R. v. Sorenson (G.A.) et al., (2014) 595 A.R. 181 (QB)

• Judge: Poelman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 30, 2014
• Citations: (2014), 595 A.R. 181 (QB);2014 ABQB 464

R. v. Sorenson (G.A.) (2014), 595 A.R. 181 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. OC.036

Her Majesty the Queen (Crown) v. Gary Allen Sorenson and Milowe Allen Brost (accused)

(120873872 Q2; 2014 ABQB 464)

Indexed As: R. v. Sorenson (G.A.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Poelman, J.

July 30, 2014.

Summary:

Brost and Sorenson were charged together with two counts of fraud exceeding $5,000 and two counts of theft exceeding $5,000. Brost was also charged with one count of money laundering. Four pretrial motions were brought.

The Alberta Court of Queen's Bench determined the motions accordingly.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right of accused to obtain information or evidence - Brost and Sorenson were charged together with two counts of fraud exceeding $5,000 and two counts of theft exceeding $5,000 - Brost was also charged with one count of money laundering - The Alberta Court of Queen's Bench rejected Sorenson's claim that the Crown had an obligation to more narrowly limit the range of documents that were disclosed, or to highlight for the defence which ones would be relied upon by the Crown - The court considered, inter alia, that the Crown's disclosure obligations were very broad in scope; it was not unreasonable for the Crown to produce all documents obtained during the course of the investigations against Sorenson and Brost - For it to have done otherwise would almost certainly have led to endless inquiries into what documents had been excluded from disclosure - Further, the Crown's obligation was to produce all documents which might possibly assist the accused's defence; it was not limited to documents which supported its theory of the case - See paragraphs 25 to 37.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Alberta Court of Queen's Bench stated that "... the court should decline to make rulings on whether a period of time between charge and trial gives rise to a Charter remedy (even with evidence of prejudice), in the absence of evidence enabling consideration of the factors required by Morin [1992 S.C.C.]. Otherwise, the court would retreat to the approach that prevailed after R v Askov, [1990] 2 S.C.R. 1199, where trial judges stayed charges on the basis that they violated the time frame believed to have been established by the Supreme Court." - See paragraph 53.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Brost and Sorenson were charged together with two counts of fraud exceeding $5,000 and two counts of theft exceeding $5,000 - Brost was also charged with one count of money laundering - Sorenson sought a stay of the charges against him on the ground that his right to be tried within a reasonable time had been infringed (Charter, s. 11(b)) - He submitted that five years from charges to trial was far too long, even in a complex case - The Alberta Court of Queen's Bench rejected the argument - The material submitted on the application comprised only Sorenson's affidavit setting out what he alleged was prejudice, and briefs of argument and authorities on behalf of Sorenson and the Crown - There was no further evidence, nor any materials showing the procedural history of the case, aside from the limited evidence adduced in the context of Sorenson's application for a stay based on inadequate Crown disclosure - The record before the court did not allow for a consideration of all factors relevant to determining whether the delay from charge to trial was unreasonable - There was no material addressing whether there was a waiver of time periods, or any of the reasons for delay required by R. v. Morin (1992 S.C.C.) to be specifically addressed: inherent time requirements of the case, actions of the accused, actions of the Crown and limits on institutional resources - While some factors might be more easily addressed by the Crown than by Sorenson and there might be points where the evidentiary burden shifted, that point had not been reached in this case - It would be contrary to authority to suggest that the mere length of time was sufficient to discharge Sorenson's onus - As to the other factors, at the very least Sorenson could have adduced evidence describing the case's procedural history, his knowledge of the reasons for delay, his participation in the proceedings and steps he took to expedite or delay the scheduling of trial - Such evidence might, depending on its content, require a response - See paragraphs 41 to 58.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Brost and Sorenson were charged together with two counts of fraud exceeding $5,000 and two counts of theft exceeding $5,000 - Brost was also charged with one count of money laundering - Sorenson sought a stay of the charges against him on the ground that his right to be tried within a reasonable time had been infringed (Charter, s. 11(b)) - He submitted that five years from charges to trial was far too long, even in a complex case - The Alberta Court of Queen's Bench rejected the argument - Sorenson relied primarily on evidence of prejudice - However, he had an onus of making his case on all the factors that had to be considered - Prejudice alone would not suffice when seeking a Charter remedy - In addition, Sorenson's case for prejudice caused by a period of unreasonable delay had not been established - Some prejudice might be inferred from the length of time - As to actual prejudice, it was important to distinguish prejudice caused by the nature of the charges from that caused by the delay in having them resolved at trial - The court was handicapped by not having evidence of the accused's role - See paragraphs 60 to 64.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See second and third Civil Rights - Topic 3265 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The accused sought a stay of proceedings on the basis of inadequate disclosure - The Alberta Court of Queen's Bench stated that "... the defence has put forward no evidence or even detailed particulars of how the Crown might have made earlier disclosure, in a comprehensive and usable fashion, in this very complex case; nor of any material deficiencies, in content, form or organization. Finally, and perhaps most importantly, the defence has put forward no evidence or particulars of prejudice to its right to make full answer and defence. The application is simply a general assertion that the Crown should have been able to disclose better and earlier. That is not adequate to meet the onus for any Charter relief, let alone the most drastic form of a stay." - See paragraphs 38 and 39.

Criminal Law - Topic 129

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

Criminal Law - Topic 4505

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

Criminal Law - Topic 5437

Evidence and witnesses - Cross-examination of accused - Prior charges, convictions, etc. - The Alberta Court of Queen's Bench stated that "... evidence of a criminal record is relevant to the issue of credibility, and presumptively is admissible in cross-examination of an accused pursuant to section 12 of the Canada Evidence Act. The Charter is not infringed by such a procedure. However, there is a discretion to exclude information about a criminal record on the basis that its prejudicial effect will exceed its probative value." - See paragraph 15.

Criminal Law - Topic 5437

Evidence and witnesses - Cross-examination of accused - Prior charges, convictions, etc. - Brost and Sorenson were charged together with two counts of fraud exceeding $5,000 and two counts of theft exceeding $5,000 - Brost was also charged with one count of money laundering - On May 6, 2011, Brost had been convicted of possession of property obtained by crime and uttering a forged document - Those convictions comprised his entire criminal record and arose from unlawful conduct involving cheques, banking and financial institutions - The Alberta Court of Queen's Bench declined to exercise its discretion to preclude reference to Brost's criminal record during cross-examination - The convictions were highly relevant to credibility - Brost's criminal record was very recent, and therefore on a temporal basis had a higher probative value - There was also a need to avoid presenting the jury with a distorted picture - Brost's recent convictions might increase the risk of propensity reasoning because they could be seen as conduct that was very similar to the offences charged against him in the indictment - However, given the important role assigned to juries, the court should tend in the direction of giving them all relevant information with careful instructions on limitations as to its use, and presume that they would discharge their functions honestly and in accordance with the trial judge's directions - See paragraphs 2 to 24.

Evidence - Topic 4407

Witnesses - Testimony - Video conferencing - Brost and Sorenson were charged together with two counts of fraud exceeding $5,000 and two counts of theft exceeding $5,000 - Brost was also charged with one count of money laundering - The Crown applied to have trial evidence of 10 witnesses received by video conference, pursuant to s. 714.2 of the Criminal Code - Sorenson opposed the application, expressing general concerns about the use of video technology for the calling of evidence which might be contentious - He was concerned about the possibility of off-screen coaching, off-screen intimidation, and the absence of contempt or perjury sanctions - No concerns relating to witnesses in this case specifically had been raised - The Alberta Court of Queen's Bench found that Sorenson's concerns went to the merits of the legislative policy underlying s. 714.2 - The court stated that "[t]hat policy decision has been made, quite properly, in another place and must be administered by this court." - Further, the court noted the Crown's submission (not contested) that all of the witnesses were important; some of them had already testified, by video link at the preliminary inquiry without incident; and nearly all had already agreed to testify by video link, and the process of seeking consent was underway for the remaining two witnesses - See paragraphs 66 to 71.

Cases Noticed:

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 10].

R. v. Lepine (V.) (2013), 566 A.R. 35; 597 W.A.C. 35; 2013 NWTCA 8, refd to. [para. 12].

R. v. Saroya (I.S.) (1994), 76 O.A.C. 25; 36 C.R.(4th) 253; 1994 CarswellOnt 122 (C.A.), refd to. [para. 12].

R. v. Falle (E.M.) (2008), 463 A.R. 65; 2008 ABQB 727, refd to. [para. 15].

R. v. Talbot (T.) (2007), 220 O.A.C. 167; 2007 ONCA 81, dist. [para. 20].

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. 31].

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. 31].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31 (C.A.), refd to. [para. 33].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, 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. 34].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 45].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 47].

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. 53].

R. v. Godin (M.), [2009] 2 S.C.R. 3; 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 54].

R. v. Yelle (J.) et al. (2006), 384 A.R. 331; 367 W.A.C. 331; 2006 ABCA 160, refd to. [para. 54].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-36, sect. 714.2 [para. 66].

Counsel:

Brian Holtby, Q.C., and Iwona Kuklicz, for the Crown;

Brian Purdy, Q.C., for Gary Allen Sorenson;

Shamsher Kothari and Corey Wilson, for Milowe Allen Brost.

These pretrial motions were heard on June 18-20, 2014, by Poelman, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decisions on July 30, 2014.