2021 QCCQ 4766, 2021 QCCQ 4766

Translated from the original French R. c. Accurso 2021 QCCQ 4766 JH 5496 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL “Criminal and Penal Division” Nos.: 500-73-003792-120 500-73-004616-187 DATE: April 15, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE MÉLANIE HÉBERT , J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

ANTONIO ACCURSO FRANCESCO BRUNO FRANCESCO FIORINO ADRIANO FURGIUELE ANTONIO GIRARDI Accusé ______________________________________________________________________ DECISION ON AN APPLICATION FOR A STAY OF PROCEEDINGS GIVEN THE STATE’S ABUSIVE AND UNLAWFUL CONDUCT (R6) ______________________________________________________________________ [ 1 ] Accurso, Bruno, Fiorino, Furgiuele and Girardi are charged with fraud, forgery, breach of trust of a public official, and conspiracy to commit these offences.

They are being tried jointly [1] for these offences. [ 2 ] In support of the charges, the Crown alleges that the accused participated in a tax evasion scheme to bribe Girardi and Furgiuele, two Canada Revenue Agency (“CRA”) employees, so that they would protect Accurso’s companies or grant them favourable tax treatment. [ 3 ] This tax evasion scheme began when Accurso transferred millions of dollars from three of his companies, Simard-Beaudry, Hyprescon, and Louisbourg Construction, to two companies controlled by Bruno, 3703436 and Entretien Torelli, and to a third company outside the country, Beaudoin & Frères, for the benefit of Bruno, Furgiuele, and Girardi. [2] False invoices were issued at times to justify the money transfers.

The money received by 3703436, Entretien Torelli, and Beaudoin & Frères was then transferred to various offshore bank accounts and ultimately deposited into Swiss bank accounts owned by Bruno, Furgiuele, and Girardi. [ 4 ] Moreover, the Crown claims that the accused participated in various fraudulent acts to camouflage this financial scheme during a CRA tax audit of 3703436.

More specifically, a “Plan of Action” that required the creation of false documents was implemented to give the impression that 3703436 had no revenues and no activities in Canada. [ 5 ] At trial, the accused filed an application to stay proceedings after two days of evidence, alleging that the conduct of the State, represented by the Crown, was affecting the fairness of the trial and the integrity of the judicial process. The accused’s allegations fall into three categories. The first category concerns the Crown’s breaches of its obligation to disclose evidence.

The second concerns the way the Crown adduced the evidence, which the accused claim misled the witnesses. Finally, the third category concerns the Crown’s answer to the application for a stay that, the accused claim, contains many documents that are irrelevant and prejudicial. The accused add that to continue their trial would only manifest, perpetuate, and aggravate the prejudice to the fairness of the trial and the integrity of the judicial process stemming from the Crown’s conduct.

Therefore, the only remedy that can re-establish their right to a fair trial or dissociate the judicial process from the Crown’s conduct is a stay of proceedings.

[ 6 ] The Crown disputes each allegation by the accused and submits that its conduct affects neither the fairness of the trial nor the integrity of the judicial process. All the relevant evidence has been disclosed, the witnesses have not been misled, and the evidence produced in answer to the application for a stay of proceedings is necessary to decide the issues raised by that application. The accused’s trial must therefore continue. [ 7 ] A stay of proceedings is the most drastic remedy a criminal court can order because it permanently halts the prosecution.

In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done. [3] A stay of proceedings is rarely warranted and only in the clearest of cases. [4] An accused who seeks this remedy therefore bears an onerous burden. [5] The accused must in particular meet the following requirements: (1) prove that the Crown’s conduct affects the fairness of the trial or the integrity of the judicial process and that this prejudice “will be manifested, perpetuated or aggravated” through the conduct of the trial; (2) prove that there is no alternative remedy capable of redressing the accused’s right to a fair trial or that allows the justice system to dissociate itself from the Crown’s conduct; and (3) prove that the balance of the interests at stake favours granting a stay of proceedings. [6] [ 8 ] Before beginning the analysis on whether a stay of proceedings is warranted in this case, the Court must first answer the following question: are the accused’s allegations concerning the Crown’s conduct founded?

In this regard, the Court finds that the Crown breached its obligation to disclose evidence to the accused by failing to at least sufficiently inform itself on the nature of certain documents before deciding that the documents were irrelevant and therefore not subject to its disclosure obligation.

The Court also finds that when preparing its response to the application for a stay, the Crown did not take the necessary steps to ensure that information that was both irrelevant and seemingly prejudicial to the accused was not brought to the Court’s attention. [ 9 ] Having concluded that the Crown breached some of its obligations, the Court must consider whether to grant a stay of proceedings.

In this regard, the Court finds that it does not have sufficient information on the nature of the undisclosed documents to decide whether the Crown’s conduct affected the fairness of the trial or the integrity of the judicial process, or to decide whether there is a remedy short of a stay capable of redressing the right of the accused to a fair trial or that allows the justice system to dissociate itself from the Crown’s conduct.

The Court therefore cannot rule on the application to stay proceedings. [ 10 ] Given the foregoing, the Court suspends the trial and the application to stay proceedings, and orders the Crown to disclose the documents that were not disclosed to defence counsel. ANALYSIS I. Are the accused’s allegations concerning the Crown’s conduct founded? A. Facts [ 11 ] In 2008, the CRA conducted a penal tax investigation named “Projet Legaux”.

The scope of that investigation, which initially targeted Bruno and his companies, eventually was broadened to include Accurso and his companies as well as Furgiuele and Girardi. [7] [ 12 ] Between May 2008 and November 2009, the CRA executed 25 search warrants in various locations, including 3703436’s place of business, Fiorino’s office, 3703436’s accountant, the offices of Simard-Beaudry, Louisbourg Construction, Hyprescon, and the offices of their accountants, as well as the homes of Bruno, Furgiuele, and Girardi. [8] During these searches, the CRA seized over 500 boxes of documents and computer material. [9] [ 13 ] In August 2008, after the search warrants related to Bruno and his companies were executed, Fiorino went to the CRA offices to consult certain seized documents. [10] [ 14 ] In 2008, the CRA filed a complaint with the Royal Canadian Mounted Police (“RCMP”), which began a criminal investigation named “Projet Coche” into the possible corruption of CRA employees.

That investigation, which was independent from the CRA’s investigation, was eventually split into several components. The component relevant to this case was called “Plan of Action”. [11] [ 15 ] In 2011, the Agence du revenu du Québec (“ARQ”), which was conducting its own penal tax investigation, executed search warrants in the CRA offices. The warrants covered property seized by the CRA in 2008 and 2009 under the “Projet Legaux” investigation.

During this search, the ARQ seized over 600 boxes of documents, thereby dispossessing the CRA of property seized in 2008 and 2009. [12] [ 16 ] The CRA, RCMP, and ARQ investigations all had different objectives but the Crown admits that they were inextricably linked because they all stemmed from steps taken by the CRA following a tax audit of 3703436. [13] [ 17 ] Following the “Projet Legaux” investigation, the CRA instituted penal proceedings against Bruno, Entretien Torelli, 3703436, Simard-Beaudry, and Louisbourg Construction. [14] Following its own investigation, the ARQ instituted penal proceedings against Bruno and Accurso as well as against Simard-Beaudry, Louisbourg Construction, and Hyprescon. [15] [ 18 ] During the penal proceedings, various information was disclosed to counsel for Bruno and Accurso, in particular related to the warrants executed by the CRA and the ARQ. [16] [ 19 ] In addition, the warrants executed by the CRA and/or the ARQ were the subject of many court proceedings over the years involving at times Accurso, Bruno, Furgiuele, Fiorino and/or Girardi.

During these various court proceedings, information about the searches was disclosed to the counsel involved. [17] [ 20 ] In August 2012, following the “Plan of Action” component of the RCMP’s investigation, the Crown laid these charges against Accurso, Bruno, Fiorino, and Furgiuele. [ 21 ] The first disclosure occurred during a meeting in October 2012, attended by Pierre Breton, the RCMP investigator responsible

for managing the evidence for “Projet Coche”, the Crown prosecutors, and defence counsel.

The purpose of the meeting was to give defence counsel a hard drive containing the evidence and to explain how it worked so that they could navigate the evidence. [ 22 ] The hard drive contained information related to the CRA’s “Projet Legaux” investigation, in particular the following: • Two prosecution reports prepared by CRA investigators, one on 3703436 and the other on Entretien Torelli. [18] These reports described the investigators’ findings with references to exhibits. • A document titled [ translation ] “Projet Legaux - List of exhibits” (the [ translation ] “List of Projet Legaux exhibits”), [19] which contained namely a list of exhibits. • The CRA reports to the justice of the peace after the search warrants were executed, to which were attached inventories of the documents seized. [20] • The notes of the CRA investigators who helped the ARQ investigators during the ARQ searches in 2011. [21] [ 23 ] The evidence was later disclosed by providing defence counsel with a USB key containing the new material and, eventually, an update of their hard drive. [22] In October 2014, a folder titled “ARQ” was added to defence counsel’s hard drive. [23] This folder contained information disclosed by the CRA, as a required third party, in the cases between the ARQ and Bruno and Accurso. [24] [ 24 ] From 2012 to 2018, defence counsel presented various requests for disclosure in this case, that the Crown classified in two waves.

The first includes requests by counsel for Accurso for information related to the CRA “Projet Legaux” investigation. [25] The second includes requests by counsel for Bruno and Fiorino for information to support a challenge of the CRA search warrants (a Jarvis application). [26] None of these requests were to obtain information on the content of the exhibits seized by the CRA or their treatment by the ARQ. [27] [ 25 ] In 2016, during the accused’s preliminary inquiry, two CRA investigators involved in the “Projet Legaux” investigation testified.

Cavanagh explained that the CRA search warrants executed generated an [ translation ] “astronomical amount of documents and computer elements”, in reference to over 500 boxes. He provided details on the circumstances surrounding the ARQ searches in 2011, and referred in particular to discussions he had, at the time of the searches, with counsel then representing Accurso.

Landreville also testified on the ARQ search warrants executed at the CRA offices. [28] [ 26 ] During 2017, the Crown informed defence counsel that disclosure of the evidence was complete. [29] [ 27 ] In November 2017, evidence from the “Plan of Action” component was disclosed to counsel for Girardi. One year later, the Crown laid these charges against Girardi. Girardi waived his preliminary inquiry and his case was eventually joined to that of Bruno, Accurso, Fiorino, and Furgiuele for trial. [ 28 ] A case management judge was assigned.

The case management judge dealt with certain applications for disclosure presented during the second wave and rendered several decisions in this regard. [30] She also heard applications challenging the CRA search warrants ( Jarvis applications), which she dismissed. [31] [ 29 ] The joint trial of the accused began in January 2021. The first days were devoted to various preliminary applications and issues. One of these issues concerned the need to file the original documents.

During discussions on this issue, one member of defence counsel informed the Court that he believes the Crown does not have the original documents. [ 30 ] Evidence on the current charges began to be adduced on January 25, 2021. The Court was then informed that, at the Crown’s request, the ARQ had brought the boxes containing the documents that the Crown wanted to adduce during the first few days of trial. [ 31 ] The first seven Crown witnesses explained that they had participated in the 2008 and 2009 searches as CRA employees.

Five of them, including Mario Drapeau, testified that they seized documents during these searches. During their testimony, the Crown showed them documents that were then filed in the Court record. [ 32 ] Mario Drapeau explained that he searched and seized documents at the offices of Samson Bélair, Simard-Beaudry’s accountant. The Crown showed him a search envelope and documents. Drapeau was somewhat hesitant, but confirmed that those documents were the ones that he had seized.

He explained his hesitation by stating namely that the notes on the search envelope he was shown by the Crown, on which he recognized his handwriting, described the documents seized as being Simard-Beaudry’s audit files numbered 8 of 11, 9 of 11, 10 of 11, and 11 of 11, while the documents he was shown were a letter and a contract in connection with Simard- Beaudry, [32] a Simard-Beaudry document titled [ translation ] “Income statement - major projects”, [33] and a printed sheet on which was written [ translation ] “cost per unit analysis” in connection with Simard-Beaudry. [34] That said, Drapeau stated that the documents he was shown by the Crown were documents that could be found in accounting files and were the kind sought during the search. [ 33 ] The Crown’s next witness was Annie Lachapelle, a CRA investigator now responsible for disclosure of evidence related to the “Projet Legaux” investigation.

Lachapelle explained the following: • The CRA no longer has the “original” documents seized during the 2008 and 2009 searches in connection with the “Projet Legaux” investigation because they were seized by the ARQ in 2011. • The ARQ initially seized the search envelopes but later returned them to the CRA, without returning the documents seized. [35] The CRA therefore has the “original” search envelopes completed by its seizing officers, on which there was a description of the seized property, but the envelopes are empty. • The CRA has “working copies” of some seized documents, [36] and Lachapelle works with these copies.

The CRA has many working copies of the same document. It is not easy to find the “original” copy.

• In the week leading up to the start of testimony, Lachapelle was instructed to find the “original” documents held by the ARQ and which the Crown wanted to file in evidence at this trial. That is the context in which she first had access to the documents seized by the ARQ. • Using a working document that allows her to correlate the number initially assigned to a box by the CRA investigators and the number assigned to that same box by the ARQ investigators, Lachapelle identified the boxes containing the documents to be filed in evidence at trial.

Based on the working document, she knew for example that CRA box R-43 is ARQ box 692. • Lachapelle went to the ARQ offices with other investigators and started to search for the “original” documents. While doing so, she realized that the ARQ had stored the documents in the original boxes, meaning in the boxes in which the CRA investigators had originally placed them.

Therefore, ARQ box 692 still has the R-43 label affixed by the CRA investigators. • Lachapelle also realized that copies of the search envelopes completed by the CRA seizing officers were in the boxes, with the documents. • Lachapelle searched through the different boxes for the “original” documents. Once she found the document, she labelled it with a post-it so that it could be easily found during the testimony of the person who had seized it.

To ensure that she identified the proper document, she compared it to the working copy of the document in the CRA file. • The day testimony began, an ARQ investigator was in the courtroom, with the boxes of documents that the Crown wanted to enter into evidence. Lachapelle had the “original” search envelopes. • When a witness was called, Lachapelle went to the back of the courtroom where the boxes were and removed the “original” document seized by that witness.

She gave the document to the Crown prosecutor with one hand and the empty “original” search envelope with the other. • The witnesses neither participated nor were consulted during this exercise to find the “original” documents. • Lachapelle illustrated how she finds the “original” documents by using as an example exhibit P-146, Simard-Beaudry’s document titled “Income statement - major projects”, shown to Drapeau during his testimony. She explained that this document was labelled 3-105 for the CRA and was in CRA box R-43, which contains documents seized at Samson Bélair.

During her testimony, she removed a folder from box R-43 and showed where the document was before it was shown to Drapeau. Lachapelle’s exercise established that exhibit P-146 was in a folder in a bundle of documents, in a box containing other folders. • Lachapelle conducted a similar exercise with exhibit P-147, a printed sheet with the words [ translation ] “cost per unit analysis” written on it related to Groupe Simard-Beaudry. This exercise revealed that the page shown to Drapeau and subsequently filed in the Court record came from a document of several pages, attached together.

Lachapelle explained that she detached the page corresponding to exhibit P-147 from this document and gave it to Crown counsel. • Lachapelle cannot confirm whether the other pages of exhibit P-147 or the other documents in box R-43 were disclosed to the defence. She does not know whether the other documents initially seized by the CRA but currently held by the ARQ were disclosed to the defence.

She never had access to all the ARQ boxes containing the documents initially seized by the CRA. • Since 2014, she has been handling requests for the disclosure of evidence using the CRA’s working copies because she does not have access to the “original” documents. Notes are often written on these working copies. [37] [ 34 ] The accused allege that this context gives rise to their belief that the Crown has not disclosed all the evidence.

Their application to stay proceedings includes two series of allegations: the first one concerns the Crown’s disclosure obligation and the second one concerns the way in which the Crown has adduced the evidence. [38] [ 35 ] The Crown denies all of the accused’s allegations.

It filed a written answer to the application to stay proceedings, accompanied by many documents. [39] After these documents were filed, the accused submitted a third series of allegations, i.e., the filing of many documents irrelevant to the application but that contain information prejudicial to them. [ 36 ] During the application to stay proceedings, the RCMP’s Breton testified on how the evidence was disclosed in this case. [40] On cross-examination, he admitted that he had never seen the ARQ boxes containing the documents seized by the CRA in connection with “Projet Legault”. [ 37 ] Lachapelle also testified.

Her testimony as well as the analysis of the documents to which she referred establish the following: • The [ translation ] “List of Projet Legaux exhibits” [41] is her “bible”.

Section 3 of that list includes the 123 exhibits that the CRA investigators considered relevant among the documents seized. In addition to providing a description of the exhibit, the list helps her locate the documents in the CRA boxes. • The relevance of the exhibits on the [ translation ] “List of Projet Legaux exhibits” is explained in the prosecution reports. [42] A hyperlink provides access to the digitalized exhibits. • Only 24 cheques appear on the [ translation ] “List of Projet Legaux exhibits”, while thousands of cheques are mentioned in the prosecution reports. [43] • Once printed, the 123 exhibits in

section 3 of the [ translation ] “List of Projet Legaux exhibits” fill three boxes. The list describing these exhibits is 18 and a half pages. In comparison, the inventories prepared by the CRA investigators after executing the CRA search warrants are 168 pages long. [44]

• After the first two days of trial, Lachapelle was instructed to verify the content of the search envelopes related to the documents the Crown wants to adduce into evidence in this case. [45] The stated purpose was to determine whether there are any remaining documents to disclose to defence counsel. • The ARQ currently holds some of the documents the Crown wants to adduce into evidence.

These documents are in 12 different boxes. [46] Lachapelle went to the ARQ offices and consulted approximately 25 boxes because some of these 12 boxes have [ translation ] “sister boxes”. [47] Crown counsel did not accompany her to see what was in the boxes. • To start, Lachapelle found the box containing the document the Crown wants to adduce into evidence and verified whether there was any remaining documents either in the same folder or in the same box, where applicable. If there was a remaining document, she verified whether it should be disclosed to defence counsel.

If necessary, she could consult Crown counsel. • The purpose of that exercise was to determine whether, among the remaining documents, there was any other document related to an exhibit the Crown wants to file in evidence. Consequently, when Lachapelle conducted this exercise, she did not consider the relevance the document might have to the accused’s defence. • Lachapelle explained the observations she made during this process as well as the various decisions taken regarding disclosure of the other documents.

Her testimony and the Excel table she prepared [48] establish the following: - Exhibit P-87 [49] is Bruno’s Visa statement for the period from January 11 to February 10, 2006, found in box ARQ-45. This box has nine folders. Lachapelle looked at the labels of the nine folders. One was titled “Visa-Frank” and contained exhibit P-87. The decision made was to disclose the balance of the documents in that folder to defence counsel but not the documents in the eight other folders because they are irrelevant.

For example, the folder labelled “Visa - Alfredo” is irrelevant. - Exhibit P-96 contains various banking documents of Entretien Torelli. These documents were seized along with other items in a blue box containing stamps, a partially used deposit booklet, and another unused one, cheque stubs, etc. The decision made was not to disclose the remaining documents. - Exhibits P-98 to P-101 [50] were in envelopes in box ARQ-685. Exhibits P-98 and P-99 were each in an envelope. No other document was in these two envelopes. Exhibits P-100 and P-101 were in the same envelope. No other document was in the envelope.

Because there were no remaining documents in the envelopes, the decision made was to disclose nothing further. - Exhibit P-125 is a yellow folder labelled [ translation ] “Audit - 3703436 Canada inc.” containing several documents. That folder, whose content was disclosed, was in box ARQ-719, with other folders whose content was not disclosed. Because the content of the entire folder was disclosed, there was no remaining document. The decision made was to disclose nothing further. - Exhibits P-137 and P-138 include eight cheques issued by Simard-Beaudry to Entretien Torelli or to 3703436.

These cheques were seized with other cheques, in a box, at Simard-Beaudry’s place of business. The seized cheques were put in three different boxes. The cheques in exhibit P-137 are in box ARQ-684 while the cheques in exhibit P-138 are in box ARQ-704. Each of these boxes contains cleared cheques, issued by Simard-Beaudry, that were not disclosed to defence counsel. The decision made was not to disclose the remaining documents in these two boxes because they were cheques.

In this regard, Lachapelle noted that André Faribault, a CRA investigator, analyzed all the seized cheques issued by Simard-Beaudry and concluded that only these eight cheques were relevant. [51] - Exhibit P-139 contains two invoices issued by Entretien Torelli to Louisbourg Construction. These two invoices were seized in a folder labelled “Torelli maintenance”. They were the only two documents in that folder. The folder was seized at Louisbourg Construction’s place of business in a big box containing different folders labelled with the names of various suppliers.

The decision made was not to disclose the documentation on the other suppliers because it is irrelevant. Exhibit P-141 contains two cheques issued by Louisbourg Construction to Entretien Torelli while exhibit P-142 contains eight cheques issued by Hyprescon to 3703436. These cheques were seized from among bundles of cleared cheques at Louisbourg Construction and Hyprescon’s place of business. Banking reconciliation statements were also seized with these cheques.

The decision made was not to disclose the cheques and the banking reconciliation statements to defence counsel because they are unrelated to the documents the Crown wants to file in evidence. - The exhibit identified as “TabB-L24”, a credit memo for the B.T. Céramiques account, was found in box ARQ-696. That document was seized with B.T. Céramiques cheques and banking reconciliation documents at its place of business. These other documents were not disclosed.

The decision made was not to disclose them. • The week before she testified, Lachapelle received an inventory of documents seized by the CRA during the 2008 and 2009 searches. The inventory is a little over 1,500 pages long and was prepared by the CRA investigators. Based on the inventory, she concluded that the documents initially seized by the CRA in 2008 and 2009 and now held by the ARQ are stored in 802 boxes. • Lachapelle confirms that most of the documents seized by the CRA during “Projet Legaux” were not disclosed to defence counsel. Nobody ever asked her to go see the 802 boxes held by the ARQ. B.

The first allegation: the Crown breached its obligation to disclose the evidence Principles on disclosure of evidence [ 38 ] The Crown has an obligation to disclose all relevant information in its possession relating to the investigation against the accused unless it is privileged or its disclosure is otherwise governed by law. This obligation is not limited to information that the Crown intends to adduce in evidence against the accused.

It also includes any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence. [52]

[ 39 ] The criterion of relevance is very low when it comes to the Crown’s obligation to disclose the evidence. Therefore, information is relevant if it can reasonably be used by the defence in meeting the case for the Crown, advancing a defence or in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence. [53] If there is doubt as the relevance of information, the Crown must disclose it. [54] [ 40 ] The Crown, however, need not disclose information that is clearly irrelevant to the charges. Guité c.

R. [55] is an example of the need to assess relevancy in relation to the charges laid and not in the abstract. [ 41 ] Guité managed a sponsorship program and communications contracts. He was charged with fraud in connection with five communications contracts. At trial, Guité presented an application for disclosure of the evidence gathered during a joint RCMP-Sûreté du Québec (“S.Q.”) investigation into all the sponsorship program contracts, which involved thousands of contracts granted to various advertising agencies.

During the hearing of that application, investigators explained that the evidence gathered as part of the investigation was irrelevant to the charges laid against Guité based on the difference between the sponsorship program contracts and those covered by the charges laid against Guité. The investigators confirmed that their investigation did not cover the five contracts for which Guité was charged.

The trial judge dismissed Guité’s application and decided that the information sought was clearly irrelevant, given the nature of the charges. [ 42 ] The Court of Appeal affirmed the trial judge’s decision and recalled that since the obligation to disclose the evidence is limited to giving the accused the information relevant to the charge laid, the Crown did not have an obligation to give Guité the fruits of the on- going investigation. In this regard, the Court of Appeal stated [ translation ] “[h]ere, the application by defence counsel was vast and extended well beyond the contracts covered by the charge.

The fact that the appellant acted in many other contracts ... does not mean that all the files reviewed by the RCMP and the SQ must be given to him”. [56] [ 43 ] In

summary, the Crown’s obligation to disclose the evidence admits of few exceptions and covers a vast array of information.

The Crown must disclose all material in its possession unless it is clearly irrelevant, privileged, or its disclosure is otherwise governed by law. [57] That said, as vast as the notion of relevance is, it must still be assessed in relation to the charges and not in the abstract. [ 44 ] The obligation to disclose the evidence does not extend, however, to information that is not within the Crown’s possession or control. [58] In this regard, the police must disclose to the Crown all the fruits of the investigation, i.e., the information stemming from the investigation into the accused.

This police duty is corollary to the Crown’s duty because in Canadian public law, the police, not the Crown, investigate crime. [59] In this sense, while the police and the Crown are separate state entities, they are viewed as one entity for the purpose of disclosing the fruits of the investigation to the accused. [60] [ 45 ] However, all state authorities do not constitute a single state entity.

Thus, to fulfill its disclosure obligation, the Crown does not have to inquire of every department and every police force whether they are in possession of material relevant to the charges laid against the accused. [61] That said, Crown counsel put on notice of the existence of relevant information held by another state entity must inquire further and obtain that information.

As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice. [62] [ 46 ] The Crown has discretion as to the manner and timing of disclosure. [63] For example, the Crown may delay disclosure of information about a witness to avoid harming an on-going investigation or refuse to disclose material that is clearly irrelevant.

However, this discretion is reviewable by the court. [64] [ 47 ] When the Court has to determine a dispute regarding the disclosure of information, the Crown must justify its refusal to disclose it, either by establishing that the information is not under its control or that it is clearly irrelevant, privileged, or its disclosure is otherwise governed by law. [ 48 ] Although the disclosure obligation falls to the Crown, defence counsel must also be diligent. The very nature of the disclosure process makes it prone to human error.

Thus, defence counsel who becomes aware of the Crown’s failure to disclose evidence must bring it to the attention of the judge at the earliest opportunity so that it may be remedied by the Crown or, if there is a dispute, the court.

Defence counsel cannot simply make a strategic decision not to mention that omission and raise it later, when it will be too late to remedy it. [65] The fair and efficient functioning of the justice system requires that defence counsel, as officers of the court, exercise due diligence in actively seeking and pursuing Crown disclosure. [66] [ 49 ] Defence counsel’s disclosure obligation is in perfect keeping with its obligations to both its client and the courts.

While defence counsel must actively advance their clients’ rights, as officers of the court, they also have a duty to collaborate with Crown counsel to use court time efficiently. A practice where counsel observes that the Crown has breached its disclosure duty and waits to raise it at trial is simply no longer acceptable, as the Supreme Court noted in R. v. Cody . [67] [ 50 ] Furthermore, court experience has shown that the more complex a case, the more complex the legal issues normally associated with disclosure of the evidence, such as whether information is the fruit of the investigation or relevant.

In such a case, it is all the more necessary for the parties to collaborate. This Court must decide the following issues regarding the first allegations [ 51 ] The accused allege that the Crown breached its obligation to disclose the evidence by: (

i) failing to disclose the documents seized by the CRA during the “Projet Legaux” investigation that will not be filed in evidence; (ii) deciding that these documents are irrelevant without first having analyzed them; (iii) failing to inform defence counsel of its decision not to disclose these documents; and, (iv) failing to inform defence counsel that the CRA no longer has these documents. The first three allegations concern the non-disclosure of documents initially seized by the CRA during “Projet Legaux” and can therefore be dealt with together. The fourth deals with the dispossession of the CRA and therefore must be dealt with separately.

[ 52 ] In response to these allegations, the Crown answers that it has disclosed all the relevant information. The Crown adds that in light of the information disclosed in this and other cases, [68] defence counsel knew, could have known, or ought to have known that the Crown had not disclosed all the documents seized by the CRA. Their inaction supports one of the following inferences: either they considered these other documents irrelevant, or waived their disclosure, or knowingly waited for the trial to begin before raising the issue so that they could ask for a stay of proceedings.

As to the CRA’s dispossession, the Crown alleges that it disclosed all the relevant information in this regard, and adds that the accused and their counsel knew that the CRA no longer had the documents it initially seized. [ 53 ] The Court must therefore determine the following two issues:

(1) Has the Crown breached its obligation to disclose the evidence by not disclosing every document seized by the CRA to defence counsel?

(2) Has the Crown breached its obligation to disclose the evidence by not disclosing all the information concerning the fact that the CRA no longer had the initially seized property? While analyzing these two issues, the Court must also determine what the accused and their counsel knew. Has the Crown breached its obligation to disclose every document seized by the CRA? [ 54 ] The CRA and the RCMP are two separate state entities that each conducted their own investigation.

The CRA’s “Projet Legaux” investigation is penal and resulted in tax evasion charges while the “Projet Coche” investigation is criminal and resulted in these charges, under the “Plan of Action” component.

The fact that the CRA, worried that some of its employees were corrupt, filed a complaint with the RCMP and triggered its investigation does not mean that these two entities should be considered as a single entity, or that their respective investigations should be considered as a joint investigation. [ 55 ] That said, certain facts are relevant to both these investigations, at least with respect to the “Plan of Action” component of the “Projet Coche” investigation.

For example, both these investigations examined cheques signed by Accurso, drawn on the accounts of Simard-Beaudry, Hyprescon, and Louisbourg Construction, made out to 3703436 and Entretien Torelli as well as certain invoices issued in exchange for these payments. Both these investigations also examined the [ translation ] “plan of action” to frustrate the CRA’s tax audit of 3703436.

While these two investigations had different objectives, certain facts are relevant to both investigations. [69] [ 56 ] Some of the fruit gathered by the CRA during the “Projet Legaux” investigation contributed to the “Plan of Action” component of the RCMP’s investigation. For example, the Crown’s first seven witnesses called at trial explained that they participated in CRA searches as part of “Projet Legaux”. Five of these witnesses filed documents seized during these searches.

Lachapelle’s Excel table indicates that 42 exhibits the Crown wants to file in evidence come from these searches. [70] There is therefore no doubt that the Crown will use many of the documents seized by the CRA during the “Projet Legaux” searches at the trial of the accused. [ 57 ] The fact that the CRA investigation contributed to the RCMP investigation may give rise to two different legal realities regarding the Crown’s obligation to disclose the evidence.

In the first scenario, the fruits of the CRA investigation are considered as having been incorporated into those of the RCMP investigation and must therefore be disclosed, except where they are clearly irrelevant, privileged, or their disclosure is otherwise governed by law.

In the second scenario, the fruits of the CRA investigation remain independent of those of the RCMP investigation, but Crown counsel must inquire further into the other documents seized by the CRA, namely to verify whether some of them should be disclosed. [71] These two scenarios, while legally different, have one point in common: they require that the Crown at least make reasonable inquiries into the nature of the other documents seized by the CRA to take a position on its disclosure obligation. [ 58 ] In this case, Crown counsel disclosed 42 exhibits to defence counsel, which he intends to use at the trial of the accused and which were initially seized by the CRA.

Crown counsel further admits that he did not disclose the other documents seized by the CRA, some of which were seized during the same search and thus at the same location. In this regard, Crown counsel submits that he fulfilled his obligation to disclose the evidence. The other documents seized by the CRA do not have to be disclosed because they are simply irrelevant.

The Crown’s reply raises more questions than it answers. [ 59 ] The evidence does not establish whether anyone, be it a “Projet Coche” investigator or a Crown prosecutor, at any time before the trial of the accused began, consulted the other documents seized by the CRA to determine whether they should be disclosed to defence counsel in this case. [72] On the contrary, the evidence shows that the ARQ has had many of these documents since 2011, therefore, before these charges were laid.

Breton never had access to the documents held by the ARQ and Lachapelle had access to them for the first time in the week before testimony began. Moreover, the evidence does not reveal whether steps were taken by anyone, be it a “Projet Coche” investigator or a Crown prosecutor, to obtain more information on the nature of the other documents initially seized by the CRA but now held by the ARQ and of which the Crown had no copy.

Without having taken this step, how can the Crown make an informed decision on its obligation to disclose these other documents? [ 60 ] That is why the Crown’s statement that these documents are irrelevant raises so many questions. How can it be said that a document is irrelevant when it has not been seen? What is the Crown’s basis for stating that the documents are irrelevant? On the description of the documents in one of the inventories filed as exhibits? If so, which inventory? What verification was done to ensure that the description of the seized documents is reliable or at least accurate?

All these questions remain unanswered. [ 61 ] The only reply available to the Court is in the Crown’s arguments: the other documents seized by the CRA are irrelevant to these charges given the different objectives of the two investigations. The “Projet Legaux” investigation is meant to support tax evasion charges, and requires an analysis of a company’s entire accounting, including all its disbursements and therefore every cheque issued in the course of its business. This accounting is irrelevant to the criminal charges. Only transactions conducted as part of the fraudulent financial scheme are relevant.

Thus, the only relevant cheques are those that allowed Simard-Beaudry, Hyprescon, and Louisbourg Construction to transfer money to 3703436, Entretien Torelli, or Beaudoin & Frères. The other cheques issued by Simard-Beaudry, Hyprescon, and Louisbourg Construction in the course of their business are irrelevant. Similarly, the only relevant invoices are those issued by 3703436 or by Entretien Torelli to Simard-Beaudry, Hyprescon, and Louisbourg Construction.

The other invoices issued by 3703436 or by Entretien Torelli or received by Simard-Beaudry, Hyprescon, and Louisbourg Construction are irrelevant. [ 62 ] The Crown’s argument has certain flaws. First, the Crown relies on Guité , but that judgment must be distinguished because in

this case, the Crown did not adduce any evidence establishing that the documents are in fact irrelevant. It should be recalled that in Guité , investigators testified on the nature of the information held and explained why it was irrelevant to the charges laid against Guité. [ 63 ] Second, the Crown’s reasoning is based on a notion of relevance that is inconsistent with the one developed by the case law on disclosure of the evidence.

It should be recalled that although relevance must be assessed by taking into account the charges laid, it is not limited to the evidence that the Crown wants to enter in evidence or that is directly related to its theory on the case. The relevance test is quite low at the disclosure stage.

Information is relevant if it can reasonably be used by the defence either in meeting the case for the Crown, advancing a defence or in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence. [73] Because it is difficult for the Crown to assess what relevance information might have for the defence, the information must be disclosed if there is any doubt. [ 64 ] Third, the disclosure obligation plays an important role in criminal matters because it is one of the components of an accused’s right to make full answer and defence.

While the Crown need not analyze every page of every document to decide whether it should be disclosed, [74] it cannot refuse to disclose based on an assumption regarding the relevance of documents as was done in this case, even if this assumption is possibly or probably correct. In cases with voluminous documentation, the Crown must take steps to obtain sufficient information on the material before deciding that it need not be disclosed.

Where the documentary evidence is voluminous, the Crown can rely on a document inventory to make this decision where it is satisfied this inventory accurately reflects the documents. If not, the risk of error is too high. It should be recalled that in this case, the Crown entered into evidence a printed sheet with the words [ translation ] “cost per unit analysis” [75] written on it, without telling the witness that when it was seized, this sheet was attached to other sheets.

This example alone shows that, with respect to the documents initially seized by the CRA and now held by ARQ, the Crown is working with unreliable tools. [ 65 ] In light of all the evidence, the Court finds that the Crown has not fulfilled its obligation to disclose the evidence by failing to at least make reasonable inquiries into the nature of the documents initially seized by the CRA, now held by the ARQ, before deciding not to disclose them because they are irrelevant. The Court also finds that the Crown lacked transparency by failing to inform defence counsel of its decision not to disclose these documents.

It should be noted that the Crown’s discretion to disclose evidence is reviewable by the court. This review is difficult to exercise when the Crown fails to indicate that it is using this power to not disclose documents. [ 66 ] What of the Crown’s allegation regarding the accused’s knowledge?

Several facts or arguments raised by the Crown in this regard must be placed in context, or at least tempered: • It is true that Fiorino had access to the documents seized by the CRA in August 2008 but at that time, the “Projet Légaux” investigation was still active and the searches of Accurso’s companies had not yet been executed. Moreover, there were four years between that access and the time the charges were laid. • Counsel for Bruno in the CRA’s penal case knew that not all of the documents seized by the CRA had been disclosed to him.

This does not mean, however, that he knew that all of these documents had not been disclosed to him in this case. As previously stated, the CRA is a different state agency from the RCMP and its investigation was penal, not criminal.

The decision by counsel for the CRA to disclose evidence in the penal proceeding was not automatically transposed to this case. • After reading the prosecution reports prepared by the CRA investigators in “Projet Legaux”, [76] the Court notes that not every cheque analyzed was included in the List of Projet Legaux exhibits. [77] This does not mean that these cheques are not included elsewhere in the evidence disclosed. • The inventories of documents seized by the CRA are 168 pages long [78] while the List of Projet Legaux exhibits is 18 pages long.

While this tends to establish that not every document seized by the CRA is included in the List of Projet Legaux exhibits, this does not mean that they are not included elsewhere in the evidence disclosed. • The fact that many requests for disclosure of the evidence by defence counsel in this case concern matters other than the documents seized by the CRA does not necessarily mean that defence counsel consider these documents irrelevant.

The absence of such requests could mean that defence counsel believed that these documents had been disclosed. [ 67 ] Thus, the evidence presented during the stay application points towards clues that could indicate to the accused or their counsel that not every document seized by the CRA in 2008 and 2009 as part of Projet Legaux was disclosed to them. [ 68 ] Yet the Crown has an obligation to disclose the evidence. It is true that defence counsel must be diligent because the process is subject to human error. In this case, however, the failure to disclose the evidence does not stem from human error.

It flows instead from the Crown’s decision based on an assumption on the relevance of these documents, which assumption is based on a much narrower definition of the notion of relevance. Because the Crown did not inform defence counsel of its decision, they did not and could not know how the Crown had dealt with these documents before this application was presented. The knowledge of the accused or their counsel cannot mitigate or remedy the Crown’s breach.

In other words, the accused’s inaction, despite these indicators, does not mean that they consider the undisclosed evidence irrelevant or waive its disclosure. [ 69 ] That said, the knowledge of the accused and their counsel is relevant to the next step in the analysis on the effects of the Crown’s failure to disclose this evidence on the trial’s fairness or on the integrity of the judicial process. In this regard, the Court immediately notes that defence counsel’s argument that they were completely unaware raises questions.

For example, if the cheques signed by Accurso are important to his defence, as his counsel suggests, why not ask the Crown where these cheques can be found? One thing is certain: Accurso and his counsel knew the nature of the searches executed by the CRA and had to have known that the CRA investigators had seized many cheques. [79] Did the Crown breach its obligation to disclose the information that the CRA no longer

had the seized property? [ 70 ] The first disclosure of the evidence contained the notes of the CRA investigators who assisted the ARQ investigators during the ARQ searches. The Crown later disclosed the ARQ search warrants, a table summarizing the different tasks of the CRA investigators during these searches, [80] a table titled [ translation ] “Analysis of Paper Documentation by Valérie Landreville for the ARQ-Accurso application”, [81] and miscellaneous information about Bruno’s Jarvis application in his case with the ARQ. The Crown disclosed a lot of information on the ARQ searches.

This information was easily accessible and intelligible. The Crown therefore did not breach its obligation to disclose the material required to inform the accused and their counsel that the CRA no longer had the documents it seized during the “Projet Legaux” searches in 2008 and 2009. [ 71 ] Moreover, the evidence establishes that the accused were aware of the ARQ searches and, therefore, that the CRA had been dispossessed, even before the charges in this case were laid.

In June 2012, the accused, save Accurso, [82] were served with the ARQ’s application for further detention of things seized and to change custodian of things seized. [83] That application revealed that on that date, the ARQ was the custodian of the documents initially seized by the CRA, except for some boxes for which the CRA was appointed custodian and for which an application to change custodian was filed. Accurso was also aware of the ARQ searches before the charges were laid.

In fact, on August 10, 2011, the Superior Court dismissed his application to impound the documents seized by the ARQ presented as part of an application for certiorari involving one of the ARQ’s search warrants. [84] Last, Bruno’s recent steps to have the property seized in the ARQ’s penal case returned as well as the remarks made before the Court when discussing the need to file the “original” documents are further manifestations of this knowledge. [ 72 ] Armed with this knowledge, defence counsel should have asked questions if they wanted details on how the Crown planned to introduce into evidence the documents initially seized by the CRA but now held by ARQ, which they simply did not do. [ 73 ] It should be recalled that the documents in this case have not been destroyed, lost, damaged, or altered.

They are documents that were initially in the custody of the CRA and now in the custody of the ARQ. The accused knew about the court orders changing custodian. Without deciding the issues disputing chain of custody, the Court finds that the evidence adduced to date does not reveal any particular situation beyond this change of custodian that required additional information to be disclosed to defence counsel. On the contrary, Lachapelle’s testimony tends to establish, at this time, that the documents are in the boxes in which they were initially placed by the CRA investigators, with copies of the search envelopes.

The tracking system put in place allows Lachapelle to find the original document when she looks for it. C. The second allegation: the manner in which the Crown adduced the evidence misled the witnesses [ 74 ] The accused allege that the manner in which the Crown adduced the evidence misled the witnesses by suggesting that the document they were being shown came from the search envelope they signed, when in reality the search envelope was not kept with the documents.

At first glance, this allegation concerns the chain of custody. [ 75 ] The Crown denies misleading the witnesses and replies that the search envelopes were only one thing among others used to refresh the witnesses’ memories as to the nature of the documents they seized. The Crown adds that the fact that the search envelopes were not kept with the documents seized does not affect the chain of custody, given Lachapelle’s testimony. [ 76 ] When the ARQ executed its searches at the CRA offices, it took possession of the search envelopes and the documents seized.

In November 2011, the ARQ returned the “original” search envelopes to the CRA. When Lachapelle had access to the boxes of documents held by the ARQ, she noticed that the seized documents were kept with a copy of the search envelope. The evidence therefore tends to establish, at this time, that the ARQ made copies of the search envelopes before returning them to the CRA.

Without deciding, as part of this application, the chain of custody issues, the evidence does not support the conclusion that the Crown misled a witness by presenting, for example, a document as being one of the documents the witness seized when it was not. [ 77 ] The fact remains that the Crown introduced into evidence a printed sheet with the words [ translation ] “cost per unit analysis” [85] written on it, without telling the witness that this sheet was attached to other sheets when it was seized.

At the time this evidence was adduced, the Crown did not inform the witness, defence counsel, or the Court that Lachapelle had first detached this sheet from the others. This situation is cause for concern because it casts doubt on the integrity of a filed exhibit. Despite this, and even though the accused specifically allege that the Crown misled the witness who produced this exhibit, the Crown did not explain what happened.

In the absence of any explanation and given the evidence presented during the stay application, the Court can only conclude that this situation is a direct result of the Crown’s failure to make reasonable inquiries into the nature of the documents initially seized by the CRA and now held by ARQ. The Crown simply did not compare the copy of that page, with which it was working, to the document originally seized by the witness. In these circumstances, the Crown’s steps to obtain admissions on the authenticity of the documents, at least with respect to this sheet, are astonishing to say the least. D.

The third allegation: the Crown’s answer contains many irrelevant documents prejudicial to the accused’s interests [ 78 ] The third allegation by the accused arises from the Crown’s conduct when answering the application for a stay of proceedings. The accused claim that certain factual allegations by the Crown in its answer are wrong. Furthermore, factual allegations in the answer and documents filed in support of the answer contain information that is both unhelpful to decide the application and prejudicial to the accused.

In other words, the accused allege that the Crown used its answer to this application to [ translation ] “tarnish” the case by providing the Court with much information that is inadmissible on its face. [ 79 ] The Crown submits that its answer contains no false factual allegations and adds that all the facts and documents referred to are necessary to determine the issues raised by the application for a stay of proceedings. [86] Finally, the Crown states that if the documents have been filed in their [ translation ] “entirety”, it is to avoid a pointless debate on their authenticity or on the choice of excerpts produced, where applicable. [ 80 ] The Crown’s written answer contains over 170 paragraphs and is over 35 pages.

It provides information about the CRA, RCMP, and ARQ investigations as well as the various resulting proceedings. Much of this information is both relevant and useful to the Court’s

analysis, as the reasons for this decision attest. [ 81 ] Some information, however, is both unnecessary and seemingly prejudicial to the accused. For example, the Court does not need to know that Bruno and Accurso pleaded guilty in the penal proceedings. [87] Nor does the Court need to know that Accurso was in a rush to settle his case with the CRA, primarily for media and financial concerns. [88] Moreover, when the Crown refers to the guilty pleas entered on December 7, 2010, by Louisbourg Construction and Simard-Beaudry, it states that counsel for Accurso entered the plea.

At first glance, this wording might suggest that Accurso decided to enter these pleas on behalf of his companies, when that is not the case. [89] Given that these pleas have little relevance to the issues raised by this application and given the nexus between the penal proceedings and this case, the fact that the Crown refers to these pleas is, at the very least, ill-considered. [ 82 ] The documents filed in support of the answer are included on a USB key. [90] That key contains a folder titled [ translation ] “Evidence in support of the written answer”, which contains in particular the following nine subfolders: • The first subfolder, titled [ translation ] “Preliminary inquiry transcripts”, contains transcripts of the four days of the preliminary inquiry during which Cavanagh and Landreville testified.

These transcripts are over 700 pages.

The relevant content is limited to approximately 20 pages. • The second subfolder, titled [ translation ] “Authorities and court decisions”, contains a 447-page document titled [ translation ] “Evidence by court determinations” which includes 22 court judgments rendered in this case, in proceedings instituted following the searches, or in the case between Bruno and the ARQ. • The third subfolder, titled [ translation ] “ Jarvis application”, contains two documents totalling approximately 60 pages: a Jarvis application by Furgiuele and Girardi in this case and another Jarvis application by Accurso in this case. • The fourth subfolder, titled [ translation ] “Applications for certiorari ”, contains four documents totalling over 450 pages.

The first two documents are written argument outlines submitted by Furgiuele, with pleadings, exhibits, and authorities attached. Altogether, they are over 400 pages. The two other documents are applications related to Bruno’s application for certiorari following the CRA searches, and total a little over 50 pages. • The fifth subfolder, titled [ translation ] “ARQ warrants”, contains the three ARQ search warrants and is approximately 30 pages. • The sixth subfolder, titled [ translation ] “Inventories”, contains three documents.

The first is an inventory of property seized by the ARQ during searches at the CRA offices. That inventory is over 1,500 pages. A second document titled [ translation ] “Inventory of things seized CRA 2008 and 2009” is over 1,700 pages. It contains more than the inventories of things seized by the CRA during the 2008 and 2009 searches. It also contains the 26 search warrants obtained by the CRA and the documents in support of these applications for warrants, including the informations and schedules.

The third document is a letter from the ARQ lawyer to Crown counsel stating when and to whom the ARQ inventory was disclosed during the ARQ penal proceedings. • The seventh subfolder, titled [ translation ] “Correspondence and disclosure”, contains exchanges between counsel about disclosure of the evidence in this case.

The first document is 445 pages while the second is 142 pages. • The eighth subfolder, titled [ translation ] “Return of things seized”, contains four documents totalling approximately 30 pages related to Bruno’s recent application in ARQ’s penal proceeding to have the property seized returned to him. • The ninth subfolder, titled [ translation ] “Other”, contains seven documents including: the ARQ’s application for further detention of things seized and to change custodian of things seized, totalling 127 pages; a 7-page affidavit of France Madore; two prosecution reports and cheque analyses totalling 122 pages; a 1-page table summarizing the different tasks of the CRA investigators during the ARQ searches; and a 7-page table titled [ translation ] “Analysis of the paper documentation by Valérie Landreville for the ARQ-Accurso application”.

This subfolder also contains a 763-page document titled [ translation ] “2018 Requests for disclosure” and a 1,271-page document titled [ translation ] “Documents related to the agreed statement of facts”. [ 83 ] The documents in these subfolders total over 7,800 pages. Although there is relevant information among these pages, the Court can but note that there is also a lot of unnecessary material. For example, why file 700 pages of transcripts when the relevant passages are limited to approximately 20 pages? [91] Why not file the relevant excerpts?

Why file the argument outlines and their schedules totalling 400 pages instead of filing Furgiuele’s application for certiorari and, as needed, some additional documents? [92] Why file the CRA’s 26 search warrants with their schedules, including those supporting the investigators’ reasonable and probable grounds, if what is relevant is the warrant, the report to the justice of the peace, and the inventories of seized documents? [93] Why, in the document titled [ translation ] “2018 Requests for disclosure”, file applications presented by third parties involved in proceedings under other components of “Projet Coche” instead of just the applications by the accused? [94] Why include in this same document internal analyses or disclosed evidence? [95] Why include, in document titled [ translation ] “Documents related to the agreed statement of facts”, the hearing transcripts in which Bruno entered a guilty plea to the CRA penal charges [96] or an application for disclosure of the evidence in another case, with the hearing transcripts of that application? [97] [ 84 ] Clearly, the Crown’s decision to file these documents in their entirety interferes with the efficiency of the proceedings and makes everyone’s job more complex, including that of the Court.

But there is more.

An analysis of the documents filed by the Crown reveals that they contain information that is of no use in this debate and appears prejudicial to the accused, resembling evidence of propensity or bad character. [98] Moreover, these documents also include correspondence between counsel in support of the negotiations leading to the settlement of the CRA’s tax penal proceeding against Bruno, despite the confidentiality of these exchanges. [99] [ 85 ] In reply, the Crown explained that it filed the documents in their entirety to avoid a debate on the authenticity of a document or on the nature of the excerpt selected.

Such a debate is certainly always possible, but this possibility does not warrant the Crown’s decision to file all these documents as they are. As an officer of the court, the Crown must ensure that the evidence adduced does not contain evidence that is inadmissible on its face.

[ 86 ] Moreover, the fact that the trial is being held before a judge alone cannot justify the Crown’s conduct. It is true that a judge presiding over a trial alone must often hear the evidence to determine whether it is admissible. Judges are used to making a distinction, i.e., disregarding inadmissible evidence when rendering their decision.

But this does not mean that the Crown can ignore the normal rules of evidence. [ 87 ] In light of the foregoing, the Court finds that when answering the application for a stay of proceedings, the Crown failed to take the necessary steps to prevent irrelevant and apparently prejudicial material from being brought to the Court’s attention or filed in evidence. That said, based on the evidence, the Court cannot conclude, as the accused wish, that the Crown acted in a way that [ translation ] “tarnishes” the case. While Crown counsel’s explanation does not justify his actions, it does negate such an intention. II.

Should a stay of proceedings be granted in this case? [ 88 ] There are two categories of conduct that warrant a stay of proceedings: the first category includes state conduct that compromises the fairness of the accused’s trial (often called the “main category”); the second category includes state conduct that creates no threat to trial fairness but risks undermining the integrity of the judicial process (often called the “residual category”). [100] [ 89 ] The test for determining whether a stay of proceedings is warranted consists of three requirements: (1) there must be prejudice to the accused’s right to a fair trial or the integrity of the judicial process that will be “manifested, perpetuated or aggravated” through the conduct of the trial, or by its outcome, (2) there must be no alternative remedy capable of redressing the prejudice, and (3) where there is still uncertainty over whether a stay is warranted, the court is required to balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits. [101] [ 90 ] These requirements are the same, whether the impugned state conduct compromises trial fairness or risks undermining the integrity of the judicial process.

The way these requirements play out, however, varies according to the category of conduct analyzed. [102] [ 91 ] Therefore, when an accused alleges that the state conduct compromises the fairness of the trial, the Court must first determine whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial. [103] Second, the Court must determine whether any other remedy short of a stay is capable of redressing the accused’s right to a fair trial. [104] The third requirement, the balancing of interests, is rarely useful when the accused alleges that the state conduct compromises the fairness of the accused’s trial.

If the state conduct compromises trial fairness, another remedy short of a stay often redresses the situation, making the balancing of interests of little use.

On the other hand, in rare cases where such other remedy is not available, the balancing of interests adds little to the inquiry because even if it has an interest in seeing justice done, society has no interest in unfair trials. [105] [ 92 ] When an accused instead alleges that the state conduct does not threaten trial fairness but risks undermining the integrity of the judicial process, the analysis of the three requirements becomes more complex. [ 93 ] First, the Court must determine whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the judicial process by leaving, for example, the impression that the justice system condones the conduct. [106] During its analysis of the first requirement, the Court must answer the following question: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. [107] [ 94 ] Second, the Court must determine whether any other remedy short of a stay is capable of adequately dissociating the justice system from the impugned state conduct.

That said, the stated goal during the analysis of the second requirement is not to provide redress to an accused for a wrong that has been done to him or her in the past. [108] [ 95 ] Third, the balancing of interests takes on added importance when an accused alleges that the state conduct risks undermining the integrity of the judicial process. In these circumstances, the Court must decide whether a stay or having a trial, despite the state conduct, better protects the integrity of the justice system. Clearly, the more egregious the conduct, the greater the need for the court to dissociate itself from it.

When the conduct shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. [109] [ 96 ] Certain state conduct compromises trial fairness or the integrity of the judicial process, depending on the circumstances of the case.

For example, the Crown’s failure to disclose information might prejudice the accused’s right to make full answer and defence and thus, compromise trial fairness and/or damage the fundamental principles underlying the community’s sense of decency and fair play, and therefore undermine the integrity of the judicial process. [ 97 ] The Crown’s failure to disclose information does not, in and of itself, constitute a breach of the accused’s right to make full answer and defence and therefore does not necessarily always affect trial fairness.

That is why an accused who argues that the Crown’s failure to disclose information compromises the fairness of his or her trial must first establish that the failure impaired his or her ability to make full answer and defence. [110] This demonstration requires that the Court inquire into the nature of the undisclosed information to assess its “materiality” or importance. [111] In other words, the Crown’s failure to disclose information that is of very little use to the defence does not necessarily prejudice the accused’s right to make full answer and defence and therefore the fairness of the trial. [ 98 ] The demonstration of the “materiality” or importance of the undisclosed information is also relevant to the analysis of the Crown’s impugned conduct when the integrity of the judicial process is concerned.

The Crown’s failure to disclose some information of little importance certainly has less impact on the integrity of the judicial process than the failure to disclose information of greater importance. [ 99 ] The “materiality” or importance of the undisclosed information also has an impact on whether any other remedy short of a stay can redress the prejudice to the fairness of the trial or the integrity of the judicial process. It should be recalled in this regard that when the Crown’s failure to disclose information is raised at trial, the just and appropriate remedy is often an order to disclose the information

and an adjournment so that the defence can learn the nature of the information, rather than a stay of proceedings. [112] [ 100 ] In this case, the Court finds in particular that the Crown failed to make reasonable inquiries into the nature of the documents seized by the CRA during the 2008 and 2009 searches executed as part of “Projet Legaux” before deciding that these documents were irrelevant and, therefore, not subject to its disclosure obligation. That said, the Court knows very little about the nature of the undisclosed documents and, therefore, the information they contain.

The Court therefore does not have sufficient information on these documents to decide whether the Crown’s conduct prejudices trial fairness or the integrity of the judicial process or to decide whether any other remedy short of a stay is capable of redressing the situation.

Given the importance of the issues raised, these debates must be conducted based on facts and not on hypotheses advanced by the parties. [ 101 ] At this stage of the proceedings, the Court is compelled to suspend the trial and order the Crown to disclose to defence counsel every document seized by the CRA during the 2008 and 2009 searches executed as part of “Projet Legaux”, except where it is clearly irrelevant, privileged, or its disclosure is otherwise governed by law. [113] In the event the Crown considers that a document should not be disclosed to defence counsel, it must provide a description of the document and state the reason for the refusal.

The Court will rule on any dispute regarding the disclosure of a document. [ 102 ] The Court will only be able to analyze the effects of the Crown’s conduct and thus adequately assess the available remedies once the parties can provide the Court with information on the nature of these documents and the information they contain. The Court is aware that the Crown’s failure to disclose the evidence is not the only failure at issue. That said, the Crown’s conduct should be assessed as a whole to properly identify its effects, if any.

That is why the Court will also suspend the stay application. [ 103 ] Furthermore, the Court expects the parties to agree amongst themselves on the terms of disclosure so that it proceeds smoothly and effectively. The Court reminds the parties that they all declared they were ready to proceed with a 90-day trial. Based on these representations, made by seasoned lawyers, the Court of Quebec assigned significant court resources to this case, in particular by releasing a judge and the necessary staff.

A room was also specially arranged for this case, in light of the pandemic. [ 104 ] The Court notes that for several weeks now defence counsel has been in possession of a detailed inventory of the documents seized by the CRA during the 2008 and 2009 searches executed as part of “Projet Legaux”. [114] Armed with this inventory, there is no doubt that defence counsel can precisely identify which documents they are interested in so that they can be disclosed first. Similarly, it is clear that not every document is equally important.

Therefore, if the parties work together, they can determine the terms of access to limit delays, such as for example, providing access to certain documents rather than digitizing them, if that is faster.

CONCLUSIONS For all these reasons, the Court: SUSPENDS the trial of the accused; ORDERS the Crown to disclose every document seized by the CRA during the 2008 and 2009 searches executed as part of “Projet Legaux”, except where it is clearly irrelevant, privileged, or its disclosure is otherwise governed by law; RESERVES the parties’ right to apply for any other necessary order related to the above disclosure order; SUSPENDS the Application for a stay of proceedings presented by the accused. _________________________ MÉLANIE HÉBERT, J.C.Q.

Mtre Alexis Gauthier/Mtre François Blanchette/Mtre Jeremy Van Doorn Mtre Marie-Claire Émond Public Prosecution Service of Canada Mtre Marc Labelle/Mtre Kim Hogan Labelle, Côté, Tabah et Associés For the accused Antonio Accurso Mtre Julie Lepage For the accused Francesco Bruno Mtre Michele Meleras/Mtre Isabel J. Schurman Schurman Grenier Strapatsas For the accused Francesco Fiorino Mtre Gérald Soulière Linteau Soulière & Associés, avocats

For the accused Adriano Furgiuele Mtre Isabelle Lamarche For the accused Antonio Girardi Hearing dates: January 29; February 02, 16, 23, 24, 25, 26; March 08, 09, 10, 15, 16, 18, 19, 2021.