R. v. Beauregard (T.V.), (2016) 612 A.R. 206

• Judge: Paperny, Slatter and Schutz, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Monday February 08, 2016
• Citations: (2016), 612 A.R. 206;2016 ABCA 37

R. v. Beauregard (T.V.) (2016), 612 A.R. 206; 662 W.A.C. 206 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. FE.030

Her Majesty the Queen (appellant) v. Trent Vinson Beauregard (respondent)

(1403-0269-A; 2016 ABCA 37)

Indexed As: R. v. Beauregard (T.V.)

Alberta Court of Appeal

Paperny, Slatter and Schutz, JJ.A.

February 8, 2016.

Summary:

The accused was charged with robbery. The trial judge held that the accused's s. 10(b) Charter right to counsel was infringed. The accused, in his statement to the police, had admitted participating in the robbery. The trial judge excluded the statement under s. 24(2) of the Charter. Absent the statement, the Crown conceded that there was insufficient evidence of identity to convict the accused. The trial judge acquitted the accused. The Crown appealed.

The Alberta Court of Appeal allowed the appeal and ordered a new trial. There was no infringement of the accused's right to counsel. Even if there was, exclusion of the statement under s. 24(2) was not warranted.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - An accused charged with robbery was advised of his s. 10(b) Charter right to counsel (informational duty) - The accused, after indicating that he wished to call a lawyer, was placed in a telephone room with a list of 20 local lawyers, the Legal Aid number and a phonebook - The accused was observed talking on the telephone - When the accused was off the phone (five minutes later), the officer asked the accused "if he was done" - The accused responded "yes" - The officer reasonably believed that the accused had finished consulting with a lawyer - The trial judge accepted the accused's evidence that he had called his mother and never talked with a lawyer - The trial judge held that the police officer's failure to directly ask the accused if he had talked with a lawyer breached the implementational duty on police and infringed the accused's s. 10(b) Charter right to counsel - The trial judge excluded the statement obtained from the accused under s. 24(2) and acquitted him - The Alberta Court of Appeal allowed the Crown's appeal and ordered a new trial - The implementational duty extended only to providing a reasonable opportunity to consult with counsel - The police had no obligation to guarantee or ensure that an accused did in fact contact counsel - The court stated that "the onus is on the detained person to make it clear that he has not succeeded in contacting counsel and wishes to have a further opportunity. ... There is no obligation on the police to positively ask if the detained person has been successful in contacting counsel. On the facts as found by the trial judge, there was no breach of s. 10(b). ... Even if there was a Charter breach, the exclusion of the evidence was not justified on this record. Any breach was minor, and entirely in good faith. The impact on the respondent's protected interests were minimal, and there was a strong public interest in prosecuting this violent crime".

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [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 4604].

Cases Noticed:

R. v. Barros (R.) (2010), 477 A.R. 127; 483 W.A.C. 127; 25 Alta. L.R.(5th) 326; 2010 ABCA 116, varied [2011] 3 S.C.R. 368; 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1, refd to. [para. 11].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 2003 ABCA 121, refd to. [para. 11].

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. 11].

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. 11].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 12].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 12].

R. v. Diep (K.T.) (2005), 363 A.R. 321; 343 W.A.C. 321; 2005 ABCA 54, refd to. [para. 12].

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. 14].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 14].

R. v. Edmonton (J.S.) (2014), 575 A.R. 213; 612 W.A.C. 213; 2014 ABCA 186, refd to. [para. 16].

R. v. Liew (K.L.) (1998), 212 A.R. 381; 168 W.A.C. 381; 1998 ABCA 98, refd to. [para. 18].

Counsel:

J.R. Russell, for the appellant;

L.L. Garcia, for the respondent.

This appeal was heard on February 4, 2016, before Paperny, Slatter and Schutz, JJ.A., of the Alberta Court of Appeal.

On February 8, 2016, the following memorandum of judgment was filed by the Court.