R v. Banks, 2022 NSSC 77

SUPREME COURT OF Nova Scotia Citation: R v. Banks, 2022 NSSC 77 Date: 20220315 Docket: Yarmouth, No. 480653 and 480665 Registry: Yarmouth Between: Her Majesty the Queen Plaintiff v. Terry Dale Banks and Wayne Lawrence Banks Respondent Judge: Heard: The Honourable Justice Pierre L. Muise By correspondence Final Written Submissions: February 22, 2022 Counsel: Richard B. Miller and Peter Dostal, for the Plaintiff Michael Power, Q.C., for the Defendant, Terry Banks Paul Niefer, for the Defendant, Wayne Banks APPLICATION FOR DISCLOSURE OF CROWN WITNESS LIST AND

SCHEDULE (Decision rendered orally February 28, 2022) [1] Wayne Banks brought this application seeking an order directing the Crown to provide the Defence with a non-binding list ofwitnesses and a tentative

schedule for the calling of those witnesses, along with timely notice of any changes to the intended witnesses orthe order in which they will be called. In the alternative, he seeks severance of the Counts in the Indictment. Terry Banks joins inWayne’s request, but only provides reasons for the alternative remedy. [2] I will deal first with the request for a witness list and schedule. [3] In the event I release a written version of this decision, I reserve the right to edit it for grammar, ease of reading, organization,structure and complete references, without changing the reasoning or the result. [4] Wayne Banks advances the following reasons for his witness list and

schedule request: 1. Though the Crown is not required to disclose it, it is preferable that it do so, as it minimizes delay by promoting fairness,efficiency and effectiveness, and the Court may order it as part of its trial management function, provided it does not “unfairly orirreparably damage the prosecution”: R. v. Fiddler, 2012 ONSC 2539; R. v. Browne, 2017 ONSC 5047; and, R. v. Felderhof, (ON CA), 2003 CarswellOnt 4943 (C.A.). 2. “Trial judges should take a proactive approach in managing trials to minimize delay, improve efficiency, and change the

‘courtroom culture’”, especially where it impacts trial fairness: R. v. Cody, 2017 SCC 31; R. v. Potter, 2020 NSCA 9; and, R. v.Pickton, 2007 BCSC 2027. 3. Though the Crown stated it was of the view that “it would make sense to start with police then Independent [Fisheries]staff”, it did not present that as its plan, and it added that it did not “want to give the impression there is no need to be ready to deal withother witnesses in the first week as well”. 4.

He faces a seven-count indictment, covering four separate complainants, incidents and timeframes, with some overlap oftimeframe between two of the incidents only. The Crown has subpoenaed about 45 witnesses. The trial is split in five chunks of timespread out over roughly one-half year. Without knowing which witnesses are expected to be called during each chunk, he will have toreview and prepare for all potential witnesses. That is a waste of time and expense. 5.

It may result in disclosure and evidentiary issues being overlooked, causing inefficiency and delay, in a trial that is alreadyscheduled to finish close to the Jordan deadline. 6. The list and

schedule will help him prepare and plan for trial, thus promoting trial fairness. 7. The Cook decision, relied on by the Crown, must be read in light of the much more recent Supreme Court of Canadadecision in Krieger v. Law Society (Alberta), 2002 SCC 65 , [2002] 3 S.C.R. 372, where it was stated that “decisions thatgovern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion” and “aregoverned by the inherent jurisdiction of the court to control its own process”: R. v. Felderhof, supra. 8. He is not seeking an exceptional remedy.

He is merely asking for an anticipated order of witnesses to ensure the smooth,efficient and fair running of the trial, recognizing that the witnesses may not be called in that order, and some may not be called at all.That is especially important when dealing with complications arising from a pandemic and a strained court system. Proceeding without aplan creates a significant risk of serious repercussions for the management of the trial. 9. The Defence invited discussions as to “admissibility of evidence or potential agreed facts”.

The Crown responded that it didnot see “much opportunity for economy since there aren’t any witnesses who are strictly continuity or particularly peripheral”. That isinconsistent with its brief, where it suggests that the Defence is withholding such agreement. [5] The Crown opposes both requests. The reasons it provides for opposing the witness list and

schedule request include thefollowing: 1. It has no obligation to call any particular witness: R. v. Cook, (SCC), [1997] S.C.J. No. 22. 2. It has no obligation to disclose the witnesses it will call: Mississauga (City) v. Ciocan, [2015] O.J. No. 2871 (Ont. Ct. Jus.). 3. Even disclosure under R. v. Stinchcombe, (SCC), [1991] S.C.J. No. 83, has its limits. 4. Though the requested disclosure is good practice, being ordered to do so fetters the Crown’s discretion to decide whichwitnesses to call and in which order: R. v. Pinkus, [1999] O.J. No. 5464 (Ont. Sup. Ct. of J.).

It effectively trumps “the exercise of Crowndiscretion”. 5. Protecting prosecutorial discretion advances the public interest by freeing prosecutors of judicial or political interference: R.v. Anderson, 2014 SCC 41. 6. Prosecutorial discretion should only be interfered with in “extraordinary and unique circumstances” amounting to “an abuseof process”: R. v. Auclair, 2014 SCC 6; R. v. Power, (SCC), [1994] 1 S.C.R. 601. 7. Directing “the Crown as to which witnesses it should call or in what order” is not an acceptable exercise of court authority,except possibly in unusual circumstances: R. v. Pickton, supra. 8.

The Felderhof and Pickton cases upon which the Defence relies involved unique and extreme circumstances, includinglengthier and more complex proceedings. 9. The Crown has not yet prepared a witness list, and cannot produce what it does not have, but it did advise the Defence, in itsDecember 21, 2021 email, that it planned to start with the police witnesses then proceed to present evidence from the staff ofIndependent Fisheries. 10. Though the Crown exercises a public duty, free of any notion of winning or losing, as described in Boucher v.

R., (SCC), [1955] S.C.R. 16, “the adversarial process is an important part of our judicial system and an accepted tool in our searchfor the truth” and the Crown must be allowed to vigorously pursue justice within that process: R. v. Cook, supra. 11. The Crown, having been satisfied with the testimony of one of its witnesses, may properly decide not to call another witness itpreviously intended to call to avoid the possibility of inconsistent statements. It need not provide the Defence with an opportunity toexploit such potential inconsistencies.

It may modify its trial strategy, “provided that the modification does not result in unfairness to theaccused”: R. v. Jolivet, 2000 SCC 29. 12. Warning the Defence that it should be prepared to respond to the whole case preserves the Crown’s discretion to choose andmodify the ordering of witnesses, which is of increased importance because there are reluctant and international witnesses and Covidissues to deal with. 13. The order requested provides an extraordinary remedy and should only be made in lengthy and complex cases.

This case is notoverly complex and could be heard in two weeks if agreements were reached regarding the voluminous documentary evidence. The core

of the case will be the evidence of the nineteen witnesses who provided formal statements. Ten of those are associated with Independent Fisheries, a complainant, and three are associated with D-Light Seafoods, the company Wayne Banks worked for. The remaining witnesses will provide evidence of “continuity, authenticity and background”. 14. The Defence has had the disclosure for years and presumably would already have prepared for the initial trial dates. It should be ready to cross-examine any witness.

The Crown routinely does so with no disclosure and no notice of who the witnesses will be. [ 6 ] I agree with the points made by the Crown except the following points for the following reasons: 1. I disagree that being directed to advise the Defence of the witnesses who are expected to be called, and the order they are expected to be called in, fetters or trumps the Crown’s discretion to decide which witnesses to call and the order to call them in. The Crown still decides those points and it is still free to change its mind, and modify its trial strategy, at any time.

Requiring timely notice of intention to change the witness list or schedule, similarly, does not fetter or trump Crown discretion. Both merely require the Crown to inform the Defence in advance of how it intends to exercise its discretion. 2. The Court in R. v.

Pinkus , at paragraph 9, stated: “One cannot be said to have discretion if one is ordered to disclose how discretion will be exercised.” I agree with that statement to the extent that it describes a situation where, once the Crown has disclosed how it intends to exercise its discretion, the Crown is bound to exercise its discretion in the way that it said it intended to. However, if the Crown remains free to adjust its presentation of witnesses, it maintains its discretion to determine which witnesses to call and when. 3.

The Crown suggests that changing its intended order of witnesses after disclosing it, may prompt adjournment requests, and that possibility may pressure the Crown to refrain from altering its witnesses or witness schedule, thus effectively limiting its exercise of discretion. As will be referenced further later, the authorities presented highlight the greater risk that the Defence will be put in a position where it needs to request an adjournment to properly prepare for cross-examination if it has no notice of the intended witnesses and witness schedule.

The Crown is opposing disclosure of a witness list and schedule, despite that elevated risk. Consequently, the lesser risk of an adjournment resulting from a witness change ought not cause it sufficient concern to pressure it into maintaining its planned witness schedule. Furthermore, the possibility of a trial tactic causing delay always looms in the background as a factor which may influence the Crown’s exercise of discretion. That potential delay informs the Crown’s exercise of discretion. It does not fetter it.

Therefore, the potential for a change in the witness schedule, and the accompanying possibility it might prompt an adjournment request, does not provide reasonable grounds to refuse to make the order requested. 4. I disagree that the order requested provides an extraordinary remedy and should only be made in lengthy and complex cases. The Felderhof and Pickton cases referred to in support of that submission were lengthy and complex cases in which the order was made. However, the remedy which was referred to as being exceptional was directing the manner or order in which evidence was to be called.

Neither case described the witness list and

schedule remedy as being extraordinary. Rather, as submitted by the Defence, it is merely part of the trial judge’s inherent trial management power. As noted in Felderhof , that power must be exercised with care to avoid an overly interventionist approach that could raise a reasonable apprehension of bias. However, that does not make it an extraordinary remedy to require disclosure of a list of intended witnesses and when they are expected to testify. 5.

I disagree that the Crown’s email of December 14, 2021, to the Defence, communicated that it planned to start with the police witnesses then proceed to present evidence from the staff of Independent Fisheries. As noted by the Defence, the Crown merely stated that made sense, then proceeded to warn the Defence that it should prepare for the other witnesses as well for the first week of the trial. That is not notice of a witness plan. In addition, the Crown brief acknowledges that it does not yet have a witness list.

So, it could not have presented it as a plan. [ 7 ] In relation to other points raised by the Crown, I make the following comments: 1. There is no dispute that the Defence has had the disclosure for years and presumably would already have prepared for the initial trial. However, that trial was scheduled to start June 24, 2019, which is over two years and eight months before the now scheduled start date of March 7, 2022. It is unlikely that that the Defence would be ready to cross-examine the witnesses without significant additional trial preparation. 2.

The Crown suggests that it is fair to expect the Defence to be ready for any potential witness revealed in the disclosure, at any time, because the Crown routinely cross-examines defence witnesses with no advance disclosure and no notice of intended witnesses. That submission ignores the fact that, unlike an accused person, the Crown is not at jeopardy of being wrongfully convicted.

In addition, absent certain established exceptions, requiring the defence to disclose intended witnesses in advance would risk breaching the accused’s right to silence and their right to not be forced to provide information for the Crown to use against them. Since the Crown already has a duty to disclose all relevant information, requiring it to provide a list of witnesses, and the order in which they will be called, does not have a similar prejudicial effect upon the Crown. It only sets a deadline for the Crown to make its initial assessment on how it will exercise its discretion to present its case.

Plus, like the defence, if the Crown is of the view that it has been unable to properly prepare for cross-examination, it may request an adjournment. 3. It is true that the Crown cannot disclose a witness list if it does not have one. However, as part of its case management function, the court routinely directs timelines for certain steps, such as filing of briefs.

Therefore, it is within the proper scope of a trial judge’s case management function to set a deadline for the Crown to prepare and disclose a witness list and schedule. [ 8 ] I also note the points which follow. [ 9 ] As already stated, I rejected the Crown submission that the Felderhof and Pickton cases directed that orders to disclose a witness list and

schedule were to be reserved for exceptional situations such as long and complex trials. Even if I had accepted that submission, I am not bound by either of those cases, and there are subsequent decisions binding me which, as stated by the Defence, direct that “trial judges should take a proactive approach in managing trials to minimize delay, improve efficiency, and change the ‘courtroom culture’”. The Cody and Potter decisions advanced by the Defence for that principle both follow the direction to that effect in R. v. Jordan , 2016 SCC 27 . As stated at paragraph 752 of Potter , after referencing pre- Jordan decisions dealing with trial

management issues: “The scope of a trial judge’s case management functions must also be viewed in light of Jordan ’s direction that the culture of complacency in criminal proceedings is not to be tolerated.” [ 10 ] There are Jordan issues in the case at hand, in relation to Wayne Banks, which heighten the Court’s need to be vigilant and take reasonable measures to avoid any further delay. The September 2021 trial dates were adjourned because Terry Banks’ previous lawyer withdrew and his current lawyer could not be ready in time. At that time, the Court raised concerns regarding s. 11(

b) delay issues relating to Wayne Banks. His lawyer correctly pointed out that, after deducting the waiver periods, the new trial dates would still be within the Jordan timelines. However, the scheduled end of trial approaches those deadlines. That makes it even more important to take steps to help prevent any further delay. Ordering the Crown to provide a tentative witness list and

schedule would be such a step. [ 11 ] Even though only 19 witnesses are identified as being core Crown witnesses, over 40 Crown witnesses have been subpoenaed. I agree with the Defence that having to prepare for the beginning of trial without having any tentative

schedule as to who will be called first would be a tremendous waste of the Defence’s legal resources. It would create a heightened risk of the Defence needing to request adjournments to properly prepare for cross-examination. [ 12 ] Also, the trial is not scheduled to run continuously. There are gaps between blocks of trial days. Therefore, the Defence would have to review its preparation for all remaining witnesses in advance of each new block of trial days. It would also have to review all documents it sees as potentially relating to all those witnesses.

Thus, some of the waste of legal resources would be repeated for each block of trial time. [ 13 ] The Crown noted the case was document heavy. That increases the risk of needing extra time to find relevant documents to use on cross-examination, for fear of overlooking documents required to make full answer and defence. The Crown noted that some of the witnesses were reluctant witnesses. That increases the chance that their evidence will not be completely consistent with the statements they have given.

That, in turn, further increases the chance that there may be documents useful to the Defence for cross-examination, that it did not consider to be useful during trial preparation. That factor augments the risks of needing extra time to find documents for fear of overlooking them. [ 14 ] In a document heavy case, spreading your preparation attention amongst a large number of witnesses can easily lead to transposing of documents as relating to one individual, when they relate to another.

That can result in time being wasted searching for useful documents, or, worse yet, overlooking significant documents and losing the opportunity to cross-examine on them. Also, as noted by the Defence, it can result in overlooking disclosure and evidentiary issues. [ 15 ] It could be argued that these risks could be eliminated through thorough trial preparation. However, it is often the case, even where the Crown witnesses are fully cooperative, that the importance of particular documents does not surface until the witness to which they relate actually testifies.

With the expectation of reluctant witnesses, as already noted, there is an even higher risk of that occurring. [ 16 ] The more the Defence can focus on the witnesses that will be called, as the various blocks of trial time approach, the better prepared it will be. That promotes an efficient use of trial time and minimizes the chance that adjournments may be needed. [ 17 ] If the Crown is not directed to provide a tentative witness

schedule in advance, only the Crown will have the luxury of focusing more narrowly on the witnesses that will be presented in the coming days or block of days. The Defence will have to spread its focus on all potential witnesses. In the circumstances, that would diminish the fairness of the trial. [ 18 ] Crown Prosecutors routinely inform the Court, on the record, of the intended order of calling of witnesses and when they are expected to testify. It assists in making the best use of Court time and in best accommodating the witnesses.

For example, it allows the Court to pre-arrange staff to work outside regular hours when reasonably required to accommodate the witnesses. A collateral benefit is that it also facilitates the Defence trial preparation.

Often, the Crown will already have informed the Defence for that purpose. [ 19 ] Even in Pinkus , where the Court refused to “order the Crown to inform the defence as to whether a particular witness would be called”, the Court, at paragraph 11, stated: “it would be helpful, indeed advisable, for the Crown to inform the defence in advance of its intention to call particular witnesses, and generally inform the defence of the anticipated list and timeframes of witnesses”, and, “[t]he failure to do so would inevitably lead to numerous adjournments being sought so that defence counsel might properly prepare to defend the case from hour to hour and day to day” which “is not in the best interests of the administration of justice”.

Those same sentiments are echoed in other decisions. I agree with them. [ 20 ] In the circumstances of the case at hand we do not have the luxury of risking such unnecessary delay. [ 21 ] All justice system participants, including the courts, have a responsibility to take all reasonable steps to avoid unnecessary delay and promote reasonably fair, efficient and expeditious trials. [ 22 ] Being required to disclose the witnesses and witness

schedule does not damage the prosecution. Arguably, it assists the prosecution by setting a deadline for some of its trial preparation, which helps overcome natural tendencies to put it off. [ 23 ] It also promotes the search for the truth by better facilitating Defence preparation so that it can conduct an effective cross- examination to test the evidence.

Since a Boucher Crown is not to concern itself with the notion of winning or losing, that result is consistent with the Crown’s duty to the public. [ 24 ] Considering these circumstances, factors and points, I conclude that it is proper to, and do, order that the Crown provide the Defence with a list of the witnesses it intends to call, and the order in which they are expected to be called, for each block of trial days, as follows: at least 5 calendar days before the first day of the first block of trial days (which is only 2 days from now, but since it is so close to the beginning of the trial it is to be provided by noon on that day); and, at least 12 calendar days before the first day of each subsequent block of trial days, by 4:00 PM on those days. [ 25 ] Also, should there be any change to the intended list of witnesses, or to when they are expected to be called, the Crown shall

inform the Defence as soon as reasonably practicable of that change. [ 26 ] Given my conclusion on the witness list issue, it is unnecessary to deal with the severance issue and I will not do so. ______________________________ Pierre L. Muise, J.