Summary

Keywords

Criminal law — Evidence — Disclosure — Whether Crown in possession or control of certain evidence that is not in the physical possession of the police — Abuse of process — When Crown may invite a stay of proceedings and appeal following adverse interlocutory ruling.

Summary

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(Publication ban in case)

At various times during multiple criminal investigations, police obtained text messages,

screenshots, and recordings from the cell phones of six witnesses (the “Phones”). This evidence tended to incriminate the applicant. Some of the witnesses voluntarily turned their phones over to police for extraction, others voluntarily extracted data from their phones on their own and provided that data to police. At the time of trial, police did not have physical possession of any of the Phones, and at least one of the Phones had been replaced by its owner. The applicant applied to have the Phones turned over to him as first-party disclosure.

The application judge held that the witnesses’ voluntary participation in the investigation meant that the Crown retained possession and control of the Phones, and therefore ordered the Crown to turn them over to the applicant as first-party disclosure. The Crown informed the application judge that it could not comply with the order and invited a stay of proceedings.

The Court of Appeal reversed the application judge’s finding that the Crown was in possession and control of the Phones. There was therefore no lawful way for the Crown to comply with the application judge’s order and it had no reasonable alternative but to invite a stay of proceedings and appeal.

Lower Court Rulings