R. v. Clark (J.), 2008 ABQB 368

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 16, 2008
• Citations: 2008 ABQB 368;(2008), 453 A.R. 195 (QB)

R. v. Clark (J.) (2008), 453 A.R. 195 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JN.095

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

(041398488Q1; 2008 ABQB 368)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

June 17, 2008.

Summary:

The accused was charged with robbery. She applied for relief respecting alleged breaches of her ss. 7, 8, 9, 10 and 13 Charter rights. 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 dismissed the Crown's application.

Civil Rights - Topic 8582

Canadian Charter of Rights and Freedoms - Practice - Charter application - Grounds for precluding - The accused was charged with robbery - She applied for relief respecting alleged breaches of her ss. 7, 8, 9, 10 and 13 Charter rights - The Crown applied to strike the accused's application on three grounds - First, the Notice of Motion was filed out of time -While the notice was filed within 14 days of the date the proceeding was supposed to commence, it was not filed by the deadline established at the pretrial conference - Second, the Notice of Motion was insufficient - Third, 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 rejected the arguments and dismissed the Crown's application - Despite the deadline set by the pretrial conference judge, the court had discretion as to whether or not to dispose of the notice - The court considered defence counsel's explanation for the delay and concluded that the accused should not be precluded from asserting her Charter rights by virtue of the late filing, especially given that the notice was timely under the Constitutional Notice Regulation - Some of the allegations in the notice were vague - However, the gist of the accused's allegations were present - The accused should be given an opportunity to attempt to establish the alleged breaches.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Civil Rights - Topic 8582 ].

Cases Noticed:

R. v. M.L.K. (2004), 370 A.R. 117; 2004 ABQB 734, refd to. [para. 13].

Counsel:

Prima D. Michell, for the Crown;

Ronald A. Morin, for the accused.

This application was heard on June 16, 2008, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on June 17, 2008.