R. v. Gregoire (R.P.) et al., 2005 ABQB 340

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 09, 2005
• Citations: 2005 ABQB 340;(2005), 382 A.R. 1 (QB)

R. v. Gregoire (R.P.) (2005), 382 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. JN.026

Her Majesty the Queen (Crown) v. Robert Paul Gregoire and Tamara Dawn Newton (accused)

(030184154Q1; 2005 ABQB 340)

Indexed As: R. v. Gregoire (R.P.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

May 9, 2005.

Summary:

Gregoire and Newton (the accused) were the driver and passenger of a car that police erroneously believed was stolen. Gregoire was initially arrested for possession of stolen property (the vehicle). That charge was never prosecuted. After his arrest, the vehicle was seized and searched. Newton was arrested slightly later based on her own outstanding warrants. As a result of items found in the car, both accused were charged with possession of stolen property and pos­session and production of a controlled sub­stance. The accused applied for a stay of proceedings of those charges. At issue was whether the police had the right to seize and search the vehicle and an underlying issue of whether the police had reasonable grounds to arrest Gregoire before the search and seizure. Permeating these issues was the alleged insufficiency and untimeliness of Crown disclosure. Further, the police claimed solici­tor-client privilege respecting the evidence as to disclosure.

The Alberta Court of Queen's Bench held that there had been late and incomplete disclosure which had deprived Gregoire of crucial evidence as to reasonable grounds for arrest, prejudicing his Charter right to make full answer and defence (trial fairness). A stay of his prosecution was required. Newton had a privacy interest in some items in the vehicle and therefore had standing to chal­lenge the reasonable grounds for Gregoire's arrest and the incidental search and seizure. She was entitled to a stay. Had it not ordered a stay of both prosecutions, the court would have found that there were no reasonable grounds for Gregoire's initial arrest. How­ever, the evidence discovered as a result of the arrest was admissible under s. 24(2) of the Charter. The court held that the Crown had not shown, on a balance of probabilities, that solicitor-client privilege existed regard­ing the evidence on disclosure.

Barristers and Solicitors - Topic 1808

The prosecutor - Duty of disclosure - The Alberta Court of Queen's Bench stated that "A non-lawyer police officer ... is reason­ably entitled to rely on Crown counsel to specify the extent of the search. Therefore, Crown counsel must ensure that the Crown does not accidentally create a misleading impression that the broad disclosure request of the defense has been narrowed, when in fact it still applies in its original broad scope." - See paragraph 148.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 3128 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - Gregoire and Newton (the accused) were the driver and passenger of a car that police erroneously believed was stolen - Gregoire was initially arrested for pos­session of stolen property (the vehicle) - That charge was never prosecuted - After his arrest, the vehicle was seized and searched - As a result of items found in the car, both accused were charged with possession of stolen property and pos­session and production of a controlled substance - The Alberta Court of Queen's Bench held that both accused were entitled to a stay because of late and incomplete disclosure - Had it not ordered a stay of both prosecutions, the court would have found that there were no reasonable grounds for Gregoire's initial arrest, but that the evidence discovered as a result of the arrest was admissible under s. 24(2) of the Charter - The evidence was real and not conscriptive - The breach was not serious: the arrest was not arbitrary and was made in good faith, although on mis­taken or incomplete information - The offenses for which the accused were on trial were serious - See paragraphs 230 to 326.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 3128 ].

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to obtain information or evidence - Gregoire was the driver of a car that police erron­eously believed was stolen - Gregoire was initially arrested for possession of stolen property (the vehicle) - That charge was never prosecuted - After his arrest, the vehicle was seized and searched - As a result of items found in the car, he and his passenger (Newton) were charged with possession of stolen property and pos­session and production of a controlled substance - The Alberta Court of Queen's Bench held that there had been late and incomplete disclosure respecting what the police knew at the time of Gregoire's arrest - This had deprived him of crucial evidence as to reasonable grounds for his arrest, prejudicing his Charter right to make full answer and defence (trial fair­ness) - A stay of his prosecution was required - Although Newton had no pri­vacy interest in the vehicle itself, she did have a privacy interest in specific items in the vehicle - Therefore, she had standing to challenge the grounds for Gregoire's arrest and the incidental search and seizure - She was also entitled to a stay - See paragraphs 1 to 352.

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 Civil Rights - Topic 3128 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Civil Rights - Topic 1651 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - Gregoire and Newton (the accused) were the driver and passenger of a vehicle - They applied for a stay of proceedings - At issue was whether the police had the right to seize and search the vehicle and an underlying issue of whether the police had reasonable grounds to arrest Gregoire before the search and seizure - Permeating these issues was the alleged insufficiency and untimeliness of Crown disclosure - Further, the police claimed solicitor-client privilege respecting the evidence as to disclosure - The Alberta Court of Queen's Bench held that once the court had decided that a document was privileged, the accused had to pass the two-stage test in R. v. Schacher (D.G.) (Alta. C.A.), not before - See paragraph 371.

Evidence - Topic 4246

Witnesses - Privilege - Lawyer-client communications - Evidence and proof - The Alberta Court of Queen's Bench stated that "If the Crown wishes to prove priv­ilege, then it must persuade the court to that effect. A mere assertion of privilege is ... not enough. If the Crown is to meet its burden of proving privilege, then it should submit evidence or argument to persuade the court that the impugned document falls within the definition of solicitor-client privilege. Depending on the specific docu­ment at issue, this evidence can include the document itself, or a summary or descrip­tion of the document. There may be other possibilities, depending on the nature of the document. Submitting the original unedited document itself would, of course, be the most persuasive in some cases." - See paragraph 368.

Evidence - Topic 4246

Witnesses - Privilege - Lawyer-client communications - Evidence and proof - [See second Criminal Law - Topic 4505 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - The Alberta Court of Queen's Bench rejected the proposition that it was enough that some composite of officers together had reasonable grounds to arrest an accused - The court stated that "That would permit capricious arrests to be justi­fied after the fact, on the basis of reason­able grounds at the time of arrest pieced together from multiple officers after the arrest. Therefore, in my opinion, there must be an identifiable single officer." - See paragraph 315.

Cases3 Noticed:

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R. v. Harvie (2001), 9 M.V.R.(4th) 98 (Ont. C.J.), refd to. [para. 205].

R. v. Boru, 2004 CarswellOnt 4720; 2004 ONCJ 270, refd to. [para. 207].

R. v. Greganti (S.), [2000] O.T.C. 30; 142 C.C.C.(3d) 31 (Sup. Ct.), folld. [para. 208].

R. v. Foisy (G.) (2000), 138 O.A.C. 188; 51 O.R.(3d) 161 (C.A.), dist. [para. 210].

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, folld. [para. 210].

R. v. Gladu (1996), 3 C.R.(5th) 104 (Que. S.C.), refd to. [para. 214].

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R. v. Blyth (D.) (1996), 173 N.B.R.(2d) 119; 441 A.P.R. 119; 105 C.C.C.(3d) 378 (C.A.), refd to. [para. 227].

R. v. Leduc (J.) (2003), 174 O.A.C. 242; 66 O.R.(3d) 1 (C.A.), dist. [para. 228].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, appld. [para. 286].

R. v. Mohamad (H.) (2004), 181 O.A.C. 201; 182 C.C.C.(3d) 97 (C.A.), appld. [para. 295].

R. v. Pniak (R.A.), [2003] 1 W.W.R. 162; 220 Sask.R. 107; 2002 SKQB 202, refd to. [para. 309].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, folld. [para. 311].

R. v. Laurier (M.J.) (1997), 86 B.C.A.C. 282; 142 W.A.C. 282 (C.A.), folld. [para. 312].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 330].

Ontario (Attorney General) v. Chow et al., [2003] O.T.C. 1142; 2003 CarswellOnt 5331 (Sup. Ct.), refd to. [para. 343].

R. v. Bowles (D.W.) (2001), 198 N.S.R.(2d) 1; 621 A.P.R. 1; 2001 NSSC 135, refd to. [para. 344].

R. v. Kanak (D.K.) et al., [2003] A.R. Uned. 813; 2003 CarswellAlta 977; 2003 ABPC 113, refd to. [para. 345].

R. v. Kanak (D.K.) (2003), 340 A.R. 286; 2003 ABPC 122, refd to. [para. 346].

R. v. Gauthier (P.) et al. (1998), 82 O.T.C. 377; 1998 CarswellOnt 4636 (Gen. Div.), refd to. [para. 348].

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R. v. Schacher (D.G.) (2003), 339 A.R. 119; 312 W.A.C. 119; 2003 ABCA 313, consd. [para. 359].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201, refd to. [para. 363].

R. v. Castro (J.F.) et al. (2001), 157 B.C.A.C. 97; 256 W.A.C. 97; 157 C.C.C.(3d) 255; 2001 BCCA 507, refd to. [para. 363].

R. v. Polo (A.B.) (2005), 374 A.R. 281; 2005 CarswellAlta 419; 2005 ABQB 250, disagreed with [para. 365].

R. v. Chan (A.H.) et al. (2002), 307 A.R. 232; 2002 ABQB 287, refd to. [para. 367].

R. v. Chapelstone Developments Inc. et al. (2004), 277 N.B.R.(2d) 350; 727 A.P.R. 350; 191 C.C.C.(3d) 152; 2004 NBCA 96, refd to. [para. 372].

R. v. Reid (M.O.) et al., [2004] B.C.T.C. 599; 2004 CarswellBC 1051; 2004 BCSC 599, leave to appeal refused (2004), 205 B.C.A.C. 143; 337 W.A.C. 143; 2004 BCCA 580, refd to. [paras. 373, 374].

Counsel:

Patricia Giroux (Dept. of Justice), for the Crown;

Gordon W. Collins, for the accused, Robert Paul Gregoire;

J. MacLeod Walker, for the accused, Tam­ara Dawn Newton.

This application was heard by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on May 9, 2005.