R. v. Payton (E.M.), 2003 ABPC 194

• Judge: Malin, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: September 12, 2003
• Citations: 2003 ABPC 194;(2003), 347 A.R. 35 (PC)

R. v. Payton (E.M.) (2003), 347 A.R. 35 (PC)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. DE.053

Her Majesty the Queen v. Elfrid Melvin Payton

(021366786P101001; 2003 ABPC 194)

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

Alberta Provincial Court

Malin, P.C.J.

November 18, 2003.

Summary:

The unrepresented accused was convicted of assault causing bodily harm. A date was set for sentencing submissions. The accused appeared with counsel and applied for a mistrial pursuant to s. 24 of the Charter on the grounds that he was not advised of his right to receive disclosure and never received any disclosure. The Crown argued that Promise to Appear and Undertaking forms which had been given to the accused contained notices of his right to disclosure and that the accused's conduct by not requesting disclosure constituted a waiver.

The Alberta Provincial Court found that there had been a violation of the accused's s. 7 Charter right to a fair trial. The court declared a mistrial and ordered a new trial.

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 - The Alberta Provincial Court stated that "the right of disclosure is considered an independent right, protected by s. 7 of the Charter. The proof of infringement, or impairment of this right is dependant on the remedy sought by the applicant ... In the case of a new trial (on appeal), or a mistrial (in the midst of trial), the accused is not required to show that his or her right to make a full answer and defence has been impaired, rather only that 'he or she has met the Stinchcombe threshold'" - See paragraph 44.

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 - The unrepresented accused was convicted of assault causing bodily harm - A date was set for sentencing submissions - The accused appeared with counsel and applied for a mistrial pursuant to s. 24 of the Charter on the grounds that he was not advised of his right to receive disclosure and never received any disclosure - The Crown argued that Promise to Appear and Undertaking forms which had been given to the accused contained notices of his right to disclosure and that the accused's conduct by not requesting disclosure constituted a waiver - The Alberta Provincial Court held that; (1) the Crown had a duty to advise an unrepresented accused, directly, of his right to disclosure, prior to the accused entering a plea; (2) the written notices on the Promise to Appear and Undertaking constituted advice by way of actual notice; (3) the accused could not be held to waive his right to disclosure without evidence of an express and informed waiver; (4) the failure of the court to confirm whether the accused was aware of his rights to disclosure, and whether he was content to proceed to trial without receiving disclosure, resulted in an infringement of his s. 7 Charter right to a fair trial - The court declared a mistrial and ordered a new trial.

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 - The unrepresented accused was convicted of assault causing bodily harm - A date was set for sentencing submissions - The accused appeared with counsel and applied for a mistrial pursuant to s. 24 of the Charter on the grounds that he was not advised of his right to receive disclosure and never received any disclosure - The Crown argued that the accused's conduct by not requesting disclosure constituted a waiver - The accused's counsel argued that the court should consider the accused's unique circumstances, which included that he was a member of the Edmonton Eskimos football team, that his docket court appearance was two days before he was to play in the 2002 Grey Cup game, that he was an American citizen who only lived in Canada during the football season and that he was unfamiliar with the Canadian judicial system - The Alberta Provincial Court stated that the accused's unique circumstances did not give him greater rights than any other person and had no bearing on the application - See paragraphs 28 to 33.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See second Civil Rights - Topic 3128 ].

Civil Rights - Topic 8309

Canadian Charter of Rights and Freedoms - Waiver of rights - [See second Civil Rights - Topic 3128 ].

Civil Rights - Topic 8380.20

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - New trial or mistrial - [See second Civil Rights - Topic 3128 ].

Criminal Law - Topic 129

Rights of accused - Right to discovery or production - [See second Civil Rights - Topic 3128 ].

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - [See second Civil Rights - Topic 3128 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See second Civil Rights - Topic 3128 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Provincial Court rejected an assertion that in the case of an unrepresented accused the Crown had to tender a full disclosure package whether requested or not - The court stated that the duty of the Crown was to advise an accused of his right to disclosure and the duty of the docket or trial judge was to determine whether such advice had been given - Depending on the answers to that enquiry, the docket court judge or trial judge would want to determine whether the accused had waived the right to disclosure or received the disclosure he had requested - See paragraphs 47 to 51.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - [See second Civil Rights - Topic 3128 ].

Cases Noticed:

R. v. Vescio, [1949] S.C.R. 139; [1949] 1 D.L.R. 720; 92 C.C.C. 161, refd to. [para. 7].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 12].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345, refd to. [para. 12].

R. v. Buchholz (1977), 32 C.C.C.(2d) 331 (Ont. C.A.), refd to. [para. 12].

R. v. Stewart (1977), 36 C.C.C.(2d) 5 (Ont. C.A.), refd to. [para. 12].

R. v. Jassman (1975), 27 C.C.C.(2d) 271 (B.C.S.C.), refd to. [para. 12].

R. v. T.C.D. - see R. v. Dobson.

R. v. Dobson (1987), 22 O.A.C. 119; 38 C.C.C.(3d) 434 (C.A.), refd to. [para. 12].

R. v. Conley (1979), 17 A.R. 447; 47 C.C.C.(2d) 359 (C.A.), refd to. [para. 14].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 15].

R. v. Lenny (R.D.) et al. (1994), 155 A.R. 225; 73 W.A.C. 225 (C.A.), dist. [para. 19].

R. v. Bhaye (A.) (1994), 159 A.R. 230 (Prov. Ct.), dist. [para. 19].

R. v. W. (1994), 75 O.A.C. 130 (C.A.), refd to. [para. 19].

R. v. Nguyen (T.T.) et al. (2001), 294 A.R. 201 (Prov. Ct.), dist. [para. 19].

R. v. Forster, [1992] 1 S.C.R. 339; 133 N.R. 333; 70 C.C.C.(3d) 59, refd to. [para. 32].

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, refd to. [para. 34].

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; 96 C.C.C.(3d) 225, refd to. [para. 34].

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; 44 C.R.(4th) 1, refd to. [para. 34].

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.), folld. [para. 39].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 A.R. 81; 116 C.C.C.(3d) 97; 148 D.L.R.(4th) 608, folld. [para. 39].

R. v. Grimes (D.W.) (1998), 209 A.R. 360; 160 W.A.C. 360; 59 Alta. L.R.(3d) 210; 122 C.C.C.(3d) 331 (C.A.), refd to. [para. 40].

R. v. Robinson; R. v. Dolejs (1990), 100 A.R. 26; 51 C.C.C.(3d) 452 (C.A.), refd to. [para. 63].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 66].

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 130 C.C.C.(3d) 167; [1999] 7 W.W.R. 652 (C.A.), leave to appeal refused (1998), 239 N.R. 197; 250 A.R. 192; 213 W.A.C. 192; 61 C.R.R.(2d) 375 (S.C.C.), refd to. [para. 68].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609; 49 C.C.L.T. 217, refd to. [para. 74].

Dyck v. Manitoba Snowmobile Association Inc. and Wood, [1985] 1 S.C.R. 589; 58 N.R. 144; 35 Man.R.(2d) 22, refd to. [para. 88].

Canadian Imperial Bank of Commerce v. Foreman, [1927] 1 W.W.R. 783; 22 Alta. L.R. 443 (C.A.), reving. [1926] 3 W.W.R. 486, refd to. [para. 88].

Gray-Campbell Ltd. v. Flynn, [1922] 3 W.W.R. 1029; 18 Alta. L.R. 547 (C.A.), refd to. [para. 88].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 77 C.R.(3d) 145; 57 C.C.C.(3d) 1, refd to. [para. 100].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233; 63 C.C.C.(3d) 313, refd to. [para. 101].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 102].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353; 33 C.R.(4th) 85, refd to. [para. 102].

Crump v. McNeil, [1919] 1 W.W.R. 52; 14 Alta. L.R. 206 (C.A.), refd to. [para. 103].

R. v. Sivasubramania, [2002] O.J. No. 195 (C.J.), refd to. [para. 104].

R. v. Tran (V.P.) (2001), 149 O.A.C. 120; 55 O.R.(3d) 161 (C.A.), refd to. [para. 110].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1, refd to. [para. 114].

R. v. J.T.G. (1999), 41 W.C.B.(2d) 357 (Ont. Gen. Div.), refd to. [para. 115].

R. v. Fineline Circuits Ltd., [1991] O.J. No. 3463 (Prov. Div.), refd to. [para. 115].

R. v. L.A.T. (1993), 64 O.A.C. 380; 84 C.C.C.(3d) 90 (C.A.), refd to. [para. 115].

R. v. St. Pierre, [1999] J.Q. No. 3027 (Sup. Ct.), refd to. [para. 115].

R. v. Rochon (L.-P.) (2002), 167 C.C.C.(3d) 257 (Que. C.A.), leave to appeal refused, [2003] C.S.C.R. No. 287; 307 N.R. 196, refd to. [para. 115].

R. v. Carrie, [1993] O.J. No. 3329 (Gen. Div.), refd to. [para. 117].

R. v. Attfield (G.D.) (2000), 283 A.R. 94; 2000 ABQB 694, refd to. [para. 120].

R. v. Pretty (1982), 34 A.R. 313; 66 C.C.C.(2d) 43 (C.A.), refd to. [para. 122].

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; 5 C.R.(5th) 291; 113 C.C.C.(3d) 481, refd to. [para. 122].

R. v. Leduc, [1993] 3 S.C.R. 641, refd to. [para. 123].

Counsel:

J. Watson, for the Crown;

R.H. Davidson, Q.C., for the accused.

This application was heard on September 12, 2003, before Malin, P.C.J., of the Alberta Provincial Court, who delivered the following decision on November 18, 2003.