R. v. Howe, 2016 NSSC 151

SUPREME COURT OF Nova Scotia Citation: R. v. Howe , 2016 NSSC 151 Date: 20160630 Docket: CRH No. 441632 Registry: Halifax Between: Her Majesty the Queen v. Duayne Jamie Howe, Patrick Michael James, and David John Pearce Restriction on Publication:

Section 486.5 Judge: The Honourable Justice Peter Rosinski Heard: May 19, 24, 25, 27, 30, and June 1, 2016, in Halifax, Nova Scotia Counsel: Glen Scheuer, for the Crown Patrick Atherton for the Defendant, Duayne Jamie Howe Trevor McGuigan for the Defendant, Patrick Michael James Patrick MacEwen for the Defendant, David John Pearce By the Court: Introduction [ 1 ] The defendants argue that: They cannot receive a fair trial; or alternatively, that allowing their trial to proceed would constitute an “abuse of process” – therefore, this court must effectively end their prosecution.

I do not agree. [ 2 ] As alleged members of the Bacchus Motorcycle Club, the defendants are charged with committing offences in relation to R.M. under Sections 264.1(1)(a), 264(2), 346 and 423 for the benefit of, at the direction of, or in association with a criminal organization contrary to

Section 467.12 of the Criminal Code . The offences are alleged between January 1, 2012 and September 15, 2012, and are set for trial between November 21, 2016 and December 8, 2016. [ 3 ] It is important to appreciate the context of the allegations herein, given the nine month period within which the charges arise, and to understand the allegations at their highest. All counsel agreed that I could read the transcript of R.M.’s audiotaped statement of September 16, 2012, and should consider the audiotaped statement itself in so far as his demeanour could thereby be ascertained.

Background [ 4 ] The allegations are as follows: All three defendants are “full patch” members of the Bacchus Motorcycle Club, which is a criminal organization; R.M. is a simple motorcycle enthusiast; he intended, with some friends of his, to establish a recreational motorcycle club in the area of Halifax County, Nova Scotia; he decided that the club should have its own distinctive name, and logo; the name and logo, and “Nova Scotia” [referred to as a “three patch” motorcycle club] would then be sewn onto the jackets of the club’s members; before doing so, he searched the Internet, and became convinced that he should first seek the approval of the most prominent motorcycle club in the area; consequently he sought out the approval of the Bacchus Motorcycle Club; he had ongoing communications and personal meetings with Patrick James, who held himself out as the representative of the Bacchus Motorcycle Club for such purposes; Mr.

James persuaded him that he could not have a motorcycle club with a “three patch” design as it would be seen as a provocation and sign of disrespect by existing “three patch” motorcycle clubs in Nova Scotia (including the Bacchus Motorcycle Club); over a lengthy period of time and discussions, Mr. James, sometime in July – August 2012, approved of R.M.’s proposal to have a “one patch” [the placing on the back of their leather jackets a single patch with the words – “The Brotherhood”] motorcycle club associated with The

Brotherhood Motorcycle Club from Montréal; to formalize their association with The Brotherhood, between August 24 and 26, 2012,R.M. and friends travelled to Montréal for a short vacation; on their return, while at the airport on August 26, one of his club membersreceived a phone call from a neighbour that there were five members of the Bacchus Motorcycle Club at his house looking for him;shortly thereafter, R.M. received a number of text messages in close succession from Patrick James - “was hoping to run into you today.

If I don’t hear from you, I will just pop in your office tomorrow” - and “in Montréal by chance?” - and - “will see you as soon as you getback. Don’t waste your dollars on any souvenirs” - and “saw you three came out of the closet on Facebook”; Patrick James visited R.M.at his office the next day dressed in his Bacchus Motorcycle Club leather vest and regalia [the so-called “cut” and “colours”]; Mr. Jameswas very upset and told R.M. in part - “What the fuck were you thinking? Do you think you could get away with something like that?

Ifucking told you that you are not having a fucking patch. [R.M. interjected Patrick James: you told me no three-piece – you told me thatthe Brotherhood name was okay] I fucking told you that you were not to have a fucking Montréal Brotherhood patch down here and youwent ahead and fucking did it. We were driving around the whole weekend looking for you because of that picture that went onFacebook, you guys getting patched over in Montréal… because those were coming off your back… you fucking disrespected us.

Youmore or less or might as well have told us to go fuck ourselves by putting those patches on your back”; Mr. James offered R.M. a way toappease the Bacchus Motorcycle Club – immediately R.M. was to have photographs taken of their patches and clothing being cut up, andthe Montréal club is to put a notice on Facebook that it has no

chapter in Halifax; on August 28, 2012, R.M. sent the pictures of theirclothing/patches being cut up, by email to Patrick James at BacchusHfxPat@eastlink.ca; he simultaneously also sent Mr. James a link tothe expected Facebook announcement, which had not yet been posted; R.M. had discussions with his own club members and theydecided they should have their cut-to-pieces vests/patches personally turned over to Patrick James; another member of R.M.’s clubdelivered the remnants of their vests to Mr.

James who was in the company of four or five members of the Darksiders Motorcycle Club;while that appeared to appease the members of the Bacchus Motorcycle Club, about two weeks later, in the evening of September 14,2012, R.M. and a number of other individual recreational motorcycle enthusiasts attended a charity event; after a while R.M. and otherswith him noticed six members of the Bacchus Motorcycle Club wearing their regalia; Mr. Howe and Mr. Pearce were among them andin close proximity to R.M., at which point Mr.

Howe angrily said to him - “I’m telling you right fucking now, get on your fucking bikeand get the fuck out of here. You’re not fucking welcome here. The only reason why we don’t kick the living shit out of you rightfucking now is because there’s too many fucking people around. You’re not welcome at any fucking biking event in Nova Scotia… I’mtelling you to get the fuck out of here right now or you’re going to get the shit kicked out of you... What makes you think you canfucking disrespect us and then show your fucking face around here?... Oh, getting the fucking patch from Montréal?

You didn’t fuckingdisrespect us?... You go fucking say your hellos, put your money in, and get on your bike and get the fuck out of here, and we don’t wantto see you anywheres at any events in Nova Scotia. You are fucking done.” [5] R.M. and his wife and friends were very shaken by what had taken place. R.M. decided to call RCMP Constable Susan Camus,in an effort to understand how best to deal with the situation. By 11:00 a.m. on September 15, 2012, he received a call back from RCMPSgt.

Stephen MacQueen, who was with the CFIU [Combined Forces Intelligence Unit] which was an association between the RCMP andthe Halifax Regional Police intended to gather intelligence regarding organized crime activities in Nova Scotia. He arranged to meetR.M. at his house that evening to discuss his options. Sgt. MacQueen and then - Cpl. David Astephen met with R.M. and family between9:30 and 11:30 p.m. Sgt. MacQueen made brief notes after his arrival at home that evening; he also made relevant notes during the dayat the detachment on September 16, 2012 – [Exhibit VD –2– 1]; Sgt.

MacQueen also made relevant notes in a supplementary occurrencereport on September 20, 2012 – [Exhibit VD-2-2]; Cpl. Astephen made brief notes shortly after the end of the September 15, 2012 meeting and those in relation to September 16th were made contemporaneously with the events of that day – [Exhibit VD-2-3], he alsoauthored a General Report on September 24, 2012, summarizing the events of September 15 – 16, 2012 [Exhibit VD -2-4]. [6] On September 16, 2012, between 2:30 p.m. and 4:30 p.m., R.M. gave his audiotaped statement to then Cpl.

Astephen at theRCMP detachment in Lower Sackville. [7] On September 20, 2012, search warrants were executed and arrests effected. [8] At trial, it is anticipated that the Crown will also lead expert evidence, in an effort to establish that the Bacchus MotorcycleClub is a criminal organization, and was so at the time of these offences, and that Mssrs.

Howe, Pearce and James were then acting forthe organization. [9] The defendants argue that they are entitled to a judicial stay of proceedings, or the court ordered exclusion of the out-of-courtstatements and any proposed viva voce evidence by the complainant R.M., as a result of violations of their

Section 7 Charter rights,which they suggest amount to an abuse of process. The two aspects underlying the defendants’

Section 7 Charter arguments [10] Defendants’ counsel argue in their written materials that their clients’

Section 7 Charter rights have been breached because: i. There was a police “failure to make a recording or take detailed notes of theirmeeting with complainant R.M. on September 15, 2012”, which breached their right to make full answer and defence, and constitutes anabuse of process [I will refer to this as the “no statement argument”]; ii.

The police “use of threats or inducements on or about September 15, 2012, inorder to procure a favourable statement from the complainant R.M. [on September 16, 2012], constitutes an abuse of process contrary toSection 7 Charter… [and] violates [the defendants’] right to be tried on the basis of fair and reliable evidence” [I will refer to this as “themisconduct argument”]. Timing of the Disposition of the Application for a Stay [11] A preliminary issue can arise regarding the timing of pre-trial motions, especially where a stay of proceedings is sought as aremedy for an abuse of process – R. v.

La, (SCC), [1997] 2 S.C.R. 680, per Sopinka J.: 27 The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other

prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has adiscretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clearthat no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually bepreferable to reserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whethermeasures to minimize the prejudice have borne fruit.

This is the procedure adopted by the Ontario Court of Appeal in the context of lostevidence cases. In R. v. B. (D.J.) (1993), 16 C.R.R. (2d) 381, the court said at p. 382: The measurement of the extent of the prejudice in the circumstances of this case could not be done without hearing all the relevantevidence, the nature of which would make it clear whether the prejudice was real or minimal. Similarly, in R. v.

Andrew (S.) (1992), 60 O.A.C. 324, the court found at p. 325 that unless the Charter violation "is patent and clear, thepreferable course for the court is to proceed with the trial and then assess the issue of the violation in the context of the evidence as itunfolded at trial". See also: R. v. François (L.) (1993), (ON CA), 65 O.A.C. 306; R. v. Kenny (1991), (NL SC), 92 Nfld. & P.E.I.R. 318 (Nfld. S.C.T.D.). 28 I would add that even if the trial judge rules on the motion at an early stage of the trial and the motion is unsuccessful at that stage,it may be renewed if there is a material change of circumstances.

See R. v. Adams, (SCC), [1995] 4 S.C.R. 707, and R. v.Calder, (SCC), [1996] 1 S.C.R. 660. This would be the case if, subsequent to the unsuccessful application, the accusedis able to show a material change in the level of prejudice. [12] I am satisfied that I am in a position to make my findings and draw legal conclusions at this time. 1. The “No Statement Argument” alleging a

Section 7 Charter violation [13] In

summary, the defendants argue: The police have a duty to preserve (i.e. create a record of) and disclose any potentiallyrelevant evidence which includes either recording, or taking detailed notes of, statements given by complainants/important witnesses atthe earliest opportunity, failing which, a finding of a breach of the right to make full answer and defence will ensue. (

i) Is there a Charter-based duty in law to take a “statement” from a potenpopotentially important witness at the earliestopportunity? [1] [14] The defendants provided meagre authority to support their claim - see R. v. RCS, 2004 NSSC 232; R. v. Hill, 2002 NSSC 205;and R. v. Wickstead, (1996) (ON CA), 29 O.R. (3d) 144 (CA); affirmed (SCC), [1997] 1 S.C.R. 307. [15] Wickstead does not stand for the proposition that the police have a duty to create a record of their first interaction with animportant witness/potential complainant.

The Ontario Court of Appeal did state: As pointed out by the trial judge, counsel were unable to provide him, nor were counsel able to provide this court, with any Canadianauthority wherein a stay was granted for the failure of investigating police officers to record conversations with important witnesses. [16] The court further concluded that the failure of the investigating officer to record his conversation with witnesses during thecourse of the conversation was not prejudicial to the right of the accused to make full answer and defence. [17] The Supreme Court of Canada stated in an oral decision: We agree… that although there was a breach of the appellant’s right to make full answer and defence [the late disclosure of unfoundedallegations , by witness Jurvanen against the accused and others involved in the allegedly defrauded Rape Crisis Line; as well as the lackof recall by Schlicter regarding Jurvanen’s claim that she had met him], the trial judge erred in the exercise of discretion in finding thatthis was one of those clearest cases in which a stay was the only appropriate remedy… an adjournment was the appropriate remedy. [18] In R. v.

RCS, 2004 NSSC 232, Justice LeBlanc was faced with a situation where a young complainant in a sexual assault casewas interviewed at her school, and a cassette recorder was used during the 55 minute interview. Some notes were also taken. The tapeturned out to be virtually entirely inaudible. The investigators failed to take quick corrective action, for instance by promptly re-interviewing the complainant, even when defence counsel had alerted them to the problems with the tape.

Justice LeBlanc characterizedthe application for a stay of proceedings as follows: While much of the interview was reduced to writing by Cpl. DeLuco, there are substantial portions of the interview that were not reducedto notes. It is difficult, if not impossible, to determine how much of the interview was completely lost by not being recorded or writtendown. [The Family and Children Services worker] made no notes. The failure to record the whole of the interview resulted in the loss ofrelevant evidence. It is necessary to consider whether the loss arose from “unacceptable negligence”.

The Crown must explain the loss. [19] Justice LeBlanc, relying on the Supreme Court’s decision in R. v. La, (SCC), [1997] 2 S.C.R. 680, and athorough review of number of other cases concluded “that the conduct of the RCMP amounted to unacceptable negligence… [and the

accused] will not be able to make full answer and defence in these circumstances.” He therefore stayed the proceeding. [See also R. v.Andrews, 2009 NSSC 408 where no stay was imposed.] [20] In Hill, Justice Goodfellow stayed sexual assault and assault charges because of the complainant’s police interview of 92minutes, which had been audiotaped, only approximately half of it survived to be disclosed. [21] As with Justice LeBlanc in RCS, Justice Goodfellow did not create new law – the outcome in both cases was based on theexisting case law regarding “lost evidence”.

In those cases, witnesses had given formal “statements”, and either the entirety orsignificant portion of the statements were not preserved. None of the cases cited by the defendants speak of a duty to create potentialevidence by taking a statement. [22] In R. v. Burns, 2014 NSSC 436, I was faced with a motion for a stay of proceedings or exclusion of evidence regarding analleged sexual assault and the preservation of text messages on the complainant’s phone.

The exchange of text messages between theaccused and the complainant were suggested to be corroborative of the complainant’s claim that the accused was aware he had sexuallytaken advantage of her while she was intoxicated and unable to consent. At an initial meeting with the complainant at the hospital, apatrol police officer became aware that the complainant’s telephone contained the text messages in question. He did not request to see orseize her phone. Somehow, before the specialized investigator met with her to obtain a formal statement, some of the text messagesbecame deleted from her phone.

The defence argued it was a case of unacceptable negligence on behalf of the police, and thus a breachof Mr. Burns’

Section 7 Charter rights. There, I stated: 112 I am unaware of any reported decision, in which the police have been found unacceptably negligent in similar circumstances. Nocourt has gone as far as to say that the circumstances in the case at Bar meet the threshold for effectively imposing an obligation ofdisclosure or production on the Crown for evidence that "should have been seized", breach of which is a breach of s. 7 of the Charter.Most recently our Court of Appeal dealt with an allegation of "unacceptable negligence" and loss of evidence which had been in thepossession of the police (taser video) in R. v.

Boliver, 2014 NSCA 99, per Bryson, J.A. at paras. 32 - 34. Some courts have concludedthat a failure to seize or secure evidence may amount to negligence which could underpin a claim of prejudice to an accused's right tomake full answer and defence: R. v. Abukar, 2009 ABPC 136; R. v. Shewchuk, 2014 ABPC 141; R. v.Gill, 2014 SKQB 176. 113 I conclude that the law has not gone that far, nor should it. There was no duty on the Constable to view the text messages andseize the phone.

Not having viewed the texts or seized the phone, the phone and necessarily the text messages on that phone, were nottransformed into "fruits of the investigation", and therefore no latent obligation of disclosure or production crystallized until June 28,2011 when the phone was seized.” [23] The Crown relies upon a number of cases for precisely the proposition that the police do not have a duty to create or gatherparticular forms of evidence: 1. R. v.

La, (1996) 1996 ABCA 110 , 105 CCC (3d) 417 (Alta.CA), at paras. 24 and 29 : 24 While we do not wish to suggest that police do not have a duty to preserve evidence and statements taken by them, perfection is notrequired of them. The inadvertent loss of a statement should not lead to a stay of proceedings anymore than the failure of a police officerto take complete or accurate notes, or to record the conversation on each occasion that he or she speaks to a witness about the facts inissue.

One situation creates no greater problem for the defence than the other. … 29 To the extent that this statement [by the trial judge] suggests that there is a legal obligation on the police to make a completeand accurate record of the initial oral complaint of a complainant in a sexual assault case or, for that matter, of any witness inany case, we do not agree. It will often be impractical, if not impossible, for police officers to do so. Initial complaints are often made incircumstances in which recording is not possible or practical. Often complainants or witnesses are emotionally upset.

They may requiremedical and other attention. They may need some time to compose themselves. The need to continue with other aspects of theinvestigation may require that the police officer limit the statement to the briefest details.

If the police officer within a reasonable periodof time obtains a written statement from the witness, or an oral statement that is reduced to writing, that is sufficient, unless the evidenceestablishes on a balance of probabilities that the oral statement was materially different, in some particular other than lack of detail, fromthat later given in writing. [my emphasis] [24] The Supreme Court of Canada did not comment expressly on this point, however, it did affirm the decision of the Alberta Courtof Appeal (R. v. La, (SCC), [1997] 2 SCR 680).

Notably, Sopinka J., for himself, and four other justices, stated at para.21: In order to determine whether the explanation of the Crown is satisfactory, the court should analyse the circumstances surrounding theloss of the evidence. The main consideration is whether the Crown or the police(as the case may be) took reasonable steps in thecircumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence wasperceived to have at the time.

The police cannot be expected to preserve everything that comes into their hands on the off chance that itwill be relevant in the future.… But as the relevance of the evidence increases, so does the degree of care for its preservation that isexpected of the police.

2. In R. v.

Wickstead, supra, the Alberta Court of Appeal stated: As pointed out by the trial judge, counsel were unable to provide him, nor were counsel able to provide this court, with anyCanadian authority wherein a stay was granted for the failure of investigating police officers to record conversations withimportant witnesses… Counsel for the respondent did refer to an American authority in support of his submission that the failure of theinvestigating officer to record his conversation with a witness during the course of his investigation is prejudicial to the right of theaccused to make full answer and defence: United States v.

Van Nuys, 707 F. Supp. 465 ( D. Colo.,1989). That case however dealt withthe situation where the prosecution deliberately instructed investigating officers not to make notes of their conversations with co-conspirators who were to be witnesses, so that they would not be cross-examined effectively at trial. [my emphasis] 3. In R. v. Korski, 2009 MBCA 37, the court stated, while late disclosure had risen to the level of a breach of the right to full answerand defence, and the central question was regarding an appropriate remedy: 76 Pruden was the last person alleged to have spoken with Martinez by telephone.

Her identity was not disclosed until shortly beforethe trial and, although she was interviewed by the police and notes of that conversation were made, no witness statement was ever takenfrom her. Moreover, the police notes were mislaid and did not find their way into the main file until 31 months later, when the policeofficer who conducted the interview was advised that his notes were missing. The police officer then prepared a narrative report andforwarded it and the notes to the homicide unit handling the case. These notes and the narrative report were disclosed to defence counselin May 2007.

The trial commenced on June 4, 2007. 77 The Crown admitted that this was late disclosure and that this information should have been disclosed much earlier in theproceedings. However, it took the position that given disclosure had now been made and defence counsel had spoken to the witness, anybreach of Korski's right to disclosure had been remedied. Therefore, no further remedy was required. 78 In addition, the defence argued that the police had an obligation to take a written statement from Pruden and to provide thatstatement to the defence as part of its disclosure obligation.

The lack of the statement impeded the ability of the defence to put the priorstatement to her in order to test her recollection or attempt to impeach her credibility and therefore fatally affected the ability of Korski tomake full answer and defence. 79 The trial judge held that there was no obligation on the police to create evidence, as opposed to disclosing that whichalready exists. I agree. There is no burden on the police to record evidence of conversations with witnesses. See R.v. Wicksted (1996), (ON CA), 29 O.R. (3d) 144 (C.A.), aff'd (SCC), [1997] 1 S.C.R. 307, and morerecently, R. v.

Grant (I.M.), 2009 MBCA 9. 80 I also note the trial judge's comment that, while easier to do, it is not necessary that a witness's prior inconsistent statement be inwriting before defence counsel can cross-examine the witness on that statement. A cross-examination can also be made on a priorinconsistent oral statement, which would be proved by calling the person to whom the statement was made.

Section 11 of the CanadaEvidence Act, R.S.C., 1985, c. C-5, specifically deals with cross-examining a witness as to a previous oral statement. [my emphasis] 4. In R. v. Crane, 2013 NLCA 44, the court was concerned with whether to uphold a stay of proceedings imposed at trial.

TheSummary Conviction Appeal Court judge upheld the stay, noting: In a case involving undersize lobsters – where the live evidence is returned to the sea, where there can be less than a millimetre ofdifference separating a guilty verdict from a not guilty verdict, where the officers have cameras readily available, where the officers havethe calibrated lobster gauge readily available, where due diligence is a good defence – preserving an adequate photographic recordillustrating the carapace size of the lobsters would be a reasonable step… There was only one lobster photographed [of 66 that wereseized] in a way to display both ends of the gauge over the carapace…I find no error of law by the trial judge in coming to theseconclusions. [25] At paragraph 18, the Court of Appeal commented: As a preliminary point, the rules regarding disclosure do not require the creation or gathering of particular forms of evidence.

Inthis case, there was no obligation on the Crown to take photos or video. It was open to DFO officers, for example, to measure thelobsters and simply record the measurements in their notes. Good investigative practice may well call for the creation of evidence(e.g. photos) that verifies what is recorded in the officer’s notes, but the law does not require it. [my emphasis] [26] Generally speaking, persuasive jurisprudence confirms that there is no duty in law upon police or investigative authorities toseize or secure all potential evidence. [2] [27] Interestingly, in my own research, I found that Mr.

MacEwen unsuccessfully made an almost identical argument regarding an

accused’s confession to undercover operators in R. v. Derbyshire, 2014 NSSC 371 (currently under appeal and the decision on reserve). At paragraphs 67 – 69, Justice Wood stated: 67 Ms. Derbyshire also says that her right to make full answer and defence was compromised because of the failure to record theundercover operation. The cases relied upon in support of that proposition involves situations where evidence obtained by the police waslost (e.g. R. v. La, (SCC), [1997] 2 S.C.R. 680) or the police interview of a complainant was not properly recordedwithout reasonable explanation (R. v. Hill, 2002 NSSC 205).

None of the authorities which I have reviewed suggest that the failureto record an undercover police operation violates the right to make full answer and defence under s.7. 68 If I were to accept Ms. Derbyshire's proposition it would mean that every undercover operation must be audio or video recorded orelse there would be a breach of the Charter. I am not prepared to go that far. 69 The failure to record an undercover police operation may have evidentiary implications not related to strict admissibility.

Forexample in Hart, the Supreme Court observed at para.93 that the failure to record the operation may make it difficult for the Crown tomeet its onus of demonstrating reliability of the "Mr. Big" confession.

Similarly, reliance on police officer notes prepared hours after thefact may diminish the weight to be given to an alleged confession by a trier of fact where there is no accurate recording of that statement. [my emphasis] [28] I am satisfied that there was no duty in law upon the police officers who met with R.M. on September 15, 2012, to haverecorded with audio or video equipment, everything that R.M. said to them that night, nor to have created more detailed notes of theirinteractions and conversations with R.M. that night. [3] There is no duty in law to take a “statement” from a potentially importantwitness. [29] Therefore, while the Crown did not request it, a motion for a Vukevich hearing regarding the “no statement” aspect of thisSection 7 Charter voir dire could have been made. [4] A Vukevich hearing allows a trial court to determine if a Charter applicationshould even proceed to be heard.

As Judge Derrick stated in her comprehensive analysis in R. v. Hilchey, 2015 NSPC 46, at paragraph13: Charter motions that do not have any possibility of success or where the remedy being sought could not possibly be granted can bedismissed, avoiding the expenditure of valuable and limited judicial and court resources. [See to similar effect: R. v. Garrick, 2014 ONCA 757; R. v.

Bains, 2010 BCCA 178] (ii) If there is such a duty in law, is there a breach of that duty here? [30] Nevertheless, in order to comprehensively examine the defendants’ “no statement” argument, I will proceed on the basis thatthere is such a duty in law.

Thus, I must turn to whether there was a breach of that duty [based on the evidence on a balance ofprobabilities]; and whether the breach of that duty materially impairs the defendants’ right to full answer and defence; and if so what isthe appropriate remedy? [31] Even if such a duty existed, any breach thereof would likely require unacceptable negligence or a (bad-faith based) deliberateavoidance of taking a statement by investigating authorities. In the case at bar, I conclude there is no substance whatsoever to suchsuggestions of avoidance or negligence.

Nevertheless, for the sake of argument, I will proceed on the basis that the inactions of theofficers on September 15, constituted a breach of their duty to have obtained a “statement” from R.M. that evening. (iii) Does such a breach of duty impair the defendants’ right to full answer and defence? [32] Nomenclature matters. Every accused person’s “right to make full answer and defence” in answer to a criminal or quasi-criminal charge is recognized as a principle of fundamental justice. Every accused person also has the right to a fundamentally fair trial -R. v. Mills (SCC), [1999] 3 S.C.R. 668, at paras. 69 – 76.

There is however, no “right to disclosure” of correspondingconstitutional stature.

The right to disclosure is but one component of the right to make full answer and defence. [33] In the context of the case at bar, the question arises: is the failure to create evidence better considered under the analyticalframework of the jurisprudence regarding, “failure to disclose” that which is in the possession or control of the Crown, or “lostevidence” which was in the possession or control of the Crown? [34] Although there are distinctions between the frameworks, particularly in any given case, in essence they both seek to ensure thatno accused person faces an unfair trial.

Conceptually, in my view, the “lost evidence” Charter jurisprudence most closely reflects thecircumstances in this case, and therefore should govern my analysis. As recently stated by the Supreme Court of Canada in Wallace v.World Bank, 2016 SCC 15: 144 We also reject the respondents' second argument. The respondents claim that Stinchcombe disclosure is incomplete because Sgt.Driscoll's emails were lost, and because Sgt. Driscoll took no notes of his work preparing the affidavits.

They submit that while thirdparty documents would not ordinarily be presumed relevant, the World Bank Group's documents benefit from such a presumptionbecause these first party documents were lost or not created. 145 Accepting this argument would require a significant change to the O'Connor framework. We do not believe such a change isnecessary. When information covered by Stinchcombe disclosure is missing, destroyed or otherwise unavailable, the loss must beaddressed through the remedial framework set forth in R. v. La, (SCC), [1997] 2 S.C.R. 680. This is the appropriate

framework for addressing the lost emails and missing notes, and it may well be the appropriate framework for addressing any prejudiceresulting from the World Bank Group's assertion of its immunities. [35] Regarding the remedial framework in R. v. La, in Mills, Justices Iaccobucci and McLachlin stated: 75 The foregoing considerations do not mean that an accused’s right to make full answer and defence is automatically breached where heor she is deprived of relevant information. As this court outlined in R. v.

La, (SCC), [1997] 2 SCR 680 at paragraph25…, ‘Where the claim is based on lost evidence, the accused must establish actual prejudice to his or her right to make fullanswer and defence’ … 76 Several principles regarding the right to make full answer and defence emerge from the preceding discussion. First, the right to makefull answer and defence is crucial to ensuring that the innocent are not convicted… Third, full answer and defence does not include theright to evidence that would distort the search for truth inherent in the trial process. [my emphasis] [36] Moreover, in R. v.

La, (SCC), [1997] 2 S.C.R. 680, the minority concurring opinion [of four justices] stated atpara. 55: The Crown’s duty to preserve evidence is also a necessary element of an accused’s right to make full answer and defence, as well as theright to a fair trial. The disclosure duty would have little meaning if the Crown could evade it by destroying or intentionally losingmaterial evidence. In addition, the duty to preserve also engages the fundamental principle of ‘justice must be seen to be done, as well isactually being done’.

As my colleague points out, in situations where an accused does not suffer any actual harm, there may stillbe a Charter violation if the conduct in failing to preserve the evidence “violates those fundamental principles that underlie thecommunity’s sense of decency and fair play”. [my emphasis] [37] In contrast, in R. v. Dixon (SCC), [1998] 1 S.C.R. 244, a case of non-disclosure, the court had to considerthree issues: 1. What is the appropriate test to be used to determine whether the Crown’s inadvertent failure to disclose relevant material constituteda violation of the appellant’s right to disclosure under

Section 7 of the Canadian Charter of Rights and Freedoms? 2. Where an appellant’s right to disclosure is violated, what is the appropriate test to be used to determine whether his or her Charterright to make full answer and defence was also thereby impaired? 3.

In determining whether an appellant’s right to make full answer and defence was impaired, what effect is to be given to defencecounsel’s lack of due diligence? [38] Justice Cory, for the court, stated: 22 … Thus, where an accused demonstrates a reasonable possibility that the undisclosed information could have been used inmeeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of thedefence, he has also established the impairment of his Charter right to disclosure. 23 However, a finding that an accused’s right to disclosure has been violated does not end the analysis.… The right to disclosure ofall relevant material has a broad scope and includes material which may have only marginal value to the ultimate issues at trial.

It followsthat the Crown may fail to disclose information which meets the Stinchcombe threshold, but which could not possibly affect thereliability of the result reached or the overall fairness of the trial process. In those circumstances there would be no basis for granting theremedy of a new trial under s. 24(1), since no harm has been suffered by the accused. … 24 … The right to full disclosure is just one component of the right to make full answer and defence.

It does not automaticallyfollow that solely because the right to disclosure was violated, the Charter right to make full answer and defence was impaired. And later: 32 At this point, something should also be said about the standard to be met by an accused who asserts that the right to make full answerand defence was impaired. It is trite but worth repeating that in all cases where a person claims that a Charter right has been violated, heor she must prove on a balance of probabilities that the violation occurred.

Thus, before granting any sort of remedy under Section24(1) , it must be found that it was more likely than not that the Charter right in question was infringed or denied (see R. v. Collins (SCC), [1987] 1 SCR 265 at page 277). 33 … Further, the accused bears the additional burden of demonstrating on a balance of probabilities that the right to make fullanswer and defence was impaired as a result of the failure to disclose.

34 This burden is discharged where an accused demonstrates that there is a reasonable possibility the non-disclosure affected theoutcome at trial or the overall fairness of the trial process… … However, the reasonable possibility to be shown under this test must not be entirely speculative. It must be based on reasonablypossible uses of the nondisclosed evidence or reasonably possible avenues of investigation that were close to the accused as a result ofthe non-disclosure.

If this possibility is shown to exist, then the right to make full answer and defence was impaired. 35 Once an accused establishes impairment of the right to make full answer and defence as a result of the Crown’s failure todisclose, he or she is entitled to a remedy under s. 24(1). Again, it is at this stage that the degree of impairment or prejudice to theaccused’s rights must be assessed and considered in relation to the remedy sought. [my emphasis] [39] As our court stated in R. v.

Watt, 2008 NSCA 25, at para. 34: As to what constitutes prejudice sufficient to constitute a breach of the right to a fair trial, the Ontario Court of Appeal stated in R. v.Bradford, (ON CA), [2001] OJ No. 107, a lost evidence case: 7 … The fact that an accused is deprived of relevant information does not mean that the accused right to make full answerand defence is automatically breached. Actual prejudice must be established: Mills, supra 719 – 720, citing R. v.

La (SCC), [1997] 2 SCR 680 at 693 . 8 The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish thatirreparable harm has occurred to the right to full answer and defence. Actual prejudice occurs when the accused is unable to putforward his or her defence due to the lost evidence and not simply that the loss of evidence makes putting forward the positionmore difficult.

To determine whether actual prejudice has occurred, consideration of the other evidence that does exist andwhether that evidence contains essentially the same information as the lost evidence is an essential consideration. For example, inFCB 2000 NSCA 35 , [2000] NSJ No. 53, supra, the court held that where the complainant signed statement was lost, but atyped transcription that was probably accurate existed, the trial judge erred in entering a stay of proceedings. In R. v.

JD a judgment ofthe Ontario Court of Appeal delivered May 30, 1996, [1996] OJ No. 1907, although the complainant’s statement was lost, theofficer’s notes were available and the court held that it was speculative whether there were any inconsistencies between thecomplainant’s statement and the officer’s notes. [my emphasis] [40] Thus, once evidence has been “lost”, an accused may be entitled to a Charter remedy where there is a material impairment ofthe right to make full answer and defence (“actual prejudice” to the fair trial rights of an accused); or possibly even if there is no actualprejudice, but the Crown’s conduct “violates those fundamental principles that underlie the community’s sense of decency and fairplay”.

Both of these outcomes are properly characterized as breaches of

Section 7 of the Charter. [41] In the case at bar, assuming there is a breach of a duty in law by the Crown in not having audio/video recorded, or reduced todetailed writing, R.M.’s statements to the officers on September 15, 2012, the defendants have not demonstrated that the failure to do sohas actually impaired the defendants’ right to make full answer and defence. There is no evidence of, or upon which one could concludethat there are, any material inconsistencies between what R.M. voiced to the officers on September 15, and what he provided in hisaudiotaped statement on September 16, 2012.

There is other evidence which contains essentially the same information as the lostevidence. R.M. gave his two hour audiotaped statement to police less than 24 hours later. [42] Moreover, insofar as examining the “no statement argument” per se, and whether there is any evidence of police conduct whichwould “violate those fundamental principles that underlie their community’s sense of decency and fair play”, that aspect is better dealtwith under the “police misconduct argument” which follows.

Summary of Findings [43] I accept as credible (honest and reliable), and find as reasonable, the evidence of both police officers as to why no recorded“statement” was taken from R.M. in the evening of September 15, 2012. [44] I make the following findings of fact in relation to the “no statement” argument: 1. There was no statement taken from R.M. on September 15, 2012, for various reasons including: a.

The officers are part of the CFIU, and were there, not as investigators, but rather for intelligence gathering purposes [toassess the potential for conflict between the Bacchus Motorcycle Club and The Brotherhood from Montréal, with which they were notfamiliar; as well as any potential risk to the RCMP as a result of R.M.’s previous volunteer efforts with the RCMP], and to provideinformation to RM regarding his options. In their experience, most witnesses in similar circumstances do not wish to give statements,and insist on being “off the record”; b.

R.M. was present with two other family members the entire time [2 hours between 9:30 and 11:30 p.m.] the officers hada generalized and ongoing conversation with them in their living-room-appointed garage; c. R.M. was very distraught. He was focused about what could be done about the situation – R.M. described himself atthat time as having anxiety levels, “on a scale between 1 and 10”, as an “11”. The officers reasonably concluded he was in no conditionto give a statement. Nor did he tell them he wished to give a statement to them there.

Towards the end of their meeting, R.M. indicatedhe was prepared to give a statement to police regarding the interactions he had had with the Bacchus Motorcycle Club. The officersagreed to meet him next day for that purpose, and given the hour and his emotional state, it was reasonable to allow him to compose

himself before he gave his audiotaped statement. According to Sgt. Astephen, R.M. was stoic and composed throughout virtually theentire time he gave his statement on September 16, 2012; d. The officers almost never took statements from individuals in their intelligence gathering capacity, and did not haverecording devices with them or at their office – their only “notebooks” were 8.5 by 11 inches in size. 2. I accept Sgt.

Astephen’s evidence as credible, and specifically that there were no material inconsistencies between what R.M. toldthe officers between 9:30 and 11:30 p.m. on September 15, 2012 and his audiotaped statement taken by Sgt. Astephen between 2:30 p.m.and 4:30 p.m., on September 16, 2012. 3. R.M. was called by the defendants as their sole witness on this voir dire.

I accept his testimony on the following points: He agreedthat he had no problem remembering the events in question when he gave his recorded statement; that he was telling the truth in hisrecorded statement and that it was “the same information as the night before… more than likely”; he agreed that the purpose of theSeptember 15 meeting was him looking for advice from the police and what they knew; he agreed that at the end of the first meeting hewas not sure if he was going to give the police a statement. Conclusion regarding the “no statement argument”

Section 7 Charter violation [45] The defendants’ arguments fail utterly. 2. Analysis of the police misconduct -

Section 7 Charter violation The “misconduct argument” [46] In

summary, the defendants argue an abuse of process from two related perspectives:

i) When Sgt. MacQueen and then Cpl. Astephen met with R.M. between 9:30 and 11:30 p.m., on September 15, 2012, they used threatsor (inappropriate) inducements amounting to duress on R.M., to procure a favourable statement from R.M. on September 16, 2012 against the defendants; ii) Based on the testimony at the preliminary inquiry hearing evidence of R.M., Sgt. MacQueen, and Sgt.

Astephen, “at least one of theofficers lied under oath” [regarding whether one of them said that the threat to R.M.’s safety was “confirmed and legitimate”]. [47] The defendants claim, as a remedy, a stay of proceedings, or alternatively at a minimum the exclusion of R.M.’s out-of- courtstatements and viva voce testimony.

In either case the prosecution would effectively be ended. [48] Though notionally the defendants also suggested that the threats and/or inducements alleged would have undermined thereliability of R.M.’s statement given September 16, 2012, [5] and therefore, infringed the defendants’ right to a fair trial on reliableevidence, they did not expend much energy in presenting that argument under this rubric. I believe it was their view, which I share, thatthe crux of their argument rests upon the jurisprudential framework arising from the residual category of abuse of process under Section7 of the Charter - R. v.

Babos, 2014 SCC 16. [49] In Babos, Moldaver J. stated for the court: 30 A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12 , 2002 5CC 12,[2002] 1 S.C.R. 297, at para. 53). It [page 322] permanently halts the prosecution of an accused. In doing so, the truth-seeking functionof the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits.

In many cases, alleged victims ofcrime are deprived of their day in court. 31 Nonetheless, this court has recognized that there are rare occasions -the “clearest of cases” - when a stay of proceedings for anabuse of process will be warranted (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generallyfall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2)where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual”category) (O’Connor, at para. 73).

The impugned conduct in this case does not implicate the main category.

Rather, it falls squarelywithin the latter category. 32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements: (1)There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54); (2)There must be no alternative remedy capable of redressing the prejudice; and (3)Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decision on the merits (ibid., at para. 57). [page323] 33 The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are oftenlinked and regularly arise in the same case.

Having one test for both categories creates a coherent framework that avoids “schizophrenia”in the law (O’Connor, at para. 71). But while the framework is the same for both categories, the test may - and often will - play outdifferently depending on whether the “main” or “residual” category is invoked.

34 Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused’s right to a fairtrial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concernis whether there is ongoing unfairness to the accused. 35 By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive tosocietal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrityof the justice system.

To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution ofoffences. At times, state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justicesystem condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In thesekinds of cases, the first stage of the test is met. 36 In Canada (Minister of Citizenship and Immigration) v.

Tobiass, (SCC), [1997] 3 S.C.R. 391, this Court describedthe residual category in the following way: • For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct islikely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the lattercondition will not be met unless the former is as well - society will not [page 324] take umbrage at the carrying forward of a prosecutionunless it is likely that some form of misconduct will continue.

There may be exceptional cases in which the past misconduct Is soegregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [para. 911] 37 Two points of interest arise from this description. First, while it is generally true that the residual category will be invoked as a resultof state misconduct, this will not always be so. Circumstances may arise where the integrity of the justice system is implicated in theabsence of misconduct.

Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach averdict stands as an example (see, e.g., R. v. Keyowski, (SCC), [1988] 1 S.C.R. 657), as does using the criminal courts tocollect a civil debt (see, e.g., R. v. Waugh (1985), (NS CA), 68 N.S.R. (2d) 247 (S.C., App.

Div.)). 38 Second, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stageof the test is the same whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system.While I do not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whethercarrying on with a trial occasions further harm to the justice system.

The court must still consider whether proceeding would lendjudicial condonation to the impugned conduct. 39 At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice.Different remedies may apply depending on whether the prejudice relates to the accused’s right to a fair trial (the main category) orwhether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is onrestoring an accused’s right to a fair trial.

Here, procedural remedies, such [page325] as ordering a new trial, are more likely to addressthe prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice tothe integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fallsolely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in thepast.

Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice systemfrom the impugned state conduct going forward. 40 Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category isinvoked. This court has stated that the balancing need only be undertaken where there is still uncertainty as to whether a stay isappropriate after the first two parts of the test have been completed (Tobiass, at para. 92).

When the main category is invoked, itwill often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that anotherremedy short of a stay is available to address the concern. In those cases, no balancing is required. In rare cases, it will be evident thatstate conduct has permanently prevented a fair trial from taking place.

In these “clearest of cases”, the third and final balancingstep will often add little to the inquiry, as society has no interest in unfair trials. 41 However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity ofthe justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying theproceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing.

The court must consider suchthings as the nature and seriousness of the impugned conduct, whether the conduct is [page326 isolated or reflects a systemic andongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the chargesdisposed of on the merits.

Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it.When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomesless likely that society’s interest in a full trial on the merits will prevail in the balancing process.

But in residual category cases, balancemust always be considered. [my emphasis] [50] Thus, the defendants must establish the facts they allege constitute police misconduct on a balance of probabilities, andwhether, in light of this misconduct there is prejudice to the accused’s right to a fair trial or the integrity of the justice system that “willbe manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”.

i) Have the defendants shown that one of the officers “committed perjury”? [51] The defendants’ allegation is indeed a serious one. In their written brief they state, “the Court is faced with the inescapableconclusion that at least one of the officers that interviewed R.M. on September 15, 2012, Cpl. Astephen and Sgt. MacQueen, committedperjury during the preliminary inquiry.”

[52] Perjury is defined in

Section 131 of the Criminal Code, which reads in part: ... Everyone commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made beforehim a false statement under oath or solemn affirmation,…knowing that the statement is false. [53] Thus, the offence perjury requires proof of several discrete elements: the statement made must be false; the accused must knowit was false; there was an intention to mislead the court; and the statement was made under oath or solemn affirmation - R. v. Calder (SCC), [1960] SCR 892. [54] Notably,

Section 133 of the Criminal Code requires corroboration before a conviction can be entered: No person shall be convicted of an offence under

Section 132 on the evidence of only one witness unless the evidence of that witness iscorroborated in a material particular by evidence that implicates the accused. [55] Even though on a criminal charge, the standard of proof is beyond a reasonable doubt, in this hearing the defendants need onlydemonstrate on a balance of probabilities that the facts of the misconduct are made out. [56] The defendants argue that Sgt.

MacQueen told R.M. on September 15, 2012, that the threat from the Bacchus Motorcycle Clubto his safety was “confirmed and legitimate”; and that when, at the preliminary inquiry hearing and the voir dire before me, he deniedhaving use those words at that time, he committed perjury. As evidence, the defendants rely upon the testimony, at the preliminaryinquiry (in particular, at p. 186) and before me, of R.M. and Sgt. Astephen. [57] The defendants provided few references in the transcripts that might assist the court. They did refer to page 185 of the cross-examination of Cpl.

Astephen at the preliminary inquiry on December 12, 2013: Q. well is it fair to say that either you or Sgt. MacQueen said something along the lines of, “it’s been confirmed. It’s a legitimatethreat. And it’s not a matter of if, it’s a matter of when, and you’re going to get it.” Did you say something like that to him? A. I didn’t say that to R.M. But those types of words might have been uttered by Sgt. MacQueen. To put some, context to themeeting, in September of this year I was transferred to the unit. So motorcycle clubs and investigation surrounding motorcycle clubswere fairly new to me. Sgt.

MacQueen has an extensive background in that area and was really more able to shed light on these types ofinvestigations and on these types of clubs at that meeting. Q. So you’re saying something along those lines was said to R.M. at this 2 ½ hour meeting? A.

Well, based on what R.M. said in terms of his saying that I wanted to start a club, his story about it, and having had them torn upand being fearful, and then thinking it’s over, and then attending another event and it’s not over, and he was told he is not allowed to goto a bike club or a biking event in Nova Scotia, based on that, I think some context is what Sgt. MacQueen was offering, is that, youknow, based on what you’re saying and his experience with these types of investigations, he did provide some insight to R.M. in thatregard. Q. This isn’t context....

The police are telling R.M. that it’s a legitimate threat. So presumably had intelligence when you said that to him,is that correct? A. I didn’t say that to him. Q. Well are you saying it wasn’t said to him? A. No. I said, I didn’t say that to him. Q. You were there when it was said to him? A. Yes. Q. Well, presumably, it seems to me that you’re suggesting, the police are suggesting to R.M. if he doesn’t go along with you folks, he’sgoing to get threatened... It’s a legitimate threat, he’s going to get a hit? A.

Well if you consider it like a police officer talking about... knows a person that has no capacity to... You know, may utter a threat buthas no capacity to follow through on it, what I took from it was that Sgt. MacQueen was giving some context to the possibility thatthese are not idle threats, that this is a real possibility. And I think to sugar-coat it for a victim who is unsure of, you know, what it allmeans, would be doing that person a disservice. [my emphasis] [58] At the hearing before me, R.M. testified that Sgt.

MacQueen had said to him on September 15, 2012: “it’s been confirmed —it’s not a matter of if, it’s a matter of when” the Bacchus Motorcycle Club would make good on their threats against him. [59] On December 17, 2013, at the preliminary inquiry, R.M. testified (p. 405):

Q. Do you recall telling the police that you were prepared to give a statement? A. I recall how it was put to me about giving a statement, if you want me to answer that. Q. Will you answer the question... As long as you are answering the question, answer the question in your own words Sir. A. Okay. After I was told it... They came back to the house and Mr. MacQueen told me that it had been confirmed. “It’s not a matter of if, it’s a matter of when and you’re going to get it, and that’s nothing to be ...” And I asked... I asked the question because... I remember because that’s what really terrified [his wife]...

And I asked the question, I said “how do you know it?’ And they said that they have Intel or I forget what... the exact wording that they used , and he said, “it’s coming. You got three choices now [R.M.]... “Two- you can sit there and do nothing and they’re coming for you. It’s been confirmed .” [See also page 430 …A. “...then he said, ‘ we confirm this that it’s not a matter of if, it’s a matter of when, and you’re going to get it, and it’s coming .’ And I like, what you mean? Q. Did he elaborate on what you mean…. He said you’re going to get it? A.

That I could get a ‘beat-down’ at the least] [my emphasis] [ 60 ] Shortly thereafter, R.M. stated (p. 407): Q. How did this notion of options come about? You say you were given different options and how did that come about? A. I think it was stated that you have three options here, and that’s the way it was put to me after discussing that they had confirmed that it was a viable threat . Q. And you said, ‘viable threat’. A. Realistic, viable, whatever. That they had confirmation... What the heck did they call it. I can’t think of the name that they used. Q.

Are you using the words ‘realistic’ and ‘viable’ and ‘confirmation’ kind of like all sort of the same thing when you are recounting this thing? A. Yes, that’s what was coming from the RCMP, yes. [my emphasis] [ 61 ] R.M. stated further at the preliminary inquiry hearing (p. 471): Q. At what point in the conversation did Sgt. MacQueen say to you something along the lines of, “listen [R.M.] it’s confirmed. This is a real threat. It’s not a matter of if, it’s a matter of when? Would that be at the beginning of... A. That would be pretty much at the outset.

It was pretty close in there like, you know, we know who [you are] I am, what’s going on. ‘ We did some checking. This has been confirmed’ ... Q. And he also left you with the impression that there had been some independent checking out or investigation of what had occurred? A. Yes Q. That he had... A. Intelligence. Q. Independent intelligence, which confirmed that these guys were out to get you? A. Yes, wasn’t a matter of it.. It has been confirmed that it is not a matter of if, it’s a matter of when . Q. Now he didn’t tell you where he got that intelligence, correct? A. No, that was classified. Q.

Did he tell you that was classified? A. Yes. Also, on the threat assessment I’ve asked and they have told me it is classified. They can’t tell me how they do the threat assessment. [my emphasis]

[ 62 ] In redirect examination, R.M. stated (p. 512): Q. In response to questioning by my friends they had put several different scenarios to you with regard to discussions that were had with you and the police on the evening of September 15. When you are recounting those discussions , are you providing a verbatim account or are you providing a verbatim account or are you providing, you know, a general nature of the account of the words that were spoken on that evening? A. Some of it was verbatim, some of it was general and general[ized?] yeah.

Q. in relation to the verbatim parts , what’s verbatim in relation to that? What do you remember of that clearly, Sir? A. The night that they arrived at my home? Q. Yeah. A. I remember very clearly they introduce themselves, who they were, what their jobs were…. I remember exactly them letting me know the severity of the situation I was in by saying, ‘It’s not a matter of it, it’s a matter of when .’ I remember the fact of my three options very clearly. [my emphasis] [ 63 ] Sgt. MacQueen was confronted by these allegations at the preliminary inquiry hearing (p. 282): Q. I’m going to suggest to you, Sgt.

McQueen, that laying out the options went something like this. That you said : “well, [R.M.] I’m going to tell you, it’s been confirmed. It is a legitimate threat, and it’s not a matter of if, it’s a matter of when, and you’re going to get it.” A. Absolutely not Q. Nothing even close to that happened? A. Not even close. Q. Did you ever tell him it’s been a confirmed threat ? A. Absolutely not . Q. Because it hadn’t been a confirmed threat, correct? You didn’t know anything about this. A. That’s right. I had his story and that was it… Q.

But you at no point in time say “it’s not a matter of if, it’s a matter of when .” A. Never. Q. I’m going to suggest that you said something along the lines of: “You could get a very bad beating or worse. It’s confirmed. Your days of riding motorcycles, you might as well get rid of your motorcycle. You’re not going to be riding motorcycles anymore. You’re done. You’re finished.” A. No. He told us that. He told us he was told by the Bacchus not to show up at any other events or he was going to get a beating, I think was the gist of the conversation. So he asked me what you think that means.

And I said, well, I don’t know how else you could take that. That’s what it means. … Q. I’m going to suggest that you said : “two, you can do nothing, and it’s been confirmed you’re going to get it. If you do nothing, it’s coming, [R.M.]. Make no mistake about that .” A. No Q. That never happened? A. No Q. And you would recall if you said something like that? A. Absolutely. If he asked me my opinion on what he told us, the story, if he said do you think that if I show up at another bike event with these guys. I gave him my opinion. I said they told you not to go. They told you what’s going happen if you go.

If you’re asking my opinion on what that means, I will tell you what that means. It means don’t go.” [my emphasis]

[ 64 ] Later on, the preliminary inquiry transcript reveals (p. 332): Q. I think you testified on the last date that, you know, you certainly didn’t tell him that , you know, this was… They were coming and it wasn’t a matter of if, it was a matter of when . A. No, I don’t recall using those words at all . [ 65 ] R.M., claims that Sgt.

MacQueen said to him that “it’s been confirmed – it’s not a matter of if, it’s a matter of when” the Bacchus Motorcycle Club would make good on their threats against him. [ 66 ] In his testimony before me, R.M. did not waver from his allegations in his audiotaped statement, in which: he clearly portrays the anger displayed by Patrick James, another member of the Bacchus Motorcycle Club, after R.M. and his fellow club members/friends returned from Montréal on or about August 28, 2012; and that on September 14, 2012, he was threatened by a member of the Bacchus Motorcycle Club, while five other members of the club were present (they were all wearing their regalia); he was so concerned that he had friends with him escort him home by a longer than necessary route to ensure he was not being followed; he was so concerned that he called Constable Camus to see how he could deal with the situation; he was so concerned that he agreed to meet with Sgt.

MacQueen and Cpl. Astephen; he was so concerned, that when asked to describe his anxiety level on a scale of 1 to 10 when he first met the officers on September 15, 2012, he described himself as an “11”; he agreed that he was distraught throughout the time the officers were there on September 15, 2012. Both the officers in their testimony described him in as being in that state. [ 67 ] As Sgt. Astephen put it in his testimony on the voir dire: the conversation between Sgt. MacQueen and R.M. “was very repetitive and very circular”. R.M. kept coming back to what could he do to get himself out of this situation.

He noted that much of what was being discussed was then reframed by R.M. He confirmed that they did not have any outside information to “confirm” the threats that R.M. perceived. He confirmed that they did not say that they had confirmation of those threats. [ 68 ] Cpl. Astephen stated at the preliminary inquiry hearing, Khelawon voir dire , that in relation to the words: “It’s been confirmed. It’s a legitimate threat. And it’s not a matter of if, it’s a matter of when, and you’re going to get it”; “ those types of words might have been uttered by Sgt. MacQueen”. [ 69 ] Sgt.

MacQueen was adamant that he did not use the words alleged by R.M. on September 15, 2012, that: there was a “confirmed” threat by the Bacchus Motorcycle Club against R.M.; or that “it’s not a matter of if, it’s a matter of when” that the Bacchus Motorcycle Club would carry out its threat against R.M. [ 70 ] I am very satisfied that Sgt.

MacQueen did not utter the words, as claimed by R.M., that in one form or another correspond to the words: “it’s been confirmed , it is a legitimate threat [from the Bacchus Motorcycle Club], and it’s not a matter of if, it’s a matter of when , and you’re going to get it.” [ 71 ] As I was aware of the serious allegation being made here, I carefully observed and scrutinized the testimony of Sgt. Astephen, R.M., and Sgt. MacQueen. I have no hesitation in rejecting the allegation that Sgt. MacQueen committed perjury at the preliminary inquiry hearing or before me. [ 72 ] I accept the evidence of Sgt. Astephen.

He gave his evidence in a straightforward manner, candidly, and responsively to the questions asked. His evidence has internal consistency as well as external consistency. [ 73 ] His evidence that Sgt. MacQueen told R.M. that the threat was real and of an ongoing nature, was consistent with Sgt. MacQueen’s evidence. [ 74 ] In light of the alleged expressed threat to R.M. made by a member of the Bacchus Motorcycle Club, in the circumstances of this case, it was understood by R.M. to be very serious, even before he met with Sgt. MacQueen and Cpl.

Astephen on September 15, 2012. [ 75 ] There is clear evidence that R.M. was told by Sgt. MacQueen, that when members of the Bacchus Motorcycle Club make such a threat, they inevitably carry it out, in order not to lose face among those who matter to them. In that respect Sgt. MacQueen really only added his expert opinion to confirm R.M.’s pre-existing concerns. [ 76 ] I conclude that R.M.’s testimony at the preliminary inquiry hearing and before me is insufficiently reliable on the specific disputed factual issues herein. I say this because: i.

On the evidence before me, R.M. first made these statements at the preliminary inquiry hearing in December 2013,over one year later; ii. R.M. had no notes or other materials from which to refresh his memory of the meeting with the officers on September 15, 2012 (unless perhaps he had made notes for his meeting with, or received a copy of the statement he provided to, the defendants’ private investigator with whom he met in the weeks preceding the preliminary inquiry in December 2013 - though he testified before me that he had no notes, that he could recall, from the period around September 15, 2012); iii.

On September 15, 2012, between 9:30 p.m. and 11:30 p.m., R.M. was distraught, and it was likely that he was also already very tired from the stress and anxiety associated with what he experienced on September 14, 2012; iv. R.M.’s purported lack of recall on December 10 – 11, 2013 at the preliminary inquiry, about the events alleged herein against the defendants, including what happened on September 14, 2012, led to the judge to conclude that it was “necessary” to enter for the truth of its contents his audiotaped statement of September 16, 2012; to the extent that

the defendants are correct that “memories fade over time”, R.M. would be no exception - although they did have sufficient confidence in his recall to present him as their only witness on this voir dire ; v. It is not unreasonable to conclude that as a result of his reframing the issues in a sequence of circular conversations with the officers, R.M. may have genuinely believed that, although without them saying it, the officers knew something that confirmed the seriousness and likely occurrence of the Bacchus threat being carried out against him.

R.M. may have read into their demeanour or words more than they intended. [ 77 ] Even if R.M. was told that the threat was “confirmed” by independent sources, which I have found he was not, the mere fact of such confirmation adds very little to the information he himself had before he met with the officers on September 15, 2012.

Based on his intermingling with the motorcycle riding community at large (which does include a criminal element), his investigations on the Internet, discussions with his own club members, and The Brotherhood from Montréal, as well as his contacts with Patrick James, this information made it believable for him that he was facing a very serious threat from the membership and possibly sympathizers of the Bacchus Motorcycle Club. ii) Have the defendants shown that when the officers met with R.M. on September 15, 2012, they used threats or inappropriate inducements amounting to duress on R.M., to procure a favourable statement from R.M. on September 16, 2012 against the defendants? [ 78 ] In

summary, the defendants argue that the officers, without good grounds, disproportionately heightened R.M.’s fear and anxiety level, so that R.M. would consider giving a statement to the police as his only option to preserve himself and possibly his family from the ire of the Bacchus Motorcycle Club. [ 79 ] This conduct, they say, rises to the level of misconduct, of such gravity that to permit the prosecution to proceed in the circumstances, would do further harm to the integrity of the justice system.

Such misconduct would “shock the community’s conscience” and/or offend its sense of fair play and decency. [ 80 ] I accept that the defendants have standing to make this residual category abuse of process argument. [ 81 ] On the other hand, I restate that there is no persuasive legal authority in these circumstances which would permit the defendants’ standing to make the argument that their fair trial rights have been impacted, nor is there evidence upon which one could conclude that (if they have standing) the defendants’ fair trial rights have been impacted by the way the officers dealt with R.M. on September 15, 2012.

The defendants, for example, characterize R.M.’s audiotaped police statement as “favourable”. They did not define what they mean by “favourable statement”. I presume they mean it to suggest a statement that implicates the defendants in criminal activity. So their logic would suggest that although R.M.’s statement is reliable and truthful, the Crown should not be permitted to rely on it as evidence at trial, because the officers were “serious but friendly” and “painting a picture of the seriousness of the threat and what they could do to help” according to R.M.’s testimony before me?

Inculpatory evidence is not inherently “unfair” to the fair trial rights of accuseds. Nor do the defendants suggest how his statement is so unreliable as to create unfairness at their trial. [ 82 ] R.M. was the defendants’ only witness on the voir dire .

They gave no specific indication to the court that they considered his testimony unreliable in any material respect. [ 83 ] R.M testified that: his audiotaped September 16, 2012 statement was made when he had good recall of the events in question, and it was truthful; it was also consistent with everything he told the officers on September 15, 2012; and “covered a lot of” what he told them on September 15, 2012. [ 84 ] Having heard the testimony of R.M., Sgt. MacQueen, and Sgt.

Astephen, I am satisfied that the evidence of the officers is more reliable, where a conflict in the evidence exists between them and R.M. [ 85 ] The defendants characterize the officers’ conduct on September 15, 2012, as placing R.M. in a state of duress. R.M. never uses that descriptor. He does suggest that he felt he only had one viable option as a result of his conversations with the officers.

Even if true, is that “duress”? [ 86 ] Insofar as the allegation of “duress” is concerned, I will make some preliminary points and then canvas what appears to be the relevant evidence. [ 87 ] Duress is a formal criminal law concept that can arise under the rubric of a statutory defence of duress in

Section 17 Criminal Code or the common-law defence of duress ( R. v. Ryan , 2013 SCC 3 ). [ 88 ] In

summary , the defence of duress, in its statutory and common law forms, is largely the same and both forms share the following common elements: there must be an explicit or implicit threat of present or future death or bodily harm -- this threat can be directed at the accused or a third party; the accused must reasonably believe that the threat will be carried out; there must be no safe avenue of escape, evaluated on a modified objective standard; there must be a close temporal connection between the threat and the harm threatened; there must be proportionality between the harm threatened and the harm inflicted by the accused, also evaluated on a modified objective standard; and the accused cannot be a party to a conspiracy or association whereby he or she is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association. [ 89 ] In the context presented in the case at bar, the defendants appear to be arguing that R.M.’s will, regarding whether he would, or not, give a statement to the police, was inappropriately overborne by police misconduct – that “but for” the police “misconduct”, R.M. would not have given a statement to the police on September 16, 2012.

[90] They have presented no legal authority, having a similar factual scenario, to support this legal argument. They argue theapplication of a general jurisprudential principles to the facts of this case. [91] I observe that arguments that centre on allegations that the police have overborne the will of an individual, do arise in the caseof statements given by accused persons to persons in authority (e.g. see the seminal case on confessions) –R. v. Oickle 2000 SCC 38, [2000] 2 SCR 3: 57 In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession.Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspectthat it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or incombination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has beenoverborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App.

R. 207 (C.A.), at p. 212, particularly apt: Very few confessions are inspired solely by remorse.

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