R. v. Trang (D.) et al.,

• Judge: Binder, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Citation: (2003), 349 A.R. 70 (QB),2003 ABQB 1007
• Date: 08 December 2003

R. v. Trang (D.) (2003), 349 A.R. 70 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. DE.103

Her Majesty the Queen (respondent) v. De Trang, Tuan Quoc Trang, Binh Quoc Trang, Cuong Quoc Trang, Thao Mai Dao, Phuc Canh Truong, Vi Quoc Tang, Joseph Vincent Kochan (applicants)

(016233983Q1; 2003 ABQB 1007)

Indexed As: R. v. Trang (D.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Binder, J.

December 8, 2003.

Summary:

The accused were charged with conspiracy to traffic, participation in a criminal or­ganization and possession of proceeds of crime. The accused applied for disclosure of material relating to a Crown inquiry into possible misleading advice provided to the court. The appropriate procedure for exami­nation of witnesses called by the accused on a Charter application was also in issue.

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

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - The accused alleged breaches of their ss. 7, 11(a) and 11(b) Charter rights - The accused argued that since state agents' actions were being criticized, defence counsel should be en­titled to cross-examine them - The Crown argued that the accused brought the ap­plication, bore the initial burden of pre­senting evidence and could not cross-ex­amine their own witnesses - The Alberta Court of Queen's Bench agreed that not­withstanding the general rule, the court had discretion to structure voir dires to fit the particular circumstances, including per­mitting a party to cross-examine its own witness - The court stated that different considerations applied to the alleged s. 7 breach grounded in abuse and the alleged ss. 11(a) and 11(b) breaches - The court held that there was no reason to deviate from the procedure adopted in previous abuse hearings in the case (albeit with the Crown's consent), that the Crown examine in chief, followed by defence's cross-ex­amination, with a further right of the Crown to cross-examine with the court's leave - Trial fairness and efficiency was best served by adopting the same proce­dure for the s. 11 matters - See paragraphs 77 to 86.

Criminal Law - Topic 5415

Evidence and witnesses - Witnesses - Cross-examination of - [See Civil Rights -Topic 8590].

Evidence - Topic 4238.1

Witnesses - Privilege - Lawyer-client com­munications - Documents - Lawyer's work product - After the prosecution of the accused commenced, several boxes of material were discovered in September 2001 - In October 2003, a police officer (Moyle) made an ambiguous statement which suggested that the Crown and police might have misled the court about the dis­covery of the boxes - Two Crown coun­sel interviewed Moyle - The results of the Crown's inquiry were disclosed to the accused - The Alberta Court of Queen's Bench denied disclosure of notes taken by Crown counsel during the Moyle interview - The notes were protected by work prod­uct privilege - The court had reviewed the notes and found no additional facts, incon­sistencies or indication of bad faith, im­proper motive or misconduct - The court stated that "disclosure of notes of a prose­cutor taken during an ongoing prosecution as a general principle would have a chilling effect; such a principle would likely result in unduly and improperly restricting the proper prosecution of crimi­nal charges" - See paragraphs 42 to 56.

Evidence - Topic 4242.1

Witnesses - Privilege - Lawyer-client com­munications - Privilege - Com­munications between Crown prosecutors or with in­vestigators - The Alberta Court of Queen's Bench stated that "an inference can be drawn that communications between Crown counsel are privileged unless they do not relate to litigation (i.e., the prosecu­tion), in which case they are irrelevant. Further, such privilege, in my view, is analogous to work product privilege, and as such is a subset of solicitor-client privi­lege and therefore a class privilege, as being essential to the effective operation of the legal system ... If the situation were otherwise, Crown counsel would be unable to properly carry out their responsibilities, just as defence counsel would be unable to properly represent their clients if com­munications between them were not held to be covered by a class privilege." - See paragraph 18.

Evidence - Topic 4253.4

Witnesses - Privilege - Lawyer-client com­munications - Loss of privilege - To pre­vent abuse of process - After the prose­cution of the accused commenced, several boxes of material were discovered in Sep­tember 2001 - In October 2003, a police officer (Moyle) made an ambiguous state­ment which suggested that the Crown and police might have misled the court about the discovery of the boxes - The accused sought disclosure of communications made in 2001 from one Department of Justice lawyer to other Department of Justice lawyers - The Crown claimed that the communications were privileged - The accused argued that the solicitor-client privilege could be pierced because the abuse that could be inferred from Moyle's statement was extremely egregious - The Alberta Court of Queen's Bench denied disclosure of the communications - See paragraphs 57 to 60.

Evidence - Topic 4258

Witnesses - Privilege - Lawyer-client com­munications - Waiver - By inadvertent or partial disclosure - After the prosecution of the accused commenced, several boxes of material were discovered in September 2001 - In October 2003, a police officer (Moyle) made an ambiguous statement which suggested that the Crown and police might have misled the court about the dis­covery of the boxes - The Crown con­ducted an inquiry into the statement - The Crown provided various items to the de­fence regarding the Moyle incident, includ­ing interviews of certain officers and a "will say" of a Crown lawyer - The ac­cused sought disclosure of certain material - The Crown claimed that the material was privileged - The accused argued waiver through partial disclosure - The Alberta Court of Queen's Bench noted that a waiver of solicitor-client privilege required a clear intention to waive privilege - There was no intention by the police (the client) to waive privileged information based on the disclosure of the results of the Moyle inquiry - The Crown was obligated by law to conduct the inquiry and to disclose its results - Such disclosure could not be said to be voluntary nor that of the client, namely the police - See paragraphs 19 to 41.

Cases Noticed:

R. v. Regan (G.A.) (1997), 174 N.S.R.(2d) 72; 532 A.P.R. 72 (S.C.), refd to. [paras. 6, 43].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 6].

Bank of America Canada v. Mutual Trust Co., [1995] O.J. No. 73 (Gen. Div.), refd to. [para. 6].

Bone et al. v. Person et al. (2000), 145 Man.R.(2d) 85; 218 W.A.C. 85 (C.A.), refd to. [para. 6].

Pfeil v. Zink (1984), 60 B.C.L.R. 32 (S.C.), refd to. [para. 6].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 6].

R. v. Harris (No. 2) (1989), 6 W.C.B.(2d) 428 (Ont. D.C.), refd to. [para. 6].

S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd. (1983), 45 B.C.L.R. 218 (S.C.), refd to. [para. 6].

Slavutch v. University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, refd to. [para. 6].

Slavutych v. Baker - see Slavutch v. Uni­versity of Alberta.

Slavutych - see Slavutch.

R. v. Sapara, [2002] A.J. No. 483 (Q.B.), refd to. [paras. 6, 80].

R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289 (C.A.), refd to. [para. 6].

R. v. Brosseau (F.D.) (2001), 305 A.R. 1; 2001 ABPC 220, refd to. [para. 6].

R. v. Checkosis (1999), 176 Sask.R. 312; 35 C.R.(5th) 44 (Prov. Ct.), refd to. [para. 6].

R. v. Lavender (M.W.) (2000), 175 Man.R.(2d) 161 (Prov. Ct.), refd to. [para. 6].

R. v. Habhab (I.) (1997), 197 A.R. 161 (Prov. Ct.), refd to. [para. 6].

R. v. Maynard and McKnight (1969), 126 C.C.C. 46 (B.C.C.A.), refd to. [para. 6].

R. v. Clancey, [1992] O.J. No. 3968 (Gen. Div.), refd to. [para. 6].

R. v. Wyatt (F.E.) (1997), 91 B.C.A.C. 166; 148 W.A.C. 166 (C.A.), refd to. [para. 6].

R. v. Francey (2002), 6 C.R.(6th) 386 (Ont. Ct. J.), refd to. [para. 6].

R. v. Tsai (2002), 8 C.R.(6th) 130 (Ont. Sup. Ct.), refd to. [para. 6].

R. v. Regan (G.A.) (1999), 179 N.S.R.(2d) 45; 553 A.P.R. 45; 137 C.C.C.(3d) 449 (C.A.), refd to. [para. 6].

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. [paras. 6].

R. v. Trang (D.) et al. (2002), 323 A.R. 297; 11 Alta. L.R.(4th) 52; 2002 ABQB 744, refd to. [paras. 6, 38].

R. v. Trang (D.) et al. (2002), 311 A.R. 284; 2002 ABQB 286, refd to. [para. 6].

R. v. Innocente (D.J.) et al. (2000), 183 N.S.R.(2d) 1; 568 A.P.R. 1 (S.C.), refd to. [para. 6].

R. v. Dempsey (P.), [2000] B.C.T.C. Uned. 615; 2000 BCSC 1677, refd to. [para. 6].

R. v. Moscuzza (E.) et al., [2001] O.T.C. 493; 54 O.R.(3d) 459 (Sup. Ct.), refd to. [para. 6].

R. v. Napa Valley Private Winery Inc. et al. (2003), 169 O.A.C. 106 (C.A.), refd to. [para 6].

R. v. Anderson, [2000] 1 C.T.C. 108 (Sask. Prov. Ct.), refd to. [para. 6].

R. v. Anderson (D.) et al. (2001), 209 Sask.R. 117; 2001 SKQB 334, refd to. [para. 6].

R. v. Mercer (D.A.) et al. (2002), 211 Nfld. & P.E.I.R. 94; 633 A.P.R. 94 (Nfld. T.D.), refd to. [para. 6].

R. v. Trang (D.) et al. (2001), 300 A.R. 89; 2001 ABQB 825, refd to. [para. 7].

R. v. Trang (D.) et al. (2002), 307 A.R. 201; 1 Alta. L.R.(4th) 247; 2002 ABQB 19, refd to. [para. 7].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to [paras. 7, 18].

Somerville Belkin Industries Ltd. v. Brocklesby Transport et al. (1985), 5 C.P.C.(2d) 239 (B.C.S.C.), refd to. [para. 7].

Royal Bank of Canada v. Lee and Fishman (1992), 127 A.R. 236; 20 W.A.C. 236; 3 Alta. L.R.(3d) 187 (C.A.), refd to. [para. 7].

Syncrude Canada Ltd. et al. v. Babcock & Wilcox Canada Ltd. et al. (1992), 135 A.R. 21; 33 W.A.C. 21 (C.A.), refd to. [para. 7].

R. v. Schacher (D.G.) (2003), 339 A.R. 119; 312 W.A.C. 119; 2003 ABCA 313, refd to. [paras. 7, 49].

Maranda v. Richer - see Maranda v. Le­blanc.

Maranda v. Leblanc (2003), 311 N.R. 357; 2003 SCC 67, refd to. [paras. 7, 18].

R. v. Brown (J.D.), [2002] 2 S.C.R. 185; 285 N.R. 201; 157 O.A.C. 1, refd to. [paras. 7, 18].

R. v. Chan (A.H.) et al. (2002), 307 A.R. 232; 164 C.C.C.(3d) 24; 2002 ABQB 287, refd to. [para. 7].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 7].

R. v. Deacon (1947), 87 C.C.C. 271 (Man. C.A.), refd to. [para. 7].

R. v. Feldman (A.F.) (1994), 42 B.C.A.C. 31; 67 W.A.C. 31 (C.A.), refd to. [para. 7].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [paras. 7, 85].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [paras. 8, 17].

R. v. Chan (A.H.) et al. (2003), 342 A.R. 201; 2003 ABQB 759, refd to. [para. 8].

Authors and Works Noticed:

Cudmore, G.D., Civil Evidence Handbook (1994), vol. 1 [para. 7].

Martin Committee Report - see Ontario, Attorney General, Report of the Attorney General's Advisory Committee on Charge, Screening, Disclosure and Reso­lution Discussions.

Olah, J.A., The Art and Science of Ad­vocacy (1990), vol. 1 [para. 7].

Ontario, Attorney General, Report of the Attorney General's Advisory Committee on Charge, Screening, Disclosure and Resolution Discussions (Martin Com­mittee Report) (1993), generally [para. 7].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), generally [para. 6].

Counsel:

R. Claus, J. James, H.M. Silver, E. Baker, G. Lazin and D. Edney, for the ap­plicants;

P. Barber, R. Short and D. Hrabcak, for the respondent.

This matter was heard on December 1 to 3, 2003, by Binder, J., of the Alberta Court of Queen's Bench, Judicial District of Edmon­ton, who delivered the following decision on December 8, 2003.