Her Majesty the Queen Applicant - v. -, 2013 NSSC 386

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Clarke, Colpitts and Potter, 2013 NSSC 386 Date: 20131205 Docket : CRH 346068 Registry: Halifax BETWEEN: Her Majesty the Queen Applicant - and - Bruce Elliott Clarke, Robert Blois Colpitts and Daniel Frederick Potter Respondents LIBRARY HEADING Judge : The Honourable Justice Suzanne M. Hood Heard: October 17, 2013 Subject: Disclosure

Summary: Blois Colpitts asks the Court to make a finding that the Crown breached its duty pursuant to R. v. McNeil , 2009 SCC 3 , to make reasonable inquiries with respect to material known to be in the possession of the Nova Scotia Securities Commission. He seeks an Order that the Crown vet the Nova Scotia Securities Commission materials and disclose them or, in the alternative, that he be permitted to access the materials. Issues: Crown obligation to inquire and attempt to obtain material (R. v. McNeilI, 2009 SCC 3 ). Result: Crown breached McNeil obligation. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Clarke, Colpitts and Potter, 2013 NSSC 386 Date: 20131205 Docket : CRH 346068 Registry: Halifax BETWEEN: Her Majesty the Queen Applicant - and - Bruce Elliott Clarke, Robert Blois Colpitts and Daniel Frederick Potter Respondents D E C I S I O N Judge: The Honourable Justice Suzanne M. Hood Heard: October 17, 2013 Counsel: James C. Martin and Mark Covan for the Federal Crown Craig M. Garson, Q.C. and Tyler Hodgson for R. Blois Colpitts Barry Whynot for Bruce E. Clarke Daniel F. Potter, self-represented By the Court :

By the Court : FACT [ 1 ] Blois Colpitts asks the Court to make a finding that the Crown breached its duty pursuant to R. v. McNeil , 2009 SCC 3 , to make reasonable inquiries with respect to material known to be in the possession of the Nova Scotia Securities Commission. He seeks an Order that the Crown vet the Nova Scotia Securities Commission materials and disclose them or, in the alternative, that he be permitted to access the materials. ISSUE Did the Crown have an obligation with respect to the Nova Scotia Securities Commission materials?

FACTS [ 2 ] In his application dated September 25, 2013, Blois Colpitts sought a Declaratory Order that the Crown breached its duty. The Crown in its written submissions objected to the request for a declaration. It also said the application was flawed because it was not a Charter application. [ 3 ] At the hearing, without admitting the necessity to do so, Blois Colpitts amended his notice to remove any reference to a declaration and to add a reference to s. 7 and s. 24 (1) of the Charter . [ 4 ] The facts are largely not in dispute.

The Nova Scotia Securities Commission conducted an investigation pursuant to the Securities Act , R.S.N.S. 1989, c. 418, into alleged breaches of the Act . The Securities Commission referred the matter to the RCMP for potential investigation. The RCMP investigation led to the charges in this matter against Blois Coliptts, Bruce Clarke and Dan Potter. [ 5 ] There is no dispute that the RCMP and the Securities Commission communicated nor that some Securities Commission documents were provided to the RCMP.

Some of those documents have been disclosed to the three defendants. [ 6 ] At the time of the first case management conference in this matter on August 19, 2011, Dan Potter referred to a possible McNeil application. Thereafter, there was quite regular correspondence between counsel for Blois Colpitts and the Crown with respect to the Crown disclosure and it was a regular topic at subsequent case management conferences. [ 7 ] On July 8, 2013, a subpoena duces tecum was served on the record holder of the Securities Commission by counsel for Blois Colpitts.

This was done without prejudice to Blois Colpitts ’ position that these records should have been part of the Crown disclosure. The materials were thereafter delivered to Blois Colpitts ’ counsel. [ 8 ] The Crown took the position that these were third party documents and the subpoena could have been issued by the defendant sooner. It ultimately requested Blois Colpitts ’ counsel not to access the material from the Securities Commission until the Court ruled on whether it should be vetted first by the Crown.

The Crown characterized the defence application as an O ’ Connor Application, which is disputed by Blois Colpitts. [ 9 ] Dan Potter had earlier received some Securities Commission material in another proceeding but was subject to a Confidentiality Order with respect to it. In addition, in his submissions to the Court, he said there were additional materials to which he wished to have access. The Securities Commission had provided some material in 2009 but, by that time, Blois Colpitts and Bruce Clarke had both settled with the Securities Commission and did not receive that material.

ANALYSIS [10] In R. v. McNeil, the accused sought police disciplinary records with respect to the Crown’s main police witness. TheSupreme Court of Canada concluded for purposes of disclosure not all state authorities are one but are third parties. Charron, J. said atpara. 13: 13. ... The notion that all state authorities constitute a single indivisible Crown entity for the purposes of disclosure finds no support inlaw and, moreover, is unworkable in practice. Accordingly, Crown entities other than the prosecuting Crown are third parties under theO’Connor production regime.

As I will explain, however, this does not relieve the prosecuting Crown from its obligation to makereasonable inquiries of other Crown entities and other third parties, in appropriate cases, with respect to records and information in theirpossession that may be relevant to the case being prosecuted.

The Crown and the defence in a criminal proceeding are not adverse ininterest for the purpose of discovering relevant information that may be of benefit to an accused. [11] The question here is whether this is “an appropriate case” and, therefore, whether the Crown had the obligation to makereasonable inquiries of the Securities Commission. [12] There is no question that the Securities Commission material is relevant. The Crown admitted that at the July 29, 2013 courtappearance. [13] Charron, J. referred to R. v. Stinchcombe, (SCC), [1991] S.C.J. No. 83 and the Crown’s disclosureobligations.

She said in paragraph 17: 17 The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is wellestablished. The duty is triggered upon request and does not require an application to the court.

Stinchcombe made clear that relevantinformation in the first party production context includes not only information related to those matters the Crown intends to adduce inevidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accusedin the exercise of the right to make full answer and defence. [14] She referred to the limits on the Crown disclosure obligation saying the Crown has discretion with respect to the manner andtiming of the disclosure. [15] In paragraph 20, she referred to the two assumptions implicit in the Crown’s Stinchcombe duty to disclose: 1.

The material is relevant to the Crown’s case; and 2. It will likely comprise the case against the accused. She said these assumptions are the reason why the onus is on the Crown to justify non-disclosure. [16] Charron, J. then went on in paragraph 22 to say that the Stinchcombe obligation relates only to material in the possession andcontrol of the Crown, that is, the fruits of the investigation.

She poses the question of whether the Crown for disclosure purposesencompasses other state authorities. [17] She reviewed the O’Connor regime for production of third party records and, beginning at paragraph 47, dealt with what shereferred to as bridging the gap between first party disclosure and third party production. In paragraph 47, she commented on the role ofthe Crown and the police in bridging that gap. She said:

47 ... Third parties are under no obligation to come forth with relevant information to assist the accused in his defence. However, theprosecuting Crown and the investigating police force are in a different position and can assist in bridging the gap between first partydisclosure and third party production. [18] In the two paragraphs of the decision relied upon by the defendants, Charron, J. said at paragraphs 48 and 49: 48 As stated earlier, the suggestion that all state authorities constitute a single entity is untenable and unworkable.

In order to fulfill itsStinchcombe disclosure obligation, the prosecuting Crown does not have to inquire of every department of the provincial government,every department of the federal government and every police force whether they are in possession of material relevant to the accused’scase. However, this does not mean that, regardless of the circumstances, the Crown is simply a passive recipient of relevant informationwith no obligation of its own to seek out and obtain relevant material. 49 The Crown is not an ordinary litigant.

As a minister of justice, the Crown’s undivided loyalty is to the proper administration ofjustice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officerof the court without inquiring further and obtaining the information if it is reasonably feasible to do so. Ryan J.A. in R. v.

Arsenault(1994), (NB CA), 153 N.B.R. (2d) 81 (N.B.C.A.), aptly described the Crown’s obligation to make reasonableinquiries of other Crown agencies or department. He stated as follows: When disclosure is demanded or requested, Crown counsel have a duty to make reasonable inquiries of other Crown agencies ordepartments that could reasonably be considered to be in possession of evidence. Counsel cannot be excused for any failure to makereasonable inquiries when to the knowledge of the prosecutor or the police there has been another Crown agency involved in theinvestigation.

Relevancy cannot be left to be determined by the uninitiated. If Crown counsel is denied access to another agency’s file,then this should be disclosed to the defence so that the defence may pursue whatever course is deemed to be in the best interests of theaccused. This also applies to cases where the accused or defendant, as the case may be, is unrepresented ... [para. 15] [19] The Crown does not have to take general inquiries of other government departments and police forces, but does not simplyreceive information without having any obligation to do more.

The Crown is a minister of justice, owing loyalty to the overalladministration of justice. If the Crown has notice of relevant information, it must make inquiries and, where reasonably possible, obtainthe information. It is not necessary to do so if the notice is unfounded. In order to make a full assessment of the Crown’s case, as well asto fulfill its role as an officer of the Court, the inquiry must be made. [20] Charron, J. quoted from, and cited with approval, the New Brunswick Court of Appeal decision in R. v. Arsenault, (NB CA), [1994] N.B.J. No. 417 (C.A.).

In that case, the accused was charged with sexual interference. The Minister ofHealth and Community Services had two video tapes which were not disclosed to the accused and it was admitted they were relevant.

The Crown took the position it was not its responsibility to disclose evidence in the possession of another government department. [21] Ryan, J.A. said he was widening the responsibility of the Crown with respect to disclosure when he concluded the Crownhad an obligation to make reasonable inquiries of other departments that could reasonably be considered to have evidence when theCrown knew another Crown agency had been involved in the investigation. [22] There have been a number of decisions since McNeil which were cited to me. [23] In, R. v.

Melvin, 2009 NSSC 249 dealt with a request for police disciplinary records. In the result, the Public ProsecutionService was ordered to request from the Police Chief records relating to the credibility of a police officer and which could impact on theaccused’s full answer and defence rights. The Public Prosecution Service was then to review the file and make disclosure pursuant toStinchcombe. Coady, J. said in paragraph 106: [106] ...

1. I direct that the Public Prosecution Service write to Deputy Chief McNeil requesting any records from Cst. A.’s file that relate to his credibility and that could possibly impact on the accused’s ability to make full answer and defence. 2. I direct that the Public Prosecution Service review that file to determine what should be released to the accused applying conventional Stinchcombe principles. [ 24 ] In coming to his conclusion, he said that the result in McNeil seeks to avoid the complicated process necessitated by O ’ Connor . He said in paragraphs 21 and 22: [21] R. v.

McNeil urges avoidance of the O ’Connor regime in these situations so as to avoid long drawn out applications. [22] The Supreme Court of Canada was of the view that placing the onus on first party disclosure, would result in a more streamlined approach and that the production of relevant records would be treated the same as the ‘fruits of the investigation’ information. [ 25 ] He concluded McNeil changed what would have been third party production issues into a first party disclosure obligation.

He said in paragraphs 81 and 82: [81] While I agree that historically these documents would qualify as third party disclosure, and not fruits of the investigation, I am of the view that McNeil changes this principle. [82] McNeil clearly states that if the records are capable of ‘impacting on the case against the accused, then it is a first party disclosure obligation’. [ 26 ] He agreed with the defendant ’ s position that it was not enough to allow the police to determine relevance (paragraphs 92 and 93). [ 27 ] He said that the O ’ Connor procedure could be considered a default motion.

He said in paragraph 110: [110] In some ways an O ’Connor application is a default motion, in the sense that it is most easily defined by looking at what is not covered by the other disclosure or production schemes. [111] An O ’Connor procedure should be adopted when: 1. Charges are not sexual, 2. The records are in the hands of a third party, 3. An individual has a reasonable expectation of privacy in the records. [ 28 ] He concluded in paragraph 124 by saying that if the disclosure left the defendant dissatisfied, the O ’ Connor procedure could be followed.

[29] In R. v. Kresko, 2012 ONSC 2624, Himel, J. quoted from David Paciocco, (now Paciocco, J.) in an

article titled in part“Stinchcombe on Steroids.” In that article, he referred to McNeil having enhanced the Stinchcombe duty to disclose because itrecognized an obligation on the Crown with respect to information it did not control. Himel, J. ordered production of records relating tooutstanding criminal charges against a police officer. [30] In R. v. Furlotte,2012 ONCJ 365, Kozloff, J. quoted extensively from that same

article where David Paciocco refers toMcNeil giving an aggressive

interpretation of the obligations of the Crown and the police. He says McNeil goes beyond the productionof police records. He refers to the obligation as “the duty to inquire and attempt to obtain”. [31] Kozloff, J. concluded the records sought, occurrence reports relating to police investigations of the complainant, were firstparty records “being records which can be used to meet the case for the Crown, to advance a defence, or in making a decision affectingthe conduct of the defence.” [para. 33] [32] R. v.

Oliver, 2013 SKQB 187 too was a decision involving police records of past complaints against the accused by thecomplainant. In that case, Barrington-Foote, J. referred to Furlotte and other authorities following McNeil in concluding the Crown mustobtain the records and disclose them to the accused. [33] R. v. Ahmad, (Ont. Sup. Ct.) was decided only a few months after the release of McNeil. In that case, theaccused sought information from CSIS.

He was charged with terrorism-related offences and had been investigated by CSIS, along withothers, as a possible threat to Canada’s security. [34] The Crown position was that McNeil only applied where another agency had carriage of the investigation leading to thecharges. The Crown and CSIS said they carried out their own separate investigations and the CSIS investigation had nothing to do withthe prosecution of the accused. [35] However, the Crown had requested relevant information from CSIS and CSIS agreed it had some relevant information andprovided hundreds of documents to the Crown.

Accordingly, the Crown said it had complied with McNeil. The accused wanted theentire CSIS file. [36] Dawson, J. concluded the investigations remained separate and distinct so it was not one investigation. He also concludedCSIS did not take an active

part in the RCMP investigation. [37] He concluded that McNeil does not require that the CSIS investigation file must be turned over to the Crown. He said inparagraph 16: I do not agree that McNeil stands for the proposition that such an obligation flows simply from the fact that CSIS conducted a parallelinvestigation. [38] He limited the disclosure obligation to material CSIS found to be relevant. He said in paragraph 19: [19] ...

This does not mean that information in the hands of a parallel investigator will not be disclosed, simply that the prosecutingCrown will not bear the initial disclosure burden under Stinchcombe. [39] His concern was that, if he ordered the entire file to be produced by CSIS, the Crown would have to vet large amounts ofmaterial ‘without any showing of likely relevance’ by the applicants. (paragraph 22) [40] After reviewing the evidence before him, he concluded that the Crown had met its McNeil obligations. He said in paragraph72:

[72] In my view this demonstrates that the Crown has gone to great lengths to discharge its onus under McNeil to make inquiries ofCSIS for disclosure purposes. CSIS also appears to have acted responsibly by conceding likely relevance in certain areas. [41] He then said any further disclosure from CSIS. would be subject to the O’Connor regime. [42] Although I acknowledge his concerns with respect to the volume of material, a similar issue here, his conclusion seems to becontrary to the passage in McNeil where Charron, J. quoted Arsenault, supra.

Ryan, J.A. had said it should not be left to others todetermine relevancy for the purposes of the prosecution of the accused and his right to make full answer in defence. [43] Several cases cited by the Crown pre-date McNeil. [44] In R. v. Carrier, 2005 SKQB 471, the accused sought disclosure from the Civil Justice Branch of the provincial governmentand from Saskatchewan Environment and Resource Management where he had been a director.

He was charged with sexual assaults andcommon assaults with respect to several of his former employees. [45] Laing, J. said that the Supreme Court of Canada previously had not accepted the proposition that the office of the AttorneyGeneral is one and indivisible and that the records of the civil side are not records which the Crown must disclose pursuant toStinchcombe. In paragraph 18, he said: 18 ... In R. v. Ross, the records ordered to be disclosed were already in the possession of the civil law branch of the Department of theAttorney General, and it was the Crown that was ordered to disclose them.

The Supreme Court of Canada, by imposing the O’Connorprocedure prior to any disclosure, implicitly rejected that the prosecutorial Crown was in possession or control of the records and treatedthe civil law branch as a third party. [46] He then referred to a number of cases where information not resulting directly from a police investigation was disclosed. Hedistinguished the situation from that in Arsenault where he said there was a joint investigation. He also referred to R. v. Chaplin, (SCC), [1994] S.C.J.

No. 89 where the court said there was an exception from disclosure where the evidence was beyond thecontrol of the prosecution. [47] In R. v. Le, 2008 MBQB 96 (affirmed on appeal, 2011 MBCA 83), the issue was whether files kept by a program operated bythe Manitoba Department of Justice and the Secure Operations Unit of the Winnipeg Police were in the possession and control of theCrown. [48] Suche, J. referred to the Crown’s Stinchcombe duties.

She said in paragraph 45: [45] So documents created, generated, gathered or considered by the police investigators during, or as part of the investigation of thecharge, or in some way directly connected to the investigation, are subject to Stinchcombe. ... [49] She canvassed a number of decisions where the courts concluded records were third party records and the Crown did nothave possession or control of them. She then referred to an exception to the rule that other investigation reports are third party records.

She said in paragraph 52: [52] An exception to this general premise that other investigation reports are not within the Crown’s control, is where the investigationdirectly relates to the incident that gives rise to the charge against the accused. [50] As examples, she referred to: records of an altercation between the arresting officer and the accused; an investigation by anofficer of a different RCMP division of a fatal collision involving an RCMP cruiser and the accused and his vehicle; and information

with respect to a police officer ’ s character, credibility and ability to carry out his duties at the time of the investigation involving the accused. [ 51 ] She also referred to Arsenault , as “ the high water mark ” in terms of Crown obligations but said that the Supreme Court of Canada decision in Chaplin , later did not go that far.

She also referred to Carrier and a case cited in it which called for an examination of the nature of the government authority and the documents generated where a close relationship existed between the government authority and the Crown in connection with a criminal investigation. [ 52 ] The Crown also refers to Arbour Energy Inc. Re , 2012 ABASC 131 , as support for its submission that it has no obligation with respect to the Securities Commission files.

However, that was a decision of the Alberta Securities Commission in which the applicant had contended that the Securities Commission staff should have obtained RCMP material. Although the Commission refers to McNeil and Stinchcombe , in my view the role and duties of Securities Commission staff are different from those of the Crown because of the Crown ’ s role and responsibilities as a minister of justice for the administration of justice. As McNeil said, the Crown is not an ordinary litigant. [ 53 ] Le and Carrier are not persuasive.

They pre-date McNeil and were decided on the basis of what was in the Crown ’ s possession and control. McNeil has gone beyond that limitation on the Crown ’ s disclosure obligations. The Crown has a duty, as David Paciocco called it, “ to inquire and attempt to obtain ” third party records in some circumstances. [ 54 ] The extent of those circumstances is the issue before me. The Crown ’ s enhanced duty to inquire and to obtain is triggered when the Crown:

a) has notice;

b) of relevant material;

c) in the possession of another government authority. [ 55 ] In Ahmad , the court left the determination of what was relevant to be disclosed to CSIS. This was an early decision following McNeil (January to May). It is also significant that the third party was CSIS. The CSIS Act specifically restricts the release of information gathered by CSIS. This may explain the apparent contradiction between Ahmad and the McNeil decision.

McNeil approved of the quote from Arsenault , where Ryan, J.A. said it was not up to anyone other than the Crown to determine relevance in the case against the accused. [ 56 ] Even in Le which came down on the side of possession and control, Suche, J. gave examples of occasions when material not in the Crown ’ s possession and control had to be disclosed by the Crown. She recognized that there were exceptions.

She also quoted from a decision in which it was said that, if there was a close relationship between another government authority and the Crown, the court would have to look closely at the nature of that government authority and the material it had in determining if the material had to be disclosed by the Crown. (para. 57) [ 57 ] McNeil went beyond treating such matters as exceptions to the requirement that the Crown have possession or control of the material, but there was earlier recognition that, in some cases, the possession and control rule did not go far enough. [ 58 ] I am not persuaded that the McNeil decision is as limited as the Crown submits.

The Crown says it does not have access to these third party records and they do not form part of the case to meet. [ 59 ] The records in McNeil , Melvin and other cases were not records to which the Crown had access but the courts in those cases concluded the Crown had an obligation to try to obtain them. Nor did it matter that the information in them did not form part of the case to meet. [ 60 ] McNei l referred to “ relevant ” material and I conclude relevancy, in that context, is not relevancy to the Crown but to the accused; that is, whether it has the potential to be useful to the accused.

In McNeil , Charron, J. referred to this in paragraph 17, quoted above. As Kozloff, J. said in Furlotte , the records could also be used to advance a defence or assist in making a decision affecting the conduct of the defence, as well as to meet the case for the Crown.

[ 61 ] Police disciplinary records which could undermine the credibility of a police officer who was the Crown ’ s main witness do not form part of the Crown ’ s case to meet but are relevant to the ability of the accused to make full answer and defence. [ 62 ] The Crown also says since the complainant, the Securities Commission, has no obligation to provide its files, the O ’ Connor procedure should be used. In my view, this is contrary to what McNeil says.

In paragraph 47, quoted above, Charron, J. specifically refers to that and says the Crown and hte police can assist in bridging that gap. [ 63 ] The McNeil decision refers to “ notice ” to the Crown.

If the Supreme Court of Canada had intended that there must be a demand or request by the defendant, I conclude it would not have used the word “ notice. ” Although Arsenault was cited and it used the phrase “ disclosure is demanded or requested ” , Charron, J. chose not to repeat those words, but opted for “ notice ” instead. “ Notice ” has a broader meaning and, in many cases, the defendant only discovers the existence of third party documentation by happenstance.

Accordingly, it is sometimes only within the knowledge of the Crown that other information exists and McNeil puts the obligation on the Crown for that reason. [ 64 ] Therefore, the existence of a demand or request by the accused is not the trigger for the Crown to inquire and attempt to obtain. By the same token, a failure by the accused to ask for the information does not relieve the Crown of its obligation. [ 65 ] Nor am I satisfied that McNeil is as limited in scope as the Crown submits.

Charron, J. in McNeil quoted with approval the words of Ryan, J.A. in Arsenault , in a case that involved records of another government agency, not police disciplinary records. [ 66 ] Furthermore, there have been cases prior to McNeil where police disciplinary records had been ordered to be produced. Two were cited in Le , in paragraph 52 of that decision: R. v. Thibault, [1997] B.C.J. No. 3080 and R. v. Lee, 2007 ABQB 454 . In Le , reference was also made to Arsenault, supra , followed by the comment in paragraph 55: [55] ...

It reinforces the important point, however, that the Crown is obliged to disclose any information it learns about, even if the information comes from a third party, unless it falls within the ‘clearly irrelevant’ territory.

This creates the essential link of providing the accused with the necessary information to bring a motion for third party disclosure. [ 67 ] Suche, J. ’ s use of the word “ link ” is similar in concept to that of “ bridging the gap. ” That decision was upheld on appeal after McNeil was released. [ 68 ] As a result of McNeil, it is no longer the sole duty of the Crown to disclose documents which are in its possession or control.

That is still clearly a requirement but the duty to disclose does not end there in some circumstances. [ 69 ] Nor do I conclude that information which the Crown must inquire and attempt to obtain is limited to information arising from a joint investigation. Although it appears from Arsenault there was a joint investigation, the decision in McNeil does not use such limiting words when it describes the Crown obligation. Charron, J. simply refers to relevant material or relevant information in paragraphs 48 and 49.

This is reinforced when, in paragraph 50, Charron, J. refers to the duty of the Crown when it becomes aware of potentially relevant information about the credibility of one of its witnesses. In Ahmad , the court concluded CSIS conducted its own separate investigation. [ 70 ] The records are third party records but, when the conditions referred to in McNeil are met, the Crown has an obligation to inquire and attempt to obtain them.

If it does obtain the records, then they are treated like fruits of the investigation and Stinchcombe applies to them. [ 71 ] McNeil provides a streamlined process which, when its conditions are met, bridges the gap between first party disclosure and third party production. If neither Stinchcombe nor McNeil apply, the O ’ Connor regime may be available to an accused.

CONCLUSION [ 72 ] The Crown knew of the Securities Commission investigation and that the Securities Commission had information. The Crown admits there is relevant information in the Securities Commission ’ s files. Accordingly, the Crown had an obligation to inquire and attempt to obtain that information. I find that it breached that obligation. [ 73 ] It seems clear that had the Crown met its obligation, the forty boxes of material delivered to Blois Colpitts ’ counsel pursuant to the subpoena would have been delivered to the Crown.

The only question is the timing of that delivery had the Crown requested the material at a time before the subpoena was issued. [ 74 ] However, the issue is, in my view, now moot because Blois Colpitts has the Securities Commission material now. Therefore, it is appropriate to grant the alternate remedy sought, which is to grant Blois Colpitts access to the material he now has. [ 75 ] It appears some information is not included in those files and, if Blois Colpitts seeks that information, an O ’ Connor application is the option available to him. Hood, J.