R. v. Coles (M.F.), 2005 ABPC 20

JudgeFradsham, P.C.J.
CourtProvincial Court of Alberta (Canada)
Case DateFebruary 07, 2005
Citations2005 ABPC 20;(2005), 374 A.R. 234 (PC)

R. v. Coles (M.F.) (2005), 374 A.R. 234 (PC)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. FE.081

Her Majesty The Queen v. Michael Fraser Coles

(030634893P101001; 01002; 2005 ABPC 20)

Indexed As: R. v. Coles (M.F.)

Alberta Provincial Court

Fradsham, P.C.J.

February 7, 2005.

Summary:

An accused charged with impaired driving and refusing a breathalyzer demand alleged a denial of his s. 10(b) Charter right to counsel. As a voir dire commenced, a dispute arose as to the procedure to be followed. The issue was "in a situation where the evidence regarding the alleged Charter breach will have to come from a police officer, may the Crown insist that the accused, who bears the burden of proving the Charter breach on a balance of probabilities, call the police officer as its own witness and lead the evidence from the officer in an examination-in-chief?".

The Alberta Provincial Court determined how the voir dire would proceed.

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [See first Criminal Law - Topic 5334 ].

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevancy - Voir dire - General - [See first Criminal Law - Topic 5334 ].

Criminal Law - Topic 5334

Evidence and witnesses - Confessions and voluntary statements - Voir dire - Procedure - An accused sought exclusion of evidence resulting from an alleged denial of his s. 10(b) Charter right to counsel - As a voir dire commenced, a dispute arose as to procedure - The issue was "in a situation where the evidence regarding the alleged Charter breach will have to come from a police officer, may the Crown insist that the accused, who bears the burden of proving the Charter breach on a balance of probabilities, call the police officer as its own witness and lead the evidence from the officer in an examination-in-chief?" - The Alberta Provincial Court stated that "I am satisfied that the police officer is a partisan Crown witness. I would permit the accused to cross-examine the officer even if the accused called the officer as one of its witnesses in the voir dire. Likewise, I would require the Crown to then ask its questions of the officer as it would in an examination-in-chief. ... If, after the evidence from the police officer, the defence does not plan to call any other witnesses in the voir dire, then I am of the view that efficiency dictates that upon entering the voir dire the Crown should continue its examination-in-chief of the officer, followed by cross-examination by defence counsel, and whatever evidence the Crown may wish to call. However, if the accused plans to call additional witnesses (who are not Crown partisan) in the voir dire after the officer has given his evidence in the voir dire, then it is my opinion that efficiency requires that upon entering the voir dire defence counsel should call the officer as one of its witnesses (though defence counsel will be permitted to cross-examine that witness), followed by an examination-in-chief type of examination by the Crown, after which the defence will call its additional witnesses in the voir dire and conduct an examination-in-chief of them. The Crown will be permitted to cross-examine those witnesses. At the close of the accused's case in the voir dire, the Crown will be put to its election to call evidence or not." - See paragraphs 48 to 51.

Criminal Law - Topic 5334

Evidence and witnesses - Confessions and voluntary statements - Voir dire - Procedure - The Alberta Provincial Court set out 10 guidelines to govern the appropriate procedure in a voir dire involving a Charter breach - See paragraph 39.

Cases Noticed:

R. v. Bercha (M.), [2004] A.R. Uned. 766; 2004 ABPC 232, refd to. [para. 19].

R. v. Trang (D.) (2003), 349 A.R. 70 (Q.B.), refd to. [para. 21].

R. v. Sanche (W.) (2003), 334 A.R. 39 (Prov. Ct.), refd to. [para. 26].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 27].

R. v. Guest (J.C.) (1994), 155 A.R. 318; 73 W.A.C. 318 (C.A.), refd to. [para. 29].

R. v. Brosseau (F.D.) (2001), 305 A.R. 1 (Prov. Ct.), refd to. [para. 30].

R. v. Habhab (I.) (1997), 197 A.R. 161 (Prov. Ct.), refd to. [para. 32].

R. v. Sapara [2002] A.J. No. 483 (Q.B.), refd to. [para. 37].

R. v. Baker (D.F.) (2004) 372 A.R. 230; 2004 ABPC 218, refd to. [para. 40, footnote 4].

Counsel:

D. Chow, for the Crown;

T.E. Foster, for the accused.

This matter was heard before Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on February 7, 2005.

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7 practice notes
  • R. v. Ukrainetz (K.D.), (2006) 284 Sask.R. 250 (PC)
    • Canada
    • Saskatchewan Provincial Court of Saskatchewan (Canada)
    • August 29, 2006
    ...P.C.J., et al. Montgomery v. Ebert, P.C.J., et al. (2006), 232 Sask.R. 313; 2006 SKQB 338, refd to. [para. 77]. R. v. Coles (M.F.) (2005), 374 A.R. 234 (Prov. Ct.), refd to. [para. Barrie Stricker, for the Crown; Ronald Piché, for the defence. These applications were heard by Green, P.C.J.,......
  • R v Ryland, 2017 ABQB 799
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 21, 2017
    ...arguments raised. Through his review of two Alberta provincial court decisions, R. v. Baker, 2004 ABPC 218 (CanLII) and R. v. Coles, 2005 ABPC 20 (CanLII), the trial judge concluded that a Charter notice should contain the argument and evidence to be brought forward on the application in a ......
  • R. v. Brodersen (C.M.), [2012] A.R. Uned. 615 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • August 1, 2012
    ...submissions in support of it. He was not prepared to authorize that procedure without additional information. [65] In R. v. Coles , 2005 ABPC 20 (' Coles '), the court undertook an extensive review of existing judicial comment on the procedures to be followed during a Charter , s.24 applica......
  • R. v. Callahan (S.L.), (2008) 455 A.R. 54 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • May 2, 2008
    ...51 (C.A.), refd to. [para. 33]. R. v. Baker (D.F.) (2004), 372 A.R. 230; 2004 ABPC 218, refd to. [para. 34]. R. v. Coles (M.F.) (2005), 374 A.R. 234; 2005 ABPC 20, refd to. [para. R. v. Blom (E.) (2002), 162 O.A.C. 238; 167 C.C.C.(3d) 332 (C.A.), dist. [para. 37]. R. v. Foote, [1992] A.J. N......
  • Request a trial to view additional results
7 cases
  • R. v. Ukrainetz (K.D.), (2006) 284 Sask.R. 250 (PC)
    • Canada
    • Saskatchewan Provincial Court of Saskatchewan (Canada)
    • August 29, 2006
    ...P.C.J., et al. Montgomery v. Ebert, P.C.J., et al. (2006), 232 Sask.R. 313; 2006 SKQB 338, refd to. [para. 77]. R. v. Coles (M.F.) (2005), 374 A.R. 234 (Prov. Ct.), refd to. [para. Barrie Stricker, for the Crown; Ronald Piché, for the defence. These applications were heard by Green, P.C.J.,......
  • R v Ryland, 2017 ABQB 799
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 21, 2017
    ...arguments raised. Through his review of two Alberta provincial court decisions, R. v. Baker, 2004 ABPC 218 (CanLII) and R. v. Coles, 2005 ABPC 20 (CanLII), the trial judge concluded that a Charter notice should contain the argument and evidence to be brought forward on the application in a ......
  • R. v. Brodersen (C.M.), [2012] A.R. Uned. 615 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • August 1, 2012
    ...submissions in support of it. He was not prepared to authorize that procedure without additional information. [65] In R. v. Coles , 2005 ABPC 20 (' Coles '), the court undertook an extensive review of existing judicial comment on the procedures to be followed during a Charter , s.24 applica......
  • R. v. Callahan (S.L.), (2008) 455 A.R. 54 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • May 2, 2008
    ...51 (C.A.), refd to. [para. 33]. R. v. Baker (D.F.) (2004), 372 A.R. 230; 2004 ABPC 218, refd to. [para. 34]. R. v. Coles (M.F.) (2005), 374 A.R. 234; 2005 ABPC 20, refd to. [para. R. v. Blom (E.) (2002), 162 O.A.C. 238; 167 C.C.C.(3d) 332 (C.A.), dist. [para. 37]. R. v. Foote, [1992] A.J. N......
  • Request a trial to view additional results

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