R. v. Port Chevrolet Oldsmobile Ltd.

2007 BCSC 2019 R. v. Port Chevrolet Oldsmobile Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Port Chevrolet Oldsmobile Ltd., 2007 BCSC 2019 Date: 20070827 Docket: X065157 Registry: New Westminster Regina v. Port Chevrolet Oldsmobile Ltd., Michael Wolfe and Sameer Mapara and Jay Grant Before: The Honourable Madam Justice Gill Oral Ruling on Renewed Application for Judicial Stay of Proceedings Counsel for the Crown: L.J. Mackoff F. Mohamed Counsel for the Accused Port Chevrolet Oldsmobile Ltd. and Michael Wolfe: K.M. Eldred K.M. Drolet Place and Date of Trial/Hearing: Vancouver, B.C. August 27, 2007 Place and Date of Judgment: New Westminster, B.C. August 27, 2007 [1] THE COURT: Before turning to the issues relating to sentencing, it is necessary to deal with the renewed application for a stay of proceedings. [2] As before, the statement of Jay Grant made in November 2003 to CRA investigators is referred to, the submission being that the Crown's case changed dramatically with the disclosure of his statement at the end of 2006. At the time of the earlier application, the statement was not before the court. That circumstance has obviously changed and, as well, Mr. Grant testified at trial although he was not cross-examined on this statement. Rather, the statement was referred to in its entirety during one of the many issues raised in the absence of the jury. [3] The evidence of Mr. Grant was of significance primarily

because of conversations that he had with Mr. Wolfe. While the defence describes the dramatic change as a shift in emphasis from the documents to the evidence of Mr. Grant, it is acknowledged that evidence of the size and frequency of the transactions remained significant. Such evidence came almost entirely from the documents and not from the testimony of Mr. Grant. [4] When the application was renewed, the defence placed particular reliance on two authorities, R. v. Court and R. v. Hall, both of which were also referred to on the earlier application. Again reference was made to the conclusion of Glithero J. in Court at para. 136: [136] Given the result in the preceding ruling, and the lengthy review of the history of this matter and of the evidence contained therein, my reasons on this application are going to be brief. Additionally, the reasons will be short because in my estimation, supported by the position taken by counsel, this case does not permit the usual type of section 11(b) analysis to be made. Put simply, the case as it now exists is radically different than the state in which it existed at the time of the preliminary, at the time of the first trial, and during the appeal. The deliberate non-disclosure by agents of the state of so much evidence, coupled with the unexplained and negligent loss of so much original material, all exaggerated by the passage of time

since these men were charged leads to an inability on my part to perform the traditional type of analysis. The right to know the case one has to meet, and the right to share in the proceeds or fruits of the state investigation, embodied in the principles of disclosure, are so fundamental to a fair trial that where those elements have been thwarted, by state action, it becomes impossible to analyze in any practical way the length of the delay in this matter and the reasons for any particular period of that delay. Any consideration of the time period encompassed up to the committal, and of the time period up to the original conviction is impossible as the steps taken and the time spent all occurred in ignorance of the true nature of the case. Any "time line" analysis of the history of this case, and of the various blocks of time during that history, becomes impossible as I cannot offset what amounts of time would have been required in any event had the case unfolded properly. The nature of the case has changed so drastically by virtue of what has now been disclosed, that it is impossible to predict with any accuracy what amount of time would have been necessary for the scheduling of a proper preliminary, the holding of a proper preliminary, or the scheduling or conduct of a trial involving a case as it now exists. [5] I am in agreement with the submission of Crown counsel that in

the circumstances of this case, which are quite materially different from those in Court, there is no reason to abandon what has been described as the usual or traditional type of analysis. I also agree with the Crown that the additional delay flowing from the late disclosure of the statement was modest. Although the evidence of Mr. Grant was of significance, I do not believe that the nature of the case changed so dramatically that any timeline analysis is impossible. The case changed, but in my view it is more accurate to describe the change as being that the evidence now came not only from documents but also from the mouth of Mr. Grant. [6] I would also note that it was the evidence of Mr. Martin that had the statement been disclosed in what he described as a timely fashion, trial by jury would have been elected. In fact, although the Crown did not consent, it effectively acknowledged that an order permitting a jury should be made and a trial by jury was ordered. [7] I therefore decline the renewed application. "Gill J."