Form 49

Alberta Rules of
Court

Court File 130163405Q101

Number

Court Court of Queen's Bench of Alberta

Judicial Center Lethbridge

Defendant(s) David R. Stephan /Collet Dawn

Stephan

Plaintiffs(s) Her Majesty The Queen

Document Arguments Brief

ADDRESS FOR BOX 600

SERVICE AND HYTHE, AB
CONTACT TOH 2C0
INFORMATION
OF
PARTY FILING
THIS
DOCUMENT

Arguments Brief to be heard January 18th 2019

 TABLE OF CONTENTS

Section 1 Introduction 1
Section 2 Elements 3

Prosecutorial Misconduct 3
Repeated outbursts 3
Witness tampering 3
Gross negligence of Crown duties 3
Misrepresentations to the Court 4
Crown Duties Regarding Perjury 6
Crown Prosecutors either are aware or should be aware of crimes 6
Unlawful Tactics 6

Collusion between Crown Prosecutors and Witnesses 7

Prosecutorial Bluffing 14

Judicial Bias and Misconduct 14

The Justice heavily biased his "findings of facts" 14

Public shaming was utilized 15

Censoring of defense witnesses 15

The Justice maintained a double standard during the trial 16

Justice Jerke misused his gatekeeper role 16

Unlawful or inaccurate evidence being allowed 16

Refusal to adhere to case law 19

Crimes involved in the prosecution of the Accused 20

Perjury 20

Giving contradictory evidence 20

Fabricating Evidence 21

Obstructing Justice 21

Public Mischief 21

Causing death by criminal negligence 21

 Conspiracy 23
Spoliation of evidence 23

RCMP Bias and Misconduct 24

Numerous biases held by the RCMP 24
Biases held by former RCMP officer 24

RCMP engineered the case 24

Statements were not taken of critical care providers 25

Breach of litigation privilege 25

Hardship 25

The prior case costs 25

Hardship on the family 25

Persecution affecting family finances 25

Complexity 26

Complexity 26

Medical experts required for the next trial 26

Falsification of autopsy 26

Perjury of crown witnesses 27

Medical investigation needed 27

A partial witness list 28

Specialty lawyers 29

Imbalance of Power 30

State agencies involved in wrongdoing 30

Prima facie evidence exists of gross negligence 30

The State pursued litigation, in spite of known issues at law 30

Charter Violations 30

Section 7 30

Section 11(d) 30

Section 12 30

Section 15(1) 31

Section 24(1) 31
 Section 24(2) 31

Section 3 Case Law 32

R V Curragh 32

Vancouver (City) v. Ward 33

Lizotte v. Aviva Insurance Company of Canada 34

R. v. Stinchcom be 36

Nelles v. Ontario 40

R. v. McNeil 41

R. v. O'Connor 41

Boucher v. The Queen 42

St. Louis v The Queen 43

R. v. Ouellette 43

Quebec (Attorney General) v. Cronier 43

Carr v Ottawa Police Services Board 44

Elmardy v Toronto Police Services Board 44

Ogiamien v. Ontario 44

Henry v. British Columbia 44

Canada (Prime Minister) v. Khadr 45

Section 4 Summation 45
 1

Section 1: Introduction
Information presented in this document is held in four sections.

1. The first section is the introduction

2. The second section is a brief overview of the elements of the case with listed
references to supporting evidence. As a cautionary note: This is a brief overview and
in the interest of time, does not contain all or even a majority of the instances of the
listed elements that occurred during the previous trial, or the events leading up to it.

3. The third section is the application of these elements to the current case law,
primarily dealing with the uniqueness of the case and how elements of this case are
seen spread over numerous Supreme Court rulings but never found in their entirety
within any single case ruled on at that level.

4. The fourth section is a brief summation of the arguments.

Due to a lack of time we were not able to include; all of the instances of the events, Charter
breaches, criminal code violations and other misconduct that took place during the last trial
or the events leading up to it, or all the applicable case law. To do so, I believe this
document would be thousands of pages in length. Rather we have listed a small sampling of
the most pertinent and easy to understand examples.

This is a unique case and as such there is no unified case law that we could find that
adequately covers the numerous elements at hand.

The general purpose of the elements and arguments herein are to show:

1. The complexities faced by the Accused in the prior and future trial.

2. The unreasonable psychological, financial and social hardships that were faced as a
result of the prior trial and the increased burden that the next trial will place on the
Accused and their family.

3. The need for assistance well beyond what is made available within the current
remedies.

4. The crimes and misconduct of representatives of the state that have led to this point
in these proceedings, and the likely increase in these crimes and misconduct that will
plague the Accused during future proceedings.

5. That the potential increase in the cost and complexity of the future trial is well beyond
what any Canadian could reasonably be expected to bear.

6. That current case law may apply to some of the elements of this case, but in no way
could rectify the charter breaches relating to all of the fair trial charter infringements.
 2

7. The need for new and stronger Case Law to provide adequate deterrence to state
agencies, whose representatives would seek to utilize, in an organized fashion, the
resources of the state, to cover up wrongdoings on their part, and pursue malicious
prosecution against severely disadvantaged Canadians.
 3

Section 2: Elements
Prosecutorial Misconduct
Four types of prosecutorial misconduct identified here are: (1) offering inadmissible
evidence in court, (2) suppressing evidence from the defense, (3) encouraging deceit
from witnesses, and (4) prosecutorial bluffing

Some of the identified prosecutorial misconduct in this case are:

1. Repeated outbursts of laughing or excessive drama directed at the Accused during

the trial by both prosecutors, which at one point resulted in prosecutor Clayton Giles
being escorted out of the courtroom by the attending sheriff because of the backlash
from the gallery.

a. The outbursts were witnessed by those who attended court as attested in

paragraph 12 of the affidavit of Collet Stephan filed Dec 14th 2018.

2. Witness tampering over points of evidence that could have provided an alternate
cause of Ezekiel’s Cardiac arrest, without creating the need to dismiss facts that were
contradictory to the Crown’s narrative, including, but not limited to, the fact that
numerous people recalled seeing Ezekiel at church two days before he went into
extremis.

a. Of particular interest is one instance where Crown Prosecutor Clayton Giles

asked Dr. Alexander Cunningham not to comment on how much potassium
Ezekiel had. Please refer to Page 1570 line 17-18 of the trial transcripts.

Crown Prosecutor Mr. Giles to Dr. Cunningham

“Okay. And, you know, I don’t want to get into how much potassium he had or
anything like that.”

b. Please refer to Paragraph 18, and Exhibit “K” of the Affidavit of Bradford
Stephan where the potassium lab result is listed that the prosecutor did not
want Dr. Cunningham to speak of.

3. Gross negligence of Crown duties by way of the improper collection of disclosure.

a. Medical files repeatedly referenced other documents and files that have yet to
be disclosed. This evidence is relevant to the case by way of filling in large
gaps surrounding a number of perjuries that took place during the last trial.
Please refer to Paragraph 22 in the Affidavit of Bradford Stephan filed
Dec 12th 2018 that lists a number of the missing documents.

b. Medical files that were not provided and were recovered after the last trial
were relevant by way of the fact that they consistently contradict the testimony
and findings of the medical examiner. See Paragraph 13 in the Affidavit of
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Bradford Stephan filed Dec 12th 2018 and compare to page 971 lines 26 -
34 of the trial transcript where chest rise and expansion are discussed. The
medical examiner claimed his right lung was stiff and unable to expand while
numerous medical records showed equal bilateral chest rise leading up to the
time Ezekiel was pulled off life support.

c. Certain OCME medical files were not released to the defence prior to the
preliminary inquiry. While the defence thanked the Court for making the file
available to look at during the preliminary inquiry, the file was not released
until sometime after the inquiry. This draws an inference that the prosecution
was attempting to be amenable to the medical examiner and by extension,
the Department of Justice, to the extreme disadvantage of the defendant.
See Preliminary Inquiry Page 64, lines 23 - 27.

d. Prior to trial the Crown was repeatedly asked for disclosure by defense
counsel, Mr. Hoare. The Crown delayed providing disclosure for six weeks.
Please refer to page 53 lines 24 - 27 of the trial testimony.

e. The prosecution supplied a 661 page numbered binder of evidence to be

entered as an exhibit the morning that the preliminary trial commenced, and
thereby put the defense at a severe disadvantage in our ability to review and
verify it. Please refer to page 71 line 39 - page 72 line 20 of trial transcript.

4. Misrepresentations to the Court. The crown has engaged repeatedly in what

appears to be attempts to cloud the truth by way of wild accusations, half truths,
incomplete information and misrepresentations being sworn as truth and entered into
the court record.

a. The most recent example of this is found in Paragraphs 4 through 14 of the

Response Affidavit of David Stephan filed the 21st of Dec 2018 where an
affidavit sworn to be true by Ms. Hurley of the Crown Prosecutors office
represents multiple incorrect and false statements as the truth.

b. The most egregious example was during final submissions of the Crown
where a large number of misrepresentations were presented to the Jury as
highlighted from Line 40 on Page 3359 of the trial transcripts to the
bottom of page 3385. The defense raised the issues with the Court seeking
for remedy. On a particular issue of severity, Ms. Weich lied to the Court
indicating that she had not said what she in fact had, as evidenced from the
Trial Transcripts as highlighted below. Unfortunately, proper remedy was
never granted as discussed in Judicial Bias and Misconduct below.

c. Crown prosecutor Ms. Weich in final submissions to the jury Page 3348 lines
34 - 36 of the trial transcripts wherein she equates Ezekiel’s squirming to be
from stiffness.

“I would suggest to you that this resistance, given what we’ve been hearing
 5

about the stiffness, you might conclude that it was just as likely to have been
because Ezekiel was uncomfortable, and he just wanted to be left alone.”

d. Of note, Ms. Weich represented to the court that she did not say “stiffness” in
her final submissions.

Mr. Buckley Page 3365 lines 26 - 32 of the trial transcripts

“So I’ll move on to my next heading, which is titled "Tony Stephan, Browne v
Dunn issue”.

So when speaking about Tony Stephan’s evidence that Ezekiel always

resisted sitting on his lap, the Crown suggested that it was because of
stiffness.

MS.WEICH: I didn’t say "stiffness."

e. Speaking to the Crown misleading the jury please refer to Trial Transcript
Pages 3368 lines 27-40, 3369 lines 33-41, 3370 lines 1-3
Mr. Buckley:

“So on a very key point, the jury is left with a very misleading summary of the
evidence, and if you recall my friend aggravated by reading actually long
portions of their notes of Dr. Burkholder’s evidence, and when you do that, it’s
-- you know, and -- it’s just adding weight and credibility. It was just a huge
point of the Crown reading Dr. Burkholder said this and this and this and this
and went on and on and on. What’s that? Weight, weight, weight, not
mentioning at all, Oh, yeah, by the way, but, you know, our other doctors that
we called after disagreed totally, and we did enter the CT scan for the truth of
its contents, but now we’re just saying we don’t dispute the radiologist wrote
that.

It’s like the Crown is now basically latching on as Dr. Burkholder, who’s the
outlier. She’s the outlier. There’s no other way to describe that evidence as an
outlier, and the defence is concerned because we don’t have a chance to
respond because that unless the evidence on that point is fairly reviewed for
the jury, they are left with a very misleading impression on key evidence.

...My Lord, I was on paragraph 23, and just -- which then raises a different
point, and it -- you know, we were on the point that, you know, the Crown
brought up Dr. Burkholder and saying, you know, there’s no way any hypoxic
or anoxic injury caused by the ambulance problems would show up on a CT
scan for at least five hours.
And so at paragraph 23, I point out that even more significant is the Crown’s
saying that Dr. Sauvageau is wrong because of Dr. Burkholder’s evidence is
that the Crown never put to Dr. Sauvageau Dr. Burkholder’s proposition that
the swelling on the CT scan could not be a hypoxic or anoxic injury because it
 6

would take at least five hours for, like I said, that swelling from such an event,
or I guess for there to be, but -- and that creates a clear Browne v Dunn
situation.”

5. Crown Duties Regarding Perjury of their witnesses - R v McNeil. The Prosecutor

has a duty to perform an inquest into perjuries committed by its witnesses and report
back as to why their witnesses lied under oath. This has never been done. Evidence
of some of these perjuries can be found in Paragraph 8 and sub sections of
Bradford Stephan’s Affidavit filed the 12th of Dec 2018.

6. Crown Prosecutors either are aware or should be aware of crimes that took
place during the prior trial and events leading up to it by their witnesses, the RCMP
and other state employees. They have not done anything to rectify these situations,
but rather appear to be leveraging these events to create a severe complexity and
imbalance of power in their favor, for both the previous and upcoming trial.

a. Please refer generally to Bradford Stephan’s affidavit filed the 12th of Dec
2018 where evidence of some of these crimes are detailed.

b. Please refer to the affidavit of David Stephan filed Dec 13th 2018 where
some of these crimes are evidenced.

c. Please refer to the response affidavit of David Stephan filed Dec 21st 2018
where some of these crimes are evidenced.

d. Please refer to the elements section of this document where some more of
these crimes are evidenced.

7. Unlawful Tactics by crown prosecutors and their witnesses. Crown prosecutors

repeatedly employed illegal and unlawful tactics throughout the last trial. This ranged
from parading numerous medical witnesses in front of the jury who would testify of
the same suspect information, to censoring witnesses by way of repeated and
disruptive objecting, to witness tampering, to ambushing the defense with new
elements that were not found in disclosure and redacting of critical evidence.

a. The most notable instance was of ambush. A Crown witness introduced a

new element into the trial that had never been disclosed or previously
discussed. The defense counsel applied for a mistrial but was denied.
Please refer to pages 1599, 1604 and 1621 - 1622 of the trial transcripts.

b. Defense Lawyer Shawn Buckley page 1599 lines 24 - 34

“I’ve had no indication at any time in the disclosure that I’m aware of or from
any of the Crown witnesses or at the preliminary inquiry that dehydration was
an issue. ...This is now a medical issue that’s coming out at near the end of
the second week of trial catching the defence squarely by surprise. I have not
consulted any experts on this issue. I have not cross-examined any of the
 7

prior witnesses on this issue. I don’t know how I’m supposed to respond now
a new medical issue of dehydration being introduced in a witness that’s not
qualified as an expert and has been introduced just to say what he saw.”

c. Defense Lawyer Shawn Buckley page 1604 lines 34 - 35

“this is a complete sandbagging by the Crown of the defence late in the trial
when potentially there’s not another expert going to be called,”

d. Defense Lawyer Shawn Buckley page 1621 line 27 - 1622 line 2

“And in a lot of cases, what we’re dealing with is where a witness will just
spontaneously -- you know, it’ll (sic) blurt out, Oh, yeah, the accused was
convicted of this before, and all of a sudden there’s character evidence, and
quite often a charge will solve that. But that’s a very different matter than the
Crown -- so, you know, any party deliberately basically setting a witness up as
being authoritative, which is what happened this morning, and then
deliberately and knowingly leading evidence, you know, late in the trial on a
significant matter, you know, going to both the core issue and to the credibility
of my clients as a matter of a trial tactic.

Because that -- this wasn’t a mistake. This wasn’t a witness blurting

something out by accident. This was a witness deliberately being prepped to
be credible in front of the jury and then being deliberately led to draw out that
specific evidence. And it became very clear after I objected that the Crown
had specific reasons why they were wanting to draw that evidence. And, you
know, that goes specifically to trial fairness, and it just seems to be
aggravated that there’s now other potential witnesses that the Crown has
given me notice of today when, at least the documents I’ve been given,
indicate as early as March 9th they were aware of the issues.”

8. Collusion between Crown Prosecutors and Witnesses to facilitate perjury. Upon

review of the trial transcripts and the newly discovered evidence:

a. It was noted that Crown prosecutors placed a strong focus on facts that were
suspect or even the result of falsified information or perjury. As a clear
example of this I would refer to information above in Paragraph 7 d., where
the defense counsel Shawn Buckley describes how the Crown Prosecutors
set Lloyd Clark up as an authority and then lead him into the claim of Severe
Dehydration. Pertinent facts surrounding this event are itemized below:

b. None of the reports or medical documents relating to Dr. Lloyd Clarke’s

involvement indicated anything about dehydration. Please refer to Exhibits
“A”, “B” and “C” of the Affidavit of Bradford Stephan filed Dec 12th
2018. Please refer to pages 244 to 295 of Exhibit AU of the affidavit of
Bradford Stephan Filed Dec 12 2018 which contains all of the Cardston
 8

Hospital records.

c. Dr. Lloyd Clark introduced “Severe Dehydration” as an element into the trial
after the expert witnesses had already testified. Please refer to page 1599
line 1 of the trial transcripts.

d. The Crown Prosecutors led Dr Lloyd Clarke to speak about the evidence.
Please refer to page 1598 and line 1 of page 1599 of the trial transcripts
where this leading took place, as well as 1621 - 1622 of the trial transcripts
where these events are discussed by the Defense Lawyer Shawn Buckley.

e. Page 1621 line 27 - 1622 line 2 Defense Lawyer Shawn Buckley

“And in a lot of cases, what we’re dealing with is where a witness will just
spontaneously -- you know, it’ll (sic) blurt out, Oh, yeah, the accused was
convicted of this before, and all of a sudden there’s character evidence, and
quite often a charge will solve that. But that’s a very different matter than the
Crown -- so, you know, any party deliberately basically setting a witness up as
being authoritative, which is what happened this morning, and then
deliberately and knowingly leading evidence, you know, late in the trial on a
significant matter, you know, going to both the core issue and to the credibility
of my clients as a matter of a trial tactic.

Because that -- this wasn’t a mistake. This wasn’t a witness blurting

something out by accident. This was a witness deliberately being prepped to
be credible in front of the jury and then being deliberately led to draw out that
specific evidence. And it became very clear after I objected that the Crown
had specific reasons why they were wanting to draw that evidence. And, you
know, that goes specifically to trial fairness, and it just seems to be
aggravated that there’s now other potential witnesses that the Crown has
given me notice of today when, at least the documents I’ve been given,
indicate as early as March 9th they were aware of the issues.”

f. The Crown was aware of the issue with the evidence in question and was
prepared for the fact that the defense would take issue with it. Please refer to
Page 1599 lines 20 - 22 of the trial transcripts

“MR.GILES: As I hope the Court appreciates, Sir, I approached that

question carefully and slowly to allow my friend to object so that we
could define whether or not this question is fair ball.”

g. Of particular interest, there are numerous records of fluids being given to

Ezekiel the day that Dr. Clarke was referencing when he claimed Ezekiel was
severely dehydrated. The fact that Dr. Clarke, or any other witnesses, did not
note dehydration in any of the medical reports, the day Ezekiel went into
extremis, and the fact that he was well hydrated up to the point he entered the
 9

hospital as shown in the ambulance PCR and testimony of Sheila Thomson,

and the fact that there is a significant amount of Prima Facie evidence proving
that Lloyd Clarke had repeatedly perjured himself, leaves this element
introduced by the crown as suspect. Of note; there are numerous other
references throughout the disclosure speaking to the fact that Ezekiel had
been given an electrolyte drink (that contained potassium). Please refer to
Pages 318 of the trial transcripts, Page 3 of Exhibit A of the Affidavit of
Bradford Stephan Filed Dec 12 2018.

h. On Page 318 lines 33 - 38 of the trial transcripts Sheila Thomson, a social

worker involved, testified of being told about fluids given to Ezekiel the day he
entered the hospital. The 911 call recordings corroborate these facts.

“Q Stop right there. Thank you. Continue.

A Okay. They -- that David went in and met with a naturopathic doctor. Talked
to the doctor about their concerns for Ezekiel. Received a drink, a boost or
energy-type drink for him that -- he drank some of that. They’d also been
giving him a drink they described as -- as having electrolytes and felt
that with those two fluids, that he seemed to be perking up again.”

i. Page 3 of Exhibit A of the Affidavit of Bradford Stephan Filed Dec 12

2018 indicates that prior to arriving at the hospital Ezekiel was given a 200 Ml
Bolus of fluid which is significant because a child his size has approximately
800 ml of blood in their body.

j. As another example of witness leading, during the review of the transcripts it

was noted that a theme of careful avoidance of certain facts surrounding the
events that were most associated with perjuries and missing documents was
present. Please refer to pages 1568 - 1574 of the trial transcripts where
Dr. Alexander Cunningham is being questioned by Crown prosecutor, Clayton
Giles. During the questioning a concerning pattern is identified:

k. Crown prosecutor Clayton Giles, during Dr. Cunningham’s testimony,

repeatedly places a focus only on locations within the hospital where Dr.
Alexander Cunningham was not involved in medical malpractice. Questions
and answers entirely ignoring other hospital locations and times that Dr.
Cunningham was involved in Ezekiel’s care. He does so in such a way as to
leave an impression that the locations focused on were the only locations Dr.
Cunningham was involved and that his involvement did not take place during
the time that Ezekiel’s physical state changed and rapidly declined in the
 10

Lethbridge Regional Hospital. This tactic creates a false and deceptively

incomplete impression as to where in the hospitals Dr. Cunningham engaged
in providing assistance to Ezekiel and what questions he would have been
able to answer in cross examination.

l. Please refer to page 1569 of the trial transcripts where during the
prosecution's questioning of Dr. Cunningham, it is made to appear that Dr.
Cunningham’s involvement started by providing assistance in the emergency
room in the Cardston Hospital.

Page 1569 lines 13 - 41 of the trial transcripts

“Q All right. Give me a quick overview, if you -- if you can, of the overall
situation as you encountered it.
A Okay. I was called in by the attending physician, who was Dr. Clarke, who
was working in the emergency department at that time, and I was called in as
an assisting physician because of my added skills in anesthesia; and, so,
when I presented to the department, the patient had just been moved from the
ambulance to the emergency room and was already in a state of -- sorry,
there was already a resuscitation going on, so. . .”

“Q All right. Just give me a notion for whereabouts this was occurring. Was it
at the hospital?
A This is at the -- yeah, at the Cardston emergency room, yeah.

Q All right. Big room? Small room?

A Um, the -- the trauma space, a medium-sized room, I guess. Probably, you
know, 20 feet by 30 feet.

Q All right. How many people are already in there doing things?
A I can’t recall exactly, but we would have had at least two nurses and then
another physician, Dr. Clarke and myself, as well as a -- a minimum of two
EMS.

Q All right.
A So. . .

Q A lot of people?
A Yeah.”

m. Please refer to Page 1574 lines 24 - 31 where the prosecution's questioning

ends with a question of was there was any change in Ezekiel’s condition
during the trip to Lethbridge.

“Q How about when you got to Lethbridge?

 11

A No.

Q So was there any change in his condition, other than his physical location,
while he was under your care during that trip?
A No.

Q Thank you very much. Those are all my questions.”

n. Further to the incomplete timeline that was re-enforced during this testimony,
Crown Prosecutor Clayton Giles appeared to be steering the witness away
from the dangerous topic of intubation. Note that Dr. Cunningham refers to
re-intubating Ezekiel with a size 4 intubation tube. Please refer to page 1571
lines 8 - 25 of the trial transcripts.

“Q All right. And what do you mean by "I was involved in the immediate
hands-on care"? What does that actually mean?
A So in this setting, there’s obviously a lot of activity happening.

Q Yes.
A My focus is ensuring that we have appropriate airway management, so
ensuring that we can provide oxygen to the lungs and subsequently blood and
then brain, because that is the most vital at that point, and, so, looking at he
was already intubated with an endotracheal tube. It was switched in order to --
to further accommodate appropriate care, and I did that. I made that
exchange, so I reintubated him with a Size 4 tube and --

Q So, ultimately -- and I don’t mean to break into you here --

A Yes. That’s okay.

Q -- if there’s more that you feel that you have to go, but you’re trailing off a
bit, and I’m more then happy to give you the next question.
A Sure.”

o. Medical records would indicate a very different course of events than what the
crown led questioning and perjured testimony of Dr. Cunningham would
indicate. Dr. Cunningham had arrived long before the 4.0 intubation tube was
applied as he had used the wrong sized tube in a previous intubation and his
part in providing care for Ezekiel did not end upon arrival to the Lethbridge
Hospital. Please refer to Exhibit “D” of the Affidavit of Bradford Stephan
Filed Dec 12 2018 where the cardiopulmonary report indicates:

i. Dr. Clarke Arrived at the Cardston Hospital at 22:15

ii. Dr. Cunningham Arrived at the Cardston Hospital at 22:18

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iii. A 3.0 sized intubation tube was applied at 22:19 by Dr. Cunningham

iv. A 4.0 cuffed Intubation tube was applied at 23:15 by Dr. Cunningham

p. Please refer to Exhibit “C” of the Affidavit of Bradford Stephan Filed Dec
12 2018 where the report of Dr. Lloyd Clarke indicates:

i. Upon arrival (22:15 as seen in exhibit “D”) into the Ambulance Bay Dr.
Lloyd Clarke speaks of an intubation inside the ambulance while in the
Ambulance bay which the cardiopulmonary report indicates was
performed by Dr. Cunningham.

q. Please refer to Exhibit “B” of the Affidavit of Bradford Stephan Filed Dec
12 2018 where the report of Dr. Alexander Cunningham indicates:

i. That an intubation took place in the ambulance bay

ii. Dr. Alexander Cunningham stayed on as a medical caregiver for

sometime after arriving at the Lethbridge Regional Hospital.

r. Please refer to Exhibit “A” of the Affidavit of Bradford Stephan Filed Dec
12 2018 where the Cardston Ambulance PCR indicates:

i. That the size 3 intubation tube is the incorrect size and that “intubation
difficulties took place”

s. Please refer to Exhibit “M” of the Affidavit of Bradford Stephan Filed

Dec 12 2018. This document is the log of the Cardston to Lethbridge
Ambulance PCR (Patient Care Report) that Dr. Cunningham attended and
returned, which indicates on page 168:

i. That care was turned over at 1:04 am.

t. Please refer to Exhibit “Z” of the Affidavit of Bradford Stephan Filed Dec
12 2018 which shows:

i. That ROC (Rocuronium Bromide) was given to Ezekiel before 00:45

which was during the time that Dr. Cunningham was still providing
care to Ezekiel.

u. Please refer to page 1301 of the trial transcripts where Dr. Shauna
Burkholder discusses:

i. The fact that Ezekiel was having spontaneous respiratory efforts when
the stars team arrived and when the Drug ROC was administered
(before 00:45 according to Exhibit “Z”)
 13

v. Summary: there is clear evidence in the trial transcripts of Dr. Alexander

Cunningham's testimony of deceptive tactics employed by Crown Prosecutor
Clayton Giles as well as perjuries by Dr. Sandy Cunningham. The deceptive
tactics steered the defense away from questions surrounding what the
investigative team and their medical inquiries deemed to be contradictory
facts to evidence presented in court. Also, this evidenced the fact that while
still under Dr. Alexander Cunningham’s care, Ezekiel did in fact experience
numerous changes in state. These changes included, spontaneous
respiration, a severe cardiac arrest, a reintubation, over cooling etc. For
further information on these facts please refer to the affidavit of Bradford
Stephan Filed Dec 12 2018 Exhibits “W”, “X”, “Y”, “Z”, and “AA”.

w. Leading a witness to deceive is an illegal tactic:

“The role of prosecutor excludes any notion of winning or losing; his function
is a matter of public duty than which in civil life there can be none charged
with greater personal responsibility. It is to be efficiently performed with an
ingrained sense of the dignity, the seriousness and the justness of judicial
proceedings” [Appendix A, pg 82, Para. 2 from this document]

x. Crown prosecutor Clayton Giles asked Dr. Cunningham repeated,

exclusionary questions regarding Ezekiel’s physical condition rather than
open ended questions that would allow Dr. Cunningham to elaborate on what
took place during his interaction with Ezekiel. The following questions and
answers are clearly engineered with the intent to lead the court to believe that
Ezekiel made no spontaneous respiratory efforts during Dr. Cunningham’s
involvement with him, which was not the case as seen in the preceding point.
Please refer to Page 1574 lines 1 - 31

“Q Was that the condition that he left Cardston in?

A Yes.

Q Was it the same condition when he got to Lethbridge?

A Yes.

Q What about the breathing? The same condition and -- when you left
Cardston as when you got to Lethbridge?
A Yes.

Q Any change en route?

A No.

Q For either breathing or heartbeat?

A No.
 14

Q All right. Was he responsive in any way, shape, or form?

A No. Not at that point.

Q Was he responsive in any way, shape, or form before you left

Cardston?
A No.

Q How about when you got to Lethbridge?

A No.

Q So was there any change in his condition, other than his

physical location, while he was under your care during that trip?
A No.

Q Thank you very much. Those are all my questions.”

9. Prosecutorial Bluffing is a potentially devastating tactic that is used to divert and

deplete a litigant’s resources creating undue hardship and resulting in a lack of
attention to other critical elements of a case.

a. One example of this misconduct that took place during the prior trial was
bluffing over the Vaccine Element: As seen below, the defense was told that
this was a primary element of the trial. See Preliminary Inquiry Page 15
lines 13 - 27.

b. The defense placed a significant amount of time and resources on this

element. After a great deal preparation, the defense was informed a week
before the trial that the prosecutors would not be moving ahead with this
element.

c. The result of this bluffing was devastating to the defense in that critical
resources that should have been directed to medical experts surrounding
Ezekiel’s care, was subsequently wasted on building a vaccine argument.
This cascaded into the defense missing key elements of concern in the
medical files that would prove misconduct and a coverup.

Judicial Bias and Misconduct

10. The Justice heavily biased his “findings of facts” by adopting the crown’s
narrative, while excluding key points of the defence’s contradictory evidence, painting
an incorrect and substantially grim picture of what took place surrounding the passing
of Ezekiel. The exculpatory facts that were omitted by the Justice are some of the
very same facts that were discussed by the Supreme Court Justices surrounding the
care of Ezekiel.
 15

11. Public shaming was utilized in the sentencing from the previous trial. Collet, one of
the Accused was ordered to post to her social media accounts the Justice’s decision,
that was the result of the wrongful conviction. Collet Stephan was also ordered to
post the ruling to websites and social media accounts that were not under her control.
This posed a special challenge in that if she could not get the administrators of those
sites to post the unlawful ruling, she faced possible jail time and further damage to
her and her children.

a. Please refer to paragraph 17 on page 20 of the Reasons for Sentence of

Justice R.A. Jerke where he states:

“Ms. Stephan shall post or cause to be posted an unedited accurate copy of

this decision to the following website address:
https://www.facebook.com/PrayersForEzekiel, and any website or social
media sites that she is personally affiliated with.”

12. Censoring of a key defense witnesses was directed by the Justice

a. Please refer to page 2971 and 3038 of the trial transcripts where Dr. Anny
Sauvageau, discusses her concerns over being censored by the court. Of
note is the fact that she reported this was the first time this had happened to
her in her entire career in which she had previously testified in over 300 trials.

Page 2971 lines 20 - 26

Q MR. BUCKLEY: So with the assumption of viral meningitis and avoiding

bacterial meningitis, could you comment with those constraints basically on
expected outcomes?

A Yes. I -- I’m just worried because I need to be impartial and neutral, and I
need to evaluate all the options. So just to make it clear, I am forced into a
corner where I have to be less neutral and less impartial than I intended to be,
but it’s not my decision. It’s apparently a Court decision. So --

Page 3038 lines 3 - 8

A I run into the problem that to answer the question, I will have to refer again
to the part I’m not allowed to talk about, so it’s kind of going circle, so I can’t
answer this question by saying the truth, the whole truth, and nothing but the
truth, so I -- I’m kind of stuck.

Q Okay. Then I’ll take back that question, too, okay, so just forget about it.

Page 2971 lines 32 - 35

“because I -- my integrity is -- as an expert witness, your integrity must come

first, and no one can force you to say something that’s not true, and that’s
 16

including the Court. So I’m forced now into a corner where what I will say is
not all the truth. It might be the truth, but it’s not all the truth, but that’s not my
decision.”

13. The Justice maintained a double standard during the trial that favored the
prosecution. He allowed Prosecution witnesses to far exceed their scope of
expertise as seen below while heavily sensoring defense witnesses.

a. In one instance the Justice did nothing when a Prosecutor’s expert witnesses
gave evidence that far exceeded her expertise. This took place even after she
admitted that what she was giving evidence to, was outside her expertise.
Please refer to page 1321 and 1322 of the trial transcripts where Dr.
Shauna Burkholder is giving evidence on topics that a radiologist would have
the expertise in. Page 1322 lines 2 - 8.

“So that’s the information I gave them. That’s all they know about the patient.
They don’t know that the patient has Kernig’s sign and Brudzinski sign. They
don’t know any of those things, so -- and I guess when I interpreted this, the
CT, you’re right. I’m not a radiologist. But I look at CTs, and when I saw the
high -- the degree of hydrocephalus that I saw, which is the increased
ventricles, the increased flu -- CF spaces inside the brain, to me, that is not in
keeping with only hypoxic -- a hypoxic event.”

14. Justice Jerke misused his gatekeeper role by setting a new precedent in law that
would allow the crown to stack the deck with cumulative medical evidence against
the Stephans. This precedent was recently referenced in R .v Clark and allowed
more expert witnesses than was previously normal by way of the fact that it was a
complex medical issue. Though Justice Jerke allowed exceptional latitude for the
Crown on this matter, he allowed or directed half of the witnesses called by the
defence to be censored.

a. The Justice allowed an extraordinary number of uncensored medical

witnesses for the crown which served to provide cumulative evidence,
resulting in “oath-helping or compurgation”.

b. Whereas, the Justice allowed for the extreme censoring of two of the four
witnesses called by the defense.

15. Unlawful or inaccurate evidence being allowed during the last trial.

a. Statements taken by RCMP, from the accused, were taken when the accused
had been awake for over 40 hours and after they had been subjected to more
than 17 hours of what has now been identified as false information. This false
information was fed to the Accused by medical doctors who not only had a
vested interest in the coverup, but also were the ones who initiated the
involvement of the police and arranged for the statements only after they had
 17

inundated the accused with false information that supported the coverup.

b. At the time of the interviews, which took place between 12am to 4am on the
15th of March, the Accused had been awake for over 40 hours.

c. The Accused were in a state of severe shock before and during the time the
statements were taken.

d. David Stephan, one of the accused had also been engaged in a fast, wherein
he had been without food for over 24 hours.

e. Before being interviewed, the accused were inundated by medical information

at the Alberta Children’s Hospital in what we believe was an attempt to see
how pliable and naive they were. I.e. the defence was initially informed that
Ezekiel’s inability to respond was caused from a medically induced coma,
which medical staff soon changed into “brain stem detachment” due to the
incredible swelling from Bacterial Meningitis. Please refer to Exhibit “P” of
the Affidavit of Bradford Stephan filed Dec 12, 2018, where Dr. Aioffe
O’Carrol indicates the CT scan showed nothing for the Diagnosis of
Meningitis.

f. The resulting statements include information about out of context comments

and incorrect information about muscle stiffness, bacterial meningitis at a
medical level, observations of Ezekiel made by David when he was in fact
over 890 Km away at the time in North Eastern Saskatchewan.

g. Mr. Giles quotes David Stephan’s police statement regarding the timing of
Ezekiel’s lethargy. David states that he didn’t personally observe Ezekiel
becoming lethargic because he was out of town on business at the time
referred to. Please refer to Pages 2367-2368 of the Trial Transcript.

Page 2367 line 15

MR. GILES: “... you noted back then that he’s a little lethargic and still not
wanting to do very much?”
Answer is found on page 2368 lines 6 - 15
MR. STEPHAN: “Well, yeah, I’m trying to figure out what time I’m talking
about there, because if we’re talking a full week, we are talking, um, that this
would be more into the -- the next Tuesday. However, there’s a disconnect
with this because -- and -- and with the symptoms, especially the -- you know,
with me saying the term "lethargic". That would be more appropriate that that
would have first been attributed to more of the -- the Tuesday of the next
week, um, and, so, there’s a disconnect here, though, because I think there’s
a conglomeration of information here that’s kind of getting grouped
together in the statement, and it’s not making a whole lot of sense
because it’s saying that I’m there, but yet at the time that he would have
started to become lethargic, that would have been the week starting
 18

where I wasn’t there,...”

Mr. Stephan explains why his police statement could contain disjointed facts.
Please refer to the Trial Transcripts Page 2368 lines 31-35:

“... there seems to be some issues with that which is not inconsistent with
some of the other stuff that’s been identified in there as well as just being a
little bit off, which I -- I guess could be kind of expected, being that it was
taken at 4 in the morning or up till 4 in the morning after the most traumatic
event in my life.”

Please refer to paragraph 35 and 36 of the Reasons for Judgment Voir

Dire on Voluntariness of the Honourable Mr. Justice R.A. Jerke

“[35] The Stephans have not raised any issue with respect to oppression or
coercion, or police trickery, as concerns statements made to Ms. Smith, Ms.
Thomson, or Constable Bulford. Determination of voluntariness therefore
requires consideration of the following questions:
i. Did Mr. Stephan and Ms. Stephan each have an operating mind at the
time he or she made the statements?
ii. Was Mr. Stephan or Ms. Stephan subject to any promises, threats, or
inducements prior to, or during the making of the statements?
iii. If so, did any of the promises, threats, or inducements affect the
voluntariness of the utterances?

Did Mr. Stephan and Ms. Stephan each have an operating mind at the
time he or she made the statements?
[36] Without doubt, both Mr. and Ms. Stephan were under serious stress when
the interview with the social workers took place. They had been awake for
much of the time since the morning of the day before. The events leading up
to their attendance at ACH, particularly the events of the day before where
Ezekiel stopped breathing were very difficult. Ezekiel's condition at the time of
the interview with the social workers was very serious. These two parents
were upset, sad, grieving, fearful and worried.”

Summation; The Justice was aware of serious issues surrounding the mental
state of the accused while giving statements. The accused had been awake
for over 40 hours at the time of the statements, were under a great deal of
stress and appeared to be suffering from a sense of paranoia which they later
discovered was justified. The resulting statement to Constable Bulford was
inaccurate, filled with “newly acquired knowledge” from the same medical staff
who were involved in falsifying evidence, perjuring themselves in court, and
initiating the police involvement. The Accused were clearly not in a state of
mind where they could reasonably make any decisions about voluntariness or
even hope to be able to relay accurate information.
 19

16. Refusal to adhere to case law and objections by the defense which led to the jury
having little choice but to convict and resulting in the overturning of the wrongful
conviction at the Supreme Court of Canada.

a. The justice refused to address repeated misinformation that was submitted to

the Jury during the prosecution's final submissions. During this time the
Crown Prosecutor Lisa Weich openly lied to the court about aspects of the
submissions that were made while the Justice was present. The Justice
ultimately refused to address the misrepresentations that were made in spite
of the fact that the defense presented Supreme Court Case Law that clearly
defined his responsibility to do so. “Browne v Dunn” Please refer to pages
3358 - 3374 of the trial transcripts

b. There were a number of sections of the Justices charge to the jury in the
previous trial which favored the prosecution and ultimately resulted in the
wrongful conviction of the accused.

c. Please refer to paragraphs 212, 213, and 214 of the Dissenting Reasons
for Judgment Reserved of The Honourable Mr. Justice O'Ferrall which
was adopted at the Supreme Court of Canada when they overturned the
wrongful conviction.

“[212] That said, a jury of their peers did find the Stephans guilty of failing to
provide the necessaries of life to their son, contrary to section 215(2)(a)(ii) of
the Criminal Code. However, as argued by the appellants, the trial judge's
charge to the jury was problematic, perhaps to the point of impacting the
fairness of the trial. At the very least, the jury charge was confusing,
misleading, and deficient in describing a key element of the offence.
Furthermore, the trial judge did not properly instruct the jury on the fault
element or the mens rea of the offence. The cumulative effect of the jury
instructions may have been an unsafe or suspect verdict.

[213] Also problematic was the fact that the trial judge's instructions to the jury
failed to adequately (or at all) caution them with respect to the evidence of the
doctors who testified as to what actions they would have taken if presented
with the child's symptoms. The standard of care demanded of a medical
professional is not the same as that required of parents lacking medical
training. The jury in this matter was to assess the conduct of the Stephans
from the perspective of what a reasonably prudent parent without medical
training ought to have done when presented with the symptoms which their
son presented.

[214] The thrust of this dissent is that the trial judge's instructions to the jury
gave them little choice but to convict. The instructions tended to give the
impression this was a strict liability offence. That is, if a parent does not take
his or her sick child to the doctor and the child dies, the parent is guilty of
failing to provide the necessaries of life. Even in strict liability regulatory
offences, due diligence is a consideration. Section 215 has been interpreted
to require objective fault, but such fault must be assessed in terms of the
 20

reasonableness of the accused's conduct.”

Crimes involved in the prosecution of the Accused

Numerous crimes were committed by state authorities, state employees and crown
witnesses during the course of the last trial and during the events leading up to it. The
following criminal code violations are referenced with the intent to provide a guide and
reference points to the Court as the evidence presented in the elements sections is reviewed
and considered. The breaches referenced speak to the level of corruption and blatant
disregard for Canadian Law that was employed by the instigators of this malicious
prosecution.

17. Perjury CC 131: Every one commits perjury who, with intent to mislead, makes
before a person who is authorized by law to permit it to be made before him a false
statement under oath or solemn affirmation, by affidavit, solemn declaration or
deposition or orally, knowing that the statement is false.

a. Doctors repeatedly perjured themselves during this case. Please refer to the
Elements section in this document as well as the Affidavit of Bradford
Stephan filed Dec 12th 2018

b. The most recent example of this is the affidavit of Ms. Suzanne Hurley filed
the 20th of Dec 2018 Please refer to the response affidavit of David
Stephan filed Dec 21st 2018

c. Some other examples of perjury are referred to in the Affidavit of Bradford

Stephan filed Dec 12th 2018 paragraphs 8, 14 and 15.

d. While there are a great deal more of these instances of perjury, due to a lack
of time we are not able to include them in this document.

18. Giving contradictory evidence CC 136: Every one who, being a witness in a
judicial proceeding, gives evidence with respect to any matter of fact or knowledge
and who subsequently, in a judicial proceeding, gives evidence that is contrary to his
previous evidence is guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years, whether or not the prior or later evidence or either
is true, but no person shall be convicted under this section unless the court, judge or
provincial court judge, as the case may be, is satisfied beyond a reasonable doubt
that the accused, in giving evidence in either of the judicial proceedings, intended to
mislead.

a. As an example please compare Paragraph 14 of the Affidavit of Bradford

Stephan filed Dec 12th 2018 to Paragraph 18 of the Affidavit of Suzanne
Hurley filed Dec 20, 2018 where the medical examiner is giving contradictory
 21

evidence. This was a constant theme with this particular witness.

19. Fabricating Evidence CC 137: Every one who, with intent to mislead, fabricates
anything with intent that it shall be used as evidence in a judicial proceeding, existing
or proposed, by any means other than perjury or incitement to perjury is guilty of an
indictable offence and liable to imprisonment for a term not exceeding fourteen years.

a. As an example please compare Exhibit “G” of the Affidavit of Bradford

Stephan filed Dec 12th 2018 to paragraph 21 of the same document
where Dr. Jon Gamble is evidenced falsifying a critical aspect of the report.

20. Obstructing Justice CC 139 (2) Every one who wilfully attempts in any manner
other than a manner described in subsection (1) to obstruct, pervert or defeat the
course of justice is guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years.

a. Please refer to the elements section of this document for numerous

examples.

21. Public Mischief CC 140 (1) Everyone commits public mischief who, with intent to
mislead, causes a peace officer to enter on or continue an investigation by
(a) making a false statement that accuses some other person of having committed an
offence;
(b) doing anything intended to cause some other person to be suspected of having
committed an offence that the other person has not committed, or to divert
suspicion from himself;
(c) reporting that an offence has been committed when it has not been committed; or

a. While not evidenced in these materials, Dr. Ross from the Calgary Children’s
Hospital meets subsection (b) when knowing about the criminal negligence
resulting in death due to AHS ill equipped ambulance, diverted suspicion from
AHS by accusing us and inciting and criminal investigation into us.

22. Causing death by criminal negligence CC 220 b: Every person who by criminal
negligence causes death to another person is guilty of an indictable offence

a. This is established within the testimony of Kenneth Cherniawsky, wherein it is

identified that AHS had been put on notice numerous times starting
approximately a year previous, that the ambulance was ill-equipped and yet
they omitted to act upon this information until one week after the ill-equipped
ambulance resulted in being one of the major contributing medical
misadventures that led to Ezekiel’s death. Please refer to pages 1785 line
11 - 1786 line 8 of the trial transcripts where EMS Kenneth Cherniawski
describes the negligence affecting the ambulance that likely led to Ezekiel’s
Death. Please refer to pages
 22

Q “And you know from your experience that you need bag valve masks of the
right size --
A Yes.

Q -- for infants and children?

A Yes.

Q And you know the ambulance is not stocked with those sizes. So protocol
says you have to use this; ambulance isn’t stocked to use it?
A Yes.

Q And because you were aware of that, you had asked, I presume,
higher-ups?
A Yes. Leadership, yes.

Q And you used the word "several times". Basically you’re asking, Why don’t
we have this equipment?
A Yes.

Because it’s clear to you as a paramedic if you get a call where you need that
equipment, you’re not going to have it?
A Yes.

Q And as I understand your evidence, nothing happens, nothing changes?

A That is correct.

Q So the ambulance aren’t restocked?

A That is correct.

Q So for your personal experience at Cardston -- so you work a couple of

years in Cardston at least with the smaller-sized masks?
A Yes.

Q Then the protocols come out and somebody de-stocks the Cardston
ambulances with a smaller-sized masks that you used to have access to?
A Yes.

And then for this year or more, the Cardston ambulances do not have the
smaller-sized bag valve masks?
A Yes.”

Please refer to page 3061 lines 28 - 32 of the trial transcripts where when
cross examined by the Crown, Dr Anny Sauvageau indicates her expert
opinion on the cause of death of Ezekiel Stephan.

“Q So it was the ambulance that killed him?

 23

A On balance of probability, I cannot tell you at 100 percent the cause of his
brain death, which means the cause of his death. On balance of possibility,
my opinion, is that it’s directly related to the paramedic intervention, that
without that, on balance of probability, he would have survived.”

23. Conspiracy CC 465 (1) (b): every one who conspires with any one to prosecute a
person for an alleged offence, knowing that he did not commit that offence.

a. This charge applies to the medical doctor’s who participated in this case and
very likely at least one of the Crown Prosecutors who tried the Accused.
Please refer generally to the Affidavit of Bradford Stephan filed Dec 12th
2018.

24. Spoliation of evidence is a major concern in this case. There are numerous
instances of the Spoliation of evidence some of which show a clear effort and intent
to remove and destroy access to evidence. Of note is that all of the missing or
withheld evidence that has been recovered to date, has been found to be relative to
the same events that medical staff perjured themselves over.

a. Cardston Hospital Fax. This piece of evidence is of particular interest in that:

b. the document was produced in Cardston and contained 6 pages.

c. The document was sent to and received at the Lethbridge Emergency Room
fax machine with 6 pages. Please refer to Exhibit “AI” of the Affidavit of
Bradford Stephan filed Dec 12th 2018 Which contains the fax.

d. The document was recovered in the Alberta Children’s Hospital files with only
5 pages, but was marked as received with 6 pages.

e. The document was completely removed from the Lethbridge files along with
all but three pages of medical records. Please refer to Exhibit “V” of the
Affidavit of Bradford Stephan filed Dec 12th 2018. Which shows the
response to the Health Information Access Request pertaining to these
records.

f. The page that was missing from the Fax was listed on the fax cover page and
was also found to be missing from the Cardston Hospital medical files.

g. The page that was missing was identified as the recording nurses report titled
the “Nursing Summary of Present Condition” which would contain information
surrounding the events that took place at the Cardston Hospital that the
Doctors perjured themselves over.
 24

h. Of particular note is the fact that the Nursing summary was removed from
three hospitals that the fax logs indicate had receipt of it.

i. Missing Lethbridge medical records, see above and Please refer to

Paragraph 20 of the Affidavit of Bradford Stephan filed Dec 12th 2018.

j. Please refer to Paragraphs 21 and 22 of the Affidavit of Bradford

Stephan filed Dec 12th 2018 which further evidences the spoliation of
evidence in this case.

RCMP Bias and Misconduct

RCMP Bias and misconduct was a factor in the investigation

25. Numerous biases were held by the RCMP. Please refer to the Affidavit of David
Stephan filed Dec 13th 2018 Exhibit “B” which is the Affidavit of Angela Tabak who
spoke with one of the RCMP officers involved in the investigation. In her Affidavit she
evidences numerous biases held by the RCMP.

26. Biases held by former RCMP officer who directed the investigation. Please
refer to Paragraph 25 and 26 of the Affidavit of Bradford Stephan filed Dec 12th
2018 where he describes the biased attitude and actions of the now former RCMP
Officer Kelly McCoy who swore out charges against the Accused.

27. There is strong evidence to suggest that the RCMP engineered the case against the
Accused, while knowingly and intentionally leaving out exculpatory evidence.
Although not included in the materials to be relied on for this application, their PROS
file evidences the fact that they were building a case against at least one
non-compliant witness they sought to obtain a statement from. They neglected to
obtain statements from first responders and other critical care providers who would
have had a first hand knowledge of key factors in Ezekiel’s death. Had they acquired
these statements at the same time as they did the Stephan’s, the medical staff would
not have had the opportunity to engineer a coverup. The defense recently provided
the RCMP with at least 719 pages of the defense file for the purpose of investigating
the crimes committed leading up to and during the trial, which ultimately and illegally,
ended up in the possession of the Crown. There are more issues of bias,
wrongdoing and history between the Stephan’s and their extended family with this
particular RCMP detachment. The issues experienced by the Stephan’s stem back
to 1999 when David Stephan’s father engaged in a national media campaign against
the CRA over the wrongful death of David’s mother and went as far as to swear
charges out against the CRA agents involved. Please refer to the Affidavit of
David Stephan filed Dec 13th 2018 Exhibit “C” which has a small sample of some
of the news articles that were printed.

a. Please refer to the affidavit of David Stephan filed Dec 4th 2018 Exhibits
“3” and “4” which evidences the fact the the RCMP chose by name and
cherry picked the most beneficial medical files for pursuing charges,
 25

rather than requesting “all medical records”. Consider the fact that it is
infinitely easier to request “All Records” than to learn the names of the
individual records and request them specifically by name. No reasonable
person would see this event as an accident or mishap.

b. Of note; evidence that was exculpatory and contradictory to crown evidence

was repeatedly found throughout the omitted / withheld medical documents.
Please refer to Paragraph 13 of the Affidavit of Bradford Stephan filed
Dec 12th 2018 which references Exhibit “F” of the same Affidavit.

28. Statements were not taken of critical care providers. Of interest, the police did
not seek or have not disclosed a single statement of medical staff who cared for
Ezekiel. This is concerning as not acquiring initial statements from witnesses in a
timely fashion is likely what led them to believe that they had the latitude to adjust
their stories, alter medical evidence and attempt to unify their stories. This is
something that experienced investigators should, and would understand and as such
is at best suspect.

29. Breach of litigation privilege. Please refer to Paragraph 25 of the Affidavit of

Bradford Stephan filed Dec 12th 2018 which refers to the fact that the RCMP
illicitly supplied 719 pages of the Accused's defense file to Crown prosecutors
that was supplied to the RCMP for the sole reason of inciting an investigation into the
aforementioned crimes.

Hardship
The prior case has created a state of financial, psychological and social hardship for the
Stephans and the future case will further that hardship.

30. The prior case cost the Stephan’s upwards of $1,000,000.00. Please refer to the
affidavit of David Stephan filed Dec 13th 2018 where receipts and invoices are
found in Exhibits “F” and “G”. Of note, there is an indication that these receipts are
incomplete and that the time allowance for submissions expired before the accused
had a chance to organize or recover the other invoices and receipts.

31. Please refer to the Affidavit of David Stephan filed Dec 13 Exhibits “A” which
speaks to the effect of the hardship on the family.

32. Please refer to the affidavit of Collet Stephan filed Dec 13th Exhibit A (pages 1 -
46 as page 2 (not 47) was improperly stamped as Exhibit B) which evidenced an
extremely small sample of the persecution faced by the Stephan’s which has also
resulted in David losing a significant number of speaking engagements which he
relies upon for his financial support.
 26

Complexity
33. Complexity. The prior trial was complicated by a number of factors and the new trial
will require a much greater amount of time, legal preparation, investigation and
witnesses. As the investigation continues to uncover the names and actions of
individuals who committed crimes in the malicious prosecution of the accused, the
complexity required to expose these people and ensure the proper administration of
justice will increase.

34. Medical experts required for the next trial will be extensive. In the preceding
paragraphs we have provided evidence of wrongdoing and bias by the RCMP, Crown
Prosecutors and Judiciary. The preceding paragraphs have also evidenced a small
sampling of the complex and deep rooted effort by the medical doctors to obfuscate
the events surrounding Ezekiel’s death. The only possible way that the Accused may
reasonably expect to overcome these complexities in the next trial will be through
thorough analysis and testimony of experts who are not involved in the coverup. The
defence has provided a short list of some of the medical experts we have identified to
be needed for the upcoming trial. The estimated cost of these expert witnesses
exceeds $1,000,000.00.

a. Radiologist
b. Cardiologist
c. Neurologist
d. Neuro Pathologist
e. Forensic Pathologist
f. Hematologist
g. Lung specialist
h. Microbiologist
i. Clinical Psychologist
j. Infectious disease specialist
k. Paramedic
l. Pediatric specialist
m. Immunologist
n. Criminal Investigative expert

35. Falsification of autopsy. One of the major issues during the last case was the fact
that Alberta Justice had falsified the autopsy report for Ezekiel Stephan. Several
factors that the crown is in fact aware of are:

a. The autopsy report lists two causes of death. Please refer to Exhibit “AU”
of the Affidavit of Bradford Stephan where on page 296 is a copy of the
front page of the Autopsy Report provided to the Accused in the recent
disclosure. The report lists an organizing fibrinopurulent empyema as one of
the causes of death and the other is Bacterial meningitis.
 27

b. Page 297 of the same document is a reference image of an adult who is

having an organizing fibrinopurulent empyema operated on.

c. Page 298 of the same document is a visual guide from a medical text
showing the stages and organizing of Empyema. It shows that an Empyema
at the stage the medical examiner claimed Ezekiel had, would have taken five
to six weeks to grow, while all the evidence in the trial showed Ezekiel was
only sick, off and on, for two weeks.

d. Please refer to Page 2946 lines 19 - 26 of the trial transcripts where Dr

Anny Sauvageau indicates that there is no scientific evidence to support
Bacterial Meningitis.

Dr. Sauvageau

“A So I’m now at 1.3. So I’m aware that you were told that the bacteria in this
case -- I’m aware that you were told that it was a bacterial meningitis caused
by Haemophilus influenzae. My expert opinion is that there is absolutely no
scientific evidence to support that. Once again, check my words. I didn’t say
it’s impossible that it is Haemophilus influenzae. I told you, at the end, no one
will able to tell what it is, but there’s no evidence to support that we can make
this affirmation that it is Haemophilus influenzae. On balance of probability, I
still this it’s enterovirus virus, but let’s look at this assertion. Let’s look at why it
was said that there was evidence.”

e. Please refer to Exhibit “D” of the Affidavit of David Stephan filed on the
13th of Dec 2018 where Dr. Anny Sauvageau breaks down further issues
with the autopsy findings.

f. The conflicting evidence created by the issues with the Autopsy Report
presents further complexity and speaks further to wrongdoing on the part of
state agencies. This complexity poses a significant hardship on the accused
in defending themselves and being provided with a fair trial unless they are
provided the necessary financial assistance.

36. Perjury of crown witnesses. This document and the supporting evidence provides
an abundance of evidence of Crown Witnesses perjuring themselves surrounding
events that could have led to a lung infection (Intubation). There is another event
that Dr. Cunningham was lead away from by the Prosecutor during his testimony that
would explain the Cardiac Arrest suffered by Ezekiel. None of these events were
listed by the medical examiner as a cause of Ezekiel’s Death. Numerous documents
were removed or tampered with that pointed to these alternate scenarios or
contradicted the medical examiners report. This dynamic creates a complexity that
will require a great deal of funding to overcome.

37. Medical investigation needed. The complexities evidenced in this case that are
created by perjuries, falsified reports and other tactics designed to obfuscate facts
 28

and mislead the Court, may only be eliminated by an investigation that is

independent of the state agencies currently involved. We have located several
groups who are willing to work with us on this basis and are at this time seeking
funding to employ them. Without access to such a group of medical investigators
there is little chance of a fair trial.

38. The following is a partial witness list that is being put together for the defense in
the upcoming trial. People on this list were either involved at critical junctures of
Ezekiel’s care, were involved in the coverup, or may have been aware of, or involved
in key aspects of the extremely biased prosecution and have information that will
shed light on the events surrounding the Death of Ezekiel Stephan. In the absence
of a fair and unbiased investigation, and in the presence of prosecutorial misconduct,
and a gross volume of perjury from crown witnesses, the only way a fair trial can be
achieved is to allow a complete uncovering of all the facts and then compare the
testimonies in such a way as to root out the misinformation. The preparation and
complexity of a trial with this number of witnesses and issues is something that a self
litigant could not reasonably be expected to accomplish, nor is it a task that could
reasonably be accomplished under remedies supplied by current case law. Curret
witnesses identified:

a. Clayton Giles
b. Kelly McCoy
c. Cst Kasperski
d. Cst Adam Dell
e. Cst Bullford
f. Doral Lybbert
g. Anthony Stephan
h. Terri Minders
i. RN Court
j. RN Jasperson
k. RN moore
l. Dr. Lloyd Clarke
m. Dr. Alexander Cunningham
n. Dr. Jack Regehr
o. EMS Kenneth Cherniawski
p. Paramedic Lou Labrash
q. EMT Danny Melbine
r. Dr. Naminder Sandu
s. RN Robert Briltz
t. RRT Shewchuk
u. Dr. Bamidele Adeagbo
v. Dr. Anny Sauvageau
w. Karen Pansky - Forensic Technician
x. Dr. Jenn D'Mello, MD FRCPC
y. Barbara Catherine Ross
z. Wilson Chan
aa. Liane Smith C&FS
 29

bb. Sheila Thomson C&FS

cc. Kathy Lyons ACH PICU Social Worker
dd. Laura Herasymuik Social Worker (52308) supported family in the early hours
of March 14. (Useful MR pp 239-242)
ee. Tara Roche
ff. Jackie Barnett OCME
gg. Dr. Neil Cooper - ACH Child Abuse Service Physician
hh. Donna Neary - ACH Child Abuse Service Nurse Clinician
ii. Jennifer Jackson-ACH Child Abuse Service Social Worker
jj. Amanda Latiff - CFSA Manager JICAT
kk. Karley Leadley - CFSA Assessor JICAT
ll. Det. David Palmer -CPS Child Abuse Unit
mm. Det. Sarah Roe -CPS Child Abuse Unit
nn. Michael O'Brian-CFSA Lethbridge
oo. Sean Killans -CFSA Lethbridge
pp. Dean Goerzen - OCME Investigator
qq. Ann Scott - Cardston x-ray technologist
rr. Michael Steed - Cardston x-ray radiologist
ss. Tasha Brocher - signed Patient transfer record AHR p 20
tt. Jennifer Tweten - Lethbridge x-ray technologist
uu. Dick Quon - Lethbridge x-ray radiologist
vv. Jennifer Burdett - RN Calgary
ww. Melissa Perry - RN Calgary
xx. Tanya Lenzi - RN Calgary
yy. Sheila Matkin - Cardston records management
zz. Vijay Moorjani - CT Radiologist ACH
aaa. Tetyana Obukhanych - Immunology Expert WItness
bbb. Dr. Toni Bark - Vaccine, meningitis, and virology expert
ccc. John and Jane Does from Lethbridge Regional Hospital who attended to
Ezekiel (to be determined upon receipt of new evidence or during trial
questioning)

39. Specialty Lawyers we have deduced will be needed to prevent a wrongful conviction
in the next trial. The cost for these lawyers will be extensive. We estimate the legal
work alone to exceed 1.5 million dollars over the next three months.
a. Medical malpractice lawyer
b. Constitutional lawyer
c. Criminal lawyer
d. Lawyer specializing in court procedure and prosecutorial misconduct.
e. Several lawyers or paralegals who will be able to simply perform research and
other administrative tasks.
 30

Imbalance of Power
40. State agencies involved, who control key aspects of authority over proceedings and
evidence, were involved in wrongdoing.

41. Prima facie evidence exists of gross negligence surrounding:

a. disclosure

b. misconduct of public servants affecting the proceedings in favor of the state

c. spoliation and fabrication of evidence

d. the leveraging of information or evidence that the State should have been
aware were the products of crimes

42. The State pursued litigation, in spite of known issues at law. Therefore a fair trial
was not possible and resulted in malicious prosecution that achieved a wrongful
conviction.

Charter Violations

Charter rights violations in this case as evidenced by the Elements section of this document
and materials to be relied on.

43. Section 7 Everyone has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the principles of
fundamental justice.

a. As a point of argument, the accused’s section 7 rights were violated when

they were wrongfully convicted, maliciously prosecuted and subsequently
sentenced and jailed or compelled to house arrest.

44. Section 11(d) Any persons charged with an offence has the right to be presumed
innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal

a. As a point of argument, the elements listed in the above Elements Section

create clear violations during the prior trial and likely the trial at hand over fair
trial charter rights.

45. Section 12 Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment.

a. Mr. Stephan was subjected to 21 days in solitary confinement in prison and

Ms. Stephan was forced to post an unlawful ruling on her social media
accounts and web pages of which she did not own, operate, or have
 31

administrative rights or privileges on and was subjected to house arrest. Had

Ms. Stephan been unable to convince her now jailed husband’s family to post
the unlawful ruling she would have been subject to contempt and possibly
been jailed. This punishment forced an individual to perform a task that would
have been impossible without outside assistance at a threat of further
wrongful punishment.

b. These are clear indications of cruel or unusual punishments.

c. As a point of concern, any person who is subject to more than 15 days of

solitary confinement has endured torture according to a UN special report.
Misinformation levied by crown prosecutors has incited hate against the
Stephan’s, which if they were to be convicted again would result in further
torture as a means to “protect” them from other inmates.

46. Section 15(1) Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.

a. There is Prima Facie evidence to support the fact that, had Alberta Health
Services employees done due diligence in providing the emergency services
they are funded to provide, Ezekiel would have suffered little or no permanent
effects from his emergency. Further to this fact, if it wasn’t Ezekiel who
suffered the result of the AHS negligence, it would have been some other
child at future some point, as they had de-stocked the lifesaving equipment
for children. No charges have been placed against any of the AHS
employees and this speaks to a breach of equal benefit before the law.

47. Section 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have
been infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.

a. Numerous applications and motions were made in court requesting resolution

to issues that amounted to charter breaches. Ultimately they went unsatisfied
which resulted in the wrongful convictions of the accused.

48. Section 24(2) Where, in proceedings under subsection (1), a court concludes that
evidence was obtained in a manner that infringed or denied any rights or freedoms
guaranteed by this Charter, the evidence shall be excluded if it is established that,
having regard to all the circumstances, the admission of it in the proceedings would
bring the administration of justice into disrepute.

a. Justice Jerke noted in paragraph 35 of his ruling over Voluntariness of

statements taken at the Alberta Children’s Hospital, a number of very
concerning facts that spoke to whether or not the Stephan’s had an “operating
mind” at the time the statements were taken. Instead of addressing these
factors he simply moved on and ruled to allow evidence that was proven to be
extremely inaccurate and contain facts that were supplied to them by medical
staff who had a motive to cover-up the medical misadventures that took place.
 32

Section 3: Case Law

R. v Curragh Inc., [1997] 1 S.C.R. 537 (Charter Violation - Section 7)

In R. v Curragh Inc the Supreme Court of Canada awarded costs of the proceedings to date
as well as reasonable legal costs to be incurred in the new trial that was ordered. These
were criminal proceedings and performed outside civil litigation.

The issue of costs was addressed by the majority [Appendix A, pg 8, Para. 13]

(1) The proceedings in the first trial were complex and lengthy. In R. v Curragh Inc
● R v Stephan was complex and lengthy

(2) The new trial will be equally difficult In R. v Curragh Inc

● In R v Stephan the new trial will be infinitely more complex than the first trial due to
the challenges faced by the identified misconduct and required evidentiary burden
resulting from the perjuries and misrepresentations of the Crown and its witnesses.

(3) The appellants have suffered and will continue to suffer from the grievous financial
burden of legal costs. Ordinarily this is something which must be accepted by those charged
with criminal offences. In R. v Curragh Inc this was not the case as a result of proven
wrongdoing by the Crown and the Justice.
● In R v Stephan the prosecutorial misconduct and judicial bias far exceed that found
in R v Curragh

(4) The delays and much of the legal costs incurred arise from systemic problems that were
beyond the control of the appellants In R. v Curragh Inc
● Similarly, in R v Stephan, the Accused were not provided significant volumes of
disclosure until the preliminary trial. The Accused are still at odds with the Crown
over lack of disclosure less than two months before their preliminary trial in the
second trial.

(5) They were to a large extent occasioned by the words and actions of the trial judge which
gave rise to an apprehension of bias. In R. v Curragh Inc
● In R v Stephan we see very similar elements concerning Judicial bias. While the
Justice in R v Stephan may have been more polite, his actions speak volumes to the
issue of Judicial Bias and Misconduct. Please refer to the elements area under
Judicial Bias

(6) This was followed by his refusal to grant the motion for recusal. In these unique
circumstances the appellants should recover their reasonable legal costs of the proceedings
to date. As well they should be paid the reasonable legal costs incurred in the new trial for
which they cannot in any way be held responsible." In R. v Curragh Inc
● In R v Stephan while the Justice was not asked to recuse himself, the Defense
repeatedly complained about issues at law and finally went so far as to feel the need
apply for a mistrial, which was dismissed.

Conclusion
 33

● All of the elements of R. v Curragh Inc. used in the Court’s decision to award costs
are met and exceeded. Please see the points of Judicial Bias in the elements section.
● There are additional circumstances in R v Stephan that go well beyond the scope of
R. v Curragh Inc. as R. v Curragh Inc. only deals with Charter violations of sections
7, 11(d) and 24(1). R. v Stephan deals with multiple counts of 6 different charter
violations and multiple counts of multiple criminal code violations.
● This case supports cost prior and future in criminal proceedings where the elements
are present.

At this point we are looking at a new precedent. The purpose for which common law
was created: to provide a ruling for those circumstances which the written law or
code did not have expression, but was comprehended in its design.

○ Actions of Alberta Justice employees, Alberta Health Services Employees,

and the RCMP that breached the public trust, were illicit in nature, and were
directed at the accused in a manner to subvert the course of justice.
(Please refer to the elements section for a list of some of the wrong doings)

Vancouver (City) v Ward, 2010 SCC 27, [2010] 2 S.C.R. 28

Vancouver v Ward goes one very large step further, in that the Supreme Court upholds
damages in a criminal proceeding as a just and appropriate remedy under subsection 24(1)
when state action has injured an individual. [Appendix A, pg 40 - Case Summary]

For a unanimous court, Supreme Court Chief Justice McLachlin found that damages are a
just and appropriate remedy for a Charter breach when: [Appendix A, pg 43, Para. 4]

● the plaintiff has established a Charter breach;

○ In R v Stephan this has been established by the SCC and further evidenced
in the elements section in this document.
● the damages award is necessary to fulfil one or more of the objects of
compensation, the vindication of the Charter right, or the deterrence of future
Charter breaches;
○ In R v Stephan a clear need for deterrence should allow for punitive damages
to be awarded as a way of preventing a repeat of misconduct in the next trial.
● the state has failed to establish any factors which render section 24(1) damages
inappropriate or unjust in the circumstances (for example, that there are
alternative remedies which fit the circumstances); and
○ The Supreme Court of Canada ruled in favor of the Stephans based on fair
trial charter infringement.
● the quantum of damages equals the purposes of the damages award
(compensation, vindication and/or deterrence).
○ In R v Stephan in addition to the award of damages incurred during the last
trial there may be some additional deterrents required to be imposed upon the
state to prevent further violations to other Canadians or during the upcoming
trial. Specifically, damages to the Stephans far exceed the court cost as it
 34

has drastically affected both Mr. Stephan’s ability to provide for his family as
well as both parents ability to participate socially within society.

Conclusion
Vancouver v Ward speaks to the authority of the Court in criminal proceedings to award
punitive damages against the state in cases where charter breaches are present and clear.

Lizotte v Aviva Insurance Company of Canada, 2016 SCC

52, [2016] 2 S.C.R. 521

Both the Superior Court of Québec and the Québec Court of Appeal held that litigation
privilege cannot be abrogated absent an express provision. The Supreme Court
unanimously dismissed the Syndic’s appeal.[Appendix A, pg 61- Case Summary]

The Supreme Court of Canada identified elements of “Litigation Privilege” as follows:

[Appendix A, pg 61 - Case Summary]

● litigation privilege is to ensure the efficacy of the adversarial process

● litigation privilege is temporary and lapses when the litigation ends
● Litigation privilege applies to unrepresented parties, even where there is no need to
protect access to legal services
● Litigation privilege applies to non‑confidential documents
● Litigation privilege is not directed at communications between solicitors and clients as
such

In addition to reaffirming the fundamental importance of litigation privilege and adopting the
“clear, explicit and unequivocal language” test for statutory abrogation from the solicitor-client
privilege context, the Court in Lizotte also provided significant clarification of the scope of
protection provided by litigation privilege. In particular, the following rulings will have broad
application to litigation privilege claims in Québec and across Canada:

TEST

1. Litigation privilege is a class privilege, meaning that there is a presumption of

protection once it is shown that the conditions of application are met.[10] For litigation
privilege, this means that: [Appendix A, pg 69, Para. 32]

A. the document must have been created for the dominant purpose of litigation;
and whereas;
a. This file was created by the investigative team and David and Collet Stephan
for the purpose of their defense in the appeal to the Supreme Court and any
further resulting legal defense.
b. Litigation Privilege was maintained when the Supreme Court of Canada
ordered a new trial.
 35

c. This file secondarily to its primary purpose was used to inform the authorities
of wrongdoing that occurred during the previous trial. Please refer to
Paragraph 12 of the Response Affidavit filed by David Stephan on the 21 of
December, 2018 and the corresponding Exhibit A, where email
communications between the RCMP and David`s brother Bradford Stephan
discussed some of the crimes that had taken place.

B. The litigation or related litigation is either pending or may reasonably be

apprehended. There is then a presumption of inadmissibility, without any need for a
case-by-case weighing of interests. This protection lapses, however, when the
litigation ends.
a. The Supreme Court ordered a new trial which is a clear indication that
litigation is going to continue

2. Litigation is subject to clearly defined exceptions Deviations from the rule should be
dealt with as clearly defined exceptions rather than as a new balancing exercise each time a
privilege claim is made. [Appendix A, pg 70, Para. 38]

3. Litigation privilege can be asserted against third parties, including third party
investigators who have a duty of confidentiality. [Appendix A, pg 72, Para. 47,48]

A. Although litigation privilege protects a zone of privacy in the context of litigation, it

applies against not only the other party to the litigation. Even where the third party
has an obligation of confidentiality, compelling disclosure would create an
unacceptable risk to the privilege.

a. The RCMP had a responsibility to maintain confidentiality of the files provided

to them in the investigation into Crown wrongdoing.
b. The RCMP evidenced in conversations and digital communications that we
were asking them to investigate the Crown prosecutors office in Lethbridge as
the conversations indicated as much.
c. It is inappropriate for a police investigator to provide confidential information
to an accused who is alleged to be involved in ongoing crimes outside of
disclosure during the accused’s trial. Of note; charges were never placed
against the Crown prosecutors or the witnesses who commited the crimes
complained about by the Stephan’s. This would preclude the RCMP from
providing the Crown with the Stephan’s Defence file.
d. As the defense file disclosure to the police was the product of a separate
investigation, it is inappropriate for it to have turned up in the investigative file
for Ezekiel’s death.

Conclusion - Upon releasing the defence’s files to the Crown that were not a part of the
police investigation into Ezekiel’s death, Litigation Privilege was breached by the RCMP.
These files were given to the RCMP solely as evidence for the separate matter involving
crimes committed by the Crown and it’s witnesses. This blatant breach of litigation privilege
adds complexity, cost and further disadvantages the Accused by way of exposing the fact
that we are aware of the crimes committed and will allow the Crown to leverage our
 36

knowledge to manipulate the court processes against the Accused. This speaks to a further
need for deterrence and increase in the funding required to provide a fair trial.

R. v Stinchcombe, [1991] 3 S.C.R. 326

[Appendix A, pg 79 - Case Summary]

“Held: The appeal should be allowed and a new trial ordered.

The Crown has a legal duty to disclose all relevant information to the defence.
The fruits of the investigation which are in its possession 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. The obligation to disclose is subject to a discretion with respect to the
withholding of information and to the timing and manner of disclosure. Crown counsel has a
duty to respect the rules of privilege and to protect the identity of informers. A discretion
must also be exercised with respect to the relevance of information. The Crown's discretion
is reviewable by the trial judge, who should be guided by the general principle that
information should not be withheld if there is a reasonable possibility that this will impair the
right of the accused to make full answer and defence. The absolute withholding of
information which is relevant to the defence can only be justified on the basis of the
existence of a legal privilege which excludes the information from disclosure. This privilege
is reviewable, however, on the ground that it is not a reasonable limit on the right to make full
answer and defence in a particular case.

Counsel for the accused must bring to the trial judge's attention at the earliest
opportunity any failure of the Crown to comply with its duty to disclose of which counsel
becomes aware. This will enable the trial judge to remedy any prejudice to the accused if
possible and thus avoid a new trial.

Initial disclosure should occur before the accused is called upon to elect the
mode of trial or plead. Subject to the Crown's discretion, all relevant information must be
disclosed, both that which the Crown intends to introduce into evidence and that which it
does not, and whether the evidence is inculpatory or exculpatory. All statements obtained
from persons who have provided relevant information to the authorities should be produced,
even if they are not proposed as Crown witnesses. Where statements are not in existence,
other information such as notes should be produced. If there are no notes, all information in
the prosecution's possession relating to any relevant evidence the person could give should
be supplied.

Crown counsel was not justified in refusing disclosure here on the ground that
the witness was not worthy of credit: whether the witness is credible is for the trial judge to
determine after hearing the evidence. The trial judge ought to have examined the
statements. Since the information withheld might have affected the outcome of the trial, the
failure to disclose impaired the right to make full answer and defence. There should be a
new trial at which the statements are produced.” - quote from the case summary of R. v
Stinchcombe

Partial disclosure has always been a problem. In the previous trial evidence was withheld by
multiple Government Agencies: OCME, THE CROWN, RCMP and ALBERTA HEALTH
 37

SERVICES. (Refer to Section 1(c) of the Elements listed in the Preamble of this Document
for a list of evidence that was withheld.)

1. SOPINKA J. also states in delivering the judgement in R. v Stinchcombe”

“the system will also profit from early disclosure as it will foster the resolution of many
charges without trial,” [Appendix A, pg 86, Para. 2]

And

“While the Crown must err on the side of inclusion, it need not produce what is clearly
irrelevant”. [Appendix A, pg 84, Para. 9]

Given the following information shown in the elements area of this document,

● The huge volume of undisclosed (withheld, undiscovered or destroyed, and

falsified) information,
● Statements that ought to have been taken from key individuals
● Judicial Bias
● Prosecutorial Misconduct
● Crown witnesses committing perjury

a reasonable person would believe that there was no desire on the part of the Crown
to bring forward information in order to resolve the charges or to find information that
would resolve the charges. A reasonable person would say that the goal of the
Crown, the police and the medical system was to pervert the truth and ultimately, the
course of justice, by attaining a wrongful conviction via malicious prosecution.

We are taking the firm position that before we can have a new trial, there must be full
and proper disclosure which to date, has never been provided. This speaks to the
complexities faced by the Accused and the further need for deterrence.

2. SOPINKA J. quotes Boucher v The Queen, [1955] S.C.R. 16

Rand J. states, at pp. 23-24:

“ It cannot be over-emphasized that the purpose of a criminal prosecution

is not to obtain a conviction, it is to lay before a jury what the Crown considers to be
credible evidence relevant to what is alleged to be a crime. Counsel have a duty to
see that all available legal proof of the facts is presented: it should be done firmly
and pressed to its legitimate strength but it must also be done fairly. The role of
prosecutor excludes any notion of winning or losing; his function is a matter of public
duty than which in civil life there can be none charged with greater personal
responsibility. It is to be efficiently performed with an ingrained sense of the dignity,
the seriousness and the justness of judicial proceedings.”

[Appendix A, pg 82, Para. 2]

 38

The obligation of the Crown is to seek out all information that is credible for the
purpose of upholding justice.

In r v Stephan it is suspect that 10 of the individuals directly involved in the events of

this case as it relates to the emergent care of Ezekiel, do not have witness
statements or will says.

Dr. Shauna Burkholder - Pediatric Intensivist ACH, Participated in RAAPID calls,

Receiving Physician at ACH on the night of Ezekiel’s emergency, Expert witness for
the Crown.

Dr. Lundrum - Co Consultant on the RAAPID calls with Doctors and the STARS Team
on the night of Ezekiel’s emergency

Dr. Lloyd Clarke - Attending Physician at Cardston Hospital on the night of Ezekiel’s
emergency, Witness for the Crown

Dr. Alexander Cunningham - Attending Physician at the Cardston Hospital on the

night of Ezekiel’s emergency, Witness for the Crown

Dr. Jack Regehr - Attending Physician and head of Emergency at Lethbridge

Regional Hospital on the night of Ezekiel’s emergency

Dr. Catherine Ross - Head Physician ACH Calgary

Dr. Naminder Sandhu - STARS Team Doctor on the night of Ezekiel’s emergency

Rob Briltz - STARS Team R.N. on the night of Ezekiel’s emergency

Nathan Shewchuk - STARS Team R.R.T. on the night of Ezekiel’s emergency

Lou Labrash - Paramedic. Cardston on the night of Ezekiel’s emergency (was on the
scene from the time of the ambulance on the Highway to the departure of the STARS
Team)

● After having been made aware of the inappropriate and illicit actions of RCMP
and the Crown Prosecutors, it is reasonable to come to the conclusion that
police avoided taking statements from key individuals directly involved in
Ezekiel’s care, in order to avoid having statements of record that would
provide contradictory evidence and opinions that might prove difficult to use in
the Crown attaining a conviction. Please refer to the elements section of this
document.

3. In the case summary of R. v Stinchcombe as quoted above it states

“Initial disclosure should occur before the accused is called upon to elect the mode of
trial or plead” [Appendix A, pg 79, Para. 3]
 39

In the previous trial, the crown failed to provide proper disclosure in a timely manner
and the disclosure they did provide was extremely deficient. Through this entire time,
the defense has repeatedly requested disclosure, as well as made FOIP and ATI
requests from agencies working with the Crown, in order to obtain important
documents. To date, the defence has been largely unsuccessful in obtaining all of the
relevant documents necessary to mount a complete and powerful defence. Up to the
time of this writing, the new trial disclosure is still incomplete.

Conclusion
As we have identified in the elements section of this document, a significant amount of
information that was withheld. Prosecutors have an obligation of disclosure and not to
suppress evidence.

Yet we have Production Orders with missing pages, Medical files with missings pages,
missing recordings and missing x-rays, missing will says and statements. All of these items
are of critical importance. We’re not talking about a few pages, we’re talking about hundreds
of pages of important information. These files contained exculpatory information, in a case
where there was a conviction, and where this information would have reasonably made a
difference as it was contradictory to evidence presented by the Crown.

● The vast majority of missing evidence was referenced in documents available prior to
trial, and should have been included.

● Production files should have been complete. Production orders were manipulated.
Only certain medical files, identified specifically by name were requested, while all
others were omitted from the file. It is only reasonable to believe that the Police were
assisted in this process as they are likely not medical experts with an in depth
knowledge of the names of medical documents.

● RCMP failed to take statements from key individuals involved in this case

● Prosecutors failed even in the most basic duty of making the accused aware of
evidence that was pertinent. In providing disclosure, the Crown Attorneys should err
on the side of inclusion rather than exclusion.

● Prosecutors, Alberta Justice and the collective “Crown Agencies” suppressed

evidence.

● It is difficult for a reasonable person to see how such a monumental quantity of

“unavailable”, “missing” and/or “left out” exculpatory evidence was not included within
disclosure.

● Until a full and complete disclosure is obtained, the defense is forced into a position
where it will not be able to proceed with a fair trial or even an understanding of the
charter notices that would need to be made well in advance of the trial.

In conclusion, the misconduct of the RCMP and Crown Prosecutors have added a gross
complexity and burden of cost to the Accused in their attempt to obtain a fair trial.
 40

Nelles v Ontario [1989] 2 S.C.R. 170 [1989] S.C.J. No. 86

“In the interests of public policy, an absolute immunity for the Attorney General and his
agents, the Crown Attorneys, is not justified. An absolute immunity has the effect of
negating a private right of action and in some cases may bar a remedy under the Canadian
Charter of Rights and Freedoms. As such, the existence of absolute immunity is a threat to
the individual rights of citizens who have been wrongly and maliciously prosecuted. While
the policy considerations in favour of absolute immunity have some merit, these
considerations must give way to the right of a private citizen to seek a remedy when the
prosecutor acts maliciously in fraud of his duties with the result that he causes damage to
the victim.”

“The tort of malicious prosecution requires not only proof of an absence of reasonable and
probable cause for commencing the proceedings but also proof of an improper purpose or
motive, a motive that involves an abuse or perversion of the system of criminal justice for
ends it was not designed to serve and as such incorporates an abuse of the office of the
Attorney General and his agents the Crown Attorneys.” [Appendix A, pg 92, Para. 5]

Of note, Nelles v Ontario also discusses the third element of Malicious prosecution: “the
absence of reasonable and probable cause”. Following are examples of why there was no
reasonable or probable cause for being charged with failing to provide the necessaries of
life. [Appendix A, pg 103, Para. 6]

1. The crown withheld exculpatory evidence, which was demonstrated in elements

section of this document and in the Affidavit of Bradford Stephan filed Dec 12th
2018.
2. The withheld evidence speaks to gross issues in the causes of death listed in the
autopsy report.
3. Collusion between the Crown and Witnesses to facilitate Perjury further speaks to the
issue of any credibility in the Crown’s charge.
4. The cover up of medical information by doctors to obfuscate the actual events that
transpired further speak to the credibility of the medical testimonies.

All of these points go to demonstrate the lack of reasonable and probable grounds for this
charge. I would submit that the Crown was well aware of the issues with their case and
intentionally led witnesses away from those issues, as is evidenced in the elements section
of this document under prosecutorial misconduct.

Conclusion
The Crown participated in collusion with it’s witnesses. To what degree information was
shared between the Crown and Alberta Health Services is unclear. One thing however is for
sure and that is that the Crown Prosecutor was not searching for the truth, but in fact the
opposite.

In leading the witnesses and keeping facts hidden, the Crown Prosecutor was encouraging
deceit, lacking a dignity, a courtesy, a fairness, respect for the law, and integrity.

The misconduct of the Crown in R v Stephan has increased the complexity and challenges
faced by the accused in their pursuit of a fair trial and should be considered when assessing
costs prior, costs future and punitive damages.
 41

R. v McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66

The Canadian Supreme Court specifies that,

1. When the Crown discovers that one of its witnesses has committed perjury, it is
obligated to “take all reasonable steps to find out what had happened and to share
the results of those inquiries with the defence.” The duty to inquire imposed by the
Court in R V McNeil begs the inference that, where perjured testimony is discovered
to have been used by the Crown, the burden is on the Crown to provide an
explanation. [Appendix A, pg 138, Para. 50]

2. Police are not third party in disclosure but are one with the Crown.
[Appendix A, pg 123, Para. 2]

3. Once a court has ascertained upon inspection that third party records are indeed
relevant to the accused’s case, in the sense that they pertain to an issue in the trial,
the second stage balancing exercise is easily performed. In effect, a finding of true
relevance puts the third party records in the same category for disclosure purposes
as the fruits of the investigation against the accused in the hands of the prosecuting
Crown under Stinchcombe. [Appendix A, pg 123, Para. 6]

Conclusion
The crown was not only aware of the perjuries in R v Stephan but also encouraged the
withholding and misleading of the court as evidenced in the elements section of this
document. These actions increase the complexity and hardship faced by the accused and
should be considered in the assessment of costs prior, costs future and punitive damages.

R. v O'Connor, [1995] 4 S.C.R. 411

O’Connor has a 2 step test used for disclosure of documents not provided by the Crown.

1. The applicant must satisfy the judge that the record is likely relevant to the
proceedings against the accused. If so, the judge may order the production solely for
the court's inspection.
2. The judge must then determine, after inspection, what portions of the documents are
to be produced for the defence. [Appendix A, pgs 148-149]

The relevance of this law as it pertains to R. v Stephan is that the defence was deprived of
the opportunity to submit an O’Connor application.

In view of the fact that the disclosure was suppose to include all of the relevant medical files,
reports, etc. If the Crown was not going to use information they had a duty to inform the
defense of the existence of the files they were not going to use that for whatever reason they
felt were not of import.

Conclusion
 42

Since the defense clearly did not have full disclosure in their original trial and were unaware
of what other relevant documents might be available, and in light of the fact that some of
these relevant documents were being withheld, they were deprived of their ability to make an
O’connor application for the previous trial. (Section 7 & 24(1) breach of the Charter)

It was the Crown’s duty to disclose the existence of these files and to provide them. Had this
taken place the exculpatory evidence would have been used and may have resulted in a
dismissal of the charges. As a result this case has been all the way to the Supreme Court of
Canada and has resulted in gross costs and hardship for the Accused. Please consider this
when assessing costs.

Boucher v The Queen. [1955] S.C.R. 16 at 23

"It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a
conviction; it is to lay before a jury what the Crown considers to be credible evidence
relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal
proof of the facts is presented: it should be done firmly and pressed to its legitimate strength,
but it must also be done fairly. The role of prosecutor eludes any notion of winning or losing;
his function is a matter of public duty than which in civil life there can be none charged with
greater personal responsibility. It is to be efficiently performed with an ingrained sense of the
dignity, the seriousness and the justness of judicial proceedings. The achievement of these
ends is our endeavour, these ideals our aspiration. To them we bring, imperfect as our own
human frailty dictates, our intellects, skills and knowledge, an understanding of our fellow
man, a compassion for the weakness of the wrongdoer, and a sympathy for his victim, a
dignity, a courtesy, a fairness, respect for the law, and a fearless courage for what is right –
but above all – integrity. This is our career." [Appendix A, pg 210, Para. 2]

In Boucher v The Queen, Locke J. expressed the following: “It is improper, in my opinion,
for counsel for the Crown to express his opinion as to the guilt or innocence of the accused.”

From this case it is evident that the prosecutor is not the lawyer for the police or for victims or
complainants. The prosecutor is the representative of the "state".
[Appendix A, pg 211, Para. 7]

There are many examples of impropriety on the part of the prosecution. Comments like
“Justice is served” or mocking or laughing or belittling occurred as the Prosecution deviated
from the their sworn duties as outlined in Boucher v R. Please refer to Prosecutorial
Misconduct in the elements section of this document and to the Affidavit of Collet
Stephan filed Dec 13th 2018

Conclusion
The inappropriate actions of Crown Prosecutors speaks to the extreme bias that was
harbored by the Crown. This bias and contemptible actions support an alternative motive
sufficient to meet the 4th element of Malicious Prosecution found in Nelles v Ontario

Quoting this element: d)” malice, or a primary purpose other than that of carrying the law into
effect.”
 43

These actions should be considered when assessing punitive damages.

St. Louis v The Queen. (1896), 25 S.C.R. 649 (S.C.C.)

Spoliation occurs where a party has intentionally destroyed evidence relevant to ongoing or
contemplated litigation in circumstances where a reasonable inference can be drawn that the
evidence was destroyed to affect the litigation. Note that it is a requirement that the
destruction of the evidence be intentional. Spoliation can occur in a number of ways. Items
can be destroyed or disassembled. Documents can be shredded or erased. Modifications
can be made to the evidence. Evidence can be altered or destroyed in order to create other
types of evidence, such as an expert report.

It is clear that spoliation occurred in this case and that there was a reasonable chance for
civil litigation against AHS employees over the medical malpractice that took place.

Spoliation is a tactic used to pervert the course of justice and is more egregious given the
fact that the medical professionals who were involved in pushing for charges were also
connected to the documents that are now missing.

The missing medical files add complexity and cost to the accused in that they were required
to hire investigators to uncover the truth and expose wrongdoing that led to their prosecution.

R. v Ouellette (1980),52 C.C.C. (2d) 336, 111 L.R. (3d) 216, [1980] 1 S.C.R. 568
Pre- Charter decision - Courts can award costs where there is serious misconduct on behalf
of Prosecution. [Appendix A, pg 244, Para. 1]

Quebec (Attorney General) v Cronier (1981),63 C.C.C. (2d) 437,

23 C.R. (3d) 97 (Que. C.A.).

In this case the awarding of costs in a criminal proceeding is acknowledged in a pre-charter

case as being appropriate. [Appendix A, pg 256, Para. 1]

EXAMPLES: COSTS AWARDED IN CRIMINAL CASES

THE FOLLOWING CASES DEMONSTRATE AWARDS FOR DAMAGES IN SITUATIONS

WHERE THE ACCUSED HAS BEEN WRONGED IN A CRIMINAL PROCEEDING. THERE
ARE MANY WAYS OF DETERMINING DAMAGES. THESE CASES ARE QUOTED TO
ASSIST THE COURT IN DETERMINING A STARTING POINT FOR THE AWARDING OF
COSTS.
 44

Carr v Ottawa Police Services Board, 2017 ONSC 4331

• Carr claimed she was unlawfully arrested, strip-searched, detained, and injured at the
hands of the police. The indignity and humiliation of being locked in a cell naked for two
hours warranted Charter damages. Deterrence of similar conduct was a main consideration
of the court.

• Awarded $90,000 general damages, $120,000 loss of earnings, $37,226.84 incurred and
future expenses, and $7,500 in Charter damages (s.7). No punitive damages.

• Note: Although a goal of punitive damages is deterrence, Charter damages satisfactorily

addressed the need for deterrence in this matter.

Elmardy v Toronto Police Services Board, 2017 ONSC 2074

• Elmardy was unlawfully punched, searched, and unnecessarily detained by police. Breach
of Charter rights, namely ss.7, 8, 9, 10, 12, and 15 were at issue.

• Awarded $5,000 for battery, $25,000 for punitives, and $50,000 for Charter damages.

• The Court held that the conduct of the police was violent, high-handed and oppressive.
Declaratory statements in the past intended to deter serious police misconduct had not been
effective, thus Charter damages were needed.

Ogiamien v Ontario 2016 ONSC 3080

• Ogiamien was detained in a maximum-security facility pending a decision from immigration

authorities. Nguyen was detained in the same facility awaiting trial. Due to understaffing, the
facility routinely used restrictive measures to manage inmates. These measures were found
to be in breach of Charter rights (s.12).

• Awarded Charter damages of $60,000 to Ogiamien and $25,000 to Nguyen.

• Note: This decision was successfully appealed on the basis that the restrictive measures
breached Charter rights (cruel and unusual punishment). The quantum of damages was not
at issue.

Henry v British Columbia, 2016 BCSC 1038

• Henry was imprisoned for almost 27 years after being convicted of 10 sexual offences.
Henry alleged that relevant material that would have cast doubt on his guilt was never fully
disclosed, depriving him of a fair trial. The court held Henry’s s.7 and 11(d) Charter rights
were breached.

• Awarded Charter damages of $8,030,000 (the breakdown included $530,000

compensatory and $7,500,000 to serve both the vindication and deterrence functions) and
special damages of $56,691.80.
 45

Khadr Settlement
Khadr’s claims, inter alia, included breach of ss. 7, 8, 9, 10, 12, and 15. In its 2010 decision,
the S.C.C. made a finding that Khadr’s s. 7 rights had been infringed.10 The matter was
settled for $10,500,000 before a court could decide on Charter damages. The strength of
Khadr’s case and quantum of Charter damages continue to be strongly debated topics in the
legal community. 11 The S.C.C.’s acknowledgment of the breach, the length of time detained
since the breach, and the high-handed, oppressive, and malicious conduct of state actors
suggested that this case would have been groundbreaking in assessing quantum in Charter
damages cases.

Section 4: Summation

In the preceding paragraphs we have provided evidence of wrongdoing and bias by the
RCMP, Crown Prosecutors and Judiciary. These evidences do not represent a whole part or
even a majority of the breaches of public trust that took place, nor is it reasonable to think
that they were the product of coincidence. It is reasonable to expect that the same influence
and coordination that existed behind the scenes in the events leading up to, and throughout
the prior trial, still remain intact and will be afoot in the current proceedings and trial.

Case law is clear in addressing the issues and challenges faced by the accused in that they
are unlawful and criminal in nature. The Accused do not have control over the proceedings
and are at a great disadvantage when wrongdoing is present by state agencies who are in
control.

This case evidences a serious issue in the Alberta Courts and the supportive agencies. It
sets at risk the rule of law and if left unresolved will lead to the complete disrepute of the
Courts and Justice System in general.

Given all the factors involved and challenges faced by the accused, it is reasonable to
expect that even with an excess of 4 million in cost awards, the Stephan’s will not be able to
obtain a fair trial in the time allotted. We have searched through volumes of case law and
have not found any that would adequately address the level of corruption, cold and
calculated misconduct or shear volume of misrepresentation. The level of contempt for the
Courts and the Laws of Canada found in this case is previously unknown to the Courts and
is of serious concern to the integrity of society.

As such, we ask the Honorable Court for Costs past, Costs Future and Deterrence.

Respectfully submitted

David Robert Stephan

Co-Accused
 1

APPENDIX A

CASE LAW
Page 3 R V Curragh

Page 38 Vancouver (City) v. Ward

Page 59 Lizotte v. Aviva Insurance Company of Canada

Page 78 R. v. Stinchcombe

Page 91 Nelles v. Ontario

Page 121 R. v. McNeil

Page 143 R. v. O'Connor

Page 205 Boucher v. The Queen

Page 219 St. Louis v The Queen

Page 244 R. v. Ouellette

Page 254 Quebec (Attorney General) v. Cronier

Page 270 Carr v Ottawa Police Services Board

Page 301 Elmardy v Toronto Police Services Board

Page 311 Ogiamien v. Ontario

Page 351 Henry v. British Columbia

Page 429 Canada (Prime Minister) v. Khadr

 2

R V Curragh

CanLII - 1997 CanLII 381 (SCC)

1/6/2019 CanLII - 1997 CanLII 381 (SCC) 3

R. v. Curragh Inc., [1997] 1 SCR 537, 1997 CanLII 381 (SCC)

Date: 1997-03-20
File 25075
number:
Other 144 DLR (4th) 614; 209 NR 252; 159 NSR (2d) 1; 468 APR 1; 113 CCC (3d) 481; 5 CR (5th) 291;
citations: AZ-97111033; [1999] CarswellNS 88; JE 97-660; [1997] SCJ No 33 (QL); [1997] ACS no 33; 34 WCB (2d) 17
Citation: R. v. Curragh Inc., [1997] 1 SCR 537, 1997 CanLII 381 (SCC), <http://canlii.ca/t/1fr2v>, retrieved on 2019-
01-06

R. v. Curragh Inc., [1997] 1 S.C.R. 537

Gerald James Phillips and

Roger James Parry Appellants

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Curragh Inc.

File No.: 25075.

1996: November 26; 1997: March 20.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and
Major JJ.

on appeal from the court of appeal for nova scotia

Criminal law ‑‑ Trial ‑‑ Reasonable apprehension of bias ‑‑ Trial judge making private phone call to
head of public prosecution service asking for removal of lead Crown counsel from case otherwise he would take
steps to “secure that end” ‑‑ Trial judge denying Crown’s motion for recusal and later allowing accused’s
motion for stay of proceedings on manslaughter charges on basis of Crown’s failure to disclose relevant
evidence ‑‑ Whether trial judge’s conduct and words creating reasonable apprehension of bias.

Criminal law ‑‑ Costs ‑‑ Delays and legal costs incurred arising from systemic problems beyond
control of accused ‑‑ Problems largely occasioned by trial judge’s conduct which gave rise to apprehension of
bias ‑‑ Accused should recover their reasonable legal costs of proceedings to date and be paid reasonable legal
costs incurred in new trial.

The trial judge ordered a stay of the manslaughter charges against the accused, two members of the
managerial staff at a coal mine at which an explosion caused the deaths of 26 miners. He based his decision on

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the Crown’s non‑disclosure or late disclosure of relevant material. Earlier during the trial, the judge had called
the acting director of the public prosecution service and expressed his displeasure with the manner in which the
Crown attorney was conducting the case. The trial judge recommended that he be removed from the case and
said that if he were not he would take steps “to secure that end”. The Crown, supported by one of the accused,
brought a motion for recusal, which the trial judge denied. The Crown sought unsuccessfully to appeal this
interlocutory decision. That having failed, the trial continued until the trial judge entered a stay of proceedings
due to the Crown’s failure to disclose material information. The Crown raised the issue again in its appeal of
the trial judge’s order staying the proceedings. The Court of Appeal disagreed with the trial judge’s conclusion
that the material non-disclosure should result in a stay, found that there was a reasonable apprehension of bias
and ordered a new trial.

Held (McLachlin and Major JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ.: Prior to the order
staying the proceedings, the trial judge’s actions and words during the trial created a reasonable apprehension of
bias. In privately phoning a senior member of the Attorney General’s staff to request the removal of the Crown
attorney in charge of the case and stating that otherwise he would take steps “to secure that end”, the trial judge
interfered with the Crown’s conduct of its case and became inappropriately involved in the fray. He should have
recused himself, but denied the Crown’s motion for recusal. Where a reasonable apprehension of bias is
demonstrated, the trial judge has no further jurisdiction in the proceedings and the only appropriate remedy is a
new trial. Generally the decision reached and the orders made in the course of a trial that is found by a court of
appeal to be unfair as a result of bias are void and unenforceable. While the trial judge’s order staying the
charges in this case was enforceable until the court of appeal dealt with it, once the court of appeal ruled that the
trial judge had demonstrated a reasonable apprehension of bias it retroactively rendered the order void and
without effect. The Crown brought its motion for recusal in a timely, appropriate and reasonable manner and
cannot be faulted on that score.

The accused should recover their reasonable legal costs of the proceedings to date and be paid the
reasonable legal costs incurred in the new trial since the delays and much of the costs incurred arise from
systemic problems beyond their control that were to a large extent occasioned by the conduct of the trial judge
which gave rise to an apprehension of bias.

Per Sopinka J.: While the breach of the Crown’s obligation to disclose was egregious, a stay is not
the only appropriate remedy in the circumstances. Assuming that the trial judge was not functus, one of the
circumstances that he did not take into account is the fact that there must be a new trial by reason of the
apprehension of bias occasioned by his conduct. The trial judge may be satisfied that full disclosure has been
made prior to the commencement of the new trial. While the trial judge proceeded on the basis that, absent a
stay, the trial would continue, this Court must decide whether a stay is the only appropriate remedy having
regard for the fact that a new trial will otherwise be held. Consequently, it is impossible to say what, if any,
prejudice has been caused by the non‑disclosure, or whether full disclosure will have been made prior to the
commencement of the new trial. The order directing a new trial should be affirmed.

Per McLachlin and Major JJ. (dissenting): While as a general rule a judge should not discuss a case
with one party outside the other party’s presence, much less suggest to one party in the other’s absence who
counsel on the case should be, a conclusion of bias does not flow automatically from breach of this rule. The
question is whether the content of the discussion in all the surrounding circumstances supports an inference that
the trial judge favoured one party over the other. In this case Crown counsel’s conduct was prejudicing a fair
trial and might ultimately have caused the trial to be aborted. While the trial judge should not have stipulated
that he be removed, it is questionable whether his doing so indicated partiality to either the Crown or the
defence. Moreover, even if the inference could be drawn that the trial judge was biased against the Crown, it
does not follow that he automatically lost jurisdiction. Judicial conduct giving rise to a reasonable apprehension
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of bias does not automatically deprive the judge of jurisdiction and render all proceedings thereafter void. The
proper course for a party affected by the bias is to move promptly for recusal of the judge. Absent an order
disqualifying the judge, the judge retains jurisdiction and the proceedings continue as before. While the issue
has not often arisen in criminal proceedings, the authorities support the view that bias or apprehension of bias
does not automatically render the trial a nullity. This flows from the general principle that a court order must be
obeyed until there is an order to the contrary. It follows that the trial judge in the present case retained
jurisdiction after the telephone call alleged to give rise to an apprehension of bias against the Crown. This
jurisdiction continued through the recusal motion and after its dismissal. The subsequent decisions of the judge
were voidable, not void. Moreover, even if the trial judge lost jurisdiction by not recusing himself from the trial,
it is open to this Court, in the interest of justice, to examine the circumstances of the proceedings and to enter a
stay if that is the result required.

What occurred in this case was an abuse of process. While the trial judge believed that the
non‑disclosed evidence was material to the ability of the accused to make full answer and defence, the entire
conduct of the trial has brought the administration of justice into disrepute and in the process violated s. 7 of the
Canadian Charter of Rights and Freedoms. Throughout the proceedings the Crown bent and broke rules, and
attempted to cover up when it was caught. The Crown actively misled the court on a number of occasions, and
ignored or failed to obey court orders. The conduct of Crown counsel at the trial violates the fundamental
principles that underlie the community’s sense of fair play and decency and constitutes an abuse of the court’s
process.

The trial judge was correct in determining that the only remedy for the conduct of the Crown in this
case was a stay of proceedings. While a stay of proceedings is a last resort, only to be entered in the clearest of
cases, the trial judge directed himself to consider other remedies, including the exclusion of evidence, an
adjournment, or a mistrial. Throughout the pre‑trial process and the trial itself, the trial judge utilized numerous
remedies to ensure that the Crown was complying with its obligations, but none was effective. The trial judge
granted a stay as a remedy for the prejudicial effect of the Crown’s non‑disclosures on the right of the accused to
make full answer and defence. A stay should also be granted as a remedy for Crown conduct that was an abuse
of process bringing the administration of justice into disrepute.

Cases Cited

By La Forest and Cory JJ.

Referred to: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public

Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623.

By McLachlin and Major JJ. (dissenting)

R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v. Livingstone (1990), 1990
CanLII 10960 (BC SC), 57 C.C.C. (3d) 449; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v.
Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451; R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R.
727; Canada (Canadian Human Rights Commission) v. Taylor, 1987 CanLII 5390 (FCA), [1987] 3 F.C. 593,
aff’d 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892; Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2)
(1974), 1974 CanLII 835 (ON SC), 4 O.R. (2d) 585; Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2
S.C.R. 709; R. v. Pastro (1988), 1988 CanLII 214 (SK CA), 66 Sask. R. 241; R. v. Smith (1995), 1995 ABCA
299 (CanLII), 31 Alta. L.R. (3d) 227; United States v. Daley, 564 F.2d 645 (1977), certiorari denied 435 U.S.
933 (1979); Smith v. Danyo, 441 F.Supp. 171 (1977), aff’d 585 F.2d 83 (1978); In re Martin‑Trigona, 573
F.Supp. 1237 (1983), aff’d 770 F.2d 157 (1985); R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v.
Young (1984), 1984 CanLII 2145 (ON CA), 46 O.R. (2d) 520.

Statutes and Regulations Cited

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Canadian Charter of Rights and Freedoms, ss. 7, 11(b), (d), 24(1).

Coal Mines Regulation Act, R.S.N.S. 1989, c. 73.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 220, 236, 587(1)(f), (g).

Occupational Health and Safety Act, R.S.N.S. 1989, c. 320.

Public Inquiries Act, R.S.N.S. 1989, c. 372.

Authors Cited

McWilliams, Peter K. Canadian Criminal Evidence, 3rd ed. Aurora, Ont.: Canada Law Book, 1988 (loose‑leaf
updated October 1996, release 17).

Stuesser, Lee. “Abuse of Process: The Need to Reconsider” (1994), 29 C.R. (4th) 92.

APPEAL from a judgment of the Nova Scotia Court of Appeal (1995), 1995 CanLII 4182 (NS CA),
146 N.S.R. (2d) 161, 422 A.P.R. 161, 44 C.R. (4th) 274, allowing the Crown’s appeal from an order of Anderson
J. (1995), 146 N.S.R. (2d) 163, 422 A.P.R. 163, granting a stay of proceedings, and ordering a new trial. Appeal
dismissed, McLachlin and Major JJ. dissenting.

Gordon R. Kelly and N. Kent Clarke, for the appellant Phillips.

Frank E. DeMont and John A. McKinlay, for the appellant Parry.

Craig M. Garson, G. Arthur Theuerkauf and Andrew S. Macdonald, for the respondent.

//La Forest and Cory JJ.//

The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. was
delivered by

1 LA FOREST AND CORY JJ. -- On June 9, 1995, the trial judge ordered that the manslaughter
charges brought against the appellants be stayed. He based his decision upon the failure of the Crown in some
instances to disclose relevant material and in others its tardiness in disclosing material: (1995), 146 N.S.R. (2d)
163, 422 A.P.R. 163. The Court of Appeal for Nova Scotia set aside the stay and directed a new trial: (1995),
1995 CanLII 4182 (NS CA), 146 N.S.R. (2d) 161, 422 A.P.R. 161, 44 C.R. (4th) 274. The appellants have
appealed that decision.

2 The respondent Crown alleges that prior to making the order staying the proceedings, the actions
and words of the trial judge revealed actual bias. Although that may be correct, it is not necessary to consider
the issue since it is clear that they certainly created a reasonable apprehension of bias.

3 In July 1994, before the trial commenced, the trial judge made a phone call to a senior member of
the staff of the Attorney General. Disturbing as it was the call in itself did not create an apprehension of bias.
However, on March 2, 1995, when the trial was well under way, the judge again called the senior member of
staff. To make such a call during the trial was, to say the least, unfortunate if not ill advised. It was sufficient in

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itself to raise the issue of apprehension of bias. Further, the words of the trial judge during this conversation
confirmed that there was a reasonable apprehension of bias. He expressed his displeasure with the manner in
which the Crown attorney was conducting the case. The trial judge recommended that he be removed from the
case and if he were not he would take steps “to secure that end”. He thereby interfered with the Crown’s
conduct of its case, and so became inappropriately involved in the fray.

4 The Crown, supported by one of the appellants, brought a motion for recusal. The trial judge
should have recused himself, but he denied the motion. It is sufficient to observe that the Crown sought
unsuccessfully to appeal this interlocutory decision. The Crown did not waive its rights to raise the issue later
and quite properly did so in its appeal of the order of the trial judge staying the action. The Court of Appeal
unanimously found that there was a reasonable apprehension of bias and ordered a new trial. We agree with this
conclusion.

5 The properly drawn conclusion that there is a reasonable apprehension of bias will ordinarily lead
inexorably to the decision that a new trial must be held. In circumstances where reasonable apprehension of bias
is demonstrated the trial judge has no further jurisdiction in the proceedings and there is no alternative to a new
trial.

6 The significance of a reasonable apprehension of bias was considered by this Court in

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84
(SCC), [1992] 1 S.C.R. 623, at p. 645:

As I have stated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable
apprehension of bias has been established. If there has been a denial of a right to a fair hearing it
cannot be cured by the tribunal’s subsequent decision. A decision of a tribunal which denied the
parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent
decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal.
The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent
order resulting from it, is void. [Emphasis added.]

If that be true of a proceeding before an administrative tribunal it must apply with even greater force to a
criminal trial.

7 The right to a trial before an impartial judge is of fundamental importance to our system of
justice. Should it be concluded by an appellate court that the words or actions of a trial judge have exhibited
bias or demonstrated a reasonable apprehension of bias then a basic right has been breached and the exhibited
bias renders the trial unfair. Generally the decision reached and the orders made in the course of a trial that is
found by a court of appeal to be unfair as a result of bias are void and unenforceable.

8 Certainly, every order of a trial court is enforceable and must be obeyed until it is declared void by
an appellate court. In this sense the order may be viewed as voidable. However, when a court of appeal
determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that finding
retroactively renders all the decisions and orders made during the trial void and without effect.
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9 In the case at bar, the court of appeal correctly found the trial to be unfair as a result of the
demonstrated apprehension of bias. The order of the trial judge staying the charges was void. It was made in
the course of the trial after the impugned telephone call which clearly rendered the trial unfair. The order of the
trial judge was enforceable until the court of appeal dealt with it. However there can be no doubt that once the
court of appeal ruled that the trial judge had demonstrated a reasonable apprehension of bias it retroactively
rendered void and without effect the order staying the charges.

10 The Court of Appeal properly found that the trial judge ought to have recused himself when the
motion was brought before him. Whether he might have had authority to grant a stay after the unfortunate
phone call was made is not in issue. Whatever authority he may have had was retroactively removed by the
finding that he had exhibited a reasonable apprehension of bias. The only appropriate remedy in this case is to
order a new trial.

11 Our colleagues contend that allegations of bias should be made in a timely fashion and cite
American cases for this proposition. We accept that in order to maintain the integrity of the court’s authority
such allegations must, as a general rule, be brought forward as soon as it is reasonably possible to do so.
However, in this case, the Crown took the courageous position of moving to have the trial judge recuse himself
within five days of his demonstration of bias or at least the reasonable apprehension of bias. Thus it moved in a
timely, appropriate and reasonable manner. The Crown certainly cannot be faulted on that score.

12 It is important that a new trial be held, and as a result as little as possible should be said regarding
the issues that may arise or the evidence. Like our colleagues Justices McLachlin and Major, we have carefully
considered the facts. We refrain from commenting upon them. We do this so that the judge presiding at the new
trial is not inhibited in any way in dealing with any of the issues that may arise. Particularly the trial judge
should not be inhibited either by our colleagues’ views of the evidence and issues or by ours, which could well
be different. At the new trial, both the Crown and the defence can take whatever steps and raise whatever issues
they consider appropriate. The trial of these accused like all who face criminal charges should be fair and be
perceived to be fair. To achieve this goal the issues raised at the new trial and the facts upon which they rest
must be determined by a judge who is not only impartial but is seen by all to be impartial. This is clearly in the
best interests of the accused and the community.

13 It only remains to resolve the issue as to costs. The proceedings in the first trial were complex and
lengthy. The new trial will be equally difficult. The appellants have suffered and will continue to suffer from
the grievous financial burden of legal costs. Ordinarily this is something which must be accepted by those
charged with criminal offences. Yet, in this case the delays and much of the legal costs incurred arise from
systemic problems that were beyond the control of the appellants. They were to a large extent occasioned by the
words and actions of the trial judge which gave rise to an apprehension of bias. This was followed by his refusal
to grant the motion for recusal. In these unique circumstances the appellants should recover their reasonable
legal costs of the proceedings to date. As well they should be paid the reasonable legal costs incurred in the new
trial for which they cannot in any way be held responsible.

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14 In the result, subject to the direction regarding costs, the appeal is dismissed and the order directing
the new trial is confirmed.

//Sopinka J.//

The following are the reasons delivered by

15 SOPINKA J. -- I have read the reasons of La Forest and Cory JJ. and of McLachlin and Major JJ.
and agree with the disposition of this appeal proposed by La Forest and Cory JJ. Although I agree with
McLachlin and Major JJ. that the breach of the crown’s obligation to disclose was egregious, I cannot say that in
the circumstances a stay is the only appropriate remedy.

16 Assuming that McLachlin and Major JJ. are right that the trial judge was not functus, one of the
circumstances that the trial judge did not take into account that must be considered is the fact that, independently
of the issue of a stay for non-disclosure, there must be a new trial by reason of the apprehension of bias
occasioned by the conduct of the trial judge. In view of this fact, I cannot say what prejudice has been caused by
the non-disclosure. Certainly, the situation would be different if the original trial were to proceed. Witnesses
would have been called and cross-examined by the appellants without the benefit of full disclosure. If these
witnesses are called at the new trial, the appellants will have the benefit of not only the matters disclosed to date
but any additional material that may be disclosed prior to the commencement of the new trial. Indeed, it may
transpire that before that time, the trial judge will be satisfied that full disclosure has been made.

17 Quite apart from whether the trial judge was functus, I do not see how we can uphold the decision
of the trial judge who granted the stay, given the fact that in considering the crucial issue of whether a stay was
the only remedy, he proceeded on the basis that, absent a stay, the trial would continue. We cannot do so. We
must decide whether a stay is the only appropriate remedy having regard for the fact that a new trial will
otherwise be held. While this Court has the jurisdiction to make the order that was appropriate and we could
impose a stay, by reason of the circumstances referred to above we are not in a position to say what, if any,
prejudice has been caused nor whether full disclosure will have been made prior to the commencement of the
new trial.

18 I would dispose of the appeal as proposed by La Forest and Cory JJ.

//McLachlin and Major JJ.//

The following are the reasons delivered by

19 MCLACHLIN AND MAJOR JJ. (dissenting) -- On May 9, 1992 an explosion at the Westray Coal
Mine in Plymouth, Nova Scotia caused the deaths of 26 miners. Immediately, a search began for the cause of
this tragedy.

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20 Charges were brought in the present case against Messrs. Phillips and Parry, two of the mine’s
managerial staff, in an attempt to affix blame on them for the explosion and deaths. The trial, however, was
halted in mid‑course by a decision of the trial judge to stay the proceedings. This decision flowed from his
finding that the prosecution had conducted the proceedings in such a way as to deny the accused their right to a
fair trial.

21 While society demands to know the cause of the events at Westray, it does not demand the sacrifice
of the standard of fairness our society accords to a person accused of committing a crime. The history of the
proceedings against Roger James Parry and Gerald James Phillips creates the impression of a prosecution
seemingly prepared to obtain a conviction at all costs. A detailed examination of the facts is necessary to ensure
this impression is supported by evidence.

Factual and Procedural Background

22 To appreciate the complicated background and procedural activity that occurred throughout the
course of this case it is helpful to follow a time line. Everything in the sequence has relevance to the trial
judge’s final decision to enter a stay of proceedings.

23 May 9, 1992 -‑ the fatal explosion at the Westray Coal Mine occurred.

24 May 11, 1992 -‑ the Department of Labour of Nova Scotia took control of the mine and initiated
the first of three separate governmental investigations. Harry Murphy, an ex‑RCMP officer, led the investigation
for the Department of Labour.

25 May 15, 1992 -‑ the Westray Mine Public Inquiry was initiated. Justice K. Peter Richard was
appointed Commissioner under the Public Inquiries Act, R.S.N.S. 1989, c. 372, and Special Examiner under the
Coal Mines Regulation Act, R.S.N.S. 1989, c. 73.

26 May 21, 1992 -‑ the Royal Canadian Mounted Police (the “RCMP”) began their investigation. In
the course of the investigation, the RCMP made application for, and obtained, 18 search warrants, including
warrants for the offices of Westray Coal at the mine site, the underground mine site, the offices of the Westray
Mine Public Inquiry, and the offices of Curragh Inc. in Toronto. Staff Sergeant Ches MacDonald was named
officer in charge of the RCMP investigation.

27 The existence of three separate inquiries initiated into this matter was a cause, but not the only
cause, of the problems which took place in the criminal trial. It was difficult enough that the case ultimately
required the introduction into evidence of an estimated half million pages of documents. Added to the bulk of
the documents was the movement of them between multiple places and the numerous reproductions this
entailed.

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28 May 25, 1992 -‑ the Commissioner of the Public Inquiry issued an order requiring Curragh
Resources Inc., the Government of Nova Scotia and the Government of Canada to deliver to the Commission of
Inquiry all documents, records and files that might have relevance.

29 Almost a year later, on April 2, 1993, the Commissioner ordered that all documents, records, files,
statements, and other information or evidence obtained by the Commission was to be held in confidence by the
Commission staff and that such evidence could not be released or made available to any person other than
Commission staff, except upon a further order of the Commissioner. This may have been helpful for the
Commission’s purposes, but it hampered the document management in the criminal prosecutions.

30 October 5, 1992 -‑ the appellants and others were charged with 52 offences under the Occupational
Health and Safety Act, R.S.N.S. 1989, c. 320 (the “OHSA”), a provincial statute. These charges arose out of the
Department of Labour investigation and were laid by the Attorney General and prosecuted by the Public
Prosecution Service.

31 October 21, 1992 -‑ defence counsel for Mr. Phillips made his first request for full and complete
disclosure. A letter was sent to John Pearson, Director of Public Prosecutions, the lead prosecutor for the
offences under the OHSA, extensively detailing all the types of disclosure required. This was the first in a series
of requests for full disclosure made by defence counsel. These requests continued throughout the course of this
case and were never fully complied with.

32 November 23, 1992 -‑ counsel for Mr. Phillips objected to the limited form of disclosure provided
in response to the first request and sent another letter reiterating the request for full and complete disclosure.

33 November 30, 1992 ‑- Mr. Pearson made an application for an adjournment of the arraignment of
the appellants on the charges under the OHSA and the taking of a plea which had been set for December 10,
1992. In his application, he indicated that both the Department of Labour and the RCMP were conducting
investigations, the RCMP investigation being of offences under the Criminal Code. Pearson indicated that the
investigation by the RCMP and the basis for the charges under the OHSA were basically the same. He stated, in
written material filed supporting his application, that:

. . . the defendants are entitled to disclosure prior to plea. The defendants have requested disclosure
of all information gathered by the R.C.M.P. during the criminal investigation. Adjourning the taking
of a plea until after the criminal investigation is complete will avoid the possibility that disclosure at
this time might prejudice the police investigation and will ensure that the defendants receive full
disclosure prior to entering their plea.

What we take from Mr. Pearson’s submission is that since the appellants were entitled to full disclosure before
making a plea in response to the charges under the OHSA, he wanted to delay the taking of that plea until all of
the evidence had been gathered with respect to the criminal investigation. We fail to understand Mr. Pearson’s
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concern. The police were investigating the same events that formed the basis of the charges under the OHSA.
How could disclosure of information they gathered possibly “prejudice” that police investigation? If Mr.
Pearson was concerned that not all of the information had been gathered in relation to the charges, it raises the
question of why the charges were laid at the time.

34 On the same day in November of 1992, the appellants and their co‑accused requested disclosure of
all information gathered by the RCMP during their criminal investigation. As well, they requested disclosure of
all documents pertaining to the Westray Coal Mine, and files of the provincial Department of Labour, Natural
Resources and Economic Development. Mr. Pearson replied to them by letter on November 30, 1992, stating
that all documents from all provincial departments were now in the hands of the Westray Public Inquiry.
Counsel for Mr. Phillips continued in his attempt to obtain disclosure, writing again on December 10, 1992 and
January 21, 1993.

35 February 11, 1993 ‑- the application by the Crown to adjourn the arraignment and take a plea for
the charges under the OHSA was denied, and 34 of the 52 charges were stayed by order of Judge Clyde F.
MacDonald of the Provincial Court. The Crown was ordered to provide particulars of how the offences were
alleged to have been committed in relation to several of the remaining charges to which not guilty pleas had
been entered. With respect to disclosure, Judge MacDonald stated:

Failure by the Crown to comply with full disclosure (where lack of proper disclosure denies the
accused of [sic] the ability to have a fair trial) may lead to the trial judge entering a stay of
proceedings of the charge, which is tantamount to an acquittal.

36 March 3, 1993 ‑- Mr. Pearson advised Judge MacDonald that the Crown was staying the remaining
charges under the OHSA, this being some 10 months after the explosion. He expressed concern that proceeding
with the provincial charges might jeopardize the Crown’s ability to bring charges under the Criminal Code.

37 April 20, 1993 -‑ eleven and a half months after the fatal explosion, the appellants were charged
with the offence of manslaughter contrary to s. 236 of the Criminal Code, R.S.C., 1985, c. C‑46, and of criminal
negligence causing death, contrary to s. 220 of the Criminal Code. Senior Crown Attorney Herman C. Felderhof
was the lead prosecutor for these charges.

38 Counsel for Mr. Phillips made an application to quash the charges on the ground of insufficient
particulars on the same day.

39 July 20, 1993 ‑- the appellant Phillips’ application was granted by the Honourable Judge Patrick H.
Curran of the Provincial Court and both charges were quashed. The judge held:

The information, and for that matter the crown’s brief, implies that various things happened (or
didn’t happen) over an eight month period which, taken together, constituted the offence. The
information altogether fails to give any indication what any of those things might be.

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The crown’s brief implies that the prosecution already knows the bases on which the counts
allegedly rest. One would hope that would be the case. The brief goes on to imply that the accused
and the court will come to know those bases all in good time, whether as a result of disclosure,
particulars or evidence on a preliminary inquiry or trial. That is simply not good enough. The
accused are entitled to know those bases before being put to their election.

40 July 23, 1993 ‑- fourteen and a half months after the fatal explosion, new charges were laid against
the appellants, charging violations of the same sections of the Criminal Code. The appellants made an
application to Judge Curran to quash the new charges and his decision was reserved.

41 October 26, 1993 -‑ Judge Curran dismissed the application to quash. The appellants pled not
guilty to the charges and a preliminary inquiry was set for March 1994.

42 November 12, 1993 -‑ counsel for Mr. Phillips wrote to the Senior Crown Attorney, Mr. Felderhof,
requesting full and complete disclosure with respect to these newest charges against the appellant. The letter
contained the following paragraph:

We hereby request on behalf of Mr. Phillips full and complete disclosure by the Crown in
accordance with the principles laid down by the Supreme Court of Canada in Stinchcombe v. The
Queen and the Policy Directive on Disclosure issued by the Attorney General of the Province of
Nova Scotia.

43 December 10, 1993 ‑- the response to the November 12 letter did not satisfy the defence and
counsel for Mr. Phillips wrote to Mr. Felderhof again requesting full disclosure. The letter contained the
following paragraph:

As it appears the Crown’s position is that the Preliminary Inquiry should proceed as scheduled we
must insist on behalf of Mr. Phillips that we now have full and complete disclosure by the Crown in
accordance with the principals [sic] laid down by the Supreme Court of Canada in the Stinchcombe
v. The Queen and the Policy Directive on Disclosure issued by the Attorney General of the Province
of Nova Scotia. We have approximately three (3) months to prepare for the Preliminary Inquiry
which the Crown estimates will take three to four (3‑4) months. Anything less than full disclosure at
this time will prejudice Mr. Phillips’ defence.

44 May 18, 1994 ‑- the Crown, two years after the explosion, made the important decision to proceed
by preferred indictment, thereby avoiding a preliminary inquiry. It is apparent that proceeding by preferred
indictment and denying the accused the benefit of a preliminary inquiry increases the need for disclosure. This
increased need for disclosure appeared to have little effect on the Crown.

45 June 16, 1994 ‑- the appellants in response to the direct indictment entered a plea of not guilty to
all charges, and elected to proceed to trial before a judge alone. At the election appearance, counsel for Mr.
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Phillips again raised the issue of disclosure with Senior Crown Counsel Mr. Felderhof.

46 July 5, 1994 ‑- a pre‑trial conference was held by the Honourable Justice A. David MacAdam (not
the trial judge) in the presence of counsel for each party. The use of case management techniques for the
conduct of the trial was discussed. Justice MacAdam recommended that, separate from the actual trial, there be
conducted “a series of case management type meetings for the purpose of dealing with the volumes of potential
documentary evidence, including proof of authenticity, and with the number of possible expert witnesses”.
These meetings would have been held by a judge other than the trial judge, in order to facilitate the production
of evidence and hopefully prevent the actual trial from becoming bogged down with disputes over evidence.

47 July 6, 1994 ‑- Mr. Felderhof rejected case management and wrote to Justice MacAdam:

Upon considerable reflection, it is my opinion, with the greatest respect, that this approach could
impinge on prosecutorial discretion as to the mode of presenting its case.

...

There is a great deal of public interest in this proceeding; in particular by the Westray Family
Group. Given this situation, it is the Crown’s preference that all conferences be recorded. Public
perception is of major concern to the Crown.

48 July 8, 1994 -‑ Justice MacAdam replied to Mr. Felderhof and copied the letter to counsel for the
defence. He explained that, given the Crown’s position, he had recommended to Chief Justice Glube that the use
of case management techniques would not be practical.

49 July 13, 1994 -‑ Chief Justice Glube wrote to Mr. Felderhof’s superior, Mr. Martin E. Hersc
[TRADUCTION horn, Q.C., Deputy Director of Public Prosecutions. This letter was disclosed at trial but had
not been copied to the defence at the time of its writing. The letter stated, in part:

It is most unfortunate that Mr. Felderhof feels that case management in a six month trial with a judge
other than a trial judge is not appropriate. The Court is not looking to try to resolve this matter, but
they are trying to make sure that the case proceeds in an orderly fashion. I really have difficulty
with Mr. Felderhof’s position on this, since what was being attempted was to ensure that the case
proceeds with all due dispatch. I do not know about the prosecution and the defence, but certainly
from the administration of justice and the efficient use of judges’ time, it is important that trials
progress in an orderly fashion as quickly as possible.

...

I doubt that we will see any reversal of Mr. Felderhof’s position considering his letter of July
6th, but I did feel it important to let you know that we are certainly very disappointed in the
outcome.

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50 Chief Justice Glube’s disappointment with the prosecution’s position was prophetic. The trial
became an endless dispute over the Crown’s obligation to disclose. The prosecution, always reluctant, seemed
to be trying to disclose as little as possible to the defence.

51 September 6, 1994 -‑ as the Crown had rejected case management, the first of a series of pre‑trial
conferences with the trial judge Mr. Justice Anderson began. There were eight conferences, during which the
Crown refused written defence requests for certain disclosures on the basis that they would “fetter Crown
discretion”. Crown Prosecutor Felderhof took the position in a brief that “[i]t is the Crown position that it has
provided all disclosure it is legally obligated to provide”. This was a position the Crown would return to
frequently.

52 As a result of the Crown’s reluctance to disclose, it was necessary for the trial judge to specifically
order disclosure of:

(1) the Crown’s intended witnesses (ordered September 2, 1994),

(2) the order in which these witnesses (exceeding 200 in number) would be called (ordered December 2,
1994),

(3) a list of all the exhibits to be tendered by the Crown (ordered September 27, 1994), and

(4) all Crown expert reports by November 15, 1994 (ordered October 18, 1994).

53 January 18, 1995 ‑- counsel for Mr. Phillips wrote to G. Arthur Theuerkauf, Assistant Crown
Prosecutor and a member of the prosecution team, with respect to Crown disclosure. The letter stated:

As you know throughout the pre‑trial period of this case, we, on behalf of Mr. Phillips, have on
numerous occasions asked for full disclosure of all relevant material in the possession of the Crown.
You have on file previous requests in writing from us asking for same. This is consistent, as well,
with the position that we have taken in pre‑trial conferences.

We are greatly concerned that there is still a large volume of relevant material in the Crown’s
possession which has still not been disclosed to the defence. As you know, tomorrow we intend to
meet with Sgt. MacDonald in Truro to review the material being stored at the Truro Detachment in
an attempt to discover if such material has been deposited there.

Particularly, we are concerned that the Crown has still not disclosed material compiled by the
Department of Labour concerning the mine and the May 9th explosion. We take the position that the
Crown is singular and as part of the Crown’s obligation to disclose, any information in the
Department’s possession must also be disclosed.

54 January 30, 1995 ‑- for the first time, defence counsel received notice from the team of Crown
Attorneys that they did not agree “that the Crown is singular” and accordingly that the files of the Department of
Labour were not, for the purposes of disclosure, in the possession of the Public Prosecution Service.

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55 February 1, 1995 ‑- the Crown disclosed 17 new files of documents which they represented had
been in their possession for at least two years and about which they had unilaterally made a decision that there
would be no disclosure. These files were later subject to an order by the trial judge on February 27, 1995.

56 February 6, 1995 ‑- the trial commenced before Anderson J.

57 February 13, 1995 -‑ the trial judge ordered the Crown to disclose police officers’ notes that had
been in the possession of investigating officers and not previously disclosed. A banker’s box of files was
delivered to defence counsel shortly thereafter.

58 February 27, 1995 ‑- the trial judge directed the Crown to give five days’ notice of the specific
exhibits to be referred to each witness, excluding some obvious physical exhibits, photographs and diagrams.
Counsel for the appellants had been seeking this disclosure for six months, having written for it on July 26,
1994. Despite the Court’s order, the prosecution was slow in giving notice and this behaviour continued until
the day the trial was halted.

59 Also on February 27, 1995, the trial judge ordered that the 17 files disclosed to the defence on
February 1, 1995, which contained material deliberately withheld by the Crown for two years, be excluded from
use by the Crown. He further ordered that any other material not disclosed by February 10, 1995 was excluded
for use by the Crown without leave. The trial judge’s order contained the following:

IT IS ORDERED that pursuant to Section 24(1) of the Charter of Rights and Freedoms all
material disclosed by the Crown to counsel for the Defendants on February 1, 1995, being, Q&A
[document index] files 13‑042 to and including 13‑057, shall be and are hereby excluded from use
by the Crown in this proceeding.

IT IS FURTHER ORDERED that any information, materials or documents not disclosed to

the Defendants as of February 10, 1995, shall be and is hereby excluded from use by the Crown in
this proceeding, unless otherwise ordered by the Court.

IT IS FURTHER ORDERED that the Defendant, Gerald J. Phillips shall be and is hereby
awarded costs in the amount of Five Hundred Dollars ($500.00) against Her Majesty the Queen
which costs shall be paid forthwith by Her Majesty the Queen to Gerald J. Phillips.

60 March 9, 1995 ‑- the trial was interrupted for a period of several weeks as a result of a motion
made by the prosecution requesting recusal of the trial judge. We conclude later in these reasons that a wrong
decision on recusal does not necessarily go to jurisdiction and that any subsequent decisions of the trial judge are
voidable, but not void. If the trial judge retained jurisdiction, then it is necessary to consider whether the stay of
proceedings subsequently ordered by him was a proper exercise of his discretion. The exhibition of a reasonable
apprehension of bias by a trial judge does not, in and of itself, bar appellate review of his subsequent decision.

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61 The facts surrounding the recusal motion also have relevance to the stay proceeding in that they
provide another example of unusual conduct on the part of the Crown. On March 2, 1995 the trial judge called
Mr. Martin Herschorn, Q.C., then Acting Director of the Public Prosecution Service, and complained about the
manner in which the lead Crown prosecutor, Mr. Felderhof, was conducting the trial. The trial judge advised
Herschorn that if he did not remove Felderhof from the case, the trial judge would take steps to attain that end.
Herschorn recorded the details of the conversation in a memo‑to‑file and advised Felderhof of the conversation
as soon as he could reach him that day.

62 Five days later, on March 7, 1995, the Crown disclosed the phone call to the defence. During those
five days completion of cross‑examination of one Crown witness and the direct and cross‑examination of
another Crown witness took place. It was not until March 9, 1995 that Mr. Marc Chisholm, Chief Crown
Attorney, appeared in court and made an application requesting the disqualification of the trial judge, the
declaration of a mistrial, and ultimately the setting of a new trial date.

63 The application was denied by Anderson J. It is significant, with respect to the Crown’s delay in
bringing its application, that during the elapse of the five days, the Attorney General and the police witnesses
were told about the phone call. Only the defence team were left in the dark.

64 The appellants have submitted that the testimony heard by the trial judge in those two days was
critical to the Crown’s case. They further submit that the recusal motion was, in fact, a tactical ploy on the part
of the Crown, as the Crown witnesses giving the critical evidence performed poorly and weakened the Crown’s
case. The appellant’s position is that the recusal motion was not motivated by the Crown’s belief that the trial
judge was biased as much as simple trial tactics. If the trial judge was disqualified the Crown would have a
fresh start on that portion of the trial. The Crown made no submission in rebuttal on these points.

65 April 18, 1995 -‑ the trial, now almost three years after the explosion, had resumed when counsel
for the appellants were provided with a copy of a letter of that date from Mr. Claude White, of the Department of
Labour, to Staff Sergeant Ches MacDonald of the RCMP with respect to Department of Labour documentation
relating to the Westray Mine. In the letter Mr. White stated:

As far as can be determined, all Department of Labour original documents relating to the Westray
Mine, including all inspection reports and orders, in existence prior to the May 9, 1992 explosion,
were sent to the Commission of Inquiry.

66 April 20, 1995 ‑- the trial judge granted an adjournment and made an order to allow counsel for
the appellants to examine the files of the Nova Scotia Department of Labour. The defence discovered files in the
possession of the Department of Labour which had not been disclosed by the Crown or anyone else to the
accused.

67 April 24, 1995 ‑- the trial judge made a number of orders with respect to duplicated documents.
The judge directed the Crown to identify original and duplicate documents listed in three separate exhibit
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indices maintained by the Crown. The trial judge further ordered the Crown not to introduce copies of
documents for the truth of their contents. This order stemmed from continuing problems in that regard, but
particularly from the following incident.

68 There was an issue at trial as to whether the operators of the mine had complied with the
occupational health and safety legislation of the Province of Nova Scotia. This legislation requires the creation
of safety committees, a combination of union and management safety officers, that, from time to time, perform
underground safety walks. The purpose of these committees is to discover and document potentially unsafe
practices and potentially hazardous areas.

69 At trial, the Crown introduced into evidence a document which it offered as a safety walk report
from the Westray Coal Mine. The document contained only the name “Roger Parry, mine superintendent” as
safety officer, prompting the trial judge to comment that “this is a committee of one”. It eventually was
discovered, from defence searches of the Crown files, that this document had been altered from the original.
The original document, in the possession of the Crown the entire time, also contained the names of the miner
representative safety officers. These names had been edited out of the document that the Crown had attempted
to introduce both for the truth of its contents and to draw a negative inference against the accused. In ordering
the Crown from that point on to introduce only original documents, the trial judge emphasized that this was a
matter of fundamental trial fairness.

70 May 7, 1995 -‑ the Court raised the issue of a possible agreement between counsel relating to
Department of Labour approvals for equipment. It was unclear exactly what theories were being advanced by
the Crown to prove criminal negligence in relation to the operation of the mining equipment. The trial was
adjourned and the matter was left for discussion among counsel. However, the Crown would not advise the
court or defence whether the issue of approvals for equipment did or did not form part of the allegations against
the applicants. Counsel for the appellants made an application for particulars pursuant to s. 587(1)(f) and (g) of
the Criminal Code and s. 7, 11(b), (d) and 24(1) of the Canadian Charter of Rights and Freedoms.

71 May 9, 1995 ‑- the trial judge granted the defence application for particulars, the order providing,
inter alia:

IT IS ORDERED that the Crown shall forthwith furnish to Counsel for the Defendants full
particulars of the equipment and materials alleged to have been used in an unsafe manner, as set out
in the Indictment dated the 18th day of May, 1994.

72 May 9, 1995 -‑ the Crown responded to the order for particulars by naming all possible equipment
and materials. The particulars provided by the Crown read, in their entirety, as follows:

PURSUANT to the Order of the Honourable Justice N.R. Anderson, dated the 9th day of May
1995, at Pictou, Nova Scotia, and further to paragraph (e) of the first count of the Bill of Indictment
herein, a copy of which is attached hereto, the Crown provides the following particulars:

A. Equipment
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1. Bulldozers

2. Tractors

3. Boom Trucks

4. Scoop Trams

5. Continuous Miners

7. Shuttle Cars

8. Roof Bolters

9. Conveyor Belt Drives

10. Auxiliary Fans

11. Generators

12. Electric Arc Welders

13. Acetylene Torches

14. Gasoline Powered Water Pump

B. Materials

15. Gasoline

16. Diesel Fuel

It is obvious these particulars are a cynical response by the Crown and of no help in informing the accused how
it was alleged that they were negligent in relation to the operation of the mining equipment.

73 Counsel for the appellants brought a motion the next day, May 10, 1995, for a determination of the
sufficiency of the particulars provided by the Crown. The trial judge found that the particulars provided were
insufficient, and ordered the Crown to specify the nature of the unsafe use for each piece of equipment or
material. To the date of this appeal the appellants state they have not received the particulars Anderson J.
ordered. However, this issue paled as other important disclosure matters arose.

74 On May 10, 1995, the trial judge had also ordered the RCMP to go to the offices of the Department
of Labour and the Westray Mine Public Inquiry and obtain original documents. This order resulted in the
disclosure by Crown counsel of previously undisclosed Department of Labour Inspection and Assessment
Reports relating to the Westray Mine, and original reports that differed from copies previously disclosed.
Counsel for the appellants then made an application to the trial judge for a stay of proceedings pursuant to a
violation of their Charter rights. The trial judge requested briefs to be filed before May 18 for a hearing to
commence on May 23.

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75 May 11, 1995 -‑ during the noon hour, Crown and defence counsel spoke by teleconference with
Marian Tyson, Q.C., a solicitor with the Nova Scotia Department of Justice. In this call, Tyson admitted that
more undisclosed documents had been found at the Department of Labour relating to the Westray Mine.

76 That afternoon, another Department of Justice solicitor, William Lahey, appeared at the trial and
made submissions respecting the Department of Labour materials discussed in the noon teleconference. Original
documents had been discovered by the Director of Mine Safety, Claude White, in his Department of Labour
office desk. Lahey emphasized that at that time, he could not assure the Court that further material would not be
located.

77 Between May 11 and the hearing of the stay application on May 23 many more documents not
previously disclosed were made available to defence counsel. The additional material included:

(1) A box of documents that was in the Westray document room on April 21, 1995 and in which
privilege was at that time claimed;

(2) Five computer disks containing the Westray “backup” computer file;

(3) Correspondence from Bruce McIntosh;

(4) Files of the Minister pertaining to Westray, minus privileged documents;

(5) Materials relating to various aspects of Westray, its aftermath, and to persons or events connected to
Westray;

(6) Police officer notes;

(7) A statement from a police officer concerning the location of original documents;

(8) A statement from a Department of Labour employee concerning the recent discovery of Department
of Labour documentation not previously disclosed; and

(9) Original Westray documentation found in a locked filing cabinet within the Department of Labour,
Former Mine Rescue Centre, located at Stellarton, Nova Scotia.

78 This “mountain” of disclosure was made after the trial judge had determined to hold a hearing on
the defendants’ motion for a stay of proceedings. The saga of the police officer’s notes is telling. Defence
counsel had, both before and after the commencement of trial, requested copies of the notes of all RCMP
officers involved in the investigation. On April 7, 1995, in a letter dealing with other disclosure matters,
Assistant Crown Prosecutor Arthur Theuerkauf wrote to counsel for Mr. Phillips: “[f]urthermore, you have been
provided with a copy of police officers’ notes listed on the Appendix attached to this letter”. The Appendix
included the names Sgt. K. W. Baird, Cst. W. Conrad and Cst. K. Gotell. Counsel for Mr. Phillips reviewed the
files and found that copies of these officers’ notes had not been provided.

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79 Another letter was written to Mr. Theuerkauf requesting copies of these notes. On May 4, 1995,
Theuerkauf again responded that the prosecution had already provided these notes. However, on May 18, a
letter dated May 16 arrived at the offices of counsel for Phillips enclosing 235 pages of notes prepared by Cst.
Kevin Gotell. These notes had not been previously provided. Theuerkauf’s letter did not explain why the
Crown had not previously disclosed these notes in a timely manner, notwithstanding counsel’s constant and
repetitive requests.

80 May 23, 1995 -‑ the stay proceeding hearing commenced before Anderson J.

81 Counsel for the appellant Phillips cited the 25 letters written to lawyers on the prosecution team
between the start of the trial on February 6, 1995 and the commencement of the stay proceeding on May 23,
1995. All of these letters sought more or improved disclosure from the Crown. Sometimes pages were missing
from documents that had been disclosed, in other cases entire files were absent.

82 At the stay proceeding hearing Marian Tyson, Q.C., a solicitor with the Nova Scotia Department of
Justice, testified that copious handwritten notes of former Department of Labour Mine Rescue Training
Co‑ordinator Fred Doucette had been secured from a locked filing cabinet in Doucette’s office in Stellarton,
Nova Scotia on May 16, 1995. The file folder containing these notes read: “Original Westray Documents -‑ Do
Not Alter or Destroy”. Fred Doucette had been a member of a three‑investigator team established by the
Department of Labour to obtain the evidence on which charges against the appellant were initially brought,
under the OHSA.

83 Ms. Tyson also confirmed that the Department of Public Prosecutions had provided advice to the
Department of Labour investigation. She also testified to the fact that the government of the day (Cabinet) had
instructed all government departments to cooperate with the RCMP investigation, and further that the
Department of Labour complied with this instruction.

84 The prosecution throughout these proceedings maintained that “[t]he Crown has not had and does
not have access to the Department of Labour files concerning the Westray explosion matters”. This cannot be
correct in light of Ms. Tyson’s testimony at the stay proceeding:

Q. You would also agree with me that there was coordination and cooperation between the
Department of Labour investigation and the RCMP investigation?

A. I can say that there was cooperation from the Department of Justice and from the Department of
Labour. And I understand, from other government departments, with the RCMP and that was on
instructions of the government of the day. So I can say, yes, to the cooperation.

...

Q. Anything the RCMP asked for, they got as quickly as possible?

A. Yes, in the same way that the Inquiry people were dealt with.
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Q. And ‑‑

A. Full cooperation to the extent that it could be given.

...

Q. Open invitation, if you want more, come get it. Correct?

A. Yes. As I said, if there was information that was available, could be provided. If it was
requested, it was provided

85 In the course of his examination during the stay proceeding, Staff Sergeant MacDonald confirmed
the close cooperation between himself and Harry Murphy, Chief Investigator for the Department of Labour, and
the fact that the Department of Public Prosecutions was advising both the provincial and criminal investigations.
Staff Sergeant MacDonald was also presented with the statement of Stewart Sampson, an employee of the
Department of Labour who was in charge of document collection and distribution:

Q. And in his statement, Mr. Sampson says with respect to documents in this ‑‑ that “I believe that I
provided a full set of copies to the RCMP. That would have been four boxes.” Now the date which
is given is on/or about June 30th, 1992, when these boxes were prepared.

Now that, in fact, is correct, is it not, that Mr. Stewart Sampson provided you with
approximately four boxes of material which were identical to the boxes which were provided to the
Commission?

A. That is correct. . . .

Staff Sergeant MacDonald confirmed several times in his testimony that the RCMP did have access to the
Department of Labour files. These files never found their way onto the exhibit list or the Q&A index. There
was additional testimony from Ms. Tyson during the stay hearing that these files were relevant to the defence in
this case.

86 Staff Sergeant MacDonald’s evidence also revealed that he was one of the main decision‑makers of
what was and was not to be disclosed. His evidence confirmed that:

(1) in screening materials for possible disclosure he considered the application of the hearsay rule;

(2) his test for disclosure was “all relevant evidence” rather than “all relevant information”;

(3) the Crown Attorneys relied on his assessment of the relevance of his 444 “administrative” files for
the purposes of disclosure and made no independent assessment of these files;

(4) some documents were not disclosed because they contained information that, solely in Staff
Sergeant MacDonald’s opinion, was known to defence counsel by other means; and

(5) his assessment of the Crown position on issue of disclosure was to downplay those issues because
he believed the Crown was diligent in its disclosure.

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87 The Crown’s conduct with respect to the 444 “administrative” files is demonstrative of their
behaviour throughout the course of this trial. On February 21, 1995, the trial judge ordered the Crown to move
the primary Westray files from Truro, where they had been kept during the course of the trial, to Pictou, where
the trial was being held. The trial judge was growing impatient with the delays occasioned by prosecution
witnesses needing something from the file. The trial judge commented:

There should be somewhere where it’s accessible and get things coordinated here so that we’re not
all the time xeroxing and waiting for things that counsel haven’t had and don’t know exist and things
you don’t know exist.

Crown counsel Theuerkauf responded as follows:

. . . we’ve undertaken amongst ourselves to ask Staff Sergeant MacDonald to bring over the full
RCMP file. We still understand there’s some administrative things in there that we’ve deemed all
along are not relevant . . .

This was the first time the existence of the so‑called “administrative” files was disclosed to counsel for the
defence. These files do not appear on the exhibit list or the Q&A index.

88 Eventually, these “administrative” files were all disclosed to the defence. The fact of their
non‑disclosure demonstrates a serious failure to comply with the duty resting on the Crown. However, the
Crown’s attitude about and response to this obligation is disclosed in Mr. Felderhof’s memo of April 13, 1995 to
Mr. Theuerkauf. It states:

. . . I feel it is extremely important to downplay any possible significance of this disclosure. I feel it
should be made clear to them that the materials were initially deemed irrelevant by Staff Sgt.
MacDonald and placed in his administrative files. Further that the Crown deemed the administrative
files not to be relevant and that we did not peruse same. Subsequent to those files being made
available, that Staff Sgt. MacDonald had an opportunity to review same and discovered these
materials which he brought to our attention; we reviewed these and felt that they should be disclosed
in accordance with the provisions of Stinchcombe, which calls for continuing disclosure. . . .

I feel it is extremely important that this issue be downplayed as much as possible and that it is
nothing more than continuing disclosure, and that we do not in any way, shape or form acknowledge
or admit any failure or error on the part of the RCMP or our office.

...

This is very important, not only with respect to the presentation before the Judge, but also as it may
appear to the media. We must be seen as presenting something of little or no significance. My
contact with the media subsequent to that will confirm this position. [Emphasis in original.]

This memorandum was written in contemplation of a motion for a stay of proceedings being made by the
defence. It should be read in light of Crown counsel’s submission in open court on February 21, 1995, that the
prosecution had looked at these files and deemed them irrelevant. No member of the prosecution team had ever
looked at these files until after their existence was disclosed to the defence. Only then did the Crown look at
these 444 files and belatedly discover that they should have been disclosed pursuant to R. v. Stinchcombe, 1991

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CanLII 45 (SCC), [1991] 3 S.C.R. 326. This memorandum demonstrates an unusual attitude on behalf of Crown
counsel that is not compatible with their responsibilities and critical role in our justice system. This evidence
eventually was before the trial judge in the stay proceeding.

89 In summary, the Crown had access to the Department of Labour file, yet they maintained that they
did not. The Crown had in its possession relevant “administrative” files, yet it chose not to read them, deemed
them irrelevant, and advised the court accordingly. When they were found to be relevant, Crown counsel
attempted to downplay the significance of their non‑disclosure, and blame a subordinate for a poor evaluation of
relevance. This remarkable attitude permeated the entire trial proceedings.

Decision of Anderson J. on the Stay (1995), 146 N.S.R. (2d) 163

90 Anderson J. emphasized that the incidents he described, some of which we have alluded to above,
were only examples of what he viewed as a pattern of Crown misconduct. He commented (at para. 53) that:

These are but a few of the incidents leading up to this application and are more fully set forth in
the materials tendered on this motion by the Crown and the applicants. The trial was a daily stop
and go situation, which tended to worsen with time.

He then turned to an application of the case law on abuse of process and the trial judge’s discretion to enter a
stay of proceedings.

91 Anderson J. cited Wong J. in R. v. Livingstone (1990), 1990 CanLII 10960 (BC SC), 57 C.C.C. (3d)
449 (B.C.S.C.), at p. 469:

The Law:

A trial judge has a discretion to stay proceedings as abuse of process. The general test to be applied
in determining whether or not to exercise that discretion is:

. . . there is a residual discretion in the trial judge to stay proceedings where compelling [the]
accused to stand trial would violate those fundamental principles of justice which underlay the
community sense of fair play and decency and to prevent the abuse of the court’s process
through oppressive or vexatious proceedings. It is power, however, of special application which
can only be exercised in the clearest of cases. [Emphasis added by Wong J.]

Anderson J. considered the leading authorities on the subject of abuse of process and the possible remedies for
it. He recognized that the doctrine of common law abuse of process and jurisprudence under s. 7 of the Charter
were growing into a single theory. In so doing, Anderson J. anticipated this Court’s decision in R. v. O’Connor,
1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. He quoted an article by Lee Stuesser titled “Abuse of Process:
The Need to Reconsider” found at (1994), 29 C.R. (4th) 92, in which the author, at p. 103, stated that “[i]n my
view, there is a place for common law abuse of process and for Charter relief to co‑exist resting upon the same
concerns and principles”. Anderson J. appeared to adopt this, at para. 71 of his reasons:

If one accepts the principled approach outlined in this article, the process for determining an
abuse of process and providing a remedy will be the same under the common law or under the

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Charter. Step one: under the Charter, the accused must prove a breach of the Charter on a balance
of probabilities; under the common law, the accused must prove the abuse on a balance of
probabilities. Step two: under the Charter, once a breach is shown, the court turns to a remedy that
is “appropriate and just” in the circumstances; under the common law, once the abuse is shown, the
court will look for appropriate remedies. Under both the common law and under the Charter, a stay
of proceedings will only be appropriate when no other remedy can properly cleanse the prejudice.
In other words, in both instances, a stay of proceedings is a last resort.

92 Anderson J. correctly recognized that both the common law and the Charter have as their goal the
protection of two separate policies. These are (1) to ensure that accused persons are given a fair trial, and (2) to
preserve the reputation of the administration of justice. A trial which violates either principle may be an abuse
of process or violative of the Charter.

93 The trial judge considered the leading authorities on the Crown’s obligation to disclose. He quoted
extensively from Stinchcombe, supra, R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, and R. v.
Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727.

94 Having considered the authorities and the principles contained therein the trial judge arrived at the
following conclusion with respect to the Crown disclosure in this case (at paras. 73‑78):

Having considered these authorities, the law seems clear. I am at a loss to understand why the
situation in this case has reached the stage it has; such a state of disarray.

The Crown does not seem to make a clear distinction between what is Crown discretion and
what is disclosure. Undoubtedly the Crown has discretion as to the conduct of their case. But it
seems that the very principles of fundamental justice would dictate that before charges are laid, the
Crown is aware of the evidence it has in hand or has available to it to substantiate those charges.

When they come to trial, it seems logical that the Crown would have the evidence which it
needs for the prosecution of the charges, marshalled and ready for presentation to the court, and thus,
available to the defence. The authorities not only speak of evidence, but any material. Many times
the court has heard about the multitude of documents, mountain of evidence, and the complexity of
the evidence. Now whether this has created a perception which has paralyzed the Crown in
organizing the proper evidence for the court, I cannot say.

Another fundamental principle of our criminal justice system is that the defence does not have
to do anything. The obligation is on the Crown to prove beyond a reasonable doubt the allegations
in the Indictment. However, in this case, as none before in my experience, defence has gone to great
length to seek out documents which they thought must exist in order to make a full answer and
defence. There is a particular attitude on behalf of the Crown evidenced by a letter filed by the
Crown inadvertently in this application and marked Exhibit 1764. Although part of it was not
allowed to be used in cross‑examination of Staff Sergeant MacDonald, there is another part which
states, as written by Mr. Felderhof to Mr. Theuerkauf:

“I feel it extremely important that this issue be downplayed as much as possible and that it is
nothing more than continuing disclosure and that we do not in any way, shape, or form
acknowledge or admit any failure or error on the part of the R.C.M.P. or our office. . . This is

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very important not only with respect to the presentation before the Judge, but as it may appear to
the media. We must be seen as presenting something of little or no significance. My contact to
the media subsequent to that will confirm this position.”

I have now grave concern that this trial as a criminal trial has been lost sight of. The court has
heard from a number of sources suggesting that this is the most important criminal trial in Nova
Scotia, that it is a very high profile trial, however, it is not prosecuted as such.

The perceived importance of this trial over other trials in the criminal justice systems [sic] was
such that even in the pretrial hearings, I was prompted to remind counsel that the Crown did not win
or lose. The reply was to the effect “well, that’s not what the public believes”.

95 Anderson J. cited the general observations of Professor McWilliams in Canadian Criminal

Evidence (3rd ed. 1988 (loose‑leaf)), at ch. 1:10100:

. . . it is especially where the end is righteous that the pursuit of truth alone can be purchased at too
dear a price. For that reason, the fundamental values of fairness and justice protected by due process
are especially important. In the current climate, there is a growing concern that these values are
being sacrificed.

He then commented (at para. 81) that:

I quoted the above because I have grave concerns that in this case the fundamental values of
fairness and justice protected by due process are being sacrificed on the altar of public and political
pressure.

96 Anderson J. noted six examples of documents which had not been previously disclosed by the
Crown, documents clearly relevant to the proceedings. He expressly referred throughout to these documents as
merely “examples”, and found that the documents not disclosed “would have assisted the applicants and would
have undoubtedly affected a full answer and defence” (at paras. 86-92):

Some examples that I find of nondisclosure or late amounting to nondisclosure was the
Richmond Report, Exhibit 1728, an expert report. It discloses a possible defence dealing with
spontaneous combustion of coal dust, August the 10th, 1992. Both the RCMP and the Crown knew
of its existence. This report specifically says that it may be a possible defence.

Exhibit 1729, a report of August 17, 1992, deals with the manner in which the RCMP should
conduct their investigation of dust samples and particularly the disruption of dust layers so that you
would not be able to determine the conditions after the explosion. This report came to light by the
efforts of the applicants.

There is General Monitor’s Report which deals with the methanometer on the continuous
miner. There is evidence that this monitor was adjusted by one of the miners with the knowledge of
another and that the adjustment would alter the reading of the methane levels at the sensor head.
The methane levels could be at explosive range. There is evidence of the continuous miner creating
sparks. The report of General Monitor indicates the effect of altering was not disclosed. It may
have represented a complete defence for the applicants and certainly goes to the right of the
applicants to make full answer and defence.

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The facsimile communication from Sergeant MacDonald to General Monitors, Exhibit 1759, of
March 21, 1994, and also Exhibit 1740, a Department of Labour memorandum from Sampson to
Staff Sergeant MacDonald dealing with pre‑explosion dust samples. The result which indicate [sic]
that there was an error in the method in the analysis and the result would understate the ash content.
This would give a reading suggesting higher combustibility than actual.

Staff Sergeant Bishop’s notes with respect to [the] conversation he had with Ms. Tyson of the
Department of Labour, July the 7th, 1992, where she advised the RCMP that samples taken in June
were useless. This was not disclosed to the defence.

The above‑noted are examples not of late disclosure but of nondisclosure, matters which would
have assisted the applicants and would have undoubtedly affected a full answer and defence.

On late disclosure documents, that of the Consent Agreement of the Receiver Peat Marwick,
signed December 16, 1993, and disclosed December 13, 1994. The principal subject matter of the
agreement is the retention by the prosecution of certain samples of material obtained under a search
warrant at the Westray Mine.

97 After he described the events of the trial, analysed the authorities and enumerated the above
examples of late and non‑disclosure, the trial judge concluded (at paras. 94‑97):

I find that the lack of disclosure or nondisclosure, the timing of disclosure and the nature of the
disclosure amounts to an infringement of the s. 7 right to make full answer and defence and infringes
on the right of a fair trial. Such a breach demands a remedy under s. 24(1) of the Charter.

As I indicated earlier, from the authorities, there are a number of options and remedies available
to the court at this juncture. There could be an exclusion of evidence, there could be a mistrial,
adjournment, stay of judicial proceedings which the court sees as a last resort.

Having considered all the options and the ramifications of each as outlined by counsel, I am
satisfied that the breach is of such a nature that the only remedy which can properly address the
prejudice already suffered by the applicants and to preserve the integrity of the criminal justice
system, is a stay of proceedings.

Although it appears that there was a common law abuse of process in this case, I did not take
that option.

Court of Appeal (1995), 1995 CanLII 4182 (NS CA), 146 N.S.R. (2d) 161

98 The Court of Appeal delivered its ruling orally, two hours after the close of argument. The
pertinent part of the ruling on the stay issue is as follows (at paras. 5‑8):

We are of the opinion the appeal should be allowed for the following reasons: . . . (ii) the learned
trial judge failed to make an inquiry and a proper determination whether evidence that had not been
disclosed or was disclosed late was material to the respondents’ ability to make full answer and
defence as the trial judge was required to do. (R. v. O’Connor (H.P.) (1994), 1994 CanLII 6415 (BC
CA), 42 B.C.A.C. 105; 67 W.A.C. 105; 89 C.C.C. (3d) 109 (C.A.)). In fact, the learned trial judge
outrightly refused to consider evidence the Crown wished to tender on this issue. Without having
decided if the evidence was material, the learned trial judge failed to exercise his power to grant a

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stay in a judicial manner; (iii) stays of proceedings are only granted in the clearest of cases. (R. v.
Power (E.), 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601; . . . R. v. Burlingham (T.W.), 1995 CanLII
88 (SCC), [1995] 2 S.C.R. 206 . . . This was not such a case.

There was substantial disclosure by the Crown; the instance of non or late disclosure related to
evidence that was not shown by the respondents to be material to the respondents’ ability to make
full answer and defence. Rather than staying the proceedings, the learned trial judge ought to have
either declared a mistrial or granted an adjournment of sufficient duration to allow the defence to
peruse the newly discovered or previously undisclosed evidence, including the so‑called
administrative files, the Claude White notebooks, the envelope found in Fred Doucette’s office at
Stellarton and other relevant Department of Labour files and ought to have ordered that any
witnesses who had already testified be recalled if defence counsel wished to further cross‑examine
them on issues arising out of the perusal of the new evidence.

We are also of the opinion the Crown’s conduct of this case was not an abuse of the court’s
process.

Accordingly, the appeal is allowed, the order of the trial judge staying the proceedings is set
aside, including the order for costs. There will be no costs on the appeal. A new trial is ordered.

Review of the Court of Appeal’s Reasons

99 The Court of Appeal within two hours of the close of argument held that the trial judge “failed to
make an inquiry and a proper determination whether evidence that had not been disclosed or was disclosed late
was material to the respondents’ ability to make full answer and defence” as he was required to do. It is
impossible to determine upon what basis the Court of Appeal reached that conclusion. The trial judge’s reasons
are detailed and clear. He looked at several examples of late and non‑disclosure and found that they may have
disclosed possible defences to the accused. He obviously made both an inquiry and a proper determination. We
reiterate the findings made by the trial judge (at paras. 91 and 94):

The above‑noted are examples not of late disclosure but of nondisclosure, matters which would
have assisted the applicants and would have undoubtedly affected a full answer and defence.

...

I find that the lack of disclosure or nondisclosure, the timing of disclosure and the nature of the
disclosure amounts to an infringement of the s. 7 right to make full answer and defence and infringes
on the right of a fair trial. Such a breach demands a remedy under s. 24(1) of the Charter.

To the extent the Court of Appeal thought otherwise, we respectfully disagree.

100 Within the brief period of its deliberation it is unlikely the Court of Appeal had time to assess the
materiality of the mountain of evidence that was not disclosed. The Court of Appeal assumed the trial judge had
to have been mistaken. In doing so, the Court of Appeal disregarded the principle of deference to the trial
judge. There was so much that was not disclosed or disclosed late that it defies credibility to think there was no
material information involved.

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101 The facts of what occurred during the trial including what evidence was material or not go directly
to the heart of the trial judge’s expertise. In a case as complex as the one before us, it is difficult if not
impossible for any appellate court to determine from the record whether what was not disclosed was material.
The only person who knew enough about the theories of the Crown and the possible defences available to the
accused was the trial judge. He made clear findings that the non‑disclosure was material. That said, we prefer
to treat the issues in this case as an abuse of process rather than a simple failure to disclose.

Analysis

Was the Trial Judge’s Order for a Stay of Proceedings a Nullity?

102 La Forest and Cory JJ. hold that the trial judge’s telephone call to a senior officer in the Crown
Attorney’s office establishes that the trial judge was biased and partial. They go on to assert that any bias in the
trial judge renders the proceedings void and automatically deprives the judge of jurisdiction. Applying this
proposition of law to the finding of bias, they conclude that the trial judge lost jurisdiction over the trial as of the
date of the telephone call and that all the proceedings thereafter were a nullity. Consequently, they do not find it
necessary to consider whether the trial judge wrongly exercised his discretion in entering the stay of proceedings
which is the subject of this appeal. With respect, we disagree.

103 The facts giving rise to the allegation of apprehension of bias have been discussed earlier. Briefly,
on March 2, 1995 the trial judge made a call to the superior of the lead counsel for the prosecution in which he
complained about the way counsel, and, in particular, Mr. Felderhof, were conducting the prosecution and
suggested that Mr. Felderhof be removed from the case. The call was disclosed to the defence on March 7,
1995. Two days later, the Crown applied for an order that the judge be disqualified, a mistrial declared, and a
new trial date set. The appellant Parry supported the Crown in its application. The order was refused and
eventually, after an application for leave to appeal the recusal decision to this Court was quashed (1995 CanLII
140 (SCC), [1995] 1 S.C.R. 900), the trial continued. On May 23, 1995, the defence applied for a stay of
proceedings on grounds that the continuing conduct of the prosecution, particularly delay and misrepresentation
regarding disclosure to the defence of documents in the prosecution’s possession, amounted to abuse of process,
justifying a stay.

104 Before considering the specific circumstances surrounding the stay of proceedings, the first issue is
whether the telephone call demonstrated that the trial judge was biased or alternatively raised a reasonable
apprehension that he might be biased. As a general rule, a judge should not discuss a case with one party
outside the presence of the other party. Much less should a judge suggest to one party in the absence of the
other who counsel on the case should be. However, a conclusion of bias does not flow automatically from
breach of this rule. The question is whether the content of the discussion in all the surrounding circumstances
supports an inference that the trial judge favoured one party over the other. In the case at bar, the trial judge had
good reason to conclude that Mr. Felderhof’s conduct was prejudicing a fair trial and, indeed, might ultimately
have caused the trial to be aborted. While the trial judge should not have stipulated that Mr. Felderhof be
removed, it is questionable whether his doing so indicated partiality to either the Crown or the defence. One
might argue that the comment indicated partiality for the defence, since the trial judge was critical of Crown
counsel. But one might equally argue that the trial judge was partial, if anything, to the Crown, since he seemed
concerned that the Crown case be conducted effectively. Perhaps the most natural inference from the trial
judge’s conduct is simply that he was concerned that the trial proceed fairly.

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105 However, even if the inference could be drawn that the trial judge was biased against the Crown, it
does not follow that the trial judge automatically lost jurisdiction. In our view, bias or apprehension of bias does
not automatically deprive the judge of jurisdiction and render all proceedings thereafter void. Rather, it renders
the proceedings voidable. The judge retains jurisdiction. An application may be made to the judge (or other
appropriate judicial officer) for the judge’s removal or for such other remedy as may seem just on the basis of
the bias or apprehension of bias. If an order is made for removal of the judge, then the judge loses jurisdiction.
But absent such an order, the judge continues to exercise jurisdiction over the proceedings.

106 While the issue has not often arisen in criminal proceedings, the authorities support the view that
bias or apprehension of bias does not automatically render the trial a nullity. This flows from the general
principle that a court order must be obeyed until there is an order to the contrary. This principle is of
fundamental importance to the rule of law and public order. As Mahoney J.A. stated in Canada (Canadian
Human Rights Commission) v. Taylor, 1987 CanLII 5390 (FCA), [1987] 3 F.C. 593 (aff’d 1990 CanLII 26
(SCC), [1990] 3 S.C.R. 892), at p. 601, adopting the rationale of O’Leary J. in Canada Metal Co. v. Canadian
Broadcasting Corp. (No. 2) (1974), 1974 CanLII 835 (ON SC), 4 O.R. (2d) 585 (H.C.), at p. 613:

The duty of a person bound by an order of a court is to obey that order while it remains in force
regardless of how flawed he may consider it or how flawed it may, in fact, be. Public order demands
that it be negated by due process of the law, not by disobedience.

The contrary view runs counter to the rule of law and the practical functioning of our judicial system. For
example, if this view were to hold, parties perceiving bias could lie in the weeds and long after the trial judge
rules against them, have the entire proceeding invalidated ab initio. A party who was not prejudiced by the bias
could move to have the proceedings and verdict set aside on the ground of nullity. Persons affected by a court
order would look to see whether there is some basis on which the judge’s jurisdiction could be impugned and
decide accordingly whether to obey the order or not. Absent verification that the judge in fact was not biased,
no one could know for certain whether a court order was worth the paper it was recorded on. Verdicts, including
acquittals, and sentences long since imposed could be overturned on the discovery, perhaps years later, of
conduct by the trial judge capable of supporting a reasonable apprehension of bias. Finally, if the jurisdiction of
the trial judge ended with the event giving rise to an apprehension of bias, it would not be possible to make a
motion to the trial judge for recusal since he or she would lack jurisdiction to hear it; the established procedure
for remedying bias would be rendered invalid.

107 This Court affirmed that criminal trials are not vitiated ab initio by errors which may affect
jurisdiction in Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709. The trial judge had denied
the accused the right to peremptorily challenge a juror. The prosecution contended that this vitiated the
proceeding and deprived the court of jurisdiction. The majority of this Court, per Pratte J., rejected this
argument (at p. 715):

Respondent argued that either one or the other of these two decisions of the trial judge was
necessarily in error, with the result that the jury was improperly impanelled and the verdict should be
regarded as null. This submission of respondent is too general. A trial is not necessarily vitiated by
any erroneous decision of a judge; the consequences that follow from an illegality depend on the
nature of the rule that is violated and the importance of the right which such rule is designed to
safeguard.

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After discussing the consequences of denial of a peremptory challenge, Pratte J. asked (at p. 724):

Is it a relative nullity which may only be pleaded by the accused, or an absolute nullity that is not
capable of ratification and may also be relied on by the prosecution?

He concluded that the right of peremptory challenge could be exercised (and/or waived) by the accused
independently of the Crown and that the prosecution could not argue that the proceedings had been nullified by
the procedural error.

108 The same, in our opinion, is true of bias. A judge may make a comment or decision in the course
of a trial which leads to a reasonable apprehension of bias. The party against whom the bias is directed may
wish to overlook the comment and continue with the trial. He is entitled to do so without fear that, at a later
date, the other party, dissatisfied with the verdict, will challenge it on the ground that the entire proceeding
thereafter is a nullity. Nor, in fairness, should the party against whom the bias is directed be permitted to leave
the bias unchallenged and continue with the trial, secure in the knowledge that he can apply to have the verdict
nullified should it go against him.

109 The issue of whether error that may affect jurisdiction nullifies criminal proceedings was more
recently considered in R. v. Pastro (1988), 1988 CanLII 214 (SK CA), 66 Sask. R. 241 (C.A.). A justice of the
peace issued a search warrant which, after the police had acted on it, was shown not to be based on reasonable
grounds. It was argued that the warrant was void ab initio and that the search therefore violated the accused’s
protection against unreasonable search and seizure under s. 8 of the Charter on the basis that it was carried out
without legal authorization. Bayda C.J.S., the only justice of appeal to consider this issue, rejected the argument
(at para. 16):

A close examination of the material reveals only a search warrant that is regular on its face, from the
standpoint of form and jurisdiction, but one which was issued because the justice who authorized its
issue was wrong in law or wrong in the exercise of his discretion. It reveals a search warrant that I,
in my discretion, would not have issued had I been the justice before whom the information was
presented; that I, as an appellate judge, would have no difficulty in setting aside had the justice’s
order been appealed to me; that I, as a superior court judge, exercising supervisory powers would
have seriously entertained quashing on the ground that the justice had no jurisdiction. . . . In short,
the material reveals a search warrant that . . . should now be set aside. It does not, however, reveal a
search warrant that was a nullity, that is, one void from its inception (on the ground of fraud,
deliberate deceptive conduct, or no jurisdiction in the sense that a justice had no general power to
issue search warrants) and thus not valid at the time of the impugned search. [Emphasis in original.]

110 This passage distinguishes between orders which on their face appear to be valid despite
underlying jurisdictional faults, and orders which do not even have the appearance of validity because they are
made without statutory authority, or as a consequence of fraud or duress. The former are voidable, while the
latter may be void ab initio. Bias falls into the first category. The judge’s orders bear the same trappings of
validity before the events leading to the apprehension of bias as afterward. On their face, the proceedings are
regular. While they may at a later date be set aside on account of bias, they are not absolute nullities.

111 Fraser C.J.A. (dissenting but not on this ground) of the Alberta Court of Appeal applied similar
reasoning in R. v. Smith (1995), 1995 ABCA 299 (CanLII), 31 Alta. L.R. (3d) 227. The trial judge had
adjourned the trial during the Crown’s presentation of evidence in order to speak to counsel in chambers. The
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accused claimed that the judge’s comments in chambers gave rise to a reasonable apprehension of bias. Fraser
C.J.A. expressed the view that this did not nullify the proceedings and opined that the concept of automatic
nullity developed in administrative law cases “should not apply with equal force in criminal proceedings: cf. R.
v. Hall (1988), 1988 CanLII 4965 (SK QB), 69 Sask. R. 245 (Q.B.)” (p. 237).

112 La Forest and Cory JJ. cite an administrative law case in support of the proposition that bias
renders the proceedings of a tribunal void ab initio. In our view, this authority does not apply in the criminal law
context. Courts dealing with appeals from tribunals often find themselves confronted by statutory privative
clauses immunizing the tribunal decision from review on all but jurisdictional grounds. In order to correct
orders made by biased tribunals, courts have been forced to categorize bias in the administrative law context as
depriving the tribunal of jurisdiction ab initio. This problem does not exist in the criminal context, where Courts
of Appeal have full powers to remedy all deficiencies of procedure and substance.

113 Our research reveals no common law country which holds that apprehension of bias automatically
nullifies a criminal trial. In the United States the problem has frequently fallen for consideration. Post‑hearing
disqualification for bias is controlled by the concept of “seasonality”. A judge will not be disqualified by reason
of bias unless the application for disqualification is made in a timely and seasonable fashion. Unless objection is
taken promptly upon discovery of the alleged bias, the right to have or to have had an unbiased adjudicator is
lost: United States v. Daley, 564 F.2d 645 (2d Cir. 1977), certiorari denied 435 U.S. 933 (1979); Smith v.
Danyo, 441 F.Supp. 171 (M.D. Penn. 1977), aff’d 585 F.2d 83 (1978); In re Martin‑Trigona, 573 F.Supp. 1237
(D. Conn. 1983), aff’d 770 F.2d 157 (2d Cir. 1985). Thus, in the United States bias or apprehension of bias
does not nullify the trial or the verdict that follows. If a party acts promptly, or “seasonably”, it may succeed in
having the judge disqualified for bias. Otherwise, the proceedings and their conclusion remain on foot and no
complaint can be made.

114 We conclude that judicial conduct giving rise to a reasonable apprehension of bias does not
automatically deprive the judge of jurisdiction and nullify criminal proceedings. The proper course for a party
affected by the bias is to move promptly for recusal of the judge. Absent an order disqualifying the judge, the
judge retains jurisdiction and the proceedings continue as before. On review, an appellate court may, depending
on circumstances, overturn the judge’s decision on the motion for recusal. However, until overturned by higher
authority, the judge retains jurisdiction, and all orders he or she makes or has made are valid.

115 It follows that the trial judge in the case at bar retained jurisdiction after the telephone call alleged
to give rise to an apprehension of bias against the Crown. This jurisdiction continued through the recusal motion
and after its dismissal. The subsequent decisions of the judge were voidable, not void. It thus becomes
necessary to consider whether the trial judge’s order entering a stay of proceedings was in error and should be
set aside.

116 We add that even if we agreed with the reasons of La Forest and Cory JJ. that the trial judge lost
jurisdiction by not recusing himself from the trial, it is open to this Court, in the interest of justice, to examine
the circumstances of the proceedings and to enter a stay if that is the result required.

Abuse of Process
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117 An examination of the facts upon which the trial judge based his decision leads to the conclusion
that what occurred in this case was an abuse of process. While the trial judge believed that the non‑disclosed
evidence was material to the accused’s ability to make full answer and defence, it is our opinion that the entire
conduct of this trial has brought the administration of justice into disrepute and in the process violated s. 7 of the
Charter.

118 This Court recognized in O’Connor, supra, that the common law of abuse of process has been
subsumed into s. 7 of the Charter. An abuse of process can take many forms, but every finding of an abuse of
process must contemplate either society’s interest in preserving the integrity of the judicial system or the
individual’s interest in having a fair trial. As is pointed out by L’Heureux‑Dubé J. in O’Connor, at p. 457, “the
latter is essentially a subset of the former”. In R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at
pp. 136‑37, Dickson C.J. adopted the proposition that an abuse of process exists where there is a violation of
“those fundamental principles of justice which underlie the community’s sense of fair play and decency” or
where there is an “abuse of a court’s process through oppressive or vexatious proceedings”. This test existed at
common law and remains under the Charter. While this Court’s decision in O’Connor recognized that the
finding of an abuse of process will not necessarily result in a stay of proceedings, the determination of what
constitutes abuse of process remains unchanged.

119 The trial judge indicated his willingness to find a common law abuse of process as an alternative
ground of his ruling. In our view, this case falls squarely within that concept. The victims of the mine disaster
are anxious to determine the causes of the explosion and the loss of life at Westray. They are entitled to justice
but as has been previously stated that can only be achieved by convicting the right people. Under either the
common law or the Charter, the conduct of this case amounts to an abuse of process.

120 To paraphrase Professor McWilliams in his text Canadian Criminal Evidence, supra, at
ch. 1:10100, it is especially where pursuit of truth is righteous that we must guard against overreaching on the
part of those charged with the authority to investigate and prosecute crimes. We cannot be tolerant of abusive
conduct and dispose of due process, however serious the crimes charged. High profile trials, by their nature,
attract strong public emotions. In our society the Crown is charged with the duty to ensure that every accused
person is treated with fairness. It is especially in high profile cases, where the justice system will be on display,
that counsel must do their utmost to ensure that any resultant convictions are based on facts and not on
emotions. When the Crown allows its actions to be influenced by public pressure the essential fairness and
legitimacy of our system is lost. We sink to the level of a mob looking for a tree.

121 The present case is not simply about Crown non‑disclosure. This case is about the appearance of
justice. Throughout the proceedings the Crown bent and broke rules, and attempted to cover up when it was
caught. The Crown actively misled the court, on a number of occasions. The Crown ignored or failed to obey
court orders. It is unnecessary to repeat the litany of abuses that have already been described. The entire
proceedings were tainted by prosecutors who were playing to an enraged public, and playing to win. That this is
apparent can be seen from the internal memo that passed between prosecutors referred to by the trial judge and
in these reasons. To win is not the role of the prosecutor; to win at all costs is an affront to the Canadian justice
system. Courts should not tolerate activities which demonstrate this attitude. The conduct of Crown counsel at

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the trial violates the fundamental principles that underlie the community’s sense of fair play and decency and
constitutes an abuse of the court’s process.

Remedy

122 A stay of proceedings is a last resort, only to be entered in the “clearest of cases”: R. v. Young
(1984), 1984 CanLII 2145 (ON CA), 46 O.R. (2d) 520; Jewitt, supra. The trial judge recognized the seriousness
of entering a stay of proceedings, and in making his final decision he directed himself to consider other
remedies, including the exclusion of evidence, an adjournment, or a mistrial.

123 In certain cases, a stay will be the only possible remedy, while in others it will be only one of
several possible remedies. See Stuesser, supra, at p. 99:

Abuse of process, however, takes many forms. A stay of proceeding[s] simply is not necessary
or desirable in all cases where abuse is found. This is particularly true for abuses that affect the
fairness of the trial, such as caused by delay or non‑disclosure. In terms of ensuring a fair trial
judges are well equipped to respond to alleged abuses short of staying the proceedings. They have
an arsenal of remedies: adjourning the proceedings, recalling of witnesses, calling witnesses on
behalf of the court, ordering disclosure, or exclusion of evidence. Judges in the United Kingdom
and in Australia are admonished to look to these lesser remedies before entering a stay of
proceedings. These authorities recognize that under common law a stay of proceeding[s] is not the
“only” recourse.

124 In O’Connor, supra, the majority adopted the guidelines of Professor Paciocco for determining
when a stay of proceedings is an appropriate remedy for an abuse of process, at p. 465:

(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 learned trial judge was clear about his findings on these matters, as illustrated by the reasons for judgment
and the quotations from them used in these reasons. Throughout the pre‑trial process and the trial itself, the trial
judge utilized numerous remedies to ensure that the Crown was complying with its obligations. Adjournments
were granted. Directions were given. Various orders were made, including an order for particulars. Costs were
awarded against the Crown in favour of the appellant Phillips. All of these remedies failed to provide an
effective remedy and did not result in an improvement in the Crown’s disclosure deficiencies.

125 We have come to the conclusion that the trial judge was correct in determining that the only
remedy for the conduct of the Crown in this case was a stay of proceedings. The trial judge granted a stay as a
remedy for the prejudicial effect of the Crown’s non‑disclosures on the appellants’ right to make full answer and
defence. Additionally, we would grant a stay as a remedy for Crown conduct that was an abuse of process
bringing the administration of justice into disrepute.

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126 The Crown has neither acknowledged its errors during the first trial, nor provided any assurance
that a second trial will be conducted any differently. Instead, the Crown spent a great deal of its submissions
attacking the materiality of the six examples of nondisclosure cited by the trial judge. The Crown says nothing
about the rest of the “mountain” of nondisclosures. Further, the Crown submitted that:

. . . there is a positive duty on defence counsel to bring any disclosure problems to the attention of
the trial Judge at the earliest possible opportunity. Failure to do so may, in certain instances, deprive
the accused of a remedy for non‑disclosure.

In our view, counsel for the appellants in this case went above and beyond the call of duty in searching out
evidence that had not been disclosed. On several occasions, it was only through defence searches of the
Crown’s own files that material information was uncovered. Rather than simply admitting the errors it made
during the trial, the Crown has consistently attempted to place blame on others. The Crown gives us no hint that
its attitude will change in the future.

127 How else could this Court express its disapproval of the Crown’s conduct in this case other than by
endorsing the stay of proceedings? The appellants have been charged and prosecuted for almost five years.
There is no certainty that the full disclosure the appellants were entitled to before plea has even now been made
or, indeed, can ever be made. The Crown decided as is its right to proceed by direct indictment on these serious
charges and deprived the appellants of a preliminary hearing. The Crown ignored its duty to disclose and to act
in a manner consistent with the presumption of innocence that belongs to all accused. This has, on the findings
of the trial judge, impaired the conduct of the defence and derogated from the right to a fair trial. Ordering a
new trial would itself bring the administration of justice into disrepute. If this is not the clearest of cases, it is
hard to imagine what would qualify. We would restore the order of Anderson J., and award the appellants
solicitor/client costs throughout.

Appeal dismissed with costs to the appellants, MCLACHLIN and MAJOR JJ. dissenting.

Solicitors for the appellant Phillips: Blois, Nickerson & Bryson, Halifax.

Solicitor for the appellant Parry: Nova Scotia Legal Aid ‑- Westray Office, Halifax.

Solicitors for the respondent: Garson, Knox & MacDonald, Halifax.

Federation of Law Societies of Canada

By for the law societies members of the

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 37

Vancouver (City) v. Ward

CanLII - 2010 SCC 27 (CanLII)

1/6/2019 CanLII - 2010 SCC 27 (CanLII) 38

Vancouver (City) v. Ward, [2010] 2 SCR 28, 2010 SCC 27 (CanLII)

Date: 2010-07-23
File 33089
number:
Other 321 DLR (4th) 1; 404 NR 1; [2010] 9 WWR 195; 7 BCLR (5th) 203; [2010] EXP 2331; 76 CR (6th) 207;
citations: 290 BCAC 222; 75 CCLT (3d) 1; 213 CRR (2d) 166; [2010] CarswellBC 1947; EYB 2010-177090;
JE 2010-1305; [2010] SCJ No 27 (QL); 491 WAC 222
Citation: Vancouver (City) v. Ward, [2010] 2 SCR 28, 2010 SCC 27 (CanLII), <http://canlii.ca/t/2bq8r>, retrieved on
2019-01-06

SUPREME COURT OF CANADA

CITATION: Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 DATE: 20100723
S.C.R. 28 DOCKET: 33089

BETWEEN:
City of Vancouver
Appellant
and
Alan Cameron Ward
Respondent
AND BETWEEN:
Her Majesty The Queen in Right of the
Province of British Columbia
Appellant
and
Alan Cameron Ward
Respondent
‑ and ‑
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Aboriginal Legal Services of
Toronto Inc., Association in Defence of the Wrongly Convicted,
Canadian Civil Liberties Association, Canadian Association of
Chiefs of Police, Criminal Lawyers’ Association (Ontario),
British Columbia Civil Liberties Association and
David Asper Centre for Constitutional Rights
Interveners
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CORAM: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

REASONS FOR JUDGMENT: McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Abella, C
(paras. 1 to 80) harron, Rothstein and Cromwell JJ. concurring)

______________________________

Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28

City of Vancouver Appellant

v.

Alan Cameron Ward Respondent

‑ and ‑

Her Majesty The Queen in Right

of the Province of British Columbia Appellant

v.

Alan Cameron Ward Respondent

and

Attorney General of Canada,

Attorney General of Ontario,
Attorney General of Quebec,
Aboriginal Legal Services of Toronto Inc.,
Association in Defence of the Wrongly Convicted,
Canadian Civil Liberties Association,
Canadian Association of Chiefs of Police,
Criminal Lawyers’ Association (Ontario),

British Columbia Civil Liberties Association and

David Asper Centre for Constitutional Rights Interveners

Indexed as: Vancouver (City) v. Ward

2010 SCC 27

File No.: 33089.

2010: January 18; 2010: July 23.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

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Constitutional law — Charter of Rights — Enforcement — Damage award as remedy for breach of
rights — Quantum — Claimant strip searched and his car seized in violation of his constitutional rights —
Whether claimant entitled to damages as remedy under s. 24(1) of Canadian Charter of Rights and Freedoms —
If so, how should quantum of damages be assessed.

During a ceremony in Vancouver, the city police department received information that an unknown
individual intended to throw a pie at the Prime Minister who was in attendance. Based on his appearance, police
officers mistakenly identified W as the would‑be pie‑thrower, chased him down and handcuffed him. W, who
loudly protested his detention and created a disturbance, was arrested for breach of the peace and taken to the
police lockup. Upon his arrival, the corrections officers conducted a strip search. While W was at the lockup,
police officers impounded his car for the purpose of searching it once a search warrant had been obtained. The
detectives subsequently determined that they did not have grounds to obtain the required search warrant or
evidence to charge W for attempted assault. W was released approximately 4.5 hours after his arrest. He
brought an action in tort and for breach of his rights guaranteed by the Canadian Charter of Rights and
Freedoms against several parties, including the Province and the City. With respect to the strip search and the
car seizure, the trial judge held that, although the Province and the City did not act in bad faith and were not
liable in tort for either incident, the Province’s strip search and the City’s vehicle seizure violated W’s right to be
free from unreasonable search and seizure under s. 8 of the Charter. The trial judge assessed damages under
s. 24(1) of the Charter at $100 for the seizure of the car and $5,000 for the strip search. The Court of Appeal, in
a majority decision, upheld the trial judge’s ruling.

Held: The appeal should be allowed in part.

The language of s. 24(1) is broad enough to include the remedy of constitutional damages for breach
of a claimant’s Charter rights if such remedy is found to be appropriate and just in the circumstances of a
particular case. The first step in the inquiry is to establish that a Charter right has been breached; the second
step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one
or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.

Once the claimant has established that damages are functionally justified, the state has the
opportunity to demonstrate, at the third step, that countervailing factors defeat the functional considerations that
support a damage award and render damages inappropriate or unjust. Countervailing considerations include the
existence of alternative remedies. Claimants need not show that they have exhausted all other recourses.
Rather, it is for the state to show that other remedies including private law remedies or another Charter remedy
are available in the particular case that will sufficiently address the Charter breach. Concern for effective
governance may also negate the appropriateness of s. 24(1) damages. In some situations, the state may establish
that an award of Charter damages would interfere with good governance such that damages should not be
awarded unless the state conduct meets a minimum threshold of gravity.

If the state fails to negate that the award is “appropriate and just”, the final step is to assess the
quantum of the damages. To be “appropriate and just”, an award of damages must represent a meaningful
response to the seriousness of the breach and the objectives of s. 24(1) damages. Where the objective of
compensation is engaged, the concern is to restore the claimant to the position he or she would have been in had
the breach not been committed. With the objectives of vindication and deterrence, the appropriate determination
is an exercise in rationality and proportionality. Generally, the more egregious the breach and the more serious
the repercussions on the claimant, the higher the award for vindication or deterrence will be. In the end, s. 24(1)
damages must be fair to both the claimant and the state. In considering what is fair to both, a court may take into
account the public interest in good governance, the danger of deterring governments from undertaking beneficial
new policies and programs, and the need to avoid diverting large sums of funds from public programs to private
interests. Damages under s. 24(1) should also not duplicate damages awarded under private law causes of
action, such as tort, where compensation of personal loss is at issue.

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Here, damages were properly awarded for the strip search of W. This search violated his s. 8
Charter rights and compensation is required, in this case, to functionally fulfill the objects of constitutional
damages. Strip searches are inherently humiliating and degrading and the Charter breach significantly impacted
on W’s person and rights. The correction officers’ conduct which caused the breach was also serious. Minimum
sensitivity to Charter concerns within the context of the particular situation would have shown the search to be
unnecessary and violative. Combined with the police conduct, the impingement on W also engages the objects
of vindication of the right and deterrence of future breaches. The state did not establish countervailing factors
and damages should be awarded for the breach. Considering the seriousness of the injury and the finding that
the corrections officers’ actions were not intentional, malicious, high‑handed or oppressive, the trial judge’s
$5,000 damage award was appropriate.

With respect to the seizure of the car, W has not established that damages under s. 24(1) are
appropriate and just from a functional perspective. The object of compensation is not engaged as W did not
suffer any injury as a result of the seizure. Nor are the objects of vindication of the right and deterrence of future
breaches compelling. While the seizure was wrong, it was not of a serious nature. A declaration under s. 24(1)
that the vehicle seizure violated W’s right to be free from unreasonable search and seizure under s. 8 of the
Charter adequately serves the need for vindication of the right and deterrence of future improper car seizures.

Cases Cited

Considered: Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13 (CanLII), [2002] 1
S.C.R. 405; referred to: Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; Doucet‑Boudreau v.
Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 S.C.R. 3; Dunlea v. Attorney‑General,
[2000] NZCA 84, [2000] 3 N.Z.L.R. 136; Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2
S.C.R. 229; Anufrijeva v. Southwark London Borough Council, [2003] EWCA Civ 1406, [2004] Q.B. 1124;
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v.
Attorney‑General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429; Fose v. Minister of Safety and Security, 1997 (3) SA
786; Attorney General of Trinidad and Tobago v. Ramanoop, [2005] UKPC 15, [2006] 1 A.C. 328; Smith v.
Wade, 461 U.S. 30 (1983); R. v. B.W.P., 2006 SCC 27 (CanLII), [2006] 1 S.C.R. 941; Simpson v.
Attorney‑General, [1994] 3 N.Z.L.R. 667; Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339;
Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129;
Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., 1996 CanLII 208 (SCC),
[1996] 2 S.C.R. 345; R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353; R. v. Conway, 2010 SCC 22
(CanLII), [2010] 1 S.C.R. 765; R. v. Golden, 2001 SCC 83 (CanLII), [2001] 3 S.C.R. 679.

Statutes and Regulations Cited

Act respecting industrial accidents and occupational diseases, R.S.Q., c. A‑3.001.

Canadian Charter of Rights and Freedoms, ss. 8, 9, 24, 32.

Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 49, 51.

Constitution Act, 1982, s. 52(1).

APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Saunders
and Low JJ.A.), 2009 BCCA 23 (CanLII), 89 B.C.L.R. (4th) 217, 265 B.C.A.C. 174, 446 W.A.C. 174, 304
D.L.R. (4th) 653, [2009] 6 W.W.R. 261, 63 C.C.L.T. (3d) 165, [2009] B.C.J. No. 91 (QL), 2009 CarswellBC
115, affirming a decision of Tysoe J., 2007 BCSC 3 (CanLII), 63 B.C.L.R. (4th) 361, [2007] 4 W.W.R. 502, 45
C.C.L.T. (3d) 121, [2007] B.C.J. No. 9 (QL), 2007 CarswellBC 12, finding a breach of Charter rights and
awarding damages. Appeal allowed in part.

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Tomasz M. Zworski, for the appellant the City of Vancouver.

Bryant Alexander Mackey and Barbara Carmichael, for the appellant Her Majesty the Queen in
Right of the Province of British Columbia.

Brian M. Samuels, Kieran A. G. Bridge and Jennifer W. Chan, for the respondent.

Mark R. Kindrachuk, Q.C., and Jeffrey G. Johnston, for the intervener the Attorney General of
Canada.

Robert E. Charney and Josh Hunter, for the intervener the Attorney General of Ontario.

Isabelle Harnois and Gilles Laporte, for the intervener the Attorney General of Quebec.

Kimberly R. Murray and Julian N. Falconer, for the intervener the Aboriginal Legal Services of
Toronto Inc.

Louis Sokolov and Heidi Rubin, for the intervener the Association in Defence of the Wrongly
Convicted.

Stuart Svonkin and Jana Stettner, for the intervener the Canadian Civil Liberties Association.

Vincent Westwick and Karine LeBlanc, for the intervener the Canadian Association of Chiefs of
Police.

Sean Dewart and Tim Gleason, for the intervener the Criminal Lawyers’ Association (Ontario).

Kent Roach and Grace Pastine, for the interveners the British Columbia Civil Liberties Association
and the David Asper Centre for Constitutional Rights.

The judgment of the Court was delivered by

THE CHIEF JUSTICE —

I. Introduction

[1] The Canadian Charter of Rights and Freedoms guarantees the fundamental rights and freedoms
of all Canadians and provides remedies for their breach. The first and most important remedy is the nullification
of laws that violate the Charter under s. 52(1) of the Constitution Act, 1982. This is supplemented by s. 24(2),
under which evidence obtained in breach of the Charter may be excluded if its admission would bring the
administration of justice into disrepute, and s. 24(1) — the provision at issue in this case — under which the
court is authorized to grant such remedies to individuals for infringement of Charter rights as it “considers
appropriate and just in the circumstances”.

[2] The respondent Ward’s Charter rights were violated by Vancouver and British Columbia
officials who detained him, strip searched his person and seized his car without cause. The trial judge awarded
Mr. Ward damages for the Charter breaches, and the majority of the Court of Appeal of British Columbia upheld
that award.

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[3] This appeal raises the question of when damages may be awarded under s. 24(1) of the Charter,
and what the amount of such damages should be. Although the Charter is 28 years old, authority on this
question is sparse, inviting a comprehensive analysis of the object of damages for Charter breaches and the
considerations that guide their award.

[4] I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate
and just. The first step in the inquiry is to establish that a Charter right has been breached. The second step is to
show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more
of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the
third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional
considerations that support a damage award and render damages inappropriate or unjust. The final step is to
assess the quantum of the damages.

[5] I conclude that damages were properly awarded for the strip search of Mr. Ward, but not
justified for the seizure of his car. I would therefore allow the appeal in part.

II. Facts

[6] On August 1, 2002, Prime Minister Chrétien participated in a ceremony to mark the opening of
a gate at the entrance to Vancouver’s Chinatown. During the ceremony, the Vancouver Police Department
(“VPD”) received information that an unknown individual intended to throw a pie at the Prime Minister, an
event that had occurred elsewhere two years earlier. The suspected individual was described as a white male, 30
to 35 years, 5' 9", with dark short hair, wearing a white golf shirt or T‑shirt with some red on it.

[7] Mr. Ward is a Vancouver lawyer who attended the August 1 ceremony. On the day, Mr. Ward, a
white male, had grey, collar‑length hair, was in his mid‑40s and was wearing a grey T‑shirt with some red on it.
Based on his appearance, Mr. Ward was identified — mistakenly — as the would-be pie-thrower. When the VPD
officers noticed him, Mr. Ward was running and appeared to be avoiding interception. The officers chased Mr.
Ward down and handcuffed him. Mr. Ward loudly protested his detention and created a disturbance, drawing the
attention of a local television camera crew. The television broadcast showed that Mr. Ward had a “very agitated
look on his face”, “appeared to be yelling for the benefit of the onlookers” and was “holding back” as he was
being escorted down the street.

[8] Mr. Ward was arrested for breach of the peace and taken to the police lockup in Vancouver,
which was under the partial management of provincial corrections officers. Upon his arrival, the corrections
officers instructed Mr. Ward to remove all his clothes in preparation for a strip search. Mr. Ward complied in part
but refused to take off his underwear. The officers did not insist on complete removal and Mr. Ward was never
touched during the search. After the search was completed, Mr. Ward was placed in a small cell where he spent
several hours before being released.

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[9] While Mr. Ward was at the lockup, VPD officers impounded his car for the purpose of
searching it once a search warrant had been obtained. VPD detectives subsequently determined that they did not
have grounds to obtain the required search warrant or evidence to charge Mr. Ward for attempted assault. Mr.
Ward was released from the lockup approximately 4.5 hours after he was arrested and several hours after the
Prime Minister had left Chinatown following the ceremony.

III. Judicial History

A. Supreme Court of British Columbia, 2007 BCSC 3 (CanLII), 63 B.C.L.R. (4th) 361

[10] Mr. Ward brought an action in tort and for breach of his Charter rights against the City, the
Province, and individual police and corrections officers for his arrest, detention, strip search, and car seizure.
Justice Tysoe found Mr. Ward’s arrest for breach of the peace to be lawful and dismissed the action against the
individual police and corrections officers. However, Tysoe J. held that — although they did not act in bad faith
and were not liable in tort for either incident — the Province’s strip search and the City’s vehicle seizure violated
Mr. Ward’s right to be free from unreasonable search and seizure under s. 8 of the Charter. In addition, Tysoe J.
found that the City breached Mr. Ward’s rights under s. 9 of the Charter and committed the tort of wrongful
imprisonment by keeping Mr. Ward in the police lockup longer than necessary.

[11] Tysoe J. assessed damages under s. 24(1) of the Charter at $100 for the seizure of the car and
$5,000 for the strip search. He rejected the governments’ argument that damages were an inappropriate remedy
for Charter breaches absent bad faith, abuse of power, or tortious conduct. In addition, Tysoe J. awarded $5,000
in damages for the wrongful imprisonment. This award is not at issue on this appeal.

B. British Columbia Court of Appeal, 2009 BCCA 23 (CanLII), 89 B.C.L.R. (4th) 217

[12] Justice Low, Finch C.J.B.C. concurring, upheld Tysoe J.’s ruling, agreeing with Mr. Ward that
bad faith, abuse of power, or tortious conduct are not necessary requirements for the awarding of Charter
damages.

[13] Justice Saunders, dissenting, would have allowed the Province and City appeals, holding that
damages cannot be awarded where the police did not act in bad faith and simply made a mistake as to the proper
course of action.

IV. Constitutional Provisions

[14] Section 24(1) of the Charter provides as follows:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied
may apply to a court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.

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V. Issues

[15] The issues are the following:

A. When are damages under s. 24(1) available?

1. The language of s. 24(1) and the nature of Charter damages;
2. Step one: Proof of a Charter breach;
3. Step two: Functional justification of damages;
4. Step three: Countervailing factors;
5. Step four: Quantum of s. 24(1) damages;
6. Forum and procedure.

B. Application to the Facts

1. Damages for the strip search;
2. Damages for the car seizure.

VI. Analysis

A. When Are Damages Under Section 24(1) Available?

(1) The Language of Section 24(1) and the Nature of Charter Damages

[16] Section 24(1) empowers courts of competent jurisdiction to grant “appropriate and just”
remedies for Charter breaches. This language invites a number of observations.

[17] First, the language of the grant is broad. As McIntyre J. observed, “[i]t is difficult to imagine
language which could give the court a wider and less fettered discretion”: Mills v. The Queen, 1986 CanLII 17
(SCC), [1986] 1 S.C.R. 863, at p. 965. The judge of “competent jurisdiction” has broad discretion to determine
what remedy is appropriate and just in the circumstances of a particular case.

[18] Second, it is improper for courts to reduce this discretion by casting it in a strait-jacket of
judicially prescribed conditions. To quote McIntyre J. in Mills once more, “[i]t is impossible to reduce this wide
discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to
pre-empt or cut down this wide discretion”: Mills, at p. 965.

[19] Third, the prohibition on cutting down the ambit of s. 24(1) does not preclude judicial
clarification of when it may be “appropriate and just” to award damages. The phrase “appropriate and just”
limits what remedies are available. The court’s discretion, while broad, is not unfettered. What is appropriate
and just will depend on the facts and circumstances of the particular case. Prior cases may offer guidance on
what is appropriate and just in a particular situation.

[20] The general considerations governing what constitutes an appropriate and just remedy under s.
24(1) were set out by Iacobucci and Arbour JJ. in Doucet‑Boudreau v. Nova Scotia (Minister of Education),
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2003 SCC 62 (CanLII), [2003] 3 S.C.R. 3. Briefly, an appropriate and just remedy will: (1) meaningfully
vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of
our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function
and powers of a court; and (4) be fair to the party against whom the order is made: Doucet‑Boudreau, at paras.
55‑58.

[21] Damages for breach of a claimant’s Charter rights may meet these conditions. They may
meaningfully vindicate the claimant’s rights and freedoms. They employ a means well-recognized within our
legal framework. They are appropriate to the function and powers of a court. And, depending on the
circumstances and the amount awarded, they can be fair not only to the claimant whose rights were breached,
but to the state which is required to pay them. I therefore conclude that s. 24(1) is broad enough to include the
remedy of damages for Charter breach. That said, granting damages under the Charter is a new endeavour, and
an approach to when damages are appropriate and just should develop incrementally. Charter damages are only
one remedy amongst others available under s. 24(1), and often other s. 24(1) remedies will be more responsive
to the breach.

[22] The term “damages” conveniently describes the remedy sought in this case. However, it should
always be borne in mind that these are not private law damages, but the distinct remedy of constitutional
damages. As Thomas J. notes in Dunlea v. Attorney-General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136, at para.
81, a case dealing with New Zealand’s Bill of Rights Act 1990, an action for public law damages “is not a private
law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] public law action
directly against the state for which the state is primarily liable”. In accordance with s. 32 of the Charter, this is
equally so in the Canadian constitutional context. The nature of the remedy is to require the state (or society
writ large) to compensate an individual for breaches of the individual’s constitutional rights. An action for
public law damages — including constitutional damages — lies against the state and not against individual
actors. Actions against individual actors should be pursued in accordance with existing causes of action.
However, the underlying policy considerations that are engaged when awarding private law damages against
state actors may be relevant when awarding public law damages directly against the state. Such considerations
may be appropriately kept in mind.

(2) Step One: Proof of a Charter Breach

[23] Section 24(1) is remedial. The first step, therefore, is to establish a Charter breach. This is the
wrong on which the claim for damages is based.

(3) Step Two: Functional Justification of Damages

[24] A functional approach to damages finds damages to be appropriate and just to the extent that
they serve a useful function or purpose. This approach has been adopted in awarding non‑pecuniary damages in
personal injury cases (Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229), and, in
my view, a similar approach is appropriate in determining when damages are “appropriate and just” under s.
24(1) of the Charter.

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[25] I therefore turn to the purposes that an order for damages under s. 24(1) may serve. For
damages to be awarded, they must further the general objects of the Charter. This reflects itself in three
interrelated functions that damages may serve. The function of compensation, usually the most prominent
function, recognizes that breach of an individual’s Charter rights may cause personal loss which should be
remedied. The function of vindication recognizes that Charter rights must be maintained, and cannot be allowed
to be whittled away by attrition. Finally, the function of deterrence recognizes that damages may serve to deter
future breaches by state actors.

[26] These functions of s. 24(1) damages are supported by foreign constitutional jurisprudence and,
by analogy, foreign jurisprudence arising in the statutory human rights context.

[27] Compensation has been cited by Lord Woolf C.J. (speaking of the European Convention of
Human Rights) as “fundamental”. In most cases, it is the most prominent of the three functions that Charter
damages may serve. The goal is to compensate the claimant for the loss caused by the Charter breach; “[t]he
applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not
been infringed”: Anufrijeva v. Southwark London Borough Council, [2003] EWCA Civ 1406, [2004] Q.B. 1124,
at para. 59, per Lord Woolf C.J. Compensation focuses on the claimant’s personal loss: physical, psychological
and pecuniary. To these types of loss must be added harm to the claimant’s intangible interests. In the public law
damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and
anxiety: Dunlea; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971);
Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to intangible interests
effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible
interests are harmed should not be precluded from recovering damages simply because she cannot prove a
substantial psychological injury.

[28] Vindication, in the sense of affirming constitutional values, has also been recognized as a valid
object of damages in many jurisdictions: see Fose v. Minister of Safety and Security, 1997 (3) SA 786 (C.C.), at
para. 55, for a summary of the international jurisprudence. Vindication focuses on the harm the infringement
causes society. As Didcott J. observed in Fose, violations of constitutionally protected rights harm not only their
particular victims, but society as a whole. This is because they “impair public confidence and diminish public
faith in the efficacy of the [constitutional] protection”: Fose, at para. 82. While one may speak of vindication as
underlining the seriousness of the harm done to the claimant, vindication as an object of constitutional damages
focuses on the harm the Charter breach causes to the state and to society.

[29] Finally, deterrence of future breaches of the right has also been widely recognized as a valid
object of public law damages: e.g., Attorney General of Trinidad and Tobago v. Ramanoop, [2005] UKPC 15,
[2006] 1 A.C. 328, at para. 19; Taunoa, at para. 259; Fose, at para. 96; Smith v. Wade, 461 U.S. 30 (1983), at p.
49. Deterrence, like vindication, has a societal purpose. Deterrence seeks to regulate government behaviour,
generally, in order to achieve compliance with the Constitution. This purpose is similar to the criminal
sentencing object of “general deterrence”, which holds that the example provided by the punishment imposed
on a particular offender will dissuade potential criminals from engaging in criminal activity. When general
deterrence is factored in the determination of the sentence, the offender is punished more severely, not because
he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in
similar criminal activity: R. v. B.W.P., 2006 SCC 27 (CanLII), [2006] 1 S.C.R. 941. Similarly, deterrence as an

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object of Charter damages is not aimed at deterring the specific wrongdoer, but rather at influencing government
behaviour in order to secure state compliance with the Charter in the future.

[30] In most cases, all three objects will be present. Harm to the claimant will evoke the need for
compensation. Vindication and deterrence will support the compensatory function and bolster the
appropriateness of an award of damages. However, the fact that the claimant has not suffered personal loss does
not preclude damages where the objectives of vindication or deterrence clearly call for an award. Indeed, the
view that constitutional damages are available only for pecuniary or physical loss has been widely rejected in
other constitutional democracies: see, e.g., Anufrijeva; Fose; Taunoa; Smith; and Ramanoop.

[31] In summary, damages under s. 24(1) of the Charter are a unique public law remedy, which may
serve the objectives of: (1) compensating the claimant for loss and suffering caused by the breach; (2)
vindicating the right by emphasizing its importance and the gravity of the breach; and (3) deterring state agents
from committing future breaches. Achieving one or more of these objects is the first requirement for
“appropriate and just” damages under s. 24(1) of the Charter.

(4) Step Three: Countervailing Factors

[32] As discussed, the basic requirement for the award of damages to be “appropriate and just” is
that the award must be functionally required to fulfill one or more of the objects of compensation, vindication of
the right, or deterrence of future Charter breaches.

[33] However, even if the claimant establishes that damages are functionally justified, the state may
establish that other considerations render s. 24(1) damages inappropriate or unjust. A complete catalogue of
countervailing considerations remains to be developed as the law in this area matures. At this point, however,
two considerations are apparent: the existence of alternative remedies and concerns for good governance.

[34] A functional approach to damages under s. 24(1) means that if other remedies adequately meet
the need for compensation, vindication and/or deterrence, a further award of damages under s. 24(1) would serve
no function and would not be “appropriate and just”. The Charter entered an existent remedial arena which
already housed tools to correct violative state conduct. Section 24(1) operates concurrently with, and does not
replace, these areas of law. Alternative remedies include private law remedies for actions for personal injury,
other Charter remedies like declarations under s. 24(1), and remedies for actions covered by legislation
permitting proceedings against the Crown.

[35] The claimant must establish basic functionality having regard to the objects of constitutional
damages. The evidentiary burden then shifts to the state to show that the engaged functions can be fulfilled
through other remedies. The claimant need not show that she has exhausted all other recourses. Rather, it is for
the state to show that other remedies are available in the particular case that will sufficiently address the breach.
For example, if the claimant has brought a concurrent action in tort, it is open to the state to argue that, should
the tort claim be successful, the resulting award of damages would adequately address the Charter breach. If that
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were the case, an award of Charter damages would be duplicative. In addition, it is conceivable that another
Charter remedy may, in a particular case, fulfill the function of Charter damages.

[36] The existence of a potential claim in tort does not therefore bar a claimant from obtaining
damages under the Charter. Tort law and the Charter are distinct legal avenues. However, a concurrent action
in tort, or other private law claim, bars s. 24(1) damages if the result would be double compensation: Simpson v.
Attorney-General, [1994] 3 N.Z.L.R. 667 (C.A.), at p. 678.

[37] Declarations of Charter breach may provide an adequate remedy for the Charter breach,
particularly where the claimant has suffered no personal damage. Considering declarations in Taunoa, at para.
368, McGrath J. writes:

The court’s finding of a breach of rights and a declaration to that effect will often not only be
appropriate relief but may also in itself be a sufficient remedy in the circumstances to vindicate a
plaintiff’s right. That will often be the case where no damage has been suffered that would give rise
to a claim under private causes of action and, in the circumstances, if there is no need to deter
persons in the position of the public officials from behaving in a similar way in the future. If in all
the circumstances the court’s pronouncement that there has been a breach of rights is a sufficiently
appropriate remedy to vindicate the right and afford redress then, subject to any questions of costs,
that will be sufficient to meet the primary remedial objective.

[38] Another consideration that may negate the appropriateness of s. 24(1) damages is concern for
effective governance. Good governance concerns may take different forms. At one extreme, it may be argued
that any award of s. 24(1) damages will always have a chilling effect on government conduct, and hence will
impact negatively on good governance. The logical conclusion of this argument is that s. 24(1) damages would
never be appropriate. Clearly, this is not what the Constitution intends. Moreover, insofar as s. 24(1) damages
deter Charter breaches, they promote good governance. Compliance with Charter standards is a foundational
principle of good governance.

[39] In some situations, however, the state may establish that an award of Charter damages would
interfere with good governance such that damages should not be awarded unless the state conduct meets a
minimum threshold of gravity. This was the situation in Mackin v. New Brunswick (Minister of Finance), 2002
SCC 13 (CanLII), [2002] 1 S.C.R. 405, where the claimant sought damages for state conduct pursuant to a valid
statute. The Court held that the action must be struck on the ground that duly enacted laws should be enforced
until declared invalid, unless the state conduct under the law was “clearly wrong, in bad faith or an abuse of
power”: para. 78. The rule of law would be undermined if governments were deterred from enforcing the law by
the possibility of future damage awards in the event the law was, at some future date, to be declared invalid.
Thus, absent threshold misconduct, an action for damages under s. 24(1) of the Charter cannot be combined
with an action for invalidity based on s. 52 of the Constitution Act, 1982: Mackin, at para. 81.

[40] The Mackin principle recognizes that the state must be afforded some immunity from liability in
damages resulting from the conduct of certain functions that only the state can perform. Legislative and policy-

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making functions are one such area of state activity. The immunity is justified because the law does not wish to
chill the exercise of policy-making discretion. As Gonthier J. explained:

The limited immunity given to government is specifically a means of creating a balance between the
protection of constitutional rights and the need for effective government. In other words, this
doctrine makes it possible to determine whether a remedy is appropriate and just in the
circumstances. Consequently, the reasons that inform the general principle of public law are also
relevant in a Charter context. [para. 79]

[41] The government argues that the Mackin principle applies in this case, and, in the absence of
state conduct that is at least “clearly wrong”, bars Mr. Ward’s claim. I cannot accept this submission. Mackin
stands for the principle that state action taken under a statute which is subsequently declared invalid will not
give rise to public law damages because good governance requires that public officials carry out their duties
under valid statutes without fear of liability in the event that the statute is later struck down. The present is not a
situation of state action pursuant to a valid statute that was subsequently declared invalid. Nor is the rationale
animating the Mackin principle — that duly enacted laws should be enforced until declared invalid — applicable
in the present situation. Thus, the Mackin immunity does not apply to this case.

[42] State conduct pursuant to a valid statute may not be the only situation in which the state might
seek to show that s. 24(1) damages would deter state agents from doing what is required for effective
governance, although no others have been established in this case. It may be that in the future other situations
may be recognized where the appropriateness of s. 24(1) damages could be negated on grounds of effective
governance.

[43] Such concerns may find expression, as the law in this area matures, in various defences to s.
24(1) claims. Mackin established a defence of immunity for state action under valid statutes subsequently
declared invalid, unless the state conduct is “clearly wrong, in bad faith or an abuse of power” (para. 78). If and
when other concerns under the rubric of effective governance emerge, these may be expected to give rise to
analogous public law defences. By analogy to Mackin and the private law, where the state establishes that s.
24(1) damages raise governance concerns, it would seem a minimum threshold, such as clear disregard for the
claimant’s Charter rights, may be appropriate. Different situations may call for different thresholds, as is the
case at private law. Malicious prosecution, for example, requires that “malice” be proven because of the highly
discretionary and quasi-judicial role of prosecutors (Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3
S.C.R. 339), while negligent police investigation, which does not involve the same quasi-judicial decisions as to
guilt or innocence or the evaluation of evidence according to legal standards, contemplates the lower
“negligence” standard (Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII),
[2007] 3 S.C.R. 129). When appropriate, private law thresholds and defences may offer guidance in determining
whether s. 24(1) damages would be “appropriate and just”. While the threshold for liability under the Charter
must be distinct and autonomous from that developed under private law, the existing causes of action against
state actors embody a certain amount of “practical wisdom” concerning the type of situation in which it is or is
not appropriate to make an award of damages against the state. Similarly, it may be necessary for the court to
consider the procedural requirements of alternative remedies. Procedural requirements associated with existing
remedies are crafted to achieve a proper balance between public and private interests, and the underlying policy
considerations of these requirements should not be negated by recourse to s. 24(1) of the Charter. As stated
earlier, s. 24(1) operates concurrently with, and does not replace, the general law. These are complex matters

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which have not been explored on this appeal. I therefore leave the exact parameters of future defences to future
cases.

[44] I find it useful to add a comment on the judgment of our Court in Béliveau St-Jacques v.
Fédération des employées et employés de services publics inc., 1996 CanLII 208 (SCC), [1996] 2 S.C.R. 345.
Béliveau St-Jacques is not determinative of the availability of the public law remedy of damages under s. 24(1).
The judgment raised specific issues concerning the interpretation of ss. 49 and 51 of the Quebec Charter of
human rights and freedoms, R.S.Q., c. C-12, and its interaction with the statutory regime set up under the Act
respecting industrial accidents and occupational diseases, R.S.Q., c. A-3.001.

[45] If the claimant establishes breach of his Charter rights and shows that an award of damages
under s. 24(1) of the Charter would serve a functional purpose, having regard to the objects of s. 24(1) damages,
and the state fails to negate that the award is “appropriate and just”, the final step is to determine the appropriate
amount of the damages.

(5) Step Four: Quantum of Section 24(1) Damages

[46] The watchword of s. 24(1) is that the remedy must be “appropriate and just”. This applies to the
amount, or quantum, of damages awarded as much as to the initial question of whether damages are a proper
remedy.

[47] As discussed earlier, damages may be awarded to compensate the claimant for his loss, to
vindicate the right or to deter future violations of the right. These objects, the presence and force of which vary
from case to case, determine not only whether damages are appropriate, but also the amount of damages
awarded. Generally, compensation will be the most important object, and vindication and deterrence will play
supporting roles. This is all the more so because other Charter remedies may not provide compensation for the
claimant’s personal injury resulting from the violation of his Charter rights. However, as discussed earlier, cases
may arise where vindication or deterrence play a major and even exclusive role.

[48] Where the objective of compensation is engaged, the concern is to restore the claimant to the
position she would have been in had the breach not been committed, as discussed above. As in a tort action, any
claim for compensatory damages must be supported by evidence of the loss suffered.

[49] In some cases, the Charter breach may cause the claimant pecuniary loss. Injuries, physical and
psychological, may require medical treatment, with attendant costs. Prolonged detention may result in loss of
earnings. Restitutio in integrum requires compensation for such financial losses.

[50] In other cases, like this one, the claimant’s losses will be non-pecuniary. Non-pecuniary
damages are harder to measure. Yet they are not by that reason to be rejected. Again, tort law provides
assistance. Pain and suffering are compensable. Absent exceptional circumstances, compensation is fixed at a

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fairly modest conventional rate, subject to variation for the degree of suffering in the particular case. In extreme
cases of catastrophic injury, a higher but still conventionally determined award is given on the basis that it serves
the function purpose of providing substitute comforts and pleasures: Andrews v. Grand & Toy.

[51] When we move from compensation to the objectives of vindication and deterrence, tort law is
less useful. Making the appropriate determinations is an exercise in rationality and proportionality and will
ultimately be guided by precedent as this important chapter of Charter jurisprudence is written by Canada’s
courts. That said, some initial observations may be made.

[52] A principal guide to the determination of quantum is the seriousness of the breach, having
regard to the objects of s. 24(1) damages. The seriousness of the breach must be evaluated with regard to the
impact of the breach on the claimant and the seriousness of the state misconduct: see, in the context of s. 24(2),
R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353. Generally speaking, the more egregious the conduct
and the more serious the repercussions on the claimant, the higher the award for vindication or deterrence will
be.

[53] Just as private law damages must be fair to both the plaintiff and the defendant, so s. 24(1)
damages must be fair — or “appropriate and just” — to both the claimant and the state. The court must arrive at
a quantum that respects this. Large awards and the consequent diversion of public funds may serve little
functional purpose in terms of the claimant’s needs and may be inappropriate or unjust from the public
perspective. In considering what is fair to the claimant and the state, the court may take into account the public
interest in good governance, the danger of deterring governments from undertaking beneficial new policies and
programs, and the need to avoid diverting large sums of funds from public programs to private interests.

[54] Courts in other jurisdictions where an award of damages for breach of rights is available have
generally been careful to avoid unduly high damage awards. This may reflect the difficulty of assessing what is
required to vindicate the right and deter future breaches, as well as the fact that it is society as a whole that is
asked to compensate the claimant. Nevertheless, to be “appropriate and just”, an award of damages must
represent a meaningful response to the seriousness of the breach and the objectives of compensation, upholding
Charter values, and deterring future breaches. The private law measure of damages for similar wrongs will
often be a useful guide. However, as Lord Nicholls warns in Ramanoop, at para. 18, “this measure is no more
than a guide because . . . the violation of the constitutional right will not always be coterminous with the cause
of action at law”.

[55] In assessing s. 24(1) damages, the court must focus on the breach of Charter rights as an
independent wrong, worthy of compensation in its own right. At the same time, damages under s. 24(1) should
not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal
loss is at issue.

[56] A final word on exemplary or punitive damages. In Mackin, Justice Gonthier speculated that
“[i]n theory, a plaintiff could seek compensatory and punitive damages by way of ‘appropriate and just’ remedy
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under s. 24(1) of the Charter”: para. 79. The reality is that public law damages, in serving the objects of
vindication and deterrence, may assume a punitive aspect. Nevertheless, it is worth noting a general reluctance
in the international community to award purely punitive damages: see Taunoa, at paras. 319‑21.

[57] To sum up, the amount of damages must reflect what is required to functionally serve the
objects of compensation, vindication of the right and deterrence of future breaches, insofar as they are engaged
in a particular case, having regard to the impact of the breach on the claimant and the seriousness of the state
conduct. The award must be appropriate and just from the perspective of the claimant and the state.

(6) Forum and Procedure

[58] For a tribunal to grant a Charter remedy under s. 24(1), it must have the power to decide
questions of law and the remedy must be one that the tribunal is authorized to grant: R. v. Conway, 2010 SCC
22 (CanLII), [2010] 1 S.C.R. 765. Generally, the appropriate forum for an award of damages under s. 24(1) is a
court which has the power to consider Charter questions and which by statute or inherent jurisdiction has the
power to award damages. Provincial criminal courts are not so empowered and thus do not have the power to
award damages under s. 24(1).

[59] As was done here, the claimant may join a s. 24(1) claim with a tort claim. It may be useful to
consider the tort claim first, since if it meets the objects of Charter damages, recourse to s. 24(1) will be
unnecessary. This may add useful context and facilitate the s. 24(1) analysis. This said, it is not essential that the
claimant exhaust her remedies in private law before bringing a s. 24(1) claim.

B. Application to the Facts

[60] At trial, Justice Tysoe held that the provincial correction officers’ strip search and the
Vancouver Police Department’s vehicle seizure violated Mr. Ward’s right to be free from unreasonable search
and seizure under s. 8 of the Charter. There are thus two distinct claims to consider.

(1) Damages for the Strip Search

[61] The first question is whether Mr. Ward has established entitlement to the s. 24(1) remedy of
damages. This requires him to show: (1) a breach of his Charter rights; and (2) that an award of damages would
serve a functional purpose in the circumstances, having regard to the objects of s. 24(1) damages. If these are
established, the burden shifts to the state (step 3) to show why, having regard to countervailing factors, an award
of damages under s. 24(1) of the Charter would be inappropriate. If the state fails to negate s. 24(1) damages,
the inquiry moves to the final step, assessment of the appropriate amount of the damages.

[62] Here the first step is met. Justice Tysoe found that the strip search violated Mr. Ward’s personal
rights under s. 8 of the Charter. This finding is not challenged on this appeal. Nor is it suggested that the
British Columbia Supreme Court is not an appropriate forum for the action.

[63] The second question is whether damages would serve a functional purpose by serving one or
more of the objects of s. 24(1) damages — compensation, vindication and deterrence.
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[64] In this case, the need for compensation bulks large. Mr. Ward’s injury was serious. He had a
constitutional right to be free from unreasonable search and seizure, which was violated in an egregious fashion.
Strip searches are inherently humiliating and degrading regardless of the manner in which they are carried out
and thus constitute significant injury to an individual’s intangible interests: R. v. Golden, 2001 SCC 83 (CanLII),
[2001] 3 S.C.R. 679, at para. 90.

[65] The corrections officers’ conduct which caused the breach of Mr. Ward’s Charter rights was
also serious. Minimum sensitivity to Charter concerns within the context of the particular situation would have
shown the search to be unnecessary and violative. Mr. Ward did not commit a serious offence, he was not
charged with an offence associated with evidence being hidden on the body, no weapons were involved and he
was not known to be violent or to carry weapons. Mr. Ward did not pose a risk of harm to himself or others, nor
was there any suggestion that any of the officers believed that he did. In these circumstances, a reasonable
person would understand that the indignity resulting from the search was disproportionate to any benefit which
the search could have provided. In addition, without asking officers to be conversant with the details of court
rulings, it is not too much to expect that police would be familiar with the settled law that routine strip searches
are inappropriate where the individual is being held for a short time in police cells, is not mingling with the
general prison population, and where the police have no legitimate concerns that the individual is concealing
weapons that could be used to harm themselves or others: Golden, at para. 97.

[66] In sum, the Charter breach significantly impacted on Mr. Ward’s person and rights and the
police conduct was serious. The impingement on Mr. Ward calls for compensation. Combined with the police
conduct, it also engages the objects of vindication of the right and deterrence of future breaches. It follows that
compensation is required in this case to functionally fulfill the objects of public law damages.

[67] The next question is whether the state has established countervailing factors that would render s.
24(1) damages inappropriate or unjust.

[68] The state has not established that alternative remedies are available to achieve the objects of
compensation, vindication or deterrence with respect to the strip search. Mr. Ward sued the officers for assault,
as well as the City and the Province for negligence. These claims were dismissed and their dismissal was not
appealed to this Court. While this defeated Mr. Ward’s claim in tort, it did not change the fact that his right under
s. 8 of the Charter to be secure against unreasonable search and seizure was violated. No tort action was
available for that violation and a declaration will not satisfy the need for compensation. Mr. Ward’s only
recourse is a claim for damages under s. 24(1) of the Charter. Nor has the state established that an award of s.
24(1) damages is negated by good governance considerations, such as those raised in Mackin.

[69] I conclude that damages for the strip search of Mr. Ward are required in this case to functionally
fulfill the objects of public law damages, and therefore are prima facie “appropriate and just”. The state has not
negated this. It follows that damages should be awarded for this breach of Mr. Ward’s Charter rights.

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[70] This brings us to the issue of quantum. As discussed earlier, the amount of damages must
reflect what is required to functionally fulfill the relevant objects of s. 24(1) compensation, while remaining fair
to both the claimant and the state.

[71] The object of compensation focuses primarily on the claimant’s personal loss: physical,
psychological, pecuniary, and harm to intangible interests. The claimant should, in so far as possible, be placed
in the same position as if his Charter rights had not been infringed. Strip searches are inherently humiliating
and thus constitute a significant injury to an individual’s intangible interests regardless of the manner in which
they are carried out. That said, the present search was relatively brief and not extremely disrespectful, as strip
searches go. It did not involve the removal of Mr. Ward’s underwear or the exposure of his genitals. Mr. Ward
was never touched during the search and there is no indication that he suffered any resulting physical or
psychological injury. While Mr. Ward’s injury was serious, it cannot be said to be at the high end of the
spectrum. This suggests a moderate damages award.

[72] The objects of vindication and deterrence engage the seriousness of the state conduct. The
corrections officers’ conduct was serious and reflected a lack of sensitivity to Charter concerns. That said, the
officers’ action was not intentional, in that it was not malicious, high-handed or oppressive. In these
circumstances, the objects of vindication and deterrence do not require an award of substantial damages against
the state.

[73] Considering all the factors, including the appropriate degree of deference to be paid to the trial
judge’s exercise of remedial discretion, I conclude that the trial judge’s $5,000 damage award was appropriate.

(2) Damages for the Car Seizure

[74] As with the strip search, we must determine whether Mr. Ward has established entitlement to the
s. 24(1) remedy of damages to compensate for the constitutional wrong he suffered due to the City’s seizure of
his vehicle. Again, this requires determining: (1) breach of Charter right; (2) whether an award of damages
would serve a functional purpose, having regard to the objects of s. 24(1) damages; (3) whether the state has
established countervailing factors negating an award of s. 24(1) damages; and (4) quantum, if the right to
damages is established.

[75] The trial judge found that the seizure of the car violated Mr. Ward’s rights under s. 8 of the
Charter. This finding is not contested and thus satisfies the first requirement.

[76] The next question is whether Mr. Ward has established that damages under s. 24(1) for the car
seizure are appropriate and just from a functional perspective.

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[77] The object of compensation is not engaged by the seizure of the car. The trial judge found that
Mr. Ward did not suffer any injury as a result of the seizure. His car was never searched and, upon his release
from lockup, Mr. Ward was driven to the police compound to pick up the vehicle. Nor are the objects of
vindication of the right and deterrence of future breaches compelling. While the seizure was wrong, it was not
of a serious nature. The police officers did not illegally search the car, but rather arranged for its towing under
the impression that it would be searched once a warrant had been obtained. When the officers determined that
they did not have grounds to obtain the required warrant, the vehicle was made available for pickup.

[78] I conclude that a declaration under s. 24(1) that the vehicle seizure violated Mr. Ward’s right to
be free from unreasonable search and seizure under s. 8 of the Charter adequately serves the need for
vindication of the right and deterrence of future improper car seizures.

VII. Disposition

[79] The appeal is allowed in part. The award against the City in the amount of $100 is set aside,
substituted by a declaration under s. 24(1) that the vehicle seizure violated Mr. Ward’s right to be free from
unreasonable search and seizure under s. 8 of the Charter. The award of damages against the Province in the
sum of $5,000 for breach of Mr. Ward’s s. 8 Charter rights is confirmed.

[80] We have been informed of a pre‑existing agreement between Mr. Ward and the Province
regarding costs and, as such, no cost order is made between Mr. Ward and the Province. No costs are awarded to
or against the City.

Appeal allowed in part.

Solicitor for the appellant the City of Vancouver: City of Vancouver, Vancouver.

Solicitor for the appellant Her Majesty the Queen in Right of the Province of British
Columbia: Attorney General of British Columbia, Victoria.

Solicitors for the respondent: Samuels & Company, Vancouver.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada,
Saskatoon.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Ste‑Foy.

Solicitors for the intervener the Aboriginal Legal Services of Toronto Inc.: Aboriginal Legal
Services of Toronto Inc., Toronto; Falconer Charney, Toronto.

Solicitors for the intervener the Association in Defence of the Wrongly Convicted: Sack Goldblatt
Mitchell, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Torys, Toronto.
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Solicitor for the intervener the Canadian Association of Chiefs of Police: Ottawa Police Service,
Ottawa.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Sack Goldblatt Mitchell,
Toronto.

Solicitor for the intervener the British Columbia Civil Liberties Association and the David Asper
Centre for Constitutional Rights: University of Toronto, Toronto.

Federation of Law Societies of Canada

By for the law societies members of the

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 58

Lizotte v. Aviva Insurance Company of Canada

CanLII - 2016 SCC 52 (CanLII)

1/6/2019 CanLII - 2016 SCC 52 (CanLII) 59

Lizotte v. Aviva Insurance Company of Canada, [2016] 2 SCR 521, 2016 SCC 52
(CanLII)

Date: 2016-11-25
File 36373
number:
Citation: Lizotte v. Aviva Insurance Company of Canada, [2016] 2 SCR 521, 2016 SCC 52 (CanLII), <http://canlii.ca/t/gvskp>,
retrieved on 2019-01-06

SUPREME COURT OF CANADA

C : Lizotte v. Aviva Insurance Company of A : March 24, 2016

Canada, 2016 SCC 52, [2016] 2 S.C.R. 521 J : November 25, 2016
D : 36373

B :
Karine Lizotte, in her capacity as assistant syndic
of the Chambre de l’assurance de dommages
Appellant

and

Aviva Insurance Company of Canada and

Traders General Insurance Company
Respondents

- and -

Canadian Bar Association,

Advocates’ Society and Barreau du Québec
Interveners

O E T

C : McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

R J : Gascon J. (McLachlin C.J. and Abella, Cromwell, Moldaver,

(paras. 1 to 71) Karakatsanis, Wagner, Côté and Brown JJ. concurring)

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Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521

Karine Lizotte, in her capacity as assistant syndic

of the Chambre de l’assurance de dommages Appellant

v.

Aviva Insurance Company of Canada and

Traders General Insurance Company Respondents

and

Canadian Bar Association,

Advocates’ Society and
Barreau du Québec Interveners

Indexed as: Lizotte v. Aviva Insurance Company of Canada

2016 SCC 52

File No.: 36373.

2016: March 24; 2016: November 25.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Law of professions — Ethics — Powers of investigation of syndic — Production of documents — Litigation

privilege — Inquiry by syndic of Chambre de l’assurance de dommages into conduct of claims adjuster — Whether statutory
provision creating obligation to produce “any . . . document” at request of syndic can be interpreted as abrogating litigation
privilege — Act respecting the distribution of financial products and services, CQLR, c. D‑9.2, s. 337.

In the course of an inquiry into a claims adjuster, the assistant syndic of the Chambre de l’assurance de
dommages (the “syndic”) asked insurer A to send her a complete copy of its claim file with respect to one of its insured. The
syndic based this request on s. 337 of the Act respecting the distribution of financial products and services (“ADFPS”). In
response, the insurer produced a number of documents, but explained that it had withheld some on the basis that they were

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covered either by solicitor-client privilege or by litigation privilege. The syndic responded to this refusal by filing a motion
for a declaratory judgment.

At the hearing of the motion, the syndic conceded that solicitor-client privilege could be asserted against her
and that the issue before the court was therefore limited to litigation privilege. She argued that s. 337 ADFPS was sufficient
to lift the privilege, because it created an obligation to produce “any . . . document” concerning the activities of a
representative whose professional conduct is being investigated by the Chambre de l’assurance de dommages. The Superior
Court concluded that litigation privilege cannot be abrogated absent an express provision. The Court of Appeal upheld the
Superior Court’s judgment, holding that even though litigation privilege is distinguishable from solicitor-client privilege, it
is, to the same extent, a fundamentally important principle that cannot be overridden without express language.

Held: The appeal should be dismissed.

Litigation privilege is a common law rule that gives rise to an immunity from disclosure for documents and
communications whose dominant purpose is preparation for litigation. This privilege has sometimes been confused with
solicitor‑client privilege, both at common law and in Quebec law. However, since Blank v. Canada (Minister of Justice),
2006 SCC 39 (CanLII), [2006] 2 S.C.R. 319, it has been settled law that solicitor‑client privilege and litigation privilege are
distinct: the purpose of solicitor‑client privilege is to protect a relationship, while that of litigation privilege is to ensure the
efficacy of the adversarial process; solicitor‑client privilege is permanent, whereas litigation privilege is temporary and
lapses when the litigation ends; and, finally, litigation privilege applies to unrepresented parties and to non-confidential
documents, and is not directed at communications between solicitors and clients as such.

The differences identified in Blank between solicitor‑client privilege and litigation privilege have been adopted
in Quebec law. Thus, despite certain common characteristics, litigation privilege has not been absorbed into, and does not
constitute a component or subcategory of, the institution of professional secrecy.

Although litigation privilege is distinguishable from solicitor‑client privilege, it is nevertheless a class privilege
and gives rise to a presumption of inadmissibility for a class of communications, namely those whose dominant purpose is
preparation for litigation. Thus, any document that meets the conditions for the application of litigation privilege will be
protected by an immunity from disclosure unless the case is one to which one of the exceptions to that privilege applies.

Litigation privilege is subject to clearly defined exceptions, not to a case‑by‑case balancing test. In the context
of privileges, the exercise of balancing competing interests is associated with case‑by‑case privileges, not class privileges.
The exceptions that apply to solicitor‑client privilege are all applicable to litigation privilege. These include the exceptions
relating to public safety, to the innocence of the accused and to criminal communications. They also include the exception
recognized in Blank for evidence of the claimant party’s abuse of process or similar blameworthy conduct. Other exceptions
may be identified in the future, but they will always be based on narrow classes that apply in specific circumstances.

Finally, litigation privilege can be asserted against third parties, including third party investigators who have a
duty of confidentiality. It would not be appropriate to exclude third parties from the application of this privilege or to expose
the privilege to the uncertainties of disciplinary and legal proceedings that could result in the disclosure of documents that
would otherwise be protected. Any uncertainty in this regard could have a chilling effect on parties preparing for litigation,
who may fear that documents otherwise covered by litigation privilege could be made public.

In this case, the litigation privilege invoked by the insurer can be asserted against the syndic, and none of the
exceptions to its application justify lifting the privilege. Moreover, this privilege cannot be lifted by applying s. 337 ADFPS.
There is a robust line of authority according to which a party should not be denied the right to claim litigation privilege
without clear and explicit legislative language to that effect. It was the fundamental importance of that privilege that led the
Court to require explicit language for its abrogation. There is no question that litigation privilege does not have the same
status as solicitor‑client privilege, and it is less absolute than the latter. Nonetheless, like solicitor‑client privilege, litigation
privilege is fundamental to the proper functioning of our legal system and is central to the adversarial system that Quebec
shares with the other provinces. The parties’ ability to confidently develop strategies knowing that they cannot be compelled
to disclose them is essential to the effectiveness of the adversarial process. Litigation privilege cannot therefore be abrogated
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by inference, and clear, explicit and unequivocal language is required in order to lift it. However, s. 337 ADFPS, on which
the syndic is relying, merely authorizes a request for the production of “any . . . document” without further precision. This is
a general production provision that does not specifically indicate that the production must include records for which
privilege is claimed. A provision that merely refers to the production of “any . . . document” does not contain sufficiently
clear, explicit and unequivocal language to abrogate litigation privilege. It follows that the insurer was entitled to assert
litigation privilege in this case and to refuse to provide the syndic with the documents that fall within the scope of that
privilege.

Cases Cited

Applied: Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 (CanLII), [2008]
2 S.C.R. 574; Blank v. Canada (Minister of Justice), 2006 SCC 39 (CanLII), [2006] 2 S.C.R. 319; referred to: Foster
Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18 (CanLII),
[2004] 1 S.C.R. 456; Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81; Susan Hosiery Ltd. v. Minister of National Revenue,
[1969] 2 Ex. C.R. 27; Desjardins Assurances générales inc. v. Groupe Ledor inc., mutuelle d’assurances, 2014 QCCA 1501
(CanLII); Canada (Procureur général) v. Chambre des notaires du Québec, 2014 QCCA 552 (CanLII); Informatique Côté,
Coulombe inc. v. Groupe Son X Plus inc., 2012 QCCA 2262 (CanLII); Union canadienne (L’), compagnie d’assurance v.
St‑Pierre, 2012 QCCA 433 (CanLII), [2012] R.J.Q. 340; Imperial Tobacco Canada ltée v. Létourneau, 2012 QCCA 2260
(CanLII); Société d’énergie de la Baie James v. Groupe Aecon ltée, 2011 QCCA 646 (CanLII); Fournier Avocats inc. v.
Cinar Corp., 2010 QCCA 2278 (CanLII); R. v. National Post, 2010 SCC 16 (CanLII), [2010] 1 S.C.R. 477; R. v. Gruenke,
1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263; Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37
(CanLII), [2013] 2 S.C.R. 623; R. v. Basi, 2009 SCC 52 (CanLII), [2009] 3 S.C.R. 389; Compagnie d’assurances AIG du
Canada v. Solmax International inc., 2016 QCCA 258 (CanLII); Axa Assurances inc. v. Pageau, 2009 QCCA 1494
(CanLII); Conceicao Farms Inc. v. Zeneca Corp. (2006), 2006 CanLII 31976 (ON CA), 83 O.R. (3d) 792; College of
Physicians and Surgeons of British Columbia v. British Columbia (Information and Privacy Commissioner), 2002 BCCA
665 (CanLII), 23 C.P.R. (4th) 185; Apotex Fermentation Inc. v. Novopharm Ltd. (1994), 95 Man. R. (2d) 186; R. v.
Brouillette (1992), 1992 CanLII 3599 (QC CA), 78 C.C.C. (3d) 350; Opron Construction Co. v. Alberta (1989), 1989 ABCA
279 (CanLII), 100 A.R. 58; R. v. Lanthier, 2008 CanLII 13797; Kennedy v. McKenzie (2005), 17 C.P.C. (6th) 229; R. v.
Soomel, 2003 BCSC 140 (CanLII); General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R.
(3d) 321; Brown v. Cape Breton (Regional Municipality), 2011 NSCA 32 (CanLII), 302 N.S.R. (2d) 84; Llewellyn v. Carter,
2008 PESCAD 12 (CanLII), 278 Nfld. & P.E.I.R. 96; Davies v. American Home Assurance Co. (2002), 2002 CanLII 62442
(ON SCDC), 60 O.R. (3d) 512; R. v. Barros, 2011 SCC 51 (CanLII), [2011] 3 S.C.R. 368; Smith v. Jones, 1999 CanLII 674
(SCC), [1999] 1 S.C.R. 455; R. v. Kea (2005), 27 M.V.R. (5th) 182; D’Anjou v. Lamontagne, 2014 QCCQ 11999 (CanLII);
Rodriguez v. Woloszyn, 2013 ABQB 269 (CanLII), 554 A.R. 8; Aherne v. Chang, 2011 ONSC 3846 (CanLII), 337 D.L.R.
(4th) 593; Guay v. Gesca ltée, 2013 QCCA 343 (CanLII), [2013] R.J.Q. 342; Hickman v. Taylor, 329 U.S. 495 (1947); Parry
Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII), [2003] 2 S.C.R.
157; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; Ordon Estate v. Grail, 1998
CanLII 771 (SCC), [1998] 3 S.C.R. 437; Peacock v. Bell (1667), 1 Wms. Saund. 73, 85 E.R. 84; Bisaillon v. Keable, 1983
CanLII 26 (SCC), [1983] 2 S.C.R. 60; R. v. McClure, 2001 SCC 14 (CanLII), [2001] 1 S.C.R. 445; Canada (National
Revenue) v. Thompson, 2016 SCC 21 (CanLII), [2016] 1 S.C.R. 381; Penetanguishene Mental Health Centre v. Ontario,
2010 ONCA 197 (CanLII), 260 O.A.C. 125; Slocan Forest Products Ltd. v. Trapper Enterprises Ltd., 2010 BCSC 1494
(CanLII), 100 C.P.C. (6th) 70; TransAlta Corp. v. Market Surveillance Administrator, 2014 ABCA 196 (CanLII), 577 A.R.
32; Privacy Commissioner of Canada v. Air Canada, 2010 FC 429 (CanLII); State Farm Mutual Automobile Insurance Co.
v. Privacy Commissioner of Canada, 2010 FC 736 (CanLII); Louch v. Decicco, 2007 BCSC 393 (CanLII), 39 C.P.C. (6th) 8;
Ward v. Pasternak, 2015 BCSC 1190 (CanLII).

Statutes and Regulations Cited

Access to Information Act, R.S.C. 1985, c. A‑1, s. 23.

Act respecting the distribution of financial products and services, CQLR, c. D‑9.2, ss. 284, 289, 312, 329, 337, 352, 353,
376.

Charter of human rights and freedoms, CQLR, c. C‑12, s. 9.

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Code of Civil Procedure, CQLR, c. C‑25.01, art. 11.

Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, ss. 12 [repl. 2010, c. 23, s. 83], 12.1.

Professional Code, CQLR, c. C‑26, ss. 14.3, 60.4, 142, 192.

Authors Cited

Billingsley, Barbara. “‘Ingathered’ Records and the Scope of Litigation Privilege in Canada: Does Litigation Privilege
Apply to Copies or Collections of Otherwise Unprivileged Documents?” (2014), 43 Adv. Q. 280.

Cardinal, Alain. “Quelques aspects modernes du secret professionnel de l’avocat” (1984), 44 R. du B. 237.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Halsbury’s Laws of Canada: Evidence, 2014 Reissue, contributed by Hamish C. Stewart. Markham, Ont.: LexisNexis, 2014.

Royer, Jean‑Claude, et Sophie Lavallée. La preuve civile, 4e éd. Cowansville, Qué.: Yvon Blais, 2008.

Sharpe, Robert J. “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada
1984 — Law in Transition: Evidence. Don Mills, Ont.: Richard De Boo, 1984, 163.

Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.

Williams, Neil J. “Discovery of Civil Litigation Trial Preparation in Canada” (1980), 58 Can. Bar Rev. 1.

APPEAL from a judgment of the Quebec Court of Appeal (Bich, Gagnon and St‑Pierre JJ.A.), 2015 QCCA 152
(CanLII), [2015] AZ‑51145074, [2015] J.Q. no 383 (QL), 2015 CarswellQue 384 (WL Can.), setting aside in part a decision
of Gagnon J., 2013 QCCS 6397 (CanLII), [2013] AZ‑51031246, [2013] J.Q. no 14254 (QL), 2013 CarswellQue 13283 (WL
Can.). Appeal dismissed.

Claude G. Leduc and Olivier Charbonneau‑Saulnier, for the appellant.

Éric Azran and Patrick Girard, for the respondents.

Mahmud Jamal, Alexandre Fallon and W. David Rankin, for the intervener the Canadian Bar Association.

Douglas C. Mitchell and Audrey Boctor, for the intervener the Advocates’ Society.

François LeBel, Jean‑Benoît Pouliot and Sylvie Champagne, for the intervener Barreau du Québec.

English version of the judgment of the Court delivered by

G J. —

I. Overview

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[1] Litigation privilege protects against the compulsory disclosure of communications and documents whose
dominant purpose is preparation for litigation. Although it differs from the professional secrecy of lawyers (solicitor‑client
privilege) in several respects, the two concepts do overlap to some extent. Since Canada (Privacy Commissioner) v. Blood
Tribe Department of Health, 2008 SCC 44 (CanLII), [2008] 2 S.C.R. 574, it has been settled law that any legislative
provision capable of interfering with solicitor‑client privilege must be read narrowly and that a legislature may not abrogate
that privilege by inference, but may only do so using clear, explicit and unequivocal language. The issue in this appeal is
whether this principle also applies to litigation privilege.

[2] In the course of an inquiry into a claims adjuster, the appellant, the assistant syndic (the “syndic”) of the
Chambre de l’assurance de dommages (the “Chamber”), asked an insurer, the respondent Aviva Insurance Company of
Canada, to send her a complete copy of its claim file with respect to one of its insured. Aviva refused to do so on the basis
that some of the requested documents were protected by litigation privilege. In response to this refusal, the syndic filed a
motion for a declaratory judgment, arguing that the relevant statutory provision created an obligation to produce “any . . .
document” concerning the activities of a representative whose professional conduct is being investigated by the Chamber,
and that this was sufficient to lift the privilege. In the syndic’s opinion, litigation privilege can be distinguished from
solicitor‑client privilege; it is less important and is not absolute, and should therefore be applied more flexibly.

[3] The Superior Court concluded that litigation privilege cannot be abrogated absent an express provision. The
Court of Appeal upheld the Superior Court’s judgment, holding that even though litigation privilege is distinguishable from
solicitor‑client privilege, it is, to the same extent, a fundamentally important principle that cannot be overridden without
express language.

[4] I would dismiss the appeal. Although there are differences between solicitor‑client privilege and litigation
privilege, the latter is nonetheless a fundamental principle of the administration of justice that is central to the justice system
both in Quebec and in the other provinces. It is a class privilege that exempts the communications and documents that fall
within its scope from compulsory disclosure, except where one of the limited exceptions to non‑disclosure applies.

[5] The requirements established in Blood Tribe apply to litigation privilege. Given its importance, this privilege
cannot be abrogated by inference and cannot be lifted absent a clear, explicit and unequivocal provision to that effect.
Because the section at issue provides only for the production of “any . . . document” without further precision, it does not
have the effect of abrogating the privilege. It follows that Aviva was entitled to assert litigation privilege in this case and to
refuse to provide the syndic with the documents that fall within the scope of that privilege.

II. Background

[6] The Chamber is a self‑regulatory organization established by s. 284 of the Act respecting the distribution of
financial products and services, CQLR, c. D‑9.2 (“ADFPS”). It is responsible for overseeing the professional conduct of a
number of representatives working in the insurance field, including claims adjusters, damage insurance agents and damage
insurance brokers (ss. 289 and 312 ADFPS). In this regard, the Chamber has a role similar to that of a professional order
governed by the Professional Code, CQLR, c. C‑26, although it is not such an order. Its “mission [is] to ensure the
protection of the public by maintaining discipline among and supervising the training and ethics of its members” (s. 312
ADFPS). For this purpose, the syndic of the Chamber inquires into any offences under the ADFPS or its regulations (s. 329
ADFPS). She may bring a complaint against a representative before the Chamber’s discipline committee, and the complaint
may result in a fine (ss. 352, 353 and 376 ADFPS).

[7] In July 2008, a fire damaged the residence of a person insured by Aviva. Aviva assigned one of its claims
adjusters, M.B., to investigate the claim. The syndic of the Chamber later received information to the effect that M.B. had
made certain errors in managing the file. On January 24, 2011, the syndic opened an inquiry with respect to M.B. In the
course of that inquiry, a member of the syndic’s team sent Aviva a request for a [ ] “complete copy of [its] file,
both physical and electronic, for this claim”, and for a list that would enable her “to identify the employees who worked on
the file” (emphasis deleted). The syndic based this request on s. 337 ADFPS, which reads as follows:

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337. Insurers, firms, independent partnerships and mutual fund dealers and scholarship plan dealers registered
in accordance with Title V of the Securities Act (chapter V‑1.1) must, at the request of a syndic, forward any
required document or information concerning the activities of a representative.

[8] In response, Aviva produced a number of documents, but explained that it had withheld some on the basis that
they were covered either by solicitor‑client privilege or by litigation privilege. The syndic insisted, however, and made
several subsequent requests for the complete claim file, explaining that she could not conduct her inquiry without it.

[9] On June 30, 2011, the insured person in question brought legal proceedings against Aviva to obtain
compensation. While that action was still pending in court, the syndic applied in June 2012 for a declaratory judgment
against Aviva in order to obtain the documents it sought. On June 26, 2013, Aviva and the insured person reached an
out‑of‑court settlement, and on October 17, 2013, Aviva finally sent the syndic the entire file regarding the insured person’s
claim.

[10] Although that settled the dispute between the parties with respect to the production of the required documents,
the syndic nevertheless proceeded with her motion for a declaratory judgment. As agreed by the parties, that motion raised
the following question:

[ ] The parties agree that at the time when the ChaD (Chambre de l’assurance de dommages) made
its request to the defendant on January 24, 2011, some of the documents included in the claim file of the insured
person N.F. were not produced by the defendant on the basis of litigation privilege or of professional secrecy
(solicitor‑client privilege). Accordingly, was the defendant entitled to assert those privileges against the ChaD
and to refuse on that basis to produce the documents covered by them?

[11] The Superior Court judge who heard the motion held that it raised a [ ] “genuine problem”,
because other insurers and claims adjusters had raised the same question in response to requests for documents from the
Chamber’s syndics. At the hearing of the motion, the syndic conceded that solicitor‑client privilege could be asserted against
her and that the issue before the court was therefore limited to litigation privilege. As well, Aviva abandoned its argument
that some of the requested documents did not relate to “the activities of a representative” within the meaning of s. 337
ADFPS. As a result, no facts were at issue before the motion judge.

III. Judicial History

A. Quebec Superior Court (2013 QCCS 6397 (CanLII))

[12] The Superior Court ruled in Aviva’s favour. The motion judge began by observing that s. 9 of the Charter of
human rights and freedoms, CQLR, c. C‑12 (the “Quebec Charter”), grants quasi‑constitutional protection to professional
secrecy of lawyers, which is closely linked to [ ] the “democratic values” (paras. 46 and 50‑51 (CanLII)).
Although claims adjusters are not bound to professional secrecy by law, counsel retained by a claims adjuster or an insurer is
so bound (paras. 47‑48). In Blood Tribe, it was held that an authority may not “pierce” solicitor‑client privilege absent
express words in the applicable legislation. Because the ADFPS (and s. 337 thereof) contains no express abrogation of
solicitor‑client privilege, the latter may be asserted against the syndic (paras. 53‑56).

[13] The motion judge then considered the syndic’s argument that litigation privilege can be distinguished from
solicitor‑client privilege, in particular in that it is not protected by s. 9 of the Quebec Charter. In the motion judge’s view,
this argument represented a [ ] “departure from the position taken by the Supreme Court in Foster Wheeler”
(para. 63). In that case, LeBel J. had written that litigation privilege “is now being absorbed into the Quebec civil law
concept of professional secrecy” (Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des

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déchets (SIGED) inc., 2004 SCC 18 (CanLII), [2004] 1 S.C.R. 456, at para. 44). The motion judge also noted that the
Federal Court had held, in two cases originating in common law provinces, that the principles applicable to solicitor‑client
privilege in the context of the statute at issue in Blood Tribe (the Personal Information Protection and Electronic Documents
Act, S.C. 2000, c. 5 (“PIPEDA”)) also applied to litigation privilege (paras. 64‑67).

[14] In light of the decision in Foster Wheeler, the motion judge considered himself bound to apply these principles
to Quebec law and to find that, in the absence of express language, the ADFPS does not abrogate litigation privilege, which
can therefore be asserted against the syndic (para. 68). He accordingly declared that both solicitor‑client privilege and
litigation privilege can be asserted against the syndic of the Chamber [ ] “by anybody who receives a request for
information” (para. 83).

B. Quebec Court of Appeal (2015 QCCA 152 (CanLII))

[15] The Court of Appeal upheld the judgment on the motion, concluding that litigation privilege could be asserted
against the syndic. In its view, the syndic had been right to concede that solicitor‑client privilege could be asserted against
her, since the legislature is required to use express language to abrogate that privilege, which it had not done in this case.
The court also noted that, by way of comparison, express language had been used in ss. 14.3, 60.4 and 192 of the
Professional Code (which does not apply to claims adjusters) in the context of disciplinary inquiries (paras. 23 and 30
(CanLII)).

[16] Although solicitor‑client privilege and litigation privilege must be viewed as being conceptually distinct, the
Court of Appeal noted that in Blank v. Canada (Minister of Justice), 2006 SCC 39 (CanLII), [2006] 2 S.C.R. 319, this Court
had written that the two rules “serve a common cause: The secure and effective administration of justice according to law”
(para. 25, quoting Blank, at para. 31). As well, the Federal Court, the Ontario Court of Appeal and the Alberta Court of
Appeal had held that litigation and/or settlement privilege cannot be abrogated without clear and explicit language
(paras. 31‑32). In the Court of Appeal’s view, the same reasoning applies to the instant case.

[17] The Court of Appeal added that this Court had also stated in Blank that the Access to Information Act, R.S.C.
1985, c. A‑1, had been enacted in a context in which the term “solicitor‑client privilege” was understood to include litigation
privilege (para. 29). Yet the same context had also applied when the ADFPS was enacted in 1998, and when the legislature
made amendments to that Act after Blank was decided, it did not add anything to abrogate solicitor‑client privilege or
litigation privilege even though it had done so in the Professional Code with respect to professional secrecy (para. 30). The
Court of Appeal concluded from this that litigation privilege could be asserted against the syndic. The court allowed the
appeal, but solely to amend the motion judge’s conclusion such that it would apply to [ ] “the respondents”
rather than to “any person” (para. 37).

IV. Issue

[18] In this Court, the syndic rightly admits that solicitor‑client privilege can be asserted against her in the context
of a request for documents relating to a claim file. The central issue of the appeal is therefore whether Aviva could also
assert litigation privilege against the syndic in the same context. To resolve it, I will have to determine whether litigation
privilege may be abrogated using general rather than clear, explicit and unequivocal language and, accordingly, whether
s. 337 ADFPS can be interpreted as establishing a valid abrogation of the privilege. Before doing so, however, I must first
review the characteristics of litigation privilege.

V. Analysis

A. Characteristics of Litigation Privilege

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[19] Litigation privilege gives rise to an immunity from disclosure for documents and communications whose
dominant purpose is preparation for litigation. The classic examples of items to which this privilege applies are the lawyer’s
file and oral or written communications between a lawyer and third parties, such as witnesses or experts: J.‑C. Royer and
S. Lavallée, La preuve civile (4th ed. 2008), at pp. 1009‑10.

[20] Litigation privilege is a common law rule of English origin: Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81
(H.L.). It was introduced to Canada, including Quebec, in the 20th century as a privilege linked to solicitor‑client privilege,
which at the time was considered to be a rule of evidence that was necessary to ensure the proper conduct of trials:
A. Cardinal, “Quelques aspects modernes du secret professionnel de l’avocat” (1984), 44 R. du B. 237, at pp. 266‑67. In an
oft‑cited case, Jackett P. of the former Exchequer Court of Canada explained the purpose of litigation privilege, once known
as the lawyer’s brief rule, as follows:

Turning to the “lawyer’s brief” rule, the reason for the rule is, obviously, that, under our adversary system of
litigation, a lawyer’s preparation of his client’s case must not be inhibited by the possibility that the materials
that he prepares can be taken out of his file and presented to the court in a manner other than that contemplated
when they were prepared. What would aid in determining the truth when presented in the manner contemplated
by the solicitor who directed its preparation might well be used to create a distortion of the truth to the prejudice
of the client when presented by someone adverse in interest who did not understand what gave rise to its
preparation. If lawyers were entitled to dip into each other’s briefs by means of the discovery process, the
straightforward preparation of cases for trial would develop into a most unsatisfactory travesty of our present
system. [Emphasis added.]

(Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, at pp. 33‑34)

[21] Because of these origins, litigation privilege has sometimes been confused with solicitor‑client privilege, both
at common law and in Quebec law: Royer and Lavallée, at pp. 1003‑4; N. J. Williams, “Discovery of Civil Litigation Trial
Preparation in Canada” (1980), 58 Can. Bar Rev. 1, at pp. 37‑38.

[22] However, since Blank was rendered in 2006, it has been settled law that solicitor‑client privilege and litigation
privilege are distinguishable. In Blank, the Court stated that “[t]hey often co‑exist and [that] one is sometimes mistakenly
called by the other’s name, but [that] they are not coterminous in space, time or meaning” (para. 1). It identified the
following differences between them:

• The purpose of solicitor‑client privilege is to protect a relationship, while that of litigation privilege is to ensure the
efficacy of the adversarial process (para. 27);

• Solicitor‑client privilege is permanent, whereas litigation privilege is temporary and lapses when the litigation ends
(paras. 34 and 36);

• Litigation privilege applies to unrepresented parties, even where there is no need to protect access to legal services
(para. 32);

• Litigation privilege applies to non‑confidential documents (para. 28, quoting R. J. Sharpe, “Claiming Privilege in
the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164‑65);

• Litigation privilege is not directed at communications between solicitors and clients as such (para. 27).

[23] The Court also stated that litigation privilege, “unlike the solicitor‑client privilege, is neither absolute in scope
nor permanent in duration” (Blank, at para. 37). Moreover, the Court confirmed that only those documents whose “dominant
purpose” is litigation (and not those for which litigation is a “substantial purpose”) are covered by the privilege (para. 60). It
noted that the concept of “related litigation”, which concerns different proceedings that are brought after the litigation that
gave rise to the privilege, may extend the privilege’s effect (paras. 38‑41).

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[24] While it is true that in Blank, the Court thus identified clear differences between litigation privilege and
solicitor‑client privilege, it also recognized that they have some characteristics in common. For instance, it noted that the
two privileges “serve a common cause: The secure and effective administration of justice according to law” (para. 31). More
specifically, litigation privilege serves that cause by “ensur[ing] the efficacy of the adversarial process” (para. 27) and
maintaining a “protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate”
(para. 40, quoting Sharpe, at p. 165).

[25] The differences identified in Blank between solicitor‑client privilege and litigation privilege have been adopted
in Quebec law: Desjardins Assurances générales inc. v. Groupe Ledor inc., mutuelle d’assurances, 2014 QCCA 1501, at
para. 8 (CanLII); Canada (Procureur général) v. Chambre des notaires du Québec, 2014 QCCA 552, at para. 47 (CanLII);
Informatique Côté, Coulombe inc. v. Groupe Son X Plus inc., 2012 QCCA 2262, at para. 15 (CanLII); Union canadienne
(L’), compagnie d’assurance v. St‑Pierre, 2012 QCCA 433 (CanLII), [2012] R.J.Q. 340, at paras. 23‑24; Imperial Tobacco
Canada ltée v. Létourneau, 2012 QCCA 2260, at paras. 7‑8 (CanLII); Société d’énergie de la Baie James v. Groupe Aecon
ltée, 2011 QCCA 646, at para. 14 (CanLII); Fournier Avocats inc. v. Cinar Corp., 2010 QCCA 2278, at para. 21 (CanLII). In
light of Blank and the subsequent case law, the earlier obiter dictum of LeBel J. in Foster Wheeler on which the motion
judge relied in the instant case (para. 63) must be placed in its proper context. In Foster Wheeler, LeBel J. wrote that
litigation privilege “is now being absorbed into the Quebec civil law concept of professional secrecy” (para. 44). However,
that observation referred to a tendency that is no longer representative of the state of the law in Quebec. Moreover, because
litigation privilege applies, for example, to an unrepresented party without the involvement of a professional counsellor
(Blank, at para. 27), it cannot be said, despite the common characteristics, that it has been absorbed into, or constitutes a
component or subcategory of, the institution of professional secrecy.

[26] This being said, the syndic in the case at bar is relying on Blank and on the differences identified in it as the
basis for three arguments that support her view that litigation privilege should be given a limited scope.

[27] First, she submits that litigation privilege is not a class privilege and that this distinguishes it from
solicitor‑client privilege, as it is intended not to protect a relationship, but solely to facilitate a process. Although taking care
not to say that litigation privilege is essentially a [ ] “case‑by‑case privilege”, she submits that it is nevertheless
a “limited privilege that must yield where the ends of justice so require or where that is justified by an overriding public
interest”.

[28] Next, the syndic argues that litigation privilege must be subjected to a balancing test. In her view, courts must
in every case assess the harm that would result from the application of the privilege and consider the opposing interests in
deciding whether it should apply. The very existence of the privilege thus depends on an analysis specific to a given
situation rather than on the application of certain defined exceptions as is the case for solicitor‑client privilege. The syndic
considers that litigation privilege no longer reflects contemporary legal realities, which require more extensive co‑operation
in the courts, and that it should therefore be given a very narrow scope.

[29] Finally, the syndic submits that it should not be possible to assert the privilege against someone who is not a
party to the litigation in question. The Court should even adopt a [ ] “third party investigator exception”. In the
syndic’s opinion, such an exception should apply in favour of anyone who:

[ ] . . . (i) is not a party to the litigation that gave rise to the privilege and is therefore a “third
party” to the litigation who has no interest in it; (ii) has investigative powers conferred by the legislature in
relation to a function being performed in the public interest; (iii) requests the production of documents that are
directly relevant to the fulfillment of that function; (iv) has a duty of confidentiality that bars him or her from
disclosing the requested documents, directly or indirectly, to the opposing party in the litigation that gave rise to
the privilege; and (v) is authorized to disclose the documents only in a forum that itself is obligated and has the
ability to maintain their confidentiality for at least as long as the duration of the litigation that gave rise to the
privilege (and any related litigation). [A.F., at para. 136]

[30] I note that this last argument goes well beyond the narrow issue of legislative abrogation of the privilege raised
in this appeal. The proposed exception, which is based on a balancing test, could cause the privilege to be inapplicable even
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before that issue arises. In support of the exception, the syndic asserts that her oath of discretion and duty of confidentiality
substantially limit, or even eliminate, any risk of harm. In short, in a situation like the one in this case, the very limited scope
of litigation privilege means that it should yield given the importance of the syndic’s function of protecting the public.

[31] I find these three arguments to be without merit. Although litigation privilege is distinguishable from
solicitor‑client privilege, the fact remains that (1) it is a class privilege, (2) it is subject to clearly defined exceptions, not to a
case‑by‑case balancing test, and (3) it can be asserted against third parties, including third party investigators who have a
duty of confidentiality.

(1) Litigation Privilege Is a Class Privilege

[32] There are two types of privileges in our law: class privileges and case‑by‑case privileges. A class privilege
entails a presumption of non‑disclosure once the conditions for its application are met. It is “more rigid than a privilege
constituted on a case‑by‑case basis”, which means that it “does not lend itself to the same extent to be tailored to fit the
circumstances”: R. v. National Post, 2010 SCC 16 (CanLII), [2010] 1 S.C.R. 477, at para. 46. On the other hand, “[t]he
scope of [a] case‑by‑case privilege”, as the name suggests, “will depend, as does its very existence, on a case‑by‑case
analysis, and may be total or partial” (National Post, at para. 52). The four “Wigmore criteria”, the last of which is a
balancing of the interests at stake, are applied:

The “Wigmore criteria” consist of four elements which may be expressed for present purposes as follows.
First, the communication must originate in a confidence that the identity of the informant will not be disclosed.
Second, the confidence must be essential to the relationship in which the communication arises. Third, the
relationship must be one which should be “sedulously fostered” in the public good (“Sedulous[ly]” being
defined . . . as “diligent[ly] . . . deliberately and consciously”). Finally, if all of these requirements are met, the
court must consider whether in the instant case the public interest served by protecting the identity of the
informant from disclosure outweighs the public interest in getting at the truth. . . .

...

The fourth Wigmore criterion does most of the work. Having established the value to the public of the
relationship in question, the court must weigh against its protection any countervailing public interest such as the
investigation of a particular crime (or national security, or public safety or some other public good). [paras. 53
and 58]

[33] In my opinion, litigation privilege is a class privilege. Once the conditions for its application are met, that is,
once there is a document created for “the dominant purpose of litigation” (Blank, at para. 59) and the litigation in question or
related litigation is pending “or may reasonably be apprehended” (para. 38), there is a “prima facie presumption of
inadmissibility” in the sense intended by Lamer C.J. in R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263:

The parties have tended to distinguish between two categories: a “blanket”, prima facie, common law, or
“class” privilege on the one hand, and a “case‑by‑case” privilege on the other. The first four terms are used to
refer to a privilege which was recognized at common law and one for which there is a prima facie presumption
of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging
admission can show why the communications should not be privileged (i.e., why they should be admitted into
evidence as an exception to the general rule). [Emphasis deleted; p. 286]

[34] From this perspective, litigation privilege is similar to settlement privilege and informer privilege, which the
Court has already characterized as class privileges: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37
(CanLII), [2013] 2 S.C.R. 623, at para. 12; R. v. Basi, 2009 SCC 52 (CanLII), [2009] 3 S.C.R. 389, at para. 22. Like them,
litigation privilege has long been recognized by the courts and has been considered to entail a presumption of immunity
from disclosure once the conditions for its application have been met: Blank, at paras. 59‑60; Compagnie d’assurances AIG

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du Canada v. Solmax International inc., 2016 QCCA 258, at paras. 4‑8 (CanLII); Groupe Ledor inc., at paras. 8‑9; St‑Pierre,
at para. 41; Axa Assurances inc. v. Pageau, 2009 QCCA 1494, at para. 2 (CanLII); Conceicao Farms Inc. v. Zeneca Corp.
(2006), 2006 CanLII 31976 (ON CA), 83 O.R. (3d) 792 (C.A.), at paras. 20‑21; College of Physicians and Surgeons of
British Columbia v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665 (CanLII), 23 C.P.R. (4th)
185, at paras. 31‑33 and 72; Apotex Fermentation Inc. v. Novopharm Ltd. (1994), 95 Man. R. (2d) 186 (C.A.), at
paras. 18‑20; R. v. Brouillette (1992), 1992 CanLII 3599 (QC CA), 78 C.C.C. (3d) 350 (Que. C.A.), at p. 368; Opron
Construction Co. v. Alberta (1989), 1989 ABCA 279 (CanLII), 100 A.R. 58 (C.A.), at para. 5.

[35] Furthermore, several courts and authors have, although sometimes diverging on the basis for the privilege or
the applicable criteria, explicitly concluded that litigation privilege is in fact a class privilege: R. v. Lanthier, 2008 CanLII
13797 (Ont. S.C.J.), at para. 6; Kennedy v. McKenzie (2005), 17 C.P.C. (6th) 229 (Ont. S.C.J.), at para. 22; R. v. Soomel,
2003 BCSC 140, at para. 76 (CanLII); H. C. Stewart, Halsbury’s Laws of Canada: Evidence (2014 Reissue), at
para. HEV‑183; B. Billingsley, “‘Ingathered’ Records and the Scope of Litigation Privilege in Canada: Does Litigation
Privilege Apply to Copies or Collections of Otherwise Unprivileged Documents?” (2014), 43 Adv. Q. 280, at pp. 283‑85.

[36] Thus, although litigation privilege differs from solicitor‑client privilege in that its purpose is to facilitate a
process — the adversary process (Blank, at para. 28, quoting Sharpe, at paras. 164‑65) — and not to protect a relationship, it
is nevertheless a class privilege. It is recognized by the common law courts, and it gives rise to a presumption of
inadmissibility for a class of communications, namely those whose dominant purpose is preparation for litigation (Blank, at
para. 60).

[37] This means that any document that meets the conditions for the application of litigation privilege will be
protected by an immunity from disclosure unless the case is one to which one of the exceptions to that privilege applies. As
a result, the onus is not on a party asserting litigation privilege to prove on a case‑by‑case basis that the privilege should
apply in light of the facts of the case and the “public interests” that are at issue (National Post, at para. 58).

(2) Litigation Privilege Is Subject to Clearly Defined Exceptions and Not to a Case‑by‑Case Balancing Exercise

[38] Despite the fact that litigation privilege is a class privilege, the syndic proposes that the Court adopt the
balancing test developed by Doherty J.A. of the Ontario Court of Appeal in his dissenting reasons in General Accident
Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321:

Litigation privilege claims should be determined by first asking whether the material meets the dominant
purpose test . . . . If it meets that test, then it should be determined whether in the circumstances the harm
flowing from non‑disclosure clearly outweighs the benefit accruing from the recognition of the privacy interest
of the party resisting production. [Emphasis added; p. 365.]

[39] I disagree. In the context of privileges, the exercise of balancing competing interests is associated with
case‑by‑case privileges (National Post, at para. 58), not class privileges. Rosenberg J.A., who wrote reasons concurring with
those of Carthy J.A. for the majority in Chrusz, refused to apply such a test, citing the uncertainty that would be caused by a
case‑by‑case approach of balancing the advantages and disadvantages of applying the privilege. I adopt his comments on
this point:

The litigation privilege is well established, even if some of the nuances are not. In my view, the competing
interests or balancing approach proposed by Doherty J.A. is more appropriate for dealing with emerging claims
of privilege . . . . I am concerned that a balancing test would lead to unnecessary uncertainty and a proliferation
of pre‑trial motions in civil litigation.

That is not to say that litigation privilege is absolute. The Supreme Court of Canada has made it clear that
all of the established privileges are subject to some exceptions. . . .

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In my view, with established privileges like solicitor‑client privilege and litigation privilege it is preferable
that the general rule be stated with as much clarity as possible. Deviations from the rule should be dealt with as
clearly defined exceptions rather than as a new balancing exercise each time a privilege claim is made . . . .
[Emphasis added; p. 369.]

[40] Moreover, other courts have cited Justice Rosenberg’s analysis with approval: Brown v. Cape Breton (Regional
Municipality), 2011 NSCA 32 (CanLII), 302 N.S.R. (2d) 84, at paras. 57‑58; Llewellyn v. Carter, 2008 PESCAD 12
(CanLII), 278 Nfld. & P.E.I.R. 96, at para. 52; Kennedy, at para. 39; Davies v. American Home Assurance Co. (2002), 2002
CanLII 62442 (ON SCDC), 60 O.R. (3d) 512 (S.C.J.), at paras. 43‑46. Similarly, in R. v. Barros, 2011 SCC 51 (CanLII),
[2011] 3 S.C.R. 368, this Court discussed the certainty that was needed in the case of another fundamental privilege, that of
the police informer, explaining as follows why a case‑by‑case determination of whether relevant information is privileged
would undermine the confidence of those who are protected by the privilege:

Police rely heavily on informers. Because of its almost absolute nature, the privilege encourages other
potential informers to come forward with some assurance of protection against reprisal. A more flexible rule that
would leave disclosure up to the discretion of the individual trial judge would rob informers of that assurance
and sap their willingness to cooperate. [Emphasis added; para. 30.]

The same considerations apply to litigation privilege.

[41] What must be done therefore is to identify, where appropriate, specific exceptions to litigation privilege rather
than conducting a balancing exercise in each case. In this regard, the Court held in Smith v. Jones, 1999 CanLII 674 (SCC),
[1999] 1 S.C.R. 455, that the exceptions that apply to solicitor‑client privilege are all applicable to litigation privilege, given
that solicitor‑client privilege is the “highest privilege recognized by the courts” (para. 44). These include the exceptions
relating to public safety, to the innocence of the accused and to criminal communications (paras. 52‑59 and 74‑86). They
also include the exception to litigation privilege recognized in Blank for “evidence of the claimant party’s abuse of process
or similar blameworthy conduct” (para. 44).

[42] Other exceptions may be identified in the future, but they will always be based on narrow classes that apply in
specific circumstances. From this perspective, Aviva is proposing a new exception that is narrower than the balancing
exercise being advocated by the syndic and that would apply only in the cases of urgency and of necessity. Unsurprisingly,
the syndic says that she agrees with the substance of this exception.

[43] The idea of an exception based on urgency and necessity is of course appealing. It would help compensate for
the fact that, even though litigation privilege is temporary, it may sometimes delay access to certain documents that another
party urgently needs in order to prevent serious harm. Such an exception would be based on criteria such as the need to
obtain evidence to prevent serious harm, the impossibility of obtaining it by other means and the urgency of obtaining it
before the [ ] “natural” lapsing of the effects of litigation privilege.

[44] This exception would certainly be much narrower than the excessively broad balancing exercise proposed by
the syndic. What would be required would be not to ask in each case whether litigation privilege should protect a document
whose dominant purpose is preparation for litigation, but to lift the privilege in the rare cases in which a party succeeds in
discharging its heavy burden with regard to this exception. Therefore, in a situation similar to the one in this case, it would
not be enough for a syndic to simply invoke the need to sanction alleged disciplinary breaches in order to lift the privilege. If
that did suffice, such a request would always be sufficient to establish the urgency exception, and that exception would then
become the rule. This, in my view, would be improper. To establish the urgency exception in a disciplinary context, the
existence of an urgent investigation in which extraordinary harm is apprehended during the period in which litigation
privilege applies would instead be needed.

[45] However, the record of this appeal from a declaratory judgment reveals no facts that might be presented as
concrete examples of circumstances that could justify the application of such an exception. Because the urgency that is

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required may vary in nature depending on the legal context of the case and the nature of the relationship between the parties,
I consider it preferable to leave the actual adoption of such an exception and a detailed analysis of the conditions for its
application for a later date. For now, it would be advisable to limit this discussion to the defined exceptions that have been
mentioned above.

(3) Litigation Privilege Can Be Asserted Against Third Parties, Including Third Party Investigators Who Have a
Duty of Confidentiality

[46] At the hearing, the syndic submitted, lastly, that in every case, it should not be possible to assert litigation
privilege against third parties: it should apply only to parties to the litigation in question. In the case at bar, because the
syndic is not a party to any litigation related to the litigation between the insurer and the insured person, that privilege
cannot, in her opinion, be asserted against her. This is because of the limited purpose of the privilege, which is intended to
facilitate the adversarial process in which the parties alone are involved. In the alternative, the syndic proposes the adoption
of an exception to the effect that the privilege cannot be asserted against third party investigators who have a duty of
confidentiality.

[47] These arguments are unconvincing. I instead agree with the courts that have held that litigation privilege can
be asserted against anyone, including administrative or criminal investigators, not just against the other party to the
litigation: R. v. Kea
(2005), 27 M.V.R. (5th) 182 (Ont. S.C.J.), at paras. 43‑44; D’Anjou v. Lamontagne, 2014 QCCQ 11999, at paras. 92‑93 (CanLII).

[48] There are several reasons that justify this conclusion. The first is that the disclosure of otherwise protected
documents to third parties who do not have a duty of confidentiality would entail a serious risk for the party who benefits
from the protection of litigation privilege. There would be nothing to prevent a third party to whom such documents are
disclosed from subsequently disclosing them to the public or to the other party, which could have a serious adverse effect on
the conduct of the litigation in question. The documents could then be presented to the court in a manner other than that
contemplated by the party protected by the privilege. This is the very kind of harm that litigation privilege is meant to avoid:
Susan Hosiery Ltd., at pp. 33‑34. Moreover, in Blank, which concerned the Access to Information Act, this Court held that a
provision authorizing the government to invoke solicitor‑client privilege could also be used to invoke litigation privilege in
order to deny a request for access to information by a third party to the litigation (for example, the media or a member of the
public) (para. 4).

[49] There are also cases in which the courts have held that disclosure to a third party of a document covered by
litigation privilege could result in a waiver of the privilege as against all: Rodriguez v. Woloszyn, 2013 ABQB 269 (CanLII),
554 A.R. 8, at para. 44; Aherne v. Chang, 2011 ONSC 3846 (CanLII), 337 D.L.R. (4th) 593, at paras. 12‑13. The decisions
in those cases are based on the assumption that litigation privilege can be asserted against third parties. To conclude that
there are consequences associated with disclosure to third parties, one must first assume that confidentiality in relation to
those parties corresponds to a normal application of the privilege.

[50] As for the exception the syndic proposes for third party investigators who have a duty of confidentiality, it is
hardly more justifiable. Even where a duty of confidentiality exists, the open court principle applies to proceedings that can
be initiated by a syndic (s. 376 ADFPS and s. 142 of the Professional Code; art. 11 of the Code of Civil Procedure, CQLR,
c. C‑25.01). If, in the case at bar, the syndic had decided to file a complaint with the Chamber’s discipline committee, or if
she had decided to turn to the common law courts (to obtain, for example, an injunction against the person being
investigated, as the syndic of the Barreau du Québec did in Guay v. Gesca ltée, 2013 QCCA 343 (CanLII), [2013] R.J.Q.
342), it is far from certain, in light of the open court principle, that the documents that would otherwise be protected by
litigation privilege would not have had to be disclosed in the course of those proceedings.

[51] In Basi, this Court held that informer privilege could not be lifted in favour of defence counsel merely because
those counsel were bound by orders and undertakings of confidentiality. In the Court’s opinion, “[n]o one outside the circle
of privilege may access information over which the privilege has been claimed until a judge has determined that the
privilege does not exist or that an exception applies” (para. 44). In that case, the fact that the third parties had duties of
confidentiality and the reduced risk of harm did not preclude asserting informer privilege against them.
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[52] This reasoning applies with equal force to litigation privilege. It would not be appropriate to exclude third
parties from the application of this privilege or to expose the privilege to the uncertainties of disciplinary and legal
proceedings that could result in the disclosure of documents that would otherwise be protected. Moreover, even assuming
that there is no risk that a syndic’s inquiry will result in the disclosure of privileged documents, the possibility of a party’s
work being used by the syndic in preparing for litigation could discourage that party from writing down what he or she has
done. This makes it clear why it must be possible to assert litigation privilege against anyone, including a third party
investigator who has a duty of confidentiality and discretion. I am thus of the view that unless such an investigator satisfies
the requirements of a recognized exception to the privilege, it must be possible to assert the privilege against him or her.

[53] I would add that any uncertainty in this regard could have a chilling effect on parties preparing for litigation,
who may fear that documents otherwise covered by litigation privilege could be made public. The United States Supreme
Court gave a good description of this chilling effect, which litigation privilege (referred to as the “work product doctrine”) is
in fact meant to avoid:

Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while
faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential
that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and
their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers
to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and
needless interference. That is the historical and the necessary way in which lawyers act within the framework of
our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of
course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and
countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in
this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand,
much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate,
would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of
legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing.
And the interests of the clients and the cause of justice would be poorly served. [Emphasis added.]

(Hickman v. Taylor, 329 U.S. 495 (1947), at pp. 510‑11)

[54] In short, in the instant case, the courts below were right to hold that the litigation privilege invoked by Aviva
could be asserted against the syndic. None of the exceptions to its application justify lifting the privilege in this case. Thus,
all that remains to be determined is whether the privilege can, as the syndic submits, be lifted by applying the statutory
provision — s. 337 ADFPS — that is central to the case.

B. Was It Open to Aviva to Assert Litigation Privilege Against the Syndic in Order to Refuse to Produce the Requested
Documents?

[55] The syndic argues that the rule from Blood Tribe on abrogating solicitor‑client privilege must not apply to
litigation privilege. She submits that a legislature may abrogate litigation privilege by statute without using express
language. In her view, the words “any . . . document” in s. 337 ADFPS must be interpreted in light of the statute’s purpose,
namely the protection of the public, and it must be concluded that litigation privilege cannot be asserted against the syndic,
because that would [ ] “interfere with” her work by delaying her access to the documents to which it applies.

[56] Because litigation privilege is a common law rule, it will be helpful to reiterate the general principle that
applies to legislative departures from such rules. This Court has held that it must be presumed that a legislature does not
intend to change existing common law rules in the absence of a clear provision to that effect: Parry Sound (District) Social
Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII), [2003] 2 S.C.R. 157, at para. 39; Slaight
Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1077; see also R. Sullivan, Sullivan
on the Construction of Statutes (6th ed. 2014), at pp. 504‑5. Professor Sullivan writes in this regard that “[t]he stability of
law is enhanced by rejecting vague or inadvertent change while certainty and fair notice are promoted by requiring
legislatures to be clear and explicit about proposed changes” (p. 504).
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[57] The Court has therefore imposed strict requirements for the amendment or abrogation of certain fundamental
common law rules. For example, in Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437, the Court
emphasized the need for clear and explicit language to oust the inherent general jurisdiction of the provincial superior courts
(para. 46). The requirement for such language in this context, which originated in English law (Peacock v. Bell (1667), 1
Wms. Saund. 73, 85 E.R. 84, at pp. 87‑88), is based on the fundamental role played by the inherent jurisdiction of the
superior courts in the common law system inherited by Canada.

[58] Similarly, in Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, the Court refused to consider
informer privilege to have been abrogated by a provision of the Code of Civil Procedure, CQLR, c. C‑25.01, finding that it
was not “specific” enough (p. 103). In so doing, the Court emphasized the “public order” and “public interest” nature of
informer privilege (p. 93). It was the fundamental importance of that privilege that led the Court to require explicit language
for its abrogation.

[59] Blood Tribe, on which much of the argument in this appeal was focused, was to the same effect. In it, the issue
was whether solicitor‑client privilege had been abrogated or diluted by a statutory provision that authorized an
administrative investigator to compel a person to produce any records the investigator considered necessary to investigate a
complaint “in the same manner and to the same extent as a superior court of record” and to “receive and accept any evidence
and other information . . . that the [investigator] sees fit, whether or not it is or would be admissible in a court of law” (s. 12
PIPEDA, now s. 12.1 (S.C. 2010, c. 23, s. 83)). The Court held that the provision at issue was insufficient to abrogate
solicitor‑client privilege: “Open‑textured language governing production of documents [does] not . . . include solicitor‑client
documents” (para. 11 (emphasis deleted)). Instead, the legislature must use “clear and explicit language” to abrogate
solicitor‑client privilege (para. 2). The Court stated that the privilege “cannot be abrogated by inference” and added that any
provisions that allow incursions on the privilege must be interpreted restrictively (para. 11).

[60] To justify these requirements, the Court relied on the unique and foundational importance of solicitor‑client
privilege, which is “fundamental to the proper functioning of our legal system” (Blood Tribe, at para. 9). The Court cited a
significant body of case law to the effect that the privilege is a “fundamental policy of the law” (para. 11) that must be “as
close to absolute as possible to ensure public confidence and retain relevance” (para. 10, quoting R. v. McClure, 2001 SCC
14 (CanLII), [2001] 1 S.C.R. 445, at para. 35). The Court also noted that solicitor‑client privilege is of paramount
importance because it promotes “access to justice”, the “quality of justice” and “[the] free flow of legal advice” (para. 9).
What I take from this is that in Blood Tribe, the Court held that there is a requirement similar to the one that applies in
Quebec under s. 9 of the Quebec Charter, which provides that an “express” legislative override is necessary in order to
abrogate professional secrecy.

[61] This being said, Blood Tribe represents neither a return to the “plain meaning rule” nor an abandonment of the
modern approach to statutory interpretation, the goal of which is not to focus solely on the specific words of the provision,
but to read the words “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of
the Act, the object of the Act, and the intention of Parliament”: E. A. Driedger, Construction of Statutes (2nd ed. 1983), at
p. 87; Blood Tribe, at para. 26. First of all, the legislature does not necessarily have to use the term “solicitor‑client
privilege” in order to abrogate the privilege. An abrogation can be clear, explicit and unequivocal where the legislature uses
another expression that can be interpreted as referring unambiguously to the privilege. Next, even where there is a specific
reference to solicitor‑client privilege, the chosen words must nevertheless be interpreted in order to determine whether there
is in fact an abrogation and, if so, to assess its scope. The Court recently applied this modern approach to a statute that
expressly abrogated solicitor‑client privilege in order to determine its meaning and scope in Canada (National Revenue) v.
Thompson, 2016 SCC 21 (CanLII), [2016] 1 S.C.R. 381, at paras. 22‑34. But in accordance with Blood Tribe, unless clear,
explicit and unequivocal language has been used to abrogate solicitor‑client privilege, it must be concluded that the privilege
has not been abrogated.

[62] In the syndic’s view, these requirements that must be met in order to override certain rules of fundamental
importance should not apply to litigation privilege. She bases this argument on the limited nature of the privilege, which is
not absolute and which, in her opinion, requires a balancing of competing harms and interests.

[63] I disagree. The requirements discussed in Blood Tribe apply with equal force to litigation privilege. Not only is
litigation privilege a class privilege, but it serves an overriding “public interest” as that expression is used in Bisaillon. This

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public interest, as was explained in Blank, is “[t]he secure and effective administration of justice according to law”
(para. 31). The purpose of litigation privilege is to “ensure the efficacy of the adversarial process” (Blank, at para. 27) by
maintaining a “protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate”
(para. 40, quoting Sharpe, at p. 165). By maintaining a protected area for the preparation of litigation, litigation privilege in
its own way promotes “access to justice” and the “quality of justice” (Blood Tribe, at para. 9).

[64] There is of course no question that litigation privilege does not have the same status as solicitor‑client privilege
and that the former is less absolute than the latter. It is also clear that these two privileges, even though they may sometimes
apply to the same documents, are conceptually distinct. Nonetheless, like solicitor‑client privilege, litigation privilege is
“fundamental to the proper functioning of our legal system” (Blood Tribe, at para. 9). It is central to the adversarial system
that Quebec shares with the other provinces. As a number of courts have already pointed out, the Canadian justice system
promotes the search for truth by allowing the parties to put their best cases before the court, thereby enabling the court to
reach a decision with the best information possible: Penetanguishene Mental Health Centre v. Ontario, 2010 ONCA 197
(CanLII), 260 O.A.C. 125, at para. 39; Slocan Forest Products Ltd. v. Trapper Enterprises Ltd., 2010 BCSC 1494 (CanLII),
100 C.P.C. (6th) 70, at para. 15. The parties’ ability to confidently develop strategies knowing that they cannot be compelled
to disclose them is essential to the effectiveness of this process. In Quebec, as in the rest of the country, litigation privilege is
therefore inextricably linked to certain founding values and is of fundamental importance. That is a sufficient basis for
concluding that litigation privilege, like solicitor‑client privilege, cannot be abrogated by inference and that clear, explicit
and unequivocal language is required in order to lift it.

[65] This conclusion is consistent with a robust line of authority. Like the Quebec Court of Appeal in the instant
case, the Alberta Court of Appeal has also held that a party should not be denied the right to claim litigation privilege
without “clear and explicit legislative language to that effect”: TransAlta Corp. v. Market Surveillance Administrator, 2014
ABCA 196 (CanLII), 577 A.R. 32, at para. 36. As well, the Federal Court has applied the principles from Blood Tribe to
litigation privilege in two cases: Privacy Commissioner of Canada v. Air Canada, 2010 FC 429 (CanLII), at paras. 14 and
30‑37 (CanLII); State Farm Mutual Automobile Insurance Co. v. Privacy Commissioner of Canada, 2010 FC 736, at
para. 115 (CanLII).

[66] In the case at bar, s. 337 ADFPS, on which the syndic is relying, merely authorizes a request for the production
of “any . . . document” without further precision. This is what the Court characterized in Blood Tribe as a “general
production provision that does not specifically indicate that the production must include records for which . . . privilege is
claimed” (para. 21). In fact, s. 337 ADFPS is even less specific than the provisions at issue in Blood Tribe, which
empowered the investigator to obtain all the evidence he or she wished to obtain, “whether or not it is or would be
admissible in a court of law” and “in the same manner and to the same extent as a superior court of record” (s. 12 PIPEDA,
now s. 12.1).

[67] A provision that merely refers to the production of “any . . . document” does not contain sufficiently clear,
explicit and unequivocal language to abrogate litigation privilege. There are a number of statutes that provide for the
disclosure or production of “any . . . document” without further precision. As the intervener Advocates’ Society points out,
Quebec’s Code of Civil Procedure does so, as do the rules of civil procedure of several other provinces. Some courts have
held in the past that rules of civil procedure providing for the disclosure of documents in very general terms did not contain
the language that would be required in order to abrogate litigation privilege: Louch v. Decicco, 2007 BCSC 393 (CanLII), 39
C.P.C. (6th) 8, at para. 63; Ward v. Pasternak, 2015 BCSC 1190, at paras. 37‑38 (CanLII). The same conclusion applies in
the instant case.

C. Collateral Issue: The Professional Code and Litigation Privilege

[68] I must address one final point. In response to certain comments made in the Court of Appeal’s reasons, the
Barreau du Québec has intervened in this Court to raise a collateral issue with respect to the scope of s. 192 of the
Professional Code, as amended in 1994. That section explicitly abrogates professional secrecy in the context of a
disciplinary inquiry, but does not refer to the assertion of litigation privilege by a professional in such a context. In its
reasons, the Court of Appeal made two references to s. 192 (at paras. 23 and 30) to illustrate a situation in which the
legislature has expressly abrogated professional secrecy, which it has not done in s. 337 ADFPS.

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[69] Wishing to clear up any ambiguity concerning the scope of those comments, the Barreau submits that s. 192
should be read as abrogating not only professional secrecy, but also litigation privilege, even though it does not actually
mention the latter. The Barreau relies on Blank, in which this Court held that the protection afforded to solicitor‑client
privilege by s. 23 of the Access to Information Act, which did not mention litigation privilege, also applied to the latter
privilege.

[70] Although I am mindful of the concerns expressed by the Barreau, I am of the opinion that it would not be
appropriate for the Court to rule on this issue at this time without full argument in an adversarial context by all parties who
might have an interest in it.

VI. Disposition

[71] Litigation privilege is a class privilege that is distinct from solicitor-client privilege and is subject to certain
defined exceptions that do not apply in this case. Given the absence of clear, explicit and unequivocal language in the
ADFPS providing for the abrogation of this privilege, it may be asserted against the syndic, and the Superior Court and
Court of Appeal were right to reach this conclusion. I would accordingly dismiss the appeal with costs to Aviva.

Appeal dismissed with costs.

Solicitors for the appellant: Mercier Leduc, Montréal.

Solicitors for the respondents: Stikeman Elliott, Montréal.

Solicitors for the intervener the Canadian Bar Association: Osler, Hoskin & Harcourt, Montréal.

Solicitors for the intervener the Advocates’ Society: Irving Mitchell Kalichman, Montréal.

Solicitors for the intervener Barreau du Québec: Langlois lawyers, Québec.

Federation of Law Societies of Canada

By for the law societies members of the

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R. v. Stinchcombe

[1991] 3 S.C.R. 326 CanLII - 1991 CanLII 45 (SCC)

1/6/2019 CanLII - 1991 CanLII 45 (SCC) 78

R. v. Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC)

Date: 1991-11-07
File 21904
number:
Other 130 NR 277; [1992] 1 WWR 97; 120 AR 161; 83 Alta LR (2d) 193; 68 CCC (3d) 1; 8 CR (4th) 277;
citations: 18 CRR (2d) 210; AZ-91111102; [1991] CarswellAlta 192; JE 91-1713; [1991] SCJ No 83 (QL);
[1991] SJ No 83 (QL); 14 WCB (2d) 266; [1991] ACS no 83; 8 WAC 161
Citation: R. v. Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC), <http://canlii.ca/t/1fsgp>, retrieved on 2019-
01-06

R. v. Stinchcombe, [1991] 3 S.C.R. 326

William B. Stinchcombe Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Stinchcombe

File No.: 21904.

1991: May 2; 1991: November 7.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for alberta

Criminal law ‑‑ Evidence ‑‑ Crown's obligation to make disclosure to defence ‑‑ Witness favourable to
accused interviewed by police ‑‑ Crown not calling witness and refusing to produce statements obtained ‑‑ Whether
Crown obliged to disclose statements.

The accused, a lawyer, was charged with breach of trust, theft and fraud. A former secretary of his was a
Crown witness at the preliminary inquiry, where she gave evidence apparently favourable to the defence. After the
preliminary inquiry but prior to trial, the witness was interviewed by an RCMP officer and a tape‑recorded
statement was taken. Later, during the course of the trial, the witness was again interviewed by a police officer and
a written statement taken. Defence counsel was informed of the existence but not of the content of the statements.
His requests for disclosure were refused. During the trial defence counsel learned conclusively that the witness
would not be called by the Crown and sought an order that the witness be called or that the Crown disclose the
contents of the statements to the defence. The trial judge dismissed the application. The trial proceeded and the
accused was convicted of breach of trust and fraud. Conditional stays were entered with respect to the theft counts.
The Court of Appeal affirmed the convictions without giving reasons.

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Held: The appeal should be allowed and a new trial ordered.

The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the
investigation which are in its possession 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. The obligation to disclose is subject to a discretion
with respect to the withholding of information and to the timing and manner of disclosure. Crown counsel has a
duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised
with respect to the relevance of information. The Crown's discretion is reviewable by the trial judge, who should be
guided by the general principle that information should not be withheld if there is a reasonable possibility that this
will impair the right of the accused to make full answer and defence. The absolute withholding of information
which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which
excludes the information from disclosure. This privilege is reviewable, however, on the ground that it is not a
reasonable limit on the right to make full answer and defence in a particular case.

Counsel for the accused must bring to the trial judge's attention at the earliest opportunity any failure of
the Crown to comply with its duty to disclose of which counsel becomes aware. This will enable the trial judge to
remedy any prejudice to the accused if possible and thus avoid a new trial.

Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead.
Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to
introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All
statements obtained from persons who have provided relevant information to the authorities should be produced,
even if they are not proposed as Crown witnesses. Where statements are not in existence, other information such as
notes should be produced. If there are no notes, all information in the prosecution's possession relating to any
relevant evidence the person could give should be supplied.

Crown counsel was not justified in refusing disclosure here on the ground that the witness was not
worthy of credit: whether the witness is credible is for the trial judge to determine after hearing the evidence. The
trial judge ought to have examined the statements. Since the information withheld might have affected the outcome
of the trial, the failure to disclose impaired the right to make full answer and defence. There should be a new trial at
which the statements are produced.

Cases Cited

Referred to: Cunliffe v. Law Society of British Columbia (1984), 1984 CanLII 537 (BC CA), 40 C.R.
(3d) 67; Savion v. The Queen (1980), 1980 CanLII 2872 (ON CA), 13 C.R. (3d) 259; R. v. Bourget (1987), 1987
CanLII 208 (SK CA), 56 C.R. (3d) 97; Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16; Marks v.
Beyfus (1890), 25 Q.B.D. 494; R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979; Bisaillon v. Keable, 1983
CanLII 26 (SCC), [1983] 2 S.C.R. 60; Solicitor General of Canada v. Royal Commission of Inquiry (Health
Records in Ontario), 1981 CanLII 33 (SCC), [1981] 2 S.C.R. 494; Dersch v. Canada (Attorney General), 1990
CanLII 3820 (SCC), [1990] 2 S.C.R. 1505; Lemay v. The King, 1951 CanLII 27 (SCC), [1952] 1 S.C.R. 232; R. v.
C. (M.H.), 1991 CanLII 94 (SCC), [1991] 1 S.C.R. 763, aff'g (1988), 1988 CanLII 3283 (BC CA), 46 C.C.C. (3d)
142; Caccamo v. The Queen, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786; Piché v. The Queen, 1970 CanLII 182
(SCC), [1971] S.C.R. 23; Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640; McInroy v. The
Queen, 1978 CanLII 175 (SCC), [1979] 1 S.C.R. 588; R. v. Mannion, 1986 CanLII 31 (SCC), [1986] 2 S.C.R. 272.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 294(a), 296, 338(1)(a).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 334(a), 336, 380(1)(a), 482, 603.

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Criminal Justice Act 1967 (U.K.), 1967, c. 80.

Authors Cited

Bench and Bar Council of Ontario. Special Committee on Preliminary Hearings. Report of the Special
Committee on Preliminary Hearings. Toronto: Bench and Bar Council of Ontario, 1982.

Canada. Law Reform Commission. Report 22. Disclosure by the Prosecution. Ottawa: Minister of Supply
and Services Canada, 1984.

Canada. Law Reform Commission. Working Paper 4. Criminal Procedure: Discovery. Ottawa: Information
Canada, 1974.

Nova Scotia. Royal Commission on the Donald Marshall, Jr., Prosecution, Vol. 1, Findings and
Recommendations. Halifax: The Commission, 1989.

APPEAL from a judgment of the Alberta Court of Appeal affirming the judgment of Brennan J. sitting
without a jury convicting the appellant of breach of trust and fraud. Appeal allowed.

William E. Code, Q.C., and John Kingman Phillips, for the appellant.

Daniel M. McDonald, Q.C., and Bruce R. Fraser, Q.C., for the respondent.

//Sopinka J.//

The judgment of the Court was delivered by

SOPINKA J. -- This appeal raises the issue of the Crown's obligation to make disclosure to the defence.
A witness who gave evidence at the preliminary inquiry favourable to the accused was subsequently interviewed by
agents for the Crown. Crown counsel decided not to call the witness and would not produce the statements obtained
at the interview. The trial judge refused an application by the defence for disclosure on the ground that there was no
obligation on the Crown to disclose the statements. The Court of Appeal affirmed the judgment at trial and the case
is here with leave of this Court.

1. Facts

The appellant was a Calgary lawyer charged with appropriating certain financial instruments from a
client, one Jack Abrams. The indictment charged thirteen counts of criminal breach of trust contrary to s. 296 of the
Criminal Code, R.S.C. 1970, c. C-34 (now s. 336), thirteen counts of theft contrary to s. 294(a) (now s. 334(a)) of
the Code, and one count of fraud contrary to s. 338(1)(a) (now s. 380(1)(a)) of the Code. The trial in the Alberta
Court of Queen's Bench was before Brennan J. without a jury.

The Crown alleged that the appellant had wrongfully appropriated property which he held in trust for
Abrams. The defence did not contest the receipt of funds by the appellant. The defence did contend, however, that
despite Stinchcombe's formal status as trustee of the property, Abrams had in fact made Stinchcombe his business
partner. Under this theory, Stinchcombe had acted as he was legally entitled to act. At issue therefore was the
actual, as opposed to the formal, nature of the relationship between the two men.

Patricia Lineham is a former secretary of Mr. Stinchcombe. She was a Crown witness at the preliminary
inquiry. There, she gave evidence which was, apparently, very favourable to the defence regarding the conduct of
Abrams. The precise content of this testimony was not before the trial judge and is not in the record. Lineham was
not listed on the indictment, but was subpoenaed by the Crown.

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After the preliminary inquiry but prior to the trial, Lineham was interviewed by an RCMP officer. A
tape-recorded statement was taken. Crown counsel informed defence counsel of the existence but not the content of
this statement. A request for disclosure was refused. Later, during the course of the trial, Lineham was again
interviewed by a police officer and a written statement taken. Again, though defence counsel was advised of the
existence of the statement, a request for disclosure was refused. Crown counsel also indicated that he would not be
calling Lineham as she was not worthy of credit.

It was not until the third day of the trial that defence counsel learned conclusively that Lineham would
not be called by the Crown. At this time, he moved before the trial judge for an order that (i) the Crown call the
witness, or (ii) the Court call the witness, or (iii) the Crown disclose the contents of the statements to the defence. A
review of the record makes it clear that defence counsel was pressing for access to, or production of, both the tape-
recorded and written statements and was not pressing the alternative requests. In support of this motion, counsel for
the defendant indicated that Ms. Lineham refused to speak to him or his staff when they attempted to interview her
about the contents of the statements. Crown counsel did not provide any basis for resisting production other than to
say that in his view the potential witness was not worthy of credit.

The trial judge dismissed the application. Brennan J. ruled that under the circumstances there was no
obligation on the Crown to call the witness and that there was no obligation on the Crown to disclose the contents of
the statements. The trial proceeded, and the accused was found guilty of all twenty-seven counts charged. A
conditional stay was entered with respect to the thirteen theft counts. The Alberta Court of Appeal dismissed the
appeal from conviction without issuing reasons. Leave to appeal to this Court was granted on the disclosure issue.

During argument before this Court, an application was made by the Crown to adduce the statements and
the tape as fresh evidence. This application was rejected. The principal basis for the rejection was that at this stage
it would be impossible to determine whether the statements would have been material to the defence if produced at
trial.

2. Crown's Obligation to Disclose

The circumstances which give rise to this case are testimony to the fact that the law with respect to the
duty of the Crown to disclose is not settled. A number of cases have addressed some aspects of the subject. See, for
example, Cunliffe v. Law Society of British Columbia (1984), 1984 CanLII 537 (BC CA), 40 C.R. (3d) 67
(B.C.C.A.); Savion v. The Queen (1980), 1980 CanLII 2872 (ON CA), 13 C.R. (3d) 259 (Ont. C.A.); R. v. Bourget
(1987), 1987 CanLII 208 (SK CA), 56 C.R. (3d) 97 (Sask. C.A.). No case in this Court has made a comprehensive
examination of the subject. The Law Reform Commission of Canada, in a 1974 working paper titled Criminal
Procedure: Discovery (the "1974 Working Paper") and a 1984 report titled Disclosure by the Prosecution (the "1984
Report"), recommended comprehensive schemes regulating disclosure by the Crown but no legislative action has
been taken implementing the proposals. Apart from the limited legislative response contained in s. 603 of the
Criminal Code, R.S.C., 1985, c. C-46, enacted in the 1953-54 overhaul of the Code (which itself condensed pre-
existing provisions), legislators have been content to leave the development of the law in this area to the courts.

Production and discovery were foreign to the adversary process of adjudication in its earlier history when
the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both
criminal and civil proceedings. Significantly, in civil proceedings this aspect of the adversary process has long since
disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar
features of the practice. This change resulted from acceptance of the principle that justice was better served when
the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of
complete information of the case to be met. Surprisingly, in criminal cases in which the liberty of the subject is
usually at stake, this aspect of the adversary system has lingered on. While the prosecution bar has generally co-
operated in making disclosure on a voluntary basis, there has been considerable resistance to the enactment of
comprehensive rules which would make the practice mandatory. This may be attributed to the fact that proposals
for reform in this regard do not provide for reciprocal disclosure by the defence (see 1974 Working Paper at pp. 29-
31; 1984 Report at pp. 13-15; Marshall Commission Report, infra, Vol. 1, at pp. 242-44).

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It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose
all relevant information. The arguments against the existence of such a duty are groundless while those in favour,
are, in my view, overwhelming. The suggestion that the duty should be reciprocal may deserve consideration by
this Court in the future but is not a valid reason for absolving the Crown of its duty. The contrary contention fails to
take account of the fundamental difference in the respective roles of the prosecution and the defence. In Boucher v.
The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, Rand J. states, at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is
to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a
crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be
done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor
excludes any notion of winning or losing; his function is a matter of public duty than which in civil life
there can be none charged with greater personal responsibility. It is to be efficiently performed with an
ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

I would add 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. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely
adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being
consistent with this role.

Other grounds advanced by advocates of the absence of a general duty to disclose all relevant
information are that it would impose onerous new obligations on the Crown prosecutors resulting in increased
delays in bringing accused persons to trial. This ground is not supported by the material in the record. As I have
already observed, disclosure is presently being made on a voluntary basis. The extent of disclosure varies from
province to province, from jurisdiction to jurisdiction and from prosecutor to prosecutor. The adoption of uniform,
comprehensive rules for disclosure by the Crown would add to the work-load of some Crown counsel but this
would be offset by the time saved which is now spent resolving disputes such as this one surrounding the extent of
the Crown's obligation and dealing with matters that take the defence by surprise. In the latter case an adjournment
is frequently the result of non-disclosure or more time is taken by a defence counsel who is not prepared. There is
also compelling evidence that much time would be saved and therefore delays reduced by reason of the increase in
guilty pleas, withdrawal of charges and shortening or waiver of preliminary hearings. The 1984 Report (at pp. 6-9)
refers to several experimental projects which were established after the publication of the 1974 Working Paper in
order to test the viability of pre-trial disclosure. The result of these experiments, and in particular the Montreal
experiment, which was the most exhaustively evaluated, was that there was a significant increase in the number of
cases settled and pleas of guilty entered or charges withdrawn.

In England, under the provisions of the Criminal Justice Act 1967 (U.K.), 1967, c. 80, a "packet" of
material is furnished to defence counsel. The provision of such material has led to a reduction in the length and
number of preliminary hearings in that jurisdiction: Report of the Special Committee on Preliminary Hearings,
Bench and Bar Council of Ontario (1982), at pp. 12-15.

Refusal to disclose is also justified on the ground that the material will be used to enable the defence to
tailor its evidence to conform with information in the Crown's possession. For example, a witness may change his
or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not
impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong
in a witness refreshing his or her memory from a previous statement or document. The witness may even change
his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the
witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing
contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search
for truth is advanced rather than retarded by disclosure of all relevant material.

Finally, it is suggested that disclosure may put at risk the security and safety of persons who have
provided the prosecution with information. No doubt measures must occasionally be taken to protect the identity of
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witnesses and informers. Protection of the identity of informers is covered by the rules relating to informer privilege
and exceptions thereto (see Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.); R. v. Scott, 1990 CanLII 27 (SCC),
[1990] 3 S.C.R. 979), and any rules with respect to disclosure would be subject to this and other rules of privilege.
With respect to witnesses, persons who have information that may be evidence favourable to the accused will have
to have their identity disclosed sooner or later. Even the identity of an informer is subject to this fact of life by
virtue of the "innocence exception" to the informer privilege rule (Marks v. Beyfus, supra, at pp. 498-99; R. v. Scott,
supra, at p. 996; Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, at p. 93; Solicitor General of
Canada v. Royal Commission of Inquiry (Health Records in Ontario), 1981 CanLII 33 (SCC), [1981] 2 S.C.R.
494). It will, therefore, be a matter of the timing of the disclosure rather than whether disclosure should be made at
all. The prosecutor must retain a degree of discretion in respect of these matters. The discretion, which will be
subject to review, should extend to such matters as excluding what is clearly irrelevant, withholding the identity of
persons to protect them from harassment or injury, or to enforce the privilege relating to informers. The discretion
would also extend to the timing of disclosure in order to complete an investigation. I shall return to this subject later
in these reasons.

This review of the pros and cons with respect to disclosure by the Crown shows that there is no valid
practical reason to support the position of the opponents of a broad duty of disclosure. Apart from the practical
advantages to which I have referred, there is the overriding concern that failure to disclose impedes the ability of the
accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion
in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice. (See
Dersch v. Canada (Attorney General), 1990 CanLII 3820 (SCC), [1990] 2 S.C.R. 1505, at p. 1514.) The right to
make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the
innocent are not convicted. Recent events have demonstrated that the erosion of this right due to non-disclosure was
an important factor in the conviction and incarceration of an innocent person. In the Royal Commission on the
Donald Marshall, Jr., Prosecution, Vol. 1: Findings and Recommendations (1989) (the "Marshall Commission
Report"), the Commissioners found that prior inconsistent statements were not disclosed to the defence. This was
an important contributing factor in the miscarriage of justice which occurred and led the Commission to state that
"anything less than complete disclosure by the Crown falls short of decency and fair play" (Vol. 1 at p. 238). The
Commission recommended an extensive regime of disclosure of which the key provisions are as follows (Vol. 1 at
p. 243):

2(1) Without request, the accused is entitled, before being called upon to elect the mode of trial or to plead to the
charge of an indictable offence, whichever comes first, and thereafter:

(a) to receive a copy of his criminal record;

(b) to receive a copy of any statement made by him to a person in authority and recorded in writing or to inspect
such a statement if it has been recorded by electronic means; and to be informed of the nature and
content of any verbal statement alleged to have been made by the accused to a person in authority
and to be supplied with any memoranda in existence pertaining thereto;

(c) to inspect anything that the prosecutor proposes to introduce as an exhibit and, where practicable, receive
copies thereof;

(d) to receive a copy of any statement made by a person whom the prosecutor proposes to call as a witness or
anyone who may be called as a witness, and recorded in writing or, in the absence of a statement, a
written summary of the anticipated testimony of the proposed witness, or anyone who may be
called as a witness;

(e) to receive any other material or information known to the Crown and which tends to mitigate or negate the
defendant's guilt as to the offence charged, or which would tend to reduce his punishment therefor,
notwithstanding that the Crown does not intend to introduce such material or information as
evidence;

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(f) to inspect the electronic recording of any statement made by a person whom the prosecutor proposes to call as a
witness;

(g) to receive a copy of the criminal record of any proposed witness; and

(h) to receive, where not protected from disclosure by the law, the name and address of any other person who may
have information useful to the accused, or other details enabling that person to be identified.

2(2) The disclosure contemplated in subsection (1), paragraphs (d), (e) and (h) shall be provided by the Crown and
may be limited only where, upon an inter partes application by the prosecutor, supported by evidence
showing a likelihood that such disclosure will endanger the life or safety of such person or interfere
with the administration of justice, a justice having jurisdiction in the matter deems it just and proper.

In my opinion there is a wholly natural evolution of the law in favour of disclosure by the Crown of all
relevant material. As long ago as 1951, Cartwright J. stated in Lemay v. The King, 1951 CanLII 27 (SCC), [1952] 1
S.C.R. 232, at p. 257:

I wish to make it perfectly clear that I do not intend to say anything which might be regarded as lessening
the duty which rests upon counsel for the Crown to bring forward evidence of every material fact
known to the prosecution whether favourable to the accused or otherwise.... [Emphasis added.]

This statement may have been in reference to the obligation resting on counsel for the Crown to call evidence rather
than to disclose the material to the defence, but I see no reason why this obligation should not be discharged by
disclosing the material to the defence rather than obliging the Crown to make it part of the Crown's case. Indeed,
some of the information will be in a form that cannot be put in evidence by the Crown but can be used by the
defence in cross-examination or otherwise. Production to the defence is then the only way in which the injunction
of Cartwright J. can be obeyed.

In R. v. C. (M.H.) (1988), 1988 CanLII 3283 (BC CA), 46 C.C.C. (3d) 142 (B.C.C.A.), at p. 155,
McEachern C.J.B.C. after a review of the authorities stated what I respectfully accept as a correct statement of the
law. He said that: "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
passage was cited with approval by McLachlin J. in her reasons on behalf of the Court (1991 CanLII 94 (SCC),
[1991] 1 S.C.R. 763). She went on to add: "This Court has previously stated that the Crown is under a duty at
common law to disclose to the defence all material evidence whether favourable to the accused or not" (p. 774).

As indicated earlier, however, this obligation to disclose is not absolute. It is subject to the discretion of
counsel for the Crown. This discretion extends both to the withholding of information and to the timing of
disclosure. For example, counsel for the Crown has a duty to respect the rules of privilege. In the case of informers
the Crown has a duty to protect their identity. In some cases serious prejudice or even harm may result to a person
who has supplied evidence or information to the investigation. While it is a harsh reality of justice that ultimately
any person with relevant evidence must appear to testify, the discretion extends to the timing and manner of
disclosure in such circumstances. A discretion must also be exercised with respect to the relevance of information.
While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant. The experience to
be gained from the civil side of the practice is that counsel, as officers of the court and acting responsibly, can be
relied upon not to withhold pertinent information. Transgressions with respect to this duty constitute a very serious
breach of legal ethics. The initial obligation to separate "the wheat from the chaff" must therefore rest with Crown
counsel. There may also be situations in which early disclosure may impede completion of an investigation.
Delayed disclosure on this account is not to be encouraged and should be rare. Completion of the investigation
before proceeding with the prosecution of a charge or charges is very much within the control of the Crown.
Nevertheless, it is not always possible to predict events which may require an investigation to be re-opened and the
Crown must have some discretion to delay disclosure in these circumstances.

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The discretion of Crown counsel is, however, reviewable by the trial judge. Counsel for the defence can
initiate a review when an issue arises with respect to the exercise of the Crown's discretion. On a review the Crown
must justify its refusal to disclose. Inasmuch as disclosure of all relevant information is the general rule, the Crown
must bring itself within an exception to that rule.

The trial judge on a review should be guided by the general principle that information ought not to be
withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused
to make full answer and defence, unless the non-disclosure is justified by the law of privilege. The trial judge might
also, in certain circumstances, conclude that the recognition of an existing privilege does not constitute a reasonable
limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of
privilege. The trial judge may also review the decision of the Crown to withhold or delay production of information
by reason of concern for the security or safety of witnesses or persons who have supplied information to the
investigation. In such circumstances, while much leeway must be accorded to the exercise of the discretion of the
counsel for the Crown with respect to the manner and timing of the disclosure, the absolute withholding of
information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege
which excludes the information from disclosure.

The trial judge may also review the Crown's exercise of discretion as to relevance and interference with
the investigation to ensure that the right to make full answer and defence is not violated. I am confident that
disputes over disclosure will arise infrequently when it is made clear that counsel for the Crown is under a general
duty to disclose all relevant information. The tradition of Crown counsel in this country in carrying out their role as
"ministers of justice" and not as adversaries has generally been very high. Given this fact, and the obligation on
defence counsel as officers of the court to act responsibly, these matters will usually be resolved without the
intervention of the trial judge. When they do arise, the trial judge must resolve them. This may require not only
submissions but the inspection of statements and other documents and indeed, in some cases, viva voce evidence. A
voir dire will frequently be the appropriate procedure in which to deal with these matters.

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure
of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will
enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v.
The Queen, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an
important factor in determining on appeal whether a new trial should be ordered.

These are the general principles that govern the duty of the Crown to make disclosure to the defence.
There are many details with respect to their application that remain to be worked out in the context of concrete
situations. It would be neither possible nor appropriate to attempt to lay down precise rules here. Although the basic
principles of disclosure will apply across the country, the details may vary from province to province and even
within a province by reason of special local conditions and practices. It would, therefore, be useful if the under-
utilized power conferred by s. 482 of the Criminal Code which empowers superior courts and courts of criminal
jurisdiction to enact rules were employed to provide further details with respect to the procedural aspects of
disclosure.

The general principles referred to herein arise in the context of indictable offences. While it may be
argued that the duty of disclosure extends to all offences, many of the factors which I have canvassed may not apply
at all or may apply with less impact in summary conviction offences. Moreover, the content of the right to make full
answer and defence entrenched in s. 7 of the Charter may be of a more limited nature. A decision as to the extent to
which the general principles of disclosure extend to summary conviction offences should be left to a case in which
the issue arises in such proceedings. In view of the number and variety of statutes which create such offences,
consideration would have to be given as to where to draw the line. Pending a decision on that issue, the voluntary
disclosure which has been taking place through the co-operation of Crown counsel will no doubt continue.
Continuation and extension of this practice may eliminate the necessity for a decision on the issue by this Court.

There are, however, two additional matters which require further elaboration of the general principles of
disclosure outlined above. They are: (1) the timing of disclosure, and (2) what should be disclosed. Some detail
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with respect to these issues is essential if the duty to disclose is to be meaningful. Moreover, with respect to the
second matter, resolution of the dispute over disclosure in this case requires a closer examination of the issue.

With respect to timing, I agree with the recommendation of the Law Reform Commission of Canada in
both of its reports that initial disclosure should occur before the accused is called upon to elect the mode of trial or to
plead. These are crucial steps which the accused must take which affect his or her rights in a fundamental way. It
will be of great assistance to the accused to know what are the strengths and weaknesses of the Crown's case before
committing on these issues. As I have pointed out above, the system will also profit from early disclosure as it will
foster the resolution of many charges without trial, through increased numbers of withdrawals and pleas of guilty.
The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be
made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with
so as to enable the accused sufficient time before election or plea to consider the information. In the rare cases in
which the accused is unrepresented, Crown counsel should advise the accused of the right to disclosure and a plea
should not be taken unless the trial judge is satisfied that this has been done. At this stage, the Crown's brief will
often not be complete and disclosure will be limited by this fact. Nevertheless, the obligation to disclose is a
continuing one and disclosure must be completed when additional information is received.

With respect to what should be disclosed, the general principle to which I have referred is that all relevant
information must be disclosed subject to the reviewable discretion of the Crown. The material must include not
only that which the Crown intends to introduce into evidence but also that which it does not. No distinction should
be made between inculpatory and exculpatory evidence. The attempt to make this distinction in connection with the
confession rule proved to be unworkable and was eventually discarded by this Court. See Piché v. The Queen, 1970
CanLII 182 (SCC), [1971] S.C.R. 23, at p. 36; Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640,
at p. 645. To re-introduce the distinction here would lead to interminable controversy at trial that should be
avoided. The Crown must, therefore, disclose relevant material whether it is inculpatory or exculpatory.

A special problem arises in respect to witness statements and is specifically raised in this case. There is
virtually no disagreement that statements in the possession of the Crown obtained from witnesses it proposes to call
should be produced. In some cases the statement will simply be recorded in notes taken by an investigator, usually
a police officer. The notes or copies should be produced. If notes do not exist then a "will say" statement,
summarizing the anticipated evidence of the witness, should be produced based on the information in the Crown's
possession. A more difficult issue is posed with respect to witnesses and other persons whom the Crown does not
propose to call. In its 1974 Working Paper, the Law Reform Commission of Canada recommended disclosure of
not only the names, addresses and occupations of all "persons who have provided information to investigation or
prosecution authorities" (p. 41), but the statements obtained or, if these did not exist, "a summary of the information
provided by those persons not intended to be called at trial, along with a statement of the manner in which the
information in each summary has been obtained..." (p. 41). In its 1984 Report, the Commission seemed to have
changed its mind. It stated (at pp. 27-28):

With respect to potential witnesses we do not recommend, on a mandatory basis, the type of thorough
disclosure that we recommend with respect to proposed witnesses. Complete disclosure would entail
not only the identification of such persons, but the disclosure of any statement they made and in some
cases their criminal records. In our view a recommendation to this effect would be excessive and
disproportionate to the needs of the defence. In many instances these people are of no use, or of
marginal use, to the case for either side. Their statements are not evidence, although they may be
effectively used by the prosecution for purposes of impeachment in cross-examination in the event the
witness is called by the accused. Prosecutors are understandably reluctant to disclose these statements
because to do so would imperil their principal utility. It is our view that the interests of the defence are
adequately served by the mandatory disclosure of the identity of such persons, although we would not
wish our comments to discourage prosecutors from disclosing statements and other relevant information
on a voluntary basis.

The Marshall Commission Report recommended disclosure of "any statement made by a person whom
the prosecutor proposes to call as a witness or anyone who may be called as a witness". Although not entirely clear,
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this recommendation appears to extend to anyone who has relevant information and who is either compellable or
prepared to testify whether proposed to be called by the Crown or not.

This Court, in R. v. C. (M.H.), supra, dealt with the failure to disclose either the identity or statement of a
person who provided relevant information to the police but who was not called as a witness. McLachlin J., speaking
for the Court, indicated that failure to disclose in such cases could impair the fairness of the trial.

I am of the opinion that, subject to the discretion to which I have referred above, all statements obtained
from persons who have provided relevant information to the authorities should be produced notwithstanding that
they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes
should be produced, and, if there are no notes, then in addition to the name, address and occupation of the witness,
all information in the possession of the prosecution relating to any relevant evidence that the person could give
should be supplied. I do not find the comments of the Commission in its 1984 Report persuasive. If the information
is of no use then presumably it is irrelevant and will be excluded in the exercise of the discretion of the Crown. If
the information is of some use then it is relevant and the determination as to whether it is sufficiently useful to put
into evidence should be made by the defence and not the prosecutor. Moreover, I do not understand the
Commission's statement that "[t]heir statements are not evidence". That is true of all witness statements. They
themselves are not evidence but are produced not because they will be put in evidence in that form but will enable
the evidence to be called viva voce. That prosecutors are reluctant to disclose statements because use of them in
cross-examination is thereby rendered less effective is understandable. That is an objection to all forms of discovery
and disclosure. Tactical advantage must be sacrificed in the interests of fairness and the ascertainment of the true
facts of the case.

3. Application to This Case

No request was made in this case for disclosure prior to pleading or electing the mode of trial and this
issue does not, therefore, arise. A request for disclosure was made during the trial for the disclosure of two
statements taken subsequent to the preliminary hearing. An application for disclosure was dismissed by the trial
judge on the ground that there was no obligation on the Crown to disclose the statements.

Applying the above principles, I conclude that the following errors were committed:

(1)Counsel for the Crown misconceived his obligation to disclose the statements;

(2)The explanation for refusal that the witness was not worthy of credit was completely inadequate to support the
exercise of this discretion on the ground of irrelevance. Whether the witness is credible is for the
trial judge to determine after hearing the evidence;

(3)The trial judge ought to have examined the statements. The suggestion that this would have prejudiced the trial
judge is without merit. Trial judges are frequently apprised of evidence which is ruled
inadmissible. One example is a confession that fails to meet the test of voluntariness. No one
would suggest that knowledge of such evidence prejudices the trial judge. We operate on the
principle that a judge trained to screen out inadmissible evidence will disabuse himself or herself of
such evidence;

(4)The trial judge erred in his statement of the duty to disclose on the part of the Crown.

It was submitted that the appellant was not deprived of the opportunity to make full answer and defence
because he could have:

(a)interviewed the witness and obtained his own statement;

(b)called the witness, and if her evidence proved adverse, cross-examined on the basis of the preliminary hearing
transcript.
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With respect to (a), counsel for the appellant pointed out that the witness refused to be interviewed. In
any event, even if such an interview took place, what the witness said on two prior occasions could be very material
to the defence.

As for (b), counsel for the defence is entitled to know whether the witness he/she is calling will give
evidence that will assist the defence or whether the witness will be adverse and necessitate an application to cross-
examine on the basis of a prior inconsistent statement. The latter usually creates an undesirable atmosphere at the
trial and the most that can be achieved is to impeach or destroy the credibility of the witness. See McInroy v. The
Queen, 1978 CanLII 175 (SCC), [1979] 1 S.C.R. 588, and R. v. Mannion, 1986 CanLII 31 (SCC), [1986] 2 S.C.R.
272, at pp. 277-78. Most counsel faced with this prospect would likely opt not to call the witness, a matter which
bears on the right to make full answer and defence.

What are the legal consequences flowing from the failure to disclose? In my opinion, when a court of
appeal is called upon to review a failure to disclose, it must consider whether such failure impaired the right to make
full answer and defence. This in turn depends on the nature of the information withheld and whether it might have
affected the outcome. As McLachlin J. put it in R. v. C. (M.H.), supra, at. p. 776:

Had counsel for the appellant been aware of this statement, he might well have decided to use it in support of the
defence that the evidence of the complainant was a fabrication. In my view, that evidence could
conceivably have affected the jury's conclusions on the only real issue, the respective credibility of
the complainant and the appellant.

In this case, we are told that the witness gave evidence at the preliminary hearing favourable to the
defence. The subsequent statements were not produced and therefore we have no indication from the trial judge as
to whether they were favourable or unfavourable. Examination of the statements, which were tendered as fresh
evidence in this Court, should be carried out at trial so that counsel for the defence, in the context of the issues in the
case and the other evidence, can explain what use might be made of them by the defence. In the circumstances, we
must assume that non-production of the statements was an important factor in the decision not to call the witness.
The absence of this evidence might very well have affected the outcome.

Accordingly, I would allow the appeal and direct a new trial at which the statements should be produced.

Appeal allowed.

Solicitors for the appellant: Code Hunter, Calgary.

Solicitor for the respondent: The Attorney General for Alberta, Calgary.

Federation of Law Societies of Canada

By for the law societies members of the

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 90

Nelles v. Ontario

[1989] 2 SCR 170, 1989 CanLII 77 (SCC)

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Nelles v. Ontario, [1989] 2 SCR 170, 1989 CanLII 77 (SCC)

Date: 1989-08-14
File 19598
number:
Other 69 OR (2d) 448; 60 DLR (4th) 609; 98 NR 321; 35 OAC 161; 71 CR (3d) 358; 49 CCLT 217; 37 CPC (2d) 1;
citations: 41 Admin LR 1; 42 CRR 1; [1989] CarswellOnt 415; EYB 1989-67463; JE 89-1206; [1989] SCJ No 86 (QL);
16 ACWS (3d) 318; [1989] ACS no 86
Citation: Nelles v. Ontario, [1989] 2 SCR 170, 1989 CanLII 77 (SCC), <http://canlii.ca/t/1ft2z>, retrieved on 2019-01-
06

Nelles v. Ontario, [1989] 2 S.C.R. 170

Susan Nelles Appellant

v.

Her Majesty The Queen in right of Ontario,

the Attorney General for Ontario,
John W. Ackroyd, James Crawford,
Jack Press and Anthony Warr Respondents

indexed as: nelles v. ontario

File No.: 19598.

1988: February 29; 1989: August 14.

Present: Dickson C.J. and Beetz*, Estey*, McIntyre, Lamer, Wilson, Le Dain*,
La Forest and L'Heureux‑Dubé JJ.

on appeal from the court of appeal for ontario

   Crown -- Immunity -- Civil action -- Malicious prosecution ‑‑ Whether Crown, Attorney General and Crown
Attorneys are immune from suit for malicious prosecution -- Whether a ruling on the issue of prosecutorial
immunity should be made on an appeal of a preliminary motion -- Proceedings against the Crown Act, R.S.O.
1980, c. 393, s. 5(6) -- Rules of Practice and Procedure, R.R.O. 1980, Reg. 540, Rule 126.

The appellant was charged with the murder of four infants and was discharged on all counts at the conclusion of
the preliminary inquiry. She then brought an action against the Crown in right of Ontario, the Attorney General for
Ontario, and several police officers, alleging that the Attorney General and his agents, the Crown Attorneys,
counselled, aided and abetted the police in charging and prosecuting her and that the Attorney General and the

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Crown Attorneys were actuated by malice. Proceedings were later discontinued against the police officers and the
Crown Attorneys were not named as defendants. Before trial, the respondents moved to have the action dismissed
under Rule 126 of the Ontario Rules of Practice on the ground that the pleadings disclosed no reasonable cause of
action and, in the alternative, for leave under Rule 124 to set down a point of law raised in the pleadings and to
argue it on the return of the motion. The Supreme Court of Ontario allowed the motion and struck out the statement
of claim. The Court of Appeal upheld the judgment. Both the Supreme Court of Ontario and the Court of Appeal
seemed to have acted under Rule 126. This appeal is to determine whether the Crown, the Attorney General and the
Crown Attorneys enjoy an absolute immunity from a suit for malicious prosecution.

   Held (L'Heureux‑Dubé J. dissenting in part): The appeal should be dismissed as against the Crown. The appeal
should be allowed as against the Attorney General and the matter returned to the Supreme Court of Ontario for trial
of the claim against the Attorney General.

The Crown enjoys absolute immunity from a suit for malicious prosecution. Section 5(6) of the Ontario
Proceedings Against the Crown Act exempts the Crown from any proceedings in respect of anything done or
omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature or
responsibilities that he has in connection with the execution of judicial process. The decision to prosecute is a
judicial decision vested in the Attorney General and executed on his behalf by his agents, the Crown Attorneys. The
Crown Attorneys and the Attorney General in deciding to prosecute the appellant came within s. 5(6) of the Act and
the Crown is thus immune from liability to the appellant.

   Per Dickson C.J. and Lamer and Wilson JJ.: There is no need for a trial to permit a conclusion on the question of
prosecutorial immunity. This issue, disposed of in the courts below upon a pre‑trial motion under Rule 124 or Rule
126 of the Ontario Rules of Practice, should be addressed by this Court. The issue has been given careful
consideration in the Court of Appeal and in argument before this Court. To send the matter back for trial without
resolving the issue would not be expeditious and would add both time and cost to an already lengthy case. The rules
of civil procedure should not act as obstacles to a just and expeditious resolution of a case.

The Attorney General and Crown Attorneys are not immune from suits for malicious prosecution. A review of the
authorities on the issue of prosecutorial immunity reveals that the matter ultimately boils down to a question of
policy. In the interests of public policy, an absolute immunity for the Attorney General and his agents, the Crown
Attorneys, is not justified. An absolute immunity has the effect of negating a private right of action and in some
cases may bar a remedy under the Canadian Charter of Rights and Freedoms. As such, the existence of absolute
immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted. While
the policy considerations in favour of absolute immunity have some merit, these considerations must give way to
the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the
result that he causes damage to the victim. The tort of malicious prosecution requires not only proof of an absence
of reasonable and probable cause for commencing the proceedings but also proof of an improper purpose or motive,
a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve
and as such incorporates an abuse of the office of the Attorney General and his agents the Crown Attorneys. The
inherent difficulty in proving a case of malicious prosecution combined with the mechanisms available within the
system of civil procedure to weed out meritless claims is sufficient to ensure that the Attorney General and Crown
Attorneys will not be hindered in the proper execution of their important public duties. Finally, attempts to qualify
prosecutorial immunity in the United States by the so‑called functional approach and its many variations have
proven to be unsuccessful.

   Per La Forest J.: The common law position as set out by Lamer J. is accepted. The Charter implications need not
be considered.

   Per McIntyre J.: The state of the law relating to the immunity of the Attorney General is far from clear and a
ruling on a point of this importance should not be made on an appeal of a preliminary motion. Before laying down
any proposition to the effect that the Attorney General and his agents enjoy absolute immunity from civil suit, there
should be a trial to permit a conclusion on the question of prosecutorial immunity and to provide ‑‑ in the event that

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it is decided that the immunity is not absolute ‑‑ a factual basis for a determination of whether or not in this case the
conduct of the prosecution was such that the appellant is entitled to a remedy.

Furthermore, the Attorney General's immunity from judicial review, which is based on the exercise of a judicial
function, does not equate with immunity from civil suit for damages for wrongful conduct in the performance of
prosecutorial functions which do not involve the exercise of a judicial function. Indeed, most of the functions and
acts performed by Crown Attorneys as agents of the Attorney General would fall into this category and, accordingly,
the immunity may not extend to claims for damages as a result of a prosecution, however instituted, that is carried
out with malice. A ruling on a preliminary motion to the effect that Attorneys General and their agents are
absolutely immune from all liability for suits for malicious prosecution may be too expansive and even ill‑founded.

This case, therefore, should not have been disposed of upon a pre‑trial motion under Rule 126 of the Ontario Rules
of Practice. Under that rule, it is only in the clearest of cases that an action should be struck out. This is not such a
case.

    Per L'Heureux‑Dubé J. (dissenting in part): Appellant's action is completely dependent upon whether or not
Attorneys General and Crown Attorneys are immune from civil suit and, as such, the matter can and should be
decided by this Court in the present appeal. While, in general, important questions should not be disposed of in
interlocutory fashion, this rule does not apply where the defence offered at the outset is one of law only ‑‑ namely,
that the right of action is barred independently of the facts alleged. There is every advantage, in terms of saving the
time and cost of a trial, to decide a question of law at the outset. This, in fact, is the very reason for the existence of
Rule 126 of the Ontario Rules of Practice.

Adopting the reasons of the Ontario Court of Appeal, the Attorneys General and Crown Attorneys enjoy an
absolute immunity from civil suit when they are acting within the bounds of their authority. The role of absolute
immunity is not to protect the interests of the individual holding the office but rather to advance the greater public
good. The Attorneys General and Crown Attorneys are often faced with difficult decisions as to whether to proceed
in matters which come before them and their freedom of action is vital to the effective functioning of our criminal
justice system.

Cases Cited

By Lamer J.

Considered:  Imbler v. Pachtman, 424 U.S. 409 (1976); referred to:  Owsley v. The Queen in right of Ontario
(1983), 34 C.P.C. 96; Richman v. McMurtry (1983), 1983 CanLII 1883 (ON SC), 41 O.R. (2d) 559; Levesque v.
Picard (1985), 66 N.B.R. (2d) 87; Curry v. Dargie (1984), 28 C.C.L.T. 93; German v. Major (1985), 1985 ABCA
176 (CanLII), 39 Alta. L.R. (2d) 270; Wilkinson v. Ellis, 484 F. Supp. 1072 (1980); Marrero v. City of Hialeah, 625
F.2d 499 (1980), cert. denied, 450 U.S. 913 (1981); Taylor v. Kavanagh, 640 F.2d 450 (1981); Riches v. Director of
Public Prosecutions, [1973] 2 All E.R. 935; Hester v. MacDonald, [1961] S.C. 370; Boucher v. The Queen, 1954
CanLII 3 (SCC), [1955] S.C.R. 16; Hicks v. Faulkner (1878), 8 Q.B.D. 167; Mitchell v. John Heine and Son Ltd.
(1938), 38 S.R. (N.S.W.) 466; Bosada v. Pinos (1984), 1984 CanLII 2096 (ON SC), 44 O.R. (2d) 789; R. v. Groves
(1977), 1977 CanLII 1045 (ON SC), 37 C.C.C. (2d) 429.

By McIntyre J.

Referred to:  Owsley v. The Queen in right of Ontario (1983), 34 C.P.C. 96; Richman v. McMurtry (1983),
1983 CanLII 1883 (ON SC), 41 O.R. (2d) 559; The Queen v. Comptroller‑General of Patents, Designs, and Trade
Marks, [1899] 1 Q.B. 909; Curry v. Dargie (1984), 28 C.C.L.T. 93; Roncarelli v. Duplessis, 1959 CanLII 50
(SCC), [1959] S.C.R. 121; Mostyn v. Fabrigas (1774), 1 Cowp. 161, 98 E.R. 1021; Henly v. Mayor of Lyme
(1828), 5 Bing. 91, 130 E.R. 995; Asoka Kumar David v. Abdul Cader, [1963] 3 All E.R. 579; Imbler v. Pachtman,
424 U.S. 409 (1976); Unterreiner v. Wilson (1982), 1982 CanLII 1814 (ON SC), 40 O.R. (2d) 197 (H.C.), aff'd
(1983), 1983 CanLII 1968 (ON CA), 41 O.R. (2d) 472 (C.A.); Bosada v. Pinos (1984), 1984 CanLII 2096 (ON SC),
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44 O.R. (2d) 789; German v. Major (1985), 1985 ABCA 176 (CanLII), 39 Alta. L.R. (2d) 270; Levesque v. Picard
(1985), 66 N.B.R. (2d) 87; Gregoire v. Biddle, 177 F.2d 579 (1949); Riches v. Director of Public Prosecutions,
[1973] 2 All E.R. 935; Warne v. Province of Nova Scotia (1969), 1 N.S.R. (2d) 27; Re Van Gelder's Patent (1888),
6 R.P.C. 22; Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716; Barrisove v. McDonald, B.C.C.A., No.
490/74, November 1, 1974.

By L'Heureux‑Dubé J. (dissenting in part)

   Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121; Morier v. Rivard, 1985 CanLII 26 (SCC),
[1985] 2 S.C.R. 716; Gregoire v. Biddle, 177 F.2d 579 (1949); Imbler v. Pachtman, 424 U.S. 409 (1976); Yaselli v.
Goff, 12 F.2d 396 (1926).

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 11, 24(1).

Code of Civil Procedure, R.S.Q., c. C‑25, art. 94.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 122, 139(2), (3), 465(1)(b), 504, 579(1) [rep. & subs. c. 27 (1st
Supp.), s. 117], 737.

Crown Attorneys Act, R.S.O. 1980, c. 107.

Ministry of the Attorney General Act, R.S.O. 1980, c. 271.

Proceedings Against the Crown Act, R.S.O. 1980, c. 393, ss. 2(2)(d), 5(2) to (6).

Rules of Civil Procedure, O. Reg. 560/84, Rules 1.04(1), 20, 21.01.

Rules of Practice and Procedure, R.R.O. 1980, Reg. 540, Rules 124, 126.

Authors Cited

Béliveau, Pierre and Jacques Bellemare and Jean‑Pierre Lussier.  On Criminal Procedure. Translated by
Josef Muskatel. Cowansville: Éditions Yvon Blais Inc., 1982.

Edwards, John Ll. J.  The Attorney‑General, Politics and the Public Interest. London: Sweet & Maxell,
1984.

Filosa, John C. "Prosecutorial Immunity: No Place for Absolutes," [1983] U. Ill. L. Rev. 977.

Fleming, John G.  The Law of Torts, 5th ed. Sydney: Law Book Co., 1977.

Luppino, Anthony J. "Supplementing the Functional Test of Prosecutorial Immunity" (1982), 34 Stan. L.
Rev. 487.

Manning, Morris. "Abuse of Power by Crown Attorneys," [1979] L.S.U.C. Lectures 571.

Note, "Delimiting the Scope of Prosecutorial Immunity from Section 1983 Damage Suits" (1977), 52
N.Y.U. L. Rev. 173.

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Pilkington, Marilyn L. "Damages as a Remedy for Infringement of the Canadian Charter of Rights and
Freedoms" (1984), 62 Can. Bar. Rev. 517.

APPEAL from a judgment of the Ontario Court of Appeal (1985), 1985 CanLII 160 (ON CA), 51 O.R. (2d) 513,
21 D.L.R. (4th) 103, 16 C.R.R. 320, 1 C.P.C. (2d) 113, affirming an order of Fitzpatrick J. granting respondents'
application to strike out appellant's statement of claim and dismissing her action. Appeal dismissed as against the
Crown and appeal allowed as against the Attorney General, L'Heureux‑Dubé J. dissenting in part.

John Sopinka, Q.C., and David Brown, for the appellant.

T. C. Marshall, Q.C., and L. A. Hunter, for the respondents.

//Lamer J.//

The judgment of Dickson C.J. and Lamer and Wilson JJ. was delivered by

LAMER J. -- I have read the reasons for judgment of my colleague McIntyre J. and I agree with his disposition of
the appeal but I do so for somewhat different reasons. McIntyre J. in his reasons for judgment concludes that there
must be a trial to permit a conclusion on the question of prosecutorial immunity. I am in respectful disagreement
with him in this regard. I am of the opinion that the question of immunity should be addressed by this Court in this
case, and that nothing prevents the Court from so doing. I set out the relevant rules of the Ontario Rules of Practice
as they were at the time of the case for ease of reference:

124. Either party is entitled to raise by his pleadings any point of law, and by consent of the parties or by leave of
a judge, the point of law may be set down for hearing at any time before the trial, otherwise it shall be
disposed of at the trial.

126. A judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action
or answer, and in any such case, or in the case of the action or defence being shown to be frivolous or
vexatious, may order the action to be stayed or dismissed, or judgment to be entered accordingly.

As McIntyre J. points out the respondents moved to have the action dismissed under Rule 126 on the ground that
the pleadings disclosed no reasonable cause of action and, in the alternative, for leave under Rule 124 to set down a
point of law raised in the pleadings and to argue the same on the return of the motion. Both Fitzpatrick J. of the
Supreme Court of Ontario and the Court of Appeal for Ontario (1985), 1985 CanLII 160 (ON CA), 51 O.R. (2d)
513, in allowing the motion to strike out the statement of claim, seemed to have acted under Rule 126.

A review of the cases dealing with the application of Rule 124 and Rule 126 reveals the following. The difference
between the two rules lies in the summary nature of Rule 126 as opposed to the more detailed consideration of
issues under Rule 124. A court should strike a pleading under Rule 126 only in plain and obvious cases where the
pleading is bad beyond argument. Rule 124 is designed to provide a means of determining, without deciding the
issues of fact raised by the pleadings, a question of law that goes to the root of the action. I would like to point out
that what is at issue here is not whether malicious prosecution is a reasonable cause of action. A suit for malicious
prosecution has been recognized at common law for centuries dating back to the reign of Edward I. What is at issue
is whether the Crown, Attorney General and Crown Attorneys are absolutely immune from suit for the well-
established tort of malicious prosecution. This particular issue has been given careful consideration both by the
Court of Appeal and in argument before this Court. The Court of Appeal for Ontario undertook a thorough review
of authorities in the course of a lengthy discussion of arguments on both sides of the issue. As such it matters not in
my view whether the matter was disposed of under Rule 124 or 126. To send this matter back for trial without
resolving the issue of prosecutorial immunity would not be expeditious and would add both time and cost to an
already lengthy case.

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Furthermore I am of the view that the rules of civil procedure should not act as obstacles to a just and expeditious
resolution of a case. Rule 1.04(1) of the Rules of Civil Procedure in Ontario confirms this principle in stating that "
[t]hese rules shall be liberally construed to secure the just, most expeditious and least expensive determination of
every civil proceeding on its merits."

In terms of whether the Crown enjoys absolute immunity from a suit for malicious prosecution, McIntyre J.
concludes that s. 5(6) of the Proceedings Against the Crown Act, R.S.O. 1980, c. 393, exempts the Crown from any
proceedings in respect of anything done or omitted to be done by a person while discharging or purporting to
discharge responsibilities of a judicial nature or responsibilities that he has in connection with the execution of
judicial process. I am of the opinion that McIntyre J. was correct in holding that the Crown is rendered immune
from liability by the express terms of s. 5(6) of the Act, for the action by the Crown Attorney and the Attorney
General in deciding to prosecute the appellant. I would like to point out, however, that for the reasons set out below,
I am of the view that a functional approach to prosecutorial immunity at common law is inadequate. In this case the
applicable legislation requires the Court to draw a distinction between prosecutorial functions in so far as Crown
immunity under s. 5(6) is not available unless the function is "judicial" in nature. Therefore, although I agree with
McIntyre J. that in this case the decision to prosecute is a "judicial" function for the purposes of s. 5(6), I hasten to
add that in dealing with the policy considerations governing the availability of absolute immunity at common law
for the Attorney General and Crown Attorneys the functional approach is not the proper test. In addition it should
be noted that the constitutionality of the section was not an issue and was not addressed by counsel in this appeal.
As such this issue is not before this Court, and therefore the constitutionality of s. 5(6) of the Act is still an open
question.

Consequently, the remaining issue at hand is whether the Attorney General and his agents, the Crown Attorneys,
are absolutely immune from civil liability in a suit for malicious prosecution. In resolving this question, a brief
review of the situation prevailing in a few jurisdictions could be helpful and useful. While McIntyre J. in his
reasons provides a detailed review of the authorities, I would like to add some further observations.

I. Different Approaches to Immunity

The situation in Canada is unclear and does not seem to be uniform throughout the country.

1.  Absolute Immunity -- the Ontario Position

The Ontario Court of Appeal in the case at bar found that an absolute immunity exists, and in reaching this
conclusion relied extensively on the decision by the Supreme Court of the United States in Imbler v. Pachtman, 424
U.S. 409 (1976). The Court of Appeal found the idea of an absolute immunity "troubling" but determined that it
was justified by the following policy concerns. First, the rule encourages public trust in the fairness and impartiality
of those who act and exercise discretion in the bringing and conducting of criminal prosecution; the rule is designed
for the benefit of the public not the benefit of the individual prosecutor. Second, the threat of personal liability for
tortious conduct would have a chilling effect on the prosecutor's exercise of discretion and third, to permit civil suits
against prosecutors would invite a flood of litigation which would deflect a prosecutor's energies from the discharge
of his public duties. In short, the absence of an absolute immunity would open the door to unmeritorious claims and
would be a threat to prosecutorial independence. The Court also relied on two decisions of the Ontario High Court,
Owsley v. The Queen in right of Ontario (1983), 34 C.P.C. 96 and Richman v. McMurtry (1983), 1983 CanLII
1883 (ON SC), 41 O.R. (2d) 559. Both these decisions rely extensively on the American position as found in
Imbler, supra. The case law in Ontario therefore, uniformly stands for the proposition that the Attorney General and
Crown Attorneys enjoy absolute immunity from civil liability for malicious prosecution. Outside of Ontario, the
issue is somewhat more ambiguous.

2.  Elsewhere in Canada -- Absolute Immunity Questioned

In Levesque v. Picard (1985), 66 N.B.R. (2d) 87, the New Brunswick Court of Appeal held on the authority of the
Ontario cases, especially the case at bar, that an absolute immunity shielded a provincial Crown prosecutor from suit

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for malicious prosecution. By contrast the appellate courts of Nova Scotia and Alberta have cast some doubts on the
existence of an absolute immunity. First, in Curry v. Dargie (1984), 28 C.C.L.T. 93 (N.S.C.A.), the Crown was
sued as being vicariously liable for the action of a residential tenancy officer. Hart J.A. held that while the
Proceedings Against the Crown Act, R.S.N.S. 1967, c. 239, might absolve the provincial Crown from civil liability,
a Crown servant could still be personally liable for misconduct. In the course of his decision Hart J.A. considered
the Ontario decisions especially that of Galligan J. in Richman, supra (at p. 110):

I am not prepared to go as far as Galligan J. in holding that an officer of the Crown cannot be liable for a
proceeding commenced maliciously, but it is not necessary to consider that issue at the moment. I do
not believe that in the case at bar it can be said that the respondent in laying the information against the
appellant was in fact carrying out a judicial function similar to those carried out by Attorneys General
and prosecutors.

In German v. Major (1985), 1985 ABCA 176 (CanLII), 39 Alta. L.R. (2d) 270, a Crown prosecutor was sued for
alleged misconduct in the preferment of a charge of tax evasion, a charge on which the accused was acquitted.
Kerans J.A. speaking for the Alberta Court of Appeal assumes throughout that a suit for malicious prosecution is
possible and disposes of the case on the ground that there had been "reasonable and probable cause" to initiate the
prosecution. The case was dismissed pursuant to Rule 129 of the Alberta Rules of Civil Procedure, a rule similar to
the old Ontario Rule 126. In this context Kerans J.A. said the following (at p. 276):

The rule upon which I rely has much to commend it. It falls short of the absolute immunity suggested by Major
and accepted by the Supreme Court of the United States in Imbler v. Pachtman . . . but offers some
protection from the harassment which he says would otherwise afflict prosecuting counsel because suit
would not be permitted to proceed if utterly without merit. It would indeed be a curious thing if we
chose a stern immunity rule in preference to an effective striking-out rule.

Further support for the view that Kerans J.A. is not inclined to accept the existence of an absolute immunity for
prosecutors can be found in the following statements (at pp. 277 and 286):

I will assume, for the sake of argument, that, if counsel, with malice, continues a prosecution he once thought sound
but now knows is unsound, he may be sued.

...

Counsel for the Attorney General who acts as his agent in the prosecution of a criminal case is not accountable in
civil proceedings to the accused except possibly to the extent that it is alleged against him that he has
not acted in good faith, and to that extent the allegation falls within the nominative tort of malicious
prosecution . . . [Emphasis added.]

Therefore the Canadian position ranges from a strong assertion of absolute immunity in Ontario to an acceptance
of the possibility of suing the Attorney General and Crown Attorneys if bad faith or malice can be proven as
evidenced by the cases from Nova Scotia and Alberta. The situation in Quebec differs in that since 1966 the Code of
Civil Procedure, R.S.Q., c. C-25, specifically provides for claims against the Crown in the following terms:

94. Any person having a claim to exercise against the Crown, whether it be a revendication of moveable or
immoveable property, or a claim for the payment of moneys on an alleged contract, or for damages, or
otherwise, may exercise it in the same manner as if it were a claim against a person of full age and
capacity, subject only to the provisions of this chapter.

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No provisions in this chapter prevent a suit for malicious prosecution against the Crown. However, the
substantive issue of immunity of Crown prosecutors has not been finally determined.

3.  Immunity in the United States

A consideration of the position in respect of prosecutorial immunity in the United States is vital both because it is
relied extensively upon by the Court of Appeal in the case at bar, and because it has been the source of a healthy
debate in courts and among academics in that country. This position is furthermore interesting since a variety of
approaches have been proposed and many critical comments have been made.

i)The Functional Approach -- Imbler v. Pachtman: "The Powell Judgment"

In 1972 Paul Imbler filed a claim under 42 U.S.C. {SS} 1983 alleging that the prosecutor and various members of
the police force conspired to cause him loss of liberty by allowing a witness to give false testimony, suppressing
evidence, prosecuting with knowledge of an exculpatory lie-detector test and introducing an altered police artist's
sketch. Section 1983 of the Civil Rights Act creates a federal damage action against anyone who acts under colour
of state law to deprive a person of his civil rights as protected by the U.S. Constitution. Powell J., speaking for five
members of the Supreme Court, held that a prosecutor is absolutely immune from s. 1983 actions when the actions
arise out of the prosecutor's initiation of prosecution and presentation of the State's case. In addition, the Court
seemed to suggest that absolute immunity also attached to activities that "were intimately associated with the
judicial phase of the criminal process" (p. 430). The Court then adopted what has become known as the "functional
approach" of prosecutorial immunity.

The Imbler decision recognizes that prosecutors perform many functions in the course of fulfilling their duties,
among them being the decision to initiate a prosecution, which witnesses to call, what other evidence to present, and
obtaining, reviewing and evaluating evidence. The Court accepts that drawing a line between these functions is a
difficult task but concludes that prosecutorial functions of a quasi-judicial or advocatory nature should be afforded
absolute immunity. The Court refused to comment on whether a similar immunity attaches to what it called the
"administrative" or "investigative" role of the prosecutor. In the course of justifying its position, the Court noted
that the same policy considerations that afford absolute immunity to judges acting within the scope of their duties
support a prosecutor's common law absolute immunity. The Court simply extended that line of reasoning to s. 1983
claims.

The policy considerations canvassed by the Court are familiar ones and can be summarized as follows:

1. Public Confidence

"The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the
consequences in terms of his own potential liability in a suit for damages."

2. Diversion from Duties

" . . . if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his
energy and attention would be diverted from the pressing duty of enforcing the criminal law."

3. Balancing of Evils

" . . . we find ourselves in agreement with Judge Learned Hand, who wrote of the prosecutor's immunity from
actions for malicious prosecution:

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" . . . it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject
those who try to do their duty to the constant dread of retaliation."  Gregoire v. Biddle, 177 F.
(2d) 579, 581 (CA2 1949) cert. denied, 339 U.S. 949 (1950)."

4. Other Available Remedies

"Even judges . . . could be punished criminally for willful deprivations of constitutional rights. . . The prosecutor
would fare no better for his willful acts. . . Moreover, a prosecutor stands perhaps unique, among
officials whose acts could deprive persons of constitutional rights, in his amenability to professional
discipline by an association of his peers."

(Imbler, supra, at pp. 424-29)

Therefore, Powell J. affirmed the judgment of the Court of Appeal for the Ninth Circuit and held that a prosecutor
is absolutely immune from suit in initiating a prosecution and in presenting the State's case.

ii)The Functional Approach -- Imbler v. Pachtman: "The White Judgment"

While concurring with the judgment of Powell J. and much of his reasoning, White J. (Brennan and Marshall JJ.
joining) would carve out an exception to the rule of absolute immunity for the unconstitutional suppression of
evidence. In doing so White J. examined the rationale for granting absolute immunity to prosecutors at common
law (at p. 442):

The absolute immunity . . . is designed to encourage [the prosecutors] to bring information to the court which will
resolve the criminal case. . . . Lest they withhold valuable but questionable evidence or refrain from
making valuable but questionable arguments, prosecutors are protected from liability for submitting
before the court information later determined to have been false to their knowledge.

According to White J. immunity from suit based on the unconstitutional suppression of evidence would "stand this
immunity rule on its head" (p. 442) by discouraging precisely the disclosure of evidence sought to be encouraged by
the rule (at p. 443):

A prosecutor seeking to protect himself from liability for failure to disclose evidence may be induced to disclose
more than is required. But this will hardly injure the judicial process. Indeed, it will help it.
Accordingly, lower courts have held that unconstitutional suppression of exculpatory evidence is
beyond the scope of "duties constituting an integral part of the judicial process" and have refused to
extend absolute immunity to suits based on such claims.  Hilliard v. Williams, 465 F. 2d 1212, 1218
(CA6), cert. denied, 409 U.S. 1029 (1972) . . . .

White J.'s position then would limit the scope of absolute immunity but would not eliminate the theoretical
underpinning of the Powell majority judgment, namely the functional approach to absolute immunity.

The functional approach has been criticized on a number of grounds. First, there is the ever present problem of
line-drawing between functions that are quasi-judicial and those that are administrative or investigative. Drawing
the line is made more difficult by multi-faceted functions, functions that simultaneously serve quasi-judicial,
administrative and investigative functions. (See Anthony Luppino, "Supplementing the Functional Test of
Prosecutorial Immunity" (1982), 34 Stan. L. Rev. 487, at pp. 493-94.) Aside from the problem of distinguishing
between prosecutorial functions, there is the conceptual difficulty in justifying differential treatment of malicious
acts based on the criterion of function. If a prosecutor acts maliciously in the course of the prosecution of an
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accused, does it really matter whether the function being carried out is characterized as "quasi-judicial" or
"administrative"?

An example of the difficulty with the functional approach is the disagreement in the lower courts in the United
States over whether quasi-judicial absolute immunity extends to investigative functions of a prosecutor. In addition,
and in light of the White concurring judgment in Imbler, there is disagreement over whether leaks of information
and destruction or alteration of evidence are acts that are protected by absolute immunity: see cases cited by J. C.
Filosa, "Prosecutorial Immunity: No Place for Absolutes," [1983] U. Ill. L. Rev. 977, at pp. 985-86. In my view,
these disagreements demonstrate the futility of attempting to differentiate between functions of a prosecutor in a
principled way. The result is often arbitrary line-drawing which leads to seemingly unresolvable conflict and the
diversion of attention from the central issue, namely whether or not a prosecutor has acted maliciously.

Second, it has been argued that the policy rationales supporting absolute immunity for prosecutors, derived as they
are from judicial immunity, rely on an inaccurate reading of history. Filosa in his article challenges the derivation of
the prosecutor's quasi-judicial immunity from s. 1983 claims from the absolute immunity of judges at common law
(at pp. 980-81):

In the sixteenth century, English judges were typically liable for their torts. Throughout the nineteenth century,
judges remained liable for malicious conduct done without reasonable and probable cause. In America
before Bradley v. Fisher [80 U.S. (13 Wall.) 335 (1872)], courts held many judicial officers liable for
their wrongful acts. . . . Of the thirty-seven states in existence in 1871, thirteen had judicial immunity,
six states held judges liable for malicious actions, nine had not taken a clear position, and nine had not
faced the question.

Filosa goes on to argue that Congress could not have meant to incorporate a doctrine of absolute immunity into s.
1983 because Bradley, which firmly entrenched judicial immunity in the common law, was not decided until 1872,
one year after the Civil Rights Act of 1871 that contained s. 1983.

4.  Alternatives to Imbler

i) The Functional Approach Reapproached

The difficulties in applying the functional test have led American courts and academic commentators to suggest
alternatives or reassessments of the test. One such attempt has been described by its proponent as the "functional
approach reapproached". (See Note, "Delimiting the Scope of Prosecutorial Immunity from Section 1983 Damage
Suits" (1977), 52 N.Y.U. L. Rev. 173, at pp. 190-91.) This approach seeks to avoid a judicial hearing to determine
whether a prosecutor's action is quasi-judicial. As such the test states that "the only duties clearly not entitled to
quasi-judicial immunity are those so divorced from the judicial process that they could readily be assigned to
another official who could be completely independent of the prosecutor" (see Note, loc. cit., at p. 191). This
approach seeks to grant to the prosecutor absolute immunity in a wider sphere of activities in the hopes of clarifying
the distinction between quasi-judicial and investigative activities. In my view, this modification still has the
drawback of requiring a line to be drawn between prosecutorial functions, a difficult task in itself. The
modification, in seeking to make that task easier, errs on the side of including more activities within the realm of
absolute prosecutorial immunity, a modification that, with respect, offers an immunity considerably wider than that
given to judges from which prosecutorial immunity is allegedly derived.

ii) General Features Test: Wilkinson v. Ellis

In Wilkinson v. Ellis, 484 F. Supp. 1072 (E.D. Pa. 1980), the plaintiff alleged that a prosecutor destroyed a tape
recorded interview with a man who admitted involvement in the alleged criminal activity, thereby exonerating the
plaintiff. The prosecutor moved to dismiss the action, arguing that the destruction of evidence is a quasi-judicial act
shielded by absolute immunity. The Wilkinson court refused to characterize the destruction as either investigative

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or quasi-judicial. Rather, it resolved the difficulty of classifying activities by asking whether the activity contained
features "which generally characterize quasi-judicial activity" (p. 1083). In deciding that the destruction did not
have the "general features" of quasi-judicial activity, the court identified three factors to be taken into account: (1)
the activity's physical and temporal proximity to the judicial process; (2) the degree of dependence upon legal
opinions and prosecutorial discretion involved in the conduct; and (3) whether the activity is primarily advocatory
(p. 1080). This approach in my view, does little to get away from the inherent problems involved in categorizing
prosecutorial actions.

iii) The Imbler "Umbrella"

This variation of the functional approach involves limiting the scope of the prosecutor's quasi-judicial function to
conduct that falls within the narrowest confines of the Imbler test: in other words within the "umbrella" of coverage
defined by the language of Imbler. Acts that are under the "umbrella" attract absolute immunity; all others receive
at most qualified immunity. (See Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir. 1980), cert. denied, 450 U.S.
913 (1981).) This approach merely re-states the categorization problem found in Imbler. The test requires a
determination of what constitutes the coverage of the so-called "Imbler umbrella" and thereby takes us back to the
original problem of line-drawing.

iv) The Harm Test

This variation of Imbler construes that decision broadly by granting absolute immunity to prosecutorial conduct
that causes a defendant to "face prosecution, or to suffer imprisonment or pretrial detention". (See Taylor v.
Kavanagh, 640 F.2d 450 (2d Cir. 1981), at p. 453.) The test denies absolute immunity to prosecutorial conduct that
inflicts harm independent of the prosecution itself. This approach looks to the effects of prosecutorial conduct and
as such purports to reduce the issue to a factual determination of harms. If the harm is unrelated to the judicial
phase of the criminal justice process then the prosecutorial act causing the harm is not quasi-judicial.

v) The Supplemental Functional Approach

This approach involves a two-step process: first, determining what conduct normally merits absolute or qualified
immunity and second, in the remaining cases, identifying the substantive values affected by conduct that is not
susceptible to traditional categorization. (See Luppino, loc. cit., at p. 505.) This variation recognizes that there will
be occasions when conduct does not clearly fall into one of the two traditional categories: quasi-judicial and non-
quasi-judicial. When conduct does not fall into either category explicit balancing of competing interests becomes
necessary. In this respect, courts should weigh the cost to the judicial system resulting from the unredressed civil
wrong against the cost to the efficiency of the criminal justice system. This approach recognizes that the Imbler
functional approach cannot account for all prosecutorial functions; there will be some conduct that is multi-faceted
and uncategorizable. As a result the approach resorts to a consideration of first principles, namely a balancing of the
policy considerations both in favour and opposed to prosecutorial immunity in the first place. In short, we have
come full circle.

The American position, in any of its forms, demonstrates the impracticality of the functional approach to
prosecutorial immunity. In my view, the functional approach leads to arbitrary line drawing between prosecutorial
functions. This line drawing exercise is made nearly impossible by the reality that many prosecutorial functions are
multi-faceted and cannot be neatly categorized. Further, it must be noted that however one categorizes a
prosecutor's function it is still that of the prosecutor. If it can be demonstrated that a prosecutor has acted without
reasonable cause and has acted with malice then does it really matter which functions he was carrying out? In my
view to decide the scope of immunity on the basis of categorization of functions is an unprincipled approach that
obscures the central issue, namely whether the prosecutor has acted maliciously. If immunity is to be qualified it
should be done in a manner other than by the drawing of lines between quasi-judicial and other prosecutorial
functions.

5.  The English Position

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The position in respect of prosecutorial immunity in England is somewhat unique in that jurisdiction owing in part
to the tradition of private prosecution. Private prosecutors have always been liable to suit for malicious prosecution
though few, if any, reported cases exist. The Director of Public Prosecutions, who performs the same or similar
function as a Canadian provincial Attorney General, was not created until 1879. In Riches v. Director of Public
Prosecutions, [1973] 2 All E.R. 935 (C.A.), the Court said the following in respect of suits against the D.P.P. (at p.
941):

I do not wish to be taken as saying that there may never be a case where a prosecution has been initiated and
pursued by the Director of Public Prosecutions in which it would be impossible for an acquitted
defendant to succeed in an action for malicious prosecution, or as saying, that the existence of the
Attorney General's fiat where required conclusively negates the existence of malice and conclusively
proves that there was reasonable and probable cause for the prosecution. There may be cases where
there has been, by even a responsible authority, the suppression of evidence which has led to a false
view being taken by those who carried on a prosecution and by those who ultimately convicted.

The English position then, at the very least, leaves the door open for suits against the equivalent of our Attorneys
General and Crown Attorneys when what is at issue is the suppression of evidence. It is apposite to note that this
position is reflective of White J.'s concurring opinion in Imbler, supra, wherein he carved out an exception to the
rule of absolute immunity for the unconstitutional suppression of evidence.

6.  Scotland

It would appear that in Scotland the equivalent of our Attorney General and Crown Attorneys are absolutely
immune from civil liability. In Hester v. MacDonald, [1961] S.C. 370, the court said at p. 377:

It is, therefore, an essential element in the very structure of our criminal administration in Scotland that the Lord
Advocate is protected by an absolute privilege in respect of matters in connexion with proceedings
brought before a Scottish Criminal Court by way of indictment . . . . Never in our history has a Lord
Advocate been sued for damages in connexion with such proceedings. On the contrary, our Courts
have consistently affirmed the existence of such immunity on his part.

The rationale underlying this comment has been disputed by Professor Edwards in The Attorney General, Politics
and the Public Interest (1984) in which he argues that the Scottish rationale is based upon the idea that the Lord
Advocate and his agents enjoy a constitutional trust which assumes good faith in commencing a prosecution, a
rationale far removed from that invoked by the Ontario courts.

7.  Australia and New Zealand

The position in respect of prosecutorial immunity in Australia and New Zealand is not clear. As far as I can
determine, there does not seem to be any reported case on the issue.

Although the situation prevailing in European civil law jurisdictions is interesting, its application to the case at bar
is of limited usefulness because of the wide differences between the civil law system and our common law tradition.

II. The Preferred Canadian Position

1. The Role of the Attorney General and Crown Attorney

Historically the Attorney General's role was that of legal adviser to the Crown and to the various departments of
government. More specifically the principal function was and still is the prosecution of offenders. The appointment

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of Crown Attorneys as agents of the Attorney General, arose from the increasing difficulty of the Attorney General
to attend effectively to all of his duties amid increases in population, and the expansion of settlement.

The office of the Crown Attorney has as its main function the prosecution of and supervision over indictable and
summary conviction offences. The Crown Attorney is to administer justice at a local level and in so doing acts as
agent for the Attorney General. Traditionally the Crown Attorney has been described as a "minister of justice" and
"ought to regard himself as part of the Court rather than as an advocate". (Morris Manning, "Abuse of Power by
Crown Attorneys," [1979] L.S.U.C. Lectures 571, at p. 580, quoting Henry Bull, Q.C.) As regards the proper role
of the Crown Attorney, perhaps no more often quoted statement is that of Rand J. in Boucher v. The Queen, 1954
CanLII 3 (SCC), [1955] S.C.R. 16, at p. 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay
before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a
crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be
done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor
excludes any notion of winning or losing; his function is a matter of public duty than which in civil life
there can be none charged with greater personal responsibility. It is to be efficiently performed with an
ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

Among the many powers of a prosecutor are the following: the power to detain in custody, the power to prosecute,
the power to negotiate a plea, the power to charge multiple offences, the power of disclosure/non-disclosure of
evidence before trial, the power to prefer an indictment, the power to proceed summarily or by indictment, the
power to withdraw charges, and the power to appeal. (For a fuller description of the genesis and operation of these
powers see Manning, op. cit., at pp. 586-608, and P. Béliveau, J. Bellemare and J.-P. Lussier, On Criminal
Procedure (1982), at pp. 69-83.)

With this background in mind, it is now necessary to turn to a consideration of the tort at issue, malicious
prosecution, and the policy rationales in favour of an absolute immunity for the Attorney General and Crown
Attorneys in respect of that tort.

2.  The Tort of Malicious Prosecution

There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious
prosecution:

a)the proceedings must have been initiated by the defendant;

b)the proceedings must have terminated in favour of the plaintiff;

c)the absence of reasonable and probable cause;

d)malice, or a primary purpose other than that of carrying the law into effect.

(See J. G. Fleming, The Law  of  Torts (5th ed. 1977), at p. 598.)

The first two elements are straightforward and largely speak for themselves. The latter two elements require
explicit discussion. Reasonable and probable cause has been defined as "an honest belief in the guilt of the accused
based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which,
assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of
the accuser, to the conclusion that the person charged was probably guilty of the crime imputed" (Hicks v. Faulkner
(1878), 8 Q.B.D. 167, at p. 171, Hawkins J.)

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This test contains both a subjective and objective element. There must be both actual belief on the part of the
prosecutor and that belief must be reasonable in the circumstances. The existence of reasonable and probable cause
is a matter for the judge to decide as opposed to the jury.

The required element of malice is for all intents, the equivalent of "improper purpose". It has according to
Fleming, a "wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose,
such as to gain a private collateral advantage" (Fleming, op. cit., at p. 609). To succeed in an action for malicious
prosecution against the Attorney General or Crown Attorney, the plaintiff would have to prove both the absence of
reasonable and probable cause in commencing the prosecution, and malice in the form of a deliberate and improper
use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of "minister of
justice". In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown
Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and
the process of criminal justice. In fact, in some cases this would seem to amount to criminal conduct. (See for
example breach of trust, s. 122, conspiracy re: false prosecution s. 465(1)(b), obstructing justice s. 139(2) and (3) of
the Criminal Code, R.S.C., 1985, c. C-46.)

Further, it should be noted that in many, if not all cases of malicious prosecution by an Attorney General or Crown
Attorney, there will have been an infringement of an accused's rights as guaranteed by ss. 7 and 11 of the Canadian
Charter of Rights and Freedoms.

By way of summary then, a plaintiff bringing a claim for malicious prosecution has no easy task. Not only does
the plaintiff have the notoriously difficult task of establishing a negative, that is the absence of reasonable and
probable cause, but he is held to a very high standard of proof to avoid a non-suit or directed verdict (see Fleming,
op. cit., at p. 606, and Mitchell v. John Heine and Son Ltd. (1938), 38 S.R. (N.S.W.) 466, at pp. 469-71). Professor
Fleming has gone so far as to conclude that there are built-in devices particular to the tort of malicious prosecution
to dissuade civil suits (at p. 606):

The disfavour with which the law has traditionally viewed the action for malicious prosecution is most clearly
revealed by the hedging devices with which it has been surrounded in order to deter this kind of
litigation and protect private citizens who discharge their public duty of prosecuting those
reasonably suspected of crime.

3.  Policy Considerations

In light of what I have said regarding the role of the prosecutor in Canada, and the tort of malicious prosecution, it
now is necessary to assess the policy rationales. I would begin by noting that even those decisions that have come
out firmly in favour of absolute immunity have described the rule as "troubling", a "startling proposition", "strained
and difficult to sustain" (see Nelles v. The Queen in right of Ontario (1985), 1985 CanLII 160 (ON CA), 51 O.R.
(2d) 513 (Ont. C.A.), at p. 531, and Bosada v. Pinos (1984), 1984 CanLII 2096 (ON SC), 44 O.R. (2d) 789 (H.C.),
at p. 794).

It is said by those in favour of absolute immunity that the rule encourages public trust and confidence in the
impartiality of prosecutors. However, it seems to me that public confidence in the office of a public prosecutor
suffers greatly when the person who is in a position of knowledge in respect of the constitutional and legal impact of
his conduct is shielded from civil liability when he abuses the process through a malicious prosecution. The
existence of an absolute immunity strikes at the very principle of equality under the law and is especially alarming
when the wrong has been committed by a person who should be held to the highest standards of conduct in
exercising a public trust. (See Filosa, op. cit., at p. 982, and Marilyn L. Pilkington, "Damages as a Remedy for
Infringement of the Canadian Charter of Rights and Freedoms" (1984), 62 Can. Bar. Rev. 517, at pp. 560-61.)

Regard must also be had for the victim of the malicious prosecution. The fundamental flaw with an absolute
immunity for prosecutors is that the wrongdoer cannot be held accountable by the victim through the legal process.

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As I have stated earlier, the plaintiff in a malicious prosecution suit bears a formidable burden of proof and in those
cases where a case can be made out, the plaintiff's Charter rights may have been infringed as well. Granting an
absolute immunity to prosecutors is akin to granting a license to subvert individual rights. Not only does absolute
immunity negate a private right of action, but in addition, it seems to me, it may be that it would effectively bar the
seeking of a remedy pursuant to s. 24(1) of the Charter. It seems clear that in using his office to maliciously
prosecute an accused, the prosecutor would be depriving an individual of the right to liberty and security of the
person in a manner that does not accord with the principles of fundamental justice. Such an individual would
normally have the right under s. 24(1) of the Charter to apply to a court of competent jurisdiction to obtain a remedy
that the court considers appropriate and just if he can establish that one of his Charter rights has been infringed. The
question arises then, whether s. 24(1) of the Charter confers a right to an individual to seek a remedy from a
competent court. In my view it does. When a person can demonstrate that one of his Charter rights has been
infringed, access to a court of competent jurisdiction to seek a remedy is essential for the vindication of a
constitutional wrong. To create a right without a remedy is antithetical to one of the purposes of the Charter which
surely is to allow courts to fashion remedies when constitutional infringements occur. Whether or not a common
law or statutory rule can constitutionally have the effect of excluding the courts from granting the just and
appropriate remedy, their most meaningful function under the Charter, does not have to be decided in this appeal. It
is, in any case, clear that such a result is undesirable and provides a compelling underlying reason for finding that
the common law itself does not mandate absolute immunity.

It is also said in favour of absolute immunity that anything less would act as a "chilling effect" on the Crown
Attorney's exercise of discretion. It should be noted that what is at issue here is not the exercise of a prosecutor's
discretion within the proper sphere of prosecutorial activity as defined by his role as a "minister of justice". Rather,
in cases of malicious prosecution we are dealing with allegations of misuse and abuse of the criminal process and of
the office of the Crown Attorney. We are not dealing with merely second-guessing a Crown Attorney's judgment in
the prosecution of a case but rather with the deliberate and malicious use of the office for ends that are improper and
inconsistent with the traditional prosecutorial function.

Therefore it seems to me that the "chilling effect" argument is largely speculative and assumes that many suits for
malicious prosecution will arise from disgruntled persons who have been prosecuted but not convicted of an
offence. I am of the view that this "flood-gates" argument ignores the fact that one element of the tort of malicious
prosecution requires a demonstration of improper motive or purpose; errors in the exercise of discretion and
judgment are not actionable. Furthermore, there exist built-in deterrents on bringing a claim for malicious
prosecution. As I have noted, the burden on the plaintiff is onerous and strict. The fact that the absence of
reasonable cause is a matter of law to be decided by a judge means that an action for malicious prosecution can be
struck before trial as a matter of substantive inadequacy (see Rule 21.01 of the Ontario Rules of Civil Procedure for
example). In fact this was the approach adopted by Kerans J.A. in German v. Major, supra. I agree with Kerans
J.A. that "[i]t would indeed be a curious thing if we chose a stern immunity rule in preference to an effective
striking-out rule" (p. 276). In addition most jurisdictions, including Ontario, have provisions that allow a defendant
to move for summary judgment before a full-fledged trial takes place (see for example Rule 20 in Ontario). Finally,
the potential that costs will be awarded to the defendant if an unmeritorious claim is brought acts as financial
deterrent to meritless claims. Therefore, ample mechanisms exist within the system to ensure that frivolous claims
are not brought. In fact, the difficulty in proving a claim for malicious prosecution itself acts as a deterrent. This
high threshold of liability is evidenced by the small number of malicious prosecution suits brought against police
officers each year. In addition, since 1966, the province of Quebec permits suits against the Attorney General and
Crown prosecutors without any evidence of a flood of claims. Therefore, I find unpersuasive the claim that absolute
immunity is necessary to prevent a flood of litigation.

As for alternative remedies available to persons who have been maliciously prosecuted, none seem to adequately
redress the wrong done to the plaintiff. The use of the criminal process against a prosecutor who in the course of a
malicious prosecution has committed an offence under the Criminal Code, addresses itself mainly to the vindication
of a public wrong not the affirmation of a private right of action. Of special interest in this regard is s. 737 of the
Criminal Code which deals with the making of a probation order. Section 737(2) stipulates that certain conditions
may be prescribed in a probation order, one of them being that the convicted person "make restitution or reparation

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to any person aggrieved or injured by the commission of the offence for the actual loss or damage sustained by that
person as a result thereof" (s. 737(2)(e)). This section would seem to be an indirect method of at least partially
remedying a wrong done to an individual as a result of a malicious prosecution. However the section is only
operative when an accused has been convicted of an offence and when a probation order is made. In addition, the
Court's power to award compensation to a victim is limited to damages that are relatively concrete and
ascertainable. (See R. v. Groves (1977), 1977 CanLII 1045 (ON SC), 37 C.C.C. (2d) 429 (Ont. H.C.)) As such it
would seem a rather inadequate substitute for a private right of action. I do however pause to note that many cases
of genuine malicious prosecution will also be offences under the Criminal Code, and it seems rather odd if not
incongruous for reparation to be possible through a probation order but not through a private right of action.

Further, the use of professional disciplinary proceedings, while serving to some extent as punishment and
deterrence, do not address the central issue of making the victim whole again. And as has already been noted, it is
quite discomforting to realize that the existence of absolute immunity may bar a person whose Charter rights have
been infringed from applying to a competent court for a just and appropriate remedy in the form of damages.

III. Conclusion

A review of the authorities on the issue of prosecutorial immunity reveals that the matter ultimately boils down to
a question of policy. For the reasons I have stated above I am of the view that absolute immunity for the Attorney
General and his agents, the Crown Attorneys, is not justified in the interests of public policy. We must be mindful
that an absolute immunity has the effect of negating a private right of action and in some cases may bar a remedy
under the Charter. As such, the existence of absolute immunity is a threat to the individual rights of citizens who
have been wrongly and maliciously prosecuted. Further, it is important to note that what we are dealing with here is
an immunity from suit for malicious prosecution; we are not dealing with errors in judgment or discretion or even
professional negligence. By contrast the tort of malicious prosecution requires proof of an improper purpose or
motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed
to serve and as such incorporates an abuse of the office of the Attorney General and his agents the Crown Attorneys.

There is no doubt that the policy considerations in favour of absolute immunity have some merit. But in my view
those considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts
maliciously in fraud of his duties with the result that he causes damage to the victim. In my view the inherent
difficulty in proving a case of malicious prosecution combined with the mechanisms available within the system of
civil procedure to weed out meritless claims is sufficient to ensure that the Attorney General and Crown Attorneys
will not be hindered in the proper execution of their important public duties. Attempts to qualify prosecutorial
immunity in the United States by the so-called functional approach and its many variations have proven to be
unsuccessful and unprincipled as I have previously noted. As a result I conclude that the Attorney General and
Crown Attorneys do not enjoy an absolute immunity in respect of suits for malicious prosecution. I would therefore
dismiss the appeal as against the Crown, there being no order as to costs. I would allow the appeal as against the
Attorney General with costs and direct that the matter be returned to the Supreme Court of Ontario for trial of the
claim against the Attorney General.

//McIntyre J.//

The following are the reasons delivered by

MCINTYRE J. -- This appeal concerns the question of the liability of the Crown and the Attorney General of the
province in a suit for malicious prosecution arising out of the institution of criminal proceedings, charges of murder,
brought against the appellant.

In March, 1981, the appellant, then a nurse at the Toronto Hospital for Sick Children, was charged with the murder
of four infant patients. At the conclusion of her preliminary hearing, the Provincial Court Judge who conducted the
proceedings discharged the appellant upon a finding of an absence of evidence: (1982), 1982 CanLII 3803 (ON
CJ), 16 C.C.C. (3d) 97. The appellant later commenced an action against the Crown in right of Ontario, the

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Attorney General for Ontario, and several police officers, alleging that the Attorney General and his agents, the
Crown Attorneys, counselled, aided and abetted the police in charging and prosecuting the plaintiff, and that in so
doing the Attorney General, the Crown Attorneys, and police were acting as agents for the Crown in right of
Ontario. It was also alleged that in the prosecution the Attorney General and the Crown Attorneys were actuated by
malice while acting as agents for the Crown. Proceedings were later discontinued against the police officers and the
Crown Attorneys were not named as defendants. The Crown and the Attorney General remained the only
defendants and are the respondents in this Court.

Before trial, the respondents moved to have the action dismissed under Rule 126 of the Ontario Rules of Practice,
on the ground that the pleadings disclosed no reasonable cause of action and, in the alternative, for leave under Rule
124 to set down a point of law raised in the pleadings and to argue the same on the return of the motion. Rule 124
and Rule 126 are set out hereunder:

124. Either party is entitled to raise by his pleadings any point of law, and by consent of the parties or by leave of a
judge, the point of law may be set down for hearing at any time before the trial, otherwise it shall be
disposed of at the trial.

126. A judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action
or answer, and in any such case, or in case of the action or defence being shown to be frivolous or
vexatious, may order the action to be stayed or dismissed, or judgment to be entered accordingly.

The question of law for which leave was sought was in these terms:

A defendant in a preliminary inquiry held under the provisions of the Criminal Code of Canada and discharged
thereof has no cause of action based in malicious prosecution or negligence against the Crown
Attorneys conducting such proceedings or as against those in law responsible for their conduct.

Fitzpatrick J., of the Supreme Court of Ontario, allowed the motion and struck out the statement of claim. In
doing so, he seems to have acted under Rule 126. He concluded on the basis of two decisions of the Supreme Court
of Ontario (Owsley v. The Queen in right of Ontario (1983), 34 C.P.C. 96 (Ont. H.C.), and Richman v. McMurtry
(1983), 1983 CanLII 1883 (ON SC), 41 O.R. (2d) 559 (Ont. H.C.)), that the Attorney General for Ontario has an
absolute immunity from civil action while performing his duties as a public prosecutor, even if he acted
maliciously. He concluded that the immunity had not been removed by the Canadian Charter of Rights and
Freedoms and allowed the motion and struck out the statement of claim.

An appeal was dismissed in the Ontario Court of Appeal: (1985), 1985 CanLII 160 (ON CA), 51 O.R. (2d) 513.
At the outset, Thorson J.A., speaking for the Court (Houlden, Thorson and Robins JJ.A.) said, at pp. 514-15:

This Court reserved its judgment on the appeal following lengthy argument on whether, as a matter of law, any
action can be asserted against the Crown or the Attorney-General, or both, in the circumstances which
are found to be present in this case. My conclusion is that as a matter of law it cannot, and that the
plaintiff's appeal must therefore be dismissed. The reasons for this conclusion follow.

From the foregoing, it may be somewhat doubtful whether the Court of Appeal acted under Rule 124 or 126. The
record, however, does not disclose any consent by the parties or any grant of leave for the hearing of the point of law
under Rule 124. Furthermore, in answer to arguments raised in the Court of Appeal in this form, at p. 518:

At the outset of his submissions counsel for the appellant, Mr. Sopinka, contended that on an application to a
judge under Rule 126 of the Rules of Practice, the judge hearing the application ought not to strike out
a plaintiff's statement of claim unless he was persuaded that the claim could have no hope of
succeeding, even if the facts alleged in the statement of claim were proved. In considering such an
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application, the facts must be taken to be as they are alleged in the statement of claim. Moreover,
where the statement of claim raises a "substantial issue of law" it ought not to be struck out under Rule
126, and where an allegation is made that an executive of ministerial act has been performed in bad
faith or for an improper purpose, that issue should not be dealt with on a summary application under
Rule 126 but should be left to be determined by the judge at trial. Similarly, where an issue arises as to
whether any conduct is unconstitutional, it is important to have the kind of factual underpinning which
is needed to determine that issue and which can only be brought out at a trial in the ordinary course.

Thorson J.A. said, at pp. 518-19:

With respect I cannot agree that Fitzpatrick J. erred in dealing with this application as one properly brought under
Rule 126, albeit that the power conferred on a judge under that rule is one that ought to be used
"sparingly", as noted by Dupont J. in Owsley v. The Queen in right of Ontario (1983), 34 C.P.C. 96 at
p. 102. Nor can I agree with the assertion that merely because the statement of claim raises a
"substantial issue of law" it ought not to be dealt with on an application under that rule. If the latter
assertion were correct, it seems to me that the purpose of the rule would be largely defeated. That
purpose, surely, is to make it possible for a person who has been named in an action to avoid having to
go to the considerable trouble and expense of defending himself in court against a claim made in that
action which has no reasonable expectation of succeeding against him, even if all the facts alleged are
proved. If, in this case, the learned motions court judge had concluded that the Attorney-General, and
thus by extension the Crown, did not enjoy an absolute immunity in law, it might well have been
improper to decide the issue before him on an application under Rule 126 since in that event, and for
the reasons explained by Linden J. in King v. Liquor Control Board of Ontario (1981), 1981 CanLII
1706 (ON SC), 33 O.R. (2d) 816 at p. 825, ... a "factual underpinning" for the claim would then have
been necessary for its disposition, but where, as here, he concluded that the immunity was absolute, the
same kind of factual underpinning was not needed, for even if the facts as alleged were proved the
claim could not succeed. Accordingly, I find no error on the part of Fitzpatrick J. in acting on the
application as one which could be properly considered and dealt with by him under Rule 126....

Therefore, I will proceed on the basis that the Court of Appeal reached its determination by the application of Rule
126. In so doing, the court concluded that there existed an absolute immunity for the Crown and the Attorney
General and the Crown Attorneys against suit for all acts done in relation to criminal proceedings, even though
malice be shown. If this Court should hold that the immunity asserted for the Crown and the Attorney General is
clearly absolute, the action would be at an end. If, however, it should conclude that the immunity is in any way
limited or qualified or that its existence is doubtful, the matter would have to go to trial in the usual way, so that
evidence could be heard on the matters of fact and the issues raised in order to provide a factual underpinning for the
determination of any possible liability. In approaching the matter at this stage, it must be borne in mind that in
proceedings under Rule 126 the facts alleged must be taken as true and this motion must be disposed of on the basis
that the Crown Attorneys and the Attorney General acted with malice in the initiation and conduct of these
proceedings.

There are four necessary elements which must be proved for success in an action for malicious prosecution:

A.The proceedings must have been initiated by the defendant.

B.The proceedings must have terminated in favour of the plaintiff.

C.The plaintiff must show that the proceedings were instituted without reasonable cause, and

D.The defendant was actuated by malice.

This appeal must therefore be approached on the footing that all these elements are shown.
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It was argued on behalf of the Crown that it enjoyed a complete immunity from liability for malicious prosecution,
on the basis of a common law immunity of the Attorney General and the Crown Attorneys. Any liability on the part
of the Crown arising from the conduct of its servants would be vicarious. Therefore, it was contended that because
the common law accorded a full immunity to the Crown's servants, the Crown itself would not be liable. It was also
contended that the Crown had an absolute immunity under the provisions of the Proceedings Against the Crown
Act, R.S.O. 1980, c. 393 (the Act).

Any consideration of Crown liability must now be based upon the Act and I do not find it necessary for the
purposes of this case to consider the common law position respecting Crown immunity. The purpose of the Act,
clearly discernible from its form and structure, was to remove Crown immunities and place the Crown upon the
same footing as any other person before the courts, save for the exceptions which are set out in the Act. The
effective sections for this purpose are ss. 2 and 5. Section 2(2)(d) was relied upon by the Crown. It provides:

2. ...

(2) Nothing in this Act

...

(d)subjects the Crown to proceedings under this Act in respect of anything done in the due enforcement of the
criminal law or of the penal provisions of any Act of the Legislature;

It may be argued that commencing and conducting proceedings with malice against the object of the proceedings
could not be considered as the "due" enforcement of the criminal law. But any opening in the wall of immunity
found by the Court of Appeal would be, in my view, effectively closed by s. 5(6) of the Act, which provides:

5. ...

(6) No proceedings lie against the Crown under this section in respect of anything done or omitted to be done by a
person while discharging or purporting to discharge responsibilities of a judicial nature vested in him or
responsibilities that he has in connection with the execution of judicial process.

Section 5 expresses the general rule which subjects the Crown to all liabilities
in tort to which, if it were a person of full age and capacity, it would be subject. Subsections (2) to (5) provide
interpretative guides while subs. (6), excepts from the general rule Crown liability in respect of anything done or
omitted to be done by a person, while discharging or purporting to discharge responsibilities of a judicial nature
vested in him or responsibilities that he has in connection with the execution of the judicial process.

The claim asserted here depends upon the actions of the Crown Attorneys and the Attorney General, specifically
the decision to prosecute the appellant for murder. The decision to prosecute is a judicial decision and is obviously
vested in the Attorney General and executed on his behalf by his agents, the Crown Attorneys: see The Queen v.
Comptroller-General of Patents, Designs, and Trade Marks, [1899] 1 Q.B. 909 (C.A.) A.L. Smith L.J. said, at pp.
913-14:

I wish to say a word or two about the position of the Attorney-General, because in my judgment it is of
importance in this case, and his position appears likely to be lost sight of. Everybody knows that he is
the head of the English Bar. We know that he has had from the earliest times to perform high judicial
functions which are left to his discretion to decide. For example, where a man who is tried for his life
and convicted alleges that there is error on the record, he cannot take advantage of that error unless he
obtains the fiat of the Attorney-General, and no Court in the kingdom has any controlling jurisdiction
over him. That perhaps is the strongest case that can be put as to the position of the Attorney-General
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in exercising judicial functions. Another case in which the Attorney-General is pre-eminent is the
power to enter a nolle prosequi in a criminal case. I do not say that when a case is before a judge a
prosecutor may not ask the judge to allow the case to be withdrawn, and the judge may do so if he is
satisfied that there is no case; but the Attorney-General alone has power to enter a nolle prosequi, and
that power is not subject to any control. Another case is that of a criminal information at the suit of the
Attorney-General -- a practice which has, I am sorry to say, fallen into disuse. The issue of such an
information is entirely in the discretion of the Attorney-General, and no one can set such an
information aside. There are other cases to which I could refer to be found in old and in recent statutes,
but I have said enough to shew the high judicial functions which the Attorney-General performs....

The Crown Attorneys and the Attorney General in deciding to prosecute the appellant would therefore come within
s. 5(6) of the Act, and the Crown would have its statutory immunity despite any uncertainty which might arise
because of an argument under s. 2(2)(d) of the Act, based on the concept of "due" enforcement of the criminal law.
The Attorney General and his agents, whatever the motives underlying their conduct, were surely, in the words of
s. 5(6), "discharging or purporting" to discharge responsibilities of a judicial nature. In my view, the Crown is
rendered immune by the express terms of s. 5(6) of the Act from liability to the appellant.

The fact of Crown immunity in this case does not necessarily mean that a similar immunity for the Attorney
General and his agents follows. Any immunity that they might enjoy must find its own independent footing and the
fact that the Act extends an immunity to the Crown in this case, therefore, cannot be understood as conferring or
evidencing an immunity for the Attorney General and the Crown Attorneys. This point was made by Hart J.A. in
the case of Curry v. Dargie (1984), 28 C.C.L.T. 93 (N.S.C.A.), where he held that, while the Proceedings Against
the Crown Act, R.S.N.S. 1967, c. 239, at p. 107, might absolve the provincial Crown from liability, a Crown
servant, in that case a residential tenancy officer, could still be personally liable for misconduct:

It seems to me that we are dealing here, once again, with the immunity of the Crown and not that of a tortfeasor.

It has been pointed out that the Proceedings Against the Crown Act was passed to give citizens the right to sue the
Crown for the tortious acts of its officers and servants. The Act also prevents suits against the Crown
for acts of its officers or servants carried out in the due enforcement of valid legislation. The Act was
not designed, however, to protect the officers and servants of the Crown personally from actions arising
out of torts committed by them against members of the public, whether during the course of their
employment or not, which were not done solely for the due enforcement of the criminal law or the
provisions of any act of the Legislature....

What then is the nature of the immunity, if any, enjoyed by the Attorney General at common law?

There is clear authority in the jurisprudence of most common law, and some civil law, jurisdictions for the
proposition that public officers and officials discharging or purporting to discharge the duties and powers of their
offices may be personally liable in damages for wrongful conduct. The leading case in Canada on this point is
Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121. The facts are well known. Roncarelli was a
restaurant owner in Quebec. He was a member of a religious group, the Jehovah's Witnesses, and he supported their
cause financially and in assisting members of the group who from time to time ran afoul of the law. Duplessis was
the Premier of Quebec and, as well, Attorney General of the province. The policy of the Government was opposed
to the Jehovah's Witnesses and Duplessis sought to eliminate Roncarelli as an opponent in his efforts to curb the
Jehovah's Witnesses. He ordered the General Director of the Quebec Liquor Commission, which had the legislative
authority to "grant, refuse or cancel permits for the sale of alcoholic liquors," to revoke Roncarelli's liquor licence
and to forever bar him from obtaining another. This ruined his business and he brought action for damages against
Duplessis for the wrongful revocation of his licence and the prohibition against his obtaining a further licence. A
majority in this Court held that Duplessis was liable. The judgment of Rand J. (with whom Judson J. concurred) has
been regarded as the leading judgment in the case. He saw the issue in these terms, at p. 137:

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In these circumstances, when the de facto power of the Executive over its appointees at will to such a statutory
public function is exercised deliberately and intentionally to destroy the vital business interests of a
citizen, is there legal redress by him against the person so acting?

He concluded that there was legal redress in the form of damages. He expressed the view that there existed a
general presumption in legislation and regulation that powers given by the legislation will be exercised in good faith
and without improper motives. At page 140, he said:

In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action
can be taken on any ground or for any reason that can be suggested to the mind of the administrator;
no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power
exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the
statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are
always implied as exceptions. "Discretion" necessarily implies good faith in discharging public duty;
there is always a perspective within which a statute is intended to operate; and any clear departure
from its lines or objects is just as objectionable as fraud or corruption.

In this context, it should be noted that in commencing and prosecuting criminal offences the Attorney General and
his agents, the Crown Attorneys, are exercising statutory powers: see Ministry of the Attorney General Act, R.S.O.
1980, c. 271; Crown Attorneys Act, R.S.O. 1980, c. 107; and the Criminal Code, R.S.C. 1985, c. C-46, s. 504.
Rand J. was also of the view that the acts shown to have been done by the respondent put him beyond the protection
of any immunity which could attach to his office. He added, at pp. 141-42:

The act of the respondent [Duplessis] through the instrumentality of the Commission brought about a breach of an
implied public statutory duty toward the appellant; it was a gross abuse of legal power expressly
intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him,
as it was intended to do, the destruction of his economic life as a restaurant keeper within the province.
Whatever may be the immunity of the Commission or its member from an action for damages, there is
none in the respondent. He was under no duty in relation to the appellant and his act was an intrusion
upon the functions of a statutory body. The injury done by him was a fault engaging liability within the
principles of the underlying public law of Quebec:  Mostyn v. Fabrigas, and under art. 1053 of the
Civil Code. That, in the presence of expanding administrative regulation of economic activities, such a
step and its consequences are to be suffered by the victim without recourse or remedy, that an
administration according to law is to be superseded by action dictated by and according to the arbitrary
likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the
beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure.

It will be observed that Duplessis in the Roncarelli case purported to act not only as the Premier of Quebec but
also as the Attorney General. It would appear to be clear from the majority judgments in Roncarelli that the
principle that public officers of the highest rank in Canada who exercise the powers of their office in excess or in
abuse of those powers will be liable in damages for injuries resulting. This principle has been well founded in
English authority: see Mostyn v. Fabrigas (1774), 1 Cowp. 161, 98 E.R. 1021, where the Governor of Minorca
was held to be liable in damages in a civil action for false imprisonment of a native Minorcan. Lord Mansfield
rejected the Governor's claim for immunity at p. 175 Cowp., p. 1029 E.R.:

Therefore to lay down in an English Court of Justice such a monstrous proposition, as that a governor acting by
virtue of letters patent under the Great Seal, is accountable only to God, and his own conscience; that
he is absolutely despotic, and can spoil, plunder, and affect His Majesty's subjects, both in their liberty
and property, with impunity, is a doctrine that cannot be maintained.

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See, as well, Henly v. Mayor of Lyme (1828), 5 Bing. 91, 130 E.R. 995.

Another case expressing the same or a similar proposition is Asoka Kumar David v. Abdul Cader, [1963] 3 All
E.R. 579 (P.C.) In that case, a licensing authority had refused a licence for the operation of a cinema and the
appellant brought action alleging a malicious refusal of licence. The action was struck out in a pre-trial motion and
the Court of Appeal of Ceylon supported the respondent. In the judicial committee, Viscount Radcliffe expressed
the view that the case was not one which should have been the subject of a pre-trial disposition, and said, at p. 582:

Since then [1907] the English courts have had to give much consideration to the general question of the rights of the
individual dependent on the exercise of statutory powers by a public authority.... In their lordships'
opinion it would not be correct today to treat it as establishing any wide general principle in this field:
certainly it would not be correct to treat it as sufficient to found the proposition, as asserted here, that an
applicant for a statutory licence can in no circumstances have a right to damages if there has been a
malicious misuse of the statutory power to grant the licence. Much must turn in such cases on what
may prove to be the facts of the alleged misuse and in what the malice is found to consist. The
presence of spite or ill-will may be insufficient in itself to render actionable a decision which has been
based on unexceptionable grounds of consideration and has not been vitiated by the badness of the
motive. But a "malicious" misuse of authority, such as is pleaded by the appellant in his plaint, may
cover a set of circumstances which go beyond the mere presence of ill-will, and in their lordships' view
it is only after the facts of malice relied on by a plaintiff have been properly ascertained that it is
possible to say in a case of this sort whether or not there has been any actionable breach of duty.

It would appear on the basis of the authorities cited that in general terms public officers are entitled to no special
immunities or privileges when they act beyond the powers which are accorded to them by law in their official
capacities. It would follow, then, that where a public officer, a servant of the Crown, exceeds the powers of his
office or acts improperly in fraud of his duties and powers, or acts with malice in the discharge of his duties, he does
not have immunity from civil suit and where, by reason of such excess of power or improper motive, he causes
damage he may be civilly liable in damages. This, indeed, seems clear as far at least at it may concern public
servants who act in administrative capacities. However, the question before us involves a consideration of the
position of the Attorney General, acting in his capacity as the chief law officer of the Crown concerned with the
commencement and prosecution of criminal proceedings against accused persons.

The Court of Appeal, as has been said, found an absolute immunity from civil liability on the part of the Attorney
General and the Crown Attorneys, and in reaching this conclusion they placed special emphasis on Owsley v. The
Queen in right of Ontario and Richman v. McMurtry, supra, in the Ontario High Court and, as well, on Imbler v.
Pachtman, 424 U.S. 409 (1976). They formed the view that the absolute immunity was a clearly established feature
of the common law. This issue has been considered in many Canadian cases in recent years: see Unterreiner v.
Wilson (1982), 1982 CanLII 1814 (ON SC), 40 O.R. (2d) 197 (H.C.), per Gray J., affirmed (1983), 1983 CanLII
1968 (ON CA), 41 O.R. (2d) 472 (C.A.);  Owsley v. The Queen in right of Ontario, supra; Richman v. McMurtry,
supra;  Bosada v. Pinos (1984), 1984 CanLII 2096 (ON SC), 44 O.R. (2d) 789 (H.C.), per Pennell J.;  Curry v.
Dargie, supra;  German v. Major (1985), 1985 ABCA 176 (CanLII), 39 Alta. L.R. (2d) 270 (C.A.); and Levesque v.
Picard (1985), 66 N.B.R. (2d) 87 (C.A.), leave to appeal to the Supreme Court of Canada granted May 22, 1986,
[1986] 1 S.C.R. x, notice of discontinuance filed January 7, 1987, [1987] 1 S.C.R. x.

These cases do not offer complete support for the position taken in the Court of Appeal. The cases decided in the
Ontario courts, which are noted above, reach the conclusion that the prosecutorial immunity is absolute. In reaching
a similar conclusion in the case at bar, Thorson J.A. relied extensively on American authority with particular
emphasis on the judgments of Learned Hand J. in Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), and of Powell
and White JJ., of the U.S. Supreme Court, in Imbler v. Pachtman, supra. These cases adopt the view that the social
need to have prosecutors who are charged with the prosecution of criminal cases freed from the threat of civil
action, so that they may fearlessly and objectively conduct the prosecutions justifies the adoption of the absolute

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rule. Powell J. in Pachtman, supra, at p. 428, expressed agreement with the words of Learned Hand J. in Gregoire,
supra, at p. 581, where he said:

As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In
this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest
officers than to subject those who try to do their duty to the constant dread of retaliation....

But the position respecting prosecutorial immunity is not unanimous. Other courts in other jurisdictions have
indicated that they would not necessarily extend absolute immunity to those executing prosecutorial functions. In
Riches v. Director of Public Prosecutions, [1973] 2 All E.R. 935 (C.A.), the plaintiff had been acquitted of a
criminal charge and sought damages for malicious prosecution against the Director of Public Prosecutions. I
observe, that in respect of the institution of prosecutions against individuals, the Director of Public Prosecutions is
effectively performing the same function as a Canadian provincial Attorney General. In that case, although
Stephenson L.J. held that the material before the Court disclosed that there had been a basis in evidence for the
plaintiff's prosecution and that there was no cause of action disclosed by the statement of claim, he rejected the
proposition that the Director of Public Prosecutions could never be found liable for malicious prosecution. He said,
at p. 941:

I do not wish to be taken as saying that there may never be a case where a prosecution has been initiated and
pursued by the Director of Public Prosecutions in which it would be impossible for an acquitted
defendant to succeed in an action for malicious prosecution, or as saying that the existence of the
Attorney-General's fiat where required conclusively negates the existence of malice and conclusively
proves that there was reasonable and probable cause for the prosecution. There may be cases where
there has been, by even a responsible authority, the suppression of evidence which has led to a false
view being taken by those who carried on a prosecution and by those who ultimately convicted. But
that case is, as it seems to me, many miles from this one. There is nothing in the judgment of the Court
of Criminal Appeal in this particular case which lends any support to the view that there was no case
for the plaintiff to answer; and I cannot find in anything that he has said to us or in any document that
has been put before us anything to suggest that there was in existence material showing that there was
no basis in evidence for a prosecution of him on the conspiracy charge or on any of the three
substantive charges which he had to meet at the Suffolk Assizes. In those circumstances, as it seems to
me, he has failed to show that the defendant put the facts unfairly before prosecuting counsel, that there
was anything like a lack of reasonable or probable cause, or malice, on the defendant's part or that there
is any possibility of such material being produced.

In Canada, decisions in the Alberta and Nova Scotia courts cast doubt on the existence of the complete immunity.
In German v. Major, supra, the plaintiff had been prosecuted under the Income Tax Act. The trial judge acquitted
on the basis of a doubt as to guilt and the defendant taxpayer then sued the prosecutor for malicious prosecution.
Though Kerans, J.A. considered that the material before the court disclosed that the plaintiff's case was "doomed
beyond doubt to fail", for absence of proof of malice, and because there were reasonable grounds for the prosecution
he also considered that the prosecutor's immunity to prosecution was not absolute. In the closing paragraph of his
judgment, at p. 286, he said:

Counsel for the Attorney General who acts as his agent in the prosecution of a criminal case is not accountable in
civil proceedings to the accused except possibly to the extent that it is alleged against him that he has
not acted in good faith, and to that extent the allegation falls within the nominative tort of malicious
prosecution, and that cause of action has been dealt with [see p. 282]. I would therefore strike those
portions of the statement of claim which deal with the remaining claims by German against Major.
[Emphasis added.]

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It would follow that had the prosecutor proceeded solely or principally on an improper motive: for example, malice,
then coming within Kerans J.A.'s conception there would be no immunity against malicious prosecution. In Curry
v. Dargie, supra, it was held that a residential tenancy officer who had instituted proceedings against a tenant could
not claim an absolute prosecutorial immunity. Relying in part on the earlier case of Warne v. Province of Nova
Scotia (1969), 1 N.S.R. (2d) 27 (S.C.T.D.), where Gillis J. refused to strike out a personal claim against the
provincial Minister of Agriculture, Hart J.A. explained that he was not willing to go as far as the Ontario cases had
gone in extending prosecutorial immunity. Although he distinguished the case before him from a case where the
Attorney General or a Crown Attorney had instituted a prosecution, he made it clear that he was not deciding the
issue as to the immunity of Attorneys General and Crown Attorneys. He said, at p. 110:

I am not prepared to go as far as Galligan J. [in Richman, supra] in holding that an officer of the Crown cannot be
liable for a proceeding commenced maliciously, but it is not necessary to consider that issue at the
moment. I do not believe that in the case at Bar it can be said that the respondent in laying the
information against the appellant was in fact carrying out a judicial function similar to those carried out
by Attorneys General and prosecutors. An information can be laid by any person and there is no
obligation under the Residential Tenancies Act requiring that it be laid by the respondent. Surely a
person who undertakes to swear that she has reasonable and probable cause to believe that an offence
has been committed must take personal responsibility for the results of that act and cannot simply say
that she was merely following instructions of her superiors. Nor can it be said that she was by her act
enforcing the criminal law or the provisions of any statute. She was simply setting in motion the forces
of the justice system which would enable the persons charged with its administration to perform their
duties. She was in no different position from the police informant or other person who lays an
information in a criminal case without reasonable and probable cause for believing that the offence had
been committed and with some malicious intent. Such a person is always liable to an action for
malicious prosecution. [Emphasis added.]

The basis upon which Hart J.A. draws the distinction between the residential tenancy officer and the Attorney
General, and which erases any doubt as to the non-existence of an immunity for the residential tenancy officer, is the
fact that the Attorney General exercises a "judicial function" in commencing a prosecution, whereas the residential
tenancy officer does not. I have already referred to the "judicial" nature of the Attorney General's decision to
prosecute: see the discussion of The Queen v. Comptroller-General of Patents, Designs, and Trade Marks, supra.
But can it be said that the mere fact of the Attorney General's decision being "judicial" confers an absolute
immunity? I do not think the law is decided on this point.

The "judicial" nature of the Attorney General's decision to prosecute does not in any way render him a "court",
that is, an adjudicative entity. See on this point, Re Van Gelder's Patent (1888), 6 R.P.C. 22 (C.A.), where Lord
Esher, M.R., said, at p. 27:

If what I have said is true, after all the Attorney-General is not a Court. He may have a judicial function to perform,
but he is not a Court, and prohibition does not lie to him .... [Emphasis added.]

What is meant by the words "prohibition does not lie to him" is that the Attorney General's decision to prosecute is
not reviewable by any court. As A.L. Smith L.J. noted in Comptroller-General of Patents, supra, at p. 914:

The issue of such an [a criminal] information is entirely in the discretion of the Attorney-General, and no one can set
such an information aside .... [Emphasis added.]

Hence, the law is settled that the Attorney General's exercise of his "judicial" functions, such as the commencement
of criminal proceedings, the entering of a nolle prosequi, the entering of a stay under s. 579(1) of the Criminal Code,
or the preferring of direct indictments in the absence of a committal for trial after a preliminary hearing, are all

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incapable of judicial review and to that extent, the Attorney General enjoys an absolute and total immunity on the
basis that he is performing a judicial function.

Immunity from judicial review, however, does not equate to immunity from civil suit for damages incurred as a
result of a maliciously instituted and executed prosecution. This Court has held that, in respect of adjudicative
judicial decisions, there is a complete immunity from civil suit: Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2
S.C.R. 716. In light of the reservations expressed by learned justices of the Alberta, Nova Scotia and English Courts
of Appeal, however, I am loath to make a ruling on an appeal of a preliminary motion that a similar absolute
immunity exists for the benefit of the Attorney General and his agents in respect of suits for malicious prosecution.
If the Court were to make such a ruling on a point of this importance in a total absence of evidence, it would, in my
view, be adopting a dangerous course. Let us not forget that, when Lord Mansfield was faced with the bleak reality
of a colonial governor gone awry, imprisoning innocent people without proper trials and in contravention of the law,
"absolutely despotic" and "accountable only to God, and his own conscience", he felt compelled to reject any notion
of immunity by virtue of the Governor's office: see Mostyn v. Fabrigas, supra. The state of the law relating to the
immunity of the Attorney General is, as has been shown, far from clear. Before laying down any proposition to the
effect that the Attorney General and his agents enjoy absolute immunity from civil suit, there must be a trial to
permit a conclusion on the question of prosecutorial immunity and to furnish -- in the event that it is decided that the
immunity is not absolute -- a factual basis for a determination of whether or not in this case the conduct of the
prosecution was such that the appellant is entitled to a remedy.

Furthermore, the Attorney General's immunity from judicial review, based on the exercise of a judicial function,
does not equate with immunity from civil suit for damages for wrongful conduct in the performance of prosecutorial
functions which do not involve the exercise of a judicial function. Indeed, most of the functions and acts performed
by Crown Attorneys, as agents of the Attorney General, would fall into this category and, accordingly, the immunity
may not extend to claims for damages as a result of a prosecution, however instituted but carried out with malice. A
ruling on a preliminary motion to the effect that Attorneys General and their agents are absolutely immune from all
liability for suits for malicious prosecution may therefore be too expansive and even ill-founded.

Therefore, my view is that this case is not one which should have been disposed of upon a pre-trial motion under
Rule 126. The law has long been settled that it is only in the clearest of cases that actions will be struck out, and this
is not such a clear case. Of interest in this connection are the comments made in an unreported case in the British
Columbia Court of Appeal (Barrisove v. McDonald, B.C.C.A., No. 490/74, November 1, 1974 (McFarlane,
Robertson and Carrothers JJ.A.)) where an action was commenced against a county court judge for alleged
misconduct in the course of the plaintiff's trial. The pleadings were struck out in the Supreme Court of British
Columbia as alleging no reasonable cause of action, but an appeal was allowed, holding, in effect, that the
allegations against the judge were cognizable in a civil action for damages. This case cannot now be considered as
authoritative in view of the judgment in this Court in Morier v. Rivard, supra, but the comments made by Robertson
J.A. in agreeing with the disposition made of the appeal are significant. He said (at p. 10):

I agree with the disposition proposed by my brother [McFarlane] and agree substantially with what he has said. I
wish, however, to guard myself against being said to have made a pronouncement on the law which
will be binding on the trial judge or upon this Court if following a trial, there should be an appeal to the
Court. Rather than saying categorically that the endorsement on the writ and the Statement of Claim
discloses a cause of action to which there can be no defence, I prefer to put my reasons on the ground
that the question is not one which should have been decided in a proceeding of the sort that was taken
here. It is so far from clear that no cause of action is disclosed that, as I have indicated, that stage of the
proceedings was not one at which the question should have been decided.

In view of the uncertainty of the law upon this question, it is not possible, in my view, to conclude that the appellant
has not alleged a reasonable cause of action in her pleadings and, therefore, the move to strike out the pleadings and
dismiss the action as against the Attorney General must fail.

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I would therefore dismiss the appeal as against the Crown. There is no order as to costs. I would allow the appeal
as against the Attorney General with costs, and direct that the matter be returned to the Supreme Court of Ontario
for trial of the claim against the Attorney General.

//La Forest J.//

The following are the reasons delivered by

LA FOREST J. -- I agree with my colleague Lamer J. except that I prefer to rely solely on the common law
position as set forth by him, leaving consideration of Charter implications to another day when it becomes
necessary to deal with them.

//L'Heureux-Dubé J.//

The following are the reasons delivered by

L'HEUREUX-DUBÉ J. (dissenting in part) -- While I agree with my colleague, Justice McIntyre, that the Crown
enjoys absolute immunity from suit even for malicious prosecution, I respectfully disagree with his conclusion that
the Attorney General and, by extension, Crown Attorneys, may not. Consequently, I would dismiss the appeal.

My colleague McIntyre J. is of the view that the lower courts erred in striking out the appellant's statement of
claim under Rule 126 of the Ontario Rules of Practice under circumstances where there was sufficient doubt as to
the actual state of the law on the question. He finds that the law in Canada is somewhat ambiguous as to the
question of the degree of immunity of Attorneys General and Crown Attorneys. For that reason, he orders the
matter to proceed to trial. My point of divergence from the reasons of McIntyre J. concerns the appropriate
response of this Court under the circumstances. Since, in my view, strong policy reasons exist for granting
Attorneys General and Crown Attorneys absolute immunity from prosecution for actions taken in the proper
exercise of their powers, I see no reason to prolong this matter any further by remitting it to trial to decide this very
same issue.

I would like to make it clear at the outset that I am proceeding from the premise that any decisions taken or acts
performed by the respondents in this case were done within the scope of their authority. I perceive the claim of the
appellant to be founded on the idea that her prosecution by the respondents, though carried out within the bounds of
their authority, was malicious. In this respect, I would distinguish the situation from that which arose in Roncarelli
v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121. In that case, the claim was brought on the basis that the
respondent had acted outside the scope of his legitimate authority. The civil action was brought against Maurice
Duplessis in his capacity as an individual, and not against Duplessis in either of his official roles as Premier of the
province or as Attorney General. As Rand J. stated, at pp. 142-43:

The office of Attorney-General traditionally and by statute carries duties that relate to advising the Executive,
including here, administrative bodies, enforcing the public law and directing the administration of
justice. In any decision of the statutory body in this case, he had no part to play beyond giving advice
on legal questions arising. In that role his action should have been limited to advice on the validity of a
revocation for such a reason or purpose and what that advice should have been does not seem to me to
admit of any doubt. To pass from this limited scope of action to that of bringing about a step by the
Commission beyond the bounds prescribed by the legislature for its exclusive action converted what
was done into his personal act. [Emphasis added.]

And at p. 144:

Was the act here, then, done by the respondent in the course of that exercise [of his functions]? The basis of the
claim, as I have found it, is that the act was quite beyond the scope of any function or duty committed

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to him, so far so that it was one done exclusively in a private capacity, however much in fact the
influence of public office and power may have carried over into it.

It may well be that a governmental authority who acts with malice acts outside of the scope of his authority.
However, this is not the issue which was put before us. It is to be noted that the appellant chose to proceed against
the Attorney General in his official, rather than personal, capacity. In her factum, the appellant also maintains that
all of the respondents were acting, "at all material times" as agents of the Attorney General for Ontario, who "acted
as an agent" of Her Majesty the Queen in right of Ontario.

For the purposes of Rule 126, as McIntyre J. has indicated, we must assume that all the facts alleged by the
appellant in her submissions are true. The question then, to be decided before the matter is allowed to go to trial, is
simply: does the appellant's claim disclose a reasonable cause of action? This is a pure question of law, and no
evidence is required for its determination. In fact, there is every advantage, in terms of saving the time and cost of a
trial, to decide a question of law at the outset. This, in fact, is the very reason for the existence of Rule 126.

In the present case, a determination that the Attorney General and Crown Attorneys enjoy absolute immunity
would settle the question definitively. Both the judge at first instance and the Court of Appeal of Ontario proceeded
on this basis. I intend to do so as well. This is also the course followed in Morier v. Rivard, 1985 CanLII 26
(SCC), [1985] 2 S.C.R. 716, which came to this Court on an interlocutory question similar to the one in this case.

This, of course, does not mean that I disagree with McIntyre J. when he proposes that, in general, important
questions should not be disposed of in interlocutory fashion. However, this, in my view, does not apply in cases
such as the one before us, where the defense offered at the outset is one of law only, namely that the right of action
is barred independently of the facts alleged.

The action brought by Nelles is completely dependent upon the answer to the question of whether Attorneys
General and Crown Attorneys are immune from civil suit. As such, the matter can and should be decided by this
Court in the present appeal. My answer to the question is that the immunity from civil suit enjoyed by Attorneys
General and Crown Attorneys is absolute when they are acting within the bounds of their authority. I rest my
reasons on the very carefully considered judgment of the unanimous Ontario Court of Appeal:  Nelles v. The Queen
in right of Ontario (1985), 1985 CanLII 160 (ON CA), 51 O.R. (2d) 513. The Court of Appeal (Houlden, Thorson
and Robins JJ.A.) undertook a thorough review of the authorities in the course of a lengthy and well reasoned
discussion of the arguments on either side of the issue.

As Thorson J.A. put it, at p. 531:

. . . the concept that the Attorney-General and Crown Attorneys should enjoy an absolute immunity from civil suit
for their conduct in initiating and conducting criminal prosecutions is a troubling one. That it confronts
thoughtful and fair-minded persons with the need to make what cannot be other than a difficult choice,
is obvious.

Ultimately, however, "[a]s is so often the case, the answer must be found in a balance between the evils inevitable
in either alternative" (Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), at p. 581).

While there are significant differences between the role of prosecutors in the American legal system, and the role
of Crown Attorneys in Canada, it is my view that the basic principles underlying the grant of immunity to these
agents are the same. These principles have been clearly elucidated in American case law. For example, in Gregoire,
supra, Learned Hand J. expanded on the underlying rationale for the immunity of officials, at p. 581:

The justification for doing so is that it is impossible to know whether the claim is well founded until the case has
been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and
to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the
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most irresponsible, in the unflinching discharge of their duties. Again and again the public interest
calls for action which may turn out to be founded on a mistake, in the face of which an official may
later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of
punishing public officers who have been truant to their duties; but that is quite another matter from
exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors.

Similarly, Powell J. in Imbler v. Pachtman, 424 U.S. 409 (1976), observed, at pp. 422-23:

The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law
immunities of judges and grand jurors acting within the scope of their duties. These include concern
that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his
public duties, and the possibility that he would shade his decisions instead of exercising the
independence of judgment required by his public trust.

The role of absolute immunity is not to protect the interests of the individual holding the office, rather it is to
advance the greater public good. Absolute immunity is based upon principles of public policy. In Yaselli v. Goff, 12
F.2d 396 (2d Cir. 1926), Rogers J. wrote, at p. 406:

The public interest requires that persons occupying such important positions and so closely identified with the
judicial departments of the government should speak and act freely and fearlessly in the discharge of
their important official functions. They should be no more liable to private suits for what they say and
do in the discharge of their duties than are the judges and jurors, to say nothing of the witnesses who
testify in a case.

Attorneys General and Crown Attorneys are often faced with difficult decisions as to whether to proceed in
matters which come before them. It is unfortunate that, like all human beings, they cannot be immune from error.
However, the holders of such offices can and should be immune from prosecution for any such errors which occur
in the course of the exercise of their functions. The freedom of action of Attorneys General and Crown Attorneys is
vital to the effective functioning of our criminal justice system. In my view, the greater public interest is best served
by giving absolute immunity to these agents.

I would dismiss the appeal.

    Appeal dismissed as against the Crown and appeal allowed with costs as against the Attorney General,
L'HEUREUX‑DUBÉ J. dissenting in part.
 
   Solicitors for the appellant:  Stikeman, Elliott, Toronto.
 
   Solicitor for the respondents:  R. F. Chaloner, Toronto.

*Beetz, Estey and Le Dain JJ. took no part in the judgment.

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Federation of Law Societies of Canada
By for the law societies members of the

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 120

R. v. McNeil

[2009] 1 SCR 66, 2009 SCC 3 (CanLII)

1/6/2019 CanLII - 2009 SCC 3 (CanLII) 121

R. v. McNeil, [2009] 1 SCR 66, 2009 SCC 3 (CanLII)

Date: 2009-01-16
File 31852
number:
Other 301 DLR (4th) 1; 383 NR 1; 246 OAC 154; 238 CCC (3d) 353; 62 CR (6th) 1; 185 CRR (2d) 26; AZ-50531046;
citations: [2009] CarswellOnt 116; EYB 2009-153175; JE 2009-174; [2009] SCJ No 3 (QL); [2009] ACS no 3
Citation: R. v. McNeil, [2009] 1 SCR 66, 2009 SCC 3 (CanLII), <http://canlii.ca/t/2254d>, retrieved on 2019-01-06

SUPREME COURT OF CANADA

CITATION: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 DATE: 20090116

DOCKET: 31852

BETWEEN:
Attorney General of Ontario, 3rd Party Record Holder
Appellant
and
Lawrence McNeil, Her Majesty the Queen and Chief
of Barrie Police Service, 3rd Party Record Holder
Respondents
‑ and ‑
Attorney General of Alberta, Matthew Marshall,
Police Association of Ontario and Criminal
Lawyers’ Association (Ontario)
Interveners

CORAM: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

REASONS FOR JUDGMENT: Charron J. (McLachlin C.J. and Binnie, LeBel, Deschamps,
(paras. 1 to 61) Fish, Abella and Rothstein JJ. concurring)

* Bastarache J. took no part in the judgment.

______________________________

R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66

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Attorney General of Ontario, 3rd Party Record Holder Appellant

v.

Lawrence McNeil, Her Majesty The Queen and Chief

of Barrie Police Service, 3rd Party Record Holder Respondents

and

Attorney General of Alberta, Matthew Marshall,

Police Association of Ontario and Criminal
Lawyers’ Association (Ontario) Interveners

Indexed as: R. v. McNeil

Neutral citation: 2009 SCC 3.

File No.: 31852.

2008: March 19; 2009: January 16.

Present: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for ontario

Criminal law — Evidence — Production — Crown’s duty to disclose — Corollary police obligation
to disclose to Crown — Accused charged with drug‑related offences — Crown’s main police witness involved in
drug‑related misconduct leading to disciplinary proceedings and criminal charges — Accused sought production
of arresting officer’s police disciplinary records and criminal investigation files — Whether common law
production regime for third party records applicable only in cases where these records attract reasonable
expectation of privacy — Whether criminal investigation files relating to third party accused attract reasonable
expectation of privacy — Whether police records relating to findings of misconduct by officer involved in
investigation against accused fall within scope of first party disclosure package from police to Crown.

The accused was convicted on multiple drug charges. The arresting officer was the Crown’s main
witness. After his conviction but before sentencing, the accused learned that the arresting officer was engaged in
drug‑related misconduct that had led to both internal disciplinary proceedings under the Ontario Police Services
Act and to criminal charges. In a preliminary motion before the Court of Appeal, the accused sought production
of all documents related to the arresting officer’s misconduct, claiming that he required this material to assist
him in preparing an application to introduce fresh evidence on his appeal from conviction. The Court of Appeal
held that an O’Connor‑type procedure is only required in cases where third party records attract a reasonable
expectation of privacy, and concluded that no expectation of privacy existed in respect of the criminal
investigation files. Subject to appropriate redactions and the resolution of any privilege claims, the Court of
Appeal ordered the third parties to produce the criminal investigation files in their possession related to the
charges against the arresting officer to the federal Crown prosecuting the accused’s case. Subsequently, the
arresting officer pleaded guilty to one of the criminal charges brought against him. Evidence of the officer’s
conviction was admitted on the accused’s appeal, and the accused’s convictions were set aside, following which
the Crown undertook not to re‑prosecute him. The production issue in this case was rendered moot and the
accused withdrew his participation in this appeal. The Court appointed an amicus curiae and heard this appeal
despite its mootness.

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Held: The appeal is allowed and the order in the court below is set aside. The application having
become moot, the Court makes no further order.

The Crown’s obligation to disclose all relevant information in its possession to an accused is well
established at common law under the Stinchcombe regime. Under Stinchcombe, the Crown’s first party
disclosure obligation extends only to material relating to the accused’s case in the possession or control of the
prosecuting Crown. A question then arises as to whether the “Crown” for disclosure purposes encompasses
other state authorities. While the roles of the Crown and the police are separate and distinct, the police have a
duty to participate in the disclosure process. The necessary corollary to the Crown’s disclosure duty under
Stinchombe is the obligation of police 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. Records relating to findings of serious misconduct by police officers involved in the investigation
against the accused properly fall within the scope of the first party disclosure package due to the Crown from
police, where the police misconduct is either related to the investigation, or the finding of misconduct could
reasonably impact on the case against the accused. [14‑15] [22-23]

Production of disciplinary records and criminal investigation files in the possession of the police that
do not fall within the scope of this first party disclosure package is governed by the O’Connor regime for third
party production. The O’Connor procedure provides a general mechanism at common law for ordering
production of any record beyond the possession or control of the prosecuting Crown, and is not limited to cases
where third party records attract a reasonable expectation of privacy. To limit the applicability of the O’Connor
regime to those cases where a third party has an expectation of privacy in the targeted documents would raise
some uncertainty concerning the appropriate mechanism for accessing third party records when it is unknown
whether a reasonable expectation of privacy attaches. [11] [15]

The first step in the O’Connor procedure for production of documents in the possession of a third
party is for the person seeking production to satisfy the court that the documents are likely relevant to the
proceedings. If likely relevance is demonstrated by the applicant, the third party record holder may be ordered
to produce the documents for inspection by the court in order to determine whether production should be
ordered. Ultimately, what is required at this second stage of the common law regime is a balancing of the
competing interests at stake in the particular circumstances of the case. [28] [34] [35]

In most cases, a useful starting point for courts in balancing the competing interests at the second
stage of an O’Connor application will be to assess the true relevancy of the targeted record in the case against
the accused. Once a court has ascertained upon inspection that third party records are indeed relevant to the
accused’s case, in the sense that they pertain to an issue in the trial, the second stage balancing exercise is easily
performed. In effect, a finding of true relevance puts the third party records in the same category for disclosure
purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under
Stinchcombe. It may be useful to pose the question in this way: If the third party record in question had found its
way into the Crown prosecutor’s file, would there be any basis under the first party Stinchcombe disclosure
regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason
to arrive at a different outcome on the third party production application. The accused’s interest in obtaining
disclosure for the purpose of making full answer and defence will, as a general rule, outweigh any residual
privacy interest held by third parties in the material. This is particularly so in respect of criminal investigation
files concerning third party accused. [20] [39] [42]

That is not to say that residual privacy interests in the contents of criminal investigation files, police
disciplinary records or any other third party records should be disregarded. The court should ensure that a
production order is properly tailored to meet the exigencies of the case but do no more. To ensure that only
relevant material is produced and that no unwarranted invasion of privacy interests occurs, the court may find it
necessary to make a production order subject to redactions or other conditions. In addition, when just and

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appropriate to do so, the court may well impose restrictions on the dissemination of the information produced for
purposes unrelated to the accused’s full answer and defence or prosecution of an appeal. [43‑44] [46]

Cases Cited

Referred to: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Mills, 1999 CanLII
637 (SCC), [1999] 3 S.C.R. 668; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v.
Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754; R. v. Gingras (1992), 1992 CanLII 2826 (AB CA),
120 A.R. 300; R. v. Jack (1992), 1992 CanLII 2764 (MB CA), 70 C.C.C. (3d) 67; R. v. T. (L.A.) (1993), 1993
CanLII 3382 (ON CA), 14 O.R. (3d) 378; R. v. Gagné (1998), 1998 CanLII 12526 (QC CA), 131 C.C.C. (3d)
444; Driskell v. Dangerfield, 2008 MBCA 60 (CanLII), [2008] 6 W.W.R. 615; R. v. MacPherson (1991), 105
N.S.R. (2d) 123; R. v. Oliver (1995), 1995 CanLII 7518 (NS SC), 143 N.S.R. (2d) 134; R. v. Campbell, [1992]
N.S.J. No. 702 (QL); R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727; R. v. Durette, 1994 CanLII
123 (SCC), [1994] 1 S.C.R. 469; R. v. Clifford (2002), 2002 CanLII 14471 (ON CA), 163 C.C.C. (3d) 3; P. (D.)
v. Wagg (2004), 2004 CanLII 39048 (ON CA), 239 D.L.R. (4th) 501; R. v. Arsenault (1994), 1994 CanLII 5244
(NB CA), 153 N.B.R. (2d) 81; R. v. Ahluwalia (2000), 2000 CanLII 17011 (ON CA), 138 O.A.C. 154.

Statutes and Regulations Cited

Access to Information and Protection of Privacy Act, S.N.L. 2002, c. A‑1.1, s. 22.

Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q.,
c. A‑2.1, s. 28.

Canadian Charter of Rights and Freedoms, s. 7.

Code of ethics of Québec police officers, (1990) 122 G.O. II, 1760, s. 7(2).

Code of Professional Conduct Regulation, B.C. Reg. 205/98, s. 5(e).

Code of Professional Conduct Regulation — Police Act, N.B. Reg. 2007‑81, s. 36(1)(d)(iii).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 278.1 to 278.91, 278.3(4), 698(1), 700(1).

Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F‑25, s. 20.

Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 15.

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 14.

Freedom of Information and Protection of Privacy Act, R.S.P.E.I. 1988, c. F‑15.01, s. 18.

Freedom of Information and Protection of Privacy Act, S.M. 1997, c. 50, s. 25.

Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, s. 15.

Freedom of Information and Protection of Privacy Act, S.S. 1990‑91, c. F‑22.01, s. 15.

General, O. Reg. 123/98 (Police Services Act), Sch., s. 2(1)(c)(vi).

Police Service Regulation, Alta. Reg. 356/90, s. 5(2)(h)(vii).

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Police Services Act, R.S.O. 1990, c. P.15, s. 42(1)(e).

Privacy Act, R.S.C. 1985, c. P‑21, s. 22.

Right to Information Act, S.N.B. 1978, c. R‑10.3, s. 6(a), (f).

Authors Cited

Ontario. Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution
Discussions. Toronto: The Committee, 1993.

Ontario. Review and Recommendations Concerning Various Aspects of Police Misconduct, vol. I. Toronto:
Toronto Police Service, 2003 (online:
http://www.torontopolice.on.ca/publications/files/reports/ferguson1.pdf).

Paciocco, David M. “Filling the Seam between Stinchcombe and O’Connor: The ‘McNeil’ Disclosure
Application” (2007), 53 Crim. L.Q. 161.

APPEAL from a judgment of the Ontario Court of Appeal (Feldman, Simmons and Blair JJ.A.)
(2006), 2006 CanLII 40087 (ON CA), 218 O.A.C. 1, 215 C.C.C. (3d) 22, 43 C.R. (6th) 370, [2006] O.J.
No. 4746 (QL), 2006 CarswellOnt 7557, allowing a motion for production of certain documents. Appeal
allowed.

Christine Bartlett‑Hughes and Elise Nakelsky, for the appellant.

James C. Martin and Rick Visca, for the respondent Her Majesty the Queen.

H. Reginald Watson and Jill Sexsmith, for the respondent the Chief of Barrie Police Service, 3rd
Party Record Holder.

James A. Bowron, for the intervener the Attorney General of Alberta.

Gary R. Clewley and Henry S. Brown, Q.C., for the intervener Matthew Marshall.

Ian J. Roland and Danny Kastner, for the intervener the Police Association of Ontario.

David M. Porter and Christopher A. Wayland, for the intervener the Criminal Lawyers’ Association
(Ontario).

Marie Henein and Jordan Glick, for the amicus curiae.

The judgment of the Court was delivered by

CHARRON J. —

1. Introduction

[1] This appeal concerns an accused’s motion for production of police disciplinary records and
criminal investigation files relating to the Crown’s main police witness in the case against him. The respondent
Lawrence McNeil brought his motion in accordance with the procedure set out in R. v. O’Connor, 1995 CanLII
51 (SCC), [1995] 4 S.C.R. 411, for the production of third party records. The proceedings against McNeil have

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since been discontinued, McNeil has withdrawn his participation in this appeal, and the production issue is now
moot.

[2] Issues concerning the production of police disciplinary records and criminal investigation files
relating to third party accused occur frequently and, because the proceedings in which these questions generally
arise are interlocutory in nature, production orders are often evasive of appellate review. In addition, the third
parties in the present case have a subsisting interest in clarifying some of the uncertainties arising from the
decision below. For these reasons, the Court appointed an amicus curiae and heard this appeal despite its
mootness.

[3] The question of whether production of the particular documents at issue in the court below
should or should not have been ordered is no longer before us. The evidence and prior proceedings in the
current case will therefore be reviewed simply to provide the necessary background for discussion of the issues
canvassed by the parties on this appeal.

2. Background

[4] McNeil was arrested by Constable Rodney Hackett and other members of the Barrie Police
Service in respect of an alleged drug transaction. He was subsequently prosecuted by the federal Crown and
convicted on multiple drug charges, including possession of marijuana and cocaine for the purpose of
trafficking. Hackett was the Crown’s main witness in the case against McNeil. He was the only witness who
testified to the reasonable grounds supporting McNeil’s arrest. In addition, the trial judge’s ultimate finding that
McNeil’s admitted possession of marijuana and cocaine was for the purpose of trafficking turned on Hackett’s
credibility.

[5] After his conviction but before sentencing, McNeil learned that Hackett was engaged in
drug‑related misconduct that had led to both internal disciplinary proceedings under the Ontario Police Services
Act, R.S.O. 1990, c. P.15, and to criminal charges. Both proceedings against Hackett were ongoing at the time.
Following an aborted application to reopen his trial to introduce evidence about Hackett’s misconduct, McNeil
chose to proceed to sentence and appeal his conviction instead.

[6] In a preliminary motion before the Court of Appeal for Ontario, McNeil sought production of
all documents related to Hackett’s misconduct, claiming that he required this material to assist him in preparing
an application to introduce fresh evidence on his appeal from conviction. The police disciplinary and criminal
investigation documents at issue were intermingled, and were in the possession of both the Barrie Police Service
and the provincial Crown prosecuting the criminal charges against Hackett. Both entities resisted production,
and the federal Crown supported their opposition to the motion.

[7] In O’Connor, this Court set out a two-part test for production of third party records. First, the
applicant must demonstrate that the information contained in the records is likely relevant. In the appellate
context, it was therefore incumbent on McNeil to show that the targeted documents were likely relevant to his
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proposed application to introduce fresh evidence on his appeal from conviction. Second, if the threshold test of
likely relevance is met, the court may order production of the records for its inspection. With the targeted
documents before it, the court weighs “the positive and negative consequences of production, with a view to
determining whether, and to what extent, production should be ordered” (O’Connor, at para. 137). The second
part of the O’Connor test essentially requires a court to conduct a balancing of the third party’s privacy interest
in the targeted documents, if any, and the accused’s interest in making full answer and defence.

[8] In the present case, the Court of Appeal found that some of the targeted records, including both
disciplinary police records and criminal investigation files, met the requisite relevancy threshold, satisfying the
first part of the O’Connor test. Rather than proceeding to the second part of the test, however, the court held that
an “O’Connor-type procedure” is only required in cases where third party records attract a reasonable
expectation of privacy ((2006), 2006 CanLII 40087 (ON CA), 218 O.A.C. 1). The court drew a distinction
between criminal investigation files and police disciplinary records, and concluded that no expectation of
privacy existed in respect of the former. Accordingly, subject to appropriate redactions and the resolution of any
privilege claims, the court ordered the third parties to produce the criminal investigation files in their possession
related to the charges against Hackett to the federal Crown prosecuting McNeil’s case. The court directed the
prosecuting Crown in McNeil’s case to determine whether the documents were in fact relevant to McNeil’s
appeal and, if so, to make disclosure to the accused. As for the police disciplinary records, the court noted the
conflicting jurisprudence on whether such records are subject to a reasonable expectation of privacy and invited
counsel to make further submissions on this issue. The balance of the motion was adjourned accordingly.

[9] The Attorney General of Ontario, as third party record holder, was granted leave to appeal to
this Court and the production order was stayed pending disposition of the appeal. Subsequently, Hackett
pleaded guilty to one of the criminal charges brought against him. Evidence of Hackett’s conviction was
admitted on McNeil’s appeal before the Court of Appeal for Ontario, and his convictions were set aside,
following which the Crown undertook not to re-prosecute him. McNeil then withdrew his participation in the
appeal. This Court acceded to the remaining parties’ request to proceed with the appeal despite its mootness and
appointed an amicus curiae to maintain a proper adversarial context.

3. Overview of the Issues on Appeal

[10] As stated earlier, the third party record holders in this case seek clarification in respect of some
of the uncertainties arising from the decision below. The issues canvassed before this Court are the following.

[11] First, by limiting the applicability of the O’Connor production regime to those cases where a
third party has an expectation of privacy in the targeted documents, the decision under appeal raises some
uncertainty concerning the appropriate mechanism for accessing third party records when it is unknown whether
a reasonable expectation of privacy attaches. As I will explain, the procedure set out in O’Connor provides a
general mechanism at common law for ordering production of any record beyond the possession or control of
the prosecuting Crown. Whether or not the targeted record is subject to a reasonable expectation of privacy is
one of the questions that must be determined at the hearing of an O’Connor application. For that pragmatic
reason alone, the operation of the common law production regime cannot be premised on the existence of a
reasonable expectation of privacy.

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[12] Second, to the extent that the decision in the court below suggests that there can be no
expectation of privacy in the contents of a criminal investigation file, it is in error. As this Court stated in R. v.
Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668: “Privacy is not an all or nothing right. It does not follow
from the fact that the Crown has possession of the records that any reasonable expectation of privacy
disappears” (para. 108). This principle holds equally in respect of criminal investigation files relating to third
party accused that are not in the possession or control of the prosecuting Crown. There can be no assumption
that criminal investigation files relating to third party accused persons do not attract an expectation of privacy
absent consideration of their particular contents and other relevant factors. The existence of a reasonable
expectation of privacy and its impact, if any, on a third party’s obligation to produce is always a contextual, fact-
based inquiry. Likewise, no blanket ruling can be made in respect of privacy interests in police disciplinary
records without regard to their contents.

[13] Third, to the extent that the operative terms of the production order below may suggest that
records in possession of one Crown entity are deemed to be in the possession of another, this interpretation
should be discarded. The notion that all state authorities constitute a single indivisible Crown entity for the
purposes of disclosure finds no support in law and, moreover, is unworkable in practice. Accordingly, Crown
entities other than the prosecuting Crown are third parties under the O’Connor production regime. As I will
explain, however, this does not relieve the prosecuting Crown from its obligation to make reasonable inquiries of
other Crown entities and other third parties, in appropriate cases, with respect to records and information in their
possession that may be relevant to the case being prosecuted. The Crown and the defence in a criminal
proceeding are not adverse in interest for the purpose of discovering relevant information that may be of benefit
to an accused.

[14] In addition to clarifying these three uncertainties, this case provides an appropriate context
within which to reiterate the respective obligations of the police and the Crown to disclose the fruits of the
investigation under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, and to consider the extent to
which relevant police disciplinary records and third party criminal investigation files should form part of this
“first party” disclosure package. The Crown’s obligation to disclose all relevant information in its possession to
an accused is well established at common law and is now constitutionally entrenched in the right to full answer
and defence under s. 7 of the Canadian Charter of Rights and Freedoms. 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.

[15] As I will explain, records relating to findings of serious misconduct by police officers involved
in the investigation against the accused properly fall within the scope of the “first party” disclosure package due
to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct
could reasonably impact on the case against the accused. The Crown, in turn, must provide disclosure to the
accused in accordance with its obligations under Stinchcombe. Production of disciplinary records and criminal
investigation files in the possession of the police that do not fall within the scope of this first party disclosure
package is governed by the O’Connor regime for third party production.

[16] I will first review the respective obligations of the Crown and the police to disclose the fruits of
the investigation against the accused.
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4. The Stinchcombe Duty to Disclose the Fruits of the Investigation

[17] The Crown’s obligation to disclose all relevant information in its possession relating to the
investigation against an accused is well established. The duty is triggered upon request and does not require an
application to the court. Stinchcombe made clear that relevant information in the first party production context
includes not only information related to those matters the Crown intends to adduce in evidence against the
accused, but also any information in respect of which there is a reasonable possibility that it may assist the
accused in the exercise of the right to make full answer and defence (pp. 343-44). The Crown’s obligation
survives the trial and, in the appellate context, the scope of relevant information therefore includes any
information in respect of which there is a reasonable possibility that it may assist the appellant in prosecuting an
appeal.

[18] While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few
exceptions. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by
law, the Crown must disclose to the accused all material in its possession. The Crown retains discretion as to the
manner and timing of disclosure where the circumstances are such that disclosure in the usual course may result
in harm to anyone or prejudice to the public interest. The Crown’s exercise of discretion in fulfilling its
obligation to disclose is reviewable by a court.

[19] As this Court confirmed in Mills, the Crown’s obligation under Stinchcombe to disclose the
fruits of the investigation does not signify that no residual privacy interest can exist in the contents of the
Crown’s file. It should come as no surprise that any number of persons and entities may have a residual privacy
interest in material gathered in the course of a criminal investigation. Criminal investigative files may contain
highly sensitive material including: outlines of unproven allegations; statements of complainants or witnesses
— at times concerning very personal matters; personal addresses and phone numbers; photographs; medical
reports; bank statements; search warrant information; surveillance reports; communications intercepted by
wiretap; scientific evidence including DNA information; criminal records, etc. The privacy legislation of all 10
provinces addresses the disclosure of information contained in law enforcement files. See Freedom of
Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 14; Access to Information and Protection of
Privacy Act, S.N.L. 2002, c. A-1.1, s. 22; Freedom of Information and Protection of Privacy Act, S.N.S. 1993,
c. 5, s. 15; Freedom of Information and Protection of Privacy Act, R.S.P.E.I. 1988, c. F-15.01, s. 18; Right to
Information Act, S.N.B. 1978, c. R-10.3, ss. 6(a) and 6(f); An Act respecting Access to Documents Held by
Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1, s. 28; The Freedom of Information
and Protection of Privacy Act, S.M. 1997, c. 50, s. 25; The Freedom of Information and Protection of Privacy
Act, S.S. 1990-91, c. F-22.01, s. 15; Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-
25, s. 20; Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 15. See also the
federal Privacy Act, R.S.C. 1985, c. P‑21, s. 22.

[20] Implicit in the Crown’s broad duty to disclose the contents of its file under Stinchcombe are not
the absence of any residual expectation of privacy, but rather the following two assumptions. The first is that the
material in possession of the prosecuting Crown is relevant to the accused’s case. Otherwise, the Crown would
not have obtained possession of it (O’Connor, at para. 12). The second assumption is that this material will
likely comprise the case against the accused. As a result, the accused’s interest in obtaining disclosure of all
relevant material in the Crown’s possession for the purpose of making full answer and defence will, as a general
rule, outweigh any residual privacy interest held by third parties in the material. These two assumptions explain
why the onus is on the Crown to justify the non-disclosure of any material in its possession.

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[21] Although the common law regime of disclosure under Stinchcombe generally strikes the
appropriate balance between the accused’s right to make full answer and defence and the residual privacy
interests of other persons in the fruits of the investigation, it is not the only regime that meets constitutional
standards. As this Court concluded in Mills, it was open to Parliament to enact, as it did, a statutory regime for
the disclosure of records containing personal information of complainants and witnesses in proceedings for
sexual offences under ss. 278.1 to 278.91 of the Criminal Code, R.S.C. 1985, c. C-46 (commonly referred to as
the “Mills regime”). Absent an express waiver from the complainant or witness to whom the record relates,
production of all records falling within the Mills regime, whether in the possession or control of a third person or
of the prosecutor in the proceedings, can only be made on application to the court and in accordance with the
balancing test set out in the Code provisions. This statutory regime therefore constitutes an exception to the
common law regime of Crown disclosure under Stinchcombe. As we shall see, the Mills regime is also different
from the common law regime for production of third party records under O’Connor. It is nonetheless
constitutional (Mills, at para. 59).

[22] The Stinchcombe regime of disclosure extends only to material in the possession or control of
the Crown. The law cannot impose an obligation on the Crown to disclose material which it does not have or
cannot obtain: R. v. Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754. A question then arises as to
whether the “Crown”, for disclosure purposes, encompasses other state authorities. The notion that all state
authorities amount to a single “Crown” entity for the purposes of disclosure and production must be quickly
rejected. It finds no support in law and, given our multi‑tiered system of governance and the realities of
Canada’s geography, is unworkable in practice. As aptly explained in R. v. Gingras (1992), 1992 CanLII 2826
(AB CA), 120 A.R. 300 (C.A.), at para. 14:

If that line of reasoning were correct, then in order to meet the tests in Stinchcombe, some months
before trial every Crown prosecutor would have to inquire of every department of the Provincial
Government and every department of the Federal Government. He would have to ask each whether
they had in their possession any records touching each prosecution upcoming. It would be
impossible to carry out 1% of that task. It would take many years to bring every case to trial if that
were required.

Accordingly, the Stinchcombe disclosure regime only extends to material relating to the accused’s case in the
possession or control of the prosecuting Crown entity. This material is commonly referred to as the “fruits of
the investigation”.

[23] Under our Canadian system of law enforcement, the general duty to investigate crime falls on
the police, not the Crown. The fruits of the investigation against an accused person, therefore, will generally
have been gathered, and any resulting criminal charge laid, by the police. While the roles of the Crown and the
police are separate and distinct, the police have a duty to participate in prosecutions: see, for example, s. 42(1)
(e) of the Ontario Police Services Act. Of particular relevance here is the police’s duty to participate in the
disclosure process. The means by which the Crown comes to be in possession of the fruits of the investigation
lies in the corollary duty of police investigators to disclose to the Crown all relevant material in their
possession. The police’s obligation to disclose all material pertaining to the investigation of an accused to the
prosecuting Crown was recognized long before Stinchcombe. The state of the law was well summed up by the
Honourable G. Arthur Martin, Q.C., in his Report of the Attorney General’s Advisory Committee on Charge
Screening, Disclosure, and Resolution Discussions (1993) (“Martin Report”), at pp. 167-68:

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It is well settled and accepted by all, including the police, that the police, although operating
independently of Crown counsel, have a duty to disclose to Crown counsel all relevant information
uncovered during the investigation of a crime, including information which assists the accused. . . .
As one commentator has observed, “the duty of the police to disclose relevant information about a
case, to the Crown, is a duty that existed before [Stinchcombe, supra]”.

[24] The corollary duty of the police to disclose to the Crown the fruits of the investigation is now
well recognized in the appellate jurisprudence. See R. v. Jack (1992), 1992 CanLII 2764 (MB CA), 70 C.C.C.
(3d) 67 (Man. C.A.), at p. 94; R. v. T. (L.A.) (1993), 1993 CanLII 3382 (ON CA), 14 O.R. (3d) 378 (C.A.), at p.
382; R. v. Gagné (1998), 1998 CanLII 12526 (QC CA), 131 C.C.C. (3d) 444 (Que. C.A.), at p. 455; and Driskell
v. Dangerfield, 2008 MBCA 60 (CanLII), [2008] 6 W.W.R. 615, at para. 17. It is also widely acknowledged that
the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force
failed to disclose it to the Crown. See R. v. MacPherson (1991), 105 N.S.R. (2d) 123 (S.C.), at paras. 37-38; R.
v. Oliver (1995), 1995 CanLII 7518 (NS SC), 143 N.S.R. (2d) 134 (S.C.), at para. 36; R. v. Campbell, [1992]
N.S.J. No. 702 (QL) (Prov. Ct.), at paras. 16-17.

[25] Even though, in this narrow sense, the police and the Crown may be viewed as one entity for
disclosure purposes, the two are unquestionably separate and independent entities, both in fact and in law.
Hence, production of criminal investigation files involving third parties, and that of police disciplinary records,
usually falls to be determined in the context of an O’Connor application. This is unsurprising because
information about third party accused or police misconduct is not likely to make its way into the Crown’s
Stinchcombe disclosure package unless such information is in some way related to the accused’s case. I will
come back to this point later in discussing the circumstances in which information about third party misconduct
should properly form part of the police disclosure package to the Crown. First, I will review the principles
governing the production of third party records under the O’Connor regime.

5. The O’Connor Regime for Production of Third Party Records

[26] In O’Connor, this Court was concerned with the manner in which the accused, who was charged
with multiple sexual offences, could obtain production of the therapeutic records of the complainants from third
party custodians. O’Connor has been overtaken by Parliament’s subsequent enactment of the Mills regime
contained in ss. 278.1 to 278.91 of the Criminal Code for the disclosure of records containing personal
information of complainants and witnesses in sexual assault proceedings. In respect of any other criminal
proceeding, however, the O’Connor application provides the accused with a mechanism for accessing third party
records that fall beyond the reach of the Stinchcombe first party disclosure regime.

[27] Stated briefly, the procedure to be followed on an O’Connor application is the following:

(1) The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code
and serves it on the third party record holder. The subpoena compels the person to whom it is
directed to attend court with the targeted records or materials.

(2) The accused also brings an application, supported by appropriate affidavit evidence, showing that
the records sought are likely to be relevant in his or her trial. Notice of the application is given to
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the prosecuting Crown, the person who is the subject of the records and any other person who may
have a privacy interest in the records targeted for production.

(3) The O’Connor application is brought before the judge seized with the trial, although it may be heard
before the trial commences. If production is unopposed, of course, the application for production
becomes moot and there is no need for a hearing.

(4) If the record holder or some other interested person advances a well-founded claim that the targeted
documents are privileged, in all but the rarest cases where the accused’s innocence is at stake, the
existence of privilege will effectively bar the accused’s application for production of the targeted
documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset
of the O’Connor process.

(5) Where privilege is not in question, the judge determines whether production should be compelled in
accordance with the two-stage test established in O’Connor. At the first stage, if satisfied that the
record is likely relevant to the proceeding against the accused, the judge may order production of the
record for the court’s inspection. At the next stage, with the records in hand, the judge determines
whether, and to what extent, production should be ordered to the accused.

The question of privilege is beyond the scope of this appeal. However, I will elaborate on each stage of the
O’Connor test for production of third party records in turn.

5.1 First Stage: Screening for Likely Relevance

5.1.1 Burden Is on the Applicant

[28] The first step in any contested application for production of non-privileged documents in the
possession of a third party is for the person seeking production — in this case the accused — to satisfy the court
that the documents are likely relevant to the proceedings. This threshold burden simply reflects the fact that the
context in which third party records are sought is different from the context of first party disclosure. We have
already seen that the presumptive duty on Crown counsel to disclose the fruits of the investigation in their
possession under Stinchcombe is premised on the assumptions that the information is relevant and that it will
likely comprise the case against the accused. No such assumptions can be made in respect of documents in the
hands of a third party who is a stranger to the litigation. The applicant must therefore justify to the court the use
of state power to compel their production — hence the initial onus on the person seeking production to show
“likely relevance”. In addition, it is important for the effective administration of justice that criminal trials
remain focussed on the issues to be tried and that scarce judicial resources not be squandered in “fishing
expeditions” for irrelevant evidence. The likely relevance threshold reflects this gate-keeper function.

5.1.2 Burden on Applicant Is Significant but not Onerous

[29] It is important to repeat here, as this Court emphasized in O’Connor, that while the likely
relevance threshold is “a significant burden, it should not be interpreted as an onerous burden upon the accused”
(para. 24). On the one hand, the likely relevance threshold is “significant” because the court must play a
meaningful role in screening applications “to prevent the defence from engaging in ‘speculative, fanciful,
disruptive, unmeritorious, obstructive and time-consuming’ requests for production” (O’Connor, at para. 24,
quoting from R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, at para. 32). The importance of
preventing unnecessary applications for production from consuming scarce judicial resources cannot be
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overstated; however, the undue protraction of criminal proceedings remains a pressing concern, more than a
decade after O’Connor. On the other hand, the relevance threshold should not, and indeed cannot, be an
onerous test to meet because accused persons cannot be required, as a condition to accessing information that
may assist in making full answer and defence, “to demonstrate the specific use to which they might put
information which they have not even seen” (O’Connor, at para. 25, quoting from R. v. Durette, 1994 CanLII
123 (SCC), [1994] 1 S.C.R. 469, at p. 499).

5.1.3 O’Connor Common Law Threshold Is Significantly Different From Mills Statutory Regime

[30] It is important to note that the common law likely relevance threshold in O’Connor differs
significantly from the statutory likely relevance threshold set by Parliament for the production of records
containing personal information in sexual assault proceedings under the Mills regime (see s. 278.3(4) of the
Criminal Code). As this Court explained at some length in Mills, a range of permissible regimes can meet
constitutional standards. It was therefore open to Parliament to craft its own solution to address the particular
concerns arising from disclosure of third party records in sexual proceedings. In doing so, Parliament “sought to
recognize the prevalence of sexual violence against women and children and its disadvantageous impact on their
rights, . . . and to reconcile fairness to complainants with the rights of the accused” (Mills, at para. 59). The
following differences between the two regimes are particularly noteworthy.

[31] First, the likely relevance standard adopted by Parliament under the Mills regime is tailored to
counter speculative myths, stereotypes and generalized assumptions about sexual assault victims and about the
usefulness of private records in sexual assault proceedings. Such generalized views need not be countered at
large in respect of all third party records that fall outside the Mills regime. The general common law threshold
of likely relevance under O’Connor is intended rather to screen applications to ensure the proper use of state
authority in compelling production of third party records and to establish the appropriateness of the application
so as to avoid squandering scarce judicial resources.

[32] Second, while the Mills regime retains the two-stage framework set out in O’Connor, it differs
significantly in that much of the balancing of the competing interests is effected at the first stage in determining
whether production should be made to the court for inspection. This reflects Parliament’s assumption that a
reasonable expectation of privacy exists in the types of records targeted by the statutory regime: see R. v.
Clifford (2002), 2002 CanLII 14471 (ON CA), 163 C.C.C. (3d) 3 (Ont. C.A.), at paras. 48-49. An equivalent
presumption of privacy does not attach in respect of all third party records that fall outside the Mills regime.
Hence, any balancing of competing interests is reserved for the second stage of the O’Connor regime, when the
documents can be inspected by the court to better ascertain the nature of the privacy interest, if any. Because of
these significant differences, it is important not to transpose the Mills regime into the O’Connor production
hearing in respect of documents to which the statutory dispositions do not apply.

5.1.4 Likely Relevance Under the Common Law Regime

[33] “Likely relevant” under the common law O’Connor regime means that there is “a reasonable
possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”
(O’Connor, at para. 22 (emphasis deleted)). An “issue at trial” here includes not only material issues concerning
the unfolding of the events which form the subject matter of the proceedings, but also “evidence relating to the
credibility of witnesses and to the reliability of other evidence in the case” (O’Connor, at para. 22). At this stage
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of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted
documents could be used at trial. The imposition of such a stringent threshold burden would put the accused,
who has not seen the documents, in an impossible Catch-22 position.

5.2 Second Stage: Balancing the Interests at Play

[34] If likely relevance is demonstrated by the applicant, the third party record holder may be
ordered to produce the documents for inspection by the court in order to determine whether production should be
ordered to the accused.

[35] In O’Connor, this Court provided the following list of factors for consideration in determining
whether or not to order production to the accused (at para. 31):

. . . “(1) the extent to which the record is necessary for the accused to make full answer and
defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable
expectation of privacy vested in that record; (4) whether production of the record would be premised
upon any discriminatory belief or bias” and “(5) the potential prejudice to the complainant’s dignity,
privacy or security of the person that would be occasioned by production of the record in question” .
...

The factors set out in O’Connor should not be applied mechanically. It should be kept in mind that O’Connor
involved the production of the complainant’s private records in proceedings for a sexual offence, an area of law
subsequently overtaken by Parliament’s enactment of the Mills regime. Some of the factors listed in O’Connor,
in particular items 4 and 5 above, were obviously tailored to meet the exigencies in sexual assault proceedings
and, consequently, are unlikely to be of assistance in other contexts. Ultimately, what is required at this second
stage of the common law regime is a balancing of the competing interests at stake in the particular circumstances
of the case. No exhaustive list can be crafted to suit every situation; however, I will elaborate somewhat on the
balancing process.

5.2.1 A Useful Starting Point: Assessing True Relevance

[36] As we have seen, by the time the court embarks on the second stage of an O’Connor hearing,
the application has been screened for likely relevance and the judge is satisfied that compelling the production of
the documents for inspection by the court is warranted in the circumstances. Once the documents are before the
court, the final question to be determined is whether production should be made to the accused.

[37] The amicus curiae submits that the starting point for determining whether to order production to
the accused of documents in the hands of third parties, including, as in this case, Crown briefs, police briefs and
police disciplinary files, requires a determination of the nature of the records to define the existence or absence
of a reasonable expectation of privacy (factum, at para. 19). There is some merit to the proposal of looking first
at whether there is any expectation of privacy in the targeted records. Indeed, if it is clear upon inspection of the
documents and their contents that there is no basis upon which the third party record holder or any other
interested person could claim a reasonable privacy interest, there is no balancing of interests left to perform.
Given that likely relevance has by this point been established, the sole remaining interest at stake is the
accused’s right to make full answer and defence. A production order should therefore issue. It is in this sense
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that the Court of Appeal’s finding in the present case, that an “O’Connor-type procedure” is only required in
cases where the third party records attract a reasonable expectation of privacy, must be understood.

[38] The difficulty with this approach, however, is that it is largely premised on the conclusion that
the existence of a reasonable expectation of privacy may be determined solely by characterizing the type of
record at issue. While this may be possible in respect of some records, determining whether an expectation of
privacy attaches to a particular record usually requires a more contextual approach. As we have seen, even in
the context of the Crown’s Stinchcombe obligation of disclosure, there exists no presumption that all
expectations of privacy are lost just because a record has found its way into the prosecuting Crown’s file.

[39] The amicus curiae submits, and I agree, that determining the existence of a reasonable
expectation of privacy requires a contextual assessment having regard to numerous factors, including but not
limited to: how the record was created; who created the record; the purpose of the record; the context of the case
in which the record would be used; who holds the privacy interest; how the record was obtained by the Crown or
police; the presence or absence of waiver; any applicable legislation; and whether the privacy interest extends to
all or part of the record. As one can readily appreciate from this non-exhaustive list, determining whether there
is any residual expectation of privacy in a document may be a complex and time-consuming exercise that has the
potential to significantly delay and detract from the actual proceeding before the court — the trial of the
accused. For that reason, it is my view that in most cases, a more useful starting point for courts in balancing
competing interests at the second stage of an O’Connor application will be to assess the true relevancy of the
targeted record in the case against the accused. This approach allows the court to remain focussed on the trial of
the accused and, given the competing interests at stake, the relevancy assessment will usually be largely
determinative of the production issue. I will explain.

[40] On the one hand, because the accused will not have seen the documents that he or she seeks to
have produced, it may be readily apparent upon inspection by the court that the claim of likely relevance
established at the first stage of the O’Connor application is simply not borne out. If the court is satisfied that the
documents are clearly irrelevant, there is no basis for compelling production to the accused, and the application
can be summarily dismissed.

[41] On the other hand, if the claim of likely relevance is borne out upon inspection, the accused’s
right to make full answer and defence will, with few exceptions, tip the balance in favour of allowing the
application for production. Recall that at this stage of the proceedings, the court has confirmed that the
production application concerns non-privileged documents. The existence of any privacy interest in third party
records relevant to an accused’s defence of a criminal charge may well warrant, in appropriate circumstances,
some redactions or the imposition of conditions to ensure that no unnecessary invasion of privacy follows from
production to the accused. However, absent an overriding statutory regime governing the production of the
record in question, a third party privacy interest is unlikely to defeat an application for production.

[42] Once a court has ascertained upon inspection that third party records are indeed relevant to the
accused’s case, in the sense that they pertain to an issue in the trial as described above, the second stage
balancing exercise is easily performed. In effect, a finding of true relevance puts the third party records in the
same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the
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prosecuting Crown under Stinchcombe. It may be useful to pose the question in this way: If the third party
record in question had found its way into the Crown prosecutor’s file, would there be any basis under the first
party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no,
there can be no principled reason to arrive at a different outcome on the third party production application. As
we have seen, the Crown’s obligation under Stinchcombe to disclose to the accused the fruits of the investigation
in its possession does not signify that no residual privacy interest exists in the contents of the file. However, it
does mean that, with few exceptions (including the Mills statutory scheme), the accused’s right to access
information necessary to make full answer and defence will outweigh any competing privacy interest. The same
applies with respect to relevant material in the hands of third parties. This is particularly so in respect of
criminal investigation files concerning third party accused. As Professor Paciocco aptly puts it:

. . . it would be perverse to hold that investigative information is not private enough to impose any
constraints on the ability of the police to gather it and the Crown to use it to seek the conviction of
the target of that investigation, yet that same information is protected by privacy interests when it
contains relevant information that would help someone defend himself.

(David M. Paciocco, “Filling the Seam between Stinchcombe and O’Connor: The ‘McNeil’
Disclosure Application” (2007), 53 Crim. L.Q. 161, at pp. 199-200)

5.2.2 Guarding Against Unnecessary Intrusions Into Privacy Interests

[43] That is not to say, however, that residual privacy interests in the contents of criminal
investigation files should be disregarded. As concluded in the Martin Report, at p. 181 (reference in Attorney
General of Ontario’s factum, at para. 24):

The privacy of the victim and any other witnesses must yield to preparing a full answer and
defence. But it need not yield any further. The Committee considers that, provided the making of
full answer and defence is not impaired, it is desirable to permit limitations on the use of disclosure
materials that recognize the privacy interests of victims and witnesses.

[44] The same applies in respect of police disciplinary records, or any other third party records. The
court should ensure that a production order is properly tailored to meet the exigencies of the case but do no
more. As we have seen, likely relevance for disclosure purposes has a wide and generous connotation and
includes information in respect of which there is a reasonable possibility that it may assist the accused in the
exercise of the right to make full answer and defence. In considering the ambit of the information that can assist
in the trial, regard must be given to the particular issues in the case and to the governing rules of evidence and
procedure. This does not mean that only material that would be admissible at trial should be produced. Material
that would not, on its own, be admissible may nonetheless be of use to the defence, for example, in cross-
examining a witness on matters of credibility or in pursuing other avenues of investigation. An O’Connor
application must, however, lay a foundation for the relevance of the material sought, having regard to the issues
in the case. In large part, this is the reason why such applications should be brought before the judge seized with
the trial. Doing so allows production issues to be effectively disposed of by the judge and counsel who are
sufficiently appraised of the issues in the case. Of course, production applications can be heard prior to the
commencement of the trial, and the judge, when appropriate to do so, may enlist the assistance of counsel in
determining the relevance of a particular record for the purposes of production.

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[45] Ascertaining the true relevancy of records targeted for production may become particularly
important when the information on the production application concerns police disciplinary records. The
contentious nature of police work often leads to public complaints, some legitimate and others spurious. Police
disciplinary proceedings may also relate to employment issues or other matters that have no bearing on the case
against the accused. The risk in this context is that disclosure, and by extension trial proceedings, may be
sidetracked by irrelevant allegations or findings of police misconduct. Disclosure is intended to assist an
accused in making full answer and defence or in prosecuting an appeal, not turn criminal trials into a
conglomeration of satellite hearings on collateral matters.

[46] Hence, to ensure that only relevant material is produced and that no unwarranted invasion of
privacy interests occurs, the court may find it necessary to make a production order subject to redactions or
other conditions. In addition, when just and appropriate to do so, the court may well impose restrictions on the
dissemination of the information produced for purposes unrelated to the accused’s full answer and defence or
prosecution of an appeal: see, for example, recommendations 34 and 35 in the Martin Report (at p. 179) and P.
(D.) v. Wagg (2004), 2004 CanLII 39048 (ON CA), 239 D.L.R. (4th) 501 (Ont. C.A.), at para. 46. Absent
unusual circumstances, however, the crafting of a production order should not necessitate any detailed inquiry
into the precise nature or extent of the privacy interest in question. The O’Connor hearing should remain
focussed on the criminal proceeding at hand.

6. Bridging the Gap Between First Party Disclosure and Third Party Production

[47] As the preceding discussion makes clear, once the true relevance of the targeted records has
been ascertained on an O’Connor application for production of third party records, the ultimate question of
production is essentially governed by the same principles that apply to the disclosure of material in the
possession of the Crown under Stinchcombe. To the accused, however, the distinction between these two
regimes is significant. While the accused will receive automatic disclosure of relevant material that finds its
way into the hands of the prosecuting Crown, accessing relevant material in the hands of third parties will often
be more happenstance. To a certain extent, that is inevitable. Third parties are under no obligation to come forth
with relevant information to assist the accused in his defence. However, the prosecuting Crown and the
investigating police force are in a different position and can assist in bridging the gap between first party
disclosure and third party production. I will deal firstly with the Crown.

6.1 Crown Counsel’s Duty to Inquire

[48] As stated earlier, the suggestion that all state authorities constitute a single entity is untenable
and unworkable. In order to fulfill its Stinchcombe disclosure obligation, the prosecuting Crown does not have
to inquire of every department of the provincial government, every department of the federal government and
every police force whether they are in possession of material relevant to the accused’s case. However, this does
not mean that, regardless of the circumstances, the Crown is simply a passive recipient of relevant information
with no obligation of its own to seek out and obtain relevant material.

[49] The Crown is not an ordinary litigant. As a minister of justice, the Crown’s undivided loyalty is
to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant
information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not
be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further
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and obtaining the information if it is reasonably feasible to do so. Ryan J.A. in R. v. Arsenault (1994), 1994
CanLII 5244 (NB CA), 153 N.B.R. (2d) 81 (C.A.), aptly described the Crown’s obligation to make reasonable
inquiries of other Crown agencies or departments. He stated as follows:

When disclosure is demanded or requested, Crown counsel have a duty to make reasonable inquiries
of other Crown agencies or departments that could reasonably be considered to be in possession of
evidence. Counsel cannot be excused for any failure to make reasonable inquiries when to the
knowledge of the prosecutor or the police there has been another Crown agency involved in the
investigation. Relevancy cannot be left to be determined by the uninitiated. If Crown counsel is
denied access to another agency’s file, then this should be disclosed to the defence so that the
defence may pursue whatever course is deemed to be in the best interests of the accused. This also
applies to cases where the accused or defendant, as the case may be, is unrepresented . . . . [para. 15]

[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), 2000
CanLII 17011 (ON CA), 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.

6.2 The Police’s Corollary Duty to Disclose Relevant Information

[52] We have already seen that the police have a corollary duty to disclose to the prosecuting Crown
all material pertaining to the investigation of an accused. This disclosure obligation accords with police codes of
conduct enacted in many jurisdictions across the country. For example, under s. 2(1)(c)(vi) of the Code of
Conduct found in O. Reg. 123/98, Sch., enacted pursuant to the Ontario Police Services Act, a police chief or
other police officer commits neglect of duty if he or she “fails to report anything that he or she knows
concerning a criminal or other charge, or fails to disclose any evidence that he or she, or any person within his or
her knowledge, can give for or against any prisoner or defendant”. See also Code of Professional Conduct
Regulation, B.C. Reg. 205/98, s. 5(e); Police Service Regulation, Alta. Reg. 356/90, s. 5(2)(h)(vii); Code of

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ethics of Québec police officers, (1990) 122 G.O. II, 1760, s. 7(2); and Code of Professional Conduct Regulation
— Police Act, N.B. Reg. 2007‑81, s. 36(1)(d)(iii).

[53] While the obligation itself is firmly established, the difficulty lies in identifying the contours of
relevance for the purposes of the police’s first party disclosure obligation. The particular question that this case
exemplifies is whether information of misconduct by a police officer involved in the case against the accused
should form part of the first party disclosure package provided to the Crown for its assessment of relevance
according to the edicts of Stinchcombe. Obviously, the accused has no right to automatic disclosure of every
aspect of a police officer’s employment history, or to police disciplinary matters with no realistic bearing on the
case against him or her. However, where the disciplinary information is relevant, it should form part of the first
party disclosure package, and its discovery should not be left to happenstance.

[54] When the police misconduct in question concerns the same incident that forms the subject-
matter of the charge against the accused, the police duty to disclose information concerning police disciplinary
action taken in respect of that misconduct is rather self-evident. To state an obvious example, if a police officer
is charged under the applicable provincial legislation for excessive use of force in relation to the accused’s arrest,
this information must be disclosed to the Crown. Where the misconduct of a police witness is not directly
related to the investigation against the accused, it may nonetheless be relevant to the accused’s case, in which
case it should also be disclosed. For example, no one would question that the criminal record for perjury of a
civilian material witness would be of relevance to the accused and should form part of the first party disclosure
package. In the same way, findings of police misconduct by a police officer involved in the case against the
accused that may have a bearing on the case against an accused should be disclosed.

[55] The need for guidance in this area prompted a review commissioned by the Chief of the Toronto
Police Service. The review was conducted by the Honourable George Ferguson, Q.C., and culminated in his
January 2003 report entitled Review and Recommendations Concerning Various Aspects of Police Misconduct,
vol. I (the “Ferguson Report”). The terms of reference included the mandate to review “when, in what manner
and under what circumstances does the Police Service have an obligation to bring to the attention of the Crown,
alleged or proven acts of misconduct of a police officer who will be a witness or was otherwise involved in an
investigation that has led to a criminal proceeding” (p. 1).

[56] The Ferguson Report noted that the question of disclosure of such information was usually left
to be determined in the context of an O’Connor application for third party production and that this often gave
rise to a “Catch-22” problem, stating as follows (at p. 12):

Once into O’Connor, it is difficult, if not impossible, for the defence to meet the threshold required
to access the records. Unless the officer is notorious or the defence personally knows details of the
officer’s files, the defence will be found to be on nothing more than a fishing expedition and access
will be denied. A diligent officer‑in‑charge will not likely know the full employment history of each
police witness, and, currently, is not required to make any inquiries. Short of a criminal conviction
for dishonesty, nothing is likely to be provided to the Crown for disclosure analysis. Even
convictions for dishonesty may not always be revealed. This is clearly unsatisfactory.

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[57] The Ferguson Report concluded that leaving the entire question of access to police disciplinary
records to be determined under the O’Connor regime for third party production “is neither efficient nor justified”
(p. 15). In order to assist in bridging the gap between first party disclosure and third party production, the
Ferguson Report made a number of recommendations, including the automatic disclosure by the police upon
request by the Crown of the following information regarding acts of misconduct by a member of the Toronto
Police Service who may be a witness or who was otherwise involved in a case before the court (at p. 17):

a. Any conviction or finding of guil[t] under the Canadian Criminal Code or under the Controlled
Drugs and Substances Act [for which a pardon has not been granted].

b. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and
Substances Act.

c. Any conviction or finding of guilt under any other federal or provincial statute.

d. Any finding of guilt for misconduct after a hearing under the Police Services Act or its
predecessor Act.

e. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing
has been issued.

[58] The Ferguson Report recommended that upon receiving this information from police, the Crown
act as “gate-keeper”, sorting out what parts of this material, if any, should be turned over to the defence in
compliance with the Crown’s Stinchcombe obligation of disclosure. The Ferguson Report made the further
recommendation that any concerned officer who was the subject of disciplinary records produced to the Crown
be notified in writing and be given the opportunity to make submissions to the Crown.

[59] I agree that it is “neither efficient nor justified” to leave the entire question of access to police
misconduct records to be determined in the context of the O’Connor regime for third party production. Indeed,
as discussed earlier, the disclosure of relevant material, whether it be for or against an accused, is part of the
police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the
accused’s case, it should form part of the first party disclosure package to the Crown without prompting. For
example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it
becomes incumbent upon the police force, in fulfilment of its corollary duty of disclosure to the Crown, to look
into those criminal cases in which the officer is involved and to take appropriate action. Of course, not every
finding of police misconduct by an officer involved in the investigation will be of relevance to an accused’s
case. The officer may have played a peripheral role in the investigation, or the misconduct in question may have
no realistic bearing on the credibility or reliability of the officer’s evidence. The kinds of information listed in
the Ferguson Report can provide useful guidance on those types of matters in respect of which a police force
may well be advised to seek the advice of Crown counsel.

[60] With respect to records concerning police disciplinary matters that do not fall within the scope
of first party disclosure obligations, procedures such as those recommended in the Ferguson Report, tailored to
suit the particular needs of the community in which they are implemented, can go a long way towards ensuring a
more efficient streamlining of O’Connor applications for third party production. Trial courts seized with
motions for disclosure under Stinchcombe or applications for third party production are well placed to make
appropriate orders to foster the necessary cooperation between police, the Crown and defence counsel.

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7. Disposition

[61] The appeal is allowed and the order in the court below is set aside. The application having
become moot, the Court makes no further order.

Appeal allowed.

Solicitor for the appellant: Attorney General of Ontario, Toronto.

Solicitor for the respondent Her Majesty the Queen: Public Prosecution Service of Canada, Halifax.

Solicitors for the respondent the Chief of Barrie Police Service, 3rd Party Record Holder: Caswell
& Watson, Toronto.

Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta,
Edmonton.

Solicitor for the intervener Matthew Marshall: Gary R. Clewley, Toronto.

Solicitors for the intervener the Police Association of Ontario: Paliare Roland Rosenberg Rothstein,
Toronto.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): McCarthy Tétrault,
Toronto.

Solicitors for the amicus curiae: Henein & Associates, Toronto.

* Bastarache J. took no part in the judgment.

Federation of Law Societies of Canada

By for the law societies members of the

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 142

R. v. O'Connor

[1995] 4 SCR 411, 1995 CanLII 51 (SCC)

1/6/2019 CanLII - 1995 CanLII 51 (SCC) 143

R. v. O'Connor, [1995] 4 SCR 411, 1995 CanLII 51 (SCC)

Date: 1995-12-14
File 24114
number:
Other 130 DLR (4th) 235; 191 NR 1; [1996] 2 WWR 153; 103 CCC (3d) 1; 44 CR (4th) 1; 68 BCAC 1; 33 CRR (2d) 1;
citations: AZ-96111001; [1995] CarswellBC 1098; EYB 1995-67073; JE 96-64; [1995] SCJ No 98 (QL); 112 WAC 1;
[1995] ACS no 98; 29 WCB (2d) 152
Citation: R. v. O'Connor, [1995] 4 SCR 411, 1995 CanLII 51 (SCC), <http://canlii.ca/t/1frdh>, retrieved on 2019-01-06

R. v. O'Connor, [1995] 4 S.C.R. 411

Hubert Patrick O'Connor Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada, the Attorney

General for Ontario, the Aboriginal Women's
Council, the Canadian Association of Sexual
Assault Centres, the DisAbled Women's Network
of Canada, the Women's Legal Education and Action
Fund, the Canadian Mental Health Association and the
Canadian Foundation for Children, Youth and the Law Interveners

Indexed as: R. v. O'Connor

File No.: 24114.

1995: February 1; 1995: December 14.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and
Major JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Evidence ‑‑ Disclosure ‑‑ Accused charged with sexual offences ‑‑ Defence counsel
obtaining pre‑trial order requiring Crown to disclose complainants' entire medical, counselling and school
records ‑‑ Trial judge ordering stay of proceedings owing to non‑disclosure and late disclosure by Crown ‑‑

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Court of Appeal allowing Crown's appeal and ordering new trial ‑‑ Whether stay of proceedings appropriate
remedy for non‑disclosure by Crown of information in its possession.

Criminal law ‑‑ Evidence ‑‑ Medical and counselling records ‑‑ Procedure to be followed where
accused seeks production of records in hands of third parties.

The accused was charged with a number of sexual offences. Defence counsel obtained a pre‑trial
order requiring that the Crown disclose the complainants' entire medical, counselling and school records and that
the complainants authorize production of such records. The Crown applied to a different judge for directions
regarding the disclosure order and for the early appointment of a trial judge. After a trial judge had been
appointed, the Crown again sought directions regarding the disclosure order. By this time many of the impugned
records had come into its possession. The trial judge made it clear that he was to be provided promptly with
therapy records relating to all four complainants. The accused later applied for a judicial stay of proceedings
based on non‑disclosure of several items. Crown counsel submitted that the two Crown prosecutors were
handling the case from different cities, and that there were difficulties concerning communication and
organization. She asserted that the non‑disclosure of some of the medical records was due to inadvertence on
her part, and that she had "dreamt" the transcripts of certain interviews had been disclosed. She submitted that
uninhibited disclosure of medical and therapeutic records would revictimize the victims, and suggested that the
disclosure order exhibited gender bias. The trial judge dismissed the application for a stay, finding that the
failure to disclose certain medical records had been an oversight. He noted, however, that the letters written by
Crown counsel to the counsellors had unacceptably limited the scope of the disclosure to only those portions of
the records which related directly to the incidents involving the accused. This resulted in the full therapy records
not being disclosed to the defence until just before the trial. He concluded that while the conduct of the Crown
was "disturbing", he did not believe that there was a "grand design" to conceal evidence, nor any "deliberate plan
to subvert justice". In light of the difficulties encountered during discovery, Crown counsel then agreed to waive
any privilege with respect to the contents of the Crown's file and to prepare a binder in relation to each of the
complainants containing all information in the Crown's possession relating to each of them. On the second day
of the trial, counsel for the accused made another application for a judicial stay of proceedings based largely on
the fact that the Crown was still unable to guarantee to the accused that full disclosure had been made. The trial
judge stayed proceedings on all four counts. He noted the constant intervention required by the court to ensure
full compliance with the disclosure order and found that the Crown's earlier conduct had created "an aura" that
had pervaded and ultimately destroyed the case. The Court of Appeal allowed the Crown's appeal and directed a
new trial. This appeal raises the issues of (1) when non‑disclosure by the Crown justifies an order that the
proceedings be stayed and (2) the appropriate procedure to be followed when an accused seeks production of
documents such as medical or therapeutic records that are in the hands of third parties.

Held (Lamer C.J. and Sopinka and Major JJ. dissenting): The appeal should be dismissed.

(1) Stay of Proceedings

Per La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ.: There is no need to maintain any type
of distinction between the common law doctrine of abuse of process and Charter requirements regarding abusive
conduct. Where an accused seeks to establish that non-disclosure by the Crown has violated s. 7, he or she must
establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse
effect on his or her ability to make full answer and defence. Such a determination requires reasonable inquiry
into the materiality of the non‑disclosed information. Inferences or conclusions about the propriety of the
Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is
infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the trial. Once a
violation is made out, the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Where the
adverse impact upon the accused's ability to make full answer and defence is curable by a disclosure order, then
such a remedy, combined with an adjournment where necessary to enable defence counsel to review the
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disclosed information, will generally be appropriate. There may, however, be exceptional situations where,
given the advanced state of the proceedings, it is simply not possible to remedy the prejudice. In those "clearest
of cases", a stay of proceedings will be appropriate. When choosing a remedy for a non-disclosure that has
violated s. 7, the court should also consider whether the Crown's breach of its disclosure obligations has violated
fundamental principles underlying the community's sense of decency and fair play and thereby caused prejudice
to the integrity of the judicial system. If so, it should be asked whether this prejudice is remediable, having
regard to the seriousness of the violation and to the societal and individual interests in obtaining a determination
of guilt or innocence.

While the Crown's conduct in this case was shoddy and inappropriate, the non‑disclosure cannot be
said to have violated the accused's right to full answer and defence. The whole issue of disclosure in this case
arose out of the order requiring that the Crown "disclose" records in the hands of third parties and that the
complainants authorize production of such records. This order was issued without any form of inquiry into their
relevance, let alone a balancing of the privacy rights of the complainants and the accused's right to a fair trial,
and was thus wrong. The Crown was ultimately right in trying to protect the interests of justice, and the fact that
it did so in such a clumsy way should not result in a stay of proceedings, particularly when no prejudice was
demonstrated to the fairness of the accused's trial or to his ability to make full answer and defence. Even had a
violation of s. 7 been found, this cannot be said to be one of the "clearest of cases" which would mandate a stay
of proceedings.

Per Cory and Iacobucci JJ.: While the actions of Crown counsel originally responsible for the
prosecution of this case were extremely high‑handed and thoroughly reprehensible, the Crown's misdeeds were
not such that, upon a consideration of all the circumstances, the drastic remedy of a stay was merited.

Per Lamer C.J. and Sopinka and Major JJ. (dissenting on this issue): A stay of proceedings was
appropriate here. The Crown's conduct impaired the accused's ability to make full answer and defence. The
impropriety of the disclosure order if any does not excuse the Crown's failure to comply with it until
immediately before the trial. The Crown never took proper action regarding the objections it had. If it could not
appeal the order it should have returned to the issuing judge to request variation or rescission. The letters from
the Crown prosecutor to the therapists narrowed the scope of the order. As soon as the order was clarified for
the therapists, complete records were disclosed, suggesting that had the letters contained an accurate description
of the order, compliance would have occurred at a much earlier time. The Crown also breached its general duty
to disclose all relevant information. Each time disclosure was made in this case it was the result of the defence
having to raise the matter in court. The conduct of the Crown was such that trust was lost, first by the defence,
and finally by the trial judge. It is of little consequence that a considerable amount of the non‑disclosed material
was ultimately released piecemeal to the defence prior to the trial. The effect of continual discovery of more
non‑disclosed evidence, coupled with the Crown's admission that disclosure was possibly incomplete, created an
atmosphere in which the defence's ability to prepare was impaired. The Crown's delay in making disclosure and
its inability to assure the trial judge that full disclosure had been made even after commencement of the trial
were fatal to the proceedings. The continual breaches by the Crown made a stay the appropriate remedy.
Proceedings had become unworkable and unfair. Remedies under s. 24(1) of the Charter are properly in the
discretion of the trial judge. This discretion should not be interfered with unless the decision was clearly
unreasonable.

The same breaches of the disclosure order, the general duty of disclosure and the undertaking to
disclose files to the defence which impaired the accused's right to make full answer and defence also violated
fundamental principles of justice underlying the community's sense of fair play and decency. The trial judge
showed admirable tolerance for the behaviour of the Crown but in the end had no choice but to order a stay.
When a criminal trial gains notoriety because of the nature of the offence, the parties charged or any other
reason, there is an added burden in the paramount interest of ensuring fairness in the process. In this case, the
fact that the offences alleged were many years in the past and that the accused had a high profile in the
community called for a careful prosecution to ensure fairness and the maintenance of integrity in the process.
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The conduct of the Crown during the time the trial judge was involved, as well as in the months before his
appointment, was negligent, incompetent and unfair. The trial judge was in the best position to observe the
conduct of the Crown and its effect on the proceedings. He found that the trial had become so tainted that it
violated fundamental principles underlying the community's sense of fair play and decency and that the accused
was impaired in his ability to make full answer and defence.

(2) Production of Records in the Possession of the Crown

Per Lamer C.J. and Sopinka J.: The Crown's disclosure obligations established in Stinchcombe are
unaffected by the confidential nature of therapeutic records when the records are in the possession of the
Crown. The complainant's privacy interests in therapeutic records need not be balanced against the right of the
accused to make full answer and defence in the context of disclosure, since concerns relating to privacy or
privilege disappear where the documents in question have fallen into the Crown's possession. The complainant's
lack of a privacy interest in records that are possessed by the Crown counsels against a finding of privilege in
such records. Fairness must require that if the complainant is willing to release this information in order to
further the criminal prosecution, then the accused should be entitled to use the information in the preparation of
his or her defence. Moreover, any form of privilege may be forced to yield where such a privilege would
preclude the accused's right to make full answer and defence. Information in the possession of the Crown which
is clearly relevant and important to the ability of the accused to raise a defence must be disclosed to the accused,
regardless of any potential claim of privilege that might arise. While the mere existence of therapeutic records is
insufficient to establish the relevance of those records to the defence, their relevance must be presumed where
the records are in the Crown's possession.

Per Cory and Iacobucci JJ.: The principles set out in the Stinchcombe decision, affirmed in Egger,
pertaining to the Crown's duty to disclose must apply to therapeutic records in the Crown's possession, as found
by Lamer C.J. and Sopinka J.

Per Major J.: The Crown's disclosure obligations established in Stinchcombe are unaffected by the
confidential nature of therapeutic records in its possession, as found by Lamer C.J. and Sopinka J.

Per La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ.: This appeal does not concern the
extent of the Crown's obligation to disclose private records in its possession, or the question whether privacy and
equality interests may militate against such disclosure by the Crown. These issues do not arise in this appeal and
were not argued before the Court. Any comment on these questions would be strictly obiter.

(3) Production of Records in the Possession of Third Parties

Per Lamer C.J. and Sopinka J.: When the defence seeks information in the hands of a third party (as
compared to the state), the onus should be on the accused to satisfy a judge that the information is likely to be
relevant. In order to initiate the production procedure, the accused must bring a formal written application
supported by an affidavit setting out the specific grounds for production. However, the court should be able, in
the interests of justice, to waive the need for a formal application in some cases. In either event, notice must be
given to third parties in possession of the documents as well as to those persons who have a privacy interest in
the records. The accused must also ensure that the custodian and the records are subpoenaed to ensure their
attendance in the court. The initial application for disclosure should be made to the judge seized of the trial, but
may be brought before the trial judge prior to the empanelling of the jury, at the same time that other motions are
heard. In the disclosure context, the meaning of "relevance" is expressed in terms of whether the information
may be useful to the defence. In the context of production, the test of relevance should be higher: the presiding
judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue
at trial or the competence of a witness to testify. While "likely relevance" is the appropriate threshold for the
first stage of the two‑step procedure, it should not be interpreted as an onerous burden upon the accused. A
relevance threshold, at this stage, is simply a requirement to prevent the defence from engaging in speculative,
fanciful, disruptive, unmeritorious, obstructive and time‑consuming requests for production.
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Upon their production to the court, the judge should examine the records to determine whether, and
to what extent, they should be produced to the accused. In making that determination, the judge must examine
and weigh the salutary and deleterious effects of a production order and determine whether a non‑production
order would constitute a reasonable limit on the ability of the accused to make full answer and defence. In
balancing the competing rights in question, the following factors should be considered: (1) the extent to which
the record is necessary for the accused to make full answer and defence; (2) the probative value of the record;
(3) the nature and extent of the reasonable expectation of privacy vested in the record; (4) whether production of
the record would be premised upon any discriminatory belief or bias; and (5) the potential prejudice to the
complainant's dignity, privacy or security of the person that would be occasioned by production of the record.
The effect on the integrity of the trial process of producing, or failing to produce, the record, having in mind the
need to maintain consideration in the outcome, is more appropriately dealt with at the admissibility stage and not
in deciding whether the information should be produced. As for society's interest in the reporting of sexual
crimes, there are other avenues available to the judge to ensure that production does not frustrate the societal
interests that may be implicated by the production of the records to the defence. In applying these factors, it is
also appropriate to bear in mind that production of third party records is always available to the Crown provided
it can obtain a search warrant.

Per Cory and Iacobucci JJ.: The procedure suggested by Lamer C.J. and Sopinka J. for determining
whether records in the possession of third parties are likely to be relevant was agreed with, as were their reasons
pertaining to the nature of the onus resting upon the accused and the nature of the balancing process which must
be undertaken by the trial judge.

Per Major J.: The substantive law and the procedure recommended by Lamer C.J. and Sopinka J. in
obtaining therapeutic records from third persons were agreed with.

Per La Forest, L'Heureux‑Dubé and Gonthier JJ. (dissenting on this issue): Private records, or
records in which a reasonable expectation of privacy lies, may include medical or therapeutic records, school
records, private diaries and social worker activity logs. An order for production of private records held by third
parties does not arise as a remedy under s. 24(1) of the Charter since, at the moment of the request for
production, the accused's rights under the Charter have not been violated. Nonetheless, when deciding whether
to order production of private records, the court must exercise its discretion in a manner that is respectful of
Charter values. The constitutional values involved here are the right to full answer and defence, the right to
privacy, and the right to equality without discrimination.

Witnesses have a right to privacy in relation to private documents and records which are not part of
the Crown's "case to meet" against the accused. They are entitled not to be deprived of their reasonable
expectation of privacy except in accordance with the principles of fundamental justice. Since an applicant
seeking production of private records from third parties is seeking to invoke the power of the State to violate the
privacy rights of other individuals, the applicant must show that the use of the State power to compel production
is justified in a free and democratic society. The use of State power to compel production of private records will
be justified in a free and democratic society when the following criteria are met: (1) it is shown that the accused
cannot obtain the information sought by any other reasonable means; (2) production that infringes privacy must
be as limited as reasonably possible to fulfil the right to make full answer and defence; (3) the arguments urging
production rest on permissible chains of reasoning, rather than upon discriminatory assumptions and stereotypes;
and (4) there is proportionality between the salutary and deleterious effects of production. The measure of
proportionality must reflect the extent to which a reasonable expectation of privacy vests in the particular
records, on the one hand, and the importance of the issue to which the evidence relates, on the other. Moreover,
courts must remain alive to the fact that, in certain cases, the deleterious effects of production may demonstrably
include negative effects on the complainant's course of therapy, threatening psychological harm to the individual
concerned and thereby resulting in a concomitant deprivation of the individual's security of the person.
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The first step for an accused who seeks production of private records held by a third party is to
obtain and serve on the third party a subpoena duces tecum. When the subpoena is served, the accused should
notify the Crown, the subject of the records, and any other person with an interest in the confidentiality of the
records that the accused will ask the trial judge for an order for their production. Then, at the trial, the accused
must bring an application supported by appropriate affidavit evidence showing that the records are likely to be
relevant either to an issue in the trial or to the competence to testify of the subject of the records. If the records
are relevant, the court must balance the salutary and deleterious effects of ordering that the records be produced
to determine whether, and to what extent, production should be ordered.

The records at issue here are not within the possession or control of the Crown, do not form part of
the Crown's "case to meet", and were created by a third party for a purpose unrelated to the investigation or
prosecution of the offence. It cannot be assumed that such records are likely to be relevant, and if the accused is
unable to show that they are, then the application for production must be rejected as it amounts to nothing more
than a fishing expedition. The burden on an accused to demonstrate likely relevance is a significant one. It
would be insufficient for the accused to demand production simply on the basis of a bare, unsupported assertion
that the records might impact on "recent complaint" or the "kind of person" the witness is. Similarly, the
applicant cannot simply invoke credibility "at large", but must rather provide some basis to show that there is
likely to be information in the impugned records which would relate to the complainant's credibility on a
particular, material issue at trial. Equally inadequate is a bare, unsupported assertion that a prior inconsistent
statement might be revealed, or that the defence wishes to explore the records for "allegations of sexual abuse by
other people". Similarly, the mere fact that a witness has a medical or psychiatric record cannot be taken as
indicative of the potential unreliability of the evidence. Any suggestion that a particular treatment, therapy,
illness, or disability implies unreliability must be informed by cogent evidence, rather than stereotype, myth or
prejudice. Finally, it must not be presumed that the mere fact that a witness received treatment or counselling
after a sexual assault indicates that the records will contain information that is relevant to the defence. The focus
of therapy is vastly different from that of an investigation or other process undertaken for the purposes of the
trial. While investigations and witness testimony are oriented toward ascertaining historical truth, therapy
generally focuses on exploring the complainant's emotional and psychological responses to certain events, after
the alleged assault has taken place.

If the trial judge decides that the records are likely to be relevant, then the analysis proceeds to the
second stage, which has two parts. First, the trial judge must balance the salutary and deleterious effects of
ordering the production of the records to the court for inspection, having regard to the accused's right to make
full answer and defence, and the effect of such production on the privacy and equality rights of the subject of the
records. If the judge concludes that production to the court is warranted, he or she should so order. Next, upon
their production to the court, the judge should examine the records to determine whether, and to what extent,
they should be produced to the accused. Production should only be ordered in respect of those records, or parts
of records, that have significant probative value that is not substantially outweighed by the danger of prejudice
to the proper administration of justice or by the harm to the privacy rights of the witness or to the privileged
relation. The following factors should be considered in this determination: (1) the extent to which the record is
necessary for the accused to make full answer and defence; (2) the probative value of the record; (3) the nature
and extent of the reasonable expectation of privacy vested in the record; (4) whether production of the record
would be premised upon any discriminatory belief or bias; (5) the potential prejudice to the complainant's
dignity, privacy or security of the person that would be occasioned by production of the record; (6) the extent to
which production of records of this nature would frustrate society's interest in encouraging the reporting of
sexual offences and the acquisition of treatment by victims; and (7) the effect on the integrity of the trial process
of producing, or failing to produce, the record, having in mind the need to maintain consideration in the
outcome. Where a court concludes that production is warranted, it should only be made in the manner and to the
extent necessary to achieve that objective.

A preliminary inquiry judge is without jurisdiction to order the production of private records held by
third parties. The disclosure order in the present case did not emanate from a preliminary inquiry judge, but was
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issued in response to a pre‑trial application by the defence. Even a superior court judge, however, should not, in
advance of the trial, entertain an application for production of private third party records. Such applications
should be heard by the judge seized of the trial, rather than a pre‑trial judge. In addition, it is desirable for the
judge hearing an application for production to have had the benefit of hearing, and pronouncing upon, the
defence's earlier applications, so as to minimize the possibility of inconsistency in the treatment of two similar
applications. More generally, applications for production of third party records should not be entertained before
the commencement of the trial, even by the judge who is seized of the trial. First, the concept of pre‑trial
applications for production of documents held by third parties is alien to criminal proceedings. Second, if
pre‑trial applications for production from third parties were permitted, it would invite fishing expeditions, create
unnecessary delays, and inconvenience witnesses by requiring them to attend court on multiple occasions.
Moreover, a judge is not in a position, before the beginning of the trial, to determine whether the records in
question are relevant, much less whether they are admissible, and will be unable to balance effectively the
constitutional rights affected by a production order.

Since the right of the accused to a fair trial has not been balanced with the competing rights of the
complainant to privacy and to equality without discrimination in this case, a new trial should be ordered.

Per McLachlin J. (dissenting on this issue): L'Heureux‑Dubé J.'s reasons were concurred in
entirely. The test proposed strikes the appropriate balance between the desire of the accused for complete
disclosure from everyone of everything that could conceivably be helpful to his defence, on the one hand, and
the constraints imposed by the trial process and privacy interests of third parties who find themselves caught up
in the justice system, on the other, all without compromising the constitutional guarantee of a trial which is
fundamentally fair. The Charter guarantees not the fairest of all possible trials, but rather a trial which is
fundamentally fair. What constitutes a fair trial takes into account not only the perspective of the accused, but
the practical limits of the system of justice and the lawful interests of others involved in the process, like
complainants and the agencies which assist them in dealing with the trauma they may have suffered. What the
law demands is not perfect justice, but fundamentally fair justice.

Cases Cited

By L'Heureux‑Dubé J.

Referred to: R. v. O'Connor (1994), 1994 CanLII 8746 (BC CA), 90 C.C.C. (3d) 257; A. (L.L.) v.
B. (A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R.
326; R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1
S.C.R. 657, aff'g (1986), 1986 CanLII 157 (SK CA), 28 C.C.C. (3d) 553; R. v. Mack, 1988 CanLII 24 (SCC),
[1988] 2 S.C.R. 903; R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659; R. v. Scott, 1990 CanLII 27
(SCC), [1990] 3 S.C.R. 979; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601; Re B.C. Motor Vehicle
Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387;
Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; R. v. Potvin, 1993
CanLII 113 (SCC), [1993] 2 S.C.R. 880; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v.
Elshaw, 1991 CanLII 28 (SCC), [1991] 3 S.C.R. 24; Rodriguez v. British Columbia (Attorney General), 1993
CanLII 75 (SCC), [1993] 3 S.C.R. 519; Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; R. v.
Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771; Edmonton Journal v. Alberta (Attorney General), 1989
CanLII 20 (SCC), [1989] 2 S.C.R. 1326; Thomson Newspapers Ltd. v. Canada (Director of Investigation and
Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425; R. v.
E. (A.W.), 1993 CanLII 65 (SCC), [1993] 3 S.C.R. 155; Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993]
2 S.C.R. 143; R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475; R. v. Xenos (1991), 1991 CanLII
3455 (QC CA), 70 C.C.C. (3d) 362; R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206; R. v.
Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R.
727; R. v. Gingras (1992), 1992 CanLII 2826 (AB CA), 71 C.C.C. (3d) 53; R. v. Lyons, 1987 CanLII 25 (SCC),
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[1987] 2 S.C.R. 309; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595; B. (R.) v. Children's Aid Society
of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315; Hunter v. Southam Inc., 1984 CanLII 33
(SCC), [1984] 2 S.C.R. 145; R. v. Pohoretsky, 1987 CanLII 62 (SCC), [1987] 1 S.C.R. 945; R. v. Dyment, 1988
CanLII 10 (SCC), [1988] 2 S.C.R. 417; McInerney v. MacDonald, 1992 CanLII 57 (SCC), [1992] 2 S.C.R. 138;
Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; R. v. Morgentaler, 1988
CanLII 90 (SCC), [1988] 1 S.C.R. 30; Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Roe v.
Wade, 410 U.S. 113 (1973); R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281; Andrews v. Law Society of
British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143; R. v. Gratton, [1987] O.J. No. 1984 (QL); R. v.
Callaghan, [1993] O.J. No. 2013 (QL); R. v. Barbosa (1994), 1994 CanLII 7549 (ON SC), 92 C.C.C. (3d) 131;
Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637; Dersch v. Canada (Attorney General), 1990
CanLII 3820 (SCC), [1990] 2 S.C.R. 1505; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; R. v.
Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469; Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1
S.C.R. 416; R. v. Thompson, 1990 CanLII 43 (SCC), [1990] 2 S.C.R. 1111; R. v. Duarte, 1990 CanLII 150
(SCC), [1990] 1 S.C.R. 30; R. v. K. (V.) (1991), 1991 CanLII 5761 (BC CA), 4 C.R. (4th) 338; Descôteaux v.
Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860; R. v. C. (B.) (1993), 1993 CanLII 8564 (ON CA), 80
C.C.C. (3d) 467; R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d)
424; Doyle v. The Queen, 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597; Caccamo v. The Queen, 1975 CanLII 11
(SCC), [1976] 1 S.C.R. 786; Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93; Re Regina and
Arviv (1985), 1985 CanLII 161 (ON CA), 19 C.C.C. (3d) 395, leave to appeal refused, [1985] 1 S.C.R. v; R. v.
Darby, [1994] B.C.J. No. 814 (QL); R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451; Patterson v. The
Queen, 1970 CanLII 180 (SCC), [1970] S.C.R. 409; Re Hislop and The Queen (1983), 1983 CanLII 1971 (ON
CA), 7 C.C.C. (3d) 240, leave to appeal refused, [1983] 2 S.C.R. viii; R. v. Litchfield, 1993 CanLII 44 (SCC),
[1993] 4 S.C.R. 333; R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451; British Columbia Securities
Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3.

By McLachlin J.

Referred to: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562.

By Cory J.

Referred to: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v. Egger, 1993
CanLII 98 (SCC), [1993] 2 S.C.R. 451.

By Lamer C.J. and Sopinka J. (dissenting)

A. (L.L.) v. B. (A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536; R. v. Stinchcombe, 1991 CanLII 45
(SCC), [1991] 3 S.C.R. 326; R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451; R. v. Chaplin, 1995
CanLII 126 (SCC), [1995] 1 S.C.R. 727; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v.
R. (L.) (1995), 1995 CanLII 8928 (ON CA), 39 C.R. (4th) 390; Morris v. The Queen, 1983 CanLII 28 (SCC),
[1983] 2 S.C.R. 190; R. v. Preston, [1993] 4 All E.R. 638; Dersch v. Canada (Attorney General), 1990 CanLII
3820 (SCC), [1990] 2 S.C.R. 1505; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; Carey v.
Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637; R. v. Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R.
469; R. v. Ross (1993), 1993 CanLII 14717 (NS CA), 79 C.C.C. (3d) 253; R. v. Ross (1993), 1993 CanLII 5655
(NS CA), 81 C.C.C. (3d) 234; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595; R. v. Morin, 1988
CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. R.S. (1985), 1985 CanLII 3575 (ON CA), 19 C.C.C. (3d) 115; R. v.
L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87
C.C.C. (3d) 153; R. v. Hedstrom (1991), 1991 CanLII 5753 (BC CA), 63 C.C.C. (3d) 261; Toohey v.
Metropolitan Police Commissioner, [1965] 1 All E.R. 506; R. v. Ryan (1991), 1991 CanLII 11728 (NS CA), 69
C.C.C. (3d) 226.

By Major J. (dissenting)

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R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 8 to 14, 11(b), (d), 15, 24(1), (2).

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 5.

Civil Code of Quebec, S.Q. 1991, c. 64, arts. 35, 36.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 276(3) [rep. & sub. 1992, c. 38, s. 2], 487(1)(b) [rep. & sub. c. 27 (1st
Supp.), s. 68(1); repl. 1994, c. 44, s. 36], 545, 548(1), 581, 698, 700(1), Part XXII.

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221,
Art. 8.

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Art. 17.

United States Constitution, Fourteenth Amendment.

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), Art. 12.

Authors Cited

Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children:
Report of the Committee on Sexual Offences Against Children and Youths, vol. 1. Ottawa: Minister of
Supply and Services Canada, 1984.

Choo, Andrew L.-T. "Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited", [1995] Crim.
L.R. 864.

Cross, Sir Rupert. Cross on Evidence, 7th ed. By Sir Rupert Cross and Colin Tapper. London: Butterworths,
1990.

Firsten, Temi. "An Exploration of the Role of Physical and Sexual Abuse for Psychiatrically Institutionalized
Women" (1990), unpublished research paper, available from Ontario Women's Directorate.

Halsbury's Laws of England, vol. 17, 4th ed. London: Butterworths, 1976.

Paciocco, David M. "The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process
Concept" (1991), 15 Crim. L.J. 315.

Stuesser, Lee. "Abuse of Process: The Need to Reconsider" (1994), 29 C.R. (4th) 92.

Stuesser, Lee. "Reconciling Disclosure and Privilege" (1994), 30 C.R. (4th) 67.

Wigmore, John Henry. Evidence in Trials at Common Law, vol. 1, 3rd ed. Boston: Little, Brown & Co., 1940.

APPEAL from a judgment of the British Columbia Court of Appeal (1994), 1994 CanLII 6415 (BC
CA), 89 C.C.C. (3d) 109, 42 B.C.A.C. 105, 67 W.A.C. 105, 20 C.R.R. (2d) 212, 29 C.R. (4th) 40, reversing a
decision of the British Columbia Supreme Court (1992), 18 C.R. (4th) 98, ordering a stay of proceedings.
Appeal dismissed, Lamer C.J. and Sopinka and Major JJ. dissenting.

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Christopher M. Considine, Daniel R. McDonagh and David M. Paciocco, for the appellant.

Malcolm D. Macaulay, Q.C., and Andrea Miller, for the respondent.

Robert J. Frater, for the intervener the Attorney General of Canada.

Susan Chapman and Miriam Bloomenfeld, for the intervener the Attorney General for Ontario.

Sharon D. McIvor and Elizabeth J. Shilton, for the interveners the Aboriginal Women's Council, the
Canadian Association of Sexual Assault Centres, the DisAbled Women's Network of Canada and the Women's
Legal Education and Action Fund.

Frances M. Kelly, for the intervener the Canadian Mental Health Association.

Brian Weagant and Sheena Scott, for the intervener the Canadian Foundation for Children, Youth
and the Law.

The following are the reasons delivered by

LAMER C.J. and SOPINKA J. (dissenting) --

I. Introduction

1 This case, along with the companion decision in A. (L.L.) v. B. (A.), 1995 CanLII 52 (SCC), [1995] 4
S.C.R. 536, raises the issue of whether and under what circumstances an accused is entitled to obtain
production of sexual assault counselling records in the possession of third parties. It also raises the issue
of when a stay of proceedings is the appropriate remedy for non-disclosure by the Crown of information
in its possession which is neither clearly irrelevant nor privileged. On the latter issue, we agree with the
reasons of Justice Major.

2 As for the issue of the production of therapeutic records, we have had the benefit of reading the
reasons of our colleague Justice L'Heureux-Dubé, and we are in general agreement with her reasons on
the issues of privacy and privilege. We wish, however, to make the following comments regarding the
procedure to be followed for the disclosure and production of therapeutic records.

II. Analysis

1. Introduction

3 The issues raised in the present appeal relate primarily to the production of therapeutic records
beyond the possession or the control of the Crown. Generally speaking, this issue concerns the manner
in which the accused can obtain production of therapeutic records from the third party custodian of the
documents in question. Although issues relating to the disclosure of private records in the possession of
the Crown are not directly engaged in this appeal, we nevertheless feel that some preliminary comments
on that issue would provide a useful background to a discussion of therapeutic records in the possession
of third parties. As a result, we begin our analysis with a brief consideration of the disclosure obligations
of the Crown where therapeutic counselling records are in the Crown's possession or control. From
there, we will move on to consider the case where such records remain in the hands of third parties and
the production of those records is sought by the accused.

2. Records in the Possession of the Crown

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(a) The Application of Stinchcombe

4 The principles regarding the disclosure of information in the possession of the Crown were
developed by this Court in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. In that case,
it was determined that the Crown has an ethical and constitutional obligation to the defence to disclose
all information in its possession or control, unless the information in question is clearly irrelevant or
protected by a recognized form of privilege.

5 The Crown's duty to disclose information in its possession is triggered when a request for disclosure
is made by the accused. When such a request is made, the Crown has a discretion to refuse to make
disclosure on the grounds that the information sought is clearly irrelevant or privileged. Where the
Crown chooses to exercise this discretion, the Crown bears the burden of satisfying the trial judge that
withholding the information is justified on the grounds of privilege or irrelevance.

6 The foregoing principles were settled by this Court's decision in Stinchcombe and affirmed in R. v.
Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, and R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1
S.C.R. 727, and are not subject to challenge in this appeal. However, it is important to consider whether
therapeutic records of the kind at issue in this appeal should be subject to a different disclosure regime
than other kinds of information in the possession of the Crown. In answering this question, the Court
must consider whether the Crown's disclosure obligations should be tempered by a balancing of the
complainant's privacy interests in therapeutic records against the right of the accused to make full answer
and defence. In our view, a balancing of these competing interests is unnecessary in the context of
disclosure.

(b) Privacy and Privilege

7 As our colleague L'Heureux-Dubé J. points out, sexual assault counselling records relate to intimate
aspects of the life of the complainant. As a result, therapeutic records attract a stronger privacy interest
than many other forms of information that may be in the Crown's possession. One could accordingly
argue that the intensely private nature of therapeutic records affects the Crown's obligation to disclose
such material to the defence, or that disclosure by the Crown is not required owing to some form of
privilege that may attach to the information contained in the records. In our view, however, concerns
relating to privacy or privilege disappear where the documents in question have fallen into the possession
of the Crown. We are accordingly of the opinion that the Crown's well-established duty to disclose all
information in its possession is not affected by the confidential nature of therapeutic records.

8 In our view, it would be difficult to argue that the complainant enjoys an expectation of privacy in
records that are held by the Crown. In discussing the nature of a complainant's privacy interest in
therapeutic records, L'Heureux-Dubé J. points out that such records often relate to "intensely private
aspects" of the complainant's personal life, and describe thoughts and feelings "which have never even
been shared with the closest of friends or family" (para. 112). With respect, we agree that important
privacy interests attach to counselling records in the situation described by our colleague. However,
where the documents in question have been shared with an agent of the state (namely, the Crown), it is
apparent that the complainant's privacy interest in those records has disappeared. Clearly, where the
records are in the possession of the Crown, they have become "the property of the public to be used to
ensure that justice is done" (Stinchcombe, supra, at p. 333). As a form of "public property", records in
the possession of the Crown are simply incapable of supporting any expectation of privacy. As a result,
there is no "privacy interest" to be balanced against the right of the accused to make full answer and
defence.

9 The complainant's lack of a privacy interest in records that are possessed by the Crown counsels
against a finding of privilege in such records. As stated above, it is somewhat inconsistent to claim that
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therapeutic records are sufficiently confidential to warrant a claim of privilege even after this
confidentiality has been waived for the purpose of proceeding against the accused. Obviously, fairness
must require that if the complainant is willing to release this information in order to further the criminal
prosecution, then the accused should be entitled to use the information in the preparation of his or her
defence.

10 In deciding that the complainant waives any potential claim of privilege where therapeutic records
are provided to the Crown, we recognize that any such waiver must be "fully informed" in order to defeat
an attempted claim of privilege. Clearly, one could make the argument that the complainant would not
have turned the documents over to the Crown had he or she been aware that the accused could be given
access to the records. However, this problem is easily solved by placing an onus upon the Crown to
inform the complainant of the potential for disclosure. Where the Crown seeks to obtain the records in
question for the purpose of proceeding against the accused, the Crown must explain to the complainant
that the records, if relevant, will have to be disclosed to the defence. As a result, the complainant will be
given the opportunity to decide whether or not to waive any potential claim of privilege prior to releasing
the records in question to the agents of the state.

11 Finally, it must be recognized that any form of privilege may be forced to yield where such a
privilege would preclude the accused's right to make full answer and defence. As this Court held in
Stinchcombe (at p. 340), a trial judge may require disclosure "in spite of the law of privilege" (emphasis
added) where the recognition of the asserted privilege unduly limits the right of the accused to make full
answer and defence. As a result, information in the possession of the Crown which is clearly relevant
and important to the ability of the accused to raise a defence must be disclosed to the accused, regardless
of any potential claim of privilege that might arise.

(c) Relevance

12 In commenting on the nature of therapeutic records, L'Heureux-Dubé J. has made it clear that the
relevance of such records to the preparation of the defence cannot be presumed. As L'Heureux-Dubé J.
states in her decision (at para. 144):

... it must not be presumed that the mere fact that a witness received treatment or counselling after a
sexual assault indicates that the records will contain information that is relevant to the defence. The
focus of therapy is vastly different from that of an investigation or other process undertaken for the
purposes of the trial.

With respect, we agree with the proposition that the mere existence of therapeutic records is insufficient to
establish the relevance of those records to the defence. However, we are of the opinion that the relevance of
such records must be presumed where the records are in the possession of the Crown. Generally speaking, the
Crown would not obtain possession or control of therapeutic records unless the information the records
contained was somehow relevant to the case against the accused. While one could make the argument that the
Crown simply wished to peruse the records in question in order to ensure that they contained no relevant
information, this cannot affect the Crown's obligation to disclose. If indeed the Crown merely surveyed the
records and found them to contain no relevant material, the Crown would retain the opportunity to prove the
irrelevance of the records on a Stinchcombe application by the defence. Clearly, the Crown is in a better position
than the accused to discharge any onus regarding the relevance of the records, as the Crown retains possession
and control of the information.

(d) Conclusion

13 For each of the foregoing reasons, we are of the view that the Crown's disclosure obligations
established in the Stinchcombe decision are unaffected by the confidential nature of therapeutic records.
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Where the Crown has possession or control of therapeutic records, there is simply no compelling reason
to depart from the reasoning in Stinchcombe: unless the Crown can prove that the records in question are
clearly irrelevant or subject to some form of public interest privilege, the therapeutic records must be
disclosed to the defence.

14 Having concluded that the principles of Stinchcombe are applicable in the context of therapeutic
records within the Crown's possession, it remains to be determined what procedures for production will
apply where the counselling records in question are possessed by third parties. Our views as to the
appropriate procedure in that situation are discussed below.

3. Records in the Hands of Third Parties

(a) The Application of Stinchcombe

15 As stated earlier, this Court's decision in Stinchcombe set out the general principle that an accused's
ability to access information necessary to make full answer and defence is now constitutionally protected
under s. 7 of the Canadian Charter of Rights and Freedoms. The rationale for this constitutional
protection stems from the basic proposition that the right to make full answer and defence is "one of the
pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted":
Stinchcombe, at p. 336.

16 Stinchcombe and its progeny were decided in the context of disclosure, where the information in
question was in the possession of the Crown or the police. In that context, we held that an accused was
entitled to obtain all of the information in the possession of the Crown, unless the information in question
was clearly irrelevant. However, Stinchcombe recognized that, even in the context of disclosure, there are
limits on the right of an accused to access information. For example, when the Crown asserts that the
information is privileged, the trial judge must then balance the competing claims at issue. In such cases,
the information will only be disclosed where the trial judge concludes that the asserted privilege "does
not constitute a reasonable limit on the constitutional right to make full answer and defence"
(Stinchcombe, at p. 340).

17 In our opinion, the balancing approach we established in Stinchcombe can apply with equal force in
the context of production, where the information sought is in the hands of a third party. Of course, the
balancing process must be modified to fit the context in which it is applied. In cases involving
production, for example, we are concerned with the competing claims of a constitutional right to privacy
in the information on the one hand, and the right to full answer and defence on the other. We agree with
L'Heureux-Dubé J. that a constitutional right to privacy extends to information contained in many forms
of third party records.

18 In recognizing that all individuals have a right to privacy which should be protected as much as is
reasonably possible, we should not lose sight of the possibility of occasioning a miscarriage of justice by
establishing a procedure which unduly restricts an accused's ability to access information which may be
necessary for meaningful full answer and defence. In R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2
S.C.R. 577, at p. 611, we recognized that:

Canadian courts ... have been extremely cautious in restricting the power of the accused to call
evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial
system that an innocent person must not be convicted.

Indeed, so important is the societal interest in preventing a miscarriage of justice that our law requires the state
to disclose the identity of an informer in certain circumstances, despite the fact that the revelation may
jeopardize the informer's safety.

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(b) The First Stage: Establishing "Likely Relevance"

19 When the defence seeks information in the hands of a third party (as compared to the state), the
following considerations operate so as to require a shifting of the onus and a higher threshold of
relevance:

(1) the information is not part of the state's "case to meet" nor has the state been granted access to
the information in preparing its case; and

(2) third parties have no obligation to assist the defence.

In light of these considerations, we agree with L'Heureux-Dubé J. that, at the first stage in the production
procedure, the onus should be on the accused to satisfy a judge that the information is likely to be relevant. The
onus we place on the accused should not be interpreted as an evidential burden requiring evidence and a voir
dire in every case. It is simply an initial threshold to provide a basis for production which can be satisfied by oral
submissions of counsel. It is important to recognize that the accused will be in a very poor position to call
evidence given that he has never had access to the records. Viva voce evidence and a voir dire may, however, be
required in situations in which the presiding judge cannot resolve the matter on the basis of the submissions of
counsel. (See Chaplin, supra, at p. 744.)

20 In order to initiate the production procedure, the accused must bring a formal written application
supported by an affidavit setting out the specific grounds for production. However, the court should be
able, in the interests of justice, to waive the need for a formal application in some cases. In either event,
however, notice must be given to third parties in possession of the documents as well as to those persons
who have a privacy interest in the records. The accused must also ensure that the custodian and the
records are subpoenaed to ensure their attendance in the court. The initial application for disclosure
should be made to the judge seized of the trial, but may be brought before the trial judge prior to the
empanelling of the jury, at the same time that other motions are heard. In this way, disruption of the jury
will be minimized and both the Crown and the defence will be provided with adequate time to prepare
their cases based on any evidence that may be produced as a result of the application.

21 According to L'Heureux-Dubé J., once the accused meets the "likely relevance" threshold, he or she
must then satisfy the judge that the salutary effects of ordering the documents produced to the court for
inspection outweigh the deleterious effects of such production. We are of the view that this balancing
should be undertaken at the second stage of the procedure. The "likely relevance" stage should be
confined to a question of whether the right to make full answer and defence is implicated by information
contained in the records. Moreover, a judge will only be in an informed position to engage in the required
balancing analysis once he or she has had an opportunity to review the records in question.

(c) The Meaning of "Likely" Relevance

22 In the disclosure context, the meaning of "relevance" is expressed in terms of whether the
information may be useful to the defence (see Egger, supra, at p. 467, and Chaplin, supra, at p. 740). In
the context of production, the test of relevance should be higher: the presiding judge must be satisfied
that there is a reasonable possibility that the information is logically probative to an issue at trial or the
competence of a witness to testify. When we speak of relevance to "an issue at trial", we are referring not
only to evidence that may be probative to the material issues in the case (i.e. the unfolding of events) but
also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case.
See R. v. R. (L.) (1995), 1995 CanLII 8928 (ON CA), 39 C.R. (4th) 390 (Ont. C.A.), at p. 398.

23 This higher threshold of relevance is appropriate because it reflects the context in which the
information is being sought. Generally speaking, records in the hands of third parties find their way into
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court proceedings by one of two procedures. First, under s. 698(1) of the Criminal Code, R.S.C., 1985, c.
C-46, a party may apply for a subpoena requiring a person to attend where that person is likely to give
material evidence in a proceedings. Pursuant to s. 700(1) of the Code, the subpoena is only available for
those records in the custodian's possession "relating to the subject-matter of the proceedings". The
second method of obtaining production of documents is to apply for a search warrant pursuant to s.
487(1) of the Code. Under s. 487(1)(b) a search warrant will be issued where a justice is satisfied that
there is in a building, receptacle or place "anything that there are reasonable grounds to believe will
afford evidence with respect to the commission of an offence ...". Consequently, under either of these
schemes the individual seeking access to third party records must satisfy a neutral arbiter that the records
are relevant to the proceedings in question. We agree with L'Heureux-Dubé J. that the appropriate
procedure to follow is via the subpoena duces tecum route.

24 While we agree that "likely relevance" is the appropriate threshold for the first stage of the two-step
procedure, we wish to emphasize that, while this is a significant burden, it should not be interpreted as an
onerous burden upon the accused. There are several reasons for holding that the onus upon the accused
should be a low one. First, at this stage of the inquiry, the only issue is whether the information is
"likely" relevant. We agree with L'Heureux-Dubé J. that considerations of privacy should not enter into
the analysis at this stage. We should also not be concerned with whether the evidence would be
admissible, for example as a matter of policy, as that is a different query (Morris v. The Queen, 1983
CanLII 28 (SCC), [1983] 2 S.C.R. 190). As the House of Lords recognized in R. v. Preston, [1993] 4 All
E.R. 638, at p. 664:

... the fact that an item of information cannot be put in evidence by a party does not mean that it is
worthless. Often, the train of inquiry which leads to the discovery of evidence which is admissible at
a trial may include an item which is not admissible....

A relevance threshold, at this stage, is simply a requirement to prevent the defence from engaging in
"speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming" requests for production. See
Chaplin, supra, at p. 744.

25 Second, by placing an onus on the accused to show "likely relevance", we put the accused in the
difficult situation of having to make submissions to the judge without precisely knowing what is
contained in the records. This Court has recognized on a number of occasions the danger of placing the
accused in a "Catch-22" situation as a condition of making full answer and defence (see, for example,
Dersch v. Canada (Attorney General), 1990 CanLII 3820 (SCC), [1990] 2 S.C.R. 1505, at pp. 1513-14;
R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at pp. 1463-64; Carey v. Ontario, 1986
CanLII 7 (SCC), [1986] 2 S.C.R. 637; and R. v. Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469).
In Durette, at p. 499, Sopinka J., for a majority of the Court, held:

The appellants should not be required to demonstrate the specific use to which they might put
information which they have not even seen.

Similarly, La Forest J. in Carey, at p. 678, held in commenting on the lower court's decision which denied the
applicant access to cabinet documents because his submissions, according to that court, were no more than "a
bare unsupported assertion ... that something to help him may be found":

What troubles me about this approach is that it puts on a plaintiff [the] burden of proving how
the documents, which are admittedly relevant, can be of assistance. How can he do that? He has
never seen them; they are confidential and so unavailable. To some extent, then, what the documents
contain must be a matter of speculation.

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We are of the view that the concern expressed in these cases applies with equal force in the case at bar, where the
ultimate goal is the search for truth rather than the suppression of potentially relevant evidence.

26 L'Heureux-Dubé J. questions the "Catch-22" analogy in the context of production. In her view, there
is no presumption of materiality because the records are not created nor sought by the state as part of its
investigation. However, it should be remembered that in most cases, an accused will not be privy to the
existence of third party records which are maintained under strict rules of confidentiality. Generally
speaking, an accused will only become aware of the existence of records because of something which
arises in the course of the criminal case. For example, the complainant's psychiatrist, therapist or social
worker may come forward and reveal his or her concerns about the complainant (as occurred in R. v.
Ross (1993), 1993 CanLII 14717 (NS CA), 79 C.C.C. (3d) 253 (N.S.C.A.), and R. v. Ross (1993), 1993
CanLII 5655 (NS CA), 81 C.C.C. (3d) 234 (N.S.C.A.)). In other cases, the complainant may reveal at the
preliminary inquiry or in his or her statement to the police that he or she decided to lay a criminal charge
against the accused following a visit with a particular therapist. There is a possibility of materiality where
there is a "reasonably close temporal connection between" the creation of the records and the date of the
alleged commission of the offence (R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at p. 673)
or in cases of historical events, as in this case, a close temporal connection between the creation of the
records and the decision to bring charges against the accused.

27 In R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 370, we recognized that "[i]t is
difficult and arguably undesirable to lay down stringent rules for the determination of the relevance of a
particular category of evidence". Consequently, while we will not attempt to set out categories of
relevance, we feel compelled to respond to some of the statements expressed by our colleague.
L'Heureux-Dubé J. suggests in her reasons that "the assumption that private therapeutic or counselling
records are relevant to full answer and defence is often highly questionable" (para. 109) and that "the vast
majority of information noted during therapy sessions bears no relevance whatsoever or, at its highest,
only an attenuated sense of relevance to the issues at trial" (para. 144). With respect, we disagree.
L'Heureux-Dubé J.'s observation as to the likelihood of relevance belies the reality that in many criminal
cases, trial judges have ordered the production of third party records often applying the same principles
we have enunciated in this case. The sheer number of decisions in which such evidence has been
produced supports the potential relevance of therapeutic records.

28 Moreover, in Osolin, supra, this Court recognized the importance of ensuring access to the kind of
information at issue in this appeal. In Osolin, we ordered a new trial where the accused had been denied
an opportunity to cross-examine regarding the psychiatric records of the complainant. Those records
contained the following entry (at p. 661):

She is concerned that her attitude and behaviour may have influenced the man to some extent and is
having second thoughts about the entire case.

Cory J., for the majority, held, at p. 674, that:

...what the complainant said to her counsellor ... could well reflect a victim's unfortunate and
unwarranted feelings of guilt and shame for actions and events that were in no way her fault.
Feelings of guilt, shame and lowered self-esteem are often the result of the trauma of a sexual
assault. If this is indeed the basis for her statement to the counsellor, then they could not in any way
lend an air of reality to the accused's proposed defence of mistaken belief in the complainant's
consent. However, in the absence of cross-examination it is impossible to know what the result
might have been.

29 By way of illustration only, we are of the view that there are a number of ways in which information
contained in third party records may be relevant, for example, in sexual assault cases:
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(1) they may contain information concerning the unfolding of events underlying the criminal
complaint. See Osolin, supra, and R. v. R.S. (1985), 1985 CanLII 3575 (ON CA), 19 C.C.C. (3d)
115 (Ont. C.A.).

(2) they may reveal the use of a therapy which influenced the complainant's memory of the alleged
events. For example, in R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at p. 447,
L'Heureux-Dubé J. recognized the problem of contamination when she stated, in the context of
the sexual abuse of children, that "the fear of contaminating required testimony has forced the
delay of needed therapy and counselling". See too R. v. Norman (1993), 1993 CanLII 3387 (ON
CA), 87 C.C.C. (3d) 153 (Ont. C.A.).

(3) they may contain information that bears on the complainant's "credibility, including testimonial
factors such as the quality of their perception of events at the time of the offence, and their
memory since". See R. v. R. (L.), supra, at p. 398; R. v. Hedstrom (1991), 1991 CanLII 5753 (BC
CA), 63 C.C.C. (3d) 261 (B.C.C.A.); R. v. Ross (1993), 1993 CanLII 5655 (NS CA), 81 C.C.C.
(3d) 234 (N.S.C.A.); Toohey v. Metropolitan Police Commissioner, [1965] 1 All. E.R. 506
(H.L.).

As a result, we disagree with L'Heureux-Dubé J.'s assertion that therapeutic records will only be relevant to the
defence in rare cases.

(d) The Role of the Judge at the Second Stage: Balancing Full Answer and Defence and Privacy

30 We agree with L'Heureux-Dubé J. that "upon their production to the court, the judge should examine
the records to determine whether, and to what extent, they should be produced to the accused" (para.
153). We also agree that in making that determination, the judge must examine and weigh the salutary
and deleterious effects of a production order and determine whether a non-production order would
constitute a reasonable limit on the ability of the accused to make full answer and defence. In some
cases, it may be possible for the presiding judge to provide a judicial summary of the records to counsel
to enable them to assist in determining whether the material should be produced. This, of course, would
depend on the specific facts of each particular case.

31 We also agree that, in balancing the competing rights in question, the following factors should be
considered: "(1) the extent to which the record is necessary for the accused to make full answer and
defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable
expectation of privacy vested in that record; (4) whether production of the record would be premised
upon any discriminatory belief or bias" and "(5) the potential prejudice to the complainant's dignity,
privacy or security of the person that would be occasioned by production of the record in question" (para.
156).

32 However, L'Heureux-Dubé J. also refers to two other factors that she believes must be considered.
She suggests that the judge should take account of "the extent to which production of records of this
nature would frustrate society's interest in encouraging the reporting of sexual offences and the
acquisition of treatment by victims" as well as "the effect on the integrity of the trial process of
producing, or failing to produce, the record, having in mind the need to maintain consideration in the
outcome" (para. 156). This last factor is more appropriately dealt with at the admissibility stage and not
in deciding whether the information should be produced. As for society's interest in the reporting of
sexual crimes, we are of the opinion that there are other avenues available to the judge to ensure that
production does not frustrate the societal interests that may be implicated by the production of the
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records to the defence. A number of these avenues are discussed by the Nova Scotia Court of Appeal in
R. v. Ryan (1991), 1991 CanLII 11728 (NS CA), 69 C.C.C. (3d) 226, at p. 230:

As the trials of these two charges proceed, there are a number of protective devices to allay the
concerns of the caseworkers over the contents of their files. The trial judge has considerable
discretion in these matters. It is for the trial judge to determine whether a ban shall be placed on
publication. It is for the trial judge to decide whether spectators shall be barred when evidence is
given on matters that the trial judge deems to be extremely sensitive and worth excluding from the
information available to the public. High on the list is, of course, the matter of relevance. Unless the
evidence sought from the witness meets the test of relevancy, it will be excluded. The trial judge is
able to apply the well-established rules and tests to determine whether any given piece of evidence is
relevant.

We are also of the view that these options are available to the judge to further protect the privacy interests of
witnesses if the production of private records is ordered.

33 Consequently, the societal interest is not a paramount consideration in deciding whether the
information should be provided. It is, however, a relevant factor which should be taken into account in
weighing the competing interests.

34 In applying these factors, it is also appropriate to bear in mind that production of third party records
is always available to the Crown provided it can obtain a search warrant. It can do so if it satisfies a
justice that there is in a place, which includes a private dwelling, anything that there are reasonable
grounds to believe will afford evidence of the commission of an offence. Fairness requires that the
accused be treated on an equal footing.

III. Conclusion and Disposition

35 Although the parties have obviously failed to observe the above procedures for the production of
third party records, it is unnecessary to determine whether or not a production order was warranted in
this case. In our view, Major J. is correct in holding that the impropriety of the production order at issue
in this appeal "does not excuse the conduct of the Crown after the order was made" (para. 222). As a
result, whether or not production was warranted in this case, the conduct of the Crown in refusing to
comply with the production order is inexcusable, and warrants a stay of the proceedings against the
accused. We are therefore in complete agreement with the reasoning and conclusions of Major J., and
would accordingly hold that this appeal should be allowed.

The reasons of La Forest, L'Heureux-Dubé and Gonthier JJ. were delivered by

36 L'HEUREUX-DUBÉ J. -- Two issues are raised by this appeal. First, when does non-disclosure by
the Crown justify an order that the proceedings which are the subject matter of the non-disclosure be
stayed? Second, what is the appropriate procedure to be followed when an accused seeks production of
documents such as medical and/or therapeutic records that are in the hands of third parties?

37 Strictly speaking, leave has only been sought to this Court from the decision of the British Columbia
Court of Appeal in R. v. O'Connor (1994), 1994 CanLII 6415 (BC CA), 89 C.C.C. (3d) 109, which
addressed the question of the appropriateness of a stay. However, much of the non-disclosure and late
disclosure that formed the basis for the stay of proceedings that is the subject of this appeal related
directly to disagreement over the appropriateness of the pre-trial disclosure order made by Campbell
A.C.J. As a result, those reasons must be read together as a whole with R. v. O'Connor (1994), 1994
CanLII 8746 (BC CA), 90 C.C.C. (3d) 257 ("O'Connor (No. 2)"), in which the Court of Appeal provided
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guidelines for future applications for production of medical records held by third parties. Given the
national importance of establishing guidelines for such production (in light of the absence of legislative
intervention), and the fact that this matter was fully argued before us, it is appropriate for this Court to
provide some assistance to lower courts in this respect. Besides, the question is squarely raised in
another appeal which was heard by this Court and in which judgment is rendered concurrently with this
one: A. (L.L.) v. B. (A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536. As a preliminary matter, however,
it is necessary to set out the facts and judgments relevant to each of the two issues raised in this case.

I. Abuse of Process

A. Facts and Judgments

38 The appellant, Hubert Patrick O'Connor, is a Bishop of the Roman Catholic Church. In the 1960s,
he was the principal of a native residential school in Williams Lake. As a result of incidents alleged to
have taken place between 1964 and 1967 in the Williams Lake area, the appellant was charged in
February 1991 with two counts of rape and two counts of indecent assault. Each count arose in relation
to a separate complainant. The four complainants, P.P, M.B., R.R., and A.S., were all former students
employed by the school and under the direct supervision of the appellant.

39 A preliminary inquiry was held in Williams Lake on July 3 and 4, 1991, and, on June 4, 1992,
defence counsel applied for, and obtained, an order from Campbell A.C.J. requiring disclosure of the
complainants' entire medical, counselling and school records. Defence counsel justified its disclosure
request on the need to test the complainants' credibility, as well as to determine issues such as recent
complaint and corroboration. The order reads as follows:

THIS COURT ORDERS that Crown Counsel produce names, addresses and telephone
numbers of therapists, counsellors, psychologists or psychiatrists who have treated any of the
complainants with respect to allegations of sexual assault or sexual abuse.

THIS COURT FURTHER ORDERS that the complainants authorize all therapists,
counsellors, psychologists and psychiatrists who have treated any of them with respect to allegations
of sexual assault or sexual abuse, to produce to the Crown copies of their complete file contents and
any other related material including all documents, notes, records, reports, tape recordings and
videotapes, and the Crown to provide copies of all this material to counsel for the accused forthwith.

THIS COURT FURTHER ORDERS that the complainants authorize the Crown to obtain all
school and employment records while they were in attendance at St. Joseph's Mission School and
that the Crown provide those records to counsel for the accused forthwith.

THIS COURT FURTHER ORDERS that the complainants authorize the production of all
medical records from the period of time when they were resident at St. Joseph's Mission School as
either students or employees.

At the time this order was made, the Crown did not have in its possession any files of any persons who had
treated any of the complainants in relation to allegations of sexual assault or sexual abuse. Nor, for that matter,
were submissions heard from, or was notice given to, any of the complainants or guardians of the records sought
by the defence.

40 On July 10, 1992, the Crown applied before Low J. of the British Columbia Supreme Court for
directions regarding the disclosure order and for the early appointment of a trial judge. The court was
informed that the complainants were not prepared to comply with the order of Campbell A.C.J., as the
Crown wished to argue the point before the trial judge. On September 21, 1992, moreover, the Crown
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made an application before Oppal J. to change the venue of the trial back to Williams Lake. This
application was dismissed. In the course of its submissions, the Crown noted that it intended to argue
before the trial judge that the therapists' notes subject to the disclosure order of Campbell A.C.J. ought
not to be disclosed on public policy grounds. The court expressed surprise at the fact that the order of
Campbell A.C.J. was not being complied with.

41 Thackray J. was subsequently appointed the trial judge. On October 16, 1992, the appellant applied
for a judicial stay of proceedings before Thackray J. on the basis that pre-charge delay made it
impossible to make full answer and defence. At the same time, the Crown sought directions from the
trial judge regarding the disclosure order of Campbell A.C.J. By this time, however, many of the
impugned records had come into the Crown's possession. The trial judge made it clear that he was to be
provided promptly with therapy records relating to all four complainants. Thackray J. was provided with
the clinical notes of Dr. Ingimundson, the psychologist treating P.P. He reviewed these notes and they
were provided to defence counsel. Crown counsel further informed the court that the therapist for M.B.
had been instructed to forward all records to the Crown. On October 22, 1992, Thackray J. released
written reasons dismissing the appellant's application for a stay of proceedings.

42 On October 30, 1992, the appellant applied by way of writ of certiorari to quash the committal of
the appellant to stand trial on one count of the indictment. On November 5, 1992, the trial judge released
written reasons dismissing the appellant's application. During the course of those proceedings, however,
the Crown produced the notes of M.B.'s therapist, Dr. Cheaney, to the court for review. The Crown
requested, however, that the court not release the records to the defence before hearing an application on
that point from Crown counsel Wendy Harvey. The trial judge assented to this request.

43 On November 19, 1992, the appellant applied pursuant to s. 581 of the Criminal Code, R.S.C., 1985,
c. C-46, for an order that the indictment be declared void ab initio for failure to provide sufficient detail.
This application was dismissed by Thackray J. in reasons filed November 24, 1992. The appellant also
once again raised the issue of the non-disclosure of the medical records of M.B. The Crown opposed the
disclosure of the records on the ground that they were not relevant, but Thackray J. ordered that they be
disclosed to the defence forthwith. Appellant's counsel also requested disclosure of the diary of the
complainant R.R., for which it had already been provided with a synopsis. The trial judge took
possession of the diary for review and expressed concern that the Crown was taking so long to comply
with the order of Campbell A.C.J., given that the trial was scheduled to commence in 10 days.

44 On November 26, 1992, the appellant made another application for a judicial stay of proceedings
based on non-disclosure of several items, including the following: the medical records of the
complainants, the transcript of an interview between Crown counsel and the complainant M.B., the
transcript of an interview between Crown counsel and witness M.O. containing statements contradictory
to testimony given by the complainant M.B. and corroborative of the evidence of the appellant, and the
diary of the complainant R.R.

45 In the course of submissions during this application, Crown counsel Wendy Harvey submitted that
the two Crown counsel, herself and Mr. Greg Jones, were handling the prosecution from different cities,
and that there were difficulties concerning communication and organization. She asserted that the non-
disclosure of some of the medical records was due to inadvertence on her part, and that she had "dreamt"
the transcripts of the interviews with M.B. and M.O. had been disclosed. Ms. Harvey submitted that
uninhibited disclosure of medical and therapeutic records would revictimize the victims, and suggested
that the order of Campbell A.C.J., and the request of defence counsel for disclosure of the therapy
records of the complainants, exhibited gender bias.

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46 In oral reasons delivered Friday, November 27, 1992, Thackray J. dismissed the application for a
judicial stay, finding that the failure to disclose the records of Dr. Hume, R.R.'s physician, had been an
oversight. He further found that M.O.'s evidence had been known to the defence for some time and that
no prejudice to the accused had been demonstrated by its non-disclosure. He declined to disclose the
complete diaries of the complainant R.R. on the basis that the summaries provided to the defence, as well
as the excerpts already in their possession, were sufficient. He noted, however, that the letters written by
Ms. Harvey to the counsellors had unacceptably limited the scope of the disclosure to only those portions
of the records which related directly to the incidents involving the accused. This resulted in the full
therapy records not being disclosed to the defence until after November 26. He concluded that while the
conduct of the Crown was "disturbing", he did not believe that there was a "grand design" to conceal
evidence, nor any "deliberate plan to subvert justice". He was not convinced that the Crown's conduct
would lead the public to hold the system of justice in disrepute. While dismissing the application for a
judicial stay of proceedings, Thackray J. condemned in no uncertain terms Ms. Harvey's inability to
distinguish "between her personal objectives and her professional responsibilities".

47 Over the weekend of November 28, in light of the difficulties encountered during discovery, Crown
counsel agreed to waive any privilege with respect to the contents of the Crown's file and to prepare a
binder in relation to each of the complainants containing all information in the Crown's possession
relating to each of them. This agreement contemplated giving the defence copies of documents which
would not ordinarily be disclosed, including Crown counsel's personal notes and work product, some of
which were on computer. At the pre-trial conference held that Monday, Ms. Harvey informed the trial
judge that appellant's counsel were now in possession of all the notes that she had prepared in connection
with the case.

48 The trial began on Wednesday, December 2, 1992. The Crown's first witness was Dr. Van Dyke, a
socio-cultural anthropologist. Its second witness was Margaret Gilbert, a former student at St. Joseph's
Mission School. Her evidence dealt primarily with the layout of the school. On the second day of the
trial, the Crown called the complainant P.P. In the course of direct examination, the Crown sought to
have the witness give her evidence by drawing. Appellant's counsel objected. Discussions revealed that
the witness had, during the course of witness preparation that weekend, made a drawing of this nature for
Crown counsel that had not been disclosed to defence counsel. That drawing was obtained from the
Crown office and the appellant took the position that it represented a materially different version of this
complainant's allegations. The Crown disagreed with that assessment. The trial judge refused to allow
the witness to testify through the use of drawings. At the end of the day, the Crown had not yet
completely finished its examination-in-chief of this witness.

49 When the trial resumed the following day, appellant's counsel informed the court that, at the
conclusion of the previous day's proceedings, the Crown had provided the appellant with another eight
sets of drawings prepared by the various complainants in the presence of Crown counsel. Crown counsel
Wendy Harvey was not present in court, and no explanation was given for her absence. Court was
adjourned for one hour. When the trial resumed, Ms. Harvey was still not present. Appellant's counsel
made another application for a judicial stay of proceedings based largely on the fact that the senior
prosecutor, Mr. Jones, was still unable to guarantee to the appellant that full disclosure had been made.
Over the objection of appellant's counsel, the trial judge granted Mr. Jones' request for a further
adjournment until the afternoon session.

50 When court resumed that afternoon, Wendy Harvey was present. The Crown submission, however,
was put forward by Mr. Jones. He acknowledged that the binders which had been provided to appellant's
counsel as a result of the agreement reached over the weekend of November 28 were not complete, and
that the staff had omitted to download Ms. Harvey's computer files. One of the undisclosed documents
was the complete version of a Crown interview with P.P. which had been partially disclosed to the
defence on November 25. After reviewing some of the undisclosed notes, the Crown indicated that it did
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not believe that the notes revealed anything "new". Mr. Jones then indicated to the court that Ms.
Harvey's complete computer files were in the process of being downloaded but that, in light of what had
just happened, he could not guarantee that everything had been appropriately disclosed to the appellant at
that time. He took the position, however, that the undisclosed notes contained nothing material, and
encouraged the trial judge to engage in an inquiry of their materiality. These statements applied to all
four counts on the indictment. Thackray J. indicated that he would give judgment on December 7 on
defence counsel's motion for a stay. Although he indicated he would give counsel the opportunity to
make further submissions if any other developments occurred, no further submissions were made by
either side.

51 On December 7, 1992, Thackray J. handed down a judicial stay of proceedings on all four counts:
(1992), 18 C.R. (4th) 98. He distinguished this application from previous applications for a stay of
proceedings on the basis that the trial was now under way and witnesses had already been called by the
Crown and cross-examined by the defence. Thackray J. found that had the diagrams of the complainant
P.P. been disclosed prior to testimony, they might have affected the preparation of the case by the
defence. While P.P. had not yet been cross-examined, Thackray J. found it unacceptable that defence
counsel was put in the position of preparing the cross-examination without all the relevant documents.
He therefore concluded that the accused had suffered prejudice, although he conceded that the extent of
this prejudice could not be measured. He noted the constant intervention required by the court to ensure
full compliance with the order of Campbell A.C.J. and found that the Crown's earlier conduct had created
"an aura" that had pervaded and ultimately destroyed the case. In his view, this was now "one of the
clearest of cases", and to allow the case to proceed would tarnish the integrity of the court.

52 The British Columbia Court of Appeal allowed the Crown's appeal and directed a new trial: (1994),
1994 CanLII 6415 (BC CA), 89 C.C.C. (3d) 109, 42 B.C.A.C. 105, 67 W.A.C. 105, 20 C.R.R. (2d) 212,
29 C.R. (4th) 40. It reviewed the case law on abuse of process and concluded that there was no settled
view on whether the common law doctrine had or had not been subsumed within s. 7 of the Canadian
Charter of Rights and Freedoms. It noted, however, that the focus of the common law doctrine of abuse
of process had historically been on maintaining the integrity of the court's process whereas the focus of
the Charter was on the rights of the individual. It also noted the seemingly different standards of proof
and remedies under the two regimes. It therefore concluded that the common law doctrine of abuse of
process continued to exist independently of s. 7 of the Charter, although there may be significant overlap
between the two.

53 After noting that some ambiguity remained as to the required elements of abuse of process, the Court
of Appeal concluded that in order to establish an abuse of process, as opposed to a "mere" violation of a
Charter right, an accused must demonstrate conduct on the part of the Crown that is so oppressive,
vexatious or unfair as to contravene our fundamental notions of justice and thus to undermine the
integrity of our judicial process. It further noted that the discretion to order a stay may be exercised only
in the "clearest of cases", meaning that the trial judge must be convinced that, if allowed to continue, the
proceedings would tarnish the integrity of the judicial process.

54 The court then turned to the scope and extent of the Crown's obligation to disclose information, as
set out in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. It concluded that the right of
an accused to full disclosure by the Crown is an adjunct of the right to make full answer and defence and
that disclosure is not, itself, a constitutionally protected right. As such, a simple non-disclosure, in and
of itself, would not necessarily constitute a Charter violation. A Charter violation would only be made
out when the accused demonstrated that a document which should have been disclosed (i.e. there was a
reasonable possibility that it could assist in making full answer and defence) had on a balance of
probabilities prejudiced or had an adverse effect on the accused's ability to make full answer and
defence. In some circumstances, the only appropriate remedy for such non-disclosure might be a stay of
proceedings. The Court of Appeal further held that a material non-disclosure, without more, could never
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amount to a common law abuse of process. In its view, only when non-disclosure was motivated by an
intention on the part of the Crown to deprive the accused of a fair trial could an abuse of process arise.

55 Applying these principles to the case at bar, the Court of Appeal concluded that the trial judge erred
in failing to inquire into the materiality of the non-disclosed information before ordering the stay of
proceedings. As such, it could not be said that a violation of the accused's s. 7 rights had occurred, nor
that the conduct of the Crown amounted to an abuse of process.

56 The court noted that the trial judge had felt that a stay was necessary because of the "aura" which
had been created by the earlier non-disclosures in respect of the order of Campbell A.C.J. It noted that
the trial judge had found (in the judgment of November 27) that there was no "grand design" in this non-
disclosure to subvert the fair trial rights of the accused. It also noted that the Crown had tried to rectify
the earlier disclosure problems by waiving all privilege and giving the defence the entire contents of their
file. The court thus concluded that there was no evidence that the Crown's inept handling of the case was
motivated by an intention to deprive the accused of a fair trial. As such, the trial judge had erred in
entering a stay of proceedings on the basis of the common law abuse of process.

57 The court then commented briefly on the question of whether an alternative remedy would have
been available under the Charter. It concluded that since no determination as to the materiality of the
records was made, a stay could not be sustained under s. 24(1). Since it did not appear that any
permanent or irremediable damage had been done to the accused's ability to make full answer and
defence as a result of any non-disclosures or late disclosures that were in fact material, the accused's
rights could have been protected by an adjournment, by recalling witnesses who had already testified, or
by declaring a mistrial if those would not suffice.

B. Analysis of Abuse of Process

58 I agree with the Court of Appeal that it would be pointless to order a new trial on the basis that there
was no abuse of process if a stay ought nevertheless to have prevailed under ss. 7 and 24(1) of the
Charter. It is therefore necessary to clarify the relationship between the common law and the Charter in
this respect, both in order to dispose effectively of the question raised in this case and to provide
guidance to courts facing similar situations involving non-disclosure in the future.

(i) The Relationship Between Abuse of Process and the Charter

59 The modern resurgence of the common law doctrine of abuse of process began with the judgment of
this Court in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128. In Jewitt, the Court set down what
has since become the standard formulation of the test, at pp. 136-37:

Lord Devlin has expressed the rationale supporting the existence of a judicial discretion to
enter a stay of proceedings to control prosecutorial behaviour prejudicial to accused persons in
Connelly v. Director of Public Prosecutions, [1964] A.C. 1254 (H.L.) at p. 1354:

Are the courts to rely on the Executive to protect their process from abuse? Have they not
themselves an inescapable duty to secure fair treatment for those who come or who are brought
before them? To questions of this sort there is only one possible answer. The courts cannot
contemplate for a moment the transference to the Executive of the responsibility for seeing that
the process of law is not abused.

I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young, supra, and affirm
that "there is a residual discretion in a trial court judge to stay proceedings where compelling an
accused to stand trial would violate those fundamental principles of justice which underlie the
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community's sense of fair play and decency and to prevent the abuse of a court's process through
oppressive and vexatious proceedings". I would also adopt the caveat added by the Court in Young
that this is a power which can be exercised only in the "clearest of cases". [Emphasis added.]

The general test for abuse of process adopted in that case has been repeatedly affirmed: R. v. Keyowski, 1988
CanLII 74 (SCC), [1988] 1 S.C.R. 657, at pp. 658-59, R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903,
at p. 941, R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667, R. v. Scott, 1990 CanLII 27
(SCC), [1990] 3 S.C.R. 979, at pp. 992-93, and most recently in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1
S.C.R. 601, at pp. 612-15.

60 After considering much of this case law, the Court of Appeal concluded that the preponderance of
cases favoured maintaining a distinction between the Charter and the common law doctrine of abuse of
process. The Court of Appeal may, in my view, have underestimated the extent to which both individual
rights to trial fairness and the general reputation of the criminal justice system are fundamental concerns
underlying both the common law doctrine of abuse of process and the Charter. This, for the following
reasons.

61 First, while the Charter is certainly concerned with the rights of the individual, it is also concerned
with preserving the integrity of the judicial system. Subsection 24(2) of the Charter gives express
recognition to this dual role. More significantly, however, this Court has, on many occasions, noted that
the principles of fundamental justice in s. 7 are, in large part, inspired by, and premised upon, values that
are fundamental to our common law. In Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2
S.C.R. 486, at p. 503, Lamer J. (as he then was) observed:

...the principles of fundamental justice are to be found in the basis tenets of our legal system. They
do not lie in the realm of general public policy but in the inherent domain of the judiciary as
guardian of the justice system. Such an approach to the interpretation of "principles of fundamental
justice" is consistent with the wording and structure of s. 7, the context of the section, i.e., ss. 8 to
14, and the character and larger objects of the Charter itself. It provides meaningful content for the
s. 7 guarantee all the while avoiding adjudication of policy matters. [Emphasis added.]

See also R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at p. 406; Dagenais v. Canadian
Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 929 (per Gonthier J., dissenting on other
grounds). The common law doctrine of abuse of process is part and parcel of those fundamental values. It is,
therefore, not surprising that in R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at p. 915 (per
Sopinka J.), the majority of this Court recognized that the court's power to remedy abuses of its process now has
constitutional status.

62 Conversely, it is equally clear that abuse of process also contemplates important individual interests.
In "The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept"
(1991), 15 Crim. L.J. 315, at p. 331, Professor Paciocco suggests that the doctrine of abuse of process, in
addition to preserving the reputation of the administration of justice, also seeks to ensure that accused
persons are given a fair trial. Arguably, the latter is essentially a subset of the former. Unfair trials will
almost inevitably cause the administration of justice to fall into disrepute: R. v. Collins, 1987 CanLII 84
(SCC), [1987] 1 S.C.R. 265; R. v. Elshaw, 1991 CanLII 28 (SCC), [1991] 3 S.C.R. 24. See also A. L.-T.
Choo, "Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited", [1995] Crim. L.R.
864, at p. 865. What is significant for our purposes, however, is the fact that one often cannot separate
the public interests in the integrity of the system from the private interests of the individual accused.

63 In fact, it may be wholly unrealistic to treat the latter as wholly distinct from the former. This Court
has repeatedly recognized that human dignity is at the heart of the Charter. While respect for human
dignity and autonomy may not necessarily, itself, be a principle of fundamental justice (Rodriguez v.
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British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at p. 592, per
Sopinka J. for the majority), it seems to me 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.

64 The overlap between prejudice to the individual and prejudice to the system was noted, for instance,
in Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 947, where Lamer J. stated that,
in certain cases, a Charter stay might be appropriate to remedy a violation of s. 11(b) even where there
was no demonstrated prejudice to the fairness of the trial. More recently, in R. v. Morin, 1992 CanLII 89
(SCC), [1992] 1 S.C.R. 771, at p. 786 (per Sopinka J.), and p. 812 (per McLachlin J.) this Court
recognized that, although the primary purpose of s. 11(b) is the protection of the individual rights of the
accused, there is also a secondary interest of society as a whole in the prompt, humane, and fair trial of
those accused of crimes. Equally apposite are the remarks of Wilson J. in Edmonton Journal v. Alberta
(Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, at p. 1354, who noted that a
contextually sensitive approach to Charter rights requires that the private interests reflected therein also
be evaluated from the standpoint of the public interests that underlie those private rights. Given that
many, if not most, of the individual rights protected in the Charter also have a broader, societal
dimension, it is therefore consistent with both the purpose and the spirit of the Charter to look, in certain
cases, beyond the possibility of prejudice to the particular accused, to clear cases of prejudice to the
integrity of the judicial system.

65 For this reason, the principles of fundamental justice, including the "fairness of the trial", necessarily
reflect a balancing of societal and individual interests: Thomson Newspapers Ltd. v. Canada (Director of
Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1
S.C.R. 425, at p. 539 (per La Forest J.); R. v. E. (A.W.), 1993 CanLII 65 (SCC), [1993] 3 S.C.R. 155, at p.
198 (per Cory J.); Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143; R. v.
Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475, at p. 486. As such, they reflect both
individual and societal interests. In my view, it is undisputable that the preservation of the integrity of
the judicial system is one of these interests.

66 Second, I would note the beginnings of a strong trend toward convergence between the Charter and
traditional abuse of process doctrine. In R. v. Xenos (1991), 1991 CanLII 3455 (QC CA), 70 C.C.C. (3d)
362 (Que. C.A.), for instance, the accused had been charged with arson and attempting to defraud an
insurance company. It emerged in cross-examination that the Crown's key witness had arranged with the
insurers to be paid $50,000 by the insurers if the accused was convicted. The trial judge found an abuse
of process, but declined to order a stay. Rather, in convicting the accused, he said that he had ignored
this evidence. The Court of Appeal agreed in principle with the trial judge that a stay was not the only
remedy for an abuse of process and went on to rule that the appropriate remedy was in fact to exclude the
witness's testimony in a new trial before a different judge. This case is an excellent example, in my
mind, of how courts are becoming increasingly bold and innovative in finding appropriate remedies in
lieu of stays for abuses of process. Professor Stuesser points out in "Abuse of Process: The Need to
Reconsider" (1994), 29 C.R. (4th) 92, at p. 99, moreover, that the common law in the United Kingdom
and Australia urges judges to look at lesser remedies before entering stays of proceedings. He argues
that these authorities support the view that even under the common law, the remedy for abuse of process
is no longer only a stay of proceedings.

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67 I recognize that this Court has consistently, albeit implicitly, considered abuse of process separately
from the Charter. In Conway, supra, it considered abuse of process separately from the s. 11(b)
considerations arising from the accused facing a third trial. In Scott, supra, in the context of an
immediate stay by the Crown upon the posing by defence counsel of a question which would have
revealed the identity of a police informer, the majority again considered abuse of process separately from
an examination of whether the accused's s. 11(b) rights had been violated by the Crown's subsequent
reinitiation of the proceedings. Finally, in Power, supra, it found no abuse of process in the Crown's
failure to call further evidence after the trial judge had excluded a key breathalyzer sample and did not
address the possibility of a Charter violation at all. In my view, however, the issues addressed in each of
these three cases could have been addressed equally effectively under the Charter. In none of these
decisions did the majority of this Court actively turn its mind to the interaction between the Charter and
the common law doctrine of abuse of process. On the only occasion that it did, moreover, it expressly
declined to address the issue: Keyowski, supra, at pp. 660-61. On the other hand, in Mack, supra, this
Court commented at pp. 939-40 and again at p. 976 upon the strong parallels that exist between the two
regimes.

68 I also recognize that, despite these strong parallels, the common law and Charter analyses have often
been kept separate because of the differing onus of proof upon the accused under the two regimes. In R.
v. Keyowski (1986), 1986 CanLII 157 (SK CA), 28 C.C.C. (3d) 553 (Sask. C.A.), at pp. 561-62, for
instance, it was noted that while the burden of proof under the Charter was the balance of probabilities,
the burden under the common law was the "clearest of cases". It is important to remember, however, that
even if a violation of s. 7 is proved on a balance of probabilities, the court must still determine what
remedy is just and appropriate under s. 24(1). The power granted in s. 24(1) is in terms discretionary,
and it is by no means automatic that a stay of proceedings should be granted for a violation of s. 7. On
the contrary, I would think that the remedy of a judicial stay of proceedings would be appropriate under
s. 24(1) only in the clearest of cases. In this way, the threshold for obtaining a stay of proceedings
remains, under the Charter as under the common law doctrine of abuse of process, the "clearest of
cases".

69 Remedies less drastic than a stay of proceedings are of course available under s. 24(1) in situations
where the "clearest of cases" threshold is not met but where it is proved, on a balance of probabilities,
that s. 7 has been violated. In this respect the Charter regime is more flexible than the common law
doctrine of abuse of process. However, this is not a reason to retain a separate common law regime. It
is important to recognize that the Charter has now put into judges' hands a scalpel instead of an axe -- a
tool that may fashion, more carefully than ever, solutions taking into account the sometimes
complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the
integrity of the judicial system. Even at common law, courts have given consideration to the societal (not
to mention individual) interests in obtaining a final adjudication of guilt or innocence in cases involving
serious offences. In Conway, supra, at p. 1667, for instance, I elaborated upon the essential balancing
character of abuse of process in the following terms:

[Abuse of process] acknowledges that courts must have the respect and support of the community in
order that the administration of criminal justice may properly fulfil its function. Consequently,
where the affront to fair play and decency is disproportionate to the societal interest in the effective
prosecution of criminal cases, then the administration of justice is best served by staying the
proceedings. [Emphasis added.]

I see no reason why such balancing cannot be performed equally, if not more, effectively under the Charter, both
in terms of defining violations and in terms of selecting the appropriate remedy to perceived violations. See, by
analogy, Morin, supra.

70 For these reasons, I conclude that the only instances in which there may be a need to maintain any
type of distinction between the two regimes will be those instances in which the Charter, for some
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reason, does not apply yet where the circumstances nevertheless point to an abuse of the court's process.
Because the question is not before us, however, I leave for another day any discussion of when such
situations, if they indeed exist, may arise. As a general rule, however, there is no utility in maintaining
two distinct approaches to abusive conduct. The distinction is one that only lawyers could possibly find
significant. More importantly, maintaining this somewhat artificial dichotomy may, over time, create
considerably more confusion than it resolves.

71 The principles of fundamental justice both reflect and accommodate the nature of the common law
doctrine of abuse of process. Although I am willing to concede that the focus of the common law
doctrine of abuse of process has traditionally been more on the protection of the integrity of the judicial
system whereas the focus of the Charter has traditionally been more on the protection of individual
rights, I believe that the overlap between the two has now become so significant that there is no real
utility in maintaining two distinct analytic regimes. We should not invite schizophrenia into the law.

72 I therefore propose to set down some guidelines for evaluating, first, whether there has been a
violation of the Charter that invokes concerns analogous to those traditionally raised under the doctrine
of abuse of process and, second, the circumstances under which the remedy of a judicial stay of
proceedings will be "appropriate and just", as required by s. 24(1) of the Charter.

(ii) Section 7, Abuse of Process and Non-disclosure

73 As I have already noted, the common law doctrine of abuse of process has found application in a
variety of different circumstances involving state conduct touching upon the integrity of the judicial
system and the fairness of the individual accused's trial. For this reason, I do not think that it is helpful to
speak of there being any one particular "right against abuse of process" within the Charter. Depending
on the circumstances, different Charter guarantees may be engaged. For instance, where the accused
claims that the Crown's conduct has prejudiced his ability to have a trial within a reasonable time, abuses
may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this Court
has now established fairly clear guidelines (Morin, supra). Alternatively, the circumstances may indicate
an infringement of the accused's right to a fair trial, embodied in ss. 7 and 11(d) of the Charter. In both
of these situations, concern for the individual rights of the accused may be accompanied by concerns
about the integrity of the judicial system. In addition, there is a residual category of conduct caught by s.
7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or
impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse
and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to
connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice
and thus undermines the integrity of the judicial process.

74 Non-disclosure by the Crown normally falls within the second category described above.
Consequently, a challenge based on non-disclosure will generally require a showing of actual prejudice
to the accused's ability to make full answer and defence. In this connection, I am in full agreement with
the Court of Appeal that there is no autonomous "right" to disclosure in the Charter (at pp. 148-49
C.C.C.):

...the right of an accused to full disclosure by the Crown is an adjunct of the right to make full
answer and defence. It is not itself a constitutionally protected right. What this means is that while
the Crown has an obligation to disclose, and the accused has a right to all that which the Crown is
obligated to disclose, a simple breach of the accused's right to such disclosure does not, in and of
itself, constitute a violation of the Charter such as to entitle a remedy under s. 24(1). This flows
from the fact that the non-disclosure of information which ought to have been disclosed because it
was relevant, in the sense there was a reasonable possibility it could assist the accused in making
full answer and defence, will not amount to a violation of the accused's s. 7 right not to be deprived
of liberty except in accordance with the principles of fundamental justice unless the accused
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establishes that the non-disclosure has probably prejudiced or had an adverse effect on his or her
ability to make full answer and defence.

It is the distinction between the "reasonable possibility" of impairment of the right to make
full answer and defence and the "probable" impairment of that right which marks the difference
between a mere breach of the right to relevant disclosure on the one hand and a constitutionally
material non-disclosure on the other. [Italics in original; underlining added.]

Where the accused seeks to establish that the non-disclosure by the Crown violates s. 7 of the Charter, he or she
must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an
adverse effect on his or her ability to make full answer and defence. It goes without saying that such a
determination requires reasonable inquiry into the materiality of the non-disclosed information. Where the
information is found to be immaterial to the accused's ability to make full answer and defence, there cannot
possibly be a violation of the Charter in this respect. I would note, moreover, that inferences or conclusions
about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the
accused's right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on
the fairness of the accused's trial. Once a violation is made out, a just and appropriate remedy must be found.

(iii) The Appropriate Remedy to a s. 7 Violation for Non-disclosure

75 Where there has been a violation of a right under the Charter, s. 24(1) confers upon a court of
competent jurisdiction the power to confer "such remedy as the court considers appropriate and just in
the circumstances". Professor Paciocco, supra, at p. 341, has recommended that a stay of proceedings
will only be appropriate when two criteria are fulfilled:

(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.

I adopt these guidelines, and note that they apply equally with respect to prejudice to the accused or to the
integrity of the judicial system.

76 As I have stated, non-disclosure will generally violate s. 7 only if it impairs the accused's right to full
answer and defence. Although it is not a precondition to a disclosure order that there be a Charter
violation, a disclosure order can be a remedy under s. 24(1) of the Charter. Thus, where the adverse
impact upon the accused's ability to make full answer and defence is curable by a disclosure order, then
such a remedy, combined with an adjournment where necessary to enable defence counsel to review the
disclosed information, will generally be appropriate.

77 There may, however, be exceptional situations where, given the advanced state of the proceedings, it
is simply not possible to remedy through reasonable means the prejudice to the accused's right to make
full answer and defence. In such cases, the drastic remedy of a stay of proceedings may be necessary.
Although I will return to this matter in my discussion on the disclosure of records held by third parties,
we must recall that, under certain circumstances, the defence will be unable to lay the foundation for
disclosure of a certain item until the trial has actually begun and witnesses have already been called. In
those instances, it may be necessary to take measures such as permitting the defence to recall certain
witnesses for examination or cross-examination, adjournments to permit the defence to subpoena
additional witnesses or even, in extreme circumstances, declaring a mistrial. A stay of proceedings is a
last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer
and defence are exhausted.

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78 When choosing a remedy for a non-disclosure that has violated s. 7, the court should also consider
whether the Crown's breach of its disclosure obligations has also violated fundamental principles
underlying the community's sense of decency and fair play and thereby caused prejudice to the integrity
of the judicial system. If so, it should be asked whether this prejudice is remediable. Consideration must
be given to the seriousness of the violation and to the societal and individual interests in obtaining a
determination of guilt or innocence. Although some of the most salient considerations are discussed
immediately below, that discussion is by no means exhaustive.

79 Among the most relevant considerations are the conduct and intention of the Crown. For instance,
non-disclosure due to a refusal to comply with a court order will be regarded more seriously than non-
disclosure attributable to inefficiency or oversight. It must be noted, however, that while a finding of
flagrant and intentional Crown misconduct may make it significantly more likely that a stay of
proceedings will be warranted, it does not follow that a demonstration of mala fides on the part of the
Crown is a necessary precondition to such a finding. As Wilson J. observed for the Court in Keyowski,
supra, at p. 659:

To define "oppressive" as requiring misconduct or an improper motive would, in my view, unduly

restrict the operation of the doctrine.... Prosecutorial misconduct and improper motivation are but
two of many factors to be taken into account when a court is called upon to consider whether or not
in a particular case the Crown's [conduct] amounts to an abuse of process.

80 Another pertinent consideration will be the number and nature of adjournments attributable to the
Crown's conduct, including adjournments attributable to its failure to disclose in a timely manner. Every
adjournment and/or additional hearing caused by the Crown's breach of its obligation to disclose may have
physical, psychological and economic consequences upon the accused, particularly if the accused is incarcerated
pending trial. In all fairness, however, the Crown may also seek to establish by evidence that the accused is in
the majority group of persons who benefit from a delay in the proceedings because they do not want an early
trial: Morin, supra, at pp. 802-3.

81 Finally, in determining whether the prejudice to the integrity of the judicial system is remediable,
consideration must be given to the societal and individual interests in obtaining a determination of guilt
or innocence. It goes without saying that these interests will increase commensurately to the seriousness
of the charges against the accused. Consideration should be given to less drastic remedies than a stay of
proceedings (see for example R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206, where,
although I agreed with the majority that the Crown's conduct in disregarding the plea bargain made with
the accused did not amount to one of the "clearest of cases" requiring a stay of proceedings, I would have
nonetheless found a violation of the accused's rights under s. 7 and substituted a conviction for the lesser
included offence which was the object of the plea bargain).

82 It must always be remembered that a stay of proceedings is only appropriate "in the clearest of
cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or
where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution
were continued.

(iv) Summary

83 Where life, liberty or security of the person is engaged in a judicial proceeding, and it is proved on a
balance of probabilities that the Crown's failure to make proper disclosure to the defence has impaired
the accused's ability to make full answer and defence, a violation of s. 7 will have been made out. In
such circumstances, the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Although
the remedy for such a violation will typically be a disclosure order and adjournment, there may be some
extreme cases where the prejudice to the accused's ability to make full answer and defence or to the
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integrity of the justice system is irremediable. In those "clearest of cases", a stay of proceedings will be
appropriate.

C. Application to the Facts

84 The motion which prompted Thackray J.'s pronouncement of a stay of proceedings was the fifth
such motion since the trial judge was seized of the case. It was only the second, however, that related in
any way to non-disclosure by the Crown. The first motion for a stay based upon non-disclosure, which
Thackray J. rejected in reasons delivered on November 27, pertained to non-disclosures relating to the
order of Campbell A.C.J., which in turn governed the production of materials which were almost
exclusively in the hands of third parties. Much of the delayed disclosure by the Crown of the
complainants' medical and therapeutic records, even after the order of Campbell A.C.J., seems to have
been genuinely motivated by a desire to protect the privacy interests of the complainants, and not to
compromise the rights of the accused. Some of the non-disclosure was attributable to simple
incompetence. Thackray J. concluded as much when he noted that there was no evidence to suggest any
"grand design by the Crown to conceal evidence" (p. 105). Although, for reasons which appear below, I
agree that the scope and nature of the disclosure order were unacceptably broad, I agree with the Court of
Appeal that a more appropriate route for the Crown to have taken would have been to apply for a
variation of the original disclosure order, in which the Crown would have sought greater accommodation
for the privacy interests of the individual complainants involved.

85 Nonetheless, due in part to an undertaking by the Crown on November 28 to disclose to the defence
its complete files on the case, there is no dispute that the order of Campbell A.C.J. had been fully
complied with by the Crown at the time of the fifth application by the defence for a stay of proceedings.
This fifth application was founded upon the non-disclosure of a full transcript of a witness interview
which had previously only partly been disclosed to the defence, the non-disclosure of several diagrams
produced by witnesses in the course of their preparations with the Crown, and the failure of Crown
counsel to be able to assure the court on the third day of the trial that all relevant documents in Ms.
Harvey's computer files had been fully disclosed to the defence. Defence counsel exhorted the trial judge
to consider, as well, the previous disclosure difficulties encountered by the defence.

86 In granting the stay of proceedings on December 7, Thackray J. concluded that the Crown's previous
uncooperativeness in response to Campbell A.C.J.'s disclosure order had created an "aura" which
ultimately pervaded and destroyed the case. In the November 27 ruling refusing the fourth application
for a stay, however, Thackray J. had ruled that although the Crown's excuses for non-disclosure were
"limp" and indicative of incompetence, there was no evidence to suggest any "grand design by the Crown
to conceal evidence" (p. 105). Given that the order of Campbell A.C.J. had been fully complied with by
the time of the fifth application for a stay, it is unclear what changed the trial judge's mind about the
Crown's conduct in relation to that non-disclosure. Rather, it would appear that Thackray J. attached
greatest significance to the fact that, notwithstanding that the trial had now begun, Crown counsel could
still not provide the court with an assurance that all relevant information had been disclosed. This may
have been the straw that broke the proverbial camel's back.

87 The frustration of the trial judge, forced on several occasions to intervene in order to further the
disclosure process, is certainly understandable. As I have already noted, the Crown's failure to comply
fully with the disclosure order of Campbell A.C.J. must not be regarded lightly. At the same time,
however, we must place the considerable disclosure difficulties within their proper context. The
considerable disclosure difficulties related almost entirely to the following: (1) materials which were not
in the Crown's possession at the time of the making of the original disclosure order and which
consequently, for reasons that I shall discuss below, the Crown is not under any obligation to produce;
and (2) work product which, provided that it contains no material inconsistencies or additional facts not
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already disclosed to the defence, the Crown would also not ordinarily be obliged to disclose, were it not
for the undertaking which it gave to the defence the weekend before the beginning of the trial. This was
not a case where the Crown failed, for whatever reason, to disclose the fruits of an investigation
undertaken by agents of the state. Much confusion was attributable to the fact that the law regarding the
disclosure of third parties' private records was highly uncertain, and nobody was quite sure what to do.

88 In agreeing on November 28 to hand over its complete files in the case, the Crown may unwittingly
have promised more than it could realistically deliver in such a short time, given the lack of computer
literacy of one of the Crown counsel, the complexities involved in the preparation of the case, and the
fact that the prosecution was being run from two different cities. These are, as the trial judge noted,
"limp" excuses. Nonetheless, although the Crown, as an officer of the court, must always strive to fulfil
its undertakings, the fact that the imperfect compliance which ultimately triggered the granting of the
stay was with respect to a voluntary undertaking by the Crown rather than with respect to an order of the
trial judge or a clear legal obligation is a factor that should not be ignored.

89 Finally, although the non-disclosure of the diagrams prepared by the witnesses, as well as certain of
Ms. Harvey's computer files, apparently contravened the Crown's good faith undertaking to the defence,
it was unclear whether any of this information contained materially different versions of that which had
already been disclosed to the defence. In fact, while Mr. Jones did concede that he could not assure the
court that full disclosure had been made in conformity with the Crown's undertaking, he resolutely took
the position, after having reviewed some of the impugned documents, that none of the undisclosed
records were material. Nor, for that matter, was there any evidence of improper motive on the part of the
Crown. I hasten to add that a finding that the non-disclosures were material might have supported an
inference that the Crown was actively hiding information that was material to the defence. In the instant
case, however, absent any inquiry into the materiality of the non-disclosures, the most that can be said is
that the non-disclosures arose as a result of inadvertence or lack of communication on the part of the two
Crown counsel, or because Crown counsel undertook to bite off more voluntary disclosure than it could
chew. There is no proof, moreover, that any delays were attributable to Crown non-disclosure. If indeed
there were such delays, then it is relevant to note that, since the accused was not incarcerated pending
trial, these delays would not have prolonged the duration of the accused's imprisonment.

90 Bearing these factors in mind, I would make the following conclusions. First, although the Crown's
conduct was shoddy and inappropriate, the non-disclosure cannot be said to have violated the accused's
right to full answer and defence. Contrary to the impression held by the trial judge, a review of the
transcripts reveals that the Crown did not at any time concede either materiality or prejudice to the
defence. The most the Crown admitted was that defence counsel might be at a disadvantage because it
had only had a short time during which to review the most recently disclosed documents. At its highest,
moreover, the prejudice actually identified by the trial judge was that the non-disclosed diagrams were
relevant in that they might have affected the preparation of the cross-examination of one of the
witnesses. Cross-examination of that witness had not yet even begun. Although I am sympathetic to the
difficulties of preparing an effective cross-examination, I cannot agree that an accused's right to full
answer and defence has probably been infringed merely because of the possibility that a cross-
examination of a witness, which has not yet begun, may have to be reformulated. Without any inquiry
into the materiality of the non-disclosed information, it was, therefore, impossible for the trial judge to
conclude that the non-disclosure had, on the balance of probabilities, prejudiced the accused's ability to
make full answer and defence.

91 Second, it must be recalled that the whole issue of disclosure in this case arose out of Campbell
A.C.J.'s order requiring that the Crown "disclose" records in the hands of third parties and that the
complainants authorize production of such records. This order was issued without any form of inquiry
into their relevance, let alone a balancing of the privacy rights of the complainants and the accused's right
to a fair trial. We all agree that this order was wrong. Although the error was compounded by the
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Crown's inept and ineffective efforts to have this order reviewed and modified, it is clear, at the end of
the day, that the Crown was right in trying to protect the interests of justice. The fact that it did so in
such a clumsy way should not result in a stay of proceedings, particularly so when no prejudice was
demonstrated to the fairness of the accused's trial or to his ability to make full answer and defence. Thus,
even if I had found a violation of s. 7, this cannot be said to be one of the "clearest of cases" which would
mandate a stay of proceedings.

92 To summarize, I am satisfied that the evidence in the present case did not support the finding of a
violation under s. 7 of the Charter and, moreover, it did not reasonably support Thackray J.'s view that
the only appropriate course of action under the circumstances was to stay the proceedings against the
accused.

II. Production of Private Records

A. Judgment of the Court of Appeal

93 On May 16, 1994, the Court of Appeal released additional reasons in O'Connor (No. 2), supra. In
those reasons, it set out guidelines governing applications for production of medical records of potential
witnesses, which are not in the possession of the Crown. It recommended a two-stage procedure (at p.
261):

At the first stage, the applicant must show that the information contained in the medical records is
likely to be relevant either to an issue in the proceeding or to the competence of the witness to
testify. If the applicant meets this test, then the documents meeting that description must be
disclosed to the court.

The second stage involves the court reviewing the documents to determine which of them are
material to the defence, in the sense that, without them, the accused's ability to make full answer and
defence would be adversely affected. If the court is satisfied that any of the documents fall into this
category, then they should be disclosed to the parties, subject to such conditions as the court deems
fit.

The court noted that it would often only be possible to make the ultimate determination as to relevance and
materiality at the point in the trial when the issue to which the information is said to be relevant or material is
addressed.

94 The court then held that while a liberal interpretation of the word "relevant" is to be encouraged, due
regard must also be had for other legitimate legal and societal interests, notably the privacy interests of
complainants in sexual assault cases and the danger that the evidence will be unprobative and
misleading. As such, consideration should be had for this Court's remarks in R. v. Seaboyer, 1991
CanLII 76 (SCC), [1991] 2 S.C.R. 577, as well as for the factors set out in s. 276(3) of the Criminal
Code.

95 The Court of Appeal then reviewed grounds for disclosure which, in its view, would not meet the
test for relevance. It would be insufficient, for instance, to invoke credibility "at large". A simple
submission that the records may relate to "recent complaint" would be equally inadequate. So, too,
would be a claim that the defence hopes to find lack of corroboration or the existence of a prior
inconsistent statement, since this would amount to a fishing expedition into a person's private records.
Equally insufficient would be an assertion of relevance based on the mere fact that a witness has received
counselling or psychiatric assistance as a consequence of an alleged sexual assault. The fact of having
received such counselling could not, moreover, justify a conclusion that the witness's evidence may be
unreliable.

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96 The Court of Appeal then turned to a consideration of appropriate procedures to guide the parties on
an application for pre-trial production of medical records held by third parties. It made the following
points (at pp. 267-68):

-- the application for disclosure should ideally be supported by affidavits;

-- notice should be given to Crown counsel, to the third party in possession, and to the complainant
or other witness with a privacy interest in the records;

-- the application should be heard by the trial judge whenever possible;

-- at the hearing, persons with an interest in the records are entitled to present argument relating to
issues of privacy and privilege, and to give evidence with respect to the relevance and
materiality of the records in question;

-- the judge will review the records to determine materiality, a procedure which may be done in
camera or under a publication ban where the materials involved are of a sensitive nature;

-- if the threshold test is not met, the records shall be sealed and retained in the file in the event they
need to be reviewed later;

-- any party to the original application may apply for a variation of the disclosure or non-disclosure
order on proper grounds, and further application may be made if new evidence arises
subsequently.

The court declined to discuss the issue of privilege, both because full disclosure was made in this case, and
because no basis in relevance or materiality was established for the production of the records.

B. Analysis of Production Guidelines

97 Determining the nature and extent of production to the defence of a complainant's medical and
therapeutic records, as well as any other documents in which the complainant holds a reasonable
expectation of privacy, is a difficult and potentially value-laden exercise. I commend the initiative taken
by the Court of Appeal in setting down its thoughtful approach to the issue. It can be seen that I approve
of and adopt many of their observations and suggestions in the forthcoming pages.

98 As a preliminary matter, it should be noted that the issue before us relates to the production of
private records held by third parties. We are not concerned here with the extent of the Crown's obligation
to disclose private records in its possession, or with the question whether privacy and equality interests
may militate against such disclosure by the Crown. Although my colleagues Lamer C.J. and Sopinka J.
deal with these questions at great length in their reasons, I prefer not to pronounce on these issues as they
do not arise in this appeal and were not argued before us. Any comment on these questions would be
strictly obiter.

99 The question of production of private records not in the possession of the Crown arises in a wide
variety of contexts. Although many of these contexts involve medical and therapeutic records of
complainants to sexual assault, it will become apparent that the principles and guidelines outlined herein
are equally applicable to any record, in the hands of a third party, in which a reasonable expectation of
privacy lies. Although the determination of when a reasonable expectation of privacy actually exists in a
particular record (and, if so, to what extent it exists) is inherently fact- and context-sensitive, this may
include records that are medical or therapeutic in nature, school records, private diaries, and activity logs
prepared by social workers, to name just a few. For the sake of convenience, information that is
generically of this nature shall hereafter be referred to as "private records held by third parties".
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(i) Basic Principles Governing Disclosure and Production

100 The basic principles governing disclosure were most recently summarized by this Court in R. v.
Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727. It is now clearly established that the Crown is
under a general duty to disclose all information, whether inculpatory or exculpatory, except evidence that
is beyond the control of the prosecution, clearly irrelevant, privileged or subject to a right of privacy.
However, where the Crown disputes the existence of the information sought by the defence, then the
defence must first establish a basis which could enable the presiding judge to conclude that there is in
existence further material which may be useful to the accused in making full answer and defence:
Chaplin, supra, at pp. 743-45.

101 Though the obligation on the Crown to disclose has found renewed vigour since the advent of the
Charter, in particular s. 7, this obligation is not contingent upon there first being established any
violation of the Charter. Rather, full and fair disclosure is a fundamental aspect of the Crown's duty to
serve the Court as a faithful public agent, entrusted not with winning or losing trials but rather with
seeing that justice is served: Stinchcombe, supra, at p. 333. For this reason, as I have already mentioned,
although a disclosure order can be a constitutional remedy, the obligation on the Crown to disclose all
information in its possession that is not clearly irrelevant, privileged or subject to a right of privacy
undoubtedly has force independent of any violation of the accused's s. 7 rights. Because of the Crown's
unique obligations, both to the court and to the public, it, alone, owes a duty to disclose to the defence.
This duty does not extend to third parties. Similarly, the obligation upon the Crown to disclose all
relevant material does not extend to records which are not within its possession or control. See, also, R.
v. Gingras (1992), 1992 CanLII 2826 (AB CA), 71 C.C.C. (3d) 53 (Alta. C.A.).

102 Given that there is no duty on third parties to disclose, it has been suggested that s. 698 of the Code
provides the basis upon which a court may order production of third parties' private records. In
particular, ss. 698 and 700 authorize the issuance of a subpoena ad testificandum or a subpoena duces
tecum to any person that is likely to give material evidence. With respect, however, I believe that this
argument rests on a misunderstanding of the nature of the subpoena powers in s. 698.

103 Although a subpoena duces tecum requires that a witness who is the object of the subpoena bring the
requested documents into court, the subpoena does not automatically call for an order requiring the
documents to be produced to the court for inspection, let alone to the defence. Production will only be
ordered if the documents are likely to be relevant and if production is appropriate, having regard to all of
the relevant considerations. In exercising its discretion to order production, the court must, of course,
have regard to the Charter rights of the accused and the other interests at stake, including any claims of
privilege or a right to privacy which the subject or guardian of the records might successfully assert in
respect of those documents.

104 One of the Charter values to be weighed is the "right" to disclosure, which is in reality an adjunct of
the s. 7 right to make full answer and defence. Though the right to full answer and defence is generally
asserted in the context of material non-disclosure by the Crown, we must recall that a purposive approach
to the Charter requires that due consideration also be given to the effect of the exercise of discretion on
an individual's rights. In particular, an effects-oriented approach to s. 7 dictates that when an accused is
unable to make full answer and defence to the charges brought against him as a result of his inability to
obtain information that is material to his defence, it is of little concern whether that information is in the
hands of the state or in the hands of a third party. The effect is still potentially to deprive an individual of
his liberty while denying him the ability to make full answer and defence.

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105 An order for production of private records held by third parties does not arise as a remedy under s.
24(1) of the Charter since, at the moment of the request for production, the accused's rights under the
Charter have not been violated. Nonetheless, when deciding whether to order production of private
records, the court must exercise its discretion in a manner that is respectful of Charter values: Dagenais,
supra, at p. 875. In particular, the nature, scope and breadth of the production order will ultimately
depend upon a balancing of Charter rights which seeks to ensure that any adverse effects upon one right
is proportionate to the salutary effects of the constitutional objective being furthered: Dagenais, at p. 890.

(ii) The Competing Constitutional Rights at Issue

106 In formulating an approach to govern production of private records held by third parties, it is
important to appreciate fully the nature of the various interests at issue. I will describe briefly each of the
three constitutional rights that I believe to be implicated in this analysis: (1) the right to full answer and
defence; (2) the right to privacy; and (3) the right to equality without discrimination.

(a) The Right to a Fair Trial

107 Much has been written about the right to a fair trial. An individual who is deprived of the ability to
make full answer and defence is deprived of fundamental justice. However, full answer and defence, like
any right, cannot be considered in the abstract. The principles of fundamental justice vary according to
the context in which they are invoked. For this reason, certain procedural protections might be
constitutionally mandated in one context but not in another: R. v. Lyons, 1987 CanLII 25 (SCC), [1987]
2 S.C.R. 309, at p. 361. Moreover, though the Constitution guarantees the accused a fair hearing, it does
not guarantee the most favourable procedures imaginable: Lyons, supra, at p. 362. Finally, although
fairness of the trial and, as a corollary, fairness in defining the limits of full answer and defence, must
primarily be viewed from the point of view of the accused, both notions must nevertheless also be
considered from the point of view of the community and the complainant: E. (A.W.), supra, at p. 198.
There is no question that the right to make full answer and defence cannot be so broad as to grant the
defence a fishing licence into the personal and private lives of others. The question is therefore not
whether the defence can be limited in its attempts to obtain production of private records held by third
parties, but how it can be limited in a manner that accords appropriate constitutional protection to all of
the constitutional rights at issue.

108 When the defence seeks production of third party records whose contents it is not aware of, the
defence is obviously in a position of some difficulty. In assessing whether this difficulty poses a threat of
constitutional proportions to the accused's ability to make fair answer and defence, however, one thing
must be borne in mind. Given that these records are not in the possession of the Crown and have not
constituted a basis for its investigations, they do not, by definition, constitute part of the state's "case to
meet" against the accused. Unlike sealed wiretap packages, which represent the fruits of state
investigation of the accused, private records in the hands of third parties are not subject to such a
presumption of materiality.

109 I would note, finally, that an important element of trial fairness is the need to remove discriminatory
beliefs and bias from the fact-finding process: Seaboyer, supra. As I pointed out in R. v. Osolin, 1993
CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 622-23, for instance, the assumption that private
therapeutic or counselling records are relevant to full answer and defence is often highly questionable, in
that these records may very well have a greater potential to derail than to advance the truth-seeking
process:

...medical records concerning statements made in the course of therapy are both hearsay and
inherently problematic as regards reliability. A witness's concerns expressed in the course of therapy
after the fact, even assuming they are correctly understood and reliably noted, cannot be equated
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with evidence given in the course of a trial. Both the context in which the statements are made and
the expectations of the parties are entirely different. In a trial, a witness is sworn to testify as to the
particular events in issue. By contrast, in therapy an entire spectrum of factors such as personal
history, thoughts, emotions as well as particular acts may inform the dialogue between therapist and
patient. Thus, there is serious risk that such statements could be taken piecemeal out of the context
in which they were made to provide a foundation for entirely unwarranted inferences by the trier of
fact. [Emphasis added.]

(b) The Right to Privacy

110 This Court has on many occasions recognized the great value of privacy in our society. It has
expressed sympathy for the proposition that s. 7 of the Charter includes a right to privacy: Beare, supra,
at p. 412; B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1
S.C.R. 315, at p. 369, per La Forest J. On numerous other occasions, it has spoken of privacy in terms of
s. 8 of the Charter: see, e.g., Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v.
Pohoretsky, 1987 CanLII 62 (SCC), [1987] 1 S.C.R. 945; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2
S.C.R. 417. On still other occasions, it has underlined the importance of privacy in the common law:
McInerney v. MacDonald, 1992 CanLII 57 (SCC), [1992] 2 S.C.R. 138, at pp. 148-49; Hill v. Church of
Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130.

111 On no occasion has the relationship between "liberty", "security of the person", and essential human
dignity been more carefully canvassed by this Court than in the reasons of Wilson J. in R. v. Morgentaler,
1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30. In her judgment, she notes that the Charter and the right to
individual liberty guaranteed therein are tied inextricably to the concept of human dignity. She urges that
both "liberty" and "security of the person" are capable of a broad range of meaning and that a purposive
interpretation of the Charter requires that the right to liberty contained in s. 7 be read to "guarantee[] to
every individual a degree of personal autonomy over important decisions intimately affecting their
private lives" (p. 171). Concurring on this point with the majority, she notes, as well, that `security of the
person' is sufficiently broad to include protection for the psychological integrity of the individual.

112 Equally relevant, for our purposes, is Lamer J.'s recognition in Mills, supra, at p. 920, that the right to
security of the person encompasses the right to be protected against psychological trauma. In the context
of his discussion of the effects on an individual of unreasonable delay contrary to s. 11(b) of the Charter,
he noted that such trauma could take the form of

stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of
factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the
outcome and sanction.

If the word "complainant" were substituted for the word "accused" in the above extract, I think that we would
have an excellent description of the psychological traumas potentially faced by sexual assault complainants.
These people must contemplate the threat of disclosing to the very person accused of assaulting them in the first
place, and quite possibly in open court, records containing intensely private aspects of their lives, possibly
containing thoughts and statements which have never even been shared with the closest of friends or family.

113 In the same way that this Court recognized in Re B.C. Motor Vehicle Act, supra, that the "principles
of fundamental justice" in s. 7 are informed by fundamental tenets of our common law system and by ss.
8 to 14 of the Charter, I think that the terms "liberty" and "security of the person" must, as essential
aspects of a free and democratic society, be animated by the rights and values embodied in the common
law, the civil law and the Charter. In my view, it is not without significance that one of those rights, s. 8,
has been identified as having as its fundamental purpose "to protect individuals from unjustified state
intrusions upon their privacy" (Hunter, supra, at p. 160). The right to be secure from unreasonable
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search and seizure plays a pivotal role in a document that purports to contain the blueprint of the
Canadian vision of what constitutes a free and democratic society. Respect for individual privacy is an
essential component of what it means to be "free". As a corollary, the infringement of this right
undeniably impinges upon an individual's "liberty" in our free and democratic society.

114 A similarly broad approach to the notion of liberty has been taken in the United States. In Board of
Regents of State Colleges v. Roth, 408 U.S. 564 (1972), at pp. 571-72, the United States Supreme Court
affirmed that "liberty" was a "broad and majestic term" and that "[i]n a Constitution for a free people,
there can be no doubt that the meaning of "liberty" must be broad indeed". More significant for our
purposes, the right to privacy was expressly found to reside in the term "liberty" in the Fourteenth
Amendment in the landmark case of Roe v. Wade, 410 U.S. 113 (1973). In a similar vein, the right to
personal privacy has also received recognition in international documents such as Article 17 of the
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Article 12 of the Universal
Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), and Article 8 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S.
221.

115 Privacy has traditionally also been protected by the common law, through causes of action such as
trespass and defamation. In Hill, supra, which dealt with a Charter challenge to the common law tort of
defamation, Cory J. reiterates the constitutional significance of the right to privacy (at para. 121):

...reputation is intimately related to the right to privacy which has been accorded constitutional
protection. As La Forest J. wrote in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p.
427, privacy, including informational privacy, is "(g)rounded in man's physical and moral autonomy"
and "is essential for the well-being of the individual". The publication of defamatory comments
constitutes an invasion of the individual's personal privacy and is an affront to that person's dignity.
The protection of a person's reputation is indeed worthy of protection in our democratic society and
must be carefully balanced against the equally important right of freedom of expression. [Emphasis
added.]

116 Quebec, for its part, has inserted into its new Civil Code, S.Q. 1991, c. 64, arts. 35 and 36, which read
as follows:

35. Every person has a right to the respect of his reputation and privacy.

No one may invade the privacy of a person without the consent of the person or his heirs unless
authorized by law.

36. The following acts, in particular, may be considered as invasions of the privacy of a person:

(1) entering or taking anything in his dwelling;

(2) intentionally intercepting or using his private communications;

(3) appropriating or using his image or voice while he is in private premises;

(4) keeping his private life under observation by any means;

(5) using his name, image, likeness or voice for a purpose other than the legitimate information
of the public;

(6) using his correspondence, manuscripts or other personal documents.

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As well, s. 5 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, reads:

5. Every person has a right to respect for his private life.

117 It is apparent, however, that privacy can never be absolute. It must be balanced against legitimate
societal needs. This Court has recognized that the essence of such a balancing process lies in assessing
reasonable expectation of privacy, and balancing that expectation against the necessity of interference
from the state: Hunter, supra, at pp. 159-60. Evidently, the greater the reasonable expectation of privacy
and the more significant the deleterious effects flowing from its breach, the more compelling must be the
state objective, and the salutary effects of that objective, in order to justify interference with this right.
See Dagenais, supra.

118 In R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, albeit in the context of a discussion of s.
8 of the Charter, a majority of this Court identified one context in which the right to privacy would
generally arise in respect of documents and records (at p. 293):

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the
Charter should seek to protect a biographical core of personal information which individuals in a
free and democratic society would wish to maintain and control from dissemination to the state.
This would include information which tends to reveal intimate details of the lifestyle and personal
choices of the individual. [Emphasis added.]

Although I prefer not to decide today whether this definition is exhaustive of the right to privacy in respect of all
manners of documents and records, I am satisfied that the nature of the private records which are the subject
matter of this appeal properly brings them within that rubric. Such items may consequently be viewed as
disclosing a reasonable expectation of privacy which is worthy of protection under s. 7 of the Charter.

119 The essence of privacy, however, is that once invaded, it can seldom be regained. For this reason, it
is all the more important for reasonable expectations of privacy to be protected at the point of disclosure.
As La Forest J. observed in Dyment, supra, at p. 430:

...if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after
it has been violated. This is inherent in the notion of being secure against unreasonable searches and
seizures. Invasions of privacy must be prevented, and where privacy is outweighed by other societal
claims, there must be clear rules setting forth the conditions in which it can be violated. [Emphasis
in last sentence added.]

In the same way that our constitution generally requires that a search be premised upon a pre-authorization
which is of a nature and manner that is proportionate to the reasonable expectation of privacy at issue (Hunter,
supra; Thomson Newspapers, supra), s. 7 of the Charter requires a reasonable system of "pre-authorization" to
justify court-sanctioned intrusions into the private records of witnesses in legal proceedings. Although it may
appear trite to say so, I underline that when a private document or record is revealed and the reasonable
expectation of privacy therein is thereby displaced, the invasion is not with respect to the particular document or
record in question. Rather, it is an invasion of the dignity and self-worth of the individual, who enjoys the right
to privacy as an essential aspect of his or her liberty in a free and democratic society.

(c) The Right to Equality Without Discrimination

120 Unlike virtually every other offence in the Criminal Code, sexual assault is a crime which
overwhelmingly affects women, children and the disabled. Ninety percent of all victims of sexual assault
are female: Osolin, supra, at p. 669, per Cory J. Moreover, studies suggest that between 50 and 80
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percent of women institutionalized for psychiatric disorders have prior histories of sexual abuse (T.
Firsten, "An Exploration of the Role of Physical and Sexual Abuse for Psychiatrically Institutionalized
Women" (1990), unpublished research paper, available from Ontario Women's Directorate). Children are
most highly vulnerable (Sexual Offences Against Children (the Badgley Report), vol. 1 (1984)).

121 It is a common phenomenon in this day and age for one who has been sexually victimized to seek
counselling or therapy in relation to this occurrence. It therefore stands to reason that disclosure rules or
practices which make mental health or medical records routinely accessible in sexual offence
proceedings will have disproportionately invasive consequences for women, particularly those with
disabilities, and children. In particular, in determining questions of disclosure of records of persons
allegedly assaulted in institutions where they get psychiatric assistance, the courts must take care not to
create a class of vulnerable victims who have to choose between accusing their attackers and maintaining
the confidentiality of their records.

122 This Court has recognized the pernicious role that past evidentiary rules in both the Criminal Code
and the common law, now regarded as discriminatory, once played in our legal system: Seaboyer,
supra. We must be careful not to permit such practices to reappear under the guise of extensive and
unwarranted inquiries into the past histories and private lives of complainants of sexual assault. We must
not allow the defence to do indirectly what it cannot do directly under s. 276 of the Code. This would
close one discriminatory door only to open another.

123 As I noted in Osolin, supra, at pp. 624-25, uninhibited disclosure of complainants' private lives
indulges the discriminatory suspicion that women and children's reports of sexual victimization are
uniquely likely to be fabricated. Put another way, if there were an explicit requirement in the Code
requiring corroboration before women or children could bring sexual assault charges, such a provision
would raise serious concerns under s. 15 of the Charter. In my view, a legal system which devalues the
evidence of complainants to sexual assault by de facto presuming their uncreditworthiness would raise
similar concerns. It would not reflect, far less promote, "a society in which all are secure in the
knowledge that they are recognized at law as human beings equally deserving of concern, respect and
consideration" (Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143,
at p. 171).

124 Routine insistence on the exposure of complainants' personal backgrounds has the potential to reflect
a built-in bias in the criminal justice system against those most vulnerable to repeat victimization. Such
requests, in essence, rest on the assumption that the personal and psychological backgrounds and profiles
of complainants of sexual assault are relevant as to whether or not the complainant consented to the
sexual contact, or whether the accused honestly believed that she consented. Although the defence must
be free to demonstrate, without resort to stereotypical lines of reasoning, that such information is actually
relevant to a live issue at trial, it would mark the triumph of stereotype over logic if courts and lawyers
were simply to assume such relevance to exist, without requiring any evidence to this effect whatsoever.

125 It is revealing, for instance, to compare the approach often taken to private records in sexual assault
trials with the approach taken in three decisions in which private files were sought by defence counsel in
situations which did not involve sexual assaults. In Gingras, supra, the defence in a murder case sought
disclosure of the prison file of an important Crown witness, who was serving time in a penitentiary in
another province. The credibility of the witness was invoked as being at issue. In addition to finding
important irregularities in the disclosure order, the Court concluded that the disclosure request amounted
to no more than a fishing expedition and therefore quashed the order, notwithstanding the seriousness of
the charge against the accused.

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126 In both R. v. Gratton, [1987] O.J. No. 1984 (Prov. Ct.), and R. v. Callaghan, [1993] O.J. No. 2013
(Ont. Ct. (Prov. Div.)), an accused charged with assault of a police officer sought disclosure of the
officer's personnel files and, in particular, any files relating to complaints or disciplinary actions taken
against the officer. In both cases, the justification offered for this disclosure was to show that the officer
had a propensity for violence. In both cases, in the absence of any evidence as to the likelihood that the
records would contain evidence to the predisposition to violence or unreasonable use of force, the judge
refused to give disclosure of those files. The contents of the files were characterized as hearsay, as
potentially based on unfounded allegations, and as generally irrelevant. The only disclosure granted was
of a file containing details of the formal investigation of the particular complaint filed by the accused in
relation to activity which was the subject matter of the charges.

127 I see no reason to treat a sexual assault complainant any differently, or to accord any less respect to
her credibility or privacy, than that which was accorded police officers and convicted criminals in the
above-mentioned cases.

128 All of these factors, in my mind, justify concluding not only that a privacy analysis creates a
presumption against ordering production of private records, but also that ample and meaningful
consideration must be given to complainants' equality rights under the Charter when formulating an
appropriate approach to the production of complainants' records. Consequently, I have great sympathy
for the observation of Hill J. in R. v. Barbosa (1994), 1994 CanLII 7549 (ON SC), 92 C.C.C. (3d) 131
(Ont. Ct. (Gen. Div.)), to this effect (at p. 141):

In addressing the disclosure of records, relating to past treatment, analysis, assessment or care of a
complainant, it is necessary to remember that the pursuit of full answer and defence on behalf of an
accused person should be achieved without indiscriminately or arbitrarily eradicating the privacy of
the complainant. Systemic revictimization of a complainant fosters disrepute for the criminal justice
system. [Emphasis added.]

(iii) Balancing Competing Values

129 As Lamer C.J. recently noted for the majority in Dagenais, supra, at p. 877, competing constitutional
considerations must be balanced with particular care:

A hierarchical approach to rights, which places some over others, must be avoided, both when
interpreting the Charter and when developing the common law. When the protected rights of two
individuals come into conflict... Charter principles require a balance to be achieved that fully
respects the importance of both sets of rights.

Notwithstanding my agreement with this proposition, I would emphasize that the imagery of conflicting rights
which it conjures up may not always be appropriate. One such example is the interrelation between the equality
rights of complainants in sexual assault trials and the rights of the accused to a fair trial. The eradication of
discriminatory beliefs and practices in the conduct of such trials will enhance rather than detract from the
fairness of such trials. Conversely, sexual assault trials that are fair will promote the equality of women and
children, who are most often the victims.

130 From my earlier remarks, moreover, it should be clear that I am satisfied that witnesses have a right
to privacy in relation to private documents and records (i.e. documents and records in which they hold a
reasonable expectation of privacy) which are not a part of the Crown's "case to meet" against the
accused. They are entitled not to be deprived of their reasonable expectation of privacy except in
accordance with the principles of fundamental justice. In cases such as the present one, any interference
with the individual's right to privacy comes about as a result of another person's assertion that this
interference is necessary in order to make full answer and defence. As important as the right to full
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answer and defence may be, it must co-exist with other constitutional rights, rather than trample them:
Dagenais, supra, at p. 877. Privacy and equality must not be sacrificed willy-nilly on the altar of trial
fairness.

131 The proper approach to be taken in contexts involving competing constitutional rights may be
analogized from Dagenais, at p. 891. In particular, since an applicant seeking production of private
records from third parties is seeking to invoke the power of the state to violate the privacy rights of other
individuals, the applicant must show that the use of the state power to compel production is justified in a
free and democratic society. If it is not, then the other person's privacy rights will have been infringed in
a manner that is contrary to the principles of fundamental justice.

132 The use of state power to compel production of private records will be justified in a free and
democratic society when the following criteria are applied. First, production should only be granted
when it is shown that the accused cannot obtain the information sought by any other reasonably available
and effective alternative means. Second, production which infringes upon a right to privacy must be as
limited as reasonably possible to fulfil the right to make full answer and defence. Third, arguments
urging production must rest upon permissible chains of reasoning, rather than upon discriminatory
assumptions and stereotypes. Finally, there must be a proportionality between the salutary effects of
production on the accused's right to make full answer and defence as compared with the deleterious
effects on the party whose private records are being produced. The measure of proportionality must
reflect the extent to which a reasonable expectation of privacy vests in the particular records, on the one
hand, and the importance of the issue to which the evidence relates, on the other. Moreover, courts must
remain alive to the fact that, in certain cases, the deleterious effects of production may demonstrably
include negative effects on the complainant's course of therapy, threatening psychological harm to the
individual concerned and thereby resulting in a concomitant deprivation of the individual's security of the
person.

133 All of the above considerations must be borne in mind when formulating an appropriate approach to
the difficult issue raised in this appeal. Using these ground rules to structure our analysis, it is now
possible to elaborate upon an approach to production of third parties' private records that, it is hoped, will
maintain the greatest possible degree of proportionality in reconciling the equally important
constitutional concerns of full answer and defence, privacy, and equality without discrimination.

(iv) Procedure for Obtaining Production

134 I would give substance to the general principles elaborated above by way of the following process.
The first step for an accused who seeks production of private records held by a third party is to obtain
and serve on the third party a subpoena duces tecum. When the subpoena is served, the accused should
notify the Crown, the subject of the records, and any other person with an interest in the confidentiality
of the records that the accused will ask the trial judge for an order for their production. Then, at the trial,
the accused must bring an application supported by appropriate affidavit evidence showing that the
records are likely to be relevant either to an issue in the trial or to the competence to testify of the subject
of the records. If the records are relevant, the court must balance the salutary and deleterious effects of
ordering that the records be produced to determine whether, and to what extent, production should be
ordered.

(a) Subpoena duces tecum and Notice to Interested Parties

135 The form of the subpoena duces tecum and the procedure for its issuance are described in Part XXII
of the Criminal Code. In particular, a subpoena will not issue unless the applicant shows that the witness
is likely to give material evidence in the proceeding: s. 698(1). The function of the subpoena is to
summon the witness -- in this case, the guardian of the records -- to court and to require the witness to
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bring the documents described in the subpoena. It does not, in itself, require the witness to produce the
records to the court or to the defence.

136 When the subpoena is served, the accused should give written notice to anyone with an interest in the
confidentiality of the records that a motion will be brought for an order for production of the records.
Interested persons include the Crown, the person who is the subject of the records, the guardian of the
records, and any other person required by statute to be notified. Failure to give notice to all interested
parties will be fatal to the application, although the accused may reapply and, as a matter of convenience,
notice to the guardian of the records may accompany the subpoena duces tecum.

(b) Application for Production

137 At the trial, when the accused applies for an order for production of the records, the judge should
follow a two-stage approach. First, the accused must demonstrate that the information contained in the
records is likely to be relevant either to an issue in the proceedings or to the competence to testify of the
person who is the subject of the records. If the information does not meet this threshold of relevance,
then the analysis ends here and no order will issue. However, if the information is likely relevant to an
issue at trial or to the competence of the subject to testify, the court must weigh the positive and negative
consequences of production, with a view to determining whether, and to what extent, production should
be ordered. At each stage counsel for all interested parties should be permitted to make submissions.

(1) Relevance

138 At the outset, the accused must establish a basis which could enable the presiding judge to conclude
that there is actually in existence further material which may be useful to the accused in making full
answer and defence, in the sense that it is logically probative (Chaplin, supra, at pp. 743-45). In other
words, the accused must satisfy the court that the information contained in the records is likely to be
relevant either to an issue in the proceeding or to the competence of the subject to testify (O'Connor No.
2, supra).

139 It may be useful at this stage for the third party guardian of the records to prepare a list of the records
in its possession. In an appropriate case, the trial judge may require such a list to be provided to the
accused and the other interested parties. This was done, for example, in Barbosa, supra, albeit in the
somewhat different context of a request by the Crown to withhold disclosure of records in its own
possession. In that decision, Hill J. made the following comments about the utility of an inventory of
records (at p. 136):

The existence of an inventory not only promotes procedural efficiency during argument of an
application of this type, but also has the advantage of potentially permitting defence counsel to focus
the subject-matter of his application to a population of documents less than the whole of those in the
custody of the relevant custodian. On occasion, such an inventory promotes further informal
discussions between defence and Crown counsel leading to further disclosure without review by the
court.

140 However, I wish to emphasize that, like any other motion, an application for an order for production
of private records held by a third party must be accompanied by affidavit evidence which establishes to
the judge's satisfaction that the information sought is likely to be relevant. The accused's demonstration
that information is likely to be relevant must be based on evidence, not on speculative assertions or on
discriminatory or stereotypical reasoning.

141 The Chief Justice and Sopinka J. argue that accused persons are placed in a difficult situation by the
requirement that they prove the likely relevance of the documents without having access to them. My
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colleagues point to the decisions of this Court in Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2
S.C.R. 637, Dersch v. Canada (Attorney General), 1990 CanLII 3820 (SCC), [1990] 2 S.C.R. 1505
(especially at pp. 1513-14), R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, and R. v.
Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469, and conclude that the standard of "likely
relevance" should not be interpreted as an onerous burden. I would begin by noting that Carey arose in
the context of a civil action in which neither the right to full answer and defence nor any constitutional
right of privacy were engaged; it therefore has no application here. As for Dersch, Garofoli and Durette,
a majority of this Court held in those cases that an accused is entitled to have access to information used
by police to obtain a wiretap authorization because, without such access, the accused cannot realistically
challenge the legality of the surveillance. However, in those cases, the accused sought access to records
created by the state as part of its investigation; that situation can hardly be compared to the situation of
an accused who demands access to therapeutic or other private records created and held by a third party.
The records here in question are not within the possession or control of the Crown, do not form part of
the Crown's "case to meet", and were created by a third party for a purpose unrelated to the investigation
or prosecution of the offence. In my opinion, it cannot be assumed that such records are likely to be
relevant, and if the accused is unable to show that they are, then the application for production must be
rejected as it amounts to nothing more than a fishing expedition.

142 The burden on an accused to demonstrate likely relevance is a significant one. For instance, it would
be insufficient for the accused to demand production simply on the basis of a bare, unsupported assertion
that the records might impact on "recent complaint" or the "kind of person" the witness is. Similarly, the
applicant cannot simply invoke credibility "at large", but must rather provide some basis to show that
there is likely to be information in the impugned records which would relate to the complainant's
credibility on a particular, material issue at trial. Equally inadequate is a bare, unsupported assertion that
a prior inconsistent statement might be revealed, or that the defence wishes to explore the records for
"allegations of sexual abuse by other people". Such requests, without more, are indicative of the very
type of fishing expedition that this Court has previously rejected in other contexts. See, in the context of
cross-examination on sexual history, Osolin, supra, at p. 618, per L'Heureux-Dubé J. dissenting, and
Seaboyer, supra, at p. 634, per McLachlin J. for the majority; in the context of search and seizure, Baron
v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, at p. 448, per Sopinka J. for the Court, and
Hunter, supra, at p. 167, per Dickson J. (as he then was) for the Court; in the context of wiretaps and
their supporting affidavits, Chaplin, supra, at p. 746, per Sopinka J. for the Court, Durette, supra, at p.
523, per L'Heureux-Dubé J. dissenting, R. v. Thompson, 1990 CanLII 43 (SCC), [1990] 2 S.C.R. 1111, at
p. 1169, per La Forest J. dissenting, and R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p.
55, per La Forest J. for the majority. See also Cross on Evidence (7th ed. 1990), at pp. 51 et seq.;
Halsbury's Laws of England (4th ed. 1976), vol. 17, para. 5, at p. 7.; Wigmore on Evidence (3rd ed.
1940), vol. 1, para. 9, at pp. 655 et seq.

143 Similarly, the mere fact that a witness has a medical or psychiatric record cannot be taken as
indicative of the potential unreliability of his or her testimony. Any suggestion that a particular
treatment, therapy, illness, or disability implies unreliability must be informed by cogent evidence, rather
than stereotype, myth or prejudice. For these reasons, it would also be inappropriate for judicial notice to
be taken of the fact that unreliability may be inferred from any particular course of treatment. See R. v.
K. (V.) (1991), 1991 CanLII 5761 (BC CA), 4 C.R. (4th) 338 (B.C.C.A.), at pp. 350-51.

144 Finally, it must not be presumed that the mere fact that a witness received treatment or counselling
after a sexual assault indicates that the records will contain information that is relevant to the defence.
The focus of therapy is vastly different from that of an investigation or other process undertaken for the
purposes of the trial. While investigations and witness testimony are oriented toward ascertaining
historical truth -- namely, the facts surrounding the alleged assault -- therapy generally focuses on
exploring the complainant's emotional and psychological responses to certain events, after the alleged
assault has taken place. Victims often question their perceptions and judgment, especially if the assailant
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was an acquaintance. Therapy is an opportunity for the victim to explore her own feelings of doubt and
insecurity. It is not a fact-finding exercise. Consequently, the vast majority of information noted during
therapy sessions bears no relevance whatsoever or, at its highest, only an attenuated sense of relevance to
the issues at trial. Moreover, as I have already noted elsewhere, much of this information is inherently
unreliable and, therefore, may frustrate rather than further the truth-seeking process. Thus, although the
fact that an individual has sought counselling after an alleged assault may certainly raise the applicant's
hopes for a fruitful fishing expedition, it does not follow, absent other evidence, that information found in
those records is likely to be relevant to the accused's defence.

145 Unlike my colleagues Lamer C.J. and Sopinka J., I would not take the "sheer number" of cases in
which production has been ordered in the past as a demonstration of the potential relevance of
therapeutic records. Whatever may have been their past practice in this regard, judges should be
encouraged to carefully scrutinize claims of relevance in a manner that is sensitive to the therapeutic
context and the nature of records created in that context. Without such sensitivity, the danger is great that
records having no real relevance will be produced, the search for truth frustrated, and the rights of
complainants needlessly violated.

146 In establishing the required evidentiary basis, the applicant may resort to the Crown's disclosure, to
its own witnesses, and to cross-examination of the Crown witnesses at both the preliminary inquiry and
the trial. On some occasions, it may also be necessary to introduce expert evidence to lay the foundation
for a production application (for instance, expert evidence to the effect that a certain type of therapy may
lead to "created memories"). The determination of relevance is a fluid, rather than fixed, process. In
consequence, information which cannot be proved relevant at one point during the trial may later become
relevant, in which case a further application for production may be warranted. However, regardless of
when it is brought, an application for production will not succeed if it is not supported by evidence
demonstrating the likely relevance of the records.

147 I would like to make two final observations on the subject of relevance. The first of these relates to
the Court of Appeal's comment that relevance should be determined with due regard for "other legitimate
legal and societal interests, including the privacy interests of complainants" (O'Connor (No. 2), at pp.
261-62). In my view, the privacy rights of complainants should be considered separately, rather than
factored into the analysis of relevance. It is important to remember that the rationale underlying resort to
privilege or privacy rights is diametrically opposed to that underlying most ordinary evidentiary rules of
exclusion. Privilege and privacy interests would exclude evidence despite the fact that such evidence
might further the truth-seeking process. On the other hand, ordinary rules of exclusion are generally
motivated by the desire to further the truth-seeking process, in that they tend to exclude evidence which
might be unreliable, which might mislead or prejudice the trier of fact, or which might otherwise
prejudice the fairness of the trial. Consequently, it is both easier and more intellectually honest to
consider privacy and societal interests in a separate, balancing step.

148 However, as I have already noted, consideration for equality is not alien to the objectives of finding
the truth and conducting a fair trial. On the contrary, all of these objectives dictate that a court be
precluded from drawing inferences on the basis of discriminatory or stereotypical lines of reasoning. For
instance, it is impermissible to seek production of records containing reference to other sexual activity to
support the inference that because the complainant has engaged in unrelated sexual activity she is more
likely to have consented to the activity in question, or less worthy of belief: Seaboyer, supra.

149 My second observation relates to the competence to testify of the subject of the records. A witness is
presumed competent to testify until otherwise shown. Incompetence to testify can be shown in many
ways, such as calling a doctor who has treated the witness, which do not require disclosure of private
medical records. If competence is the basis for defence counsel's application for production of private

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medical records, then the court should first consider if there are any other reasonable alternatives of
testing the witness's competence which would constitute a lesser invasion into the witness's privacy.

(2) Balancing

150 If the trial judge concludes that the records are not likely to be relevant to an issue in the trial or to
the competence to testify of the subject of the records, the application should be rejected. If, on the other
hand, the judge decides that they are likely to be relevant, then the analysis proceeds to the second stage,
which has two parts. First, the trial judge must balance the salutary and deleterious effects of ordering
the production of the records to the court for inspection, having regard to the accused's right to make full
answer and defence, and the effect of such production on the privacy and equality rights of the subject of
the records. If the judge concludes that production to the court is warranted, he or she should so order.

151 The Chief Justice and Sopinka J. appear to share my view that the balancing of the effects of
production should be undertaken only at this second stage of the procedure, after the records have been
found to be likely relevant. However, they contend that the trial judge need not consider competing
interests, such as the privacy rights of the subject of the records, before ordering them produced to the
court for inspection. This is not my position. What my colleagues fail to recognize is that even an order
for production to the court is an invasion of privacy. The records here in question are profoundly
intimate, and any violation of the intimacy of the records can have serious consequences for the dignity
of the subject of the records and, in some cases, for the course of his or her therapy. Neither the subject
nor the guardian of the records should be compelled to violate the intimacy of the records unless the
judge has determined, after careful consideration, that the salutary effects of doing so outweigh the
damage done thereby.

152 In borderline cases, the judge should err on the side of production to the court. The trial judge, in
examining the materials, will guard the privacy of the witness to the best of his or her ability.
Nevertheless, reading and vetting large quantities of material that have been ordered produced to the
court out of an abundance of caution can impose an excessive burden on judicial resources, especially if
only a small proportion of the records produced to the court are ultimately produced to the defence.
Consequently, while borderline cases at this stage should be decided in favour of production to the court,
the determination of relevance and balancing should be meaningful, fair and considered. This carefully
considered balancing will prevent documents from being needlessly produced.

153 Next, upon their production to the court, the judge should examine the records to determine whether,
and to what extent, they should be produced to the accused. This step requires the court anew, but with
the benefit of the inspection of the documents, to consider the likely relevance and salutary and
deleterious effects as previously but with production to the accused in mind.

154 I have some difficulties with the Court of Appeal's position to the effect that the judge may simply
disclose to the defence any evidence which is "material". The problem with such an approach is that it
effectively does away with any consideration for privacy, or for larger societal interests. A fair legal
system requires respect at all times for the complainant's personal dignity, and in particular his or her
right to privacy, equality and security of the person. As the Chief Justice said in Dagenais, supra, in the
context of a publication ban, the common law should not accord pre-eminence to the right to a fair trial,
over other constitutionally entrenched rights (at p. 877):

The pre-Charter common law rule governing publication bans emphasized the right to a fair
trial over the free expression interests of those affected by the ban. In my view, the balance this rule
strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by
the Charter to ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a
common law rule that automatically favoured the rights protected by s. 11(d) over those protected by
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s. 2(b). A hierarchical approach to rights, which places some over others, must be avoided, both
when interpreting the Charter and when developing the common law. When the protected rights of
two individuals come into conflict, as can occur in the case of publication bans, Charter principles
require a balance to be achieved that fully respects the importance of both sets of rights.

Similarly, as regards the production of private records held by third parties, a balance must be struck that places
the Charter rights of complainants on an equal footing with those of accused persons.

155 In Dagenais, the Court assessed proportionality by examining and weighing the salutary and
deleterious effects of the rights infringements in question. I believe that such a process was already
implicit in Seaboyer, in which this Court sought to achieve a measure of proportionality between the
right to privacy and the right to a fair trial. In my view, an analogous approach is appropriate in the
disclosure context. Once a court has reviewed the records, production should only be ordered in respect
of those records, or parts of records, that have significant probative value that is not substantially
outweighed by the danger of prejudice to the proper administration of justice or by the harm to the
privacy rights of the witness or to the privileged relation. See also Stuesser, "Reconciling Disclosure and
Privilege" (1994), 30 C.R. (4th) 67, at pp. 71-72.

156 Although this list is not exhaustive, the following factors should be considered in this determination:
(1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the
probative value of the record in question; (3) the nature and extent of the reasonable expectation of
privacy vested in that record; (4) whether production of the record would be premised upon any
discriminatory belief or bias; (5) the potential prejudice to the complainant's dignity, privacy or security
of the person that would be occasioned by production of the record in question; (6) the extent to which
production of records of this nature would frustrate society's interest in encouraging the reporting of
sexual offences and the acquisition of treatment by victims; and (7) the effect on the integrity of the trial
process of producing, or failing to produce, the record, having in mind the need to maintain consideration
in the outcome.

157 According to the Chief Justice and Sopinka J., society's interest in encouraging victims of sexual
assault to report the offences and to obtain treatment "is not a paramount consideration" (para. 33), and
the effect of production on the integrity of the trial process should not be considered at all, in assessing
whether the guardians of therapeutic records should be compelled to produce them to the defence. I can
see no reason to reduce the relative importance of these factors, let alone exclude them, when balancing
the salutary and deleterious effects of a production order.

158 This Court has already recognized that society has a legitimate interest in encouraging the reporting
of sexual assault and that this social interest is furthered by protecting the privacy of complainants:
Seaboyer, supra, at pp. 605-6. Parliament, too, has recognized this important interest in s. 276(3)(b) of
the Criminal Code. While Seaboyer and s. 276(3)(b) relate to the admissibility of evidence regarding the
past sexual conduct of the complainant, the same reasoning applies here. The compelled production of
therapeutic records is a serious invasion of complainants' privacy which has the potential to deter sexual
assault victims from reporting offences or, if they do report them, from seeking treatment.

159 As Lamer C.J. and Sopinka J. observe, measures exist for limiting the extent of the invasion of
privacy associated with a production order. However, despite such measures, the compelled production
of therapeutic records to the defence remains a serious violation of the complainant's privacy and a
deterrent to the reporting of offences and the acquisition of treatment. At the same time, production may
affect the integrity of the trial process. Judges must carefully weigh these consequences when deciding
whether to make an order for production.

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160 As a further argument in favour of a less onerous burden upon the accused, the Chief Justice and
Sopinka J. compare the accused to a state agent applying for a search warrant under s. 487(1)(b) of the
Criminal Code. They state that, by virtue of s. 487(1)(b), "production of third party records is always
available to the Crown" (para. 34) where there are reasonable grounds to believe that evidence will be
found. Because the interpretation of s. 487(1)(b) is not an issue in this appeal, I will keep my comments
to a minimum. However, I must disagree with my colleagues' suggestion that the Crown can always
obtain a warrant for production of the therapeutic records of innocent third parties simply by establishing
"reasonable grounds". On the contrary, in a decision penned by the Chief Justice (then Lamer J.), this
Court has held that a judge may refuse a search warrant, even if the statutory requirement of "reasonable
grounds" is met, in order to protect the fundamental rights of innocent third parties: Descôteaux v.
Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at pp. 889-91. Therefore, it should not be
assumed that the state could obtain a warrant in respect of intimate records held by innocent third parties
as easily as the Chief Justice and Sopinka J. now suggest. Nor, in my view, should the accused be
entitled to compel production of such records without a rigorous inquiry into the relevance of the records
and the salutary and deleterious effects of compelling their production.

161 I would add that where the defence seeks to justify disclosure on the basis of anticipated relevance to
particular issues, some inquiry is warranted into whether or not these issues are collateral to the real
issues at trial. Since the defence cannot pursue inconsistencies on collateral issues, the defence is really
no better off having production on that issue. It follows that failure to produce information relating only
to collateral issues will not impair the accused's right to full answer and defence. See, e.g., R. v. C. (B.)
(1993), 1993 CanLII 8564 (ON CA), 80 C.C.C. (3d) 467 (Ont. C.A.); R. v. Davison, DeRosie and
MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.).

162 At the opposite end of the spectrum, where material is found that is essential to the accused's ability
to make full answer and defence, then justice dictates that this material be produced, even if this
information was not argued as a basis for production by the defence. However, in some such cases,
sensitivity to the complainant's privacy rights and security of the person might dictate that the
complainant be given the option of withdrawing from the prosecution rather than facing production of
the records in question.

163 In that vein, where a court concludes that production is warranted, it should only be made in the
manner and to the extent necessary to achieve that objective: Dagenais, supra. The court should not
release classes of records, but rather should inspect each individual record for materiality. Records that
are to be produced should be vetted with a view to protecting the witness's privacy, while nonetheless
maintaining sufficient detail to make the contents meaningful to the reader. The judge may, in certain
cases, wish to hear submissions on whether the vetting of the records should be assisted by counsel for
the complainant, for the guardian of the records, or for the Crown. It will generally be appropriate,
moreover, to review the records in camera, and to keep the records sealed and in the custody of the
registrar. Depending upon the sensitivity of the records, the court should consider prohibiting the making
of any reproductions of those records and imposing a publication ban on such terms as are deemed
appropriate. In exceptional cases, the court may consider making an order prohibiting defence counsel
from discussing the contents of these records with the accused. Finally, I agree with the Court of Appeal
that it is appropriate that all records produced to the court but not ultimately to the defence be sealed and
retained in the file in the event that they should need to be reviewed later. These procedures are part and
parcel of the process of ensuring that privacy rights are minimally impaired while nonetheless furthering
the objective of guaranteeing the accused full answer and defence and a fair trial.

(v) Admissibility

164 I cannot emphasize enough that the guidelines outlined above are clearly not synonymous with the
test for admissibility of evidence at trial, outlined in Seaboyer and in s. 276 of the Code. Disclosure and
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production are broader concepts than admissibility and, as such, evidence which is produced to the
defence will not necessarily be admissible at trial.

165 Indeed, in most cases, private records relating to the counselling or treatment of the complainant will
be irrelevant and inadmissible hearsay evidence. Notes of statements made by a complainant in a
therapeutic context are inherently unreliable because they are frequently not prepared contemporaneously
with the statements, are not intended to be an accurate record of the statements, and are not ratified by
the complainant. Moreover, they touch on a variety of topics not relevant to the issues at trial or the
complainant's competence to testify. As I have observed earlier in these reasons, there is a real risk that
statements having little or no real relevance may be taken out of context as a basis for unwarranted
inferences.

166 In any event, the admissibility of the records as evidence must be determined if and when the accused
seeks to introduce them. The fact that records have been ordered produced to the defence does not mean
that the records are necessarily admissible.

167 I now turn to the last issue argued before this Court, which is the question of the proper forum for an
application for production, and the timing of such an application.

(vi) Forum and Timing

(a) Preliminary Inquiry

168 In Doyle v. The Queen, 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597, this Court stated that the powers
of a preliminary inquiry judge are only those conferred either expressly by statute or by necessary
implication. Since there is no explicit statutory authority for an order requiring third parties to produce
private records to the defence at a preliminary inquiry, the power to make such an order, if it exists, must
be necessarily incidental to some other statutory power.

169 The primary function of the preliminary inquiry, which is clearly set out in s. 548(1) of the Code, is
undoubtedly to ascertain that the Crown has sufficient evidence to commit the accused to trial. See also
Caccamo v. The Queen, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786. Over time, however, the
preliminary inquiry appears to have taken upon itself an ancillary purpose, which is to afford the accused
an opportunity to discover and appreciate the case to be made against him at trial: Skogman v. The
Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93. This judicially inspired expansion of the nature and
ambit of the preliminary inquiry has been attributed by learned commentators to the historical lack of any
formal, institutionalized procedures by which an accused could obtain full and effective disclosure of the
Crown's case. (See Re Regina and Arviv (1985), 1985 CanLII 161 (ON CA), 19 C.C.C. (3d) 395 (Ont.
C.A.), at p. 403, per Martin J.A., leave to appeal refused, [1985] 1 S.C.R. v.)

170 Although preliminary inquiry judges are not permitted to determine the credibility of witnesses, one
might hazard to say that the ancillary purpose of "discovery" has lately begun to eclipse the primary
purpose of sparing the accused the gross indignity of being placed on trial in circumstances where there
is simply insufficient evidence to justify holding the trial at all. One provincial court judge, in the course
of a thoughtful discussion on the evolving role of the preliminary inquiry, recently expressed great
frustration with this apparent turn of events:

...the preliminary hearing or preliminary inquiry has been turned into a nightmarish experience for
any provincial court judge. Rules with respect to relevancy have been widened beyond recognition.
Cross-examination at a preliminary inquiry now seems to have no limits. Attempts by provincial
court judges to limit cross-examination have been perceived by some superior courts as a breach of

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the accused's right to fundamental justice, a breach of his or her ability to be able to make full
answer and defence.

The present state of the preliminary inquiry is akin to a rudderless ship on choppy waters.
The preliminary hearing has been turned into a free-for-all, a living hell for victims of crime and
witnesses who are called to take part in this archaic ritual.

(R. v. Darby, [1994] B.C.J. No. 814 (Prov. Ct.), at paras. 9 and 10.)

171 Nevertheless, the "discovery" aspect of the preliminary inquiry remains, at most, an incidental aspect
of what is in essence an inquiry into whether the Crown's evidence is sufficient to warrant the committal
of the accused to trial. We must also recognize that the law of disclosure in Canada changed
significantly as a result of this Court's decision in Stinchcombe, supra. Stinchcombe recognized that a
rigorous duty exists on the Crown to disclose to the defence all information in its possession, both
inculpatory and exculpatory, which is not clearly irrelevant or privileged. While the Crown retains a
discretion as to what is "clearly irrelevant", this discretion is reviewable by the trial judge at the instance
of the defence. In short, Stinchcombe marked the dawn of a new era in disclosure to the defence, by
transforming a professional courtesy into a formal obligation. Failure by the Crown to comply with this
obligation may, particularly when motivated by an intention to withhold relevant information, result in
the drastic remedy of a stay of proceedings. Consequently, in light of Stinchcombe and other decisions of
this Court that have elaborated on those disclosure guidelines (R. v. Egger, 1993 CanLII 98 (SCC),
[1993] 2 S.C.R. 451; Chaplin, supra), it may be necessary to reassess the extent to which the "discovery"
rationale remains appropriate as a consideration in the conduct of the modern-day preliminary inquiry.

172 The more limited question for the purposes of this appeal, however, is whether the judge at a
preliminary inquiry may consider applications for production of private records held by third parties.

173 It is beyond doubt that the statutory powers of a preliminary inquiry judge include the power to order
witnesses to give evidence. Section 545 of the Code, for example, contemplates that a preliminary
inquiry judge may require a witness to produce documents. However, the jurisdiction of a judge at a
preliminary inquiry must be interpreted in light of the essential purpose of the inquiry, which is to assess
whether the Crown has sufficient evidence to warrant committing the accused to trial. The preliminary
inquiry judge does not have the power to inquire into other matters, or to order the production of
documents which are not related to this assessment.

174 In Patterson v. The Queen, 1970 CanLII 180 (SCC), [1970] S.C.R. 409, for instance, this Court held
that a preliminary inquiry judge had no power to compel production of a statement made to police by a
prosecution witness. It is apparent that the Court was of the view that production of such a statement
was not related to the purpose of the preliminary inquiry. On behalf of the majority, Judson J. stated (at
p. 412):

The purpose of a preliminary inquiry is clearly defined by the Criminal Code -- to determine
whether there is sufficient evidence to put the accused on trial. It is not a trial and should not be
allowed to become a trial. We are not concerned here with the power of a trial judge to compel
production during the trial nor with the extent to which the prosecution, in fairness to an accused
person, ought to make production after the preliminary hearing and before trial.

(See also Re Hislop and The Queen (1983), 1983 CanLII 1971 (ON CA), 7 C.C.C. (3d) 240 (Ont. C.A.), leave to
appeal refused, [1983] 2 S.C.R. viii.) Similarly, I do not see how private records in the hands of third parties
could ever be relevant to the issues at a preliminary inquiry.

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175 In addition, it is crucial not to lose sight of the fundamental rationale for allowing an accused to
obtain production of private records. The records are not part of the Crown's case against the accused;
consequently, the purpose of ordering their production is not to give the accused advance notice of the
case to meet. Nor would the records be produced for the purpose of providing possible leads for the
defence's own "investigation" -- third parties have no obligation to assist the defence in this manner.
Rather, the sole basis on which third parties may be compelled to produce the records to the defence is
that it would be unfair for an accused to be convicted if, as a result of evidence having significant
probative value being unjustifiably withheld from the defence, the accused were unable to put this
evidence before the trier of fact.

176 Since a preliminary inquiry is not a final determination of guilt, this fundamental rationale for
ordering production is inapplicable. It follows that, while production of the records at the preliminary
inquiry would no doubt be useful to the defence, there is no constitutional imperative at that stage that
would justify an infringement of the privacy rights of the subject of the records.

177 For these reasons, I am of the view that a preliminary inquiry judge is without jurisdiction to order
the production of private records held by third parties.

(b) Pre-trial Applications

178 The disclosure order in the present case, however, did not emanate from a preliminary inquiry judge.
Rather, it was issued in response to a pre-trial application by the defence before Campbell A.C.J., who
was not seized of the trial. There is no question that Campbell A.C.J. had jurisdiction to make the order
requested. However, for the following reasons, it is my view that even a superior court judge should not,
in advance of the trial, entertain an application for production of private third party records.

179 In the first place, such applications should be heard by the judge seized of the trial, rather than a pre-
trial judge. In R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, this Court had occasion to
examine the reviewability of a pre-trial severance order issued by a judge who was not seized of the
trial. Although it noted that the collateral attack rule ordinarily precluded a trial judge from reviewing
orders made by judges of concurrent jurisdiction, it concluded that the rationales of the collateral attack
rule did not apply in the case of a pre-trial division and severance order. More significantly, for our
purposes, it went on to discuss practical and policy reasons why it was most desirable for only the judge
seized of the trial to make orders of this nature (at p. 353):

Not only are trial judges better situated to assess the impact of the requested severance on the
conduct of the trial, but limiting severance orders to trial judges avoids the duplication of efforts to
become familiar enough with the case to determine whether or not a severance order is in the
interests of justice.

Orders for production of private records held by third parties are, in my view, governed by similar logic.

180 In addition, it is desirable for the judge hearing an application for production to have had the benefit
of hearing, and pronouncing upon, the defence's earlier applications, so as to minimize the possibility of
inconsistency in the treatment of two similar applications. Otherwise, the possibility of such
inconsistency raises the spectre of situations in which production is ordered by a pre-trial judge under
circumstances later discovered to be unfounded at trial. The privacy rights of the complainant will have
been infringed for naught.

181 More generally, for the following reasons, it is my view that applications for production of third party
records should not be entertained before the commencement of the trial, even by the judge who is seized
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of the trial. First, the concept of pre-trial applications for production of documents held by third parties
is alien to criminal proceedings. In criminal matters, witnesses can only be compelled to give evidence
at trial. A prospective witness is not obliged to cooperate with either the Crown or the defence before the
trial, and a court should not compel the witness to provide the defence with a preview of his or her
evidence. I am not persuaded that prospective defence witnesses in sexual assault cases should be treated
any differently.

182 Second, if pre-trial applications for production from third parties were permitted, it would invite
fishing expeditions, create unnecessary delays, and inconvenience witnesses by requiring them to attend
court on multiple occasions. Moreover, a judge is not in a position, before the beginning of the trial, to
determine whether the records in question are relevant, much less whether they are admissible, and will
be unable to balance effectively the constitutional rights affected by a production order (see R. v. S.
(R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451, and British Columbia Securities Commission v.
Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3).

183 Proponents of a pre-trial procedure argue that without such a procedure, an accused might not obtain
access to important records until it is too late. However, the situation would be no different in any other
trial in which a witness has refused to cooperate with the defence. I cannot emphasize enough that the
records here in question do not form part of the Crown's case against the accused, and that the accused
consequently has no right to advance notice of their contents. Nor does the accused have any right to
search the records for potential leads. The sole ground on which third parties may be compelled to
produce the records to the defence is if they have probative value in respect of the issues in the trial, or
the competence to testify of the subject of the records, that is not significantly outweighed by prejudice
to the administration of justice or to the subject's privacy and equality rights. I am not persuaded that this
purpose requires that the accused have access to the documents in advance of the trial.

184 For these reasons, I am firmly of the view that applications for production of private records held by
third parties should only be entertained at the trial.

III. Summary

185 In summary, on the issue of abuse of process for non-disclosure by the Crown, I conclude that there
is no need to maintain any type of distinction between the common law doctrine of abuse of process and
Charter requirements regarding abusive conduct. On the facts of this case, no such abusive conduct by
the Crown has been demonstrated and a stay of proceedings was not appropriate.

186 On the issue of production of private records held by third parties, courts must balance the right of an
accused to a fair trial with the competing rights of a complainant to privacy and to equality without
discrimination. Since this exercise has not been done in this case, I agree with the Court of Appeal that a
new trial should be ordered.

IV. Conclusion and Disposition

187 Since I am of the opinion that the Court of Appeal was correct in concluding that the trial judge erred
in staying the proceedings against the appellant, I would dismiss the appeal and dispose of this matter in
the manner suggested by the Court of Appeal.

The reasons of Cory and Iacobucci JJ. were delivered by

188 CORY J. -- The actions of Crown counsel originally responsible for the prosecution of this case were
extremely high‑handed and thoroughly reprehensible. Nonetheless, I cannot agree with Justice Major
that the misdeeds of the Crown were such that, upon a consideration of all the circumstances of this case,
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the drastic remedy of a stay was merited. Like Justice L'Heureux-Dubé and the Court of Appeal for
British Columbia, I do not think that this is one of those clearest of cases which merits the imposition of
the ultimate remedy of a stay.

189 I agree with the result reached by L'Heureux-Dubé J. and many of her conclusions pertaining to
privacy and privilege. However, I concur with the reasons of the Chief Justice and Justice Sopinka with
respect to their holding that the principles set forth in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3
S.C.R. 326, affirmed in R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, pertaining to the
Crown's duty to disclose must apply to therapeutic records in the Crown's possession.

190 I further agree with the Chief Justice and Sopinka J. as to the procedure they suggest for determining
whether records in the possession of third parties are likely to be relevant. As well, I am in agreement
with their reasons pertaining to the nature of the onus resting upon the accused and the nature of the
balancing process which must be undertaken by the trial judge.

The following are the reasons delivered by

191 MCLACHLIN J. -- I have read the reasons of my colleagues. I concur entirely in those of Justice
L'Heureux-Dubé and wish only to add this comment in support of the position she adopts.

192 Discovery on criminal cases must always be a compromise. On the one hand stands the accused's
right to a fair trial. On the other stands a variety of contrary considerations. One of these contrary
considerations is the protection of privacy of third parties who find themselves, through no fault of their
own, caught up in the criminal process. Another is the increase in the length and complexity of trials
which exhaustive discovery proceedings may introduce. Both impact adversely and heavily on the
public.

193 The task before us on this appeal is to devise a test for the production of records held by third parties
which preserves the right of an accused to a fair trial while respecting individual and public interest in
privacy and the efficient administration of justice. The key to achieving this lies in recognition that the
Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a
trial which is fundamentally fair: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562. What
constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits
of the system of justice and the lawful interests of others involved in the process, like complainants and
the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice
is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but
fundamentally fair justice.

194 Perfect justice in the eyes of the accused might suggest that an accused person should be shown every
scintilla of information which might possibly be useful to his defence. From the accused's perspective,
the catalogue would include not only information touching on the events at issue, but anything that might
conceivably be used in cross-examination to discredit or shake a Crown witness. When other
perspectives are considered, however, the picture changes. The need for a system of justice which is
workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the
privacy interests of those who find themselves caught up in the justice system -- all these point to a more
realistic standard of disclosure consistent with fundamental fairness. That, and nothing more, is what the
law requires.

195 I believe the test proposed by L'Heureux-Dubé J. strikes the appropriate balance between the desire
of the accused for complete disclosure from everyone of everything that could conceivably be helpful to
his defence, on the one hand, and the constraints imposed by the trial process and privacy interests of
third parties who find themselves caught up in the justice system, on the other, all without compromising
the constitutional guarantee of a trial which is fundamentally fair.

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196 I would dispose of the appeal as proposed by L'Heureux-Dubé J.

The following are the reasons delivered by

197 MAJOR J. (dissenting) -- I have read the reasons of Justice L'Heureux-Dubé, and agree that common
law abuse of process has been subsumed in the Canadian Charter of Rights and Freedoms and should
not be considered separately unless circumstances arise to which the Charter does not apply, which is not
the case in this appeal. The party alleging abuse of process must prove on a balance of probabilities that
a violation of the Charter has occurred. Upon proving this, a variety of remedies are available under s.
24(1).

198 With respect, I am unable to agree that a stay of proceedings was not appropriate. The conduct of the
Crown in this case both impaired the ability of the accused to make full answer and defence and
contravened fundamental principles underlying the community's sense of fair play and decency. This is
so having regard to the failure of the Crown to disclose information within its control to alleged offences
that were many years old. The remedy of a stay was within the trial judge's discretion and was
appropriate under the circumstances.

I. History of Crown Conduct

199 The circumstances giving rise to the complaints in this case occurred between January 1, 1964 and
November 1, 1967. The appellant was charged by indictment dated November 6, 1991, 24 years after the
last incident alleged. The long delay in charges being laid made the gathering of evidence difficult for
both the Crown and defence. Some witnesses were dead or incompetent and some records were lost.
The defence was entitled to assistance and consideration as it sought to uncover evidence from so long
ago.

200 The case was also unusual in that the accused was, at the time of the alleged offences, a teacher and
member of the clergy. Almost 30 years later when the charges had been laid he had become a Bishop of
the Roman Catholic Church. It was important that because of the high degree of public interest in the
case created by the position of the accused and the nature of the allegations that the accused receive the
same treatment by the Crown as any accused person has the right to expect.

201 It is important in this case not to isolate instances of Crown conduct which, by themselves, are mere
irritations or embarrassments. It is when the incidents are seen as a pattern of conduct that the "aura"
mentioned by the trial judge becomes evident and the suggestion of it all being a comedy of errors
disappears. It is relevant to summarize the actions and lack thereof by the Crown.

202 In the early stages of investigation Constable Grinstead of the RCMP taped interviews with the
complainants. At this point the accused had not yet been charged. Three of these tapes were disclosed to
defence counsel in 1991. There were more tapes in the possession and control of the Crown which were
not disclosed at that time.

203 On December 16, 1991, the complainant M.B. and a witness, M.O., made statements to Crown
prosecutor Wendy Harvey. The interview with M.O. contained information which tended to conflict with
the statement of M.B. and corroborate the story of the accused. This information was not disclosed to
the accused until November 25, 1992, 11 months after the initial trial date and five days before the trial
date at the time of disclosure.

204 On May 25, 1992, the Crown gave a list of 14 witnesses to the defence with one-line summaries of
what the witnesses would say. The accused should have received entire witness statements. The defence
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raised this matter before Campbell A.C.J. on June 4, 1992.

205 On June 4, 1992, Campbell A.C.J. made the order for disclosure reproduced in the reasons of
L'Heureux-Dubé J. The Crown opposed the application for the order but did not make the policy
arguments mentioned later by Ms. Harvey and by the interveners in this case other than mentioning that
the complainants would have to disclose details of a personal nature. The Crown argued relevance and
the fact that the records were not in their possession. The order granted by Campbell A.C.J. was not
appealed. As a result of the order and the insufficient disclosure of the witness statements the trial was
adjourned to November 30, 1992.

206 On June 16, 1992, Ms. Harvey wrote to two of the complainants' therapists. She included a copy of
the order and described it. Her description narrowed the order to include only information related to
alleged sexual assaults by the accused.

207 On July 8, 1992, Ms. Harvey wrote to the complainant P.P. stating that the Crown had resisted the
application for the disclosure order, that the Crown intended to go before the Justice and ask for direction
and that the Crown was not seeking the records of P.P.'s therapist at that time.

208 On September 21, 1992, Oppal J. expressed surprise that the order had not yet been complied with
and said that the Crown should disclose the records. On October 16, 1992, Thackray J., who had been
appointed trial judge, expressed similar surprise and ordered disclosure again. At that time the trial judge
was given the notes of P.P.'s therapists, which he gave to the accused. On October 30, 1992, the Crown
informed Thackray J. that further disclosure would be forthcoming.

209 On October 30, 1992, the Crown gave the court the records of M.B.'s therapist, Dr. Cheaney. The
Crown asked that these notes not be turned over to the defence until submissions could be made by Ms.
Harvey, who was not present on that day. No such submission had been made by November 19, 1992,
when the defence raised the matter of the records again. Mr. Jones, for the Crown, made submissions
regarding the relevance of the documents in question and mentioned that Ms. Harvey had submissions
concerning victimizing the complainants again by disclosing the documents.

210 Thackray J., observing that the trial was to commence in ten days, ordered production of the
documents in question. Thackray J. also ruled that a diary which the complainant R.R. had used to
refresh her memory at the preliminary hearing was to be given to the court so that he could rule on its
relevance.

211 On November 25, 1992, the defence received, in response to a renewed request for disclosure, the
transcripts of the M.B. and M.O. interviews as well as two tapes of interviews done by the RCMP early
in the investigation. It was also discovered that M.B. had therapists whose names and records had not
been disclosed. The files of Dr. Cheaney were found to be incomplete. The defence also received an
affidavit sworn by Constable Grinstead which alleged that the defence counsel had not attempted to look
at the files held by the RCMP and that all interview tapes had been disclosed the previous year. This
information was not correct.

212 On November 26, 1992, the accused applied for a stay of proceedings, based on non-disclosure by
the Crown. Ms. Harvey explained the Crown's actions by pointing out that the law had recently changed
to overcome myths and biases surrounding victims of sexual assault. She submitted that the order was
difficult to enforce given the problems surrounding traditional stereotypes regarding sexual assault. She
submitted that the order and the requests of the defence counsel for disclosure exhibited gender bias.

213 Ms. Harvey also submitted that the letters to the therapists included the order and that therefore her
faulty summary should not have affected the eventual disclosure of the records. The trial judge pointed
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out that after the therapists were advised of the true meaning of the order, the full files were disclosed.
The trial judge further pointed out that the complainants had authorized production of the records in
question. He said that there was not, in reality, a problem.

214 Thackray J. asked why the Crown had not gone back before Campbell A.C.J. to obtain direction, as
Ms. Harvey had indicated was her intention in her letter to P.P. The Crown replied that it had instead
sought direction from the trial judge. Thackray J. noted that he had ordered production and that the
complainants had been forthcoming after that.

215 Ms. Harvey then explained the delays as partially attributable to the difficulties encountered by
having two prosecutors in two places handling the case. She submitted that R. v. Stinchcombe, 1991
CanLII 45 (SCC), [1991] 3 S.C.R. 326, was a recent decision and that the Crown was still struggling
with how to cope with the new disclosure rules. Ms. Harvey said that she knew at the time that M.B. and
M.O.'s interview transcripts were information that the defence should have had and incredibly suggested
that she must have "dreamt" she gave this information to the defence. Other failures to disclose were
attributed to inadvertence.

216 The application for a stay was denied on November 27, 1992. Thackray J. felt the delay could be
remedied before trial and ordered the Crown to complete disclosure. He ordered that only a portion of
the diary was to be disclosed. Thackray J. said that the Crown submissions were disturbing and
commented on the general incompetence and "dilly-dallying" of the Crown. He adjourned the trial to
December 1, 1992.

217 On November 28, 1992, the Crown agreed to waive privilege regarding its files and undertook to
prepare four binders for the accused containing all information in the Crown's possession. At a pre-trial
conference on November 30, 1992, Ms. Harvey indicated that the defence now had all of the notes she
had prepared in connection with the case. The trial was adjourned an additional day to allow the
accused's counsel time to review the newly disclosed material.

218 On the second day of trial, December 3, 1992, the Crown attempted to have P.P. give evidence
through drawings. It was revealed that the Crown possessed several drawings from pre-trial interviews
by the complainants. These had not been disclosed to the accused. The Crown turned over eight sets of
drawings by the next day but was unable to guarantee that full disclosure had been made.

219 The accused renewed his stay application and the Crown requested an adjournment so that Ms.
Harvey could make submissions. On December 4, 1992, Ms. Harvey was present but made no
submissions. Mr. Jones said that the binders given to the defence were incomplete and that the Crown
could still not guarantee full disclosure had been made. The trial judge gave counsel the weekend to
formulate submissions regarding the stay. When the trial resumed on December 7, 1992, no submissions
were made and the stay was entered: (1992), 18 C.R. (4th) 98.

II. Effects of the Crown's Conduct

220 The actions by the Crown both impaired the accused's ability to make full answer and defence and
contravened fundamental principles of justice underlying the community's sense of fair play and
decency. I shall deal with each category.

A. Full Answer and Defence

221 The actions of the Crown over time included a failure, until immediately before the trial, to comply
with the order of Campbell A.C.J. The respondent submits that this breach is not significant in that the
order was improper and was complied with before the trial and the final stay application.
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222 The impropriety of the court order if any does not excuse the conduct of the Crown after the order
was made. By July 10, 1992, the order had not been complied with, and Low J. was informed that there
were problems in getting the complainants to comply. The court continually expressed surprise that the
order had not been complied with, and reminded the Crown of its obligation to obey court orders. By
October 16, 1992, the records in question were mainly in the possession of the Crown. It was not a
complainant objection which barred disclosure but the fact that the Crown disagreed with the order. The
order still had not been complied with after six months.

223 The Crown never took proper action regarding the objections it had to the order. If the Crown could
not appeal the order it could have, and should have, returned to Campbell A.C.J. to request variation or
rescission of the order if as was suggested by them they had reason to do so. The letter from the Crown
prosecutor Ms. Harvey to the complainant P.P. suggests that this is what the Crown intended. This failure
gives the Crown's submissions about the propriety of the order and policy problems surrounding the
order to justify non-compliance little weight.

224 The letters from Ms. Harvey to the therapists narrowed the scope of the order. It is unclear whether
this was deliberate, given Ms. Harvey's opinion regarding the order, or whether it was an error. As soon
as the order was clarified for the therapists, complete records were disclosed, suggesting that had the
letters contained an accurate description of the order, compliance would have occurred at a much earlier
time. The letter to the complainant P.P. dated July 8, 1992 displayed an intention to disregard the order.

225 The excuses proffered by the Crown were as the trial judge described them, limp. The recent
Stinchcombe decision had nothing to do with obeying a court order for disclosure. The problems
encountered by the two Crown prosecutors operating in different locations are not unusual and cannot
explain the delay in either complying with or applying to vary the order.

226 The fact that by the time of trial the order seems to have been complied with is not much of a
mitigating factor. The conduct of the Crown regarding the court order, in combination with their faulty
disclosure after the trial began, would make it uncertain that the order had in fact been fully obeyed at the
time of trial, notwithstanding what the Crown claimed. On previous occasions the Crown had said that
the terms of the order had been fulfilled when this was not true.

227 The Crown also breached the general duty of disclosure as outlined in Stinchcombe. At the time
Stinchcombe was a relatively new decision and prosecutors were still ascertaining the scope of the duty
contained therein. However, the concepts outlined were clear enough: that the Crown had a general duty
to disclose all relevant information. Sopinka J. set out the following principles in Stinchcombe:

-- the Crown has a legal duty to disclose all relevant information to the defence;

-- the obligation is subject to a Crown discretion regarding information which is "clearly irrelevant"
or subject to privilege, and to the time and manner of disclosure;

-- the Crown's use of the discretion is reviewable by the trial judge, guided by the general principle
that information is not to be withheld if there is a reasonable possibility that this will impair the right
to make full answer and defence;

-- the absolute withholding of relevant information can only be justified on the basis of a legal
privilege.

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228 The Crown's breach of this obligation includes the minimal disclosure of witness statements given to
the accused on May 25, 1992. This was not proper disclosure as directed in Stinchcombe. Defence
counsel prepare for cross-examination of Crown witnesses in three ways. They use information obtained
at preliminary hearings, information supplied by their own witnesses and by the accused, and by the
disclosure in the production of the Crown. The defence was, in this case, impaired to prepare for cross-
examination and in gathering rebuttal evidence by the incomplete disclosure.

229 The interviews with M.B. and with M.O. were statements which should have been disclosed. The
interview with M.O. was particularly important as she was not called at the preliminary hearing, and her
information tended to be exculpatory. The fact that the accused had, through his own sources, discovered
the existence of this information has nothing to do with the breach of the duty of disclosure. This
information was disclosed only when the defence raised the issue before the trial judge, suggesting that
perhaps other information was not disclosed. This is part of the "aura" which the trial judge suggested
had been created by December 7, 1992.

230 Each time disclosure was made in this case it was the result of the defence having to raise the matter
in court. The defence had to find out about the missing information through alternate means. The
defence was left to wonder if information existed about which it knew nothing. In order for the public to
have faith in the justice system it must be able to trust Crown counsel to be forthcoming with such
information. The conduct of the Crown in this case was such that trust was lost, first by the defence, and
finally by the trial judge on December 7, 1992.

231 The drawings at the centre of the final application for a stay of proceedings were not the working
papers of Ms. Harvey. Since the intention of the Crown was to have these complainants give evidence in
the form of drawings these drawings were witness statements. Even if the drawings were not
significantly different from the ones which would have been produced at trial, the defence was entitled to
disclosure. The test is not whether the information reveals contradictions, but merely is the information
relevant. This was relevant material.

232 It is of little consequence on the facts of this case that a considerable amount of the non-disclosed
material was ultimately released piecemeal to the defence prior to the trial. The effect of continual
discovery of more non-disclosed evidence, coupled with the Crown admission that disclosure was
possibly incomplete, created an atmosphere in which the defence's ability to prepare was impaired. The
defence had to repeatedly renew requests for disclosure on the chance that more information was extant.

233 The breach of the undertaking to the defence by the Crown impaired the ability to prepare a full
answer and defence. It does not matter whether this undertaking was unprecedented or whether it went
beyond what is expected of the Crown. The defence was entitled to rely on the undertaking, and did rely
on it, as the trial commenced without comment. Since the previous breaches of the court order and the
general duty had created concern on the part of the accused regarding disclosure, the undertaking by the
Crown was an attempt to remedy the situation. The breach of the undertaking had the opposite effect and
created a suspicious atmosphere in which the defence could not know what evidence the Crown was
going to present.

234 The Crown offered many reasons for delay in disclosure, including a philosophical dispute
regarding the court order, differences of opinion regarding relevance, miscommunication between the
two Crown prosecutors involved, and simple forgetfulness. The Crown behaved in a manner consistent
with the view that it was not aware of or interested in its obligations to the court or the accused.

235 Many of the explanations offered at different times during the proceedings before Thackray J. appear
to be rationalizations for unacceptable conduct after the fact. Each time deficiencies in disclosure were
revealed the Crown assured the court that best efforts would be made to complete disclosure. On some
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occasions the court was told that disclosure was complete when in fact it was not. As the trial judge
mentioned, it became embarrassing to observe the Crown counsel attempt to duck its responsibility with
excuses such as dreaming that interview transcripts had been disclosed.

236 The respondent submitted that where an accused alleges that non-disclosure has impaired his ability
to make full answer and defence, an inquiry into the materiality of the information in question is
necessary. This is arguable in a situation involving a single piece of information. Here we have a history
of non-disclosure over a year, and, where the disclosure problems are continual, the effects of the non-
disclosure must be looked at over the whole period of time in question. This is what the trial judge did.
It was not simply the final non-disclosure of drawings or the incomplete binders supplied to the defence
which the trial judge considered. He considered the history of Crown conduct outlined above.

237 It has frequently been stated that trial judges usually are in the best position to observe the conduct of
both witnesses and counsel for the Crown and the defence. It is particularly true in this case as Thackray
J. was seized of the matter by October 16, 1992, had heard several motions, and had observed the
repeated attempts by the defence to obtain disclosure and the repeated attempts by Crown counsel to
explain its delay in failing to comply with its obligations. The court had become, in the words of
Thackray J., "an integral part of the trial preparation process" (p. 110). The familiarity of the trial judge
with the conduct of the Crown and the material in question make further inquiry into materiality of the
final non-disclosed material less necessary.

238 The respondent submitted that, at its highest, the prejudice suffered by the defence was merely an
effect on the cross-examination of one of the witnesses. This understates the matter; it is not only cross-
examination, but rebuttal evidence which is affected by the non-disclosure of information from or about a
witness. The Crown's submission fails to consider the cumulative effect of the previous non-disclosures
which affected the conduct of the entire defence.

239 The accused faced proceedings in which it had grown unlikely that he would be dealt with fairly by
the Crown. The Crown had breached the common law duty of disclosure, the terms of a court order, and
undertakings to the defence. The Crown's behaviour had created an atmosphere of mistrust. Defence
counsel had repeatedly been taken by surprise, given assurances which were unreliable, and generally
left in the dark. This dramatically impaired the accused to present a full answer and defence. The delay
of the Crown in making disclosure and its inability to assure the trial judge that full disclosure had been
made even after commencement of the trial were fatal to the proceedings.

240 It is the continual breaches by the Crown that made a stay the appropriate remedy. This is not a case
where a further order for disclosure and an adjournment was appropriate. All this had been ordered
earlier in the proceedings without success. Proceedings had become unworkable and unfair. Remedies
under s. 24(1) of the Charter are properly in the discretion of the trial judge. This discretion should not
be interfered with unless the decision was clearly unreasonable. The repeated failure of the Crown to
comply with its duty to disclose and, laterally, its failure to comply with its own undertakings suggest
that if a stay was not granted in this case, it is difficult to imagine a case where a stay would be granted.

B. Fair Play and Decency

241 The same breaches of the disclosure order, the duty under Stinchcombe, and the undertaking to
disclose files to the defence which impaired the accused's right to make full answer and defence also
violated fundamental principles of justice underlying the community's sense of fair play and decency.
The community would see proceedings as being unfair where the Crown continually failed in its
obligations and finally was unable to assure the court that it could ever meet them.

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242 The number and nature of adjournments due to the Crown's conduct is a factor to consider because of
the consequences to the accused. Not only were adjournments necessary because of non-disclosure, but
also because Ms. Harvey, who had requested the opportunity to make submissions regarding disclosure,
was either unavailable or unprepared at the appointed time. In two instances Ms. Harvey failed to make
the promised submission, thus wasting the adjournment granted for that purpose and the timing of the
adjournments was obviously a factor to the trial judge, as several came immediately before and during
the trial.

243 I accept the trial judge's view that there was no "grand design" on the part of the Crown; however, the
motives of the Crown are still questionable. Ms. Harvey obviously disagreed with the court order. Her
actions based on her disagreement were improper. The Crown at times took responsibility for the delays
only grudgingly, offering a litany of "limp" excuses.

244 Non-disclosure is not the only conduct of the Crown which violated fundamental principles of fair
play and decency. The Crown also displayed an intention to disregard complying with a court order.
The Crown breached an undertaking to defence counsel. The Crown gave the court assurances which
turned out to be false. While these actions were tied to the issue of disclosure they also stand on their
own violating fundamental principles underlying the community's sense of fair play and decency and
failed the reasonable expectation of citizens of the expected conduct of the Crown.

245 The affidavit of Constable Grinstead should be considered as well. The affidavit was not explained
by the Crown. The affidavit contained information which was false, namely that the defence counsel had
not bothered to visit the RCMP in Williams Lake to look at file contents. This conduct by another agent
of the Crown added to the "aura" of unfairness expressed by the trial judge.

246 The complete record of non-disclosure, delay, excuses and breaches of obligation by the Crown
violated the fundamental principles which underlie the community's sense of fair play and decency. The
trial judge showed admirable tolerance for the behaviour of the Crown but in the end had no choice but
to order a stay. The case was "now `one of the clearest of cases'. To allow the case to proceed would
tarnish the integrity of the court" (p. 110).

III. Conclusion

247 When a criminal trial gains notoriety because of the nature of the offence, the parties charged or any
other reason, there is an added burden in the paramount interest of ensuring fairness in the process.
Fairness is a concern in every trial, but in high profile proceedings special attention must be paid because
of the danger of extraneous factors interfering with the trial. The judicial system is on display and
counsel for the Crown and the accused must take care to ensure the expected standards of conduct in all
cases are maintained in the exceptional ones.

248 In this case, the facts of the offences alleged were many years in the past. As well, the accused had a
high profile in the community. These ingredients called for a careful prosecution to ensure fairness and
the maintenance of integrity in the process.

249 The Crown should have been scrupulous to its obligations to the court and to the accused. Ms.
Harvey admitted that this was "a case that require[d] a great deal of diligence and professionalism". On
December 7, 1992, it was clear to the trial judge, who had personally witnessed the conduct of the Crown
over a three-month period and was aware of earlier failures to disclose, that the trial was no longer fair
and could not be redeemed.

250 In summary and in chronological order the Crown impaired the ability of the appellant to prepare a
defence in the following way:

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1. In 1991 the Crown failed to disclose to the RCMP interviews with the complainants.

2. On December 16, 1991, the Crown failed to disclose statements made by M.B. and M.O. to
Wendy Harvey.

3. On May 25, 1992, the Crown failed to disclose the complete witness statements in their
possession but substituted one-line summaries.

4. On June 16, 1992, the Crown failed to disclose the letter from Wendy Harvey to therapists
narrowing Campbell A.C.J.'s disclosure order of June 4, 1992.

5. On July 8, 1992, the Crown failed to disclose the letter from Crown Counsel Harvey to P.P.
stating an intention to disregard the June 4, 1992 order.

6. On September 21, 1992, the Crown failed to comply with the order of Oppal J. who expressed
concern and urged compliance.

7. On October 16, 1992, the Crown turned the records of P.P. over to the court. Thackray J. was
concerned about the rest of the records and ordered disclosure.

8. On October 30, 1992, the Crown failed to disclose that Dr. Cheaney's records concerning M.B.
had been turned over to the court, but not to the defence.

9. On November 19, 1992, the Crown failed to disclose its remaining records.

10. On November 30, 1992, the Crown waived privileges and produced four binders of material
based on an undertaking to the defence to disclose its whole file. The Crown indicated disclosure
was now complete.

11. On December 3, 1992, the Crown discovered that it possessed drawings by the complainants
which had not been disclosed. The Crown agreed it was now unable to say that full disclosure had
been made.

12. On December 4, 1992, the Crown admitted that the binders it turned over to the defence were
incomplete.

251 The conduct of the Crown during the time Thackray J. was involved, as well as in the months before
his appointment, was negligent, incompetent and unfair. While I am content to accept Thackray J.'s
interpretation of the Crown's behaviour as being without deliberate intent some concerns remain,
particularly in regard to the continual avoidance of compliance with the court order of June 4, 1992.

252 The trial judge was as stated in the best position to observe the conduct of the Crown and its effect on
the proceedings. He found that the trial had become so tainted that it violated fundamental principles
underlying the community's sense of fair play and decency and that the accused was impaired in his
ability to make full answer and defence.

253 The trial judge carefully balanced the competing public interest in prosecuting offences with the need
for a fair trial. He recognized that an order for a stay could be seen as a technicality, but concluded that
in these unusual circumstances it was the appropriate, and only, remedy. He held that "[e]very citizen is
entitled to the protection of the law, and to have the law meticulously observed" (pp. 110-11). I agree
and would allow the appeal and restore the stay of proceedings.

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254 I concur with the Chief Justice and Justice Sopinka that the Crown's disclosure obligations
established in Stinchcombe are unaffected by the confidential nature of therapeutic records in its
possession. I agree with the substantive law and the procedure recommended in obtaining such records
from third persons.

Appeal dismissed, LAMER C.J., SOPINKA and MAJOR JJ. dissenting.

Solicitors for the appellant: Considine & Lawler, Victoria.

Solicitors for the respondent: Cardinal Edgar Emberton & Macaulay, Victoria.

Solicitor for the intervener the Attorney General of Canada: Robert J. Frater, Ottawa.

Solicitors for the intervener the Attorney General for Ontario: Miriam Bloomenfeld, Janet Gallin
and Susan Chapman, Toronto.

Solicitors for the interveners the Aboriginal Women's Council, the Canadian Association of Sexual
Assault Centres, the DisAbled Women's Network of Canada and the Women's Legal Education and Action
Fund: Sharon D. McIvor, Ottawa, and Elizabeth J. Shilton, Toronto.

Solicitor for the intervener the Canadian Mental Health Association: Frances Kelly, Vancouver.

Solicitor for the intervener the Canadian Foundation for Children, Youth and the Law: Brian
Weagant, Toronto.

Solicitor appointed by the Court as amicus curiae: Elizabeth Bennett, Q.C., Peck Tammen Bennett,
Vancouver.

Federation of Law Societies of Canada

By for the law societies members of the

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Boucher v. The Queen

[1955] SCR 16, 1954 CanLII 3 (SCC)

1/6/2019 CanLII - 1954 CanLII 3 (SCC) 205

Boucher v. The Queen, [1955] SCR 16, 1954 CanLII 3 (SCC)

Date: 1954-12-09
Other 110 CCC 263; 20 CR 1; [1954] SCJ No 54 (QL); [1954] ACS no 54
citations:
Citation: Boucher v. The Queen, [1955] SCR 16, 1954 CanLII 3 (SCC), <http://canlii.ca/t/1nlk7>, retrieved on
2019-01-06

Supreme Court of Canada

Boucher v. The Queen, [1955] S.C.R. 16
Date: 1954-12-09
Ovila Boucher Appellant;
and
Her Majesty The Queen Respondent.
Present: Kerwin C.J. and Taschereau, Rand, Kellock, Estey, Locke, Cartwright, Fauteux and Abbott JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Criminal law—Murder—Alleged misdirection on doctrine of reasonable doubt and circumstantial
evidence—Alleged inflammatory language by Crown counsel to jury—Criminal Code, ss. 1014(2),
1025.
The appellant was found guilty of murder. His appeal to the Court of appeal was unanimously
dismissed. He now appeals to this Court, by special leave, on grounds of misdirection with reference
to reasonable doubt, circumstantial evidence and inflammatory language used by Crown counsel in
his address to the jury.
Held (Taschereau and Abbott JJ. dissenting), that the appeal should be allowed, the conviction
quashed and a new trial ordered.
1. There was no misdirection in the trial judge's charge with respect to the doctrine of reasonable
doubt.
Per Kerwin ,C.J., Kellock, Estey, Locke, Cartwright and Fauteux JJ.: Difficulties would be avoided
if trial judges would use the well known and approved adjective "reasonable" or "raisonnable" when
describing that doubt which is sufficient to require the jury to return a verdict of not guilty.
[Page 17]
2. There was misdirection by the trial judge with reference to the rule as to circumstantial
evidence. Neither the language of Rex v. Hodge ((1838) 1838 CanLII 1 (FOREP), 2 Lewin C.C. 227)
nor anything remotely approaching it was used.
Per Kerwin C.J. and Estey J.: Even though expressions other than the ones used in the Hodge
case are permissible, a trial judge should use the well settled formula and so obviate questions arising
as to what is its equivalent.
3. Crown counsel exceeded his duty when he expressed in his address by inflammatory and
vindictive language his personal opinion that the accused was guilty and left with the jury the
impression that the investigation made before the trial by the Crown officers was such that it had
brought them to the conclusion that the accused was guilty.

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It is improper for counsel for the Crown or the defence to express his own opinion as to the guilt
or innocence of the accused. The right of the accused to have his guilt or innocence decided upon the
sworn evidence alone uninfluenced by statements of fact by the Crown prosecutor, is one of the most
deeply rooted and jealously guarded principles of our law.
4. Per Kerwin C.J., Rand, Kellock, Estey, Cartwright and Fauteux JJ.: It could not be safely
affirmed that had such errors not occurred the verdict would necessarily have been the same.
Per Locke J.: There was a substantial wrong and consequently s. 1014(2) of the Code had no
application.

Per Taschereau and Abbott JJ. (dissenting) : As the verdict would have necessarily been the
same there had been no substantial wrong or miscarriage of justice.
[1]
APPEAL from the judgment of the Court of Queen's Bench, appeal side, province of Quebec ,
affirming the appellant's conviction on a 'charge .of murder.
A. E. M. Maloney, Q.C. and F. de B. Gravel for the accused.
P. Miquelon and P. Flynn for the respondent.
The judgment of Kerwin C.J. and Estey J. was delivered by:—
THE CHIEF JUSTICE:—The first question of law upon which leave to appeal to this Court was
granted is:—
(1) Were the jury misdirected by the learned trial judge with reference to the doctrine of
reasonable doubt?
The trial judge, in my view, did not misdirect the jury, but the difficulties occasioned by what he did say
would not arise if trial judges would use the well-known and
[Page 18]
approved word "reasonable" or "raisonnable" when describing that doubt which is sufficient to enable
a jury to return a verdict of not guilty.
There was clear misdirection by the trial judge with respect to the second question of law which the
appellant was permitted to raise:—
(2) Were the jury misdirected by the learned trial judge with reference to the rule as to
circumstantial evidence?

The evidence against the appellant was entirely circumstantial. "In such cases", as this Court pointed
[2]
out in The King v. Comba , "by the long settled rule of the common law, which is the rule of law in
Canada, the jury, before finding a prisoner guilty upon such evidence, must be satisfied not only that
the circumstances are consistent with a conclusion that the criminal act was committed by the
accused, but also that the facts are such as to be inconsistent with any other rational conclusion than
[3]
that the accused is the guilty person". This, of course, is based upon the decision in Rex v. Hodge ;
[4]
and, while we stated in McLean v. The King , "There is no single exclusive formula which it is the
duty of the trial judge to employ. As a rule he would be well advised to adopt the language of Baron
Alderson or its equivalent.", in this case neither that language, nor anything remotely approaching it
was used. Even though, according to the judgment in McLean, other expressions might be permitted,
the experience of the Courts in Canada in the last few years justifies a further warning that a trial
judge should use the well settled formula and so obviate questions arising as to what is its equivalent.
Because of the misdirection in this case, the conviction cannot stand, unless the Court, exercising the
power conferred upon it by s.s. 2 of s. 1014 of the Criminal Code, considers that there has been no
substantial wrong or miscarriage of justice.
Before dealing with that problem, it is well to set out the third question of law which the appellant was
allowed to argue:—
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(3) Was the appellant deprived of a trial according to law by reason of the fact that the crown
counsel used inflammatory language in his address to the jury?
[Page 19]
It is the duty of crown counsel to bring before the Court the material witnesses, as explained in Lemay
[5]
v. The King . In his address he is entitled to examine all the evidence and ask the jury to come to the
conclusion that the accused is guilty as charged. In all this he has a duty to assist the jury, but he
exceeds that duty when he expresses by inflammatory or vindictive language his own personal
opinion that the accused is guilty, or when his remarks tend to leave with the jury an impression that
the investigation made by the Crown is such that they should find the accused guilty. In the present
case counsel's address infringed both of these rules.

I now turn to s.s. 2 of s. 1014 of the Code. The test to be applied was laid down in Schmidt v. The
[6]
King : "that the .onus rests on the crown to satisfy the Court that the verdict would necessarily have
been the same". While I am inclined to the view that that test has been met, I understand that several
members of the Court think other-wise and, therefore, under the circumstances of this case, I will not
record a dissent.
The judgment of Taschereau and Abbott JJ. (dissenting) was delivered by:‑
TASCHEREAU, J.:‑L'appelant a été accusé d'avoir assassiné un nommé Georges Jabour Jarjour, à
St-Henri, comté de Lévis, le 3 juin 1951, et a été trouvé coupable de meurtre à la suite d'un procès
[7]
devant le jury, présidé par l'honorable Juge Albert Sévigny. La Cour du Banc de la Reine a
unanimement confirmé ce verdict. Après avoir obtenu la permission de l'honorable Juge Kellock de la
Cour Suprême du Canada, l'appelant a inscrit la présente cause devant cette Cour. Ses griefs d'appel
sont les suivants:‑
1. Le juge dans son adresse aux jurés, ne les a pas légalement instruits sur la doctrine du doute
raisonnable.
2. La règle qui doit être suivie dans le cas de preuve circonstantielle [sic] n'a pas été
suffisamment expliquée.
3. L'accusé n'a pas obtenu un procès équitable eu égard aux faits de la cause, étant donné que
l'avocat de la Couronne, dans son adresse aux jurés, a fait usage d'un langage enflammé.
[Page 20]
Je suis d'opinion que le premier motif d'appel n'est pas fondé. Un résumé de ce que le président du
tribunal a exprimé à maintes reprises sur le doute que peuvent entretenir les jurés, se trouve dans
l'extrait suivant de son adresse : ‑
Si la Couronne ne prouve pas le fait, le crime, de façon à établir une certitude morale, une
certitude qui donne la conviction à l'intelligence, une certitude qui satisfait la raison et dirige le
jugement à rendre, et que les jurés ont un doute sérieux sur la culpabilité de l'accusé, c'est leur
devoir et ils sont obligés de donner le bénéfice de ce doute à l'accusé et de le déclarer non
coupable.
Évidemment, le jury a nécessairement compris par ces mots, qu'il devait être satisfait de la culpabilité
de l'accusé, au delà d'un doute raisonnable. Sinon, ce dernier devait en avoir le bénéfice et être
déclaré non coupable.

Le second grief est plus sérieux. Depuis au delà de cent ans, la règle concernant la, direction qui doit
être donnée aux jurés lorsqu'il s'agit de preuve circonstantielle, a été posée clans la cause de
[8]
Hodge . S'adressant aux jurés, le Baron Alderson s'est exprimé ainsi:

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That before they could find the prisoner guilty they must be satisfied, not only that those
circumstances were consistent with his having committed the act, but they must also be satisfied
that the facts were such as to be inconsistent with any other rational conclusion than that the
prisoner was the guilty person.
Cette jurisprudence a depuis été suivie, et il suffit de référer aux causes suivantes pour se convaincre
qu'elle a été constante:-(Wills on Circumstantial Evidence (7th ed. pp. 320 and 321) Rex. v.
[9] [10] [11] [12]
Natanson , Rex. v. Francis and Barber , Rex. v. Petrisor , MacLean v. The King .
Malgré que les tribunaux se sont montrés très sévères sur la nécessité qu'il y a d'instruire le jury clans
le sens indiqué dans la cause de Hodge, il ne s'ensuit pas que la formule soit sacramentelle, et que
l'accusé aura droit à un nouveau procès si les termes exacts ne sont pas employés. (MacLean v. The
King supra) 'Ce serait exiger un trap grand formalisme, et le droit criminel ne va pas jusque là. Il faut
cependant retrouver dans les paroles du juge au procès, au moins l'équivalent, qui fera comprendre
aux jurés que dans
[Page 21]
une cause comme celle qui nous occupe, où la preuve est circonstantielle, pour trouver un accusé
coupable, ils doivent être satisfaits non seulement que les circonstances sont compatibles avec sa
culpabilité, mais qu'elles sont aussi, incompatibles avec toute autre conclusion rationnelle.
Malheureusement, l'équivalent de cette directive qui doit être nécessairement donnée, ne l'a pas été.
Le savant président du tribunal a bien attiré l'attention du jury sur la preuve circonstantielle; il leur a
bien dit qu'elle devait être forte et convaincante, mais il n'a pas, à mon sens, expliqué la véritable
doctrine que j'ai citée plus haut et qu'exige la loi.

L'appelant prétend enfin que la procureur de la 'Couronne, au cours de son adresse au jury, a fait
usage d'un langage enflammé en faisant appel à leurs passions, avec le résultat qu'ils auraient été
entraînés à ne pas juger cette cause comme des hommes raisonnables.
La situation qu'occupe l'avocat de la Couronne n'est pas celle de l'avocat en matière civile. Ses
fonctions sont quasi-judiciaires. Il ne doit pas tant chercher à obtenir un verdict de culpabilité qu'à
assister le juge 'et le jury pour que la justice. la plus complète soit rendue. La modération et
l'impartialité doivent toujours être les caractéristiques de sa conduite devant le tribunal. Il aura en effet
honnêtement rempli son devoir et sera à l'épreuve de tout reproche si, mettant de côté tout appel aux
passions, d'une façon digne qui convient à son rôle, il expose la preuve au jury sans aller au delà de
ce qu'elle a révélé.
Je suis donc 'd'opinion qu'en ce qui concerne les directives du président du tribunal, relatives à la
preuve circonstantielle, il y a eu erreur 'de droit. Je crois également, après avoir analysé l'adresse au
jury du procureur de la Couronne, qu'il y a eu exagérration de langage. Mais je ne crois pas que ces
deux motifs soient suffisants pour ordonner un nouveau procès. L'article 1014 du Code Criminel est
ainsi rédigé, et je pense que dans les circonstances de cette cause, il doit trouver toute son
application :
1014. A l'audition d'un pareil appel d'un' jugement de culpabilité, la cour d'appel doit autoriser le
pourvoi, si elle est d'avis
a) Qu'il y a lieu d'infirmer le verdict du jury pour le motif qu'il est injuste ou non justifié par la
preuve; ou
b) Qu'il y a lieu d'annuler le jugement du tribunal à cause d'une décision erronée sur un
point de droit; ou
[Page 22]
c) Que, pour un motif quelconque, il y a eu déni de justice; et (d) Dans tout autre cas, la
cour doit renvoyer l'appel.
2. La cour peut aussi renvoyer l'appel si, malgré son avis que l'appel pourrait être décidé en
faveur de l'appelant, pour l'un des motifs susmentionnés, elle est aussi d'avis qu'il ne s'est

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produit aucun tort réel ou déni de justice.

Il ne me paraît pas utile d'analyser les faits que la preuve a révélés au cours du procès. Il sera
suffisant de dire qu'à sa lecture, je me suis convaincu que même si la directive du juge eut été
conforme à la loi, et si le procureur de la Couronne eut fait usage d'un langage plus modéré, le verdict
aurait été nécessairement le même. Je suis satisfait qu'il n'y a eu aucun déni de justice et que
[13] [14]
l'accusé n'a subi aucun tort réel. Gouin v. The King ; Stirland v. Director of Public Prosecutions ;
[15]
Schmidt v. The King .
Je rejetterais l'appel.
RAND J.:‑Three grounds of appeal were taken : an error in the charge as it dealt with the burden of
proof on the Crown; a failure to give an instruction on the test required for circumstantial evidence;
and certain statements of Crown counsel in his address to the jury.
The first ground can be disposed of shortly. The words objected to were "hors de tout doute sérieux".
Whatever difference there is between this and the usual formula was swept away by subsequent
language with which the jurors were at least more familiar: they must have "une absolue certitude de
la vérité de l'accusation qu'ils ont à juger"; other expressions were to the same effect. The instruction,
as a whole, was more favourable to the accused than is customary.
The rule as to the sufficiency of proof by circumstances is that the facts relied on must be 'compatible
only with guilt and admittedly no instruction of that nature expressly or in substance was given. The
purpose of the rule is that the jury should be made alive to the possibility that the material facts might
be given a rational explanation other than that of items plotting the course of guilty action. I think it
should have been given, and I cannot say that the charge as a whole supplied its omission.
[Page 23]
There are finally the statements of counsel, which I confine to those dealing with the investigation by
the Crown of the circumstances of a crime:
C'est le devoir de la Couronne, quand une affaire comme celle-là arrive, n'importe quelle affaire,
et encore plus dans une affaire grave, de faire toutes les recherches possibles, et si au cours de
ces recherches avec nos experts on en vient à la conclusion que l'accusé n'est pas coupable ou
qu'il y a un doute raisonnable, c'est le devoir de la Couronne, messieurs, de le dire ou si on en
vient à la conclusion qu'il n'est pas coupable, de ne pas faire d'arrestation. Ici, c'est ce qu'on a
fait.
Quand la Couronne a fait faire cette preuve-là, ce n'est pas avec l'intention d'accabler l'accusé,
c'était avec l'intention de lui rendre justice.

Many, if not the majority of, jurors acting, it may be, for the first time, unacquainted with the language
and proceedings of courts, and with no precise appreciation of the role of the prosecution other than
as being associated with government, would be extremely susceptible to the implications of such
remarks. So to emphasize a neutral attitude on the part of Crown representatives in the investigation
of the facts of a crime is to put the matter to unsophisticated minds as if there had already been an
impartial determination of guilt by persons in authority. Little more likely to colour the consideration of
the evidence by jurors could be suggested. It is the antithesis of the impression that should be given to
them: they only are to pass on the issue and to do so only on what has been properly exhibited to
them in the course of the proceedings.
It is difficult to reconstruct in mind and feeling the court room scene when a human life is at stake; the
tensions, the invisible forces, subtle and unpredictable, the significance that a word may take on, are
sensed at best imperfectly. It is not, then, possible to say that this reference to the Crown's action did
not have a persuasive influence on the jury in reaching their verdict. The irregularity touches on( of the
oldest principles of our law, the rule that protects the subject from the pressures of the executive and

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has it safeguard in the independence of our courts. It goes to the foundation of the security of the
individual under the rule of law.
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it
is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to
be a crime. Counsel
[Page 24]
have a duty to see that all available legal proof of the facts is presented: it should be done firmly and
pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any
notion 'of winning or losing; his function is a matter of public duty than which in civil life there can be
none charged with greater personal responsibility. It is to be efficiently performed with an ingrained
sense of the dignity, the seriousness and the justness of judicial proceedings.
The answer of the Crown is that notwithstanding these objectionable features, there has been no
substantial miscarriage of justice; that the proof of guilt is overwhelming and that the jury, acting
judicially, must necessarily have come to the same verdict.

Sec. 1014(2) of the Criminal Code provides that the Court

may also dismiss the appeal if, notwithstanding that it is of opinion that on any of the grounds
above mentioned the appeal might be decided in favour of the appellant, it is also of opinion that
no substantial wrong or miscarriage of justice has actually occurred.
By sec. 1024 this Court, on an appeal, shall
make such rule or order thereon in affirmance of the conviction or for granting a new trial, or
otherwise, or for granting or refusing such application, as the justice of the case requires .. .
It will be seen that under the former section the Court is to exercise its discretion in the light of all the
circumstances. Appreciating to the full the undesirability, for many reasons, of another trial, I find
myself driven to conclude that nothing short of that will vindicate the fundamental safe-guards to which
the accused in this case was entitled.
The conviction, therefore, must be set aside and a new trial directed.
LOCKE J.:‑I have had the advantage of reading the reasons to be delivered in this matter by my
brother Cartwright. I agree with what he has said in regard to the first and second questions of law.
The failure to direct the jury upon what may be called the rule in Hodge's case appears to me to be
[16]
directly contrary to the unanimous decision of this Court in Lizotte v. The King .
[Page 25]
Upon the third question, I have this to say. It has always been accepted in this country that the duty of
per-sons entrusted by the Crown with prosecutions in criminal matters does not differ from that which
has long been recognized in England.
[17]
In Regina v. Thursfield , counsel for the Crown stated what he considered to be his ,duty in the
following terms:
that he should state to the jury the whole of what appeared on the depositions to be the facts of
the case, as well those which made in favour of the prisoner as those which made against her,
as he apprehended his duty, as counsel for the prosecution, to be, to examine the witnesses who
would detail the facts o the jury, after having narrated the circumstances in. such way as to make
the evidence, when given, intelligible to the jury, not considering himself as counsel for any
particular side or party.

Baron Gurney, who presided, then said:

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The learned counsel for the prosecution has most accurately conceived his duty, which is to be
assistant o the Court in the furtherance of justice, and not to act as counsel for any particular
person or party.
[18]
In Regina v. Ruddick , decided just after the passage of Denman's Act, Crompton J. said (p. 499):
I hope that in the exercise of the privilege granted by the new Act to counsel for the prosecution
of summing up the evidence, they will not cease to remember that counsel for the prosecution in
such cases are to regard themselves as ministers of justice, and not to struggle for a conviction,
as in a case at Nisi Prius‑nor be betrayed by feelings of professional rivalry‑to regard the
question at issue as one of professional superiority, and a contest for skill and preeminence.
An article entitled "The Ethics of Advocacy", written by Mr. Showell Rogers, appears in Vol. XV of the
Law Quarterly Review at p. 259, in which the cases upon this subject are reviewed and discussed.
Speaking of the principles above referred to, the author says:
Any one who has watched the administration of the criminal law in this country knows how
loyally-one might almost say how religiously-this principle is observed in practice. Counsel for the
Crown appears o be anything rather than the advocate of the particular private prosecutor who
happens to be proceeding in the name of the Crown. When there is no private prosecutor, and
the proceedings are in the most literal sense instituted by the Crown itself, the duty of
prosecuting counsel in this respect is even more strictly to be performed.
These are the principles which have been accepted as defining the duty of counsel for the Crown in
this country.
[Page 26]
[19]
In Rex v. Chamandy , Mr. Justice Riddell, speaking for the Ontario Court of Appeal, put it this way
(p. 227):
It cannot be made too clear, that in our law, a criminal prosecution is not a contest between
individuals, nor is it a contest between the Crown endeavouring to convict and the accused
endeavouring to be acquitted; but it is an investigation that should be conducted without feeling
or animus on the part of the prosecution, with the single view of determining the truth.

In the last Edition of Archbold's Criminal Pleading, Evidence and Practice, p. 194, the learned author
says that prosecuting counsel should regard themselves rather as ministers of justice assisting in its
administration than as advocates.
It is improper, in my opinion, for counsel for the Crown to express his opinion as to the guilt or
innocence of the accused. In the article to which I have referred it is said that it is because the
character or eminence of a counsel is to be wholly disregarded in determining the justice or other-wise
of his client's cause that it is an inflexible rule of forensic pleading that an advocate shall not, as such,
express his personal opinion of or his belief in his client's case.
In an address by the late Mr. Justice Rose, which is reported in Vol. XX of the Canadian Law Times at
p. 59, that learned Judge, referring to Mr. Rogers' article, pointed out a further objection to any such
practice in the following terms:‑
Your duty to your client does not call for any expression of your belief in the justice of his cause
... The counsel's opinion may be right or wrong, but it is not evidence. If one counsel may assert
his belief, the opposing counsel is put at a disadvantage if he does not state that in his belief his
client's cause or defence is just. If one counsel is well known and of high standing, his client
would have a decided advantage over his opponent if represented by a younger, weaker, or less
well known man.
In my opinion, these statements accurately define the duty ,of Crown counsel in these matters.
An extract from one of the passages taken from the address of counsel for the Crown by my brother
Cartwright reads:‑
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C'est le devoir de la Couronne, quand une affaire comme celle-là arrive, n'importe quelle affaire,
et encore plus dans une affaire grave, de faire toutes les recherches possibles, et si au cours de
ces recherches avec nos experts on en vient à la conclusion que l'accusé n'est pas coupable ou
[Page 27]
qu'il y a un doute raisonnable, c'est le devoir de la Couronne, messieurs, de le dire ou si on en
vient à la conclusion qu'il n'est pas coupable, de ne pas faire d'arrestation. Ici, c'est ce qu'on a
fait.
These are statements of fact and not argument and, in making them, counsel for the Crown was
giving evidence. The matters stated were wholly irrelevant and, had the counsel in question elected to
go into the witness box to make these statements on oath, the proposed evidence would not have
been heard. In this manner, however, these facts were submitted to the jury for their consideration.

The statements were calculated to impress upon the jury the asserted fact that, before the accused
had been arrested, the Crown, with its experts, had made a thorough investigation and was satisfied
that he was guilty beyond a reason-able doubt. Introduced into the record in this manner, there could
be no cross-examination to test their accuracy.
The address of Crown counsel to the jury ended in this manner:‑
On voit tous les jours des crimes encore plus nombreux que jamais, des vols et bien d'autre
chose, au moins celui qui vole à main armée ne fait pas souffrir sa victime comme Boucher a fait
souffrir Jabour. C'est un crime révoltant d'un homme dans toute la force de l'âge, d'un athlète
contre un vieillard de 77 ans qui n'est pas capable de se défendre. J'ai un peu respect pour ceux
qui volent quand au moins ils ont donné une chance à leur victime de se défendre, mais j'ai
aucune sympathie, aucune et je vous demande de n'en pas avoir, aucune sympathie pour ces
lèches qui frappent des hommes, des amis. Jabour n'était peut-être pas un ami, mais c'était un
voisin, du moins ils se connaissaient.
Lâchement, à coups d'hache.‑Et, si vous rapportez un verdict de coupable, pour une fois ça me
ferait presque plaisir de demander la peine de mort contre lui.
The Crown prosecutor, having improperly informed the jury that there had been an investigation by the
Crown which satisfied the authorities that the accused was guilty, thus assured them on his own belief
in his guilt and employed language calculated to inflame their feelings against him.
[20]
In Nathan House , where a conviction was quashed on the three grounds of misreception of
evidence, misdirection and the conduct of counsel, Trevethin, L.C.J., referring to the fact that counsel
for the Crown had made an appeal to religious prejudice in his address to the jury, said that
[Page 28]
the language complained of was highly improper and that it was impossible to. say that it could not
have influenced the jury.
[21]
In 'delivering the judgment of the House of Lords in Maxwell v. Director of Public Prosecutions ,
Lord Sankey, L.C. said in part (p. 176) :‑

... it must be remembered that the whole policy of English criminal law has been to see that as
against the prisoner every rule in his favour is observed and that no rule is broken so as to
prejudice the chance of the jury fairly trying the true issues.
The right of the accused in this matter to have his guilt or innocence decided upon the sworn evidence
alone, uninfluenced by statements of fact by the Crown prosecutor bearing directly upon the question
of his guilt, and to have the case against him stated in accordance with the fore-going principles, were
rights which may be properly described, to adopt the language of the Lord Chancellor in Maxwell's
case, as being two "of the most deeply rooted and jealously guarded principles of our criminal law."

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The infringement of these rights was, in my opinion, a substantial wrong, within the meaning of section
1014 (2) of the Criminal Code, and accordingly that provision has no application to this case: Makin v.
[22] [23] [24]
Attorney General for New South Wales ; Allen v. The King ; Northey v. The King .
I would allow this appeal, set aside the judgment of the Court of Appeal and the verdict at the trial and
direct that there be a new trial.
The judgment of Kellock, Cartwright and Fauteux JJ. was delivered by
CARTWRIGHT J.:-This is an appeal from a unanimous judgment of the Court of Queen's Bench,
[25]
Appeal Side , pronounced on the 15th day of June, 1954, dismissing the appeal of the appellant
from his conviction on a charge of murder at his trial before Sevigny C.J. and a jury on the 15th of
January, 1954.
[Page 29]
The appeal is brought pursuant to leave granted by my brother Kellock. The questions of law upon
which leave to appeal was granted are as follows:
(i) Were the jury misdirected by the learned trial judge with reference to the doctrine of
reasonable doubt? -
(ii) Were the jury misdirected by the learned trial judge with reference to the rule as to
circumstantial evidence?

(iii) Was the appellant deprived of a trial according to law by reason of the fact that the crown
counsel used inflammatory language in his address to the jury?
As to the first question, I am of opinion that when all that was said by the learned Chief Justice in his
charge to the jury as to the onus resting upon the Crown and as to the accused being entitled to the
benefit of the doubt is considered as a whole it cannot be said that there was misdirection on this
point. I do, however, venture to make the respectiful suggestion that it would be well if trial judges
when describing to the jury the doubt the existence of which prevents them from returning a verdict of
guilt would refrain from substituting other adjectives for the adjective "reasonable" which has been so
long established as the proper term to employ in this connection.
As to the second question of law on which leave to appeal was granted, it is common ground that the
evidence against the appellant was wholly circumstantial. It is clear that throughout his charge the
learned Chief Justice failed to direct the jury that before they could find the appellant guilty on such
evidence they must be satisfied not only that the circumstances proved were consistent with his
having committed the crime but also that they were inconsistent with any other rational conclusion
than that the appellant was the guilty person. The rule requiring the giving of such a direction to the
[26]
jury, usually referred to as the rule in Hodge's Case , has been long established and it is necessary
[27]
to refer only to the following authorities. In McLean v. The King , the following passage in the
unanimous judgment of the Court appears at page 690:
It is of last importance, we do not doubt, where the evidence adduced by the Crown is solely or
mainly of what is commonly described as circumstantial, that the jury should be brought to
realize that they ought not to find a verdict against the accused unless convinced beyond a
reasonable doubt that the guilt of the accused is the only reasonable explanation of the facts
established by the evidence. But there is no
[Page 30]
single exclusive formula which it is the duty of the trial judge to employ. As a rule he would be
well advised to adopt the language of Baron Alder-son or its equivalent.
[28]
In The King v. Comba , Duff C.J. giving the unanimous judgment of the Court said at page 397:

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It is admitted by the Crown, as the fact is, that the verdict rests solely upon a basis of
circumstantial evidence. In such cases, by the long settled rule of the common law, which is the
rule of law in Canada, the jury, before finding a prisoner guilty upon such evidence, must be
satisfied not only that the circumstances are consistent with a conclusion that the criminal act
was committed by the accused, but also that the facts are such as to be inconsistent with any
other rational conclusion than that the accused is the guilty person.
[29]
It is however desirable to point out, as was done by Middleton J.A. in Rex v. Comba , that the rule
in Hodge's case is quite distinct from the rule requiring a direction on the question of reasonable
doubt.
On this point I do not find it necessary to quote from the charge of the learned Chief Justice in the
case at bar as I understand that all members of the 'Court agree that there was a failure to give the
necessary direction.
As to the third question of law on which leave to appeal was granted, it appears that in the course of
his address to the jury counsel for the Crown said:
Le docteur nous dit au sujet du sang,-on nous a fait un reproche messieurs parce que nous
avons fait faire une analyse du sang. Mais la Couronne n'est pas ici pour le plaisir de faire
condamner des innocents.
C'est le devoir de la Couronne, quand une affaire comme celle-là arrive, n'importe quelle affaire,
et encore plus dans une affaire grave, de faire toutes les recherches possibles, et si au cours de
ces recherches avec nos experts on en vient à la conclusion que l'accusé n'est pas coupable ou
qu'il y a un doute raisonable, c'est le devoir de la Couronne, messieurs, de le dire ou si on en
vient à la conclusion qu'il n'est pas coupable, de ne pas faire d'arrestation. Ici, c'est ce qu'on a
fait.
Counsel for the Crown concluded his address to the jury as follows:
On voit tous les jours des crimes encore plus nombreux que jamais, des vols et bien d'autre
chose, au moins celui qui vole à main armée ne fait pas souffrir sa victime comme Boucher a fait
souffrir Jabour. C'est un crime révoltant d'un homme dans toute la force de l'âge, d'un athlète
contre un vieillard de 77 ans qui n'est pas capable de se défendre. J'ai un peu respect pour ceux
qui volent quand au moins ils ont donné une chance à leur victime de se défendre, mais j'ai
aucune sympathie, aucune et je vous demande de n'en pas avoir, aucune sympathie pour ces
lâches qui frappent des hommes, des amis. Jabour n'était peut-être pas un ami, mais c'était un
voisin, du moins ils se connaissaient.
[Page 31]
Lâchement, à coups d'hache.-Et, si vous rapportez un verdict de coupable, pour une fois ça me
ferait presque plaisir de demander la peine de mort contre lui.

There are a number of other passages in the address of this counsel to the jury which I do not find it
necessary to quote as I think they can be fairly summarized by saying that counsel made it clear to the
jury not only that he was submitting to them that the conclusion which they should reach on the
evidence was that the accused was guilty, a submission which it was of course proper for him to
make, but also that he personally entertained the opinion that the accused was guilty.
There is no doubt that it is improper for counsel, whether for the Crown or the defence to express his
own opinion as to the guilt or innocence of the accused.
The grave objection to what was said by counsel is that the jury would naturally and reasonably
understand from his words first quoted above that he, with the assistance of other qualified persons,
had made a careful examination into the facts of the case prior to the trial and that if as a result of
such investigation he entertained any reasonable doubt as to the accused's guilt a duty rested upon
him as Crown counsel to so inform the Court. As, far from expressing or suggesting the existence of
any such doubt in his mind, he made it clear to the jury that he personally believed the accused to be
guilty, the jury would reasonably take from what he had said that as the result of his investigation
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outside the court room Crown counsel had satisfied himself of the guilt of the accused. The making of
such a statement to the jury was clearly unlawful and its damaging effect would, in my view, be even
greater than the admission of illegal evidence or a statement by Crown counsel to the jury either in his
opening address or in his closing address of facts as to which there was no evidence.
I conclude that in regard to both the second and third questions on which leave to appeal was granted
there was error in law at the trial and that accordingly the appeal should be allowed unless this is a
case in which the Court should apply the provisions of section 1014 (2) of the Criminal Code.
[Page 32]
The subsection mentioned has often been considered in this Court and, in the view that I take of the
evidence, it is sufficient to refer to the judgment of Kerwin J., as he then was, in Schmidt v. The
[30]
King :

The meaning of these words has been considered in this Court in several cases, one of which is
Gouin v. The King, from all of which it is clear that the onus rests on the Crown to satisfy the
Court that the verdict would necessarily have been the same if the charge had been correct or if
no evidence had been improperly admitted. The principles therein set forth do not differ from the
rules set forth in a recent decision of the House of Lords in Stirland v. Director of Public
Prosecutions, i.e., that the proviso that the Court of Appeal may dismiss the appeal if they
consider that no substantial miscarriage of justice has actually occurred in convicting the
accused assumes a situation where a reasonable jury, after being properly directed, would, on
the evidence properly admissible, with-out doubt convict.
As there is to be a new trial, I will, in accordance with the established practice of the Court, refrain
from discussing the evidence and will simply state my opinion that it cannot be safely affirmed that the
jury, had they been properly directed as to the rule in Hodge's case and had the improper remarks of
Crown counsel not been made, would necessarily have convicted the appellant. This makes it
unnecessary for me to consider the submission of counsel for the appellant, that even if the Court
should be of opinion that had the trial been free from the errors in law dealt with above the jury would
necessarily have convicted the appellant the 'conviction should nonetheless be quashed because
these errors were of so fundamental a character that the appellant was deprived of his right to the
verdict of a jury following a trial according to law and such deprivation is of necessity 'a substantial
wrong, an argument which would have required a 'careful examination of the judgments in such cases
[31] [32]
as Allen v. The King and Northey v. The King .
Having concluded that there was error in law at the trial in regard to both the second and third
questions on which leave to appeal was granted and that this is not a case in which it can be said that
had such errors not occurred the verdict would necessarily have been the same it follows that the
conviction must be quashed.
I would allow the appeal, quash the conviction and direct a new trial.
Appeal allowed; conviction quashed; new trial ordered.
Solicitor for the appellant: A. Maloney.
Solicitor for the respondent: P. Miquelon.
[ScanLII Collection]

[1]
Q.R. [1954] Q.B. 592.
[2]
1938 CanLII 7 (SCC), [1938] S.C.R. 396.
[3]
(1838) Lewin C.C. 227.

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[4]
1933 CanLII 38 (SCC), [1933] S.C.R. 688 at 690.
[5]
1951 CanLII 27 (SCC), [1952] 1 S.C.R. 232.
[6]
1945 CanLII 4 (SCC), [1945] S.C.R. 438 at 440.
[7]
Q.R. [1954] Q.B. 592.
[8]
(1838) 1838 CanLII 1 (FOREP), 2 Lewin CC. 227.
[9]
(1927) 48 C.C.C. 171.
[10]
(1929) 51 C.C.C. 351.
[11]
(1931) 1931 CanLII 512 (ON SC), 56 C.C.C. 390.
[12]
[1933] S.C.R. 690.
[13]
1926 CanLII 44 (SCC), [1926] S.C.R. 539.
[14]
[1944] A.C. 315.
[15]
[1945] S.C.R. 440.
[16]
[1951] S.C.R. 117.
[17]
(1838) 8 C. & P. 269.
[18]
(1865) 4 F. & F. 497.
[19]
(1934) 1934 CanLII 130 (ON CA), 61 C.C.C. 224.
[20]
(1921) 16 C.A.R. 49.
[21]
(1934) 24 C.A.R. 152.
[22]
[1894] A.C. 69, 70.
[23]
(1911) 1911 CanLII 52 (SCC), 44 Can. S.C.R. 331.
[24]
1948 CanLII 16 (SCC), [1948] S.C.R. 135.
[25]
Q.R. [1954] Q.B. 592.
[26]
(1838) 1838 CanLII 1 (FOREP), 2 Lewin C.C. 227.
[27]
1933 CanLII 38 (SCC), [1933] S.C.R. 688.
[28]
1938 CanLII 7 (SCC), [1938] S.C.R. 396.
[29]
(1938) 1938 CanLII 7 (SCC), 70 C.C.C. 205 at 227.
[30]
1945 CanLII 4 (SCC), [1945] S.C.R. 438 at 440.
[31]
(1911) 1911 CanLII 52 (SCC), 44 Can. S.C.R. 331.
[32]
1948 CanLII 16 (SCC), [1948] S.C.R. 135.

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Federation of Law Societies of Canada
By for the law societies members of the

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 218

St. Louis v.The Queen

25 SCR 649, 1896 CanLII 65 (SCC)

1/6/2019 CanLII - 1896 CanLII 65 (SCC) 219

St. Louis v.The Queen, 25 SCR 649, 1896 CanLII 65 (SCC)

Date: 1896-02-18
Other [1896] CarswellNat 23
citation:
Citation: St. Louis v.The Queen, 25 SCR 649, 1896 CanLII 65 (SCC), <http://canlii.ca/t/ggx4p>, retrieved on 2019-
01-06

Supreme Court of Canada

St. Louis v. The Queen (1896) 25 SCR 649
Date: 1896-02-18

Emmanuel St. Louis (Suppliant)

Appellant

And

Her Majesty The Queen (Respondent)

Respondent

1895: Oct. 11; 1896: Feb. 18.

Present:—Taschereau, Gwynne, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.

Evidence—Presumptions—Omnia prcesumuntur contra spoliatorem.

St. L. filed a petition of right to recover from the Crown the balance alleged to be due on a contract for
certain public works. On the hearing it was shown that certain time-books and the original
documents from which his accounts had been made up and also his books of account had
disappeared. The Judge of the Exchequer Court found as a fact that these books and
documents had been destroyed in view of proceedings before a commission appointed some
time prior to the filing of the Petition of Right to inquire into the manner in which the works done
under the contract had been carried on and he dismissed the petition.

Held, reversing the judgment of the Exchequer Court, that the evidence did not warrant the finding that
the documents had been destroyed with a fraudulent intent and to prevent inquiry; that all that
could have been proved by what was destroyed had been supplied by other evidence; and that
the rule omnia prcesumuntur contra spoliatorem did not justify the learned judge in assuming
that if produced the documents destroyed would have falsified St. L.'s accounts, the evidence on
the trial showing instead that the accounts would have been corroborated.

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Appeal from a decision of the Exchequer Court of Canada[1], dismissing the suppliant's petition
of right.

The suppliant claimed payment of $63,642.29 as the balance remaining on a larger amount, due
in virtue of several contracts between himself and the Department of Railways and Canals for the
Dominion of Canada,

[Page 650]

for stone for the construction of a new Grand Trunk Railway bridge on the Lachine Canal, and for
labour required upon Wellington bridge, the Grand Trunk bridge, and lock no. 1 on the Lachine Canal
in Montreal.

These contracts in the first instance were formed by accepted tenders made by the appellant,
addressed to the Department of Railways and Canals; but during the execution of the contracts
modifications were made.

The main defence raised by the Crown, and the one which was principally relied on at the trial,
was the fraudulent preparation by the appellant of the pay-lists of the men.

The work on the bridges was, of necessity, required to be performed in the winter season, before
the opening of navigation on the Lachine Canal, and was performed, and the men and teams supplied
by the appellant, between the months of January and the middle of June, 1893, under the direction of
the superintending engineer and the superintendent of the Lachine Canal.

The method adopted by the appellant in keeping a record of the men and teams which he sent
upon the works, was by keeping the time of these men and teams in time-books and time-sheets, for
which purpose timekeepers were employed. The time-books and time-sheets were, at the close of
each day's work, handed into the office of the appellant, and a book-keeper and several assistants
were employed by the appellant in making up pay-lists or accounts of the men's time, at the prices
mentioned in the contracts above referred to. These pay-lists or accounts, when completed for a
period of a fortnight or other period at which they were made up, were taken to the government
officers in charge of the work, who certified them, after which they were sent to the Department of
Railways and Canals at Ottawa for payment. The department

[Page 651]

employed a time-keeper, whose duty it was to check over the pay-lists and keep, a record and check
upon the time of the men employed.

The total amount of the pay-lists of the appellant amounted to the sum of $284,192.50, in which
is included a small sum for stone but with respect to which no question arises.

Of this total amount the Crown paid $220,550.21, but refused to pay the balance of $63,642.29,
alleging that the appellant had, during the greater part of the time the works were in progress,
improperly and fraudulently inserted the names of workmen who were not in fact employed or
engaged on the work; and also that a large amount of time of men and teams that were employed had
been fraudulently added to the pay-lists, whereby the amounts appearing on the pay-lists were greatly
in excess of what was really due to the appellant.

The appellant's evidence, taken upon discovery, disclosed the facts, that prior to a sitting of a
commission, which was appointed by the Dominion Government in May, 1893, to investigate and
report upon the building of the bridges, he had burnt and destroyed all his books of account, bank
pass-books, cheques and the original time-books and time-sheets relating to the contracts in this
matter, so that none of the original books and papers were available for evidence at the trial.
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The Exchequer Court judgment was to the effect that on account of the presumptions arising
against the suppliant through his voluntary and wilful destruction of the evidence, he was not entitled
to any portion of the relief sought by his petition.

Geoffrion Q.C. and Emard for the appellant. The evidence will show that the suppliant has
proved every item of his claim and is entitled to recover unless fraud can be shown.

[Page 652]

There is nothing to justify the finding of the learned Judge of the Exchequer Court that the books
were destroyed with the object of embarrassing the commission.

The suppliant was not obliged to keep any books as he would be in France.

The rule omnia prœsumuntur contra spoliatorem is not one de juris et de jure. The presumptions
under it are only of fact arising from the evidence and do not make evidence. See arts. 1204, 1227,
1238 C. C.; arts. 1330, 1331 C. N.; arts. 15, 17, Code Com.; Dal.[2]; Marcadé[3].

The destruction in this case at the most would only operate to let in secondary evidence. Art.
1239 C. C.; Best on Evidence[4]; Cartier v. Troy Lumber Co.[5]; Bott v. Wood[6].

Osier Q.C. and Hogg Q.C. for the respondent. The finding that the books were destroyed in view
of the commission must be accepted on appeal and justify the presumptions made against the
suppliant. Hunter v. Lauder[7]; Attorney General v. Dean of Windsor[8]; Harris v. Rosenberg[9];
Joannes v. Bennett[10].

The learned counsel dealt with the evidence, claiming that it showed fraud on the suppliant's
part.

TASCHEREAU J.—I would allow this appeal. I think that the court below has carried too far the
consequences of the rule omnia prœsumuntur contra spoliatorem[11]. The destruction of evidence
carries a presumption that the evidence destroyed would have been unfavourable to the party who
destroyed

[Page 653]

it, but that presumption may be rebutted. Now, here the presumption raised by the destruction of
papers and books by St. Louis, not unsatisfactorily explained, could not be better rebutted than by
proving, as he has done in the clearest manner, that they would, if forthcoming, conclusively establish
his claim. Michaud, his head clerk, swears positively, and his evidence not only stands uncontradicted
but is fully corroborated, that the appellant's accounts as sent to the government were taken faithfully
from the books that have been destroyed. Coughlin, a government time-keeper, swears to the
correctness of the pay-lists concerning the work done at the Wellington bridge, to which he more
particularly attended, and as to the other works Villeneuve, the head time-keeper, explains the system
which was followed so as to keep a faithful and correct account of all the men's time. These men
would go to the wicket in the morning and call their respective numbers which he, Villeneuve, would
put down, and they would then go to the works; and during the day, three or four times a day, he or his
assistants would go on the works and call out their numbers again, and note their presence at or
absence from the works, and then transcribe these notes in the book kept by him (Villeneuve) for that
purpose. From this book some one from the appellant's office would come and take a copy so as to
have a duplicate of the time-keeping at the head-office," which would be a means of keeping the
appellant informed and at the same time be a check on the time-keeper. At pay-day, money would
come from the appellant's office ready, prepared in envelopes for each man, and the head timekeeper
would see that such pay in each case corresponded with his own book. The assistant time-keepers,

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Drolet, Beaudry and McEwan, testify as to the correctness of the returns made by them as such to the
head

[Page 654]

timekeeper, and the copyists, Beaudry, McEwan, Stanton, Proulx and Archambault certify to the
correctness of the work they performed in making up the several accounts. Michaud, the head clerk,
who was also pay-master for the appellant, swears that he has taken care that all the work done by
the above named clerks in preparing the accounts and pay-lists should be done correctly, and that he
himself paid all the money for the labour which is charged on the pay-lists in presence of Kennedy, or
Coughlin, the government officers. That each and every one of the men returned on the time-lists
have been paid by St. Louis there is therefore complete evidence of. And that evidence must be given
effect to if all these witnesses have not conspired to commit perjury, a proposition which the Crown
itself would not be justified in advancing, and upon which the court below did not rely to reach a
conclusion adverse to the appellant's claim.

The witness Villeneuve, whose evidence is so important in the case, is, or was when examined, a
permanent officer of the government, and at the special request of the superintending engineer he
was allowed, in the interest of the government, by the department at Ottawa, to continue to act as
time-keeper after the opening of the navigation up to the 14th May. Now, the superintending engineer
had seen him every day on the works in the performance of his duties, so that this request to continue
Villeneuve's services amounts to a direct approval by the government head officer of the way in which
he, Villeneuve, had performed his services, if anything more in that sense was required than this
officer's signature at the foot of each list, certifying to their correctness. If, as the Crown contends, he
has no personal knowledge of the correctness of what he certified, he unquestionably personally knew
Villeneuve, and how he had performed his duties and

[Page 655]

how far he could trust him. And this high officer, nor any other officer of the government, it is but just to
say, cannot be, under the evidence adduced, and is not, charged with fraud.

The whole of the Crown's attempt to resist the claim seems to be based on a vague idea that there
must have been fraud in connection with this work, because it greatly exceeded the original estimates
of its officers of what it should actually have cost, and it is mainly to prove this that a number of
witnesses have been examined on its behalf. Now it may be questioned if this, of itself, carries with it
the least indicia of fraud. There are not many public works, not only in this country, but all through the
world, I may say perhaps, that do not cost a great deal more than the estimate first made thereof. But
assuming that it may give rise to suspicion, the Crown in this case would have to necessarily connect
the appellant with the fraud, if any there has been. Now he had nothing whatever to do with the works,
nor any control over the men he supplied. That is conceded. As far as he was concerned the men he
sent to the government may have been perfectly useless, or 100 per cent more in number than was
necessary. And further, he may have made 100 per cent profit on each of the men he so sent. That
clearly would be perfectly legitimate.

And then, was it possible for him better to rebut any presumption of fraud than by proving that he had
duly himself paid every one of the men he charges to the government for the time each of them
worked, as appearing by the time lists in evidence, where they each of them answered to their names
on the works in presence of the government officers, on each pay day?

If the appellant had not received anything on his contract, and was claiming here the whole amount of
$284,192.50, as per his pay-lists duly certified by the

[Page 656]

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government officers, would his claim be dismissed in toto because he destroyed his books? That is
what the respondent would contend for. Now that cannot be. The destruction of the books entitled the
respondent to put the appellant on the strict proof of each and every item of his claim, but for each and
every item duly proved the appellant is entitled to recover. And the evidence is all one way. Every item
of the $284,192.50 has been proved by the best available evidence, and that is conclusive.

I have assumed that the books and documents destroyed by the appellant all had connection with his
present claim and would have been evidence if they had not been destroyed. But, as far as I can
make out, none of these books, with the exception of the original time-books-kept on the works
themselves, could at all have any bearing on this issue. And as to these time-books, it is in evidence
that they were always destroyed after: having been recopied in the office. And, that this is so is made
evident in the case by the respondent whose own time-books kept by its own officers have also been
destroyed and could not be produced. As to cheque books and bank pass-books, they would have
thrown no light on the case, as it is in evidence that the appellant who had other large contracts going
on at the same time as this one used to draw indiscriminately on his bankers for the funds wanted for
all his contracts.

And then, the respondent could have got all the information that they ever could have had from these
bank books by examining the bank officers and the bankers' books; the appellant gave the names of
his bankers. As to the original pay-lists he had these in his hands when examined on discovery. Mr.
Justice Girouard will refer more fully to this part of the case.

A man named Doheny under very suspicious circumstances was brought into the witness box by the

[Page 657]

Crown, to prove that he, Doheny, had counted the stonecutters at Kennedy's request, and that
according to his returns the appellant charged to the government, from the 20th March to the 29th of
April, 2,281 more men than he, Doheny, had counted on the works. Now, leaving aside the glaring
unreliability of this witness, and the negligent and careless manner in which it is evident at the very
inspection of the little book he produced as his voucher that he must have fulfilled his duties as time-
keeper, the fact remains proved that whatever the men he sent to the works did, or wherever they
were sent to work, he, the appellant, paid these 2,281 men on the works. And he gives the name of
each and every one of them. If the Crown had been able to corroborate Doheny's evidence by
bringing, if not all, at least a few of these 2,281 men to prove that it was not true that the appellant had
engaged them, and had duly paid them, it would undoubtedly have been done. They charged fraud;
on them was the onus probandi of that charge, and under the circumstances the appellant is justified
in asking us to infer from its not having been done that it could not be done, and consequently, that
whatever may be the explanation of this discrepancy between these Doheny's lists and the appellant's
lists during that period of the works, the fact remains uncontradicted that each and every one of these
2,281 men answered to their names on the works and were duly paid by the appellant the time
charged in the lists. And it is in evidence that in some instances he actually charged to the
government less men than the government's own time-keepers returned. That is not consistent with
the fraudulent system of dealing in the matter that the respondent would charge him with. As to
Kennedy, the special overseer of the works, the respondent has not thought fit to examine him. Why,
does not appear. It seems to me that, under

[Page 658]

the circumstances, it is open to the appellant to contend that this should be taken as an admission that
he, Kennedy, would, not contradict the appellant's statement under oath, nor the evidence of Michaud,
Connolly, Villeneuve and others, that each and every one of the men returned in his lists to the
government had been supplied at his, Kennedy's, request, and had been paid by the appellant in
Kennedy's or Coughlin's presence and with their sanction. He, Kennedy, certified to the correctness of

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all of the appellant's returns to the government, and he, as directly in charge of the works, was in a
position not to be imposed upon by the appellant's lists had those lists been to any extent incorrect.

And were it only to corroborate Doheny's evidence, had it been possible for him to do so, their not
calling Kennedy throws an unfavourable light on the respondent's case. A witness of that kind, so
willingly keeping back evidence to thrust it at the appellant at the decisive moment, needs all the
corroboration that could be got, it seems to me. He would say he acted in the public interest, I
presume. I have my doubts about that, to say the least.

However, it may very well be that he did really not see more men on the works than what he returned.
It is in evidence that it was impossible for him to ascertain how many were there at a given date in the
way he says he tried to do it. The three works, the Wellington bridge, the Grand Trunk bridge and lock
no. 1, were all three government works near one another, going on at the same time, with orders to
hurry it at any cost, even benight and Sunday work. The appellant supplied the labour for the three
works and the prices were the same for the three, so that it must have often happened, and there is
evidence of it, that men that are charged to one may have worked part of the time on the other; it was
immaterial to the

[Page 659]

government whether they were put down on one list or the other, and they were actually often shifted
from one of the works to the other in a way that could not be checked by the time-keepers. This may
partly explain the discrepancy between Doheny's little book and the appellant's lists; for we have
unquestionable evidence from himself on this record, that during the only period to which a reliable
test can be applied to its accuracy the result is very unfavourable indeed to his little book.

On the 6th May, St. Louis charges 38

Doheny's book 20
7th May, Sunday, no return by Doheny.
8th May, St. Louis charges 44
Doheny's book 24
9th May, St. Louis charges 45
Doheny's book 27
10th May, St. Louis charges 46
Doheny's book 28
11th May, St. Louis charges 39
Doheny's book 28
12th May, St. Louis charges 45
Doheny's book 29
13th May, St. Louis charges 43
Doheny's book 29
15th May, St. Louis charges 32
Doheny's book 21
16th May, St. Louis charges 34
Doheny's book 22
17th May, St. Louis charges 35
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Doheny's book 25

Now, which of these two sets of figures is, upon the evidence, the accurate one, leaving aside the
direct testimony of Michaud, Villeneuve and others. Michael Doheny himself gives the answer. At the
foot of St. Louis' lists returning his number of men as per the

[Page 660]

above sheets with, in addition, the name of each and every man, he, Doheny, under his own
signature, certified them "to be correct in all details and particulars," Signed "M. Doheny, time-checker,
and James Davin, clerk and time-keeper." He, Doheny, as time-checker, thus himself subsequently
certifying, when given each man's name in detail, that his own figures were wrong and his little book,
whatever may be the cause of it, not to be trusted or relied upon. And curious to note, this list he so
certifies to as correct in all details and particulars has his own name down for $8 on Sunday the 7th,
though according to his little book, if it was to be relied upon, he did not work on that day, another
striking illustration of the unreliability of the little book. Now if, during the only period that a test of its
reliability can be traced in this record, that book is proved to be so deficient, upon what ground would
the respondent ask us to see it in a more favourable light, or to give any weight at all to it, for the
preceding period of forty or forty-five days that it assumes to cover? The inference is all the other way,
it seems to me.

I notice in the appellant's factum a reference to the contention raised in paragraphs 6 and 7 of the
statement of defence, as to the difference between skilled labourers and common or good labourers
for pick and shovel. That point, however, I assume, has been abandoned by the respondent as no
reference whatever is made to it in the judgment of the Exchequer Court, nor in the factum upon this
appeal. And I do not see how the respondent could ever have expected to make anything against the
appellant's claim out of this difference between these two classes of labourers, as whether from
oversight, or from any other causes the contract of the appellant covered only skilled labourers. And
from the 25th of January to the 15th of March,

[Page 661]

the men he sent, all and every one of them, actually worked as skilled labourers and were accepted
as such by all of the government officers, Parent, the superintending engineer; Kennedy, the overseer
in charge of the works; Desbarats, the engineer of the works. Not one of these government officers,
not one of the foremen, ever uttered a word of complaint against the kind of labourers that the
appellant was supplying under his contract to supply skilled labourers. And if in March the appellant
willingly agreed to classify his men in two classes at the instance of the government, his readiness to
give up, even for the past, a right which the strict letter of his contract gave him, rather tends to show
his good faith in the matter than otherwise.

The respondent concedes, 1st, that all the labour for this work was to be supplied by the appellant;
2nd, that all the labour required under the original contract was skilled labour; 3rd, that all the men he
supplied up to the 15th March were accepted by the officers in charge. It necessarily follows that all
the men he supplied were skilled labourers.

And there is not a word of evidence to the contrary. Nay, more, after having accepted these labourers
as skilled labourers, and employed them as such, the Crown would hardly have been admitted now to
contend that they were not the labourers provided for by the contract.

The Crown, I may remark here, has abandoned its contentions as to the appellant's charges for
overtime and night work. The sums charged for stone sold and delivered are also admitted by the
Crown upon this appeal.

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There are some items of the appellant's charges, as steam derricks, blacksmiths, steam derrick
engineers that are not covered by the contract. However, those

[Page 662]

special men and articles must have been called for by the government officers in charge of the works,
and the government duly ratified their employ and the charges therefor not only by their own officers
on the works certifying to them, but by knowingly paying for them in Ottawa without objection. I did not
understand the respondent to make any point on this.

The respondent appears to lay some stress on the fact that five or six of the appellant's time-keepers
have been charged to the Crown as masons or stonecutters. Now, the appellant did that openly and
with the acquiescence of the government officers. These men were really in the government's employ.
He paid even the foremen engaged directly by the government as appears by Connolly's evidence.
The only fault of the appellant is that he inserted them under a classification so as to have them,
covered by the contract. I cannot see any evidence of fraud in this. No one with a claim against the
government is to be called a thief because he may have illegally charged, in an account of over
$200,000 of this intricate nature, a couple of thousand dollars of doubtful legality. If one claims say
$200,000 but proves only $190,000, his claim is not to be dismissed in toto because he failed to prove
the difference of $10,000, even if the claim for these $10,000 were tainted with fraud. Fraud in what is
not proved is no defence to what is proved.

Assuming that the appellant would not be entitled, according to the strict letter of the contract, to have
these sums charged to the government, the only result would be that that amount would have to be
deducted. But it is such an insignificant small sum that the respondent has not insisted upon that. It
was only insisted upon as evidence of fraud, and as such, in my opinion, it entirely fails to support
such a grave

[Page 663]

charge. There was no covin in it. It was done with the full knowledge of the government head-officers.

I have alluded to the respondent's contention, based on the presumption from the destruction of the
books, and to the complete proof to rebut that presumption that the appellant has brought forward. But
in addition to that proof, and in aid of it, is there not another presumption that must not be lost sight of,
the presumption that all these witnesses have deposed to the truth? Can a court of justice brand such
a number of respectable citizens with the stigma of perjury because the appellant has chosen to
destroy his books, or because the government has itself neglected to have the men's time accurately
taken? Such would be what the respondent's contentions amount to.

I have also alluded to the fact that beyond the large excess of the cost of the works over the original
estimate, or what it has been proved they should have cost, there is not a title of reliable evidence in
the case to justify any suspicion of fraudulent dealings in the matter by the appellant. Now this excess
of cost, I may further remark, is not confined to the appellant's share of the works. It is in evidence that
the part of the works with which he, the appellant, had nothing whatever to do had been estimated by
the government engineer at $32,997, whilst their actual cost has been $156,932, or more than over
four times the estimate, that is to say, more than the difference between the actual cost of the
appellant's share of the works and the estimate thereof. This shows clearly that the alterations made
to the work by the government must have more than doubled the cost thereof as sworn to by their own
officer, Parent. However, this is immaterial. The fact that the cost may have been a great deal heavier
than was ever anticipated is no reason not to pay the appellant. He is not responsible for it. He never
supplied a single man

[Page 664]

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that was not asked for by the government officers. And it is impossible from the evidence on the
record, if credence is to be given to his witnesses, that a single hour's work has been charged to the
government that he has not supplied and himself paid for. And were it necessary in this case, the
government might perhaps find in the record evidence that should induce them to look elsewhere than
to the appellant for the reasons of the heavy cost of these works. Besides the important alterations in
the plans ordered from headquarters, the season of the year during which the works had to be done,
the fact that the men had often to work in very severe weather and in ice and snow, the very short time
allowed to do such a large amount of work, the necessary confusion and loss of time arising from the
fact of at times as many as 1,000 men a day, and a large number at night, working in a comparatively
limited space, and this under the control of parties who had not the least pecuniary interest to lessen
the expenses, it appears on the record, by a letter from Schreiber, the chief engineer at Ottawa, of the
24th of February, 1893, to Parent, the superintending engineer in Montreal that, ab initio, the appellant
complained that the skilled labour he supplied was thrown idle two or three days in the week.
However, I repeat it that does not in this case concern the appellant.

Mention is made by some of the witnesses of a certain commission in connection with these works.
Thereis no direct evidence in the record of such a commission, except an answer of the witness
McLeod in which he states that he was the chairman thereof. What was its purport, its duties, and
when such a commission was appointed the evidence does not disclose. However, this is immaterial,
except that 1 notice that McLeod's evidence in this case seems to be based to a great extent on the
knowledge he acquired as chairman

[Page 665]

of that commission, and as such is altogether illegal. The only other reference to this commission that
need be made is in regard to the statement made by the respondents in their factum that the appellant
had destroyed his books in view of that commission. I can see in the case no evidence to support this
statement.

I see in the appeal book a translation of the French depositions. That is not required on appeals to this
court. Such translations are not only unnecessary, they are dangerous. These should not have
appeared in the appeal book, and the registrar is ordered to put the cost of the printing thereof against
the appellant who is responsible for it.

The appeal is allowed with costs, but from the amount claimed by the appellant we have, after further
deliberation, come to the conclusion that the charges for his copyists and time-keepers are not
covered by the strict letter of his contract and should therefore not be allowed. The parties have not
furnished us with their own figures on this point and I am not satisfied that it is possible for us upon the
record to ascertain the precise amount of these charges, but a sum of $1,800 is, we think, amply
sufficient to cover them. Judgment will therefore be entered for $61,842.29, with interest from the 2nd
of December, 1893, the date of the petition of right, and costs.

GWYNNE J.—I agree in thinking that the learned judge of the Exchequer Court in arriving at the
conclusion at which he has arrived in his judgment has carried the maxim, omnia praesumuntur contra
spoliator em beyond what is warranted in law upon the evidence which has been adduced. That
evidence, unless it be false, seems to exclude all necessity of applying the maxim in the present case.
The learned judge does not appear to have formed his judgment upon the

[Page 666]

opinion entertained by him upon the credibility of the several witnesses examined before him, nor yet
upon a balancing of the weight to be attached to the evidence of the respective witnesses.

If, as the learned judge says, he was of opinion that the fair deduction to be drawn from the
destruction by the appellant of the papers, &c., destroyed by him would be to show that the pay-lists
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upon which he makes his present demand and which he furnished to the government, and upon which
he was paid what has been paid to him, did not constitute true and just accounts of the labour
supplied under his contract, then those papers if forthcoming would of necessity prove that not only
one but several of the witnesses who have given their testimony were perjured, and yet we have no
hint in the learned judge's judgment that such an imputation has any other foundation upon which to
rest save only this assumption.

This surely is not a presumption which is warranted by the maxim.

In the absence of the papers destroyed the case must be determined upon the evidence which is
forthcoming, and for the reasons given in the judgment of my brother Girouard I concur that this
appeal must be allowed.

SEDGEWICK and KING J J. concurred in the judgment of Mr. Justice Girouard.

GIROUARD J.—I fully concur in the opinion of Mr. Justice Taschereau. I quite agree with him that the
judgment appealed from is erroneous, both as to facts and law. His elaborate review of the case will
relieve me from the necessity of making any extended remarks on my own account, and in the
observations I intend to offer I propose to deal only with the questions

[Page 667]

involved in the destruction of the books and papers of the appellant, which seems to be the basis of
the judgment.

The maxim omnia praesumuntur contra spoliatorem comes down to us from the Romans who applied
it, with a good deal of severity, because every business man was supposed to keep regular records of
his affairs, at least a ledger or codex; but it is remarkable that the blotter or Adversaria had no legal
value, not being admissible as evidence in courts of justice, and no one was obliged to keep it beyond
one month. If a plaintiff, trader or not, refused to produce his Codex or other papers in his possession
relating to any claim, his action was rejected purely and simply, the plaintiff being then held to have
been guilty of fraud upon the defendant Doli exceptione summoveri poterat L. L. 5 and 8, Code de
Edendo. The modern nations, even those governed by the principles of the Roman law, have not been
willing to go so far in the application of the maxim, except in matters of international concern. 1
Greenleaf[12]; 1 Taylor[13]. The Institutes of Justinian by Sandars[14]; 2 Toubeau 61; Duranton[15]; 8
Toullier[16]. Domat, perhaps the most accurate interpreter of the Roman law as accepted in old
France, says[17]:

Ainsi, une partie ne peut exiger de l'autre qu'elle produise ou représente une pièce, dont cette
partie ne veut de sa part faire aucun usage; mais il dépend de sa bonne foi de représenter ou de
retenir les pièces dont la communication lui est demandée. Et on n'est obligé de produire que
celles sur lesquelles on fonde son droit. Que si dans le refus de représenter une pièce, il y avait
quelque juste soupçon de mauvaise foi, comme si un créancier qui demanderait des intérêts ou
des arrérages d'une rente, refusait de représenter son livre-journa], où le débiteur prétendrait
qu'il serait fait mention de ses paiements, il dépendrait de la prudence du juge d'ordonner sur ce
refus ce que les circonstances pourraient demander.

[Page 668]

In modern France, under the Code of Commerce, which requires the keeping of certain books by
merchants and traders, their non-production does not constitute a bar to the action, but merely a
presumption which justifies the court, according to circumstances, in accepting any other evidence,
and even to take the oath of the party injured. Code de Commerce, art. 17. The rule is probably the
same for a non-trader, party to a suit, refusing to produce his books or papers, although the point
seems to be somewhat doubted by some jurists. C. N. art. 1331; 13 Duranton[18]; 8 Toullier[19]; 5
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Marcadé[20]; 19 Laurent[21]; 2 Fremy-Ligneville 104; Gilbert sur Sirey[22]. The Civil Code of Lower
Canada, art. 1227, is similar to the article 1331 of the Code Napoleon. Consequently, with regard to
the default by the appellant in not producing his books and papers, it is of little importance to know
whether this case is a commercial one or not.

But the appellant cannot seriously contend that this is not a case of a commercial nature. The
appellant styles himself "contractor," both in his petition of right and in his evidence on discovery; one
of the principal objects of his business is to secure contracts like the present one; he admits, and it is
proved, that the present transaction gave him large profits; but whether it did or not, it cannot be
denied that he was speculating upon the hiring of workmen, and that an operation of that nature is an
act of commerce, just as much as the purchase of wares and goods for resale. Masse[23]; Boisel[24];
1 Pardessus[25]; 1 Namur[26].

Art. 1206 of the Civil Code reads thus:

[Page 669]

The rules declared in this chapter (ch. 9), unless expressly or by their nature limited, apply in
commercial as well as in other matters.

When no provision is found in this Code for the proof of facts concerning commercial matters,
recourse must be had to the rules of evidence laid down by the laws of England.

In chapter 9 of the Code will be found certain rules respecting presumptions in matters of evidence.
They are laid down in arts. 1238 to 1242; they correspond to arts. 1349 to 1353 of the Code
Napoleon, though perhaps different in some respects, especially with regard to presumptions juris et
de jure. For the purposes of this case it is not necessary to examine these differences, as the
presumption arising out of the suppression or destruction of papers is not a presumption juris et de
jure.

It results clearly from the articles of the Code that there are two kinds of presumptions, those which
are legal and those which are not (art. 1238). The first are always established by law (art. 1239) and
the second are defined by the court or judge according to the circumstances of each case (art. 1242).
Legal presumptions can always be contradicted, except:

When on the ground of such presumption the law annuls certain instruments or disallows a suit,
unless the law has reserved the right of making proof to the contrary, and saving what is
provided with respect to the oaths or judicial admissions of a party. Art. 1240.

The other presumptions are those which are not established by law, but merely result from the facts
left to the discretion and judgment of the court, (art. 1242.) The corresponding articles of the Code
Napoleon limit this discretionary power to the cases of présomptions graves, précises et concordantes
or, as the English version of the Code of Louisiana, (art. 2288,) expresses it, "presumptions must be
weighty, precise and consistent." The framers of our Code rightly considered that these minor rules
were matters of doctrine and judicial inference, rather than of positive legislation (1st Rep. 30); but
undoubtedly they would be followed

[Page 670]

in the application of art. 1242, for they are almost as ancient as courts of justice. L'art de Procéder en
Justice, by Lassere[27]; Danty sur Boiçeau, 243; Pothier[28]; 5 Marcadé 218; Menochius[29];
Bédarride[30]; Carrier[31].

I am of opinion that these articles of the Quebec Code settle the point under consideration without
having recourse to the laws of England. The Code has nowhere declared that the destruction of
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documentary evidence, or the refusal to produce the same, whether they be books or other papers,
constitutes a legal presumption against the party so destroying or refusing to produce the same. This
presumption is not one of law, but of fact left to the determination of the trial judge or jury, according to
the circumstances of each case.

What are the facts in the present instance? The appellant has burnt his books and all his papers,
except those relating to the firms of Berger, St. Louis & Cousineau, and St. Louis Brothers, and the
pay-lists and rolls produced at the trial. He had done so long before the institution of the present
action, at a time when he did not have any cause to suspect that the government would contest his
claim. He has himself stated that if he had had any reason to entertain any such suspicion, or that his
books and other papers would have been required for the purposes of this suit, he would not have
destroyed them.

The Crown has assumed that he has destroyed them for the purpose of avoiding the investigation
intended to be made by the commission which was appointed in the spring of 1893. By referring to the
pages of the printed case indicated in page 6 of the respondent's

[Page 671]

factum I have not been able to find any proof of this assertion, but were it true it would appear that this
destruction was made by the appellant merely to prevent the public from becoming acquainted with
his affairs, and not in view of this suit, or to prevent the Crown from verifying the accounts presented
by the appellant as being correct or not.

It is very hard to understand how the appellant could have had this alleged fraudulent purpose, at
least with regard to the destruction of the books of account, when it is known that these books did not
contain a single entry having reference to his contract with the government, a fact which is proved
beyond doubt by his book-keeper, Michaud, whose credibility is not even doubted by the learned
judge who rendered the judgment of the Exchequer Court.

But, says the respondent, the appellant has also destroyed the original time records. It appears that
they were written in pencil on the premises by the various time-keepers on small books or pads, or
even sometimes on flying sheets; they were finally delivered to the book-keeper Michaud, for the
purpose of preparing the pay-lists or rolls; afterwards they became of no value, or of so little use that
Davin and Doheny, two of the timekeepers of the government under Coughlin, the head time-keeper,
appointed by the government, and Coughlin himself, have admitted in their testimony that they did not
know what became of theirs. One of Coughlin's time books was produced by the respondent, but it
covers only a short period, from the 26th January to the 4th February, 1893, and so far it fully confirms
the payrolls rendered to the government.

It is in evidence that these little time books and sheets were for the most part destroyed immediately
or shortly after the pay-lists were prepared, as being

[Page 672]

mere blotters or "notes," and of no use after the pay-lists were compiled. Coughlin says:

Once it was entered from the pass book to the sheet there was no further attention paid to the
book.

Davin says:

Q. What have you done with your time book?—A. I was looking for it. I had it in our own house,
but I was looking it up and I couldn't find it; it is round the house some place.

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Q. But did you look for it before you came here?—A. Yes.

McEwan, one of the appellant's assistant timekeepers, says:

Q. When you reported, you say you reported from a pad?—A. Yes. Q. Did you leave the whole
pad, or detach the leaf?—A. I detached the leaf. After we had reported to Mr. Villeneuve I
detached the leaf and threw it away.

Beaudry, another assistant time-keeper of appellant, says:

Q. Quelles notes preniez-vous?—R. Je prenais mes notes sur un bloc, sur un "pad."

Q. Et puis?—R. Ensuite, je remettais ces notes soit à M. Villeneuve, soit au commis de M. St.
Louis, qui venait à l'office pour prendre le temps.

Q. Est-ce que vous remettiez à ces gens la feuille du "pad" détachée ou si vous faisiez rapport
verbalement?—R. Quelques fois je remettais la feuille détachée et d'autres fois je dictais ce que
j'avais sur ma feuille.

Q. Lorsque vous dictiez vos informations, que faisiez-vous du "pad" sur lequel vous aviez pris
vos notes, ce jour-là?—R. Je le détruisais, monsieur.

Drolet, another assistant time-keeper, says:

Q. Aviez-vous en votre possession du papier, des livres ou autres-documents sur lesquels vous
pouviez prendre des notes du ternes des hommes?—R. Je prenais mes notes sur des feuilles
de papier.

Q. Après que vous aviez ainsi fait votre rapport à M. Villeneuve, que faisiez-vous du livre ou de
la feuille de papier sur laquelle vous aviez pris vos notes?—R. Je la déchirais.

The appellant in his examination on discovery says, speaking of the time books, that is, as explained
by Michaud and Villeneuve, the books kept by the latter

[Page 673]

from his own notes and mainly from the returns of his assistants, and their duplicates made by
Michaud principally from the reports of Villeneuve:

Q. Those time books, after the lists were made, were done away with, you say?—A. Yes.

Q. Immediately after the lists were made up?—A. Generally, yes. I cannot state immediately, but
not more than a few days.

Q. At all events, a few days after the lists were made up you destroyed those books?—A. Yes;
generally.

Q. Was that your general practice, or was it applicable to this case only?—A. No. I copied from
my documents so as not to get mixed up with the court-house works and other works that I was
working at with three or four hundred men. I did not want them mixed up.

Michaud, referring to the final destruction of the books and papers, says:

Q. Then this is the first burn; this selection was the first lot for a burn?—A. Well, for the books it
is the first, but for the time books not the first.

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Q. This is the first burn that you have had, so that you are establishing a custom now, this is the
first of the custom?—A. Well, of course, when I said that, I meant especially the time books.

The appellant had reason to apprehend that the blotters, partly destroyed or lost, could not but bring
trouble to himself, and it is not surprising that he should have destroyed what remained of them with
his books of account, some time in May, 1893, shortly before the sitting of the so-called commission.
He was naturally confident that the pay-lists or rolls which he had preserved, based as they were upon
those blotters, signed by the officers of the government in charge of the works, were the best evidence
he could produce. The appellant is not in the position of a plaintiff who has wilfully destroyed his best
evidence and asked to be allowed to give secondary evidence, a course which would be sanctioned
by no court of justice, nor is it proved that the plaintiff destroyed the best evidence.

[Page 674]

The trial judge was willing to accept the pay-rolls as correct with regard to the Wellington bridge,
because, with regard to that work, the time was kept by Coughlin and his assistants; but it is in
evidence that Michaud, the book-keeper, made these pay-rolls for the Wellington bridge from the
blotters of Ooughlin and his assistants, just as he made them with regard to the Grand Trunk bridge
and lock no. 1, and the stonecutters and masons from the blotters of Villeneuve and his assistants, not
appointed, it is true, by the government, but acting as such with the knowledge and sanction of all the
officers of the government in charge of the works. Villeneuve and his assistants swore positively that
the time kept by them was correctly kept and delivered to Michaud, and the latter and his assistants
likewise swore that the time books and sheets were correctly copied in the pay-lists and pay-rolls filed.
I am therefore at a loss to understand why Michaud's statement based upon pay-lists made by him
from the missing blotters of Ooughlin should be accepted, and those made from the destroyed blotters
of Villeneuve rejected.

These pay-lists and rolls contain the names of all the labourers and the number of hours each of them
worked. They were prepared in the office of the appellant in several parts; one part was sent every
fortnight by the local authorities of the Lachine Canal to the Department of Railways and Canals in
Ottawa, similar to another part which the appellant kept, with this difference, that the one sent to
Ottawa was extended according to the prices of the contract and the one kept by the appellant
contained only the price actually paid by him to the men. The appellant kept duplicates of all these
pay-lists or rolls, the duplicates of the ones sent to Ottawa being signed by the government officers

[Page 675]

in charge of the works, which are filed as a primâ facie case.

Thus, every fortnight, the respondent had the names of the labourers and the time that was charged
by the appellant, and long before the trial and the issue of the commission had full opportunity to
ascertain whether these pay-rolls were false or fictitious, or even beyond expectation. No surprise was
even expressed at the accounts rendered. At any time, even during the trial, it was an easy thing to
examine a few of the workmen, and find out the actual state of facts. In the absence of that evidence
there is every reason to believe that the pay-rolls were correct, supported as they are by the direct and
positive testimony of all the time-keepers and of Michaud and his assistants, who prepared the fists
from their returns.

But there is more. During the examination of the appellant on discovery, which is made part of the
case, the appellant was requested to produce his pay-lists. He has done so, and has placed them in
the hands of the counsel for the Crown, with the understanding that the prices that he paid to the
workmen were not to be made known, a reservation which was perfectly legitimate as it was none of
the business of the Crown or of the public to know what the appellant really paid the men he had
contracted to supply to the government. It is a very remarkable thing that we have never heard of the
result of this production by the appellant, and of the comparison which the respondent had the
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opportunity to make between the pay-rolls sent to Ottawa and the pay-lists showing what was actually
paid to the men; and this alone seems to me a strong presumption that these pay-rolls must be
correct. This fact was established beyond doubt during the trial. Michaud again produced these pay-
sheets of the appellant; a few of the items were examined and

[Page 676]

compared with the pay-rolls remitted to the government, and were found correct. Being finally asked
by Mr. Osier Q.C., for the Crown: "Then these pay-rolls (referring to appellant's pay-lists) correspond
with the government pay-rolls?" Michaud answers: "Yes, sir."

All these facts were proved at the trial, and I cannot understand how any presumption can exist that
the blotters or time books, sheets or memoranda were destroyed for the purpose of preventing the
verification of the accounts rendered to the government, or that, if produced, they would show that the
pay-rolls rendered to the government were not correct. I believe that, under the circumstances, it was
the duty of the trial judge, in accordance with art. 1242 C.C., to decide that the destruction of the
books and papers of the appellant created no presumption against him, and that even if it did it had
been removed by the positive evidence he has adduced.

It is contended by the respondent that the presumption arising from the destruction of the books' and
papers is not one of those to be left to the discretion of the judge under the Code; that in commercial
matters, according to the English rules of evidence to be followed under art. 1206 of the Code, there is
a well-known legal maxim omnia praesumuntur contra spoliatorem, which is a bar to the action of the
appellant.

Let us now see whether the English law supports this contention. The factum for the Crown, quoting
Lawson, a recent American writer on Presumptive Evidence, ed. 1886, states that the rule is as
follows: "Where the spoliator is the claimant, the fact of spoliation alone raises a presumption against
his claim." The learned judge of the Exchequer Court has quoted no authority in support of his
judgment, but in reading his notes that would seem to be the rule adopted by him. He says:

[Page 677]

If we had the time books and other original material from which the pay-lists were compiled, it would of
course be a simple matter to see whether the pay-lists were correct or not.

And he concludes:

The fair presumption to draw from this wilful destruction of the evidence is, I think, that if such
evidence were accessible, it would show that the pay-lists which the suppliant has furnished to
the government and upon which he makes his present demand, do not constitute true and just
accounts of the labour he supplied to the Crown under his contract. The rule of law that justifies
such a presumption is, I think, a most wholesome one, especially where the destruction of
evidence is accomplished with the deliberation and thoroughness that distinguishes the present
one. The petition will be dismissed with costs.

Why punish the appellant for the innocent doings of the time-keepers, who alone and without any
suggestion from the appellant have destroyed the so-called original material, or at least the greatest
portion of it, as mere waste paper? How could the learned judge come to such a conclusion in the
face of the clearest evidence that the pay-lists or rolls were made correctly from the blotters, that is the
little time books, pads, sheets and memoranda kept by the head time-keepers and their assistants?
The presumption, if any there was, disappears before this additional and express evidence.

The learned judge does not seem to doubt the credibility of all these witnesses. The appellant is not
charged by him with any conspiracy or collusion with the time-keepers, or the government officers.
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They are not even suspected of dishonesty. He remarks:

In these circumstances, he (the appellant) had called so far as was possible all the time-keepers
and clerks who were engaged in compiling the lists to testify that they had done their work
honestly and faithfully. There may be a question, though none was raised, how far, in such a
case as this, such evidence is admissible for the purposes for which it is tendered. But whether
admissible or not, the evidence was of necessity of a general character, not touching or directly
supporting particular items in the accounts, and cannot, I think, be

[Page 678]

accepted as excluding all chances of fraud, and as being conclusive of the correctness of such
accounts.

The question is not whether there are chances of fraud, but whether as a matter of fact there was
fraud in the preparation of the pay-lists from the time books and blotters missing. I have no doubt in
my mind that the evidence repels any idea of fraud.

As to the reproach that the evidence was of a general character, it seems to me that it was as precise
and direct as the nature of the case would permit. What evidence can be more positive than the
testimony of the book-keeper and time-keepers and their assistants, who swear that the labour
supplied by the appellant is as stated in the detailed pay-lists and rolls produced, and that the
appellant paid for the amount of that labour. His proof, considered independently of the written
certificates of the officers in charge, is as direct and precise as it possibly can be, and nothing more is
required under the English rules of evidence or article 1204 of the Quebec Code.

With regard to the English jurisprudence, the counsel for the respondent has quoted one English
decision; he has relied especially upon American precedents, and no doubt in a case like this, they
are entitled to much weight and consideration, although not binding. Attorney General for Quebec v.
The Queen Ins. Co.[32]; Bank of Toronto v. Lambe[33]. It is remarkable, however, that nearly all the
American authorities cited by the Crown, if not all, do not sustain respondent's contention. True in rule
25, Lawson lays down that the fact of spoliation standing alone may defeat a claim; but on the next
page, in rule 26, he adds:

But the presumption in disfavour of a spoliator does not arise where the document concealed or
destroyed is otherwise proved in the case, or the spoliation is open and for cause.

[Page 679]

Lawson quotes Butt v. Wood[34], also relied upon by the respondent, where it was said:

Where there is express and positive evidence there is no place for presumption or inference. It is
only in reference to the contents of a paper destroyed or withheld that the maxim can have
application, and where the contents are proved there is no occasion for resort to the maxim.

The writer might have quoted more of the opinion of the court in Bolt v. Wood (1). At another page, the
court said:

It is too broad and indefinite in saying that everything may be presumed against the destroyer of
the will.

His case evidently must be less favourable than that of the destroyer of his own papers. However, the
learned judge, Campbell J., finally observes:

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The principle of the maxim omnia prœsumuntur in odium spoliatoris, as applicable to the
destruction or suppression of a written instrument, is that such destruction or suppression raises
a presumption that the document would, if produced, militate against the party destroying or
suppressing it, and that his conduct is attributable to this circumstance, and therefore slight
evidence of the contents of the instrument will usually in such a case be sufficient. There is great
danger that the maxim may be carried too far. It cannot properly be pushed to the extent of
dispensing with the necessity of other evidence, and should be regarded as mere matter of
inference in weighing the effect of evidence in its own nature applicable to the subject in dispute.

On page 156, Lawson quotes a decision of the Supreme Court of Indiana in Thompson v.
Thompson[35], decided in appeal in 185 7, which is interesting, especially as it is quoted by the
respondent as one of the authorities in her favour. The quotation is as follows:

It is undoubtedly true that a party who destroys the evidence by which his claim or title may be
impeached raises a strong presumption against the validity of his claim, and if the plaintiff
destroyed papers of the estate, and especially receipts for taxes, which are important
documents, involving in many instances the validity of a title, he committed a great wrong; but
yet the presumption against him would not be of that

[Page 680]

conclusive character indicated by the destruction. The jury were told in effect that if the plaintiff
destroyed any papers of the deceased the defendant was entitled to a verdict. The law of nations
as recognized in continental Europe, under certain circumstances, raises a conclusive
presumption against the spoliator of papers indicating the national character of a vessel; but
even that rule does not ordinarily prevail in England and the United States.

While reviewing the American jurisprudence, it will not be out of place to point out a few more cases,
especially one or two relied upon by the respondent. The first in point is Askew v. Odenheimer[36],
decided in 1831 by the United States Circuit Court. It was a strong case of fraud by a partner against
his co-partner. The court carried the doctrine contra spoliator em almost to its extreme limit, though
perhaps not too far under the special circumstances of the case. Yet the following language is
remarkable:

These cases fully establish the principle that in cases of fraud, suppression and spoliation, the
oath of the party injured is evidence, but not conclusive; the court must judge of the weight it is
entitled to under all the circumstances of the case.

The mere circumstance of a party having destroyed or suppressed a deed, book or paper, will
not induce a court of equity to decree a penalty against him to deprive him of what may be his
just right, to dispense with such secondary proof of the existence and contents of the paper
which has been so suppressed or destroyed as may be in the power of the party injured to
produce, or to give a decree in his favour without some proof.

In McReynolds v. McCord[37], decided in 1837 by the Supreme Court of Pennsylvania, the rule is thus
laid down at pages 290 and 291:

Everything is to be presumed in odium spoliatoris, and had it certainly appeared that the
destroyed paper purported to be an agreement such as is attempted to be established, it would
have sufficed for the admission of subsequent evidence of its contents * * But
before he can be fixed with the character of a spoiler, the purport of the paper must be proved to
have been what it is surmised to have been. The presumption in favour of innocence which
arises wherever there is room for it,

[Page 681]
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xcludes intendment that a paper destroyed by a man in a confidential relation was of value to
any one. There are few men who have not papers which it would be not only innocent but
prudent to destroy.

In Life and Fire Insurance Co. v. The Mechanic Fire Insurance Co. of New York[38], Sutherland J., for
the Supreme Court of New York, said:

There is not a particle of evidence that the defendants ever actually received any portion of this
money. It is said, however, that this fact would have appeared if the books called for had been
produced, and that the judge erred in not charging the jury that the refusal of the defendants to
produce those books afforded presumptive or primâ facie evidence of that fact. I do not
understand the rule to be that a party has a right to infer, from the refusal of his adversary to
produce books or papers which may have been called for, that if produced they would establish
the fact which he alleges they would prove. The rule is this: The party in such a case may give
secondary or parol proof of the contents of such books or papers if they are shown or admitted to
be in the possession of the opposite party; and if such secondary evidence is imperfect, vague
and uncertain as to dates, sums, boundaries, &c., every intendment and presumption shall be
against the party who might remove all doubt by producing the higher evidence.

This ruling was re-affirmed by the Supreme Court of the United States in Hanson v. Eustace[39].

The respondent has also referred us to Joannes v. Bennett[40], decided in appeal in 1862 by the
Supreme Court of Massachusetts, but here again the decision of the court does support the
contention. Bigelow C.J., for the court said:

A person who has wilfully destroyed the higher and better evidence ought not to be permitted to
enjoy the benefit of the rule admitting secondary evidence. He must first rebut the inference of
fraud, which arises from the act of a voluntary destruction of a written paper, before he can ask
to be relieved from the consequences of his act by introducing parol evidence to prove his case.

Pothier, Obligations no. 815, Merwin v. Ward[41], and Duvall v. Peach[42], may be also quoted in
support of this rule.

[Page 682]

The case of St. Louis is not a parallel one; he has not destroyed his primary or "higher and better
evidence" which is before us. He has merely destroyed papers he could not offer in evidence, and
which could not be produced at the trial without the consent of the adverse party.

An American decision quoted by the appellant may well be noticed here; I refer to the case of Carrier
v. The Troy Lumber Company[43], decided in appeal in 1891 by the Supreme Court of Illinois. Mr.
Justice Wilkin said for the court at page 539:

It will not be seriously contended that a party is to be treated as a "spoilator of evidence" merely
because he does not produce books and papers which he could only offer in evidence by
consent of his adversary or because some fact might be developed on the trial which would
render them competent. It was said in Merwin v. Ward[44], "Where a party has in his possession
a deed or other instrument necessary to support his title, and he refuses to produce it, and
attempts to make out his title by other evidence, such refusal raises a strong presumption that
the legitimate evidence would operate against him. But this rule does not apply to such
documents as a party has no right to give in evidence without the consent of his adversary."

While I am not prepared to accept this doctrine in its broad terms and without some reservation, I am
ready to admit that it has much force in the present instance.

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If we direct our attention more particularly to the jurisprudence of England, where merchants, as in the
United States and in this country, are not forced to keep books except to avoid certain penalties under
the bankrupt laws, we find precisely the same rules of law. It must be remarked that cases of this kind,
where parties to a suit stand accused or guilty of withholding or destroying papers or documents which
are or may be used in evidence, are not as frequent in England as in the United States, and it is not
surprising

[Page 683]

that the decisions are not so numerous and do not present as many illustrations of the maxim. The
Canadian reports present no case of that description, except one or two in Ontario relating to the
election or revenue laws, which can hardly be considered as applicable to a suit like the present one,
yet they do not disagree with the English decisions. Attorney General v. Halliday[45]; Hunter v.
Lauder[46]. See also Ockley v. Masson[47].

Armory v. Delamirie, reported in 1 Strange 504, and decided in 1721, has been considered as the
leading English case on the subject[48], although I must confess it does not seem to be quite in point.
The plaintiff, a chimney-sweep boy, found a jewel and carried it to the defendant's shop, who was a
goldsmith, to know what it was. The stones in the jewel were taken out, and upon a suit in trover by
the boy Chief Justice Pratt directed the jury, and I believe properly so – in fact his direction has been
followed in Lvpton v. hite[49], 1808, and Mortimer v. Cradock[50], 1843—that unless defendant did
produce the jewel they should presume the strongest against him and make the value of the best
jewels the measure of their damage, which they accordingly did. The goldsmith was therefore in the
position of a thief, which is the true position of the "spoliator" or "spoiler," and he can hardly be
compared to the destroyer of his own property. The appellant is not even in the position of a legatee or
heir at law who has destroyed a will or paper of a deceased person, or of a partner who has done
away with the books of his firm, or of an agent who has removed the books showing his transactions
on behalf of his principal. The appellant is his own master; he has taken nothing

[Page 684]

from the respondent; and I cannot understand how the maxim contra spoliatorem can generally be
applied to a party who withholds or destroys his own papers.

One of the earliest cases reported is, I believe, Roe v. Harvey[51], rendered by the Court of King's
Bench in 1769, when Lord Mansfield presided over that court. He first laid down "that in this action,
the plaintiff cannot recover, but upon the strength of his own title," which he had refused to produce.
This ruling might be perfectly correct; in fact it is in accord with Joannes v. Bennett[52] and other
cases quoted above. Mr. Justice Yates, who dissented, thought that "the plaintiff's counsel was not
obliged to produce this deed; no man can be obliged to produce evidence against himself. The only
consequence of notice to produce it would have been the admitting inferior evidence." Mr. Justice
Aston, who was also the trial judge, said: "I thought the refusing to produce the deed was a want of
fairness, and that the plaintiff had not made a complete title without it." Mr. Justice Willes thought
likewise that "the title of the plaintiff was not complete, the deed not being produced." Lord Mansfield
concluded by observing "that in civil causes, the court will force parties to produce evidence which
may prove against themselves; or leave the refusal to do it (after proper notice) as a strong
presumption to the jury."

No exception has been taken to the decision of the court; but the doctrine laid down by Lord Mansfield
has been attacked by eminent jurists and is no longer accepted as law, if it ever was.

It was vigorously assailed as early as in 1806 by Sir William D. Evans, in his notes to Pothier's
Obligations, vol. 2, pp. 169, 337, quoted with approbation by Mr. Best in his learned treatise on
Evidence. He considers that the language of Lord Mansfield means that

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[Page 685]

"the refusal to produce was regarded as a presumption of something fatal in the contents," and he
concludes:

That a party shall be actually forced to produce the evidence so as to be punished for refusal is a
proposition totally unwarranted by authority, and I suppose that is not what was meant by the
expressions above quoted, and what is said respecting leaving the refusal as a presumption to
the jury should be received with considerable qualification; for it cannot be admitted that such a
presumption should stand instead of all other evidence, and supply the total deficiency of proof.

Even if the doctrine of Lord Mansfield is as severe as it appears to be, the presumption which he
draws from the suppression of evidence, and it cannot be regarded in a more favourable light than the
destruction of evidence, has been entirely removed in the case of the appellant by positive and clear
evidence to the contrary.

But the doctrine goes too far and is contradicted by a long array of decisions. Chief Justice Holt held in
1701, that "if a man destroys a thing that is designed to be evidence against him a small matter will
supply it." And therefore, the defendant having torn his own note, signed by him, a copy was admitted
to be good evidence[53].

The next case is that of Sir Edward Seymour, 1711[54]. There the defendant was withholding the title
of the plaintiff, who, in consequence, was allowed to prove the contents of the deed by witnesses. A
similar decision was rendered in 1718 in Young v. Holmes[55].

The case of Cow per v. Earl Cow per, 1734[56], is an important one. The Master of the Rolls (Sir
Joseph Jekyl), after a careful review of all the decisions to date, said:

There have been no cases at law, and these are all the material ones that I have heard cited in
equity; but though there may have been others, the names of which I cannot at present recollect,
yet do I not remember or believe that there has been any one where there was not

[Page 686]

some proof made of the existence of the deed or writing supposed to be suppressed or
destroyed.

Then comes Saltern v. Melhuish 1754[57], where Lord Hardwicke said:

All cases for relief against spoliation come in a favourable light; but notwithstanding the rule, that
things are to be taken in odium spoliatoris, yet it ought to have no other consequence but this,
that where the contents of the deed destroyed are proved the party shall have the same benefit
as he would if the deed itself was produced. This I lay down as a principle.

In Cooper v. Gibbons, 1813[58], Gribbs J. said:

The non-production of the plaintiff's books, after a notice to produce them, merely entitled the
defendant to give parol evidence of their contents.

In Lawson v. Sherwood, 1816[59], Lord Ellenborough said:

Nor can I infer due notice (notice of dishonour of a bill of exchange) from the non-production of
the letter; the only consequence is that you may give parol evidence of it.

In Barker v. Ray, 1826[60], Lord Eldon observed:

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To say that once you prove spoliation you will take it for granted that the contents of the thing
spoliated are what they have been alleged to be may be, in a great many instances, going a
great length.

In Bate v. Kinsey, 1834[61], Lord Lyndhurst said:

It is said that the deed was in court, and that parol evidence of its contents ought to have been
admitted. It is not, however, even suggested that the defendant was prepared with any other
secondary evidence.

Alderson B.:

I do not give my assent to the case of Roe v. Harvey[62].

The next case is Braithwaite v. Coleman[63], decided in 1835 by the Court of King's Bench. The court
differed on the application of the principle; it is thus referred to in 1 Smith L. C. 6th Am. ed. at page
539:

[Page 687]

It was an action by the endorsee against the drawer, and the only evidence of notice of
dishonour was the following statement made by the defendant: "I have several good defences to
the action; in the first place the letter" (containing the notice of dishonour) "was not sent to me in
time." A notice to produce the letter had been given, but it was not produced. Lord Denman C.J.
thought that as the defendant withheld the letter, the jury were justified in assuming, as they
actually had done, that if produced it would appear to have been in time. But Littledale, Patterson
and Coleridge JJ. thought that the letter might have been dated on the proper day, but sent by
private band, or in some way in which it would not have arrived in proper time; and that the
defendant would not be bound to produce a letter which on the face of it might make against him,
and which he might not have evidence to explain, and a rule for a new trial was made absolute.

Then comes Curlewis v. Corfield in 1841[64], where a letter was shown to have been sent to the
defendant the day after dishonour of a bill of exchange, and the defendant, an attorney, afterwards
raised the objection of the want of due presentment, but not want of notice. The jury were warranted in
inferring that the letter contained due notice of dishonour. Lord Denman C.J. said:

The notice to produce, not complied with, must have some effect. To that is added the
conversation of the plaintiff's attorney in which the defendant placed his defence on a different
ground from that of omission to give notice of dishonour. The case therefore is like Wilkins v.
Jadis[65].

Patterson J.:

Notice was given to produce that letter and it was not produced. These facts alone would not be
sufficient, but then comes the conversation of the defendant with Richards; and the whole
evidence forms a case that might properly go to the jury.

Williams and Coleridge JJ. concurred.

The last case I have been able to collect is The Attorney General v. The Dean and Cartons of Windsor
in 1858[66], the only English case quoted by the respondent. The Master of the Rolls (Sir John
Romilly) referring to the suppression unexplained of a deed, said:

The next question urged, and which seems, from the reign of James I. to have been always
urged by the Dean and Canons as their

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[Page 688]

principal ground of defence, is whether the deed of Elizabeth was executed by the Dean and
Canons, and if not, whether it had any binding force as against them. If I thought that such
execution of the deed was material it would be difficult, in the state of the evidence before me as
to the existence of this deed, to hold that it was not executed by the Dean and Canons. It is plain
that they had the original in their possession, executed at least by the Queen, and that they
made a copy of it in their books. Evidence is always to be taken most strongly as against the
persons who keep back a document, and the circumstance that the body keeping it back is a
corporation does not in the slightest degree affect this principle, although it exonerates the
present members from blame in that respect. It is true, it is urged, that this deed is lost, and that
nothing of wilful suppression is to be presumed against the predecessors of the present
corporation, and yet the circumstances undoubtedly require an explanation, which they cannot
now receive.

This decision is in accordance with Crisp v. Andersen[67], where it was held that if a man withhold an
agreement under which he is chargeable it is presumed to have been properly stamped. But suppose
the Dean and Canons of Windsor had established that in fact their predecessors had refused to
accept the trust created by the deed of Queen Elizabeth, can it be supposed that the Master of the
Rolls would have applied the presumption against this evidence? The presumption would have been
removed just as it was in Crowther v. Solomons[68], and The Marine Investment Co. v. Haviside[69],
where, reaffirming Crisp v. Anderson (1), the court held, however, that the presumption of the
document being regularly stamped as against the spoliator, was rebutted by the evidence that it had
been inspected a short time before the trial and that it was not stamped.

To these decisions a few may be added from old digests:—Petersdorff's Abridgement[70]:

Presumptions are not proofs; they stand instead of proof until the contrary is established.

[Page 689]

Comyn's Digest[71]:

On refusal to produce an instrument after notice secondary evidence is admissible.

2 T.R. 201; Id. p. 430:

A copy or proof of the contents has been allowed when a deed was i embezzled or detained by
the other party. 1 Keb. 12; 3 Keb. 2.

Tidd's Practice[72]:

On a notice to produce books of account, if they are not produced this circumstance affords no
legal ground for any inference respecting their contents, but merely entitles the opposite party to
prove their contents by parol evidence.

See also 3 Blackstone[73]; Smith, L. O.[74]; Broom, Legal Maxims[75]; Taylor on Evidence[76];
Starkie on Evidence[77]; Best on Evidence[78];. Phillips on Evidence[79]; Stephen[80].

Great stress has been laid upon the cost of the works as compared with the original estimate.
Explanations are not wanted for this result, which Mr. Justice Taschereau has incidentally noticed. To
my mind this fact creates no presumption against the appellant, and is of no importance in the
appreciation of the evidence.

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I have not alluded to the memorandum book of Doheny. Mr. Justice Taschereau has done full justice
to this branch of the case. I agree with him that his evidence is utterly unreliable.

Taking this view of the law and facts of the case, I have come to the conclusion that under both the
Quebec Code and the English law the appellant cannot be regarded as a spoliator, and that even if he
could he

[Page 690]

has fully rebutted the presumption resulting from that alleged fact by express and positive evidence to
the contrary. The appeal should be allowed with costs and judgment entered for the full amount of the
payrolls rendered to the respondent, less the charges made for the services of the clerks and time-
keepers, the whole as directed by Mr. Justice Taschereau.

Appeal allowed with costs.

Solicitor for the appellant: J. U. Emard.

Solicitor for the respondent: W D. Hogg.

[1] 4 Ex. C.R. 185.

[2] Vo. Obligation no. 4238.
[3] Droit Comm. vol. 4 no. 2471.
[4] Par. 1234.
[5] 138 Ill. 533.
[6] 56 Miss. 136.
[7] 8 U. C. L. J. (N.S.) 17.
[8] 24 Beav. 679.
[9] 43 Conn. 227.
[10] 5 Allen (Mass.) 169.
[11] See per Lord Eldon in Barker v.Ray, 2 Russ. 63; and Best on Evidence, par 414.
[12] Par. 31.
[13] Ed. 1878, par. 107.
[14] Ed. 1878, p. 358.
[15] 4 Contrats 315.
[16] No. 404.
[17] Remy's ed. vol. 2, p. 178.
[18] Pp. 210 to 213.
[19] No. 404.
[20] Sur. art. 1331.
[21] No. 355.
[22] 3rd ed. 1883, art. 1331.
[23] No. 20.
[24] No. 39.
[25] No. 36.
[26] P. 42 and authorities quoted at page 43 in note 1.
[27] Ed. 1680, pp. 87-96.Z
[28] Obli., n. 849.
[29] De Prces., lib. 1.
[30] 1 Dol et Fraude, 243-249.
[31] Obli., n. 448.
[32] 3 App. Cas. 1090.
[33] 12 A . C . 575.
[34] 56 Miss. 136.
[35] 9 Ind. 323.
[36] 1 Baldwin 389.
[37] 6 Watts 288.
[38] 7 Wend. 31.
[39] 2 How. 653.
[40] 5 Allen (Mass.) 169.
[41] 15 Conn. 377.
[42] 1 Gill (Md.) 172.
[43] 138 III. 533.
[44] 15 Conn. 377.
[45] 26 U.C.Q.B. 397.
[46] 8 U.C. L.J.(N.S.) 17.
[47] 6 Ont. App. R. 108.
[48] 1 Smith, L.C. 9 ed. 385: Shirley, L.C. 4 ed. 401.
[49] 15 Ves. 439.

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[50] 12 L. J. (C. P.) 166.
[51] 4 Burr. 2484.
[52] 5 Allen (Mass.) 169.
[53] Anon. 1 Ld. Raym. 731.
[54] 10 Mod. 8.
[55] 1 Strange 70.
[56] 2 P. Wm. 719.
[57] 1 Ambler 249.
[58] 3 Camp. 363.
[59] 1 Starkie 315.
[60] 2 Kuss. 73.
[61] 1 Or. M. & R. 43.
[62] 4 Burr. 2484.
[63] 4 Nev. & Man. 654.
[64] 1 Q.B. 814.
[65] 1 M. & Robb 41.
[66] 24 Beav. 706.
[67] 1 Stark 35.
[68] 6 C.B. 758.
[69] L. R. 5 ILL.-624.
[70] Vo. evidence, p. 170.
[71] Vol. 1, Testmoigne, p. 436.
[72] Ed. 1821, p. 835.
[73] Ed. 1830, p. 371.
[74] Am. ed. 1868, pp. 589 to 592.
[75] 5th Am. ed. p. 633.
[76] Ed. 1895, par. 116, 117.
[77] 5th Am. ed. p. 667, no. 748-756.
[78] Ed. 1893, p. 373.
[79] Ed. 1849, vo. 2 p. 222, vo. 5 p. 424.
[80] Digest of the Law of Evidence, ed. 1895, p. 77.

Federation of Law Societies of Canada

By for the law societies members of the

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 243

R. v. Ouellette

[1980] 1 SCR 568, 1980 CanLII 9 (SCC)

1/6/2019 CanLII - 1980 CanLII 9 (SCC) 244

R. v. Ouellette, [1980] 1 SCR 568, 1980 CanLII 9 (SCC)

Date: 1980-03-18
Other 111 DLR (3d) 216; 14 CR (3d) 74; 52 CCC (2d) 336
citations:
Citation: R. v. Ouellette, [1980] 1 SCR 568, 1980 CanLII 9 (SCC), <http://canlii.ca/t/1mjtk>, retrieved on 2019-
01-06

SUPREME COURT OF CANADA

R. v. Ouellette, [1980] 1 S.C.R. 568
Date: 1980-03-18

Her Majesty The Queen Appellant; and

Noël Ouellette Respondent.

1979: December 6; 1980: March 18.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law — Summary convictions — Appeal costs — Payment by the Crown — Criminal Code,
R.S.C. 1970, c. C-34, ss. 720(1), 738(4), 744(1), 748, 752.1, 755, 758, 759, 771 — Interpretation Act,
R.S.C. 1970, c.1-23, s. 16.

Respondent was found guilty by a summary conviction court of failing to stop at the scene of an
accident and ordered to pay a fine of $250 and costs or one month in jail in default of payment. His
appeal to the Superior Court from this judgment was dismissed as to the conviction but allowed as to
the sentence, which was reduced to a $100 fine. In addition, the Superior Court judge ordered the
Crown to pay the costs of the appeal, which he set at $75. Appellant appealed to the Court of Appeal
from the part of the judgment which ordered it to pay costs to respondent. A majority of the Court of
Appeal dismissed the appeal and in its turn ordered the Crown to pay the costs of this second appeal,
amounting to $200. Hence the appeal to this Court, which must decide whether the Superior Court
and the Court of Appeal could order Her Majesty to pay costs to respondent.

Held: The appeal should be dismissed.

The dissenting judge on the Court of Appeal relied on the common law rule in concluding that the
Crown cannot be obliged to pay costs. However, this rule is far from being as firm and precise as he
considered it to be, and it is by no means certain that at the present time it prevents the courts from
ordering the Crown to pay costs. In any case, in the instant case the question can be resolved solely
on the basis of the relevant provisions of the Criminal Code. As s. 16 of the Interpretation Act does not
exclude the rule by which the various provisions of the statute are each interpreted in light of the
others, ss. 758 and 771(3) of the Criminal Code must be interpreted as implicitly binding Her Majesty,
when they are read not in isolation but in the context of Part XXIV on summary convictions. With
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regard to an appeal by trial de novo in the Superior Court, Parliament wished to confer on the Superior
Court the widest
[Page 569]

possible discretion regarding costs, a discretion limited only by what is just and reasonable. In
some cases, it would not be either just or reasonable that the Crown be not ordered to pay the costs
of the appeal. It follows that the provision of s. 758 is binding on Her Majesty. With regard to the costs
of the appeal to the Court of Appeal, they are covered by s. 771(3), which is also binding on Her
Majesty. It is worded in terms at least as broad as s. 758, and it would be extraordinary for the Court of
Appeal to have powers in the matter of costs less wide than the Superior Court, especially as no
action can be brought before it without leave.

Johnson v. The King, [1904] A.C. 817; Vaithinatha Pillai v. The King-Emperor (1913), 29 T.L.R.
709; Attorney-General for British Columbia v. Canadian Pacific Railway, [1906] A.C. 204; Royal Bank
of Canada v. Rex, 1913 CanLII 401 (UK JCPC), [1913] A.C. 283, reversing (1911), 17 W.L.R. 508;
Attorney-General for the Dominion of Canada v. Ritchie Contracting and Supply Company, 1919
CanLII 418 (UK JCPC), [1919] A.C. 999; Caron v. The King, 1924 CanLII 461 (UK JCPC), [1924] A.C.
999; Attorney-General for Quebec v. Nipissing Central Ry. Co. and Attorney-General for Canada,
1926 CanLII 280 (UK JCPC), [1926] A.C. 715; Corporation of the City of Toronto v. The King, 1931
CanLII 465 (UK JCPC), [1932] A.C. 98; Treasurer of Ontario v. Blonde and Treasurer of Ontario v.
Aberdein, 1946 CanLII 349 (UK JCPC), [1947] A.C. 24; Attorney-General for Saskatchewan v.
Canadian Pacific Ry. Co., 1953 CanLII 416 (UK JCPC), [1953] A.C. 594; Attorney-General for Ontario
v. Israel Winner, 1954 CanLII 289 (UK JCPC), [1954] A.C. 541; Russell v. The Queen (1882), 7 A.C.
829; Attorney-General of Ontario v. Mercer (1883), 8 A.C. 767; Hodge v. The Queen (1883), 9 A.C.
117; Attorney-General for Quebec v. Reed (1884), 10 A.C. 141; Liquidators of the Maritime Bank of
Canada v. Receiver-General of New Brunswick, [1892] A.C. 437; British Coal Corporation v. The King,
1935 CanLII 308 (UK JCPC), [1935] A.C. 500; Attorney-General of Canada v. Jackson, 1944 CanLII
310 (NB CA), [1945] 2 D.L.R. 438; R. v. Guidry, 1965 CanLII 710 (NB CA), [1966] 2 C.C.C. 161; R. v.
Higgins (1977), 1 C.R. (3d) 382; Ferguson v. Attorney-General of Canada, [1971] 2 W.W.R. 637; Re
Imperial Canadian Trust, 1942 CanLII 295 (MB CA), [1942] 2 D.L.R. 96; Provincial Treasurer for the
Province of Manitoba v. Minister of Finance for Canada, 1943 CanLII 29 (SCC), [1943] S.C.R. 370,
referred to.

APPEAL from a judgment of the Court of Appeal of Quebec,[1] dismissing the appeal from a
judgment of the Superior Court and ordering the Crown to pay the costs of the appeal. Appeal
dismissed.
[Page 570]

Jean-Marie Tanguay, for the appellant.

Richard Perras, for the respondent.

English version of the judgment of the Court delivered by

BEETZ J.—The issue is whether the Superior Court, sitting in appeal from a judgment of a summary
conviction court, and the Court of Appeal, sitting in appeal from the judgment thus given by the
Superior Court, may order Her Majesty to pay costs to respondent.

The circumstances which gave rise to the case are straightforward and not in dispute.

Respondent was found guilty by a summary conviction court, pursuant to s. 233(2) of the Criminal
Code, of failing to stop at the scene of an accident, and ordered to pay a fine of $250 and costs or one
month in jail in default of payment. He appealed from the conviction and the sentence to the Superior

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Court. His appeal was dismissed as to the conviction but allowed as to the sentence, which was
reduced to a $100 fine. Boilard J. of the Superior Court handed down the following judgment regarding
the costs of appeal:

[TRANSLATION] That leaves the costs of appeal that may exist, which as Mr. Beaudoin pointed
out are now the same as the conviction—and I refer to these when I deal with the appeal from
the sentence.

The accused was right to appeal from the sentence. I allowed his appeal, I did not give him a
medal, I lowered

. I reduced the sentence, I made it, in my humble opinion and with the greatest respect for the
trial judge, I made it what appeared to me to be adequate. I think it would be unfair to oblige the
accused to pay the costs of appeal in order to come before a court and ask it to make, within
reasonable and adequate limits, a sentence which he complains of.

I think, as I say, that it would clearly be improper to oblige him to invest a sum of money to ask a
court to reduce a penalty which has been imposed on him.

For this reason, I have decided to grant the accused, or rather the appellant, costs which I now
set at seventy-five dollars ($75.00), and I order the Attorney General to pay the said sum of
seventy-five dollars ($75.00) within thirty (30) days of this judgment to the office of
[Page 571]

the Clerk of the Peace and the Crown for the district of Terrebonne.

On receipt of the said sum, the Clerk shall pay it to appellant or to any person authorized by the
latter to receive it.

Appellant appealed to the Court of Appeal from this judgment, and in a majority decision by Kaufman
J., concurred in by Dubé J., the Court dismissed the appeal and in its turn ordered the Attorney
General to pay respondent the costs of the appeal, amounting to $200. Paré J. dissented on the
ground that, at common law, [TRANSLATION] "the Crown cannot be obliged to pay costs unless this
is expressly provided for by law", and that the provision relating to the appeal heard by the Superior
Court, s. 758 of the Criminal Code, contains [TRANSLATION] "no provision expressly applicable to
Her Majesty", and cannot be applied to her in view of s. 16 of the Interpretation Act, R.S.C. 1970, c. I-
23:

16. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or
prerogatives in any manner, except only as therein mentioned or referred to.

The dissenting judge would therefore have reversed the judgment of the Superior Court and
recommended only that the Attorney General pay the office of the Clerk of the Peace and the Crown
the sum of $75 to be disposed of in accordance with law.

This is the decision against which this appeal is brought.

In my view, the Court of Appeal correctly interpreted the relevant sections of the Criminal Code, the
provisions of which suffice to dispose of the case. However, before coming to that, it may be useful to
show that the common law rule on which the dissenting judge relied is far from being as firm and
precise as he considered it to be.

This is how Blackstone states this rule in his Commentaries on the Laws of England, 18th ed., 1829,
Vol. III, *399:

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The king (and any person suing to his use) shall neither pay nor receive costs; for ... as it is his
prerogative not to pay them to a subject, so it is beneath his
[Page 572]

dignity to receive them.

(See, to the same effect, Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown, 1820,
at pp. 310 and 311).

In a frequently cited case, Johnson v. The King[2], the Judicial Committee of the Privy Council
announced that it proposed to abide by this rule in the future but qualified it as follows (at p. 825):

... their Lordships are of opinion that, in dealing with costs in cases between the Crown and a
subject, this Board ought to adhere to the practice of the House of Lords, and that in future the
rule should be that the Crown neither pays nor receives costs unless the case is governed by
some local statute, or there are exceptional circumstances justifying a departure from the
ordinary rule.

In another case, Vaithinatha Pillai v. The King-Emperor[3], the Judicial Committee indicated its
intention to follow the same policy in criminal cases.

It should be observed, first of all, that the question appears to be regarded as one of practice rather
than of prerogative.

It must also be noted that the rule is not absolute: apart from any legislative provision, it contemplates
the possibility of derogations which are not identified apart from their exceptional nature.

Furthermore, the Judicial Committee Act, 1833 (3 & 4 Will. IV, c. 41), one of the principal statutes
setting forth the jurisdiction of the Judicial Committee of the Privy Council, includes a provision, s. 15,
on the awarding of costs, but does not empower the Judicial Committee either expressly or by
implication to award them to the Crown or against it.

In spite of the absence of any enabling legislative provision, and despite the rule which it had
[Page 573]

just created for itself in Johnson, the Judicial Committee, though without mentioning the exceptional
nature of the circumstances, at least not expressly, has several times ordered the Crown to pay costs
or awarded costs to the Crown, up to the last cases which it heard on Canadian matters: Attorney-
General for British Columbia v. Canadian Pacific Railway[4]; Royal Bank of Canada v. Rex[5];
Attorney-General for the Dominion of Canada v. Ritchie Contracting and Supply Company[6]; Caron v.
The King[7]; Attorney-General for Quebec v. Nipissing Central Ry. Co. and Attorney-General for
Canada[8]; Corporation of the City of Toronto v. The King[9]; Treasurer of Ontario v. Blonde and
Treasurer of Ontario v. Aberdein[10]; Attorney-General for Saskatchewan v. Canadian Pacific Ry. Co.
[11]; Attorney-General for Ontario v. Israel Winner[12].

In fact, the Judicial Committee merely continued, in the matter of costs, the policy which it followed
before the Johnson case: Russell v. The Queen[13]; Attorney-General of Ontario v. Mercer[14];
Hodge v. The Queen[15]; Attorney-General for Quebec v. Reed[16]; Liquidators of the Maritime Bank
of Canada v. Receiver-General of New Brunswick[17].

It is true that, for historical reasons, the conclusion of a decision of the Judicial Committee takes the
form, on costs as with anything else, of a recommendation to Her Majesty, but this is purely a matter
of form: British Coal Corporation v. The King[18], at p. 512.

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In Canada, practice appears to have varied at different times and depending on the province. In
[Page 574]

the absence of legislative provisions empowering them to award costs to the Crown or against it,
certain courts have felt themselves bound by Johnson: this is what the Supreme Court of Alberta held
in R. v. Royal Bank of Canada[19]; this case was taken on appeal to the Judicial Committee, which on
this point disregarded its own decision in Johnson and ordered the Crown to pay costs in all courts
(supra).

The Court of Appeal of New Brunswick also followed this practice in Attorney-General of Canada v.
Jackson[20], a civil case, but reversed field in R. v. Guidry[21], a summary conviction case.

In Nova Scotia, it appears to be the practice to award costs to the Crown, or to order it to pay costs on
appeal in summary conviction cases: R. v. Higgins[22].

In Ontario, legislative provisions empowered the courts to make rules of practice allowing them to
order the Crown to pay costs; after these rules were repealed, the custom has continued without
legislative foundation; this sequence of events is described in a judgment of the Supreme Court of
British Columbia, Ferguson v. Attorney-General of Canada[23], and a decision of the Court of Appeal
of Manitoba, Re Imperial Canadian Trust[24], reversed by this Court, but on the merits, and without
any particular discussion of the question of costs: Provincial Treasurer for the Province of Manitoba v.
Minister of Finance for Canada[25].

In cases cited in the Ferguson judgment, the common law rule is described as an anachronism that
should be eliminated. Accordingly, it is by no means certain that at the present time the common law
prevents the courts from ordering the Crown to pay costs.

In any case, the question can be resolved solely on the basis of the relevant provisions of the
[Page 575]

Criminal Code. However, it should first be noted that s. 16 of the Interpretation Act, cited above, no
longer includes the word "expressly" as it did formerly. This section does not exclude the rule by which
the various provisions of a statute are each interpreted in light of the others, and it is possible that Her
Majesty be implicitly bound by legislation if that is the interpretation which the legislation must be given
when it is placed in its context. In my view, this is the interpretation that must be given to ss. 758 and
771(3) of the Criminal Code, when they are read not in isolation but in the context of Part XXIV on
summary convictions.

The first section of Part XXIV, s. 720, contains definitions including the following:

720. (1) In this Part

"informant" means a person who lays an information;

"prosecutor" means an informant or the Attorney General or their respective counsel or agents.

The legislator accordingly intended to refer to the Crown and bind it every time he used the expression
"prosecutor". The Crown may thus be ordered to pay costs at trial in the situation contemplated by s.
738(4):

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(4) Where the prosecutor does not appear at the time and place appointed for the resumption of
an adjourned trial, the summary conviction court may dismiss the information with or without
costs.

On the other hand, it would appear that only the informant or the defendant, and not the Crown, may
be ordered to pay costs under s. 744(1), since there is no mention of a presecutor:

744. (1) The summary conviction court may in its discretion award and order such costs as it
considers reasonable and not inconsistent with such of the fees established by section 772 as
may be taken or allowed in proceedings before that summary conviction court, to be paid

(a) to the informant by the defendant, where the summary conviction court convicts or makes an
order against the defendant, or
[Page 576]

(b) to the defendant by the informant, where the summary conviction court dismisses an informa-
tion.

Is there an anomaly here? Although in principle costs are compensatory and not punitive, it is possible
that the intent was to discourage, through fear of being ordered to pay costs, private frivolous
prosecutions inspired by vindictiveness. Such considerations are deemed not to apply in the case of
prosecutions authorized by the Attorney-General or undertaken by him, and in any event the fear of
costs would not discourage prosecutions in such a case.

At the appellate level such considerations give way to factors of a different kind, like those mentioned
by Boilard J. of the Superior Court in the judgment referred to above. Moreover, ordering the informant
to pay costs, which remains possible when the information is dismissed, would mean in practice that
the costs would be paid by the Attorney-General when, as in the case at bar, the informant is an
officer of the Quebec Police Force authorized by the Attorney-General to act as an informant.

The case at bar is concerned with the costs of appeal, but the foregoing indicates that the legislator
specifically contemplated the possibility that the Crown be ordered to pay the costs at trial.

Section 748 gives a right of appeal, in the circumstances which it states, to the defendant, the
informant, the Attorney-General of the province or his agent and the Attorney-General of Canada or
his agent. To some extent, therefore, it defines the word "appellant", which thus includes the Attorney-
General.

Section 752.1 prescribes the procedure when the appellant is the informant:

752.1 (1) The prosecutor in proceedings before a summary conviction court by whom an appeal
is taken under section 748 shall, forthwith after filing the notice of appeal and proof of service
thereof in accordance with section 750, appear before a justice, and the justice shall, after giving
the prosecutor and the respondent a reasonable opportunity to be heard, order that the
prosecutor
[Page 577]

(a) give an undertaking as prescribed in this section, or

(b) enter into a recognizance in such amount with or without sureties and with or without deposit
of money or other valuable security as the justice directs.

(2) The condition of an undertaking or recognizance given or entered into under this section is
that the prosecutor will appear personally or by counsel at the sittings of the appeal court at
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which the appeal is to be heard.

Because the word "prosecutor" is used, these provisions, which deal inter alia with security for costs,
would be binding on the Attorney-General. This is why the legislator excludes him in s. 752.1(3):

(3) This section does not apply in respect of an appeal taken by the Attorney General or by
counsel acting on behalf of the Attorney General.

The same principle is observed in ss. 763, 764(3) and 766(5) in connection with an appeal by stated
case.

Furthermore, under the provisions of s. 766(1) and (2), where a summary conviction court refuses to
state a case the "appellant" may apply to the Superior Court for an order directing it to proceed, but be
ordered to pay costs if he fails. As we have seen, the word "appellant" includes the Attorney-General.

Section 755, relating to an appeal by trial de novo, provides that the provisions of ss. 729 to 744 apply
mutatis mutandis for this purpose, to the extent that these sections are not inconsistent with ss. 748 to
760. It follows that s. 738(4) must be applied to any appeal by trial de novo, and that the Crown may
be ordered to pay costs when its representative does not appear at the resumption of an adjourned
hearing.

Sections 758 and 759(1), relating to trials de novo heard by the Superior Court, read as follows:

758. Where an appeal is heard and determined or is abandoned or is dismissed for want of
prosecution, the
[Page 578]

appeal court may make any order with respect to costs that it considers just and reasonable.

759. (1) Where the appeal court orders the appellant or respondent to pay costs, the order shall
direct that the costs be paid to the clerk of the court, to be paid by him to the person entitled to
them, and shall fix the period within which the costs shall be paid.

By these sections, the legislator indicated his intent to dispense in part at the appellate level with the
provisions of s. 744 relating to trial level costs. First, the quantum of the costs is left entirely in the
discretion of the Superior Court and is no longer limited by s. 772, to which s. 744 refers. Second, the
order to pay costs is no longer tied to the success or failure of the action. Additionally, there is no
further mention of an "informant" and a defendant, but, in s. 759(1) there is mention of an "appellant"
or a respondent. Finally, it would appear that by s. 758 Parliament wished to confer on the Superior
Court the widest possible discretion regarding costs, a discretion limited only by what is just and
reasonable. In some cases, it would not be either just or reasonable that the Crown be not ordered to
pay the costs of the appeal.

In my opinion the legislator intended, at the appellate level, to place the Attorney-General and the
accused on an equal footing from the standpoint of costs, except, as Kaufman J. correctly points out,
in the case where he expressly provided to the contrary with regard to the necessity of providing
security. The dissenting judge observed that s. 759(3) provides for imprisonment in the event that
costs are not paid. In my opinion, this argument is not conclusive: as respondent noted in his brief, s.
759(3) cannot be applied to corporations either, yet these remain subject to s. 759(1).

Accordingly, I conclude that the provision of s. 758 is binding on Her Majesty.

There remains the question of the costs of the appeal to the Court of Appeal. It is covered by s. 771:

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771. (1) An appeal to the court of appeal, as defined in section 601 may, with leave of that court,
be taken on any ground that involves a question of law alone, against
[Page 579]

(a) a decision of a court in respect of an appeal under section 755, or

(b) a decision of a superior court in respect of a stated case under section 768, except where the
superior court to which the case was stated is the Court of Appeal.

(2) Sections 601 to 616 apply mutatis mutandis to an appeal under this section.

(3) Notwithstanding subsection (2), the court of appeal may make any order with respect to costs
that it considers proper in relation to an appeal under this section.

(4) The decision of the court of appeal may be enforced in the same manner as if it had been
made by the summary conviction court before which the proceedings were originally heard and
determined.

(5) The Attorney General of Canada has the same rights of appeal in proceedings instituted at
the instance of the Government of Canada and conducted by or on behalf of that Government as
the Attorney General of a province has under this Part.

In my opinion, subs. (3) of this section is also binding on Her Majesty. First, it is worded in terms at
least as broad as s. 758. Secondly, I think it would be extraordinary for the Court of Appeal to have
powers in the matter of costs less wide than the Superior Court, especially as no action can be
brought before it without leave.

The appeal should be dismissed and, in accordance with the order giving Her Majesty The Queen
leave to appeal to this Court, the Attorney-General of Quebec shall pay solicitor and client costs.

Appeal dismissed

Solicitor for the appellant: Guy Fortier, St-Jérôme, Québec.

Solicitor for the respondent: Richard Perras, St-Jérôme, Québec.

[1] [1979] C.A. 143.

[2] [1904] A.C. 817.

[3] (1913), 29 T.L.R. 709.

[4] [1906] A.C. 204.

[5] 1913 CanLII 401 (UK JCPC), [1913] A.C. 283.

[6] 1919 CanLII 418 (UK JCPC), [1919] A.C. 999.

[7] 1924 CanLII 461 (UK JCPC), [1924] A.C. 999.

[8] 1926 CanLII 280 (UK JCPC), [1926] A.C. 715.

[9] 1931 CanLII 465 (UK JCPC), [1932] A.C. 98.

[10] 1946 CanLII 349 (UK JCPC), [1947] A.C. 24.
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[11] 1953 CanLII 416 (UK JCPC), [1953] A.C. 594.

[12] 1954 CanLII 289 (UK JCPC), [1954] A.C. 541.

[13] (1882), 7 A.C. 829.

[14] (1883), 8 A.C. 767.

[15] (1883), 9 A.C. 117.

[16] (1884), 10 A.C. 141.
[17] [1892] A.C. 437.

[18] 1935 CanLII 308 (UK JCPC), [1935] A.C. 500.

[19] 1913 CanLII 401 (UK JCPC), [1913] A.C. 283, reversing (1911), 17 W.L.R. 508.

[20] 1944 CanLII 310 (NB CA), [1945] 2 D.L.R. 438.

[21] 1965 CanLII 710 (NB CA), [1966] 2 C.C.C. 161.

[22] (1977), 1 C.R. (3d) 382.

[23] [1971] 2 W.W.R. 637.

[24] 1942 CanLII 295 (MB CA), [1942] 2 D.L.R. 96.

[25] 1943 CanLII 29 (SCC), [1943] S.C.R. 370.

Federation of Law Societies of Canada

By for the law societies members of the

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 253

Quebec (Attorney General) v. Cronier

1981canlii3179
 254

1981 CanLII 3179 (QC CA)

ATTORNEY-GENERAL OF QUEBEC et al. v. CRONIER
Quebec Court of Appeal, Turgeon and L'Heureux-Dubé JJ.A. and
Melancon J. (ad hoc). July 31, 1981.
 255

1981 CanLII 3179 (QC CA)

 256

1981 CanLII 3179 (QC CA)

C. Provost, for appellants.
D. Talarica, for respondent.
The judgment of the Court was delivered by
L'HEUREUX-DUBE J.A. (translation):—We are seized with two
appeals (the second is case No. 500-10-000412-807, Judge Mayrand
v. Cronier and Attorney-General of Quebec) against a part of the
disposition of the judgment given on November 13, 1980, by a
Judge of the Superior Court, District of Montreal, who,
(a) granted the respondent's motion for habeas corpus with
certiorari in aid;
(b) quashed the decision rendered by a Judge of the summary
conviction Court, one of the appellants, His Honour Judge
Yves Mayrand, adjourning pro forma the respondent's trial
for eight-day periods until December 9, 1980;
(c) freed the respondent, and quashed the charge brought against
him, and
(d) ordered the respondents — the appellants in the two appeals
we are seized with — to pay the costs on the motion for
habeas corpus with certiorari in aid, fixed at $200.
The appeal by the Attorney-General of Quebec and by the
director of the Montreal Prevention Centre, in the present case,
only concerns the part of the disposition of the judgment a quo
ordering them to pay costs; these parties did not contest the
correctness of the order of habeas corpus with certiorari in aid
given by the trial Judge.
The judgment a quo
On May 12, 1980, following the execution of warrant for his
arrest, the respondent Cronier appeared before the respondent
His Honour Judge Yves Mayrand, who ordered Cronier's incarcer-
ation until his trial; the Superior Court Judge stated:
 257

... Because of the backlog in the courts, and of the unavailability of judges,
His Honour Judge Mayrand adjourned the Applicant's trial until December 9,
1980, despite the objections of Croner.
However, and I say this with much respect, in the hope of giving undoubtedly
some legitimity to this decision which, in my humble view, clearly contra-

1981 CanLII 3179 (QC CA)

venes the provisions of Section 738 of the Criminal Code, His Honour Judge
Mayrand decided that, as of November 12, 1980, the case would be adjourned
for eight-day periods, pro forma, until December 9. It seems to me that this
decision clearly contravenes, in an explicit fashion, the manditory provisions
of Section 738 which requires that the trial of an individual in summary
conviction matters be commenced within eight days, unless the accused
consents to an adjournment beyond the eight day period, whether he is in
custody or not.
After referring to Ferron v. A.-G. Que. (C.S.M. 500-01-001321-
802, on October 9, 1980, unreported) and Kypriotis v. His Honour
Judge Chaloux et al. (C.S.M. 500-01-005448-805 and 807, July 11,
1981, unreported), and expressing surprise that these decisions
were not followed, the Superior Court Judge concluded, all the
while deploring the administrative problems created by the appli-
cation of s. 738 [am. R.S.C. 1970, c. 2 (2nd Supp.), s. 15; 1974-75-
76, c. 93, s. 87] of the Criminal Code (d.c., p. 31):
The motion is granted with costs against the Respondents and I set the costs
at the sum of $200. This sum should be paid within thirty (30) days of this
judgment, by depositing this sum at the Clerk's Office of this Court to be
thereafter paid over to the Applicant or his duly authorized lawyer.
To avoid all ambiguity and after reflection, in this case, I do not render the
order set out in Section 717 of the Criminal Code.

The grounds of appeal

In his factum, the Attorney-General sets out the grounds of
appeal as follows (factum of the appellant — the Attorney-
General, pp. 3-4):
The Attorney General appeals from this decision on the ground that the
Justice of the Superior Court erred in law by deciding that he has jurisdiction
to impose costs in this matter of prerogative writs and more particularly, by
imposing costs on the Respondents after issuance of the writ of habeas corpus
with certiorari in aid.
In effect, the Attorney General respectfully submits that neither the law,
jurisprudence nor the theory of the inherent powers of a superior court
authorize a Justice of the Superior Court to impose costs on the losing parties
in matters of prerogative writs.
The appellant elaborated by putting forward, in substance, the
following arguments:
(a) In principle, criminal justice is gratuitious;
(b) Neither s. 438 [am. 1974-75-76, c. 93, s. 42] and s. 713 of the
Criminal Code nor the common law authorize the imposition
 258

of costs in a matter of habeas corpus with certiorari in aid

arising in criminal proceedings;
(c) If the theory of the inherent powers of the Superior Court
justifies the imposition of costs for bad conduct or dishonesty

1981 CanLII 3179 (QC CA)

in the exercise of a function, nothing in the present case is
likened to such conduct, and the sole reason that a party fails
or succeeds in a proceeding does not constitute a justification
for the exercise of this inherent power.
It should be noted from the beginning that the costs were
imposed on the appellants, not at the time of the appeal from a
judgment rendered by a summary convictions Court, but from a
motion for habeas corpus with certiorari in aid. The provisions of
Part XXIV of the Criminal Code do not apply in this case.
In particular, ss. 744, 758, 768 and 771(3) of the Criminal Code
which govern the impositions of costs in matters of summary
convictions, (as much at trial as on appeal to the Superior Court
and on appeal to our Court), do not apply in this case.
With respect to extraordinary remedies, Part XXIII of the
Criminal Code applies. No general provision on costs is found
therein but only the particular provisions of ss. 713, 706(2), 685(2)
and 438(2)(c).
Section 713, which is concerned with only certiorari, provides
that a Court having jurisdiction to grant such a motion, can, by
general order, prescribe that the hearing of this motion be subject
to an undertaking, with or without security, on the part of the
applicant, to pursue the motion for the writ with due diligence and
to pay the costs of the person in whose favour the initial order was
granted.
Sections 706(2) and 685(2) respectively concern costs incurred
during the execution of a writ of fieri facias and the payment of
costs at the time of the payment of the monetary penalty.
Section 438(2)(c) authorizes all superior Courts of appeal juris-
diction as well as all Courts of appeal to establish rules of practice:
(C) to regulate in criminal matters the pleading, practice and procedure in
the court including proceedings with respect to mandamus, certiorari,
habeas corpus, prohibition, bail and costs, and the proceedings on an
application to a summary conviction court to state a case for the opinion
of the court with respect to a conviction, order, determination or other
proceeding;
These particular provisions must be discussed in light of the
principles which, with respect to costs, flow from the entirety of
our criminal law, either under the Canadian Criminal Code or in
the common law.
 259

Canadian criminal law is governed in the first place by the

Criminal Code, R.S.C. 1970, c. C-34, and amendments. As the
appellant correctly points out in his factum, the important revision
of the Canadian criminal law in 1954 brought substantial modifica-
tions to the 1892 Code [1892 (Can.), c. 29], among other

1981 CanLII 3179 (QC CA)

provisions, those dealing with the imposition of costs.
Before 1954, the Canadian Criminal Code contained a general
provision permitting the imposition of costs in criminal
proceedings and also several particular provisions on this matter.
Certain provisions were incorporated in the 1954 Code [1953-54
(Can.), c. 51], others were removed.
The 1892 Code authorized at s. 832, the imposition of costs for
all convictions of a criminal offence and for treason, in addition to
and other forms of sentence. This section, retained during the
1906 and 1927 revisions [Criminal Code, R.S.C. 1906, c. 146, and
R.S.C. 1927, c. 36], was not reproduced in the 1954 revision.
On the other hand, ss. 867 and 868 of the 1892 Code which
provided for the imposition of costs in summary conviction
matters, were retained and became in 1970, ss. 744, 758 and 768 of
the Criminal Code. In addition, s. 833 of the, 1892 Code, today of
enlarged scope, became s. 656 of the Criminal Code and permits
the granting of costs in matters of defamatory libel.
Sections 826 and 834 of the 1892 Code which respectively
permitted the imposition of costs in trials for young delinquents
charged with criminal offences and, in the case of assaults, incar-
ceration for non-payment of costs of up to three months, were not
retained during the 1954 revision.
With respect to the extraordinary remedies, s. 892 of the 1892
Code became s. 713 of the Criminal Code.
If one could argue that before the 1954 revision, criminal justice
was not free, it appears that since that date, apart from the cases
of infractions punishable by summary conviction and of defam-
atory libel, the Criminal Code adopted the principle that criminal
proceedings are gratuitous, except in those cases specifically
mentioned.
This is the view of legal writers on the subject:
In principle, proceeding before the courts are free in this sense that a party
cannot, as in civil law, see himself subjected to the burden of paying the court
costs incurred ... Obviously, the legislator can derogate from this rule.
(Beliveau, Bellemare and Lussier, Traite de Procedure Penale,
vol. 1, Editions Yvon Blais (1981), p. 33)
In general, unless specifically authorized by statute, costs are not to be
imposed. Thus, subject to the exception above, on the trial of indictable
 260

offences, there is no authority to impose payment of costs. Costs are however

available in summary convictions matters, in accordance with the tariff set out
in the Criminal Code, and on appeals from summary conviction offences.
(Clayton Ruby, Sentencing, Toronto, Butterworth's (1976), p.
246)

1981 CanLII 3179 (QC CA)

In this context, taking into consideration that no general
provision in Part XXIII of the Criminal Code exists providing for
the imposition of costs, should not any provision permitting the
imposition of costs with respect to extraordinary remedies be
strictly interpreted?
In the framework of Part XXIII, ss. 706(2) and 685(2) clearly
have no application in the present case. There remains ss. 713 and
438(2)(c) to consider.
Section 713 only concerns certiorari and presumes the existence
of a general order ordering the defendant/applicant to pay the
Court costs and expenses of the person in whose favour the order
was granted. No such order exists in the present case, which
moreover concerns habeas corpus with certiorari in aid, and the
Court costs were not imposed on the defendant/applicant but on
the respondents. This section can have no application in the
present case, as habeas corpus with certiorari in aid cannot be
equated with certiorari.
In Re Ange, [1970] 5 C. C. C. 371, [1970] 3 O.R. 153 (Ont. C.A.),
Mr. Justice Laskin, then of the Ontario Court of Appeal,
commented on this latter point as follows (at p. 374): "Although
certiorari was brought in aid of habeas corpus in the present case,
this does not make s. 685 [now s. 713] an apt source of authority."
Turning to s. 438(2)(c), Rule 23 of the Rules of Practice of the
Superior Court (Criminal Jurisdiction), adopted under the
authority of this section, reads as follows:
23. The writ of habeas corpus in criminal matters is governed mutatis
mutandis by articles 851 to 856 of the Code of Civil Procedure.
Sections 851 to 855 of the Code of Civil Procedure concern
procedure whereas s. 856 reads as follows:
856. The judge or the court adjudicates as to costs in accordance with the
circumstances.
Can this latter section apply, by means of Rule of Practice 23
adopted under s. 438 of the Criminal Code, to habeas corpus in
criminal proceedings?
Mr. Justice Laskin (Re Ange, supra, p. 374) after discussing the
statutory power to grant costs in criminal proceedings, a power
which exists at common law, stated that in England there are
express provisions concerning costs in various types of criminal
 261

proceedings including habeas corpus proceedings in criminal

matters. He refused to apply a similar rule in Canadian criminal
law, reasoning in these terms:
Having regard to the express provisions for costs that exist in our law in
respect of both civil and other proceedings, I do not think that it is open to

1981 CanLII 3179 (QC CA)

the Court to create a special rule for costs in habeas corpus proceedings in
criminal matters when there is no general substantitive provision for costs in
criminal matters.
Lagarde, Droit Penal Canadien, vol. 2, 2nd ed., adopts the
same position (at p. 1999):
In its new rules, contrary to the former rules, no mention is made of security,
or an undertaking, or payment of costs concerning recourses by certiorari.
This is possible by applying Section 856 of the Code of Civil Procedure to the
writ of habeas corpus in criminal matters, but this approach does not find
support in any substantive provision of the Criminal Code. If the Criminal
Code contains no substantive provisions concerning the right to order costs,
the Superior Court, in criminal matters, cannot make rules governing the
ordering of costs.
Lagarde relies on Re Ange, supra, among others, as well as on
three other decisions, all originating in British Columbia (at p.
2000):
1. In Re Christianson (1951-52), 13 C.R. 22, 100 C.C.C. 289 (B.C.S.C.):
The Supreme Court of British Columbia does not have the power to
grant costs to or against the Crown in habeas corpus proceedings in
criminal matters.
2. In R. v. Cunningham (1953), 105 C.C.C. 377, 16 C.R. 219 (B.C.S.C.):
The Supreme Court of British Columbia has jurisdiction to both
grant costs and make rules with respect to costs on criminal matters
involving certiorari. The decision in "In Re Christianson", supra,
concerns habeas corpus proceedings and is therefore different from
the present case.
3. In Re Bence (1954), 108 C.C.C. 373, [1954] 2 D. L. R. 460 (B.C.S.C.):
When a motion for a writ for prohibition is dismissed, the right of
the Crown to costs requires a provision to this effect in the federal
legislation. Section 576, c. 36 R.S.C. 1927 [now Section 438, c. C-34
R.S.C. 1970], which authorizes the superior court of criminal juris-
diction to make rules to, among other things, regulate costs does
not authorize it to make rules which confer on it a substantive
power to accord costs but is limited to regulating costs authorized
by another substantive law. It follows that this Court has no power
to grant costs with respect to a motion for a writ of prohibition.
And he concludes (at p. 2000):
Following the train of thought of the above judgments, the Criminal Code
must expressly permit the Court to impose costs in order that the superior
court of criminal jurisdiction can make rules regulating the taxation of costs
and the payment of costs. I am of the view that in criminal matters, with
respect to a motion for habeas corpus, the Court cannot impose costs on the
losing party. As a result, I believe that Section 856 of the Code of Civil
Procedure is not applicable in criminal matters.
 262

The respondent Croner, in the bibliography submitted to us,

emphasizes three English decisions: R. v. Kingston-Upon-Hull
Rent Tribunal, Ex p. Black, [1949] 1 All E.R. 260; R. v.
Willesden Justices, Ex p. Utley, [1948] 1 K.B. 397, [1947] 2 All
E.R. 838, and R. v. Justices of Bodmin, Ex p. McEwen, [1947] 1

1981 CanLII 3179 (QC CA)

K.B. 321, [1947] 1 All E.R. 109. He also points to five decisions
from Saskatchewan: R. v. Standall (1919), 31 C.C.C. 144, [1919] 2
W.W.R. 632, 12 S.L.R. 282; R. v. Webb (1943), 80 C.C.C. 151,
[1943] 2 W.W.R. 239; R. v. Hawker (1939), 73 C.C.C. 82, [1940] 1
D.L.R. 158, [1939] 3 W.W.R. 622; Ogloff v. Danis et al. (1920), 33
C.C.C. 200, 53 D.L.R. 513, [1920] 3 W.W.R. 207, and R. v.
Taylor, Ex p. Ruud, [1965] 4 C.C.C. 96, 50 D.L.R. (2d) 444, 46
C. R. 206. All these decisions concerned certiorari proceedings.
With respect to the Saskatchewan cases, they rely in general on
the Rules of Practice adopted under the provisions of the
Criminal Code providing for the ordering of costs. As we are at
present concerned with habeas corpus with certiorari in aid, those
cases must be distinguished.
In my view, in the absence of legislative authority permitting
the ordering of costs with respect to habeas corpus with certiorari
in aid in criminal proceedings, given the principle that criminal
proceedings under the Canadian Criminal Code since the 1954
revision are free, s. 438(2) of the Criminal Code and the Rules of
Practice adopted under this provision, cannot create a right which
otherwise is non-existent.
Mr. Justice Lieff expressed the same position in Re Regina and
Sheldon (1972), 8 C.C.C. (2d) 355 at p. 359:
... I would still hold that one does not, and cannot, regulate something that
does not exist, and the substantive jurisdiction to award cost in criminal
proceeding cannot be found in s. 438(2)(c) of the Criminal Code.
This case was cited with approval by Mr. Justice Parker in Re
Regina and Nelson (1979), 51 C.C.C. (2d) 180 at p. 184, 14 C. R.
(3d) 66:
In Re Regina and Sheldon (1972), 8 C.C.C. (2d) 355, Lieff, J., found that this
section [referring to s. 438 of the Criminal Code] only deals with the right to
make rules to regulate costs and does not create a substantive jurisdiction to
award costs in criminal proceedings.
In the decision pronounced the same day as the present case
under appeal (Dalpe v. His Honour Judge Trahan and the A.-G.
Que., on appeal under the number 500-10-000402-808 C.A.M.) the
same Judge granted costs against the Quebec Attorney-General
by accepting the motion for certiorari for the same reasons as in
the present case a pro forma adjournment for more than eight
 263

days without the consent of the accused. The Judge stated, on the
issue of granting costs:
First, with respect to the Respondent magistrate, as well as the other magis-
trates of this Court, I make the habitual order set out at Section 717.
However, relying on a recent decision of the Court of Appeal in Depres,

1981 CanLII 3179 (QC CA)

rendered on October 28, 1980, I am of the opinion that I can, in matters
concerning prerogative writs, order costs against one of the parties.
In Després (C.A.M. 500-10-000216-794), the issue concerned the
ordering of Court costs and the respondent's lawyer's costs, in a
motion for certiorari which was rejected as frivolous in light of the
lawyer's conduct which the Judge found unacceptable in the
circumstances. In delivering his judgment, the Judge relied on
two decisions, one of the Supreme Court of Canada, Pacific
Mobile Corp. v. Hunter Douglas Canada Ltd. et al., [1979] 1
S.C.R. 842, and the other from British Columbia, Brisseau v.
Martin & Robertson Ltd. et al., [1978] 6 W.W.R. 383, 30 N.S.R.
(2d) 671, 15 A.R. 385; since overturned by the British Columbia
Court of Appeal, [1979] 6 W. W. R. 416, 36 N.S.R. 689, 20 A.R.
317, sub nom. Geller v. Brisseau et al.), which concerned
precisely the issue of granting the respondent's lawyer's costs.
Neither decision refers to the power to grant costs in criminal
matters concerning extraordinary remedies, no more than does
Després, supra. Rather, these cases concerned the exercise of the
inherent power of supervision and control enjoyed by the superior
Courts, which I will return to later.
In Després, the lawyer did not appeal from the ordering of
costs; only the applicant for certiorari appealed the decision. On
the latter occasion, the issue of the granting of lawyer's costs was
discussed, but not on the basis of the existence of costs in criminal
matters. Our Court dismissed the appeal in the following terms (p.
4 of the reasons of Mr. Justice Nolan):
For the foregoing reasons, I am of the opinion that the judgment a quo which
refused the appellant's application for a writ of certiorari was well-founded. I
would accordingly dismiss the appellant's appeal, and, moreover, would not
interfere with the discretion which the Judge of the Superior Court exercised
in adjudicating as to costs.
In my view, this case cannot be relied on as authority to support
the proposition that the imposition of costs is permitted with
respect to motions for habeas corpus with certiorari in aid by
virtue of some provision of the Canadian Criminal Code.
Can one, however, look to the common law, the other source of
our Canadian criminal law, for the source of the power of Courts
to grant costs in matters concerning extraordinary remedies in
criminal proceedings?
 264

Section 7(2) of the Criminal Code refers to the English criminal

law in effect in a Province on April 1, 1955:
7(2) The criminal law of England that was in force in a province immedi-
ately before the 1st day of April 1955 continues in force in the province except
as altered, varied, modified or affected by this Act or any other Act of the

1981 CanLII 3179 (QC CA)

Parliament of Canada.
The provision incorporating the criminal law of England does not
apply in Canada when the Criminal Code or another Canadian law
changes, modifies or abolishes it. If it is admitted that the 1954
revision modified the former rule with respect to the imposition of
costs in criminal matters, then logically one must conclude that
the statutory rule of the common law which authorizes the
imposition of costs is no longer applicable in Canadian criminal
law.
According to Mr. Justice Laskin (in Re Ange, an extract of
which I quoted above), even if there exists statutory provisions in
England providing for the granting of costs in habeas corpus
matters, this rule cannot prevail in Canadian criminal law where
no such rule exists.
Recently, the question of the imposition of costs in penal
matters was raised anew. Mr. Justice Beetz discussed this issue at
some length in R. v. Ouellette (1980), 52 C.C.C. (2d) 336, 111
D.L.R. (3d) 216, [1980] 1 S. C. R. 568. In that case, the majority in
our Court of Appeal (1979), 50 C.C.C. (2d) 346, [1979] Que. C.A.
143, had confirmed the trial Court judgment granting the appeal
from the sentence imposed by a summary convictions Court and
ordering the respondent's Attorney-General to pay the costs. The
dissent of Mr. Justice Paré concerned the granting of costs against
the Crown. According to him, "the Crown cannot be made to pay
costs unless an express provision exists to this effect". Mr. Justice
Beetz, delivering the unanimous judgment of the Supreme Court,
confirmed the judgment of our Court and went on to discuss the
common law rule concerning the payment of costs by the Crown.
Ouellette is distinguishable from the present case in that it
concerned an appeal from a decision under Part XXIV of the
Criminal Code with respect to summary convictions. This is not
the present case in which we are concerned with extraordinary
remedies. Part XXIV of the Criminal Code contains specific
provisions on costs, whereas the Criminal Code does not contain
any such provisions with respect to extraordinary remedies. This
suffices to distinguish this case.
Moreover, the comments of Mr. Justice Beetz that "the common
law rule on which the dissenting Judge relied is far from being as
 265

firm and precise as he considered it to be" are in that case obiter,

Mr. Justice Beetz himself stating (at pp. 339 and 341 C. C. C., pp.
571 and 574-5 S. C. R. ):
In my view, the Court of Appeal correctly interpreted the relevant sections
of the Criminal Code, the provisions of which suffice to dispose of the case.

1981 CanLII 3179 (QC CA)

In any case, the question can be resolved solely on the basis of the relevant
provisions of the Criminal Code.
In addition, the question on which Mr. Justice Beetz commented
only concerned the granting of costs against the Crown and not
the existence of costs in penal matters. In that case, the Criminal
Code provided for the imposition of costs and the only question at
issue was whether or not this provision applied to the Crown. The
present question before our Court is totally different. Finally,
none of the cases cited by Mr. Justice Beetz concerned a criminal
matter, except two cases concerning proceedings with respect to
infractions pursued under the summary conviction regime.
For these reasons, R. v. Ouellette, supra, cannot be successfully
relied upon in support of the respondent's position. I conclude
from the preceeding discussion that the common law does not
authorize the imposition of costs in habeas corpus matters arising
in criminal proceedings in Canadian criminal law.
Viewed from a totally different angle, the question is whether
one can invoke the theory of inherent powers of supervision and
control in the Superior Court to censure, in a summary fashion,
through the imposition of costs, the negligence or misconduct of
the parties in this case.
No one questioned the existence of this inherent power in the
Superior Court which is necessary to the exercise of its jurisdic-
tion, and which power was as recently referred to as 1980, by the
Supreme Court of Canada: Vaillancourt v. The Queen (1981), 58
C.C.C. (2d) 31, 120 D. L. R. (3d) 740, 19 C. R. (3d) 178. This power
implies the right of the Court to control proceedings with which it
is seized, to penalize abuses, and to maintain its authority.
In the decision of the English House of Lords, Myers v. Elman,
[1940] A.C. 282, which is authority on that matter, a lawyer was
personally ordered to pay the costs at trial. Quashed on appeal,
the trial judgment was reinstated by the House of Lords. Lord
Wright wrote on this matter at p. 319:
The underlying principle is that the Court has a right and a duty to supervise
the conduct of its solicitors, and visit with penalties any conduct of a solicitor
which is of such a nature as to tend to defeat justice in the very cause in
which he is engaged professionally, as was said by Abinger C.B. in Stephens
v. Hill, (1842, 10 M. & W. 28. The matter complained of need not be criminal.
 266

It need not involve peculation or dishonesty. A mere mistake or error of

judgment is not generally sufficient, but a gross neglect or inaccuracy in a
matter which it is a solicitor's duty to ascertain with accuracy may suffice.
Thus, a solicitor may be held bound in certain events to satisfy himself that he
has a retainer to act, or as to the accuracy of an affidavit which his client
swears. It is impossible to enumerate the various contingencies which may

1981 CanLII 3179 (QC CA)

call into operation the exercise of this jurisdiction. It need not involve
personal obliquity. The term professional misconduct has often been used to
describe the ground on which the Court acts. It would perhaps be more
accurate to describe it as conduct which involves a failure on the part of a
solicitor to fulfil his duty to the Court and to realize his duty to aid in
promoting in his own sphere the cause of justice. This summary procedure
may often be invoked to save the expense of an action. Thus it may in proper
cases take the place of an action for negligence, or an action for breach of
warranty of authority brought by the person named as defendant in the writ.
The jurisdiction is not merely punitive but compensatory. The order is for
payment of costs thrown away or lost because of the conduct complained of. It
is frequently, as in this case, exercised in order to compensate the opposite
party in the action.
The Supreme Court of Canada itself ordered the appellant's
lawyer to pay costs (Pacific Mobile Corp. v. Hunter Douglas
Canada Ltd. et al., supra), relying on the case Myers v. Elman,
supra. Mr. Justice Pigeon, delivering the unanimous decision of
the Court, after setting out the grounds in support of the decision
ordering the appellant's lawyer to pay costs, stated (at p. 845):
In such circumstances the Court should make use of its power to order costs
payable by solicitors personally, in accordance with principles which were
fully stated by the House of Lords in Myers v. Elman, and need not be
restated here.
A superior Court has the power to maintain its authority and to
control its procedure so as to put justice in order and efficiently.
That this implies sometimes ordering one of the parties and even
lawyers to pay the costs of a proceeding in cases of the abuse or of
the frivolity of proceedings, of misconduct or dishonesty or of
taken for some other ulterior motive, is a recognized principle.
But the conditions for the exercise of this inherent power must
exist.
According to the authorities, the criteria which applies in this
matter can be equated to those which apply in contempt of Court
situations, namely, this characteristic of gravity equivalent to
"misconduct" and "dishonesty". I. H. Jacob, "The inherent juris-
diction of the Court (1970), 23 Current Legal Problems 23, pp. 46-
7, wrote the following:
This power of control and protection may be exercised in respect of solic-
itors who are officers of the court, and also barristers, who although not
strictly officers of the court have a special privilege to practise the law in the
courts; and it extends also to many other classes of persons, such as receivers,
 267

liquidators, sequestrators, sheriffs, bailiffs, jurors, witnesses, and even

judges of inferior courts. The basis for the exercise of these powers is of
course contempt of court, for any misconduct by such a person and any undue
interference with him in the performance of his duties is treated as a
contempt of court itself; but the court may exercise its summary powers
without dealing with an offender for contempt of court as such. This may best

1981 CanLII 3179 (QC CA)

be seen in relation to the powers to control and protect solicitors.
In Halsbury's Laws of England, 4th ed. vol. 9, pp. 30-1, one
reads:
Judges of inferior courts are punishable by committal for acting unjustly,
oppressively, or irregularly in the execution of their duty, or for disobeying
writs issued by the High Court requiring them to proceed or not to proceed in
matters before them, but a great part of this jurisdiction is virtually super-
seded by statutes giving the Lord Chancellor power to remove a judge of an
inferior court for inability or misbehaviour.
And in C. J. Miller, Contempt of Court (pp. 225-6):
There is also a wealth of earlier authority indicating that judges of inferior
courts may be dealt with for contempt for acting unjustly, oppressively, or
irregularly, in the execution of their duty, or for disobeying writs issued by
the High Court requiring them to proceed or not to proceed in matters before
them.
In Abraham v. Jutsun, [1963] 2 All E.R. 402, Lord Denning
said [at p. 404]:
An advocate is not to usurp the province of the Judge. He is not to determine
what shall be the effect of legal argument. He is not guilty of misconduct
simply because he takes a point which the tribunal holds to be bad. He only
becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes
a bad point and thereby deceives the court. Nothing of that kind appears
here.
Have the respondents in the present appeal, the Attorney-
General and the Director of the Montreal Detention Centre,
abused the judicial processes? Are they guilty of misconduct, or
did they otherwise place in danger the authority of the Court? The
case, in my view, shows none of this, but only reflects with
respect to the Attorney-General, the situation of a losing party.
The Attorney-General laid the charge and absolutely nothing in
the case indicates that he was not justified in doing so. Moreover,
this action was not the object of any discussion or remark by the
trial Judge. Nothing, on the other hand, leads one to believe that
the Attorney-General failed in any fashion in his obligation as
prosecutor of the charge. The sole admission that the motion for a
writ of habeas corpus with certiorari in aid was well-founded, does
not constitute in itself contempt.
Similarly, the Director of the Montreal Detention Centre was
only interpleaded because the respondent was held there at the
 268

time the proceedings were instituted. It does not appear that he in

any manner injured the authority of the Court, and how could he
have done so?
The motion for habeas corpus with certiorari in aid, it should be
remembered, only arises from the pro forma adjournment of the

1981 CanLII 3179 (QC CA)

trial of the respondent for eight-day periods ordered by the Judge
of the Court of the Sessions of the Peace, over which the appel-
lants have no control.
In my view, nothing in the present case authorized the Superior
Court Judge to order the appellants to costs by virtue of his
inherent powers of control and supervision.
On the one hand, the Judge cannot authorize himself to do
indirectly what the Canadian criminal law does not expressly
authorize him to do, in the present case, the ordering to pay costs
with respect to extraordinary remedies in criminal matters. In the
absence of reprehensible conduct by the appellants, or a serious
affront to the authority of the Court or of a serious interference
with the administration of justice, which is not the present case,
the imposition of costs on appellants in the context of the present
debate is in no way justified.
On the other hand, this power of control and supervision must
not be exercised in an arbitrary and unlimited manner, but rather
"with the greatest reluctance and the greatest anxiety on the part
of Judges". Re Clements (1877), 46 L.J. Ch. 375 at p. 383. It does
not appear to me to be necessary to pursue this aspect in the
present case since this case does not demonstrate any fault on the
part of the appellants which would give rise to the exercise of the
inherent power of control and supervision of the Superior Court.
Before concluding, I wish to underline the remarkable quality of
the factum of the Attorney-General of Quebec, the only one
submitted to us (if one accepts the bibliography filed by the
respondent), in the present appeal.
For the reasons I have set out, I am of the opinion that the
appellants' appeal is well-founded with respect to this part of the
disposition of the judgment a quo which condemned them to costs
of $200. As a result, I would quash this part of the disposition.

Appeal allowed.
 269

Carr v Ottawa Police Services Board

2017 ONSC 4331 (CanLII)

1/6/2019 CanLII - 2017 ONSC 4331 (CanLII) 270

Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)

Date: 2017-07-14
File 10-49203
number:
Citation: Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII), <http://canlii.ca/t/h4tf7>, retrieved on
2019-01-06

CITATION: Carr v. Ottawa Police Services Board, 2017 ONSC 4331

COURT FILE NO.: 10-49203
DATE: 2017/07/14

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N: )
)
Roxanne Carr ) Lawrence Greenspon and Marisa Victor, couns
)) el for the Plaintiff
Plaintiff ) )
))
– and – ))
)
Ottawa Police Service Constable Cindy Cybul )
ski, Ottawa Police Service Constable Michael )
Adlard, Ottawa Police Service Constable Sha )
wn Virgin, Ottawa Police Service Constable D )
arren Shore, Ottawa Police Service Detective )
Constable David West, Ottawa Police Service )
Constable M. Morris, Ottawa Police Service C ) Geoffrey J. Cantello, counsel for the Defendant
onstable Richard Marcil, Ottawa Police Sergea ) s
nt Steven Desjourdy and the Ottawa Police Ser )
vices Board )

Defendants

) HEARD AT OTTAWA: May 11–13, May 16–

) 19, 25 and 27, 2016

REASONS FOR JUDGMENT

CORTHORN J.
https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4331/2017onsc4331.html?resultIndex=1 1/30
1/6/2019 CanLII - 2017 ONSC 4331 (CanLII) 271
Overview
[1] For Roxanne Carr, the hot summer afternoon of August 23, 2008 began sitting on the front steps of her
home, enjoying the company of a friend. To Roxanne’s surprise, the police arrived in the middle of the
afternoon. A police officer told her that she was required to leave the premises.

[2] The course of the afternoon turned in a moment, when Roxanne stood up from the front steps to enter
her home and retrieve her personal belongings. Roxanne was not permitted to leave the premises peaceably, as
she intended. Instead, the situation escalated. Roxanne was taken to the ground, handcuffed, and arrested. A
total of seven police officers were involved in detaining Roxanne, arresting her, transporting her to the police
station, searching her, restraining her upper and lower limbs, placing her in a holding cell, searching her a
second time, and leaving her naked in the cell for several hours before she was permitted to leave the Ottawa
police station.

[3] An eighth officer investigated the events of the day. He decided that Roxanne would be charged with
assault, assaulting a police officer, resisting arrest, and mischief. The charges were subsequently withdrawn
because of the lack of a reasonable prospect of conviction.

[4] The situations that police officers are called upon to respond to are wide-ranging. Some situations
involve no illegal activity whatsoever; others involve the most heinous of human behaviour. Through training
and experience, police officers develop the judgment they require to assess situations and determine how to
handle them.

[5] At the heart of this case is the manner in which each of the officers exercised their judgment in dealing
with Roxanne on August 23, 2008.

[6] Roxanne claims damages for injuries suffered, economic losses, and expenses incurred and to be
incurred in the future, damages on the basis of breaches of her rights pursuant to the Charter of Rights and
Freedoms, and punitive damages.

The Issues
[7] The issues to be determined are:

1. Was the arrest of Roxanne Carr lawful under either the provincial Trespass to Property Act or the
Criminal Code of Canada?

2. Did any of the officers use excessive force when dealing with Roxanne Carr?

3. Were any of the officers negligent in carrying out their investigation of the events of the afternoon of
August 23, 2008?

4. Were Roxanne Carr’s rights pursuant to sections 7, 8, or 9 the Charter of Rights and Freedoms
breached as a result of the conduct of one or more of the defendants?

5. Was the Ottawa Police Services Board negligent because it failed to provide its officers with
reasonable training, supervision, and oversight?

6. To what damages, if any, is Roxanne Carr entitled under the following headings:

a) General damages;

b) Loss of income, loss of competitive advantage, or loss of earning capacity;

c) Out-of-pocket expenses and future care expenses;

d) Breach of Charter rights; and

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e) Punitive damages.

Background
[8] In the spring of 2008, Roxanne began to share a townhouse rented by her former boyfriend, Devon
Morgan. They shared the home as roommates, each paying $500 per month in rent.

[9] Roxanne planned to move out of the home a few days prior to the end of August 2008. She told Morgan
of her intention to do so.

[10] On the afternoon of August 23, 2008, Roxanne’s friend, Shawn Lavigne, visited with Roxanne at the
townhome. Lavigne arrived in the early afternoon. The two spent a couple of hours conversing, seated on the
front steps of the home. Roxanne believed Morgan was in Montreal that day.

[11] The afternoon was disrupted when two police officers, Constables Adlard and Cybulski, arrived at the
home. Adlard told Roxanne to go inside and ask Morgan to come outside. Roxanne complied with the request,
despite having responded that Morgan was not home. To Roxanne’s surprise, Morgan was inside the home.
Morgan went outside and spoke with the officers. Roxanne returned to sit on the steps with Lavigne.

[12] Following their conversation with Morgan, Adlard and Cybulski had the impression that they were
dealing with a situation of “removal of an unwanted person”. They did not believe that the situation was one
involving criminal activity.

[13] After speaking with Morgan, Adlard and Cybulski returned to the front of the home. Morgan followed
them. Adlard told Roxanne that she was required to leave the premises. Roxanne was taken aback by the
request.

[14] Roxanne was unable to convince Adlard that she paid rent and was entitled to remain at the home.
During her discussion with Adlard, Roxanne stood up from her seated position on the steps. Adlard believed
that Roxanne was about to assault Morgan. There was no physical contact between Roxanne and Morgan.
Adlard brought Roxanne to the ground and arrested her for assault. With Cybulski’s assistance, Adlard
handcuffed Roxanne. The arrest occurred within eight minutes of the officers arriving at the home.

[15] The two officers took Roxanne to one of their cruisers and placed her in the back seat. Two other
officers, Constables Virgin and Shaw, arrived at the scene.

[16] When in the first cruiser, Roxanne kicked the rear passenger and driver’s side windows out of the
cruiser. The officers then placed Roxanne’s ankles in flex cuffs so as to restrain her leg movement. The officers
carried Roxanne to the back seat of another cruiser parked nearby.

[17] When Roxanne was in the second cruiser, paramedics attended at the scene. Roxanne’s mother also
attended at the scene, spoke with at least one of the officers, and spent time with Roxanne.

[18] Adlard drove Roxanne to the sally port area of the Ottawa police station. Constable Cybulski and
Special Constable Morris, the latter a cell block officer, removed Roxanne from the cruiser. They dragged
Roxanne into the cell block area and placed her on the ground face down so that a search could be conducted.

[19] Cybulski and Morris carried out the search. Throughout the search, Roxanne was handcuffed, with her
ankles in the flex cuffs, and lying on the ground. Cell block officers Special Constable Marcil and Sergeant
Desjourdy were present during the search but did not assist. After the search was completed, the flex cuffs were
removed, Marcil applied a temporary restraining device (“TRD”) to keep Roxanne’s arms tied together behind
her back, and the handcuffs were removed. Marcil took Roxanne to a holding cell. He removed the TRD once
Roxanne was inside the cell.

[20] Sometime later, one of the cell block officers called an alert with respect to an incident in Roxanne’s
cell. The alert was that Roxanne was trying to strangle herself with her own clothing (her top). In response to
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the alert, at least four officers went to the cell. Some of the officers removed Roxanne’s clothing. Morris, who
was one of the officers to attend at the cell, gave Roxanne a suicide suit to wear.

[21] Shortly after receiving the suicide suit, Roxanne threw it out of the cell. Roxanne remained naked in the
cell for between 2.25 and 3 hours before she was provided with a second, larger-sized suicide suit. During that
time, an officer passed by Roxanne’s cell every half hour as part of a regular cell check. In addition, Roxanne’s
cell could be seen on the monitors of the closed-circuit cameras.

[22] Shortly after midnight, Detective West attended in the hallway outside Roxanne’s cell. He outlined the
charges being laid, the evidence he relied upon, and why the charges were being laid. He did not attempt to
obtain from Roxanne her version of the events of the day. Roxanne was later allowed to leave her cell, retrieve
her clothing and personal items, and leave the building. She took a taxi to her mother’s home.

[23] Roxanne seeks compensation for physical injuries suffered at the time of arrest and in the course of
being searched and taken to a holding cell. She also seeks compensation for psychological injury suffered in the
form of post-traumatic stress disorder, anxiety, and insomnia. Roxanne’s claim includes damages for economic
losses on the basis that because of the psychological injuries suffered she has been and shall remain unable to
return to gainful employment.

[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s
Charter rights. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against
the defendants on the basis that their conduct was callous and high-handed.

Issue No. 1 - Did the police have authority, under either of the provincial Trespass to Property Act or the
Criminal Code of Canada, to arrest Roxanne without a warrant?
[25] It is undisputed that Roxanne’s arrest was carried out without a warrant. Under both the Trespass to
Property Act, R.S.O. 1990, c. T.21 (“TPA”) and the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the
“Code”), police have the authority, in limited circumstances, to make an arrest without a warrant.

a) Arrest Without a Warrant Under the TPA

[26] The offence of trespass to property involves entering premises without the permission of the occupier
and/or remaining on premises when asked by the occupier to leave. At issue is whether the individual has the
right or legal authority to enter and/or remain on the premises: see section 2.

[27] To make an arrest without a warrant pursuant to the TPA, a police officer must have “reasonable and
probable grounds” to believe that the individual is on the premises in contravention of the statute: see section
9(1).

[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or
refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of
section 2 of the TPA? For the following reasons, I find they did not:

• As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the
home;

• As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home;

• There is no evidence that Morgan gave Roxanne notice to leave the home; and

• There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to
leave the home.

[29] In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home,
Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.

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▪ Roxanne was, at a Minimum, a Licensee and Entitled to Remain
[30] As of August 2008, Adlard had been a constable with the Ottawa Police Service (“OPS”) for eight
years. Cybulski began working with the OPS as a civilian in 2000. She became a constable in 2006.

[31] After being dispatched to a “dispute/disturbance” call, Adlard and Cybulski arrived at the home in
separate cruisers. From their brief conversation with Morgan, the officers understood that Morgan was
uncomfortable with Roxanne remaining at the home. He wanted Roxanne removed from the home that
afternoon.

[32] Had the situation been hers to manage, Cybulski would have attempted to have Roxanne leave the
premises. If Roxanne had refused to leave, Cybulski would have “spent a lot more time just talking or finding a
solution.” Cybulski was not certain that a trespass notice would have been issued to Roxanne if she had refused
to leave. Cybulski had no intention of arresting Roxanne.

[33] However, the situation was not Cybulski’s to manage. Adlard was the first officer to respond to the call;
the situation was his to manage. The approach adopted by Adlard is in stark contrast to Cybulski’s approach.
Adlard immediately adopted a forceful, if not confrontational, approach with Roxanne.

[34] Adlard’s evidence was that in responding to calls of this type, police are not in the “eviction business”.
Adlard testified that to be fair to Roxanne in the circumstances, he needed to speak to her. Yet, Adlard asked
Roxanne only one question before he arrested her: Was her name on the lease for the home?

[35] From the conversation with Morgan, Adlard knew that Roxanne paid rent. He also knew that Roxanne
and Morgan shared common facilities in and the entranceway to the home. Adlard acknowledged that prior to
telling Roxanne she was required to leave the premises he knew nothing more about the arrangement between
Morgan and Roxanne. At no time did Adlard determine any of the following from either Morgan or Roxanne:

• When Roxanne had moved into the home;

• How much she paid in monthly rent;

• The months for which she had paid rent (including whether she had paid rent for the month of
August);

• If or when Morgan gave notice to Roxanne to leave; or

• The date on which Roxanne was scheduled to leave the home.

[36] Adlard focussed on the fact that Roxanne’s name was not on the lease. He concluded that (a) Morgan
gave Roxanne notice to leave, (b) there was nothing in the law with respect to tenancy to protect Roxanne, and
(c) Roxanne had to leave the home.

[37] Roxanne’s evidence was that in response to being told to leave the premises she asked Adlard to do two
things. The first was for him to speak to her mother, with whom Roxanne was in contact by cell phone. Adlard
refused to do so. The second was to look at a written agreement between Roxanne and Morgan regarding
sharing the townhome. Roxanne wanted to retrieve the document from inside the home. Roxanne testified that
Adlard refused to let her retrieve it. Adlard denied that such a request was made.

[38] Both Adlard and Cybulski understood that Morgan and Roxanne had, by a verbal agreement or
otherwise, been sharing the home. Whether or not a written agreement existed is irrelevant to the outcome of
this case. If such an agreement existed, then Roxanne was a sub-tenant in the home and entitled to remain.

[39] Even on the basis of a verbal agreement, Roxanne was, at a minimum, a licensee with respect to the
home (see Jamieson v. Saucier, [1986] O.J. No. 1915 (Dist. Ct.), at p. 2; Maxwell v. Brown (1982), 1982 CanLII
2161 (ON SC), 35 O.R. (2d) 770 (Co. Ct.), at paras. 7, 10). A licensee is not entitled to the protection afforded
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to a tenant under the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Nonetheless, a licensee is entitled to
adequate notice if they are asked to leave the premises (Jamieson, at p. 2).

[40] By his own evidence, Adlard lacked reasonable and probable grounds to conclude that by refusing to
leave the home, Roxanne was contravening section 2 of the TPA. I find that Adlard lacked authority pursuant to
section 9(1) of the TPA to arrest Roxanne without a warrant.

b) Arrest Without a Warrant Under the Code

[41] When Roxanne stood up, Adlard put his hand on her arm in an effort to stop her from moving. Adlard
acknowledged that as of that time, Roxanne was under arrest. She was arrested by Adlard for the offence of
assault, a hybrid offence under section 266 of the Code.

[42] Section 265(1) of the Code states that an individual commits an assault when:
(a) without the consent of another person, he applies force intentionally to that
other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another

person, if he has, or causes that other person to believe upon reasonable
grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts

or impedes another person or begs.

[43] In limited circumstances, a police officer may rely on the Code as authority to arrest a person without a
warrant. Those circumstances are set out in section 495 of the Code.

[44] Did Adlard have authority, pursuant to section 495, to make an arrest without a warrant for the offence
of assault on the afternoon of August 23, 2008? I conclude he did not:

• An indictable offence had not been committed (s. 495(1)(a));

• Reasonable grounds did not exist for Adlard to believe that Roxanne was about to commit an indictable
offence (s. 495(1)(a));

• Adlard did not find Roxanne committing a criminal offence (s. 495(1)(b)); and

• Reasonable grounds did not exist for Adlard to believe that an arrest without a warrant was required to
establish identity, secure or preserve evidence, prevent the continuation or repetition of an offence, or
prevent the commission of another offence and that unless an arrest was carried out Roxanne would fail
to attend in court (ss. 495(2)(c),(d),(e)).

[45] Consider Roxanne’s circumstances when seated on the front steps of the home and told to leave the
premises. The yard was small and fenced. There were five people in the yard: Roxanne, Morgan, Lavigne, and
two uniformed police officers. Each of Adlard, Cybulski, and Morgan was less than eight feet away from
Roxanne. The photographs of Morgan entered as exhibits are of a fit and strong individual.

[46] Roxanne’s attempts to respond to Adlard and present her side of the situation had failed. She had given
notice to Morgan that she intended to leave the home within a matter of days of August 23, 2008. Roxanne’s
mother lived in the city. Roxanne had a place to go. I accept Roxanne’s evidence that when she stood up from
the steps it was her intention to enter the home, retrieve some of her belongings, and leave the premises.

[47] The evidence as to what transpired at the home was given by Roxanne, Adlard, and Cybulski. Neither
Morgan nor Lavigne testified at trial. Roxanne’s evidence is generally consistent with Cybulski’s evidence with
respect to the events leading up to Roxanne’s arrest. They each testified that:

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• Immediately before standing up, Roxanne was seated on the front steps of the home with Lavigne
beside her;

• Adlard told Roxanne that she was required to leave the premises;

• Adlard explained to Roxanne that if she refused to leave she would be given a trespass notice –
“trespassed” in Cybulski’s words;

• Adlard told Roxanne she could, before leaving, re-enter the house to retrieve her things; and

• Roxanne stood up after being told she was permitted to re-enter the house to retrieve her things.

[48] Adlard’s evidence as to what transpired differs from Roxanne’s and Cybulski’s evidence. For the
following reasons, I prefer the evidence of Roxanne and Cybulski over Adlard’s evidence with respect to the
events leading up to the arrest for assault.

[49] First, Adlard testified that Roxanne was seated in a plastic chair in the yard and not on the steps to the
house. In cross-examination, he acknowledged that the latter scenario was possible.

[50] Second, there were a number of internal inconsistences in Adlard’s evidence. For example, he initially
described telling Roxanne that she “might” be required to leave the premises. However, more than once in
cross-examination, Adlard admitted that he told Roxanne in no uncertain terms she was required to leave the
premises.

[51] Third, it was not until Adlard was, in cross-examination, taken to his discovery transcript that he
admitted that, not only did he tell Roxanne she was required to leave, he told her that if she refused to leave she
could be arrested.

[52] It is not disputed that Roxanne’s agitation showed in her choice of words when speaking with Adlard.
Roxanne admitted that she used expletives at times. Adlard described Roxanne as belligerent. He based that
description on nothing more than Roxanne’s use of expletives and her request that Adlard speak on the telephone
with her mother. Neither speech peppered with expletives nor belligerence of that kind is indicative of an
individual who is on the precipice of committing the offence of assault.

[53] There is no evidence that prior to standing up, Roxanne directed any of her comments, expletives, or
agitation towards Morgan personally.

[54] I find that regardless of Roxanne’s use of expletives, her belligerence, and her demonstrable level of
agitation, she did nothing prior to standing up to cause either of the officers any concern that she posed a threat
of physical harm to Morgan. To that point, the officers did not have reasonable and probable grounds to arrest
Roxanne for assault.

[55] In assessing whether Adlard had grounds to make an arrest, his conduct is considered both objectively
and subjectively. An officer must have reasonable and probable grounds on which to base an arrest. In addition,
those grounds must be justifiable when viewed objectively: “[A] reasonable person placed in the position of the
officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest” (R. v.
Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 251). It is, however, recognized that the officer
need not establish a prima facie case for conviction before carrying out an arrest (Ibid.).

[56] Why did Adlard arrest Roxanne for assault and Cybulski thereafter assist Adlard in handcuffing
Roxanne? Critical to their handling of the situation was their respective assessment of Roxanne’s movement
when she stood up from her seated position.

[57] Adlard’s evidence was that when Roxanne stood up he believed:

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• Roxanne was “about” to assault Morgan;

• “[A]n assault was going to occur”;

• Roxanne’s movement was indication of “an imminent assault”; and

• “[C]ontact was about to happen”.

[58] Adlard acknowledged, however, that there was no contact between Roxanne and Morgan before the
arrest.

[59] Both Adlard and Cybulski testified that, upon standing, Roxanne “lunged” towards Morgan. Adlard
gave four explanations as to what he meant by a “lunge”:

a) A step towards Morgan;

b) A very big step;

c) Essentially the same thing as a step, given the distance separating Roxanne and Morgan; and

d) Moving towards Morgan “aggressively”, one foot in front of the other.

[60] Adlard’s description of Roxanne’s movement changed as he made record of it throughout the course of
the day. In his notes, Adlard described Roxanne’s movement as “aggressive”. In his Investigative Action
Report (“IAR”), prepared several hours after the arrest, Adlard described the movement as both “aggressive”
and “assaultive”. It is difficult to accept that Adlard’s memory of the events improved with the passage of time,
even if only a few hours.

[61] Cybulski’s evidence was that Roxanne was “upset” and “looked as though she might assault Morgan.”
Cybulski also described the step taken by Roxanne as a “lunge”. Cybulski testified that, as Roxanne made the
movement, one of Roxanne’s arms moved in front of her body and towards Morgan.

[62] In her notes made following the incident, Cybulski made no mention of an arm movement. She made
no mention of it in her IAR. Adlard testified that he did not observe any arm movement. I find that Cybulski is
honestly mistaken about her observation of an arm movement. The arm movement, if made, would in any event
be consistent with Roxanne’s evidence that she turned towards the front door of the house to open it.

[63] I find that when Roxanne stood up she did not “lunge” towards Morgan, nor did she move her arm in a
manner that would cause a reasonable person in either of the officers’ positions to conclude that Roxanne was
attempting or threatening to apply force to Morgan. By standing up, Roxanne did not add volatility to the
situation. Her movement did not cause the situation to change rapidly or to require immediate intervention by
the officers. The situation remained as it had been: “the removal of an unwanted person”.

[64] I find that there was neither a subjective nor an objective basis upon which to conclude that there were
reasonable and probable grounds to arrest Roxanne for assault. With respect to section 495 of the Code, I find
that the reasonable grounds required to support an arrest without a warrant did not exist.

c) Summary
[65] Adlard and Cybulski did not have authority to arrest Roxanne without a warrant under either the TPA or
the Code.

[66] Roxanne’s claim against the officers is based on the tort of false arrest and false imprisonment. The
former is a “tort resulting from the intentional and total confinement of a person against his or her will and
without lawful justification” (Collis v. Toronto Police Services Board (2007), 2007 CanLII 36634 (ON SCDC),

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228 O.A.C. 333 (Div. Ct.), at para. 28). I find that Roxanne has established the liability of Adlard for the tort of
false arrest.

[67] The tort of unlawful imprisonment “flows from the total deprivation of a person’s liberty” (Ibid).
Roxanne has established that, when she was placed in handcuffs, she was totally deprived of her liberty. I find
that Adlard is responsible for Roxanne being placed in handcuffs. The arrest and subsequent handcuffing were
the first in a series of events that led to Roxanne being falsely imprisoned.

[68] Cybulski’s role in the events at the home were that of a second officer on the call. For the reasons
discussed below (under Issue No. 3), I find that the decision to arrest and to apply handcuffs was not hers.
Cybulski assisted Adlard only when she saw that Roxanne was resisting arrest. I find that Cybulski is not liable
for either false arrest or false imprisonment.

Issue No. 2 – Did any of the officers use excessive force in their involvement with Roxanne Carr?
a) The Legal Standard for Use of Force by Police
[69] Police officers may be required to resort to force to complete an arrest or to prevent an offender from
escaping custody. There is, however, a limit to the power of police officers, acting in the course of their duties,
to inflict harm on a person. The degree of force allowed “remains constrained by the principles of
proportionality, necessity and reasonableness” (R. v. Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 S.C.R. 206, at
para. 32.)

[70] Section 25 of the Code prescribes legal constraints on the use of force by police officers. The Supreme
Court of Canada, in Nasogaluak (at paras. 34 and 35), considered section 25 and established guidelines for its
application to the circumstances of a given case:

• The use of force by a police officer to effect a lawful arrest is justified, provided that the officer (a)
acted on reasonable and probable grounds to make the arrest, and (b) used only as much force as was
necessary in the circumstances (section 25(1)).

• A police officer is prohibited from using a degree of force intended or likely to cause death or
grievous bodily harm, unless the officer believes such force is necessary to protect him or herself or
another person under the officer’s protection from death or grievous bodily harm (section 25(3)).

• The officer’s belief as to the degree of force necessary must be objectively reasonable. A review of
the degree of force used has both a subjective and an objective component.

• The actions of a police officer are not to be judged against a standard of perfection. The conduct of
the police is to be judged in light of their dangerous work and the emergency situations in which they
carry out their work.

[71] The officers deny they used excessive force. In their pleading, the officers only rely generally on the
provisions of the Code. Based on the evidence of the officers and the closing argument on their behalf, it is clear
that they rely specifically on section 25 in their defence of the claims based on use of excessive force.

[72] For the officers to successfully rely on section 25, they must satisfy a three-part test (Wilson v. Durham
Regional Police, 2011 ONSC 3419 (CanLII), at para. 68; the “Wilson test”). They must establish on a balance of
probabilities that they:

a) Were required or authorized by law to carry out the actions undertaken in their administration and
enforcement of the law;

b) Acted on reasonable grounds in carrying out the actions; and

c) Did not use unnecessary force.

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[73] For the purpose of applying section 25 of the Code to the events of August 23, 2008, I have divided the
incidents into three periods: (i) the arrest at the home; (ii) at the cruisers; and (iii) at the police station.

b) Arrest at the Home

▪ Adlard’s Actions
[74] I have already found that Adlard did not have authority to arrest Roxanne without a warrant. As a result,
Adlard is unable to satisfy the part one of the Wilson test. If, however, I am wrong, and the arrest was lawful,
then it is necessary to consider the parts two and three of the test.

[75] I have also already found that Adlard did not have reasonable and probable grounds to arrest Roxanne
for either an offence under the TPA or for assault pursuant to the Code. Adlard is therefore unable to satisfy part
two of the test.

[76] Part three of the Wilson test requires consideration of the degree of force used. It is undisputed that
upon standing from a seated position, Roxanne was taken to the ground and handcuffed by Adlard. The
evidence is contradictory as to whether Roxanne was brought down by Adlard from behind or otherwise;
whether, once Roxanne was on the ground, Adlard applied pressure to her shoulder using his knee and, at times,
pressure to her face using his boot; and whether after handcuffing Roxanne, and with pressure still applied to her
face, Adlard told Roxanne to get up or he would break her wrist.

[77] I find that there is no evidence to support a belief on Adlard’s part that he or anyone “under his
protection” (i.e. Morgan), was at risk of death or grievous bodily harm. Adlard testified that the only portion of
the discussion with Morgan to which he gave credence was Morgan’s request that Roxanne be removed from the
premises that afternoon. Adlard disregarded Morgan’s alleged concerns for his physical safety.

[78] Roxanne testified that during the arrest (a) Adlard was holding her wrist so tight that she was in
significant pain, and (b) at least one bone in her wrist was fractured.

[79] By the time Roxanne stood up from her seated position, she had demonstrated a level of agitation that
was palpable. I find, however, that her level of agitation did not warrant the use of force to the degree used by
Adlard when arresting Roxanne. Adlard is therefore unable to establish on a balance of probabilities that the
degree of force used was necessary. He is unable to satisfy the third part of the Wilson test.

[80] In summary, I find that the force used by Adlard at the time of Roxanne’s arrest was excessive; it was
not proportional, necessary, or reasonable.

[81] For Roxanne’s claim based on excessive use of force to succeed, she must establish both that excessive
force was used and that the excessive force used resulted in injury (Wilson, at para. 69).

[82] Medical records filed as exhibits confirm that subsequent to August 23, 2008 Roxanne was diagnosed
with fractures of two bones in her wrist. The Defendants did not lead any medical evidence to dispute that the
fractures of the bones in Roxanne’s wrist were caused by the manner in which she was physically handled at the
time of the arrest and/or by the application later in the day of the TRD (temporary restraining device). The
degree of force used when the TRD was applied is discussed in part (d), below.

[83] Roxanne also testified that, as a result of being taken to the ground by Adlard, she suffered cuts and
scrapes to the lower portion of her legs. She noticed the cuts and scrapes upon being placed in the back seat of
the cruiser.

[84] I accept Roxanne’s evidence that during the arrest she experienced a high level of pain in her wrist and
that she received the cuts and scrapes to the lower portion of her legs. I find that the use of excessive force by
Adlard during the arrest (a) caused or contributed to the fracture of one or two bones in Roxanne’s wrist, and (b)
resulted in abrasions to the lower portion of Roxanne’s legs. Those injuries form part of the assessment of
damages discussed below under Issue No. 6.
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▪ Cybulski’s Actions
[85] Cybulski testified that Roxanne resisted arrest by grabbing Adlard’s arm when he attempted to handcuff
Roxanne. Cybulski stepped in to assist Adlard at that time. Cybulski’s evidence was that there was a struggle
and the three individuals ended up on the ground. None of Roxanne, Adlard, or Cybulski gave any evidence as
to any use of force by Cybulski during the struggle.

[86] There is no evidence to support a conclusion that Cybulski used excessive force when she assisted
Adlard at the home.

c) At the Cruisers
▪ Adlard’s Actions
[87] Following the arrest, Adlard and Cybulski took Roxanne to Adlard’s cruiser. Roxanne’s evidence was
that, once she was at the cruiser, Adlard banged her head three times on the hood. Adlard denies doing so.
Cybulski testified that she did not see Adlard do so. Cybulski also testified that when Roxanne was inside the
cruiser Roxanne banged her head against the partition between the front and back seats.

[88] I find Cybulski to be a credible witness. She did not tailor her evidence to match or support Adlard’s
version of events at the home. Roxanne banging her head against the partition is consistent with other
undisputed aspects of Roxanne’s conduct while in the first cruiser, such as kicking out the glass of the passenger
and driver’s side rear windows. For those reasons, with respect to the events upon arrival at Adlard’s cruiser, I
prefer Adlard’s and Cybulski’s evidence over Roxanne’s.

[89] I find that Adlard did not strike Roxanne’s head against the hood.

[90] Roxanne alleges that as a result of her head being banged on the cruiser she suffered a black eye. The
assessment of damages below therefore does not take a black eye into account.

▪ Transfer from First to Second Cruiser

[91] Roxanne testified that, when she was transferred from the first to the second cruiser, she remained in
handcuffs with her legs bound together at the ankles by flex cuffs. The cuffs were placed around Roxanne’s
ankles to prevent her from continuing to use her legs and feet, as she did to break the windows of the first
cruiser.

[92] Roxanne’s evidence was that the officers who carried her from the first to the second cruiser deliberately
dropped her to the ground. The officers on the scene at that time were Adlard, Cybulski, Shore, and Virgin.

[93] Neither Adlard nor Cybulski has a specific recollection of the transfer. Shore recalls that when
transferring Roxanne, the officers travelled across a grassy area. Virgin testified that Roxanne had to be carried
between cruisers because she was unable to move on her own. He does not otherwise have a specific
recollection of the transfer.

[94] Virgin testified that he observed cuts to Roxanne’s ankles and feet and an abrasion on her shoulder
before she was removed from the first cruiser. He described Roxanne as very uncooperative, aggressive, and out
of control when she was in the first cruiser. Virgin’s description of Roxanne’s condition and behaviour is
consistent with Roxanne having kicked out two windows of the first cruiser.

[95] Virgin’s involvement with Roxanne was restricted to the transfer between cruisers and to delivering
Roxanne’s personal property (purse and footwear) to the cell block. He answered questions posed of him
directly, whether the questions were posed during examination-in-chief or in cross-examination. He did not
hesitate in answering questions. Even though he described Roxanne as uncooperative, et cetera, he did not
appear to be exaggerating or embellishing the situation. I accept Virgin’s evidence as to Roxanne’s behaviour
when in the first and second cruisers.

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[96] Roxanne’s level of agitation was such that, while lying prone on the back seat of the first cruiser (before
her legs and ankles were restrained), she was able to kick out the two rear windows of the cruiser. There is no
evidence that her level of agitation decreased after she was placed in flex cuffs and transferred from the first to
the second cruiser.

[97] Given Roxanne’s level of agitation by the time she was being transferred between cruisers, I find that
her memory of that portion of the afternoon is unreliable. It is possible that Roxanne’s agitation and movement
while being transferred resulted in (a) the officers having difficulty maintaining control of her, and (b) portions
of her body coming in contact with the ground during the transfer.

[98] Roxanne has not established that any one or more of the officers transferring her between the two
cruisers deliberately dropped her on the ground.

d) At the Police Station – Application of the TRD

▪ Marcil
[99] Upon Roxanne’s arrival at the police station, Cybulski and Morris removed Roxanne from the cruiser,
took her to the cell block area, and placed her face down on the floor. Roxanne was then searched.

[100] At the conclusion of the search Roxanne was still lying on the ground. The TRD was applied by Marcil
at that time. Roxanne testified that she believes a bone in her wrist was broken during the application of the
temporary restraining device (“TRD”). Her belief in that regard is based on an excruciating level of pain
experienced as Marcil tightened the device and used it to pull up on her arms.

[101] Marcil was required to refresh his memory of the events of August 23, 2008 by reviewing his IAR. He
acknowledged that he has only a very vague recollection of Roxanne and the application of the TRD.

[102] Marcil is well over six feet tall and appears to be a physically strong individual. He has an imposing
presence.

[103] Marcil was clear in his evidence as to when the TRD is to be used: “…when someone who comes into
our custody is being aggressive.” I emphasize Marcil’s use of the present tense. He made no reference to an
offender’s past behaviour as a reason to use the TRD. Marcil also testified that the purpose of the TRD is to
keep an offender from attacking anyone.

[104] I consider Marcil’s use of the TRD in light of the three-part Wilson test:

a) There is no evidence that Roxanne was being aggressive or that she was about to attack someone
once she arrived at the police station. Therefore, based on Marcil’s evidence, the criteria for the use
of the TRD were not met. I find that Marcil did not act in accordance with the applicable internal
policy for the use of the TRD;

b) For the reasons set out immediately above, I find that Marcil was not acting on reasonable grounds
when he used the TRD; and

c) I accept Roxanne’s evidence as to the level of pain that she experienced when the TRD was applied.
I find that (a) the force used by Marcil in the application of the TRD was not proportional, necessary,
or reasonable, and (b) caused or contributed to the fracture of at least one bone in Roxanne’s wrist.

[105] In summary, I find that Marcil (a) used excessive force in the application of the TRD, and (b) is unable to
rely on section 25 of the Code in defence of this aspect of the claim against him. When assessing the damages to
which Roxanne is entitled, I include the fracture of two bones in her wrist.

Issue No. 3 - Were any of the individual defendants negligent in the manner in which they carried out
their investigation of the events of the afternoon of August 23, 2008?

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a) The Standard of Care
[106] The standard of care required of a police officer carrying out an investigation is that of “a reasonable
police officer in all the circumstances”. The situation may include urgency; there may be deficiencies of
information; and neither perfection, nor even the optimum, when judged from hindsight, is required (see Hill v.
Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, at paras. 68,
73).

[107] An investigation has a number of stages. The conduct of a reasonable police officer may vary depending
on (a) the stage of the investigation in which he or she is involved, and (b) the legal considerations (495793
Ontario Ltd. v. Barclay, 2016 ONCA 656 (CanLII), 2006 ONCA 656, 132 O.R. (3d) 241, at para. 48).

[108] Roxanne relied on the decision of the trial judge in Barclay. That decision was overturned by the Court
of Appeal in September 2016, a number of months after closing argument in the matter before me. The Court of
Appeal concluded that the trial judge erred because she determined the applicable standard of care without the
benefit of expert evidence related to the particular type of investigation carried out by the police.

[109] When is expert evidence as to the standard of care required in cases of professional negligence?

b) Expert Evidence as to the Standard of Care

[110] As identified by the Court of Appeal in Barclay, “[t]he general rule is that the standard of care of a
professional, such as a police officer, will require expert evidence” (at para. 53). There are, however, two
exceptions to the general rule.

[111] The first is for “nontechnical matters within the knowledge and experience of the ordinary person”
(Barclay, at para. 57). The second is when the impugned conduct of the defendant is so egregious that it is
obvious that their conduct has fallen below the standard of care. In that circumstance, it is not necessary for the
trier of fact to know with precision the parameters of the standard of care (see Krawchuk v. Scherbak, 2011
ONCA 352 (CanLII), 106 O.R. (3d) 508, at para. 135, leave to appeal to SCC refused, 34359 (December 8,
2011)).

[112] The investigation on August 23, 2008 had a number of stages including (a) the investigation of the
situation at the home, and (b) West’s review of the information received from the four officers who attended at
the home and his decision to charge Roxanne with four offences. Did either stage of the investigation fall within
one of the two exceptions to the general rule that expert evidence as to the standard of conduct of the officers, as
professionals, is required?

▪ Investigation at the Home

[113] Roxanne alleges that Adlard and Cybulski were negligent in their investigation because they failed to
recognize (a) Roxanne’s right to remain at her residence, (b) that there were no reasonable and probable grounds
to arrest Roxanne, and (c) there was no evidence suggesting that Roxanne was involved in any criminal activity
at the time of the arrest. I have already made findings that Adlard failed to recognize each of those three things.
Was that failure negligent?

[114] Cybulski described the situation to which she and Adlard responded as “removal of an unwanted
person”. Nothing that occurred prior to the arrest elevated the nature of the call to a technical or specialized
one. The matter was nontechnical and within the knowledge and experience of an ordinary person.

[115] I find that the call to which Adlard responded falls within the first exception set out in Krawchuk.
Therefore, expert evidence is not required in order to determine the standard of care required of Adlard and
whether he was negligent in his investigation of the situation up until the time of arrest.

[116] The standard of care required of Adlard was that of “a reasonable police officer in all the circumstances.”
(Hill, at para. 68). The reasonable police officer was Cybulski. Based on her evidence, I find that the standard
of care is the measured approach she would have taken had the call been hers to manage. That approach
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included, if necessary, talking the situation out over a longer period of time than that taken by Adlard to speak
with Roxanne and Morgan.

[117] I find that Adlard’s failure to take a measured approach and his decision to take a forceful, if not
confrontational, approach are such that his conduct fell below the standard of care.

[118] For Roxanne’s claim against Adlard on the basis of negligent investigation to succeed, she must also
establish a causal connection between the breach of the standard of care and the compensable damages suffered.
The applicable test is the ‘but for’ test: “If, on a balance of probabilities, the compensable damage would not
have occurred but for the negligence on the part of [Adlard], then the causation requirement is met” (Hill, at
para. 93).

[119] I find that as a result of Adlard’s negligence in handling the investigation, the situation escalated and
ended with Roxanne’s arrest for assault. That arrest led to the series of events that transpired throughout the
balance of the day on August 23 and into the early morning hours on August 24, 2008, when Roxanne was
released from the Ottawa police station. I am satisfied that there is a causal connection between Adlard’s
negligence in his investigation of the situation at the home and the compensatory damages suffered.

[120] Cybulski was the second officer to respond to the call. Her evidence that the call was Adlard’s to
manage is uncontradicted.

[121] The standard of care of required of Cybulski as the second officer on the call does not fall within either
of the two Krawchuk exceptions to the general rule. To determine whether Cybulski’s conduct fell below the
standard of care, evidence is required as to:

1. The policy or practice of the OPS with respect to the second officer on a call and when, if at all, the
second officer is entitled and/or authorized to override the first officer; and

2. How that policy or practice compares to those of other police forces.

[122] The existence and/or contents of such practice or policy are not within the skill and knowledge of an
ordinary person. Without any evidence as to the practice and policy of the OPS with respect to second officers
on a call, I am unable to determine whether Cybulski’s conduct met the standard of care. In addition, I find that
Cybulski’s conduct was not so egregious that it is obvious that her conduct fell below the standard of care.

[123] As a result, in the absence of expert evidence, the claim against Cybulski based in negligent investigation
must fail.

▪ West’s Investigation
[124] Roxanne alleges that West was negligent in his investigation because he failed to recognize that the four
officers who prepared the IARs provided false information and/or withheld exculpatory information. Roxanne
also alleges that West failed to recognize that the four officers conducted themselves in that manner so as to
punish Roxanne and shield themselves from scrutiny, discipline, or liability for their respective actions.

[125] As of 2008, West had been with the OPS for over 20 years. In August 2008, he was a Detective working
in the Partner Assault Unit.

[126] West’s evidence as to his investigation and his interaction with Roxanne was as follows:

• He reviewed the IARs submitted to him by Adlard, Cybulski, Shore, and Virgin. He did not speak with
any of the officers.

• Based on his review of the IARs, he prepared a Promise to Appear (“PTA”) setting out the four charges.
The PTA required Roxanne to attend in Court for a first appearance and to return to the Police Station for
identification purposes.
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• Based also on the contents of the IARs, West prepared an Undertaking and Non-Communication Order
(“NCO”). The NCO prohibited Roxanne from speaking with Morgan and from being within 500 metres
of Morgan’s residence, except to return to the home, escorted by a member of the OPS, to retrieve her
personal belongings.

• Both the PTA and Undertaking/NCO were prepared before West went to the cell block area to speak
with Roxanne.

• West was aware, before speaking with Roxanne, that no one had interviewed her to obtain her version of
the events. He had no intention of interviewing Roxanne and did not do so. He spoke with Roxanne for
approximately seven minutes. He explained the charges and that Roxanne would be required to sign the
PTA and the Undertaking/NCO.

• West’s notes of the conversation with Roxanne consist of eight lines in his notebook.

[127] The IARs of each of the four officers were not introduced as evidence at trial. There is no evidence as to
the contents of the IARs prepared by Cybulski and Virgin. There is limited evidence as to the contents of the
IARs prepared by Adlard and Shore.

[128] There is no evidence as to West’s historical working relationship with any one of Adlard, Cybulski,
Shore, and Virgin. There is insufficient evidence to support a finding that, based on his historical working
relationship with any one or more of the officers and/or the contents of the IARs, it would have been reasonable
for West to conclude that the officers were motivated by self-protection when completing their respective IARs.
Nor is there sufficient evidence to support a finding that the standard of care required West to reach such a
conclusion.

[129] Roxanne submits that the manner in which West carried out his investigation amounts to “indifference to
the consequences of laying the charge[s] and [falls] short of even the rudimentary steps which might have been
taken to establish reasonable and probable grounds.” (see, for example, Beckstead v. Ottawa (City) Chief of
Police (1995), 1995 CanLII 10663 (ON SC), 37 O.R. (3d) 64 (Gen. Div.), at pp. 67–68, aff’d (1997), 37 O.R.
(2d) 62 (C.A.)).

[130] Beckstead is distinguishable on its facts for a number of reasons. In that case, the charge laid was fraud
with respect to use of a credit card to remove money from a bank account. The investigating officer spoke with
the accused for 20 minutes and never met face to face with the complainant. In support of his conclusion that
the accused was the individual shown in video photographs from surveillance equipment at the bank, the
investigating officer made entirely unfounded assumptions about a change in appearance of the accused.

[131] The type of investigation carried out in Beckstead was nontechnical and within the skill and knowledge
of an ordinary person. No expert evidence was led before the trial judge; none was required.

[132] There is no evidence before me as to what was required of West in carrying out his investigation and in
deciding to lay four charges against Roxanne. Did the OPS have a policy with respect to laying charges based
solely on IARs, without interviewing the officers involved and/or without interviewing the offender? If so, was
the policy of a technical or a nontechnical nature? The existence and/or contents of such a policy are not within
the skill and knowledge of an ordinary person. I am unable to conclude that the investigation carried out by
West was nontechnical in nature.

[133] In the absence of evidence as to the internal practices, if not policies, of the OPS with respect to
investigations of this kind, I am unable to determine whether West’s conduct fell below the standard of care.
Nor am I able to conclude that West’s conduct was so egregious that it is obvious that his conduct fell below the
standard of care.

[134] The decision of the Crown to ultimately withdraw the charges because of a lack of reasonable chance of
conviction allows for unwarranted hindsight; that is not the test to be applied when considering an allegation of
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negligent investigation.

[135] I find that the type of investigation carried out by West does not fall within either of the two exceptions
identified in Krawchuk. Therefore expert evidence is required with respect to the standard of care required of a
detective carrying out an investigation of the kind carried out by West.

[136] The claim against West based in negligent investigation fails.

Issue No. 4 – Was the conduct of one or more of the defendants in breach of Roxanne Carr’s rights
pursuant to section 7, 8, or 9 of the Charter?
[137] Roxanne asserts that her rights pursuant to one or more of three sections of the Charter were breached:

• The right to life, liberty and security of the person (section 7);

• The right to be secure against unreasonable search or seizure (section 8); and

• The right not to be arbitrarily detained or imprisoned (section 9).

a) Section 7 – Right to life, liberty and security of the person

▪ Excessive Use of Force
[138] There is overlap between the claim based on use of excessive force and the claim based on a breach of
Roxanne’s section 7 Charter rights. First, there is overlap in the evidence relevant to each of the claims.
Second, a finding that excessive force was used may support a further finding that Roxanne’s rights pursuant to
section 7 of the Charter were breached (see, for example, Nasogaluak, at para. 38.)

[139] In addressing this aspect of Roxanne’s claim, I rely on the findings made with respect to Issue No. 2. I
also take into consideration Roxanne’s evidence (a) as the extent to which she attempted to communicate to the
officers that she was, by reason of their actions, experiencing physical pain, and (b) that the officers ignored the
information she communicated. I accept Roxanne’s evidence in that regard.

[140] For example, Roxanne testified that at the time of the arrest she told Adlard that she was experiencing
extreme pain in her wrist. Roxanne’s evidence was that Adlard paid no heed to that information. Roxanne also
testified that Marcil persisted with the application and use of the TRD despite Roxanne’s complaints of pain in
her wrist.

[141] I find that the excessive use of force as found above under Issue No. 2 amounts to a breach of Roxanne’s
section 7 right to security of the person. I also find that the breach was not committed in accordance with any
principle of fundamental justice.

▪ Left Naked in Cell for Over Two Hours

Basis for removal of clothing
[142] The Cell Check Report entry for 4:10 p.m. states that Roxanne “tried to tied [sic] shirt around neck.”
When that observation was made, four officers went to Roxanne’s cell and conducted a search that ended in
Roxanne’s clothes being removed. The officers were Marcil, Desjourdy, Morris, and Cybulski.

[143] There are inconsistencies in the evidence of each of the officers as to (a) who originally made the
observation, (b) how the observation was communicated, (c) in what state Roxanne was found when the officers
arrived at the holding cell, and (d) the specifics of what occurred in the cell.

[144] For example, Morris testified that Marcil alerted the others that Roxanne was attempting to tie herself
with her clothing. Morris was unable to recall if Marcil was in front of the monitors when he gave that alert.
Marcil denied giving the alert. Cybulski was uncertain as to who gave the alert. She testified that Desjourdy
may have issued the alert that “someone’s hanging”.
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[145] Marcil testified that he was the first officer to the cell. He had the keys to open the door to the cell.
Marcil and Morris both testified that when they arrived at the cell Roxanne was standing at the back of it. The
evidence of the officers varied from Roxanne having an item of clothing tied around her neck to Roxanne
holding the article of clothing over her head. Morris was unsure whether the article of clothing was Roxanne’s
top or pants. Marcil thought the article of clothing was Roxanne’s top.

[146] Marcil acknowledged that in his IAR he recorded that Roxanne attempted to tie herself to the cell door
with an article of clothing. However, he was unable to say when he made that observation. He testified that he
would not have been able to open the cell door if Roxanne had attempted to tie herself to the door with an article
of clothing.

[147] Desjourdy acknowledged that none of the video footage for Roxanne’s holding cell shows an article of
clothing tied around the bars of the cell door.

[148] The officers acknowledged that once the alert was issued they made their way quickly to Roxanne’s cell.
The video footage shows Marcil running to the cell. Desjourdy described the officers as getting to the cell at a
“fast pace”. None of the officers provided an explanation as to how it would have been possible for Roxanne to
untie an article of clothing from the bars of the cell door and move to the back of the cell—all in the short time
that it took the officers to get to the cell.

[149] Each of the officers recorded notes and/or prepared an IAR with respect to their involvement with
Roxanne. One purpose served by officers’ notes and IARs is to assist officers in refreshing their memory when
giving evidence in court. That they would seek to refresh their memory is not surprising, given the number of
individuals with whom they deal over time in the cell block. Despite having prepared these documents and
having the documents available to refresh their memory, the officers were inconsistent in their evidence
regarding the event that led to the alert being called. They were also inconsistent in their evidence as to how
Roxanne’s clothing was removed.

[150] Item D21 of the “OPS Cell Block Policy and Procedure” prescribes the level of monitoring required of a
person who “is/may be suicidal”. Such an individual “shall be continuously monitored on video in a private cell
and personally viewed at least every fifteen minutes.” The Officer in Charge is also mandated to continuously
monitor suicidal prisoners (Item G10). There is no evidence that Roxanne was monitored in that manner. If the
officers truly believed that Roxanne posed a danger to herself in that she was suicidal, they were required to
monitor her more extensively than they did following the incident in the cell and the removal of her clothing.

[151] Roxanne denies that she at any time attempted to either tie an article of her clothing around her neck or
to the door. The video footage of the search carried out when Roxanne arrived at the cell block area shows that
she was entirely passive. In the video footage of Marcil leading Roxanne to her cell, she is compliant. By the
time Roxanne was placed in her cell, she had suffered two broken bones in her wrist.

[152] Given (a) the inconsistencies in the evidence of the officers as to what gave rise to the alert being called,
(b) the lack of adherence, following the removal of Roxanne’s clothing, to Item D21 of the “OPS Cell Block
Policy and Procedure”, (c) Roxanne’s passive and compliant behaviour upon arrival at the police station, and (d)
Roxanne’s denial that she attempted to tie an article of her clothing around her neck or the cell block door, I find
that no event occurred that gave rise to reasonable grounds for the officers to remove Roxanne’s clothing.

[153] In summary, I find that the removal of Roxanne’s clothing was a breach of her section 7 right to security
of the person. I also find that the breach of Roxanne’s section 7 right was not carried out in accordance with the
principles of fundamental justice.

Two hours without a suicide suit

[154] After Roxanne’s clothes were removed she was left naked in the holding cell for over two hours. The
evidence of what occurred in that two-hour period includes the video footage, the Cell Check Report, the

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testimony of Morris and Desjourdy, and Roxanne’s evidence. Desjourdy was the officer in charge of the cell
block that afternoon and evening.

[155] In the slightly more than two hours that followed the removal of Roxanne’s clothing, the following
occurred:

• Roxanne was given a garment to wear at 5:13 p.m. The garment was a suicide suit, intended to
provide coverage while eliminating the opportunity for self-harm. Roxanne was unable to don the
garment and told Morris she was unable to do so. Morris responded by telling Roxanne (a) to throw
the garment into the hallway adjacent to the cell, and (b) that she would be provided with another
garment. Roxanne threw the garment into the hallway within a matter of minutes after receiving it.

• Cell block officers patrolled the hallways and checked the cells approximately every 30 minutes.
They also observed the cells using the monitors for the closed circuit cameras.

• Morris made an entry in the Cell Check Report for 5:46 p.m. identifying that Roxanne had thrown
the garment into the hallway.

• It was not until 8:03 p.m. that Morris provided Roxanne with another garment (a larger suicide suit).

[156] I find that neither Morris nor Desjourdy gave a reasonable explanation for the delay of over two hours in
taking steps to ensure that Roxanne was provided with a second suicide suit.

[157] The “OPS Cell Block Policy and Procedure” was entered as evidence. Item D1 from that document
states:
The Ottawa Carleton Regional Police Service affirms the fundamental rights of all
prisoners to be treated with fairness and respect at all time in accordance with the
Charter of Rights and freedoms [sic] and the Criminal Code. This includes the
right to counsel, humane treatment, and immediate medical attention where
required. [Emphasis added.]

[158] In addition to this general affirmation, Item F29 of the document requires that the cell block attendants
“[e]nsure that an adequate supply of prisoner smocks and footwear is maintained.” Item F30 makes is
mandatory for the cell block attendants to provide a prisoner smock to a prisoner who is “believed to be
suicidal.”

[159] With respect to Roxanne being left naked in a holding cell for more than two hours, I find as follows:

• The conduct of Morris and Desjourdy fell below the standard expected of them on the basis of the
“OPS Cell Block Policy and Procedure” document;

• Being left naked in the holding cell for more than two hours, was a breach of Roxanne’s right to
security of the person; and

• The breach of Roxanne’s section 7 right was not carried out in accordance with the principles of
fundamental justice.

b) Section 8 – Right to be secure against unreasonable search or seizure

[160] For a search to be reasonable under section 8 of the Charter (a) it must be authorized by law, (b) the
authorizing law must itself be reasonable, and (c) the search must be conducted in a reasonable manner (R. v.
Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v. Cornell, 2010 SCC 31 (CanLII), [2010] 2
S.C.R. 142, at para. 16).

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[161] Roxanne was the subject of a search upon arrival at the police station. That search was one of a series of
events that followed what I have found to be an arrest made without authority. As a result, the search was not
authorized by law and was a breach of Roxanne’s section 8 right to be secure against unreasonable search.

c) Section 9 – Right not to be arbitrarily detained or imprisoned

[162] Roxanne asserts that she was arbitrarily detained when the police officers arrived at the home. I accept
Roxanne’s evidence that she believed she was not free to leave the yard except as directed by Adlard. She did
not attempt to enter the home except when told by Adlard to go inside and retrieve her personal belongings so
that she could leave; the only time she moved was to do so. I find that Roxanne was detained prior to being
arrested.

[163] Roxanne’s detention falls in the category of an investigative detention. In R. v. Mann, 2004 SCC 52
(CanLII), [2004] S.C.R. 59, at paras. 34 and 35, the Supreme Court of Canada established a number of guiding
principles with respect to the power of the police to detain for investigative purposes.

[164] Based on Adlard’s evidence, he recognized that he was not investigating any recent or ongoing criminal
offence. He was responding to a “dispute/disturbance” call. I find that he was carrying out his common law
duty of preserving the peace (Mann, at para. 26.) I find that both subjectively and objectively Adlard’s decision
to handle the situation as forcefully, if not confrontationally, as he did was neither reasonable nor necessary to
fulfil his duty at the time.

[165] In summary, I find that Roxanne’s section 9 right not to be arbitrarily detained was breached.

Issue No. 5 – Was the Ottawa Police Services Board negligent because it failed to provide its officers with
reasonable training, supervision, and oversight?
[166] No expert evidence was called as to the standard of care required of the Ottawa Police Services Board
(the “Board”) with respect to training, supervision, and oversight of its officers. I find, however, that this aspect
of Roxanne’s claim does not fall within either of the two exceptions set out in Krawchuk.

[167] The conduct required of the Board in providing training, supervision, and oversight to its officers is not
nontechnical. An ordinary person would not be expected to have knowledge of the requisite conduct. The
evidence does not establish conduct on the part of the Board so egregious that it is obvious that the Board’s
conduct fell short of the standard of care. Evidence is required of the precise parameters of the standard of care.

[168] Thus, in the absence of expert evidence on the issue of standard of care this aspect of Roxanne’s claim
must fail.

[169] I turn to Roxanne’s claim for punitive damages on the basis of the failure of the Board to provide
training, supervision, and oversight to its officers with respect to an individual’s Charter rights. In cross-
examination, the officers were questioned as to their knowledge of a system, if any, by which the OPS (a) tracks
findings of Charter breaches made against its officers in criminal proceedings, (b) informs officers of such
findings, and (c) attempts to address those breaches in an effort to prevent future Charter breaches. The officers
were unaware of any formal system in that regard in place at the OPS. There was otherwise no evidence led
with respect to the existence of lack of a system in that regard at the OPS.

[170] In closing argument, the assertion made was that, as a result of the lack of such a system, an officer
whose conduct is found to have been in breach of an individual’s Charter rights will not be informed of that
finding or receive training so as to avoid such breaches in the future.

[171] For the following reasons, Roxanne’s claim for punitive damages on the basis of the failure of the OPS to
train, supervise, and oversee the conduct of its officers with respect to Charter breaches fails:

• First, I am not satisfied that such a system is lacking at the OPS. The only evidence before me is
that the officers who testified were unaware of the existence of such a system.
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• Second, by reason of the lack of expert evidence with respect to the standard required of the Board, I
am unable to find that the Board was negligent with respect to training, supervision, and oversight of
Charter breaches.

• Third, there is no evidence before me as to any causal connection between any deficiency in the
training, supervision, and oversight on the part of the OPS as relates to Charter breaches and the
individual officers named as defendants in this action.

Issue No. 6 – Assessment of Damages

a) General damages
[172] Roxanne is entitled to an award of general damages based on my findings that she was the subject of an
unlawful arrest, unlawful imprisonment, the use of excessive force, and negligent investigation.

[173] The evidence in support of Roxanne’s claim for general damages is found in Roxanne’s testimony, the
evidence of her mother Mary Susan Cardill, the evidence (both oral and documentary) of psychotherapist Sandra
Flear, and a small number of hospital and medical records filed pursuant to section 35 of the Evidence Act,
R.S.O. 1990, c. E.23.

[174] Ms. Flear was the only health-care professional to testify at trial. No medical professional testified. No
expert opinion evidence was led.

[175] The defendants did not call any witnesses to provide medical or healthcare evidence in response to the
claim for damages.

[176] The medical and healthcare records filed are replete with hearsay. In assessing the general and all other
heads of damages to which Roxanne is entitled, I rely only on those portions of the records filed that are
admissible as evidence pursuant to the business records section of the Evidence Act.

▪ Physical Injuries
[177] Roxanne seeks compensation for the following physical injuries:

A black/swollen eye: The photographs taken of the left side of Roxanne’s face and entered as exhibits
are of a poor quality. Based on the photographs, it is difficult to assess the extent of the black and/or
swollen eye that Roxanne alleges she suffered. In any event, for the reasons set out above, I do not
include a black and/or swollen eye in the assessment of general, non-pecuniary damages.

Two fractured bones in wrist: There is no evidence that prior to August 23, 2008, Roxanne
experienced any physical problems with her right wrist. I have already found that on August 23, 2008
Roxanne suffered fractures of two bones in her right wrist. As a result of the fractures, Roxanne does not
have full range of motion in her wrist and there is a bump on the outside of her right arm, slightly above
the wrist. There is no evidence that the restricted range of motion has any impact on the function of the
wrist. Roxanne was advised in the fall of 2008 to attend physiotherapy for her right wrist. She did not
do so because she was too afraid to leave the home where she was staying at the time. There is no
evidence that if Roxanne had attended physiotherapy she would have achieved a better recovery from the
fractures.

Burn to left hand: The photographs taken in the days following the accident show a blister, in the form
of a bubble, at the base of Roxanne’s left thumb towards the inside of her arm. Roxanne’s evidence was
that she suffered the burn because of the extremely hot condition inside the second cruiser. The evidence
as to the condition of the second cruiser is contradictory. I am unable to find on a balance of
probabilities that the condition of the second cruiser was such that it resulted in a burn to Roxanne’s left
thumb.

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Abrasions and bruising: Roxanne suffered abrasions to her head, right shoulder, lower legs, and the top
of her right foot. The bruising and abrasions resolved in the ordinary course. I have already found that
the abrasions to the legs occurred at the time of the arrest, when Roxanne was taken to the ground and a
struggle ensued. I am satisfied that the abrasions to the head, right shoulder, and foot are the result of the
arrest and the struggle at that time.

Soft tissue injuries to both shoulders: Roxanne experienced pain in her shoulders following August
23, 2008. She saw Dr. Mark Aubry for a consultation in late 2013 and for a pre-surgical appointment in
early 2014. Dr. Aubry’s clinical notes and records indicate that he diagnosed Roxanne with rotator cuff
tendinitis in one shoulder. The report of an MRI done in late 2013 identifies “[m]inimal AC joint
degenerative change. Degradation anatomical detail from motion artifact.” I am not satisfied that there
is a causal connection between the conditions diagnosed five years after August 23, 2008 and the events
on that date. There is insufficient evidence to support a finding that the problems experienced by
Roxanne with her shoulders were, on a balance of probabilities, caused or contributed to by the events of
August 23, 2008.

Lipoma in right scapula: Dr. Aubry’s clinical notes and records indicate that he also diagnosed
Roxanne with a lipoma in the area of her right scapula. Once again, the diagnosis was made more than
five years after August 2008. The lipoma was eventually surgically removed. There is insufficient
evidence to support a finding that the lipoma is the result of the events of August 23, 2008.

[178] In summary, I find that the physical injuries for which Roxanne is entitled to compensation are the
fractures of the two bones in her right wrist and the bruising and abrasions to her head, right shoulder, lower
legs, and top of the right foot.

[179] A number of the injuries for which Roxanne is entitled to compensation were suffered at the time of and
as a result of the struggle during the arrest—an arrest that I have found was made without authority. Roxanne
was entitled to resist the unlawful arrest, even though it was being made by a police officer (R. v. Plummer
(2006), 2006 CanLII 38165 (ON CA), 83 O.R. (3d) 528 (C.A.), at para. 48.) The resistance included Roxanne’s
efforts to grab Adlard’s arm, the end result of which was that one of Adlard’s arms was scratched. I find that
Roxanne’s conduct in resisting the arrest was reasonable in the circumstances. I have not reduced the
assessment of general non-pecuniary damages because of Roxanne’s conduct at the time of the arrest.

▪ Psychological Injuries
[180] Roxanne also seeks compensation for psychological injuries including insomnia, anxiety, and post-
traumatic stress disorder.

Psychological health prior to August 23, 2008

[181] Roxanne’s health and well-being prior to August 23, 2008 are relevant to the assessment of damages, in
particular with respect to the psychological injuries Roxanne alleges she suffered. Based on Roxanne’s evidence
and the admissible evidence from the records filed, I find as follows:

• During her childhood years, Roxanne was under the auspices of the Children’s Aid Society. Before
she was adopted by the Carr family, Roxanne lived in foster care. In one of the multiple foster
homes, she was the victim of physical and sexual abuse;

• In 2005 and 2006, Roxanne received treatment from a psychiatrist. The treatment included
counselling and a prescription for an anti-depressant;

• In December 2005, Roxanne was the victim of an assault. The assault was the result of a domestic
dispute involving Roxanne’s roommate and the roommate’s former partner. Roxanne was struck on
the head with a baseball bat. As a result of the blow to the head, Roxanne suffered from headaches.
She remained off work for a number of months following the assault; and

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• Following the assault in December 2005, Roxanne continued under the care of a psychiatrist and
received treatment for depression, anxiety, and borderline personality disorder.

[182] Roxanne testified that following the baseball bat assault she was diagnosed as suffering from seizures.
Her evidence was that (a) the seizures were precipitated by stress and resulted in an inability to speak, and (b) by
the summer of 2008 she had not experienced a seizure for a number of months.

[183] Ms. Cardill described her daughter’s condition following the December 2005 assault: Roxanne suffered
from headaches, was untrusting of strangers, and became apprehensive. Ms. Cardill testified that she witnessed
Roxanne have at least one seizure. She observed Roxanne’s eyes close for approximately 30 minutes and it
appeared as if Roxanne had fallen asleep. According to Ms. Cardill, the seizures improved over time.

[184] Roxanne’s condition following the baseball bat assault was investigated by neuromuscular specialist, Dr.
Corrin. In December 2006, Dr. Corrin reported to Roxanne’s family physician that the “diagnostic question”
was whether Roxanne’s persisting complaints were “seizure versus functional”. The medical records do not
provide any evidence of the answer to the “diagnostic question”.

[185] I am unable to conclude on a balance of probabilities that Roxanne was diagnosed with a seizure
condition prior to August 23, 2008.

Psychological health subsequent to August 23, 2008

[186] Roxanne’s evidence was that as a result of the events on August 2008 she developed and continues to
suffer from post-traumatic stress disorder (“PTSD”). She testified that the condition was diagnosed in 2009,
following an emergency department visit to the Ottawa Hospital. The records of that attendance were not filed
as evidence. There is, however, an entry in the Ministry of Health De-Coded List of Services for an attendance
at the Ottawa Hospital on that date.

[187] Roxanne testified that the symptoms of PTSD she experienced and continues to experience include:

• The desire to spend time in solitude;

• The lack of a social life because of a desire to avoid people, crowds, and noisy environments;

• A heightened response to the sound of sirens;

• Fear of standing in front of open windows for fear of being shot;

• Being more easily startled, including by nearby, sudden movements; and

• A general fear of police and, specifically, a concern that she is being followed by either the police or
people affiliated with Morgan.

[188] Roxanne testified that, as a result of the PTSD, she was unable to remain in Ottawa. She initially moved
to Brockville and ultimately to Toronto, where she continues to reside. She described leading a solitary life.
She manages her PTSD by spending time in nature, exercising, doing yoga, using aromatherapy, and listening to
peaceful music.

[189] In 2010, Roxanne began to see psychotherapist, Sandra Flear. Ms. Flear testified and her clinical notes
from May 2010 to May 2016 were entered as exhibits at trial. Ms. Flear has been a registered psychotherapist in
private practice since 2004. As a psychotherapist, she is a member of a regulated health profession.

[190] Ms. Flear provides treatment in the areas of relationship therapy, trauma, and anxiety. Her
psychotherapist training was with The Toronto Institute for Relational Psychotherapy from 2002 to 2007. In
addition to that general training, she took an eight-month course related to the treatment of trauma.

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[191] Ms. Flear acknowledged that as a psychotherapist she does not make diagnoses, including that she does
not diagnose PTSD. She does, however, treat individuals who have been diagnosed with PTSD.

[192] Ms. Flear testified that it appears to her that Roxanne receives benefit from the counselling sessions. As
of 2016, Roxanne appeared to be more stable and calm than she was when during the early part of the
counselling. Roxanne concurred, testifying that there has, since 2009, been improvement in her symptoms.

[193] Ms. Flear anticipates that if Roxanne continues to receive counselling, the symptoms she experiences
will decrease but will never be extinguished. Ms. Flear’s recommendation is that Roxanne continue to attend
counselling once or twice a year for an indeterminate number of years.

[194] The only medical evidence with respect to Roxanne’s mental health subsequent to August 23, 2008 is a
report of Dr. Wright dated January 2015. That report was filed as a business record pursuant to section 35 of the
Evidence Act. The report indicates that when Dr. Wright prepared the report she was a psychiatry resident with
the Mental Health Clinic at St. Michael’s Hospital in Toronto. A copy of Dr. Wright’s resume is not in evidence.
Dr. Wright was not called to testify.

[195] Dr. Wright’s report, like the other documents filed as business records, is replete with hearsay. The
admissible evidence from the report includes the following:

• Roxanne was referred by her family physician for a psychiatric assessment. Dr. Wright carried out that
assessment over two days in January 2015.

• Dr. Wright diagnosed Roxanne as experiencing symptoms “most consistent with a diagnosis of post-
traumatic stress disorder, with panic attacks specifier”.

• Dr. Wright also identified evidence of schizotypal personality traits that did not appear to be impacting
Roxanne’s function and were likely “a normal variant”.

• The symptoms of borderline personality disorder/traits may be a form of “complex post-traumatic stress
disorder, given the abuse [Roxanne] suffered growing up.”

[196] Without the benefit of a resume for Dr. Wright and oral testimony from her, it is difficult to determine the
reliability of and weight to be given to her evidence.

Summary – psychological injuries

[197] Despite the deficiencies in the evidence, I am satisfied, on a balance of probabilities, that (a) subsequent
to the events of August 2008 Roxanne suffered from PTSD, and (b) the symptoms of PTSD have persisted since
that time.

[198] There is insufficient evidence to support a conclusion that as a result of events that pre-dated August
2008, Roxanne was a “crumbling skull” plaintiff. I find that events prior to August 2008 contributed to Roxanne
being psychologically vulnerable. As such, she is a “thin skull” plaintiff.

[199] I am mindful, however, that (a) the lack of medical evidence and expert opinion evidence with respect to
Roxanne’s psychological health prior to August 23, 2008, and (b) the extent to which pre-incident factors
contribute to Roxanne’s ongoing psychological difficulties, not result in overcompensation.

▪ Summary – General Damages

[200] I assess the general damages to which Roxanne is entitled in the amount of $90,000.

b) Loss of Income, Competitive Advantage, or Earning Capacity

[201] Roxanne alleges that as a result of the injuries suffered on August 2008, she was unable to return to work
in the information technology field and as a result suffered “a loss of income, loss of competitive advantage
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and/or loss of earning capacity” (statement of claim, para. 32).

[202] There is, however, no medical evidence, no evidence from a healthcare professional, and no evidence
from a vocational expert to support a finding that, as a result of the injuries suffered on August 2008, Roxanne
was unable and shall remain indefinitely unable to return to gainful employment. I therefore approach the loss
of income component of Roxanne’s claim as one for damages for loss of earning capacity.

[203] Roxanne’s claim for damages under this heading is based on an intention to work in the information
technology field. She had worked in that field for a number of years in Toronto, before returning to Ottawa, and
for a number of months in Ottawa prior to August 2008.

[204] No evidence was led with respect to the labour market—for example, as to the availability of positions in
the information technology field in Ottawa or Toronto in 2008 and the years since then. In addition, there is no
accounting or actuarial evidence as to Roxanne’s annualized loss of income under any scenario from August
2008 to a chosen date or dates of retirement.

▪ Roxanne’s Education, Employment History, and Historical Income

[205] Roxanne completed high school in Ingersoll, returned to Ottawa, and attended Algonquin College in the
Culinary Management Program. She worked in that field both in Ottawa and Toronto: her jobs included being a
cook, a baker, and a chocolatier. Roxanne returned to Algonquin College for a computer technology program.
In the late 1990s, Roxanne secured a position with IBM. She worked full time for IBM for seven or eight years.

[206] Based on Roxanne’s testimony and the income tax returns entered as evidence, I find that Roxanne’s
work history and income in the five years immediately preceding August 2008 were:

2003 - Full-time employment with IBM and earnings of $35,676

2004 - Full-time employment with IBM and earnings of $43,639

2005 - Full-time employment with IBM and earnings of $32,279

2006 - On short-term disability for a number of months and then left the employ of IBM, with a total
income (including short-term disability benefits) of $13,623

2007 - Unemployed and received unemployment insurance benefits of $11,770

2008 - Worked full time with Corel for approximately five months before being laid off in July, with
employment income of $24,492, unemployment insurance benefits of $6,678, and other
unexplained income of $1,687.

[207] Roxanne’s evidence was that the entire department in which she worked for Corel was laid off in July
2008. There is no evidence as to Roxanne’s performance level during her five months with Corel or her seven
years with IBM. No documents from Roxanne’s personnel file with either company are in evidence before me.
I have no sense of the view that Roxanne’s employers had of her skill set, performance generally, or qualities as
an employee.

[208] There is no evidence that Roxanne attempted to find work after being laid off by Corel and prior to
August 23, 2008. She testified that it was her intention, as of that date, to attempt to secure work in the
information technology field and to continue working in that field indefinitely.

▪ After August 2008

[209] Roxanne worked for two very brief periods subsequent to August 2008. She first worked in Ottawa in
2008 and then in Brockville in 2009. She testified that she left both positions because of a concern that the
police had located and were watching her.

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[210] Roxanne also testified that, after August 2008 and before leaving Ottawa in 2009, she applied for a
position with Nokia, had a couple of interviews, and was scheduled for a further meeting at Nokia. Roxanne
described being close to securing the position for which she had applied. She did not attend the further meeting
because she chose to leave Ottawa. Roxanne testified that her reason for leaving Ottawa was fear that the police
were watching her.

[211] Prior to leaving Ottawa, Roxanne registered for and began the paralegal program at Algonquin College.
She attended only briefly because she decided that the program was not for her.

[212] Roxanne’s evidence was that while the four charges from August 2008 were still outstanding it would
have been impossible for her to obtain a security clearance (as she had done when working with IBM), if
required, for a position with an information technology company.

[213] Roxanne has otherwise been unemployed since August 2008 and relying on social assistance for
income. For the years 2009 through 2014, Roxanne’s income ranged from approximately $5,000 to $7,000.

▪ Summary – Loss of Earning Capacity

[214] I find that the injuries suffered by Roxanne have had an impact on her ability to return to work.

[215] When assessing damages based on loss of earning capacity, it is helpful to have actuarial and/or
accounting evidence setting out an arithmetic calculation upon which to base the assessment of damages under
this heading. I do not have the benefit of evidence of that kind.

[216] I have considered Roxanne’s experience after the baseball bat assault. Following that incident, it took
Roxanne approximately two years before she returned to full-time employment.

[217] It was not until April 2011 that the four charges against Roxanne were withdrawn. I accept Roxanne’s
evidence that the existence of those charges posed a hurdle to obtaining employment, in particular employment
for which a security clearance was required. I find that, for two years and eight months, the charges posed an
impediment to Roxanne securing employment. Roxanne would not have been expected to secure employment
immediately following the withdrawal of the charges.

[218] Taking into consideration Roxanne’s historical experience and the timing of the withdrawal of the four
charges, I use on three years income as an arithmetic basis for the assessment of damages for loss of earning
capacity.

[219] Based on Roxanne’s historical annual income when working at IBM (an average of approximately
$37,300) and the income earned in five months when working at Corel (approximately $25,000). I arrive at an
annual income of $40,000.

[220] I assess the damages to which Roxanne is entitled for loss of earning capacity in the amount of $120,000
($40,000 x 3).

[221] I do not reduce the total of $120,000 because of income received in the two-year period following
August 2008. My arithmetic calculation not intended to reflect an actual past loss of income. Damages awarded
for loss of earning capacity are not subject to reduction for income earned to the date of trial.

[222] Following oral argument, a motion was made on Roxanne’s behalf for leave to amend the statement of
claim to increase, from $150,000, the damages claimed for loss of income, loss of competitive advantage, or loss
of earning capacity to the amount awarded if in excess of $150,000. Leave to amend the statement of claim is
not required and the motion is dismissed.

c) Out-of-pocket and Future Expenses

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[223] The out-of-pocket expenses claimed are for (a) the Ministry of Health subrogated claim, (b) the cost of
the sessions with Ms. Flear to the date of trial, and (c) the amount of the invoice delivered by counsel who
represented Roxanne on the four charges arising from August 23, 2008. The future expenses claimed are for the
counselling sessions that Ms. Flear has recommended Roxanne to attend.

▪ Ministry of Health Subrogated Claim

[224] The parties agree that the subrogated claim on behalf of the Ministry of Health for cost of health-care
services provided is in the amount of $1,538.13.

▪ Sessions with Ms. Flear (2010 to 2016)

[225] The fee for each session is $100, inclusive of HST. Ms. Flear testified that she continued with Roxanne’s
sessions without being paid in full. Roxanne paid anywhere from $0 to $80 per session over time.

[226] Ms. Flear estimated that, from May 2010 to the date of trial, Roxanne had attended approximately 125
sessions. From the clinical notes filed as exhibits, I count approximately 70 sessions. In addition to the 70
sessions for which substantive notes were made, there were tens of entries for appointments that Roxanne did
not attend. Those entries indicate a “no-show” for or cancellation of an appointment.

[227] The substantive notes for the sessions are not exclusively related to the events of August 23, 2008. The
subjects discussed include other circumstances or events with which Roxanne struggles. For example, there are
a number of references to abuse suffered by Roxanne in the foster care system during her childhood. I am also
mindful of the fact that Roxanne was under the care of a mental health professional from time to time prior to
August 2008.

[228] I therefore find that 50 percent of the cost of the sessions is related to the PTSD arising from the events
of August 23, 2008, and the other 50 per cent of the cost is for matters unrelated to those events. I assess the
out-of-pocket expenses for the sessions with Ms. Flear to the date of trial at $3,500 (50 percent of 70 sessions at
$100 per session).

▪ Invoice of Counsel in Criminal Matter

[229] On the basis of my findings that the arrest was unlawful and that Adlard’s investigation of the situation at
the home was negligent, I find that Roxanne is entitled to damages for the expenses associated with having
counsel to represent her in the criminal matter.

[230] The invoice delivered to Roxanne by her counsel in the criminal matter is in the amount of $17,273.71.
The invoice was delivered to the office of Roxanne’s counsel in the matter before me. The invoice is based on
$15,000 for fees, HST in the amount of $1,950.00, and disbursements totalling $323.71 (process server and
photographic printing).

[231] Roxanne testified that her counsel attended court on her behalf on at least 25 occasions. Roxanne was
not required to and did not attend court on each occasion. The charges were withdrawn in April 2011.

[232] The invoice delivered is a single page. The description of the services rendered is:
To meetings with you; to court appearances, to receipt and review of disclosure;
attendance at Judicial and Counsel Pre-trials; preparing stay application;
attendance for trial on trial dates where the matter was not reached; preparation of
McNeil, O’Connor and Stinchcombe applications and application records.

[233] No additional particulars are provided by way of either dockets attached to the single-page invoice or a
breakdown by number of hours, hourly rate, and total time spent by each timekeeper (lawyer, clerk, etc.) whose
fees are included in the invoice.

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[234] There is no evidence as to the retainer agreement between Roxanne and her counsel in the criminal
matter—whether it was on a fee-for-service or block fee basis.

[235] The assessment of damages is not identical to an assessment of a solicitor-client account. However, I am
required to consider whether the damages claimed are reasonable. In the absence of better particulars with
respect to the nature of the retainer and the basis for the fees charged, I am not prepared to award damages based
on the full amount of the invoice. I find it reasonable to allow, as damages, 70 per cent of the fees charged.

[236] I assess the damages for expenses incurred in response to the criminal charges at $12,188.71 ($10,500
for fees, $1,365 for HST, and $323.71 for disbursements).

▪ Expense for Future Counselling Sessions

[237] Ms. Flear recommended that Roxanne continue to attend counselling sessions once or twice a week for
an indeterminate number of years. Ms. Flear estimated that the costs associated with the sessions would be
$6,000 per year.

[238] Ms. Flear acknowledged that she treats, but does not diagnose PTSD. She was not qualified to give
opinion evidence as to future care needs. I therefore give little weight to her opinion as to Roxanne’s long-term
treatment needs.

[239] In addition, I have already found that the substance of the sessions with Ms. Flear is not restricted to the
PTSD with which Roxanne was diagnosed following August 2008.

[240] I accept Ms. Flear’s evidence that the sessions are of benefit to Roxanne and that she would benefit from
continuing the sessions. I assess the general pecuniary damages for future counselling sessions in the amount of
$20,000.

▪ Summary - Expenses
[241] The damages for out-of-pocket expenses and future expenses to which Roxanne is entitled total
$37,226.84 ($1,538.13 + $3,500 + 12,188.71 + $20,000).

d) Breach of Charter Rights

[242] Roxanne claims damages pursuant to section 24(1) of the Charter. There is a four-step process to
determine whether damages are payable as a result of a Charter breach (Vancouver (City) v. Ward, 2010 SCC 27
(CanLII), [2010] 2 S.C.R. 28, at para. 4). The first step is to establish that a Charter right has been breached.
That step was addressed above under Issue No. 4. Roxanne has established that her sections 7, 8, and 9 Charter
rights were breached.

[243] The second step is for the claimant to demonstrate that damages are a just and appropriate remedy. The
claimant must show that damages are “functionally required to fulfill one or more of the objects of
compensation, vindication of the right, or deterrence of future Charter breaches” (Ward, at para. 32).
Throughout the afternoon and evening of August 23, 2008, the conduct of a number of the officers demonstrated
a lack of concern for Roxanne’s Charter rights. I find that their collective lack of concern warrants
compensation and “engages the object of vindication of the right[s] and deterrence of future breaches” (Ward, at
para. 66.).

[244] At the third step, it is open to the responding party to establish that there are countervailing factors that
render an award of damages under section 24(1) of the Charter inappropriate or unjust. Those factors include
the existence of alternative remedies and the potential interference an award of damages would have in good
governance (Ward, at para. 33). In the matter before me, I need only consider the existence of alternative
remedies.

[245] The award of damages to Roxanne under a number of other headings does not preclude an award of
damages for breach of her Charter rights. I am mindful, however, that by virtue of the other damages awarded
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Roxanne is to a large extent put in the same position she would have been had her Charter rights not been
infringed.

[246] The fourth step is the assessment of the quantum of damages to be awarded. Of the most concern to me
in determining the quantum of damages, if any, is the conduct of the officers in leaving Roxanne naked in a
holding cell for over two hours. I find that the indignity and humiliation experienced by Roxanne in that setting
warrants compensation. My intention in awarding damages under this heading is that of deterrence of future
Charter breaches of this kind.

[247] Each of Marcil, Desjourdy, Morris, and Cybulski was involved in the removal of Roxanne’s clothes.
They each played a different role in the event. Some of the officers are more responsible than others for the alert
being called, for the decision to remove Roxanne’s clothes, and for Roxanne being left naked in her cell for more
than two hours. I do not, however, differentiate between the four officers in terms of liability for the damages
awarded.

[248] Roxanne is entitled to $7,500 in damages for breach of her section 7 Charter right to security of the
person as it relates to being rendered naked and left in that state in her cell for a period of more than two hours.

e) Punitive Damages
[249] Punitive damages are awarded very much as the exception and not the rule (Whiten v. Pilot Insurance
Co., 2002 SCC 18 (CanLII), [2002] 1 S.C.R. 595). The guiding principles with respect to punitive damages
include the following:

• Punitive damages are awarded only if there has been high-handed, malicious, arbitrary, or highly
reprehensible misconduct that departs to a marked degree from ordinary standards of decent
behaviour;

• Punitive damages are awarded with the intent of punishment of a defendant; not as compensatory
damages for a plaintiff;

• One of the goals in awarding punitive damages is to deter others from acting in the same manner as
the individual against whom punitive damages are awarded;

• Another goal is to express the community’s denunciation of the behaviour giving rise to the award;
and

• Punitive damages are only awarded when the compensatory damages awarded are insufficient to
accomplish the objectives of punishment, deterrence, and denunciation.

[250] Compensatory damages for unlawful arrest, negligent investigation and excessive use of force and
damages for a breach of Charter rights have been awarded to Roxanne. The damages awarded under sections
(a) through (d) above provide reasonable compensation to Roxanne for the injuries and losses she has suffered.
In addition, the damages awarded pursuant to the Charter address the object of deterrence.

[251] I find that conduct of the officers who left Roxanne naked in the holding cell for over two hours was
high-handed and a marked departure from the standards of ordinary behaviour.

[252] However, I find that the totality of the damages otherwise awarded is sufficient to fulfil the functions of
punishment, deterrence, and denunciation in the circumstances of this case. I therefore make no award of
punitive damages.

Disposition
[253] There is no finding of liability directly as against the Ottawa Police Services Board (the “Board”). There
are, however, two bases upon which the Board is liable to Roxanne for the damages awarded. First, as the
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employer of the individual officers found liable to Roxanne, the Board is vicariously liable for the conduct of its
officers. Second, pursuant to section 50 of the Police Services Act, R.S.O. 1990, c. P.15, the Board is liable for
the tortious conduct of its officers.

[254] In summary, the defendants are liable to Roxanne as follows:

1. Constable Adlard (false arrest, false imprisonment, excessive use of force, and negligent
investigation), Special Constable Marcil (excessive use of force), and the Ottawa Police Services
Board are jointly and severally liable to Roxanne Carr for the following damages:

a) General damages in the amount of $90,000.00;

b) Damages for loss of earning capacity in the amount of $120,000.00; and

c) Damages for out-of-pocket expenses and the cost of future counselling sessions in the amount of
$37,226.84.

2. Constable Cybulski, Special Constables Morris and Marcil, Sergeant Desjourdy, and the Ottawa
Police Services Board are jointly and severally liable to Roxanne Carr for damages in the amount of
$7,500.00 pursuant to section 24(1) of the Charter of Rights and Freedoms.

[255] The balance of the claims against the defendants are dismissed.

Pre-Judgment Interest and Costs

[256] The issues of pre-judgment interest and costs remain to be addressed. If the parties are unable, on or
before August 31, 2017, to resolve one or both of those issues, counsel shall:

a) Make arrangements through the Trial Co-ordinator’s Office to appear before me to make submissions
with respect to any unresolved issue; and

b) Prior to that appearance, deliver written materials, in accordance with the Rules of Civil Procedure,
in advance of such appearance.

____________________________________
Madam Justice Sylvia Corthorn

Released: July 14, 2017

CITATION: Carr v. Ottawa Police Services

Board, 2017 ONSC 4331 ONTARIO
COURT FILE NO.: 10-49203
DATE: 2017/07/14 SUPERIOR COURT OF JUSTICE

B E T W E E N:

Roxanne Carr

Plaintiff

– and –
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Ottawa Police Service Constable Cindy Cybulski, Otta
wa Police Service Constable Michael Adlard, Ottawa P
olice Service Constable Shawn Virgin, Ottawa Police Se
rvice Constable Darren Shore, Ottawa Police Service D
etective Constable David West, Ottawa Police Service C
onstable M. Morris, Ottawa Police Service Constable Ri
chard Marcil, Ottawa Police Sergeant Steven Desjourdy
and the Ottawa Police Services Board

Defendants

REASONS FOR JUDGMENT

Madam Justice Sylvia Corthorn

Released: July 14, 2017

Federation of Law Societies of Canada

By for the law societies members of the

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 300

Elmardy v Toronto Police Services Board

2017 ONSC 2074 (CanLII)

1/6/2019 CanLII - 2017 ONSC 2074 (CanLII) 301

Elmardy v Toronto Police Services Board, 2017 ONSC 2074 (CanLII)

Date: 2017-04-04
File 290/15
number:
Citation: Elmardy v Toronto Police Services Board, 2017 ONSC 2074 (CanLII), <http://canlii.ca/t/h314g>, retrieved on
2019-01-06

CITATION: Elmardy v. Toronto Police Services Board, 2017 ONSC 2074

DIVISIONAL COURT FILE NO.: 290/15
DATE: 20170404

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, NORDHEIMER AND SPIES JJ.

BETWEEN: )
)

MUTAZ ELMARDY ) Andrew J. MacDonald, for the Appellant

))
Appellant ) )
))
– and – ) ))

TORONTO POLICE SERVICES BOARD David A. Gourlay, for the Respondents

and POLICE CONSTABLE PAK

Respondents
)
)
) HEARD at Toronto: February 14, 2017

H. SACHS J.

Overview

[1] On a winter’s evening in Toronto, the Appellant, a black man, was walking on a downtown street when
he was stopped by two Toronto Police Service officers. An interaction ensued during which the Respondent
Constable Pak punched the Appellant in the face twice, emptied the Appellant’s pockets without his consent and
left the Appellant lying on his handcuffed hands in the cold for 20 to 25 minutes.

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[2] In a decision dated May 7, 2015, Myers J. found that the officers had no reasonable suspicion of
criminal conduct when they initiated contact with the Appellant, but declined to find that the conduct of the
officers was racially motivated. He did find that Constable Pak had committed a battery on the Appellant; that
the Appellant’s detention was unlawful and a breach of his rights under s. 9 of the Canadian Charter of Rights
and Freedoms; that the search of the Appellant’s pockets was a breach of his rights under s. 8 of the Charter;
and that the Appellant’s rights under s. 10(a) and (b) of the Charter were violated when he was not told why he
was detained or given his rights to counsel upon being detained.

[3] The trial judge awarded the Appellant $5000 in damages in relation to the battery; $2000 in relation to
the s. 9 Charter breach; $1000 for the s. 8 breach; and $1000 for the s. 10 breaches. He also awarded punitive
damages in the amount of $18,000, twice the amount of the aggregate award under the other heads of damages,
and granted declaratory relief. Finally, he awarded the Appellant his costs fixed on a substantial indemnity basis.

[4] This is an appeal of the trial judge’s failure to make a finding that the Appellant was a victim of racial
profiling, his failure to find that the Appellant’s rights under s. 7, 12 and 15 of the Charter were breached and of
his damages award. On this appeal the Appellant submits that the trial judge committed a palpable and
overriding error when he found that there was no evidence that the conduct of the officers was racially
motivated. This in turn led the trial judge to err in his damages assessments as he failed to give effect to the need
to deter and punish police officers who engage in violent, abusive and unconstitutional conduct based on racial
profiling.

[5] For the reasons that follow I would allow the appeal and increase the award of damages for the
constitutional violations to $50,000. (According to the Supreme Court of Canada these damages can only be
awarded against the Respondent Toronto Police Services Board.) I would also award punitive damages against
both Respondents in the amount of $25,000. I would not increase the damages in relation to the battery.

The Racial Profiling Issue

Factual Background

[6] On January 15, 2011, Constable Pak was driving a police cruiser, accompanied by Constable Poole,
when the officers saw the Appellant walking in the opposite direction and on the opposite side of the street.
Constable Pak immediately observed that the Appellant was a black male.

[7] Constable Pak testified that immediately after seeing the Appellant (who was walking alone), he had a
hunch that he may be violating bail terms. As the officer described it, a person on bail would usually have to be
accompanied by their surety and would not be walking alone. Constable Pak noted that the Appellant looked at
him as his police cruiser drove by.

[8] Constable Poole also saw the Appellant look at the police cruiser as it passed. She had an immediate
concern that the Appellant might be carrying a weapon as he had his hands in his pockets.

[9] The officers did a U-turn and pulled up alongside the Appellant. They asked him questions. According
to the trial judge, the Appellant was hostile to the police. The Appellant had his hands in his pockets as it was
cold outside and he was not wearing gloves.

[10] The officers got out of their car and asked the Appellant to take his hands out of his pockets. When he
declined to do so they subdued him and, in the course of doing so, Constable Pak punched the Appellant twice in
the face. The Appellant was knocked to the ground, handcuffed to his back and he was left lying on wooden
decking covered with ice, with his hands exposed and against the ice, for 20 to 25 minutes. All of his pockets
were searched and emptied of belongings, and Constable Pak searched the contents of his wallet. During the
interaction the police asked the Appellant where he was from.

[11] The police gave the Appellant no reason for his detention and he was not advised of his right to counsel.
During the incident, the police filled out a card, known as a 208 card or field information report, for the
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Appellant. Part of the information to be included on the card was the Appellant’s skin colour, which was filled in
as “black,” and his birth place, which was filled in as “Sudan.” The police did not explain to the Appellant that
he was being “carded.”

The Trial Judge’s Finding with Respect to Racial Profiling

[12] The trial judge’s finding with respect to racial profiling appears at para. 4 of his decision and reads as
follows:

I also do not make any finding that Mr. Elmardy was discriminated against on the basis of his
race or that he was the victim of “racial profiling” as alleged. The police were entitled to try to
chat with Mr. Elmardy. While it is tempting to try to ascribe motives, there was no evidence that
the decision to stop him was based on his race. Mr. Elmardy did not prove on a balance of
probabilities that the actions of Constable Pak were racially motivated. Nor was there a basis in
the evidence to draw that inference.

Analysis

[13] The trial judge found that there was no basis in the evidence to draw the inference that the officers’
conduct towards the Appellant was motivated by race. While there may have been no direct evidence of racial
profiling, there was circumstantial evidence from which one could draw the inference that it was more probable
than not that the officers’ conduct towards the Appellant was motivated by the fact that he was black. The
failure of the trial judge to consider this indirect evidence constitutes a palpable and overriding error.

[14] In R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161, 173, C.C.C. (3d) 23 (C.A.), at
para. 7 (quoting from a definition adopted in an earlier case, R. v. Richards (1999), 1999 CanLII 1602 (ON CA),
26 C.R. (5th) 286, 120 O.A.C. 344 (C.A.), at para. 295), the Ontario Court of Appeal describes racial profiling
as follows:

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to the
phenomenon whereby certain criminal activity is attributed to an identified group in society on
the basis of race or colour resulting in the targeting of individual members of that group. In this
context, race is illegitimately used as a proxy for the criminality or general criminal propensity of
an entire racial group.

[15] The Court in Brown also notes, at paras. 8-9, that the attitudes underlying racial profiling can be
consciously or unconsciously held and that social science research establishes that racialized characteristics of
black people provoke police suspicion in Toronto.

[16] The Court goes on to find that racial profiling can rarely be proven by direct evidence, as “[t]his would
involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his
or her discretion…. Accordingly, if racial profiling is to be proven it must be done by inference drawn from the
circumstantial evidence” (Brown, at para. 44).

[17] Further, “where the evidence shows that the circumstances relating to a detention correspond to the
phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why
he or she singled out the accused for attention, the record is then capable of supporting a finding that the stop
was based on racial profiling” (Brown, at para. 45).

[18] In this case, the trial judge found that there was no reasonable basis for the police to suspect the
Appellant of criminal behaviour. As put by him at para. 72 of his decision, “[t]here was no reason for Constable
Pak to have a ‘hunch’ about bail or sentencing conditions and none for Constable Poole to have a concern about
weapons.”

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[19] The only reasonable inference to be drawn from the fact that both officers, without any reasonable basis,
suspected the Appellant of criminal behaviour, is that their views of the Appellant were coloured by the fact that
he was black and by their unconscious or conscious beliefs that black men have a propensity for criminal
behaviour. This is the essence of racial profiling.

[20] In this case, the officers’ unreasonable beliefs about the Appellant caused them to assault the Appellant,
unreasonably search him and forcibly restrain him. In other words, instead of presuming his innocence, they
assumed and acted as if he were guilty and dangerous. He must be violating his bail and he must be carrying a
gun. These assumptions, for which there is no explanation other than the colour of the Appellant’s skin, caused
them to blatantly and aggressively violate the Appellant’s constitutional rights.

[21] The trial judge found that the officers’ real motivation for stopping the Appellant was so that they could
“card” him by filling in information on a 208 card. This begs the question of why the officers would single the
Appellant out for “carding.”

[22] However, the trial judge also found that the officers lied about why they stopped the Appellant and
“backfilled” a purpose after the fact. Lying about the real reason for a stop is another basis for drawing the
inference that what motivated the stop was the Appellant’s race and colour. As noted in Brown, at para. 45, the
inference that a police officer is lying about why she or he singled out an individual for attention is a
circumstance that is “capable of supporting a finding that the stop was based on racial profiling.” Such a finding
becomes even more compelling when, as here, the “lies” that the police chose to tell about why they stopped the
individual are based on racial stereotypes, such as the belief that black men are more likely to be on bail and
more likely to be carrying weapons.

[23] Contrary to the finding of the trial judge that there is no evidence from which one can draw the inference
that the conduct of the police officers was racially motivated, there is no other reasonable inference that is
available from all of the evidence. The explanation the officers gave for their behaviour was both rejected by the
trial judge and infected with racial stereotypes. Given this, there can be no issue that the Appellant’s right to
equal protection and equal benefit of the law without discrimination based on race under s. 15 of the Charter
was also violated.

Damages

Damages for the Battery

[24] With respect to general damages for the battery committed upon the Appellant, the trial judge found as
follows:

[42] It is clear that Mr. Elmardy’s physical injuries were very minor. He was unemployed at the
time so he did not miss any work. He has no out-of-pocket expenditures. His bruises all healed
within several days to a week. His knees healed although he now complains of knee pain he
concedes that he cannot ascribe cause for that pain to the incident in question.

[43] Mr. Elmardy raises emotional concerns regarding his feelings of dignity and his current
nervousness or suspicion in dealing with the police in light of the events to which he attests. But
there is no medical report supporting significant psychological injury and no specific damages are
sought on that basis.

[110] Mr. Elmardy seeks $75,000 in general damages in relation to the battery committed upon
him by Constable Pak. The battery consisted of two punches in the face and some further minor
contact that caused little or no injury. Mr. Elmardy’s cheek was swollen for a few days. His lip cut
healed quickly. His knees were better within a week. General damages are to compensate a
plaintiff for the injuries suffered. This includes emotional losses such as the plaintiff’s claim to
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have been humiliated and to now distrust police. Considering tort cases dealing with similar
injuries, in my view, an award of $5,000 for general damages for pain and suffering is appropriate
although it may well be at the high end of the range for such injuries.

[25] The Appellant cited two cases to support his submission that the trial judge’s general damages award did
not fall within the range for similar types of injuries: Ernst v. Quinonez, [2003] O.T.C. 847, [2003] O.J. No. 3781
(Sup. Ct.) and Evans v. Sproule, [2008] O.J. No. 4518, 2008 CarswellOnt 8753 (Sup. Ct.). In the former, the
Court awarded general damages of $25,000 for police battery and in the latter the award was $100,000.
However, in both cases the injuries and consequences were far more serious than the trial judge found existed in
this case.

[26] In contrast, the Respondent cited a number of other cases in which courts (in most cases, provisionally)
made damage awards for similar types of alleged battery by the police in amounts not exceeding $5000 (see
Wilsdon v. Durham Regional Police, 2011 ONSC 3419 (CanLII), [2011] O.J. No. 6289; Leclair v. Ottawa
(Police Services Board), 2012 ONSC 1729 (CanLII), [2012] O.J. No. 1233; and Sherman v. Renwick, [2001]
O.T.C. 135, [2001] O.J. No. 632 (Sup. Ct.)).

[27] Given the findings of the trial judge about the nature and extent of the Appellant’s injuries and the case
law, it cannot be said that the trial judge’s award of general damages for battery falls outside of the appropriate
range for such damages.

Charter Damages

[28] In fixing compensation for the Charter breaches, the trial judge focused on the general damages that the
Appellant suffered by virtue of those breaches and found that “vindication and deterrence are best dealt with by
declaratory relief and punitive damages.” Thus, he awarded $2000 for the s. 9 breach, which resulted from a
detention lasting approximately 30 minutes; $1000 for the s. 8 breach, which resulted from an illegal search
where the Applicant did not suffer any destruction of his property; and $1000 for the s. 10 breaches.

[29] Vancouver (City) v. Ward, 2010 SCC 27 (CanLII), [2010] 2 S.C.R. 28 is the leading case concerning the
awarding of damages for Charter breaches. That case makes several points of interest about Charter damages:

(a) Damages for breach of a person’s Charter rights are to be distinguished from private law
damages. They are to be distinguished from a tort claim for which a state actor may be
vicariously liable. Rather they are to be regarded as a “‘public law action directly against the state
for which the state is primarily liable’. … The nature of the remedy is to require the state (or
society writ large) to compensate an individual for breaches of the individual’s constitutional
rights. An action for public law damages – including constitutional damages – lies against the
state and not against individual actors. Actions against individual actors should be pursued in
accordance with existing causes of action” (at para. 22, in part quoting Dunlea v. Attorney-
General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136, at para. 81).

(b) There are three purposes that Charter damages may serve: compensation, vindication and
deterrence.

(c) In the public law context, when it comes to compensation, the courts have recognized that
personal losses that may be compensated include “harm to the claimant’s intangible interests”
which includes “distress, humiliation, embarrassment, and anxiety”. This harm will often merge
with psychological harm, but “a resilient claimant whose intangible interests are harmed should
not be precluded from recovering damages simply because she cannot prove a substantial
psychological injury” (at para. 27).

(d) “Vindication focuses on the harm the infringement causes society…. [V]iolations of
constitutionally protected rights harm not only their particular victims, but society as a whole….
While one may speak of vindication as underlining the seriousness of the harm done to the
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claimant, vindication as an object of constitutional damages focuses on the harm the Charter
breach causes to the state and to society” (at para. 28).

(e) “Deterrence seeks to regulate government behaviour, generally, in order to achieve compliance
with the Constitution…. [D]eterrence as an object of Charter damages is not aimed at deterring
the specific wrongdoer, but rather at influencing government behaviour in order to secure state
compliance with the Charter in the future” (at para. 29).

(f) Damages for Charter breaches where the conduct is serious “promote good governance.
Compliance with Charter standards is a foundational principle of good governance” (at para. 38).

(g) The quantum of Charter damages should not be unduly high (partly in recognition of the fact
that it is society as a whole that is asked to pay), but the award “must represent a meaningful
response to the seriousness of the breach and the objectives of compensation, upholding Charter
values, and deterring future breaches” (at para. 54).

[30] The trial judge’s reasons do not contain a discussion of these principles. Most importantly, in deciding to
deal with the objectives of deterrence and vindication through punitive damages, the trial judge failed to
sufficiently recognize that Charter damages are awarded against the state, not the individual tortfeasor for whose
actions the state may or may not be vicariously liable. He also failed to recognize the important public objectives
of Charter damages, which are different from the objectives of punitive damages that may be awarded against a
private individual. As Ward makes clear, deterrence and vindication in the public law context are different from
deterrence and vindication in the private law context. It is the state, not the individual, that must be deterred; and
it is society’s, not the claimant’s, rights that must be vindicated.

[31] While this reason would be a sufficient basis to set aside the trial judge’s award of Charter damages, the
fact that the trial judge failed to recognize that the Appellant’s right to be free from discrimination under s. 15 of
the Charter was also violated provides an additional basis for doing so.

[32] Under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a court to which an appeal is taken
may, unless otherwise provided, “make any order or decision that ought to or could have been made by the court
or tribunal appealed from” and/or “make any other order or decision that is considered just.” Case law has
recognized that where an appeal court sets aside an award of damages, if it is in the interests of justice for the
court to reassess the amount of damages based on the record before it, the court should do so rather than sending
the issue back to the trial judge (see Pirani v. Esmail, 2014 ONCA 145 (CanLII), 320 O.A.C. 356, at para. 89).
In this case, it is in the interests of justice that this Court set the quantum of damages based on the findings of the
trial judge and the finding of this Court that the Appellant was the victim of racial profiling.

[33] In Ward, an award of $5000 in Charter damages was upheld by the Supreme Court of Canada. In that
case the claimant had been lawfully arrested, but he was then the subject of an unlawful strip search. However,
the Court noted that the search was relatively brief and not extremely disrespectful in the sense that while the
claimant was stripped to his underwear, he was never touched and did not suffer any resulting physical or
psychological injury. The Court also found that the conduct of the officers responsible for the search was not
intentional in the sense of being malicious, high-handed or oppressive. Thus, the Court decided that the
objectives of deterrence and vindication did not require an award of substantial damages against the state.

[34] This case is very different from the situation in Ward. The driving force behind the Charter breaches –
racial profiling – is a phenomenon that has been recognized as a problem in our police services for some time.
The Court of Appeal’s decision in Brown was released in 2003 and the conduct giving rise to this proceeding
occurred in 2011, eight years later. Racial profiling has a serious impact on the credibility and effectiveness of
our police services. It has led to distrust and injustice. It must stop.

[35] Unlike in Ward, the conduct of Constable Pak was both high-handed and oppressive. The Appellant was
not only touched; he was punched in the face twice. The interaction lasted half an hour, much of which time the
Appellant spent on the ground, handcuffed, with his bare hands exposed to ice. The Appellant was an innocent
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man who had fled his country looking for a society in which his rights would be respected. Instead of finding the
respect to which he is entitled, he was subjected to humiliating, violent and oppressive behaviour from one of
this city’s police officers, all because of the colour of his skin. Further, when questioned about their behaviour
the police officers were found to have lied to the Court, conduct that can seriously undermine the administration
of justice.

[36] For these reasons, there is a need for an award of damages that is significant enough to vindicate
society’s interest in having a police service comprised of officers who do not brutalize its citizens because of the
colour of their skin and that sends the message to that service that this conduct must stop. The courts and others
have already made statements about the serious, wrongful nature of this type of conduct. Yet it continues to
occur. Declaratory relief is just another such statement. More is required.

[37] For these reasons I would award the Appellant $50,000 by way of compensation for the Charter
breaches. In accordance with Ward, this amount is awarded against the Toronto Police Services Board only. It is
an amount that is not so large as to make it inappropriate for the government to pay, but large enough to send a
message about the seriousness of the conduct at issue.

Punitive Damages

[38] The trial judge awarded the Appellant $18,000 by way of punitive damages. He arrived at this number
by doubling the aggregate award he had given for the other heads of damages, thereby tripling the Appellant’s
recovery. In view of the fact that I have varied the award for Charter damages, fixing punitive damages based on
the multiple used by the trial judge would not be appropriate.

[39] In this case, punitive damages are necessary as against Constable Pak to punish and deter him for his
misconduct. The amount awarded should reflect the seriousness of that misconduct, but not be so large as to
remove any realistic possibility that a police officer such as Constable Pak would be able to pay those damages.
In my view, an award of $25,000 will accomplish these objectives. I appreciate that by reason of s. 50(1) of the
Police Services Act, R.S.O. 1990, c. P.15, the Toronto Police Services Board is also liable to pay this damage
award. However, that fact is not determinative of the exercise I must perform in assessing damages, which is to
determine the amount that the person who is directly responsible for those damages should pay.

Conclusion

[40] For these reasons, I would allow the appeal, set aside the trial judge’s award for Charter and punitive
damages and award $50,000 by way of Charter damages as against the Toronto Police Services Board and
$25,000 by way of punitive damages as against both Respondents. These damages are in addition to the amount
of $5000 that the trial judge awarded for the battery. I would not vary the costs order below (nor was there any
request that we do so).

[41] The Appellant is entitled to his partial indemnity costs for this appeal, which I fix in the amount of
$14,684.35 for fees (a similar amount to that claimed by the Respondents in their costs outline) and $3139.87 for
disbursements, plus applicable H.S.T., for a total of $20,141.37.

Sachs J.

I agree.

Nordheimer J.

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I agree.

Spies J.

Released:

CITATION: Elmardy v. Toronto Police Services Board, 2017 ONSC 2074

DIVISIONAL COURT FILE NO.: 290/15
DATE: 20170404

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, NORDHEIMER AND SPIES JJ.

BETWEEN:

MUTAZ ELMARDY

Appellant

– and –

TORONTO POLICE SERVICES BOARD and POLICE

CONSTABLE PAK

Respondents

REASONS FOR JUDGMENT

Released: April 4, 2017

Federation of Law Societies of Canada

By for the law societies members of the

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 310

Ogiamien v Ontario

2016 ONSC 3080 (CanLII)

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Ogiamien v Ontario, 2016 ONSC 3080 (CanLII)

Date: 2016-05-10
File number: 109/15
Other citations:132 OR (3d) 176; [2016] OJ No 2444 (QL)
Citation: Ogiamien v Ontario, 2016 ONSC 3080 (CanLII), <http://canlii.ca/t/gr8dh>, retrieved on 2019-01-06

CITATION: Ogiamien v. Ontario, 2016 ONSC 3080

COURT FILE NO.: 109/15
DATE: 2016-05-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:
JAMIL OGIAMIEN and HUY NGUYEN
Applicants ) )
– and –
HER MAJESTY THE QUEEN in right of Ont )
ario, represented by the Ministry of Communit )
y Safety and Correctional Services (‘MCSCS’) )
and the SUPERINTENDENT OF MAPLEHU )
RST CORRECTIONAL COMPLEX (‘MCC’) )
and THE ATTORNEY GENERAL OF CANA )
DA
Respondents )
)
)
)
)) Jamil Ogiamien, Self-represented
)) Huy Nguyen, Self-represented
))
) Barbara Jackman, Amicus Curiae
Brian G. Whitehead and Hera Evans, for the Mi
nistry of Community Safety and Correctional S
ervices and the Superintendent of Maplehurst C
orrectional Complex
) Daniel Guttman and Savitri Gordian for the Att
) orney General of Ontario
Ian Hicks, Sharon Stewart Guthrie, Nicholas D
odokin and Sybil Thompson for the Attorney G
eneral of Canada

)
)
) HEARD: July 31, August 7, September 18, Oc
) tober 5 & 8, November 23, 2015, January 7 &
) 19, February 8, 17 & 18, and April 1, 2016
)

REASONS FOR JUDGMENT

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GRAY J.

[1] Messrs. Ogiamien and Nguyen allege violations of their rights under the Canadian Charter of Rights
and Freedoms, and request remedies. They allege that the violations arise from the conditions of their
incarceration at Maplehurst Correctional Complex in Ontario, and specifically arise out of “lockdowns” that
occurred with some frequency.

[2] For the reasons that follow, I have determined that their rights under the Charter were violated, and I
have determined that they are entitled to damages as a remedy.

Procedural History

[3] This matter originated as an application for a writ of habeas corpus, and first came before Miller J. on
July 31, 2015. No one appeared to respond to the application, and Miller J. determined that it had not been
properly served. Ontario Public Service Employees Union (OPSEU) had been named as a party as well as the
government parties.

[4] After the matter was served, it then came before Miller J. again on August 7, 2015. At that time she
adjourned it again to September 18, 2015. On that date, Conlan J. dismissed the application as against OPSEU,
and adjourned the matter to October 5, 2015, and on that date Coats J. adjourned it to October 8, 2015 when it
came before me. I then became seized of the matter.

[5] On October 8, 2015, I ordered the production of certain material, and I appointed amicus curiae for
the assistance of the court. Subsequently, Ms. Jackman was formally appointed as amicus and she thereafter
attended the hearing to provide assistance to the court.

[6] On November 23, 2015, I made it clear that Messrs. Ogiamien and Nguyen, not being solicitors, had
no right to represent the other people identified in their application as being affected by the lockdowns at
Maplehurst. This case had not been certified as a class proceeding, and in the final analysis it was simply an
application brought on their own behalf.

[7] On the same date, I ordered, on consent, that that the matter proceed by way of affidavits to be served
and filed by the applicants, with the assistance of Ms. Jackman, and responding affidavits to be served and filed
by the respondents. I ordered that cross-examinations on the affidavits take place before me, and that legal
arguments be filed in writing.

[8] I also determined that, in view of the allegations made by the applicants in their habeas corpus
application, I would regard the application as also having been brought under s.24(1) of the Charter, alleging
potential violations of sections 7, 9 and 12 of the Charter. I requested Ms. Jackman, as amicus, to serve and file
the necessary notice under s. 109(1) of the Courts of Justice Act, and she did so.

[9] As the Attorney General of Canada was entitled to do, counsel for the Attorney General of Canada
appeared on January 7, 2016 in response to the notice given under s.109(1) of the Courts of Justice Act. On that
date, Ms. Jackman requested that the Attorney General of Canada be added as a party, since Mr. Ogiamien was
held in custody at Maplehurst as an immigration detainee, pursuant to an agreement between the Government of
Canada and the Government of Ontario, and that it was arguable that the Government of Canada should be
responsible for any Charter violations and any remedy that may be ordered if any violations were to be found.
After hearing submissions, I ordered that the Attorney General of Canada be added as a party, and thereafter
counsel for the Attorney General of Canada appeared, filed material, and made submissions.

[10] With some extensions of time for filing material and conducting cross-examinations, the matter was
finally argued on April 1, 2016.

[11] I note that a separate habeas corpus proceeding is underway to challenge the legality of Mr.
Ogiamien’s detention. That proceeding is before Justice Coats. The proceedings are entirely separate, and
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nothing determined in this case is intended to influence the proceedings before Justice Coats.

Background

[12] Maplehurst Correctional Complex is a correctional institution operated by the Ontario Ministry of
Community Safety and Correctional Services. It is a maximum security facility that provides for custody of
adult males. Maplehurst typically houses between 1,000 and 1,100 inmates. It provides secure custody of
inmates who are remanded; who have violated parole; who are serving sentences of up to two years less a day;
and those subject to immigration holds.

[13] Maplehurst consists of eight living units and an infirmary. Units 1, 8, 9, 10 and 11 are remand units
while Units 5, 6 and 7 house inmates who have been sentenced and classified as lower risk. Units 5, 6 and 7 are
dormitory-style units with communal washrooms and shower facilities. Because sentenced inmates housed in
Units 5, 6 and 7 have been classified as lower-risk and do not have washroom facilities in their sleeping quarters,
those units cannot be locked down so as to keep offenders locked in their individual cells.

[14] Units 2, 3 and 4 comprise the Vanier Centre for Women which is a separate institution housing female
inmates.

[15] Due to its status as a maximum security facility, restrictions are continuously imposed on the
movement and liberty of inmates at Maplehurst through physical barriers, close staff supervision, and more
limited access to the community.

[16] Each remand living unit in the general population (Units 8, 9, 10 and 11) is divided into six wings – A,
B, C, D, E and F. Each unit houses 192 inmates in cellular accommodations built to house two inmates per cell.
Each wing houses approximately 32 inmates in 18 cells, two inmates per cell. Each wing in a unit has a day
room area where inmates may socialize. Remanded inmates eat their meals in their cells and not in the day
room.

[17] The regular daily schedule for inmates, such as the applicants, who are housed in general population
in remand living units (Unit 8, 9, 10 and 11) is as follows:

a) 0800 – 0930 – Inmates locked down in cells for meal service – breakfast;
b) 0930 – 1130 – day room access;
c) 1130 – 1330 – inmates locked down in cells for meal service – lunch;
d) 1330 – 1530 – day room access;
e) 1530 – 1730 – inmates locked down in cells for meal service – supper;
f) 1730 – 1930 – day room access;
g) 1930 – 0800 – inmates locked down in cells overnight.

[18] Thus, inmates in general population are out of their cells and in the day room for up to six hours a
day. When inmates are in their cells most, but not all, can see the television which is mounted high up on a wall
in the day room.

[19] When inmates have access to the day room, they are able to watch television, read newspapers or
other reading material, and make phone calls. Inmates are typically offered access to the exercise yard for 20 to
30 minutes each day. Inmates also have access to a variety of programs, including showers, spiritual
programming, and access to program rooms. When there is no lockdown, lawyer and professional visits can
occur three times during a normal day, coinciding with the same time inmates are in the day room. When there
is no lockdown, healthcare, chaplaincy, volunteers and other program visits will occur three times during a
normal day, during times approximating seven hours per day.

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[20] When there is no lockdown, public visits will occur during three periods during a normal day, again
roughly coinciding with the times inmates are in the dayroom.

[21] Various programs are available at Maplehurst for sentenced and remand inmates, and immigration
detainees. They include religious programs for a variety of religions; anti-criminal thinking; Alcoholics
Anonymous; anger management; addiction awareness; Life’s Healing Choices; continuing education; John
Howard Society; release from custody; addiction programs; orientation; education sessions; library programs;
food production; laundry; Salvation Army; peer mentoring; tutoring; and individual counselling and support.

[22] Each unit has three program rooms available for individual and group programs and professional visits
(including visits with lawyers and time to review disclosure materials relating to court matters). There is also a
room for chaplaincy and other programs.

[23] Inmate cells in Units 8, 9, 10 and 11 at Maplehurst are 15 feet long, 7.5 feet wide and 9 feet high. A
typical cell has a toilet and sink, bunk beds, a table and stool and a window for natural light. The door to the cell
has a window and a hatch that can be opened for speaking with inmates and passing trays of food and clothing.
Nursing rounds typically occur up to four times a day and medications are dispensed through the grill of the
dayroom when inmates are not locked down in their cells.

[24] In the day room there are three phones for placing collect calls, two showers areas and a number of
tables and chairs for inmates to socialize. There is also a chin-up bar for exercise. Each unit will typically have
a nurse’s office and doctor’s office and nursing is on-site 24 hours a day. If there are medical concerns, inmates
can be taken to hospital and in an emergency, 911 will be called.

[25] Jamil Ogiamien was remanded into custody at Maplehurst on April 26, 2013. There are no criminal
charges under which he is being held. He is being held on a Canada Border Services Agency order for detention
dated March 24, 2014. He is detained at Maplehurst pursuant to an agreement between the Governments of
Canada and Ontario to house certain immigration detainees in provincial correctional institutions. He is one of
only 13 inmates at Maplehurst who are being detained solely for immigration purposes.

[26] Mr. Ogiamien has been housed intermittently at North Central Correctional Centre in late 2014 and
early 2015. Since April 8, 2015 he has remained at Maplehurst.

[27] Mr. Ogiamien is housed in the general population where he has a cellmate and has day room
privileges. As a general population inmate he has the same rights as any other inmate at Maplehurst. Since
May, 2015 he has been primarily housed in Unit 11, C wing.

[28] Huy Nguyen was remanded into custody at Maplehurst on May 8, 2015 on various firearms-related
charges. He has not yet been tried.

[29] Mr. Nguyen is housed in the general population where he has a cellmate and has day room privileges.
As a general population inmate he has the same rights as any other inmate at Maplehurst. Since his admission,
he has been primarily housed in Unit 11. He is currently housed in Unit 10, C wing.

[30] Both Mr. Ogiamien and Mr. Nguyen have been placed in segregation on occasion for disciplinary
reasons.

[31] The main affidavit filed by the Government of Ontario and Maplehurst was that of Chuck
Marchegiano, who is the Deputy Superintendent of Administration and Staff Relations at Maplehurst. Mr.
Marchegiano deposes that a lockdown refers to a period of time when inmates who are housed in general
population remand living units and who would have typically have access to the day room and inmate
programming, instead remain locked in their cells. Maplehurst has standing orders which define and spell out
reporting requirements, priorities, and potential measures relating to lockdowns. A “full” lockdown refers to
locking down units 1, 8, 9, 10 and 11 for all or part of a day. A “partial” lockdown can refer to one or more of
those units (or one or more wings in a unit) being locked down for all or part of a day.
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[32] Mr. Marchegiano deposes that lockdowns are sometimes necessary to ensure the security of the
institution and the safety of staff and inmates. In addition, the institution may use lockdowns to facilitate
searches. He deposes that each situation is monitored to minimize the disruption to the inmates where possible
and to assess when units can be returned to a non-lockdown status.

[33] In addition to lockdowns for safety, security and to facilitate searches, inmates may also be locked
down due to staff absences. They can be caused by pre-authorized absences provided for by the collective
agreement; entitlements to unscheduled absences provided for by the collective agreement (i.e. bereavement
leave, care of sick child etc.); numbers of inmates requiring community escorts to hospitals; mandatory training
either within or outside of the institution; redeployment of staff to other areas within the institution to deal with
emergencies or searches; and insufficient staff available to cover absences.

[34] Pursuant to the standing orders, an incident report is generated where it is determined that a lockdown
is necessary for the safe management of the institution. Where a lockdown is called due to staffing shortages,
the incident report that is generated will detail the factors leading up to the shortage, including the number of
community escorts and the reasons why staff are absent.

[35] Mr. Marchegiano deposes that lockdowns are a last resort. Staff, managers and senior administrators
do not want to have to lock down the institution unless necessary. Lockdowns create a difficult environment for
both staff and inmates.

[36] There are tools at the disposal of managers and senior administrators to ensure the institution is
appropriately staffed. When staff are absent, the Ministry can call upon fixed-term employees to backfill vacant
positions. Fixed-term staff are hired two weeks in advance of when they are required to work based on
upcoming vacancies.

[37] Once the availability of fixed-term staff has been exhausted, permanent correctional officers are given
the opportunity to backfill vacancies by working overtime hours. Overtime is voluntary.

[38] The respondents filed statistics that disclose lockdowns from January 1, 2014 to March 31, 2016.

[39] In 2014, the units in which the applicants were housed were locked down, in whole or in part, for 167
days, or 46 per cent of the total days in that year.

[40] In 2015, the units in which the applicants were housed were locked down, in whole or in part, for 199
days, or 55 per cent of the total days in that year.

[41] From January 1, 2016 to March 31, 2016, the units in which the applicants were housed were locked
down, in whole or in part for 36 days, or 40 per cent of the total days to the end of March.

[42] Some detailed statistics were filed with respect to lockdowns affecting Messr. Ogiamien and Nguyen
for the period May 1, 2015 to November 30, 2015, a period of seven months. Of the 214 days during that
period, Mr. Ogiamien was locked down for 74 days, of which 68 were caused by staff shortages. Mr. Nguyen
was locked down for 70 days, of which 66 were caused by staff shortages.

[43] The evidence is somewhat unclear as to the overall proportion of the lockdowns that were as a result
of staff shortages, as opposed to safety and security concerns. The chart supplied by the respondents for 2014
and 2015 appear to suggest that all of the lockdowns were as a result of staff shortages, but I am not prepared, on
the evidence I heard, to conclude that that was the case. However, it is also clear that a very large number were
caused by staff shortages, and if the specific sample from May to November, 2015 is reasonably reflective of the
percentages generally, it is clear that the overwhelming percentage of lockdowns are caused by staff shortages.
It is apparent that the larger percentage in 2015 was contributed to by the negotiations between the Government
of Ontario and OPSEU that took place, to a large degree, in 2015. I will have more to say about that later.

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[44] The frequency of lockdowns in 2016 seem to have abated somewhat, but they nevertheless occur on a
regular basis. Once again, most are caused by staff shortages.

[45] While I have no statistical information regarding 2013, it should be noted that Mr. Ogiamien has been
at Maplehurst since April 26, 2013. I will assume, in the absence of evidence to the contrary, that the frequency
of lockdowns in 2013 since Mr. Ogiamien’s arrival has been approximately the same as it was in 2014, and that
a significant number of those lockdowns were due to staff shortages.

[46] On cross-examination, Mr. Marchegiano acknowledged that many, if not most of the programs that are
normally available to inmates are not available during periods of lockdown.

[47] He acknowledged that all remand inmates and immigration holds are kept under maximum security
notwithstanding that they have not been convicted of any crime. He also acknowledged that lockdowns are rare
in the medium security part of the institution. He stated that there are thirteen inmates, including Mr. Ogiamien,
who are being held at Maplehurst on immigration holds. Mr. Marchegiano acknowledged that during
lockdowns, inmates are locked in their cells for 24 hours per day, with two people to a cell. Attempts are made
to let them out occasionally, but during such times it is difficult for inmates to make telephone calls or have
showers. When there is no lockdown, and inmates are in the day room, the cells are locked, and inmates must
use the washroom in the day room.

[48] Mr. Marchegiano acknowledged that there are a number of segregation cells. They are used for
disciplinary purposes and sometimes for protection.

[49] Normally, there are five correctional officers for 192 inmates. A unit could be locked down if only
one officer was missing.

[50] When pressed on cross-examination, Mr. Marchegiano testified that he could not agree or disagree
that there is a degree of hardship on inmates during a lockdown. He did acknowledge, however, that there is
generally an adverse reaction by inmates as a whole during lockdowns. There is considerable noise and banging
on cell walls and other items during lockdowns. He acknowledged that public visits and programs are cancelled
during lockdowns.

[51] Mr. Marchegiano testifed that efforts are made to keep up professional visits, including visits from
lawyers and health care visits, during lockdowns. He acknowledged, however, that there may be a curtailment
of professional visits in the sense that they may have to take place through glass as opposed to being
unobstructed.

[52] Mr. Marchegiano acknowledged on cross-examination that the institution does not clean the cells.
The inmates clean their own cells, and are given supplies to do so. He acknowledged that during lockdowns
there will likely be delays in getting supplies to the inmates. He also acknowledged that during lockdowns there
will likely be delays in getting laundry done.

[53] Another affidavit filed by the respondents was that of Daryl Pitfield, who is the Acting Director of the
Institutional Services Branch at the Ministry of Community Safety and Correctional Services. Among other
things, he oversees the labour management group for the office of the Assistant Deputy Minister. For several
years, he has provided labour relations advice to the Ministry.

[54] Mr. Pitfield deposes that the Ministry seeks correctional officer recruits on a province-wide basis
through advertisements. At one time, the recruitment process was somewhat relaxed, but now involves an
enhanced screening process. Candidates who pass through the screening process then progress to the training
stage. There is a nine-week program at the Ontario Correctional Service College, which is run by the
government. After training, recruits are assigned to specific institutions for orientation and site-specific
training. In total, the screening process, selection and training takes 6–12 months.

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[55] Various measures have been instituted in an attempt to improve the attendance of correctional
officers. In the negotiations for the 2009-2012 collective agreement, the government proposed the introduction
of an attendance support management pilot program, which was ultimately added to the collective agreement.

[56] Mr. Pitfield testified that the most recent round of collective bargaining with OPSEU began in October
2014. Ultimately, a settlement was reached on January 9, 2016.

[57] Mr. Pitfield testified that during collective bargaining, there were certain additional pressures.

[58] Instruction at the Ontario Correctional Services College is supplied for the most part by correctional
officers who are temporarily employed by the College. Those officers volunteer for the assignments. Following
the commencement of collective bargaining in October, 2014, the correctional officers withdrew their training
services from January 2015 to May 2015 and also refrained from applying for training positions. Under the
collective agreement, the Ministry is prohibited from hiring training professionals who are not members of the
union. As a result of the actions of the correctional officers, there were no graduating classes in the first half of
2015.

[59] During collective bargaining, there were many instances where staff were refusing to sign up for
overtime. In addition, the number of unplanned sick leave absences increased during collective bargaining.

[60] I asked Mr. Pitfield, during his cross-examination on his affidavit, whether the Government had
considered whether the collective actions of correctional officers constituted an illegal strike, contrary to the
Labour Relations Act, and if so, whether any consideration was given to applying to the Ontario Labour
Relations Board for a remedy. Mr. Pitfield advised that consideration had, indeed, been given to the issue, but in
the end, a decision was made to not apply to the Board.

[61] On behalf of the respondents, affidavits sworn by Crystal Miller were filed. She is the Manager,
Health Care Services at Maplehurst. In her main affidavit, she described the delivery of healthcare at
Maplehurst. For the purpose of this proceeding, it is not necessary to review her affidavit in detail, except to
note that significant medical and nursing services are provided. Attempts are made to maintain services as much
as possible during a lockdown. She deposes that during a lockdown, nurses will administer medication either by
going cell to cell or by providing medication through the dayroom hatch. She acknowledged that lockdowns
may sometimes cause delays in the administration of medication. She deposes that nurses exercise clinical
judgment in determining how to administer medication in these situations. She deposes that during lockdowns,
all medical appointments, including appointments at institutional physicians or psychiatrists, clinics and
community health centres are triaged by a nurse, in consultation with a physician if necessary. Based on the
clinical judgment of the nurse and/or physician, non-urgent appointments may be rescheduled.

[62] I note that from the material filed, both Mr. Ogiamien and Mr. Nguyen were able to obtain medical
services, where needed, during periods of lockdown, although there were a few occasions when medical
appointments for Mr. Ogiamien had to be postponed because of lockdowns.

[63] During cross-examination, Ms. Miller testified that she could not comment on the impact that
lockdowns have on people. She testified that lockdowns will impact different people differently. However, she
acknowledged that there could be negative impacts on people as a result of lockdowns. She testified that the
government does not have any mechanism to monitor impacts and has no mandate to collect any information.
She testified that all that really can be done is to deal with people who raise issues during lockdowns.

[64] The Attorney General of Canada filed affidavits sworn by Satvir Tak and Adriano Giannini.

[65] Mr. Tak is the Manager of the Toronto Immigration Holding Centre in Toronto.

[66] Mr. Tak deposes that Canada Border Services Agency officers have the authority to arrest and detain
persons they have reasonable grounds to believe are inadmissible and are a danger to the public or are unlikely

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to appear for examination, an inadmissibility hearing or removal from Canada. He deposes that this authority is
found in section 55 of the Immigration and Refugee Protection Act.

[67] Mr. Tak deposes that implicit in an officer’s authority to arrest and detain is a discretion to decide
where someone is housed upon arrest. Such persons may be held at an immigration holding centre. However, in
some cases they are detained in provincial correction facilities.

[68] Mr. Tak deposes that the Toronto Immigration Holding Centre is intended to house only low risk
detainees. Since September, 2014, officers are required to assess a detainee’s risk level by using the National
Risk Assessment for Detention.

[69] For some reason, which Mr. Tak could not explain, the National Risk Assessment for Detention was
not completed with respect to Mr. Ogiamien prior to January 22, 2016.

[70] Those who cannot be admitted to the Toronto Immigration Holding Centre include those who have a
criminal record or have outstanding charges; are fugitives; are an escape risk; have a history of violence; pose a
danger to themselves or others; have exhibited disturbing behaviour; are suicidal; have serious medical issues; or
are being transferred from a jail or other detention centre who have not passed the jail’s medical assessment. He
deposes that if cases of that sort are detained at the Toronto Immigration Holding Centre, serious situations may
result.

[71] Mr. Tak deposes that the Toronto facility is only one of two immigration holding centres in Canada
which houses detainees beyond short term periods. The second such facility is in Laval, Quebec.

[72] On January 21, 2015, an agreement was signed between the Ontario Minister of Community Safety
and Correctional Services, and the Federal Minister of Public Safety and Emergency Preparedness, regarding
persons detained under the Immigration and Refugee Protection Act. A copy of that agreement is attached as an
exhibit to Mr. Tak’s affidavit.

[73] Mr. Tak deposes that under the terms of the contract Canada Border Services Agency has with the
company that owns the premises in which the Toronto facility is located, the facility will hold only low risk
detainees. He deposes that the insurance policy that governs the building precludes the detention of individuals
with a criminal record or outstanding criminal charges.

[74] On cross-examination, Mr. Tak acknowledged that the Government of Canada is familiar with the fact
that there are lockdowns that occur at Maplehurst. He testified that the Government of Canada relies on the
provincial correctional system to deal appropriately with lockdowns. He acknowledged that it is the
Government of Canada’s duty to understand how the provincial facility operates before a decision is made to
send someone to a provincial facility.

[75] Mr. Giannini is the Manager of the Immigration Holding Centre in Laval, Quebec. In general, he
confirmed that similar criteria are used in determining what immigration detainees can be placed at the Laval
facility.

[76] Fifteen affidavits were filed on behalf of the applicants, including affidavits sworn by Mr. Ogiamien
and Mr. Nguyen. Mr. Ogiamien and Mr. Nguyen were cross-examined at the hearing, and counsel for the
respondents elected to cross-examine some of the other deponents.

[77] I have not relied on the affidavits filed by deponents other than the applicants themselves, except for
the purpose of background, and to determine whether some of the impacts deposed to by the applicants are
generic or systemic in nature.

[78] Mr. Nguyen deposes that lockdowns are very inhumane to the inmates. He deposes that being locked
down in a cell all weekend limits people from getting in touch with family or lawyers, and prevents people from
accessing showers, which can cause illness and disease. He deposes that they lost yard time so that they missed
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on vitamin D, which boosts mood and keeps inmates from lashing out. He deposes that if they are lucky the
staff does try to launch a shower program so people can have a chance to clean up and get back to their cells one
by one. He deposes that this seldom keeps up and sometimes they don’t shower for the entire weekend.

[79] Mr. Ogiamien deposes that lockdowns can be for as many as 25 days in a month, for three days at a
time. Inmates are denied showers for as many as three to fifteen days. He deposes that he has been denied
showers for as many as seven days on five different occasions.

[80] Mr. Ogiamien deposes that during lockdowns, inmates are denied clean linen, including bedsheets;
cleaning supplies; AA meetings; religious meetings; anger management, etc. He deposes that inmates are denied
therapeutic exercises and any form of recreation.

[81] Mr. Ogiamien deposes that lockdowns are the cause of inmates fighting amongst themselves. When
they are let out during short periods during lockdowns, inmates fight over showers and phones, and if they do
not get to use the shower or a phone there is no guarantee that an inmate will get another brief unlocked period
for the next seven days or more. He deposes that inmates gang up or use weapons just to get a shower or a
telephone.

[82] Mr. Ogiamien deposes that inmates bang on their cell doors all night out of frustration, so that it is
difficult to sleep peacefully. He deposes that some inmates pull the water sprinklers in their cells just to get a
shower. He deposes that medication is not consistent, as there is insufficient staff to escort the nurse on medical
runs. Medical appointments are cancelled, and there is a higher rate of inmates’ ailments.

[83] During a brief unlocked period during lockdowns, inmates cannot go inside their cells to use the
restroom. There is only one toilet in the dayroom to satisfy 32 inmates in each wing, so inmates must fight over
priority for who gets to use the toilet.

[84] It should be noted that of the many times Mr. Ogiamien was seen or assessed by a nurse or a physician
since the date of his admission to Maplehurst, there were three occasions during which he was unable to be
assessed because of a lockdown or due to staffing constraints.

[85] Joshua Barreira swore an affidavit on December 16, 2015. He deposes that there was one month
during which he was let out of his cell only five times. He swore “if you’re not used to this, it can drive a man
suicidal or depressed and that leads to drugs or worse.” He swore “this lockdown is not human and can turn one
crazy. Animals don’t get locked up for a month at a time in a box without consequences, so why do we?”

[86] Mr. Barreira deposes that when Maplehurst is locked down, they don’t allow visitors. He swore that
his mother was unable to see him for weeks. He deposed that his mother called every day to see if there were
visits and on a number of occasions the jail said yes. Accordingly she drove from out of town, waited in line for
an hour, then found out that visits were cancelled. Another time, her supervisor said if she left her workplace to
go on a visit, she would be fired. She came anyway, and when she got to Maplehurst the visit was cancelled.

[87] Lucas Bovell swore an affidavit on December 15, 2015. He deposes that lockdowns cause stress and
other emotional problems. He said being in lockdown all weekend is “very poor hygiene” which causes
sickness. He deposes that during lockdowns they are unable to use the phones to contact lawyers and family.

[88] Nathan Ross Clayton swore an affidavit on December 15, 2015. He deposes that being locked up all
the time is not good for inmates. He says they cannot take a shower and therefore have bad hygiene and he has
dry skin from the sweat. Further, he cannot use the phone to talk to his family.

[89] Matthew Costain swore an affidavit on December 15, 2015. He deposes:

Me being locked in my cell all the time has had a negative effect on my physical and mental
health. I am not able to speak to my family when the institution was on lockdown, even when my
four-year-old daughter had surgery on her neck and throat.
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[90] He also deposes:

When we are on lockdown, there is no calls, no yard time, no showers, for days. They don’t give
us new clean clothes – they even take the clean clothes out of our cells.

[91] Donald P. David swore an affidavit on December 15, 2015. He deposes that almost every weekend he
is locked down and stays in his cell for the whole weekend. There are no showers, no phone calls and no visits.
It starts on Friday evenings and goes on through to Monday. Sometimes they are locked down on weekdays
also. The reasons he keeps hearing from the correctional officers is that they are short staffed.

[92] Mr. David deposes that he is that he is 48 years old and is a Type 2 diabetic. He says that locking him
up in a cell for two or more days is not something good for his medical condition. He needs at least 20 minutes
every day of “yard time”. His health can rapidly decline if he is not given his rights to go out in the inmate yard
area. When the jail is locked down there are times he cannot go to see the nurse to check his blood sugar and
blood pressure.

[93] Rob Gaudette deposes that lockdowns due to short staff are ridiculous. There are no lawyer calls, no
visits and no showers for days on end.

[94] Andrew Green deposes that the jail is locked down almost every day, and inmates are denied showers,
phone calls, visits, mail, laundry, fresh air, hygiene products, and religious programs. The food schedule has
been delayed by two hours each meal. Some inmates are sleeping three to one cell.

[95] Mr. Green deposes that when he asked the correctional officers why they are being treated like this,
they told him they are short of staff. They’ve also told him that they don’t agree with what’s going on but they
cannot do anything to change these conditions.

[96] Amal Greensword deposes that because of all the lockdowns he does not get much opportunity to
discuss his case with his lawyer. He deposes that they get lockdowns more often than other units due to staff
shortages. They don’t get any programs during lockdowns.

[97] Mr. Greensword deposes that they had just been locked down for seven days ending Monday
th
December 14 . He was told it was for a search. He deposed that during this period they had a shower program
three times, for 20 minutes the first two times, then for 30 minutes. He deposed that they only got fresh clothes
once right before the lockdown ended.

[98] Noah Kahsay deposes that since his arrest in early 2013, the jail has been locked down to the point
where the lockdown days have added up to a full year, 365 days, and still counting. During those lockdowns,
inmates are denied phone calls, showers, visits, fresh clothes or sheets, hot meals, access to legal counsel by
phone or visit, access to religious programs, access to correctional programs, and some inmates are sleeping
three to a cell.

[99] Aleksandar Mihajlovic deposes that since he has been in Maplehurst, he has been locked down in
excess of seven days in a row. He deposes that this has affected him mentally and physically, and his personal
hygiene. Further, when inmates are locked down for days on end the other inmates get into physical altercations
over the showers and the phones. During his first three months, starting from June 10th to September, he can
only recall one weekend he was not on lockdown. For this reason, his family has not been able to come and visit
due to the fact that they work during the week and reside out of town. Further, his ability to communicate with
his lawyer is diminished because of the lockdowns.

[100] Mustafa Muhammed deposes that his father cannot visit him because every weekend is a lockdown
and there are no programs running. His father works during weekdays. He says “I rarely see the sky and
breathe fresh air, or get any sun. Rarely do I get my Friday prayers to practice my religion.”

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[101] Paul Murray deposes that he was brought to Maplehurst on July 30, 2015, and has been on lockdown
for a total of 38 days in August and September, 2015. He says that from July to mid-August, he was only let
outside for yard time four times. He says family and friends have constantly come to visit only to be denied
visits during the lockdowns.

[102] Michael Nanan deposes that they have been getting locked down for no reason, and inmates haven’t
been able to make phone calls when necessary. He says some inmates need to make important phone calls to
lawyers and they have been getting locked down for multiple days at a time.

[103] Mr. Nanan deposes that inmates have been getting in-custody pre-sentencing reports and should be
able to access programs in order to get a decent PSR. Because of the lockdowns, they have been unable to do
so, and the only answer they get is because they are short staffed. He says there have been weeks that they don’t
even get clean clothes, maybe one t-shirt a week.

[104] In addition to his affidavit, Mr. Nguyen also gave some evidence viva voce before he was cross-
examined.

[105] He testified that during lockdowns, the main impacts on himself are a lack of visits from his family; no
phone calls; very limited showers; no stimuli; he cannot talk to anyone except his cellmate; there is poor
hygiene, particularly because of living at close quarters with his cellmate; it is hard to co-exist with his cellmate;
there is no one else to talk to; there is not enough light; there is no opportunity for exercise. He testified that in
the last few weeks prior to the hearing, lockdowns had been almost continuous. There is no television or radio.
There is only a toilet, bed and some shelves and a table, and two seats. If there is a lockdown, he has gone
almost a week without a shower. Medical appointments have been delayed.

[106] Mr. Nguyen testified that he has to wash his own laundry. He sometimes can go for two weeks or
three weeks without a change of clothes. If lawyer visits occur at all during lockdowns, they are through glass
only.

[107] Mr. Nguyen testified that during lockdowns there is much stress and anxiety. All there is is himself
and his cellmate. He said it can drive you mad. He said there is too close contact for a long period. It is not
hygienic, and it smells. He said it is gloomy and depressing and drives him mad.

[108] Mr. Nguyen testified that lockdowns affect his relationship with his family. He has been trying to fix
his relationship with his little sister. If lockdowns occur, he cannot call her when he said he would, and thus to
his sister he is not keeping his word.

[109] On cross-examination he acknowledged that sometimes showers are permitted during lockdowns.
However, there is no yard access, even if a lockdown is for only one half of a day.

[110] Mr. Nguyen acknowledged that there were some visitors during lockdowns, including some lawyer
visits. There were some transactions at the canteen during lockdowns.

[111] Paul Murray was cross-examined. He testified that he has three children and a girlfriend. He said they
have tried to come to see him. They call ahead, but when they arrive and a lockdown is in progress, they are
turned away.

[112] Mr. Murray testified that on lockdown days if his lawyer comes to the institution, he can only see him
through glass.

[113] Mr. Murray testified that during lockdowns, stress and tension are higher. Showers are very limited.
After three or four days, inmates will be let out for about 15 minutes to use the showers and the telephones.
Everyone wants to use them, but that cannot happen. People act out when they are stressed, particularly during
and after lockdowns.

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[114] On cross-examination, Mr. Murray said that during August, 2015, he was locked down for 24 out of 30
days. For ten days, he could not take a shower.

[115] Joshua Barreira was cross-examined. He gave some direct evidence.

[116] Mr. Barreira testified that guards told him lockdowns were because of short staffing. He was told “If
you don’t like it, riot.” He said there were no showers during lockdowns. His lawyer was either turned away or
sometimes he could see him through glass. He said visits from other family members were cancelled.

[117] Mr. Barreira testified that inmates cannot take programs in the jail while there are lockdowns. He said
relationships with other inmates are seriously affected. He said showers occur perhaps every three or four days
during lockdowns, and everyone wants to use the phone. He said stress is high.

[118] On cross-examination, Mr. Barreira acknowledged that his alleged difficulty in seeing his lawyer was
not in his affidavit. He confirmed that his mother had called ahead and was told she could see him, but when she
arrived the institution was locked down, and he could not see his mother.

[119] On re-examination, he testified that there is nothing to occupy one’s time during a lockdown. Sleep is
affected, and the mind races.

[120] Mr. Kahsay was cross-examined. He testified that lockdowns are traumatizing. He confirmed that he
had put in a request to transfer that was refused. He said that during a period of 60 days there were a handful of
showers.

[121] Mr. Ogiamien was cross-examined. He gave some direct testimony at the hearing.

[122] He said there were lockdowns in 2013. They were bad then. The number varied by month.

[123] Mr. Ogiamien testified that during lockdowns he could not use the telephone. Sometimes he went 14
days without a shower. Sometimes he went for a week without a change of clothes. Sometimes he went for a
month with no sheet changes. He requested to be transferred many times. He wanted to go the “Immigration
Jail”. He was never given any reason why he could not.

[124] Mr. Ogiamien testified that he now has anxiety disorder. He had never had that condition before.

[125] On cross-examination, Mr. Ogiamien acknowledged that there had been professional visits during
lockdowns. He said that he could not see a psychiatrist for some considerable time because of the lockdowns.
He acknowledged that he has a criminal record. He has a number of health issues, including high blood pressure
and anxiety.

[126] Mr. Ogiamien acknowledged that lockdowns will impact individuals differently.

Submissions

[127] Ms. Jackman, amicus curiae, submits that lockdowns are unpredictable, in the sense that no one knows
when they will occur, or for how long they will occur. They occur with such frequency that significant
disruption of the lives of inmates is inevitable. Inmates have listed many problems arising from lockdowns,
including lack of yard time and physical activity; problems with hygiene including unclean cells, limits on
access to showers, and limits of supply of clean clothing; restrictions on access to family and friends, including
limits on phone use and cancellation of visiting hours; restrictions on access to counsel due to limits on phone
use and cancellation or limitations on visits; restrictions on ability to participate in beneficial programs; and
negative psychological effects, including stress, anger, helplessness, frustration and tension within the inmate
population.

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[128] Ms. Jackman notes that many of these observations by inmates are not contradicted by the
respondents’ affidavits. At most, they can only say that they were not aware of these issues or they were not
brought to their attention. Sometimes it is suggested that the correctional personnel have done things to alleviate
the problems, but they are primarily related to health care and professional visits. She notes that the Ministry
witnesses appeared to be unable or unwilling to acknowledge the impact of lockdowns on inmates.

[129] Ms. Jackman submits that the Ministry has known about the problem of staff shortages, and the fact
that lockdowns result from them, for many years. In some cases, including one decided by Nordheimer J. in
2002, the problem has been acknowledged. However, it would appear that very little has been done to overcome
the problem. Only recently, it appears, has very much been attempted to train more staff and to develop
measures to reduce absenteeism. Mr. Marchegiano would not give an opinion as to whether the problem of
frequent lockdowns would be resolved within the next five years.

[130] It is clear, from the evidence, that the problems related to lockdowns were exacerbated during the
negotiation process between OPSEU and the Provincial Government. Mr. Pitfield acknowledged that this was
so.

[131] Ms. Jackman submits that the court should consider the basic standards for fair treatment of detainees
under international and regional Human Rights bodies and agencies. One of the main standards, which Canada
endorsed in 1975, is the United Nations Standard Minimum Rules for the Treatment of Prisoners. There are
many others. On September 29, 2015, the United Nations General Assembly adopted the United Nations
Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules).

[132] Many of the standards have common elements concerning fair and humane treatment including:

a) Access to adequate and appropriate medical and health services;

b) Access to legal representation and advice;
c) The ability to maintain social and familial ties;
d) Conditions of detention which ensure the maintenance of order and the safety and
protection from violence of those within the prison complex;
e) Access to programs, activities and services, including educational, vocational, remedial,
moral, spiritual, social, health and sports based, and exercise;
f) Access to reading materials;
g) Appropriate accommodation and living space which meet requirements of health, both
physical and mental, and sanitary requirements, including climatic conditions, appropriate
lighting, heating, ventilation and cleanliness;
h) Access to the means to maintain adequate personal hygiene, including bathing and
showers, toilet articles necessary for health and cleanliness, shaving and haircuts;
i) Access to clean clothing and bedding;
j) Access to food of nutritional value adequate for health and strength;
k) Access to an external independent agency with the jurisdiction to address inmate
complaints and conduct regular monitoring of the facility; and
l) Separation of convicted from untried prisoners, and separation of civil prisoners from
persons imprisoned by reason of a criminal offence.

[133] Ms. Jackman submits that lockdowns impact on the compliance with basic standards of treatment in
many ways, including:

a) Detracting from the ability of inmates to maintain good mental and physical health
because of the increased tension and frustration among them caused by the close
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conditions of confinement;
b) Limitations on access to space for exercise and fresh air, which negatively impact on
good health;
c) Limitations on access to healthcare;
d) Limitations on access to programs, activities and services – educational, vocational,
remedial, moral, spiritual, social, health and sports based, and exercise;
e) Non-compliance with sanitary and cleanliness standards, with respect to personal
hygiene, including access to showers and clean clothes and bedding, and with respect to
living accommodations and facilities; and
f) Failure to provide a safe space for inmates, in that access to guards is limited during
lockdowns, tensions increase among inmates, and they may be at increased risk of harm
and have limited access to food.

[134] Ms. Jackman notes that detention in remand maximum security facilities has been recognized by
Canadian courts as particularly onerous, to the extent that extra credit is given for time spent in such institutions
when determining an appropriate sentence on conviction. For many years, courts routinely would give credit at
a ratio of 2 to 1, or even 3 to 1, for pre-trial custody, and even now credit at a ratio of 1.5 to 1 is specifically
recognized in the Criminal Code and has been endorsed by the Supreme Court of Canada.

[135] Ms. Jackman submits that the court has jurisdiction to provide for relief on an application for habeas
corpus with certiorari in aid where the complaint is grounded in the form of confinement. In this case, the
complaint is the imposition of a more restrictive form of detention through lockdowns on a frequent and ongoing
basis.

[136] Ms. Jackman submits that relief by way of habeas corpus is available even if no Charter right is
contravened. Relief is available if the detention is found to be “not lawful”; it is not required that the detention
be found to be “not constitutional”. It is also available as a remedy for Charter breaches.

[137] Ms. Jackman submits that the treatment of the applicants constitutes violations of sections 9, 12 and 7
of the Charter.

[138] Section 9 of the Charter prohibits arbitrary detention. Ms. Jackman submits that the frequent, random
and unplanned nature of the lockdowns due to staffing inadequacies is arbitrary, as being imposed without
institutional justification. It may be that occasional lockdowns would not be seen as arbitrary, if they are
justified for legitimate safety and security reasons or as an avoidable but necessary occurrence in the operation
of a large jail caused by occasional staffing problems. However, lockdowns at Maplehurst have been occurring
on average every other day over a two-year period. The primary reason is inadequate staffing. They are not
exceptional and there is no effective monitoring of their occurrences, nor has there been any real effort to end
them.

[139] Section 12 of the Charter prohibits cruel and unusual treatment or punishment. Accepting that, to
violate s.12, treatment or punishment must be “so excessive as to outrage standards of decency”, or that it is
“grossly disproportionate” such that Canadians would find the punishment “abhorrent or intolerable”, that
standard is met here.

[140] Each case must be considered on its own facts, both contextually and cumulatively. Canadian courts
have determined that some forms of detention can offend s.12. For example, in one case an institution was
found to have breached s.12 by arbitrarily placing an applicant in solitary confinement, in unsanitary conditions.
In another case, the court found that some inmates were entitled to a remedy because the conditions in which the
inmates lived, double bunking and locked up 18-23 hours per day without access to recreational activities, and
provided inadequately cleaned underwear, were grossly disproportionate, intolerable, and degrading to human
dignity, and as such breached their s.12 Charter rights.

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[141] In this case, some of the basic standards for detainees are not fully met at Maplehurst. The addition of
frequent, random and unplanned lockdowns over a two-year period constitutes cruel and unusual treatment. It is
not imposed as a punishment, rather, it appears to have become a normal part of Maplehurst’s operation through
indifference and a failure to consider the needs, interest, and rights of inmates on remand and immigration holds.

[142] Ms. Jackman submits that the treatment of the applicants constitutes a breach of s.7 of the Charter.
She submits that the conditions under which a person is detained engage the interests of liberty and security of
the person. In this case, the testimony of the applicants and the other inmates who provided affidavits
underscore the stressful nature of random, frequent lockdowns. In this case, the treatment of Mr. Nguyen, who
is on remand, and Mr. Ogiamien, who is on an immigration hold, are particularly problematical because their
detention does not arise from a conviction for a criminal offence.

[143] Ms. Jackman submits that there does not appear to be any foreseeable change in the frequency of
lockdowns at Maplehurst. While more staff are apparently being trained and recruited, it is entirely uncertain as
to when, if ever, this will ameliorate the problem. Furthermore, no other avenues of reducing the impact on
inmates have been considered.

[144] Ms. Jackman submits that the frequent lockdowns which have become part of the regular operation of
Maplehurst will not end unless there is a court order requiring that they end, for all but legitimate security
concerns.

[145] Ms. Jackman submits that an appropriate order would include the prohibition of the imposition of
lockdowns due to staffing inadequacies, together with an order returning the matter to the court in six months
time in order to monitor the situation. Furthermore, she submits that Mr. Ogiamien should be transferred to the
Immigration Holding Centre under the responsibility of the Federal Minister of Public Safety.

[146] Mr. Nguyen, in his submissions, argued that staff shortages were the main reason that lockdowns
occurred. He submitted that the frequency of lockdowns had not changed over time. The lockdowns caused
considerable hardship, including the unavailability of programs. As remedies, Mr. Nguyen argued that inmates
should be allowed out of their cells and on the range for longer periods. They should be entitled to eat on the
range, rather than in their cells as is currently the case. He submitted that there should be more telephones
available to inmates, and there should be more social workers.

[147] Mr. Ogiamien, in his submissions, submitted that the lack of staff in the institution renders it unsafe.
He submitted that there is a lack of medical treatment during lockdowns.

[148] Mr. Ogiamien submitted that the situation became worse during collective bargaining, and he
submitted that no one represents the interests of inmates during collective bargaining. The position of the
inmates appears to be used simply as a bargaining chip.

[149] Mr. Ogiamien noted that the position of immigration holds, such as himself, appears to be
questionable. He noted that there is no assessment conducted of immigration detainees, notwithstanding that it
is required by statute.

[150] As remedies, Mr. Ogiamien proposed that there be two officers in each range; that each inmate be
permitted to eat outside his cell; that shower shoes be furnished to inmates; additional pillows be furnished to
inmates; a better selection of books, including those in other languages and based on other cultures, be
furnished; that court forms be furnished to inmates, including those for judicial review and habeas corpus; that
inmates be given access to internet and fax facilities; that better food receptacles, including cups, bowls and
spoons be furnished; that additional program rooms be furnished; that additional cleaning utensils be furnished;
and that additional money for indigent children be provided.

[151] Mr. Ogiamien requested that he be ordered to be transferred from Maplehurst to a federal immigration
facility.

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[152] Counsel for the Attorney General of Ontario and the Ministry of Community Safety and Correctional
Services submit that this application should be dismissed.

[153] Fundamentally, counsel submit that there should be deference paid to decisions of prison
administrators who are better able to make decisions involving the administration of prisons than judges.

[154] Counsel submit that the conditions of the applicants’ incarceration do not constitute violations of the
Charter. Further, no grounds for habeas corpus have been advanced.

[155] Counsel note that no expert evidence has been called here, to establish that the conditions of the
applicants’ detention are inadequate.

[156] Counsel submit that a number of cases have been decided, in which it is made clear that the matters
complained of here do not give rise to any remedy, whether by way of habeas corpus or under the Charter.
Counsel particularly rely on R. v. Jordan. [2002] O.J. No. 5250 (S.C.J); R. v. Olson (1987), 1987 CanLII 4314
(ON CA), 62 O.R. 2d 321 (C.A.) aff’d 1989 CanLII 120 (SCC), [1989] 1 S.C.R. 296; R. v. Morrissey, [2003]
O.J. No.1475 (S.C.J.); and R. v. Sanchez, [1996] O.J. No.7 (C.A.).

[157] Counsel submit that in order to succeed in a claim under s.12 of the Charter, it must be shown that the
conditions of incarceration are egregious, and shock the conscience of the court and the public. Counsel submit
that the applicants have not come close to showing that that standard is met here.

[158] Counsel submit that in the final analysis, lockdowns are imposed only to ensure the security of the
facility and staff, and inmate safety. They are not arbitrary. They are simply a last resort for managing the
institution based on the particular circumstances faced by the institution on any given day.

[159] Counsel note that there were challenges to the staffing of Maplehurst during collective bargaining, but
that since the conclusion of bargaining the Ministry has made a concerted effort to recruit new staff and alleviate
the problem of lockdowns that occur as a result of insufficient staffing. Counsel submit that the government
should be given an opportunity to engage in good faith efforts in that regard.

[160] In terms of remedies, counsel submit that habeas corpus is not available to prohibit future temporary
lockdowns. At most, it is available to challenge the validity of a particular form of custody, including
confinement in a special handling unit, placement in administrative segregation or reclassification, and being
held in an institution having a particular security designation. Counsel submit that habeas corpus is not
available to challenge any and all conditions of confinement. The courts should be reluctant to use habeas
corpus to analyse the details of prison conditions, in order to avoid embroiling the courts in the management of
prisons.

[161] Counsel note that the legality of Mr. Ogiamien’s detention is being determined in other habeas corpus
proceedings before Justice Coats. In the current case, in order to avail themselves of the remedy of habeas
corpus, the applicants must make out a deprivation of residual liberty. The onus rests on the applicants to do so.
In this case, they have not satisfied the onus of demonstrating that lockdowns constitute a deprivation of their
residual liberty.

[162] If it can be said that the applicants have demonstrated a substantial change in their residual liberty, the
Ministry and the Attorney General have demonstrated that temporary lockdowns are not unlawful, unreasonable
or arbitrary. Rather, they are the result of reasonable decisions made for the purpose of maintaining the safety of
inmates and staff, and the security of the institution. They are decisions of last resort, and are imposed only
when absolutely necessary.

[163] Counsel submit that lockdowns, in the situation as presented in the evidence in this case, do not
infringe the applicants’ section 12 Charter rights. While prison conditions such as overcrowding may infringe s.
12, the threshold for establishing a breach of s. 12 is high. Only punishment or treatment that is “grossly

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disproportionate” runs afoul of the constitutional guarantee. Ordinary burdens, inconveniences and loss of
privileges do not offend s. 12.

[164] Counsel submit that the court should be cautious in relying on international law documents, as they are
only tangentially relevant to issues that arise under the Charter. The courts of this country have adopted their
own jurisprudence in interpreting the guarantees under the Charter. International standards, that reflect a broad
variety of political and social circumstances, have limited application in Canada. In any event, the Ministry is in
compliance with general international standards.

[165] Counsel submit that while conditions during temporary lockdowns are less than optimum, the evidence
establishes that the institution works extensively to provide services and privileges, including professional visits,
access to showers and access to telephones.

[166] Counsel submit that the protection from arbitrary detention under s. 9 of the Charter has no application
here, because s. 9 is limited to challenges to the initial arrest or detention of a suspect.

[167] Counsel submit that s. 7 of the Charter has no application here. The constitutional validity of
detention conditions is properly reviewed under s. 12 of the Charter. There is no room for any residual analysis
under s. 7 if s. 12 has not been violated.

[168] In any event, counsel submit, there has been no deprivation of the applicants’ residual liberty interests
here. The temporary lockdowns at Maplehurst are imposed for valid operational and safety reasons.

[169] Counsel submit that in this case, any deprivation of a s. 7 interest is in accordance with the principles
of fundamental justice. Temporary lockdowns are imposed only for the purpose of staff and inmate safety. The
imposition of temporary lockdowns has proved effective and necessary in protecting the safety of staff and
inmates. Thus, any deprivation of liberty or security of the person is in accordance with the principles of
fundamental justice, and any claim under s. 7 of the Charter must be rejected.

[170] Counsel submit that if any violation of the Charter is found to have occurred, the court should restrict
itself to granting a declaration only. Any intrusive remedy, such as ordering the Ministry not to lock down the
institution, or to take steps to remediate the situation, would be an unwarranted intrusion on the governance of
the institution by those charged with the task of doing so, and would involve the court in directing how the
institution is to be run. Counsel submit that the court should be most reluctant to do so, and in any event is not
well-equipped to do so.

[171] Counsel for the Attorney General of Canada adopts the submissions of the Ministry and the Attorney
General of Ontario as they relate to whether habeas corpus is available, and/or any Charter rights of the
applicants have been infringed. Counsel restricted his submissions to whether a Charter remedy for Mr.
Ogiamien should include an order transferring him from Maplehurst to an immigration holding centre.

[172] Counsel submits that such an order would be inappropriate in the circumstances, as eligibility for
detention in an immigration holding centre is determined by way of an assessment carried out by a Canada
Border Services Agency officer under the National Risk Assessment for Detention process.

[173] Counsel notes that such an assessment has been carried out for Mr. Ogiamien, and he has been
assessed as a high risk detainee. The immigration holding centres are only equipped to handle detainees with a
lower risk profile. Mr. Ogiamien has criminal convictions in the United States and Canada and has outstanding
criminal charges in the Province of Quebec. Thus, he is clearly in a high risk category.

[174] Pursuant to the terms of the contract between Canada Border Services Agency and the owner of the
property where the immigration holding centre is located, only persons assessed as suitable, or low risk, are to be
housed at the immigration holding centre. Further, the insurance on the property refers to it as a low risk
detention centre.

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[175] Counsel submits that the agreement between Canada and Ontario respecting the detention of
immigration detainees provides that parties will endeavour to ensure to the extent possible that persons detained
pursuant to that agreement are not comingled with inmates detained in respect of a criminal charge. Counsel
notes that the lawfulness of that agreement has not been challenged.

[176] Counsel referred to a large number of cases in their written and oral submissions. They include, not in
any particular order: Almrei v. Canada (Attorney General), [2003] O.J. No. 5198 (S.C.J.); Bacon v. Surrey Pre-
trial Services Centre, 2010 BCSC 805 (CanLII), [2010] B.C.J. No. 1080 (B.C.S.C.); Canada (Attorney General)
v. Bedford, 2013 SCC 72 (CanLII), [2013] 3 S.C.R. 1101; Charkaoui v. Canada (Citizenship and Immigration),
2007 SCC 9 (CanLII), [2007] 1 S.C.R. 350; Criminal Trial Lawyers Assn v. Alberta (Solicitor General) (2004),
2004 ABQB 534 (CanLII), 188 C.C.C. (3d) 538 (Alta. Q.B.); R. v. MacPherson (1996), 1996 CanLII 10188 (NB
QB), 177 N.B.R. (2d) 1 (N.B.Q.B.); May v. Ferndale Institution, 2005 SCC 82 (CanLII), [2005] 3 S.C.R. 809;
McCann v. Canada, 1975 CanLII 1104 (FC), [1976] 1 F.C. 570 (T.D.); Mission Institution v. Khela, 2014 SCC
24 (CanLII), [2014] 1 S.C.R. 502; Morin v. Canada (National Special Handling Unit Review Committee), 1985
CanLII 24 (SCC), [1985] 2 S.C.R. 662; R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595; R. v.
Johnson, 2011 ONCJ 77 (CanLII), [2011] O.J. No. 822 (O.C.J.); R. v. Khan, [2003] O.J. No. 5644 (O.C.J.); R. v.
Kravchov, [2002] O.J. No. 2172 (O.C.J.); R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613; R. v. Monje
(2011), 2011 ONCA 1 (CanLII), 273 O.A.C. 392 (C.A.); R. v. Morant, [2013] O.J. No. 2177 (S.C.J.); R. v.
Permesar, [2003] O.J. No. 5420 (O.C.J.); R. v. Prince, 2006 ONCJ 349 (CanLII), [2006] O.J. No.3776 (O.C.J.);
R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.); R. v. Smith, 1987 CanLII 64 (SCC),
[1987] 1 S.C.R. 1045; R. v. Smith, [2003] O.J. No.1782 (O.C.J.); R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1
S.C.R. 933; R. v. Wiles, 2005 SCC 84 (CanLII), [2005] 3 S.C.R. 895; Reference Re Motor Vehicle Act (British
Columbia) S.94(2), [1985] 1 S.C.R. 486; Singh v. Canada (Minister of Employment and Immigration), 1985
CanLII 65 (SCC), [1985] 1 S.C.R. 177; Spindler v. Millhaven Institution (2003), 2003 CanLII 32901 (ON CA),
175 O.A.C. 251 (C.A.); Trang v. Alberta (Edmonton Remand Centre), 2006 ABQB 834 (CanLII), [2006] A.J.
No.1473 (Q.B.); Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6 (CanLII), [2010] A.J. No.31
(Q.B.); Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness) (2015), 2015 ONCA 700
(CanLII), 127 O.R. (3d) 401 (C.A.); R. v. Jordan, [2002] O.J. No.5250 (S.C.J); R. v. Olson (1987), 1987 CanLII
4314 (ON CA), 62 O.R. (2d) 321 (C.A.); aff’d 1989 CanLII 120 (SCC), [1989 1 S.C.R. 296; R. v. Azija, [2008]
O.J. No.3052 (S.C.J.); R. v. Morrissey, [2003] O.J. No.1475 (S.C.J.); Corner v. Canada, [2002] O.J. No.4887
(S.C.J.); Iwanicki v. Ontario (Minister of Correctional Services), [2000] O.J. No.955 (S.C.J.); Weatherall v.
Canada (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 S.C.R. 872; Munoz v. Alberta (Edmonton
Remand Centre), [2004] A.J. No. 1344 (Q.B.); Maltby v. Saskatchewan (Attorney General) (1982), 1982 CanLII
2320 (SK QB), 2 C.C.C. (3d) 153 (Sask. Q.B.); Soenen v. Edmonton Remand Centre (1983), 1983 CanLII 1113
(AB QB), 8 C.C.C. (3d) 224 (Alta. Q.B.); Crews v. Canada (Correctional Service) (1994), 1994 CanLII 4799
(SK QB), 126 Sask. R. 181 (Q.B.); Suman v. Canada (Attorney General), [2012] O.J. No. 374 (S.C.J.); Biever v.
Alberta (Director of Edmonton Remand Centre), [2015] A.J. No.1044 (Q.B.); Egan v. Quinte Detention Centre,
[2008] O.J. No. 1624 (S.C.J.); Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 S.C.R. 459; Conway
v. Barbaree, [2010] O.J. No.2466 (S.C.J.); R. v. Campbell, [2010] O.J. No. 4962 (S.C.J.); McArthur v. Regina
Correctional Centre (1990), 1990 CanLII 7609 (SK QB), 56 C.C.C. (3d) 151 (Sask. Q.B.); R. v. Boone (2014),
2014 ONCA 515 (CanLII), 312 C.C.C. (3d) 27 (Ont. C.A.); Jaballah v. Canada (Minister of Citizenship and
Immigration), 2004 FC 299 (CanLII), [2004] F.C.J. No. 420 (F.C.); Baroud v. Canada (Minister of Citizenship
and Immigration) (1995), 1995 CanLII 638 (ON CA), 22 O.R. (3d) 255 (C.A.); R. v. Malmo-Levine, 2003 SCC
74 (CanLII), [2003] 3 S.C.R. 571; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; R. v. Farrell (2011),
2011 ONSC 2160 (CanLII), 275 C.C.C. (3d) 128 (Ont. S.C.J.); B.R.L. v. Canada, [2000] F.C.J. No. 108 (T.D.);
R. v. Munoz, 2006 ABQB 901 (CanLII), [2006] A.J. No.1596 (Q.B.); R. v. Morrisey, 2000 SCC 39 (CanLII),
[2000] 2 S.C.R. 90; R. v. Nur, 2015 SCC 15 (CanLII), [2015] 1 S.C.R. 773; R. v. Sanchez, [1996] O.J. No.7
(C.A.); R. v. Milne, 1987 CanLII 38 (SCC), [1987] 2 S.C.R. 512; R. v. Keegstra, 1990 CanLII 24 (SCC), [1990]
3 S.C.R. 697; Gosselin v. Quebec (Attorney General), 2002 SCC 84 (CanLII), [2002] 4 S.C.R. 429; R. v.
Ferguson, 2008 SCC 6 (CanLII), [2008] 1 S.C.R. 96; R. v. Chan (2005), 2005 ABQB 615 (CanLII), 387 A.R.
123 (Q.B.); Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643; Cunningham v. Canada,
[1993] 1 S.C.R. 143; R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353; Canada (Attorney General) v.
Whaling, 2014 SCC 20 (CanLII), [2014] 1 S.C.R. 392; Ahmad v. Canada (Attorney General), [2015] O.J. No.
6277 (S.C.J.); and Canada (Attorney General) v. White, [2015] O.J. No.5977 (S.C.J.).
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[177] I consulted a number of cases on my own, including: Collin v. Canada (Solicitor General), 1982
CanLII 2982 (FC), [1983] 1 F.C. 496 (T.D.); Hay v. Canada (National Parole Board) (1985), 1985 CanLII 3638
(FC), 21 C.C.C. (3d) 408 (F.C.T.D.); Piche v. Canada (Solicitor General) (1989), 1989 CanLII 7246 (FCA), 47
C.C.C. (3d) 495 (F.C.A.); R. v. Downey, [1989] O.J. No. 436 (Dist. Ct.); Gogan v. Nova Scotia (Attorney
General), [2015] N.S.J. No. 544 (N.S.S.C.); Vancouver (City) v. Ward, 2010 SCC 27 (CanLII), [2010] 2 S.C.R.
28; Henry v. British Columbia (Attorney General), 2015 SCC 24 (CanLII), [2015] 2 S.C.R. 214; Hill v. British
Columbia (1997), 1997 CanLII 4136 (BC CA), 148 D.L.R. (4th) 337 (B.C.C.A.); Doucet-Boudreau v. Nova
Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 S.C.R. 3; United States of America v. Burns,
2001 SCC 7 (CanLII), [2001] 1 S.C.R. 283; Bell v. Wolfish, 441 U.S. 520 (1979); and Brown v. Plata, 563 U.S.
493 (2011).

Analysis

[178] This application is brought as a habeas corpus application, as well as an application under s. 24(1) of
the Charter, alleging violations of ss. 7, 9 and 12 of the Charter. It is instructive to examine how the courts
have applied the principles arising from these types of proceedings, as they relate to conditions in correctional
facilities.

a) Habeas Corpus

[179] The remedy of habeas corpus, with or without certiorari in aid, was traditionally applied simply to
determine the legality of a person’s detention. If the detention was unlawful, the court could order that the
detainee be released from custody.

[180] More recently, however, the remedy of habeas corpus has been applied to determine whether the
treatment of a prisoner, who is lawfully in custody, nevertheless is unlawful. Notionally, the detainee is held in a
“prison within a prison”. The Supreme Court of Canada has made it clear in a number of cases that habeas
corpus is available to challenge the terms of imprisonment if they are unlawful, and that it is not necessary to
order the detainee discharged from custody altogether. Rather, it can be ordered that the detainee’s terms of
imprisonment be altered so that the illegality is removed.

[181] Cases in the Supreme Court of Canada that have addressed the issue include R. v. Miller, supra; Morin
v. Canada, supra; R. v. Gamble, supra; May v. Ferndale Institution, supra; and Mission Institution v. Khela,
supra.

[182] The availability of habeas corpus is now enshrined in s.10(c) of the Charter. For that reason, among
others, the Supreme Court of Canada has made it clear that the remedy of habeas corpus is of fundamental
importance in Canada, and is not to be cut down because of the availability of other remedies, save and except in
exceptional circumstances: see May v. Ferndale Institution, and Mission Institution v. Khela, supra.

[183] Notwithstanding the expansive availability of habeas corpus that has developed in the last several
decades, the remedies available on habeas corpus are somewhat restricted. In appropriate circumstances, the
court can order the detainee released from custody. If the complaint is that the inmate is being unlawfully
denied a less restrictive detention status, or that his or her terms of imprisonment constitute unlawful restrictions
on his or her liberty, the court can order that the inmate be placed in an appropriate custodial regime, or can
order that the restrictive terms no longer apply to the inmate. Broader remedies, such as damages or intrusive
orders to make alterations in Charter-breaching conditions must flow from section 24(1) of the Charter, if at all.

b) The Canadian Charter of Rights and Freedoms

[184] Applications for habeas corpus are often combined with applications under s. 24(1) of the Charter. It
reads as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as the court
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considers appropriate and just in the circumstances.

[185] I will have more to say about section 24(1) later, but I simply pause to note that it constitutes an
extraordinarily broad grant of authority for a court to make orders of virtually any kind to rectify a Charter
breach. As broad as the provision is, a court must, of course, act judicially in making an order under s. 24(1),
and again I will have more to say about this later.

[186] The provisions of the Charter that are in issue here are sections 7, 9 and 12. They read as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[187] Section 7 of the Charter is the bedrock on which sections 8-14 of the Charter rest. This was discussed
by Justice Lamer, for the majority of the Supreme Court of Canada, in Reference Re Motor Vehicle Act, supra.

[188] The issue in that case was whether a provision in the British Columbia Motor Vehicle Act, that made an
offence one of absolute liability, and then imposed a minimum term of imprisonment, contravened section 7 of
the Charter. The court had little difficulty in holding that a provision that imposed liability for an offence,
without the possibility of any defence, and then imposed a mandatory term of imprisonment, affected a liberty
interest. The issue before the court was whether the deprivation of that liberty interest had been effected in
accordance with the principles of fundamental justice. The main debate was whether the principles of
fundamental justice were restricted to principles of natural justice, or whether they included basic substantive
rights. The court held that the principles of fundamental justice are to be found in the basic tenets of our legal
system, and held that the challenged provision of the Motor Vehicle Act violated s.7 of the Charter as the court
interpreted it.

[189] In discussing the principles arising under section 7 of the Charter, Lamer J. took the opportunity to
discuss the relationship between s. 7 and ss 8-14. At para. 27 he stated:

Sections 8-14, in other words, address specific deprivations of the “right” to life, liberty and
security of the person in breach of the principles of fundamental justice, and as such, violations of
s.7. They are designed to protect, in a specific manner and setting, the right to life, liberty and
security of the person set forth in s.7.

[190] At para. 28, he stated:

Sections 8-14 are illustrative of deprivations of those rights to life, liberty and security of the
person in breach of the principles of fundamental justice. For they, in effect, illustrate some of
the parameters of the “right” to life, liberty and security of the persons; they are examples of
instances in which the “right” to life, liberty and security of the person would be violated in a
manner which is not in accordance with the principles of fundamental justice. To put matters in a
different way, sections 7-14 could have been fused into one section, with inserted between the
words of section 7 and the rest of those sections the oft utilized provision in our statutes, “and
without limiting the generality of the foregoing (s.7) the following shall be deemed to be in
violation of a person’s rights under this section”.

[191] At para 61, he stated:

Sections 8-14 address specific deprivations of the “right” to life, liberty and security of the person
in breach of the principles of fundamental justice, and as such, violations of section 7. They are
therefore illustrative of the meaning, in criminal or penal law, of “principles of fundamental
justice”; they represent principles which have been recognized by the common law, international
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conventions and by the very fact of entrenchment in the Charter, as essential elements for a
system for the administration of justice which is founded upon a belief in the dignity and worth of
a human person and the rule of law.

[192] These passages have sometimes been interpreted to mean that the rights set forth in sections 8-14 of
the Charter are exclusive. In other words, if something is not captured by one of those provisions, there is no
room to capture it under section 7. To take an example that is relevant to this case, if it is alleged that treatment
or punishment constitutes a violation of s.12 of the Charter, and that allegation is not made out, it cannot be
contended, so the argument goes, that there is some residual authority to find that the impugned conduct violates
s.7.

[193] There is relatively little jurisprudence on the ambit of section 9 of the Charter, beyond the initial
decision or action to detain a person. Whether it deals with the conditions of detention, after the detainee has
actually been detained, is an open question. Professor Hogg in his text, Constitutional Law of Canada (5th
Edition) at page 49-9 states as follows:

Arbitrariness under section 9 is concerned with the adequacy of the standards prescribed by law
for a detention or imprisonment. Section 9 is not concerned with the nature or duration of the
detention or imprisonment. The question whether a detention or imprisonment is
disproportionately severe for the offence for which it was imposed is not an issue under s.9.
Under the Charter, the severity of a treatment or punishment is to be reviewed under s.12, which
prohibits “cruel and unusual treatment or punishment”.

[194] I am prepared to accept the view of Professor Hogg in this case, and will confine my consideration to
whether the treatment of the applicants constitutes a violation of s.12, and perhaps s.7. It is to s.12 that I will
now turn.

[195] For ease of reference, s. 12 of the Charter provides as follows:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[196] Many assume that the inspiration for this provision came from the Eighth Amendment to the United
States Constitution, which reads as follows:

Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual
punishments inflicted.

[197] However, the Eighth Amendment drew its own inspiration from the English Bill of Rights of 1688,
which included the following provision:

That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and
unusuall Punishments inflicted.

[198] Both the Bill of Rights and the Eighth Amendment are restricted in their terms to “punishments”. In
the United States, any complaint as to the conditions of imprisonment could not be maintained, particularly pre-
conviction imprisonment, unless those conditions could be said to be a form of punishment. Accordingly,
American cases interpreting the Eighth Amendment are of limited assistance.

[199] In Canada, the precursor to s.12 of the Charter was enacted as part of the Canadian Bill of Rights,
enacted in 1960. Section 2(b), which is still in force, provides as follows:

2. Every law of Canada shall, unless it is expressly declared by an Act of Parliament of Canada
that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as
not to abrogate or infringe or to authorize the abrogation, abridgement or infringement of any of

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the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall
be construed or applied so as to
(b) impose or authorize the imposition of cruel and unusual treatment or
punishment;

[200] Unlike the British and American versions, this provision includes the word “treatment” in addition to
“punishment”. This formulation was continued in section 12 of the Charter.

[201] By including the word “treatment” in s. 2(b) of the Canadian Bill of Rights and in s.12 of the Charter,
it can only be concluded that it was intended that these provisions go considerably beyond what is covered in the
British and American provisions. The word “treatment” is a word of broad import, and it will undoubtedly
include conditions of detention that do not, strictly speaking, amount to punishment. If treatment is cruel and
unusual it is prohibited by s.12 of the Charter, just as much as cruel and unusual punishment would be.

[202] There had originally been some debate as to the meaning of the term “cruel and unusual”. It was
unclear as to whether a particular treatment or punishment had to be both “cruel” and “unusual” in order to
contravene the provision. It now seems to be accepted that the words colour each other, and are to be considered
together as a compendious expression of a norm. As stated by Laskin C.J.C. in Cockriell v. The Queen, 1976
CanLII 12 (SCC), [1977] 2 S.C.R. 680, at pp. 689-690, in interpreting s. 2(b) of the Canadian Bill of Rights:

The various judgments in the Supreme Court of the United States, which I would not discount as
being irrelevant here, do lend support to the view that “cruel and unusual” are not treated there as
conjunctive in the sense of requiring a rigidly separate assessment of each word, each of whose
meanings must be met before they become effective against challenged legislation, but rather as
interacting expressions colouring each other, so to speak, and hence to be considered together as a
compendious expression of a norm. I think this to be a reasonable appraisal, in line with the duty
of the court not to whittle down the protections of the Canadian Bill of Rights by a narrow
construction of what is a quasi-constitutional document.

[203] This approach was essentially approved by Lamer J. in R. v. Smith, supra, at para.45, where he stated
“Abandoning the debate as to whether “cruel and unusual” should be read disjunctively or conjunctively, most
courts have clearly taken the Laskin approach as set out in Miller and Cockriell and have treated the phrase
“cruel and unusual” as a “compendious expression of a norm””.

[204] Most of the cases interpreting and applying s.12 of the Charter have to do with punishment rather than
treatment. A considerable number have to do with whether minimum terms of imprisonment violate s.12.

[205] Different words have been used to describe what may be considered to be cruel and unusual. They
include “so excessive as to outrage standards of decency”; “grossly disproportionate”; and “degrading and
inhuman”: see R. v. Smith, supra, paras.53 and 54.

[206] R. v. Smith involved a claim that a minimum sentence of seven years in custody for the importation of
a narcotic violated s.12 of the Charter. The Supreme Court of Canada, by a majority, held that it did. The case
dealt with the issue of “punishment” rather than “treatment”.

[207] At para. 44, Lamer J. referred with approval to an article by Professor Tarnopolsky, as he then was,
“Just Desserts or Cruel and Unusual Treatment or Punishment? Where do we look for Guidance?” (1978), 10
Ottawa L. Rev.1, and a summary of various tests that Professor Tarnopolsky proposed:

1. Is this punishment such that it goes beyond what is necessary to achieve a legitimate
penal aim?
2. Is it unnecessary because there are adequate alternatives?
3. Is it unacceptable to a large segment of the population?

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4. Is it such that it cannot be applied on a rational basis in accordance with ascertained or
ascertainable standards?
5. Is it arbitrarily imposed?
6. Is it such that it has no value in the sense of some social purpose such as reformation,
rehabilitation, deterrents or retribution?
7. Is it in accord with public standards of decency or propriety?
8. Is the punishment of such a character as to shock general conscience or as to be
intolerable in fundamental fairness?
9. Is it unusually severe and hence degrading to human dignity and worth?

[208] At para. 45, Lamer J. noted that an overview of the cases decided under s.12 reveals that these tests are
those substantially resorted to.

[209] While I noted earlier that “treatment” is a broader word than “punishment”, and would undoubtedly
incorporate the conditions of pre-trial incarceration, nevertheless the same prohibitory words “cruel and
unusual” are used. It seems to me that the meaning to be given to the words “cruel and unusual” may differ
somewhat depending on whether it is treatment or punishment that is being considered. To some extent, the
specific circumstances of the individual must be considered in determining whether that person is being treated
in a cruel and unusual manner. The position of a pre-trial detainee, as well as an immigration detainee, neither
of whom have been convicted of any crime, is significantly different than one who has been convicted of a crime
and is serving a sentence. Different conditions may well apply depending on the circumstances. Whether they
are necessarily cruel and unusual may depend, to some extent, on whether those differences are significant.

[210] There is some controversy as to the use that may be made of international treaties and other recognized
standards respecting custodial conditions. Some of them have been adopted by Canada, and some have not.

[211] One such standard, that has been adopted by Canada, is the Standard Minimum Rules for the
Treatment of Prisoners, promulgated by the United Nations. Two of its provisions, which have relevance here,
are:

8. The different categories of prisoners shall be kept in separate institutions or parts of

institutions taking account of their sex, age, criminal record, the legal reason for their detention
and the necessities of their treatment. Thus,
b. untried prisoners shall be kept separate from convicted prisoners;

9 (1) where sleeping accommodation is individual cells or rooms, each prisoner shall occupy by
night a cell or room by himself. If for special reasons, such as temporary overcrowding, it
becomes necessary for the central prison administration to make an exception to this rule, it is not
desirable to have two prisoners in a cell or room.

[212] The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules),
adopted in 2015, include the following provisions:

RULE 1 All prisoners shall be treated with the respect due to their inherent dignity and value as
human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture
and other cruel, inhuman or degrading treatment or punishment, for which no circumstances
whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service
providers and visitors shall be ensured at all times.
RULE 3 Imprisonment and other measures that result in cutting off persons from the outside
world are afflictive by the very fact taking from these persons the right of self-determination by
depriving them of their liberty. Therefore the prison system shall not, accept as incidental to

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justifiable separation or the maintenance of discipline, aggravate the suffering inherent in such a
situation.
RULE 111
2. Unconvicted prisoners are presumed to be innocent and shall be treated as such.
RULE 112 Untried prisoners shall be kept separate from convicted prisoners.
RULE 113 Untried prisoners shall sleep singly in separate rooms, with the reservation of
different local custom in respect of the climate.

[213] There are many other international standards, which it is unnecessary to review. Many contain
provisions that are similar to those I have just quoted.

[214] The only standard drawn to my attention that specifically deals with lockdowns is the Standard on
Treatment of Prisoners contained within the Criminal Justice Section Standards of the American Bar
Association. Standard 23-3.9 “Conditions during lockdown” includes the following:

a) The term “lockdown” means a decision by correctional authorities to suspend activities in

one or more housing areas of a correctional facility and to confine prisoners to their cells
or housing areas.
b) A lockdown of more than one day should be imposed only to restore order; to address an
imminent threat of violence, disorder, or serious contagion; or to conduct a comprehensive
search of the facility.

[215] It appears to be common ground that international standards, whether they be binding on Canada or
not, do not themselves give rise to any avenue of relief in a Canadian court. The parties differ on whether they
can be used for any purpose, and specifically as an aid to interpreting the rights set out in the Canadian Charter
of Rights and Freedoms. In my view, international standards can be used by a court as an aid in interpreting the
rights conferred by the Charter, but that some caution must be observed.

[216] In Bacon v. Surrey Pre-trial Services Centre, supra, Justice McEwan noted, at para. 272 that there are
numerous published articulations of a general nature that prisoners should be treated with respect, and in a
manner that acknowledges the inherent dignity of the human person. At para. 274, he quoted the following
passage from the judgment of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1 (CanLII), [2002] 1 S.C.R. 3, at para.60:

International treaty norms are not, strictly speaking, binding in Canada unless they have been
incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian
Constitution, the courts may be informed by international law. Our concern is not with Canada’s
international obligations qua obligations; rather, our concern is with the principles of fundamental
justice. We look to international law as evidence of these principles and not as controlling in
itself.

[217] In Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6 (CanLII), [2010] A.J. No.31 (Q.B.),
Marceau J., commencing at para. 938 considered the applicability of international standards in interpreting and
applying the Charter. In particular, he considered the Standard Minimum Rules for the Treatment of Prisoners
(“SMR”). At para. 942, he stated “The SMRs are guidelines only, not rules. They will be considered within the
context of the test under s.12: whether the treatment outrages standards of decency and are grossly
disproportionate.”

[218] Initiatives within the international community denouncing the death penalty were referred to at some
length by the Supreme Court of Canada in United States of America v. Burns, supra, where the court had to
determine whether the extradition of two fugitives from justice to the United States, without assurances from the

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American Government that the death penalty would not be imposed, contravened the Canadian Charter of
Rights and Freedoms. The court held that it did.

[219] At para. 79, the court referred to the judgment of Justice Lamer in Re BC Motor Vehicle Act, supra,
where he said international conventions could be used as an aid to the interpretation of the Charter.

[220] Commencing at para. 85, the court referred to a number of international reports and conventions
relating to the death penalty. At para. 92, the court stated:

The existence of an international trend against the death penalty is useful in testing our values
against those of comparable jurisdictions. This trend against the death penalty supports some
relevant conclusions. First, criminal justice, according to international standards, is moving in the
direction of abolition of the death penalty. Second, the trend is more pronounced among
democratic states with systems of criminal justice comparable to our own.

[221] From these cases, I conclude that reference to international standards is permissible, but their
usefulness is limited. In the final analysis, the rights enshrined in our Charter reflect the consensus of
Canadians as to what those rights should be, and the interpretation of those rights must be grounded in a
Canadian perspective. At most, the international standards, assuming there is a consensus, can only assist as a
guidepost as to what standards should be recognized and applied by a Canadian court. However, they are not
determinative.

[222] An example that is relevant to the case at hand is the standard relating to double bunking. Clearly, the
Standard Minimum Rules for the Treatment of Prisoners contemplate that there should be no double-bunking.
That is obviously not a standard that is used or applied at Maplehurst. That does not mean, however, that
double-bunking, standing alone, will violate the Charter.

[223] Different courts have considered the issue of double-bunking. To date, no court has ruled that double-
bunking, by itself, is a constitutional violation: see Collin v. Canada (Solicitor General), supra, and Piche v.
Canada (Solicitor General), supra. The Supreme Court of the United States, in Bell v. Wolfish, supra, also held
that double-bunking does not constitute a violation of the Eighth Amendment. Fundamentally, the court held
that double-bunking did not amount to “punishment” for pre-trial detainees. However, the court noted that
inmates generally are locked into their rooms from 11:00 p.m. to 6:30 a.m. and for brief periods during the
afternoon and evening headcounts. During the rest of the day, they may move about freely between their rooms
and the common areas. Accordingly, they are required to spend only seven or eight hours each day in their
rooms, during which all or most of the time they are presumably sleeping. During the remainder of the time
they are free to move between their rooms and the common area.

[224] In the case I recently referred to, Trang, Marceau J. at para. 1005 stated:

Rather, the courts have adopted the approach of considering the question of double-bunking as a
significant circumstance to be assessed in light of other relevant circumstances including the
availability of exercise, cell amenities and floor space, time spent in cells and length of
incarceration.

[225] In my view, this is the appropriate approach. The international standard prescribes an ideal. It is a
starting point, and nothing more. It reflects what would ordinarily be regarded as common sense: to the extent
possible, people should not be cooped up in close quarters with the same person all the time, without any choice
in the matter. Apart from the fact that one may not get along with the particular person, it is inevitable that being
at close quarters will potentially require putting up with the other person’s moods, hygiene or lack thereof, and
disposition, without any opportunity for escape during the periods when the cells doors are locked.

[226] There are cases that have considered whether lockdowns and similar phenomena, such as segregation,
or solitary confinement, constitute violations of the Charter. One of the earliest was McCann v. Canada, supra,
which was actually an application in which reliance was placed on s.2(b) of the Canadian Bill of Rights. The
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Canadian Charter of Rights and Freedoms was not yet in force. Heald J. held that solitary confinement
constituted cruel and unusual treatment or punishment contrary to s. 2(b) of the Canadian Bill of Rights.

[227] Other cases in which similar issues have been considered include Bacon v. Surrey Pre-trial Service
Centre, supra; Trang v. Alberta (Edmonton Remand Centre), 2006 ABQB 834 (CanLII), [2006] A.J. No.1473
(Q.B.); Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6 (CanLII), [2010] A.J. No.31 (Q.B.); R. v.
Jordan, supra; R. v. Olson, supra; R. v. Azija, supra; R. v. Morrissey, supra; Munoz v. Alberta (Edmonton
Remand Centre), supra; Soenen v. Edmonton Remand Centre, supra; R. v. Boone, supra; and R. v. Sanchez,
supra.

[228] In some cases relief was granted and in some cases it was not. In some cases the issue was segregation
or solitary confinement, and in some cases there were periods of lockdown with corresponding deprivations of
one privilege or another; similar, in some respects, to this case.

[229] In cases where solitary confinement or segregation was used with a rational explanation for its use, the
courts were not inclined to find a violation of the Charter. A good example is Olson.

[230] Clifford Olson was, before his death, one of the most reviled criminals in Canadian history. He had
murdered eleven children and was sentenced to life in prison. He had a long history of protective custody
because of his unpredictable behaviour with other inmates, and he was at risk in the general population. He
spent 23 hours of each day in his cell and the other hour in the exercise facilities of the prison. However, he
enjoyed all of the other privileges enjoyed by prisoners save only those that followed from the nature of his
confinement. He made no complaint about the nature of the place or cleanliness or the lack of food or
reasonable comfort, nor he did he complain that he was arbitrarily denied any privileges ordinarily enjoyed by
other inmates.

[231] Justice Brooke, for the Court of Appeal, held that there was no violation of s.12 of the Charter. He
noted that Mr. Olson was a dangerous man, having been convicted of eleven counts of first degree murder and
had a lengthy criminal record. He noted that those charged with the administration of prisons had very good
reason to fear for the maintenance of order and discipline in the institution. There was good reason to fear for
the protection of the staff and other inmates and to fear that Mr. Olson’s life may be taken if he were to be
allowed into the general population. Thus, as far as Mr. Olson was concerned, his treatment did not constitute
cruel and unusual treatment or punishment.

[232] Another good example is R. v. Boone. Mr. Boone had been segregated in solitary confinement for
more than a year. The superintendent of the prison took the position that Mr. Boone’s confinement in
administrative segregation was necessary both for the protection of other inmates and for the protection of Mr.
Boone. Mr. Boone was HIV positive, and he had a pre-disposition towards having sexual relations with other
male prisoners.

[233] Justice Blair, for the Court of Appeal, noted that transfer to solitary confinement is a serious
deprivation of liberty and security of the person. At para. 3, he stated “There has been a growing recognition
over the last half-century that solitary confinement is a very severe form of incarceration, and one that has a
lasting psychological impact on prisoners.” Nevertheless, Justice Blair held that there was no violation of the
Charter in the circumstances. He held that the application judge was properly satisfied that the administrative
segregation of Mr. Boone was lawful and necessary to ensure the safety of other inmates, and, in particular, any
cellmate placed with him.

[234] The point that is made in these cases is that the conditions of incarceration must be judged based, at
least in part, on the reasons why they are imposed. In cases where they are imposed because of legitimate safety
and security considerations, the imposed condition cannot be said to be cruel and unusual. However, in other
circumstances, that may not be so.

[235] In Bacon v. Surrey Pre-trial Services Centre, supra, an inmate had been placed in “administrative
segregation”, a form of solitary confinement. He was permitted one hour out of his cell per day, which was also
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his opportunity to shower and to contact counsel.

[236] One of the main justifications for treating the inmate this way was described by McEwan J. at para.
269 as follows:

Among the justifications offered by the respondent for confining the petitioner in a cell made for
punishment – for a period longer than the maximum term imposed as punishment, in
circumstances that included virtually the same deprivations (down to pens and nail clippers, and
asthma inhalers) as those imposed on inmates who are being punished – is that resources are
straitened. That can hardly be an excuse, however, for treating one presumptively innocent
inmate worse than another. It is, in fact, a compelling reason why measures to compensate for the
specific hardships related to the resource limitation of the physical plant ought to have been
implemented.

[237] At para. 353, McEwan J. concluded as follows:

The respondent is in breach of s.12 of the Charter in arbitrarily placing the petitioner in solitary
confinement, in failing to appropriately mitigate his circumstances in solitary confinement, and in
unlawfully denying him the other rights to which he was entitled, significantly threatening his
psychological integrity and well-being. These impositions collectively amount to cruel and
unusual treatment.

[238] In the 2006 decision of Trang v. Alberta (Edmonton Remand Centre), the complaint was that the
treatment of inmates while they were being transported between correctional institutions breached their rights
under ss.7 and 12 of the Charter. The inmates were handcuffed and shackled while transported, and the
transport compartments were unpadded, cramped and without sufficient headroom. They complained that the
conditions of their incarceration during such trips were inhumane, degrading and unnecessary. Justice Marceau
held that the conditions did not violate s. 12 of the Charter, in that they were not so excessive that they outraged
standards of decency, nor were they grossly disproportionate.

[239] Notwithstanding the conclusion on s. 12, Marceau J. held that s. 7 of the Charter was violated. At
para. 85, he stated “while some “treatment” like torture, will fall within s. 12 as disproportionate, prison
conditions that do not “shock the conscience” may still breach principles of fundamental justice other than
proportionality.”

[240] At para. 132, Justice Marceau concluded that it was only the safety of escort officers that was
considered when the then compartments were implemented. No systemic or comprehensive study of inmate
safety concerns were undertaken. He held that this approach was arbitrary, in that it almost entirely ignored
inmate safety, and was irrational, because its emphasis on security concerns was not consistent. He held that the
respondents did not seriously turn their minds to occupant safety issues until the court proceedings had been
commenced.

[241] In the 2010 decision in Trang v. Alberta (Edmonton Remand Centre), Marceau J. considered an
allegation that remanded inmates were confined to double-bunk cells for 18-23 hours per day. The cells
provided inadequate privacy for washroom facilities, inadequate for two persons and only one table and chair.
Inmates took meals in their cells and many were on units with rotating lockdowns, so that they infrequently had
time outside their cells. There were other complaints.

[242] Justice Marceau held that the conditions of incarceration experienced by the applicants were
intolerable and degrading to human dignity and worth, and thus violated s. 12 of the Charter.

c) Have the applicants’ Charter rights been infringed?

[243] I will assume, without deciding, that s. 9 of the Charter has no application, as argued by the
respondents. It is unnecessary for my decision to determine whether s. 9 of the Charter has been violated.
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[244] Similarly, I will assume, without deciding, that s. 7 of the Charter need not be considered if this case
otherwise falls under s. 12. I will assume, again without deciding, that as contended by the respondents, if a
violation of s. 12 is not found there is no residual right under s. 7 that is left to be adjudicated. If, of course, a
violation of s. 12 is found, it is not necessary to reach s. 7.

[245] Have the applicants’ rights under s. 12 been violated? The answer is yes.

[246] For the time that is covered by this application, the relevant units at Maplehurst have been locked
down for about 50 per cent of the time. Indeed, in 2015 they were locked down for 55 per cent of the time.

[247] During the times when the units are locked down, inmates are held in their cells for 24 hours per day
and are only let out on occasion, for short periods, to attempt to take showers and make phone calls. It was
largely uncontradicted by the respondents that during such periods, it is difficult, if not impossible, for inmates
to have sufficient time or facilities to make phone calls and have showers.

[248] While inmates are being locked down, they are required to spend their time entirely with their
cellmates with whom they are confined involuntarily. They do not get to choose their cellmates. Whether or not
they like them or get along with them, they must spend all of their time with them, and only them, and must put
up with their idiosyncrasies, and their hygiene or lack of hygiene.

[249] It is not to be forgotten that Mr. Nguyen and Mr. Ogiamien are not in Maplehurst because they have
been convicted of any offence. Mr. Nguyen has not yet been tried, and is presumed innocent. Mr. Ogiamien has
spent three years in Maplehurst, not because he has been convicted of any offence, but because he is being held
there at the direction of the Federal immigration authorities.

[250] There are at least two international standards that are not being observed here. First, Messrs.
Ogiamien and Nguyen, not being convicted criminals, are forced to share their time in incarceration with
convicted offenders. Second, they are double-bunked. Furthermore, while not necessarily an infringement of
any international standard, they are being held in a maximum security facility even though they have not been
convicted of any offence.

[251] As I observed earlier, the non-observance of an international standard does not, standing alone, mean
that s. 12 of the Charter has been violated. However, it is a starting point. Other features of detention, that go
along with the non-observance of international standards, will increase the concern.

[252] Here the concern is magnified. The conditions of detention during lockdowns are very close to
segregation or solitary confinement. In some ways they are worse. The inmate is holed up with another inmate
not of his choosing. The actual periods of confinement for 24 hours a day are entirely arbitrary, and
unpredictable, both as to timing and length.

[253] The timing and length of the lockdown periods are dependent on something that is equally irrational
and unpredictable, namely, lack of staff. This is, or should be, entirely within the control of the government.
The government knows how many people it requires to staff the units in the correctional facility, and it is within
their control to ensure that sufficient staff are available.

[254] What is extraordinary about this is that the government has known about the problem since at least
2002 when Nordheimer J. identified it in R. v. Jordan, supra.

[255] The respondents called little evidence to dispute the effects of lockdowns that were deposed to by the
applicants and by other deponents of affidavits. Many of the complaints would be intuitively obvious in any
event, but they included increased stress; restrictions on visits from family and friends; restrictions on phone
calls; restrictions on showers; lack of stimuli; poor hygiene, both of the inmates themselves and stemming from
forced association with cellmates; difficulty of co-existing with cellmates; lack of exercise; insufficient light;
restrictions on contact with counsel; and reduction or elimination of programs.

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[256] The deponents of affidavits filed by the respondents were reluctant to agree that there is hardship on
inmates when lockdowns occur. Mr. Marchegiano, for example, simply would not agree or disagree that there is
hardship. He did acknowledge that there is an adverse reaction from inmates while lockdowns are in place.
There is an increase in noise and banging on cell walls and bars. He acknowledged that visits and programs are
limited or cancelled. Crystal Miller, the Manager of Health Care Services, took the position that lockdowns will
impact different people differently. However, she did at least acknowledge that there could be negative impacts
on some people. She said the respondents do not have a mechanism to monitor negative impacts.

[257] The correctional authorities attempt, as best they can, to ameliorate the impact of lockdowns when
they occur. However, it is also clear from the evidence that those attempts, by and large, are ineffective. If a
lockdown occurs, an inmate will be locked in his cell for 24 hours per day. He will be let out, if at all, for only a
very brief period. The timing and duration of a lockdown is unpredictable.

[258] As I noted earlier, a determination of whether s. 12 is violated will depend on the facts in any
particular case. In some respects, it will be impacted by the particular circumstances of the inmate, as in Olson
and Boone, supra. In some cases, it will depend on whether the conditions of incarceration arise from rational
determinations made for legitimate reasons, such as safety and security concerns.

[259] In this case, the applicants have not been convicted of any criminal offence. Mr. Nguyen has been
charged, but not convicted. Mr. Ogiamien is an immigration detainee. They are not in the position of Mr. Olson
or Mr. Boone, whose conduct contributed to their conditions of incarceration. The motivation for the
lockdowns, where they are caused by staffing shortages, do not arise from legitimate safety and security
concerns. Rather, they arise because the Ministry has been unwilling or unable to have sufficient staff available
so that lockdowns for staffing reasons do not occur.

[260] Charter violations cannot be explained or condoned by considerations of expediency or lack of

resources. I noted earlier the statement by Justice McEwan in Bacon v. Surrey Pre-trial Services Centre¸ at para.
269, to that effect.

[261] Expediency is not a defence to a Charter violation, whether through reliance on s.1 of the Charter or
otherwise. In Reference Re Motor Vehicle Act, supra, Lamer J. stated at para. 85:

Administrative expediency, absolute liability’s mains supportive argument, will undoubtedly

under s. 1 be invoked and occasionally succeed. Indeed, administrative expediency certainly has
its place in administrative law. But when administrative law chooses to call in aid imprisonment
through penal law, indeed sometimes criminal law and the added stigma attached to a conviction,
exceptional, in my view, will be the case where the liberty or even the security of the person
guaranteed under s. 7 should be sacrificed to administrative expediency. Section 1 may, for
reasons of administrative expediency, successfully come to the rescue of an otherwise violation of
s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak
of war, epidemics, and the like.

[262] In Singh v. Canada (Minister of Employment and Immigration), supra, Wilson J. said “Certainly the
guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient
to do so.”

[263] These observations apply, with equal force, here. The Government of Ontario has had it within its
power to fix the problem since at least 2002, at least when the problem was identified by Nordheimer J. in
Jordan, and has not chosen to invest sufficient resources so that the problem of lockdowns caused by staff
shortages can be alleviated. I am not persuaded that the terms of the applicable collective agreement prevent the
government from dealing with the issue.

[264] I recognize that the problem was exacerbated during collective bargaining in 2015. However, the
problem existed before collective bargaining commenced, and still exists after collective bargaining was
completed.
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[265] As noted earlier, I was advised that the government considered whether the actions of the employees
and OPSEU constituted an illegal strike contrary to the Labour Relations Act. Consideration was given to the
issue, but nothing was done. I can well understand why it was likely decided to take no step that might have
inflamed the situation, but it is no answer to say that the constitutional rights of the applicants should be
sacrificed as a result. Further, and in any event, to the extent that the constitutional violations are caused or
contributed to by the Government’s own employees, in this case members of OPSEU, the Government as their
employer is legally responsible for their actions. If those actions were instigated or encouraged by OPSEU, the
question of whether any contribution to any remedy of damages can be sought from OPSEU is not before me.

[266] I accept at face value the evidence tendered on behalf of the Ministry to the effect that steps are now
being taken to hopefully increase the staffing levels so that lockdowns and their frequency might be alleviated in
the future. However, this does nothing to cure the violations that have occurred in relation to Mr. Ogiamien and
Mr. Nguyen since each of them was admitted to Maplehurst.

[267] For the foregoing reasons, I conclude that the rights of Mr. Ogiamien and Mr. Nguyen under s. 12 of
the Charter have been violated, by virtue of the lockdowns to which they have been subjected since their
incarceration at Maplehurst, and the adverse conditions to which they have been subjected during those
lockdowns. The actual lockdowns that give rise to the violations are those that occurred because of the staff
shortages. However, those lockdowns were exacerbated by the additional lockdowns that occurred for safety
and security reasons. In other words, if the only lockdowns that occurred were on account of staff shortages,
they would have constituted a violation of s.12 because of their frequency and duration. Because of the
additional lockdowns that occurred, the impact of the staff shortage lockdowns was greater.

[268] I have little difficulty in concluding that the treatment of the applicants, in their totality, was so
excessive as to outrage standards of decency; was disproportionate; and was degrading. Thus, it violated s. 12 of
the Charter.

[269] I am far from saying that every lockdown caused by staff shortages will give rise to a violation of s.
12. I hold only that the sustained period of frequent, unpredictable lockdowns for these applicants gives rise to a
violation where they have suffered the adverse impacts reviewed in the evidence. In the case of Mr. Ogiamien,
who is an immigration detainee and is not serving any sentence, these have occurred since April 26, 2013, a
period of three years. In the case of Mr. Nguyen, who is a remand detainee, these have occurred since May 8,
2015, a period of one year.

[270] Having found a violation of s.12 of the Charter, I will now turn to an appropriate remedy.

d) What is the appropriate remedy?

[271] The authority to grant remedies for Charter violations is found in s. 24(1) of the Charter. For ease of
reference, I will reproduce it again:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as the court
considers appropriate and just in the circumstances.

[272] This provision is extraordinarily broad, and is apparently without limit. However, the Supreme Court
of Canada has given guidance as to the scope of the court’s remedial power, and the appropriate limits to be
placed on remedial orders, in three cases: Doucet-Boudreau v. Nova Scotia (Minister of Education), supra;
Vancouver (City) v. Ward, supra; and Henry v. British Columbia (Attorney General), supra.

[273] In Doucet-Boudreau, a judge of the Supreme Court of Nova Scotia had found that the Province of
Nova Scotia had violated s. 23 of the Charter, in that it had inadequately provided for French-language
educational facilities. The violation had not been remedied for many years, notwithstanding that the Province
was well aware of the delinquency. The Province had simply not provided sufficient funding and facilities, and

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apparently treated s. 23 rights as if they were but one more demand for educational programs and facilities and
failed to accord them due priority as constitutional rights.

[274] LeBlanc J. directed the Province of Nova Scotia to build schools and provide programs by more or less
specific deadlines. He retained jurisdiction to hear reports from the respondents on their compliance.

[275] On the appeal to the Nova Scotia Court of Appeal, the Province did not challenge the finding that s. 23
of the Charter had been violated, and did not challenge the order directing compliance. The only part of the
order that was challenged was the retention of jurisdiction to hear reports from the Province and monitor
compliance. The majority of the Court of Appeal held that the trial judge, having decided the issue between the
parties, had no further jurisdiction to remain seized of the case. On appeal to the Supreme Court of Canada, the
Court of Appeal’s decision was overturned, and LeBlanc J.’s order was restored.

[276] The judgment of the majority of the Supreme Court of Canada was delivered by Iacobucci and Arbour
JJ. At para. 23 they stated “It is well accepted that the Charter should be given a generous and expansive
interpretation and not a narrow, technical or legalistic one.” At para. 24 they stated “The requirement of a
generous and expansive interpretative approach holds equally for Charter remedies as for Charter rights.” At
para. 25 they stated:

Purposive interpretation means that remedies provisions must be interpreted in a way that
provides “a full, effective and meaningful remedy for Charter violations” since “a right, no
matter how expansive in theory, is only as meaningful as the remedy provided for its breach”
(Dunedin, supra, at paras. 19-20). A purposive approach to remedies in a Charter context gives
modern vitality to the ancient maxim ubi jus, ibi remedium: where there is a right, there must be a
remedy. More specifically, a purposive approach to remedies requires at least two things. First,
the purpose of the right being protected must be promoted: courts must craft responsive
remedies. Second, the purpose of the remedies provision must be promoted: courts must craft
effective remedies.

[277] Having stated the broad proposition that the remedial power conferred by s.24(1) of the Charter is
very broad, and that the court must exercise its jurisdiction to grant responsive and effective remedies, the court
went on to recognize that there are limits to the remedies that a court ought to grant. At para. 34 Iacobucci and
Arbour JJ. stated “In other words, in the context of constitutional remedies, courts must be sensitive to their role
as judicial arbiters and not fashion remedies which usurp the role of the other branches of governance by taking
on tasks to which other persons or bodies are better suited.”

[278] Commencing at paragraph 52, the court then turned to what is meant in s. 24(1) by the words
“appropriate and just in the circumstances”. The court’s conclusions are reflected in paras.55-59, as follows:

55. First, an appropriate and just remedy in the circumstances of a Charter claim is one that
meaningfully vindicates the rights and freedoms of the claimants. Naturally, this will take
account of the nature of the right that has been violated and the situation of the claimant. A
meaningful remedy must be relevant to the experience of the claimant and must address the
circumstances in which the right was infringed or denied. An ineffective remedy, on one which
was “smothered in procedural delays and difficulties”, is not a meaningful vindication of the right
and therefore no appropriate and just (see Dunedin, supra,at para. 20, McLachlin C.J. citing
Mills, supra, at p. 882, per Lamer J. (as he then was)).
56. Second, an appropriate and just remedy must employ means that are legitimate within the
framework of our constitutional democracy. As discussed above, a court ordering a Charter
remedy must strive to respect the relationships with and separation of functions among the
legislature, the [page 38] executive and the judiciary. This is not to say that there is a bright line
separating these functions in all cases. A remedy may be appropriate and just notwithstanding
that it might touch on functions that are principally assigned to the executive. The essential point
is that the courts must not, in making orders under s. 24(1), depart unduly or unnecessarily from
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their role of adjudicating disputes and granting remedies that address the matter of those
disputes.
57. Third, an appropriate and just remedy is a judicial one which vindicates the right while
invoking the powers of a court. It will not be appropriate for a court to leap into the kinds of
decisions and functions for which its design and expertise are manifestly unsuited. The capacities
and competence of the courts can be inferred, in part, from the tasks with which they are normally
charged and for which they have developed procedures and precedent.
58. Fourth, an appropriate and just remedy is one that, after ensuring that the right of the
claimant is fully vindicated, is also fair to the party against whom the order is made. The remedy
should not impose substantial hardships that are unrelated to securing the right.
59. Finally, it must be remembered that s. 24 is part of a constitutional scheme for the vindication
of fundamental rights and freedoms enshrined in the Charter. As such, s. 24, because of its broad
language and the myriad of roles it may play in cases, should be allowed to evolve to meet the
challenges and circumstances of those cases. That evolution may require novel and creative
features when compared to traditional and historical remedial practice because tradition and
history cannot be barriers to what reasoned and compelling notions of appropriate and just
remedies demand. In short, the judicial approach to remedies must remain flexible and
responsive to the needs of a given case.

[279] In the circumstances of the case before it, the Supreme Court of Canada concluded that it was
appropriate for LeBlanc J. to grant the expansive remedy that he did, and to remain seized in order to ensure that
the remedy he ordered was implemented. The court considered that in view of the province’s delay in giving
recognition to its obligations under s. 23 of the Charter, and in view of the practicalities of the situation,
including the need to commence new proceedings if LeBlanc J. did not remain seized, the Court held that
remaining seized was appropriate. The Court held that the remedy did not depart unduly or unnecessarily from
the role of the courts. While a reporting order may not be common in the context of Charter remedies, the
reporting order was judicial in the sense that it called on the functions and powers known to courts. The order
was not inconsistent with the judicial function. There was never any suggestion that the court would improperly
take over the detailed management and coordination of construction projects.

[280] The availability of damages as a Charter remedy was examined in Vancouver (City). In that case, the
respondent, Mr. Ward, sued for the violation of his right to be free from unreasonable search and seizure contrary
to s.8 of the Charter. He had been mistakenly arrested and strip searched, and his car was impounded. He was
released several hours later. The trial judge held that the strip search and the vehicle seizure violated Mr. Ward’s
right to be free from unreasonable search and seizure and awarded him $100 for the vehicle seizure, and $5,000
for the strip search. The British Columbia Court of Appeal dismissed an appeal. The Supreme Court of Canada
set aside the award of damages for the seizure of the car, but upheld the $5,000 award for the Charter breach
arising out of the strip search.

[281] Chief Justice McLachlin held that the award of damages was appropriate. Her conclusion is
summarized in paragraph 4 as follows:

I conclude that damages may be awarded for a Charter breach under s. 24(1) where appropriate
and just. The first step in the inquiry is to establish that a Charter right has been breached. The
second step is to show why damages are a just and appropriate remedy, having regard to whether
they would fulfill one or more of the related functions of compensation, vindication of the right,
and/or deterrence of future breaches. At the third step, the state has the opportunity to
demonstrate, if it can, that countervailing factors defeat the functional considerations that support
a damage award and render damages inappropriate of unjust. The final step is to assess the
quantum of the damages.

[282] At para. 20, she summarized the holding in Doucet-Boudreau:

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Briefly, an appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms
of the claimants; (2) employ means that are legitimate within the framework of our constitutional
democracy; (3) be a judicial remedy which vindicates the right while invoking the function and
powers of a court; and (4) be fair to the party against whom the order is made.

[283] The court approached the issue by considering four steps:

a) Step 1 – proof of a Charter breach;

b) Step 2 – Functional justification of damages;
c) Step 3 – Countervailing factors;
d) Step 4 – Quantum of s. 24(1) damages.

[284] A Charter breach had been conceded, so the court moved to the second step, namely, to consider
whether damages serve a useful function or purpose. At para. 25, Chief Justice McLachlin stated:

I therefore turn to the purposes that an order for damages under s. 24(1) may serve. For damages
to be awarded, they must further the general objects of the Charter. This reflects itself in three
interrelated functions that damages may serve. The function of compensation, usually the most
prominent function, recognizes that the breach of an individual’s Charter rights may cause
personal loss which should be remedied. The function of vindication recognizes that Charter
rights must be maintained, and cannot be allowed to be whittled away by attrition. Finally, the
function of deterrence recognizes that damages may serve to deter future breaches by state
actors.

[285] In the circumstances of the case before it, the court held that damages would fulfill the purposes of
compensation, vindication and deterrence. In terms of deterrence, McLachlin C.J. stated at para. 29 “Similarly,
deterrence as an object of Charter damages is not aimed at deterring the specific wrongdoer, but rather at
influencing government behaviour in order to secure state compliance with the Charter in the future.”

[286] The court then moved to the third step, that is, to determine whether there were any countervailing
factors that would render s. 24(1) damages inappropriate or unjust. Specifically, the court considered the
existence of alternative remedies and concerns for good governance.

[287] As to alternative remedies, the court considered whether damages in tort might be appropriate and
whether a declaration of a Charter breach would be sufficient. As to good governance, the court noted that
insofar as s. 24(1) damages deter Charter breaches, they promote good governance. In some situations,
however, Charter damages may interfere with good governance such that damages should not be awarded unless
the state conduct meets a minimum threshold of gravity. The court discussed one example where a government
acts pursuant to a law that is ultimately struck down and declared invalid. In such a case, McLachlin C.J. stated
at para. 39, that “The rule of law would be undermined if governments were deterred from enforcing the law by
the possibility of future damage awards in the event the law was, at some future date, to be declared invalid.”
Such considerations were not applicable in the case at hand, and the court concluded that Charter damages were
available.

[288] At the last step, the court considered the quantum of damages. As a starting point, the court noted that
under s. 24(1), a remedy must be “appropriate” and “just”.

[289] At para. 52, McLachlin C.J. stated:

A principal guide to the determination of quantum is the seriousness of the breach, having regard
to the objects of s. 24(1) damages. The seriousness of the breach must be evaluated with regard
to the impact of the breach on the claimant and the seriousness of the state misconduct: see, in the
context of s. 24(2), R. v. Grant, 2009 SCC 32 (CanLII), [2009] 1 S.C.R. 353. Generally speaking,

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the more egregious the conduct and the more serious the repercussions on the claimant, the higher
the award for vindication or deterrence will be.

[290] At para. 57, she stated:

To sum up, the amount of damages must reflect what is required to functionally serve the objects
of compensation, vindication of the right and deterrence of future breaches, insofar as they are
engaged in a particular case, having regard to the impact of the breach on the claimant and the
seriousness of the state conduct. The award must be appropriate and just from the perspective of
the claimant and the state.

[291] In the final analysis, after considering all of the appropriate factors, the court concluded that the $5,000
damages award was appropriate.

[292] In the third case, Henry, the court had the opportunity to consider the issue of “countervailing factors”
that may attenuate the availability of a damages award for a Charter breach.

[293] In that case, Mr. Henry alleged that he had been improperly convicted and sentenced to an indefinite
period of incarceration after being declared a dangerous offender, and that the reason for his unlawful conviction
was the failure of the Crown to make disclosure, contrary to his Charter rights as recognized in R. v.
Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

[294] The British Columbia Court of Appeal held that Mr. Henry was not entitled to seek Charter damages
for non-malicious acts and omissions of Crown counsel. The court held that Mr. Henry’s cause of action was
analogous to one of malicious prosecution, which required malice on the part of Crown actors in order to
succeed. Since malice had not been pleaded, Mr. Henry’s action could not succeed. The Supreme Court of
Canada overturned the Court of Appeal's decision, and ordered that Mr. Henry’s action proceed. However, the
Court held that while malice was not required, something more than mere negligence was required.

[295] Moldaver J., for the majority of the Court, held that the analysis of the Court in Vancouver (City)
should govern.

[296] At para. 35, Moldaver J. stated:

Charter damages are a powerful tool that can provide a meaningful response to rights violations.
They also represent an evolving area of the law that must be allowed to “develop incrementally”:
Ward, at para. 21. When defining the circumstance in which a Charter damages award would be
appropriate and just, courts must therefore be careful not to stifle the emergence and development
of this important remedy.

[297] At para. 36, he went on to say “However, Charter damages are not a silver bullet. They are just one of
many remedies that may be available to individuals whose Charter rights have been breached, and their
availability is not without limit.”

[298] Moldaver J. went on to consider the third step under Vancouver (City), namely, countervailing
considerations, and particularly the consideration relating to concerns over good governance.

[299] It was argued by the Attorney General that the spectre of liability may influence the decision-making
of prosecutors and make them defensive in their approach. It was submitted that the public interest would not be
well served when Crown counsel are motivated by fear of civil liability, rather than their sworn duty to fairly and
effectively prosecute crime. The Attorney General argued that a low threshold would open up the floodgates of
civil liability.

[300] At para. 41, Moldaver J. stated “As I will explain, these concerns are very real, and they provide
compelling reasons why the availability of Charter damages should be circumscribed through the establishment

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of a high threshold.”

[301] It is unnecessary to review in detail his subsequent analysis. In brief, he held that the imposition of a
“malice” requirement would be too high, but a simple negligence threshold would be too low. In the final
analysis, he held that an intermediate standard would be appropriate, namely, that a claimant should be required
to show that the decision to withhold information from an accused was deliberate rather than merely negligent.
Where a claimant can meet this standard, an action for Charter damages can brought.

[302] It is not surprising that constitutional remedies have been a live issue in the United States. Perhaps one
of the more controversial constitutional remedies was that reflected in Brown v. Plata, supra, where the Supreme
Court of the United States upheld an order requiring the release of 46,000 inmates from the California penal
system, in order to remedy severe overcrowding that had for many years adversely affected the interests of
prisoners.

[303] Kennedy J., for the majority of the Court, stated “As a consequence of their own actions, prisoners
may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition
of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that
dignity animates the Eighth Amendment prohibition against cruel and unusual punishment, “the basic concept
underlying the Eighth Amendment is nothing less than the dignity of man””.

[304] He stated “Courts nevertheless must not shrink from their obligation “to enforce the constitutional
rights of all persons, including prisoners”. Courts may not allow constitutional violations to continue simply
because a remedy would involve intrusion into the realm of prison administration.”

[305] It is with these considerations in mind that I must now determine what is an appropriate remedy for the
Charter violations that I have found.

[306] As noted, amicus submitted that a systemic remedy would be appropriate. Ms. Jackman submits that
there should be an order prohibiting the imposition of lockdowns due to staffing inadequacies, and asks that I
remain seized. With respect to Mr. Ogiamien, she submits that there should be a transfer to the Immigration
Holding Centre.

[307] Counsel for the Ministry and the Attorney General of Ontario submitted that a declaration that there
had been a violation of Charter rights would be sufficient.

[308] Counsel for the Attorney General of Canada argued that an order transferring Mr. Ogiamien to an
immigration holding centre would be inappropriate.

[309] I am not persuaded that a systemic remedy would be appropriate. Neither am I persuaded that a mere
declaration of rights would be sufficient. I am also not persuaded that I should order Mr. Ogiamien to be
transferred to an immigration holding centre.

[310] I noted at the outset of these reasons that the matter before me is not a class proceeding. It is simply a
claim by two individuals seeking a remedy for violation of their individual Charter rights. It is not appropriate
in my view, in adjudicating their individual claims, to grant a systemic remedy to cure the ills of the inmate
population as a whole. Furthermore, any systemic remedy is unlikely to benefit the applicants personally. By
the time any systemic remedy is implemented, Mr. Ogiamien and Mr. Nguyen will likely no longer be at
Maplehurst.

[311] If a systemic remedy is to be awarded, it should be more appropriately awarded in the context of a
class proceeding, in which the court can be better informed as to the impact of a Charter violation on the class as
a whole, and where more robust evidence will likely be given as to the practicality of any order the court may
make.

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[312] I am similarly not persuaded that a mere declaration is sufficient. A declaration will certainly draw the
attention of the appropriate authorities to the nature of the problem, and will act as an incentive for them to
remedy the problem, hopefully in short order. However, it does little or nothing to vindicate the individual rights
of Mr. Ogiamien and Mr. Nguyen.

[313] Before turning to what I consider to be the appropriate remedy, namely, damages, I will deal with the
other suggested remedy of transferring Mr. Ogiamien to an immigration holding centre. I agree with the
Attorney General of Canada that such a remedy would be inappropriate.

[314] The immigration holding centre is designed for very low-risk detainees. The contract with the owner
and the insurance policy on the building reflect this. Mr. Ogiamien is not a low-risk detainee. Among other
things, he has a criminal record.

[315] To require Mr. Ogiamien to be transferred to an immigration holding centre could cause significant
problems that cannot be immediately solved under the current configuration. In the final analysis, I do not think
a transfer would be an appropriate remedy.

[316] However, that does not leave the Government of Canada off the hook. Having found a violation of the
Charter rights of Mr. Ogiamien, an immigration detainee, I must consider whether the Government of Canada
should be wholly or partly responsible for any other remedy I may award.

[317] That leaves for my consideration the issue of damages.

[318] When I follow the four-step analysis prescribed by the Supreme Court of Canada in Vancouver (City), I
conclude that damages are an appropriate remedy, and one to be awarded in this case.

[319] As to the first step, I have found a Charter breach.

[320] At the second step, I must consider whether damages serve a useful function or purpose. In my view,
they do.

[321] For Mr. Ogiamien and Mr. Nguyen, damages will fulfill the function of compensation, in this case
general damages for breach of their Charter rights. They have been made to suffer stress, impacts on visits from
family and friends, interference with telephone calls, interference with showers, interference with proper
hygiene, forced co-existence with a cellmate, to mention only some of the features mentioned in the evidence.
To award damages in these circumstances will fulfill the function of vindication, to recognize that Charter rights
must be maintained. Further, they will serve the function of deterrence, in that they may serve to deter future
breaches by government.

[322] At step three, I must consider where there are countervailing factors that would suggest that damages
are not an appropriate remedy, or that they should be limited. In my view, there are none.

[323] This is not a case like Henry, where it was considered appropriate to limit the availability of damages
to cases where a relatively high threshold has been met, because to fail to do so would act as a chilling effect on
the duty of Crown prosecutors to act. The availability of damages will not have a chilling effect here, rather,
they will likely act as an incentive to government actors to ensure that future Charter violations are remedied as
soon as possible.

[324] I have already determined that alternative remedies are not available or are not appropriate. As noted
earlier, a declaration would be of little use to the applicants.

[325] That leaves for consideration the last step – the quantum of damages.

[326] In Vancouver (City), the Supreme Court of Canada declined to interfere with an award of damages of
$5,000. That award was for a single occurrence and its aftermath, namely, a wrongful arrest and strip search. It

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was over and done with in a relatively short period of time.

[327] By contrast, however, the Charter violations suffered by Mr. Ogiamien and Mr. Nguyen have occurred
on an almost continuous basis since the dates they were detained at Maplehurst.

[328] Mr. Ogiamien has been in custody in Maplehurst since April 26, 2013, except for a brief period when
he was housed at Central North Correctional Centre. Thus, he has been at Maplehurst for almost three years.
He is in Maplehurst as an immigration detainee, awaiting a decision as to what will be done with him by the
immigration authorities.

[329] Mr. Nguyen has been at Maplehurst since May 8, 2015 on various firearms-related charges. He has
not yet been tried.

[330] For both individuals, lockdowns have occurred for approximately 50 per cent of the time they have
been at Maplehurst, and indeed in 2015 they occurred approximately 55 per cent of the time. They are primarily
caused by staff shortages. The occurrence and duration of lockdowns is entirely unpredictable.

[331] Unlike the situation in Vancouver (City), the Charter violations have occurred over a lengthy period of
time, and have caused sustained interference with the interests of Mr. Ogiamien and Mr. Nguyen. In my view,
significantly larger amounts must be paid to them for the Charter violations.

[332] I have determined that the appropriate amount to be paid to Mr. Ogiamien is $60,000. In my view, that
is a reasonable, but not unduly large, amount to compensate him for the Charter violations as I have found them,
and to compensate him for the effects that those violations have had on him for the periods of time that they
have occurred.

[333] While Mr. Ogiamien is being held in an institution owned and operated by the Province of Ontario, he
is there at the direction of and with the agreement of the Government of Canada. It would be open to the
Government of Canada to operate immigration facilities for all immigration detainees. For its own reasons, the
Government of Canada has contracted out part of that responsibility to the Province of Ontario. If Charter
violations occur while immigration detainees are held in a provincial facility, the Government of Canada must
accept at least part of the responsibility for them.

[334] In my view, the appropriate disposition is that the Governments of Canada and Ontario should be
jointly and severally responsible for the damages to Mr. Ogiamien.

[335] As far as Mr. Nguyen is concerned, the Government of Canada has no responsibility for him. He is at
Maplehurst because he is charged with criminal offences. His custodial arrangements are entirely the
responsibility of the Province of Ontario. Thus, any damages awarded to Mr. Nguyen must be paid only by the
Government of Ontario.

[336] Mr. Nguyen has been at Maplehurst for a considerably shorter period than Mr. Ogiamien. I think an
appropriate amount to be paid to Mr. Nguyen is $25,000.

Disposition

[337] For the foregoing reasons, I order as follows:

a) It is declared that the rights of the applicants under s. 12 of the Canadian Charter of
Rights and Freedoms have been violated;
b) Pursuant to s. 24 (1) of the Canadian Charter of Rights and Freedoms, Jamil Ogiamien is
awarded damages in the amount of $60,000, for which the Government of Canada and the
Government of Ontario are jointly and severally liable;

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c) Pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, Huy Nguyen is
awarded damages in the amount of $25,000, for which the Government of Ontario is
liable;
d) Pre-judgment interest at the statutory rate is payable from and after the date of this
application, namely July 17, 2015.

[338] This is not a case for costs.

[339] I wish to thank the applicants and all counsel for their courtesy and the very helpful way in which they
organized and conducted this case. I would be remiss if I did not record my particular thanks to Ms. Jackman,
who fulfilled her obligation as amicus curiae admirably. Indeed, I can safely say that this case could not have
been conducted in the way it was conducted without her assistance. She exemplifies the value that amicus can
bring to an appropriate case, and I am grateful for her assistance.

Gray J.

Released: May 10, 2016

CITATION: Ogiamien v. MCSCS, 2016 ONSC 3080

COURT FILE NO.: 109/15
DATE: 2016-05-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMIL OGIAMIEN and HUY NGUYEN

Applicants

– and –

HER MAJESTY THE QUEEN in right of Ontario, repre

sented by the Ministry of Community Safety and Correc
tional Services (‘MCSCS’) and the SUPERINTENDEN
T OF MAPLEHURST CORRECTIONAL COMPLEX
(‘MCC’) and THE ATTORNEY GENERAL OF CANA
DA

Respondents

REASONS FOR JUDGMENT

GRAY J.

Released: May 10, 2016

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Federation of Law Societies of Canada

By for the law societies members of the

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 350

Henry v. British Columbia

2016 BCSC 1038 (CanLII)

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Henry v. British Columbia, 2016 BCSC 1038 (CanLII)

Date: 2016-06-08
File number:S114405
Citation: Henry v. British Columbia, 2016 BCSC 1038 (CanLII), <http://canlii.ca/t/gs08s>, retrieved on 2019-01-06

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Henry v. British Columbia

(Attorney General),
2016 BCSC 1038
Date: 20160608
Docket: S114405
Registry: Vancouver
Between:
Ivan William Mervin Henry
Plaintiff
And
Her Majesty The Queen In Right of The Province of British Columbia as represented by the Attorney
General of British Columbia,
City of Vancouver, William Harkema, Marilyn Sims,
and Attorney General of Canada
Defendants
Corrected Judgment: The text of the judgment was corrected on
the front page where changes were made on June 15, 2016

Before: The Honourable Chief Justice Hinkson

Reasons for Judgment
Counsel for the Plaintiff: J. Laxton, Q.C., M. Sandford, Q.C.,
J. Arvay, Q.C., A. Tolliday,
M. Longay, P. Poyner,
R. Brooks and A. Latimer

Counsel for the Defendant, British Columbia: J. Hunter, Q.C., E. W. Hughes

and K. Johnston

Counsel for the Defendant, City of Vancouver, W. Hark B. Quayle and K. Liang
ema and M. Sims

Counsel for the Defendant, Attorney General of Canada M. Taylor, Q.C., K. Cochrane
and S. Pereira

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Place and Date of Trial: Vancouver, B.C.
August 31, September 1, 3-4, 8-11,
21-25, 29-30, October 1-2, 6-9, 13-16, 19-22, 26-28,
November 2-3, 5, 9-10, 16,
23-27, December 1, 7-9, 15-17, 2015
Place and Date of Judgment: Vancouver, B.C.
June 8, 2016

TABLE OF CONTENTS
BACKGROUND
1. Assaults
2. Investigation
3. Arrest and Conviction
4. Dangerous Offender Hearing
5. Post-Conviction Appeals
6. Review of Conviction and Appeal on the Merits
THE PRESENT PROCEEDINGS
THE POSITIONS OF THE REMAINING PARTIES
1. Mr. Henry
2. The Province
Limitation Defence
LEGAL PRINCIPLES RELATING TO CLAIMS FOR CHARTER DAMAGES
1. Test for Awarding Damages for Charter Breaches
2. Crown Counsel’s Duty to Disclose
Test for Wrongful Non-Disclosure
APPLICATION OF LEGAL PRINCIPLES
1. Were Mr. Henry’s Charter Rights Breached?
A. Mr. Henry’s mental state at the time of the alleged Charter breaches
B. By what standard should Crown Counsel’s duty of disclosure be assessed?
C. What evidence did the Crown have before or during Mr. Henry’s trial?
i. Wire-Tap, DNR, Surveillance, and Tracking Device Evidence
ii. Physical Evidence: Tool Marks, Clothing, Fingerprints and Spermatazoa
iii. Evidence Relating to the May 12, 1982 Line-Up
iv. Complainants’ Evidence
v. Evidence Relating to Other Suspects
vi. Other Evidence
D. Was disclosure intentionally withheld from Mr. Henry by Crown Counsel?
E. Did Mr. Luchenko know or ought he reasonably to have known that the information was
material to the defence and that the failure to disclose it would likely impinge on Mr. Henry’s
ability to make full answer and defence?
i. Wire-Tap, DNR, Surveillance, and Tracking Device Evidence
ii. Physical Evidence: Tool Marks, Clothing, Fingerprints and Spermatazoa
iii. Evidence Relating to the May 12, 1982 Line-Up
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iv. Complainants’ Evidence
v. Evidence Relating to Other Suspects
vi. Other Evidence
F. Judicial Imprimatur
G. Did the withholding of information violate Mr. Henry’s Charter rights?
H. The Element of Harm
i. Causation
ii. Errors Attributed to the Trial Judge
iii. Contributory Negligence
a. Mr. Henry
b. Settling Parties to the Action
c. The Province’s Position on the Liability of the City Defendants
d. Conclusion on the Liability of the City Defendants
e. The Province’s Position on the Liability of the Federal Crown
f. Conclusion on the Liability of the Federal Crown
iii. Joint and Several Liability
2. Are Damages a Just and Appropriate Remedy for Mr. Henry?
3. Are There Countervailing Factors that Defeat the Functional Considerations
Supporting an Award of Damages or Render an Award of Damages
Inappropriate or Unjust?
4. The Quantum of Damages
A. Compensation
i. Damages for Mr. Henry's Daughters
ii. Past Hypothetical Events
iii. The Likelihood of Recidivism
iv. Past Loss of Opportunity to Earn Income
B. Special Damages
C. Non-Pecuniary Damages
D. Vindication of Mr. Henry’s breached Charter rights
E. Deterrence of Future Breaches
COSTS
SUMMARY

[1] In March 1983, having represented himself at trial, the plaintiff, Mr. Henry, was convicted of 10 sexual
offences that occurred in 1981 and 1982 involving eight different complainants. He was subsequently declared a
dangerous offender and sentenced to an indefinite period of incarceration. He remained imprisoned for almost 27
years. On October 27, 2010, the British Columbia Court of Appeal quashed all 10 convictions and substituted
acquittals for each: R. v. Henry, 2010 BCCA 462 (CanLII) [Henry BCCA].

[2] In this action, Mr. Henry seeks damages from Her Majesty the Queen in Right of the Province of British
Columbia as represented by the Attorney General of British Columbia (the “Province”) for what he asserts were
breaches of his rights pursuant to the Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[Charter] that resulted in his wrongful conviction and ensuing imprisonment.

BACKGROUND

1. Assaults

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[3] In the 18-month period from November 25, 1980 to June 8, 1982, the Vancouver Police Department
(“VPD”) investigated more than 20 complaints of sexual assaults that occurred in the City of Vancouver. The
VPD obtained detailed but unsworn statements from the complainants, collected exhibits from some of the crime
scenes, and submitted some of those exhibits for forensic analysis. They also obtained fingerprints and tool
markings from some of the scenes and sent them for comparison purposes to the Vancouver City Laboratory (the
“Lab”).

[4] During many of the assaults, the perpetrator told the complainants that he had been "ripped off" by
someone who owed him money and who was supposed to live at the residence to which he had illegally gained
entry. The VPD investigators concluded that each of the assaults had likely been committed by one man, whom
they dubbed “the rip-off rapist”.

[5] I will refer to the eight complainants whose complaints underlay the charges faced by Mr. Henry at trial
in 1983 as B.Q., P.B., K.K., P.G., H.M., D.I., C.A., and J.F.

[6] B.Q. was assaulted on May 5, 1981; P.B. on June 16, 1981; K.K. on August 5, 1981; P.G. on October 17,
1981; H.M. on February 22, 1982; D.I. on March 10, 1982; C.A. on March 19, 1982; and J.F. on June 8, 1982.

2. Investigation

[7] The VPD’s response to the sexual assaults included the investigation of a suspect named Donald James
McRae (“McRae”), alias Donald Hobson. Mr. McRae was charged and pleaded guilty to three of what came to
be referred to as the “small man” offences and was sentenced to five years’ imprisonment for those offences in
2005. He died some time thereafter. At the time of the offences for which Mr. Henry was convicted, Mr. McRae
lived at 225 East 17th Avenue, in the heart of the Mount Pleasant neighbourhood where many of the sexual
assaults took place. He had a history of late night predatory sexual behaviour in that neighbourhood and in the
other Vancouver neighbourhoods where the sexual assaults for which Mr. Henry was convicted occurred.
Mr. McRae resembled Mr. Henry in appearance.

[8] Mr. Henry became a suspect in the investigation after his ex-wife Jessie Henry (”Ms. Henry”) contacted
the VPD and provided them with a statement suggesting that Mr. Henry might have been responsible for the
sexual assaults. She provided articles of clothing belonging to Mr. Henry and at least one photograph of him to
the VPD. Mr. Henry was then placed under surveillance. He was arrested on May 12, 1982 and his personal
tools were seized from his vehicle. 11 complainants viewed him in a police line-up that day. Of those 11
complainants, six were named in the indictment that was before the jury that convicted Mr. Henry. Mr. Henry
was photographed and released from custody on May 13, 1982.

[9] On June 19, 1982, a warrant was obtained that permitted the VPD to place a Dial Number Recorder
(“DNR”) on the telephone at the residence at 248 East 17th Avenue, Vancouver, where Ms. Henry and the
children of Mr. and Ms. Henry resided, and where investigators believed Mr. Henry resided. Commencing on or
about June 19, 1982, the DNR was installed by VPD investigators. That device remained in place until at least
July 23, 1982. No data obtained from the DNR linked Mr. Henry to the commission of any of the sexual
assaults.

[10] On July 9, 1982, a warrant was obtained to place an electronic tracking device (the “Tracking Device”)
on Mr. Henry’s car. The Tracking Device was installed on his vehicle on or about July 9, 1982. No data obtained
from the Tracking Device linked Mr. Henry to the commission of any of the sexual assaults.

[11] On July 23, 1982, Crown Counsel obtained an order from Judge Fisher of the County Court of Vancouver
for a wiretap authorization to intercept Mr. Henry’s private communications (the "Wiretap Application”). The
materials filed in support of the Wiretap Application included evidence that VPD members had conducted
constant surveillance of Mr. Henry from May 15, 1982 until June 7, 1982, and again from June 8, 1982 until July
23, 1982, and that 20 sexual assault complainants had participated in the Royal Canadian Mounted Police’s
(“RCMP”) Witness Suspect Viewing System, and had also viewed many photographs in an attempt to identify
their assailant.
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[12] On July 27 and 28, 1982, Detective William Harkema of the VPD showed J.F. an array of photographs
that included a photograph of Mr. Henry taken by the police while he was in custody in May of that year. Based
on the photograph, J.F. made a conditional identification of Mr. Henry as her attacker.

3. Arrest and Conviction

[13] On the strength of J.F.’s identification, Mr. Henry was arrested in 100 Mile House on July 29, 1982 on 17
sexual offence charges involving 15 complainants. He remained in custody until his preliminary hearing.
Mr. Michael Luchenko, with whom Det. Harkema dealt during the rip-off rapist investigation, acted as Crown
Counsel at the preliminary hearing. The preliminary hearing took place over eight days in October and
November 1982 on a new information containing 19 counts naming 17 complainants. Two of the complainants
did not testify and Mr. Henry was committed for trial on the 17 counts that related to the remaining 15
complainants.

[14] Mr. Henry’s trial commenced in this Court on February 28, 1983. Crown Counsel at the trial was again
Mr. Luchenko, assisted by Ms. Judith Milliken. Prior to the selection of the jury, Mr. Justice Bouck, the trial
judge, indicated that he wanted the Crown to proceed with only five of the counts. Mr. Henry asked Bouck J. to
require the Crown to proceed on all the counts in the indictment, but Bouck J. ultimately ordered the severance
of specific counts.

[15] Mr. Henry was arraigned on a new 10-count indictment naming eight complainants and consisting of
three counts of rape, two counts of attempted rape, and five counts of indecent assault. A jury was selected.
Mr. Henry represented himself at the trial, which continued for 12 days. On March 15, 1983, Mr. Henry was
convicted on all 10 counts of the indictment.

4. Dangerous Offender Hearing

[16] At the time of his dangerous offender proceedings, Mr. Henry’s criminal record was:
October 31, 1962 − auto theft (2 counts)
February 11, 1963 − break and enter and theft
May 16, 1963 − breach of recognizance
October 16, 1963 − break and enter and commit an indictable offence
February 2, 1965 − possession of stolen property obtained by a crime
(2 counts) and fraud.
March 30, 1965 − break and enter and theft
March 19, 1966 − vagrancy
June 15, 1966 − possession of property obtained by a crime
February 22, 1967 − possession of property obtained by a crime
September 29, 1967 − break and enter, and theft
October 5, 1967 − break and enter, and commit an indictable offence
March 10, 1970 − theft over $50
June 14, 1971 − contempt
May 24, 1973 − possession of a narcotic for purpose of trafficking
June 19, 1973 − possession of a weapon
January 21, 1977 − break and enter and commit an indictable offence
January 21, 1977 − assault with intent to commit an indictable offence
January 21, 1977 − attempted rape

[17] On March 28, 1983, the Crown obtained the consent of the Attorney General of British Columbia to
apply for Mr. Henry to be sentenced to detention in a penitentiary for an indefinite period of time as a dangerous
offender.

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[18] On April 6, 1983, Mr. Henry filed a notice of application for leave to appeal against his conviction to the
Court of Appeal.

[19] On May 9, 1983, Mr. Henry met with Mr. Glen Orris, a barrister and solicitor who was prepared to
represent him on a legal aid basis at the dangerous offender hearing, but Mr. Henry declined his assistance.

[20] On May 20, 1983, Mr. Henry confirmed his intention of proceeding “without any counsel” in a letter to
Mr. Luchenko. On June 16, 1983, Mr. Henry again wrote Mr. Luchenko and confirmed his intention of
proceeding without a lawyer in the dangerous offender hearing.

[21] On June 21, 1983, the Federal Court of Canada (Trial Division) struck out a claim brought by Mr. Henry
for damages arising from theft of clothing and items in the car which was seized by the RCMP at the time of his
arrest.

[22] On September 16, 1983, Mr. Henry brought a motion in this Court for relief in the nature of certiorari,
prohibition, habeas corpus, and mandamus. Then Chief Justice McEachern declined to grant the applications for
prerogative relief and Mr. Henry appealed Chief Justice McEachern’s decision to the British Columbia Court of
Appeal. That appeal was dismissed on November 18, 1983.

[23] On November 23, 1983, Bouck J. found Mr. Henry to be a dangerous offender, and pursuant to what was
then s. 688 of the Criminal Code, sentenced Mr. Henry to an indefinite period of incarceration.

5. Post-Conviction Appeals

[24] On November 29, 1983, Mr. Henry filed a notice of application for leave to appeal against his sentence.

[25] On February 24, 1984, Mr. Henry’s conviction and sentence appeals came before the Court of Appeal on
a Crown application to have the appeals dismissed for want of prosecution. Mr. Henry, who was present for the
hearing, had not filed, let alone ordered, the necessary appeal books. When Mr. Henry advised the Court that if it
wished to obtain the transcripts, he would write some notes in them for the Court, but that he would not get
them, that they were ”garbage” and he would throw them away, the Court dismissed his appeals for want of
prosecution.

[26] Following the dismissal of his conviction and sentence appeals, Mr. Henry filed numerous applications in
several courts. I describe a number of the unsuccessful applications made between 1984 and 1992 in the table
below:

Court Application for... Outcome

British Columbia Court of Appeal mandamus March 19, 1984: dismissed as frivol
ous

Supreme Court of Canada leave to appeal against the judgmen April 24, 1984: dismissed
ts of the British Columbia Court of
Appeal dated November 18, 1983, a
nd February 24, 1984

British Columbia Court of Appeal habeas corpus May 29, 1984: dismissed

Saskatchewan Court of Queen’s Be habeas corpus with certiorari in aid August 7, 1984: dismissed as amou
nch nting to an application for review of
conviction and sentence

Saskatchewan Court of Appeal appeal of the August 7, 1984 Saskat September 6, 1984: dismissed
chewan Court of Queen’s Bench de

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cision

Saskatchewan Court of Queen's Ben habeas corpus, prohibition and decl December 14, 1984: dismissed
ch aratory relief

Saskatchewan Court of Queen’s Be habeas corpus with certiorari in aid April 11, 1985: dismissed
nch

Saskatchewan Court of Appeal appeal of the April 11, 1985 decisio July 9, 1985: dismissed
n of the Saskatchewan Court of Que
en’s Bench

Federal Court of Canada (Trial Divi August 6, 1985: claim struck as inv
sion) olving a review of the Supreme Cou
rt of British Columbia’s criminal de
cision

Saskatchewan Court of Queen's Ben relief under the Charter and for pr January 9, 1986: dismissed
ch ohibition

Saskatchewan Court of Queen's Ben remedies by way of either habeas c April 9, 1987: dismissed
ch orpus or the Charter

Federal Court of Canada (Trial Divi appointment of counsel and five oth June 15, 1987: dismissed
sion) er applications

Saskatchewan Court of Appeal appeal from the April 9, 1987 decisi February 9, 1988: dismissed
on of the Saskatchewan Court of Qu
een's Bench

Saskatchewan Court of Queen's Ben order quashing his conviction May 23, 1989: dismissed
ch

Saskatchewan Court of Appeal appeal from the May 23, 1989 decis August 9, 1989: dismissed
ion of the Saskatchewan Court of Q
ueen's Bench

British Columbia Court of Appeal habeas corpus, extension of time to September 20, 1990: dismissed
appeal, and relief under the Charte
r, all related to 1983 convictions an
d sentence

Federal Court of Canada (Trial Divi relief under the Charter as against November 27, 1990: dismissed
sion) the Government of Canada in relati
on to continued detention

Supreme Court of Canada leave to appeal the September 20, 1 June 20, 1991: dismissed
990 judgment of the British Columb
ia Court of Appeal

Saskatchewan Court of Queen’s Be relief, including habeas corpus June 25, 1991: dismissed; Registry
nch directed to not accept further filings
from Mr. Henry without leave
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Federal Court of Canada (Trial Divi declaratory relief in relation to his c December 9, 1991: dismissed
sion) ontinued imprisonment

Federal Court of Appeal appeal of Federal Court of Canada’s November 3, 1992: dismissed
November 27, 1990 decision

[27] On February 15, 1994, Mr. Henry sent a letter to the Saskatchewan Legal Aid Commission requesting the
appointment of counsel. In the letter, he stated that he wanted to take responsibility for a break and enter that
occurred in Vancouver on January 14, 1982.

[28] On October 1, 1997, Mr. Henry filed four documents entitled "Notice of Motion", "Application for an
Extension of Time in which to make Application for Leave", "Application for Court Appointed Counsel
Pursuant to S. 684 of the Criminal Code”, and "Affidavit in Support of Notice of Motion” seeking to re-
open the appeal of his convictions that had been dismissed by the Court of Appeal in 1984 and to have counsel
appointed to assist him for that purpose. On December 16, 1997, the British Columbia Court of Appeal
dismissed this application.

[29] On April 9, 1998, the Supreme Court of Canada dismissed Mr. Henry’s application for leave to appeal the
Court of Appeal’s decision of December 16, 1997.

[30] On December 13, 2000, the Supreme Court of British Columbia dismissed Mr. Henry’s application for
disclosure of medical evidence and police reports from the VPD and Crown Counsel.

[31] On January 24, 2001, Mr. Luchenko wrote to the VPD requesting that a VPD member review its files for
the offences for which Mr. Henry was convicted to determine whether there was any physical evidence
remaining.

[32] On February 13, 2001, Det. Harkema issued a report on his investigation in response to Mr. Luchenko's
inquiries as to the availability of any physical evidence. Det. Harkema determined that no physical evidence
remained available.

[33] On February 18, 2003, the British Columbia Court of Appeal dismissed Mr. Henry’s further appeal from
the December 13, 2000 decision of the Supreme Court of British Columbia.

[34] On September 18, 2003, the Supreme Court of Canada dismissed Mr. Henry’s application for leave to
appeal the British Columbia Court of Appeal’s February 18, 2003 decision for relief relating to disclosure of
documents by the Provincial Crown and the VPD.

6. Review of Conviction and Appeal on the Merits

[35] In January 2005, Provincial Crown Counsel Ms. Jean Connor, Q.C. noticed some similarity between the
offences for which Mr. Henry was convicted and the small man offences, and suggested a review of Mr. Henry’s
file.

[36] In December 2006, Mr. Len Doust, Q.C. was appointed by the Attorney General for British Columbia as
a special prosecutor to conduct an independent review of all of the materials relating to Mr. Henry’s conviction
to determine whether there had been a potential miscarriage of justice.

[37] Mr. Henry and the Province agreed to a statement of facts in the proceedings in the British Columbia
Court of Appeal, which included the following:
20. Following his appointment [by the Province as an independent special prosecutor to review
Mr. Henry’s convictions], Mr. Doust conducted a detailed review of Mr. Henry’s convictions and the new
evidence relating to Mr. McRae. On March 28, 2008, the Criminal Justice Branch issued a Media Release
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indicating that Mr. Doust had prepared a written report with respect to his review. The Media Release
indicated that Mr. Doust “concluded that the Crown ought not oppose any application to re-open
Mr. Henry’s appeal, should such an application be made.” The Media Release, which is attached to the
Agreed Statement of Facts as Schedule 3, also stated:
Mr. Doust further recommended that:
1. “the Crown make full disclosure to Henry of the results of the Vancouver Police
Department’s investigation in Project Smallman, which evidence is in my view relevant
and potentially exculpatory and which the Crown is therefore obliged to disclose pursuant
to its ongoing disclosure obligations at common law”;
2. “the Crown make full disclosure to Henry of the totality of the evidence in its possession
relating to the offences for which Henry was charged and/or convicted, so as to ensure that
Henry has the benefit of any potentially exculpatory evidence which may or may not have
been previously disclosed to him;
3. “the Crown provide a copy of my report to Henry’s counsel and make full disclosure to
Henry of the documents and information which I collected in the course of my review”;
and
4. “the Attorney General appoint a Special Prosecutor independent of my office and the office
of Crown Counsel to represent the Crown in response to any application which Henry
might bring to re-open his appeal and adduce fresh evidence on the basis of the
conclusions in my report.”
…
25. The materials that have been gathered by the Crown since Mr. Doust was appointed in late 2006 do
not constitute all of the materials that have at one time existed with respect to Mr. Henry’s case. In
particular:
(a) although some physical evidence from the sexual assaults was obtained by the VPD
between 1980 and 1982, this evidence can no longer be located (with the exception of the
pillow cases referred to at paragraph 73 below);
(b) the Sexual Assault Squad’s detectives working files, which were maintained by the VPD
Investigative Division, appear to have been destroyed in the early 1990s (although
microfiche copies of certain investigation or follow up reports were retained and archived
by the VPD Information Section); and
(c) the VPD advises that there are no longer any notes available from the VPD officers who
worked on the Henry investigation.

[38] On January 13, 2009, the British Columbia Court of Appeal granted Mr. Henry's unopposed application
to set aside the Court's February 24, 1984 order dismissing his appeal, and ordered that the appeal from
conviction be re-opened for consideration on its merits.

[39] On June 12, 2009, Mr. Henry was released from custody on bail pending the hearing of his appeal from
conviction before the British Columbia Court of Appeal. He has not been incarcerated since that date. By this
time, Mr. Henry had spent 26 years, 10 months, and 14 days in custody since his arrest on July 29, 1982.

[40] As I have indicated above, on October 27, 2010, the British Columbia Court of Appeal allowed
Mr. Henry’s appeal and quashed the 1983 convictions. In his reasons for judgment, Mr. Justice Low, for the
Court, noted that Mr. Henry’s appeal was being considered on the merits for the first time. Low J.A. concluded
that legal errors were made at trial and that the appeal had to be allowed. All of Mr. Henry’s March 1983
convictions were quashed and acquittals were entered on each count.

[41] The findings made by Low J.A. included the following:

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[54] … the identification evidence was weak. An astute juror would have recognized that to be so. With
no evidence to shore up identification on any count, conviction by the jury based on a proper
understanding and application of the law of identification was unlikely. The legally wrong instruction on
consciousness of guilt provided even the astute juror with a comfortable and perhaps irresistible path of
reasoning to guilt.
…
[108] The evidence at trial on each count in the indictment was probably sufficient to put the appellant at
risk and for the case to go to the jury with careful and proper instruction. However, in my opinion, the
evidence against the appellant on the critical element of identification was not sufficient on appellate
review to sustain a conviction on any of the counts in the indictment.
…
[111] [The] identification problems were not overcome by subsequent in-court identification.
…
[135] … the photographic line-up was unfair. In particular, the photograph of the appellant, from the
waist up, shows him standing in front of a jail cell with the arm of a uniformed police officer in the
foreground. None of the foils is shown in this manner. The backgrounds in the other photographs are either
blank or otherwise neutral. In addition, each of the six foils is, by appearance, at least ten years younger
than the appellant. The appellant is the only one with a full moustache, and the appellant is the only one
with curly hair. In addition, the foils all have hair length that is at least to the collar and over the ears, by a
substantial amount with respect to three or four of them. The appellant's hair is cut back and higher on the
forehead.
[136] It appears to me that the photograph of the appellant stands out unfairly and would have focused
the viewer of the array on him.
…
[141] The process of identification was polluted so as to render in-court identification of the appellant on
each count highly questionable and unreliable on the reasonable doubt standard. I consider the verdicts to
be unsafe.
[142] In my opinion, the verdict on each count was not one that a properly instructed jury acting
judicially could reasonably have rendered.

[42] In reasons for judgment in these proceedings indexed at 2015 BCSC 1798 (CanLII), I held that both
the plaintiff and the Province were bound by the above findings as well as the finding at para. 154 of the
decision of the Court of Appeal that:
(1) The trial judge erred by instructing the jurors that they could infer consciousness of guilt from the
resistance of the appellant to participation in the line-up conducted by the police on 12 May 1982;
(2) The instruction on the element of identification was inadequate;
(3) There should have been severance of the counts and a mistrial when the Crown abandoned its
application for jury instruction on count-to-count similar fact evidence;
(4) Any of these errors, standing alone, would require this court to order a new trial;
(5) The evidence as a whole was incapable of proving the element of identification on any of the ten
counts and the verdicts were unreasonable;
(6) The appropriate remedy under s. 686(2)(a) of the Criminal Code is acquittal on each count.

THE PRESENT PROCEEDINGS

[43] Mr. Henry’s notice of civil claim in this action was filed on June 28, 2011. He initially brought this action
not only against the Province but against the City of Vancouver, Detective William Harkema, and Detective
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Marilyn Sims (the “City defendants”) as well. Det. Sims was a VPD officer who was involved with Det.
Harkema in the investigation of the offences with which Mr. Henry was initially charged. Mr. Henry alleged that
the City of Vancouver was vicariously liable for what he asserted was the faulty police investigation of the
offences with which he was charged.

[44] Mr. Henry also brought these proceedings against the Attorney General of Canada (the “Federal Crown”)
for the reception and treatment of his post-sentencing applications for various relief.

[45] During the course of the trial of this action, Mr. Henry settled his claims against the City defendants, and
later against the Federal Crown. The terms of those settlements were not disclosed, but the action was
discontinued as against those defendants, and amendments were permitted to the pleadings of the plaintiff and
the Province.

[46] In an agreed statement of facts in these proceedings dated October 20, 2015, Mr. Henry and the Province
agreed in part that:
PART I
1. Between November 25, 1980 and June 8, 1982, the Vancouver Police Department (the "VPD")
received numerous sexual assault complaints. These complainants included [V.C., R.T., D.E., G.H., E.M.,
K.M., B.Q., L.A., C.O., P.B., P.G., K.K., H.M., K.P., D.I., C.A., C.H., C.P., A.D., E.S. and J.F]. At the
time, the [Vancouver City Police Department] (“VPD”) was of the view, due to perceived similarities in
the assaults, that these assaults had been committed by one man (the “Sexual Assaults.”)
…
3. Because Mr. Henry refused to cooperate in the line-up, the VPD physically compelled his
participation. Mr. Henry was number 12 in the line-up.
4. Eleven women attended the May 12, 1982 line up: [C.A., P.B., P.G., G.H., D.I., K.K., H.M., E.M.,
K.M., C.P., and B.Q.]
…
7. The [DNR], Tracking Device, surveillance and Witness Suspect Viewing System did not link
Mr. Henry to any of the Sexual Assaults.
…
29. Mr. Luchenko passed away on December 15, 2013.
…
70. Seven of the complainants testified at trial. Each identified Mr. Henry in court based on his
appearance and/or voice as the person who entered her residence and committed an assault. The only
factual issue at trial was the identity of each complainant’s attacker.
71. The eighth complainant, [J.F.], did not testify at trial, and the Crown obtained an order, pursuant to
s. 643 of the Criminal Code, 1982, that permitted her testimony at the preliminary inquiry to be read-
in at the trial. At the preliminary hearing, J.F. made an in-court identification of Mr. Henry as the man who
sexually assaulted her, and she also testified that she had identified him earlier through a selection from the
photo array.
PART II
20. On January 17, 1984, Mr. Stewart filed an application to dismiss Mr. Henry’s appeals for want of
prosecution, as he had not ordered or filed the transcripts and appeal books.
…
24. On February 24, 1984, the B.C. Court of Appeal dismissed Mr. Henry’s appeals from conviction on
all counts and application for leave to appeal from sentence for want of prosecution.
…

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27. On March 19, 1984, the Court of Appeal of British Columbia dismissed Mr. Henry’s application for
mandamus. See R. v. Henry, [1984] B.C.J. No. 1546 (C.A.) (Q.L.) (Court File No. CAOO2019).
…
33. On April 24, 1984, the Supreme Court of Canada dismissed Mr. Henry’s application for leave to
appeal from the judgments of the Court of Appeal of British Columbia dated November 18, 1983 and
February 24, 1984…, which the Supreme Court of Canada refused.
…
175. In 2005, Donald James McRae was charged with offences related to the only three Project
Smallman sexual assaults in which perpetrator DNA evidence was available. Those offences were
associated with the sexual assaults of
[L.W., S.C., and G.J].
…
177. Mr. McRae pleaded guilty to sexual assaults of the three women on May 27, 2005. He was
sentenced by Judge Kitchen on June 15, 2005 to five years in jail.
…
179. In January 2005, Jean Connor, Q.C., Administrative Crown Counsel, became aware of the McRae
prosecutions being conducted by other Crown Counsel. Ms. Connor was in Mr. Luchenko’s office at the
time he had conduct of the prosecution against Mr. Henry, and she noted some apparent similarities
between the offences for which Mr. McRae was convicted and those for which Mr. Henry was convicted.
Because Mr. Henry was incarcerated at the time of Mr. McRae’s offences, a meaningful similarity between
the two groups could raise the possibility of a miscarriage of justice in Mr. Henry’s case.
…
182. Ms. Connor brought her concerns regarding the similarities between the Project Smallman offences
and the offences for which Mr. Henry was convicted to Craig Dykes, the Deputy Regional Crown Counsel.
On February 17, 2005, Mr. Dykes, Geoffrey Gaul (Director of Legal Services), Ronald N. Hurt (Manager,
High Risk Offenders Identification Program), and Terrence A. Schultes (Regional Crown Counsel) met to
discuss steps to be taken on the Henry file. It was agreed at this time that a review should be assigned to a
Special Prosecutor outside the Criminal Justice Branch.

THE POSITIONS OF THE REMAINING PARTIES

1. Mr. Henry

[47] Mr. Henry contends that his wrongful conviction was due to Crown Counsel’s intentional breach of his
rights under ss. 7 and 11(d) of the Charter, specifically by:

a) failing to discharge its duty of disclosure;

b) failing to bring to the attention of the trial judge all information bearing on the reliability of the
identification made by complainants; and

c) making statements to the Court and eliciting testimony from complainants on the issue of
identification that was materially inconsistent with the information contained in materials that had not
been disclosed to him.

[48] In addition, Mr. Henry alleges that Crown Counsel with carriage of his various post-trial applications,
appeals, and other matters breached his s. 7 and 11(d) Charter rights by:

a) applying to dismiss his conviction and sentence appeals for want of prosecution at an extraordinarily
early stage, without bringing certain matters to the attention of the Court of Appeal; and

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b) continuing after his conviction on March 15, 1983, until the appointment of the special prosecutor in
November 2006, to fail to bring matters to the attention of the courts that heard his subsequent post-
trial proceedings.

2. The Province

[49] The Province contends that if its disclosure was inadequate, the two principal issues to be addressed in
determining if liability will attach to the Province are whether it can be reasonably inferred that the inadequate
disclosure was intentional, knowing that the inadequacy would likely impinge upon Mr. Henry’s ability to make
full answer and defence to the charges against him, and whether, if the other requirements of the cause of action
are met, Mr. Henry has established that he would not have been convicted, had adequate disclosure been
provided to him.

Limitation Defence

[50] The Province took the position that any claims which the plaintiff might now have for damages arising
from a Charter breach are barred by s. 3 of the Limitation Act, R.S.B.C. 1996, c. 266. The shortest
limitation period mentioned in that section is found in subsection 2, which provides in part:
(2) After the expiration of 2 years after the date on which the right to do so arose a person may not bring
any of the following actions:
(a) subject to subsection (4) (k), for damages in respect of injury to person or property,
including economic loss arising from the injury, whether based on contract, tort or
statutory duty;
…
(d) for false imprisonment;
(e) for malicious prosecution;

[51] In Hill v. Hamilton-Wentworth, 2007 SCC 41 (CanLII) [Hill], a case involving allegations against
the police for negligent investigation, the Supreme Court of Canada held that the limitation period for claims
arising from a negligent investigation begins to run when the cause of action is complete:
[97] …The wrongfulness of the conviction is essential to establishing compensable injury in an action
where the compensable damage to the plaintiff is imprisonment resulting from a wrongful conviction. In
such a case, the cause of action is not complete until the plaintiff can establish that the conviction was in
fact wrongful. So long as a valid conviction is in place, the plaintiff cannot do so.

[52] Mr. Henry’s cause of action therefore arose in 2010, when he was acquitted by the Court of Appeal. He
commenced his action against the defendants on June 28, 2011, within the relevant limitation period. I am
therefore unable to see any basis upon which Mr. Henry’s claim was barred by the prevailing Limitation Act
at the time that his action was commenced.

LEGAL PRINCIPLES RELATING TO CLAIMS FOR CHARTER DAMAGES

1. Test for Awarding Damages for Charter Breaches

[53] In City of Vancouver v. Ward, 2010 SCC 27 (CanLII) [Ward], the Supreme Court of Canada
considered the questions of when damages may be awarded under s. 24(1) of the Charter, and what the
amount of such damages should be. At para. 4 of her reasons for the Court, Chief Justice McLachlin set out the
following four-part test to resolve those questions:

a) the plaintiff must establish that a Charter right has been breached;

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b) the plaintiff must show why damages are a just and appropriate remedy, having regard to whether
they would fulfill one or more of the related functions of compensation, vindication of the right,
and/or deterrence of future breaches;

c) the state may seek to demonstrate, if it can, that countervailing factors defeat the functional
considerations that support a damage award and render damages inappropriate or unjust; and

d) the quantum of damages must be assessed.

2. Crown Counsel’s Duty to Disclose

[54] Clauses 39 and 40 of the Magna Carta provide:

(39) No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor
will we go or send against him, except by the lawful judgement of his peers or by the law of the land.
(40) To no one will we sell, to no one will we deny or delay right or justice.

[55] The Charter was signed into law by Queen Elizabeth II on April 17, 1982, and the principles set out in
these clauses are embraced in ss. 7 and 11(d) of the Charter. Those sections provide:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice.
…
11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal;

[56] An important element of the right to a fair trial provided by ss. 7 and 11(d) of the Charter is the
accused person’s right to make full answer and defence, which is facilitated by the Crown’s duty to disclose
relevant information in its possession: R. v. Bjelland, 2009 SCC 38 (CanLII).

[57] I agree with and adopt the observations of the Honourable Peter Cory in his report on the Inquiry
Regarding Thomas Sophonow that:
If Crown Counsel, Defence Counsel and the Judiciary fulfill their demanding roles our system should
work effectively. Yet I acknowledge that constant vigilance will always be required to ensure that it does.
It is essential that the administration of justice does all that is humanly possible to avoid instances of
wrongful conviction. It should not happen. If it does, the occasions must be rare. To argue that there are
many cases of wrongful conviction is to contend that our system is fundamentally flawed and in disarray
and that is not apparent.

[58] Prosecuting Crown Counsel generally enjoy immunity from civil action because of the important role that
they play in the administration of justice. They cannot be sued for recklessness or negligence, even gross
negligence, nor for the bona fide exercise of prosecutorial discretion.

[59] Prosecutors’ immunity is, however, lost if they deliberately withhold material information from a
criminally accused person, and the result of that withholding is the conviction and incarceration of the criminally
accused person that would not have occurred if the information had been disclosed.

[60] Mr. Justice Sopinka commented in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R., 326
at paras. 9, 11 and 12 [Stinchcombe] that:

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[9] …the law with respect to the duty of the Crown to disclose is not settled. A number of cases have
addressed some aspects of the subject. See, for example, Cunliffe v. Law Society of British Columbia
(1984), 1984 CanLII 537 (BC CA), 40 C.R. (3d) 67 (B.C.C.A.); Savion v. The Queen (1980), 1980
CanLII 2872 (ON CA), 13 C.R. (3d) 259 (Ont. C.A.); R. v. Bourget (1987), 1987 CanLII 208 (SK
CA), 56 C.R. (3d) 97 (Sask. C.A.). No case in this Court has made a comprehensive examination of the
subject. The Law Reform Commission of Canada, in a 1974 working paper titled Criminal Procedure:
Discovery (the "1974 Working Paper") and a 1984 report titled Disclosure by the Prosecution (the "1984
Report"), recommended comprehensive schemes regulating disclosure by the Crown but no legislative
action has been taken implementing the proposals. Apart from the limited legislative response contained in
s. 603 of the Criminal Code, R.S.C., 1985, c. C-46, enacted in the 1953-54 overhaul of the Code
(which itself condensed pre-existing provisions), legislators have been content to leave the development of
the law in this area to the courts.
…
[11] It is difficult to justify the position which clings to the notion that the Crown has no legal duty to
disclose all relevant information. The arguments against the existence of such a duty are groundless while
those in favour, are, in my view, overwhelming. The suggestion that the duty should be reciprocal may
deserve consideration by this Court in the future but is not a valid reason for absolving the Crown of its
duty. The contrary contention fails to take account of the fundamental difference in the respective roles of
the prosecution and the defence. In Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16,
Rand J. states, at pp. 23-24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to
obtain a conviction, it is to lay before a jury what the Crown considers to be credible
evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all
available legal proof of the facts is presented: it should be done firmly and pressed to its
legitimate strength but it must also be done fairly. The role of prosecutor excludes any
notion of winning or losing; his function is a matter of public duty than which in civil life
there can be none charged with greater personal responsibility. It is to be efficiently
performed with an ingrained sense of the dignity, the seriousness and the justness of
judicial proceedings.
[12] I would add 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.

[61] In Henry v. British Columbia (Attorney General), 2015 SCC 24 (CanLII) [Henry SCC], the Supreme
Court of Canada held that Mr. Henry could pursue a claim for damages pursuant to s. 24(1) of the Charter
against the Crown for prosecutorial misconduct absent proof of malice.

[62] At paras. 30 – 31, Mr. Justice Moldaver, writing for the majority of the Court, held that:
[30] A constitutional question is posed in this case:
Does s. 24(1) of the Canadian Charter of Rights and Freedoms authorize a court
of competent jurisdiction to award damages against the Crown for prosecutorial
misconduct absent proof of malice?
[31] In the context of Mr. Henry's claims, I would answer this question in the affirmative. Where a
claimant seeks Charter damages based on allegations that the Crown's failure to disclose violated his or
her Charter rights, proof of malice is not required. Instead, a cause of action will lie where the Crown, in
breach of its constitutional obligations, causes harm to the accused by intentionally withholding
information when it knows, or would reasonably be expected to know, that the information is material to
the defence and that the failure to disclose will likely impinge on the accused's ability to make full answer
and defence. This represents a high threshold for a successful Charter damages claim, albeit one that is
lower than malice.

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[63] At paras. 61 and 67 – 68, Moldaver J. explained:
[61] … while I recognize that disclosure decisions pose challenges for prosecutors, they do not
implicate the high degree of discretion involved in the decision to initiate or continue a prosecution. As
described in Crown policy manuals throughout the country, the decision to lay charges is governed by two
primary factors: first, whether there is a reasonable prospect of conviction and second, whether the
prosecution would be in the public interest. Manifestly, the "public interest" factor puts substantial
discretion in the hands of Crown counsel. That discretion gives prosecutors such a high degree of latitude
that the only plausible way to contest it is to assess the underlying motives. No such discretion exists in the
disclosure context, and it is therefore unhelpful to require proof of an improper purpose in an action
alleging wrongful non-disclosure. Given that disclosure decisions are not a matter of discretion, the
motives of the prosecutor in withholding certain information from the accused are immaterial.
…
[67] Disclosure is one of the Crown's fundamental obligations in a criminal prosecution. The Crown is
duty-bound to disclose relevant information to the defence, and this obligation is a continuing one. This
stringent and, at times, heavy burden on the Crown guarantees an accused's ability to make full answer and
defence. Indeed, this was precisely the reason that the Court affirmed a constitutional right to disclosure
more than two decades ago in Stinchcombe:
... [t]here is [an] overriding concern that failure to disclose impedes the ability of the
accused to make full answer and defence. This common law right has acquired new
vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and
Freedoms as one of the principles of fundamental justice.... The right to make full
answer and defence is one of the pillars of criminal justice on which we heavily depend to
ensure that the innocent are not convicted. [Citation omitted; p. 336]
[68] Canadians thus rightly expect that the Crown will fulfill its disclosure obligations with diligence
and rigour. By and large, Crown attorneys working on the front lines of our criminal justice system exceed
these expectations on a daily basis. I pause here to note that Mr. Henry's allegations of non-disclosure
arise, in the main, from events that occurred during the pre-Stinchcombe era, when Crown disclosure
practices were not as robust as they are today. Nevertheless, our system remains imperfect, and wrongful
failure to disclose is not a mere hypothetical -- it can, and does, happen, sometimes taking an extraordinary
human toll and resulting in serious harm to the administration of justice.

[64] In reasons concurring in the result, Chief Justice McLachlin and Madam Justice Karakatsanis observed at
paras. 110 – 111 and 113 – 114 that:
[110] For instance, according to Mr. Henry, the Crown withheld a large number of victim statements
despite repeated defence requests for full disclosure of these statements. No victim statements, police
reports or forensic reports were disclosed prior to the commencement of trial. Many victim statements
remained undisclosed throughout the trial and, according to Mr. Henry, contain material inconsistencies
that would have been helpful for his defence. Mr. Henry also alleges that forensic evidence relating to the
perpetrator's spermatozoa remained undisclosed throughout the trial, again despite repeated specific
requests. On the contrary, the Crown adduced evidence to the effect that no forensic evidence was located
at any of the crime scenes that could be used to help identify the perpetrator. Further, police reports
relating to another suspect were not disclosed. The sole issue at trial was the identity of the perpetrator and
the Crown's case rested on victim identifications.
[111] If proven at trial, these facts would indisputably establish a breach of Mr. Henry's disclosure rights
under s. 7 of the Charter. The government does not appear to dispute the violation of Mr. Henry's
Charter rights.
…
[113] By any measure, the facts alleged by Mr. Henry are egregious. The Crown allegedly withheld
highly relevant and exculpatory evidence, despite repeated and specific defence requests for disclosure.
The impact on Mr. Henry's ability to make full answer and defence is obvious. Mr. Henry was convicted
on all charges at trial, was declared a dangerous offender, and spent 27 years behind bars. Following his

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convictions in 1983, Mr. Henry continued to proclaim his innocence and seek review of his case. His pleas
were finally heard after the police reopened its investigation into a string of unsolved sexual assaults
similar to those for which Mr. Henry was convicted. This investigation resulted in the conviction of a man
who had been a suspect in Mr. Henry's case. As a result, a Special Prosecutor was appointed to review
Mr. Henry's convictions, leading to the 2008 disclosure of substantial police file materials. In 2010 he was
finally acquitted on all counts by the British Columbia Court of Appeal. The court held that no properly
instructed jury, acting reasonably, could have rendered a guilty verdict on any of the counts: para. 142.
[114] Mr. Henry was wrongfully convicted and imprisoned by the state for 27 years. On the facts alleged,
the fairness of his trial was directly and seriously compromised by the breach of his s. 7 right to full
disclosure. In these circumstances, an award of Charter damages under s. 24(1) may provide some
compensation for the hardships Mr. Henry has endured. Obviously, no amount of money can restore to
him the decades he has spent behind bars. However, a monetary award may offer some compensation for
this long period of wrongful imprisonment and the many lost life opportunities it entails.

[65] These are the passages to which Moldaver J. apparently adverted when he stated at para. 81 of his
reasons:
I agree with my colleagues that Mr. Henry alleges very serious instances of wrongful non-disclosure that
demonstrate a shocking disregard for his Charter rights.

Test for Wrongful Non-Disclosure

[66] At para. 85, Moldaver J. set out a four-part test for the liability threshold for establishing wrongful non-
disclosure in Mr. Henry’s claim:
At trial, a claimant would have to convince the fact finder on a balance of probabilities that (1) the
prosecutor intentionally withheld information; (2) the prosecutor knew or ought reasonably to have known
that the information was material to the defence and that the failure to disclose would likely impinge on
his or her ability to make full answer and defence; (3) withholding the information violated his or her
Charter rights; and (4) he or she suffered harm as a result. To withstand a motion to strike, a claimant
would only need to plead facts which, taken as true, would be sufficient to support a finding on each of
these elements.

APPLICATION OF LEGAL PRINCIPLES

1. Were Mr. Henry’s Charter Rights Breached?

[67] As discussed above, the first part of the Ward test assessing whether damages should be awarded under
s. 24(1) of the Charter requires the plaintiff to establish that a Charter right has been breached. With
regard to the alleged wrongful non-disclosures, the first part of the Ward test must be met through the application
of the four-part test set out by Moldaver J. at para. 85 of Henry SCC, quoted above.

[68] Before applying Moldaver J.’s four-part test, I will address two preliminary issues regarding Mr. Henry’s
mental state, and the Province’s argument that the Crown’s duty of disclosure should be assessed by the
disclosure standards of 1982.

A. Mr. Henry’s mental state at the time of the alleged Charter breaches

[69] In my view, the question of whether Mr. Henry’s Charter rights were breached must be considered in
the light of Mr. Henry’s state of mind after his arrest, and he must be taken as he was at that time. This approach
is consistent with the approach discussed by Madam Justice Wilson, for a unanimous Court, in Janiak v.
Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146 at 159 [Janiak]:

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… So long as he is capable of choice the assumption of tort damages theory must be that he himself
assumes the cost of any unreasonable decision. On the other hand, if due to some pre-existing
psychological condition he is incapable of making a choice at all, then he should be treated as falling
within the thin skull category and should not be made to bear the cost once it is established that he has
been wrongfully injured.

[70] Dr. Grounds is a forensic psychiatrist and an Honorary Research Fellow in the Institute of Criminology
and a Fellow of Darwin College at the University of Cambridge. In the past 30 years, Dr. Grounds has assessed
59 individuals who have been released from imprisonment after findings of their wrongful conviction. He states,
and I accept, that he has knowledge of the long-term prognoses of some of the individuals he has so assessed,
and is familiar with the range of complex difficulties that can be experienced by wrongly convicted individuals.

[71] Dr. Grounds described Mr. Henry as having a deprived and unstable upbringing in which he experienced
violence, sexual victimisation, poor relationships with peers and a lack of academic success. He opined that
Mr. Henry was mentally destabilized when he was making important decisions about trial matters, including
legal representation.

[72] Dr. Grounds testified that after Mr. Henry was charged with the offences, Mr. Henry felt overwhelmed
and uncomprehending about the multiple charges against him. Dr. Grounds concluded that Mr. Henry developed
complex and abnormal persecutory beliefs while in custody on remand and expressed the view that Mr. Henry's
sense of the unfairness of Crown Counsel’s non-disclosure, how complainant statements close in time to the
assaults seemed not to exist, and how forensic and medical evidence seemed not to exist, fed into his sense of
being the victim of a conspiracy.

[73] Dr. Grounds’ view is that Mr. Henry’s thinking and ability to organize his thoughts were very
compromised at the time of his trial. Dr. Grounds further testified that Mr. Henry's delusional disorder persisted
over the years while he was pursuing his appeals.

[74] Although Mr. Henry was found fit to stand trial, I nonetheless accept the opinions of Dr. Grounds that I
have set out in the preceding three paragraphs. They are supported to some extent by the opinion of
Dr. Lohrasbe, although he did not see Mr. Henry until 2009 when he interviewed him at the Mountain Institute
where he was then incarcerated.

[75] Based in part on his 2009 interviews of Mr. Henry and his daughter Tanya Olivares, together with a
review of various medical records, Dr. Lohrasbe found Mr. Henry to be rigid in his beliefs and expectations,
with “only a limited degree of insight into the disjunction between his perceptions and beliefs and objective
reality” that traced back to the time of his arrest on the charges of which he was acquitted by the Court of
Appeal.

[76] Dr. Lohrasbe recounted Mr. Henry’s account of the circumstances leading up to his trial, conviction, and
subsequent designation as a dangerous offender, and conceded that even in 2009, he was unable to follow the
account. He listed Mr. Henry’s prior mental health problems as including mistrust and paranoia, “fantasy v.
reality”, hostility toward authority, private logic, paranormal beliefs and phenomena, and personality
dysfunction.

[77] Dr. Paul Janke is a forensic psychiatrist who interviewed Mr. Henry on two occasions in 2014. He
described Mr. Henry’s psychiatric diagnosis prior to his arrest in 1982 as meeting the criteria for “Conduct
Disorder, Severe, Early Onset”, and felt that he met the criteria at that time for the diagnosis of “Antisocial
Personality Disorder”. Dr. Janke’s comments do not detract from Dr. Grounds’ views set out above.

[78] I find that Mr. Henry was mentally destabilized at the time he was making important decisions about trial
matters, including legal representation.

B. By what standard should Crown Counsel’s duty of disclosure be assessed?

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[79] The Province concedes that a decision not to disclose information to an accused person is not a decision
that engages an act of prosecutorial discretion, but the Province contends that a key question is whether the
knowledge imputed to Crown Counsel is to be assessed according to the state of knowledge in 1982 or 2015. I
disagree.

[80] The Province contends that in 1983, the practice of the day was that statements made by the complainants
contained in police reports or police notes were not treated in the same way as “true statements”, that is, signed
statements that the complainants made in their own hand or that were transcribed verbatim. The Province further
contends that police notes were not viewed as requiring disclosure in the absence of an evidentiary foundation
laid by an accused or his counsel at trial.

[81] The Province referred me to several authorities in support of its position. Among those authorities was
the Supreme Court of Canada’s decision in Hill. There Mr. Hill appealed the dismissal of his civil case against
the police board for negligent investigation. The dismissal was upheld by the Ontario Court of Appeal. The
circumstances of that case were similar in some respects to the present case. Mr. Hill was arrested on 10 counts
of robbery, all of which the police believed to have been committed by the same person. The strongest evidence
against Mr. Hill came primarily from eye witness identifications of varying strength. However, there was also
exculpatory evidence, and nine of the charges were withdrawn before trial.

[82] Mr. Hill was convicted on the sole remaining charge because two of the eye witnesses remained steadfast
in their identification of him. He was tried and wrongfully convicted. Although he was eventually acquitted, he
spent more than 20 months in jail as a result of the wrongful conviction.

[83] Chief Justice McLachlin, for the majority, determined that the Court should consider the conduct of the
investigating officers in the year 1995, the year in which the investigation was conducted, in all of the
circumstances. Acknowledging that the standard of care expected of a police officer in 1995 might be different
from that expected of a police officer today or in the future, Chief Justice McLachlin emphasized that the Court
should not expect perfection and should keep in mind the discretion that police officers must exercise in an
investigation.

[84] Given the guidance provided by Moldaver J. at paras. 60 – 61 and 67 – 68 in Henry SCC quoted above,
the reasoning of the Chief Justice in Hill respecting acceptable police conduct cannot be applied to the disclosure
duties of the Crown in 1982. If the practice of the Crown in 1982 was inconsistent with the Crown’s legal
disclosure obligations, the Crown’s practice at the time cannot set the standard for disclosure.

[85] The Province also referred me to a number of authorities predating the 1983 trial in this action: R. v.
Finland (1959), 1959 CanLII 445 (BC SC), 125 C.C.C. 186 (B.C.S.C.) [Finland]; R. v. Lantos, [1963]
B.C.J. No. 104 (C.A.) [Lantos]; R. v. Newman, [1979] B.C.J. No. 868 (S.C.) [Newman]; and some postdating
that trial: R. v. Hislop (1983), 1983 CanLII 1971 (ON CA), 43 O.R. (2d) 208 (C.A.) [Hislop]; and Cunliffe
v. Law Society (British Columbia) (1984), 1984 CanLII 537 (BC CA), 13 C.C.C. (3d) 560 (B.C.C.A.)
[Cunliffe].

[86] Finland, Lantos, and Newman each deal with disclosure Crown obligations prior to trial, but the Court in
those cases recognized that even prior to trial, the Crown’s discretion in deciding on disclosure must be
exercised fairly.

[87] In Finland, Mr. Justice Wilson, as he then was, was asked to order the production of "[a]ny statements
committed to writing made to the police prior to the preliminary hearing by witnesses who were called at the
preliminary hearing".

[88] In declining to do so, he commented at paras. 11 – 12 that in all criminal cases the Crown usually makes
complete disclosure so as to avoid taking the accused by surprise at trial. Wilson J. remarked that the Crown has
considerable discretion, but when in doubt, this discretion should be exercised in favour of the accused.

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[89] In Lantos, at para. 8, Mr. Justice Tysoe, for a unanimous Court, made a similar statement, emphasizing, in
part, the timing of the required disclosure and the expectation of fairness from the Crown:
I would add only that, in my opinion, an accused is not entitled, as a matter of right, to have produced to
him for his inspection before trial, statements or memoranda of evidence of Crown witnesses or
prospective witnesses, whether signed or unsigned. That is a matter within the discretion of the Crown
prosecutor who may be expected to exercise his discretion fairly, not only to the accused, but also to the
Crown. What might be thought to be proper in one set of circumstances may not be thought to be proper in
another.
[Emphasis added.]

[90] In Newman, the Crown had proceeded by way of a direct indictment, so there had been no preliminary
inquiry. One of the accused charged with first degree murder sought a pretrial order that the Crown be required
to furnish a copy of two statements made by a witness whom the Crown proposed to call at trial. A synopsis of
the evidence of this witness had been furnished by the Crown, but defence counsel wished to have the complete
statements produced for the purpose of comparing the evidence of the witness with the evidence of another
witness whose statement has been furnished. After considering Finland, Lantos, and other authorities, Chief
Justice McEachern declined to make the order, but held at para. 4 that:
These cases lead me to conclude that the law is reasonably well settled as follows.
1. The accused does not have an absolute right to obtain production of witness statements
before trial.
2. The production or non-production of witnesses' statements before trial is, generally
speaking, a matter for the discretion of Crown counsel who must keep in mind that his
role is not that of an ardent advocate but one who has a duty to ensure that the accused has
a fair trial. It seems to me the duty of Crown counsel regarding disclosure may be even
higher where the Crown proceeds by way of direct indictment, that it is for crown counsel,
in the first instance, to determine how he is to discharge his duty. (See Richard v. R. (No.1)
(1959), 1957 CanLII 510 (NB CA), 43 M.P.R. 229).
3. A trial judge has a general inherent jurisdiction to order production of statements of
witnesses or prospective witnesses at any time during the trial and in special
circumstances before trial.
[Emphasis added.]

[91] In Hislop, the Court was reviewing the order of a motions court judge which quashed the ruling of a
provincial court judge made in the course of a preliminary inquiry. Associate Chief Justice MacKinnon, for the
Court, commented at page 11 that:
Counsel for the respondents raised the issue of the applicability of certain provisions of the Canadian
Charter of Rights and Freedoms. These issues were not pressed before us as it was acknowledged
that, at the time of Judge Graham's ruling, the Charter had not been enacted and would not have been
considered by him. Since the preliminary hearing is to be continued, I content myself with saying that the
Charter does not alter the statutory role of the provincial judge in a preliminary hearing. The refusal to
order the production of the document, under the circumstances of this preliminary inquiry, does not, in my
view, offend any principle of fundamental justice.
[Emphasis added.]

[92] I am not persuaded that the comments relied upon by the Province in Hislop represent any omnibus
statement about the Crown’s disclosure obligations following a preliminary hearing either pre- or post-Charter.

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[93] Cunliffe was a case where the Court of Appeal considered an appeal by two Crown Counsel from a
decision of the Law Society of British Columbia finding them guilty of conduct unbecoming a member of the
law society and of professional misconduct in their roles as Crown Counsel in the prosecution of a charge of
murder. The Court overturned the finding with respect to one of the two Crown Counsel, but upheld the finding
against the other.

[94] The two Crown Counsel who had conduct of the case for the Crown were Mr. Bledsoe at the first trial,
where a mistrial was declared, and Mr. Cunliffe at the second trial.

[95] Mr. Bledsoe failed to inform defence counsel of four witnesses (referred to as the “Thursday witnesses”)
who had given evidence at the preliminary hearing that the victim was seen alive after the first of the two dates
his murder was alleged to have occurred in the charges against the accused.

[96] The Province referred me to the following passage from Mr. Justice Hinkson, for the Court, at paras. 45 –
46:
[45] The second issue dealt with by the Discipline Committee was whether there is a duty on
prosecuting counsel to give to the defence statements of witnesses whose evidence he deems to be adverse
to the prosecution or supportive of the defence. On this issue the Discipline Committee found, quite
properly:
A review of all the authorities indicates that no hard and fast obligation exists. Crown
counsel must have some discretion in that regard. Such an absolute duty does not appear
to exist within the scope of the decided cases ...
[46] I respectfully agree with that statement of the law.
[Emphasis added.]

[97] The isolation of this part of the reasons takes the comments of Hinkson J.A. out of their context. The
passage relied upon by the Province must be read in light of the earlier conclusions of Hinkson J.A. at paras. 33
– 38:
[33] The Discipline Committee stated that the following issues arose to be determined:
1. Is there a duty on prosecuting counsel to advise the defence in a timely manner of
the existence of witnesses whose evidence he deems to be adverse to the prosecution or
supportive of the defence?
2. Is there a duty on prosecuting counsel to give to the defence statements of
witnesses whose evidence he deems to be adverse to the prosecution or supportive of the
defence?
3. Is there a duty on prosecuting counsel to call witnesses whose evidence he deems
to be adverse to the prosecution or supportive of the defence?
[34] In determining the first issue the Discipline Committee made reference to a number of authorities.
It cited with approval the decision in Boucher v. The Queen 1954 CanLII 3 (SCC), [1955] S.C.R. 16,
110 C.C.C. 263, 20 C.R. 1 where Rand J. stated:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a
conviction, it is to lay before a jury what the Crown considers to be credible evidence
relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal
proof of the facts is presented: it should be done firmly and pressed to its legitimate
strength, but it must also be done fairly. The role of prosecutor excludes any notion of
winning or losing; his function is a matter of public duty than which in civil life there can
be none charged with greater personal responsibility. It is to be efficiently performed with
an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[35] Among other references the Discipline Committee cited the Canadian Bar Association's Code of
Professional Conduct at p. 29 as follows:

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When engaged as a prosecutor the lawyer's prime duty is not to seek to convict, but to see
that justice is done through a fair trial upon merits. The prosecutor exercises a public
function involving much discretion and power, and must act fairly and dispassionately...
(H)e should make timely disclosure to the accused or his counsel (or to the court if the
accused is not represented) of all the relevant facts and witnesses known to him, whether
tending towards guilt or innocence.
[36] The Discipline Committee concluded in respect of the first issue:
For the purposes of a defence in such a serious charge as this, and where the evidence of
the "Thursday" witnesses is so crucial, Crown counsel had a duty in our opinion to ensure
that defence counsel knew of the existence of those witnesses and that the witnesses had
made statements in writing shortly after the crime to members of the R.C.M.P.
[37] The Discipline Committee concluded that both Mr. Bledsoe and Mr. Cunliffe failed to fulfil their
duty in not disclosing the Thursday witnesses to the defence. The basis for that conclusion was the finding
of the Discipline Committee that:
... Mr. Bledsoe knew of the existence of the "Thursday witnesses" but did not ensure that
counsel for the defence knew of them. In addition, Mr. Bledsoe did not inform
Mr. Cunliffe that counsel for the defence was unaware of the "Thursday witnesses".
Mr. Cunliffe knew of the them but did not ensure that counsel for the defence knew of
them, did not make their statements available to counsel for the defence, and did not call
them as witnesses until so ordered by the court.
[38] Upon the basis of the findings of fact made by the Discipline Committee it is clear that
Mr. Bledsoe failed in his duty to advise Mr. Ritchie in a timely manner of the existence of additional
Thursday witnesses once he learned of Mr. Ritchie's ignorance of such witnesses. Mr. Bledsoe was clearly
in breach of his duty because he never informed Mr. Ritchie that such witnesses existed. Upon becoming
aware that Mr. Ritchie was ignorant that such witnesses existed Mr. Bledsoe's first decision was to
postpone performing his duty until the weekend when he could consult senior counsel. When the mistrial
occurred he then decided to leave it to the prosecutor who would take the second trial to inform
Mr. Ritchie. By the time he instructed Mr. Cunliffe on December 16, 1977 he was clearly in breach of his
duty but he could have remedied that breach by informing Mr. Cunliffe that Mr. Ritchie was unaware of
the existence of the additional Thursday witnesses. Mr. Bledsoe failed to do so therefore he never
performed his duty as Crown counsel.

[98] The unquoted part of para. 46 in the reasons of Hinkson J.A. continued as follows:
… However the Discipline Committee went on to criticize Mr. Cunliffe for the position he adopted in
response to Mr. Ritchie's motions on April 18, 1978 because they perceived in his submissions a
determination to keep the statements from the defence. They were critical of Mr. Cunliffe having
purported to adopt the procedure based on s. 10 of the Canada Evidence Act.

[99] It is followed by further context:

[47] In my opinion the course followed by Mr. Cunliffe on this occasion is above reproach. Rather
than asking Mr. Cunliffe for the statements Mr. Ritchie applied to the presiding trial judge for an order that
Mr. Cunliffe produce the statements to him. In view of Mr. Ritchie's position Mr. Cunliffe made reference
to s. 10 of the Canada Evidence Act and immediately produced the statements then in his possession
to the presiding trial judge. After perusing them the presiding trial judge directed Mr. Cunliffe to deliver
them to Mr. Ritchie, which he immediately did.
[48] In those circumstances it is difficult to appreciate the reasoning of the Discipline Committee which
led to its conclusion on the second issue. Counsel for the Law Society threw some light on the matter by
contending that it was apparent from the record of proceedings on April 18, 1978 that Mr. Cunliffe was
"stonewalling" the defence with respect to the production of the statements in question. It is by reason of
the fact that Mr. Cunliffe did not, in response to Mr. Ritchie's application, voluntarily turn over the

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statements to him immediately, that the Discipline Committee concluded that his conduct evinced a
determination to keep the statements from the defence.
[49] In my opinion the record of the proceedings on April 18, 1978 does not support that conclusion.
On that day Mr. Cunliffe was met with the motions made by Mr. Ritchie. He dealt with them as best he
could and in doing so made reference to s. 10 of the Canada Evidence Act. I find no fault
whatsoever in the course followed by Mr. Cunliffe on that occasion. Mr. Ritchie was seeking the assistance
of the court to obtain the names of the additional Thursday witnesses and copies of their statements and
Mr. Cunliffe was meeting the application by immediately producing the statements to the trial judge and
making submissions with respect to the production of the statements. As Mr. Ritchie was seeking the
assistance of the court it was proper for Mr. Cunliffe to deal with the matter upon the basis upon which he
did. The criticism of the Discipline Committee on this aspect of the matter is unfounded.
[Emphasis added.]

[100] When the passage relied upon by the Province is read in its appropriate context, it does not support the
position urged upon me by the Province that in effect, even at trial, if not before, Crown Counsel could withhold
disclosure from the accused or his counsel (or to the Court if the accused is not represented) of all of the relevant
facts and witnesses known to the Crown, whether tending towards guilt or innocence.

[101] The Province also relies on a passage from the decision of the Supreme Court of Canada in Reference re
Milgaard (Can.), 1992 CanLII 96 (SCC), [1992] 1 S.C.R. 866 at 870 [Milgaard], where the Court
commented:
Nor has evidence been presented that there was inadequate disclosure in accordance with the practice
prevailing at the time.
[Emphasis added.]

[102] Milgaard was a review of the conviction of a man for murder. The Court concluded that the fresh
evidence presented before it, particularly as to the locations and the pattern of sexual assaults committed by a
convicted serial rapist, constituted credible evidence which, taken together with the evidence adduced at trial,
could reasonably be expected to have affected the jury's verdict. The extent of the disclosure made to
Mr. Milgaard was not in issue in the case. In those circumstances, I do not consider that the Court was
establishing a test for the required disclosure standard in the passage relied upon by the Province.

[103] The adversion by the Court to the same phrase in United States v. Burns, 2001 SCC 7 (CanLII),
[2001] 1 S.C.R. 283 at 339 [Burns] is no more than a paraphrasing of the comments in Milgaard, and of no
greater moment than the initial use of the phrase. Burns was an appeal from an order requiring the extradition of
Mr. Burns and his co-accused to the United States to face murder charges, and the disclosure they had received
was not at issue on the appeal.

[104] I am not satisfied that the authorities cited to me by the Province require me to assess Crown Counsel’s
conduct in light of the standards for disclosure as opposed to the Crown’s duty of disclosure that were in place in
1982. However, even if the Crown’s conduct in this case must be assessed in light of the disclosure standards of
1982, I am not persuaded that those standards are materially different from the standards of today. In fact, the
evidence given by Crown Counsel who were acting at that time demonstrates that Crown Counsel were keenly
aware of their duty to disclose all relevant information to the accused.

[105] At para. 88 in Henry SCC, Moldaver J. held that:

Knowledge of the materiality of the information and the consequences of a failure to disclose can be
imputed based on what a reasonable prosecutor would know in the circumstances.

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[106] In portions of her examination for discovery that were read into evidence at the trial before me,
Ms. Milliken agreed that in 1982, the Crown owed a duty to Mr. Henry to disclose to him all relevant evidence.
It was her evidence that she was not involved in the disclosure to Mr. Henry, and that the disclosure in the case
was made, or not made, by Mr. Luchenko.

[107] Ms. Milliken acknowledged that Provincial Crown Counsel Mr. Ross Tweedale, as he then was, had
authored a Handbook for Crown Counsel, British Columbia Department of Attorney General, and that the 1981
version advised under the title "The Role of Crown Counsel in the Criminal Justice System" in the last sentence
that Crown Counsel:
… does have a duty to offer all the relevant evidence or make it available to the defence.

[108] The following exchange took place during Ms. Milliken’s evidence at trial:
Q "Provincial Court Criminal Practice Crown Counsel Handbook Second Edition, Ross Tweedale."
A Yes.
Q And the second edition is indicated on the cover page as being November 1983?
A Yes.
Q And page 25 at the bottom right-hand corner, there's -- under paragraph 2?
A Yes.
Q It reads as follows:
Crown disclosure pretrial. Unless you are concerned about the security of a
witness or tampering with a witness, the practice is developed whereby the Crown
will disclose fully all the evidence in its possession before the preliminary inquiry
and trial including, (i) the narrative of the alleged offence from the police report;
(ii) all statements given by an accused, inculpatory or exculpatory; (iii) the
accused's record. (b) at trial, where witness statements have been withheld
because of potential interference with them, disclosure is usually made at trial just
before the witness is called. If defence counsel is taken by surprise by an
unexpected witness, you can expect an application for an adjournment being
granted.
That's in accordance with your understanding of disclosure in the early 1980s?
A Generally, yes.

[109] Mr. Allan Stewart, Q.C., a Provincial Crown Counsel at the time of Mr. Henry’s trial, gave clear evidence
that the principles set out in R. v. Boucher, 1954 CanLII 3 (SCC), [1955] S.C.R. 16 [Boucher], and in
particular the passage set out therefrom in Stinchcombe referred to above, guided him as a Provincial Crown
Counsel at that time.

[110] The following exchange respecting that passage took place during Mr. Stewart’s cross-examination:
MR. BROOKS:
Q The question, Mr. Stewart, is do those paragraphs that I read you, were they -- we'll go back a little
bit, the principles enunciated in the Boucher case were they brought to the attention of trial prosecutors,
I'm not interested in appellant prosecutors but do you know if this was a matter of policy as it existed at
the trial level in 82 and '83?
MR. HUNTER: Well, if the question is whether it was policy, I think I can sit down, but the first part.
MR. BROOKS:
Q Policy is what I'm interested in, whether that was the policy at the Crown's office. Was the policy to
comply with the Supreme Court of Canada in the Boucher decision?
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A As far as I'm concerned, for every prosecutor, knowing of the thrust of what was said by the
Supreme Court of Canada in Boucher and in other cases was like the fish being aware that he's in water. It
was everything. We didn't talk to one another over coffee about do your duty. We -- in those days as I say, I
was there at creation and the thing grew like topsy. We didn't have policy books floating around, and I
think the one time a policy book did show up a couple of us flipped through it and found that it said
nothing. These were things that floated in from Victoria. So what I'm trying to say is it was the world -- it
was the reason we weren't mere lawyers; okay? That people who were Crown counsel knew that they were
in a special position. We didn't have to announce it every morning. People didn't have to give us lectures.
It was what you were. Somewhere in here -- I can't remember if it's in here or elsewhere, the Supreme
Court of Canada refers to the Crown counsel as being a small minister of justice. In addition to this, there
were things that reverberate through the Crown counsel system in British Columbia such as those of us
who had worked in the pre-1974 system, even as juniors, which was my role, had encountered people like
Al Melvin and Sam Toy and George Murray, and when you sat with them in the old Coffee Garden
restaurant at the Georgia at lunchtime, what came through and what they were talking about and what they
were doing was a firm and certain understanding that you were to be firm but fair. Anything relevant by
way of law, fact to the case, no matter which way it cut, had to be brought to the attention of the court or
counsel for the accused. Drawing case law to the attention of the court that bore on whatever was before
the court regardless of how it cut was something I was very much alive to because for good or ill I spent a
lot of time trying to keep up with what was coming out of the Supreme Court of Canada and the court of
appeal. I'm answering this badly, but it's as if you asked me does a baseball -- is a baseball player aware of
the fact that he ought to hit the ball. Yeah. It's -- it's the world we lived in.

[111] Ms. Sandra Cunningham, Q.C. is a Provincial Crown Counsel who was involved with the Henry file prior
to Mr. Luchenko. Ms. Cunningham authored a memorandum to another Crown Counsel, Barry Williamson,
dated August 8, 1982. In it she wrote in part:
Suggest Re Particulars:
1. [accused’s] State[ment]
2. Investigation Report on each count in information
3. General allegations re similar fact
No copies of any victim’s stat[ement]s / no verbatim recitation of victim’s report to police.

[112] I accept Ms. Cunningham’s evidence that she did not intend to suggest in her memo that victims’
statements or verbatim recitations of victims’ reports to police be withheld from Mr. Henry or his counsel, but
rather that it was her intention to note that such statements or reports were simply not in Crown Counsel’s file at
that time.

[113] Ms. Cunningham also explained the difference between the record of a witness interview and a witness
statement in her evidence as follows:
Well, a statement in terms of Crown counsel talk, a statement is a handwritten, in those days a handwritten
statement of a witness. And an interview is questioned by a police officer and answered by a witness. Not
always verbatim. So a police officer can interview someone and then say, talked to so and so on such and
such a date he or she said blah, blah, and that's an interview. It isn't necessarily in Crown counsel talk, it
isn't a statement of a witness. It may be for all intents and purposes the same thing ultimately, but it's not --
an interview doesn't necessarily mean it is the witness's own words and only their words.

[114] Ms. Cunningham agreed as follows:

Q I understand. They're both equally as important?
A Yes. Well, except for ones -- ones in the words of a witness and the other could be in the words of a
police officer writing down what was told to him or her by a witness.

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Q And of course you would agree both group of documents you've just described would be important
for defence counsel to have, yes?
A Yes.

[115] I am prepared to accept that the disclosure obligations of the Crown must be assessed as at 1982 when the
disclosure obligations in this case first arose, but I am not persuaded that those obligations were subjective or
that they were significantly different then from what they were in 2015.

[116] I find that in 1982 and now, the Crown has a duty to disclose relevant material, whether or not it intends
to introduce it into evidence. Material is considered relevant if it can reasonably be used by the accused either in
meeting the Crown’s case, advancing a defence, or otherwise making a decision that may affect the conduct of
the defence. The Crown must err on the side of inclusion, and bears the onus of disclosing all material that is not
clearly irrelevant.

[117] Acknowledging as did Moldaver J. at para. 68 of Henry SCC, that “during the pre-Stinchcombe era…
Crown disclosure practices were not as robust as they are today”, I nonetheless find that the disclosure made to
Mr. Henry and his counsel before and at his preliminary hearing, and before and during his trial, failed to
comply with Crown Counsel’s duty of disclosure as articulated in Boucher and expanded upon by Ms. Milliken,
Mr. Tweedale, Mr. Stewart, and Ms. Cunningham, which I find was the standard of the Provincial Crown
Counsel’s office at the relevant times in Mr. Henry’s case. That duty was to make timely disclosure to the
accused or his counsel (or to the Court if the accused is not represented) of all the relevant facts and witnesses
known to him, whether tending towards guilt or innocence as described in para. 35 of Cunliffe as set out above.

C. What evidence did the Crown have before or during Mr. Henry’s trial?

[118] I accept the uncontradicted evidence of Det. Harkema that he provided certain documents and
information to Mr. Luchenko. Regrettably, as set out in the statement of agreed facts to which I have referred
above, Mr. Luchenko had passed away before the trial in this action began. He was not deposed or examined for
discovery prior to his death. Mr. White, who was Mr. Henry’s lawyer at his preliminary hearing, was not called
to give evidence. I was not advised that any application was made by the Province to question him, on the basis
that Mr. Henry might arguably have be taken to have waived solicitor/client privilege over the disclosure that
Mr. White received while acting for Mr. Henry.

[119] Based primarily upon Det. Harkema’s evidence, I will set out what I accept that the Provincial Crown had
in its possession by the time Mr. Henry’s trial, or before, that was not disclosed to Mr. Henry or his lawyers.

i. Wire-Tap, DNR, Surveillance, and Tracking Device Evidence

[120] The Crown was provided by the VPD with information used for the Wiretap Application. The Crown had
records of the results from that wire-tap, the DNR, the Tracking Device and the surveillance of Mr. Henry from
May 15 to June 7, and June 8 to July 23, 1982. Crown Counsel also had Ms. Jessie Henry’s statement to the
VPD and a photograph obtained from her by the police.

[121] Prior to the dismissal of his conviction and sentence appeals, neither Mr. Henry, nor the lawyers who
were engaged on his behalf before the trial from time to time, were provided with notice of the existence of:

• the application materials, warrant, and resulting data related to the DNR;

• the application materials, warrant, and resulting data related to the Tracking Device;

• the application materials and the order related to the Wiretap Application;

• the VPD police report that detailed the unsuccessful efforts to tie the plaintiff to the sexual
assaults through a fluorescent powder test;
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• the VPD reports that showed that 20 sexual assault complainants had been shown numerous
photographs and had participated in the RCMP’s Witness Suspect Viewing System; and

• the VPD reports related to the surveillance of the plaintiff by the VPD and its agents from May
15, 1982 until June 7, 1982 and again from June 8, 1982 until July 23, 1982.

[122] While I find that Mr. Henry was aware that he was under surveillance for at least a part of those time
periods, that does not excuse Crown Counsel’s failure to disclose the results of that surveillance to him.

ii. Physical Evidence: Tool Marks, Clothing, Fingerprints and Spermatazoa

[123] In a confidential bulletin provided to Crown Counsel prior to Mr. Henry’s trial, the VPD advised that on
arrest, Mr. Henry's tools should be seized as evidence. Also in Crown Counsel’s file prior to Mr. Henry’s trial
was a police report in which Officer Howland advised that he had searched Henry's car in 100 Mile House and
seized his tools.

[124] The seizure of Mr. Henry’s tools from his car took place on May 12, 1982. The tools were seized without
a warrant, and later underwent tool mark comparison by the VPD, with "negative” results, which was not
communicated to either Mr. Henry or any of his lawyers.

[125] On April 29, 1982, the Vancouver Police Department seized clothing belonging to Mr. Henry from
Ms. Henry's home on East 17th as evidence. Mr. Henry testified, and I accept, that he was never advised either
before or during his trial that a warrant had been executed in relation to the residence on East 17th. He was
further never shown any other documentation by the Crown indicating what clothing of his was in the possession
of the police, including any information regarding efforts made by the VPD to match his personal clothing to the
clothing described by the complainants.

[126] The VPD had Mr. Henry’s fingerprints by July 31, 1982. Undisclosed to Mr. Henry and his lawyers prior
to the dismissal of his conviction and sentence appeals was the fact that the police obtained fingerprints from a
broken glass at P.B.’s suite.

[127] Despite repeated written requests from Mr. Henry and his counsel for all forensic reports, including
medical and serology reports, the Crown did not disclose to Mr. Henry medical, lab and police reports showing
that perpetrator spermatozoa had been located for four of the sexual assaults, including the assault of the woman
I have referred to as C.A.

iii. Evidence Relating to the May 12, 1982 Line-Up

[128] Six of the trial complainants attended the May 12, 1982 line-up: B.Q., P.B., K.K., H.M., D.I., and C.A.

[129] P.B. and H.M. did not write down Mr. Henry’s number on their ballots. D.I. also did not write
Mr. Henry’s number on her ballot, but she did write down number 18, which is the number of a foil. K.K. wrote
"12/18” on her ballot, which were the numbers, respectively, of Mr. Henry and a foil. C.A. wrote on her ballot,
"Number 12 by his voice only”. B.Q. wrote "#12 ? right size & build also French accent (slight) noticed”.

[130] The Crown failed to disclose statements that appear to have been made by some of the complainants in
relation to the May 12, 1982 line-up, including:

• C.A.’s explanation of why she wrote Number 12 on her ballot. Among other things, she told police that
Number 12 was "talking at the same level of sound” as her attacker, "and it was quite loud”;

• statements made by B.Q. immediately following the line-up;

• a statement made by H.M. at a September 1, 1982 post-charge re-interview, in which she described the
May 12 line-up and explained why she did not identify anyone;

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[131] It was not disclosed to Mr. Henry or his lawyers prior to the dismissal of his conviction and sentence
appeals that some of the trial complainants who viewed the May 12 line-up were shown a photo of this line-up at
the re-interviews conducted by the Det. Harkema after the plaintiff was charged.

iv. Complainants’ Evidence

[132] B.Q., P.B., K.K., P.G., H.M., D.I., C.A., and J.F. were the complainants who Mr. Henry was convicted of
assaulting.

[133] With respect to statements and reports made in relation to the assault of B.Q., Crown Counsel only
disclosed the statement B.Q. made at her August 16, 1982 post-charge re-interview.

[134] By the time of Mr. Henry’s trial, Crown Counsel had the following additional evidence respecting the
assault of B.Q., none of which was disclosed to Mr. Henry or his lawyers:

• two police investigative reports dated May 5, 1981, the date B.Q. was assaulted, including B.Q.’s
description of her attacker that she provided to the first officer on the scene, PC Gibson;

• police property and exhibit records dated May 28, 1981 and June 30, 1981;

• undated notes from an interview of B.Q. by the police, apparently conducted immediately following the
May 12, 1982 line-up;

• the notes of the four police officers who investigated her complaint;

• a city analyst’s undated Lab worksheet;

• a miscellaneous and supplementary police report dated July 29, 1981;

• a further investigative police report dated June 16, 1981;

• notes of B.Q.’s interview by the police of August 16, 1982;

• a statement by B.Q. to police dated August 31, 1982;

• an undated statement that provides a perpetrator description;

• a scenes of crime report dated June 16, 1981; and

• an undated city analyst’s Lab worksheet.

[135] B.Q. testified that she was shown two photo line-ups shortly after she was attacked on May 5, 1981. She
also described attending a live line-up that she believed occurred in October 1981. Neither Mr. Henry nor his
lawyers were advised of this information.

[136] With respect to statements and reports made in relation to the assault of P.B., Crown Counsel only
disclosed P.B.’s August 31, 1982 post-charge statement, which provided no physical description of her attacker.

[137] By the time of Mr. Henry’s trial, Crown Counsel had the following additional evidence respecting the
assault of P.B., none of which was disclosed to Mr. Henry or his lawyers:

• an undated miscellaneous and supplementary report;

• a miscellaneous and supplementary report dated July 29, 1981;

• police investigative reports dated June 16, 1981, the date P.B. was assaulted;

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• interview notes of P.B. by the police dated August 31, 1982;

• a VPD property and exhibit record date June 30, 1981;

• a scenes of crime report with the complete date uncertain;

• a list of items seized at the location of the assault of P.B.; and

• notes of two investigating police officers.

[138] With respect to statements and reports made in relation to the assault of K.K., Crown Counsel only
disclosed a statement K.K. made on the day she was attacked, August 5, 1981 and a statement that K.K. made
after Mr. Henry was charged with her attack, at her re-interview on August 19, 1982.

[139] By the time of Mr. Henry’s trial, Crown Counsel had the following additional evidence respecting the
assault of K.K., none of which was disclosed to Mr. Henry or his lawyers:

• two investigation reports dated August 5, 1981, the date K.K. was assaulted;

• a miscellaneous and supplementary report dated August 5, 1981; and

• the notes of an investigating police officer.

[140] K.K. testified at the trial that she attended a line-up prior to the May 12 line-up, at which time she picked
someone out with a question mark. This information was not disclosed to Mr. Henry or his lawyers prior to the
dismissal of his conviction and sentence appeals.

[141] With respect to statements and reports made in relation to the assault of P.G., Crown Counsel only
disclosed a single undated statement that P.G. testified she may have made in November 1981.

[142] By the time of Mr. Henry’s trial, Crown Counsel had the following additional evidence respecting the
assault of P.G., none of which was disclosed to Mr. Henry or his lawyers:

• investigative reports dated October 17, 1981 (the date P.G. was assaulted) and May 13, 1982;

• three miscellaneous and supplementary reports dated October 17, 1981;

• another police investigative report dated May 13, 1982;

• notes of P.G.’s interview by the police of September 8, 1982;

• a statement by P.G. to the VPD dated November 12, 1982, made immediately after testifying at the
preliminary hearing;

• undated notes of another interview of P.G. by the VPD;

• notes of two investigating police officers; and

• a statement taken from P.G.’s boyfriend on the day of the offence.

[143] P.G. testified that she attended a live line-up in November 1981 with 11 or 12 other women, who viewed
the line-up in two separate groups and had the opportunity to hear the men’s voices. She marked down a number
as looking similar to her assailant but said that he was not the man. She also testified that on the Monday after
she was attacked she attended the courthouse at 222 Main Street for the purpose of seeing whether she could
identify anyone in the audience in a couple of court rooms but she picked no one out. This information was not
disclosed to Mr. Henry or his lawyers prior to the dismissal of his conviction and sentence appeals.
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[144] With respect to statements and reports made in relation to the assault of H.M., Crown Counsel only
disclosed H.M.’s February 24, 1982 statement, which contains no description of her attacker other than that he
had a big tongue.

[145] By the time of Mr. Henry’s trial, Crown Counsel had the following additional evidence respecting the
assault of H.M., none of which was disclosed to Mr. Henry or his lawyers:

• two police investigative reports dated February 22, 1982, the date H.M. was assaulted, in which H.M.
describes her assailant;

• a miscellaneous and supplementary report of the same date;

• notes of H.M.’s interview by the police of February 24, 1982 and September 1, 1982;

• a police property office query;

• a VPD property and property and exhibit record;

• notes of two investigating police officers;

• a Lab worksheet dated February 22, 1982;

• a memorandum from the Lab dated February 25, 1982; and

• a composite sketch based upon H.M.’s description of her attacker, made on February 29, 1982, which
includes a written description and interview notes made by Crown Counsel prior to trial.

[146] With respect to statements and reports made in relation to the assault of D.I., Crown Counsel only
disclosed a statement D.I. made on March 10, 1982, the day of her attack, and another made at a post-charge re-
interview on August 17, 1982.

[147] By the time of Mr. Henry’s trial, Crown Counsel had the following additional evidence respecting the
assault of D.I., none of which was disclosed to Mr. Henry or his lawyers:

• an undated statement by D.I. to the police;

• a composite drawing of the so-called rip-off rapist;

• police investigative reports dated March 10, 1982;

• miscellaneous and supplementary police reports dated March 10, March 23, and April 3, 1982;

• a statement by D.I. to the police dated March 11, 1982; and

• notes of the investigating police officers.

[148] With respect to statements and reports made in relation to the assault of C.A., Crown Counsel only
disclosed C.A.’s August 13, 1982 statement.

[149] By the time of Mr. Henry’s trial, Crown Counsel had the following additional evidence respecting the
assault of C.A., none of which was disclosed to Mr. Henry or his lawyers:

• undated notes of an interview of C.A.;

• two investigative reports dated March 19, 1982, the date C.A. was assaulted;

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• a miscellaneous and supplementary report dated March 19, 1982;

• a scenes of crime report dated March 19, 1982;

• a statement by C.A. to the police dated March 29, 1982;

• a Lab worksheet dated March 24, 1982;

• a property office record dated March 25, 1982;

• a Lab exhibit report dated April 1, 1982;

• a police property receipt dated December 2, 1983; and

• notes of the investigating police officers.

[150] With respect to statements and reports made in relation to the assault of J.F., Crown Counsel only
disclosed the statement J.F. made to police on July 28, 1982. This statement includes no physical description of
her attacker.

[151] By the time of Mr. Henry’s trial, Crown Counsel had the following additional evidence respecting the
assault of J.F., none of which was disclosed to Mr. Henry or his lawyers:

• VPD investigation reports dated June 8, 1982, the date J.F. was assaulted;

• miscellaneous and supplementary police reports;

• one undated and two dated June 8, 1982;

• a Lab worksheet dated June 11, without any year indicated;

• a transcript of J.F.’s interview under hypnosis by a police officer dated October 25, 1982;

• an undated report of the surveillance of Mr. Henry; and

• a police report to Crown Counsel dated July 29, 1982.

v. Evidence Relating to Other Suspects

[152] Undisclosed to Mr. Henry or his lawyers prior to the dismissal of his conviction and sentence appeals
were VPD reports showing that McRae and a “Mr. Richards” were VPD suspects in the sexual assaults, and that
in May and July 1982, McRae had been arrested for late-night predatory behaviour in two of the neighbourhoods
where the offences were occurring.

vi. Other Evidence

[153] Other records in the possession of Crown Counsel by the time of Mr. Henry’s trial included:

• similar records and statements relating to 15 additional complainants;

• additional surveillance notes;

• ballots from the some complainants who attended the police line-up that Mr. Henry was forced to
participate in;

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• medical reports relating to P.B., D.I., C.A., and four other complainants whose complaints did not
underlie the charges faced by Mr. Henry at trial;

• VPD property office and identification documents;

• application materials for a wiretap order obtained by the VPD; and

• other police documents pertaining to the so-called rip-off rapist.

[154] The Crown did not disclose a memorandum that had been prepared by VPD S/Sgt. K. Miles sometime
between July 6 and August 5, 1981 (the “Miles Memo”). The Miles Memo discussed 10 sexual assaults that the
VPD believed had been committed by the same person, and indicated that the police were conducting
surveillance of two suspects identified only as “Hobson” and “Richards”. “Hobson” is an alias that was used by
Mr. McRae. Mr. Henry was ultimately tried for two of the complainants whose sexual assaults were discussed in
the Miles Memo.

[155] The Crown also did not disclose to Mr. Henry or his lawyers that Det. Harkema did not believe the right
person was being charged with the assault of C.A. Det. Harkema testified that he told Mr. Luchenko that he did
not believe that Mr. Henry had committed the assault against C.A., but Mr. Luchenko “was the one making the
decisions”.

D. Was disclosure intentionally withheld from Mr. Henry by Crown Counsel?

[156] After his arrest, Mr. Henry was represented by a series of lawyers, who made numerous written requests
to Crown Counsel for disclosure of a number of items, including:

a) all statements made by the victims and reduced to writing in a VPD member’s notes or
otherwise, including but not limited to statements made to the first VPD member on the
scene;

b) copies of all particulars regarding any line-ups held in the matter; and

c) copies of all medical reports or other reports, such as serology and hair and fibre reports.

[157] By letter of August 9, 1982, Mr. Murray L. Smith asked for particulars of the charges and:
… copies of statements made by witnesses to the police.

[158] The broadest demand came in a letter from Mr. Ken Young dated August 12, 1982, stating:
Further to our meeting with your Mr. Sweeney of the morning of August 12, 1982, we write to confirm
that we have now, hopefully firmly, put this matter over for Preliminary Hearing, unto 10:00 A.M.
MONDAY, NOVEMBER 1, 1982 (Court Room 512), and for the two weeks then following.
We have, further, arranged a meeting (9:00 A.M. WEDNESDAY, AUGUST 25, 1982) with the Chief
Administrative Judge, for the purpose of securing from him, a further block of time either prior/subsequent
to the date presently scheduled.
In the circumstances, it is our view that, in order to make the case (at this stage, at least) as easy of
management and economical of time as can be, it would be in the interests of both the Crown and the
administration of justice, generally, that the Defence be provided 'contrary to the customary policy of your
offices), with the following pertinent information and materials:
(a) Copies (by way of copies of the Policemen’s notes or otherwise) of all statements,
by way of description, offered to the first attending Policeman/person in authority by all
Complainants.

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(b) Copies of all statements of Complainants, generally, as reduced to writing.
(c) Copies of all statements of Witnesses (other than Complainants) relative to
description/descriptions offered of the vehicle/vehicles observed.
(d) Copies of all statements of the accused (whenever taken and in whatever
circumstances).
(e) Copies of all medical and other technical reports (viz: serology, alcohol, hair
and fibre etc.).
(f) Copies of all particulars re: line ups, generally (and inclusive, specifically of
line up photographs, line up sheets, line up ballots).
Provided that the materials to which we have referred are, in due course, delivered to
us, it is our view that the length of the proceedings presently scheduled shall, to some
significant degree, be reduced.
The extent policy of your office entirely aside, surely, the Crown either has a case or it
does not. The provision of the materials to which we have referred (to all of which, at some stage
or other of the proceedings we are entitled, on application) shall not increase or diminish that
"case" assuming it exists at all, in any measure.
Accordingly, we thank you, in anticipation, for your assistance and co-operation and leek
forward to your reply.

[159] On September 10, 1982, Mr. White wrote to the Crown. His letter stated in part:
I would ask at this time that you forward to me full and complete particulars on each and every count of
the Indictment re the above. I would ask that you forward to me copies of photos of any line-ups which
may have been held, particulars of recent complaints, and in summary, complete particulars on all
evidence which you intend to adduce.

[160] As was the practice at the time, particulars summarizing the charges were provided to Mr. Young’s office
by telephone.

[161] On October 6, 1982, Mr. White wrote to the Crown. His letter stated:
On September 10, 1982 I wrote to you requesting further particulars, with reference to all the counts re the
above. In view of the seriousness of the charges and the varying allegations, I would ask that you forward
these to me forthwith.

[162] Mr. Henry discharged Mr. Young before his preliminary hearing, but thereafter filed a variety of court
applications in which he made requests for disclosure adopting the language used by Mr. Young in his requests.

[163] None of the materials detailed in Mr. Young’s letter were provided, nor was Mr. Henry advised whether
any such materials or information existed or not.

[164] After the preliminary hearing began on October 27, 1982, but before his trial, Mr. Henry sought the same
disclosure as had Mr. Young, with a similar result.

[165] Mr. Henry filed an application for habeas corpus dated November 19, 1982.

[166] Mr. Henry wrote a letter to Mr. Luchenko on November 21, 1982 stating, in part:
haven't any counsel anymore.
…
Further to the prelim, I have sent in copy form alibi's for myself.

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…
So what I would ask from your dept is these materials
Copies of all medical and technical reports - (hair, serology, fibre's- etc.)
Lineups held, where held. Who was the officer's in charge. Who was in charge of
photographs.
All arresting officers. Gilly and Marine Drive - May 12-82, Pickup - July 29 - all officers
names -
Statements, complaints reduced to writing.
Policemen's notes or otherwise by way of description, offered by the first attending
officers of these assaults of rapes!

[167] Mr. Henry wrote a letter to Mr. Luchenko received in the Crown Counsel office on November 26, 1982 in
which he referred to having sent in alibi information, and also asked for disclosure including of complainant
statements and “copies of all medical and technical reports – hair, serology, fibers, etc.”

[168] On November 30, 1982, Mr. Henry filed an application in this Court, seeking “productive statements of
all complainants” and “medical and technical reports”.

[169] On December 7, 1982, several court applications brought by Mr. Henry were heard by Mr. Justice
MacDonnell, including:

(a) A demand for particulars for:

1. Productive statements of all complainants.
2. Exhibit A. Photograph Lineup.
3. Medical and technical reports, (viz: serology hair fibre etc.)
4. Transcript of evidence from preliminary hearing;

(b) An application for a writ of habeas corpus dated November 30. 1982; and
(c) A motion to quash, Court file no. CC821716.

[170] The transcript of the hearing before MacDonnell J. is unavailable, but the hearing took place ex parte
Mr. Henry. The hearing of the applications occupied but some three minutes, and at its conclusion, Mr. Henry’s
applications were dismissed.

[171] On December 13, 1982, Mr. White advised Crown Counsel that he was no longer acting for Mr. Henry.
Mr. Henry declined the appointment of Richard Peck as his counsel on January 13, and again on January 23,
1983.

[172] On January 19 and again on February 23, 1983, Mr. Henry was found fit to stand trial in the opinion of
Dr. Joseph Noone, a psychiatrist.

[173] On February 10, 1983, Mr. Henry wrote a letter addressed to Mr. Luchenko and the Registrar of this
Court, which also states that it is copied to Mr. Luchenko, which stated, in part:
Further to all requests made to you and the Honourable Court with regards to transcripts etc. – now my
concern is
Copies) [sic] by way of copies of policeman’s notes or otherwise, of all statements by way
of descriptions of first attending police
all statements by complainants, production statements in own writing of the crime, if
possible in their own writing.

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medical evidence Spermology, hair, fibre and physical evidence.
all evidence generally given to defence counsel in their defending clients.
We look forward to your reply.

[174] Mr. Henry wrote another letter to Mr. Luchenko, dated February 11, 1983. The letter is date stamped as
received by the Crown Counsel office on February 14, 1983. The letter concludes with the following statement:
In conclusion all material, statements, all medical, physical evidence should and must be sent to me
directly. No legal aid involved.

[175] By letter dated February 21, 1983, Mr. Henry was provided notice that the Crown intended to read in
J.F.’s preliminary inquiry evidence at the trial.

[176] By letter dated February 23, 1983, Mr. Luchenko provided Mr. Henry with a copy of a photograph that
was taken of the physical line-up held on May 12, 1982.

[177] On the morning of February 28, 1983, the trial commenced and Mr. Henry requested that Crown Counsel
disclose the trial complainants’ statements to him. In response, Mr. Luchenko provided him with approximately
11 of the statements made by the eight trial complainants.

[178] By the time that his trial had begun, Mr. Henry had been provided with 66 pages of disclosure materials
consisting of 11 statements to the police by the eight complainants whose complaints underlay the charges faced
by Mr. Henry at trial, statements to the police from other complainants, his own statement to the police, a photo
of the line-up that he was forced to attend and particulars provided by telephone. Much of what was in the
possession of the Provincial Crown Counsel by the time of Mr. Henry’s trial was never disclosed to him or his
lawyers prior to the dismissal of his conviction and sentence appeals, nor were copies of these documents
provided to him.

[179] By way of contrast, Dr. Noone, the psychiatrist who assessed Mr. Henry’s fitness to stand trial, was
provided with some 170 typewritten foolscap pages of police reports.

[180] Nothing that might be described to as forensic evidence was provided to Mr. Henry or his counsel.
Indeed, when the case against Mr. Henry was reviewed by Det. Harkema in 2001, he commented that:
… the biggest concern that I have now, and had originally, is the appalling attitude of SOME of the
forensic people in dealing with “Rape” scenes. There was little forensic evidence collected, and if there
was any, it was disposed of in a hap-hazard manner by the technicians who were the receivers of the
evidence. I believe that the V.P.D. would do well to review the DISPOSAL OF FORENSIC EVIDENCE
policy in place at that time to ensure there is some form of ownership of the actual destruction of these
items and scientific material. I also found that whatever “Latent Prints” there may have been, were
disposed of without knowing what the results were, or at least no documentation is available to show what
happened to them. The question is, “Were the Latents ever compared to Ivan Henry’s prints?” I believe
they were, but there is no record of this so it is a non factor.
[Emphasis by Det. Harkema.]

[181] Mr. Henry filed numerous court applications and represented himself until approximately 2008 in all
post-conviction and sentence proceedings concerning his case that I have referred to above.

[182] In Henry SCC at para. 86, Moldaver J. explained the evidentiary burden on a plaintiff alleging the
intentional withholding of information by Crown Counsel:
Nothing in the formulation of this test alters the methods by which finders of fact assess intent. The
common sense inference that individuals intend the natural and probable consequences of their actions

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applies: R. v. Walle, 2012 SCC 41 (CanLII), [2012] 2 S.C.R. 438, at paras. 58-63, citing R. v. Daley,
2007 SCC 53 (CanLII), [2007] 3 S.C.R. 523. As a result, the evidentiary burden on the claimant is
not a high one. To demonstrate that the Crown intentionally withheld information, a claimant need only
prove that prosecutors were actually in possession of the information and failed to disclose it.
Alternatively, a claimant could show that prosecutors were put on notice of the existence of the
information and failed to obtain possession of it, in contravention of their disclosure obligations: see R. v.
McNeil, 2009 SCC 3 (CanLII), [2009] 1 S.C.R. 66, at para. 49. In both of these circumstances, the
intention to withhold may be inferred. This inference is available to the finder of fact, but is not
mandatory. Furthermore, it is always open to the Crown to lead rebuttal evidence to show that the
withholding was not intentional.

[183] I find that Mr. Henry has proven that he put the Crown on notice of what he wished disclosed to him and
that Mr. Luchenko was in possession of that information, but failed to disclose it.

[184] I am satisfied on the balance of probabilities that the information that I have discussed at paras. 122 to
156 above were in Mr. Luchenko’s possession prior to and during Mr. Henry’s trial. Accepting the evidence of
Ms. Milliken that she played no role in the fulfillment of the Crown’s disclosure duties, I find that Mr. Luchenko
made intentional decisions on more than one occasion not to provide disclosure of the documents or the
information I discussed in those paragraphs to Mr. Henry or his lawyers.

E. Did Mr. Luchenko know or ought he reasonably to have known that the information was material
to the defence and that the failure to disclose it would likely impinge on Mr. Henry’s ability to make
full answer and defence?

[185] The second element of the four-part test articulated by Moldaver J. in Henry SCC is explained by him at
paras. 87 – 90 of his reasons:
[87] The next element of the test relates to the Crown's knowledge of the materiality of the information
and the consequences of withholding it. Under this element, to be material, the information must be
relevant and "directed at a matter in issue in the case": R. v. B.(L.) (1997), 1997 CanLII 3187 (ON
CA), 35 O.R. (3d) 35, at p. 44. That said, the mere fact that information is material to the defence does not
necessarily mean that the failure to disclose it will likely impinge on the accused's ability to make full
answer and defence. While related, the two concepts are distinct, and each must be established.
[88] Knowledge of the materiality of the information and the consequences of a failure to disclose can
be imputed based on what a reasonable prosecutor would know in the circumstances. Once it is found that
information was intentionally withheld which any prosecutor, acting reasonably, should have disclosed, I
see no reason why an accused who has suffered harm should be denied a cause of action. I stress, however,
that by incorporating a reasonableness aspect into the knowledge element, I am not endorsing a
negligence-based standard as the applicable liability threshold. Taken together, the two elements I have
described -- intent, and actual or imputed knowledge -- rise above a purely objective "reasonableness" or
"marked departure" standard grounded in a duty of care paradigm.
[89] The purpose of the intent and knowledge elements is not to shield prosecutors from liability by
placing an undue burden on claimants to prove subjective mental states. Rather, these elements are
designed to set a sufficiently high threshold to address good governance concerns, while preserving a
cause of action for serious instances of wrongful non-disclosure. As pleaded, the facts of Mr. Henry's case
would meet this threshold.
[90] One final point on the liability threshold bears mentioning. It is not uncommon in the course of a
criminal prosecution for disclosure decisions to be challenged, and for a court to determine the lawfulness
of the Crown withholding certain information. If a court rules that information sought by the defence need
not be disclosed, then the Crown's failure to disclose will have the benefit of a judicial imprimatur. It
would not be accurate to say, in these circumstances, that the Crown intentionally "withheld" information
from the accused. Even if the judicial determination is later overturned, no liability for Charter damages
will lie for non-disclosure.

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[186] The importance of the right to disclosure and the Crown's duty to disclose has been emphasized in a
number of the authorities, and in inquiry reports relating to wrongful conviction: see Re Cunliffe and Law
Society of British Columbia, supra; Hoem v. Law Society of British Columbia (1984), 1985 CanLII 447 (BC
CA), 20 C.C.C. (3d) 239 at 253 (B.C.C.A.); R. v. C.(M.H.) (1988), 1988 CanLII 3283 (BC CA), 46 C.C.C.
(3d) 142 at 154–156 (B.C.C.A.), per McEachern J.A. (in dissent), rev’d (1991), 1991 CanLII 94 (SCC), 63
C.C.C. (3d) 385 at 393–395 (S.C.C.); McTaggart v. Ontario, [2000] O.J. No. 4766 at paras .36-68, 96-97 (Sup
.Ct. J.); R. v. Denbigh, 1990 CanLII 526 (BC SC), 1990 CanLII 526 (B.C.S.C.); R. v. Burr and Burr, 1985
CanLII 2637 (SK CA), 1985 CanLII 2637 (S.K.C.A.); R. v. La, 1997 CanLII 309 (SCC), [1997] 2
S.C.R. 680; and the Sophonow Inquiry Report, pp. 77-78, 80-81.

[187] The Canadian Bar Association’s Code of Professional Conduct, c. VIII, para. 7, adopted by its Council in
August of 1974, while not binding on me, is also instructive regarding the perceived duties of Crown Council at
that time:
When engaged as a prosecutor the lawyer’s prime duty is not to seek to convict, but to see that justice is
done through a fair trial upon the merits. The prosecutor exercises a public function involving much
discretion and power, and must act fairly and dispassionately. He should not do anything which might
prevent the accused from being represented by counsel or communicating with counsel and to the extent
required by law and accepted practice, he should make timely disclosure to the accused or his counsel (or
to the court if the accused is not represented) of all relevant facts and witnesses known to him, whether
tending towards guilt or innocence.
[Emphasis added.]

[188] In determining whether Mr. Luchenko knew or ought reasonably to have known that the undisclosed
information was material to the defence, the impact that the undisclosed information might have had if it had
been disclosed to Mr. Henry or his counsel must be assessed.

i. Wire-Tap, DNR, Surveillance, and Tracking Device Evidence

[189] Ms. Henry’s statement to the VPD was not disclosed to Mr. Henry. It included details relating to
Mr. Henry that were inconsistent with at least part of the profile of the so-called rip-off rapist. Her statement
included the following:
• He will not shave off his moustache because he is very conscious of his teeth. He has a gap
between his two (2) upper front teeth, and one (1) tooth is loose. ..
• He has several tattoos on his arms…
• He likes to keep himself clean. He is not greasy…
• He does not own any underwear. He sometimes wears Y.M.C.A. shorts. He is circumcised…
• He does not own a turtleneck sweater to my knowledge, but he could have owned one. The one
that the police got from my place is mine…
• I have never seen him wearing a belt…

[190] The Harkema MCS Report is significant not just for the surveillance details, but as an overview of a
variety of matters in the investigation, including the warrants, that were never disclosed to Mr. Henry or his
lawyers.

[191] A reasonable prosecutor would have known or ought reasonably to have known that this information was
material to the defence and that the failure to disclose would likely impinge on the ability to make full answer
and defence.

ii. Physical Evidence: Tool Marks, Clothing, Fingerprints and Spermatazoa

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[192] Mr. Henry's defence was based in part on the absence of physical evidence linking him the crimes. On
March 8, 1983, in making submissions on his directed verdict motion, Mr. Henry referred to the absence of
physical evidence connecting him to the offences, stating:
... they have no fingerprints. Out of so many charges we should have fingerprints. Out of so many charges
we should have fibres. Out of so many charges we should have anything, I mean just anything, because
then it would take me off the hook. And I’m the guy that has to prove I’m innocent to you people, and
that’s not fair.

[193] However, as the undisclosed materials reveal, there was physical evidence, and it did not link him. His
tools were tested and excluded. Had it been disclosed, this would have been damaging to a Crown case that was
based on the fallacious assertion to the jury (Court?) "we tried our best but could not find any physical/forensic
evidence that could assist in identifying a perpetrator." A reasonable prosecutor would have known or ought
reasonably to have known that this information was material to the defence and that the failure to disclose would
likely impinge on the ability to make full answer and defence.

[194] At the time of Mr. Henry's trial, serology testing held the potential to exclude him as the perpetrator of
the four assaults. There is no evidence that the police or Crown conducted serology testing regarding the four
assaults where evidence of semen was found. Had the evidence of the recovery of semen been disclosed at trial,
Mr. Henry could have asked the Crown to conduct such testing. If the evidence had been disclosed even earlier,
Mr. Henry’s counsel could have made such a request. If the Crown refused, Mr. Henry or his lawyers could have
applied to the Court to have serology tests performed or asked the jury to draw an adverse inference from the
Crown's failure to do so.

[195] The fact that an accused's prints do not match known crime scene prints, in particular an object the
perpetrator may have touched, is information that a reasonable prosecutor would have known or ought
reasonably to have known was material to the defence and that the failure to disclose would likely impinge on
Mr. Henry’s ability to make full answer and defence.

iii. Evidence Relating to the May 12, 1982 Line-Up

[196] The undisclosed evidence included B.Q.’s comments regarding the May 12 line-up that Number 12 (i.e.,
Mr. Henry) was "the only one that was the right size and build”. This comment exposed a frailty in the line-up,
namely, the fact that all of the foils were taller than Mr. Henry and the perpetrator, most considerably so.

[197] H.M.’s explanations for why she did not select anyone in the line-up varied significantly between her
undisclosed statement of September 1, 1982 and her testimony at trial. At trial she testified that, among other
things, she felt that she had to be absolutely certain before identifying anyone, she did not think the line-up was
being taken seriously, she got no good look at Mr. Henry’s face, and his voice was muffled. In contrast, in her
September 1, 1982 statement, H.M. indicated that she was under pressure, was upset and nervous, and did not
think Mr. Henry was her assailant, but “realized later that a part of [her] didn’t allow [herself] to make an I.D.”.

[198] The undisclosed statement made by H.M. could have been used at trial to undermine her testimony as to
her reasons for not selecting Mr. Henry in the line-up.

[199] If disclosed, C.A.’s statement that she wrote Number 12 on her ballot because of the loudness of his voice
could have been used to attack the reliability of her tentative May 12 identification, given that in all of her other
statements she indicated that her assailant spoke in a whisper or half whisper.

iv. Complainants’ Evidence

[200] Identification was the most critical issue at Mr. Henry’s trial. The many inconsistencies in the undisclosed
evidence relating to each of the complainants had the potential to seriously undermine the identifications they
made at and before trial. I will discuss several examples of these inconsistencies below.

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[201] B.Q.’s identification of Mr. Henry was based on voice. Had B.Q.’s undisclosed statements been
disclosed, they could have been used to undermine her voice identification. There were inconsistencies in B.Q.’s
description of the perpetrator’s voice among the statements she made to police, the testimony she gave at the
preliminary inquiry, and the testimony she gave at trial. There were also elements of B.Q.’s description of her
attacker’s voice that were inconsistent with Mr. Henry, such as her indication that her attacker had a French
accent, which Mr. Henry does not have.

[202] P.B. identified Mr. Henry based on appearance and voice. As noted above, the only statement made by
P.B. that was provided to Mr. Henry contained no physical description of her attacker. However, in PC Kean’s
report there was a description of P.B.’s attacker that she gave on the night of the offence, which was not
disclosed to Mr. Henry.

[203] The non-disclosure of P.B.’s various statements adversely impacted Mr. Henry’s defence. There were
significant inconsistencies between the description of the perpetrator that P.B. gave to PC Kean and the evidence
P.B. gave at trial, including her description of the attacker’s voice, facial structure, and hair.

[204] P.B.’s August 31, 1982 statement states that on July 29, 1981 she went on a walk-about with police on
Main St. and saw no one she thought was her attacker. She also testified to that effect at trial, and further
testified that she did not see anyone who she felt was familiar. However, PC Kean’s report made on July 29,
1981 reveals that the walk-about was intended to provide P.B. with an opportunity to view a suspect who worked
at Main Electronics. The report goes on to say that P.B.’s reaction at Main Electronics was quite different from
her reaction at other stores, and that P.B. indicated to PC Kean that the young man who worked at that store was
“the type”, and something happened when she looked at him, although she could not make a positive
identification.

[205] There were also apparent inconsistencies between PC Kean’s report and the evidence P.B. gave at trial
with regards to the circumstances of the attack, including the question of whether a glass on which fingerprints
were found was broken during the attack, whether the attacker put his hand over her mouth, and when and how
the perpetrator discontinued the assault.

[206] K.K. identified Mr. Henry based on voice. With respect to her attacker’s voice, the statement of K.K. that
was disclosed to Mr. Henry includes, "His voice was usually muffled as he usually kept his arm in front of him”.

[207] The Crown also disclosed the statement that K.K. made after Mr. Henry was charged with her attack, at
her re-interview on August 19, 1982. It states that "He still had his arm in front of his face and his voice was low
and muffled. His voice was husky and medium in range, like the way they sometimes portray 'bad guys' on t.v.”.
At trial, she testified to the same effect as her post-charge statement, except that she did not mention that the
man’s arm muffled his voice.

[208] As mentioned above, K.K.’s evidence that she participated in another line-up before the May 12 line-up
in which she picked out with a question mark a suspect who was not Mr. Henry, was not disclosed to Mr. Henry
or his lawyers and could have been used to undermine her identification of Mr. Henry.

[209] P.G.’s identification of Mr. Henry was based on appearance and voice. The undisclosed documents
relating her assault include a conversation between P.G. and VPD members in which she tentatively identified
another man who had recently been selling tickets at her apartment as her attacker, based on his lisp.

[210] The undisclosed documents contain details inconsistent with or not found in P.G.’s trial testimony,
including details regarding the perpetrator’s lisp, his hair, and his facial appearance.

[211] The Crown also failed to disclose a statement that P.G. made on November 12, 1982, just after she
finished testifying at the preliminary hearing, in which she said that she recognized Mr. Henry as her attacker
upon entering the courtroom because of his mouth, which had a large lower lip. In none of her statements or
testimony other than her statement of November 12, 1982 did P.G. mention a large lower lip or anything else
about the appearance of her attacker's mouth, nor did she ever indicate that her identification of Mr. Henry was
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based on recognizing his mouth as that of her attacker. The inconsistency between her November 12, 1982
statement and her other statements and testimony could have been used to undermine her identification
evidence.

[212] P.G.’s boyfriend told PC Wolff that when he arrived at P.G.’s suite, at about 6:55 a.m., she told him that
she did not get a good look at her attacker. PC Wolff’s report suggests that P.G. was present when the boyfriend
was interviewed, and thus would have heard this part of the exchange. Her statement that she did not get a good
look at the man could have been used to undermine the reliability of her identification evidence at trial.

[213] H.M.’s identification of Mr. Henry was based on appearance and voice. As discussed above, the Crown
only disclosed H.M.’s February 24, 1982 statement to Mr. Henry, in which her attacker was only described as
having a large tongue. Several of the undisclosed documents contained more detailed descriptions of H.M.’s
attacker, descriptions which were inconsistent with what she provided at trial, including with regards to her
assailant’s hair, facial hair, and voice.

[214] For example, she testified at trial that she recognized Mr. Henry’s voice as being that of her attacker and
that the voice was distinctive, although she did not say why. On the day of the incident she told police that her
attacker sounded American and to Crown Counsel she added that he "seemed to have trouble talking -
slur/accent”. There is no evidence that Mr. Henry had an accent, spoke with a slur or otherwise had trouble
talking. Had H.M.’s four statements been disclosed, she could have been cross-examined to bring out the
inconsistencies between her earlier statements and her trial description of her attacker.

[215] D.I.’s identification of Mr. Henry on trial was based on appearance and voice. The Crown disclosed two
of D.I.’s statements, but as indicated above, did not disclose two police reports, which revealed that, within three
weeks of her attack, D.I. at least once and arguably twice identified another man as her attacker. On both
occasions, D.I. contacted police about a possible suspect. On one occasion, the suspect was arrested.

[216] Had they been disclosed, the police reports of D.I.’s identification of men other than Mr. Henry as her
attacker may have been employed to seriously undermine the reliability of her trial identification evidence. They
show that she misidentified someone on one or two occasions as well as at the May 12, 1982 line-up, when she
wrote only a foil's number on her ballot.

[217] The undisclosed reports also weaken D.I.’s claim at trial to possess, through her job, a special skill in
remembering people, and to have studied her attacker's face so as to remember it forever. The undisclosed
reports also reveal that the men she believed to be her attacker differed in appearance from Mr. Henry in that
they had brown or dark brown hair, not red, and the man arrested on April 3, 1982 was considerably younger
than Mr. Henry.

[218] A number of other inconsistencies exist between the information in these reports and D.I.’s trial
testimony. One of the two undisclosed March 10, 1982 reports by PC Wood, the officer who attended at D.I.’s
apartment within minutes of her assault, contained her narrative of the attack, and the other her description of the
perpetrator.

[219] The inconsistencies between the information in PC Wood’s reports and D.I.’s later statements and
testimony include details relating to the perpetrator’s facial hair, facial features, age, body odour, genitalia,
physical strength, and whether the perpetrator’s collar was pulled up over his face when D.I. first encountered
him.

[220] C.A.’s identification of Mr. Henry was based on voice. She testified that her attacker spoke in a "very
slow, gruff, and quite controlled' voice. The Crown disclosed only her August 13, 1982 statement, in which she
described the man's voice as "a gruff, harsh whisper”. The Crown did not disclose the police report made the day
of the attack, in which she described her assailant without mentioning anything about his voice. Nor did the
Crown disclose her signed statement, made 10 days later, in which she described the perpetrator’s voice as "a
half-whispering voice, sounded very nervous”.

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[221] The undisclosed statements by C.A. could have been used to show that she materially changed the
description of her attacker's voice after hearing Mr. Henry speak at the May 12, 1982 line-up. Indeed, the
description provided in her undisclosed signed statement – "a half-whispering voice, sounded very nervous” – is
substantially inconsistent with the three distinctive elements mentioned in her trial testimony (slowness,
gruffness and control).

[222] J.F. identified Mr. Henry based on appearance. This was not, however, until she underwent a hypnosis
session conducted by Det. Barnard on July 26, 1982, the day before she first viewed the photo line-up. An
audiotape of the session was transcribed, but neither the transcript nor tape was disclosed at trial.

[223] The transcript of J.F.’s hypnosis session reveals that Det. Barnard repeatedly told her that an image of her
attacker existed in her "mind’s eye", “like a camera will zoom in and freeze it like a photograph", and that she
could report what she saw in this "photograph" as if reading a story-book. J.F. was then asked whether she would
be able to identify the attacker if she saw him again. Her response was “I don’t know. I think so.”

[224] This excerpt had the potential to support an argument that prior to viewing the photo line-up the next day,
J.F. had some doubt as to her ability to identify her attacker.

[225] As noted above, the only statement of J.F.’s that the Crown provided to Mr. Henry contained no physical
description of her attacker. The Crown did not disclose the report of PC Andrews, to whom J.F. provided a
description about 18 hours after the assault. That report states that J.F. was trembling and shaking, and notes:
"She also feels that she may be subconsciously blocking out some of susp.’s description as she knows she stared
at him, but had difficulty describing him. She testified she has been in a state of numbed shock for several
hours".

[226] PC Andrews’ report is inconsistent with J.F.’s trial testimony in several respects, including J.F.’s
description of the attacker’s age, his hair, and facial features.

[227] The materiality of the notes of the first responding officers, who recorded in their notes statements of the
complainants, is very apparent: the notes could have formed a basis for confirmation of the details of perpetrator
description provided by complainants in the earliest stages.

[228] Although I accept that Crown Counsel did not have a duty to disclose relevant evidence to Mr. Henry
before trial, it had the option to do so. If the evidence of the complainants’ other statements had been provided to
Mr. Henry’s lawyers while they were still acting for him, I find that competent counsel would have been
apprised of the fact that the police believed that only J.F. could visually identify Mr. Henry, and would have
sought severance of the counts. Mr. Henry’s counsel would also have been in a better position to provide advice
to Mr. Henry and to challenge the complainants’ testimony in the preliminary inquiry.

[229] The information I have described at paras. 190 to 229 above was material and a reasonable prosecutor
would have known that failure to disclose it would impinge on full answer and defence.

v. Evidence Relating to Other Suspects

[230] Had details of McRae's predatory actions at night as reflected in police reports, at locations so close to so
many of the assaults been disclosed, Mr. Henry could have brought this evidence to the attention of the jury and
its impact could have been powerful. Further, Mr. Henry could have cross-examined police investigators
involved in the McRae surveillance as to features and characteristics of McRae (his body odour, hand size) with
a view to establishing doubts concerning the identification evidence.

[231] The Miles Memo related to McRae could, if disclosed, have led Mr. Henry to appreciate that the man
who lived across the street from him was a suspect in the offences and had a history of sexually-related crimes.
This information could in turn have been very significant for the jury.

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[232] A reasonable prosecutor would have known or ought reasonably to have known that the information
about other suspects was material to the defence and that the failure to disclose would likely impinge on
Mr. Henry’s ability to make full answer and defence.

vi. Other Evidence

[233] Mr. Henry could have utilized the undisclosed police reports to cross-examine on the fact that for reasons
unknown (and still unknown) police were taking active steps to investigate him at a time that appears to pre-date
Ms. Henry having contacted them about her husband.

[234] That a lead investigator does not believe that the right person is charged with an offence is quite
obviously material. Had Mr. Henry known this at trial, he could have questioned Det. Harkema concerning it,
and the jury would have learned the reasons why the lead investigator held that view. It would have been highly
damaging to the Crown case on that count, and to the credibility of the Crown in the eyes of the jury.

[235] A reasonable prosecutor would have known or ought reasonably to have known that he should not be
proceeding on this count at all in these circumstances. Further, the information was material to the defence and
failure to disclose would obviously impinge on the ability to make full answer and defence.

[236] As for the police notes of investigators Sims, Campbell and Harkema, they would have filled the many
missing gaps for Mr. Henry and would have brought home to him those aspects of the investigation that had
been withheld from him, including other suspects, warrants, the forensic dust, tool marks, etc.

[237] A reasonable prosecutor would or ought reasonably to have known that the information in the notes and
reports was material to the defence and failure to disclose would impinge on the ability to make full answer and
defence.

F. Judicial Imprimatur

[238] The Province asserts that if Crown Counsel failed to disclose information or documents sought by the
plaintiff, such failure was validated by judicial decisions that such disclosure was not required. Particulars of
such validation are alleged to include the following:

(a) The plaintiff’s pre-trial application for production of statements was dismissed by Mr. Justice
MacDonnell on December 7, 1982; and

(b) Bouck J. ruled at trial that the Crown was not required to disclose medical or other reports which it
did not intend to rely upon.

[239] At para. 91 of Henry SCC, Moldaver J. addressed the situation where the Court has made a determination
that the Crown need not make certain disclosure. He wrote:
One final point on the liability threshold bears mentioning. It is not uncommon in the course of a criminal
prosecution for disclosure decisions to be challenged, and for a court to determine the lawfulness of the
Crown withholding certain information. If a court rules that information sought by the defence need not be
disclosed, then the Crown's failure to disclose will have the benefit of a judicial imprimatur. It would not
be accurate to say, in these circumstances, that the Crown intentionally "withheld" information from the
accused. Even if the judicial determination is later overturned, no liability for Charter damages will lie
for non-disclosure.

[240] The Province contends that the rulings of Mr. Justice MacDonnell and the trial judge fall within what
Moldaver J. described as a judicial imprimatur.

[241] I do not consider that MacDonnell J.’s refusals of Mr. Henry’s requests, in Mr. Henry’s absence, rise to
the level of a judicial imprimatur as discussed by Moldaver J. The application before MacDonnell J. occupied
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but three minutes and there is no statement by the judge that even suggests that he was advised by Mr. Luchenko
of what had and had not been provided to Mr. Henry, and certainly no discussion of the lawfulness of the Crown
withholding any particular information.

[242] I find that before the trial judge’s refusal to order the production of the names of the doctors who treated
the complainants, Crown Counsel did not advise Bouck J. that he was in possession of any medical information.
This failure caused Bouck J. to consider Mr. Henry’s request in the abstract, rather than with the benefit of
knowing what information Crown Counsel possessed.

[243] The refusal of Bouck J. to order further disclosure at Mr. Henry’s request was similarly informed by
Mr. Luchenko’s advice that Mr. Henry had “not requested anything further that has not been provided to him…”;
a position that, as I will discuss further, was manifestly incorrect. As such, I do not consider that Bouck. J.’s
refusal can be considered to be a judicial determination of the lawfulness of the Crown withholding information
from Mr. Henry.

[244] I find that Mr. Luchenko knew or ought to have known that the information he intentionally withheld
from Mr. Henry and his lawyers was information that was material to Mr. Henry’s defence and that his failure to
disclose it would likely impinge on Mr. Henry’s ability to make full answer and defence to the charges that he
was facing. I further find that Mr. Luchenko’s decisions to withhold that information was not validated by
judicial imprimatur.

G. Did the withholding of information violate Mr. Henry’s Charter rights?

[245] I have found that material information and evidence was intentionally withheld from Mr. Henry, and that
the withholding of that information jeopardized Mr. Henry’s ability to make full answer and defence to the
serious allegations against him. Crown Counsel’s actions in this regard infringed on Mr. Henry’s fair trial rights,
guaranteed by ss. 7 and 11(d) of the Charter.

[246] I therefore find that Mr. Henry’s allegations, described by both the majority and the minority in Henry
SCC as “serious instances of wrongful non-disclosure that demonstrate a shocking disregard for his Charter
rights”, have been made out as against the Province through Mr. Luchenko.

[247] Mr. Henry has also alleged that Crown Counsel breached his Charter rights by applying to dismiss his
conviction and sentence appeals for want of prosecution at an extraordinarily early stage, without bringing
certain matters to the attention of the Court of Appeal. As noted above, on January 17, 1984, Mr. Stewart filed
an application with the Court of Appeal to dismiss Mr. Henry's appeals for want of prosecution, as he had not
ordered or filed the transcripts and appeal books.

[248] Insofar as the claim arises from Mr. Stewart’s alleged failure to advise the Court of Appeal, I reject it. I
find that Mr. Stewart properly sought a remedy in the Court of Appeal as a result of Mr. Henry’s failure to order
appeal books, and that his conduct in so doing did not violate Mr. Henry’s Charter rights.

H. The Element of Harm

[249] The fourth element of proof identified by Moldaver J. in Henry SCC is the requirement that a claimant
seeking Charter damages must prove that as a result of wrongful non-disclosure, he or she suffered a legally
cognizable harm. At para. 96 he offered examples of how a legally cognizable harm could be shown:
… A historical wrongful conviction would certainly qualify. Charter damages would also be available
where the wrongful non-disclosure led to a conviction at trial that was later overturned on appeal, and
ultimately replaced by an acquittal -- either entered directly on appeal or following a new trial. Even if the
claimant was acquitted at trial, a Charter damages award would be available where it could be shown
that the charges would have been dismissed or withdrawn at an earlier stage of proceedings had proper
disclosure been made. In such a case, damages might serve to compensate for time wrongfully spent in
custody and any consequential harm suffered as a result of the criminal proceedings.
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[250] The harm alleged by Mr. Henry is self-evident: his wrongful conviction and lengthy incarceration.
Indeed, as referred to above, Moldaver J. described such a consequence, if attributable to wrongful conviction as
“an extraordinary human toll” and Chief Justice McLachlin and Madam Justice Karakatsanis considered the
facts alleged by Mr. Henry as “egregious”. To succeed in visiting the consequences of that harm on the Province,
Mr. Henry must prove on the balance of probabilities that he would not have been convicted and incarcerated,
but for the wrongful non-disclosure of information by Crown Counsel.

[251] I have already referred to para. 108 of the reasons for judgment of Low J.A. in Henry BCCA, where he
held that the evidence at trial on each count in the indictment was probably sufficient to put the appellant at risk
and for the case to go to the jury with careful and proper instruction. That finding was, however, without any
discussion of the evidence that had been withheld from Mr. Henry. It is thus necessary to consider the evidence
withheld from Mr. Henry to determine if the non-disclosure of that evidence in fact caused harm to Mr. Henry.

i. Causation

[252] At paras. 97 – 98 of Henry SCC, Moldaver J. set out the test for proof of causation in a case where
Charter damages are claimed:
[97] Regardless of the nature of the harm suffered, a claimant would have to prove, on a balance of
probabilities, that "but for" the wrongful non-disclosure he or she would not have suffered that harm. This
guarantees that liability is restricted to cases where the intentional failure to disclose was actually the
cause of the harm to the accused.
[98] The "but for" causation test may, however, be modified in situations involving multiple alleged
wrongdoers. For example, where the claimant alleges that a wrongful conviction was caused in part by the
failure of police to provide material information to prosecutors, and in part by the Crown's failure to
disclose, then a showing of "but for" causation will not be necessary. In this scenario, the causation
requirement will be satisfied if the claimant can prove that the prosecutorial misconduct materially
contributed to the harm suffered: Clements v. Clements, 2012 SCC 32 (CanLII), [2012] 2 S.C.R. 181.
[Emphasis added.]

[253] The Province contends that the negligence of the VPD in their investigation of the so-called rip-off rapist
and their treatment of Mr. Henry were causative factors in any harm that Mr. Henry suffered. I will address this
submission further when I deal with the Province’s submissions on contributory negligence, but even if the VPD
were negligent, that does not excuse the consequences of Crown Counsel’s non-disclosure on the “but for”
analysis as explained by Moldaver J. at para. 98 in Henry SCC, set out above.

[254] I find that Crown Counsel’s failure to disclose the information to which Mr. Henry was entitled negates
any shortcomings on the part of the VPD that might be attributed to them in their investigation of the so-called
rip-off rapist and in their treatment of Mr. Henry. Any failings in their investigation would have been known to
Crown Counsel, or could have been learned from inquiries of the VPD. But for the failure on the part of Crown
Counsel to make appropriate disclosure, the harm experienced by Mr. Henry would not have ensued.

[255] The Province raises the issue of causation, contending that the Court of Appeal made no finding that non-
disclosure led to Mr. Henry’s convictions, although an argument to that effect was raised in that Court. This
submission is unhelpful. The fact that the Court of Appeal chose not to address the argument is in no way
tantamount to a rejection of the argument.

[256] The Province also contends that Mr. Henry’s conviction was caused by a combination refusing the
assistance of publically funded counsel, misconducting himself in his self-representation at trial and judicial
error during the course of the trial.

[257] The Province also contends that if any documents or information can be shown to have been knowingly
withheld from Mr. Henry, it cannot be established that the disclosure of that information would have resulted in
the trial having a different outcome because Mr. Henry would not have benefitted from the disclosure that he did
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not receive, as he would have been unable to make effective use of it. The Province points to one example of
Mr. Henry’s misapprehension of the term “statement”, which he conceived of as sworn statements by the
complainants, as opposed to police reports of interviews with the complainants.

[258] Mr. Henry’s misapprehension of that term cannot assist the Province. I find that Mr. Luchenko did not
misapprehend what he had and should not have misapprehended what Mr. Henry ought to have received either
as a result of his unrepresented status, or due to the demands made by his various counsel when he was
represented.

[259] The Province also argues that because Mr. Henry failed to use the victim statements that he was given in
an effective way, and seek their admission into evidence, greater disclosure would have changed nothing.

[260] As I have already stated, Mr. Henry’s trial commenced on February 28, 1983. Only 35 days earlier, the
appointment of Richard Peck, Q.C. as Mr. Henry’s trial counsel was raised by Chief Justice McEachern.

[261] Although I acknowledge that Crown Counsel did not necessarily have a duty to provide disclosure to Mr.
Henry before the trial, had the Crown chosen to do so as late as 35 days before his trial began, Mr. Peck may
well have been able to assist Mr. Henry in appreciating the use to which that disclosure might have been put. Mr.
Peck would also likely have engaged in a dialogue with Mr. Luchenko to point out the frailties in the case
against Mr. Henry, in addition to those identified by the Court of Appeal in October 2010.

[262] If this disclosure had been made even earlier, it would likely also have assisted Mr. White in defending
Mr. Henry at the preliminary inquiry, and in providing advice to Mr. Henry.

[263] Mr. Henry may well have used the disclosure to which he was entitled at trial, as he used some of what he
did have to cross-examine complainants, or to lead evidence from police officers to support his submissions to
the jury that the forensic evidence should have raised a reasonable doubt as to his guilt.

[264] Mr. Luchenko did take some steps during the trial which were of assistance to Mr. Henry. He interjected
and proposed that the trial judge conduct a voir dire when Mr. Henry sought to call his parole officer. That
witness held the concern that Mr. Henry, if at large, would engage in further criminal acts. While such a view
was of questionable admissibility, if given, it would have been prejudicial to Mr. Henry.

[265] Similarly, when Mr. Henry sought to call other complainants whose complaints were not the subject of
the charges upon which he was being tried, Mr. Luchenko urged the trial judge to conduct a voir dire which
resulted in the avoidance of one of those witnesses identifying Mr. Henry as their assailant.

[266] While these interventions by Mr. Luchenko were of assistance to Mr. Henry, I find that Mr. Luchenko’s
failure to make appropriate disclosure was compounded by his conduct at trial in at least four respects.

[267] First, when Ms. Milliken sought to adduce the evidence of J.F. by the introduction of her evidence from
the preliminary hearing, the Court was not advised that only some of her statements had been provided to
Mr. Henry, and that Mr. Henry had not been advised that J.F. had been hypnotized before purporting to identify
him.

[268] In that Mr. Henry was self-represented at trial, Mr. Luchenko should have been scrupulous in advising the
trial judge of the entirety of J.F.’s evidence before asking for the admission of her evidence from the preliminary
hearing. Had he done so, the trial judge might well have refused to permit the use of her preliminary hearing
evidence, weakening the case against Mr. Henry considerably, as J.F. was considered by the police to be the only
witness who could identify Mr. Henry by his physical appearance.

[269] Secondly, the following exchange took place during the trial:
MR. LUCHENKO: Further to Mr.- Henry's request to the Crown this morning I can advise the Court I
have now given him copies of statements of these persons: [A. D., K. P., and V. N., also known as "C.", R.

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T., and P. R. G.] I do not have a written statement from [C. A.] as that woman is still in Ontario. I have
advised Mr. Henry of that situation.
In addition to what he requested of me I have provided him with two further statements and those are the
statements of[ K. M.], one of the counts in the original indictment, and [C. H.], who is one of his
subpoeaned witnesses.
THE COURT: All right.
MR. LUCHENKO: In addition, my lord, Mr. Henry has indicated to me he does not intend to call
evidence, The reason I am raising that at this time is, of course, the Crown had taken the position we
would produce a certain number of people he would wish to call. I do not intend to de-notify them at this
time but I did wish to advise the Court Mr. Henry has given that indication to me within the past five
minutes. Perhaps that could be confirmed by him on record.
THE COURT: Have you anything you would like to say about any of this?
THE ACCUSED: I really don't know what to say. I cannot defend myself properly the way I have been
given things, I don't think there is any point. If you boys want to put me in the joint, go ahead, enjoy it,
have a good time.
MR. LUCHENKO: I am concerned with that comment. Mr. Henry has not requested anything further that
has not been provided to him. If he wishes more I would ask him to say now so that the Crown can take
whatever steps he wants.
[Emphasis added.]
[Ex. 19, T. p. 284-285, ll. 39 – 29.]

[270] It is manifestly incorrect that Mr. Henry had “not requested anything further that has not been provided to
him…”. I find that had Mr. Luchenko correctly advised the trial judge of the extent of the unfulfilled requests for
disclosure by Mr. Henry and his lawyers, an order for the disclosure of the many of the various things Mr. Henry
and his lawyers had repeatedly asked for would likely have been made.

[271] Thirdly, in his opening address to the jury, Mr. Luchenko stated with respect to one count that “the police
on attending found no physical traces to identify the man”. Ms. Milliken conceded in her evidence that the
comment was inaccurate and unfortunate.

[272] Fourthly, Mr. Luchenko led the following evidence from Bruce Campbell, one of the investigating police
officers:
Q In your investigations of the matter before the Court you have testified that there were no
fingerprints that had ever been obtained, to your knowledge?
A To my knowledge there were none that were identified.
Q No identifiable tool marks, is that right, sir?
A Not to my knowledge.
Q And to be an identifiable tool mark you would have to have a tool against which to compare it, is
that correct?
A That is correct.
Q And you had no tool that could be identified with any of these particular incidents?
A No.
Q Were you working on this matter with any other police officer?
A With my partner, Detective Marilyn Sims.
Q Were you assigned solely to this case or did you have to deal with your usual bulk of cases as well
as this?

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A No. We had to deal with all the other cases as well.
Q Now, when you didn't have any forensic — is that the right term? — forensic evidence, that is
fingerprints, fibers, tool marks, you attempted to get a common denominator amongst these various
victims, is that correct?
A That is right.
[Ex. 19, T. p. 426, ll. 17-44]

[273] In my view this exchange was an unfair representation of the evidence of fingerprints and of the evidence
of tool marks which were compared with the tools seized from Mr. Henry were not a match.

[274] I find that if Crown Counsel had provided Mr. Henry with the documents in their control to which he was
entitled, and refrained from the four inappropriate acts discussed above, that on the balance of probabilities,
Mr. Henry would not have been convicted of the various counts of which he was convicted on March 15, 1983.

[275] I conclude that had Mr. Henry received the disclosure that I have found he was entitled to, and raised it
with the trial judge, as I find he would have done, the trial judge would likely not have permitted the transcript
of J.F.’s evidence from the preliminary hearing to have been read in at trial. Further, the trial judge would likely
have severed the various counts faced by Mr. Henry, and the likely result would have been his acquittal, and
certainly the avoidance of his sentencing as dangerous offender.

[276] The Province contends that it is not possible to find that the provision of the withheld evidence to
Mr. Henry, if used by him at trial, would have outweighed any adverse impression derived by the jury from the
evidence it in fact heard. I am unable to accept the Province’s submission that the inscrutable nature of the jury
verdict precludes such findings.

ii. Errors Attributed to the Trial Judge

[277] In its pleadings, the Province contends that errors by the trial judge in the course of the trial caused or
contributed to Mr. Henry’s conviction. The Province contends that even if the information that was withheld
from Mr. Henry had been provided to him, it would not have caused Mr. Justice Bouck to sever the various
counts faced by Mr. Henry, or to declare a mistrial or give different instructions to the jury than those he gave.

[278] The authorities that address appellate review of a jury verdict for reasonableness were summarized by
Mr. Justice Cromwell in R. v. W.H., 2013 SCC 22 (CanLII) at paras. 26 – 29:
[26] A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly
instructed jury acting judicially could not reasonably have rendered: R. v. Yebes, 1987 CanLII 17
(SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] 1 S.C.R. 381, at
para. 36. While the same test was traditionally applied to verdicts by both juries and trial judges, the more
recent jurisprudence from the Court has expanded somewhat the scope of review for unreasonableness in
the case of verdicts reached by trial judges: R. v. Beaudry, 2007 SCC 5 (CanLII), [2007] 1 S.C.R. 190;
R. v. Sinclair, 2011 SCC 40 (CanLII), [2011] 3 S.C.R. 3. This development recognizes a practical
distinction between reasonableness review of a trial judge's verdict and of a jury verdict: judges, unlike
juries, give reasons for their findings which the appellate court may review and consider as part of its
reasonableness analysis. However, this expanded reasonableness review of verdicts entered by trial judges
does not apply to reasonableness review of a jury verdict.
[27] Appellate review of a jury's verdict of guilt must be conducted within two well-established
boundaries. On one hand, the reviewing court must give due weight to the advantages of the jury as the
[page191] trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded.
The reviewing court must not act as a "13th juror" or simply give effect to vague unease or lurking doubt
based on its own review of the written record or find that a verdict is unreasonable simply because the
reviewing court has a reasonable doubt based on its review of the record.

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[28] On the other hand, however, the review cannot be limited to assessing the sufficiency of the
evidence. A positive answer to the question of whether there is some evidence which, if believed, supports
the conviction does not exhaust the role of the reviewing court. Rather, the court is required "to review,
analyse and, within the limits of appellate disadvantage, weigh the evidence" (Biniaris, at para. 36) and
consider through the lens of judicial experience, whether "judicial fact-finding precludes the conclusion
reached by the jury": para. 39 (emphasis added). Thus, in deciding whether the verdict is one which a
properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not
only whether there is evidence in the record to support the verdict, but also whether the jury's conclusion
conflicts with the bulk of judicial experience: Biniaris, at para. 40.
[29] While it is not possible to catalogue exhaustively the sorts of cases in which accumulated judicial
experience may suggest that a jury's verdict is unreasonable, a number of examples may be offered.
Circumstances in which a special caution to the jury is necessary about a certain witness or a certain type
of evidence are reflective of accumulated judicial experience and may well factor into an appellate court's
review for reasonableness. Some examples include the evidence of jailhouse informants and accomplices,
and eyewitness identification evidence. Other circumstances that generally do not require, as a matter of
law, any particular warning to the jury may nonetheless, in light of accumulated judicial experience,
contribute to a conclusion of an unreasonable verdict, for example the risks of accepting bizarre
allegations of a sexual nature and the [page192] risk of prejudice in relation to psychiatric defences:
Biniaris, at para. 41. What all of these examples have in common is that accumulated judicial experience
has demonstrated that they constitute an explicit and precise circumstance that creates a risk of an unjust
conviction.

[279] The errors attributed to the trial judge, as identified by the Court of Appeal in Mr. Henry's criminal
appeal, were not tortious. Judicial immunity precludes any finding of liability on the part of Mr. Justice Bouck
for errors made in the course of the Henry trial. His rulings cannot be considered '‘negligence” or wrongful in
the tort analysis sense: Morier and Boily v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716.

[280] The Province cannot avoid liability in whole or in part because of factual circumstances in the
background of causation where those circumstances are of a non-tortious nature, such as the trial rulings of
Mr. Justice Bouck: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 22.

[281] To the extent that the trial judge was found to have fallen into error by the Court of Appeal, his errors
were arguably errors that Crown Counsel caused or contributed to by not seeking severance of the various
counts alleged after abandoning their similar fact application, and arguing that the evidence met the standard for
conviction. Mr. Henry quite properly concedes that Crown Counsel cannot be held liable for those alleged errors
or omissions due to its immunity from claims of that nature.

[282] The Province asserts that Mr. Henry’s incarceration after February 1984 was caused by his decision not to
file the necessary materials to pursue his appeal from conviction. The Province submits that but for the conduct
of Mr. Henry in refusing to file the materials necessary to pursue his appeal, the Court of Appeal would have
reviewed his conviction on the merits in 1984 instead of 2010 and would have set aside the conviction on the
grounds on which the conviction was set aside in 2010.

[283] As I understand the argument, the Province contends that any chain of causation stemming from the non-
disclosure by Crown Counsel was broken by Mr. Henry’s failure to follow through with the appeal that was
available to him. The Province asserts that had Mr. Henry followed through with his appeal in 1984, it is likely
that the result would have been the same or similar to the result on October 27, 2010. I am unable to accept this
argument for three reasons.

[284] First, as I have indicated above, the argument ignores Mr. Henry’s compromised thinking and ability to
organize his thoughts stemming from his arrest and the charges that led to that arrest. This prevented Mr. Henry
from properly advancing his appeal, and cannot break the chain of causation stemming from the non-disclosure
by Crown Counsel.

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[285] Second, the evidence with respect to the small man investigation would not have been available by 1984.
This evidence and Mr. McRae’s convictions were a powerful basis for Mr. Henry’s acquittal in 2010.

[286] Third, even after Mr. Henry’s conviction, the Province had an ongoing obligation to disclose to
Mr. Henry the relevant information that it had in its possession, which it failed to disclose to Mr. Henry prior to
the trial. The Province’s failure to disclose that information to Mr. Henry significantly reduced his likelihood of
success on his 1984 appeal.

[287] I find that, but for the Charter breaches committed by the Province, it is likely that Mr. Henry would
have been acquitted at trial, and he thus would have avoided his wrongful conviction and subsequent designation
as a dangerous offender and lengthy incarceration.

iii. Contributory Negligence

[288] In Cempel v. Harrison Hotsprings Hotel Ltd., 1997 CanLII 2374 (BC CA), 1997 CanLII 2374
(B.C.C.A.) Mr. Justice Lambert held at para. 24:
In the apportionment of fault there must be an assessment of the degree of the risk created by each of the
parties, including a consideration of the effect and potential effect of occurrences within the risk, and
including any increment in the risk brought about by their conduct after the initial risk was created. The
fault should then be apportioned on the basis of the nature and extent of the departure from the respective
standards of care of each of the parties.

a. Mr. Henry

[289] The Province took the position that if any of its employees committed any of the acts or omissions in the
notice of civil claim, any harm resulting to Mr. Henry was also caused or contributed to by his own negligence.
The Province pleaded the provisions of the Negligence Act, R.S.B.C. 1996, c. 333. The particulars of
the plaintiff’s alleged negligence include dismissing his legal counsel, the conduct of his criminal trial and post-
conviction proceedings, his failure to present a competent defence, and his failure to pursue a timely appeal on
the merits in accordance with the law.

[290] The Province contends that Mr. Henry’s conduct at trial and in the Court of Appeal in 1984 amounts to
either contributory negligence, failure to mitigate, or both. The Province relies upon the decision of the Court of
Appeal in R. v. Crichton, 2015 BCCA 138 (CanLII) at para. 26, where Madam Justice Bennett, writing for
the Court, commented:
There are then, in some sense, competing rights? The right to counsel in contrast with the right to represent
oneself and not have counsel forced upon one. It cannot be, then, that an accused is deprived of the right to
a fair trial solely because he or she is unrepresented, regardless of the complexity or seriousness of the
case, if he or she chooses to be self-represented. Thus, if a person does not receive a fair trial because he or
she chose to represent him or herself, even when counsel was available, then the fault lies with the accused
and no remedy is available.
[Emphasis added.]

[291] However, in that case, Bennett J.A. was not addressing a claim for Charter damages. Her comments
pertain to an application for state-funded counsel and a stay of proceedings pending government funding of
counsel, and the consequences for an accused who represents him or herself at trial, and then seeks to appeal a
conviction based upon that self-representation.

[292] As I have already found, Mr. Henry’s thinking and ability to organize his thoughts was much
compromised at the time of his trial, and his delusional disorder persisted over the years during his pursuit of his
appeals. Following the direction in Janiak referred to above, he should be treated as falling within the thin skull

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category and should not be made to bear the consequences of his conduct once it is established that he was
wrongfully injured.

[293] One of Mr. Henry's defences at trial was identity. His ability to pursue this defence was compromised by
the lack of disclosure of a number of the complainants' statements and those he did have post-dated, in some
cases by years, their assaults.

[294] Another of Mr. Henry’s defences at trial was an alleged alibi for some of the nights that the sexual
assaults occurred. Mr. Henry’s failure to establish this defence to some of the charges does not diminish the
liability of Crown Counsel in failing to disclose material information to him.

[295] Amongst the materials that were not disclosed to Mr. Henry were documents that showed he was under
police surveillance for a number of weeks, over a period of time when at least one sexual assault occurred. The
non-disclosure of the results of the surveillance can thus reasonably be said to have impeded Mr. Henry’s ability
to establish an alibi.

[296] Crown Counsel apparently disregarded the details of the alibis that Mr. Henry provided pre-trial and did
not ask Det. Harkema to investigate them. Officer Barnard testified that investigating suspects' alibis and
eliminating them on the basis of alibis was part of what he did as an investigator of sexual assaults in the
neighborhood where several of the assaults for which Mr. Henry was convicted had occurred, and the police
reports filed as exhibits corroborate his testimony in that regard.

[297] I am unable to accept that an unrepresented accused who is not provided with appropriate disclosure can
then be faulted for not advancing the arguments that would be open to him or her, or enhanced if appropriate
disclosure had been provided, or for advancing defences that might not have been advanced if appropriate
disclosure had been provided.

[298] In my view, in a case in which there has not been appropriate disclosure and a conviction results, the
Crown should not be able to avoid liability by disparaging the defences that were advanced.

[299] The Province’s claims that Mr. Henry was contributorily negligent would require a finding by this Court
that contributory negligence principles apply to claims for Charter breaches. While causation principles are to
be applied to a claim for damages stemming from a breach of Charter rights, there is no authority for the
proposition that contributory negligence should apply to such a claim. The application of contributory
negligence principles do not fit with Charter considerations generally, or the framework of constitutional tort
analysis established by the Court in Ward. The focus in judicial examinations of Charter breaches generally,
and in the test set out in Ward, is on the actions of the state that may impede on rights, and on public policy
considerations.

[300] It also cannot be logically said that Mr. Henry’s decisions contributed to the Charter breach itself.

[301] Mr. Henry’s choice to represent himself at trial cannot be considered a legally relevant (tortious) aspect of
causation that somehow negates the causative role of the Crown's non-disclosure. It also cannot be considered
contributory negligence: were it otherwise, then in every case where the Crown breached a disclosure duty to a
self-represented accused and a wrongful conviction resulted, the Crown could avoid or diminish its own
responsibility for its breach of the accused's Charter rights.

[302] The fact that Mr. Henry was self-represented at trial heightened rather than diminished the responsibility
of the Crown to provide him with the disclosure he had a right to receive in order to make full answer and
defence. Mr. Henry cannot be held, through his no doubt unwise decision to represent himself, to have negated
or diminished the liability of the Crown for the breach of its duty to disclose. The result would be a license to
breach disclosure duties to accused persons who are unrepresented, vulnerable, or who have poor ability to make
effective decisions on their own behalf. This would be contrary to basic constitutional principles.

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[303] As an unrepresented person charged with very serious offences, Mr. Henry was entitled to represent
himself and to expect that his Charter rights would be respected. At his trial, he used what statements that he
had been given from P.B., H.M., D.I., P.G., B.Q., and J.F. in his attempts to cross-examine those complainants.

[304] In my opinion, the contention that Mr. Henry could be found to have contributed to the breach of his
Charter rights is untenable. He, like every other accused person in Canada, was entitled to the presumption of
innocence. He had no obligation to prove that he was not guilty of the charges for which he was ultimately
acquitted by the Court of Appeal. He was entitled to his liberty unless deprived thereof in accordance with the
principles of fundamental justice. The submission that he is to share in the liability for the breach of that right
encourages the impoverishment of the values enshrined in the Charter and cannot be supported.

[305] The doctrine of mitigation prevents a plaintiff from recovering for losses that could have been reasonably
avoided. As the party claiming a failure to mitigate, the Province bears the burden of proving Mr. Henry’s failure
to mitigate on a balance of probabilities: Southcott Estates Inc. v. Toronto Catholic District School Board, 2012
SCC 51 (CanLII).

[306] Even if this concept, which arises from the private law of tort and contract, can be applied to a claim for
Charter damages, I am not satisfied that this onus has been met by the Province. As I have found above, Mr.
Henry’s mental state at the time of his conviction and early appeals was much compromised. His decision-
making abilities were accordingly limited, and his actions cannot be said to be unreasonable in this context.

b. Settling Parties to the Action

[307] The next aspect of the Province’s argument on the issue of contributory negligence is with respect to the
settling parties to this action. The plaintiff initially claimed damages against three parties, settled with two, and
then waived any claims against the Province for “any portion of his damages or costs which may be attributable
to any fault” of the VPD or the Federal Minister.

[308] The Province contends that the damages claim brought against the three parties was “indivisible” in the
sense that the same damages relating to his conviction and incarceration were claimed against each of the
parties. The “B.C. Ferries” settlement the plaintiff made required waivers so that the settling parties could be
clear of any possible claims over.

[309] In B.C. Ferries, the plaintiffs entered into agreements with several third parties, in which the plaintiffs
agreed that they would not seek to recover from the defendants any portion of the losses they claimed in the
action, for which a court or any other tribunal might attribute to the fault of the third parties. Counsel advised the
trial court that the plaintiffs expressly waived any right to recover from the defendants any portion of the loss
which they claim and which the court may attribute to the fault of any respondent third party with whom such an
agreement has been struck. The third parties then moved, pursuant to Rule 18A, for summary judgment
dismissing the defendants' claims both for contribution or indemnity and for damages equal to an amount
required to indemnify them for their out of pocket costs of defending the plaintiff's claim. The judge in this
Court dismissed the defendants' claim for declaratory relief against the third parties.

[310] The reasons on the B.C. Ferries appeal are indexed at British Columbia Ferry Corp. v. T&N plc, 1995
CanLII 1810 (BC CA), [1995] B.C.J. No. 2116. At para. 15 of those reasons, Mr. Justice Wood expressed
the principle in this way:
In order to avoid any uncertainty that may arise with respect to the need for a determination at trial of the
degree of fault, if any, attributable to non-defendants, I am of the view that the express waiver should
properly form part of the pleadings in this action, and that a further amendment should be made to the
Statement of Claim, wherein the substance of that waiver is clearly set out. When that is done, there will
be no doubt as to the limits of the plaintiffs' claim for damages, nor will there be any uncertainty as to the
obligation of the trial judge to determine what fault, if any, for the plaintiffs' loss is attributable to others
than the defendants.

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[311] At para. 30, Wood J.A. explained:
... While it is true to say, as did the judge below, that the suit between the plaintiffs and the defendants will
require a determination of the fault of the defendants limited as it may be by the fault, if any, of other
persons or companies, the fact is that unless those others are joined as parties the ability of the defendants
to demonstrate such fault on their part will be adversely affected - perhaps severely so - by the defendants'
inability to invoke those procedures under the Rules designed to enhance the ability of one party to an
action to prove its case against another. One has only to consider the importance to the process of proof of
such procedures as the right of discovery, the notice to admit and the ability to call parties as adverse
witnesses, to realize that there will be circumstances in which the need to resort to such procedures will
meet the expanded definition given to the term "relief" by Lord Justice Bankes in the Guaranty Trust
Company of New York case.
[Emphasis added.]

[312] In Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 (CanLII), the Supreme
Court of Canada described the essence of a comparable agreement, described as a Pierringer Agreement, in this
way:
Named for the 1963 Wisconsin case of Pierringer v. Hoger, 124 N.W.2d 106 (Wis. 1963), a Pierringer
Agreement allows one or more defendants in a multi-party proceeding to settle with the plaintiff and
withdraw from the litigation, leaving the remaining defendants responsible only for the loss they actually
caused. There is no joint liability with the settling defendants, but non-settling defendants may be jointly
liable with each other.

[313] The concept of determining proportionate fault against a settling defendant does not require third party
proceedings. This point was made by the Court of Appeal in Canada Post Corp. v. Wiebe, 2006 BCCA 372
(CanLII), at para. 52:
There is no dispute that under the Act, no recovery for damages could be made against the appellant and,
as a result, he could not properly be joined as a defendant in the action. However, it was unnecessary to
join the appellant as a third party in order to make a finding about the degree of the appellant’s fault. ...
there is no doubt that a trial judge may make an assessment of fault against a non-party, a point referred to
by Wood J.A. in British Columbia Ferry Corp. v. T & N pic, supra, at paragraph 15 of his reasons.

[314] In Drucker, Inc. v. Gui, 2009 BCSC 542 (CanLII), Mr. Justice Meyers commented at paras. 96 – 98:
[96] The "B.C. Ferries" form of settlement is meant to accomplish two main goals. The first is to allow
a plaintiff to settle with one joint tortfeasor without releasing the remaining joint tortfeasors. The second
object is to prevent the non-settling tortfeasors from bringing the settling tortfeasors back into the action
through a third party claim for contribution and indemnity.
[97] In order to avoid releasing the non-settling joint tortfeasors, no release is given. Rather, the
plaintiff covenants not to sue the settling defendant. Further, no consent dismissal order is made. Instead,
the plaintiff discontinues its action against the settling defendant.
[98] In order to prevent the non-settling tortfeasors from being able to claim contribution and indemnity
from the settling tortfeasors, the plaintiff covenants to only claim against the non-settling tortfeasors for
their share of fault pursuant to s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333. That being the
case, there is nothing for the non-settling tortfeasors to claim contribution or indemnity for.

[315] In the event that the Province had no liability, it would be unnecessary to consider the fault of the other
defendants, but as I have found that the Province is liable to Mr. Henry, the Province correctly submits in the
alternative that any portion of his damages which may be attributable to any fault of past or present members of
the City defendants and the Federal Crown cannot be recovered against the Province.

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[316] The consequence of a B.C. Ferries agreement makes it necessary to determine whether any of the
damages claimed against the non-settling defendant are attributable to the settling defendants.

[317] The plaintiff had asserted that the City defendants and the Federal Crown were at fault, but his assertions
are not enough to establish liability against these former Defendants. It was for Mr. Henry to establish the
liability of the City defendants and the Federal Crown, and as a result of the settlement between these parties, for
the Province to do so before any apportionment of fault and consequent liability must be undertaken by this
Court.

c. The Province’s Position on the Liability of the City Defendants

[318] The Province amended its pleadings to claim that the plaintiff’s convictions were "caused or contributed
to" by the former City defendants, but chose not to call any witnesses to the issue of potential City liability. The
Province asserts that if it bears any liability to Mr. Henry, the City defendants are at least equally liable for the
plaintiff’s damages. The Province contends that the City defendants are mainly liable to the plaintiff for their
loss of evidence, the live line-up and their failure to disclose the similar sexual assaults that continued to occur
after Mr. Henry was arrested.

[319] Mr. Henry concedes that there is an evidentiary basis on which findings of some fault on the part of the
City defendants could be made for negligent investigation related to the May 12 line-up, the J.F. photo line-up,
Det. Harkema’s re-interviews of the complainants, and failing to investigate the similarities between the small
man offences and the offences of which Mr. Henry was convicted.

[320] The test for liability of police officers was discussed in the decision of the Supreme Court of Canada in
Hill. Hill establishes that police owe a duty of care to suspects whom they are investigating, and that the
standard of care is that of a reasonable police officer in similar circumstances. At para. 73 of her reasons, for the
majority, Chief Justice McLachlin held:
This standard should be applied in a manner that gives due recognition to the discretion inherent in
police investigation. Like other professionals, police officers are entitled to exercise their
discretion as they see fit, provided that they stay within the bounds of reasonableness. The
standard of care is not breached because a police officer exercises his or her discretion in a manner
other than that deemed optimal by the reviewing court. A number of choices may be open to a
police officer investigating a crime, all of which may fall within the range of reasonableness. So
long as discretion is exercised within this range, the standard of care is not breached. The standard
is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a
reasonable officer, judged in the circumstances prevailing at the time the decision was made -
circumstances that may include urgency and deficiencies of information. The law of negligence
does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359).
Rather, it accepts that police officers, like other professionals, may make minor errors or errors in
judgment which cause unfortunate results, without breaching the standard of care. The law
distinguishes between unreasonable mistakes breaching the standard of care and mere "errors in
judgment" which any reasonable professional might have made and therefore, which do not breach
the standard of care (Lapointe v. Hopital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1
S.C.R. 351; Follandv. Reardon (2005), 2005 CanLII 1403 (ON CA), 74 O.R. (3d) 688
(C.A.); Klar, at p. 359.)

[321] The Province relies on the written opinion of Mr. Davis, a retired Toronto police officer, with respect to
the issues relating to the liability of the City defendants. Although the City defendants took issue with
Mr. Davis’ reasoning for a number of reasons, his evidence was admitted.

[322] After Mr. Henry was arrested, there were a series of rapes that continued to occur in the same geographic
area, with a modus operandi similar to that alleged to have been employed by the perpetrator of the offences for
which Mr. Henry was convicted and for which similar suspect descriptions were given. Those offences were
investigated by the VPD, including by members of the Sexual Offence Squad. Details of these offences were put
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to Det. Harkema in cross-examination, which he agreed had some similarities to the offences for which
Mr. Henry was convicted.

[323] The Province asserts that these later offences had such similarities to the offences for which Mr. Henry
was convicted, that the VPD should have viewed them as related offences. Mr. Davis concluded in his report that
the VPD did not exercise reasonable care, skill and professional judgment in investigating the November 1982
to1983 sexual assaults or the 1984 to 1988 offences, and considering the possibility that these offences had been
committed by the same perpetrator as the sexual assaults with which Mr. Henry was convicted. Further, he
concluded that the “VPD did not exercise reasonable care, skill and judgment in failing to disclose the
circumstances of the 1984 – 1988 sexual assaults to Crown Counsel”.

[324] Det. Barnard was one of the lead investigators into the small man assaults. He claimed to have no
knowledge of the offences for which Mr. Henry was convicted and said that he believed it was the responsibility
of the supervisor to make connections between investigations. He gave evidence that Sergeant Howland would
read incoming files and distribute them.

[325] Det. Harkema testified that he is now aware of the small man assaults, which bear similarities to the
offences for which Mr. Henry was convicted. One of the similarities included that a later offence occurred at the
same address as one of the offences for which Mr. Henry was convicted. Det. Harkema could not recall anyone
bringing the similarities in offences to his attention.

[326] Det. Harkema gave evidence that he spoke to Det. Barnard about the modus operandi of the rip-off rapist
because of Det. Barnard’s involvement with the investigation, but did not recall any further conversations about
it. He attributes the lack of communication to a manpower shortage and states that it was “a crazy time”. This
seems unlikely given the media attention.

[327] Gordon Elias, a former VPD member who was involved in the small man investigation, testified that he
would not have thought the offences for which Mr. Henry was convicted were committed by the same person as
the offences which he investigated. He gave evidence about the investigation into the small man assaults, and
specifically about investigating Donald McRae and 14 sexual assault reports. He developed a matrix which
“drew a very clear picture that these 14 were all related”. The commonalities included geographic location,
modus operandi and similarities in the description of the perpetrator.

[328] The Province argues that the small size of the Sexual Offence Squad and the fact that Sergeant Howland
and Det. Barnard had both worked on the investigation of the assaults for which Mr. Henry was convicted
indicate that they knew of the similarities in the offences, and should have realized that the offences may have
been related. These were very high profile offences and there was a group of four detectives and a sergeant
responsible for investigating these types of crimes. The Province contends that is not reasonable or credible that
they would not all be aware of the general information about the sexual offences for which Mr. Henry was
convicted and the small man assaults. If they were not aware, they were negligent in their lack of awareness or
were willfully blind. If they were aware, they were negligent in their failure to disclose those facts to Crown
Counsel.

[329] The difficulty with this submission is that if it is correct, it must apply equally to the Province and its
Crown Counsel who were involved in Mr. Henry’s prosecution and that of Mr. McRae. In my view, the
application of the standard of care discussed by Chief Justice McLachlin in Hill does not raise the failure of the
members of the VPD nor the Provincial Crown to the level of error necessary to support an allegation of liability
for the failure to connect the offences for which Mr. Henry was convicted with the offences that were attributed
to Mr. McRae. The investigation of the small man offences, in my view, fell within the range of reasonableness
and should not be judged from the vantage of hindsight.

[330] Ms. Cunningham and Ms. Milliken testified that they believed that the police were responsible for charge
approval in 1982, although, Ms. Cunningham qualified her evidence by preceding it with the observation that
this was “to the best of [her] recollection”. Det. Harkema testified that Mr. Luchenko was responsible for charge
approval in Mr. Henry’s case. I prefer the evidence of Det. Harkema on this point, as neither Ms. Cunningham
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nor Ms. Milliken were involved with the charge approval process in Mr. Henry’s specific case, whereas Det.
Harkema was.

[331] Crown Counsel had the benefit of being able to review the evidence relating to the investigation that had
been conducted by the VPD, and knew or ought to have known that the investigation had serious flaws and
deficiencies. Crown Counsel was therefore in a position to refuse to proceed with the charges against Mr. Henry.

[332] The fact that when Crown Counsel became aware of the later assaults in 2005, they asked the VPD to
review the evidence of the offences for which Mr. Henry was convicted, does not persuade me that such
conclusions should have been reached by either the VPD or Provincial Crown Counsel when the investigations
were ongoing, including the investigation of small man assaults at earlier dates.

[333] The Province alleges that the City defendants failed to properly handle the exhibits collected during the
course of their investigation and trial of Mr. Henry.

[334] Between 1980 and 1982 the VPD identification squad attended crime scenes to look for and preserve
fingerprints, tool marks, and biological matter. The constables and follow-up investigators took this evidence,
depending on the time of day, either directly to Lab or to the science locker at the police station for later pick up
by the Lab’s technicians. Any bodily fluid deposited at the scene of a sexual assault by a perpetrator would have
been processed by the Lab.

[335] Shortly after the Lab was shut down in 1995, three of its freezers and a refrigerator were moved into a
secure room at the police station located at 312 Main Street. The evidence contained in those appliances stayed
there, except as items were removed from time to time for trial. The freezers and the refrigerator eventually
broke down and had to be thrown out. At some point, Mr. Modie, one of the Lab workers, took it upon himself
to clean out the freezers and refrigerator and to reorganize its contents. He logged the exhibits, one at a time,
based on the information on the tags, where sufficient information existed.

[336] Det. Harkema looked for exhibits related to the Henry investigation in 2001. He stated that if he could
find just one of the semen samples obtained from the 17 complainants and could test it for DNA, he could get a
definitive result as to Mr. Henry’s guilt or innocence.

[337] Mr. Modie was also asked to assist with searches for exhibits related to the Henry investigation starting
from 2006 onward. However, the freezers were frozen solid and the exhibits encased with frost. The Lab’s
records were never forwarded to the VPD and therefore the exhibits were not properly inventoried. Mr. Modie
cleaned out the freezers and refrigerators in 2006 or 2007 and tried to take inventory of what was inside, roughly
3000 exhibits, however, 10-20 percent were destroyed or had no information. There was no paperwork for any
of the exhibits.

[338] The Province alleges that the City is exclusively responsible for its failure to properly handle the
evidence and for the loss of evidence that could have significantly contributed to the harm suffered by
Mr. Henry. Assuming that this evidence could have proven Mr. Henry’s innocence and exonerated him as early
as 1984, had it been preserved and tested in conjunction with the small man investigation, the fact remains that I
have found that it was or should have been known to and available to the Provincial Crown Counsel before and
during Mr. Henry’s trial. In a perfect world, it might have been kept forever, but I see no particular reason why,
in 1983, following the expiry of Mr. Henry’s appeal period, its destruction does not fall within the range of
reasonableness for police practice.

[339] The Province alleged, in the further alternative, that the Court should allocate fault to the City defendants
due to their negligent investigation, including the May 12 line-up, the photo line-up and the re-interview of
complainants after the May 12 line-up.

[340] Mr. Davis expressed his opinion that the City defendants were negligent throughout their investigation of
the offences for which Mr. Henry was convicted on the basis that, early on, they conducted a brainstorming

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session that compromised or tainted the witnesses’ evidence, and that the VPD officers, including Detectives
Sims and Campbell, negligently failed to collaborate when they handed the investigation over to Det. Harkema.

[341] Detectives Sims and Campbell decided to hold brainstorming sessions with the investigating officers and
multiple complainants at the same time. This they should not have done.

d. Conclusion on the Liability of the City Defendants

[342] The checks and balances of the charge approval system should have dissuaded the Province from
proceeding in the charges against Mr. Henry where the evidence was inadequate or deficient. I find that Crown
Counsel’s failure to disclose the information, to which Mr. Henry was entitled, broke the chain of causation and
negates any finding of contributory negligence on the part of the VPD for any failings that might be attributed to
them in their investigation of the so-called rip-off rapist and in their treatment of Mr. Henry.

e. The Province’s Position on the Liability of the Federal Crown

[343] The Province contends that although the Federal Crown bears less liability than the City defendants and
the Province, it is liable for its failure to meaningfully review Mr. Henry’s appeals and applications for mercy
under what was then s. 690 and is now s. 696.1 of the Criminal Code.

[344] Mr. Henry contends that there is no evidentiary basis for any finding of negligence on the part of the
Attorney General for Canada, relying on Wells v. McBrine, [1988] B.C.J. No. 2366 (C.A.).

[345] In order to succeed in establishing fault on the part of the Federal Crown, the Province, as the party
claiming against the Federal Crown, must establish that the Federal Crown did not perform a “meaningful
review” of Mr. Henry’s applications. The legal test for liability against the Federal Crown is a very high one.
Causation must also be proven in order to establish liability: Hinse v. Canada (Attorney General), 2015 SCC
35 (CanLII) [Hinse].

[346] In Hinse, the Supreme Court of Canada considered the standard of care required for consideration of an
application for mercy. The Court determined that the Minister had a duty to conduct a meaningful review of the
application. In order to lose his or her qualified immunity, a Minister’s decision must demonstrate bad faith,
including serious recklessness “that reveals a breakdown of the orderly exercise of authority so fundamental that
absence of good faith can be deduced and bad faith presumed”.

[347] The Province asserts that in this case, the Minister’s repeated lack of meaningful review and
consideration of Mr. Henry’s applications for mercy amounts to serious recklessness, and leads to an inference
of an absence of good faith. While it is clear that Mr. Henry brought a number of applications over the years,
commencing as early as 1984, to various Ministers of Justice in an effort to have his wrongful conviction
reviewed pursuant to the Criminal Code, there is no evidence of bad faith or recklessness on the part of any
Minister or Minister’s delegate. I am invited by the Province to infer bad faith or recklessness from the written
material filed in the evidence before me.

[348] Mr. Henry’s first application was made on February 27, 1984; three days after the Court of Appeal
dismissed his appeal and dealt for the most part with his complaints regarding the trial, including fraud and
perjury, problems with the appeal and lack of evidence. The response from a special assistant to the Minister of
Justice indicated that his claims were not substantiated and that Mr. Henry should provide the transcript of the
trial. I am not prepared to infer bad faith or recklessness or lack of a meaningful review on the part of the
Federal Crown from this response.

[349] Mr. Henry’s second application was made on September 27, 1985, and was in large measure a repetition
of the concerns from his previous letter, with a particular focus on the line-up photo and fabricated evidence.
The Minister responded and again denied Mr. Henry’s application. Mr. Henry indicated that he believed the
Minister had cut and pasted his response from the earlier letter. I am not prepared to infer bad faith or
recklessness or lack of a meaningful review on the part of the Federal Crown from this response.
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[350] From December 10, 1998, and thereafter, Mr. Henry’s daughter, Kari Rietze, was in contact with the
federal Department of Justice, asking, among other requests, to re-open Mr. Henry’s appeal, referencing new
information, including that the VPD Sexual Offence Squad continued to treat complainant C.A.’s case as an
open file.

[351] Mr. Henry was repeatedly advised by federal Department of Justice officials that he must provide “new
information” in order to justify consideration and review. The December 10, 1998 letter was the first time the
federal Department of Justice was arguably put on notice that Mr. Henry had new information.

[352] On June 13, 2001, Mr. Henry submitted a largely repetitive 44-page application under section 690 for
review of his convictions. This application arguably contained new information and material related to the claim
that the sexual assaults continued after Mr. Henry’s arrest and conviction.

[353] Ms. McFadyen, senior counsel with the Department of Justice Criminal Conviction Review Group, sent
Mr. Henry a letter acknowledging receipt of the application and new information and acknowledging the need to
review it.

[354] On April 19, 2002, Ms. McFadyen wrote a memo to Mr. Henry’s file indicating that “[Mr. Henry] has
now provided new assertions. A preliminary assessment has to be completed on this file.” The onus is on the
Province to establish bad faith or recklessness or lack of a meaningful review. The evidence before me does not
show whether Ms. McFadyen or her successors conducted any review of this new material, but as the claim
against the Federal Crown was settled before it had any opportunity to call evidence with respect to the review,
if any, that it conducted, it would be sheer speculation for me to find that no such review occurred. Such
speculation cannot, in my view, form a foundation for a finding of bad faith or recklessness or lack of a
meaningful review.

[355] After this exchange, there was a further series of similar responses to Mr. Henry until April 4, 2003,
when acting senior counsel, Kerry Scullion, denied his application. I am not prepared to infer bad faith or
recklessness or lack of a meaningful review on the part of the Federal Crown from this response.

f. Conclusion on the Liability of the Federal Crown

[356] The Province bears the burden of establishing liability on the part of the Federal Crown. I find that the
Province has not discharged this burden. I am not prepared to infer from the evidence before me that the Federal
Crown failed to conduct a meaningful review of Mr. Henry’s applications for mercy or that the Federal Crown
behaved recklessly or in bad faith.

iii. Joint and Several Liability

[357] The liability of multiple tortfeasors is joint and several if a plaintiff is not contributorily negligent, and
several if a plaintiff is contributorily negligent: ss. 1 and 4 of the Negligence Act, R.S.B.C. 1996,
c. 333. Mr. Henry contends that the amendments made to his notice of civil claim as a consequence of the
settlements with the City of Vancouver and the Attorney General of Canada (“the Attorney”) sever any joint and
several liability that may otherwise have existed among the former defendants and the Province.

[358] In Leischner v. West Kootenay Power & Light Co., 1986 CanLII 889 (BC CA), 1986 CanLII 889
(B.C.C.A.), the trial judge had found the plaintiff 10 percent at fault and the defendant city of Kelowna 45
percent at fault. He found no fault on the part of the defendant West Kootenay Power, but attributed the
remaining 45 percent of fault to an individual who was not a defendant, but rather a third party. The Court of
Appeal upheld the finding of fault against the third party in a situation where the plaintiff was contributorily
negligent. The Court held at p. 174 that "where the fault of the plaintiff and of two or more tortfeasors
contributed to the plaintiff’s loss, the tortfeasors are liable only severally, not jointly. This is so whether all
tortfeasors are sued as defendants or not.”

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[359] Mr. Henry agrees that the effect of the settlements and resulting amendments to the notice of civil claim
is to render the Province severally liable to the plaintiff should damages be apportioned. Mr. Henry also agrees
that the liability of the non-parties has been raised in the Province’s pleadings through its recent amendments.
Mr. Henry agrees that there may be some evidentiary basis for assessment of wrongdoing on the part of the
VPD, but contends that because the claims are not all in negligence, the apportionment provisions of the
Negligence Act may not apply.

[360] In his text, Constitutional Damages Worldwide, at pp. 221 – 222, Professor Cooper-Stephenson notes that
in the international context it appears to be an open question as to whether legislation that apportions liability in
tort is applicable to constitutional damage claims.

[361] At the time of enactment of the Negligence Act in 1925, the Charter had not come into existence and
constitutional torts were unknown. The legislators cannot have intended that the apportionment provisions of the
Negligence Act would apply to unforeseen constitutional torts.

[362] As I have found that Mr. Henry was not to blame for the breach of his Charter rights, even if
contributory negligence principles could be applied, there is no basis for a finding of several liability amongst
the original defendants in this action.

[363] As I have found that the chain of causation stemming from any shortcomings on the part of the City was
broken by the conduct of the Provincial actors, and found that the Province has not discharged its burden of
establishing liability on the part of the Federal Crown for the consequences of its own breach of Mr. Henry’s
Charter rights, there is no basis upon which to attribute liability between the Province and the other original
defendants, and I decline to do so.

2. Are Damages a Just and Appropriate Remedy for Mr. Henry?

[364] I turn again to the observations of the Honourable Peter Cory in his report on the Inquiry Regarding
Thomas Sophonow, with which I agree, and which I adopt, that:
Imprisonment, when it is wrongful constitutes a very serious, injurious act that should not be lightly
regarded. Certainly capricious imprisonment at the whim of the State has not been tolerated for centuries.
The great Writ of Habeas Corpus was used to combat just such imprisonment. It is truly the writ of
freedom and the writ of the people. Wrongful conviction may not be as grave as capricious imprisonment
but its consequences for the prisoner are equally destructive.
As well, society needs protection from both the deliberate and the careless acts of omission and
commission which lead to wrongful conviction and prison. These acts could all too easily lead to the abuse
of individuals and groups deemed to be troublesome to the government of the day. One of the best
methods of controlling that abuse is by ensuring that there is no cap imposed on the damages flowing from
a wrongful conviction. A cap could all too easily become the license fee payable for wrongful convictions.
It cannot be forgotten that a wrongful conviction is as much a wrong to the administration of justice and to
our society as it is to the individual prisoner. Wrongful imprisonment is the nightmare of all free people. It
cannot be accepted or tolerated.
In those exceptional cases, where wrongful conviction is established, the damages flowing from it must be
significant not only to provide compensation for the individual wronged but also for the benefit of all
citizens by serving as a curb on the excesses of the State. However, the damages must be based on clear
principles and must always be appropriate, taking into account the circumstances of the conviction and
imprisonment and the wrongfully convicted individual.

[365] The Province contends that should the Mr. Henry succeed in establishing a violation of ss. 7 or 11(d) of
the Charter by Crown Counsel, damages are not an “appropriate and just” remedy under s. 24(1). In the
further alternative, the Province asserts that damages are not an appropriate and just remedy under s. 24(1)
because Crown Counsel did not engage in the degree of blameworthy conduct that warrants an award for

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damages, other than a nominal one, as the actions of the Crown Counsel were not motivated by any ill-will
toward Mr. Henry, and Crown Counsel did not treat him differently than any other accused.

[366] In Ward, Chief Justice McLachlin explained that Charter damages will be deemed appropriate and just
“to the extent that they serve a useful function or purpose. The Chief Justice went on to explain the three
interrelated purposes that Charter damages may serve:
a) compensation, which is in most cases the most prominent of the three functions, recognizes that the
Charter breach may have caused the plaintiff to suffer physical, psychological and pecuniary losses
that should be remedied. The plaintiff should be returned to the position they would have been in had
the Charter breach not occurred, insofar as it is possible to do so. Compensation should also be
provided for intangible harm that the Charter breach caused the plaintiff, such as embarrassment,
humiliation, or distress;
b) vindication, which focuses on the harm that the Charter breach has caused to society and acts as an
affirmation of constitutional values; and
c) deterrence, which also has a societal purpose, and seeks to secure the government’s future compliance
with the constitution.

[367] Even if a claimant establishes that damages are functionally justified, the state may still establish that
other considerations render s. 24(1) damages inappropriate or unjust. At this point, however, the burden shifts
to the state to demonstrate that countervailing factors should militate against an award of damages. The complete
catalogue of countervailing considerations remains to be developed as the law in this area matures, but two
considerations were found by the Court in Ward to be apparent: the existence of alternative remedies and
concerns for good governance.

[368] If the state establishes that an award of Charter damages would interfere with good governance,
damages should not be awarded unless the state conduct meets a minimum threshold of gravity.

[369] In Ward at paras. 50 – 54 and 57, the Chief Justice explained:

[50] In other cases, like this one, the claimant's losses will be non-pecuniary. Non-pecuniary damages
are harder to measure. Yet they are not by that reason to be rejected. Again, tort law provides assistance.
Pain and suffering are compensable. Absent exceptional circumstances, compensation is fixed at a fairly
modest conventional rate, subject to variation for the degree of suffering in the particular case. In extreme
cases of catastrophic injury, a higher but still conventionally determined award is given on the basis that it
serves the function purpose of providing substitute comforts and pleasures: Andrews v. Grand & Toy.
[51] When we move from compensation to the objectives of vindication and deterrence, tort law is less
useful. Making the appropriate determinations is an exercise in rationality and proportionality and will
ultimately be guided by precedent as this important chapter of Charter jurisprudence is written by
Canada's courts. That said, some initial observations may be made.
[52] A principal guide to the determination of quantum is the seriousness of the breach, having regard
to the objects of s. 24(1) damages. The seriousness of the breach must be evaluated with regard to the
impact of the breach on the claimant and the seriousness of the state misconduct: see, in the context of
s. 24(2), R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353. Generally speaking, the more
egregious the conduct and the more serious the repercussions on the claimant, the higher the award for
vindication or deterrence will be.
[53] Just as private law damages must be fair to both the plaintiff and the defendant, so s. 24(1)
damages must be fair -- or "appropriate and just" -- to both the claimant and the state. The court must
arrive at a quantum that respects this. Large awards and the consequent diversion of public funds may
serve little functional purpose in terms of the claimant's needs and may be inappropriate or unjust from the
public perspective. In considering what is fair to the claimant and the state, the court may take into account
the public interest in good governance, the danger of deterring governments from undertaking beneficial

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new policies and programs, and the need to avoid diverting large sums of funds from public programs to
private interests.
[54] Courts in other jurisdictions where an award of damages for breach of rights is available have
generally been careful to avoid unduly high damage awards. This may reflect the difficulty of assessing
what is required to vindicate the right and deter future breaches, as well as the fact that it is society as a
whole that is asked to compensate the claimant. Nevertheless, to be "appropriate and just", an award of
damages must represent a meaningful response to the seriousness of the breach and the objectives of
compensation, upholding Charter values, and deterring future breaches. The private law measure of
damages for similar wrongs will often be a useful guide. However, as Lord Nicholls warns in Ramanoop,
at para. 18, "this measure is no more than a guide because ... the violation of the constitutional right will
not always be coterminous with the cause of action at law".
…
[57] To sum up, the amount of damages must reflect what is required to functionally serve the objects
of compensation, vindication of the right and deterrence of future breaches, insofar as they are engaged in
a particular case, having regard to the impact of the breach on the claimant and the seriousness of the state
conduct. The award must be appropriate and just from the perspective of the claimant and the state.

3. Are There Countervailing Factors that Defeat the Functional Considerations Supporting an
Award of Damages or Render an Award of Damages Inappropriate or Unjust?

[370] The Province contends that vindication is an irrelevant consideration as the Court of Appeal entered
acquittals on each of the charges of which Mr. Henry was convicted in 1983. Such a submission, if accepted,
would impoverish the aspirations of the Charter expressed in Ward. Mr. Henry spent almost 27 years in prison
as a convicted serial rapist, enduring the wrath and scorn of fellow inmates, and living without any real privacy
or dignity. His 2010 acquittals do not vindicate that reality, and it is what he endured for 27 years that must be
the subject of vindication.

[371] Next, the Province contends that deterrence is an unnecessary object, as the practices of 1982 have been
replaced by a robust disclosure practice post-Stinchcombe. This narrow view of deterrence fails to appreciate its
stated object as explained by Chief Justice McLachlin in Ward: to regulate government behavior, generally, in
order to achieve compliance with the Constitution, and influencing government behavior in order to secure state
compliance with the Charter in the future.

[372] Finally, the Province contends that the fact that it was through the efforts of the Criminal Justice Branch
that Mr. Henry’s appeal from conviction was re-opened to be heard on its merits should be considered in the
assessment of damages. I do not accept that these efforts mitigate Mr. Henry’s damages. At best, they brought
about the end of his incarceration and his acquittal of the charges of which he was convicted in 1983, but they
cannot lessen the damages to which he is entitled for the 27 years of incarceration that he did suffer described, as
I have referred to above by Moldaver J. as “an extraordinary human toll” demonstrating, if true, “a shocking
disregard for his Charter rights”, and by Chief Justice McLachlin and Madam Justice Karakatsanis as
“egregious”.

[373] I find that Mr. Henry has established that damages would be a just and appropriate remedy in these
circumstances. As I will discuss in greater detail, the three objectives of compliance, vindication, and deterrence
will be furthered through an award of damages for the consequences of the Charter breaches that Mr. Henry
suffered. The Province has not persuaded me of the existence of countervailing factors that would justify a
refusal to award damages in this case.

4. The Quantum of Damages

[374] In August 1976, Canada ratified the International Covenant on Civil and Political Rights [Covenant].
Article 14(6) of the Covenant provides:

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When a person has by final decision been convicted of a criminal offence and when subsequently his
conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact
shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as
a result of such conviction shall be compensated according to law, unless it is proved that the non-
disclosure of the unknown fact is wholly or partly attributable to him.

[375] In June 1988, the federal and provincial Ministers of Justice formulated the Federal/Provincial
Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons [Guidelines]. The Guidelines
required, amongst other requirements, that the person who was allegedly wrongfully convicted show that he or
she was factually innocent of the crime with which he or she was charged. The Guidelines also required that:
1. The wrongful conviction must have resulted in imprisonment, all or part of which has been served.
2. Compensation should only be available to the actual person who was wrongfully convicted and
imprisoned.
3. Compensation should only be available to an individual who has been wrongfully convicted and
imprisoned as a result of a Criminal Code or other federal penal offence.
4. As a condition precedent to compensation, there must be a free pardon granted under section
748(2) of the Criminal Code or a verdict of acquittal entered by an Appellate Court pursuant
to a referral made by the Minister of Justice pursuant to section 696.3.
5. Eligibility for compensation would only arise when sections 696.3 and 748 were exercised in
circumstances where all available appeal remedies have been exhausted and where a new or newly
discovered fact has emerged, tending to show that there has been a miscarriage of justice.
As compensation should only be granted to those persons who did not commit the crime for which
they were convicted (as opposed to persons who are found not guilty), a further criteria would
require:
(a) If a pardon is granted under section 748, a statement on the face of the pardon
based on an investigation that the individual did not commit the offence; or
(b) If a reference is made by the Minister of Justice under section 696.3, a statement by
the Appellate Court, in response to a question asked by the Minister of Justice
pursuant to section 696.3(2), to the effect that the person did not commit the
offence.
It should be noted that sections 696.3 and 748 may not be available in all cases in which an
individual has been convicted of an offence which he did not commit, for example, where an
individual had been granted an extension of time to appeal and a verdict of acquittal had been
entered by an Appellate Court. In such a case, a Provincial Attorney General could make a
determination that the individual be eligible for compensation, based on an investigation which
has determined that the individual did not commit the offence.

[376] The Guidelines are not binding legislation and have never been treated as such: Hinse at para. 85. As Mr.
Sydney L. Robins, Q.C. noted in his advisory opinion on the compensation of Steven Truscott, most
contemporary compensation awards have departed in some respects from the Guidelines: S.L. Robins, In the
Matter of Steven Truscott: Advisory Opinion on the Issue of Compensation, March 28, 2008, online, Chapter 5.
A. Compensation

i. Damages for Mr. Henry's Daughters

[377] Mr. Henry has advanced a claim for emotional distress and loss of his guidance, on behalf of his
daughters, and for the time and money that they spent caring for him.

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[378] If she were able to advance such a claim, the fact that she unfortunately predeceased him would preclude
Mr. Henry’s daughter Kari from recovery for emotional distress and loss of his guidance.

[379] As the Supreme Court of Canada said in Ryan v. Moore, 2005 SCC 38 (CanLII) at para. 18: “…it is
well known that at common law a personal action in tort is extinguished on the death of the victim or the
wrongdoer: actio personalis moritur cum persona [a personal action dies with the person]…”.

[380] Furthermore, neither of Mr. Henry’s daughters have a right of action for damages for loss of love,
guidance and affection, because the harm caused to Mr. Henry did not result in his death. This principle was
explained by Mr. Justice Macfarlane, for the Court, in Porpaczy (Guardian ad litem of) v. Truitt, [1990] B.C.J.
No. 2018 (C.A.) [Porpaczy]. There, Macfarlane J.A. approved of the following passage from the trial judgment:
In British Columbia, compensation to family members can only be awarded if the injuries to a person
result in death. The Family Compensation Act, R.S.B.C. 1979, c. 120, states this in s. 3. In the case of a
severely brain damaged person totally unable to carry on a normal family role, one might be tempted, by
analogy to the statute, to award compensation to another family member. In Dhaliwal v. Morrisette (1981),
1981 CanLII 607 (BC SC), 32 B.C.L.R. 225 at 227, Munroe J. was "of the opinion that no logical
distinction can or should be drawn between the death of a mother and her being rendered physically and
mentally incapable of raising her child in a normal fashion". He awarded the infant plaintiff the sum of
$5,000 for loss of care and guidance of his mother. With respect, I feel I am bound by the decision of the
British Columbia Court of Appeal in Beecham, [Beecham v. Hughes (1988), 1988 CanLII 2839 (BC
CA), 27 B.C.L.R. (2d) 1] supra, and by the express provisions of the Family Compensation Act.

[381] Although the claim for non-pecuniary damages for Mr. Henry’s daughters was advanced in trust by him, I
see no reason to depart from the reasoning in Porpaczy and decline to do so. To the extent that a part of his in
trust claim for his daughters is for out of pocket expenses or assistance provided to him, such a claim is one for
which damages could be recovered: Feng v. Graham, 1988 CanLII 3044 (BC CA), [1988] B.C.J. No. 514
(C.A.).

ii. Past Hypothetical Events

[382] In Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at 470 – 471, the Supreme Court
of Canada established that:
Hypothetical events (such as how the plaintiff's life would have proceeded without the tortious injury) or
future events need not be proven on a balance of probabilities. Instead, they are simply given weight
according to their relative likelihood: Mallett v. McMonagle, [1970 A.C. 166 (H.L.); Malec v. J.C. Hutton
Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak v. Ippolito, 1985 CanLII 62 (SCC),
[1985] 1 S.C.R. 146. For example, if there is a 30 percent chance that the plaintiff's injuries will worsen,
then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that
risk. A future or hypothetical possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation: Schrump v. Koot (1977), 1977 CanLII 1332 (ON
CA), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 74 D.L.R.
(4th) 1 (Ont. C.A.).
By contrast, past events must be proven, and once proven they are treated as certainties. In a negligence
action, the court must declare whether the defendant was negligent, and that conclusion cannot be couched
in terms of probabilities. Likewise, the negligent conduct either was or was not a cause of the injury. The
court must decide, on the available evidence, whether the thing alleged has been proven; if it has, it is
accepted as a certainty: Mallett v. McMonagle, supra, Malec v. J.C. Hutton Proprietary Ltd., supra;
Cooper-Stephenson, supra, at pp. 67-81.

iii. The Likelihood of Recidivism

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[383] The first consideration to be brought to bear on Mr. Henry’s claim for compensation is the Province’s
contention that even if Mr. Henry had not been incarcerated for the offences of which he was acquitted by the
Court of Appeal, based upon his criminal record and activities prior to those conviction, and the balance of
probabilities, it is likely that he would have committed other criminal offences and been convicted of and
incarcerated for those other offences.

[384] Dr. John Stephen Wormith was asked to provide his opinion on the risk of Mr. Henry reoffending had he
not been convicted as he was in 1983. Dr. Wormith is a registered psychologist in both Saskatchewan and
Ontario, and has been a professor in the Department of Psychology at the University of Saskatchewan for the
past 16 years. He has served, amongst other endeavors as an Institutional Psychometrist in the Province of
Ontario, an Institutional Psychologist with the Corrections Services of Canada, a Senior Officer (Solicitor
General), Director of Research for the Corrections Services of Canada, Deputy Superintendent-Treatment for the
Province of Ontario, a Consulting Psychologist with the Corrections Services of Canada, a Psychologist-in-Chief
in the province of Ontario, and the Chief of Risk Management in the province of Ontario.

[385] In order to provide his opinion, Dr. Wormith completed a statistical information form on recidivism
created for the federal government, referred to as the GSIR. The form includes 15 items, and he scored
Mr. Henry at -9, based upon the criteria utilized in that form. That score placed Mr. Henry at the outer limit of
the group from which only one out of every three offenders would not commit an indictable offence after their
release. The group, scored -8 to -5 on the form, are considered to represent those where two out of every five
offenders will not commit an indictable offence after their release. Overall, Dr. Wormith assessed the likelihood
of Mr. Henry “recidivating” within three years of release from custody in 1980 at 70%.

[386] In cross-examination, Dr. Wormith agreed that there are limitations on retrospective risk assessments and
that there is a known and significant decline in recidivism at age 40 that begins even before that age.

[387] Dr. Paul G. Janke is a general and Forensic Psychiatrist who practices in Vancouver, British Columbia.
He examined Mr. Henry on two occasions and reviewed his medical and other records. Using a variety of
statistical risk assessment tools, Dr. Janke reached the conclusion that in May of 1980, Mr. Henry represented an
extremely high risk for what he termed “further violent criminal reoffending”, and that he would have
“continued to engage in criminal behaviour that would have brought him into conflict with the law, resulting in
an ongoing pattern of repeated incarceration”.

[388] I have serious reservations about the validity of applying statistical analyses to the risk that Mr. Henry
would have committed other criminal offences had he not been convicted of the offences for which the Court of
Appeal acquitted him. Such blunt instruments may be useful for predicting the behavior of large groups, but I
am not persuaded that they offer reliable predictability for individuals. If the same instruments were applied to
Mr. Henry upon his release in 2009, he would have been expected to further reoffend. His track record since his
release to some extent belies such an expectation.

[389] Dr. Grounds was of the opinion that determining the prospects of Mr. Henry reoffending required pure
speculation, which he refused to engage in, but he thought it was feasible that Mr. Henry would not reoffend
given the number of optimistic signs.

[390] That said, based upon his criminal record prior to 1982, and affording some credence to the risk
assessment tools employed by Drs. Wormith and Janke, I conclude that even if Mr. Henry had not been
incarcerated for the offences for which he was acquitted by the Court of Appeal, it is probable that he would
have experienced some periods of incarceration for other offences during the period of time that elapsed between
his convictions and his release.

[391] Prior to the 1982 convictions, Mr. Henry had spent roughly half of his adult life in custody. He testified
that he was released from his final custodial sentence on May 21, 1980. Between 1980 and 1982, Mr. Henry was
on parole under the supervision of Mr. Phillipson. Mr. Phillipson’s reports indicate that he initially expected that
Mr. Henry would reoffend in relatively short order. However, Mr. Phillipson’s reports show that he was surprised
to discover that, other than a relatively minor marijuana charge that did not result in a custodial sentence,
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Mr. Henry had not reoffended by early 1982. Mr. Phillipson was optimistic about Mr. Henry’s potential,
although he acknowledged that Mr. Henry would likely experience some “highs and lows” in the future.

[392] The optimism expressed by Mr. Phillipson and the fact that Mr. Henry remained out of custody between
May 21, 1980 and his arrest on the 1982 charges suggest that he would perhaps not have spent as much time in
custody between 1982 and 2009 as he had in the past. However, because of the step-up principle of sentencing
and the likelihood, expressed by Mr. Phillipson, that Mr. Henry would experience some “lows” in the future, I
find that had Mr. Henry not been convicted in 1982, it is probable that he would have continued to offend with
some frequency as a relatively petty criminal, and found himself incarcerated at various intervals for
approximately one-third of the time that he did spend in custody between 1982 and 2009.

iv. Past Loss of Opportunity to Earn Income

[393] The next consideration that must be brought to bear on Mr. Henry’s claim for compensation is the income
that he would probably have earned during the years he was incarcerated for the offences which he was later
acquitted.

[394] Despite the evidence that his jail time was apparently incident and discipline free, I am not prepared to
find that his progress in custody provides confirmatory evidence of Mr. Henry's essential character. Although he
went, as his counsel described, from pariah to president of a prisoners’ committee while in prison, that
environment was little different from that he experienced during prior periods of incarceration, which had little
effect upon his activities, once he was released in May of 1980.

[395] Mr. Henry contends that the only period that can be usefully referenced for the determination of this
traditional tort head of damages is the period when he was on parole from May 1980 until July 1982, which he
terms “the transition period". In that time, he had a number of jobs, but experienced difficulty in maintaining
steady and uninterrupted job tenure.

[396] Dr. Janke expressed the view that:

Mr. Henry, by his self-report and in the materials provided to me, would continue to meet the criteria for
Antisocial Personality Disorder. He was unable to maintain himself in any form of steady employment. He
was not able to maintain himself in any form of stable accommodation. He was in a highly unstable
relationship with his then wife. He by self-report and the materials provided to me continued to engage in
illegal activities through this time frame.

[397] Even if one were to accept, as Mr. Henry contends, that it is reasonable to predict that with time the
stability of his employment record would improve, his employment prospects remained very limited even if he
had not been incarcerated for the offences for which he was acquitted by the Court of Appeal.

[398] Robert Carson is an economist. He prepared a report for Mr. Henry, assessing his potential past income
had he not been incarcerated from July 1982 to the date of the trial of this action. His assessment is based upon
reported past earnings of British Columbia males similar in age to Mr. Henry. Mr. Carson's evidence is that the
sum of all past earnings for a male with less than grade 9 education during this time period would have been
$1,013,920, increased by non-wage benefits to $1,115,300. For a male with a high school diploma, the net of the
effects of unemployment and part-time work would be $1,391,136. Non-wage benefits increase this to
$1,530,300.

[399] Mr. Douglas C. Hildebrand is also an economist. He was retained by all of the original defendants to
provide his assessment of Mr. Henry’s potential past income had he not been incarcerated from March of 1983
until his 65th birthday on October 22, 2011. Mr. Hildebrand’s assessment is based upon the extrapolation of
Mr. Henry’s reported employment and earnings summaries from his Canada Pension Plan Statement of
Contributions from 1966 to 1982.

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[400] I do not fault Mr. Hildebrand for using this approach, as I expect he did so on instructions, but I do not
find it to be of assistance. The nature of the work that Mr. Henry engaged in prior to 1982 was, as he himself
conceded, sporadic and unsteady. I have no difficulty in accepting that he was paid in cash for at least some of
that work, and that he likely chose not to report his cash income. I find it likely that he did not report all of his
non-cash income either, although the report relied upon by Mr. Hildebrand appears to have been generated in
large part, if not entirely, from information provided by Mr. Henry’s employers. Nonetheless, I find that his
reported employment and earnings summaries from 1966 to 1982 are unlikely to represent the income he
actually earned in that time period.

[401] As Mr. Hildebrand recognized, Mr. Henry was incarcerated for various intervals between 1966 and 1982,
resulting in periods of time when he would have been unable to earn income, and periods of time when he would
have had to seek employment with no recent history to support a job application.

[402] I find that it is reasonable to conclude that Mr. Henry would at best have achieved an income level equal
to that of a high school graduate for some part of the period of time when he was incarcerated for the offences
for which the Court of Appeal acquitted him. I recognize that he would have faced periods of time when he
would have been unable to earn income, and periods of time when he would have had to seek employment with
no recent history to support a job application due to further periods of incarceration. I also find that based upon
his reported work history, Mr. Henry would not have been employed full-time during the periods when he would
not have been incarcerated for offences, had he not been convicted as he was in 1982.

[403] Factoring in these findings, I conclude that a reasonable assessment of Mr. Henry’s past loss of income
earning opportunity should be based on the assumption that he would have been employed for one half of the
period between the date of his conviction on March 15, 1983 and the date of his acquittals by the Court of
Appeal on October 27, 2010. This is a shorter period of time than that assumed by Mr. Carson, but using his
table for the incomes of B.C. males with high school graduation certificates, for this shorter period, and
including an allowance for non-wage benefits, I assess Mr. Henry’s past loss of income earning opportunity at
the sum of $530,000.

B. Special Damages

[404] Dr. Lohrasbe diagnosed Mr. Henry as having several personality disorders, with the dominant features of
paranoid personality disorder and schizotypal personality disorder. He expressed the opinion that the intensity of
Mr. Henry’s dysfunction would decrease over time, and that he could be managed in the community with
supportive and directive psychotherapy with someone he trusts.

[405] Dr. Grounds expressed his opinion that Mr. Henry has already shown remarkable resilience, and
encouraged the continued development of a therapeutic relationship between Mr. Henry and Dr. Nader.

[406] Mr. Henry and the Province agreed on the following special damages, which I award:

a) Treatment of Mr. Henry by Dr. Nader in the amount of $13,692.50;

b) Mr. Henry’s legal expenses in the amount of $450/year for 23 years (1983-2006) = $10,350;
c) Ms. Olivares’ mileage in the amount of $489.30;
d) Ms. Olivares’ parking in the amount of $260.00;
e) Ms. Olivares’ housing and utility expenses: 50% of 40,800 = $20,400; and
f) Ms. Olivares’ wage loss in the amount of $11,500.

Total: $56,691.80

C. Non-Pecuniary Damages

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[407] As Mr. Justice Dickson, as he then was, explained in Andrews v. Grand & Toy Alberta Ltd., 1978
CanLII 1 (SCC), [1978] 2 S.C.R. 229 at 261 – 262 [Andrews]:
… The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more
than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier
decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true
restitution. Money can provide for proper care: this is the reason that I think the paramount concern of the
courts when awarding damages for personal injuries should be to assure that there will be adequate future
care.
However, if the principle of the paramountcy of care is accepted, then it follows that there is more
room for the consideration of other policy factors in the assessment of damages for non-pecuniary losses.
In particular, this is the area where the social burden of large awards deserves considerable weight. The
sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and
suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims. It is
in this area that awards in the United States have soared to dramatically high levels in recent years.
Statistically, it is the area where the danger of excessive burden of expense is greatest.
It is also the area where there is the clearest justification for moderation. As one English
commentator has suggested, there are three theoretical approaches to the problem of non-pecuniary loss
(Ogus, 35 M.L.R.1). The first, the "conceptual" approach, treats each faculty as a proprietary asset with an
objective value, independent of the individual's own use or enjoyment of it. This was the ancient "bot," or
tariff system, which prevailed in the days of King Alfred, when a thumb was worth thirty shillings. Our
law has long since thought such a solution unsubtle. The second, the "personal" approach, values the
injury in terms of the loss of human happiness by the particular victim. The third, or "functional"
approach, accepts the personal premise of the second, but rather than attempting to set a value on lost
happiness, it attempts to assess the compensation required to provide the injured person "with reasonable
solace for his misfortune." "Solace" in this sense is taken to mean physical arrangements which can make
his life more endurable rather than "solace" in the sense of sympathy. To my mind, this last approach has
much to commend it, as it provides a rationale as to why money is considered compensation for non-
pecuniary losses such as loss of amenities, pain and suffering, and loss of expectation of life. Money is
awarded because it will serve a useful function in making up for what has been lost in the only way
possible, accepting that what has been lost is incapable of being replaced in any direct way. As Windeyer
J. said in Skelton v. Collins, supra, at p. 495:
... he is, I do not doubt, entitled to compensation for what he suffers. Money may be
compensation for him if having it can give him pleasure or satisfaction. ... But the money
is not then a recompense for a loss of something having a money value. It is given as
some consolation or solace for the distress that is the consequence of a loss on which no
monetary value can be put.
If damages for non-pecuniary loss are viewed from a functional perspective, it is reasonable that
large amounts should not be awarded once a person is properly provided for in terms of future care for his
injuries and disabilities. The money for future care is to provide physical arrangements for assistance,
equipment and facilities directly related to the injuries. Additional money to make life more endurable
should then be seen as providing more general physical arrangements above and beyond those relating
directly to the injuries. The result is a coordinated and interlocking basis for compensation, and a more
rational justification for non-pecuniary loss compensation.

[408] In my opinion, it would be duplicative to award both non-pecuniary damages and to also award damages
to vindicate Mr. Henry’s breached Charter rights, and to deter similar breaches of Charter rights. Given the
stated purpose of an award of non-pecuniary damages, I prefer to consider what Mr. Henry might recover on a
tort law basis for non-pecuniary damages when addressing the second and third Ward objectives.

D. Vindication of Mr. Henry’s breached Charter rights

[409] In Ward, the Court made several references to the utility of international comparators in considering the
approach to be taken to the assessment of constitutional damages.
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[410] In the United Kingdom, a maximum compensation award of £1,000,000 (approximately $2 million Cdn.)
is available for individuals who have been imprisoned for more than ten years.

[411] In the United States, the compensation schemes often compensate on the basis of per year of
incarceration. The amounts fluctuate but the maximum appears to be $80,000 per year in Texas. Other states
have simply a maximum compensation cap. The highest cap appears to be $1 million in Tennessee. U.S. federal
law provides compensation of up to $50,000 per year of wrongful imprisonment and $100,000 per year on death
row.

[412] Although several foreign jurisdictions have enacted compensation schemes for persons who have been
the subject of miscarriages of justice, Canada has not chosen to do so. Foreign schemes have generally required
conclusive proof of factual innocence before compensation will be provided. In the result, I do not find foreign
legislative schemes to be of assistance.

[413] I reject the “one size fits all” approach to compensation for wrongful conviction and resultant
incarceration, for the same reasons that I have rejected Mr. Henry’s proposal to gross up amounts provided ex
gratia to individuals who have been wrongfully convicted, which I will discuss in further detail. Moreover, this
type of approach is inconsistent with the functional approach in Ward, and was cautioned against by the Supreme
Court of Canada in Hinse.

[414] In Taunoa v. Attorney General, [2008] 1 N.Z.L.R. 429 (S.C.) [Taunoa], a judgment cited in Ward, a
similar approach was taken by the Supreme Court of New Zealand. There, the five plaintiffs were prisoners at
Auckland Prison and were subjected to a “Behaviour Management Regime” (“BMR”) operated by the
Department of Corrections between 1998 and 2004. BMR was designed to adjust the behaviour of disruptive
prisoners through a program that entailed segregation and the substantial isolation of prisoners in separate cells
for all but one or two hours of the day. The severe restrictions were gradually lifted if there were improvements
in behaviour. The movement of the prisoners to less restrictive conditions was entirely at the discretion of
correctional officials with no administrative rights of review or challenge.

[415] The five members of the New Zealand Supreme Court in Taunoa wrote five separate judgments, but
certain principles emerge from the judgments. The Court was in fundamental agreement that the New Zealand
Bill of Rights Act [BORA] damages do not fill the same function as common law damages. BORA damages are a
public law remedy to be awarded at the discretion of the Court where necessary to fulfill the objective of
“vindication” of a breach of rights. The goal of such an award is less to compensate the plaintiff than to ensure
an end to the breach and securing future compliance.

[416] Given the public nature of the remedy of damages for human rights violations, and the primary
importance of vindication rather than compensation as a remedial goal, a majority of the Court in Taunoa
(Blanchard, Tipping and McGrath JJ.) viewed damages as not only a discretionary remedy but an extraordinary
one. The Court found that in most cases, a declaration will suffice to meet the goal of vindication by giving
express recognition to the importance of the right while at the same time deterring future breaches:
The court’s finding of a breach of rights and a declaration to that effect will often not only be appropriate
relief but may also in itself be a sufficient remedy in the circumstances to vindicate a plaintiffs right. That
will often be the case where no damage has been suffered that would give rise to a claim under private
causes of action and, in the circumstances, if there is no need to deter persons in the position of the public
officials from behaving in a similar way in the future. If in all the circumstances the court’s
pronouncement that there has been a breach of rights is a sufficiently appropriate remedy to vindicate the
right and afford redress then, subject to any questions of costs, that will be sufficient to meet the primary
remedial objective.
Taunoa at para. 368 per McGrath J.

[417] Although damage awards were made, they were made in very modest terms. I am unable to find much
assistance from this case. Mr. Henry’s circumstances cannot be said in any way to be one where no damage has

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been suffered, nor is it a case where this Court’s finding of a breach of rights and a declaration to that effect is
appropriate or sufficient relief to vindicate the violation of his Charter rights.

[418] It is perhaps a good thing that there are so few Canadian judicial authorities that offer guidance in the
assessment of damages for wrongful convictions, as such cases should be rare. There have been prior cases
where such convictions have occurred, and compensation sought that have been resolved by way of settlement
or ex gratia payments.

[419] Dealing firstly with the tort concept of capped non-pecuniary damages, the current maximum for non-
pecuniary damages under the cap arising from the trilogy of cases in which the cap was created by the Supreme
Court of Canada (Andrews; Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287; Thornton v. School
District No. 57 (Prince George), 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267) is roughly $360,000.

[420] The application of the cap for cases involving allegations of sexual assault was considered by the British
Columbia Court of Appeal in S.Y. v. F.G.C., [1996] B.C.J. No. 1596 [S.Y.]. At paras. 29 – 31, Macfarlane J.A.
held:
[29] The policy reasons underlying the "cap" were discussed by Cory J. in Hill v. Church of Scientology
of Toronto (1995), 1995 CanLII 59 (SCC), 126 D.L.R. (4th) 129 at 177-179, where the appellants
argued for a cap on general damages in defamation cases. Cory J. said this:
The appellants contend that there should be a cap placed on general damages in
defamation cases just as was done in the personal injury context. In the so-called "trilogy"
of Andrews v. Grand & Toy Alberta Ltd. (1978), 1978 CanLII 1 (SCC), 83 D.L.R.
(3d) 452, [1978] 2 S.C.R. 229, 3 C.C.L.T. 225; Arnold v. Teno (1978), 1978 CanLII 2
(SCC), 83 D.L.R. (3d) 609, [1978] 2 S.C.R. 287, 3 C.C.L.T. 272; and Thornton v. School
District No. 57 (1978), 1978 CanLII 12 (SCC), 83 D.L.R. (3d) 480, [1978] 2 S.C.R.
267, 3 C.C.L.T. 257, it was held that a plaintiff claiming non-pecuniary damages for
personal injuries should not recover more than $100,000.
In my view, there should not be a cap placed on damages for defamation. First, the injury
suffered by a plaintiff as a result of injurious false statements is entirely different from the
non-pecuniary damages suffered by a plaintiff in a personal injury case. In the latter case,
the plaintiff is compensated for every aspect of the injury suffered: past loss of income
and estimated future loss of income, past medical care and estimated cost of future
medical care, as well as non-pecuniary damages. Second, at the time the cap was placed
on non-pecuniary damages, their assessment had become a very real problem for the
courts and for society as a whole. The damages awarded were varying tremendously not
only between the provinces but also between different districts of a province. Perhaps as a
result of motor vehicle accidents, the problem arose in the courts every day of every week.
The size and disparity of assessments was affecting insurance rates and, thus, the cost of
operating motor vehicle and, indeed, businesses of all kinds throughout the land. In those
circumstances, for that one aspect of recovery, it was appropriate to set a cap.
[30] I am not persuaded that the policy reasons which gave rise to the imposition of a cap in "the
trilogy" have any application in a case of the type at bar. In my opinion the differences described by Cory
J. exist in this case as well. The policy considerations which arise from negligence causing catastrophic
personal injuries, in the contexts of accident and medical malpractice, do not arise from intentional torts
involving criminal behaviour. There is no evidence before us that this type of case has any impact on the
public purse, or that there is any crisis arising from the size and disparity of assessments. A cap is not
needed to protect the general public from a serious social burden, such as enormous insurance premiums.
Insofar as damage awards may be so high as to be wholly erroneous, or wholly disproportionate, an
appellate court may intervene to correct disparity, and to foster consistency.
[31] In contrast, sexual abuse claims do not usually result in awards guaranteeing lifetime economic
security. In the catastrophic personal injury cases, awards under other heads of damages are so high that
there may be a lesser need for general damages to provide solace and to substitute for lost amenities. In
some cases, sexual abuse victims may require and deserve more than the "cap" allows, due to the

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unpredictable impact of the tort on their lives. Judges, juries and appellate courts are in a position to decide
what is fair and reasonable to both parties according to the circumstances of the case.

[421] In my opinion, if tort principles were to be applied to Mr. Henry’s claim, for the reasons discussed by
Macfarlane J.A. in S.Y., the cap in “the trilogy” should not be applied. I will return to discuss the trilogy later in
these reasons for judgment.

[422] Moreover, as Chief Justice McLachlin pointed out in Ward, tort law is less useful when considering the
objectives of vindication and deterrence. I am satisfied that this case is one of exceptional circumstances as
described by Chief Justice McLachlin at para. 50 in Ward.

[423] Dr. Grounds summarized the effect of Mr. Henry’s 1983 convictions and resulting incarceration in his
report dated June 8, 2015 as follows:
235. Mr. Henry’s loss of liberty for 27 years entailed the loss of a substantial proportion of his expected
normal life-course. His personal and family circumstances prior to conviction, and his future expectations
at that time, cannot be restored to him. His life expectancy post-release is substantially reduced. The
consequent personal losses can be difficult to face and accept. As noted above, however, Mr. Henry is
unusually resilient and positive in his outlook. His 27 years in prison was also associated with adaptation
to the prison environment and learning habits and modes of interaction characteristic of prison life. In
consequence, he experienced some upsetting and embarrassing difficulties in social and family
relationships after release.
236. Mr Henry’s loss of reputation arising from his wrongful convictions, and his experiences of
humiliation and disgrace arising from his convictions and subsequent imprisonment, have preoccupied
Mr. Henry, and have contributed to his symptoms of social anxiety and his worries and apprehensions
about how others view him in the community. In addition, whilst in prison he experienced chronic fear of
being at risk of serious assault because of the nature of the convictions. Furthermore, the convictions
negatively influenced the perceptions, assessments and judgments of his character and his risk by
clinicians, corrections staff, and parole authorities. These appraisals are exemplified in the 2004
Psychology assessment and the 2006 Parole panel assessment, and were determinative in relation to
normal release prospects. He was perceived as lacking in insight and refusing to progress. Psychologically,
this is stressful because he would have been isolated, not believed and unsupported in his claims he was
innocent.
237. During his period of imprisonment Mr. Henry experienced loss of privacy, deprivation of normal
day to day life experiences, and could not enjoy the developmental experiences he otherwise would have
had (such as education, work, civil rights and social interaction with family, neighbours and friends). The
aspect of these losses that is likely to have been most significant in relation to his state of mind and
psychiatric well-being was the loss of the ongoing relationship with his children and family. He
experienced an episode of significant depression in late 1982 after learning his ex-wife had another
partner. He was distressed in prison by the loss of contact with his daughters. Since release he has
experienced continuing emotional estrangement in the quality of his relationship with his older daughter.
He also feels substantial guilt about the death of his younger daughter and the difficulties she experienced
during her life without him.
238. Mr. Henry was also subjected to prison life, discipline, extraordinary punishments and prison diet
for 27 years whilst knowing that they were (un)justly imposed. I think this context contributed to the
content and maintenance of his persecutory delusions during his sentence. He believed he was being
provoked and subjected to interference by prison staff and inmates in order to prevent him pursuing his
case. In addition, there are vivid memories of prison that contribute to his intrusion/re-experiencing
symptoms of post-traumatic stress disorder.

[424] Mr. Henry’s treating psychologist, Dr. Rami Nader, began seeing Mr. Henry following his release from
custody in 2009 and had seen him some 120 times by the trial of this matter. He summarized Mr. Henry’s prison
experiences as follows:

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From early on in therapy, Mr. Henry reported that he felt his "spirit is contaminated" by the time that he
spent in prison and some of the things that he experienced and witnessed during the course of his
incarceration. He stated that he felt dehumanized by what he experienced during his 27 years in prison. He
reported that he has ongoing, disturbing memories of events that took place in prison and has only ever
talked about them in minimal detail over the course of the therapy sessions. Some of the disturbing
memories he identified included being strip searched multiple times, being physically assaulted multiple
times, spit on, had his bed defecated on, ridiculed by guards and other prisoners for his ongoing
proclamations of innocence, being repeatedly told he was a rapist and dangerous offender, and witnessing
and hearing about people being killed and suicides taking place in the prison. Mr. Henry explained that
due to the nature of the charges that he was convicted of, he felt constantly at risk during his time in
prison, fearing that if other inmates found out that he was in prison for multiple rapes, he would be killed.
He reported fearing for his life because of this on an almost daily basis when he was in prison. Mr. Henry
described feeling especially scared for his life during a prison riot in 2008, when he feared that people
were going to break into his cell and kill him. He stated that he felt he always had to be on guard and
vigilant to threat while he was in prison and this hypervigilance has continued into his life outside of
prison. He explained that one of his biggest fears during the course of his time in prison was that he was
going to die in prison, not having been able to clear his name or prove his innocence of the charges that he
was convicted of. He reported that he continues to get nightmares about being in prison and not being able
to get out.

[425] Dr. Nader commented that while improving, Mr. Henry continues to suffer from anxiety and relationship
difficulties, and difficulty adjusting to life after his lengthy incarceration. Dr. Nader concluded that Mr. Henry
still fears the police, and still engages in unusual/paranoid thinking. He recommended that Mr. Henry receive
regular therapy sessions with him, but, since March 2014, Mr. Henry has not chosen to see Dr. Nader nearly as
frequently as Dr. Nader proposed.

[426] For his part, Mr. Henry seeks to have his non-pecuniary damages assessed by reference to one group of
judicially-determined damage assessments for individuals who were charged with murder and who sought
damages for malicious prosecution and false imprisonment after the charges were stayed; and a number of other
cases where settlements reached between state actors and others who have been wrongly convicted, sentenced,
and incarcerated.

[427] The first group of cases is indexed at Klein v. Seiferling, 1999 CanLII 12644 (SK QB), [1999] S.J.
No. 297 (Q.B.) [Klein]. In Klein, four plaintiffs, Klein, Ransom, Moore, and Kozar, brought an action for
malicious prosecution and false imprisonment against the Attorney General of Saskatchewan, two police
officers, and two informants. The plaintiffs had been arrested in connection with a death that had occurred in
1991. The first informant died before the trial. The action against the second informant and the Attorney General
was dismissed; however, the plaintiffs succeeded in their claims against the two police officers. The Court found
that the police officers had acted recklessly and unreasonably, and were more motivated by the prospects of
receiving personal recognition for solving an old homicide than by the desire to carry out a responsible
investigation.

[428] The plaintiffs Klein, Kozar, and Moore were incarcerated for 14 days. The plaintiff Moore was not
arrested by the officers. Mr. Klein was found to have suffered emotional stress, humiliation and loss of
reputation. His non-pecuniary damages were assessed at $50,000.00. He was additionally awarded pecuniary
damages for loss of wages and holiday pay, loss of business income, and legal fees paid for his bail application
and defence.

[429] Mr. Kozar was found to have suffered depression, humiliation and a loss of reputation to the extent that
he consulted a psychiatrist and required medication for his condition. He was awarded $35,000.00 in non-
pecuniary damages, with pecuniary damages for lost wages and commissions, and legal fees paid for his bail
application and defence.

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[430] Mr. Ransom was found to continue to experience emotional stress and loss of reputation because of the
police officers' culpable conduct and was awarded non-pecuniary damages of $25,000.00, and pecuniary
damages for lost wages and holiday pay, legal fees paid for his bail application and defence, and other expenses.

[431] Mr. Moore was found to have experienced a high level of emotional anxiety and stress for which he
consulted a medical doctor and a psychiatrist. He was awarded non-pecuniary damages of $30,000.00, and
pecuniary damages for legal fees paid for his bail application and his defence.

[432] Mr. Henry invites me to use the awards in Klein to determine his damages by multiplying them by a
factor representing the portion of time the Klein plaintiffs spent in custody, grossed up to the amount of time that
Mr. Henry spent in custody. Given the relatively short periods of incarceration experienced by these men, I find
their damage awards of no real assistance, and I decline to do so. .

[433] The settlements in the second set of cases that Mr. Henry relies upon were reached following the advice
of eminent lawyers and former judges, and were not the result of litigation. These settlements include those for
Guy Paul Morin, Gregory Parsons, David Milgaard, Thomas Sophonow, and Steven Truscott.

[434] In 1986, Mr. Morin was acquitted of the first degree murder of a nine-year-old girl. The Ontario Court of
Appeal ordered a new trial, and that decision was upheld by the Supreme Court of Canada. Mr. Morin was
convicted at the second trial in 1992, and appealed that conviction. He was granted parole pending his appeal,
but before the appeal concluded, DNA evidence established that he could not have been the murderer. The
Attorney General for Ontario apologized to Mr. Morin and conceded his appeal.

[435] In all, Mr. Morin was incarcerated for 15 months and 26 days. In 1997, he was given an ex gratia
payment of $1.25 million for his wrongful conviction.

[436] In 1994, Mr. Parsons was convicted of the second degree murder of his mother and sentenced to life
imprisonment without parole for 15 years. He appealed his conviction and was granted parole pending his
appeal. His appeal concluded some two years after his conviction, and his conviction was quashed and a new
trial was ordered. He remained on bail pending a second trial. He was exonerated pending his second trial when
DNA evidence established his innocence, and the murderer of his mother was found.

[437] In all, Mr. Parsons served 60 days in intermittent custody, and was on restrictive bail conditions for some
seven years. His circumstances were the subject of a Commission of Inquiry conducted by the Honourable
Antonio Lamer. In 2002, he was provided with an ex gratia payment of $650,000, and a further $650,000 in
2005, together with almost $200,000 for legal expenses, based upon Mr. Lamer’s recommendations.

[438] Mr. Milgaard was convicted of sexual assault and murder in 1970. He served 22 years, two months and
one day in custody before he was eventually exonerated by DNA evidence, and the actual perpetrator of the
offences was found and convicted. Despite the absence of any apparent police or prosecutorial impropriety, in
the face of two civil claims by Mr. Milgaard, in 1999, he was paid the sum of $10 million, inclusive of a sum of
$750,000 to his mother, as an ex gratia payment, following a Commission of Inquiry into his wrongful
conviction.

[439] Mr. Sophonow was charged with the murder of Ms. Stoppel, which occurred on December 23, 1981.
Following a preliminary inquiry in 1982, he was tried before a judge and jury. The jury was unable to agree
upon a verdict and was discharged. A second trial was held in early 1983. At that trial, a jury convicted
Mr. Sophonow. An appeal from that conviction was allowed on the ground of misdirection and a new trial
ordered. The third trial took place early in 1985. After the discharge of one juror, the remaining eleven jurors
returned a verdict of guilty. On appeal, the Alberta Court of Appeal acquitted Mr. Sophonow based upon his
exculpatory alibi and other frailties in the trial process.

[440] The Honourable Peter Cory conducted an Inquiry into Mr. Sophonow’s case, and based in part upon
Mr. Sophonow’s own agreement, found that he was in part to blame for his wrongful conviction, as he had
withheld from or given false information to the police and his own counsel, and failed to disclose his full alibi.
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Nonetheless, Mr. Cory found that Mr. Sophonow’s errors paled in comparison to the misconduct of the state
operators, and if assessed in a negligence case, warranted only 10% responsibility.

[441] In all, Mr. Sophonow served 45 months in custody. In 2001, he was given an ex gratia payment of
$300,000 for income loss and care costs, together with $1.75 million for non-pecuniary damages, with interest.
Mr. Sophonow’s settlement followed the recommendations of Mr. Cory, who considered the Guidelines that I
will discuss below, including factors with respect to non-pecuniary losses, some of which also apply to Mr.
Henry:

a) the loss of privacy, even for the most basic physical function of emptying the bowels or bladder;

b) accepting and adjusting to prison life, including lost freedom and other civil rights, and the risk of
prison discipline;

c) a myriad of instances of personal humiliation demonstrated by the constant presence of guards,

transportation in handcuffs, and often degrading searches required on family visits;

d) the atmosphere of high tension and stress and the ever present danger of physical attack, particularly
in a maximum security facility but often equally in over-crowded and understaffed remand centers;

e) the loss of liberty and the ability to do everyday activities that bring joy and satisfaction, such as
associating with friends and family, working in a garden, doing home improvement, assisting family
and neighbors, attending a show or play, or teaching a child to skate or swim;

f) other foregone developmental experiences;

g) even on release, loss of reputation, ongoing difficulty with obtaining employment, and a resultant loss
of income, job training, promotions, and pension benefits, much of which may never be recouped;

h) a possibility, as a result of the wrongfully convicted person’s time in prison, of suffering a lifetime of
psychiatric disability; and

i) the effect of post-acquittal statements by public figures.

[442] Mr. Truscott was 14 years of age when a 12-year-old girl was murdered on the R.C.A.F. base at Clinton,
Ontario. In 1959, he was tried for murder as an adult, was convicted by a jury and sentenced to death. When his
appeal was dismissed in 1960, his sentence was commuted to life imprisonment.

[443] On August 28, 2007, the Ontario Court of Appeal concluded that Mr. Truscott's conviction was a
miscarriage of justice and had to be quashed, but declined to hold that Mr. Truscott was innocent of the crime.
Following the delivery of the Court of Appeal decision, the Attorney General for Ontario announced the
appointment of Mr. Robins to advise the provincial government on the issue of compensation for Mr. Truscott.

[444] Mr. Robins considered various approaches to compensation including what he referred to as the
standardized approach of basing the compensation on the number of years spent in custody. He rejected that
approach, and also rejected a tort-based approach.

[445] The standardized approach treats all those who were wrongfully imprisoned in the same manner,
generally allowing a specific sum of money for each year of imprisonment. It is my view that such an approach
is inapt, as it fails to focus on the individual and exactly what he or she has endured.

[446] Mr. Robins listed what he considered to be the purposes of an ex gratia payment for wrongful conviction
and incarceration as follows:

(1) to provide Mr. Truscott with the financial security needed to live the rest of his life in comfort and
dignity, with the ability to provide for his family as he sees fit;
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(2) to provide a measure of compensation to Mr. Truscott for his emotional suffering and his
economic loss; and

(3) to provide a public recognition of the seriousness of the wrong suffered by Mr. Truscott.

[447] Mr. Robins recommended that Mr. Truscott receive $250,000 per year for the 10 years he spent in jail and
$100,000 per year for the 40 years he spent on parole. Mr. Henry argues that this figure is a helpful one, but not
wholly so as it does not consider vindication and deterrence as discussed in Ward. He contends that the
settlement figures in these various cases should be used on a grossing up basis to account for the disparities in
the times spent in custody by those wrongfully convicted individuals and his own time in custody.

[448] I reject this means of arriving at an appropriate figure for damages for Mr. Henry. As I mentioned above,
this type of an approach is inconsistent with the functional approach of Ward, and was cautioned against by the
Supreme Court in Hinse.

[449] In Hinse, the accused had received a 15-year sentence for armed robbery, of which he had served five
years in prison and 10 years on parole. In 1997, 33 years after he was first sentenced to imprisonment, the
Supreme Court of Canada acquitted him on the basis that no reasonable and properly instructed jury could have
found him guilty on the evidence at trial. He sued various governmental agencies for compensation and reached
a settlement with the province of Quebec and a municipality for $5.5 million, of which $1.1 million was
allocated for non-pecuniary damages. The Court commented in obiter that an order that Canada pay an
additional amount under this head of damages would be “disproportionate”.

[450] In seeking a larger amount, Mr. Hinse relied on the same advisory body recommendations relied upon by
the plaintiff in the case at bar. The Court stated that:
... the amounts granted in the Marshall, Sophonow and Truscott cases were made further to the
recommendations of advisory bodies. They did not result from judicial awards and were based on
considerations that were very different from those on which damages are based.

[451] Mr. Henry contends that the first and obvious problem in assessing his entitlement to compensation is
how to determine the appropriate compensation for his being locked in a cell, 23 hours a day, seven days a week
for years, believing that such incarceration would last for the rest of his life. Clearly, 27 years in jail constitute
exceptional circumstances.

[452] As Mr. Cory noted in Mr. Sophonow’s case, during Mr. Henry’s wrongful incarceration, his liberty was
severely restricted and he was unable to engage in the kind of everyday activities that bring joy and satisfaction.
Even now that he has been released, Mr. Henry cannot regain the lost opportunities that those years may have
brought. Further, he had to acclimatize to prison life, including, for much of his incarceration, only being
allowed out to eat in the canteen or to exercise in the yard for one hour, and always being under the supervision
of the guards no matter how private or personal his activity was.

[453] For many of those years, Mr. Henry believed, with justification, that he was in danger of being attacked
by other inmates, because he was at the bottom of the prisoners’ social scale. Mr. Henry further contends that he
suffered from the inability to prove his innocence.

[454] The functional approach referred to in the trilogy discussed by Cory J. in Hill refers to the calculation of
damages to notionally put the victim (in that case, a quadriplegic) "functionally" back in the condition he was in
prior to his accident; for example, by providing attendant care, a wheelchair, and a wheelchair accessible house,
communication technology, and other assistance. In Hill, it was possible to specifically calculate the amount of
money needed to help with functions that the plaintiff had lost. Mr. Henry contends that a conventionally
determined award based on the functional approach cannot be used in his case because has not lost any
"function", but can never be put back to his pre-jailed state.

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[455] I do not agree that this distinction precludes the application of a functional approach. A quadriplegic
cannot be returned to his or her pre-injury state any more or less than Mr. Henry can be returned to his pre-jailed
state, but such an individual’s damages must nonetheless be assessed using this functional approach, at least
insofar as the compensation criterion discussed in Ward is concerned.

[456] I accept Mr. Henry’s description of himself as a typical product of an impoverished, dysfunctional,
unsupervised and abusive family devoid of caring or love and exposed to bouts of indiscriminate violence.

[457] I also accept his submission that he was in and out of foster homes for years, having first asked the
Ministry to place him in one so he could escape his life at home. I accept that Mr. Henry was out on the streets
trying to survive at an early age, getting money to live on wherever he could, usually by stealing, which
eventually led to jail, generally not for long periods of time, but frequently.

[458] At the time of his convictions for the offences for which he was later acquitted by the Court of Appeal,
Mr. Henry had recently served 40 months in jail, having been released in May 1980 with no money, no job,
limited job skills, a long prison record, and limited support from his family. His parole officer, Mr. Phillipson,
initially gave Mr. Henry little chance of getting through his mandatory parole without incident, and as
Mr. Phillipson later said, Mr. Henry "deserved a great deal of credit" for this surprising accomplishment.

[459] As noted at page 67 of the Sophonow Inquiry Report, people like Mr. Henry:
…are the most vulnerable to state actors - least able to protect and care for themselves. They should not be
hastily set aside as unworthy of consideration. His criminal record and work record arose from his
unfortunate childhood and immaturity. He simply did not have the opportunity to learn and mature as do
most young men.

[460] As I have mentioned previously, the Province contends that if Mr. Henry had not been incarcerated for
the offences of which he was later acquitted by the Court of Appeal, he would likely have reoffended in some
other way. I do not accept Mr. Henry’s submission that this argument is not open to the Province because, as he
contended, “it was their wrongful conduct in imprisoning him that prevented him from proving he would not
have re-offended”.

[461] That said, I also do not accept that if Mr. Henry had not been convicted of the charges for which the
Court of Appeal directed acquittals, his periods of incarceration for other offences would have been as
unpleasant as the period of time that he spent incarcerated as a serial sexual offender.

[462] Mr. Henry urges the application of the settlements by other governments and other wrongfully convicted
individuals in the assessment of his damages for the second and third criteria discussed in Ward. While
settlements between private litigants are of dubious assistance in the assessment of damages at trial, the amounts
paid by governments to settle claims that might be subsumed under the rubric of “wrongful convictions” are of
considerably greater assistance, as the factors that are applied in reaching settlement figures by governments are
more principled and informed.

[463] For its part, the Province adverts to Chief Justice McLachlin’s admonition in Ward to take into account
the need to avoid diverting large sums of funds from public programs to private interests. While the Province’s
budget has recently been tabled for the present year, I heard no evidence in the trial of this matter that would
permit me to assess the amount beyond which an award in this case could begin to threaten public funding.

[464] As mentioned above, Mr. Truscott’s ex gratia payment was based upon $250,000 per year for the 10
years he spent in jail and $100,000 per year for 40 years he spent on parole. If this formula were applied to
Mr. Henry, it would result in an award of $6.75 million for his roughly 27 years in custody.

[465] The largest Canadian settlement figure for wrongful conviction and subsequent incarceration on the
evidence before me is the $10 million paid to Mr. Milgaard. As I have stated above, he was convicted of sexual

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assault and murder in 1970 and served 22 years, two months and one day in custody. His settlement figure
included of the sum of $750,000 to his mother.

[466] Mr. Milgaard was just 17 years old when he was wrongfully convicted. He had a juvenile criminal
record, but none of the offences for which he was convicted alleged violent or physical behaviour. In contrast,
Mr. Henry was 36 years old when he was convicted in 1983, and had a more serious and extensive criminal
record, including a conviction for assault and attempted rape.
[467] Bearing in mind the direction of Chief Justice McLachlin in Ward that just as private law damages must
be fair to both the plaintiff and the defendant, so s. 24(1) damages must be fair -- or "appropriate and just" --
to both the claimant and the state, and weighing the social burden of a large award to Mr. Henry against his
suffering and loss of amenities, I find that an appropriate award to vindicate the violation of Mr. Henry’s
Charter rights is the sum of $7.5 million.

E. Deterrence of Future Breaches

[468] As I have already indicated above, the occasions where the Canadian criminal justice system sees a
wrongful conviction and incarceration must be rare, and the need to deter the conduct that might lead to such
results is thus limited. Adverting back to the comments of Mr. Cory in the Sophonow Inquiry which I have
adopted above, “if Crown Counsel, Defence Counsel and the Judiciary fulfill their demanding roles our system
should work effectively”.

[469] Given the compensation that I have determined is appropriate to vindicate the breach of Mr. Henry’s
Charter rights, I have concluded that a further award to deter future such breaches is unnecessary and would
duplicate the compensation I have assessed for the vindication of his rights, and constitute double recovery. I
therefore decline to award separate damages under this criterion.

COSTS

[470] Mr. Henry argues that he should be entitled to an award of solicitor and own client costs.

[471] I consider that the remaining parties should have the opportunity to make submissions as to an
appropriate order for costs in light of these reasons for judgment, and invite counsel for Mr. Henry to provide me
with submissions on his behalf within two weeks of the date of these reasons for judgment. Counsel for the
Province will provide the Province’s submissions within the two weeks thereafter, and Mr. Henry will then have
one week for any submissions in reply that he wishes to make.

SUMMARY

[472] In summary, I make the following findings:

a) Mr. Henry’s allegation that Crown Counsel breached his Charter rights by applying to dismiss his
conviction and sentence appeals for want of prosecution at too early a stage without properly
advising the Court of Appeal of certain matters is dismissed.

b) However, Crown Counsel failed in its duty of disclosure to Mr. Henry by intentionally withholding
from him relevant information that the Crown had in its possession prior to his 1983 trial.

c) Crown Counsel withheld this information despite repeated requests by Mr. Henry and his counsel for
full disclosure.

d) Crown Counsel knew or ought reasonably to have known that the information it intentionally
withheld from Mr. Henry was material to the defence, and that the failure to disclose it would likely
impinge on Mr. Henry’s ability to make full answer and defence. Much of the evidence that the
Crown wrongfully withheld was damaging to its case against Mr. Henry.

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e) Crown Counsel’s decisions to withhold material information from Mr. Henry were not validated by
judicial imprimatur.

f) Crown Counsel’s wrongful non-disclosure seriously infringed Mr. Henry’s right to a fair trial, and
demonstrates a shocking disregard for his rights under ss. 7 and 11(d) of the Charter.

g) If Mr. Henry had received the disclosure to which he was entitled, the likely result would have been
his acquittal at his 1983 trial, and certainly the avoidance of his sentencing as dangerous offender.
The Province is therefore liable for Mr. Henry’s wrongful conviction and subsequent lengthy period
of incarceration.

h) Mr. Henry is not responsible in whole or in part for his losses on the basis of contributory negligence
or failure to mitigate.

i) Crown Counsel’s failure to disclose the information to which Mr. Henry was entitled negates any
fault on the part of the VPD for any failings that might be attributed to them in their investigation of
the offences at issue and in their treatment of Mr. Henry.

j) The Province has not discharged its burden of establishing fault on the part of the Federal Crown.
The evidence before me falls short of establishing that the Federal Crown failed to conduct a
meaningful review of Mr. Henry’s applications for mercy or that the Federal Crown behaved
recklessly or in bad faith.

k) An award of damages under s. 24(1) of the Charter is a just and appropriate remedy in this case.

[473] As for the relief sought by Mr. Henry, I make the following findings:

a) Mr. Henry’s claim on behalf of his daughters for emotional distress and loss of guidance is dismissed.

b) Any non-pecuniary award to which Mr. Henry would be entitled is subsumed under the damages
awarded for the vindication of his Charter rights and the deterrence of future breaches.

c) Mr. Henry is entitled to the following relief:

i. compensatory damages in the amount of $530,000 under s. 24(1) of the Charter;

ii. special damages in the amount of $56,691.80; and

iii. damages in the amount of $7,500,000 to serve both the vindication and deterrence functions of
s. 24(1) of the Charter.

Total: $8,086,691.80

“The Honourable Chief Justice Hinkson”

Federation of Law Societies of Canada

By for the law societies members of the

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 428

Canada (Prime Minister) v. Khadr

[2010] 1 SCR 44, 2010 SCC 3

(CanLII)
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Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44, 2010 SCC 3

(CanLII)

Date: 2010-01-29
File 33289
number:
Other 315 DLR (4th) 1; 397 NR 294; [2010] EXP 424; 251 CCC (3d) 435; 71 CR (6th) 201; 206 CRR (2d) 1;
citations: [2010] CarswellNat 121; EYB 2010-168789; JE 2010-219; [2010] SCJ No 3 (QL); [2010] ACS no 3
Citation: Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44, 2010 SCC 3 (CanLII), <http://canlii.ca/t/27qn6>,
retrieved on 2019-01-06

SUPREME COURT OF CANADA

CITATION: Canada (Prime Minister) v. Khadr, 2010 SCC 3, DATE: 20100129

[2010] 1 S.C.R. 44 DOCKET: 33289

BETWEEN:
Prime Minister of Canada, Minister of Foreign Affairs,
Director of the Canadian Security Intelligence Service and
Commissioner of the Royal Canadian Mounted Police
Appellants
and
Omar Ahmed Khadr
Respondent
‑ and ‑
Amnesty International (Canadian Section, English Branch),
Human Rights Watch, University of Toronto, Faculty of Law ‑ International
Human Rights Program, David Asper Centre for Constitutional Rights,
Canadian Coalition for the Rights of Children and Justice for Children and Youth,
British Columbia Civil Liberties Association, Criminal Lawyers’ Association (Ontario),
Canadian Bar Association, Lawyers Without Borders Canada,
Barreau du Québec, Groupe d’étude en droits et libertés de la Faculté
de droit de l’Université Laval, Canadian Civil Liberties Association and
National Council For the Protection of Canadians Abroad
Interveners

CORAM: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
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REASONS FOR JUDGMENT: The Court

(paras. 1 to 48)

______________________________

Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44

Prime Minister of Canada,

Minister of Foreign Affairs,
Director of the Canadian Security Intelligence Service and
Commissioner of the Royal Canadian Mounted Police Appellants

v.

Omar Ahmed Khadr Respondent

and

Amnesty International (Canadian Section, English Branch),

Human Rights Watch, University of Toronto, Faculty of Law —
International Human Rights Program,
David Asper Centre for Constitutional Rights,
Canadian Coalition for the Rights of Children,
Justice for Children and Youth,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association (Ontario),
Canadian Bar Association, Lawyers Without Borders Canada,
Barreau du Québec, Groupe d’étude en droits et
libertés de la Faculté de droit de l’Université Laval,
Canadian Civil Liberties Association and
National Council for the Protection of Canadians Abroad Interveners

Indexed as: Canada (Prime Minister) v. Khadr

2010 SCC 3

File No.: 33289.

2009: November 13; 2010: January 29.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Constitutional law — Charter of Rights — Application — Canadian citizen detained by U.S.

authorities at Guantanamo Bay — Canadian officials interviewing detainee knowing that he had been subjected
to sleep deprivation and sharing contents of interviews with U.S. authorities — Whether process in place at
Guantanamo Bay at that time violated Canada’s international human rights obligations — Whether Canadian
Charter of Rights and Freedoms applies to conduct of Canadian state officials alleged to have breached
detainee’s constitutional rights.

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Constitutional law — Charter of Rights — Right to life, liberty and security of person —
Fundamental justice — Canadian citizen detained by U.S. authorities at Guantanamo Bay — Canadian officials
interviewing detainee knowing that he had been subjected to sleep deprivation and sharing contents of
interviews with U.S. authorities — Whether conduct of Canadian officials deprived detainee of his right to
liberty and security of person — If so, whether deprivation of detainee’s right is in accordance with principles of
fundamental justice — Canadian Charter of Rights and Freedoms, s. 7.

Constitutional law — Charter of Rights — Remedy — Request for repatriation — Canadian citizen
detained by U.S. authorities at Guantanamo Bay — Canadian officials interviewing detainee knowing that he
had been subjected to sleep deprivation and sharing contents of interviews with U.S. authorities — Violation of
detainee’s right to liberty and security of person guaranteed by Canadian Charter of Rights and Freedoms —
Detainee seeking order that Canada request his repatriation from Guantanamo Bay — Whether remedy sought
is just and appropriate in circumstances — Canadian Charter of Rights and Freedoms, s. 24(1).

Courts — Jurisdiction — Crown prerogative over foreign relations — Courts’ power to review and
intervene on matters of foreign affairs to ensure constitutionality of executive action.

K, a Canadian, has been detained by the U.S. military at Guantanamo Bay, Cuba, since 2002, when
he was a minor. In 2004, he was charged with war crimes, but the U.S. trial is still pending. In 2003, agents
from two Canadian intelligence services, CSIS and DFAIT, questioned K on matters connected to the charges
pending against him, and shared the product of these interviews with U.S. authorities. In 2004, a DFAIT official
interviewed K again, with knowledge that he had been subjected by U.S. authorities to a sleep deprivation
technique, known as the “frequent flyer program”, to make him less resistant to interrogation. In 2008, in
Canada (Justice) v. Khadr (“Khadr 2008”), this Court held that the regime in place at Guantanamo Bay
constituted a clear violation of Canada’s international human rights obligations, and, under s. 7 of the Canadian
Charter of Rights and Freedoms, ordered the Canadian government to disclose to K the transcripts of the
interviews he had given to CSIS and DFAIT, which it did. After repeated requests by K that the Canadian
government seek his repatriation, the Prime Minister announced his decision not to do so. K then applied to the
Federal Court for judicial review, alleging that the decision violated his rights under s. 7 of the Charter. The
Federal Court held that under the special circumstances of this case, Canada had a duty to protect K under s. 7 of
the Charter and ordered the government to request his repatriation. The Federal Court of Appeal upheld the
order, but stated that the s. 7 breach arose from the interrogation conducted in 2004 with the knowledge that K
had been subjected to the “frequent flyer program”.

Held: The appeal should be allowed in part.

Canada actively participated in a process contrary to its international human rights obligations and
contributed to K’s ongoing detention so as to deprive him of his right to liberty and security of the person,
guaranteed by s. 7 of the Charter, not in accordance with the principles of fundamental justice. Though the
process to which K is subject has changed, his claim is based upon the same underlying series of events
considered in Khadr 2008. As held in that case, the Charter applies to the participation of Canadian officials in
a regime later found to be in violation of fundamental rights protected by international law. There is a sufficient
connection between the government’s participation in the illegal process and the deprivation of K’s liberty and
security of the person. While the U.S. is the primary source of the deprivation, it is reasonable to infer from the
uncontradicted evidence before the Court that the statements taken by Canadian officials are contributing to K’s
continued detention. The deprivation of K’s right to liberty and security of the person is not in accordance with
the principles of fundamental justice. The interrogation of a youth detained without access to counsel, to elicit
statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation
and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most
basic Canadian standards about the treatment of detained youth suspects.

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K is entitled to a remedy under s. 24(1) of the Charter. The remedy sought by K — an order that
Canada request his repatriation — is sufficiently connected to the Charter breach that occurred in 2003 and 2004
because of the continuing effect of this breach into the present and its possible effect on K’s ultimate trial.
While the government must have flexibility in deciding how its duties under the royal prerogative over foreign
relations are discharged, the executive is not exempt from constitutional scrutiny. Courts have the jurisdiction
and the duty to determine whether a prerogative power asserted by the Crown exists; if so, whether its exercise
infringes the Charter or other constitutional norms; and, where necessary, to give specific direction to the
executive branch of the government. Here, the trial judge misdirected himself in ordering the government to
request K’s repatriation, in view of the constitutional responsibility of the executive to make decisions on
matters of foreign affairs and the inconclusive state of the record. The appropriate remedy in this case is to
declare that K’s Charter rights were violated, leaving it to the government to decide how best to respond in light
of current information, its responsibility over foreign affairs, and the Charter.

Cases Cited

Applied: Canada (Justice) v. Khadr, 2008 SCC 28 (CanLII), [2008] 2 S.C.R. 125; R. v. D.B., 2008
SCC 25 (CanLII), [2008] 2 S.C.R. 3; referred to: Khadr v. Canada, 2005 FC 1076 (CanLII), [2006] 2 F.C.R.
505; R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292; United States of America v. Dynar, 1997 CanLII
359 (SCC), [1997] 2 S.C.R. 462; Rasul v. Bush, 542 U.S. 466 (2004); Hamdan v. Rumsfeld, 548 U.S. 557
(2006); Boumediene v. Bush, 128 S. Ct. 2229 (2008); Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1 (CanLII), [2002] 1 S.C.R. 3; United States of America v. Jawad, Military
Commission, September 24, 2008, online: www.defense.gov/news/Ruling%20D-008.pdf; R. v. Collins, 1987
CanLII 84 (SCC), [1987] 1 S.C.R. 265; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486;
Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 S.C.R. 3; Reference
as to the Effect of the Exercise of the Royal Prerogative of Mercy Upon Deportation Proceedings, 1933 CanLII
40 (SCC), [1933] S.C.R. 269; Black v. Canada (Prime Minister) (2001), 2001 CanLII 8537 (ON CA), 199
D.L.R. (4th) 228; Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441; Air Canada
v. British Columbia (Attorney General), 1986 CanLII 2 (SCC), [1986] 2 S.C.R. 539; Reference re Secession of
Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217; United States v. Burns, 2001 SCC 7 (CanLII), [2001] 1
S.C.R. 283; R. v. Bjelland, 2009 SCC 38 (CanLII), [2009] 2 S.C.R. 651; R. v. Regan, 2002 SCC 12 (CanLII),
[2002] 1 S.C.R. 297; Kaunda v. President of the Republic of South Africa, [2004] ZACC 5, 136 I.L.R. 452;
Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821; R. v. Gamble, 1988 CanLII 15 (SCC), [1988]
2 S.C.R. 595.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 24(1).

Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E‑22, s. 10.

Detainee Treatment Act of 2005, Pub. L. 109‑148, 119 Stat. 2739.

Military Commissions Act of 2006, Pub. L. 109‑366, 120 Stat. 2600.

Authors Cited

Canada. Security Intelligence Review Committee. CSIS’s Role in the Matter of Omar Khadr. Ottawa: The
Committee, 2009.

Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007
(loose‑leaf updated 2009, release 1).

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APPEAL from a judgment of the Federal Court of Appeal (Nadon, Evans and Sharlow JJ.A.), 2009
FCA 246 (CanLII), 310 D.L.R. (4th) 462, 393 N.R. 1, [2009] F.C.J. No. 893 (QL), 2009 CarswellNat 2364,
affirming a decision of O’Reilly J., 2009 FC 405 (CanLII), 341 F.T.R. 300, 188 C.R.R. (2d) 342, [2009] F.C.J.
No. 462 (QL), 2009 CarswellNat 1206. Appeal allowed in part.

Robert J. Frater, Doreen C. Mueller and Jeffrey G. Johnston, for the appellants.

Nathan J. Whitling and Dennis Edney, for the respondent.

Sacha R. Paul, Vanessa Gruben and Michael Bossin, for the intervener Amnesty International
(Canadian Section, English Branch).

John Norris, Brydie Bethell and Audrey Macklin, for the interveners Human Rights Watch, the
University of Toronto, Faculty of Law — International Human Rights Program and the David Asper Centre for
Constitutional Rights.

Emily Chan and Martha Mackinnon, for the interveners the Canadian Coalition for the Rights of
Children and Justice for Children and Youth.

Sujit Choudhry and Joseph J. Arvay, Q.C., for the intervener the British Columbia Civil Liberties
Association.

Brian H. Greenspan, for the intervener the Criminal Lawyers’ Association (Ontario).

Lorne Waldman and Jacqueline Swaisland, for the intervener the Canadian Bar Association.

Simon V. Potter, Pascal Paradis, Sylvie Champagne and Fannie Lafontaine, for the interveners
Lawyers Without Borders Canada, Barreau du Québec and Groupe d’étude en droits et libertés de la Faculté de
droit de l’Université Laval.

Marlys A. Edwardh, Adriel Weaver and Jessica Orkin, for the intervener the Canadian Civil Liberties
Association.

Dean Peroff, Chris MacLeod and H. Scott Fairley, for the intervener the National Council for the
Protection of Canadians Abroad.

The following is the judgment delivered by

THE COURT —

I. Introduction

[1] Omar Khadr, a Canadian citizen, has been detained by the United States government at
Guantanamo Bay, Cuba, for over seven years. The Prime Minister asks this Court to reverse the decision of the
Federal Court of Appeal requiring the Canadian government to request the United States to return Mr. Khadr
from Guantanamo Bay to Canada.

[2] For the reasons that follow, we agree with the courts below that Mr. Khadr’s rights under s. 7 of
the Canadian Charter of Rights and Freedoms were violated. However, we conclude that the order made by the
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lower courts that the government request Mr. Khadr’s return to Canada is not an appropriate remedy for that
breach under s. 24(1) of the Charter. Consistent with the separation of powers and the well-grounded reluctance
of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that
his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how
best to respond. We would therefore allow the appeal in part.

II. Background

[3] Mr. Khadr was 15 years old when he was taken prisoner on July 27, 2002, by U.S. forces in
Afghanistan. He was alleged to have thrown a grenade that killed an American soldier in the battle in which he
was captured. About three months later, he was transferred to the U.S. military installation at Guantanamo Bay.
He was placed in adult detention facilities.

[4] On September 7, 2004, Mr. Khadr was brought before a Combatant Status Review Tribunal
which affirmed a previous determination that he was an “enemy combatant”. He was subsequently charged with
war crimes and held for trial before a military commission. In light of a number of procedural delays and
setbacks, that trial is still pending.

[5] In February and September 2003, agents from the Canadian Security Intelligence Service
(“CSIS”) and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade
(“DFAIT”) questioned Mr. Khadr on matters connected to the charges pending against him and shared the
product of these interviews with U.S. authorities. In March 2004, a DFAIT official interviewed Mr. Khadr again,
with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the
“frequent flyer program”, in an effort to make him less resistant to interrogation. During this interview, Mr.
Khadr refused to answer questions. In 2005, von Finckenstein J. of the Federal Court issued an interim
injunction preventing CSIS and DFAIT agents from further interviewing Mr. Khadr in order “to prevent a
potential grave injustice” from occurring: Khadr v. Canada, 2005 FC 1076 (CanLII), [2006] 2 F.C.R. 505, at
para. 46. In 2008, this Court ordered the Canadian government to disclose to Mr. Khadr the transcripts of the
interviews he had given to CSIS and DFAIT in Guantanamo Bay, under s. 7 of the Charter: Canada (Justice) v.
Khadr, 2008 SCC 28 (CanLII), [2008] 2 S.C.R. 125 (“Khadr 2008”).

[6] Mr. Khadr has repeatedly requested that the Government of Canada ask the United States to
return him to Canada: in March 2005 during a Canadian consular visit; on December 15, 2005, when a welfare
report noted that “[Mr. Khadr] wants his government to bring him back home” (Report of Welfare Visit, Exhibit
“L” to Affidavit of Sean Robertson, December 15, 2005 (J.R., vol. IV, at p. 534)); and in a formal written request
through counsel on July 28, 2008.

[7] The Prime Minister announced his decision not to request Mr. Khadr’s repatriation on July 10,
2008, during a media interview. The Prime Minister provided the following response to a journalist’s question,
posed in French, regarding whether the government would seek repatriation:

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[TRANSLATION] The answer is no, as I said the former Government, and our Government with the
notification of the Minister of Justice had considered all these issues and the situation remains the
same. . . . We keep on looking for [assurances] of good treatment of Mr. Khadr.

(http://watch.ctv.ca/news/clip65783#clip65783, at 3’3”, referred to in Affidavit of April Bedard,

August 8, 2008 (J.R., vol. II, at pp. 131-32).)

[8] On August 8, 2008, Mr. Khadr applied to the Federal Court for judicial review of the
government’s “ongoing decision and policy” not to seek his repatriation (Notice of Application filed by the
respondent, August 8, 2008 (J.R., vol. II, at p. 113)). He alleged that the decision and policy infringed his rights
under s. 7 of the Charter, which states:

7. Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.

[9] After reviewing the history of Mr. Khadr’s detention and applicable principles of Canadian and
international law, O’Reilly J. concluded that in these special circumstances, Canada has a “duty to protect” Mr.
Khadr (2009 FC 405 (CanLII), 341 F.T.R. 300). He found that “[t]he ongoing refusal of Canada to request Mr.
Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under
s. 7 of the Charter” (para. 92). Also, he held that “[t]o mitigate the effect of that violation, Canada must present
a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable” (para. 92).

[10] The majority judgment of the Federal Court of Appeal (per Evans and Sharlow JJ.A.) upheld
O’Reilly J.’s order, but defined the s. 7 breach more narrowly. The majority of the Court of Appeal found that it
arose from the March 2004 interrogation conducted with the knowledge that Mr. Khadr had been subject to the
“frequent flyer program”, characterized by the majority as involving cruel and abusive treatment contrary to the
principles of fundamental justice: 2009 FCA 246 (CanLII), 310 D.L.R. (4th) 462. Dissenting, Nadon J.A.
reviewed the many steps the government had taken on Mr. Khadr’s behalf and held that since the Constitution
conferred jurisdiction over foreign affairs on the executive branch of government, the remedy sought was
beyond the power of the courts to grant.

III. The Issues

[11] Mr. Khadr argues that the government has breached his rights under s. 7 of the Charter, and that
the appropriate remedy for this breach is an order that the government request the United States to return him to
Canada.

[12] Mr. Khadr does not suggest that the government is obliged to request the repatriation of all
Canadian citizens held abroad in suspect circumstances. Rather, his contention is that the conduct of the
government of Canada in connection with his detention by the U.S. military in Guantanamo Bay, and in
particular Canada’s collaboration with the U.S. government in 2003 and 2004, violated his rights under the
Charter, and requires as a remedy that the government now request his return to Canada. The issues that flow
from this claim may be summarized as follows:

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A. Was There a Breach of Section 7 of the Charter?

1. Does the Charter apply to the conduct of Canadian state officials alleged to have infringed Mr.
Khadr’s s. 7 Charter rights?

2. If so, does the conduct of the Canadian government deprive Mr. Khadr of the right to life, liberty
or security of the person?

3. If so, does the deprivation accord with the principles of fundamental justice?

B. Is the Remedy Sought Appropriate and Just in All the Circumstances?

[13] We will consider each of these issues in turn.

A. Was There a Breach of Section 7 of the Charter?

1. Does the Canadian Charter Apply to the Conduct of the Canadian State Officials Alleged to
Have Infringed Mr. Khadr’s Section 7 Charter Rights?

[14] As a general rule, Canadians abroad are bound by the law of the country in which they find
themselves and cannot avail themselves of their rights under the Charter. International customary law and the
principle of comity of nations generally prevent the Charter from applying to the actions of Canadian officials
operating outside of Canada: R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, at para. 48, per LeBel J.,
citing United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 123. The
jurisprudence leaves the door open to an exception in the case of Canadian participation in activities of a foreign
state or its agents that are contrary to Canada’s international obligations or fundamental human rights norms:
Hape, at para. 52, per LeBel J.; Khadr 2008, at para. 18.

[15] The question before us, then, is whether the rule against the extraterritorial application of the
Charter prevents the Charter from applying to the actions of Canadian officials at Guantanamo Bay.

[16] This question was addressed in Khadr 2008, in which this Court held that the Charter applied
to the actions of Canadian officials operating at Guantanamo Bay who handed the fruits of their interviews over
to U.S. authorities. This Court held, at para. 26, that “the principles of international law and comity that might
otherwise preclude application of the Charter to Canadian officials acting abroad do not apply to the assistance
they gave to U.S. authorities at Guantanamo Bay”, given holdings of the Supreme Court of the United States that
the military commission regime then in place constituted a clear violation of fundamental human rights protected
by international law: see Khadr 2008, at para. 24; Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld,
548 U.S. 557 (2006). The principles of fundamental justice thus required the Canadian officials who had
interrogated Mr. Khadr to disclose to him the contents of the statements he had given them. The Canadian
government complied with this Court’s order.

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[17] We note that the regime under which Mr. Khadr is currently detained has changed significantly
in recent years. The U.S. Congress has legislated and the U.S. courts have acted with the aim of bringing the
military processes at Guantanamo Bay in line with international law. (The Detainee Treatment Act of 2005, Pub.
L. 109-148, 119 Stat. 2739, prohibited inhumane treatment of detainees and required interrogations to be
performed according to the Army field manual. The Military Commissions Act of 2006, Pub. L. 109-366, 120
Stat. 2600, attempted to legalize the Guantanamo regime after the U.S. Supreme Court’s ruling in Hamdan v.
Rumsfeld. However, on June 12, 2008, in Boumediene v. Bush, 128 S. Ct. 2229 (2008), the U.S. Supreme Court
held that Guantanamo Bay detainees have a constitutional right to habeas corpus, and struck down the
provisions of the Military Commissions Act of 2006 that suspended that right.)

[18] Though the process to which Mr. Khadr is subject has changed, his claim is based upon the
same underlying series of events at Guantanamo Bay (the interviews and evidence-sharing of 2003 and 2004)
that we considered in Khadr 2008. We are satisfied that the rationale in Khadr 2008 for applying the Charter to
the actions of Canadian officials at Guantanamo Bay governs this case as well.

2. Does the Conduct of the Canadian Government Deprive Mr. Khadr of the Right to Life, Liberty
or Security of the Person?

[19] The United States is holding Mr. Khadr for the purpose of trying him on charges of war crimes.
The United States is thus the primary source of the deprivation of Mr. Khadr’s liberty and security of the person.
However, the allegation on which his claim rests is that Canada has also contributed to his past and continuing
deprivation of liberty. To satisfy the requirements of s. 7, as stated by this Court in Suresh v. Canada (Minister
of Citizenship and Immigration), 2002 SCC 1 (CanLII), [2002] 1 S.C.R. 3, there must be “a sufficient causal
connection between [the Canadian] government’s participation and the deprivation [of liberty and security of the
person] ultimately effected” (para. 54).

[20] The record suggests that the interviews conducted by CSIS and DFAIT provided significant
evidence in relation to these charges. During the February and September 2003 interrogations, CSIS officials
repeatedly questioned Mr. Khadr about the central events at issue in his prosecution, extracting statements from
him that could potentially prove inculpatory in the U.S. proceedings against him (CSIS Document, Exhibit “U”
to Affidavit of Lt. Cdr. William Kuebler, November 7, 2003 (J.R., vol. II, at p. 280); Interview Summary, Exhibit
“AA” to Affidavit of Lt. Cdr. William Kuebler, February 24, 2003 (J.R., vol. III, at p. 289); Interview Summary,
Exhibit “BB” to Affidavit of Lt. Cdr. William Kuebler, February 17, 2003 (J.R., vol. III, at p. 292); Interview
Summary, Exhibit “DD” to Affidavit of Lt. Cdr. William Kuebler, April 20, 2004 (J.R., vol. III, at p. 296)). A
report of the Security Intelligence Review Committee titled CSIS’s Role in the Matter of Omar Khadr (July 8,
2009), further indicated that CSIS assessed the interrogations of Mr. Khadr as being “highly successful, as
evidenced by the quality intelligence information” elicited from Mr. Khadr (p. 13). These statements were
shared with U.S. authorities and were summarized in U.S. investigative reports (Report of Investigative Activity,
Exhibit “AA” to Affidavit of Lt. Cdr. William Kuebler, February 24, 2003 (J.R., vol. III, at pp. 289 ff.)).
Pursuant to the relaxed rules of evidence under the U.S. Military Commissions Act of 2006, Mr. Khadr’s
statements to Canadian officials are potentially admissible against him in the U.S. proceedings, notwithstanding
the oppressive circumstances under which they were obtained: see United States of America v. Jawad, Military
Commission, September 24, 2008, D-008 Ruling on Defense Motion to Dismiss — Torture of the Detainee
(online: http://www.defense.gov/news/Ruling%20D‑008.pdf). The above interrogations also provided the
context for the March 2004 interrogation, when a DFAIT official, knowing that Mr. Khadr had been subjected to
the “frequent flyer program” to make him less resistant to interrogations, nevertheless proceeded with the

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interrogation of Mr. Khadr (Interview Summary, Exhibit “DD” to Affidavit of Lt. Cdr. William Kuebler, April
20, 2004 (J.R., vol. III, at p. 296)).

[21] An applicant for a Charter remedy must prove a Charter violation on a balance of probabilities
(R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 277). It is reasonable to infer from the
uncontradicted evidence before us that the statements taken by Canadian officials are contributing to the
continued detention of Mr. Khadr, thereby impacting his liberty and security interests. In the absence of any
evidence to the contrary (or disclaimer rebutting this inference), we conclude on the record before us that
Canada’s active participation in what was at the time an illegal regime has contributed and continues to
contribute to Mr. Khadr’s current detention, which is the subject of his current claim. The causal connection
demanded by Suresh between Canadian conduct and the deprivation of liberty and security of person is
established.

3. Does the Deprivation Accord With the Principles of Fundamental Justice?

[22] We have concluded that the conduct of the Canadian government is sufficiently connected to
the denial of Mr. Khadr’s liberty and security of the person. This alone, however, does not establish a breach of
Mr. Khadr’s s. 7 rights under the Charter. To establish a breach, Mr. Khadr must show that this deprivation is
not in accordance with the principles of fundamental justice.

[23] The principles of fundamental justice “are to be found in the basic tenets of our legal system”:
Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 503. They are informed by
Canadian experience and jurisprudence, and take into account Canada’s obligations and values, as expressed in
the various sources of international human rights law by which Canada is bound. In R. v. D.B., 2008 SCC 25
(CanLII), [2008] 2 S.C.R. 3, at para. 46, the Court (Abella J. for the majority) restated the criteria for identifying
a new principle of fundamental justice in the following manner:

(1) It must be a legal principle.

(2) There must be a consensus that the rule or principle is fundamental to the way in which the
legal system ought fairly to operate.

(3) It must be identified with sufficient precision to yield a manageable standard against which to
measure deprivations of life, liberty or security of the person.

[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the
principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and
DFAIT were obtained through participation in a regime which was known at the time to have refused detainees
the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was
16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in
mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo
Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23-25; Hamdan v.
Rumsfeld). In conducting their interviews, CSIS officials had control over the questions asked and the subject
matter of the interviews (Transcript of cross-examination on Affidavit of Mr. Hooper, Exhibit “GG” to Affidavit
of Lt. Cdr. William Kuebler, March 2, 2005 (J.R., vol. III, p. 313, at p. 22)). Canadian officials also knew that
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the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no
restrictions on their use) by virtue of their audio and video recording (CSIS’s Role in the Matter of Omar Khadr,
at pp. 11-12). The purpose of the interviews was for intelligence gathering and not criminal investigation.
While in some contexts there may be an important distinction between those interviews conducted for the
purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its
significance. Canadian officials questioned Mr. Khadr on matters that may have provided important evidence
relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely
detained, was a young person and was alone during the interrogations. Further, the March 2004 interview, where
Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three
weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as
designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).

[25] This conduct establishes Canadian participation in state conduct that violates the principles of
fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while
detained in these conditions and without access to counsel, and while knowing that the fruits of the
interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the
treatment of detained youth suspects.

[26] We conclude that Mr. Khadr has established that Canada violated his rights under s. 7 of the
Charter.

B. Is the Remedy Sought Appropriate and Just in All the Circumstances?

[27] In previous proceedings (Khadr 2008), Mr. Khadr obtained the remedy of disclosure of the
material gathered by Canadian officials against him through the interviews at Guantanamo Bay. The issue on
this appeal is whether the breach of s. 7 of the Charter entitles Mr. Khadr to the remedy of an order that Canada
request of the United States that he be returned to Canada. Two questions arise at this stage: (1) Is the remedy
sought sufficiently connected to the breach? and (2) Is the remedy sought precluded by the fact that it touches on
the Crown prerogative power over foreign affairs?

[28] The judge at first instance held that the remedy sought was open to him. The Federal Court of
Appeal held that he did not abuse his remedial discretion. On the basis of our answer to the second of the
foregoing questions, we conclude that the trial judge, on the record before us, erred in the exercise of his
discretion in granting the remedy sought.

[29] First, is the remedy sought sufficiently connected to the breach? We have concluded that the
Canadian government breached Mr. Khadr’s s. 7 rights in 2003 and 2004 through its participation in the then-
illegal military regime at Guantanamo Bay. The question at this point is whether the remedy now being sought
— an order that the Canadian government ask the United States to return Mr. Khadr to Canada — is appropriate
and just in the circumstances.

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[30] An appropriate and just remedy is “one that meaningfully vindicates the rights and freedoms of
the claimants”: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3
S.C.R. 3, at para. 55. The first hurdle facing Mr. Khadr, therefore, is to establish a sufficient connection between
the breaches of s. 7 that occurred in 2003 and 2004 and the order sought in these judicial review proceedings. In
our view, the sufficiency of this connection is established by the continuing effect of these breaches into the
present. Mr. Khadr’s Charter rights were breached when Canadian officials contributed to his detention by
virtue of their interrogations at Guantanamo Bay knowing Mr. Khadr was a youth, did not have access to legal
counsel or habeas corpus at that time and, at the time of the interview in March 2004, had been subjected to
improper treatment by the U.S. authorities. As the information obtained by Canadian officials during the course
of their interrogations may be used in the U.S. proceedings against Mr. Khadr, the effect of the breaches cannot
be said to have been spent. It continues to this day. As discussed earlier, the material that Canadian officials
gathered and turned over to the U.S. military authorities may form part of the case upon which he is currently
being held. The evidence before us suggests that the material produced was relevant and useful. There has been
no suggestion that it does not form part of the case against Mr. Khadr or that it will not be put forward at his
ultimate trial. We therefore find that the breach of Mr. Khadr’s s. 7 Charter rights remains ongoing and that the
remedy sought could potentially vindicate those rights.

[31] The acts that perpetrated the Charter breaches relied on in this appeal lie in the past. But their
impact on Mr. Khadr’s liberty and security continue to this day and may redound into the future. The impact of
the breaches is thus perpetuated into the present. When past acts violate present liberties, a present remedy may
be required.

[32] We conclude that the necessary connection between the breaches of s. 7 and the remedy sought
has been established for the purpose of these judicial review proceedings.

[33] Second, is the remedy sought precluded by the fact that it touches on the Crown prerogative
over foreign affairs? A connection between the remedy and the breach is not the only consideration. As stated
in Doucet-Boudreau, an appropriate and just remedy is also one that “must employ means that are legitimate
within the framework of our constitutional democracy” (para. 56) and must be a “judicial one which vindicates
the right while invoking the function and powers of a court” (para. 57). The government argues that courts have
no power under the Constitution of Canada to require the executive branch of government to do anything in the
area of foreign policy. It submits that the decision not to request the repatriation of Mr. Khadr falls directly
within the prerogative powers of the Crown to conduct foreign relations, including the right to speak freely with
a foreign state on all such matters: P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 1‑19.

[34] The prerogative power is the “residue of discretionary or arbitrary authority, which at any given
time is legally left in the hands of the Crown”: Reference as to the Effect of the Exercise of the Royal Prerogative
of Mercy Upon Deportation Proceedings, 1933 CanLII 40 (SCC), [1933] S.C.R. 269, at p. 272, per Duff C.J.,
quoting A. V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed. 1915), at p. 420. It is a
limited source of non‑statutory administrative power accorded by the common law to the Crown: Hogg, at p. 1-
17.

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[35] The prerogative power over foreign affairs has not been displaced by s. 10 of the Department of
Foreign Affairs and International Trade Act, R.S.C. 1985, c. E‑22, and continues to be exercised by the federal
government. The Crown prerogative in foreign affairs includes the making of representations to a foreign
government: Black v. Canada (Prime Minister) (2001), 2001 CanLII 8537 (ON CA), 199 D.L.R. (4th) 228 (Ont.
C.A.). We therefore agree with O’Reilly J.’s implicit finding (paras. 39, 40 and 49) that the decision not to
request Mr. Khadr’s repatriation was made in the exercise of the prerogative over foreign relations.

[36] In exercising its common law powers under the royal prerogative, the executive is not exempt
from constitutional scrutiny: Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441. It
is for the executive and not the courts to decide whether and how to exercise its powers, but the courts clearly
have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown does in fact
exist and, if so, whether its exercise infringes the Charter (Operation Dismantle) or other constitutional norms
(Air Canada v. British Columbia (Attorney General), 1986 CanLII 2 (SCC), [1986] 2 S.C.R. 539).

[37] The limited power of the courts to review exercises of the prerogative power for
constitutionality reflects the fact that in a constitutional democracy, all government power must be exercised in
accordance with the Constitution. This said, judicial review of the exercise of the prerogative power for
constitutionality remains sensitive to the fact that the executive branch of government is responsible for
decisions under this power, and that the executive is better placed to make such decisions within a range of
constitutional options. The government must have flexibility in deciding how its duties under the power are to be
discharged: see, e.g., Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at paras.
101-2. But it is for the courts to determine the legal and constitutional limits within which such decisions are to
be taken. It follows that in the case of refusal by a government to abide by constitutional constraints, courts are
empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance
with the constitution: United States v. Burns, 2001 SCC 7 (CanLII), [2001] 1 S.C.R. 283.

[38] Having concluded that the courts possess a narrow power to review and intervene on matters of
foreign affairs to ensure the constitutionality of executive action, the final question is whether O’Reilly J.
misdirected himself in exercising that power in the circumstances of this case (R. v. Bjelland, 2009 SCC 38
(CanLII), [2009] 2 S.C.R. 651, at para. 15; R. v. Regan, 2002 SCC 12 (CanLII), [2002] 1 S.C.R. 297, at paras.
117‑18). (In fairness to the trial judge, we note that the government proposed no alternative (trial judge’s
reasons, at para. 78).) If the record and legal principle support his decision, deference requires we not interfere.
However, in our view that is not the case.

[39] Our first concern is that the remedy ordered below gives too little weight to the constitutional
responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and
ever-changing circumstances, taking into account Canada’s broader national interests. For the following reasons,
we conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr.
Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of
current information, its responsibility for foreign affairs, and in conformity with the Charter.

[40] As discussed, the conduct of foreign affairs lies with the executive branch of government. The
courts, however, are charged with adjudicating the claims of individuals who claim that their Charter rights have
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been or will be violated by the exercise of the government’s discretionary powers: Operation Dismantle.

[41] In some situations, courts may give specific directions to the executive branch of the
government on matters touching foreign policy. For example, in Burns, the Court held that it would offend s. 7
to extradite a fugitive from Canada without seeking and obtaining assurances from the requesting state that the
death penalty would not be imposed. The Court gave due weight to the fact that seeking and obtaining those
assurances were matters of Canadian foreign relations. Nevertheless, it ordered that the government seek them.

[42] The specific facts in Burns justified a more specific remedy. The fugitives were under the
control of Canadian officials. It was clear that assurances would provide effective protection against the
prospective Charter breaches: it was entirely within Canada’s power to protect the fugitives against possible
execution. Moreover, the Court noted that no public purpose would be served by extradition without assurances
that would not be substantially served by extradition with assurances, and that there was nothing to suggest that
seeking such assurances would undermine Canada’s good relations with other states: Burns, at paras. 125 and
136.

[43] The present case differs from Burns. Mr. Khadr is not under the control of the Canadian
government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian
foreign relations of a repatriation request cannot be properly assessed by the Court.

[44] This brings us to our second concern: the inadequacy of the record. The record before us gives
a necessarily incomplete picture of the range of considerations currently faced by the government in assessing
Mr. Khadr’s request. We do not know what negotiations may have taken place, or will take place, between the
U.S. and Canadian governments over the fate of Mr. Khadr. As observed by Chaskalson C.J. in Kaunda v.
President of the Republic of South Africa, [2004] ZACC 5, 136 I.L.R. 452, at para. 77: “The timing of
representations if they are to be made, the language in which they should be couched, and the sanctions (if any)
which should follow if such representations are rejected are matters with which courts are ill-equipped to deal.”
It follows that in these circumstances, it would not be appropriate for the Court to give direction as to the
diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.

[45] Though Mr. Khadr has not been moved from Guantanamo Bay in over seven years, his legal
predicament continues to evolve. During the hearing of this appeal, we were advised by counsel that the U.S.
Department of Justice had decided that Mr. Khadr will continue to face trial by military commission, though
other Guantanamo detainees will now be tried in a federal court in New York. How this latest development will
affect Mr. Khadr’s situation and any ongoing negotiations between the United States and Canada over his
possible repatriation is unknown. But it signals caution in the exercise of the Court’s remedial jurisdiction.

[46] In this case, the evidentiary uncertainties, the limitations of the Court’s institutional competence,
and the need to respect the prerogative powers of the executive, lead us to conclude that the proper remedy is
declaratory relief. A declaration of unconstitutionality is a discretionary remedy: Operation Dismantle, at p. 481,
citing Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821. It has been recognized by this Court as
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“an effective and flexible remedy for the settlement of real disputes”: R. v. Gamble, 1988 CanLII 15 (SCC),
[1988] 2 S.C.R. 595, at p. 649. A court can properly issue a declaratory remedy so long as it has the jurisdiction
over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real
interest to raise it. Such is the case here.

[47] The prudent course at this point, respectful of the responsibilities of the executive and the
courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration
advising the government of its opinion on the records before it which, in turn, will provide the legal framework
for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in
conformity with the Charter.

IV. Conclusion

[48] The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part.
This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004,
as established on the evidence before us, Canada actively participated in a process contrary to Canada’s
international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of
his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of
fundamental justice. Costs are awarded to Mr. Khadr.

Appeal allowed in part with costs to the respondent.

Solicitor for the appellants: Department of Justice, Ottawa.

Solicitors for the respondent: Parlee McLaws, Edmonton.

Solicitors for the intervener Amnesty International (Canadian Section, English Branch): Thompson
Dorfman Sweatman, Winnipeg.

Solicitors for the interveners Human Rights Watch, the University of Toronto, Faculty of Law —
International Human Rights Program and the David Asper Centre for Constitutional Rights: John Norris,
Brydie Bethell and Audrey Macklin, Toronto.

Solicitor for the interveners the Canadian Coalition for the Rights of Children and Justice for
Children and Youth: Justice for Children and Youth Services, Toronto.

Solicitors for the intervener the British Columbia Civil Liberties Association: Arvay Finlay,
Vancouver.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Greenspan Humphrey
Lavine, Toronto.

Solicitors for the intervener the Canadian Bar Association: Waldman & Associates, Toronto.

Solicitors for the interveners Lawyers Without Borders Canada, Barreau du Québec and Groupe
d’étude en droits et libertés de la Faculté de droit de l’Université Laval: McCarthy Tétrault, Montréal.

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Solicitors for the intervener the Canadian Civil Liberties Association: Marlys Edwardh Barristers
Professional Corporation, Toronto.

Solicitors for the intervener the National Council for the Protection of Canadians Abroad: Theall
Group, Toronto; Amsterdam & Peroff, Toronto.

Federation of Law Societies of Canada

By for the law societies members of the

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