Courts Martial

Citation: R. v. ex-Captain Savic, 2007 CM 3004

Docket:200701

STANDING COURT MARTIAL

CANADA

ONTARIO

CANADIAN FORCES BASE TRENTON

Date:8 February 2007

PRESIDING:LIEUTENANT-COLONEL L.-V. D'AUTEUIL, M.J.

HER MAJESTY THE QUEEN

v.

EX-CAPTAIN M. SAVIC

(Accused)

DECISION RESPECTING AN APPLICATION UNDER SUBSECTION 24(1) OF THE CHARTER FOR AN ALLEGED VIOLATION OF SECTION 7 AND 11(d) OF THE CHARTER.

(Rendered orally)

[1]                    The defence has made an application in which it seeks an order from this

court to stay the proceedings on the first charge 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 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 about the first charge only.  Alternatively, the defence submits that if this court does not consider a judicial stay of proceedings, then the remedy is in the nature of a mistrial and must be used.

[3]                    The following evidence is before the court with respect to this

application.  Firstly, the testimony of Warrant Officer Bureau heard so far in the main trial, and his evidence was rolled in the voir dire, and secondly an agreed statement of facts, Exhibit VD1-1, introduced on the consent of both counsel.

[4]                    The background to this application can be summarized in this matter.

During the cross examination by counsel for the defence of Warrant Officer Bureau, the latter indicated that he met Captain Savic on the day of the alleged offence described in the first charge; that is to say, on 12 May 2006, in order to make him sign a medical prescription form that he prepared for himself.  In answering a question asked by the defence counsel, the witness indicated that during the casual conversation he had with the accused, the issue of his blood work was raised.

[5]                    Later, during the same cross-examination, the defence counsel specifically

raised the issue of the blood work's subject with the witness, and according to him, the accused answered that he was 100 percent sure that the accused did ask on 12 May 2006 about his blood work's condition while signing the prescription form.  Then, the trial was adjourned to the request of the defence counsel and this application was presented to this court later.  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.

[6]                    The issue of the witness' blood work has some importance because it is

related to one of the essential element of the offence in the first charge that has to be proven by the prosecution; that is to say, that the disobedience really occurred by having a patient contact.

[7]                    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.  It appears from the agreed statement of fact and the testimony of Warrant Officer Bureau that the contain of the conversation between the witness and the accused on 12 May 2006 was put to the attention of the prosecution only on the 5 February 2007, the day prior to the beginning of this trial.  Never before, the prosecution was informed, in a way or another, about the subject of the conversation or that the conversation took place.  It was clearly impossible for the prosecutor, Major MacLeod in this case, to proceed with the disclosure of this matter to the defence before the 5 February 2007.  Moreover, because the prosecution relied mainly and solely on the prescription form to establish the patient contact to which it is referred in the first charge, when the conversation about the blood work of Warrant Officer Bureau was put to the attention of the prosecutor, she did not consider it as meaningful to the extend that she did not ask a question on that issue during the direct examination.

[8]                    It is important to note that nothing in the disclosure provided to the

defence on the day prior to this trial indicated to the defence counsel that such subject was covered, including in the notes taken by the military police member who attended to the preparation of the witness by the prosecutor.  It is through the cross-examination of Warrant Officer Bureau that the defence learned and confirmed for the first time that the blood work of the witness was the subject of a discussion with the ex-Captain Savic.

[9]                    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.  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:  first, whether there was a breach of disclosure, if so; second, whether there was a breach of full answer and defence; and finally, the appropriate remedy, if a breach either.

[10]                  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.

[11]                  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.  The right of the accused to disclose 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.

[12]                  Breach of that obligation is breach of the accused's constitutional rights

without the requirement of an additional showing of prejudice.  The requirement to show additional prejudice or actual prejudice relates to the remedy to be fashioned pursuant to section 24(1) of the Charter.

[13]                  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.

[14]                  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:

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]....

[15]                  As expressed in R. v. Dixon (1998), 122 C.C.C. (3d) 1, the defendant

must demonstrate a reasonable possibility that the undisclosed information could be, or could have been, used in meeting the case for the prosecution by advancing a defence or otherwise making a decision which could affect the conduct of the defence.

[16]                  The court finds that the failure to disclose prior to the beginning of the

trial the information about the discussion on Warrant Officer Bureau's blood work condition during a conversation with ex-Captain Savic on the day of the alleged offence described in the first charge could have been used at the very least in preparing the cross-examination of Warrant Officer Bureau, a prosecution witness, and also in making tactical decisions in the conduct of this trial.  Then, the court is satisfied, on a balance of probabilities, that there was a failure by the prosecution in its duty to disclose.

[17]                  Turning now to the second stage, the analysis on appeal of whether there

was prejudice to the ability to make full answer and defence, which was set out in Dixon, is applicable at trial level.  Generally, an applicant must establish that the failure to disclose has, on the balance of probabilities, prejudiced or had an adverse effect on full answer and defence.  The degree of blameworthiness by the prosecution is not relevant to the issue of a breach, but may be relevant to the appropriate remedy.

[18]                  Prejudice to full answer and defence means that there was a reasonable

possibility that the failure to disclose would have affected the outcome at trial or the overall fairness of the trial.  This is a two-stage analysis involving first reliability and second fairness.

[19]                  Concerning the reliability or the outcome at trial, the onus is on the

accused to demonstrate that there is a reasonable possibility that the verdict might have been different but for the prosecution's failure to disclose all of the relevant evidence.  Is there was a reasonable possibility that a jury, with the benefit of all of the relevant evidence, might have had a reasonable doubt as to the accused's guilt?  The court martial considers that the defence has not established through the evidence presented in this voir dire, that it exists a reasonable possibility that the verdict might have been different.  Being at the first prosecution witness in this trial, and considering that the undisclosed information was revealed through the cross-examination by the defence counsel who made the choice to investigate specifically this matter in court instead of stopping questioning the witness when this issue first came up, does not demonstrate that this court might have had a reasonable doubt as to the accused's guilt on the first charge.  Moreover, the nature of the information discovered may be of some help to the defence to assess the credibility of the witness who's still on the stand.  It is important to say that the prosecution does not rely on this information to prove beyond a reasonable doubt the guilt of the accused on the first charge and did not ask any question to the witness to that effect during the direct examination.

[20]                  Then, the court must continue to the second stage because infringement

of the right to make full answer and defence may arise from a reasonable possibility that the failure to disclose had an impact on the overall fairness of the trial, even if it cannot be concluded that the verdict might have been different.

[21]                  The reasonably possible use of this information or reasonably possible

avenues of investigation that were closed to the accused as a result of its non-disclosure must be considered.  Again, the assessment is not done on an item by item analysis, but simply whether the failure to disclose deprived the accused of certain evidential or investigative resources.

[22]                  Very high materiality of the undisclosed evidence, on its face, is alone a

basis for a new trial.  It is not necessary to consider the impact of lost opportunities to garner additional evidence flowing from the failure to disclose.  If the materiality of the undisclosed information is relatively low, an appellate court will have to determine whether any realistic opportunities were lost to the defence.  The court considers that the materiality of the undisclosed information that was disclosed during the cross-examination of the witness is relatively low.  However, there was a realistic opportunity for the defence to consider how to use it in advancing a defence or otherwise making a decision, which could affect the conduct of the defence.

[23]                  In this second phase, defence counsel's diligence in pursuing disclosure

from the prosecution 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.

[24]                  The court considers that counsel for the defence has established, through

the evidence introduced during this voir dire, that the failure to disclose the information obtained through the cross-examination of Warrant Officer Bureau, has, on the balance of probabilities, prejudiced or had an adverse effect on full answer and defence.

[25]                  Having concluded that the prosecution breached its obligation or duty

to disclose relevant information to the defence and having concluded that this violation, even though minor, breached, in the particular circumstances of this case, the right of the accused of making full answer and defence, the court now must determine what would constitute an appropriate remedy in this case.

[26]                  If a disclosure order with an adjournment is sufficient to cure the

impact of the non-disclosure on the ability to make full answer and defence, which will be the proper remedy.  In more extreme situations, a mistrial should be declared.

[27]                  A mistrial is an appropriate remedy where late disclosure has caused the

defence to take 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 new trial.  The court considers that it is not the case here because it has not been demonstrated that with timely disclosure, no irrevocable step in the court martial would have been handled differently by the defence counsel.

[28]                 In exceptional situations where it is possible to remedy the prejudice,

most likely as a result of the advanced stage of the proceedings, a stay is appropriate. The "clearest of cases" test remains.

[29]                  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.  In the present court martial, none of these factors are involved.

[30]                  The court considers that it is possible to remedy the prejudice by simply

ordering that all relevant information under the possession and control of the prosecution that is related to the conversation that occurred between ex-Captain Savic and Warrant Officer Bureau on 12 May 2006 be disclosed immediately to the accused's defence counsel and that an adjournment be granted for the necessary time considered appropriate in order to provide him a good opportunity to reassess how to use this information in advancing a defence or otherwise making a decision which could affect the conduct of the defence, including the conduct of the cross-examination of Warrant Officer Bureau.

[31]                  It is important to say that the prosecution's breach of its disclosure

obligations has not violated fundamental principles underlying the community's sense of decency and fair play and has not thereby caused prejudice to the integrity of the judicial system.  In fact, there is no reason in the circumstances to blame the prosecution who failed in some way, inadvertently, to disclose this relevant information.

[32]                  For these reasons, this court concludes that the rights of ex-Captain Savic

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 that all relevant information under the possession and control of the prosecution that is related to the conversation that occurred between ex-Captain Savic and Warrant Officer Bureau on 12 May 2006 be disclosed immediately to the accused's defence counsel.  Also, this Court Martial grants an adjournment to the defence counsel in order to provide him a good opportunity to reassess how to use this information in advancing a defence or otherwise making a decision, which could affect the conduct of the defence, including the conduct of the cross-examination of Warrant Officer Bureau.

[33]                  On the question raised by the defence counsel for disregarding the

information at issue in this application, the court would like to indicate that it would amount to declare this evidence inadmissible in the context of an application for disclosure, a conclusion that can not be consider in that legal context.  This evidence is admissible and unless the defence counsel demonstrates that, in accordance with the Rules of Evidence, this information must be declared inadmissible, it will be and stay part of this trial.

                                                      LIEUTENANT-COLONEL L.-V. D'AUTEUIL, M.J.

Counsel :

Major S.A. MacLeod,, Director Military Prosecutions

Counsel for Her Majesty The Queen

Major S.E. Turner, Director of Defence Counsel Services

Counsel for ex-Captain Savic