R. v. S.E.L., (2012) 537 A.R. 32 (QB)

• Judge: Hillier, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 23, 2012
• Citations: (2012), 537 A.R. 32 (QB);2012 ABQB 71

R. v. S.E.L. (2012), 537 A.R. 32 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.176

Her Majesty the Queen v. S.E.L. (090794306Q1; 2012 ABQB 71)

Indexed As: R. v. S.E.L.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Hillier, J.

January 30, 2012.

Summary:

The accused was charged with aggravated assault for allegedly causing injuries to his infant child. At trial, the accused called an expert witness to testify respecting the assessment of the injuries. During the Crown's cross-examination of the witness, the Crown referred to transcripts of prior trials in which the expert had testified to challenge the expert's impartiality and credibility. The transcripts had not been disclosed to the accused. The accused sought a stay of proceedings under s. 24(1) of the Charter on the ground that the non-disclosure breached his s. 7 Charter right to make full answer and defence and the delay in completing the trial violated his s. 11(b) right to be tried within a reasonable time. The Crown argued that the transcripts did not need to be disclosed and, in any event, the appropriate remedy would be an adjournment.

The Alberta Court of Queen's Bench held that the non-disclosure of the transcripts violated the accused's right to make full answer and defence. However, a stay of proceedings was unnecessary to remedy the prejudice to the accused. The appropriate remedy was to give the accused various options on how to proceed respecting his expert witness testimony (expunge the testimony, call another expert witness, thrown away costs, etc.). The accused's s. 11(b) right to be tried within a reasonable time was not violated.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Right of accused to make full answer and defence - [See Criminal Law - Topic 4505 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - [See Criminal Law - Topic 4505 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Criminal Law - Topic 4505 ].

Civil Rights - Topic 8380.21

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Discovery or production of evidence - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused was charged with the aggravated assault of his infant child - At trial, the accused called an expert witness to testify respecting the injuries - During cross-examination of the expert, the Crown referred to transcripts of prior trials in which the expert had testified to challenge the expert's impartiality and credibility - Those transcripts had not been disclosed - The trial was adjourned for submissions - The accused sought a stay of proceedings (Charter, s. 24(1)) on the ground that his s. 7 right to make full answer and defence was prejudiced by the late disclosure negating or reducing the effect of his expert's testimony - The accused also argued that the eight month delay caused by the late disclosure (resulting in a total of 32 months from charge to trial completion) violated his s. 11(b) right to be tried within a reasonable time - The Crown argued that the transcripts were privileged "work product" material that need not be disclosed and, in any event, a remedy short of a stay of proceedings would be appropriate - The Alberta Court of Queen's Bench held that the Crown breached its s. 7 Stinchcombe disclosure obligation, stating that "evidence that relates to the credibility and reliability of both Crown ... and defence expert witnesses ... is subject to Stinchcombe disclosure. ... an unfair trial can occur as a consequence of a failure to disclose a prior statement by an expert witness ... 'to impeach his credibility'" - There was a reasonable possibility that the information may have assisted the accused in making full answer and defence - The transcript was clearly not a privileged "work product", as "it does not represent 'ideas' or 'analysis' by the Crown" - However, a stay of proceedings was not needed to remedy the prejudice to the accused - The appropriate remedy was to give the accused options on how to proceed with expert testimony (expunge the testimony, call another expert witness, thrown away costs, etc.) - His s. 11(b) right to be tried within a reasonable time was not violated.

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. 9].

R. v. R.A.S., [1996] O.J. No. 4883 (Gen. Div.), refd to. [para. 10].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 11].

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. 17].

R. v. Basi (U.S.) et al., [2009] 3 S.C.R. 389; 395 N.R. 240; 277 B.C.A.C. 305; 469 W.A.C. 305; 2009 SCC 52, refd to. [para. 17].

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. 17].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 103 D.L.R.(4th) 678, refd to. [para. 20].

R. v. Stinchcombe, [1995] 1 S.C.R. 754; 178 N.R. 157; 162 A.R. 269; 83 W.A.C. 269; 130 D.L.R.(4th) 235, refd to. [para. 22].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 23].

R. v. Gardashnik (2011), 14 M.V.R.(6th) 299; 2011 ONCJ 256, refd to. [para. 24].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 142 D.L.R.(4th) 595, refd to. [para. 30].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81; 148 D.L.R.(4th) 608, refd to. [para. 30].

R. v. Card (B.A.) et al. (2002), 307 A.R. 277; 2002 ABQB 537, refd to. [para. 32].

R. v. Chan (A.H.) et al. (2002), 307 A.R. 232; 2002 ABQB 287, refd to. [para. 32].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 38].

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. 38].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 29 D.L.R.(4th) 161, refd to. [para. 40].

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; 130 D.L.R.(4th) 235, refd to. [para. 41].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 42].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81; 52 C.C.C.(3d) 97, refd to. [para. 43].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 74 D.L.R.(4th) 355, refd to. [para. 43].

R. v. Godin (M.), [2009] 2 S.C.R. 3; 389 N.R. 1; 252 O.A.C. 377, refd to. [para. 45].

R. v. Wood (D.W.) (2006), 397 A.R. 389; 384 W.A.C. 389; 2006 ABCA 343, refd to. [para. 57].

R. v. Mercer (D.A.) et al. (2002), 210 Nfld. & P.E.I.R. 46; 630 A.P.R. 46; 53 W.C.B.(2d) 101 (Nfld. T.D.), refd to. [para. 61].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 65].

R. v. Pang (B.L.) (1993), 139 A.R. 135 (Prov. Ct.), affd. (1994), 162 A.R. 24; 83 W.A.C. 24; 26 Alta. L.R.(3d) 317 (C.A.), refd to. [para. 65].

R. v. Taylor (T.E.) (2008), 261 N.S.R.(2d) 247; 835 A.P.R. 247; 2008 NSCA 5, refd to. [para. 65].

Counsel:

Mark Huyser-Wierenga (Crown Prosecutor's Office), for the Crown;

Kelly Dawson (Dawson Stevens Duckett and Shaigec), for the accused.

This application was heard on January 23, 2012, before Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 30, 2012.