R. v. Qureshi (I.A.) et al., (2008) 452 A.R. 278 (PC)

• Judge: Malin, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 20, 2008
• Citations: (2008), 452 A.R. 278 (PC);2008 ABPC 178

R. v. Qureshi (I.A.) (2008), 452 A.R. 278 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JL.095

Her Majesty the Queen v. Ifran Ahmed Qureshi, Adnan Ahmed Qureshi and Shafique Qureshi (051198018P1; 2008 ABPC 178)

Indexed As: R. v. Qureshi (I.A.) et al.

Alberta Provincial Court

Malin, P.C.J.

June 20, 2008.

Summary:

The accused were charged with numerous gun and drug offences. They argued, inter alia, that their right to a fair trial as protected by ss. 7 and 11(d) of the Charter was violated by police because they were prevented from communicating with their private investigator (Barros) for approximately two years. As a result, they sought a stay of proceedings.

The Alberta Provincial Court dismissed the application.

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 Criminal Law - Topic 128 ].

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 128 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Criminal Law - Topic 128 ].

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - The accused (Ifran Qureshi) was charged with numerous gun and drug offences - His counsel retained a private investigator (Barros), who was a retired police officer with extensive experience with drug cases, to assist as an expert in the investigation of the charges and to determine the identity of a confidential police informant used - Barros was charged with, inter alia, attempting to obstruct justice by taking investigative steps to identify a confidential police source for the purpose of interfering with criminal proceedings against the accused - He was released on conditions that, inter alia, he not be in contact with the accused or his counsel - The release conditions effectively ended Barros' investigative activities - The police also seized files and reports prepared by Barros which the accused alleged allowed the police to learn his defence strategy - Barros was eventually cleared of all charges - The accused argued, inter alia, that his right to a fair trial as protected by ss. 7 and 11(d) of the Charter was violated by police because his counsel was prevented from communicating with Barros for approximately two years - The Alberta Provincial Court held that the accused failed to prove the violation or material prejudice of his right to a fair trial based on a limitation of his right to make full answer and defence - There was no absolute right entitling an accused's counsel to retain an expert of choice - While there was an interruption of defence work for the accused, those interruptions were not, of themselves illegal and were the consequences of duly authorized seizures relating to charges brought against Barros - Their lawful character was not changed by virtue of the subsequent clearance of Barros respecting the charges - The revelation of the reports was at best, a minor prejudice of the accused's position - Further, the accused did not act diligently - When Barros became unavailable, it was then incumbent on the accused or his counsel to look elsewhere for investigative services - The accused apparently chose to do nothing which indicated that he either abandoned or was not diligent in pursuing his right to obtain and utilize other experts.

Cases Noticed:

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. 2].

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. 2].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 148 C.C.C.(3d) 97; 36 C.R.(5th) 223, refd to. [para. 29].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 29].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 29].

R. v. R.J.H. (2006), 405 A.R. 231; 212 C.C.C.(3d) 354; 2006 ABQB 656, refd to. [para. 30].

Alberta (Attorney General) v. R.J.H. - see R. v. R.J.H.

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

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571; 2000 ABCA 301, refd to. [para. 33].

R. v. Rath, [2003] A.J. No. 1659 (Q.B.), refd to. [para. 33].

R. v. Agarwal (S.K.) et al. (2007), 434 A.R. 170; 2007 ABQB 775, refd to. [para. 34].

R. v. Desjardins et al. (1991), 88 Nfld. & P.E.I.R. 149; 274 A.P.R. 149; 12 W.C.B.(2d) 119 (Nfld. T.D.), refd to. [para. 37].

R. v. Rizzuto - see R. v. Desjardins et al.

R. v. R.C.S. (2004), 227 N.S.R.(2d) 321; 720 A.P.R. 321; 2004 NSSC 232, dist. [para. 37].

R. v. DeCotiis, 2005 BCPC 224, dist. [para. 37].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 46].

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, refd to. [para. 46].

R. v. Dersch (W.W.) et al., [1990] 2 S.C.R. 1505; 116 N.R. 340; 43 O.A.C. 256; 36 Q.A.C. 258, refd to. [para. 46].

Dersch v. Canada (Attorney General) - see R. v. Dersch (W.W.).

R. v. McCallen (J.B.) (1999), 116 O.A.C. 308; 131 C.C.C.(3d) 518 (C.A.), refd to. [para. 47].

AgustaWestland International Ltd. v. Canada (Minister of Public Works and Government Services) et al. (2005), 272 F.T.R. 235; 2005 FC 655, refd to. [para. 49].

R. v. Van Binnendyk (D.) (2007), 227 O.A.C. 24; 2007 ONCA 537, refd to. [para. 53].

Counsel:

L.C. Tchir, for the respondent;

S.M. Tarrabain, Q.C., for the applicant, Irfan Qureshi;

W. Raponi, for the applicants, Adnan Ahmed Qureshi and Shafique Qureshi.

This application was heard by Malin, P.C.J., of the Alberta Provincial Court, who delivered the following decision on June 20, 2008.