2020 QCCQ 987, 2020 QCCQ 987

Translated from the original French R. c. Gravel 2020 QCCQ 987 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division No.: 500-01-114408-146 DATE: March 10, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE DAVID SIMON, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Applicant - prosecutrix v.

JONATHAN GRAVEL Respondent – accused ______________________________________________________________________ JUDGMENT ON AN APPLICATION TO EXCUSE A WITNESS ( s. 700(2) of the Criminal Code ) [1] ______________________________________________________________________ The Court renews the order rendered under s. 486.4(1) of the Criminal Code directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. I.

OVERVIEW [ 1 ] On May 24, 2018, the respondent-accused (the “accused”) was convicted of sexual assault against C.M.F. (the “victim”). [2] [ 2 ] The accused committed his offence on November 22, 2014. In the context of sexual intercourse that was initially consensual, the accused inserted his penis in the victim’s anus without her consent and continued to do so despite her expressing her unequivocal refusal. [ 3 ] The accused and the victim had known each other for some time already.

They had had an intimate relationship, perhaps even a romantic one, in the preceding months. [ 4 ] One distinctive feature of this file is that, at trial, the prosecution adduced into evidence an out-of-court statement the accused gave the police officers where he agreed that the victim had not specifically consented to anal penetration. [ 5 ] After the conviction, but before the sentencing hearing, trial counsel for the accused, Mtre Luc Trempe, withdrew as counsel of record.

Mtre Myriam Andraos took the file and announced her intention to file several motions. [ 6 ] On November 26, 2018, the accused filed, inter alia , a motion for a stay of proceedings or mistrial (“RD2”). The accused argued that several of his constitutional rights had been infringed, thereby justifying a stay of proceedings or, in the alternative, a mistrial. [ 7 ] Raising the unfairness of his trial, he alleged, among other things, that the following rights have been infringed: - right to disclosure of evidence;

- right to effective assistance of counsel; and - right to be tried within a reasonable time. [ 8 ] The hearing of that motion began in July 2019 with the right to be tried within a reasonable time. [ 9 ] Concerning that portion, the parties disagreed on the reasons for postponing the preliminary inquiry on November 26, 2015, and on February 25, 2016. [ 10 ] The recording of the hearings sheds very little light that could resolve this disagreement.

The Court asked Crown counsel, Mtre Alexis Dinelle, whether it would be possible to obtain details from his predecessor, Mtre Paul Rouillard, counsel in charge of the file on the dates at issue. [3] [ 11 ] It is in this context that Mtre Rouillard signed a sworn statement on July 17, 2019. [4] It was disclosed to the accused that same day. [5] [ 12 ] On August 27, 2019, at the accused’s request, a justice of the peace issued a summons for Mtre Rouillard [6] to testify in the context of the hearing of RD2. [ 13 ] On September 4, 2019, the prosecution objected to this approach and sought to have the summons quashed by way of a verbal motion (“RP3”).

The Court informed the prosecution that it did not have jurisdiction to quash a summons. The prosecution then decided to amend its motion so as to have the Court excuse Mtre Rouillard within the meaning of s. 700(2) of the Criminal Code (“ Cr. C. ”). [7] [ 14 ] Meanwhile, the accused served a “Stinchcombe” motion (“RD3”) [8] in which he sought, among other things, an order to disclose the victim’s forensic kit.

He also suggested that the Court wait for the outcome of this motion before ruling on the motion regarding Mtre Rouillard’s testimony. [ 15 ] The Court agreed with this suggestion and first ruled on RD3, ordering the disclosure of the documents relating to the victim’s forensic kit. [9] [ 16 ] Once these documents were obtained, the accused decided to re-amend RD2 [10] to argue the Crown’s abuse of process, in breach of the rights guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms (the “ Charter ” ). [ 17 ] The accused submitted in particular that the prosecution failed to disclose exculpatory evidence [11] and conserve potentially exculpatory evidence, [12] and that it participated in misleading the Court. [13] [ 18 ] According to the accused, this type of conduct undermines the integrity of the justice system [14] (in addition to making the trial unfair) and justifies a stay of proceedings. [15] [ 19 ] In light of these allegations and the evidence heard since the summons was issued, the Court asked for additional submissions from the parties on the appropriateness of having Mtre Rouillard testify, which submissions were made on December 16, 2019.

II. ISSUE [ 20 ] The Court must now determine whether Mtre Rouillard should be excused within the meaning of s. 700(2) Cr. C. Subject to certain nuances that will be examined later, the answer to that question will depend on the answer to this one:

1. Has the accused shown that Mtre Rouillard is likely to provide material evidence regarding the issues raised in RD2? [ 21 ] Before analyzing this issue, certain relevant elements of the file should be noted for a better grasp of the debate. [16] III. BACKGROUND - Relevant chronological overview [ 22 ] The events giving rise to the charge happened during the night of November 22 to 23, 2014. [ 23 ] In the evening of November 23, 2014, the victim went to the Jewish General Hospital for pain in her wrist. She then disclosed the sexual assault and submitted to a forensic kit.

She agreed to have it handed over to the police officers so that it could be used in the investigation. The kit includes a form completed by the victim and the samples collected from her body. [17] [ 24 ] The sexual assault was reported that very night to the Montreal Police Department (“SPVM”). Officer Deschênes went to the hospital to meet with the victim and take possession of the forensic kit. She put it in the refrigerator for sexual assault evidence, in the Centre Opérationnel Sud. [18] [ 25 ] A few hours later, the accused was arrested for sexual assault. He was charged the next day, on November 25, 2014.

The file was assigned to Mtre Rouillard. [19] [ 26 ] On December 5, 2014, Officer Fiset retrieved the kit and sent the samples to the Laboratoire de Sciences Judiciaires et de Médecine Légale (“LSJML”) for appraisal by experts. Officer Fiset sent the form completed by the victim to Sergeant-Detective Fournier (“S/D Fournier”). [20] [ 27 ] S/D Fournier sent the form to Mtre Rouillard.

He does not remember on what date he did so. [21] [ 28 ] On January 20 and 21, 2015, the victim was hospitalized at the Jewish General Hospital due to depressive disorders related to the events of November 22, 2014. [22] [ 29 ] On January 22, 2015, according to the typewritten notes of Mr. Olivier Paquette, a technician with the LSJML, S/D Fournier asked the laboratory to wait before performing an expert appraisal of the samples, as he was awaiting instructions in this regard from the prosecutor, Mtre Rouillard. [23] [ 30 ] Mr.

Paquette’s notes reveal that as of February 3, 2015, S/D Fournier was still waiting to hear from Mtre Rouillard about the expert appraisal of the samples. [24] [ 31 ] On March 24, 2015, Mr. Paquette contacted S/D Fournier again and warned him that the file would be closed by the LSJML if he did not get back to him by April 2015.

That same day, S/D Fournier informed the LSJML that it would not be necessary to perform an expert appraisal of the samples because the accused had admitted to having sexual intercourse with the victim on the evening of the events. [25] [ 32 ] On March 26, 2015, the request for an expert appraisal was officially cancelled. Sergeant-Detective Ferland (“S/D Ferland”) retrieved the kit a few months later and brought it to the personal effects room of the Centre Opérationnel Nord, where it was kept in an unrefrigerated space. [26]

[ 33 ] On April 9, 2015, S/D Fournier went to the victim’s home at Mtre Rouillard’s request to have her sign an authorization to disclose medical information. [27] [ 34 ] The victim willingly authorized the Jewish General Hospital to provide the police officers appointed by the SPVM with the medical information regarding the medical care received and the intervention on November 24, 2014, as well as during subsequent appointments in relation with the assault. [28] [ 35 ] On April 29, 2015, the Jewish General Hospital provided the files that were the subject of this authorization, those concerning the visit on November 23 to 24, 2014, and those concerning the victim’s hospitalization on January 20-21, 2015. [29] [ 36 ] S/D Fournier took possession of these files.

He read them and gave them to Mtre Rouillard on September 11, 2015, the day scheduled for the preliminary inquiry. [30] [ 37 ] According to S/D Fournier, on that date, Mtre Rouillard was already in possession of the form from the forensic kit. [31] [ 38 ] Mtre Rouillard asked and obtained the postponement of the preliminary inquiry to examine the victim’s medical records, disclose the evidence to the defence and perhaps make [ translation ] “a decision about what to do next”. Mtre Rouillard indicated [ translation ] “that evidence might be revealed that would change the prosecution’s position”.

The accused did not object to the request for postponement. The case was postponed pro forma to November 26, 2015. [32] [ 39 ] On November 26, 2015, Mtre Trempe informed the Court that some evidence had yet to be disclosed and some verifications to be made with the victim. Mtre Rouillard agreed. The parties agreed to postpone the case pro forma to February 25, 2016. [33] [ 40 ] On February 25, 2016, Mtre Rouillard informed the Court that he would be meeting with the victim.

With counsel for the accused’s consent, the case was postponed pro forma to May 12, 2016, on which date the parties scheduled the preliminary inquiry for September 30, 2016. [34] [ 41 ] During the month of March 2016, Mtre Rouillard was transferred to a new team within the Director of Criminal and Penal Prosecutions (“DCPP”). Mtre Dinelle took over as lead counsel of record. [35] [ 42 ] On May 11, 2016, Mtre Dinelle wrote to Mtre Trempe to inform him that, pursuant to s. 278.2(3) Cr.

C ., he was in possession [ translation ] “of the medical record (including the psychiatric file) and the victim’s sexual assault kit”. [36] [ 43 ] The accused did not request disclosure to obtain the kit or the medical records or present a Mills motion. [ 44 ] The accused’s trial was held on November 20, 21, 2017, February 23, and March 19, 2018.

The victim testified on November 21, 2017, and February 23, 2018. [ 45 ] It was only on September 27, 2018, a few months after the verdict, that the accused, through his new counsel, asked the prosecution to disclose the forensic kit and the laboratory results from the samples. [37] [ 46 ] On November 5, 2018, the prosecution confirmed that the samples had not undergone expert appraisal and that, accordingly, there were no laboratory results. [38] [ 47 ] On June 18, 2019, the accused asked the prosecution to disclose the information necessary to identify the medical documents

in its possession. The accused also wanted to know how the prosecution had come to be in possession of these documents. [39] [ 48 ] On July 17, 2019, Crown counsel responded by email confirming that he was in possession of the kit and medical records. He explained how he had come into possession of these documents.

In an attachment, Crown counsel disclosed the sworn statement of Mtre Rouillard clarifying the reasons for the various postponements during the preliminary inquiry stage. [40] [ 49 ] That same day, the accused once again asked the prosecution to particularize the nature of the medical documents in its possession. [41] [ 50 ] Crown counsel responded to this request on July 18, 2019, by refusing to add any particulars, being of the view that he had complied with any obligations he had under s. 278.2(3) Cr.

C . [42] [ 51 ] On July 19, 2019, the accused sent another request for disclosure in which he sought to obtain the consent form from the forensic kit and the authorization to disclose medical information. [43] [ 52 ] On August 16, 2019, in response to the allegations of ineffective counsel, Mtre Trempe filed a sworn statement. [44] [ 53 ] In that affidavit, Mtre Trempe gave certain explanations on the grounds surrounding the postponements at the preliminary inquiry stage.

Among other things, he wrote: - The remarks of Mtre Rouillard on September 11, 2015, left him under the impression that the prosecution would disclose the victim’s medical records and that the content of these documents could result in the case being settled by other means than holding a trial. [45] - The case was postponed from November 26, 2015, to February 25, 2016, because Mtre Rouillard still had documents to disclose and had to meet with the victim. According to Mtre Trempe, settling through an undertaking pursuant to s. 810 Cr. C . was a possibility.

He therefore did not object to the postponement. [46] - The case was postponed from February 25 to May 12, 2016, because Mtre Rouillard had yet to meet with the victim. According to Mtre Trempe’s understanding, the meeting contemplated was to confirm whether the victim still wanted to pursue the case. Settling the case by other means than holding a trial remained a possibility. For that reason, he agreed to postpone. [47] [ 54 ] On August 23, 2019, Crown counsel disclosed a copy of the authorization to disclose medical information signed by the victim on April 9, 2015, to the accused.

He refused to hand over the consent form from the kit, however, on the ground that the disclosure of such a document was subject to the Mills rule. [ 48] [ 55 ] Faced with Crown counsel’s refusal, the accused brought a Stinchcombe motion to obtain disclosure of the forensic kit and the victim’s medical records.

On November 1, 2019, the Court ordered the disclosure of the kit, but concluded that the medical records were subject to the rule set out in Mills . [49] [ 56 ] On this same date, the prosecution complied with the Court’s order and disclosed the form from the kit completed by the victim during her hospital visit on the evening of November 23, 2014. [50] [ 57 ] On November 8, 2019, the accused once again asked the prosecution to indicate the specific grounds why the medical records in his possession (those obtained following the consent signed by the victim on April 9, 2015) were [ translation ] “likely relevant”. [51] [ 58 ] On November 12, 2019, Crown counsel responded that the medical records were clearly irrelevant, a position he reiterated on November 18, 2018. [52]

- Sworn statement of Mtre Rouillard [ 59 ] The sworn statement dated July 17, 2019, adds the following particulars, among others: - On March 19, 2015, Mtre Rouillard met with the victim, who maintained that she wanted to proceed and told Mtre Rouillard that she may have caught a sexually transmitted infection (“STI”) from the assault. [53] - On March 26, 2015, Mtre Rouillard spoke with S/D Fournier to ask him for the victim’s medical records to check if she had caught an STI. [54] - On September 11, 2015, Mtre Rouillard asked for and obtained a postponement of the preliminary inquiry to go through the victim’s medical records and assess whether their contents could have an impact on the nature of the charges. [55] The victim was present and ready to testify. [56] - A few weeks later, Mtre Rouillard, after consulting an associate chief counsel, verbally informed Mtre Trempe that he would have to proceed by motion to obtain a copy of the medical records. [57] - According to Mtre Rouillard, from that point, the prosecution had met its duty to disclose. [58] - Throughout the initial procedural stages, Mtre Trempe periodically asked whether an undertaking pursuant to s. 810 Cr.

C . was possible to settle the file. Mtre Rouillard answered in the negative. The victim’s wishes were clear. [59] - Prior to the pro forma dates of November 26, 2015, and February 25, 2016, Mtre Trempe told him that his client had documentation in his possession concerning the victim’s mental health that would likely have an impact on the assessment of her credibility.

Mtre Rouillard never received any such documentation. [60] - The allegations of abuse of process [ 60 ] From the very first version of RD2, the accused implied an abuse of process by the authorities by raising a [ translation ] “hodgepodge of errors and wrongful acts by all those involved, including the prosecution, counsel for the defence, police officers, and the institutional system”, [61] of such a nature as to undermine the integrity of the legal system. [62] [ 61 ] It was only following the disclosure of the forensic kit, however, that the accused officially alleged that he suffered abuse of process at the hands of the State, and the prosecution in particular, in violation of his rights guaranteed under s. 7 of the Charter . [ 62 ] The re-amended version of RD2 now lists several acts by representatives of the prosecution that, according to the accused, are akin to abuse of process. [ 63 ] First, the accused claims the prosecution deliberately failed to disclose exculpatory evidence, the forensic kit in particular, in order to [ translation ] “win” at trial. [63] [ 64 ] According to the accused, the forensic kit contains information that contradicts both the victim’s out-of-court statement and her

testimony at trial. Had this information been disclosed in a timely manner, it would have significantly undermined the credibility of the victim’s version. [64] [ 65 ] Similarly, the accused argues the prosecution’s persistent failure to provide particularized information on the nature of the victim’s medical records in its possession, a duty that was incumbent upon it pursuant to the principles set out in Mills .

According to the accused, this failure made it, and continues to make it, impossible to present a sufficiently substantiated Mills motion that could result in the production of the medical records. [65] [ 66 ] Second, the accused maintains that the prosecution was grossly negligent by failing to conserve the samples taken during the victim’s hospital visit on the evening of November 23, 2014. These samples did not undergo expert appraisal and, moreover, were kept in an unrefrigerated area. They are now unusable.

This negligence makes it impossible to corroborate or disprove the versions of the accused or the victim. [66] [ 67 ] Finally, the accused raises the strong probability that the victim committed perjury at trial in that some of the information revealed in the form she completed during the forensic examination directly contradicts important elements of her testimony at trial. [ 68 ] The prosecution had this form in its possession at trial and therefore must have known its contents.

Accordingly, there is, according to the accused, a reasonable chance that the prosecution was complicit in the main witness’s perjury, which would further legitimize the argument of abuse of process. - Reasons raised in support of Mtre Rouillard’s summons [ 69 ] The summons issued to Mtre Rouillard is essentially justified by the fact that the accused strongly doubts the truth of specific allegations in the sworn statement. [ 70 ] More specifically, the accused calls into question the assertion that the victim really wanted to proceed with the case. [67] [ 71 ] According to the accused, when the preliminary inquiry was postponed, the prosecution was already in possession of documents that could undermine the credibility of the victim.

It is therefore more likely that Mtre Rouillard wanted to meet with and confront her to put an end to the case through an undertaking pursuant to s. 810 Cr.

C ., especially since, according to the testimony of Mtre Trempe, she was hard to reach. [68] [ 72 ] Similarly, the accused submits that if the victim’s intentions were so clear, then Mtre Rouillard would have insisted that the preliminary inquiry take place as soon as possible, in accordance with the instructions of the DCPP on matters of sexual assault. [69] [ 73 ] The accused also expresses serious reserves as to the reason for obtaining the victim’s medical records.

He is of the view that if Mtre Rouillard had truly sought to obtain proof of an STI being transmitted, he would instead have asked the LSJML to analyze the samples, some of which had been taken for the specific purpose of detecting STIs, as the form from the forensic kit reveals. [70] [ 74 ] The accused alleges that Mtre Rouillard’s sworn statement was written solely to win the motion for a stay of proceedings or mistrial. [71] [ 75 ] With these arguments as a backdrop, the accused maintains that Mtre Rouillard’s testimony is admissible in that it would bring material evidence of the following points in dispute: [72]

a) The reason for the postponements of September 11, 2015, November 26, 2015, and February 25, 2016;

b) The reason why the prosecution did not proceed with the preliminary inquiry on those dates and/or did not object to the postponements;

c) The allegation according to which the prosecution did not believe in the case and wanted to put an end to it through an undertaking

pursuant to s. 810 Cr. C .;

d) The reason why the prosecution made sure to obtain disclosure of the victim’s medical records;

e) The context and conversations surrounding the victim consenting to provide the prosecution with her medical records;

f) The specific reasons why the medical records in question, or parts thereof, in the possession of the prosecution were likely relevant to the accused’s case;

g) The impact of this information on the prosecution’s assessment of the accused’s case;

h) The reason why the form from the forensic kit was not disclosed to the accused;

i) The reason why there was no official Mills announcement to the accused at the time;

j) The reason why Mtre Rouillard did not return the calls and emails of the investigator concerning the analyses of the forensic kit’s samples;

k) The reason for preparing the sworn statement and the truth and reliability of its contents. [ 76 ] According to the accused, these litigious issues are related to the [ translation ] “unreasonable delay”, [ translation ] “disclosure” and [ translation ] “abuse of process” portions of RD2. IV. APPLICABLE LAW [ 77 ] Parties who wish to examine a witness must serve the witness with a summons to appear, which is commonly referred to as a subpoena. [73] Section 698(1) Cr. C . states the conditions required to issue a summons in the following terms: 698

(1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence. [ 78 ] Those summoned may ask for the subpoena to be quashed if they deem that they have grounds to this end. In such a case, it is incumbent upon the party issuing the subpoena to show that the person is likely to give material evidence. [ 79 ] It is worth pointing out that the English version of s. 698(1) Cr.

C . characterizes this evidence as “material”, [74] or in other words, evidence that tends to establish a fact that is relevant to one or more issues in dispute. As Watt J. writes in R. v. Luciano : [75] “Evidence is material if what it is offered to prove or disprove is a fact in issue”. [76] [ 80 ] In principle, only the Superior Court has jurisdiction to quash a subpoena if the witness is not likely to give material evidence according to the terms of s. 698(1) Cr.

C . [77] [ 81 ] The ordinary law, however, confers upon the courts, including provincial courts, a discretionary power to control their own processes and prevent its abuse. This power includes excusing a witness pursuant to s. 700(2) Cr.

C ., [78] which states: 700(2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial court judge. [ 82 ] Thus, though they do not have jurisdiction to quash a subpoena, provincial court judges may nevertheless excuse a witness in accordance with the wording of s. 700(2) by using a similar test, that of the “material evidence”, as the Ontario Court of Justice points out in R. v.

Maleki : [79] Test on an Application under s. 700(2) of the Criminal Code My power to excuse witnesses under s. 700(2) of the Criminal Code relates to my duty to make determinations about the admissibility of evidence, and also my power to protect and control the processes of the court: Rashwan , supra paras 7-18. Contrary to Mr. Lindsay’s submissions, the jurisprudence indicates that, in these circumstances, the litigant seeking to subpoena the witnesses must show how the

proposed witness is likely to give material evidence in the proceeding: Rashwan, supra para 9. Similar to the test used to quashsubpoenas, the court has jurisdiction to excuse witnesses where a person is unlikely to give material evidence, or where the subpoenawas used for an improper purpose such that it amounts to an abuse of process.

Where the right to call a witness is challenged, “it is notsufficient for the party proposing to call the witness to merely allege that the witness can give material evidence, but rather the onus is onthe accused in this case to establish that it is likely that (the witness) can give material evidence:” Re. Stupp and The Queen (l982), (ON SC), 70 C.C.C.(2d) 107 at p. 121 cited with approval by the Ontario Court of Appeal in R. v.

Harris (l994), (ON CA), 93 C.C.C. (3d) 478. “Likely,” put another way, means “probably have evidence material to the issuesraised:” ibid. [80] [83] Consequently, when the person subpoenaed asks to be excused within the meaning of s. 700(2) Cr.

C., the party who had thesummons issued must make the same demonstration as that required to quash a subpoena. [84] This demonstration must be made on a balance of probabilities.[81] To allege that the witness may have material evidence togive is insufficient.[82] The party requesting the testimony must establish that it is reasonably likely that the evidence given by thewitness will help to resolve the issue or issues in dispute.[83] [85] The rule is stricter when the summons is for the counsel of record, whether that concerns the prosecution or the defence.[84] Inthis scenario, the party behind the subpoena must not only show that the testimony would likely be relevant to an issue in dispute, butalso necessary or even “absolutely necessary”.[85] [86] The reason for the criterion of necessity lies in the importance of maintaining the integrity of the legal process, by avoidingplacing an attorney in the position of both representing a party and testifying in that same dispute.[86] The courts are thereforedisinclined to agree to let such a scenario occur.[87] [87] As the Superior Court of Quebec pointed out in Kyling:[88] Criminal litigation would be impossible if Crown counsel had the unrestricted right to call defence counsel as a witness or if defencecounsel had the unrestricted right to call Crown counsel as witness.

There is a persuasive burden on the lawyer who seeks to force opposing counsel to go into the witness box and relinquish his role ascounsel.

The persuasive burden is to show relevance and necessity.[89] [88] The case law has recognized that even though counsel for a party is a compellable witness, he or she will be called to testifyonly in exceptional cases and in the absence of any other alternative.[90] [89] In R. v. 1504413 Ontario Ltd.,[91] the Court of Appeal for Ontario dealt with the necessity criterion in the following terms: Although not exhaustive, necessity in this context will involve considerations such as the importance of the issue for which the testimonyis sought, the degree of controversy surrounding this issue, the availability of other witnesses to give the evidence or other means bywhich it may be accomplished (such as the filing of an agreed statement of fact), the potential disruption of the trial process and theoverall integrity of the administration of justice.[92] [90] Finally, the courts have often pointed out that the testimony sought must not be a “fishing expedition”.[93] On this subject, theCourt of Appeal for Ontario in R v.

Elliott adopted the remarks made in R. v. Stupp, Wintrope and Manus concerning the summons ofCrown counsel assigned to the case, quoting the following excerpt:[94] In my opinion, an accused person should not be permitted to call Crown counsel to conduct a fishing expedition or to examine in thehope that something might turn up that would assist him on the issue … .[95] V. ANALYSIS [91] Mtre Rouillard is no longer the prosecutor assigned to the case at issue. He withdrew from the case in March 2016, nearly 20months before the start of trial.

Strictly speaking, Mtre Rouillard is not counsel to a party to the dispute, despite still being in the employof the DCPP.

[92] The following preliminary question therefore begs to be asked: in the circumstances, must the accused still demonstrate that thetestimony of Mtre Rouillard is necessary (or absolutely necessary) in addition to being likely to give material evidence within themeaning of s. 698(1) Cr.

C.? [93] The Court has found no analogous situations in Quebec case law, but did find relevant judgments from other Canadianprovinces. [94] Some judgments appear to indicate that the “necessity” criterion does not apply when the subpoena concerns counsel assignedto a related case or counsel that is not in any way involved in the dispute.[96] [95] However, judgments dealing specifically with the summons of counsel formerly assigned to the case, as in the case of MtreRouillard, apply the “necessity” criterion.[97] [96] The Court recognizes, however, that the summons issued for Mtre Rouillard does not raise the same concerns as a subpoena forthe counsel of record.

Mtre Rouillard’s testimony would not disqualify Mtre Dinelle or unduly interfere with the conduct of the hearing. [97] This observation leads the Court to favour the approach taken by the Ontario Superior Court of Justice in R. v. Chenier.[98] Inthat case, the summons had been issued for two counsel: Mr. Moors, counsel of record, and Ms. Meloche, counsel in a related case. TheCourt applied the criterion of “necessity” to the testimony of Ms. Meloche, while making the following distinctions: The questions that arise then are whether the defence has made a sufficient showing that either Mr. Moors or Ms.

Meloche probably hasmaterial evidence to give and, if so, whether it is necessary that he or she be subpoenaed in order to produce that evidence. Calling one'sadversary as a witness is particularly undesirable [see: R. v. St. Laurent (1984), (QC CA), 11 C.C.C. (3d) 74 (Que.C.A.) at p. 76 and authorities cited therein.] but I include Ms. Meloche in the ambit of the secondary question notwithstanding that she isnot trial counsel in the case before me. The prospect of her having to testify in the case does not have the same potential to delay,interrupt or interfere with the prosecution of the case.

There ought not to be as much of a requirement for "necessity" in her case, becauseof that. It cannot, nevertheless, but risk straining the necessary relationships of trust and confidence as well as the duties andresponsibilities that surround and bind members of the bar when any barrister is called upon to go into the witness box.

That is not to saythat trial lawyers enjoy any special immunity from giving courts the benefit of their evidence where it is necessary, but it should bereserved for those cases where it is determined that not only is it likely that the barrister will give material evidence, but also that it isnecessary to obtain it from that person.[99] [98] This excerpt was in fact quoted with approval in Polo[100] and Chan,[101] two cases where the Alberta Court of Queen'sBench found that the testimony of the Crown counsel previously assigned to the case did not meet the necessity test. [99] In this case, the Court concludes that the necessity test applies to the testimony of Mtre Rouillard, but less onerously than in thecontext of a summons issued to the current counsel of record. [100] This question being answered, it is now a question of determining whether the accused has discharged the burden of proofincumbent upon him. [101] The Court suggests discussing in turn the points on which the accused intends to have Mtre Rouillard testify, enumerated underparagraph 75 of this judgment.

Some of the points will be examined individually while others will be grouped by theme. - Points (a), (b), and (c): the postponements at the preliminary inquiry stage [102] The accused submits that the testimony of Mtre Rouillard will help the Court better understand the reasons surrounding thepostponements of September 11, 2015, November 26, 2015, and February 25, 2016, which will allow it to identify who caused thedelays at issue in the context of the “Jordan” portion of RD2.[102] [103] First things first: Crown counsel agreed that the time between September 11, 2015, and November 26, 2015, is attributed to him

and must be included when calculating the net delay. [103] This period is, therefore, not at issue. [ 104 ] Furthermore, Mtre Rouillard’s sworn statement already states the ground for the requested postponement: the prosecution wanted to go through the victim’s medical records to assess whether their contents might have an impact on the nature of the charges. [ 105 ] This assertion is consistent with the remarks of Mtre Rouillard at the hearing of September 11, 2015.

As a reminder, on that date, Mtre Rouillard informed the Court that the investigator had given him a rather voluminous copy of the medical records that he would have to review. He wanted the next date to be pro forma by mutual agreement so that he could disclose the evidence to Mtre Trempe and perhaps make [ translation ] “a decision about what to do next.” [ 106 ] The situation is different with respect to the postponements of November 26, 2015, and February 25, 2016. The prosecution maintains that the delays caused by these postponements are attributable to the accused. The accused disagrees.

There is therefore a disagreement between the parties on this issue, a disagreement the Court must decide. [ 107 ] During the hearing of November 26, 2015, Mtre Rouillard said he agreed with Mtre Trempe’s assertion that [ translation ] “there is still evidence to disclose and things to check with the complainant”. [ 108 ] Although Mtre Rouillard indicated in his sworn statement that he was informed by Mtre Trempe that he had documentation in his possession concerning the victim’s mental health, he did not mention that the eventual disclosure of this documentation by the defence was the reason for the requested postponement on November 26, 2015. [ 109 ] In fact, Mtre Rouillard’s sworn statement does not address this request for postponement.

The remarks of November 26, 2015, in the courtroom by Mtre Trempe are therefore uncontradicted. [ 110 ] Accordingly, the evidence adduced for RD2, including Mtre Trempe’s detailed affidavit and his testimony viva voce , do not allow the Court to conclude that the attorneys offer diametrically opposed versions of the reasons for this postponement. [ 111 ] Similarly, the Court cannot infer that the postponement of November 26, 2015, was due to the anticipated disclosure of evidence by the defence to the prosecution. [ 112 ] These observations apply in much the same way to the request for postponement of February 25, 2016, during which Mtre Rouillard once again stated that he had to meet with the victim. [ 113 ] The testimony of Mtre Rouillard is therefore unlikely to give material evidence to help decide the disagreement between the parties.

Nor is it necessary. The Court is able to assess the reasons for the postponements of November 26, 2015, and February 25, 2016, with the evidence presently available. [ 114 ] Moreover, as Vauclair J.A. writes in R. c. Rice , [104] in the context of a Jordan application, the observations of counsel are acceptable and sufficient to inform judges of the respective positions of the parties and to decide a disagreement.

Formal evidence or a voir dire are not always required. [105] [ 115 ] The accused also seeks to understand why Mtre Rouillard did not insist on holding the preliminary inquiry or object to the postponements when the victim’s intentions were, in his opinion, clear. [106] [ 116 ] Mtre Rouillard thereby violated the directives of the DCPP, which specifically require that prosecutors limit requests for postponement to exceptional situations. [107]

[ 117 ] With respect, the objective of the accused here is not to help the Court to resolve an issue in dispute, but to explore the reasons why the prosecution wanted to meet with the victim. [ 118 ] The accused thereby hopes to contradict Mtre Rouillard’s assertion that the victim wanted to proceed with the case and/or show that he wanted to meet with her because he had reservations about the credibility of her version. [ 119 ] The Court has no real reason to doubt the truth of the assertion made by Mtre Rouillard that the victim wanted to proceed with the case.

The victim was present in Court on September 11, 2015, the date scheduled for the preliminary inquiry. She was also present to testify at trial. [ 120 ] The accused also suggests that Mtre Rouillard wanted to confront the victim with contradictions to encourage her to consent to the accused signing an undertaking pursuant to s. 810 Cr. C .

This argument is based on the fact that, at the time, Mtre Rouillard had in his possession the form from the victim’s forensic kit and her medical records. [ 121 ] The medical records are subject to the Mills regime and were never the subject of an application for production pursuant to s. 278.1 et seq . Cr. C . The Court is unaware of their contents.

To argue that they might contain elements that would contradict the victim’s version is speculative. [ 122 ] As for the form from the kit, the Court agrees, without ruling definitively, that at first glance it contains information that would contradict certain elements of the version given by the victim at trial. This observation, however, does not ground an inference that Mtre Rouillard wanted to meet with the victim in 2016 to raise the existence of contradictions. The accused’s argument rests on conjecture. [ 123 ] Mtre Rouillard does not explain why he had to meet with the victim to check certain things.

Mtre Trempe also reports that the victim was difficult to reach at the time and that Mtre Rouillard appeared concerned. Mtre Trempe hoped that the file would end through an undertaking pursuant to s. 810 Cr. C . and was under the impression that this was a possibility.

He confirmed during his testimony, however, that Mtre Rouillard never suggested to him that the case be closed in this way or tell him that he would check with the victim whether this outcome might be considered. [ 124 ] It is therefore inaccurate to state that the Court has before it an allegation made by Mtre Trempe that the prosecution did not believe in the case and wanted to close it through an undertaking under s. 810 Cr. C . [108] [ 125 ] Instead, it is an impression that, alone, cannot justify convening Mtre Rouillard to explain what is already found in his sworn statement.

It should be recalled that Mtre Rouillard stated under oath that he had always refused to settle the case through s. 810 Cr. C . since the victim’s intentions were clear. [ 126 ] By claiming that he wants to know the reason why Mtre Rouillard did not insist on holding the preliminary inquiry or object to the postponements, the accused ultimately hopes to bolster the argument that the prosecutor was complicit in the victim’s probable perjury at trial.

With respect, this approach is tantamount to a fishing expedition. [ 127 ] Moreover, the accused is not barred from arguing, rightly or wrongly, that Mtre Rouillard did not comply with his duty to limit requests for postponement to exceptional situations, as provided in directive REM-1.

The accused may make this argument based on Mtre Rouillard’s sworn statement (and the recording of the hearings), without it being necessary to resort to his viva voce testimony. [ 128 ] That being the case, the Court finds it difficult to imagine that a violation of a directive such as the one alleged may constitute conduct that is offensive to societal notions of fair play and decency. [109] - Points (d), (e), (f), (g), and (i): the victim’s medical records [ 129 ] According to the accused, Mtre Rouillard’s testimony would offer material evidence of the reason why the prosecution wanted to obtain the victim’s medical records. [110]

[ 130 ] Mtre Rouillard’s sworn statement already states the reason why the prosecution took this approach. It was to check whether the victim had caught an STI during the assault. The accused is not happy with this explanation.

What is more, the accused doubts its veracity. [ 131 ] For the accused, if Mtre Rouillard had truly wanted evidence of an STI being transmitted, he would instead have asked the LSJML to analyze the samples taken when the forensic kit was prepared, which he did not do. [ 132 ] The Court does not agree with this argument. [ 133 ] After reading the form from the kit, it is indisputable that the purpose of the samples was also to detect the presence of STIs.

The fact that they did not undergo expert appraisal does not call into question the reason given by Mtre Rouillard to obtain the medical records. [ 134 ] Perhaps the answers sought were already in there, whereas the samples required the additional step of an analysis to provide the answers. The Court does not know, but cannot exclude this possibility.

In any event, the accused’s argument is not sufficiently convincing to cast doubt on the veracity of Mtre Rouillard’s assertion. [ 135 ] The Court must admit, however, that it is curious that the prosecution sought to obtain the medical records to check whether the victim had caught an STI knowing that the accused was wearing a condom during the assault, a fact that is admitted by the accused and the victim. [ 136 ] To doubt Mtre Rouillard’s integrity based merely on this observation is not a step that the Court is willing to take.

In fact, Mtre Trempe acknowledges in his testimony that the question of an STI was discussed only informally with Mtre Rouillard. [ 137 ] Be that as it may, the testimony of Mtre Rouillard on the reason for obtaining the medical records would not give any material evidence regarding an issue in dispute, certainly not in relation to the “unreasonable delay” and “disclosure” portions of RD2. [ 138 ] By addressing this matter with Mtre Rouillard, the accused hopes to catch him out and thereby shape the “abuse of process” portion of his motion.

Again, this is a fishing expedition. [ 139 ] There is also no reason to allow the accused to have Mtre Rouillard testify about the context and conversations surrounding the victim consenting to provide the prosecution with her medical records. [111] [ 140 ] The Court fails to see how it would be relevant. By raising the meeting with the victim on March 19, 2015, in his sworn statement, Mtre Rouillard has already stated the context in which he obtained her consent.

Moreover, S/D Fournier also testified on this issue. [ 141 ] The accused also seeks to know the reasons for which the medical records, or parts thereof, that were in the possession of the prosecution were likely relevant to the accused’s case. [112] [ 142 ] From the evidence adduced, it appears that Mtre Rouillard initially appeared willing to disclose the victim’s medical records to Mtre Trempe.

That was the latter’s impression. [113] It was after speaking with an assistant chief attorney that Mtre Rouillard informed Mtre Trempe that he would have to proceed by motion to obtain the medical records. [ 143 ] There is no written correspondence between the parties to this effect. But it is irrelevant whether Mtre Rouillard announced this officially. [114] Mtre Dinelle did so in an email dated May 11, 2016.

[ 144 ] The accused is of the view that Mtre Rouillard could explain the likely relevance of the medical records, probably due to the fact that he was initially willing to disclose them. [ 145 ] Mtre Rouillard’s successor, Mtre Dinelle, now argues that these records are clearly irrelevant and refuses to offer more specific information as to their nature. [ 146 ] Obviously, the accused is trying to obtain from Mtre Rouillard the information that Mtre Dinelle refuses to disclose, to show that this refusal is abusive.

The Court cannot allow this way of proceeding. [ 147 ] That does not mean, however, that Crown counsel complied with his obligations under s. 278.2(3) Cr. C . In this respect, in R. v. Mills , [115] the Supreme Court indicated that this provision imposes on the prosecutor the obligation to notify the accused of the private documents in its possession, to allow the accused the opportunity to present a motion for disclosure.

The prosecution must ensure that the information relating to the date and context are provided so that the documents can be sufficiently identified. [116] [ 148 ] The accused is free to argue that Crown counsel continues to breach his obligations under s. 278.2(3) Cr. C. and that this breach is akin to abuse of process. The testimony of Mtre Rouillard would not give any material evidence on the subject. Nor is it necessary. [ 149 ] It is worth recalling that it is Mtre Dinelle, not Mtre Rouillard, who maintains that the medical records are clearly irrelevant.

It should also be pointed out that Mtre Trempe was nevertheless officially informed of their existence and the fact that they were in the possession of the prosecution on May 11, 2016. [ 150 ] As he wrote in his detailed affidavit, Mtre Trempe was of the view that he would not have been able to establish that the records were completely or partly likely relevant to an issue in dispute of the victim’s capacity to testify. [117] [ 151 ] Finally, to justify Mtre Rouillard’s testimony on the medical records, the accused submits that he could provide material evidence concerning the impact that the information contained in the records had on his assessment of the case. [118] [ 152 ] First, the evidence does not reveal the existence of a concrete impact on the prosecutor’s assessment.

Second, it is clear that the accused suspects that the medical records contain exculpatory information. He is attempting to know more about their contents, thereby circumventing both Mtre Dinelle’s refusal to provide particulars and the requirements of the Mills regime. [ 153 ] Insofar as the approach considered rests on suspicion and aims to indirectly obtain what the accused cannot obtain directly, it is once again a fishing expedition. The ground submitted is without merit. - Points (

h) and (j): the forensic kit [ 154 ] The accused maintains that Mtre Rouillard is likely to give material evidence on the reason why the form from the forensic kit wasn’t disclosed. [119] In his view, this testimony will help the Court to resolve the question of whether the right to disclosure of evidence was violated and whether there was abuse of process due to the deliberate refusal to disclose the form in order to [ translation ] “win” at trial. [ 155 ] The Court does not see how the testimony of Mtre Rouillard would be likely to give material evidence on the question of whether the right to disclosure was violated.

It has already been clearly established that neither Mtre Rouillard nor Mtre Dinelle disclosed the form from the forensic kit to the accused, an obligation that was incumbent upon them. [ 156 ] Nor is there is a sufficiently supported factual basis to argue that Mtre Rouillard, knowing that the form could contain elements that contradicted the victim’s version, deliberately failed to disclose to [ translation ] “win” at trial. [ 157 ] First, it has not been adduced into evidence that Mtre Rouillard expressed any such refusal to disclose the form. Mtre Trempe

did not make any request regarding the forensic kit (including the existence, or lack thereof, of an expert appraisal). The first request tookplace a few months after the trial, through the accused’s new counsel, when Mtre Rouillard had ceased being in charge of the conduct ofthe file for over two years. [158] It was Mtre Dinelle, not Mtre Rouillard, who categorically refused to disclose the documents relating to the forensic kit becausehe alleged that they were subject to the Mills regime, a position he adopted as early as May 11, 2016, as attested by his email to MtreTrempe.

The ground for non-disclosure of the form is therefore already known to the Court. [159] The Court also wants to point out that Mtre Rouillard stopped managing the case well before the victim was called to testify,thereby adding elements that could contradict the information in the form. [160] Certainly, the accused asserts that there are also certain contradictions between the information in the form and the out-of-courtstatement given by the victim to police officers, a statement that Mtre Rouillard had in his possession.

The Court is not able to assess themerit of this assertion because the statement in question was not adduced into evidence. [161] The testimony of counsel on a question concerning disclosure of evidence is not common. Here is what Côté J.A had to sayabout it in Kyling:[120] Concerning Me Doire's testimony, it appears evident that she could give relevant evidence on the issue of disclosure, as could anyCrown prosecutor in charge of a file, but it appears that something more is required. If not, Courts would be almost automaticallyinvolved in prosecutorial testimony for any complaint of non-disclosure.

Even in the light of Stinchcombe, (SCC), [1991] 3 R.C.S. 326, where Justice Sopinka referred to the possibility of vivavoce evidence that may be required in certain cases, a certain factual basis regarding the necessity of that proposed testimony must befound by the trial judge.[121] [162] Also, in Clancey,[122] Watt J. (then of the Ontario Superior Court of Justice) dismissed a motion to have the prosecutor testifyon the late disclosure of evidence.

The judge relied on the following excerpt from Durette:[123] The mere fact that the Crown made a decision does not, without more, form a basis for an allegation of bad faith.

Nor does it require atrial judge to allow an evidentiary hearing to inquire into why the discretion was not exercised differently.[124] [163] In the absence of a factual basis supporting that Mtre Rouillard was in bad faith, it is not reasonably likely that his testimonycould give material evidence of the existence of abuse of process related to the non-disclosure of the form from the forensic kit. [164] The accused may also submit that the prosecution violated its duty to disclose without it being necessary to have Mtre Rouillardtestify.

The same is true of the argument that Crown counsel was complicit in the victim’s perjury at trial.

Mtre Rouillard, it should berecalled, was no longer involved with the case when the victim testified. [165] The accused argues that Mtre Rouillard could give material evidence concerning the reason why he did not return the calls andemails of S/D Fournier regarding the analysis of the samples from the forensic kit. [166] The accused wishes to shore up the argument that Mtre Rouillard was grossly negligent by failing to have the samples takenduring the victim’s forensic examination appraised by an expert and by failing to ensure that they were conserved in an appropriate area.This argument relates to the allegations of abuse of process. [167] According to Paquette’s notes, between January 22 and March 24, 2015, S/D Fournier attempted in vain to obtain instructionsfrom Mtre Rouillard concerning the opportunity of having the samples appraised by an expert.

It was only on March 24, 2015, that S/DFournier informed the LSJML that the analyses would not be required because the accused had admitted to having sexual intercourse

with the victim on the night of the events. [ 168 ] During his testimony, S/D Fournier indicated that he had a conversation with Mtre Rouillard to determine whether certain investigative steps should be taken, in particular, concerning the seized clothing. He did not remember on what date they had this conversation or everything that was said. [ 169 ] S/D Fournier also could not say whether it was Mtre Rouillard who decided not to have the samples appraised by an expert.

He did remember, however, that he and Mtre Rouillard had agreed that the outcome of the case rested on the notion of consent (or perception of consent) insofar as the sexual act had been admitted by the accused. [ 170 ] In his sworn statement, Mtre Rouillard did not address the subject of the forensic kit or the absence of expert appraisal. In spite of all this, the evidence grounds an inference for the two following elements:

(1) Mtre Rouillard took

part in the decision not to have the samples analyzed; (2) this decision was motivated by the fact that the accused had admitted to having sexual intercourse with the victim on the night of the events. [ 171 ] In these circumstances, knowing why Mtre Rouillard did not respond to the requests of S/D Fournier between January 22 and March 24, 2015, is irrelevant.

It has no impact on the question of whether the right to disclosure was violated or whether there was abuse of process. [ 172 ] One thing is certain, no analysis was performed and it appears that the samples were not stored in an area conducive to expert appraisal. The accused could argue that the prosecutor failed to conserve evidence and that this conduct is akin to abuse of process, without Mtre Rouillard having to explain why he did not return calls or messages. [ 173 ] The Court need not rule on the merit of these arguments today.

It is far from obvious, however, that the decision to not have the samples appraised by an expert may, alone, constitute conduct undermining the integrity of the legal process and thereby justify as draconian a remedy as a stay of proceedings. - Point (k): sworn statement [ 174 ] The accused argues that the testimony of Mtre Rouillard is important to know why the sworn statement was prepared and to assess its veracity and reliability. [ 175 ] The reason why the sworn statement was prepared has already been raised earlier in this judgment.

The statement was written to enlighten the parties and, by extension, the Court on the context in which the postponements at issue were requested. [ 176 ] The drafting of a sworn statement was not vital. The information therein could have been brought to the Court’s attention through the oral submissions of Mtre Dinelle, after he spoke with Mtre Rouillard. [ 177 ] By sending this statement to the accused, Crown counsel attempted to resolve the dispute on certain dates, an exercise that the Court deems praiseworthy in the post- Jordan era.

The accused’s argument that Crown counsel prepared this statement to win at any cost is without merit. [ 178 ] Because the Court is already aware of the reason why the sworn statement was prepared, to have Mtre Rouillard testify to speak about it at greater length would be pointless and would add nothing to the resolution of the issues in dispute. [ 179 ] Furthermore, for the following reasons, the Court does not share the accused’s point of view that Mtre Rouillard’s testimony would give material evidence on the veracity and reliability of the sworn statement. [ 180 ] The fact that a sworn statement is filed does not systematically grant a party the right to cross-examine the declarant, including

in the context of contesting a summons. [125] [ 181 ] The accused calling into question the veracity of the sworn statement is based on suspicion and speculation. [ 182 ] The accused doubted the veracity of the statement even before obtaining the form from the forensic kit and re-amending RD2 to include allegations of abuse of process by the prosecution.

In fact, that summons was issued several weeks before the motion was re- amended. [ 183 ] The evidence adduced, including the content of the sworn statement, does not reveal that Mtre Rouillard was in bad faith or that his conduct was highly reprehensible The Court adds that the content of the sworn statement is consistent with the evidence adduced by Mtre Trempe in several respects. [ 184 ] The allegations of abuse of process concerning the management of the case by Mtre Rouillard are not sufficiently supported by the evidence to justify calling into question the veracity (or reliability) of his sworn statement. [ 185 ] In the absence of evidence or apparent bad faith or ulterior motives, judges must rely on the assertions of attorneys, who are officers of justice. [126] There is a presumption that prosecutorial discretion is exercised in good faith. [127] [ 186 ] Accordingly, to allow the accused to call Mtre Rouillard to testify on the veracity (or reliability) of his statement would be tantamount to encouraging a fishing expedition, which is proscribed by case law. [ 187 ] Finally, we should not lose sight of the fact that Mtre Rouillard is not the one on trial.

VI. CONCLUSION [ 188 ] In light of the above, the Court concludes that the accused has not discharged his burden of proving that the summons issued to Mtre Rouillard meets the test set out under s. 698(1) Cr. C . and the principles developed in the applicable case law. FOR ALL THESE REASONS, THE COURT: GRANTS the motion RP3. EXCUSES Mtre Paul Rouillard within the meaning of s. 700(2) Cr. C . and thereby exempts him from testifying in the hearing on the motion for a stay of proceedings or mistrial (RD2). DAVID SIMON, J.C.Q. Mtre Myriam Andraos Counsel for the accused Mtre Alexis Dinelle Mtre Jasmine Guillaume

Counsel for the prosecution Mtre Tristan Desjardins Counsel for the attorney concerned by the allegations of incompetence