80 PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION#45414395 HER MAJESTY THE QUEEN and Carl Gerald Alexander Lathlin Ruling on Section Charter Application (Non-Disclosure) S.C. Carter, P.C.J J. Syrnick, CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. G. Bendig, BENDIG LAW OFFICE, Prince Albert, SK. FOR THE DEFENCE. Introduction 1. The accused is charged with committing number of break and enters of homes in Prince Albert, Saskatchewan. He pleaded guilty to many of these but denied involvement in three of them. The trial on those three charges began on April 29, 2003. After hearing evidence from the home owners, co-accused, and peace officers who investigated the incidents, the Crown advised the court of its intention to call one Ace Carlos Whitecap to the witness box. He had been subpoenaed by the Crown and, unknown to the prosecution, had been sitting in court listening to the other Crown witnesses. Defence counsel objected on this basis but he also argued that the Crown had ambushed him and his client. He said that the Crown had not disclosed their intention to call this witness and that they should not be permitted to do so. In addition, Ace Carlos Whitecap is also a client of Mr. Bendig’s and he would not be able to cross-examine Whitecap effectively or at all. He argued that if the Crown had informed him of its intention to call Whitecap to give evidence arrangements could have been made for other counsel to either take over the entire defence or, at the very least, sit in during the trial in order to effectively cross-examine this witness. 2. Crown counsel, Mr. John Syrnick, argued that although his specific intention to call Whitecap had not been disclosed to the defence, Whitecap was mentioned throughout the disclosure as co-accused and that calling him to the witness box should not be surprise to the defence. (1) Has there been failure to disclose on the part of the Crown? (2) If so, has the defence established, on balance of probabilities, that the impunged non-disclosure has prejudiced or had an adverse effect on the accused’s ability to make full answer in defence? (R.v. O’Connor, (1995), 1995 CanLII 51 (SCC), 44 C.R. (4th) (S.C.C.)). (3) If so, what is the appropriate remedy? 3. Since 1991 the Supreme Court of Canada has required full and meaningful disclosure from the Crown. The obligation to disclose is triggered by request by or on behalf of the accused which may be made at any time after the charge is laid. Compliance must be made by the Crown so that the accused has sufficient time to consider the evidence and the Crown’s case before election or plea. The Crown’s obligation to disclose is continuing one: R.v. Stinchombe, (No. 1), 1991 CanLII 45 (SCC), [1991] S.C.R. 326. 4. When determining remedy for non-disclosure the Supreme Court has held that entering stay of proceedings is last resort to be taken only when all other acceptable avenues of protecting the accused’s right to full answer and defence are exhausted. R.v. O’Connor, (supra). 5. In fashioning an appropriate remedy the court must take into account all aspects of the failure to make full disclosure. This includes the nature of the charge, delay, adjournments to date and at who’s request, the nature of the evidence not disclosed and the Crown’s explanation for the omission. The point in time at which failure to disclose occurs will impact on the relief. If at the beginning of trial, an adjournment may be appropriate. If on the 10th day of jury trial, there may be exclusion of evidence or the calling of witness may be precluded. In every case, the Crown should not be advantaged by its failure to disclose: R.v. Haynes, (1993), 1993 CanLII 4431 (NS SC), 125, N.S.R. (2nd), 161, S.C.); affirmed (1994), M.V.R. (3d), 317 (N.S.C.A.). (1) Has there been failure to disclose on the part of the Crown? 6. In my view there has been a failure to disclose. All sorts of people may be mentioned in police reports. Various people may be charged jointly or severally with the same offences. The accused should not have to guess whom the Crown is going to call to give evidence against him. Many people may be potential witnesses but the accused is entitled to prepare his defence on the basis of the witnesses the Crown is actually going to call to the witness box. In my view it is not good enough to simply say that Mr. Whitecap’s name was mentioned as co-accused in the disclosure given to defence. (2) Has the defence established, on a balance of probabilities, that the impunged non-disclosure has prejudiced or had an adverse effect on the accused’s ability to make full answer and defence? 7. In my view the defence has met this test. The prejudice to the accused’s right to make full answer and defence flows from not being told that Ace Carlos Whitecap would be a Crown witness. Had the defence been informed of this intention, defence counsel would then have been able to take the appropriate steps to properly protect the interests of both Whitecap and Lathlin. He cannot cross-examine his own client but Whitecap must be cross-examined if he is called to give evidence. Effective cross-examination is based upon proper preparation and is often based upon other evidence given by other witnesses in the trial quite apart from what they may have said or not said in statements or can-say sheets. The Crown’s failure to disclose his intention to call Whitecap as witness has, in my view, seriously damaged the accused’s right to effective representation with respect to the cross-examination of this witness. (3) What is the appropriate remedy? 8. stay of proceedings is out of the question. The accused’s right to full answer and defence has been prejudiced only with respect to the cross-examination of Whitecap. However, requiring another lawyer to step in to cross-examine the witness would not be appropriate. At the very least the other lawyer would have to sit through the examination-in-chief. That lawyer should have sat through the entire Crown case in order to be as effective as possible in the cross-examination. Indeed that lawyer might have had to have taken over the case entirely in order to be sure to protect the interests of both Mr. Whitecap and Mr. Lathlin. In my view, the only appropriate remedy is to refuse to allow the Crown to call this witness. 9. The Crown will not be permitted to call Ace Carlos Whitecap to give evidence in this trial. DATED this 26th day of May, A.D., 2003, at the City of Prince Albert, in the Province of Saskatchewan. S.C. Carter, Provincial Court Judge
The accused was charged with a number of break and enters. After hearing evidence, the Crown advised the Court that it intended to call 'Ace' to the stand. Ace had been subpoenaed and had been sitting in the Court listening to other Crown witnesses. Defence counsel objected and claimed the Crown had not disclosed this witness. Ace was also a client of defence counsel and so defence counsel would not be able to cross-examine Ace. HELD: The Crown failed to provide proper disclosure to defence counsel, the non-disclosure had an adverse effect of the accused's ability to make full answer in defence and the appropriate remedy was to refuse to allow the Crown to call Ace as a witness.