Present: La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Evidence ‑‑ Duty to disclose ‑‑ Crown producing copy of statement and transcript of tape and explaining absence of originals ‑‑ No misconduct on part of Crown revealed ‑‑ Crown's obligation to produce fulfilled ‑‑ Trial judge erring in ordering stay of proceedings.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 11 ( b ) .
APPEAL from a judgment of the Alberta Court of Appeal (1994), 149 A.R. 167, 63 W.A.C. 167, 88 C.C.C. (3d) 557, 30 C.R. (4th) 119, allowing the Crown's appeal from a stay of proceedings granted by Waite J. Appeal dismissed.
Ross G. Mitchell, for the appellant.
Earl C. Wilson, Q.C., for the respondent.
//Sopinka J.//
The judgment of the Court was delivered orally by
1 Sopinka J. ‑‑ In this appeal as of right, we agree with the Court of Appeal that the trial judge erred in ordering a stay of proceedings in the circumstances. The Crown produced a copy of the statement and a transcript of the tape and explained the absence of the originals. That explanation did not reveal any misconduct on the part of the Crown. In our opinion, the Crown had fulfilled its obligation to produce.
2 The Crown can only produce what is in its possession or control. There is no absolute right to have originals produced. If the Crown has the originals of documents which ought to be produced, it should either produce them or allow them to be inspected. If, however, the originals are not available and if they had been in the Crown's possession, then it should explain their absence. If the explanation is satisfactory, the Crown has discharged its obligation unless the conduct which resulted in the absence or loss of the original is in itself such that it may warrant a remedy under the Canadian Charter of Rights and Freedoms .
3 In our view, no such conduct was established in this case and no basis existed for a stay to be ordered.
4 The appellant also argued in his factum that there was a violation of s. 11( b ) of the Charter but did not pursue this ground orally. We find no merit in it.
5 The appeal is dismissed.
Judgment accordingly.
Solicitor for the appellant: Ross G. Mitchell, Calgary.
Solicitor for the respondent: Earl C. Wilson, Calgary.
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