R. v. Tweedly

2013 BCSC 910 R. v. Tweedly IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Tweedly, 2013 BCSC 910 Date: 20130128 Docket: 25562 Registry: Vancouver Regina v. Darcy Andrew Tweedly Before: The Honourable Mr. Justice Greyell Oral Reasons for Judgment Counsel for the Crown: T. C. Gerhart Counsel for the Accused: N. L. Cobb Place and Date of Trial: Vancouver, B.C. January 28, 2013 Place and Date of Judgment: Vancouver, B.C. January 28, 2013 [1] THE COURT: These reasons outline my decision to grant a stay of proceedings in this matter. [2] This is an application brought by the accused, Mr. Darcy Tweedly, for a stay of proceedings. It is alleged the Crown has breached its duty to make timely and complete disclosure to the applicant, and that this breach has prejudiced the accused's ability to make full answer and defence, violating ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, 1982, c. 11 (U.K.), Schedule B, (the "Charter"). In the alternative, the applicant seeks the exclusion of related evidence and an order adjourning the trial with costs. [3] The Crown concedes that disclosure has not been full or forthcoming. However, the Crown submits that the breach of the disclosure obligation does not amount to a breach of the accused's Charter rights. Nor, says the Crown, does it warrant that the court provide the defence with a remedy, in addition to the relief that has already been granted, namely by way of adjournments. [4] Mr. Tweedly's trial began on November 26, 2012. On that date, a voir dire commenced on the issue of whether to exclude evidence pursuant to s. 24(2) of the Charter. Significant periods of time were lost over the course of this voir dire. Two important Crown witnesses were stood down, and an additional witness was not ready to testify, as further disclosure was required. The court was adjourned early on several occasions during the voir dire. These steps were taken in order to enable further disclosure of important portions of the Crown's evidence. On the fifth day of the scheduled voir dire, November 30, 2012, the accused brought this application. The court adjourned until December 11 and 12 to hear submissions on the application. [5] For the reasons set out below, I find that a stay of proceedings is both appropriate and just in the circumstances of this case. The Charges [6] Mr. Tweedly is charged with possession of ecstasy for the purpose of trafficking and with attempting to procure methamphetamine, contrary to ss. 5(2) and 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (the "CDSA"). He is further charged with possession of hydriodic acid, red phosphorous, and ephedrine for the purpose of producing a controlled substance, contrary to s. 6.1 of the Precursor Control Regulations, SOR/20020359 and s. 46 of the CDSA. [7] The charges arise from a fire that occurred April 17, 2008 in an apartment building at 850 Burrard Street, Vancouver (the "premises"), the known details of which are laid out below. [8] A helpful starting point in this review of relevant evidence is the Vancouver Fire Department incident report. It documents the first few hours of the incident. [9] That report reveals the Vancouver Fire Department, ("the VFD"), was dispatched at 8:32 p.m. on April 17, 2008, to the premises in response to a smoke alarm complaint. The first crew on scene arrived at 8:35 p.m. They identified white smoke emanating from an open window on the ninth floor of the building. The firefighters entered the building and discovered smoke originating from Suite 908. [10] The firefighters then entered the suite and discovered a glass vessel in the kitchen sink that was in flames. They also found a discharged extinguisher nearby. The firefighters vented the hallway and then re-entered the unit to determine whether the scene required VFD's Hazardous Materials Team, or Hazmat. The crew then withdrew from the suite. The ventilation of the hallway corridor was stopped under order of VFD Officer Crouch. Hazmat was notified of the incident at 8:58 p.m. and eight members were requested, at minimum, to attend to the scene. They were asked to investigate whether VFD was dealing with a clandestine drug lab. Hazmat arrived on scene at 9:15. [11] The incident report also documents communications between the VFD and the Vancouver Police Department ("VPD"). In that incident report there is an extract which reads: Responded With 7 Coy For Possible Smoke in Suite And Hallway. Engine #7 O/S Reported Smoke And Small Fire In Suite Extinguished With Dry Chem From Hallway. Possible Drug Lab, Requested Haz Mat Response, Capt. Conway, K. Advised Of Situation, He Started Haz Mat Procedures, Bat # 1 Unified Command, Notifications To Dispatch. VPD Drug Team Requests Scene Will Be Secured And Processed Next Day, B Shift Team Stood Down. All Apparatus Returned To Quarters. Clothing Wagon Requested For #7 Crew Members For Possible Chemical Contamination, Capt. Saunders, Of Engine #7 Was Detained Approx. 2 Hours To Be De Coned. [Emphasis added.] [12] There is no specific reference to the time at which this update was recorded. The reference to the "next day" can be inferred to mean April 18. [13] A more specific timeline of the VFD response to this incident can be extracted from the VFD dispatch record, which is also included in the fire incident report. Of relevance in this dispatch are records of communications with the VPD. The VPD was informed of the incident at 9:21 p.m. At 9:25 p.m. Hazmat contacted their VPD contact. By 9:30 p.m. the VPD had resolved the traffic situation around the building. At 11:35 p.m. the VFD was still investigating the scene. At this time the VFD considered turning the scene over to the VPD. At 11:52 p.m.], the report documents: ALL PEOPLE ARE NOW ALLOWED BACK INTO BLD, 9TH FLR AS WELL, **EXCEPT 908 WHICH IS UNDER LOCK DOWN BY VPD [14] The investigation continued throughout the night into the following day, April 18th, until 11:56 p.m. The fire incident report records Hazmat being present at the scene for decontamination and hazard assessment. Health Canada scientists and VPD were also recorded as being present at the scene. The Bomb Squad was brought in, recorded at 8:58 p.m. on April 18, after the discovery of two open bottles of ether. [15] The first two witnesses called on the voir dire were members of the VFD, Firefighter Donald Green and Captain Sandy Gerhardt. [16] Mr. Green had been in the first response team and arrived on site at 8:35 p.m. He testified Suite 908 looked like a drug lab. He further testified that, given the nature of the chemicals, the VFD decided to call in Hazmat to bring special resources to the scene. Mr. Green recalled drawing the location of the chemicals in the suite on a white board to assist the Hazmat team in dealing with these hazardous substances. [17] Captain Gerhardt entered the suite with another fire captain shortly after his arrival at the scene in order to assess the resources needed. He observed cans of stove oil and other unknown chemicals in and about the suite. [18] Constable Bech, an acting sergeant with the VPD for the downtown core of Vancouver, received a call to assist the VFD regarding a fire and a potential clandestine drug lab just after 9:00 p.m. He was the first VPD officer who attended the scene. Shortly after his arrival he spoke with a fire battalion chief who told him the suite was likely a drug lab. Constable Bech then treated the scene as a crime scene, giving directions to seal the area off and posting VPD officers at the main and rear doors, as well as at the entrance to the parking lot of the building. [19] Constable Bech notified the VPD area commander and was advised to notify Sergeant McKenna, the on-call officer in charge of drug investigations. As will be discussed below, subsequently, members of the drug squad arrived at the scene. One VPD officer entered the suite with Hazmat members. Following this entry, Constable Bech posted two VPD members at the entrance of Suite 908. [20] Of significance in these facts as outlined above is that the fire investigation quickly determined the possibility of a clandestine lab. Both the VFD and Constable Bech took steps within a half an hour of arrival to have the scene secured for hazardous substances. [21] I now turn to review in greater detail the evidence of the key players in the VPD response to the incident on April 17th and 18th. [22] I have already discussed the role of Constable Bech. [23] Sergeant McKenna was in charge of the drug squad that attended the scene. Constable Coghill was a member of that drug squad. He and Sergeant McKenna were primarily the VPD officers in charge of the scene, and both oversaw or had input into the drafting of the Information to Obtain the Search Warrant ("ITO"). [24] Both Sergeant McKenna and Constable Coghill created several will‑say statements that recorded their respective involvements in the incident. Their will‑say statements are summarized here. Sergeant McKenna's First Will‑Say Statement [25] In Sergeant McKenna's first will‑say statement, dated April 22, 2008, which is no more than half a page in length, he states that the VFD attended to Suite 908 in the premises in response to a fire call, and that he was soon after informed that a clandestine lab had been discovered by the VFD. [26] Sergeant McKenna states he arrived on scene at approximately 10:30 p.m., and that at this time the VFD, the B.C. Ambulance, and Hazmat were on scene. He then "joined in" on the unified command. He also states that at no point in time did he enter the apartment. Sergeant McKenna says he was involved in the decision to have the apartment guarded overnight and to have the scene processed the next day. He returned to the building the following day at 8:30 a.m. Health Canada chemists and the City of Vancouver EPA representative were also present at the scene. He was on site that day until approximately midnight. [27] Sergeant McKenna states that at no time did he partake in the investigation or enter the apartment. He acted as the police site commander, ensuring that proper resources were available. [28] This will‑say statement, as stated prepared April 22, 2008, was disclosed to the accused or his counsel on January 9, 2009. Constable Coghill's First Will‑Say Statement [29] Constable Coghill prepared a will‑say statement on May 9, 2008, two pages in length. In this statement, he says that on April 17, 2008, at approximately 8:30 p.m., the VFD received a call for a possible fire on the ninth floor at 850 Burrard Street. He states that at 9:05 p.m., the VPD received a dispatch calling for assistance in regard to a possible clandestine lab. At approximately 9:20 p.m., Inspector Zanatta, the top VPD officer on duty in the city that evening, contacted Sergeant McKenna or the VPD Drug Unit regarding a possible clandestine lab. [30] Constable Coghill states that at 12:20 a.m., he and members of the VFD Hazmat Team entered Suite 905, which I take to be an error, to determine the presence of potential hazards inside the suite. Constable Coghill affirmed that the door to the suite was unlocked and that there was no sign of forced entry. The VFD monitored the oxygen levels in the air and checked for potential hazardous vapours and gasses in the suite. The VFD also took photographs of containers of potential chemicals or physical hazards. [31] Constable Coghill states he made the following observations of substances or items present in the suite: (i) two metal five‑gallon drums wrapped in garbage bags containing ether; (ii) eight four‑litre jugs of muriatic acid; (iii) one large jug of acetone; (iv) eight plastic jugs of stove fuel; (v) two large cans of toluene; (vi) three new digital thermometers; (vii) several glass beakers and reaction vessels; and (viii) one Tupperware container holding 500 orange tablets consistent with the size and shape of ecstasy. [32] Constable Coghill states in his will‑say statement that at 12:40 a.m., he and the VFD exited Suite 905, again an error. [33] He concludes his will‑say by explaining he was assigned the role of site safety officer by Sergeant McKenna in regard to this incident, and that his role was to keep track of and suit up police officers and chemists that conducted the sampling, processing, searching, and dismantling of the clandestine lab. [34] This will‑say was not disclosed to the accused or his counsel until November 27, 2012, the second day of the voir dire. The circumstances surrounding such disclosure will be reviewed further below. [35] There is no mention of a search warrant or to the preparation of an ITO in either Sergeant McKenna or Constable Coghill's will‑say statements. [36] The will‑say statements are of some significance, as both Sergeant McKenna and Constable Coghill took contemporaneous notes, of their involvement in the fire incident. The evidence before the court was that both had lost their notes. I will discuss this issue later in these reasons. [37] The discoveries of the various chemicals and paraphernalia found in Suite 908 of the premises resulted in Mr. Tweedly being charged. He was arrested on January 7, 2009 over eight months after the incidents giving rise in the charges. [38] Over four years later, as a result of this matter coming to trial, both Sergeant McKenna and Constable Coghill were asked by the Crown to prepare more detailed will‑say statements. Accordingly, both prepared second will‑say statements. [39] Sergeant McKenna's second will‑say statement is undated. It was received by defence counsel on the evening of November 27, 2012, following the second day of the voir dire and in the midst of his testimony. It is slightly over three pages in length. [40] The following information found in Sergeant McKenna and Constable Coghill's second will-say statements is relevant for the purpose of determining this application. [41] I turn first to Sergeant McKenna's second will‑say statement. [42] Sergeant McKenna provided a considerably amplified statement. In this will‑say, he states that on April 17, 2008, he was the on-call sergeant of the VPD Drug Unit. At approximately 9:20 p.m. on that day, he was contacted by Inspector Zanatta, who advised him that a clandestine lab had been located at 908, 850 Burrard Street. He was told to call upon as many Drug Unit detectives as required. [43] He states that the VPD Drug Unit is responsible for the investigation and dismantling of all clandestine labs. Only detectives with clandestine lab training will be relied upon to do so, and he has such training. [44] Sergeant McKenna states he then contacted Constables Coghill, Dobreci, Kazuta, Lee, and Schmiedt [45] Sergeant McKenna assigned the following roles to the Drug Unit detectives: (i) Constable Coghill: site safety officer; (ii) Constable Dobreci: lead investigator/file coordinator; (iii) Constable Kazuta: to prepare and be the affiant to the ITO; (iv) Constable Lee: exhibit officer; (v) Constable Schmiedt: exhibit officer/searcher. [46] Sergeant McKenna states that procedurally in these circumstances, when a clandestine lab is located, the scene becomes a police investigation and the police take charge. [47] Sergeant McKenna arrived on scene at approximately 10:30 p.m. He was the senior VPD officer on site. After speaking with Inspector Zanatta, he met with representatives from VFD, Hazmat, and B.C. Ambulance to establish a unified command structure for decision-making in regard to the incident. At the time of his arrival, he was informed that only the initial VFD responders had entered the apartment. [48] Sergeant McKenna states that after discussions with VFD and Hazmat, a team was created with the task of entering the suite to conduct a risk assessment. This was Sergeant McKenna's decision. He says he assigned Constable Coghill to enter the suite. He was to be joined by Hazmat personnel. [49] Constable Coghill entered the suite with the Hazmat team. Sergeant McKenna says that all photographs taken by the VFD during this entry captured items in plain view. Upon completion of the risk assessment, the photographs were viewed inside the Hazmat response vehicle by himself, Constable Coghill, VFD, and Hazmat. It was determined during the meeting that the site was likely a clandestine lab. Sergeant McKenna says that no one re-entered the scene until the following day, after a search warrant had been obtained. [50] In his will-say, Sergeant McKenna says he then advised Inspector Zanatta of the following information: 1. We could not begin to process the lab until a Search Warrant was obtained. I advised him that this would take several hours. 2. Health Canada chemists were not available until the morning[.] 3. I would arrange Fire, Hazmat and Ambulance resources for the following morning and have them return. 4. That I would recommend that tenants of other suites on the 9th floor could return to their suites but would let them know that the 9th floor would be evacuated the following day during the searching and dismantling process. 5. That I would require several uniform officers called out to lock down the 9th floor and entrance to #908 to ensure continuity of the suite and evidence until we returned the following day to process it. 6. That this lab would require all the resources that responded this evening plus further resources. These would include Police traffic officers for traffic control the following day as we would be blocking off the 800 block of Burrard. 7. That I would be returning and organizing all the resources early in the morning. [51] Sergeant McKenna states that he returned to the scene on April 18th at 8:30 a.m. He says he again formed a unified command team, and that they remained on scene until 2:00 a.m., April 19, 2008. [52] He states in the final paragraph of his will-say, and I have placed emphasis on this: The times indicated on this report were written from notes that I made at the time and during the investigation. I made specific notes on who attended and who was called out to contain the scene. Unfortunately this note book along with some other personal folders of mine was misplaced by the moving company who was contracted to move the VPD from 2120 Cambie Street to their new office on Graveley Street. These articles have never been located. This report has been written from my recollection of the incident. [Emphasis added.] [53] I turn to Constable Coghill's second will‑say statement. [54] It was prepared November 14. It was disclosed to the defence that same day. It is also slightly in excess of three pages in length. [55] In Constable Coghill's second will-say statement, he states that he was a VPD Drug Squad member from 2004 to 2010, and that he was trained to be a site safety officer for clandestine labs. [56] Constable Coghill reviews the event in greater detail. He says that when he arrived on scene, he was advised of what the first response VFD members had been in Suite 908. He said he did not have enough information to make a proper assessment of the potential hazards and safety risks for the other tenants in the building based on this information, and requested that he be permitted to enter the suite. At first, he attempted to avoid entering the suite by using a live feed camera placed on a VFD member. However, he said the live feed was not working properly. He then proceeded to enter the suite, fully suited in personal safety gear. Constable Coghill then advised Sergeant McKenna what he had observed. He recommended applying for a search warrant and keeping the floor evacuated. [57] Constable Coghill states that after the search warrant was obtained, he assisted in suiting up Health Canada chemists and the drug squad to dismantle the clandestine lab. He concludes his will-say by stating that he did not re-enter the suite and did not take part in the criminal investigation. [58] I note there is no reference to the time when the ITO was prepared in Sergeant McKenna or Constable Coghill's will-say statements. According to the disclosure letter from the Crown to the accused dated January 9, 2009, the warrant to search 908, 850 Burrard was dated April 18, 2008. The ITO was also dated that date. [59] I turn to the voir dire and disclosure issues. [60] At issue is the Crown's late disclosure of evidence. Also at issue is the Crown's failure to disclose the notes taken of police officers at the scene on April 17 and 18, 2008, and the failure of both Crown and police to preserve those notes. I will review the unfolding of these disclosure issues as the voir dire proceeded. [61] On the first day of the voir dire, November 26, Constable Bech was called by the Crown to testify to his role as initial supervising police officer on scene. In his cross-examination, defence counsel discovered Constable Bech sought to rely on notebook entries he took on April 17, 2008. Those notebook entries had not been disclosed. The notebook entries were sparse, however, at best, and defence counsel proceeded with cross-examination. [62] On the second day of the voir dire, November 27, 2012, Sergeant McKenna was called as a Crown witness. During his examination in chief, the defence raised an objection. Sergeant McKenna was stood down at 2:04 p.m. Defence counsel then argued the sergeant was testifying to matters that were not found in his will-say statement dated April 22, 2008. Defence argued the sergeant's testimony was a clear indication there was a disclosure issue, as there was no evidence of the witness acting in a decision-making role in either his will-say statement or in his report to Crown counsel. [63] The Crown proposed the witness produce a further will-say statement and that the court stand down Sergeant McKenna. Defence counsel agreed with this process, but also noted at the time the Crown was not electing to call any other members of the command unit formed on April 17, 2008, except Sergeant McKenna. [64] As noted earlier, Sergeant McKenna's second will-say statement was provided to defence counsel on the evening of November 27th. [65] Sergeant McKenna returned to the witness stand on November 29, 2012, at 10:20 a.m. He testified that he made notes at the time of the incident, but that he had been unable to find these notes. He said he believed his notes were lost by the company that was hired to move the VPD offices to a new location. He testified in cross-examination that he "tore his home and office apart" in search for the lost notebook. [66] Sergeant McKenna went on to testify that he had first notified the Crown of his lost notes in his Crown pre-trial interview on November 1, 2012. He said that in preparation for the interview he discovered the loss of his notebook. He recalled that at the conclusion of his interview with Crown, he gave assurances to Crown counsel, he would continue to search for his notes. [67] In cross-examination, Sergeant McKenna affirmed he had not contacted the moving company in regard to any lost notes. [68] Being an experienced police officer, Sergeant McKenna agreed he understood the importance of contemporaneous police notes and the requirement for their disclosure, and that the report he submitted to Crown counsel on May 9, 2008, had indicated "no notes attached". Sergeant McKenna had no explanation for that comment in his report. [69] Similar issues arose in Constable Coghill's testimony. Constable Coghill was called to the witness stand by the Crown on November 27, 2012. In his examination in chief, he asked the court if he could refer to a statement to refresh his memory. Defence counsel asked for clarification as to which statement the witness intended to refer. The Crown could not immediately respond, hence Constable Coghill was stood down at 3:17 p.m., some 15 minutes after the commencement of his evidence. [70] Defence counsel at that time confirmed that all he had in his possession, and which had been disclosed, was Constable Coghill's statement prepared November 14, 2012, and a letter accompanying the statement, advising that the officer had confirmed he had no handwritten notes in relation to the investigation. The Crown then informed the court that Constable Coghill had intended to rely on a will-say statement he had prepared May 9, 2008. The Crown could not confirm whether Constable Coghill's May 9, 2008, will-say statement had been disclosed to defence counsel. [71] The witness remained stood down until November 28, 2012, for the defence to consider Constable Coghill's May 29 will-say statement. On that day, at the commencement of the proceedings, Crown confirmed that Constable Coghill's will-say statement prepared in May 2008 had not been disclosed to the defence; that it had been excluded from the Crown's disclosure package sent to the accused's former counsel in January 2009. [72] The Crown maintained that disclosure provided to the defence on January 9, 2009, was explicit in drawing to defence counsel's attention the fact that pages 68 to 71 were not disclosed. The relevant portion of that letter reads: Further to your request for disclosure, please find enclosed the following: 2. Occurrence Number 2008-69931 (68 pages); (NOTE: Pages 68 - 71 missing from report); [73] These excluded pages were Constable Coghill's original will-say statement. The court was not provided with any explanation as to why these pages were excluded from the original disclosure package of January 9, 2009. [74] When Constable Coghill resumed the witness stand, he testified that when he had attended the scene on April 17, 2008, he took notes on foolscap paper and on a white board. He testified he had subsequently lost these notes. He gave no explanation as to how the notes may have been lost. The contents of the notes, he said, identified the times when officers had entered and left the building, as well as the identity of the persons who had entered and left a police crime lab truck at the scene. Importantly, the notes recorded Constable Coghill's observations taken at the scene. [75] Constable Coghill's original will-say statement makes no mention of a whiteboard or that he took notes on foolscap paper, nor does it mention the presence of a police clandestine lab truck. [76] As did Sergeant McKenna, Constable Coghill testified he had been trained in note-taking and that he understood the importance of contemporaneous notes and the requirement for their disclosure. [77] Constable Coghill, as stated, did not recall how the foolscap notes were lost or whether he had made copies of the notes. He agreed it would have been "a good idea" to take a photograph of the notes written on the white board before those notes had been erased. [78] As I understand Constable Coghill's testimony, his notes were used to draft the police report to Crown, as well as the ITO. [79] Constable Coghill also testified he had informed the Crown that he had lost the notes he took on April 17 and 18, 2008, on November 6, 2012. This is despite the fact the Crown had advised defence counsel by letter on November 14, 2012, in the following terms: Please find attached the lab evidence of Constable Coghill. Please note Constable Coghill has confirmed that he does not have any handwritten notes in relation to this investigation. [80] In cross-examination, Constable Coghill was tested on the accuracy of his recollection of the events which occurred in April 2008. Constable Coghill testified he thought his ability to recall was reliable as "the more I think about the incident, the more I remember". [81] In the Crown's opening statement at the commencement of the voir dire, the court was advised that Constable Kazuta would be called to testify as to the drafting of the ITO. Crown counsel advised the court on November 30, 2012, Constable Kazuta was not available to testify at that time, as Crown had received new evidence from Constable Kazuta which had not been disclosed until that morning. This disclosure was described by Crown counsel as composing 15 large photographs of Suite 908, accompanied by a will-say statement from Constable Kazuta. The court was advised that in this will-say statement, Constable Kazuta said he did not know who had taken the photographs, who had given the photographs to him, or when he had received them. These photographs were enlarged versions of the photographs disclosed in January 2009. [82] As stated, the accused brought this application on November 30, 2012. [83] The applicant submits that the Crown has breached its disclosure obligations by way of late and lost evidence, and that these disclosure failings amount to a violation of Mr. Tweedly's Charter rights. [84] The applicant further submits it had no way of knowing that the first disclosure made by the Crown in January 2009 was missing pertinent documents. There was no indication the disclosure was missing notes taken by police officers at the scene, or that the missing pages referred to in the cover letter of the Crown was in fact the May 2008 will-say statement prepared by Constable Coghill. [85] Defence counsel relies on a number of provincial court decisions in support of his position a stay of proceedings is an appropriate remedy in the circumstances of this case. Counsel further argues there are no reported or unreported cases where the Crown's failure(s) to disclose are as egregious as those extant on the record here. [86] In addition to the disclosure issues outlined above, the applicant refers to several other examples of late disclosure. [87] First, a package of documents originally filed by the Crown at the preliminary inquiry in Provincial Court. This package had remained sealed until the court pronounced an order granting the unsealing of the exhibits for the Crown and defence to examine on November 22, 2012. The documents were disclosed to the defence on November 26, 2012. [88] Second, the VFD incident report, disclosed to the defence on November 23, 2012. [89] Third, Constable Kazuta's call log of April 17 and 18, 2009, disclosed on November 5, 2012. [90] Lastly, Constable Coghill's curriculum vitae, disclosed to the defence on November 28, 2012. [91] The applicant says the only appropriate remedy is a stay of proceedings, given the combined effect of the Crown's disclosure failings in this case. [92] Of particular concern to the applicant is the loss of Sergeant McKenna and Constable Coghill's notes. The applicant says the Crown did nothing for over four and a half years to ascertain if the ranking police officers on the scene of a criminal investigation had taken notes, and when it did discover these notes were lost, took no steps to inform defence counsel of this failure to preserve highly relevant evidence. [93] The Crown agrees there have been breaches of its disclosure obligation. However, the Crown submits that the accused has not established any breach of ss. 7 or 11(d) of the Charter. The Crown maintains its disclosure of the outstanding materials, even given the late date of such disclosure, combined with the standing down of Sergeants McKenna and Coghill to allow the defence time to prepare for cross-examination, is a sufficient remedy for any adverse impact on the fairness of the trial. [94] In regard to Sergeant McKenna's lost notes, the Crown submits such loss does not amount to a breach of the Crown's duty to disclose. There is no evidence, says the Crown, to suggest the notes were destroyed or lost due to carelessness or negligence. Nor can it be said that Sergeant McKenna has not taken great efforts in his search to attempt to recover such lost evidence. To remedy this loss, the Crown says it has already supplied more detailed will-say statements from both Sergeant McKenna and Constable Coghill, which it maintains is sufficient relief in these circumstances. The Crown says the loss of notes may be considered by this Court in the assessment of the credibility and reliability of the evidence of Sergeant McKenna and Constable Coghill. [95] I turn to review the relevant principles of law in determining whether to grant this application. (i) The Crown's Disclosure Obligation [96] It is trite law the Crown must disclose all relevant information in its possession to the accused, regardless of whether it intends to introduce this evidence at trial: R. v. Stinchcombe, [1991] 3 S.C.R. 326 at para. 12. [97] This rule of course is not absolute. The Crown does not have a duty to disclose evidence that is clearly irrelevant, that is outside of its control or that is subject to a rule of privilege: Stinchcombe at para. 16. It is also within the Crown's discretion to determine the timing of the disclosure. However, initial disclosure should occur before the accused is called to elect the mode of trial or to plead. Finally, the obligation of disclosure is a continuing one: Stinchcombe at para. 28. [98] Dovetailing with its disclosure duty, the Crown has an obligation to preserve relevant evidence. The police also bear this duty: R. v. La, [1997] 2 S.C.R. 680 at para. 20. [99] As explained in R. v. Chaplin, [1995] 1 S.C.R. 727 at para. 20, the rationale for the Crown's disclosure obligation stems from recognition of the accused's right to make full answer and defence as a principle of fundamental justice protected under s. 7 of the Charter. See also R. v. Taillefer, 2003 SCC 70 at paras. 60 - 62. (ii) When does a Breach of the Crown's Disclosure Obligation amount to a Charter Violation? [100] In R. v. Bjelland, 2009 SCC 38 at para. 21, the court held that the accused must prove there has been actual prejudice to their right to make full answer and defence when establishing a s. 7 Charter violation. Actual prejudice was interpreted to mean the trial process had been rendered unfair by virtue of the breach of the disclosure obligation. The court cited from its decision R. v. Harrer, [1995] 3 S.C.R. 562, to define trial unfairness, as excerpted here: 45 At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, [1987] 2 S. C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused. [101] In La (supra) Mr. Justice Sopinka identified two scenarios when a disclosure breach will result in a s. 7 Charter violation. [102] First, a violation of s. 7 of the Charter may be found when there has been "lost" evidence. Sopinka J. clarified in La that the accused does not have a right to original evidence. However, he held that if the original evidence is not available and it had once been in the Crown's possession, then the Crown must explain its absence if it has not been disclosed. He set out the onus for this explanation at para. 20: "[w]here the Crown's explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached." [103] The court in La stated the obligation as follows: 20 This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown's explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose. 21 In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police. [104] Hence "unacceptable" negligence in the loss or destruction of evidence will violate an accused's Charter rights. [105] In considering whether there is a satisfactory explanation for the loss or destruction of evidence, the court must determine whether the Crown or the police took reasonable steps in the circumstances to preserve the evidence for disclosure. An important consideration is the relevance that evidence was perceived to have at the time. As stated by Sopinka J. in para. 21: " as the relevance of the evidence increases so does the degree of care for its preservation that is expected of the police." [106] Second, unacceptable negligence in failure to disclose or preserve evidence may result in an abuse of process will satisfy to the court that the accused's right to make full answer and defence has been breached. In La at para 22 Sopinka J stated: 22 What is the conduct arising from failure to disclose that will amount to an abuse of process? By definition it must include conduct on the part of governmental authorities that violates those fundamental principles that underlie the community's sense of decency and fair play. The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown's obligation to disclose the material will, typically, fall into this category. An abuse of process, however, is not limited to conduct of officers of the Crown which proceeds from an improper motive. See R. v. O'Connor, [1995] 4 S.C.R. 411, at paras. 78-81, per Justice L'Heureux-Dubé for the majority on this point. Accordingly, other serious departures from the Crown's duty to preserve material that is subject to production may also amount to an abuse of process notwithstanding that a deliberate destruction for the purpose of evading disclosure is not established. In some cases an unacceptable degree of negligent conduct may suffice. [107] Finally, I refer to the British Columbia Court of Appeal decision R. v. Caster, 2001 BCCA 633, application for leave to appeal dismissed, [2002] S.C.C.A. No. 3. In Caster, the court held at para. 48: 48 A court is precluded from granting a remedy under section 24 until it determines the accused's Charter rights have actually been violated. When the constitutional violation on which an accused relies for a remedy under s. 24 is that state conduct has deprived him of his right to a fair trial, or that he has been deprived of his liberty in a manner not in accordance with fundamental justice, he must establish actual prejudice. Rarely will the assertion of prejudice suffice. [108] In summary, I conclude from the above that if the Crown is found to have breached its disclosure obligation, the accused must show, on a balance of probabilities, he has suffered actual prejudice from such breach. The nature of prejudice flowing from the violation will determine the appropriate form of relief to be granted to the accused pursuant to s. 24(1). [109] I turn next to the appropriate remedy under s. 24(1) of the Charter for a violation of s. 7 caused by non‑disclosure. [110] If a Charter violation is established, then the court has the discretion to grant relief that is appropriate and just in the circumstances pursuant to s. 24(1). [111] For relief from a non-disclosure Charter violation, a disclosure order is appropriate and just if it can remedy that violation. This remedy may be combined with an adjournment, if necessary, to enable defence counsel to review the disclosed information: O'Connor at para. 76. In some circumstances, permitting the defence counsel to recall certain witnesses or declaring a mistrial may be the appropriate and just form of relief, particularly when the trial is at an advanced stage: para. 77. [112] Exclusion of evidence may also be granted under s 24(1). In Bjelland, the court held that since the evidence had been obtained in accordance with the Charter, the accused could only be granted an order excluding it under s. 24(1) if, (i) it was established that the late disclosure rendered the trial unfair and that unfairness could not be remedied through an adjournment or disclosure order; or if (ii) its exclusion was necessary to maintain the integrity of the justice system. See Bjelland at paras. 20 to 23. [113] I note that Bjelland at para. 27 the court also held that the seriousness of the offence and any possible delay in the proceedings resulting from the relief granted are relevant factors in determining the appropriate form of remedy. [114] In considering an award for costs against the Crown, as sought here by the applicant, the Supreme Court of Canada has held such an order may be granted when the Crown has breached its disclosure obligation and there has been a marked and unacceptable departure from the reasonable standards expected of the prosecution: see R. v. 974649 Ontario Inc., 2001 SCC 81 at para. 87. [115] The most draconian remedy is a stay of proceedings. [116] The Supreme Court of Canada has instructed courts a stay may only be granted in the clearest of cases "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": see O'Connor at para. 82. The purpose of this remedy is to avoid bringing the justice system into disrepute, making the remedy a prospective rather than a retrospective remedy: see Taillefer at para. 119. [117] In O'Connor, the Court held a stay of proceedings will only be appropriate and just if the circumstances meet two criteria: (i) the prejudice caused by the abuse in question will be manifested, perpetrated, or aggravated through the conduct of the trial, or by its outcome; and (ii) no other remedy is reasonably capable of removing that prejudice. [118] O'Connor lists three important considerations for the s. 24(1) analysis at paras. 79 to 81: (i) the conduct and intention of the Crown; (ii) the number and nature of adjournments attributable to the Crown's conduct; and (iii) societal and individual interests in obtaining a determination of guilt or innocence. [119] In Taillefer, the court held that a stay was appropriate when extremely relevant evidence had been irretrievably lost or altered in a manner that would affect the fairness of the trial, see para. 121. LeBel J. held that despite the serious nature of the Crown's breach of its disclosure obligation, the seriousness of the crime, (first degree murder), the absence of any evidence showing the Crown had acted in bad faith or with improper motive, and the fact that the evidence could be disclosed the appropriate remedy was a new trial. Analysis (i) Has the Crown Breached its Disclosure Obligation? [120] The Crown has conceded it has breached its disclosure obligation owed to Mr. Tweedly. I find the Crown and the VPD have indeed violated the accused's right to prompt and full disclosure in a number of regards. I have summarized the facts earlier, but I think it is of assistance to summarize those breaches here, as they form the basis for my decision to grant the stay application. I list those breaches: (i) the late disclosure of Constable Coghill's will‑say statement; (ii) the late disclosure of the fact Constable Coghill had lost the notes he took April 17 and 18, 2008; (iii) the failure to preserve the notes Constable Coghill took on April 17 and 18, 2008; (iv) the late disclosure of the fact Sergeant McKenna lost the notes he took on April 17 and 18, 2008; (v) the failure to preserve Sergeant McKenna's notes taken April 17 and 18; (vi) the failure to disclose Constable Bech's notes he took April 17th and 18th, although I place minor consideration on this issue; (vii) the late disclosure of the documentation in the possession of Constable Kazuta; (viii) the late disclosure of the fact no records had been made of the chain of custody for the large photographs in his possession; (ix) the late disclosure of the VFD incident report; (x) the late disclosure of Constable Coghill's curriculum vitae; (xi) the late disclosure of a package of documents originally filed by the Crown at the preliminary hearing in Provincial Court in this matter; lastly (xii) the late disclosure of the call log made by Constable Kazuta on April 17 and 18, as referenced by Crown counsel during the course of her submissions on November 30, 2012. [121] The Crown has attempted to remedy most of the late disclosure issues. [122] The documents referred to in the above list are all relevant because they could be reasonably used by the defence in meeting the case of the Crown. [123] The disclosure problems raised in the above list vary in their significance. Of particular concern are the lost notes of Sergeant McKenna and Constable Coghill and the very belated attempts to revive the contents of those notes through the will-say statements requested and disclosed during the voir dire. [124] Although suggested otherwise in argument by Crown, there is no basis upon which I can find defence counsel has failed in its obligation to request materials or to request further disclosure from the Crown. Again, the obligation to disclose rests on Crown. Defence counsel had no information that would advert defence to the fact that police notes had been excluded from the January 29, 2009 disclosure package, or that police notes had existed but were never disclosed. In fact, representations to the contrary were made to defence counsel in the letter Crown counsel sent to defence, dated November 14th regarding Constable Coghill's evidence. I have made reference to that letter earlier in this decision. (ii) Has the Crown's Breach of its Disclosure Obligation Violated the Accused's Charter Rights? [125] Has Mr. Tweedly suffered actual prejudice to his right to make full answer and defence? I find he has. [126] There are several bases upon which the defence relies to assert there has been actual prejudice to Mr. Tweedly's right to make full answer and defence. [127] First, the accused alleges the loss of relevant police notes in and of itself amounts to a Charter violation. [128] Second, the accused alleges the Crown and the police have conducted themselves in a manner that constitutes an abuse of process that thereby constitutes a Charter violation. [129] Third, the accused's right to a fair trial is adversely impacted because the reliability of the record that served as the basis for the ITO is at issue as a result of the lost police notes. [130] Fourth, the defence says the credibility of the officers who drafted the ITO is at issue, making contemporaneous notes particularly important for the trial. [131] Finally, the defence says the length of time between the taking of the notes, if any notes were taken, and the time of trial seriously diminishes the reliability of key witness testimony. [132] I will review these positions of the defence. It may very well be that the latter two allegations are not actually prejudicial to the accused; that the loss of notes may militate in the accused's favour with respect to assessing the credibility and reliability of key police witnesses. Nonetheless it is a factor to be taken into account in determining prejudice to the accused in the context of the present application. [133] It is well-established law that police officers' notes or copies of such notes must be produced to the accused. If the notes do not exist, then a will-say statement should be produced based on the information in the Crown's possession: see Stinchcombe at para. 30. [134] In this case, I find the loss of the police notes was not acceptably explained by either Sergeant McKenna or Constable Coghill or the Crown. In fact there was no explanation why the Crown initially accepted will-say statements from Sergeant McKenna and Constable Coghill and did not request their notes supporting those will‑say statements in 2008. [135] I further find that no reasonable steps were taken to preserve the evidence for disclosure. I find the Crown and the police did not comply with their legal obligations to preserve and protect from loss their notes of the things done and observations made or near the scene. [136] Sergeant McKenna did not annex his notes to the report he made to Crown counsel and he had no explanation for not doing so. Sergeant McKenna was cross-examined by the defence as to the steps he took to locate his notes, which he said were lost during the course of the move. Sergeant McKenna testified, however, that he searched both his home and his office for the notes. If the notes were lost as a result of the move of Sergeant McKenna's office, it is curious that he would search his home. The fact the notes may have been kept at his home demonstrates insufficient steps were taken to preserve what could only be important pieces of evidence in this case. [137] Constable Coghill gave no explanation for his failure to preserve his notes on the foolscap paper. He also agreed, as I have earlier stated, it would have been "a good idea" to photograph the notes he made on the white board before those notes were erased. There is, in my view, in this case, a clear breach of the police duty to preserve what can only be called significant evidence. [138] I refer to the words of Mr. Justice Stewart in R. v. Truong, 2010 BCSC 1956 at para. 5: (r) The sin in the case at bar is the failure by the police after they found the marihuana grow operation and arrested the accused to sit down and do their best to put themselves in a position later to tell a judge what went on, the back and forth, the problems, The factual circumstances in Truong are somewhat similar to the facts here. There was a live issue at the time of the incident as to whether consent to enter the house was obtained. Stewart J. continued: Any alleged consent entry resulting in the finding of drugs and the arresting of an accused screams Charter attack. That is not a secret. [139] I find it particularly disconcerting that there is no evidence before this Court of the Crown ever inquiring for these notes. I must infer that no steps were taken to acquire the police notes of either Constable Coghill or Sergeant McKenna. Had such steps been taken, the accused would have been notified at a much earlier stage no such notes were taken. [140] It is also apparent the Crown was not as forthcoming as it could have been in revealing to the defence that the notes of Constable Coghill and Sergeant McKenna had existed and but were subsequently lost. [141] Finally, I find that the significance of these notes recording the steps of the police in a warrantless entry and search could not have been lost on such senior police officers and the Crown. [142] La instructs that the court is to consider the relevance the lost evidence was perceived to have at the time. I find that the lost police notes of Constable Coghill, which were used by Constable Kazuta to draft the ITO, are particularly relevant, given that at issue was whether the evidence in Suite 908 was constitutionally obtained. The issue of a constitutional entry into the suite was a live issue on April 17, 2008. [143] I further find it of significance Constable Coghill was the only police witness that had entered the suite before the search warrant was obtained. He was the only VPD officer who could attest to the pictures of the scene taken by the VFD. A high degree of care therefore attaches to the preservation of Constable Coghill's notes. [144] These are matters which would not have escaped the attention of Crown at the time. That is, Crown would surely have also understood the importance of the preservation and disclosure of the notes. [145] I find actual prejudice to be proved and that Mr. Tweedly's Charter rights under both ss. 7 and 11(d) have been violated by the failure to preserve and disclose the notes of Sergeant McKenna and Constable Coghill. [146] The applicant seeks a stay of proceedings. In the alternative, the applicant seeks exclusion of related evidence and an adjournment, as well as costs. [147] Other less drastic remedies will be considered first. [148] I find a disclosure order combined with an adjournment cannot remedy the prejudice caused by the loss of Sergeant McKenna and Constable Coghill's police notes. This evidence cannot be disclosed. [149] The Crown has attempted to remedy the prejudice created by the loss of the notes by asking Sergeant McKenna and Constable Coghill to draft more detailed will-say statements for the accused. The reliability of the first will-say statements are certainly at issue given their short length and lack of detail. The passage of time and the absence of any contemporaneous notes to refresh the officers' memories makes the inadequacy of this remedy obvious. [150] Nor do I find a mistrial is an appropriate form of relief. The lost evidence issue would simply re-emerge as an issue in a new trial. I must also keep in mind that this matter has already taken four years to get to trial. We are approaching the fifth year since the incident, although much of the delay was caused by a change in defence counsel. [151] I am of the view that an order granting the exclusion of related evidence would have the same effect as a stay. The evidence "relating" to the lost police notes is the real and substantive evidentiary basis necessary to prove the offences for which Mr. Tweedly is charged. [152] I turn my attention to the issue of whether a stay of proceedings is appropriate and just in this case. [153] As recited above, the law clearly instructs a stay is only to be granted in the clearest of cases. Two criteria must be fulfilled: (i) the prejudice caused by the abuse in question will be manifested, perpetrated, or aggravated through the conduct of the trial, or by its outcome; and (ii) no other remedy is reasonably capable of removing that prejudice. [154] The court is required to consider the conduct and intention of the Crown and the police, as well as societal and individual interests in obtaining a determination of guilt or innocence. I do not find that consideration of the number of adjournments granted, as instructed in O'Connor, is relevant here. [155] There is no evidence to suggest bad faith on the part of the VPD or the Crown. However, the conduct of the VPD and the Crown, does give rise to the court drawing inferences of unacceptable carelessness at best and negligence at worst. The police should have taken steps to preserve their notes and to advert the Crown to the existence or non‑existence of such notes. The Crown should have requested the original police notes. The Crown should also have alerted defence counsel about the loss of the police notes as soon as this discovery was made. These steps are basic to the requirement of full disclosure. In my view, failure to take these steps in this case clearly amounted, as stated, at best to carelessness and was unacceptable. [156] Society enjoys a high interest in the prosecution of drug-related crimes; however, it also has a strong interest in the fair prosecution of all such cases. The information contained in the lost notes of Constable Coghill served as the very basis for obtaining the warrant to search Suite 908. Constable Kazuta, who was in charge of preparing the ITO, based that preparation on what he learned from both Constable Coghill and Sergeant McKenna, as Constable Kazuta was not present at the scene. [157] Neither Sergeant McKenna nor Constable Coghill can testify with any degree of precision as to the initial VPD entry into the suite. There is simply no way for this Court to assess the constitutionality of the steps taken by the police in the conduct of their investigation. The cursory will-say statements provided to the defence confirm this point. [158] Should more evidence be heard? Sopinka J. offered these comments with respect to the timing of the disposition on an application for a stay at para. 27 in La [I am not going to read that paragraph, counsel, in view of the time, but it will be incorporated into my decision]: 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. This is the procedure adopted by the Ontario Court of Appeal in the context of lost evidence cases. In R. v. B. (D.J.) (1993), 16 C.R.R. (2d) 381, the court said at p. 382: The measurement of the extent of the prejudice in the circumstances of this case could not be done without hearing all the relevant evidence, the nature of which would make it clear whether the prejudice was real or minimal. Similarly, in R. v. Andrew (S.) (1992), 60 O.A.C. 324, the court found at p. 325 that unless the Charter violation "is patent and clear, the preferable course for the court is to proceed with the trial and then assess the issue of the violation in the context of the evidence as it unfolded at trial". See also: R. v. François (L.) (1993), 65 O.A.C. 306; R. v. Kenny (1991), 92 Nfld. & P.E.I.R. 318 (Nfld. S.C.T.D.). [159] The court is in the midst of a voir dire in this case. The trial, in the sense of hearing the admissible evidence, has not yet commenced. I find, nevertheless, that the prejudice caused by the loss of the notes of Sergeant McKenna and Constable Coghill cannot be overcome by proceeding with this case further. [160] In reaching that conclusion, based on the evidence I have heard on the voir dire, it is important to recall it has been held innumerable times in our courts that police testimony, without the advantage of contemporaneous notes, is unreliable and often not admitted into evidence for that purpose. [161] I am particularly concerned by Constable Coghill's statement that as more time passes, he recalls the incident with greater clarity. I do not accept his evidence in that regard. It is in direct opposition to the evidentiary rule that written notes must be made contemporaneously with the event which is recorded in order to be relied on. This is particularly so in the case of police officers who regularly attend crime scenes. An officer could import their general knowledge from such attendance into their recollection of the particulars of a particular incident when giving evidence. [162] The comments made by the Ontario Court of Justice in R. v. Lozanovski, 2005 ONCJ 112, are particularly relevant in explaining the danger of accepting this kind of evidence. The court there said at paragraph 14: In R. v. Zack, [1999] O.J. No. 5747 (Ont. C.J.), an experienced police officer testified to a number of observed indicia of impairment, including confusion and unsteadiness, two factors not noted, he said because he felt he would remember them. Justice Duncan considered the omission serious and did not accept that evidence. He said at page 2: " In this day of full disclosure it cannot be an acceptable explanation for a police officer to say 'I did not note it because I would remember it'. It is necessary for the officer to at least somewhere put the significant observation he made the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw". I respectfully agree with this view of the diminished reliability of this kind of evidence. It is important to the proper functioning of the judicial fact finding role that significant facts be recorded by police and not left to the whim of memory. [163] I further note these findings in R. v. McConnell, 2008 BCSC 505: I do not accept Cst. Gallop's evidence that Ms. McConnell had slurred speech. Corporal Wright, a veteran police officer with 26 years of experience did not note any slurring of her speech. Ms. Dymus, the attending nurse, was also of the view that Ms. McConnell's speech was not slurred. Finally, Cst. Gallop made no note of slurred speech until her report to Crown which was completed two months after the accident. She also included no details in regard to the slur; i.e. whether it was slight or significant and whether it was constant or intermittent. Nor did Cst. Gallop note where and when she detected slurred speech. Where such important details are absent from contemporaneous records of the events, and not recorded at all until some two months after the events, their reliability is suspect [164] I have not overlooked, in preparing these reasons, that some of the physical evidence made note of, during the course of the warrantless search of the suite conducted by Constable Coghill, may, if proved, be compelling. In my view, however, the prejudice caused to the accused by the lost evidence and the negligence in preserving such lost evidence overcomes the evidence of the physical objects observed and leads me to conclude that, reluctantly, a stay of proceedings must be granted. [165] I summarize my reasons for granting such stay. They are: (i) the notes of the two important VPD investigators, Sergeant McKenna and Constable Coghill taken at the crime scene, have been irretrievably lost; (ii) that no reasonable steps, as that term is defined in La, have been taken on the part of the police or on the part of the Crown to preserve those notes, nor has there been prompt and full disclosure of the evidence to be given by Sergeant McKenna and Constable Coghill in this matter; (iii) the prejudice to the accused, as a result of the first two items listed, will be perpetuated throughout the conduct of the trial; (iv) I cannot determine there is any other less drastic form of relief that could remedy this prejudice. There is no further disclosure which at this stage of these proceedings can remedy the fact of lost notes. Ordering a mistrial will only perpetuate the prejudice in a new trial. Excluding the evidence really has the same effect as the granting of a stay. [166] In short, the notes of Sergeant McKenna and Constable Coghill were extremely relevant to the successful prosecution of this case, and in particular the notes of Constable Coghill, in my view, are foundational to the determination of whether the search of the accused's premises was constitutional. [167] I also am concerned, although this has not been a determinative factor, that we are now some four and a half years after this alleged offence and it will be some number of months, at least, before this matter can be brought back before the court. [168] Accordingly, I enter a stay of proceedings in this matter. "Mr. Justice B. Greyell"