R. v. Vassell (S.R.), 2015 ABCA 409

• Judge: Watson, Rowbotham and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 03, 2015
• Citations: 2015 ABCA 409;(2015), 609 A.R. 253

R. v. Vassell (S.R.) (2015), 609 A.R. 253; 656 W.A.C. 253 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. JA.003

Her Majesty the Queen (respondent) v. Shane Rayshawn Vassell (appellant)

(1403-0221-A; 2015 ABCA 409)

Indexed As: R. v. Vassell (S.R.)

Alberta Court of Appeal

Watson, Rowbotham and O'Ferrall, JJ.A.

December 22, 2015.

Summary:

The Alberta Court of Queen's Bench, a decision reported at [2014] A.R. Uned. 342, found Vassell guilty of possession of cocaine for the purpose of trafficking. Vassell appealed his conviction.

The Alberta Court of Appeal, O'Ferrall, J.A., dissenting, dismissed the appeal.

Editor's Note: Vassell's application alleging a breach of his right to a trial within a reasonable time under s. 11(b) of the Charter was dismissed in a decision reported at (2014), 587 A.R. 56.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - Vassell was arrested on April 11, 2011 - His trial began on April 22, 2014 - Vassell's application alleging a breach of his right to a trial within a reasonable time under s. 11(b) of the Charter was dismissed - He was convicted of possession of cocaine for the purpose of trafficking - Vassell appealed his conviction - With respect to the delay issue, Vassell said that the trial judge made a palpable and overriding error of fact when he stated that there were 4,500 pages of telephone intercepts - In fact there were no telephone intercepts and the 4,500 pages was actually the amount of the Crown disclosure - The Alberta Court of Appeal held that while the trial judge misunderstood the nature of the transcribed evidence, the error was not overriding - The trial judge did not err in assessing the complexity of the case - There was still 4,500 pages of material to review, albeit there was no electronic surveillance - The court stated that "while the trial judge misunderstood one aspect of the Crown's disclosure obligation, this was not an overriding error. Counsel for the appellant acknowledged that six months would have been a reasonable period of time for the disclosure. So even if we were to accept that the trial judge's error was overriding, it would only have altered the first period of delay by attributing four months to the Crown" - See paragraphs 15 and 17.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - Vassell's application alleging a breach of his right to a trial within a reasonable time under s. 11(b) of the Charter was dismissed - He was convicted of possession of cocaine for the purpose of trafficking - Vassell appealed his conviction - One of his main submissions regarding the delay issue related to the Crown's choice to indict all seven accused and the ensuing difficulties because of retainers, changes in counsel and other counsel's "cavalier attitude" towards the case - The Alberta Court of Appeal stated that "The Crown is free to determine how it prosecutes a case, and delay must be assessed on the basis of the charges as the Crown has framed them ... Had the Crown proceeded individually, this would have raised the possibility of seven trials of two or three days, thereby requiring the testimony of the same police officers and the introduction of the same evidence. This was an issue of prosecutorial discretion. We are not persuaded that it was unreasonable for the Crown to proceed in this manner" - See paragraph 16.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Vassell appealed his conviction for possession of cocaine for the purpose of trafficking - One ground of appeal centred on whether the trial judge erred in admitting into evidence an audio/video recorded interview of Vassell which commenced on April 6, 2011, at 22:07 at the police detachment - That interview occurred after Vassell had made a bail appearance and after he had consulted counsel - Vassell contended that the bail appearance at 20:56 was more than 24 hours after his arrest on April 5, 2011, at 17:41 and, accordingly, was in breach of s. 503 of the Criminal Code - He argued that his detention thereby became arbitrary contrary to s. 9 of the Charter - Vassell then argued that, for the purposes of s. 24(2) of the Charter, the arbitrary detention by virtue of the delay of bail hearing should have been found to have a nexus to the interview conducted after the bail hearing and after consultation with counsel - The Alberta Court of Appeal rejected this ground of appeal - The handling of the matters before the justice of the peace was found by the trial judge to have been reasonably prompt - The trial judge also found these circumstances to be akin to those in R. v. Tam (BCCA) such that it could not be said that there was arbitrary detention involved - Finally, there was no nexus between that defect, if any, and what Vassell said to the police - There was no air of reality to the suggestion that what Vassell said to the interviewing officer had anything to do with the slight delay in his bail appearance - See paragraphs 20 to 30.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Vassell appealed his conviction for possession of cocaine for the purpose of trafficking - Vassell contended that, during that period of roughly 27 hours after his arrest and before his bail appearance, there was a breach of his right to counsel under s. 10(b) of the Charter - Although Vassell was informed by the police initially upon his arrest, and again later at the detachment, that he had the right to consult counsel, he was not able to consult with counsel by phone until roughly nine hours after his arrest - The Crown conceded that this was a breach of Vassel's s. 10(b) Charter rights - Vassell said that the s. 10(b) breach was further aggravated when Vassell was informed at his bail hearing that he was being charged with a second offence of possession of the proceeds of crime - Although he had earlier consulted counsel, he was not given a further opportunity to do so - He submitted this "change of jeopardy" required a further opportunity to consult a lawyer - The Alberta Court of Appeal stated that "the Crown concedes that the police did not comply with s. 10(b) of the Charter because they did not provide a reasonable opportunity to consult with counsel 'without delay'. Nonetheless, the police were not shown to have acquired any evidence in the delay period, and the appellant was in no sense speaking involuntarily when he was pleading his case for lack of participation to the investigator. Nor are we persuaded that the appellant's s 10(b) rights were re-engaged when he was advised that he also faced a charge of being in possession of the proceeds of crime. This is not the type of change of jeopardy that warrants a further right to speak to counsel" - See paragraphs 22 to 24 and 31.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - [See Civil Rights - Topic 4604 ].

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - [See Criminal Law - Topic 4633 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Criminal Law - Topic 4633 ].

Criminal Law - Topic 3219

Compelling appearance, detention and release - Arrest - Appearance of accused before judge or justice of the peace - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - Vassell appealed his conviction for possession of cocaine for the purpose of trafficking - One ground of appeal concerned whether the trial judge reached an unreasonable verdict and in so doing (a) misapprehended material evidence and (b) failed to give effect to the principles in R. v. D.W. (S.C.C.) - The Alberta Court of Appeal stated that "We do not see anything in the trial judge's reasoning that suggests that he lost track of the burden of proof, whether or not the Crown's decision to offer the appellant's statement to police is tantamount to the giving of evidence. The principal concern to which W(D) is bent is that of a trial judge lining up opposing perspectives of the facts and then preferring one side over the other. That did not happen here and, moreover, deference is afforded to credibility findings" - See paragraphs 33 to 35.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - Vassell's application alleging a breach of his right to a trial within a reasonable time under s. 11(b) of the Charter was dismissed - He was convicted of possession of cocaine for the purpose of trafficking - Vassell appealed his conviction - Following the trial judge's ruling to reject Vassell's s. 11(b) application, Vasell had applied for a mistrial on the basis of the trial judge's misunderstanding of 4,500 pages of telephone intercept evidence - In fact there were no telephone intercepts and the 4,500 pages was actually the amount of the Crown disclosure - The trial judge refused the mistrial motion - He explained that, while he had erred, the error did not figure in his overall assessment of the issues and he would have reached the same conclusion - The Alberta Court of Appeal stated that the trial judge's decision not to grant the mistrial and not to recuse himself from the trial was within the boundaries of deference - There was no basis for a reasonable apprehension of bias here, since merely suffering an adverse ruling was not a basis for such a conclusion - Further, the court should take the trial judge seriously when he said that the factual error was immaterial to his decision - See paragraphs 18 to 19.

Cases Noticed:

R. v. Sproule (1975), 26 C.C.C.(2d) 92 (Ont. C.A.), refd to. [para. 4].

R. v. Blackman (L.), [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 4].

R.v. Pires - see R. v. Lising (R.) et al.

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 4].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 185 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 4].

R. v. Dias (G.F.) (2014), 588 A.R. 102; 626 W.A.C. 102; 2014 ABCA 402, refd to. [para. 5].

R. v. C.D. (2014), 584 A.R. 222; 623 W.A.C. 222; 316 C.C.C.(3d) 457; 2014 ABCA 333, refd to. [para. 5].

R. v. MacPherson (M.A.) (2015), 600 A.R. 35; 645 W.A.C. 35; 323 C.C.C.(3d) 428; 2015 ABCA 139, refd to. [para. 5].

R. v. Khan (K.) (2011), 277 O.A.C. 165; 2011 ONCA 173, leave to appeal refused (2011), 426 N.R. 400 (S.C.C.), refd to. [para. 5].

R. v. Schertzer (J.) et al. (2009), 255 O.A.C. 45; 2009 ONCA 742, leave to appeal refused (2010), 406 N.R. 396; 271 O.A.C. 396 (S.C.C.), refd to. [para. 5].

R. v. Sanghera (B.) et al. (2015), 468 N.R. 408; 366 B.C.A.C. 82; 629 W.A.C. 82; 320 C.C.C.(3d) 327; 2015 SCC 13, refd to. [para. 5].

R. v. Stilwell (C.) (2014), 324 O.A.C. 72; 313 C.C.C.(3d) 257; 2014 ONCA 563, refd to. [para. 6].

R. v. Alcantara (J.R.) et al. (2015), 606 A.R. 313; 652 W.A.C. 313; 2015 CarswellAlta 1476; 2015 ABCA 259, refd to. [para. 6].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 12 C.R.(4th) 1, refd to. [paras. 6, 46].

R. v. Godin (M.), [2009] 2 S.C.R. 3; 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. paras. 6, 60].

R. v. K.G.W. (2014), 324 O.A.C. 231; 314 C.C.C.(3d) 156; 2014 ONCA 598, refd to. [para. 6].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289, refd to. [para. 7].

R. v. Yelle (J.) et al. (2006), 384 A.R. 331; 367 W.A.C. 331; 2006 ABCA 160, refd to. [para. 7].

R. v. MacDougall (P.A.), [1998] 3 S.C.R. 45; 231 N.R. 147; 168 Nfld. & P.E.I.R. 83; 517 A.P.R. 8, refd to. [para. 8].

R. v. Caines (J.M.) et al., [2011] A.R. Uned. 556; 2011 ABQB 82, refd to. [para. 16].

R. v. Guilbride - see R. v. Thomson (K.) et al.

R. v. Thomson (K.) et al. (2006), 230 B.C.A.C. 128; 211 C.C.C.(3d) 465; 2006 BCCA 392, refd to. [paras. 16, 50].

R. v. O'Brien (M.D.), [2011] 2 S.C.R. 485; 417 N.R. 52; 304 N.S.R.(2d) 383; 960 A.P.R. 383; 2011 SCC 29, refd to. [para. 19].

R. v. Tam (R.K.N.) et al. (1995), 61 B.C.A.C. 40; 100 W.A.C. 40; 100 C.C.C.(3d) 196 (C.A.), refd to. [para. 28].

R. v. Vuozzo (A.B.) et al. (2013), 544 A.R. 271; 567 W.A.C. 271; 2013 ABCA 130, leave to appeal refused [2013] S.C.C.A. No. 314, refd to. [para. 29].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 3 C.R.(4th) 302, refd to. [paras. 33, 37].

R. v. Hogg (J.L.), [2014] 1 S.C.R. 344; 454 N.R. 83; 347 Nfld. & P.E.I.R. 354; 1080 A.P.R. 354; 2014 SCC 18, refd to. [para. 33].

R. v. Wilcox (J.S.), [2014] 3 S.C.R. 616; [2014] N.R. Uned. 179; 2014 SCC 75, refd to. [para. 33].

R. v. Koruz et al. (1992), 125 A.R. 161; 14 W.A.C. 161; 1992 ABCA 144, refd to. [para. 44].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 75 O.R.(2d) 673, refd to. [para. 44].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 73].

R. v. Loewen (D.J.), [2011] 2 S.C.R. 167; 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3; 2011 SCC 21, refd to. [para. 74].

R. v. Stevenson (A.) (2014), 328 O.A.C. 132; 317 C.C.C.(3d) 385; 2014 ONCA 842, refd to. [para. 74].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 79].

R. v. A.R.M. (2011), 599 A.R. 343; 643 W.A.C. 343; 283 C.C.C.(3d) 89; 2011 ABCA 98, refd to. [para. 80].

R. v. S.E.V. (2009), 448 A.R. 351; 447 W.A.C. 351; 2009 ABCA 108, refd to. [para. 80].

R. v. D.H.W., [2008] 2 S.C.R. 235; 375 N.R. 217; 255 B.C.A.C. 1; 430 W.A.C. 1; 2008 SCC 33, refd to. [para. 83].

R. v. Wittwer - see R. v. D.H.W.

R. v. Plaha (B.) (2004), 189 O.A.C. 376; 188 C.C.C.(3d) 289; 24 C.R.(6th) 360 (C.A.), refd to. [para. 84].

R. v. Mian (M.H.), [2014] 2 S.C.R. 689; 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 87].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 9 [para. 21]; sect. 10(b) [para. 22]; sect. 11(b) [para. 2].

Criminal Code, R.S.C. 1985, c. C-46, sect. 503 [para. 25].

Counsel:

J.D. Martin, for the respondent;

G.M. Johnson, for the appellant.

This appeal was heard on September 3, 2015, before Watson, Rowbotham and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered on December 22, 2015, including the following opinions:

Watson and Rowbotham, JJ.A. - see paragraphs 1 to 36;

O'Ferrall, J.A., dissenting - see paragraphs 37 to 93.