Courts Martial
Decision Information
Summary:
Date of commencement of the trial: 5 April 2004.
Location: CFB Gagetown, building F-1, Oromocto, NB.
Charges:
• Charges 1, 2, 3, 4, 5, 6, 7, 8: S. 130 NDA, trafficking in substance (s. 5 CDSA).
Results:
• FINDINGS: Charges 1, 2, 3, 4, 5, 6, 7, 8: A stay of proceedings.
Decision Content
Page 1 of 19 Citation: R. v. Private S.C. Bianca, 2003 CM 54 Docket: C200354 STANDING COURT MARTIAL CANADA NEW BRUNSWICK CANADIAN FORCES SCHOOL OF MILITARY ENGINEERING Date: 9 April 2004 PRESIDING: LIEUTENANT-COLONEL M. DUTIL, M.J. HER MAJESTY THE QUEEN v. PRIVATE BIANCA (Accused) DECISION FURTHER TO THE APPLICATION BY THE ACCUSED THAT THE PROSECUTION VIOLATED HIS RIGHTS UNDER THE CHARTER (S. 7 AND 24(1)) FOR THE FAILURE TO MEET ITS OBLIGATION TO DISCLOSE AND THEREBY AFFECTING THE RIGHT TO MAKE FULL ANSWER AND DE-FENCE (Rendered orally) [1] The defence has made an application in which it seeks an order from this court to stay the proceedings before this court under section 24(1) of the Charter for an alleged violation by the prosecution of its obligation to disclose under section 7 and 11(d) of the Charter. [2] The defence submits that the prosecution's violation of its duty, of its duty to disclose and the manner in which the violation occurred affected the right of the defence for full answer and defence, and that the circumstances of this case fall within what has been referred by the Supreme Court of Canada as those clearest of cases, and therefore, the extraordinary remedy in the nature of a judicial stay of proceedings is the only appropriate remedy that is available to this court.
Page 2 of 19 [3] The following evidence is before the court with respect to this application. Firstly, the testimony of Master Seaman MacDonald heard so far in the main trial, and his evidence was rolled in the voir dire, and the testimony of Sergeant Hillier who was called by the prosecution during this voir dire. Master Seaman MacDonald was the undercover police officer involved with the accused during the alleged incidents that form the basis of the charges before the court where Sergeant Hillier was the lead investigator during that police investigation. [4] Secondly, the evidence consists of a variety of documents filed by counsel on consent and these documents are the following: VD1-1. A letter from the Deputy Director of Military Prosecutions dated 19 November 2003 entitled "Preferral of Charges B80 476 522 Private Bianca" addressed to various persons including the court martial administrator and Lieutenant-Colonel D.T. Sweet, the defence counsel in this case; VD1-2, which consists in an exchange of email between Lieutenant-Colonel Sweet and Lieutenant-Commander Deschênes with regard to trial dates and disclosure issues; VD1-3, which is an uncertified copy of a draft transcript concerning the preliminary proceedings that were held, in this case, on 12 January 2004 and during which Lieutenant-Commander Deschênes, Lieutenant-Colonel Sweet, and myself were present through videoconference. This preliminary proceeding dealt with the issue of setting a new trial date and disclosure; VD1-4. A letter of appreciation addressed to Ex-Private Charles Cavan. This letter is signed by Captain B.D. Frei, Officer Commanding the Canadian Forces National Investigation Service and is dated 18 September 2003. This document was disclosed to the defence on 5 or 6 April 2004; that is, after the beginning of this trial; VD1-5. A form entitled "Release of Liability" which is dated 21 January 2003 and signed by Mr. Charles Cavan. This document consists also in the additional disclosure provided to the defence on 5 or 6 April 2004; that is, after the trial had commenced; VD1-6, which is a copy of an extract of the notes of Master Seaman Mac-Donald with regard to this case with blacked-out portions which was disclosed to the defence as part of the original disclosure in late November 2003;
Page 3 of 19 VD1-7 is a copy of the same notes except that the blacked-out portions have been revealed and highlighted with a yellow marker. This document was disclosed to the defence after the beginning of this trial; that is, on 5 April 2004; VD1-8 is a six-page document which represents a copy of the police notes of then Master Corporal, now Sergeant Hillier with blacked-out portions which was part of the initial disclosure package provided to the defence as in VD1-9; VD1-9. It is the same document as VD1-8 but with the addition of the material that had been blacked-out. The portions of those notes newly revealed are highlighted as well with a yellow marker, and these notes were disclosed to the defence after the beginning of this trial and more precisely after the first witness called by the prosecution in the main trial had completed its direct examination on 5 April 2004; VD1-10 is an exhibit that consists of additional notes made by then Master Corporal Hillier with blacked-out portions. These notes were revealed as part of the initial disclosure; VD1-11 is the same document as VD1-10 but without the blacked-out portions and with the new revealed text being also highlighted in yellow colour. This document was also disclosed to the defence after the beginning of this trial and more precisely after the first witness called by the prosecution in the main trial had completed its direct examination on 5 April 2004; VD1-12 consists of an 11-page document which is copy of the notes attributed to Lieutenant Blume, a police officer, with regard to this case with blacked-out portions which were part of the original disclosure material provided to the defence; VD1-13 is a 10-page document, or 10 pages of the same document as VD1-12 but without the blacked-out portions and with the new revealed text highlighted in yellow colour. Page 3 of VD1-12 is removed because it was only a blank page. That's why there's a difference in the number of pages between 12 and 13. This document was also disclosed to the defence after the beginning of this trial and more precisely after the first witness called by the prosecution in the main trial had completed its direct examination on 5 April 2004;
Page 4 of 19 VD1-14 is a copy of CFNIS Investigation Plan GO 2003-930, OP ATLAS with a number marked as copy 2 of 4, submitted by Master Corporal Hillier and approved by Major Bates of the CFNIS on 1 April 2003. This document contains two other signature blocks for reviewing officers identified as Commander S. Moore, DPM NIS and Colonel D.A. Cooper, CFPM, but those signature blocks are unsigned. This document was also disclosed to the defence after the beginning of this trial and more precisely after the first witness called by the prosecution in the main trial had completed its direct examination on 5 April 2004; VD1-15 is an exhibit which consists in a two-page briefing note with enclosures entitled "Proposed Undercover Drug Operation (CTC Gagetown)" that had not been disclosed to the defence initially but disclosed to the defence after the beginning of this trial and more precisely after the first witness called by the prosecution in the main trial had completed its direct examination on 5 April 2004; VD1-16 is a document which consists of a copy of a three-page extract of the transcript of an audio recording that consists of undercover notes 01-14 May 2003 attributed to Master Seaman MacDonald. The document is paginated from page 14 to 16 inclusively. Page 16 contains a significant blacked-out portion. This document was disclosed to the defence as part of the original disclosure; VD1-17 represents a copy of the Director of Military Prosecutions Policy Directive 006/99, dated 15 March 2000 on the subject of courts martial disclosure; VD1-18 consists in a copy of the third page of the document filed as exhibit VD1-16, that is, page 16 but without the blacked-out portions and with the revealed text being highlighted in yellow colour. This document was disclosed to the defence only a few minutes before the prosecution filed this document before the court during the voir dire; and finally, VD1-19 which is a letter from the prosecutor, Lieutenant-Commander Deschênes, dated 21 November 2003 to Lieutenant-Colonel Sweet, the defence counsel, with regard to the disclosure for the upcoming court martial of Private Bianca. In a nutshell, this letter informs the recipient that the enclosures to that letter consist of all relevant information currently in the possession or control of the prosecution and that, according to the DMP Policy, the identity of the confidential informant will not be disclosed. The
Page 5 of 19 letter also informs the defence that it is withholding the disclosure of a sealed application for a warrant and the warrant permitting the use of a tracking device in order to protect confidential investigative techniques. [5] Now turning to the background. The background to this application can be summarized in this matter. During the direct examination by counsel for the prosecution of witness MacDonald, the defence objected on numerous occasions in the manner in which the witness was giving his testimony. During his testimony, the witness had extreme difficulty not to testify in reading his notes, in reading his notes in court rather than using his notes, as he should, to refresh his memory and continue with his testimony. [6] The court sustained the objections made by the defence counsel and warned the prosecution on several occasions in this improper use of police notes. Despite these warnings addressed to the prosecution, the witness continued to read from his notes and the witness was explicitly warned by the court to use his notes only to refresh his memory. [7] However, during that direct examination, the witness revealed information that identified Ex-Private Cavan as the source or informant that prompted the investigation against the accused. Although the identity of Ex-Private Cavan had been revealed to the defence in the disclosure of material originally provided, the portion of the police notes initially disclosed to the defence, that could have allowed the identification of Ex-Private Cavan as the informant or the source, had been blacked-out, and this appears from a review of VD1-6 and VD1-7. [8] With regard to Exhibits VD1-8 and -9, that consists of the notes of then Master Corporal Hillier concerning a police operation conducted with the undercover agent MacDonald on 4 February 2003, it appears that any information that could have assisted in determining that Ex-Private Cavan was the source or the informant was blacked-out and not disclosed to the defence. However, the identity of Cavan was disclosed to the defence but only to reveal that he was present in Private Bianca's residence that night with the undercover agent. That information was insufficient to identify Cavan as the police informant. [9] Exhibits VD1-10 and -11 are also extracts from then Master Corporal Hillier but this time with regard to events that took place on 2 February 2003. There again, the disclosed copy of the notes identified Ex-Private Cavan as entering Private Bianca's residence with the undercover agent, but that information alone was not sufficient, in reading these notes, to identify Cavan as the source, informant, or agent of the police. VD1-11, which revealed the portions that had been blacked-out, would have disclosed that information. [10] VD1-12 and VD1-13 are the notes of Captain Blume and they are to the same effect. Although Cavan's name was mentioned in the original portions of the notes as disclosed to the defence, the review of these notes shows that it dealt with Cavan only in a
Page 6 of 19 factual manner; that is, putting Cavan in the presence of the undercover agent, driving up to Private Bianca's residence, entering the residence, and leaving the residence. VD1-13 would have allowed to reveal the identity of Cavan either as an informant or agent of the police. [11] It is noteworthy to mention that it appears from these two exhibits, more precisely at timing "1720", that evidence consisting of marked money was photographed with a digital camera. However, it is conceded that these photographs, despite the mention of the word "evidence" being used in the notes in referring to the marked money, were not disclosed to the defence. [12] The prosecution informed the court these photographs were not disclosed to the defence because they were allegedly taken for the sole purpose of being used as a training aid by the police, and I will address that issue later in this ruling. [13] So to continue with the background, as Master Seaman MacDonald had just disclosed the identity of Cavan as both the police informant or the source used by the police in this case, which was unknown by the defence until that time, the witness MacDonald testified in direct examination as to existence of an operation plan that had been prepared and approved in relation to the investigation or police operation which led ultimately to the charges before the court. Both the existence of that plan and its content had not been disclosed to the defence prior to the beginning of this trial. [14] During an adjournment, the prosecution then disclosed VD1-14 and -15 which are the investigation plan and a briefing note preceding the investigation plan because their existence had just been revealed by the witness MacDonald during the trial. [15] At that time, the defence informed the court, as he had just started his cross-examination of the witness MacDonald, that he would make an application to this court on the issue of faulty disclosure by the prosecution. [16] So this provides the background that brought up the application made by the defence requesting this court to enter a judicial stay of proceedings under section 24(1) of the Charter. [17] The court considers the following facts and events, as revealed by the evidence, to be of significant relevancy in order to dispose of this application. [18] On 7 January 2003, Ex-Private Cavan contacts the CFB Gagetown military police and provides tips with regard to certain alleged illicit activities implicating Private Bianca at the time, which are related to trafficking, and using an illicit substance from his residence.
Page 7 of 19 [19] On 8 January 2003, the military police conducts a check of the identity and as to the status of Private Bianca as a member of the Canadian Forces posted in Gagetown. Master Corporal Hillier and Master Seaman MacDonald, both from the NIS, meet with the informant Cavan at a Tim Horton's Restaurant in Fredericton. The informant apparently agrees to introduce an undercover agent, that is, Master Seaman MacDonald, to Private Bianca in order to assist them with the investigation. [20] On 14 January 2003, Master Seaman MacDonald and his colleague, Master Corporal Hillier, meet again with the informant Cavan where Cavan tells them he has arranged a meeting with Private Bianca the following week to introduce the undercover agent. This information is not disclosed to the defence before the beginning of the trial. [21] On 21 January 2003, the confidential source, or informant Cavan, signs a release of liability and becomes an agent of the NIS for the purposes of this investigation. The existence of this document and the document is only disclosed to the defence after the beginning of this trial. [22] Although the source/agent Cavan is not remunerated for his services, he apparently asks the investigators to provide him with a letter of recommendation in exchange of his services to assist him in having his item of release changed, as he had just been released from the Canadian Forces for drug-related activities, in order to allow him to be employed in the Reserve Force in the future. He also tells the investigators that the purpose of him becoming an informant is revenge against Private Bianca, and the investigators agree to provide him with a letter if the tips are conclusive and found to be useful in an ongoing investigation. [23] They inform Cavan that the letter would only be provided when the investigation is completed. The investigation was completed on or about 24 June 2003. A letter was prepared and sent to Cavan on 18 September 2003 and that letter is VD1-4. This information and the letter were not disclosed to the defence before the beginning of the trial. [24] The investigators also inform Cavan that his identity could no longer be protected when he became an agent. It was understood that his identity would be protected until the end of the investigation, but that it would be disclosed later as being an agent, not an informant but as being an agent, once he introduced the undercover policeman to the accused. [25] On 2 February and 4 February 2003, the informant who had become an agent for the police accompanies the undercover agent MacDonald to Private Bianca's residence where alleged transactions occur. It is alleged that Cavan had made the contacts with Private Bianca to have these meetings.
Page 8 of 19 [26] That agent is then phased out after that date having been informed on 3 February of the investigator's decision with regard to his status as an agent. There again, his informationSSor this information was not disclosed to the defence as part of the initial disclosure but the information came out during the direct examination of Master Seaman MacDonald in the main trial. This caused the prosecution to disclose VD1-4, VD1-5, -7, -9, -11, -13, -14, -16, and -18 which are clean copies of the notes of the NIS investigators, MacDonald, Hillier, and Blume, as they relate to the investigation. [27] During the examination of Master Seaman MacDonald, it is revealed to the defence, for the first time, that a police operation plan and a briefing note were prepared concerning the investigation, and these are exhibits VD1-14 and -15. That information had also not been disclosed, and during an adjournment, the prosecution provides copies of these documents to the defence. [28] In late October 2003, the investigators prepared the disclosure package with regard to this investigation and decided that Cavan's identity would not be disclosed as a source, but that it would only when he had became an agent and introduced the undercover agent to Private Bianca. They blacked out portions of their notes accordingly. [29] It is of interest to note that if Cavan became an agent as of 21 January '03, the relevant portions of the investigators' notes in VD1-6, -8, -10 and VD1-7, -9, and -11 for the events that took place on the 2nd, 3rd, and 4th of February related to the actions of Cavan, who was an agent on these dates, were blacked-out and not disclosed to the defence. [30] As I said previously, only was he named in the notes originally disclosed with regard to his factual presence to and from Private Bianca's residence. It was also decided in October 2003, if I understand correctly, that Cavan's identity as being the source would not be disclosed until the beginning of this trial. [31] On 19 November 2003, the prosecutor, the prosecutor here being represented by the Deputy Director of Military Prosecutions, informs counsel for the accused and the court martial administrator that the prosecutor, Lieutenant-Commander Deschênes, is prepared to proceed in this case as of 9 December 2003. However, the prosecution confesses in their letter that they have not yet disclosed material to the defence counsel, Lieutenant-Colonel Sweet, that they have not disclosed to defence counsel all the disclosable material in its possession to date but that it will be done shortly. [32] The court questions the seriousness of the prosecution to declare itself being ready to proceed within three weeks and affirming at the same time that it has not disclosed relevant material to the defence, especially when, as it was revealed some week later, that the material to be disclosed was extensive.
Page 9 of 19 [33] In any case, a day later, that is, on 20 November 2003, the defence counsel contacts counsel for the prosecution by email and promptly informs Lieutenant-Commander Deschênes that the date of 9 December is not acceptable having not received any disclosure despite assurances that it would be done one week before. Counsel for the prosecution informs counsel for the defence that the disclosure is on its way, the delay having been occasioned by a shortage of staff in the prosecutor's office. The prosecution then suggests trial dates of 6th or 7th of January, 2004. [34] The next day, that is, on 21 November 2003, the prosecution sends a letter to the defence counsel with the disclosure package, and that letter is VD1-19. Para 1 of this letter states: 1. Find enclosed all the relevant information currently in the possession or under the control of the prosecution with respect to the disciplinary proceedings initiated against your client. Paragraph 2 states: 2. Please note that, according to the Reference, the identity of the Confidential Informant will not be disclosed.... [35] The court notes that the disclosure package was not on its way on 20 November 2003 as indicated by the prosecution in its email but only the day after. The prosecution submits that the identity of Cavan as an agent, and this is very important, as an agent, was disclosed to the defence on 21 November 2003. Based on the evidence before me, I disagree. [36] My review of all the notes provided to the court in this voir dire does not support such a strong statement by the prosecution. The notes do mention the identity of Cavan but only on a factual basis; that is, being in the presence of the undercover police on his way to Private Bianca's residence, establishing his presence in that residence with these two persons, and his departure from the residence in company of the undercover police officer. The reading of the information as it relates to Cavan is not sufficient to draw the conclusion that he was acting then as an agent. [37] There may be other documents that would have made clear to the defence that Cavan was an agent of the NIS when he was accompanying the undercover policeman or when he made contacts with Private Bianca in order to arrange a meeting with the undercover investigator, Master Seaman MacDonald, but these documents, if they do exist, are not in evidence.
Page 10 of 19 [38] On 12 January 2004, an application is made by the defence counsel through videoconference where counsel for the defence requests an order from the military judge, assigned to preside at the court martial, that a new date be set for the trial. One of the main reasons put forward by defence counsel is the disclosure of 34 videotapes of surveillance. Defence counsel submitted that he had not, at that time, had the time to review in sufficient details the evidence with his client. [39] The military judge inquired with the defence counsel if, to his knowledge, disclosure had been completed. The defence counsel referred to his colleague for the prosecution who, in turn, informed the judge that she opposed to the setting of a new date of trial on the basis that defence had agreed to a trial date of 14 January 2004, and that with regard to the issue of disclosure, counsel for the prosecution stated, and although this is not an official transcript, she stated: The defence had the disclosure in its possession, and when I say disclosure, I say full disclosure in his possession for a month and a half already. [40] It is now obvious that this was an incorrect statement, at least with regard to a briefing note and the operation plan, which may not proved to be of great assistance to the defence but should, from the own admission by Madam Prosecutor, should have been disclosed to the defence in November 2003. [41] Sergeant Hillier, the lead investigator, stated in court, in the voir dire, that it was determined at least a week ago that the identity of Cavan, not as an agent, but as an informant, could no longer be protected and would be disclosed at trial. He stated in this voir dire that he was asked to contact Mr Cavan to inform him accordingly. His attempt to contact him did not provide positive results. [42] So when they realized, last week and this past weekend, that Cavan could not be reached, a decision was made, although it is not clear who made the decision that the investigators, the prosecution, or both, that this information would come out at trial. This obviously came out in court through the testimony of Master Seaman MacDonald. That information was never disclosed to the defence before the beginning of this trial. [43] Counsel for the prosecution candidly admitted that she inadvertently made an error in not disclosing the briefing note and the operation plan in November 2003 as they were in the prosecution's possession, at the time, and relevant to an issue at trial. [44] The prosecution informed the court that this error was discovered in preparing the prosecution witnesses Monday morning as the trial was scheduled to commence at 1300 hours. Counsel for the prosecution also informed the court that this omission was not relayed to defence counsel forthwith and the prosecution deliberately kept that discovery for herself and decided to go ahead with the trial.
Page 11 of 19 [45] Counsel for the prosecution candidly recognized that it is the disclosure of the existence of these documents by Master Seaman MacDonald in his testimony during the trial that caused the prosecution to provide these relevant documents to the defence during an adjournment either Monday afternoon or Tuesday. [46] So this concludes the review of the evidence that is before the court with respect to this application and the background information that the court considers relevant as well. [47] Now turning to the law. The right to disclosure is not an end in itself. Its purpose is to help ensure a defendant's right to fundamental justice with its dual issues of reliability of the result and fairness. Applications relating to disclosure involve a multi-faceted process with three main stages: 1. whether there was a breach of disclosure, if so, 2. whether there was a breach of full answer and defence, and 3. appropriate remedy, if a breach either. [48] It is well settled law that the prosecution has a duty, a legal duty, to disclose all relevant information to the defence, not merely the material that the prosecution intends to use as part of its case. The fruits of the investigation that are in its possession are not the property of the prosecution to secure a conviction, but the property of the public to ensure that justice is done. [49] The prosecution is, however, granted some discretion related to relevance and privilege. In that context, there is no obligation on the prosecution to disclose or produce documentation it doesn't have. This is an ongoing obligation imposed on the prosecution, and it must disclose any new information or material to the defence as soon as it becomes in its possession or control. [50] The right of the accused to disclosure of information exists whenever there's a reasonable possibility of the information being useful to the accused in making full answer and defence. This right is protected under section 7 of the Charter and helps to guarantee the accused's ability to exercise the right to make full answer and defence as this was recognized by the Supreme Court of Canada in R. v. Carosella (1997), 112 C.C.C. (3d) 289, at paragraph 37 of the decision. [51] Breach of that obligation is a breach of the accused's constitutional rights without the requirement of an additional showing of prejudice. The requirement to show
Page 12 of 19 additional prejudice or actual prejudice relates to the remedy to be fashioned pursuant to section 24(1) of the Charter. [52] It is trite law that the purpose of prosecution offences is not to secure a conviction at all costs. It is to lay, before a court, what the prosecution considers to be credible and relevant evidence that would establish the commission of an alleged offence. The prosecution has the duty to present all available evidence firmly, thoroughly but fairly. The prosecution does not win; the prosecution does not lose. [53] The connections between the duty to disclose and the duties of the prosecutor were expressed by Justice Claire L'Heureux-Dubé, as she then was, in R. v. O'Connor (1995), 103 C.C.C. (3d) 1, and at page 50 of that decision at para 101, she states: [101] Though the obligation on the Crown to disclose has found renewed vigour since the advent of the Charter, in particular s. 7, this obligation is not contingent upon there first being established any violation of the Charter. Rather, full and fair disclosure is a fundamental aspect of the Crown's duty to serve the court as a faithful public agent, entrusted not with winning or losing trials but rather with seeing that justice is served: Stinchcombe, supra, at p. 7.... [54] As expressed in R. v. Dixon (1998), 122 C.C.C. (3d) 1, and it's a decision by the Supreme Court of Canada, of course, the defendant must demonstrate a reasonable possibility that the undisclosed information could be, or could have been, used in meeting the case for the Crown by advancing a defence or otherwise making a decision which could affect the conduct of the defence. [55] The court finds that the disclosure of the briefing note and the operation produced in VD1-14 and -15 could have been used at the very least in preparing the cross-examination of prosecution witnesses. The same is true for the pictures taken of material evidence which is the subject of an entry in Investigator Blume's notes as revealed in VD1-12 and VD1-13. [56] The defence has also provided sufficient evidence, in my view, to show, in the special circumstances of this case, that the non-disclosure of the identity of Ex-Private Cavan, first as an agent of the police, and second as a police informant, as it has now been revealed by Master Seaman MacDonald in his testimony, could have been useful in preparing his defence. It could have been also useful in advancing one or several defences, in preparing the cross-examination of police officers and also in making tactical decisions in the conduct of this trial. [57] The court is satisfied on a balance of probabilities that not only there was a failure by the prosecution in its duty to disclose, but also that there is already a breach of his
Page 13 of 19 right to full answer and defence. This is even more emphasized by the fact that the known agent and source is now potentially an important witness and that this person, according to the military police, cannot be located at this time. The court finds that the information that I have just mentioned is material information. [58] The analysis on appeal of whether there was prejudice to the ability to make full answer and defence, that was set out in Dixon, is applicable at trial level. A finding of a breach of disclosure obligations leads to a two-stage test to determine if there has also been a breach of full answer and defence. And these stages involve: 1. The reliability of the trial result; and 2. Fairness of the trial process. [59] As to reliability: At trial, the court would be assessing whether there was a reasonable possibility that the information could affect the outcome of the trial that is still unfolding, and this should not be done until there is enough of a factual background presented for the court to make an informed decision. [60] As to fairness: If there is no reasonable possibility of affecting the reliability of the result, the court must consider the effect on the overall fairness of the trial by assessing, on the basis of a reasonable possibility, the lines of inquiry with witnesses, or the opportunities to garner additional evidence that could have been made available to the defence if the information had been disclosed. [61] In this second phase, defence counsel's diligence in pursuing disclosure from the Crown is relevant, because lack of due diligence is a significant factor in determining whether the non-disclosure affected the fairness of the trial process. Counsel who becomes, or ought to have become, aware from material that has been disclosed of a failure to disclose further material must not remain passive, but diligently pursue disclosure. This court considers that counsel for the defence acted diligently throughout this process. [62] The court considers that counsel for the defence has established, through the evidence introduced during this voir dire, that the failure to disclose of the various elements described in evidence, has, on the balance of probabilities, prejudiced or had an adverse effect on full answer and defence. [63] Having concluded that the prosecution breached its obligation or duty to disclose relevant material to the defence and having concluded that this violation breached, in the particular circumstances of this case, the right of the accused of making full answer and
Page 14 of 19 defence, the court now must determine what would constitute an appropriate remedy in this case. [64] Although the appropriate remedy for a violation must be determined on a case by case basis; generally, an order for full disclosure with an adjournment for preparation and the right to cross-examine, or to re-examine, or re-cross-examine any witnesses already heard will be sufficient. A mistrial should be rare and a stay of proceedings even more rare. The defence argues that this is not one of those cases where an adjournment is an adequate remedy. [65] A mistrial is an appropriate remedy where late disclosure has caused the defence to make an irrevocable step in the trial that might have been handled differently with timely disclosure, and any resulting prejudice would not affect full answer and defence on the trial. [66] In cases of stay of proceedings, it is generally accepted that it could be an appropriate remedy where either of the following two factors are present: First, no alternative remedy would cure the prejudice to the ability to make full answer and defence; or second, irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued. [67] In R. v. O'Connor, Madame Justice L'Heureux-Dubé went on to say at pages 40 to 43, the process for determining when non-disclosure by the Crown violates section 7 and when a stay is an appropriate remedy, and I quote from paragraph 74: [74] ... Where the accused seeks to establish that the non-disclosure by the Crown violates s. 7 of the Charter, he or she must establish ... then it carries on: [74] ... the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence. It goes without saying that such a determination requires reasonable inquiry into the materiality of ... [such] non-disclosed information.... Further at paragraph 75, she says: [75] ... [A] stay of proceedings will only be appropriate when two criteria are fulfilled: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
Page 15 of 19 (2) no other remedy is reasonably capable of removing that prejudice. At paragraph 77, she adds: [77] ... A stay of proceedings is a last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted. At paragraph 78, she states: [78] When choosing a remedy for a non-disclosure that has violated s.7, the court should also consider whether the Crown's breach of its disclosure obligations has also violated fundamental principles underlying the community's sense of decency and fair play and thereby caused prejudice to the integrity of the judicial system. If so, it should be asked whether this prejudice is remediable. Consideration must be given to the seriousness of the violation and to the societal and individual interests in obtaining a determination of guilt .... And finally, from paragraph 83, she stated: [83] ... [T]here may be some extreme cases where the prejudice to the accused's ability to make full answer and defence or to the integrity of the justice system is irremediable. In those "clearest of cases", a stay of proceedings will be appropriate. [68] As it is clearly stated by the Supreme Court of Canada, the prejudice contemplated may be either prejudice to the accused or prejudice to the integrity of the judicial system. [69] In R. v. Regan (2002), 161 C.C.C. (3d) 97, the Supreme Court reaffirmed these principles and even adding some in paragraphs 49 to 57. Mr Justice LeBel made it clear that conduct which does not affect trial fairness may nevertheless constitute an abuse of process, if it causes prejudice to the integrity of the judicial process. [70] At paragraphs 55 and 56, Mr Justice LeBel stated that if the abuse of process takes its source from the attack to the integrity of the judicial process, it must be likely that the past misconduct, i.e., the abuse, will continue to plague the judicial process, before the ultimate remedy of a stay will be ordered. [71] Finally, if there is uncertainty, in the sense that a stay of proceedings is not obviously and clearly justified, Justice LeBel states that the court must engage in a balancing or weighing of public and individual interests. It is pointed out at para 57, however, of that decision that "a compelling societal interest in having a full hearing could tip the scales in favour of proceeding".
Page 16 of 19 [72] In R. v. Taillefer; R. v. Duguay (2003), 179 C.C.C. (3d) 353, which is a decision rendered in December 2003, the Supreme Court of Canada, in a unanimous decision delivered by Mr Justice LeBel, provided even more precision on what could impact the overall fairness of the process. Mr Justice LeBel stated, at page 388, that's at paragraph 84 of the decision: [84] The reasonable possibility of affecting the overall fairness of the trial "must be based on reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure" (Dixon, supra, at para. 34 (emphasis in original)).... That's in the judgement, that's not me that is quoting somewhere else. So to continue with the quote: ... Here again, the appellate court must not assess the possible uses of the fresh evidence based on an item-by-item analysis of the probative value of the evidence. It must ascertain whether the failure to disclose deprived the accused of certain evidential or investigative resources. That would be the case, for example, if the undisclosed statement of a witness could reasonably have been used to impeach the credibility of a prosecution witness. The conclusion would necessarily be the same if the prosecution fails to disclose to the defence that there is a witness who could have led to the timely discovery of other witnesses who were useful to the defence. [73] Later in this decision, at page 403, that's at paragraph 122, Mr Justice LeBel emphasizes that judges should be prudent before ordering a stay of proceedings as it is often best assessed if the trial is allowed to continue and if the judge reserves on the application. He states: [122] It will be up to that judge to monitor the conduct of the new trial closely, and if necessary to assess the consequences of the passage of time and of the prosecution's conduct on the overall fairness of the proceeding being held before him or her. As this Court held in R.v. La, [1997] 2 S.C.R. 680, 116 C.C.C. (3d) 97, 148 D.L.R. (4th) 608, at para. 27: Then he quotes the case in La which says: The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application. This will enable the judge to
Page 17 of 19 assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit. [74] With these rules of law in mind, I return to the issue of whether an abuse of process has occurred, and will continue to occur, if the accused is tried on the present charge sheet. [75] The court finds that despite their remarks to the contrary, the identity of Ex-Private Cavan as an agent of the NIS during the early stage of the investigation when he introduced Private Bianca to Master Seaman MacDonald, the undercover policeman, was not disclosed to the defence. As stated earlier, the mention of his name in the notes, in the manner in which he was described in the notes, does not support that view. [76] On 2nd, 3rd, and 4th of February, 2003, he was undoubtedly acting as an agent and the police notes, filed in evidence, clearly indicated that relevant information as to his status and role in the investigation as an agent was not disclosed to the defence. Rather than identifying him as an agent and disclosing that information, the investigators continued to refer to him as a source in their notes, which he no longer was, and they used that method in order to protect him as the source by blacking out relevant information. [77] The evidence before the court is not conclusive to affirm that these actions by the investigators were planned and deliberate, but it is sufficient to conclude that, in so doing, they unduly protected information that ought to be disclosed to the defence as it could be crucial to the defence in preparing its case, including the possibility of canvassing potential defences including entrapment. [78] With regard to the identify of Cavan as the source, the court concludes that once the investigators and the prosecution had ascertained, last week, that his identity could no longer be protected as a source and that Sergeant Hillier confirmed that his attempts to locate that person were unsuccessful, not only the information would be disclosed at trial, but it was the duty of the prosecution to disclose these facts to defence counsel prior to the beginning of the trial. [79] The defence could have used that information and reassessed its case in light of that new information, including asking for an adjournment or coming to the conclusion that Cavan is a key witness to the preparation of his case in defence or in attacking the credibility of a prosecution witness. The only thing we know is that Mr Cavan is nowhere to be seen, and we have an accused whose trial has already begun, in which the undercover policeman has already completed his direct examination. [80] As to the failure to disclose the briefing notes and the operation plan, the prosecution submits that this was an error by inadvertence that was discovered Monday
Page 18 of 19 morning shortly before the beginning of the trial as the counsel for the prosecution was preparing witnesses for trial in the afternoon. I take note of that. Errors do occur whether they are inadvertent errors or not. [81] Rather than alerting the defence of that regrettable mistake, the prosecution chose willingly to keep the defence uninformed and decided to start the trial as if nothing had occurred. It is only because the witness for the prosecution revealed the existence of these documents in cross-examination, that the prosecution disclosed that material in a subsequent adjournment. [82] This, in my view, could be considered as a serious breach of the duty to disclose and it raises, at least, an issue as to the understanding of the role of the prosecution in absence of a logical explanation. At the very least, this court considers this omissionSSand not as much the omission of not disclosing these documents in November 2003, but the omission to inform the defence counsel forthwith on the discovery of the original failure to discloseSSto amount to a significant error in judgement, even if the court cannot conclude that the prosecution in this case acted maliciously or dishonestly. [83] The court feels that it was an unfortunate error in judgement but which has serious consequences, but let me be clear, the court does not believe that counsel for the prosecution lacked integrity here. It was an unfortunate error in judgement but which has serious consequences. [84] However, this could have been avoided in ensuring a more hands-on involvement and control by the prosecutor in the disclosure process. It may be true that resources are limited, but cases that involve significant amount of disclosable material should receive proper attention, whether or not the alleged offences are not the most important objectively. The rights of an accused to be treated fairly and to make full answer and defence do not vary depending on the nature of the offence and its maximum punishment. [85] Now turning to the mention found in the notes of Investigator Blume to the effect that evidence that consisted marked $20 bills and $10 bills was digitally photographed, the defence did not receive disclosure of these photographs of that material evidence. The prosecution stated that these photographs were only taken to serve as training aids for the police and were not relevant to this case. [86] This affirmation by the prosecution demonstrates either a lack of understanding by the investigators, in this file, of what constitute proper disclosure or a fairly liberal and light approach to their obligation to disclose or both. The court finds that it demonstrates a blatant disregard for their legal obligations.
Page 19 of 19 [87] So looking at these significant breaches and the manner in which they occurred, the court believes that in the circumstances of this case, including the objective seriousness of trafficking small quantities of marihuana over an extended period of time, in a military environment, the conduct of the prosecution, including the conduct of the investigators of the NIS, is so serious that a stay is required in order to avoid bringing our military justice system into disrepute. [88] This remedy is not chosen by this court to punish the conduct of the prosecutorial authorities and the investigators involved in this case. It is meant to prevent these violations from being perpetuated or aggravated, especially in light of the disclosed identity of Ex-Private Cavan, both as a source and as agent, and his unknown whereabouts when witnesses have already been partly examined in the main trial. [89] For these reasons, this court concludes that the rights of Ex-Private Bianca under section 7 of the Charter as they relate to his right to make full answer and defence have been infringed, and applying section 24(1) of the Charter, the court directs a stay of proceedings. [90] Therefore, the proceedings for the Standing Court Martial with respect of Ex-Private Bianca, the proceedings are terminated. Thank you very much. LIEUTENANT-COLONEL M. DUTIL, M.J Counsel: Lieutenant-Commander C.J. Deschênes, Regional Military Prosecutions Atlantic Counsel for Her Majesty The Queen Lieutenant-Colonel D.T. Sweet, Directorate of Defence Counsel Services Counsel for Private S.C. Bianca
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