R. v. Gowing (S.A.) et al., (2012) 532 A.R. 312 (QB)

• Judge: Shriar, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 08, 2012
• Citations: (2012), 532 A.R. 312 (QB);2012 ABPC 38

R. v. Gowing (S.A.) (2012), 532 A.R. 312 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. FE.110

Her Majesty the Queen v. Scott A. Gowing and Shawn Richard Lutz

(100265370P1; 2012 ABPC 38)

Indexed As: R. v. Gowing (S.A.) et al.

Alberta Provincial Court

Shriar, P.C.J.

February 8, 2012.

Summary:

Following a traffic stop, police seized approximately 160 pounds of alleged psilocybin ("magic mushrooms") from the accused's vehicle. Following analysis, all of the seized substance was destroyed. The accused were charged with drug offences. They alleged Charter breaches. A voir dire was held. The Crown closed its case on the voir dire. The defence was granted an adjournment. Four days later, the Crown applied to re-open its case to call a police witness who would testify that all of the destroyed substance was psilocybin.

The Alberta Provincial Court dismissed the application.

Editor's Note: For the court's decision on the voir dire, see (2012), 532 A.R. 325

Criminal Law - Topic 4570

Procedure - Conduct of trial - Re-opening of trial to hear additional evidence - On the Crown's application to reopen its case in a voir dire, the Alberta Provincial Court stated that the "keystone principle" in determining the application was whether the accused would be prejudiced in his or her defence - The authorities distinguished between Crown applications to re-open made at three different stages: (1) before the Crown closed its case; (2) immediately after closing, but before the defence elected whether or not to call evidence; and (3) after the defence had started to answer the case against it - The ambit of judicial discretion narrowed as the case progressed due to the increasing likelihood of prejudice - At the first stage, there was "broad latitude" - At the second stage, re-opening was permissible "to correct some oversight or inadvertent omission" provided that justice required re-opening and there was no prejudice to the defence - At the third stage, re-opening was rare - The question of what was required in the interests of justice was directed more to protecting the interests of the accused than to serving the wider social interests represented by the Crown - See paragraphs 10 to 18.

Criminal Law - Topic 4570

Procedure - Conduct of trial - Re-opening of trial to hear additional evidence - Following a traffic stop, police seized approximately 160 pounds of alleged psilocybin ("magic mushrooms") from the accused's vehicle - Following analysis, all of the seized substance was destroyed - The accused were charged with drug offences - They alleged Charter breaches - A voir dire was held - The Crown closed its case on the voir dire - The defence was granted an adjournment - Four days later, the Crown applied to re-open its case to call a police witness who would testify that all of the destroyed substance was psilocybin - The Alberta Provincial Court dismissed the application - The proposed Crown evidence was important to its theory of the case and did not concern a mere formal or procedural matter - However, the need for evidence of the type proposed ought to have been foreseen - There was no defence conduct that either directly or indirectly misled the Crown - No good reason had been shown for omitting to address the matter earlier - Because the accused had neither testified nor closed their case, the court had broader discretion to allow the Crown application - However, the proposed evidence effectively changed the nature of the case against the accused - There had never been disclosure regarding the proposed witness in the context of these purposes, including no disclosure of evidence showing some basis for the witness' anticipated conclusions - To allow the application would substantially change the Crown's case, undermining and altering the long extant basis for counsels' advice to their clients and, further, would cause additional delay - This would significantly affect trial fairness and would prejudice the accused in their defences - See paragraphs 90 to 109.

Criminal Law - Topic 5214.91

Evidence and witnesses - Admissibility and relevancy - Voir dire - Re-opening - [See both Criminal Law - Topic 4570 ].

Cases Noticed:

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 10].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 10].

R. v. Singh (1941), 76 C.C.C. 248; 56 B.C.R. 282 (C.A.), refd to. [para. 12].

R. v. Dill (T.T.) (2005), 375 A.R. 210 (Q.B.), refd to. [para. 35].

R. v. Wu, 2010 ABCA 337, refd to. [para. 36].

R. v. Huluszkiw, [1963] 1 O.R. 157 (C.A.), refd to. [para. 38].

R. v. Crawford, [1984] O.J. No. 2288, refd to. [para. 40].

R. v. Champagne et al., [1970] 2 C.C.C. 273; 8 C.R.N.S. 245 (B.C.C.A.), refd to. [para. 68].

R. v. F.S.M. (1996), 93 O.A.C. 201 (C.A.), refd to. [para. 93].

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. 96].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 104].

Counsel:

Anita B. Szabo, Q.C., for the Crown;

Eleanor J. Funk, for the accused, Gowing;

Peter A. Hoare, for the accused, Lutz.

This application was heard at Calgary, Alberta, by Shriar, P.C.J., of the Alberta Provincial Court, who delivered the following decision on February 8, 2012.