R. v. MacLean, 2019 BCPC 284

Citation: R. v. MacLean 2019 BCPC 284 Date: 20191028 File No: 65565-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. ISAIAH FOREST MACLEAN ORAL RULING ON DEFENCE CHARTER APPLICATION OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: F. Lepine, J.M. Le Dressay & Associates Counsel for the Defendant: S.J. Tessmer Place of Hearing: Chilliwack , B.C. Date of Hearing: August 6, 2019 Date of Judgment: October 28, 2019 INTRODUCTION

[ 1 ] While driving a motor vehicle on a highway near Hope, British Columbia, the defendant, Isaiah Forest MacLean, was stopped, searched and arrested by Cpl. Catellier, of the Royal Canadian Mounted Police (the “RCMP”), for possessing in excess of three kilograms of a controlled substance, namely marihuana, for the purpose of trafficking. [ 2 ] Mr. MacLean, through his counsel, Mr. Tessmer, sought disclosure of various information and documents from the Crown to determine whether the reason for the stop was speeding, as the Crown submits, or a drug investigation as Mr. MacLean suspects. [ 3 ] Mr.

MacLean alleges that the Crown did not provide timely or full disclosure to enable him to make full answer and defence to the charge he is facing. [ 4 ] Mr. MacLean applies for the following remedies: (

a) costs of $5,600 as a result of the adjournment of his trial on April 16, 2019 on the basis that the Crown’s disclosure was late; and (

b) a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms on the basis that the Crown did not provide full disclosure. [ 5 ] I heard Mr. MacLean’s application on August 6, 2019 (the second date set for his trial), and reserved my decision. The following are the reasons for my ruling on that application.

CHRONOLOGY OF RELEVANT EVENTS [ 6 ] I will first set out the chronology of the relevant events, which is important for the understanding of the issues at hand. [ 7 ] The date of the alleged offence was April 27, 2018. [ 8 ] The Information was sworn on July 26, 2018. [ 9 ] By letter dated August 10, 2018, defence counsel notified the Crown that he was retained to represent Mr. MacLean in this matter, and requested all particulars. He also requested that the matter be put over to September 3, 2018. [ 10 ] Mr.

MacLean’s first appearance in Chilliwack Provincial Court was on August 13, 2018. [ 11 ] By letter dated August 14, 2018, the Crown provided disclosure to defence counsel. The letter indicated that the next appearance date was on September 4, 2018. [ 12 ] By letter dated August 30, 2018, defence counsel requested additional disclosure from the Crown, stating “I require copies of all database searches conducted by Cpl. Catelier [ sic ] prior to his decision to search the vehicle.” [ 13 ] The matter was in court on September 4, 2018, at which time a one-day trial was set for April 16, 2019.

Defence counsel’s office is in Kelowna, British Columbia. Another counsel appeared in Chilliwack as agent for defence counsel to set the trial date. [ 14 ] By letter dated November 21, 2018, the Public Prosecution Services of Canada (the “PPSC”) provided to defence counsel disclosure with respect to the disciplinary history of Cpl. Catellier, and another officer (who, at the time, was considered a possible Crown witness), in keeping with the Crown’s disclosure obligations under R. v . McNeil , 2009 SCC 3 . [ 15 ] By letter dated April 15, 2019, the Crown informed defence counsel that it had interviewed Cpl.

Catellier that day (the “April 15 th Meeting”), and that Cpl. Catellier had told the Crown that “[Cpl. Catellier] conducted a PRIME check of Mr. Maclean [ sic ] at the scene. The attached document is what he saw. He told me he took into consideration Mr. McLain’s [ sic ] drug-related history on PRIME in deciding to arrest Mr. McLain [ sic ].” [ 16 ] On April 16, 2019, Mr. MacLean applied for an adjournment of the trial on the basis that the disclosure the Crown provided on April 15, 2019 (the “April 15 Disclosure”) was late.

The adjournment was granted, and a new trial date of August 6, 2019 was set. [ 17 ] By letter dated April 17, 2019, defence counsel notified the Crown that he will be motioning the court for costs as a result of the adjournment caused by the April 15 Disclosure, which he claims he only received on the morning of the trial on April 16, 2019. In this letter, defence counsel also sought further disclosure. He wrote: With regard to disclosure, please provide the following information and documentation.

Was the police car, that Constable Catellier was driving on the date of the stop, equipped with license plate recognition technology? If so, I require all data from that equipment for the period of one half hour before the stop of my client until one half hour after the stop of my client. 1. I require all the computer data that was viewed by Constable Catellier on the date in question, INCLUDING the computer data showing the time the data was accessed.

I realize that constable Catellier says he accessed Prime etc. after the stop, however we need to determine if it was accessed prior to the stop, which would give us ammunition to argue that the reason for the stop was not in fact speeding, but rather a drug investigation. I know this information can be retrieved from the computer. And when I say all the computer data, I mean ALL the computer data. Whether it was on a secondary screen, or CPIC search or whatever. 2. I require the code to determine the meaning of the PRIME readout.

This should come from a manual or other written instruction guide for police to interpret PRIME data. In particular I need to know what the following mean: a. GO532

b. NP c. PERSONAL d. INTELLIGENCE-DRUGS 3. I also need the source of the above notation “INTELLIGENCE-DRUGS” and whether it refers to the vehicle, or the individual. Itappears on the print out to refer to the vehicle. 4. Copies of any notes made by you when you interviewed Constable Catellier. 5. Failure to provide the above documentation and information will result in an application for a Stay of Proceedings. [18] By letter dated July 8, 2019, defence counsel asked the Crown to ensure that the disclosure he requested in his letter of April17, 2019 be provided at least one month before the scheduled trial date.

He also told the Crown that, at the next trial date, he will bemaking an application for costs incurred due to the late disclosure. He indicated that the costs were $5,600 for “the setting aside a newdate for trial, travel time and taxes”. [19] By letter dated July 18, 2019, the Crown provided further disclosure. The letter read: Please find attached the following documents: 1. A copy of the computer logs of Cpl. Catellier for April 27, 201[8] 2. The synopsis for Prime files GO853, GO532 and SC1364 3. BCIP Query for Mr. Maclean [sic] 4. CPIC information Cpl.

Catellier is out of the province, so I asked another officer, Eric Thompson, to provide me with documents.

He has not been able tolocate TKAJ05516276NP. [20] By letter dated July 31, 2019, defence counsel notified the Crown that he would be bringing an application for costs and a stayof proceedings on the scheduled trial date on August 6, 2019. [21] By letter dated July 31, 2019, the Crown told defence counsel that his cost application should be sent to the Department ofJustice, as they would represent the RCMP. [22] By letter dated August 1, 2019, the Crown responded to, and provided explanations for, why some of the information anddisclosure defence counsel was seeking was not relevant or was not available. [23] By letter dated August 2, 2019, the Crown provided further explanations regarding some of the information and documentsdefence counsel was seeking.

THE LAW [24] The parties submitted numerous authorities for my consideration. I have reviewed and considered all of them. However, I willonly refer to the authorities pertinent to my discussion here. Costs: [25] Recently, the British Columbia Supreme Court in R. v. Yang, 2017 BCSC 838, reviewed the law on costs against the Crown,including R. v. Dhillon, 2014 BCCA 480 and R. v. Melrose, 2016 BCCA 292. At paras. 50 to 52, the court in Yang said: [50]. . . In declining to award costs against the Crown, MacKenzie J.A. [in Dhillon] held at para. 56: . . .

The “prevailing convention” of criminal practice is that a criminal defendant, whether successful or unsuccessful, is generally notentitled to costs: R. v. M.(C.A.) . . . at para. 97. Costs against the Crown will only be awarded in exceptional circumstances where theapplicant can show at minimum “a marked and unacceptable departure from the reasonable standards expected of the prosecution”.

TheCrown is “not held to a standard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion”. . .While not without a compensatory element, costs awards in the disclosure context are intended as a disciplinary measure to discourageflagrant and unjustified incidents of non-disclosure. [51] The Court did not award costs against the Crown in Dhillon, finding at para. 62: While the case demonstrates a substantial lack of attention by the Crown, there is no evidence of bad faith or malice.

I conclude the non-disclosure in the circumstances did not amount to a marked and unacceptable departure from the reasonable standards expected of theCrown. [52] More recently in Melrose, the Court discussed M. (C.A.) and Dhillon and other jurisprudence in this area at paras. 30-36: . . . [33] The recent case of R. v. Dhillon, 2014 BCCA 480 , is illustrative of the application of the “marked and unacceptable

departure from the reasonable standards expected of the prosecution” standard. There, the appellant was convicted of sexual assault andassault, served his four-year jail sentence, and was then deported to India. After his deportation, it was discovered that important DNAevidence that existed at the time of trial was never disclosed to the appellant. [34] The Crown conceded that the appellant’s convictions should be set aside as they constituted a “miscarriage of justice” and thisCourt so ordered. However, despite the failure to disclose critical evidence, costs were not awarded.

MacKenzie J.A., speaking for theCourt, applied the “marked and unacceptable departure” standard to the facts before her: [62] I find it unnecessary in this case to address whether the Crown, as a separate entity from the police, bears responsibility for whatthe Crown submits was the investigators’ failure to follow up on the Groves Report. Even assuming the Crown is so responsible, basedon 974649 Ontario Inc., I do not consider this an appropriate case to award costs against the Crown. While the case demonstrates asubstantial lack of attention by the Crown, there is no evidence of bad faith or malice.

I conclude the non-disclosure in the circumstancesdid not amount to a marked and unacceptable departure from the reasonable standards expected of the Crown. This case does not fallwithin one of those exceptional circumstances that warrant an award of costs against the Crown. [Emphasis added.] [35] In R. v. Singh, 2016 ONCA 108 , the Ontario Court of Appeal recently explicated the phrase “marked and unacceptabledeparture”: [33] The phrase “marked departure” is used in many contexts to indicate a deviation from a norm that goes beyond mere negligence:see, for example, failure to provide necessities of life in R. v.

Cox, 2011 ONCA 58 , 271 OAC 77, at paras. 29-31; and carelessuse of a firearm in R. v. Gosset, (SCC), [1993] 3 S.C.R. 76, at pp. 93-94. In R. v.

Beatty, 2008 SCC 5 , [2008] 1S.C.R. 49, the court held, at paras. 33-36, that a mere departure from the standard expected of a reasonably prudent person – sufficientfor civil negligence – is not sufficient for criminal negligence and does not amount to a “marked” departure from the norm: see also R. v.Roy, 2012 SCC 26 , [2012] 2 S.C.R. 60, at paras. 36-38. [34] The Supreme Court of Canada has also addressed the concept of a “marked and substantial departure” in the context of criminalnegligence causing death.

The court held that criminal negligence requires a marked and substantial departure from the conduct of areasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively,gave no thought to that risk: R. v.

A.D.H., 2013 SCC 28 , [2013] 2 S.C.R. 269, at para. 61. [35] While these examples occur in the context of criminal offences, they give background and context to the use of the phrase “markedand unacceptable departure” in 974649 Ontario Inc. . . . [38] . . . [I]nadvertent error is not enough to justify an award of costs for breach of the disclosure obligation and costs awards for suchbreaches will not be “routinely ordered in favour of accused persons who establish Charter violations”: Ciarniello, at para. 36.

A costsaward against the Crown will not be an “appropriate and just remedy” under s. 24(1) of the Charter absent a finding that the Crown’sconduct demonstrated a “marked and unacceptable departure from the reasonable standards expected of the prosecution”, or somethingthat is “rare” or “unique” that "must at least result in something akin to an extreme hardship on the defendant": Ciarniello, at paras31-36; see also Tiffin, at paras. 93-101. [26] Ms. Yang’s appeal from this decision to the British Columbia Court of Appeal was dismissed: see 2017 BCCA 349.

Stay of Proceedings [27] The test for a stay of proceedings is set out in R. v. Babos, 2014 SCC 16 , [2014] 1 S.C.R. 309, at paras. 30 to 32,wherein the Supreme Court of Canada said: [30] A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R.297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated andthe public is deprived of the opportunity to see justice done on the merits.

In many cases, alleged victims of crime are deprived of theirday in court. [31] Nonetheless, this Court has recognized that there are rare occasions — the “clearest of cases” — when a stay of proceedings for anabuse of process will be warranted (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generally fallinto two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where stateconduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor,at para. 73).

The impugned conduct in this case does not implicate the main category.

Rather, it falls squarely within the latter category. [32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements: 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, perpetuatedor aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54); 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 the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decision on the merits” (ibid., at para. 57).

DISCUSSION [ 28 ] The facts upon which Mr. MacLean relies are set out in his Notice of Application dated July 31, 2019. Costs: [ 29 ] Regarding costs, defence counsel submits as follows: (

a) On August 30, 2018, defence counsel requested the Crown to provide copies of all database searches that Cpl. Catellier conducted prior to his decision to search the vehicle Mr. MacLean was driving. (

b) The Crown did not respond to the August 30, 2018 request until 4:02 p.m. on April 15, 2019, the day before the trial – some seven and a half months after the request was made. (

c) Because defence counsel was out of his office when the Crown’s faxed letter arrived at his office at 4:02 p.m. on April 15, 2019, he did not learn of the contents of the Crown’s letter and its attachments until the morning of the trial on April 16, 2019, for which defence counsel and Mr. MacLean had travelled from Kelowna and Nelson, respectively, to attend. (

d) The Crown has not offered any evidence that defence counsel’s request for the database searches was forwarded to the police, or was misplaced by the Crown, but says the police in an interview before the trial, disclosed for the first time that the police relied on the database search in deciding to arrest Mr. MacLean. [ 30 ] Regarding costs, the Crown submits as follows: (

a) The fact that Cpl. Catellier had consulted databases between the detention and the arrest of Mr. MacLean was disclosed in the Report to Crown Counsel (the “RTCC”), which was provided to defence counsel as an attachment to the Crown’s letter dated August 14, 2018. (

b) The only new information the Crown learned on April 15, 2019 was Cpl. Catellier’s reliance on PRIME files in arresting Mr. MacLean, and that information was disclosed to defence counsel on the same day. (

c) An adjournment of the trial scheduled for April 16, 2019 was granted to allow Mr. MacLean to process the April 15 Disclosure, thereby avoiding any suggestion of an unfair trial. (

d) The impact of the new information disclosed on April 15, 2019 is further reduced, to essentially nothing, by the Crown’s concession that the PRIME files Cpl. Catellier viewed did not objectively support Mr. MacLean’s arrest. (

e) Mr.

MacLean has already received a remedy for the late disclosure, being the adjournment of the trial on April 16, 2019. [ 31 ] The defence agrees that the test for awarding costs against the Crown is as set out in Dhillon , where the British Columbia Court of Appeal stated that costs against the Crown will only be awarded in exceptional circumstances where the applicant can show at a minimum “a marked and unacceptable departure from the reasonable standard expected of the prosecution.” [ 32 ] I have set out above some of the authorities that explicate the phrase “marked and unacceptable departure.” The conduct of the Crown that Mr.

MacLean complains of, namely that the Crown did not comply with defence counsel’s disclosure request of August 30, 2018 in a timely fashion and was late with the August 15 Disclosure, by no means can be characterized as a marked and unacceptable departure from the reasonable standard expected of the prosecution. [ 33 ] The circumstances in this case indicate that when the Crown provided its initial disclosure on August 14, 2018, it noted in its letter to defence counsel that the next appearance date was September 4, 2018.

Defence counsel was aware that this date was for the purpose of setting a trial date, as he had arranged for another lawyer to appear in the Chilliwack court as his agent to set the trial date. On September 4, 2018, defence counsel’s agent and the Crown set a one-day trial. This was one business day after defence counsel’s additional disclosure request of August 30, 2018 (since September 3, 2018 was a statutory holiday). [ 34 ] What is strange or troubling is that if defence counsel was of the view that without the additional disclosure he requested of the Crown on August 30, 2018, Mr.

MacLean would not be able to make full answer and defence to the charge before the court, why did he, on September 4, 2018,

schedule the trial? How could he have properly assessed the length of the trial at that time? [ 35 ] While I have no information as to why the Crown did not respond to defence counsel’s letter of August 30, 2018, there is also no information before me that suggests that defence counsel followed up on his August 30, 2018 disclosure request until April 17, 2019, almost seven and a half months later. Even this follow-up appears to have been triggered by the Crown’s April 15 Disclosure and, of course, the adjournment of the trial on April 16, 2019.

Between this period, as I noted above, on November 21, 2018, the PPSC had made disclosures to defence counsel about the disciplinary history of the two possible Crown witnesses.

Even that letter did not trigger any follow-up by defence counsel. [ 36 ] The authorities indicate that defendants must diligently pursue disclosure requests. [ 37 ] From the chronology above, I note that the Crown provided further information and documentation on July 18, 2019, August 1, 2019 and August 2, 2019 in response to defence counsel’s disclosure request. [ 38 ] The Crown also provided the April 15 Disclosure to defence counsel on the same day it received the new information from Cpl. Catellier, within regular business hours.

If defence counsel had been in his office on the afternoon of April 15 or if his staff had notified him of the letter from the Crown on April 15, perhaps the travel costs to attend the trial on April 16 could have been avoided. The Crown could not have provided this disclosure any sooner as it only received it on that day. It is not uncommon for the Crown to meet with Crown witnesses the day before the trial to prepare for the trial, which is what the Crown here submits was the purpose of the April 15 Meeting.

[ 39 ] In all of the circumstances of this case, I am not at all satisfied that the Crown’s conduct amounts to a marked and unacceptable departure from the reasonable standard expected of the Crown, warranting any award of costs against the Crown. [ 40 ] Therefore, Mr. MacLean’s application for costs is dismissed. [ 41 ] I will now turn to the second issue, the judicial stay of proceedings that Mr. MacLean seeks. Stay of Proceedings: [ 42 ] Regarding the stay of proceedings, defence counsel submits as follows: (

a) The Crown has failed to preserve and provide: (

i) the notes of its interview on April 15, 2019 with Cpl. Catellier, the sole Crown witness (the “Crown’s Notes”); and (ii) documentation showing the time Cpl. Catellier conducted the database searches. (

b) Cpl. Catellier did not say in his notes or the RTCC that he relied on database searches to make the decision to arrest and search Mr. MacLean, and the April 15 Disclosure did not say what it was in the database search, aside from “drug related history”, that caused Cpl. Catellier to then believe he had the grounds to arrest, nor did that Disclosure state why Cpl. Catellier failed to mention the database search as contributing to grounds to search. (

c) As a result of the missing disclosure, Mr. MacLean is unable to make full answer and defence to the charge before the court. (

d) Defence counsel put the Crown on notice that failure to comply with defence disclosure requests would result in an application for a stay of proceedings. [ 43 ] Regarding the stay of proceedings, the Crown submits as follows: (

a) The Crown has disclosed to defence counsel the computer data Cpl. Catellier viewed. (

b) The RTCC, which was disclosed to defence counsel on August 14, 2018, indicates when Cpl. Catellier accessed the data – that is between the detention and the arrest of Mr. MacLean. (

c) If Cpl. Catellier had looked up Mr. MacLean on PRIME or any other database prior to stopping him, there would be no reason whatsoever for him to hide that fact. (

d) As soon as the Crown learned from Cpl. Catellier during the April 15 Meeting that he had taken into account Mr. MacLean’s drug- related history on PRIME in deciding to arrest him, the Crown notified defence counsel of this new information on the same day. (

e) The Crown’s Notes are covered by the work product privilege because they were made in the course of trial preparation. The purpose of the April 15 Meeting was trial preparation, and not investigative as Mr. MacLean alleges. (

f) The Crown’s Notes were brief, but the Crown has since lost them. (

g) Even if the Crown’s Notes are not privileged, the Crown has provided to defence counsel a

summary of the new information it received from Cpl. Catellier at the April 15 th Meeting. This is functionally equivalent to a will-say statement. (

h) There is nothing more to disclose. (

i) This is a simple case: Mr. MacLean was speeding, and Cpl. Catellier pulled him over, smelled marihuana, and arrested him. Defence counsel is adding layers of complexity to the case based on conjecture and on an apparently deep-rooted suspicion of the Crown and the police. If defence counsel does not accept the information Crown has provided to him, he is free to cross-examine Cpl. Catellier. (

j) There is no authority that requires independent corroboration of the information provided in the disclosure. (

k) On the whole, the Crown is not clear on what basis Mr. MacLean is seeking a judicial stay of proceedings, as there is no abuse of process on the part of the Crown or the police. There is no risk of prejudice to Mr. MacLean’s right to a fair trial or to the integrity of the justice system. [ 44 ] The parties made further submissions with respect to the sufficiency of the Crown’s disclosure. However, there is no disclosure application before me. [ 45 ] Regarding the stay of proceedings application, Mr.

MacLean’s primary contention, as stated above, is that the Crown failed to preserve and provide the Crown’s Notes and the documentation showing the time Cpl. Catellier conducted the database searches on the date of Mr. MacLean’s arrest. [ 46 ] The Crown has already provided the relevant radio logs, PRIME files synopsis, BCIP query for Mr. MacLean and the CPIC information. It contends that it has nothing more to disclose. [ 47 ] I note that Cpl. Catellier informed the Crown on August 1, 2019, and the Crown notified defence counsel on the same day, that Cpl.

Catellier spoke with the PRIME people and he was informed that the “PRIME people . . . would not be able to get a time stamp for a check that was done almost 2 years ago.” Defence counsel argued that it was not two years ago, but only 15 or 16 months ago. Regardless of when the check was done, the point is, the PRIME system is managed by an entity, separate from the RCMP. Therefore, it is up to Mr. MacLean to bring an application for disclosure of third-party records if he wants any of the PRIME records.

[48] Regarding the Crown’s Notes, I disagree with defence counsel’s argument that since there had been no other interview with Cpl.Catellier, that the April 15 Meeting had to be investigative in nature. I accept the Crown’s submission that the Crown’s Notes were briefand were made in the course of trial preparation. I find that the Crown’s Notes are the Crown’s work product, and, as such, areprivileged. [49] The court in R. v.

Sawchuk, 2019 ABQB 252, at para. 60, said: [60] Crown witness interview notes that arise from the process of trial preparation are privileged and need not be produced: R vDarling, 2017 BCSC 2110 (at paras 7-8). Any different or new information that arises from an interview must be disclosed,for example in the form of a will-say statement, however the notes themselves remain privileged: Darling at para 8; R v McKinnon,2014 BCSC 245 at para 12. . . [50] In Mr. MacLean’s case, I accept that the April 15 Disclosure contained the entirety of the new information the Crown receivedfrom Cpl.

Catellier at the April 15 Meeting. The Crown’s Notes themselves remain privileged and need not be disclosed. [51] Since the parties raised the issue of lost evidence, namely the Crown’s Notes, I will briefly address this issue. [52] Recently, in Sawchuk, the court discussed the law regarding lost or destroyed evidence, at paras. 63 to 66: [63] The Crown and [Calgary Police Service] have a duty to preserve relevant evidence. The Crown also has a duty to explain whathappened when relevant evidence is inadvertently lost or destroyed.

The duty to disclose is breached where evidence is lost or destroyedas a result of unacceptable negligence. The Crown bears the burden of demonstrating that the evidence was not lost due to unacceptablenegligence: R v La, [1997] 2 SCR 680, (SCC) at para 20. [64] To assess negligence, the Court will analyze the circumstances surrounding the loss of the evidence. The main consideration iswhether reasonable steps were taken to preserve the evidence for disclosure.

The perceived relevance of the evidence at the time it waslost must be considered: La at para 21. [65] Evidence which is lost or destroyed due to an unacceptable degree of negligent conduct may also amount to an abuse of process: Laat para 22. Police conduct that violates fundamental principles underlying the community’s sense of decency and fair play is an abuse ofprocess. Deliberate destruction of material by the police for the purpose of defeating the Crown’s disclosure obligation is an abuse ofprocess.

In some cases, an unacceptable degree of negligence may also amount to an abuse of process: La at para 22. [66] Even if evidence is not lost due to unacceptable negligence, the loss of the evidence may nonetheless be so prejudicial to theDefendant’s right to make full answer and defence that a stay may be the appropriate remedy: La at para 24. The Defendant mustestablish actual prejudice to his right to make full answer and defence: La at para 25. Actual prejudice occurs when the Defendant isunable to put forward his defence due to the lost evidence.

Actual prejudice is not simply that the loss of the evidence makes puttingforward the position more difficult: R v JGB (2001), 52 OR (3d) 257, (Ont CA) at para 8. The existence of otherevidence that contains essentially the same information as the lost evidence is an essential consideration: JGB at para 8. [53] The Crown here acknowledges that it has a duty to preserve relevant evidence and to explain what happened when relevantevidence is inadvertently lost. The Crown simply says it has lost the Crown’s Notes, without any explanation.

However, it says itpreserved the evidence for disclosure, and immediately disclosed that evidence to defence counsel. Furthermore, it says, there is norelevance to that disclosure, given the Crown’s concession that the PRIME files that Cpl. Catellier accessed on April 27, 2018 did notobjectively support Mr. MacLean’s arrest. [54] The circumstances presented to me do not indicate that the Crown’s Notes were lost as a result of an unacceptable degree ofnegligence or an abuse of process on the part of the Crown.

I am satisfied that the Crown’s Notes were lost due to the Crown’sinadvertence. [55] As noted at para. 66 in Sawchuk, even if evidence is not lost due to unacceptable negligence, the loss of the evidence maynonetheless be so prejudicial to the Defendant’s right to make full answer and defence that a stay may be the appropriate remedy. TheDefendant must establish actual prejudice to his right to make full answer and defence. [56] Defence counsel argues that the Crown’s Notes are important because there is a discrepancy between what Cpl.

Catellier said inthe RTCC and at the April 15 Meeting, and the Crown’s view of what Cpl. Catellier said to the Crown. He argues that the Crown’sNotes would likely contain evidence of when the decision to arrest was made, what factors were taken into account, and why thosefactors culminated in the decision to arrest. [57] The Crown says that it has already provided disclosure with respect to all of those questions, it has no reason to withhold anyinformation from Mr. MacLean, and any inconsistencies in Cpl. Catellier’s statements contained in the disclosures can be challenged bycross-examining Cpl.

Catellier at trial. I agree. [58] In my view, Mr. MacLean has not established actual prejudice to his right to make full answer and defence as a result of notreceiving the Crown’s Notes. [59] In all of the circumstances of this case, I am not satisfied that Mr. MacLean’s right to a fair trial or the integrity of the justicesystem has been prejudiced. This is not one of those “clearest of cases” where a stay of proceedings is the appropriate remedy. ORDER [60] Mr. MacLean’s application for costs and a judicial stay of proceedings is dismissed.

____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia