R. v. Agengo (D.), 2011 ABQB 171

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 16, 2011
• Citations: 2011 ABQB 171;(2011), 506 A.R. 344 (QB)

R. v. Agengo (D.) (2011), 506 A.R. 344 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.148

Her Majesty The Queen (Crown/respondent) v. Dallas Agengo (accused/applicant)

(080599392Q1; 2011 ABQB 171)

Indexed As: R. v. Agengo (D.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

March 16, 2011.

Summary:

Police responded to a civilian complaint of three males in a BMW threatening the complainant with baseball bats. The vehicle attempted to exit the area. The police activated their emergency lights and executed a high-risk takedown with their guns drawn. The occupants (including the accused) were removed from the vehicle one at a time, handcuffed and seated on the curb. The vehicle was a convertible, with its top down. A restricted handgun protruded from under the seat the accused was sitting in. The accused was arrested, advised of his Charter rights and taken to the police station, where he gave an inculpatory video-taped statement after being afforded an opportunity to contact counsel. The accused was charged with six weapons offences. The accused sought exclusion of his statement and evidence of the handgun under s. 24(2) of the Charter, arguing that his rights under ss. 8, 9 and 10(b) of the Charter were infringed. At issue was (1) whether the high-risk takedown, extraction and handcuffing was conducted in the context of an investigative detention or arrest; (2) whether there was an unreasonable search and seizure of the vehicle; (3) whether the accused's statement was voluntary; and (4) whether the accused's right to counsel was infringed.

The Alberta Court of Queen's Bench held that the accused's Charter rights were not infringed and his statement was voluntary. The evidence of the handgun and the accused's videotaped statement were admissible.

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - Police responded to a civilian complaint of three males in a BMW threatening the complainant with baseball bats - As the vehicle attempted to exit the area, the police activated their emergency lights and executed a high-risk takedown with their guns drawn - The occupants (including the accused) were removed from the vehicle one at a time, handcuffed and seated on the curb - The vehicle was a convertible, with its top down - During a visual inspection, a restricted handgun was seen protruding from under the seat the accused was sitting in - The accused was then arrested and advised of his Charter rights - The vehicle was then searched and the handgun was seized - The accused argued that the initial looking into the vehicle constituted a search and violated s. 8 of the Charter - The Alberta Court of Queen's Bench held that the police, upon the investigative detention of the accused, were entitled to visually inspect the interior of the vehicle during their tactical sweep - This did not constitute a search - The handgun was in plain view - The search of the vehicle and the seizure of the handgun occurred only after the accused was lawfully arrested and advised of his Charter rights - There was no unreasonable search and seizure and the evidence of the handgun was admissible - See paragraphs 18 to 27.

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - [See Civil Rights - Topic 1642 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1642 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was arrested for weapons offences relating to his possession of a restricted handgun and advised of his right to counsel - The accused was given an opportunity, at the police station, to contact counsel, but unequivocally declined to do so - During the taking of the accused's video-taped inculpatory statement the officer informed the accused that he would stop the questioning to allow the accused to speak with a lawyer, but the accused stated that he did not wish to do so - The accused argued that he was advised of his right to counsel when arrested for "weapons" offences; that when he was subsequently charged with more serious "firearms" offences, there was a substantial change in his jeopardy which re-triggered the right to counsel and obligated the police to make it clear to the accused what he was giving up if he waived his right to counsel - The Alberta Court of Queen's Bench rejected the accused's arguments - His right to counsel was not infringed - The court stated that "based on my finding that there was no objectively observable change of circumstance that would re-trigger the accused's s. 10(b) right, I find that it was sufficient for the officer to indicate a readiness to stop the interview and allow him to speak with counsel" - See paragraphs 46 to 54.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 3211

Compelling appearance, detention and release - Arrest - General - [See Police - Topic 3086 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - A restricted handgun was found under the seat occupied by the accused - He was arrested, advised of his Charter rights and taken to the police station - After affording the accused an opportunity to contact counsel, the police obtained a videotaped inculpatory statement - The accused sought exclusion of the statement from evidence on the ground that it was not freely and voluntarily made where the Crown did not provide evidence as to what happened in the few minutes prior to the officer's arrival where the accused was detained by a commissionaire; that the Crown should have called as witnesses all persons in authority who had contact with the accused at all relevant times at the police station before the questioning commenced; and that all police officers who had contact with the accused at critical times could not recall their interactions and/or failed to document or record those conversations - The Alberta Court of Queen's Bench held that notwithstanding the documentary recording deficiencies and the failure to call the commissionaire as a witness (could not be located on last day of voir dire), "where there is no evidence before me that the accused was induced by hope of advantage or fear or threatened in making the statement, I conclude that the confessional statement was voluntary and admissible. I hold that the fact that the commissionaire was not called as a witness, albeit the satisfactory explanation, coupled with the situation where various officers involved could not recall their interactions with the accused at critical points in the investigation, are factors which should go to the weight attached to the statement as evidence and not its admissibility" - See paragraphs 28 to 45.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - Police responded to a civilian complaint of three males in a BMW threatening the complainant with baseball bats - As the vehicle attempted to exit the area, the police activated their emergency lights and executed a high-risk takedown with their guns drawn - The occupants (including the accused) were removed from the vehicle one at a time, handcuffed and seated on the curb - The vehicle was a convertible, with its top down - A restricted handgun protruded from under the seat the accused was sitting in - The accused was then arrested and advised of his Charter rights - The accused argued that the high-risk takedown, extraction and handcuffing constituted an arrest, not an investigative detention, as argued by the Crown - The Alberta Court of Queen's Bench held that the police had logical and reasonable grounds to consider the vehicle occupants armed and dangerous - Given concerns for officer safety, the high-risk takedown, extraction and handcuffing were neither unreasonable nor arbitrary - The high-risk takedown, extraction and handcuffing were all part of the investigative detention that preceded the arrest once the gun was discovered - The court stated that "while it is true that handcuffing may be used in the process of and indicate the making of an arrest, it may also be lawfully used in the process of an investigative detention without necessarily turning the detention into an arrest" - See paragraphs 7 to 17.

Cases Noticed:

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 185 C.C.C.(3d) 308; 2004 SCC 52, refd to. [para. 7].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321, refd to. [para. 8].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 9].

R. v. Barrett (A.C.) et al. (2007), 415 A.R. 254; 2007 ABQB 174, refd to. [para. 10].

R. v. Greaves (E.A.) (2004), 203 B.C.A.C. 31; 332 W.A.C. 31; 189 C.C.C.(3d) 305; 2004 BCCA 484, refd to. [para. 13].

R. v. Cunanan (N.), [2008] O.T.C. Uned. 672; 170 C.R.R.(2d) 69 (Sup. Ct.), refd to. [para. 13].

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. 16].

R. v. Whyte (M.), [2010] O.T.C. Uned. 979; 2010 ONSC 979, refd to. [para. 20].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 21].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 132 D.L.R.(4th) 31, refd to. [para. 22].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 151 D.L.R.(4th) 443, refd to. [para. 22].

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. 28].

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. 28].

R. v. Arndt, Brooks, Harvey and Stefiuk (1981), 11 Man.R.(2d) 389 (Co. Ct.), refd to. [para. 29].

R. v. Botfield (1973), 28 C.C.C.(2d) 472 (B.C.C.A.), refd to. [para. 30].

R. v. Dryer, [1979] A.J. No. 750 (C.A.), refd to. [para. 31].

R. v. Woodward (1975), 23 C.C.C.(2d) 508 (Ont. C.A.), refd to. [para. 31].

R. v. Kacherowski, [1978] 1 W.W.R. 209; 7 A.R. 284; 37 C.C.C.(2d) 257 (C.A.), refd to. [para. 34].

R. v. Sagliocco, [1978] 3 W.W.R. 193; 39 C.C.C.(2d) 514 (B.C.C.A.), refd to. [para. 35].

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. 46].

Counsel:

Brendan Gaunt, for the Crown/respondent;

Deborah R. Hatch, for the accused/applicant.

This matter was heard on October 12-14, 2010, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 16, 2011.