R. v. Gregoire (R.P.) et al., 2005 ABQB 57

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 29, 2004
• Citations: 2005 ABQB 57;(2005), 374 A.R. 306 (QB)

R. v. Gregoire (R.P.) (2005), 374 A.R. 306 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. FE.108

Her Majesty the Queen (Crown) v. Robert Paul Gregoire and Tamara Dawn Newton (accused)

(030184154Q1; 2005 ABQB 57)

Indexed As: R. v. Gregoire (R.P.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

January 28, 2005.

Summary:

Two accused were charged with a series of offenses including the unlawful production and possession of methamphetamine for the purpose of trafficking, and possession of stolen property. At issue was the admissibility of statements made by the accused while in police custody.

The Alberta Court of Queen's Bench held that the statements were inadmissible as evidence because the court had a reasonable doubt as to their voluntariness.

Criminal Law - Topic 5209

Evidence - Witnesses - Admissibility and relevancy - Prejudicial evidence - The Alberta Court of Queen's Bench held that statements made by two accused after their arrest were inadmissible as evidence - The court had a reasonable doubt as to their voluntariness where, inter alia, the interviewing constable failed to record any of the questions that she asked the accused and her notes only paraphrased their answers, violating the rule of "completeness" - The lack of a record was such that the potential prejudice caused by the admission of the statements outweighed their probative value - This second ground of exclusion had been referred to as the "adjudicative fairness" rationale - See paragraphs 26 to 31.

Criminal Law - Topic 5336.1

Evidence and witnesses - Confessions and voluntary statements - Recording or videotaping interrogation - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 5351

Evidence and witnesses - Confessions and voluntary statements - Confessions excluded due to prejudicial effect - [See Criminal Law - Topic 5209 ]

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The Alberta Court of Queen's Bench held that statements made by two accused after their arrest were inadmissible as evidence - The court had a reasonable doubt as to their voluntariness where, firstly, the interviewing constable failed to record any of the questions that she asked the accused and her notes only paraphrased their answers, violating the rule of "completeness" - This was especially so where the statements were not otherwise videotaped or audio recorded, even though it had been entirely feasible to do so - Secondly, the police failed to keep track of the two accused after they were booked in at the police station upon their arrest (no continuous chain of custody) - Thirdly, the court had a reasonable doubt as to whether one accused, who had admitted to having taken speed an hour earlier, knew what he was saying and was aware that the police would use his statements as evidence against him.

Criminal Law - Topic 5359.1

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

Cases Noticed:

R. v. Howard and Trudel (1983), 3 C.C.C.(3d) 399 (Ont. C.A.), refd to. [para. 23].

R. v. T.E. - see R. v. L.R.I. and E.T.

R. v. L.R.I. and E.T., [1993] 4 S.C.R. 504; 159 N.R. 363; 37 B.C.A.C. 48; 60 W.A.C. 48, refd to. [para. 35].

R. v. Ferris (J.M.), [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108; 34 C.R.(4th) 26; 1994 CarswellAlta 750, appld. [para. 28].

R. v. Ferris (J.M.) (1994), 149 A.R. 1; 63 W.A.C. 1; 27 C.R.(4th) 141 (C.A.), refd to. [para. 30].

R. v. D.J.M. (2003), 343 A.R. 11 (Q.B.), refd to. [para. 31].

R. v. R.J.S. (1996), 154 N.S.R.(2d) 118; 452 A.P.R. 118; 110 C.C.C.(3d) 535 (C.A.), leave to appeal refused [1997] 2 S.C.R. xv; 227 N.R. 286; 169 N.S.R.(2d) 151; 508 A.P.R. 151, refd to. [para. 37].

R. v. Genaille (G.T.) (1997), 118 Man.R.(2d) 114; 149 W.A.C. 114; 116 C.C.C.(3d) 459 (C.A.), leave to appeal refused [1997] 3 S.C.R. ix; 225 N.R. 234; 124 Man.R.(2d) 80, refd to. [para. 37].

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

R. v. Wert (1979), 12 C.R.(3d) 254 (B.C.C.A.), refd to. [para. 37].

R. v. Settee (1975), 22 C.C.C.(2d) 193 (Sask. C.A.), refd to. [para. 37].

R. v. Garfield (1975), 21 C.C.C.(2d) 449 (Ct. Martial App. Ct.), refd to. [para. 37].

R. v. Kelly, [2004] HCA 12 (Aus. H.C.), refd to. [para. 40].

R. v. Moore-McFarlane (G.C.) et al. (2001), 152 O.A.C. 120; 160 C.C.C.(3d) 493; 56 O.R.(3d) 737; 47 C.R.(5th) 203 (C.A.), refd to. [para. 40].

R. v. Ahmed (A.) (2002), 166 O.A.C. 254; 170 C.C.C.(3d) 27; 7 C.R.(6th) 308; 2002 CarswellOnt 4075 (C.A.), refd to. [para. 40].

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; 147 C.C.C.(3d) 321; 190 D.L.R.(4th) 257; 36 C.R.(5th) 1; 2000 SCC 38, refd to. [para. 40].

R. v. Ducharme (K.A.) (2004), 184 Man.R.(2d) 36; 318 W.A.C. 36; 2004 CarswellMan 66; 2004 MBCA 29, leave to appeal refused (2004), 330 N.R. 395; 195 Man.R.(2d) 158; 351 W.A.C. 158; 2004 CarswellMan 220 (S.C.C.), refd to. [para. 40].

R. v. White (K.G.), [2003] O.A.C. Uned. 221; 176 C.C.C.(3d) 1; 65 O.R.(3d) 97; 16 C.R.(6th) 162; 2003 CarswellOnt 2330 (C.A.), refd to. [para. 40].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201; 116 D.L.R.(4th) 416; 92 C.C.C.(3d) 11; 32 C.R.(4th) 1; 23 C.R.R.(2d) 6, refd to. [para. 48].

Counsel:

Patricia Giroux (Department of Justice), for the Crown;

Gordon W. Collins, for the accused, Robert Paul Gregoire;

J. MacLeod Walker, for the accused, Tamara Dawn Newton.

This application was heard on November 29, 2004, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on January 28, 2005.