 3 S.C.R. 35, at para. 33, to determine the applicable disclosure regime, did not apply. According to that test,information in the possession or control of the prosecuting Crown is disclosed under the Stinchcombe first party regime, as are the fruitsof the investigation and obviously relevant information in the possession of the police or another Crown entity and which should havebeen supplied to the prosecuting Crown. Mr.

Lui argued Gubbins was distinguishable because the information sought in Gubbins wasnot “fundamental to the Crown’s case.” Alternatively, he argued the judge should find that the cellphones were in the possession orcontrol of the prosecuting Crown because the witnesses had voluntarily shared information from their phones with the police. [16] The Crown’s position before the trial judge was that it did not at any time have possession orcontrol of any of the cellphones, thus an application for disclosure should have followed the process set out in O’Connor, which, theCrown argued, was specifically designed for these types of disclosure requests. [17] After hearing counsel, the trial judge granted the application and ordered the Crown to“disclose and produce the […] cellular phones (including the SD or memory cards associated with those cellular phones) [of all theindividuals in question] used during all material times, specifically from [certain dates] until the present [being September 13, 2021 – thedate the order was issued],” except for one that had a termination date of January 2021.

The judge also ordered the Crown to “discloseand produce all messages including but not limited to video and audio messages and social media posts made between and/or among” thesix individuals in question. In addition, the judge directed that, “[i]n the event that the Crown is unable to produce and disclose any ofthe foregoing cellular phones, including the SD or memory cards associated with those cellular phones […], the Crown shall submitsworn affidavit evidence to this Court explaining why the cellular phone(

s) and/or messages is/are unavailable.” [18] The Crown concluded it was legally incapable of complying with the trial judge’s order becauseit did not have any lawful authority to seize the cellphone from any of the individuals in question. As a result, the Crown invited the trialjudge to stay the proceedings against Mr. Lui because the Crown would not be complying with the disclosure order. The judge did so,and the Crown subsequently appealed. III.

Analysis [19] Two issues are raised on appeal: (1) should the Crown be allowed to appeal in these circumstances; and (2) didthe trial judge err in ordering that the six cellular phones be disclosed and produced? In our view, both questions must be answered in theaffirmative. A. The Crown’s invitation for the judge to stay the proceedings was justified [20] Generally, in criminal proceedings, interlocutory orders cannot be appealed. In R. v. Tingley, 2015 NBCA 51,[2015] N.B.J.

No. 274 (QL), this Court stated as follows: While there can be no appeal against interlocutory orders unless specifically authorized by statute, this does not mean that the AttorneyGeneral is left without remedy. There are options. These were recently explained in United States of America v. Fafalios, 2012 ONCA365, [2012] O.J. No. 2394 (QL): [...] It has two options. It can continue with the proceeding and, depending on the result and the effect of the ruling on that result, launchan appeal in which the adverse ruling is challenged.

Or it can do what the Crown did here; it can bring the proceedings to a halt andlaunch an appeal challenging the correctness of the interlocutory order.

However, this second option is strictly limited to cases where the Crown can clearly demonstrate that it had no reasonable alternative. Ifthe record does not support such a finding, allowing the Crown to argue its appeal from the interlocutory order would amount to an abuseof process. [paras. 42-43] [Emphasis in original.] The second option constitutes a functional appeal of an interlocutory order. Bringing the proceedings to a halt can be accomplished by astay or, as the Crown did here, by calling no evidence: R. v. Scott, (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J.

No. 132(QL). [paras. 114-115] [21] As noted above, the Crown is only ever justified in halting proceedings and appealing to thisCourt where it can demonstrate that it had no reasonable alternative. If the record does not support such a finding, allowing the Crown topursue an appeal would constitute an abuse of process. The Crown will meet the threshold if it can establish either “

a) that the effect ofthe interlocutory ruling is to exclude evidence sufficiently important to the prosecution that the Crown is unable to continue; or

b) thatcompliance with the interlocutory order raises a reasonable prospect of harm to an interest the court deems worthy of protection”(Tingley, para. 116, citing Fafalios, para. 44). The present case raises the second element. [22] A reasonable prospect of harm can be established where “the Crown can demonstrate thatcompliance with the interlocutory order would cause irreparable harm to the administration of justice” (Tingley, para. 120, citingFafalios, para. 50).

The burden on the Crown is as follows: When the Crown requests a premature termination of a proceeding after an adverse interlocutory ruling, it must establish the existence ofcircumstances where a direct appeal of the ruling is absolutely necessary - where there is no reasonable alternative.

The onus on theCrown is formidable due to the exceptional nature of a procedure that essentially circumvents the rule against a direct appeal from aninterlocutory order. [Tingley, para. 121, citing Fafalios, para. 55.] [23] In our view, this is one of those cases where the Crown had no reasonable alternative than to invite the judge tostay the proceedings. As it will be seen below, the trial judge’s order was one with which the Crown could not lawfully comply as it didnot have in its possession or control any of the cellphones and had no lawful authority to seize these and turn them over to Mr.

Lui for hisunimpeded access for an indeterminate period. [24] We agree with counsel for the Attorney General’s statement that the notion the Crown could seize thecellphone of a victim or witness who provided relevant information to the police is contrary to the proper administration of justice.

Wealso agree with his statement that compliance with the trial judge’s order would have raised a reasonable prospect of harm to interests theCourt deems worthy of protection, these being the following: (1) the independence of the Crown, (2) the privacy rights victims andwitnesses have in their cellphones, and (3) the need to ensure that police investigations are not inappropriately stifled.

(1) The independence of the Crown [25] In Ontario (Attorney General) v. Clark, 2021 SCC 18, [2021] S.C.J. No. 18 (QL), the Supreme Court recentlystressed the importance of the Crown acting independently from the police: The police role is to investigate crime.

The Crown prosecutor’s role, on the other hand, is to assess whether a prosecution is in the publicinterest and, if so, to carry out that prosecution in accordance with the prosecutor’s duties to the administration of justice and the accused.[para. 41] In other words, police and Crown prosecutors are expected to act according to their distinct roles in the criminal justice process. [26] The trial judge’s order directed the Crown to become an investigator in this matter, to seize various cellphonesand hand them over to Mr. Lui for an indeterminate period.

The decision constituted a form of directing a criminal investigation byinstructing the Crown to order the police to seize six cellphones without lawful authority.

(2) An individual’s privacy rights regarding their cellphones [27] The trial judge’s decision overlooks an individual’s privacy rights regarding their cellphone, a right theSupreme Court has clearly recognized: see in particular R. v.

Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 40, where Cromwell J., forthe Court, observes that, “[i]t is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer[which, at para. 38, he also equates to cellphones].” In the present case, the trial judge’s decision stands for the proposition that anyvictim or witness who willingly provides the police with information on their cellphone to be used in a criminal investigation issusceptible to having their phone seized and searched in its entirety if an accused makes a request.

(3) Stifling police investigations [28] Police officers who testified in this matter stated that, currently, text messages between an accused and awitness are part of “almost every file.” As a result of the judge’s order, future police investigations could be derailed as witnesses will bereluctant to provide any data to police if their willingness to assist means that their phone will be seized and searched in its entirety at therequest of an accused. [29] In the end, we concluded the trial judge’s order was harmful to the administration of justice in that it wasoffensive to interests deemed worthy of protection.

In our view, the Crown had no alternative but to seek a premature halt to theproceedings so that it could pursue an appellate remedy. In the circumstances of this case, it cannot be said that the Crown’s conductconstitutes an abuse of process. B. It was an error of law for the judge to order the Crown to “disclose and produce” the cellphones of the six witnesses [30] Recently, in R. v. Pascal, 2020 ONCA 287, [2020] O.J. No. 1998 (QL), leave to appeal refused [2020]S.C.C.A. No. 214 (QL), Watt J.A. had occasion to summarize the state of the law relating to disclosure in Canadian criminal law.

We cando no better than adopt his words: Two different disclosure regimes govern disclosure in criminal cases. First party disclosure under Stinchcombe [R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83 (QL)] supplemented by the duties imposed upon the Crown andinvestigating police in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, and third party disclosure under R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411. The purpose of each regime is to protect an accused's right to make full answer and defence, while at thesame time to recognize the need to impose limits on disclosure when required: R. v.

Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at para.29; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 115. First party disclosure under Stinchcombe imposes a duty on the Crown to disclose all relevant, non-privileged information in itspossession or control, whether that information is inculpatory or exculpatory, unless disclosure of that information is governed by someother regime. This duty is ongoing and corresponds to the accused's constitutional right to the disclosure of all material which meets theStinchcombe standard: Gubbins, at paras. 18-19; Stinchcombe, at pp. 339; and R. v.

McQuaid, (SCC), [1998] 1 S.C.R.244, at para. 22. The purpose of disclosure is to protect an accused's Charter right to make full answer and defence. That right will be impaired wherethere is a reasonable possibility that undisclosed information could have been used by the accused to meet the case for the Crown, toadvance a defence or to otherwise make a decision which could have affected the conduct of the defence: Gubbins, at para. 18; McQuaid,at para. 22. Crown entities other than the prosecuting Crown - including the police - are third parties for the purposes of disclosure.

They are notsubject to the Stinchcombe regime: Gubbins, at para. 20; McNeil, at para. 22; and R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, atpara. 11. The prosecuting Crown's disclosure duty under Stinchcombe is triggered upon a defence request for disclosure: Gubbins, atpara. 19; Stinchcombe, at pp. 342-43. It ill lies in the mouth of the prosecuting Crown to explain failure to disclose relevant material on the basis that the investigating police

service failed to disclose it to the Crown. When put on notice of potentially relevant material in the hands of the police or other Crownentities, the prosecuting Crown has a duty to make reasonable inquiries. Correspondingly, the police have a duty to disclose to theprosecuting Crown all material pertaining to its investigation of the accused. This material is often termed “the fruits of theinvestigation”: Gubbins, at para. 21; McNeil, at paras. 14, 22-24 and 52. The “fruits of the investigation” refers to the police investigative files, not their operational records or background information.

In otherwords, “fruits of the investigation” refers to information “generated or acquired during or as a result of the specific investigation into thecharges against the accused”: Gubbins, at para. 22. However, the police obligation of disclosure to the prosecuting Crown extends beyond the “fruits of the investigation”. The policeshould also disclose to the prosecuting Crown any additional information that is “obviously relevant” to the accused's case.

This“obviously relevant” information is not within the investigative files, but must be “disclosed under Stinchcombe because it relates to theaccused's ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence”: Gubbins, at para. 23.

To determine which disclosure regime applies to information, a court must consider whether: i. the information sought is in the possession or control of the prosecuting Crown; and ii. the nature of the information sought is such that the police or another Crown entity in possession or control of it should havesupplied the information to the prosecuting Crown.

The second question will be answered affirmatively where the information is part of “the fruits of the investigation” or is “obviouslyrelevant.” An affirmative response on either of these issues means that the first party or Stinchcombe disclosure regime applies: Gubbins,at para. 33. [paras. 100-107] [31] The passages cited above discuss only two common law disclosure regimes because they were the only twothat were relevant to the decision in Pascal.

There is, however, another disclosure regime in Canadian criminal law, that is, the statutoryregime set out in ss. 278.1 to 278.91 of the Criminal Code, known as the Mills regime, referencing R. v. Mills, (SCC),[1999] 3 S.C.R. 688, [1999] S.C.J. No. 68 (QL), in which the Supreme Court held this regime was not unconstitutional.

Under thatregime, no record relating to either a complainant or a witness shall be produced to an accused in any proceedings in respect of severalspecified offences, which include a sexual assault charge under s. 271 of the Criminal Code, except in accordance with the provisions ofss. 278.3 to 278.91, which set out a procedure for an accused person to apply to the trial judge for disclosure. As Karakatsanis J., for theCourt, explained in R. v. Quesnelle, 2014 SCC 46, [2014] S.C.J.

No. 46 (QL), the Mills regime “permit[s] disclosure only where a recordis likely relevant and its disclosure is necessary in the interests of justice” (para. 1). [32] As it relates to the present case, the critical question regarding the applicability of the statutory regime rests onthe question whether the cellphones of the various witnesses in this sexual assault prosecution constitute a “record.” If they do, then theMills regime applies. [33] The term “record” is defined:

278.1 Definition of “record” For the purposes of sections 278.2 to 278.92, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. 278.1 Définition de dossier 278.1 Pour l’application des articles 278.2 à 278.92, dossier s’entend de toute forme de document contenant des renseignements personnels pour lesquels il existe une attente raisonnable en matière de protection de la vie privée, notamment : le dossier médical, psychiatrique ou thérapeutique, le dossier tenu par les services d’aide à l’enfance, les services sociaux ou les services de consultation, le dossier relatif aux antécédents professionnels et à l’adoption, le journal intime et le document contenant des renseignements personnels et protégé par une autre loi fédérale ou une loi provinciale.

N’est pas visé par la présente définition le dossier qui est produit par un responsable de l’enquête ou de la poursuite relativement à l’infraction qui fait l’objet de la procédure. [ 34 ] The statutory definition of the term “record” for the purposes of the Mills regime “is broad and non- exhaustive” ( Quesnelle , at para. 22 ).

While the definition “provides an illustrative list of some of the types of records that usually give rise to a reasonable expectation of privacy” it is clear that records that “do not fall into the listed categories will still be covered by the Mills regime if they contain information that gives rise to a reasonable expectation of privacy” (para. 22).

While Quesnelle concerned documents and not cellphones, there is no principled reason why the Mills regime would apply to documents that contain information that gives rise to a reasonable expectation of privacy but not to that same information if it were stored on a cellphone or some other device. A document is still a document even if it is stored in a digital format. We also note that, in the more recent decision from the Supreme Court regarding the Mills regime, R. v. J.J. , 2022 SCC 28 , [2022] S.C.J.

No. 28 (QL) , the majority does not limit its analysis to documents but rather speaks of the broader concept of records. The Mills regime guards against inappropriate access to personal information regarding which there is a reasonable expectation of privacy, and this regardless of the medium on which the information is kept. [ 35 ] No one can credibly argue that one’s cellphone does not contain personal information regarding which there is a reasonable expectation of privacy. The Supreme Court decision in R. v. Marakah , 2017 SCC 59 , [2017] S.C.J. No. 59 (QL) , makes that abundantly clear.

In our view, the contents of a cellphone constitute records within the meaning of s. 278.1, therefore engaging the Mills regime. It is this process that should have been followed in the present case to determine whether any of the records contained in each cellphone ought to be disclosed. [ 36 ] The Mills regime was raised in the arguments before the trial judge, with the Crown arguing it should apply; however, Mr. Lui maintained his was a Stinchcombe application, full stop. According to him, neither the O’Connor nor the Mills regimes applied.

Surprisingly, he managed to convince the trial judge of this. [ 37 ] We say surprisingly because we find Mr. Lui’s arguments at trial to be wholly bereft of any merit. To argue, as Mr.

Lui did, that the Mills regime is wholly inapplicable if the judge were to find that the cellphones in question were in the possession or within the control of the Crown is to ignore the provisions of s. 278.2(2), which stipulate that the regime applies even “where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections ” (emphasis added).

While there was evidence some, if not all, of the witnesses had provided consent for the police to take photos of certain messages depicted on their screens or to extract certain information from their respective phones, there was no evidence anyone had expressly waived the application of the Mills regime. [ 38 ] At the hearing of the appeal, the arguments were focused not on the application of the Mills regime, but rather on the question whether the prosecuting Crown ever had possession of or control over the cellphones in question. [ 39 ] Counsel for the Attorney General argued that the law of disclosure in Canadian criminal law proceedings is well established.

We agree. Under Stinchcombe , the prosecuting Crown is obligated to disclose to an accused all relevant, non-privileged information in its control or in its possession, whether inculpatory or exculpatory. A corollary to this is that the law does not impose upon the Crown an obligation to disclose material it does not have or cannot obtain. The law distinguishes between the Crown and the police, although it imposes upon the police an obligation to disclose the “fruits of the investigation,” meaning the police’s investigative file, as

well as any other information that is obviously relevant to the accused’s case, provided that such information is in the possession or control of either the police or another Crown entity. Specifically excluded are third party records, which fall under the O’Connor regime, unless, of course, as here, the Mills regime applies. [ 40 ] In our view, there is simply no reasonable basis upon which it could be argued that the prosecuting Crown ever had in its possession or control any of the cellphones in question. In his decision, the trial judge held that the disclosure Mr.

Lui was seeking was “obviously relevant” to his case, without explaining how this was so or how all the information on the cellphones in question for the periods provided in his order, would be so. The trial judge made a bald conclusion that the Crown had control over the cellphones and the messages they contained on the sole basis that these witnesses had consented for the police to extract certain information from their phones without the requirement of a formal warrant. With respect, this is simply wrong.

The law makes a clear distinction between the police as the investigators and the Crown as the prosecuting entity. Just because the police might once have exercised some degree of control over an item with the consent of its owner does not mean the Crown ever exercised any control over that item unless the item were provided to the Crown as part of the fruits of the investigation.

Furthermore, just because the police may once have exercised some degree of control over an item, once the item is returned to its rightful owner, it cannot be said that the police are still in possession of it (if they ever were) or that they still are exercising some control over it. [ 41 ] In the present case, the police were allowed to photograph certain screens or extract some information from four of the cellphones, which their respectful owners then retained, yet the trial judge concluded that, at the time of the disclosure request, the phones were under the control of the Crown.

Another of the phones – the one used to video/audio record a telephone conversation – was never provided to the police as it had been sold, yet the trial judge concluded that, at the time of the disclosure request, the Crown had control over that phone.

Another of the cellphones had been broken and replaced, yet the trial judge concluded that the Crown had control over that phone as well. [ 42 ] In his decision, the trial judge did not provide any insight on his understanding of the term “control.” With respect, under no proper definition of the word can it be said that control includes items that have never been in the possession of the Crown or which the Crown has no legal power to take from their rightful owners.

In our view, there was no basis upon which the judge could reasonably conclude these cellphones, including the one that had been sold and the one that had been replaced, were at any time under the Crown’s control. Nor can it be said that, at the time the disclosure requests were made, the cellphones in question were under police control.

It is simply wrong to rule that, just because a witness provides the police with certain text messages or allows them to extract limited information from their phone, the witness is relinquishing control over his or her phone and its entire contents for as long as a case is not concluded. Rhetorically, would not the same argument apply to a computer if text messages had been sent or received on that medium and then disclosed to the police?

While the witness may have allowed the police to extract precise information from their cellphone for a limited purpose, it cannot be said that the police retained any kind of residual possession or control over either the phone or its entire contents (including the information added after the police extraction was made) for an undetermined period. [ 43 ] In the present case, the fruits of the investigation were disclosed to Mr. Lui. If he desired further disclosure of what the phones contained, he should have brought a third party disclosure application, in this case under the Mills regime.

The trial judge erred in law by applying the wrong regime and by modifying the Stinchcombe framework and ordering the Crown to disclose and produce items it had never possessed nor over which it ever had control. The judge’s ruling is contrary to the law in Canada and ignores the reason for the existence of third party disclosure regimes. VI. Disposition [ 44 ] It is for these reasons that at the conclusion of the hearing we allowed the appeal , vacated the judge’s order, and ordered a new trial.

Upon the request of the parties and because we are ordering a new trial regarding which these reasons may be relevant, we exercise our power under s. 24(2) of the Official Languages Act , S.N.B. 2002, c. O-0.5 and direct that these reasons be published in English first with the French version to follow.