R. v. Gerun (O.D.), (2009) 479 A.R. 258 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 30, 2009
• Citations: (2009), 479 A.R. 258 (PC);2009 ABPC 224

R. v. Gerun (O.D.) (2009), 479 A.R. 258 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. OC.001

Her Majesty The Queen v. Owen Douglas Gerun (081393415P1; 2009 ABPC 224)

Indexed As: R. v. Gerun (O.D.)

Alberta Provincial Court

Allen, P.C.J.

July 30, 2009.

Summary:

At issue on this voir dire was whether the accused's videotaped statement to police was obtained in violation of his Charter rights under s. 10(a) (informed promptly of reason for arrest or detention) or s. 10(b) (right to counsel). The Crown conceded that if the accused's Charter rights were violated, the statement should be excluded from evidence under s. 24(2) of the Charter.

The Alberta Provincial Court ruled that the statement was made freely and voluntarily, but the accused's s. 10(b) right to counsel was denied. The court ordered that the statement be excluded from evidence under s. 24(2).

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused, a passenger in a stolen truck that contained stolen property, was arrested for possession of stolen property and properly advised of his right to counsel, including free legal aid - The accused expressed a desire to call a "free lawyer" - At the police station, rather than being afforded an opportunity to call a "free lawyer", the accused was given a choice to call a lawyer or discuss things first - The accused first wished to know the charges against him - The officer explained the charges, then began questioning him - The interrogation shifted to other offences (for which the accused was not arrested) the accused was suspected of committing - The right to counsel was not repeated - In the course of rejecting involvement in any of those other thefts, the accused implicated himself in thefts for which he was arrested - The Alberta Provincial Court held that there was a fundamental and discrete change in the purpose of the interview when the officer began to question the accused respecting other offences unrelated to the offences for which he had been arrested - At that time, the officer had a duty to re-advise the accused of his right to counsel - The accused's s. 10(b) Charter right to counsel was also denied when the officer started questioning him without first giving him an opportunity to call a "free lawyer", as the accused had requested - Offering him a choice to call a lawyer or talk to the officer breached the implementation duties of the police - There was no clear and unequivocal waiver of the right to counsel (no Prosper warning and agreement to waive right to counsel) - The court excluded the accused's videotaped statement under s. 24(2) of the Charter.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 13].

R. v. Singh (J.) (2007), 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 225 C.C.C.(3d) 103 (S.C.C.), refd to. [para. 18].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 32].

R. v. Logan, Logan and Johnson (1989), 30 O.A.C. 321; 46 C.C.C.(3d) 354 (C.A.), affd. [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330, refd to. [para. 33].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 34].

R. v. Schmautz, [1990] 1 S.C.R. 398; 106 N.R. 81, refd to. [para. 34].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 34].

R. v. Paternak (C.D.), [1996] 3 S.C.R. 607; 203 N.R. 250; 187 A.R. 395; 127 W.A.C. 395, refd to. [para. 34].

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. 38].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571 (C.A.), refd to. [para. 39].

R. v. Korponey, [1982] 1 S.C.R. 41; 44 N.R. 103, refd to. [para. 43].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, refd to. [para. 43].

R. v. L.T.H. (2008), 379 N.R. 247; 268 N.S.R.(2d) 200; 857 A.P.R. 200; 2008 SCC 49, refd to. [para. 49].

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. 43].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 44].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 50].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 61].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 62].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 62].

Counsel:

J.P. Quenneville, for the Crown;

A.M. Boyd, for the accused.

This voir dire was held at Edmonton, Alberta, before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on July 30, 2009.