The Defence Toolkit – January 19, 2019

This week’s top three summaries include: R v Prystay, 2019 ABQB 8, R v Ostrowski, 2018 MBCA 331, R v Jiang, 2018 ONCA 1081.

R v Prystay (ABQB)

[January 4, 2019] – Charter s. 12 Cruel and Unusual Punishment – 3.5 to 1 Credit for Pre-Trial Custody spent in Administrative Segregation – 2019 ABQB 8 (Justice Dawn Pentelechuk)

AUTHOR’S NOTE: In what can only be described as a throwing down of the gauntlet, Justice Pentelechuk, wrote a scathing judgement denouncing a lack of justice and accountability in the use of administrative segregation in this matter and plausibly the remand system in Alberta.  Relying on British Columbia Civil Liberties Association v Canada (Attorney General) (BCCL) and R v Boudrault, she found a significant s.12 violation when the Mr. Prystay was subjected to what appeared to function like indefinite administrative segregation.  The result is a significant decrease in sentence and a precedent for use in other cases for defence counsel.  Ultimately, this was a case where even the system that existed failed to reach meaningful decisions about Mr. Prystay’s continued segregation, but significant questions are raised herein about whether the system that presently exists is sufficient to meet s.12 standards. Counsel can now invoke this case to seek 3.5 to 1 credit for their clients.

Pertinent Facts

Mr. Prystay pled guilty to a number of serious offences including possession of a loaded illegal firearm contrary to s.95 of the Criminal Code and Flight from police. (Para 1)

“Following his arrest on August 2, 2016, Prystay was placed in the Edmonton Remand Center (ERC), where he remained for the next 28 ½ months.” (Para 2)

“On March 30, 2017, following an assault on another inmate, Prystay was placed in administrative segregation (AS), remaining there until May 15, 2018, a total period of 13 ½ months.” (Para 3)

“While not challenging his initial placement in AS, Prystay alleges a breach of his s 7 and s 12 Charter rights for his indefinite placement in AS and seeks a stay of proceedings or a sentence reduction under s 24(1) of the Charter.” (Para 4)

Section 12: Cruel and Unusual Punishment – The Test

“The threshold is high. To establish a s 12 breach, treatment cannot be merely disproportionate or excessive. It must be “abhorrent or intolerable” or “outrage standards of decency.” The test was recently summarized by the Supreme Court of Canada in R v Boudreault, 2018 SCC 58 at para 126:

This Court has recognized that treatment or punishment will rise to the level of being cruel and unusual where it “is so excessive as to outrage standards of decency” (R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072, citing Miller v. The Queen, [1977] 2 S.C.R. 680). In R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, McLachlin C.J. explained that a sentence will offend s. 12 only where it is “grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender” (para. 39). It is therefore not sufficient that a sentence be “merely excessive”; to be cruel and unusual, it must be disproportionate to the point of being “abhorrent or intolerable”, such that it is incompatible with human dignity (R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 24; Smith, at p. 1072; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26).” (Para 12)

Citing R v Smith, [1987] 1 SCR 1045: “While adopting these same considerations, McIntyre J, in dissent, synthesized them into three main considerations and concluded a punishment will be cruel and unusual and in violation of s 12 if it has any one or more of the following characteristics:

1) the punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity;

2) the punishment goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives; or

3) the punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance brings with ascertained or ascertainable standards.” (Para 14)

“None of these considerations are required parts of a rigid test and no single fact determines the outcome: Boudreault at para 48.” (Para 15)

Application to Mr. Prystay’s Circumstances

“I conclude Mr. Prystay’s placement in administrative segregation constitutes cruel and unusual punishment for the following reasons: the excessive length of his placement (13.5 months); the adverse effects AS had on his physical and psychological health; and finally, because Prystay was not afforded procedural fairness and his indefinite placement was not imposed in accordance with ascertainable standards.” (Para 17)

“While any time served in remand is considered “hard time,” time served in disciplinary or administrative segregation is particularly oppressive. It is defined by severe restrictions placed on an inmate’s mobility, activity and meaningful human contact.” (Para 26)

“Inmates in either form of segregation are confined to their cell for 23 hours a day. Most are in single cells. They have two half-hour blocks outside of their cell during each 24 hour period. If an inmate is designated a cleaner for the unit, they may have an additional one to two hours outside their cell. Movement is strictly controlled. ERC staff are separated from the inmates by a steel and glass wall.” (Para 28)

“Those in segregation have no access to an outdoor courtyard or an exercise room, only a 10 by 20 foot “fresh air room”. The room has a two by three foot barred and screened window. Access to fresh air is a seasonal concept, as the window often remains closed during the winter months. Each of the three tiers in the Max Pod unit has a fresh air room.” (Para 30)

“The essential characteristics of both forms of segregation are severe restriction on mobility, activity and the virtual elimination of meaningful human contact. Regardless of the name, both forms of segregation are a form of solitary confinement and are contraindicated to a successful return to GP and the outside community. As summarized in BCCL at para 330:

I have no hesitation in concluding that rather than prepare inmates for their return to the general population, prolonged placements in segregation have the opposite effect of making them more dangerous both within the institutions’ walls and in the community outside. (Para 46)

“These conditions are unacceptable to a large segment of the population and offend public standards of decency and propriety. Given the design limitations inherent with the Max Pod units at the ERC and the decision not to install televisions in the cells, access to fresh air and regular exercise and opportunities for mental stimulation remain extremely limited. This reality underscores the need to ensure inmates do not spend more time in AS than absolutely necessary.” (Para 47)

“As of 2017, the current average stay in AS is 22 days. Prystay remained in AS for over 400 days. Neither Phillips nor Lalonde was able to provide the average length of stay in AS at the ERC. Stays over a year are “not unheard of.” In BCCL, Extensive evidence was heard on the efficacy of the 15-day limit for AS. Notably, the government’s expert, Dr. Genreau, recommended a 60-day limit.” (Para 56)

“During his placement in AS, Prystay demonstrated consistent good behaviour. Starting in April 2017, and every month thereafter, the correctional officers recommended his return to GS. This apparently carried no weight with ERC senior management. Instead, they focussed on Prystay’s past behaviour as the justification for his indefinite placement. When the decision was finally made to re-integrate Prsytay into GP, he first exercised with a compatible inmate during his half hour breaks. He then roomed with an inmate. That process took several months and was without incident. While this gradual process makes sense, I am unconvinced it could not have been successfully implemented months before.” (Para 61)

“A free and democratic society demands that human dignity and humane treatment and punishment be afforded to all Canadians, including those in the penal system. These basic values cannot be sacrificed in the name of convenience and expediency. Informed Canadians understand individuals like Prystay will at some point, be released back to the community. An extended placement in AS does nothing to facilitate his successful reintegration. Lalonde and Phillips both acknowledge this. Having concluded that Prystay’s stay in AS was demonstrably excessive, I now turn to the effects this placement had on him.” (Para 62)

“Despite having a few additional hours outside his cell when working as a cleaner, Prystay suffered from extreme stress, anxiety, sleeplessness, depression and paranoia. He experienced auditory hallucinations and physical symptoms including chest pain, back pain and body aches.” (Para 68)

“Both Lalonde and Phillips testified they had no concerns regarding Prystay’s mental health while he remained in AS. This is hardly surprising, as the checks and balances to ensure an inmate’s mental health is not in serious decline are tenuous and inmates are reluctant to report significant mental health issues.” (Para 69)

“Although the ERC policies mandated daily checks by correctional staff, a nurse and a psychologist, these inquiries were cursory and made through the cell door. The policies also mandated that those checks by correctional staff be noted in an inmate’s case notes. No such notations were identified in Prystay’s chart. Any notations made by AHS staff were kept in a separate file, not accessible by ERC staff. With no record and the limited communication permitted between AHS and ERC staff, I am not satisfied that the necessary checks were conducted to ensure Prystay’s psychological health.” (Para 72)

“As unfolded in BCCL, debate continues on whether or not AS is harmful to inmates and the proper scientific method for determining that issue. After summarizing the expert evidence in detail, Leask J concluded, at para 247, that inmates subject to AS are at significant risk of serious psychological harm:

I find as a fact that administrative segregation as enacted by s. 31 of the CCRA is a form of solitary confinement that places all Canadian federal inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide. Some of the specific harms include anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour. The risks of these harms are intensified in the case of mentally ill inmates. However, all inmates subject to segregation are subject to the risk of harm to some degree. (Para 76)

“Proving mental injury does not require that Prystay prove that his condition meets the threshold of a recognizable psychiatric illness, nor is it necessary that he call expert evidence to support his claim: Saadati v Moorhead, 2017 SCC 28, [2017] 1 SCR 543. Indeed, requiring inmates like Prystay to call expert evidence in applications like this one would be onerous and impractical.” (Para 81)

“I accept Prystay’s evidence that while in AS, he suffered from auditory hallucinations, paranoia, difficulties sleeping, anxiety and chest pain, feelings of hopelessness, increased antisocial feelings. Given his pre-existing mental health issues and the sheer length of time spent in AS, I conclude he was at increased risk of suffering some degree of permanent impact.” (Para 82)

“Despite completing multiple Request for Information forms (RFIs) asking why he was being detained in AS, the responses for the first eight months failed to provide Prystay with any reasons why management viewed him as an ongoing risk, or what he needed to do to return to GP.” (Para 98)

“With a few isolated exceptions, Prystay was noted to display good behaviour. He was polite with staff and kept a clean cell. It is worth repeating that from April 2017, the officers consistently recommended he be returned to GP.” (Para 104)

Prystay had been charged with an institutional murder, but his charges were stayed. (Para 113)

“Prystay’s apparent involvement in the murder came up repeatedly in Phillips’ evidence. Given this belief took center stage in Phillips’ decision to maintain Prystay’s indefinite placement in AS, Prystay should have been told of Phillips’ suspicion and been given an opportunity to respond.” (Para 116)

“Until late 2017, the decision makers never asked Prystay to respond to particular questions or concerns. He was never interviewed. There was no hearing. Prystay’s submissions were shots in the dark and he had no option but to hope something he wrote would resonate.” (Para 123)

“There is no rational basis to this approach, nor can it be said an inmate’s continued placement in AS is in accordance with ascertainable standards. If, in the Director’s opinion, the appropriate change of attitude and demeanor is evident, the inmate might be returned to GP. If the inmate fails to address the points the Director is looking for, or worse, is inarticulate or illiterate, there is not much hope for release.” (Para 124)

“It was never explained why ERC management felt comfortable starting Prystay’s reintegration process in early 2018, but not before. I reject that the reason was Prystay’s change of demeanor and attitude as evidenced through the contents of his RFIs. Although both Lalonde and Phillips deny Prystay’s habeas corpus application had any bearing on their decision to start the re-integration process in early 2018, I conclude this is an inescapable inference.” (Para 125)

“Informed Canadians also realize that indefinite placement in segregation thwarts an inmate’s chance of successfully re-integrating into society. Certainly Canadians find abhorrent that someone should remain in segregation for months or even years. Perhaps one day, segregation will be ended. Until then, recognizing that inmates have no political clout or influence, robust judicial oversight is the means of ensuring the constitutionally protected right to be free of cruel and unusual punishment or treatment is not sacrificed in the name of convenience or expediency.” (Para 129)

“In the circumstances of this case, including the length of Prystay’s placement in AS (13 ½ months), his evidence (which I accept) of the psychological and physical effects of that placement, and the absence of procedural fairness and ascertainable standards in its implementation, a s 12 breach is made out.” (Para 131)

Remedy: 3.5 to 1 Credit for Pre-trial Custody

For the offences Mr. Prystay committed: “I am satisfied that the joint submission presented by Crown and defence counsel, for a global sentence of 4 years and 10 months, is a fit and appropriate sentence that does not call the administration of justice into disrepute.” (Para 149)

“In all the circumstances of this case, I would have reduced Mr. Prystay’s sentence to time served, but it is not in Mr. Prystay’s interests to do so. The sentence fashioned provides Mr. Prystay with appropriate time to engage with Alberta Health Services – Transition Team and to arrange for placement in a residential treatment facility. He has clearly expressed his desire to attend a residential rehabilitation facility. He has never done so. Through the sentence imposed, it is my aim to facilitate, to the extent possible, Prystay’s admission into a residential treatment program immediately following the completion of his sentence and thereafter, the engagement of available community resources to provide the transitional support and psychiatric treatment, as recommended in the FACS assessment and as particularized in the Gladue Report.” (Para 163)

“Therefore, of the remaining 363 days served in AS between May 18, 2017 and May 15, 2018, I conclude an appropriate remedy is enhanced credit at a rate of 3.75 for each day served. The net sentence is 77 days remaining to be served. The calculation of his sentence is attached to these reasons as Appendix “A.”” (Para 165)

R v. Ostrowski (MBCA) [Nov 27/18] 

Proper Remedy for a Miscarriage of Justice on Appeal – 2018 MBCA 331 [Holly C. Beard J.A. for the Court, William J. Burnett J.A., Jennifer A. Pfuetzner J.A.]

AUTHOR’S NOTE: This case provides welcome guidance for which remedy should be sought following an appeal based on a miscarriage of justice.  In this case, the matter was referred back on a ministerial review, but similar considerations can arise in the context a normal appeal from conviction.

Pertinent Facts

“The Crown on appeal has agreed that the non-disclosure of two important pieces of evidence to the accused at the murder trial violated his right to make full answer and defence, leading to a miscarriage of justice. That evidence, which is explained later in these reasons, has been referred to as the Lovelace deal and the Jacobson report. The Crown also agrees with the accused that the conviction should be set aside and that there should not be a new trial because of the unavailability of some witnesses, the deterioration of evidence in the 32 years since the shooting and, also, because the accused has already served 23 years in prison.” (Para 2)

“The only issue between the Crown and the accused is that of the appropriate remedy. The Crown’s position is that the appropriate remedy is that of an order for a new trial and a judicial stay of those proceedings, while the accused argues that this Court should enter an acquittal.” (Para 3)

“Later in the fall of 1986, after Mr. Lovelace had begun cooperating with the police, he retained a lawyer, Hymie Weinstein, to represent him on his drug charges. Although Mr. Weinstein had no involvement in arranging Mr. Lovelace’s statements to the police regarding either the accused’s drug charges or the murder, he became aware that Mr. Lovelace was cooperating with them. According to Mr. Weinstein’s evidence, he approached the federal Crown’s office, which was prosecuting the drug charges but not the murder, and proposed that Mr. Lovelace should get some consideration regarding his drug charges in exchange for his cooperation in the murder case (the Lovelace deal).” (Para 14)

“The provincial Crowns who were prosecuting the murder trial insisted that they knew nothing about the Lovelace deal, as did Csts. McCormick and DeGroot. It is undisputed that the defence in the murder trial was never advised of Mr. Weinstein’s request for consideration for Mr. Lovelace or the federal Crown’s favourable response. The provincial Crowns argued the murder trial before the jury on the basis that Mr. Lovelace had received no consideration for his testimony. The failure to disclose the information about the Lovelace deal is one of the bases for the finding that there was a miscarriage of justice.” (Para 16)

“A few hours before the murder, Mr. Lovelace attempted to speak to his police contacts, who were Csts. McCormick and DeGroot, to report that he was concerned that the accused was going to harm those who he believed had informed on him. Those officers were not available, so he left a message with Sergeant Jacobson. Sergeant Jacobson’s personal notes of that conversation and his report (together, the Jacobson report) were not disclosed to the defence prior to the trial, but the content of a note that he left for the other officers was. There were inconsistencies between Mr. Lovelace’s testimony about the content of the message that he left with Sgt. Jacobson, the note that Sgt. Jacobson left for the other officers and the Jacobson report that could have been used by the defence to discredit Mr. Lovelace’s testimony, had they been disclosed to the defence prior to the murder trial. The failure to disclose the Jacobson report was the second basis for the finding that there had been a miscarriage of justice.” (Para 17)

Remedy for a Miscarriage of Justice on Appeal

“The remedies available to an appellate court where a conviction is quashed on appeal were explained by the Ontario Court of Appeal in R. v. Truscott, 2007 ONCA 575 (Ont. C.A.), as follows (at paras 246-49, 258):

Where a conviction is quashed on appeal, s. 686(2) of the Criminal Code provides two possible remedies: the appeal court may either order an acquittal or a new trial. If the court orders a new trial, the residual power in s. 686(8) permits it to also order a stay of that new trial. A stay is ordered in situations where a new trial, although warranted on the evidence, would be manifestly unfair to the appellant.

Relatively little has been written about the principles guiding the exercise of the remedial discretion in s. 686(2). It is clear that if the appeal court is satisfied based on the trial record as augmented by the fresh evidence, that no reasonable jury could convict, the appeal court’s discretion must be exercised in favour of ordering an acquittal. An acquittal is the only appropriate order in this circumstance since a conviction following a retrial would presumably be quashed as an unreasonable verdict. An appeal court will not order a new trial to make a case against an appellant when, as matters stood at the end of the proceedings in the court of appeal, no reasonable jury could convict.

Apart from those cases where an acquittal is mandatory, the manner in which an appeal court should exercise its remedial discretion is more uncertain. As a general rule, if the appeal court is satisfied that the entirety of the record at the end of the appeal admits of a reasonable possibility of a conviction on a retrial, the appeal court will order a new trial.

There are, however, cases where an appeal court has entered an acquittal even in the face of evidence that could reasonably support a conviction on a retrial. For example, acquittals have been entered where an appellant has fully served his or her sentence, or has already been subjected to several trials. These authorities offer little guidance as to when an acquittal should be entered as opposed to ordering a new trial with a direction that the trial be stayed.” (Para 18)

“Thus, a court of appeal must take a look at the evidence at trial, together with the new evidence admitted on appeal, to determine whether a conviction would be a reasonable verdict on a retrial. If the answer is yes, then the appellate court should remit the matter to the trial court for a retrial. If the answer is no, then the appellate court should enter an acquittal.” (Para 19)

“The Court in Truscott recognised that there may be cases where the circumstances require a different approach. It explained this as follows (at para 259):

This approach is not, however, appropriate in all circumstances. Some cases fall outside of the norm. The remedial discretion in s. 686(2) is sufficiently broad to permit resort to a more vigorous review of the evidentiary record in those cases where that approach is required by the interests of justice. For example, in deciding how to exercise our remedial discretion, we think it is significant that no new trial can ever be held in this case. The inability to retry the appellant may justify a more aggressive review of the factual record by this court then would be necessary if the matter could be put to a new jury on a retrial.” (Para 20)

“The Court then set out that new approach as follows (at para 268):

In the unique circumstances here, we take the following approach in exercising our remedial discretion. While acknowledging the limitations imposed by the appellate forum, the passage of time, and the numerous factual questions that will never be fully answered, we approach the determination of the appropriate remedy by envisioning how a hypothetical new trial of the appellant would proceed in light of the entirety of the information that is now before us. In our view, the appellant should be entitled to an acquittal if we conclude, based on all of the information now available, that it is clearly more probable than not that the appellant would be acquitted at a hypothetical new trial.” (Para 23)

“This new approach is intended to address the situation where there will be no new trial even though the evidence could lead to either a conviction or an acquittal (see para 265). Without an acquittal or a new trial, the accused is left in the unfair position of having the stigma of the charges hanging over him, yet never being in the position to fully defend himself. The Court in Truscott recognised this unfairness and found that it would be best addressed by way of a new evidentiary threshold for determining whether to grant an acquittal, which places the evidence in support of a conviction, and therefore for ordering a new trial, under greater scrutiny.” (Para 24)

“In summary, where a conviction has been quashed based on a finding of a miscarriage of justice, there are two possible remedies available to the appellate court under section 686(2) of the Criminal Code — an order for a new trial or the entry of an acquittal. The tests for determining which remedy to grant are as follows:

  1. (i) the appellate court must enter an acquittal if it is satisfied, based on the trial record as augmented by the fresh evidence, that no reasonable jury could convict;
  2. (ii) the appellate court should order a new trial if a conviction would be a reasonable verdict on a retrial (a relatively low evidentiary threshold); and
  3. (iii) in special circumstances, the appellate court can enter an acquittal if it concludes, based on all of the information then available, that it is clearly more probable than not that the appellant would be acquitted at a hypothetical new trial (a higher evidentiary threshold than for ordering a new trial).” (Para 26)

R. v. Jiang (ONCA) [Dec 27/18]

Charter s.7 – Late Disclosure  – 2018 ONCA 1081 [G. Pardu J.A. with C.W. Hourigan J.A., Harvison Young J.A. Concurring]

AUTHOR’S NOTE: Late disclosure is a continuing problem in the criminal justice system.  In many ways, the ruling in R v Jordan has made things worse as the Crown rushes to and through trials.  The focus on efficiency tends to undermine the ultimate purpose of the justice system to get at the truth of the matter.  Perhaps no Charter violation is as impactful in that regard as the failure of the Crown to disclose relevant materials and do so in a timely fashion.  The prejudice to the ability of an accused to mount a fulsome defence is undermined by such conduct.  This decision shows that no matter how deep into a trial the matter proceeds, late disclosure can unravel all of it and cause great prejudice to an accused.  This case also is a welcome reminder to trial judges that some issues are beyond remedies that involve continuing the trial.  Sometimes a mistrial is the best thing for the justice system.

Pertinent Facts

“Chunqi Jiang appeals from his conviction for second degree murder. The Crown failed to disclose relevant evidence until partway through the appellant’s cross-examination. These were records relating to the appellant’s mother’s health, which were relevant to the appellant’s defence that his mother killed the victim. Whether she was relatively robust or quite infirm had a bearing on the likelihood that she, rather than the appellant, was the killer. The mother died as a result of cardiac arrhythmia several weeks after the death of the victim in this case.” (Para 1)

“The appellant applied for a mistrial after learning of the Crown’s failure to disclose. The trial judge concluded that there had been a serious breach of s. 7 of the Canadian Charter of Rights and Freedoms caused by the late disclosure of the medical records:

[66] I am satisfied that actual prejudice has been shown in respect [to] the fact that counsel for Mr. Jiang were unable, as a result of the late disclosure, to address in examination in chief of Mr. Jiang, the contents of the medical records and his awareness of the various health issues of Fen Gen Zhang that are apparent in the records.

[67] The conduct of the Crown in holding back the medical records until after Mr. Jiang was giving testimony and had completed examination in chief is a serious breach of Mr. Jiang’s right to disclosure….” (Para 2)

However, despite the above noted “serious breach” deep into the trial of the accused, the trial justice allowed the trial to proceed expecting the pathologist [Dr. Pickup] to testify that the medical records related to the mother’s physical abilities showed that the mother may well have been capable of inflicting the injuries sustained by the victim.  Unfortunately, despite testifying to this effect on the mistrial voir dire, the pathologist said this was beyond his a qualifications by the time he testified in the trial.  Yet still, the court pressed on to the ultimate conviction (Para 3)

Does the Late Disclosure Warrant a New Trial

“The appellant and the Crown agree on the test to determine whether an appellant is entitled to a new trial as a result of non-disclosure by the Crown, derived from R. v. Dixon, [1998] 1 S.C.R. 244, and R. v. Skinner, [1998] 1 S.C.R. 298. An appellant is entitled to a new trial if he “demonstrates that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process”: Dixon, at paras. 31-35. A trial is unfair if it is “reasonably possible that disclosure [of the undisclosed item] would have had an impact on the conduct of the defence at trial”: Skinner, at para. 12.” (Para 4)

“The following chronology describes the Crown’s acquisition of the medical records, the failure to disclose them and the cross-examination by the Crown that alerted the defence to the non-disclosure:

  • Tuesday June 3: Crown counsel received the mother’s OHIP records and sent them to Dr. Pickup but did not disclose them to the defence….
  • Monday June 9: defence counsel started her direct examination of the appellant
  • Wednesday June 11: defence counsel concluded her direct examination of the appellant; and Crown counsel began his cross-examination of the appellant
  • The Crown’s cross-examination of the appellant led his counsel to suspect that medical records had not been disclosed” (Para 8)

“Contrary to what was suggested in cross-examination [by the Crown], the mother did not die of a heart attack but of a sudden cardiac arrhythmia which might not have earlier interfered with her ability to carry out normal physical activities. The mother’s family doctor reported to the officer in charge on June 7 that the mother had been relatively healthy but had medical issues pertaining to her heart and anxiety about her relocation to Canada.” (Para 10)

“Dr. Pickup had reviewed her medical records and reported to the trial Crown on June 9 that the mother had undergone an exercise stress echo on December 19, 2011 and had appeared to perform satisfactorily. Contrary to the suggestions put by the trial Crown, Dr. Pickup did not report that the mother was very sick, or sick physically.” (Para 11)

“In his closing submissions to the jury the trial Crown referred to the mother’s health issues:

Ms. Wells in her argument said I’m going to suggest to you that she was physical incapable. Certainly not, she had two arms and two legs, I guess she’s theoretically capable of doing this. But the reason we brought out the health information, both from her autopsy, health records, putting it together was to show you a factor that is involved in this. A factor that is just as relevant as their relative heights, just as relevant as their relative age, just as relevant as their relative — as their relative build, the fact that this woman had health issues, full stop. It was led before you just so you would have a complete picture, so you would not be under any illusions as to what her state of health was. You’ve heard that evidence, you decide. I submit it’s a relevant factor and that’s for you to decide. (Para 15)

Author’s Note: One wonders why the trial did not, after this closing argument, go into a mistrial application.  If the pathologist was ultimately not able to opine about this issue, how could the Crown prosecutor without medical evidence?  Again, the issue of efficiency seems to have eclipsed the ultimate purpose of the trial.

“I am satisfied that there is a reasonable possibility that the non-disclosure affected the overall fairness of the trial process. The appellant was left stumbling in front of the jury to respond to factual assertions that were contradicted to some extent by the medical records which had not been disclosed. The clear inference suggested by the questions is that the mother was very ill and could not have killed the victim, that this was apparent to the appellant and that his testimony was not credible.” (Para 16)

“Just as in R. v. LAT (1993), 14 O.R. (3d) 378 (C.A.), the late disclosure of the medical records adversely affected defence counsel’s ability to deal with credibility issues at trial.” (Para 17)

“This in itself is sufficient to require a new trial. However, there is also a reasonable possibility that the medical records could support an argument that the mother was physically capable of inflicting the wounds on the victim. In cross-examination Dr. Pickup went so far as to say there was nothing in the records that said the mother was incapable of inflicting the fatal wounds. I do not read the trial Crown’s closing submissions as a concession that the mother was so capable. Rather, the Crown was attempting to make a virtue of its tardy disclosure of the records.” (Para 18)

“There is also a reasonable possibility that the non-disclosure had an impact on the outcome of the trial. Here there was a suggestion that the mother had some animus towards the victim because the victim had stolen precious jewelry from the mother. Because of the mother’s antipathy towards the victim, and her presence in the home at the time of the killing, the mother’s role in the killing, if any, was a live issue before the jury.” (Para 19)

A new trial was ordered.

About the Author:

Pawel is a partner at Sitar & Milczarek. When he's not litigating he writes the Defence Toolkit blog.