2014 MBPC 43, 2014 MBPC 43

Cite 2014 MBPC 43 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Monica Durand and Charles Murray, for the Crown ) - and – ) ) Ramon Visscher ) Greg Brodsky, for the Accused ) ) Decision on Motion Judgment delivered: September 3, 2014 ) Mary Kate Harvie, P.J. Introduction [ 1 ] The accused brings a motion pursuant to Canadian Charter of Rights and Freedoms (“The Charter”) section 24(1) for a judicial stay of proceedings alleging that certain non-disclosure on the part of the Crown attorney has adversely affected his ability to make full answer and defence.

Crown counsel opposes the motion. [ 2 ] Given the somewhat unusual manner in which this application has been brought and the way in which this case has proceeded, a review of the

schedule of proceedings provides some important perspective. [ 3 ] As a result of an incident which occurred on January 26, 2013, the accused was charged with the Criminal Code offences of driving over. 08 and driving while impaired. The accused was released by way of an appearance notice. [ 4 ] The matter appeared in due course in Morden Manitoba, where disclosure was sought and provided. As is the usual course, a case management conference was ordered prior to a trial date being provided. [ 5 ] On June 19, 2013, counsel attended for a case management conference before Judge Combs.

The Judge’s case management report notes that defence counsel had requested “the maintenance records for the breathalyser machine” and that Crown counsel had agreed to provide those records. The memo also indicates that at trial defence counsel may be pursuing as an issue the accuracy of the breathalyser machine. The report concludes with the following statement: “Once disclosure is received a half day trial can be set.

If the disclosure results in further issues a further pre-trial may be necessary to determine whether additional court time is needed.” No further pre-trial/case management meetings were requested by either counsel. [ 6 ] Following the case management meeting, defence counsel sent an email on June 27, 2013 outlining the disclosure sought. He provided a number of authorities supporting his request for the following items:

a) back up material relating to the maintenance of the machine;

b) report forms and checklists used during the annual inspection;

c) disclosure relating to the technician’s training;

d) subject test records for the previous twelve tests;

e) calibration records for the previous three months;

f) maintenance logs and records for the period of one year; and

g) usage logs regarding the alcohol solution since the last calibration. [ 7 ] No objection was raised by Crown counsel as to the items sought, a list which is more extensive than the “maintenance records of the breathalyser” referenced in the case management memo. [ 8 ] On July 29, 2013, Crown counsel forwarded a package of documentary materials received from the RCMP. Defence counsel was also advised that a sample of the external standard solution from the relevant lots could be made available to the defence.

The package of materials does not appear to contain all of the information sought by defence counsel in his email of June 27, 2013, and no explanation was provided by Crown counsel. The documents forwarded included the following:

a) the supervisor test record for the instrument;

b) a copy of the simulator tag (Alcohol Standard (Wet Bath) Label) from the supervisor test;

c) the Alcohol Standard (Wet Bath) Change Form;

d) the annual maintenance inspection form for the relevant year;

e) the Certificate of a Qualified Technician and Notice of Intention to Produce Certificate; and

f) officer’s notes. [ 9 ] On August 26, 2013, defence counsel’s office contacted Crown counsel by email requesting trial dates. After some exchange, the date of October 15, 2013 was agreed upon. No comment was made about the adequacy of the disclosure. [ 10 ] On August 29, 2013 Crown counsel communicated by email with the defence, stating, among other things that “the Crown has provided full disclosure to you.

Should you believe that further disclosure is required, please contact this office, in writing, and specifically identify the materials that you feel should be disclosed by the Crown.” The email goes on to state “we ask that you review your file well in advance of the above noted trial date to avoid any unnecessary delay or adjournments”. The email also points out that any Charter applications contemplated require the service of the appropriate motion documents.

Defence counsel did not respond, did not indicate that any disclosure was outstanding and did not file any Charter motion documents. [ 11 ] All parties attended on the day of trial. At the outset of the trial, defence counsel indicated that he had not received all the disclosure he had requested. Crown counsel indicated that while she was not refusing to provide the disclosure, and that she was uncertain as to whether it was available.

Despite that uncertainty, she did not request that the matter be stood down in order to determine as to whether the information being sought was readily available or indeed available at all. [ 12 ] For his part, defence counsel acknowledged that he had received some disclosure from the Crown which, as he stated “purports to be a response to my email and my request before Judge Combs” but did not satisfy that request.

When asked by the Court about the disclosure he had received, defence counsel stated “it may be all that they have but it does not give me what I, I requested” and that it was not “an answer to my request put in, made orally and then put in writing with the authorities I rely on...with no nothing, no explanation as to why I’m only sending you part of what you asked for”. Defence counsel took the position that the situation was sufficiently “egregious” for him to “just to proceed with the trial”.

As the full record of the written exchanges between the parties was not provided at that time, neither counsel were asked to comment on the emails and correspondence which is now before the Court. [ 13 ] Defence counsel specifically declined to request an adjournment, despite the fact that Crown counsel indicated that she would not be opposed, and that she “would seek the extra disclosure”. As Crown counsel also declined to request an adjournment, the matter then proceeded to trial.

At the conclusion of the evidence the matter was adjourned, at the request of counsel, for written arguments to be filed. [ 14 ] On November 15, 2013, the Court received the written argument of the Crown, wherein she largely addressed the evidence

adduced at trial. The disclosure issue was the subject of comment, but at that point, as no Charter motion had been filed, the focus or herarguments was the issue of proof beyond a reasonable doubt. [15] On December 3, 2013, defence counsel provided his written argument, which included a

section addressing what counselasserted was a breach of the accused rights under

section 7 of the Charter. Defence counsel took the position that the Crown bears theonus to make full answer and defence. Relying on R. v.

Stinchcombe, [1991] 3 S.C.R. 321, defence counsel submitted that the “theobligation to disclose will be triggered by a request by or on behalf of the accused.” That obligation not having been met and theevidence already heard, defence sought a judicial stay of proceedings under Charter section 24 (1). [16] Given the nature of the relief sought, Crown counsel took the position that the defence was obliged to comply with the noticeand service requirements set out in the Constitutional Questions Act.

Once these requirements were met, further briefs were filedspecifically addressing the Charter issues raised by defence counsel. As of the beginning of May, 2014, after all the briefs wereprovided, the Court was advised that counsel did not wish to make further oral arguments on these issues. All parties were canvassed bythe trial coordinators office as to a date when they could attend for the Court’s decision in this matter. The date of September 3, 2014was ultimately agreed upon by all parties.

Addressing the issues- Full disclosure [17] This matter began with concerns being expressed by defence counsel over the Crown’s purported failure to provide fulldisclosure. I hesitate to go so far as to describe it as a “disclosure motion”, as the Court was not actually asked to order that the Crowndisclose the items in question. Normally, in such an application, defense asserts why the information is relevant, and Crown counselindicates their position on the production of the information sought. In this case, that did not occur.

Instead, on the day of the trial,defence counsel pointed out to the Court that the information he had been provided did not meet the written request he had forwarded tothe Crown after the case management meeting. He did not seek to have the Court order the disclosure, and did not ask that the matter beadjourned to allow him to review any new disclosure that may have been provided. [18] A few important points merit comment at this juncture. The fact that defence counsel’s disclosure request is more extensivethan that which is referenced in Judge Comb’s case management memo is of little importance.

Read as a whole, it is clear from thememo that the functioning of the breathalyser was an issue that defence counsel wanted to test and possibly challenge at trial. I note alsothat defence counsel provided authorities for his position, that the items he was seeking ought to be disclosed. [19] I also note that Crown counsel did not express any opposition to providing the information sought.

This gives rise to twoconcerns: First that the initial disclosure package did not meet the request of counsel and no explanation was provided respecting themissing information, and secondly, when the disclosure issue arose on the day of trial, she did not ask to stand the matter down todetermine if the information sought was available, despite the fact that she was not opposing defence counsel’s disclosure request.

Thisleaves the Court in the awkward position of not knowing to this day whether the information sought is even available and could beprovided by the Crown. [20] I agree with defence counsel that the onus to make full disclosure rests with the Crown. It is important that when a disclosureorder is made by a Judge during the case management process, that the order be complied with by the Crown’s office. Defence counselwent so far as to provide authorities for his position that the information he sought was relevant.

While I recognize that the Crown’soffice deals with a great volume of requests, many of which are dealt with by support staff, it is ultimately counsel who are answerable tothe Court and therefore it is ultimately counsel who are responsible for ensuring that the obligation to provide disclosure it met. [21] I do not agree, however, that the conduct of the Crown in this case was, as described by defence counsel, “egregious”.

Inreaching that conclusion, I take into account that there was some significant degree of disclosure provided and that Crown counselindicated in writing her belief that full disclosure had been provided. I also take into account the totality of the exchange between theparties, including the actions of defence counsel in his interactions with the Crown. The Supreme Court of Canada has commented morethan once on the duty of defence counsel to exercise due diligence in seeking disclosure and to raise issues of Crown’s lack ofcompliance “at the earliest opportunity”. In R. v.

Dixon (SCC), [1998] 1 S.C.R.244, Justice Cory comments as follows(at para 37): In considering the overall fairness of the trial process, defence counsel’s diligence in pursuing disclosure from the Crown must be takeninto account. A lack of due diligence is a significant factor in determining whether the Crown’s non-disclosure affected the fairness ofthe trial process. In Stinchcombe, supra, at p. 341, defence counsel’s duty to be duly diligent was described in this way:

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware.

Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. [ 22 ] In this case, while defence counsel was diligent in making his initial request, including providing authorities for his position, he did not point out any shortcomings in the disclosure provided, despite having communicated with the Crown’s office about the trial date and despite having received correspondence from the Crown indicating their belief that disclosure was complete.

At no time did counsel write to the Crown requesting further disclosure, nor did he return to the case management judge or file a motion to have the matter addressed. [ 23 ] While the obligation to provide disclosure rests with the Crown, defence counsel cannot remain passive in the face of any deficiencies. That appears to have been the case in this instance.

Waiting until the day of trial to bring his concerns to the attention of the Crown does not represent the necessary degree of diligence on the part of defence counsel. [ 24 ] I am mindful of the fact that one remedy for inadequate disclosure is an adjournment of the proceedings. On the day of trial both counsel expressly declined to request an adjournment. For his part, defence counsel expressed concern about the expenses that would be incurred if an adjournment was requested.

While this is always a realistic issue for the accused, I do note that there were no defence witnesses in attendance on the day of trial. [ 25 ] I also note that in his written argument defence counsel submits that an adjournment may have had the effect of infringing his client’s constitutional right to a trial within a reasonable time. A Charter

section 11(

b) argument involves a significantly different analysis than that which is undertaken for a judicial stay of proceedings. The delay incurred certainly may have been cause for concern. In his written argument Crown counsel acknowledges that any delay would have been attributable to the Crown. Having said that, a delay motion requires a careful assessment of the proceedings as a whole and as such, addressing the argument in the context of this motion represents an exercise of the hypothetical, particularly given that there is absolutely no information as to when the matter may have been re-set.

Conclusion [ 26 ] In R. v. O’Connor [1995] 4 SCR 41 , the SCC acknowledged that there are circumstances in which the failure of the Crown to disclosure relevant information must result in a stay of proceedings. Crown counsel must be mindful of their duty in ensuring full disclosure is provided. This is particularly the case when the disclosure has been the subject of discussion at a case management meeting. [ 27 ] However the Court also noted that this remedy is to be granted “only in the clearest of cases”.

The lack of due diligence on the part of defence counsel in following up on the requested disclosure must be assessed when the Court considers whether the lack of disclosure “ affected the fairness of the trial process” ( see Dixon - supra) . In this case defence counsel expressed concerns about his inability to retain an expert to address the accurate functioning of the breathalyser. Despite these concerns, he chose to proceed with the trial, even in the face of Crown counsel indicating that she would not be opposed to an adjournment request.

Given the approach adopted by defence counsel, I am not satisfied that the “fairness of the trial process” has been affected to the extent that the remedy of the judicial stay of proceedings is warranted. [ 28 ] Having considered all of the forgoing, I am not satisfied that this case represents one of the “clearest of cases” where the remedy of a judicial stay under Charter section 24 (1) ought to be granted. [ 29 ] The application for a judicial stay is dismissed. “ORIGINAL SIGNED BY:” Mary Kate Harvie, P.J.