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RIGHTS OF ACCUSED - To disclosure

Thursday, June 27, 2019 @ 6:32 AM  


Lexis Advance® Quicklaw®
Application by Tyndall for production of documents. The United States sought the extradition of Tyndall on a charge of child luring. He pleaded guilty to a child luring charge in Canada and was now on parole. It was conceded for the application that a search of his home and computer that resulted from law enforcement requests violated his rights under s. 8 of the Charter. He alleged that Canadian law enforcement actors violated his rights under s. 7 by gating him to subject him to successive prosecutions in relation to a single body of evidence. He argued that additional disclosure was necessary for a proper s. 24(2) analysis with respect to the s. 8 breach and to establish the alleged s. 7 breach.

HELD: Application dismissed. Larosa set out the appropriate test for disclosure at the committal stage of the extradition process. There was no justifiable reason to compel the disclosure of the forensic examiner’s notes and reports. The record of the case included particulars of the offence and Tyndall’s alleged involvement. In any event, the notes and reports were too remote from the Charter-infringing state conduct to have any relevance in a s. 24(2) analysis other than as evidence of the seriousness of the offence, which the record of the case adequately summarized. Tyndall did not show that there was a realistic possibility that the manner of the search was relevant to a s. 24(2) analysis. He did not present evidence in support of the application. Spencer and subsequent cases determined that evidence obtained from the use of law enforcement requests should not be excluded. Tyndall did not show an air of reality to his allegation of abuse of process or a sufficient evidentiary foundation to support it. He did not present any evidence to support the inference that the two prosecutions addressed the same or similar jeopardy. There was nothing inherently concerning from the fact of co-operation between two nations. It was logical that the US would not commence extradition proceedings until the Canadian charges were dealt with and the sentence was served.

United States of America v. Tyndall, [2019] A.J. No. 589, Alberta Court of Queen's Bench, N. Dilts J., May 8, 2019. Digest No. TLD-June242019010