IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Watt, 2007 NSSC 20
Date: 20070122
Docket: CR 255406
Registry: Halifax
Between:
Her Majesty the Queen
Respondent
v.
Roderick Watt
Applicant
Revised Decision: The text of the original decision has been corrected according to the erratum issued on January 31st, 2007, to remove the Restriction on Publication.
Judge: The Honourable Justice Felix A. Cacchione
Heard: December 4th, 2006 in Halifax, Nova Scotia
Counsel: Ronald J. Macdonald, Q.C., for the Crown (Respondent)
Josh M. Arnold, for the Defendant (Applicant)
By the Court:
[1] The accused Roderick Watt (the accused) is charged with breaking and entering a dwelling house at Sheet Harbour, Nova Scotia on January 6th, 2005 and committing the indictable offence of assault causing bodily harm by beating. The complainant is Clinton Rafuse (the complainant).
[2] The accused, who was originally to stand his trial commencing on April 18th, 2006 and then again commencing on December 1st, 2006, brings this application to stay the proceedings on the basis that his right to life, liberty and security of the person as guaranteed by s.7 of Canadian Charter of Rights and Freedoms has been violated by the Crown’s original non-disclosure and subsequent late disclosure of materials contained in the police file together with materials in the Great West Life disability benefits file which the Crown undertook on April 18th, 2006 to provide to the accused.
[3] The accused argues that the Crown’s late disclosure of material, which it undertook to provide to the defence seven months ago, breached an undertaking given by the Crown at that time. A review of the history of this case is necessary in order to put into perspective this application for the extraordinary remedy of staying the proceedings.
[4] The accused was charged on January 22nd, 2005 with two offences contrary to s. 348(1)(a) and 348(1(b) of the Criminal Code.
[5] The accused attended court on January 22nd, 2005 and was arraigned on these two charges and the matter was adjourned to March 8th, 2005 for election and/or plea and to allow the accused to consult with counsel. On March 8th, the matter was again adjourned to March 29th for election and/or plea. On March 29th the accused elected to be tried by a Supreme Court Judge sitting with a jury and his preliminary hearing was scheduled. At the conclusion of the preliminary hearing held on September 13th, 2005 the accused was committed to stand trial on one charge relating to the break and enter into a dwelling house and committing the indictable offence of assault causing bodily harm.
[6] The accused was ordered to attend at the Supreme Court on September 29th, 2005 for the setting of a trial date. On that date the trial was scheduled for the period of April 18th, 2006 to April 25th, 2006.
[7] On April 10th, 2006, eight days prior to the scheduled commencement of the trial, the defence received unexpected disclosure regarding this matter from Mr. Gorman, the per diem Crown assigned to the file. Included in this late disclosure was an RCMP continuation report with entries relating to events which occurred on November 25th, 2005. One of the entries dated November 25th, 2005 was in relation to the investigating officer, Constable Deveau, completing a request from the Great West Life Insurance Company in relation to a disability claim made by the complainant as a result of the alleged offence. A further entry dated December 5th, 2005 indicated that a memo to Great West Life had been completed and that the alleged victim had been notified that this memo was available for pick up.
[8] As a result of this late disclosure, the defence wrote to the Crown on April 10th, 2006 and asked for a copy of the Great West Life request as well as a copy of the memo written to Great West Life and any and all other information relating to this Great West Life request.
[9] On April 11th, 2006 the defence received correspondence from the Crown confirming that it would be pursuing some of this disclosure from the RCMP right away.
[10] On April 13th, 2006 the defence received correspondence from the Crown which enclosed further disclosure consisting of an RCMP memo and page 2 of a two-page letter from Great West Life to the complainant Mr. Rafuse. The Crown advised the defence that it would be pursuing the missing disclosure with the RCMP, however the investigating officer was out of the office until April 14th and could not be made available until that time to explain where page 1 of the two-page letter might be located.
[11] As a result of this late disclosure and the discovered non-disclosure a telephone conference was arranged with the Crown and Justice Goodfellow who was to preside at the trial commencing on April 18th, 2006. A series of telephone conferences involving the Crown, the defence and Justice Goodfellow took place.
[12] The defence advised the Court by way of written correspondence and orally during the telephone conferences that the defence believed the disclosure of these documents was important because (a) the complainant had requested disability insurance payments as a result of the alleged incident which would provide him with a motive to fabricate; (b) the complainant had provided a statement to the insurance company or others regarding the incident which the defence did not have and; (c) the complainant indicated that the injuries sustained from the January 6th, 2005 incident were not serious and did not interfere with his original disability claim as referenced in page 2 of the Great West Life letter disclosed on April 13th, 2006.
[13] During the series of weekend telephone conferences, the Crown agreed that the missing disclosure could be significant to the accused’s defence. It also became apparent that the Crown would not be able to provide the missing disclosure in time for trial. The Crown advised it would make efforts to provide the requested disclosure fairly quickly in order to avoid any further delays.
[14] On April 18th, 2006 the trial was adjourned to December 1st, 4th, 5th, 6th, 7th and 8th, 2006. Justice Goodfellow asked counsel if there was anything else they needed from him with respect to disclosure. The Crown’s response was as follows:
MR. GORMAN: I can advise the Court, My Lord, that the issue that was before the Court related to Great West Life and some applications for disability insurance. With the assistance of Cst. Deveau, the investigating officer, there has been contact made with Mr. Rafuse, one of the alleged victims, and he has consented to have the information released from Great West Life, so I think that will obviate the necessity of a third party records application. So it should resolve itself fairly – fairly...
[15] Following the adjournment of the trial the defence wrote to Mr. Gorman, the per diem Crown, on May 1st, May 24th and to Mr. MacDonald of the Public Prosecution Service on July 19th, 2006 requesting the disclosure which has been referred to in Court on April 18th. The Crown replied on May 4th, August 16th and October 25th, 2006.
[16] In his correspondence dated May 4th, 2006, Mr. Gorman wrote:
The file has been returned to the Antigonish Crown office and I am awaiting further instruction in terms of what is to take place. In that regard I have given instructions to office staff to have a Consent to Release of Information from Great West Life forwarded to Cst. Deveau and for Clinton Rafuse to sign. I will make further inquiries of the Antigonish office to determine the status of the matter.
[17] In correspondence dated August 16th and October 25th, 2006 Mr. MacDonald referred to having been in touch with the RCMP on a few occasions regarding the requested disclosure but that he had not received any information from them as of the date of those letters.
[18] On November 9th, 2006 the defence filed a brief of law requesting that the charge against the accused be stayed in accordance with s.24(1) of the Canadian Charter of Rights and Freedoms. The defence referred to the passage of seven months from the time the Crown undertook to provide the requested information to the defence and the fact that the requested disclosure had still not been provided.
[19] During a pretrial conference on November 14th, 2006 it was agreed that the trial scheduled to start on December 1st would have to be adjourned because disclosure of the Great West Life disability claim file had yet to be made. It was agreed that some of the originally scheduled trial dates would be used for the hearing of this application to stay the proceedings. The defence agreed to file a formal Notice of Application setting out the basis of its application. This notice dated November 23rd, 2006 was filed on November 24th, 2006.
[20] On November 23rd, 2006, seven days before the second scheduled commencement of the accused’s trial the Great West Life file, together with other disclosure items, was finally disclosed to the defence.
Position of the Parties:
[21] The applicant’s position is that the only appropriate remedy for the late disclosure is a stay of proceedings. It is argued an adjournment would not be appropriate given that the trial has already been adjourned twice as a result of the Crown’s failure to disclose information contained in the police file in a timely fashion. As a result of this initial failure to disclose, the original trial dates of April 18th - 25th, 2006 were lost and new trial dates were fixed. Seven months passed between the first and second trial dates and the Crown had still not complied with its disclosure obligation. The second date set for this trial was, of necessity, lost because the information which the Crown agreed to provide to the defence prior to the first trial date had still not been received.
[22] The defence finally received this information on November 23rd, 2006, some seven days prior to the second scheduled start of the trial. This late disclosure was not received in sufficient time to allow the defence to review the materials disclosed and to attempt to decipher the handwritten notes of the complainant’s family physician. The defence attempted to contact this physician on three occasions following the receipt of his notes. When contact was finally made, the physician indicated that his file was in his satellite office in Sheet Harbour and that even he would have trouble reading his own notes. The physician also provided a cost for having the notes transcribed. No time frame was given for the transcription of the physician’s notes.
[23] The defence argues that it relied on the Crown’s undertaking to provide the third party records and had it not been for this undertaking the defence would have made its own application for the disclosure of the third party records.
[24] It is submitted that the RCMP had knowledge and possession of the initial Great West Life disclosure on November 25th, 2005 but no reference to this information was disclosed to the accused until April 10th, 2006 approximately one week before the scheduled commencement of his trial. A further seven months elapsed without the disclosure of the requested materials despite the Crown’s undertaking to obtain these documents. The Applicant’s submission is that the failure of the Crown to meet its disclosure obligations for such a period of time is evidence of an abuse of process.
[25] The Applicant refers to the expense and anxiety associated with having to prepare for trial twice. The Applicant also points to the passage of time and its affect on the memory of witnesses.
[26] At the hearing of this application on December 4th, 2006 the Applicant advised the Court that on November 23rd, the day the Great West Life file was disclosed, he wrote to the Crown asking for any notes of the investigation officer for the period from April to November 2006. In its reply dated November 29th, 2006, the Crown indicated that it was still awaiting the RCMP continuation reports. As of December 4th, 2006 these reports had still not been received by the defence.
[27] The Applicant, in light of the non-disclosure and late disclosure, questions whether the Crown and police took their disclosure obligations seriously.
[28] The Applicant submits there is a need for follow up information pertaining to this file as a result of the disclosure of the Great West Life file made on November 23rd, 2006. The Applicant views the alleged victim’s credibility as one of the main issues at trial. The position advanced is that the contents of the Great West Life file, and in particular the notes made by various medical personnel about what the complainant told them concerning his injuries, is central to impugning the complainant’s credibility. The Applicant challenges the respondent Crown’s submission that the issue of the complainant’s injury is a minor one.
[29] The Applicant points out that information concerning the complainant’s application for disability benefits from Great West Life as a result of injuries received during the alleged offence was in the police file as early as November 25th, 2005 and yet was not disclosed until one week before the trial was scheduled to begin in April 2006. The Applicant indicates that both the judge and Crown counsel who were involved in this matter in April agreed the Great West Life file had potential relevance and therefore ought to be disclosed to the defence. In this regard the Applicant refers to the Crown’s submission to Justice Goodfellow on April 18th, 2006 that the investigation officer had been in contact with Mr. Rafuse, the complainant and that Mr. Rafuse had consented to the release of the Great West Life file, thereby obviating the necessity of a third party records application. The Applicant submits that at no time during the seven month interval between April and November 2006, despite repeated requests by the Applicant, did the Respondent advise the Applicant that it could not obtain the required information or that the Applicant ought to pursue a third party records application. The Applicant also highlights that it was only after he had submitted his brief dated November 9th, 2006 concerning a stay of proceedings application that the RCMP met with Mr. Rafuse in order to have him sign the consent to release of information form. This, it is stressed, was seven months after the Crown advised the Court and counsel that the complainant had consented to the release of the information.
[30] It is noteworthy that once the consent to the release of information from Great West Life was signed by the complainant it took only two weeks for this material to be disclosed to the accused.
[31] The Applicant argues that the Respondent gave an undertaking on April 18th, 2006 to get this information and the Respondent breached this undertaking by not providing the information until late November, one week prior to the start of the trial on December 1st, 2006. The Applicant also submits that no court order requiring the disclosure was obtained because the Crown gave an undertaking in court to get the required material and that reliance on this undertaking by the Applicant further unduly delayed the proceedings and increased the prejudice faced by the Applicant.
[32] The Respondent Crown submits that what it told the court on April 18th, 2006 should not be characterized as an undertaking but rather as a “commitment” to assist the defence in obtaining the Great West Life materials it required. The Respondent cites the Nova Scotia Barristers’ Society Legal Ethics and Professional Conduct Handbook, and in particular commentary 13.6 of Rule 13 which states in part:
A lawyer has a duty to
(a) not give or request an undertaking that cannot be fulfilled;
[33] The Respondent argues the Great West Life materials were not in the possession of the Crown nor in the control of the Crown and therefore an undertaking to deliver the documents could not have been given since it was an undertaking that could not be fulfilled. The Respondent therefore suggests that the Applicant’s submissions relating to a breach of undertaking are not relevant to this application. The Respondent also submits that the Applicant had, at any time between April 18th and November 2006, the option of going to court and making a third party records application. The Respondent’s position is that because the Applicant did not bring such an application, the Applicant suffered no prejudice.
[34] The Respondent states this is not a failure to disclose situation because the Crown did not have the requested documents in its possession or control. The Respondent suggests all the Crown did on April 18th, 2006 was to indicate that it would facilitate the production of the documents from the third party record holder.
[35] The Respondent also questions whether these documents were necessarily relevant to the issues arising at trial.
[36] In its oral argument the Crown Respondent acknowledged that not enough was done between April and November 2006 to ensure that its “commitment” made on April 18th, 2006 was fulfilled. The Respondent referred to what occurred between April and November 2006 as “the ball was dropped” and concedes that “not enough was done”.
[37] The Respondent argues that there is no evidence of bad faith in the late disclosure and questions the relevance of the complainant’s statements to various medical professionals to the issues at trial.
[38] The Respondent submits that nothing the Crown did prejudiced the Applicant’s ability to bring a third party records application. The Respondent did acknowledge that it gave what it termed as a “commitment” to the Applicant but did not follow through with that commitment and urges this Court not to view the commitment as an undertaking. The Respondent offers the following three reasons why, despite numerous requests, the passage of seven months and the Crown’s “commitment” to obtain the documents, this was not done; (a) Constable Deveau’s transfer from the Sheet Harbour detachment, (b) the Antigonish Crown’s office is a busy two-person office and (c) serious family health issues affecting one of the two Crown Attorneys in that office.
[39] The Respondent’s final submission related to the lack of diligence by the defence in not bringing the matter back to court when it was clear the Crown would not be in a position to fulfill its commitment given on April 18th, 2006. As previously stated, the Respondent’s position is that it was always open to the Applicant to bring a third party records application when it was clear these records were not forthcoming.
Analysis
[40] Reference to “the Crown” in these reasons for judgment includes the actions of the police and the prosecution as they are indivisible when disclosure obligations are at issue.
[41] The issues raised in this application can be made into the following questions. (1) Did the RCMP’s knowledge and possession of information pertaining to the complainant’s application for disability benefits arising from the alleged offence require that this information be disclosed to the accused? (2) Was there a duty or obligation on the RCMP to protect the complainant’s privacy interests? (3) Was there a duty on the RCMP to disclose continuation reports in its file pertaining to this case? (4) Has the accused been prejudiced by the non-disclosure and late disclosure? (5) Was the Crown statement made to Goodfellow, J. that the complainant had consented to the release of information from Great West Life thus obviating the need for a third party records application an undertaking or something less?
[42] The police assisted the complainant in making his request for disability benefits arising from the alleged incident and noted that assistance in the continuation reports prepared and contained in the file pertaining to the accused. There existed, therefore an obligation to disclose this because no issue of privilege attached to this information and the information was clearly relevant.
[43] The question of whether there was a duty to protect the complainant’s privacy interest only arose once there was a request made for documents over which a privacy interest existed. In this case such a request came on the eve of the first trial date when the Crown first disclosed, some five months after the Crown had in its knowledge and possession, information contained in police reports which might lead to a privacy interest being triggered. As it turned out, on April 18th, 2006 the Crown advised the Court that the complainant consented to the release of the information. It then took seven months for the disclosure to occur and then again disclosure was made only one week before the start of the second date set.
[44] During these seven months there were further requests made for the disclosure. The evidence presented, in the form of the Crown’s submission to the Court on April 18th, 2006 and its letters to the defence dated August 16th and October 25th, 2006, establishes that the RCMP were aware of the requests yet did nothing. These letters were communications from the prosecuting attorney to the investigating officer handling the accused’s case, concerning a “commitment” made by the Crown to the defence and the Court to obtain the necessary consent for disclosure of relevant documents. Based on these communications a logical inference can be drawn that further continuation reports were prepared. These continuation reports or the entirety of these reports remain to be disclosed to the defence.
[45] At the very least there was a duty on the Crown to advise the accused that the complainant had made an application for disability benefits and that the RCMP had assisted with this request. There was also a duty on the Crown to provide to the defence any further police reports made in relation to this prosecution. In the case at bar this was not done in a timely fashion.
[46] The general principle regarding disclosure was set out in the seminal case of R. v. Stinchcombe (1981), 68 C.C.C. (3d) 1 (S.C.C.). In that case Sopinka J. quoted the following words of McEachern C.J.B.C. in R. v. C(M.H.) (1989), 46 C.C.C. (3d) 142 at page 155 as being a correct statement of the law:
...there is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it.
This statement was accepted by McLachlin J. In R. v. C(M.H.) (1991), 63 C.C.C. (3d) 385 (S.C.C.) at page 394 where she stated:
This court has previously stated that the Crown is under a duty at common law to disclosure to the defence all material evidence whether favourable to the accused or not.
[47] Stinchcombe also made it clear that the obligation to disclose is a continuing one and disclosure must be completed when additional information is received. While it is true the Crown’s duty to disclose does not extend to evidence that is beyond its control, clearly irrelevant, or privileged the obligation to disclose all relevant and non privileged evidence requires that the Crown exercise the utmost good faith in determining which information must be disclosed and in providing ongoing disclosure to the defence: Chaplin and Chaplin v. The Queen (1995), 96 C.C.C. (3d) 225 (S.C.C.).
[48] For the following reasons it cannot be said that these requirements of good faith and the provision of ongoing disclosure was met in the case at bar. The Crown, in particular the RCMP, knew as early as November 25th, 2005 of the complainant’s application for disability benefits arising from the alleged offence. An RCMP report, known as a continuation report was generated on November 25th, 2005 and contained information concerning the complainant’s application for disability benefits and the RCMP’s assistance in completing the form for the complainant. This report was not disclosed to the defence until April 10th, 2006, eight days before the scheduled start of the accused’s trial. As a result of this late disclosure and the accepted relevance of the information contained in the Great West Life file regarding the alleged offence and its connection to the cause of the claimed disability, the trial was adjourned. No legitimate reason was provided for the five month delay in disclosing this relevant information to the accused.
[49] On April 18th, 2006 at the adjournment of the trial to December 1st, 2006 the Crown advised the Court that the complainant had been contacted by the RCMP with respect to the disclosure of third party records held by Great West Life and had consented to the disclosure of these records, thereby obviating the need for a third party records application.
[50] The defence requests of May 1st, May 24th and July 19th, 2006 for this disclosure were responded to by the Crown. On May 4th, 2006 the Crown advised the defence that instructions had been given to Crown staff to have a consent of release of information forwarded to Constable Deveau for the complainant’s signature. This signature, however, was not obtained until sometime in November 2006 and the records released by this consent were not disclosed until November 23rd, 2006. The only reasons provided for this further delay were: (a) the transfer of Constable Deveau to another detachment; (b) the Crown office being a busy one; and (c) a serious family health issue affecting one of the two Crown Attorneys in that office. The evidence presented on this application does not establish that these three reasons for the delay in obtaining the disclosure were ever communicated to the defence.
[51] The Crown throughout its communications with the defence regarding this disclosure issue never indicated anything other than that it was pursing the disclosure of the acknowledged relevant materials through the RCMP. The Crown at no time communicated to the defence any difficulty it was having in obtaining the materials, nor did it indicate in any way that the defence might want to pursue another course for obtaining these records.
[52] The defence, to its detriment, relied upon the Crown’s continued expressed intent to obtain the records. These records were not disclosed in a timely fashion thereby leading to the necessity of a further adjournment of the trial. The defence reliance on the Crown’s stated intention over a period of months was then used in argument against the defence by the Respondent.
[53] The Respondent submitted both in oral and written argument that the defence was free to bring an O’Connor application at any time but did not do so and therefore did not suffer any prejudice. While it is true that the defence could have brought a third party records application, it is also true that the Crown never advised the defence of the reasons for the delay. The Crown Attorneys throughout the period from April to November, 2006 held out to the defence that the Crown was working on providing the disclosure it undertook to provide on April 18th, 2006.
[54] The Crown’s lack of diligence with respect to its disclosure obligations is further manifested by the non-disclosure as late as December 4th, 2006 of RCMP continuation reports for the period between April and November 2006 which had been requested by the defence on November 23rd, 2006, the date when the Great West Life materials were finally disclosed. No reason was provided for this further non-disclosure.
[55] The Respondent’s argument that the Crown’s stated intent of April 18th, 2006 to assist the defence in obtaining the Great West Life file was a “commitment” and not an undertaking is not convincing. While it is true the Great West Life file was not in the possession or control of the Crown and the delivery of that file was dependant on the complainant’s signing the release and the release of the file by Great West Life, the fact remains that the Crown after consultation with the police and the complainant notified the Court, on the record, that the complainant had been contacted and was consenting to the release of information. All that remained to be done was to have the release executed and sent to Great West Life. This, however, was not done in a timely fashion as evidenced by the fact Great West Life file was only disclosed on November 23rd, 2006. While it can be argued that obtaining a file not in the possession and control of the Crown was an undertaking which could not be fulfilled, the reality is that the Crown, after consultation with the RCMP and the complainant, took steps to fulfil its “commitment” made to the defence by preparing a consent to release of information from Great West Life and forwarding it to the RCMP for the complainant’s signature. The defence was advised of this through correspondence from the Crown dated May 4th, 2006. No legitimate reason was provided for the further six months that it took to obtain the Great West Life and disclose it to the defence.
[56] The Crown advised the Court on April 18th, 2006 that the complainant’s consent to the release of private information had been obtained thereby obviating the need for a third party records application. Through its words and actions in the period from April to November 2006 the Crown gave the clear impression that it was attempting to fulfil its “commitment” made to the defence and the Court.
[57] Whether the Crown’s words and actions are viewed as a commitment or an undertaking is of little consequence. The fact remains that the Crown, and in particular the RCMP, did little to fulfil an assurance given to the defence and the Court that materials acknowledged as being relevant to the defence would be disclosed in a timely fashion so as to allow the accused’s trial to proceed on the adjourned date. The Crown breached the agreement it made with the defence by not making the disclosure in a timely fashion. The result of this breach was a further adjournment of the accused’s trial and further prejudice to the accused.
[58] The accused has suffered prejudice in a number of ways by the late and non-disclosure of certain materials. The defence has had to prepare twice for a trial which has yet to commence. This has led to an extra expense for the defence. As well the accused has been under release conditions since January 2005. The passage of time is well known to affect not only a witness’ memory but also the location of potential witnesses. Awaiting trial has been recognized as being stressful to an accused person. In the present case the accused has been awaiting his trial since September 2005 when the committal to trial was made by the Provincial Court. Because of the inaction of the Crown the trial, of necessity, has been adjourned on two occasions. A new trial would not be heard until September 2008 some three years after the accused’s committal to stand trial and nearly four years after the alleged commission of the offence. Such an inordinate delay, attributable to the Crown’s inaction, violates the fundamental principles of justice underlying the community’s sense of fair play and decency. A delay of this length, in the case of an uncomplicated and straightforward prosecution, offends the public interest in a fair and just trial process and in the proper administration of justice. A defendant should not have to wait in excess of three years for a trial where the case is not unusual or complicated.
[59] A defendant should be entitled to rely on assurances, commitments or undertakings given by the Crown. In the present case the accused relied on the Crown to provide him with disclosure materials which the Crown agreed were relevant to his defence. The Crown did not comply with its commitment until the very last minute. This delay caused a further adjournment of the accused’s trial. No justifiable reason was given for this late disclosure.
[60] The Crown by its inaction in the face of repeated defence requests for the disclosure materials demonstrated a complete disregard for the rights of the accused. This disregard of the Crown’s disclosure obligations is not only troublesome but also abusive. In my opinion it would be prejudicial to the public interests for the Crown to continue its proceedings against Mr. Watt. To do so would undermine the public’s confidence in the criminal justice system because it would be perceived that the agreements and undertakings of the Crown are not to be relied upon. This would be intolerable and would bring the administration of justice into disrepute. As stated by Hall J.C.C., (as he was then) in Aucoin v. Nova Scotia (Attorney General) (1989), 94 N.S.R. (2d) 205 (Co.C.T.) at page 210:
...The public expects the highest standard of fair play and fair treatment from the Crown as represented by those officials who act in the name of the state...
[61] In R. v. Bursey (1991), 109 N.S.R. (2d) 402 (Co.C.T.) an accused had been charged with fraud. A police officer promised to drop the charge of fraud if the accused testified against his friends. The accused did testify but later was served with a summons respecting the charge of fraud. The accused brought an application for a stay of proceedings arguing that it was an abuse of process for the Crown to proceed with charges against him. Hall J.C.C. (as he was then) acknowledged the police as being subject to Crown responsibilities and stated at p.405:
...when an undertaking is given by a person engaged in the prosecutorial process, including a police officer who has the ostensible authority to give the undertaking, the recipient of the undertaking should be entitled to rely on it. For the Crown to proceed contrary to the undertaking, in my opinion, constitutes oppressive behaviour by the Crown. In the words quoted and adopted by Chief Justice Dickson it would “violate those fundamental principles of justice which underlie the community’s sense of fair play and decency...
In the case at bar the defence was given an assurance by the Crown that the RCMP would obtain the complainant’s consent to release of information. The accused was entitled to rely on the assurance given. The outcome of this application could have been different if at some stage the Crown had advised the defence of difficulties it was having in complying with the assurances it had given and the defence then did nothing on its own to pursue a third party records application. This was not done. For the Crown to now argue that the accused could have brought his own third party records application and as a result because he did not do so he did not suffer any prejudice is abusive.
[62] The abuse in the present case also lies in the Crown reneging on an agreement made and presented to the Court. To renege on such an agreement constitutes an abuse of process of the Court. The Crown is expected to honour the agreements it has made in relation to prosecutions. As was stated by Graburn Co. Ct. J. in R. v. Betesh (1975) 30 C.C.C. (2d) 233 (Ont.CoC.T.) at page 250-51:
...the Crown is expected to honour the agreements it has made in relation to prosecutions.
[63] There is ample authority for the proposition that the Crown’s failure to honour an agreement with the accused can amount to an abuse of process: Regina v. Crnec, Bradley and Shelly (1980), 55 C.C.C. (2d) 1 (Ont. H.C.); R. v. Goodwin (1981), 43 N.S.R. (2d) 106 (N.S.C.A.); R. v. Mandate Erector and Welding Ltd., [1999] N.B.J. No. 519 (N.B.C.A.)
[64] The Crown’s failure to make timely disclosure has impaired the accused’s right to make full answer and defence and is in my opinion evidence of an abuse of process.
[65] In R. v. O’Connor [1995], 4 S.C.R. 411 (S.C.C.) Justice L’Heureux-Dube stated at paragraph 63:
...that conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into question the integrity of the system is also an affront of constitutional magnitude to the rights of the individual accused. It would violate the principles of fundamental justice to be deprived of one’s liberty under circumstances which amount to an abuse of process, and in my view, the individual who is the subject of such treatment is entitled to present arguments under the Charter and to request a just and appropriate remedy from a court of competent jurisdiction.
[66] In O’Connor the Court also held that a demonstration of mala fides on the part of the Crown is not a necessary precondition to a finding that a stay of prosecution is warranted.
[67] I am not satisfied that an adjournment of the trial would be a proper remedy for an infringement of the accused’s s. 7 Charter rights. This case has already been adjourned twice as a result of the delay by the Crown in providing disclosure to the accused. A new trial would not be heard until sometime in September 2008 nearly three years after the accused’s committal to stand trial and almost four years after the offence was alleged to have been committed. I am satisfied that the accused’s right to life, liberty and security of the person as guaranteed by s. 7 of the Charter has been infringed in the present case. The Crown’s failure to make timely disclosure has impaired the accused’s right to make full answer and defence and is in my opinion evidence of an abuse of process.
[68] As stated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Tobiass (1997), 118 C.C.C. (3d) 443 (S.C.C.) at paragraph 90:
If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwise damaging to the integrity of the judicial system, two criteria must be satisfied before a stay will be appropriate. They are that:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;
and
(2) no other remedy is reasonably capable of removing that prejudice.
The prejudice referred to in this quotation applies as well to prejudice to the integrity of the judicial system.
[69] In the present case the conduct of the Crown has damaged the integrity of the judicial system. The prejudice caused to the accused would be perpetuated by allowing the matter to proceed. The accused’s trial has already been adjourned twice because of the Crown’s conduct. To allow this matter to proceed would subject the accused to further vexatious and vicissitudes of a criminal accusation. It would cause further stigmatization of the accused, further stress and anxiety and further expense to him. The uncertainty as to the outcome and sanction is another prejudice that would be caused to the accused by allowing this matter to proceed.
[70] The integrity of the judicial system would also be prejudiced in that the community would be left with the impression that the Crown could disregard any commitment or undertaking given to the accused and the Court without concern for any possible repercussions.
[71] I am satisfied that this case is one of those “clearest of cases” which calls for a stay of proceedings.
[72] Accordingly a stay of proceedings is granted.
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Cacchione, J.