R. v. Clark (J.), 2008 ABQB 376

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 17, 2008
• Citations: 2008 ABQB 376;(2008), 455 A.R. 132 (QB)

R. v. Clark (J.) (2008), 455 A.R. 132 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JN.074

Her Majesty the Queen (Crown) v. Joanne Clark (accused)

(041398488Q1; 2008 ABQB 376)

Indexed As: R. v. Clark (J.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

June 18, 2008.

Summary:

The accused was charged with two counts of robbery. The accused asserted that her ss. 7, 8, 9, 10 and 13 Charter rights were breached and applied to exclude the resulting evidence. The Crown applied to strike the accused's application on three grounds: the Notice of Motion was filed out of time, the Notice of Motion was insufficient and, to the extent that the Notice was sufficient, it raised matters contained in an Amended Notice of Motion which was summarily disposed of prior to a mistrial in the same matter.

The Alberta Court of Queen's Bench, in a decision reported at 453 A.R. 195, dismissed the Crown's application.

The Alberta Court of Queen's Bench dismissed the accused's application for exclusion of evidence.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - The accused was arrested for robbery - She was placed in a holding cell in the South Division at 3:55 a.m. - Shortly after 7:00 a.m., a police officer (Kowton) commenced his interview of the accused - Kowton cautioned the accused and twice gave her an opportunity to contact counsel - The Alberta Court of Queen's Bench held that although the accused was informed of her right to counsel shortly after her arrest, there was an unexplained delay prior to her being afforded the right to contact counsel - There was no evidence of exceptional circumstances excusing the delay - However, there was no evidence that the police attempted to elicit evidence during that time - The breach of the accused's right was not part of a larger pattern of disregard for Charter rights, no self-incriminatory statements were elicited, and the accused was not mistreated - There was no causal connection between any breach arising from the delay in the exercise of the accused's s. 10(b) rights and the statement obtained from her as she exercised her right to counsel prior to giving the statement - Accordingly, the statement was not obtained in a manner that infringed or denied her s. 10(b) rights - The breach was not so serious as to warrant exclusion of evidence and the administration of justice would not be brought into disrepute by admission of the statement - See paragraphs 25 and 26.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 ].

Cases Noticed:

R. v. Willier (S.J.) (2008), 429 A.R. 135; 421 W.A.C. 135; 2008 ABCA 126, refd to. [para. 20].

R. v. Singh (J.) (2007), 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 225 C.C.C.(3d) 103; 2007 SCC 48, refd to. [para. 20].

R. v. Spencer (B.S.), [2007] 1 S.C.R. 500; 358 N.R. 278; 237 B.C.A.C. 1; 392 W.A.C. 1; 2007 SCC 11, refd to. [para. 20].

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. 21].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 21].

R. v. D.H.W. (2008), 255 B.C.A.C. 1; 430 W.A.C. 1; 2008 SCC 33, refd to. [para. 21].

R. v. Wittwer - see R. v. D.H.W.

R. v. Minde (M.B.) (2003), 343 A.R. 371; 2003 ABQB 797, refd to. [para. 21].

R. v. Svekla (T.G.) (2007), 428 A.R. 306; 2007 ABQB 557, refd to. [para. 21].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 26].

Counsel:

Prima D. Michell, for the Crown;

Ronald A. Morin, for the accused.

This application was heard on June 17, 2008, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on June 18, 2008.