R v Zanolli, 2018 MBCA 66

Citation: R v Zanolli, 2018 MBCA 66 Date: 20180615 Docket: AR17-30-08804 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN: HER MAJESTY THE QUEEN ) E. A. Wach ) for the Appellant ) Respondent) R. D. Lagimodière ) for the Respondent- and - ) ) Appeal heard:RICCO ZANOLLI ) January 10, 2018 ) ) Judgment delivered: (Accused) Appellant) June 15, 2018 hamilton JA [1] The accused appeals his conviction for assault cause bodily harm arising from a violent prison altercation amonginmates.

The trial judge rejected the accused’s defence of self-defence. [2] The Crown relied on a surveillance video (the video) from the prison. After the trial, defence counsel discovered thatan enhanced version of the video (the second video) existed that provided better viewability and functionality. The second video couldonly be viewed with the use of specific proprietary software. [3] While the accused raises other grounds of appeal, the real issue is whether he is entitled to a new trial because thesecond video was not used at the trial and the Crown did not specifically advise defence counsel of its existence.

The accused assertstwo grounds of appeal in this regard: 1. the second video should be admitted as fresh evidence under Palmer v The Queen, (SCC), [1980] 1 SCR 759 as it could “reasonably . . . be expected to have affected the result” (at p 760) of the trial; alternatively,2. applying the Taillefer/Dixon test (see R v Taillefer; R v Duguay, 2003 SCC 70; and R v Dixon, (SCC), [1998] 1 SCR244), the second video should be admitted because there was a reasonable possibility that it would have affected the result of the trial orthe fairness of the trial process.

The second ground requires the accused to demonstrate, as a threshold issue, that the Crown breachedhis right to make full answer and defence under

section 7 of the Canadian Charter of Rights and Freedoms (the Charter) by failing toprovide meaningful disclosure of the second video. [4] I would dismiss the appeal. For the reasons that follow, I would not admit the second video as fresh evidence underthe Palmer test. I conclude that the Crown did not fail to provide meaningful disclosure of the second video. Therefore, theTaillefer/Dixon test is not engaged. I would dismiss the accused’s other grounds of appeal.

The Trial [5] At the trial, the Crown entered the video into evidence and a parole officer from the prison testified to explain thevideo and its images. The trial judge noted several times during the trial that the quality of the video was not very good. [6] The video shows the accused stabbing another inmate (Williams) in the back in the hallway outside the accused’scell (the cell). The hallway leads into a common room. [7] The accused argued self-defence. He did not testify.

Much of the trial was about what could be seen on the video,including whether Williams and two other inmates (Duck and Passage) had objects or weapons in their hands as they entered the cell.

The accused relied on the observations to be made from the video and argued that certain inferences should be drawn from those observations, including that force, or threat of force, against the accused occurred in the cell. See sections 34(1) and (2) of the Criminal Code (the Code ): Defence — use or threat of force 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. Factors 34

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. The Video [ 8 ] The video shows Williams entering the cell, followed by the accused. Within a few seconds, Passage and Duck quickly enter the cell. Passage lifts his shirt up as he enters the cell and Duck appears to be taking something out of his pocket before entering the cell. About 22 seconds later, Duck leaves the cell, then turns back towards the cell. Passage then leaves, followed immediately by Williams, who runs up the hallway past Passage and Duck, with the accused chasing him. Neither Passage nor Duck attempt to impede the accused.

[ 9 ] The accused lunges towards Williams in the corner of the hallway, making a couple of downward stabbing motions towards Williams’s back. When Williams gets away, the accused is assaulted by numerous inmates, including Passage, Duck and eventually Williams too. Other Evidence [ 10 ] Williams suffered a puncture wound to his back and a laceration to his mid-scalp. The accused suffered multiple stab wounds to the head and neck. [ 11 ] Blood was found in the cell, but there is no evidence as to whose blood it is. The Trial Judge’s Reasons [ 12 ] The trial judge accepted that

an act or acts of violence likely occurred in the cell prior to the accused stabbing Williams. He agreed that it would not be unreasonable for the accused “to have fought back if he had been assaulted or reasonably believed that he was going to be assaulted by these three other inmates”.

However, he concluded that there was “no evidence suggestive of such a conclusion before the court.” He stated that such a scenario was “but one possibility amongst several, speculative possibilities.” [ 13 ] The trial judge considered the factors listed in section 34(2) of the Code relevant to the reasonableness of the accused’s actions. He indicated that: • he was unable to determine the nature of any purported force or threat made on the accused (see section 34(2) (

a) of the Code ). • he was unable to determine the extent to which any purported force was imminent (see section 34(2) (

b) of the Code ). • the accused could have run into the common room, where he would have been visible to guards, if he were seeking safety (see section 34(2) (

b) of the Code ). • the accused was hotly pursuing Williams at the time of the stabbing and was armed with a shank (see section 34(2) (

c) of the Code ). • he had no idea whether Williams, Passage or Duck used, or threatened to use, a weapon before the stabbing incident as there was “simply no evidence with respect to this point” (see section 34(2) (

d) of the Code ). • he could not infer why the accused allegedly believed he needed to stab Williams in the back rather than run into the common room (see sections 34(2) (b), 34(2)(

g) of the Code ). • he did not know why the accused was chasing Williams (see section 34(2) (f.1) of the Code ). • he rejected the defence argument that Williams was much larger than the accused, stating that, “Given the fact that Williams was clearly fleeing from [the accused] . . . this concern simply has no air of reality in the context of the presenting evidence” (see section 34(2) (

e) of the Code ). [ 14 ] The trial judge considered that the accused may have been assaulted in the cell, but indicated that it was unclear why the accused would stab Williams in response, unless it was

an act of vengeance. He stated that all rational inferences indicated that Williams was not an imminent threat at the time he was stabbed.

The trial judge found that, “It was more of a decisive and blatantly offensive injury meant to kill or cause grievous bodily harm than to cause fear and merely repel a larger opponent” and that “the pursuit and the stabbing certainly appear on their face to have been more of an aggressive move than a defensive one.” [ 15 ] He concluded that there was no evidence from which he could infer that the accused believed that he had to wield a knife to defend himself and that the evidence only suggested that at the time of the stabbing, the accused was acting out of anger, not self-defence.

The Fresh Evidence Motion [ 16 ] The accused filed a fresh evidence motion to admit the second video on appeal. The fresh evidence was the affidavit of a legal assistant (the legal assistant) with defence counsel’s law firm.

She explains, on information and belief, how defence counsel learned of the second video and in particular, the involvement of another lawyer assisting defence counsel (the associate) who discovered the second video. [ 17 ] Her affidavit includes information about the prosecution (the other prosecution) of the inmates who attacked the accused in the hallway after he attacked Williams and that the second video was used in the other prosecution. [ 18 ] The affidavit attached a compact disc containing the second video. [ 19 ] The Crown does not challenge the legal assistant’s evidence.

In response, it filed the affidavit of the Crown attorney for the accused’s trial. [ 20 ] Prior to the appeal hearing, counsel agreed that the panel should review the affidavits and view the second video using the necessary software. The second video clearly has better viewability and functionality than the video. The Fresh Evidence

[ 21 ] When assisting defence counsel with preparing for the appeal, the associate reviewed the compact disc received from the Crown prior to the trial. In addition to the file containing the video, he noticed that the compact disc included two other files with a “G64” suffix (the G64 files). Prior to the trial, defence counsel had not realized that there was a difference in the file formats. [ 22 ] The associate attempted to open the G64 files using a standard video player, but was unable to do so.

He then researched on the internet what type of file had a G64 suffix and determined that proprietary software from Genetec Inc. (Genetec) would be required to view the files. He downloaded the Genetec software from the internet, but was initially unable to get it to run on his computer. He was able to do so on another computer, which allowed him to view the G64 files that contained the second video. The second video had twice the resolution of the video. [ 23 ] The Crown’s office had assigned another Crown attorney (the other Crown attorney) to have conduct of the other prosecution.

Because the two prosecutions were related, the Crown’s office set up an information barrier between the Crown attorney for the accused’s trial and the other Crown attorney. Quite a few months before the accused’s trial, the other Crown attorney arranged for the defence counsel involved in the other prosecution to view the second video at the Crown’s office using the Genetec software. The second video was tendered as evidence at the preliminary inquiry for the other prosecution. [ 24 ] The Crown attorney for the accused’s trial was not aware of the second video.

She did not know that the second video was made available for viewing to the defence counsel involved in the other prosecution. Positions of the Parties and Issues [ 25 ] The accused does not claim mala fides on the part of the Crown.

He argues that the approach of the other Crown attorney in the other prosecution is indicative of what the Crown should have done in his case. [ 26 ] He says that the second video shows more detail than the video because of the higher resolution and that additional observations and inferences are available from viewing the second video. [ 27 ] His position is that he is entitled to a new trial under either the Palmer test for the admissibility of fresh evidence or alternatively, the Taillefer/ Dixon test arising from the Crown’s failure to provide meaningful disclosure to the accused. [ 28 ] The Crown’s position is that it did not breach its duty to provide meaningful disclosure and that the second video would not have affected the result because there is still an absence of evidence as to what happened in the cell immediately preceding the accused stabbing Williams in the back.

Therefore, it says that the accused has not met either the Palmer test or the Taillefer/ Dixon test. [ 29 ] The questions that arise in regard to the second video are: 1. Should the second video be admitted as fresh evidence under the Palmer test? 2. If the answer to question 1 is no, did the Crown breach its duty to provide meaningful disclosure to the accused? 3. If the answer to question 2 is yes, is the accused entitled to a new trial under the Taillefer/ Dixon test? [ 30 ] These are questions of first instance for this Court.

Therefore, there is no issue of an applicable standard of review. [ 31 ] The accused asserts other grounds of appeal unrelated to the above questions in regard to the second video. I would state them as follows: 1. The trial judge erred in law when he found that there was no air of reality to the argument of self-defence; and 2. The trial judge made palpable and overriding errors regarding the factual inferences to be drawn from the evidence, leading to an unreasonable verdict. [ 32 ] The Crown says that there is no merit to the other grounds of appeal.

The Other Grounds of Appeal [ 33 ] I will address the other grounds of appeal first, as I would dismiss them with brief comment. [ 34 ] The trial judge did not say in his reasons that there was no air of reality to the accused’s argument of self-defence, as argued by the accused. He addressed in detail the substance of the accused’s theory of self-defence and he ruled on the issues raised by the accused. The air of reality of the accused’s defence was not an issue at trial.

The one reference in his reasons to “air of reality” was in the context of the rejection of the relevance in these circumstances of the accused’s argument that Williams was a larger man than the accused. [ 35 ] I see no palpable and overriding errors by the trial judge regarding the factual inferences to be drawn from the video. He viewed the video and made findings of fact that were open to him on the evidence.

Specifically, I see no error, as asserted by the accused, that the trial judge erred in concluding that it was speculative that the accused faced a threat or an assault in his cell when there was no evidence as to what occurred in the cell. Therefore, the verdict was not unreasonable, as argued by the accused. [ 36 ] I turn now to the heart of this appeal. Should the Second Video be Admitted as Fresh Evidence under the Palmer Test?

[37] Fresh evidence may be admitted on an appeal if it is “in the interests of justice” to do so (see section 683(1)(

d) of theCode). Palmer sets out four criteria to be considered on such an application (at p 775):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [McMartin v The Queen, (SCC), [1964] SCR 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [38] The first criterion of “due diligence” (at p 775) is an “important factor to be considered in the totality of thecircumstances” (R v Hay, 2013 SCC 61 at para 64), but it “should not trump the other Palmer criteria” (R v JAA, 2011 SCC 17 at paras 8,26). Its purpose is to ensure finality and order in the criminal process (see Hay at para 64). Also see R v WRB, 2010 MBCA 116 at para4.

However, a failure to meet the due diligence criterion should not “override accomplishing a just result” (R v Warsing, (SCC), [1998] 3 SCR 579 at para 56).

Therefore, while important, the due diligence criterion is not a prerequisite to the admissionof fresh evidence. [39] The other three Palmer criteria are prerequisites to the admission of fresh evidence. [40] The relevance and credibility criteria will necessarily depend on the circumstances and issues raised in each case andwill involve “a certain weighing or qualitative assessment of the fresh evidence” (R v Henderson (WE), 2012 MBCA 93 at para 31, leaveto appeal to SCC refused, 35125 (11 April 2013)) in relation to the evidence heard at the trial.

The credibility criterion relates tothreshold, not ultimate credibility (see Henderson at para 31). [41] The fourth criterion is whether the fresh evidence could reasonably, when taken with the other evidence adduced attrial, be expected to have affected the result. This inquiry requires the court to consider the probative force of the evidence. Thequestion to be asked is “would the evidence possess such strength or probative force that it might, taken with the other evidence adduced[at trial], have affected the result?” (Palmer at 777). [42] The Crown acknowledges that the second video is relevant and credible.

It says that the accused has not demonstrateddue diligence, as the second video was available and the accused’s own evidence in support of his fresh evidence motion demonstratesthat high-resolution players were publicly available to enable defence counsel to watch the second video. [43] Most importantly, the Crown says that the accused has not shown that the use of the second video would have affectedthe result because the accused chased Williams and stabbed him in the back.

Furthermore, the Crown says that the second video stilldoes not provide any more evidence as to what occurred in the cell. [44] I agree with the Crown. [45] The accused has not demonstrated due diligence on his part. The evidence demonstrates that defence counsel failed toinvestigate the G64 files on the compact disc provided by the Crown, which contained the second video.

He did not appreciate that theG64 files disclosed by the Crown could contain different information than the file on the compact disc that he opened. [46] As stated by Rothstein J in Hay, “mere lack of knowledge on the part of trial counsel without any indication that heinquired into the possibility of obtaining and presenting the evidence is a factor against admitting the evidence for the first time onappeal” (at para 67). [47] Because the due diligence criterion is not a prerequisite and must yield if its rigid application might lead to amiscarriage of justice, the crucial criterion is whether the fresh evidence could reasonably be expected to have affected the result of thetrial when considered together with the other evidence adduced at trial. [48] Although I have viewed the second video, I need not make findings as to what can be seen from the second video.

Evenaccepting the accused’s arguments as to what can be seen on the second video, I am of the view that he has not demonstrated that thesecond video, if it had been viewed by the trial judge, could reasonably be expected to have affected the verdict. [49] The accused argues that four observations can be made from the second video that the trial judge would not have seenor considered from viewing the video at the trial.

These additional observations are: 1. an object in Duck’s hand as he enters the cell, and in his hand as he exits the cell prior to the accused’s assault on Williams; 2. an object in Williams’s hand as he exits the cell, and after the accused is assaulted in the corner of the hallway; 3. an object in Passage’s hand after he leaves the cell; and

4. blood around the neckline of the accused’s shirt after he and the other inmates leave the cell. [50] The accused submits that these observations show that Duck, Passage and Williams were armed when they entered thecell and that it would have been a reasonable inference “that the [accused] at that point would have perceived the men entering with armsdrawn at a minimum as a threat of force being made against himself”.

He says that this inference would have affected the outcome of thetrial as it would have addressed the issue of whether the accused had a reasonable belief that force, or a threat of force, was being madeagainst him.

This, he says, would have affected the trial judge’s conclusion that his actions were not done for the purpose of protectinghimself. [51] In this regard, the accused points out that when the trial judge considered whether he had a reasonable belief that forcewas used or threatened, the trial judge indicated that: 1. there was no evidence that the accused was assaulted or reasonably believed hewas going to be assaulted by the three other inmates; 2. the Court had no idea whether the other three inmates used, or threatened to use,a weapon as there was simply no evidence with respect to this point; and 3. that there was no evidence from which the Court could inferthat the accused believed he had to wield a knife in order to defend himself.

He also points to the trial judge’s comments duringargument that “we don’t know the three people had knives. I mean, you’re arguing a hypothetical at this point.” [52] The accused says that if the second video had been admitted at trial, he would have “easily refuted the [trial judge’s]suggestion that it was merely speculation or a hypothetical that the three men [had] weapons.” [53] The difficulty with these arguments is that, even if the accused had been assaulted in the cell, the trial judge still hadconcerns about the reasonableness of the accused’s response.

During the course of submissions and dialogue with the trial judge,defence counsel recognized this as “the meat of this case”, and acknowledged that the defence had to establish the reasonableness of theaccused’s response in the circumstances in order for self-defence to be successful. [54] Defence counsel essentially argued before the trial judge that it was reasonable for the accused to have stabbedWilliams because he was in a correctional facility where he could not close the door to the cell and barricade himself against armedinmates who wanted to cause him harm.

Therefore, he argued that it was consequently reasonable for him to try “to take [Williams] out”to eliminate him as a threat, rather than running into the common room and waiting for the guards to notice that he was under threat fromthe other inmates. [55] The trial judge rejected this argument, primarily because he concluded that there was no imminent threat to the accusedat the time the accused stabbed Williams in the back.

The crux of the trial judge’s decision was that there was no evidence as to whattranspired in the cell but, even if the accused had been assaulted in the cell, the accused had not established that his response was for thepurpose of defending himself nor that his response was reasonable in the circumstances. In this regard, the trial judge considered theoptions open to the accused, and stated: “I cannot infer from the evidence received at trial why [the accused] allegedly believed that heneeded to stab Williams in the back rather than run from the hallway to the common room”.

Furthermore, he stated: It is also not clear why [the accused] would stab Williams in response to an assault, if one occurred at all, except as

an act of vengeance. There is no evidence that suggests Williams was an imminent threat to [the accused] at the time he was stabbed.

Indeed, all rationalinferences point in the opposite direction. [56] The trial judge also noted that the wounds inflicted by the accused were not intended to be defensive in nature, but wereblatantly offensive injuries meant to kill or cause harm, rather than to repel an opponent. [57] Given the trial judge’s findings, I am not persuaded that the second video, taken with the rest of the evidence heard attrial, would have changed the result of the trial. [58] Therefore, I would dismiss the accused’s motion to admit fresh evidence. Did the Crown Fail to Provide Meaningful Disclosure of the Second Video?

If So, Should a New Trial be Ordered Pursuant to the Taillefer/Dixon test? The Taillefer/Dixon Test [59] The Taillefer/Dixon test applies where the Crown has allegedly failed to disclose relevant material prior to trial therebybreaching an accused person’s (the applicant’

s) right to make full answer and defence pursuant to

section 7 of the Charter. The testrequires the applicant to establish that: 1. the Crown has breached its duty to disclose; and 2. there is a reasonable possibility that theundisclosed evidence affected the outcome of the trial or affected the overall fairness of the trial process (see Dixon at para 34). Also see Taillefer at para 78. The remedy for such a breach is either a new trial or a stay under section 24(1) of the Charter. [60] Importantly, the first question of whether the Crown has breached its duty to disclose is a threshold matter.

Theapplicant must demonstrate that the Crown failed to disclose material by not meeting its obligations set out in R v Stinchcombe, (SCC), [1991] 3 SCR 326. If there is no such violation, that ends the matter and there is no need to engage in any furtheranalysis under the Taillefer/Dixon test. Did the Crown Fail to Provide Meaningful Disclosure of the Second Video? [61] In Stinchcombe, the Supreme Court established that the Crown has an obligation to disclose all relevant material in its

possession to permit the accused to make full answer and defence.

The Crown retains some discretion in determining the relevance ofthe materials, as well as “the manner and timing of the disclosure” (at p 340) (emphasis added). [62] The manner of disclosure chosen by the Crown must allow for “meaningful examination” (R v V (WJ) (1992), (NL CA), 72 CCC (3d) 97 at 108 (Nfld CA)) of the material by defence counsel and that the manner of disclosure must beregarded as “one of reviewable discretion on the part of Crown counsel” (ibid). [63] The accused has the burden to establish that the Crown’s disclosure was not meaningful (see R v Oszenaris, 2008NLCA 53 at para 21, leave to appeal to SCC refused, 32917 (23 April 2009)). [64] Both the Crown and defence counsel have corresponding obligations regarding disclosure.

As explained by Sopinka Jin Stinchcombe (at pp 340-41): The trial judge may also review the Crown’s exercise of discretion as to relevance and interference with the investigation to ensure thatthe right to make full answer and defence is not violated. I am confident that disputes over disclosure will arise infrequently when it ismade clear that counsel for the Crown is under a general duty to disclose all relevant information. The tradition of Crown counsel in thiscountry in carrying out their role as “ministers of justice” and not as adversaries has generally been very high.

Given this fact, and theobligation on defence counsel as officers of the court to act responsibly, these matters will usually be resolved without the intervention ofthe trial judge.

When they do arise, the trial judge must resolve them. [emphasis added] [65] In R v Petten (1993), (NL CA), 81 CCC (3d) 347 (Nfld SC (AD)), Gushue JA, for the Court,addressed the obligation of defence counsel (at p 350): The defence must be made aware of the existence of all such information, inculpatory or exculpatory, but, initially at least, the Crownmay exercise a discretion as to what information will be released, as well as the form that release will take.

If the defence is unhappywith either of those and no accommodation can be reached between it and the prosecution, then the defence has the undoubted right tomake a pre-trial application to the court for it to make the appropriate determination with respect to disclosure and the manner thereof. [emphasis added] [66] In Dixon, the Supreme Court discussed the role of defence counsel in the disclosure process and the importance ofdefence counsel “diligently pursu[ing] disclosure” (at para 37) rather than remaining passive. [67] The accused argues that the Crown’s disclosure was inadequate because the Crown did not alert defence counsel to thesecond video and provide him with the software to view the G64 files, or alternatively, provide an upfront offer to utilize the Crown’svideo player software.

The specific issue is whether the Crown’s disclosure of the second video in the G64 file format satisfied itsconstitutional disclosure obligations. [68] Electronic disclosure is meaningful if it is “reasonably accessible - a matter to be assessed in . . . each case” (Oszenarisat para 19). Whether a particular form of electronic disclosure satisfies the Crown’s obligation in any given case will depend on thecircumstances of the particular case. A significant consideration is how the electronic information is organised and formatted (ibid).

Aswell, the circumstances of the accused person or his/her counsel can be a consideration. For example, access to a computer can berelevant. However, general concerns about computer literacy are not sufficient to establish a

section 7 Charter infringement (ibid). Seealso R v Grant, Donovan and Amos, 2003 MBQB 237 and R v Piaskowski et al, 2007 MBQB 68 for helpful discussions of the generalprinciples for assessing the adequacy of electronic disclosure. [69] In R v Barbour, 2017 ABCA 231, the appellant, who was self-represented at trial, argued that she did not receive“effective” (at para 11) disclosure. The Court of Appeal disagreed.

She had been given full, electronic disclosure personally andthrough her previous defence counsel, but had failed to fully review it, and had failed to advise the Crown about alleged difficulties shehad in viewing some of the files on her computer.

In determining that the Crown had discharged its disclosure obligations, the Court ofAppeal reviewed the obligation of an accused person in relation to disclosure, particularly in electronic format (at para 32): An accused person is entitled to full disclosure, but an accused person also has some obligation to exercise reasonable diligence inmaking full answer and defence: (

a) Once disclosure is obtained, the accused has an obligation to review that disclosure, and identify anything that appears to be missing.The defence must “exercise due diligence in actively seeking and pursuing Crown disclosure”: Dixon at para. 37; Stinchcombe at p. 341;

. . . (

c) The Crown is entitled to make disclosure in electronic form, so long as the material is reasonably organized and indexed, using any reasonably available software configuration: R. v. Oszenaris , 2008 NLCA 53 at paras. 19-20 , 236 CCC (3d) 476 leave to appeal refused [2009] 1 SCR xii; R. v. Beckett , 2014 BCSC 731 at paras. 7-8 . The accused person receiving disclosure must act reasonably in obtaining access to the information.

The appellant’s argument that as early as 2013 she had trouble accessing the information using her Mac computer does not demonstrate due diligence, and certainly was not evidence of a failure by the Crown to make disclosure by the time of trial in September 2015. . . .

The failure of the appellant and her counsel to read and retain the disclosure does not demonstrate any breach of the Crown's obligation to disclose. [ 70 ] Given the obligations on defence counsel to act reasonably, I do not accept the accused’s assertion that the Crown failed to fulfill its disclosure obligations because the Crown failed to provide defence counsel with the Genetec software that would have allowed for the immediate viewing of the G64 files. [ 71 ] Defence counsel admitted that he was unaware of the difference between the file containing the video and the G64 files containing the second video, and that he never advised the Crown that he was unable to open the G64 files or needed assistance in accessing them.

This does not translate into a failure by the Crown to fulfill its obligation to disclose. Advising the Crown that he could not access the G64 files would no doubt have led to a resolution of that issue prior to the trial. Taking this reasonable step would have allowed defence counsel to access the G64 files. [ 72 ] Furthermore, the evidence before this Court reveals that, after initially being unable to view the G64 files, the associate was able to open and view them after he found and installed the commercially available Genetec software program on his computer.

In my view, this evidence demonstrates that the G64 files were reasonably accessible to defence counsel, in the absence of evidence that defence counsel would not have had the capacity to discover the Genetec software using reasonable measures (including asking more computer-savvy colleagues). [ 73 ] Finally, the fact that the disclosure by the other prosecutor in the other prosecution was preferable does not demonstrate that the Crown, in this case, breached its disclosure obligation to the accused.

As stated earlier, each case is to be assessed on its particular circumstances. [ 74 ] For these reasons, I conclude that the Crown did not fail to provide meaningful disclosure of the second video. [ 75 ] Given this conclusion, the accused has not met the threshold matter of establishing a breach of its disclosure obligation and I need not proceed further with an analysis under the Taillefer/ Dixon test. Conclusion [ 76 ] I would dismiss the accused’s motion to adduce the second video as fresh evidence. The accused has not demonstrated that his rights under

section 7 of the Charter were breached by the Crown not providing meaningful disclosure of the second video. I would dismiss the other grounds of appeal. [ 77 ] Accordingly, I would dismiss the accused’s appeal. JA I agree: JA

I agree: JA