R. v. Buffalo (L.C.S.), 2009 ABPC 90

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: Thursday November 13, 2008
• Citations: 2009 ABPC 90;(2009), 472 A.R. 199 (PC)

R. v. Buffalo (L.C.S.) (2009), 472 A.R. 199 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MY.074

Her Majesty the Queen (Crown) v. Leonard Clayton Shawn Buffalo (accused)

(071480560p1; 2009 ABPC 90)

Indexed As: R. v. Buffalo (L.C.S.)

Alberta Provincial Court

Rosborough, P.C.J.

March 26, 2009.

Summary:

RCMP officers investigated a motor vehicle accident. As a result, the accused was charged with dangerous driving causing bodily harm (Criminal Code, s. 249(3)), driving while having an excessive blood-alcohol level (s. 253(b)) and impaired driving causing bodily harm (s. 255(2)). Promptly after scheduling the matter for trial, the accused sought disclosure of copies of handwritten notes of two police officers. The request was made three times in writing and once by telephone. The Crown offered no response and did not make the requested disclosure. The accused applied for an order that his s. 7 Charter right to full disclosure had been violated and sought remedies including costs and a judicial stay of proceedings. The accused was provided with the requested disclosure on the first day of trial.

The Alberta Provincial Court held that the accused's s. 7 Charter right to disclosure had been violated. However, the court refused to grant the remedies of costs or stay of proceedings.

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 - RCMP officers investigated a motor vehicle accident - As a result, the accused was charged with driving offences - Promptly after scheduling the matter for trial, the accused sought disclosure of copies of handwritten notes of two police officers - The request was made three times in writing and once by telephone - The Crown offered no response and did not make the requested disclosure - The accused applied for an order that his s. 7 Charter right to full disclosure had been violated - The accused was provided with the requested disclosure on the first day of trial - The Alberta Provincial Court held that the accused's s. 7 Charter right to disclosure had been violated - See paragraphs 10 to 15.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - RCMP officers investigated a motor vehicle accident - As a result, the accused was charged with driving offences - Promptly after scheduling the matter for trial, the accused sought disclosure of copies of handwritten notes of two police officers - The request was made three times in writing and once by telephone - The Crown offered no response and did not make the requested disclosure - The accused applied for an order that his s. 7 Charter right to full disclosure had been violated and sought remedies including, inter alia, a judicial stay of proceedings - The accused was provided with the requested disclosure on the first day of trial - The Alberta Provincial Court held that the accused's s. 7 Charter right to disclosure had been violated - However, the court refused to grant a stay of proceedings - At least some of the information in the handwritten notes and Supplementary Occurrence Reports had already been provided to the accused, albeit in a different form - As the accused was now in possession of the materials and had had sufficient time to review them, it was difficult to see how his ability to make full answer and defence was injuriously affected - Even if there was some residual prejudice, this case would not meet the "clearest of cases" demarcation characteristically demonstrated by cases attracting the remedy of a judicial stay of proceedings - See paragraph 16.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs (incl. cost of defence experts) - RCMP officers investigated a motor vehicle accident - As a result, the accused was charged with driving offences - Promptly after scheduling the matter for trial, the accused sought disclosure of copies of handwritten notes of two police officers - The request was made three times in writing and once by telephone - The Crown offered no response and did not make the requested disclosure - The accused applied for an order that his s. 7 Charter right to full disclosure had been violated and sought remedies including, inter alia, costs - The accused was provided with the requested disclosure on the first day of trial - The Alberta Provincial Court held that the accused's s. 7 Charter right to disclosure had been violated - However, the court refused to award costs - Disclosure practices had evinced, at least in part, a degree of indifference - There was an element of neglect involved in not providing full disclosure well in advance of the trial date or warning the accused that this could not be achieved - Due diligence on the part of the accused did not require three letters, a telephone call and an application for a remedy in order to receive that to which he was entitled or, at the very least, some explanation as to why it was not forthcoming - However, the notes were a relatively minor component of the entire body of information to be disclosed to the accused - Failure to provide timely disclosure of the particular items did not amount to an unacceptable degree of negligence or a marked and substantial departure from the reasonable standards expected of the prosecution - Had the breach of the Crown's duty to disclose met the test for costs, the court would have awarded costs of $6,113.52 - See paragraphs 17 to 28.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [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 ].

Cases Noticed:

R. v. Antinello (J.J.) (1995), 165 A.R. 122; 89 W.A.C. 122 (C.A.), refd to. [para. 11].

R. v. Henkel (J.E.) et al. (2003), 320 A.R. 206; 288 W.A.C. 206; 2003 ABCA 23, refd to. [para. 12].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 159 C.C.C.(3d) 321, refd to. [para. 17].

R. v. Pang (B.L.) (1994), 162 A.R. 24; 83 W.A.C. 24; 95 C.C.C.(3d) 60 (C.A.), refd to. [para. 17].

R. v. Robinson (C.J.) (1999), 250 A.R. 201; 213 W.A.C. 201; 142 C.C.C.(3d) 303 (C.A.), refd to. [para. 19].

R. v. Nethery (M.E.) (2004) 374 A.R. 124; 2004 ABPC 198, refd to. [para. 21].

R. v. McNeil (L.) (2009), 383 N.R. 1; 246 O.A.C. 154; 238 C.C.C.(3d) 353; 2009 SCC 3, refd to. [para. 22].

Counsel:

E. Gilmour, for the Crown;

S. Oleksyn, for the accused.

This application was heard between November 13, 2008, and March 24, 2009, by Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following decision on March 26, 2009.