Docket: CACR2083 Trevor Wayne Anderson Appellant - v. -, 2013 SKCA 92

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 92 Date: 2013-09-04 Between: Docket: CACR2083 Trevor Wayne Anderson Appellant - and - Her Majesty the Queen Respondent Coram: Richards C.J.S., Lane and Ottenbreit JJ.A. Counsel: Glen Luther, Q.C., and Mark Brayford, Q.C., for the appellant Wade McBride and Crystal Warde for the respondent Appeal: From: 2011 SKQB 427 , 2011 SKQB 456 Heard: December 7, 2012 Disposition: Appeal dismissed

Written Reasons: September 4, 2013 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Lane OTTENBREIT J.A. I. Introduction [ 1 ] Trevor Wayne Anderson appeals his conviction in the Court of Queen’s Bench on the following charges: 1.

Being one of the persons constituting a criminal organization did knowingly instruct, directly or indirectly, one or more persons of that organization to traffic in cocaine and cannabis marihuana contrary to s. 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ CDSA ”), for the benefit of, or at the direction of, or in association with the criminal organization contrary to s. 467.13 of the Criminal Code ; 2. Trafficking in cocaine contrary to s. 5(1) of the CDSA ; 3.

Possessing cannabis marihuana in an amount exceeding three kilograms for the purpose of trafficking contrary to s. 5(2) of the CDSA ; and 4. Possessing $73,940.00 in Canadian currency and a 2004 GMC Yukon Denali having a value exceeding $5,000.00, knowing that all or part of them were obtained directly or indirectly from the commission in Canada of the indictable offence of trafficking in a controlled substance contrary to s. 5(1) of the CDSA thereby committing an offence contrary to s. 354(1) (

a) and s. 355 (

a) of the Criminal Code . [ 2 ] Mr. Anderson was sentenced to six years imprisonment on the trafficking charge, one year imprisonment consecutive on the directing a criminal organization to traffic charge and two years imprisonment concurrent on the remaining two charges along with a 10 year firearms prohibition and a DNA order. [ 3 ] The trial proceeded based on an agreed statement of allegations and admissions in which Mr. Anderson admitted the necessary facts and essential elements of the charges which resulted in his conviction.

This turn of events came shortly after the dismissal of three pre-trial motions concerning disclosure and Charter issues made by Mr. Anderson. [ 4 ] The dates, relevant issues and citations, where applicable, of the pre-trial decisions are as follows: 1. November 10, 2011 - Dead Informant and Document 3711 Issues found at 2011 SKQB 427 ; 2. November 16, 2011 - General Disclosure Issues and Late and Lost Disclosure Issues (unreported); and 3. December 7, 2011 -

Section 11(

b) Charter - Unreasonable Delay Issue found at 2011 SKQB 456 . [ 5 ] Mr. Anderson seeks to set aside his conviction and have acquittals entered on the basis that the trial judge in these three decisions made findings that were unreasonable and not supported by the evidence. The main issues in this appeal concern disclosure, delay and alleged errors the trial judge made in the pre-trial decisions. For the reasons hereinafter set forth, Mr. Anderson’s appeal is dismissed. II. Facts and Background [ 6 ] Mr.

Anderson came to the attention of the police as a result of two extensive police investigations in Prince Albert commencing February and September 2006. The trial judge, in the course of delivering his decision of November 16, 2011, gave an excellent

summary of the breadth of the investigations: The police initiated Operation Avalanche. The operation, a joint effort between the Prince Albert Police Service and the Saskatchewan RCMP, involved 163 officers, albeit many of those officers had a very minor involvement. There were two wiretap authorizations granted, which yielded a number of conversations which the Crown contends are incriminating. Additionally, there were approximately 44 search warrants or search warrant-type orders granted. The number of documents generated is estimated to be in the neighbourhood of 45,000 pages.

Fifteen persons were charged arising out of Operation Avalanche. It was a large operation that initially focused on Mr. Fiddler, but evolved into an investigation involving several persons, including the accused. [ 7 ] Mr. Anderson was initially arrested but not charged in August 2007 because certain aspects of the investigation were continuing and there were voluminous materials to assess and decisions to be made with the assistance of the Crown on who to charge. Mr. Anderson was subsequently charged and re-arrested on May 21, 2008, with 24 drug and drug-related offences contained in eight informations.

Thereafter the process of Crown disclosure began. [ 8 ] A detailed chronology of events from the viewpoint of both the Crown and the defence is attached to the December 7, 2011, decision. Depending on whose version is used, there are 67-95 entries in this history in the period August 2007 to November 2011

detailing numerous court appearances and adjournments. These entries include the dates that disclosure was made by the Crown andsome detail regarding the type of disclosure given. The trial judge described the chronologies as complicated and lengthy. For thepurposes of this decision, not all of this needs to be set forth in detail. However, given the issues raised by Mr. Anderson in this appeal itis necessary to recount some events and interactions between the Crown and defence. [9] Disclosure began on May 21, 2008, when the Crown provided Mr.

Anderson with a hard drive containing what it describes as thefirst wave of disclosure, 5,642 pages of RCMP Special I material. A second hard drive containing further disclosure, as well as thedisclosure first given to the defence, was provided to Mr. Anderson on August 5, 2008. Included with this were the unsealed wiretapmaterials and search warrant materials, all of which had been vetted. The Crown also provided a table of contents, software installationinstructions, an installation guide and details as to how the voluminous disclosure could be accessed.

It consisted of approximately40,000 pages of material together with 205 audio files, 50 video files and a large series of photographs. [10] On August 29, 2008, at Mr. Anderson’s next court appearance, the Crown suggested that disclosure was complete but the defencedisputed that and requested a Laporte inventory (R. v. Laporte (1993), (SK CA), 113 Sask.

R. 34 (C.A.)) itemizing theinformation in its possession and identifying the items which the Crown intended to disclose and which it refused to disclose. [11] On November 5, 2008, the Crown provided further disclosure by way of a forensic accounting report and a couple of hundredpages of other disclosure. This was followed shortly, on November 14, 2008, by an 8-page letter from counsel for Mr. Anderson to theCrown requesting full disclosure and again, a Laporte inventory.

This letter itemized over 100 categories of disclosure sought withalmost all of those categories containing wording which resulted in the request for disclosure in each category having several or manypermutations. [12] The matter was adjourned from time to time to allow the Crown to consider the November 14, 2008, letter and respond. OnJanuary 26, 2009, the Crown disclosed by way of a DVD some further documents provided by the police as well as the existence of 20intelligence reports over which the Crown claimed privilege. [13] On March 30, 2009, Mr.

Anderson elected to be tried by Provincial Court Judge on a new information laid by the Crown whichsimplified the charges. He also filed a motion in that court asking for full disclosure in a useable format and again, a Laporte inventory. The disclosure motion was scheduled for May 14, 2009, before the trial judge but before that could happen Mr. Anderson re-elected tobe tried by Queen’s Bench. The preliminary inquiry was set for November 16-25, 2009. Mr.

Anderson then filed a disclosure motion inthe Court of Queen’s Bench set for June 26, 2009, which was similar to the motion filed earlier in the Provincial Court. [14] On June 5, 2009, the Crown disclosed three intelligence reports as well as a list of documents that it believed were in dispute due toprivilege, vetting and other reasons, and took the position that this was its Laporte inventory. [15] The disclosure motion concerning whether disclosure was in a useable format, whether full disclosure had been provided andwhether a Laporte inventory should be ordered was heard on October 23, 2009.

In November 2009, the Chambers judge ruled onportions of the motion ordering certain hard copy notes of specified police officers be produced by the Crown and determining that thenature and format of the disclosure provided to that date by the Crown was appropriate, had been provided in a reasonably accessiblemanner and did not detract from Mr. Anderson’s right to make full answer and defence. The Chambers judge adjourned the balance ofthe motion, including the Laporte inventory issue, to February 2010 to give the Crown time to review certain documents and to furtherconsider outstanding matters.

Prior to the adjourned date, the Crown provided to the defence what it considered an updated Laporteinventory. [16] When the disclosure motion was argued, both the Crown and the defence had conceded before the Chambers judge that theoutstanding disclosure issues would not impact the prelim proceeding. However, while awaiting the decision on the motion before theChambers judge, and with the November 2009 prelim date swiftly approaching, Mr.

Anderson made an application before thepreliminary inquiry judge to adjourn the prelim, arguing that he was not prepared to start the prelim in the absence of a resolution of theoutstanding disclosure issues in the Queen’s Bench. The preliminary inquiry judge reluctantly adjourned saying this: 14 I should also say that, in normal circumstances, the request for this adjournment would not have been granted. There were nocircumstances brought to the Court’s attention prior to this adjournment application that the matter would not be proceeding. There wasno shortage of witnesses.

Counsel, other than the outstanding disclosure issue, were available to conduct the preliminary hearing. Inshort, all of the usual reasons for adjournment requests were not present in this case. … I would have declined, for the foregoingreasons. 15 The only reason that I considered granting the adjournment was an indication from defence that the preliminary hearing, absentthe disclosure they were pursuing in Court of Queen’s Bench, would last upwards of six full weeks.

Defence Counsel was not preparedto start a Preliminary Hearing with a potential for 6 weeks of evidence being heard, absent resolution of the disclosure issue in the Courtof Queen’s Bench. The prelim was then reset to commence on April 28, 2010. [17] Between February 22 and April 28, 2010, the defence made one further unsuccessful attempt in the Provincial Court to adjourn theprelim set for April 28, as well as an unsuccessful application the morning of the prelim before the Chambers judge to stay the prelimpending the resolution of the disclosure matters.

The disputed disclosure issues which the Chambers judge had adjourned remainedoutstanding but because of the refusal by the Chambers judge to stay the prelim, these disputed matters were adjourned to a date inconsultation with counsel so as not to conflict with the prelim. The outstanding matters were never rescheduled. [18] The preliminary inquiry consisted of a total of six days of evidence on various days between April 28 and June 11, 2010, at the endof which Mr. Anderson was committed to stand trial on most of the counts in the informations.

[ 19 ] The matter moved on to pre-trial in the Queen’s Bench. At the pre-trial conference, the trial judge set any disclosure motions for April 2011, further pre-trial motions for September 2011 and the trial for November 2011. [ 20 ] In December 2010 and January 2011 the Crown provided six binders of material pursuant to the order of the Chambers judge. [ 21 ] Mr. Anderson filed his motion for disclosure and also challenged the two wiretap authorizations and 42 search warrants which were part of the investigation. In the motion, Mr. Anderson alleged the Crown: (

i) failed to provide full disclosure; (ii) failed to comply with the disclosure ordered by the Chambers judge; (iii) failed to provide a Laporte inventory; (iv) over-vetted disclosure; and, (

v) must disclose information on a deceased informant because any informer privilege ceased to be operative on his death. [ 22 ] Mr. Anderson sought a declaration that his ss. 7 and 11(

d) Charter rights had been breached by non-disclosure and/or late disclosure and a stay under s. 24 of the Charter based on those breaches; that his rights under s. 11(

b) had been breached as a result of unreasonable delay; and alternatively, an order directing the Crown to provide full and fair disclosure including a Laporte inventory. [ 23 ] On April 27, 2011, the Crown responded with a letter listing matters that remained outstanding concerning the Chambers judge’s order, confirming that there was some material that it had been unable to find and advising that the Crown had made another request for material to the police. The Crown also delivered to the defence a compact disc containing a 32-page

schedule listing 520 contentious documents, some vetted and some not. Hyperlinks were provided to the vetted documents as well as reasons for the vetting. [ 24 ] The disclosure motion commenced April 28, 2011, but after a number of adjournments eventually proceeded in September. After four days of hearings, the trial judge determined that the Crown had complied with the disclosure order of the Chambers judge and dismissed that part of the defence motion. The hearing was adjourned to allow the Crown and the defence to further refine the issues, review documents and expedite matters.

By way of a 9-page letter dated September 29, 2011, the defence listed 22 issues covering many documents which it believed it had not received or which were incomplete or missing from the disclosure which they had received. This letter, although referring to 22 contested issues and documents, when examined closely really referred to potentially many more documents. [ 25 ] The Crown responded to this letter with its own 21-page position

summary letter dated October 17, 2011, as well as five binders of material, part of which included a 432-page compilation of notes from disclosure provided earlier. The position

summary gave reasons justifying why the Crown declined to produce some documents and also admitted that some documents were no longer in existence or could not be located. More importantly, the Crown provided to the defence further disclosure on the majority of the issues raised in the letter. [ 26 ] Upon reconvening, the dispute reflected by each side’s position was the subject matter of at least two days of court time used. Further proceedings, discussions and negotiation took place between the Crown and the defence which resolved many issues.

The outstanding issues were addressed by the court in the pre-trial decisions listed earlier. [ 27 ] Because of the focus of Mr. Anderson’s grounds of appeal, it is also necessary to provide some facts and background regarding discrete issues of disclosure dealt with by the trial judge in his decisions. Lost Notebooks [ 28 ] Sgt. Francis was the lead investigator of Project Avalanche. He had been transferred to Vancouver from Prince Albert. After checking his belongings in Vancouver, he could only find two of seven of his notebooks. He initially thought he had left them in the Prince Albert office.

Another officer looked for the notebooks at the Prince Albert office but could not find them. While photocopies of portions of his notebooks were to be found in electronic disclosure, the number of pages that were missing was undeterminable. Also lost were two intelligence reports that Sgt. Francis had authored as well as all of the roadbooks containing photographs and biographical details of the individuals under surveillance. Sgt. Francis testified that his written record of the investigation consisted of notes he made in notebooks, task reports, daily surveillance he signed and progress reports he co-authored.

He testified that if he recorded his actions in a task report, he did not necessarily record it in his notebook. [ 29 ] The Crown prepared and provided to the defence on October 17, 2011, a 432-page compilation of Sgt. Francis’s notes from the earlier described hard drive and task actions. Although the two intelligence reports referred to in the informations to obtain an authorization were missing, with respect to one of them there was a progress report that contained the same information. Lost Video Surveillance [ 30 ] Sgt.

Francis testified that for several months around the spring of 2007 there was an RCMP pole camera operating on Mr. Anderson’s Spruce Meadows acreage with a video feed to police offices. He remembered watching the video feed. Such a video was never produced by the Crown. An email showed that Special I was instructed to disconnect the camera from Spruce Meadows. However, another document showed four locations where there were cameras which did not include Mr. Anderson’s acreage. There was no court order authorizing the use of the pole camera or the four other cameras which were operational at various times.

After the conclusion of evidence, in final argument Crown counsel disagreed with Sgt. Francis and said that after review he believed that there never was such a video although he indicated that the camera was planned and a line was initially set up. In argument he also summarized the evidence of two possible witnesses who would testify to that effect if Mr. Anderson was to question whether his privacy was invaded. The trial judge accepted the Crown’s submission that the video did not exist in preference to the sworn testimony of Sgt. Francis and the email. Document 3711 [ 31 ] This document was used by Sgt.

Hofland in his video-taped interrogation of Mr. Anderson. It contained personal notes respecting certain phrases Sgt. Hofland intended to use with Mr. Anderson and a road map of how he intended to approach the interview. The purpose of the notes was to methodically conduct the interview in such a way as to encourage a confession. The Crown originally refused to disclose the document as not relevant. Later justifications for failure to disclose included litigation privilege and investigative

technique privilege. Eventually the Crown unvetted eight of thirteen pages of this document. Lost Emails and Intelligence Reports [ 32 ] Emails were included in the Crown’s initial disclosure and after further inquiries, two batches of further emails were disclosed in October 2011.

However, a large part of the emails between police officers on this investigation were no longer in existence because the officers used a “Groupwise” program where there was a planned destruction of old emails after six months. [ 33 ] In its disclosure letter of January 26, 2009, the Crown listed 20 intelligence reports it declined to disclose. The Crown later disclosed 28 reports and stated five were lost. Late Disclosed Documents [ 34 ] The Crown disclosed some documents well into the proceedings.

Examples of these are the Project Feno report immediately before trial and DOCC communications regarding traffic stops. Informant Privilege [ 35 ] Mr. Anderson suspected that an informant who provided information to the police had died. The Crown acknowledged Mr. Fiddler had died as of September 2011 but did not acknowledge who the informant was. III. The Pre-Trial Decisions The November 10, 2011, Decision [ 36 ] This decision concerned the informant privilege and Document 3711.

The defence argued that if the informant upon whom the police had relied to gather information for search warrants and wiretap authorizations had died, those parts of the warrants, authorizations and related disclosure that pertained to that dead informant should be un-vetted because the informant privilege ceased with the informant’s death. The Court ruled on the issue without any evidentiary confirmation or negation of Mr.

Anderson’s suspicions regarding the informant. [ 37 ] The trial judge made the following determination: 23 However, the defence position ignores the core principles set forth by the Supreme Court of Canada in Basi . Those principles make it clear that the informer privilege belongs jointly to the Crown and the informant and that neither can waive it without the consent of the other. Two of the principles behind the informer privilege’s near absolute status are that it ought ensure the protection of the informant and encourage would-be informants to come forward.

If that privilege is automatically lost upon the informant’s death, it may have the effect of discouraging would-be informants from coming forward. It is not much of a stretch to think that the informant might be concerned about his own reputation after his death and about retribution to his family and friends. … 25 I have little difficulty in concluding that the principles behind the informer privilege dictate that it does not expire upon the death of an informant. Whether an informant is, or is not, dead is irrelevant.

Accordingly, the accused’s application to have the vetted Crown disclosure unvetted should it relate to a deceased informant is dismissed. [ 38 ] The defence argued that Document 3711 should be fully disclosed and not be subject to investigative privilege. The Court made the following determination: 32 Richards suggests a two-part test. Firstly, is the information sought relevant? Secondly, if relevant, it is necessary to balance the public interest with the legitimate interests of the accused. Arguably, the interviewing officer’s notes are relevant to the issue of admissibility of the statement of the accused.

Accordingly, the Court should then balance the interests involved in the disclosure of that information. … 36 Here, I have little difficulty in concluding that the balancing of the interests results in the information not being disclosed to the defence. I am mindful that the Crown has provided a vetted portion of the Document 3711 to the defence so that the defence has a very good idea as to the general nature of the document contents. I am further highly influenced by the fact that the interview itself is videotaped such that there can be no dispute as to precisely what occurred.

In my view, having reviewed the unvetted copy of Document 3711, it would be of little or no use to the defence. On the other hand, releasing details about the way in which the police legitimately approach the task of encouraging suspects to confess could undermine their efforts in future situations. When weighing disclosing the interviewing officer’s techniques in attempting to obtain a confession against releasing that information to the defence when there is a full record of what actually occurred, I find that disclosure is not warranted.

The Court declined to order that an unvetted version of Document 3711 be disclosed. The November 16, 2011, Decision

[39] This decision concerned the 22 alleged points of non-disclosure identified in the exchange of letters between defence counsel andCrown counsel dated September 29, 2011, and October 7, 2011, respectively. Mr.

Anderson argued that as a result of late disclosure,non-disclosure generally and lost documents his rights were irreparably harmed and that a stay was appropriate. [40] The trial judge approached his task by focusing on the Crown’s general duty to disclose, late disclosure and lost disclosure as wellas several discrete issues of disclosure. [41] He made the following decision and observation about the defence approach at p. T1002: The approach taken by the defence was general and unfocused, and leaves the impression that nothing done by the Crown could eversatisfy the disclosure obligation owed to the accused.

I find that it is not necessary for the Court to make an item by item analysis of thevarious defence disclosure claims because they are, for the most part, completely without merit. [42] The trial judge determined the following respecting the Crown’s general obligation to disclose at p. T1006: I find that the Crown has, albeit imperfectly, attempted to live up to, and did live up to, its important and fundamental obligation toprovide full disclosure to the defence.

I also find that the vast majority of the disclosure was provided to the defence on August 5, 2008.The accused had the intercepted communications, the wiretap authorizations, the search warrants, and the affidavits upon which thewarrants and the authorizations were based. The Crown attempted to refine the vetting, and respond to the specific requests of thedefence. The Crown has, however, been unable to satisfy the defence’s demands because I find that the demands were such that theywere incapable of being met.

I find that the Crown has, subject to the comments on late disclosure and lost information, satisfied its obligation, and the Charter rightsof the accused have not been breached in relation to the Crown’s disclosure obligation. [43] Respecting a Laporte inventory, the trial judge, at p.

T1003 and T1004, stated: By further example, the defence argues that a Laporte inventory, named after the procedure suggested by our Court of Appeal in R. v.Laporte (SK CA), [1993], 113 S.R. 34, was never provided, and that the material tendered by the Crown as a Laporteinventory was insufficient because it was incomplete. … This is what the Crown has done. After receiving the defence’s application, the Crown prepared Exhibit P-3, which is a list of 520documents that the Crown believed were contentious.

Hyperlinks to the vetted documents were provided, and the unvetted copies wereprovided to the Court so that it was possible to look under the vetting to determine whether the vetting was legitimate. Eventually, thoseissues were all resolved with nothing of significance arising from it. [44] Regarding late disclosure, the trial judge said at p. T1007: I find that the Crown met its obligation to provide ongoing disclosure to the defence. The Crown ought not be criticized for latedisclosure but ought to be commended for being diligent and open-minded in their approach. … There are two ways that one can look at this.

One way is to complain, as does the defence, that the original material was over-vetted andthe provision of some more unvetted material constitutes unacceptably late disclosure. The other way, which is the way I see it, is thatthe Crown responsibly took a second look at the Special I documentation and made a number of revisions to the vetting in order toensure that the most information possible could be disclosed to the defence. The amount of revised unvetting done by Special I is relatively small.

After carefully comparing the extra unvetted disclosure, thereappears to be nothing of any real significance provided. It does not appear, for example, that the Crown was attempting to hide orconceal relevant information, and then, on the eve of getting exposed, decided to come clean. Rather, it was a responsible exercise ofdiscretion without any improper motive. [45] Respecting the surveillance video which was allegedly lost, the trial judge, at p. T1004, stated: Then the defence focused on the contentious documents that they say are missing. I will give one example.

The Crown provideddisclosure to the defence that there were four locations that were watched and recorded by video cameras. The recordings have beenmade available to the defence. At the end of the operation, one document mentions the removal of the equipment. The document speaksof five locations, not four, the fifth being the location of the accused’s residence. Also, Sergeant Francis testified that he believed that a surveillance camera was set up at the accused’s residence.

Based upon this, thedefence asserts that the missing video of the accused’s residence should have been recorded on the Laporte inventory as a disputeddocument. The problem is that the Crown says there is no such recording because there was never a surveillance camera installed towatch the accused’s residence. Mr. Neely has represented to the Court that there was no such recording. There was a line installed towhere a camera could be set up next to the accused’s residence, however, no camera was ever installed. As far as Sergeant Francis’testimony on this point, the Crown suggests that he is mistaken. Mr.

Neely, as an officer of the court and an agent of the Crown, hasclearly represented that such a recording does not exist, and I accept that.

It is not a Charter breach to fail to list or disclose something that does not exist. … [ 46 ] With respect to the lost notebooks, the trial judge determined the following at p. T1011 and T1012: I find that the notebooks were misplaced due to human error. Leaving the notebooks in Prince Albert with the investigators was reasonable, as would be placing them in a safe. There is no hint of any suggestion that the notes were deliberately destroyed for any nefarious purpose. The notes are relevant, although not tremendously so.

They form an extremely small, virtually minute portion of the total picture. … I find that the Crown has established that the notebooks were not lost through unacceptable negligence. Appropriate care was taken. Despite this care, the notebooks were lost. Human experience tells me that people sometimes lose things even when care, and sometimes great care, is taken.

Where the Crown has established, as they have here, that the loss was not due to unacceptable negligence, there can still be a s. 7 breach if the loss can be shown to be so prejudicial that the accused is denied the opportunity to make full answer and defence such that it would impair a fair trial. [ 47 ] The trial judge concluded at p.

T1012: Accordingly, for the reasons I have just stated, all aspects of the defence’s disclosure application is dismissed, with the exception of the application relating to the lost notes which may be renewed after the evidence at trial is complete, should the defence wish to argue that the loss of the notes is so prejudicial to the right of the accused to make full answer and defence, that his trial has been impaired. The December 7, 2011, Decision [ 48 ] This decision dealt with unreasonable delay allegations. The trial judge divided the 42 months it took Mr.

Anderson’s matter to get to trial into nine discrete periods beginning with August 27, 2007, when Mr. Anderson was first arrested and ending with December 7, 2011, the date of the delay decision. For each such period, the trial judge reviewed the evidence of the dealings of the Crown, the defence and the court record. [ 49 ] The trial judge made the following findings with respect to unreasonable delay: 2 For the reasons that follow, I have concluded that although the delay in bringing this matter to trial was considerable, it was not unreasonable.

The time between the date when the original information was sworn and today is 42 months, 17 days. However, the majority of the delay in getting the matter to trial was directly attributable to the inherent time requirements of a complex case and the need to respond to and address the considerable issues raised by the accused pertaining to disclosure.

In the end result, the numerous disclosure complaints made by the defence were found to be, for the most part, without merit. 3 It is inconsistent with the basic principles of justice, and an affront to common sense, to accept the defence’s proposition that this case took too long to get to trial when the primary reason for the delay was the complex nature of the case and the defence’s choice to make extensive disclosure requests and resist moving the matter along until those requests were dealt with.

This is especially so where, as here, the pace of the proceedings was slowed considerably by some of the actions of the defence.

At best, the defence made a tactical decision to aggressively pursue every possible relevant piece of information in the Crown’s possession, which resulted in the lengthening of the inherent time requirements of the case; at worst, the approach was a thinly veiled attempt to manipulate the process in order to manufacture a delay and avoid a trial on the merits. 4 In either case, the result is the same: there has been no breach of the accused’s right to be tried within a reasonable period of time as guaranteed by s. 11(

b) of the Charter . [ 50 ] The trial judge concluded as follows: 97 When considering all of the factors that I am required to consider, I have no difficulty in concluding that the 42 months that it has taken to get this matter to trial has been considerable, but not unreasonable. The chronology above illustrates that this is not a simple case that fits into the standard time frames. It took some time, and justifiably so. … 113 In arriving at the conclusion that the delay is not unreasonable I have balanced the length of the delay having regard to all of the factors and the circumstances that are before me including the interests which s. 11(

b) is designed to protect, the prejudice to the accused occasioned by the delay, society’s interests in the matter and the reasons for the delay - both on a “big picture” and a detailed examination basis. The inescapable conclusion is that the delay is not unreasonable.

114 This judgment ought not be considered to be an overall endorsement of each and every step taken by the Crown in thisprosecution. The Crown candidly admits that some aspects of the case could have been handled better and more quickly. I agree.However, perfection is the goal, not the standard. I find that, for the most part, the Crown was fair, well motivated and made bona fidedecisions respecting issues involving disclosure and the overall prosecution. 115 I find that the accused’s right to be tried within a reasonable period of time, as guaranteed by the Charter, has not been breached.Accordingly, the defence’s application for a stay of proceedings based upon s. 11(

b) is dismissed. IV. Standard of review [51] Mr. Anderson argues that the trial judge erred by failing to grant a stay under s. 24(1) based on Charter breaches arising out ofunreasonable delay and/or a breach of the Crown’s obligation to disclose. The standard of review of an order under s. 24(1) of theCharter has recently been set forth in R. v.

Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509: 17 It is well established that a trial judge’s order under s. 24(1) of the Charter should be disturbed on appeal “only if the trial judgemisdirects himself or if his decision is so clearly wrong as to amount to an injustice”: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, atpara. 117; Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC), [1997] 3 S.C.R. 391, at para. 87. 18 That this is the appropriate standard of review was unanimously reaffirmed by the Court, citing Regan, in R. v.

Bjelland, 2009SCC 38, [2009] 2 S.C.R. 651 (Rothstein J., at para. 15; Fish J., at para. 51). Speaking for myself and Justices Binnie and Abella,dissenting in the result, I elaborated as follows on the agreed standard of review: On an application under s. 24(1) of the Canadian Charter of Rights and Freedoms, once an infringement has been established, the trialjudge must grant “such remedy as [is] appropriate and just in the circumstances”. The remedy granted must vindicate the rights of theclaimant, be fair to the party against whom it is ordered, and consider all other relevant circumstances.

Appellate courts may interferewith a trial judge’s exercise of discretion only if the trial judge has erred in law or rendered an unjust decision. This is particularly true ofremedies granted by trial judges under s. 24(1) of the Charter, which by its very terms confers on trial judges the widest possiblediscretion. Finally, appellate courts must take particular care not to substitute their own exercise of discretion for that of the trial judgemerely because they would have granted a more generous or more limited remedy. [Emphasis in original; para. 42.] [52] Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, makes clear that the standard of review on an appeal involving aquestion of law is correctness. The standard of review for findings of fact is palpable and overriding error, and the standard of review forfindings of mixed fact and law is on the spectrum between those depending on the nature of the issue. The question of whether theCrown has met its disclosure obligations is subject to a correctness standard of review overall.

The trial judge is called on to determinewhether the performance of the Crown in the particular case has met the legal standard as set forth by the governing disclosure cases (R.v. Black, 2011 ABCA 349, [2012] 3 W.W.R. 637, para. 14). [53] The standard of review with respect to decisions involving lost evidence and s. 11(

b) applications will be dealt with as part of theanalysis of those issues. V. Issues [54] Mr. Anderson, in his notice of appeal, states the following grounds of appeal: 1. That the decision is contrary to the evidence, the weight of the evidence, and the law; 2. That the Rulings with respect to the Appellant’s rights as guaranteed by Sections 7, 11(b), and 11(

d) of the Canadian Charterof Rights and Freedoms were wrong, particularly in relation to late disclosure, lost disclosure, missing disclosure, vetted disclosure, theformat of the disclosure, deceased informant privilege, investigative technique privilege, work product privilege, and unreasonabledelay; and 3. That the

schedule and procedures adopted in relation to disclosure caused a miscarriage of justice. [55] In support of these grounds, Mr. Anderson raised the following issues in his factum and presented oral argument in respect of each: A. Failure to Rule – Deliberately Withheld Disclosure – Lost Evidence B. Failure to Order Laporte Inventory C. Lost evidence - video surveillance - Appellant’s Spruce Meadow Acreage - Relying on Submissions which are Contrary tothe Evidence D. Lead Investigator Lost Five of Seven Notebooks E. Criticism of Defence for Diligently Seeking Disclosure

F. File Size Could Not Justify Late Disclosure G. Failure to Ascribe Responsibility for Over-Vetting H. Delay in Violation of s. 11(

b) of the Charter I. Improper Application of Privilege over “Interrogation Script” J. Informer Privilege Should Not Survive Death of Informer VI. Analysis [56] The governing principles applicable to the discrete questions raised by Mr. Anderson will be dealt with as part of the analysis, butbecause much of Mr. Anderson’s appeal deals with disclosure, a review of the general principles respecting disclosure is helpful. The Legal Framework of Disclosure [57] The Crown’s obligation to provide disclosure as set forth in R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326, wasrecently reiterated and summarized by Charron J., at para. 18 of R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66: 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. [58] The obligation to disclose is not absolute. For example, in R. v.

Egger, (SCC), [1993] 2 S.C.R. 451, Sopinka J.stated at p. 466: … The Crown’s disclosure obligation is subject to a discretion, the burden of justifying the exercise of which lies on the Crown,to withhold information which is clearly irrelevant or the nondisclosure of which is required by the rules of privilege, or to delay thedisclosure of information out of the necessity to protect witnesses or complete an investigation: Stinchcombe, supra, at pp. 335-36, 339-40.

As was said in Stinchcombe, supra, at p. 340, “[i]nasmuch as disclosure of all relevant information is the general rule, the Crownmust bring itself within an exception to that rule”. [59] The meaning of “relevance” has been recently addressed by the Court in R. v. West, 2010 NSCA 16, 288 N.S.R. (2d) 293: 160 What is relevant in any given case is determined by a wide variety of factors, principally by the facts in issue. The facts in issueare set by the charges before the court and the defences being raised by the accused (see R. v. Arp, (SCC), [1998] 3S.C.R. 339, [1998] S.C.J. No. 82 at para. 38). In R. v.

Watson, (ON CA), [1996] O.J. No. 2695 (Ont. C.A.) para. 30-35, Doherty J.A. wrote of the requisite approach to assessing relevance as follows: 30 ... Relevance must be assessed in the context of the entire case and the respective positions taken by the Crown and the defence: R. v.Sims (1994), (BC CA), 87 C.C.C. (3d) 402 (B.C.C.A.) at pp. 420-427, 28 C.R. (4th) 231 (B.C.C.A.). There is no rulelimiting prior misconduct by the deceased to cases in which self-defence is raised. 31 In R. v.

Corbett, (SCC), [1988] 1 S.C.R. 670 at p. 714, 41 C.C.C. (3d) 385 at p. 416, La Forest J. (in dissent)described the significance of relevance to our law of evidence: All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier offact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy. 32 In explaining what he meant by relevance, La Forest J. referred to Morris v.

R., (SCC), [1983] 2 S.C.R. 190, 7 C.C.C.(3d) 97, and then said at p. 715 S.C.R., pp. 417-418 C.C.C.: It should be noted that this passage [from R. v. Morris ] followed a general discussion of the concept of relevance in which the courtaffirmed that no minimum probative value is required for evidence to be deemed relevant. The court made it clear that relevance does notinvolve considerations of sufficiency of probative value. ...

A cardinal principle of our law of evidence, then, is that any matter that hasany tendency, as a matter of logic and human experience, to prove a fact in issue, is admissible in evidence, subject, of course, to theoverriding judicial discretion to exclude such matter for the practical and policy reasons already identified.

33 While La Forest J. dissented in the result in Corbett, his discussion of the significance and meaning of relevance is consistent withprevious and subsequent majority decisions of the Supreme Court of Canada: Morris v. R., supra, per McIntyre J., at pp. 191-92 S.C.R.,pp. 98-99 C.C.C., per Lamer J. (dissenting in the result) at pp. 200-01 S.C.R., pp. 105-06 C.C.C.; R. v. Seaboyer, (SCC),[1991] 2 S.C.R. 577 at pp. 609-12, 66 C.C.C. (3d) 321 at pp. 389-92.

Relevance as explained in these authorities requires a determinationof whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” moreprobable than it would be without the existence of “Fact A”. If it does then “Fact A” is relevant to “Fact B”.

As long as “Fact B” is itselfa material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible. [60] In Egger, at p. 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 isrelevant and should be disclosed—Stinchcombe, supra, at p. 345.

This requires a determination by the reviewing judge that production ofthe information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise inmaking a decision which may affect the conduct of the defence such as, for example, whether to call evidence. [61] However, an accused does not have a right to adduce irrelevant evidence (R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, para.37). [62] The Crown has a continuing obligation to disclose. In R. v. Girimonte (1997), (ON CA), 121 C.C.C. (3d) 33(Ont.

C.A.), the Court said this about the timing of Crown disclosure: 17 The Crown’s obligation to disclose is triggered by a request for disclosure from counsel for an accused. Initial disclosure mustoccur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to themode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure.

However, as is recognizedin Stinchcombe, supra, at p. 14, the Crown will often be unable to make complete disclosure at the initial stage of the disclosure process.There will also be rare cases in which the Crown can properly delay disclosure until an investigation is completed. If full disclosurecannot be made when initial disclosure is provided, the Crown’s obligation to disclose is an ongoing one and requires that disclosure bemade as it becomes available and be completed as soon as is reasonably possible.

In any event, an accused will not be compelled to elector plead if the accused has not received sufficient disclosure to allow the accused to make an informed decision. [63] Whether the Crown has discharged its duty to disclose may be reviewed by the Court.

This process was explained by Sopinka J. atpp. 340 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 areasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unlessthe non-disclosure is justified by the law of privilege.

The trial judge might also, in certain circumstances, conclude that the recognitionof an existing 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 tothe 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. … [64] As a practical matter, during a review of the Crown’s disclosure obligations prior to trial or during trial, a trial judge must look at amyriad of relevant factors touching on whether the Crown has fulfilled its obligation in good faith and in a timely manner.

Withoutproviding an exhaustive list, this could include looking at the essential elements of the offence, the complexity of the investigation, thevolume and type of disclosure already provided, what the Crown refuses or is unable to provide, a preliminary assessment of how thefurther disclosure sought is relevant in the sense of assisting the accused, whether it is part of the case to meet, the interaction betweenthe Crown and defence, the behaviour of the Crown and defence, the timing of disclosure and the nature of the defence requests fordisclosure.

The interplay of these factors is case specific. [65] However, merely establishing a breach of the Crown’s obligation to disclose does not establish a Charter breach. Watt J.A. in R. v.Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 111, stated: 111 A breach of the Crown’s disclosure obligations, without more, does not constitute a breach of s. 7 of the Charter. To demonstrateconstitutional infringement, and thus entitlement to a just and appropriate remedy, an accused must show actual prejudice to his or herright to make full answer and defence resulted from the infringement: R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, atpara. 74; Bjelland, at para. 21. [66] With these general principles in mind, I turn now to the issues argued by Mr. Anderson. A. Failure to Rule - Deliberately Withheld Disclosure - Lost Evidence [67] On this issue, Mr. Anderson argues that the trial judge: (

i) erred in finding that the Crown had generally met its obligation ofdisclosure; (ii) failed to address the 22 issues of outstanding disclosure raised in his counsel’s letter dated September 29, 2011; (iii) failedto address the issue of late disclosure by the Crown; and, (iv) failed to appreciate that the lost disclosure would impact his right to makefull answer and defence. [68] Mr. Anderson does not argue that the trial judge has incorrectly stated the law governing disclosure, but rather that the trial judge

has misapplied the law to the facts and circumstances of this case. General Disclosure Obligations [69] As is evident from the two chronologies attached to the December 7, 2011, delay decision, the trial judge was fully apprised ofboth the Crown’s and the defence’s version of what disclosure was requested, what disclosure was provided, what disclosure was refusedand the relevant dates respecting these matters.

The trial judge was also aware of the nature of the case, the nature and extent of thedisclosure, the reasons of the Crown for refusing disclosure as well as the reasons why the defence wanted further disclosure in thecontext of what it had already received. The trial judge was aware of the interactions of the Crown and defence counsel in relation todisclosure. To this extent, the trial judge had substantial evidence before him which was germane to a review of the Crown’s disclosureobligations. [70] The trial judge concluded that the Crown had generally met its obligations to disclose.

There are a number of findingsunderpinning that conclusion. To begin with, it may be inferred that he found the defence requests unreasonable in the context of thenature of the case. He cites, as an example of evidence of marginal value to the defence even if it were true, the unmeritorious request ofthe defence to have police computers sent for forensic analysis to determine if texts taunting Mr.

Anderson about his arrest were thework of the police; this without a scintilla of proof the texts came from them. [71] He cites defence requests for more disclosure in the context of the immense size of the investigation and the tens of thousands ofpages of disclosure already given.

He also cites the defence position that it is entitled to every piece of paper related to the case and thatit need not establish relevance, but rather the Crown must list any and all documents of any sort and establish their irrelevance. [72] He drew the conclusion that, in the context of the disclosure already given, the defence request for more disclosure was a fishingexpedition (T1006) and that the demands were frivolous and abusive. There is support for this conclusion. [73] The fishing expedition approach of the defence, in this case, is exemplified by this excerpt from the first page of Mr.

Anderson’scounsel’s September 29, 2011, letter: Please disclose as follows: 1) Emails between police officers and police officers and others assisting in this investigation (i.e. banks, hotels, businesses, phonecompanies, civilians). This type of disclosure is critical as a method of alerting the defence to unconstitutional investigative steps, alongwith identifying violations of the disclosure obligations of the police. It appears from this that three years and four months after Mr.

Anderson was charged, the defence were trolling peripheral waters, i.e.,communications with banks, hotels, businesses, phone companies and civilians, hoping to find unconstitutional investigative steps orviolations of the police’s disclosure obligations. [74] What Mr. Anderson submits is that the possibility of an arguable defence in the material sought cannot be eliminated and thereforethe Crown must disclose these items to make sure there is no stone unturned. While this is theoretically true, it is not the law.

Theobligation of the Crown to keep disclosing more and more peripheral material is not conditioned by the defence’s speculation that theremight be something of significance which might be useable by the defence. This is what the trial judge referred to as marginal materialat best. [75] The right to make full answer and defence does not entitle Mr.

Anderson, after tens of thousands of pages of disclosure alreadygiven, to make general requests for every last piece of paper involved in the investigation based on speculation that it is relevant or thatsomewhere in the great morass of investigatory documents yet to come lies the pearl of inappropriate police behaviour which may formthe basis of a constitutional argument.

This much is evident from the comments of Doherty J.A. in Girimonte: 12 Disclosure demands which are no more than “fishing expeditions”, seeking everything short of the proverbial kitchen sinkundermine the good faith and candour which should govern the conduct of counsel. … It would be obvious to anyone that theprosecution would resist compliance with such a far-fetched demand. Disclosure demands like some of those made in this case seemcalculated to create needless controversy and waste valuable resources rather than to assist the accused in making full answer anddefence. [76] In R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 194, the Court stated: 194 Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of informationwhich might possibly be useful to his defence. From the accused’s perspective, the catalogue would include not only informationtouching on the events at issue, but anything that might conceivably be used in cross-examination to discredit or shake a Crown witness.When other perspectives are considered, however, the picture changes.

The need for a system of justice which is workable, affordableand expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up inthe justice system — all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothingmore, is what the law requires. [77] In the context of these cases, the defence argument that one cannot eliminate the possibility that the sought after disclosure will beof benefit to the accused wears thin. [78] Mr.

Anderson wanted detailed disclosure to attempt to challenge the wiretap authorizations and search warrants. However, thebroad disclosure requested often had no connection to this purpose. The trial judge determined that the Crown had, by August 5, 2008,provided the vast majority of disclosure and had attempted to refine disclosure and respond to the specific requests of the defence.

[ 79 ] There is no indication that the trial judge disregarded or misapprehended any evidence or took into consideration any irrelevant factor or, for that matter, made any palpable and overriding error on the facts. The trial judge was very conversant with the nature of the Crown’s case, what had been disclosed, what was sought and the course of dealings regarding disclosure. I cannot say that he erred on this issue. Failure to Address 22 Issues [ 80 ] The defence argues that the 22 issues of outstanding disclosure were not addressed by the trial judge.

However, it is clear from the reasons of the trial judge that he was alive to what remained of the 22 items in issue after the Crown’s October 17, 2011, response. It is obvious he had reviewed them and had an understanding of what they were. He commented that he and counsel had spent two days sorting through them. He determined the defence demands were frivolous and not worthy of further comment other than to say they do not give rise to any Charter breach. [ 81 ] In

summary, he concluded that what remained of the 22 items had no merit apart from late disclosure and lost disclosure. Implicit is that the Crown had appropriately responded to the defence’s September 29, 2011, letter by virtue of its October 17, 2011, letter. The approach of the trial judge is entirely appropriate and justified in this case. Late Disclosure [ 82 ] The trial judge stated the following at p. T1006-T1007: In an ideal world, all the disclosure should be provided to the accused the day he is charged. However, sometimes, especially in a complex and lengthy investigation, it is simply not possible.

Accordingly, it is reasonable to give to the accused as much as possible as soon as possible. Also, as additional disclosure is found or discovered, the Crown has an ongoing obligation to continue to supply the disclosure as and when it is acquired and discovered. [ 83 ] Mr. Anderson argues that some disclosure was unacceptably late. Mr. Anderson argues that the failure to disclose certain documents earlier was a conscious Crown decision, not an inadvertent discovery of those documents. [ 84 ] The trial judge correctly observed at p.

T1007 that “what is late, and what is unreasonably late is a matter of degree that is dependent upon all the circumstances”. [ 85 ] In respect of late disclosure, the trial judge made the following findings: (

a) the Crown was diligent and open-minded in its approach to review the extent of the vetting of documents in preparation for the disclosure application; (

b) the late documents disclosed did not change the essence of the case; (

c) the Crown responsibly took a second look at its documentation; (

d) the Crown was not attempting to hide or conceal relevant information; (

e) there was no improper motive in the Crown’s actions; and (

f) the revised unvetting was relatively small or insignificant. [ 86 ] These conclusions, most of them factual, underlay the trial judge’s decision that late disclosure did not violate Mr. Anderson’s s. 7 rights and, in any event, would not result in a stay. [ 87 ] A trial judge is particularly suited to make a determination of how late disclosed documents may impact on the trial, whether that late disclosure impacted the defence and the reasons for late disclosure. The trial judge in this case had access to the unvetted documents and knew the Crown’s theory of the case. He knew the thrust of Mr.

Anderson’s pre-trial motions. He had an appreciation of the legal principles regarding disclosure. The trial judge properly put the late disclosure in the context of the size and complexity of the case. [ 88 ] The fact that the Crown changed its view of whether or not a document should be disclosed does not, in my view, drive a conclusion that the Crown has deliberately withheld relevant disclosure or not met its disclosure obligation. Some documents are glaringly relevant, others less so and some not obviously so. This may change as disclosure proceeds especially in a complex case with voluminous disclosure.

The Crown may object to disclosure on relevance or some other principled bases but because of its continuing obligation to disclose, it has a right to revisit those items it objected to disclose and reconsider its objections. The initial resistance by the Crown, even if it is later shown to be unwarranted, does not in every case result in a finding that the Crown was in breach of its obligations.

Late disclosure, which occurs because the Crown reconsiders its earlier objections to disclose, should not necessarily be taken as a failure of its disclosure obligations in the absence of improper purpose. [ 89 ] It may also be inferred, given the trial judge’s findings respecting the extent of late disclosure and its effect on the essence of the case, that he was not convinced that the protestations of the appellant’s counsel for an adjournment of the trial because they needed more time to prepare, were accurate. [ 90 ] I cannot say that he approached the issue of late disclosure incorrectly.

Lost Disclosure [ 91 ] Apart from the lost notebooks which will be dealt with later, Mr. Anderson argues that various emails between the investigating

officers which had been destroyed and lost intelligence reports hampered his ability to make full answer and defence. The emails andintelligence reports were the subject of the September 29, 2011, defence request and the October 17, 2011, Crown response. Mr.Anderson argues that the trial judge did not address these matters. [92] While it is true that these items were not dealt with specifically in the trial judge’s decision, they were nevertheless dealt with aspart of his approach to the 22 items. To this extent, these requests, even if they concerned lost documents, were determined to beunmeritorious. Mr.

Anderson’s argument on this issue fails. B. Failure to Order Laporte Inventory [93] Mr. Anderson next argues that the trial judge erred in determining that the Crown had provided a Laporte inventory and failed toorder a proper Laporte inventory thereby failing to rule on many missing documents. [94] The trial judge properly referenced the comments of Sherstobitoff J.A. in Laporte, at para. 18, which are the genesis of this kind ofinventory.

This procedure has been specifically approved by at least one other appellate court (Chapelstone Developments Inc. v.Canada, 2004 NBCA 96, 191 C.C.C. (3d) 152, at paras. 26-27), but has never been universally adopted by courts across the country. [95] In R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727, the Court set out the procedure to be followed by a reviewingjudge when the Crown refuses to disclose material.

The Court explained: 25 In situations in which the existence of certain information has been identified, then the Crown must justify non-disclosure bydemonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged. The trial judge mustafford the Crown an opportunity to call evidence to justify such allegation of non-disclosure. As noted in R. v. Stinchcombe, supra, at p.341: This may require not only submissions but the inspection of statements and other documents and indeed, in some cases, viva voceevidence.

A voir dire will frequently be the appropriate procedure in which to deal with these matters. [96] The process outlined in Laporte is not inconsistent with Chaplin. Chaplin does not require an inventory to be produced. TheCrown simply has to justify non-disclosure. The manner in which this is done will vary depending on the case.

In some cases the judgemay just inspect the disputed material and in others the submissions of counsel in the absence of a list may suffice. [97] In my view, a Laporte inventory is no more than suggested by Sherstobitoff J.A.: a practical suggestion to assist counsel and thecourt on a review of the Crown’s obligation to disclose. It is a tool that a trial judge may, in his discretion, use to help determinewhether the Crown has met its disclosure obligations but he is not obliged to order one in every case.

The Crown is not legally obligatedto provide one in every case or to provide one upon the request of the defence. That said, the Crown may choose to provide it,nevertheless, because it assists the review process. [98] The trial judge concluded that a type of Laporte inventory had been provided and achieved the goals of such a document.

Ofinterest is the reference by the trial judge to the Laporte inventory in the context of the delay decision: 108 The revised Laporte inventory (Exhibit P-3), provided by the Crown on April 29, 2011 was exhaustively examined by the Court.Eventually, after several hours of tediously reviewing the documentation in open court, the defence eventually conceded that the vettedand withheld material outlined in the Laporte inventory was with two exceptions, appropriate. The two points in contention wereresolved in favour of the Crown.

Whatever the document could be called, it was helpful to counsel and the Court as part of the review process. [99] There was no error made on this issue. C. Lost evidence - video surveillance - Appellant’s Spruce Meadow Acreage - Relying on Submissions which are Contrary tothe Evidence [100] Mr.

Anderson argues that it was not open to the trial judge to determine that the videos did not exist based on submissions byCrown counsel in contradiction to the lead investigator’s sworn testimony and emails that circumstantially supported the existence of thequestioned video surveillance. [101] The governing law is explained in the following excerpt from Chaplin: 30 In contrast to the above, in some cases, this being one, the existence of material which is alleged to be relevant is disputed by theCrown.

Once the Crown alleges that it has fulfilled its obligation to produce it cannot be required to justify the non-disclosure of materialthe existence of which it is unaware or denies. Before anything further is required of the Crown, therefore, the defence must establish abasis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant.Relevance means that there is a reasonable possibility of being useful to the accused in making full answer and defence.

The existence ofthe disputed material must be sufficiently identified not only to reveal its nature but also to enable the presiding judge to determine that itmay meet the test with respect to material which the Crown is obliged to produce as set out above in the passages which I have quotedfrom R. v. Stinchcombe and R. v.

Egger, supra. 31 Although the obligation cast upon the defence which I have characterized as “a basis” is in the nature of an evidentiary burden, Iprefer not to call it that because it can, and in many cases will, be discharged not by leading or pointing to evidence but by oralsubmissions of counsel without the necessity of a voir dire. Accordingly, I avoid the terms “air of reality” or “live issue” and other termsused in some of the cases that are more appropriate when used to describe a true evidentiary burden. Viva voce evidence and a voir dire

may, however, be required in situations in which the presiding judge cannot resolve the matter on the basis of the submissions ofcounsel. … 33 If the defence establishes a basis in accordance with its obligation in that regard as outlined above, the Crown must then justify acontinuing refusal to disclose. The obligation of the Crown is the same as its obligation in first instance which is defined in R. v.Stinchcombe, supra, and elaborated in R. v.

Egger, supra. … [102] Chaplin therefore suggests that these kinds of applications can proceed by way of evidence if the court cannot resolve the matteron the basis of submissions of counsel. It may be inferred that a combination of both is acceptable as well. This makes sense becauseunlike the elements of the offence, the existence of evidence on a disclosure review is an incidental issue which may not require sworntestimony in all cases. [103] In this case, after Crown counsel had finished his submissions, defence counsel suggested that his submissions were not evidence.

When the trial judge offered to order the Crown to produce the video if available, defence counsel acknowledged that he had no quarrelwith Crown counsel’s representation that the video did not exist but rather with his

summary of the two witnesses which could contradictwhether the evidence was collected. The defence here was correct. If the Crown wanted the Court to consider the evidence of the twowitnesses, they should have testified. However, the trial judge did not rely on the

summary of the evidence of the two witnesses. Rather, he relied on the representations of the prosecutor as an officer of the Court that the video did not exist. [104] In view of Chaplin and defence counsel’s response to the Crown’s submissions, the trial judge was entitled to take into accountcounsel’s assurance that no video existed and make his decision based on all the evidence before him as to whether the video actuallyexisted. There was no error made in this regard. D.

Lead Investigator Lost Five of Seven Notebooks [105] The standard of review in the case of lost evidence and the trial judge’s refusal to grant a stay is the same as that for Charter reliefgenerally, i.e., whether there is misdirection on the part of the trial judge if the decision is so clearly wrong as to amount to an injustice(see: R. v. Carosella, (SCC), [1997] 1 S.C.R. 80, at para. 48, and R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, atpara. 15). [106] The trial judge appropriately cited the governing law respecting analysis of this issue; R. v. Bradford (2001), (ON CA), 151 C.C.C. (3d) 363 (Ont. C.A.).

Laskin J.A. in R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153, has more recentlyrestated the governing law: 32 The Crown’s duty to disclose relevant evidence includes the obligation to preserve relevant evidence. However, as Sopinka J.noted in his majority judgment in R. v.

La, (SCC), [1997] 2 S.C.R. 680, “despite the best efforts of the Crown topreserve evidence, owing to the frailties of human nature, evidence will occasionally be lost.” The loss or destruction of relevantevidence that was once in the Crown’s possession or control thus does not automatically equate to a breach of the Crown’s disclosureobligation.

In La, Sopinka J. sets out the legal framework for analyzing when lost or destroyed evidence gives rise to a breach of s. 7 ofthe Charter and when it justifies a stay of proceedings. … 35 Where the Crown satisfactorily explains the loss or destruction of the evidence, it has met its disclosure obligation.

Section 7 ofthe Charter has not been breached. Still, “in extraordinary circumstances” the accused may be entitled to a stay if the accused can showthat the lost or destroyed evidence is “so prejudicial to the right to make full answer and defence that it impairs the right of an accused toreceive a fair trial.” [107] Whether a piece of missing evidence will result in irreparable harm to the accused’s ability to make full answer and defencedepends on the evidence lost and the circumstances of the case. [108] This point is made in R. v.

Forster, 2005 SKCA 107, 201 C.C.C. (3d) 290, where a stay of proceedings was ordered when the leadinvestigator took his notes and transferred them onto a computer disc, edited them and then destroyed his original notes. In coming to itsconclusion, this Court was persuaded by the number of uses that the destroyed notes could have been put to and the officer discardingparts of his notes that he thought were insignificant resulted in the disc having a different substance than the original notes. The Courtheld that the prejudice to the accused as a result of the loss was significant enough to justify a stay.

The facts of the case before us aredifferent. [109] Mr. Anderson argues that the trial judge’s finding that the notebooks were not lost through unacceptable negligence is unsupportedby the evidence. I do not agree. The trial judge determined that there was no hint that the notebooks were deliberately destroyed for anynefarious purpose. He finds they were misplaced due to human error. These are factual determinations which support his conclusionthere was no unacceptable negligence.

Looking at the evidence on this issue as a whole, he could justifiably come to that conclusion. [110] Absent a finding of unacceptable negligence, there was no basis for an immediate stay unless Mr. Anderson established actualprejudice to his right to make full answer and defence sufficient to impair his right to a fair trial (see: R. v. Bradford, (ON CA), 2001 151 C.C.C. (3d) 363 (Ont. C.A.), at para. 8). [111] Before the trial judge, Mr. Anderson argued that he could not make full answer and defence because the lost notebooks prevented

him from properly mounting a challenge to the wiretap authorizations. But Mr. Anderson was not seriously prejudiced by the loss vis-à-vis the wiretap challenge. The trial judge took some care to observe that the affidavits filed in support of the wiretap authorization didnot rely extensively on Sgt. Francis’s involvement, and when they did, the assertions were mostly supported by underlying documents. He found that the notebooks formed a “small, virtually minute portion of the total picture”. He concluded that the impact of the lostnotes was minimal with respect to the wiretap authorization challenge.

This indicates an appreciation of the nature and significance ofthe lost evidence in the context of the use to which it could be put. The trial judge was justified in coming to the conclusion he did. [112] The trial judge appropriately left this issue to the completion of trial on the basis that there could still be a breach if the loss can beshown to be so prejudicial that the accused is denied the opportunity to make full answer and defence such that it would impair a fairtrial generally. I can find no misdirection on his

part in exercising his discretion in this regard. Moreover, the decision is not so clearlywrong as to amount to an injustice. [113] As a result of the agreed statement of allegations and admissions, the trial court did not have the opportunity to consider the impactof the loss of the notebooks against the whole of the relevant evidence. Nonetheless, the bottom line is clear. Mr. Anderson did notshow that the loss of the notebooks impaired full answer and defence and prevented a fair trial. E. Criticism of Defence for Diligently Seeking Disclosure [114] Mr.

Anderson argues that the trial judge misinterpreted the law of disclosure which resulted in criticism of the defence in hisrulings and his determination that the claims for disclosure were without merit. Insofar as this issue deals with the allegation of the trialjudge’s misinterpretation of the law of disclosure, it has been dealt with in my analysis of previous issues. The trial judge was aware ofthe law of disclosure and properly applied it. [115] Insofar as any criticism of the defence by the trial judge is concerned, the comments of the trial judge on their own are not an errorof law.

I do not read the trial judge’s comments as a criticism of the diligence of defence counsel as much as an observation that theefforts of the defence lacked focus and, in the context of the earlier disclosure given in this case, the defence requests for moredisclosure were unmeritorious. F. File Size Could Not Justify Late Disclosure [116] Mr. Anderson argues that a large and complex case and file size, by itself, cannot justify late disclosure. While this is true, asexplained earlier, because disclosure is case specific, file size and complexity will result in different time lines respecting disclosure.

Whether the delay in disclosure is unreasonable or improper will vary case by case and it will be for the trial judge to determine ifdelayed disclosure has hampered the defence. [117] I have already indicated earlier that the trial judge could take the size and complexity of the investigation into account in assessingwhether the Crown has met its disclosure obligations in a timely manner. Of note is that the trial judge found as a fact that by August 5,2008, the vast majority of disclosure had been made.

The trial judge made no error by including file size and case complexity as factorsrespecting his assessment if disclosure was improperly late. G. Failure to Ascribe Responsibility for Over-Vetting [118] Mr.

Anderson argues that the trial judge erred in not considering that over-vetting delayed defence preparation and interfered withthe ability to make full answer and defence and by failing to blame the Crown for providing what amounted to improperly vetteddocuments under the guise of full disclosure. [119] This issue is similar, if not identical, to the late disclosure issue discussed earlier and has been dealt with. H. Delay in Violation of s. 11(

b) of the Charter [120] The standard of review respecting s. 11(

b) decisions has been recently set forth in R. v. Nguyen, 2013 ONCA 169, 269 Sask.R. 275,at para. 47: 47 It is common ground between the parties that on appeal, the trial judge’s characterization of the various periods of delay on s.11(

b) applications, as well as the ultimate decision concerning whether the delay is unreasonable, is reviewable on a correctnessstandard: R. v. Tran, 2012 ONCA 18, at para. 19; R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1, at para. 18; and R. v. Schertzer, 2009ONCA 742, 248 C.C.C. (3d) 270, at para. 71. The underlying findings of fact are subject to review on a standard of palpable andoverriding error: Tran, at para. 19; Khan, at para. 18; and Schertzer, at para. 71. [121] The analytical framework respecting an assessment of whether there has been unreasonable delay is set forth in R. v.

Morin, (SCC), [1992] 1 S.C.R. 771 at pp. 787-88: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, “[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?” (p. 1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. With this in mind, I turn to Mr. Anderson’s arguments. [ 122 ] Mr. Anderson argues that the trial judge erred in not finding there was unreasonable delay. He does not challenge the trial judge’s statement of the law. He does not directly challenge the trial judge’s characterization of the individual time periods of delay or the underlying facts found by the trial judge respecting those periods. Instead, he argues that the approach by the trial judge to the delay issue resulted in a trade-off between his s. 7 and s. 11(

d) rights and his s. 11(

b) rights, i.e. , he was forced to give up his right to a trial within a reasonable time because of the time it took him to pursue further disclosure as a result of the Crown’s failure to disclose. [ 123 ] Mr. Anderson focused almost all of his argument on this issue on the intelligence reports, the last of which were not disclosed until just prior to trial and without which he claims the trial could not proceed. As an initial observation, it is seldom that a whole trial and the ability to properly conduct it hangs on one set of documents, especially in the context of tens of thousands of pages of other disclosure, many

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