R. v. Malik, Bagri and Reyat

Citation: Citation: R. v. Malik, Bagri and Reyat Date: 20020607 2002 BCSC 864 Docket: CC010287 CC010288 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA HER MAJESTY THE QUEEN AGAINST RIPUDAMAN SINGH MALIK AJAIB SINGH BAGRI INDERJIT SINGH REYAT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE JOSEPHSON Re: Erasure of Wiretap Recordings by C.S.I.S. Counsel for the Crown: L.T. Doust, Q.C. W. Milman Counsel for Ripudaman Singh Malik: S. Coristine Counsel for Ajaib Singh Bagri: M. Code and J. Dawe Counsel for Inderjit Singh Reyat: D.J. Martin Dates and Place of Hearing: April 30, May 1-2, June 3-4, 2002 Vancouver, BC [1] The Canadian Security Intelligence Service ("C.S.I.S.") erased audiotapes containing recordings of telephone conversations electronically intercepted from Talwinder Singh Parmar's home telephone line between March 27, 1985 and September 19, 1985 (the "Parmar intercepts"). The applicant, Mr. Bagri, seeks a declaration that his s. 7 Charter rights have been violated as a result. [2] By way of remedy under s. 24(1) of the Charter, Mr. Bagri seeks leave to raise the matter of the lost evidence before the jury, reserving the right to pursue alternative arguments, including the question of whether the tape erasures constitute an abuse of process or is so prejudicial as to amount to a violation of the right to a fair trial. [3] Mr. Malik and Mr. Reyat support Mr. Bagri's application. [4] The Issues (1) Has there been a breach of Mr. Bagri's s. 7 Charter rights as a result of the erasure of the Parmar intercepts by C.S.I.S.? (2) If yes, what is the appropriate remedy under s. 24(1) of the Charter? Position of Mr. Bagri [5] Mr. Bagri submits that the erasure of the Parmar intercepts breached his rights to disclosure under s. 7 of the Charter. He seeks a declaration that his s. 7 Charter rights have been infringed and, by way of remedy under s. 24(1), leave of the court to cross-examine and/or call evidence regarding the circumstances in which the Parmar intercepts were erased. [6] Mr. Malik and Mr. Reyat support Mr. Bagri's application as applying equally to them. Position of the Crown [7] The Crown called one witness on the voir dire. During the ensuing adjournment, the Crown re-considered their position, and conceded that some of the Parmar intercepts were erased in circumstances which can be characterized as "unacceptable negligence" as set out by the Supreme Court of Canada in R. v. La (1997), 116 C.C.C. (3d) 97 (S.C.C.). Thus the Crown concedes that s. 7 of the Charter was violated and is not opposed to the granting of the preliminary remedies now sought by Mr. Bagri. [8] As a result of Mr. Doust's commendably fair, reasonable and carefully considered concession on behalf of the Crown, the only remaining issue is the legal route by which the failure of C.S.I.S. to preserve the Parmar intercepts gives rise to this s. 7 breach. The Crown initially submitted that C.S.I.S. is distinct and divisible from the Crown and subject only to the obligation to preserve and disclose evidence as a third party, in accordance with the standard set out in R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.). [9] Mr. Code for Mr. Bagri persuasively submits that both law and logic lead to a conclusion that, in the circumstances of this case, C.S.I.S. is part of the Crown, and hence subject to the full panoply of the Crown's disclosure obligations set out in R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.). [10] Despite raising this issue, the Crown then fairly conceded that, as a result of an access agreement between C.S.I.S. and the R.C.M.P. which was crystallized in a letter between the Director of C.S.I.S. and the Solicitor General of Canada in early 1987, it is clear that the R.C.M.P. (and thus the Crown) have had unfettered access to all relevant information in the files of C.S.I.S. and, therefore, the Stinchcombe standard of disclosure applies. [11] While I did hear submissions on this issue, particularly with respect to the appropriate interpretation to be given to Sopinka J.'s ruling in R. v. Carosella (1997), 112 C.C.C. (3d) 289 (S.C.C.), a decision on this issue is not required for this ruling, nor does it appear to be necessary for future rulings as it is not contemplated that there will be any further applications involving lost or destroyed evidence. If and when such an issue does arise, I will provide a ruling. Conclusion [12] The erasure of the tapes of the intercepted communications of Talwinder Singh Parmar constitutes a breach of Mr. Bagri's right to disclosure under s. 7 of the Charter. [13] By way of remedy under s. 24(1) of the Charter, all accused are granted leave to raise this matter in the trial. [14] As earlier held, all remaining information in the possession of C.S.I.S. is subject to disclosure by the Crown in accordance with the standards set out in R. v. Stinchcombe, supra. "I.B. Josephson, J." The Honourable Mr. Justice I.B. Josephson