R. v. A.R.M. (2011), 599 A.R. 343; 643 W.A.C. 343 (CA)
MLB headnote and full text
Temp. Cite: [2011] A.R. TBEd. AP.019
Her Majesty the Queen (appellant) v. A.R.M. (respondent)
(1003-0043-A; 2011 ABCA 98)
Indexed As: R. v. A.R.M.
Alberta Court of Appeal
Côté, McFadyen and Watson, JJ.A.
March 25, 2011.
Summary:
The accused was found not guilty on a charge of second degree murder. The acquittal followed the trial judge’s exclusion of statements made by the accused to a police officer on the basis that it contravened the accused’s s. 10(b) Charter rights. The Crown appealed.
The Alberta Court of Appeal allowed the appeal and ordered a new trial. The trial judge erred in finding a breach of the accused’s s. 10(b) rights and in her approach to s. 24(2) of the Charter. The excluded evidence was admissible.
Editor’s Note: A court ordered publication ban for the following case ended on September 14, 2012. Certain names in the case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise.
Civil Rights – Topic 4602
Right to counsel – General – Denial of – Evidence taken inadmissible – A police officer (Draganiuk) was investigating a murder in which the accused was a person of interest – Two other officers (Plesa and Klose) arrested the accused for obstruction in an unrelated incident – Plesa read the standard police caution and Charter advice – At the police station, Draganiuk interviewed the accused about the murder – Draganiuk commenced the interview with a “soft Charter caution” – The accused did not contact counsel – He was charged with murder – The trial judge found that Draganiuk contravened the accused’s s. 10(b) Charter rights by failing to advise him of his right to call a free legal aid lawyer, and excluded the resulting evidence – The Alberta Court of Appeal held that s. 10(b) was not breached – If there was a shortfall in the s. 10(b) informational component, it did not constitute a basis for exclusion on any of the three lines of inquiry under s. 24(2) – First, Draganiuk’s decision to speak conversationally in cautioning the accused to avoid “scaring him off” was, of itself, not a deliberate breach – There was no basis to find any nexus between Draganiuk’s good faith error and the evidence – It was difficult to discern damage to long range public confidence in the justice system – Second, the only proven impact was that the accused was not told a second time about free legal aid – There was no evidence that he was unaware of legal aid or that it made any difference to him – Absent evidence of a nexus, the breach’s magnitude should not be expanded simply because thereafter the accused participated in a reasonably conducted police interview – Third, the seriousness of the charge was significant and favoured admission – See paragraphs 52 to 65.
Civil Rights – Topic 4604
Right to counsel – General – Denial of or interference with – What constitutes – A police officer (Draganiuk) was investigating a murder in which the accused was a person of interest – Draganiuk had interviewed the accused and wanted to interview him again – Two other officers (Plesa and Klose) arrested the accused for obstruction in an unrelated incident – Plesa read the standard police caution and Charter advice – Klose questioned the accused about the murder – Draganuik then interviewed the accused about the murder – He commenced the interview with a “soft Charter caution” – Part way through the interview, he advised the accused that he should consult a lawyer – The accused did not contact counsel – He was charged with murder – The trial judge found that Draganiuk contravened the accused’s s. 10(b) Charter rights by failing to advise him of his right to call a free legal aid lawyer – The Alberta Court of Appeal allowed the Crown’s appeal – The trial judge was satisfied that the accused understood his right to counsel “generally” – He understood the extent of his legal predicament – His meaningful choice was whether, in light of the escalation of his jeopardy, he might avail himself of the free and immediate legal aid service that he was told (not long before) was available to him on a much lesser charge – From what he said to Draganuik, he did not think that he needed to speak to a lawyer, even in light of the escalation of his jeopardy, even though Draganiuk had suggested it – The informed detainee had to be duly diligent about his right to counsel – There was no evidence that the accused needed to be reminded about free legal aid, or if he was so reminded, it would have made any difference – The accused failed to establish that any material breach of the information component to be provided by the police under s. 10(b) occurred before or during his voluntary conversation with Draganiuk – See paragraphs 25 to 44.
Civil Rights – Topic 4609
Right to counsel – General – Duty of authority to notify accused or explain right to counsel – [See
Civil Rights – Topic 4604
].
Civil Rights – Topic 4609.1
Right to counsel – General – Duty of police investigators – [See
Civil Rights – Topic 4604
].
Civil Rights – Topic 4612
Right to counsel – General – Waiver or abandonment of – A police officer (Draganiuk) was investigating a murder in which the accused was a person of interest – Draganiuk had interviewed the accused and wanted to interview him again – Two other officers (Plesa and Klose) arrested the accused for obstruction in an unrelated incident – Plesa read the standard police caution and Charter advice – At the police station, Draganiuk interviewed the accused about the murder – He commenced the interview with a “soft Charter caution” – The accused was charged with murder – The trial judge found that Draganiuk contravened the accused’s s. 10(b) Charter rights by failing to advise him of his right to call a free legal aid lawyer – The Alberta Court of Appeal, in allowing the Crown’s appeal, rejected the accused’s assertion that the Crown had to show that he waived the right to be re-informed of his right to call a free legal aid lawyer – The court stated that “The burden of proof is on the Charter claimant, absent a prima facie set of facts that triggers a presumption, such as facial unreasonable trial delay in cases under s. 11(b) of the Charter or facial warrantless search and seizure in cases under s. 8 of the Charter. By comparison, the failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct … There is no evidence that the first advice here was wrong or was no longer sufficient or correct.” – See paragraph 47.
Civil Rights – Topic 4617.1
Right to counsel – General – Notice of – Sufficiency of – [See
Civil Rights – Topic 4604
].
Civil Rights – Topic 4620
Right to counsel – General – Evidence and proof – [See
Civil Rights – Topic 4612
].
Civil Rights – Topic 4620.4
Right to counsel – General – Duty of accused to act diligently – [See
Civil Rights – Topic 4604
].
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – [See
Civil Rights – Topic 4602
].
Civil Rights – Topic 8591
Canadian Charter of Rights and Freedoms – Practice – Onus or burden of proof – [See
Civil Rights – Topic 4612
].
Police – Topic 2244
Duties – Duties to inform persons under investigation – Police warning – Content of – [See
Civil Rights – Topic 4602
].
Cases Noticed:
R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257, refd to. [para. 18].
R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 2003 ABCA 121, refd to. [para. 23].
R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 23].
R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 24].
R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 24].
R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, ref to. [para. 24].
R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1, refd to. [para. 28].
R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289, refd to. [para. 28].
R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 112 C.C.C.(3d) 193, refd to. [para. 29].
R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 29].
R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 29].
R. v. S.E.V. (2009), 448 A.R. 351; 447 W.A.C. 351; 2009 ABCA 108, refd to. [para. 30].
R. v. Taylor (T.C.) (2008), 433 A.R. 1; 429 W.A.C. 1; 2008 ABCA 253, refd to. [para. 30].
R. v. Sawatsky (W.L.) (1997), 103 O.A.C. 68; 118 C.C.C.(3d) 17; 9 C.R.(5th) 23 (C.A.), refd to. [para. 30].
R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 31].
R. v. Small (D.J.) (1998), 212 A.R. 356; 168 W.A.C. 356; 1998 ABCA 85, refd to. [para. 34].
R. v. Paternak (C.D.), [1996] 3 S.C.R. 607; 203 N.R. 250; 187 A.R. 395; 127 W.A.C. 395; 110 C.C.C.(3d) 382, refd to. [para. 37].
R. v. Layton (C.A.), [2009] 2 S.C.R. 540; 390 N.R. 340; 245 Man.R.(2d) 26; 466 W.A.C. 26; 2009 SCC 36, refd to. [para. 39].
R. v. D.P. (2002), 317 A.R. 375; 284 W.A.C. 375; 2002 ABCA 285, refd to. [para. 39].
R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 39].
R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 41].
R. v. Rennie (1981), 74 Cr. App. Rep. 207 (C.A.), refd to. [para. 41].
R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 41].
R. v. Anderson (W.R.) (2009), 448 A.R. 165; 447 W.A.C. 165; 243 C.C.C.(3d) 134; 2009 ABCA 67, leave to appeal denied (2010), 406 N.R. 1; 510 A.R. 399; 527 W.A.C. 399 (S.C.C.), refd to. [para. 41].
R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 41].
R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385, refd to. [para. 42].
R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93; 37 C.C.C.(3d) 565, refd to. [para. 43].
R. v. Richfield (D.) (2003), 175 O.A.C. 54; 178 C.C.C.(3d) 23; 14 C.R.(6th) 77 (C.A.), refd to. [para. 43].
R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571; 2000 ABCA 301, refd to. [para. 43].
R. v. Rémillard, [2004] 2 S.C.R. 246; 2004 SCC 41, refd to. [para. 45].
R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 52].
R. v. Sandhu (A.S.) (2011), 274 O.A.C. 278; 2011 ONCA 124, refd to. [para. 52].
R. v. Wray, [1971] S.C.R. 272; [1970] 4 C.C.C. 1, refd to. [para. 58].
R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385; 64 C.R.(3d) 1, refd to. [para. 58].
R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 59].
R. v. Blake (O.) (2010), 257 O.A.C. 346; 251 C.C.C.(3d) 4; 2010 ONCA 1, refd to. [para. 60].
Counsel:
D.C. Marriott, Q.C., for the appellant;
M.T. Duckett, Q.C., for the respondent.
This appeal was heard on February 2, 2011, by Côté, McFadyen and Watson, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the court at Edmonton, Alberta, on March 25, 2011.
