R. v. Green Date:, 2014 BCPC 84

Citation: R. v. Green Date: 20140512 2014 BCPC 0084 File No: 87949-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYLER ANTHONY GREEN RULING ON APPLICATION OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: C. Giles Counsel for the Defendant: M. Magaril, Articled Student Place of Hearing: Port Coquitlam , B.C. Date of Hearing: April 14, 2014 Date of Judgment: May 12, 2014

INTRODUCTION [ 1 ] The accused, Tyler Anthony Green (“Mr. Green”), stands charged under Information No. 89749-1 of committing the offence of mischief in relation to property, the value of which does not exceed $5,000, contrary to s. 430(4) of the Criminal Code . The alleged offence date is September 2, 2012 and the complainant is Bel Air Taxi Ltd. (the “Taxi Company”). For reasons that will become apparent presently, I note here that Mr.

Green is a black man. [ 2 ] In simple language, it is contended by the Crown that in the course of an altercation that developed between a number of individuals (only one of whom was black) and the Taxi Company’s driver Syed Farhan Ali Shah (“Mr. Shah”), Mr. Green threw a metal component of another vehicle’s braking equipment (the “Brake Component”) at Mr. Shah’s parked taxicab, causing scratches to its driver’s door.

As a matter of corporate policy, the Taxi Company holds its drivers responsible to pay for the repair of such damage to the vehicles they operate. [ 3 ] Partway through the trial of the charge against Mr. Green—that is, after the Crown had closed its case but before Mr. Green had determined whether he would call defence evidence—counsel sought an adjournment to consider the implications of certain late disclosure. [ 4 ] Specifically, while he was being asked questions in chief about the precise timing of certain relevant events, Cst. Jean-Phillippe Pelletier of the Coquitlam Detachment of the RCMP (“Cst.

Pelletier”) spontaneously consulted a document which he had brought with him to court in order to refresh his memory. That document is labelled “Detailed Call

Summary” and it records some particulars of the initial call to police and ensuing investigation of the incident that gave rise, ultimately, to Mr. Green’s mischief charge. In addition to timing and other information, the Detailed Call

Summary reveals—next to the heading “Complainant Name”—that it was one Umar Qureshi (“Mr. Qureshi”) who first called the police about the incident. [ 5 ] The Detailed Call

Summary (now marked as Exhibit “B” for identification for the purposes of Mr. Green’s application) did not figure in any of the pre-trial disclosure provided to Mr. Green by the Crown. Indeed, Cst. Pelletier’s recourse to it when on the stand came as a surprise not only to Mr. Magaril, counsel for Mr. Green, but to Crown counsel Mr. Giles as well. A copy of the document was prepared during a break and some use was made of it by Mr. Magaril during his cross-examination of Cst. Pelletier. However, this unanticipated development came after the direct- and cross-examinations of the Crown’s primary witness—Mr.

Shah—had already completed. Thus, as I have noted, Mr. Magaril sought and obtained Mr. Giles’ consent to adjourn the trial after he closed the Crown’s case but before the accused elected whether or not to call defence evidence. Mr. Magaril did so in order that he might fully consider the implications of the above-noted late disclosure. [ 6 ] It is common ground between Crown and defence that Cst. Pelletier’s failure to provide the Detailed Call

Summary to Crown counsel for purposes of disclosure was not an intentional or purposeful act, aimed at defeating Mr. Green’s entitlement to full and proper notice of the case he has to meet. It seems that, strangely, Cst. Pelletier was labouring under the mistaken assumption that when Mr. Qureshi reported the developing incident to police he did so in the capacity of a taxi dispatcher and, thus, from the Taxi Company’s headquarters—a location remote from the scene of the incident. (I say “strangely” because there is nothing in the document that suggests anything of the kind.) In fact, Mr.

Qureshi was and is a taxicab driver and, like Mr. Shah, he was present at the scene, witnessed the incident at issue and may even have had some personal involvement in it. [ 7 ] While the trial was adjourned, Crown counsel Mr. Giles requested that Cst. Pelletier follow up on the content of the Detailed Call

Summary in terms of other potential outstanding disclosure. In particular, he requested that Cst. Pelletier interview Mr. Qureshi to determine whether he had any evidence to give that would be germane to the matters in issue in the prosecution of Mr. Green. Cst. Pelletier acted on that request and found that Mr. Qureshi did, indeed, have relevant evidence to give. A recording and transcript of his witness interview (the latter now marked as Exhibit “A” for identification for the purposes of Mr. Green’s application) was provided to Mr. Magaril as supplementary disclosure before the resumption of Mr. Green’s trial. [ 8 ] After assessing and evaluating the revelations found in the Detailed Call

Summary and the transcript of the statement given to police by Mr. Qureshi, Mr. Magaril considered that sufficient prejudice had already resulted to Mr. Green by reason of the late disclosure to justify Charter relief under s. 24(1)—that is a judicial stay of proceedings or the declaration of a mistrial. In particular, Mr. Magaril (on behalf of Mr.

Green) now argues that the late disclosure has compromised his client’s right to make full answer and defence to the mischief charge he faces (s. 7) and to have a fair trial of that charge (s. 11(d)). [ 9 ] In his amended Notice of Application for Constitutional Remedy given pursuant to s. 8 of the Constitutional Question Act , R.S.B.C. 1996, c. 68, Mr. Magaril provided the Crown with the required statutory notice of his client’s application for Charter relief and, thus, on April 14, 2014 (the date scheduled for the continuation of Mr. Green’s trial), I heard full argument from both Mr. Magaril and Mr.

Giles on the question of whether, by reason of alleged infringements of Mr. Green’s rights under ss. 7 and 11(

d) of the Charter , I should: (

a) Grant a judicial stay of these proceedings, pursuant to s. 24(1) of the Charter ; or (

b) Declare a mistrial in these proceedings, either as a common law remedy or pursuant to s. 24(1) of the Charter ; or (

c) Grant such other relief pursuant to s. 24(1) of the Charter as I may consider appropriate and just in the circumstances; or (

d) Permit the trial to continue with one of a number of alternative permutations of calling and re-calling of witnesses. [ 10 ] These are my reasons for decision in relation to Mr. Green’s application. BACKGROUND FACTS

[ 11 ] I have previously referred to Cst. Pelletier’s untested and mistaken assumption that Mr. Qureshi was a taxi dispatcher who on the night of the incident must have been situated at a location other than the scene and thus could give no evidence about the events that unfolded at the scene. This untested and mistaken assumption was not based on anything in the document characterising Mr. Qureshi in that way; nevertheless (and, unaccountably) it led Cst. Pelletier to treat the Detailed Call

Summary that identified Mr. Qureshi as the “complainant” as being irrelevant. Thus he left the document out of what he disclosed to Crown counsel. It having been subsequently determined that Mr. Qureshi was not a head office dispatcher but, in fact, a fellow driver (who was not only at the scene at the material time but who both observed and, to a degree, may have participated in the incident), there is no room for argument that Mr. Qureshi did, indeed, have relevant evidence to give and that the Detailed Call

Summary that identified him ought to have figured in the Crown’s initial disclosure. [ 12 ] Mr. Giles, appropriately, does not deny that Mr. Green’s Charter rights under ss. 7 and 11(

d) were infringed by the Crown’s failure to disclose to him the Detailed Call

Summary and the information that he would undoubtedly have requested about and from Mr. Qureshi had Cst. Pelletier given him the Detailed Call

Summary at the outset. Indeed, in his closing argument Mr. Giles confined his submissions to the issue of what the remedy for those breaches should be. [ 13 ] Somewhat surprisingly, the lapse in Crown disclosure persisted over a substantial period—a period that was punctuated by recurring opportunities for the Crown indivisible to reassess the comprehensiveness and completeness of its disclosure. [ 14 ] Mr. Green was, at first, an unrepresented accused in these proceedings. Without the benefit of counsel or access to the subject disclosure, he pleaded not guilty to the mischief charge on January 17, 2013.

That charge was first set for trial on August 7, 2013. However, before that trial date was reached, Mr. Green sought and obtained counsel through the UBC Faculty of Law’s Law Student Legal Advice Program (“LSLAP”) and, upon his application, the trial was adjourned to October 18, 2013. [ 15 ] At a trial confirmation hearing held on October 2, 2013, Buller Bennett P.C.J. was advised of disclosure requests that had been made in mid-September by Mr. Green’s LSLAP student advocate, Mr. Magaril—seeking surveillance video, photographs and police notes—and that then still remained unfulfilled.

Her Honour ordered ex mero motu that the second trial date of October 18 th be struck for that reason. A third trial date was accordingly fixed for Mr. Green’s trial, that being January 14, 2014. [ 16 ] Correspondence between Mr. Magaril and Crown counsel continued on the subject of outstanding disclosure and by mid- December of 2013 all of Mr. Magaril’s disclosure requests that could be answered had been answered satisfactorily. (Those requests did not, of course, include anything relating to Mr. Qureshi because, by reason of Cst. Pelletier’s false assumption, neither Mr.

Magaril nor Crown counsel had any knowledge whatsoever of Mr. Qureshi’s role as a witness to, and possible participant in, the incident giving rise to Mr. Green’s charges.) [ 17 ] Mr. Green’s trial finally commenced on January 14, 2014. By that time, based in part upon the disclosure he had in hand, Mr. Magaril had formulated a particular strategic and tactical approach to resisting the Crown’s case against Mr. Green. He pursued that approach in the course of the trial as far as it proceeded. It was reflected particularly in the way that Mr. Magaril cross-examined the Crown witnesses, mainly Mr.

Shah. [ 18 ] To the surprise of all, the involvement of Mr. Qureshi in the incident came fully into focus after the adjournment of the trial to a continuation date that was granted by consent following Cst. Pelletier’s unexpected recourse to the Detailed Call

Summary during his evidence-in-chief. During the adjournment it became known to Mr. Magaril—mainly upon reviewing the police statement taken from Mr. Qureshi during the adjournment and disclosed to him before Mr. Green’s trial resumed—that Mr. Qureshi’s evidence, if called, would likely touch upon, inter alia , the following: (

a) An attempt by Mr. Shah to chase some of the individuals in the group involved in the incident; (

b) The possible involvement of Mr. Qureshi in the attempt by Mr. Shah to chase some of those individuals; and (

c) The damage caused to Mr. Shah’s taxicab by the thrown Brake Component being located on the driver’s door near the mirror. [ 19 ] These aspects of Mr. Qureshi’s statement appear to contradict Mr. Shah’s evidence at trial insofar as, when he testified, Mr. Shah: (

a) Portrayed himself as being a passive victim of aggressive behaviour on the part of the group of individuals involved in the incident. He made no mention of chasing any of them; (

b) Made no mention of Mr. Qureshi chasing, or participating in any chasing by him, of those individuals; and (

c) Testified to the location of the damage caused to his taxicab by the thrown Brake Component being at the side of the driver’s door nearest to the door handle (and not the mirror), consistent with the photographic evidence introduced as Exhibit 2, tab A, pp. 3, 5 and 6. [ 20 ] As I have noted, Cst. Pelletier—who by the time of the January 14, 2014 adjournment had both testified in chief and been fully cross-examined by Mr. Green’s counsel, Mr. Magaril—was tasked with the responsibility of following up on the new information found in the Detailed Call

Summary and, in particular, taking a statement from Mr. Qureshi. [ 21 ] Cst. Pelletier had previously taken a statement from Mr. Shah shortly after the incident in question. Thus, while he had not been present in court to hear Mr. Shah’s testimony, he would have had—based on those prior dealings—some sense of what Mr. Shah’s trial testimony would likely have been. Therefore, because he possessed that personal history with the matter, when Cst. Pelletier took the witness statement from Mr.

Qureshi he did so having some understanding of the likely contours of the evidence of the Crown’s key witness and some insights into the defence theory of the case, at least to the extent that that theory had been revealed in his own cross- examination by Mr. Green’s counsel, Mr. Magaril. These facts raise the spectre of possible, perhaps unintended, patterns of questioning by Cst. Pelletier of Mr. Qureshi that were informed by what Cst. Pelletier, as questioner, already knew and was expecting or seeking.

It is generally known that such knowledge and expectations can influence—sometimes in unintended ways—the manner in which a

questioner conducts his or her questioning, as well as the answers that are elicited by that questioning. [ 22 ] The appropriateness of Cst. Pelletier’s mode of questioning witnesses when taking their statements was, in fact, already an issue in this proceeding, even before the disclosure failure now under consideration had been identified. For example, Mr. Magaril established in his cross-examination of that officer that when he took Mr. Shah’s statement shortly after the incident, the interview continued after the recording device had been switched off.

Significantly, it is now apparent that it was in the course of that unrecorded exchange that Mr. Shah provided “clarification” as to who had committed the mischief. Further, Cst. Pelletier acknowledged the possibility that, during the unrecorded part of the witness interview, he may have suggested to Mr. Shah that it was the black male who had committed the mischief. He also admitted that he did not record in his notes what Mr. Shaw said when he made this important clarification (which, I repeat, came while the recording device was switched off): “Q. Okay. You took an audio-recorded statement of Mr.

Shah on September 2nd, 2012, and after the statement concluded you kept talking to Mr. Shah. A. He told me when I was going to leave some clarification regarding who did the assault and who did the mischief. Q. And he did not provide that clarification as a statement? A. No. I just wrote it in my notes. Q. Okay. And I’m going to suggest to you that when you spoke to Shah, you suggested to him that the black male caused the mischief. A. I don’t remember [indecipherable]. Q. Uh-huh. A. It might be my language skill. Q. Eh.

You agree that you did not take any notes of what was said in that subsequent conversation, September 2nd, 2012, after your [indecipherable]. A. Could you repeat the question? Q. You’d agree that you have no notes of your conversation with Mr. Shah following his audio recorded statement on September 2nd, 2012. A. If I can go over my notes to be sure, your Honour … THE COURT: Mr. Magaril, Mr. Giles, you’re fine with that? MR. GILES: Absolutely. THE COURT: You can check your notes, Constable. A. … So, I didn’t take any note. I just circled the dam- … the one who did the damage … Q. Okay. A. … on the vehicle. Q.

Okay. And you agree that you did not take a verbatim account of what either yourself or Mr. Shah had said in that conversation? A. Uh, can you repeat again sir? Q. You agree with me that, since you have no notes, uh, you do not … you do not have any sort of verbatim account of what Mr. Shah or yourself said? A. Uh … [indecipherable] … no. I only just circle the one. Q. And you don’t have any memory today of exactly what was said between yourself … A. Exact wording, I don’t remember, your Honour.” DARS Recording, January 14, 2014, 12:27:30 p.m. to 12:29:53 p.m.

[23] Given all of this history—particularly Cst. Pelletier’s history as a witness in Mr. Green’s trial whose investigative methods hadbeen called into question during cross-examination—I found it surprising that Cst. Pelletier was given the task of taking a statement fromMr. Qureshi. [24] Mr. Magaril submits that his cross-examination of all Crown witnesses, including Mr. Shah—the Crown’s key witness—waspredicated on a defence theory that did not embrace the possibility that Mr.

Green acted in defence of a person. (I include in this and allreferences to “defence of person” in these reasons the notion of defence of another as contemplated by s. 34 of the Criminal Code.) Indeed, Mr. Magaril submits that to the extent, based on his original defence theory, that his cross-examinations were aimed in part atgetting answers that yielded evidence that Mr. Green was always at a considerable distance from Mr. Shah and his taxicab, his cross-examination of Mr. Shah at the very least generated evidence that cuts against the possibility of raising the defence of person argumentthat he says Mr.

Qureshi’s evidence suggests may now be available. Mr. Magaril submits that he can see in the recently obtainedstatement of Mr. Qureshi the possibility that it was the two taxi drivers who were the initial aggressors and that there may have been atwo-on-one chase of one or more of the others by Mr. Shah and Mr. Quereshi leading Mr. Green to intervene—an aspect of the“transaction” at issue that was revealed to him only after he had completed his cross-examinations of Mr. Shah and all other Crownwitnesses. In this regard Mr. Magaril places reliance upon, inter alia, the following passage from Mr.

Qureshi’s statement, inviting thecourt to conclude that all the “he’s” refer to Mr. Shah: “But then the black guy interfered in the incident and you know he starts yelling at me to you want to start the fight? Let’s go with thefight, you know. And then he turns toward the black guy because ah, at that point he has told me to call RCMP, I was busy and we weretwo only ah, taxi drivers in the parking lot, there was no other.” Statement of Umar Qureshi,January 24, 2014, Exhibit “A” for identification at p. 4 ANALYSIS The Breaches are Indisputable [25] In this case the Crown’s breach of its obligation under R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326 to makeproper disclosure to Mr. Green is conceded. Cst. Pelletier had in his possession throughout the Detailed Call

Summary but did not pass iton to Crown counsel for onward transmission to Mr. Green in the course of routine, pretrial Crown disclosure. This failure resulted froman unfounded, untested and perplexing assumption on Cst. Pelletier’s part. The Detailed Call

Summary, coupled with the information itcontained about a witness with relevant evidence to give, only surfaced partway through Mr. Green’s trial and at a point where hiscounsel, Mr. Magaril, had already predicated his defence of Mr. Green on a particular defence theory and effectively committed Mr.Green to that theory. Based on what he knew at the time, Mr. Magaril elicited evidence (in his cross-examination of Mr. Shahparticularly) that militates against a defence (defence of person) that the late disclosure now reveals may be (or have been) available toMr. Green.

In these circumstances, I do not believe that it can be, or is, disputed that Mr. Green’s Charter rights to a fair trial (s. 11(d))and to make full answer and defence (s. 7) have been infringed by the failure to make timely disclosure of the Detailed Call

Summary. Ifind that such breaches did occur. [26] As is clear from what I have said above, there is nothing marginal about the failure of disclosure here in the sense meant by theSupreme Court of Canada in R. v. Dixon, (SCC), [1998] 1 S.C.R. 244. This is not late disclosure of a kind thatamounts simply to more of what had already been disclosed and which simply corroborates that which had already been disclosed. Rather, this late disclosure casts a different light on the relevant facts. Mr.

Magaril has persuaded me on this application that there is areasonable possibility that the undisclosed information available through Mr. Qureshi could have been used in meeting the Crown’s casein a different way—by providing a basis for contradicting and impugning the conflicting testimony of Mr. Shah on some points, and by(possibly) setting up an argument that Mr. Green acted in defence of a person. Moreover, like the accused in R. v. Melnychuk, [2008]B.C.J. No. 813 (Prov. Ct.), Mr.

Green was deprived by a failure of Crown disclosure of the opportunity to assess the strengths andweaknesses of the Crown’s case before he entered his plea. He and his counsel were also deprived of the ability to make informeddecisions on procedural and other matters that affected the conduct of his defence (such as, for example, whether to pose questions incross-examination of Crown witnesses that undermine the possibility of invoking the defence of person). [27] It follows from all of the foregoing that the real question before me is not whether breaches of Mr.

Green’s s. 7 and 11(d)Charter rights occurred, but rather what remedy should be granted for those breaches. Aggravating Factors [28] Mr. Magaril argues, persuasively in my view, that the fact that this failure of disclosure by the Crown went undiagnosed for solong makes the breaches of Mr. Green’s Charter rights more egregious. Mr.

Green was, at first, unrepresented and was on his way to afirst trial date where, but for his decision to seek legal advice and representation from LSLAP, he might well have had his trial heardwithout an advocate at his side and without ever having received the late disclosure that it is at issue now. And even after Mr. Magarilentered the picture as his student advocate and ultimately secured some outstanding disclosure by requesting the same, a second trialdate had to be sacrificed by reason of the disclosure that was still outstanding at that time. As it happens, the Detailed Call

Summarynever surfaced for disclosure purposes until halfway through Mr. Green’s trial which commenced on the third date for which it wasscheduled—that is, January 14, 2014. [29] One would also have thought that even without having had recourse to the Detailed Call

Summary, proper investigative stepsby the Crown indivisible would have identified all of the potential witnesses who were present at the scene of the incident, including Mr.Qureshi, and that those like him who had observed (and perhaps even participated in) important events would have been interviewed andgiven statements. Recall that he was the operator of the taxicab that was parked beside Mr. Shah’s taxicab when the altercationoccurred. Had Mr. Qureshi been identified as a material witness early on, the problem that was only revealed because Cst. Pelletierturned to the Detailed Call

Summary while in the stand in order to confirm certain minor timing facts would never have arisen because

Mr. Qureshi’s importance to the case would have been recognised long before trial and his statement would have formed part of conventional Crown disclosure preceding the first trial date. As it happens, this all lay undiscovered until well into the hearing on Mr. Green’s third trial date. [ 30 ] Moreover, Mr. Magaril has persuaded me that there is some reason to be concerned that, insofar as Cst. Pelletier was the one who later took a statement from Mr. Qureshi, the prejudice to Mr. Green resulting from the failure of disclosure has been enlarged. Not only did he take Mr.

Qureshi’s statement knowing the broad outlines of what Mr. Shah’s evidence had likely been at trial, Cst. Pelletier also took it knowing what there was to know about the initial theory of the defence to the extent that that theory was discernible in the way he was questioned himself when cross-examined by Mr. Magaril. [ 31 ] No one can ever know the extent, if at all, to which this earlier-acquired knowledge shaped the way Mr. Qureshi was questioned by Cst. Pelletier and the answers Mr. Qureshi gave. But, recall that Mr. Green was the only black male in the group involved in the altercation.

As the extract from his testimony on cross-examination quoted earlier in these reasons makes plain, Cst. Pelletier did acknowledge the possibility that after Mr. Shah’s statement had been tape recorded and without taking down in writing what was said subsequently to and by Mr. Shah , he (Cst. Pelletier) may have “suggested to [Mr. Shah] that the black male caused the mischief”. [ 32 ] I pause here to observe that this practice of questioning a witness when a recording device is not running is a most unsatisfactory one and a practice that the court should be quick to discourage.

It is a practice that, quite frankly, I am surprised that any experienced officer would adopt—especially where, as here, the evidence Cst. Pelletier got from Mr. Shah off the record is arguably the most important evidence incriminating Mr. Green that was obtained during the entire interview. In this regard, I invoke the discussion of the benefits of recording interviews found in in F. Kaufman, The Commission on Proceedings Involving Guy Paul Morin (Toronto: Ministry of the Attorney General, 1998) which was cited with approval by Duval J. in R. v. Duval , [2003] M.J.

No. 203 (Q.B.) : “A tape-recorded interview illuminates the way in which the interviewing process enhanced or detracted from the reliability and accuracy of the evidence. It helps identify the reasons that a witness changes testimony. It reveals bias, both on the part of the witness and the interviewer, where bias exists. It protects the officer against allegations which are groundless, or it substantiates such allegations. It inhibits impropriety on the part of the authorities.” (at para. 38) [ 33 ] Cst.

Pelletier’s apparent blindness to these considerations raises concerns about his approach to interviewing all witnesses in this matter, including Mr. Qureshi. I therefore consider that the proposition advanced by Mr. Magaril that Mr. Qureshi’s statement may have been affected as to its content by what Cst. Pelletier knew as a result of his involvement as both Mr. Shah’s interviewer and a witness at trial is neither far-fetched nor fanciful. [ 34 ] Mr. Giles has already acknowledged during his closing submissions that when questioning Mr. Qureshi about the location of the damage caused to Mr.

Shah’s driver’s side door by the thrown Brake Component, Cst. Pelletier posed a leading question suggesting that that damage was “above the handle”. In answer he got a “yeah” response from Mr. Qureshi that corroborates Mr. Shah’s evidence on the point: see p. 6 of Exhibit “A” for identification (where, counsel agreed upon listening to the recording in court that the “indecipherable” word in the line in question is “handle”). Later, however, and not in response to a leading question, Mr. Qureshi volunteered the contrary evidence that the damage was “right by the … side mirror” and, thus, contradicted Mr.

Shah’s evidence and his own, earlier response to the constable’s leading question that posited that the damage was located above the door handle. [ 35 ] Beyond that, I offer one further example of an exchange between Cst. Pelletier and Mr. Qureshi that occurred during the taking of Mr. Qureshi’s statement which further illustrates the possibility that Mr. Qureshi’s evidence may have been affected as to its content by what Cst. Pelletier knew. “PELLETIER: Did they talk to you first or talk to your partner? QURESHI: No, talked to my partner first. PELLETIER: Okay. And what did they ask him?

QURESHI: They ask him for the ride. PELLETIER: Okay. And what did he answer to them? QURESHI: Ah, because he was on the window right, the guy was on the window. PELLETIER: Yeah. QURESHI: And he was saying something to him. I don?t remember what he asked but it was like a refusal from the driver. PELLETIER: (INDECIPHERABLE) QURESHI: Maybe he was asking for money up front or something like that. Statement of Umar Qureshi, January 24, 2014, Exhibit “A” for identification at pp. 1-2 [ 36 ] It is evident that Mr.

Qureshi’s final answer in that exchange may have been guided, perhaps inadvertently, by the content of the question put to him by Cst. Pelletier. When he was first asked what Mr. Shah said to those who approached him for a ride, Mr. Qureshi answered in a manner that indicates that he didn’t hear or remember what Mr. Shah said. Then, after an indecipherable vocalisation from Cst. Pelletier, Mr. Qureshi speculates that perhaps Mr. Shah was asking those who approached him “for money up front or something

like that”. We cannot now know what Cst. Pelletier said that preceded that speculative answer (it is indecipherable) but Mr. Qureshi’sresponse does square with Mr. Shah’s evidence on the point given at trial and, undoubtedly, with what Cst. Pelletier learned when hetook Mr. Shah’s statement. [37] The risk of Mr. Qureshi’s evidence being potentially tainted in this way—a risk that was knowable by the Crown indivisible byreason of what had transpired in the courtroom before Mr. Green’s trial was adjourned in medias res—could have been significantlyreduced if any law enforcement officer other than Cst.

Pelletier had been tasked with taking Mr. Qureshi’s statement. Unfortunately, thatstep was not taken with the result that an already prejudicial situation for Mr. Green was made more so. Is a Judicial Stay of Proceedings the Proper Remedy? [38] Mr. Magaril argues, on behalf of Mr. Green, that a judicial stay of proceedings pursuant to s. 24(1) of the Charter is the properremedy in the case at bar.

He acknowledges that the applicable authorities all recognise and stand for the proposition that judicial staysfor failures of disclosure by the Crown are granted under s. 24(1) of the Charter only in the clearest of cases: see, for example, R. v.O’Connor, (SCC), [1995] 4 S.C.R. 411 at para. 82 and R. v. Baxter, [1997] B.C.J. No. 722 (C.A.) at para. 89. [39] The majority in O’Connor recognised that some breaches of disclosure amount to violations of ss. 7 and 11(

d) of the Charterthat cannot be adequately remedied by adjournment, the recalling of witnesses and other such measures. In those cases, where it can alsobe shown that the principles that underlie the community’s sense of decency and fair play have been violated by the failure of disclosure,a stay of proceedings is justified. [40] Here, as I have explained earlier in these reasons, Mr. Magaril as defence counsel has already “tipped his hand” and put ondisplay a theory of Mr. Green’s defence through the approach he has taken to cross-examination of all of the Crown witnesses,particularly Mr. Shah.

He did so on the strength of the disclosure he had received which he reasonably concluded was complete andCharter-compliant—disclosure that gave no hint of a defence of person theory or of contradictory evidence of another witness whoobserved the subject events, close hand, at scene. Mr. Magaril can rightly argue, as it was argued in R. v. T. (L.A.), (ON CA), [1993] O.J. No. 1605 (C.A.), that (tracking the language from that case at para. 15): “… it cannot be said with certainty that [Mr. Green] was not prejudiced. The critical opportunity to attack the credibility of thecomplainant [Mr.

Shah] was considerably, and arguably, irredeemably reduced.” [41] Mr. Magaril submits that he carried out his cross-examinations of Crown witnesses, particularly Mr. Shah, on the basis of atheory of the defence that may be superseded by what he knows now as a result of the Crown’s late disclosure. He elicited answers fromthose witnesses during his cross-examinations that he says he may not have sought to elicit had the other defence—that is, “defence ofperson”, a defence with which the elicited evidence is incompatible—been known to him to be a possible one then (as it is known to himto be now). In R. v.

Williams, [2006] B.C.J. No. 1781 (S.C.), Dorgan J. was faced with similar arguments advanced by defence counselFirestone and said, in that connection, “I accept Mr. Firestone’s submissions that certain decisions were made by the defence in respectof this issue based on the Crown’s evidence as it stood” (at para. 16). I similarly accept Mr. Magaril’s submissions to that effect.

HerLadyship’s words in paragraphs17-20 in this connection are also apposite: “… It is not the timing of this disclosure that is determinative in these circumstances; it is the fact that the Crown wishes to call evidenceit has marshalled after the defence has committed to a certain course of action, a course of action reflected in the cross examination[s] of[certain Crown witnesses] … and after the defence has committed to its theory of the case.” “… I accept that the impugned evidence fundamentally impacts the theory of the defence …” “… the admission of this evidence at this stage of the trial would fundamentally compromise and impair [the accused’s] right to makefull answer and defence.” “ … To recall witnesses for further cross-examination is too much of a compromise since the defence has committed itself to a certainapproach based on the evidence then disclosed and then available.” [42] Although he didn’t put it quite this way, the burden of Mr.

Magaril’s submissions is that, from a defence theory perspective, thedefence horse has been brought out of the barn and is now in plain view for the Crown to see. There is no leading it back in and puttingit out of sight and out of mind. Certain strategic and tactical steps he has taken on Mr. Green’s behalf on the faith of the disclosure hereceived before trial have, to some extent, committed him to the original defence theory and constrained if not foreclosed altogetherother defence theories, including the theory of defence of person that he submits is suggested by the new disclosure.

He rightly cites inthis connection the words of Lamer J. for the majority in R. v. M.B.P., (SCC), [1994] 1 S.C.R. 555, who stated, at para.42, the following: “… I agree with respondent’s counsel in this case that there comes a point when ‘enough is enough’, and a mistake or omission by theCrown must necessarily become fatal. Once the defence starts to ‘meet the case’, thus revealing its own case, the Crown should, exceptin the narrowest of circumstances, be ‘locked into’ the case which, upon closing, it has said the defence must answer.

The Crown mustnot be allowed in any way to change that case …” [43] I readily acknowledge that in M.B.P. the circumstances were in some respects more egregious than those in the case at bar: theaccused there had called evidence before receiving his late disclosure, for example. But in some respects the facts of this case areegregious as well, though for other reasons. Here, there is evidence to support the contention that because of Cst. Pelletier’s tendency touse questionable investigative practices, the evidence that the Crown has already adduced from its key witness, Mr. Shah, has beentainted.

Despite that, and despite the fact that by dint of his having been made privy to the defence theory of the case by having beencross-examined by Mr. Green’s counsel, Cst. Pelletier was tasked with taking Mr. Qureshi’s statement. These factors, in my judgment,rendered him an unsuitable candidate for taking Mr. Qureshi’s statement. But he undertook that assignment nevertheless and Mr.Magaril has succeeded in showing that some of what transpired in the interview with Mr. Qureshi reflects the same concerns—the use ofleading and suggestive questions, for example—that emerge from a review of his interview of Mr. Shah.

These worrisome aspects of the

case at bar bring it close to, if not within, the ambit of Chief Justice Lamer’s strong words in M.B.P. [ 44 ] I have adverted above to the repute of the administration of justice being a factor in determining whether a judicial stay is an appropriate remedy in a failure of disclosure case where the s. 7 and 11(

d) rights of an accused have been infringed.

I believe it reasonable to conclude that the consciences of informed and right-thinking members of our society would be offended by the thought that the Crown could mount a case against an initially helpless and unrepresented accused (who enjoys the presumption of innocence) and then—despite the failure of a police officer properly to pass on an important and relevant piece of documentary evidence in the course of routine disclosure to Crown counsel—be permitted to continue its prosecution nevertheless, relying upon new evidence revealed in the document that changes the landscape significantly relative to what the landscape appeared to be when the defence laid many of its cards on the table, face up. [ 45 ] This concern about the administration of justice being brought into disrepute is strengthened when it is recalled that that new evidence may have been influenced by the way it was first gathered, given that Mr.

Qureshi’s police statement was taken by Cst. Pelletier—the same officer who took Mr. Shah’s statement—knowing not only what Mr. Shah’s evidence on key points was but knowing as well everything that could be gleaned about the defence theory from his own cross-examination by Mr. Green’s counsel, Mr. Magaril. [ 46 ] This aggravating factor compounds the prejudice to Mr. Green and to the repute of the administration of justice, removing from consideration in my respectful view any lesser remedy than a stay. Cst.

Pelletier’s failure to recognise the hazards and potential injustices that could result from obtaining a “clarification” of Mr. Shah’s evidence incriminating Mr. Green off the record, coupled with his acknowledgement of the possibility that he may have suggested the answer in the way he framed the question that elicited that incriminating evidence, rendered him an unsuitable candidate for taking Mr. Qureshi’s statement. I say again that Cst.

Pelletier’s mishandling of these aspects of the case may have been inadvertent or the result of comparative inexperience but that does not relieve those actions of their prejudicial effects, both upon Mr. Green’s Charter rights and upon the repute of the administration of justice. While expressed in a somewhat different context, I believe that this observation of Iacobucci J. in R. v.

Mann , [2003] 3 S.C.R. 59 applies, mutatis mutandis , to the case at bar: “This Court has stated that 'good faith' cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or her authority.” (at para. 59) [ 47 ] Just as unreasonable error and ignorance regarding a police officer’s appreciation of his or her scope of authority can militate against the admissibility—pursuant to s. 24(2) and the analysis that springs from the Grant trilogy—of evidence obtained through unconstitutional search and seizure practices, so also can unreasonable errors and ignorance regarding disclosure obligations, compounded by unreasonable errors and ignorance regarding the taking of witness statements, militate in favour of a stay of proceedings where breaches of ss. 7 and 11(

d) rights have been established. [ 48 ] After anxious consideration I have reached the conclusion that in these very unique circumstances the prejudice to Mr. Green, coupled with the potential injury to the repute of the administration of justice that would result if this prosecution were to continue in any way, are sufficient to bring this case within the narrow class of those in which a stay of proceedings under s. 24(1) is mandated as the only effective remedy. No lesser remedy would adequately address the prejudice to Mr.

Green or the potential injury to public confidence in the administration of justice that have been occasioned by the disclosure failure (and the other ancillary errors entrained by that failure) that have been identified by Mr. Magaril on behalf of Mr. Green. RECOGNITION FOR COUNSEL’S HELPFUL CLOSING SUBMISSIONS [ 49 ] Before closing, I feel I would be remiss if I did not express my gratitude to both counsel for their very thorough and helpful closing submissions.

Those submissions assisted me greatly in dealing with this rather unusual and difficult case. [ 50 ] As a very capable and experienced Crown counsel, Mr. Giles (as usual) met and surpassed the court’s high expectations in this regard. Mr. Magaril—an LSLAP student advocate functioning under the sound guidance of another very capable and experienced lawyer, Mr. Gunnell—brought insight and skill to this case that, to my mind, reflected an understanding of the facts, law and principles of advocacy that are well beyond his years and experience. For that, he and his lawyer supervisor, Mr.

Gunnell, deserve special mention. DISPOSITION [ 51 ] The mischief charge against Mr. Green is stayed. [ 52 ] Order accordingly. ________________________________ Thomas S. Woods, P.C.J.