R. v. Martin (K.W.), 2002 SKQB 314

• Judge: Allbright, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 25, 2002
• Jurisdiction: Saskatchewan
• Citations: 2002 SKQB 314;(2002), 222 Sask.R. 125 (QB)

R. v. Martin (K.W.) (2002), 222 Sask.R. 125 (QB)

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. AU.016

Her Majesty The Queen (respondent) v. Kevin William Martin (applicant)

(2000 Q.B.C. No. 1304; 2002 SKQB 314)

Indexed As: R. v. Martin (K.W.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Melfort

Allbright, J.

July 25, 2002.

Summary:

An accused was charged with first degree murder and committed to stand trial following a preliminary inquiry. The committal was subsequently quashed, with the Crown's consent, because of gaps in the preliminary inquiry transcript due to malfunctioning recording equipment. The Crown then preferred a direct indictment under s. 577 of the Criminal Code. The accused sought a stay of proceedings on the ground that, inter alia, his ss. 7 and 11(d) Charter rights to make full answer and defence and to a fair trial were denied by the Crown's failure to make pre-trial disclosure (particularly the address of a Crown witness with whom the accused had a relationship). The accused submitted that the laying of a direct indictment after his committal had been quashed was unlawful, an abuse of process and a denial of his Charter rights, warranting a stay of proceedings. The accused challenged the trust conditions imposed on the information already disclosed by the Crown. The accused also submitted that a Crown witness was his common law spouse and was not competent or compellable to testify against him.

The Saskatchewan Court of Queen's Bench held that the Crown was entitled to prefer a direct indictment under s. 577 of the Criminal Code where the effect of quashing the committal was that no preliminary inquiry had been held. There was no abuse of process or denial of Charter rights. Whether the Crown witness was a common law spouse who was neither compellable nor competent to testify against the accused was an issue to be determined at trial. The refusal to disclose the address and phone number of the witness to the accused's counsel did not constitute an abuse of process. The Crown had no duty to disclose such information. Finally, there was no breach by the Crown of its duty to disclose information. However, the conditions attached to disclosure were somewhat relaxed.

Civil Rights - Topic 8402

Canadian Charter of Rights and Freedoms - Criminal proceedings - Preferring indictments - [See first Criminal Law - Topic 253 ].

Criminal Law - Topic 129.1

General principles - Rights of accused - Duty respecting disclosed information - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - An accused was charged with first degree murder and committed to stand trial following a preliminary inquiry - The committal was subsequently quashed, with the Crown's consent, because of gaps in the preliminary inquiry transcript due to malfunctioning recording equipment - The Crown then preferred a direct indictment under s. 577 of the Criminal Code - The accused submitted that the laying of a direct indictment after his committal had been quashed was unlawful, an abuse of process and a denial of his Charter rights, warranting a stay of proceedings - The Saskatchewan Court of Queen's Bench held that the effect of quashing the committal order was that no preliminary inquiry had been held - Accordingly, s. 577(a) applied and the Crown was entitled to prefer a direct indictment - The direct indictment was not an abuse of process nor a violation of the accused's Charter rights - See paragraphs 25 to 29.

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See Criminal Law - Topic 5410.1 ].

Criminal Law - Topic 3501

Preliminary inquiry - General principles - What constitutes a preliminary inquiry - [See first Criminal Law - Topic 253 ].

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of indictments - [See first Criminal Law - Topic 253 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - An accused charged with first degree murder sought a stay of proceedings on the ground that nondisclosure of information by the Crown violated his Charter rights - The Saskatchewan Court of Queen's Bench held that the obligation to provide ongoing disclosure had, with some exceptions, been complied with - However, trust conditions imposed by the Crown on previously disclosed information was found to be problematic for the accused and his counsel - The trust conditions were relaxed by the court - See paragraphs 49 to 50.

Criminal Law - Topic 5410.1

Evidence and witnesses - Witnesses - Disclosure of address and phone number of witness - The accused was charged with first degree murder - The woman he had a relationship with was a Crown witness - The woman alleged that they were estranged and that she feared the accused - The accused's interim release pending trial precluded him from contacting the woman - The Crown refused to disclose the woman's address or phone number, which the accused submitted was necessary to make full answer and defence - The woman opposed disclosure of such information - The accused submitted that nondisclosure constituted an abuse of process - The Saskatchewan Court of Queen's Bench held that in the face of the woman's refusal to permit her address and phone number to be disclosed, the Crown had no obligation to disclose that information - Accordingly, there was no abuse of process - See paragraphs 39 to 43.

Evidence - Topic 5546

Witnesses - Competency and compellability - Competency - Spouses - The accused was charged with first degree murder - The woman the accused had a relationship with was a Crown witness - The accused submitted that the witness was his common law spouse and was neither competent nor compellable to testify against him - The Saskatchewan Court of Queen's Bench stated that the continued existence of spousal privilege was implicitly recognized by the Supreme Court of Canada - There was no reason to distinguish between traditional marriages and common law marriages - The issue in this case was whether the parties had "irreconcilably separated" or remained in a common law relationship at the time the murder was committed - The issue of whether the accused and witness lived in a common law relationship at the time of the murder was to be resolved at trial - See paragraphs 30 to 38.

Evidence - Topic 5603

Witnesses - Competency and compellability - Compellability - Spouses (incl. common law spouses) - [See Evidence - Topic 5546 ].

Cases Noticed:

R. v. S.W.E. (2000), 189 Sask.R. 239; 216 W.A.C. 239 (C.A.), refd to. [para. 26].

R. v. L'Henaff (G.) (1999), 184 Sask.R. 98 (Q.B.), refd to. [para. 26].

R. v. Hawkins (K.R.) and Morin (C.) (1996), 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 34].

R. v. Salituro (1992), 131 N.R. 161; 50 O.A.C. 125; 68 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 36].

R. v. Sterling (R.) (1993), 113 Sask.R. 81; 52 W.A.C. 81; 84 C.C.C.(3d) 65 (C.A.), refd to. [para. 40].

R. v. Muirhead (G.) (1995), 148 Sask.R. 242; 134 W.A.C. 242 (C.A.), refd to. [para. 50].

Counsel:

Ajit Kapoor and Dhugal Whitbread, for the applicant, Keith William Martin;

John P. Morrall, for the respondent, Crown.

This application was heard before Allbright, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Melfort, who delivered the following judgment on July 25, 2002.