R. v. Lavallee (A.J.J.) et al., (2011) 381 Sask.R. 129 (QB)

• Judge: Gerein, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 08, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 381 Sask.R. 129 (QB);2011 SKQB 299

R. v. Lavallee (A.J.J.) (2011), 381 Sask.R. 129 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. AU.048

Her Majesty the Queen (respondent) v. Ashton Joseph James Lavallee and Ronald Devin Zerr (applicants)

(2008 Q.B.G. No. 25; 2011 SKQB 299)

Indexed As: R. v. Lavallee (A.J.J.) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gerein, J.

August 8, 2011.

Summary:

The accused, Lavallee and Zerr, were charged with the second degree murder and two counts of aggravated assault. The victims' identification of the two accused as participants in the incident was critical to the Crown's case. The accused, Zerr, wished to retain and call two psychologists with expertise in the areas of the reliability of eyewitness testimony and memory to give opinion testimony. The total cost of the two witnesses would be $31,700. The Saskatchewan Legal Aid Commission had agreed to provide $10,000 to cover all costs of expert witnesses. Based on alleged breaches of his ss. 7 and 11(d) Charter rights, Zerr applied for a conditional stay of proceedings pursuant to s. 24(1) of the Charter pending adequate state funding for the expert opinion evidence. He also sought an order that the conditional stay become absolute if adequate funding was not provided in a reasonable time.

The Saskatchewan Court of Queen's Bench dismissed the application.

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 8380.7 ].

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs (incl. cost of defence experts) - Albert Lowenberger, Robert Lowenberger and Kelly Charbonneau became involved in a fight with several other persons - Albert Lowernberger was fatally stabbed - Robert Lowenberger and Charbonneau were injured - The accused, Lavallee and Zerr, were charged with the second degree murder of Albert Lowenberger, and aggravated assault of Robert Lowenberger and Charbonneau - The blood alcohol content of Robert Lowenberger and Charbonneau was respectively 2.2 and 3.3 times the legal limit at the time of the offences - They also had consumed illicit drugs - Their identification of the two accused as participants in the incident was critical to the Crown's case - The accused, Zerr, wished to retain and call two psychologists with expertise in the areas of the reliability of eyewitness testimony and memory to give opinion testimony - The total cost of the two witnesses would be $31,700 - The Saskatchewan Legal Aid Commission had agreed to provide $10,000 to cover all costs of expert witnesses - Based on alleged breaches of his ss. 7 and 11(d) Charter rights, Zerr applied for a conditional stay of proceedings pursuant to s. 24(1) of the Charter pending adequate state funding for the expert opinion evidence - He also sought an order that the conditional stay become absolute if adequate funding was not provided in a reasonable time - The Saskatchewan Court of Queen's Bench dismissed the application - There was no need for the suggested expert witnesses - They would not be permitted to comment on the credibility of the impugned witnesses or the accuracy of their testimony as that would be usurping the role of the jury - The accused could make full answer and defence without the expert testimony - The court was also not persuaded that the suggested funding was necessary - The court stated that "The cost of the experts should be much less and perhaps the funding available will be sufficient".

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 8380.7 ].

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - [See Civil Rights - Topic 8380.7 ].

Evidence - Topic 7068

Opinion evidence - Expert evidence - Particular matters - Eyewitness identification - [See Civil Rights - Topic 8380.7 ].

Cases Noticed:

R. v. Henderson (W.E.), [2009] 7 W.W.R. 489; 239 Man.R.(2d) 69; 2009 MBQB 101, refd to. [para. 13].

R. v. Myrie (F.O.), [2003] O.T.C. 219 (Sup. Ct.), refd to. [para. 13].

R. v. R.J.H. (2006), 405 A.R. 231; 212 C.C.C.(3d) 354; 2006 ABQB 656, dist. [para. 15].

Counsel:

Christopher D. White, for the Crown/respondent;

Jeffery W. Deagle, for the accused/applicant, Ashton Joseph James Lavallee;

Bobby P. Hrycan, for the accused/applicant, Ronald Devin Zerr;

Sharon H. Pratchler, Q.C., for the respondent, the Ministry of Justice and Attorney General, Constitutional Law Branch.

This application was heard before Gerein, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on August 8, 2011.