R. v. Bagchi, 2020 BCPC 192

Citation: R. v. Bagchi 2020 BCPC 192 Date: 20200305 File No: 80268-2 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHOWRAV THEOPHIL BAGCHI RULING ON APPLICATION OF THE HONOURABLE JUDGE D.SUDEYKO Counsel for the Crown: D. Melynk Counsel for the Defendant: J. Allingham Place of Hearing: New Westminster , B.C.

Dates of Hearing: November 20, 21, 2019 and January 21 and 28, 2020 Date of Ruling: March 5, 2020 INTRODUCTION [ 1 ] This is an application, pursuant to s. 7 and 24(1) of the Charter of Rights (the “ Charter ”) to exclude the evidence of Constable Sutton, the investigating police officer in a drug investigation following a traffic stop. The investigation involved a detention and arrest, a subsequent search, including a strip search of the accused back at the station.

[2] The application is based on the failure of the Crown, in this case the police, to provide timely disclosure relevant to the case.The breach under s. 7 with respect to trial fairness is admitted by the Crown. The Defence says the accused has been prejudiced by thisbreach, which requires the exclusion of Constable Sutton’s evidence, and no less intrusive remedy can be fashioned to safeguard thefairness of the trial and maintain the integrity of the justice system.

The Crown says any prejudice can be remedied through anadjournment and disclosure that has now been provided. [3] That is the issue in this application: Has the accused been so significantly prejudiced that there is no less intrusive remedyavailable in these circumstances that will safeguard the fairness of the trial and maintain the integrity of the justice system? BACKGROUND [4] It is the manner in which this failure to provide disclosure both occurred and came to light that is unusual.

Counsel for thedefence, who had received what he believed to be full disclosure, had already provided notice of an application pursuant to s. 8, 9, and10(

b) and 24(2) of the Charter, such that Constable Sutton was offering his evidence in a voir dire, which proceeded to cross-examination. [5] During that cross-examination, it was discovered that Constable Sutton had with him certain documents, which were clearly apart of his investigation and relevant to the case, and which he believed had already been received by the Crown and, therefore, producedfor the Defence. However, those documents had not been received from the police by the Crown.

His only explanation was that heprovided those materials to the secretarial staff within the police and expected it had been forwarded. It was obvious that there had beenno intention to deny the Defence this material, as even Defence counsel observed that Constable Sutton would not have brought thedocuments with him. [6] The documents included a 14-page narrative report with an extensive analysis of both dial-a-dope operations in general and adetailed

summary of the investigation, as well as a 1-page Golden (R. v. Golden 2001 SCC 83 , [2001] 3 S.C.R. 679) checklistrelated to the strip search. As a result of this sudden discovery, the matter was stood down and the Crown made copies of the documentsfor the Defence and the matter continued the next day with further cross-examination in the voir dire.

This court also instructedConstable Sutton to make sure full disclosure was provided. [7] However, during the cross examination on the following day, Constable Sutton then referred to a third item, an audio recordingof the strip search, which had also not been produced for either the Crown or, more relevantly, for the Defence. [8] At that point, the Defence counsel discontinued his cross-examination and sought to pursue this application, including providingnotice.

The application required further cross-examination of Constable Sutton, as well as Sergeant Boyd, again in a voir dire on asubsequent day, before argument was then made. [9] Otherwise, the case is scheduled to continue pending the determination of this application to address the alleged infringementsof s. 8, 9 and 10(

b) of the Charter. Defence [10] The Defence says that the accused can no longer receive a fair trial because he has been denied the right to know the case to meetbefore he embarked on a trial strategy. [11] Specifically, Defence counsel says that without the additional disclosure, he strategized with the intention of attacking thecredibility of Constable Sutton, including calling defence evidence to impugn that credibility.

He says that opportunity is lost and hisentire strategy is compromised because the late-disclosed evidence, which relates to the documenting or recording of what ConstableSutton says took place at the scene and in the follow up investigation, has the effect of bolstering Constable Sutton’s evidence and cannow be used to discredit any defence evidence.

That, he says, removes the opportunity for the accused and likely, his additional witness,to offer evidence in the voir dire, fearing that any derogation from the documented or recorded details will risk damaging the defencewitness’s credibility. [12] He says that his actions have already inadvertently produced prejudicial evidence, and his defence strategy has been revealed,both of which cannot be remedied through an adjournment. [13] In regard to the production of prejudicial evidence, he refers to having followed the rule in Browne v.

Dunn (1893) 6 R 67 H.L.during his initial cross examination of Constable Sutton, which “requires” the Defence (or Crown) to put the alternative version of eventsthey expect their own witness to present, to an opposing witness in cross-examination. Although I say “requires”, the failure to do so willtypically just reduce the weight of their own witness’s alternative version because that opposing witness has not had the opportunity torefute or explain the basis for doubting that alternative version.

The Defence is concerned that the court will be unduly influenced,having heard Constable Sutton deny that alternative version in that cross examination, without hearing an alternative version, should theDefence not call evidence in the voir dire. He says that his own cross-examination of Constable Sutton is the “inadvertent creation ofevidence the Crown can use against the accused”.

The Defence also says that he would have focussed more specifically on the weaknessin the Crown case without that alternative evidence. [14] The Defence also argues that his strategy of attacking credibility has been revealed and the element of surprise is noweliminated. [15] The Defence further argues that the delay from the failure to fully disclose has also prejudiced Mr. Bagchi by virtue of theadditional cost, financial and psychological. He says the delay has allowed a break up in his relationship with the driver and witnessexpected to provide favourable evidence concerning the basis for the vehicle stop.

That favourable evidence may not now beforthcoming, since the Defence are out of contact and uncertain of what that witness might now say. [16] As for the integrity of the justice system, the Defence focussed on the mostly unexplained failure to disclose and the disregard of

the Court’s instructions to be sure that all disclosure was provided the following day. They suggest there remains some uncertainty fromConstable Sutton’s and Sergeant Boyd’s evidence as to whether there has now been full disclosure. The Defence suggests the courtcannot be confident of Constable Sutton’s evidence because of the failure to provide timely disclosure. The Crown [17] The Crown admits there was a failure, as a result of human error, to provide timely disclosure to the Defence.

The Crown alsoexplained some basis for the failure to compare the police and Crown file material following the first day of evidence as beingcomplicated by Constable Sutton being in cross-examination, thereby limiting her ability to have fulsome discussions with him. [18] However, she says the additional disclosure did not provide any substantive information not already available to the Defence.She provided an itemized comparison of the 14-page narrative report against the earlier disclosure to demonstrate that.

She also pointedout that the accused was alive to the fact that the strip search was being audio taped. [19] She says that credibility is always a live issue and the Defence can still pursue that avenue. THE LAW [20] The Defence reviewed a number of Supreme Court of Canada decisions which certainly recognize the importance of providingcomplete and timely disclosure as a requirement of trial fairness. That is not challenged by the Crown. However, it is the R. v. Bjelland2009 SCC 38 , [2009] 2 S.C.R. 651 decision that is most relevant to this application.

That sets out the analysis of the appropriateremedy in regard to a failure to provide timely disclosure, which is that a trial judge should only exclude evidence for late disclosure in“exceptional cases”, such as where late disclosure renders the trial process unfair, and the unfairness cannot be remedied through anadjournment and disclosure order, or where exclusion is necessary in order to maintain the integrity of the justice system. ANALYSIS [21] The evidence establishes that there was no intention to hide or provide late disclosure.

Had there been some intention, that mightwell factor into the integrity of the justice system analysis. However, it is the effect of that late disclosure on trial fairness that isrelevant, regardless of the intention. [22] It is certainly true that when the Defence does not expect to offer an alternative version, the Browne v. Dunn type questioningwill not serve them. However, that sort of alternative version denial does not, in my view, serve to bolster the witness’s testimony in thiscase (or most others), since it is simply a repetition of what he maintained occurred.

It is only those cases where some independentevidence arises in response to those questions leading to a greater likelihood that the witness’s version is true, that this questioning hasthat effect. That did not occur here. Moreover, the court can certainly disabuse its mind of that form of questioning and eliminate the riskof that falsely bolstering the witness’s testimony. [23] The suggestion that, when no defence evidence will be called in the voir dire, the strategy will be to simply attack any weaknessin the Crown case, in my view is a strategy not lost by virtue of the late disclosure.

That is what the cross examination, aside fromputting the alternative version to the witness, is proposed to do, and what the skilled counsel in this case has, to this point, already done. [24] As for the element of surprise, credibility, which includes reliability, is almost always a live issue. It is, therefore, hardly a “giveaway” that the Defence was, and is, planning an attack on the credibility of the Crown witnesses, including that it is their primarystrategy. Even when credibility is not seemingly a primary issue, it may arise unexpectedly and counsel will need to attack it, often onshort notice.

The position that the late disclosure has now removed that avenue for a so-called surprise attack, is in my view notsupportable. [25] As for the delay resulting from the late disclosure, it is unfortunate that there is an increased financial and psychological cost, butthat does not allow for an extreme remedy such as exclusion of evidence. As for the break down in the relationship and loss of contactwith the driver, the delay could have as easily allowed the finding of a lost witness, as it does losing contact.

Moreover, the strength ofthe relationship should have no bearing on the evidence of the witness. [26] In

summary, I am of the view that this is not an exceptional case in which the prejudice to the accused is so great that it requiresexclusion of evidence, nor is it necessary to do so to maintain the integrity of the justice system. The appropriate remedy for this s. 7 trialfairness breach is an adjournment and disclosure order, which have already effectively been made. That will serve to address theprejudice suffered by the accused. I will also order that the police witnesses be made available for any further cross examination at therequest of the Defence.

CONCLUSION [27] The Defence application for exclusion of Constable Sutton’s evidence is denied. _____________________________ The Honourable Judge D. Sudeyko Provincial Court of British Columbia