R. v. Myers (W.D.J.), (2015) 470 Sask.R. 178 (QB)

Judge:Barrington-Foote, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:February 19, 2015
Jurisdiction:Saskatchewan
Citations:(2015), 470 Sask.R. 178 (QB);2015 SKQB 59
 
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R. v. Myers (W.D.J.) (2015), 470 Sask.R. 178 (QB)

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Temp. Cite: [2015] Sask.R. TBEd. MR.034

Her Majesty the Queen v. Woody Dustin James Myers (accused)

(2014 Q.B.J. No. 1; 2015 SKQB 59)

Indexed As: R. v. Myers (W.D.J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barrington-Foote, J.

February 19, 2015.

Summary:

The accused was charged with second degree murder. He applied for a mistrial based on the Crown's failure to disclose notes that were taken by the lead police investigator.

The Saskatchewan Court of Queen's Bench allowed the application and declared that there had been a mistrial.

Barristers and Solicitors - Topic 1611.1

Relationship with client - Conflict of interest or duties - Acting for accused where former client a Crown witness - [See Civil Rights - Topic 8380.20 ].

Barristers and Solicitors - Topic 1619

Relationship with client - Conflict of interest or duties - Situations resulting in a conflict - [See Civil Rights - Topic 8380.20 ].

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 - [See Civil Rights - Topic 8380.20 ].

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 8380.20 ].

Civil Rights - Topic 8380.20

Canadian Charter of Rights and Freedoms - Denial of Rights - Remedies - New trial or mistrial - Myers was charged with second degree murder in the death of his biological mother (Shepherd) - By the time of the preliminary inquiry, the Crown and defence counsel were aware that a page was missing from the notes taken by the lead police investigator - Defence counsel requested the missing page but it was unintentionally not disclosed - When the Crown's final witness was on the stand at Myers' trial, it was discovered that the missing page recorded a telephone conversation between the officer and Shepherd's sister, and disclosed that Shepherd's boyfriend (Bigsky) had allegedly threatened to kill her - Myers applied for a mistrial, arguing that his ss. 7 and 11(d) Charter rights were violated - The Saskatchewan Court of Queen's Bench allowed the application - The Crown breached its duty to disclose - Myers' right to make full answer and defence was impaired, as he was denied the opportunity to explore other lines of inquiry, such as whether Bigsky had the opportunity to commit the murder - A mistrial was required given that defence counsel was now unable to continue representing Myers - The two defence counsel were members of Legal Aid, the office that represented Bigsky in 2012 when he was charged with a domestic assault on Shepherd - As a result of this conflict of interest, they were unable to investigate the allegation contained in the missing page, and unable to cross-examine Bigsky.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 8380.20 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See Civil Rights - Topic 8380.20 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 8380.20 ].

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - [See Civil Rights - Topic 8380.20 ].

Cases Noticed:

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. 19].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 20].

R. v. Cunningham - see Cunningham v. Lilles et al.

Cunningham v. Lilles et al., [2010] 1 S.C.R. 331; 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280; 2010 SCC 10, refd to. [para. 28].

R. v. Brissett (K.), [2005] O.T.C. 81; 74 O.R.(3d) 248 (Sup. Ct.), refd to. [para. 30].

Counsel:

D. Kim Jones and Maura C. Landry, for the Crown;

Catherine T. Maloney and Matthew J. Llewellyn, for the accused.

This application was heard before Barrington-Foote, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on February 19, 2015.

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