R. v. Malik, Bagri and Reyat

2002BCSC0484 Citation: R. v. Malik, Bagri and Reyat Date: 20020409 2002 BCSC 484 Docket: CC010287 CC010288 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

HER MAJESTY THE QUEEN

AGAINST

RIPUADMAN SINGH MALIK

AJAIB SINGH BAGRI

AND INDERJIT SINGH REYAT RULING RE BREACH OF MR. BAGRI'S RIGHTS UNDER SECTION 7 OF THE CHARTER

OF THE HONOURABLE MR. JUSTICE JOSEPHSON Counsel for the Crown: J.C. Bellows, Q.C. R.W. Cairns, Q.C. A.M. Loyst, K. Andani Counsel for Ripudaman Singh Malik: E.D. Crossin, Q.C. S.M. Coristine Counsel for Ajaib Singh Bagri: M. Code R.C. Peck, Q.C. Counsel for Inderjit Singh Reyat: G.D. McKinnon, Q.C. P.J. Wilson, Q.C. D.J.C. Martin Dates and Place of Hearing: March 18-21 and 26, 2002 Vancouver, B.C. A. The Nature of the Matter Before the Court [1] The applicant, Mr. Bagri, applies for a declaration that his s. 7 Charter rights were violated as a result of late disclosure by the Crown, and for certain consequent remedies under s. 24(1) of the Charter. [2] After submissions on this application were completed, but prior to the release of these reasons, Mr. Bagri raised a further disclosure issue. That matter has been incorporated into this ruling. B. Preliminary Issue -- The Necessity of an Evidentiary Hearing [3] At the outset, an issue arose as to whether I should require viva voce evidence despite affidavit evidence having been filed by the Crown. I ordered that Sgt. Blachford testify and these are my reasons. Background [4] The threshold for embarking on an evidentiary hearing into an alleged Charter breach is low. As set out in R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.), the applicant need only demonstrate a reasonable basis upon which the Court could find a breach

of the Charter. [5] A voir dire regarding the admissibility of evidence of Mr. Bagri's alleged involvement in the attempted murder of Tara Singh Hayer (the "Hayer voir dire") was scheduled to commence on March 18, 2002. On March 13, 2002, after both parties had filed their written submissions, the Crown first disclosed a number of additional relevant Indo-Canadian Times articles authored by Mr. Hayer. These articles, the Crown says, provided the motive for the attempted murder. The Crown then filed a supplemental written brief advancing a new legal basis on which to support the admissibility of the Hayer evidence. Position of Mr. Bagri, Mr. Malik and Mr. Reyat [6] In his submissions on the application for viva voce evidence in the hearing, Mr. Bagri provided a detailed history of his dealings with the Crown regarding the Hayer voir dire. He submitted that the record amply demonstrated a prima facie breach of his s. 7 Charter rights sufficient to warrant the hearing of viva voce evidence to determine the extent of the breach and the appropriate remedy under s. 24(1). Both Mr. Malik and Mr. Reyat supported Mr. Bagri's position in this regard. Position of the Crown [7] The Crown countered with its own chronology concerning the production of the new disclosure, and, at the Court's invitation, provided affidavit evidence from the relevant Crown counsel and police officers to clarify

certain factual issues. It took the position that hearing viva voce evidence would have no practical value as the Court already had all the relevant information. The Crown submitted that it had not deliberately withheld the articles at issue and had disclosed them in a timely manner upon becoming aware of their existence and content. [8] The Crown further submitted that Mr. Bagri had not demonstrated that he had suffered any actual prejudice arising out of the late disclosure which could not be remedied by an adjournment of the Hayer voir dire. Conclusion [9] R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.), R. v. Carosella (1997), 112 C.C.C. (3d) 289 (S.C.C.), and R. v. La (1997), 116 C.C.C. (3d) 97 (S.C.C.), stand for the following propositions: 1. The right to disclosure is one component of the right to make full answer and defence protected by s. 7 of the Charter.

2. The right to disclosure includes the right to timely disclosure.

3. A breach of the Crown's disclosure obligations constitutes a breach of an accused's s. 7 rights without a requirement to demonstrate additional prejudice. Rather, the extent to which a Charter violation causes prejudice to an accused is a matter to be considered at the remedy stage of the analysis. [10] Mr. Bagri demonstrated that the Crown's untimely disclosure of material relevant to the Hayer voir dire constituted a prima facie breach of his s. 7 right to full and timely disclosure. While the Crown tendered affidavit evidence addressing the circumstances surrounding the late disclosure, there remained certain discrepancies and ambiguities which led me to conclude that viva voce evidence was required for an appropriate resolution of the issues. C. The Issues (1) Was there a breach of Mr. Bagri's s. 7 Charter rights? (2) If yes, what is the appropriate remedy under s. 24(1)? Factual Background [11] As stated above, the Hayer voir dire was scheduled to commence on March 18, 2002. Until the discovery of the additional articles, the Crown sought to lead the Hayer evidence at trial on the issue of motive. At the heart of the alleged motive for the attempted killing of Mr. Hayer were a series of articles and editorials written by him and published in the Indo-Canadian Times. The primary issue on the Hayer voir dire will be whether the probative value of the evidence outweighs

its prejudicial effect. [12] On March 13, 2002, the Crown wrote to the defence informing them that they had received additional undisclosed articles from the R.C.M.P. the previous day which were relevant and changed the "complexion of the question of the admissibility of the Hayer evidence." Copies of the articles and translations were enclosed with the letter. [13] In this hearing, the Crown produced a series of affidavits describing the circumstances which led to the discovery and production of the previously undisclosed articles. As well, the central witness on the disclosure issue, Sgt. Blachford, offered viva voce evidence. [14] This is the history of events leading to the application: (1) In a letter dated September 27, 2001, the Crown stated that they intended to seek a voir dire to determine the admissibility of evidence of Mr. Bagri's alleged involvement in the attempted murder of Tara Singh Hayer; (2) On December 14, 2001 and again on January 17, 2002, I fixed February 18, 2002 as the date to begin hearing pre-trial applications; (3) On or about February 4, 2002, counsel agreed that the Hayer voir dire would commence on March 18, 2002. Based on an understanding between the parties, the Crown was to file their materials by March 4th, with the defence to file theirs by March 11th; (4) On or before March 5, 2002, the Crown contemplated advancing a new legal theory

regarding the admissibility of the Hayer evidence; (5) That same day, the Crown asked Sgt. Blachford whether any additional Hayer newspaper articles existed which the police had not yet provided to the Crown; (6) Later that same day, Sgt. Blachford located a small number of such articles. Coincidentally, Cst. Green approached Sgt. Blachford at the same time with a small binder full of such articles that had been sitting in his office. Upon a quick review, Sgt. Blachford determined that these articles as well had not been provided to the Crown. The total undisclosed material amounted to a stack of articles between one and two inches thick; (7) On March 6, 2002, Sgt. Blachford informed the Crown that he had located previously undisclosed articles and would provide them with copies; (8) Due to illness of Crown Counsel, the Crown filed their written submissions regarding the admissibility of the Hayer evidence four days late on March 8, 2002, making no reference to the newly discovered material (which they had not yet reviewed); (9) It was not until March 12, 2002, that Sgt. Blachford provided the Crown with copies of the additional articles; (10) Mr. Bagri filed his written submissions on the Hayer voir dire on March 13, 2002; (11) On that same day, after those submissions were filed, the Crown first made Mr. Bagri aware of the newly discovered articles; (12) The articles are

clearly relevant to the Hayer voir dire and caused the Crown to add a new theory for the admissibility of the Hayer evidence in supplemental submissions. [15] The previously undisclosed evidence came into the possession of police in 1997 and, inexplicably, was never provided to the Crown. However, in May 1997, Mr. Hayer informed Sgt. Blachford of the existence of one of the key undisclosed newspaper articles and that information was passed on to the Crown. [16] As a result of the hearing into the alleged breach of Mr. Bagri's s. 7 Charter rights, the Hayer voir dire was adjourned to April 3, 2002. Prior to commencing on April 3rd, Mr. Bagri alerted the Court to the fact that the defence had received further relevant disclosure on March 28th and April 2nd that impacted on the voir dire. Additional documents were also provided to the defence on April 4th, during the second day of the Hayer voir dire. [17] In summary, the newly discovered disclosure consisted of police notes and RCMP continuation reports regarding a significant witness in relation to the anticipated evidence to be relied upon by the Crown on the Hayer voir dire. A considerable portion of this material related to contact with this witness from October 4, 2001 to March 4, 2002. Sgt. Schneider testified that the Crown was made aware of the results of his ongoing dealings with the key witness, but that his notes and

the continuation reports were not provided to the Crown until he received a request for them in late March. It was apparent from the evidence that the Crown only made efforts to obtain these relevant documents from the police after receiving a request for them from the Defence. Was there a breach of Mr. Bagri's s. 7 Charter rights? Position of Mr. Bagri [18] Mr. Bagri submits that there have been two separate breaches of his s. 7 Charter rights: (1) the late disclosure of the Hayer articles, and (2) the failure of the Crown to inform him of the fact of the undisclosed material when it was first brought to their attention by Sgt. Blachford on March 6, 2002. [19] Mr. Bagri submits that the Crown and the police are to be viewed as a collective for the purposes of s. 7 and it matters not whether the conduct giving rise to the Charter breach was occasioned by Crown or police. [20] The effect of the late disclosure, he submits, impacts not only his preparation for the Hayer voir dire, but also his trial preparation generally. Disclosure of this material at this stage of the proceedings is well beyond the acceptable period for timely disclosure and therefore his s. 7 Charter rights to timely disclosure have been violated. [21] Mr. Bagri submits that the first breach of his s. 7 rights is made out solely on the basis of the late disclosure and is based on three factors: (i) the

material in question is relevant; (ii) the material is neither new nor the product of ongoing investigation; and (iii) the material was not disclosed to the defence until late in the day on March 13, 2002, a matter of days before the Hayer voir dire was to commence. [22] Mr. Bagri submits that the failure of the Crown to notify the defence as to the existence of the undisclosed material between March 6th and March 13th amounted to a second breach of his disclosure rights. The Hayer voir dire had been planned for months and was rapidly approaching. The defence was under a deadline to file their response to the Crown on the application and the Crown must have recognized that the previously undisclosed articles located by Sgt. Blachford were likely relevant. He submits that the Crown should have acted when they first learned of the new material rather than allow an inexcusable delay of a week for photocopying before they reviewed it. [23] Finally, Mr. Bagri submits that the disclosure of relevant material on the eve of and during the Hayer voir dire is not only a breach of his disclosure rights, but also constitutes Crown non-compliance with my disclosure order dated October 18, 2001. [24] Mr. Reyat and Mr. Malik support Mr. Bagri's submissions. All accused express a concern about the deterioration of their relationship with certain members of the Crown's office and the effect

that this is having on the administration of justice and the management of this difficult case. Position of the Crown [25] The Crown submits that Mr. Bagri has not met the burden of demonstrating that there has been a breach of his s. 7 rights due to the late disclosure. It does not agree that there has been a breakdown of the relationship between the Crown and the defence. It also submits that the Crown has complied with the formal order for disclosure made earlier in the proceedings. [26] The Crown acknowledges that the newly disclosed material is relevant and adds a new Crown theory regarding the admissibility of the Hayer evidence. However, the Crown argues that the initial determination of whether there has been a breach of an accused's s. 7 Charter rights in relation to disclosure is consequence and remedy driven. The Crown submits that a challenge based on non-disclosure generally requires a showing of actual prejudice to the ability of an accused to make full answer and defence and that a distinction should be drawn between late disclosure and non-disclosure. [27] The Crown points out that the initial failure of the police to provide the additional articles to the Crown was simply an oversight. It submits that the actions by the Crown and the police in the period between March 5th and March 13th were reasonable in light of the magnitude of the case. The Crown relies on

the case of R. v. Siemens, [1998] A.J. No. 1 (Alta. C.A.) for the general proposition that the Crown may reasonably delegate review of material for disclosure purposes to police. Thus, they were entitled to simply rely on the police to inform them or direct them to potentially relevant information. [28] The Crown submits that the delay in obtaining and reviewing the material located by Sgt. Blachford on the eve of the Hayer voir dire is the "reality of trial practice" and does not amount to negligence or a casual attitude on their part to their disclosure obligations. The Crown submits that their actions subsequent to being informed of the existence of the undisclosed material amounted to good trial practice, not a s. 7 breach. Because the Crown did not become aware that the undisclosed articles were relevant until they reviewed them on March 12, 2002, there was no factual or legal reason to inform the defence of their existence earlier. [29] With respect to the police notes and continuation reports most recently disclosed, Mr. Cairns, on behalf of the Crown, submitted that since the information concerning the key witness in these documents was consistent with previously disclosed documents, there was no duty on the Crown to make timely disclosure of the new material. Despite the fact that the information related to a period of almost six months, he submitted that since the

Crown had not been provided with the documents by the police, it had no obligation to provide them to the defence. The Law [30] The onus is on the accused to establish on balance that there has been a Charter violation. As earlier stated, the accused is merely required to demonstrate a breach of the disclosure obligation to constitute a breach of s. 7; there is no need to demonstrate that the breach occasioned any prejudice to the accused. In R. v. Carosella, supra, Sopinka J., writing for the majority, stated at p. 302: [31] This Court has consistently taken the position that the question of the degree of prejudice suffered by an accused is not a consideration to be addressed in the context of determining whether a substantive Charter right has been breached. The extent to which a Charter violation caused prejudice to the accused falls to be considered only at the remedy stage of the Charter analysis. [32] (See also R. v. La, supra, at p. 108) [33] With respect to what has been referred to as the issue of the divisibility of Crown and police, ultimate responsibility for the disclosure process rests with the Crown. The fact that the responsibility over certain tasks has reasonably been delegated to the police does not alleviate the requirement on the Crown to ensure compliance with their Stinchcombe disclosure responsibilities. For the purposes of s. 7, the knowledge of police

and Crown is deemed one and the same. (see: R. v. Witholt, [2001] B.C.J. No. 1429 (B.C.S.C.); R. v. Greganti (2000), 142 C.C.C. (3d) 31 (Ont. S.C.J.); R. v. Robinson, [1999] A.J. No. 1469 (Alta. C.A.); R. v. Court (1997), 36 O.R. (3d) 263 (Ont. Ct. (Gen. Div.)) Conclusion [34] The question whether there has been a breach of the right of an accused to timely disclosure is driven by the circumstances unique to each case. The requisite analysis is fact specific and contextual in nature. [35] Here, I find that there has been a breach of Mr. Bagri's rights to timely disclosure under s. 7 of the Charter. The breach of his right to disclosure is grounded in the failure of the Crown (including the police) to provide disclosure in a timely manner. [36] While recognizing that this case involves a massive amount of disclosure already provided, the fact that relevant articles were possessed by the police and not provided to the Crown and that a binder of relevant documents sat undisclosed in Cst. Green's office involves a level of carelessness which resulted in the breach. Had reasonable mechanisms been in place to track disclosure and the work of the interpreters translating the articles, the material at issue would almost certainly have been provided to the Crown and then disclosed in a timely manner to the defence. [37] That takes me to a review of the conduct of the Crown (including

the police) after discovery of the new material. I embark on this exercise fully cognizant of the dangers inherent in viewing conduct with hindsight and cognizant of the immense burden placed on the Crown in a case of these proportions. What constitutes "timely" disclosure can vary widely, depending on the circumstances in each case. [38] Here, there were a number of circumstances known to the Crown which dictated a near immediate review and disclosure of the newly discovered evidence in order to constitute timely disclosure: 1. The charges facing the accused are extremely serious; 2. Mr. Bagri has been in custody since October of 2000; 3. The Crown put their mind to the issues regarding the admissibility of the Hayer evidence no later than September of 2001; 4. The Hayer evidence is significant and the week of March 18 was set aside for determination of its admissibility; 5. The date of this hearing was known for a considerable period of time and there was an understanding amongst the parties regarding the serving and filing of materials in advance of the voir dire; 6. The issue of the Crown's disclosure obligations was earlier the subject of an application, which resulted in an Order that the Crown comply with their obligations to make full and timely disclosure; 7. On March 6, twelve days before the scheduled hearing and shortly before the filing dates for that hearing, Sgt.

Blachford informed the Crown that he had discovered further newspaper articles of the type the Crown was seeking in relation to the hearing, as requested by the Crown the day before; and 8. Despite the looming dates for a significant hearing, the Crown allowed six days to transpire without even a "heads up" courtesy communication to the defence before acquiring and reviewing the material. [39] In these circumstances, I find that the Crown office as well acted with a lack of reasonable diligence in their efforts to review and disclose this newly discovered and likely relevant material. [40] I referred in passing above to the lack of a "courtesy" communication. Courts must be slow to step outside legal issues and embark on a venture of what does and does not constitute good practice by counsel. I simply observe, from my admittedly limited perspective, that such a call likely would have been conducive to a more prompt and efficient resolution of this issue and alleviated some of the tension and animosity that appears to have arisen between the parties. Without a reasonable degree of mutual respect and trust between counsel, a difficult trial can become much more so. I can only respectfully request that counsel, as Officers of the Court, take whatever reasonable steps are required to restore that appropriate level of trust and respect. [41] With respect to the documents that were

disclosed on the eve of and during the Hayer voir dire, this also amounted to a breach of Mr. Bagri's s.7 Charter rights. The police notes and continuation reports are clearly relevant and ought to have been provided to the defence well in advance. This should not be interpreted as a finding that police notes and continuation reports are to be provided to the defence on an immediate or daily basis without review by the Crown. However, in this case relevant documents created over a six month period simply sat in police files without being provided to the Crown or the defence. I had already made a ruling requiring the Crown to make continuous disclosure of this very material. The fact that the Crown believes that the overall effect of the undisclosed material is consistent with what they believe to be the defence's understanding of the issues involved is not, of course, the requisite test for disclosure under Stinchcombe. [42] I pause to address an issue that arose during the course of submissions. In his submissions that viva voce evidence was required in this application, Mr. Code for Mr. Bagri suggested that there was an appearance that the conduct of Mr. Cairns in this instance could be characterized as ambush, sharp practice and the misleading of counsel. He invited me to "send a message" and "reprimand" a member of the Crown's office if, after hearing the evidence, the

facts bore out this appearance. [43] Although I find that a breach of Mr. Bagri's s. 7 rights did occur, I am satisfied that no member of the Crown's office acted in a manner that could be characterized in that fashion. What is the Appropriate Remedy Pursuant to s. 24(1)? Position of Mr. Bagri, Mr. Malik and Mr. Reyat [44] Mr. Bagri submits that the appropriate remedy for the breach of his s. 7 rights is closely linked to the gravity and seriousness of the violation. He submits that this incident of late disclosure is part of a pattern of Crown misconduct relating to their disclosure obligations. He points to an earlier ruling in this trial where I stated that there existed an appearance of non-timely disclosure and non-disclosure warranting judicial intervention. [45] Mr. Bagri submits that the failure of the police to maintain adequate procedures for tracking disclosure and providing it to the Crown during the investigative stage of the proceedings amounts to a high degree of negligence on their part. The evidence reveals that the police did not have a system in place to keep track of work being done by translators and a highly relevant binder of documents was simply left sitting in Cst. Green's office for a number of years without being brought to the attention of the Crown. [46] Pointing to the time period in March 2002 after the police located the articles, Mr. Bagri

submits that the Crown had a duty to act immediately when it became aware of the existence of the additional newspaper articles. He submits that the Crown and the police have collectively failed in their duties to be diligent and to communicate with the defence. Instead of recognizing the obvious urgency of the situation, the Crown waited almost a week until the police provided them with photocopies of the relevant materials. The materials were not voluminous and there was no excuse or explanation offered as to why they could not have been immediately copied, reviewed and disclosed to the defence. At the time the materials were located, the Hayer voir dire could still have been salvaged and the submissions being prepared by counsel could have incorporated the new information and legal argument. Instead, the motion dates were lost and a considerable period of time was wasted preparing submissions that must now be significantly amended. [47] In addition, Mr. Bagri submits that the Crown's failure to pick up the telephone and advise the defence of the existence of the undisclosed materials amounted to unacceptable conduct on their part. The absence of communication has resulted in an atmosphere of mistrust between the parties which is detrimental to the proper administration of justice. He suggests that a secretiveness and casualness in the prosecution's approach to their

disclosure obligations has been demonstrated which is unacceptable in light of past history in this case. [48] Finally, Mr. Bagri submits that the late disclosure has had a three-fold impact on his rights, including wasted preparation time by his counsel, the delay of the pre-trial application with its possible effect on the trial schedule and the climate of mistrust between the Crown and the defence that has been created. [49] Mr. Bagri submits that the breach of his rights was relatively serious, but candidly concedes that nothing that has happened to date will have an effect on the fairness of the trial. With respect to the appropriate remedy, Mr. Bagri asks for the following: (i) that my reasons herein reflect the ongoing disclosure problems in the case and that future disclosure violations will be at the Crown's peril, with the possibility of more serious remedies; (ii) an Order that all materials to be relied on in motions or related events be filed two weeks in advance of the motion date, except as otherwise agreed by the parties or with leave of the Court; and (iii) an Order that, in the event that the Crown discovers new or previously undisclosed material, it forthwith disclose the fact of the existence of such material to the defence, the nature of the material, and whether it intends to withhold or disclose it at some time in the future. [50] Mr. Reyat supports Mr.

Bagri's submissions with respect to the factors which the Court should consider when crafting an appropriate remedy under s. 24(1) of the Charter and suggests that the following order be made: (i) on a pre-trial application for the admissibility of evidence on a particular issue, the Crown is required, within seven (7) days of the fixing of the hearing date, to state its position in writing to the defendants as to how it intends to use that evidence, if admitted, in relation to each defendant; and (ii) in the absence of leave of the Court, the Crown is not entitled to change its position or rely upon evidence that was not disclosed before the delivery of the written notice. [51] Mr. Malik, in supporting Mr. Bagri, suggests that the Court issue a direction that the Crown disclose the existence of any possibly relevant information and the general nature of it when it knows of its existence. Further, Mr. Malik requests that the Crown and the R.C.M.P. be directed to answer the question as to whether they are satisfied that all information that in any way relates to this investigation or the credibility of any witness has been made available to the Attorney General. In this regard, he suggests that a protocol be developed by the Attorney General to review the disclosure situation and that he be informed as to how relevance is defined to the R.C.M.P. and how it is conveyed to them.

He submits that since this is an extraordinary case, extraordinary obligations on the Crown are warranted. Position of the Crown [52] The Crown submits that any remedy to be imposed for a s. 7 breach of the Crown's disclosure obligations must be responsive to the nature of the violation. It suggests that an adjournment of the Hayer voir dire is the only appropriate remedy in the circumstances, a remedy already given effect to. [53] The Crown submits that there is no need to send a message to their office as they are aware of and are complying with their ongoing disclosure obligations. The defence, the Crown suggests, has simply blown this situation out of proportion and that countless disclosure issues are being resolved between the parties without the need for judicial intervention. Similarly, the Crown submits that it is not necessary for the Court to craft a direction that the Crown notify the defence immediately upon learning of the existence of any new or undisclosed information. The Crown, aware of its ongoing obligation, will continue to do so. [54] The Crown is not opposed to a set schedule for the serving and filing of materials and indicates that for the most part all parties have been abiding by the informal arrangement that was agreed to. [55] With respect to the requirement that the Crown notify the defence as to the intended use of evidence against the various

accused, the Crown submits that this is impractical and that the eventual use of evidence is often something that cannot be assessed until towards the end of trial. Evidence and the inferences to be drawn from that evidence may evolve in the context of the case as a whole. [56] With respect to the call for the Crown to provide a guarantee that they are satisfied that everything has been disclosed at this stage, the Crown indicated that they have recently met with a senior member of the RCMP who has agreed to conduct a comprehensive audit of everything in their possession on a priority basis. The Crown accepts that the binder in Cst. Green's office should not have slipped through the cracks and is hopeful that this disclosure audit will alleviate any concerns that have arisen out of this matter. Conclusion [57] Where there has been a violation of a right under the Charter, s. 24(1) confers the power to order, "such remedy as the court considers appropriate and just in the circumstances." [58] While the events that resulted in a breach of Mr. Bagri's s. 7 rights occurred at a time when there will be no impact on trial fairness, I do find the breach to be relatively serious. The mechanisms in place to ensure timely disclosure of relevant material were obviously inadequate. The rescheduling of the Hayer voir dire may impact the trial schedule, a significant effect as the accused

are in custody. Valuable court time and defence preparation time for the voir dire and the trial itself has been lost. A proper working relationship between the parties, so essential in a complex and massive trial such as this, has been rendered tenuous, though hopefully not beyond repair. [59] While hesitant to impose a rigid timetable for the serving and filing of materials, I am of the view that such a direction may assist in the management of the remaining pre-trial applications. The party advancing an application will be required to file the materials on which they will be relying no later than 14 days prior to the commencement of the application. The respondent will file their materials no later than 7 days prior to the hearing date. These dates are subject to change on the basis of agreement between the parties or with leave of the Court. [60] In accordance with the Crown's existing disclosure obligations under Stinchcombe, the Crown will inform the defence of the discovery of any new or previously undisclosed material in a timely manner, keeping in mind the subjective nature of the word "timely". By implication, this will involve the defence being made aware of the nature of that material as then known to the Crown and the Crown's intention regarding its disclosure when that too is known. [61] I decline to impose a timetable requiring the Crown to state its position

regarding the intended use of specific evidence within seven days of the fixing of a hearing date. The defence will be made aware of the Crown's position no later than the time that they are required to file their materials in accordance with the above timetable. [62] With respect to the suggestions by Mr. Malik, I will not require the Crown to implement any specific protocol in dealing with disclosure issues or provide the defence with an explanation of the internal dealings between the Crown and the R.C.M.P. The responsibility of the Crown to comply with their ongoing disclosure obligations is clear and it would be inappropriate for the Court to intervene in the Crown's discretion to that degree. Summary [63] The Crown's disclosure of the additional Indo-Canadian Times articles was untimely and constituted a breach of Mr. Bagri's right to timely disclosure under s. 7 of the Charter. By way of remedy, I order that: 1. A party advancing an application will be required to file the materials upon which they rely no later than 14 days prior to the commencement of the application. The respondent will file their materials no later than seven days prior to the hearing date. These dates are subject to change by agreement of the parties or with leave of the Court; 2. In accordance with its ongoing disclosure obligations under Stinchcombe, the Crown will inform the defence of the discovery of any new or previously undisclosed material in a timely manner. The defence will be informed of the nature of that material as then known to the Crown and the Crown's intention regarding its disclosure when that too is known. "I.B. Josephson, J." The Honourable Mr. Justice I.B. Josephson