Crown:  Eric Costaris, Office of the Crown Attorney, Sarnia
Defence:  Craig Penney, Computer Crime and Child Pornography Lawyer, Toronto

¶ 1  TIMING:  The Motion is not within compliance with the time requirements governing pre-trial motions in the Ontario Court of Justice; it was returnable less than one week prior to the scheduled commencement of the trial.

¶ 2  However, the circumstances that gave rise to the Motion were unusual and not reasonably available to the Defence until an interview of a Crown witness (that required Crown consent) was completed in January of 2013, further to disclosure provided in October of 2012. The Motion was brought in a diligent manner thereafter.

¶ 3  Notwithstanding the delay in bringing the Motion, this Court will determine the Motion on the merits on an abbreviated timeline because:

1.  The Defence was reasonably diligent in bringing the Motion notwithstanding the late timing;

2.  Trial efficiency is likely impacted, as witnesses may not be required depending upon the result herein;

3.  The evidence in relation to the Charter Application and trial proper are being presented in a blended fashion;

4.  The Court can ensure that the short timeline is taken into account in the result to ensure the disclosure burden is not unreasonable in the circumstances.

¶ 4  REASONS:  The proposed disclosure is relevant to an issue raised by the Defence in the Charter Application. That issue may be framed or summarized as follows:

¶ 5  If the Court finds a Charter breach in the failure of the Sarnia Police Services to obtain an Assistance Order and/or an amendment to the Detention Order in connection with Mr. Muster's involvement in the matter, the proposed disclosure would provide evidence of the context of the breach as part of a pattern of practice of the Sarnia Police Services to operate without such Orders being obtained, relevant to the S.24(2) analysis to be undertaken by the Court.

¶ 6  Without comment upon the merits of the position taken by the Defence, as it would be premature for the Court to do so (which was in part argued by the Crown in opposition to the disclosure requested, namely that the Defence position was without merit) and recognizing the trial is proceeding as a blended rather than biforcated proceeding to optimize trial efficiency and time management, the Court is of the view that it would be reasonably relevant to require disclosure only of 2010 and 2011 investigations requested by the Defence. Given the time constraints and the remoteness of earlier investigations undertaken, the issue of a pattern or practice is best addressed through reference to the practices of the Sarnia Police Services in the two years immediately preceding this investigation. The Order will be made on an interim basis, with a deadline of March 20th, 2013 for the provision of this disclosure, a date after the commencement of the trial and before its completion, approximately one month hence.

¶ 7  The Order is made on an interim basis to permit flexibility if there are concerns regarding the implementation of the Order from either Defence or Crown perspective.

¶ 8  ORDER:  On an interim basis, it is ordered that disclosure be made on or before March 20th, 2013, of the following:

¶ 9  A copy of the Search Warrant, if any, the s. 487.02 Assistance Order, if any, and the s. 490(1) Detention Order, if any, or sufficient identifying information concerning the following matters to enable the Defence to conduct a search at the Sarnia Court to obtain such documentation in relation to the following matters, which comprise the last four matters requested in the correspondence at Tab B of the Motion Record.

Crown:  Eric Costaris, Office of the Crown Attorney, Sarnia
Defence:  Craig Penney, Computer Crime and Child Pornography Lawyer, Toronto

¶ 1  THE COURT:  Well the first comment I want to make is that I think the position taken by the Crown today is a reflection of responsible decision-making at a time when it has become apparent through the unfolding of evidence in the blended trial and Charter proceeding, that was not apparent to the Crown at the commencement of the trial, but certainly crystallized and became very apparent to all of us as the trial progressed.  So I offer no criticism for the position taken by the Crown here today and in fact I do accept that that is very responsible on his part.  Really what is asked of me at this point is as to whether or not I will permit the Crown to simply withdraw the charge in the face of objection of defence counsel, rather than conclude the case in an alternative format so that really at the end of the day, the issue isn't whether this case is finished, the issue is the manner in which that is going to be done.  Defence counsel has objected to the simple withdrawal of the charge — because evidence has been presented to the point of concluding the Crown's case.  In my view, that is something that I think should be taken into account to consider

¶ 2  MR PENNEY:  The objection of defence counsel here is, as I have pointed out to reflect certain consideration to the Crown really no difference in the manner in which this matter is to be concluded. So I will not at this point grant leave to the Crown to withdraw, but will invite I guess the conclusion of the case on the merits simply because we are now this far along and at this stage.  I think that is unusual, but pretty much everything about this case in my view has been unusual.  The issues that have resulted in I think a radical change in the Crown's position have related to a Charter application, upon which the evidence has unfolded.  So simply reacting to what I've heard today without really considering it to any greater degree I think in the unusual circumstances of this case I will not simply permit withdrawal of the case, although I respect the Crown's position taken as an extremely responsible one, but because of the fact that we've had a number of days of evidence and the Crown has closed its case at this stage, I will permit the matter to be dealt with procedurally to its conclusion, in that alternative way.

¶ 3  CROWN:  Thank you.  I think at this point it would be prudent that Mr. Penney indicate whether or not he'll be calling any evidence and at that point I think my position is made clear in terms of...

¶ 4  THE COURT:  It is. 

¶ 5  MR. PENNEY:  No, there's no evidence.

¶ 6  THE COURT:  Mr. Penney.

¶ 7  MR PENNEY:  The Crown's case is closed and I'm not calling any evidence.  It's a joint submission for the charges to be dismissed please.

¶ 8  THE COURT:  Yes.  I think this trial has been a learning experience frankly.  In the course of hearing the evidence in this case I think it's clear to me that the Sarnia Police Services has learned a great deal.  I understand that in dealing with a case of this nature which is an internet-based child pornography investigation, the Sarnia Police Services contracted out services from an outside or non-police forensic technologist and did so in a manner that, although good faith can be noted on the part of police, certainly the manner in which the files were delivered and handled by a forensic technologist has been so problematic and so serious, so as not to be evidence that a Court can have confidence in.  As I said, I think Sarnia Police Services has learned a lesson from this and on the basis of the evidence that has been heard in this case, the Crown has taken a responsible position to discontinue the prosecution.  So the charges against Mr. M. then will be marked dismissed.

¶ 9  MR PENNEY:  Thank you, Your Honour.