Durham (Regional Municipality) v d'Avernas

Durham (Regional Municipality) v. d'Avernas

2007 CarswellOnt 8840
Ontario Court of Justice — D.J. Halikowski J. | Heard and decided September 12, 2007

Background

Mr. d'Avernas was facing criminal charges brought by Durham Region. The Crown was required to disclose evidence to the defence before trial, but they botched the job. When the case came before Justice Halikowski, it became clear that the Crown's disclosure was incomplete and confusing. The officer's notes were particularly problematic — the Crown admitted they weren't even sure what the notes were saying, and there was confusion about what exactly the officer had written down.

Mr. d'Avernas, representing himself, applied for disclosure and argued that the Crown's failure to properly disclose evidence violated his right to make full answer and defence.

Issues

1. Did the Crown meet its disclosure obligations under R. v. Stinchcombe?
2. Should the proceedings be stayed due to the disclosure failures?

The Crown's Disclosure Disaster

Justice Halikowski was blunt: "The disclosure requirements are clear. Each case turns on its own facts when it comes to whether or not there's apparent prejudice on the face of the documentation, but here the disclosure was obviously not legible and it was perfectly clear to everybody on the date of the trial that it was not."

The judge found that the Crown had done its best to get legible notes before trial, but admitted being "confused on the second paragraph of those notes as to what exactly the officer's notes were saying." The Crown's own uncertainty about their evidence was damning. The judge noted it was "dangerous to give disclosure on the date of the trial" because the defence position "is going to be, or what the strategy is going to be on the trial, and to second guess and say, 'Well, it wasn't prejudicial to the accused', is really a dangerous thing for a court to do."

Key Takeaway

Proper disclosure isn't optional — if the Crown can't figure out their own evidence, how can the defence prepare a proper response?

The judge granted the appeal and ordered a new trial, refusing to stay proceedings since this wasn't an abuse of process case. The lesson: disclosure failures can torpedo a prosecution even when the Crown might otherwise have a strong case.