R. v. Passley (S.), (2003) 175 Man.R.(2d) 50 (QB)

• Judge: Suche, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 16, 2003
• Jurisdiction: Manitoba
• Citations: (2003), 175 Man.R.(2d) 50 (QB);2003 MBQB 115

R. v. Passley (S.) (2003), 175 Man.R.(2d) 50 (QB)

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. JN.018

Her Majesty The Queen (respondent) v. Sherdon Passley (accused/applicant)

(CR 02-01-23191; 2003 MBQB 115)

Indexed As: R. v. Passley (S.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Suche, J.

May 16, 2003.

Summary:

The accused was charged with sexual assault and uttering threats. The accused brought a motion for a stay of proceedings on the basis that his s. 7 Charter right to make full answer and defence had been impaired due to the loss of evidence, specifically, a vehicle previously owned by the accused in which the offences were alleged to have occurred. The accused also brought a motion for permission to re-elect his mode of trial from judge alone to judge and jury.

The Manitoba Court of Queen's Bench dismissed the motions.

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 3133 ].

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 accused was charged with sexual assault and uttering threats - The accused moved for a stay of proceedings on the basis that his s. 7 Charter right to make full answer and defence had been impaired due to the loss of evidence, specifically, a vehicle previously owned by the accused in which the offences were alleged to have occurred - The Manitoba Court of Queen's Bench dismissed the motion - The vehicle was prima facie relevant evidence, the police were negligent in releasing the vehicle without sending it to the accused or someone on his behalf and the accused had established that his right to make full answer and defence was violated - However, the court was not satisfied that the results of an inspection of the vehicle could have any probative value to the facts in issue and the accused did not suffer any actual prejudice as a result of the loss of the vehicle - There was also no prejudice to the integrity of the judicial system - See paragraphs 28 to 41.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - [See Criminal Law - Topic 2854 ].

Criminal Law - Topic 2854

Jurisdiction - Consent jurisdiction - Elections and re-elections - Re-election by accused - Crown consent - The accused was charged with sexual assault and uttering threats - More than 14 days after the preliminary inquiry, the accused brought a motion for permission to re-elect his mode of trial from judge alone to judge and jury given the late disclosure of certain evidence - The Crown had refused to consent to the re-election - The Manitoba Court of Queen's Bench dismissed the motion - The late disclosure did not result in a material change in the case that the accused had to meet - There had to be a substantial reason to justify interference with a Crown discretion and the court saw no reason to do so - See paragraphs 42 to 48.

Cases Noticed:

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, consd. [para. 18].

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; [1992] 1 W.W.R. 97; 8 C.R.(4th) 277; 83 Alta. L.R.(2d) 193, refd to. [para. 19].

R. v. Bero (C.) (2000), 137 O.A.C. 136; 151 C.C.C.(3d) 545 (C.A.), refd to. [para. 25].

R. v. Desmond (1988), 88 N.S.R.(2d) 175; 225 A.P.R. 175; 46 C.C.C.(3d) 37 (T.D.), refd to. [para. 25].

R. v. Bowler (R.L.) (1998), 80 O.T.C. 181 (Gen. Div.), refd to. [para. 26].

R. v. Lupien (R.) (1995), 68 Q.A.C. 253; 10 M.V.R.(3d) 87 (C.A.), refd to. [para. 26].

R. v. Mills (J.D.) (2001), 149 B.C.A.C. 74; 244 W.A.C. 74 (C.A.), refd to. [para. 26].

R. v. Murray (S.H.) (1994), 75 O.A.C. 10 (C.A.), refd to. [para. 26].

R. v. Rochon (2002), 167 C.C.C.(3d) 257 (Que. C.A.), consd. [para. 27].

R. v. Ruston (1991), 71 Man.R.(2d) 49 (C.A.), consd. [para. 43].

R. v. L.E. et al. (1994), 75 O.A.C. 244; 94 C.C.C.(3d) 228 (C.A.), refd to. [para. 48].

Counsel:

Eugene Szach, for the respondent;

Barry Sinder and Don Mokriy, for the accused/applicant.

These motions were heard before Suche, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on May 16, 2003.