R. v. Bennett (J.G.), (2011) 312 Nfld. & P.E.I.R. 148 (NLPC)

• Judge: Joy, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: April 12, 2011
• Jurisdiction: Newfoundland and Labrador
• Citations: (2011), 312 Nfld. & P.E.I.R. 148 (NLPC)

R. v. Bennett (J.G.) (2011), 312 Nfld. & P.E.I.R. 148 (NLPC);

    971 A.P.R. 148

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. AU.022

R. v. John George Bennett

(2011 PCNL 1709A01156)

Indexed As: R. v. Bennett (J.G.)

Newfoundland and Labrador Provincial Court

Joy, P.C.J.

July 15, 2011.

Summary:

Bennett was charged with aggravated assault. The Crown applied on the trial date, April 12, 2011, for an adjournment because the transcripts of the complainant and two witnesses' statements were not ready. The RCMP had been unable to find the audio or video recordings until April 11, 2011 at 3:30 p.m. Two RCMP officers had then transcribed the statements overnight. Bennett opposed the application and requested a stay of proceedings.

The Newfoundland and Labrador Provincial Court granted the adjournment on the merits of the application. The court also addressed the providing of transcripts of audio and video statements, and stated that "it is absolutely necessary for proper disclosure and for the reasonable conduct of any trial".

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - The Crown applied for an adjournment because the transcripts of the complainant and two witnesses' statements were not ready - The RCMP had been unable to find the audio or video recordings until April 11, 2011- The circuit court of the Newfoundland and Labrador Provincial Court stated that the Crown "has only done half the job" if disclosure was only in the form of an audio or video statement - "Transcripts of the accused, complainant and witnesses statements are, in my view, the most important part of the disclosure in a criminal case ... The audio and video recordings of statements are also valuable disclosure ... These recordings, however, do have their limitations" - The court mentioned some of the features of court services in Labrador and stated that "[e]lectronic disclosure alone, without the Crown's provision of transcripts of statements, will severely disrupt delivery of legal services in Labrador" - See paragraphs 26 to 51.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - The Crown applied for an adjournment because the transcripts of the complainant and two witnesses' statements were not ready - The RCMP had been unable to find the audio or video recordings until April 11, 2011- The Newfoundland and Labrador Provincial Court addressed the issue of what the duty of the defense was and stated that there was some responsibility of defense to request the information - "[A] general request for disclosure ought to trigger providing the transcripts of the [audio or video] statements once the court has set a trial date. When there is a not guilty plea and the court has set a trial date, then it would be in the interest of defense to make specific requests for transcripts" - See paragraph 50.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - The accused was charged with aggravated assault - The Crown applied on the first trial date, April 12, 2011, for an adjournment because the transcripts of the complainant and two witnesses' statements were not ready - The RCMP had been unable to find the audio or video recordings until April 11, 2011 at 3:30 p.m. - Two RCMP officers had then transcribed the statements overnight - The accused opposed the application and requested a stay of proceedings - The Newfoundland and Labrador Provincial Court granted the adjournment - The charge was serious - The trial date was set partly because the courts' dates in Labrador were always heavily booked - Various appearance dates were set to accommodate the accused's work on a ship and his legal aid application - The accused offered no evidence of the availability or the disability of a witness - See paragraphs 21 to 25.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See both Criminal Law - Topic 129 ].

Evidence - Topic 3092

Documentary evidence - Secondary evidence - General - Transcripts - [See both Criminal Law - Topic 129 ].

Cases Noticed:

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, refd to. [para. 9].

R. v. Davis (G.N.) (1998), 159 Nfld. & P.E.I.R. 273; 492 A.P.R. 273 (Nfld. C.A.), refd to. [para. 9].

R. v. Tohl (M.), [2009] O.A.C. Uned. 312; 2009 ONCA 468, refd to. [para. 9].

R. v. Johnson (T.A.) and Dwyer (A.F.) (1994), 123 Nfld. & P.E.I.R. 205; 382 A.P.R. 205 (Nfld. C.A.), refd to. [para. 9].

R. v. Greganti (S.), [2000] O.T.C. 30 (Sup. Ct.), refd to. [para. 9].

R. v. J.G.C. (2006), 208 O.A.C. 24 (C.A.), refd to. [para. 11].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345, refd to. [para. 11].

R. v. Krueger (D.W.) (2006), 380 A.R. 182; 363 W.A.C. 182; 2006 ABCA 63, refd to. [para. 11].

R. v. Jeddore (P.) (2011), 307 Nfld. & P.E.I.R. 132; 954 A.P.R. 132; 2011 NLTD(G) 63, consd. [para. 14].

R. v. Joyce, 2011 PCNL 1311PA00136, consd. [para. 14].

R. v. Jenniex and House, 2011 PCNL 1311POA00234 & 244, consd. [para. 14].

R. v. Ivarluk (D.), [2005] Nunavut Cases 5; 2005 NUCJ 5, refd to. [para. 26].

R. v. Oszenaris (V.) (2008), 279 Nfld. & P.E.I.R. 280; 856 A.P.R. 280; 2008 NLCA 53, dist. [para. 47].

Counsel:

Jennifer Barnes, for the Crown;

Darlene Neville, for the accused.

This application for adjournment was heard on April 12, 2011, before Joy, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following oral decision with reasons on July 15, 2011, and with written reasons on July 29, 2011.