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PROCEDURE - Crown’s duties - Disclosure - Mistrial

Wednesday, July 15, 2020 @ 6:13 AM  

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Appeal by the accused from conviction for first degree murder. The deceased was shot in the appellant’s apartment. Mid-trial the Crown disclosed to the defence that a private investigator hired by the appellant’s defence team to assist with his defence assisted the police by locating and putting them into contact with two witnesses. The witnesses previously indicated to police that they had no significant information relating to the victim’s death. After being interviewed by the private investigator, it became apparent they had material information relating to the investigation. The private investigator encouraged the police to reinterview the two witnesses and took steps to assist them in locating and gaining the confidence of the witnesses. Police then took steps to keep the private investigator’s name confidential. Defence immediately moved for a mistrial. The trial judge found that there was a breach of the duty to disclose but denied the mistrial finding that a short adjournment and further cross-examination of witnesses would remedy the breach of s. 7 of the Canadian Charter of Rights and Freedoms (Charter). The appellant argued the trial judge erred in not declaring a mistrial.

HELD: Appeal allowed. New trial ordered. The trial judge erred in failing to declare a mistrial. The trial judge erred by gauging the impact of the undisclosed evidence on the appellant’s ability to respond to the merits of the Crown’s case alone, rather than on the ability to bring a process-oriented response as well. The right to make full answer and defence included not only the ability to challenge the Crown’s case on the merits but also the ability to advance reasonable Charter or other process-oriented responses to the charges. The trial judge’s assessment of the materiality of the undisclosed information, the impact of its late disclosure and the possible abuse of process concerns should have focused on the appellant’s reasonable opportunities to investigate and advance a Charter or other process-oriented response. The trial judge also erroneously asked whether the appellant would be successful in an abuse of process claim when that was not an issue before him. The trial judge’s finding that the undisclosed information revealed the police were mere passive recipients of information was not supported on the record or the trial judge’s own findings of fact. The police did not passively receive information but successfully encouraged the investigator to help them in their investigations and ensured their collaboration remained secret. It would be entirely possible for a judge to find the police conduct revealed by the undisclosed information could amount to an abuse of process. The novelty and complexity of the situation which amounted to a potential abuse of process arising in the middle of a jury trial demanded a remedy more drastic than an adjournment. To be responsive to the circumstances of the breach of the appellant’s disclosure rights a mistrial was required.

R. v. Sandeson, [2020] N.S.J. No. 216, Nova Scotia Court of Appeal, D.P.S. Farrar, J.W.S. Saunders and J.E. Scanlan JJ.A., June 17, 2020. Digest No. TLD-July132020005