Friday, August 07, 2009

 

Basi-Virk: SCC decision relates closely to BC case.

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Many thanks to "EM", a Citizen Journalist, who once again sends a pertinent finding:


SCC decision relates closely to BC case.
Date: 20090730

Jason Chester Bjelland

Appellant

and

Her Majesty The Queen

Respondent

At trial, the accused was acquitted. The Court of Appeal, in a majority decision, set aside the acquittal and ordered a new trial, finding that the trial judge committed a reviewable error by failing to consider whether a less severe remedy than exclusion of evidence could have cured the prejudice to the accused

1] By reason of the Crown’s failure to disclose information in a timely way, the Crown breached the appellant’s right to make full answer and defence guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. The issue in this appeal as of right is whether the trial judge misdirected himself by ordering the exclusion of the late disclosed evidence as a remedy under s. 24(1) of the Charter.

2] The majority in the Court of Appeal found that the trial judge committed a reviewable error by failing to consider whether a less severe remedy than exclusion of evidence could cure the prejudice to the appellant by the late disclosure while still preserving the integrity of the justice system (2007 ABCA 425, 83 Alta. L.R. (4th) 4, at para. 30).

3] I agree with the result of the majority in the Court of Appeal. In my view, the trial judge committed a reviewable error by failing to consider whether the prejudice to the appellant could be remedied without excluding the evidence and the resulting distortion of the truth-seeking function of the criminal trial process. Under s. 24(1), where the evidence was obtained in conformity with the Charter, its exclusion is only available as a remedy where its admission would result in an unfair trial or would otherwise undermine the integrity of the justice system. In this case, the prejudice to the appellant’s right to make full answer and defence could be remedied through an adjournment and disclosure order and there was nothing that otherwise compromised the fairness of the trial process or the integrity of the justice system.

#7 "invited the appellant to bring an O’Connor application for access to this information"

37] In the present case, the Crown provided the appellant with disclosure, albeit late. In light of the fact that disclosure was ultimately provided to the appellant, the appellant’s s. 7 right to make full answer and defence was not infringed by his inability to cross-examine the potential Crown witnesses at a preliminary hearing. The appellant was provided with a transcript of a videotaped KGB statement of one accomplice, as well as an agreed statement of facts that formed the basis for a guilty plea and sentencing of the other accomplice. This material provided the appellant with sufficient disclosure of the Crown’s case against him. The appellant could make full answer and defence as guaranteed by s. 7 of the Charter without the need to cross-examine these witnesses at a preliminary inquiry. The prejudice resulting to the appellant from this late Crown disclosure would therefore have been cured by an adjournment to provide the appellant with an opportunity to consider this new evidence against him.

38] Unlike the exclusion of the impugned evidence ordered by the trial judge, an adjournment would have preserved society’s interest in a fair trial while still curing the prejudice to the accused. Had he properly directed himself, this should have been the remedy ordered.

read further
http://scc.lexum.umontreal.ca/en/2009/2009scc38/2009scc38.html

EM

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Comments:
sounds to me like the defence is continuing along with full intention of going to trial by bringing disclosure applications and pushing the Crown and government to fully disclose.

not sure what this decision means if the government has deleted emails that the Judge has found relevant to the trial.
 
This case probably reinforces a point made by Justice Bennett in her court. When Kinsella's lawyer was arguing vehemently for exclusion of PK's files, she said that appeal courts make clear that more disclosure is always preferred to less.

Exclusion of evidence is something the SCOC has been against in its decisions. This is key, "[exclusion of evidence leads to] resulting distortion of the truth-seeking function of the criminal trial process.

The good news for those who want this trial to proceed is that the decision indicates that delay occasioned by the defense seeking disclosure would not be grounds for dismissal. So, if the needed files are turned over, the trial should proceed. If the files are unavailable to be disclosed, particularly if agents of the crown destroyed them, I would expect dismissal. But I also know enough about this judge to know that she won't let the prosecution take a dive just to avoid political embarrassment for you know who.

With its wide reaching scandal potential, truth seeking is what this trial is now about. Most of us care less about Basi and Virk being convicted than having the entire story revealed.
 
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