R. v. Proctor (S.V.), (2015) 605 A.R. 169 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 12, 2014
• Citations: (2015), 605 A.R. 169 (QB);2015 ABQB 97

R. v. Proctor (S.V.) (2015), 605 A.R. 169 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.028

Her Majesty the Queen v. Shane Vere Proctor (130324460S1; 2015 ABQB 97)

Indexed As: R. v. Proctor (S.V.)

Alberta Court of Queen's Bench

Judicial District of Peace River

Graesser, J.

February 6, 2015.

Summary:

The accused was convicted of driving a motor vehicle while having a blood-alcohol level exceeding the legal limit. The trial judge, in that decision, held that he was bound by a 2013 Court of Queen's Bench decision (R. v. Kilpatrick (D.K.)) that the breathalyzer maintenance logs were subject to first party disclosure by the Crown. Disclosure had been requested but not provided by the Crown. The Crown breached its disclosure obligations, breaching the accused's s. 7 Charter right to make full answer and defence. However, the Crown was given time to produce the logs. When the Crown advised that it could not produce the logs as they did not exist, the trial judge declined to exclude the breathalyzer certificate evidence or grant a stay of proceedings. The accused appealed.

The Alberta Court of Queen's Bench allowed the appeal and quashed the conviction and stayed the charge. A stay or exclusion of the evidence were the only effective remedies that the trial judge could have ordered for the Crown's deliberate breach of the accused's s. 7 Charter rights. The Crown and R.C.M.P. disagreed with the Kilpatrick decision, repeatedly failed to comply with it, and routinely argued before Provincial Court judges to not follow binding precedent because they believed it to be wrongly decided.

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 1384.4 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Criminal Law - Topic 1384.4 ].

Courts - Topic 5

Stare decisis - Authority of judicial decisions - General principles - Authority and use of precedents - General - The Alberta Court of Queen's Bench stated that "Lower courts are bound by the decisions of higher courts in the same jurisdiction, and of the Supreme Court of Canada, no matter how wrong the lower court believes the decision to be. Lower courts have the right to properly distinguish otherwise binding cases, but it is not open to a lower court to refuse to follow a higher court's decision on the basis that the lower court believes the higher court's decision to be wrongly decided. When the higher court's decision is the last word on a particular subject, such as Kilpatrick in Alberta, Provincial Court is bound to follow the decision. Arguing in Provincial Court that a Queen's Bench decision should not be followed because it was wrongly decided is not a legitimate argument." - See paragraphs 96 to 97.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See Criminal Law - Topic 1384.4 ].

Criminal Law - Topic 1384.4

Offences against person and reputation - Motor vehicles - Impaired driving - Production of breathalyzer maintenance records or data - The accused was convicted of driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - The Crown had taken the position at trial that it had no duty to disclose breathalyzer maintenance logs, as this was third party disclosure that required an O'Connor application - The trial judge ruled that he was bound by a 2013 Court of Queen's Bench decision (R. v. Kilpatrick (D.K.)) that the breathalyzer maintenance logs, where obviously relevant, were subject to first party disclosure by the Crown - Disclosure had been requested, but the Crown routinely refused to disclose the logs because it believed that Kilpatrick was wrongly decided - The Crown's breach of its disclosure obligations infringed the accused's s. 7 Charter right to make full answer and defence - However, the Crown was given time to produce the logs - When the Crown advised that it could not produce the logs as they did not exist, the trial judge declined to exclude the breathalyzer certificate evidence or grant a stay of proceedings - The Alberta Court of Queen's Bench allowed the accused's appeal, quashed the conviction, and ordered a stay of proceedings - A stay or exclusion of the evidence were the only effective remedies that the trial judge could have ordered for the Crown's deliberate breach of the accused's s. 7 Charter rights - The Crown and R.C.M.P. disagreed with the Kilpatrick decision, repeatedly and deliberately failed to comply with it, and routinely argued before Provincial Court judges to not follow binding precedent because they believed it to be wrongly decided - The Crown and R.C.M.P. jeopardized the administration of justice by unjustified and deliberate actions that prejudiced the accused.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Criminal Law - Topic 1384.4 ].

Criminal Law - Topic 5371

Evidence and witnesses - Documents and reports - Documents in possession of Crown - [See Criminal Law - Topic 1384.4 ].

Police - Topic 2212

Duties - General duties - Disclosure of information - [See Criminal Law - Topic 1384.4 ].

Cases Noticed:

R. v. Kilpatrick (D.K.) (2013), 555 A.R. 110; 2013 ABQB 5, leave to appeal denied [2013] A.R. Uned. 160; 2013 ABCA 168, refd to. [paras. 1, 2].

R. v. Sutton (T.A.) (2013), 576 A.R. 14; 2013 ABPC 308, refd to. [para. 2].

R. v. Auger (A.A.) (2013), 566 A.R. 74; 597 W.A.C. 74; 2013 ABCA 411, refd to. [para. 33].

R. v. St-Onge Lamoureux (A.) (2012), 436 N.R. 199; 2012 SCC 57, refd to. [para. 33].

R. v. Dineley (S.) (2012), 436 N.R. 59; 297 O.A.C. 50; 2012 SCC 58, refd to. [para. 33].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al. (2003), 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 33].

R. v. 974649 Ontario Inc. et al. (2001), 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 33].

R. v. Bjelland (J.C.) (2009), 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 33].

R. v. Darville, [1956] S.C.J. No. 82, refd to. [para. 33].

R. v. Gubbins (K.P.) (2014), 596 A.R. 351; 2014 ABPC 195, refd to. [para. 33].

R. v. Worden (S.) (2014), 452 Sask.R. 1; 2014 SKPC 143, refd to. [para. 33].

R. v. Ahmed, 2010 ONCJ 130, refd to. [para. 33].

R. v. Batenchuk, 2010 ONCJ 192, refd to. [para. 33].

R. v. Bensette, 2011 ONCJ 30, refd to. [para. 33].

R. v. Black (W.J.) (2011), 515 A.R. 319; 532 W.A.C. 319; 2011 ABCA 349, refd to. [para. 33].

R. v. Carriveau, 2011 ONCJ 837, refd to. [para. 33].

R. v. Horan (K.) (2008), 240 O.A.C. 313; 237 C.C.C.(3d) 514; 2008 ONCA 589, refd to. [para. 33].

R. v. Lalic, 2010 ONCJ 564, refd to. [para. 33].

R. v. Lam, 2014 ONCJ 247, refd to. [para. 33].

R. v. Lenti, 2010 ONCJ 554, refd to. [para. 33].

R. v. MacDougall (P.A.), [1998] 3 S.C.R. 45; 231 N.R. 147; 168 Nfld. & P.E.I.R. 83; 517 A.P.R. 8, refd to. [para. 33].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154, refd to. [para. 33].

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, refd to. [para. 33].

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. 33].

R. v. Scurr (J.L.) et al. (2008), 441 A.R. 203; 2008 ABQB 127, refd to. [para. 42].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 94].

R. v. Arcand - see R. v. J.L.M.A.

Carter et al. v. Canada (Attorney General) et al. (2015), 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 95].

South Side Woodwork (1979) Ltd. v. R.C. Contracting Ltd. et al. (1989), 95 A.R. 161 (Q.B. Master), refd to. [para. 100].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 129].

Counsel:

David J. Sherwin (Alberta Justice), for the Crown;

Timothy E. Foster (Foster Iovinelli Beyak), for the accused.

This appeal was heard on December 12, 2014, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Peace River, who delivered the following judgment on February 6, 2015.