R. v. Darwish (W.H.),

• Jurisdiction: Ontario
• Judge: Doherty, MacPherson and Armstrong, JJ.A.
• Neutral Citation: 2010 ONCA 124
• Citation: (2010), 258 O.A.C. 272 (CA),2010 ONCA 124,100 OR (3d) 579,252 CCC (3d) 1,[2010] OJ No 604 (QL),258 OAC 272,100 O.R. (3d) 579,[2010] O.J. No 604 (QL),258 O.A.C. 272,(2010), 258 OAC 272 (CA)
• Date: 17 December 2009
• Court: Court of Appeal (Ontario)

R. v. Darwish (W.H.) (2010), 258 O.A.C. 272 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. FE.069

Her Majesty the Queen (appellant) v. Wajde Hassan Darwish (respondent)

(C47553; 2010 ONCA 124)

Indexed As: R. v. Darwish (W.H.)

Ontario Court of Appeal

Doherty, MacPherson and Armstrong, JJ.A.

February 16, 2010.

Summary:

The accused, a chief financial officer, was charged with one count of fraud and several counts of forgery for defrauding the company he worked for between 2000 and 2002. In laying the charges in 2005, the police relied on a forensic audit prepared by the accused's employer. In 2007, the trial judge found that the Crown's failure to have a second forensic audit produced that conformed to the accused's reasonable requests constituted a violation of the Crown's "duty to investigate", and precipitated a denial of the accused's right to make full answer and defence. Further, the trial judge found that the Crown had undertaken before the pre-trial judge to obtain a second forensic audit that was "full and independent" and had then failed to do so. While the trial judge rejected the accused's argument that his right to be tried within a reasonable time had been breached (Charter, s. 11(b)), she held that if she were to order the full forensic audit to which the defence was entitled the additional delay would push the case beyond constitutionally tolerable time limits. Consequently, the trial judge held that the only appropriate remedy for the breach of the accused's right to make full answer and defence was a stay. The Crown appealed.

The Ontario Court of Appeal allowed the appeal, set aside the stay of proceedings and directed a new trial.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In 2005, in reliance on a forensic audit prepared by an employer, the accused, the chief financial officer, was charged with fraud and forgery which occurred between 2000 and 2002 - In 2007, the trial judge found that a failure by the Crown to have a second forensic audit produced as requested by the accused violated the Crown's "duty to investigate" and precipitated a denial of the accused's right to make full answer and defence - Further, the trial judge found that the Crown had breached a pre-trial undertaking to obtain a second forensic audit that was "full and independent" - While the trial judge rejected the accused's argument that his right to a speedy trial had been breached (Charter, s. 11(b)), she held that if she were to order the full forensic audit to which the defence was entitled the additional delay would result in a s. 11(b) violation - Consequently, the only appropriate remedy was a stay - The Crown appealed - The Ontario Court of Appeal allowed the appeal - The court held that the Crown was not under any duty, constitutional or otherwise, to obtain the forensic audit demanded by the defence - Its failure to do so did not result in any constitutional violation of the accused's right to make full answer and defence - Furthermore, there was no evidence from which the trial judge could conclude that the Crown undertook to obtain the "full and independent" audit demanded by the defence - Consequently, she was wrong in law to hold that the Crown breached that undertaking - Finally, had the trial proceeded on its merits as scheduled, there would have been no violation of s. 11(b) of the Charter.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The Ontario Court of Appeal stated that "An accused does not have a freestanding constitutional right to an adequate investigation of the charges against him or her ... Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in-and-of-themselves constitute a denial of the right to make full answer and defence" - See paragraph 29.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The Ontario Court of Appeal stated that "An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target. As Hill, J., put it in R. v. West, [2001] O.J. No. 3406 (S.C.), at para. 75, the defence cannot, through a disguised-disclosure demand, 'conscript the police to undertake investigatory work for the accused' ... That is not to say that the police and the Crown should not give serious consideration to investigative requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorial authorities that carry the ultimate responsibility for determining the course of the investigation. Criminal investigations involve the use of public resources and the exercise of intrusive powers in the public interest. Responsibility for the proper use of those resources and powers rests with those in the service of the prosecution, and not with the defence. Nor does the disclosure right, as broad as that right is, extend so far as to require the police to investigate potential defences ..." - See paragraphs 30 and 31.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - [See first Civil Rights - Topic 3133 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See all Civil Rights - Topic 3133 ].

Criminal Law - Topic 129

Rights of accused - Right to discovery or production (disclosure) - [See all Civil Rights - Topic 3133 ].

Criminal Law - Topic 130

Rights of accused - Preparation of defence - Duties of Crown and police - [See all Civil Rights - Topic 3133 ].

Cases Noticed:

R. v. Barnes (E.R.), [2009] O.A.C. Uned. 282; 2009 ONCA 432, refd to. [para. 29].

R. v. West (R.G.), [2001] O.T.C. 711 (Sup. Ct.), refd to. [para. 30].

R. v. Schmidt (B.S.) (2001), 146 B.C.A.C. 111; 239 W.A.C. 111; 151 C.C.C.(3d) 74 (C.A.), refd to. [para. 30].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154, refd to. [para. 31].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 33].

R. v. Daley (J.E.), [2008] B.C.A.C. Uned. 90; 2008 BCCA 257, refd to. [para. 34].

R. v. Brown (L.A.) et al. (1998), 107 O.T.C. 281; 164 C.R.R.(2d) 1 (Gen. Div.), refd to. [para. 36].

R. v. Ahluwalia (B.) (2000), 138 O.A.C. 154; 149 C.C.C.(3d) 193 (C.A.), refd to. [para. 37].

R. v. Schuldt, [1985] 2 S.C.R. 592; 63 N.R. 241; 38 Man.R.(2d) 257, refd to. [para. 47].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 55].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81, refd to. [para. 62].

Counsel:

Christopher Webb, for the appellant;

Phil Downes, for the respondent.

This appeal was heard on December 17, 2009, by Doherty, MacPherson and Armstrong, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by Doherty, J.A., on February 16, 2010.