R. v. Cruz (J.M.), (2008) 455 A.R. 10 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 23, 2008
• Citations: (2008), 455 A.R. 10 (PC);2008 ABPC 155

R. v. Cruz (J.M.) (2008), 455 A.R. 10 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.154

Her Majesty the Queen v. Jeffery Mark Cruz (051167468P101001-04; 2008 ABPC 155)

Indexed As: R. v. Cruz (J.M.)

Alberta Provincial Court

Allen, P.C.J.

May 23, 2008.

Summary:

The accused was charged with sexual assault, unlawful sexual touching, inviting sexual touching and obtaining sexual services for consideration. The accused sought to exclude a videotaped police interview from evidence, asserting that his s. 7 Charter right to silence and his s. 10(b) implementation rights were infringed. The accused also asserted that the Crown had not established that the statement was made freely and voluntarily and that the Crown breached s. 7 of the Charter by failing to meet their disclosure obligations respecting failed attempts to record the statements of two child witnesses.

The Alberta Provincial Court held that it was premature to make any findings respecting the police's failure to record the interviews of the child witnesses. That application could be renewed at a later date. The court dismissed the remainder of the application and admitted the videotape.

Civil Rights - Topic 4604

Right to counsel - General - Denial of - What constitutes - [See second Civil Rights - Topic 4605 and second and third Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - The Alberta Provincial Court stated that "... what constitutes a reasonable opportunity to contact counsel is fact driven. The time that the detainee has to contact counsel is one of the facts that can be considered but there is no minimum time that is required in order for the police to have afforded the accused a reasonable opportunity to contact counsel. In my view, the comments of Justice Cote in [R. v. Top (C.A.)] ... are still good law. What the police officer must do or say depends, in part, upon the actions of accused. The police are not required to ask questions to determine whether the accused has contacted counsel. Indeed, it would be dangerous in most situations for the police to do so because they could elicit confidential information given by counsel to the detainee ... Where the detainee has contacted counsel, the police can presume that the detainee has received advice related to his or her right to silence and how to exercise that right. The detainee has an obligation to be duly diligent in exercising his right to counsel. Thus, if the detainee desires more time to obtain legal advice, or other assistance from the police, they should so indicate. The police officer's duty to provide a reasonable opportunity is based upon the knowledge of the officer or what that officer could readily surmise." - See paragraph 71.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - The accused was charged with sexual assault, unlawful sexual touching, inviting sexual touching and obtaining sexual services for consideration - He sought to exclude a videotaped police interview from evidence, asserting that he had been unable to contact counsel of his choice and that the two minutes that he spent on the telephone could not be construed as a reasonable opportunity to consult counsel - The Alberta Provincial Court rejected the assertion - The officer (Flaman) who provided the accused with a room to contact counsel knew that the accused had spoken with counsel prior to his arrest - He could have reasonably expected that legal advice had already been provided - The advice that the accused needed related to his right silence and how to exercise that right - Such advice would not necessarily have been lengthy - Moreover, the time required could have been greatly curtailed in view of the accused's prior consultation with his lawyer - It was reasonable for Flaman to have presumed that the accused had been given appropriate legal advice despite the short time frame - The accused did not ask for further time or for further assistance from Flaman - The accused was not reasonably diligent in his exercise of his right to counsel - See paragraphs 74 to 79.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See both Civil Rights - Topic 4605 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - The accused was charged with sexual assault, unlawful sexual touching, inviting sexual touching and obtaining sexual services for consideration - He sought to exclude a videotaped police interview from evidence, asserting that his s. 10(b) Charter implementation rights were infringed - He asserted that, inter alia, the Crown had to establish that he received legal advice on how to exercise his desire to remain silent - The Alberta Provincial Court rejected the assertion - There was a good reason that such an evidentiary obligation was not imposed, i.e., counsel was presumed to give the appropriate advice concerning the right to silence - Further, it would be illogical to require the Crown to present evidence related to advice given by counsel - That evidence could only be obtained by the police questioning the accused as to the nature of the advice that they received - Solicitor-client privilege would be destroyed - See paragraphs 37 to 46.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - The accused was a suspect in a case involving sexual assault offences and a child - He was arrested - At the police station, after being given an opportunity to contact counsel, he was taken to an interview room - The lead investigator (McVeigh) began the interview by telling the accused that she had not wanted to arrest him but his action in not coming to the station for an interview left her with no choice - The accused explained that he had not come voluntarily on the advice of counsel - McVeigh responded that the counsel's advice was disappointing and surprising - The accused asserted that McVeigh's conduct in belittling his counsel infringed his s. 10(b) Charter right - The Alberta Provincial Court rejected the assertion - It was unfortunate that McVeigh ventured any comment respecting the advice of counsel - However, her comments did not amount to a belittling nor a deliberate attempt to undermine the accused's confidence in his counsel - See paragraph 80.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - The Alberta Provincial Court stated that "There is a high onus on an officer to obtain a clear indication that detainees are unequivocally waiving their right to counsel. A proper waiver must be free and voluntary, i.e. free of direct or indirect compulsion. The officer seeking a waiver has additional informational obligations: (1) to inform detainees of their right of a reasonable opportunity to consult counsel and (2) to inform detainees that the police must refrain from participating in any incriminatory process until they have the reasonable opportunity to contact counsel." - See paragraph 82.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - The accused was a suspect in a case involving sexual assault offences involving a child - He was arrested and given an opportunity to contact a lawyer before being interviewed by the police - In the interview room, the accused signed a document indicating that he had been read his rights and understood - He advised the lead investigator (McVeigh) that he had spoken to his lawyer's secretary and left a message - The accused rejected McVeigh's suggestion that he contact legal aid duty counsel - McVeigh made it clear to him that he could contact counsel again - The accused indicated that he did not want to talk to counsel - McVeigh responded that he was free to contact counsel at any time during the interview - The accused then signed a document waiving his right to a lawyer - McVeigh then discussed the meaning of waiver and explained that the accused could change his mind and ask for a lawyer - The accused indicated his understanding, reaffirmed that he was waiving his right and signed to that effect on the document - McVeigh then read a secondary caution as the accused had been arrested by other officers - The accused signed a document indicating that he understood - The Alberta Provincial Court held that the Crown had met the high onus of proving that the accused freely and voluntarily waived his right to counsel and understood that he was doing so - See paragraphs 81 to 84.

Civil Rights - Topic 4620

Right to counsel - General - Evidence and proof - The accused sought to exclude a videotaped police interview from evidence, asserting that his s. 10(b) Charter implementation rights were infringed - The Alberta Provincial Court stated that "In [R. v. Bartle (K.) (S.C.C.)], Chief Justice Lamer observed that the ultimate burden of persuasion rests with the applicant but 'as a practical matter the burden will shift back and forth between the applicant and the Crown depending upon the nature of what the particular contested issue is, which party is seeking to rely upon it and, of course, the nature of the Charter right which has been violated' ... Although those comments were made related to the burden in s. 24(2) of the Charter, they are equally applicable to the proof of s. 10(b) infringement. ... The Crown has the burden of establishing that the detainee who invoked his right to counsel was provided with a reasonable opportunity to exercise the right ... However, where the detainee has been given a reasonable opportunity to exercise the right to counsel then the detainee has the burden of establishing that he was reasonably diligent in the exercise of that right ..." - See paragraphs 47 and 48.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - [See second Civil Rights - Topic 4605 ].

Criminal Law - Topic 5335

Evidence and witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - The accused was a suspect in a case involving sexual assault offences and a child - He refused to give a police interview - The lead investigator (McVeigh) had him arrested - At 10:53 a.m., he entered the interview room - He waived his right to counsel and indicated that he had nothing to say - McVeigh employed some of the Reid Technique of Interview and Interrogation methodology - She advised the accused that, inter alia, the evidence against him was overwhelming - Based on the accused's use of a moral justification, she indicated that she believed that the victim had an active role and had initiated some of what happened - She left him with two options: leave the victim's story uncontradicted or set the record straight by giving his side of the story - The theme gave the accused the opportunity to be less morally culpable but legally guilty - At 12:39 p.m., the accused began giving his side of the story - Charges were laid - The accused sought to exclude the statement, asserting that, inter alia, there was a reasonable doubt that the statement was voluntary - The Alberta Provincial Court rejected the assertion - The accused had an operating mind - McVeigh neither threatened him nor directly promised anything if he confessed - Even if the less morally reprehensible basis for the offences amounted to a type of quid pro quo, it was not enough to raise a reasonable doubt - The interview was not held under oppressive conditions - McVeigh's failure to tell the accused that the victim's participation was not a defence might be considered trickery, but it was not so shocking as to require the exclusion of the evidence - See paragraphs 122 to 176.

Criminal Law - Topic 5352

Evidence and witnesses - Confessions and voluntary statements - Statements to a person in authority - [See Criminal Law - Topic 5335 ].

Criminal Law - Topic 5352

Evidence and witnesses - Confessions and voluntary statements - Statements to a person in authority - The Alberta Provincial Court stated that "To establish that a statement is given freely and voluntarily the Crown must produce those involved in the taking of the statement. ... The rule would apply to any person in authority not simply a police officer. ... The Courts have ruled that adequate explanations can excuse the need to call a witness. ..." - See paragraphs 111 to 117.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See second Criminal Law - Topic 5352 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was charged with sexual assault, unlawful sexual touching, inviting sexual touching and obtaining sexual services for consideration - He sought to exclude a videotaped police interview from evidence, asserting that the Crown failed to call a "social worker" who was present at the time of his arrest and therefore failed to establish that he made the statement freely and voluntarily - The Alberta Provincial Court rejected the assertion - The possible presence of another person during the accused's arrest arose because of the testimony of a police officer who was not present at the time of the arrest - Another officer (Perry) testified that he that he had "a student in the passenger seat" and was present at the time of the arrest as a backup for the arresting officer - Perry was not asked if the student accompanied the officers when they arrested the accused - The evidence was not sufficient to raise a reasonable doubt that the student was present or had any contact with the accused during the arrest process - Alternatively, the fact that the student was just present, was an adequate explanation for the Crown's failure to call her as a witness - See paragraphs 114 to 121.

Criminal Law - Topic 5359.1

Evidence and witnesses - Confessions and voluntary statements - Evidence and proof - [See Criminal Law - Topic 5335 , second Criminal Law - Topic 5352 and second Criminal Law - Topic 5355 ].

Police - Topic 3107

Powers - Investigation - Questioning of suspects and witnesses - [See both Civil Rights - Topic 4605 and second and third Civil Rights - Topic 4609.1 ].

Police - Topic 3126

Powers - Interrogation - Duties of police officers - [See both Civil Rights - Topic 4605 and second and third Civil Rights - Topic 4609.1 ].

Cases Noticed:

R. v. La (H.K.) et al. (1997), 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81; 116 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 6].

R. v. Bartle (K.) (1994), 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 35].

R. v. Prosper (1994), 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 36].

R. v. Osmond (G.R.) (2007), 246 B.C.A.C. 274; 406 W.A.C. 274 (C.A.), dist. [para. 38].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 40].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 40].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 57 C.C.C.(3d) 1, refd to. [para. 41].

R. v. Singh (J.) (2007), 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 44].

R. v. Jones (P.A.) (2005), 380 A.R. 347; 363 W.A.C. 347 (C.A.), refd to. [para. 45].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 271 (C.A.), refd to. [para. 47].

R. v. Tremblay (1987), 79 N.R. 153; 25 O.A.C. 93; 37 C.C.C.(3d) 565 (S.C.C.), refd to. [para. 50].

R. v. Leclair and Ross (1989), 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 51].

R. v. Black (1989), 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 52].

R. v. Smith (J.L.) (1989), 99 N.R. 372; 50 C.C.C.(3d) 308 (S.C.C.), refd to. [para. 53].

R. v. Top (1989), 95 A.R. 195; 48 C.C.C.(3d) 493 (C.A.), consd. [para. 56].

R. v. Ferron (1989), 49 C.C.C.(3d) 432 (B.C.C.A.), refd to. [para. 60].

R. v. Whitford (B.E.) (1997), 196 A.R. 97; 141 W.A.C. 97 (C.A.), refd to. [para. 61].

R. v. Liew (K.L.) (1998), 212 A.R. 381; 168 W.A.C. 381; 124 C.C.C.(3d) 202 (C.A.), affd. (1999), 244 N.R. 249; 244 A.R. 1; 209 W.A.C. 1; 137 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 63].

R. v. Andersen (D.J.) (2003), 350 A.R. 135 (Q.B.), refd to. [para. 65].

R. v. Rezansoff (B.) (2003), 337 A.R. 169 (Q.B.), refd to. [para. 66].

R. v. Buffalo (D.A.) (2003), 337 A.R. 120 (Q.B.), refd to. [para. 67].

R. v. Ward (M.E.) (2007), 434 A.R. 378 (Q.B.), refd to. [para. 69].

R. v. Kurich (A.), [2007] A.R. Uned. 66 (Prov. Ct.), refd to. [para. 70].

R. v. Burlingham (T.W.) (1995), 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 72].

R. v. Thiffault (1933), 60 C.C.C. 97 (S.C.C.), refd to. [para. 114].

R. v. Botfield (1973), 8 C.C.C.(2d) 81 (B.C.S.C.), affd. (1973), 28 C.C.C.(2d) 472 (B.C.C.A.), refd to. [para. 115].

R. v. Settee (1974), 22 C.C.C.(2d) 193 (Sask. C.A.), refd to. [para. 116].

R. v. Kacherowski (1977), 7 A.R. 284; 37 C.C.C.(2d) 257 (C.A.), refd to. [para. 117].

R. v. M.J.S. (2000), 263 A.R. 38 (Prov. Ct.), refd to. [para. 122].

R. v. Minde (M.R.) (2003), 343 A.R. 371; 179 C.C.C.(3d) 188 (Q.B.), refd to. [para. 122].

R. v. Oickle (R.F.) (2000), 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 122].

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, refd to. [para. 152].

Counsel:

S. Bykewich, for the Crown;

P. Shipanoff, for the accused.

This application was heard by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following decision on May 23, 2008.