Her Majesty the Queen - v. -, 2019 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 14 Date: January 31, 2019 Information: 90135363 Location: Deschambault Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chadwick Andrew Custer Appearing: D. Forbes For the Crown J. Quigley For the Accused DECISION M. MCAULEY , J [ 1 ] Chadwick Andrew Custer was charged with seven offences alleged to have been committed on or about April 19, 2018 in Deschambault Lake. The information was sworn on April 20, 2018 by Deschambault Lake RCMP. The charges are as follows: (

i) Not being in a dwelling house did cause a disturbance in or near a public place, to wit: the middle of Kistapiskaw Street, by screaming, shouting at vehicles, swearing and using obscene language contrary to Section 175(1) (a)(

i) of the Criminal Code of Canada ; (ii) Did by speaking and handgesturing knowingly utter a threat to Cst. Derek Haines to cause death to Cst. Derek Haines, contrary to

Section 264.1(1) (

a) of the Criminal Code of Canada ; (iii) Did by speaking and handgesturing knowingly utter a threat to Cst. Eric Toulouse to cause death to Cst. Eric Toulouse, contrary to

Section 264.1(1) (

a) of the Criminal Code of Canada ;

(iv) Did resist Cst. Eric Toulouse, a peace officer engaged in the lawful execution of his duty by running away and pulling his arms away while Cst. Eric Toulouse tried to handcuff him, contrary to

Section 129 (

a) of the Criminal Code of Canada ; (

v) Did resist Cst. Derek Haines, a peace officer engaged in the lawful execution of his duty by running away and pulling his arms away while Cst. Derek Haines tried to handcuff him, contrary to

Section 129 (

a) of the Criminal Code of Canada ; (iv) Did in committing an assault on Cst. Derek Haines, threaten to use an imitation of a weapon, to wit: a gun, contrary to

Section 267 (

a) of the Criminal Code of Canada ; and (iiv) Did in committing an assault on Cst. Eric Toulouse, threaten to use an imitation of a weapon, to wit: a gun, contrary to

Section 267 (

a) of the Criminal Code of Canada . [ 2 ] Mr. Custer’s first court appearance was on May 1, 2018 where the initial disclosure package was provided to defence. The Crown proceeded by

summary conviction on all seven offences. On his first court appearance, he entered not guilty pleas and a trial date was scheduled for August 22, 2018 in Deschambault Lake. [ 3 ] The defence made further disclosure requests on August 1, 8, 15 and 17, 2018 with Crown providing disclosure as requested. Defence also made further attempts to obtain disclosure in addition to the above dates and Crown would not provide the requested disclosure.

In particular, defence requested the Conducted Energy Weapon policy which I understand is now in their possession. [ 4 ] The trial proceeded on August 22, 2018 where Crown and defence agreed to proceed with the application for Charter relief under Sections 7, 8, 9, 10(a), 10(

b) and 12 as a blended trial and voir dire . The Crown called its entire case as part of the voir dire and then closed their case. Defence advised they would not be calling any evidence on the voir dire . A court date of August 29, 2018 was scheduled in La Ronge Provincial Court for argument on the Charter application. [ 5 ] Defence counsel then advised that they wished to call evidence on the voir dire , prior to any argument, and requested an adjournment of the proceedings for that purpose which was consented to by Crown.

The Crown did not make application to apply the evidence from the voir dire to the trial proper because of defence position to call evidence on the voir dire .

The matter was then adjourned to December 19, 2018 in Deschambault Lake for that purpose. [ 6 ] On November 28 and December 11, 2018, defence requested further disclosure but the Crown refused to provide it and the non-disclosure has now become the issue in this application. [ 7 ] The continuation of the trial was scheduled for December 19, 2018 in Deschambault Lake but was brought forward by defence to December 13, 2018 to make oral arguments for the additional disclosure.

I was not able to hear argument on this day due to being scheduled in another courtroom and, as I was not available to hear the arguments prior to the December 19, 2018 trial continuation date, the proceedings were adjourned to January 20, 2019 for argument. I requested written arguments from both counsel. [ 8 ] Crown received the defence brief on this disclosure application on January 7, 2019 and did not have time to respond thus a further adjournment was requested by Crown in order to provide their response. [ 9 ] The hearing for disclosure was heard on January 31, 2019 at 1:00 p.m. in La Ronge.

DEFENCE POSITION [ 10 ] Defence made a request for additional disclosure after the Crown had closed their case. The disclosure being requested is as follows:

a) Cell block footage and any other CCTV footage of the accused’s time in custody in relation to these matters;

b) Any RCMP radio communications relating to the incident giving rise to the accused’s charges;

c) Any and all notes made during the debrief between the RCMP members involved in the accused’s arrest and theDeschambault Lake detachment NCO which is referred to in the members’ reports, including the NCO’s notes or a detailed will-saystatement (“the Debrief Notes”);

d) Any and all copies of the members’ reports in relation to the incident, including information relating to the edits made,the times when the reports were initiated and concluded, and which individuals accessed them during the relevant time period (the “TaskActivity Log and Re-working Commentary”); and

e) The discharge data log from the Conducted Energy Weapon discharged in relation to this incident. [11] Defence submits that each of these items is in the possession and control of the investigating police service, the DeschambaultLake RCMP and relate specifically to the investigation of the accused and falls under the category of the “fruits of the investigation” ascontemplated by R v Stinchcombe, (SCC), [1991] 3 SCR 326, [Stinchombe] and R v McNeill, 2009 SCC 3, [2009] 1SCR 66, [McNeill]. [12] Defence submits the following:

a) That the CCTV footage and radio communications provide direct evidence of the accused’s interaction with theinvestigating police at the relevant time;

b) That the Conducted Energy Weapon discharge data log is expected to provide information as to the time, duration andmode of discharge and is relevant both to the question of the police use of force against the accused in the course of the investigation,and also to the credibility and reliability of the investigating officers;

c) That the conversation between the NCO and investigating officers in the wake of the accused’s arrest is expected toyield information that is relevant to the questions of whether the use of force was justified, and the credibility and reliability of theofficers. The information is required in order for the accused to make full answer and defence and to pursue his claim of excessiveforce; and

d) That the task Activity Log and Re-working Commentary are plainly relevant, as they constitute the evolution of thewritten record of the investigation and also relevant to the credibility and reliability of the investigating officers and their superiors.

Inparticular, focus on when the reports were initiated and concluded as well as any changes that were made in the interim to provide a basisfor cross-examination of the investigating officers. [13] Defence submits that pursuant to Stinchcombe, materials to be disclosed to defence “must include not only that which theCrown intends to introduce into evidence but also that which it does not and that no distinction should be made between inculpatory andexculpatory evidence” (Stinchcombe, at 343). [14] Defence submits that if the information is of some utility to the accused in making full answer and defence, “then it is relevantand the determination as to whether it is sufficiently useful to put into evidence should be made by the defence and not the prosecutor”(Stinchcombe, at 345-6). [15] Defence submits that the Crown cannot deny its obligation to disclose merely because it does not intend to call a witness.

Rather, the Crown is under a broad obligation to disclose any and all information that may be helpful to the accused in making fullanswer and defence (R v Tran, 2005 ABPC 363, 394 AR 252 [Tran]). [16] Defence submits that the Crown bears the burden of proof that it is not obligated to disclose the materials because it is clearlyirrelevant, privileged, or otherwise governed by law. [17] Defence submits that the investigating officer’s notes refer to a debriefing with the detachment NCO on the topic of whetherthe police use of force against the accused was justified.

Defence submits that the issue relates directly to the question of whether the

use of force was justified as well as the credibility and reliability of the officers. Although the Crown did not call the NCO as a witness, any notes prepared by the NCO in relation to the debrief ought to be disclosed as they are clearly relevant per Stinchcombe . If the NCO does not have any notes, the defence submits that the Crown is obligated to provide a detailed will-say statement ( Tran at paras 48-9 ). [ 18 ] Defence submits that the issue of the requested disclosure was on going and did not start at the end of the closing of the Crown’s case.

Defence further submits that the information is clearly relevant and not privileged. CROWN POSITION [ 19 ] Crown submits that pursuant to Stinchcombe there exists a common-law obligation on the Crown to disclose all relevant disclosure subject to reviewable discretion but maintains that the accused’s right to disclosure is not absolute. [ 20 ] Pursuant to Stinchcombe the Crown concedes that the disclosure being sought is first party disclosure therefore the following criteria are engaged:

a) The right to disclosure is engaged upon the request of the accused and Crown concedes this onus has been met by defence;

b) The information sought must not be privileged, statutorily barred from disclosure, or subject to a unique disclosure regime and Crown concedes the disclosure is not privileged or statutorily barred;

c) The information sought must not be “clearly irrelevant” to the matters before the court” and Crown submits that disclosure sought is clearly irrelevant ;

d) The accused must exercise due diligence and a request or application must be made in a timely fashion and Crown submits that the request was made only on November 28, 2018 and December 11, 2018 after the Crown closed its case. Crown advised they refused to disclose the requested information. Crown contends the accused has not exercised due diligence and disclosure request was not made in a timely fashion ; and

e) The order for disclosure must not compromise the expediency and fairness of the proceedings, or otherwise bring the administration of justice into disrepute and Crown contends that the requested disclosure at this late hour would prejudice the expediency and fairness of the proceedings, and will bring the administration of justice into disrepute . [Emphasis mine] [ 21 ] Crown concedes that the disclosure being sought is not privileged information nor does it argue it is police work-product that could potentially render the information non-disclosable. [ 22 ] The Crown contends that if the Court orders disclosure to be provided to defence, it would change the manner and order in which the Crown is entitled to present its case as well as what evidence it decides to put before the court.

A change in the scope or nature of such an argument may fundamentally change the manner in which the trial would have proceeded, which witnesses the Crown would have called, and which questions would have been asked.

Crown’s ability to properly manage its case would be irreparably damaged by such a defence application made after the close of their case creating an appearance of unfairness that cannot be remedied. [ 23 ] Crown contends that the defence was aware of these issues prior to the trial and had the opportunity to cross-examine both police officers but choose not to do so. [ 24 ] The Crown further submits that in the circumstances of this case, if an order for disclosure is made, it would irreparably alter the nature and fairness of the proceedings as a blended trial and voir dire , and in such a case, a mistrial would result.

Although this is not a factor in the test for whether an order for disclosure should be made, the Crown submits that if the Court finds that disclosure should be ordered, the Court should also declare a mistrial. This would put both the Crown and the accused on fair ground to recommence the

proceedings anew. MISTRIAL [25] A mistrial is a remedy where it "is necessary to prevent a miscarriage of justice" (R v Burke, 2002 SCC 55 at para 75, 164CCC (3d) 385 [Burke]). A miscarriage can arise where "a trial is unfair, or when the trial has the appearance of unfairness, viewed by awell-informed, reasonable person considering the whole of the circumstances" (R v Khan, 2001 SCC 86 at para 27, 160 CCC (3d) 1[Khan]). [26] A finding of a mistrial is a discretionary power of the trial judge (R v GC, 2018 ONCA 392 at per curiam para 3 [GC]) (Khanat para 79).

The Judge must "assess whether there is a real danger that trial fairness has been compromised" (GC at para 3, Khan at para79).

A mistrial will also arise where there is an apprehension of bias (Burke at para 74). [27] A declaration of a mistrial "should only be granted as a last resort, in the clearest of cases and where no remedy short of thatrelief will adequately redress the actual harm occasioned" (R v Toutissani, 2007 ONCA 773, [2007] OJ No 4364 (QL) per MacPhersonJA). [28] The decision to grant an application for a mistrial is discretionary (R v Grant (I.M.), 2009 MBCA 9 at para 69, 240 CCC (3d)462 [Grant]) (GC at para 4).

An appellate court should only intervene where the decision "is so clearly wrong as to amount to aninjustice" (Grant at para 69). [29] For an application for a mistrial, the test is "whether the Appellant’s ability to make full answer and defence has beenimpaired" (R v T(LA) (1993), (ON CA), 84 CCC (3d) 90 at para 8, (Ont CA). [30] With respect to timing of the Application, courts have jurisdiction to grant a mistrial even after a conviction but beforesentencing (R v Andersen, 2018 BCSC 587). [31] If a mistrial is granted, a retrial should be scheduled without further delay and only a short period of delay will be expected.

Anything longer may open the possibility of a

section 11(

b) Charter delay (R v Brace, 2010 ONCA 689 at para 15, 261 CCC (3d) 455). [32] Where a mistrial is declared, the rulings on pre-trial motions will generally still apply if the prosecution is re-initiated (R vLee, (ON CA), 170 CCC (3d) 225 (Ont CA).

Section 653.1 states: 653.1 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosureor admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the partiesin any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented. [33]

Section 653.1 applies to rulings that relate to (1) disclosure; (2) admissibility of evidence; or (3) the Charter (R v Victoria, 2018 ONCA 69 at para 51, 359 CCC (3d) 179). CONCLUSION [34] I conclude the disclosure is directly relevant and required in order for the accused to exercise his right to make full answer anddefence to the charges that are before the court. The disclosure requested goes to the very nature of the charges and to the issue as towhether excessive force was applied by the police officers. I also conclude that the requested disclosure is the direct fruits of theinvestigation.

The accused is entitled to a fair trial and I find that a fair trial requires the requested disclosure.

[ 35 ] The defence is not on a fishing expedition in order to create unnecessary delay, complexity and confusion. Impeaching the Crown’s witnesses may be a necessary part of the defence case, which areas of concern may have arisen due to additional information not previously disclosed.

I believe that the defence is assisting the accused in the exercise of his right to make full answer and defence in his pursuit of a fair trial. [ 36 ] The defence requires this disclosure for their defence and the consequences to the accused are significant if convicted after trial. [ 37 ] While I was initially concerned about the late disclosure request of defence seemingly at the end of the Crown’s case, I understand that this disclosure issue had been an on-going one commencing shortly after the initial disclosure package was received. [ 38 ] I am hereby making the order that the requested disclosure be provided to defence forthwith. [ 39 ] I will now address the issue of a mistrial as requested by the Crown.

Mistrials should only be granted as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned. I must assess the appearance of unfairness viewed by a well-informed, reasonable person considering the whole of the circumstances. I must also assess whether there is a real danger that trial fairness has been compromised and where there exists an apprehension of bias. [ 40 ] As the Crown has closed its case, I believe that the Crown is now at a disadvantage due to this new disclosure and how the defence may utilize it.

I conclude that the court order for disclosure to defence would render the trial unfair for the Crown as it may fundamentally change the manner in which the trial would have proceeded, which witnesses would have been called, and which questions would have been asked.

This new disclosure may cause issues for the Crown in the proper management of its case and could potentially cause irreparable damage as they have already closed their case. [ 41 ] To simply allow the Crown to reopen its case, re-examine its witnesses, potentially call additional witnesses and allow the defence to have a second chance to cross-examine these same witnesses may not remedy any potential damage that would be caused because of this new disclosure.

To recommence the voir dire with the new disclosure simply cannot remedy any potential damage to the Crown’s case. [ 42 ] While the voir dire and trial proper are two separate trials, they ran concurrently with one another with the Crown having closed its case. One available option to consider is to disabuse myself of the prior evidence presented before me by the Crown and commence the voir dire from its beginning as a means of not having to declare a mistrial.

However, even in that situation, I believe there still exists a real danger that trial fairness has been compromised and that there is an apprehension of bias when a reasonable person considers the whole of the circumstances. As well, it is no more expedient than simply starting over. [ 43 ] Mistrials should only be granted as a last resort and in the clearest of cases where no remedy short of that relief will adequately redress the actual harm occasioned.

In these circumstances, I find that the only appropriate remedy is to declare a mistrial as the ordering of the disclosure could irreparably alter the nature and fairness of the proceedings as a blended trial and voir dire potentially harming the Crown’s case as explained above. [ 44 ] The Crown may have presented their case in a different fashion if the disclosure being sought was disclosed at the first instance. A mistrial will put both the Crown and the accused on fair ground to recommence the proceedings anew.

I hereby order the scheduling of a new trial at the earliest in order to avoid any potential Jordan delay issues. ___________________________ M. MCAULEY, J