R. v. Dhillon (G.S.), 2014 BCCA 480

• Judge: Chiasson, Garson and MacKenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 05, 2014
• Jurisdiction: British Columbia
• Citations: 2014 BCCA 480;(2014), 364 B.C.A.C. 112 (CA)

R. v. Dhillon (G.S.) (2014), 364 B.C.A.C. 112 (CA);

    625 W.A.C. 112

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. DE.023

Regina (respondent) v. Gurdev Singh Dhillon (appellant)

(CA033915; 2014 BCCA 480)

Indexed As: R. v. Dhillon (G.S.)

British Columbia Court of Appeal

Chiasson, Garson and MacKenzie, JJ.A.

December 5, 2014.

Summary:

In 2005, the accused was convicted of sexual assault and assault. He was subsequently sentenced to four years' imprisonment. The accused appealed his conviction and sentence.

The British Columbia Court of Appeal, in judgments reported [2006] B.C.A.C. Uned. 114 and (2006), 233 B.C.A.C. 127; 386 W.A.C. 127, dismissed both appeals. The accused served his sentence. Upon his release from custody in 2008, he was deported to India. In 2013, the Supreme Court of Canada remanded the accused's application for leave to appeal to the Court of Appeal to consider fresh evidence and whether the convictions constituted a miscarriage of justice. The Crown conceded that the fresh evidence should be admitted and that the convictions had to be set aside as they constituted a miscarriage of justice. The fresh evidence consisted of undisclosed DNA evidence from the Crown that was not determinative of innocence of guilt, but prejudiced the accused. At issue was the appropriate remedy (acquittal, new trial or stay of proceedings) and whether costs should be awarded against the Crown.

The British Columbia Court of Appeal held that the appropriate remedy was a stay of proceedings under s. 686(8) of the Criminal Code to prevent an abuse of process. A stay could also have been granted under s. 24(1) of the Charter. An acquittal was not appropriate where the undisclosed evidence was not sufficiently cogent as to have resulted in an acquittal. Normally, a new trial would be ordered. However, where the accused had already suffered irreparable prejudice (which would be perpetuated by a new trial) and he had already served his sentence, a new trial would not be in the interests of justice. The court declined to award costs against the Crown, as the failure to disclose the evidence did not constitute a marked and unacceptable departure from the reasonable standards expected of the Crown.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - See paragraphs 26 to 55.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - See paragraphs 26 to 55.

Criminal Law - Topic 255

Abuse of process - Power of court - Re prevention and remedies - See paragraphs 26 to 55.

Criminal Law - Topic 4591

Procedure - Costs - On appeal - Against the Crown - See paragraphs 56 to 62.

Criminal Law - Topic 4958

Appeals - Indictable offences - New trials - Grounds for refusing or staying new trial - See paragraphs 26 to 55.

Criminal Law - Topic 4965.2

Appeals - Indictable offences - New trials -Bars - Where sentence served or partially served - See paragraphs 26 to 55.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - See paragraphs 19 to 25.

Criminal Law - Topic 5058

Appeals - Indictable offences - Substitution of verdict - Substitution of verdict of acquittal - See paragraphs 26 to 55.

Practice - Topic 7347

Costs - Costs in criminal proceedings - Payable by Crown - General - See paragraphs 56 to 62.

Cases Noticed:

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 19].

R. v. Stolar - see R. v. Nielsen and Stolar.

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 20].

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, refd to. [para. 22].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 22].

R. v. Duguay (H.) - see R. v. Taillefer (B.).

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. 22].

R. v. Maciel (R.) (2007), 222 O.A.C. 174; 2007 ONCA 196, refd to. [para. 28].

Truscott, Re (2007), 226 O.A.C. 200; 2007 ONCA 575, refd to. [para. 29].

R. v. D.R.S. (2013), 542 A.R. 92; 566 W.A.C. 92; 2013 ABCA 18, refd to. [para. 31].

R. v. Hinse (R.), [1995] 4 S.C.R. 597; 189 N.R. 321, refd to. [para. 33].

R. v. Bellusci (R.) (2012), 433 N.R. 135; 2012 SCC 44, refd to. [para. 35].

R. v. Smith (B.J.) (2004), 317 N.R. 168; 235 Nfld. & P.E.I.R. 236; 699 A.P.R. 236; 2004 SCC 14, refd to. [para. 35].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 36].

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. 37].

R. v. Nixon (O.) (2011), 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 37].

R. v. Babos (A.) (2014), 454 N.R. 86; 2014 SCC 16, refd to. [para. 38].

R. v. Regan (G.A.) (2002), 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 38].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 38].

R. v. Illes (M.), [2008] 3 S.C.R. 134; 380 N.R. 238; 260 B.C.A.C. 285; 439 W.A.C. 285; 2008 SCC 57, refd to. [para. 55].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 56].

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. 56].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(8) [para. 34].

Counsel:

P.E. Briggs, for the appellant;

P. Wilson, Q.C., for the Crown/respondent.

This appeal was heard on September 26, 2014, at Vancouver, B.C., before Chiasson, Garson and MacKenzie, JJ.A., of the British Columbia Court of Appeal.

On December 5, 2014, MacKenzie, J.A., delivered the following judgment for the Court of Appeal.