R. v. Dumont (D.L.), (2002) 308 A.R. 334 (PC)

• Judge: Lefever, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: March 28, 2002
• Citations: (2002), 308 A.R. 334 (PC);2002 ABPC 44

R. v. Dumont (D.L.) (2002), 308 A.R. 334 (PC)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AP.024

Her Majesty The Queen v. Donald Lawrence Dumont

(91104596P1; 2002 ABPC 44)

Indexed As: R. v. Dumont (D.L.)

Alberta Provincial Court

Lefever, P.C.J.

March 28, 2002.

Summary:

The accused was charged with impaired driving and refusing to comply with a breathalyzer demand. The accused sought a dismissal of the charges or a stay of proceedings, alleging that late disclosure of the breathalyzer technician's notes violated the accused's s. 7 Charter rights. The accused also sought costs against the Crown. The Charter application was orally dismissed, with reasons to follow upon completion of the trial. Following the trial, judgment was reserved on the impaired driving charge and the accused was acquitted on the breathalyzer refusal charge.

The Alberta Provincial Court found the accused guilty of impaired driving. The Charter application was dismissed because the inadvertent nondisclosure, which did not prejudice the accused, warranted only an adjournment. This was not one of those "clearest of cases" where a stay of proceedings was warranted. Further, there was no justification for an award of costs against the Crown. However, bringing the Charter application, without a factual basis and with intent to deceive the court, was an abuse of process warranting an order that the accused's counsel be personally liable to pay the Crown $3,000 in costs.

Barristers and Solicitors - Topic 841

Duty to court - Liability for costs - General - The Alberta Provincial Court, in discussing the court's jurisdiction to award costs against defence counsel personally, stated that "an award is appropriate where there is conduct amounting to an outright planned attempt to abuse the court process, or conduct that reflects negatively upon the reputation and function of the criminal court. ... An attack on the integrity of Crown counsel and other witnesses, and thereby the court, should also be addressed and remedied. The most appropriate way to do this in a case where the application has proceeded in open court is to recognize the abuse of the court process, and discourage defence counsel from repeating this same conduct, through an order of costs against counsel." - See paragraphs 178 to 179.

Barristers and Solicitors - Topic 848.1

Duty to court - Liability for costs - For improper motions or applications - The Crown inadvertently breached its duty to disclose a breathalyzer technician's notes in an impaired driving case, thereby violating the accused's s. 7 Charter right to make full answer and defence - The accused's counsel's allegation of deliberate nondisclosure or fabrication of evidence, made to support his application for a stay of proceedings, had no factual basis and was made with the intent of deceiving the court - The Alberta Provincial Court held that absent prejudice to the accused by late disclosure, the appropriate remedy was an adjournment rather than a stay of proceedings - Although the lack of a stay did not preclude an award of costs against the Crown, costs were not warranted absent a marked and unacceptable departure from the reasonable standards expected of the prosecution - However, bringing the Charter application was an abuse of process and warranted an order that the accused's counsel personally pay to the Crown $3,000 in costs - See paragraphs 115 to 196.

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 first Criminal Law - Topic 4505 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Criminal Law - Topic 4505 ].

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - [See Barristers and Solicitors - Topic 848.1 ].

Civil Rights - Topic 8380.16

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Adjournments - [See first Criminal Law - Topic 4505 ].

Courts - Topic 8409

Provincial courts - Alberta - Provincial Court - Jurisdiction - Costs - The Alberta Provincial Court discussed the court's jurisdiction to award costs against the Crown for a Charter rights violation and against an accused (or his counsel) for inappropriate Charter applications - See paragraphs 116 to 136.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - An accused charged with impaired driving sought disclosure of the breathalyzer technician's checksheet, including any notes made on the back of the last page - This request was misunderstood by Crown counsel, who replied that no such notes existed - In fact, at trial it was discovered that such notes did exist and had not been disclosed - An adjournment was granted to permit disclosure - The accused sought a stay of proceedings on the ground that the late disclosure violated the accused's s. 7 Charter right to make full answer and defence - The accused alleged that nondisclosure was either deliberate or the notes were fabricated after the event - The allegation was made with knowledge of its untruth or recklessly without caring whether it was true or not - The Alberta Provincial Court dismissed the stay application - Late disclosure violated the accused's s. 7 Charter rights - However, absent prejudice to the accused, an adjournment was the appropriate remedy - This was not one of those clearest of cases where a stay of proceedings was warranted - See paragraphs 66 to 114.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Provincial Court stated that "the Crown: (a) has a general duty to the accused and the court to disclose all relevant evidence in the possession of the Crown at the time disclosure is made; (b) is not required to review in extenso the material gathered from state authorities including the police in order to catalogue or list evidence included within the disclosure package; (c) has a discretion to withhold disclosure of the clearly irrelevant; (d) is not required to go out and interview police witnesses and include the information so obtained in disclosure; and (e) the performance of this general duty must be reviewed within the concrete factual contexts such as this application. ... It is now clear that the duty of disclosure extends to police officers independently of the Crown." - See paragraphs 71 to 72.

Criminal Law - Topic 4572

Procedure - Conduct of trial - Seating of accused - The Alberta Provincial Court noted that where an accused's identity was at issue, it was inappropriate for counsel to have someone other than the accused sit at the counsel table without advising the court that the person sitting there would not be the accused - The court cautioned against a repeat of such conduct - See paragraph 13.

Practice - Topic 7351

Costs - Costs in criminal proceedings - Payable by Crown - Charter violations - The Alberta Provincial Court discussed its jurisdiction to award costs against the Crown for a breach of an accused's s. 7 Charter rights in making late disclosure - Costs as a remedy was available only in "circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution" - See paragraphs 116 to 125.

Practice - Topic 7351

Costs - Costs in criminal proceedings - Payable by Crown - Charter violations - [See Barristers and Solicitors - Topic 848.1 ].

Cases Noticed:

R. v. 974649 Ontario Inc. et al. (2001), 279 N.R. 345; 154 O.A.C. 345 (S.C.C.), refd to. [para. 4].

R. v. Kozoway (K.W.) (1993), 142 A.R. 323 (Q.B.), refd to. [para. 13].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1; 83 Alta. L.R.(2d) 193, refd to. [para. 67].

R. v. Siemens (F.) (1998), 209 A.R. 375; 160 W.A.C. 375; 122 C.C.C.(3d) 552 (C.A.), refd to. [para. 70].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63; 63 C.C.C.(3d) 385, refd to. [para. 72].

R. v. Caccamo, [1976] 1 S.C.R. 786; 4 N.R. 133; 21 C.C.C.(2d) 257, refd to. [para. 72].

R. v. O'Grady (G.L.) (1995), 64 B.C.A.C. 111; 105 W.A.C. 111 (C.A.), refd to. [para. 73].

R. v. Jack (B.G.) (1992), 76 Man.R.(2d) 168; 10 W.A.C. 168; 70 C.C.C.(3d) 67 (C.A.), refd to. [para. 73].

R. v. Greganti (S.), [2000] O.T.C. 30; 142 C.C.C.(3d) 31 (Sup. Ct.), refd to. [para. 74].

R. v. L.A.T. (1993), 64 O.A.C. 380; 14 O.R.(3d) 378 (C.A.), refd to. [para. 75].

Swietlinski v. Ontario (Attorney General), [1994] 3 S.C.R. 481; 172 N.R. 321; 75 O.A.C. 161; 33 C.R.(4th) 295, refd to. [para. 85].

R. v. Swietlinski - see Swietlinski v. Ontario (Attorney General).

R. v. Rourke, [1978] 1 S.C.R. 1021; 35 C.C.C.(2d) 129; 76 D.L.R.(3d) 193, refd to. [para. 86].

R. v. Orysiuk (1977), 6 A.R. 548; 37 C.C.C.(2d) 445; 1 C.R.(3d) 111 (C.A.), refd. to. [para. 86].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; 21 C.C.C.(3d) 7, refd to. [para. 86].

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; 89 C.C.C.(3d) 1, refd to. [para. 88].

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, refd to. [para. 88].

R. v. Burns (1994), 7 M.V.R.(3d) 11 (Alta. Prov. Ct.), refd to. [para. 102].

R. v. Pang (B.L.) (1993), 139 A.R. 135; 95 C.C.C.(3d) 60 (Prov. Ct.), refd to. [para. 117].

R. v. Robinson (C.J.), [2000] 3 W.W.R. 125; 250 A.R. 201; 213 W.A.C. 201; 142 C.C.C.(3d) 303 (C.A.), refd to. [para. 118].

R. v. Jedynack (1994), 16 O.R.(3d) 612 (Gen. Div.), refd to. [para. 120].

R. v. Onevathana (S.) et al. (2002), 306 A.R. 345 (Q.B.), refd to. [para. 128].

Abraham v. Jutsun, [1963] 2 All E.R. 402 (C.A.), refd to. [para. 130].

Young v. Young (1990), 75 D.L.R.(4th) 46 (B.C.C.A.), refd to. [para. 131].

Winnipeg (City) v. Cupeiro, [1993] M.J. No. 313 (Prov. Ct.), refd to. [para. 137].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 29 D.L.R.(4th) 161, refd to. [para. 141].

R. v. Romanowicz (J.) (1999), 124 O.A.C. 100; 45 O.R.(3d) 506 (C.A.), refd to. [para. 144].

Doyle v. R., [1977] 1 S.C.R. 597; 9 N.R. 285; 10 Nfld. & P.E.I.R. 45; 17 A.P.R. 45; 68 D.L.R.(3d) 270, refd to. [para. 146].

R. v. Vaillancourt, [1981] 1 S.C.R. 69; 35 N.R. 597; 58 C.C.C.(2d) 31, refd to. [para. 148].

Quebec (Attorney General) v. Cronier (1982), 63 C.C.C.(2d) 437 (Que. C.A.), refd to. [para. 149].

Meyers v. Elman, [1939] 4 All E.R. 484 (H.L.), refd to. [para. 162].

Kent v. Waldock, [1995] B.C.J. No. 1126 (S.C.), refd to. [para. 165].

Holden & Co. v. Crown Prosecution Service, [1990] 1 All E.R. 368 (C.A.), refd to. [para. 166].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 167].

Authors and Works Noticed:

Law Society of Alberta, Code of Professional Conduct, c. 1, rule 3 [para. 187]; c. 10, rule 9 [para. 35]; rule 21 [para. 188].

Morgan, Controlling Prosecutorial Powers - Judicial Review, Abuse of Process and Section 7 of the Charter (1986), 29 Crim. L.Q. 15, pp. 20, 21 [para. 85].

Counsel:

B. Rosborough and E. Wheaton, for the Crown;

B. Gunn, for the accused.

This case was heard before Lefever, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on March 28, 2002.