Schulman
J.
Dara
Wilder’s
trial
on
charges
of
attempt
fraud
and
tax
evasion
began
before
me
4
1/2
years
after
a
direct
indictment
was
preferred.
Under
the
Charter
he
was
entitled
to
be
tried
within
a
reasonable
time.
The
crown
did
not
make
complete
disclosure
of
its
case
when
defence
counsel
first
asked.
Under
the
Charter,
the
crown
was
required
to
make
complete
disclosure
on
the
request
of
defence
counsel.
The
issue
before
me
on
these
motions
is
whether
Wilder’s
Charter
rights
have
been
breached,
and
if
so,
what
relief
should
be
granted.
Before
the
trial
began,
defence
counsel
moved,
before
my
colleague
Hirschfield
J.,
for
an
order
staying
the
prosecution
for
delay.
Hirschfield
J.
dismissed
the
motion.
After
a
plea
was
taken
before
me,
defence
counsel
moved
again
that
the
prosecution
be
stayed
for
delay.
Counsel
for
both
parties
agreed
that
it
was
open
to
the
defence
to
renew
the
application.
On
the
hearing
of
the
motion,
counsel
for
the
crown
took
the
position
that
I
should
restrict
my
review
of
the
matter
to
events
which
took
place
since
the
hearing
of
the
first
motion.
For
his
part,
counsel
for
the
defence
argued
that
Hirschfield
J.
made
erroneous
findings
in
rejecting
the
first
motion.
I
concluded
that
in
dealing
with
this
motion
I
would
review
the
entire
proceeding
from
its
inception
de
novo.
However,
as
I
was
not
completely
familiar
with
the
nature
of
the
case,
I
reserved
decision
and
proceeded
to
hear
evidence
at
the
trial.
Late
in
the
trial
counsel
for
the
defence
made
a
further
submission
touching
on
the
motion
to
dismiss
for
delay.
He
also
moved
to
dismiss
the
charges
because
of
insufficient
disclosure
on
the
part
of
the
crown.
These
motions
overlapped
one
another,
and
I
find
it
convenient
to
deliver
judgment
on
both
motions
at
the
same
time.
This
case
has
several
unique
features
which
distinguish
it
from
numerous
decisions
which
have
been
brought
to
my
attention
or
of
which
I
am
aware.
Firstly,
there
was
no
preliminary
hearing,
and
it
is
arguable
that
the
burden
of
disclosure
in
this
case
was
greater
than
that
required
in
a
case
in
which
there
was
a
preliminary
hearing.
Secondly,
an
important
part
of
the
narrative
on
which
the
crown’s
case
is
based
arises
from
documents
which
were
prepared
by
Wilder,
his
lawyers
or
accountants,
or
his
personal
records.
Thirdly,
although
the
trial
began
in
April
1994,
the
evidence
of
11
witnesses
was
taken
on
commission
at
a
point
between
5
and
23
months
after
the
indictment
was
preferred.
An
outline
of
pertinent
events
is
as
follows:
1990-
January
-
Direct
indictment
-
Order
for
judicial
interim
release
Krindle
J.
April
-
Order
for
commission
evidence
Krindle
J.
May
-
Disclosure
by
crown
counsel
of
documents
and
"will
says"
of
witnesses
to
be
called
on
commission
-
Evidence
taken
on
commission
(3
days)
September
-
Order
for
continuation
of
the
commission
Krindle
J.
-
Disclosure
of
business
records
to
be
relied
on
and
"will
says"
of
five
trial
witnesses
October
-
Disclosure
of
"will
says"
of
12
persons
who
will
be
either
witnesses
on
commission
or
at
trial
November
-
Evidence
taken
on
commission
(8
days)
1991-
February
-
Evidence
taken
on
commission
(1
day)
April
-
Evidence
taken
on
commission
(4
days)
August
-
Defence
motion
for
particulars
and
notes
of
crown’s
witnesses,
dismissed
Krindle
J.
-
A
judge
in
B.C.
grants
such
an
order
in
a
related
prosecution
-
Evidence
taken
on
commission
(3
days)
September
-
Order
for
further
cross-examination
on
commission
of
witnesses
named
in
the
original
order
Krindle
J.
-
Meeting
of
court
and
counsel
(Court’s
memo
notes
that
defence
counsel
raised
the
question
of
re-opening
the
commission
evidence.
A
target
date
of
December
15,
1991,
was
suggested
for
the
motion)
Krindle
J.
-
Disclosure
of
taped
interviews
and
interview
notes,
and
crown
counsel
taking
position
that
a
motion
would
have
to
be
brought
to
re-open
commission
November
-
S.C.C.
renders
its
decision
in
À.
v.
Stinchcombe
-
Evidence
taken
on
commission
pursuant
to
September
order
(3
days)
1992-
January
-
In
assignment
court,
crown
seeks
to
fix
trial
date.
Defence
complains
about
need
to
re-open
commission
-
Defence
counsel
writes
to
commission
that
it
would
be
inappropriate
to
complete
the
certificate
of
completion
of
the
commission
evidence
until
such
time
as
all
potential
motions
for
re-
examination
of
commission
witnesses
have
been
dealt
with
by
the
end
of
March
1992
-
Commissioner
writes
to
defence
counsel
that
he
will
not
finalize
the
certificate
until
he
is
advised
of
the
outcome
of
the
motion
-
Meeting
with
court
and
counsel
-
Court
directs
that
if
there
is
to
be
any
motion
to
re-open,
it
must
be
filed
by
the
end
of
March
1993
Krindle
J.
June
-
Letter
from
crown
to
defence
stating
that,
if
defence
intends
to
apply
to
re-open
the
commission,
it
should
be
done
quickly
December
-
Crown
motion
to
revoke
bail
is
withdrawn,
and
defence
motion
for
judicial
stay
is
argued
Hirschfield
J.
-
Crown
disclosure
of
interview
notes
and
tapes
of
trial
witnesses
and
persons
not
likely
to
be
called
at
trial
1993
—
January
-
Motion
for
stay
dismissed
Hirschfield
J.
April
-
Defence
motion
for
particulars
Krindle
J.
-
Motion
for
particulars
dismissed
Krindle
J.
June
-
Defence
motion
to
continue
examinations
on
commission
Krindle
J.
-
Motion
dismissed.
Court
directs
crown
to
obtain
certificate
from
commissioner
Krindle
J.
July
-
Commissioner
closes
commission
September
-
Trial
date
set
1994-
January
-
Further
disclosure
by
crown
to
defence
March
-
Election
and
plea
of
not
guilty
April
-
Trial
begins.
Disclosure
Defence
counsel
submitted
that
the
crown
failed
to
make
the
disclosure
which
is
required
of
it
by
section
7
of
the
Canadian
Charter
of
Rights
and
Freedom
and
the
decision
of
the
Supreme
Court
of
Canada
in
R.
v.
Stinchcombe,
[1991]
3
S.C.R.
326,
[1992]
1
W.W.R.
97.
He
submitted
that
the
crown
made
no
disclosure,
or
in
the
alternative,
that
the
crown
made
insufficient
disclosure
to
satisfy
the
requirements
of
the
Stinchcombe
case.
Crown
counsel
submitted
that
the
crown
had
made
some
disclosure,
though
he
conceded
that
it
was
imperfect,
and
he
took
the
position
that
no
prejudice
was
suffered
by
Wilder
and
no
breach
of
the
Charter
proved.
I
reject
the
contention
of
the
defence
that
there
was
no
disclosure.
All
pertinent
documents
were
disclosed
on
a
timely
basis,
as
well
as
some
information
about
what
witnesses
would
be
expected
to
say.
The
real
issue
on
this
motion
is
whether
the
crown’s
imperfect
disclosure
satisfied
the
requirements
of
section
7
of
the
Charter.
From
the
spring
of
1990,
defence
counsel
sought
from
the
crown
the
names
of
witnesses
to
be
called
on
commission,
the
names
of
witnesses
to
be
called
at
trial,
and
statements
taken
from
all
these
persons,
as
well
as
from
persons
whom
the
crown
would
not
likely
be
calling
as
witnesses.
This
information
was
sought
early
enough
to
permit
the
defence
to
digest
the
material
and
be
in
a
position
to
cross-examine
the
witnesses
called
on
commission,
not
only
on
matters
to
be
elicited
on
examination-in-chief,
but
also
on
matters
which
the
defence
deemed
important
which
might
be
touched
on
by
witnesses
to
be
called
later
by
the
crown
or
by
the
defence.
Counsel
other
than
Mr.
Mackoff
conducted
the
prosecution
in
its
early
stages.
He
held
the
view
that
the
crown
could
satisfy
its
obligation
of
disclosure
by
producing
summaries
of
information
provided
to
the
crown,
rather
than
statements,
tapes
of
interviews,
and
memoranda
of
interviews.
The
crown
changed
its
position
and
made
disclosure
of
taped
interviews
and
interview
notes
in
September
of
1991,
after
a
British
Columbia
court
ordered
such
disclosure
in
a
related
prosecution.
By
that
time,
evidence
in
this
case
had
been
taken
on
commission
from
several
witnesses.
The
crown
made
further
disclosure
in
December
1991
and
January
1994,
and
defence
counsel
claims
that
the
defence
has
been
prejudiced
by
the
lack
of
timely
disclosure
in
this
case.
The
Supreme
Court
held,
in
Stinchcombe,
that
the
crown
has
an
obligation
to
provide
to
the
defence
statements
taken
from
witnesses,
or
if
they
do
not
exist,
notes
taken
during
interviews,
where
witnesses
have
anything
to
say
relevant
to
a
charge,
whether
the
information
helps
the
crown
or
the
defence.
Unless
the
information
is
irrelevant
or
privileged,
disclosure
should
not
be
withheld,
"if
there
is
a
reasonable
possibility
that
the
withholding
...
will
impair
the
right
of
the
accused
to
make
full
answer
and
defence."
(at
page
340).
The
court
held
that
the
obligation
is
triggered
by
a
request
made
by
the
defence
at
any
time
after
a
charge
has
been
laid.
In
À.
v.
O'Connor
(1994),
29
C.R.
(4th)
40,
42
B.C.A.C.
105
(B.C.C.A.),
the
court
considered
the
effect
of
the
failure
on
the
part
of
the
crown
to
make
complete
disclosure.
At
pages
78
(B.C.A.C.
137),
the
Court
stated:
[paragraph
135]
It
follows
from
the
foregoing
that
mere
failure
by
the
Crown
to
make
all
relevant
disclosure
before
the
trial
actually
begins,
is
unlikely,
in
itself,
to
result
in
a
constitutional
remedy.
It
is
only
where
the
non-disclosure,
even
at
that
stage
in
the
proceedings,
can
be
shown
to
be
material
to
the
ability
of
the
accused
to
make
full
answer
and
defence
that
a
remedy
will
be
available
under
subsection
24(1)
of
the
Charter.
[para
136]
It
also
follows
that
the
pre-trial
exercise
by
the
Crown
of
its
discretion
with
respect
to
disclosure,
if
reviewed
and
found
to
be
in
error,
will
only
result
in
a
violation
of
the
accused’s
constitutional
rights
under
section
7
of
the
Charter
in
those
exceptional
cases
where
the
delayed
disclosure
can
be
shown
to
have
been
material.
Unlike
the
Stinchcombe
case,
Mr.
Wilder
did
not,
in
the
first
instance,
have
an
opportunity
to
make
an
election
and
have
a
preliminary
hearing.
The
crown
preferred
an
indictment
which
necessitated
a
trial
by
jury,
without
a
preliminary
hearing.
It
was
only
in
March
of
1994
that
the
crown,
acceding
to
the
defence
request,
permitted
Wilder
to
re-elect
to
be
tried
by
a
judge
without
a
jury.
In
the
context
of
this
case,
the
obligation
to
disclose
arose
long
before
the
election
was
taken.
The
obligation
to
disclose
was
triggered
by
defence
counsel’s
demand
made
in
the
spring
of
1990.
The
issue
which
I
must
address
is
whether
the
delayed
disclosure
was
material.
Defence
counsel
argued
that
lack
of
timely
disclosure
impaired
the
ability
of
the
defence
to
deal
with
the
evidence
of
six
commission
witnesses.
He
referred
to
14
instances,
spread
among
the
six
witnesses,
where
persons
interviewed
by
the
crown
provided
information
touching
on
the
evidence
of
one
or
more
of
these
witnesses;
yet
disclosure
was
not
made
until
after
the
evidence
of
these
witnesses
had
been
taken
on
commission.
In
three
instances
only,
the
defence
claims
that
it
was
deprived
of
an
opportunity
to
cross-examine
a
witness
on
commission
about
something
he
told
to
investigators
and
not
disclosed
until
after
completion
of
the
witness’s
evidence.
In
all
other
instances,
he
complained
that
the
crown
did
not
give
timely
disclosure
of
something
told
to
the
crown
in
one
of
the
following
situations:
firstly,
information
provided
by
a
person
who
gave
evidence,
but
the
information
provided
to
the
crown
was
not
the
subject
of
the
person’s
evidence
at
the
trial;
secondly,
information
provided
to
the
crown
by
a
person
who
was
not
called
as
a
witness
at
the
trial.
I
find
that
none
of
the
alleged
lack
of
timely
disclosure
contradicts
the
testimony
of
any
of
the
six
witnesses
in
respect
of
whom
defence
counsel
complains.
In
no
instance
has
defence
counsel
identified
a
situation
where
the
defence
has
been
deprived
of
an
opportunity
to
cross-examine
on
material
information.
In
addition,
I
think
it
doubtful
that
the
court
would
have
permitted
defence
counsel
to
cross-examine
witnesses
about
infor-
mation
provided
to
the
crown
by
persons
other
than
the
witnesses
themselves.
I
am
reinforced
in
my
view
that
the
matters
of
which
defence
counsel
complains
are
not
material
because
he
was
aware
of
nearly
all
of
them
when
he
moved,
in
June
1993,
to
re-open
the
commission;
yet,
he
did
not
refer
to
these
matters
in
support
of
his
motion.
I
therefore
find
that
the
imperfect
disclosure
on
the
part
of
crown
did
not
impair
the
ability
of
Wilder
to
make
full
answer
and
defence,
nor
is
there
a
reasonable
possibility
that
it
did
so.
He
has
failed
to
establish
a
breach
of
section
7
of
the
Charter.
Delay
A
delay
of
4
1/2
years
from
charge
to
opening
of
trial
is
unusually
long.
It
is
at
the
upper
end
of
delay
which
has
been
tolerated
by
our
courts
since
R.
v.
Askov,
[1992]
S.C.R.
1199,
74
D.L.R.
(4th)
355.
The
delay
calls
for
an
explanation
by
the
crown
and
an
examination
of
whether
prejudice
has
been
caused
to
the
defence.
The
4
1/2-year
period
breaks
down
into
four
segments.
Between
January
and
March
of
1990,
events
took
place
related
to
judicial
interim
release.
Between
April
1990
and
December
1991,
orders
were
made
for
the
taking
of
the
evidence
on
commission.
The
crown
made
disclosure
in
stages.
Eleven
witnesses
gave
evidence
over
22
days.
Between
December
1991
and
July
1993,
the
defence
brought
a
number
of
motions.
The
crown
attempted
to
set
a
trial
date.
The
defence
resisted
setting
the
trial
date,
asserting
that
it
would
shortly
be
bringing
a
motion
to
re-open
the
commission
evidence.
The
defence
delayed
bringing
that
motion
until
June
of
1993.
The
trial
date
was
set
in
September
of
1993,
and
no
complaint
is
made
by
the
defence
about
the
period
of
time
from
then
until
April
1994.
The
defence
complains
about
the
period
of
time
which
elapsed
from
the
spring
of
1990
until
the
date
for
trial
was
set,
except
for
a
period
of
three
months
in
early
1993
when
it
is
agreed
that
the
crown
should
not
be
faulted.
Defence
counsel
says
that
if
full
disclosure
had
been
made
in
the
first
instance
the
commission
evidence
could
have
been
taken
within
a
month
and
the
trial
held
within
a
year.
I
have
read
the
transcript
of
all
evidence
taken
on
commission
and
watched
the
video
tapes
of
the
proceedings.
While
full
disclosure
from
the
start
would
have
led
to
a
more
efficient
proceeding,
cross-examinations
took
longer
than
could
reasonably
be
anticipated,
and
I
doubt
that
arrangements
could
have
been
made
to
see
that
aspect
of
the
proceedings
done
in
less
than
a
year.
During
the
December
1991
to
July
1993
period,
I
find
that
defence
tactics
prevented
the
case
from
being
tried,
and
in
my
view
the
defence
cannot
successfully
complain
about
the
period
of
time
which
elapsed
due
to
its
tactics.
Affidavits
have
been
filed
by
two
lawyers
who
assisted
Mr.
Wolch
in
the
conduct
of
the
defence,
suggesting
that
the
delay
in
conduct
of
the
trial
has
adversely
affected
Wilder
and
his
ability
to
defend
himself.
The
evidence
offered
is,
at
best,
one
of
impressions
and
conclusions.
The
al-
legation
has
not
been
substantiated
by
any
compelling
facts.
Moreover,
having
reviewed
the
evidence
which
has
been
adduced
against
Wilder,
both
taken
on
commission
and
taken
at
trial,
I
find
that
the
delay
has
not,
in
any
material
way,
affected
Wilder’s
opportunity
to
make
full
answer
and
defence.
He
has
failed
to
establish
a
breach
of
the
Charter
for
delay.
Having
made
my
findings
on
each
of
the
above-mentioned
motions,
I
have
considered
whether
it
can
be
said
that
the
imperfect
disclosure
and
delay
in
the
conduct
of
the
trial
have
had
the
cumulative
effect
of
causing
prejudice
to
Wilder.
I
find
that
the
defence
has
failed
to
establish
that
the
two
factors
together
interfered
with
his
opportunity
to
make
full
answer
and
defence.
I
therefore
dismiss
both
motions.
Motions
dismissed.