2012 SKCA 124 Date:, 2012 SKCA 124

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 124 Date: 2012-12-17 Between: Docket: CACR2050 Her Majesty the Queen Appellant - and - Barry Boyne Respondent Coram: Richards, Ottenbreit and Caldwell JJ.A. Counsel: Anthony Gerein for the appellant Michael Owens for the respondent

Appeal: From: 2011 SKQB 295 Heard: June 18, 2012 Disposition: Appeal allowed Written Reasons: December 17, 2012 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Richards The Honourable Mr. Justice Caldwell Ottenbreit J.A. I. Introduction [ 1 ] The appellant, Barry Boyne (“Mr. Boyne”), was convicted in Provincial Court of impaired driving and dangerous driving. He was sentenced to a 6-month conditional sentence and an 18-month driving prohibition. Mr.

Boyne appealed to the Court of Queen’s Bench arguing that his right to make full answer and defence was denied by the late and incomplete disclosure by the Crown of an instance of professional discipline the R.C.M.P. had brought against the lead investigator in the case. Mr. Boyne, on appeal, also argued that the trial judge had erred by dealing with the disclosure issue after rendering the decision convicting him and by not allowing him to adjourn the matter to obtain further disclosure, reopen the case or to challenge the officer’s credibility. The

summary conviction appeal court granted the appeal and ordered a new trial. The Crown seeks leave to appeal and appeals the decision of the

summary conviction appeal court. For the reasons which follow the Crown appeal is granted. II. Background and Facts [ 2 ] The R.C.M.P. had established a driving check stop on Highway 12, north of Saskatoon. On October 31, 2008 Mr. Boyne was driving toward the check stop. Instead of stopping at the check stop, he collided with a stopped vehicle, which then collided with a second vehicle. The R.C.M.P. officers were forced to jump out of the way to avoid injury. Mr. Boyne did not stop even after the collisions, but continued through the check stop at a speed of approximately 10 km/h.

Officers chased his vehicle, broke the driver’s window and yelled at him to stop. He was unresponsive. Two officers were able to stop the vehicle by bodily entering or reaching into his vehicle. Mr. Boyne had to be forcibly removed from the vehicle by the officers, who smelled alcohol and urine on his person. [ 3 ] At the trial Mr. Boyne disputed the location of the check stop. He argued that it was just over the crest of an overpass and as a result, he was unable to stop safely and that this, and not impairment, was the cause of his collision with the vehicles.

His argument was supported by the testimony of his brother who, although not present on the night of the incident, provided pictures of the overpass area and skid marks there and the evidence of another witness who had been drinking and was an occupant of a vehicle stopped at the check stop at the time of the incident. The evidence of two drivers who had not been drinking and had stopped at the check stop, including one whose vehicle was hit, as well as the testimony of Cst. Madden, who was working at the check stop, and the testimony of Sgt.

Gherasim, who organized the check stop, placed the location substantially past the overpass. [ 4 ] The trial judge found as a fact that the check stop was located significantly north of the top of the overpass and there was ample time for a driver to identify the presence of emergency vehicles, slow down and safely come to a stop. The trial judge came to this conclusion after reviewing in detail the evidence of the witnesses supporting Mr. Boyne’s argument, and explaining why he could not accept the evidence of those witnesses over the prosecution witnesses. It is noteworthy that Sgt.

Gherasim was one of four witnesses whose evidence as to the location of the check stop was accepted by the trial judge. [ 5 ] After the Crown and defence had closed their cases and the evidence was concluded, the trial judge adjourned the matter for decision. Approximately two weeks before the adjourned date, defence counsel wrote to the prosecutor indicating that he had read in a newspaper that Sgt. Gherasim had been disciplined by the R.C.M.P. and that he was inquiring about that. As a result, the prosecutor

forwarded an email to the clerk of the Provincial Court a few days later advising that a disclosure issue under R. v. McNeil , 2009 SCC 3 , [2009] 1 S.C.R. 66 had been brought to the Crown’s attention by the defence and suggested that the matter be brought before the trial judge prior to the adjourned date. [ 6 ] The clerk of the court responded to Crown counsel the next day that the matter would remain set for the adjourned date and that the court had received no formal notice of any issues. The day before the adjourned date, the prosecutor provided to counsel for Mr.

Boyne the following letter: Further to your letter dated July 29, 2010, and further to the Crown’s ongoing disclosure obligations and pursuant to R. v. McNeil, the RCMP Warman Detachment have forwarded by email received August 10, 2010, the following information with respect to Sgt.

Warren Gherasim, a relevant Crown witness, in the above referenced to Saskatoon Provincial Court matters: Findings or admission of guilt under the RCMP Act within the past five years: Date Description Sanction February 29, 2008 Disgraceful Conduct Sec 39(1) 8 days pay RCMP Regulations Member was involved in a motor vehicle accident, alcohol was a contributing factor. No criminal charges. [ 7 ] On the adjourned date the trial judge opened court and immediately directed the clerk to pass out copies of his decision in the case. Counsel for Mr. Boyne then immediately raised the issue of Sgt.

Gherasim’s service record and the disclosure received by letter from the Crown the day before, arguing that the disclosure was both late and incomplete and that the service record should be made available to the defence to allow full answer and defence under s. 7 of the Charter . The trial judge and both counsel then embarked on a protracted discussion about that issue during which both counsel stated and argued their positions about the disclosure. [ 8 ] Mr. Boyne’s counsel argued that the late bare-bones description of disgraceful conduct by Sgt.

Gherasim provided by the Crown was insufficient and that it was essential to obtain more disclosure because Sgt. Gherasim’s evidence was contradicted and credibility was an important factor in the trial. He indicated that he might want to cross-examine Sgt.

Gherasim for a number of purposes including impeaching his credibility, eliciting his experience of drinking and driving personally, eliciting his version of the events leading to the discreditable conduct, and determining whether there was a finding by the tribunal that he was not believed or a finding that he did not actively recall the events leading to the finding of disgraceful conduct. He did not, however, make a formal application to cross-examine him or for that matter make any other applications. [ 9 ] The Crown argued that the discipline record was not relevant to the proceedings because (

i) it was separate from the charges before the court, (ii) had nothing to do with the investigation of Mr. Boyne’s matter, (iii) there were no criminal charges against Sgt. Gherasim, (iv) he had received only an internal sanction, and (

v) the issue was concluded months before the incident which was being dealt with by the court. The Crown took the position that no further disclosure on the record would be forthcoming. [ 10 ] The trial judge observed that the refusal to disclose by the Crown is reviewable by the court. He then determined that the misconduct of Sgt. Gherasim could be characterized as serious in the terms outlined by McNeil .

He initially stated that the onus to establish that there should be disclosure was on the defence and stated at p. 16 of the transcript: As I read McNeil , in essence the -- there is a multistage process where at the outset the defence, based admittedly on minimal information, has to show the Court that the misconduct is either related to the investigation or could reasonably impact on the case against the accused. However, later he was uncertain about who had that onus.

At p. 17 of the transcript he stated: While the defence is not required to show me that the information that may be there is going to have an impact on the case, I think that I have to make some sort of preliminary conclusion as to whether or not, based on the information I have received, the records have a reasonably plausible likelihood of having an impact on the case against the accused. [ 11 ] After reviewing the nature of the misconduct in the context of the case and its issues he concluded at p. 17 of the transcript:

In this case, the only -- the only significance would be to deal with Sergeant Gherasim’s credibility, and I do not find that there is anyplausible likelihood that the records that may be arising from the disciplinary matter of February 29, ’08, would have an impact onSergeant Gherasim’s credibility. Accordingly, I am not going to proceed any further with the McNeil matter, and I will proceed with my decision in this matter today. He then proceeded with his decision which he had distributed when court opened. III. The

Summary Conviction Appeal Court Decision [12] On appeal to the

summary conviction appeal court Mr. Boyne argued three grounds of appeal, one of them being that the trialjudge erred in law by first handing out his decision and only then hearing the McNeil issue and making his determination. He arguedthat neither the Crown nor defence as a result had the opportunity to address the McNeil issue. The

summary conviction appeal courtjudge set aside the convictions and directed a new trial based on this ground. [13] The

summary conviction appeal court judge stated that Mr. Boyne was denied the opportunity to obtain sufficient informationrespecting the issue of what disclosure, if any, should be forthcoming in relation to the question of Sgt. Gherasim’s credibility. Hefurther stated that the discussion of the disclosure issue after the written decision was provided must have appeared to be a futile exerciseto Mr. Boyne because Mr. Boyne was in no position to deal with the issue given that it had recently arisen. He went on to say respectingthe misconduct, that if Sgt.

Gherasim had testified at a discipline hearing and there were findings of fact made against him in thatproceeding, that may have impacted on his credibility. He also determined that both he and the trial judge had insufficient informationbefore him to determine the McNeil and O’Connor (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411) issues. Implicit in thisdetermination is that the trial judge was wrong to not order some kind of further disclosure. IV. Analysis [14] The Crown raises four issues in their factum.

It is necessary to deal only with two of them; the hearing of the McNeil matter afterthe decision was distributed and whether Mr. Boyne’s right to full answer and defence under s. 7 of the Charter had been denied by thetrial judge’s handling of and ruling on the disclosure issue. 1. Did the trial judge err by hearing argument on the discipline record after giving his written decision convicting Mr. Boyne? [15] The

summary conviction appeal court judge stated that the discussion which took place about the McNeil issue was futile becausethe decision had already been given and the accused was in no position to deal with the issues because they had just arisen. I cannotagree. [16] The clerk of the court advised counsel that the matter would remain set for the adjourned date but also indicated that any issuescould be raised on that date. In light of that, it would have been preferable for the court to deal with defence counsel’s issues first beforethe written decision was distributed.

That said, while it is true that defence counsel did not technically have an opportunity to raise theMcNeil issue prior to the distribution of the written decision, it appears that the written decision was not dealt with further until the courtand counsel had actually addressed and dealt with the McNeil issue. [17] The distribution of the decision was not fatal to what transpired thereafter. I say this because the trial judge had both thejurisdiction and the responsibility to deal with the issue raised by Mr. Boyne’s counsel. He was not functus. In R. v. Mysko (1980), (SK CA), 2 Sask.

R. 342 (C.A.), this Court stated at para. 21: [21] No question arises as to the right of the appellant to have made the application for leave to introduce fresh evidence after thefinding of guilty, but before the imposition of sentence. In R. v. Lessard, [ (ON CA), 30 C.C.C. (2d) 70], the OntarioCourt of Appeal made it clear that a judge sitting alone is not functus officio, following a finding of guilt, until he has imposed sentenceor otherwise finally disposed of the matter.

Thus he may, in his discretion, following the finding of guilt, vacate that finding, or open thecase and permit the accused to tender further evidence. [18] The trial judge, therefore, still had the power to deal with the disclosure issue. Moreover, defence counsel acknowledged to the

trial judge that he was not functus and invited him to deal with the McNeil issue despite the distribution of his decision. Some optionsavailable to the judge were that he could deal with the issue that day, adjourn as may be necessary to deal with it and, depending on theoutcome of that issue, vacate the finding of guilt and allow the accused to reopen the trial to address the content of any further disclosureif ordered. [19] The trial judge was correct to temporarily put his decision to the side and deal with defence counsel’s concerns then and there. Herecognized that a substantial matter had been raised and treated it as such. [20] In my view, the

summary conviction appeal court judge erred by determining that the trial judge was wrong to deal with theMcNeil issue after the distribution of his decision and that this warranted a new trial. 2. Was Mr. Boyne denied the right to full answer and defence under s. 7 of the Charter by the trial judge’s handling of andruling on the disclosure issue. [21] Although he does not mention s. 7 of the Charter, the

summary conviction appeal court judge effectively decided that the accusedhad been denied his right to pursue further disclosure. There are a number of aspects to this issue. Apart from the matter of whetherfurther disclosure should have been ordered, there are the preliminary issues of whether there was enough information before the trialjudge to determine further disclosure was warranted and whether the defence did not have the opportunity to properly address the issue. [22] The

summary conviction appeal court judge took the view that the short description of the misconduct was insufficient to afford abasis to determine further disclosure. Quite apart from McNeil, I agree with the trial judge that a court need not have the full record infront of it to determine relevance and further disclosure. Provided there is clearly enough information which will allow the judge todetermine the nexus between the disclosure sought and the issues in the case, the information is sufficient.

How much information isrequired will vary on a case by case basis. [23] The Crown, in this case, disclosed the date and nature of the misconduct, the sanction imposed on Sgt. Gherasim and whether itwas connected to the events before the court.

In the context of the refined issue to which the defence argument was targeted and onwhich the defence could argue at best warranted further disclosure and a reopening of the trial, this was sufficient information to allowthe trial judge to make a determination of relevance. [24] The short outline of the misconduct and the late stage at which the misconduct had been disclosed by the Crown did not, in fact,hamper defence counsel’s opportunity to make arguments and articulate why further disclosure may be necessary.

Defence counsel wasunder no illusions, given the position of the Crown, that an application was necessary to get further disclosure. Faced with the Crown’sposition, Mr. Boyne’s counsel acknowledged that his client had no automatic right to disclosure and that to get disclosure relevancewould have to be determined. He pushed ahead with his argument on that issue. Had defence counsel been ill prepared to fully addressthe issues raised by him, an application by him to adjourn would have been expected at the outset after being advised of the Crown’sposition. No such application was made. During the hearing, Mr.

Boyne’s counsel mused about a number of options open to him inresponse to the disclosure provided, including asking for an adjournment to get further disclosure, asking for an order that furtherdisclosure be made, or a reopening of the trial to allow cross-examination of Sgt. Gherasim on either the

summary details of his servicerecord or a more expanded service record after further disclosure. Despite these musings, counsel made no formal applications. [25] Defence counsel was clearly not unprepared. The defence participated in what amounted to at least an informal application todetermine relevance and spent considerable time very forcefully arguing its position. In my view, the defence had the opportunity tofully address and argue whether more disclosure should be ordered and there was no unfairness in that regard. [26] I see no breach of Mr.

Boyne’s s. 7 rights to full answer and defence in the trial judge proceeding to hear argument by the defenceat that juncture in the trial, on the basis of the limited disclosure given by the Crown. [27] Because the

summary conviction appeal court judge determined that the information given by the Crown was insufficient, he didnot determine whether the trial judge was correct to decline to order further disclosure on the basis that the misconduct record was notrelevant. It therefore falls to this Court to make that determination. However, before addressing this issue it is helpful to review theeffect of McNeil as well as the Crown’s disclosure duties pursuant to R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, inlight of McNeil.

[ 28 ] Prior to McNeil , police disciplinary records were treated as third party records not in the possession of the Crown and not normally subject to disclosure under the Stinchcombe principles and duties. Accused persons who wanted to obtain production of such records were required to make an application pursuant to O’Connor . They had the onus of showing that those records were likely relevant to making full answer and defence and that their interests as an accused outweighed the privacy interests of the police officer in question.

O’Connor set a higher threshold for production and disclosure than Stinchcombe . [ 29 ] McNeil has modified Stinchcombe disclosure. There is now a duty on the Crown to inquire about disciplinary records, if they are put on notice that they may contain information relevant to the case. Where Crown counsel having inquired is unable to get the records, he or she must advise the defence accordingly so that the defence can weigh its options.

McNeil also imposed a corollary duty on the police to treat certain kinds of such records as first party disclosure which they must provide to the Crown as part of the fruits of their investigation.

The Crown must then review such records to determine if they will be disclosed to the defence without an O’Connor application. [ 30 ] At para. 15 of McNeil , Charron J. provides the general outline of these duties: [15] As I will explain, records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the "first party" disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused.

The Crown, in turn, must provide disclosure to the accused in accordance with its obligations under Stinchcombe .

Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O'Connor regime for third party production. [ 31 ] The net effect of this is that where the record reflects “serious misconduct” either related to the investigation or where it could reasonably have an impact on the case against the accused, it must be disclosed to the Crown by the police as first party disclosure.

Examples of such misconduct were described by Charron J.: [54] When the police misconduct in question concerns the same incident that forms the subject-matter of the charge against the accused, the police duty to disclose information concerning police disciplinary action taken in respect of that misconduct is rather self- evident. To state an obvious example, if a police officer is charged under the applicable provincial legislation for excessive use of force in relation to the accused's arrest, this information must be disclosed to the Crown.

Where the misconduct of a police witness is not directly related to the investigation against the accused, it may nonetheless be relevant to the accused's case, in which case it should also be disclosed. For example, no one would question that the criminal record for perjury of a civilian material witness would be of relevance to the accused and should form part of the first party disclosure package.

In the same way, findings of police misconduct by a police officer involved in the case against the accused that may have a bearing on the case against an accused should be disclosed. [ 32 ] McNeil also articulates some broad principles as to how the issue of relevance may be determined for the purposes of the first party disclosure duty of the police: [53] While the obligation itself is firmly established, the difficulty lies in identifying the contours of relevance for the purposes of the police's first party disclosure obligation.

The particular question that this case exemplifies is whether information of misconduct by a police officer involved in the case against the accused should form part of the first party disclosure package provided to the Crown for its assessment of relevance according to the edicts of Stinchcombe . Obviously, the accused has no right to automatic disclosure of every aspect of a police officer's employment history, or to police disciplinary matters with no realistic bearing on the case against him or her.

However, where the disciplinary information is relevant, it should form part of the first party disclosure package, and its discovery should not be left to happenstance. … [59] … Where the information is obviously relevant to the accused's case, it should form part of the first party disclosure package to the Crown without prompting .

For example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it becomes incumbent upon the police force, in fulfilment of its corollary duty of disclosure to the Crown, to look into those criminal cases in which the officer is involved and to take appropriate action. Of course, not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused's case.

The officer may have played a peripheral role in the investigation, or the misconduct in question may have no realistic bearing on the credibility or reliability of the officer's evidence. The kinds of information listed in the Ferguson Report can provide useful guidance on those types of matters in respect of which a police force may well be advised to seek the advice of Crown counsel. [Emphasis in original] [ 33 ] Of note is that an accused has no automatic right to disclosure of a disciplinary record or to matters with no realistic bearing on the case against him or her.

Moreover, “not every finding of police misconduct … will be of relevance to an accused’s case”. However, misconduct that is obviously relevant or has a realistic bearing on the credibility or reliability of the officer’s evidence should be provided to the Crown.

[34] Without foreclosing more categories, Charron J. adopts five types of police misconduct (referred to as the Ferguson Five) as auseful starting point for material that should be provided to the Crown by the police for further review: 57 The Ferguson Report concluded that leaving the entire question of access to police disciplinary records to be determined underthe O'Connor regime for third party production "is neither efficient nor justified" (p. 15).

In order to assist in bridging the gap betweenfirst party disclosure and third party production, the Ferguson Report made a number of recommendations, including the automaticdisclosure by the police upon request by the Crown of the following information regarding acts of misconduct by a member of theToronto Police Service who may be a witness or who was otherwise involved in a case before the court (at p. 17): a. Any conviction or finding of guil[t] under the Canadian Criminal Code or under the Controlled Drugs and Substances Act [for whicha pardon has not been granted]. b.

Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act. c. Any conviction or finding of guilt under any other federal or provincial statute. d. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act. e. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.

That said, out of an abundance of caution the police are well advised to seek the guidance of the Crown whenever they believe that themisconduct may be relevant to the case at hand even if it does not neatly fall into the Ferguson Five categories. [35] Once the police bring a matter to the attention of the Crown or the Crown has made inquiries and has received from the policedisclosure of the matter, McNeil assigns to the Crown a gate-keeper function respecting disclosure of that matter to the defence. [36] The exercise by the Crown of its gate-keeper function and its determination whether the misconduct record should be disclosed tothe defence, will be based on Stinchcombe principles as stated by Charron J. in McNeil (para. 58).

It bears mentioning at this point that,in my view, McNeil did not establish a new test by which the Crown determines whether it must disclose to an accused a misconductrecord in its possession. I take the comments of Charron J. in McNeil about whether the record is “obviously relevant, reflects seriousmisconduct, has any realistic bearing on the case or could reasonably impact the case” as guidance to the police respecting their firstparty obligation to provide the record to the Crown. That said, this does not mean that these concepts can play no

part in theperformance of the Crown’s Stinchcombe duties. It is just that they in no way restrict the Crown’s broad duty to provide disclosure. [37] The proper approach for determining if the right to full answer and defence has been infringed is set forth in R. v. Dixon, (SCC), [1998] 1 S.C.R. 244. In R. v. Upshaw, 2006 SKCA 124, 285 Sask. R. 301, Richards J.A. affirmed that approach andoutlined the test at para. 11: 11 The proper approach for considering an alleged violation of the right to disclosure was set out by Cory J., writing for the Court, inR. v. Dixon, (SCC), [1998] 1 S.C.R. 244.

Where the undisclosed material becomes available for review at trial, thejudge must evaluate it in relation to the Stinchcombe threshold and determine if the Crown has breached its obligation to disclose. If thatobligation has been breached, an order for production if necessary, and perhaps an adjournment, will be the appropriate remedy. … [38] The Crown’s Stinchcombe duties are reiterated and summarized by Charron J. at para. 18 of McNeil: 18 While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions.

Unless the information isclearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in itspossession. The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure inthe usual course may result in harm to anyone or prejudice to the public interest.

The Crown's exercise of discretion in fulfilling itsobligation to disclose is reviewable by a court. [39] The defence application for disclosure in response to the Crown’s resistance to disclose, in essence, becomes a review by the courtof the Crown’s performance of its obligation.

The test to be employed by a court, in that case, is whether there is the “reasonablepossibility that the withholding would impair the accused’s right to make full answer and defence” as enunciated by Sopinka J. at pp. 340and 341 of Stinchcombe: The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonablepossibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege.

The trial judge might also, in certain circumstances, conclude that the recognition of anexisting privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus requiredisclosure in spite of the law of privilege. The trial judge may also review the decision of the Crown to withhold or delay production ofinformation by reason of concern for the security or safety of witnesses or persons who have supplied information to the investigation.

Insuch circumstances, while much leeway must be accorded to the exercise of the discretion of the counsel for the Crown with respect to

the manner and timing of the disclosure, the absolute withholding of information which is relevant to the defence can only be justified onthe basis of the existence of a legal privilege which excludes the information from disclosure. The trial judge may also review the Crown's exercise of discretion as to relevance and interference with the investigation to ensure thatthe right to make full answer and defence is not violated. I am confident that disputes over disclosure will arise infrequently when it ismade clear that counsel for the Crown is under a general duty to disclose all relevant information.

The tradition of Crown counsel in thiscountry in carrying out their role as "ministers of justice" and not as adversaries has generally been very high. Given this fact, and theobligation on defence counsel as officers of the court to act responsibly, these matters will usually be resolved without the intervention ofthe trial judge. When they do arise, the trial judge must resolve them. This may require not only submissions but the inspection ofstatements and other documents and indeed, in some cases, viva voce evidence.

A voir dire will frequently be the appropriate procedurein which to deal with these matters. [40] The underlying trigger of the Crown’s obligation is the reasonable possibility of relevance, as explained in R. v. Dixon, (SCC), [1998] 1 S.C.R. 244: 21 Clearly the threshold requirement for disclosure is set quite low. As a result, a broad range of material, whether exculpatory orinculpatory, is subject to disclosure. See Stinchcombe, supra, at p. 343.

In particular, "all statements obtained from persons who haveprovided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses" (p.345). The Crown's duty to disclose is therefore triggered whenever there is a reasonable possibility of the information being useful to theaccused in making full answer and defence. See R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727, at p. 742. [41] In R. v.

Egger, (SCC), [1993] 2 S.C.R. 451 at 467 the court tied relevance to usefulness to the defence: One measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant andshould be disclosed -- Stinchcombe, supra, at p. 345.

This requires a determination by the reviewing judge that production of theinformation can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in makinga decision which may affect the conduct of the defence such as, for example, whether to call evidence. [42] I now turn to the specifics of this case. Applications for disclosure are, for the most part, made prior to the start of the trial orduring the body of the trial when issues are more or less inchoate or coalescing.

A judge reviewing a refusal to disclose and determiningrelevance, and therefore usefulness to the defence, can in my view approach the task in the context of both the state of the proceedings atthe time of the application and the purported purpose of the request for disclosure. This case is somewhat unique in that the evidencehad been concluded and the issues in the case had been brought into stark relief. The issue driving the further disclosure inquiry beforethe trial judge was the credibility of Sgt. Gherasim regarding the location of the check stop.

It is in this context that a determination ofrelevance must be made. [43] The record at issue concerns disgraceful conduct under s. 39(1) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10. This misconduct was disclosed to the Crown only after it made inquiries as a result of defence counsel making earlier inquiries. Themisconduct clearly falls into one of the Ferguson Five categories mentioned in McNeil and should have been referred to the Crown bythe police for review, without prompting, at an early stage so it could determine if it should be disclosed.

Given that McNeil wasreleased in 2009 there is no reason why the police should not have been alive to this issue. The trial judge was unfortunately constrainedto deal with the issue near the conclusion of the trial when it might have been dealt with early on. [44] There was admittedly some confusion in the trial judge’s mind about who had the onus of showing that further disclosure should bemade and what the test for disclosure to the accused would be.

He ultimately employed the McNeil criteria of whether the records havea “reasonably plausible likelihood of having an impact on the case against the accused” to determine if the Crown must disclose them. The trial judge’s review of the Crown’s decision should have proceeded on the basis described by Sopinka J. earlier, i.e. whether therewas a reasonable possibility that disclosure of the expanded record of misconduct may assist the accused to make full answer anddefence.

The onus was therefore on the Crown to establish that there is not such a possibility and to justify the withholding. [45] The question which stood to be answered was whether, with further disclosure, there was a reasonable possibility that it would beuseful to the defence in a broad sense, if the trial were to be reopened. [46] Defence counsel addressed the issue of how the disclosure might be useful. He raised the possibility of further cross-examinationof Sgt. Gherasim on the misconduct record. The right to cross-examination is “a fundamental feature of a fair trial” (R. v. Esau, 2009SKCA 31, 324 Sask.

R. 95 at para. 17) and an accused’s s. 7 rights. However, while the right to cross-examination is broad, counsel aregenerally bound by the rules of relevancy and materiality (R. v. Mitchell, 2008 ONCA 757, paras. 17-19).

[47] A witness other than an accused can generally be cross-examined regarding any unrelated disreputable conduct bearing on his orher credibility (see R. v. Miller (1998), (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.) at para. 21; R. v. Cullen (1989), (ON CA), 52 C.C.C. (3d) 459 (Ont. C.A.)). However, these matters should not be too remote in time, or of such acharacter as to constitute no serious impairment of credibility. The right to cross-examine includes the circumstances underlying thecharge or misconduct (Miller, para. 22), but is still subject to the trial judge’s general discretion (Miller, para. 24).

This was the case, forexample, in R. v. Majore (1993), (SK CA), 113 Sask. R. 26 (C.A.) where the court held that the defence could notcross-examine a Crown witness on the factual details of a prior conviction because the witness had admitted the conviction and thespecific details were irrelevant. The court also has discretion to curtail cross-examination on matters relating solely to credibility whererelevance is tenuous (R. v. Meddoui, (SCC), [1991] 3 S.C.R. 320). [48] Mr. Boyne argued before the trial judge and in the

summary conviction appeal court that there was the potential that Sgt. Gherasimlied under oath or that the adjudicator in his conduct hearing did not prefer his evidence and that this information is disclosable and if itwas available it might damage the credibility of Sgt. Gherasim. However, the authorities do not support this proposition. [49] In R. v. Ghorvei (1999), (ON CA), 138 C.C.C. (3d) 340 (Ont. C.A.), the court considered whether a witness canbe cross-examined on a prior judicial finding that he has lied under oath.

In that case, defence counsel sought to introduce anotherjudicial decision in which the trial judge called the officer in question a “compulsive liar” and stated that his testimony was “false”. Onthe issue of whether cross-examination on this evidence would be admissible, Charron J.A. stated: [31] In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in aprior case. That fact, in and of itself, does not constitute discreditable conduct.

I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witnessin the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of thatopinion and the effect, if any, on the witness's credibility without also being provided with the factual foundation for the opinion.

Thiscase, in fact, provides a good example of the difficulties that would arise if such cross-examination were permitted because, in my view,once the finding is examined in the context of the whole record in Pappageorge, it becomes apparent that it is essentially unfounded andhence can provide no assistance in determining Constable Nielsen's credibility. [50] R. v.

Karaibrahimovic, 2002 ABCA 102, [2002] 7 W.W.R. 452, a more recent decision out of the Alberta Court of Appeal, hasreiterated the same sentiment: [7] Generally speaking, evidence is admissible if it is relevant to a fact in issue, and not subject to a rule of exclusion: J. Sopinka,S.N. Lederman, A.W. Bryant, The Law of Evidence in Canada, 2nd Ed. (Markham: Butterworths, 1999) at 23. Cross-examination of awitness about whether the witness's testimony in previous proceedings was rejected or disbelieved is irrelevant and ought not to bepermitted: See R. v. Ghorvei (1999), (ON CA), 138 C.C.C. (3d) 340 (Ont.

C.A.); R. v. Barnes (1999) (ON CA), 138 C.C.C. (3d) 500 (Ont. C.A.); and R. v. Schmidt (2001), 2001 BCCA 3 , 151 C.C.C. (3d) 74 (B.C. C.A.). [8] Sound policy reasons exist for not using a present trial as an opportunity to assess, or reassess, a witness's evidence in another,unrelated trial. The most obvious problem is that what happened in the first trial, including the reasoning of the trier of fact in that trial,would not be known to the trier of fact in the second.

Accordingly, in both Ghorvei and Barnes, the Court found that cross-examining apolice witness on whether or not his or her evidence had been accepted in prior proceedings was irrelevant. [51] These decisions establish that whether or not the testimony of a witness in a prior proceeding was accepted, is an impermissibleavenue to pursue in cross-examination. Therefore, even if Sgt. Gherasim’s evidence was expressly rejected at a disciplinary hearing, thatevidence would be inadmissible. It was, therefore, not open to defence counsel for Mr. Boyne to cross-examine Sgt.

Gherasim, in anyevent, as to whether his evidence was believed or disbelieved or whether the tribunal made findings of fact against him if the verdictwere set aside and the case reopened. In this respect, the

summary conviction appeal court judge erred when he found this aspect ofpossible further disclosure to be a relevant factor impacting Sgt. Gherasim’s credibility and that Mr. Boyne had been denied theopportunity to pursue this. [52] At most, further and better disclosure of the details of the discreditable conduct may have resulted in Sgt. Gherasim being cross-examined on the fact of the discipline and circumstances of the misconduct offence. Indeed, counsel for Mr. Boyne mentioned that twoof the reasons he might want to cross-examine Sgt.

Gherasim was to elicit his personal experience of drinking and driving and to obtainhis version of the events leading to his discreditable conduct. It is difficult to see how that evidence would help the defence on the issueof the location of the check stop. Knowing the details of Sgt. Gherasim’s misconduct or being privy to his personal experience ofdrinking and driving would be neither material nor relevant to that issue. It is difficult to see how this line of cross-examination wouldassist the accused in making full answer and defence. Additionally, the mere fact that alcohol was involved in Sgt.

Gherasim’smisconduct would not logically affect his credibility as to the location of the check stop. It is difficult to see how that fact couldreasonably be used by Mr. Boyne to provide a defence. [53] Even if the trial judge had ordered further disclosure and thereafter vacated the verdict and reopened the trial, any further cross-examination of Sgt. Gherasim touching on his credibility would have to be assessed by the trial judge in the context of all the evidence

respecting the location of the check stop. Assuming that his credibility was destroyed in cross-examination, it is clear that Sgt. Gherasim’s evidence was not the sine qua non of the location of the check stop. The trial judge’s observation at p. 706 that he did not solely rely on Sgt. Gherasim’s evidence as to the location of the check stop is germane: Obviously based -- and I make reference now to the McNeil issue, Sergeant Gherasim’s credibility was of significance to me, and I make reference to that in the written decision as well.

Nonetheless, I did not make my decision based solely on his evidence or solely on his credibility. I think that his evidence is bolstered considerably by that of other officers and civilian witnesses. I take this to mean that even without relying on Sgt. Gherasim’s evidence, his decision on the location of the check stop would not change. [ 54 ] In the circumstances of this case, given the focused issue which the defence specifically sought to address by further disclosure, i.e. the possibility of diminishing the credibility of Sgt.

Gherasim respecting the location of the check stop, the trial judge made no error in his review of the Crown’s decision to decline further disclosure. There was no reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown or advancing a defence respecting the issue in play at that stage of the proceedings in the context of the evidence. Accordingly, it cannot be said that Mr. Boyne’s s. 7 Charter rights were infringed by the trial judge failing to order further disclosure. V. Conclusion [ 55 ] The appeal is allowed, the decision of the

summary conviction appeal court is set aside and the convictions of the trial court are restored. DATED at the City of Regina, in the Province of Saskatchewan, this 17 th day of December, 2012. “Ottenbreit J.A.” Ottenbreit J.A. I concur “Richards J.A.” Richards J.A. I concur “Caldwell J.A.” Caldwell J.A.