R. v. Trask (J.) et al., (2014) 348 Nfld. & P.E.I.R. 76 (NLPC)

JudgePorter, P.C.J.
CourtNewfoundland and Labrador Provincial Court (Canada)
Case DateFebruary 25, 2014
JurisdictionNewfoundland and Labrador
Citations(2014), 348 Nfld. & P.E.I.R. 76 (NLPC)

R. v. Trask (J.) (2014), 348 Nfld. & P.E.I.R. 76 (NLPC);

    1082 A.P.R. 76

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. MR.023

Her Majesty the Queen v. Jordan Trask and Tanika Bugden

(Docket 0614PA00010)

Indexed As: R. v. Trask (J.) et al.

Newfoundland and Labrador Provincial Court

Porter, P.C.J.

March 19, 2014.

Summary:

The accused were charged with sexual assault. The Crown disclosed to the accused an edited version of the complainant's statement to the police. The accused applied for an order that an unedited version of the statement be provided to them. They also sought an order allowing them to adduce evidence at trial of the complainant's prior sexual activity with them.

The Newfoundland and Labrador Provincial Court denied the application for disclosure of an unedited version of the complainant's statement. It was premature to rule on the application to adduce evidence of the complainant's prior sexual activity with the accused, because the accused had not yet laid the evidentiary foundation necessary to comply with the Criminal Code.

Criminal Law - Topic 128

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

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 692

Sexual offences, public morals and disorderly conduct - Sexual offences - Evidence - Admissibility hearing - Evidence of complainant's sexual activity - The accused were charged with sexual assault - They sought an order allowing them to adduce evidence at trial of the complainant's prior sexual activity with them - The Newfoundland and Labrador Provincial Court held that it was premature to rule on the application, because the accused had not yet laid the evidentiary foundation necessary to comply with the Criminal Code - Section 276.1 of the Code required a written application to the court, and an in camera hearing - No affidavit of the accused was tendered in support of the application - Instead, a pro forma affidavit sworn by counsel for the accused was filed - A pro forma affidavit of counsel was of limited utility in matters such as these - Since the accused's counsel would not have personal knowledge of the facts, and should not be put in the situation of being cross-examined on his affidavit, no affidavit should be sworn by counsel for the accused - The preferred practice would be to have the affidavit of the accused tendered in support of the application - The affidavit had to establish a connection between the complainant's sexual history and the accused's defence - See paragraphs 21 to 28.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused were charged with sexual assault - The Crown disclosed to the accused an edited version of the complainant's statement to the police - The accused applied for an order that an unedited version of the statement be provided to them - The Crown said that it acted in a quasi-judicial role, and, in that capacity, had edited the version of the statement already disclosed - Further, the Crown said the court could compare the edited and unedited versions of the statement, and decide whether the Crown had failed to provide the accused with all relevant information in the complainant's statement - The accused said that it was not up to the Crown to edit the statement - Instead, the accused demanded an unedited version of the statement, and claimed a right to review it and decide what was or was not relevant - The Newfoundland and Labrador Provincial Court dismissed the application - The correct practice when there was a dispute about disclosure was to have a judge determine what was or was not relevant - Irrelevant information need not be disclosed - It was not counsel for the accused who determined relevance - Since the parts of the statement marked with yellow highlighter were not relevant to the matter before the court, there was no reasonable possibility that their non-disclosure would impair the accused's right to make full answer and defence - See paragraphs 9 to 20.

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. 3].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 8].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193, refd to. [para. 12].

R. v. McNeil (S.J.) (2013), 340 Nfld. & P.E.I.R. 42; 1057 A.P.R. 42; 2013 NLCA 52, refd to. [para. 13].

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. 14].

R. v. Petten (A.G.) (1993), 110 Nfld. & P.E.I.R. 84; 346 A.P.R. 84 (Nfld. C.A.), refd to. [para. 15].

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. 16].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 276.1(2) [para. 24].

Counsel:

P. Carpenter, for the Crown;

J. Hughes, Q.C., for the applicants.

These applications were heard on February 25, 2014, at Grand Bank, N.L., before Porter, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on March 19, 2014.

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