R. v. Bero (C.), (2000) 137 O.A.C. 336 (CA)

• Judge: Osborne, A.C.J.O., Doherty and Charron, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 03, 2000
• Jurisdiction: Ontario
• Citations: (2000), 137 O.A.C. 336 (CA);2000 CanLII 16956 (ON CA);2000 CanLII 16956 (NS CA);151 CCC (3d) 545;39 CR (5th) 291;[2000] CarswellOnt 4096;[2000] OJ No 4199 (QL);12 MVR (4th) 169;137 OAC 336;79 CRR (2d) 83

R. v. Bero (C.) (2000), 137 O.A.C. 336 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. NO.016

Her Majesty the Queen (respondent) v. Casey Bero (appellant)

(C30048)

Indexed As: R. v. Bero (C.)

Ontario Court of Appeal

Osborne, A.C.J.O., Doherty and Charron, JJ.A.

November 3, 2000.

Summary:

A court composed of a judge and jury found Bero guilty of impaired driving causing bodily harm and driving with an excessive blood-alcohol content. The court sentenced Bero to 30 months in jail. Bero appealed his convictions only.

The Ontario Court of Appeal allowed the appeal and ordered a new trial.

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 - Bero was charged with impaired driving offences following a motor vehicle accident - Identity was at issue - The vehicle was destroyed just before Bero requested the Crown to retain it so he could examine and conduct forensic testing on it - Bero moved for a stay of proceedings arguing that the prosecution's failure to maintain custody of the vehicle denied him his constitutional right to make full answer and defence - The trial judge dismissed the motion - Bero was found guilty and appealed - The Ontario Court of Appeal allowed the appeal - The court held that the destruction of the vehicle amounted to a breach of the Crown's disclosure obligations and resulted in a breach of Bero's s. 7 Charter rights to full disclosure as an adjunct to his right to make full answer and defence - The court added that the Crown's actions also constituted an abuse of process - The court ordered a new trial, holding that a stay was not an appropriate remedy - See paragraphs 16 to 55.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3133 ].

Civil Rights - Topic 8380.20

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - New trial - [See Civil Rights - Topic 3133 ].

Civil Rights - Topic 8585

Canadian Charter of Rights and Freedoms - Practice - Time for deciding Charter issues - At the outset of trial, the accused moved for a stay of proceedings on the basis of a violation of his constitutional right to make full answer and defence - The trial judge heard the motion right away and dismissed it - The accused was eventually found guilty of the offences charged against him - He appealed - The Ontario Court of Appeal allowed the appeal and ordered a new trial - The court held that the trial judge should not have ruled on the motion at the outset of the trial - Except where the appropriateness of a stay was manifest at the outset of proceedings, a trial judge should reserve on motions such as the motion presented here until after the evidence was heard - See paragraphs 16 to 18.

Criminal Law - Topic 137

General principles - Rights of accused - Right to cross-examine - Bero was charged with impaired driving offences following a motor vehicle accident - Identity was at issue - The vehicle was destroyed just before Bero requested the Crown to retain it so he could examine and conduct forensic testing on it - At trial, the trial judge refused to permit the defence to question witnesses to establish the potential significance to the defence of the unavailability of the vehicle for forensic testing - Bero was found guilty and appealed - The Ontario Court of Appeal allowed the appeal and ordered a new trial - The court held that the trial judge should have permitted questioning on: (1) the reasons for the vehicle's destruction; (2) the tests which could have been conducted but were not; and (3) the possible results of the tests which could have been conducted and, given the other evidence in the case, the likelihood of obtaining probative evidence going to the identity of the driver - See paragraphs 56 to 67.

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - The Ontario Court of Appeal held that it would not give effect to an argument that came down to the contention that an accused should receive a new trial on the ground that had he chosen to challenge the admissibility of evidence at trial he might have been successful - See paragraphs 8 to 14.

Cases Noticed:

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161 (S.C.C.), refd to. [para. 14].

R. v. D.J.B. (1993), 16 C.R.R.(2d) 381 (Ont. C.A.), refd to. [para. 18].

R. v. S.A. (1992), 60 O.A.C. 324 (C.A.), refd to. [para. 18].

R. v. La (H.K.), [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81; 116 C.C.C.(3d) 97, consd. [para. 18].

Hung Duc Vu - see R. v. La (H.K.).

R. v. Vu (H.D.) - see R. v. La (H.K.).

Vu (H.D.) - see R. v. La (H.K.).

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241; 122 C.C.C.(3d) 1, dist. [para. 29].

R. v. F.C.B. (2000), 182 N.S.R.(2d) 215; 563 A.P.R. 215; 142 C.C.C.(3d) 540 (C.A.), consd. [para. 30].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R.(2d) 193; 8 C.R.(4th) 277; 68 C.C.C.(3d) 1, refd to. [para. 31].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 82 C.C.C.(3d) 193, refd to. [para. 31].

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; 103 C.C.C.(3d) 1; [1996] 2 W.W.R. 153, refd to. [para. 42].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 112 C.C.C.(3d) 289, refd to. [para. 44].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 57].

R. v. Howard, [1989] 1 S.C.R. 1337; 96 N.R. 81; 34 O.A.C. 81; 48 C.C.C.(3d) 38, consd. [para. 63].

Counsel:

Edward J. Sapiano, for the appellant;

Erin MacCarthy, for the respondent.

This appeal was heard on September 1, 2000, by Osborne, A.C.J.O., Doherty and Charron, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was released on November 3, 2000, by Doherty, J.A.