COURT FILE NO.:  01-037

DATE:  February 18, 2004

 

 

ONTARIO

 

SUPERIOR COURT OF JUSTICE

 

 

B E T W E E N:

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HER MAJESTY THE QUEEN

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John Benson and Trevor Jukes, for the Crown

 

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- and -

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JUSTIN CARAMBETSOS

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David Gibson, for the Accused

 

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Accused

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HEARD:  January 12 – 30, February 16 – 18, 2004 in Kenora

 

 

 

** PUBLICATION BAN IN EFFECT **

 

 

 

 

RULING ON DEFENCE APPLICATIONS

FOR EXCLUSION OF EVIDENCE AND STAY

 

 

THE HONOURABLE MR. JUSTICE P. B. HAMBLY

 

I  Introduction

[1]               Justin Carambetsos is charged with manslaughter on Max Kakegamic on October 4, 2000. He was committed to stand trial after a preliminary hearing on June 29, 2001. I heard pre-trial motions brought by the accused over six weeks in the first six months of 2003 commencing on January 20 in which he sought to exclude evidence and to stay the proceedings. I denied the motions in a ruling dated June 27, 2003. The accused brought a further motion to introduce evidence of another suspect. I allowed this motion in my ruling dated December 3, 2003.

[2]               Jury selection commenced on Monday, January 12, 2004. The crown is represented by Mr. J. Benson and Mr. T. Jukes. The accused is represented by Mr. D. Gibson. The crown challenged for cause. A jury was selected. The trial commenced Wednesday, January 14, 2004. On Friday, January 16 the accused renewed his application for a stay as a result of new evidence that emerged. The jury was excused. The evidence and submissions on the stay application were completed on Thursday, January 29, 2004. On Friday, January 30 I declared a mistrial. I reserved my ruling on the stay application. I made a ruling permitting the accused to reargue the motion to exclude the evidence based on the new evidence that had emerged. Notwithstanding my declaration of a mistrial, the parties have consented to my hearing the applications and to all the evidence that I have heard applying to these applications. The parties are also agreed that my previous rulings are void as a result of the mistrial. I will not repeat the summary of the evidence that is contained in my two prior rulings except as required to develop the argument in this ruling.

 


II  Issues

 

The issues are as follows:

 

1.  Whether the boots seized by the police from the accused should be excluded from evidence pursuant to s. 24(2) of the Charter by reason of his wrongful arrest resulting in a breach of section 9 and other Charter breaches.

 

2.  Whether police misconduct constitutes a breach of section 7 of the Charter and an abuse of process.

 

3.      If the answer to this question is yes, is there a remedy which could guarantee the accused’s right to a fair trial or must there be a stay.

 

I have decided that if there was a trial, the accused’s boots should be excluded from evidence. Police misconduct does constitute a breach of s. 7 of the Charter and an abuse of process. A stay is the appropriate remedy.

 

III  Overview

 

[3]               On the third day of the trial it was discovered through Jorgensen’s evidence that Carambetsos had made a statement to White on October 4, 2000 in the police station.  Carambetsos told White that Max Kakegamic was bleeding in Maria Campenella’s apartment before he touched him. He said that he removed him onto Matheson Street, where he left him alive and conscious. He did not assault him. White disclosed this statement to the investigative team but no one disclosed it to the crown and hence it was not disclosed to the defence. The defence submits that White was untruthful to the court at the preliminary hearing and in his evidence at the pretrial motions when he said that Carambetsos did not make a statement. The credibility of White, Favreau and Ratchford has been destroyed. 

[4]               The defence submits that there were never grounds to arrest Carambetsos for anything. Any grounds that there may have been disappeared when he made a detailed exculpatory statement. This should have resulted in his release pending an objective and thorough investigation including Danny Favreau as being the person who assaulted and killed Max Kakegamic. This did not occur. The police had no authority to seize the accused’s boots. The pretrial motion to exclude the boots should be reviewed and allowed.

[5]               Until Favreau testified in January 2003 on the pretrial motions, the position of the crown was that Heather Gunn said that Danny Favreau was in the area to White and Favreau in the police car on October 4, 2000. Only Favreau recalled this. No one had a note of it. Danny Favreau was not a suspect. At the pre-trial motions in January 2003 Favreau said he was a suspect but he took action to eliminate him as a suspect. This had not been disclosed. In any event, the defence submits that this should be disbelieved because it was an attempt by Favreau to meet the criticism of him by Mitchell and to rehabilitate himself with Curtis. With the complete collapse of the credibility of both White and Favreau, the Court should make a finding that Heather Gunn must have told White and Favreau what she said later about seeing Danny Favreau on Matheson Street acting suspiciously.

[6]               The non-disclosure and suppression of evidence important to the accused’s right to make full answer and defence constitutes a breach of section 7 and an abuse of process and should result in a stay.

 

IV  Statement of Carambetsos to White - October 4, 2000

 

 

[7]               Then Sgt. D. Jorgensen, now Deputy Chief Jorgensen, was the identification officer in this case. He gave evidence of his examination of the scene. He took blood swabs of the bloodstains in Maria Campenella’s apartment, the entryway from the street to the stairs leading to her apartment, on the sidewalk outside the door to the street, and in the area where the body was found. He submitted these swabs along with some other evidence to the Northern Regional Forensic Laboratory in Sault Ste. Marie for testing. In accordance with the procedure, he drafted a case summary, which included a case history and a list of the exhibits submitted. The case history consisted of two pages 8 ½ x 14 of single space typing. Jorgensen drafted this document on October 14, 2000 at the police station. He worked on a desk in the breathalyzer room. He did the typing himself. White was working in an office in the same area. Jorgensen consulted with White in setting out the case history in areas of the investigation where he did not have personal knowledge.

[8]               The third paragraph of the second page reads as follows:

“CAMPENELLA was finally spoken to when investigators began checking the area later in the morning. She related her story and the accused was arrested approximately 8 hours after the events so far described. He would not give a statement but did state to officers that he had carefully taken the deceased out of the apartment, taking particular care going down the stairs to ensure the deceased remained upright and did not fall. He indicated the deceased already had blood on him when he found him in the chair and that he in no way was responsible for any injuries to the deceased. He indicated the deceased was fine when he left him and in fact had called the accused an “asshole” as he (the accused) was walking away.” (highlighting added)

 

[9]               I conducted a voir dire at the request of the accused to determine the origin of this information and further particulars. Jorgensen said he acquired this information from White as he was drafting the case history on October 14. Jorgensen himself had not spoken to Carambetsos. Indeed, he had not interviewed any witnesses. He thought that White could have given him this information sometime before October 14 in discussions about the case. He could not be sure. He went to Winnipeg with White on the night of October 4. He thought it likely that White told him what Carambetsos said at that time. Counsel agreed that the crown had disclosed the case history form as part of the initial disclosure package well in advance of the preliminary hearing. Counsel are also agreed that this exculpatory statement of the accused was not in police notes or will-states. Mr. Gibson said that he only became aware of it several days before the commencement of the trial in his preparation to cross-examine Jorgensen. The crown accepts this.

[10]           Mr. Gibson called Cst. White, now Sgt. White. He testified that Carambetsos had made a statement to him at the police station on the morning of October 4 containing information similar to the information in the case history. He did not make a note of it. He did not make a videotape or audiotape of the conversation. He could not recall the precise words used by Carambetsos. He agreed that Carambetsos likely did tell him precisely what is in the document. Jorgensen was the author of the document. He obtained the information from White. Hence White agreed that he must have told Jorgensen this and it must have been the truth. He did not have an independent recollection of it.

[11]           He said that he had disclosed this information to the other members of the investigative team. He meant by this, Favreau, Ratchford and Jorgensen. Mr. Gibson called Favreau and Ratchford on the voir dire. Each denied any knowledge of this statement of Carambetsos to White. White did not disclose it to the crown attorney or to the court. His explanation for this was twofold. He said that he was not sure of its admissibility, and he felt bound by an undertaking that he had made to Carambetsos that his questioning of him was off the record. He agreed that he testified as follows at the preliminary hearing and at the pre-trial motions:

From the Preliminary Hearing:

Q. And do you have a conversation with Mr. Fregeau when he finishes with his client?

A. Nothing specific that I, he probably said don’t talk to my client, something like that.

Q. Well, do you recall him saying that or…

A. I don’t recall.

Q. …do you think he probably said that?

A. I’ve dealt with him before and that’s usually what he says, but I don’t recall what he said this time.

Q. You didn’t make a note of that?

A. I didn’t, no.

Q. And so after Mr. Fregeau leaves, what do you do?

A. I eventually take Mr. Carambetsos’ fingerprints and picture.

Q. Do you have any conversation with him at that point in time?

A. Umm…we talk, yes.

Q. You talked with Mr. Carambetsos?

A. Yes.

Q. What did you discuss?

A. Uh…it was…I’ve know Justin for quite awhile, our talk was, and I used the words ‘off the record’ and I didn’t make notes of anything we talked about.

Q. What do you mean, are you using the term ‘off the record’ with us or you used that term with Mr. Carambetsos?

A. I used it with him.

Q. What exactly did you say?

A. Just talked of the seriousness of the incident.  He said he doesn’t want to talk, he doesn’t want to talk, advice from his lawyer, he didn’t want to talk and it was just a round about circle in, as we sat in the room.[1] (highlighting added)

And:

Q. So, when you get into the Ident. area, the first order of business is to take pictures and prints?

A. That’s the process, yes.

Q. Is that what happened?

A. We sat down first.

Q. And you initiated a conversation?

A. Yes.

Q. And what did you say to him?

A. Like I said, I just said, you know, talked about the seriousness of the incident and that he said, “I don’t want to talk, I don’t want to talk, my lawyer said not to talk,” and then I just said, “this is off the record between me and you,” that “you know, you may be in a lot of trouble here” and “I don’t want to talk, I don’t want to talk.” We didn’t get into any specifics of the case or like I say, nor did I write down anything.[2] (highlighting added)

 

From the pre-trial motions:

Q. So, can you give us your best recollection of the sort of, back and forth between you and Mr. Carambetsos, what did you say and how did he respond?

A. Well, like I said, you know, I kept expressing the seriousness of the offence, uh, that anytime he wanted to talk, we would talk, uh, again, I, I’m, I’m sure I woulda told him we knew he was at the apartment. Uh, I may have said uh, that I know, or “I feel you didn’t mean to kill him”. Uh, I would say the gist of all his response was, “my lawyer told me not to talk, my lawyer told me not to talk”.[3]

 

[12]           He agreed that this evidence was false.

[13]           Other passages from White’s evidence at the pre-trial motions that might have been presented to him include the following:

From the pre-trial motions:

Q. Did you ever tell Ms. Mousseau that the accused had made inculpatory statements in this case?

A. I don’t think so, no.

Q. Is it possible that you said that?

A. He didn’t say anything to me, other than he didn’t wanna talk.[4] (highlighting added)

And:

Q. Did you ever have any intention through this whole process, to do anything other than give the crown a truthful and accurate response to the questions that were posed?

A. That’s all I ever had in my mind was doing the right response, giving the truthful answers.[5]

And:

Q. In your view, would it have been appropriate at that point, to go to Mr. Carambetsos and take a witness statement from him?

A. It wouldn’t of been a witness statement, it would’ve been a cautioned statement.

Q. So, why didn’t you simply do that, why didn’t you simply go and take a cautioned statement from him?

A. Because I’d have to tell him it’s his option that he doesn’t have to.

Q. And so I take it you would have to advise him of his right to counsel and caution him, is that correct?

A. Yes, sir.

Q. And when you were dealing with Mr. Carambetsos was it your belief that he had been given his right to counsel and cautioned?

A. It was, yes, sir.

Q. And was it your belief that he’d already had an opportunity to talk to his lawyer?

A. Yes, sir.

Q. And I take it his position at that point was, on advice of his counsel he didn’t wanna talk to you about the offence?

A. Yes, sir.

Q. And you indicated that the reason you wanted to talk to him was that there are two sides to every story?

A. I was gonna give him the opportunity to express his side of the story if he wanted to.

Q. What would you have done if he had given you information that in a very convincing way, led you to conclude that he was guilty of nothing?

A. Well, I, if he wanted to say anything, it would’ve been on videotape under caution and then we would have to review that and follow-up any leads that came out of it.

Q. And would any statement he made, good, bad or indifferent, have become part of the record of this particular investigation?

A. It would’ve, yes.[6]   (highlighting added)

 

[14]           This evidence was also obviously false.

 

V   The Statement of Heather Gunn to White and Favreau on October 4, 2000

 

[15]           Heather Gunn has made six statements of what she saw – to Lydia Harlos on October 4, 2000; to White and Favreau on October 4, 2000; to White on October 6, 2000; at the preliminary hearing on June 27, 2001; to Cst. K. Warren on August 26, 2003; and to Benson and Detective J. Matthews on January 13, 2004.

[16]           She said that she heard a thump. She looked up and saw a man across the street. That man went into the door leading into Maria Campenella’s apartment. He came back out the door and threw something in the area of the dumpster on the corner of Matheson Street South and Third Street South. He then went back through the door. She crossed the street and saw a person or a body in the area where the man threw something. She also referred to what she saw as ‘a body’ and ‘Max’. The person/body was located south of the electrical box. This is the structure mounted on top of a cement pad located two feet south of the wall of Lee’s Satellites where Lundgren and Zroback found the body. I will call this space the ‘slot.’

[17]           She went home. From the back window of her apartment, she saw a man walk down Matheson Street towards the person/body and then come back up Matheson Street towards the Bizzi-Bee, acting suspiciously by turning his head. He had a white peak cap on his head which was turned backwards. She thought that man was Danny Favreau. She went back to where the person/body was before the police came.  She thought that the person/body had been moved and robbed.

[18]           Lydia Harlos said that Heather Gunn told her that Danny Favreau was in the area. White made a note of Lydia Harlos saying this. Favreau made no notes. He did not remember Lydia Harlos saying this.  Favreau said at the preliminary hearing that Heather Gunn said that Danny Favreau was in the area, but he did not regard him as a suspect.  White had not made a note and had no recollection of Heather Gunn saying this.  At the pre-trial motions Favreau said that Danny Favreau was at first a suspect.  As soon as Heather Gunn said that Danny Favreau was in the area in the police car, he left the car.  He dispatched Ratchford to look for Danny Favreau. Ratchford looked for him in the apartment above the Bizzi-Bee.  He could not find him. The crown had not disclosed this information prior to Favreau giving evidence of it at the pre-trial motions in January 2003.

[19]           Ratchford confirmed in his evidence at the pre-trial motions that he did look for Danny Favreau in the apartment above the Bizzi-Bee.  He had no notes of doing this.  He said that he could not find him.  The crown had not disclosed that he had done this prior to Ratchford testifying at the pre-trial motions in January 2003. At about the same time that Ratchford said he looked for Danny Favreau, he dispatched some patrol officers to remove some drunks that were in the laneway between Second and Third Streets to the east of Matheson Street. He did have notes of this.

[20]           White and Favreau interviewed Maria Campenella.  Favreau said that after he learned from Maria Campenella that Justin Carambetsos had removed Max Kakegamic from her apartment he became convinced that it was Justin Carambetsos and not Danny Favreau who went through the door leading to her apartment.  From that point, he said that he was satisfied that Danny Favreau was not a suspect.

[21]           Favreau’s evidence at the pre-trial motions of what Heather Gunn said about seeing Danny Favreau is vague and contradictory. A sampling of this evidence is as follows:

Q. How long did the conversation last?

A. Uh, she had mentioned Danny Favreau’s name again, and when she did, uh, there was some other conversation, I stepped out of the vehicle and I spoke with Cst. Ratchford, so I don’t know what transpired after that.

Q. Well, at what point did Danny Favreau’s name come up?

A. Just prior to me stepping out of the vehicle.

Q. Well, what…

A. She, she had mentioned his name, saying that you know, Danny Favreau could been, it could’ve been Danny Favreau in the area, something like that.

Q. Do you mean to say that she was suggesting that the person she saw was Danny Favreau?

A. Yes.

Q. So, as soon as you heard her say that…

A. Yes.

Q. …you’re saying you stepped out of the Jeep?

A. Yes.[7]

And:

Q. Okay. So I don’t think I’ve had a, an answer to my question yet, which is, how did Dan Favreau get eliminated as a suspect?

THE COURT: Well, you know, we’ve gone around and round this a number of times and I’m going to ask it.  Where is Dan Favreau, where is he, he’s in the area, but where? Has there been any evidence linking this man Dan Favreau in the area, to this man that’s seen walking from the southeast corner to the middle door?

MR. GIBSON: Q: I understood this officer to be saying your impression was that Ms. Gunne was saying that was Dan Favreau.  Is that not right?

A.  I can’t recall her specific words, but when she mentioned Dan Favreau might’ve been in the area, Dan Favreau could’ve been in the area, I don’t know her specific words.

THE COURT: Yes, but in what area?

A.  In the area of, of Matheson Street.

THE COURT: Well, Matheson Street on that map, runs from Second Street, corner of, on the north and then it goes into First Avenue South where it changes name.  Where on Matheson Street?

A.  In vicinity of the 223 Matheson, Your Honour.

THE COURT: Well, is is, does Heather Gunne say or does she not say that this man that she sees going from the corner of Matheson Street 223, go and come back, does, does she say or does she not say that this man could be Danny Favreau?  Or do you know?

A. I don’t know, Your Honour, I don’t have that recall that she said specifically that that man, or that she identified that person as being Dan Favreau.  I don’t have that specific recall.  It’s just that he was in the area.  That’s my recall.

MR. GIBSON: Q. Well, you don’t recall exactly what she said but you say that when she said whatever she said, you jumped out of the Jeep thinking Dan Favreau was a suspect and went across the street to where Cst. Ratchford was and told him to go look for Dan Favreau, isn’t that right?

A.  That’s correct.  He may have been a witness as well.

Q. Well, and I asked you about that and you said he was a suspect…

A. Yes.

Q. ..and you regretted not telling us that earlier at the preliminary hearing.

A. Yes.

Q. So, you thought he was a suspect at that time when you got out of the Jeep, right?

A. As I said before, everyone’s a suspect I suppose, and I, I’m sorry didn’t use that terminology before.  I regret that now because there seems to be some confusion.[8]

 

[22]           Heather Gunn told White on October 6, 2000, testified at the preliminary hearing on June 27, 2001 and told Cst. Warren on August 26, 2003 that she saw a man on Matheson Street from her apartment acting suspiciously walking toward the body and away from the body.  These statements are set out in my ruling dated December 3, 2003.  She did not name him in the statement to White.  She did name him in her evidence at the preliminary hearing and in her statement to Warren.  The relevant portions of the statements are as follows:

October 6, 2000 to White:

White:  Right, okay. Um…did you see anybody else on the street that night?

Gunn:   The only person I saw, was the guy with the white p…hat like I told Mr…. Mr. Favreau.

White:  Right.

Gunn:   Had a white peaked hat on…

 

June 27, 2001 at the preliminary hearing

Mr. Gibson:   Q.  And you walk out your back door and you see a young person with a white peak cap?

Heather Gunn:  A.  Yeah.

Q.  Okay.  Now, you think that person was Danny Favreau?

A.  Yeah, I thought it was.

Q.  But you don’t think that now?

A.  I don’t know who it was.  I say it could of been Danny because I’ve seen Danny around at that, that time of night, quite a few times.  There’s lots of them out there that time of night.”

And:

Q.  Why did you think it was him?

A.   Well, just the way he walks, he has a funny walk.

Q.   And this person that you saw with the white peak cap, had that funny walk?

A.  Yeah.

 

August 26, 2003 to Cst. Warren:

KW:  Okay…uhhmm now when you look out your bedroom window how much can you see out there?

HG:    You can’t see very much.  You can’t see where the accident was.  You…I couldn’t do that but I could see if anyone was walking back and forth.  And the only person I saw walk back was Danny.

KW:  Okay.

HG:    That’s what I…I…uhh of course should not have said the person’s name because they are related to…is related to Donny… er Tom Favreau and I think Trevor…if I can recall right. Trevor came out and he said to Tom you’d better get your book in straight order because there is something not connecting here.

KW:  Okay…now how do you now (know) Danny Favreau?

HG:    He used to…we used to go… the whole lot of us used to go out for coffee and he was one of them and he can be an idiot when he wants to and that’s how I knew.

 

[23]           Michelle Boucher testified in the other suspect motion in October 2003 that Danny Favreau had a distinctive walk. She said the following:

Mr. Gibson:    Okay. Now, have you had opportunities, in the course of your acquaintance with Mr. Favreau, to watch him walk?

M. Boucher:   Oh yeah.

Q: Can you tell us about the way he walks?

A: Walks with, like, a limp, like he’s got somethin’ wrong with his legs. He had - - -

THE COURT: He has got something wrong or - - -

A: It looks like he, like, I’m not, I don’t think he does. It’s just his way of walking, like he walks the same all the time whether he’s drunk or sober. It’s just the way he walks. He doesn’t walk like I do. Like, it’s hard to describe. Like, I can’t walk like him and he’s kinda hunched over. Like, he brings his shoulders in forward. I could spot him in a crowd of 100 people just the way he - - - (page 17 transcript)

 

[24]           It must be noted that Favreau never says that Heather Gunn said in the police car on October 4, 2000 that she saw Danny Favreau walking to and from the body on Matheson Street and acting suspiciously from the back window of her apartment. Since Heather Gunn consistently without prompting told this to others – to White on October 6, 2000, to the court at the preliminary hearing on June 27, 2001, and to Warren on August 26, 2003, the defence submits that it defies belief that she did not also tell this to Favreau and White in the police car.

 

VI  The Mitchell Letter

 

 

[25]           Curtis removed Favreau as head of the CIB as a result of Mitchell’s letter dated July 17, 2001.  Curtis testified at the pre-trial motions that Favreau could get his job back, depending on the outcome of this case.  Part of Mitchell’s criticism of Favreau concerned the way that he dealt with the evidence from Heather Gunn implicating his nephew, Danny Favreau.  Paragraph 2 of that letter reads as follows:

Evidence came out at the preliminary hearing that Sgt. Favreau was aware that one ‘Danny Favreau’, his nephew, was reported leaving the scene heading north on Matheson Street, South at or about the relevant time of the homicide.  There did not appear to have been a concerted effort to investigate Danny Favreau’s whereabouts at the onset of the investigation and this raised the spectre at the preliminary hearing of bias and/or cover-up by the police.  This information should have been dealt with quickly; steps taken to avoid any potential conflict; and another lead investigator assigned to avoid the appearance that one family member was ‘covering’ for another.[9]

 

 

VII  Analysis

 

(i)  Credibility of White, Favreau, Ratchford and Jorgenson

 

[26]           The reasons White gave for not disclosing the exculpatory statement of Carambetsos to the crown or to the court are that he had an agreement with the accused to keep it confidential and he was uncertain of its admissibility.  White admitted in a hypothetical question that if he was asked what an accused said, notwithstanding his promise to him to keep what he said confidential, he would give the evidence.  He acknowledged that the situation was not at all analogous to an informer.  Clearly it is the crown whose advice he should seek on the admissibility of evidence and it is the judge who decides what evidence is admissible.  His role as an investigator is to relate the fruits of his investigation to his superiors.  As a witness, it is to answer the questions that are put to him truthfully.  The reasons that White gives are unacceptable.

[27]           White falsely represented to the crown attorneys that Carambetsos had not given a statement.  His evidence at the preliminary hearing and at the pre-trial motions to the same effect was false.  White said that he told Favreau and Ratchford that Carambetsos had given a statement to him. Jorgensen said that he told him and White confirmed this.  This is further confirmed by Jorgensen recording what White had told him in the case submission form to the lab compiled by him on October 14, 2000.  Favreau and Ratchford denied under oath before me that White told them that Carambetsos had made a statement to him on the morning of October 4. I do not believe this evidence. I find that this evidence of Favreau and Ratchford is false.

[28]           Favreau said at the preliminary hearing that although Heather Gunn said in the police car that Danny Favreau was in the area, he was not a suspect.  Now that I know of Danny Favreau’s criminal record and his propensity for violence against helpless men, I appreciate the significance of Danny Favreau being in the area and the ominous tone of the phrase “Danny Favreau was in the area”.  On January 29, 2003 in his evidence at the pre-trial motions, Favreau said for the first time that when Heather Gunn mentioned in the police car the name of Danny Favreau that he was a suspect.  He said that he immediately left the police car and dispatched Ratchford in an attempt to find him.  White said Favreau never left the police car while they were talking to Heather Gunn.  Ratchford confirmed in his evidence at the pre-trial motions that this happened.  He said that he looked for Danny Favreau in an apartment above the Bizzi-Bee.  This is where Michelle Boucher said that Danny Favreau lived for a time with her and Glen Wood between about September, 1999 and April, 2000.  Since Ratchford knew to look for him there, this suggests that Danny Favreau was a person whose whereabouts the police monitored.  Ratchford has no notes of doing this.  Favreau has no notes at all.  None of this was disclosed prior to the pre-trial motions.

[29]           Favreau said that he eliminated Danny Favreau as a suspect in his evidence when he learned from Maria Campenella that it was Justin Carambetsos who entered her apartment from the door on Matheson Street and removed Max Kakegamic from the apartment.  This required the quantum leap in logic that it was Justin Carambetsos who not only removed Max Kakegamic from the apartment but it was he who assaulted and killed him.  It was shortly after this that I have found that White told Favreau that Carambetsos told him that he did not assault Max Kakegamic and that he left him conscious and uninjured by him on Matheson Street. Ratchford has notes of dealing with some drunks near the crime scene at about the same time that he says he made a search for Danny Favreau, of which he has no notes. He would have the court believe that he makes notes about drunks but does not make notes about a very significant step in the investigation of a homicide. Mr. Gibson is likely right when he submits that Favreau, with Ratchford’s concurrence, has likely fabricated the evidence about the search for Danny Favreau. 

[30]           In my view, this evidence of Favreau and Ratchford cannot be accepted.

[31]           The evidence of Favreau, White and Ratchford has no credibility in these proceedings. I find with regret that I cannot accept anything that these three officers say unless it is corroborated by reliable, independent evidence.

[32]           In my ruling dated June 27, 2003, I made the following finding:

“[164]  In my view, the violation of these Charter rights of the accused was largely the result of ignorance of the law and inexperience. I do not see bad faith on the part of the police.”

[33]           I also said, “this is not to say that White is intentionally being untruthful” (para. 166) and that White “has shown an excess of zeal” (para. 166).  These findings cannot be sustained.

[34]           I found in my prior ruling that White did not have a subjective belief that Carambetsos had committed murder.  I also found that Cummine did not tell White in their conversation on October 4 at 5:30 a.m. to lay a charge of second degree murder.  Favreau testified that he met with Cummine on the morning of October 4 at the police station when they discussed the charge of second degree murder. I said, “Favreau may be confusing this meeting with subsequent meetings on the days that followed” (para. 166). This meeting never took place. Favreau was not confused. He was telling a falsehood. Mr. Gibson submits that White laid a charged of second degree murder which he knew could not be supported with a view to extorting a plea of guilty to the lesser charge of manslaughter. I have no direct evidence that this was what White was doing. In my view, there is abundant circumstantial evidence to support this proposition. It is very likely exactly what he was doing.

[35]           The same criticism cannot be made of Jorgenson’s credibility.  It was Jorgenson who told Mitchell of the meeting on October 10, 2002 of Favreau, White, Ratchford and himself, at which they discussed their responses to Carambetsos’ affidavit sworn September 12, 2002.  He said that he did not know that Favreau and White changed their statements after the meeting.  It was Jorgenson who recorded in his case submission dated October 14, 2000 to the lab the statement that White told him that Carambetsos made to White on October 4, 2000.  Jorgenson gave evidence at the trial as best he could of his recollection of receiving that statement.  But for Jorgenson, the events which have destroyed the credibility of Favreau, White and Ratchford would not be known.

[36]           In his evidence at the pre-trial motions on May 20, 2003, Mitchell said the following:

THE COURT: Well, how do you feel about that, that Jorgensen told you that there was a meeting but that he did not tell you that, that statements were changed?

A: I don’t know that Jorgensen knew. Uh, because my understanding is that White and Favreau went in and changed their statements, but I don’t know that Jorgensen knew. Jorgensen was uh, reproached, if I could use the term, uh, by at least the Deputy and maybe the Chief for uh, his communications with me. Umm…I may be, be using too strong language but I have a feeling they felt he was uh, like fifth column or a mole uh, to the Crown’s office and that they didn’t want him communicating with me. In fact, he told me that. You know we’ve got a uh, uh…I recall calling in on the, that, that untapped line and, and him getting the call and, and him telling me, “Look, I can’t, I can’t talk to you about uh, this case here, umm…because I’ve been told.” Umm…now that was probably to maintain team solidarity but uh, umm…I don’t think Jorgensen knew.

THE COURT: That the statements were changed?

A: No, I don’t think he knew. He’s, he’s been very upfront with me uh, in all my dealings with him.

 

[37]           It is a measure of the extent to which senior police officers in the Kenora Police Service misunderstood their proper role that a police officer who made proper disclosure to the crown attorney could be described by his fellow officers as a “mole”.

[38]           Mitchell said in his letter dated July 17, 2001 to Curtis the following:

“Your C.I. Management and quality control was deficient in the extreme.”

 

 

[39]           Mitchell did not know what I know.  He was wrong to focus solely on Favreau.  White and Favreau worked together to suppress exculpatory evidence about Carambetsos.  He also understated the problem.  The Criminal Investigation Management in the Kenora Police Services carried out by Favreau and White was more than deficient.  These officers were a force unto themselves.  The courts can sometimes tolerate police inexperience, blunders, mistakes and inefficiency.  The courts will sometimes make allowances for poor police work done in good faith.  What the courts cannot tolerate is police dishonesty.

[40]           Mitchell did not know all the facts.  He was right in sensing that immediate action was necessary to remove Favreau from his position.  I was wrong in suggesting otherwise.

 

   

(2)  Exclusion of the Boots

 

            (a)  Section 9

 

[41]           I held in my prior ruling that the police were required to have reasonable and probable grounds to arrest Carambetsos for manslaughter, that Carambetsos deposited Max Kakegamic in the slot, that Carambetsos assaulted Max Kakegamic, and that Max Kakegamic died from the injuries arising from the assault.  Storrey requires that the police have a subjective belief in these grounds and that their belief can be justified objectively. It is my view that Favreau and White were working as a team.  Ratchford followed their lead.  Jorgensen was working alone.  He took direction from Favreau and White.  After Favreau and White interviewed Maria Campenella, they met with Jorgensen on the street outside her apartment.  Jorgensen was prepared to conduct at that time a forensic examination of Maria Campenella’s apartment.  Favreau and White made a decision not to direct Jorgensen to enter Maria Campenella’s apartment for this purpose.  If Jorgensen had done so with Favreau and White, they could have pointed out to him the chair where Maria Campenella said that Max Kakegamic was sitting.  A blood stain on the chair was readily visible.  A halogen light was available at the police station and from the fire department, which was on the scene.  With the use of a halogen light, Jorgensen could have discovered bloodstains in the room where Max Kakegamic was sitting.  Maria Campenella said that there was no altercation between Carambetsos and Kakegamic before they left the apartment.  This was compelling evidence that Max Kakegamic was bleeding from injuries that he sustained before he became involved with Justin Carambetsos.  This prior bleeding was a possible source of the blood on the sidewalk outside the door to the apartment.  The blood trail started at the chair and not at the door leading onto the street.

[42]           White and Favreau assumed that Justin Carambetsos had deposited Max Kakegamic in the slot.  They made this assumption based on Heather Gunn’s statement that when she crossed the street she saw a body or a person on the corner and Zroback and Lundgren finding the body in the slot.  If they had questioned Heather Gunn on the morning of October 4, 2000 specifically where it was that she saw the body when she crossed the street, she could be expected to have told them what she told Benson and Matthews on January 13, 2004 (over three years and three months after the incident when, astonishingly, she was asked this crucial question for the first time) that the body was located outside the slot to the south of the electrical box.  She did say to Benson and Matthews that when she came back, the body was in the slot, that it had been moved one inch and that it was in the same place where she first saw it.  Obviously it is more than one inch from the location of the body to the south of the electrical box to where it was found in the slot.  This may be a figure of speech.  The crucial point is that when Heather Gunn first saw it, the person/body was located outside the slot.  It would take some care to pull the body into the slot.  There was no evidence that Justin Carambetsos ever came back to the body after he went to Maria Campenella’s apartment.  If it was Justin Carambetsos who originally deposited the body where Heather Gunn said that she first saw it, this means that someone else would have had to have moved the body into the slot after Justin Carambetsos left.  This undermines the police theory that Carambetsos was trying to hide the body.  It also supports the theory that Danny Favreau interfered with the body in an attempt to rob it.

[43]           White and Favreau made a decision to arrest Carambetsos for manslaughter immediately after they had spoken to Maria Campenella.  This is illustrated by White’s evidence at the pre-trial motions from the passage quoted in paragraph 15 of Mr. Gibson’s factum as follows:

Q.  All right, now at this point in time, Miss Campenella has not said anything to you about being aware Mr. Carambetsos using any violence on the as yet unknown individual who was discovered earlier in the night, right?

 

A.  Uh…all she told us was she heard Mr. Carambetsos wake him up, words were exchanged between the two, Mr. Carambetsos brought Mr. Kakegamic downstairs, opened the door I guess, she doesn’t know what happens after that, he returns, I think she advised the first time, maybe ten minutes later, he comes back, they do a search of the apartment, a walk through and then Mr. Carambetsos leaves after he makes sure she locks the doors behind him.

 

Q.  And it was on the basis of that conversation that you formed reasonable grounds to believe that Mr. Carambetsos had…

 

A.  The time frame…

 

Q.  Second degree murder?

 

A.   The timeframes, well, I didn’t say he committed second degree murder at that time.  We felt he was involved in the occurrence because of the timeframes fitting together.

 

Q.   Well, you were prepared to arrest him for second degree murder, were you not?

 

A. I, I think so, yeah.[10]

 

[44]           This decision was based on what Maria Campenella told them about Justin Carambetsos removing the intruder from her apartment.  They had a statement from Heather Gunn which appeared to show Justin Carambetsos dealing with a person/body in a callous manner.  It was based on the blood trail which they assumed led from the door onto the street to the body if Max Kakegamic.  It was also based on their assumption that Justin Carambetsos deposited the body where the police found it in the slot.    

[45]           These latter two assumptions would have been undermined by the location of blood in the room where Max Kakegamic was found and the location of the body where Heather Gunn first saw it.  The investigative steps to determine this were simple, would have taken little time and ought to have been done before a decision to arrest was made.

[46]           In light of the collapse of the credibility of White and Favreau, the reputation for violence that Carambetsos had with the police must be given greater weight in their decision to arrest Carambetsos before conducting a more thorough investigation.  The single incident that the police could cite to support that reputation was Carambetsos being a suspect in the assault of Billy Edwards, for which they did not have reasonable and probable grounds to arrest him.

[47]           The police had a subjective belief that Carambetsos had committed an assault on Max Kakegamic, which caused his death, but that subjective belief cannot be sustained on objective grounds to meet the Storrey test.

[48]           Having arrested Carambetsos, White received a statement from him as to what happened. In that statement, he said Max Kakegamic had blood on him when he discovered him, that he carefully escorted Max Kakegamic to the street, that he did not inflict injuries on him, and that when he left him, he was alive and able to speak clearly.  Carambetsos did not have a criminal record.  He was gainfully employed.  From everything that I have heard about him, he appears to have been a normal, law-abiding citizen.  If Carambetsos did assault Max Kakegamic, there were only two witnesses to the assault.  One was dead.  White said in his evidence that having received Carambetsos’ account of what had happened, an investigation would have had to have been done in any event.  This is true.  The police could not be expected to accept Carambetsos’ account and end their investigation.  In my view, however, the police had no right to detain Carambetsos while they did this.  As Cummine advised, they could keep him under surveillance until they at least had a cause of death.  They did not have reasonable and probable grounds to arrest him and having arrested him after receiving his statement, they did not have reasonable and probable grounds to detain him.  He should have been released as the police did in Holtam (paras. 9 and 29) and Stillman (para. 8) while the police continued their investigation.  In R. v. Duguay[11] the Ontario Court of Appeal held that a finding of arbitrary detention contrary to s. 9 of the Charter did not necessarily follow from a legal arrest. The court stated the following:

It cannot be that every unlawful arrest necessarily falls within the words “arbitrarily detained”. The grounds upon which the arrest was made may fall “just short” of constituting reasonable and probable cause. The maker of the arrest may honestly, though mistakenly, believe that reasonable and probable grounds for the arrest exist and there may be a basis for that belief. In those circumstances the arrest, though subsequently found to be unlawful, could not be said to be capricious or arbitrary. On the other hand, the entire absence of reasonable and probable grounds for the arrest could support an inference that no reasonable person could have genuinely believed that such grounds existed. In such cases, the conclusion would be that the person arrested was arbitrarily detained. Between these two ends of the spectrum, shading from white to gray to black, the issue of whether an accused was arbitrarily detained will depend, basically, on two considerations: First, the particular facts of the case, and secondly, the view taken by the court with respect to the extent of the departure from the standard of reasonable and probable grounds and the honesty of the belief and the basis for the belief in the existence of reasonable and probable grounds on the part of the person making the arrest. (p. 26)

 

[49]           In my view, the most important factor in the decision of the police to arrest Carambetsos was their belief that he was a violent person.  This could not form a valid basis for an arrest even if it were true.  On examination, the police could not offer any facts to support this belief.  Simple investigative steps would have undermined the reasons, apart from Carambetsos’ reputation, for thinking that Carambetsos assaulted Max Kakegamic and that he deposited the body where the police found it.  Proper investigation would have shown an entire absence of reasonable and probable grounds for the arrest.  The police did not have an honest belief in the grounds for his arrest.  This was demonstrated by their ignoring and suppressing his exculpatory statement.  I find that the police arbitrarily detained Carambetsos in violation of his rights under s. 9 of the Charter.  Even given a lawful arrest the crown has conceded that the police seized his boots without lawful authority contrary to s. 8 of the Charter.

 

(b)     Section 24(2)

 

 

[50]           I have determined that the police obtained the accused’s boots in a manner that infringed sections 8 and 9 of the Charter.  I must now determine if the evidence shall be excluded.  That depends on whether the accused has established on a balance of probabilities “having regard to all the circumstances” that the admission of the evidence in the proceedings “would bring the administration of justice into disrepute”.

[51]           The factors that I must take into account cited in R. v. Collins[12] were summarized in R. v. Jacoy[13] as follows:

First, the court must consider whether the admission of evidence will affect the fairness of the trial. If this inquiry is answered affirmatively, “the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded” [Collins, supra] (at p. 19 C.C.C., p. 284 S.C.R.). One of the factors relevant to this determination is the nature of the evidence; if the evidence is real evidence that existed irrespective of the Charter violation, its admission will rarely render the trial unfair.

 

The second set of factors concerns the seriousness of the violation. Relevant to this group is whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter violation.

 

Finally, the court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissible.

 

 

[52]           The boots are non-conscriptive evidence.  They exist independently of any participation by the accused.  Their admission into evidence would not affect the fairness of the trial.

[53]           The circumstances include the following:

-Seizure of Carambetsos’ boots while the police are detaining him as evidence of his committing an offence for which they lack reasonable and probable grounds that he committed.

 

-There was no need to detain Carambetsos for security reasons or to preserve evidence.

 

-Carambetsos gives a detailed reasonable explanation which, if true, means that he is totally innocent.

 

-That explanation included a statement that Max Kakegamic had blood on him in Maria Campenella’s apartment before Carambetsos laid hands on him.

 

-This explanation could easily have been investigated by examining the apartment which, hindsight shows, would have verified this.

 

-Carambetsos’ statement is not passed onto the crown by White or by Favreau, who knew of it and who is head of the investigation.

 

-Both officers deny in court that Carambetsos made a statement.  White concedes when he has no alternative that his evidence was false.  Favreau’s evidence is obviously false.  White and Favreau had evidence that night prior to Carambetsos’ arrest of Danny Favreau, Sergeant Favreau’s nephew, a man with a criminal record for theft, acting suspiciously in the area of the body – the man going through the door as Tom Favreau stated Heather Gunn may have said or as Heather Gunn said later a man she saw from her apartment acting suspiciously in the area of the body.  They ceased investigating that man after learning of the involvement of Justice Carambetsos, notwithstanding that he denied committing the offence.

 

 

[54]           The police did not act in good faith. They seized the accused’s boots while he was being unlawfully detained. They committed multiple breaches of the accused’s Charter rights. The violations of the accused’s rights are very serious. The question then is whether exclusion of the evidence would result in the administration of justice being brought into greater disrepute than its admission.

[55]           In Collins Justice Lamer, as he then was, stated that evidence ought not to be excluded pursuant to s. 24(2) if it resulted from police misconduct which brought the administration of justice into disrepute.  It was to be excluded if its admission into evidence would bring the administration of justice into further disrepute.  He stated:

It is whether the admission of the evidence would bring the administration of justice into disrepute that is the applicable test. Misconduct by the police in the investigatory process often has some effect on the repute of the administration of justice, but s. 24(2) is not a remedy for police misconduct, requiring the exclusion of the evidence if, because of this misconduct, the administration of justice was brought into disrepute. Section 24(2) could well have been drafted in that way, but it was not. Rather, the drafts of the Charter decided to focus on the admission of the evidence in the proceedings, and the purpose of s. 24(2) is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings. This further disrepute will result from the admission of evidence that would deprive the accused of a fair hearing, or from judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies. It will also be necessary to consider any disrepute that may result from the exclusion of the evidence. It would be inconsistent with the purpose of s. 24(2) to exclude evidence if its exclusion would bring the administration of justice into greater disrepute than would its admission. Finally, it must be emphasized that even though the inquiry under s. 24(2) will necessarily focus on the specific prosecution, it is the long-term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice which must be considered.  (p. 16-17) (highlighting added)

 

 

The concept of excluding evidence where its admission would constitute “judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies” which produced it is a continuing theme of the cases.  This evidence is important evidence.  The ridges on the toe of the accused’s boots have a symmetry with the ridges on the deceased’s neck in the area of the neck where the pathologist says he suffered a blow that caused his death.  The crown does have other evidence.  There is the evidence of Heather Gunn.  They have other eyewitness evidence of the accused dragging a man down Matheson Street and depositing him around the corner of a building and of him throwing something in the direction of the body.  They also have evidence from some of the same people that he said that he struck the man, that he had blood on his pants from dragging the man and that he did not think that he had killed him.

[56]           What I must balance is risking judicial condonation of police misconduct by admitting the evidence which the misconduct produced against weakening, but not defeating, the crown’s case by excluding it.  I also must take into account other serious breaches of the accused’s rights as found in my prior ruling - failing to advise him of his right to counsel, contrary to s. 10(b), violating his right to silence, contrary to s. 7, and detaining him on a charge of murder without any grounds, contrary to s. 9.

[57]           In Collins the police grabbed the accused by the throat and wrestled her to the ground on suspicion that she had heroin in a balloon in her mouth.  She had nothing in her mouth but she did have a balloon containing heroin in her hand.

[58]           In R. v. Greffe[14] the police had information that the accused was bringing heroin into the country.  They did not have reasonable and probable grounds to arrest him on the drug charge.  They did arrest him on unpaid traffic tickets at the airport.  Under the supervision of the police, a physician found a quantity of narcotics inside the accused by conducting a rectal search.  The accused was charged with importing and possession of heroin for the purpose of trafficking.  The trial judge excluded the evidence and the accused was acquitted. In upholding the trial judge, Justice Lamer, as he then was, speaking for the Supreme Court of Canada stated the following:

It is imperative that the court, having regard for the long-term consequences of admitting evidence obtained in these circumstances, dissociate itself from the conduct of the police in this case which, always on the assumption that they merely had suspicions, was a flagrant and serious violation of the rights of the appellant.   (p. 192)

And:

The breaches of the appellant’s Charter rights were not isolated errors of judgment by the police, but rather were part of a larger pattern of disregard for the appellant’s Charter rights. (p. 192)

And:

In short then, this case can be described as one where the seriousness of the cumulative effect of the Charter violations militates in favour of excluding the evidence.

I say this in full recognition of the fact that the evidence recovered was real evidence that existed irrespective of the Charter violations, and whose admission therefore would not negatively affect the adjudicative fairness of the appellant’s trial. It must be recalled, however, that in addition to the consideration of a fair trial, the court must also consider whether by admitting the evidence it would be condoning unacceptable conduct by the police. (p. 193)

 

[59]           In her dissenting judgment in Stillman, Justice McLachlin stated the following:

Section 24(2) introduces a balancing process. The judge must consider how admission of the evidence would impact on the repute of the administration of justice. Would its use be so unfair to the accused or amount to condonation of police conduct so reprehensible that the respect for justice would be diminished? The judge must then go on to consider the effect of the exclusion of the evidence on the repute of the administration of justice and weigh this against the disrepute that may inure from the admission of the evidence. In the end the judge must ask which will better serve the repute of the system of justice on the particular facts of the case – admission or exclusion? As one scholar puts it:

 

Before deciding to exclude evidence, a court should weigh any disrepute to the administration of justice that might result from the exclusion itself. It would not be consistent with the purpose of s. 24(2) to exclude evidence where the act of exclusion would bring the administration of justice into greater disrepute than would the admission of the evidence. Thus evidence essential to substantiate a charge, particularly a serious one, should not be excluded where the breach of the Charter is trivial and the admission of the evidence would not result in an unfair trial.   (p. 406-407)

 

 

[60]           In this case, the charge is a serious one.  The evidence in question is not necessary to substantiate the charge, although it is important and its admission would not result in an unfair trial.  The breach of the Charter is serious, particularly in the context of multiple breaches.

[61]           In my view, in all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.  The accused’s boots will be excluded from evidence.

 

 

            (3)  The Stay Application

 

 

(1)  Was There a Breach of Section 7 and an Abuse of Process?

 

[62]           It is the role of the police to investigate impartially.  This was articulated in a passage from the Martin Report quoted by the trial judge in R. v. Regan[15] as follows:

The police, as criminal investigators, are duty bound to focus on objectively exploring leads that will ultimately provide reasonable and probable grounds for charging a person as the perpetrator of the criminal act in question. The emphasis, of course, is on assembling evidence, assessing it dispassionately, and making responsible charging decisions based on that assessment.

 

[63]           The decision of the trial judge to stay the charges in Regan was ultimately overturned by a divided Nova Scotia Court of Appeal [(1999) 137 C.C.C. (3d) 449] and by a divided Supreme Court of Canada [(2002) 161 (3d) 97]. There can be no doubt, however, about the accuracy and authority of this statement.

[64]           The role of the crown has never been better stated than the frequently quoted passage from the decision of Rand, J. of the Supreme Court of Canada in R. v. Boucher[16] at page 70 as follows:

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 the 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 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.

 

[65]           The role of the police in the disclosure process was set out in the Martin Report as follows:

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. The principle has for some time been well recognized and put into practice by police forces across the province. 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]…” The pre-existing duty on the part of the police to provide full disclosure to Crown counsel is as important as it is uncontroversial. In most circumstances, the police are the principal source of all information that subsequently becomes evidence in a criminal prosecution. The police, as the investigative arm of the state, have the primary responsibility for acquiring such evidence. However, it is Crown counsel who must conduct the prosecution. Crown counsel cannot do so effectively or responsibly without being apprised of all that is relevant. Material that assists an accused may be particularly important, as Crown counsel must prepare to deal with such material in court. Alternatively, material favourable to the accused may lead Crown counsel to withdraw the charge, or require further investigation. Police disclosure to the Crown is also important in that it allows Crown counsel to discharge his or her constitutional obligation to then disclose all relevant information to the accused… (para. 1.1)

 

[66]           Justice Stayshyn interpreted the Police Services Act as follows:

The duty of a police officer in the disclosure process is reflected in section 1(c) of the Code of Offences of the Police Services Act, which provides:

 

A chief of police or other officer commits an offence against discipline if he or she is guilty of:

 

(1)(c)  Neglect of duty, that is to say, if her [sic] or she,…

 

(vii)  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.[17]

 

 

[67]           The Criminal Code states the following:

603.  Right of accused - An accused is entitled, after he has been ordered to stand trial or at his trial:

 

(a)    to inspect without charge the indictment, his own statement, the evidence and the exhibits, if any.

 

[68]           Justice Whealey in R. v. Rajalingam[18], aptly expressed the principle of justice on which this section of the Criminal Code is based as follows:

The accused person may know very well what he said to police; but he is entitled to know what the police will say he said.  A statement is often the centre-piece of a prosecution.  It assumes no less importance in the range of material to which an accused is entitled by way of disclosure. (para. 6)

 

 

[69]           Justice Stayshyn in Greganti found further appellate authority for the relationship between the crown and the police as follows:

1p  I note that in R. v. T.(L.A.) (1984), 84 C,C,C, (3d) 90 at p. 94, Lacourciere J.A. held as follows in discussing the police requirement:

 

There is a duty on the Crown to make full disclosure and, accordingly, the Crown has a duty to obtain from the police--and the police have a corresponding duty to provide for the Crown--all relevant information and material concerning the case.

 

1q  I further note that in R. v. Gagne et al 131 C.C.C. (3d) (1998) 444 Otis J.A. of the Quebec Court of Appeal held as follows at p. 455:

 

The fact that it is the police, and not Crown counsel, who has the information sought does not stand in the way of the Crown’s duty of disclosure.  This duty of disclosure applies equally to the police and the prosecution (R. v. Antinellow (1985), 97 C.C.C. (3d) 126 (Alta. C.A.).  The Crown has the duty of obtaining from the police the information which must be disclosed to the defence and the police have the corresponding duty of providing the Crown with this information (R. v. V.(W.J.) (1992), 72 C.C.C. (3d) 97 (Nfld. C.A.); R. v. T. (L.A. (1994) s. 84 C.C.C. (3d) 90 (Ont. C.A.)).

 

[70]           The police must disclose the fruits of their investigation to the crown.  This did not happen in this case.  It is the crown that bears the ultimate responsibility. As Justice Stayshyn put it in Greganti, based on the facts of the case before him:

161  In these proceedings the RCMP failed to even make their prosecutorial team aware of the 1624’s (the continuation reports).  I know of no authority creating a secret police state permitting the withholding of vital defence disclosure.  My sense of the later conduct of such disclosure of 1624’s by the prosecution is that they equally are unable to comprehend the improper withholding of material.

 

162  It is clear, however, that the sins of the police are the sins of the prosecution.

 

 

[71]           The right of the accused to full, complete and early disclosure of its case to the accused is the theme of R. v. Stinchcombe[19], a decision of the Supreme Court of Canada released in 1991.  I would have thought that this would have been well known to the police by now.  Apparently, it is not, at least by some senior officers in the Kenora Police Service.

[72]           The right of the accused to full disclosure of statements made by him to the police is particularly important.  Those passages in Stinchcombe cited by Mr. Gibson in his factum are directly applicable in this case.  They bear repeating and are as follows:

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 Marshal, 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 therefore, notwithstanding that the Crown does not intend to introduce such material or information as evidence;

 

(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. (emphasis added) (p. 9 – 10)

 

And:

 

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 Piche v. The Queen [1970] 4 C.C.C. 27 at p. 37, 11 D.L.R. (3d) 700, [1971] S.C.R. 23; R. v. Rothman (1981), 59 C.C.C. (2d) 30 at pp. 48-49, 121 D.L.R. (3d) 578, [1981] 1 S.C.R. 640.  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. (emphasis added) (p. 14-15)

 

 

[73]           The failure of the police to disclose is in itself a breach of the accused’s rights pursuant to section 7 of the Charter without the showing of prejudice.  This was stated by Justice Sopinka speaking for the Supreme Court of Canada in R. v. Carosella[20] as follows:

[26] …The entitlement of an accused person to production either from the Crown or third parties is a constitutional right.  See R. v. Stinchcombe, [1991] 3 S.C.R. 326 68 C.C.C. (3d) 1 (S.C.C.), and R. v. O’Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, 130 D.L.R. (4th) 235 (S.C.C.).  Breach of this right entitles the accused person to a remedy under s. 24(1) of the Charter.  Remedies range from one or several adjournments to a stay of proceedings.  To require the accused to show that the conduct of his or her defence was prejudiced would foredoom any application for even the most modest remedy where the material has not been produced.  It would require the accused to show how the defence would be affected by the absence of material which the accused has not seen.

 

[27]  This Court has consistently taken the position that the question of the degree of prejudice suffered by an accused is not a consideration to be addressed in the context of determining whether a substantive Charter right has been breached.  The extent to which the Charter violation caused prejudice to the accused falls to be considered only at the remedy stage of a Charter analysis…

 

 

[74]           I set out the test for finding an abuse of process in my ruling dated June 27, 2003.  To repeat, it has never been better expressed than it was by Chief Justice Dubin in R. v. Young[21] as follows: 

…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 community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings.  It is a power, however, of special application which can only be exercised in the clearest of cases. (p. 31)

 

[75]           In R. v. La[22], the accused was charged with sexual assault. The young complainant had been interviewed by the police in relation to the application by the crown for a secure treatment order connected to her life as a prostitute. The police lost the tape recording of the interview. The officer who lost the tape was not involved in the prosecution of the sexual assault charge. The Supreme Court of Canada upheld the Alberta Court of Appeal in overturning a stay issued by the trial judge. In the course of his judgment, Justice Sopinka said the following:

The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown’s obligation to disclose the material will, typically, fall into this category [abuse of process]. (para. 22)

 

[76]           In R. v. Court[23], Justice Glithero after an exhaustive review of the case law, said the following:

I am very much aware that the Supreme Court in Carosella emphasized that the deliberate destruction of the records for the purpose of removing them from consideration in court was an important factor. Deliberate state action designed to or aimed at removing relevant evidence is unacceptable. (p. 297)

 

[77]           White deliberately withheld the statement of Carambetsos from the crown attorney.  Favreau, as case manager, was a full participant with White in withholding this information from the crown.  Undoubtedly the crown attorney would have disclosed it immediately if he had known about it.  The crown attorney did not disclose it because he did not know about it.
Nevertheless, the crown generally, which includes the police, must accept responsibility for its non-disclosure.  White did not record it or make a note of it.  He has no independent recollection of it.  Although Jorgensen’s recording of what White told him may be reasonably accurate, the statement is lost in the form that it was originally made.  It should have been videotaped or at a minimum, carefully recorded in White’s notes.  The conduct of White and Favreau constitute deliberate state action aimed at the exclusion of relevant evidence from the judicial process.  In my view, it constitutes both a breach of section 7 and an abuse of process.

[78]           For Heather Gunn, her sighting of Danny Favreau acting suspiciously from her apartment while she was waiting for the police, combined with her observation when she returned to the corner of Matheson and Third Streets before the police came that the body had been moved and robbed, was very significant. Clearly what she is saying is, from her knowledge of Danny Favreau she thinks that he robbed and moved the person/body that she saw. In my opinion, it is very likely that Heather Gunn told White and Favreau in the police car that she saw Danny Favreau acting suspiciously on Matheson Street from her apartment. 

[79]           Favreau said for the first time on January 29, 2003 in his evidence at the pre-trial motions that she made a reference to Danny Favreau that he took seriously enough to assign Ratchford immediately to search for him.  Ratchford said at the pre-trial motions that he did this unsuccessfully.  He did not have a note of it.  Favreau has no notes.  In my view, this evidence of Favreau and Ratchford about Danny Favreau is likely fabricated.  If it did happen, it was not recorded or disclosed.  This conduct of Ratchford and Favreau is also deliberate state action aimed at removing relevant evidence from the judicial process.  Likewise, it constitutes a breach of section 7 and an abuse of process.

 

(2)  Remedy

 
(a)  Clearest of Cases

 

[80]           Carosella was a case in which the accused was charged with sexual assault. A publicly funded counseling agency had destroyed the records of an interview with the complainant for the purpose of making them unavailable to the court. Justice Sopinka noted the high threshold that the accused must meet before being entitled to a stay. He said the following:

A judicial stay of proceedings has been recognized as being an extraordinary remedy that should only be granted in the ‘clearest of cases.’ In her reasons in O’Connor, L’Hereux-Dubé J. stated (at para. 82) that:

It must always be remembered that a stay or 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. (para. 52)

 

[81]           He found that there was no ‘alternate remedy that would cure the prejudice to the ability of the accused to make full answer and defence.’ (para. 55)

[82]           He also stated the following:

Confidence in the system would be undermined if the administration of justice condoned conduct designed to defeat the processes of the court. The agency made a decision to obstruct the course of justice by systematically destroying evidence which the practices of the court might require to be produced. This decision is not one for the agency to make. Under our system, which is governed by the rule of law, decisions as to which evidence is to be produced or admitted is for the courts. It is this feature of the appeal in particular that distinguishes this case from a lost evidence case generally.  (para. 56)

 

[83]           Justice L’Hereux-Dubé, in O’Connor, stated:

…a finding of flagrant and intentional Crown misconduct may make it significantly more likely that a stay or proceedings will be warranted.  (para. 79)

 

 

            (b)  The Test in Leduc and Tobiass

 

[84]           In R. v. Leduc[24], Laskin J.A. stated the test for a stay of proceedings as follows:

Prosecutorial misconduct, such as willful non-disclosure, standing alone does not warrant a stay. To justify a stay, the misconduct must either prevent a fair trial or undermine the integrity of our justice system. Most cases where a stay is ordered fall into the former category. A small number of cases – “exceptional” or “relatively very [page 360] rare” cases – fall into the latter or “residual” category, where trial fairness can be preserved by a remedy short of a stay, but the integrity of the justice system cannot. In either category of case,

… a stay of proceedings will only be appropriate when two criteria are met:

(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 the prejudice…”

…where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of the stay…a third criterion is considered. This is the stage where a traditional balancing of interests is done: “it will be appropriate to balance the interest that would be served by the granting of a stay of proceedings against the interest that society has in having the final decision on the merits”. [See R. v. Regan, at 122-123, citing Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, 118 C.C.C. (3d) 443.]    (para. 42)

 

           

(c)  The Carambetsos and Heather Gunn Statements - October 4, 2000

 

                  Justin Carambetsos

 

[85]           It is the position of the defence that if the accused testifies he may state that he told the police when he was first arrested what he has told the jury and he may also call the police to confirm this.  Since White does not have an independent recollection of what he said and did not record what he said, his ability to make full answer and defence is impaired.  In R. v. Campbell[25] the trial judge permitted the accused to tell the jury that he had told a customs officer what he told them.  The trial judge would not permit the accused to call the customs officer to confirm his evidence.  Martin J.A. held that the trial judge was correct in refusing to permit the accused to call the customs officer and erred in permitting the accused to testify as to what he told the customs officer.  Justice Martin stated the following:

For the reasons indicated, I am unable to say that the learned trial Judge erred in holding that the exception arising from an allegation of recent fabrication did not arise, or, at all events, that he wrongly exercised his discretion in so holding. Having held that the exception was not applicable, he ought logically to have also held that the appellant was precluded by the same rule from narrating his previous statements in giving evidence. (p. 21)

 

[86]           Academic papers have been published and judgments have been written suggesting that the law should be reformed to permit an accused to state what he told to a third party and to call the third party to prove it.  I know of no authority which has adopted this principle when the prior statement did not fall into an exception.  If the crown alleges recent fabrication (see Campbell, page 18) or if the crown relies on the demeanour of the accused (see R. v. Liu[26]), evidence of prior consistent statements of the accused may become admissible through him and through the parties to whom he made the statements.  The crown states that it will not rely on either recent fabrication or demeanour evidence.

[87]           It is easy enough for allegations of recent fabrication and for demeanor evidence to creep into the proceedings inadvertently.  Given the position taken by the crown on the evidence that it intends to introduce, I agree with the crown that this argument is premature.  

 

Heather Gunn

 

[88]           The defence argues that Heather Gunn must have told White and Favreau in the police car on the morning of October 4, 2000 that she saw from her apartment Danny Favreau walking towards the body and away from the body acting suspiciously.  He states that he should be in a position to call this evidence if she testifies to the contrary as evidence of its truth.  He cannot call it because the police have suppressed it.  Favreau has said that she said something that she could not have said.  Favreau has fabricated the evidence to rehabilitate himself with Curtis by meting the criticism levied against him by Mitchell.  He relies on the principle set out in R. v. Swanston[27] by the British Columbia Court of Appeal, which was adopted by the Ontario Court of Appeal in R. v. Languille[28].  In Swanston, the complainant had identified the accused in a police
lineup earlier in the investigation and at the preliminary hearing.  He could not identify him in the prisoner’s box at trial.  The crown was permitted to lead evidence for its truth of the prior identification.  The crown’s position is that Heather Gunn may testify that she did tell Favreau and White in the police car what the accused thinks she must have said.  If she does not, she may be cross-examined on prior statements.  In any event, Heather Gunn knew Danny Favreau.  He has a distinct walk which she can recognize.  Since she knows him, she can testify to whether or not she saw him.  The analogy in Swanston is an imprecise one.  In any event, it is premature to raise these arguments until she testifies.  Again, I agree with the crown on this point.


 

(d)  Case Against Danny Favreau

 

 

[89]           There is substantial evidence of what Justice Carambetsos likely did with Max Kakegamic on the morning of October 4, 2000.  He removed him from Maria Campenella’s apartment, took him downstairs and out the door onto Matheson Street.  He dragged him down Matheson Street and left him at the corner of Third Street.  He retrieved Max Kakegamic’s shoes and duffle bag from inside the door on the street.  He threw these items from a point on Matheson Street towards Max Kakegamic.  He returned to Maria Campenella’s apartment, where he stayed briefly.  He then went back to Hap’s bar.

[90]           After Justin Carambetsos went back to Hap’s bar and before the police came, Heather Gunn has said several times that she saw Danny Favreau walking down Matheson Street towards the person/body and then walk up Matheson Street away from the body.  He was wearing a white peaked cap with the cap turned backwards on his head.  As he was walking up Matheson Street he kept looking behind him in a suspicious manner.  Danny Favreau has a criminal record for theft.  Max Kakegamic died as a result of a blow to the neck, which ruptured a vertebral artery.  Death would follow quickly from this assault.  Danny Favreau has a propensity for doing the same kind of act that killed Max Kakegamic.  In the fall of 1999 Michelle Boucher witnessed Danny Favreau kicking a man who was passed out in the laneway at the corner of Matheson Street between Second Street and Third Street. He later boasted to her that he had robbed the man. On September 21, 2001 he committed a sexual assault on an unconscious man with a weapon.

[91]           Heather Gunn said that when she first saw the body it was located south of the electrical box.  The police found it in the slot.  The theory of the defence is that Danny Favreau, in the intervening period in an attempted robbery, kicked Max Kakegamic in the neck and dragged the body into the slot.  In doing so, it was Danny Favreau who caused his death.  In my view, this theory has an air of reality. It could well be true.

 

            (e)  Failure to Investigate Danny Favreau

 

 

[92]           I think it is likely that Heather Gunn did tell White and Favreau what she said later about seeing Danny Favreau.  When White questioned Justice Carambetsos at the police station he told him that he did not assault Max Kakegamic.  He gave him a detailed explanation of what happened.  White ignored this.  He made no record of it.  If Heather Gunn did not tell White and Favreau on the morning of October 4 about her observations of Danny Favreau, she did tell White on the morning of October 6. It is recorded on videotape. Favreau, White, Ratchford and Jorgensen met with Cummine on the afternoon of October 6. Favreau was the case manager, White was the lead investigator. Favreau and White had a duty to tell Cummine what Carambetsos said.  They did not do so. If they had, Cummine would certainly have directed them to investigate thoroughly Danny Favreau’s potential involvement.  Herein lies part of the mischief of the police not passing on to the crown the fruits of their investigation. The supervision of the police by the crown is another check in the system.  White and Favreau should have released Carambetsos on the morning of October 4 after receiving his statement and launched an investigation of both Danny Favreau and Justin Carambetsos.  They were the two persons who had opportunity to assault Max Kakegamic and cause his death.  Each had reason to do so.  Justin Carambetsos could have done so gratuitously, treating Max Kakegamic as a piece of garbage.  This would have been consistent with what witnesses saw him do.  Danny Favreau could have done so in an attempted robbery.  This would have been consistent with what the police knew about him, given his criminal record.  It is also consistent with his behaviour, witnessed by Michelle Boucher about one year prior.

[93]           Danny Favreau should have been interviewed by the police on October 4.  He was not interviewed by the police until October 13.  He said that he was in Winnipeg on October 4 with Michelle Boucher and Glen Wood.  Michelle Boucher was interviewed.  She said that she was in Winnipeg on the weekend of October 6 with Danny Favreau and Glen Wood.  This contradicted Danny Favreau’s alibi.  However, the police did not need to interview Michelle Boucher to know that Danny Favreau’s statement that he was not in Kenora on October 4 was false. Heather Gunn saw him on Matheson Street. She said that she knew him and that he had a distinctive walk.  Michelle Boucher said that he had a distinctive walk. The police knew Danny Favreau.  He was Tom Favreau’s nephew.  He was in my courtroom early in the week of December 1, 2003. One side or the other had him under subpoena.  It was decided not to call him as a witness and he was released.  I watched him as he walked out of the courtroom for a distance of perhaps 40 feet.  His back was towards me. I noticed that he has a very distinctive walk. As he walks, the lower part of his body sways from side to side.  I take judicial notice that he has a distinctive walk. I think that it is highly likely that Danny Favreau was on Matheson Street in the City of Kenora early in the morning of October 4 acting as Heather Gunn said he was acting. The police were derelict in their duty in not investigating him. They could easily have found him, picked him up and interviewed him. If they had interviewed him, they could be expected to put some pointed questions to him, including the following:

1.     Were you on Matheson Street shortly after midnight this morning?

 

2.  Did you walk down Matheson towards Third Street and then walk up Matheson Street towards Second Street?

 

 

[94]           If the answer to either of these questions was no, it could have been pointed out to him that a witness observed him.

3.  Did you see a person/body on the corner of Matheson and Third Street?  Where was it located?

 

4.  Did you interfere with the body?  Rob it? Kick it?  Move it into the slot?

 

5.  What kind of footwear did you have on?  Are those the same shoes that you have on now?

 

6.  Would you mind if we kept your footwear for testing?

 

7.  Are there any marks on your hands or knuckles?

 

8.  Where do you live and who are you living with?  Did you tell your roommate where you were and what you were doing this morning? 

 

 

We know from the evidence of Michelle Boucher that Danny Favreau assaulted a man in her presence and later spoke freely about it to her.  If Danny Favreau did assault and rob Max Kakegamic on the morning of October 4, 2000, it is likely that he would have spoken about it to others, who could have been interviewed.

 

 


            (f)  The First Two Branches of the Test in Tobiass

 

 

[95]           The evidence against Justin Carambetsos is circumstantial.  It is of some weight.  He can defend the charge by attempting to weaken the evidence of crown witnesses through cross-examination.  He can get into the witness box and deny the charge. He can also introduce what evidence there is that Danny Favreau killed Max Kakegamic. The most cogent evidence of whether Danny Favreau did it or not would come from an interview of him, recorded on videotape by the police within hours or, at a minimum, days of the death of Max Kakegamic and follow up investigation. This was not done. The reason it was not done immediately was because the police chose to ignore any evidence other than evidence which supported their theory that Justin Carambetsos did it.  The reason that it did not happen after the meeting with the crown on the afternoon of October 6 was because Favreau and White ignored their constitutional duty to tell the crown about it.

[96]           On March 4, 2004 three years and five months will have passed since the death of Max Kakegamic. It is too late. From what I know of the character and lifestyle of Danny Favreau, I doubt that he would admit any involvement with the body of Max Kakegamic. If he did have such involvement it may be that he would not remember.

[97]           In my view, the defence has met the first two branches of the test in Tobiass - perpetuation of the abuse through the conduct of the trial, and no other remedy reasonably capable of remedying the prejudice.

 


(g)  Institutional Breakdown

 

 

[98]           In R. v. Bero[29] the accused was charged with impaired driving causing bodily harm.  There was an accident in which the accused and a passenger were thrown clear of the vehicle.  The question was who was the driver.  The passenger said that the accused was the driver.  The passenger was injured.  If the passenger was telling the truth there would be evidence of his injuries on the passenger side.  The police inadvertently permitted the vehicle to be destroyed before the defence could have it examined.  The trial judge denied an application for a stay before the trial commenced.  Doherty J.A. held that the trial judge should have reserved his decision on the stay until he had heard the evidence.  This would permit him to better assess the degree of prejudice to the accused caused by the destruction of the vehicle.

[99]           The trial judge also prevented the accused from asking the investigating officer what a forensic examination of the vehicle could have disclosed.  Doherty J.A. held that the trial judge ought to have allowed this question.  The answer could be used by the jury in determining whether the crown had met the burden of proof on it.  In relation to whether or not a stay was an appropriate remedy, Doherty, J.A. stated the following:

The integrity of the judicial process will generally be put at risk where the conduct of the state involves a deliberate attempt to compromise an accused’s ability to make full answer and defence, otherwise undermines the fairness of the trial process or deliberately frustrates the court’s ability to reach a proper verdict: R. v. Carosella (1997), 112 C.C.C. (3d) 289 (S.C.C.) at 310-312.

 

The prosecution’s failure to preserve the vehicle so as to give the defence a reasonable opportunity to examine it is troubling in that it suggests that despite repeated judicial pronouncements, the preservation of evidence, which while not helpful to the prosecution is relevant in the Stinchcombe sense, is still not engrained in the prosecution psyche. I cannot, however, conclude on this record that the failure to preserve the vehicle demonstrates a systemic disregard for the prosecution’s obligation to preserve relevant evidence. Nor is there any suggestion that the prosecution acted with a malevolent motive. In these circumstances, permitting a trial on the merits would not do irreparable damage to the integrity of the judicial process.

 

I realize that some will argue that the prosecution will only take its duty to preserve relevant evidence seriously if courts refuse to permit prosecutions to proceed where that duty has been ignored. The force of that argument cannot be denied. Judicial remedies must, however, be responsive to the material placed before the court in a particular case. The case may come when the record supports the conclusion that the destruction of relevant evidence not helpful to the prosecution reflects an institutional disregard for the prosecution’s obligation to preserve all relevant information in its possession. In such a case, a stay may well be the appropriate remedy. This is not, however, that case.  (highlighting added)

 

 

[100]       In my view, in this case the record does show “a systemic disregard for the prosecution’s obligation to preserve relevant evidence”. The process of full disclosure mandated by Stinchcombe will only take place if the police and the crown both fulfill their functions in good faith.  If the police do not make full disclosure to the crown, then the crown cannot perform its function in making full disclosure to the defence.

[101]       Mr. Gibson discovered the statement given by Carambetsos to White by happenstance. White had no choice but to admit that Carambetsos made it. For Carambetsos not to have made it would have meant that Jorgensen would have had to have fabricated the statement in the case submissions report. Apart from the integrity of Jorgensen, this is absurd. Notwithstanding that it is equally absurd that White would not have told Favreau and Ratchford of the statement, they continued to deny knowledge of the statement under oath. Mr. Gibson points out that the defence is dependent on the good faith of the police in producing exculpatory evidence in their possession. It has been demonstrated that the police in this case will only admit their possession of exculpatory evidence when they have no choice. He submits that it is impossible to have any confidence that they do not have further evidence, exculpating Mr. Carambetsos that they have not produced. I agree with this submission.

[102]       In this case there has been more than “an institutional disregard for the prosecution’s obligation to preserve all relevant information in its possession.” There has been an institutional disregard for the duty of the prosecution to produce all relevant information in its possession.

 

(h)        The Third Branch of the Test in Tobiass

 

 

[103]       The Supreme Court of Canada stated the following in Tobiass:

After considering these two requirements, the court may still find it necessary to consider a third factor. As L’Hereux-Dubé J. has written, “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”: R. v. Conway, [1989] 1 S.C.R. 1659 at p. 1667, 49 C.C.C. (3d) 289. We take this statement to mean that there may be instances in which it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits. This is not to say, of course, that something akin to an egregious act of misconduct could ever be overtaken by some passing public concern. Rather, it merely recognizes that in certain cases, where it is unclear whether the abuse is sufficient to warrant a stay a compelling societal interest in having a full hearing could tip the scales in favour of proceeding.

 

 

[104]       In this case, a non-native is charged with killing a native in the city of Kenora. Carambetsos was arrested on October 4, 2000 and held in custody. He was released on bail with the consent of the crown on October 14, 2000. The charge was second degree murder. Nevertheless, it was a case for release.  The accused had no criminal record, he was employed, he had family support and he had deep roots in the community.  The crown was clearly right in consenting to the release of Justin Carambetsos.  Notwithstanding this, on the date of his bail hearing, there was a native demonstration opposing his release.  Two weeks later, there was a larger demonstration organized by native advocacy groups outside the community to register their opposition to his release.  It was the crown which, on the consent of the defence, challenged for cause.  There were two questions related to publicity.  The third question related to the potential for racial bias. It was as follows:

3.  Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the deceased victim is an Aboriginal person and the person charged with the crime is not?

 

[105]       There is clearly tension between the natives and non-natives in this city, which has been aggravated by this case.  It is important for racial harmony in this city that this case be tried by an impartial jury, having placed before it all legally admissible evidence.

[106]       The suppression by the police of the Carambetsos statement to White on October 4, 2000 and of Heather Gunn’s statement to Favreau on October 4, 2000 in the police car, in whatever form it was made, were “egregious acts of misconduct”.  Everything that flowed from this has made it impossible now for the accused to receive a fair trial. The interest of the community in a trial of a killing that has greatly troubled the community cannot displace the fair trial rights of the accused.

 

VIII  Conclusion

 

 

 

[107]       The accused cannot get a fair trial because the police did not perform their function.  Their function was to investigate impartially. What they did was to use the power of the state to gather evidence to support their conclusion that Justin Carambetsos was guilty.  Not only did they do that, they used the power of the state to suppress evidence which supported the accused’s innocence.  This conduct is unacceptable.  For me to permit this trial to proceed would be to support and condone what the police have done.  It would be to abdicate the role of the court. The charge is stayed.             

 

 

Released:       February 18, 2004                               _________________________________

                                                                                    Justice P. B. Hambly



[1] Transcript from preliminary hearing June 26, 2001, pg. 166, line 30 to page 168, line 4.

[2] Transcript from preliminary hearing June 26, 2001, pg. 168, line 21 to page 169, line 8.

[3] Transcript of White from pre-trial motions, p. 97, line 24 –32, p. 98, line 1-2)

[4] Transcript of the pre-trial motions, testimony of Lloyd White, February 5, 6, 7, 2003, pg. 18, line 31 to pg. 19, line 5.

[5] Transcript of the pre-trial motions, testimony of Lloyd White, February 5, 6, 7, 2003, pg. 178, line 31 to pg. 179, line 4.

[6] Transcript of the pre-trial motions, testimony of Lloyd White, February 5, 6, 7, 2003, pg. 235, line 17 to pg. 236, line 25.

[7] Transcript of the pre-trial motions, testimony of Thomas Favreau, January 29, 2003, p. 123, line 19 to line 28.

[8] Transcript of the pre-trial motions, testimony of Thomas Favreau, January 29, 2003, p. 137, line 30 to page 139, line 21.

[9] Letter from crown attorney Daniel Mitchell to police chief George Curtis, dated July 17, 2001, numbered para. 2.

[10] Mr. Gibson’s factum, February 2004, par. 15; testimony of Lloyd White, Preliminary Inquiry Transcript. Vol. 1, p. 163

[11] R. v. Duguay (1985), 18 C.C.C. (3d) 289 (Ont. C.A.)

[12] R. v. Collins (1987), 33 C.C.C. (3d) 1

[13] R. v. Jacoy (1988), 45 C.C.C. (3d) 6 at p. 54

[14] R. v. Greffe (1990), 55 C.C.C. (3d) 161

[15] R. v. Regan (1999), 21 C.R. (5th) 366 at para. 63

[16] R. v. Boucher (1954), 110 C.C.C. 263 (S.C.C.)

[17] R. v. Greganti, para. 1.l

[18] R. v. Rajalingam, [2003] O.J. No. 530

[19] R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1

[20] R. v. Carosella (1997), 112 C.C.C. (3d) 289

[21] R. v. Young (1984), 13 C.C.C. (3d) 1

[22] R. v. La (1997), 116 C.C.C. (3d) 97

[23] R. v. Court (1998) 36 O.R. (3d) 263

[24] R. v. Leduc (2003), 176 C.C.C. (3d) 321, Ont. C.A.

[25] R. v. Campbell (1978), 38 C.C.C. (2d) 6

[26] R. v. Liu [2003], O.J. No. 74

[27] R. v. Swanston (1982), 65 C.C.C. (2d) 453

[28] R. v. Languille (1990), 75 O.R. (2d) 65

[29] R. v. Bero (2000), 151 C.C.C. (3d) 545