R. v. Agengo (D.), (2011) 507 A.R. 382 (QB)

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 04, 2011
• Citations: (2011), 507 A.R. 382 (QB);2011 ABQB 430

R. v. Agengo (D.) (2011), 507 A.R. 382 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.076

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

(080599392Q1; 2011 ABQB 430)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

July 6, 2011.

Summary:

A voir dire was held to determine whether certain of the accused's Charter rights were infringed and whether his inculpatory statement to police was voluntary. At the conclusion of the voir dire, the matter was adjourned to permit the parties to file written submissions, to be followed by "a one day process of oral submissions". The accused, then the Crown, filed written submissions. Due to an oversight, the court rendered judgment on the voir dire (unfavourable to the accused) without affording the parties the promised opportunity to make oral submissions. The accused sought a mistrial, alleging a miscarriage of justice and a reasonable apprehension of bias.

The Alberta Court of Queen's Bench held that a mistrial was not appropriate. There was no miscarriage of justice where the parties filed, and the court considered, extensive written submissions. There was no evidence of any reasonable apprehension of bias. The oversight could be remedied by permitting the accused and Crown to make their oral submissions in addition to the written submissions. The court would consider the oral decisions in rendering a final decision on the voir dire.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - A voir dire was held to determine whether certain of the accused's Charter rights were infringed and whether his inculpatory statement to police was voluntary - At the conclusion of the voir dire, the matter was adjourned to permit the parties to file written submissions, to be followed by "a one day process of oral submissions" - The accused, then the Crown, filed written submissions - Due to an oversight, the court rendered judgment on the voir dire (unfavourable to the accused) without affording the parties the promised opportunity to make oral submissions - The accused sought a mistrial, alleging a miscarriage of justice and a reasonable apprehension of bias - The Alberta Court of Queen's Bench held that a mistrial was not appropriate - There was no miscarriage of justice where the parties filed, and the court considered, extensive written submissions - There was no evidence of any reasonable apprehension of bias - The oversight could be remedied by permitting the accused and Crown to make their oral submissions in addition to the written submissions - The court would consider the oral decisions in rendering a final decision on the voir dire.

Criminal Law - Topic 5214.91

Procedure - Evidence and witnesses - Admissibility and relevancy - Voir dire - Re-opening - [See Criminal Law - Topic 4633 ].

Cases Noticed:

R. v. Dresen, [1998] N.W.T.R. 194 (C.A.), refd to. [para. 4].

R. v. Colley (1991), 105 N.S.R.(2d) 178; 284 A.P.R. 178 (C.A.), dist. [para. 5].

R. v. MacLean (1991), 106 N.S.R.(2d) 213; 288 A.P.R. 213 (C.A.), dist. [para. 5].

R. v. Jahn (1982), 35 A.R. 583; 135 D.L.R.(3d) 514 (C.A.), dist. [para. 6].

Dewey v. Dawson-Moran et al. (2011), 502 A.R. 74; 517 W.A.C. 74; 2011 ABCA 45, refd to. [para. 7].

R. v. Morin (M.P.), [1995] B.C.T.C. Uned. 136 (S.C.), refd to. [para. 7].

R. v. Wu (J.J.) et al. (2002), 167 O.A.C. 141; 170 C.C.C.(3d) 225 (C.A.), refd to. [para. 7].

R. v. Bayne (1970), 74 W.W.R.(N.S.) 561; 1970 CarswellAlta 105 (C.A.), refd to. [para. 10].

R. v. Pearson (1957), 117 C.C.C. 249; 1957 CarswellAlta 25 (C.A.), refd to. [para. 10].

R. v. Giroux (C.D.) (2003), 349 A.R. 146; 2003 ABQB 1010, refd to. [para. 11].

R. v. Nightingale (D.) et al. (2003), 352 A.R. 50; 2003 ABQB 1054, refd to. [para. 11].

R. v. Sazant (M.), [2004] 3 S.C.R. 635; 348 N.R. 1; 210 O.A.C. 376; 2004 SCC 77, refd to. [para. 12].

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271; 2002 SCC 55, refd to. [para. 14].

R. v. Selvanayagampillai, 2010 ONCJ 278, refd to. [para. 14].

Hoffman-La Roche Ltd. v. Delmar Chemicals Ltd., [1965] S.C.R. 575; 50 D.L.R.(2d) 607, refd to. [para. 15].

National Aviation Consultants Ltd. v. Starline Aviation Ltd., [1973] F.C. 571; 1973 CarswellNat 43, refd to. [para. 15].

Collins v. Canada (2011), 421 N.R. 201; 2011 FCA 171, refd to. [para. 23].

Counsel:

Deborah R. Hatch, for the applicant/accused;

Brenda Gaunt, for the respondent/Crown.

This matter was heard orally on April 4, 2011, and in writing on April 14 and 29, 2011, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on July 6, 2011.