R. v. Peekeekoot (O.J.), 2002 ABPC 23

• Judge: Lefever, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 07, 2002
• Citations: 2002 ABPC 23;(2002), 311 A.R. 95 (PC)

R. v. Peekeekoot (O.J.) (2002), 311 A.R. 95 (PC)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. FE.110

Her Majesty the Queen v. Oliver James Peekeekoot

(016634404P10101-04; 2002 ABPC 23)

Indexed As: R. v. Peekeekoot (O.J.)

Alberta Provincial Court

Lefever, P.C.J.

February 7, 2002.

Summary:

The accused was charged with aggravated assault, break and enter with intent, possession of a weapon for a dangerous purpose and assault. He applied for a judicial stay, arguing that his ss. 7 and 11(d) Charter rights were violated.

The Alberta Provincial Court held that the accused's s. 7 and 11(d) rights were breached. The court refused to grant a judicial stay. The court ordered an expedited trial and costs to the accused.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Right of accused to make full answer and defence - The accused was charged with four offences - The trial was scheduled for May 8, 2002 - Despite defence counsel's repeated requests, including specific requests, the Crown made late disclosure - The accused was in remand throughout - The Alberta Provincial Court held that the accused's right to make full answer and defence (Charter, ss. 7 and 11(d)) was breached by the Crown's failure to make timely or complete disclosure until the application hearing day (January 28, 2002) - However, the court refused to grant a stay - The court held that it could not grant release pending trial as a Charter remedy because of statutory restrictions - The court ordered an earlier trial date - Further, it ordered $2,500 costs to the accused, noting that the "flagrant and unjustified" non-disclosure resulted in the original trial date being lost and the accused remaining in remand longer - But for the fact that the accused made no applications to deal with disclosure before the aborted original trial date, costs would have been substantially higher.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - An accused applied for a judicial stay, alleging that his ss. 7 and 11(d) Charter rights were breached - The Crown argued that only the trial judge could grant a stay and only at trial - The Alberta Provincial Court seized itself with the trial and, therefore, it was unnecessary to determine whether the application could only be brought before the trial judge - However, the court stated that it disagreed with the Crown's argument - Further, the court held that there was no requirement that the application had to be brought at trial - See paragraphs 11 to 17.

Civil Rights - Topic 8374

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

Civil Rights - Topic 8380.3

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

Civil Rights - Topic 8380.7

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

Civil Rights - Topic 8380.29

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

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See first Civil Rights - Topic 8374 ].

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - [See first Civil Rights - Topic 8374 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Provincial Court stated that "I take from [R. v. Stinchcombe (S.C.C.) and R. v. Siemens (Alta. C.A.)] that the Crown: a. has a general duty to the accused and the Court to disclose all relevant evidence in the possession of the Crown at the time disclosure is made; b. is not required to review in extenso the material gathered from state authorities including the police in order to catalogue or list evidence included within the disclosure package; c. has a discretion to withhold disclosure of the clearly irrelevant; d. is not required to go out and interview police witnesses and include the information so obtained in disclosure; and e. the performance of this general duty must be reviewed within concrete factual contexts ..." - See paragraph 25.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Provincial Court stated that "Disclosure that occurs before the accused is required to plead and elect a mode of trial is not the only time that Crown disclosure has an interface with the fairness of an accused's trial. The fairness of an accused's trial is live throughout the entirety of the trial process from accusation to acquittal or conviction. ... Crown counsel must consciously review any request for disclosure against the duty imposed by [R. v. Stinchcombe (S.C.C.)] and take such reasonable steps as are required to deal with the disclosure request. What is a reasonable step remains in all the circumstances contextual and driven by the nature of the request, the disclosure that has already been provided, and on occasion the time within the proceeding at which the request has been advanced." - See paragraphs 31 to 35.

Criminal Law - Topic 4505

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

Criminal Law - Topic 4591

Procedure - Costs - Against the Crown - [See Civil Rights - Topic 3133 ].

Practice - Topic 7351

Costs - Costs in criminal proceedings - Payable by Crown - Charter violations - [See Civil Rights - Topic 3133 ].

Cases Noticed:

R. v. Biscette (S.) (1995), 169 A.R. 81; 97 W.A.C. 81; 99 C.C.C.(3d) 326 (C.A.), affd. [1996] 3 S.C.R. 599; 203 N.R. 392; 187 A.R. 392; 127 W.A.C. 244; 110 C.C.C.(3d) 285, refd to. [para. 14].

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, folld. [para. 21].

R. v. Siemens (F.) (1998), 209 A.R. 375; 160 W.A.C. 375; 122 C.C.C.(3d) 552 (C.A.), consd. [para. 24].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63; 63 C.C.C.(3d) 385, refd to. [para. 26].

R. v. Caccamo, [1976] 1 S.C.R. 786; 4 N.R. 133; 21 C.C.C.(2d) 257, refd to. [para. 26].

R. v. O'Grady (G.L.) (1995), 64 B.C.A.C. 111; 105 W.A.C. 111 (C.A.), refd to. [para. 27].

R. v. Jack (B.G.) (1992), 76 Man.R.(2d) 168; 10 W.A.C. 168; 70 C.C.C.(3d) 67 (C.A.), refd to. [para. 27].

R. v. Greganti (S.), [2000] O.T.C. 30; 142 C.C.C.(3d) 31 (Sup. Ct.), refd to. [para. 28].

R. v. L.A.T. (1993), 64 O.A.C. 380; 14 O.R.(3d) 378 (C.A.), refd to. [para. 29].

R. v. Swietlinski - see Swietlinski v. Ontario (Attorney General).

Swietlinski v. Ontario (Attorney General), [1994] 3 S.C.R. 481; 172 N.R. 321; 75 O.A.C. 161, refd to. [para. 38].

R. v. Rourke, [1978] 1 S.C.R. 1021; 16 N.R. 181; 35 C.C.C.(2d) 129, refd to. [para. 39].

R. v. Orysiuk (1977), 6 A.R. 548; 37 C.C.C.(2d) 445 (C.A.), refd to. [para. 39].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; 21 C.C.C.(3d) 7, refd to. [para. 39].

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. 41].

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, folld. [para. 41].

R. v. 974649 Ontario Inc. et al. (2001), 279 N.R. 345; 154 O.A.C. 345 (S.C.C.), consd. [para. 46].

R. v. J.S.H. (1993), 141 A.R. 344; 46 W.A.C. 344; 83 C.C.C.(3d) 572 (C.A.), refd to. [para. 50].

Authors and Works Noticed:

Morgan, Donna C., Controlling Prosecutorial Powers - Judicial Review, Abuse of Process and Section 7 of the Charter (1986), 29 Crim. L.Q. 15, pp. 20, 21 [para. 38].

Counsel:

T. Couillard, for the Crown;

T. Stonhouse, for the accused.

This application was heard by Lefever, P.C.J., of the Alberta Provincial Court, who delivered the following decision at Edmonton, Alberta, on February 7, 2002.