R v Carter, 2021 ABQB 430

Court of Queen’s Bench of Alberta Citation: R v Carter, 2021 ABQB 430 Date: 20210609 Docket: 160682894Q2 Registry: Calgary Between: Her Majesty the Queen Crown - and - Kenneth Robert Carter and Stephen Charles Walton Accused Corrected judgment: A corrigendum was issued on June 24, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice D.A. Labrenz _______________________________________________________ Introduction

[ 1 ] The Applicants, Kenneth Robert Carter [“Mr. Carter”] and Stephen Charles Walton [“Mr. Walton”], seek an order compelling the Crown to provide particulars pursuant to s.587(1) (

a) of the Criminal Code of Canada, RSC 1985, c C-46 [“ Criminal Code ”] in relation to a perjury trial presently scheduled to commence October 12, 2021. The Crown resists this application. Mr. Carter filed his application on March 16, 2021 and Mr. Walton on April 21, 2021. Background [ 2 ] On June 15, 2015, Mr. Carter and Mr. Walton were charged with criminal harassment and perjury by way of an information sworn that date. On June 28, 2016, the Crown elected to prefer a direct indictment in relation to both charges. Mr.

Walton and his wife were also charged, at the same time, with additional counts on the same indictment. [ 3 ] On April 13, 2018, the accused filed an application for severance of the counts and of the accused. Tilleman J heard the applications and gave his decision on July 18, 2018, granting the severance of the perjury charges. However, Justice Tilleman denied the application to have Mr. Carter tried separately from Mr. Walton. [ 4 ] The criminal charges against Mr. Carter and Mr. Walton, other than the perjury charges, proceeded to trial in the fall of 2018.

As I have already mentioned, it is the perjury charges that are the subject of the present application for criminal particulars. The indictment as presently framed alleges as follows: Mr. Carter stands charged that he: Between the 10 th day of March, 2014, and the 18 th day of March 2014, both dates inclusive, at or near Calgary, Alberta, did, with intent to mislead, orally make before the Court of Queen’s Bench of Alberta false statements under oath or solemn affirmation, thereby committing perjury, contrary to

section 132 of the Criminal Code of Canada . Mr. Walton stands charged that he: On or about the 21 st or [sic] March, 2014, at or near Calgary, Alberta, did, with intent to mislead, orally make before the Court of Queen’s Bench of Alberta false statements under oath or solemn affirmation, thereby committing perjury, contrary to

section 132 of the Criminal Code of Canada . [ 5 ] The perjury charges against both Mr. Carter and Mr. Walton arose from the testimony of both before this Court in March of 2014 in relation to a trial that involved the parenting of Mr. Carter’s child who was at the time of trial just over 2 ½ years old. Ms. Akele Taylor, the mother of the child, was the defendant of that particular civil action and was also the complainant in relation to the criminal harassment charges that went to trial in 2018. [ 6 ] In relation to the perjury charges, Mr. Carter and Mr.

Walton received the first tranche of the Crown’s disclosure in July of 2016. It is common ground that several documents in the disclosure suggested that the basis for the perjury charges relate to the nature of the relationship between Mr. Carter and Mr. Walton as described by both during the course of 2014 parenting trial. [ 7 ] No request was made by Mr. Carter or Mr. Walton for criminal particulars until the omnibus application filed by Mr. Carter seeking, inter alia , severance of the accused and severance of the counts. Mr.

Walton, at that time, did not provide any notice that he was seeking the particulars of his perjury charge. [ 8 ] In his July 2018 notice, Mr. Carter indicated that he was “unable to establish his defence as he is unable to determine what the alleged perjury is”. [ 9 ] Following a pre-trial conference on November 13, 2018, the prosecution agreed to provide further information in relation to the perjury charges to alleviate this concern as first raised by Mr. Carter.

The Crown, responding to the suggestion that the accused were unable to determine what the Crown alleged to be the perjured testimony, sent a letter to counsel for both Mr. Carter and Mr. Walton on January 4, 2019, which stated in part as follows: With respect to your request for more detailed particulars relating to the perjury matter for both Kenneth Carter and Stephen Walton we can advise that the testimony that the Crown alleges to have been made falsely under oath relates to the nature of the business arrangement between Mr. Carter and Mr.

Walton following the ending of the relationship between Akele Taylor and Mr. Carter. This includes: • Mr. Carter’s involvement in the business arrangement; • Instructions give to Mr. Walton by Mr. Carter; • Payments made as part of the business arrangement between Mr. Carter and Mr. Walton; • What information was communicated between Mr. Carter and Mr. Walton as part of the business arrangement; and • Mr. Carter’s reaction to information received during the business arrangement. [ 10 ] Unfortunately, Mr.

Carter fell ill while travelling in Russia in the spring of 2019 and the trial scheduled for November of 2019 was rescheduled to October of 2020. In September of 2020, Mr. Carter’s previous counsel successfully applied to be removed from the record, and Mr. Carter’s present counsel made it clear that they could only represent Mr. Carter if they were afforded sufficient time to prepare for trial. The perjury trial scheduled for October 2, 2020 was adjourned as a consequence until May of 2021.

In March of 2021, the trial was further adjourned for reasons related to the novel coronavirus (COVID-19) to October of 2021.

[11] On September 14, 2020, just before Mr. Carter’s previous counsel was granted leave to withdraw as counsel of record onSeptember 21, 2020, the Crown emailed counsel for Mr. Walton and counsel for Mr. Carter a copy of Mr. Walton’s trial transcript fromthe March 2014 trial. That transcript was highlighted by the Crown in an attempt to identify the statements that the prosecution claimedconstituted Mr. Walton’s perjured statements. In the same emailed correspondence, the Crown promised it would duplicate this effort forthe benefit of Mr. Carter.

The Crown stated in the September 2020 email, amongst other things, as follows: We are also going to argue that Steve Walton’s reason for having Reggie Hunt attend Akele Taylor’s residence in March of 2013 was notwhat he testified to.

His characterization of that incident is at pages 1266-1168 (direct examination) and 1300-1303 (cross examination).We have identified these portions in the transcript as well, this time by indicating where they start and end instead of using yellowhighlighting... [12] Following a further pre-trial conference in January of 2021, this Court directed the Crown to provide a response to theDefence request for further particulars of the alleged perjury by February 15, 2021. [13] On February 13, 2021, the Crown provided highlighted transcripts of both Mr. Carter and Mr.

Walton’s testimony from theMarch 2014 trial, and referenced other material as follows: “...a draft of the Agreed Statement of Facts, a copy of the “Offlines” exhibit reference within the ASF, a highlighted copy of Mr. Carter’stranscript, which is our response to your request for particulars, and a copy of an email sent to previous counsel and Mr. Hepner whichincludes the highlighted copy of Mr. Walton’s transcript which is, again, our response to the request for particulars.” [14] At the January pre-trial conference, counsel for Mr. Carter and Mr.

Walton were directed to provide a response concerningthe particulars issue by March 12, 2021. Having not received a response from Defence counsel, the Crown emailed both counsel seekingtheir position as to the need for formal particulars on March 15, 2021. Counsel for Mr. Carter responded indicating that that the email of February 13th did not satisfy the request for further particulars and that a motion for particulars would be filed. The Position of the Parties Mr. Carter’s Position [15] As a starting point Defence counsel on behalf of Mr.

Carter concedes, referencing ss.581-586 of the Criminal Code, that theperjury count he faces is sufficient, and that he is not seeking to quash the indictment by reason of insufficiency. [16] Defence counsel advises, instead, that of the 35 passages highlighted by the Crown from his trial testimony he is unable todetermine with any degree of certainty what the Crown alleges to be a false statement in 25 of the 35 highlighted passages.

With respectto the 10 passages in which Defence believes that they have correctly identified what the Crown alleges to be a false statement, theDefence would like some confirmation from the Crown that they are correct. [17] Defence counsel advise that in relation to the remaining 25 passages, that neither the Stinchcombe disclosure nor the Crown’scorrespondence or highlighting permits them to answer the basic question of what it is that the Crown alleges establishes a criminaloffence under s.132 of the Criminal Code. [18] In bringing forward Mr. Carter’s application for particulars under s. 587(1)(

a) of the Criminal Code, Defence counselconceded that the Defence has no right to request the specific evidentiary grounds that the Crown will rely upon for proof of the falsityof each statement, or the manner or path to liability from which the Crown argues in any given case that perjury occurred. On the laterpoint, Mr. Greenspan in his oral argument provided two examples of paths to liability that he concedes do not properly requireparticularization by the Crown. The first example Mr.

Greenspan referred me to was the dishonest failure to recollect (with intent tomislead) found in R v Wolf, (SCC), [1975] 2 SCR 107 and, as a second example, the literally true statement uttered byaccused who knew that the true statement would be taken in a misleading way as was the case in Farris v The Queen, (ON CA), [1965] 2 OR 396 (ONCA). [19] Instead, as opposed to the conceded impermissibility of attempting to receive a roadmap as to avenues the Crown will followto argue proof of the alleged perjury, or as an attempt to impermissibly secure the theory of the Crown as to liability, Defence counselargue that the meaningful right to full answer and defence must always include, in language borrowed from Justice Benotto (as she thenwas) in R v Armour Pharmaceuticals Company, [2006] OJ No 4738 (ONSC) at paras 20-21, an answer to the question of “preciselywhat it is that I am supposed to have done?” [20] Counsel for the Mr.

Carter also responded to the Crown argument that the significance of the present application forparticulars is best revealed by the dilatory approach taken by both Mr. Carter and Mr. Walton. In this regard, Mr. Greenspan took issuewith the Crown’s suggestion that the stolid approach of the two accused should cause me to infer that the request for particulars is for apurpose unrelated to the ability to make full answer and defence. [21] Mr. Greenspan urged me to consider the history of the matter, and suggested that it did not reveal disinterest on Mr. Carter’spursuit of particulars.

Instead, as he outlined the chronology of proceedings, Mr. Greenspan advised that with the severance of the perjurycounts in July of 2018, counsel’s attention was squarely focussed on the criminal harassment allegations that were the first to proceed totrial. [22] When that trial was completed in September of 2020, and his previous counsel was removed from the record, Mr. Greenspanadvised that with the adjournment of the perjury trial to May of 2021, the process of reviewing disclosure began. Mr.

Greenspan saidthat there were difficulties in determining whether the disclosure was complete, and with the indexing and organization of the disclosureto an extent that it was realized that the disclosure was incomplete.

[ 23 ] Once counsel for Mr. Carter was sufficiently familiar with the disclosure, somewhere around the time of the pretrial conference in January of 2021, the Crown was put on notice that formal particulars were being sought on behalf of Mr. Carter. For these reasons, counsel argue that it would be inappropriate for me to draw any adverse inference against the propriety or legitimacy of the present application. Mr.

Greenspan emphasized in this regard that he did not take issue with previous counsel, but emphasized instead that Crown was made aware that further particulars were necessary to properly make full answer and defence, and that counsel for Mr. Carter have pursued those particulars with reasonable diligence. Mr. Walton’s Position [ 24 ] Mr. Hepner Q.C., as counsel on behalf of Mr. Walton, conceded that the bringing of Mr. Walton’s applications for particulars was not really on his mind until such time as Mr. Carter retained new counsel; however, Mr.

Hepner Q.C. argued that it was not inappropriate to bring an application on behalf of Mr. Walton at this stage despite having been his counsel since 2016. While Mr. Hepner Q.C. conceded that the absence of particulars for Mr. Walton was “less problematic” because Mr. Walton faced fewer highlighted passages from his prior testimony. [ 25 ] Notwithstanding that concession, Mr. Hepner Q.C. argued that he faced similar difficulties to those identified by counsel for Mr. Carter and required that Mr. Walton also required the requested particulars for the purpose of making full answer and defence.

The Position of the Crown [ 26 ] Ms. Love made oral argument on behalf of the Crown. Ms.

Love outlined the Crown’s opposition to the particulars’ application advanced on behalf of the two accused as involving three specific considerations: one, whether the application was for a permitted purpose; two, whether the applicant accused have demonstrated that particulars are necessary for the purpose; and, three, whether necessity is made out given their suggested inaction over the course of these proceedings. [ 27 ] In the Crown’s submission, the requested particulars are not necessary and are instead an inveigled attempt to have the Crown particularize its theory; that is, counsel for the Defence are seeking not the “what” in relation to the alleged false statement, but instead, are asking for the “why” and the “how”. [ 28 ] As to necessity, the Crown’s oral submissions referred to the voluminous disclosure provided to Defence.

At the time of initial disclosure in 2016, the accused were provided with a folder called a “perjury binder”, which the Crown says is a

summary that identifies areas of both Mr. Carter’s and Mr. Walton’s testimony that led to the police laying perjury charges. The binder also contains tabs with excerpts of the transcript highlighted, along with a police officer’s notations as to issues with the testimony, and references to the evidence from the investigation said to demonstrate that the testimony of both men is in some aspects false. [ 29 ] Ms. Love also said that the disclosure contained a 2,301-page report in a PDF and bookmarked format, with the bookmarks corresponding to the charges. The bookmarked portions of the PDF, Ms.

Love said, include excerpts of the transcript and evidence from the investigation that demonstrates the allegations with respect to what testimony is said to be false. [ 30 ] Ms. Love also referenced the 10-page decision of Poelman J finding facts from the criminal harassment trial. Ms. Love argues that this decision is important because it a concise

summary of the criminal harassment case and the evidence heard at the trial as opposed to the 2,300-page

summary from the police or the 1200 plus page transcript from the criminal harassment trial. Ms. Love also stated that Justice Poelman’s finding of facts provides some insight into the prosecution’s theory at the criminal harassment trial, which plays a substantial

part in the prosecution’s current theory as to the alleged false statements at issue in the present perjury prosecution. [ 31 ] Ms. Love also emphasized the slowness in which Mr. Carter and Mr. Walton have advanced any application for particulars as being more than merely suggestive of the conclusion that neither accused views the requested particulars as necessary for full answer and defence.

Analysis The Sufficiency of the Counts [ 32 ] As a starting point, although no concern was raised before me as to the sufficiency of the perjury counts as framed, I intend briefly to review some of the basic legal and legislative requirements. Sections 581 - 586 of the Criminal Code outline the general provisions to be considered when considering the sufficiency of individual counts. [ 33 ]

Section 581 of the Criminal Code states, inter alia , as follows: s.581(1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an indictable offence therein specified ...

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count ...

[34]

Section 583 of the Criminal Code sets out some specific drafting omissions, that by their absence alone, would be insufficientto invalidate a count so long as the count otherwise meets the requirements of s.581. Appropriate to my consideration in the applicationbefore me is s.583(e), which refers to the omission of “set[ting] out the words used where the words used are said to be the subject matterof the charge”, and s.583(f), omitting to “specify the means by which the alleged offence was committed”. [35]

Section 585 of the Criminal Code contains specific provisions in relation to perjury as follows: s.585(

a) No count that charges perjury ... Is insufficient by reason that it does not state the nature of the authority of the tribunal before which the oath or statement was taken ormade, or the subject of the inquiry, or the words used or the evidence fabricated, or that it does not expressly negative the truth of thewords used. [36] As identified by Justice Romilly in R v Violette, 2008 BCSC 185 at para 24, arguments historically as to the sufficiency ofcriminal charges garnered greater attention and occupied more judicial time.

Legislative amendments, first introduced to the CriminalCode in 1985, including s.581 of the Criminal Code, greatly reduced the number of challenges as to sufficiency. As Justice Romillynotes, informations were often stuck down by Canadian courts for failing to provide sufficient transactional information to an accused. The Honourable R.E.

Salhany references this history in Canadian Criminal Procedure, 6th ed., at 6.800, wherein Salhany describes theformer unworkable and often unwieldly response to the frequent challenges as to drafting sufficiency: At common law, and particularly by the beginning of the 19th century, the indictment had become a document of extreme prolixity andtechnicality. Proper words of art were required to be used when framing the charges against the accused. All the facts and circumstancesof the offence including the intent had to be set out in the indictment in great detail and with meticulous certainty.

This requirement ofcertainty was so stringently adhered to that any omission or slight defect was fatal to the indictment and resulted in complete impunityfor the accused. A conviction could be obtained only under a flawless indictment because, as Blackstone argued, an indictment whichwas erroneous could “render his guilty uncertain”. [37] Salhany provides, as one example, the early case of Brodie v The King, (SCC), [1936] SCR 188 at 196-198.

Inthat decision, the Supreme Court of Canada held that an indictment was insufficient because it did not detail the substance of theparticular agreement said to constitute the conspiracy. The Supreme Court described the indictment as naming the accused as parties to aseditious conspiracy, and as describing the time and the place of the alleged offence.

The problem with the indictment according toRinfret J at p 198: [was that] “it does not describe the offence in such a way as to lift it from the general to the particular”. [38] As Salhany examples, numerous cases subsequent to Brodie have not insisted upon the same rigorous degree of particularity.Salhany cited, in this regard, R v RIC, [1986] OJ No 1087 (ONCA).

In that appeal, the Ontario Court of Appeal held that it wasunnecessary for a sexual assault charge to specify the exact or precise nature of the sexual assault being alleged by using additionaldescriptors such as “rape, attempted rape, or indecent assault”.

The Court, referencing its earlier decision in R v Hulan, (ON CA), [1970] 1 CCC 36 (ONCA) agreed, however, that several acts involving the same parties at successive times are capable ofbeing treated as one transaction for the purposes of a count in an information. [39] The modern approach to the sufficiency of a count as contained in an indictment was succinctly stated by Cory J in R vDouglas, (SCC), [1991] 1 SCR 301 at p 314 as follows: From these cases it can be seen that an indictment is adequate if it contains sufficient details to give the accused reasonable informationwith respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of a defence.Whether an indictment is sufficient will depend on the offence charged and the facts of the case.

Time is not required to be stated withexact precision unless it is an essential part of the offence charged and the accused is not misled or prejudiced by any variation in timethat arises. [40] Cory J in Douglas also referred to the helpful statement made by Justice Wilson in R v B(G), (SCC),[1990] 2 SCR 30 at pp 44-45 as follows: It is apparent from these cases that what constitutes reasonable or adequate information with respect to the act or omission to be provenagainst the accused will of necessity vary from case to case.

The factual matters which underlie some offences permit greater descriptiveprecision than in the case of other offences. Accordingly, a significant factor in any assessment of the reasonableness of the informationis the nature and legal character of the offence charged... [41] The purpose of an indictment is principally, therefore, to put an accused on formal notice of potential legal jeopardy. Anotherconvenient way to express this concept is to say that an accused is entitled to be sufficiently apprised of the charge or charges to be met:R v Guérin, [1996] QJ No 376 (QCCA).

As mentioned earlier, Justice Benotto in Armour Pharmaceuticals at para 20, succinctly andaccurately summarized the law by stating that an indictment should “answer with clarity the essential question which every person asks:precisely what is it that I am supposed to have done?” [42] In R v Coté, (SCC), [1978] 1 SCR 8 at p 13, de Grandpré J described the necessity that an accused bereasonably informed of the charge or charges, as being the “golden rule” in the following words: An important function of an indictment is to put the accused on formal notice of his or her potential legal jeopardy.

It is equallyimportant, of course, that if the Crown can establish some but not all of the facts described in the indictment or set out in the statutorydefinition of the offence, and such partial proof satisfies the constituent elements of a lesser and included offence, that the result be notan acquittal but a conviction on the included offence. As Professor Glanville Williams wrote, “an included offence is one that is madeout of bits of the offence charged” (“Included Offences” (1991), 55 J. Crim. L. 234, at p. 234). Any other outcome would result in a

waste of the resources expended on the trial. [43] In the present circumstances, I agree with both the Crown and Defence as to the legal sufficiency of the perjury counts aspresently drafted. The counts reasonably inform both Mr. Carter and Mr.

Walton of the following: the offence alleged is perjury,contrary to s.132 of the Criminal Code; both men are alleged to have intended to have misled the Court by giving false statements underoath or solemn affirmation; the alleged false statements were made orally in the Court of Queen’s Bench of Alberta; the counts specifythe date or dates that the alleged perjury occurred; and, finally, the offences are alleged to have occurred within the jurisdiction of theCourt at Calgary, Alberta. [44] Defence counsel, while conceding sufficiency, argue that beyond the acknowledged sufficiency of the counts - furtherparticulars are required by both Mr.

Carter and Mr. Walton to ensure a fair trial. In order to adequately defend, both accused argue thatthey need some assistance to “define the factual transaction that the prosecution must prove to support a conviction”: R v Krymowski,2005 SCC 7 at para 18; citing, R v McCune, (1998) (BC CA), 131 CCC (3d) 152 (BCCA); R v Groot, (1998) (ON CA), 41 OR (3d) 280 (ONCA).

The Present Application – s. 587 of the Criminal Code The Criminal Code and the General Approach [45] Beyond concluding that a count or counts contained in an indictment are properly and sufficiently drafted, in somecircumstances, an accused might reasonably require greater particularization of the allegations so as to properly prepare a defence andreceive a fair trial.

In other words, where the indictment is legally sufficient as drafted, the additional request for clarification as to theunderlying details of an offence, is a matter for particulars: R v Colgan, (SCC), [1987] 2 SCR 686. [46] When considering such an application, a court may make an order for further particulars if satisfied that it is “necessary for afair trial”. Specifically, the trial court has the discretion to order the prosecution to furnish “further particulars” of the act or omission andtransaction referred to in the charge: s. 587 Criminal Code.

Section 587 reads as follows: s.587(1) A court may, where it is satisfied that it is necessary for a fair trial, order the prosecutor to furnish particulars and, withoutrestricting the generality of the foregoing, may order the prosecutor to furnish particulars. (

a) of what is relied on in support of a charge of perjury, the making of a false oath or a false statement, fabricating evidence orcounselling the commission of any of those offences; ... (

e) further describing any writing or words that are the subject of a charge; (

f) further describing the means by which an offence is alleged to have been committed; or ...

(2) For the purposes of determining whether or not a particular is required, the court may give consideration to any evidence that hasbeen taken.

(3) Where a particular is delivered pursuant to this section, (

a) a copy shall be given without charge to the accused or his counsel; (

b) the particular shall be entered into the record; and (

c) the trial shall proceed in all respects as if the indictment had been amended to conform with the particular. [47] As I consider Mr. Carter and Mr. Walton’s present application, which is discretionary under s.587, it is important that I remainrespectful of the constitutional protection afforded to Mr. Carter and Mr. Walton’s right to make full answer and defence. The right tofull answer and defence itself is afforded constitutional protection as one imperative of the principles of fundamental justice included ins.7 of the Canadian Charter of Rights and Freedoms [“the Charter”]; and, interrelatedly, as an aspect of the right to a fair trial unders.11(

d) of the Charter: R v Rose, (SCC), [1998] 3 SCR 262 at paras 93 and 98. [48] In R v Stinchcombe, (SCC), [1991] 3 SCR 326 at p 336, Sopinka J described the right to make full answerand defence as “one of the pillars of criminal justice on which we heavily depend to ensure the innocent are not convicted”.

The right tofull and timely disclosure, as an aspect of the right to make full answer and defence, ensures that no accused person should be prosecutedby surprise or ambush - because to do so risks the conviction of the innocent. [49] As identified by the Supreme Court of Canada in Rose, there are two important and interrelated aspects to the right to makefull answer and defence.

The first involves the right of the accused to know the case that he or she must meet before deciding whether torespond with defence evidence, and the second protects the right of an accused to meaningfully defend against the prosecution’s effortsto secure a conviction. The majority in Rose stated at paras 102-103 as follows: In our view, it is useful to distinguish here between two discrete aspects of the right to make full answer and defence. One aspect is the

right of the accused to have before him or her the full “case to meet” before answering the Crown’s case by adducing defence evidence. The right to know the case to meet is long settled, and it is satisfied once the Crown has called all of its evidence, because at that pointall of the facts that are relied upon as probative of guilt are available to the accused in order that he or she may make a case inreply: see R. v. Krause, (SCC), [1986] 2 S.C.R. 466, at p. 473, per McIntyre J.; John Sopinka, Sidney Lederman andAlan Bryant, The Law of Evidence in Canada (1992), at p. 880.

This aspect of the right to make full answer and defence has links withthe right to full disclosure and the right to engage in a full cross-examination of Crown witnesses, and is concerned with the rightto respond, in a very direct and particularized form, to the Crown’s evidence. Inherent in this aspect of the right to make full answer anddefence is the requirement that the Crown act prior to the defence’s response.

A second and broader aspect of the right to make full answer and defence, which might be understood as encompassing the first aspect,is the right of an accused person to defend himself or herself against all of the state’s efforts to achieve a conviction. The Crown is notentitled to engage in activities aimed at convicting an accused unless that accused is permitted to defend against those state acts.

However, it is not always the case that defending against the Crown’s efforts to convict will necessarily imply answering words alreadyspoken or deeds already engaged in by the Crown... [50] It is important not to lose sight, when deciding whether particulars should be ordered under s.587 of the Criminal Code, thatan accused’s right to make full answer and defence be properly respected as one of the guardians of the presumption of innocence.

Theright to timely and full disclosure, as an integral aspect of the right to full answer and defence, is rendered ineffective where - although anaccused is in possession of the fruits of the investigation by reason of the Crown’s disclosure - an accused is unable to determine thecase to meet because of the generic nature of the counts. In such circumstances, the provision of formal particulars by the prosecutionserves as an important adjunct to the right to make full answer and defence. The particulars serve to reasonably inform an accused as todetails of the criminal offence he/she is said to have committed.

Agreeably, and as incidental, the provision of the crown’s particularsmight also usefully serve to assist the trial judge in the making of “proper, adequate and expeditious rulings on the admissibility orotherwise of the evidence sought to be adduced”: R v Cominco Ltd, (1978) (AB KB), 91 DLR (3d) 541 at p 546. Why are Particulars Required Here? [51] The frequent difficulty for an accused charged with perjury arises when an attempt is made to ascertain what specifically theCrown alleges to be the “false statement” at issue under s.131(1) of the Criminal Code. This

section provides as follows: ...every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made beforehim a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that thestatement is false. [52] From the perspective of an accused who seeks to understand what it is that the prosecution alleges that he/she has done, in thecontext of a perjury prosecution, it is relevant as a measure of the difficulty of answering that essential question, to acknowledge thats.118 of the Criminal Code defines “evidence” or “statement” (for the purposes of offences under

Part IV of the Criminal Code) verybroadly, as “an assertion of fact, opinion, belief or knowledge, whether material or not and whether admissible or not”. [53] Is also worth acknowledging that s.131 does not require the false testimony to successfully mislead the Court, and is in thatsense an inchoate crime, because the Crown need only prove an attempt to mislead (even if unsuccessful).

Again, from an accused’sperspective, this further complicates the accused’s efforts at determining what exactly the Crown relies upon as constituting theunderlying elements of the offence, i.e., what is the false statement? [54] To further compound an accused’s difficulty in discovering what it is that he or she is said to have done, referencing theSupreme Court of Canada in Wolf, a perjury conviction may be based upon the accused’s dishonest failure to recollect.

The SupremeCourt, in the circumstances of that appeal, considered an appellant who had been assaulted by two men, and following the assault,described to a police officer the details of what occurred. The next day the appellant dictated a statement to two detectives, once again,describing the assault. Afterwards, the appellant read over and signed each page. The two accused were charged as a result of theappellant’s statement with wounding with intent. Later, when called at the preliminary inquiry, the appellant said that he could not recallthe events described in his statement.

A charge of perjury was laid against the appellant. At trial, the appellant’s counsel argued that amere failure of memory, even if dishonest, did not amount to an intention to mislead because the appellant did not testify to any falsepositive evidence. Laskin CJC rejected this argument and at p. 114 held: The law of perjury, a necessary sanction in the administration of justice, would become toothless if a calculated lapse of memory wasenough to defeat it. The quest for truth, so far as a court can discern it from evidence, can be easily frustrated by false negative evidenceas by false positive evidence.

In this sense the falsity has positive consequences in either event. [55] Finally, and again as a measure of the difficulty an accused might have in attempting to determine what the prosecutionsalleges he has done (in the context of a generic perjury charge) - a literally true statement may lend itself to a perjury conviction ifuttered knowing that it would be taken in a misleading way: Farris v The Queen.

Are the Accused in Possession of Sufficient Information so as toObviate the Need for Particulars? [56] The Crown argues, for the purposes of the upcoming trial, that it has done all that it can reasonably be required to do byhighlighting the passages of testimony excerpted from the viva voce testimony of Mr. Carter and Mr. Walton from the 2014 parentingtrial. Beyond highlighting the transcript, the Crown identifies a variety of supplementary material, including the 2,301-page PIMS report(complete with a police investigator’s notations) as adequately answering the question of what the Crown alleges to be the false

statements of both men. Beyond this material, the Crown identifies the judicial fact-finding decision from the criminal harassment trial, the evidence taken during the criminal harassment trial, and the Crown’s letter of January 4, 2019 as providing sufficient information to Mr. Carter and Mr. Walton to make full answer and defence. [ 57 ] In the present circumstances, I do not agree with this submission made by the Crown. [ 58 ] While all of these sources of information may well serve to narrow the scope of what Mr.

Greenspan aptly referred to as a “scavenger hunt”, it is important to remember that determining the exact loci of the Crown’s perjury allegations is next to impossible without sufficient assistance. [ 59 ] I say this because I agree with Defence that the excerpts highlighted by the Crown reveal a multiple of possible permutations as to what may or may not be the false statements alleged by the Crown to constitute the basis of a perjury conviction (the actus reus) . [ 60 ] Indeed, the difficulties associated with identifying the underlying factual transactions with an inchoate crime like perjury are such that I accept the submissions made by both Mr.

Carter and Mr. Walton to the effect that both men are unable to determine what exactly the Crown alleges constitute the underlying false statements. Perjury, in this sense, is unlike most criminal offences where the “what” of the alleged criminality is exceedingly obvious from the disclosure provided by the Crown. [ 61 ] For example, an accused facing a murder charge in circumstances of an individual who was stabbed to death in an alleyway is generally not left wondering what the Crown alleges that he did either as a principal or a party.

Similarly, an individual charged with sexual assault most often can easily ascertain from the Crown’s disclosure what the Crown alleges he did. [ 62 ] An individual facing a perjury charge is very often in a different position. This is because even a few simple sentences will often contain a multitude of assertions as to fact, opinion, belief, or knowledge, that the Crown may, or may not, allege constitute the underlying false statements for the purposes of the prosecution.

As I earlier noted, the Crown may not allege that every false statement was uttered with the intention to mislead, or conversely, the Crown may suggest that literally true statements were uttered with the requisite intention to mislead. [ 63 ] Some examples, might best illustrate the difficulty, referring to the portions of Mr. Carter’s trial testimony highlighted at pp 131 -132: 1. The Crown highlighted as follows: Q ...what was the arrangement between and you (sic) Mr. Walton? Can you detail that?

A He was engaged to help protect me, give me advice on that, and do certain things on that, and see what he could find out about Ms. Taylor’s past. Q ...And did you and Mr. Walton get into details of how he would find out these things about Ms. Taylor? A Yeah. He said, Ken. He said, This is how it’s going to work. I’ll bring you information. You don’t ask how I got it. I said fine. Q Now, there’s been a suggestion by Ms. Taylor that were involved in or instructing Mr. Walton to provide money to some of her acquaintances to get information about her. What do you say about that?

A The deal with Steve which – our entire time together was, Ken, I’m going to give you advice on protection and I’m also going to bring you information, and you don’t ask how I got it. 2. As counsel for Mr. Carter identities, the foregoing highlighted questions and answers might involve a number of discrete false statements, but Mr. Carter does not know if the Crown alleges he made a false statement related to: i. His belief regarding the purpose for which Mr. Walton was engaged; ii. The fact of what Mr. Walton said to him at their initial meeting; iii.

The fact that throughout their engagement what was said to him at the initial meeting continued to be their arrangement; iv. The fact that this arrangement extended to Mr. Carter being “involved in or instructing” Mr. Walton to provide money to acquaintances of Ms. Taylor; or v. Some combination of the above. 3. Mr. Carter also provided an example of the difficulty created in a much shorter answer given by Mr. Carter as follows: A... So that would have been August 8 th , 9 th , 10 th . That would have been Wednesday, Thursday, Friday. Ms. Taylor was not responding.

So—and in addition to that during those couple days, Ms. Walton very quickly found out some scary information about Ms. Taylor, so I went into hiding. 4. With respect to this short answer, counsel pointed out the following possibilities as to potential false statements: i. The fact of the states that this event occurred; ii. His knowledge that Ms. Taylor hadn’t responded, or that someone had not tried to contact her;

iii. The fact that Mr. Carter had not learned information from Mr. Walton regarding Ms. Taylor; iv. His belief regarding this information; v. The fact that this information had caused him to go “into hiding”; vi. The fact that he went into hiding; or, vii. Some combination of these passages. [64] Having exampled the difficulties faced by Mr. Carter in these highlighted passages, it is unnecessary to repeat this exercisewith the remaining passages highlighted by the Crown in relation to Mr. Carter or the passages similarly highlighted in relation to Mr.Walton. [65] The inability of Mr. Carter and Mr.

Walton to appropriately identify what it is that the Crown alleges to be the falsestatements negatively impacts upon the ability of both men to make full answer and defence.

As Defence counsel argue, the ability toanswer this simple question is critical to the ability of Defence to determine what witnesses must be sought out by the Defence, whatevidence must be located, and what evidence of a testimonial or documentary nature might be used by the accused to confirm thetruthfulness of any given statement. [66] The Crown argues that the totality of the disclosure makes it obvious as to what portions of the accused’s testimony is false.In particular, the Crown referred to the PIMS report. [67] I have not found this submission from the Crown to be particularly helpful.

The PIMS report and the disclosure were notplaced before me, and I did not find the materials that were placed before me to be particularly helpful or illuminating as to the specificstatements that the Crown alleges to be false. [68] I see nothing in the information provided to Defence by way of disclosure, or otherwise, that obviates the need forparticularization of the alleged false statements.

Fulsome Crown disclosure may in most cases obviate the need for particulars, butdisclosure is never a substitute for particulars in those situations where some particularization is necessary for the purpose of making fullanswer and defence.

Is the Present Application Simply an Inveigled Attempt by theDefence to have the Crown Particularize its Theory? [69] As I earlier summarized the Crown’s argument, a central feature of the Crown’s resistance to the current application, arisesfrom the Crown’s concern that the Defence is improperly attempting to conscript the Crown into advancing its theory as to liability, or asan improper attempt to have the Crown reveal its proof.

The Crown argues that the present application, made under the guise of a requestfor particularization, is inappropriate. [70] Once again, in these circumstances, I do not agree. [71] The Crown and the Defence do not disagree as to the relevant legal principles, but do disagree in the application of theprinciples. Both agree, that it is necessary for me to distinguish between “particulars” as they relate to the essential elements of theoffence charged, and the “theory of the Crown as to liability”.

Particulars will not be ordered for the purpose of requiring the Crown toprove “its theory”, and thereby limiting the scope of the accused’s liability for the offence: R v Dalton, (NL SC),[1999] NJ No 388 (NLSC). [72] Dalton, itself, illustrates the distinction between the “elements of the offence charged” and the Crown’s “theory” as toliability. The indictment in Dalton alleged simply that the accused committed second degree murder on the person of Mary BrendaDalton. The “theory” of the Crown was that the accused caused her death by either choking or smothering her.

The accused applied forparticulars such that the indictment would be amended to include the “theory of the Crown” that the cause of death was due to eithermanual strangulation or smothering. [73] In refusing the application of the accused for particulars, Halley J held that the application for “particulars” before him was animproper attempt by defence to limit the prosecution to a particular theory of liability. As Justice Halley identified, it was alwayspossible another cause of death might emerge at trial.

The accused, while aware of the Crown’s present theory of liability, could notproperly seek a judicially imposed limitation on the Crown’s prosecution of the case such as to require the Crown to prove that eitherchoking or smothering was causative of death. [74] In reaching this conclusion, Halley J, referred to R v Cousins, [1997] NJ No 229 (NLCA), an appellate case where theNewfoundland Court of Appeal, which considered an appeal where the “theory” of the prosecution was that Cousins was solelyresponsible for the murder of Squires.

On the basis of that theory, the trial judge decided that he need not instruct the jury on thealternative basis that Cousins could also be convicted on the basis that he aided another to kill Squires. Gushue CJ distinguished betweenthe essential elements of the charge of murder and the theory of the prosecution as to liability at paragraph 23 as follows: The trial judge's instructions were incomplete and obviously incorrect in law. There was evidence before the jury which, if accepted,could lead them to conclude that either the respondent, aided by Allen, or the respondent himself, murdered Marvin Squires.

Withrespect, whether or not the provisions of s. 21 were raised by the prosecution, it was incumbent on the judge to explain to and direct thejury as to the law and, specifically, the law as it related to the facts of this case and the possible guilt of the accused of the offence ofmurder. The fact that the theory of the Crown was that the respondent was solely responsible for the murder of Marvin Squires could not

limit the legal definition of murder in the Criminal Code - which definition, given the nature of the evidence, had to include theprovisions of s. 21. [75] The Crown cited many other authorities before me to similar effect. [76] In Groot, the trial judge acquitted the accused because the prosecution did not prove its theory. The acquittal was set aside bythe Ontario Court of Appeal and a conviction was entered instead for common assault. McMontry CJ observed that the sole issue at trialwas whether the injuries were accidental or deliberate.

The trial judge, having found that the respondent committed an unjustifiedassault, was not justified in acquitting the accused on the basis that his finding of a single blow was contrary to the Crown’s theory thatmultiple blows were inflicted upon the complainant. [77] In R v Thatcher, (SCC), [1987] 1 SCR 652 at para 11, CJ Dickson noted that, before trial, defence counselattempted to have the Crown particularize the “means by which the accused is alleged to have caused the death of JoAnn Kay Wilson”.The trial judge held that Defence counsel improperly wished to restrict the Crown to the theory that Thatcher either killed himself, or thathe hired someone else to do it.

In refusing the particulars application, the trial judge relied upon the judgment of Martin JA in R vGovedarov, Popovic and Askov, (ON CA), [1974] OJ No 1837 at pp 269-270 (particularizing the underlying offencethat would establish constructive murder) as follows: The indictment had been preceded by a preliminary hearing lasting several days.

Clearly, the purpose of the application for particularswas not to require the prosecution to provide the accused with additional details with respect to matters referred to in the indictment inorder that the accused might be more fully informed of the act or omission charged against them but was to restrict the prosecution toreliance on a part only of the definition of murder contained in the Criminal Code. [78] In Violette, the accused sought, in the context of a conspiracy allegation, to have the prosecution particularize whether theoffences occurred “for the benefit of”, “at the direction of”, “or in association” with the specified criminal organization.

That request wassimilarly denied. [79] I should acknowledge, parenthetically, that the jurisprudence does not support the conclusion in every case that the Crown cannever be held to a particular theory of liability. In some cases, particularly because of a late change in the theory advanced by the Crown,a court may find that adjudicative unfairness arises that significantly impairs the right to make full answer and defence.

For example, inR v Ranger, (ON CA), [2003] OJ No 3479 (ONCA), the Crown’s theory as advanced before the jury was thatRanger and another man were alone in a home at the time of the murder of two sisters, and that one or both had killed one or both sisters.Ranger’s defence was based, in part, on alibi evidence (i.e. that he was not present in the residence at the time of the killings). The trialjudge instructed the jury that they could convict Ranger even if he was not in the home at the time of killings if they were satisfied thathe aided or abetted the other man.

The Ontario Court of Appeal held that this additional theory as to liability in the circumstances wasunfair as it had the effect of undermining Ranger’s ability to make full answer and defence.

To prevent adjudicative unfairness, the trialjudge was obligated in the circumstances to have alerted defence counsel that he planned on instructing the jury as to party liabilitybefore defence counsel was called upon to address to the jury. [80] In McCune, the Crown in its opening to the jury suggested that it would prove manslaughter by reason of an unlawful actassault, which the Crown later changed to a theory based upon criminal negligence – a theory that was entirely unrelated to the originalunlawful act assault theory.

The defence claimed prejudice by reason of the late disclosure of the Crown’s alternate theory. The BritishColumbia Court of Appeal ordered a new trial because the Court of Appeal was of the view that the accused was deprived of his right tomake full answer and defence arising from the Crown’s late change in theory. [81] In my view, considering the legal authorities, the Crown’s present complaint that the Defence is inappropriately seeking toconscript the Crown’s theory as to liability, or the means by which the Crown intends to prove its case, is misplaced. What is sought,instead, by both Mr. Carter and Mr.

Walton is particularization of an essential element of the charge (the actus reus of the offence, i.e.,what the Crown alleges are the false statements uttered by the accused) as opposed to the Crown’s theory of liability. [82] The particulars order sought by both Mr. Carter and Mr. Walton do not confine the Crown to a particular theory of liability.Both Mr. Carter and Mr. Walton do ask me to have the Crown reveal its theory as to liability, nor do they ask that the Crownparticularize the evidence that it will call.

Instead, both accused appropriately seek to have the Crown identify which statements, inparticular, are alleged by the Crown to constitute the actus reus of the offence before the Court. [83] The applications of Mr. Carter and Mr. Walton are therefore unlike the application of Mr. Thatcher seeking to limit theCrown to a particular path to liability, whether as shooter or as someone who contracted the killing.

Nor, is the present application likethat in Violette, where the accused sought to limit the Crown to a particular theory based upon “the benefit of”, “the direction of” “or inassociation” with the specified criminal organization. [84] To be clear, based upon the relevant authorities, I agree with the Crown that the purpose of ordering particulars cannot be torestrict the legal basis of the accused’s potential criminal liability, either as a particular mode of committing an offence, or as an attemptto restrict the Crown from seeking a conviction either as a principal or a party.

I also agree with the Crown that an application forparticulars should not be granted where the purpose of it is an attempt to restrict the Crown to rely upon only a part of the definition of acriminal offence. [85] The application of Mr. Carter and Mr. Walton, I repeat, is not of this prohibited nature. Instead, I am satisfied that particularsmust be ordered to ensure that sufficient information is provided to both accused to safeguard the right to make full answer and defence.This, to my mind, does not fetter the prosecution in the conduct of its case.

It is a matter of answering the essential question of “what” itis that the Crown alleges both men have done. As Mr. Greenspan ably put in his oral argument, “this is not a question of the route toliability, it is a question of what the applicant is alleged to be liable for”. [86] Mr. Carter and Mr. Walton do not seek particularization of the mode or ways in which the Crown alleges that they committedperjury, nor do they seek particularization of the Crown’s proof. I agree that both such considerations would be inappropriate. That is not

what is sought here, and it is not what I am ordering by way of particulars under s.587 of the Criminal Code .

Should I Decline to Order Particulars Because the Defence Applications are Dilatory? [ 87 ] I will not accede to this argument. [ 88 ] The Crown argued that given the history of this matter and particularly the dilatory manner in which the present application has been pursued, that I should infer that there is an absence of true necessity in the present application and that particularization is therefore not required. [ 89 ] While I agree with the Crown that neither accused has pursued this application with any particular dispatch, I am not prepared to conclude that the present applications are disingenuous, or that the accused do not view this particulars application as crucial for the purpose of making full answer and defence. [ 90 ] I say this for two reasons.

First, it is plain to me as to why this application is being pursued and why it is necessary. At the risk of being overly repetitive, it is as simple as Mr. Carter and Mr. Walton seeking the answer to the critical question of what it is that the Crown alleges they have done, i.e. what false statements does the Crown allege that they made while under oath or solemn declaration. [ 91 ] While the accused have not been diligent, and although to some extent this is explained by the focus of counsel after severance upon the criminal harassment trial, and in Mr.

Carter’s case his change in counsel, I am not prepared to hold that the right of the accused to make full answer and defence can be sacrificed on the altar of expediency. I note that the scheduled perjury trial is several months away, and the Crown should have no difficulty in providing the requested particulars. Conclusion [ 92 ] I am satisfied that this is an appropriate case for me to exercise my discretion to order that the Crown provide particulars pursuant to s.587(1) (

a) of the Criminal Code to ensure a fair trial. I say this because I have concluded that the underlying factual transactions are not sufficiently delineated such as to permit meaningful full answer and defence . The prosecution, within 60 days of these reasons, shall provide particulars to counsel for Mr. Carter and Mr. Walton, and file those particulars with the Court. The particulars ordered are as follows: 1. Setting out the specific false statements that the Crown relies upon based upon the excerpts from the transcript of the March 2014 parenting trial; 2. Particularizing, in each case, the part(

s) of each alleged individualized statement that are said by the prosecution to false, and knowingly uttered by either Mr. Carter or Mr. Walton with the requisite intention to mislead; 3. In all instances, the Crown need not identify the evidence that it will adduce in an attempt to prove a false statement was knowingly made with the requisite intention to mislead, or the evidence it will adduce in an attempt to prove that a true statement was knowingly uttered with intention to mislead; and 4.

In all instances, the Crown is not required to particularize its “theory” as to liability, and this decision should not be read as limiting either accused’s potential liability for the perjury offence. While the Crown is bound to prove formal particulars (subject to the surplusage rule), it is not obliged to prove a specific theory of its case. Heard on the 7 th day of May, 2021. Dated at the City of Calgary, Alberta this 1 st day of June, 2021. D.A. Labrenz J.C.Q.B.A. Appearances: Katherine Love and Heather Morris

Alberta Crown Prosecution Service for the Crown Brian H. Greenspan and Naomi M. Lutes Greenspan Humphrey Weinstein LLP Counsel for Kenneth Carter Alain Hepner, QC Ross Hepner Counsel for Stephen Walton _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice D.A. Labrenz _______________________________________________________ Paragraph 44- Citation in paragraph revised to read R v Groot, (1998) (ON CA), 41 OR (3d) 280 (ONCA)