R v Cathcart, 2019 SKCA 90

Court of Appeal for Saskatchewan Docket: CACR3154 Citation: R v Cathcart , 2019 SKCA 90 Date: 2019-09-18 Between: Christopher Douglas Cathcart Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Barrington-Foote On Appeal From: CRM 136 of 2017, Saskatoon Appeal Heard: June 11, 2019 Counsel: Christopher Douglas Cathcart appearing on his own behalf Andrew S.

Davis for the Respondent Kalmakoff J.A. I. Introduction [ 1 ] After a trial, Christopher Cathcart was convicted of two counts of unlawful confinement, contrary to s. 279(2) of the Criminal Code , two counts of attempted robbery, contrary to s. 344(1) , and one count of breaching a bail undertaking, contrary to s. 145(3) . He was acquitted on charges of dangerous driving and flight from police ( R v Caisse (9 March 2018) Saskatoon, CRM 137/2018 (Sask QB)). [ 2 ] Mr.

Cathcart was sentenced to 18 months’ imprisonment for the unlawful confinement charges, three years consecutive for the attempted robberies, and three months consecutive for the breach of undertaking, for a total of four years and nine months, which was reduced by 18 months for the time he spent in custody prior to sentencing. [ 3 ] Mr. Cathcart appeals his convictions. He argues that the trial judge erred by finding the Crown’s evidence to be credible, and also by admitting certain evidence. [ 4 ] Mr.

Cathcart also argues that the Crown failed to make full disclosure, in violation of his right to make full answer and defence, guaranteed by s. 7 of the Charter , and that the trial judge erred by failing to make such a finding. [ 5 ] Finally, Mr. Cathcart argues that the Crown’s failure to make full disclosure was part of a deliberate and calculated course of conduct on the part of both the prosecutor and the police to bring spurious charges against him and deprive him of a fair trial. This, he says, amounts to an abuse of process, the appropriate remedy for which is a stay of proceedings. [ 6 ] Mr.

Cathcart’s arguments relating to abuse of process and some of his arguments relating to disclosure rely on fresh evidence. In that regard, Mr. Cathcart applies under s. 683(1) for orders (

a) compelling the production of certain material by way of disclosure; (

b) directing that various witnesses be compelled to attend and be examined before this Court; and (

c) permitting him to adduce fresh evidence. [ 7 ] For the reasons that follow, I would allow Mr. Cathcart’s appeal, set aside his convictions, and order a new trial. II. Factual background [ 8 ] Mr. Cathcart was tried in the Court of Queen’s Bench, along with Robert Caisse and Garry Cote. They were jointly charged with two counts of unlawful confinement and two counts of attempted robbery. Mr. Cathcart was also individually charged with the offences of dangerous driving, flight from police and breach of undertaking. Mr. Caisse was represented by a lawyer at the trial, Mr. Cote and Mr.

Cathcart were not. [ 9 ] The incident that led to the charges occurred in Saskatoon during the early morning hours of September 4, 2016. At around 2:00 a.m. that morning, Mr. Cathcart went to the residence of Tamara Simpson. Ms. Simpson and Mr. Cathcart had not met in person prior to this but had communicated over the internet. [ 10 ] Ms. Simpson told Mr. Cathcart, during their online communications, that she and her cousin Thalia Wedawin, who was staying at the same residence, wanted to buy some marijuana and go drinking. Mr. Cathcart drove to Ms. Simpson’s house in his SUV to pick them up. Ms. Simpson and Ms.

Wedawin got into Mr. Cathcart’s vehicle. Two other women were in the vehicle at that time. Mr. Cathcart then drove to various locations in the city. At some point, Ms. Simpson purchased a bottle of vodka, which those in the vehicle shared as they drove around. [ 11 ] Eventually, Ms. Simpson told Mr. Cathcart that she needed to use a bathroom and he stopped at a house so she could do so. At

this house, Ms. Simpson purchased a small amount of cocaine from someone. Ms. Wedawin also entered the residence to use the bathroom. While Ms. Simpson and Ms. Wedawin were in the residence, the woman from whom Ms. Simpson had purchased the cocaine accused her of not paying for it. A tense exchange followed, while the woman demanded money or clothing from Ms. Simpson and Ms. Wedawin to satisfy the “debt”. [ 12 ] Ms. Simpson and Ms. Wedawin left the residence, but noticed two men, who turned out to be Mr. Caisse and Mr. Cote, speaking to the woman who had been demanding payment for the cocaine. Mr. Caisse and Mr.

Cote ordered Ms. Simpson and Ms. Wedawin to get into Mr. Cathcart’s vehicle. Ms. Simpson and Ms. Wedawin got into the back seat, flanked by Mr. Caisse and Mr. Cote. Mr. Cathcart was in the driver’s seat, and another woman was in the front passenger seat. [ 13 ] Ms. Simpson and Ms. Wedawin said they wanted to get out of Mr. Cathcart’s vehicle, but were blocked from exiting by Mr. Caisse and Mr. Cote. The trial judge accepted that Mr. Cathcart drove the vehicle around the city while Mr. Caisse and Mr. Cote assaulted and threatened Ms. Simpson and Ms.

Wedawin and demanded that they turn over their money and belongings. The trial judge also accepted that, while this was taking place, there was communication between Messrs. Caisse, Cote and Cathcart regarding money that they believed Ms. Simpson and Ms. Wedawin had in their possession. [ 14 ] The incident came to an end when the vehicle was stopped by the police on the outskirts of Saskatoon. Ms. Wedawin and Ms. Simpson left the vehicle and approached the officers. Messrs. Caisse, Cote and Cathcart were arrested immediately thereafter.

The trial judge accepted the evidence of the complainants and found that the three accused had acted in concert in committing the offences of unlawful confinement and attempted robbery. In that respect, he said: [14] It is clear from this evidence that Mr. Cote and Mr. Caisse acted in concert to get the complainants into the back seat of the SUV, the purpose of which was to obtain the money and anything else of value from the complainants. Clearly Mr. Cathcart had to be involved. The information Mr. Cote and Mr. Caisse had could have only come from Mr. Cathcart. As well, Mr.

Cathcart was the driver of the vehicle as it moved around the city during which time Mr. Caisse and Mr. Cote were attempting to get the complainants’ possessions. The evidence of the complainants regarding the altercation and the yelling by everyone in the back seat could not have gone unnoticed by Mr. Cathcart. Ms. Simpson requested Mr. Cathcart to take them home or stop and let them out, and he refused to do so. Mr. Cathcart by driving the vehicle in these circumstances with Mr. Caisse and Mr.

Cote, who had not been in the vehicle before and not invited in by the complainants, was clearly part of the overall scheme to take the complainants’ property. [ 15 ] I am not certain as to which of Mr. Caisse and Mr. Cote slapped each of the complainants and how many times, but they were clearly both involved in the physical altercation with the complainants in the back seat of the SUV. They both positioned themselves to prevent the complainants from leaving the vehicle at any time. They both were demanding the complainants’ possessions. It is not necessary to have preciseness with respect to who put Ms.

Simpson in the chokehold, who punched each complainant and when, the exact number of slaps that occurred as all three of them were clearly involved in the effort to obtain both complainants’ personal possessions. [ 16 ] The inconsistency in the details from the complainants is understandable. They were young women in a situation not of their making in which complete strangers were driving them around in a vehicle and refusing to take them home. They were in unfamiliar geographic and emotional territory.

The back seat of the vehicle was dark. [ 17 ] Their testimony on the stand was unshaken with respect to the issues of unlawful confinement and attempted robbery. Ms. Simpson’s testimony was at times given in a dramatic fashion. Ms. Wedawin’s testimony reflected her inexperience with drugs, alcohol and life in the big city. They were both compelling. [ 18 ] The defence asked many questions to show that there was opportunity for the complainants to fabricate a story as they were left alone without police supervision at various times. Opportunity does not equate with action.

The opportunity to discuss and come up with a fabricated story between the complainants does not in my opinion detract from the truthfulness of their description of what occurred. I find that there was no collusion or fabrication with respect to creating a story in an attempt to get the accused convicted. [ 19 ] The charge of forcible confinement is different and distinct from the charge of kidnapping under s. 279(1) of the Criminal Code .

For unlawful confinement it is necessary that the Crown prove beyond a reasonable doubt that for a significant period of time the complainants are forcibly restrained or directed contrary to their wishes so that they cannot move contrary to their inclination and desire. See R v Pritchard , 2008 SCC 59 , [2008] 3 SCR 195. There is no question that Mr. Caisse and Mr. Cote physically restrained the complainants from leaving the vehicle and from moving freely about in the vehicle while they attempted to search them for possessions to take. The restraint here was both physical and psychological in that Mr.

Caisse and Mr. Cote were yelling and threatening and striking the complainants while ensuring that they remained in the moving vehicle. Mr. Cathcart was fully aware of what was occurring in the back seat and participated and aided Mr. Cote and Mr. Caisse by continuing to drive the vehicle in a fashion that would not allow them to leave or return to their home. [ 20 ] Under s. 21 of the Criminal Code they were all parties to the offence that has been charged, that is unlawfully confine the complainants and attempt to commit robbery against the complainants. As such I find each of Mr. Cote, Mr. Cathcart and Mr.

Caisse guilty of counts 1 to 4 in the Indictment. [15] Although the trial judge accepted that Mr. Cathcart was the driver of his vehicle at the relevant times, he concluded that the charges of dangerous driving and flight from police had not been proven beyond a reasonable doubt. [16] As is apparent from the trial judge’s reasons, the credibility of the complainants’ evidence was a central issue. The decision as to whether the Crown had proven its case against the three accused turned on whether the trial judge accepted the complainants’ testimony regarding the events that took place inside Mr.

Cathcart’s vehicle. III. grounds of appeal [17] Mr. Cathcart was not represented by counsel at trial, or on the appeal. Portions of his written materials were difficult to follow,

and his grounds of appeal were not perfectly defined, but his arguments can be organized into six grounds of appeal. Four of these relate tothings that occurred during the trial or matters that were raised before the trial judge; two are arguments that Mr. Cathcart is raising forthe first time on appeal. [18] The four grounds of appeal Mr. Cathcart advances relating to matters addressed during the trial are as follows: (

a) the trial judge erred by failing to properly assess the credibility and reliability of the evidence identifying Mr. Cathcart as oneof the persons involved in the offences; (

b) the trial judge erred by admitting as evidence on the trial testimony given at the preliminary inquiry by a Crown witness, Cst.Forsyth, pursuant to s. 715 of the Criminal Code; (

c) the trial judge erred by permitting the trial to proceed, even though Mr. Cathcart was not in physical possession of hisdisclosure material or notes during a portion of the trial; and (

d) the trial judge erred by failing to find that the Crown had breached its disclosure obligations. [19] The grounds of appeal based on new arguments are these: (

a) the Crown deliberately revoked and disposed of relevant disclosure material that had been in Mr. Cathcart’s possession priorto trial, resulting in a breach of its disclosure obligations and an abuse of process; and (

b) the police officers engaged in a course of action towards Mr. Cathcart which constituted an abuse of process. This course ofaction included using improper methods to gather evidence, influencing witnesses, and intimidating him and his co-accused. [20] As I will discuss, the trial judge made errors in the way that he dealt with Mr. Cathcart’s applications relating to disclosure.Those errors affected the fairness of the proceedings and, accordingly, Mr. Cathcart is entitled to a new trial. Because of that, it is notnecessary to deal with Mr.

Cathcart’s arguments relating to the trial judge’s assessment of the credibility and reliability of the evidenceand the admission of Cst. Forsyth’s testimony from the preliminary inquiry. [21] The grounds of appeal that require analysis can be grouped into two subject areas: (

a) disclosure; and (

b) abuse of process. Mr.Cathcart’s application for orders compelling the production of material, the attendance of witnesses for examination, and permitting him toadduce fresh evidence relate, in some respects, to the disclosure issues but are more pertinent to the arguments relating to abuse of process.I turn now to those issues. IV. analysis A. Disclosure [22] On this appeal, Mr. Cathcart raised a number of disclosure issues. He says his right to disclosure was breached in the followingways: (

a) he was forced to begin the trial without having his disclosure material present with him in court; and (

b) the Crown failed to disclose relevant material to him, failed to preserve relevant material for disclosure, and removed relevantdisclosure material from his possession so that he could not use it at trial. [23] Before analysing these arguments, it is useful to review the general legal principles relating to disclosure. 1. General principles [24] The Crown has a broad duty to disclose relevant evidence and information in its possession to a person charged with a criminaloffence.

This duty is well established at common law, and is constitutionally entrenched in the right to make full answer and defence underthe Charter: R v Stinchcombe, (SCC), [1991] 3 SCR 326 [Stinchcombe]; R v McNeil, 2009 SCC 3, [2009] 1 SCR 66[McNeil]; R v Dixon, (SCC), [1998] 1 SCR 244 [Dixon]; R v Spackman, 2012 ONCA 905, 295 CCC (3d) 177[Spackman]. [25] The Crown’s disclosure obligation is not absolute, but there are very few exceptions.

The Crown is required to disclose allmaterial in its possession to the defence, except that which is clearly irrelevant, privileged, or for which disclosure is otherwise governedby law: McNeil at para 18; R v Anderson, 2013 SKCA 92, 423 Sask R 61 [Anderson]. Where the Crown refuses to disclose information inits possession on the basis of such an exception, the Crown bears the burden of proving that it fits within the exception: R v Egger, (SCC), [1993] 2 SCR 451 [Egger]; Stinchcombe; Anderson. This burden also applies to irrelevance.

Where the Crown refusesdisclosure on the basis that the requested material is irrelevant, the Crown must demonstrate that it is irrelevant, rather than requiring thedefence to demonstrate relevance: R v Chu, 2016 SKCA 156 at paras 44–46, 344 CCC (3d) 51. [26] The Crown is not required to disclose irrelevant information, but the threshold for relevance is quite low. The duty to discloseis triggered whenever there is a reasonable possibility that the information in the Crown’s possession will be useful to the accused inmaking full answer and defence.

This includes evidence that helps the accused in exploring issues of credibility, properly investigating thecase, and making tactical decisions such as whether to call evidence: R v Chaplin, (SCC), [1995] 1 SCR 727; Egger. [27] The right to disclosure is just one component of full answer and defence. Infringement of the accused’s right to disclosure is notalways a violation of the right to make full answer and defence.

In order to demonstrate constitutional infringement, and thus entitlementto an appropriate and just remedy under the Charter, an accused must generally show that actual prejudice to his or her right to make full

answer and defence resulted from the non-disclosure: R v O’Connor, (SCC), [1995] 4 SCR 411 at para 74 [O’Connor]; Rv Bjelland, 2009 SCC 38 at para 21, [2009] 2 SCR 651 [Bjelland]; Spackman at para 111. 2.

The Crown’s obligation to preserve relevant evidence [28] The Crown has no obligation to create evidence for disclosure, or to disclose that which does not exist, but the disclosureobligation includes a duty to preserve relevant evidence in its possession once it comes into existence. [29] Where an accused establishes on a balance of probabilities that relevant evidence once in the Crown’s possession has been lostor destroyed, the onus shifts to the Crown to provide an explanation for the loss or destruction: R v Berner, 2012 BCCA 466, 329 BCAC275 [Berner].

If the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost through unacceptablenegligence or deliberate malfeasance, the duty to disclose has not been breached. [30] If the explanation offered by the Crown for the loss or destruction of evidence is insufficient to absolve it of unacceptablenegligence or deliberate malfeasance, then a breach of s. 7 of the Charter is established: R v La, (SCC), [1997] 2 SCR680 [La]; Berner.

In such circumstances, there is no additional requirement that the accused establish actual prejudice resulting from theloss of the evidence: R v Carosella, (SCC), [1997] 1 SCR 80 at para 40. [31] In assessing the adequacy of the Crown’s explanation, the court must analyse the circumstances surrounding the loss of theevidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances topreserve the evidence for disclosure.

A key factor in that consideration is the relevance the evidence was perceived to have at the time, asthe police cannot be expected to preserve everything that comes into their hands on the off-chance it will be relevant in the future. Eventhe loss of relevant evidence may not result in a breach of the duty to disclose if the conduct of the police is reasonable.

But the degree ofcare expected in the preservation of evidence will generally be commensurate with its relevance: La at para 21. [32] Where the actions of the Crown or the police in failing to preserve evidence involve conduct that violates those fundamentalprinciples underlying the community’s sense of decency and fair play, the loss or destruction of evidence is an abuse of process andviolates s. 7 of the Charter. This may include, but is not limited to, such actions as deliberate destruction of material for the purpose ofdefeating the disclosure obligation: Berner at para 80.

Abuse of process may also be found in other serious departures from the Crown’sduty to preserve material for disclosure purposes. In some cases, an unacceptable degree of negligent conduct may suffice: La at para 22. [33] Where a breach of s. 7 is established, the question becomes one of remedy.

A stay of proceedings is an exceptional remedy,limited to the clearest of cases, where the prejudice to the accused’s right to make full answer and defence cannot otherwise be remediedor where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were permitted to continue: R vRegan, 2002 SCC 12, [2002] 1 SCR 297 [Regan]; O’Connor; Canada (Minister of Citizenship & Immigration) v Tobiass, (SCC), [1997] 3 SCR 391 [Tobiass]. [34] Irremediable prejudice to the accused’s right to make full answer and defence may result, in extraordinary cases, even wherethe Crown has given an adequate explanation for the loss or destruction of evidence.

This will occur where, notwithstanding the adequacyof the Crown’s explanation, the loss of the evidence in question is so prejudicial to the ability to make full answer and defence that itimpairs the accused’s right to receive a fair trial. In such circumstances, where the accused establishes that the loss or destruction of theevidence has caused actual prejudice to his or her right to make full answer and defence, a stay of proceedings may be the appropriateremedy: La at paras 24–25. 3.

Disclosure issues raised on appeal, rather than at trial [35] In most instances, disclosure issues are dealt with at trial, as that is the most appropriate stage to assess whether a breach hasoccurred and, if so, what remedy is required. Many times, the appropriate remedy will be an adjournment and an order for disclosure:Dixon at para 33. In very limited circumstances, where a failure to provide disclosure amounts to a s. 7 Charter breach, the appropriateremedy may be exclusion of evidence: Bjelland at paras 21–24; Spackman at paras 112–114.

And, where the “clearest of cases” criterionset out in Regan, O’Connor and Tobiass is met, a stay of proceedings may be the appropriate remedy. [36] Disclosure issues are dealt with in a slightly different fashion when raised at the appeal stage.

Where an issue of non-disclosureis raised on a conviction appeal, the appellant must, as a threshold matter, establish that there was a violation of his right to disclosure.This requires persuading the appellate court that there exists (or existed) information which the Crown was obligated, but failed, todisclose: Dixon at para 34. [37] There may be instances where non-disclosed material meets the Stinchcombe standard, but has only marginal value to the issuesat trial: R v Taillefer; R v Duguay, 2003 SCC 70 at para 71, [2003] 3 SCR 307 [Taillefer].

For this reason, when non-disclosure is raised asan issue on an appeal from conviction, the appellant also bears the additional burden of establishing, on a balance of probabilities, that theright to full answer and defence was impaired as a result of the failure to disclose: Dixon at para 34; Taillefer. The accused may dischargethis burden by showing that there is a reasonable possibility that the non-disclosure affected either (

i) the outcome at trial, or (ii) theoverall fairness of the trial process: Dixon at para 34; Taillefer at para 71; R v Illes, 2008 SCC 57 at para 24, [2008] 3 SCR 134 [Illes]. [38] In Illes, the Supreme Court described the application of the test set out in Dixon as follows: [25] With respect to the first prong of the Dixon test, it is important to note that the issue here is not whether the undisclosed evidencewould have made a difference to the trial outcome, but rather whether it could have made a difference.

More precisely, the issue theappellate court must determine is whether there is a reasonable possibility that the additional evidence could have created a reasonabledoubt in the jury’s mind. See R. v. Taillefer, [2003] 3 S.C.R. 307, 2003 SCC 70, at para. 82. … [27] With respect to the second prong of the Dixon test, an appellant need only establish a reasonable possibility that the overall

fairness of the trial process was impaired. This burden can be discharged by showing, for example, that the undisclosed evidence couldhave been used to impeach the credibility of a prosecution witness (see Taillefer, at para. 84), or could have assisted the defence in its pre-trial investigations and preparations, or in its tactical decisions at trial (see R. v.

Skinner, (SCC), [1998] 1 S.C.R. 298, atpara. 12 (Cory J., for the Court)). [39] Assessment of the impact of non-disclosure on the fairness of the trial process also calls for consideration of the diligence – orlack of diligence – on the part of the defence in pursing disclosure.

If the defence was not diligent in pursuing disclosure, or chose not topursue it for tactical reasons, that may weigh against a finding that non-disclosure affected the fairness of the trial process: Dixon at paras36–38. [40] In terms of remedy, once an accused establishes that the Crown’s failure to disclose has impaired the right to make full answerand defence, he or she is entitled to a remedy under s. 24(1). Determining the nature of the remedy requires that the degree of impairmentor prejudice to the accused’s rights be considered in relation to the remedy sought.

To obtain a new trial, the accused need only persuadethe appellate court of the reasonable possibility that the failure to disclose affected either the outcome of the trial or the overall fairness ofthe process: Dixon at para 35; Illes at para 24. [41] To obtain the more drastic remedy of a stay of proceedings, the accused must establish irreparable prejudice to the right tomake full answer and defence: Dixon at para 35.

Stays of proceedings as a remedy for non-disclosure will be limited to those rare caseswhere all other acceptable avenues of protecting the accused’s right to full answer and defence are exhausted, and the prejudice to theaccused’s ability to make full answer and defence is irremediable: O’Connor at paras 77–82. 4. Application to this case a. Starting the trial without Mr. Cathcart having his copy of disclosure material present [42] In this case Mr. Cathcart raised disclosure issues from the outset. When the trial began, the trial judge addressed Mr.

Cathcartregarding his application for disclosure of the police in-car camera system [ICCS] video, which I will discuss shortly. After dealing withthat issue, the trial judge asked if there was anything else that Mr. Cathcart wished to raise regarding disclosure. Mr. Cathcart then advisedthe trial judge that he did not have his disclosure material with him.

He explained that he was being held in custody at the Prince AlbertProvincial Correctional Centre prior to trial and that, when he was transferred to the Saskatoon Correctional Centre for the start of thetrial, he did not initially make arrangements to have his disclosure material sent with him. Mr. Cathcart said that once he arrived inSaskatoon, he had tried to make the necessary arrangements but that the material had not yet arrived. [43] Rather than adjourning proceedings to await the arrival of Mr. Cathcart’s disclosure materials, the trial judge addressed thisissue by suggesting Mr.

Cathcart could access the disclosure material of one of his co-accused, Mr. Caisse, which was located at theSaskatoon Correctional Centre, as long as Mr. Caisse agreed to permit that. Mr. Caisse agreed, and Mr. Cathcart said that would suffice. [44] With that agreement, the trial began. Direct examination of the first Crown witness took up most of the first morning of thetrial. After a lunch break, the trial judge asked Mr. Cathcart if he had obtained the USB drive containing the disclosure. When Mr.Cathcart said he had not, the trial judge attempted to find out what Mr.

Cathcart required from the disclosure material. Mr. Cathcartindicated that he wished to be able to cross examine Ms. Wedawin, who was testifying that day, about certain things she said in the video-recorded statement she had provided. [45] The trial judge addressed the matter by saying that Mr. Cathcart could simply use the Crown’s copy of the video recordedstatement for his cross-examination. The Crown agreed to this procedure and, once again, Mr. Cathcart indicated that would suffice. [46] Once the Crown completed its examination-in-chief of Ms. Wedawin, Mr. Caisse’s lawyer cross-examined her. Mr.

Cathcartthen conducted an extensive cross-examination, which included referring Ms. Wedawin to, and confronting her with, various portions ofher video statement and her testimony at the preliminary inquiry. [47] After Mr. Cathcart completed his cross-examination of Ms. Wedawin, there was brief re-examination by the Crown, followingwhich court was adjourned for the day. The next morning, when court reconvened, Mr. Cathcart confirmed that he was ready to continuewith the trial. [48] Mr.

Cathcart argues the trial was not fair because he was forced to begin without his disclosure material or the notes he hadprepared while reviewing it. He says this led to him being unable to effectively cross-examine Crown witnesses. With respect, I cannotgive effect to this argument. [49] When the issue was raised at the outset, one option available to the trial judge would have been to adjourn the trial to makesure that Mr. Cathcart had all of his disclosure material and notes available to him, but there was no requirement that he do so, in thecircumstances of this case. Mr.

Cathcart advised the trial judge that he had all the disclosure material (except for the three minutes ofICCS video that he requested) in his possession prior to the trial. Mr. Cathcart’s description of the material and the way in which heconducted his cross-examination showed that he had a good understanding of what was in the disclosure. The trial judge made efforts toensure that Mr.

Cathcart would have access to necessary material while in court, and that he would be able to use the disclosure material toassist in his cross-examination. [50] Furthermore, I see no evidence that there was any unfairness created by Mr. Cathcart not being in possession of the materialduring the trial. First, Mr. Cathcart agreed to proceed in that fashion. Second, it is apparent from the record that he was well versed inwhat the material contained.

He was able to conduct thorough cross-examinations, which included referring witnesses to specific portionsof statements and recordings, confronting them with apparent contradictions, and drawing out portions that he thought were relevant. Inshort, I am not satisfied that Mr. Cathcart’s ability to defend the charges was adversely affected by the fashion in which the trial judgedealt with this issue.

b. The failure to disclose relevant material, preserve relevant material, or permit Mr. Cathcart to remain in possession of relevant material [ 51 ] During the hearing of the appeal, Mr. Cathcart acknowledged that by January of 2018, well before the trial began, he was in possession of all the relevant disclosure, with the exception of four items: (

i) three minutes of ICCS video recording from one of the police cars involved in pursuit of Mr. Cathcart’s vehicle at the time of the incident; (ii) eleven minutes of audio recordings from the body microphone worn by Sgt. Aaron Moser at the time of the incident; (iii) the video/audio recording of the front service area of the Saskatoon Police Service station [service area recording], during the time that the complainants were present prior to providing formal statements to the police; and (iv) a USB storage device, which contained disclosure material relating to charges Mr.

Cathcart had faced in relation to a previous incident (Mr. Cathcart referred to these as the “Provincial Court charges”). [ 52 ] Mr. Cathcart argues that the Crown failed to disclose – or failed to preserve for disclosure – the first three items, and that this failure amounts to a breach of his right to make full answer and defence. [ 53 ] With respect the fourth item, namely the USB storage device containing disclosure material relating to the Provincial Court charges [PC disclosure], Mr. Cathcart says this item was in his possession while he was remanded to the Prince Albert Correctional Centre.

He intended to use it, he says, in the defence of the Queen’s Bench charges because it contained information that would assist him in challenging the credibility of various police witnesses. He says the Crown, knowing this, ordered a Provincial Correctional Centre employee to remove the USB device from his possession, without his consent, and that it was not returned. [ 54 ] Mr. Cathcart argues that the removal of the PC disclosure from his possession, in these circumstances, amounts to both a breach of his right to make full answer and defence and an abuse of process. In light of all this, Mr.

Cathcart argues that the appropriate remedy is a stay of proceedings. i. The missing three minutes of ICCS video [ 55 ] Mr. Cathcart raised the issue with respect to the ICCS video at the outset, when the trial judge sought clarification of an application that Mr. Cathcart had filed. In that application, Mr. Cathcart alleged that the Crown failed to disclose three minutes of video from an ICCS in the police car driven by Cst. Andrew Dubnyk. The three minutes in question were part of the time frame shortly before the police stopped Mr. Cathcart’s vehicle.

The prosecutor advised that no video of the time frame of interest to Mr. Cathcart had ever existed. The trial judge, accepting that answer, then advised Mr. Cathcart he could not order disclosure of something that did not exist, but explained that Mr. Cathcart would have the opportunity to cross-examine Cst. Dubnyk, and to probe the issue of why that portion of the pursuit was not recorded. [ 56 ] Mr. Cathcart also accepted that response. [ 57 ] When Cst. Dubnyk testified, he said that, in this instance, the ICCS was activated automatically when he engaged his emergency lights.

It produced a retrievable recording of the video information the camera captured, beginning at a point 30 seconds prior to automatic activation, and continuing until the recording was manually stopped. [ 58 ] As I understand Mr. Cathcart’s argument, the portion of the ICCS recording he says was not disclosed was the period during which Cst. Dubnyk was pursuing his vehicle before engaging the emergency lights on the police car. According to Cst. Dubnyk’s testimony, the ICCS would not have created a video recording during that time frame.

To put that another way, based on the evidence before the trial judge, the material which Mr. Cathcart alleges that the Crown failed to disclose had never existed. As such, the trial judge made no error in failing to find a breach of the Crown’s disclosure obligations in relation to this item. ii. The missing 11 minutes of Sgt. Moser’s body microphone recording [ 59 ] Mr. Cathcart alleges that the Crown failed to disclose 11 minutes of audio recording from a body microphone worn by Sgt. Moser. The 11-minute period in question was time Sgt.

Moser had spent in the presence of the complainants in the front service area of the Saskatoon Police Service Headquarters, prior to the complainants providing formal statements. [ 60 ] The Crown points out that Mr. Cathcart had the opportunity to address this issue before the trial judge, and failed to do so. Mr. Cathcart cross-examined Sgt. Moser, and asked him nothing about what may have been recorded on his body microphone. The Crown also says that Sgt.

Moser had little, if any, contact with the complainants at the relevant times, and there was no other evidence to suggest that the body microphone recording would have had any probative value. [ 61 ] Mr. Cathcart did not raise this argument at trial. Accordingly, it falls to be assessed by applying the Dixon test. In that regard, he must first establish that there was a violation of his right to receive disclosure.

That requires evidence from which this Court can conclude there was actually material in existence which the Crown was obligated, and failed, to disclose. [ 62 ] In this case, there was no such evidence. Mr. Cathcart questioned Sgt. Moser about the body microphone at trial. This was the extent of that questioning: Q Sergeant Moser, are you aware that you were equipped with a microphone that night; is that correct? A That’s correct.

[ 63 ] Sergeant Moser confirmed that he was equipped with a microphone that night; Mr. Cathcart did not pursue the line of questioning any further. [ 64 ] The only other mention in the evidence of Sgt. Moser’s body microphone occurred during Mr. Cathcart’s cross-examination of Cst. Cole Janett. It went as follows: Q All right, Constable.

I assume you’re aware that everything in the back of your patrol car is audio and video recorded, and that the audio recording equipment is quite capable of recording the contents of conversations directly outside of your patrol car, if the door were to be opened, or a window were to be rolled down, would you agree? A I would agree, as well as we wear body worn microphones, which would record conversations like that. Q Were you wearing one this night? A I can’t recall. Sometimes they aren’t available. I can’t recall if I had one on during this occurrence or not. … Q All right, Constable.

Are you aware of the fact that Sergeant Moser was equipped with a body microphone? A Possibly. Again, he’s in the same situation as I am, as where they are available at times, and other times not. [ 65 ] These are the only references in the evidence to a body microphone worn by Sgt. Moser. There was no evidence as to whether or not the microphone was in use at the relevant time, or whether any recording of the 11-minute time frame Mr. Cathcart now refers to was ever made. [ 66 ] Even if I were to consider Mr.

Cathcart’s written material on this appeal as fresh evidence, there is nothing from which I would be able to conclude that the portion of the recording he alleges was not disclosed ever existed, as his material contains nothing more than speculation on that point. [ 67 ] Accordingly, Mr. Cathcart has not met the threshold requirement to establish that there was a breach of the Crown’s disclosure obligation as it relates to this item. iii. The service area recording [ 68 ] Mr. Cathcart argues the Crown failed to disclose or preserve the service area recording for the purposes of disclosure.

The service area recording pertains to the period during which the complainants were present in that area with various police officers as they waited to give formal statements. Mr. Cathcart says the service area recording is relevant because it would have captured conversations between the complainants and the officers and recorded their interactions as the complainants wrote out their statements and prepared to be interviewed. Mr.

Cathcart argues that, given the way in which the versions of events provided by the complainants evolved from their first interaction with police at the scene of the vehicle stop to the final version given in their formal statements, having the opportunity to view and listen to the service area recording was important to his defence. He says it would have assisted him in cross-examining the complainants and the officers involved, identifying inconsistencies and contradictions in their evidence, and drawing those matters to the attention of the trial judge.

It was vital, he says, to his ability to challenge the credibility and reliability of the Crown’s witnesses. Without it, argues Mr. Cathcart, the fairness of his trial was affected, because his ability to mount a full defence was compromised. [ 69 ] Mr. Cathcart raised the issue of the Crown’s failure to preserve and disclose the service area recording for the purposes of disclosure near the end of the trial, after the Crown had closed its case, and the trial judge was about to put him to his decision as to whether he would call evidence. At that point in the trial, this exchange took place: THE COURT: All right.

Mr. Cathcart, you’ve come to a decision about whether or not you wish to call evidence? THE ACCUSED CATHCART: Yes, Your Honour. Back on October 3rd, 2017, I’d submitted an application for additional disclosure, right? And in that application, I’d been requesting the Saskatoon Police to release audio and visual of the detention recordings of both alleged victims while they were in the police custody for four hours before conducting the video statements.

I was given -- I was told by the Crown that the videos that I requested are recorded over after ten days, and at 17 months later, the Crown was able to pull up videos overnight in the detention area. And I also have an application here, Your Honour. THE COURT: I’m sorry, back-up. So what -- are you saying you didn’t get the videos? Because I understood that the videos -- THE ACCUSED CATHCART: No, I did not. THE COURT: -- hold on. I understood that the videos that were available, you received?

THE ACCUSED CATHCART: Yes, these are the videos from the detention where the victims would have been in the front service area, right? THE COURT: Okay, go on. THE ACCUSED CATHCART: And, like I said, essentially I had asked the Crown to provide with this. And I was only -- I was given a -- how do I say this? I was told that I’d received everything that the Crown has, right? And I know, under right of accused, I have the right to examine everything that the Crown has, right?

But in all honesty, I believe that goal is toward the fairness of a trial that, if I can -- if I was able to prove that these victims were in police custody with -- you know? They -- one of them testified -- one of the victims -- complainants testified that they were sitting quite close to each other while filling out their statements, and that they had not talked or nothing. But I don’t have anything to suggest that they did not talk, they did not speak. Because the in-car recordings, from the when the

two -- two complainants were in the back of the police car, those version of events are different from the version of events that they put on their statement while in the front service area with this constable, right? And if I were to have those, that would -- I believe that would satisfy the reasoning behind the request for that, to simply prove, like whether or not they were there by themselves with this officer, or if there were other officers present, because the constable already testified that the part of the police station they were in was closed due to hours of operation.

So -- and I’d -- while we’re still on that, that is, yeah, that’s basically what I’m saying is in regards to that, that I had filed this application back in October, right? And I was told that the video is recorded over after ten days, the part that I was requesting, right? But it’s clear that we were given -- the officer testified, Detective Kiesman, said we have 800 days to secure videos, right? So I’m not sure how the -- THE COURT: Well, okay, on that -- that video, Mr. Bliss, what’s the situation from the Crown’s perspective? MR.

BLISS: The video that he’s talking about does not exist, because there are different retention periods for different areas of the police station, and that was what was pointed out to him back in -- if his application was on October 23rd, that was pointed out at the -- the pretrial soon thereafter. I wanted to find my notes of that. But there are different retention periods for different areas of the police station. And so, his request for the victims that were not in detention, but were in some other area, was recorded over quite quickly and was not available when he requested it. THE COURT: Okay.

So -- and that -- that’s what the Crown says in relation to this one, that it doesn’t exist. What other -- and I’m -- and I’m not ruling anything yet. I want to know what else you want to deal with, or if you want to call evidence. We’re talking about now, is calling evidence. And, it sounds like -- THE ACCUSED CATHCART: Yes. THE COURT: -- it sounds like what did you want to do, you wanted to file that interview -- or not interview, you wanted to file the four hours of them in detention witness area, so that I could look at that, and -- and -- or you could look at that, I’m -- I’m not sure.

THE ACCUSED CATHCART: Yes, because -- like I said, their initial verbal statement with the officer that’s recorded in the vehicle, is different from their events that they give on their written statement and in their video statement with Detective Kiesman, right? THE COURT: When they were on the stand, you had the opportunity to question them about what they said. THE ACCUSED CATHCART: And they don’t recall, Your Honour, so it’s kind of -- THE COURT: Right. THE ACCUSED CATHCART: -- not one consistent thing throughout the trial, right? … [ 70 ] In this discussion, Mr.

Cathcart was clearly raising a disclosure issue. He advised the trial judge that he made a request for disclosure of the service area recording.

From the way it was described, that recording was something that appeared to meet the Stinchcombe standard for relevance, because it recorded audio and video of the complainants, in the presence of police officers, while the investigation was ongoing, and shortly before they provided formal statements. [ 71 ] The Crown acknowledged that the service area recording was made and had been in the possession of the police at one time, but was not retained; it had been overwritten. [ 72 ] The trial judge, by saying “I’m not ruling anything yet”, appeared to acknowledge that Mr.

Cathcart had raised a point that would require a ruling. No such ruling was made, however, and the trial judge never returned to the issue. Instead, he continued on, putting Mr. Cathcart to his decision as to whether or not to call evidence. Mr. Cathcart advised the trial judge of the evidence that he wished to have entered as part of his defence, and closed his case.

The disclosure issue with respect to the service area recording was never resolved. [ 73 ] As I will discuss, the failure by the trial judge to adequately deal with this disclosure issue was an error that requires a new trial be ordered. [ 74 ] On this point, the Crown notes that Mr. Cathcart did not mention the non-disclosure of the service area recording at the start of the trial, when he raised the issue regarding the ICCS recording. After dealing with the ICCS issue, the trial judge asked Mr. Cathcart if he wanted to deal with anything else, and Mr.

Cathcart raised only the concern with respect to his disclosure material not being present with him at court; he said nothing about his concern regarding the service area recording. Nor did Mr. Cathcart raise the issue during the trial when he attempted to cross-examine various witnesses about what occurred during the period that would have been recorded on the service area recording. He did not raise the issue until after the Crown had closed its case. [ 75 ] In light of all this, the Crown argues that Mr.

Cathcart was not diligent in pursuing disclosure and, as such, this Court should conclude that any non-disclosure did not have an impact on the fairness of the trial, especially in light of the fact that Mr. Cathcart had the opportunity to cross-examine all of the witnesses who were present during the relevant time about what they may have done or discussed. With respect, I cannot accept the Crown’s argument in the circumstances of this case. [ 76 ] In part, this is because Mr.

Cathcart’s diligence, or lack thereof, in raising and pursuing this disclosure issue must be considered in light of the fact that he represented himself at trial. While it is clear that an accused who decides to proceed without the assistance of a lawyer cannot, after the fact, attack a conviction on the basis that he or she did not have representation as effective as what might have been provided by counsel, a trial judge has an obligation to ensure that a trial is fair and that there is no miscarriage of justice: R v Harris , 2009 SKCA 96 , 331 Sask R 283 [ Harris ].

Part of a trial judge’s duty in that respect is to render some assistance to those who are self- represented so that defences available to such individuals are presented with full force and effect: R v Bialski , 2018 SKCA 71 at para 65 , 364 CCC (3d) 485 [ Bialski ]; R v Candido , 2015 SKCA 104 at para 13 , 467 Sask R 128. [ 77 ] Deciding how much assistance a judge should give to a self-represented accused person is an exercise in discretion. A trial

judge is not counsel for the accused, and cannot provide assistance of the sort that counsel would furnish, but there is a duty is to ensure that the accused has a fair trial. This duty is circumscribed by a standard of reasonableness: R v Richards , 2017 ONCA 424 , 349 CCC (3d) 284 [ Richards ]. What this standard requires from a trial judge will vary from case to case.

It will depend on the dynamics of the trial in question, the circumstances of the particular accused, and the nature of the charges: Harris at para 29 . [ 78 ] A trial judge’s exercise of discretion in deciding how much assistance is necessary to a self-represented person is entitled to deference on appeal. The appeal court will only intervene if the trial judge proceeded on a wrong principle, or if a miscarriage of justice resulted. There will be a miscarriage of justice if trial fairness is compromised: R v Wyatt , 2018 BCCA 162 . [ 79 ] In this case, Mr.

Cathcart raised a potential Charter issue for the trial judge to consider. On its face, the service area recording appeared to be something containing relevant information that could assist Mr. Cathcart in cross-examining witnesses and challenging the credibility and reliability of their evidence. It could also have assisted him in making other strategic decisions about his defence. A failure to disclose that evidence (or failure to preserve it for disclosure) was potentially a violation of Mr. Cathcart’s rights under s. 7 of the Charter. [ 80 ] It is true that Mr.

Cathcart did not give notice, prior to trial, of his intention to bring a Charter application but, as was noted in Bialski , the absence of such a notice is not necessarily fatal. Mr. Cathcart had clearly raised an issue of importance to his defence, and one which involved a potential breach of his Charter rights. In the circumstances, the trial judge was obligated to provide some assistance to ensure that the issue was properly dealt with. If this required an adjournment to allow Mr.

Cathcart the opportunity to make a formal application and give proper notice, and to permit the Crown to respond, then an adjournment should have been granted. [ 81 ] Furthermore, the Crown did not dispute the relevance of the service area recording. Crown counsel answered Mr. Cathcart’s assertion about non-disclosure by saying that the service area recording, although it once existed, was no longer available to be disclosed because it had been overwritten ten days after it was made. In the circumstances, the trial judge was required to dig deeper. Mr.

Cathcart had identified relevant material, which the Crown had not preserved for disclosure purposes. There was, therefore, evidence of a potential breach of Mr. Cathcart’s rights under s. 7 of the Charter . Whether or not a breach could have been established would have required the trial judge to consider the adequacy of the Crown’s explanation for the loss or destruction of the evidence, and also whether or not Mr. Cathcart’s ability to make full answer and defence was prejudiced. In the circumstances, the trial judge had an obligation to provide reasonable assistance to Mr.

Cathcart to raise the issue, invite full submissions and inquire into whether there was a breach. The failure to do so was an error. [ 82 ] The trial judge’s responses to Mr. Cathcart’s submissions – inviting the Crown to explain its position with respect to the existence of the service area recording, inquiring as to how Mr. Cathcart intended to use it, and commenting on the fact that Mr. Cathcart had questioned witnesses about the conversations that may have been captured on the recording – reflect that he was aware Mr. Cathcart had raised a potentially important issue.

As noted above, by saying that he was “not ruling anything yet”, the trial judge also recognized that the issue required a ruling. However, instead of making a ruling, the trial judge brushed past the issue, and never returned to deal with it. The failure to make a ruling was, in my view, also an error. [ 83 ] All of that said, not every error requires that a new trial be ordered. Some errors – for instance ones that do not lead to an unreasonable verdict, a wrong decision on a question of law or a miscarriage of justice – have no legal effect: R v Jaw , 2009 SCC 42 at para 29 , [2009] 3 SCR 26.

In such circumstances, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code may permit a conviction to be sustained despite the error. The curative proviso reads as follows: Powers 686

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal … (

b) may dismiss the appeal where … (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred[.] [ 84 ] Resort to the curative proviso to uphold a conviction will be relatively rare; it can only be used where a wrong decision on a question of law has not resulted in a substantial wrong or miscarriage of justice.

The Crown bears the burden of showing the appellate court that the provision is applicable, and satisfying the court that the conviction should stand, notwithstanding the error. To do so, the Crown must establish that the error falls into one of two categories: (

i) an error so harmless, or of such a minor nature that it could not have had an impact on the verdict; or (ii) an error which has prejudiced the accused and would justify a new trial but where, nonetheless, the evidence overall is so overwhelming that a conviction would have been inevitable: R v Van , 2009 SCC 22 at para 34 , [2009] 1 SCR 716; R v Anderson , 2019 SKCA 27 at para 36 , 53 CR (7th) 51; R v Montague-Mitchell , 2018 SKCA 78 at para 40 , 368 CCC (3d) 322. [ 85 ] As to the scope of the two categories of errors to which the curative proviso applies, in R v Trotchie , 2019 SKCA 43 , Ottenbreit J.A. wrote: [71] In R v Van , 2009 SCC 22 , [2009] 1 SCR 716 , LeBel J. explained what constitutes the first category of errors caught by the proviso, i.e., those which are harmless or minor: [35] ...

The question of whether an error or its effect is minor should be answered without reference to the strength of the other evidence presented at trial. The overriding question is whether the error on its face or in its effect was so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could not possibly have rendered a different verdict if the error had not been made.

[72] With respect to the second category of errors, the Court in R v Trochym , 2007 SCC 6 , [2007] 1 SCR 239, stated: [82] The instant case is one that falls squarely within the second category of serious errors that will justify a new trial unless the properly adduced evidence is so overwhelming that a conviction is inevitable, or would invariably result. This standard should not be equated with the ordinary standard in a criminal trial of proof beyond a reasonable doubt. The application of the proviso to serious errors reflects a higher standard appropriate to appellate review.

The standard applied by an appellate court, namely that the evidence against an accused is so overwhelming that conviction is inevitable or would invariably result, is a substantially higher one than the requirement that the Crown prove its case “beyond a reasonable doubt” at trial.

This higher standard reflects the fact that it is difficult for an appellate court, in particular when considering a jury trial, since no detailed findings of fact will have been made, to consider retroactively the effect that, for example, excluding certain evidence could reasonably have had on the outcome. [ 86 ] Where a reviewing court concludes, however, that a legal error led to a denial of a fair trial, there has been a miscarriage of justice to which no remedial provision applies: R v Khan , 2001 SCC 86 , [2001] 3 SCR 823. [ 87 ] In my view, the curative proviso cannot be applied in this case.

The errors I have identified related to a failure by the trial judge to properly address an issue Mr. Cathcart raised with respect to whether the Crown had breached its disclosure obligations. By failing to fully hear and rule on this issue, the trial judge precluded the possibility of Mr. Cathcart seeking a remedy under s. 24(1) of the Charter if he had succeeded in establishing a violation of his s. 7 rights. [ 88 ] If Mr. Cathcart had been able to establish a Charter violation, the trial judge would have been required to fashion an appropriate and just remedy.

Such a remedy could have ranged from a mere adjournment, to permitting Mr. Cathcart to recall witnesses for further cross-examination, or even more extreme measures such as exclusion of evidence or a stay of proceedings, depending on the pertinence of the evidence, the damage done to Mr. Cathcart’s ability to defend the charges as a result of the non-disclosure, and the conduct of the Crown in failing to preserve the evidence. On the other hand, the Crown may well have had an adequate explanation for the loss of the evidence in question, and Mr. Cathcart may not have succeeded in demonstrating a breach.

But it is not possible to determine that on the basis of the evidentiary record from the trial. [ 89 ] Moreover, even though Mr. Cathcart had the opportunity to cross-examine each of the complainants and the police officers whose activities would have been captured by the service area recording, and they were all consistent in saying there was no conversation between the complainants during the time they prepared their written statements, I am unable to determine that lack of access to the service area recording did not prejudice Mr. Cathcart’s defence.

It must be remembered that credibility was the main issue at trial. Mr. Cathcart raised an issue with respect to disclosure, and argued his ability to challenge the complainants’ credibility was prejudiced because a recording that could have assisted him in cross-examining the complainants and/or impeaching their credibility was not preserved for disclosure purposes. The trial judge failed in his duty to provide reasonable assistance to Mr. Cathcart, as a self-represented accused, in making the necessary application once the issue became apparent.

The trial judge also failed to rule on the issue once it had been raised. In my view, those errors affected the fairness of Mr. Cathcart’s trial. As such, there was a miscarriage of justice, and the curative proviso cannot be applied. [ 90 ] In the result, a new trial must be ordered. iv. The USB storage device containing disclosure material relating to Mr. Cathcart’s Provincial Court charges [ 91 ] In the written material filed in support of his appeal, and in his oral submissions, Mr.

Cathcart alleges that, while he was in custody awaiting trial on his Queen’s Bench charges, he had in his possession a USB device containing the PC disclosure. Even though the Provincial Court charges were not directly related to the Queen’s Bench charges, Mr. Cathcart says the PC disclosure was relevant. He alleges that the Crown intentionally and wrongfully removed this material from his possession without his knowledge or consent. He argues that this amounts to not only a violation of his right to receive disclosure, but an abuse of process. He says the appropriate remedy is a stay of proceedings. [ 92 ] Mr.

Cathcart says that, during a pretrial conference in relation to the Queen’s Bench charges, he made the judge aware that he had disclosure with respect to both sets of charges in his possession. The Provincial Court charges had already been concluded by this point. The discussion regarding disclosure occurred after Mr. Cathcart advised Crown counsel that he was unable to access the files on the USB drive pertaining to the Queen’s Bench charges, because the digital files were corrupted.

He says Crown counsel requested that he return the USB drive relating to the Queen’s Bench charges so that a functional copy could be provided. Mr. Cathcart agreed to do that. Crown counsel, says Mr. Cathcart, also requested that he return the PC disclosure. Mr. Cathcart says he advised Crown counsel that he would not agree to do so, because the PC disclosure was relevant to the Queen’s Bench charges.

He took the position that some police officers were involved in the investigation of both sets of charges, and he intended to use the PC disclosure in the defence of the Queen’s Bench charges because, he said, it would prove that the officers were involved in “fabricating” evidence against him. [ 93 ] Mr. Cathcart says that, after this discussion at the pretrial conference, someone from the Crown’s office contacted the Prince Albert Correctional Centre, where Mr. Cathcart was being held, and requested return of both USB drives. Mr.

Cathcart says he had a discussion with Crown counsel and a correctional officer in which he explained his reason for wanting to retain the USB drive containing the PC disclosure, and restated his objection to returning it to the Crown. Two days later, he says, he learned that in spite of his clear request, the PC disclosure material was sent back to the Crown, and never returned to him. [ 94 ] The argument Mr.

Cathcart makes in relation to this item raises the possibility of something that may be a mere disclosure breach, or the possibility of something more ominous, namely, the deliberate removal of disclosure material to prevent him from being able to shed light on police misconduct. [ 95 ] The Crown counters by arguing that Mr. Cathcart has failed to demonstrate the PC disclosure contained anything of relevance. The Crown also notes that, despite the serious nature of Mr. Cathcart’s allegation, he failed to raise the issue before the trial judge. The trial judge addressed Mr.

Cathcart prior to the trial beginning, to see if he was ready to proceed. Mr. Cathcart raised an issue about not having brought his disclosure material with him but told the trial judge that he was otherwise ready for trial. The Crown points out that, even though the events about which Mr. Cathcart now complains all occurred before the trial began, he said nothing about the alleged

actions of Crown counsel or the missing disclosure material related to the Provincial Court charges when given the opportunity. As such,argues the Crown, even if Mr. Cathcart was able to establish that the PC disclosure was taken from him under the circumstances healleges, he has failed to demonstrate that he was diligent in pursuing it.

As such, the Crown asserts that no remedy is warranted. [96] In light of the fact that I have determined a new trial must be ordered because of the trial judge’s errors in dealing with Mr.Cathcart’s application with respect to the non-preservation of the service area recording, it is not necessary that I address his argumentwith respect to the PC disclosure. [97] Moreover, Mr. Cathcart’s written materials provided few details about the nature of what the PC disclosure contained, apartfrom making vague references to improper conduct by unspecified police officers.

Even if this material was accepted as fresh evidence, itwould not provide an adequate evidentiary basis to determine whether there was anything relevant to the Queen’s Bench charges in the PCdisclosure material, such that removal of it from Mr. Cathcart’s possession amounted to a breach of the Crown’s disclosure obligations.Nor would it provide an adequate evidentiary basis to determine the question of appropriate remedy, should a breach be established. [98] As such, this is an issue best left for trial, where it can be argued and determined on the basis of a proper evidentiary record. B.

Abuse of process – general course of improper conduct by police andCrown [99] At trial, Mr. Cathcart did not raise the issue of abuse of process, even though the conduct of which he accuses the policeofficers and prosecutors all occurred – and was something of which he would have been aware – before the trial began. [100] As a general rule, an issue not raised at trial cannot be raised for the first time on appeal: Perka v The Queen, (SCC), [1984] 2 SCR 232; R v Warsing, (SCC), [1998] 3 SCR 579.

This general rule is “preclusive but not unyielding”:R v Reid, 2016 ONCA 524 at para 38, 338 CCC (3d) 47 [Reid] (leave to appeal to SCC denied ). [101] In R v Ahmed, 2019 SKCA 47, Barrington-Foote J.A. described the discretionary nature of the decision whether to permit a newargument on appeal, and the criteria to be applied in exercising that discretion. In that regard, he wrote: [15] … As a rule, an issue not raised at trial cannot be raised for the first time on appeal.

There are, however, exceptions to this rule.The decision as to whether to entertain a new argument on appeal is discretionary and is “to be guided by the balancing of the interests ofjustice as they affect all parties” (Kaiman v Graham, 2009 ONCA 77 at para 18, 245 OAC 130): see also R v Reid, 2016 ONCA 524 atpara 44, 338 CCC (3d) 47 [Reid] (leave to appeal to the SCC denied ). In R v Gill, 2018 BCCA 144, 26 MVR (7th) 138,Fitch J.A. usefully summarized the issue as follows: [12] In Quan v.

Cusson, 2009 SCC 62 at paras. 36–38, the majority of the Court laid out a framework for determining whether topermit a party to raise a new issue on appeal. The first question is whether the issue is new. If so, the second question is whether theevidentiary record and the interests of justice support granting an exception to the general rule against raising new issues on appeal.

Indetermining whether the interests of justice warrant an exception to the general rule, it is appropriate to consider whether entertaining theissue for the first time on appeal might lead to a different ultimate outcome for the parties: L.S. v. G.S. at para. 112. As Binnie J. said inPerformance Industries Ltd. v.

Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19 at para. 33, a court may hear a new issue on appeal ifrefusing leave would risk an injustice. [16] There is authority for the proposition that a failure to raise the proposed new issue at trial for tactical reasons should weighheavily in the interests of justice analysis, against the party who seeks to change course on appeal: R v Brown, (SCC),[1993] 2 SCR 918 at 927 per L’Heureux (Dubé J. dissenting, but not on this point); Reid at para 43; R v Dignard, 2017 MBCA 123 at para7; and R v Downey, 2015 NBCA 25 at para 12, 435 NBR (2d) 315. [102] In Reid at para 42, Watt J.A. wrote: [42] The burden is on the party who seeks to raise the new issue on appeal to bring the argument to be advanced within theexception to the general prohibition.

It is incumbent on that party to demonstrate that all the facts necessary to address the proposed issueare as fully before the appellate court as they would have been had the issue been argued at trial: Kaiman, at para. 18. As the evidentiarydisputes generated by the materials first filed on appeal mount, the likelihood that an appellate court will hear the argument diminishes:Roach, at paras. 7-8. [103] I agree with the description of the onus set out in Reid. That is, Mr.

Cathcart bears the burden of establishing that this Courtshould depart from the general rule and consider his new argument relating to abuse of process. In my view, Mr. Cathcart has not met theonus. [104] I say that because, in the circumstances of this case, neither the evidentiary record nor the interests of justice support granting anexception to the rule against raising new arguments on appeal. There is no evidentiary basis in the trial record alone to support Mr.Cathcart’s claim of abuse of process. As for Mr.

Cathcart’s application to adduce fresh evidence, his material contains little more thanbare allegations of improper conduct on the part of the police, and a reference to the removal from his possession of disclosure materialrelating to a separate set of charges, the relevance of which is not clear. In addition, I have determined there must be a new trial because ofthe errors previously identified. At that trial, Mr. Cathcart will have the opportunity to make an application relating to abuse of process, ifhe chooses, and adduce the necessary evidence to have the issue determined on the basis of a proper record.

In light of that, there is no riskthat an injustice will result from the refusal to entertain this issue on appeal. [105] Given that conclusion, it is not necessary to delve further into Mr. Cathcart’s application to adduce fresh evidence. V. Conclusion

[ 106 ] Mr. Cathcart’s appeal is allowed. His convictions are set aside. A new trial is ordered. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Kalmakoff J.A.” for Richards C.J.S. per authorization I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.