Anderson, R. v. (2002), 57 O.R. (3d) 681 (C.A.)

  • Document:
  • Date: 2018

Her Majesty the Queen v. Anderson*

[Indexed as: R. v. Anderson]

57 O.R. (3d) 671

[2002] O.J. No. 443

Docket No. C33913

Court of Appeal for Ontario

Moldaver, Feldman and Cronk JJ.A.

February 12, 2002

*Vous trouverez traduction française de la décision ci-desous à 57 O.R. (3d) 681.

Charter of Rights and Freedoms — Fundamental justice — Self-incrimination — Right to remain silent — Crown sought to introduce accused’s private journals as part of its case-in-chief — Trial judge erred in excluding journals on basis that use of journals would offend principle against self-incrimination and right to remain silent by compelling accused to testify to explain statements in journals — Tactical obligation to testify does not constitute legal obligation or compulsion to testify — Canadian Charter of Rights and Freedoms, ss. 7, 11(c), 11(d).

Charter of Rights and Freedoms — Self-incrimination — Crown sought to introduce accused’s private journals as part of its case-in-chief — Trial judge erred in excluding journals on basis that use of journals would offend principle against self-incrimination and right to remain silent by compelling accused to testify to explain statements in journals — Tactical obligation to testify does not constitute legal obligation or compulsion to testify — Canadian Charter of Rights and Freedoms, ss. 7, 11(c), 11(d).

Criminal law — Abuse of process — Crown did not indicate intention to use accused’s private journals as part of its case-in-chief at first two trials — Crown sought to introduce journals as part of its case-in-chief at third trial — Trial judge excluded journals and Crown elected to call no other evidence — Accused acquitted — Crown appeal allowed — Crown’s change in position concerning use of journals at third trial not constituting bad faith — Crown’s decision to call no evidence did not preclude new trial and did not constitute abuse of process.

The accused was charged with sexual assault causing bodily harm, forcible confinement, assault with a weapon, possession of a weapon for a purpose dangerous to the public peace and threatening death. The Crown gave no indication in either of the accused’s first two trials that it intended to introduce the accused’s private journals, which were seized pursuant to a search warrant after his arrest, as part of its case-in-chief or that it regarded the journals as critical to its case against the accused. At the outset of the third trial, Crown counsel indicated his intention to refer to the journals during his opening address to the jury and to use the journals as part of the Crown’s case-in-chief.

The trial judge ruled that the use of the journals as proposed by the Crown would violate the accused’s right to silence under s. 7 of the Canadian Charter of Rights and Freedoms, his right to a fair trial under s. 11(d) of the Charter and the privilege against self-incrimination in s. 11(c) of the Charter by rendering it more likely, or even probable, that the accused would be compelled to testify to explain the statements in the journals. The journals were excluded from evidence. The Crown elected not to call any evidence and the accused was acquitted. The Crown appealed.

Held, the appeal should be allowed.

The journals were created by the accused prior to any involvement of the state or its agents. The statements in the journals were not made as a result of coercion by the state, nor was there an adversarial relationship between the accused and the state at the time the statements were made. The fact that the Crown’s case against the accused might be stronger after admission into evidence of the journals did not create a legal compulsion to testify contrary to s. 11 of the Charter. The decision whether to testify remained open to the accused upon completion of the Crown’s case. Neither the right to silence, the principle against self-incrimination nor the fair hearing guarantees of s. 11(d) of the Charter operated to prevent admission into evidence of the accused’s journals as part of the Crown’s case-in-chief.

There was no suggestion of any impropriety by the Crown leading to the termination of the first trial nor the declaration of a mistrial at the second trial. While the Crown had not indicated an intention in advance of those trials to seek to rely on the accused’s journals, apart from their potential use in cross-examination of the accused, Crown counsel provided clear advance notice to the accused of the potential use of the journals by the Crown as part of its case-in-chief at the third trial. The Crown is entitled prior to the commencement of any criminal trial to assess the evidence to be relied upon by it during the trial, based on the circumstances then prevailing. There was no conspicuous or overwhelming evidence of improper motive or bad faith on the part of the Crown or of an act so wrong that it violated the conscience of the community, sufficient to establish an abuse of process.

Cases referred to

R. v. Boss (1988), 30 O.A.C. 184, 42 C.R.R. 166, 46 C.C.C. (3d) 523, 68 C.R. (3d) 123 (C.A.); R. v. Broyles, [1991] 3 S.C.R. 595, 84 Alta. L.R. (2d) 1, 131 N.R. 118, [1992] 1 W.W.R. 289, 8 C.R.R. (2d) 274, 68 C.C.C. (3d) 308, 9 C.R. (4th) 1; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, 49 O.R. (3d) 735n, 191 D.L.R. (4th) 539, 259 N.R. 336, 78 C.R.R. (2d) 53, 148 C.C.C. (3d) 97, 36 C.R. (5th) 223 (sub nom. R. v. D. (A.S.)); R. v. Fitzpatrick, [1995] 4 S.C.R. 154, 129 D.L.R. (4th) 129, 188 N.R. 248, 32 C.R.R. (2d) 234, 102 C.C.C. (3d) 144, 43 C.R. (4th) 343; R. v. Hebert, [1990] 2 S.C.R. 151, 47 B.C.L.R. (2d) 1, 110 N.R. 1, [1990] 5 W.W.R. 1, 49 C.R.R. 114, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145; R. v. Jewitt, [1985] 2 S.C.R. 128, 20 D.L.R. (4th) 651, 61 N.R. 159, [1985] 6 W.W.R. 127, 21 C.C.C. (3d) 7, 47 C.R. (3d) 193; R. v. Jones, [1994] 2 S.C.R. 229, 114 D.L.R. (4th) 645, 1 L.W.R. 636, 21 C.R.R. (2d) 286, 89 C.C.C. (3 1 S.C.R. 601, 117 Nfld. & P.E.I.R. 269, 165 N.R. 241, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161; R. v. S. (R.J.), [1995] 1 S.C.R. 451, 21 O.R. (3d) 797n, 121 D.L.R. (4th) 589, 177 N.R. 81, 26 C.R.R. (2d) 1, 96 C.C.C. (3d) 1, 36 C.R. (4th) 1; R. v. White, [1999] 2 S.C.R. 417, 174 D.L.R. (4th) 111, 240 N.R. 1, 63 C.R.R. (2d) 1, 135 C.C.C. (3d) 257, 42 M.V.R. (3d) 161, 24 C.R. (5th) 201

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1-278.91, 686(4) (b)(i) [as am.]

Canadian Charter of Rights and Freedoms, ss. 7, 8, 11(c), (d)

APPEAL by the Crown from a judgment of Shaughnessy J. (2000), 73 C.R.R. (2d) 344 (S.C.J.). Alexander Hrybinsky, for appellant.

Dirk Derstine, for respondent.

The judgment of the court was delivered by

  1. CRONK J.A.: — Two issues arise on this appeal:

  1. whether the admission into evidence of personal journals made by the respondent prior to his detention or arrest, as part of the Crown’s case-in-chief, would offend the right to remain silent, the principle against self-incrimination, and the right to a fair trial contrary to ss. 7, 11(c) and 11(d) of the Canadian Charter of Rights and Freedoms; and

  2. whether the Crown’s decision not to call evidence subsequent to the exclusion of the journals, resulting in the respondent’s acquittal on all charges, precludes a new trial on the basis of abuse of process.

  1. As the result of a Charter application by the respondent at trial, the trial judge directed that the respondent’s journals be excluded from evidence as part of the Crown’s case-in-chief on the basis that their admission would offend ss. 7, 11(c) and 11(d) of the Charter. He further held that the Crown could use the journals to cross-examine the respondent if he chose to testify at the trial. In consequence of the trial judge’s ruling, Crown counsel elected to call no evidence at the trial. This led to the respondent’s acquittal on multiple charges under the Criminal Code, R.S.C. 1985, c. C-46. The Crown appeals that decision, and seeks an order setting aside the acquittals and ordering a new trial.

  1. History of Proceedings

  1. In August of 1996, the respondent was charged with sexual assault causing bodily harm, forcible confinement, assault with a weapon, possession of a weapon dangerous to the public peace and two counts of threatening death, contrary to the Criminal Code.

  1. The respondent appeared before the Ontario Court of Justice (General Division) in Whitby, Ontario in mid-January 1997, on an indictment including the six counts comprising the charges in this case. After numerous court appearances, jury selection commenced on February 22, 1999. The jury did not hear evidence, an adjournment was granted and, for reasons not apparent on the record before this court, the jury was dismissed on March 1, 1999. On March 8, 1999, a second trial commenced and some evidence was called before a new jury. For reasons also not apparent on the record before this court, the second trial ended in a mistrial on March 12, 1999, when the complainant was under cross-examination.

  1. The Crown gave no indication to the respondent in either of the first two trials that it intended to introduce his journals as part of the Crown’s case-in-chief, or that it regarded the journals as critical to its case against the respondent. Prior to commencement of the first trial, however, Crown counsel had reserved its right to use the journals to cross-examine the respondent, if he chose to testify.

  1. Following the mistrial in the second trial, a further pre-trial was proposed. By letter dated March 14, 1999, Crown counsel informed the respondent’s trial counsel of the Crown’s willingness to participate in the suggested pre-trial and stated that if the case was not resolved through the pre-trial, the Crown might rely on the journals as part of its case at trial. When no resolution was achieved following a pre-trial held on April 1, 1999, a third trial commenced before Justice Shaughnessy on February 21, 2000.

  1. No communication between counsel regarding the journals occurred between April 1, 1999 and February 21, 2000. At the outset of the third trial, Crown counsel indicated his intention to refer to the journals during his opening address to the jury and to use the journals as part of the Crown’s case-in-chief. This led to the ruling by the trial judge that the journals were inadmissible as part of the Crown’s case-in-chief. As described above, acquittals on all counts followed.

  1. The Journals

  1. The respondent was arrested when the police came to his home to execute a search warrant. The journals were seized shortly thereafter, pursuant to the search warrant. The journals cover a period of several years, encompassing the time frame relating to the charges against the respondent. They comprise approximately 500 to 1,000 pages of handwritten notes in various notebooks.

  1. The parties agree that the respondent’s journal entries at issue contain both exculpatory and inculpatory statements. At least in part, therefore, they are self-incriminatory in nature. At trial, in expressing his reasons for deciding not to call any evidence in the case, Crown counsel (not Crown counsel on this appeal) stated:

. . . Having carefully considered the evidence which does exist and granted there is still some evidence remaining, the Crown is still of the view that those journals were essential to the Crown’s case. That the case as it now stands would not be such as to require [the respondent] to ever testify, the journals are not — would not be of any use to the Crown. Another way to put it is that the evidence would not meet minimal standard (sic). As a result then the Crown will not be calling any evidence in this trial.

. . . . .

While in the past the Crown had considered conducting this trial without relying on these journals, clearly the complainant’s response in cross-examination and the complainant’s current demeanour now force the Crown — I shouldn’t say force, but now put the Crown in a position where the defence, it would be extremely unlikely that there would be any defence called and in the public interest both considering the time the jury would spend here, the time [the] court would spend in session dealing with this case, and more importantly in the eyes of the Crown, the time the complainant would have to go through another rigorous intrusive cross-examination with regard to the most intimate details of her life in a situation where essential evidence is not available to the Crown is simply not fair to that complainant.

  1. Exclusion of the Journals From the Crown’s Case-In-Chief

  1. The respondent’s journals were generated prior to any police investigation, detention or arrest. He does not contest that the statements made in the journals are voluntary and the issue of voluntariness is not raised on this appeal.

  1. Similarly, the respondent does not challenge the validity of the search warrant used to effect seizure of the journals, or the manner of its execution, and no breach of s. 8 of the Charter is alleged. The issue of whether a reasonable expectation of privacy attaches to the journals, and any consequences thereof, was not argued by the respondent at the third trial or on this appeal. Crown counsel submits, rightly in my view, that had the respondent sought to have the journals excluded from evidence on the basis of an asserted privacy interest protected under s. 8 of the Charter, the resulting record in this case may well have been different. At a minimum, had the argument been raised at trial, the trial judge would have been required to address the issue. If a new trial is ordered in this case, as requested by the Crown, any issues concerning the respondent’s rights under s. 8 of the Charter in relation to the journals would remain alive.1 at end of document]

  1. On this appeal, the respondent argues that the use of the journals as proposed by the Crown would violate his right to silence under s. 7 of the Charter and the principle against self-incrimination embodied within ss. 7 and 11(c) of the Charter. He further argues that the underlying purpose of the Crown’s suggested use of the journals is to compel him to testify at trial and, consequently, the admission of the journals would undermine the right to a fair trial protected under s. 11(d) of the Charter.

  1. Sections 7, 11(c) and (d) of the Charter provide:

  1. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

. . . . .

11. Any person charged with an offence has the right

. . . . .

    1. not to be compelled to be a witness in proceedings against that person in respect of the offence;

    2. to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; . . .

  1. It is undisputed that a principle against self-incrimination exists in Canadian law and is embodied in s. 7 of the Charter as a principle of fundamental justice. It has been described as an overarching or core principle within the Canadian justice system from which various common law and Charter rules emanate (R. v. White, [1999] 2 S.C.R. 417, 135 C.C.C. (3d) 257, at pp. 436-38 S.C.R., pp. 274-75 C.C.C., per Iacobucci J.).2 at end of document] The principle is “closely concerned with the right to silence of a person in jeopardy in the criminal process”, a right also protected by s. 7 of the Charter (R. v. Hebert, [1990] 2 S.C.R. 151, 57 C.C.C. (3d) 1, at p. 173 S.C.R., p. 33 C.C.C., per McLachlin J. (as she then was)). More particularly, at p. 175 S.C.R., p. 34 C.C.C., . . . the measure of the right to silence may be postulated to reside in the notion that a person whose liberty is placed in jeopardy by the criminal process cannot be required to give evidence against himself or herself, but rather has the right to choose whether to speak or to remain silent.

  1. Residual protections against self-incrimination are afforded through s. 7 of the Charter. These residual protections are both specific and “contextually sensitive” (White, at p. 438 S.C.R., p. 276 C.C.C., per Iacobucci J.). In other words, “the parameters of the right to liberty can be affected by the context in which the right is asserted” (White, at pp. 438-39 S.C.R., pp. 275-76 C.C.C., per Iacobucci J., referring to R. v. Jones, [1994] 2 S.C.R. 229, 114 D.L.R. (4th) 645, at p. 257 S.C.R., per Lamer C.J.). Further, the principle against self-incrimination is not absolute. It may “mean different things, at different times, in different contexts” (R. v. S. (R.J.), [1995] 1 S.C.R. 451, 121 D.L.R. (4th) 589, at paras. 104 and 107, per Iacobucci J., writing for four justices). This requires a contextual analysis of the circumstances in each case where the principle is invoked, to determine on the facts whether the principle is actually engaged (White, at p. 439 S.C.R., p. 276 C.C.C., per Iacobucci J. and R. v. Fitzpatrick, [1995] 4 S.C.R. 154, 129 D.L.R. (4th) 129, at para. 25, per La Forest J.). In addition, the principle is embodied in several specific procedural protections under the Charter, including the right to non-compellability in s. 11(c). In White, Iacobucci J., at pp. 436-37 S.C.R., p. 274 C.C.C., described the procedural protection afforded by s. 11(c) as a principle of fundamental justice under s. 7.

  1. The constitutionally protected right to silence is triggered when an accused in a criminal proceeding is “subject to the coercive powers of the state through his or her detention” (R. v. Broyles, [1991] 3 S.C.R. 595, 68 C.C.C. (3d) 308, at p. 606 S.C.R., p. 317 C.C.C., per Iacobucci J. for the court; Hebert, at p. 184 S.C.R., p. 41 C.C.C., per McLachlin J.), or when an adversarial relationship arises between an individual and the state (R. v. R.J.S., at para. 266, per L’Heureux-Dubé J.). This flows from the purpose of the right to silence which has been described as: . . . to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. Accordingly, if the person to whom the impugned remarks is made is not an agent of the state, there will be no violation of the right to silence. (Broyles, at p. 607 S.C.R., p. 318 C.C.C., per Iacobucci J.)

  1. In this case, the journals were created by the respondent prior to any involvement of the state or its agents. The journals were not made as a result of statutory compulsion or a regulatory scheme to which the respondent was subject (as discussed in White and Fitzpatrick) or after detention or arrest (as discussed in Hebert). Thus, the statements in the journals were not made as a result of coercion by the state, nor was there an adversarial relationship between the respondent and the state at the time the statements were made. The context of this case, therefore, is distinct from that at issue in White, Fitzpatrick and Hebert.

  1. The statements contained in the journals were not elicited by the authorities; rather, they are writings lawfully seized by the authorities. The issue, then, is whether the use of the journals at trial during the Crown’s case-in-chief would offend the principle against self-incrimination and the right to silence. The trial judge found that it would, by rendering it more likely, or even probable, that such use of the journals by the Crown would compel the respondent to testify to explain the statements in the journals.

  1. With respect, I do not agree. As stated by Crown counsel in his written submissions on this appeal: . . . this ruling confuses the principle of non-compellability with the legitimate tactical decision by an accused as to whether to testify. Other types of evidence such as out of court statements to witnesses, voluntary confessions to police or physical evidence also put the accused in the position of deciding how to explain or refute the evidence.

  1. The fact that the Crown’s case against the respondent might be stronger after admission into evidence of extracts from the journals does not create a legal compulsion to testify contrary to s. 11 of the Charter. If the respondent chooses to testify, he does so on a tactical basis flowing from his assessment of the overall strength of the Crown’s case.

  1. R. v. Darrach, [2000] 2 S.C.R. 443, 191 D.L.R. (4th) 539 confirmed that the tactical obligation to testify felt by an accused does not constitute a legal obligation or compulsion to testify (see also R. v. Boss (1988), 30 O.A.C. 184 at p. 198, 42 C.R.R. 166 (C.A.)). In Darrach, Gonthier J. stated, at paras. 48 and 49: The distinction between tactical and legal compulsion is consistent with the definition of a compellable witness as “one who may be forced by means of a subpoena to give evidence in court under the threat of contempt proceedings” (J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at para. 13.46. . . . Coercion to testify violates the principle against self-incrimination, but as Lamer C.J. defined it, “[c]oercion . . . means the denial of free and informed consent” (R. v. Jones, [1994] 2 S.C.R. 229 at p. 249, [89 C.C.C. (3d) 353, 114 D.L.R. (4th) 645] cited in White, supra, at para. 42.

  1. The decision whether to testify at trial remains open to the respondent upon completion of the Crown’s case. Free and informed consent exists if the respondent elects to testify at trial in order to exculpate himself. As stated by Gonthier J. in Darrach, at paras. 49 and 50, “He knows that he is not required to do so” and, further: Where there is neither a legal obligation nor an evidentiary burden on the accused, the mere tactical pressure on the accused to participate in the trial does not offend the principle against self-incrimination (s. 11(c)) or the right to a fair trial (s. 11(d)).

  1. If the respondent chooses to testify following the use of his journals by the Crown in its case-in-chief, he does so from his desire to raise a reasonable doubt about the Crown’s case. This is neither a burden of proof, nor compelled testimony. It follows, in my view, that none of the right to silence, the related principle against self-incrimination, or the fair hearing guarantees of s. 11(d) of the Charter, operates to prevent admission into evidence of relevant extracts from the respondent’s journals as part of the Crown’s case-in-chief.

  1. This does not mean that the relevancy of the journal extracts is to be presumed. That is a matter to be determined by the trial judge. The Crown is not relieved of its burdens to prove all of the elements of each alleged offence and to satisfy the court that the journals are relevant and otherwise admissible. In consequence, trial fairness is preserved. A fair trial as protected by s. 11(d) is one “that does justice to all the parties” (Darrach, at para. 70, per Gonthier J.).

  1. Abuse of Process

  1. The respondent also argues that even if the journals were excluded from evidence improperly at trial, the Crown’s subsequent decision not to call any evidence precludes it from seeking a new trial in the circumstances of this case.

  1. As conceded by the respondent, the Crown retains a prosecutorial discretion over the conduct of its cases which, absent an abuse of process, attracts a high degree of deference. As indicated in R. v. Power, [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1, at p. 616 S.C.R., p. 10 C.C.C., per L’Heureux-Dubé J., “. . . courts should be careful before they attempt to ‘second-guess’ the prosecutor’s motives when he or she makes a decision”.

  1. The test to support a stay of criminal proceedings based on abuse of process is an onerous one. The power to stay such proceedings can only be exercised in the “clearest of cases” or the “most exceptional circumstances” (Power, at pp. 613-14 S.C.R., p. 8 C.C.C., per L’Heureux-Dubé J.; R. v. Jewitt, [1985] 2 S.C.R. 128, 20 D.L.R. (4th) 651, at paras. 10 and 25, per Dickson C.J.); and R. v. Keyowski, [1988] 1 S.C.R. 657, 40 C.C.C. (3d) 481 at p. 482, per Wilson J.).

  1. In Power, L’Heureux-Dubé J. indicated that there must be “overwhelming evidence” that the proceedings at issue are “unfair to the point that they are contrary to the interest of justice” to support a stay on the basis of abuse of process (at p. 616 S.C.R., p. 10 C.C.C.). She further stated, at p. 616 S.C.R., p. 10 C.C.C.: Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute.

Cases of this nature will be extremely rare.

  1. In asserting abuse of process the respondent relies on the fact that in the first two trials, the Crown expressed no intention to rely on the journals as part of its case-in-chief. It follows, it is said, that the journals were not “essential” to the Crown’s case and that this lack of evidentiary value demonstrates an underlying intention by the Crown, in electing not to call any evidence, to circumvent the rule against interlocutory appeals in criminal proceedings by seeking to appeal the trial judge’s adverse evidentiary ruling. This argument, in my view, cannot succeed.

  1. On the record before this court, there is no suggestion of any impropriety by the Crown leading to the termination of the first trial and the declaration of a mistrial at the second trial. While the Crown had not indicated an intention in advance of those trials to seek to rely on the respondent’s journals, apart from their potential use in cross-examination of the respondent should he choose to testify, Crown counsel provided clear advance notice to the respondent of the potential use of the journals by the Crown as part of its case-in-chief at the third trial.

  1. The Crown is entitled prior to the commencement of any criminal trial to assess the evidence to be relied upon by it during the trial, based on the circumstances then prevailing. The fact that the Crown found it unnecessary or inadvisable to seek to rely on the journals as part of its case-in-chief during the first two trials, does not mean that the importance of the journals to the Crown’s case remained the same at the commencement of the third trial, or that the Crown was precluded from reassessing their importance at the time of the third trial based on the strength of the available evidence against the respondent and the circumstances which then prevailed. An assessment of the significance of the journals, or the need for their use, by the Crown in 2000 different from the assessments made by the Crown in 1999, does not establish bad faith or improper motive on the part of the Crown. Moreover, a conclusion by the Crown at the third trial that the case against the respondent would not meet the criminal standard of proof without the use of the journals, is a conclusion which, in the exercise of prosecutorial discretion, may support the decision not to call any evidence.

  1. At the third trial, Crown counsel asserted that the journals were “essential” to the Crown’s case. On this appeal, as set out in his written submissions, it is Crown counsel’s position that the journals “. . . potentially corroborate part of the complaint and may have a positive effect on the general credibility of the witness”. For the reasons set out above, the fact that Crown counsel on this appeal takes a view of the evidentiary significance of the journals different from that taken by the Crown at the third trial does not derogate from the good faith of the Crown, or constitute evidence of improper motive by the Crown, at the time of the third trial.

  1. In Power, the Supreme Court of Canada recognized that an appellate court might find abuse of process in a case where the Crown declines to continue a trial, despite sufficient evidence on which to base a verdict, for the sole purpose of obtaining an interlocutory appeal on an adverse ruling. Although the respondent alleges that this applies to this case, on the record before this court it cannot be concluded that without the use of the journals there was sufficient evidence at the time of the third trial to support a conviction.

  1. In my view, therefore, there is no “conspicuous” or “overwhelming” evidence in this case of improper motive or bad faith by the Crown, or “of an act so wrong that it violates the conscience of the community”, as contemplated in Power, sufficient to establish an abuse of process warranting intervention by this court. This is not one of those extremely rare cases in which the power to intervene to prevent an abuse of process should be exercised.

  1. As established by the majority decision in Power, absent an abuse of process warranting such intervention, this court has no discretion to refuse to order a new trial on a Crown appeal where a reversible error of law is found in the trial judge’s decision.

  1. Conclusion

  1. Accordingly, in my view, the appeal must be allowed. I would allow the appeal under s. 686(4)(b)(i) of the Criminal Code, set aside the acquittals entered by the trial judge, and order a new trial.

Appeal allowed.

Notes

Note 1: No issues arises in this case concerning the provisions of ss. 278.1 to 278.91 of the Criminal Code because those sections apply to production applications by an accused in a criminal proceeding.

Note 2: In White, evidence of the accused’s pre-trial statements was excluded on the basis that it was unfairly obtained under statutory compulsion.

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