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Canadian Charter-Criminal - Criminal law - Pre-trial procedure - Whether the majority of the Court of Appeal erred in holding that the trial judge erred in the remedy chosen under s. 24(1) of the Canadian Charter of Rights and Freedoms - Whether the majority of the Court of Appeal erred in allowing the Crown’s appeal.

On December 23, 2003, the Appellant Bjelland was arrested and charged with importing cocaine and possession for the purposes of trafficking contrary to sections 5(2) and 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. His counsel sought disclosure from the Crown. The charges were laid after a trailer being towed behind his truck (which he was driving in the company of a passenger) was found by customs authorities at the United States-Canada border to have two large metal drawers hidden beneath its bumper. One drawer contained 17 vacuum-sealed packages of cocaine weighing approximately 22 kilograms and worth between $828,000 and $1.7 million.

Various pre-preliminary hearing conferences occurred and the Crown intimated that disclosure was complete or substantially complete. On February 28, 2005, the Appellant pleaded not guilty to both counts and elected trial by judge and jury. Pre-trial conferences were held in November 2005 and February 2006. On March 21, 2006, the Crown advised defence counsel that more disclosure was forthcoming concerning an accomplice. On March 24, 2006, the Appellant re-elected for trial by judge alone. On March 29, 2006, the Crown disclosed to defence counsel the transcript from a video-taped KGB statement taken on December 16, 2004 from one Friedman and indicated that it intended to call him as a witness. On April 6, 2006, the Appellant sought specific disclosure about Friedman. Other material was disclosed throughout April including a statement of one Holland that implicated the Appellant in cocaine smuggling.

On April 18, 2006, the Appellant’s counsel moved for a stay of proceedings. In the alternative, his notice of motion sought an order excluding the evidence of Friedman or an order for disclosure and for costs of the motion. The notice of motion suggested that, absent an explanation, the Crown’s failure to disclose material in its possession for a considerable period of time amounted to “real misconduct” and claimed that the Appellant’s ability to make full answer and defence had been adversely and irredeemably affected. The motion was heard on April 24 and 25, 2006. The trial judge characterized the Crown’s actions as misfeasance rather than malfeasance. He concluded that the proper remedy was to put the parties in the same position they were in before the late disclosure and excluded the evidence of Friedman and Holland. The Appellant was acquitted. On appeal, the majority of the Court of Appeal allowed the appeal and ordered a new trial. Brooker J. dissenting held that having regard to the broad discretion granted to the trial judge to fashion the appropriate remedy, he was unable to conclude that the trial judge misdirected himself or that his decision was so clearly wrong so as to amount to an injustice and would have dismissed the appeal.