R. v. Dombrowski, (1985) 37 Sask.R. 259 (CA)

• Judge: Hall, Tallis and Vancise, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 01, 1985
• Jurisdiction: Saskatchewan
• Citations: (1985), 37 Sask.R. 259 (CA);1985 CanLII 182 (BS SC);1985 CanLII 182 (SK CA);18 CCC (3d) 164;44 CR (3d) 1;14 CRR 165;37 Sask R 259

R. v. Dombrowski (1985), 37 Sask.R. 259 (CA)

MLB headnote and full text

R. v. Dombrowski

(No. 1441)

Indexed As: R. v. Dombrowski

Saskatchewan Court of Appeal

Hall, Tallis and Vancise, JJ.A.

February 1, 1985.

Summary:

An accused was convicted of theft, contrary to s. 294(b) of the Criminal Code of Canada. The conviction was based upon an oral admission made by the accused after being informed of his right to counsel, but before he was allowed to contact counsel, and evidence obtained pursuant to an admittedly defective search warrant. The accused appealed, submitting that the oral admission was inadmissible because it was obtained after his right to counsel was denied, that the evidence obtained pursuant to the defective search warrant was inadmissible and that the trial judge erred in limiting the accused's right to cross-examine Crown witnesses during the voir dire.

The Saskatchewan Court of Appeal allowed the appeal and acquitted the accused. The court held that both the oral admission and the evidence obtained pursuant to the search warrant were inadmissible, and that the trial judge erred in limiting the accused's right of cross-examination.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - An accused was informed of his right to retain and instruct counsel, but was not allowed to exercise that right "without delay" or at the first reasonable opportunity - The Saskatchewan Court of Appeal held that the accused's right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms was denied, and that an oral admission made to police before the accused had an opportunity to contact counsel was inadmissible - See paragraph 15.

Civil Rights - Topic 4604

Right to counsel - Denial of - What constitutes - An accused was informed of his right to retain and instruct counsel pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms, but was unjustifiably not given the opportunity to contact a lawyer "without delay" or at the first reasonable opportunity - The Saskatchewan Court of Appeal held that the accused's right to counsel was denied - See paragraphs 12 to 14.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police obtained an oral admission from an accused after violating his right to counsel under s. 10(b) of the Charter - The police also obtained evidence pursuant to a defective search warrant - The Saskatchewan Court of Appeal held that both pieces of evidence should be excluded under s. 24(2) of the Charter, because their admission would bring the administration of justice into disrepute - See paragraphs 15, 17 to 23.

Criminal Law - Topic 3041

Special powers - Search warrants - Interpretation of - The Saskatchewan Court of Appeal stated that a warrant to search a person's home must be given a strict interpretation, particularly in light of the right to be secure against unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms - See paragraph 21.

Criminal Law - Topic 3097

Special powers - Search warrants - Issue of - Contents of application for issue of - The Saskatchewan Court of Appeal stated that an application for a search warrant and the warrant itself must sufficiently particularize the place to be searched, the description of items to be seized and the offence under investigation, to enable a justice to determine if a warrant should be issued - See paragraph 20.

Criminal Law - Topic 5334

Evidence and witnesses - Confessions and voluntary statements - Voir dire - Procedure - Cross-examination - The Saskatchewan Court of Appeal stated that an accused's right to cross-examine Crown witnesses to establish the circumstances surrounding the making of an oral statement or admission should not be limited by the trial judge - The court stated that it was "essential to allow defending counsel to explore in full all relevant factors which might expose the frailty of the evidence of 'voluntariness' called by the prosecution" - See paragraph 10.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement made freely and voluntarily - The Saskatchewan Court of Appeal stated that on a voir dire the onus was on the Crown to prove beyond a reasonable doubt that an accused's statement was voluntary and that it was not obtained by a fear of prejudice or hope of advantage inspired by a person in authority and was not obtained by oppression - See paragraph 10.

Criminal Law - Topic 7631

Summary conviction proceedings - Appeals - New trials - General - An accused was convicted of theft of goods under $200.00, contrary to s. 294(b) of the Criminal Code of Canada - The conviction was based upon an oral admission and evidence obtained pursuant to a defective search warrant, both of which were later found to be inadmissible by the Saskatchewan Court of Appeal - The court held that a new trial was inappropriate where without the excluded evidence there was insufficient evidence remaining to support a conviction - See paragraph 24.

Evidence - Topic 7534

Competency of evidence - Illegally obtained evidence - Exclusion of - Disrepute of administration of justice - Police obtained an oral admission from an accused after violating his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms - The police also obtained evidence pursuant to a defective search warrant - The Saskatchewan Court of Appeal held that both pieces of evidence should be excluded under s. 24(2) of the Charter, because their admission would bring the administration of justice into disrepute - See paragraphs 15, 17 to 23.

Cases Noticed:

R. v. Precourt (1977), 36 C.R.N.S. 150 (S.C.C.), refd to. [para. 10].

Titus v. The Queen (1983), 46 N.R. 477; 2 C.C.C.(3d) 321 (S.C.C.), folld. [para. 10].

R. v. Anderson (1984), 2 O.A.C. 258; 10 C.C.C.(3d) 417 (Ont. C.A.), refd to. [para. 12].

R. v. Nelson (1983), 3 C.C.C.(3d) 147 (Man. Q.B.), agreed with [para. 13].

R. v. Lajoie (1984), 50 A.R. 140; 4 D.L.R.(4th) 491 (N.W.T.S.C.), agreed with. [para. 16].

R. v. Therens (1983), 23 Sask.R. 81; 33 C.R.(3d) 204; 5 C.C.C.(3d) 409, refd to. [para. 16].

MacIntyre v. Attorney General of Nova Scotia (1982), 40 N.R. 181 (S.C.C.), refd to. [para. 20].

Southam Inc. v. Director of Investigation and Research of the Combines Investigation Branch et al. (1983), 42 A.R. 93; 32 C.R.(3d) 141; 33 Alta. L.R.(2d) 193 (Alta. C.A.), refd to. [para. 20].

R. v. Colet, [1981] 1 S.C.R. 2; 35 N.R. 227, refd to. [para. 21].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 294(a), sect. 294(b) [para. 1]; sect. 443 [para. 19]; sect. 613(1)(b)(iii) [para. 3].

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 21]; sect. 10(b) [para. 12]; sect. 24(2) [para. 15].

Counsel:

T. White, for the appellant/accused;

C.R. Quinney, for the Crown.

This appeal was heard before Hall, Tallis and Vancise, JJ.A., of the Saskatchewan Court of Appeal.

On February 1, 1985, the following judgment was delivered by Tallis, J.A.