R. v. Paxton (D.W.), (2012) 531 A.R. 233 (QB)

• Judge: Martin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 22, 2011
• Citations: (2012), 531 A.R. 233 (QB);2012 ABQB 96

R. v. Paxton (D.W.) (2012), 531 A.R. 233 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. FE.100

Her Majesty the Queen (Crown/respondent) v. Dustin Ward Paxton (accused/applicant)

(110017514Q1; 2012 ABQB 96)

Indexed As: R. v. Paxton (D.W.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Martin, J.

February 10, 2012.

Summary:

The accused was charged with assault with a weapon, uttering threats, aggravated assault, unlawful confinement and sexual assault. The accused applied under s. 24(1) of the Charter for a stay of proceedings, arguing 35 violations of his s. 7 and 11(d) Charter rights. The more serious allegations were that "a police officer coached and directed the answers of a witness in court during cross-examination; there was a secret plea arrangement with, and/or the special treatment of, a Crown witness to secure that witness's testimony; the lead detective employed unreliable and improper investigative techniques; the Crown made inaccurate statements to the court; and the Crown failed to meet its disclosure obligations, including multiple allegations of wilful non-disclosure. The defence argues that certain impugned police and Crown conduct qualified independently as breaches of sufficient seriousness to warrant a stay of proceedings. The defence argues further that, cumulatively, the breaches, in combination with errors caused by inadvertence, show a pattern of Crown indifference to its obligation that threatens the integrity and fairness of the criminal trial process".

The Alberta Court of Queen's Bench dismissed the application. Almost all of the allegations were not proved. The court held that although there were some misunderstandings, some shortcomings and even a few errors, "for the most part, no Charter breach has been demonstrated". There was some Crown non-disclosure and late disclosure, but not sufficient to warrant exclusion of the evidence, let alone a stay of proceedings, where prejudice was not established. There was no abuse of the criminal justice process so egregious as to warrant a stay of proceedings. The court stated that the accused "has received a fair trial and the integrity of the justice system is not impugned by the manner in which this investigation or prosecution was conducted. Further, even if I was uncertain, the balance of public interests favours adjudication on the merits".

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 130 ].

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - The Alberta Court of Queen's Bench stated that "a fair trial is one that appears fair from both the perspective of the accused and the perspective of society at large. It is not a perfect trial nor is it the most advantageous trial possible from the accused's point of view" - See paragraph 33.

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - A police officer was sitting in the public gallery while a Crown witness was being cross-examined - Two other persons in the gallery drew to defence counsel's attention what they believed to be the officer making head and hand gestures to the witness (i.e., communicating with the witness) - The accused alleged that the officer was communicating with the witness, which prejudiced the accused's ss. 7 and 11(d) Charter right to a fair trial warranting a stay of proceedings - The officer testified that he was unaware of making any gestures and that he had no intent to coach the witness on how to answer defence counsel's questions - A court-ordered video of the gallery showed the officer frequently nodding his head and making hand gestures - However, the officer was also absent for 30 minutes of the cross-examination and at other times was seen with his head down doing work or accessing his Blackberry - Also, there were complex questions requiring more than a yes or no answer - Defence counsel conceded that he could not say for sure what the officer's intention was, whether he was actually signalling the witness or whether the witness was looking at the officer before answering questions - The Alberta Court of Queen's Bench stated that "while the distinctive movements of [the officer] were sufficient to draw the attention and even concern of some who saw them, I accept [the officer's] explanation and find that there was no attempt to communicate with or suggest answers to a witness. The [accused] has not met the burden of establishing attempted or actual communication with the witness." - The court discussed the appropriate procedure to be followed when someone came forward to counsel or the court with a concern that someone in the gallery was coaching a witness - See paragraphs 64 to 122.

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - A Crown witness had fled Alberta for Ontario before his trial on outstanding charges - He was a witness to alleged crimes by the accused, whom he allegedly feared - The witness, who could only be arrested in Alberta (not a Canada-wide warrant), voluntarily returned to testify - The accused was not arrested on the warrant - In the middle of the witness's cross-examination his charges were dealt with and he was fined (no imprisonment) - The accused argued that his ss. 7 and 11(d) Charter right to a fair trial was infringed, citing an alleged plea agreement in exchange for the witness returning to Alberta to testify, special treatment (outstanding charges dealt with quickly and accused not arrested on the outstanding warrant) and the Crown's attempt to cover up the matter by not disclosing to the accused that the witness was on warrant status - The Alberta Court of Queen's Bench rejected the accused's arguments - The court was satisfied that there was no plea agreement for a lesser sentence in exchange for his testimony, there was no special treatment and, assuming that the Crown had a duty to disclose that the witness was subject to a warrant, the failure of the Crown to so advise the accused resulted from inadvertence and caused no prejudice to the accused - The court stated that "while full disclosure would have been preferable, any non-disclosure was an oversight which produced no prejudice to [the accused's] Charter rights and does not amount to an abuse of process or otherwise implicate the integrity of the justice system" - In any event, the court noted that it "placed little or no weight on his testimony" in the trial proper - See paragraphs 55 to 225.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The Alberta Court of Queen's Bench referred to two categories of cases that attracted the ultimate Charter remedy, a stay of proceedings: "the first category implicates the fairness of an individual's trial resulting from state misconduct, for example, any of the various forms of breaches recognized under ss. 7 and 11(d). ... The second category is a residual category, unrelated to the fairness of the trial. It involves state conduct that contravenes fundamental notions of justice, thus undermining the integrity of the judicial process. ... If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwise damaging to the integrity of the judicial system, two criteria must be satisfied before a stay will be appropriate: (1) the prejudice caused by the abuse ... will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome. .. a stay is not generally intended to redress past wrong but rather aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future; and (2) no other remedy is reasonably capable of removing that prejudice ... Where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criteria that the court may consider. That is the balancing of the interest in granting a stay against society's interests in having a trial on the merits. ... When a stay is sought on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system. A stay of proceedings is therefore reserved for the clearest of cases in which the integrity of the justice system is implicated." - See paragraphs 41, 43, 45 to 48.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 130 ].

Criminal Law - Topic 130

Rights of accused - Preparation of defence - Duties of Crown and police - An accused complained that the Crown and/or police failed to adequately investigate by declining to re-interview one of the complainants when apparently "new" information surfaced - The Crown determined that the "new" information did not warrant a re-interview - The accused was free to pursue this "new" evidence - The Alberta Court of Queen's Bench, in rejecting the complaint, agreed that "an accused does not have a freestanding constitutional right to an adequate investigation of the charges against him or her ... An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target. ... Nor does the disclosure right, as broad as that right is, extend so far as to require the police to investigate potential defences. ... I see a vast difference between requiring the Crown to take reasonable steps to assist an accused in obtaining disclosure of relevant material in the possession of a third party, and requiring the Crown to conduct investigations that may assist the defence." - The court stated that "an overly broad interpretation of the right to make full answer and defence, that imposes an obligation on the Crown to investigate possible defences at the accused's behest, is irreconcilable with the basic tenets of the criminal justice system. .. the nature of the criminal process is inherently adversarial and the prosecution must be left to determine the parameters of an investigation if it is to properly perform its function in the public interest. While the accused has a constitutionally entrenched right to the product of that investigation, he or she does not have a right to determine the nature or scope of it." - See paragraphs 468 to 469.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Court of Queen's Bench stated that "(i) The Crown must disclose all material, inculpatory and exculpatory, in its possession or control that is not clearly irrelevant, irrespective of whether the Crown plans to introduce that material as evidence at trial ... (ii) Relevance for this purpose is where there is a reasonable possibility that the information will be useful to the accused in making full answer and defence to the charges against him ... In other words, information will be relevant if there is a reasonable possibility it can be used to: (a) meet the case for the Crown, (b) advance a defence, or (c) influence a decision on how the Defence should be conducted (e.g. whether or not to call evidence). (iii) The duty to disclose is triggered when the accused requests information from the Crown any time after the charge has been laid. Initial disclosure should occur before the accused is required to elect a mode of trial or enter a plea ... (iv) The Crown's duty to disclose is a continuing one and new disclosure must follow the receipt of additional information ... (v) While the Crown has some limited discretion over the timing of disclosure, the Crown may only refuse disclosure entirely if the material sought is either beyond the Crown's possession or control, privileged, or clearly irrelevant ... (vi) The Crown's discretion to delay the timing of disclosure should only be exercised in rare circumstances where doing so is required to protect the integrity of an ongoing investigation ... (vii) With respect to witnesses, all statements obtained from persons who have provided relevant information to the authorities should be produced whether or not a person is proposed as a Crown witness. Where witness statements do not exist, other information such as police notes should be produced. If there are no notes, then in addition to the name, address and occupation of each witness, the Crown should produce all information in its possession relating to any relevant evidence that each person could give ... (viii) While the Crown must disclose all information in its possession or control that is not clearly irrelevant or subject to privilege, it retains a residual discretion to act in a manner consistent with protecting a witness's security interests. This discretion is subject to review by the trial judge and cannot be exercised in a manner that impairs the accused's right to make full answer and defence" - See paragraph 288.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Court of Queen's Bench stated that "Defence counsel, as officers of the court with a duty to promote a fair and efficient criminal justice system, have an obligation to diligently pursue disclosure. Counsel must not remain passive, but rather actively seek and pursue disclosure when it becomes aware (or ought to be aware) of a failure to disclose further material based on other relevant material already produced by the Crown ... (x) To diligently pursue disclosure means defence counsel must, at its earliest opportunity, bring to the Court's attention any failure of the Crown to comply with its duty of disclosure. This rule allows the trial judge to remedy any prejudice to the accused, if possible, and avoid a new trial ... (xi) If defence counsel knew, or ought to have known, on the basis of other disclosure that the Crown inadvertently failed to disclose certain information, yet defence counsel remained passive as a result of either a tactical decision or a lack of due diligence in pursuing the undisclosed information, it would be difficult for a court to accept that the non-disclosure affected the fairness of the trial" - See paragraph 288.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Court of Queen's Bench stated that "before a court will grant a remedy for non-disclosure, the accused must demonstrate that he suffered deleterious consequences as a result. ... a breach of the accused's right to disclosure does not automatically impair the accused's right to make full answer and defence. ... First, the accused must first prove, on a balance of probabilities, that his right to disclosure was violated. Second, in order to justify a remedy, the accused must prove actual prejudice was suffered on account of not having the undisclosed information. ... an accused will successfully discharge his burden where he can demonstrate a reasonable possibility that the non-disclosure could have affected either the outcome or fairness of the trial. ... the reasonably possible uses of the information at issue cannot be purely speculative." - The court stated that undisclosed relevant information, which was only marginally valuable to the ultimate issues at trial, did not warrant a significant remedy (new trial, stay of proceedings) "where the accused could not show prejudice to either the reliability of the outcome or the fairness of the trial process" - See paragraphs 290, 291, 293.

Evidence - Topic 4238.1

Witnesses - Privilege - Lawyer-client communications - Documents - Lawyer's work product - [See Evidence - Topic 4242.1 ].

Evidence - Topic 4242.1

Witnesses - Privilege - Lawyer-client communications - Privilege - Communications between Crown prosecutors and investigators - The Alberta Court of Queen's Bench stated that "case law had recognized that time lines created by the Crown for its own purposes may attract work product privilege. ... However, that privilege is lost when a document is given to an expert to be called by the crown. At that point the work product ought to have been disclosed to the defence" - See paragraphs 340 to 351.

Cases Noticed:

R. v. Dias (G.) (2011), 502 A.R. 156; 517 W.A.C. 156; 265 C.C.C.(3d) 34; 2010 ABCA 382; 2011 ABCA 6, refd to. [para. 15].

R. v. Leduc (J.) (2003), 174 O.A.C. 242; 176 C.C.C.(3d) 321 (C.A.), refd to. [para. 15].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 15].

R. v. Ward (M.E.) (2007), 434 A.R. 378; 2007 ABQB 344, refd to. [para. 24].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, refd to. [para. 30].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417, refd to. [para. 30].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 23 C.C.C.(3d) 289, refd to. [para. 31].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 101 C.C.C.(3d) 193, refd to. [para. 32].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [para. 33].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201; 129 C.C.C.(3d) 449, refd to. [para. 34].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201; 139 C.C.C.(3d) 321, refd to. [para. 37].

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; 103 C.C.C.(3d) 1, refd to. [para. 38].

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. 40].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 40].

R. v. Antinello (J.J.) (1995), 165 A.R. 122; 89 W.A.C. 122; 97 C.C.C.(3d) 126 (C.A.), refd to. [para. 48].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1; 113 C.C.C.(3d) 481 refd to. [para. 48].

R. v. Spence (L.A.) et al., [2011] O.T.C. Uned. 2406; 95 C.R.(6th) 72; 2011 ONSC 2406, refd to. [para. 48].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 48].

R. v. R.P.S. (2011), 503 A.R. 233; 2010 ABQB 418, refd to. [para. 48].

R. v. Robinson (C.J.) (1999), 250 A.R. 201; 213 W.A.C. 201; 1999 ABCA 367, refd to. [para. 48].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 112 C.C.C.(3d) 193, refd to. [para. 48].

R. v. Gangl (D.A.) (2011), 515 A.R. 337; 532 W.A.C. 337; 2011 ABCA 357, refd to. [para. 48].

R. v. Boucher, [1955] S.C.R. 16; 110 C.C.C. 263, refd to. [para. 50].

R. v. Davidson (B.W.) (2004), 357 A.R. 353; 334 W.A.C. 353; 2004 ABCA 337, refd to. [para. 127].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al. (2007), 368 N.R. 1; 230 O.A.C. 260; 50 C.R.(6th) 279; 2007 SCC 41, refd to. [para. 232].

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. 288].

R. v. Stinchcombe, [1995] 1 S.C.R. 754; 178 N.R. 157; 162 A.R. 269; 83 W.A.C. 269, refd to. [para. 288].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 288].

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. 288].

R. v. McAnespie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185, refd to. [para. 289].

R. v. Robinson (1994), 155 A.R. 70; 73 W.A.C. 70 (C.A.), refd to. [para. 289].

R. v. Robinson, [1996] A.J. No. 749 (Q.B.), refd to. [para. 289].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 292].

R. v. Bernardo, [1994] O.J. No. 1718 (Gen. Div.), refd to. [para. 300].

R. v. Roberts, [2001] A.J. No. 722, refd to. [para. 300].

R. v. Hainnu, [1997] N.W.T.J. No. 76, refd to. [para. 300].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 303].

R. v. Mah (J.) (2001), 288 A.R. 249; 2001 ABQB 322, refd to. [para. 350].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 387].

R. v. Darwish (W.H.) (2010), 258 O.A.C. 272; 252 C.C.C.(3d) 1; 2010 ONCA 124, leave to appeal denied (2010), 410 N.R. 399; 258 C.C.C.(3d) iv (S.C.C.), refd to. [para. 467].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 481].

R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 486].

R. v. Zarinchang (D.) (2010), 261 O.A.C. 153; 2010 ONCA 286, refd to. [para. 492].

Authors and Works Noticed:

Frater, Robert J., Prosecutorial Misconduct (2009), generally [para. 43].

Counsel:

Lloyd W. Robertson, Q.C., and Gary H. Cornfield, Q.C., for the Crown/respondent;

Michael G. Bates, for the accused/applicant.

This application was heard from November 30 to December 22, 2011, before Martin, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on February 10, 2012.