R. v. Black (W.J.),

• Judge: Ritter, O'Brien and Bielby, JJ.A.
• Neutral Citation: 2011 ABCA 349
• Citation: 2011 ABCA 349,(2011), 515 A.R. 319,[2012] 3 WWR 637,515 AR 319,54 Alta LR (5th) 12,[2001] AJ No 1291 (QL),532 WAC 319,532 W.A.C. 319,(2011), 515 AR 319,515 A.R. 319,[2001] A.J. No 1291 (QL)
• Date: 04 October 2011
• Court: Court of Appeal (Alberta)

R. v. Black (W.J.) (2011), 515 A.R. 319; 532 W.A.C. 319 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. DE.034

Attorney General of Alberta (respondent/respondent) v. William Joseph Black (respondent/respondent) and Chief of Police, Edmonton Police Service (appellant/applicant)

(1003-0219-A; 2011 ABCA 349)

Indexed As: R. v. Black (W.J.)

Alberta Court of Appeal

Ritter, O'Brien and Bielby, JJ.A.

December 5, 2011.

Summary:

The accused was charged with impaired driving and driving over .08. The accused applied to the Provincial Court trial judge for an order requiring disclosure of the Edmonton Police Service records relating to the calibration of the approved screening device (ASD). The Provincial Court judge ordered the Crown to provide the calibration records for the three months before the offence date and the two months after the offence date. He concluded that, based on relevance, the logs were first party disclosure items and subject to the normal rules of disclosure, rather than the O'Connor rules relating to third party disclosure. The Chief of Police and the Crown each filed a notice of motion seeking an order in the nature of certiorari to quash the production.

The Alberta Court of Queen's Bench, in a decision reported at (2010), 498 A.R. 229, dismissed the applications. The Chief of Police and the Crown appealed.

The Alberta Court of Appeal, Bielby, J.A., dissenting, allowed the appeals and granted certiorari to both the Chief of Police and the Crown. The court concluded that certiorari was available to the appellants, that in this case the ASD logs constituted third party disclosure, and that, in any event, the testing results were not relevant to the investigating officer's formulation of reasonable and probable grounds or for any other purpose.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration record, etc.) - The accused was charged with impaired driving and driving over .08 - The accused applied to the Provincial Court trial judge for an order requiring disclosure of the Edmonton Police Service records relating to the calibration of the approved screening device (ASD) - The Provincial Court judge ordered the Crown to provide the calibration records for the three months before the offence date and the two months after the offence date - The Chief of Police and the Crown each sought an order in the nature of certiorari to quash the production - The reviewing judge dismissed the applications - The Chief of Police and the Crown appealed - The Alberta Court of Appeal allowed the appeals and granted certiorari to both the Chief of Police and the Crown - The reviewing judge, relying on R. v. McNeil (S.C.C.), held that all relevant information in the hands of the police must be disclosed to accused persons as a matter of first party disclosure even if the information was not part of the "fruits of the investigation" - He erred in law in coming to that conclusion - The logs were not created for the purposes of this investigation - The logs were not the fruits of the investigation and the records were properly items of third party disclosure to which the O'Connor regime applied - The accused did not advance a proper O'Connor application and no analysis under that regime was conducted by either the reviewing judge or the trial judge - Had an O'Connor application been brought on the evidence and materials before the reviewing judge and the trial judge, it would not have been successful - The logs were not relevant to the charges the accused faced - See paragraphs 29 to 53.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Criminal Law - Topic 1386.4 ].

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - [See Criminal Law - Topic 1386.4 ].

Criminal Law - Topic 7121

Extraordinary remedies - Certiorari - General (incl. scope of review) - [See Criminal Law - Topic 7125 ].

Criminal Law - Topic 7125

Extraordinary remedies - Certiorari - Standing - The accused was charged with impaired driving and driving over .08 - The accused applied to the Provincial Court trial judge for disclosure of the Edmonton Police Service records relating to the calibration of the approved screening device - The Provincial Court judge ordered the Crown to provide the calibration records for the three months before the offence date and the two months after the offence date - The Chief of Police and the Crown each sought an order in the nature of certiorari to quash the production - The applications were dismissed - The Chief of Police and the Crown appealed - The Alberta Court of Appeal considered whether certiorari was available to the Chief of Police and the Crown - With respect to the Chief of Police, because his office was the repository of the logs, and because the disclosure order directly affected him as it compelled him to provide the logs to the Crown for disclosure purposes, he enjoyed the right to seek certiorari as this was his only means of asserting any right vested in him - Because the Chief was a third party to the proceedings, there was no restriction on the type of errors that he could rely on to seek certiorari; the remedy was available to the Chief for errors based on excess of jurisdiction and errors of law - Certiorari was also available to the Crown in this case - With respect to the scope of the availability of certiorari to the Crown, the court stated that if the order was such that it immediately and finally disposed of a legal right, then certiorari would be available to the Crown for both errors of jurisdiction and errors of law on the face of the record - If the order was of a preliminary nature only, then the more traditional jurisdictional error would be required before the Crown could obtain certiorari - The court concluded that the Crown could seek the discretionary order of certiorari for both errors of jurisdiction and errors of law on the face of the record - See paragraphs 15 to 28.

Police - Topic 2212

Duties - General duties - Disclosure of information - [See Criminal Law - Topic 1386.4 ].

Cases Noticed:

R. v. Gubins, 2009 ONCJ 80, refd to. [para. 10].

R. v. Pfaller, 2009 ONCJ 216, refd to. [para. 10].

R. v. Robertson, 2009 ONCJ 388, refd to. [para. 10].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 120 D.L.R.(4th) 12, refd to. [para. 11].

R. v. Russell (D.), [2001] 2 S.C.R. 804; 274 N.R. 247; 150 O.A.C. 99; 2001 SCC 53, refd to. [para. 11].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [paras. 12, 57].

R. v. Gingras (1992), 120 A.R. 300; 8 W.A.C. 300; 71 C.C.C.(3d) 53 (C.A.), refd to. [para. 18].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 20].

R. v. Earhart (B.) (2007), 305 B.C.A.C. 1; 515 W.A.C. 1; 2007 BCCA 614, refd to. [para. 21].

R. v. Forsythe, [1980] 2 S.C.R. 268; 32 N.R. 520, refd to. [para. 21].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34, refd to. [para. 21].

Cohen and Quebec (Attorney General), Re, [1979] 2 S.C.R. 305; 27 N.R. 344, refd to. [para. 21].

R. v. Deschamplain (D.), [2004] 3 S.C.R. 601; 347 N.R. 287; 211 O.A.C. 323; 2004 SCC 76, refd to. [para. 21].

R. v. N.S. et al. (2010), 269 O.A.C. 306; 102 O.R.(3d) 161; 2010 ONCA 670, refd to. [para. 21].

R. v. Dubois, [1986] 1 S.C.R. 366; 66 N.R. 289; 41 Man.R.(2d) 1, refd to. [para. 21].

R. v. Cunningham - see Cunningham v. Lilles et al.

Cunningham v. Lilles et al., [2010] 1 S.C.R. 331; 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280; 2010 SCC 10, refd to. [para. 24].

R. v. Black (W.J.) (2010), 498 A.R. 229; 2010 ABQB 461, refd to. [para. 36].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [paras. 42, 60].

R. v. Musurichan (1990), 107 A.R. 102 (C.A.), refd to. [paras. 43, 65].

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332 (C.A.), refd to. [paras. 43, 65].

R. v. Hutton (1990), 106 A.R. 116 (C.A.), refd to. [para. 43].

R. v. Arthurs (1981), 12 Sask.R. 95; 63 C.C.C.(2d) 572 (C.A.), refd to. [para. 43].

R. v. Yurechuk (1982), 42 A.R. 176; 23 Alta. L.R.(2d) 136 (C.A.), refd to. [paras. 43, 59].

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. 56].

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. 56].

R. v. Oduneye (S.O.) (1995), 169 A.R. 353; 97 W.A.C. 353 (C.A.), refd to. [para. 64].

R. v. Caruth (R.K.) (2009), 474 A.R. 139; 479 W.A.C. 139; 2009 ABCA 342, refd to. [para. 65].

Counsel:

J.R. Russell, for the respondent, Attorney General of Alberta;

Y.R. Ziv, for the respondent, William Joseph Black;

J.M. Raven-Jackson and K.M. Haymond, for the appellant, Chief of Police, Edmonton Police Service.

This appeal was heard on October 4, 2011, before Ritter, O'Brien and Bielby, JJ.A., of the Alberta Court of Appeal. The reasons for judgment reserved of the Court of Appeal were filed on December 5, 2011, including the following opinions:

Ritter, J.A. (O'Brien, J.A., concurring) - see paragraphs 1 to 53;

Bielby, J.A., dissenting - see paragraphs 54 to 80.