12/21/2011 09:06 EST | Updated 02/20/2012 05:12 EST

Paxton's lawyer claims Crown's actions not fair play

Dustin Paxton's lawyer says the Crown's late and wilful non-disclosure of evidence during his client's torture trial falls short of decency and fair play.

The accusations were part of the final arguments being heard in a Calgary courtroom Wednesday at a stay of proceedings hearing that could see charges against Paxton suspended.

Paxton is accused of assaulting and confining his former roommate and business partner. The alleged victim cannot be named under a publication ban.

Paxton's lawyer for the hearing, Michael Bates, said the defence team was forced to focus on issues of disclosure rather than the trial itself.

Paxton's defence team argues the 31-year-old man's right to a fair trial was violated because the Crown intentionally withheld evidence and a key witness was given special treatment and coached while giving his testimony.

The defence said it didn't receive hundreds of emails from the Crown until a week after the trial started.

Bates said an email from the alleged victim's psychologist raised concerns about the man's messages that had been posted on Facebook.

The Crown found out about the messages in June, but didn't disclose the information to the defence until October.

The defence claims Paxton was entitled to that information.

Justice Sheilah Martin asked Bates why the defence didn't register a complaint or seek an adjournment if the late disclosure prejudiced the trial.

Bates said it's up to the Crown to explain non-disclosure. He said the Crown provided no explanation, adding no one can criticize the defence for trying to obtain improperly withheld information.

Defence alleges special treatment

The defence argued that Paxton's right to a fair trial was also violated because no information was gathered or shared from a meeting involving prosecutors, police detectives and one of the Crown's key witnesses, Robert Cannon.

Bates said Paxton was entitled to know what was discussed.

Bates said the so-called special treatment of Cannon tainted his testimony, adding Cannon was promised he wouldn't go to jail on some old minor charges in exchange for his testimony. The Crown denies there was a deal.

The defence will continue making final arguments at the stay of proceedings hearing on Thursday morning. The Crown has yet to deliver its final remarks.

Martin said she will rule on the stay application, and a CBC request for video of Paxton's interview with Calgary police, on Jan. 30.

If the stay application is denied, then a verdict on the charges of aggravated assault, sexual assault and unlawful confinement against Paxton will be delivered on Feb. 6.