R. v. Casement (B.R.), 2007 SKQB 422

• Judge: Dovell, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 16, 2007
• Jurisdiction: Saskatchewan
• Citations: 2007 SKQB 422;(2007), 376 Sask.R. 67 (QB)

R. v. Casement (B.R.) (2007), 376 Sask.R. 67 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. AP.055

Brian Robert Casement v. Her Majesty the Queen

(2006 J. No. 21; 2007 SKQB 422)

Indexed As: R. v. Casement (B.R.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Dovell, J.

November 16, 2007.

Summary:

Casement was charged with the first degree murder of Victoria Nashacappo between September 25, 2002 and October 31, 2002. He was committed to stand trial. Casement first became a suspect on June 23, 2006, during a long running undercover operation ("Project Erven") into the death of a street person who had been found in a dumpster near Casement's then home on June 12, 2003. Casement applied for a stay of proceedings or alternatively exclusion of all the evidence as contained in "Project Erven" and the derivative evidence, based on the proposition that the actions of the undercover operators amounted to an abuse of process and various Charter breaches. The narrow issue to be determined was whether a voir dire should be held.

The Saskatchewan Court of Queen's Bench dismissed the application for a stay of proceedings. It had not been established there was a live issue to be explored on a voir dire based on abuse of process. However, there were certain aspects of the undercover operation that had to be more thoroughly investigated in all likelihood through a voir dire. The application for exclusion of evidence was adjourned (with the exception of any argument on the ground that the conduct of the undercover operators amounted to an abuse of process) until the completion of the voir dire.

Editor's Note: There was a ban on the publication of this pretrial application decision until the jury returned its verdict. On January 21, 2009, the jury returned its verdict of guilty to first degree murder.

Civil Rights - Topic 1410.2

Security of the person - Law enforcement - Investigation - [See first Civil Rights - Topic 8590.1 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Civil Rights - Topic 8590.1 ].

Civil Rights - Topic 8590.1

Canadian Charter of Rights of Freedoms - Practice - Voir dire - Procedure - The accused applied for a stay of proceedings - He argued that the conduct of the undercover operators of "Project Erven" amounted to an abuse of process and that a stay should be granted based on the jurisprudence and s. 24(1) of the Charter - The sole issue was whether the court should direct that a voir dire be held - The Saskatchewan Court of Queen's Bench dismissed the application - The accused had not met the minimal evidentiary burden of establishing that the threshold test to proceed with a voir dire had been met - "At no time did any of the undercover operators overstep the boundaries of shocking the community, violating fundamental community values or going beyond the considerable latitude in executing undercover strategies" - The accused was a willing participant in all of the scenarios acted out during "Project Erven" - The scenarios were "relatively tame" - The undercover officers did everything they could not to incite the accused to commit violence - The conduct of the undercover operation would not shock the community - Any fear the accused might have had with regard to any action on the part of the undercover operators only went to weight as opposed to admissibility of any subsequent statement made by him - There was no evidence before the court that any illegal acts were committed by the undercover operators - See paragraphs 32 to 55.

Civil Rights - Topic 8590.1

Canadian Charter of Rights of Freedoms - Practice - Voir dire - Procedure - The accused requested on numerous grounds that all of the evidence gathered during an undercover operation ("Project Erven") as well as any derivative evidence obtained should be excluded and that a voir dire was required to make that determination - The application for exclusion of evidence focussed solely on the conduct of the undercover operators - The Saskatchewan Court of Queen's Bench adjourned the application - While the court had found that "Project Erven" did not amount to an abuse of process that would result in all of the evidence being excluded, there were certain aspects of the undercover operation that had to be more thoroughly investigated in all likelihood through a voir dire - The court was in "total agreement" with the accused's request that his application be adjourned until the completion of the voir dire and that at that time he be allowed to renew his application for exclusion of evidence if he so chose - The applicant would be entitled to any ground available to him (other than abuse of process during the undercover operation) for the purpose of his requesting that evidence be excluded, including trial fairness, prejudicial effect outweighing any probative value and breaches of any Charter sections - See paragraphs 56 to 60.

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See first Civil Rights - Topic 8590.1 ].

Criminal Law - Topic 5332

Evidence and witnesses - Confessions and voluntary statements - Voir dire - Necessity and purpose of - [See both Civil Rights - Topic 8590.1 ].

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - [See both Civil Rights - Topic 8590.1 ].

Cases Noticed:

R. v. Vukelich (M.) (1996), 78 B.C.A.C. 113; 128 W.A.C. 113; 108 C.C.C.(3d) 193 (C.A.), leave to appeal refused [1997] 2 S.C.R. xvi; 216 N.R. 239; 98 B.C.A.C. 80; 161 W.A.C. 80, appld. [para. 17].

R. v. Hathway (W.G.) (2007), 292 Sask.R. 7; 2007 SKQB 48, appld. [para. 19].

R. v. Williams (T.G.) (2002), 171 B.C.A.C. 308; 280 W.A.C. 308; 168 C.C.C.(3d) 67; 2002 BCCA 453, refd to. [para. 22].

R. v. Peters (D.W.A.) (1999), 126 B.C.A.C. 208; 206 W.A.C. 208; 137 C.C.C.(3d) 26; 1999 BCCA 406, refd to. [para. 22].

R. v. Moore (C.A.) (1997), 94 B.C.A.C. 281; 152 W.A.C. 281 (C.A.), refd to. [para. 22].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 191 C.C.C.(3d) 449; 2005 SCC 5, appld. [para. 16].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, appld. [para. 24].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 26].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 26].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 26].

R. v. Riley, [2001] B.C.J. No. 2398 (S.C.), refd to. [para. 50].

Counsel:

Roger J. Kergoat, for the applicant;

Melodi A. Kujawa and Krista L. Zerr, for the respondent.

This application was heard by Dovell, J., of the Saskatchewan Provincial Court, Judicial Centre of Saskatoon, who delivered the following decision dated November 16, 2007.