Her Majesty the Queen - v. -, 2015 SKPC 131

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 131 Date: October 20, 2015 Information: 43793231 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gary Lynn Kvale (No. 2) Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] Mr. Nidesh, on behalf of Gary Lynn Kvale, served a Charter application on the Crown dated June 29, 2015. It was filed in Court on August 20, 2015.

It requested the following relief: Application is hereby made pursuant to s. 7 of the Charter of Rights and Freedoms to enable full answer and defence for disclosure and production of (1) a copy of the designation as a qualified technician for Ryan George Forbes for the Intox EC/IR II; (2) a copy of the certification for the operation of the Intox EC/IR II for Ryan George Forbes; (3) a copy of the annual proficiency examination and annual certification of Ryan George Forbes for the operation of Intox EC/IR II.

BACKGROUND [2] First of all, I think some background is important on this case and as such, I have reviewed the Court record which reveals asfollows. [3] Mr. Kvale was charged November 29, 2014. His first Court appearance was December 15, 2014. Mr. Nidesh appeared withhim on the rest of the occasions; namely, December 16, 18 and 22, 2014, January 21 and 27, February 18 and 25, and March 2, 2015. Each time the matter was adjourned in docket court. [4] On March 9, 2015, not guilty pleas were entered to both counts on behalf of Mr. Kvale. The trial was held April 6, 2015. Mr. Kvale’s counsel served and filed a Charter application alleging breaches under s. 10(

a) and 10(

b) of the Charter. The matter wasadjourned to May 11, 2015 for my decision. [5] On May 11, I gave my decision cited at 2015 SKPC 60. I did not find any Charter violation. It is important to note that atthe beginning of the trial, both counsel agreed as to the procedure.

I quote paragraph 2 of my decision: By agreement all of the Crown’s evidence was entered on a Charter voir dire with the understanding that all admissible evidence on thevoir dire would be evidence on the trial proper. [6] The second count of impaired operation of a motor vehicle was stayed by the Crown. [7] At the request of defence counsel, the matter has been adjourned as follows: May 25, June 2, 8, 9, 25 and 29, 2015. At thattime, Mr. Nidesh gave a verbal indication that he was requesting the qualifications of the technician and related information.

The matterwas again adjourned July 13 and 21, and finally on August 20, the above mentioned Charter application was filed in Court and a briefargument by each counsel was made. ANALYSIS [8] The first problem with this application is the stage or timing of the said application. In R v Ginter, 2011 SKPC 83, MatsallaJ. at paragraph 6 made reference to the case of R v Pelletier, (SK CA), [1995] SJ No 115, in the following context: Our Court of Appeal in R. v. Pelletier, (SK CA), [1995] S.J.

No. 115, at paragraph 17, reiterated that the Crown isentitled to know when it tenders evidence whether the defence takes objection to the evidence and it should be so aware before its case iscomplete. The Court, at paragraph 20, went on to state that there is the “need for some element of discipline” respecting section 24(2)applications.

To that end, Finlayson J.A. in Kutynec said this at paragraph 19 respecting the conduct of a trial in orderly fashion: 19. ...the trial judge is entitled to insist, and should insist, that defence counsel state his or her position on possible Charter issueseither before or at the outset of the trial. All issues of notice to the Crown and the sufficiency of disclosure can be sorted out at thattime.

Failing timely notice, a trial judge, having taken into account all relevant circumstances, is entitled to refuse to entertain anapplication to assert a Charter remedy. [9] The Crown says this is a fishing expedition only and as well it has occurred after the Crown has closed its case. Bothcounsel rely on the decision of Kalmakoff J. (as he then was) in R v Worden, 2014 SKPC 143 [Worden].

[10] In R v Mellquist, 2014 SKPC 48, my colleague Judge Kovatch gave a very thorough decision with respect to the requirementsof a proper Charter notice. In particular, at paragraph 6, he quotes R v Dwernychuk, [1992] ABCA 316 as follows: Fair and reasonable notice to the Crown and to the court will better enable the judge to carry out his constitutional duty, mandated by s.24(2), to have regard to “all the circumstances” when he or she decides whether the admission of the evidence would bring theadministration of justice into disrepute.

The Crown cannot see to it that all the relevant circumstances which are within the evidentiarycontrol of the Crown are placed in evidence before the court, if the Crown is not made aware in a timely manner that a Charter issue willbe raised. If the Crown is thus unable to marshall evidence which, given the opportunity, it would place before the court, the judge isrequired to reach his or her decision without knowing what all the circumstances are which it would be within the Crown's capability ofplacing before the court.

If such timely notice is not given, and if it is clear that the defence has lain in ambush when it might have giventimely notice, those are circumstances which in themselves might frustrate the court's duty to have regard to “all the circumstances” andmight lead the court to conclude that the s. 24(2) application should be dismissed without consideration of its merits.

If the merits wereconsidered only on the basis of those selective circumstances which are presented by the defence, and by the Crown when it is forced, inthe absence of notice, to scramble to meet what is presented by the defence, the judge would be asked to exclude the evidence withouthaving regard to “all the circumstances”. That would amount to asking the judge to exercise a constitutional power in a manner whichfalls short of what s. 24(2) contemplates. ...

Moreover, the onus in the case of most allegations that a Charter right has been infringed being upon the defence, there is an element ofunfairness to the Crown if the court allows the defence to lie in ambush and thus requires the Crown to anticipate every possibleinfringement. The Crown would be encouraged to call evidence or have on “standby” Crown witnesses, usually police officers, whomight be able to give testimony concerning possible issues, which when the trial concludes turn out to be non-issues. That is surely not tobe encouraged.

Moreover, it would be, in the result, akin to placing the onus upon the Crown when, in law, it should not be. (Emphasis Added) [11] When a matter is set down for trial, the Crown and the Court presumes that the parties are ready to proceed. Mr. Nidesh hasbeen counsel since this matter came to Court. I can only assume he has had disclosure as there was no previous applications fordisclosure.

The law has not changed and the presumptions of identity under s. 258 remains the same. [12] Judge Kalmakoff (as he then was) discusses the general principles relating to disclosure in R v Worden, 2014 SKPC 143,where at paragraph 38, he states: Generally speaking, the Crown has a duty to disclose relevant information in its possession to a person charged with an offence. This iswell established at common law, and is constitutionally entrenched in the right to make full answer and defence under the Charter: R. v.McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (McNeil); R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326 (Stinchcombe); R. v.Spackman, 2012 ONCA 905. [13] There has been no mention until very recently that the Crown failed to make disclosure to the defence. The defence agreed onthe procedure at the outset of the voir dire and as a result, the Crown closed its case. I gave my ruling May 11 and applied all evidenceon the voir dire to the trial proper. I am not prepared and indeed it would be unfair to the Crown to allow this application at this stage. Therefore, the defence application is denied.

A new date will be set to conclude the trial. [14] While I have said this decision is not about the merits of the application but about the timing and procedure, quite frankly thedefence would have to do more to convince me that there is some basis for this disclosure application. In my view, the defence has notestablished the appropriate evidentiary basis for requesting the disclosure at this stage of this proceeding. It would appear to besomewhat of a fishing expedition. Mr. Nidesh refers to the fact he needs this information to argue that the presumption of identity should not apply.

This argument of course was available to Mr. Nidesh’s client right from the start. TheCrown must prove the case beyond a reasonable doubt.

[ 15 ] The application is denied. M. Gordon, J