2022 QCCA 882, 2022 QCCA 882

Unofficial English Translation of the Judgment of the Court Plamondon c. Procureur général du Québec 2022 QCCA 882 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUÉBEC No.: 200-09-700001-206 (200-17-021802-152) DATE: June 17, 2022 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. DOMINIQUE BÉLANGER, J.A. SOPHIE LAVALLÉE, J.A. YVES PLAMONDON APPELLANT – plaintiff v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Defendant JUDGMENT WARNING : A non-publication and non-broadcast order was issued on November 18, 2019, by the Superior Court, District of Québec. [ 1 ] The appellant Yves Plamondon appeals from a judgment rendered on April 14, 2020, by the Superior Court, per Jean-François Émond J. [1] [ 2 ] This appeal is the last in a series of judicial proceedings spanning over 30 years.

Their starting point was a trial before judge and jury that took place in the spring of 1986, at the end of which the appellant was convicted of the first degree murders of Claude Simard, Denis Ouellet, and Armand Sanschagrin, who were drug dealers who owed him drug debts. [ 3 ] After serving nearly 28 years in prison and being cleared in 2014 of the charges against him in circumstances that will be discussed below, he filed an action against the Crown, alleging that he had been the victim of a miscarriage of justice. [ 4 ] The appellant argued that the miscarriage was the result of the prosecution’s intentional failure to disclose essential evidence to him, despite an order issued by Ducros J. during the trial in 1986.

The order directed the Crown to disclose the prior statements made by the witnesses after each of them testified at trial, to ensure their protection and safety. According to the appellant, this failure impaired his right to make full answer and defence, thereby violating

section 7 of the Canadian Charter of Rights and Freedoms [2] (“ Charter ”) and giving rise to an action for compensatory and punitive damages based on section 24(1) of the Charter . [ 5 ] At the end of a two-week trial, the trial judge dismissed his application, hence the appeal against his judgment. [ 6 ] The appellant states that the trial judge erred in dismissing his application, arguing that he committed several errors of law in applying the relevant case law as well as a palpable and overriding error in assessing the evidence. [ 7 ] We will consider this in more detail, after recounting the factual and procedural background of this judicial saga, which was aptly described by the trial judge. [3] - I- [ 8 ] After being convicted of these three murders, the appellant appealed his convictions, arguing essentially that his trial was marred by irregularities with respect to the joinder of the three counts, the inadequate disclosure of evidence, and the trial judge’s inadequate instructions regarding the tainted witnesses, particularly with respect to the testimony of one of the informers, André “Boule” Desbiens (“André Desbiens”).

Desbiens gave crucial testimony at trial, stating that that he saw the appellant shoot Claude Simard five times in the back with a high caliber weapon, specifically, a .44 Magnum.

[ 9 ] On March 27, 1991, the Court of Appeal dismissed his appeal, [4] concluding that: - Jacques Ducros J. did not err in not granting his application to sever the three counts. He correctly found that the evidence in relation to Simard’s murder was relevant and useful for demonstrating similar facts or the modus operandi used in the three murders; [5] - The Crown’s disclosure of evidence, in particular following the order of Ducros J., was adequate and even exceeded the requirements of the applicable law on the subject.

The Court wrote the following in this regard: [ translation ] The trial judge noted that he could not take these submissions by the Crown lightly, given ... the drug world in which the three murders were allegedly committed ..., but out of concern to avoid harming the accused’s interest and to respect his rights, he specified that, upon receipt of the out-of-court statements at issue, counsel for the accused would have the right to an adjournment every time he considered it necessary to prepare his cross-examination. [6] - The instructions regarding the tainted witnesses, in particular those concerning André Desbiens, the appellant’s accomplice, were adequate and sufficient, in light of the leading case Vetrovec . [7] [ 10 ] The René Dussault J.A., writing for the Court, did not fail to note that these three convictions were rendered essentially on the strength of the testimony of the accomplice and informer André Desbiens: [ translation ] At trial, the Crown called several witnesses, including the main witness André Desbiens.

Desbiens recounted the circumstances surrounding Claude Simard’s execution in Lac-Beauport, stating that he himself was present for this execution. He also testified about a plan concocted by the appellant to execute Denis Ouellet and admitted to hiding the weapon used to kill him. Finally, Desbiens stated that the appellant confided in him about the murder of Armand Sanschagrin. Desbiens’s testimony was crucial.

It was essentially on the strength of this testimony that the appellant was convicted of first degree murder on each of the three counts referred to above. [8] [Emphasis added.] [ 11 ] After this decision of the Court of Appeal, the appellant instituted proceedings, which the trial judge described as follows: [ translation ] [16] Nearly four years after this decision of the Court of Appeal, more precisely, on January 24, 1995, there was a dramatic turn of events. [17] The informer André “Boule” Desbiens, suffering from an incurable illness and on his deathbed, made a stunning statement to the applicant Plamondon’s lawyer.

He stated under oath that he murdered Claude Simard. [18] This statement must be treated with caution. [19] It must be noted that it was made following numerous interventions by the applicant Plamondon’s lawyer, who, following his client’s instructions, had been trying for some time to obtain exculpatory admissions from Desbiens. [20] In any event, a few years later, this statement would give rise to a veritable judicial saga. [21] On May 1, 1998, nearly three years after André “Boule” Desbiens made this statement, the applicant Plamondon filed an application for revocation of judgment ex debito justitiae before the Court of Appeal.

He asked the Court to revoke its judgment rendered on March 27, 1991, to authorize him to raise Desbiens’s exculpatory statement, and to acquit him on the three counts of first degree murder or, in the alternative, to order a new trial. [22] On September 23, 1998, this application was presented to the Court of Appeal. [9] [Citations omitted.] [ 12 ] In a judgment rendered on October 30, 1998, the Court of Appeal, per Robert Pidgeon J.A., dismissed the appellant’s application for revocation of judgment, applying the teachings of Tenorio , [10] according to which the existence of another useful recourse – in that case, an application for the mercy of the Crown to the Minister of Justice of Canada pursuant to

section 690 Cr. C. (now

section 696.1 Cr. C .) – renders the revocation of a judgment impossible. [11] [ 13 ] Although the Court of Appeal’s lack of jurisdiction to hear such an application for revocation sufficed to decide the matter, Pidgeon J.A. continued in his analysis, explaining that, if the Court of Appeal had jurisdiction to rule on that application, it would nevertheless dismiss it, since the exculpatory statement of accomplice and informer André Desbiens did not have sufficient guarantees of reliability. [12] [ 14 ] Nearly one year later, on September 10, 1998, the Appellant applied to the Minister of Justice under what was then

section 690 Cr. C ., asking for the matter to be referred to the Court of Appeal, not only on the strength of Desbiens’s exculpatory statement of January 24, 1995, but also on the basis of information that could allegedly be provided by a former Crown attorney, previously responsible for the file.

[ 15 ] The Minister agreed to conduct an investigation, which lasted 14 years. [ 16 ] On May 30, 2012, the Minister did not ask the Court of Appeal to assess the admissibility of André Desbiens’s exculpatory statement, but instead to rule on two questions related to failures in the disclosure of evidence. In the judgment under appeal, the judge explained the substance of the question as follows: [ translation ] [29] The first question concerns the statements of Jean-Noël Daley and Pierre Gaudreault of August 19 and 20, 1985.

According to the terms of the Reference, these statements were not disclosed to the defence, i.e., to the applicant Plamondon. They contain information that apparently contradicts the information in the statements given by these same two witnesses a month later, in September 1985, which were the statements disclosed to the defence. [30] The statements of August 19 and 20, 1985, by Daley and Gaudreault were made a few days after Simard’s murder.

The conflicting information in these statements compared to the information in the statements from these same two witnesses in September 1985 concerns the coming and goings of the applicant Plamondon at Taverne Desrosiers on the night of August 13, 1985, which was either before or after the murder of Claude Simard, depending on the thesis of each. [31] Whereas in their first statement on August 19 and 20, 1985, Jean-Noël Daley and Pierre Gaudreault said that, on the night of Claude Simard’s murder [on August 13, 1985], the applicant Plamondon left Taverne Desrosiers after 10:30 p.m., in their second statement, in September 1985, both affirmed that the applicant Plamondon left Taverne Desrosiers before 10:00 p.m.

Gaudreault even said that he saw him leave with Claude Simard and André “Boule” Desbiens. [32] Given that Claude Simard was murdered in the Lac-Beauport area around 10:00 p.m., the Minister found that the Court of Appeal should consider these discrepancies. [33] The second question that the Minister referred to the Court of Appeal essentially stems from the first. It concerns the possible perjury the witnesses Jean-Noël Daley and Pierre Gaudreault may have committed during their testimony at the criminal trial, when they said that they had made only one written statement to the police.

The second question also concerned the possible perjury of the other informer witness, the hitman Michael Blass. [13] [ 17 ] Before the Court of Appeal ruled on this reference from the Minister, the parties decided to participate in a facilitation in criminal matters session before an appellate judge. At the end of the session, on November 22, 2013, the Court of Appeal rendered a judgment and decided that the statements of Jean-Noël Daley and Pierre Gaudreault of August 19 and 20, 1985, were new evidence admissible before it.

On the basis of this new evidence, it quashed the three convictions rendered on April 18, 1986, and ordered a new trial on the three counts: [14] [ translation ] [9] The parties requested a facilitation conference in criminal matters without a hearing. They agreed that the fact that the two dated statements were not given to the defence during the trial affected the fairness of the trial.

Indeed, the differences between the statements disclosed and those not disclosed relate to the times when the victim Claude Simard, André Desbiens, and the appellant were at Taverne Desrosiers, the time they left the establishment, and whether or not they left together. At trial, these witnesses confirmed that the appellant left the tavern a little after 9:30 p.m. and that he returned later that evening alone. These facts corroborate André Desbiens’s testimony.

Moreover, in his testimony, Pierre Gaudreault referred several times to his (undated) statement. [10] The parties argue that, to obtain an order for a new trial, the appellant must establish a reasonable possibility that the fact that the respondent did not disclose these two statements affected the overall fairness of the trial. They agree that this was the case, and the Court shares this opinion.

If counsel for the appellant had been aware of these undisclosed statements, he could have used them to weaken the Crown’s evidence by cross-examining the witnesses on the changes made to the second statements and on the circumstances in which they were made.

As the parties propose, the Court concludes that the new evidence of the two statements not disclosed to the defence justifies a new trial. [11] Indeed, considering that some pieces of evidence (the motive, the means of luring the victims [a trap], the victims being killed by being shot in the back, the murders taking place in isolated locations known to the appellant) were argued in relation to the three murders, and that the evidence on the murders of Armand Sanschagrin and Denis Ouellet was also based on the testimony of André Desbiens, the order for a new trial should, according to the parties, apply to the three counts. [12] The Court also shares this point of view.

Considering that the first question is answered in the affirmative, and considering the impact of the lack of disclosure on trial fairness, a new trial should be ordered without it being necessary to rule on the second reference question. [15] [Citation omitted.] [ 18 ] On January 23, 2014, after spending nearly 28 years in custody, the appellant – with the respondent’s consent – was released on bail to await his new trial before the Superior Court, which was scheduled to start on April 28, 2014. On March 13, 2014, the Crown filed two instructions to stay proceedings nolle prosequi under

section 579 Cr. C. concerning the charges for the premeditated murders of Armand Sanschagrin and Denis Ouellet. In addition, the Crown informed the Court that, given the 30 years elapsed since the murder of Claude Simard, the exhibits filed at trial had been destroyed and key witnesses, such as André Desbiens, were deceased. The Crown was therefore no longer able to present proof establishing the commission of this murder beyond a reasonable doubt. In the circumstances, the appellant was acquitted on the charge of the murder of Claude Simard. [ 19 ] Effectively, the two nolle prosequi and the appellant’s acquittal for the murder of Claude Simard ended the criminal proceedings against him.

[ 20 ] However, as the trial judge explained, they did not end the dispute between the appellant and the Crown and the AGQ. On the contrary, they are the cornerstones of his action in damages against the Crown, based on sections 7 and 24(1) of the Charter . [16] -II- [ 21 ] At the end of a two-week trial, the judge concluded that the evidence on a balance of probabilities established that: 1. [ translation ] “the prosecution was indeed in possession of the statements at issue [i.e., those of Jean-Noël Daley, Pierre Gaudreault, Pierrette Hardy, Paul Godbout, René Lemelin, François Gaudreault and Jean-Pierre Boudreault [in the latter case, the

summary of his interview with the detectives] ...”. [17] 2. The prior statements of Paul Godbout and René Lemelin were disclosed to the appellant’s counsel personally, [18] thus concluding the analysis with respect to those statements. [19] 3. The prior statements of two persons who did not testify at trial, Pierrette Hardy and Claude Gaudreault, did not need to be disclosed to the appellant because they were not covered by the order of Jacques Ducros J. governing the disclosure of these statements at trial. [20] In addition, the prosecution considered that Ms.

Hardy’s statement was not useful to the debate and that Claude Gaudreault’s statement was not favourable to the appellant. [21] 4.

The prior statements of Jean-Noël Daley and Pierre Gaudreault were not disclosed, but there was no intentional failure in this regard. [22] Émond J. was hesitant to characterize the cause of the failure: [ translation ] “the failure to disclose them resulted from an oversight, a misinterpretation of the evidence, or perfectible evidence management in a file that did not lack evidence”. [23] Perhaps the cause of the failure was the [ translation ] “unusual” method use by the police to collect these statements. [24] 5.

In any event, none of the undisclosed information would have had any impact on the appellant’s conviction in 1986. [25] [ 22 ] Consequently, the judge dismissed the appellant’s action against the Crown. -III- [ 23 ] The appellant stated that the lawyer who represented the prosecution during his trial in 1986, Mr. de la Sablonnière (“Crown counsel”), intentionally failed to disclose the two witnesses’ prior statements at trial, a

summary of an interview of another witness, and the prior statements of four other individuals who did not testify at trial. [ 24 ] Accordingly, the appellant’s action falls within the framework of the principles established in Vancouver (City) v. Ward , [26] which established the test for determining whether damages is an appropriate remedy for a breach of Charter rights in the circumstances of a particular case.

The first step is to establish a Charter breach, the wrong on which the claim for damages as a public law remedy is based. [27] [ 25 ] The conditions for the existence of the fault alleged in this case are governed by Henry v.

British Columbia (Attorney General) , [28] (“ Henry ”), which sets out the test applicable to an action in damages based on the Charter due to a breach of the Crown’s duty to disclose. [ 26 ] Since the prosecutor’s decision to disclose relevant information to the defence is not discretionary but constitutes a constitutional obligation, [29] the Supreme Court explained in Henry that the analysis must focus on (1) the prosecutor’s intent and (2) his or her actual or imputed knowledge. [30] [ 27 ] The burden of proof on the person claiming such a breach is set out in four cumulative steps: [85] At trial, a claimant would have to convince the fact finder on a balance of probabilities that (1) the prosecutor intentionally withheld information; (2) the prosecutor knew or ought reasonably to have known that the information was material to the defence and that the failure to disclose would likely impinge on his or her ability to make full answer and defence; (3) withholding the information violated his or her Charter rights; and (4) he or she suffered harm as a result. [31] [ 28 ] At the first step , the burden of establishing the prosecutor’s intention is not particularly high.

If the prosecutor was in fact in possession of information but did not communicate it, the intention not to disclose it may be imputed.

However, the Crown may always attempt to rebut this presumption by presenting evidence that the withholding was not intentional. [32] [ 29 ] The second step requires that the claimant establish the materiality of the information to the defence by proving that (1) the prosecution had knowledge of the materiality of the information, (2) that the prosecution knew the consequences of withholding it, and (3) that the failure to disclose impinged on the claimant’s ability to make full answer and defence.

Knowledge of the materiality of the information and the consequences of a failure to disclose can be imputed based on what a reasonable prosecutor would know in the circumstances. [33] However, to assess the prosecutor’s imputed knowledge, the threshold is higher than the objective “reasonableness” or “marked departure” standard applicable in extra-contractual liability, as Moldaver J. explains in Henry : [88] ... I stress, however, that by incorporating a reasonableness aspect into the knowledge element, I am not endorsing a negligence- based standard as the applicable liability threshold.

Taken together, the two elements I have described — intent, and actual or imputed knowledge — rise above a purely objective “reasonableness” ... standard... [34] [ 30 ] At the third step , it must be determined whether the prosecutor’s intentional withholding violated a Charter -protected right. [35] [ 31 ] Last, the fourth step requires proof of causation between the withholding of the information and the harm suffered. The claimant does not have to prove his or her factual innocence, but must instead prove, on a balance of probabilities, that the withheld

evidence would have led to a verdict of not guilty or that the charges would have been dismissed or withdrawn at an earlier stage. [36] In other words, that the evidence was decisive and would have tipped the scale in the other direction. To determine whether the information was decisive, it is appropriate to ask whether the appellant would have suffered this harm “but for” the prosecutor’s wrongful non- disclosure of the information. [37] *** [ 32 ] The appellant does not contest the relevance of Henry for the purposes of the debate. Rather, he challenges the trial judge’s

interpretation and application of it, stating that he erred in law: - in minimizing the scope of the prosecution’s duty to disclose evidence in 1986; - in analyzing the criteria in Henry , primarily by concluding that the first criterion required evidence of malice on the part of the prosecution and that the defence could, in this regard, present rebuttal evidence even in cases of a breach of the duty to disclose evidence as flagrant as the one in this case. [ 33 ] The appellant argued that the trial judge also committed a palpable and overriding error: - in concluding that it was more likely than not that Crown counsel had given the statements of Paul Godbout and René Lemelin to the appellant; - in concluding that the undisclosed information would not have had an impact on the appellant’s conviction. -IV- [ 34 ] For the reasons that follow, the Court is of the opinion that the trial judge correctly applied the teachings of the Supreme Court in his analysis and that his judgment is free of errors of fact or law. *** [ 35 ] At the outset, it should be noted that the judge’s first conclusion is not challenged: the prosecution did indeed possess the statements of Jean-Noël Daley, Pierre Gaudreault, Pierrette Hardy, Paul Godbout, René Lemelin and François Gaudreault, as well as the

summary of Jean-Pierre Boudreault’s interview with the detectives. [38] [ 36 ] This being the case, each ground of appeal will now be examined on its merits. A. Did the judge err in law with respect to the scope of the prosecution’s duty to disclose at the time of the trial? [ 37 ] The appellant asserts that the judge erred in analyzing the scope of the Crown’s duty to disclose evidence at the time of the trial in 1986. [ 38 ] Here are the reasons of the judgment in this regard: [ translation ] [77] Indeed, the applicable law on disclosure of evidence in criminal matters was, at that time, unclear.

As Sopinka J. stated in the leading case of R. v. Stinchcombe , rendered in 1991, disclosure of evidence was made on a voluntary basis at the time, according to the goodwill of the prosecution. The extent of disclosure varied from province to province, from jurisdiction to jurisdiction and from prosecutor to prosecutor. The element of surprise for the defence still existed. [78] In any event, as interesting as this question may be, at least to the Court, it appears to be theoretical in this case. Indeed, during the hearing, the AGQ conceded that this element was not in dispute.

The AGQ recognized that if the Court concludes that material information was intentionally withheld within the meaning of Henry , it must be found that it was withheld in violation of the applicant Plamondon’s right to make full answer and defence. [39] [ 39 ] The appellant states that, in Stinchcombe , [40] the Supreme Court clarified common law principles well established in the substantive law, [41] such that, at the time of the trial in 1986, a duty to disclose evidence of that magnitude already existed.

He added that, as early as 1955, in Boucher , [42] the Supreme Court had already specified that the Crown’s role was to present credible evidence and that the Crown had to act fairly. According to the appellant, the subsequent case law also demonstrates that the Crown had a duty to disclose all exculpatory evidence. The appellant also argues that, in McNeil , [43] the Supreme Court stated that the Crown cannot hide behind the police department’s failure to disclose evidence to the Crown to explain itself. These two entities are considered as one for evidence disclosure purposes.

Since this duty is continuous, and the investigation of the Minister of Justice of Canada revealed the existence of prior statements by Jean-Noël Daley and Pierre Gaudreault from August 19 and 20, 1985, the Crown was required to disclose them to the appellant, just as the Crown had to disclose to him the other statements and interview notes at issue. [ 40 ] The respondent counters that since it has admitted that the statements of Jean-Noël Daley and Pierre Gaudreault should have been disclosed to the appellant in 1986, this ground is theoretical and moot.

Ultimately, according to the respondent, the judge did not actually rule on the nature and scope of the duty to disclose that existed at the time. The respondent argues that the Crown’s admission sufficed to satisfy the first criterion in Henry , which explains why the trial judge continued the analysis based on the other criteria in Henry . [ 41 ] Although the issue regarding the statements of Jean-Noël Daley and Pierre Gaudreault is theoretical since the respondent admitted that they should have been disclosed to the appellant in 1986, the issue regarding the statements of Pierrette Hardy and François

Gaudreault and the

summary of Jean-Pierre Boudreault’s interview is not. If the duty to disclose at the time was as broad as the appellantclaims, the evidence should have been disclosed to him. In other words, if the Crown’s duty to disclose evidence extended beyond whatDucros J.’s order prescribed for the disclosure of evidence, these three pieces of evidence possibly should have been disclosed. [42] Regarding the statements of Paul Godbout and René Lemelin, the appellant contests the judge’s factual finding that the Crowndisclosed them to his counsel Mtre Léo-René Maranda.

The issue might not have been theoretical with respect to these pieces of evidence as well, but, as will bediscussed below, the Court is of the opinion that the trial judge did not err in concluding that they had in fact been disclosed to theappellant. [43] The judge described the prosecutor’s duty to disclose evidence at the time of the trial as follows: [translation] [210] When the murder charges were laid against the applicant Plamondon and at the time of his trial, the rules governing theprosecution’s duty to disclose evidence were very different from those that became applicable a few years later, starting in 1991,following the leading Supreme Court judgment in Stinchcombe.

Indeed, the prosecution’s obligations were minimal at the time. [211] In principle, only evidence favourable to the accused had to be disclosed and, moreover, the prosecution had broad discretion todecide this question.

To paraphrase Sopinka J. in Stinchcombe, the rules governing the disclosure of evidence were practically non-existent: [translation] “because disclosure was made on a voluntary basis, the extent of disclosure varied from province to province, fromjurisdiction to jurisdiction and from prosecutor to prosecutor.” [212] Despite the lack of rules, the applicant Plamondon asked the judge who presided at his trial [Ducros J.] to order the prosecutionto provide him with the statements of the witnesses the Crown intended to call to testify. [213] Ducros J. granted this request and especially since the prosecution did not object, the applicant Plamondon did not have apreliminary inquiry because of the preferred indictments ... [214] With the prosecution’s consent, Ducros J. ordered that, after the testimony in chief of each of the prosecution’s witness, their prior statements be given to the defence before their cross-examination ...[44] [Citations omitted.] [44] This analysis is flawless. [45] In Stinchcombe, the Supreme Court stated that the status quo was unjustifiable because the disclosure of evidence had until then been made on a “voluntary basis”:[45] The circumstances which give rise to this case are testimony to the fact that the law with respect to the duty of the Crown to disclose isnot settled.

A number of cases have addressed some aspects of the subject. See, for example, Cunliffe v. Law Society of British Columbia(1984), (BC CA), 40 C.R. (3d) 67 (B.C.C.A.); Savion v. The Queen (1980), (ON CA), 13 C.R. (3d)259 (Ont. C.A.); R. v. Bourget (1987), (SK CA), 56 C.R. (3d) 97 (Sask. C.A.). No case in this Court has made acomprehensive examination of the subject.

The Law Reform Commission of Canada, in a 1974 working paper titled CriminalProcedure: Discovery (the “1974 Working Paper”) and a 1984 report titled Disclosure by the Prosecution (the “1984 Report”),recommended comprehensive schemes regulating disclosure by the Crown but no legislative action has been taken implementing theproposals. Apart from the limited legislative response contained in s. 603 of the Criminal Code, R.S.C., 1985, c.

C-46, enacted in the1953-54 overhaul of the Code (which itself condensed pre-existing provisions), legislators have been content to leave the development ofthe law in this area to the courts. [46] Authors Martin Vauclair and Tristan Desjardins explain that [translation] “Stinchcombe transformed a voluntary and imperfect practice of disclosing evidence into a mandatory one” and “in the past, this procedure was not mandatory for the Crown”.[46] Before R. v.Stinchcombe, the disclosure of evidence was subject to the discretion of the judge, who could render any necessary orders when an accused requested it.

The Crown had to comply with those orders but had no other formal duty to disclose evidence.[47] Commenting on the Court of Appeal for Ontario’s judgment in Savion,[48] authors Béliveau and Labrèche summarized the applicable law at the time: [translation] A Court may also, using its inherent jurisdiction, order that a copy of witness statements and of a tape recording of a conversation mentioned during testimony be given to the accused.[49] [47] It must be recalled that, in this case, with the Crown’s consent, Ducros J. ordered the Crown to disclose all prior statements made by the witnesses called to testify following their testimony at trial and before their cross-examination.[50] The judge was therefore correctin finding that the order went beyond the requirements of the case law of the time. [translation] [212] Despite the lack of rules, the applicant Plamondon asked the judge who presided at his trial [Ducros J.] to order the prosecutionto provide him with the statements of the witnesses the Crown intended to call to testify. [213] Ducros J. granted this request and especially since the prosecution did not object, the applicant Plamondon did not have apreliminary inquiry because of the preferred indictments ...

[ 48 ] Consequently, in this case, in applying the Henry test, the judge had to rule on whether the Crown had complied with this order, which he then did, as will now be discussed. B. Did the judge err in law in his application of the Henry test? [ 49 ] At trial, not only did the appellant raise the intentional withholding of Jean-Noël Daley and Pierre Gaudreault statements of August 19 and 20, 1985, but he also faulted the prosecution for intentionally not disclosing other statements. The first of these statements was from Jean-Pierre Boudreault, Claude Simard’s partner in the sale of narcotics, which was in the form of a

summary of an interview with the police since Jean-Pierre Boudreault had refused to sign a written statement. The second was from Pierrette Hardy, Claude Simard’s friend, who had stated that she saw Simard in a white vehicle in the hours before his murder.

The other statements were from Paul Godbout, René Lemelin, and François Gaudreault, three individuals who were at Taverne Desrosiers on the evening of Claude Simard’s murder. [51] [ 50 ] The appellant argues that the judge erred in concluding that the information contained in these other statements did not have to be disclosed to him under the prosecution’s constitutional duty to disclose at the time. He also argues that the judge was mistaken in finding that they were not material.

According to the appellant, had they been disclosed to him, these statements would have allowed him to challenge the credibility of witness and informer André Desbiens and to establish an alibi defence. [ 51 ] In sum, he argues that “but for” the intentional withholding of all the abovementioned statements, he would have been acquitted of the three premeditated murder charges and would not have suffered the serious harm of serving 28 years in prison. [ 52 ] The judge’s conclusions regarding these statements will be treated separately. i.

The prior statements of Paul Godbout and René Lemelin [ 53 ] The judge found that the prior statements of Paul Godbout and René Lemelin were disclosed to the appellant’s counsel personally. [52] [ 54 ] The appellant challenges this factual finding without establishing the palpable and overriding error that allegedly mars it.

Yet, this error should be obvious, like [ translation ] “a beam in the eye”, [53] and certainly cannot be the result of speculation based on conjecture. [ 55 ] In stating that it is more likely that Paul Godbout and René Lemelin’s statements were never disclosed to the appellant because they did not testify at trial, the appellant asks us to speculate, which does not meet this Court’s threshold for intervention.

Indeed, after listening at length to the attorney who acted for the prosecution during the trial, the trial judge concluded that he had given detailed testimony on the incident in question and that, despite the lengthy cross-examination he underwent, his testimony was [ translation ] “credible and in no way contradicted”. [54] The Court certainly cannot set aside this finding of fact on the basis of conjecture. ii.

The prior statements of Pierrette Hardy and Claude Gaudreault [ 56 ] The judge also found that the statements of Pierrette Hardy and Claude Gaudreault, two individuals who did not testify at trial, did not need to be disclosed to the appellant because they were not covered by Ducros J.’s order governing the disclosure of evidence at trial. [55] In addition, the prosecution was of the view that they were not favourable to the appellant: [56] [ translation ] [220] Regarding the statements given by the individuals who were not called to testify, most were not given to the applicant Plamondon for the simple and good reason that they were not covered by Ducros J.’s order. [221] In addition, the prosecution was of the view that these statements were not favourable to the defence. [ 57 ] Given the applicable test for finding an [ translation ] “intentional failure” to disclose information when assessing the first criterion in Henry , this conclusion was well founded.

At the time, the duty to disclose did not clearly extend to these statements and the decision not to disclose them was reasonable. iii. The report on Jean-Pierre Boudreault’s interview with the detectives [ 58 ] The trial judge wrote the following concerning the failure to disclose the report on Jean-Pierre Boudreault’s interview with the detectives: [ translation ] [242] With respect to the

summary of Jean-Pierre Boudreault’s interview with the police, Mr. de la Sablonnière explained that his decision not to give it to the defence was also fully informed. He decided that the

summary did not constitute a statement within the meaning of the Ducros J. judgment. He considered that such a

summary was not a statement because it could not be used in evidence to contradict the witness. In other words, this

summary was not useful. [243] This explanation of the reasons justifying the failure to disclose this interview

summary is not convincing. [244] However, as will be discussed below, disclosure of the interview

summary would not, on a balance of probabilities, have had any impact on the verdicts. [57] [ 59 ] Although the judge did not state in paragraph 243 the reasons why he was not convinced by the explanations given by Crown counsel during his testimony, this is of little import with respect to the results of his analysis. Indeed, in paragraph 244, he concluded

that, on a balance of probabilities, disclosure of the interview

summary would not have had an impact on the verdicts. [58] In addition, the analysis he then conducts of this impact, the conclusion of which he stated at paragraph 302, is convincing: [ translation ] [302] It does not appear possible to conclude that a reasonable prosecutor placed in the same circumstances and same period (i.e., in 1985), would have found that the information contained in the statements of Pierrette Hardy and François Gaudreault, as well as in the

summary of Jean-Pierre Boudreault’s interview with the police, was material and that the failure to disclose it could impinge on the applicant Plamondon’s ability to make full answer and defence. [59] [ 60 ] Thus, like the statements of Pierrette Hardy and François Gaudreault, the

summary of the detectives’ interview with Jean-Pierre Boudreault was not favourable to the defence. The necessary conclusion is that the failure to disclose this report therefore did not violate the appellant’s right to make full answer and defence. The appellant does not, in the evidence, identify any error the judge committed in this regard and that would allow his conclusion to be overturned. iv.

The prior statements of Jean-Noël Daley and Pierre Gaudreault [ 61 ] The judge concluded that the prior statements of Jean-Noël Daley and Pierre Gaudreault had not been disclosed, but that this failure was not intentional: [60] [ translation ] [246] Mr. de la Sablonnière acknowledged at the outset that these first two statements should have been given to the applicant Plamondon, not only based on the Ducros J. judgment, but also due to the prosecutor’s duty at the time to disclose favourable information to the accused.

He added that he was also required to disclose these two statements because a lawyer is duty-bound not to mislead the Court. [247] It should be recalled here that Jean-Noël Daley and Pierre Gaudreault testified at trial that they signed only one statement. [248] This was not false per se , since Jean-Noël Daley and Pierre Gaudreault did indeed sign only one statement. [249] However, the question should have been clarified. [250] In any event, Mr. de la Sablonnière's testimony turned out to be crucial on the issue of why the statements of Jean-Noël Daley and Pierre Gaudreault of August 19 and 20, 1985, were not disclosed to the defence. [251] Here are his explanations. [252] First, Mr. de la Sablonnière acknowledged that these statements were most likely sent to him by the detectives. [253] However, Mr. de la Sablonnière explained that if these statements were not disclosed to the defence [to the applicant Plamondon], it was because he himself was unaware of their existence.

On this point, he was categorical.

Had he seen the statements of Jean-Noël Daley and Pierre Gaudreault of August 19 and 20, 1985, or had he known of their existence, he would have given them to the defence promptly or taken steps to find them and disclose them. [254] He stated that it would have been completely suicidal of him to not do so, in every respect, including with regard to safeguarding the judicial process, the fairness of the trial, its outcome, and his professional integrity. [255] He stated that he never would have wanted to mislead the judge, the jurors, or the applicant Plamondon. [256] Mr. de la Sablonnière stated that he first became aware of these two statements when the lawyers responsible for conducting the Minister of Justice’s investigation contacted him. [257] When the two statements were brought to his attention, he could not understand why Daley and Pierre Gaudreault had stated at trial that they had signed only one statement. [258] In short, the withholding of the statements of Jean-Noël Daley and Pierre Gaudreault of August 19 and 20, 1985, was the result of either an error in the management of the evidence he had been given or his carelessness. [259] In any event, it cannot have been an intentional withholding.

It would have never crossed his mind to do such a thing. [260] Cross-examined at length on this issue, his version remained unchanged. He maintained and repeated that he never saw these statements. [261] In response to questions by the applicant Plamondon’s counsel on the first progress report prepared by detective Alain, which cites in full the statements of Jean-Noël Daley and Pierre Gaudreault, Mr. de la Sablonnière firmly maintained his position. He explained that he did not use the police reports to prepare.

He used only the witnesses’ statements and, for reasons he cannot explain, he was not aware of the statements of Daley and Pierre Gaudreault of August 19 and 20, 1985. [262] He reiterated over and over that, had he seen the statements of Jean-Noël Daley and Pierre Gaudreault of August 19 and 20, 1985, he would have given them to the prosecution promptly, with their September 1985 statements. [263] At the end of his testimony, the Court returned to this issue. Mr. de la Sablonnière’s version remained invariable. He maintained that he never intended not to disclose them.

He explained that had these statements in fact been brought to his attention, which cannot be ruled out, the failure to disclose them to the defence can only be explained by an unintentional oversight, given Ducros J.’s order and his

duties as a Crown attorney. [61] [ 62 ] The appellant argues that he erred on this issue central to the dispute in requiring proof of malice on the part of the prosecution in the following paragraphs of his judgment: [ translation ] [273] In light of the testimony of Mr. de la Sablonnière, it is improbable that the prosecution or even the police intentionally failed to disclose these two statements. [274] To conclude that they did, the Court would have had to accept that the police or the prosecution wanted to mislead the applicant Plamondon, the jurors, and Ducros J. [62] [Emphasis added] [ 63 ] The appellant also presented a fairly bold submission that the judge erred in allowing the Crown to present rebuttal evidence to establish the involuntary nature of the withholding.

He stated that when the violation of the right to make full answer and defence is serious, as in this case, the prosecution cannot submit rebuttal evidence to show that withholding of evidence was not intentional. [ 64 ] In Henry , the Supreme Court noted that if the evidence reveals that the prosecution was in possession of information and did not disclose it to the defence, the judge may infer that this information was intentionally withheld.

However, the judge is not required to make this inference if the prosecution presents rebuttal evidence to show that the withholding of information resulted from an unintentional failure, for example, from error or oversight. [63] On the subject of the prosecution’s ability to present such evidence, Moldaver J. makes no distinction based on the seriousness of the violation of the right to obtain disclosure.

In other words, regardless of the seriousness of the violation, the Crown may present evidence of the unintentional nature of the failure to disclose: [86] Nothing in the formulation of this test alters the methods by which finders of fact assess intent. The common sense inference that individuals intend the natural and probable consequences of their actions applies: R. v. Walle , 2012 SCC 41 , [2012] 2 S.C.R. 438, at paras. 58-63 , citing R. v. Daley , 2007 SCC 53 , [2007] 3 S.C.R. 523. As a result, the evidentiary burden on the claimant is not a high one.

To demonstrate that the Crown intentionally withheld information, a claimant need only prove that prosecutors were actually in possession of the information and failed to disclose it. Alternatively, a claimant could show that prosecutors were put on notice of the existence of the information and failed to obtain possession of it, in contravention of their disclosure obligations: see R. v. McNeil , 2009 SCC 3 , [2009] 1 S.C.R. 66, at para. 49 . In both of these circumstances, the intention to withhold may be inferred. This inference is available to the finder of fact, but is not mandatory.

Furthermore, it is always open to the Crown to lead rebuttal evidence to show that the withholding was not intentional . [64] [Emphasis added.] [ 65 ] The appellant is therefore wrong to claim that the trial judge should not have allowed or considered the respondent’s rebuttal evidence. In light of the evidence as a whole, including this rebuttal evidence, the judge concluded that the withholding was not intentional.

The appellant has not established a palpable and overriding vitiating this conclusion. [ 66 ] He states that the judge was mistaken in requiring the malicious withholding of evidence by the prosecution, as paragraph 274 of the judgment reveals, where he uses the words [ translation ] “intended to mislead”. [ 67 ] Upon analysis, it instead appears that the judge applied the correct threshold and that in paragraph 274, he merely restated the appellant’s argument while simply explaining that, were the Court to agree with him, it would have to find malice on the part of the prosecution.

Read in context – in particular, with paragraphs 272 and 273 of the judgment – the words [ translation ] “intended to mislead” do not support the conclusion that the judge erred. Indeed, regarding the judge’s finding of fact that the withholding was not intentional, which is based on the correct threshold set out in Henry and is well reasoned in paragraphs 267 to 273 and 275 to 294 of the judgment, the appellant has not established a palpable and overriding error that would justify the intervention of this Court. v.

The impact of all the undisclosed evidence on the convictions [ 68 ] Finally, the judge concluded that the undisclosed information would not have had an impact on the appellant’s convictions in 1986: [ translation ] [306] Nonetheless, the Court considers it necessary to make a few remarks on the causal connection between the intentionally withheld statements and the harm that the applicant Plamondon claims to have suffered. [307] In his theory of the case, the applicant Plamondon assigns considerable weight to the nolle prosequi orders concerning the charges of the premeditated murder of Armand Sanschagrin and Denis Ouellet, as well as the acquittal on the charge of the premeditated murder of Claude Simard.

In his opinion, these orders to stay proceedings nolle prosequi and the acquittal establish that “but for” the withholding of these statements, he would have been acquitted on the three premeditated murder charges. [308] He bases his position on the examples given by Moldaver J. to explain how the causal connection can be established [in paragraph 96 of Henry , Moldaver J. provided an example where the wrongful non-disclosure of information leads to a conviction at trial that is later overturned on appeal and ultimately replaced by an acquittal — either entered directly on appeal or following a new trial]. [309] In the Court’s view, some nuances are in order. [310] A complete review of the evidence may sometimes be required to determine whether the information that was not disclosed

during the first trial is the “but for” element explaining the acquittal ordered at the second trial. [311] For example, if a conviction handed down at the end of a first trial is overturned by the Court of Appeal because material information was not disclosed to the defence and a jury enters an acquittal at the end of a second trial, this acquittal cannot on its own constitute the “but for” element establishing that the undisclosed information explains the conviction handed down at the first trial and the damage that arose from it. [312] The reason for this is very simple.

Juries do not provide reasons for or explain their verdicts. [313] In such a case, a review of the evidence may be necessary to determine whether the withholding of information explains the first conviction as a “but for” element. [314] This is, moreover, the approach that was adopted by the Supreme Court of British Columbia in Henry .

This approach was approved by the Court of Appeal for British Columbia. [315] This appears even more true in the case at bar. [316] In light of the evidence, it is certainly not possible to conclude that the withholding of information of which the applicant Plamondon complains explains the nolle prosequi orders in connection with the charges for the murder of Sanschagrin and Ouellet and the acquittal that was entered on the charge of the murder of Claude Simard.

It will suffice to note that the nolle prosequi orders and the acquittal were not filed or entered, as applicable, at the end of a new trial. [317] On the contrary, the uncontradicted evidence establishes that a new criminal trial was never held because the prosecution was unable to present evidence due to the time elapsed, not to mention the fact that the applicant had already served part of his sentence. [318] In this context, it is far from clear that the withholding of information of which the applicant Plamondon complains can explain why the AGQ decided not to undertake a new trial.

This is not sufficient to establish “but for” causation. [319] All this to say that the AGQ is justified in minimizing, even in denying, that the withholding of information alleged by the applicant Plamondon was the “but for” element explaining the acquittal and the nolle prosequi orders. [320] That said, even were it to consider the statements of Jean-Noël Daley and Pierre Gaudreault of August 19 and 20, 1985, those of Pierrette Hardy and François Gaudreault, or finally the transcript of Jean-Pierre Boudreault’s interview, the Court would not be able to conclude that these statements, considered together or individually, would have led, on a balance of probabilities, to acquittals for the murders of Simard, Sanschagrin, and Ouellet. [321] These statements would not have been sufficient to cast doubt on the probative value of the testimonies of informers André “Boule” Desbiens and Michael Blass. [322] Certainly, informers Desbiens and Blass were tainted witnesses.

However, the information that they provided was corroborated and confirmed on several levels. [323] Moreover, and this should be emphasized, the Minister did not rely on André “Boule” Desbiens’s retraction to justify the Reference to the Court of Appeal. [65] [Citations omitted.] [ 69 ] The assessment of the impact of these statements essentially raises the issue of causation between the alleged fault, namely, the failure to communicate information, and the harm, which materialized in this case through the appellant’s imprisonment.

In other words, it is a matter of deciding whether the harm would have resulted “but for” the fault. [66] [ 70 ] Since this is a highly factual issue, the trial judge’s assessment of causation warrants the utmost deference. This Court may therefore intervene in this respect only in the event of a palpable and overriding error, which must be clearly identified by the appellant.

It is not a matter retrying the case or performing a broad assessment of the evidence. [ 71 ] In addition, under the Henry test, the appellant had the burden of proving on a balance of probabilities that all the statements and the interview report that were not disclosed to him could have led to an acquittal on the three murder charges. [67] [ 72 ] Yet, the appellant, in a laconic six-line paragraph in his appeal brief, limits himself to vaguely and very generally alleging that the judge committed a palpable and overriding error on this subject.

Since he was not more convincing during the hearing, he has not discharged his burden, and this ground must be rejected. *** [ 73 ] Ultimately, the trial judge concluded that (1) the statements of René Lemelin and Paul Godbout were indeed disclosed to the appellant in 1986, (2) the statements of Jean-Noël Daley and of Pierre Gaudreault, which were not disclosed when they should have been, were not withheld intentionally or deliberately, but due to carelessness, and (3) a reasonable prosecutor in 1986, considering the relevant state of the law at the time, would not have disclosed the statements of Pierrette Hardy and François Gaudreault or the notes from Jean-Pierre Boudreault’s interview.

The judge also concluded that none of these statements, individually or in conjunction with the others, were of a nature to influence the verdicts rendered in 1986. The appellant did not demonstrate how, with respect to any of these conclusions, the judge made a reviewable error in his application of the Henry test and his assessment of the evidence. FOR THESE REASONS, THE COURT:

[ 74 ] DISMISSES the appeal, with legal costs. MARIE-FRANCE BICH, J.A. DOMINIQUE BÉLANGER, J.A. SOPHIE LAVALLÉE, J.A. Mtre Michel Pelletier Mtre Morgane Laloum and Mtre Daniel Rock ADVOCATIS For the appellant Mtre Patricia Blair Mtre Alexandre Ouellet LAVOIE, ROUSSEAU (JUSTICE-QUÉBEC) For the respondent Date of hearing: May 9, 2022