R. v. Taillefer (B.), (2003) 313 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 12, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 313 N.R. 1 (SCC);2003 SCC 70;233 DLR (4th) 227;179 CCC (3d) 353;17 CR (6th) 57;313 NR 1;[2003] CarswellQue 2765;JE 2004-84;[2003] SCJ No 75 (QL);114 CRR (2d) 60;[2003] ACS no 75;61 WCB (2d) 432

R. v. Taillefer (B.) (2003), 313 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.R. TBEd. DE.027

Billy Taillefer (appellant) v. Her Majesty The Queen (respondent)

(28899)

Hugues Duguay (appellant) v. Her Majesty The Queen (respondent)

(28903; 2003 SCC 70; 2003 CSC 70)

Indexed As: R. v. Taillefer (B.)

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

December 12, 2003.

Summary:

In 1991, Taillefer and Duguay were found guilty of first degree murder by a jury. Both appealed. In 1995, the Quebec Court of Appeal dismissed Taillefer's appeal, but allowed Duguay's appeal and ordered a new trial on the reduced charge of second degree murder. In 1996, the Supreme Court of Canada denied Taillefer leave to appeal. Duguay subsequently pleaded guilty to manslaughter and was sentenced to 12 years' imprisonment. In 1999, a commission inves­tigating police conduct in the case deter­mined that the police and Crown failed to disclose a considerable amount of relevant evidence. Duguay was granted an extension of time to appeal and leave to appeal his conviction based on the guilty plea. The Minister, acting under s. 690 of the Criminal Code, referred the matter of Taillefer's conviction to the Court of Appeal for review based on the evidence of the Crown's failure to disclose.

The Quebec Court of Appeal, after con­sidering the undisclosed relevant evidence along with the existing evidence, denied Duguay leave to withdraw his guilty plea and dismissed Taillefer's application for a review of his conviction. The court held that Duguay's unequivocal and voluntary guilty plea was made with full knowledge of the allegations and the consequences. Further, the undisclosed evidence could not have changed the verdict or influenced Duguay's decision to plead guilty. The breach of the duty to disclose did not affect trial fairness. Taillefer and Duguay appealed.

The Supreme Court of Canada allowed the appeals. The court ordered a new trial for Taillefer. Since Duguay had already served at least eight years' imprisonment on any sentence that might be imposed if he was retried for manslaughter, the appropriate remedy for him was a stay of proceedings.

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 - The Crown "seriously" infringed its duty to disclose relevant evidence - The Supreme Court of Canada stated that the accused's right to make full answer and defence was violated only if there was a reasonable possibility that the undisclosed evidence affected the trial outcome or the overall fairness of the trial (i.e. two stage process) - Even if the undisclosed evidence did not affect the reliability of the verdict, the court must go on to determine the effect of the nondis­closure on the overall fairness of the trial -The reasonable possibility of affec­ting overall trial fairness must be based on reasonably possible uses of the nondis­closed evidence or reasonably possible avenues of investigation foreclosed by the nondisclosure - See paragraphs 71 to 90.

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 - The accused was found guilty of first degree murder - The Crown "seriously" infringed its duty to disclose relevant evidence - The Supreme Court of Canada stated that the accused's right to make full answer and defence was violated where there was a reasonable possibility that the undisclosed evidence affected the overall fairness of the trial - The accused was deprived of a considerable amount of evidence that could have been used to impeach both the credi­bility of a number of Crown witnesses and the Crown's theory - Further, timely know­ledge of the undisclosed evidence would have permitted the accused to explore new avenues of investigation for the defence - The court ordered a new trial - See para­graphs 71 to 107.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - Taillefer and Duguay were convicted of first degree murder in 1991 - Taillefer's conviction appeal was dismissed - Duguay was granted a new trial for second degree murder, but pleaded guilty to the lesser offence of manslaughter - It was subsequently learned that the Crown seriously breached its duty to dis­close relevant evidence, which viol­ated the accused's right to make full answer and defence - The Supreme Court of Canada quashed Taillefer's conviction and per­mitted Duguay to withdraw his guilty plea - Both sought a stay of pro­ceedings or, alternatively, a new trial - The accused alleged that they were prejudiced by the Crown's deliberate concealment of evi­dence - The court rejected bad faith on the Crown's part - The court ordered a new trial for Taillefer - Whether a stay of proceedings was subsequently appropriate was left in the hands of the trial judge - However, Duguay was granted a stay of proceedings because he had already served eight years of his 12 year sentence (eli­gible for parole) - If he was tried and convicted for manslaughter, he would have already effectively served his sentence - See paragraphs 114 to 133.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See both Civil Rights - Topic 3133 ].

Criminal Law - Topic 4227

Procedure - Pleas - Change of plea from guilty to not guilty - An accused charged with second degree murder pleaded guilty to manslaughter - The accused sought to withdraw his guilty plea after discovery of a "serious" breach of the Crown's duty to disclose relevant evidence - The Supreme Court of Canada stated that infringement of an accused's constitutional rights may be so serious as to justify withdrawal of a guilty plea that was otherwise valid - The court stated that "the accused must demon­strate that there is a reasonable possibility that the fresh evidence would have influ­enced his or her decision to plead guilty, if it had been available before the guilty plea was entered. However, the test is still objective in nature. The question is not whether the accused would actually have declined to plead guilty, but rather whether a reason­able and properly informed person, put in the same situation, would have run the risk of standing trial if he or she had had time­ly knowledge of the undisclosed evidence, when it is assessed together with all of the evidence already known. Thus the impact of the unknown evidence on the accused's decision to admit guilt must be assessed. If that analysis can lead to the conclusion that there was a realistic possibility that the accused would have run the risk of a trial, if he or she had been in possession of that information or those new avenues of inves­tigation, leave must be given to withdraw the plea." - See paragraphs 85 to 90.

Criminal Law - Topic 4227

Procedure - Pleas - Change of plea from guilty to not guilty - An accused charged with second degree murder pleaded guilty to manslaughter - The accused sought to withdraw his guilty plea after discovery of a "serious" breach of the Crown's duty to disclose relevant evidence - The Supreme Court of Canada stated that infringement of the accused's constitutional right to make full answer and defence was so serious as to justify withdrawal of a guilty plea that was otherwise valid - Applying an objective test and having regard to the volume, weight and relevance of the undis­closed evidence, and the new possibilities that the opportunity to use that evidence would have offered, it would not be un­reasonable to think that the accused would have hesitated to admit his guilt and would have had more confidence about standing trial - The court quashed the guilty plea - Rather than ordering a new trial, the court granted a stay of proceeding where the accused had already served at least eight years' of whatever sentence he would receive if he were convicted at a new trial - See paragraphs 108 to 113.

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - [See both Criminal Law - Topic 4227 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Supreme Court of Canada stated that "the Crown must disclose all relevant information to the accused, whether incul­patory or exculpatory, subject to the exer­cise of the Crown's discretion to re­fuse to disclose information that is privi­leged or plainly irrelevant. Relevance must be as­sessed in relation both to the charge itself and to the reasonably possible de­fences. The relevant information must be disclosed whether or not the Crown intends to intro­duce it in evidence, before election or plea. Moreover, all statements obtained from per­sons who have provided relevant infor­mation to the authorities should be pro­duced notwithstanding that they are not proposed as Crown witnesses. ... the con­cept of relevance favours the disclosure of evidence. Little information will be exempt from the duty that is imposed on the pros­ecution to disclose evidence. ... 'The Crown's duty to disclose is therefore trig­gered whenever there is a reasonable possi­bility of the information being useful to the accused in making full answer and de­fence.'" - See paragraphs 59 to 60.

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials -Grounds - New evidence - [See Civil Rights - Topic 8374 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evi­dence - General - The Supreme Court of Canada distinguished between fresh evi­dence on appeal (Palmer test) and the admission of fresh evidence discovered after the Crown's breach of its duty to disclose (Dixon test) - The criteria were substantially different and not interchange­able - The court stated that "first, the fourth component of the Palmer test relates only to the impact of the fresh evidence on the result of the trial. The Dixon test is much more flexible, and requires not only that the impact of the fresh evidence on the result of the trial be assessed, but also that the impact of the failure to disclose on the overall fairness of the trial be assessed. In addition, the burden on the party seek­ing to have fresh evidence admitted is more stringent under the Palmer test than under the Dixon test. In the latter case, this court held that an accused seeking to have fresh evidence admitted by alleging a breach of his or her right to disclosure must demonstrate that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process ... The mere existence of such a possibility constitutes an infringe­ment of the right to make full answer and defence." - See paragraphs 77 to 78.

Cases Noticed:

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. 1].

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 358, refd to. [para. 22].

Adgey v. R., [1975] 2 S.C.R. 426, refd to. [para. 40].

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. 40].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 42].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 43].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 55].

R. v. Stolar - see R. v. Nielsen and Stolar.

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 59].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 60].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 61].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63, refd to. [para. 65].

Lemay v. R., [1952] 1 S.C.R. 232, refd to. [para. 65].

Duke v. R., [1972] S.C.R. 917, refd to. [para. 65].

R. v. Caccamo, [1976] 1 S.C.R. 786; 4 N.R. 133, refd to. [para. 65].

R. v. Taillefer (R.), [1989] R.J.Q. 2023; 26 Q.A.C. 246 (C.A.), refd to. [para. 66].

R. v. Savion (1980), 52 C.C.C.(2d) 276 (Ont. C.A.), refd to. [para. 66].

Cunliffe v. Law Society of British Colum­bia (1984), 11 D.L.R.(4th) 280 (B.C.C.A.), refd to. [para. 66].

R. v. Arviv (1985), 8 O.A.C. 92; 19 C.C.C.(3d) 395 (C.A.), refd to. [para. 66].

R. v. Bourget (1987), 54 Sask.R. 178; 35 C.C.C.(3d) 371 (C.A.), refd to. [para. 66].

Boucher v. R., [1955] S.C.R. 16, refd to. [para. 68].

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. 69].

R. v. Creamer (E.P.) (1995), 57 B.C.A.C. 62; 94 W.A.C. 62; 97 C.C.C.(3d) 108 (C.A.), refd to. [para. 75].

R. v. Dixon (S.) (1997), 156 N.S.R.(2d) 81; 461 A.P.R. 81 (C.A.), refd to. [para. 75].

R. v. McQuaid (Dixon Appeal) - see R. v. Dixon (S.).

R. v. Jarema (J.D.) (1996), 187 A.R. 194; 127 W.A.C. 194; 43 Alta. L.R.(3d) 345 (C.A.), refd to. [para. 75].

R. v. Peterson (B.) (1996), 89 O.A.C. 60; 106 C.C.C.(3d) 64 (C.A.), refd to. [para. 75].

R. v. Pottie (A.J.) (1996), 150 N.S.R.(2d) 56; 436 A.P.R. 56 (C.A.), refd to. [para. 75].

Comptois-Barbeau v. R., [1996] R.J.Q. 1127; 110 C.C.C.(3d) 69 (C.A.), refd to. [para. 76].

R. v. Barbeau - see Comptois-Barbeau v. R.

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225 (C.A.), refd to. [para. 76].

R. v. Antinello (J.J.) (1995), 165 A.R. 122; 89 W.A.C. 122; 97 C.C.C.(3d) 126 (C.A.), refd to. [para. 83].

R. v. Hamilton (K.W.) (1994), 125 Sask.R. 8; 81 W.A.C. 8; 94 C.C.C.(3d) 12 (C.A.), refd to. [para. 83].

R. v. Santocono (V.J.) (1996), 91 O.A.C. 26 (C.A.), refd to. [para. 83].

R. v. R.T. (1992), 58 O.A.C. 81; 10 O.R.(3d) 514 (C.A.), refd to. [para. 85].

Canada (Minister of Citizenship and Immi­gration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 114].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 114].

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, refd to. [para. 122].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 123].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 127].

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. 127].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 127].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 127].

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. 127].

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 (S.C.C.), refd to. [para. 127].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 128].

R. v. Young (1984), 3 O.A.C. 254; 40 C.R.(3d) 289 (C.A.), refd to. [para. 128].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 128].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173, refd to. [para. 128].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 128].

R. v. Jack (B.G.) (1996), 113 Man.R.(2d) 260; 131 W.A.C. 260 (C.A.), refd to. [para. 130].

R. v. Jack (B.G.), [1997] 2 S.C.R. 334; 214 N.R. 294; 118 Man.R.(2d) 168; 149 W.A.C. 168, refd to. [para. 130].

R. v. Datey, [1999] J.Q. No. 1567 (C.A.), refd to. [para. 131].

R. v. Hunter (N.) (2001), 146 O.A.C. 390; 155 C.C.C.(3d) 225 (C.A.), refd to. [para. 132].

R. v. Mitchelson (1992), 78 Man.R.(2d) 134; 16 W.A.C. 134 (C.A.), refd to. [para. 132].

R. v. Panacheese (G.), [1998] O.A.C. Uned. 338; 128 C.C.C.(3d) 159 (C.A.), refd to. [para. 132].

R. v. Lenny (R.D.) et al. (1997), 213 A.R. 161; 60 Alta. L.R.(3d) 364 (Q.B.), refd to. [para. 132].

R. v. Sophonow (1985), 38 Man.R.(2d) 198 (C.A.), refd to. [para. 132].

R. v. Sophonow (No. 2) (1986), 38 Man.R.(2d) 202; 25 C.C.C.(3d) 415 (C.A.), refd to. [para. 132].

Authors and Works Noticed:

Nova Scotia, Royal Commission on the Donald Marshall Jr. Prosecution: Find­ings and Recommendations (1989), vol. 1, pp. 238 et seq. [para. 1].

Counsel:

Johanne St-Gelais, for the appellant, Taill­efer;

Louis Belleau, for the appellant, Duguay;

Pierre Lapointe, for the respondent.

Solicitors of Record:

Johanne St-Gelais, Montreal, Quebec, for the appellant, Taillefer;

Filteau & Belleau, Montreal, Quebec, for the appellant, Duguay;

Attorney General of Quebec, Sainte-Foy, Quebec, for the respondent.

These appeals were heard on January 22, 2003, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada.

On December 12, 2003, LeBel, J., delivered the following judgment in both official languages for the Supreme Court of Canada.