New & Notable: How you Say it Can be as Important as What you Say

Janet Smith has asthma and suffers from anxiety and panic attacks.  This conditions can be exacerbated during times of stress.  When she testified about this during her trial for failing to provide a breath sample the trial judge believed her.  The trial judge did not believe, however, that these conditions were a reasonable excuse for her failure to provide a breath sample.  Smith was convicted of failure and appealed.  MacDonnell J heard the summary conviction appeal: R v Smith, 2011 ONSC 5377.

Smith was involved in a motor vehicle accident which was investigated by the police. During the investigation the police formed grounds to believe she was impaired and arrested her. She was transported to the police station where she began to exhibit signs of distress and insisted she was have trouble breathing. She was transported to a hospital.

A breath technician then attended the hospital along with an approved instrument. Despite 11 attempts, Smith failed to provide a suitable sample. She was charged with failure.

At trial Smith testified that the medical conditions she suffered from made it impossible for her to provide the sample as she did the best she could. The trial judge, although accepting her conditions existed, held that she “intentional [failed] and that she exaggerated her symptoms at the relevant time in order to avoid providing a sample” [para 4].

At trial the trial judge had the opportunity to view a DVD of Smith recorded on the day of the incident at the police station. The trial judge further had the opportunity to observe Smith as she testified in her own defence. In convicting Smith the trial judge concluded that her “in-court observations and the events shown on the DVD greatly contribute to my findings that [Smith] exaggerated her symptoms in order to avoid providing a sample” [para 4].

On appeal Smith argued (i) that the trial judge erred by giving undue weight to the observations of Smith on the DVD and in-court; (ii) that it was also an error to do so without giving Smith notice or the opportunity to explain her behaviour; and (iii) that in the absence of medical or other expert evidence the trial judge’s observations had no probative value [para 5].

MacDonnell J considered each of the issues. 

 

First, MacDonnell J noted that it is not improper for a trial judge to consider demeanour on the issue of credibility - citing inter alia: R v Jabarianha, 2001 SCC 75 at paras 30-31; R v Devine, 2008 SCC 36 at para 28 [para 9].  In the present case the trial judge did not err or place undue weight on DVD or Smith’s in-court behaviour, it was merely “one factor among many that was of assistance in assessing the credibility of the appellant’s assertion that medical difficulties prevented her from complying with the breath demand” [para 6].

Second, MacDonnell J found that the trial judge was not required to give Smith notice or an opportunity to explain her behaviour [paras 11-15]: “[a] judge might well choose to bring the accused’s in court behaviour to his or her attention before acting on it, a judge is not required to do so” [para 12].

Third, with respect to the need for medical evidence, MacDonnell J rejected the submission:

The trial judge was not purporting to diagnose the appellant's condition. She was simply noting that both on the DVD and in the course of the trial the appellant had demonstrated that she was capable of turning on or off, at will, the symptoms that, she asserted, had interfered with her ability to comply with the breath demand. The judge did not have to hear medical testimony in order to make that observation or to assess its significance. [Emphasis added]; [para 16].

DG Mack

Current & Curious: Speaking out of Both Sides of Your Mouth

In the recent case of R v Farrah, 2011 MBCA 49 the Manitoba Court of Appeal considered an curious situation.  David Farrah was charged with robbery and other related offences.  On January 31, 2007 two patrons had entered a bank to use the ATM when they were confronted by a male armed with a sawed-off shotgun.  The patrons were able to flee although the male shot at them as they drove away. 

 

Police were called and a K9 track commenced.  The K9 track eventually led to an apartment building.  Inside the K9 tracked to suite 16, paused, then moved on to suite 12 and indicated an entry.  Ultimately the police entered and searched both suites 12 and 16.  In suite 12 Farrah was found hiding.  In suite 16 a shotgun with one discharged shell was found.

 

At trial Farrah sought to exclude the evidence of the gun based on a violation of his section 8 Charter rights.  In doing so he asserted (as he needed to in support of his motion) a reasonable expectation of privacy in that suite - something he did by questioning the police about utterances he made at the scene to that effect.  The motion was dismissed.

 

At trial Farrah testified.  In doing so, he disavowed any interest in suite 16 indicating he no longer lived there and had no access thereto.  Farrah was convicted and appealed.

On appeal the Court of Appeal considered this curious approach taken by Farrah.  The court noted that at trial neither counsel or the judge commented on this "evidentiary discrepancy".  The court continued:

Nevertheless, this contradiction is troublesome.  The concern and unease are clear: an accused should not be able to successfully argue a position at a voir dire based upon evidence of, or from him, and then entirely disavow or attempt to disavow that position at trial based upon a change in his evidence [para 20]. 

The court further noted that this fluctuating position puts the judge in a "difficult, if not impossible, position" and raises "ethical questions" [para 21].   

 

The court then considered what the trial judge could have done in such a situation.  First, the court noted that the trial judge was not functus officio and could have revisited the Charter motion [paras 22-23].  Second, the trial judge could take it into account in assessing the credibility of the accused [para 25].

 

Either way, this curious approach is one that should not be permitted.  As the Court of Appeal noted the maxim quod approbo non reprobo [see definition at para 20 or at The Free Dictionary] comes to mind [para 20].

 

  

DG Mack

Comment: Credibility Assessment, an Enigmatic but Deferential Process

Trial judges are often deferred to on various rulings and findings including credibility findings. This trite statement of the law is logical and easy to accept. Trial judges watch witnesses testify, they see their demeanour, observe their body language and observe them reacting and answering questions under the friendly atmosphere of examination in chief and under the less friendly atmosphere of cross-examination.

In the recent decision of R v BA, 2011 ONCA 603, that deference does not appear to have been offered.

The appellant was convicted after trial having taken the stand in his own defence. In convicting the appellant the trial judge, De Filippis J, listed four reasons why he rejected the accused’s evidence. One of those reasons was the fact that the appellant was not “totally forthright about the extent of his criminal record” [para 1]. In fact the trial judge found that “the appellant deliberately failed to disclose his complete record” [para 1].

Defence counsel put the appellant's record to him in chief. The record presented, however, did not include the appellant's three most recent convictions. Defence counsel asked the appellant whether the record “accurately reflects your criminal record” to which the appellant replied “yes it does” [para 2].

During cross-examination the appellant volunteered that he was waiting for his license suspension to end; this prompted the Crown to ask whether the suspension was as a result of a criminal conviction and the appellant replied that he had recently been convicted of impaired driving. The appellant later testified under cross-examination that he had also been found guilty of two breaches of recognizance.

On appeal the appellant argued that the trial judge erred in relying on this part of his evidence as a basis to reject his evidence.  The Court Appeal found that in “neither of these instances was the appellant being evasive or deliberately trying to hide his record” [para 3] and that "the trial judge was not justified in using it to make an adverse credibility finding” [para 4].

In allowing the appeal on that ground alone the Court of Appeal held that the "error in finding that the appellant’s initial mistake and acknowledgement of his record was not 'innocent' irretrievably tainted his credibility finding" [para 4].

With respect, this conclusion appears to have failed to pay appropriate deference to De Filippis J in the circumstances.

First, even if the appellant "offered" the additions to his criminal record during cross-examination it could be open to the trial judge, based on the way in which he offered them and the manner in which it unfolded to find that it was not as forthcoming as it appeared on the transcripts. 

Second, the accused having looked at the record produced answered that it the document “accurately reflects [his] criminal record.” Nothing in the evidence reveals that the accused did not understand the question. Thus, having observed the accused testify, the trial judge’s finding that the accused was not forthcoming and in fact was being deceitful should be owed far greater deference. This is especially so where this was but one of four reasons that the trial judge rejected the accused’s evidence.

Third, as held by Charron J in R v Dinardo, 2008 SCC 24 at para 26 it will be rare for an appeal court to intervene in these circumstances:

Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal [emphasis added].

While the Court of Appeal may have fairly disagreed about the impact of this aspect of the appellant's evidence, with respect, the deference owed to the trial judge was not properly considered.

 

DG Mack

New & Notable: Apparently, What you Want and What you Need is not always the Same

Antonio Jones was a drug dealer. Scott Larriviere was a client and owed Jones some money. On 18 September 2004 the two met. Larriviere was to pay Jones the money owed and then drive him to some other customers in exchange for some more drugs.

Things did not go as planned. While sitting in Larriviere's truck Jones struck Larriviere in the head with a metal bar. Larriviere suffered irreversible brain damage and ultimately died after spending a year in hospital.

Jones was charged with second-degree murder. He was convicted of manslaughter after a jury trial. He appealed. The appeal was dismissed: R v Jones, 2011 ONCA 584.

On appeal the apppellant raised two grounds of appeal. First, the appellant alleged that the trial judge erred by failing to correct a misstatement by the Crown (which was then amplified by the trial judge) about when or where two photographs of the truck were taken - the photographs were relevant to a claim of self-defence which was obviously rejected. Second, the appellant alleged the trial judge erred by not insisting the jury hear the answer to their question about when the photos were taken - the jury returned their verdict without hearing the answer.

 

With resepct to the first ground of appeal, Laskin JA, for the court, first considered if in fact there was a misstatement. After reviewing the comments of the Crown and judge, Laskin JA accepted that the comments of the Crown could have been misleading and that this might have been reinforced by the trial judge [paras 26-37]. Despite this, Laskin JA held that the initial misstatement, "at its highest" was "quite modest" [para 40]. In doing so Laskin JA noted that a trial judge is not required to correct every misstatement of fact by counsel. Moreover, he pointed out that no objection was made by counsel at the time and the trial judge instructed the jury that it is their collective memories which form the basis of their deliberations not counsel's submissions. Finally, Laskin JA noted that the jury apparently appreciated this misstatement as they asked for clarification.

With respect to the second ground or appeal, Laskin JA noted the jury question as follows: "Could you please confirm that exhibits/photographs 10(a) and 24 were taken at the crime scene?" [para 47]. The photographs in question include a photograph which showed an open ashtray with ashes in it (no ashes were strewn about the interior - offering evidence to rebut the self-defence claim) and the other photograph was a picture that showed a pair of scissors sitting precariously on the dash.

Prior to providing an answer (which would have been "I cannot confirm that the photographs were taken at teh crime scene) the jury returned with a verdict. Before accepting the verdict (something both counsel agreed could be done) the trial judge offered the following to the jury:

Okay. Thank you. Have a seat. Thank you, members of the jury. We understand you have reached a verdict. By that e also understand that you no longer needed the answer to the question that you had sent us. We were prepared with an answer just as we were getting your note. If we are wrong in that assumption, you should advise us. If you want some time to think about that, you may step outside and think about it. If we are not wrong in that assumption that you no longer needed the answer to the question in order to reach your verdict, then the foreperson should give the verdict to the CSO. Okay. Poll the jury. Okay. The Registrar will poll you now [para 52].

Laskin JA dismissed this ground as well. In doing so, he held as follows:

Indeed, I find it hard to see what the trial judge did wrong. She gave counsel an opportunity to consider what to do. She proceeded in the manner she did with their agreement. She gave the jury an opportunity to have its question answered before delivering its verdict. And, although the jury did not explicitly advise the trial judge it no longer needed its question answered – as the jury in Sit did – it did so implicitly by giving its verdict [para 56].

Laskin JA went on to expressly agree with the Crown’s submission that “It would not have been appropriate for the trial judge to question why the jury no longer wanted its question answered or to require the jury members to hear an answer when they had indicated that it was not needed” [para 57].

 

DG Mack

New & Notable: Proctecting the Quasi-Judicial Function of the Crown

In a recent blog, Crown Discretion: Exercising, or is it excising, Crown Discretion, I commented on the issue of whether the Crown's discretionary decision to file notice of increased penalty was part of core prosecutorial discretion. In the recent decision of R v Nixon, 2011 SCC 34 the Supreme Court considered the issue of prosecutorial discretion; while it is considered in a different context, the Court's ruling may shed some light on the likelihood of R v Gill, 2011 ONSC 1145 being upheld or overruled if appealed.

Olga Nixon was charged with a number of offences including dangerous driving causing bodily harm and impaired driving causing bodily harm. It was alleged that Nixon “drove her motor home through an intersection without stopping and struck another vehicle, killing a husband and wife and injuring their young son” [para 2]. Nixon ultimately provided breath samples and registered 200mg of alcohol per 100ml of blood. A toxicologist testified that these results extrapolated to the time of the accident would have been between 225mg and 250mg of alcohol per 100ml of blood [para 2].

Nixon elected to be tried by judge and jury and the case proceeded to a preliminary inquiry. The Assistant Crown Attorney who had carriage of the file had concerns about the admissibility of the evidence and in “particular the breathalyzer results and the probative value of the eyewitness evidence that a motor home had been seen driving erratically some time before the accident” [para 7]. Based on this analysis of the Crown’s case the results of the breath samples were not adduced at the preliminary hearing and the presiding judge was informed that the Crown would only be seeking committal on the dangerous driving counts; committal on these counts was conceded by Nixon [para 7].

After the preliminary hearing Crown and defence agreed that Nixon would plead guilty to careless driving under the Traffic Safety Act; a joint sentence of an $1800 fine was agreed upon.  Prior to agreeing to this resolution, Crown counsel sought and was granted approval by his immediate supervisor to proceed with the plea to the TSA offence. In light of the seriousness of the allegations a report was prepared and forwarded to senior officials in the justice department. The report caused significant concern to the Acting Assistant Deputy Minister (ADM); an inquiry was commenced and an adjournment of the plea was obtained.  Defence counsel was not informed of the reason for the adjournment.

Ultimately the ADM concluded that the assigned Crown’s assessment was flawed and that the proposed resolution “was contrary to the interests of justice and would bring the administration of justice into disrepute” [para 10]. The assigned Crown was instructed to withdraw the proposed resolution agreement and proceed to trial on the dangerous driving charges in accordance with the outcome of the preliminary hearing.

As a result of this decision, Nixon brought an application under section 7 of the Charter alleging an abuse of process and requesting an order compelling the Crown to honour the proposed resolution. The application judge granted the application and ordered the Crown to proceed with the plea agreement.  Nixon pleaded guilty to careless driving.  The Crown successfully appealed; the acquittals were set aside and a new trial was ordered on the dangerous driving charges.  Nixon appealed to the Supreme Court. 

At the Supreme Court, Charron J, writing for a unanimous Court, first noted that there was agreement between all parties that the Crown's conduct and decision to enter into a plea agreement was part of the "core" discretion [para 29].  The issue, however, was whether the decision to repudiate that deal also fell within this discretion. 

Although it was not agreed by all, Charron J noted that the question of whether the decision to repudiate also fell within the "core" discretion was as easily resolved:

As aptly put by Paperny J.A., in determining whether any impugned decision falls within the core of prosecutorial discretion, it is useful to ask: “. . . is it a decision as to whether a prosecution should be brought, continued or ceased, and if so, what it should be for?” (para. 32). Applying this test, she held that the ADM’s decision to repudiate the plea agreement “fell squarely within the core elements of prosecutorial discretion” (para. 33). I agree. In my respectful view, it is difficult to see how the ADM’s decision could otherwise be characterized. The ADM effectively decided that the prosecution against Ms. Nixon should be continued and that it should be for the Criminal Code offences of dangerous driving, not for the traffic infraction of careless driving. Clearly, the ADM’s decision to repudiate the plea agreement also constitutes an act of prosecutorial discretion. Prosecutorial discretion was not spent with the decision to initiate the proceedings, nor did it terminate with the plea agreement. So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued and, if so, in respect of what charges [emphasis added] [para 30].

It followed, Charron J held, that the decision to repudiate the deal was only reviewable on a showing of abuse of process [para 31].

Turning to that issue, Charron J held that the Crown’s repudiation of the plea agreement did not amount to conduct that was so unfair or oppressive to the accused, or so tainted by bad faith or improper motive, that allowing the Crown to proceed on the Criminal Code charges would tarnish the integrity of the judicial system and thus constitute an abuse of process. 

...the ADM's decision to resile from the plea agreement falls within the scope of prosecutorial discretion. In the absence of any prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimate decision to repudiate, the decision to proceed with the prosecution is the Crown's alone to make. Reasonable counsel may indeed, and often do, differ on whether a particular disposition is in the public interest in the circumstances of the case. The ADM, in good faith, determined that Crown counsel's assessment of the strength of the evidence was erroneous and, on that basis, having regard to the seriousness of the offences, concluded that it would not be in the public interest to terminate the prosecution on the criminal charges. This can hardly be regarded as evidence of misconduct [para 68].

It is interesting to note in Nixon the decision by the Crown to repudiate its previous deal had the effect of continuing the proceedings.  At the stage that this decision was made, however, there had previously been decisions to commence proceedings, what charges to proceed with and to terminate proceedings by way of a plea agreement.  These previous decisions, Charron J held, did not change the nature of the ADM's decision - it was part of the "core" discretion. 

In the context of filing notice of increased penalty, the Crown has similarly made a decision to commence proceedings and a decision about what charges to proceed with.  However, these previous decisions and the entering of a conviction does not exhaust the Crown's "core" discretionary powers.  One discretionary option open to the Crown is to stay proceedings, even after conviction.  The decision, therefore, to file notice, is a decision about continuing the proceedings.  The fact that it impacts the accused and the court by narrowing the available sentencing options, should not - and does not in my view -change the nature of the decision. 

 

DG Mack

Quotable Quote: Why did he recant, well...

On June 22, 1633 Galileo offered his now infamous recantation declaring that he would there forward "abandon the false opinion that the sun is the centre of the world and immovable, and that the earth is not the centre of the work, and moves...".  He did so, as noted in his abjuration, as the Holy Office had pronounced him "vehemently to be suspected of heresy".  One might infer from the circumstances that he did so for other reasons; perhaps to avoid a sentence worse than the prison sentence he did receive. 

In the recent case of R v Snyder, 2011 ONCA 445, Doherty JA reflected upon pressure that might have been placed on a suspected recanting witness, Stuart Burgess; admittedly, Kyle Snyder probably had less sophisticated ways of encouraging Burgess to recant but apparently no less effective. 

Burgess and another fella, Kevin Doucette had broken into a residence intent on robbing a drug dealer.  Unfortunately for them, the drug dealer had moved out about a month earlier; more misfortune befell the two when the drug dealer's brother turned out to be living there and a fight ensued.  Burgess was slashed across the face and Doucette was stabbed.  

Doucette and Burgess were both arrested charged and ultimately pleaded guilty to robbery.  Burgess and Doucette both gave statements to the police that indicated that Snyder had asked them to commit the robbery [para 9].  At trial Burgess testified against Snyder indicating that Snyder promised to clear up a $600 drug debt if Burgess would do the robbery for him.  Burgess gave further details about the plan and the incident.  Snyder was convicted and appealed.

One of the grounds on appeal was based on fresh evidence in the form of a sworn affidavit from Burgess, some two years after the fact, in which Burgess stated that he falsely implicated Snyder and that Snyder in fact had nothing to do with the robbery.  

In considering the admissibility of the fresh evidence Doherty JA looked at whether it could have affected the verdict; in doing so, he noted that it called for "strict scrutiny" [para 63].  When applying that level of scrutiny, Doherty JA offered the following quotable quote in the context of what explanations may exist for the recantation thus demonstrating its lack of value as fresh evidence:

Absent any evidence explaining the origins of the recantation, there are at least two explanations that flow from the circumstances.  Either the witness, who was in custody and is clearly part of the criminal subculture, and who no longer had any reason to cooperate with the Crown, saw the opportunity to help out the appellant, another member of the criminal subculture, or the witness was under physical compulsion to recant his trial testimony.  According to the submissions made by Burgess's lawyer at the time of Burgess's sentencing, Burgess had been assaulted while in jail because of his cooperation with the Crown in this case.  Burgess also acknowledged in cross-examination that he had concerns about his safety in jail if he implicated others in criminal activity.  He related that concern to his refusal to identify the person whom he now claimed had actually asked him to perform the robbery [para 66] [emphasis added].

 

DG Mack

Quotable Quotes: The Criminal Trial

In the recent case of R v Hamilton, 2011 ONCA 399 the Ontario Court of Appeal considered the issue of interventions by the trial judge during a long and difficult murder trial. Two of the appellants argued on appeal that various interventions by the trial judge undermined the fairness of the trial [paras 35-42]. 

In dealing with this ground of appeal, the court first offered the following succinct summary on the approach to this issue:

When evaluating interventions by a trial judge, the fundamental question is whether the interventions led to an unfair trial: R v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 232, application for leave to appeal dismissed, [1986] S.C.C.A. No. 62. This assessment is made from the perspective of a reasonable observer present throughout the trial: R v. Stucky (2009), 240 C.C.C. (3d) 141 (Ont. C.A.), at para. 72.  Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not in themselves create unfairness [para 30].

After reviewing in detail the impugned interventions, the Court of Appeal offered the following quotable quote:

At a time when we are concerned about the increasing cost and length of criminal trials as well as their drain on resources and the pressures they bring to bear on the administration of justice, appropriate trial management is to be encouraged, not muted. In a case of this complexity and size, a good deal of deference is owed to an experienced trial judge who lived those dynamics for many months; dynamics that must have impacted on his decision to intervene from time to time. A microscopic analysis of interventions by a trial judge in large cases such as this should be avoided [para 49] [emphasis added].

DG Mack

New & Notable: Crown Jury Closing

Crown counsel are held to a high standard in the criminal justice system; assisting the court in one of its fundamental roles, the search for the truth, the Crown is expected to fulfil a dual role - vigorously prosecuting their case while acting as ministers of justice.  In the recent case of R v LeBrocq, 2011 ONCA 405, an apparent reference to this fact during closing submissions to the jury became the subject of an appeal.

During her closing submissions Crown counsel commented on her approach to the cross-examination of the accused, who was charged with several counts of sexual assault: "My duty is to test his evidence.  I'm not trying to be mean to him or make him look bad.  I have to test the veracity and truth of what he says.  I have duties to the court[.]" [emphasis added] [para 27]. 

The appellant argued that this was an improper comment which had the potential to "impermissibly elevate the Crown in the jury's eyes by suggesting that Crown counsel was impartial and that her submissions were motivated by her duty to the court to test the veracity of the appellant's evidence" [para 27].  The Court of Appeal disagreed:

These comments were not improper in our view.  In fact they accurately reflect the duty and obligation of Crown counsel and her position at trial... [emphasis added] [para 28].

DG Mack

New & Notable: Google Maps

While it is undoubtedly not the most ground breaking decision, the Ontario Court of Appeal's recent ruling in R v Calvert, 2011 ONCA 579 is nonetheless noteworthy. The issue upon which the appellant sought leave to appeal was the trial judge's decision, on his own initiative, to use Google maps to consider the issue of ASAP in an impaired case.

In dismissing the leave application the Court of Appeal offered the following:

...it was reasonable for the trial judge to take judicial notice of the distance between the arrest scene and the police station. In this regard, we note that the appellant accepts that generally speaking maps may be relied on by the courts when taking judicial notice because maps are a readily accessible source of indisputable accuracy [para 8].

DG Mack

New & Notable: Return of Disclosure

The legal saga of Basi, Virk and Basi continues; in the most recent installment 2011 BCSC 314, 2011 CarswellBC 564, [2011] BCJ No 420, the Crown brought an application for the return of all disclosure as well as application materials filed by the accused in relation to a previous Stinchcombe application.  In short, the Crown argued that all disclosure is provided with an implied undertaking that the material will only be used in the context of the charges from which it was provided and once those charges are completed the disclosure should be returned. 

Aneal Basi was opposed to the application arguing that there is no implied undertaking [para 7].  Dave Basi and Virk accept the implied undertaking but resist the return of the materials [para 8].

In a thorough decision, AW MacKenzie ACJSC first tackled the issue of whether there was an implied undertaking [paras 11-46].   With respect to that issue, MacKenzie ACJSC first recognized that "an accused who receives disclosure material pursuant to the Crown's Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding" [para 42].  On the basis of this undertaking MacKenzie ACJSC agreed with the Crown that since the proceedings are over the accused are not permitted to make any further use of the materials [para 45].

Having found that such an undertaking exists, MacKenzie J considered the impact from the use of these materials on the Stinchcombe application [para 47-64].  In doing so, she rejected the accused argument that the use of these materials in court, the access to them by the media and the reference to them in previous rulings somehow removes this implied undertaking:

...it is, in my opinion, immaterial that some of the Application Materials, or information contained in them, is accessible to the public from other sources. Indeed, Griffin J.'s comments apply more forcefully in the criminal context given the restrictions on the public examination of criminal files. The public availability of documents produced pursuant to Stinchcombe obligations does not of itself displace the limited purpose for which the documents were produced to the defendants [para 63].

Finally MacKenzie ACJSC considered the return of the disclosed materials [para 64-77].  In doing so she considered the issues at which the implied undertaking is aimed: minimization of the intrusion on privacy generated by compelled production and to prohibit improperly motivated proceedings to gain access to materials [para 72] .  Citing the large volume of material and number of third party interests implicated in the matter, Her Honour held that it was within the jurisdiction of the court and consistent with the implied undertaking to order the return of the materials.

 

DG Mack