R. v. Tremblay (D.D.), (2012) 551 A.R. 385 (QB)

• Judge: Hillier, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 28, 2012
• Citations: (2012), 551 A.R. 385 (QB);2013 ABQB 43

R. v. Tremblay (D.D.) (2012), 551 A.R. 385 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.068

Her Majesty the Queen v. Dean Daniel Tremblay (110028115Q1; 2013 ABQB 43)

Indexed As: R. v. Tremblay (D.D.)

Alberta Court of Queen's Bench

Judicial District of St. Paul

Hillier, J.

December 28, 2012.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking, possession of marijuana, possession of the proceeds of crime and three related weapons offences. Hotel staff found cocaine hidden in a sock in a hotel room that the accused recently vacated in favour of another room. Police arrested the accused in the second room, where further cocaine and drug paraphernalia were found. Police requested that hotel staff review and copy surveillance footage of the accused and the coming and going of anyone relating to the second room. Hotel staff made five CDs, but they were blank. Hotel staff advised that no video footage of the accused was found. The police made no further attempt to obtain surveillance footage. The accused requested any surveillance footage, as his defence was that there were other people in the room whom he wished to subpoena. The surveillance footage was no longer available, having been erased after two weeks. The accused argued that the loss of the surveillance footage violated his s. 7 Charter right to make full answer and defence, warranting a stay of proceedings.

The Alberta Court of Queen's Bench dismissed the application. The police, although acting in good faith, breached their duty to disclose relevant evidence through unacceptable negligence. However, where the loss of the surveillance footage had no significant impact on the accused's right to a fair trial, a stay of proceedings was not warranted where the accused was not prejudiced by the loss of the surveillance footage.

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 charged with, inter alia, possession of cocaine for the purpose of trafficking - Hotel staff found cocaine hidden in a sock in a hotel room that the accused recently vacated in favour of another room - Police arrested the accused in the second room, where further cocaine and drug paraphernalia were found - Police requested that hotel staff review and copy surveillance footage of the accused and the coming and going of anyone relating to the second room - Hotel staff made five CDs, but they were blank - Hotel staff advised that no video footage of the accused was found - The police made no further attempt to obtain surveillance footage - The accused requested any surveillance footage, as his defence was that there were other people in the room whom he wished to subpoena - The surveillance footage was no longer available, having been erased after two weeks - The accused argued that the loss of the surveillance footage violated his s. 7 Charter right to make full answer and defence, warranting a stay of proceedings - The Alberta Court of Queen's Bench dismissed the application - The police, although acting in good faith, breached their duty to disclose relevant evidence through unacceptable negligence - Police were entitled to rely on business staff or security services to retrieve and provide surveillance footage - They were not entitled to delegate their responsibility to preserve, review, or assess the surveillance footage, particularly where that required the exercise of judgment or discretion - However, where the loss of the surveillance footage had no significant impact on the accused's right to a fair trial, a stay of proceedings was not warranted where the accused was not prejudiced by the loss of the surveillance footage.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to a just and fair trial - [See Civil Rights - Topic 3133 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 128

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

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133 ].

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. 21].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 21].

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; 148 D.L.R.(4th) 608, refd to. [para. 22].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 112 C.C.C.(3d) 289, refd to. [para. 24].

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; 103 C.C.C.(3d) 1, refd to. [para. 26].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [para. 26].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 101 C.C.C.(3d) 193, refd to. [para. 26].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201; 139 C.C.C.(3d) 321, refd to. [para. 26].

R. v. Pham (K.T.) (2005), 204 O.A.C. 299; 36 C.R.(6th) 200 (C.A.), affd. [2006] 1 S.C.R. 490; 349 N.R. 387; 213 O.A.C. 399; 2006 SCC 26, refd to. [para. 29].

R. v. Svekla (T.G.) (2007), 428 A.R. 306; 2007 ABQB 557, refd to. [para. 38].

R. v. Abukar (M.A.) (2009), 472 A.R. 328; 2009 ABPC 136, refd to. [para. 39].

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; 89 C.C.C.(3d) 1, refd to. [para. 44].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 45].

Counsel:

Donald R. Smith (Clements & Smith), agent for the Attorney General, for the Crown;

Hasaan J. Jomha (Jomha Law Office), for the accused.

This application was heard on October 16-17, 2012, before Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of St. Paul, who delivered the following judgment on December 28, 2012.