R. v. Bjelland (J.C.), (2009) 460 A.R. 230 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 30, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 460 A.R. 230 (SCC);2009 SCC 38

R. v. Bjelland (J.C.) (2009), 460 A.R. 230 (SCC);

      462 W.A.C. 230

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] A.R. TBEd. JL.099

Jason Chester Bjelland (appellant) v. Her Majesty The Queen (respondent)

(32446; 2009 SCC 38; 2009 CSC 38)

Indexed As: R. v. Bjelland (J.C.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ.

July 30, 2009.

Summary:

The accused was charged with importing cocaine (22 kgs) and possession of cocaine for the purposes of trafficking. The Crown provided late disclosure respecting two witnesses the Crown intended to call at trial. The accused sought a stay of proceedings. Alternatively, he sought an order excluding the evidence or an order for disclosure and for costs of the motion. The trial judge refused a stay but excluded the evidence of the two witnesses under s. 24(1) of the Charter because the Crown had made unjustifiably late disclosure. The trial proceeded and the accused was acquitted. The Crown appealed.

The Alberta Court of Appeal, Brooker, J.A., dissenting, in a decision reported at 425 A.R. 293; 418 W.A.C. 293, allowed the appeal and ordered a new trial. The accused appealed as of right.

The Supreme Court of Canada, Binnie, Fish and Abella, JJ., dissenting, dismissed the appeal.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right of accused to obtain evidence - Right to cross-examine witness before trial - The Supreme Court of Canada stated that "[t]he appellant also says that his right to a fair trial was prejudiced because he was denied the right to cross-examine Friedman and Holland at a preliminary hearing. Cross-examining a witness at a preliminary hearing, however, is not a component of the right to make full answer and defence. What is protected under s. 7 is the right to make full answer and defence at trial, not the right to cross-examine a witness at a preliminary hearing... There is no independent Charter right to cross-examine a witness at a preliminary inquiry. As stated above, s. 7 of the Charter protects the right of the accused to make full answer and defence. As indicated, in order to make full answer and defence, the Crown must provide the accused with disclosure (see Stinchcombe). However, this does not mean that the accused has a Charter right to a particular method of disclosure... if Crown disclosures are otherwise complete, then the accused's s. 7 right has not been infringed by his not being able to cross-examine a witness at a preliminary hearing. The discovery purpose of the preliminary inquiry has been met through other means, such as providing the accused with witness statements." - See paragraphs 32 to 36.

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 and fourth Civil Rights - Topic 8368 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that "[w]hile the exclusion of evidence will normally be a remedy under s. 24(2), it cannot be ruled out as a remedy under s. 24(1). However, such a remedy will only be available in those cases where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system." - See paragraph 19.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that "[a]part from ensuring trial fairness, there is one other circumstance in which late disclosed evidence might be excluded. That is where to admit the evidence would compromise the integrity of the justice system. Thus, a trial judge should only exclude evidence for late disclosure in exceptional cases: (a) where the late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (b) where exclusion is necessary to maintain the integrity of the justice system. Because the exclusion of evidence impacts on trial fairness from society's perspective insofar as it impairs the truth-seeking function of trials, where a trial judge can fashion an appropriate remedy for late disclosure that does not deny procedural fairness to the accused and where admission of the evidence does not otherwise compromise the integrity of the justice system, it will not be appropriate and just to exclude evidence under s. 24(1)." - See paragraphs 23 and 24.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that the appropriate focus in most cases of late or insufficient disclosure under s. 24(1) was the remediation of prejudice to the accused - However, the safeguarding of the integrity of the justice system would also be a relevant concern - The court stated that "... the prejudice complained of must be material and not trivial. For example, the exclusion of evidence may be warranted where the evidence is produced mid-trial after important and irrevocable decisions about the defence have been made by the accused. Even then, it is for the accused to demonstrate how the late disclosed evidence would have affected the decisions that were made. For purposes of trial fairness, only where prejudice cannot be remedied by an adjournment and disclosure order will exclusion of evidence be an appropriate and just remedy. There may also be instances where an adjournment and disclosure order may not be appropriate because admission of evidence compromises the integrity of the justice system... where an accused is in pre-trial custody, an adjournment that significantly prolongs the custody before trial may be seen as compromising the integrity of the justice system. The exclusion of evidence may also be an appropriate and just remedy where the Crown has withheld evidence through deliberate misconduct amounting to an abuse of process. Yet even in such circumstances, society's interest in a fair trial that reaches a reliable determination of the accused's guilt or innocence based on all of the available evidence cannot be ignored. This will especially be true where the underlying offense is a serious one... In clear cases, however, the exclusion of evidence may be an appropriate and just remedy under s. 24(1) in order to preserve the integrity of the justice system." - See paragraphs 26 and 27.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with importing cocaine (22 kg) and possession of cocaine for the purposes of trafficking - The Crown provided late disclosure respecting two witnesses the Crown intended to call at trial - The trial judge held that the accused's right to make full answer and defence had been violated (Charter, s. 7), declined to stay the proceedings but excluded the evidence of the two witnesses under s. 24(1) of the Charter - The trial proceeded and the accused was acquitted - The Alberta Court of Appeal allowed the Crown's appeal and ordered a new trial - The trial judge erred by failing to consider whether a less severe remedy than the exclusion of significant evidence could cure the harm done to the accused by the late disclosure, while still preserving the integrity of the justice system - The Supreme Court of Canada dismissed the accused's appeal - The material that was ultimately provided to the accused was sufficient disclosure of the Crown's case against him - The accused could make full answer and defence as guaranteed by s. 7 of the Charter without the need to cross-examine these witnesses at a preliminary inquiry - The prejudice resulting from this late Crown disclosure would therefore have been cured by an adjournment to provide the accused with an opportunity to consider the new evidence against him - Unlike the exclusion of the impugned evidence ordered by the trial judge, an adjournment would have preserved society's interest in a fair trial while still curing the prejudice to the accused - See paragraphs 28 to 39.

Civil Rights - Topic 8380.16

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Adjournments - [See second, third and fourth Civil Rights - Topic 8368 ].

Civil Rights - Topic 8380.21

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Discovery or production of evidence - [See second, third and fourth Civil Rights - Topic 8368 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3128 and fourth Civil Rights - Topic 8368 ].

Criminal Law - Topic 137

General principles - Rights of accused - Right to cross-examine - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 3581

Preliminary inquiry - Evidence - Cross-examination of Crown witnesses - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3128 and fourth Civil Rights - Topic 8368 ].

Cases Noticed:

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. [paras. 15, 51].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [paras. 18, 53].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 20].

R. v. Horan (K.) (2008), 240 O.A.C. 313; 237 C.C.C.(3d) 514; 2008 ONCA 589, refd to. [para. 20].

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. [paras. 21, 60].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [paras. 22, 65].

R. v. Arviv (1985), 8 O.A.C. 92; 51 O.R.(2d) 551 (C.A.), refd to. [para. 33].

R. v. Sterling (R.), Sterling (L.) and Sterling (T.) (1993), 113 Sask.R. 81; 52 W.A.C. 81 (C.A.), refd to. [para. 35].

R. v. Grant (D.) (2009), 253 O.A.C. 124; 391 N.R. 1; 2009 SCC 32, refd to. [para. 47].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 53].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 53].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 53].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 57].

Osenton (Charles) & Co. v. Johnston, [1942] A.C. 130 (H.L.), refd to. [para. 57].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163, refd to. [para. 65].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 65].

Pearse v. Pearse (1846), 1 De G. & Sm. 12; 63 E.R. 950, refd to. [para. 65].

Statutes Noticed:

Canadian Charter of Rights and  Freedoms, 1982, sect. 24(1) [para. 18].

Authors and Works Noticed:

Freedman, Samuel, Admissions and Confessions, in Salhany, Roger E., and Carter, Robert, J., Studies in Canadian Criminal Evidence (1972), p. 99 [para. 65].

Salhany, Roger E., and Carter, Robert, J., Studies in Canadian Criminal Evidence (1972), p. 99 [para. 65].

Counsel:

C. John Hooker, for the appellant;

Croft Michaelson and Robert A. Sigurdson, for the respondent.

Solicitors of Record:

Lord, Russell, Tyndale, Hoare, Calgary, Alberta, for the appellant;

Public Prosecution Service of Canada, Calgary, Alberta, for the respondent.

This appeal was heard on November 20, 2008, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered in both official languages on July 30, 2009, and the following opinions were filed:

Rothstein, J. (McLachlin,  C.J.C., LeBel and Deschamps, JJ., concurring) - see paragraphs 1 to 40;

Fish, J., dissenting (Binnie and Abella, JJ., concurring) - see paragraphs 41 to 70.