



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gravesande, 2015 ONCA 774

DATE: 20151113

DOCKET: C58782

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Deryk Gravesande

Appellant

Marie Henein, Scott Hutchison and Matthew Gourlay, for
    the appellant

Luc Boucher and Jim Marshall, for the respondent

Heard: October 8, 2015

On appeal from the conviction entered by Justice Wayne G.
    Rabley of the Ontario Court of Justice on February 13, 2014.

Pardu J.A.:

[1]

The appellant, an experienced defence lawyer, was convicted of smuggling
    drugs into the Toronto Jail for a former client in the course of a professional
    visit.

[2]

A correctional officer, Darryl Beaulieu, found the drugs on the
    appellants former client, Joacquin Rowe. Beaulieu claimed that he searched
    Rowe before and after the appellants visit. He claimed that he did not find
    any drugs on Rowe during the first search; however, that first search did not
    comply with the prisons protocols and, significantly, Beaulieu did not conduct
    a full strip search. During the second search, drugs were found in a sock
    hidden in Rowes underwear.

[3]

The Crown alleged that the appellant was the one who provided the drugs
    to Rowe. The appellant denied the charge. Rowe did not testify nor did he
    provide any information about how he acquired the drugs.

[4]

The Crowns case against the appellant was circumstantial. Beaulieu and
    Nicu Sava, another correctional officer on duty on the night of the appellants
    visit, were the Crowns most significant witnesses. Ultimately, the trial judge
    accepted the evidence of the Crown, including that of Beaulieu and Sava. Consequently,
    the trial judge rejected the appellants evidence, and convicted him.

[5]

For the reasons that follow, I conclude that the trial judges verdict
    must be set aside. I come to that conclusion for two reasons. First, a review
    of the trial judges reasons demonstrates that he applied a stricter level of
    scrutiny to the appellants evidence than to the prosecution witnesses. Second,
    the trial judge erred in concluding that certain third-party records requested
    by the appellant were not likely relevant to an issue in the trial and, on that
    basis, refusing to review documents that had already been produced.

A.

background in brief

[6]

The appellant had represented Rowe in a trial which ended with Rowe
    being found guilty. Rowe had asked the appellant to represent him on a retrial
    for the same charges. According to the appellant, he was visiting Rowe to let
    him know that the appellant would not be able to represent him.

[7]

The appellant arrived at the Toronto Jail around 7:10 p.m. He passed
    through security. The two guards on duty at the front desk spent about two
    minutes with him, but noticed nothing unusual  in particular, no unusual smell
    despite one of them being within 10 feet of the appellant.

[8]

After passing through security, the appellant proceeded to the second
    floor where he was met by Beaulieu. At trial, Beaulieu testified that he
    immediately noticed a strong smell of cologne and what I thought was marijuana
    mixed in with that smell. Sava also testified that he noticed an odour of
    marijuana when the appellant arrived on the second floor  despite the fact
    that he was not in the hallway but at a table reserved for guards located at
    least 10 or 20 feet away.

[9]

After directing the appellant to an interview room, Beaulieu contacted
    his supervisor, conveyed his suspicion that the appellant was carrying drugs,
    and asked for instructions. Beaulieus supervisor told him to follow the
    Standing Orders. The Standing Orders required a strip search of the inmate and
    a search of the interview room, before and after every professional visit. As
    will be discussed in greater detail later on, the correctional officers on duty
    did not comply with the Standing Orders.

[10]

Beaulieu
    retrieved Rowe and took him to a room out of range of surveillance cameras in
    order to search him. Beaulieu had asked another correctional officer, William
    Greene, to be present for the search. However, Greene left shortly after the
    search began. Video surveillance played at trial showed Beaulieu briefly
    handling Rowes orange jumpsuit. Beaulieu gave the jumpsuit back to Rowe within
    three or four seconds of receiving it. Rowe was in the room for 75 seconds.

[11]

During
    his examination-in-chief at trial, Sava testified that the interview room had
    been searched. However, when confronted with evidence to the contrary, he
    admitted that he had not searched the interview room.

[12]

The
    appellant spent about 35 minutes in the interview room with Rowe. Following the
    meeting, Rowe was searched again and a black sock containing eight cellophane
    wrapped packages of marijuana, a package of lidocaine, some rolled marijuana
    cigarettes, and a piece of cellophane with lubricant on it was found in his underwear.

B.

proceedings below

[13]

The
    appellant was charged with one count of trafficking.

[14]

Before
    his trial had begun, the appellant applied for production of certain
    third-party records that, broadly speaking, related to the frequency,
    prevalence, and nature of drug smuggling at the Toronto Jail. With the
    exception of some records not at issue on appeal, the trial judge dismissed the
    application. The application and the trial judges decision are discussed at
    greater length later on in these reasons.

[15]

At
    trial, the Crown called a number of employees working at the Toronto Jail, the
    investigating officer, and an expert witness who testified about the value of
    the drugs found on Rowe. The appellant testified on his own behalf and also
    called a character witness.

[16]

Ultimately,
    the trial judge decided that the appellant had smuggled the drugs found on
    Rowe. In coming to that decision, the trial judge reached the following
    conclusions as well:

·

The smell of marijuana identified by Beaulieu and Sava arrived
    with the appellant, and that there was no innocent explanation for it.

·

Rowe did not have the drugs on his person when he entered the
    interview room.

·

Rowe did not have the black sock hidden in his jumpsuit before
    the interview and Beaulieu had searched his underwear to make sure nothing was
    hidden there.

[17]

The
    trial judge stated that the appellant was a reasonable witness. However, the
    trial judge noted some weaknesses in his testimony and stated that the
    appellant was not compelling enough to leave the trial judge in a state of
    reasonable doubt. Ultimately, the trial judge accepted the Crowns evidence,
    rejected that of the defence, and convicted the appellant.

C.

Different Standards of scrutiny

[18]

This
    court has repeatedly stated that it is an error of law for a trial judge to
    apply a higher or stricter level of scrutiny to the evidence of the defence
    than to the evidence of the Crown:
R. v. Owen
(2001), 150 O.A.C. 378,
    at para. 3;
R. v. H.C.
, 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62;
R. v. Phan,
2013 ONCA 787, 313 O.A.C. 352 at para. 30. However, as
    noted by Laskin J.A. in
R. v. Aird
, 2013 ONCA 447, 307 O.A.C. 183, at
    para. 39:

The "different standards of scrutiny" argument is a
    difficult argument to succeed on in an appellate court. It is difficult for two
    related reasons: credibility findings are the province of the trial judge and
    attract a very high degree of deference on appeal; and appellate courts
    invariably view this argument with skepticism, seeing it as a veiled invitation
    to reassess the trial judge's credibility determinations.

[19]

For
    an appellant to successfully advance this ground of appeal, she must identify
    something clear in the trial judges reasons or the record indicating that a
    different standard of scrutiny was applied and something sufficiently
    significant to displace the deference due to a trial judges credibility
    assessments:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 at para. 59 (Ont.
    C.A.);
R. v. Rhayel
, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 98.

[20]

In
    this case, the appellant succeeds on this ground of appeal. The trial judges
    reasons demonstrate that he rejected the appellants testimony for speculative
    reasons, while failing to apply similar scrutiny to the evidence of the Crown.

(1)

Evidence of the appellant

[21]

The
    trial judge summarized the appellants evidence in his reasons convicting the
    appellant as follows:

[The appellant] testified on his own behalf. [The appellant] was
    at the time of the trial 61 years of age and had practised as a lawyer for 22
    years. He explained that he did not and would never have brought drugs into the
    Toronto Jail. He testified that every seasoned criminal lawyer knew that
    inmates were strip searched before and after visits with lawyers. According to
    Mr. Paul Copeland, [the appellant] is a lawyer who is a man of good reputation
    in the community as well as within the legal fraternity. Why, the question must
    be asked, would a lawyer who is in good standing, be so foolish as to take the
    chance to bring drugs into a jail and give them to a former client?

[22]

The
    trial judge indicated that he could not point to an area of [the appellants] examination
    in chief or cross-examination where I would say that his evidence was
    implausible or unbelievable. However, he continued [that] does not mean I
    found his evidence compelling enough to say I believed him or that it left me
    in a state of reasonable doubt.

[23]

The
    trial judge went on to note what he described as weaknesses in the appellants
    evidence. He identified the following weaknesses:

·

The appellant was suffering from depression and taking medication
    for his depression at the time of the visit.

·

The appellant could not remember his exact income when
    cross-examined on the issue. In respect of this issue, the trial judge stated
    that a sole practitioner not only runs a law practise, he runs a business. It
    is hard to believe that he has no idea of what his bottom line was.

·

The trial judge found the appellants explanation for the visit, specifically
    that he went to inform Rowe that he could not represent him, hard to accept. The
    trial judge stated that [on] its face, [the appellants] income seems to
    suggest that he might have room for other clients and that the appellant could
    have done the necessary steps to do a pre-trial and then set the matter once
    again for trial. The trial judge stated that the appellant would have had
    ample time to do the actual preparation given that the trial would likely be a
    number of months after the homicide case had been completed.

·

The trial judge also held against the appellant the fact that he
    was carrying a slender file. The trial judge stated that it is curious that [the
    appellant] would be working on a factum with respect to a serious fraud and
    have such a thin file with him. If he had said that he grabbed a piece of the
    file and put it into a file folder that would have made more sense.

[24]

With
    respect, it is difficult to see how any of the issues identified by the trial
    judge constitute weaknesses in the appellants testimony. The fact that, at
    the time of the visit, the appellant was suffering from depression does not
    make it more likely that he committed a criminal offence or was less credible
    at trial. The trial judges conclusions about a sole practitioners knowledge
    about his business, the appellants schedule, or the size of his file are all
    based on speculation.

[25]

The
    trial judge described the deficiencies in the appellants evidence as small
    weaknesses. He said he would not reject his evidence on the basis of these
    small issues but indicated they are a bit troublesome and cause me some
    concern. In respect of the size of the file brought to the jail, the trial
    judge stated that [again], this is a small issue and the explanation could be
    true, but it didnt give me the sense that I was hearing the actual facts when
    I was listening to [the appellant]. Reading the trial judges reasons as a
    whole, it is inescapable that he took these matters into consideration in
    evaluating the appellants credibility.

[26]

In
    addition to identifying the weaknesses noted above, the trial judge rejected
    the proposition that Rowe had the drugs secreted on his person and that
    Beaulieu did not see them, saying I agree with the defence proposition there
    are drugs in the Toronto Jail. In my mind that is not the issue and it is
    certainly not the relevant issue for me to determine.

[27]

The
    trial judge rejected the proposition that Rowe could have gotten the drugs from
    someone else based on his observations of the drugs which he described as
    somewhat smaller than eight golf balls. He said he looked closely at the
    photographs and concluded that there was no evidence that there are feces on
    them. There was no expert evidence that the packages would necessarily have
    been contaminated, or that such contamination would be visible in pictures. The
    trial judges observations were, once again, based on speculation and went
    beyond the acceptable scope of judicial notice.

(2)

Evidence of Beaulieu
    and Sava

[28]

As
    noted, Beaulieu met the appellant on the second floor after he was allowed into
    the Toronto Jail. Beaulieu testified that he immediately noticed a strong
    smell of cologne and what I thought was marijuana mixed in with that smell. Sava,
    who was assigned to the same floor, also testified that he noticed a smell of
    marijuana when the appellant arrived on the second floor.

[29]

However,
    when the appellant initially arrived at the Toronto Jail, he had to pass
    through security. There were two officers on duty at the front desk, and the
    appellant was within 10 feet of one of them. Neither noticed anything unusual,
    and in particular neither noticed any smell about the appellant.

[30]

Moreover,
    on cross-examination, Sava admitted that he was not in the hallway, but at a
    table reserved for guards some distance away. Sava continued maintaining that
    he could smell marijuana emanating from the interview room where the appellant
    was sitting waiting for Rowe.

[31]

Beaulieu
    contacted his supervisor for instructions, because he suspected that the
    appellant was carrying drugs. Beaulieus supervisor instructed him to follow
    the Standing Orders. The Standing Orders required a strip search of an inmate
    before and after every professional visit. The Standing Orders also required
    that the strip search be conducted in the presence of two officers, and required
    that the inmate undress completely and bend over to allow a visual
    inspection of the external surface areas of body cavities.

[32]

After
    Beaulieu retrieved Rowe, they proceeded to an interview room out of range of
    surveillance cameras for the search. Beaulieu had asked Greene to be present
    for the search. However, at trial, Greene admitted that he was not present for
    much of the search and did not remember how far the search got. Video
    surveillance recorded activity in the hallway, outside of the room where the
    search occurred. Greene did not go in that room. After Rowe entered the room, Beaulieu
    remained standing in the doorway and briefly handled Rowes orange jumpsuit. At
    this time, Greene wandered down the hallway and does not observe the rest of
    the search. Beaulieu gives the jumpsuit back to Rowe within three or four
    seconds and Rowe comes out of the room fully dressed.

[33]

At
    trial, Beaulieu initially claimed that he had conducted a strip search of
    Rowe. However, he conceded that the search was not in accordance with the
    standing orders. Beaulieu testified as follows about his usual manner of
    conducting a strip search:

I just want to make sure that I am satisfied that there is no
    weapons or contraband on them so I make sure that I have them take off their
    jumper, I have them take off their shoes, their T-shirt, their socks. I usually
    leave them in their boxers to keep dignity intact, and I always have them run
    their thumbs along the rim of their boxers, pull up boxers and run their thumb
    along, so if they are concealing anything I will be able to see it or it will
    fall out onto the floor.

Q. And is that what you did that day?

A. I
believe
so, yes. [Emphasis added.]

[34]

According
    to the video surveillance played at trial, this part of the search occupied
    three or four seconds. Rowe spent a total of 75 seconds in the room where the
    search occurred.

[35]

Sava,
    during his examination-in-chief, claimed that he searched the interview room
    before and after the visit. However, and only when confronted with the fact
    that both the logbook for recording searches and video recording of the room
    demonstrated the contrary, he admitted that he had not searched the room but
    just assumed that others had.

[36]

The
    trial judge noted that there were some issues with the evidence of both Sava
    and Beaulieu. The trial judge found that Sava shaped his evidence to make it
    seem as if he and his colleagues had followed the required protocols, and that
    he did so to protect his job. Moreover, the trial judge found that the
    correctional officers had not acted in accordance with all of the procedures
    that they were obligated to follow.

(3)

The trial judge
    applied uneven scrutiny

[37]

In
    spite of the problems the trial judge himself identified, and in sharp contrast
    to his focus on small weaknesses in the appellants evidence, the trial judge
    accepted the evidence of both Sava and Beaulieu. Even though he concluded that
    Sava had been shaping his evidence, the trial judge states that he was also
    telling the truth about the events that unfolded when [the appellant] arrived.
    As noted, Sava was forced to admit that he had not searched the interview room
    after he was confronted with evidence to the contrary. The trial judge
    characterized this retreat as follows: Once he realized that detail was
    important, Sava made realistic concessions.

[38]

In
    respect of Beaulieu, the trial judge noted that, it is difficult not to be a
    little critical of the failure of a correctional officer to follow procedures
    and that this error was further magnified by the fact that the correctional
    officers direct supervisor had instructed him to follow the standard procedures.
    However, the trial judge essentially dismissed these concerns, and stated that
    in fairness to [Beaulieu] this was a challenging situation that he could not
    have contemplated in advance and that [to] err is human.

[39]

In
    addition, and once again in sharp contrast to his approach towards the
    appellants case, the trial judge did not focus on or consider weaknesses in
    the Crowns case. For instance, the trial judge accepted Beaulieus evidence
    that he believed he had performed the kind of search he would usually have
    conducted, including making sure that Rowe was not hiding anything in his
    underwear. Beaulieu did not unequivocally say he conducted a search of Rowes underwear.
    However, in coming to this conclusion, the trial judge never considered the
    fact that Beaulieu spent a very small amount of time searching Rowe. He did not
    turn his mind to the fact that Greene, who was required to observe the search,
    just happened to be absent at the critical time. The trial judge never
    considered that Beaulieu may have done nothing to search Rowes underwear,
    despite his repeated failures to follow the Standing Orders and his
    supervisors instructions.

[40]

Similarly,
    the trial judge accepted and placed a great deal of emphasis on Beaulieu and
    Savas evidence that they noticed an odour of marijuana as soon as the
    appellant arrived. The trial judge never considered the fact that smell
    evidence can be highly subjective and suspect:
R. v. Polashek
(1999),
    134 C.C.C. (3d) 187 (Ont. C.A.). Nor did he ever turn his mind to the fact that
    the two guards who had interacted with the appellant moments ago, when he was
    passing through security, did not notice any such smell.

[41]

Finally,
    the trial judge concluded that Sava was a credible witness on at least some
    issue, even though he had been shaping his evidence. At the same time, he
    rejected the appellants otherwise credible evidence on the basis of weaknesses
    which even the trial judge admitted were small and insignificant. In the
    context of this case, the trial judges decision to accept the evidence of Sava
    while rejecting the evidence of the appellant as not compelling enough to say
    that I believed him is deeply incongruous.

[42]

When
    read as a whole, the trial judges reasons demonstrate a degree of scrutiny of
    the prosecution evidence that was tolerant and relaxed as compared to the
    irrelevant, tenuous and speculative observations largely about collateral matters
    applied to unfairly discount the appellants evidence.

[43]

Even
    if the evidence was capable of supporting a conviction, where the trial judge
    has applied different standards to the assessment of prosecution and defence
    evidence the appellant has not received a fair trial, and thus has been the
    victim of a miscarriage of justice:
R. v. T.T.
, 2009 ONCA 613, 68 C.R.
    (6th) 1, at para. 74.

[44]

I
    would allow the appeal and order a new trial on this ground.

D.

Third-Party records

[45]

The
    appellant also submits that the trial judge erred in refusing to inspect third
    party records to assess whether they should be produced to the defence.

(1)

Dismissal of third-party
    records application

[46]

The
    appellant brought a written application for the production of a number of
    third-party records in the possession of the Ministry of Community Safety and
    Correctional Services, the Ministrys Correctional Investigation and Security
    Unit, the Toronto Jail, and the Toronto Police Service, for a period roughly
    five years before the date of the alleged offence, January 20, 2012. The
    documents requested included the following:

·

Prison records for each incident in which a Toronto Jail employee
    was suspected,
investigated or convicted of
    smuggling contraband into the jail between January 1, 2007 and January 20,
    2012.

·

Internal correspondence, memoranda, emails and similar
    communication between
the Toronto Jail staff and
    the Correctional Investigation and Security Unit concerning smuggling activity
    by inmates, prison staff, custodians and visitors between January 1, 2007 and
    January 20, 2012.

·

Investigation files and reports for any staff working at the
    Toronto Jail in January 2012 who have been investigated or disciplined for
    smuggling contraband into jails.

·

Statistical documents or reports showing the number of
    investigations into drug smuggling by Toronto Jail staff for the years 2007 to
    2012.

[47]

As
    noted by the trial judge, the appellant was seeking production of these
    documents in order to assist him to test the reliability of the Crowns
    circumstantial case, and to develop evidence of pervasive drug smuggling at the
    Toronto Jail.

[48]

The
    appellant had served a subpoena
duces tecum
upon the custodian of the
    records. The records noted above had been assembled and were in two binders in
    the courtroom.

[49]

In
    his reasons dismissing the appellants application, the trial judge was clearly
    concerned about the efficient use of judicial resources and ensuring that the
    court remained focus on the issue before him. He concluded that:

It is important that Courts remain focussed on the issues at
    hand. The documents sought by the defence in these paragraphs relate to a wider
    issue and that is the smuggling of drugs into jails and more particularly, the
    Toronto Jail. The Crown concedes that drugs are smuggled into the Toronto Jail
    and it is obvious from the extensive case law relative to smuggling contraband
    into penal institutions that this is an issue of concern in many jurisdictions.
    In my view, this fact is not relevant as to whether or not Mr. Gravesande
    smuggled contraband into the Toronto Jail on the day in question. I would
    therefore dismiss this part of the Application.

(2)

Test for third-party
    records and likely relevance standard

[50]

The
    procedure for production of third party records was set out in
R. v.
    OConnor,
[1995] 4 S.C.R. 411, at para. 20:

·

The accused must bring a written application supported by an
    affidavit setting out a basis to believe that the records are likely relevant
[1]
.

·

Notice must be given to the custodian of the records and, if
    known, to persons who have a privacy interest in the records.

·

The accused must ensure that the custodian and the records are
    subpoenaed to ensure their attendance in court.

·

The application should be heard well in advance of the trial so
    that the trial is not disrupted.

[51]

If
    the record holder or some other interested party opposes the application, then
    the trial judge must determine whether production should be compelled in accordance
    with the two-stage test established in
OConnor
. At the first stage,
    the trial judge must determine if the records are likely relevant to the
    proceedings and if they should be produced for the courts inspection. At the
    second stage, the trial judge examines the documents to determine whether, and
    to what extent, production to the accused should be ordered:
R. v. McNeil
,
    2009 SCC 3, [2009] 1 S.C.R. 66, at para. 27.

[52]

Likely
    relevance in this context means a reasonable possibility that the information
    is logically probative to an issue at trial:
OConnor
, at para. 22. An
    issue at trial includes not only material issues concerning the unfolding of
    the events which form the subject matter of the proceedings, but also evidence
    relating to the credibility of witnesses and to the reliability of other
    evidence in the case:
McNeil
, at para. 33.

[53]

Likely
    relevant is not to be interpreted as an onerous burden on the accused.
    Considerations of privacy and admissibility are not relevant at this stage:
OConnor
,
    at para. 24. As indicated in
OConnor
, at para. 24: A relevance
    threshold, at this stage, is simply a requirement to prevent the defence from
    engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and
    time‑consuming requests for production.

(3)

The records requested
    were likely relevant

[54]

The
    appellants application, in this case, could not be characterized as a fishing
    expedition or unmeritorious request.

[55]

The
    application was brought in a timely fashion, and was not a last-minute request.
    This application was brought well in advance of the trial date. The application
    was heard on September 11, 2013 and reasons were delivered on October 21, 2013.
    Evidence on the trial proper did not begin until December 9, 2013.

[56]

The
    application was amply supported by an affidavit. The affidavit also indicated
    that the information was unlikely to be available pursuant to the
Freedom
    of Information and Protection of Privacy Act
, R.S.O 1990, c. F-31 because
    of concerns that divulgation could impair jail security. The affidavit filed in
    support of the application cited a 2003 University of Toronto study indicating
    that 45% of inmates housed within a provincial institution in Ontario had used
    drugs in the preceding year. The affidavit also referred to a June 11, 2013
    Ombudsmans report about the code of silence that exists among correctional
    officers:

The Applicant is unlikely to obtain information by speaking to
    current or former jail staff. In a June 11, 2013 report entitled The Code,
    Ontario Ombudsman André Marin detailed the code of silence that exists among
    correctional officers in Ontario. It is essentially an unwritten social
    incentive for staff to conceal information that might have negative
    consequences for a co-worker. Correctional officers who break the code are
    shunned, threatened, and risk personal harm for ratting on their colleagues.
    The Ombudsman spoke to one jail superintendent who is aware of cases where
    threats of death and physical violence have been made against those who told
    the truth in the face of the code. [Footnote omitted.]

[57]

Furthermore,
    and contrary to the trial judges conclusion, the source of the drugs on Rowes
    person was highly relevant to the issues at trial. If, for example, drugs were
    rampant in the Toronto Jail, this might have affected the assessment of the
    probability that Rowe was carrying them when he came to the interview room. The
    information requested might have shed light on methods used by inmates to
    smuggle drugs, and participation by staff and visitors in these activities. The
    slender concession by the Crown, that there were drugs in the jail, in all
    probability did not convey the extent of the problem.

[58]

There
    is a reasonable possibility that the information was logically relevant to an
    issue at trial: did the appellant bring drugs to Rowe, knowing that Rowe would
    be searched before and after the visit or was Rowe carrying those drugs on his
    person when he came to the interview room. The trial judge could have narrowed
    the time period to some extent. A criminal trial is not a public inquiry into jail
    management. A more focused time range, of say two or three years around the
    date of the offence could well have been sufficient. The trial judges failure
    to conclude that the records were likely relevant was clearly wrong. This error
    is sufficient to require a new trial.

E.

Disposition

[59]

In
    light of these two errors, both of which justify a new trial, it is not
    necessary to address whether another group of documents sought by the appellant
    should or should not have been ordered produced for inspection by the trial
    judge.

[60]

Accordingly,
    for these reasons, I would allow the appeal, set aside the conviction and order
    a new trial.

Released: November 13, 2015

G. Pardu J.A.

I agree Alexandra
    Hoy A.C.J.O

I agree K.M. Weiler
    J.A.





[1]
In exceptional cases, a judge may waive the requirement for written notice.


