Her Majesty the Queen v. Dara Maxwell Wilder, [1995] 2 CTC 520

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.