20. Regina v. C.C.C. [Court of Appeal of Saskatchewan, Regina – December 2016]

This was an appeal from conviction following a 1 month trial for conspiracy to traffic in multiple kilograms of cocaine.  The trial was conducted by Patrick Fagan’s associate Ms. Kaysi Fagan.  While numerous grounds for appeal were alleged, the primary err of consequence concerned the issue of Crown disclosure.

The underlying facts are relatively straightforward.  On the eve of commencement of trial the Crown discovered a second electronic disclosure database containing thousands of documents which may or  may not have been provided to the defence.  This issue was broached by the defence at the onset of trial proceedings and the Crown invited Kaysi to attend their office for the purpose of reviewing electronic disclosure to determine what items of disclosure were relevant and outstanding.  To Kaysi’s chagrin, this reviewing process involved a Crown prosecutor looking over her shoulder (literally) during the review.

The untenable situation aforesaid was brought to the immediate attention of the trial Justice.  Faced with a potential s. 11(b) Charter “delay” application, the Crown shifted tactical gears and took the position (despite the fact that it had yet to review all of the disclosure) that the undisclosed material wasn’t relevant.  The trial Justice then pressed Kaysi to address the issue of relevance.  Kaysi addressed the issue of relevance the only way she could: How can I determine relevance if I haven’t seen the documents(?).  The adjournment application was denied, disclosure was not provided and a lengthy trial ensued; convictions were entered on all counts.

Patrick Fagan argued the appeal from conviction on May 9, 2016. On December 2, 2016 the Court of Appeal ultimately agreed with the legal arguments put forth by Patrick Fagan, overturned all convictions and directed a new trial.

Transcript of decision of the Saskatchewan Court of Appeal