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R. c. Bordo |
2016 QCCS 477 |
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JC00B1 |
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CANADA |
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PROVINCE OF QUEBEC |
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DISTRICT OF |
BEDFORD |
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No: |
455-01-008141-073 455-01-008142-071 |
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DATE: |
February 3, 2016 |
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______________________________________________________________________ |
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IN THE PRESENCE OF: |
THE HONOURABLE |
GUY COURNOYER, S.C.J. |
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______________________________________________________________________ |
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File n° 455-01-008141-073 :
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THE QUEEN |
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Prosecution/Respondent |
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v. |
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BRIAN BORDO |
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MARTIN CASTILLOUX |
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GILLES COUTURE |
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WERNER KYLING |
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Accused / Petitioners |
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File n° 455-01-008142-071 : |
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THE QUEEN |
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Prosecution/Respondent |
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v. |
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MARTIN CLOHOSY |
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Accused / Petitioner |
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JUDGMENT |
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I - Overview
[1] The Court is asked, yet again, to decide a disclosure issue in two cases that have been before this Court for the past ten years.
[2] Originally, the accused’s extradition was sought by U.S authorities in June 2005 and denied by the Superior Court on August 2, 2006.[12]
[3] In March 2007, four direct indictments were preferred.
[4] Mr. Clohosy was convicted on August 23, 2008 and sentenced on January 16, 2008.
[5] The other accused were convicted in April 2011 and they were sentenced on June 20, 2011.
[6] Appeals were heard in December 2012 and the Court of Appeal ordered new trials in both cases on October 10, 2013 due to linguistic issues.[13]
[7] From the new-trial orders by the Court of Appeal until the designation of a case management judge, there were a series of pro-forma dates where, for a time, the prosecution had not designated a prosecutor for the cases. One who was appointed left to become a member of the federal prosecution service. Ultimately there was a period of time devoted to plea resolution in which all accused participated except Mr. Kyling.
[8]
The undersigned was designated as the
case-management judge on June 13 and 16, 2014; pursuant to s.
[9] On July 24, 2014, the Court sent an e-mail to the parties to organise a conference call.
[10] The conference call was held on August 12, 2014. Its purpose was to set a date for the first case-management hearing which was held on December 5, 2014.
[11] As the prosecution and the accused were both seeking the disqualification of counsel, the Court decided to hear this motion on January 9, 2015.
[12] On that date, two accused pleaded guilty.
[13] The Court was then informed that the issue of the disqualification of counsel had been resolved by the parties.
[14] The next issue to be addressed was a Rowbotham application by three of the accused.
[15] The motion was heard on February 17 and 19, 2015. After a day and a half, the Attorney General of Quebec ultimately agreed that a Rowbotham stay should be issued. Both counsel for the accused and the Attorney General requested some time to discuss the terms and conditions of the retainer.
[16] On March 13, 2015, after joint submissions from the parties and the Attorney General, the Court lifted and suspended the Rowbotham stay in order to set a date to proceed with the next issue to be determined: a motion on s. 11(b) of the Charter and abuse of process. The Rowbotham issue would only be revisited after two forthcoming rulings by the Court.
[17] On April 20 and 21, 2015, the Court heard submissions from the parties on the timing of the hearing on the joint motion. The Court raised the issue of whether the abuse of process motion should be heard only after the verdict, if need be.[14]
[18] The accused proposed that the scope of their motion be limited to the issue of unreasonable delay and asked the Court to postpone any ruling on the timing of the abuse of process motion after the Court had ruled on the s. 11(b) motion, and, if need be, the wiretap challenge.
[19] The suggestion was accepted and the hearing on the s. 11(b) motion began on May 22, 2015, and the hearing lasted four days.
[20] The Court heard no witnesses. The accused filed affidavits and the prosecution did not cross-examine the affiants. Both parties also filed transcripts, documents and timelines.
[21]
The written motions for all accused, including
Mr. Castilloux and Mr. Couture, were filed in English. Oral submissions
were also made in English. Both Mr. Castilloux and Mr. Couture were aware of
their rights under s.
[22] On June 9, 2015, the Court rendered judgment and declined to stay the proceedings on the basis of delay.[15] While the Court concluded that the delay was quite significant, it considered itself bound by recent decisions of the Court of Appeal requiring proof of actual prejudice to the full answer and defence of the accused, in order to justify a stay of proceedings.
[23] While an argument can be made that such an interpretation appears to be more restrictive[16] than the actual ruling of the Supreme Court in R. v. Godin,[17] this Court, in the absence of distinguishing factors, is bound to follow the law as interpreted by the Court of Appeal.[18]
[24] The Court then proceeded with the wiretap challenge which was heard for five days in late June 2015.
[25] While there are many issues arising from the wiretap challenge, the main substantive issue has been clearly identified for almost ten years, that is, whether there was some evidence establishing the existence of a criminal organisation.
[26] Brunton J. summarized the issue in his judgment refusing the extradition of the persons who are now accused before the Court:
All of the Respondents, with the exception of Mr. Stewart, attacked the Canadian court-issued wiretap authorization. (DE-2-15). Amongst the offences listed in the authorization one finds (1) participation in the activities of a criminal organization (467.11 Cr.C.) and (2) commission of an offence for the benefit of a criminal organization (467.12 Cr.C.).
The presence of these two offences permitted the authorizing judge to
provide that the authorization would remain in effect for a period of 12 months
instead of the usual 60 day period provided by law (s.
The Respondents argued that due to material non-disclosure, the authorization judge had been misled into believing that a criminal organization, as that term is defined in law, existed when in fact it did not. As a result, the authorization should be quashed and the intercepted conversations declared inadmissible pursuant to s. 24(2) of the Charter.[19]
[27] This issue is substantive and not spurious. If, as a result of material non-disclosure to the authorizing judge, it is established that there were no reasonable grounds to believe in the existence of a criminal organisation made up of, at least, three members, it might result in the exclusion of the evidence pursuant to s. 24(2) of the Charter.
[28] On June 21, 2015, during the wiretap challenge, the accused sought to expand their cross-examination of the affiant and the scope of the evidence they wished to present. In particular, they wanted to present evidence of a pattern of police misconduct similar to that alleged in the wiretap challenge, i.e. wilful non-disclosure to authorizing judges in the same investigation.
[29] The Court was asked to determine whether it should adopt a bifurcated procedure in order to avoid addressing the exclusion of the wiretap evidence pursuant to s. 24(2) of the Charter on a speculative basis.[20]
[30] The evidence with respect to a pattern of police misconduct would only be relevant under s. 24(2) of the Charter if, and only if, the Court ruled in favour of the accused in their challenge to the wiretap authorization and found a s.8 Charter violation.
[31] A first disclosure motion arose during the preparation of the hearing to determine whether to adopt the bifurcated procedure. This disclosure motion was heard on August 31, and September 3, 2015.
[32] The disclosure issue arose mainly in respect to what is known as the Cure I investigation. The current charges facing the accused stem out of an investigation described as Cure II.
[33] One can find the following description of both investigations in the judgment of the Court of Appeal in R. c. Gagnon[21] that ordered a new trial:
[5] Les accusations portées contre eux constituent l'aboutissement d'une enquête - nom de code, Projet Cure - amorcée en 2001 par la Gendarmerie royale du Canada (« GRC ») portant sur un présumé réseau de trafiquants de drogue sévissant dans la région de Bedford-Saint-Armand. La Sûreté du Québec (« SQ »), appelée à prendre le relais, dirige l'opération conjointe des deux corps policiers à compter de 2003. Le 8 juin 2005, cette enquête conduit à l'arrestation d'une cinquantaine de personnes, dont les appelants Gagnon et Kyling, père et fille.
[6] Le même jour, les autorités américaines, au terme d'une enquête menée en collaboration avec la GRC et la SQ, demandent l'extradition de Brian Bordo, Martin Castilloux, Martin Clohosy, Gilles Couture et W. Kyling, alléguant un complot d'importation et de distribution de 1 000 kg de cannabis sur le territoire des États-Unis d'Amérique.
[7] Le 2 août 2006, le juge James Brunton de la Cour supérieure rejette la demande d'extradition au motif que la preuve ne correspond pas aux crimes mentionnés dans la requête (bien que, selon lui, elle corresponde à une autre série de crimes commis au Canada et pour lesquels l'extradition n'est pas demandée).
[8] Le 15 mars 2007, le Procureur général du Québec dépose quatre actes d'accusation privilégiés dont deux visent les appelants dans les dossiers suivants : 455-01-008142-071 et 455-01-008141-073. Ce dernier dossier, ouvert dans le district de Bedford, est transféré à la demande du ministère public dans le district de Saint-François sous le numéro 450-01-065500-105.
[9] Le procès s'amorce le 8 septembre 2010 avec la sélection du jury pour se terminer par les verdicts de culpabilité rendus contre les appelants le 12 avril 2011.
[34] As noted by the Court of Appeal, the charges are the outcome of an initial investigation by the RCMP that started in 2001. This investigation came to be known as Cure I.
[35] In 2003, the Sûreté du Québec (“S.Q.”) was given the lead of a joint investigation of the RCMP and the S.Q.
[36] Cure I figured prominently in the wiretap application:
Depuis le mois de septembre 2003, des membres du service des enquêtes sur le crime organisé de la Sûreté du Québec et du bureau régional d'enquête de l'Estrie travaillent en partenariat avec les membres de la Gendarmerie Royale du Canada qui ont amorcé l'enquête. Des agences extérieures sont aussi mises à contribution, telles l'agence canadienne des douanes, la U.S. Drug Enforcement Administration, le United States Customs and Border Patrol et le département du Homeland security.
Cette équipe de travail a amorcé une phase plus opérationnelle d'enquête visant à corroborer les informations recueillies lors de la première enquête et qui a pour but de suivre le cycle complet des activités criminelles de l'organisation à partir du clonage des boutures, de la mise en terre, de l'entretien des plants, de la récolte, de la transformation et de l'ensachage, de l'entreposage, du transport vers les États-Unis et de l'identification des clients américains, du retour de l'argent au Canada ainsi que de son recyclage en tant que produit de la criminalité.[22]
[Emphasis added]
[37] A 26-page summary of the Cure I investigation is an annex supporting the wiretap authorization, which was granted on May 27, 2004, and is the subject of the wiretap challenge.
[38] Disclosure of the Cure I investigative file was sought during the first trial and denied by the first trial judge.[23]
[39] On November 2, 2015, the Court concluded that the Cure I investigation file needed to be disclosed by the prosecution, with an inventory.[24]
[40] Following the Court's ruling, new disclosure issues arose, including whether the disclosure by the prosecution respected the Court's ruling.
[41] Oral submissions were made and heard on November 5 and November 16. It was agreed to address the disclosure issues arising from the disclosure given by the prosecution and new issues.
[42] At the Court's request, the accused[25] then filed an additional disclosure motion. The parties were asked to prepare an inventory list of any outstanding disclosure requests. After another case management hearing on December 7, the motion was ultimately heard on December 14.
[43] Because of the scope of disclosure sought, which encompassed police misconduct which had been the subject of different challenges during the first trial, it became clear, once again, during submissions that an issue that had been hovering over this case also needed to be settled once and for all: whether the Court of Appeal's decisions in Clohosy and Gagnon, ordering new trials for the accused, raised the application of issue estoppel so as to preclude the accused from raising a pattern of police misconduct either as grounds to exclude wiretap evidence or to obtain a stay of proceedings.
[44] The parties filed extensive written submissions on this issue.
[45] In a nutshell, more than two years after the Court of Appeal ordered new trials for the accused that have been before the courts for the past ten years, disclosure issues that should have been resolved a long time ago are still being debated.
[46] It is true that many motions were filed by the accused.
[47] But, for the reasons given in the Court's prior disclosure ruling, it is difficult to understand why the prosecution was still arguing that the Cure I investigative files were clearly irrelevant when they figured so prominently in the wiretap application.[26]
[48] The prosecution appears only to have considered disclosing the Cure I investigative files while the disclosure issue was under reserve. On October 1, 2015, the prosecution wrote to the Court:
We have taken notice of Me Walsh's request as per disclosure regarding what has come to be known as Cure 1. In a nutshell he is asking for documents showing or tending to show certain precise facts. Same can be said of Mr. Kyling's request, although his own motion is more lengthy.
In light of the situation we are now faced with, even though we believe the position we had taken in the first trial was correct at that time, we are now taking a different position on this matter. We have been working for the last few weeks on making an inventory of Cure 1, and are preparing a package for disclosure purposes.
[49] It is true that the prosecution's decision to withhold the disclosure of the Cure I investigative files had the benefit of judicial imprimatur[27] by the first trial judge and to an uncertain extent by the Court of Appeal.[28] Yet, taking the most restrictive approach with respect to disclosure of material within the prosecution's control does not square well with the statement in R. v. Stinchcombe[29] that the prosecution must err on the side of inclusion and the fact that the limits to disclosure obligations are only justified if the material sought is "clearly irrelevant, such that is not of any use to the defence."[30]
[50] In addressing the many disclosure issues, the prosecution has not demonstrated any haste in bringing the accused to trial,[31] particularly in the context of a second trial where “everyone involved must make it a priority to set new trial dates once a new trial is ordered by an appellate court.”[32]
[51] On every issue, the prosecution appears to have consistently chosen the narrowest possible scope of disclosure. By doing battle on all disclosure issues, at every turn, tooth and nail, the prosecution's approach hardly promoted a fair and efficient trial.
[52] While the disclosure process can no doubt be quite cumbersome and frustrating at times for the prosecution and law enforcement authorities, after both Stinchcombe and R. v. McNeil,[33] the applicable general principles of disclosure are well understood. It is difficult to be confused on the need to err on the side of disclosure unless the material is clearly irrelevant.
[53] As noted by the authors of Criminal Procedure in Canada:[34]
There is little downside to over-disclosure. At worst, it creates more paper to photocopy and distribute. At best, it could prevent a wrongful conviction.
[54] One must also remember that "the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done."[35]
[55] In addition, the Supreme Court in McNeil has clearly defined the duty of the police to participate in the disclosure process:
The necessary corollary to the Crown’s disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown.[36]
[56] Finally, it is important to note that the duty to disclose "is placed on the Crown in light of its overwhelming advantage in resources and the corresponding risk that the accused might otherwise be unfairly disadvantaged."[37]
II - The new disclosure motion
[57] At this juncture, it is unnecessary to describe the specifics of the disclosure sought by the accused beyond a general description.
[58] One broad category is the disclosure of relevant information with respect to the existence of a three-member criminal organisation. This information is clearly relevant to the challenge to the wiretap authorisation.
[59] The other main category is information relevant to an alleged pattern of police misconduct. Such information would be relevant to the credibility or reliability of police officers as witnesses[38] and to the issue of whether the disclosure or non-disclosure of information by law enforcement authorities in the process of seeking a number of judicial authorizations is established.
[60] The latter class of information would be relevant to establish a pattern of police misconduct in order to support either the exclusion of the wiretap evidence or a stay of proceedings on the basis of an abuse of the court's process.
[61] Before addressing the disclosure issues, it is necessary to determine to what extent this Court is bound by the decision of the Court of Appeal in both Clohosy and Gagnon.
[62] If the Court concludes that is so bound, it has important consequences as to the scope of the disclosure to be ordered.
III - Is the Court bound by the Court of Appeal's decisions in Clohosy and Gagnon
[63] Excerpts of both decisions by the Court of Appeal on the issue of disclosure and the stay of proceedings issue are reproduced as an appendix at the end of this judgment.
[64] The parties have filed extensive submissions on whether or not the Court is bound by the decisions of the Court of Appeal in Clohosy and Gagnon.
A - Submission of the parties
1) The accused
[65] The accused make a number of submissions: 1) their motion was mischaracterized by the prosecution and the Court of Appeal; 2) the ratio of the Court of Appeal's decisions is difficult to ascertain clearly; 3) the findings made by the Court of Appeal were mainly obiter; 4) none of the four principal allegations of police misconduct made in this trial were ever ruled upon at their first trial; 5) on a retrial the new trial judge is not bound by the rulings of the first trial judge, even if they were upheld by the Court of Appeal.
[66] On the latter argument, the accused emphasize that the decision of the Court of Appeal in the case of R. v. Cliche[39] is a complete answer to the question of issue estoppel raised by the prosecution. When a new trial is ordered by a court of appeal, it is a completely new trial that is not bound by any previous judicial rulings.
2) The prosecution
[67] The prosecution argues that all those issues have been put to rest by the Court of Appeal in both decisions.
[68] Relying on the Supreme Court's decision in R. v. Duhamel,[40] the prosecution submits that "matters that have been fully litigated between parties [should] not [be] reopened, over and over."
[69] The prosecution also relies on the British Columbia Court of Appeal in R. v. Ekman[41] where the court concluded that a prior appeal in the same case on an issue was decided against the accused as a matter of law and could not be relitigated.
[70] Surprisingly, the prosecution does not make any submissions concerning the Court of Appeal's decision in Cliche.
B - Are the rulings in Clohosy and Gagnon final on the basis of Cliche?
[71] There is little doubt that a fair argument may be put forward by the prosecution that the two judgments of the Court of Appeal preclude a relitigation of the issues raised during the first trial on the disclosure and the stay of proceedings. As a matter of fact, it is apparent that the Court of Appeal is quite critical of the issues that were raised during the first trial by the accused.
[72] But in this Court's view, it is unnecessary to analyse all the submissions made by the parties on the binding scope of the rulings of the Court of Appeal.
[73] The Court is prepared to assume that the Court of Appeal's decisions have rejected the accused’s arguments and that this Court is bound by these rulings unless the interpretation of Cliche put forward by the accused is correct.
[74] The only requirement of issue estoppel relevant in this case is whether the Court of Appeal's decision can be considered final.[42]
[75] Chief Justice McLachlin explained the requirement of finality in Mahalingan as follows:
[55] The second requirement of issue estoppel is that the judicial decision which is said to create the estoppel be final. Findings on particular issues at trial are final, unless overturned on appeal. This applies equally in civil trials and criminal proceedings. […]
[76] Cliche is important in order to determine whether the findings by the Court of Appeal meet the criterion of finality.[43]
[77] In Cliche, the first trial judge excluded wiretap evidence. The case ended in a mistrial. The second trial judge considered that the decision of the first trial judge was still applicable.
[78] Beauregard J.A. summarized the issue in the following terms:
5 Présidant le procès de l'intimé devant un jury, le juge Jean-Guy Boilard a déclaré irrecevables trois conversations téléphoniques auxquelles l'intimé a pris part. Les jurés n'ont finalement pas pu s'entendre sur le sort des accusations et, en conséquence, le procès allait devoir être repris devant un autre jury qui serait présidé par la juge Sophie Bourque.
6 Malgré une demande de la poursuite à cette fin, la juge Bourque a décidé qu'elle ne reprendrait pas l'étude de la recevabilité de ces conversations téléphoniques et que le jugement Boilard à cet égard continuerait d'avoir ses effets. Devant la déclaration de la poursuite qu'elle n'avait pas d'autres éléments de preuve à offrir, la juge Bourque déclara l'intimé non coupable.
7 La juge Bourque a motivé sa décision à partir de son avis que le procès qu'elle présidait n'était pas un nouveau procès - comme l'aurait été un procès ordonné par un tribunal d'appel -, mais la continuation du procès présidé par le juge Boilard. En conséquence, elle exprima l'avis qu'elle n'était pas liée par ce jugement, mais qu'elle avait le pouvoir discrétionnaire pour lui laisser tous ses effets juridiques, ou pour le modifier selon le pouvoir que détient tout juge qui préside un procès de modifier un jugement interlocutoire prononcé antérieurement.
[79] The Court of Appeal disagreed with the approach taken by the second trial judge and decided that a new trial should be ordered because a new trial starts afresh. Beauregard J.A. writes:
13 Avec égards, si les deux instructions doivent être présidées par deux juges différents, je ne suis pas d'avis qu'il y a une distinction à faire, pour les fins qui nous intéressent, entre l'instruction d'un procès rendue nécessaire par suite, d'une part, d'un désaccord chez les jurés ou d'un avortement décrété par le juge qui préside l'instruction et, d'autre part, l'instruction d'un procès parce qu'un premier verdict a été annulé par un tribunal d'appel.
14 Dans les deux cas, il s'agit de tenir une nouvelle instruction au cours de laquelle le nouveau juge doit décider, selon ce qu'il a devant lui et en son âme et conscience, quels éléments de preuve doivent être présentés au jury.
15 Quelle que soit la raison qui a causé la tenue de la nouvelle instruction, l'administration de la preuve sera faite de la même façon, avec la même nécessité pour le juge de statuer sur la recevabilité des éléments de preuve.
16 De fait, l'intimé concède que, lors d'une instruction d'un procès rendue nécessaire par le désaccord des jurés, chacune des parties a le droit strict à une instruction "de novo". Exactement comme dans le cas d'un nouveau procès ordonné par une cour d'appel.
[…]
23 Ainsi, comme je l'ai mentionné plus haut, pour les fins de l'administration de la preuve et de l'étude de la recevabilité d'éléments de preuve, je ne vois aucune distinction à faire entre l'instruction qui suit l'ordonnance d'un nouveau procès et l'instruction qui suit l'avortement d'un procès, lorsque la nouvelle instruction doit être présidée par un juge différent de celui qui a présidé la première instruction. Pour dire vrai, je trouve artificielle la distinction qu'on fait entre l'instruction d'un nouveau procès et la continuation d'un même procès alors que, lors de la continuation, c'est un nouveau juge qui préside et un nouveau jury qui siège et que les parties ont évidemment le loisir d'apporter de nouveau les éléments de preuve qu'elles ont pu apporter devant le premier juge et le premier jury.
[Emphasis added]
[80] Beauregard J.A. also quoted with specific approval[44] an article written by Don MacDougall entitled Continuity of Judicial Rulings After a Mistrial,[45] where the author writes that "that Duhamel stands for the proposition that a trial judge is not bound by the interlocutory rulings made at an earlier trial, even if a higher court finds no error with the ruling."[46]
[81] Finally, in his conclusion in Cliche, Beauregard J.A. added the following observations:
52 Il
serait peut-être souhaitable que l'article
[Emphasis added]
[82] After Cliche was rendered, the Criminal Code was amended to provide that rulings relating to disclosure, admissibility of evidence or Charter rulings were binding on the parties in any new trial after a mistrial[48] or an order for a separate trial[49] unless it would not be in the interest of justice.
[83] No such amendment was made with respect to an issue dealt with by a court of appeal in its decision.
[84] On the basis of Cliche, it cannot be said that the Court of Appeal's rulings in these cases are final for the purpose of issue estoppel.
[85] In the context of a new trial ordered by a court of appeal, relitigation of the same issues is part and parcel of the normal process once a new trial is ordered. A new trial starts with a fresh deck.[50]
[86] As the Supreme Court made clear in R. v. Thomas, "a "new trial" for purposes of s. 686(4)(b)(i) [of the Criminal Code] means a full new trial, not a limited one."[51]
[87] Thus, the Court is not bound by the decisions of the Court of Appeal with respect to the issues raised by the accused. On the other hand, the Court is not unmindful of the severe critical appraisal by the Court of Appeal of the issues raised by the accused during their first trial.
IV - The disclosure obligation
A - The disclosure obligation with respect to a stay of proceedings application
1) General principles
[88] Even if the Court is not bound by the rulings made by the Court of Appeal in a new trial, there is one alternative way in which the decision in Clohosy might bind this Court. It is to conclude that the Court of Appeal ruling settles the disclosure issue as a matter of law.[52]
[89] According to the prosecution, the decision in Clohosy upheld as a matter of law the decisions of the trial judge with respect to the scope of disclosure in a stay of proceedings application.[53]
[90] Specifically, the prosecution submits that the Court of Appeal upheld the trial judge’s decision that the disclosure obligations of the prosecution only exist with respect to the demonstration of the accused's innocence.[54]
[91] It is difficult to ascertain whether the Court of Appeal did indeed uphold the first trial judge's many rulings in that respect as a matter of law.
[92] But assuming that it did, a further difficulty arises.
[93] The Quebec Court of Appeal made a contrary ruling on this issue in R. v. Pearson.[55]
[94] The issue faced by the Court of Appeal in Pearson was the disclosure of information relevant to the issue of entrapment. Fish J.A. wrote:
Applying these principles to the present case, I am satisfied that the Crown ought to have turned over the Bard materials to appellant as soon as he asked for them. Disclosure should be made upon request, even if the information to be divulged is relevant primarily or exclusively to issues like entrapment or insanity, which are in principle dealt with only if — and after — the accused is found guilty as charged.[56]
[95] The scope of the ruling of the Quebec Court of Appeal in Pearson has been unanimously interpreted.[57]
[96] Additional support for disclosure obligations with respect to a stay of proceedings applications can be found in the Supreme Court's decision in R. v. Campbell,[58] R. v. Creswell[59] and R. v. Castro.[60]
[97] The Supreme Court's decision in Campbell is instructive because the Court considered the issue of the disclosure of a legal opinion in the context of a stay of proceedings application.
[98] It is also relevant given the allegations of a pattern of police misconduct made in this case.
[99] Binnie J. wrote the following on the issue of police illegality:
24 The effect of police illegality on an application for a stay of proceedings depends very much on the facts of a particular case. This case-by-case approach is dictated by the requirement to balance factors which are specific to each fact situation. The problem confronting the police was well described by the Alberta Court of Appeal in R. v. Bond (1993), 135 A.R. 329 (leave to appeal refused, [1993] 3 S.C.R. v), at p. 333:
Illegal conduct by the police during an investigation, while wholly relevant to the issue of abuse of the court’s processes, is not per se fatal to prosecutions which may follow: Mack; supra at 558. Frequently it will be, but situational police illegality happens. Police involve themselves in high speed chases, travelling beyond posted speed limits. Police pose as prostitutes and communicate for that purpose in order to gather evidence. Police buy, possess, and transport illegal drugs on a daily basis during undercover operations. In a perfect world this would not be necessary but, patently illegal drug commerce is neither successfully investigated, nor resisted, by uniformed police peering through hotelroom transoms and keyholes or waiting patiently at police headquarters to receive the confessions of penitent drug-traffickers.
[100] In the specific factual context of that case, the Court concluded that the accused were entitled to disclosure of the relevant legal advice received by a police officer and relied upon by the prosecution to support its position that the police operation was legal.[61]
[101] Had the Supreme Court been of the view that disclosure obligations were restricted to the issue of guilt or innocence of the accused,[62] the Court would have declined to order disclosure of the legal advice received in the context of a stay of proceedings application.
2) Trial courts and conflicting precedents from the Court of Appeal
[102] In Jamt v. Schurman,[63] McLachlin J. (as she then was) explained how a judge should proceed when faced with conflicting authorities at the same level of court. She wrote:
2. Consideration of the matter on the basis of the authorities favours the plaintiff's position. It has been said that where there is a division of opinion between trial Judges of the same Court, the practice is to follow the more recent decision or decisions, provided that they have considered the conflicting decisions: Woolfrey v. Piche, [1958] O.W.N. 253; Re Goyan; Port Arthur & Fort William, [1953] O.W.N. 297 at 299. At very least, it may be said that judgments which have been accepted and followed in later cases may have greater weight than those which have not been followed: see Cairney v. MacQueen, [1956] S.C.R. 555 at 559, per Kerwin C.J.C. Hartfield, although considered in subsequent cases, has never been accepted and followed. Samson, a more recent case, has been accepted in one other subsequent decision, although arguably in obiter. These considerations lead me to conclude that the views expounded in Samson should be preferred by me to those in Hartfield in that the former represent the beginning of a consistent course of judicial doctrine on the question, the continuation of which favours certainty in the law.[64]
[Emphasis added]
[103] In England, the rule is summarized as follows:
32. Decisions of co-ordinate courts. There is no statute or common law rule by which one court is bound to abide by the decision of another court of co-ordinate jurisdiction. Where, however, a judge of first instance after consideration has come to a definite decision on a matter arising out of a complicated and difficult enactment, the opinion has been expressed that a second judge of first instance of co-ordinate jurisdiction should follow that decision; and the modern practice is that a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance unless he is convinced that that judgment was wrong. Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of earlier decisions.[65]
[104] In the absence of controlling precedents from the trial judge's own Court of Appeal, a decision by the Court of Appeal of another province is a relevant factor for a trial judge to consider.
[105] But a trial judge, just as a Court of Appeal of one province, is never bound by the decision of the Court of Appeal of another province "unless it is persuaded that it should do so on its merits or for other independent reasons."[66]
[106] With respect to precedents from their Court of Appeal, the general principles applicable to trial judges were summarized by the Alberta Court of Appeal in R. v. Arcand.[67]
[107] The majority in Arcand defines the vertical convention of precedents as follows:
[184] A trial court (and intermediate appeal courts) must follow precedents of appellate courts which hear appeals (directly or indirectly) from those courts. Appellate decisions bind even if the lower court thinks that the higher court's precedent is clearly wrong or that the higher court's decision is wider than its rationale requires. Court of appeal decisions also bind trial judges even if the trial judges think that the court of appeal decisions were based on some reasoning or precedent now shaken or even gone, or that the general trend of higher courts' views is now contrary.
[108] While commentators have discussed and examined the approach to be taken when there are conflicting precedents within a court of appeal[68] or amongst trial judges of same level,[69] very little has been written about "the difficult position of facing two inconsistent precedents."[70]
[109] In 1980, Lamer J. (as he then was) expressed the following opinion in a paper prepared for newly appointed provincial court judges:
Toutefois, si deux juges de la Cour supérieure ont rendu des jugements contradictoires, le juge d'une cour provinciale peut choisir celui avec lequel il est d'accord. En revanche, si c'est la Cour d'appel qui a rendu deux décisions contradictoires, il convient de suivre la plus récente des deux.[71]
[110] Principles similar to those expressed by McLachlin J. in Jamt v. Schurman should also be applied where a trial court is confronted with conflicting precedents from a court of higher judicial authority.[72]
[111] Unless the precedents can be distinguished or reconciled, the more recent decision by the Court of Appeal should be followed, provided that it has expressly considered the conflicting decisions. Whether a precedent has been accepted, followed or implicitly endorsed by subsequent cases is also a factor.[73]
[112] In the present case, while the prosecution has established that both Pearson and Creswell were argued in Clohosy's factum, the Court of Appeal does not discuss, or overrule Pearson. Nor does it consider the Court of Appeal's decision in R. v. Commanda,[74] relied upon by the first trial judge.[75]
[113] Pearson is also supported by the Supreme Court's decision in Campbell and by the British Columbia Court of Appeal in both Creswell and Castro.
[114] To the extent that it can be argued that the Court of Appeal in Clohosy upheld the more restrictive approach of the first trial judge with respect to the disclosure obligation in the context of a stay of proceeding application, this Court feels bound by the contrary view expressed by our Court of Appeal in Pearson, a view that the Court considers to be implicitly endorsed by the Supreme Court's decision in Campbell.
B. The disclosure obligation with respect to relevant evidence pertaining to the credibility or reliability of witnesses or other evidence
[115] Disclosure encompasses the fruits of the investigation, i.e. material pertaining to its investigation of the accused,[76] and other information obviously relevant to the accused’s case.[77] It also includes relevant evidence pertaining to the credibility or reliability of witnesses[78] or the reliability of other types of evidence[79] within the control of the prosecution or law enforcement authorities.
[116] In R. v. McNeil the Supreme Court defined a duty to inquire when informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case.
[117] Charron J. wrote:
[50] The same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case. As the amicus curiae rightly states, “[t]he Crown and the defence are not adverse in interest in discovering the existence of an unreliable or unethical police officer” (factum, at para. 62). Doherty J.A. made the point forcefully in R. v. Ahluwalia (2000), 138 O.A.C. 154, commenting on the Crown’s failure to inquire further when confronted with the perjury of its own witness as follows (at paras. 71-72):
For reasons not shared with this court, the Crown does not appear to have regarded itself as under any obligation to get to the bottom of this matter. . . .
The Crown has obligations to the administration of justice that do not burden other litigants. Faced with its own witness’s perjury and the fact that the perjured evidence coincided with the incomplete disclosure that the Crown says it innocently passed to the defence, the Crown was obliged to take all reasonable steps to find out what had happened and to share the results of those inquiries with the defence. In my view, the Crown did not fulfill its obligations to the administration of justice by acknowledging the incomplete disclosure discovered by the defence, and after making limited inquiries, professing neither a responsibility for the incomplete disclosure nor an ability to provide any explanation for it. The Crown owed both the appellant and the court a fuller explanation than it chose to provide.
[51] Hence, by properly fulfilling its dual role as an advocate and officer of the court, Crown counsel can effectively bridge much of the gap between first party disclosure and third party production. I now turn to the police corollary duty to participate in the disclosure process.
[118] The accused rely heavily on this passage and rightly so. This duty to inquire is certainly applicable to the case at bar, particularly where the accused informed the prosecution during the proceedings of various allegations of police misconduct that potentially raised issues concerning the credibility or reliability of certain police officers.
[119] While the principle certainly applies, the concrete application of this duty to inquire and its contours are more difficult to define.[80]
[120] As one author wrote: "[t]he robustness of the "duty to inquire" affirmed in R. v. McNeil is likely to be the subject of much future litigation.”[81]
[121] Since McNeil, very little has been written on the scope of this duty and how it is expected to be met in practice by prosecutorial authorities.[82]
[122] It seems best in the context of this case to leave the scope of the duty and the ensuing disclosure obligations to be determined after further submissions by the parties on the particulars of the disclosure order to be issued.
C - Conclusion
[123] The conclusion that further disclosure is to be ordered leaves the case management of these two cases in a very unsatisfactory state.
[124] The first trial was supposed to begin in early November 2015, followed by the second. It does not appear likely that the shorter trial anticipated to last a month will even be held in the spring of 2016, with the very likely prospect of a long postponement given the docket of the Superior Court.
[125]
In the Court's view, it is therefore necessary
to determine what can be done pursuant to s.
V - The trial judge's powers to manage the trial
[126] Our Court of Appeal has summarized the state of the law on the trial judge's power to manage a criminal trial in R. v. Auclair.[83]
[127] Doyon J.A. first referred to a paper written by Justice Casey Hill[84] where he describes the powers to manage the trial:
Originally cast in terms of inherent authority to control the processes of the court and prevention of abuse of the process, it is today recognized that a trial judge has a duty to manage the trial process balancing fairness to the parties as well as efficient and orderly discharge of court process. Judicial management of litigation recognizes that "there is more at stake than just the interests of the accused". Management involves control, direction and administration in the conduct of a trial. This power, settled within a broad discretion, relates to the entirety of the trial proceeding extending beyond the scope of pre-trial case management rules designed for "effective and efficient case management".[85]
[128] Doyon J.A. then outlined the scope of the trial judge's powers to manage the trial:
55 A presiding judge has an inherent power to manage the trial, and a judge's powers of intervention in a criminal trial are considerable. This is understandable at a time when trials lasting several months or even years are relatively common, not to mention the impact of the Charter on the complexity of the files. A judge's role should no longer be limited to that of a mere arbitrator allowing parties to conduct their case as they see fit. A judge must have the power to make the orders necessary to ensure an orderly trial, without which the administration of justice risks being be thrown into disrepute.
56 The courts have recognized this power to control proceedings:
[57] I think something should be said about the trial management power. It is neither necessary nor possible to exhaustively define its content or its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in which evidence is called. The latter power is one that must be exercised sparingly because the trial judge does not know counsel's brief. However, a judge would not commit jurisdictional error in exercising that power unless the effect of the ruling was to unfairly or irreparably damage the prosecution. That did not occur here. While some other judge might not have made the order that the trial judge did in this case and might very well have seen the merit of immediately proceeding with the omnibus document motion, I am not convinced that the trial judge's decision to do otherwise was a jurisdictional error. On my reading of the record, the ruling did not prevent the prosecutor from calling his case. I agree with the application judge's view (at para. 227) that deferring the documents motion did not "unfairly or irreparably" damage the position of the prosecution.[[86]]
57 Recent provisions enacted by Parliament confirm these powers in the context of a megatrial.
58 The courts are also sometimes required to intervene to impose the order of the trials. This is what happened in R. v. Schertzer, for example. The Court of Appeal for Ontario had the following to say on the subject:
[146] We accept that the courts should be hesitant to second guess or monitor the tactical or strategic decisions of Crown counsel in deciding the order in which cases are tried. But where that decision leads to an unreasonable and unnecessary delay, the courts must protect the accused. Obviously, the trial court will give careful consideration to Crown submissions as to the order in which trials should proceed. But once the two indictments were laid before the Superior Court of Justice, that court had the power to order that Benoit's trial proceed before the trial of the long indictment so as to protect his constitutional rights.
[129] The Supreme Court has also recognized that "[f]or our justice system to operate, trial judges must have some ability to control the course of proceedings before them"[87] and the "means of ensuring that […] the proceedings remain focussed and on track."[88]
[130] A court has the "authority to do what is necessary, in the fulfilment of its mandate, to administer justice fully and effectively."[89] The "inherent or necessarily implied jurisdiction of the court"[90] includes "the authority to control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner."[91]
A - The scope of the power to establish schedules and impose deadlines on the parties [s. 551.3(1)(d) Cr. C.]
[131] Section 551.3(1)(d) of the Criminal Code provides that the case management judge may exercise the powers that a trial judge has before that stage, including:
(d) establishing schedules and imposing deadlines on the parties
[132] There does not appear to be any case law that has defined the scope of this specific case management power.[92]
[133] In his decision in Auclair, Doyon J.A. referred to the newly created position of the case management judge in Part XVIII.1 of the Criminal Code.
[134] The powers of the case management judge were established by the Fair and Efficient Criminal Trials Act,[93] also known as An Act to amend the Criminal Code (mega-trials). The Act was assented to June 26, 2011 and came into force on August 15, 2011.[94]
[135] The fairness and efficiency of criminal trials are the underlying concerns of Parliament.[95]
[136] In R. v. Find, Chief Justice McLachlin defines a fair trial as follows:
A fair trial, however, should not be
confused with a perfect trial, or the most advantageous trial possible from the
accused’s perspective. As I stated in R. v. O’Connor,
[137] In other words, fundamental fair justice is the litmus test. An unfair trial should not be the price of efficiency.
[138] Therefore, as underlined by Chief Justice McLachlin in Find, the ultimate goal is "to maintain an efficient trial process, unencumbered by needless procedural hurdles"[97] while ensuring "a fundamentally fair trial without unnecessarily complicating and lengthening trials and increasing the already heavy burden placed on jurors."[98]
[139] In order to shed light on the possible scope of the power to establish schedules and impose deadlines on the parties, one has to examine briefly the Report of the Review of Large and Complex Criminal Case Procedures (The LeSage/Code Report) because the Fair and Efficient Criminal Trials Act and Part. XVIII.1 of the Criminal Code addresses many of its recommendations.
[140] It is to be noted that other reports had examined these issues prior to the LeSage/Code report.
[141] The urgency of such reviews had also been underlined by the concerns expressed by various judges.
[142] In R. v. Durette, Finlayson J.A. of the Ontario Court of Appeal wondered whether we are "sacrificing justice on the shrine of process".[99]
[143] On April 13, 1995, Chief Justice Lamer also echoed these concerns when he emphasized the need "to cope with complexity and prolixity in legal proceedings" and wondered "whether the process will not collapse under its own weight" because by "concentrating on micro justice […] we lose sight of macro justice". He also highlighted the need to "find ways to retain a fair process but in the context of a process that can achieve practical results in a reasonable time and at reasonable expense."[100]
[144] Similarly, Moldaver J.A. (as he then was) stated that "[l]ong criminal trials are a cancer on our criminal justice system and they pose a threat to its very existence."[101]
[145] The LeSage/Code report described the attributes of successful case management and the importance of time limits:
The subject of judicial case management has been extensively studied, especially in the United States. It is widely accepted as a key factor in successful delay reduction initiatives and increased justice system efficiency. Although there is no monolithic definition or form for what we mean by the term “judicial case management”, successful regimes generally exhibit four main features: early and continuous judicial control over the case; time limits for each step in the process; constant monitoring to ensure compliance; and firm dates for judicial proceedings with strict controls on adjournments.[102]
[Emphasis added]
[146] The authors make the following general observations on time limits:
All of the leading studies of trial delay have noted that establishing time limits for each step in the judicial process is one of the most effective ways of reducing delays and improving efficiency. We all know from personal experience that we generally work diligently and efficiently when we are facing deadlines. If no deadlines are imposed, we put things off or give other things priority. Not surprisingly, the studies have found that the same common sense proposition applies to the underlying causes of trial delay.[103]
[Emphasis added]
[147] They address the issue of whether it is possible for a trial judge to impose time limits:
The more difficult issue is whether a trial judge can impose time limits. It is clear that time limits can be imposed on legal argument. The experience of the courts and the bar has generally been that time limits encourage better advocacy as long as they are reasonable. Every argument has its weak points and its strong points. Time limits force counsel to focus on the strong points. They also provide a built-in deterrent against repetition.
We believe that the same general principles apply to examinations and cross-examinations of witnesses. Every examination and cross-examination will have strong points and weak points and most counsel engage in some degree of repetition. As with time limits on legal argument, time limits on examinations and cross-examinations would encourage counsel to focus on the strong points and to avoid repetition.[104]
[Emphasis added]
[148] They also consider the Ontario Court of Appeal decision in R. v. Bradbury,[105] where the Court stated that it is not proper for a trial judge "in advance, to place any restriction on the length of time to be consumed by cross-examination."[106]
[149] They conclude their analysis of Bradbury in the following terms:
At the time of Bradbury no member of the Court of Appeal would ever have imagined that lawyers would be allowed to examine or cross-examine a single witness for 10, 15 or 20 days. We think it likely, in today’s changed legal context, that Bradbury should and will be revisited at some point.
In any event, what Bradbury specifically prohibits is placing an advance time limit on counsel’s examination or cross-examination of a witness. It does not prohibit a trial judge from engaging counsel in a discussion as to how long they anticipate their examination lasting and then setting a reasonable but flexible target for counsel. If the witness proves difficult or evasive or long-winded, or if some new issue arises unexpectedly during the witness’ evidence, the target can be adjusted. We believe that most lawyers work well under this discipline. In the rare case, where counsel is unwilling or unable to comply with a flexible target, the Court of Appeal will have to determine whether this is a reasonable application of the modern trial management power. We note that present members of the Court of Appeal, when conducting public inquiries, have imposed these kinds of flexible targets on the length of counsel’s examinations and they have worked well. We believe this to be the best tool available to control the extraordinary prolixity that has developed in some long complex trials.[107]
[150] It is obvious that the adoption of s. 551.3(1)(d) is one of the legislative responses to many of the concerns expressed in the LeSage-Code report.
[151] Establishing schedules and imposing deadlines on the parties necessarily encompasses time limits for oral submissions, the filing of motions and written submissions, the presentation of evidence during preliminary motions and the trial itself. These are tools that promote a fair and efficient criminal trial.
[152] Yet it must be acknowledged that the power to establish schedules and impose deadlines on the parties, or to impose time limits on the presentation of the evidence or the duration of a trial, while accepted and recognized in civil litigation,[108] is mostly unknown to Canadian criminal law.
[153] In R. v. Omar,[109] Justice Sharpe of the Ontario Court of Appeal raised a clear concern about the duration of the trial that clearly exceeds the time required to deal with the issues raised. He wrote:
[32] Judicial proceedings are not designed on the basis of a cost-benefit analysis, but there surely must be an element of proportionality that informs the manner in which trials are conducted. In this case, there has been a significant expenditure of resources with no benefit that I have been able to discern. The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants and legal aid. The purpose of this appeal, of course, is not to attribute blame for how an unfortunate situation developed which resulted in several weeks court time being swallowed up on a peripheral issue. Suffice it to say that every effort must be made to keep trials focused on the essential issues. If not, there is a serious risk that our adversary trial system will simply collapse under its own weight and we will all be the poorer. It is in the interest of all constituencies — those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and on appeal — to make the most of the limited resources at our disposal.
[154] As noted in a different context by the Supreme Court in R. v. Mahalingan: "Criminal proceedings should not go [on] longer than necessary."[110]
[155] On the basis of recent experience in our jurisdiction of trials that far exceeded the estimated timetable for their completion, it would appear that the time has come to heed to these concerns and consider if and to what extent schedules, deadlines and time limits may be set to streamline criminal trials.
[156] As stated by the Supreme Court in Hryniak v. Mauldin,[111] albeit in the context of civil litigation, a cultural shift is required:
[2] Increasingly, there is recognition that a cultural shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
[157] The general principles underlying this paradigmatic shift outlined by the Supreme Court in Hryniak v. Mauldin, which is also contemplated by the Fair and Efficient Criminal Trials Act, are easily transposed to the criminal context and may be adapted with appropriate consideration given to the Charter protections that apply in the criminal law context.
[158] The principles to be applied in promoting a fair and efficient criminal trial[112] may be summarized[113] as follows:
- The criminal justice system is premised upon the principles that the trial must be both fair and efficient. This cannot be compromised.
- Undue process and protracted trials, with unnecessary expense and delay, can prevent a fair and efficient criminal trial.
- Prompt judicial resolution of criminals charges allows the accused and her/his family, the victim and her/his family to get on with their lives.
- A fair and efficient criminal trial must permit a judge (or a jury) to find the facts necessary to resolve the criminal charges and to apply the relevant legal principles to the facts as found. However, a fair and efficient criminal trial is illusory unless it is also accessible, proportionate, timely and affordable to the accused, the prosecution and society.
- There is, of course, always some tension between accessibility, fairness and the search for truth but, the procedures (case management hearing, pre-trial conference and trial) used to determine criminal charges must be appropriate for each case. If the process is disproportionate to the nature of the issues raised during preliminary motions and the trial itself, then a fair and efficient trial will not be achieved.
- Counsel must, in accordance with their ethical obligations and the traditions of their profession, act in a way that facilitates rather than frustrates access to justice.
- The court's discretion includes an underlying principle of proportionality[114], which means taking account of the appropriateness of the procedure, its cost and impact on the criminal procedures, and its timeliness, given the nature and complexity of the issues at stake.
[159] As noted, the power to establish schedules, deadlines and time limits raises sensitive constitutional issues that must be addressed. These include: the fairness of the trial process from the point of view the parties and the community[115] and the accused's right to full answer and defence, including his or her right to present evidence.[116]
[160] A brief comparative-law detour is in order.
B - Comparative law
1) United States
[161] Time limits have been imposed in American civil litigation since SCM Corp. v. Xerox[117] and this has not been without controversy. The debate is now settled.[118] The existence of the power to set time limits is not denied, but the issue is its application to the particular circumstances of a case. Such a power has also been applied in the criminal context.[119]
2) England
[162] In England it has been recognized since Ashmore v. Corp. of Lloyd's,[120] that the parties do not have a right to unlimited time to try their cases. Lord Roskill wrote:
[I]n any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge's time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge's time as is necessary for the proper determination of the relevant issues.[121]
[163] This passage from Ashmore was relied upon by St-Pierre J. (as she then was) in Widdrington v. Wightman[122] and it was quoted with approval by our Court of Appeal in Droit de la famille — 092186[123] and Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Québec (Procureure générale).[124]
[164] Similarly, in the criminal law context, recent English decisions and practices clearly support the power to establish deadlines, schedules and time limits in preliminary proceedings or the trial itself.
[165] In the seminal case of R. v. Jisl,[125] Lord Justice Judge of the Court of Appeal, Criminal Division wrote:
114. The starting point is simple. Justice must be done. The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant. It is not however a concomitant of the entitlement to a fair trial that either or both sides are further entitled to take as much time as they like, or for that matter, as long as counsel and solicitors or the defendants themselves think appropriate. Resources are limited. The funding for courts and judges, for prosecuting and the vast majority of defence lawyers is dependent on public money, for which there are many competing demands. Time itself is a resource. Every day unnecessarily used, while the trial meanders sluggishly to its eventual conclusion, represents another day's stressful waiting for the remaining witnesses and the jurors in that particular trial, and no less important, continuing and increasing tension and worry for another defendant or defendants, some of whom are remanded in custody, and the witnesses in trials which are waiting their turn to be listed. It follows that the sensible use of time requires judicial management and control.
115. Almost exactly a year ago in R v Chaaban [2003] EWCA Crim 1012 this Court endeavoured to explain the principle:
35. The trial judge has always been responsible for managing the trial. That is one of his most important functions. To perform it he has to be alert to the needs of everyone involved in the case. That obviously includes, but it is not limited to, the interests of the defendant. It extends to the prosecution, the complainant, to every witness (whichever side is to call the witness), to the jury, or if the jury has not been sworn, to jurors in waiting. Finally, the judge should not overlook the community's interest that justice should be done without unnecessary delay. A fair balance has to be struck between all these interests.
…
37. … nowadays, as part of his responsibility for managing the trial, the judge is expected to control the timetable and to manage the available time. Time is not unlimited. No one should assume that trials can continue to take as long or use up as much time as either or both sides may wish, or think, or assert, they need. The entitlement to a fair trial is not inconsistent with proper judicial control over the use of time. At the risk of stating the obvious, every trial which takes longer than it reasonably should is wasteful of limited resources. It also results in delays to justice in cases still waiting to be tried, adding to the tension and distress of victims, defendants, particularly those in custody awaiting trial, and witnesses. Most important of all it does nothing to assist the jury to reach a true verdict on the evidence.
38. In principle, the trial judge should exercise firm control over the timetable, where necessary, making clear in advance and throughout the trial that the timetable will be subject to appropriate constraints. With such necessary even-handedness and flexibility as the interests of the justice require as the case unfolds, the judge is entitled to direct that the trial is expected to conclude by a specific date and to exercise his powers to see that it does."
116. The principle therefore, is not in doubt. This appeal enables us to re-emphasise that its practical application depends on the determination of trial judges and the co-operation of the legal profession. Active, hands-on, case management, both pre-trial and throughout the trial itself, is now regarded as an essential part of the judge's duty. The profession must understand that this has become and will remain part of the normal trial process, and that cases must be prepared and conducted accordingly.[126]
[166] After Jisl was rendered, Lord Woolf, the Lord Chief Justice of England and Wales, issued, on March 22, 2005, the Protocol on the Control and Management of Heavy Fraud and Other Complex Criminal Cases.[127]
[167] The protocol emphasized the need to control the length of trials:
There is a broad consensus that the length of fraud and trials of other complex crimes must be controlled within proper bounds in order:
(i) To enable the jury to retain and assess the evidence which they have heard. If the trial is so long that the jury cannot do this, then the trial is not fair either to the prosecution or the defence.
(ii) To make proper use of limited public resources: see Jisl [2004] EWCA Crim 696 at [113] - [121].
There is also a consensus that no trial should be permitted to exceed a given period, save in exceptional circumstances; some favour 3 months, others an outer limit of 6 months. Whatever view is taken, it is essential that the current length of trials is brought back to an acceptable and proper duration.
This Protocol supplements the Criminal Procedure Rules and summarises good practice which experience has shown may assist in bringing about some reduction in the length of trials of fraud and other crimes that result in complex trials. Flexibility of application of this Protocol according to the needs of each case is essential; it is designed to inform but not to prescribe.
This Protocol is primarily directed towards cases which are likely to last eight weeks or longer. It should also be followed, however, in all cases estimated to last more than four weeks. This Protocol applies to trials by jury, but many of the principles will be applicable if trials without a jury are permitted under s. 43 of the Criminal Justice Act 2003.
The best handling technique for a long case is continuous management by an experienced Judge nominated for the purpose.[128]
[Emphasis added]
[168] The assumption in the Protocol is that the proper use of public resources, and the jury's capacity to retain and assess the evidence, require the prosecution to present its case within an upper limit of 6 months unless it establishes that the exceptional circumstances of the case justify a longer trial.
[169] Judicial experience supports the general approach of the Protocol towards the upper time limits of a jury trial.
[170] The Protocol also underline the importance of distinguishing the issues that are in dispute from those which are not in dispute:
(d) In many fraud cases the primary facts are not seriously disputed. The real issue is what each defendant knew and whether that defendant was dishonest. Once the judge has identified what is in dispute and what is not in dispute, the judge can then discuss with the advocate how the trial should be structured, what can be dealt with by admissions or agreed facts, what uncontroversial matters should be proved by concise oral evidence, what timetabling can be required under Rule 3.10 Criminal Procedure Rules, and other directions.[129]
[Emphasis added]
[171] With respect to the length of the trial, the Protocol provides the following guidelines:
(a) Case management on the above lines, the procedure set out in paragraph 1 (iv), may still be insufficient to reduce the trial to a manageable length; generally a trial of 3 months should be the target, but there will be cases where a duration of 6 months or, in exceptional circumstances, even longer may be inevitable.
(b) If the trial is not estimated to be within a manageable length, it will be necessary for the judge to consider what steps should be taken to reduce the length of the trial, whilst still ensuring that the prosecution has the opportunity of placing the full criminality before the court.
(c) To assist the judge in this task,
(i) the lead advocate for the prosecution should be asked to explain why the prosecution have rejected a shorter way of proceeding; they may also be asked to divide the case into sections of evidence and explain the scope of each section and the need for each section.
(ii) the lead advocates for the prosecution and for the defence should be prepared to put forward in writing, if requested, ways in which a case estimated to last more than three months can be shortened, including possible severance of counts or defendants, exclusions of sections of the case or of evidence or areas of the case where admissions can be made.
(d) One course the judge may consider is pruning the indictment by omitting certain charges and/or by omitting certain defendants. The judge must not usurp the function of the prosecution in this regard, and he must bear in mind that he will, at the outset, know less about the case than the advocates. The aim is achieve fairness to all parties.
(e) Nevertheless, the judge does have two methods of pruning available for use in appropriate circumstances:
(i) persuading the prosecution that it is not worthwhile pursuing certain charges and/or certain defendants.
(ii) severing the indictment. Severance for reasons of case management alone is perfectly proper, although judges should have regard to any representations made by the prosecution that severance would weaken their case. Indeed the judge’s hand will be strengthened in this regard by rule 1.1 (2) (g) of the Criminal Procedure Rules. However, before using what may be seen as a blunt instrument, the judge should insist on seeing full defence statements of all affected defendants. Severance may be unfair to the prosecution if, for example, there is a cut-throat defence in prospect. For example, the defence of the principal defendant may be that the defendant relied on the advice of his accountant or solicitor that what was happening was acceptable. The defence of the professional may be that he gave no such advice. Against that background, it might be unfair to the prosecution to order separate trials of the two defendants.[130]
[Emphasis added]
[172] The English experience is certainly a persuasive guide in performing the case management duties contemplated by Part XVIII.1 of the Criminal Code.
[173] A recent report by the Rt Hon Sir Brian Leveson, president of the Queen’s Bench Division, entitled Review of Efficiency in Criminal Proceedings, also supports “robust case management.”[131]
[174] From this review there is no doubt that s. 551.3(1)d) provides that a case management judge and a trial judge may exercise the power to establish schedules and impose deadlines on the parties, including time limits for the length preliminary motions and the trial itself.
[175] Such a power must be exercised with caution.
[176] When Hilton J.A. refused the leave to appeal in the case of Widdrington v. Wightman,[132] he added the following observations which are certainly apposite in the context of a criminal trial:
8 Ultimately, however, it belongs to the court concerned to determine, at the outset, how much of the court's time the parties will be provided to complete their case, whatever request the parties have made, and however complex or important that case may be. This is an essential feature of case management, without which administrative chaos would ensue to the detriment of all concerned, and in particular to other litigants who are waiting in line to have their own cases heard. The Superior Court is not the private reserve of anyone to use as they wish, but a public institution to which access must be available to all on an equal basis. As Farley, J. of the Ontario Court of Justice - General Division observed in Re Cadillac Fairview Inc., when speaking of the justice system, it "... is to be there for everyone - everyone is entitled to their day in Court - but not someone else's day."3
9 Once a trial begins, however, it becomes the exclusive province of the trial judge to manage the allocation of time, keeping in mind the framework established initially. Nevertheless, flexibility is essential in making such determinations. A trial judge cannot be constrained by a prior order such as the one issued by Rolland, C.J. That basic concept has been recognized by St-Pierre, J. Just as a trial judge would not require parties to use the initial time allotment when it turns out less time is necessary, so too do trial judges enjoy the absolute discretion to extend the initial time allotment when they are persuaded the circumstances and the ends of justice so require.
10 After all, the objective of a trial is to do justice between the parties. It is not to be fixated on time as if bringing the trial in on schedule is the paramount task of the trial judge and thus more important than achieving that overriding objective. Trial judges must be careful to avoid being perceived as more interested in acting as timekeepers and what Posner, J. of the United States Court of Appeals for the Seventh Circuit has described as displaying "an unhealthy preoccupation with the clock".4
11 Like most forms of human activity, the conduct of a trial is unpredictable. It does not run with a pre-determined script as if it were a theatrical performance, nor can anyone judge with absolute precision when it will end once it has begun. The longer the estimated time of the trial, the more difficult it becomes to gauge accurately how long it will really take once it is underway, even with active management by a trial judge. That is so even in the case of what amounts to a re-trial. It would be nothing short of miraculous if a 240-day trial were actually to be completed with judgment on the merits reserved precisely on the 240th day.
[Emphasis added]
[177] The unpredictability of any trial is similarly described by John E. Rumel:
[E]stimating reasonable time limits is not an exact science. Issues may take on unanticipated significance after a few days of trial, more evidence than anticipated may be necessary to prove or rebut a point, or witnesses and counsel may be unduly hostile or obstructionist. Moreover, even when a trial proceeds as anticipated, the most informed time estimate may become unreasonable. Thus, the trial judge must be willing to grant extensions to accommodate the necessary expansion of issues and proof, protect against hostility or delay from witnesses or opposing counsel, and correct mistaken initial time estimates. Accordingly, and notwithstanding the legitimate desire to avoid changing the rules mid-trial, trial judges must be willing to grant reasonable extensions to ensure due process.[133]
[178] Thus, any schedules, deadlines or time limits may be varied or modified where there is a material change of circumstances.[134]
[179] An additional reason exists to be particularly prudent in exercising the power to set time limits to preliminary motions or the trial itself. As noted by Rosenberg J.A. in R. v. Felderhof, these types of powers "must be exercised sparingly because the trial judge does not know counsel's brief."[135]
[180] Moldaver J. expressed similar preoccupations in R. v. Anderson[136] when discussing the court's power to control tactics and the conduct of the case before the court:
[59] While
deference is not owed to counsel who are behaving inappropriately in the
courtroom, [O]ur adversarial system does accord a high degree of
deference to the tactical decisions of counsel. In other words, while courts
may sanction the conduct of the litigants, they should generally refrain
from interfering with the conduct of the litigation itself. In R. v.
S.G.T.,
In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel . . . . [C]ounsel will generally be in a better position to assess the wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge. By contrast, trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party. . . .
The corollary of the
preceding is that trial judges should seldom take it upon themselves, let alone
be required, to second-guess the tactical decisions of counsel. Of course,
trial judges are still required to “make sure that [the trial] remains fair and
is conducted in accordance with the relevant laws and the principles of
fundamental justice”: Lavallee, Rackel & Heintz v. Canada (Attorney General),
[60] Crown
counsel is entitled to have a trial strategy and to modify it as the trial
unfolds, provided that the modification does not result in unfairness to the
accused: Jolivet, at para. 21. Likewise, as this Court recently held in R.
v. Auclair,
[61] Finally, as with all Crown decision making, courtroom tactics or conduct may amount to abuse of process, but abuse of process is not a precondition for judicial intervention as it is for matters of prosecutorial discretion.
C - The factors to be considered in establishing schedules, imposing deadlines and setting time limits
[181] In the application of the power granted by s. 551.3(1) (d) one must weigh many factors. Primarily, one must take into account that a fair and efficient trial must respect to right to a fair hearing for both the parties and society.
[182] In U.S. v. Hildebrand,[137] the District Court judge mentioned the following factors:
[4] Extrapolating from these precedents, the court finds the following general principles should guide the court in fashioning appropriate limitations for the sake of comprehensibility, economy, and fairness: (1) the court must impose no restriction that causes the information presented to become incomprehensible; and (2) no restriction or limitation should be imposed arbitrarily. In aid of these principles, the court will be guided by these general rules: (1) limitations must only be imposed when necessary to the just and efficient presentation of evidence, or, to put it another way, "if it isn't broken, don't fix it," which means leave areas that do not appear to be a problem well enough alone; (2) limitations should be made on the basis of an informed analysis, including review of proposed witness lists and proffered testimony, exhibits, or estimates of trial time; (3) no limitation may be imposed without balancing probative value against issues of delay, confusion, or waste of time pursuant to Fed. R.Evid. 403 and 611; (4) the parties should be allowed to decide how best to use whatever allotment is given them; (5) any pre-trial limitations must be flexibly administered during trial to prevent any sacrifice of justice to efficiency; (6) changes in allotments, either admitting additional evidence or testimony or precluding more evidence or testimony than anticipated, must only be made with notice and upon a determination of need.
[183] These factors may be supplemented by drawing upon the English Criminal Procedure Rules 2015. The overriding objective of the Rules is to deal justly with criminal cases, including efficiently and expeditiously, which is similar with the legislative goals of the Fair and Efficient Criminal Trials Act.
[184] Rule 1.1 defines the overriding objective of the procedural code established by the Rules.
(ii) The Overriding Objective
124. The overriding objective and the duty of participants in a criminal case. The overriding objective of the Criminal Procedure Rules is that criminal cases be dealt with justly.
Dealing with a criminal case justly includes:
(1) acquitting the innocent and convicting the guilty;
(2) dealing with the prosecution and the defence fairly;
(3) recognising the rights of a defendant,
(4) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(5) dealing with the case efficiently and expeditiously;
(6) ensuring that appropriate information is available to the court when bail and sentence are considered; and
(7) dealing with the case in ways that take into account:
(a) the gravity of the offence alleged,
(b) the complexity of what is in issue,
(c) the severity of the consequences for the defendant and others affected, and
(d) the needs of other cases.
Each participant, in the conduct of each case, must:
(i) prepare and conduct the case in accordance with the overriding objective;
(ii) comply with the Criminal Procedure Rules, practice directions and directions made by the court; and
(iii) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by the Criminal Procedure Rules, any practice direction or any direction of the court.
The court must further the overriding objective in particular when exercising any power given to it by legislation (including the Criminal Procedure Rules), when applying any practice direction, or when interpreting any rule or practice direction.[138]
[185] The duties of the court and the parties are described in Rule 2.2. and Rule 2.3:
125. Duties of the court and of the parties. The court must further the overriding objective by actively managing the case.
Active case management includes:
(1) the early identification of the real issues;
(2) the early identification of the needs of witnesses;
(3) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case;
(4) monitoring the progress of the case and compliance with directions;
(5) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;
(6) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;
(7) encouraging the participants to co-operate in the progression of the case; and
(8) making use of technology.
The court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible.
Each party must actively assist the court in fulfilling its duty of active case management, without or if necessary with a direction, and must apply for a direction if needed to further the overriding objective.[139]
[186] The various factors enumerated in U.S. v. Hildebrand, R. v. Jisl, the Protocol and the English Criminal Procedure Rule 2015 are useful to formulate a list of several relevant factors.
VI - Summary of the relevant factors to be considered under s. 551.3(1)(d)
[187] In order to promote an efficient and fair trial, the case management judge or the trial judge may establish schedules, impose deadlines on the parties or set time limits with respect to preliminary motions, or the trial itself. He or she may take into account the following factors:
- the right of the prosecution, the accused and society to a fair hearing and a just determination of the case through accurate fact findings;
- the right of the prosecution to have a reasonable opportunity to present its evidence against the accused;
- the right of the accused to make a full answer and defence, including his or her right to present evidence;
- the need to promote jurors' comprehension and facilitate their capacity to retain and assess the evidence that they have heard;
- the need to present a coherent narrative of the case and avoid a distorted view of the evidence that would impair the search for truth;
- a cost-benefit analysis of the evidence to determine whether its value to the correct disposition of the allegations contained in the indictment exceeded its cost to the litigation process;
- the need to avoid the needless presentation of cumulative evidence;
- the need to encourage efficient, focused and well-prepared advocacy;
- the gravity of the offence alleged;
- the facts that are not in dispute;
- the complexity of disputed issues;
- the severity of the consequences for the accused and others affected;
- the needs of other litigants;
[188] These factors should be assessed at a full hearing where the parties make submissions concerning the anticipated time required for their case.
[189] A proper foundation should be presented to the case management judge or the trial judge: witness lists, proposed testimony, exhibits, and estimates of trial time. The increased use by prosecutorial authorities of trial books, whether on paper or electronic, is one of the most effective tools to provide such information to the court.
[190] With respect to the accused's case, the case-to-meet rule, the right to silence or the right against self-incrimination are not grounds to refuse to participate in evaluating the anticipated time required for preliminary motions or the trial itself[140]. Competent counsel will rarely leave the preparation of a possible defence to the last minute. In most cases, counsel will be in a position to address the time required for an anticipated defence, whether it is presented or not.
VII - Obligations of the parties
[191] A fair and efficient criminal trial is a joint endeavour of the judiciary, the parties and the law enforcement authorities for the benefit of society and the parties[141]
[192] A necessary component of any successful case management is civility "both inside and outside the courtroom"[142] which is to be expected given the importance of counsel's duties as officers of the court.[143]
[193] Disciplined and well-focused advocacy is expected from the parties, not one "carried out with the accuracy of a blunderbuss."[144]
[194] There are also some specifics expectations from both the prosecution and the defence.
A - The prosecution
[195] As noted by the Court of Appeal in R. v. Auclair, "the prosecution must ensure that it is prepared to proceed within a reasonable time and that it has a plan"[145] The expectation is "a well thought-out plan"[146] in order "to bring proceedings to completion."[147] The case management judge must ensure that trials are "held under acceptable conditions."[148]
[196] But it must be remembered that "courts cannot base their management decision on a lack of planning" by the prosecution.[149]
[197] In short, as the Supreme Court stated in its judgment upholding the decision of the Court of Appeal, the prosecution must have "a realistic plan for taking […] charges to trial and conducting the trial within a reasonable time."[150]
[198] There is also a consensus that no manageable trial may be held unless a number of conditions are present.[151] Timely disclosure has to be provided. Disclosure should be accessible, searchable and appropriately inventoried where the volume of disclosure warrants it.[152] The indictment should be focused and trimmed to the need of the case.[153] The number of accused has to be limited in order to make sure that the case is manageable.[154] The length of the trial should be realistic in order to foster juror's comprehension.
[199] In every case, the unnecessary cumulative evidence[155] that is, the danger of "pushing the evidentiary envelope well beyond what is required to obtain a conviction"[156] needs to be addressed before a case proceed to trial.
B - The defence
[200] What about the duty of defence counsel in fostering and ensuring a fair and efficient trial?
[201] It is essential to first underline the importance of zealous advocacy, as noted by Rosenberg J.A. in R. v. Felderhof:
[84] Nothing said here is inconsistent with or would in any way impede counsel from the fierce and fearless pursuit of a client's interests in a criminal or quasi-criminal case. Zealous advocacy on behalf of a client, to advance the client's case and protect that client's rights, is a cornerstone of our adversary system. It is "a mark of professionalism for a lawyer to firmly protect and pursue the legitimate interests of his or her client". As G. Arthur Martin said, "The existence of a strong, vigorous and responsible Defence Bar is essential in a free Society" (emphasis added). Counsel have a responsibility to the administration of justice, and as officers of the court, they have a duty to act with integrity, a duty that requires civil conduct.[157]
[202] Of particular relevance in this case, and as explained by Rosenberg J.A. in R. v. Felderhof, "[t]he defence has the right to make allegations of abuse of process and prosecutorial misconduct, but only where those allegations have some foundation in the record, only where there is some possibility that the allegations will lead to a remedy and only at the appropriate time in the proceedings."[158]
[203] While vigorous representation of the accused is to be expected it is also the "obligation [of] defence counsel as officers of the court to act responsibly."[159]
[204] It is true that "[i]t will often be difficult for defence counsel to assess whether there is a realistic chance of a Charter argument succeeding or a remedy being granted",[160] it must be pointed out that no responsible defence counsel should pursue frivolous or spurious Charter applications.[161]
[205] He or she is expected to weed out "speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming […] requests."[162]
[206] At the end of the day, successful case management is a joint responsibility of all those involved in order to make certain that “common sense and the law need not be strangers.”[163]
[207] Having those principles in mind, it is now time to apply them.
VIII - Application of the principles to this case
[208] The Court is of the view that a more robust approach to the case management of these two cases is required.
[209] On the basis of oral and written submissions previously made by the parties, the Court is of the view that an additional hearing on the terms and conditions of the disclosure order is required. The parties shall each have half a day to make their submissions. The parties will file in writing before that hearing a draft disclosure order.
[210] The Court will not adopt a bifurcated procedure in the wiretap challenge.
[211] In the context of the wiretap challenge, an extended scope of cross-examination is granted to allow the presentation of evidence about an alleged pattern of police misconduct.
[212] The accused will have a maximum of three days to complete their challenge to the wiretap authorization and the prosecution will be granted a day to respond. An additional half a day will be devoted to oral submissions by each party.
[213] Since the alleged police misconduct overlaps with an already filed abuse of process application, the Court, contrary to the concerns expressed earlier in the proceedings, will hear the abuse of process question for a maximum period of three days for the accused and a day for the prosecution. Again, an additional day for submissions will be set aside.
[214] Unless the prosecution makes submissions to the contrary, the Court is therefore inclined to conclude that the threshold test is met for an abuse of process hearing because “the proposed evidence, taken at its highest, is realistically capable of establishing a pattern of police misconduct”.[164] In other words, unless the prosecution forcefully challenges the Court’s tentative view, it cannot be said that “there is no reasonable likelihood”[165] of establishing a pattern of police misconduct. If there is any doubt about the threshold test, the Court believes it should order a hearing on the abuse of process issue.[166]
[215] At the end of the day, in the Court's view, if appropriate time limits are set, a cost/benefit analysis supports a hearing to adjudicate finally this issue. So far, the discussions and submissions with respect to the abuse of process issue have already exceeded the expected time required to hear evidence and submissions on this issue.
[216] Finality must come on this issue, which has hovered over these cases since the beginning. The accused deserve a hearing with prescribed limits where they will have the opportunity to present evidence supporting their claims.
[217] A maximum of five additional days will be devoted for the determination of any other outstanding issues.
[218] After hearing the parties at a date to be set, the Court will issue a final order establishing a schedule for all remaining motions including the order in which they will be heard. Time limits will be set on the presentation of the evidence and the length of oral submissions. Deadlines will be imposed for the filing of motions, supporting material and written submissions.
[219] FOR THESE REASONS, THE COURT:
[220] ORDERS a hearing to establish a final schedule, impose deadlines and set time limits on the remaining case management issues;
[221] ORDERS a hearing to determine the specific terms and conditions of the disclosure order to be issued.
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__________________________________ GUY COURNOYER, S.C.J. |
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Me Robert Rouleau Me Vicky Pilote-Henry |
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Attorneys for the prosecution |
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Me Thomas Walsh |
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Attorney for Brian Bordo, Martin Castilloux, Gilles Couture and Martin Clohosy |
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M. Werner Kyling |
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Representing himself |
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Date of hearings: |
November 5 and 16; December 7 and 14, 2015 |
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Oral judgment: |
January 27, 2016 |
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APPENDIX
R. c. Clohosy,
1. Le refus de divulguer les circonstances entourant la demande d'extradition
[15] La théorie de l'appelant repose sur la prétention selon laquelle les procédures d'extradition dirigées contre lui ont pour origine des pseudo-forfaitures consistant en des allégations de fabrication de preuve faite par des policiers et réalisée avec la complicité de l'ensemble des procureurs de la poursuite impliqués dans ces procédures. Ce complot se serait continué dans les dossiers qui ont conduit aux accusations criminelles portées contre lui.
[16] Ces arguments, qui ont occupé une place beaucoup trop importante parmi ceux plaidés par l'appelant, tant en première instance qu'en appel, doivent être rejetés.
[17] À l'origine, l'appelant était l'un des accusés visés par une demande d'extradition faite par les États-Unis d'Amérique. Le juge Brunton, devant qui avait témoigné le policier Dany Fournier, a rejeté cette procédure le 2 août 2006.
[18] À l'occasion du débat entourant la procédure en extradition, l'appelant a requis une communication étendue de la preuve. Le juge Brunton a rejeté cette requête en s'exprimant ainsi :
[32] […] An examination of the description of the material sought and the desired witnesses indicate clearly that the Respondents [dont l'appelant] would wish to delve deeply into the prosecutorial planning and strategy following a major police investigation. This far exceeds any relevant consideration which the extradition judge has during the extradition hearing proper.
[19] Contrairement à ce que soutient l'appelant, ce jugement n'affirme pas qu'aucune preuve d'activité criminelle l'impliquant a été présentée au juge d'extradition, mais bien plutôt que « [t]hese offences are not those, and form no part of, the general conspiracies alleged in the ATP [offences described in the Authority to Proceed]. ».
[20] Cette tentative d'étendre le débat à des procédures étrangères au dossier a pris plusieurs formes qui, chaque fois, se sont soldées par un échec. Ainsi, le 4 février 2008, lors de son procès, l'appelant présente au juge une requête intitulée « Notice of application for disclosure under S.24(1) of the Charter » dans laquelle il demande la divulgation d'une série de documents concernant les procédures d'extradition intentées contre lui et que soient aussi assignés à comparaître différents acteurs impliqués dans ces procédures, dont un policier américain et des représentants de la poursuite. Cette demande n'a été que partiellement acceptée par le ministère public.
[21] Insatisfait de l'information communiquée dont certains passages avaient été caviardés, l'appelant présente le 14 février 2008 une seconde requête pour que soit divulguée toute l'information qu'il estime pertinente. Le 25 février 2008, encore déçu par l'information reçue, il dépose cette fois une requête intitulée « Notice of application for a stay of proceedings ». Les allégations fondant cette requête suggèrent que la poursuite et les policiers auraient manipulé la preuve et tenté abusivement de l'extrader, cette démonstration étant toutefois tributaire du sort réservé à la demande en divulgation de la preuve.
[22] Le 18 mars 2008, le juge rejette la requête amendée en divulgation de la preuve au motif qu'elle ne vise pas à démontrer l'innocence des requérants dont l'appelant fait partie. Elle est de plus jugée irrecevable parce qu'elle vise des étrangers et porte sur des informations protégées par le secret professionnel. Finalement, le juge estime que la démonstration de l'appelant est non concluante quant à la probabilité d'une preuve pertinente détenue injustement par la poursuite.
[23] Compte tenu de ce résultat, l'appelant n'a pas pu continuer sa requête en arrêt des procédures, incapable de faire autrement la preuve de ses allégations de malversation.
[24] L'avocat de l'appelant a aussi déposé des dénonciations privées contre les policiers impliqués dans les procédures en extradition invoquant les mêmes malversations; dénonciations rejetées par la Cour du Québec.
[25] L'appelant a également contesté en vain différentes autorisations judiciaires en écoute électronique, réitérant au soutien de sa position l'existence de malversations de la part des mêmes policiers.
[26] Finalement, la thèse de la malversation a été à nouveau reprise sans succès à l'occasion d'une demande de réduction des peines que le juge s'apprêtait à lui infliger.
[27] L'appelant avance qu'il n'a pu se faire entendre valablement et qu'il a été privé de présenter une preuve au soutien de ses prétentions.
[28] Lors de son opposition aux autorisations judiciaires d'écoute électronique, l'appelant avait pourtant eu l'occasion de présenter sa thèse de manière exhaustive en vue d'inclure dans son arsenal de contestation les prétendues irrégularités entourant le dossier d'extradition. Il a pu, à cette occasion, conduire un contre-interrogatoire poussé du policier Dany Fournier, s'agissant du même témoin qu'il avait déjà longuement contre-interrogé devant le juge Brunton, et ce, sans résultat probant.
[29] Bref, au moment de rejeter la demande visant à invalider l'autorisation judiciaire d'écoute électronique ou celle concernant la communication additionnelle de la preuve, le juge avait eu l'occasion, deux fois plutôt qu'une, d'entendre les arguments de l'appelant sur la question de l'extradition et de juger de leur pertinence.
[30] Il a eu raison de refuser l'invitation visant à faire porter le débat sur des considérations étrangères à la détermination de la culpabilité ou de l'innocence de l'accusé. Les questions soulevées par l'appelant reposaient uniquement sur des conjectures et des prétendues irrégularités dont la valeur probante a pu être appréciée par le juge, notamment lors du témoignage du policier Fournier. Il s'agit ici d'une question de pure appréciation relevant du domaine privilégié du juge d'instance.
[31] Dans les faits, l'appelant a convié le juge à autant de procès qu'il y avait d'hypothèses soulevées par lui. Une telle approche risquait de distraire indûment le jury de sa véritable mission, sans compter que le débat proposé rendait imprévisible la fin du procès qui risquait de se transformer en véritable commission d'enquête mettant en cause le comportement professionnel des officiers de l'État visés par ces allégations.
[32] Même aux fins de s'en prendre seulement à la crédibilité de la preuve de la poursuite, l'exercice proposé par l'appelant demeurait périlleux. Les réponses données à ses questions sur des faits dits « collatéraux » le liaient sans qu'il ait pu en limiter les effets par une contre-preuve, créant ainsi un risque accru que le procès s'enlise dans des considérations périphériques.
[33] Incidemment, les propos que tenait notre collègue la juge Côté, alors qu'elle était à la Cour supérieure, dans l'affaire R. c. Demers, trouvent ici application avec beaucoup de justesse :
[29] […] Ces faits, bien que collatéraux à notre dossier, sont admissibles afin d'attaquer la crédibilité du témoin en contre-interrogatoire, mais l'on ne saurait permettre qu'un témoin soit contredit, point par point, sur tous les faits collatéraux qui sont soulevés lors du contre-interrogatoire.
[30] Tel que mentionné à l'audience, un tel procès serait sans fin, si une partie était admise à contredire un témoin sur tous les points abordés lors du contre-interrogatoire.
[31] De plus, cette preuve pourrait laisser croire au jury qu'il s'agit non plus du procès des accusés, mais bien du procès du témoin.
[32] Cela dit, toute la preuve pour être admissible doit avoir une pertinence logique avec les faits que l'on cherche à établir. J'estime que la preuve proposée n'est pas pertinente ni ne constitue une preuve logique d'un fait à prouver au dossier.
[Soulignement ajouté.]
[34] Le juge a conclu que n'avait pas été démontrée la vraisemblance de la thèse d'un complot impliquant le ministre de la Justice du Canada, les agences d'enquêtes canadiennes, le Procureur général du Québec et ses représentants, un « district attorney » américain ainsi que des agents américains du « drug enforcement agency », visant à obtenir injustement l'extradition de l'appelant.
[35] Ce dernier ne fait pas voir d'erreurs manifestes et déterminantes dans l'appréciation de la preuve faite par le juge quant à ce constat et celle conduisant à la décision selon laquelle le volet « dossier extradition » est sans lien logique avec les questions que le jury avait à trancher.
[The underlined passages are added, except in the quoted passage of Demers where the underlined passages were added by the Court of Appeal]
R. c. Bordo,
[19] À l'instar de Martin Clohosy, les appelants ont beaucoup insisté sur leur droit d'être informés des circonstances entourant le processus d'extradition lancé contre eux à la demande des autorités américaines. Rappelons que ces procédures d'extradition se sont terminées par leur rejet à la suite du jugement prononcé par la Cour supérieure le 2 août 2006.
[20] Les appelants, lors d'une requête en arrêt des procédures s'étalant sur 131 pages, ont demandé au juge de première instance d'assigner à comparaître onze personnes dont deux juges, cinq avocats agissant pour le compte du DPCP, deux policiers de la Sûreté du Québec et deux policiers américains, et ce, en vue d'obtenir de ces personnes des informations relatives aux procédures d'extradition.
[21] Cette requête s'apparentait à une multitude d'autres procédures déjà présentées par les appelants et d'autres coaccusés visant la même finalité.
[22] Le juge a accueilli la requête de la poursuite en rejet de cette demande inusitée, et ce, essentiellement pour les raisons suivantes :
[13] This is exactly the same situation here. Over and over, Kyling [et les appelants] said that he would like to hear Tremblay and others to explain the alleged contradictions or "lies" contained in documents or in testimonies. Again, this is not the criteria. During the trial itself, that is during the presentation of the evidence to determine if the accused are guilty or not, the accused will be allowed to cross-examine the witnesses presented by the Crown and to focus on the alleged contradictions in their testimonies, provided the rule of pertinence is followed. This will allow them full answer and defence.
[…]
[17] What is more here, the Court has not the slightest clue as to what those witnesses would say if they were to testify on the motion for stay of proceedings for abuse of process. This motion is nothing but a fishing expedition and, as Me Gallant has reminded the Court, the Court is not a commission of inquiry.
[Soulignement ajouté.]
[23] En l'absence d'un fondement factuel sérieux appuyant un tant soit peu la possibilité raisonnable, d'une part, que la preuve recherchée par les appelants existe et, d'autre part, qu'elle soit d'une certaine utilité en vue de résoudre les questions en litige, le juge a été bien avisé de refuser de s'engager dans des débats périphériques et non essentiels aux fins de trancher la question centrale relative à l'innocence ou la culpabilité des appelants.
[24] Pour ces raisons et celles déjà données en réponse à la même question posée dans l'arrêt décidant du pourvoi de Martin Clohosy, ce moyen d'appel doit être rejeté.
[Emphasis added]
[12] 2006 QCCS 4211.
[13]
R. v. Clohosy,
[14]
See R. v. DeSousa,
[15]
R. v. Bordo,
[16]
Canada v. Craig,
[17]
[18]
Canada v. Craig,
[19]
U.S.A. v. Anderson,
[20] Robert W. Hubbard, Peter M. Brauti and Scott K. Fenton, Wiretapping
and Other Electronic Surveillance: Law and Procedure, vol. 2, Toronto
(Ont.), Canada Law Book, 2015, loose-leaf updated March 2015, at p. 9-41 to
9-46; see also R. v. Green,
[21]
[22] Information to obtain, at p. 15.
[23] R.
v. Bellefroid,
[24] 2015 QCCS 5454.
[25] Mr. Kyling was unable to participate in the debate due to health reasons.
[26] See R. v. Bordo,
[27] Henry v. British Columbia (Attorney General),
[28] This is one of the issues that the Court has to decide.
[29]
[30] R. v. Davey,
[31] Another example is where, in an e-mail to the Court on December 2, 2015, the prosecution raised the issue of whether the disclosure motions filed by Mr. Kyling respected the procedural formalities provided for in the Rules of the Court. While self represented accused, no doubt, should respect the Court's rules, at this stage of the proceedings, on a retrial, it would appear more urgent to determine whether the disclosure sought by Mr. Kyling should be ordered or not as opposed to whether or not procedural niceties were faithfully observed: see R. v. Blom (2002), 167 C.C.C. (3d) 332 (Ont. C.A.), par. 21-22 where it was noted that "procedural rules are servants not masters. They are servants to the cause of the just and expeditious resolution of disputes. Procedural rules are important, but they are not to be rigidly applied without regard to their underlying purpose".
[32] R.
v. Boisvert, [2014] Q.J. No 666,
[33] 2009 SCC 3,
[34] S. Penney, V. Rondirelli and J. Stribopoulos, Criminal Procedure in Canada, Markham (ON), LexisNexis, 2011, § 7.11, at p. 421.
[35] R. v. Stinchcombe,
[36]
2009 SCC 3,
[37] Blank v. Canada (Minister of Justice),
[38] The fact that the information is collateral for
trial purposes as underlined by the Court of Appeal in Clohosy does not
determine whether it should be disclosed or produced: see R. v. Shearing,
[39]
[40]
[41]
[42] R. v. Mahalingan,
[43] 2010 QCCA 408,
[44] 2010 QCCA 408,
[45] (2004), 15 C.R. (6th) 273.
[46] Emphasis added by this Court. The author relies, as the Court of Appeal in Cliche on the Ontario Court of Appeal's decision in R. v. Hilson (1958), 121 C.C.C. 139 for that proposition.
[47] 2010 QCCA 408,
[48] S.
[49] S.
[50] See the Court's prior ruling, R. v. Bordo,
[51] [1998] 3 S.C.R. 535, par. 22.
[52]
R. v. Ekman
[53] R.
c. Bellefroid,
[54] See the written submissions filed by the prosecution on January 12, 2016 on this issue, par. 35-42, particularly par. 36.
[55] R. v. Pearson
[56] Ibid., at. p. 558 affirmed by
[57] Pierre
Béliveau and Martin Vauclair,
[58]
[59] (2000), 149 C.C.C. (3d) 286 (B.C.C.A.). See also R. v.
Auclair,
[60] (2001), 157 C.C.C. (3d) 255 (B.C.C.A.), leave to appeal refused [2002] 1 S.C.R. ix.
[61] [1999] 1 S.C.R. 565, par. 73-74.
[62] See R. v. Durette,
[63] (1985), 62 B.L.C.R. 208 (B.C.S.C.).
[64] Ibid, at p. 214.
[65] Halsbury's Laws of England - Civil Procedure, vol. 11, London, LexisNexis, 5th ed., 2015, par. 32, at p. 67-68.
[66] Wolf v. The Queen,
[67] (2010), 264 C.C.C. (3d) 134 (Alta. C.A.)
[68] Debra Parkes, "Precedent Unbound? Contemporary Approaches to Precedent in Canada", (2007) 32 Man. L.J. 135, at 153-158; Patrice Band, "Stare Decisis: Are Appellate Courts Bound by their Previous Decisions?", (1998) 20 Adv. Q. 344.
[69] Ibid., Parkes, at p. 158-161; Halsbury's Laws of England - Civil Procedure, vol. 11, London, LexisNexis, 5th ed., 2015, par. 32, at p. 67-68.
[70] Canada
v. Craig,
[71] As
quoted by Barrette-Joncas J. in Longueuil (Ville de) c. Paiva, [2001]
J.Q. no 4282,
[72] Halsbury’s Laws of Canada - Civil Procedure, 2012 Reissue, Markham (Ont), LexisNexis, 2012, (LN/QL), HCV-27 and 30, at pages 272 and 279-280.
[73] See the list of factors considered in Patrice Band, "Stare Decisis: Are Appellate Courts Bound by their Previous Decisions?", (1998) 20 Adv. Q. 344, at p. 351-358.
[74]
[75] See this Court's analysis of Commanda in its prior
disclosure ruling: R. v. Bordo,
[76] 2009 SCC 3,
[77] Ibid;
R. v. Quesnelle,
[78] R.
v. McNeil,
[79] See for example R. v. St-Onge Lamoureux,
[80] See S. Coughlan and L. Peach, Keeping Primary Goals Primary: Why There is No Right to An Adequate Investigation (2012), 16 Can. Crim. L.R. 247, at p. 266-268.
[81] Robert J. Frater, Prosecutorial Misconduct, Aurora (Ont.), Canada Law Book, 2009, at p. 64.
[82] See the comment of Moldaver J. in Henry v. British Columbia
(Attorney General),
[83]
[84] Casey Hill, The Duty to Manage a Criminal Trial, April 2012, National Judicial Institute.
[85] Casey Hill, The Duty to Manage a Criminal Trial, April 2012, National Judicial Institute, at p. 1-3.
[86] Doyon J.A. refers to R. v. Felderhof (2003),180 C.C.C. (3d) 498 (Ont. C.A.).
[87] R.
v. Pires, R. v. Lising,
[88] Ibid., par. 31.
[89] R.
v. Caron,
[90] R.
v. Cunningham,
[91] R.
v. Cunningham,
[92] But see Minotti v. Tremblay,
[93] S.C. 2011, c. 16. These powers are applicable to a
summary conviction court: see s.
[94] P.C. 2011-827
[95] ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission),
[96] [2001]
1 S.C.R. 863,
[97] Ibid., par. 3.
[98] Ibid.
[99] (1992), 72 C.C.C. (3d) 421, at. 440. reversed
[100] Speech before the Empire Club of Canada in Toronto, <http://speeches.empireclub.org/61076/data>.
[101] Hon. Justice Michael Moldaver, "Long Criminal Trials: Masters of a System They Are Meant To Serve", (2006) 32 C.R. (6th) 316, at p. 316.
[102] The LeSage/Code Report, at p. 57.
[103] The LeSage/Code Report, at p. 43.
[104] Ibid., at p. 72.
[105] (1973), 14 C.C.C. (2d) 139 (Ont. C.A.).
[106] Ibid., at p. 141.
[107] The LeSage/Code Report, at p. 74-75.
[108] See the extensive review carried out by St-Pierre J. (as she
then was) in Widdrington c. Wightman,
[109]
[110] [2008] 3 S.C.R. 316, par. 46.
[111]
[112] See s.
[113] See Hryniak v. Mauldin,
[114] Proportionality or cost-benefit analysis is a recognized
threshold of criminal procedure and evidence: see R. v. Rodgerson,
[115] R. v. Mills,
[116] R. v. Khelawon,
[117] 77 F.R.D. 10 (D. Conn. 1977).
[118] See for example S. D. Susman and T. M. Melsheimer, Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases, 32 Rev. Litig. 431, at p. 441-448 (2013); P. E. Longan, The Shot Clock Comes to Trial: Time Limits for Federal Civil Trials, 35 Ariz. L. Rev. 663 (1993); J. E. Rumel, The Hourglass and Due Process: The Propriety of Time Limits on Civil Trials, 26 U.S.F. L. REV. 237, (1992).
[119] United States v. Reaves, 636 F. Supp. 1575 (E.D. Ky. 1986) and United States v. Hildebrand, 928 F. Supp. 841 (1996) are two examples.
[120] [1992] 2 All ER 486.
[121] Ibid., at p. 488.
[122]
[123]
[124] 2014 QCCA 2193, par. 66.
[125] [2004] EWCA Crim 696. See R. v. Gaya, [2008] O.J. No 2066 (Ont. S.C.).
[126] See a more recent application of Jisl in the context of the case management of disclosure issues: R. v. R. & Others, [2015] EWCA Crim 1941.
[127] P. J. Richardson et al. (dir.), Archbold: Criminal Pleading, Evidence and Practice 2016. First Supplement, London, Sweet & Maxwell, 2016, Up-to-date to October 16, 2015, Appendix N, at p. 773.
[128] Ibid., at p. 776.
[129] P. J. Richardson et al. (dir.), Archbold: Criminal Pleading, Evidence and Practice 2016. First Supplement, London, Sweet & Maxwell, 2016, Up-to-date to October 16, 2015, Appendix N, at p. 773, at 779.
[130] P. J. Richardson et al. (dir.), Archbold: Criminal Pleading, Evidence and Practice 2016. First Supplement, London, Sweet & Maxwell, 2016, Up-to-date to October 16, 2015, Appendix N, at p. 773, at p. 780.
[131] Judiciary of England and Wales, January 2015.
[132]
[133] John E. Rumel, “The Hourglass and Due Process: The Propriety of Time Limits on Civil Trials”, 26 U.S.F. L. REV. 237, at p. 257 (1992).
[134]
R. v. Adams,
[135] (2003),180 C.C.C. (3d) 498, par. 57.
[136]
[137] 928 F.Supp. 841 (N.D. Iowa 1996).
[138] Halsbury's Laws of England - Criminal Procedure, vol. 27, London, LexisNexis, 5th ed., 2015, par. 124, at p.203.
[139] Ibid., par. 125, at p.205.
[140] R. v. Darrach,
[141] Hon. Justice Michael Moldaver, "Long Criminal Trials: Masters of a System They Are Meant To Serve", (2006) 32 C.R. (6th) 316, at p. 320.
[142] R. v. Felderhof (2003), 180 C.C.C. (3d) 498, par. 83. See
M. Code, Counsel's Duty of Civility: An Essential Component of Fair Trials and
an Effective Justice System,
[143] M. Code, Law Reform Initiatives Relating to the Mega Trial Phenomenon (2008), 53 C.L.Q. 421, at p. 463-467.
[144] Morin v. National SHU Review Committee (1985), 20 C.C.C. (3d) 123 (F.C.A.), at p. 133.
[145] (2013), 302 C.C.C. (3d) 365 (Qué. C.A.), par. 48.
[146] Ibid., par. 99.
[147] (2013), 302 C.C.C. (3d) 365 (Qué. C.A.), par. 99.
[148] Ibid., par. 98.
[149] Ibid., par. 51.
[150]
2014 SCC 6,
[151] C. Mainville, Report on the CIAJ’s Complex Criminal Trials
Roundtable (2015), 62 C.L.Q. 339 ; R. v. Brisebois,
[152] R. v. Bordo,
[153] See R. v. Auclair,
[154] C. Mainville, Report on the CIAJ’s Complex Criminal Trials Roundtable (2015), 62 C.L.Q. 339 at p. 361; Bruce MacFarlane, Structural Aspects of Terrorist Mega Trials: A Comparative Analysis, in Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Her Majesty the Queen in Right of Canada, represented by the Minister of Public Works and Government Services, 2010, vol. 3, at p. 283-284.
[155] R. v. Candir, (2009), 250 C.C.C. (3d) 139 (Ont. C.A.), par. 60-65.
[156] Hon. Justice Michael Moldaver, "Long Criminal Trials: Masters of a System They Are Meant To Serve", (2006) 32 C.R. (6th) 316, at p. 320.
[157] (2003),180 C.C.C. (3d) 498, par. 84.
[158] Ibid. par. 88.
[159] R. v. Stinchcombe,
[160] D. Stuart, “The Charter is a Vital Living Tree Not a Weed To Be Stunted — Justice Moldaver Has Overstated”, (2006), 40 C.R. (6th) 280, at p. 283.
[161] See the discussion in D. Layton and M. Proulx, Ethics and Criminal Law, Second Edition, Irwin Law, 2015, at p. 133-139; J. Stribopoulos, Has Evertyhing Been Decided? Certainty, The Charter and Criminal Justice, 34 S.C.L.R. (2d) 381, at p. 382-383.
[162] R. v. Chaplin,
[163] R. v. Rodgerson,
[164] M.M. v. United States of America,
[165] M.M. v. United States of America,
[166]
R. v. Cairney,
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans
appel; la consultation
du plumitif s'avère une précaution utile.