R. v. Stinchcombe, (1994) 149 A.R. 167 (CA)

• Judge: Fraser, C.J.A., Kerans and McFadyen, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 14, 1994
• Citations: (1994), 149 A.R. 167 (CA);1994 ABCA 113;149 AR 167;30 CR (4th) 119;88 CCC (3d) 557;63 WAC 167

R. v. Stinchcombe (1994), 149 A.R. 167 (CA);

         63 W.A.C. 167

MLB headnote and full text

Her Majesty The Queen (appellant) v. William B. Stinchcombe (respondent)

(Appeal No. 13744)

Indexed As: R. v. Stinchcombe

Alberta Court of Appeal

Fraser, C.J.A., Kerans and

McFadyen, JJ.A.

March 14, 1994.

Summary:

The accused was charged with 13 counts of criminal breach of trust, 13 counts of theft and one count of fraud, contrary to ss. 296, 294(a) and 338(1)(b) of the Criminal Code (1970). A witness who gave evidence at the preliminary inquiry favourable to the accused was interviewed by the Crown. The Crown decided against calling this witness and refused to produce statements given by the witness in the interview. The trial judge, in convicting the accused, refused to order production of the statements. The accused appealed.

The Alberta Court of Appeal, without written reasons, dismissed the appeal. The accused applied for and was granted leave to appeal to the Supreme Court of Canada on the issue of whether the statements should have been produced.

The Supreme Court of Canada, in a judg­ment reported 130 N.R. 277; 120 A.R. 161, allowed the appeal, ordered production of the statements and directed a new trial. Prior to the new trial, the Crown disclosed two transcripts of the taped interview and a photocopy of the handwritten statement. The Crown advised that the originals could not be located. The accused applied for a stay of proceedings, claiming that the Supreme Court of Canada required that he receive the original statement and recordings to facilitate his right to a fair hearing.

The Alberta Court of Queen's Bench granted a stay on the ground that full dis­closure had not been made as directed by the Supreme Court. The court stated that there were no means to authenticate the transcript of the taped statement and the witness was no longer available. The Crown appealed.

The Alberta Court of Appeal allowed the appeal, set aside the stay and ordered a new trial. The Supreme Court decision did not require production of original tapes and statements, just the information within; the absence of the originals did not impair the accused's right to make full answer and defence; the transcript could be authenticated without the original recording and there was no evidence that the witness was not avail­able.

Civil Rights - Topic 8374

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

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [ See Criminal Law - Topic 4505 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence before trial - The Supreme Court of Canada mandated that the Crown disclose all relevant information in its possession, whether inculpatory or exculpatory, and including statements of persons not pro­posed to be called as Crown witnesses - A witness was interviewed by the police, but not called - A tape recorded statement and handwritten statement were taken - The Crown produced a photocopy of the handwritten statement and two transcripts of the tape recorded interview - The orig­inals could not be found - The trial judge granted a stay of proceedings on the ground that disclosure required by the Supreme Court required disclosure of originals - The Alberta Court of Appeal set aside the stay - Disclosure did not necessarily require production of orig­inals; what was required was disclosure of the information in the originals - There was no evidence that the accused's right to make full answer and defence was impaired - The transcript could be authen­ticated without the original and there was no evidence that the witness was unavail­able.

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. 14].

R. v. M.H.C. (1988), 46 C.C.C.(3d) 142 (B.C.C.A.), refd to. [para. 15].

R. v. Leduc, [1993] 3 S.C.R. 641, refd to. [para. 20].

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. 21].

R. v. Holt (1991), 117 A.R. 218; 2 W.A.C. 218 (C.A.), refd to. [para. 22].

R. v. Koruz et al. (1992), 125 A.R. 161; 14 W.A.C. 161; 72 C.C.C.(3d) 353 (C.A.), refd to. [para. 23].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 24].

R. v. Chaplin (D.A.) et al. (1993), 145 A.R. 153; 55 W.A.C. 153 (C.A.), refd to. [para. 26].

Counsel:

P.W. Martin, Q.C., for the appellant;

R.G. Mitchell, for the respondent.

This appeal was heard on January 13, 1994, before Fraser, C.J.A., Kerans and McFadyen, JJ.A., of the Alberta Court of Appeal.

On March 14, 1994, the following memor­andum of judgment was delivered by the Court.