R. v. E.W., 2020 NSSC 298

SUPREME COURT OF Nova Scotia Citation: R. v. E.W. , 2020 NSSC 298 Date: 20201029 CRBW No. 490948 Registry: Bridgewater Between: Her Majesty the Queen v. E.W. Restrictions on Publication: S.486.4 - Ban on publication of any information that could disclose the identity of the victim and/or complainant. DECISION ON DISCLOSURE AND MISTRIAL Judge: The Honourable Justice Joshua Arnold Heard: October 1, 2, 5, 6, and 14, 2020, in Bridgewater, Nova Scotia Counsel: Roland Levesque and Constance MacIsaac, for the Crown Robert D.

Chipman, QC, for the Defence Overview [ 1 ] E.W. is charged with incest and related sexual offences involving his daughter, S.W. His trial started on October 1, 2020. The Crown called six witnesses, including …………., a social worker involved in the child protection aspect of the overall incest investigation. The Crown closed its case on October 5, 2020. E.W. elected to call evidence, including Z.W. and D.W. (S.W.’s brothers and E.W.’s sons).

On October 6, 2020, during cross-examination of the fourth defence witness, E.S. (S.W.’s mother and E.W.’s wife), Crown Attorney Constance MacIsaac asked a line of questions about comments allegedly made by E.S. to ………….. , in an effort to have E.S. change her testimony or impeach her. [ 2 ] Shortly thereafter, Robert Chipman, Q.C., counsel for E.W., advised the court that he did not have disclosure of …………. ’s notes regarding her interview with E.S. (or those with Z.W. and D.W.). Later that day the Crown provided Mr.

Chipman with the interview notes created by ………… . in relation to E.S., Z.W., and D.W. but refused to disclose additional notes regarding her interviews with N.F. (S.W.’s maternal grandfather) and E.S. (S.W.’s maternal grandmother), as well as her contacts with the R.C.M.P and the Crown. The Crown refused E.W.’s request for the remainder of ……….. ’s notes, claiming they are third party records and therefore subject to a s. 278.3 Criminal Code application. [ 3 ] E.W. has now requested a determination as to whether ………. ’s notes are first party or third party disclosure.

If they are third party disclosure, he intends to make a mid-trial application in accordance with s. 278.3 . [ 4 ] E.W. also requests either a stay of proceedings or a mistrial in light of the late disclosure. [ 5 ] The Crown admits that they have had possession of …………. ’s notes since 2018, but did not disclose them to E.W. prior to October 6, 2020.

They say that an adjournment is the appropriate remedy because the defence was not duly diligent in pursuing disclosure of the notes, and because the issues on which E.S. was cross-examined in relation to the notes were not material to E.W.’s defence. [ 6 ] E.W.’s application was not specifically framed as a Charter application alleging violations of s. 7 and s. 11(

d) of the Canadian Charter of Rights and Freedoms , and requesting a remedy in accordance with s. 24(2) . However, both Crown and defence made arguments and cited authorities that relate directly to those issues.

Facts [ 7 ] E.W. was charged contrary to ss. 151 , 155(2) and 271 of the Criminal Code on May 24, 2018. The offences are alleged to have occurred between January 1, 2009, and December 31, 2014. The complainant is his daughter, S.W. [ 8 ] Attached to the Crown’s materials on this application is an e-mail from Crown Attorney Roland Levesque (co-counsel on this file with Ms. MacIsaac) to Mr. Chipman dated December 17, 2018, stating: I am presently disclosing to you copies of statements from ……………… , Child and Family Services, and ……………… . Community Health Worker, both of which are self-explanatory.

You will note that ………….. in her statement refers to her notes and report she gave to the RCMP. My opinion is that this constitutes a third party record and that an O’Connor Application needs to be made to obtain this document/record. Also, ……… in his statement, refers to his “regular case notes”. These were not turned over to the RCMP by him, however the same situation would apply here in regards to a third party application.

I will of course advise you if any further disclosure materials come to my attention. [ 9 ] …………. is a social worker with the Department of Community Services. ………… is a school community health worker. [ 10 ] Mr. Chipman acknowledged receipt, adding, “I expect to further explore these issues at the Preliminary Inquiry.” [ 11 ] Contrary to the Crown’s initial submissions, the Crown’s e-mail did not indicate that the Crown had possession of ………… ’s notes. The Crown disclosed …………… ’s R.C.M.P. statement on December 17, 2018.

Her statement described a “stepwise” investigation with the R.C.M.P., detailed some of her contact with the R.C.M.P., and stated that she interviewed Z.W., D.W., and E.S., as well as N.F. (S.W.’s maternal grandfather) and E.S. (S.W.’s maternal grandmother) . …... ………. ’s statement did not give details of those interviews. [ 12 ] The Crown also disclosed the statement of ……. …. on December 17, 2018. On June 15 and 25, 2020, E.W. made a pre-trial application in accordance with s. 278.3 for some of …. ……. ’s records. That application was granted in part ( R. v. E.W. , 2020 NSSC 191 , and R. v.

E.W. , 2020 NSSC 236 ). E.W. did not make a similar request for ………….. ’s notes. [ 13 ] The trial commenced on October 1, 2020. The Crown called the following witnesses: …………… ; ………….. ; Constable Robert James (Retired); Constable Deacon Foster; and S.W. On October 5 the Crown closed its case. [ 14 ] E.W. called evidence.

By the time this issue arose on October 6, 2020, E.W. had called the following witnesses: Z.W. (E.W. and E.S.’s son and S.W.’s older brother); D.W. (E.W. and E.S.’s son and S.W.’s younger brother); D.W. (E.W.’s mother and S.W.’s grandmother); and E.S. (E.W.’s wife and S.W.’s mother). [ 15 ] S.W. testified that E.W. had vaginal sex, anal sex, oral sex, and used a dildo with her when she was between the ages of five and twelve. She said that he would ejaculate on her and would often wipe the ejaculate off of her with a sock.

She also said that despite the fact that E.W. was very heavy, he had no difficulty having sex with her in various locations and in a variety of ways. [ 16 ] Witnesses for the defence emphasised that E.S. (S.W.’s mother and E.W.’s wife) told her family that she had been sexually abused by a relative when she was young. Therefore, she kept a watchful eye on S.W., never left her alone with E.W., and encouraged all of her children from a young age to alert her to any inappropriate touching.

She said that S.W. never said anything to her about abuse by E.W. [ 17 ] During cross-examination of E.S., the Crown put a series of prior statements to her regarding her interview with ………... The Crown initially suggested that E.S. had told ……….. that between 2007 and 2014 she and E.W. never stopped having sexual relations. E.S. denied have this sort of discussion with ………….. The Crown then emphasized that she had …………… ’s notes and was referring to them during the course of her questions. The following exchange then occurred: Ms. MacIsaac: Okay.

When you were speaking with ………… , would you agree with me you told her you only engaged in vaginal intercourse with E.W.? E.S.: I only what? Ms. MacIsaac: Engaged in vaginal intercourse. That was the kind of sex you had. E.S.: To see that he gets on top or I get on top, that’s all. Ms. MacIsaac: And what I’m indicating with vaginal intercourse is where his penis penetrates your vagina. Vaginal intercourse. Do you understand what I mean? Would this be the kind of sex you were having during that period? E.S.: Like I said, the only…the only sex we ever had was on top of one another. Ms.

MacIsaac: Okay, so there was never any anal sex? E.S.: No. Ms. MacIsaac: And there was never any oral sex? Okay, and you had indicated E.W. was pretty heavy for a period of time, yes? He was 300 pounds. Was he 300 pounds back in 2007?

E.S.: Might have. Ms. MacIsaac: You’re not certain about his weight in 2007? E.S.: He was quite heavy back then, yes. Ms. MacIsaac: And we know your evidence was that in 2013, he was very heavy, he was 300 pounds. E.S.: 2013? Ms. MacIsaac: Yes, you indicated to the Court today that he was 300 pounds. E.S.: Yes. Ms. MacIsaac: So, it’s possible between the period of 2007 and 2014 he was 300 pounds, correct? E.S.: He would have been in the later years, for sure. He might have been 2007 to 2013, he was probably up there, yeah. Ms.

MacIsaac: You would agree with me that even when E.W. was at what appears to be his heaviest of 300 pounds, he was able to puthis penis in your vagina, correct? E.S.: Yes. Ms. MacIsaac: When you were having sex with E.W., where did he ejaculate? E.S.: In me. Ms. MacIsaac: And, if I suggest to you, you indicated to …….., he sometimes ejaculated inside you and sometimes he would ejaculateon you. Would you agree or disagree with that? E.S.: He didn’t on me. Ms. MacIsaac: So now you’re saying he never ejaculated on you? E.S.: He did at times. Ms. MacIsaac: Okay, so at times.

At the times that he ejaculated on you, how would he clean him…or how would you clean yourselfup? How would the ejaculate get cleaned up? E.S.: Piece of toilet paper or a rag. Ms. MacIsaac: So if I suggested to you, when you spoke with ……………, you told her at that time you would kind of pick up a dirtyshirt or a piece of clothing off the floor and you would kind of clean yourselves up with that and throw it in the laundry basket, and youwould clean it, would you agree or disagree with that?

E.S.: Well a shirt or a rag or a piece of toilet paper. [18] On October 6, 2020, during the continued cross-examination of E.S., Mr. Chipman notified the court that he did not have…………….’s notes. He asked for an adjournment. Later that afternoon, the Crown provided E.W. with the interview notes pertainingto Z.W., D.W., and E.S., but not those relating to N.F. (S.W.’s maternal grandfather) and E.S. (S.W.’s maternal grandmother), or hermeetings with the R.C.M.P. and the Crown.

E.W. wants disclosure of the remaining notes of …... …….. [19] E.W. also seeks a stay of proceedings or a mistrial due to the late disclosure. Issues [20] The issues are (1) are ………..’s notes first party or third party disclosure? And (2) did the Crown breach its disclosureobligations, and, if so, what is the appropriate remedy? Positions of the parties [21] E.W. says the remaining notes of ………… are first-party disclosure and should be provided to him in the usual fashion as perR. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326.

He also says that due to the late disclosure of the statements of Z.W.,D.W., and E.S., his trial should either be stayed or a mistrial declared on the ground that proceeding in these circumstances is unfair. [22] The Crown says the remaining notes of …………. require a third-party records application by E.W. Additionally, they saythat in these circumstances the late disclosure can be cured by an adjournment. Issue 1: Are …………….’s notes first party disclosure or third party disclosure? [23] I decline to rule on this issue considering my decision in relation to Issue 2.

Issue 2: Was there was a breach of the Crown’s disclosure obligations and, if so, what is the appropriate remedy? [24] The Crown’s disclosure obligations relate to the accused’s rights under sections 7 and 11(

d) of the Charter of Rights andFreedoms.

Section 7 provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived

thereof except in accordance with the principles of fundamental justice.”

Section 11(

d) states that a person charged with an offence hasthe right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartialtribunal...” [25] In Stinchcombe, Sopinka J. explained the importance of full and timely Crown disclosure: 17. This review of the pros and cons with respect to disclosure by the Crown shows that there is no valid practical reason to support theposition of the opponents of a broad duty of disclosure.

Apart from the practical advantages to which I have referred, there is theoverriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law righthas acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles offundamental justice. … The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend toensure that the innocent are not convicted... [26] Justice Sopinka then outlined some of the very few limitations on Crown disclosure: 20.

As indicated earlier, however, this obligation to disclose is not absolute. It is subject to the discretion of counsel for the Crown. This discretion extends both to the withholding of information and to the timing of disclosure. For example, counsel for the Crown has aduty to respect the rules of privilege. In the case of informers the Crown has a duty to protect their identity. In some cases seriousprejudice or even harm may result to a person who has supplied evidence or information to the investigation.

While it is a harsh realityof justice that ultimately any person with relevant evidence must appear to testify, the discretion extends to the timing and manner ofdisclosure in such circumstances. A discretion must also be exercised with respect to the relevance of information. While the Crownmust err on the side of inclusion, it need not produce what is clearly irrelevant. The experience to be gained from the civil side of thepractice is that counsel, as officers of the court and acting responsibly, can be relied upon not to withhold pertinent information.

Transgressions with respect to this duty constitute a very serious breach of legal ethics. The initial obligation to separate "the wheat fromthe chaff" must therefore rest with Crown counsel. There may also be situations in which early disclosure may impede completion of aninvestigation. Delayed disclosure on this account is not to be encouraged and should be rare. Completion of the investigation beforeproceeding with the prosecution of a charge or charges is very much within the control of the Crown.

Nevertheless, it is not alwayspossible to predict events which may require an investigation to be re-opened and the Crown must have some discretion to delaydisclosure in these circumstances. [27] In R. v McNeil, 2009 SCC 3, Charron J. again reviewed the Crown’s disclosure obligations. She said, for the Court: [17] The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is wellestablished. The duty is triggered upon request and does not require an application to the court.

Stinchcombe made clear that relevantinformation in the first party production context includes not only information related to those matters the Crown intends to adduce inevidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accusedin the exercise of the right to make full answer and defence. … [18] While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions.

Unless the information isclearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in itspossession. The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure inthe usual course may result in harm to anyone or prejudice to the public interest.

The Crown’s exercise of discretion in fulfilling itsobligation to disclose is reviewable by a court. … [20] Implicit in the Crown’s broad duty to disclose the contents of its file under Stinchcombe are not the absence of any residualexpectation of privacy, but rather the following two assumptions. The first is that the material in possession of the prosecuting Crown isrelevant to the accused’s case. Otherwise, the Crown would not have obtained possession of it (O’Connor, at para. 12). The secondassumption is that this material will likely comprise the case against the accused.

As a result, the accused’s interest in obtainingdisclosure of all relevant material in the Crown’s possession for the purpose of making full answer and defence will, as a general rule,outweigh any residual privacy interest held by third parties in the material. These two assumptions explain why the onus is on theCrown to justify the non-disclosure of any material in its possession. [28] The obligation on the Crown to provide disclosure in a timely fashion was discussed in R. v. Egger, (SCC),[1993] 2 S.C.R. 451.

In that case the Supreme Court of Canada clarified that the Crown not only has a duty to disclose all informationreasonably capable of affecting an accused’s ability to make full answer and defence, but also to do so early enough to leave the accusedadequate time to take any steps they would be expected to take that affect or may affect such a right. [29] In R. v. Taillefer; R. v.

Duguay, 2003 SCC 70, in the context of describing the approach to be taken by an appeal courtconsidering whether to admit fresh evidence, Lebel J. explained the difference between a technical breach of the Crown’s disclosureobligations and a breach where there is a reasonable possibility that the failure to disclose results in an unfair trial. After noting thatdisclosure is only one component of the right to full answer and defence, and that an infringement of the right to disclosure will notalways infringe that right, he said: 71 ...

There are situations in which the information not disclosed will meet the minimum test set outin Stinchcombe while having only marginal value to the issues at trial... To determine whether there is an infringement of the right tomake full answer and defence, the accused will have to show that there was a reasonable possibility that the failure to disclose affectedthe outcome at trial or the overall fairness of the trial process... 81 Dixon ... sets out a two-step test.

To assess the reliability of the result of the trial, “the undisclosed information mustbe examined to determine the impact it might have had on the decision to convict”... First, the onus is on the accused to demonstrate thatthere is a reasonable possibility that the verdict might have been different but for the Crown’s failure to disclose all of the relevantevidence. The accused therefore does not have the heavy burden of demonstrating that it is probable or certain that the fresh evidence

would have affected the verdict... 82 Second, applying this test requires that the appellate court determine that there was a reasonable possibility that the jury, with the benefit of all of the relevant evidence, might have had a reasonable doubt as to the accused’s guilt. The aim is therefore not to examine the undisclosed evidence, item by item, to assess its probative value; that is the role assigned to the trier of fact.

Rather, an effort must be made to reconstruct the overall picture of the evidence that would have been presented to the jury had it not been for the Crown’s failure to disclose the relevant evidence. Whether there is a reasonable possibility that the verdict might have been different must be determined having regard to the evidence in its entirety. 83 A negative answer at the first stage does not bring the analysis to a close. The appellate court must then inquire as to whether there is a reasonable possibility that the failure to disclose affected the overall fairness of the trial process .

Prior to Dixon , the courts had been strongly inclined to analyze the infringement of the right to make full answer and defence solely through the prism of the reasonably possible impact of the fresh evidence on the result of the trial process... Dixon , however, clearly established that the determination of whether there exists a reasonable possibility that the fresh evidence would have an impact on the result of the trial process should be dealt with as a separate issue from the assessment of the effect of the failure to disclose on the overall fairness of the trial.

It will not be enough to determine whether the right to make full answer and defence has been infringed having regard solely to the nature of the fresh evidence. The potential usefulness of that evidence to the defence will also have to be considered . 84 The reasonable possibility of affecting the overall fairness of the trial “must be based on reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure”...

Here again, the appellate court must not assess the possible uses of the fresh evidence based on an item-by-item analysis of the probative value of the evidence. It must ascertain whether the failure to disclose deprived the accused of certain evidential or investigative resources . That would be the case, for example, if the undisclosed statement of a witness could reasonably have been used to impeach the credibility of a prosecution witness.

The conclusion would necessarily be the same if the prosecution fails to disclose to the defence that there is a witness who could have led to the timely discovery of other witnesses who were useful to the defence. [Emphasis added] [ 30 ] Although in the instant case we are mid-trial, not dealing with fresh evidence on appeal, the direction provided in Taillefer is instructive. Legislation [ 31 ] Sections 278.2(2) and (3) of the Criminal Code state: Application of provisions

(2) Section 278.1, this

section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections. Duty of prosecutor to give notice

(3) In the case of a record in respect of which this

section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents. [Emphasis added] [ 32 ] The language in s. 278.2(3) is clear and makes it mandatory that the Crown notify an accused person that the records are in their possession. In R. v. Quesnelle , 2014 SCC 46 , the Court said: [16] Once the Crown obtains a record and determines that it is covered by the Mills regime, it must give notice to the accused: Criminal Code , s. 278.2(3) .

While the Crown may not disclose the contents of the record, it should in appropriate circumstances give an assessment of the likely relevance of a record in its possession, as well as indicate the basis of its relevance. At a minimum, the Crown should advise if it intends to use any information contained in records protected by Mills as part of its case against an accused. The Crown’s assessment that the record is relevant for a specific reason will likely establish a basis for the judge to order production to the court.

The Crown’s Failure to Disclose [ 33 ] As noted above, the Crown e-mailed defence counsel on December 17, 2018, disclosing …………… ’s statement, with references to notes of her interviews with E.S. (mother), Z.W., D.W., N.F., and E.S. (grandmother). The e-mail did not indicate that the Crown had possession of ……………. ’s notes. But they did. With no proper notification to the defence, no application by the defence, and no express waiver from anyone, the Crown relied on those notes in preparing to cross-examine E.S., and referred to them when cross-examining E.S.

This only came to light at trial. [ 34 ] During submissions on October 14, 2020, Crown counsel initially suggested that the December 2018 e-mail to defence counsel indicated “that we were in possession of these records.” When the Court directed Crown counsel to the actual wording of the e-mail, and asked “[w]here does that say that the Crown has possession of those notes?”, counsel agreed that it did not say that, and indicated that, to her knowledge, the Crown had never advised the defence that these notes were in its possession prior to October 6, 2020 .

When asked under what authority the Crown had reviewed the undisclosed notes and then used them in the cross-examination of E.S., the following exchange occurred: Ms. MacIsaac: Uh, My Lord, I believe that the authority would be the defence in calling its witness, that the relevance of those notes, my friend had referred to those notes to Mr. Chipman. It is only on hearing the witness’ testimony that the Crown became aware that they would be relevant to her testimony.

The Court: That’s not the question. Ms. MacIsaac: Right. Where is the authority? The Court: Where is the authority for the Crown to use those notes in open court? If you’re saying they fall under the 278 regime and you didn’t have a waiver from anybody in relation to these notes, other than …………… giving those notes to the RCMP who then gave them to you, if that’s the way it worked – is that right? Ms. MacIsaac: Yes. The Court: What authority did you have to use those notes? Ms.

MacIsaac: My Lord, I believe that the authority for using those records is, as my friend has suggested, that relevance is a continuing and ongoing assessment by the Crown. That the relevance of those specific notes to E.S. became apparent when she was on the stand giving testimony. That it would be evolving, particularly as it relates to E.S, because E.S.’s privacy interest in those notes would be less than the complainant. [ 35 ] Based on this reply, I queried whether the Crown was suggesting that there was a differential standard of privacy.

Counsel indicated that the third party records regime “was intended to protect complainants’ privacy interests when coming forward” and that “[s] Some of the things that may be included in records may give it a greater or lesser expectation of privacy.” The exchange continued: The Court: But you’re saying that E.S. and, presumably then, D.W. and Z.W., who weren’t complainants in this case and aren’t the subject of any criminal litigation, would have a lower expectation of privacy. Ms.

MacIsaac: I think, in particular, if you’re speaking about the information as it relates to the information before the Court, that would be lesser. They’re somewhat waiving that privacy interest by speaking about those instances. The Court: So again, I’m asking you, if information, I mean let’s be square here, you were in the midst of cross-examining on, what appeared to me sitting here watching this trial, were prepared cross-examination questions. Ms. MacIsaac: Yes. The Court: It wasn’t spontaneous, you digging through your file and finding …… ……… ’s notes, asking those questions.

You had prepared to ask those questions, having heard E.S.’s direct examination. Ms. MacIsaac: Yes The Court: Okay. So you knew you were going to rely on those notes in cross-examining E.S., right? Ms. MacIsaac: Yes. The Court: But you didn’t disclose them to the defence. What I’m asking is what authority is there, what I don’t know is, what authority are you relying on for the Crown to have possession of disclosure information in their file, that they are going to use to try and destroy a defence witness, without disclosing it to the defence. That’s what I’m…I’m missing that.

You haven’t shown me anything in your brief and you haven’t said anything yet that explains that to me. Or, if you have, I’m missing it and you need me to understand it before you sit down. I need to know what you’re talking about. Ms. MacIsaac: Okay, and perhaps, My Lord, I have looked more specifically at that issue where the information, I believe, that as it became apparent that this information was going to be relevant to the witness’ credibility.

That, at that time, those records became relevant and I believe that would go back to um… [ 36 ] Crown counsel agreed that the privacy interest in the notes had not changed between December 2018 and October 2020. The Crown again pointed out that s. 278.2(3) imposes a duty to give notice but not to disclose the records. However, the Crown agreed that this did not mean that the Crown could rely on the notes without disclosing them.

Counsel ultimately conceded that the Crown knew between December 2018 and October 2020 that the defence did not have the notes. [ 37 ] After recessing to allow Crown counsel to consider the issue, counsel made the following submissions respecting the use of material not disclosed to the defence, and the Crown’s state of knowledge: Ms. MacIsaac: My Lord, and I believe the answer to your question which was what authority would I have that would allow me to use it, a document which was not in possession of defence, and I don’t believe there is authority that I should be able to do that.

I became in possession, I was not an original Crown on this file and I realize that’s not any type of excuse, but upon learning from Mr. Chipman he was not in possession, I was not aware he was not in possession of that document, note from ……… , and referred to it in my cross- examination and became aware that he did not possess that record after his objection. The Court: Similar issue in relation to Z.W. and D.W.? Like, were you, did you know that he wasn’t in possession of any of …………. ’s notes? Ms. MacIsaac: I was not aware he was not in possession of any of ………… ’s notes.

The note specific to E.S.’s testimony was the only note that I referred to in preparation for her testimony. I wasn’t aware that Mr. Chipman did not have that document. So, upon learning he was not in possession of that document, we provided it to him. Although, I believe the Code would indicate that were we to be in a possession we are not to disclose that, but my use of it, obviously, was unfair. Mr. Chipman was not in possession of that document and we provided it to him upon… The Court: So, your

interpretation of the Code is that these are third-party records that you, Crown came into possession of, that you

should have alerted defence to and given them an opportunity to make an application for those records, and if they did not then the Crown would not be able to rely on those records either, is that correct? Ms. MacIsaac: The alternative that had I been unaware before I would have been able to seek an express waiver, which we did for other records, provide Mr. Chipman with a copy of that.

I believe there’s a way to obtain an express waiver, which would allow the use of third-party records, but that was not done. [ 38 ] Counsel confirmed that there had been no express waiver, and therefore that was irrelevant to the Crown’s knowledge of whether the defence had the notes, though counsel reiterated that she had not been aware that the records had not been disclosed (or obtained through an application) prior to October 6, 2020. At that point, she said, she provided the materials that have been disclosed.

I asked what differentiated the notes that were disclosed at that time from those the Crown was still withholding. Counsel suggested that the distinction was that the withheld notes related to individuals contacted by ………….. who had not been called as witnesses at trial. I asked for clarification of how this was consistent with Stinchcombe : The Court: Right. So what makes those, what I’m asking is what makes those individuals different than Z.W. and D.W. and E.S.? Why, why are they under a different cloak of protection than those three? Ms.

MacIsaac: I believe, in fairness, I had referred to E.S.’s notes and I believe as a way of attempting to kind of remedy any concerns about the notes themselves, the decision was made to provide Z. and D.’s notes because they had also been witnesses, whereas the other individuals had not been witnesses. The Court: But without that information, how could the defence make a decision about whether or not they should or shouldn’t be necessarily? I mean the Crown had those, you said that the Crown has had those notes since December of 2018 and obviously read them because you used them to prep for cross.

So, I’m still not following your train of logic and I’m looking for some help here. Ms. MacIsaac: Sure. The Court: Why you say that those other individuals, the grandparents or whomever else is left over, have a different…are in a different boat just because they weren’t called as witnesses, is that it? Ms. MacIsaac: Well, and I think because, I think originally they were anticipated because these were records which were subject to a 278 regime. That for defence to obtain those records, notice would be given and they would have made an application. That didn’t happen.

I used the record of E.S. for the purpose of cross-examination and there is the remainder of the record, or the notes, which were not disclosed as part of the… The Court: I understand what wasn’t. I’m just asking why you’re arguing that they should be treated differently than the ones that were already given. I’m not saying two wrongs make a right. I’m asking you: Is there something that differentiates them, aside from the fact that those people happened to be called? Ms. MacIsaac: I don’t believe so.

I believe that, my understanding of the general content is that those were individuals who were spoken to by …………… and were not called as witnesses. So the relevance, or likely relevance, of those records themselves would have to be established. The Crown in providing, I believe, the statement of D., Z., E.S., would have conceded likely relevance, obviously, by using the record, being unaware that Mr. Chipman was not in possession of that.

But, in use of that, it would have established likely relevance and that we would have conceded the likely relevance of the notes of both D. and Z. by virtue of giving them to Mr. Chipman. [ 39 ] I referred Crown counsel to ……. ……… ’s account of her involvement with the investigation, including participating in a “Step-Wise interview” of S.W. in which S.W. disclosed the allegations of abuse, and her ongoing involvement in the interviews, which her statement indicated were described in her notes. I then put the following to the Crown: The Court: So, Mr.

Chipman’s argument is that this appears to have been a joint investigation between ………… and the RCMP in an effort to determine what charges, etc., should, whether or not E.W. should be facing charges. All of her information was provided to the RCMP in that regard and that, as a result, this converts what may sometimes be considered third-party type information to first-party disclosure because of her close work with the RCMP in relation to this matter. So, what do you have to say about that? Ms.

MacIsaac: Well, I believe, ………….. states here, it says that, Throughout the remainder I’ve made numerous calls and numerous contacts and inquiries with partner agencies and relevant persons related to the child protection concerns stemming from this allegation. That the predominant effort of her work related to the child protection part of the investigation as opposed to the investigation of the criminal components of it.

I believe that the referral to something as a stepwise joint investigation also seems to be answered by the fact that in her referral to the conversations with both Z. and D. that no disclosures were made – that form of interview is intended to elicit, if any, allegations of abuse from children. If it’s occurred to them, but that questions or that interview with Z. and D. would have been provided to defence in disclosure. They would have had copies of interviews with both of those persons, just not necessarily the notes.

So they would have had access to both police statements, which would have been attended by …………., in the initial disclosure. So, I guess, and then the other component of it is s.278, where it’s not clear entirely that all of the activities that …………….. did, particularly as it related to, for example the interview with E.S., there was no police involvement there.

It wasn’t an interview per se, it was meeting as it related to child protection, which is a separate – I don’t want to say entity – but a separate process as it related to the child protections which would be caught by s.278. [ 40 ] Despite the Crown’s comments and suggestions, I cannot discern a clear explanation for the failure to disclose. It seems impossible to say why the Crown failed to disclose ………….. ’s notes, yet nevertheless used them to prepare for cross-examination of a defence witness.

[41] The Crown did state that the failure to disclose is unfair to E.W. Defence due Diligence [42] The Crown says E.W. did not show due diligence in pursuing ………….’s notes, and says this impacts on his ability tocomplain about late disclosure. The defence obligation to pursue disclosure with due diligence, and how a failure to do so might affectthe appropriate remedy, was discussed in R. v. Dixon, (SCC), [1998] 1 S.C.R. 244. Cory J., said, for the court: 37 ... A lack of due diligence is a significant factor in determining whether the Crown’s non-disclosure affected thefairness of the 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 withits duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to theaccused if possible and thus avoid a new trial. See Caccamo v. The Queen, (SCC), [1976] 1 S.C.R. 786. Failure to doso by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seekingand pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. Asofficers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to becomeaware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.

This was aptly stated by the British Columbia Court of Appeal in R. v.Bramwell (1996), (BC CA), 106 C.C.C. (3d) 365 (aff’d, (SCC), [1996] 3 S.C.R. 1126), at p. 374: . . . the disclosure process is one which engages both the Crown and the defence. It is not one in which defence counsel has no role toplay except as passive receiver of information. The goal of the disclosure process is to ensure that the accused is not denied a fair trial.

To that end, Crown counsel must disclose everything in its possession which is not clearly irrelevant to the defence, but the defence mustalso play its part by diligently pursuing disclosure from Crown counsel in a timely manner.

Further, where, as here, defence counselmakes a tactical decision not to pursue disclosure of certain documents, the court will generally be unsympathetic to a plea that fulldisclosure of those documents was not made. [43] Justice Cory went on to address the question of remedy: 38 Whether a new trial should be ordered on the basis that the Crown’s non disclosure rendered the trial process unfairinvolves a process of weighing and balancing.

If defence counsel knew or ought to have known on the basis of other disclosures that theCrown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of duediligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial... 39 In sum, all these factors must be appropriately balanced. In situations where the materiality of the undisclosedevidence is, on its face, very high, a new trial should be ordered on this basis alone.

In these circumstances, it will not be necessary toconsider the impact of lost opportunities to garner additional evidence flowing from the failure to disclose. However, where themateriality of the undisclosed information is relatively low, an appellate court will have to determine whether any realistic opportunitieswere lost to the defence.

To that end, the due diligence or lack of due diligence of defence counsel in pursuing disclosure will be a verysignificant factor in deciding whether to order a new trial... … 55 It must be remembered that defence counsel is not entitled to assume at any point that all relevant information has beendisclosed to the defence. Just as the Crown’s disclosure obligations are ongoing, and persist throughout the trial process, so toodoes defence counsel’s obligation to be duly diligent in pursuing disclosure.

To do nothing in the face of knowledge that relevantinformation has not been disclosed will, at a minimum, often justify a finding of lack of due diligence, and may, in certaincircumstances, support an inference that counsel made a strategic decision not to pursue disclosure. In this case, the

summary inthe occurrence report indicates that Daye’s statement would very likely meet the test for relevance set out in Stinchcombe. When defencecounsel reviewed the occurrence report, he knew or should have known that the Crown had failed in its disclosure obligations. Whenthis became apparent, defence counsel should have brought this matter to the attention of the trial judge at the earliest opportunity.

Inthe circumstances of this case, the Court of Appeal was right to conclude that at this point, defence counsel was faced with a choice:“call for the statements or live without them” (p. 93). [Emphasis added] [44] The Crown did not notify E.W. in December 2018 that they had …………’s notes in their possession, as they were required todo. They indicated that …... ……… had notes, and that her statement made reference to the possible content of those notes.

Mr.Chipman concedes that he should have sought disclosure, but says the prejudice to E.W. caused by the failure to disclose is significantand will carry forward throughout his trial. As Farrar J.A. noted in R. v. Sandeson, 2020 NSCA 47, at para. 70, “[d]ue diligence or lackthereof is not conclusive and, as Cory J. explained in Dixon [at para 39], its significance is negatively correlated with the materiality ofthe undisclosed evidence...” Analysis of the Disclosure Breach [45] E.W. was not aware of the details of …………….’s notes prior to their disclosure on October 6.

As a result, he could notconsider their content when devising his trial strategy, cross-examining Crown witnesses, and selecting and preparing his ownwitnesses. Contrary to basic Stinchcombe obligations, the Crown had the notes, and relied on them to prepare for and conduct the trial,but did not disclose them to E.W. [46] The Crown says the information in ……………..’s notes is insignificant, and that they did not use the notes to impeach Z.W.

or D.W. on cross-examination. The Crown says their impeachment of E.S. related to non-material issues. Initially, E.S.’s evidence thatE.W. only ejaculated inside her did not line up with S.W.’s evidence that E.W. ejaculated on her and wiped up the ejaculate with a sock. The Crown’s use of the notes in cross led E.S. to change her evidence on this point, agreeing that E.W. had also ejaculated on her andused dirty clothes or toilet paper to wipe up the ejaculate. The cross-examination of E.S. was not complete when it was interrupted bythis application.

While not a smoking gun, this evidence is relevant to the outcome of the trial. There is certainly a reasonable possibilitythat the failure to disclose this evidence deprived E.W. of certain evidentiary and investigative opportunities. [47] The Crown breached its duty to disclose in this case. E.W.’s ss. 7 and 11(

d) Charter rights were violated. I am satisfied thatthe breach has prejudiced the accused’s right to a fair trial. Because the Crown breached their disclosure obligations, the appropriateremedy must be considered. The Appropriate Remedy [48] E.W. seeks a stay of proceedings or a mistrial, relying on the following cases: Stinchcombe; Sandeson; R. v. Babos, 2014 SCC16; R. v. Leduc, (SCC), [1993] 3 S.C.R. 641; R. v. R.D.L., 1994 ABCA 222; R. v. Berger, 2015 QCCS 4666; R. v.Antellio (1995), 1995 ABCA 117 , 165 A.R. 122 (Alta. C.A.); and R. v. Bernard,

(1991) CanLii 4298 (S.C.T.D.). The Crownsays that because the disclosure breach occurred mid-trial and did not relate to “material” information, an adjournment is the appropriateremedy, citing Dixon; R. v. Melvin, 2017 NSSC 273; R. v. Watt, 2008 NSCA 25. [49] The test for a stay of proceedings was set out in R. v. Babos, where Moldaver J. stated for the majority: [30] A stay of proceedings is the most drastic remedy a criminal court can order... It permanently halts the prosecutionof an accused.

In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justicedone on the merits. In many cases, alleged victims of crime are deprived of their day in court. [31] Nonetheless, this Court has recognized that there are rare occasions —the “clearest of cases” — when a stay ofproceedings for an abuse of process will be warranted (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 68).

Thesecases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and(2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual”category)... [32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists ofthree requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system 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 after steps (1) and (2), the court is required to balance theinterests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “theinterest that society has in having a final decision on the merits”... [33] The test is the same for both categories because concerns regarding trial fairness and the integrity of the justicesystem are often linked and regularly arise in the same case.

Having one test for both categories creates a coherent framework thatavoids “schizophrenia” in the law...

But while the framework is the same for both categories, the test may — and often will — play outdifferently depending on whether the “main” or “residual” category is invoked. [34] Commencing with the first stage of the test, when the main category is invoked, the question is whether theaccused’s right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; inother words, the concern is whether there is ongoing unfairness to the accused. [50] E.W. says his right to a fair trial has been prejudiced because he was unaware of the details of …………..’s interview withE.S., and, to a lesser extent, her interviews with Z.W. and D.W.

He says this prejudice will be carried forward throughout the trial. Inhis brief, E.W. describes the use of …………..’s statement by the Crown in attacking E.S.’s credibility, including with respect to E.W.’sroutines after intercourse. Counsel submits the defence strategy might have been modified in light of this information. In short, thedefence submits, “[i]f earlier disclosure had been made of [E.S.’s] interview of May 14, 2018, different decisions may have been made inthe conduct of [E.W.’s] defence.

It is not possible to rectify the error as many witnesses have testified.” [51] I will consider the arguments in light of the three-part test for a stay of proceedings established in Babos.

(1) Prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested,perpetuated or aggravated through the conduct of the trial, or by its outcome”; [52] As described above, E.W.’s right to a fair trial has been prejudiced by the Crown’s failure to comply with s. 278.2(2) of theCriminal Code. That prejudice will be perpetuated, and aggravated through the rest of the trial.

I am speaking specifically of E.S.’sevidence about E.W.’s behaviour during and after sex, which changed when the notes were put to E.S. on cross-examination: Crown: When you were having sex with E.W., where did he ejaculate? E.S.: In me. Crown: And, if I suggest to you, you indicated to …… ……, he sometimes ejaculated inside you and sometimes he would ejaculate onyou. Would you agree or disagree with that?

E.S.: He didn’t on me. Crown: So now you’re saying he never ejaculated on you? E.S.: He did at times. Crown: Okay, so at times. At the times that he ejaculated on you, how would he clean him…or how would you clean yourself up? Howwould the ejaculate get cleaned up? E.S.: Piece of toilet paper or a rag. Crown: So if I suggested to you, when you spoke with …………, you told her at that time you would kind of pick up a dirty shirt or apiece of clothing off the floor and you would kind of clean yourselves up with that and throw it in the laundry basket, and you wouldclean it, would you agree or disagree with that?

E.S.: Well a shirt or a rag or a piece of toilet paper. [53] The Crown breached E.W.’s ability to have a fair trial through the non-disclosure of at least part of ………….’s notes. Thequestion remains whether continuing this trial is unfair and, if so, what is the appropriate remedy?

(2) No alternative remedy capable of redressing the prejudice; [54] I do not agree with the Crown that an adjournment is the appropriate remedy in this situation. The prejudice to the fair trialprocess in this case due to the non-disclosure is too significant and far-reaching to be cured by an adjournment. In Sandeson, Farrar J.A.,rejected the use of an adjournment to cure a mid-trial disclosure issue, and stated (some citations omitted): [65] In R. v.

T.S., 2012 ONCA 289, Watt J.A. provided a helpful statement on how to assess the impact of the late disclosure on trialfairness: [127] To assess the impact of the undisclosed evidence on the overall fairness of the trial, we must assess whether the appellant hasshown a reasonable possibility that the overall fairness of the trial was impaired by the failure to disclose. This inquiry examines not onlythe content of the undisclosed information, but also the realistic opportunities to use the undisclosed information for purposes ofinvestigation or gathering other evidence...

A relevant consideration is the diligence of trial counsel's pursuit... … [129] An appellant can discharge the burden of establishing a reasonable possibility that a failure to disclose impaired the overallfairness of the trial process by showing that the undisclosed evidence could have been used to impeach the credibility of a witness for theCrown, or could have helped the defence in its pre-trial investigations and preparations, or in its tactical decisions made at trial... [Emphasis in original] [66] Trial fairness includes concerns about the integrity of the justice system. In R. v. Rajalingam, [2003] O.J.

No. 530 (Ont. Sup.Ct. J.), aff’d [2004] O.J. No. 3920 (Ont. C.A.) the court held “[a] breach of

section 7 of the Charter occurs if the late disclosure eitherimpairs the ability of the accused to make full answer and defence or where the integrity of the administration of justice is threatened byan unfair trial”... A corollary to this is that examining the impact of the late disclosure also includes considering the appearance offairness... [67] Once an infringement of the right to make full answer and defence is shown, the accused is entitled to a remedy under s. 24(1)of the Charter. At this stage, the degree of prejudice to the accused’s rights must be considered...

When the late disclosure occurs at thetrial level, an adjournment and disclosure order will usually suffice ... unless the accused shows another remedy is necessary to cure trialunfairness or maintain the integrity of the justice system... Ultimately, as Steel J.A. explained in R. v. Korski, 2009 MBCA 37, ¶93: … remedies for late or non-disclosure … must be responsive to the circumstances of the breach of the accused's disclosure rights. Theanalysis is context-dependent. Remedies for late or non-disclosure may range from an adjournment to a stay of proceedings.

In decidingwhich remedy is appropriate, a court may take into account a variety of factors, including the stage of proceedings and the impact of theevidence on the proceedings. … [68] In R. v. T. (L.A.), (ON CA), 1993 CarswellOnt 1497, 84 C.C.C. (3d) 90 (Ont. C.A.), the Court of Appealfound that where the late disclosure of a witness statement “considerably, and arguably, irredeemably reduced” defence counsel’s abilityto attack the credibility of the complainant and could have affected the appellant’s election as to mode of trial, further cross-examinationwas inadequate to address the prejudice.

A new trial was warranted... [55] On the other hand, I do not agree with E.W. that a stay of proceedings is the appropriate remedy to address the prejudice in thiscase. In view of the lack of due diligence by defence counsel, and the somewhat collateral nature of the evidence involved, this is notone of “the clearest of cases” that would call for a stay of proceedings. As Moldaver J. said in Babos: [39] At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing theprejudice.

Different remedies may apply depending on whether the prejudice relates to the accused’s right to a fair trial (the maincategory) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focusis on restoring an accused’s right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address theprejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to theintegrity of the justice system, remedies must be directed towards that harm.

It must be remembered that for those cases which fall

solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in thepast. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice systemfrom the impugned state conduct going forward. [56] Here we are dealing with the “main category”, not the “residual category”, as described in Babos. The state conduct in failingto disclose has compromised the fairness of E.W.’s trial.

In the circumstances presented on this application, however, this failure doesnot undermine the integrity of the judicial process. [57] In R. v. Bjelland, 2009 SCC 38, Rothstein J., for the majority, cited R. v. Horan, 2008 ONCA 589, on the purpose underlyingthe duty to disclose. In that case, Rosenberg J.A. said, at para. 26: “Put simply, disclosure is a means to an end.

Full prosecutiondisclosure is to ensure that the accused receives a fair trial, that the accused has an adequate opportunity to respond to the prosecutioncase and that in the result the verdict is a reliable one.” Rothstein J. continued: [21] However, the Crown’s failure to disclose evidence does not, in and of itself, constitute a violation of s. 7. Rather, an accused mustgenerally show “actual prejudice to [his or her] ability to make full answer and defence” (R. v.

O’Connor, (SCC), [1995]4 S.C.R. 411, at para. 74) in order to be entitled to a remedy under s. 24(1). [22] While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society morebroadly. In R. v. Harrer, (SCC), [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what ismeant by trial fairness. She stated, at para. 45, that: At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community.

A fair trialmust not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, (SCC),[1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldomattained.

A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for theaccused. [Emphasis by Rothstein J.] [58] Justice Rothstein went on to clarify the conditions in which different categories of remedy are appropriate: [24] Thus, a trial judge should only exclude evidence for late disclosure in exceptional cases: (

a) where the late disclosure renders thetrial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (

b) where exclusion isnecessary to maintain the integrity of the justice system.

Because the exclusion of evidence impacts on trial fairness from society’sperspective insofar as it impairs the truth-seeking function of trials, where a trial judge can fashion an appropriate remedy for latedisclosure that does not deny procedural fairness to the accused and where admission of the evidence does not otherwise compromise theintegrity of the justice system, it will not be appropriate and just to exclude evidence under s. 24(1). [25] This view is reflected in cases such as O’Connor that have considered whether a stay is the appropriate remedy for late orinsufficient disclosure under s. 24(1).

As L’Heureux-Dubé J., for the majority, stated in O’Connor, at para. 83: In such circumstances [of late or insufficient Crown disclosure and a consequent s. 7 breach], the court must fashion a just andappropriate remedy, pursuant to s. 24(1). Although the remedy for such a violation will typically be a disclosure order and adjournment,there may be some extreme cases where the prejudice to the accused’s ability to make full answer and defence or to the integrity of thejustice system is irremediable.

In those “clearest of cases”, a stay of proceedings will be appropriate. [26] This statement recognized that the appropriate focus in most cases of late or insufficient disclosure under s. 24(1) is the remediationof prejudice to the accused, but that safeguarding of the integrity of the justice system will also be a relevant concern. Of course theprejudice complained of must be material and not trivial. For example, the exclusion of evidence may be warranted where the evidenceis produced mid-trial after important and irrevocable decisions about the defence have been made by the accused.

Even then, it is forthe accused to demonstrate how the late disclosed evidence would have affected the decisions that were made. For purposes of trialfairness, only where prejudice cannot be remedied by an adjournment and disclosure order will exclusion of evidence be an appropriateand just remedy. [27] There may also be instances where an adjournment and disclosure order may not be appropriate because admission of evidencecompromises the integrity of the justice system.

For example, as Rosenberg J.A. stated in Horan, at para. 31: In some cases, an adjournment may not be an appropriate or just remedy if the result would be to unreasonably delay the trial of anin-custody accused. In such a case, an appropriate remedy could be exclusion of the undisclosed evidence. However, the burden is onthe accused to demonstrate that exclusion of the evidence was appropriate. In other words, where an accused is in pre-trial custody, an adjournment that significantly prolongs the custody before trial may be seenas compromising the integrity of the justice system.

The exclusion of evidence may also be an appropriate and just remedy where theCrown has withheld evidence through deliberate misconduct amounting to an abuse of process. Yet even in such circumstances, society’sinterest in a fair trial that reaches a reliable determination of the accused’s guilt or innocence based on all of the available evidencecannot be ignored. This will especially be true where the underlying offense is a serious one: see O’Connor, at para. 78.

In clear cases,however, the exclusion of evidence may be an appropriate and just remedy under s. 24(1) in order to preserve the integrity of the justicesystem. [59] In Sandeson, Farrar J.A. determined that upon formal notification of the new disclosure mid-trial, the accused should havebeen provided a more fulsome opportunity to consider, and possibly make, an abuse of process argument related to the “residualcategory”, not the “main category” as in the instant case.

Following a “context-dependent” analysis, he ruled that, due to the hectic paceof that jury trial, an adjournment and further cross-examination would not provide sufficient opportunity for the accused to consider thepotential process-related arguments arising from the disclosure. Justice Farrar determined that a mistrial was the only proper remedy. [60] The failure to disclose …………’’s notes had an unfair, and cascading, effect on E.W.’s trial. He prepared for trial and made

strategic decisions without the benefit of that information. The Crown conducted direct examination of their witnesses with the knowledge of the content of those notes, while the defence cross-examined the Crown witnesses without it. E.W. elected to call evidence, including three witnesses who were interviewed by …... …….. and who were the subject of part of those notes. The defence conducted direct examination of their own witnesses, including E.S., Z.W., and D.W., without the benefit of ……. …….. ’s notes.

Whether or not the Crown relied on those notes, they had access to them when they cross-examined Z.W. and D.W. [ 61 ] In relation to E.S., the Crown used the notes to prepare for cross-examination, then used those notes to impeach E.S., such that she changed her testimony in at least one identifiable respect.

The Crown agrees that this has created an unfair situation for E.W., but have provided no comprehensible explanation for their failure to disclose. [ 62 ] The exclusion of evidence has not been presented as a realistic remedy by either party, considering the circumstances of this case and how the disclosure issue unfolded mid-trial. An adjournment will not provide E.W. with a chance to reconsider his trial strategy and also decide whether to make other process-related arguments in view of the late-disclosed notes. E.W. has requested a stay of proceedings.

Considering the defence lack of due diligence and the specific impact of the new information on E.W.’s case as has been advanced at this stage, this is not one of the clearest of cases such that a stay of proceedings is required. [ 63 ] The appropriate remedy in this case is a mistrial.

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” ( ibid. , at para. 57). [ 64 ] As noted in Babos , the step (3) analysis is only required if there is still uncertainty over whether a stay is warranted after undertaking the analysis at steps (1) and (2) (para. 40).

In this case there is no need for an analysis under step (3), since it is clear that another remedy short of a stay is available to address the concerns raised by the Crown’s failure to disclose. Conclusion [ 65 ] I am satisfied that a mistrial is the appropriate remedy for the breach of E.W.’s Charter right to Crown disclosure in the circumstances of this trial. Arnold, J.