R. v. Kacherowski, (1977) 7 A.R. 284 (CA)

• Judge: Clement, Lieberman and Hope, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 02, 1977
• Citations: (1977), 7 A.R. 284 (CA)

R. v. Kacherowski (1977), 7 A.R. 284 (CA)

MLB headnote and full text

R. v. Kacherowski

Indexed As: R. v. Kacherowski

Alberta Supreme Court

Appellate Division

Clement, Lieberman and Hope, JJ.A.

November 2, 1977.

Summary:

This case arose out of a charge of engaging in the business of betting. During the trial of the accused the trial judge ruled that the Crown was bound to call as witnesses in a voir dire all persons in authority who were present when the accused made an alleged voluntary statement. The Crown did not call one of the two police officers who was present when the accused made a statement. The trial judge ruled that the Crown had failed to prove that the statement was voluntary, because of the failure to call the other police officer. The accused was acquitted and the Crown appealed on the ground that the trial judge erred in his ruling.

The Alberta Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial. The Court of Appeal held that the Crown was not bound in all circumstances to call as witnesses in a voir dire all people in authority who were present when the accused made the statement - see paragraphs 13 to 21.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - What constitutes a question of law alone - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 605(1)(a) - The trial judge ruled that the Crown was bound to call as witnesses in a voir dire all persons in authority who were present when the accused made an alleged voluntary statement - The Crown appealed from the ruling - The Alberta Court of Appeal held that the issue was a question of law alone on which the Crown could appeal - See paragraphs 11 to 12.

Criminal Law - Topic 5355

Evidence - Confessions and voluntary statements - Proof of voluntariness - Witnesses - The Alberta Court of Appeal held that in a voir dire to determine the admissibility of an alleged voluntary statement the Crown was not bound in all circumstances to call as witnesses all people in authority who were present when the accused made the statement - See paragraphs 13 to 21.

Cases Noticed:

R. v. Murakami, [1951] 1 W.W.R. 742, affd. [1951] S.C.R. 801, folld. [para. 11].

R. v. Beaulieu (1967), 59 W.W.R.(N.S.) 688, folld. [para. 11].

Sankey v. The King (1927), 48 C.C.C. 97, consd. [para. 15].

Thiffault v. The King (1933), 60 C.C.C. 97, consd. [para. 17].

R. v. Settee (1975), 22 C.C.C.(2d) 193, consd. [para. 18].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 605(1)(a) [para. 11].

Counsel:

J. Watson, for the Crown;

Respondent in person.

This case was heard before CLEMENT, LIEBERMAN and HOPE, JJ.A., of the Alberta Supreme Court, Appellate Division.

On November 2, 1977, LIEBERMAN, J.A., delivered the following judgment for the Appellate Division: