SUPREME COURT OF Nova Scotia
Citation: R. v. Sandeson, 2017 NSSC 196
Date: 2017 08 24
Docket: CRH No. 449840
Registry: Halifax
Between:
Her Majesty the Queen
v.
William Michael Sandeson
DECISION – VOIR DIRE 7
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Judge: |
The Honourable Justice Joshua Arnold |
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Heard: |
May 9, 10, 16, 17, 25, 29, 30, 31, and June 5, 2017, in Halifax, Nova Scotia |
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Counsel: |
Susan MacKay and Kim McOnie, for the Crown Eugene Tan and Brad Sarson, for the Defence |
By the Court:
Overview
[1] When Staff Sergeant Richard Lane took his puppy out for a walk on October 18, 2016, he had no idea of the events that would be set in motion. He certainly did not anticipate that walk would be the starting point for a mistrial application in the middle of a first-degree murder trial.
[2] This decision addresses whether a mistrial should be declared because the Crown failed to disclose the fact that a private investigator hired by the defence assisted the police in obtaining statements from two eyewitnesses and because of an alleged breach of litigation privilege relating to that private investigator.
[3] The trial commenced on Tuesday, April 18, 2017, the defence argued the mistrial application off and on between May 9, and June 5, 2017, and the jury found William Sandeson guilty of first-degree murder on Sunday, June 18, 2017.
[4] I provided the parties with my bottom-line decision rejecting the defence request for a mistrial during the course of the trial as the jury was excused for days while the mistrial application was being argued. This is my written decision.
Facts
[5] William Sandeson was charged with the first-degree murder of Taylor Samson on August 19, 2015. The Crown alleged that Samson was the victim of foul play during a drug transaction that took place in Sandeson’s apartment on August 15, 2015.
[6] Justin Blades and Pookiel McCabe had been in Apartment 1 at 1210 Henry Street, McCabe’s residence, on the evening of August 15, 2015. McCabe’s apartment was directly across the hall from Apartment 2, where Sandeson lived. Sandeson had a surveillance camera set up to record the hallway outside of Apartment 1 and Apartment 2. The surveillance video showed:
• Both Blades and McCabe having contact with Sandeson at approximately 9:55 PM;
• Andre LeBlanc and Shane Harnish entering McCabe’s apartment at 10:21 PM;
• LeBlanc and Harnish leaving McCabe’s apartment at 10:24 PM (The Crown called LeBlanc to testify at trial and he said that he had been at McCabe’s apartment to buy a gram of marijuana from Blades);
• Sandeson leading Samson into his apartment at 10:25 PM;
• Sandeson walking across the hall to McCabe’s apartment at 10:29 PM, McCabe and Blades then walking with Sandeson to look into his apartment and then walking back to McCabe’s apartment;
• Blades and McCabe walking back to Sandeson’s apartment at 10:30 PM for another quick look inside; and
• Blades and McCabe going back into McCabe’s apartment at 10:32 PM and then leaving 1210 Henry Street.
[7] On August 26, 2015, Blades gave a statement to the police essentially claiming he had no relevant information. McCabe gave two statements of a similar nature on August 19, 2015, and August 27, 2015, where he said he had no useful information to offer. The police did not follow up with Blades and McCabe.
[8] The Crown told the Court that Blades and McCabe were on their list of witnesses for the trial scheduled to commence April 18, 2017. They intended to interview these two men prior to trial to see if they would actually provide more useful information. The Crown said that they would likely have called one or both to testify, even if they maintained their original stories, merely to identify who is depicted on the hallway surveillance video as they did with Andre LeBlanc. The defence made no objection to these representations.
[9] Martin & Associates Investigations Inc. was hired to assist the defence team representing Sandeson. They were tasked with interviewing witnesses in preparation for trial. Some of the witnesses they were tasked to interview had previously given statements to the police, including Blades and McCabe.
[10] Bruce Webb was an employee of Martin & Associates Investigations Inc., a private investigation firm staffed by retired police officers. Webb was a thirty-five year member of the R.C.M.P. and retired in 2012 with the rank of Staff Sergeant. During his policing career, Webb had some dealings with criminal informants. Upon retirement from the R.C.M.P. Webb began working for Martin & Associates as a private investigator. He was tasked by Martin & Associates to interview Blades and McCabe, and was directed by Sandeson’s lawyer, Eugene Tan, to “lean on” these men to see how they would react under pressure.
[11] Webb located Blades with the assistance of Sandeson’s brother, Adam Sandeson. Webb arranged to take a statement from Blades in October 2016. On October 18, 2016, Webb met with Blades to interview him.
[12] Blades initially told Webb that he had nothing to say. He then said that he thought Sandeson was connected to the Hell’s Angels and explained that he had been living in fear and partial isolation since late August 2015. Webb assured Blades that it was highly unlikely that Sandeson had any direct connection to the Hell’s Angels and that he would be safe in telling the truth. Blades said he felt relieved and provided Webb with a statement.
[13] Blades told Webb that his August 2015 statement to the police contained false information, namely, the claim that he had not witnessed anything of significance. Very few details of Blades’ statement to Webb were provided to the Court other than that Blades indicated that his initial statement to the police was false and that, very generally, on August 15, 2015, he had looked into Sandeson’s apartment at the critical times and had seen a male, who he believed to be Samson, slumped over in a chair with blood pouring out of his head. Webb said that he told Blades he should provide a new statement to the police. Blades said that he would if Webb assisted him. Webb told Blades that he would assist him.
[14] Mr. Webb lives in the same neighborhood as Staff Sergeant Richard Lane, a senior member of the Halifax Regional Police. They had known each other professionally for decades, but were not friends and did not socialize. Lane testified that sometime in the summer of 2016, Webb appeared at his door unannounced. He told Lane that he was working for Martin & Associates, that Martin & Associates was assisting Sandeson in his defence, that he was convinced of Sandeson’s guilt, and he was concerned that the police were not doing a good job with the investigation. Lane paid no attention to this visit and did not disclose the event to the Crown. Webb said that a conversation similar to this had actually occurred in 2015.
[15] On the drive home from Blades’ interview on October 18, 2016, Webb saw Lane walking his puppy in their neighbourhood. Webb said he felt very emotional about the interview with Blades. Because Blades told Webb that he had not been truthful in his August 2015 police statement and actually was a material eyewitness to the homicide, Webb testified that he was concerned that he might personally be criminally liable for obstruction of justice if he did not provide the police with Blades’ new information. He said he felt telling the police about Blades’ potential testimony was the right thing to do. He had already promised Blades that he would assist him in speaking to the police. Webb therefore pulled over to speak to Lane and told him what had just happened with Blades.
[16] Webb said that he started his discussion with Lane with the caveat that he did not want his name mentioned as having assisted the police. Lane agreed that the issue of confidentiality was raised by Webb. Lane also said that, in his opinion, this was not the type of conversation appropriately held on the side of the road, in shorts, while walking his puppy, and he therefore told Webb that he would have a detective involved with the Sandeson/Samson file contact him the following day. Lane said that he likely told Webb that his name could probably be kept out of it, but provided no firm assurances or guarantees.
[17] The next day, Lane advised Sergeant Derek Boyd, a member of the investigative triangle looking after the Samson homicide investigation, and Constable (now Corporal) Jody Allison, an R.C.M.P. member who had worked on the Samson file and who knew Webb, of his conversation with Webb. He told them that Webb’s involvement was to remain confidential and they were to avoid water cooler discussions about the situation.
[18] Allison then spoke to Webb who reiterated his request for confidentiality and told him about his interview with Blades. Webb agreed to meet the police at Blades’ home to assist in easing Blades’ mind about providing a statement.
[19] Boyd and Allison met Webb at Blades’ home on October 20, 2016. Webb was already there when the police arrived. Webb met with Boyd, Allison and Blades together and assured Blades that he was doing the right thing and that Boyd and Allison were trustworthy. Blades agreed to provide the police with a new statement. Boyd and Allison took Blades to Halifax Regional Police Headquarters and obtained a KGB statement from him. Webb did not accompany Blades to police headquarters to provide the statement.
[20] Webb had no further contact with Blades following the meeting on October 20, 2016, between himself, Blades, Boyd and Allison.
[21] In his KGB statement, Blades stated in part:
• He was scared Sandeson was connected to the Hell’s Angels and therefore felt he might be in danger if he spoke to the police;
• As a result, he had not provided the police with an accurate statement when they spoke to him in August 2015;
• He had been waiting since August 2015, to speak to someone to tell them what he really saw and was relieved when someone finally came to speak to him;
• On August 15, 2015, Blades, McCabe, and Sandeson had been socializing in McCabe’s apartment;
• Sandeson left;
• Shortly after Sandeson left he and McCabe heard a gunshot;
• They listened at the door of McCabe’s apartment and he could only hear the sound of furniture being dragged across the floor;
• Within a minute or so of hearing the gunshot Sandeson knocked at the door;
• They opened the door, saw Sandeson who merely looked at them and immediately stepped back across the hall to his apartment leaving his door open;
• He and McCabe followed Sandeson to the threshold of his apartment and Blades saw a white male seated in a chair at the kitchen table slumped over with blood pouring out of the back of his head;
• They saw blood, money and drugs around the slumped over man;
• Sandeson was running around his apartment trying to clean up;
• They went back to McCabe’s apartment briefly;
• Blades then went back across the hall and again looked into Sandeson’s apartment;
• This time he saw bloody streak marks leading from where the bleeding man had been slumped over in the chair. These streak marks led out of sight toward the bathroom;
• Blood and money were in and around the kitchen area;
• Sandeson was running around the apartment trying to clean up;
• Sandeson asked Blades to bring his car around;
• Blades refused;
• Blades and McCabe left the building; and
• Blades returned to Sandeson’s apartment the following day and noted that it smelled strongly of cleaning fluids and had been cleaned up. Sandeson acted as though everything was normal.
[22] More significantly, for the purpose of this motion, Blades stated the following in his KGB statement about "Bruce", i.e. Webb:
Q. Right. Now does… has any of his family members tried to get a hold of you?
A. No, just Adam. Adam messaged me on Facebook. He’s, like, Bruce… like, a fellow named Bruce is… wants to talk to you to help the family out, and I was thinking, like, help Will’s family out? And there’s, like… I was thinking, like, there’s no help for him.
Q. Right, okay.
A. So, like… and then I was thinking, like, maybe this is an opportunity for me to fucking figure out what’s going on, like, can I tell people what happened, like…
Q. Right.
A. … without getting in trouble?
Q. Yeah.
A. Like…
Q. Yeah.
A. … killed, obviously…
Q. Exactly, yeah.
A. … or whatever.
…
A. I just don’t want my name… I just don’t…
Q. Yeah.
A. … want… I… my life’s been fucked up enough, like…
Q. Right, you…
A. …internally, like, I…
Q. Obviously, if you could… if you didn’t… if everything worked out and you didn’t have to go to court, that would be the best thing…
A. Option.
Q. Best option ever.
A. They need… obviously, I don’t know what kind of other evidence you guys have, but…
Q. Uh-huh.
A. … by the sounds of it, like, he’s pretty guilty.
Q. Yeah.
A. And, like, he deserves to take responsibility for his actions, like, obviously, and that’s… a hundred percent agree with you there, that’s fucked, but, like, if it comes down to it, like, if I have to, like…
…
Q. So… so Pookiel, he saw everything that you pretty well saw, did he?
A. Yeah, he was with me there.
Q. He was right beside you.
A. Yeah.
Q. He saw everything, and when you guys were… obviously, you talked about it later on. Did… did he recall anything more that… you know, do you remember if he’s… had more detail or anything like that, or did he see the same type…
A. Yeah.
Q. … (inaudible) like, just…
A. He was just, like, more suppressed. I think he just wanted to, like… like, obviously, like, he’s got… like, didn’t really want to talk about it, like, he was just, like…
Q. Okay.
A. Like, he was with all of us all night, like, he…
Q. Oh yes, yeah, yeah, no.
A. Yeah, like, he’s…
Q. We know… we’re…
A. Yeah, okay.
Q. We’re confident in that.
A. Yeah.
Q. We’re… I guess what we’re just trying to figure out, like, you know, we’ll… we’ll ha… we still have to go and speak with him again.
A. Yeah, for sure.
Q. And does he… does he know that any… does he know that you… he obviously doesn’t know that you were coming here.
A. No, no one knows I’m here…
Q. Okay, and I mean…
A. … today.
Q. … the… he… he probably won’t know that… unless you tell him, I guess, that you know…
A. I almost wanted to go… and I don’t know how, like, any of the justice system works here, but I almost wanted to go into the jail and be, like, I’m tired, man, like, what’s going on, like, you need to come clean, like, tell me if I’m… am I being pursued, like.
Q. Yeah.
A. And then, obviously, like, I feel like that was a recording place, like, they’d probably be, like…
Q. Yeah.
A. And then, obviously, because I didn’t tell you guys in a place I could get in trouble, so I, like…
Q. Right.
A. … assisted.
Q. Yeah, yeah, that was something you were thinking of doing, you mean?
A. Yeah, like…
Q. Okay.
A. … stuff like that played in my mind all the time and I was just, like…
Q. Okay.
A. As time went on, I felt better and better about not being, like… come after, so I was…
Q. Right.
A. …like …
Q. Yeah.
A. I was, like, man, like, I need to, like, get this… I need to tell someone, like, fuck.
Q. Yeah, no, you… Justin, you did the right thing.
A. And then when Bruce, like, came to me, and then I was, like, finally, someone came to me, like.
Q. Yeah.
A. Had a hard time reaching out because I didn’t trust anyone.
Q. Right.
A. And then I… I Googled Bruce online and I knew… I seen what he was about for years and years and what he did.
Q. Okay.
A. And I knew he wasn’t, like… yeah, I felt comfortable talking to him.
Q. Okay.
A. I let him in my house and I felt comfortable in my own house.
Q. Okay.
A. Yeah.
Q. All right, well, listen, I’m just going to go out and make sure that I didn’t forget anything else.
A. Yeah.
Q. And then we’re going to end it and… Do you have any questions for me or…
A. Just, like, should I call Kamal? I don’t have his number, but…
Q. You can… like, I mean, you… you… you can if you want.
A. Yeah, like, I should probably, like, let him know, like, I’ve come clean, like.
Q. But, I mean, that’s up to yourself. You don’t have to do any of that stuff. I mean…
A. I just… I don’t know, like, I don’t want him… I don’t know, I guess it doesn’t really matter, but I don’t know.
Q. I mean, we’ll… we’ll… we obviously will have to follow up with him.
A. Obviously, yeah.
Q. Wherever he is, we’ll… we can track him down, obviously, and we’ll just…
A. Yeah.
Q. … you know, say, you know, we know that you know-type thing.
A. Yeah.
Q. So, I mean, it’s up to you.
A. I just don’t want him… you guys to scare the fuck out of him.
Q. No.
A. That’s all I wanted to tell him, that…
Q. Yeah.
A. … I came clean and totally don’t worry.
Q. Yeah.
A. Like, it’s okay, man, like.
Q. Yeah.
A. I don’t want him to feel any way more than I know that we felt in the past year or whatever. It’s…
Q. I mean, it’s got to have been tough on you guys, so…
A. Oh my God, like, oh…
Q. All right, I’m just going to make sure everything is good, okay, and I think we’ll be done.
A. Yeah.
(Officer leaves room – 13:58:23 hrs)
(Officer returns – 13:58:27 hrs)
Q. All right, Justin, I think we’re good here. I’ll just get the time. It is… of course, I shut the phone off, shut them both off. Anyway…
A. Good for you.
Q. You got yours, have you?
A. Yeah, it’s not even a phone, it’s a wi-fi phone.
Q. Oh, perfect.
A. Yeah, I don’t have a phone. 1:58.
Q. 1:58, we’re all done.
A. That’s it.
Q. Okay? All right, Justin, we can get you…
A. But I do have an… an app. I think you guys have that number, maybe. I gave it to Bruce.
Q. Yeah.
A. … (inaudible)
Q. No, you know what, I… I might…
A. Yeah, yeah.
Q. Do you mind if I get it from you.
A. No, it’s a… it’s… it comes up as a British Columbia number.
Q. Okay.
A. Obviously, because I… I want it to look like I’m not around here.
Q. Yeah, no, that’s fine, maybe I’ll just…
[Emphasis added]
[23] After meeting with Blades and the police together on October 20, 2016, Webb contacted McCabe in Toronto through Facebook and then over the telephone. He told McCabe that he had spoken with Blades and what Blades had told him. McCabe then provided Webb with a new statement. Unbeknownst to McCabe, Webb then provided McCabe’s contact information to the police and advised them that they should also re-interview him.
[24] Within days of Webb’s suggestion, the police arrived unannounced at McCabe’s home and took a KGB statement from him which confirms much of Blades’ KGB statement regarding what he observed at 1210 Henry Street on August 15, 2015 at approximately 10:30 PM.
[25] The KGB statements of Blades and McCabe were taken by the police in October 2016. Those statements were immediately disclosed to Sandeson in their entirety with no vetting of Blades’ references to “Bruce”. However, the specific fact of Webb’s involvement in obtaining those statements was not disclosed until part way through the trial when McCabe had already completed most of his testimony.
[26] The following email exchange between Crown and defence dated May 8 and 9, 2017, which the Court was copied on, states:
Email from defence counsel, Eugene Tan, May 8, 2017, at 11:06 PM
Dear Ms. Murphy,
It has recently come to the attention of the defence that a matter of significant importance has arisen. A vague form of notice of this was initially provided by the Crown during the lunch break on Monday, May 8, 2017, but the full particulars were not disclosed until after Court closed.
It is our understanding that a member of the investigative firm retained by the defence for the purpose of fully preparing for this litigation divulged critical evidence that we say was the subject of solicitor-client privilege to the police, specifically to D/Cst. Joseph Allison. The full nature and extent of this disclosure has not been fully canvassed at this time; however, it appears at the very least the possible testimony of two civilian witnesses, Messrs. McCabe and Blades , which had not been in the possession of the police at that time, may have been provided to the police by this person.
Had this information been available at an earlier time, it may have been possible to hold a voir dire to consider the admissibility of the evidence of Messrs. McCabe and Blades. However, in our submission, the damage has been done by the admission of the evidence of Mr. McCabe. As a result, it is our request that the Court schedule a motion forthwith to consider a defence application for a mistrial.
…
Email from Crown counsel, Kimberley McOnie, May 9, 2017, at 8:31 AM
Good Morning Ms. Murphy,
I am sure that this matter will be addressed on the record this morning, but in response to my friend’s e-mail, we felt we should respond in relation to what information was known to the Crown. The statements from Pookiel McCabe and Justin Blades were taken in October 2016. At that time we were informed by police that Bruce Webb, who we were advised was a private investigator hired by the defence, had called police and told them they should re-interview Justin Blades (we believe the officer that received this information was Cst Jody Allison). That was the extent of detail of the “tip” that was provided to the Crown. In Mr. Blades statement he refers to a “Bruce” who had come and spoken to him and how he felt better after telling him about what happened that night . At the end of the statement Cst Allison asks Justin for his phone number and Justin says “I think you guys have that number maybe, I gave it to Bruce”. Cst Allison’s response was “Yeah”. The name “Bruce” was not redacted from the copy of the statement that was provided to defence. I further understand from defence counsel that they knew, or strongly suspected, that the “Bruce” referred to was the private investigator that they hired.
Late last week we were advised that Bruce Webb had claimed “informer privilege” when he called police and provided the information to call Mr. Blades. This was a surprise to us as the only thing we were told was that he wanted to be given a “head’s up” if his name was going to come up in Court.
After a discussion with Cst Allison, confirming this claim was made of “informer privilege”, we advised defence. Late yesterday we were advised that Mr. Webb was waiving any claim to informer privilege and we advised defence counsel of that last night.
Regards.
Email from Eugene Tan, May 9, 2017, at 8:47 AM
Good morning Ms. Murphy,
I have received Ms. McOnie’s email of this morning. Without getting into too much detail, I respectfully disagree with the suggested facts put forth by Ms. McOnie.
In particular, there was nothing in the statements or notes that were, after much delay, disclosed by the police, to suggest any involvement whatsoever of any informant; that is, I can confirm that the name “Bruce” was not redacted from the interviews, but was certainly in now way linked to a police informant.
Mr. Webb was asked about the appearance of his name in the interview on prior occasions by defence, and denied any involvement other than having met with Messrs. McCabe and Blades at the request of defence. I understand he was confronted by the lead investigator retained by the defence late last evening, and only then disclosed that he had mislead us previously. It was only after disclosure by the Crown yesterday afternoon of the existence of an informant that the information became forthcoming.
[27] Sandeson made a motion for a mistrial based on the mid-trial disclosure of the involvement of Webb in assisting the police obtain new statements from Blades and McCabe. A voir dire (VD7) was held in relation to the mistrial application that spanned nine court days.
[28] During VD7 the following witnesses testified: Det. Cst. Roger Sayer, Sgt. Derek Boyd, Staff Sgt. Richie Lane, Cpl. Jody Allison, Justin Blades, Pookiel McCabe, Sonja Gashus, Thomas Martin, Bruce Webb and Eugene Tan.
[29] Webb was called by Sandeson to testify on the mistrial voir dire. Neither Crown nor defence alerted the Court to the fact that Webb believed he had confidential informer status prior to testifying. However, during his testimony Webb stated that he believed he had confidential informer status and asserted that he had not waived privilege. The proceedings were stopped immediately and Webb was given time to seek legal counsel.
[30] Webb retained a lawyer and the Court entered into an in camera voir dire within the mistrial voir dire (VD7B) to determine whether his identity was protected by informer privilege. In R. v. Sandeson, 2017 NSSC 146, I ruled that Webb’s identity was not protected by informer privilege. All parties agreed that the facts elicited in VD7 and VD7B could be relied on jointly for each voir dire:
May 17, 2017
Tan: I just want to reiterate, I believe we had reached an agreement amongst all counsel yesterday that evidence that has been previously heard in voir dire 7 is applicable to voir dire 7A, 7B excuse me. Is that correct?
Planetta: We have. I agreed to that. I just, a footnote, wanted when I’m asking questions I’d ask for a little bit of latitude because I wasn’t here.
Court: Sure, that’s fine.
MacKay: That’s fine with the Crown. Yes.
May 29, 2017
Sarson: … I don’t think we put on the record the fact that both Crown and defence are in agreement that the evidence taken on voir dire 7B will apply to voir dire 7.
MacKay: That’s correct My Lord.
Court: Thank you.
[31] During these voir dires, the Crown stated that Allison had indicated to them that Webb had said he was prepared to waive informer privilege in order to avoid derailing the trial. The Crown also suggested that, in its view, there had never been a claim of informer privilege by Webb, and that if there had been, his name would have been redacted from the statements. Crown counsel continued:
COURT: When was the Crown aware that these statements from Mr. Blades and Mr. McCabe were facilitated by Mr. Webb? When did the Crown become aware of that?
MS. MACKAY: Well, we knew quite early on that there had been some new information come to light and that the police were going to take statements from Mr. Blades and Mr. McCabe and I don’t remember exactly when we knew that Mr., that there was a private investigator involved but it would have been certainly after that time, sometime. We got the statements, I’m not sure exactly when but I’d have to look, check back on any kind of emails. There have been a lot emails on this file as Your Lordship can appreciate but in regard to that, we certainly were aware at some point in time early on that, relatively early on, that there was a, it was through, I think it was really early on that it was through someone who had been acting as a private investigator. That the contact, that they had been twigged to go ask for it. We were, our understanding was that the information had not been, these are the details but that he has more to say and you should go back, which was basically enough of a hint to suggest, the police had never believed. The police did not believe that Mr. McCabe and Mr. Blades had been frank about what they had or hadn’t seen.
COURT: All I’m trying to figure out is, the Crown was aware shortly after receiving the KGB statements that they had been facilitated by a private investigator hired by Mr. Sandeson.
MS. MACKAY: I think that would be fair to say. I would want to check my notes to see exactly the timing of that but I think that would be a pretty fair assessment of it from what I recall at this time.
COURT: Okay. But that information, when was that information that these statements had been facilitated by a private investigator hired by the defence, when was that information given to the defence? Was that just earlier this week or was that way back in October?
MS. MACKAY: Well, specifically it would have been given to them earlier this week but I gotta say that in regard to the content of the Justin Blade statements, I had assumed that Mr., from the content of this that it would have been understood by the defence when they got this that it was their own investigator who was involved. In fact, we were, Ms. McOnie and I were quite surprised that that wasn’t something they already basically felt they knew.
COURT: Okay. That’s something that you thought.
MS. MACKAY: Yes
COURT: But the actual provision of that information wasn’t until this week?
MS. MACKAY: That’s correct, that would be correct
[32] Crown counsel went on to confirm that the assertion of informer privilege by Webb was unexpected, and only came to the Crown’s attention once he testified. Counsel continued:
MS. MACKAY: My Lord, Ms. McOnie reminded me that we weren’t told, we certainly were not told of any content of any statement obtained by the defence. Of course, the fact that the private investigator said, as we understood it, you should go talk to Blades. That would be enough of a tip to suggest that he was gonna change his story and say something other than what he had said in the original statement that he had given to the police. But, we weren’t provided any details, such as what was described here in testimony in regard to he saw blood or a body or anything like that of Taylor Sampson. We weren’t provided that type of specific detail so we were never, Ms. McOnie and I were not privy to any details of the investigation that was done by Mr. Webb apparently.
[33] The complete and unvetted KGB statements of Blades and McCabe were disclosed by the Crown to Sandeson in a timely fashion. What was not specifically disclosed was Webb’s involvement with the police in obtaining the October 2016 statements from Blades and McCabe.
[34] Corporal Allison testified on the voir dire that he knew Blades’ KGB statement mentioned “Bruce” and felt that anyone who knew the details of the file would be able to figure out what had happened. As a result, because he thought Webb was a confidential informant, he felt Blades’ statement should have been redacted to obscure references to “Bruce”. However, no such redaction occurred.
[35] The Crown confirmed during the voir dire that they did not disclose Webb’s involvement in the statement taking until mid-way through the trial in the middle of McCabe’s testimony in front of the jury. The police say they told the Crown that they considered Webb a confidential informant. The Crown said it was unaware that the police considered Webb a confidential informant. The Crown said that they did not hold back the information about Webb’s involvement because they believed he was a confidential informant. Rather, they believed the defence was already aware of Webb’s involvement because he was working for them. The Crown also thought that even if the defence team was not directly told of Webb’s involvement through the employment connection, the defence must have been alerted to Webb’s involvement when they read Blades’ KGB statement. The Crown said that they did not want to “rub salt in the wounds” by talking about Webb’s actions with the defence so they never mentioned it.
[36] The defence team said that they had no idea of Webb’s involvement until they were advised by the Crown during the trial. Tan said that upon receipt of the police KGB statements of Blades and McCabe, because they were taken so soon after Webb had obtained statements from them, he called Webb to ask what had happened. He said that Webb told him that he must have “leaned on them” too hard when taking their statements and this may have caused them to go to the police.
[37] Thomas Martin told the Court that as the principal of Martin & Associates, when he heard that the police had obtained statements from Blades and McCabe so soon after Webb had completed his interview tasks with those two men in October 2016, he was concerned. As a result of his concern, close in time to the statement taking, Martin asked Webb if he "in any way, shape or form" suggested or directed Blades to contact the police. Martin said that Webb denied any involvement in having Blades contact the police. He believed Webb and did not conduct any follow up investigation. Martin did not express his concern to Tan about Webb's possible involvement with the police statements from Blades.
[38] More specifically, Tan testified on the voir dire and said that he received the statements of Blades and McCabe from the Crown on November 8, 2016. On November 10, Tan called Webb because he was suspicious about the existence of the police statements, especially as they had been given so close in time to Webb’s taking statements from Blades and McCabe. During direct examination Tan stated:
A. The essence of the conversation was that I had been surprised that police statements had been taken, particularly in such relative close proximity to the time that he had met with two of those witnesses, that’s Mr. McCabe and Mr. Blades. I understand that he conducted his work between the 20th and 30th of October, these statements came at roughly that time frame, shortly, shortly thereafter. I was surprised. I said to him, Bruce, what happened here, what’s going on? Why would they have gone to the police? Um… his response to me was, you had told me to lean on them and I guess I leaned too hard. I should say that my instructions to him were in fact that he should be somewhat aggressive with them to see what they may or may not say if placed under pressure.
[39] During cross-examination of Tan the following exchange occurred:
Q. Okay, and so in there you saw that towards the end of the, the statement he said, I think you guys, referring to his own phone number, I think you guys have that number maybe, I gave it to Bruce, and the answer to that being yeah, and then said some other things and then he made reference three times to Bruce in there.
A. Correct.
Q. In fact, how good it had felt to speak with Bruce.
A. Right.
Q. Right, um… did that not make you think that there was a link there between Bruce Webb and the police having his phone number and contacting Mr. Blades?
A. No, not at all.
Q. Why not?
A. The heart of the matter that Mr. Webb was retained for, was one of confidentiality. He was under specific instructions. He had an agreement with the investigator that I had hired. I had met Mr. Webb in the past. I understood what his background was. I had been assured that confidentiality would be a top issue. Mr. Martin, who was the lead investigator that I had hired, had assured me in the past that confidentiality would be maintained. Um… Mr. Martin had reviewed with me his specific instructions to his investigators. I was satisfied that, um… there would not be any breaches of those protocols, so when I saw Mr. Webb’s, um… name or when I heard Mr. Webb’s name, when I heard Bruce, I certainly said, that is a little bit of a concern, but frankly it was also consistent with, um… with him having leaned, that was the expression I had used. To me it was consistent with him having leaned on them and, um… Mr. Blades having made a decision to go forward. So I didn’t question the, that he would have broken the, his confidentiality.
Q. And you did not ask the Crown about whether or not there was any connection either, did you?
A. No, I had no reason to. I understand the crown had an obligation to disclose that.
Q. What did you make of the statement that the police would have given Justin’s… would have Justin’s number because he had given it to Bruce? What did you make of that statement?
A. Um… I’m sorry, could, could you repeat that question?
Q. Yup, what did you make of the statement that the police would have Justin’s number because he had given it to Bruce?
A. I didn’t consider that at all at the time quite frankly. Mr. Blades was one that I had been advised in the past was somewhat easily confused and so I didn’t make anything of it.
[40] Tan had asked Webb to “lean on” or be aggressive with the witnesses to see how they would react. Tan wanted to know what the witnesses would say under pressure. Webb did what Tan asked. The problem for the defence is that when leaned on, Blades and McCabe provided Webb with statements that implicated Sandeson and Webb then told the police to re-interview them.
[41] Tan explained that he had been told that Blades was “easily confused”. He said he therefore thought nothing of Blades’ comment to the police that he (Blades) believed the police already had his telephone number because he had given it to “Bruce”. Tan did not follow up with the Crown about this comment as a result. Can Tan be said to have been duly diligent in these circumstances?
[42] There is nothing but the coincidence of the timing of the provision of the police statement from McCabe on October 27, 2016, just a few days after Webb had taken a statement from him, to have alerted Tan of the utility in making a disclosure request of the Crown regarding the circumstances of the taking of McCabe’s statement.
[43] Neither Martin, nor Tan, ever conducted follow up interviews with Blades, McCabe or Webb regarding this issue. Neither did Tan make any inquires of the Crown as to why Webb was mentioned in Blades’ KGB statement.
[44] Sandeson argues that due to the non-disclosure of Webb’s involvement with the police his s. 7 Charter right to a fair trial has been infringed. Because McCabe was already in the midst of testifying when he found out he says the only remedy is a mistrial.
[45] The Crown says that Sandeson should have known that Webb participated with the police merely by reading the KGB statement of Blades. The Crown points out that in his statement Blades mentions “Bruce” as providing him with the confidence to provide a statement. He said that Bruce made him feel comfortable. Most noteworthy they say is Blades’ reply to the police when the police asked for Blades’ telephone number and he said: “But I do have an… an app. I think you guys have that number, maybe. I gave it to Bruce.” Bruce Webb was clearly identified in Blades’ KGB statement as being involved in assisting Blades with the provision of his new statement. In his KGB statement Blades implied that the police and Webb were in communication with each other.
Crown Disclosure Obligations
[46] Section 7 of the Canadian Charter of Rights and Freedoms states:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[47] Section 11(d) of the Canadian Charter of Rights and Freedoms states:
11. Any person charged with an offence has the right
…
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; …
[48] In R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, the Crown resisted formalized disclosure obligations and the Supreme Court of Canada was required to consider the existence and scope of the Crown’s obligation to disclose. Sopinka J. discussed some of the objections to constitutionally guaranteeing a broad approach to Crown disclosure:
16. Finally, it is suggested that disclosure may put at risk the security and safety of persons who have provided the prosecution with information. No doubt measures must occasionally be taken to protect the identity of witnesses and informers. Protection of the identity of informers is covered by the rules relating to informer privilege and exceptions thereto … and any rules with respect to disclosure would be subject to this and other rules of privilege. With respect to witnesses, persons who have information that may be evidence favourable to the accused will have to have their identity disclosed sooner or later. Even the identity of an informer is subject to this fact of life by virtue of the "innocence exception" to the informer privilege rule … It will, therefore, be a matter of the timing of the disclosure rather than whether disclosure should be made at all. The prosecutor must retain a degree of discretion in respect of these matters. The discretion, which will be subject to review, should extend to such matters as excluding what is clearly irrelevant, withholding the identity of persons to protect them from harassment or injury, or to enforce the privilege relating to informers. The discretion would also extend to the timing of disclosure in order to complete an investigation. I shall return to this subject later in these reasons.
[49] Justice Sopinka went on to set the standard by which Crown and defence counsel have come to understand disclosure laws:
17. This review of the pros and cons with respect to disclosure by the Crown shows that there is no valid practical reason to support the position of the opponents of a broad duty of disclosure. Apart from the practical advantages to which I have referred, there is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice. … The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. Recent events have demonstrated that the erosion of this right due to non- disclosure as an important factor in the conviction and incarceration of an innocent person. In the Royal Commission on the Donald Marshall, Jr., Prosecution, Vol. 1: Findings and Recommendations (1989) (the "Marshall Commission Report"), the Commissioners found that prior inconsistent statements were not disclosed to the defence. This was an important contributing factor in the miscarriage of justice which occurred and led the Commission to state that "anything less than complete disclosure by the Crown falls short of decency and fair play" (Vol. 1 at p. 238).
[50] Justice Sopinka then outlined some of the parameters of Crown disclosure:
20. As indicated earlier, however, this obligation to disclose is not absolute. It is subject to the discretion of counsel for the Crown. This discretion extends both to the withholding of information and to the timing of disclosure. For example, counsel for the Crown has a duty to respect the rules of privilege. In the case of informers the Crown has a duty to protect their identity. In some cases serious prejudice or even harm may result to a person who has supplied evidence or information to the investigation. While it is a harsh reality of justice that ultimately any person with relevant evidence must appear to testify, the discretion extends to the timing and manner of disclosure in such circumstances. A discretion must also be exercised with respect to the relevance of information. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant. The experience to be gained from the civil side of the practice is that counsel, as officers of the court and acting responsibly, can be relied upon not to withhold pertinent information. Transgressions with respect to this duty constitute a very serious breach of legal ethics. The initial obligation to separate "the wheat from the chaff" must therefore rest with Crown counsel. There may also be situations in which early disclosure may impede completion of an investigation. Delayed disclosure on this account is not to be encouraged and should be rare. Completion of the investigation before proceeding with the prosecution of a charge or charges is very much within the control of the Crown. Nevertheless, it is not always possible to predict events which may require an investigation to be re-opened and the Crown must have some discretion to delay disclosure in these circumstances.
[51] In Sandeson’s case, it is Blades and McCabe who provided the material evidence, not Webb. Webb merely took statements from Blades and McCabe at the request of the defence, notified the police that they should (and why they should) re-interview Blades and McCabe, and assisted the police in locating them. While Webb does not have any evidence to provide directly related to the events of August 15, 2015, the night Taylor Samson disappeared, the circumstances of Webb’s obtaining statements from Blades and McCabe and his method of obtaining evidence from them might have some limited relevance to the defence.
[52] In R. v McNeil, 2009 SCC 3, Charron J. again reviewed the Crown’s disclosure obligations. She said, for the Court:
[17] The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court. Stinchcombe made clear that relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence (pp. 343-44). The Crown’s obligation survives the trial and, in the appellate context, the scope of relevant information therefore includes any information in respect of which there is a reasonable possibility that it may assist the appellant in prosecuting an appeal.
[18] While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession. The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure in the usual course may result in harm to anyone or prejudice to the public interest. The Crown’s exercise of discretion in fulfilling its obligation to disclose is reviewable by a court.
[19] As this Court confirmed in Mills, the Crown’s obligation under Stinchcombe to disclose the fruits of the investigation does not signify that no residual privacy interest can exist in the contents of the Crown’s file. It should come as no surprise that any number of persons and entities may have a residual privacy interest in material gathered in the course of a criminal investigation. Criminal investigative files may contain highly sensitive material including: outlines of unproven allegations; statements of complainants or witnesses — at times concerning very personal matters; personal addresses and phone numbers; photographs; medical reports; bank statements; search warrant information; surveillance reports; communications intercepted by wiretap; scientific evidence including DNA information; criminal records, etc. The privacy legislation of all 10 provinces addresses the disclosure of information contained in law enforcement files. [citations omitted]
[20] Implicit in the Crown’s broad duty to disclose the contents of its file under Stinchcombe are not the absence of any residual expectation of privacy, but rather the following two assumptions. The first is that the material in possession of the prosecuting Crown is relevant to the accused’s case. Otherwise, the Crown would not have obtained possession of it (O’Connor, at para. 12). The second assumption is that this material will likely comprise the case against the accused. As a result, the accused’s interest in obtaining disclosure of all relevant material in the Crown’s possession for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. These two assumptions explain why the onus is on the Crown to justify the non- disclosure of any material in its possession.
[53] In R. v. Egger (1993), 82 C.C.C. (3d) 193, [1993] 2 S.C.R. 451, the Supreme Court of Canada clarified that the Crown not only has a duty to disclose all information reasonably capable of affecting an accused’s ability to make full answer and defence, but also to disclose all information reasonably capable of affecting an accused’s ability to make full answer and defence early enough to leave the accused adequate time to take any steps they would be expected to take that affect or may affect such a right.
[54] These disclosure obligations extend to all material in the hands of the prosecuting entity. In McNeil, Charron J. stated:
22 Accordingly, the Stinchcombe disclosure regime only extends to material relating to the accused's case in the possession or control of the prosecuting Crown entity. This material is commonly referred to as the "fruits of the investigation".
23 Under our Canadian system of law enforcement, the general duty to investigate crime falls on the police, not the Crown. The fruits of the investigation against an accused person, therefore, will generally have been gathered, and any resulting criminal charge laid, by the police. While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in prosecutions: see, for example, s. 42(1)(e) of the Ontario Police Services Act. Of particular relevance here is the police's duty to participate in the disclosure process. The means by which the Crown comes to be in possession of the fruits of the investigation lies in the corollary duty of police investigators to disclose to the Crown all relevant material in their possession. The police's obligation to disclose all material pertaining to the investigation of an accused to the prosecuting Crown was recognized long before Stinchcombe. …
24 The corollary duty of the police to disclose to the Crown the fruits of the investigation is now well recognized in the appellate jurisprudence. ... It is also widely acknowledged that the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown. …
[55] The Crown did not overtly hide Webb’s involvement in taking the statement from Blades in that they did not edit Blades’ statement so as to obscure the references to “Bruce” ie. Webb. However, they did not expressly alert Sandeson to the nature of Webb’s involvement in obtaining the statements from Blades and McCabe.
[56] There was a reasonable possibility that knowledge of Webb’s assistance to the police in obtaining statements from Blades and McCabe could have assisted Sandeson in the exercise of his right to make full answer and defence. Although Webb personally has no material information to provide related to the events of August 15, 2015, his method of taking statements from Blades and McCabe could have some limited relevance to Sandeson.
[57] The Crown says that it never mentioned Webb’s involvement with Blades because they felt the defence should have been aware of his involvement, either because Webb worked for them, or, at a minimum, as a result of reading Blades’ October 20, 2016, KGB statement. A review of Blades’ KGB statement supports the Crown’s position in this regard. However, the Crown’s disclosure obligations are ongoing, and persist throughout the trial process.
[58] The circumstances of this situation are so peculiar that the Crown should have provided the defence with details regarding the involvement of Webb as soon as they obtained that information, whether or not they surmised that the defence was already aware of Webb’s interaction with the police. While the Crown should have disclosed Webb’s involvement in the police investigation right away, they did not withhold the disclosure for tactical or improper purposes.
Defence Obligation to Pursue Disclosure
[59] In R. v. Dixon, [1998] 1 S.C.R. 244, 1998 CanLII 805, Cory J. stated, for the Court:
37 In considering the overall fairness of the trial process, defence counsel’s diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown’s nondisclosure affected the fairness of the trial process. In Stinchcombe, supra, at p. 341, defence counsel’s duty to be duly diligent was described in this way:
Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v. The Queen, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.
The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure. This was aptly stated by the British Columbia Court of Appeal in R. v. Bramwell (1996), 1996 CanLII 352 (BC CA), 106 C.C.C. (3d) 365 (aff’d 1996 CanLII 156 (SCC), [1996] 3 S.C.R. 1126), at p. 374:
. . . the disclosure process is one which engages both the Crown and the defence. It is not one in which defence counsel has no role to play except as passive receiver of information. The goal of the disclosure process is to ensure that the accused is not denied a fair trial. To that end, Crown counsel must disclose everything in its possession which is not clearly irrelevant to the defence, but the defence must also play its part by diligently pursuing disclosure from Crown counsel in a timely manner. Further, where, as here, defence counsel makes a tactical decision not to pursue disclosure of certain documents, the court will generally be unsympathetic to a plea that full disclosure of those documents was not made. [Emphasis added]
[60] There is no evidence that the defence actually knew about Webb’s involvement in obtaining the statements from Blades or McCabe until they were advised by the Crown after McCabe was already testifying, in the middle of trial. However, the KGB statement of Blades itself reveals that Blades thought Webb was associated with the police. Tan was suspicious of the timing of the KGB statement in comparison with Webb’s statement taking. Nevertheless, the defence did not make any inquiries of the Crown about the timing or the repeated reference to “Bruce” in Blades’ statement. In my opinion, the defence ought to have followed up with the Crown once Blades’ KGB statement was received by them.
[61] There is no indication whatsoever that the defence failed to make the disclosure request for a tactical or improper purpose.
[62] The Crown's duty to disclose is not excused by the defence inaction, but the passivity of the defence in following up regarding the references to "Bruce" ie. Webb in Blades’ KGB statement has some significance in the overall analysis.
Remedies For Late Disclosure
[63] Sandeson wants a mistrial. The basic test for a mistrial is summarized in R. v. Folker, 2016 NLCA 1, 2016 CarswellNfld 23, where Hoegg J.A. said, for the majority, at para. 43:
43 A Judge's decision not to declare a mistrial is a discretionary one which must be based on proper legal principles and relevant considerations (R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857). The test is set out at paragraph 75:
In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice. ...
Green C.J. of this Court restated the test in R. v. Ryan (D.), 2012 NLCA 9, 318 Nfld. & P.E.I.R. 15 at paragraph 134:
The test for determining whether a declaration of a mistrial is indicated is, therefore, whether: (i) there is a real danger of prejudice to the accused; or (ii) it is necessary to prevent a miscarriage of justice. In reality, the danger of prejudice to the accused is a subset of ensuring that there is no miscarriage of justice.
[64] Sandeson provided a host of cases that he says supports his position. I will not refer to all of them, only selected ones. In R. v. McKillip, [1996] O.J. No. 747, 1996 CanLii 8144 (ONSC), disclosure of the investigating police officer's notes and reports was made following four days of trial. The defence sought a mistrial. O’Connor J. said:
[2] At the pretrial hearing on December 2, 1994, the defence advised the Crown it would be taking at least three positions, and perhaps others. The three were:
1. The complainant had a “hate on” for the accused and this provided a motive for her alleged false allegations.
2. She had lied previously about her “medical condition”.
3. She had previously made false accusations of sexual molestation against someone, not the accused, at the Meaford Base.
[3] The Crown wrote the investigating officer on December 5, 1994 asking him to, in effect, investigate these allegations. The officer did so and wrote the Crown on March 15, 1995 with his findings and attaching supporting documentation. Attached to his letter is a note in two different hands. The first part of the note, which it was agreed was in the handwriting of the Crown Attorney’s secretary, reads, “Ken, is this letter and attachments to be disclosed?” The handwriting at the bottom of the note, which is agreed is in the handwriting of Mr. Ken Rae, the Crown Attorney, reads as follows, “Not necc.—just file W/Brief, Rae, 16 June ’95.” It was agreed that, filling in the missing letters, what the note said was, “Not necessary, just file with the brief” and it is signed “Rae, 16 June 1995”.
[4] The investigating officer’s report and supporting documentation, numbering some 26 pages, including the note, was not disclosed to the defence. It came to light after the defence had substantially concluded cross-examination of the complainant. Clearly, the material should have been disclosed to the defence immediately upon its receipt by the Crown. Indeed, the investigating officer’s letter of March 15, 1995, reads in part:
I have compiled the following information for your attention and disclosure to defence counsel, Mr. Barrie. [Emphasis added]
[65] The defence in McKillip submitted that it would have proceeded differently in preparing and cross-examination had it been aware of the videotaped material, and gave specific examples. O’Connor J. said:
[9] The defence has convinced me it would have structured its cross-examination of the complainant differently had the undisclosed material been available to it. In any event, it should not be left to the Crown to decide whether material in its possession is relevant to the defence or not. If the material is “potentially relevant”, the words used in Chaplin at p. 200 C.R.R., p. 236 C.C.C., or “reasonably capable of affecting the accused’s ability to make full answer in defence”, R. v. Eggar (1993), 1993 CanLII 98 (SCC), 15 C.R.R. (2d) 193 at p. 202, 82 C.C.C. (3d) 193 at p. 203, or “of some use” Eggar, p. 202 C.R.R., p. 204 C.C.C., the Crown should disclose it.
[10] If there is any question or even any possibility that the material could be relevant to the defence, disclosure should be made so the defence may make the judgment on relevance. It is simply not the Crown’s decision to be made. There is no obligation on the defence to disclose to the Crown the nature or particulars of the defence. The Crown may, therefore, have no idea of a particular defence and thus, is not in a position to pass judgment on relevance. Out of an abundance of caution and good faith, it should disclose to the defence virtually everything it possesses pertaining to the case.
[11] The material at issue in this matter should have been disclosed. The Crown says further cross-examination of the complainant will remedy any harm done. I disagree. Such a conclusion presumes insight into the minds of the individual jurors, a tenuous proposition at best. Who knows with any certainty what small or large or significant or insignificant item of evidence, or even if the order in which pieces of evidence which are adduced, affects or sways a juror’s mind toward or away from a reasonable doubt. The conduct of the defence must be left entirely to the accused and his counsel. To require the defence to continue cross‑examination at this stage, and perhaps review ground covered with the recently disclosed material, permits the Crown, through its misconduct, a hand in the presentation of the defence. The defence should not be so restricted.
[12] In my view, the only remedies available include a stay or a mistrial. The defence argues the cost expended by the accused to date for his defence and the delay involved to receive a new trial would unduly prejudice him. Both of these difficulties can be overcome, the first by a costs award against the Crown, the second by commencing a new trial forthwith.
[66] Justice O’Connor granted a mistrial in McKillip in 1996. Two years later, in 1998, the Supreme Court of Canada made it abundantly clear in Dixon that not every violation of the Crown’s disclosure duties will result in an impairment of an accused’s right to full answer and defence such that a mistrial should be ordered:
31 The right to disclosure is but one component of the right to make full answer and defence. Although the right to disclosure may be violated, the right to make full answer and defence may not be impaired as a result of that violation. Indeed, different principles and standards apply in determining whether disclosure should be made before conviction and in determining the effect of a failure to disclose after conviction. For instance, where the undisclosed material is available for review at trial, the presiding judge will evaluate it in relation to the Stinchcombe threshold to determine whether the Crown breached its obligation to disclose by withholding the material. If it has, an order for production or perhaps an adjournment will be the appropriate remedy. Obviously, these remedies are no longer available after conviction. At this stage, an appellate court must determine not only whether the undisclosed information meets the Stinchcombe threshold, but also whether the Crown’s failure to disclose impaired the accused’s right to make full answer and defence. Where an appellate court finds that the right to make full answer and defence was breached by the Crown’s failure to disclose, the appropriate remedy will depend on the extent to which the right was impaired. Where, as here, the accused was tried before a judge alone, the judge has provided thorough reasons for the decision, and the undisclosed evidenced [sic] is available for review, an appellate court is particularly well placed to assess the impact of the failure to disclose on the accused’s ability to make full answer and defence at trial.
32 At this point, something should also be said about the standard to be met by an accused who asserts that the right to make full answer and defence was impaired. It is trite but worth repeating that in all cases where a person claims that a Charter right has been violated, he or she must prove on a balance of probabilities that the violation occurred. Thus, before granting any sort of remedy under s. 24(1), it must be found that it was more likely than not that the Charter right in question was infringed or denied. See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 277.
33 The evidence required to meet this burden and the factors to be considered will differ according to the particular right at issue and the particular remedy sought. For example, where a court is persuaded that undisclosed information meets the Stinchcombe threshold, an accused has met his burden to establish a violation of his Charter right to disclosure. As noted above, the appropriate remedy for such a violation is, at trial, an order for production or an adjournment. Where non‑disclosure is raised on an appeal from a conviction, an accused must, as a threshold matter, establish a violation of the right to disclosure. Further, the accused bears the additional burden of demonstrating on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose.
34 This burden is discharged where an accused demonstrates that there is a reasonable possibility the non‑disclosure affected the outcome at trial or the overall fairness of the trial process. See R. v. C. (M.H.), 1991 CanLII 94 (SCC), [1991] 1 S.C.R. 763, at p. 776; Stinchcombe, supra, at p. 348. Imposing a test based on a reasonable possibility strikes a fair balance between an accused’s interest in a fair trial and the public’s interest in the efficient administration of justice. It recognizes the difficulty of reconstructing accurately the trial process, and avoids the undesirable effect of undermining the Crown’s disclosure obligations. This would be the result if the Crown were placed in a better position by withholding rather than disclosing information of relatively low probative value. However, the reasonable possibility to be shown under this test must not be entirely speculative. It 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. If this possibility is shown to exist, then the right to make full answer and defence was impaired.
35 Once an accused establishes impairment of the right to make full answer and defence as a result of the Crown’s failure to disclose, he or she is entitled to a remedy under s. 24(1). Again, it is at this stage that the degree of impairment or prejudice to the accused’s rights must be assessed and considered in relation to the remedy sought. For example, an accused who seeks the extraordinary remedy of a stay of proceedings must not only establish, on a balance of probabilities, that the right to make full answer and defence was impaired, but must also demonstrate irreparable prejudice to that right. See Carosella, supra, at p. 112. By contrast, where the remedy sought is a new trial, an accused need only persuade the appellate court of the reasonable possibility that the failure to disclose affected either the outcome at trial or the overall fairness of the trial process, and nothing more.
36 Thus, in order to determine whether the right to make full answer and defence was impaired, it is necessary to undertake a two‑step analysis based on these considerations. First, in order to assess the reliability of the result, the undisclosed information must be examined to determine the impact it might have had on the decision to convict. Obviously this will be an easier task if the accused was tried before a judge alone, and reasons were given for the conviction. If at the first stage an appellate court is persuaded that there is a reasonable possibility that, on its face, the undisclosed information affects the reliability of the conviction, a new trial should be ordered. Even if the undisclosed information does not itself affect the reliability of the result at trial, the effect of the non‑disclosure on the overall fairness of the trial process must be considered at the second stage of analysis. This will be done 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 available to the defence if the relevant information had been disclosed. In short, the reasonable possibility that the undisclosed information impaired the right to make full answer and defence relates not only to the content of the information itself, but also to the realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence. [Emphasis added]
[67] In a companion case to Dixon, R. v. Skinner, [1998] 1 SCR 298, [1998] S.C.J. No. 20, the unanimous Supreme Court of Canada examined the failure to disclose during trial where defence counsel was duly diligent:
10 In these circumstances, did the Crown’s failure to disclose Daye’s statement affect the fairness of the trial process by depriving the defence of opportunities to garner evidence flowing from this statement? There is, I believe, a reasonable possibility that the defence could have garnered additional evidence flowing from this statement which may have been of use at trial.
11 The statement reveals (i) that Daye was an eyewitness; (ii) that Daye contradicts Clayton’s evidence in relation to at least one of the assaults; (iii) that Daye was able to fix the appellant’s location during the initial stages of the events, and thus, at some point, was in a position to observe the appellant; (iv) that Daye did not see the appellant hit anyone. Daye’s statement should have been disclosed to defence counsel. The failure to disclose it affected the fairness of the trial process since the defence was denied the opportunity to explore possible uses of this information.
12 For example, there is a reasonable possibility that had the undisclosed statement been produced by the Crown, it could have affected the defence’s decision not to call evidence. The defence may have chosen to call Daye as a witness to contradict Clayton’s testimony and challenge his credibility. On an appeal, it is impossible to reconstruct the trial process and determine exactly how the defence might have used the undisclosed statement. Yet there does appear to be sufficient relevant information contained in Daye’s statement that its possible utility to the defence is not a matter of pure speculation or fancy. It is reasonably possible that disclosure of this statement would have had an impact on the conduct of the defence at trial. I conclude therefore that non‑disclosure of this statement affected the fairness of the trial process and impaired the appellant’s right to make full answer and defence.
13 It is true that trial counsel for the appellant was aware long before the trial began that Daye was a potential eyewitness. Yet it is no answer to the impairment of the appellant’s right to make full answer and defence to say that defence counsel could have or should have interviewed Daye. Indeed, on appeal the issue to be considered is whether decisions made at trial would have been different if the undisclosed information had been available.
14 It is also true that if the Crown has disclosed alternative sources of the same information contained in the undisclosed material, the Crown has fulfilled its disclosure obligations. In this regard, the disclosure of the summary of Daye’s statement in the police occurrence report must be considered. It reveals (i) that Daye was an eyewitness, which counsel for the appellant would already have known; (ii) that Daye observed two circles around Darren Watts; and (iii) that Daye was able to identify Charman’s assailants. However, the summary does not include any reference to Daye’s statements concerning the appellant and his actions on the night in question. Thus, the appellant was deprived of this information, and it cannot be said that the Crown disclosed an alternative source of the information contained in Daye’s statement to the police.
15 This appeal does not involve either a tactical decision at trial or a failure to exercise due diligence in pursuing disclosure. In the circumstances of this case it must be concluded that there is a reasonable possibility the fairness of the trial process was adversely affected by the Crown’s failure to disclose Daye’s statement. As a consequence, the appellant’s right to make full answer and defence was impaired.
[68] The Crown did not formally disclose Webb’s involvement until part-way through the trial. Blades’ and McCabe’s KGB statements and eventual testimony at trial were material evidence against Sandeson. However, the information about Webb’s involvement in suggesting to the police that they interview those men was not material evidence against Sandeson. The evidence about Webb merely explains how the statements from Blades and McCabe were obtained in October 2016. While there is a reasonable possibility that the involvement of Webb has some relevance, the materiality of Webb’s involvement with the police in obtaining statements from Blades and McCabe is relatively low. Therefore, although there may have been a violation of Stinchcombe principles, the infringement of Sandeson’s right to a fair trial was insignificant. As Cory J. went on to explain for the unanimous court in Dixon:
38 Whether a new trial should be ordered on the basis that the Crown’s non‑disclosure rendered the trial process unfair involves a process of weighing and balancing. If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial. See R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501, at pp. 502‑3.
39 In sum, all these factors must be appropriately balanced. In situations where the materiality of the undisclosed evidence is, on its face, very high, a new trial should be ordered on this basis alone. In these circumstances, it will not be necessary to consider the impact of lost opportunities to garner additional evidence flowing from the failure to disclose. However, where 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. To that end, the due diligence or lack of due diligence of defence counsel in pursuing disclosure will be a very significant factor in deciding whether to order a new trial. This balancing process must now be applied to this appeal. [emphasis added]
[69] In R. v. Illes, 2008 SCC 57, [2008] S.C.J. No. 59, the majority ordered a new trial for an accused due the Crown’s violation of their disclosure obligations. LeBel and Fish JJ said:
[24] With respect to the fresh evidence not available to the defence at trial due to the Crown’s failure to disclose, a new trial is the appropriate remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms if the accused can show that his right to make full answer and defence was thereby violated. In order to discharge this burden, the accused can show either “that there is a reasonable possibility the non-disclosure affected the outcome at trial” or that it affected “the overall fairness of the trial process” (R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 34 (emphasis in original)).
[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 evidence would have made a difference to the trial outcome, but rather whether it could have made a difference. More precisely, the issue the appellate court must determine is whether there is a reasonable possibility that the additional evidence could have created a reasonable doubt in the jury’s mind. ...
[26] Our unanimous decision in Taillefer directs the court “not to examine the undisclosed evidence, item by item, to assess its probative value”, but rather “to reconstruct the overall picture of the evidence that would have been presented to the jury had it not been for the Crown’s failure to disclose the relevant evidence. Whether there is a reasonable possibility that the verdict might have been different must be determined having regard to the evidence in its entirety” (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 could have been used to impeach the credibility of a prosecution witness…, or could have assisted the defence in its pre-trial investigations and preparations, or in its tactical decisions at trial…
[28] The fresh evidence in issue here relates to an interview between the police and Michael Maze. According to the two withheld police accounts of the interview, Mr. Maze was present at Mr. Madinsky’s apartment at some point in the days following the murder. While at the apartment, he was shown the head of the victim stored in a white “Home Depot” bucket. One account of the meeting adds that Mr. Maze saw the bucket located on the balcony and that Mr. Madinsky and Mr. Illes were among the people at the apartment at the time.
[70] The significance of Maze’s evidence in Illes was that it provided potential grounds to impeach Madinsky (paras. 29-32). The majority concluded:
[33] Nevertheless, when added to the overall picture of the evidence, there is a reasonable possibility that the Maze evidence could have created a reasonable doubt in the jury’s mind. Most importantly, it could have tended to show that Mr. Madinsky — the only other possible shooter — was continuing to lie at trial. Mr. Madinsky claimed that his prior perjured statements were made in order to avoid reprisals from drug associates. The Maze evidence would have undermined this explanation by showing Mr. Madinsky to be lying about the circumstances of Dowling’s murder, not just prior drug transactions. Furthermore, the defence could have used the inconsistencies between the two accounts as evidence tending to support its theory that key parts of Madinsky’s testimony were fabrications intended to frame the accused for a murder that he himself had committed.
[71] Sandeson relies on the principles espoused by the majority in Illes respecting the disclosure issue:
[34] It is impossible to know whether any use of the Maze evidence would actually have changed the jury’s verdict. Fortunately, we need not answer that question. As noted above, under the first prong of the Dixon test, the appellant must only establish a reasonable possibility that the use of this missing evidence at trial could have raised a reasonable doubt in the jury’s mind. In light of the considerations just recited, we feel bound to conclude that such a possibility did indeed exist and that the accused is therefore entitled to a new trial.
[35] Even if the first prong of the Dixon test were not decisive, the same disposition is even more clearly warranted under the second prong of that governing test, which requires a new trial if there is a reasonable possibility that the overall fairness of the trial process was jeopardized. In this case, the non-disclosure of the Maze evidence prevented the defence from mounting a more effective attack on Mr. Madinsky’s testimony at trial, as we explained at paras. 27-32.
[36] Furthermore, the non-disclosure may have affected the defence’s strategic decisions at trial, another way in which the overall fairness of the trial could have been jeopardized. In Skinner, this Court held that a new trial was warranted where there was a reasonable possibility that disclosure of a withheld statement could have affected the defence’s decision not to call evidence. The situation is much the same in this case. The defence did not call any witnesses. Had the withheld evidence been available, it may well have chosen to call Mr. Maze to impeach Mr. Madinsky or for other reasons.
[37] Unlike Justice Charron, we are not persuaded “that the defence’s failure to seek [Maze] out as a witness suggests that he had no helpful evidence to offer” (para. 69). Without the benefit of the undisclosed evidence, the defence was in no position to make the informed decision to which it was entitled by law. In this case, the failure of the defence to approach Mr. Maze is entirely understandable. Without the undisclosed evidence, the defence had no reason to expect that Maze, a drug trafficker, would testify truthfully as to the circumstances in which he saw the severed head in the bucket. Furthermore, the defence and the Crown would both know from the disclosure that Mr. Maze had given some of the relevant evidence as a Crown witness in the R. v. Polo case (see B.C. Court of Appeal judgment, at paras. 106-7). It seems reasonable to expect that this could well have tempered any concerns the defence might have had that he would become an easy target for impeachment, in view of his criminal past. Defence counsel’s failure to seek him out may well have reflected these considerations — both of which would have been mitigated had the withheld evidence been disclosed — rather than a determination that Mr. Maze’s evidence would have been unhelpful.
[38] Because there is a reasonable possibility that the absence of Mr. Maze’s testimony (i) deprived the defence of the opportunity to impeach Mr. Madinsky on additional important grounds, and (ii) may have affected the defence counsel’s trial strategy, we have concluded that the non-disclosure affected the overall fairness of the trial and that a new trial is warranted under this prong of the Dixon test as well.
[72] In Sandeson’s case, the facts are much different than those in Illes. Webb was not a material witness to the events of August 15, 2015. He merely told the police that they should re-interview Blades and McCabe and briefly explained why he was making this suggestion. Webb then met with the police when they showed up to ask Blades if he would provide a new statement. Blades had previously met and been interviewed by Allison in 2015, so he was known to the investigating officers. Webb had no further involvement with Blades.
[73] The defence also relies on R. v. Fineline Circuits Ltd., [1991] O.J. No. 3463 (Ont. Ct. Just.- Prov. Div), a case that involved an investigation pre-Stinchcombe, wherein Cole Prov. J. found at para. 14 that “considerable information which either was or should have been in the possession of the prosecuting authorities had not been disclosed to the defence in advance of the trial.” Such evidence included a 23-page journal prepared by one of the Crown witnesses, the investigators notes about his interview with that witness and photographs taken during her interview. One of the investigators then revealed that he had not disclosed the notes of another witness, nor had he disclosed “many statements, test results, photographs and other materials” (para. 19). Judge Cole discussed the lack of disclosure and stated:
27 In the case at bar, there were, in my view, at least two significant failures of disclosure by the prosecution. The first was the considerable volume of notes, photographs, certificates of analysis and other materials which Mr. McManus did not include in his brief, and of which Crown counsel was consequently unaware. Second, and more significant, was Crown counsel's failure to turn over Mrs. Davies's notes to the defence as soon as she became aware of their existence, approximately one week before trial. In my judgment those errors have rendered the trial fundamentally unfair, and have caused a breach of the defendants' s. 7 Charter rights. The more difficult issue, and the one which has caused me to detail my reasons, is the question of what remedy is now appropriate.
[74] In finding that a mistrial was appropriate in Fineline Circuits Ltd., Cole Prov. J. stated:
38 In R. v. B.(S.) (1990), 75 O.R. (2d) 646, my brother James Prov. J. considered a situation somewhat parallel to the case at bar. In the middle of a trial of several alleged young offenders, it came to light that, through inadvertence, four police "will say" statements had not been disclosed to the defence. The Crown offered to recall prior witnesses for further cross-examination. Not unnaturally, the defence took the position that had they received this disclosure at the outset they would have revised defences or asked other questions of the witnesses who had already given evidence. After referring to a policy statement of the Attorney General of Ontario on disclosure, in a brief judgment James Prov. J. succinctly stated (at p. 650):
"Adjournments will not cure the defect in this disclosure process. Recall, however graciously offered by the Crown, will not effectively restore the accused's options."
39 A similar conclusion was reached by Potts J. in R. v. Leblanc (1990), 75 C.R. (3d) 395, who discharged a jury, directed the Crown to produce disclosure, and ordered a new trial part way through a murder case because certain statements of Crown witnesses had not been provided to the defence. I am in full agreement with James Prov. J. and Potts J. that, absent questions such as actual or potential witness tampering or late discovery of the existence of Crown witnesses, failure to disclose information known to the Crown at the outset of its case will generally be fatal. I am further fortified in this conclusion by pointing out that immediately following that portion of the judgment in Stinchcombe concerning potentially more limited s. 7 liberty interests in summary conviction proceedings, Sopinka J. went on to remark:
"There are, however, two additional matters which require further elaboration of the general principles of disclosure outlined above. They are: (1) the timing of disclosure, and (2) what should be disclosed. Some detail with respect to these issues is essential if the duty to disclose is to be meaningful."
40 I read these remarks as equally applicable to summary and indictable matters. In comments which in my view are consistent with the Supreme Court's oft-expressed views of the need for information before waiver can properly be made Sopinka J. went on as follows:
"With respect to timing, I agree with the recommendation of the Law Reform Commission of Canada in both of its reports that initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead. These are crucial steps which the accused must take which affect his or her rights in a fundamental way.
It will be of great assistance to the accused to know what are the strengths and weaknesses of the Crown's case before committing on these issues ... At this stage the Crown's brief will often not be complete and disclosure will be limited by this fact. Nevertheless, the obligation to disclose is a continuing one and disclosure must be completed when additional information is received." (Emphasis added.)
41 I therefore infer that the judgments in B.(S.) and Leblanc on this point have been implicitly approved by the Supreme Court of Canada, Neither an offer to recall witnesses nor an adjournment can cure a substantive breach of the right to receive timely and full disclosure. As noted by Potts J. in Leblanc, supra (at p. 400 C.R.):
"[I]t is no remedy to say that any changes to the defence strategy necessitated by the recent disclosure of ... statements can be effected for the remainder of the trial for witnesses not yet called to give evidence if the new information would also have affected the cross-examination of witnesses already called ..."
[75] In R. v. Burke, [2002] 2 S.C.R. 857, Major J. reiterated the clear test for a mistrial:
75 In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice. It may be fitting to allow the announced verdict to stand where the period the accused has been at liberty and under the mistaken impression that he or she had been acquitted has been lengthy, and where the charge is not so egregious as to bring the administration of justice into disrepute. As has already been stated, the trial judge is in the best position to assess the circumstances of each individual case and select the most appropriate remedy. [Emphasis added]
[76] In the unique circumstances of Sandeson’s case, I had the opportunity to view approximately seven weeks of the eight-week trial prior to determining whether Sandeson would suffer a miscarriage of justice if I did not rule in his favour on the mistrial application.
[77] In R. v. Selvanayagampillai, 2010 ONCJ 278, [2010] O.J. No. 3028 (Ont. Ct. Just.), the Court rejected the defence mistrial application based on delayed Crown disclosure. In that case, a police officer provided new information during his trial testimony. Additionally, mid-trial the Crown advised the defence that an exhibit had been submitted for forensic testing and then provided the test results. Police notes may also have been outstanding. In considering the mistrial application, Bloomenfeld J. cited Burke, and stated:
[8] Other authorities speak specifically to the determination of whether a mistrial is appropriate where the complaint is a potential for injustice to the accused due to non or late disclosure. The Supreme Court of Canada decision in R. v. Dixon (1998), 1998 CanLII 805 (SCC), 122 C.C.C. (3d) 1, is a Charter case rather than a mistrial case. Nevertheless, Justice Cory’s reasons on behalf of the court appositely articulated the nature and significance of the defence right to disclosure, asserting at para. 22, that “where an accused demonstrates a ‘reasonable possibility’ that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has also established the impairment of his Charter right to disclosure.” Notably, at paragraphs 31 and 33, Justice Cory prescribed the appropriate remedy for non-disclosure prior to conviction as an order for production or perhaps an adjournment. On an appeal of conviction, the accused must establish not only the breach of the right to disclosure but also show on a balance of probabilities that the right to make full answer and defence was impaired due to that failure. This burden will be discharged where an accused demonstrates that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process. (See Dixon at paragraphs 33 to 39). As I indicated at the outset, the Crown here has conceded that the late disclosure constituted a breach of its disclosure obligations. Mr. Sokolski submits, however, that the late disclosure has not impaired the four accused gentlemen’s right to make full answer and defence and that any harm can be remedied by an adjournment and the recalling of prosecution witnesses for further cross-examination.
[78] Justice Bloomenfeld also referred to R. v. L.A.T., [1993] O.J. No. 1605 (Ont. A.). In L.A.T., the accused was charged with historical sex offences. The defence applied for a stay of proceedings or, in the alternative, a mistrial. In reviewing the basis for the defence application, Lacourciere J.A. stated for the unanimous court:
The first ground of appeal is that the learned trial judge erred in not declaring a mistrial by reason of the failure of the Crown to disclose a statement given to the police by Karen T., a sister of the complainant Carolyn T. The statement only came to light at the conclusion of the defence case, when the Crown applied to call Karen T. in reply. The failure of the Crown to make timely disclosure of the statement was inadvertent: the police had not produced said statement to the Crown prosecutor. The statement had been given to the police two days before the preliminary inquiry in March 1991 and before the defence request for disclosure. In it, the complainant allegedly told her sister, Karen T., that "a guy that she really trusted and really cared a lot about" had followed her on her bicycle to the back of the school in Kars and "forced her down with a chain and did things to her". The Crown did not intend to call Karen T. as a witness as her evidence with respect to the statement would have been inadmissible hearsay.
Defence counsel indicated that, had he known of the statement suggesting that a stranger had assaulted the complainant, he might not have re-elected trial by judge alone and would have conducted his cross-examination of Carolyn T. and of the expert differently. Defence counsel claimed that he had been "irrevocably prejudiced". He said in this respect:
I would respectfully submit that it is clear, simply from the passages that I have read, that, although, clearly there are things consistent with what the witness testified to, there are areas that would have certainly caused me to conduct my cross-examinations in a significantly different fashion, particularly as it relates to allegations that someone else did this to her, particular as it relates to the reality of threats to children who didn't exist at the time and what questions I would have put to the doctor. . . . . .
But in terms of prejudice to the accused, we're talking about the forum he would have elected, had I been aware of how I could have perhaps cross-examined differently or the approach I would have taken would have been different.
[79] No misfeasance was attributed to the Crown in relation to the late disclosure in L.A.T. The trial judge offered to all four of the accused further cross-examination in relation to certain of the Crown witnesses. The defence made a tactical decision to reject the trial judge’s offer in this regard. In determining that the convictions should be quashed and a new trial ordered, the Court stated:
Ever since the Crown's duty to disclose has been elevated to a constitutional imperative, courts have been interpreting the duty in a very strict fashion. In R. v. Fineline Circuits Ltd. (1991), 10 C.R. (4th) 241 (Ont. Prov. Div.) at p. 256, for example, Cole Prov. Div. J. noted that since Sopinka J. wrote in Stinchcombe, supra, at p. 343 S.C.R., p. 14 C.C.C., that "the obligation to disclose is a continuing one and disclosure must be completed when additional information is received", it followed that:
Neither an offer to recall witnesses nor an adjournment can cure a substantive breach of the right to receive timely and full disclosure.
In the present case, whether or not one agrees with the tactical decision of defence counsel not to avail himself of the offer to conduct further cross-examination of the complainant and experts, it cannot be said with certainty that the appellant was not prejudiced. The critical opportunity to attack the credibility of the complainant Carolyn T. was considerably, and arguably, irredeemably reduced.
It is apparent from the court's statement in Stinchcombe, supra, at p. 343 S.C.R., p. 14 C.C.C., previously quoted, that the disclosure of evidence by the Crown can affect the defence's election with respect to the mode of trial or to the plea. Defence counsel argued that the late disclosure by the Crown may have affected the accused's choice of forum and his decision to testify. While this argument would not necessarily succeed in every case, I would give effect to it in this case having regard, among other things, to the clear statement of defence counsel on the record. The late disclosure may also have affected the ability of defence counsel to attack the complainants' credibility, which was critical in this case.
[80] In Selvanayagampillai, Bloomenfeld J., distinguished L.A.T. on its facts and concluded:
[16] In reaching these conclusions I have applied the mistrial test employed in L.A.T. as well as the relevant dicta in Burke and Dixon. During oral argument I brought the attention of counsel to two more recent articulations of the test on a mistrial by the Ontario Court of Appeal in R. v. Chiasson, 2009 ONCA 789 (CanLII) and R. v. Toutissani, 2007 ONCA 773 (CanLII), [2007] O.J. No. 4364. In Chiasson, the court described a mistrial as “…appropriate where that remedy is necessary to prevent a miscarriage of justice: R. v. Burke, 2002 SCC 55 (CanLII), [2002] 2 S.C.R. 857 at para. 75. Other less extreme remedies, such as an appropriate mid-trial instruction, should be considered and rejected as inadequate before a mistrial is granted: R. v. Toutissani, [2007] O.J. No. 4364.” In R. v. Toutissani, Justice MacPherson on behalf of the court, adopted the approach taken by the summary conviction appeal court judge in quashing a mistrial granted by the trial court, stating that “…I explicitly endorse the application judge’s statement that ‘[t]he declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned.’”
[17] The language in Toutissani is somewhat suggestive of the test on a stay application. I do not, however, interpret Toutissani as equating the test on a mistrial application with the threshold for staying a charge. I have not limited my analysis to whether this falls into the category of the “clearest of cases.” Rather, I take both Toutissani and Chiasson as invoking the reasoning in Dixon, Burke and L.A.T. and mandating that a mistrial be granted where the delayed disclosure prejudices the right to full answer and defence or the fairness of the trial in a manner that cannot be rectified with an alternative remedy that allows the trial to continue.
[18] I am satisfied that any harm or prejudice occasioned by the late disclosure can be remedied by the combination of:
the opportunity to conclude the cross-examination of Constable Aikman and re-call other police witnesses as necessary to cross-examine them further in light of the new information; and
an adjournment of sufficient length to enable defence counsel to independently test the bottle if they wish and to determine how to incorporate the late disclosure into cross-examination of witnesses.
[81] Similar to Selvanayagampillai, Sandeson’s case is distinguishable from L.A.T. in several respects:
• The late disclosure of Webb’s involvement came as McCabe was testifying during the Crown’s case. The completion of McCabe’s examination came after the disclosure of Webb’s involvement. Blades had not yet testified. In L.A.T. the new statement was not disclosed until after the defence had closed its case and the accused had testified;
• Blades and McCabe, along with all other relevant witnesses, were made available on the voir dire, in the absence of the jury, for full cross-examination by Sandeson. He had a chance to completely discover all witnesses related to the late disclosure prior to the Crown’s closing its case;
• This is not a case like L.A.T. where a wholly new matter that could substantially undermine the credibility of the Crown’s main witness was disclosed for the first time at the end of the trial. McCabe and Blades were important Crown witnesses at trial, but Sandeson had been committed to trial on first-degree murder charges after the preliminary inquiry, prior to Blades’ and McCabe’s new statements. Additionally, the KGB statements of Blades and McCabe were disclosed to him in their entirety in November 2016. The involvement of Webb was referenced to some extent in Blades’ statement. Only one step in the process of obtaining the statements of Blades and McCabe, that is Webb’s full involvement, was introduced for the first time at trial;
• In L.A.T. counsel indicated that they would have made a different mode of election had they received timely disclosure. Mr. Sandeson is charged with murder. According to s.469, s. 471 and s.473 of the Criminal Code a judge and jury trial is presumptive for a murder charge. Sandeson does not suggest on this application that he would have requested a judge alone trial on the basis of Webb’s involvement; and
• Cross-examination of McCabe might have been differently nuanced or structured had Sandeson known about Webb’s involvement prior to trial, but there is no indication that the effectiveness of cross was reduced or altered by defence counsel not having the information about Webb’s involvement at the outset.
[82] L.A.T. was decided in 1993. Selvanayagampillai was decided in 2010. If there was any ambiguity regarding the broad range of remedies available in cases of delayed disclosure after the 1998 decision in Dixon, the Supreme Court of Canada reiterated the point in R. v. Bjelland, [2009] 2 S.C.R. 651. In Bjelland, Rothstein J. said for the majority:
[19] Here, we are concerned with aspects of the conduct of a criminal trial and of the operation of the justice system, where the courts have to pass upon the guilt or innocence of an accused. While the exclusion of evidence will normally be a remedy under s. 24(2), it cannot be ruled out as a remedy under s. 24(1). However, such a remedy will only be available in those cases where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system.
[20] Before being entitled to a remedy under s. 24(1), the party seeking such a remedy must establish a breach of his or her Charter rights. In a case of late disclosure, the underlying Charter infringement will normally be to s. 7. Section 7 of the Charter protects the right of the accused to make full answer and defence. In order to make full answer and defence, the Crown must provide the accused with complete and timely disclosure: see R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. The purpose underlying the Crown’s obligation to disclose is explained by Rosenberg J.A. in R. v. Horan, 2008 ONCA 589 (CanLII), 237 C.C.C. (3d) 514, at para. 26:
Put simply, disclosure is a means to an end. Full prosecution disclosure is to ensure that the accused receives a fair trial, that the accused has an adequate opportunity to respond to the prosecution case and that in the result the verdict is a reliable one.
[21] However, the Crown’s failure to disclose evidence does not, in and of itself, constitute a violation of s. 7. Rather, an accused must generally show “actual prejudice to [his or her] ability to make full answer and defence” (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 74) in order to be entitled to a remedy under s. 24(1).
[22] While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly. In R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trial fairness. She stated, at para. 45, that:
At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused.
[23] Apart from ensuring trial fairness, there is one other circumstance in which late disclosed evidence might be excluded. That is where to admit the evidence would compromise the integrity of the justice system.
[24] Thus, a trial judge should only exclude evidence for late disclosure in exceptional cases: (a) where the late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (b) where exclusion is necessary to maintain the integrity of the justice system. Because the exclusion of evidence impacts on trial fairness from society’s perspective insofar as it impairs the truth-seeking function of trials, where a trial judge can fashion an appropriate remedy for late disclosure that does not deny procedural fairness to the accused and where admission of the evidence does not otherwise compromise the integrity of the justice system, it will not be appropriate and just to exclude evidence under s. 24(1).
[25] This view is reflected in cases such as O’Connor that have considered whether a stay is the appropriate remedy for late or insufficient disclosure under s. 24(1). As L’Heureux-Dubé J., for the majority, stated in O’Connor, at para. 83:
In such circumstances [of late or insufficient Crown disclosure and a consequent s. 7 breach], the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Although the remedy for such a violation will typically be a disclosure order and adjournment, there 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.
[26] This statement recognized that the appropriate focus in most cases of late or insufficient disclosure under s. 24(1) is the remediation of prejudice to the accused, but that safeguarding of the integrity of the justice system will also be a relevant concern. Of course the prejudice complained of must be material and not trivial. For example, the exclusion of evidence may be warranted where the evidence is produced mid-trial after important and irrevocable decisions about the defence have been made by the accused. Even then, it is for the accused to demonstrate how the late disclosed evidence would have affected the decisions that were made. For purposes of trial fairness, only where prejudice cannot be remedied by an adjournment and disclosure order will exclusion of evidence be an appropriate and just remedy.
[27] There may also be instances where an adjournment and disclosure order may not be appropriate because admission of evidence compromises the integrity of the justice system. For example, as Rosenberg J.A. stated in Horan, at para. 31:
In some cases, an adjournment may not be an appropriate or just remedy if the result would be to unreasonably delay the trial of an in‑custody accused. In such a case, an appropriate remedy could be exclusion of the undisclosed evidence. However, the burden is on the accused to demonstrate that exclusion of the evidence was appropriate.
In other words, where an accused is in pre-trial custody, an adjournment that significantly prolongs the custody before trial may be seen as compromising the integrity of the justice system. The exclusion of evidence may also be an appropriate and just remedy where the Crown has withheld evidence through deliberate misconduct amounting to an abuse of process. Yet even in such circumstances, society’s interest in a fair trial that reaches a reliable determination of the accused’s guilt or innocence based on all of the available evidence cannot be ignored. This will especially be true where the underlying offense is a serious one: see O’Connor, at para. 78. In clear cases, however, the exclusion of evidence may be an appropriate and just remedy under s. 24(1) in order to preserve the integrity of the justice system. [Emphasis added]
[83] Justice Rothstein went on to detail the implication of a lack of Charter violations on the part of the police as well as a lack of deliberate, malicious or unethical misconduct on the part of the Crown. He stated:
[30] The question is, having regard to the interest of society in a fair trial, whether the prejudice to the appellant could have been cured by an adjournment and disclosure order. The trial judge’s concern was that an adjournment would simply be a reward to the Crown for its late disclosure. However, the integrity of the justice system was not at issue. Therefore, the trial judge had only to consider whether an adjournment and disclosure order was an appropriate remedy to cure the actual prejudice to the appellant’s right to a fair trial. This the trial judge did not do.
[84] In Bjelland, Rothstein J. determined that the appropriate remedy on the facts of that case was an adjournment to allow the accused to consider the new evidence against him:
[37] In the present case, the Crown provided the appellant with disclosure, albeit late. In light of the fact that disclosure was ultimately provided to the appellant, the appellant’s s. 7 right to make full answer and defence was not infringed by his inability to cross-examine the potential Crown witnesses at a preliminary hearing. The appellant was provided with a transcript of a videotaped KGB statement of one accomplice, as well as an agreed statement of facts that formed the basis for a guilty plea and sentencing of the other accomplice. This material provided the appellant with sufficient disclosure of the Crown’s case against him. The appellant could make full answer and defence as guaranteed by s. 7 of the Charter without the need to cross-examine these witnesses at a preliminary inquiry. The prejudice resulting to the appellant from this late Crown disclosure would therefore have been cured by an adjournment to provide the appellant with an opportunity to consider this new evidence against him.
[38] Unlike the exclusion of the impugned evidence ordered by the trial judge, an adjournment would have preserved society’s interest in a fair trial while still curing the prejudice to the accused. Had he properly directed himself, this should have been the remedy ordered.
[85] Disclosure of Webb’s involvement was produced in full to Sandeson midway through the trial. While the actions of Webb were highly peculiar and could possibly have some relevance to the defence, the involvement of Webb, which led to the police taking statements from McCabe and Blades in October 2016, does not, in and of itself, have any impact on a material issue at trial. Additionally, through the calling of evidence on VD7 and VD7B, Sandeson had a generous opportunity to fully discover, through the examination process,inhibited all witnesses relevant to this issue in the absence of the jury.
[86] The appropriate remedy in these circumstances is an adjournment and the opportunity for Sandeson to recall any witness necessary for further cross-examination. This would preserve society’s (and the accused’s) interest in a fair trial while still curing any possible prejudice to the accused.
Solicitor-Client Privilege and Litigation Privilege
[87] Sandeson initially claimed that Webb’s involvement fell under the umbrella of solicitor-client privilege. He argues that there was a violation of privilege as a result of Webb disclosing the contact information for Blades and McCabe, and disclosing generally what Blades and McCabe were saying about Samson’s disappearance. Sandeson argues that because all of the information was obtained by Webb while working for Sandeson, his s. 7 Charter right to a fair trial has been violated.
[88] This issue does not involve communication between Sandeson and his lawyers, or between the lawyers and Blades and McCabe. Instead, this issue involves communication between Webb, a private investigator working for the Sandeson defence team, and potential witnesses for the Crown at Sandeson’s trial. This is more in line with litigation privilege. As far as the Sandeson defence team was aware, the dominant purpose for Webb’s communication with Blades and McCabe was trial preparation. Tan wanted to know what these two men would say under pressure. He certainly found out.
[89] Crown and defence agree that in the context of proving solicitor-client privilege the burden is on the applicant, Sandeson, to prove on a balance of probabilities that solicitor-client privilege applies to these circumstances. The burden of proof for establishing privilege was confirmed in R. v. Bonnell, 2012 NBQB 34, and in R. v. Basi, [2009] 3 S.C.R. 389, at para. 39. In proving litigation privilege, I believe that the same burden applies to Sandeson.
[90] In Lizotte c. Avila Cie d'assurance du Canada, 2016 SCC 52, Gascon J. discussed litigation privilege on behalf of the unanimous court:
A. Characteristics of Litigation Privilege
[19] Litigation privilege gives rise to an immunity from disclosure for documents and communications whose dominant purpose is preparation for litigation. The classic examples of items to which this privilege applies are the lawyer’s file and oral or written communications between a lawyer and third parties, such as witnesses or experts: J.‑C. Royer and S. Lavallée, La preuve civile (4th ed. 2008), at pp. 1009‑10.
[20] Litigation privilege is a common law rule of English origin: Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81 (H.L.). It was introduced to Canada, including Quebec, in the 20th century as a privilege linked to solicitor‑client privilege, which at the time was considered to be a rule of evidence that was necessary to ensure the proper conduct of trials: A. Cardinal, “Quelques aspects modernes du secret professionnel de l’avocat” (1984), 44 R. du B.237, at pp. 266‑67. In an oft‑cited case, Jackett P. of the former Exchequer Court of Canada explained the purpose of litigation privilege, once known as the lawyer’s brief rule, as follows:
Turning to the “lawyer’s brief” rule, the reason for the rule is, obviously, that, under our adversary system of litigation, a lawyer’s preparation of his client’s case must not be inhibited by the possibility that the materials that he prepares can be taken out of his file and presented to the court in a manner other than that contemplated when they were prepared. What would aid in determining the truth when presented in the manner contemplated by the solicitor who directed its preparation might well be used to create a distortion of the truth to the prejudice of the client when presented by someone adverse in interest who did not understand what gave rise to its preparation. If lawyers were entitled to dip into each other’s briefs by means of the discovery process, the straightforward preparation of cases for trial would develop into a most unsatisfactory travesty of our present system.
(Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, at pp. 33‑34)
[21] Because of these origins, litigation privilege has sometimes been confused with solicitor‑client privilege, both at common law and in Quebec law: Royer and Lavallée, at pp. 1003‑4; N. J. Williams, “Discovery of Civil Litigation Trial Preparation in Canada” (1980), 58 Can. Bar Rev. 1, at pp. 37‑38.
[22] However, since Blank was rendered in 2006, it has been settled law that solicitor‑client privilege and litigation privilege are distinguishable. In Blank, the Court stated that “[t]hey often co‑exist and [that] one is sometimes mistakenly called by the other’s name, but [that] they are not coterminous in space, time or meaning” (para. 1). It identified the following differences between them:
• The purpose of solicitor‑client privilege is to protect a relationship, while that of litigation privilege is to ensure the efficacy of the adversarial process (para. 27);
• Solicitor‑client privilege is permanent, whereas litigation privilege is temporary and lapses when the litigation ends (paras. 34 and 36);
• Litigation privilege applies to unrepresented parties, even where there is no need to protect access to legal services (para. 32);
• Litigation privilege applies to non‑confidential documents (para. 28, quoting R. J. Sharpe, “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164‑65);
• Litigation privilege is not directed at communications between solicitors and clients as such (para. 27).
[23] The Court also stated that litigation privilege, “unlike the solicitor‑client privilege, is neither absolute in scope nor permanent in duration” (Blank, at para. 37). Moreover, the Court confirmed that only those documents whose “dominant purpose” is litigation (and not those for which litigation is a “substantial purpose”) are covered by the privilege (para. 60). It noted that the concept of “related litigation”, which concerns different proceedings that are brought after the litigation that gave rise to the privilege, may extend the privilege’s effect (paras. 38‑41).
[24] While it is true that in Blank, the Court thus identified clear differences between litigation privilege and solicitor‑client privilege, it also recognized that they have some characteristics in common. For instance, it noted that the two privileges “serve a common cause: The secure and effective administration of justice according to law” (para. 31). More specifically, litigation privilege serves that cause by “ensur[ing] the efficacy of the adversarial process” (para. 27) and maintaining a “protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate” (para. 40, quoting Sharpe, at p. 165).
[91] Justice Gascon went on to explain the breadth of litigation privilege variously:
[31] I find these three arguments to be without merit. Although litigation privilege is distinguishable from solicitor‑client privilege, the fact remains that (1) it is a class privilege, (2) it is subject to clearly defined exceptions, not to a case‑by‑case balancing test, and (3) it can be asserted against third parties, including third party investigators who have a duty of confidentiality.
...
[33] In my opinion, litigation privilege is a class privilege. Once the conditions for its application are met, that is, once there is a document created for “the dominant purpose of litigation” (Blank, at para. 59) and the litigation in question or related litigation is pending “or may reasonably be apprehended” (para. 38), there is a “prima facie presumption of inadmissibility” in the sense intended by Lamer C.J. in R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263:
The parties have tended to distinguish between two categories: a “blanket”, prima facie, common law, or “class” privilege on the one hand, and a “case‑by‑case” privilege on the other. The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule). [Emphasis deleted; p. 286]
...
[37] This means that any document that meets the conditions for the application of litigation privilege will be protected by an immunity from disclosure unless the case is one to which one of the exceptions to that privilege applies. As a result, the onus is not on a party asserting litigation privilege to prove on a case‑by‑case basis that the privilege should apply in light of the facts of the case and the “public interests” that are at issue (National Post, at para. 58).
...
[41] What must be done therefore is to identify, where appropriate, specific exceptions to litigation privilege rather than conducting a balancing exercise in each case. In this regard, the Court held in Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, that the exceptions that apply to solicitor‑client privilege are all applicable to litigation privilege, given that solicitor‑client privilege is the “highest privilege recognized by the courts” (para. 44). These include the exceptions relating to public safety, to the innocence of the accused and to criminal communications (paras. 52‑59 and 74‑86). They also include the exception to litigation privilege recognized in Blank for “evidence of the claimant party’s abuse of process or similar blameworthy conduct” (para. 44).
[42] Other exceptions may be identified in the future, but they will always be based on narrow classes that apply in specific circumstances.
...
[64] There is of course no question that litigation privilege does not have the same status as solicitor‑client privilege and that the former is less absolute than the latter. It is also clear that these two privileges, even though they may sometimes apply to the same documents, are conceptually distinct. Nonetheless, like solicitor‑client privilege, litigation privilege is “fundamental to the proper functioning of our legal system” (Blood Tribe, at para. 9). It is central to the adversarial system that Quebec shares with the other provinces. As a number of courts have already pointed out, the Canadian justice system promotes the search for truth by allowing the parties to put their best cases before the court, thereby enabling the court to reach a decision with the best information possible: … The parties’ ability to confidently develop strategies knowing that they cannot be compelled to disclose them is essential to the effectiveness of this process. In Quebec, as in the rest of the country, litigation privilege is therefore inextricably linked to certain founding values and is of fundamental importance. That is a sufficient basis for concluding that litigation privilege, like solicitor‑client privilege, cannot be abrogated by inference and that clear, explicit and unequivocal language is required in order to lift it.
[92] Lizotte clearly defined litigation privilege as a class privilege. The question remains, in the peculiar circumstances of this situation, was Sandeson's litigation privilege actually compromised? In General Accident Assurance Co. v. Chrusz (1999), 180 D.L.R. (4th) 241, 1999 CarswellOnt 2898 (Ont. C.A.), Doherty J.A., in partial dissent, when discussing solicitor-client privilege, noted:
[90] The privilege extends to communications in whatever form, but does not extend to facts which may be referred to in those communications if they are otherwise discoverable and relevant…
[93] In Solicitor-Client Privilege, Dodek discusses whether facts are privileged, and writes:
5.11 The privilege only protects communications between client and solicitor. It does not protect the underlying facts which may be communicated by a client to her solicitor. The Supreme Court has endorsed the following passage by Jackett P. in Susan Hosiery Ltd. v. Minister of National Revenue, speaking of both solicitor-client and litigation privilege:
What is important to note about both of these rules is that they do not afford a privilege against the discovery of facts that are or may be relevant to the determination of the facts in issue. What is privileged is the communications or working papers that came into existence by reason of the desire to obtain a legal opinion or legal assistance in the one case and the materials created for the lawyer’s brief in the other case. The facts or documents that happen to be reflected in such communications or materials are not privileged from discovery if, otherwise, the party would be bound to give discovery of them.
In the same case, Jackett P. further explained:
… whether we are thinking of a letter to a lawyer for the purpose of obtaining a legal opinion or of a statement of facts in a particular form requested by a lawyer for use in litigation, the letter or statement itself is privileged but the facts contained therein or the documents from which those facts were drawn are not privileged from discovery if, apart from the facts having been reflected in the privileged documents, they would have been subject to discovery. For example, the financial facts of a business would not fall within the privilege merely because they had been set out in a particular way as requested by a solicitor for purposes of litigation, but the statement so prepared would be privileged.
Another way to think of this rule is that the raw material that serves as the basis of a communication between client and lawyer is not privileged but the communication itself is. The use that the lawyer makes of the facts to render legal advice is also privileged.
[94] Dodek warns against trying to take the distinction between fact and communication too far in the context of litigation privilege:
5.13 The distinction between fact and communication cannot be pressed too far, however, lest it infringe on the solicitor-client relationship. This is the message from the Supreme Court of Canada in Maranda v. Richer. In that case, the Supreme Court had to decide whether a lawyer’s accounts were privileged… The court only considered that the Crown was seeking the gross amount of the lawyer’s fees and no other explanatory information. It called into question the distinction between facts and communications, stating:
That rule cannot be based on the distinction between facts and communication. The protection conferred by the privilege covers primarily acts of communication engaged in for the purpose of enabling the client to communicate and obtain the necessary information or advice in relation to his or her conduct, decisions or representation in the courts. The distinction is made in an effort to avoid facts that have an independent existence being inadmissible in evidence…
5.14 The Supreme Court in Maranda quoted approvingly from the statement in Sopinka on Evidence that “[t]he distinction between ‘fact’ and ‘communication’ is often a difficult one and the courts should be wary of drawing the line too fine lest the privilege be seriously emasculated”. Sopinka on Evidence provides the example of a case where the court refused to force a party to disclose whether she had delivered certain minutes of a meeting to her solicitor. The minutes themselves would have to be disclosed whether in possession of the client or the solicitor, but the matter of their delivery to the solicitor, if that was the case, would not have to be disclosed.
[95] In Maranda v. Richer, 2003 SCC 67, LeBel J. wrote for the unanimous court about solicitor-client privilege in the context of criminal law and stated:
12 The decisions of this Court have consistently strengthened solicitor-client privilege, which it now refuses to regard as merely an evidentiary or procedural rule, and considers rather to be a general principle of substantive law (see Lavallee, Rackel & Heintz, at para. 49). The only exceptions to the principle of confidentiality established by that privilege that will be tolerated, in the criminal law context, are limited, clearly defined and strictly controlled… The aim in those decisions was to avoid lawyers becoming, even involuntarily, a resource to be used in the criminal prosecution of their clients, thus jeopardizing the constitutional protection against self-incrimination enjoyed by the clients. In determining the propriety of the authorization and execution of the search in Mr. Maranda’s office and examining the problem of the confidentiality of the information about the fees and disbursements billed to his clients, care must be taken to follow the general approach that can be seen in this Court’s decisions in this area.
[96] Nonetheless, the distinction between facts and communications does exist. Dodek states:
5.15 While the distinction between facts and communication is problematic and must be applied with care, the distinction persists. Soon after its decision in Maranda, the Supreme Court decided Foster Wheeler which dealt with the advocate’s duty of professional secrecy under Quebec Civil Law. The Court said:
Despite the intense nature of the obligation of confidentiality and the importance of professional secrecy, not all facts and events that lawyers deal with in the execution of their mandates are covered by professional secrecy, nor does the legal institution of professional secrecy exempt lawyers from testifying about facts involving their clients in all situations. To illustrate, let us take the case of a lawyer who holds discussions with a client while riding as a passenger in the client’s car. In the event of an accident, the lawyer would not be competent to testify about the opinion he or she was giving the client at the time of the incident, but could be forced to answer questions regarding whether the car was travelling above the speed limit. We must use an analytical method that upholds professional secrecy while allowing us to resolve difficulties of this sort.
Thus, the distinction between “facts” and “communications” persists. Not everything that a lawyer does in connection with a client is covered by the privilege. However, the closer the purported “fact” is to the solicitor-client relationship, the more likely it is that a court will find that it is protected by the privilege. Thus, in Maranda the Supreme Court found that the gross amount of lawyer’s billings was protected by the privilege but in Foster Wheeler the example it provided for was clearly outside the core of the solicitor-client relationship.
[97] If the distinction between facts and communications is recognized, but carefully applied in the context of a solicitor-client relationship, there is no reason it should not also be very carefully applied in the context of litigation privilege, even in the criminal law context. As Dodek notes, the courts are more protective of the solicitor-client relationship in criminal cases:
5.16 Moreover, the Supreme Court seems to have indicated a willingness to apply the distinction less stringently in criminal cases than in civil cases; i.e., the Supreme Court is more protective of the lawyer-client relationship in criminal cases. I believe that this reflects the expansion of the privilege by Canadian courts to protect the solicitor-client relationship more broadly, especially in criminal cases where that relationship is subject to express constitutional protection under section 10(b) of the Canadian Charter of Rights and Freedoms. Still, the distinction is disfavoured and will likely be applied narrowly. For this reason, pre-Maranda cases should be treated with caution.
[98] In emphasizing the care with which solicitor-client privilege must be handled in the context of a criminal case, LeBel J. said in Maranda:
28 The problem here must be solved in a way that is consistent with the general approach adopted in the case law to defining the content of solicitor-client privilege and to the need to protect that privilege. In the context of criminal investigations and prosecutions, that solution must respect the fundamental principles of criminal procedure, and in particular the accused’s right to silence and the constitutional protection against self-incrimination.
29 Because this Court is dealing here with a criminal case, we must not overestimate the authority of Kruco or of other judgments that may have been rendered in civil or commercial cases. Kruco, for example, dealt with a completely different, commercial law matter, one that was governed by the law of evidence and the civil procedure of Quebec… An application by the Crown for information concerning defence counsel’s fees in connection with a criminal prosecution involves the fundamental values and institutions of criminal law and procedure. The rule that is adopted and applied must ensure that those values and institutions are preserved.
30 That rule cannot be based on the distinction between facts and communication. The protection conferred by the privilege covers primarily acts of communication engaged in for the purpose of enabling the client to communicate and obtain the necessary information or advice in relation to his or her conduct, decisions or representation in the courts. The distinction is made in an effort to avoid facts that have an independent existence being inadmissible in evidence (Stevens, supra, at para. 25). It recognizes that not everything that happens in the solicitor-client relationship falls within the ambit of privileged communication, as has been held in cases where it was found that counsel was acting not in that capacity but simply as a conduit for transfers of…
31 However, the distinction does not justify entirely separating the payment of a lawyer’s bill of account, which is characterized as a fact, from acts of communication, which are regarded as the only real subject of the privilege. Sopinka, Lederman and Bryant, supra, highlighted the fineness of that distinction and the risk of eroding privilege that is inherent in using it (at p. 734, §14.53):
The distinction between “fact” and “communication” is often a difficult one and the courts should be wary of drawing the line too fine lest the privilege be seriously emasculated.
[99] Mr. Sandeson’s brother, Adam Sandeson, assisted Webb in locating Blades and McCabe. Webb took statements from Blades and McCabe. Webb may have made notes of his interviews with Blades and McCabe. Then Webb told the police they should re-interview Blades and McCabe. Webb told the police how to locate Blades and McCabe. Webb met with the police and Blades to help Blades feel comfortable in speaking with the police so that he would provide them with a statement.
[100] There are many civil cases confirming that reports prepared by private investigators, where the dominant purpose of obtaining such reports was preparation for litigation, are covered by litigation privilege: Order 126, [1989] O.I.P.C. No. 89; Laxton Holdings Ltd. v. Non-Marine Underwriters, [1988] S.J. No. 712 (Sask. C.A.); Webber v. Canadian Surety Co, [1992] N.S.J. No. 80 (N.S.S.C.-T.D.); Hanna v. Maritime Life Assurance Co., [1994] N.S.J. No. 601 (N.S.S.C.). Considering the dominant purpose test, the statements taken by Webb from Blades and McCabe, and the notes created by Webb, are covered by litigation privilege. However, in my opinion, the facts making up the statements of Blades and McCabe are not covered by litigation privilege. There was no breach of litigation privilege by the police in obtaining the KGB statements from Blades and McCabe, nor was there a violation of litigation privilege in hearing testimony from Blades and McCabe.
[101] In the alternative, if the information Webb provided to the police was covered by litigation privilege, Sandeson argues that a mistrial is the only appropriate remedy. A mistrial would allow him to present an argument that the murder charge should be stayed or that the evidence of Blades and McCabe should be excluded from any future trial. In making this argument, Sandeson relies on R. v. Bruce Power Inc. (2009), 98 O.R. (3d) 272 (Ont. C.A.), [2009] O.J. No. 3016 (C.A.), wherein Armstrong J.A. described the issues:
[2] In a prosecution under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the "OHSA"), the Crown sought to have admitted into evidence an investigation report found to be protected by solicitor-client privilege. The report was also found to have been obtained in breach of s. 8 of the Canadian Charter of Rights and Freedoms. A justice of the peace granted a stay of the charges against the appellants based on an abuse of process including breaches of ss. 7 and 11(d) of the Charter. On appeal to the Ontario Court of Justice, the stay of the charges was set aside. The appellants appeal to this court pursuant to the grant of leave to appeal.
[102] The Court went on to find:
[48] Although the justice of the peace referred to the report as primarily informational, she recognized that it was more than that. She pointed out that the report contained items that "could well be used to the disadvantage and prejudice of the defendants". In my view, it would be difficult, if not impossible, for a witness who has read the report to erase its contents from his or her consciousness. Moreover, it would be difficult, if not impossible, for the court to determine what effect the report may have had on a witness's testimony and whether the prosecutor's strategy has been indirectly, at least, affected by his witnesses having read the report.
[49] When one considers the lofty place that the protection for solicitor-client privilege holds in our law and its underlying rationale, it is simply not conceivable that the Inspector, in particular, could have been justified in taking the report into his possession -- given the finding by the justice of the peace that he knew of its status.
[50] What I find particularly surprising is that the Inspector did not testify on the motion before the justice of the peace to explain the conduct of the prosecution. The obvious inference to be drawn is that he had no credible explanation.
[103] The Court confirmed in Bruce Power Inc. that when there is a breach of solicitor-client privilege, prejudice is presumed:
[52] The answer to this question is clearly found in the reasons for judgment of Binnie J. in Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, at para. 3:
This Court's decision in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, makes it clear that prejudice will be presumed to flow from an opponent's access to relevant solicitor- client confidences. The major difference between the minority and majority in that case is that while the majority considered the presumption of risk of prejudice open to rebuttal in some circumstances…, the minority would not have permitted even the opportunity of rebuttal…
[104] I see no distinction in this regard between solicitor-client privilege and litigation privilege. Prejudice is presumed in relation to any breach and if there is a breach of litigation privilege, the onus is on the Crown to rebut this presumption. In considering the issue in Bruce Power Inc., the Court found that the Crown had not rebutted the presumption of prejudice and discussed the appropriate remedy:
[56] It is obvious that there is a significant public interest in proceeding to a trial of the merits in cases such as this. A stay of proceedings is the remedy of last resort for the purpose of curing the prejudice visited on the appellants by the breach of their solicitor-client privilege.
[57] LeBel J., writing for the majority in R. v. Regan, [2002] 1 S.C.R. 297, at paras. 54 and 56, articulated the test for a stay as follows:
Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:
(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
(2) no other remedy is reasonably capable of removing that prejudice.
The Court's judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future. . . . . .
Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay. Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay. (Citation omitted)
[58] Common sense suggests that every breach of solicitor- client privilege does not attract the ultimate remedy. Some breaches of privilege are trivial and would not call for a stay of proceedings.
[105] In R. v. Singh, [1999] O.J. No. 2274 (Ont. Ct. Just.) the accused asked for a stay of proceedings or, in the alternative, exclusion of a Crown expert witness. In that case, Belleghem J. found:
3 The defendant is charged with aggravated assault. The Crown alleges that while babysitting, he scalded the feet of his two and a half year old charge. The child is his girlfriend's daughter. The Crown relies heavily on a child abuse specialist called as an expert witness. The Crown retained their expert on the day of the incident.
4 The expert opines that the defendant deliberately held the child's feet in scalding water, causing the injuries.
5 Defence counsel sought an opinion from another specialist who works in the same hospital as the Crown expert. The two experts are colleagues. While the Crown expert is a specialist in child abuse he is not a plastic surgeon. The defence expert, while he is a plastic surgeon and head of the burn unit of the hospital, does not appear to be a child abuse specialist. It is normal to expect that the two experts would consult from time to time in the course of carrying out their hospital responsibilities.
6 In the course of the Crown's case, the Crown expert testified that he initiated conversation with the defence expert about the case. Neither counsel, properly in my view, delved into the content of that conversation.
7 In addition, Crown counsel in this case may have contacted the defence expert. Defence counsel, as an officer of the court, informed me that Crown counsel admitted to such contact with the defence expert witness. Crown counsel neither admits nor denies this allegation. Referring to the ethical guidelines of the Law Society and the way to resolve conflicting information given to the Court by counsel, Crown counsel takes the position that before I can act on the information provided me by defence counsel, that I need evidence under oath as a factual basis upon which to consider the defence application to the extent that the application is founded on an allegation of improper Crown counsel conduct. The alleged improper Crown counsel conduct is in discussing the case with the defence expert witness.
[106] The accused in Singh, argued that solicitor-client privilege had been breached:
12 Although that is a civil case, the principle is nevertheless applicable, and perhaps even with more force, in the criminal prosecution context. While there is "no property in a witness", I agree with Crown counsel's concession before me that the practice of Crown counsel associating himself or herself with the defence expert is not one to be encouraged, not only because of the potential appearance complained of here by defence counsel, but by the likelihood that such a practice would inevitably lead to applications similar to that before me.
13 I turn now to the consideration of the redress sought by defence. The defence asks me to stay the proceedings or to exclude the Crown's expert's evidence. He argues that the actions of the Crown expert and the Crown violate the defendant's solicitor/client privilege. In effect, he argues, that the prosecution, through the medium of the Crown attorney and the Crown expert, has conscripted the defendant in the preparation of "the Crown's case to meet".
14 He does not allege "actual prejudice". He argues that the appearance of prejudice or the appearance of violation of the defendant's solicitor/client privilege is sufficient to establish a s. 7 or 11 (or both) Charter breach which will warrant the remedy sought.
[107] In Singh, the Court referred to R. v. Worth, 23 O.R. (3d) 211, 1995 CarswellOnt 115, (Ont. C.A.), leave to appeal denied S.C.C. File No. 25382 S.C.C. Bulletin 1996, p.1877, in denying the defence application. In Worth, the Ontario Court of Appeal dismissed an application for a stay of proceedings based on a violation of solicitor-client privilege. While Worth was in custody awaiting trial, correctional officers and then police officers searched his cell and seized notes written by him to his lawyer. The defence alleged that the Crown used these notes in preparing its case against the accused. The judge found that Worth’s solicitor-client privilege had been breached, but that the correctional officers had acted in good faith, although had also acted negligently. Justice Bellingham stated in Singh:
16 Even if it did, the cases to which I will refer shortly, preclude the granting of such a Draconian remedy as a stay or striking the central evidence of the Crown's case.
17 The situation with respect to the prosecutor's alleged contact with the defence expert is a little different. The prosecutor is clearly a state agent. While it is arguable that the appearance of contact (I word it thus to give effect to the submission that if the Crown concedes contact with the defence expert) could violate the defendant's solicitor/client privilege. However, the substantive evidence to support such a finding is lacking. It is the "appearance created" by the alleged "admitted contact" that defence argues is a basis for the s. 7 or 11 violation. In this regard, I adopt the approach taken by the Ontario Court of Appeal in R. v. Worth 23 O.R. (3d) 211. The facts there analogous to the present case, and the reasons I adopt here, are set out fully in the following excerpt at p. 9 of the QUICKLAW report:
(6) "Breach of solicitor/client privilege. At the beginning of the trial, the appellant sought a stay of the proceedings against him pursuant to s. 24(1) of the Charter on the ground that government agents violated his solicitor/client privilege. The appellant's main complaint was that on February 21, 1989, when he was in custody pending his trial, correctional officers and subsequently police officers searched his cell and seized some notes that he had written to his lawyer. The defence contended that the Crown used the confidential information in these notes in its investigation and prosecution of the case against the appellant. The trial judge found that the appellant's solicitor/client privilege was violated. He also found that the officers conducting the search had acted in good faith, although one of them had been negligent in failing to recognize that the documents that the appellant wanted to take to a professional visit with his counsel were likely privileged. He then dismissed the stay application, ruling in part as follows:
'It seems to me that to grant the relief sought here would be so totally disproportionate to the Charter violation which I have found, the violation which was a product of those involved acting in good faith, that it would shock right-thinking members of the community. This is not a case where there is any real issue of derivative evidence. It is, therefore, not a case in which the accused has applied under s. 24(2) to exclude evidence. Having said that there is no derivative issue, at least as far as I can tell at the moment, I conclude by noting that there does not appear to me to be any real residual advantage accruing to the Crown in its prosecution of this case as a result of the information contained in the documentation which has been the subject matter of this voir dire. That is not to say that the Crown's access to information contained in Exhibit D might not have been somewhat enlightening to the Crown. I do not want to take the issue of benefit too far. The real issues in this case, as they are known to me now, do not suggest to me that there is any significance or real advantage resulting to the Crown as a result of the disclosure of that which is contained in Exhibit D. I accept Crown counsel's statement that it is not the Crown's intention, and will not be the Crown's intention whatever happens in this case, that the documents contained in Exhibit D, or any evidence which might emerge from them will form part of the evidence of the Crown's case or part of any attack upon the accused, should he give evidence, or witnesses called by the accused, should witnesses be called in the course of the accused's defence.'
The appellant does not attack the trial judge's factual findings, nor could he because the evidence supports them. The appellant submits, however, that once he established violation of his solicitor/client privilege, the onus shifted to the Crown to show that the appellant was not prejudiced by the violation. The appellant submits that the Crown did not satisfy this onus and he points to the seizure of his institutional psychiatric records one month after the violation as some indication that the Crown acted on the privileged information. The trial judge did not make any finding of a link between the solicitor/client privilege violation and the subsequent seizure of the appellant's psychiatric records and there is no evidence to support such a finding. Still, we recognize the fundamental importance of the solicitor/client privilege in criminal proceedings and, therefore, any violation of the privilege, even if done in good faith, is of concern, but we do not agree that there is an inflexible rule that once a violation is made out an accused is entitled to a stay absent an affirmative showing of no prejudice by the Crown. The Supreme Court of Canada has repeatedly stated that a stay should be granted only when 'the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases'. R. v. Conway [1989] 1 S.C.R. 1659, at 1657. See also R. v. Scott [1990] 3 S.C.R. 979, at 993, R. v. Kayowski [1988] 1 S.C.R. 657, at 658 and 659, and R. v. Power [1994] 1 S.C.R. 601 at 615.
In this case, the trial judge in refusing a stay, applied the correct principles and we find no error in his ruling. Accordingly, this ground of appeal also fails."
[108] In Singh, the Court concluded:
19 I add this caveat. I do not criticize the conduct of the Crown expert. As professional medical colleagues, it is not unexpected that the experts may confer. I would expect both Crown counsel and defence counsel to impress on their experts the need for confidentiality arising out of solicitor/client privilege.
20 Both Crown counsel and defence counsel ought to be able to expect that neither their expert nor the other will breach solicitor/client privilege. I was surprised that the Crown expert, as experienced as he seemed to be in court matters, was either apparently unaware of the principle of confidentiality or, if aware, of the appearance created when the confidential consultation took place without requesting defence counsel's consent or, at the very least, notifying Crown or defence counsel of his intent. Such consultations may be helpful to both sides. They are not necessarily to be discouraged provided that the experts are aware of the legal rights attached to privilege and do not engage in such discussions without a clear mandate to do so from both sides. Absent such a mandate, the comments of Waller, L.J. are instructive, that is, such contact in these circumstances are "undesirable". I would expect there to exist some form of protocol that would respect the legal rights of the parties where colleagues are retained by opposite sides. At the very least, counsel should know ahead of time of the likelihood of such contact so that the experts can be fully advised by the retaining side of their obligation to respect solicitor/client privilege.
21 With respect to the allegation that the Crown admitted contact with the defence expert and inferentially suggesting that a discussion of the case took place, I make these observations.
22 It is not necessary to find that such contact took place or that such discussion took place. Such contact and discussion, if it occurred, would evidence a practice not to be encouraged. On the one hand, "there was no property in the witness". Such a practice, however, in relation to an expert retained in accordance with the Wigmore tenets of privilege runs the real risk of derailing the Crown's case on a procedural aspect - one that arises out of the appearance of "tainted justice" - which, of course, is not justice at all.
23 Had defence counsel proceeded with the exercise of attempting to isolate from the expert's discussions with Crown counsel, and succeeded in identifying statements which could only have come indirectly from the accused through his counsel to the expert and thence to Crown counsel, the result may have been different - perhaps drastically different. I agree with defence counsel however, that such an exercise would be difficult, if not impossible. His application, therefore, relying on appearance rather than substance, is probably in this case the most appropriate course.
24 As I have indicated, however, the proper approach to the resolution of the issues raised in this case, dealing primarily with the "appearance of justice" is found in the Ontario Court of Appeal judgement of R. v. Worth. I adopt and apply the reasoning in that case by analogy to the present. The application is dismissed.
[109] In upholding the trial judge’s decision in Worth, the unanimous Ontario Court of Appeal stated at paras. 31-32:
The appellant does not attack the trial judge's factual findings, nor could he because the evidence supports them. The appellant submits, however, that once he established a violation of his solicitor-client privilege, the onus shifted to the Crown to show that the appellant was not prejudiced by the violation. The appellant submits that the Crown did not satisfy this onus and he points to the seizure of his institutional psychiatric records one month after the violation as some indication that the Crown acted on the privileged information.
The trial judge did not make any finding of a link between the solicitor-client privilege violation and the subsequent seizure of the appellant's psychiatric records and there is no evidence to support such a finding. Still we recognize the fundamental importance of the solicitor-client privilege in criminal proceedings and therefore any violation of the privilege, even if done in good faith, is of concern. But we do not agree that there is an inflexible rule that once a violation is made out an accused is entitled to a stay absent an affirmative showing of no prejudice by the Crown. The Supreme Court of Canada has repeatedly stated that a stay should be granted only when "the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases": R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659 at p. 1667, 40 C.R.R. 1; ... In this case the trial judge, in refusing a stay, applied the correct principles and we find no error in his ruling. Accordingly, this ground of appeal also fails. [Emphasis added]
[110] Sandeson also refers to the Court to R. v. Xenos, 1991 CarswellQue 2008, where the accused was successful in his application for a mistrial and an order that the evidence of a key witness for the Crown be excluded on the re-trial. In that case, the key witness had been promised money by an insurance company, indirectly assisted by the police, in exchange for a conviction. This went to the reliability of the witness and the Court noted:
44 In my opinion, it is unquestionable that the conduct of the representatives of the insurers was totally unacceptable. The indirect participation of the Quebec Provincial Police, solely as an intermediary, in the negotiations between Papadakis and the insurers equally was so. The promise of remuneration to an informant, conditional upon his evidence resulting in a conviction in a criminal trial, is absolutely unacceptable in a free and democratic society. The promise of money in exchange for testimony leading to the conviction of an accused constitutes a direct invitation to perjury and the fabrication of evidence, even if that is not the purpose being pursued.
[111] In ordering a mistrial and exclusion of the tainted evidence, Brossard J.C.A. stated:
47 The respondent acknowledges the unacceptable nature of the actions which representatives of the Crown made themselves indirect accomplices to. The respondent submits, however, that the degree of abuse in the means used must none the less be factored in, in its clear and manifest nature, having regard to its effects, that is having regard to the whole of the evidence. The respondent contests the proposition that a stay of proceedings on the facts of the present case is the only appropriate or available remedy and submits that the exercise by the trial judge of a relative discretion constitutes the only means of reaching a fair balance between the interests of the accused and the broader interests of society. The respondent relies on the decision of the Saskatchewan Court of Appeal in R. v. Keyowski (1986), 28 C.C.C. (3d) 553 at p. 568, 53 C.R. (3d) 1, [1986] 5 W.W.R. 150, where Vancise J.A. wrote as follows:
The doctrine of abuse of process exists to enable the court to prevent the use of its process for an improper purpose by controlling action prejudicial to the accused. There is no suggestion that the Crown was not entitled to proceed a third time; in fact it is conceded that it can.
In the absense of evidence that the legal officers of the Crown were guilty of prosecutorial misconduct or proceeded for some ulterior motive, in short that the proceedings were oppressive, the continuation of the trial on the indictment is not an abuse of process. It is not an action which constitutes a violation of the community's sense of fair play and decency. The community's sense of fair play and decency demands an answer, a resolution of the issue of guilt or innocence, as much, if not more, than it demands that there be an end to the number of times that the respondent be tried on the indictment. There are risks inherent in a jury trial, and the failure of a jury to agree is one of those risks.
48 I share this point of view and I cannot necessarily conclude on the basis of the facts in the present case, and in light of the aforementioned statements of the Supreme Court, that a stay of proceedings constituted the one and only appropriate remedy. I rather share the above-mentioned point of view expressed by Vancise J.A. in Keyowski, moreover upheld on the facts by the Supreme Court of Canada, 40 C.C.C. (3d) 481, [1988] 1 S.C.R. 657, 62 C.R. (3d) 349, to the effect that it is necessary to give consideration to the interests of society in the balancing exercise.
[112] Unlike Xenos, Sandeson is not alleging that the actual testimonial evidence of Blades and McCabe has been tainted so as to make it unreliable as a result of the manner in which Webb took his statements.
[113] The Crown advises that they tendered the 2015 statements of Blades and McCabe into evidence at the preliminary inquiry, as well as the surveillance video taken August 15, 2015, depicting Blades and McCabe interacting with Sandeson, Samson following Sandeson into his apartment, Sandeson coming to McCabe’s apartment, Blades and McCabe then following Sandeson back to his apartment and looking into Sandeson's apartment at material times.
[114] The defence concedes that the Crown planned to interview Blades and McCabe sometime prior to the start date of the trial, that being April 18, 2017. The Crown had not yet arranged to interview Blades and McCabe by the time Webb spoke to them in October 2016. Having observed Blades testify, I have no doubt that he was clearly aching to tell someone what he told Webb in his KGB statement. He was a dam of information ready to burst. Once Blades gave a new statement in October 2016, McCabe also gave a new statement.
[115] The defence argues that neither Blades, nor McCabe, would have been discoverable but for the actions of Webb. Both Blades and McCabe stated that since shortly after August 15, 2015, they had been living in fear. They thought that Sandeson was associated with the Hell’s Angels. They inferred that they were scared of reprisals if they told the police what they knew. As a result, they said they avoided contact with the social, sports and academic circle they had been involved with in August 2015. This group involved Sandeson. They did not, however, appear to be living “off the grid”.
[116] Since August 2015, Blades had been living in Halifax, working at a hospital emergency room and fighting publicly in professional mixed martial arts bouts. McCabe was living and working in Toronto. Both men were on social media and could be contacted through Facebook. To say that the Halifax Regional Police, or the R.C.M.P. would have had difficulty locating Blades and McCabe when the Crown was ready to speak to them in preparing for trial, is nonsensical.
[117] While litigation privilege must be vigorously protected, especially in the context of criminal law, the defence cannot race to a witness, take a statement from them, and then stick a flag in their facts, claiming those facts solely as the property of the defence. Additionally, there is no property in a witness: R. v. Roulette, 2015 MBCA 9, [2015] M.J. No. 16, at para. 122.
[118] I do not think the Crown played a role in breaching Sandeson’s litigation privilege. Webb arrived on the doorstep of the police. They did not seek him out. Webb’s notes and/or reports were not requested by or provided to the police. The statements themselves, and any notes or reports prepared by Webb in relation to the taking of those statements, are covered by litigation privilege. The facts are not protected.
[119] Webb did tell the police the gist of what Blades and McCabe told him, suggested that the police interview them, met with the police to assist them in obtaining a statement from Blades and provided the police with contact information for both Blades and McCabe. Finding Blades and McCabe would not have been difficult for a modern police department. Blades and McCabe would have been interviewed by the Crown prior to trial. Blades wanted to provide a new statement. Therefore, in the alternative, if litigation privilege was breached by Webb, all of the privileged information was easily discoverable by the police and would have inevitably been discovered by the police.
[120] Of course, it is impossible to state with certainty that Blades and McCabe would have said the same things to the Crown that they said to Webb, but having observed their demeanour on the witness stand, I believe that they would have provided information to the Crown similar to what was stated in their KGB statements, during VD7 and VD7B, and during the trial. Their consciences weighed heavy with the burden of having provided statements in 2015 that they said were false. Blades appeared relieved to provide his testimony. He was a dam of information ready to burst. McCabe provided a new statement as soon as he became aware that Blades had provided a new statement.
[121] Disclosure by the Crown of Webb's involvement with the police should have occurred well in advance of trial. Litigation privilege may have been breached. Sandeson says that he cannot have a fair trial in these circumstances. He complains that had he received timely disclosure of Webb's involvement he would have made a motion either for a stay of proceedings or an exclusion of the evidence of Blades and McCabe. He says that only a mistrial will provide him with the appropriate remedy. Considering the alternative possibility that there was a breach of litigation privilege, if Sandeson’s right to a fair trial was breached because of this, what is the appropriate remedy? In my opinion a mistrial is not warranted.
Fair Trial Considerations
[122] Sandeson says that if a mistrial is declared, he will then argue in the future either: 1) that the charges should be stayed due to an abuse of process or as a s. 24(1) Charter remedy or 2) that Blades and McCabe should be prohibited from testifying as a s. 24(1) Charter remedy or because the breach of litigation privilege would render their admission too unfair in keeping with the principles outlined in R. v. Harrer, [1995] 3 S.C.R. 562, 1995 CanLII 70.
[123] In R. v. Hart, [2014] 2 SCR 544, 2014 SCC 52, Moldaver J. stated for the majority:
113 In my view, this is where the doctrine of abuse of process must serve its purpose. After all, the doctrine is intended to guard against state conduct that society finds unacceptable, and which threatens the integrity of the justice system (R. v. Babos, 2014 SCC 16, at para. 35). Moreover, the doctrine provides trial judges with a wide discretion to issue a remedy -- including the exclusion of evidence or a stay of proceedings -- where doing so is necessary to preserve the integrity of the justice system or the fairness of the trial (ibid., at para. 32). The onus lies on the accused to establish that an abuse of process has occurred.
[124] Sandeson had the opportunity to argue for a stay or exclusion during this application and he chose not to make such arguments. Would the first-degree murder charges against Sandeson ever be stayed merely because Webb told the police they should re-interview two material witnesses? Should the testimony of two material witnesses in a murder case be excluded because the accused’s own private investigator took it upon himself to prod the police into re-interviewing their own witnesses prior to trial slightly earlier than they planned to?
[125] A stay of proceedings is to be granted in the context of a violation of s. 7 of the Charter, only in the “clearest of cases”: O’Connor at para. 68. As noted in Hart, a stay of proceedings or the exclusion of evidence could also be warranted where doing so is necessary to preserve the integrity of the justice system or the fairness of the trial. However, there is no state conduct in this case that society would find unacceptable or that threatens the integrity of the justice system.
[126] The need for the courts to stalwartly protect the rights of an accused was emphasized by McLachlin J. (as she was then) for the dissent in R. v. Curragh Inc., [1997] 1 S.C.R. 537, 1997 CanLII 381 (SCC):
120 To paraphrase Professor McWilliams in his text Canadian Criminal Evidence, supra, at ch. 1:10100, it is especially where pursuit of truth is righteous that we must guard against overreaching on the part of those charged with the authority to investigate and prosecute crimes. We cannot be tolerant of abusive conduct and dispose of due process, however serious the crimes charged. High profile trials, by their nature, attract strong public emotions. In our society the Crown is charged with the duty to ensure that every accused person is treated with fairness. It is especially in high profile cases, where the justice system will be on display, that counsel must do their utmost to ensure that any resultant convictions are based on facts and not on emotions. When the Crown allows its actions to be influenced by public pressure the essential fairness and legitimacy of our system is lost. We sink to the level of a mob looking for a tree.
121 The present case is not simply about Crown non‑disclosure. This case is about the appearance of justice. Throughout the proceedings the Crown bent and broke rules, and attempted to cover up when it was caught. The Crown actively misled the court, on a number of occasions. The Crown ignored or failed to obey court orders. It is unnecessary to repeat the litany of abuses that have already been described. The entire proceedings were tainted by prosecutors who were playing to an enraged public, and playing to win. That this is apparent can be seen from the internal memo that passed between prosecutors referred to by the trial judge and in these reasons. To win is not the role of the prosecutor; to win at all costs is an affront to the Canadian justice system. Courts should not tolerate activities which demonstrate this attitude. The conduct of Crown counsel at the trial violates the fundamental principles that underlie the community’s sense of fair play and decency and constitutes an abuse of the court’s process.
[127] We have no such abusive conduct attributable to the Crown in this case. We do have a breach of Crown disclosure obligations and the litigation privilege issue. In R. v. Morelli, [2010] 1 SCR 253, 2010 SCC 8, Fish J., for the majority, stated:
[110] Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.
[128] Of course, tainted justice is not justice at all. As the majority determined in Harrer:
23 The law of evidence has developed many specific rules to prevent the admission of evidence that would cause a trial to be unfair, but the general principle that an accused is entitled to a fair trial cannot be entirely reduced to specific rules. In R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, a majority of this Court made it clear that a judge has a discretion to exclude evidence that would, if admitted, undermine a fair trial; see also R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525. Similarly, Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 401, conclude that "if the admission of certain evidence would adversely affect the fairness of an accused's trial, the evidence ought to be excluded" (emphasis added). In Thomson Newspapers, supra, I attempted to explain that this approach is a necessary adjunct to a fair trial as guaranteed by s. 11(d) of the Charter in the following passage, at p. 559:
. . . there can really be no breach of the Charter until unfair evidence is admitted. Until that happens, there is no violation of the principles of fundamental justice and no denial of a fair trial. Since the proper admission or rejection of derivative evidence does not admit of a general rule, a flexible mechanism must be found to deal with the issue contextually. That can only be done by the trial judge.
I went on to further explain, as I had in Corbett, supra, that the common law principle had now been constitutionalized by the Charter's guarantee of a fair trial under s. 11(d) of the Charter. At page 560, I continued:
The fact that this discretion to exclude evidence is grounded in the right to a fair trial has obvious constitutional implications. The right of an accused to a fair hearing is constitutionalized by s. 11(d), a right that would in any event be protected under s. 7 as an aspect of the principles of fundamental justice (see R. v. Corbett, per Beetz J., at p. 699, and my reasons, at pp. 744-46; Dickson C.J. does not really comment on this issue).
24 The effect of s. 11(d), then, is to transform this high duty of the judge at common law to a constitutional imperative. As I noted in Thomson Newspapers, at p. 563, judges must, as guardians of the Constitution, exercise this discretion where necessary to give effect to the Charter's guarantee of a fair trial. In a word, there is no need to resort to s. 24(2), or s. 24(1) for that matter. In such circumstances, the evidence is excluded to conform to the constitutional mandate guaranteeing a fair trial, i.e., to prevent a trial from being unfair at the outset.
[129] In delivering the reasons of the minority in Harrer, McLachlin J. (as she was then) stated:
44 Whether a particular piece of evidence would render a trial unfair is often a matter of some difficulty. A distinction must be made at the outset between unfairness in the way a statement was obtained and an unfair process or trial. The situation in which police take evidence is complex. Even where every effort is made to comply with the law, aspects of the process may, in hindsight, be argued to have been less than fair. Sometimes the unfairness is minor or rendered insignificant by other developments (for example, that the police would probably have obtained the evidence anyway) or by other aspects of the case (for example, that the accused waived or acquiesced in the unfairness). Sometimes the unfairness is more serious. The point is simply this: unfairness in the way evidence is taken may affect the fairness of the admission of that evidence at trial, but does not necessarily do so. This is true for Charter breaches; not every breach of the Charter creates an unfairness at trial which requires exclusion of the evidence thereby obtained: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 284. It must also be true for irregularities that do not constitute Charter breaches.
45 At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.
46 Evidence may render a trial unfair for a variety of reasons. The way in which it was taken may render it unreliable. Its potential for misleading the trier of fact may outweigh such minimal value it might possess. Again, the police may have acted in such an abusive fashion that the court concludes the admission of the evidence would irremediably taint the fairness of the trial itself. In the case at bar, police abuse or unfairness is the only ground raised, and hence the only one with which we need concern ourselves. [Emphasis added]
[130] The information provided by Blades and McCabe to Webb would likely have been obtained by the Crown during pre-trial witness interviews. The trial process has not been tainted merely as a result of their new statements having been obtained in these specific circumstances. Additionally, Sandeson raises no issue regarding the reliability of Blades’ and McCabe’s evidence in relation to the way the evidence was obtained. After he obtained a statement from Blades, Webb says that he told McCabe that Blades had provided a new statement, and says that he told McCabe what Blades had said, prior to McCabe providing a new statement. McCabe was not cross-examined about this issue. Webb obtained the new statements from Blades and McCabe in accordance with the defence team’s instructions. If there is any complaint as to the manner in which Webb took the statement from McCabe (and no such complaint was heard on these voir dires) such complaint should be directed at Webb, not the police or the Crown. In any event, if there was any residual unfairness to the trial process, it was minor.
[131] As LaForest J. stated for the majority in R v. Lyons, [1987] 2 S.C.R. 309:
88. It seems to me that s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined.
[132] The police had nothing to do with Webb’s decision to provide them with the information about Blades and McCabe. They were essentially passive recipients. In the pre-Charter decision of R. v. Rothman (1981), 59 C.C.C. (2d) 30 (S.C.C.), Lamer J. (as he then was) commented at 74:
The judge, in determining whether under the circumstances the use of the statement in the proceedings would bring the administration of justice into disrepute, should consider all of the circumstances of the proceedings, the manner in which the statement was obtained, the degree to which there was a breach of social values, the seriousness of the charge, the effect the exclusion would have on the result of the proceedings. It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community. That a police officer pretend to be a lock-up chaplain and hear a suspect’s confession is conduct that shocks the community; so is pretending to be the duty legal-aid lawyer eliciting in that way incriminating statements from suspects or accused; injecting Pentothal into a diabetic suspect pretending it is his daily shot of insulin and using his statement in evidence would also shock the community; but generally speaking, pretending to be a hard drug addict to break a drug ring would not shock the community; nor would, as in this case, pretending to be a truck driver to secure the conviction of a trafficker; in fact, what would shock the community would be preventing the police from resorting to such a trick.
[133] While Rothman deals with different facts and different issues from a different era, that passage underscores the contrast between the actions of the police in Sandeson’s case as passive recipients of information from Webb relating to material evidence on a homicide charge and the possibility of aggressive and repulsive activities by the police.
[134] Sandeson refers to a number of decisions where remedies for late disclosure or breaches of privilege resulted in significant remedies. The court was also referred to cases where such breaches were cured by an adjournment and/or the opportunity for re-cross-examination.
[135] Not every issue that impacts on trial fairness is deserving of a drastic remedy since the significance of such an impact must be weighed (some may be slight, some may be moderate and some may be significant). In this case, the Crown's failure to disclose the involvement of Webb in assisting the police in a timely fashion is deserving of a remedy. As well, the possibility that there was a breach of litigation privilege by Webb (and the police) on the facts of this very unusual case might also be deserving of a remedy, but it would be a remedy at the lower end of the spectrum.
[136] Regarding the late disclosure, Sandeson had the KGB statements of Blades and McCabe since November 2016. Tan had been concerned about Webb's involvement in some way since he first read the KGB statements of Blades and McCabe. Without the declaration of a mistrial and re-starting the entire trial, Sandeson cannot be put back into the position of knowing Webb's entire involvement with the police prior to any cross-examination of McCabe. However, once Webb’s involvement was fully disclosed to the defence, Sandeson had the opportunity over the course of many days (during VD7 and VD7B) to fully discover all witnesses related to the provision of Blades’ and McCabe’s KGB through examination and cross-examination. The significance of Webb’s involvement with the police to a material issue at trial is negligible. In my opinion, having observed this trial for many weeks, providing Sandeson with an adjournment and a further opportunity to cross-examine Blades, McCabe and any witnesses related to Webb's involvement in the taking of their statements is the appropriate remedy for the late disclosure in these very unique circumstances.
[137] Considering the alternative possibility that litigation privilege was breached, applying any standard, I do not believe that a stay of proceedings or the exclusion of Blades and McCabe from the trial is an appropriate remedy now or would be an appropriate remedy in the future. Even if the information provided by Webb to the police about Blades and McCabe was protected by litigation privilege, it would have inevitably been discovered by the Crown as they prepared for the trial. An adjournment and the opportunity for further cross-examination of material witnesses related to this issue satisfies any fair trial complaint. If there is any residual unfairness it is minor and no further remedy is appropriate or required.
Conclusion
[138] The police did not elicit the information from Webb. Webb went to the police in October 2016 and essentially told them that material witnesses to what the police believed to be a murder had initially provided false statements and now wished to provide truthful statements. The police have a duty to investigate. The police did not ask for Webb to contact them. Once he did, the police did not ask for copies of the statements Webb obtained from Blades or McCabe. The police did not ask for a copy of Webb’s notes. There was no evidence that they ever saw the statements Webb took or the notes he made about the interviews. Instead, the police met with Blades and McCabe and independently took KGB statements from them which were immediately disclosed to Sandeson without any vetting. What should the police have done in these circumstances?
[139] The Crown should have disclosed Webb’s involvement as soon as they received the KGB statements, whether or not they believed the defence knew or ought to have known about his involvement. However, the limited materiality of the non-disclosed information, combined with the issue of defence due diligence, plays some role in fashioning the appropriate remedy.
[141] While any breach of litigation privilege is serious, and in this case highlighted by the Crown's access to the facts Blades and McCabe now provide, the police had a duty to investigate this missing person/homicide case. Once Webb told Lane what he knew on October 18, 2016, the wheels were set in motion regarding the discovery of Blades’ and McCabe's information in October 2016. Whatever happened between Webb, Blades and McCabe, the police and the Crown would have interviewed Blades and McCabe prior to the commencement of trial in April 2017. Blades was aching to tell someone what he told Webb. McCabe gave a new statement as soon as he heard Blades had left his original story behind.
[142] To summarize my conclusions: (1) the Crown was obliged to disclose the specific fact of Webb’s contact with the police, and failed to do so in a timely fashion; (2) the defence did not diligently pursue disclosure of the identity or involvement of “Bruce” in the statements; (3) any infringement of Sandeson’s right to a fair trial as a result of the late disclosure in this case is at the lower end of the scale; (4) the appropriate remedy for the late disclosure in these very unusual circumstances is to allow an adjournment of the trial in order for Sandeson to consider who he may wish to re-cross-examine and then to allow him the opportunity to conduct additional cross-examination of witnesses material to this issue prior to the Crown closing its case; (5) Webb’s communications with the police do not amount to a breach of solicitor-client privilege or litigation privilege; and (6) if Webb’s activities do constitute a breach of litigation privilege, considering the constellation of facts in this peculiar case, a mistrial is not warranted (nor would a stay of proceedings or exclusion of the testimony of Blades and McCabe be warranted). Instead, in light of the fact that I am offering a remedy for the late disclosure, the appropriate remedy is an adjournment and the right to further cross-examination of material witnesses related to this issue prior to the Crown closing its case. Any residual unfairness not cured by this remedy is minor and not deserving of a remedy.
[143] It should be noted that my bottom-line decision rejecting Sandeson’s bid for a mistrial was made known to him, and this remedy offered to him, prior to the Crown closing its case. Sandeson refused the offer of adjournment and refused the opportunity to re-cross-examine witnesses related to this issue.
Arnold, J.