Her Majesty the Queen - v. -, 2011 SKPC 13

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 013 Date: January 18, 2011 Information: 24292040 Location: Moosomin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lee Charron Appearing: Mr. Barrie Stricker For the Crown Mr. Gary Moore For the Accused DECISION ON CHARTER APPLICATION R. GREEN , J [ 1 ] Mr. Charron is charged with operating or with being in the care or control of a vehicle while impaired by alcohol on August 25, 2009, at Rocanville.

Count number two on the information - operating or being in care or control of a vehicle over .08 - was dismissed by me upon the defence application for a nonsuit. [ 2 ] During the testimony of Cst. Pshyk, the final Crown witness, an issue arose about whether the defence had been provided with full disclosure by the Crown. As a result, Mr. Charron then applied to the Court, pursuant to s. 24(1) and 24(2) of the Charter , for a variety of remedies, which include a stay of the impaired driving charge, an order for a mistrial on that count, a direction that Mr.

Moore be allowed to further cross-examine Crown witnesses and an order excluding evidence.

In making this application, the defence asserts a breach of Mr. Charron’s right to make full answer and defence under s. 7 of the Charteras a result of a lack of full disclosure. [3] Upon Mr. Charron being charged Mr. Moore requested and received disclosure from Cst. Granrude of the MoosominRCMP, who at that time was acting as the agent of the Crown. That disclosure included two Intoxilyzer 5000C Operational Checkseets(Exhibit D-1 and D-2). Both of these sheets, as received by Mr. Moore, did not have a

section entitled Observations on Subject or asection for the technician’s name. These sections, which appear at the bottom of the original documents (Exhibit P-2 and P-3), were cutoff in the process of photocopying. Mr. Stricker, the prosecutor, as well received the cut off versions of the Checksheets in hisinformation package from the police, but had access to the original Checksheets at the trial and tendered one original as Exhibit P-2during the re-direct examination of Cst. Pshyk. [4] The two areas of testimony at the trial which are relevant to this defence application are:

(1) During the Crown’s case, Cst. Granrude testified about his observations of Mr. Charron after his arrest and at the RCMPdetachment; and

(2) Later in the Crown’s case, the Intoxilyzer technician Cst. Pshyk testified about his observations of Mr. Charron at the scene of thestop and, subsequently, at the detachment. On direct examination Cst. Pshyk made no reference to slurred speech by Mr. Charron. Oncross-examination, when that was pointed out to him by Mr. Moore, Cst. Pshyk said he could not recall if Mr. Charron had slurredspeech. On redirect examination, when shown his original Intoxilyzer 5000C Operational Checksheet by the prosecutor (Exhibit P-2),Cst.

Pshyk responded to the prosecutor’s question “Does it list or not list slurred speech?” by saying “It says slurred speech”. [5] In his notice under the Constitutional Questions Act Mr. Moores asserts that Mr. Charron’s rights under s. 7 had beeninfringed by a lack of full disclosure. He said this deficiency came about because:

(1) Cst. Granrude’s notes and General Occurrence Report provided to the defence did not disclose observations about Mr. Charron’scondition at the detachment that Cst. Granrude described in his testimony at the trial; and

(2) The Operational Checksheet provided to the defence (Exhibit D-1) did not contain notations under the heading of Observations onSubject that included the words “slurred speech” and “two beer started around 2100", as was contained in the original Checksheet whichwas filed by the Crown as Exhibit P-2 during the re-direct examination of Cst. Pshyk. [6] Section 24(1) of the Charter allows a person whose rights under the Charter have been infringed to apply to a court to obtain aremedy which the court considers appropriate and just in the circumstances.

Section 7 of the Charter protects Mr. Charron’s right to bemake full answer and defence. In order for him to do so, the Crown must provide an accused person with complete and timelydisclosure (R. v. Bjelland, 2009 SCC 38 , [2009] 2 S.C.R. 651, at para. 20). A failure to provide full disclosure, however, doesnot necessary constitute a violation of s. 7, as an accused person must generally show “actual prejudice” of his ability to make full answerand defence in order to be entitled to a remedy under s. 24(1) of the Charter (R. v.

O’Connor, (SCC), [1995] 4 S.C.R.411 at para. 74). [7] Dealing first with the disclosure concern regarding Cst. Granrude, I am satisfied, based on this officer’s testimony, that hedid not make any notation in his notes or in his General Occurrence Report about his observations of Mr. Charron’s condition at thedetachment. As a result, I am not satisfied there was any failure to provide disclosure, or any breach of Mr. Charron’s s. 7 rights, relatedto this concern. [8] The second disclosure concern, however, related to the undisclosed bottom portion of the Checksheet, stands in a differentlight. In this trial, Mr.

Moore did not know the full content of the Operational Checksheet until after he had completed his cross-examination of the author of the document, Cst. Pshyk. Had he known of the reference to slurred speech in that original document, underthe heading Observations on Subject, I am satisfied that Mr. Moore would not have challenged Cst. Pshyk on his failure to made mention

that Mr. Charron’s speech was slurred. That is because, had he known the full contents of the original check sheet, he would haveknown that such a question would have inevitably drawn the re-direct examination which occurred in this case. In the context of howand when the failure in disclosure came to light in this trial, I am satisfied that Mr. Charron suffered actual prejudice in his right to makefull answer and defence. As a result, I am satisfied on a balance of probabilities that his rights under s. 7 were infringed. [9] Mr.

Moore acknowledged in argument, despite its mention in his notice, that this was not one of the clearest of cases thatwould justify a judicial stay of the impaired driving charge (see L'Heureux-Dube J. at page 37 and 38 of R. v. O’Connor (1995), (SCC), 103 C.C.C. (3d) 1 (S.C.C.)). I agree that this is not such a case to justify a judicial stay, nor do I find a mistrial to bethe appropriate remedy. [10] In Bjelland (supra at para. 24), the Supreme Court stated that a judge should only exclude evidence for late disclosure, unders. 24(1), “in exceptional cases: (

a) where the late disclosure renders the trial process unfair and this unfairness cannot be remediedthrough an adjournment and disclosure order or (

b) where exclusion is necessary to maintain the integrity of the justice system”. [11] This is not a case where I find bad faith was the cause of the lack of disclosure on the part of either Cst. Granrude or Mr.Stricker. I am satisfied that the officer inadvertently failed to copy the full extent of the Operational Chechsheets, and that theincomplete copy went to both the defence lawyer and the Crown prosecutor. That said, I am further satisfied that the prosecutor referredto the original Checksheet during Cst.

Pshyk’s re-direct testimony and introduced the Checksheet into evidence (Exhibit P-2) withouttaking sufficient time and care to ensure that the original was what he had in his file and what had been disclosed to the defence. [12] Taken together, what occurred here is in my view an exceptional case. The lack of full disclosure on what was a critical pointin this case, and the time at which this failure was discovered, rendered this trial to be unfair in a way that I am not satisfied can beremedied through an adjournment and a disclosure order.

The evidence that resulted from this breach was of questionable probity, asCst. Pshyk never did testify to recalling slurred speech by Mr. Charron at the detachment, but only that his Checksheet referred to this. Nevertheless, in effect, a question that never would have been asked with full disclosure was asked, and the response by the Crownbecame part of the evidence at this trial. As a result, I view the appropriate remedy to be exclusion of the evidence which flowed fromthe breach of Mr.

Charron’s right to make full answer and defence under s. 7. [13] I order, pursuant to s. 24(1), that the Operational Checksheets (Exhibits P-2, P-3, D1 and D2) and any reference to Exhibit P-2in the re-direct examination of Cst. Psych be excluded from evidence at this trial. [14] Given my decision on the application under s. 24(1), there is no need to consider the s. 24(2) application. As the Crown hascompleted its case, we will now proceed with the defence case, as Mr. Moore has indicated that defence intends to call evidence at thistrial. R. Green, J