R. v. Nethery (M.E.), 2004 ABPC 198

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 04, 2004
• Citations: 2004 ABPC 198;(2004), 374 A.R. 124 (PC)

R. v. Nethery (M.E.) (2004), 374 A.R. 124 (PC)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. NO.049

Her Majesty The Queen v. Murray Ellis Nethery

(030845457P101001-002; 2004 ABPC 198)

Indexed As: R. v. Nethery (M.E.)

Alberta Provincial Court

Allen, P.C.J.

November 4, 2004.

Summary:

An accused was charged with driving while having an excessive blood-alcohol level and impaired driving. The accused objected to the breath technician testifying at trial on the basis that the Crown had not provided the notice for expert testimony required by s. 657.3(3) of the Criminal Code. The accused also asserted that the Crown had contravened his s. 7 Charter right to disclosure. The accused sought a stay of proceedings or costs pursuant to s. 24(1) of the Charter.

The Alberta Provincial Court held that the Crown was not required to provide notice under s. 657.3(3). The court concluded that the Crown had failed in its disclosure duty, but held that it was not appropriate to grant a stay or award costs pursuant to s. 24(1).

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 - The Alberta Provincial Court stated that "An accused in a criminal trial has a right to disclosure of all relevant material in the Crown's possession unless there is a claim of privilege. Material is relevant if it could reasonably be used by the defence in meeting the case for the Crown, advancing a defence, or otherwise in making a decision that may affect the conduct of the defence. The right of disclosure is one of the components of the right to make full answer and defence. Failure to provide relevant evidence is a discrete infringement of s. 7 of the Charter. An accused need not prove additional requirement of showing prejudice to demonstrate that his or her s. 7 right of disclosure has been infringed. The accused need only demonstrate a reasonable possibility that the undisclosed information could have been used in meeting the Crown's case, advancing a defence or otherwise making a decision that could have affected the conduct of the defence." - See paragraph 60.

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - An accused was charged with impaired driving offences - The Crown breached the accused's s. 7 Charter rights by failing to disclose the statements of the civilian witnesses that it intended to call at trial - The accused sought a stay or costs under s. 24(1) - The accused's counsel submitted that, inter alia, had disclosure been timely, the accused would have been advised to plead guilty and that the lost opportunity to plead guilty resulted in the accused being penalized under the administrative license suspension provisions - The Alberta Provincial Court stated that the issue of the license suspension, and speculation with respect to the timing of the plea, had no bearing on the issue of whether the accused had suffered prejudice to the right to make full answer and defence or the remedies sought - The court noted that the accused had continued on with the trial after the nature of the undisclosed information was made clear - See paragraph 70.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - An accused's counsel wrote the Crown requesting disclosure of a lengthy list of items, including statements from witnesses - The Crown made disclosure - A disclosed police report indicated that statements from civilian witnesses were attached to the report - The statements were not attached - The accused's counsel sent a copy of the same disclosure request to the Crown - The Crown responded but did not disclose the witness statements - At trial the Crown sought to call two civilian witnesses - The accused sought a stay or costs based on a violation of his s. 7 Charter right to disclosure - The Alberta Provincial Court denied a stay - The non-disclosure was due to inadvertence - Had the second disclosure request specified why further disclosure was required, the Crown would have been alerted to the non-disclosure - Although the accused might be faced with a different trial than originally anticipated, this did not mean that he would be denied a fair trial - The court denied costs where the accused had not established that there was an unacceptable departure from the reasonable standard of prosecution - See paragraphs 59 to 75.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - [See Civil Rights - Topic 8374 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - An accused was charged with impaired driving offences (Criminal Code, s. 253) - The accused objected to the breath technician's testimony because the Crown had not provided the notice for expert testimony required by s. 657.3(3) of the Criminal Code - The Alberta Provincial Court stated that generally a qualified breath technician was an expert - In many circumstances, the Crown would have to comply with the notice requirements in s. 657.3(3) when calling a qualified technician - However, in a prosecution under s. 253 the Crown did not have to send a s. 657.3(3) notice because it was calling a qualified breath technician to testify concerning the prerequisites set out in s. 258(1)(c) - Alternatively, the proper remedy was an adjournment so that the accused could be given proper notice and material that summarized the information that the Crown proposed to elicit from the technician - That remedy had already been provided to the accused - See paragraphs 15 to 29 and 76.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133 ].

Evidence - Topic 7003

Opinion evidence - Expert evidence - General - Procedural prerequisites to admission of - [See Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. McQuaid (D.) (2003), 334 A.R. 137 (Q.B.), refd to. [para. 17].

R. v. Mousseau (T.M.) (2003), 347 A.R. 119 (Q.B.), refd to. [para. 20].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402; 114 D.L.R.(4th) 419; 29 C.R.(4th) 243, refd to. [para. 22].

R. v. Frerichs (1981), 30 A.R. 70; 59 C.C.C.(2d) 234 (C.A.), refd to. [para. 23].

R. v. Zaccaria (N.G.), [2004] A.R. Uned. 320 (C.A.), refd to. [para. 26].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1; 8 C.R.(4th) 277, refd to. [para. 30].

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; 122 C.C.C.(3d) 1, consd. [para. 32].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81: 142 D.L.R.(4th) 595; 112 C.C.C.(3d) 289, refd to. [para. 38].

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; [1996] 2 W.W.R. 153; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1; 29 W.C.B.(2d) 152, refd to. [para. 39].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81; 116 C.C.C.(3d) 97, refd to. [para. 40].

R. v. Henkel (J.E.) et al. (2003), 320 A.R. 206; 288 W.A.C. 206; 172 C.C.C.(3d) 387 (C.A.), refd to. [para. 42].

R. v. Peekeekoot (O.J.) (2002), 311 A.R. 95 (Prov. Ct.), refd to. [para. 45].

R. v. Biscette (S.) (1995), 169 A.R. 81; 97 W.A.C. 81; 99 C.C.C.(3d) 326 (C.A.), refd to. [para. 47].

R. v. Biscette (S.), [1996] 3 S.C.R. 599; 203 N.R. 244; 187 A.R. 392; 127 W.A.C. 392; 110 C.C.C.(3d) 285, refd to. [para. 48].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81; 118 C.C.C.(3d) 443, refd to. [para. 49].

R. v. Giroux (L.), [2001] O.T.C. 983 (Sup. Ct.), refd to. [para. 55].

R. v. Clairoux, [1995] O.J. No. 1148 (C.J.), refd to. [para. 56].

R. v. Derose (A.S.) (2002), 326 A.R. 241 (Prov. Ct.), refd to. [para. 57].

R. v. Deets (R.R.), [2004] A.R. Uned. 18; 2004 ABQB 8, folld. [para. 70].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 657.3 [para. 19].

Counsel:

R. Prithipaul, for the applicant;

J. McCombe, for the respondent.

These matters were heard by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on November 4, 2004.