Jun 24, 2020

Criminal Law: Private Investigators; Mistrials

R. v. Sandeson, 2020 NSCA 47 (CanLII)

Keywords: Private investigator; first degree murder; late disclosure; mistrial


The Appellant and the deceased, Mr. Taylor Samson, both attend Dalhousie University in Halifax. The Appellant is about to start first year medical school in two weeks, the deceased studies physics, “both involved in the drug trade”. The pair agree to meet at an apartment to complete a drug deal – a “large quantity of marijuana” for $40,000; the Appellant Mr. Sandeson is buying from Mr. Samson.

Surveillance video shows the deceased enter the apartment carrying a “large black duffel bag”, but there is no video of him coming out. Neighbours hear a single gunshot and observe the Appellant in a “state of shock or panic”. Mr. Samson’s body is never found. (See paras. 1-5).

The Court of Appeal note:

  • Mr. Sandeson’s girlfriend, arriving later “noticed the apartment smelled of bleach” (See para. 8);
  • surveillance video shows Mr. Sandeson cleaning out his car’s trunk (See para. 11);
  • the deceased’s “DNA was found in that trunk” (See para. 11);
  • surveillance video shows Mr. Sandeson “removing garbage bags…from his apartment while wearing gloves” (See para. 13); and
  • the deceased’s DNA is found on a shower curtain. (See para. 13).

The Appellant is convicted of first-degree murder. During the trial it is revealed that Mr. Bruce Webb, a private investigator who had been working with the defence team, assisted the police by locating and putting them into contact with two witnesses. Although the witnesses in question previously denied having any significant information relating to the murder, the private investigator encourages police to re-interview them.

But the involvement of the private investigator with the police investigation is not disclosed to the defence; and police take steps to keep the private investigator’s name confidential.

After the Crown reveals the private investigator’s involvement to defence counsel at trial, they move for a mistrial. The Trial Judge finds a breach of the duty to disclose, but concludes a short adjournment and further cross-examination of witnesses would remedy the breach. The Court of Appeal disagrees; finding that in these circumstances, the failure to disclose the private investigator’s involvement precludes full answer and defence. As such, the only reasonable and fair remedy is a mistrial.


Is there a risk in using private investigators, or involving other non-lawyers, in the defence of serious criminal charges? In this case, the private investigator became concerned that the Appellant was guilty of murder and “hoped that he would be convicted”. The private investigator was also worried that the police were not doing enough to investigate the case. Rather than assist the defence team, the investigator switched teams and provided assistance to the police – he even took steps to assist them in gaining the confidence of key witnesses for the prosecution. (See paras. 40-42).

Mr. Webb described his request for confidentiality this way: “My concern was I was working through Mr. Tan [Appellant’s trial counsel] and I didn’t want word getting back to him about this.” Thereafter, the police treated him as though he had confidential informer status. (See para. 36). Somewhat ironically, rather than help the prosecution, Mr. Webb’s involvement (and non-disclosure of same) ultimately resulted in a mistrial.

Citing R. v. Dixon, 1998 CanLII 805 (SCC), the Court of Appeal noted that answering whether late disclosure impairs/does not impair an accused’s right to make full answer and defence as guaranteed by s. 7 of the Charter is a two-step inquiry:

  • First, the undisclosed information must be examined to determine what impact it may have had on the decision to convict; and
  • Second, even if the undisclosed information does not itself affect the reliability of the conviction, the effect of the non-disclosure on overall trial fairness must be considered. (See paras. 63-64).

The Court of Appeal disagreed with the Trial Judge’s application of this two-step inquiry as follows:

By determining the materiality of the undisclosed information using the yardstick of whether that evidence related to the case against the appellant, the judge restricted the meaning of “full answer and defence” to the ability of an accused to respond to the merits of the Crown’s case.

In my view, such limiting is a legal error. The right to make full answer and defence includes not only the ability to challenge the Crown’s case on the merits but also the ability to advance reasonable Charter and/or other process-oriented responses to the charges. (See paras. 75-76).

The Court of Appeal tempered its criticism by acknowledging the challenge posed by the revelation of Mr. Webb’s involvement in the midst of the trial:

I do not want to appear overly critical of the trial judge. The startling revelation of Webb’s relationship with the police, and how to deal with it in the middle of a murder trial before a jury, caught everyone by surprise. There were no precedents for guidance. Trial counsel presented his argument for a mistrial in three parts that blurred and overlapped which may have resulted in confusion. (See para. 84).

For the Court of Appeal, the Crown conduct herein “undermined the essence of procedural protections given to the accused” and “significantly infringed” the Appellant’s right to a fair trial. (See paras. 126-127). With respect to the remedy, the Court of Appeal found that a mistrial was appropriate in these circumstances:

The novelty and complexity of the situation which amounted to a potential abuse of process arising as it did in the middle of a jury trial, is exactly the type of an “extreme” situation contemplated by Supreme Court of Canada jurisprudence such as R. v. O’Connor, ¶77 and R. v. Bjelland, ¶23-27 which demands a remedy more drastic than an adjournment. Put otherwise, to be “responsive to the circumstances of the breach of the accused’s disclosure rights” (R. v. Korski, ¶93), a mistrial was required.

Counsel for the Appellant: Ian Smith and James Bray (Fenton Smith Barristers, Toronto)

Counsel for the Respondent: Jennifer MacLellan, Q.C. (Public Prosecution Service, Halifax)