R. v. Delaa (W.), (2010) 490 A.R. 261 (CA)

• Judge: Hunt, Paperny and Ritter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 26, 2010
• Citations: (2010), 490 A.R. 261 (CA);2010 ABCA 332

R. v. Delaa (W.) (2010), 490 A.R. 261 (CA);

      497 W.A.C. 261

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. NO.040

Her Majesty the Queen (respondent) v. Wafid Delaa (appellant)

(0701-0312-A; 2010 ABCA 332)

Indexed As: R. v. Delaa (W.)

Alberta Court of Appeal

Hunt, Paperny and Ritter, JJ.A.

November 5, 2010.

Summary:

The accused was convicted of two sexual assaults. The sentencing judge found that he was a dangerous offender. The accused appealed his conviction. He argued that the act of spitting his chewing gum into a Dixie cup during an undercover police operation to obtain his DNA evidence constituted an illegal search violating his s. 8 Charter rights and that the evidence obtained as a result should not have been admitted at trial. The trial judge found the accused discarded the gum as garbage, and thus there was no reasonable expectation of privacy.

The Alberta Court of Appeal, in a decision reported at 457 A.R. 118; 457 W.A.C. 118, dismissed the appeal. The trial judge made no reversible error in concluding that there was no Charter breach. The accused sought leave to appeal.

The Supreme Court of Canada, in a decision reported at 402 N.R. 396, denied the motion. The accused appealed his designation as a dangerous offender.

The Alberta Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Evidence and proof - The accused, who arrived illegally in Canada in 1997, was convicted of two vicious sexual assaults and designated a dangerous offender - He appealed the designation, arguing that there was an issue as to his ability to understand and communicate with doctors and other professionals in English - Therefore, the sentencing judge erred in failing to appreciate his limited English language ability and its impact on the accuracy and reliability of the expert reports - The Alberta Court of Appeal rejected the argument - At sentencing, his counsel submitted that the accused's English comprehension abilities would not be a barrier to treatment - No suggestion was made during sentencing proceedings that the assessments were flawed because of the accused's ability in English - His counsel conceded that the sexual deviancy test was not a legal requirement - The evidence as to his capability in English was, at best, mixed - The court could not conclude that there was any error that would vitiate these proceedings or the sentencing judge's conclusions - See paragraphs 13 to 19.

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Evidence and proof - The accused was convicted of two vicious sexual assaults and designated a dangerous offender - He appealed the designation, arguing that the sentencing judge erred in relying on expert reports characterizing the accused's denial of the offences as indicative of his lack of treatability - He argued that his refusal to acknowledge guilt before his right of appeal was exhausted should not lead to a negative inference against him in sentencing - The Alberta Court of Appeal rejected the arguments - The experts did not conclude that the accused was untreatable - The accused was exercising a right to silence - Rather, his initial stance was one of denial rather than silence - His late acknowledgment of guilt was voluntary and made when he said he did not intend to appeal - See paragraphs 20 to 26.

Cases Noticed:

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 5].

R. v. Crane (D.L.) (2010), 477 A.R. 172; 483 W.A.C. 172; 2010 ABCA 130, refd to. [para. 12].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161; 115 C.C.C.(3d) 205, refd to. [para. 12].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 129 D.L.R.(4th) 657, refd to. [para. 22].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 28].

Counsel:

J.A. Antonio, for the respondent;

K.B. Molle and K. Sitar, for the appellant.

This appeal was heard on October 26, 2010, before Hunt, Paperny and Ritter, JJ.A., of the Alberta Court of Appeal, who filed the following memorandum of judgment on November 5, 2010.