R. v. Bailey (G.S.), (2014) 589 A.R. 212 (PC)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 13, 2014
• Citations: (2014), 589 A.R. 212 (PC);2014 ABPC 104

R. v. Bailey (G.S.) (2014), 589 A.R. 212 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.080

Her Majesty the Queen v. Garth Stanley Bailey (100344266P1; 2014 ABPC 104)

Indexed As: R. v. Bailey (G.S.)

Alberta Provincial Court

Fradsham, P.C.J.

May 13, 2014.

Summary:

The accused was charged with fraud over $5,000, conspiracy to commit fraud, money laundering and conspiracy to commit money laundering. He applied for a declaration and a stay of proceedings under s. 24 of the Charter, claiming that his rights under ss. 7, 11(b) and 11(d) had been violated.

The Alberta Provincial Court dismissed the application. There was no Charter breach.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right of accused to obtain information or evidence - The Alberta Provincial Court discussed generally the Crown's duty to disclose all relevant evidence to the defence within the context of s. 7 of the Charter - See paragraphs 84 to 97 - The court stated, inter alia, "Non-disclosure generally only violates section 7 of the Charter if it impairs the accused's right to full answer and defence ... Before the commencement of a trial, non-disclosure can usually be remedied by a disclosure order, combined with an adjournment where necessary to enable defence counsel to review the disclosed information. Although a finding of a breach of section 7 is not a precondition to a disclosure order, if section 7 is breached (because lack of disclosure has adversely impacted the accused's ability to make full answer and defence), a disclosure order, coupled with an adjournment, is generally the appropriate remedy under section 24(1) of the Charter ..." - See paragraph 95.

Civil Rights - Topic 3130

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Delay (Charter, s. 7) - Pre-charge delay - The accused was charged with criminal offences on March 22, 2010, alleged to have taken place between March 1, 2001 and May 31, 2004 - He alleged that the six year pre-charge delay violated his rights under ss. 7 and 11(d) of the Charter - The Alberta Provincial Court held that there was no evidence that the delay prejudiced the accused's right to a fair trial or his ability to make full answer and defence - Nor did the evidence establish that the police conducted a deficient or negligent investigation or that the Crown's actions amounted to an abuse of process - The court reiterated that success in a pre-charge delay application was very rare - There was no breach of ss. 7 or 11(d) - See paragraphs 110 to 122.

Civil Rights - Topic 3130

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Delay (Charter, s. 7) - Pre-charge delay - The Alberta Provincial Court discussed the issue of pre-charge delay in the context of ss. 7 and 11(d) of the Charter - See paragraphs 13 to 37 - The court stated, inter alia, "... pre-charge delay must be assessed on a different basis than post-charge delay, which is determined under section 11(b). Pre-charge delay is considered under the doctrine of abuse of process under section 7, or as an infringement of a fair trial under section 11(d). If a breach of either section is found, then the remedy is the same as 11(b) - a judicial stay of proceedings. However, in comparison to section 11(b) applications, the chance of success in a pre-charge delay application is extremely slim, and usually reserved for cases which have egregious facts" - See paragraph 18.

Civil Rights - Topic 3130

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Delay (Charter, s. 7) - Pre-charge delay - The Alberta Provincial Court discussed the issue of pre-charge delay in the context of ss. 7 and 11(d) of the Charter - See paragraphs 13 to 37 - The court stated, inter alia, that "... to succeed in an application under sections 7 and 11(d) based on pre-charge delay, the accused must establish significant legal prejudice, which has adversely impacted the accused's ability to make full answer and defence or his or her right to have a fair trial. Even then, a stay under section 24(1) will only be granted in the clearest of cases" - See paragraph 37.

Civil Rights - Topic 3133

Trials - Due process - Fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The Alberta Provincial Court discussed the matter of deficient police investigation in the context of ss. 7 and 11(d) of the Charter - See paragraphs 98 to 109 - The court stated, inter alia, that "an accused does not have a constitutional right to direct the conduct of a criminal investigation, not does an accused have a free-standing constitutional right to an adequate investigation of the charges against him or her ... Inadequacies in an investigation may lead to a specific Charter breach, but an inadequate investigation, in and of itself, does not constitute a denial of the right to make full answer and defence ..." - See paragraph 98.

Civil Rights - Topic 3133

Trials - Due process - Fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3128 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to a fair trial - [See Civil Rights - Topic 3128 and all Civil Rights - Topic 3130 ].

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The Alberta Provincial Court discussed doctrine of abuse of process within the context of s. 7 of the Charter - See paragraphs 70 to 83 - The court stated, inter alia, that the jurisprudence established that "... there was no longer any need to distinguish between the doctrine of abuse of process under the common law and its consideration under the Charter. The only instances where there may be a need to maintain a distinction will be in those instances in which the Charter, for some reason, does not apply (e.g., where the situation does not involve state actions, such as a private prosecution). Nevertheless, for all purposes, there is now only one doctrine, and abuse of process is considered under section 7 of the Charter ..." - See paragraph 73.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See second Civil Rights - Topic 3130 ].

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - [See second Civil Rights - Topic 3265 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Alberta Provincial Court reviewed the factors applicable in determining when a post-charge delay constituted a violation of s. 11(b) of the Charter - See paragraphs 38 to 69.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The accused was charged with criminal offences on March 22, 2010, which were alleged to have taken place between March 1, 2001 and May 31, 2004 - The trial commenced in late 2013 - The accused alleged that the post-charge delay of over nine years violated his right to be tried within a reasonable time contrary to s. 11(b) of the Charter - The Alberta Provincial Court noted that the first time the accused raised a s. 11(b) Charter concern was in August 2013, about a month before trial and approximately nine months after the trial dates were agreed to by the defence (i.e., too late for the Crown to remedy a breach) - The court held that the accused waived in whole his right to complain of the delay - See paragraphs 123 to 129.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The Alberta Provincial Court discussed the doctrine of abuse of process within the context of s. 7 of the Charter - The court stated that "Regardless of whether the abuse causes prejudice to the accused's fair trial interests or to the integrity of the justice system, the test for granting a stay of proceedings is the same. A stay will only be appropriate when (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice ..." - See paragraph 77.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See third Civil Rights - Topic 3130 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 251

Abuse of process - General principles - [See first Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3128 ].

Cases Noticed:

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191; 48 C.C.C.(3d) 459, refd to. [para. 13].

R. v. Carter (1986), 67 N.R. 375; 52 C.R.(3d) 100 (S.C.C.), refd to. [para. 18].

R. v. W.K.L., [1991] 1 S.C.R. 1091; 124 N.R. 146; 64 C.C.C.(3d) 321, refd to. [para. 19].

R. v. Grimes (D.W.) (1998), 209 A.R. 360; 160 W.A.C 360; 1998 ABCA 9, refd to. [para. 21].

R. v. Sample (D.) (2002), 315 A.R. 261; 2002 ABQB 57, refd to. [para. 24].

R. v. R.J.C. (2011), 526 A.R. 138; 2011 ABQB 555, refd to. [para. 29].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 39].

R. v. MacDougall (P.A.), [1998] 3 S.C.R. 45; 231 N.R. 147; 168 Nfld. & P.E.I.R. 83; 517 A.P.R. 8; 1998 CanLII 763, refd to. [para. 46].

R. v. Gallant (C.A.), [1998] 3 S.C.R. 80; 231 N.R. 190; 168 Nfld. & P.E.I.R. 126; 517 A.P.R. 126, refd to. [para. 46].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 57 C.R.(3d) 289, refd to. [para. 47].

R. v. Godin (M.), [2009] 2 S.C.R. 3; 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 55].

R. v. Chorney (H.Q.) (2008), 435 A.R. 369; 2008 ABPC 32, refd to. [para. 56].

R. v. Neil (D.L.) (2001), 301 A.R. 253; 2001 ABQB 474, refd to. [para. 61].

R. v. Dallin (P.) (2013), 574 A.R. 380; 2013 ABQB 615, refd to. [para. 69].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; 1985 CanLII 47, refd to. [para. 71].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1;  1995 CanLII 51, refd to. [para. 72].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 75].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81; 1997 CanLII 322, refd to. [para. 75].

R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 76].

R. v. Darwish (W.H.) (2010), 258 O.A.C. 272; 252 C.C.C.(3d) 1; 100 O.R.(3d) 579; 2010 ONCA 124, leave to appeal refused (2010), 410 N.R. 399; 279 O.A.C. 399; 2010 CanLII 61140 (S.C.C.), refd to. [para. 80].

R. v. Dias (G.) (2011), 502 A.R. 156; 517 W.A.C. 156; 2010 ABCA 382; 2011 ABCA 6, refd to. [para. 81, footnote 2].

R. v. Paxton (D.W.) (2012), 531 A.R. 233; 2012 ABQB 96, refd to. [para. 81, footnote 2].

R. v. Levin (A.) (2013), 549 A.R. 264; 2013 ABQB 31, refd to. [para. 81, footnote 2].

R. v. Eddy (D.M.) (2014), 583 A.R. 217; 2014 ABQB 164, refd to. [para. 81, footnote 2].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 85].

R. v. McNeil (L.) (2009), 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 87].

R. v. Beauchamp (H.), [2008] O.T.C. Uned. B66; 2008 CanLII 27481 (Sup. Ct.), refd to. [para. 88].

R. v. La (H.K.), [1997] 2 S.C.R. 690; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81; 1997 CanLII 309, refd to. [para. 89].

R. v. West (R.G.), [2001] O.T.C. 711 (Sup. Ct.), refd to. [para. 98].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 100].

Maxwell v. Wal-Mart Canada Corp. et al. (2013), 573 A.R. 123; 2013 ABQB 625, refd to. [para. 102].

R. v. Dias (G.) (2011), 502 A.R. 156; 517 W.A.C. 156; 2010 ABCA 382, refd to. [para. 103].

R. v. Kennedy (S.) (2004), 369 A.R. 273; 2004 ABQB 686, refd to. [para. 104].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 123].

R. v. Heikel and Sutton (1992), 125 A.R. 298; 14 W.A.C. 298 (C.A.), refd to. [para. 127].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 7, sect. 11(b), sect. 11(d), sect. 24 [para. 12].

Counsel:

Steven Johnston and Bill Wagner, for the Crown;

Andrea Serink, for the accused.

This application was heard before Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following decision on May 13, 2014.