Moishe Alexander Fraud Scheme

R. v. Hutchens

Between
Her Majesty the Queen, and
Sandy Craig Hutchens, Tanya Hutchens and Charles Joseph Tritt

[1998] O.J. No. 4127
DRS 99-00838

Ontario Court of Justice (Provincial Division)
Toronto, Ontario
Reinhardt Prov. J.

October 19, 1998.
(76 pp.)
Civil rights — Trials, due process, fundamental justice and fair hearings — Criminal and quasi-criminal proceedings — Right of accused to make full answer and defence — Speedy trial, accused's right to — Canadian Charter of Rights and Freedoms — Denial of rights — Remedies, stay of proceedings.
Application by the accused to stay charges of fraud and uttering threats on the basis of unreasonable delay under the Canadian Charter of Rights and Freedoms. Two of the accused, husband and wife, were arrested in November 1993. The third accused, Tritt, was arrested in March 1994. After several adjournments arising from unsatisfactory responses to disclosure requests, a new information involving all three accused was put before the court in June 1994. By the time the accused applied for a stay in October 1995, the husband and wife had appeared in court 25 times and Tritt had appeared 18 times. Three pre-trials were held. The defence alleged that the police failed to follow proper procedure for taking contemporaneous notes, and that there was inadequate disclosure resulting in delay. The total delay was 56 months. The Crown contented that the delay attributable to the Crown was 21.5 months for the husband and wife and 17.5 months for Tritt, to August 1995, when the defence provided notice of an application for a stay. The Crown attributed a total of 15 months of delay to the accused. The Crown suggested two to five months for intake. It was agreed that the 18 months lost, following the completion of the testimony, was neutral in the calculation of the delay. The Crown argued that the failure by the police to take notes of the initial investigation was cured by the subsequent disclosure, and that there was no ultimate prejudice to the accused warranting a stay.
HELD: Application allowed; stay granted. The police did not initially record their interviews with the principal complainants and witnesses, and did not keep track of the initial manner and time of the reception of documents. When confronted with the irregularities, the police stalled or refused to follow up until the defence threatened to commence an application for a stay. The Crown insisted on trying the three accused together, though Tritt was initially charged on a separate information and could have been proceeded with separately. The result was serious prejudice to all three accused. There was unreasonable delay and a denial of the right to make full answer and defence.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 7, 8, 11, 11(b), 24, 24(2).
Police Services Act.

Counsel:
Michael Innes, Q.C., for the Crown.
J. Jerome Cusmariu, for Sandy Hutchens.
John Weisdorf, Q.C., for Charles Tritt.
Tanya Hutchens on her own behalf.

REINHARDT PROV. J.:—
INTRODUCTION:
¶ 1 This application raises the question of the circumstances in which failure by the Crown to disclose and the resultant delay give rise to a Charter remedy of a stay.
¶ 2 There were originally seventeen charges before the Court. Fifteen were allegations of fraud that took place at various times between December of 1992 and December of 1993. Sandy Hutchens is named in all of the fraud counts. Charles Tritt is named in three of the fraud counts and Tanya Hutchens is named in two of the fraud counts. Mr. Hutchens was also charged with two counts of threatening.
¶ 3 Sandy and Tanya Hutchens were arrested in November of 1993, and Mr. Tritt was arrested in March of 1994.
¶ 4 In the Spring of 1994, the Crown made initial disclosure to the defence, and the parties all were expecting a trial date in Provincial Court in December of that year, assuming a satisfactory resolution of outstanding disclosure matters.
¶ 5 On the 4th of April, 1995, a formal Application for Disclosure was filed with the Court.
¶ 6 As will be discussed later, that "satisfactory resolution" has never taken place.
¶ 7 On the 16th of October, 1995, each accused elected to be tried in Provincial Court, before me, and an Application to Stay the proceedings for lack of disclosure and delay commenced on that day. Written materials were filed on the 23rd of October, 1995, and the matter has continued from time to time. During the hearing of the Application, the Crown withdrew two of the counts in the Information, Counts 1 and 7, alleging a fraud by Sandy Hutchens against Ion Melnic and a threat by Mr. Hutchens directed against Diane Cuddy. In all, I have heard nine days of evidence from seven witnesses, three for the applicants and four for the Crown. On the application, Sandy Hutchens filed an Affidavit in support, and the Crown filed Anticipated Evidence statements in reply from Constables Jeff Thomson and Richard McKinney. Exhibits in the Application include essentially all of the Crown materials actually disclosed, some 2500 pages of material, and the extensive correspondence between the various defence counsel and the Crown, found in the first bound volume of Applicants Material, Exhibit 20, some 142 pages. Written submissions have been filed on behalf of the Crown and Sandy Hutchens. Charles Tritt, through counsel, and Tanya Hutchens, on her own behalf, have each joined in the application for a stay. In support of the written submissions, I have received an additional volume of reported cases, articles and materials on the subjects of Disclosure, Delay and Abuse of Process, including excerpts from the Crown Policy Manual.
THE APPLICANT'S ALLEGATIONS:
¶ 8 The Application alleges that Sections 7 and 11 of the accused's Charter Rights have been breached, and that they have been denied the opportunity to make full answer and defence due to the following Crown misconduct:
1) The Police Investigative Procedures:

a) The Initial Investigation Prior to 3 November, 1993

1) Failure to disclose records pertaining to the investigation by Reynolds, McKinney and Thomson
2) Failure to take notes of initial interviews with complainants Melnic, Paza, Tomescu and Veres (Counts 1, 2, 5 & 6)
3) Failure to take notes of initial dealings with Canada Immigration
4) Failure to take notes of initial interviews with witnesses Bowler and Barnes (Counts 3 & 4)

b) The Ongoing Investigation

1) Failure to take notes of the manner in which documents came into the possession of the Police - 175 Cosburn Rent Rolls (Count 4), Hutchens Canada Trust Bank Records (Counts 8 - 13)
2) Failure to obtain "immigration files" in a timely manner (Counts 1, 2, 5, 6)
3) Failure by police to turn over all materials and notes to the Crown

2) The Manner and Timeliness of Disclosure:

a) Failure by the Police and Crown to respond adequately to Defence requests for disclosure - Defence Letters of 29 September, 1994, 11 and 27 January, 1995
b) Failure by the Police and Crown to comply promptly with Judicial Pre-trial undertakings - 30 June, 1994, 10 November, 1994, 18 January, 1995
c) Failure by the Police and Crown to communicate with each other as to what has, and has not, been disclosed

3) The Resultant Loss of a Contemporary Record of Events, and of Witnesses:

a) Counts 1, 2, 3, 4, 5, 6, 7, 17

CHRONOLOGY:
¶ 9 I wish to now briefly review the chronology of disclosure requests and the Crown responses to those requests.
¶ 10 The first disclosure request for Sandy Hutchens was made in writing on the 7th of December, 1993. The matter was adjourned to the 13th of January to allow the Crown to prepare the disclosure. On that date Sandy and Tanya Hutchens appeared before Judge Ross, and it was suggested by Judge Ross that a judicial pre-trial would be appropriate once disclosure was provided. The matter was adjourned to the 3rd of February, and the defence again, on the 14th of January, requested disclosure in writing. The defence received a Crown memorandum dated the 27th of January, 1994, indicating that disclosure was ready. On the 3rd of February, 1994 the parties appeared before Judge Paris. Counsel for Tanya Hutchens indicated that he had only received half of the relevant disclosure, and counsel for Sandy Hutchens agreed to put the matter over in order to give the Crown time to complete disclosure.
¶ 11 On the 11th of March, 1994 the Hutchens appeared before Judge Hogg. It was now some four months after their arrest, but counsel for Tanya Hutchens indicated that despite four requests for disclosure, no disclosure had been made covering her two charges. Counsel for Sandy Hutchens also indicated that his disclosure was deficient. There was still no Crown seized with the file, and Judge Hogg asked that this be remedied:
"The next time you're in front of me I want to see a Crown assigned to it. Obviously its not just a minor thing so therefore when you come back ... I want a Crown in here with you. Not the duty Crown of the day. I want the Crown assigned to the case in here telling me what's happening."

¶ 12 The matter was further adjourned to the 22nd of March. On that day the parties appeared before Judge Paris, and there was still no Crown assigned. No further disclosure had been made, and the case was further adjourned to the 25th of April, 1994, with Judge Paris noting that a Crown should be assigned to the case, and that the officer in charge of the case should be present on the next date. On the 25th the Hutchens again appeared before Judge Hogg. Counsel for Sandy Hutchens advised that Mr. Innes was the Crown and that he wished the matter to go over for two weeks so that he could provide further disclosure.
¶ 13 On the 2nd of May, 1994, Crown counsel Michael Innes met with counsel for Sandy Hutchens and officers J. Thomson and C. Reynolds. Further disclosure was made and the officers advised that there would be a "whole new brief" to replace the piecemeal disclosure that had occurred to date. On the 11th of May, Judge Paris was advised in court by counsel for Sandy Hutchens that the new brief was being prepared and that there was stili no disclosure on one count. Counsel for Tanya Hutchens indicated that he now had disclosure and wished that her matter proceed by way of a severance and early trial date, but the Crown would not agree to this. On the 25th of May, the Hutchens appeared before Judge Ross and advised that the Crown was preparing a new information adding three counts involving Mr. Tritt. Counsel for Tanya Hutchens again requested an early trial date, but Judge Ross felt it was premature to set a trial date with new charges pending. On the 13th of June, 1994 the Hutchens appeared before Judge Hogg, and the new information was before the court, although unsworn. A judicial pre-trial was scheduled for the 30th of June, with the Crown suggesting that the 5th of December, 1994 was available for a five day trial.
¶ 14 On the 30th of June, 1994, the first judicial pre-trial was held before The Honourable Regional Senior Judge Kelly. On this date a previously undisclosed investigation by the officers respecting Sandy Hutchens was revealed. Counsel for Mr. Hutchens requested disclosure of these new flies, as well as the files pertaining to Mr. Hutchens' work for particular clients in immigration matters. On the 6th and 14th of July Hutchens' counsel wrote to Constable Thomson, seeking further disclosure and confirming the disclosure requests still outstanding. On the 19th of July the parties appeared before Judge Paris and the matter was further adjourned one week because of defence counsel's personal matters. On the next court day the matter was further adjourned to the 18th of August at defence counsel's request, and the court was advised that subject to the disclosure requests raised with Judge Kelly being honoured, the December, 1994 trial dates remained reserved.
¶ 15 On the 16th of August, 1994, Hutchens' counsel contacted Constable Thomson seeking a reply to the letters of July 6 and 14. Constable Thomson indicated he had lost the letters. On the 18th the parties appeared before Judge Hogg, at which time Hutchens' counsel advised that there were "outstanding disclosure and bail" issues and the matter was put over to the 20th of September to deal with those outstanding issues. In addition, the 6 and 14 July letters were refaxed to Constable Thomson. On the 8th of September further disclosure was provided, and on the 20th Hutchens' counsel attempted to sort out with Crown counsel what the defence characterized as incomplete and inadequate disclosure. On the 20th, before His Honour Judge Hogg, Hutchens' counsel advised that the missing disclosure included investigative notebooks, and all of the immigration files, except for two letters. He asked that the matter go over to the 28th of October "in the hope that the material has been forwarded so that we can proceed" to trial on the 5th of December, 1994. Based upon the missing disclosure, Judge Hogg indicated that the outstanding disclosure must be provided by the 28th of October, or he would vacate the five days set aside for trial starting on the 5th of December.
¶ 16 On the 23rd and 29th of September, counsel for Mr. Hutchens, Paul Stern, sent two further disclosure requests to the Crown, the first with respect to the "immigration" files and the second with respect to disclosure generally, the second letter addressed to Crown counsel gives some indication of the problems that were emerging for the defence, and I quote:
"... disclosure of the notes of all officers pertaining to the investigation of my client in connection with the entire investigation of my client. In connection with that I would include all memoranda, occurrences of any sort and correspondence involving all officers and other persons and agencies, such as Immigration Canada. Where there are no notes or other memorandum, but only in that situation, I am requesting a will-say form of statement as to what else happened. The efforts by an officer to limit his response to what he believes to is relevant is a complete waste of time, in my view. First, as a matter of law, the decision as to what to disclose is yours, not his, subject to very limited exceptions which he would have to at least inform you of, and you, me, in any event. Secondly, the officer's assessment of what is relevant at a minimum could not contemplate what the defence may consider highly relevant. Also, in relation to Thomas Barnes, a former employee of Mr. Hutchens, a person who provided many documents to the police, I am surprised that there is only a one line will-say. That is one indicator of why my request is as outlined." (Italics added)

¶ 17 On the 19th of October, 1994, the defence received approximately 400 further pages of disclosure. However, at the court appearance before Judge Paris on the 28th of October, 1994, the entire situation was canvassed and despite the Crown suggestion that the matter proceed to preliminary inquiry for five days commencing the 5th of December, Judge Paris found that the disclosure was still inadequate was not prepared to give the court time to this case, due to the back log of matters that required special courts. He therefore vacated the trial date, adjourned the matter to be spoken to on the 9th of December, and ordered that a new pre-trial be arranged with Judge Kelly to sort out the ongoing disclosure issues. That pre-trial before Judge Kelly was arranged for the 10th of November, 1994. The pre-trial on the 10th of November was unsuccessful due to the continuing problems with disclosure, specifically in terms of the immigration aspects of the frauds as against Ion Melnic, Stefan Tomescu, Zenaida Paza and Ioan and Angela Veres. For this reason a third judicial pre-trial was scheduled for the 18th of January, 1995 with Judge Kelly. In preparation for this meeting, Mr. Hutchens' counsel, Mr. Stern, set out the ongoing disclosure issues in a letter dated the 11th of January:
"I also reviewed with you my notes from the June 30th, 1994 pre-trial at which time I made a similar request. As I explained to in our conversation yesterday, it continues to be impossible to determine the source and chain of possession and control of copies of documents which have been produced and which are being relied upon by the Crown. In order to make full answer and defence I have repeatedly requested disclosure on this issue. As we discussed yesterday, the 'source and nature of documents' problem would probably be solved if the officers would produce what I asked for last June and September, as noted above. It seems to me that there must be more notes, occurrences, property receipts, computer entries or something concerning what was done when. As an example of this difficulty, on October 19, 1994, I received a thick file that would appear to be a copy of a lawyer's file. There was no indication of when, where, how or by whom or from whom this file came to be disclosed. You commented that the issue of disclosure may be one where I may only seek a remedy from a trial judge, and that a judge of the Provincial Court could not deal with issue at this time. I indicated that if that is to be your position, I would ask that you so confirm, in order that I may respond in a more formal way. I noted that Count One on the Information relates to an immigration matter the Immigration Canada file has not been produced or I gather even examined by the investigators. I continue to be surprised that my client would be charged in that matter without the key material being examined by one of the investigators. I noted that the explanation offered that somehow my client is responsible for it being transferred to Eastern Europe is disputed, that the suggestion that he has such power in the circumstances is a dubious one, and that it remains in the possession of the Crown in right of Canada anyway."
"In conclusion, I have constantly indicated that in order to make a sensible election on how to be tried my client would like my advice, which I can only provide if I am able to make some sense of the factual and legal ingredients of the proofs offered. While there is much to be said for threshing (or thrashing) these issues out during a preliminary inquiry, why should my client be required to bear the costs and to abandon electing trial in the Provincial Division in order to obtain what I believe he is entitled to? (Italics added.)

¶ 18 On the 18th of January, 1995, the third judicial pre-trial took place with Regional Senior Judge Kelly. Disclosure issues were thoroughly canvassed, and Judge Kelly agreed with the defence on the appropriateness of the production of the immigration file or files that formed the basis of Count One, involving Ion Melnic. On the 23rd of January, 1995, the Crown wrote to Mr. Hutchens' counsel regarding the outstanding disclosure issues. The Crown stated its position as follows:
"Please be advised that, based on the advice of P.C. Thompson, the officer in charge of this investigation, the Crown position today is the same as it has been since approximately June of 1994; that is that there has been full disclosure of all relevant information in the possession and control of the Crown. Without question, the disclosure which has been made, over 6,000 pages, has been at the very least voluminous ... Certainly the Crown has endeavoured to ensure that disclosure has been complete and generally to co-operate with the Defence. In this regard I note that I requested the officers on the case to execute a search warrant on the Immigration Department with a view to accommodating the Defence even though it was not incumbent on the Crown to do so ... To ensure that the Defence has full access to all the information in the possession and control of the Crown, I extend an invitation to counsel to review all the police files on this case and copy anything the Defence does not already have. Simply contact Officer Thompson or Officer Reynolds to make arrangements. As well the Crown will call any or all of the officers involved in this investigation so that the Defence can cross-examine them even if they would not have been called as witnesses for any other reason. Naturally where ongoing investigation develops additional relevant information that information has been and will be disseminated to the Defence as soon as possible."
"In all candour I am increasingly concerned that the real Defence agenda is not to make full answer and defence to these charges in a court of law but rather to try to stall them out of existence. On June 13, 1994 the Crown agreed (along with the Defence) to set aside the week of December 5, 1994 for a Preliminary Hearing but due to the ever expanding, increasingly strident demands for disclosure the week set aside by Mr. Burton's office had to be cancelled. With respect to delay, the Defence communications make no mention of the impact on the pre-trial process Mr. Carter's tragic personal problems and your own health problems have had. In order to bring this issue to a conclusion I invite you to bring your complaints before a trial judge for resolution as soon as possible. (Italics added.)

¶ 19 On the 27th of January, 1995, counsel for Mr. Hutchens responded to the Crown's letter with a detailed letter setting out the consistency of the defence disclosure requests and noting that the Crown letter does not mention and appears to completely ignore the central role of Regional Senior Judge Kelly's direction in the pre-trial just five days before the Crown letter was written. The matter was further adjourned on consent of all parties on the 30th of January and on the 20th of February, 1995, a new Preliminary Hearing date of 16 October, 1995 was set on a provisional basis, with the 6th of April, 1995 set for a proposed motion concerning disclosure.
¶ 20 On the 4th of April, 1995, a formal Notice of Application for Disclosure was served on the Crown, returnable the 6th of April, 1995, seeking an Order that the Crown:
1) Produce the immigration file at the root of Count 1;
2) Disclose the notes, memorandum, occurrences of any sort, and correspondence involving all officers and other persons and agencies, such as Immigration Canada or identify what has not been disclosed and why material has been withheld; or
3) Where there are not notes or other memorandum, but only in that situation, a will-say form of statement as to what else was said, done and obtained, from all officers in connection with the entire investigation of the accused.

¶ 21 The Application was based upon the following two grounds:
1) Without production of the documents and police will-says, as requested, the Applicant cannot elect how to be tried, and;
2) Without production of the documents and police will-says, as requested, the time requirement of the case cannot be realistically assessed.

¶ 22 On the 4th of April, 1995, the Crown replied by providing a supplementary will-say from Constable Thomson which disclosed that Police Constable McKinney was the original 52 Division Officer assigned the original investigation of Mr. Hutchens. On the basis of discussions between counsel, it was agreed that a further will-say would be forthcoming from Officer McKinney, and on that basis it was agreed the application would be adjourned.
¶ 23 On the 6th of April, 1995, the parties appeared before His Honour Judge Bigelow. The court was advised that:
a) A new information was sworn on the 30th of June, 1994 charging all accused jointly;
b) The Crown had learned that Constable McKinney, who it was thought originally had a minor role, had in fact, had a much larger and active role in the investigation and had conducted four complainant interviews;

¶ 24 On the 28th of April, 1995, the case up before Judge Babe, at which time the court learned that the investigative notes of Constable McKinney were still being looked for, but that the Crown hoped to proceed on the 16th of October, as planned. Judge Babe was concerned that a further judicial pre-trial might be useful and concluded that the outstanding disclosure matters must be sorted out before the trial date could be confirmed.
¶ 25 On the 8th of May, Mr. Hutchens counsel, Mr. Stern, wrote to the Crown setting out in detail what problems were still outstanding with the disclosure provided, and I quote:
"1. You informed me that it was your information that I already had details of what P.C. McKinney had done and the statements he had taken, and I agreed to check and see if I already had this material in the form of the occurrence reports or statements provided;

I do not and would ask that you attempt to get the notes of Officer McKinney and better particulars of his 'in length' discussions with at least three complainants as set out in the third paragraph or his will-say, and the 'occasion' when he spoke with a fourth complainant, as set out in the fifth paragraph, or would ask that you confirm whether or not he has any further notes (November 3 and 16, 1993, have been disclosed) or memorandum of any sort pertaining to investigation of my client, and if he does not have such notes, whether he can prepare a detailed will-say concerning what he did including his meetings with possible witnesses and complainants (I acknowledge that you have told me that P.C. McKinney has advised you either directly or through P.C. Thomson that he now "has no recollection" of events pertaining to this case).
The details of what I do have pertaining to P.C. McKinney and the four complainants are as follows:

a) Re Tomescu: I only have an Occurrence dated August 23, 1993, prepared by an unknown officer Badge #1540, with an attached typed form of statement. There is no earlier police generated material, and in particular nothing from June, 1993 and nothing from P.C. McKinney.
b) Re Veres: I have no occurrence, although I do have a Supplementary Record of Arrest prepared by Constable McKinney (Badge #3504) on November 3, 1993;
c) Re Melnic: This situation is identical to Tomescu;
d) Re Paza: I have no Occurrence, although I do have a Supplementary Record of Arrest prepared by Constable Thomson on November 3, 1993, a three page handwritten question and answer form of statement dated October 27, 1993 (the officer asking the questions is nowhere identified) and a single page of undated, unsigned, legal sized foolscap notes by an unknown author, which starts: "My name is Zanaida Paza ..." and ends inappropriately "... and I asked him to [illegible]" such that it appears there may be more pages to the document;

2. You have made a request for the immigration files discussed earlier, and expect a response from the appropriate body;
3. In response to my concern as to how to advise my client as to how to elect to be tried, you assured me that the Crown will consent to a re-election into or out of a Provincial Division trial at any time;
4. You have told me that nothing more will be forthcoming by way of notes or will say from Constable Thomson;
5. In my view Constable Thomson's "revised" will-say dated April 6, 1995, barely addresses the issues I have previously raised, however perhaps that and the immigration file may be addressed again after the McKinney clarification."

¶ 26 On the 23rd of May, 1995, the case came before Judge Ross, at which time the Crown again requested that the matter go directly to the 16th of October, 1995 for Preliminary Hearing, on the basis that:
"If there are problems, they can be dealt with at that time and if the Crown's position is found to be inadequate the court can take whatever steps are appropriate."

Despite the Crown's position that there would be no more disclosure, Judge Ross adjourned the matter to the 7th of July, 1995 to permit the Application for Disclosure matter to be brought prior to the commencement of the Preliminary Hearing. Because of Thomson's unavailability, the matter was further adjourned to the 22nd of August.
¶ 27 On the 22nd of August, 1995, the parties appeared before Judge Paris for the Application. Defence Counsel advised Judge Paris that five minutes before the commencement of the court, he had received some 40 pages of disclosure. In the arguing of this motion, it was discovered by Judge Paris that there was no information properly before the court with respect to the 17 charges including those adding Mr. Tritt as a jointly charged accused. Judge Paris therefore ruled that he was without jurisdiction, and adjourned the valid informations to the 7th of September, 1995, for the Application to be heard.
¶ 28 On the 7th of September, a new Information, sworn the 6th of September, 1995, including all 17 charges was before the Court, and all parties attorned to the jurisdiction of the Court. At that time all parties consented to the matter going over to the 16th of October, 1995, to permit the Application to proceed.
¶ 29 On the 16th of October, 1995, the three accused elected trial in Provincial Court before me, and the application was verbally amended to become an application to stay, and adjourned for continuation to the 23rd of October, 1995 for further evidence and submissions. By this date the Hutchenses had personally appeared 25 times in Court on the matter, Mr. Tritt 18 times.
¶ 30 I heard evidence on the application on the 16th, 23rd and 24th of October, 1995, and the 13th, 14th and 16th of May, 5th and 13th of September, and the 16th of October, 1996. Following the completion of the testimony in the application, we lost approximately eighteen months for reasons that I have concluded have no bearing on the ultimate result and are essentially neutral in the calculation of delay: Mr. Stern was removed as Mr. Hutchens' counsel of record and he was replaced by Jerome Cusmariu, and Mr. Innes took a years' secondment to the Federal Department of Justice. As well, I asked Mr. Tritt to retain counsel to make submissions on the application and he obtained Mr. Weisdorf. (The discussion of the calculation of "length of delay" is found in the section by that title that follows later in this judgment.) I heard submissions on the 3rd and 4th of June of 1998. Called as witnesses by Mr. Hutchens' counsel were two of the accused, Tanya and Sandy Hutchens, and Sergeant John Knapp, Corporate Planning with the Metropolitan Toronto Police. The Crown called Constables Jeff Thomson, George Reynolds and Richard McKinney and lawyer Daniel Greenberg.
EVIDENCE OF CHARTER BREACH:
¶ 31 The defence presented the following evidence in support of their allegation of a Charter breach:
1) Failure to Follow Police Procedures for Taking Contemporaneous Notes:
a) The Evidence of Sergeant John Knapp, Metropolitan Toronto Police Services:

¶ 32 Sergeant John Knapp testified as a witness for the Applicant in this proceeding. He appeared in response to a subpoena from Mr. Hutchens' counsel directed to Metropolitan Toronto Chief of Police David Boothby seeking corporate records regarding the taking and retention of notes by Metropolitan Toronto police officers. He is employed in the operational section of the Corporate Planning Department of the Metropolitan Toronto Police and he is conversant with the relevant directives and rules regarding note-taking established under the Police Services Act and in effect at all relevant times during the investigations involving the accused before this court. He produced a compilation of the relevant sections of the Police Services Act and the rules and directives regarding note-taking which were filed as Exhibit 36 in this Application.
¶ 33 Mr. Hutchens' counsel took Sergeant Knapp through the materials produced, and the officer's evidence is that the Police Services Board has established Bylaw 99, as of February of 1993 which authorizes the Chief of Police to issue orders and instructions to the members of the force which are published in a Policy and Procedure Manual. At least one copy of the Manual is to be kept in each unit and readily accessible to members. Counsel took the witness through the following portions of the Manual:
Rule 3.9.0 SERGEANTS AND DETECTIVES (General)
Rule 3.9.4 MEMORANDUM BOOKS:
"While on duty, sergeants and detective shall carry an issued memorandum book which shall be made out in accordance with the instructions contained within the book."

Rule 3.9.5 PRIOR TO REPORTING OFF DUTY:

"Except when otherwise directed, sergeants and detectives shall, prior to reporting off duty, submit to the respective staff sergeant or detective sergeant of their unit ... seized and found property; their memorandum book, completed reports ... ."

3.12.0 CONSTABLES
Rule 3.12.5 MEMORANDUM BOOKS:
"Constables, while on duty, shall carry their memorandum book which shall be made out in accordance with the instructions contained within the book."

Rule 3.12.7 PRIOR TO REPORTING OFF DUTY:

"Except when otherwise directed, constables shall, prior to reporting off duty submit to the officer in charge of their unit ... seized and found property; their memorandum book; completed reports ..."

4.15.0 MEMORANDUM BOOKS
Rule 4.15.1 MEMORANDUM BOOKS OFFICIAL DOCUMENTS:
"Memorandum books are the property of the Board and as such are official documents."

Rule 4.15.4 RETENTION OF MEMORANDUM BOOKS:

"Memorandum books shall be retained in accordance with the provisions of the Force's Record Retention Schedule."

5.4.0 RECORDS AND REPORTS
Rule 5.4.4 ENTRIES TO BE MADE WITHOUT DELAY:
"Entries to records shall be made accurately, concisely, chronologically and without unnecessary delay by members designated for such duty."

Rule 5.4.6 REMOVAL OF FILES AND PROPERTY:

"Members shall not ... retain in their personal possession any found or seized property, exhibit, file, photograph, videotape, audiotape or any record of the Force.

Rule 5.4.7 OCCURRENCES REQUIRING REPORTS:

"Police officers receiving information on incidents occurring within the boundary of Metropolitan Toronto regarding offences against persons or property; or lost or found property shall complete the appropriate occurrence report and submit it to a supervisory officer at the first reasonable opportunity. In situations of an urgent nature, a completed occurrence report shall be submitted to a supervisory officer without delay. Under no circumstances, shall an occurrence report be submitted later than the tour of duty in which the information was received, unless otherwise directed by a supervisory officer." (Italics added.)

¶ 34 In addition, Sergeant Knapp was directed to the Policing Standards Manual, which essentially is the rationale for the Bylaws. With respect to the responsibility of officers to take notes, it has this to say at Section 205:
205 OFFICER NOTE TAKING RESPONSIBILITIES
Rationale
"The police officer's notebook is a chronological record of activities during the officer's tour of duty. In many cases it becomes a critical document at trials and hearings where it is subject to close scrutiny. The standard has been set so that the integrity of the notebook can be maintained."
Guidelines
"A written policy from the Chief of Police/Commissioner of the O.P.P. ensures that all police officers assigned to patrol or investigative functions keep a notebook. The written policy provides that:

a. All police officers assigned to patrol or investigative functions keep sufficient notes of their activities and observations to assist them in giving satisfactory evidence in the prosecution of persons charged with offences and to satisfactorily account for their daily activities."

¶ 35 Sergeant Knapp's package, which became Exhibit 36, also includes the mandatory instructions which are found in each Memorandum Book issued by the Police Services Board. These instructions are three pages in length. Included in the instructions is the following:
"Member Shall:

10. Use the memorandum book to record the following information:

e) Nature of duty including vehicle used and escort's badge number;
g) Time of lunch period;

¶ 36 Knapp testified for some length on these mandatory instructions. In essence, they are intended to result in the Memorandum Book being a contemporary record of all of the time in the officer's work day, including the lunch break. They are the culmination of the Police Services Board's policy and procedure directives and rules as provided for in the Police Services Act.
¶ 37 Knapp testified that when a police officer leaves the force or retires the officer's Memorandum Books are retained by the last unit that the officer was serving in and are maintained according to the Record Retention Schedule of the force. The only exception to the mandatory rule of keeping contemporaneous notes are in specific exceptions granted by the Chief of Police in specific special circumstances such as drug investigations when an officer is working undercover.
¶ 38 Failure by an officer to comply with these mandatory instructions has many implications, as can be seen by a review of the material found in Exhibit 36. Included in these implications are possible disciplinary action against the police officer.
¶ 39 For the purposes of this Application, counsel for Mr. Hutchens stresses that the failure by the officers to follow standard police note taking procedures and their consistent failure to take adequate notes concealed the origins of the investigation, the initial involvements of Constables Reynolds, Thomson and McKinney, and the circumstances of key witness interviews and the police acquisition of crucial documents. These "missing notes" and this missing "paper trail" were the subject of defence requests for disclosure, documented above, and the ultimate reason for the delay in this matter coming to trial.
b) The Evidence of Constables Reynolds, Thomson and McKinney:

i) George Reynolds
¶ 40 Reynolds testified on the 24th of October, 1995.
¶ 41 George Reynolds retired on the 1st of April, 1995, after thirty years and eight months as a member of the Municipality of Metropolitan Toronto Police Force. In the years leading up to his retirement he was in the Detective office of 52 Division in downtown Toronto, primarily charged with investigating frauds. During the time the accused were being investigated and subsequently charged with the charges before the court, Reynolds was the senior detective working in the fraud office, and responsible for the operation of the 52 Division Fraud office one-half of the time. His role in the charges before the court included investigation of the frauds, along with O.I.C. Constable Jeff Thomson and Constable Richard McKinney. He was Senior Detective in the Fraud office supervising both Thomson, and McKinney, who was a trainee. Reynolds attended court and bail hearings, and prepared some of the police paperwork with respect of each accused. He was involved in the arrest of Charles Tritt, Tanya Hutchens and on two occasions, Sandy Hutchens. He participated in the interviewing of Daniel Greenberg regarding count 17 in April of 1994, a lengthy 2 to 3 hour taped interview with Charles Tritt in January of 1994. Thomson is listed as the O.I.C. for counts 1, 2, 3, 6, 8, 9, 11, 12, 13, and 17 in the Crown Binder, prepared two to three months after the last charges were laid and the original brief prepared. (Exhibit 19)
¶ 42 Reynolds is listed as the "2d O.I.C" in the Crown Binder with respect to Charges 11, 12, 13 and 17. In material produced by the Crown on the 24th of October, 1995, in Court before me, he is listed as the O.I.C. for Count 17. Reynolds attended two of the judicial pre-trials.
¶ 43 According to the testimony of Richard McKinney, on the 13th of September, 1996, Reynolds was his supervisor and initially may have been in charge of the case prior to November 3rd, 1993. (See Transcript of 13 September, 1996, page 22.) Reynolds also, according to McKinney, was responsible for checking his notes as to the initial investigation of these charges.
¶ 44 Given this level of involvement in the case, one would expect to find detailed notes from Reynolds in the Crown Binder. In fact the only Reynolds notes found in the Crown Binder were those of Tuesday, the 16th of November, 1993, the date of an arrest of Sandy and Tanya Hutchens.
¶ 45 When cross-examined as the whereabouts of the notes detailing his involvement in the case, on the 24th of October, 1995, he stated under oath before me at page 14 that some of his notes were at home, some were at the station and "there may be some in this file." At the conclusion of Reynolds' testimony, he undertook to locate the balance of his notes involving this case, and provide them to the Crown for disclosure to the defence. He also agreed to make himself available for questioning on those notes, if the defence required. Those notes were never produced in these proceedings.
¶ 46 When Reynolds was questioned on the 24th of October, 1995, about his involvement with respect to Count 17, the threatening charge, involving a law student, now lawyer, Daniel Greenberg, a separate Crown Confidential Instructions with respect of Count 17 was produced and filed as Exhibit 9. That brief describes Detective Reynolds as the O.I.C. with respect to Count 17. The Reynolds will-say that found itself into Exhibit 9 makes no mention of his interviewing Greenberg. After initially stating under cross-examination that he had had no contact with Mr. Greenberg in the investigation of Count 17, and had never met Mr. Greenberg, he eventually admitted that he had in fact interviewed Greenberg over the phone and prepared Greenberg's will-say. In Exhibit 9 there is a will-say from Detective Reynolds that had never before been disclosed to the defence. When asked to explain this, Reynolds claimed that all of his investigative notes, including those with respect to Count 17, had been given to Constable Thomson.
¶ 47 In cross-examination, Reynolds stated to Robert Carter that he had prepared notes with respect to his dealings with Mr. Tritt. Despite attending at the judicial pre-trial when disclosure of those notes were requested, Reynolds feigned no knowledge that those notes had never been produced to the defence.
ii) Constables Jeff Thomson and Richard McKinney:
¶ 48 Thomson testified on the 23rd and 24th of October, 1995 and the 13th, 14th and 16th of May, and the 5th of September, 1996. On the 13th of May, 1996, the Crown filed as Exhibit 16 in this proceeding the "Anticipated Evidence of P.C. Jeffery Thomson on Motion to Stay".
¶ 49 Thomson testified that the Crown Brief in binder form was prepared in March of 1994, two months after the arrest of the accused on the Nousci charges, counts 14, 15, and 16 in early January of 1994. The Crown Brief for the Greenberg threatening charge was prepared in May of 1994, shortly after those charges arose at the end of April.
¶ 50 A Crown Binder, similar in Content to Exhibit 19, was prepared and left at the Crown law office at Old City Hall in or about April of 1994. He cannot say if that material was actually received by the respective defence counsel. Throughout this proceeding, Thomson never met with the Crown to sort out exactly what was received by the defence, and what wasn't.
¶ 51 In cross-examination, Thomson admitted that he never obtained a will-say from the Immigration Officer, Decaire, who was his principal informant on Counts 1, 2 and 6, and listed as a witness in the Crown Binder. He conceded that although he had received documents from a lawyer, Sheldon Esbin, that were potentially relevant and to be used in the prosecution of Counts 8-13, he never noted in his officer's notebook that documents were received, or the nature of the material received. He never questioned Charlotte Sarrazin, the complainant in Count 11, and a Crown witness for count 9, regarding the Amendment to the Agreement Of Purchase of Sale dated 19 May, 1993, that would be a full answer to Count 9. With respect to Counts 8-12, involving the complainants Dini and Sarrazin, Thomson admitted obtaining Hutchens personal banking records from Canada Trust through a "relationship" he had with the Canada Trust security department without a search warrant or a subpoena. Despite defence counsel's repeated requests in writing, and a formal request at the Pre-Trial on the 18th of January, 1995 for the notes regarding the obtaining of these banking records, Thomson never provided any documentation of this until questioned on the 14th of May, 1996, in this application.
iii) Disclosure of The Initial Investigation
aa) Melnic, Tomescu, Veres and Paza

¶ 52 On the 14th of July, 1994, after receiving Thomson's notes, the defence faxed Constable Thomson with a request that they be provided with the details of Thomson's interview with Thomas Barnes, including a will-say and documents received from him. In this letter, counsel notes that the first entry in Thomson's notes is the 3rd of November, 1993 and questions:
"Was that your first involvement in connection with this matter?"

The letter was faxed to Thomson a second time on the 18th of August, 1994, along an earlier related disclosure request dated the 6 July, 1994. (Exhibit 20, pages 76, 86, 92)
¶ 53 In testimony before me Thomson denies any recollection of the original letter, but some recollection of the ongoing issue of his "first involvement". He testified that he didn't realize that this request was referring to his personal involvement.
Comment
¶ 54 He, in fact, made no new disclosure at all on even his mistaken understanding of the question until the Crown was preparing to respond to the Disclosure Application returnable in court on the 6th of April, 1995, at which time he advised Crown, Michael Innes of the involvement of Constable McKinney, in interviewing the immigration complainants prior to the 3rd of November 1993.
¶ 55 As a result of that, Innes instructed him to prepare Supplementary Will-says from McKinney and on his own behalf. These new will-says were provided to the Crown and then the Defence on the 24th of April, 1995. Thomson's Supplementary Will-say is one page, entitled "revised April 6 1995" and purports to summarize his involvement in the case. It states that in November
"I became aware of three occurrences naming the accused as a suspect."

He states that these "occurrences" were disclosed to the defence since December of 1993, and were originally assigned to Constable McKinney. His next involvement, in the case, according to this will-say, is to interview Hutchens at the station on the 3rd of November, 1993. In the will-say, he then purports to summarize the rest of the disclosure issues by stating that he has disclosed the documents obtained from victims or witnesses, and the immigration flies seized by search warrant. On the 24th of April, 1995, in addition to this new will-say, he provides photocopies of his notebook for the 6th of April, 1995, which records interview with "Zenaida Paza" and "Susan Meder, Immigration Worker." In addition, in the same disclosure package received by the defence on the 24th of April, 1995, Constable McKinney provides a Will-say, one page, undated, that purports to summarize his role prior to the 3rd of November, 1993, in interviewing Tomescu, Veres, Melnic and Paza. There is also attached a half page "Further Anticipated Evidence of Zenaida Paza" dated 6 April, 1995. There is nothing from Constables Reynolds or Martin. No mention was made at this time in the Supplementary Will-says of any other investigative steps taken prior to 3 November, 1993, such as the contacting of Immigration Canada, or the speaking to other witnesses, such as Barnes and Bowler. (Transcript of 16 May, 1996, p. 29, Exhibit 20, pages 18-24)
bb) Immigration Canada, Percy Decaire
¶ 56 Thomson testified that he only realized on the 16th of May, 1996, while testifying in Court before me, that the repeated defence requests for his notes with request to his "first involvement" in the case was seeking anything more than his "involvement" in the arrest of the accused on the 3rd of November, 1993. He specifically did not believe the defence was interested in the fact that he had spoken with Immigration Canada Removal Office, Percy Decaire, and sent them a letter on the 27th of October, 1993. (Transcript of 5 September 1996, p. 114, Exhibit 22)
cc) Witnesses Barnes and Bowler
¶ 57 Damien Barnes and Douglas Bowler were business associates of Mr. Hutchens who apparently had a falling out with Mr. Hutchens shortly before the original charges in this matter were laid. Barnes and Bowler had contact with both Constable Thomson and Constable McKinney, and provided documents to Thomson and McKinney, which the defence alleges were stolen from Hutchens. Douglas Bowler provided a written statement to the police, which was transcribed by Constable McKinney on the 13th of October, 1993. (See Ex. 19, tab. 25 and Exhibit 32.) McKinney made no notebook entries on the 13th of October that would indicate that he interviewed Bowler, and cannot recall if the Bowler statement was transcribed from other documents. One of the meetings that took place with Barnes and Bowler was at 52 Division on the 10th of November, 1993, shortly after the first arrest of Mr. Hutchens. Thomson's notes disclose that he met with them and accompanied them to their office, and documents were turned over to the police. Nowhere in his notes or in the disclosure to the defence was it revealed what these documents were. It was only after reviewing all the disclosure, and while cross-examining Thomson in this application, that the defence learned that in this period the police obtained from Barnes and Bowler the Rent Roll for 175 Cosburn, potentially evidence for Count 4. (See Ex. 27.) Although Thomson has notes of the meeting, McKinney took no notes of the meeting, although he admitted in testimony that he may have been involved in the meeting at the station. The lack of notes from McKinney effectively concealed his investigative role in this stage of the police investigation.
iv) Obtaining and Disclosing of the "Immigration Files"
¶ 58 The contents of the Federal Department of Manpower and Immigration files were essential for the defence to the charges in Counts 1, 2, 5 and 6, as each involved allegations that Mr. Hutchens had received remuneration as an immigration consultant for work he had not actually done. >From the outset of these proceedings counsel for Mr. Hutchens was seeking the disclosure of the Federal immigration files relating to these charges.
¶ 59 In the initial Judicial Pre-Trial before Regional Senior Judge Kelly on the 30th of June, 1994, both Constable Reynolds and Thomson were present when the defence requested disclosure of the immigration files. Reynolds testified before me that he knew of this request and that Thomson was responsible for the follow up. Thomson was in communication with Canada Immigration officers in May and June immediately prior to the pre-trial. (Transcript, 24 October, 1995, pp. 17-20, Exhibit 20, pp. 92, 94) Despite this, Thomson testified that it was only at the court appearance before Judge Hogg on the 20th of September, 1994, it "became clear" to Thomson that the defence wished access to the immigration files with respect to Counts 1, 2 and 6, concerning Melnic, Tomescu and Veres. When he made inquiries at the Federal Department of Manpower and Immigration he learned that a Criminal Code search warrant would be required. He only obtained that warrant on the 7th of November, 1994, some five months after the Judicial Pre-Trial where the request was that these files be obtained. This material was obtained and disclosed to the defence at the end of November and the beginning of December of 1994 and contained over 1000 pages of material. From this disclosure the defence learned that there was a further immigration file involving Count 1, the Melnic matter, that was located in Seattle, Washington, in the possession of Immigration Canada. Defence counsel Weisdorf, acting at that time for Hutchens on the immigration matters, in a letter dated 2 December, 1994, requested that the Seattle, Washington file be obtained by the Crown. (Exhibit 19, page 62)
¶ 60 Prior to the Judicial Pre-Trial on 18 January, 1995 with Regional Senior Judge Kelly, Detective Reynolds apparently made some efforts to obtain the Seattle file and advised Mr. Innes in a memorandum dated 8 December, 1994, that he could not obtain the file without "Clearance from the Privacy and Freedom of Information Section of the Citizenship and Passport Section of External Affairs Department." During the Pre-trial, the Crown took the position that it had no duty to obtain and disclose the Seattle files because they were now in Hungary, and the Crown did not have "possession and control" of them. At the Pre-Trial, Judge Kelly is quoted as saying, in effect: "If it is available, it should be produced." In a letter to the Crown dated 27 January, 1995, Mr. Stern asked that the Crown seek this file. This letter is forwarded by Crown Counsel Innes to Thomson. On the receipt of this letter from Innes Detective Thomson's response was to write on the letter "Not available." On the 8th of February Thomson then faxed to Reynolds a package of letters from Hutchens' counsel with respect to disclosure dated 29 September, 1994, and 11 and 27 January, 1995. (See Exhibits 20 and 25 and the summary above, under Chronology.) The covering note reads:
"George: For your info. Read this crap and return to me. Jeff."

¶ 61 The reply from Reynolds, which appears on the same page:
"Jeff. Now I wonder if Mike Innes has any doubts now about Stern being an ass-hole. G.R."

¶ 62 Not surprisingly from these notes, Reynolds took no steps to obtain the Melnic file. Thomson states that he learned of this at the end of April of 1995 and took on the task himself. On the 19th of May, 1995 Thomson spoke to local Canada Immigration staff who advised that the file could be obtained with a signed release from Ion Melnic, a suggestion that had already been made at the Judicial Pre-Trial before Judge Kelly on the 18th of January, 1995. On the 25th of May, the Melnics signed the release, and on June 5th the material was faxed to the Seattle office. The Melnic file was received by the Crown on the 22nd of August, 1995, from the Ottawa Freedom of Information Section and disclosed to the defence shortly thereafter.
2) A Detailed Review of Late Disclosure Resulting in Delay:
a) Exhibit 19 - The Crown Binder
¶ 63 In approximately March or April, 1994 (The Crown has no records with respect to this), a consolidation of all of the existing disclosure to Sandy and Tanya Hutchens was photocopied by Constable Thomson, indexed, placed in a binder and left at the Crown's Office at Old City Hall. It should be roughly what is now found in Exhibit 19, although neither Thomson or Crown counsel can be absolutely sure that there was nothing added or taken out since then. The defence was not notified that this binder was at the Crown's Office and they never received it. Mr. Innes believed in January of 1995, that the defence had these bound volumes, but conceded on the record of this hearing that he does not believe that the defence received their binders and can't say what became of them. Neither Reynolds nor Thomson ever checked to see if the defence had actually received this material. (Transcript, 24 October, 1995, pages 45 and 83)
Comments
¶ 64 The Crown Binder, in the form prepared, as represented by Exhibit 19, is a standard preparatory step for the Crown, and is intended to provide organization to the Crown presentation of the case. In fraud cases, where there is a documentary evidence, this type of organization is especially important for the Crown. Exhibit 8, Reynolds' undated letter to Crown Counsel Innes, attests to the central role of this binder for the Crown. In like manner, disclosure of the Crown case in this manner is of great assistance to the defence, and generally should answer many of the "paper trail" type of questions with respect to how documents were obtained and from whom. It thus was a significant failing of the Disclosure process that in this proceeding, the Crown Binder did not in fact reach the defence.
¶ 65 Having acknowledged the central role of the binder for the defence, I do not wish this comment to suggest that I accept Reynolds' view, as set out in Exhibit 8, that the Crown binder, as prepared by Thomson is fully "satisfactory" as a vehicle for disclosure in this case.
¶ 66 From the vantage point of this application, the Crown Binder, Exhibit 19, was intended to be a consolidation of all the disclosure prepared by the Crown to March or April of 1994, and the continuing disclosure prior to the commencement of this hearing on the 16th of October, 1995. In my view, the Binder still has a number of deficiencies, which may best be discussed by a review of the binder and other exhibits in this application.
¶ 67 Counts 3 & 4 - These are alleged frauds by the accused against Arman Jalili, involving an alleged mortgage commitment from Britcom, and the rents for 175 Cosburn, Toronto. Carmen Volpe is listed as a witness, and a will-say is in the Crown Binder, Tab 19. The will-say is undated, does not disclose, where it was taken, or who was present. Thomson admitted in cross-examination that he interviewed her, although there is no record of this in his notes. A Mr. Raimondo is referred to in the statement, and Thomson believes he was interviewed as well, but there is no record of this in Thomson's notes. (Transcript, 14 May, 1996, pages 30-31)
¶ 68 Count 7 - Count 7, in the Crown Binder, the allegation of a threat to Diane Cuddy, has no will-say from any officers or the complainant, and no officer's notes of the investigation. The only documentation of the charge is the original occurrence report. (Exhibit 19, Tab 7)
¶ 69 Count 14 - Count 14, in the Crown Binder, the allegation of fraud by Mr. Hutchens against Alfred Nuosci, has no synopsis, and no indication that Nuosci, the complainant in counts 14, 15 and 16 has himself a record for fraud that was well known to the 52 Division Fraud Office, and Constable Thomson. The possibility of Nuosci's antecedents surfaced when Judge Bigelow indicated there was a possible conflict with him hearing the Disclosure Application on the 6th of April, 1995, and was confirmed by the Crown in a document received by the defence on the 18th of December, 1995. (Exhibit 20, p. 28, Transcript, 14 May, 1996, p. 131)
b) Exhibits 8, 9, 12, 13, 14, 15, 22
¶ 70 Exhibit No. 8 - This is an undated letter from Constable Reynolds to Crown Counsel Innes which was not disclosed until the 24th of October, 1995, in Court. Reynolds testified that this was prepared approximately one year before he testified. This letter reflects Reynolds' opinion that the binder is "satisfactory for the purposes we discussed".
Comments
¶ 71 This letter was confirms that Reynolds was still involved in a supervisory role in approximately October of 1994, and yet none of this supervisory work is reflected in his notes. If this comment is intended to show that the binder provided full disclosure to the defence, I must disagree for the reasons set out below.
¶ 72 Exhibit No. 9 - This is the Crown Summary of The Threatening Charge (Daniel Greenberg), Count 17 on the information. While reviewing the Crown materials, on the 24th of October, 1995, Mr. Stern, for Mr. Hutchens, discovered the Defence Copy of this Summary, marked "Defence Copy" which was not in the Crown Binder and had not been disclosed.
Comments
¶ 73 I find that there was no disclosure of the Crown's brief with respect to Count 17. It is an example of the Crown's failure to disclose promptly. In addition, the document itself, reflects Reynolds' continuing failure to keep a record in his notebook of his investigative role. His will-say in the brief only relates to his arrest of Hutchens. He states in his testimony on the 24th of October that in the company of, he believed, Constable Martin, he investigated the Greenberg matter and made notes concerning the man which he placed in the Crown brief. The Martin notes, Exhibit 13, do not cover this period. Exhibit 9, the Brief, does not contain Reynolds', or Martins', notes of the investigation. A third officer, Gord Connor, is listed as an officer who assists in the arrest. There are also no notes from him. The Policy and Procedures with respect to contemporaneous note taking by members of the Metropolitan Toronto Police are being ignored.
¶ 74 Exhibit No. 12 - These are McKinney's 2 sets of notes, a typed will-say (he had no contemporaneous notebook entries) confirming the fact of his having conducted investigative interviews of Tomescu, Veres, Melnic and Paza leading up to the arrest of Sandy Hutchens on the 3rd of November, 1993, and photocopies of his notebook entries for 6 April, 1995, and 4 and 16 November, 1993. The 6 April notes include further information from Zenaida Paza regarding count 5. The 16 November notes include the arrest and initial questioning of Sandy Hutchens on that date for the Dini and Sarrazin matters.
Comments
¶ 75 The one page supplementary will-say from McKinney was disclosed on the 24th of April, 1995 in response to the original disclosure application, herein. It does nothing more than confirm that McKinney did indeed have an investigative role prior to the 3rd of November, 1993. It summarizes, rather than provides a verbatim record of what was learned in those interviews. For example, under cross-examination on the 13th of September, 1995, at page 103, he acknowledges that he transcribed a statement from Douglas Bowler which is dated 13 October, 1993, but he cannot say when or where he did this, or whether he was working from other documents. This lack of note taking leaves the defence with no contemporaneous record of those interviews, as would be expected by the orders and instructions to members of the Metropolitan Toronto Police Force, as set out in the Policy and Procedures Manual and the testimony of Sergeant John Knapp.
¶ 76 Constable Thomson knew when he became involved as an O.I.C. that McKinney had interviewed certain victims and witnesses. Yet he waited until April of 1995, some 18 months later to ask McKinney if he could recall his role in the investigation. (Transcript, 13 May, 1996, pp. 122 - 128)
¶ 77 Exhibit No. 13 - These are photocopies of Constable Tony Martin's notes of the arrest of Sandy Hutchens on the 3rd of November, and the arrest of Sandy and Tanya Hutchens on the 16th of November, 1993.
Comments
¶ 78 They are the only photocopies of notes that found their way into the Crown Binder, Ex. 19, which was filed on this application.
¶ 79 Exhibit No. 14 - These are photocopies of Constable Reynold's notes of the arrest of Sandy Hutchens and Tanya Hutchens on the 16th of November, 1993.
Comments
¶ 80 The photocopy of Detective Reynolds' notebook entries of the arrest of Tanya and Sandy Hutchens on the 16th of November, 1993, are all that have been produced for this application. They reveal nothing of his involvement with the arrest and questioning of Mr. Tritt (admittedly not part of the Crown Binder for Sandy Hutchens, but within the ambit of this application and his questioning by Mr. Carter on the 24th of October, 1995). They reveal nothing of involvement in early stages of the investigation, prior to the 3rd of November. With respect to the arrest, they do not disclose the physical search of Tanya Hutchens, which he later acknowledged had taken place. (Transcript, 24 October, 1995, pp. 13, 14 - 20) They do not disclose his dealings with the investigation of Counts 14, 15 and 16, involving Arthuro Nuosci, although he admitted to talking to Nuosci by phone about his complaints against Mr. Hutchens. (Transcript, 24 October, 1995, page 37) I am left with two paths of reasoning. Either, he didn't take notes, in breach of the Policy and Procedure Manual, or he did, and chose either to conceal or simply not provide them. Either path thwarts the defence right to disclosure.
¶ 81 Exhibit No. 15 - These are photocopies of Constable Thomson's notebook entries, related to these matters, chronologically, from the 3rd of November, 1993, to the 6th of April, 1995. In addition, he has prepared typed summaries of his activities on 11, 19, 24 & 25 May, 1995, the 5th of June, 1995, and 10, 16 and 22 August, 1995, regarding the Melnic Immigration file.
Comments
¶ 82 These photocopies, and the "revised April 6, 1995" will-say do not disclose the investigative steps taken by Constable Thomson with Immigration Canada, Percy Decaire, in October of 1993. They fail to disclose numerous "informal" encounters between Thomson and Hutchens which Hutchens refers to in his affidavit. In cross-examination on many of these incidents, Thomson attempts to minimize or simply deny the encounters. He has not kept a written record of most of his attendances at Court, Judicial Pre-trials, and discussions with Counsel regarding disclosure issues. Where he did take notes, in the case of the 10 November, 1994 pre-trial, he did not produce those notes. (Transcript, 13 May, 1996, page 19) He has no notes with respect to when and how he received various documents that form the basis of significant portions of the evidence of this case. A defence generated "Further Evidence of Thomas Barnes" received by the defence on the 8th of September, 1994 has a long list of documents given to the police that Barnes had obtained while in the employ of the accused Hutchens which he and Douglas Bowler turned over to Thomson and McKinney on the 10th of November, 1993. This list of documents was not supported by any notebook entries of either Thomson or McKinney (see Transcripts, 16 May, 1996, pp. 89 - 93 [Thomson], 13 September, 1996, p. 103 [McKinney]) even though both were present, and McKinney transcribed a statement from Bowler on or about that date (Exhibit 19, tab 25) does not mention the 175 Cosburn Rent Roll, which was undoubtedly obtained from Barnes or Bowler at this time. The "revised April 6, 1995" will-say simply fails to mention the source of Mr. and Mrs. Hutchens' Canada Trust bank records, the 175 Cosburn rent roll, or a number of other documents. It cannot be sufficient to just baldly state that documents were "obtained from victims or witnesses" as Thomson does in this will-say.
¶ 83 The defence was provided with no specific list of the documents or witnesses through whom the documentary evidence would be produced. Someone looking at these documents would not be able to tell from whom these documents were derived. Thomson is aware of the defence problem, but does nothing to remedy it. In his testimony on the 13th of May, 1996, Thomson admits that beyond this very brief statement, received 8 September, 1994, and his supplementary statement, undated, of around the 4th of April, 1995, that "all the documents that came into my possession were obtained from the victims at the time of the interview" he has not provided the defence with the origin of documents. He concedes that he never sat down with Mr. Innes and worked through where the different documents came from and in order to provide this requested disclosure. (Transcript, 13 May, 1996, pp. 92 - 101, 117, 129 - 132, 144 - 146) Thomson, in his testimony before me denied receiving faxes and other communications from the defence, a proposition that cannot be easily evaluated because he does not record when he does receive written communication from defence or the Crown. Again, he has failed to comply with the orders and instructions in the Policy and Procedures Manual. In his unwillingness, as the principal O.I.C., to effectively monitor whether Disclosure has been received by the defence, he has caused a significant and unnecessary delays in the resolution of the disclosure issues.
THE EVOLVING NATURE OF POLICE DISCLOSURE UNDER THE CHARTER:
¶ 84 The precise procedure for Disclosure in Criminal Proceedings, unlike that in Civil Proceedings, is not defined by the Rules of Practice, as such, and despite the Martin Committee Report and the various procedures implemented in various jurisdictions as well as the evolving jurisprudence in the area, it is an evolving area of procedure. (See, The Disclosure Obligations of The Prosecutor, a paper delivered at the National Criminal Law Program, Criminal Procedure and The Charter, St. John's, Newfoundland, July 1995, by Bart Rosborough, Alberta Justice Department.) For this reason, reasonable people may well differ on what is required by Stinchcombe v. The Queen (1991) 3 S.C.R. 326, and the reported cases that have followed. It is at least partially because of this, that an application such as the one before this court must be brought.
¶ 85 In R. v. Khela (1998), 126 C.C.C. (3d) 341, the Quebec Court of Appeal upheld a stay ordered by the trial judge prior to a second trial where the Crown was continuing to fail to disclose to the defence certain evidence. In the original trial, which ended in 1986, a jury rendered a guilty verdict on a charge of conspiracy to commit the murder of persons aboard an aircraft and the respondents were sentenced to life imprisonment. In 1991, the Quebec Court of Appeal quashed that verdict and ordered a new trial for reasons which remained relevant throughout the subsequent proceedings. In ordering a new trial, the court held that the trial judge erred in failing to order that the Crown disclose to the accused pre-trial investigation material, the name and whereabouts of an informer, and to make the informer available for questioning by the accused. At the second trial, before Steinberg J., difficulties emerged in the interpretation of those requirements, and the respondents moved successfully for a stay of proceedings. The Crown appealed and in 1994 the Quebec Court of Appeal allowed the appeal, quashed the stay and ordered a new trial. The respondents appealed that judgment to the Supreme Court of Canada and in 1996, the majority varied the decision of the Court of Appeal (No. 2) but affirmed the order for a new trial, while agreeing that "it would not be appropriate to stay the proceedings without affording the Crown an opportunity either to comply with the terms of the judgment of the Court of Appeal (No. 1) or to move to vary it on the basis of information that has come into the Crown's possession since the date of the judgment." The Supreme Court nevertheless allowed the appeal, mainly to require the trial to proceed according to the original directives related to the three disclosure requirements referred to in the judgment of the Court of Appeal (No. 1). The Court concluded in adding that "if there has been non-compliance, a stay is the appropriate remedy".
¶ 86 At the third trial, the respondents were informed by the Crown that the Crown would try to comply with the release of a 17 page will-say taken by the police on the 15th of March, 1992, just prior to the rendering of Steinberg J.'s decision staying the charges. That new evidence and other evidence which came to light through the examination of other witnesses, mainly police officers, before Martin J., triggered a further motion for a stay. On August 9, 1996, Martin J. ordered a permanent stay due to the breach by the Crown of its duty to disclose.
¶ 87 Martin's reasons, reported at 39 C.R.R. (2d) 68 at p. 93, upheld by the Quebec Court of Appeal, are instructive:
"1. It failed in its duty to communicate to the petitioners at least subsequent to Stinchcombe, if not before, relevant material contained in police flies. It was not until June 1996 that the petitioners succeeded in extracting this information in the course of the hearing of this motion. This was compounded by the Crown's insistence before the appellate judges that save for the identity and whereabouts of Billy Joe disclosure was complete.
2. It failed to communicate to the petitioners and to Steinberg J. On March 16, 1992 at the very least the fact of the existence of Billy Joe's statement reduced to writing made the previous day to Hunter and St-Onge.
3. It failed to communicate the foregoing information concerning the statement of Billy Joe to the appellate judges respectively of the Quebec Court of Appeal and the Supreme Court of Canada

¶ 88 It is also clear that the courts have had to tread carefully in deciding how to interpret the broad and general language of s. 11(b). (See Sopinka, J.'s comments on this in Morin, 77 C.C.C. (3d) 1, at page 11.)
CHARTER ANALYSIS - SECTION 11(B) - THE FOUR PRINCIPLES:
¶ 89 In R. v. Askov (1990), 59 C.C.C. (3d) 449, the Supreme Court enunciated the four factors to consider in evaluating whether the delay in a case coming to trial was unreasonable and warranted the Charter remedy of a stay. These four factors were further developed in R. v. Morin (1992), 71 C.C.C. (3d) 1. The facts in Morin were quite simple. It was a straightforward drinking and driving case that arose in Ontario in January of 1988 that took 14 1/2 months to come to trial. The trial judge concluded there had been no prejudice and no 11(b) breach. The summary conviction appeal Judge stayed the matter citing the lack of institutional resources as the principal cause of delay. In upholding an Ontario Court of Appeal decision that the delay did not warrant a stay, Sopinka, J., speaking for the Supreme Court of Canada set out the factors to consider when deciding whether the delay was unreasonable:
1. The length of the delay;
2. Waiver of time periods;
3. The reasons for the delay, including

(a) Inherent time requirements of the case;
(b) Actions of the accused;
(c) Actions of the Crown; (willfulness)
(d) Limits on the institutional resources;
(e) other reasons for the delay, and

4. Prejudice to the accused

¶ 90 In R. v. Atkinson et al. (1991) 68 C.C.C. (3d) 109, two accused were involved with numerous charges of fraud involving millions of dollars in January of 1989. Further charges were laid in June. The two were granted bail the day of their arrest, but for most of the period were required to report twice a week and to remain within the province. The case was adjourned from time to time until 9 August, 1989, which was intended to be a date for a pre-trial conference and to set a date for the preliminary inquiry in the matter. This delay was required so that the police officer in charge of the case had sufficient time to prepare disclosure briefs and defence counsel would then have sufficient time to review those briefs. In fact, on August 9th there was no pre-trial but a target date was set for the preliminary hearing of April, 1990. The Crown brought a successful application in April of 1990 to have the defence counsel removed for a conflict of interest, and the matter was further adjourned to May of 1990 to allow the defence to retain new counsel. At that time a new preliminary inquiry date of the 13th of August, 1990 was set aside. Prior to August, 1990, is was agreed by counsel that the accused would re-elect trial in Provincial Court, and only three days would be used for the trial, it would then be adjourned to a new date to continue the trial for blocks of two weeks and four weeks commencing February of 1991. In December of 1990 a successful application was made to stay under 11(b). The trial judge considered the delay from the date the charges were laid until the time when the application for stay was made. The judge concluded that insufficient resources had been devoted to the investigation, with the result that there was a delay in disclosure. The judge also attributed the delay due to defence counsel's conflict as attributable to the Crown, as the Crown could have brought the application to have counsel removed earlier than April of 1990.
¶ 91 In setting aside the stay and ordering a new trial in Provincial Court, the Ontario Court of Appeal concluded that there had not been a breach of the accused's right to a trial within a reasonable time. In ruling on the causes of the delay, the court concluded that one of the important issues was the complexity of the case and the effect that had on disclosure. The more complex the issues are, the more formidable the disclosure process will generally be. The evidence from the investigating officer was that he had to interview approximately 400 witnesses with respect to 31 counts, 30 of which were discrete transactions. The investigating officer had to sift through "tens of thousands of documents". The witnesses included witnesses from the fire marshall's office and experts from the University of Guelph, Ontario Veterinary College, hundreds of witnesses and sift through thousands of documents. The fraud allegations totalled more than $7,000,000.
¶ 92 The over all delay in this case was a period of 23 months. The court concluded that the conflict problem with counsel could not be attributed to the Crown, as the trial judge had ruled, and that the inherent time requirements for preparation of this very complex case militated against a stay. As well, he considered that there had been little prejudice to the accused due to the delay. In the result the stay was set aside.
R. v. Hawkins and Morin (1991) 6 O.R. (3d) 724
¶ 93 The accused were charged with in January of 1988 with conspiring to attempt to obstruct justice. The accused H., a police officer, was also charged with corruptly accepting money from the accused M. to procure or facilitate the commission of an offence and with four counts of obstruct justice. Approximately 35 months later, in December 1990, the High Court trial judge stayed the proceedings on the ground that the right of the accused to be tried within a reasonable time had been violated contrary to s. 11(b). H. was a Waterloo regional police constable who, at the time the offences were alleged to have been committed, from October 1984 to January, 1988, was a police officer assigned to gather intelligence on the activities of the Satan's Choice Motorcycle Club in Kitchener. M. was alleged to be a member of that club and to have bribed H. in order to obtain confidential information. The allegations extend over a period of four years and involve numerous interceptions of private communications. Hundreds of items had been seized pursuant to search warrants which were under attack. The preliminary inquiry extended over 13 days, at which time nineteen police officers were called and 185 exhibits entered. The Crown's principal civilian witness, G., recanted her evidence. Following this she was recalled as a witness by her own counsel and her further testimony was the subject of procedural issues. Ten days after the committal for trial, she married H. This necessitated additional pre-trial litigation and altered the Crown's approach to the case. Counsel for H. had to remove himself from the record, necessitating further delay. The highly sensitive nature of the prosecution necessitated special prosecutors and an out-of-town judge. The proposed length of the High Court trial was to be four to six weeks, exclusive of pre-trial motions. In setting aside the stay, the court made a number of useful rulings:
1) The following delay periods are not attributable to the Crown:

a) Intake requirements
b) As a result of express waiver
c) As a result of delay attributable to the defence:

i) H.'s change of counsel, would be if not expressly waived
ii) As a result of defence's Wilson applications
iii) As a result of the bad faith marriage of H. and G.

2) Latitude in complex cases should recognize "inherent time requirements"
3) Passage of time did not compromise the respondents' right to a fair trial
4) There was little complaint about delay during the course of the proceedings
5) There is no "legal limitation period" with respect to 11(b)

¶ 94 The Crown suggests that similar considerations apply in the case at bar. With respect, I disagree.
APPLICATION OF THE CASE LAW TO THIS CASE:
¶ 95 In the Crown brief there is an analysis of the total time period of case, pages 13 to 21, entitled "Unreasonable Delay." The Crown would have me conclude that the total time that can be characterized as delay with respect to the Hutchenses is 10 months, and with respect to Mr. Tritt, 6 months. I wish to address the analysis he uses in reaching this conclusion.
1) The Length of the Delay
¶ 96 The Crown concedes that the apparent delay of 56 months from 3 November, 1993 to 4 June of 1998 warrants an inquiry under Section 11(b) of the Charter. He suggests that the length of delay attributable to the Crown with respect to Mr. and Mrs. Hutchens is actually only 21 1/2 months, from 3 November, 1993 to 22 August, 1995, when Mr. Stern, on behalf of Mr. Hutchens, advised the Court that he would be seeking a judicial stay under 11(b). He states that the Crown period with respect to Mr. Tritt is 17 1/2 months since Mr. Tritt's charges commenced on 3 March, 1994. I disagree. The Stay Application commenced before me on the 16th of October, 1995. The Notice of Application was filed at my request on the 23rd of October. The material discloses that until the 16th the parties were still seeking to resolve the disclosure issues and commence the Preliminary Inquiry. I therefore conclude that the total delay attributable to the Crown is 23 1/2 months for the Hutchenses and 18 1/2 months for Mr. Tritt.
2) Waiver
¶ 97 The Crown concedes that the defence has never waived its rights under 11(b) and I concur.
3) The Reasons For The Delay
a) Intake
¶ 98 The Crown suggest 2-5 months based upon the reasoning in Atkinson. On the facts of this case, counsel was seeking disclosure for Mr. and Mrs. Hutchens from the 7th of December, 1993, and the matter adjourned to the 13th of January, for that purpose. The matter had to be adjourned again for two weeks to the 27th for disclosure. The initial brief was received at the Crown's office on the 26th of January, 1994.
Comment
¶ 99 In my view, the original seven charges involving the immigration matters and Mr. Jalili, if properly investigated prior to the arrest of Mr. and Mrs. Hutchens, should have taken no more than the six weeks originally allotted for this. With respect to Mr. Tritt, with only three charges, and ones that had already been investigated, I would suggest that one month is an appropriate intake figure.
b) Actions of the accused
¶ 100 Mr. Innes suggests that the following periods should be attributable to the accused.
i) 1 month July - August, 1994, due to defence adjournments for the birth of Mr. Stern's child and the passing of Mr. Carter's wife.

Comment
¶ 101 I agree, in that the transcript before Judge Paris on the 26th of July, 1994 indicates that counsel are seeking further retainers, as well.
ii) 3 months: October 28 - November 10, 1994 and December 9 to January 18, 95, due to Mr. Stern being ill on each occasion thereby making the Judicial Pre-Trial impossible.

Comment
¶ 102 I disagree, as the Pre-Trial of 10 November took place with Mr. Weisdorf, acting for Mr. Hutchens on the immigration matters. Counsel reviewed the disclosure to date and made the request for disclosure of the Seattle Melnic files. (See Weisdorf letter of 2 December, 1994, Exhibit 20, page 62.)
iii) 2 1/2 months: January 30, 1995 - April 6, 1995, to select a forum to argue Motion for Further Disclosure.

Comment
¶ 103 Under the Martin Rules, Disclosure is intended to be resolved in the Pre-Trial process, including Judicial Pre-Trials and Motions. In the circumstances of this case, where there were three judicial pre-trials, on the 30th of June, 1994, 10th of November, 1994 and 18th of January, 1995 leading up to the Crown letter of the 23rd of January, essentially forcing a court application, I attribute this time period to the Crown.
iv) 8 1/2 months: December 5, 1994 to August 22, 1995, due to the availability of court time on the week of 5 December, 1994, to commence the preliminary inquiry.

Comment
¶ 104 The evidence discloses that the police only reluctantly pursued the immigration files which were the foundations of Counts 1, 2, 5, and 6. It required continued requests in writing and the revisiting of the issue at the Judicial Pre-Trials. The search warrant which was ultimately obtained on the 7th of November, 1994, resulted in over 1000 pages of material reviewed and raised further valid disclosure concerns as set out in the Weisdorf letter of 2 December, 1994, and the Stern letter of 11 January, 1995. The late disclosure of this material and the further valid disclosure concerns that arose from a review of this material made the 5 December, 1995, target proceed date unreasonable. The possible use of the 5 December, 1994 court dates for the Preliminary Inquiry in this matter became untenable due to the late disclosure. I attribute the 8 1/2 months of delay from 5 December, 1994 to 22 August, 1995 to the Crown.
¶ 105 By my calculation the final calculation of the delay is properly 21 months for the Hutchenses and 16 1/2 months for Mr. Tritt.
4) Prejudice to the Accused
a) Inferred Prejudice
¶ 106 In Morin, Sopinka, J. has this to say about prejudice, at page 23:
"Section 11(b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a conclusion. We have decided in several judgments, including the unanimous judgment in Smith, supra, that the right protected by s. 11(b) is not restricted to those who demonstrate that they desire a speedy resolution of their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay."

b) Actual Prejudice
¶ 107 Sopinka continues, at page 24:
"Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to the 'vexations and vicissitudes of a pending criminal accusation', to use the words adopted by Lamer J. in Mills, supra, at p. 538. The fact that the accused sought an early date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability to make full answer and defence"

1) Legal Prejudice - The Section 7 Test - Has Non-Disclosure and Delayed Disclosure By The Crown Denied the Accused the Opportunity to Make Full Answer and Defence?

¶ 108 The defence argues that the manner of the investigation and the reluctance of the Crown and the police officers to secure the immigration files has resulted in an unreasonable delay in bringing the matter to trial. They point to the following:
a) Officers Thomson and McKinney's inability to take notes or provide thorough will-say statements concerning their investigation, including the issue of how relevant documents came into the Crown's possession infringed the defence's ability to locate witnesses and make full answer and defence;
b) The delay in providing disclosure and bringing the matter on for trial resulted in the unavailability through death of a key material witness, Douglas Bowler, and the unavailability of a number of other material witnesses, including complainants;
c) The lack of timely disclosure from the Crown has made trial preparation and advice by counsel as to the appropriate plea and election virtually impossible and prolonged the proceeding to such an extent that Crown has breached their right to be tried within a reasonable time.

¶ 109 Mr. Innes has devoted a considerable amount of his factum to these points. The Crown argument is essentially that disclosure, though piecemeal and delayed, was eventually made, and the matter was ready to proceed to either preliminary inquiry or trial by the 5th of December, 1994. If that date had been utilized by the defence, there could be no complaint of a Charter breach.
¶ 110 I propose to look at the problems with this submission, by reviewing the disclosure difficulties and the relevant case law.
1) The Pre-November 1993 Investigation & Police Memo Books
¶ 111 Mr. Innes submits that the disclosure that was ready by the 5th of December was "voluminous" and included all police notebook entries by all officers involved in the case. He suggests that any missing information, due to the failure of officers to make contemporaneous notebook entries could have no practical effect on the accused's legitimate Section 7 interests, and could not pass the "air of substantial reality" test in R. v. Wicksted (1996) 106 C.C.C.(3d) 385.
¶ 112 The difficulty with this submission, in my view, is that the record does not support this argument. The notes of Reynolds' initial involvement in the investigation, if there are indeed any, have not been produced by the Crown. It was not until the 24th of April, 1995 that the defence received the supplementary will-say of Constable Thomson, attaching three pages of notes from 6 April, 1995, and the will-say of Constable McKinney referring to having interviewed three of the immigration complainants, in what he referred to as "in length" discussions prior to 3 November, 1993. With the respect to the origin of documents, Thomson states "documents that have been disclosed to the defence were obtained from the victims or witnesses involved." There are no contemporaneous notes of any of this. The defence has no record of what was said to McKinney, and no notebook entries as to when documents were received. The manner of obtaining Canada Trust bank records with regard to counts 8, 9, 10, 11 & 12, and the 175 Cosburn rent rolls, Count 4, was not revealed.
¶ 113 In Wicksted, there were a series of unnoted or unrecorded conversations with witnesses, as well as missing documents, for which the defence sought disclosure. The trial judge held a voir dire on the missing disclosure and concluded that the accused's Section 7 rights had been breached. As a result, he stayed the proceeding. On appeal, the Ontario Court of Appeal concluded that although there had been a Section 7 breach with respect to the late disclosure of certain unrecorded interviews with a principle complainant, a stay was not the appropriate remedy. Goodman, J. states at page 397:
"Nor were counsel able to provide this court with any Canadian authority wherein a stay was granted for the failure of investigating police officers to record conversations with important witnesses."

He went on to conclude that there was no evidence that the Constable involved failed to record any relevant information that could go to the right to make full answer and defence.
¶ 114 In the case at bar there are different types of documentation of the evidence of each of the immigration complainants:
1) Ion Melnic - Four pages of handwritten notes, apparently part of a larger document, signed by Melnic, dated the 20th of October, 1993, from Bucharest, Romania.
2) Stefan Tomescu - A letter, dated 16 November, 1993, addressed to the Metropolitan Toronto Police, attention Officer McKinney, covering the complaint.
3) Zenaida Paza - Notes, one dated the 27th of October, 1993 and one undated, two will-says, undated, and a supplementary will-say of 6 April, 1995.
4) Ioan and Angela Veres - A statutory declaration, dated 16 November, 1993.

¶ 115 It would agree with Mr. Innes that the "substantial reality" reasoning in Wicksted would rule out a stay, based simply on the proposition that initial interviews were not recorded. However, in this case we don't actually have statements at all. There never were will-says for three of the four. There were no recorded statements. We have mostly self-generated material and no notebook entries from the officers as to the initial statements to the police. In my view, serious disclosure concerns remain.
¶ 116 The second concern of the defence, the contemporaneous documentation by the officers of the origin and manner of reception of documents, is still very much alive with respect to these Counts, as well as Count 4 - to the 175 Cosburn Rent Roll, and Count 12 - to the Toronto Dominion and Canada Trust bank documents.
¶ 117 In R. v. Farinacci (1994), 88 C.C.C. (3d) 1, the Supreme Court of Canada ordered a new trial where the trial judge edited a wire-tap package to the point of denying the defence the opportunity to evaluate the origin of Crown evidence and challenge its admissibility at the trial. Mr. Justice Sopinka, speaking for the majority, made it clear that the accused's right to make full answer and defence was prejudiced where they were denied the opportunity to conduct a full inquiry into the validity of the wiretap authorizations. Sopinka, J. emphasised that the excised material might be able to be used to impugn the contents of the material that was disclosed. This might well result in the exclusion of some of the interceptions, as well as derivative evidence acquired as a result of information obtained in those interceptions.
¶ 118 With respect to the evidence in three of the four immigration counts, 1, 2 and 6, involving the Melnics, Tomescus and Veres, the Crown materials are self-generated documents rather than will-says. An understanding of how the Melnic and Veres documents were generated, and for what purpose, and how each document came into the possession of the police would appear to be an important part of re-trial preparation and might well result in a challenge to the admissibility of some of this material. Although these arguments as to admissibility might well emerge at trial or a preliminary inquiry, it would seem that all of this information as to how the documents came into the possession of the police was originally known to the police and capable of being disclosed if proper contemporaneous notebook entries had been made.
2) To the Crown Obtaining and Disclosing of the Immigration Files

¶ 119 Although the immigration files in the possession of Immigration Canada were ultimately disclosed, the bulk in the beginning of December of 1994, and the Seattle Melnic file in August of 1995, the reasoning in Farinacci is equally applicable with respect to this material.
¶ 120 In the case of the immigration files, their significance is that they actually provide an answer to one element of the fraud allegations, namely, that Mr. Hutchens, and his company, Gold Star, had done no work for the clients, in that they demonstrate that work was being done.
¶ 121 In the case of these materials, it was not the trial judge, but the police and the Crown who were making a premature determination of relevance.
¶ 122 In R. v. Arsenault (1994) 93 C.C.C. (3d) 111, the New Brunswick Court of Appeal, in a sexual assault case, considered the obligation of the Crown to make reasonable inquiries of other Crown agencies or departments that could reasonably be considered to be in possession of evidence. In Arsenault, the Court of Appeal concluded that it was reasonable for the trial judge to require Crown counsel to make timely inquiries of the Ministry of Health and Community Services for disclosure of evidence relevant to the charges. Counsel failed to do that and the Court held that the trial judge's stay of the proceedings was appropriate.
¶ 123 In the case at bar, the police and Crown initially took the position that because the material was not in their possession, they had no duty to obtain it. This was despite the fact that they knew that Federal Privacy and Freedom of Information legislation prohibited the defence from obtaining this material on their own, without the consent of the complainants, hardly likely under the circumstances. Even after the Pre-Trial with Senior Judge Kelly, on the 18th of January, 1995, where it was suggested that the Crown could obtain the material with a consent from the Melnics, the police refused to act. The police reluctance to pursue this file denied the defence until August of 1995 material which was an answer to Count 1.
¶ 124 In my view, this recalcitrance by the Crown to obtain the immigration files parallels the facts in Arsenault and in conjunction with the lack of documentation of the initial dealings with the complainants in Counts 1, 2 and 6, results in a breach of Section 7 of the Charter with respect to Mr. and Mrs. Hutchens.
3) Charles Tritt:
¶ 125 Charles Tritt is the third accused in this proceeding. He was originally charged alone in a separate information sworn the 3rd of March, 1994, with three separate counts of fraud against three separate victims: Arman Jalili on the 31st of July, 1993; Stefan Tomescu on the 16th of June, 1993; and Ioan Veres on the 16th of June, 1993. He was represented initially in these proceedings by William Parker, and then Robert Carter. Robert Carter was counsel of record for Mr. Tritt before me on the 16th, 23rd and 24th of October, 1995. Mr. Tritt lost the services of Mr. Carter when Mr. Carter, a senior and highly respected counsel, and a valuable and knowledgable participant during the initial stages of the application, passed away. Mr. Tritt was without counsel until he retained John Weisdorf in the submission stage of the proceedings on the 3rd and 4th of June, 1998. In the court appearance of 12 January, 1998, Mr. Tritt attempted on his own behalf to argue the application on two distinct grounds: Firstly, the fact that he had been joined with the other accused and his charges were never severed, despite Mr. Carter's attempts to achieve this through discussions with the Crown; and secondly, because of the period of time that the matter had taken to come to trial. He had attempted to pursue his remedy without counsel by delivering a notice to the Crown, but I urged him to retain new counsel and have counsel argue the matters on the 3 and 4 June, 1998 dates. It was in this manner that he retained Mr. Weisdorf for those dates.
¶ 126 Since the Crown decision to join Mr. Tritt's charges to that of the Hutchenses in September of 1995, he has been seeking to have his counts proceeded with separately. The Crown's decision not to take this approach has left him as a virtual bystander through much of these proceedings, and he has been required to attend court on 18 separate occasions prior to the commencement of the application before me. For him, the delay in bringing these matters to trial has been the most significant factor. Due to the extended passage of time, he has lost the services of his original counsel, Mr. Carter, who passed away in April of 1996. In addition, the delay has resulted in the death of Douglas Bowler, a potential witness in the alleged fraud with relation to the Britcom mortgage offer to Arman Jalili, Count 3, which alleges that Mr. Tritt made the offer.
¶ 127 Mr. Tritt has a different role than the Hutchenses with respect to each count for which he stands trial. The lack of the immigration files does not have the same impact on him as it does on the Hutchenses.
¶ 128 However, the Crown's decision to join him with the other accused resulted in a delay that resulted in the loss of a potential witness Bowler, as well as his counsel, Mr. Carter. I have concluded that he, as well, as suffered a deprivation of his Charter rights under Section 7 and 11(b).
2) Personal Prejudice
Tanya & Sandy Hutchens:
¶ 129 Tanya and Sandy Hutchens are husband and wife. Mr. Hutchens run a para-legal service called "Gold Star Legal Services" which offers a myriad of services to the public including representation in such areas as Landlord and Tenant, Immigration, Real Estate, Financial Services and Traffic Tickets. Mrs. Hutchens assists him. It would appear that Mr. Tritt does some business with them with respect to the "Financial Services" area.
¶ 130 In the material filed and in their testimony they describe the prejudice they allege they have suffered from the Crown's failure to proceed promptly with these charges, which I will attempt to summarize:
1) Personal stress and personal trauma arising from the arrest and court proceedings:

a) A press release by the police at the time of Mr. Hutchens' arrest and personal remarks by the officers to family members, clients, lawyers and judges which had the effect of demeaning Mr. and Mrs. Hutchens and their para-legal skills.
b) Tension and arguments between Mr. and Mrs. Hutchens and between Mr. Hutchens and his three children because of the possibility of the incarceration of Mr. Hutchens as a result of a criminal conviction for these charges.
c) The possibility of losing custody of his daughter Jennifer in a contested custody proceeding between Mr. Hutchens and his first wife, in which these proceedings are alleged to raise questions regarding Mr. Hutchens' parenting skills;
d) The financial burden of each hiring and paying counsel for protracted legal proceedings;
e) The number of court appearances necessitated by the Crown's failure to disclose.
f) Officer Thomson's conduct in directing personal verbal attacks on both Mr. and Mrs. Hutchens while dealing with them in and out of court and in front of clients and family members;
g) Officer Thomson's unseemly interest in having Mr. Hutchens detained in an otherwise unrelated matter that has now been joined to these charges, during a time when Mr. Hutchens' counsel was unavailable to assist him with bail (Count 17);
h) Officer Reynolds' conduct at the time of the arrest of Mrs. Hutchens, in which he required her to be physically searched by a female officer, and threatened her with an internal examination.

¶ 131 Some of what is described here, such as the fear of incarceration, and the cost of defending the charges, is properly included under the category or inherent or inferred prejudice. However, after hearing this application, I have found that the police went too far, and caused considerable additional prejudice to the Hutchenses' legitimate liberty interests. To quote Mr. Justice Sopinka in Morin, at page 24:
"For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to the "vexations and vicissitudes of a pending criminal accusation", to use the words adopted by Lamer J. In Mills, supra, at p. 538. The fact that the accused sought an early date will also be relevant. Evidence may also be adduced to show that the delay has prejudiced the accused's ability to make full answer and defence"

¶ 132 A review of the Informations before to the Court discloses that Mr. and Mrs. Hutchens made 25 appearances in Court between December, 1993 and October of 1995. Mr. Tritt made eighteen appearances between March of 1994 and October of 1995.
¶ 133 To the successful conclusion of this prosecution would almost surely result in a request by the Crown that the Hutchenses not be permitted to continue to operate Gold Star and that Mr. Tritt not be permitted to offer Financial Services for specified time periods.
¶ 134 As much as this court might be willing to entertain such a request from the Crown, after a successful prosecution of these accused, the presumption of innocence requires that any restriction on their "liberty interests" pending the outcome of their trial be limited to what is demonstrably necessary to protect the public.
¶ 135 Mr. Hutchens, for the first nine months of this proceeding, was required to report weekly to the Reporting Centre, despite to the fact his office was in Toronto at 10 St. Mary Street, Suite 601, and his work kept him in and around to the courts on most work days.
Animus towards Sandy Hutchens
¶ 136 Evidence of Constable Thomson's inordinate interest in Mr. Hutchens includes his attendance at the bail hearing with respect to Count 17, on the 5th of May, 1994, at which time he got into a heated argument with the Crown, Mr. Leshner, who was not prepared to seek incarceration or restrictive bail conditions on that charge. (Transcripts, 23 October, 1995, p. 128, 14 May, 1996, pp. 81-94) Constable McKinney's observation was that Thomson "took things a little more personally" than he did when it came to this case, and dealing with Mr. Hutchens. (Transcript, 13 September, 1996, p. 80)
Intimidation of Tanya Hutchens
¶ 137 In her testimony on the 23rd of October, 1995, Tanya Hutchens stated that on her arrest by Detective Reynolds for fraud on the 16th of November, 1993, at the station, she was told by Reynolds that she was being charged only to get at Mr. Hutchens. At the station, she was first strip searched by a female officer and after the female officer left, Detective Reynolds entered the room and informed her that "part of the police procedure after a search is that they do an internal."
¶ 138 Nowhere in Reynolds' notes of the arrest is there any indication these conversations, or of a strip search or the possibility of an internal. When questioned on this before me on the 24th of October, 1995, he believed that she had been physically searched by a female officer, but denied ever suggesting that Mr. Hutchens' arrest was intended to put pressure on her husband, or discussing the manner of the search with Mrs. Hutchens.
¶ 139 On the 24th of October, 1995, at pages 61 to 67, Reynolds admitted to Mr. Carter that he had a thirty year personal history of lying in his dealings with "criminals" and that he had been disciplined for his behaviour of this kind in respect to the case of Neil Proverbs.
¶ 140 In assessing whether to believe Mrs. Hutchens or Detective Reynolds, on the evidence of personal prejudice, I have concluded that Reynolds is not a reliable witness, and I accept Mrs. Hutchens' version of what happened at the station. I find as a fact that she was strip searched at 52 Division by a female officer and that Constable Reynolds threatened her with an internal examination. I accept counsel's submission that it was entirely inappropriate to conduct a strip search of his client at 52 Division as an incident of her arrest, and in the context of this application the conduct of Reynolds is a strong evidence of personal prejudice suffered by Tanya Hutchens.
THE ULTIMATE REMEDY OF A STAY
¶ 141 Mr. Innes quite rightly points out that the Section 7 and 11(b) remedy of a stay is a remedy of last resort and should not be granted except in the rarest of circumstances. This proposition has been discussed at length in the case law, and in the Supreme Court of Canada most recently in R. v. Khela (1995), 102 C.C.C. (3d) 1, R. v. O'Connor (1995), 103 C.C.C. (3d) 1, R. v. Carosella (1997), 112 C.C.C. (3d) 288, and R. v. La (1997), 116 C.C.C. (3d) 97. See also R. v. Jack (1992), 70 C.C.C. (3d) 67 (Man. C.A.) and R. v. Khela (1998), 126 C.C.C. (3d) 341 (Que. C.A.)
SECTION 11(b) CASES:
¶ 142 In R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A.) the accused was originally arrested in November of 1989 and charged with four fraud related offences. He was arrested again in October of 1990 and charged with some 500 additional fraud related charges. During the course of those proceedings, charges of perjury and other offences were laid against the accused, which resulted in him being detained in custody. In the course of the trial, about four years after the accused's initial arrest, the accused brought a motion seeking a stay of proceedings on the basis that his right to trial within a reasonable time had been infringed. The proceedings were stayed for an 11(b) breach, due to delay, and specifically, a six month adjournment obtained by the Crown after the commencement of the trial. On appeal, the stay was set aside and a new trial ordered. Doherty, J. speaking for the court, concluded that the complexity of the trial matters plus the accused change of counsel on the eve of trial, which resulted in no admissions and a substantial addition of matters for the Crown to prove necessitated the adjournment to find more available court time. He suggested that a documentary evidence case such as Allen suffers least from a long adjournment because the trial judge can refresh his memory by re-examining the documents and obtain transcripts of the earlier proceedings. The adjournment had no effect on the accused status and did not prolong his custody.
SECTION 7 CASES:
¶ 143 In R. v. Carosella (1997), 112 C.C.C. (3d) 289 the Supreme Court of Canada upheld the stay granted by the trial judge where the social worker's notes were the first detailed account of the alleged incidents. In his reasons, Sopinka, J. also cited the absence of any alternative remedy to cure the prejudice to the accused, and the irreparable prejudice to the integrity of the judicial system if the prosecution were continued.
¶ 144 In R. v. La (1997), 116 C.C.C. (3d) 97, another sexual assault case, the tape of the initial police interview with the complainant, which was for other purposes, a secure treatment hearing, was lost and few notes were taken. In the criminal investigation of the assault, the original written statement of the complainant, and a further interview with the complainant that was both taped and transcribed, was available to the defence. The officer's explanation of the loss of the initial tape and the paucity of notes was that on or around the day of the first interview he was involved in a high speed chase and he was under investigation and it was "quite a stressful time." The Supreme Court of Canada upheld the Alberta Court of Appeal's decision to set aside the stay entered by the trial judge based on the Crown's failure to disclose the tape recording of the first complainant. Sopinka, J. speaking for the majority, points to a number of key factors that suggest a stay was not justified, at page 110:
"There is no suggestion that Const. Hollinger was negligent in his handling of the tape recording of the interview with M.F. The conversation wan not tape-recorded for the purposes of a criminal investigation, but for the secure treatment application. He did not consider it to be a detailed conversation. Const. Hollinger made the tape before the investigation of the activities of the accused began and did not turn it over to the police officer who investigated the charge in issue. Nor was he involved in the investigation. It appears from the record that Const. Hollinger listened to the tape in preparation for his testimony at the secure treatment application hearing. It follows that he took care to preserve the tape, at least until the hearing. The manner of the tape's subsequent disappearance remains unknown: Const. Hollinger explained that he did not know what had happened to the tape, but that he had searched for it and had been unable to fid it. He also testified that he was involved in a fairly stressful traumatic accident shortly after making the tape, namely, his shooting at a car and the investigation that followed. These factors lead me to the conclusion that Const. Hollinger did not fail to take reasonable steps in the circumstances to preserve the tape."

¶ 145 In R. v. Khela (1998), 126 C.C.C. (3d) 341, discussed above, the Quebec Court of Appeal quotes with approval the reasons of the trial judge, Martin J., in entering a stay [reported 39, C.R.R. (2d) 68 at pp. 95-6], at page 344:
"Is it possible in any event to say that the petitioners have suffered no prejudice? I think not. In the first place they were obliged as a result of non-disclosure to face trial some ten years ago on the Crown's territory. Evidence relating to a crucial part of the Crown's case namely the payment of $8,000. Was, unbeknownst to the trial judge, to counsel for the defence and quite possibly to counsel for the Crown seriously incomplete. Counsel for the defence was not permitted to have access to all the details of the police investigation and in particular to the material that surfaced in June of 1996. This material would surely have been of crucial assistance to the defence both in answering the Crown's case and with regard to the question of entrapment.
As a result of the Crown's failure to make available the statement of Billy Joe the petitioners were denied the opportunity of availing themselves of it before Steinberg J. and before both appellate courts. In addition the Crown's failure to communicate to the petitioners the substance of the contents of the police investigative files deprived them of the opportunity of arguing the importance of the material before the Court of Appeal and the Supreme Court of Canada." (Italics added.)

SECTION 24: IS A STAY THE ONLY APPROPRIATE REMEDY ON ALL THE FACTS IN THIS CASE?
¶ 146 The starting point for an inquiry as to the appropriate remedy for Charter breaches is Section 24 of the Charter. Section 24 states:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

¶ 147 In R. v. Flintoff (1998), 126 C.C.C. (3d) 321, the Ontario Court of Appeal discussed how this Section 24 analysis should be done. This is a recent case in which an accused was charged with impaired driving and "over 80". Upon forming the opinion that the accused's ability to operate a motor vehicle was impaired, the officer arrested the accused at the scene, made the breathalyser demand and advised him of his right to counsel. The accused indicated he wished to have counsel. After a brief pat down search at the roadside, the accused was placed in the back of the police cruiser and transported to the station for the purpose of securing breath samples. The accused was polite and co-operative throughout. The arresting officer observed nothing about the accused that aroused any suspicion that the accused had weapons concealed on his person. Pursuant to a general police policy requiring every police officer to strip search every person who was brought to the police station in custody, regardless of the circumstances of the case or the individual, the accused was strip searched before the breath tests were conducted. The trial judge found the strip search violated the accused's rights under s. 8 of the Charter to be secure against unreasonable search. The trial judge excluded the evidence of the breathalyser and dismissed the "over 80" charge. That verdict was set aside by the Summary Conviction Appeal court. On further appeal to the Court of Appeal, the appeal was allowed and the acquittal restored.
¶ 148 Finlayson, J. speaking for the court, discusses the Section 24 analysis, at p. 334, para. 28:
"The usual remedy for an unreasonable search in violation of s. 8 of the Charter is to exclude under 24(2) the evidence that is the product of the unconstitutional search. Furthermore, usually it is self-evident that the "evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter." The contentious issue under a s. 24(2) inquiry usually is whether "having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." In this case, however, it is less than clear that the breathalyser results were a product of the unconstitutional strip-search."

¶ 149 Mr. Justice Finlayson then turns to Sopinka, J.'s reasoning in R. v. Goldhart (1996), 107 C.C.C. (3d) 481 at 492-495 and concludes on this point, at p. 336, para. 30:
"It is my opinion that this case is of the nature of one that Sopinka J. contemplated in Goldhart, supra, where the temporal connection is so strong that the Charter breach should be seen as "an integral part of a single transaction." Even with the absence of a causal connection, a court faced with a flagrant and intrusive violation of s. 8 of the Charter must give, as Le Dain J. stated in R. v. Therens (1985), 18 C.C.C. (3d) 481 (S.C.C.), "adequate recognition to the intrinsic harm that is caused by a violation of a Charter right or freedom, apart from its bearing on the obtaining of evidence."

¶ 150 Later in his judgment, at page 340, para. 40, Mr. Justice Finlayson goes on to consider the defence request that the impaired driving charge be stayed, as well:
"Since it is conceded that the breathalyser test results are the only evidence to support the the charge under s. 253(b) of the Code, that charge cannot be sustained. However, I would not stay the charge of driving while impaired under s. 253(a) of the Code. The conduct of the investigating officer at the scene of the accident cannot be criticized. The evidence to support that charge is entirely severable from what took place at the police station."

¶ 151 At para. 41, he goes on to further discuss his reasons for not entering a stay:
"L'Heureux-Dube J. for the majority of the Supreme Court of Canada in R. v. O'Connor (1995), 103 C.C.C. (3d) 1, in reference to R. v. Young (1984), 13 C.C.C. (3d) 1, a decision of this court, stated that [at p. 43]:

It must always be remembered that a stay of 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.

I do not think that this is the clearest of cases, particularly when a proper result can be obtained by a more surgical use of s. 24(2) of the Charter. The two charges arise out of a motor vehicle accident, the seriousness of which is not apparent on this record. There is no reason why the offence for which there can be no due process complaint should not proceed on other evidence available to the Crown."

¶ 152 Mr. Innes submits that the disclosure in this case was essentially complete, and matter could have proceeded to Preliminary Inquiry, on the 5th of December, 1994, except for the fact that the defence "chose to stand on ceremony" by asking for a further Judicial Pre-Trial and seeking further disclosure. He suggests that the failure by the police to take notes of the initial investigation in roughly October and November of 1993 is cured by the disclosure provided. He asks me to conclude that since all the immigration files were eventually disclosed there is no ultimate prejudice to the defence so as to give rise to the remedy of a stay. With respect, I must disagree.
¶ 153 The disclosure requests, as documented in the proceeding, began with a concern over the initial stages of the police investigation, and the availability of a contemporaneous record of the interviewing of witnesses and the obtaining of documents.
¶ 154 In this application I have learned that the police did not initially record their interview with the principle complainants and witnesses, and did not keep track of the initial manner and time of the reception of documents. One of those initially interviewed, without any notes taken, Mr. Bowler, is now dead. I have learned that Thomson and Reynolds obtained bank records and other material without disclosing to the defence how it was obtained.
¶ 155 When confronted with these irregularities in the Pre-Trial process, the police stalled, or dissembled, or simply refused to follow up until the defence threatened to commence this application. Reynolds is now retired and doesn't know where his notes are.
¶ 156 In the disclosure cases, such as Khela, above, the Courts carefully review the use the missing evidence might have been put, if made available to the defence. In the case at bar, this review is compromised by the fact that investigative steps were not carried out properly, and contemporaneous notes not taken. However, my review of the evidence in this application permits me to conclude that to the 175 Cosburn Rent Roll - Count 4 and to the Canada Trust and Toronto Dominion Bank documents - Count 12 were key documents in to the Crown's case on these two counts, and the origin of them were not disclosed until Officer Thomson was cross-examined in this application. In addition, the lack of the initial investigative notes with respect to complainants Melnic - Count 1, Tomescu - Count 2, Veres - Count 6, and to the witness Barnes - Counts 3 & 4 results in the defence having no will-says and no idea as to how they were interviewed, if at all. (See Crown Binder, Exhibit 19, Tabs 17, 22 & 27.)
¶ 157 The Crown insisted on trying Mr. Tritt with the Hutchenses, even though he was initially charged on a separate information, and could have been proceeded with separately.
¶ 158 The above, in my view, resulted in serious legal prejudice to all three accused.
¶ 159 With respect to personal prejudice, I have concluded that both Constables Thomson and Reynolds went out of their way to interfere with the Hutchenses' legitimate liberty interests.
¶ 160 Mr. Hutchens was on restrictive bail conditions, required to report on a weekly basis for the first nine months of this proceeding, despite the fact that his Toronto office was nearby and he worked at the courts on a regular basis.
¶ 161 Mrs. Hutchens, on her arrest on the 16th of November, 1993, was strip searched and threatened with an internal search. This, on its own, is unreasonable in the context of a fraud case where she has been brought to the station by the police from her office, and a flagrant violation of her Section 8 Charter right.
¶ 162 This was not, in fact, a complex case. The charges involve allegations of only seven discreet fraudulent transactions, and two alleged threatenings. The Crown did not allege sophisticated frauds. These charges have virtually none of the complications of the fraud allegations in R. v. Hawkins and Morin, R. v. Johnson or R. v. Allen.
¶ 163 In Flintoff, supra, at page 340, Finlayson J. concludes that a stay is not required to cure the Charter breach. He chooses, instead "a more surgical use of 24(2)" and decides that "There is no reason why the offence for which there can be no due process complaint should not proceed on the evidence available for the Crown." In this case, due to the Crown failure to keep proper records, the defence is seriously prejudiced in making certain arguments with respect to the exclusion of documentary evidence under s. 24(2). In addition, due to the Crown's failure to make timely disclosure and bring the matter on for trial, a witness with respect to at least Count 4, and potentially more counts, Mr. Bowler, is not longer available to testify.
¶ 164 It is the double impact of Section 7 failure to take and disclose contemporaneous notes and 11(b) unreasonable delay that sets this case apart from the others. This was not a complex case. The defence has established that the 21 months it took the Crown to bring the Hutchenses to trial and the 16 1/2 months it took to bring Mr. Tritt to trial was an unreasonable delay under all the circumstances. If I were to make an order for further disclosure the provision of full and complete disclosure could not now be made.
¶ 165 As a result of the unreasonable delay, the lack of disclosure, and late disclosure, have the accused been denied their Section 7 right to make full answer and defence? In La, the witness statements and records were still available, although the initial recorded statement for the secure treatment hearing had been lost. In the case at bar, the defence has never received the record of the complainant interviews in Counts 1, 2, and 6. There is no will-say from the Immigration Officer Decaire with regard to these counts. In Counts 3 & 4, the will-say of a principal Crown witness, Carmen Volpe, is undated, does not disclose where it was taken, by whom, or who was present. Thomson states in testimony before me that he interviewed her, although there is no record of this in his notes. There are no notes with respect to the interview of the complainant, Mr. Greenberg, in Count 17. In Allen, although the delay was longer than in this case, the documentary evidence was intact, and the inherent complexity of the case justified proceeding despite the long delay. In the case at bar, there is not that kind of complexity. In the case at bar, in Count 4, the delay has resulted in the unavailability of an important witness who has died. In Hawkins, there was little complaint about delay, and there was no prejudice to the liberty interests of the accused. In the case at bar, there has been clear prejudice to the liberty interests of all three accused. In Flintoff, it was possible for the court to "surgically" separate the breach of the accused's Section 8 search rights with respect to the breathalyser readings from the impaired charge, where there was no due process complaint. Here the due process complaint extends to the entire conduct of the Crown investigation and disclosure process, leading up to this application.
¶ 166 For these reasons, I find that each of the three accused have been denied their Section 7 and 11(b) rights to a degree that cannot be cured by a lesser remedy than a stay.
¶ 167 I have concluded that the only appropriate remedy, under all the circumstances, is a stay.
DISPOSITION:
¶ 168 The Crown having previously withdrawn Counts 1 and 7, the application for a stay with respect to Counts 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 is granted.
REINHARDT PROV. J.
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Moishe Alexander Fraud Scheme

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