Supreme Court Judgments

R. v. Taillefer; R. v. Duguay, [2003] 3 S.C.R. 307, 2003 SCC 70

Billy Taillefer                                                                                                    Appellant

v.

Her Majesty The Queen                                                                               Respondent

and between

Hugues Duguay                                                                                                Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Taillefer; R. v. Duguay

Neutral citation:  2003 SCC 70.

File Nos.:  28899, 28903.

2003:  January 22; 2003:  December 12.

Present:  McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for quebec

Constitutional law — Charter of Rights  — Fundamental justice — Full answer and defence — Duty to disclose evidence — Crown failing to disclose all relevant evidence to defence at trial of accused — Whether right of accused to make full answer and defence infringed — If so, nature of appropriate remedy — Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .

Criminal law — Evidence — Duty to disclose evidence — Crown failing to disclose all relevant evidence to defence at trial of accused — Whether right of accused to make full answer and defence infringed.

Criminal law — Evidence — Fresh evidence — Court of Appeal — Crown failing to disclose all relevant evidence to defence at trial of accused — Approach to be taken by appellate court in assessing fresh evidence where Crown has not complied with its duty to disclose.

Criminal law — Guilty plea — Withdrawal — Test applicable to accused seeking leave to withdraw guilty plea on basis of discovery of new evidence not  disclosed by Crown.

In 1991, T and D were convicted of the first degree murder of a teenage girl. The Court of Appeal upheld the verdict in T’s case, quashed D’s guilty verdict and ordered a new trial on a charge of second degree murder.  However, D negotiated a guilty plea to a reduced charge of manslaughter and was sentenced to 12 years in a penitentiary. During its investigation into the activities of the Sûreté du Québec, the Poitras Commission discovered that the police and the Crown had failed to disclose to the accused the existence of a considerable amount of evidence relevant to the defence at the 1991 trial.  The accused then appealed their convictions to the Court of Appeal.  After an item-by-item review of the fresh evidence, the court, in two separate judgments, held that there was no sufficient ground to warrant quashing the guilty verdicts and ordering new trials.

Held:  The appeals should be allowed.  The conviction of T for first degree murder is quashed and a new trial ordered on a charge of first degree murder.  Leave is granted to D to withdraw his guilty plea, his conviction for manslaughter is quashed and a stay of proceedings is directed.

The Crown must disclose all relevant information to an accused, whether inculpatory or exculpatory, subject to the exercise of the Crown’s discretion to refuse to disclose information that is privileged or plainly irrelevant.  This constitutional right is protected by s. 7  of the Charter , and helps to guarantee the accused’s ability to exercise the right to make full answer and defence.  The Crown’s duty to disclose is triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence.  The relevant information must be disclosed whether or not the Crown intends to introduce it as evidence at trial, before election or plea. Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that these persons are not proposed as Crown witnesses.  Having regard to the substantial amount of evidence that was not disclosed, and to the extremely relevant nature of that evidence, of which the prosecution could not have been unaware, it must be acknowledged that the accused were the victims of a serious infringement of their right to disclosure of evidence.  While the jury’s verdict was rendered before the decision in Stinchcombe, the Crown cannot rely on uncertainties in the law relating to the disclosure of evidence to justify the failure to disclose for which it is the focus of criticism in this case.  A review of the case law confirms that the duty already existed prior to Stinchcombe as a component of the accused’s right to a fair trial and to make full answer and defence.  In addition, the duty arises naturally from the Crown attorney’s role as an officer of the court in our criminal justice system.

Infringement of the right to disclosure is not always an infringement of the right to make full answer and defence.  To determine whether there is an infringement of the latter right, the accused will have to show that there was a reasonable possibility that the failure to disclose affected the outcome at trial or the overall fairness of the trial. The principles that apply to the admission of fresh evidence discovered after the breach of the duty to disclose were clearly established by this Court in Dixon.  The method of analysis prescribed by Dixon consists of two distinct stages.  The first stage involves assessing the impact of the fresh evidence on the outcome of the trial.  The undisclosed information must be examined to determine the impact it might have had on the decision to convict.  The onus is on the accused to demonstrate that there is a reasonable possibility that the verdict might have been different but for the Crown’s failure to disclose all of the relevant evidence.  Second, the appellate court must determine whether there was a reasonable possibility that the jury, with the benefit of all of the relevant evidence, might have had a reasonable doubt as to the accused’s guilt.  The existence of a reasonable possibility of a different verdict must be determined in the light of the evidence taken as a whole.  The appellate court should not examine the undisclosed evidence, item by item, to assess its probative value; that is the role assigned to the trier of fact.  Rather, an effort must be made to reconstruct the overall picture of the evidence that would have been presented to the jury. A negative answer at the first stage does not bring the analysis to a close.  The second stage requires that the appellate court assess the impact of the fresh evidence on the overall fairness of the trial. It will not be enough to determine whether the right to make full answer and defence has been infringed having regard solely to the nature of the fresh evidence.  The potential usefulness of that evidence to the defence will have to be considered.  This reasonable possibility of affecting the overall fairness of the trial must be based on reasonably possible uses of the non‑disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure.  Here again, the appellate court must not assess the possible uses of the fresh evidence based on an item-by-item analysis of the probative value of the evidence.  It must ascertain whether the failure to disclose deprived the accused of certain evidential or investigative resources.  The infringement of the right to make full answer and defence may arise from a reasonable possibility that the failure to disclose had an impact on the overall fairness of the trial, even if it cannot be concluded that the verdict might have been different.

An accused seeking leave to withdraw his or her guilty plea on the ground of the discovery of fresh evidence that was not disclosed by the prosecution must demonstrate that there is a reasonable possibility that the fresh evidence would have influenced his or her decision to plead guilty, if it had been available before the guilty plea was entered.  The test is still objective in nature.  The question is whether a reasonable and properly informed person, put in the same situation, would have run the risk of standing trial if he or she had had timely knowledge of the undisclosed evidence, when it is assessed together with all of the evidence already known.

In this case, the Court of Appeal made a fundamental methodological error when it undertook to analyse the fresh evidence by breaking it down or addressing its individual parts, rather than analysing the fresh evidence as a whole in order to assess its impact on the trial.  Applying the Dixon test calls for an appellate court to assess the substance of the fresh evidence.  In the event that the jury had not been deprived of the evidence, the overall picture of the trial would have been very different.  First, the credibility of certain prosecution witnesses could have been undermined using the witness statements whose existence was not disclosed to the defence.  Second, the jury would have been offered a theory different from the Crown’s concerning the events that took place during the night of the murder.  Moreover, by examining each part of the fresh evidence on its own and comparing those parts to the evidence produced at trial, the Court of Appeal applied a more exacting standard than “reasonable possibility”.

The Court of Appeal also erred in its assessment of the effect of the failure to disclose on the overall fairness of T’s trial and the overall fairness of the process that led to D’s decision to enter a guilty plea.  In T’s case, the Court of Appeal restricted its analysis to the impact of the fresh evidence on the result of the trial and failed to assess its impact on the overall fairness of the trial.  Had the court inquired into the possible and realistic uses of the evidence by the defence, its conclusions would have been quite different.  T has succeeded in showing that it is reasonably possible that the new evidence would have had an impact on the overall fairness of the trial. Many parts of the fresh evidence could have been used by the defence at trial, whether to impeach the credibility of certain witnesses and the credibility of the Crown’s theory or to gather new evidence.  In D’s case, the Court of Appeal erred when it applied a subjective test in determining whether there was a reasonable possibility that D would have decided not to stand trial again if he had known about the undisclosed evidence.  The test is what the reasonable person in the same situation would have done.  The court did not give any attention to the reasonable possibilities of using the fresh evidence that were available to the defence and to the effect of such possibilities on a reasonable decision to take the risk of a second trial.  In the circumstances of this case, having regard to the volume, weight and relevance of the undisclosed evidence and the new possibilities that the opportunity to use that evidence would have offered, it does not seem unreasonable to think that an accused, armed with a more solid defence than at his first trial, at which the  jury deliberations had lasted 14 days, would have hesitated to admit his guilt or would have had more confidence about standing trial a second time.  The Crown’s breach of its duty to disclose all of the relevant evidence cast doubt on the validity of the accused’s admission of guilt and the waiver of the presumption of innocence that a guilty plea involves.  The constitutional right of the accused to make full answer and defence has been seriously infringed.

The appropriate and just remedy for an infringement of the right to make full answer and defence arising out of the Crown’s breach of its duty to disclose must be determined on the basis of the seriousness of the infringement.  Where the breach of that duty results in an infringement of the accused’s right to make full answer and defence, ordering a new trial will be the minimum remedy. A stay of proceedings is ordered only in exceptional circumstances, where the accused has demonstrated that the infringement of the right is irreparable.  In T’s case, the appropriate and just remedy in the circumstances is committal for a new trial on the charge of a first degree murder.  It would be premature to order a stay of proceedings, in the case of such a serious crime, where the charge is still first degree murder.  The transcripts of all of the testimony given at the preliminary inquiry and the first trial are still available.  As well, at this stage in the case, we can only speculate as to the prejudice that the accused would suffer by reason of the impeachment of the witnesses’ credibility and the loss of opportunities for investigation.  While the infringement of the accused’s rights might be characterized as very serious, it certainly appears to result from an incorrect understanding of the nature and scope of the duty of disclosure.  In the event that the trial judge determines that the accused cannot be given a fair trial, that judge could exercise his or her discretion at any time and order a stay of proceedings.  On the particular facts of D’s case, a stay of the proceedings is the appropriate remedy.  Ordering a new trial when the accused has already served two thirds of his sentence and is eligible for parole would contribute to perpetuating an injustice and would tarnish the integrity of our judicial system.  The accused has already effectively spent the time in prison that is normally imposed in the case of any term to which he might be sentenced if he were convicted.  This is plainly one of those cases where the need to avoid offending fair play and decency prevails over society’s interest in the prosecution of criminal cases.  There is no other remedy that would cure the prejudice suffered by D.

Cases Cited

Applied: R. v. Dixon, [1998] 1 S.C.R. 244, aff’g R. v. McQuaid (Dixon Appeal), [1997] N.S.J. No. 20 (QL); approved: R. v. Creamer (1995), 97 C.C.C. (3d) 108; R. v. Jarema (1996), 43 Alta. L.R. (3d) 345; R. v. Peterson (1996), 106 C.C.C. (3d) 64; Comtois-Barbeau v. La Reine, [1996] R.J.Q. 1127; R. v. W. (W.) (1995), 100 C.C.C. (3d) 225; R. v. T. (R.) (1992), 10 O.R. (3d) 514; disapproved:  R. v. Pottie (1996), 150 N.S.R. (2d) 56;  distinguished:  Palmer v. The Queen, [1980] 1 S.C.R. 759; referred to:  R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Harbottle, [1993] 3 S.C.R. 306; Adgey v. The Queen, [1975] 2 S.C.R. 426; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Egger, [1993] 2 S.C.R. 451; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. C. (M.H.), [1991] 1 S.C.R. 763; Lemay v. The King, [1952] 1 S.C.R. 232; Duke v. The Queen, [1972] S.C.R. 917; Caccamo v. The Queen, [1976] 1 S.C.R. 786; Taillefer v. La Reine, [1989] R.J.Q. 2023; R. v. Savion (1980), 52 C.C.C. (2d) 276; Re Cunliffe and Law Society of British Columbia (1984), 11 D.L.R. (4th) 280; Re Regina and Arviv (1985), 19 C.C.C. (3d) 395; R. v. Bourget (1987), 35 C.C.C. (3d) 371; Boucher v. The Queen, [1955] S.C.R. 16; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Antinello (1995), 97 C.C.C. (3d) 126; R. v. Hamilton (1994), 94 C.C.C. (3d) 12; R. v. Santocono (1996), 91 O.A.C. 26; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; R. v. La, [1997] 2 S.C.R. 680; R. v. Conway, [1989] 1 S.C.R. 1659; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; R. v. Gamble, [1988] 2 S.C.R. 595; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, 2003 SCC 62; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Young (1984), 40 C.R. (3d) 289; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Power, [1994] 1 S.C.R. 601; R. v. Jack (1996), 113 Man. R. (2d) 260, rev’d [1997] 2 S.C.R. 334; R. v. Datey, [1999] Q.J. No. 1567 (QL); R. v. Hunter (2001), 155 C.C.C. (3d) 225; R. v. Mitchelson (1992), 78 Man. R. (2d) 134; R. v. P. (G.) (1998), 128 C.C.C. (3d) 159; R. v. L. (R.D.) (1997), 60 Alta. L.R. (3d) 364; R. v. Sophonow, [1985] M.J. No. 9 (QL); R. v. Sophonow (No. 2) (1986), 25 C.C.C. (3d) 415.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 7 , 24(1) .

Criminal Code , R.S.C. 1985, c. C-46 , ss. 231(5) , 690  [now rep. 2002, c. 13, s. 70].

Authors Cited

Nova Scotia.  Royal Commission on the Donald Marshall, Jr., Prosecution:  Findings and Recommendations, vol. 1.  Halifax:  The Commission, 1989.

Quebec.  Commission Poitras.  Rapport de la Commission d’enquête chargée de faire enquête sur la Sûreté du Québec.  Québec:  La Commission, 1999.

APPEALS from judgments of the Quebec Court of Appeal, [2001] Q.J. No. 3975 (QL) and [2001] Q.J. No. 4037 (QL), affirming decisions of the Superior Court.  Appeals allowed.

Johanne St-Gelais, for the appellant Billy Taillefer.

Louis Belleau, for the appellant Hugues Duguay.

Pierre Lapointe, for the respondent.

English version of the judgment of the Court delivered by

LeBel J. —

I.  Introduction

1                                   The issue in the appeal by the appellants Taillefer and Duguay from their convictions for first degree murder and manslaughter, respectively, is the nature of the Crown’s duty to disclose evidence in a criminal trial and the consequences of breach

of that duty.  Common law jurisprudence acknowledged the existence of that duty.  The application of the constitutional principles set out in the Canadian Charter of Rights and Freedoms  developed it.  Our Court’s decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326, enshrined it among the fundamental rules of Canadian criminal procedure.  It facilitates the trial process, but, most importantly, it affords additional protection for the right of accused persons to make full answer and defence.  The way in which the disclosure of evidence was viewed in the past — as an act of goodwill and cooperation on the part of the Crown — played a significant part in catastrophic judicial errors.  On this point, we need only recall that the Royal Commission on the Donald Marshall, Jr., Prosecution identified the failure to disclose all the relevant evidence as one of the causes of the judicial error that deprived Donald Marshall of his liberty for 11 years, for a crime he had not committed (Royal Commission on the Donald Marshall, Jr., Prosecution:  Findings and Recommendations (1989), vol. 1, at pp. 238 et seq.).

2                                   The issue in this Court arises out of the killing of Sandra Gaudet, a 14‑year-old girl, in Val-d’Or during the night of March 9 to 10, 1990, and the legal consequences of that killing.  After many twists and turns, the Quebec Court of Appeal upheld the first degree murder conviction of the appellant Taillefer and denied the appellant Duguay leave to withdraw his plea of guilty to a reduced charge of manslaughter.  The judgments under appeal were rendered after the Commission d’enquête chargée de faire enquête sur la Sûreté du Québec (“Poitras Commission”) expressed its concerns about the conduct of the criminal investigation and the charge in this case.  During its own investigation into the activities of the Sûreté du Québec, the Poitras Commission discovered that the police and the Crown had failed to disclose the existence of a considerable amount of evidence relevant to the charge or to the defence to the appellants during their first trial at the criminal assizes in 1991.

3                                   In the circumstances of this case, and particularly because of the seriousness of the infringements of the appellants’ fundamental rights by the police and the Crown, I find that the decisions of the Court of Appeal must be set aside.  In the appellant Taillefer’s case, a new trial on the charge of first degree murder must be ordered.  In the appellant Duguay’s case, having regard to the particular context of his case, and specifically to the fact that he has already served at least eight years of any term of imprisonment that might be imposed, I would instead, after allowing his appeal, order a stay of proceedings.

4                                   Because of the length and complexity of these cases, it will be necessary, for a proper understanding of the issues raised and of their precise legal content, to review the origin of and developments in these matters starting with the death of Sandra Gaudet.  The series of judgments rendered by the Quebec Court of Appeal at various points in these matters will also have to be carefully examined.

II.  Origin and Judicial History of the Cases

A.        The Murder, the Police Investigation and the Charges

5                                   Sandra Gaudet, a 14-year-old girl, was killed in Val-d’Or during the night of March 9 to 10, 1990.  The evidence was that she left her family home at about 8:00 p.m., during the evening of March 9, and never returned.  On Saturday, March 10, 1990, Sandra Gaudet’s mother reported her daughter’s disappearance to the Val-d’Or police.  On Monday, March 12, 1990, the victim’s body was found near chemin Baie‑Carrières in Val-d’Or, buried in the snow.  The victim was dressed only in her socks and a torn and undone brassiere.  Dr. Claude Pothel, the pathologist, concluded that death was caused by asphyxiation resulting from manual strangulation.  He observed the presence of marks that he associated with bites on the victim’s breasts and vulva.

6                                   The police investigation led to the arrest of the appellants Billy Taillefer and Hugues Duguay on April 27, 1990.  On October 29, 1990, they were charged with the first degree murder of Sandra Gaudet.

B.      The First Trial at the Assizes and the Guilty Verdicts

7                                The appellants were tried on the charge of the first degree murder of Sandra Gaudet.  At the end of the trial, the assizes jury found them guilty of the crime with which they were charged.  At this point, it is important to summarize the evidence presented by the prosecution and the defence at trial, in order to assess the impact of the Crown’s breach of its duty of disclosure.

(1)  The Prosecution Evidence

8                                Steve Fortier, the victim’s friend, testified that he was with Sandra Gaudet on the evening of Friday, March 9, 1990.  He said that she went to meet him at his aunt’s home, where he was babysitting, at about 8:30 p.m.  They left together at about 9:00 and went to his family home.  They then spent the evening talking with his mother and watching television.  He added that Sandra had left his home at 11:45, alone, to go home.  He testified that Sandra normally made that trip by taking a route that included chemin Baie-Carrières.  This meant that she had to walk close to the home of Laurent Taillefer, the father of the appellant Billy Taillefer.

9                                Christine Côté, a server at the Bar Morocco in Val-d’Or, testified that she had served the appellant Duguay two beers on the evening of March 9, 1990.  She said that the appellant Duguay had been there with another individual whom she could not identify.  Pierre Bolduc, the taxi driver, testified that he had gone to the Bar Morocco on the evening of March 9, 1990, between 11:30 p.m. and midnight.  He said that he had picked up two passengers there, one of whom got into the front seat while the other got into the back seat.  He subsequently identified the individual who rode in the front of the vehicle with him as Billy Taillefer.  At his passengers’ request, he ended the trip behind the Petit Marché convenience store, near Laurent Taillefer’s home.

10                            At about 1:50 a.m. on March 10, Laurent Taillefer asked a co-worker, André Caouette, whether he could take over for him earlier.  Mr. Caouette then started his shift at 3:00 rather than 5:00 a.m.  In addition, Jeanine Denommé, the co-owner of the Shell Denommé convenience store in Val-d’Or, testified that Laurent Taillefer bought gas from her at 3:10 a.m. on March 10, 1990.

11                            Isabelle Martel, who lived in the apartment upstairs from Laurent Taillefer’s apartment at the time of the murder, testified that she had heard unusual noise coming from the downstairs apartment during the night of March 9 to 10, 1990.  She said that she had heard [translation] “scuffling” and a loud male laugh at about a quarter past midnight.  Later in the night, she said, she heard the voice of an angry person and the noise made by a fist hitting a table or wall.  She then said that she had heard the shower in Laurent Taillefer’s apartment twice, at about 6:00 or 6:30 on the morning of March 10, 1990.  Shortly after that, she saw two individuals leave Laurent Taillefer’s apartment, whom she later identified as the appellants Taillefer and Duguay.

12                            Ghyslaine Pomerleau, who lived near Laurent Taillefer’s apartment, testified that she had heard the [translation] “unusually long” scream of a teenaged girl coming from around Laurent Taillefer’s home during the night of March 9 to 10, 1990.  She said that she had heard the scream after seeing an unpleasant scene in a movie on television.  The evidence further established that the scene in question had aired at midnight.

13                            Donald Saint-Pierre, a truck driver, and his 14-year-old son, Carl Saint‑Pierre, testified that they had seen a small red pick-up truck near chemin Baie-Carrières between 5:30 and 6:00 on the morning of March 10, 1990. During the investigation, Donald Saint‑Pierre identified that vehicle as the one belonging to Laurent Taillefer.  Carl Saint‑Pierre said, after a hypnosis session conducted by the Sûreté du Québec, that he had seen a red Tracker with a [translation] “white vinyl roof” on chemin Baie-Carrières.

14                            The Attorney General also introduced into evidence two telephone conversations between the appellants, which were intercepted by the police on April 6, 1990.  In certain parts of those conversations, the appellants spoke as if they were innocent, while at other times they made incriminating comments, saying that only God and they themselves knew who had killed Sandra Gaudet.

15                            After they were arrested, the appellants made incriminating statements to the investigating police officers.  The statements were ruled admissible in evidence after a voir dire was held.  In his statement, Billy Taillefer admitted committing the murder of Sandra Gaudet.  According to his admissions, Hugues Duguay and he had abducted Sandra Gaudet and then dragged her into Laurent Taillefer’s home, where they forcibly undressed her.  He said that he had not raped the victim, although he acknowledged that he had ejaculated on her.  He also said that Hugues Duguay had bitten her breasts.  Because the victim was struggling and screaming, Billy Taillefer choked her by putting his hands around her neck until she lost consciousness.  He then tried to revive her, but without success.  According to Billy Taillefer’s statement, when his father, Laurent Taillefer, came home from work, he was enraged to find the victim in his bed and ordered the appellants to [translation] “get rid of” the body.  Using Laurent Taillefer’s vehicle, they transported their victim’s body to the wooded area near chemin Baie-Carrières and left it there, and then returned to Laurent Taillefer’s home, after throwing the victim’s clothing out on the side of the road.  They left Laurent Taillefer’s home at about 6:00 or 7:00 a.m.  Billy Taillefer finally said that he had consumed a large quantity of alcohol during the day and evening of March 9, 1990.  In addition to that statement, Billy Taillefer signed a handwritten note addressed to Sandra Gaudet’s parents in which he asked them to forgive him for the unintentional act he had committed.

16                            Hugues Duguay stated that he had but a vague memory of the events.  He had consumed a large amount of alcohol and cocaine during the day and evening of March 9, 1990.  According to his statement, he had followed Billy Taillefer when he dragged Sandra Gaudet into Laurent Taillefer’s home.  He said that Billy Taillefer was holding the victim down when she struggled.  Then she stopped moving.  He said that he no longer remembered very well whether or not he had helped Billy Taillefer to undress the victim, or whether he had touched her.  Billy Taillefer and he used Laurent Taillefer’s Tracker to dispose of the victim’s body and her clothing, but he did not remember the exact place.

17                            The appellants’ dental impressions were also introduced in evidence.  At the trial, Dr. Dorion, a dental surgeon, stated that, in his opinion, the bite marks found on the victim’s left breast and pubic area had been made by Hugues Duguay.

(2)  The Defence Evidence

18                            The accused first raised an alibi defence to the charges against them.  They said that they were in Senneterre, 70 kilometres from Val-d’Or, during the evening of March 9.  Billy Taillefer testified that he had spent part of the evening at the Jobber, a bar in Senneterre.  He stated that he had left that bar between 11:30 p.m. and midnight and had gone to another establishment called the Contre-Bar, where he met a few people, including his sister, Shirley Taillefer.  He left that place at about 2:00 in the morning of March 10, 1990, and went immediately home.  A number of witnesses confirmed that they had seen Billy Taillefer in Senneterre during the evening of March 9, 1990.  Hugues Duguay also said that he had been in Senneterre during the evening of March 9, 1990, and had visited a number of establishments during the evening, including the Contre-Bar.  He then went back home, where he watched television with his brother, and went to bed at about midnight or half past.  A number of witnesses also gave evidence that they had seen Hugues Duguay in Senneterre during the evening of March 9.

19                            The appellants also disputed the voluntariness of their statements to the police.  They contended that they had been threatened and beaten during questioning.  They testified that the police had in fact dictated the content of their statements to them.

20                            In rebuttal to the testimony of Dr. Dorion, the appellants introduced an expert opinion prepared by two experts, Dr. Stanley Kogan and Dr. Brian Jeffrey Jonston, who challenged the validity and reliability of the methods used by one of the prosecution experts, Dr. Dorion, in his report on the marks found on the victim’s body.  Those experts even expressed doubt about whether the marks were made by bites, as Dr. Dorion had said.

21                            On February 1, 1991, after deliberating for 14 days, the jury found the appellants guilty of the first degree murder of Sandra Gaudet.  They were sentenced to life imprisonment without possibility of parole for 25 years.  The appellants Taillefer and Duguay then appealed to the Quebec Court of Appeal.

C.     The First Appeals to the Court of Appeal (Proulx J.A.) (1995), 40 C.R. (4th) 287

22                            In their appeal, the appellants argued a number of grounds.  Those grounds were divided into several categories by the Court of Appeal (at para. 3): [translation] “1. Change of venue; 2. Jury selection; 3. The arrest and the admissibility of the out-of-court statements; 4. The interception by the police of the conversation between the appellant Duguay and his father; 5. The admissibility of the testimony given by Carl St-Pierre after a hypnosis session, and the issue of hypnosis; 6. [C]ertain restrictions on cross-examination; 7. The refusal by the judge to allow psychiatric evidence; 8. The forensic dentistry expert Dr. Dorion; 9. Rebuttal evidence; 10. The Crown’s argument; 11. The charge to the jury on the following points: (i) the standard of proof; (ii) the identification evidence; (iii) the credibility of the witnesses; (iv) the burden of proof regarding voluntary intoxication; (v) the alibi defence; (vi) certain elements of first degree murder [and the responsibility of an accomplice to the commission of a first degree murder under s. 231(5)  of the Criminal Code  having regard to the decision in R. v. Harbottle, [1993] 3 S.C.R. 306]; (vii) the theory of the defence; 12. The unreasonableness of the verdict; 13. Communication between a juror and a witness during the jury’s deliberations.”

23                            On June 12, 1995, in a judgment for which the reasons were written by Proulx J.A., the Court of Appeal dismissed the appeal and upheld the verdict of guilty for the first degree murder of Sandra Gaudet in the case of the appellant Taillefer.  In his reasons, Proulx J.A. held that the errors committed by the trial judge did not prejudice that accused.  Moreover, even if those errors had not been made, the jury’s verdict would have remained the same.  The appellant Taillefer then filed an application for leave to appeal to this Court, which was dismissed on February 21, 1996.

24                            However, the Court of Appeal allowed the appeal by the appellant Duguay.  In the court’s opinion, the instructions given to the jury concerning Hugues Duguay’s participation in the first degree murder of Sandra Gaudet, under s. 231(5)  of the Criminal Code , R.S.C. 1985, c. C-46  (“Cr. C.”), did not adhere to the principles laid down by this Court in Harbottle, supra.  The trial judge did not tell the jury that Hugues Duguay could only be held responsible for the first degree murder of Sandra Gaudet if the evidence established that his participation in the crime was a substantial cause of the victim’s death.  In the court’s opinion, the appellant Duguay could not have been convicted of first degree murder on the evidence presented at trial concerning his role in this matter.  Accordingly, the court directed that a new trial be held on a reduced charge of second degree murder.

25                            On August 16, 1995, the appellant Duguay changed lawyers.  His new counsel then negotiated a guilty plea to a reduced charge of manslaughter with the Crown.  François Tremblay J., of the Superior Court, then accepted the guilty plea and sentenced the accused to 12 years in a penitentiary.

D.     The Poitras Commission and its Consequences

26                            On February 19, 1999, while he was still in a penitentiary, the appellant Duguay received a letter from the Associate Deputy Minister of Justice of Quebec, Mario Bilodeau, and a copy of the parts of the Poitras Commission’s report that related to his and to the appellant Taillefer’s cases.  The Poitras Commission’s report raised a number of questions concerning the conduct of the appellants’ case by the police and the Crown.  The report noted, inter alia, that a considerable body of evidence had not been disclosed to the defence at the time of the appellants’ trials.  It accordingly recommended that the Minister of Justice reopen the case.

27                            The appellant Duguay then applied to the Court of Appeal for an extension of the time for appealing, for leave to appeal his conviction, and to introduce fresh evidence.  Those applications were allowed.  The appellant’s case then came up for a hearing before the Quebec Court of Appeal for the second time.

28                            The appellant Taillefer had received the same information concerning the report of the Poitras Commission.  Because he had exhausted the usual remedies, he asked the Minister of Justice of Canada to refer his case to the Court of Appeal under s. 690 Cr. C. (which has since been repealed).  On October 16, 2000, under the authority of that provision, the Minister of Justice referred the matter to the Court of Appeal so that the appellant Taillefer’s conviction for the first degree murder of Sandra Gaudet might be reviewed in light of any fresh evidence that might be admitted.  The parties introduced fresh evidence before the Court of Appeal, which then heard the new appeal by the appellant Duguay and the application for review of the trial and of the appellant Taillefer’s conviction.

E.      The Fresh Evidence and Its Purpose

29                            The Poitras Commission report revealed that a considerable amount of evidence had not been disclosed to the defence at trial.  The fresh evidence essentially consisted of the oral and written statements of various witnesses gathered by the police during their investigation, investigation notes taken by police officers in the course of questioning the accused, and the information sworn by a police officer for the purpose of obtaining a search warrant.  As we shall see later, when more details are added, some of the undisclosed evidence was relevant for the defence’s purposes.  A considerable part of it could have been used to impeach the credibility of certain prosecution witnesses.  Other evidence raised serious doubts as to the credibility of the theory put forward by the Crown.  Finally, the defence could have used some of that evidence to explore or discover new avenues of investigation.

30                            First, the Crown failed to disclose the statements of numerous witnesses which contradicted the testimony of Donald and Carl Saint-Pierre concerning the presence of Laurent Taillefer’s vehicle at the location where the victim’s body was discovered.  The police questioned 25 witnesses, who stated that they had seen various types of vehicles at the same place at the same time, several of which did not match the description given by the Saint-Pierres at trial.

31                            In addition, the Crown did not disclose a written statement made by André Caouette, Laurent Taillefer’s co-worker.  At trial, Mr. Caouette testified that he had received a call from Laurent Taillefer during the night of the murder, asking him to take over for him sooner than scheduled.  In a statement dated March 17, 1990, and thus taken before the trial, that witness had stated that he himself had taken the initiative of asking Laurent Taillefer whether he would agree to have Mr. Caouette replace him earlier during the night of March 9 to 10, 1990.  That statement contradicts the theory that Laurent Taillefer had left his work in a hurry in order to assist the accused in getting rid of the victim’s body.

32                            According to the Poitras Commission’s report, Isabelle Martel, the witness who said at trial that she had heard incriminating noises coming from Laurent Taillefer’s apartment during the night of the murder, had made a statement of a different tenor to police prior to the trial.  The handwritten notes made by an officer of the Val-d’Or municipal police, who spoke with Isabelle Martel on April 2, 1990, reveal that she could not say whether she had heard noise coming from Laurent Taillefer’s apartment during the nights of March 9 or 10, 1990.  That statement was never disclosed to the defence, nor was the statement made by her husband, Juan Caruncho, who said that he had not heard any particular noises during the night of the murder.

33                            Nor was a particularly important statement made by a friend of the victim, Isabelle Brouillette, dated March 14, 1990, disclosed to the defence.  That witness said that she had met Sandra Gaudet at a dance on the night of the murder, shortly before midnight.  She said that the dance had been held at the far east end of the city of Val‑d’Or.  That statement was in direct conflict with the Crown’s theory, which was that the victim was abducted at about midnight at the far west end of the city, in the vicinity of Laurent Taillefer’s home.

34                            Ghyslaine Pomerleau, the witness who stated at trial that she had heard the [translation] “unusually long scream of a teenaged girl” during the night of the murder, had made a number of statements prior to trial which were never disclosed to the defence.  The version of the facts that this witness gave changed over the course of her statements.  For instance, on March 20, 1990, she said that she had heard a woman’s scream.  The next day, she described the scream as being rather the scream of a teenaged girl.  On April 10, 1990, the scream became the scream of a person [translation] “surprised from behind”.  And at trial, she described the voice she had heard as the voice of a girl, not a small child or an adult.  In her testimony, in the presence of the jury, she also said that she had made only one statement to the police.

35                            The Crown also failed to disclose a statement made by Guy Leblanc, a taxi driver in Val‑d’Or.  On March 26, 1990, he told the Val‑d’Or municipal police that on the night of the murder, at about midnight, he had noticed that there was a big, light‑brown vehicle near the intersection of Baie‑Carrières and Forest, in the vicinity of the victim’s home.  According to him, three people sat in the vehicle, one of whom was a girl who matched the description of Sandra Gaudet.  The girl had made a gesture toward him that could have been interpreted as a sign of distress.

36                            There was no disclosure of a sworn information submitted to a justice of the peace on April 12, 1990, in order to obtain a search warrant to seize the mould of Laurent Taillefer’s lower teeth.  In that information, the police officer said that Dr. Dorion, an expert in forensic dentistry, had told him that Laurent Taillefer’s upper plate was consistent with the marks left on Sandra Gaudet’s breast.  That statement is inconsistent with Dr. Dorion’s testimony at trial.  This expert had said at trial that Duguay’s teeth were consistent with the marks left on the victim’s body and that the word [translation] “consistent” meant [translation] “beyond a reasonable doubt”.

37                            The written statements by Gilles Barron and Chantal Barrette, dated March 13, 1990, were also not disclosed to the defence.  In their statements, these witnesses said that they had seen two men of about fifty years of age with a shovel on chemin Baie-Carrières the day after the murder.  The two men had a brown car.  They had gone back to their car when the two witnesses stopped their own vehicle.

38                            Last, the Crown did not inform the defence of the existence of  notes taken during the questioning of the appellants Taillefer and Duguay by Lieut.  Pelletier and the investigating officer, Cossette.  The officers who questioned Billy Taillefer and Hugues Duguay had instructions to report periodically to Lieut.  Pelletier and Cossette on the progress of the interrogations.  It appears that some of the information in those notes contradicts the testimony given by the police officers, Bettez, Lussier, Leduc and Charette, at the voir dire and in the presence of the jury, concerning the conduct of those interrogations and the demeanour of the accused.

III.  Judgments Below

39                            Notwithstanding this fresh evidence, the appellants met with total failure in the Court of Appeal.  That court held that there was no sufficient ground to warrant quashing the guilty verdicts and ordering new trials.  It rendered two separate but unanimous judgments; the reasons were written by Biron J.A. in Hugues Duguay’s appeal and by Beauregard J.A. in Billy Taillefer’s appeal.  I shall now summarize the content of the two opinions.

A.     The Appellant Duguay’s Case, [2001] Q.J. No. 4037 (QL)

40                            Biron J.A. denied the appellant Duguay leave to withdraw his guilty plea, thereby upholding the verdict against him.  He was of the view that the guilty plea, which was voluntary and unequivocal, complied with the requirements imposed by the decisions in Adgey v. The Queen, [1975] 2 S.C.R. 426, and R. v. Lyons, [1987] 2 S.C.R. 309, on this point.  In his opinion, the appellant was perfectly aware of the allegations against him and of the consequences of his plea, which was in fact taken after a new trial had been ordered.

41                            Biron J.A. then examined the problem of the compliance with the Crown’s duty to disclose.  In his opinion, it was of no consequence that the verdict in this case had been rendered before this Court’s decision in Stinchcombe, because [translation] “the duty to disclose was pre-existing and was triggered whenever there was a reasonable possibility of the information being useful to the accused in making full answer and defence” (para. 38).  In his opinion, the Crown had violated its duty to disclose in this case.

42                            Then, relying on this Court’s decision in R. v. Dixon, [1998] 1 S.C.R. 244, Biron J.A. examined the impact of the failure to disclose on the guilty plea.  He pointed out that [translation] “[w]hen an accused waives the presumption of innocence by pleading guilty, he must be aware of the evidence that the Crown has in its possession, both the evidence that is favourable to him and the evidence that is not”  (para. 46).  He rejected the appellant’s solemn declaration and the declarations of his counsel to the effect that he would never have admitted his guilt if he had known the facts revealed by the Poitras Commission, which pointed to his innocence, as not credible.  In his opinion, [translation] “the appellant actually admitted the facts at the hearing, in 1995, and . . . pleaded guilty because he was guilty and he was afraid of being convicted of murder again” (para. 54).

43                            According to Biron J.A., [translation] “we must ask whether the appellant, who, in his heart of hearts, admitted the facts and was afraid of being convicted of murder again, would have pleaded guilty, knowing what had not been disclosed to him that the Crown should have disclosed before accepting his guilty plea” (para. 55).  In his opinion, in order for the appellant to be given leave to withdraw his guilty plea, it had to be determined whether, despite that plea, he was entitled to one of the remedies sought on the basis of the failure to disclosure.  Otherwise an accused who had admitted guilt would be granted broader rights than a person who has always maintained his or her innocence.  To determine whether the failure to disclose evidence should enable the appellant to withdraw his guilty plea, he applied the test laid down by this Court in Palmer v. The Queen, [1980] 1 S.C.R. 759, which sets out the requirements for admitting fresh evidence on appeal.  Before permitting the guilty plea to be withdrawn, [translation] “the Court must be persuaded, after examining the evidence now in the record, that together with the other evidence adduced at trial, the fresh evidence could reasonably have affected the result and prompted the appellant to run the risk of a second trial on a murder charge” (para. 59).

44                            In light of that test, Biron J.A. carefully reviewed the fresh evidence in all its details, assessing the impact of each piece of evidence on the outcome of the trial.  He ruled out each of those pieces of evidence, concluding that none of them could have had an effect on the verdict or influenced the appellant’s decision to admit his guilt.

45                            Biron J.A. first examined the alleged inconsistencies between the notes taken by Lieut.  Pelletier and the investigating officer, Cossette, and the testimony of police officers Bettez and Lussier on the voir dire and at trial.  In his opinion, the inconsistencies between the police testimony and the notes adduced as fresh evidence were not so serious as to justify excluding the incriminating statement made by the appellant.  That confession, in his opinion, was nonetheless free and voluntary.

46                            Biron J.A. then analyzed the impact of the fresh evidence on the testimony given by Dr. Dorion, who had said at trial that the appellant’s teeth were consistent with the marks left on the victim’s breast, and that this meant that he was, [translation] “beyond a reasonable doubt”, the person responsible for them.  Biron J.A. conceded that the credibility of Dr. Dorion’s testimony was problematic.  First, before the trial, he had certified under oath, for the purposes of an information to be used to obtain a search warrant, that the marks left on the victim’s body were consistent with Laurent Taillefer’s teeth.  Second, during the trial, this same witness had stated that the marks were consistent with the appellant Duguay’s teeth.  Third, with respect to the fresh evidence, he seems to have tried to qualify his earlier testimony, by adding that the word “compatible” [consistent] did not, in his mind, mean “beyond a reasonable doubt”.  However, Biron J.A. was of the opinion that this credibility problem had been apparent at the trial.  In his view, the sworn information, which was adduced as fresh evidence, could not have served to further impeach that testimony.  He concluded that he therefore saw [translation] “nothing in this evidence that would change the result” (para. 79).

47                            Biron J.A. also examined the content of the prior statements by various witnesses that contradicted the testimony they gave at trial, or undermined the Crown’s theory with respect to the events relating to the murder.  First, he analyzed the impact of the statement by Isabelle Brouillette, who had said, before the trial, that she had seen the victim at about midnight at a dance at the far east end of the city.  According to the Crown, the victim was then at the other end of the city, near Laurent Taillefer’s home.  While Biron J.A. acknowledged that [translation] “if that statement had been made at trial by a credible person, it would have supported the appellant’s and Taillefer’s alibi defence” (para. 82), he concluded that the Crown had no obligation to call Brouillette to testify.  In his view, this witness also had little credibility.  When she was heard in relation to the fresh evidence, Isabelle Brouillette stated that she was no longer certain whether she had seen the victim on the evening before she disappeared or the previous week.  She also acknowledged that at the time she made the statement, she was distressed because she had been a victim of incest.  In Biron J.A.’s opinion, there was nothing to show that the police had brought undue pressure to bear on her to alter her account at a meeting held before she testified in relation to the fresh evidence.  Biron J.A. was also of the view that the weakness of the statement made in 1990 was exacerbated by the fact that the person who made it had stated that the victim was wearing a black coat, while the evidence had established that she was actually wearing a blue-jean jacket.  Moreover, he pointed out that the statement by this witness cannot be reconciled with the statements by other witnesses such as Anick Cloutier and Steve Fortier.  Anick Cloutier, for instance, who attended the dance with Isabelle Brouillette, said that she had not seen Sandra Gaudet there.  Moreover, Steve Fortier, the victim’s boyfriend, confirmed that he had spent the evening before the murder with the victim.  Biron J.A. concluded by adding that the statement made by Isabelle Brouillette [translation] “is a statement made by someone who is mistaken and could not be seen as anything else” (para. 88).

48                            In Biron J.A.’s opinion, the failure to disclose the statement by Guy Leblanc, the taxi driver who said he had seen the victim in a big brown vehicle at about midnight on the night of the murder, did not prejudice the appellant.  In his view, that statement was not only implausible, but was also contradicted by the testimony given by the dispatchers at the taxi office with whom he was in contact.  According to the testimony of those employees, Mr. Leblanc could not have been at the place in question at the time when he said he drove past the vehicle in which he said he saw Sandra Gaudet.

49                            Biron J.A. noted later that he found it [translation] “remarkable, if not incomprehensible” (para. 95) that the witnesses who stated that they had seen vehicles on the night of the murder other than Laurent Taillefer’s at the location where the victim’s body was buried did not testify in relation to the fresh evidence.  Biron J.A. accordingly assumed that their testimony was of no assistance to the defence.  He further expressed the opinion that those statements did not disclose anything of any significance.  The appellant was aware of the existence of the statements, disclosure of which he had been denied in the past.  Nonetheless, he had agreed to plead guilty, at a time when he had the assistance of counsel, without again requesting disclosure of them.  Biron J.A. was also of the view that the statements made by André Caouette, Isabelle Martel, Juan Caruncho and Ghyslaine Pomerleau could not have changed the verdict or influenced the appellant’s decision to admit his guilt.

50                            Biron J.A. concluded that he [translation] “could not reasonably believe”, after “a thorough examination of the evidence”, that “the fresh evidence, together with the other evidence introduced at trial, would have affected the result, assuming that all the evidence that could have been introduced at the first trial is now in the record” (para. 115).  He was also of the opinion, “taking into account also the cumulative effect of the evidence that was not disclosed, that the failure to disclose did not affect the outcome or the overall fairness of the first trial, or the appellant’s decision to plead guilty in 1995” (para. 116).  Because of those conclusions, withdrawal of the guilty plea was not warranted and the appellant Duguay’s appeal had to be dismissed.

B.     The Appellant Taillefer’s Case, [2001] Q.J. No. 3975 (QL)

51                            Like Biron J.A. in the case of the appellant Duguay, Beauregard J.A. analyzed the new evidence item by item.  Having completed that analysis, he concluded that none of that evidence could reasonably have changed the result of the trial, and that as a result the application for review of the appellant Taillefer’s trial had to fail.

52                            Beauregard J.A. first examined the fresh evidence relating to the incriminating statement made by the appellant to the police at the time he was arrested.  He acknowledged the discrepancies between the notes taken by the coordinators, Cossette and Pelletier, during the interrogations and the testimony given by officer Charette at trial.  He also acknowledged that he doubted the veracity of certain parts of that officer’s testimony.  Nonetheless, the failure to disclose the notes made by the investigating officer Cossette and Lieut. Pelletier did not, in his opinion, affect the fairness of the trial.  Nor could it reasonably be thought that the verdict might have been different if that information had been available.  In Beauregard J.A.’s opinion, no jury could reasonably conclude that the appellant had signed an incriminating statement because he had been beaten or been put into such a condition that it was not possible for him to engage in a free and voluntary act.

53                            Beauregard J.A. then held that the failure to disclose the statements of the witnesses who said they had seen vehicles other than Laurent Taillefer’s during the night of the murder near the place where the victim’s body was buried could not reasonably have had an impact on the verdict.  In his opinion, the determination of the identity of the vehicle that had been near the place where the victim’s body was buried had directed the investigation toward Billy Taillefer and Hugues Duguay, and had then led to the discovery of all the other circumstantial evidence.  That connection, between the discovery of the identity of the vehicle and the discovery of the considerable body of other evidence that made up the prosecution evidence, tended to confirm the accuracy of the statement given by Donald and Carl Saint-Pierre at trial.

54                            Beauregard J.A. reached a similar conclusion when he found that the statements made by Isabelle Martel, Juan Caruncho, Ghyslaine Pomerleau and André Caouette would have had no effect.  With respect to Caouette’s statement, he noted that he could not imagine what prejudice could have flowed from the failure to disclose a statement the existence of which had been known since the preliminary inquiry.  Beauregard J.A. then said that the inconsistencies identified in the statements given by Dr. Dorion were simply a [translation] “tempest in a teapot” (para. 81).  In his opinion, those inconsistencies did not destroy the value of the dentist’s testimony.  Then, commenting on the statement by the taxi driver, Guy Leblanc, Beauregard J.A. added that the jury’s verdict would have been the same even if that statement had been disclosed.  In his opinion, the implausible statement by Mr. Leblanc was, moreover, contradicted by the testimony of his taxi office dispatcher, and by various other items of circumstantial evidence.  He ended by concluding that the statement made by Isabelle Brouillette, that she had met the victim at a dance during the evening of the murder, was weak; that statement conflicted with the testimony given by Steve Fortier and his mother and uncle, all of whom were credible individuals.  In his view, even if Isabelle Brouillette had been called to testify at trial, the verdict would not have changed.

55                            In the opinion of Beauregard J.A., the Crown’s failure to disclose several items of evidence also did not affect the appellant’s strategy at his trial.  He was of the view as well that [translation] “if the appellant had been aware of the evidence that he did not know about, it cannot reasonably be thought that it is possible that the verdict would have been different” (para. 110).  Moreover, the fresh evidence did not have the necessary probative value to justify quashing the verdict and holding a new trial.  Accordingly, citing the principles set out by this Court regarding the admission of fresh evidence in R. v. Stolar, [1988] 1 S.C.R. 480, he found that the fresh evidence was not admissible and dismissed the application for review of the trial.

IV.  Relevant Statutory Provisions

56                            Canadian Charter of Rights and Freedoms 

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.

Criminal Code , R.S.C. 1985, c. C-46 

690.  The Minister of Justice may, on an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment or who has been sentenced to preventive detention under Part XXIV,

(a)  direct, by order in writing, a new trial or, in the case of a person under sentence of preventive detention, a new hearing, before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed;

(b)  refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person under sentence of preventive detention, as the case may be; or

(c)  refer to the court of appeal at any time, for its opinion, any question on which he desires the assistance of that court, and the court shall furnish its opinion accordingly.

(This provision has been repealed: S.C. 2002, c. 13, s. 70.)

V.  Issues

57                            These appeals deal with the Crown’s duty to disclose evidence and the consequences of breach of that duty.  We must first determine the extent of the applicable duty of disclosure and whether the Crown breached that duty in this case.  The procedure to be followed on appeal for assessing fresh evidence introduced as a result of the Crown’s breach of its duty of disclosure must then be specified.  This part of the analysis will call for an examination of the principles laid down by this Court in Dixon, supra, and the prerequisites for those principles to apply.

58                            If the appellants’ constitutional rights have been infringed, the final step will be to determine the nature of the appropriate and just remedy for each of the appellants.  After examining the seriousness of the infringement and the circumstances that are common to these two appeals, as well as the aspects that are unique to each of them, we will have to decide, inter alia, whether it is necessary for a new trial to be held or whether the appropriate remedy would be a stay of proceedings.

VI.  Analysis

A.     The Infringement of the Appellants’ Constitutional Rights

(1)    Compliance With the Crown’s Duty to Disclose Evidence

59                            After a period during which the rules governing the Crown’s duty to disclose evidence were gradually developed by the provincial appeal courts in recent decades, those rules were clarified and consolidated by this Court in Stinchcombe.  The rules may be summarized in a few statements.  The Crown must disclose all relevant information to the accused, whether inculpatory or exculpatory, subject to the exercise of the Crown’s discretion to refuse to disclose information that is privileged or plainly irrelevant.  Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences.  The relevant information must be disclosed whether or not the Crown intends to introduce it in evidence, before election or plea (p. 343).  Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses (p. 345).  This Court has also defined the concept of “relevance” broadly, in R. v. Egger, [1993] 2 S.C.R. 451, at p. 467:

One measure of the relevance of information in the Crown’s hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed — Stinchcombe, supra, at p. 345.  This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.

60                            As the courts have defined it, the concept of relevance favours the disclosure of evidence.  Little information will be exempt from the duty that is imposed on the prosecution to disclose evidence.  As this Court said in Dixon, supra, “the threshold requirement for disclosure is set quite low. . . .  The Crown’s duty to disclose is therefore triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence” (para. 21; see also R. v. Chaplin, [1995] 1 S.C.R. 727, at paras. 26-27).  “While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant” (Stinchcombe, supra, at p. 339).

61                            This right is a constitutional one.  It is protected by s. 7  of the Charter , and helps to guarantee the accused’s ability to exercise the right to make full answer and defence (see R. v. Carosella, [1997] 1 S.C.R. 80, at para. 37; Dixon, supra, at para. 22).  As Cory J., speaking for this Court, wrote in Dixon, at para. 22:

. . . where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has also established the impairment of his Charter  right to disclosure.  [Emphasis in original.]

62                            In this case, as the respondent agrees, the information not disclosed by the police or by the Crown attorney responsible for the conduct of the prosecutions met the threshold requirement stated in Stinchcombe.  I shall discuss the content and potential usefulness of the undisclosed evidence in detail when I consider whether the appellants’ right to make full answer and defence was infringed.  For the moment, suffice it to say that the prior statements of certain witnesses could have been used to impeach the credibility of their testimony at trial.  Some undisclosed statements could have been used to cast doubt on the credibility of the Crown’s theory concerning the events that occurred during the night of the murder.  In addition, they might have supported the alibi defence presented by the appellants.  The timely disclosure of certain evidence would also have made it possible to discover and explore new avenues of investigation.  Accordingly, under the current rules governing the disclosure of evidence, the information that makes up the fresh evidence should have been disclosed to the appellants.

63                            In the respondent’s submission, however, we must then identify the principles that govern the Crown’s duty to disclose and are applicable to these cases, having regard to the fact that the jury’s verdict was rendered on February 1, 1991, that is, several months before this Court handed down its decision in Stinchcombe.  The Crown contends that we cannot rely on the principles stated in that decision to conclude that the duty of disclosure was breached in this case, because of the uncertainty in the law relating to the disclosure of evidence prior to that decision.  In the Crown’s submission, it retained a complete discretion, at that time, as to whether or not to disclose its evidence.  At the very least, the fact that there was no authoritative judgment of the Supreme Court should influence the assessment of the gravity of the breach of the accuseds’ constitutional rights as well as the determination of the nature of the appropriate remedy.

64                            In my view, the respondent is wrong.  Notwithstanding the fact that there may have been disagreements during the development of the law relating to the Crown’s duty to disclose before the decision in Stinchcombe, a number of appeal courts had acknowledged that the Crown did have a duty to disclose all relevant evidence to the defence, whether favourable to the accused or not.  That duty, which was indeed reinvigorated by the adoption of the Charter , had already been recognized at common law as a component of the accused’s right to a fair trial and to make full answer and defence.

65                            In particular, in R. v. C. (M.H.), [1991] 1 S.C.R. 763, which was decided a few months before Stinchcombe, this Court had defined the parameters of the duty to disclose evidence that the Crown was under at common law.  McLachlin J. (as she then was), writing for the Court, had observed that the Crown’s common law duty to disclose to the defence “all material evidence whether favourable to the accused or not” had repeatedly been recognized by this Court (p. 774).  In support of her opinion, she cited Lemay v. The King, [1952] 1 S.C.R. 232, Duke v. The Queen, [1972] S.C.R. 917, and Caccamo v. The Queen, [1976] 1 S.C.R. 786.  She had stressed the potential importance of a breach of that duty to the overall fairness of a criminal trial (at pp. 774-75):

It is not necessary on the facts of this case to establish the exact ambit of the Crown’s duty of disclosure.  It is sufficient to note that failure to disclose may constitute grounds for appeal where it results in an unfair trial. As Spence J. observed in his reasons in Caccamo (dissenting on another ground, Laskin C.J. concurring), courts must not hesitate to interfere where conduct of the Crown suggests there was unfairness at trial, at p. 796:

In my view, it is the duty of the court to be vigilant to assure itself that the appellant has had a fair trial and if the regrettable conduct of the prosecution, using that term to cover both the police and Crown counsel, ever results in unfairness then the court should act with decisiveness to reverse such unfairness.

In my view, the failure of the Crown in this case to disclose either the statement or the existence of the potential witness created such prejudice against the appellant that it cannot be said with certainty that he received a fair trial.

66                            The existence and importance of the duty to disclose had also been recognized by a number of appeal courts, including the Quebec Court of Appeal.  For example, in Taillefer v. La Reine, [1989] R.J.Q. 2023, the accused alleged that the Crown had not disclosed its intention to introduce the incriminating statements he had made to the police within a reasonable time, thereby depriving him of the right to make full answer and defence.  After reviewing the law applicable to the disclosure of evidence, I had summarized the law as it then stood, as follows (at p. 2032):

[translation]  The decisions cited supra are part of a line of cases which establishes that, at present, the Crown has a duty to disclose the statements by the accused, as evidence whether favourable or unfavourable to the accused, in a timely manner.  It also concludes that there is a judicial power to order disclosure of such evidence, if it is requested sincerely, for the purpose of preparing a defence, and appears to be useful for that purpose.

See also R. v. Savion (1980), 52 C.C.C. (2d) 276 (Ont. C.A.); Re Cunliffe and Law Society of British Columbia (1984), 11 D.L.R. (4th) 280 (B.C.C.A.); Re Regina and Arviv (1985), 19 C.C.C. (3d) 395 (Ont. C.A.); R. v. Bourget (1987), 35 C.C.C. (3d) 371 (Sask. C.A.).

67                            In fact, the reasons of Biron J.A. in the appellant Duguay’s case recognize that the duty to disclose had emerged before the decision in Stinchcombe (at para. 38):

[translation]  Prior to Stinchcombe, the law that applied to the Crown’s duty to disclose was not devoid of uncertainty.  Although that decision was rendered after the verdict in this case, we must nonetheless accept that the duty to disclose was pre-existing and was triggered whenever there was a reasonable possibility of the information being useful to the accused in making full answer and defence.

68                            In addition, the prosecution’s duty to disclose to the defence all relevant evidence arises naturally from the Crown attorney’s role as an officer of the court in our criminal justice system.  Rand J. described that role as follows in Boucher v. The Queen, [1955] S.C.R. 16, at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.  Counsel have a duty to see that all available legal proof of the facts is presented:  it should be done firmly and pressed to its legitimate strength but it must also be done fairly.  The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.  It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

69                            The connection between the duty to disclose and the duties inherent in the functions of the Crown was stressed more recently by L’Heureux‑Dubé J., writing for the majority, in R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 101:

Though the obligation on the Crown to disclose has found renewed vigour since the advent of the Charter , in particular s. 7, this obligation is not contingent upon there first being established any violation of the Charter .  Rather, full and fair disclosure is a fundamental aspect of the Crown’s duty to serve the Court as a faithful public agent, entrusted not with winning or losing trials but rather with seeing that justice is served: Stinchcombe, supra, at p. 333.

70                            The Crown cannot rely on uncertainties in the law relating to the disclosure of evidence to justify the failure to disclose for which it is the focus of criticism in this case.  A review of the case law confirmed that the duty already existed prior to Stinchcombe.  Having regard to the substantial amount of evidence that was not disclosed, and to the extremely relevant nature of that evidence, of which the prosecution could not have been unaware, it must be acknowledged that the appellants were the victims of a serious infringement of their right to disclosure of evidence.  We must now examine the impact of that infringement on the exercise of the appellants’ constitutional right to make full answer and defence.

(2)    The Infringement of the Right to Make Full Answer and Defence

71                            As this Court said in Dixon, the right to disclosure is just one of the components of the right to make full answer and defence.  Infringement of that right is not always an infringement of the right to make full answer and defence.  There are situations in which the information not disclosed will meet the minimum test set out in Stinchcombe while having only marginal value to the issues at trial (Dixon, supra, at paras. 23-30).  To determine whether there is an infringement of the right to make full answer and defence, the accused will have to show that there was a reasonable possibility that the failure to disclose affected the outcome at trial or the overall fairness of the trial process (Dixon, supra, at para. 34).

72                            I will first define the legal framework for determining whether there has been an infringement of the right to make full answer and defence, in the context of an infringement of the right to disclosure of evidence.  Having regard to the applicable principles, I will then identify the errors made by the Court of Appeal in assessing the fresh evidence filed in the appellants’ cases.

(a)    Applicable Principles for Determining Whether There Has Been an Infringement of the Right to Make Full Answer and Defence

73                            I believe that it is worthwhile, first, to dispose of a disagreement between the parties concerning the burden that rests on an accused who intends to establish that his or her right to make full answer and defence has been infringed in the context of a breach of the duty to disclose evidence.  More specifically, the parties disagree on whether the test laid down by this Court in Palmer, for determining the admissibility of fresh evidence on appeal, applies where the Crown has breached its duty of disclosure, or whether the rules that apply in that situation were in fact exhaustively stated in Dixon.

74                            In Palmer, this Court had to decide whether a decision of the British Columbia Court of Appeal, which denied leave to introduce fresh evidence that was unknown to the parties at the time of the trial, was correct.  The Crown’s duty to disclose was not in issue at all.  On that occasion, this Court laid down four principles governing the admissibility of fresh evidence on appeal (at p. 775):

(1)    The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases:  see McMartin v. The Queen [[1964] S.C.R. 484].

(2)    The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3)    The evidence must be credible in the sense that it is reasonably capable of belief, and

(4)    It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.  [Emphasis added.]

75                            There followed the judgments of several appeal courts concluding that the test set out in Palmer does not apply to the admission of fresh evidence in the context of a breach by the Crown of its duty to disclose.  As Donald J.A. of the British Columbia Court of Appeal stated in R. v. Creamer (1995), 97 C.C.C. (3d) 108, at paras. 23 and 25, there is a fundamental difference between the two types of situations:

For fresh evidence to be admitted under Palmer, supra, it must “be expected to have affected the result”; while evidence withheld by the Crown which “might have affected the outcome” is sufficient to require a new trial.  In my view, the difference is significant.  It reflects the difficulty in ascertaining with any precision how the trial would have gone if the defence had the relevant information.

. . .

I think that the Palmer test must be modified when the fresh evidence sought to be entered on an appeal relates to non-disclosure of relevant information.  The test to be applied should be whether the right to a fair trial may have been affected.

(See also R. v. McQuaid (Dixon Appeal), [1997] N.S.J. No. 20 (QL) (C.A.), at para. 22; R. v. Jarema (1996), 43 Alta. L.R. (3d) 345 (C.A.), at para. 24; R. v. Peterson (1996), 106 C.C.C. (3d) 64 (Ont. C.A.), at pp. 79-80; contra: R. v. Pottie (1996), 150 N.S.R. (2d) 56 (C.A.), at paras. 47-48.)

76                            This line of cases holds that the test laid down in Palmer does not apply when the validity of the trial itself is in issue.  That opinion may be seen in the reasons of Rothman J.A. of the Quebec Court of Appeal in Comtois-Barbeau v. La Reine, [1996] R.J.Q. 1127, at p. 1133:

While acknowledging that the discretion granted to the Court of Appeal under section 683(1)(d) is broad, the crown contends that the new evidence tendered in this case should not be received because it does not meet the criteria set out by the Supreme Court of Canada in Palmer c. R.

But, with respect, the criteria required in Palmer for the admission of new evidence on appeal relate to new evidence that is tendered to establish a factual or legal determination made at trial.  These criteria do not apply where the purpose of the new evidence is to challenge the very validity of the trial process.  The new evidence that appellant seeks to have admitted in this appeal is not evidence that relates to an issue decided at trial. It is new evidence required to establish a ground of appeal which puts in question the trial process itself.

(See also R. v. W. (W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at pp. 232-33.)

77                            In my opinion, those decisions correctly state the law in this area.  The principles that apply to the admission of fresh evidence discovered after the Crown’s breach of its duty to disclose were clearly established by this Court in Dixon.  Those criteria are substantially different from those defined in Palmer and are not interchangeable.  First, the fourth component of the Palmer test relates only to the impact of the fresh evidence on the result of the trial.  The Dixon test is much more flexible, and requires not only that the impact of the fresh evidence on the result of the trial be assessed, but also that the impact of the failure to disclose on the overall fairness of the trial be assessed.

78                            In addition, the burden on the party seeking to have fresh evidence admitted is more stringent under the Palmer test than under the Dixon test.  In the latter case, this Court held that an accused seeking to have fresh evidence admitted by alleging a breach of his or her right to disclosure must demonstrate that there is a reasonable possibility the non‑disclosure affected the outcome at trial or the overall fairness of the trial process (Dixon, supra, at para. 34).  The mere existence of such a possibility constitutes an infringement of the right to make full answer and defence.  In Palmer, this Court required, instead, that the new evidence “must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result” (Palmer, supra, p. 775 (emphasis added)).  The English version of McIntyre J.’s reasons uses words that denote an even more exacting standard than the French version, which states that the fresh evidence “doit être telle que si l’on y ajoute foi, on puisse raisonnablement penser qu’avec les autres éléments de preuve produits au procès, elle aurait influé sur le résultat”.  That test is more exacting than the mere reasonable possibility test: it assigns the applicant the burden of showing that the failure to disclose probably affected the result of the trial.  Having regard to the difficulties involved in reconstituting a trial, this Court did not wish to impose such a high burden on an accused seeking to have fresh evidence admitted, where the accused was deprived of that evidence because of a breach by the Crown of its duty to disclose.

79                            I would note that in C. (M.H.), supra, which related to a breach by the Crown of its duty to disclose, this Court applied the Palmer test to rule on the admissibility of fresh evidence (p. 776).  However, that decision was made before this Court had clarified the law on this point in Dixon.  In my opinion, the principles set out in the latter decision applied from that time onward, and there was no need to look to the principles governing the admissibility of fresh evidence before a court of appeal in other contexts.  The aim of the analysis of the legal situation is to determine the impact of the new evidence both on the verdict and on the conduct of the trial.  Adopting this method reflects the concern that the overall fairness of the criminal proceedings against the accused be preserved.

80                            In Dixon, at para. 36, this Court defined as follows the principles that apply to determining whether the right to make full answer and defence has been infringed, first with respect to the verdict, and then as regards the actual fairness of the trial:

First, in order to assess the reliability of the result, the undisclosed information must be examined to determine the impact it might have had on the decision to convict.  Obviously this will be an easier task if the accused was tried before a judge alone, and reasons were given for the conviction.  If at the first stage an appellate court is persuaded that there is a reasonable possibility that, on its face, the undisclosed information affects the reliability of the conviction, a new trial should be ordered.  Even if the undisclosed information does not itself affect the reliability of the result at trial, the effect of the non‑disclosure on the overall fairness of the trial process must be considered at the second stage of analysis.  This will be done by assessing, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if the relevant information had been disclosed.  In short, the reasonable possibility that the undisclosed information impaired the right to make full answer and defence relates not only to the content of the information itself, but also to the realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence.  [First and third emphasis added; second and fourth emphasis in original.]

81                            Dixon thus sets out a two-step test.  To assess the reliability of the result of the trial, “the undisclosed information must be examined to determine the impact it might have had on the decision to convict” (para. 36).  As this Court held, the exercise is a difficult one when, as in this case, the verdict was rendered by a jury (paras. 31‑36).  The fact that jury deliberations are secret makes it impossible to identify the evidence that was the determinating factor in the decision to find an accused guilty.  Two comments are necessary on this point.  First, the onus is on the accused to demonstrate that there is a reasonable possibility that the verdict might have been different but for the Crown’s failure to disclose all of the relevant evidence.  The accused therefore does not have the heavy burden of demonstrating that it is probable or certain that the fresh evidence would have affected the verdict (Jarema, supra, at paras. 18 et seq.; Stinchcombe, supra, at p. 348).  As this Court held in Dixon: “[i]mposing a test based on a reasonable possibility strikes a fair balance between an accused’s interest in a fair trial and the public’s interest in the efficient administration of justice.  It recognizes the difficulty of reconstructing accurately the trial process, and avoids the undesirable effect of undermining the Crown’s disclosure obligations” (para. 34).

82                            Second, applying this test requires that the appellate court determine that there was a reasonable possibility that the jury, with the benefit of all of the relevant evidence, might have had a reasonable doubt as to the accused’s guilt.  The aim is therefore not to examine the undisclosed evidence, item by item, to assess its probative value; that is the role assigned to the trier of fact.  Rather, an effort must be made to reconstruct the overall picture of the evidence that would have been presented to the jury had it not been for the Crown’s failure to disclose the relevant evidence.  Whether there is a reasonable possibility that the verdict might have been different must be determined having regard to the evidence in its entirety.

83                            A negative answer at the first stage does not bring the analysis to a close.  The appellate court must then inquire as to whether there is a reasonable possibility that the failure to disclose affected the overall fairness of the trial process.  Prior to Dixon, the courts had been strongly inclined to analyze the infringement of the right to make full answer and defence solely through the prism of the reasonably possible impact of the fresh evidence on the result of the trial process (see, inter alia, C. (M.H.), supra, at pp. 776-77; R. v. Antinello (1995), 97 C.C.C. (3d) 126 (Alta. C.A.), at p. 134; R. v. Hamilton (1994), 94 C.C.C. (3d) 12 (Sask. C.A.), at p. 34; Jarema, supra, at para. 24; McQuaid (Dixon Appeal), supra, at paras. 98-99; R. v. Santocono (1996), 91 O.A.C. 26 (C.A.), at p. 32; Stinchcombe, supra, at p. 348).  Dixon, however, clearly established that the determination of whether there exists a reasonable possibility that the fresh evidence would have an impact on the result of the trial process should be dealt with as a separate issue from the assessment of the effect of the failure to disclose on the overall fairness of the trial.  It will not be enough to determine whether the right to make full answer and defence has been infringed having regard solely to the nature of the fresh evidence.  The potential usefulness of that evidence to the defence will also have to be considered.

84                            The reasonable possibility of affecting the overall fairness of the trial “must be based on reasonably possible uses of the non‑disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non‑disclosure” (Dixon, supra, at para. 34 (emphasis in original)).  Here again, the appellate court must not assess the possible uses of the fresh evidence based on an item-by-item analysis of the probative value of the evidence.  It must ascertain whether the failure to disclose deprived the accused of certain evidential or investigative resources.  That would be the case, for example, if the undisclosed statement of a witness could reasonably have been used to impeach the credibility of a prosecution witness.  The conclusion would necessarily be the same if the prosecution fails to disclose to the defence that there is a witness who could have led to the timely discovery of other witnesses who were useful to the defence.

(b)    The Specific Case of Infringement of the Right to Make Full Answer and Defence Where the Accused Seeks to Withdraw His or Her Guilty Plea

85                            The appellant Duguay’s case presents an additional difficulty.  It requires that this Court identify the test that applies when an accused seeks to withdraw his or her guilty plea on the ground of the discovery of fresh evidence that was not disclosed by the prosecution.  In Adgey, supra, this Court held that an accused may change his plea if he is able to persuade the appellate court “that there are valid grounds for his being permitted to do so” (p. 431).  This Court, however, did not think it appropriate to exhaustively define the grounds that could justify withdrawing a guilty plea.  Nonetheless, in R. v. T. (R.) (1992), 10 O.R. (3d) 514, Doherty J.A. of the Ontario Court of Appeal reiterated the requirements that must be met in order for a guilty plea to be valid, as follows, pointing out that the plea must be voluntary and unequivocal, and based on sufficient information concerning the nature of the charges against the accused and the consequences for the accused of a guilty plea (at p. 519):

To constitute a valid guilty plea, the plea must be voluntary and unequivocal.  The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea.

(See also Lyons, supra, at p. 371.)

86                            However, even if the requirements for validity are met, a guilty plea may be withdrawn in the event that the accused’s constitutional rights were infringed.  Those rights cannot be ignored in assessing the accused’s legal situation.  The purpose of the duty to disclose is, inter alia, to ensure that the decision concerning the accused is made with full knowledge of the relevant facts, this being also a prerequisite to the validity of the plea.  In Stinchcombe, supra, at pp. 342-43, this Court in fact held that disclosure of evidence must take place before the accused is asked to elect a mode of trial or enter a plea:

. . . initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead.  These are crucial steps which the accused must take which affect his or her rights in a fundamental way.  It will be of great assistance to the accused to know what are the strengths and weaknesses of the Crown’s case before committing on these issues.

87                            The question of the impact of the infringement of the accused’s constitutional rights on the validity of a guilty plea was considered in T. (R.), supra.  One of the charges levelled at the Crown was that it had breached its duty to disclose all of the relevant evidence prior to the guilty plea being entered.  As Doherty J.A. observed at pp. 526-27, an infringement of an accused’s constitutional rights may be so serious that it justifies withdrawing a guilty plea that is otherwise valid and appropriate in other respects:

Was the appellant denied his constitutional rights during the proceedings?

Even if a guilty plea is valid and the factual inquiry into the charge reveals no basis for refusing to enter a conviction, the proceedings may be so flawed as to result in a reversible error of law or a miscarriage of justice. For example, a denial of an accused’s constitutional rights during the proceedings could require reversal even when the pleas and convictions were otherwise valid and appropriate.

88                            A little later, Doherty J.A. observed that the breach of the duty to disclose can impact on the validity of a guilty plea, where it affects the accused’s right to make full answer and defence or affects the basis of the accused’s decision to admit guilt (at p. 529):

Assuming Stinchcombe required the disclosure argued for by the appellant, the non-disclosure could impact on the appellant’s right to make full answer and defence if the material that was not disclosed could have had some effect on the appellant’s decision to plead guilty, or if the undisclosed material undermined the validity of the pleas or the propriety of the convictions.

89                            In Jarema, supra, the Alberta Court of Appeal had to examine precisely that question: the validity of a guilty plea in the context of the Crown’s breach of its duty to disclose.  The court stated the test applicable in such a situation involving the actual decision to plead guilty, when assessed within the entire context of the case, as follows (at para. 24):

The Crown in this case did fail to disclose some information which it ought to have disclosed.  The Crown concedes this fact.  The question is whether the accused has met the most favourable possible test for him. That is a reasonable possibility that this non-disclosure impaired his right to full answer and defence.  From the perspective of an appellate court, this in turn requires an assessment of materiality, by asking whether there is a reasonable possibility that the outcome of the trial would have been different if the information had been disclosed.  In the context of a guilty plea by the accused, this materiality question must be modified slightly: the Court must evaluate whether there is a reasonable possibility either that the accused’s choice to plead guilty would have been different, or that the undisclosed information undermines the validity of the guilty pleas: see R. v. T. (R.) (1992), 17 C.R. (4th) 247 at 262 (Ont. C.A.). [Emphasis in original.]

90                            In my opinion, those decisions adopt an accurate statement of the Dixon test, adapted to the context of the impact of the breach of the duty to disclose on the validity of a guilty plea.  In the context of a guilty plea, the two separate steps in the analysis required by Dixon must be merged, however.  In that situation, it is impossible to separate them, because the entire analysis of the breach must bear on the accused’s decision to enter the guilty plea that he or she now wishes to be allowed to withdraw.  The accused must demonstrate that there is a reasonable possibility that the fresh evidence would have influenced his or her decision to plead guilty, if it had been available before the guilty plea was entered.  However, the test is still objective in nature.  The question is not whether the accused would actually have declined to plead guilty, but rather whether a reasonable and properly informed person, put in the same situation, would have run the risk of standing trial if he or she had had timely knowledge of the undisclosed evidence, when it is assessed together with all of the evidence already known.  Thus the impact of the unknown evidence on the accused’s decision to admit guilt must be assessed.  If that analysis can lead to the conclusion that there was a realistic possibility that the accused would have run the risk of a trial, if he or she had been in possession of that information or those new avenues of investigation, leave must be given to withdraw the plea.

(3)    The Errors Made by the Court of Appeal in Respect of the Infringement of the Right to Make Full Answer and Defence

91                            The Court of Appeal made several important errors in applying the Dixon principles in the context of the appellants’ appeals.  A fundamental methodological error was made when it undertook to analyse the fresh evidence by breaking it down or addressing its individual parts, rather than analyzing the fresh evidence as a whole in order to assess its impact on the process.  Using this method prompted it to apply a more exacting test to the assessment of the impact of the fresh evidence than the “reasonable possibility” test.  Second, there were further errors in its assessment of the impact of the failure to disclose on the overall fairness of the appellant Taillefer’s trial and on the appellant Duguay’s decision to plead guilty.

(a)    The Error Resulting from Analysing the Evidence in Its Individual Parts Rather Than as a Whole

92                            Dixon requires, in assessing the impact of the fresh evidence on the result or fairness of the trial process, that a general picture be constructed of the evidence as it would have been presented at trial, had it not been for the Crown’s breach of its duty to disclose.  As I described earlier, the Court of Appeal instead analyzed the individual parts of the fresh evidence in order to determine whether each of them was credible and what their respective probative value was.  That exercise, which is actually a function of the trier of fact, vitiated its entire analysis.

93                            The Dixon test requires a determination of whether there is a reasonable possibility that the jury would have come to a different verdict if they had had knowledge of all of the relevant evidence.  The analytical method followed by both Beauregard J.A. in the appellant Taillefer’s case and Biron J.A. in the appellant Duguay’s case does not achieve the underlying objective of the Dixon test: to assess the cumulative effect of the evidence in the jury’s mind.  The Court of Appeal compared the new evidence, item by item, to the evidence introduced at trial, taking that latter evidence as a given, and asking in each instance whether the evidence in question confirmed or disproved the evidence presented at trial.  In so doing, it was not engaging in the real exercise of reconstructing the trial, as recommended by this Court in Dixon.  On this point, it is worth citing the comments made by the Alberta Court of Appeal in Jarema, at para. 33, which stress the need for the cumulative effects of the undisclosed evidence to be assessed:

Although none of the non-disclosed pieces of information appears to be sufficiently material to show that the accused’s right to full answer and defence was prejudiced, the Court should consider whether there is a reasonable possibility that the cumulative effect of the non-disclosed items affected the appellant’s decision to plead guilty.

94                            I agree with the respondent that applying the Dixon test calls for the Court of Appeal to assess the substance of the fresh evidence:  “reasonable possibility” must be based “on reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure” (Dixon, supra, at para. 34 (emphasis in original)).  However, flexibility must be employed in interpreting that test, and regard must be had for the difficulties inherent in reconstructing a trial, particularly where the trial was held before a jury.

95                            In this case, in the event that the jury had not been deprived of the undisclosed evidence, the overall picture of the trial would have been very different.  First, the credibility of certain prosecution witnesses could have been undermined using the witness statements whose existence was not disclosed to the defence.  We could imagine that there might have been testimony from numerous drivers that would have contradicted the testimony given by Donald and Carl Saint-Pierre concerning the identity of the vehicle they saw on the night of the murder near the place where the victim’s body was buried.  Second, the jury would have been offered a theory different from the Crown’s concerning the events that took place during the night of the murder.  For example, the statements of Isabelle Brouillette and Guy Leblanc directly contradicted the prosecution theory that the victim had been near the home of Laurent Taillefer at about midnight on the night of the murder.

96                            Moreover, by examining each part of the fresh evidence on its own and comparing those parts to the evidence produced at trial, the Court of Appeal applied a more exacting standard than “reasonable possibility”.  It seems, instead, to have tried to determine whether the fresh evidence would actually have changed the verdict.  On the contrary, the principle in Dixon is that an appellate court must in fact ask whether there is a reasonable possibility that the verdict would have been different if all of the relevant evidence had been disclosed, but should not ask whether the verdict would actually have been different.

97                            Having examined the reasons of the Court of Appeal in the appellants’ cases, I am satisfied that a more stringent test than “reasonable possibility” was applied.  For example, when Beauregard J.A. determined the impact of the statement by Guy Leblanc, the taxi driver, on the result of the appellant Taillefer’s trial, he said that [translation] “having regard to the other circumstantial evidence which made Mr. Leblanc’s statement implausible, I am of the opinion that, even if he had testified to what was in the statement, the jury’s verdict would have been the same” (para. 91 (emphasis added)).  He used the same test in assessing the impact of Isabelle Brouillette’s testimony (para. 97).  Although there are other passages that might suggest that the Court of Appeal applied the appropriate standard of reasonable possibility (see for example at paras. 29 and 110 of Beauregard J.A.’s decision), it is generally plain from that opinion that the Court of Appeal asked itself whether each part of the evidence could, alone, have erased any reasonable doubt from the jury’s mind.  Biron J.A. made the same error in the appellant Duguay’s case.  Thus, after completing his analysis of the fresh evidence relating to the prior statement made by Dr. Dorion, the judge commented that he saw nothing in that evidence that could have changed the result (para. 79).  Similar conclusions were stated in respect of the statements by Isabelle Martel and Juan Caruncho (paras. 104 and 108).  Accordingly, in my view the Court of Appeal wrongly applied the first part of the test laid down by this Court in Dixon.

(b)    The Errors Relating to the Impact of the Infringement of the Right to Disclosure on the Overall Fairness of the Trial

98                            We must now examine the problem of the impact of the fresh evidence on the proceedings that led to the convictions of the appellants.  On this issue, the Court of Appeal erred in its assessment of the effect of the failure to disclose on the overall fairness of the appellant Taillefer’s trial and the overall fairness of the process that led to the appellant Duguay’s decision to enter a guilty plea.

(i)     The Impact of the Infringement of the Right to Disclosure on the Overall Fairness of the Appellant Taillefer’s Trial

99                            As noted earlier, the method of analysis prescribed by Dixon consists of two separate steps.  The first involves assessing the impact of the fresh evidence on the result of the trial.  The second requires that the appellate court assess the impact of the fresh evidence on the overall fairness of the trial.  Thus the infringement of the accused’s right to make full answer and defence may arise from a reasonable possibility that the failure to disclose had an impact on the overall fairness of the trial, even if it cannot be concluded that the verdict might have been different.  To measure the impact of the non-disclosure on the overall fairness of the trial, it must be asked what “realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence” were lost (Dixon, at para. 36 (emphasis in original)).  It does not seem, from the reasons of Beauregard J.A., that the impact of the fresh evidence on the overall fairness of the trial was even examined.  By reviewing the items of fresh evidence one by one, and comparing them to the evidence presented at trial, Beauregard J.A. assessed the potential impact of each piece of evidence on the jury’s verdict, without inquiring into the possible and realistic uses of that evidence by the defence.  In my opinion, had he done that, his conclusions would have been very different.  Several parts of the fresh evidence could have been used by the defence at trial, whether to impeach the credibility of certain witnesses and the credibility of the Crown’s theory or to gather new evidence.

100                        That was the case for the notes taken by Lieut. Pelletier and the investigating officer, Cossette, during the questioning of the appellant Taillefer.  As the Court of Appeal pointed out, one particularly important piece of evidence against the appellant consisted of the incriminating statement he made to the police on the night he was arrested.  At trial, the appellant contested the voluntariness of that statement.  According to his version of the facts, he was beaten by the police.  He also said that the incriminating statement was completely made up by the police and that he signed it out of fear.  Despite the fact that this defence was raised, the Court of Appeal failed to measure the impact of the non-disclosure of those notes on the fairness of the trial, by failing to consider the realistic possibility available to the accused of using the discrepancies between those notes and the police officers’ testimony at trial to impeach their credibility or to raise doubt as to whether his statement was given freely and voluntarily.

101                        Beauregard J.A. acknowledged that there were discrepancies between the notes taken by the coordinators Cossette and Pelletier and the testimony given by officers Charette and Leduc at trial (para. 15).  He also acknowledged that he still harboured doubts concerning the truthfulness of the evidence given by officer Charette, as may be seen in this passage from his opinion (at para. 19):

[translation]  But this does not explain why Charette said that everything that was said in front of him and Leduc was taken down in the form of questions and answers, nor does it explain why Charette said that the statement was signed at about 3:00 a.m.  I also have doubts as to the veracity of Charette’s testimony when he said that immediately after the appellant was arrested, in the police car, the appellant had already begun to give a confession and that he also said something incriminating in the interrogation room even before Charette and Leduc started to question him.

102                        However, he went on to comment on the impact of those discrepancies, as follows (at paras. 20, 23 and 29):

[translation]  Nonetheless, I am of the opinion that, even if a jury were in possession of Cossette’s and Pelletier’s notes, it could not reasonably conclude that the content of the appellant’s two out-of-court statements was invented by Charette and that the reason why the appellant signed the document containing an out-of-court statement was that he had been beaten, was afraid of being beaten again or was in a state in which he was unable to engage in a free and voluntary act.

                                                                   . . .

The discrepancy between Charette’s testimony and Cossette’s and Pelletier’s notes might perhaps affect the admissibility or probative value of the out-of-court statement if there was a connection between the discrepancy and the appellant’s argument.  However, there is no such connection; whether Charette made a mistake or lied about the fact that there were two statements does not obviate the fact that the appellant signed the document containing the admissions and the only questions that arise are whether the text of the statement signed by the appellant was invented by Charette and whether the appellant signed the statement as a result of mistreatment, fear of future mistreatment and battle-weariness.  On this point, the jury has already made its findings.

                                                                   . . .

In other words, the fact that the appellant was not in possession of Cossette’s and Pelletier’s notes did not affect the fairness of the trial; in addition, if the appellant had been in possession of those notes, it cannot reasonably be thought that it was possible that the verdict would have been different.

103                        These passages demonstrate that Beauregard J.A. did not properly apply the test of the reasonable possibility of an impairment of the overall fairness of the trial.  He asked only whether the jury would have believed the appellant’s version in the event that the notes taken by the coordinators Cossette and Pelletier had been disclosed to him.  He therefore relied on his own opinion as to the plausibility of the appellant’s account (paras. 20-21).  Rather than examining the possible uses of the undisclosed notes, Beauregard J.A. sought only to determine whether the disclosure of that piece of evidence would have changed the jury’s decision as to whether the accused’s statement was free and voluntary.  That is not the applicable test.  The mere reasonable possibility that the discrepancies between the notes of the coordinators Cossette and Pelletier and the testimony of the officers Charette and Leduc could be used to impeach the officers’ credibility, or to raise a doubt as to whether the accused’s statement was voluntary, is all that is needed for it to be possible to hold that there was a reasonable possibility that the failure to disclose impaired the overall fairness of the trial.

104                        The same error was made in respect of a number of other pieces of evidence.  That was the case for, inter alia, the statements of the drivers who said that during the night of the murder, they had seen vehicles whose description did not match the vehicle belonging to Laurent Taillefer near where the victim’s body was found.  The appellant says that he could have used those statements to cast doubt on the testimony given by the Saint-Pierres, on which the prosecution based its theory that the appellants used Laurent Taillefer’s vehicle to dispose of their victim’s body.  Beauregard J.A., however, concluded on this point that [translation] “[c]ertain statements more or less corroborate the testimony given by the Saint-Pierres; others do not seem relevant; and others eliminate the probative value of the testimony given by the Saint-Pierres regarding the make and colour of the vehicle” (para. 37).  He added later that “[w]hile the appellant has demonstrated that the statements by the car and truck drivers should have been disclosed to him, he has not demonstrated that those individuals would certainly have contributed something of value if the statements had been introduced before the jury and the prosecution had cross-examined on them” (para. 40).  Once again, Beauregard J.A. limited his consideration to an assessment of the content of the fresh evidence and its possible impact on the verdict.  Based on the actual findings he made concerning the inconsistency between some of those statements and the testimony given by the Saint-Pierres, Beauregard J.A. should have concluded, if he had properly applied the principles laid down in Dixon, that it would have been possible for the accused to use those statements to impeach the Saint-Pierres’ credibility.

105                        Beauregard J.A. was also of the opinion that the inconsistency between the testimony given by the dentist, Dr. Dorion, at trial and the statement he had made earlier to a police officer in support of an information to obtain a search warrant did not destroy the value of his testimony (para. 81).  Again, for the purposes of applying the Dixon test, in order to hold that the failure to disclose had a possible impact on the overall fairness of the trial, it would have been sufficient to find that there was a reasonable possibility that the accused could use the prior declaration by the expert witness to impeach his credibility.

106                        The same criticism applies to the analysis by the Court of Appeal of the impact of the statements by the taxi driver, Guy Leblanc, and by Isabelle Brouillette. With respect to the statement by Guy Leblanc, Beauregard J.A. held that because of the implausibility of that evidence, [translation] “the jury’s verdict would have been the same” (para. 91).  He came to the same conclusion regarding the statement by Isabelle Brouillette (para. 97).  The Court of Appeal was of course correct to raise doubts regarding the credibility of those statements.  However, I believe that it erred by failing to consider the possible use of those statements by the defence to discredit the prosecution theory and support the alibi defence.  It was up to the jury to assess the credibility of those witnesses.  In addition, the timely disclosure of the statement by Isabelle Brouillette might have enabled the defence to discover fresh evidence:  an investigation could have been conducted to ascertain whether other people had seen the victim at the dance where Isabelle Brouillette was on the night of the murder.

107                        In short, the Court of Appeal made a major error when it failed to assess the impact of the new evidence on the overall fairness of the trial.  As its conclusions show, the court restricted its analysis to the impact of the fresh evidence on the result of the trial process (para. 110).  I also believe that the appellant has succeeded in showing that it is reasonably possible that the new evidence would have had an impact on the overall fairness of the trial: the appellant Taillefer was deprived of a considerable amount of evidence that he could have used to impeach both the credibility of a number of witnesses and the prosecution theory.  In addition, the knowledge of that undisclosed evidence at the proper time would have opened the door to new avenues of investigation for the defence.  Accordingly, I find that the appellant’s constitutional right to make full answer and defence has been seriously infringed.

(ii)    The Impact of the Infringement of the Right to Disclosure on the Process That Led to the Appellant Duguay’s Decision to Plead Guilty

108                        In my opinion, the Court of Appeal erred again when it applied a subjective test in determining whether there was a reasonable possibility that the appellant Duguay would have decided not to stand trial again if he had known about the undisclosed evidence.  Although the Court of Appeal concluded that [translation] “the failure to disclose did not affect the outcome or the overall fairness of the first trial, or the appellant’s decision to plead guilty in 1995” (para. 116), it did not give any attention to the reasonable possibilities of using the fresh evidence that were available to the defence and to the effect of such possibilities on a reasonable decision to take the risk of a second trial.  Instead, it limited its analysis to the question of whether [translation] “the fresh evidence could reasonably have affected the result and prompted the appellant to run the risk of a second trial” (para. 59).

109                        Certainly, the appellant Duguay’s guilty plea seemed to be free, voluntary and unequivocal, applying the relevant standards from the case law, and was entered at a time when he was represented by a new lawyer.  In an affidavit dated June 7, 1999, the appellant stated that he had instructed Mr. Painchaud to negotiate a guilty plea with the Crown because he had lost [translation] “all hope of winning at trial”.  Because the plea was entered after an order was made for a new trial, and after negotiation with the Crown, the appellant was aware of the nature of the charges against him and the risks he was running.

110                        In an affidavit filed in support of his application for leave to appeal to the Court of Appeal, the appellant Duguay stated that he would never have admitted his guilt if he had known of the existence of the fresh evidence.  He also declared that he had not participated in any way in the acts that caused the death of Sandra Gaudet and that he was innocent of the charge to which he had pleaded guilty.  That solemn declaration was supported by the declarations of Stéphane Painchaud, who represented the appellant when he pleaded guilty, and Georges Dufour, the appellant’s counsel at trial.  They all proclaimed their client’s innocence.  Mr. Painchaud said that [translation] “Mr. Duguay decided to plead guilty for the sole reason that he no longer felt capable either of holding up through a second trial or of running the risk of a murder conviction, and not because he admitted participating in the death of Sandra Gaudet.”  Biron J.A. did not believe either the appellant or his lawyers.  In his opinion, [translation] “the appellant actually admitted the facts at the hearing, in 1995, and . . . pleaded guilty because he was guilty and he was afraid of being convicted of murder again” (para. 54).

111                        In my view, the Court of Appeal incorrectly applied a subjective test in determining the impact of the non-disclosure on the appellant’s decision to plead guilty.  In the opinion of Biron J.A., [translation] “we must ask whether the appellant, who, in his heart of hearts, admitted the facts and was afraid of being convicted of murder again, would have pleaded guilty, knowing what had not been disclosed to him that the Crown should have disclosed before accepting his guilty plea” (para. 55).  In my view, that is not the applicable test.  The test is what the reasonable person in the same situation would have done.  In the circumstances of this case, having regard to the volume, weight and relevance of the undisclosed evidence and the new possibilities that the opportunity to use that evidence would have offered, it is not unreasonable to think that an accused, armed with a more solid defence than at his first trial, at which the jury deliberations had lasted fourteen days, would have hesitated to admit his guilt or would have had more confidence about standing trial a second time.

112                        Without reiterating all of the facts previously analyzed in the Taillefer case, I would just reiterate that the fresh evidence would have enabled the appellant Duguay to impeach the credibility of a number of witnesses, and undermine the plausibility of the prosecution theory.  In addition, it would have opened new avenues for investigation, which could have led to the discovery of new witnesses.  In this context, the Crown’s breach of its duty to disclose all of the relevant evidence led to a serious infringement of the appellant’s right to make full answer and defence.  That breach cast doubt on the validity of the appellant’s admission of guilt and the waiver of the presumption of innocence that pleading guilty involved.

113                        In this case, the Court of Appeal misconstrued the nature of the rules in Dixon and of the impact of the failure to disclose evidence on the overall fairness of the appellant Taillefer’s trial, as well as on the process that led to the appellant Duguay’s guilty plea.  The seriousness of these errors requires that the Court of Appeal’s decisions be set aside.  Accordingly, the guilty verdict against the appellant Taillefer on the charge of first degree murder is quashed.  In addition, the appellant Duguay is granted leave to withdraw his guilty plea and the guilty verdict against him on the charge of manslaughter is accordingly quashed.  We must now determine what remedy is appropriate and just in the particular circumstances of each of the appellants’ cases.  This question was the subject of one of the main disagreements between the parties.

B.     The Appropriate Remedies

(1)    The Positions of the Parties

114                        The appellants are asking this Court to order a stay of proceedings or, in the alternative, to order a new trial.  They contend that the prosecution acted maliciously, and that if this Court does not enter an acquittal, it is therefore required to order a final stay of proceedings.  They accuse the police and the Crown of deliberately concealing evidence, demonstrating conduct that is infinitely more serious than the destruction of evidence that led to a stay of proceedings in Carosella, supra. In their submission, a stay of proceedings is the appropriate and just remedy in the circumstances because the prejudice caused by the abuse in question will be manifested, perpetuated and aggravated through the conduct of a new trial, and no other remedy is reasonably capable of removing that prejudice (Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at paras. 90-91; O’Connor, supra, at para. 75; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, at para. 54).  They assert, in support of their application, the fact that the procedure for assembling and presenting the fresh evidence before the Court of Appeal shows that the witnesses’ memories are no longer reliable.  They also submit that one witness, Isabelle Brouillette, was questioned by the police in extremely suspicious circumstances in January 2000, before she testified in relation to the fresh evidence.  They also argue that the reasonable possibilities of using the undisclosed evidence for the purposes of investigating and gathering evidence have been irremediably compromised by the passage of time and the conduct of the prosecution.  And they submit that the prosecution could not recall the police officers to testify without breaking the rules of ethics, because it is reasonably possible that they lied at trial.

115                        The respondent denies that a stay of proceedings would be an appropriate remedy.  It argues that if this Court decided to allow the appeals, the appropriate and just remedy in the circumstances would be to order a new trial.  It disputes the assertion that the conduct of the prosecution can be attributed to bad faith, having regard to the rules in the case law relating to the duty to disclose as they stood at the time of trial.  In the Crown’s submission, now that the fresh evidence is known and available, holding a new trial would plainly not perpetuate or aggravate the prejudice suffered by the appellants.

116                        I will start with a brief review of the principles governing the power of the courts to direct a stay of proceedings.  I will then apply those principles to the facts of this case in order to determine the appropriate and just remedy in the particular circumstances of each of the matters.

(2)    Stay of Proceedings

117                        This Court has frequently underlined the draconian nature of a stay of proceedings, which should be ordered only in exceptional circumstances.  A stay of proceedings is appropriate only “in the clearest of cases”, that is, “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” (O’Connor, supra, at para. 82).  It is a “last resort” remedy, “to be taken when all other acceptable avenues of protecting the accused’s right to full answer and defence are exhausted” (O’Connor, supra, at para. 77; see also Tobiass, supra, at paras. 89-90; Carosella, supra, at paras. 52-53; Regan, supra, at paras. 53 et seq.).

118                        In O’Connor, supra, at para. 75, this Court adopted principles to circumscribe the power to order a stay of proceedings.  These principles confirm the seriousness of such a decision and the need for a careful and balanced analysis of all the interests at stake — the interests of the accused, of course, but also the interest of the public in crime being punished and in criminal cases being diligently prosecuted.  Those principles hold that a stay of proceedings will be an appropriate and fair remedy where:

(1)    the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2)   no other remedy is reasonably capable of removing that prejudice.

119                           These criteria recognize the prospective rather than retroactive nature of the remedy.  Although, in very rare circumstances, the conduct of the prosecution may be so serious that a stay of proceedings is required in order to avoid bringing our system of justice into disrepute, it is not the purpose of this remedy to punish blameworthy conduct on the part of the State.  The remedy is primarily meant to prevent an abuse from being perpetuated or aggravated (Regan, supra, at para. 54; Tobiass, supra, at para. 91).

120                           In Dixon, supra, this Court pointed out that the appropriate and just remedy for an infringement of the right to make full answer and defence arising out of the Crown’s breach of its duty to disclose must be determined on the basis of the seriousness of the infringement.  At para. 35, Cory J. wrote:

. . . an accused who seeks the extraordinary remedy of a stay of proceedings must not only establish, on a balance of probabilities, that the right to make full answer and defence was impaired, but must also demonstrate irreparable prejudice to that right.  See Carosella, supra, at p. 112.  By contrast, where the remedy sought is a new trial, an accused need only persuade the appellate court of the reasonable possibility that the failure to disclose affected either the outcome at trial or the overall fairness of the trial process, and nothing more.  [Emphasis added.]

121                           A little later, at para. 39, Cory J. added that “[i]n situations where the materiality of the undisclosed evidence is, on its face, very high, a new trial should be ordered on this basis alone.”  Accordingly, in the event that the Court concluded that the breach of the duty to disclose results in an infringement of the accused’s right to make full answer and defence, ordering a new trial would be the minimum remedy.  In order to obtain a stay of proceedings, the accused must further demonstrate that the infringement of the right is irreparable.  That would be the case, for example, if extremely relevant evidence had been irretrievably lost or altered, in such a way as would affect the fairness of the trial (see, for example, Carosella, supra, at para. 54).

(3)   Application of the Principles to These Cases

(a)   The Appellant Taillefer’s Case

122                           In the case of the appellant Taillefer, I believe that it would be premature to order a stay of proceedings, in the case of such a serious crime, where the charge is still first degree murder.  The transcripts of all of the testimony given at the preliminary inquiry and the first trial are still available.  As well, at this stage in the case, we can only speculate as to the prejudice that the accused would suffer by reason of the impeachment of the witnesses’ credibility and the loss of opportunities for investigation.  The trial judge will be in a better position to observe and assess the hurdles that the accused will have to surmount and to determine whether his right to make full answer and defence and to a fair trial is jeopardized by holding a new trial.  It will be up to that judge to monitor the conduct of the new trial closely, and if necessary to assess the consequences of the passage of time and of the prosecution’s conduct on the overall fairness of the proceeding being held before him or her.  As this Court held in R. v. La, [1997] 2 S.C.R. 680, at para. 27:

The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial.  This is often best assessed in the context of the trial as it unfolds.  Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence.  Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application.  This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit.

123                           Moreover, despite the seriousness of the Crown’s breach of its duty to disclose in this case, this is not one of those exceptional situations in which a stay of proceedings is made necessary by the fact that “the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667; O’Connor, supra, at para. 69).  Although there is a considerable quantity of undisclosed and undeniably relevant evidence, the evidence does not show that the Crown acted in bad faith, out of improper motives or in any other way that would have the effect of tarnishing the integrity of our system of justice (O’Connor, supra, at para. 69).  While the infringement of the accused’s rights might even be characterized as very serious, it certainly appears to result from an incorrect understanding of the nature and scope of the duty of disclosure.  In this case the need for the precedent provided by this Court in Stinchcombe can be readily appreciated.

124                           Accordingly, in the appellant Taillefer’s case, the appropriate and just remedy in the circumstances is committal for a new trial on the charge of first degree murder.  In the event that the trial judge determines that the accused cannot be given a fair trial, that judge could exercise his or her discretion at any time and order a stay of proceedings, as I noted earlier.

(b)   The Appellant Duguay’s Case

125                           The circumstances surrounding the events in the Duguay case make the determination of the appropriate remedy in that case more complex and more difficult.  At this point in the analysis of this appeal, it is important to note a few aspects of the conduct and conclusion of the prosecution initiated against the appellant Duguay.  On February 1, 1991, the appellant Duguay was convicted of first degree murder and sentenced to life imprisonment without possibility of parole for 25 years.  He then appealed his conviction.  On June 12, 1995, the Court of Appeal allowed the appeal, quashed the guilty verdict and ordered a new trial on a charge of second degree murder.  Before his new trial was held, the appellant Duguay negotiated a guilty plea to a reduced charge of manslaughter.  His guilty plea was accepted and accordingly, on August 16, 1995, he was sentenced to 12 years in penitentiary.

126                           As we have seen, the appeal relates to the verdict that resulted from the guilty plea, on a reduced charge of manslaughter.  When that second verdict is quashed, we must examine whether this Court may consider committing the appellant for trial on a charge of second degree murder, as the Court of Appeal had decided after the first appeal, applying Harbottle.  Committing the appellant for trial on a charge of that nature would be an injustice, having regard both to the seriousness of the infringement of his rights and to the particular facts of his case, particularly the period for which he has already been incarcerated.  If he is convicted of manslaughter, he has already served eight full years of his twelve-year sentence and is eligible for parole.  If he had been found guilty of second degree murder, he would undoubtedly be approaching eligibility for parole.

127                           In this context, we must find the appropriate solution by applying s. 24(1)  of the Charter .  As we know, that provision must be interpreted broadly and liberally, to ensure the achievement of its purpose, namely to protect the rights guaranteed by the Charter  by providing for complete, effective and appropriate remedies when those rights are infringed.  It gives the courts very broad discretion, which they may use to define appropriate and just remedies where rights protected by the Charter  are infringed (Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, at p. 104 (per Sopinka J.); R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81, at paras. 18 et seq.; R. v. Gamble, [1988] 2 S.C.R. 595, at p. 649; Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 965 (per McIntyre J.); R. v. Rahey, [1987] 1 S.C.R. 588, at pp. 619-20 (per Wilson J.); Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, 2003 SCC 62).

128                           The functional and structural approach adopted by this Court in 974649 Ontario allows wide latitude in assessing and devising appropriate remedies, provided that those remedies are of such a nature as to fall within the roles and functions of appellate courts in this case.  The prosecution’s suggestion that a new trial be ordered on the charge of second degree murder seems to be unjust on its face, because it would amount to punishing the appellant Duguay for succeeding in having his guilty plea and his conviction on the reduced charge of manslaughter quashed.  If it were possible, a new trial on a reduced charge of manslaughter would also be an unfair burden for the appellant Duguay, who has already, in effect, been punished for that offence.  A stay of proceedings is therefore the appropriate remedy that is called for.  The appellant Duguay was incarcerated for the period extending from his conviction for first degree murder on February 1, 1991, until the Court of Appeal ordered the new trial on June 12, 1995.  He then agreed to admit that he was guilty of a reduced charge of manslaughter and was consequently sentenced to a term of 12 years in penitentiary.  Today, he has served eight years of that sentence and has been eligible for parole since August 16, 1999.  Ordering a new trial when the accused has already served so much of his sentence would contribute to perpetuating an injustice and would tarnish the integrity of our judicial system.  This is plainly one of those cases where a stay of proceedings is warranted, because “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency”, and to “prevent the abuse of a court’s process through oppressive or vexatious proceedings” (Conway, supra, at p. 1667, quoting R. v. Jewitt, [1985] 2 S.C.R. 128, at pp. 136-37, and the Ontario Court of Appeal in R. v. Young (1984), 40 C.R. (3d) 289; R. v. Keyowski, [1988] 1 S.C.R. 657, at pp. 658-59; R. v. Mack, [1988] 2 S.C.R. 903, at p. 941; R. v. Power, [1994] 1 S.C.R. 601, at pp. 615-16).  In this case, in my opinion, the need to avoid offending fair play and decency prevails over society’s interest in the prosecution of criminal cases.  This Court is faced here with one of those situations in which the proper administration of justice will be best served by a stay of proceedings (Conway, at p. 1667).  A resumption of the proceedings, so that the trial judge could find, at the end of those proceedings, that the accused has already effectively spent the time in prison that is normally imposed in the case of any term to which he might be sentenced if he were convicted does not seem to be in the public interest in any sense, and places an excessive burden on the appellant.  At some point or other, in circumstances like these, a stay of proceedings seems to be virtually inevitable.

129                           This Court has repeatedly held that there is not necessarily an abuse of process in a case in which bad faith or malice on the part of the State can be shown (Conway, at p. 1668; Keyowski, supra, at p. 659).  In cases involving multiple trials, the courts have held that the fact that an accused has already served a significant portion of his or her sentence is a relevant factor in determining whether an order for a new trial would be an abuse.  At issue in Keyowski, was whether a series of trials could per se constitute an abuse of process or whether it is necessary for the accused to show prosecutorial misconduct.  More precisely, this Court had to decide whether the appellant should stand trial a third time on a charge of criminal negligence causing death.  The trial judge had stayed the proceedings on the ground that ordering a third trial would be abusive and contrary to s. 7  of the Charter .  The Court of Appeal had reversed that decision and ordered a new trial.  This Court affirmed the decision of the Court of Appeal and ordered a third trial, on the ground that it was not “one of those ‘clearest of cases’ which would justify a stay” (pp. 659-60).  One of the reasons stated by this Court was the fact that the appellant had not been held in detention, thus tacitly acknowledging that a long period of detention is a relevant factor in determining whether an order directing a new trial would result in an abuse of process.

130                           In R. v. Jack (1996), 113 Man. R. (2d) 260, the Manitoba Court of Appeal had to determine whether ordering a fourth trial on a manslaughter charge constituted an abuse of process that justified staying the trial.  At his third trial, the accused had been found guilty by the jury and sentenced to four years in penitentiary.  The Court of Appeal dismissed the appeal, but decided that having regard to all the circumstances, including the fact that the accused had already been detained for fourteen months before his first trial, an order for a new trial would have constituted an abuse of process.  This Court granted the appeal and ordered a stay of proceedings (R. v. Jack, [1997] 2 S.C.R. 334).

131                           In R. v. Datey, [1999] Q.J. No. 1567 (QL), the Quebec Court of Appeal ordered a stay of proceedings because of the fact that the accused had already served the term he had been sentenced to at his trial.  The court held (at para. 8):

[translation]  It would therefore be contrary to the appellant’s fundamental rights, inter alia the right to protection under s. 7  of the Canadian Charter of Rights and Freedoms  and to the guarantee in s. 12, to impose the burden of a new trial on him, with the risk of a conviction.  In this context, in order to respect the guarantees of fundamental fairness in the criminal process, the Court is of the opinion that a stay of proceedings on the charges laid must be granted.  In this context, the appeal as to sentence is moot.

132                           More recently, in R. v. Hunter (2001), 155 C.C.C. (3d) 225, at para. 29, the Ontario Court of Appeal held that ordering a fifth trial for using a firearm in the commission of an offence, aggravated assault and possession of a prohibited weapon would be an abuse of process contrary to s. 7  of the Charter .  The court therefore ordered a stay of proceedings.  The relevant factors in determining whether a new trial should be ordered or a stay of proceedings directed under s. 24(1)  of the Charter  included the fact, stressed by the court, that the appellant had spent about seven months in preventive detention in addition to serving over three and a half years of his sentence.  (See also R. v. Mitchelson (1992), 78 Man. R. (2d) 134 (C.A.); R. v. P. (G.) (1998), 128 C.C.C. (3d) 159 (Ont. C.A.), at para. 2; R. v. L. (R.D.) (1997), 60 Alta. L.R. (3d) 364 (Q.B.), at para. 241; R. v. Sophonow, [1985] M.J. No. 9 (QL) (C.A.), at para. 6; R. v. Sophonow (No. 2) (1986), 25 C.C.C. (3d) 415 (Man. C.A.), at p. 461.)

133                           Having regard to the fact that the appellant Duguay has in fact already been incarcerated for at least eight years, I find that a stay of proceedings is necessary to prevent what would be the perpetuation of an injustice.  There is no other remedy that would cure the prejudice suffered by the appellant Duguay, on the particular facts of his case.

VII.  Conclusion and Disposition

134                           Because I find that the Court of Appeal made numerous errors in its analysis and assessment of the fresh evidence, I would allow the appeals.  In the case of the appellant Taillefer, I would quash the conviction and order that a new trial be held on a charge of first degree murder.

135                           In the case of the appellant Duguay, I would grant leave to withdraw the guilty plea, quash the conviction and, applying s. 24(1)  of the Charter , direct a stay of proceedings.

Appeals allowed.

Solicitor for the appellant Billy Taillefer:  Johanne St-Gelais, Montréal.

Solicitors for the appellant Hugues Duguay:  Filteau & Belleau, Montréal.

Solicitor for the respondent:  Attorney General of Quebec, Sainte-Foy.