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Criminal Law - Constitutional issues - Canadian Charter of Rights and Freedoms - Legal rights - Procedural rights - Fair hearing - Remedies for denial of rights - Specific remedies - New trial

Thursday, January 19, 2017 @ 7:00 PM  

Appeal by Chu from conviction for conspiring with others to traffic in cocaine, and trafficking in cocaine. In the two days immediately preceding the trial, Crown counsel disclosed the existence of approximately 1,900 documents. Crown counsel had just discovered that a Proceeds of Crime Unit was conducting an investigation into the activities of Chu and his associates. Crown counsel immediately provided some of the documents to defence counsel. The trial judge granted an adjournment for two days after receiving the testimony of two out-of-town witnesses. After court adjourned, Crown counsel invited defence counsel to the Crown offices where she was required to show Crown counsel what she wished to review. Defence counsel objected, and the court reconvened. The trial judge indicated that he would adjourn to consider the matter further, strongly indicating that counsel should be prepared to recommence hearing witnesses the following day. Defence counsel’s application to adjourn the trial outright was dismissed. The trial judge stated that he would adjourn at noon on Friday to permit defence counsel to continue to review the documents Friday afternoon and during the weekend. Chu submitted that the trial judge’s failure to grant an adjournment denied him a fair trial, contrary to s. 7 of the Charter, and the ability to make full answer and defence, contrary to s. 11(d) of the Charter. The Crown submitted that Chu failed to establish that the material was relevant and that Chu could not demonstrate that late and non-disclosure affected his right to make full answer and defence.

HELD: Appeal allowed. The conviction was set aside, and a new trial was ordered. Chu’s rights under s. 7 of the Charter were infringed. The trial judge’s decision to refuse an adjournment or provide another adequate remedy amounted to an abuse of process. The trial judge erred in his statement of the obligation on the Crown when defence counsel asked for a review of the Crown’s refusal to disclose known documents. The trial judge erred by placing a burden on defence counsel to demonstrate the relevance of existing documents that the Crown refused to disclose. The trial judge further erred by classifying the Index as a “Laporte” inventory and relying upon it alone to determine whether the Crown had met the burden on it to show the documents were clearly irrelevant. If the judge had not made these errors, he would have found that the Crown’s late disclosure (and non-disclosure) amounted to a breach of s. 7 for which a remedy had to be granted. A new trial was the only available remedy. It was still not possible for the Court to determine which of the documents listed in the Index had already been disclosed and no further description of the documents had been provided. Having regard to the burden on the Crown when it refused to disclose documents that were known to exist, it was not possible to answer that question, which meant a new trial was necessary.