R. v. Cutforth, (1987) 81 A.R. 213 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: September 30, 1987
• Citations: (1987), 81 A.R. 213 (CA);1987 CanLII 114 (AB CA);[1988] 1 WWR 274;55 Alta LR (2d) 193;81 AR 213;40 CCC (3d) 253;61 CR (3d) 187;[1987] CarswellAlta 219;[1987] AJ No 859 (QL);12 MVR (2d) 248

R. v. Cutforth (1987), 81 A.R. 213 (CA)

MLB headnote and full text

R. v. Charles Brian Cutforth

(Appeal No. 8603-0201-A)

Indexed As: R. v. Cutforth

Alberta Court of Appeal

Laycraft, C.J.A., McClung, J.A., and Berger, J. (ad hoc)

September 30, 1987.

Summary:

An accused was charged with impaired driving and driving a motor vehicle while an excessive blood-alcohol content. The Crown introduced its evidence and sought admission of the breathalyzer certificates. At that point the accused sought and was granted an adjournment and then advised the trial judge that he was entering into a voir dire respecting an alleged arbitrary detention contrary to s. 9 of the Charter of Rights and Freedoms. The trial judge ruled that the accused was arbitrarily detained and that he therefore had to grant a remedy. Since s. 24(2) (exclusion of evidence) was inapplicable (where no evidence sought to be introduced resulted from the alleged detention), the trial judge granted a stay of proceedings under s. 24(1). The Crown appealed.

The Alberta Court of Appeal allowed the appeal and ordered a new trial, confined to the issues raised in the information and excluding the issue of detention. The court held that the trial judge was not a court of competent jurisdiction to grant a remedy for an alleged Charter rights denial that was not a defence to the charges and that did not create evidence which had to be suppressed under s. 24(2). The court also held that the voir dire should not have been held and that the Provincial Court of Alberta had jurisdiction, in a proper case, to grant a stay of proceedings.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - Court of competent jurisdiction - An accused charged with drinking and driving offences alleged he was arbitrarily detained - Such detention was irrelevant to the charges in that detention would not constitute a defence and no evidence was obtained as a result of the alleged detention - The Alberta Court of Appeal held that "detention, as an issue, stood alone and irrelevant" - The court held that a trial court was not a court of competent jurisdiction to grant a remedy for a Charter rights denial that was foreign to the issues raised in the information and did not engage the court's exclusionary jurisdiction under s. 24(2) - The court held that the accused's remedy was to be obtained in a separate Court of Queen's Bench action, and did not affect guilt or innocence respecting the charges - See paragraphs 16 to 29.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The Alberta Court of Appeal stated that a stay of proceedings, except in delay and duplication cases, should be confined to the "clearest of cases" contemplated by the law of abuse of process, where there was a gross violation of the community's expectation of fair play in the practical workings of its justice system and abusive employment of the court's jurisdiction and processes - The court stated that "the detention of an accused who was arrested for the matters raised in the indictment is not an issue sympathetic to the use of the judicial stay of proceedings" - See paragraphs 30 to 48.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The Alberta Court of Appeal stated that trial judges should decline the burden of remedying all Charter infringements under s. 24(1), unless the infringement is clearly exploratory of the issues raised by the information being tried - The court stated that exploration of issues so raised included evidence sought to be excluded under s. 24(2) - The court held that where an accused alleged an arbitrary detention that did not provide a defence to the charge and did not give rise to evidence to be excluded under s. 24(2), then the Provincial Court should not deal with the unrelated Charter issue, but leave the issue to the Court of Queen's Bench - See paragraph 48.

Civil Rights - Topic 8585

Canadian Charter of Rights and Freedoms - Practice - Time for deciding Charter issues - [See Civil Rights - Topic 8584 above].

Courts - Topic 8405

Provincial courts - Alberta - Provincial Court - Jurisdiction - The Alberta Court of Appeal held that notwithstanding the stated limits of s. 739 of the Criminal Code, the Provincial Court of Alberta has jurisdiction, in a proper case, to grant a stay of proceedings to terminate summary conviction prosecutions under Parts XXIV and XIV of the Criminal Code - See paragraph 48.

Criminal Law - Topic 5332

Evidence - Witnesses - Confessions and voluntary statements - Voir dire - Necessity and purpose of - During the Crown's case an accused charged with impaired driving offences advised the trial judge that he was entering into a voir dire to allege an arbitrary detention contrary to s. 9 of the Charter of Rights and Freedoms - The Alberta Court of Appeal held that the voir dire should not have been permitted - The issue of arbitrary detention should have been pursued by the calling of defence evidence after the accused elected to call evidence and within the case of the accused - The court held that the insertion of this evidence, which did not result from the alleged arbitrary detention, during an ad hoc voir dire within the Crown's case should have been discouraged - See paragraphs 13 to 15.

Cases Noticed:

R. v. Hay, [1987] 2 W.W.R. 270, refd to. [para. 7].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; 21 C.C.C.(3d) 7, refd to. [para. 11].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481, appld. [para. 16].

R. v. Collins, [1987] 5 W.W.R. 43; 74 N.R. 276; 5 C.C.C.(3d) 141; [1987] 1 S.C.R. 265, refd to. [para. 19].

R. v. Ericksen, [1984] 5 W.W.R. 577; 13 C.C.C.(3d) 269 (B.C.C.A.), refd to. [para. 19].

R. v. Dennis, Kubin and Frank (1984), 55 A.R. 366; 15 C.C.C.(3d) 527 (N.W.T.C.A.), refd to. [para. 19].

R. v. Phillips; R. v. Reid (1986), 69 A.R. 54; 44 Alta. L.R. 190 (C.A.), refd to. [para. 19].

R. v. Doyle (1976), 9 N.R. 285; 29 C.C.C.(2d) 177 (S.C.C.), refd to. [para. 33].

Abitibi Paper and The Queen (1979), 47 C.C.C.(2d) 487 (Ont. C.A.), refd to. [para. 33].

R. v. Baldinelli (1983), 70 C.C.C.(2d) 474, refd to. [para. 33].

R. v. Weightman and Cunningham (1978), 37 C.C.C.(2d) 303, refd to. [para. 33].

R. v. Billen (1981), 54 C.C.C.(2d) 425, refd to. [para. 33].

R. v. Gray (1977), 38 C.C.C.(2d) 292 (B.C.C.A.), refd to. [para. 33].

R. v. Rourke, [1978] 1 S.C.R. 1021; 16 N.R. 181, refd to. [para. 38].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487, refd to. [para. 38].

R. v. K.R.B. (1986), 53 C.R.(3d) 216 (Ont. C.A.), refd to. [para. 38].

D.P.P. v. Humphrys, [1976] 2 All E.R. 498, refd to. [para. 39].

R. v. Keel (1986), 59 Nfld. & P.E.I.R. 271; 178 A.P.R. 271, refd to. [para. 47].

R. v. Pelly, 39 M.V.R. 138 (Ont. P.C.), refd to. [para. 47].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 24(1), sect. 24(2) [para. 2].

Criminal Code, R.S.C. 1970, c. C-34, sect. 452 [para. 18]; sect. 454 [para. 43]; sect. 605(1)(c) [para. 35]; sect. 662.1 [para. 32]; sect. 739 [para. 31]; sect. 748(b)(i) [para. 34].

Authors and Works Noticed:

Taschereau, Criminal Code of Canada (Kaufman Ed.), p. 911 [para. 32].

Counsel:

J. Watson, for the appellant;

P.B. Gunn, for the respondent.

This appeal was heard before Laycraft, C.J.A., McClung, J.A., and Berger, J. (ad hoc), of the Alberta Court of Appeal.

On September 30, 1987, McClung, J.A., delivered the following judgment for the Court of Appeal.