Lack of disclosure stalls drug-trafficking trial

Adrug-trafficking trial came to an abrupt halt this week after defence learned police had not disclosed all of their evidence in the case. The Court of Queen’s Bench trial, in which Abraham Yoas Gezaw stands charged with selling cocaine to an undercover officer, had only heard from one witness Monday when Crown prosecutor John Oman told court notes written by an officer involved in the case had not made it into the disclosure package.

Court was told police had previously claimed disclosure was complete, but Edmonton lawyer Paul Moreau suspected there might be more. When he made inquiries Monday, he learned there were notes by one of five officers on surveillance during the drug transaction that hadn’t been submitted.

“This is not a case of late disclosure,” Judge D.K. Miller suggested. “It’s borderline misconduct by police.”

Miller said the Crown was also negligent by not providing the notes and not ensuring the officer was available as a witness.

The officer, court was told, is out of the country and unavailable to provide the notes or testify.

The matter was adjourned to Tuesday to decide the best remedy, but Moreau dropped another bombshell. He pointed out notes taken by another officer who was listening to radio transmissions during the drug transaction never made it into the file, either, despite the fact the Crown had previously been told “there are no notes.”

“So this is worse than the usual nondisclosure,” Moreau said.

Although the Crown recommended adjourning the trial and admitted he “is troubled by this matter,” Moreau recommended a stay of proceeding, which is an order preventing, either temporarily or permanently, any further action on a prosecution.

“The most appropriate remedy is a stay of proceeding.”

Moreau conceded even though failure to provide the officers’ notes in the file may not have been deliberate, it was still gross negligence. He said simply adjourning the trial is not a suitable remedy because it would not only cost his client more money — unless additional costs were paid by the province — it could also result in a breach of the accused’s Charter rights.

In a recent decision by the Supreme Court of Canada, R v Jordan, the court rejected the framework traditionally used to determine whether an accused has been tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms, and replaced it with a presumptive ceiling of 18 months between the charges and the trial in a provincial court without preliminary inquiry, or 30 months in higher courts.

Moreau said an adjournment would likely prevent the trial from finishing within the new time frame because it’s been 29 months since the alleged drug transaction occurred on April 24, 2015. However, the charge wasn’t sworn and Gezaw wasn’t arrested until several months later.

Court was told that on the day of the drug bust an undercover cop arranged to buy cocaine through a dial-a-dope operation, and he met a man and woman at a westside restaurant and lounge. The officer testified Monday that the man, whom he identified as Gezaw, seemed suspicious and asked a lot of questions to determine whether he was a police officer. About 45 minutes later as they were preparing to leave the restaurant, the woman told the officer not to forget his napkin. When the officer looked confused, Gezaw said, “it’s in the napkin.”

The officer, who told court he received five and a half grams of crack cocaine, went to his car for the money — $400 in 20’s — and handed it to the stillsuspicious dealer.

“He took the money and put it in his pocket.”

The two shook hands and Gezaw walked away.

During cross examination by defence, the officer admitted he never saw who placed the drug-filled napkin on the table. He also said he didn’t know why he left the money in the car, even though Moreau suggested it made more sense to have it with him during the transaction.

Moreau also presented a scenario other than the one suggested by the officer. Moreau suggested that when the officer tried to give the money to Gezaw, the accused stepped back, raised his hands and refused to take it.

The judge rejected the recommendation for a stay of proceeding and ordered the trial resume Nov. 27 and 28. He also ordered that the two officers whose notes were not part of the file take the stand so they can be questioned by the Crown and defence.

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