R v Taker

R. v. Taker

[1996] O.J. No. 3276
Ontario Court of Justice (Provincial Division) — Bigelow Prov. J. | August 16, 1996

Background

Earl Blair Taker, a police officer, was charged with driving over .08 and impaired driving causing bodily harm after a serious accident on April 2, 1995. The case dragged on for seven months with multiple adjournments while the Crown failed to properly screen the charges or follow their own policies. During a judicial pre-trial, defence counsel Michael Edelson pointed out fatal flaws in the Crown's case — specifically, that police had failed to advise Taker of his right to counsel before taking blood samples.

Crown Attorney George Dzioba reviewed the file and agreed the charges should be withdrawn. He told Edelson the charges would be dropped at the next court appearance on January 2, 1996. But when that date arrived, a different Crown attorney appeared with a memo that wasn't clear. A week later, senior Crown Attorney Adrejs Berzins sent a letter reversing the decision entirely — not only would the original charges proceed, but *new* charges of dangerous driving would be added.

Issues

1. Whether the Crown's conduct in reneging on an undertaking to withdraw charges constituted an abuse of process
2. What remedy would be appropriate given the totality of the Crown's conduct

The Abuse of Process Finding

Judge Bigelow found that while no single Crown action would necessarily constitute abuse of process, taken as a whole, the prosecution's conduct "connoted unfairness." The problems were extensive: the Crown failed to screen charges for seven months despite their own policies requiring early review; they appeared unprepared at the judicial pre-trial; they reneged on a clear undertaking to withdraw charges; they failed to provide proper disclosure (withholding police memos); and they pressured the accused to elect his mode of trial while knowing further investigation was ongoing.

Critically, the court found that Crown Attorney Berzins had misled defence counsel about disclosure, claiming Edelson had "already received disclosure" when Berzins knew that key police memos had never been provided. The court also noted that while Crown policy allowed senior counsel to override withdrawal decisions in rare cases where fulfilling an undertaking would be "unconscionable," the Crown had failed to follow proper procedures.

The Remedy

Rather than staying all proceedings (which would have killed the case entirely), Judge Bigelow crafted a measured remedy under section 24(1) of the Charter. He stayed the new Information containing the dangerous driving charges but allowed the original charges to proceed. He also permitted Taker to re-elect his mode of trial, since he had been forced to make that choice without full disclosure of the case against him.

Key Takeaway

Crown undertakings to withdraw charges are serious commitments that cannot be casually broken, and prosecutorial misconduct can result in charges being stayed even when the Crown has a strong case.

This case shows that courts will scrutinize the totality of Crown conduct, not just individual missteps. When prosecutors fail to follow their own policies, mislead defence counsel about disclosure, and renege on clear undertakings, they risk having their case thrown out regardless of the strength of their evidence.