R. v. Eddy (D.M.), (2014) 583 A.R. 217 (QB)

• Judge: Acton, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 20, 2014
• Citations: (2014), 583 A.R. 217 (QB);2014 ABQB 164

R. v. Eddy (D.M.) (2014), 583 A.R. 217 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MR.096

Her Majesty the Queen (Crown/respondent) v. Denise Marie Eddy (accused/applicant)

(120435839U1; 2014 ABQB 164)

Indexed As: R. v. Eddy (D.M.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Acton, J.

March 20, 2014.

Summary:

The accused was charged in a seven-count indictment of various tax offences under the Income Tax Act, Excise Tax Act and Criminal Code. The accused applied for an order to compel the Crown to disclose information purportedly related to her criminal charges. The accused argued that without disclosure she was unable to make full answer and defence and, therefore, also sought a stay of proceedings under s. 24(1) of the Charter.

The Alberta Court of Queen's Bench held that the Crown had generally met its disclosure obligations. The accused's right to make full answer and defence had not been impaired.

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 all Criminal Law - Topic 4505 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See all Criminal Law - Topic 4505 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - [See all Criminal Law - Topic 4505 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Court of Queen's Bench discussed the Crown's obligation to disclose relevant material - See paragraphs 15 to 23.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused sought disclosure of materials purportedly related to a seven-count indictment respecting various tax offences - In addition to information relating to her own investigation file, she sought information relevant to her alleged affiliation with Paradigm Education Group and its founder, Porisky, who was convicted of similar tax-related offences - The Crown resisted production, claiming that the documents were irrelevant - The Alberta Court of Queen's Bench denied the accused's request for disclosure - Relevance was not established - The accused's right to make full answer and defence had not been impaired - See paragraphs 28 to 59.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused, who was charged with various tax offences, sought access to material that had been redacted based on privilege - She also claimed that the Crown had not identified the type of privilege relied on - The Alberta Court of Queen's Bench held that the manner in which the Crown identified privilege was adequate - Aside from asserting that she wanted un-redacted documents, the accused had taken no steps to demonstrate relevance - Absent a basis to claim relevance, the court refused to order additional disclosure of redacted documents - The court found it unnecessary to inspect the redacted records - There was no reason to believe that the privilege claims were improperly made - Rather, the Crown had complied with their disclosure obligations - The right to make full answer and defence had not been impaired - See paragraphs 60 to 98.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused, who was charged with various tax offences, sought access to sealed material, including an information to obtain a search warrant respecting a company with which she allegedly had an affiliation and the warrant itself - She also sought a detailed list of all other types of records still currently being withheld because they were sealed (i.e., unidentified records the accused suspected might be relevant to her trial) - The Alberta Court of Queen's Bench held that the accused's claim for disclosure of sealed records failed because the documents were either irrelevant as having to do with third party investigations or their existence was denied by the Crown - The accused's right to make full answer and defence had not been impaired - See paragraphs 99 to 102.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused was charged with various tax offences - She sought disclosure of time and date stamps and document metadata - The Crown refused to disclose this information - The accused claimed that she needed that information in order to properly prepare her defence by constructing a time line - The Alberta Court of Queen's Bench denied the accused's disclosure request because the information did not pass the Stinchcombe relevancy threshold - The accused's right to make full answer and defence had not been impaired - See paragraphs 103 to 105 and 112 to 114 and 126 to 132.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused was charged with various tax offences - She sought disclosure of all witness statements and will-say statements that the Crown had in its possession, as well as summaries of witness information where statements had not been obtained - The Crown resisted disclosure, stating that it had no intention of calling any witnesses that it had not disclosed information about, a statement from or notes from - The Alberta Court of Queen's Bench held that if the Crown had not disclosed an existing witness statement on the ground that it did not intend to call that person as a witness, it had to produce that statement - Beyond that, the Crown was not required to produce a will-say statement for the accused - The court rejected the accused's suggestion that where those statements did not exist, the Crown was required to retrieve that information, even in the hands of third parties - See paragraphs 106, 115, 116 and 133 to 138.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused was charged with various tax offences - She raised an issue about the timing of disclosure she received - She claimed that disclosure had to be provided before an accused was required to plead or elect the mode of trial, which she alleged did not occur here - The Alberta Court of Queen's Bench rejected the accused's argument on timing of disclosure - Initial disclosure had to precede election, not all disclosure - Here, the accused was the sole cause of the delay in her election - There was no evidence to suggest that the Crown had failed to provide disclosure within the Stinchcombe timeframe - The accused's right to make full answer and defence had not been impaired - See paragraphs 109, 118, 119 and 141 to 150.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - An accused claimed that she was entitled to have hard copies of all electronic documents (12,500) disclosed by the Crown - She claimed that she had technical difficulties using the CDROMs and that the electronic disclosure was not meaningful disclosure - The Alberta Court of Queen's Bench held that the Crown was not required to provide hard copies - Since a large portion of the documents were seized from the accused's computer, it was unlikely that she did not know how to use them - The Crown's electronic disclosure was organized and efficient, well indexed and easy to navigate - There was meaningful disclosure - The manner in which the Crown organized the material in this file was a model for user-friendly disclosure in an electronic format - The accused's right to make full answer and defence had not been impaired - See paragraphs 151 to 155, 161, 162 and 168 to 175.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused was charged with various tax offences - She complained that the Crown had produced certain material (Binder 11), but had not disclosed it, because the Crown had only made it available for her to view at a government office and refused to provide her with a copy - Binder 11 contained, inter alia, third party income tax information - The Alberta Court of Queen's Bench held that the accused was not entitled to receive copies of this private information - The fact that the Crown made the records available for her to view at all, in the court's opinion, exceeded its disclosure obligations - Requiring her to attend a government office to view the information, while inconvenient, was reasonable in the circumstances - The accused's right to make full answer and defence had not been impaired - See paragraphs 156 to 158, 163 to 165 and 176 to 184.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused was charged with various tax offences - She expressed some concern about certain documents she received as part of the Crown disclosure and how they were provided - She, therefore, requested that all future disclosure be by hard copy and provided by registered mail - The Alberta Court of Queen's Bench held that the accused was not entitled to receive disclosure or other documents from the Crown by registered mail - Not only was it an unnecessary cost, presumably to be borne by the Crown, but it was also beyond the Crown's disclosure obligations - The Crown was entitled to send the accused documents as they became available by any reasonable method that ensured she received them - See paragraphs 59 to 160, 166, 167 and 185.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Court of Queen's Bench discussed what the Crown had to do to demonstrate that information was privileged - The court stated, inter alia, that when an accused applied for disclosure of materials that the Crown claimed were privileged, the accused had the burden of demonstrating why privilege was wrongly claimed - See paragraphs 75 to 95.

Evidence - Topic 4010

Witnesses - "Will say" statements - The Alberta Court of Queen's Bench stated that "... Stinchcombe is clear that will-say statements are not required where the witness will not be called at trial. The purpose of a will-say statement is to summarize the evidence a witness anticipates giving at the trial. Such a statement is to be prepared where a witness statement does not exist. The Crown has no positive obligation to collect will-say statements outside of that" - See paragraph 136.

Cases Noticed:

R. v. Porisky (R.A.) et al., [2012] B.C.T.C. Uned. 67; 2012 BCSC 67, refd to. [para. 6].

R. v. Porisky (R.A.) et al., [2012] B.C.T.C. Uned. 771; 2012 BCSC 771, refd to. [para. 6].

R. v. Anderson (T.) (2013), 423 Sask.R. 61; 588 W.A.C. 61; 2013 SKCA 92, refd to. [para. 12].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 15].

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. 16].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 18].

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. 20].

R. v. Richards (M.) (1997), 100 O.A.C. 215; 34 O.R.(3d) 244 (C.A.), refd to. [para. 23].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 82 C.C.C.(3d) 193, refd to. [para. 23].

R. v. Warawa (A.J.) (1998), 208 A.R. 81; 56 Alta. L.R.(3d) 67 (Q.B.), refd to. [para. 33].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 252 C.C.C.(3d) 23; 2010 NSCA 16, refd to. [para. 48].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 49].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 2002 SCC 73, refd to. [para. 55].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 57].

R. v. Chan (A.H.) et al. (2002), 307 A.R. 232; 2002 ABQB 287, not folld. [para. 81].

R. v. Polo (A.B.) (2005), 374 A.R. 281; 2005 ABQB 250, folld. [para. 82].

Hodgkinson v. Simms, [1989] 3 W.W.R. 132; 33 B.C.L.R.(2d) 129 (C.A.), refd to. [para. 85].

Dorchak v. Krupka (1997), 196 A.R. 81; 141 W.A.C. 81; 1997 ABCA 89, refd to. [para. 86].

R. v. IGL Canada (Western) Ltd. et al., [2007] A.R. Uned. 532; [2008] A.W.L.D. 199; 2007 ABPC 268, folld. [para. 87].

R. v. Boucher, [1955] S.C.R. 16; 10 C.C.C. 263, refd to. [para. 88].

R. v. L.L. (2013), 570 A.R. 287; 300 C.C.C.(3d) 345; 2013 ABQB 531, refd to. [para. 89].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 92].

Dix v. Canada (Attorney General) et al. (2002), 315 A.R. 139; 2002 ABQB 768, refd to. [para. 111].

Garcha v. Canada, 2006 D.T.C. 3354; 2006 TCC 419, dist. [para. 128].

R. v. Darwish (W.H.) (2010), 258 O.A.C. 272; 252 C.C.C.(3d) 1; 100 O.R.(3d) 57; 2010 ONCA 124, refd to. [para. 137].

R. v. Dias (G.) (2011), 502 A.R. 156; 517 W.A.C. 156; 2010 ABCA 382, refd to. [para. 137].

R. v. Paxton (D.W.) (2012), 531 A.R. 233; 2012 ABQB 96, refd to. [para. 137].

R. v. Levin (A.) (2013), 549 A.R. 264; 2013 ABQB 31, refd to. [para. 137].

R. v. Hallstone Products Ltd. et al., [1999] O.T.C. 104; 46 O.R.(3d) 382 (Sup. Ct.), not folld. [para. 155].

R. v. Oszenaris (V.) (2008), 279 Nfld. & P.E.I.R. 280; 856 A.P.R. 280; 2008 NLCA 53, leave to appeal refused (2009), 398 N.R. 38; 297 Nfld. & P.E.I.R. 132; 918 A.P.R. 132 (S.C.C.), refd to. [para. 172].

Blencoe v. Human Rights Commission (B.C.), [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 176].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 44 D.L.R.(4th) 193, refd to. [para. 177].

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; 128 D.L.R.(4th) 98, refd to. [para. 177].

R. v. Dunn (F.A.) et al., [2009] O.T.C. Uned. W79; 251 C.C.C.(3d) 384 (Sup. Ct.), refd to. [para. 177].

783783 Alberta Ltd. v. Canada (Attorney General) et al. (2010), 482 A.R. 136; 490 W.A.C. 136; 322 D.L.R.(4th) 56; 2010 ABCA 226, refd to. [para. 184].

Fearn v. Canada Customs, 2014 ABQB 114, refd to. [para. 189].

R. v. Sydel (E.N.M.), [2010] B.C.T.C. Uned. 1473; [2011] 1 C.T.C. 200; 2010 BCSC 1473, affd. [2011] B.C.A.C. Uned. 34; 2011 BCCA 103, leave to appeal refused (2011), 428 N.R. 389; 313 B.C.A.C. 320; 533 W.A.C. 320 (S.C.C.), refd to. [para. 189].

Meads v. Meads (2012), 543 A.R. 215; 2012 ABQB 571, refd to. [para. 189].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 142 D.L.R.(4th) 595, refd to. [para. 193].

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. 193].

Statutes Noticed:

Rules of Court (Alta.), rule 5.11 [para. 77].

Counsel:

Denise Eddy on her own behalf;

Kent Brown, for the Public Prosecution Service of Canada.

This application was heard on February 13 and 14, 2014, before Acton, J., of the Alberta Court of Queen's Bench, who delivered the following decision on March 20, 2014.