R. v. Nolet (R.) et al., (2012) 401 Sask.R. 39 (QB)

• Judge: McMurtry, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 03, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 401 Sask.R. 39 (QB);2012 SKQB 200

R. v. Nolet (R.) (2012), 401 Sask.R. 39 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. MY.076

Regent Nolet and John Vatsis (applicants) v. Her Majesty the Queen (respondent)

(2004 Q.B.J. No. 1981; 2012 SKQB 200)

Indexed As: R. v. Nolet (R.) et al.

Saskatchewan Court of Queens' Bench

Judicial Centre of Yorkton

McMurtry, J.

July 3, 2012.

Summary:

The accused, two out-of-province truck drivers, were charged with trafficking in marijuana, possession of marijuana for the purposes of trafficking and possession of proceeds of crime in excess of $5,000, following a random stop of a commercial transport tractor-trailer unit. They applied to exclude evidence from their trial on the basis that the arresting officer violated ss. 8, 9 and 10 of the Charter.

The Saskatchewan Court of Queen's Bench, in a decision reported at 283 Sask.R. 159, allowed the application and excluded the evidence. The accused were acquitted. The Crown appealed.

The Saskatchewan Court of Appeal, Jackson, J.A., dissenting in part, in a decision reported at 320 Sask.R. 179; 444 W.A.C. 179, allowed the appeal, set aside the acquittals, and ordered a new trial. The accused appealed.

The Supreme Court of Canada, in a decision reported at 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51, dismissed the appeal. The new trial proceeded. The Crown disclosed new evidence that was not disclosed during the previous proceedings.

The accused argued that their right to full disclosure under s. 7 of the Charter, their right to make full answer and defence to the charges against them pursuant to s. 11(d), and their right to a trial within a reasonable time pursuant to s. 11(b) had been violated. They sought a stay of proceedings under s. 24(2).

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

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 Criminal Law - Topic 128 ].

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 Criminal Law - Topic 128 ].

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - The accused, two out-of-province truck drivers, were charged with, inter alia, trafficking in marijuana, following a random stop of a commercial transport tractor-trailer unit - Their application to exclude evidence from their trial on the basis that the arresting officer violated ss. 8, 9 and 10 of the Charter was successful at trial but overturned on appeal - A new trial was ordered - The Crown disclosed new evidence that was not disclosed during the previous proceedings - Some evidence that should have been disclosed was no longer available (purged log notes) - The accused argued that the previous Charter applications were litigated on the basis that the traffic stop was random - They alleged that the new Crown disclosure called this assumption into question as it demonstrated that the police had stopped one accused less than one month earlier and were, investigating that accused in the weeks leading up the second stop - They argued that their right to full disclosure under s. 7 of the Charter and their right to make full answer and defence to the charges against them pursuant to s. 11(d) were violated - The Saskatchewan Court of Queen's Bench dismissed the application - The delay in producing some of the evidence was irrelevant - The defence had learned of the police stop and the existence of an Inspection Ticket in the prior proceedings but did not seek a copy of ticket - It appeared that the defence did not consider the first stop to be relevant - There was no evidence, only speculation, that the second stop was orchestrated (not random) - The Crown did not breach the accused's right to make full answer and defence by not preserving the log notes, as there was insufficient evidence to suggest the Crown ought to have known the records were relevant.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See Criminal Law - Topic 128 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Criminal Law - Topic 128 ].

Cases Noticed:

R. v. Pidskalny (W.P.) (2012), 392 Sask.R. 231; 2012 SKQB 114, refd to. [para. 22].

R. v. J.G.B. (2001), 139 O.A.C. 341; 52 O.R.(3d) 257 (C.A.), refd to. [para. 23].

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, refd to. [para. 24].

R. v. Girimonte (F.) (1997), 105 O.A.C. 337; 121 C.C.C.(3d) 33; 37 O.R.(3d) 617 (C.A.), refd to. [para. 24].

Counsel:

Professor Glen E. Luther, Q.C., for Regent Nolet;

Mark Brayford, Q.C., for John Vatsis;

David K. Rusnak, for the Crown.

This application was heard before McMurtry, J., of the Saskatchewan Court of Queens' Bench, Judicial Centre of Yorkton, who released the following judgment on July 3, 2012.