R. v. Taillefer; R. v. Duguay

R. v. Taillefer; R. v. Duguay
Collection
Supreme Court Judgments
Date
2003-12-12
Neutral citation
2003 SCC 70
Report
[2003] 3 SCR 307
Case number
28899, 28903
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Quebec
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 28899, 28903
Decision Content
R. v. Taillefer; R. v. Duguay, [2003] 3 S.C.R. 307, 2003 SCC 70
Billy Taillefer Appellant
v.
Her Majesty The Queen Respondent
and between
Hugues Duguay Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Taillefer; R. v. Duguay
Neutral citation: 2003 SCC 70.
File Nos.: 28899, 28903.
2003: January 22; 2003: December 12.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for quebec
Constitutional law — Charter of Rights — Fundamental justice — Full answer and defence — Duty to disclose evidence — Crown failing to disclose all relevant evidence to defence at trial of accused — Whether right of accused to make full answer and defence infringed — If so, nature of appropriate remedy — Canadian Charter of Rights and Freedoms , ss. 7 , 24(1) .
Criminal law — Evidence — Duty to disclose evidence — Crown failing to disclose all relevant evidence to defence at trial of accused — Whether right of accused to make full answer and defence infringed.
Criminal law — Evidence — Fresh evidence — Court of Appeal — Crown failing to disclose all relevant evidence to defence at trial of accused — Approach to be taken by appellate court in assessing fresh evidence where Crown has not complied with its duty to disclose.
Criminal law — Guilty plea — Withdrawal — Test applicable to accused seeking leave to withdraw guilty plea on basis of discovery of new evidence not disclosed by Crown.
In 1991, T and D were convicted of the first degree murder of a teenage girl. The Court of Appeal upheld the verdict in T’s case, quashed D’s guilty verdict and ordered a new trial on a charge of second degree murder. However, D negotiated a guilty plea to a reduced charge of manslaughter and was sentenced to 12 years in a penitentiary. During its investigation into the activities of the Sûreté du Québec, the Poitras Commission discovered that the police and the Crown had failed to disclose to the accused the existence of a considerable amount of evidence relevant to the defence at the 1991 trial. The accused then appealed their convictions to the Court of Appeal. After an item-by-item review of the fresh evidence, the court, in two separate judgments, held that there was no sufficient ground to warrant quashing the guilty verdicts and ordering new trials.
Held: The appeals should be allowed. The conviction of T for first degree murder is quashed and a new trial ordered on a charge of first degree murder. Leave is granted to D to withdraw his guilty plea, his conviction for manslaughter is quashed and a stay of proceedings is directed.
The Crown must disclose all relevant information to an accused, whether inculpatory or exculpatory, subject to the exercise of the Crown’s discretion to refuse to disclose information that is privileged or plainly irrelevant. This constitutional right is protected by s. 7 of the Charter , and helps to guarantee the accused’s ability to exercise the right to make full answer and defence. The Crown’s duty to disclose is triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence. The relevant information must be disclosed whether or not the Crown intends to introduce it as evidence at trial, before election or plea. Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that these persons are not proposed as Crown witnesses. Having regard to the substantial amount of evidence that was not disclosed, and to the extremely relevant nature of that evidence, of which the prosecution could not have been unaware, it must be acknowledged that the accused were the victims of a serious infringement of their right to disclosure of evidence. While the jury’s verdict was rendered before the decision in Stinchcombe, the Crown cannot rely on uncertainties in the law relating to the disclosure of evidence to justify the failure to disclose for which it is the focus of criticism in this case. A review of the case law confirms that the duty already existed prior to Stinchcombe as a component of the accused’s right to a fair trial and to make full answer and defence. In addition, the duty arises naturally from the Crown attorney’s role as an officer of the court in our criminal justice system.
Infringement of the right to disclosure is not always an infringement of the right to make full answer and defence. To determine whether there is an infringement of the latter right, the accused will have to show that there was a reasonable possibility that the failure to disclose affected the outcome at trial or the overall fairness of the trial. The principles that apply to the admission of fresh evidence discovered after the breach of the duty to disclose were clearly established by this Court in Dixon. The method of analysis prescribed by Dixon consists of two distinct stages. The first stage involves assessing the impact of the fresh evidence on the outcome of the trial. The undisclosed information must be examined to determine the impact it might have had on the decision to convict. The onus is on the accused to demonstrate that there is a reasonable possibility that the verdict might have been different but for the Crown’s failure to disclose all of the relevant evidence. Second, the appellate court must determine whether there was a reasonable possibility that the jury, with the benefit of all of the relevant evidence, might have had a reasonable doubt as to the accused’s guilt. The existence of a reasonable possibility of a different verdict must be determined in the light of the evidence taken as a whole. The appellate court should not examine the undisclosed evidence, item by item, to assess its probative value; that is the role assigned to the trier of fact. Rather, an effort must be made to reconstruct the overall picture of the evidence that would have been presented to the jury. A negative answer at the first stage does not bring the analysis to a close. The second stage requires that the appellate court assess the impact of the fresh evidence on the overall fairness of the trial. It will not be enough to determine whether the right to make full answer and defence has been infringed having regard solely to the nature of the fresh evidence. The potential usefulness of that evidence to the defence will have to be considered. This reasonable possibility of affecting the overall fairness of the trial must be based on reasonably possible uses of the non‑disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure. Here again, the appellate court must not assess the possible uses of the fresh evidence based on an item-by-item analysis of the probative value of the evidence. It must ascertain whether the failure to disclose deprived the accused of certain evidential or investigative resources. The infringement of the right to make full answer and defence may arise from a reasonable possibility that the failure to disclose had an impact on the overall fairness of the trial, even if it cannot be concluded that the verdict might have been different.
An accused seeking leave to withdraw his or her guilty plea on the ground of the discovery of fresh evidence that was not disclosed by the prosecution must demonstrate that there is a reasonable possibility that the fresh evidence would have influenced his or her decision to plead guilty, if it had been available before the guilty plea was entered. The test is still objective in nature. The question is whether a reasonable and properly informed person, put in the same situation, would have run the risk of standing trial if he or she had had timely knowledge of the undisclosed evidence, when it is assessed together with all of the evidence already known.
In this case, the Court of Appeal made a fundamental methodological error when it undertook to analyse the fresh evidence by breaking it down or addressing its individual parts, rather than analysing the fresh evidence as a whole in order to assess its impact on the trial. Applying the Dixon test calls for an appellate court to assess the substance of the fresh evidence. In the event that the jury had not been deprived of the evidence, the overall picture of the trial would have been very different. First, the credibility of certain prosecution witnesses could have been undermined using the witness statements whose existence was not disclosed to the defence. Second, the jury would have been offered a theory different from the Crown’s concerning the events that took place during the night of the murder. Moreover, by examining each part of the fresh evidence on its own and comparing those parts to the evidence produced at trial, the Court of Appeal applied a more exacting standard than “reasonable possibility”.
The Court of Appeal also erred in its assessment of the effect of the failure to disclose on the overall fairness of T’s trial and the overall fairness of the process that led to D’s decision to enter a guilty plea. In T’s case, the Court of Appeal restricted its analysis to the impact of the fresh evidence on the result of the trial and failed to assess its impact on the overall fairness of the trial. Had the court inquired into the possible and realistic uses of the evidence by the defence, its conclusions would have been quite different. T has succeeded in showing that it is reasonably possible that the new evidence would have had an impact on the overall fairness of the trial. Many parts of the fresh evidence could have been used by the defence at trial, whether to impeach the credibility of certain witnesses and the credibility of the Crown’s theory or to gather new evidence. In D’s case, the Court of Appeal erred when it applied a subjective test in determining whether there was a reasonable possibility that D would have decided not to stand trial again if he had known about the undisclosed evidence. The test is what the reasonable person in the same situation would have done. The court did not give any attention to the reasonable possibilities of using the fresh evidence that were available to the defence and to the effect of such possibilities on a reasonable decision to take the risk of a second trial. In the circumstances of this case, having regard to the volume, weight and relevance of the undisclosed evidence and the new possibilities that the opportunity to use that evidence would have offered, it does not seem unreasonable to think that an accused, armed with a more solid defence than at his first trial, at which the jury deliberations had lasted 14 days, would have hesitated to admit his guilt or would have had more confidence about standing trial a second time. The Crown’s breach of its duty to disclose all of the relevant evidence cast doubt on the validity of the accused’s admission of guilt and the waiver of the presumption of innocence that a guilty plea involves. The constitutional right of the accused to make full answer and defence has been seriously infringed.
The appropriate and just remedy for an infringement of the right to make full answer and defence arising out of the Crown’s breach of its duty to disclose must be determined on the basis of the seriousness of the infringement. Where the breach of that duty results in an infringement of the accused’s right to make full answer and defence, ordering a new trial will be the minimum remedy. A stay of proceedings is ordered only in exceptional circumstances, where the accused has demonstrated that the infringement of the right is irreparable. In T’s case, the appropriate and just remedy in the circumstances is committal for a new trial on the charge of a first degree murder. It would be premature to order a stay of proceedings, in the case of such a serious crime, where the charge is still first degree murder. The transcripts of all of the testimony given at the preliminary inquiry and the first trial are still available. As well, at this stage in the case, we can only speculate as to the prejudice that the accused would suffer by reason of the impeachment of the witnesses’ credibility and the loss of opportunities for investigation. While the infringement of the accused’s rights might be characterized as very serious, it certainly appears to result from an incorrect understanding of the nature and scope of the duty of disclosure. In the event that the trial judge determines that the accused cannot be given a fair trial, that judge could exercise his or her discretion at any time and order a stay of proceedings. On the particular facts of D’s case, a stay of the proceedings is the appropriate remedy. Ordering a new trial when the accused has already served two thirds of his sentence and is eligible for parole would contribute to perpetuating an injustice and would tarnish the integrity of our judicial system. The accused has already effectively spent the time in prison that is normally imposed in the case of any term to which he might be sentenced if he were convicted. This is plainly one of those cases where the need to avoid offending fair play and decency prevails over society’s interest in the prosecution of criminal cases. There is no other remedy that would cure the prejudice suffered by D.
Cases Cited
Applied: R. v. Dixon, [1998] 1 S.C.R. 244, aff’g R. v. McQuaid (Dixon Appeal), [1997] N.S.J. No. 20 (QL); approved: R. v. Creamer (1995), 97 C.C.C. (3d) 108; R. v. Jarema (1996), 43 Alta. L.R. (3d) 345; R. v. Peterson (1996), 106 C.C.C. (3d) 64; Comtois-Barbeau v. La Reine, [1996] R.J.Q. 1127; R. v. W. (W.) (1995), 100 C.C.C. (3d) 225; R. v. T. (R.) (1992), 10 O.R. (3d) 514; disapproved: R. v. Pottie (1996), 150 N.S.R. (2d) 56; distinguished: Palmer v. The Queen, [1980] 1 S.C.R. 759; referred to: R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Harbottle, [1993] 3 S.C.R. 306; Adgey v. The Queen, [1975] 2 S.C.R. 426; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Egger, [1993] 2 S.C.R. 451; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. C. (M.H.), [1991] 1 S.C.R. 763; Lemay v. The King, [1952] 1 S.C.R. 232; Duke v. The Queen, [1972] S.C.R. 917; Caccamo v. The Queen, [1976] 1 S.C.R. 786; Taillefer v. La Reine, [1989] R.J.Q. 2023; R. v. Savion (1980), 52 C.C.C. (2d) 276; Re Cunliffe and Law Society of British Columbia (1984), 11 D.L.R. (4th) 280; Re Regina and Arviv (1985), 19 C.C.C. (3d) 395; R. v. Bourget (1987), 35 C.C.C. (3d) 371; Boucher v. The Queen, [1955] S.C.R. 16; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Antinello (1995), 97 C.C.C. (3d) 126; R. v. Hamilton (1994), 94 C.C.C. (3d) 12; R. v. Santocono (1996), 91 O.A.C. 26; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; R. v. La, [1997] 2 S.C.R. 680; R. v. Conway, [1989] 1 S.C.R. 1659; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; R. v. Gamble, [1988] 2 S.C.R. 595; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, 2003 SCC 62; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Young (1984), 40 C.R. (3d) 289; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Power, [1994] 1 S.C.R. 601; R. v. Jack (1996), 113 Man. R. (2d) 260, rev’d [1997] 2 S.C.R. 334; R. v. Datey, [1999] Q.J. No. 1567 (QL); R. v. Hunter (2001), 155 C.C.C. (3d) 225; R. v. Mitchelson (1992), 78 Man. R. (2d) 134; R. v. P. (G.) (1998), 128 C.C.C. (3d) 159; R. v. L. (R.D.) (1997), 60 Alta. L.R. (3d) 364; R. v. Sophonow, [1985] M.J. No. 9 (QL); R. v. Sophonow (No. 2) (1986), 25 C.C.C. (3d) 415.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .
Criminal Code, R.S.C. 1985, c. C-46, ss. 231(5) , 690 [now rep. 2002, c. 13, s. 70].
Authors Cited
Nova Scotia. Royal Commission on the Donald Marshall, Jr., Prosecution: Findings and Recommendations, vol. 1. Halifax: The Commission, 1989.
Quebec. Commission Poitras. Rapport de la Commission d’enquête chargée de faire enquête sur la Sûreté du Québec. Québec: La Commission, 1999.
APPEALS from judgments of the Quebec Court of Appeal, [2001] Q.J. No. 3975 (QL) and [2001] Q.J. No. 4037 (QL), affirming decisions of the Superior Court. Appeals allowed.
Johanne St-Gelais, for the appellant Billy Taillefer.
Louis Belleau, for the appellant Hugues Duguay.
Pierre Lapointe, for the respondent.
English version of the judgment of the Court delivered by
LeBel J. —
I. Introduction
1 The issue in the appeal by the appellants Taillefer and Duguay from their convictions for first degree murder and manslaughter, respectively, is the nature of the Crown’s duty to disclose evidence in a criminal trial and the consequences of breach
of that duty. Common law jurisprudence acknowledged the existence of that duty. The application of the constitutional principles set out in the Canadian Charter of Rights and Freedoms developed it. Our Court’s decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326, enshrined it among the fundamental rules of Canadian criminal procedure. It facilitates the trial process, but, most importantly, it affords additional protection for the right of accused persons to make full answer and defence. The way in which the disclosure of evidence was viewed in the past — as an act of goodwill and cooperation on the part of the Crown — played a significant part in catastrophic judicial errors. On this point, we need only recall that the Royal Commission on the Donald Marshall, Jr., Prosecution identified the failure to disclose all the relevant evidence as one of the causes of the judicial error that deprived Donald Marshall of his liberty for 11 years, for a crime he had not committed (Royal Commission on the Donald Marshall, Jr., Prosecution: Findings and Recommendations (1989), vol. 1, at pp. 238 et seq.).
2 The issue in this Court arises out of the killing of Sandra Gaudet, a 14‑year-old girl, in Val-d’Or during the night of March 9 to 10, 1990, and the legal consequences of that killing. After many twists and turns, the Quebec Court of Appeal upheld the first degree murder conviction of the appellant Taillefer and denied the appellant Duguay leave to withdraw his plea of guilty to a reduced charge of manslaughter. The judgments under appeal were rendered after the Commission d’enquête chargée de faire enquête sur la Sûreté du Québec (“Poitras Commission”) expressed its concerns about the conduct of the criminal investigation and the charge in this case. During its own investigation into the activities of the Sûreté du Québec, the Poitras Commission discovered that the police and the Crown had failed to disclose the existence of a considerable amount of evidence relevant to the charge or to the defence to the appellants during their first trial at the criminal assizes in 1991.
3 In the circumstances of this case, and particularly because of the seriousness of the infringements of the appellants’ fundamental rights by the police and the Crown, I find that the decisions of the Court of Appeal must be set aside. In the appellant Taillefer’s case, a new trial on the charge of first degree murder must be ordered. In the appellant Duguay’s case, having regard to the particular context of his case, and specifically to the fact that he has already served at least eight years of any term of imprisonment that might be imposed, I would instead, after allowing his appeal, order a stay of proceedings.
4 Because of the length and complexity of these cases, it will be necessary, for a proper understanding of the issues raised and of their precise legal content, to review the origin of and developments in these matters starting with the death of Sandra Gaudet. The series of judgments rendered by the Quebec Court of Appeal at various points in these matters will also have to be carefully examined.
II. Origin and Judicial History of the Cases
A. The Murder, the Police Investigation and the Charges
5 Sandra Gaudet, a 14-year-old girl, was killed in Val-d’Or during the night of March 9 to 10, 1990. The evidence was that she left her family home at about 8:00 p.m., during the evening of March 9, and never returned. On Saturday, March 10, 1990, Sandra Gaudet’s mother reported her daughter’s disappearance to the Val-d’Or police. On Monday, March 12, 1990, the victim’s body was found near chemin Baie‑Carrières in Val-d’Or, buried in the snow. The victim was dressed only in her socks and a torn and undone brassiere. Dr. Claude Pothel, the pathologist, concluded that death was caused by asphyxiation resulting from manual strangulation. He observed the presence of marks that he associated with bites on the victim’s breasts and vulva.
6 The police investigation led to the arrest of the appellants Billy Taillefer and Hugues Duguay on April 27, 1990. On October 29, 1990, they were charged with the first degree murder of Sandra Gaudet.
B. The First Trial at the Assizes and the Guilty Verdicts
7 The appellants were tried on the charge of the first degree murder of Sandra Gaudet. At the end of the trial, the assizes jury found them guilty of the crime with which they were charged. At this point, it is important to summarize the evidence presented by the prosecution and the defence at trial, in order to assess the impact of the Crown’s breach of its duty of disclosure.
(1) The Prosecution Evidence
8 Steve Fortier, the victim’s friend, testified that he was with Sandra Gaudet on the evening of Friday, March 9, 1990. He said that she went to meet him at his aunt’s home, where he was babysitting, at about 8:30 p.m. They left together at about 9:00 and went to his family home. They then spent the evening talking with his mother and watching television. He added that Sandra had left his home at 11:45, alone, to go home. He testified that Sandra normally made that trip by taking a route that included chemin Baie-Carrières. This meant that she had to walk close to the home of Laurent Taillefer, the father of the appellant Billy Taillefer.
9 Christine Côté, a server at the Bar Morocco in Val-d’Or, testified that she had served the appellant Duguay two beers on the evening of March 9, 1990. She said that the appellant Duguay had been there with another individual whom she could not identify. Pierre Bolduc, the taxi driver, testified that he had gone to the Bar Morocco on the evening of March 9, 1990, between 11:30 p.m. and midnight. He said that he had picked up two passengers there, one of whom got into the front seat while the other got into the back seat. He subsequently identified the individual who rode in the front of the vehicle with him as Billy Taillefer. At his passengers’ request, he ended the trip behind the Petit Marché convenience store, near Laurent Taillefer’s home.
10 At about 1:50 a.m. on March 10, Laurent Taillefer asked a co-worker, André Caouette, whether he could take over for him earlier. Mr. Caouette then started his shift at 3:00 rather than 5:00 a.m. In addition, Jeanine Denommé, the co-owner of the Shell Denommé convenience store in Val-d’Or, testified that Laurent Taillefer bought gas from her at 3:10 a.m. on March 10, 1990.
11 Isabelle Martel, who lived in the apartment upstairs from Laurent Taillefer’s apartment at the time of the murder, testified that she had heard unusual noise coming from the downstairs apartment during the night of March 9 to 10, 1990. She said that she had heard [translation] “scuffling” and a loud male laugh at about a quarter past midnight. Later in the night, she said, she heard the voice of an angry person and the noise made by a fist hitting a table or wall. She then said that she had heard the shower in Laurent Taillefer’s apartment twice, at about 6:00 or 6:30 on the morning of March 10, 1990. Shortly after that, she saw two individuals leave Laurent Taillefer’s apartment, whom she later identified as the appellants Taillefer and Duguay.
12 Ghyslaine Pomerleau, who lived near Laurent Taillefer’s apartment, testified that she had heard the [translation] “unusually long” scream of a teenaged girl coming from around Laurent Taillefer’s home during the night of March 9 to 10, 1990. She said that she had heard the scream after seeing an unpleasant scene in a movie on television. The evidence further established that the scene in question had aired at midnight.
13 Donald Saint-Pierre, a truck driver, and his 14-year-old son, Carl Saint‑Pierre, testified that they had seen a small red pick-up truck near chemin Baie-Carrières between 5:30 and 6:00 on the morning of March 10, 1990. During the investigation, Donald Saint‑Pierre identified that vehicle as the one belonging to Laurent Taillefer. Carl Saint‑Pierre said, after a hypnosis session conducted by the Sûreté du Québec, that he had seen a red Tracker with a [translation] “white vinyl roof” on chemin Baie-Carrières.
14 The Attorney General also introduced into evidence two telephone conversations between the appellants, which were intercepted by the police on April 6, 1990. In certain parts of those conversations, the appellants spoke as if they were innocent, while at other times they made incriminating comments, saying that only God and they themselves knew who had killed Sandra Gaudet.
15 After they were arrested, the appellants made incriminating statements to the investigating police officers. The statements were ruled admissible in evidence after a voir dire was held. In his statement, Billy Taillefer admitted committing the murder of Sandra Gaudet. According to his admissions, Hugues Duguay and he had abducted Sandra Gaudet and then dragged her into Laurent Taillefer’s home, where they forcibly undressed her. He said that he had not raped the victim, although he acknowledged that he had ejaculated on her. He also said that Hugues Duguay had bitten her breasts. Because the victim was struggling and screaming, Billy Taillefer choked her by putting his hands around her neck until she lost consciousness. He then tried to revive her, but without success. According to Billy Taillefer’s statement, when his father, Laurent Taillefer, came home from work, he was enraged to find the victim in his bed and ordered the appellants to [translation] “get rid of” the body. Using Laurent Taillefer’s vehicle, they transported their victim’s body to the wooded area near chemin Baie-Carrières and left it there, and then returned to Laurent Taillefer’s home, after throwing the victim’s clothing out on the side of the road. They left Laurent Taillefer’s home at about 6:00 or 7:00 a.m. Billy Taillefer finally said that he had consumed a large quantity of alcohol during the day and evening of March 9, 1990. In addition to that statement, Billy Taillefer signed a handwritten note addressed to Sandra Gaudet’s parents in which he asked them to forgive him for the unintentional act he had committed.
16 Hugues Duguay stated that he had but a vague memory of the events. He had consumed a large amount of alcohol and cocaine during the day and evening of March 9, 1990. According to his statement, he had followed Billy Taillefer when he dragged Sandra Gaudet into Laurent Taillefer’s home. He said that Billy Taillefer was holding the victim down when she struggled. Then she stopped moving. He said that he no longer remembered very well whether or not he had helped Billy Taillefer to undress the victim, or whether he had touched her. Billy Taillefer and he used Laurent Taillefer’s Tracker to dispose of the victim’s body and her clothing, but he did not remember the exact place.
17 The appellants’ dental impressions were also introduced in evidence. At the trial, Dr. Dorion, a dental surgeon, stated that, in his opinion, the bite marks found on the victim’s left breast and pubic area had been made by Hugues Duguay.
(2) The Defence Evidence
18 The accused first raised an alibi defence to the charges against them. They said that they were in Senneterre, 70 kilometres from Val-d’Or, during the evening of March 9. Billy Taillefer testified that he had spent part of the evening at the Jobber, a bar in Senneterre. He stated that he had left that bar between 11:30 p.m. and midnight and had gone to another establishment called the Contre-Bar, where he met a few people, including his sister, Shirley Taillefer. He left that place at about 2:00 in the morning of March 10, 1990, and went immediately home. A number of witnesses confirmed that they had seen Billy Taillefer in Senneterre during the evening of March 9, 1990. Hugues Duguay also said that he had been in Senneterre during the evening of March 9, 1990, and had visited a number of establishments during the evening, including the Contre-Bar. He then went back home, where he watched television with his brother, and went to bed at about midnight or half past. A number of witnesses also gave evidence that they had seen Hugues Duguay in Senneterre during the evening of March 9.
19 The appellants also disputed the voluntariness of their statements to the police. They contended that they had been threatened and beaten during questioning. They testified that the police had in fact dictated the content of their statements to them.
20 In rebuttal to the testimony of Dr. Dorion, the appellants introduced an expert opinion prepared by two experts, Dr. Stanley Kogan and Dr. Brian Jeffrey Jonston, who challenged the validity and reliability of the methods used by one of the prosecution experts, Dr. Dorion, in his report on the marks found on the victim’s body. Those experts even expressed doubt about whether the marks were made by bites, as Dr. Dorion had said.
21 On February 1, 1991, after deliberating for 14 days, the jury found the appellants guilty of the first degree murder of Sandra Gaudet. They were sentenced to life imprisonment without possibility of parole for 25 years. The appellants Taillefer and Duguay then appealed to the Quebec Court of Appeal.
C. The First Appeals to the Court of Appeal (Proulx J.A.) (1995), 40 C.R. (4th) 287
22 In their appeal, the appellants argued a number of grounds. Those grounds were divided into several categories by the Court of Appeal (at para. 3): [translation] “1. Change of venue; 2. Jury selection; 3. The arrest and the admissibility of the out-of-court statements; 4. The interception by the police of the conversation between the appellant Duguay and his father; 5. The admissibility of the testimony given by Carl St-Pierre after a hypnosis session, and the issue of hypnosis; 6. [C]ertain restrictions on cross-examination; 7. The refusal by the judge to allow psychiatric evidence; 8. The forensic dentistry expert Dr. Dorion; 9. Rebuttal evidence; 10. The Crown’s argument; 11. The charge to the jury on the following points: (i) the standard of proof; (ii) the identification evidence; (iii) the credibility of the witnesses; (iv) the burden of proof regarding voluntary intoxication; (v) the alibi defence; (vi) certain elements of first degree murder [and the responsibility of an accomplice to the commission of a first degree murder under s. 231(5) of the Criminal Code having regard to the decision in R. v. Harbottle, [1993] 3 S.C.R. 306]; (vii) the theory of the defence; 12. The unreasonableness of the verdict; 13. Communication between a juror and a witness during the jury’s deliberations.”
23 On June 12, 1995, in a judgment for which the reasons were written by Proulx J.A., the Court of Appeal dismissed the appeal and upheld the verdict of guilty for the first degree murder of Sandra Gaudet in the case of the appellant Taillefer. In his reasons, Proulx J.A. held that the errors committed by the trial judge did not prejudice that accused. Moreover, even if those errors had not been made, the jury’s verdict would have remained the same. The appellant Taillefer then filed an application for leave to appeal to this Court, which was dismissed on February 21, 1996.
24 However, the Court of Appeal allowed the appeal by the appellant Duguay. In the court’s opinion, the instructions given to the jury concerning Hugues Duguay’s participation in the first degree murder of Sandra Gaudet, under s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), did not adhere to the principles laid down by this Court in Harbottle, supra. The trial judge did not tell the jury that Hugues Duguay could only be held responsible for the first degree murder of Sandra Gaudet if the evidence established that his participation in the crime was a substantial cause of the victim’s death. In the court’s opinion, the appellant Duguay could not have been convicted of first degree murder on the evidence presented at trial concerning his role in this matter. Accordingly, the court directed that a new trial be held on a reduced charge of second degree murder.
25 On August 16, 1995, the appellant Duguay changed lawyers. His new counsel then negotiated a guilty plea to a reduced charge of manslaughter with the Crown. François Tremblay J., of the Superior Court, then accepted the guilty plea and sentenced the accused to 12 years in a penitentiary.
D. The Poitras Commission and its Consequences
26 On February 19, 1999, while he was still in a penitentiary, the appellant Duguay received a letter from the Associate Deputy Minister of Justice of Quebec, Mario Bilodeau, and a copy of the parts of the Poitras Commission’s report that related to his and to the appellant Taillefer’s cases. The Poitras Commission’s report raised a number of questions concerning the conduct of the appellants’ case by the police and the Crown. The report noted, inter alia, that a considerable body of evidence had not been disclosed to the defence at the time of the appellants’ trials. It accordingly recommended that the Minister of Justice reopen the case.
27 The appellant Duguay then applied to the Court of Appeal for an extension of the time for appealing, for leave to appeal his conviction, and to introduce fresh evidence. Those applications were allowed. The appellant’s case then came up for a hearing before the Quebec Court of Appeal for the second time.
28 The appellant Taillefer had received the same information concerning the report of the Poitras Commission. Because he had exhausted the usual remedies, he asked the Minister of Justice of Canada to refer his case to the Court of Appeal under s. 690 Cr. C. (which has since been repealed). On October 16, 2000, under the authority of that provision, the Minister of Justice referred the matter to the Court of Appeal so that the appellant Taillefer’s conviction for the first degree murder of Sandra Gaudet might be reviewed in light of any fresh evidence that might be admitted. The parties introduced fresh evidence before the Court of Appeal, which then heard the new appeal by the appellant Duguay and the application for review of the trial and of the appellant Taillefer’s conviction.
E. The Fresh Evidence and Its Purpose
29 The Poitras Commission report revealed that a considerable amount of evidence had not been disclosed to the defence at trial. The fresh evidence essentially consisted of the oral and written statements of various witnesses gathered by the police during their investigation, investigation notes taken by police officers in the course of questioning the accused, and the information sworn by a police officer for the purpose of obtaining a search warrant. As we shall see later, when more details are added, some of the undisclosed evidence was relevant for the defence’s purposes. A considerable part of it could have been used to impeach the credibility of certain prosecution witnesses. Other evidence raised serious doubts as to the credibility of the theory put forward by the Crown. Finally, the defence could have used some of that evidence to explore or discover new avenues of investigation.
30 First, the Crown failed to disclose the statements of numerous witnesses which contradicted the testimony of Donald and Carl Saint-Pierre concerning the presence of Laurent Taillefer’s vehicle at the location where the victim’s body was discovered. The police questioned 25 witnesses, who stated that they had seen various types of vehicles at the same place at the same time, several of which did not match the description given by the Saint-Pierres at trial.
31 In addition, the Crown did not disclose a written statement made by André Caouette, Laurent Taillefer’s co-worker. At trial, Mr. Caouette testified that he had received a call from Laurent Taillefer during the night of the murder, asking him to take over for him sooner than scheduled. In a statement dated March 17, 1990, and thus taken before the trial, that witness had stated that he himself had taken the initiative of asking Laurent Taillefer whether he would agree to have Mr. Caouette replace him earlier during the night of March 9 to 10, 1990. That statement contradicts the theory that Laurent Taillefer had left his work in a hurry in order to assist the accused in getting rid of the victim’s body.
32 According to the Poitras Commission’s report, Isabelle Martel, the witness who said at trial that she had heard incriminating noises coming from Laurent Taillefer’s apartment during the night of the murder, had made a statement of a different tenor to police prior to the trial. The handwritten notes made by an officer of the Val-d’Or municipal police, who spoke with Isabelle Martel on April 2, 1990, reveal that she could not say whether she had heard noise coming from Laurent Taillefer’s apartment during the nights of March 9 or 10, 1990. That statement was never disclosed to the defence, nor was the statement made by her husband, Juan Caruncho, who said that he had not heard any particular noises during the night of the murder.
33 Nor was a particularly important statement made by a friend of the victim, Isabelle Brouillette, dated March 14, 1990, disclosed to the defence. That witness said that she had met Sandra Gaudet at a dance on the night of the murder, shortly before midnight. She said that the dance had been held at the far east end of the city of Val‑d’Or. That statement was in direct conflict with the Crown’s theory, which was that the victim was abducted at about midnight at the far west end of the city, in the vicinity of Laurent Taillefer’s home.
34 Ghyslaine Pomerleau, the witness who stated at trial that she had heard the [translation] “unusually long scream of a teenaged girl” during the night of the murder, had made a number of statements prior to trial which were never disclosed to the defence. The version of the facts that this witness gave changed over the course of her statements. For instance, on March 20, 1990, she said that she had heard a woman’s scream. The next day, she described the scream as being rather the scream of a teenaged girl. On April 10, 1990, the scream became the scream of a person [translation] “surprised from behind”. And at trial, she described the voice she had heard as the voice of a girl, not a small child or an adult. In her testimony, in the presence of the jury, she also said that she had made only one statement to the police.
35 The Crown also failed to disclose a statement made by Guy Leblanc, a taxi driver in Val‑d’Or. On March 26, 1990, he told the Val‑d’Or municipal police that on