R. v. Karim (M.A.) et al., 2012 ABQB 470

JudgeHughes, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateJune 18, 2012
Citations2012 ABQB 470;(2012), 546 A.R. 57 (QB)

R. v. Karim (M.A.) (2012), 546 A.R. 57 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JL.125

Her Majesty the Queen (Crown) v. Mohamed Ali Karim and Robert Elliot Deer (accused)

(060508074Q1; 2012 ABQB 470)

Indexed As: R. v. Karim (M.A.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hughes, J.

July 20, 2012.

Summary:

Beauchamp was shot to death in his office. Police received information from Beauchamp's coworkers and family that he had received threats from Deer. Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder. Police obtained and executed a warrant to search Deer's home and vehicle. At trial, Deer asserted that his rights under ss. 7, 8 and 9 of the Charter had been violated and sought exclusion of the evidence obtained as a result of the violations under s. 24(2) of the Charter.

The Alberta Court of Queen's Bench dismissed the application.

Editor's Note: For decisions related to these accused, see (2008), 439 A.R. 358, (2008), 439 A.R. 360 and [2009] A.R. Uned. 137.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - At trial, he asserted, inter alia, that his arrest and detention violated his rights under ss. 7, 8 and 9 of the Charter - The Alberta Court of Queen's Bench held that Deer's arrest for uttering threats was lawful - On the basis of the elements of the offence and the evidence, the officer had the required subjective belief to arrest Deer - Further, a reasonable person could have inferred that the emails received by Beauchamp from Deer were perceived by Beauchamp as threatening to cause some sort of harm to him - It was significant that Beauchamp had warned his daughter and coworkers about Deer - This established the required objective grounds for the arrest - See paragraphs 11 to 24.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - At trial, he asserted, inter alia, that his arrest and detention violated his rights under ss. 7, 8 and 9 of the Charter - The Alberta Court of Queen's Bench, having found that Deer's arrest for uttering threats was lawful, rejected the argument that his subsequent arrest for murder made the prior lawful arrest unlawful - Deer was lawfully arrested for uttering threats - By arresting Deer for murder, the officer was complying with his Charter duty to inform a detained person of the true extent of his or her jeopardy - See paragraphs 25 to 28.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - At trial, he asserted, inter alia, that his arrest and detention violated his rights under ss. 7, 8 and 9 of the Charter - The Alberta Court of Queen's Bench, having found that Deer's arrest for uttering threats was lawful, rejected the argument that the intention of the police to continue the investigation on both the threats offence and the murder offence after Deer's arrest invalidated the initial arrest - Police could investigate a further or second offence after an accused was arrested on a first offence as long as the further investigation was not for an improper purpose - There was a nexus between the two investigations - The victim was the same - The suspect was the same - Deer's emails in the uttering threats investigation provided a motive in the murder investigation - One of the purposes of the uttering threats arrest was to investigate the murder - The arrest was not a "ruse nor for an improper purpose" - See paragraphs 29 to 41.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - Police obtained a warrant to search Deer's home and vehicle - The warrant authorized a search between 7 p.m. on January 16 and 11:59 p.m. on January 17 - Officers entered Deer's home at 9:46 p.m. on January 16 - At trial, Deer asserted, inter alia, that the search of his home and vehicle violated s. 8 of the Charter - The Alberta Court of Queen's Bench rejected Deer's argument that the search was unreasonable because the warrant did not authorize a search at night - The warrant clearly authorized two "night" periods - There was evidence before the issuing justice that allowed him to infer that the information to obtain (ITO) the warrant requested that the warrant be executed at "night" - There were reasonable grounds for it to be executed at night - Further, Deer, the home's sole occupant, was in police custody - Concerns regarding a search by police of a home at night when the occupants could be expected to be sleeping were not present - The ITO and the warrant both satisfied the requirements of s. 488 of the Criminal Code - See paragraphs 137 to 153.

Civil Rights - Topic 1559

Property - Land - Search and seizure by police - [See Civil Rights - Topic 1556 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1556 and Criminal Law - Topic 3193 ].

 Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See second Civil Rights - Topic 1262 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - He was interviewed by police for approximately 12 hours - The interview concluded at 5:28 a.m., after which Deer was placed in a cell with an undercover officer - Deer was released at 9:58 a.m. - At trial, he asserted, inter alia, that his arrest and detention violated his rights under ss. 7, 8 and 9 of the Charter - The Alberta Court of Queen's Bench rejected the argument that Deer had been arbitrarily detained when he was placed in the cell with the undercover officer - Deer was kept in custody so that the investigation could continue - The delay in bringing Deer before a justice was not unreasonable and did not offend either s. 503 of the Criminal Code or s. 9 of the Charter - See paragraphs 42 to 47.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See second Civil Rights - Topic 1262 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - At trial, he asserted, inter alia, that his arrest and detention violated his rights under ss. 7, 8 and 9 of the Charter - The Crown conceded that an "inventory search" of Deer's wallet during which an officer seized a TD Canada Trust withdrawal slip was an unreasonable search, contrary to s. 8 of the Charter - See paragraphs 48 to 51 - The Alberta Court of Queen's Bench held that the withdrawal slip was admissible evidence under s. 24(2) of the Charter - Had the officer addressed his mind to the law regarding a search that was incidental to arrest, he would have been able to conduct a valid search in that he could have searched Deer's wallet for information connecting Deer to Beauchamp - This should be classified as a technical breach with a minimal impact on Deer's Charter-protected interests - The evidence ought to be available for whatever relevance it had in the resolution of the case - See paragraphs 178 to 182.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - Police obtained a warrant to search Deer's home and vehicle - At trial, Deer asserted, inter alia, that the search of his home and vehicle violated s. 8 of the Charter - The Alberta Court of Queen's Bench, having found that a breach of s. 8 arose from the failure of the police to make a "report to justice" regarding items seized in the search as required by s. 489.1(1)(b)(ii) of the Criminal Code, held that the evidence seized under the search warrant was admissible evidence under s. 24(2) of the Charter - The oversight in failing to file the report could not be characterized as "serious misconduct" - However, the breach had made an authorized search of a home and vehicle unreasonable - While the breach was serious, that seriousness was reduced because the police were acting under a valid search warrant at the time - The evidence was reliable and its exclusion would undermine the Crown's case - The balance of the factors in the s. 24(2) analysis favoured admission of the evidence - See paragraphs 183 to 191.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - Police obtained a warrant to search Deer's home and vehicle - At trial, Deer asserted, inter alia, that the search of his home and vehicle violated s. 8 of the Charter - The Alberta Court of Queen's Bench rejected Deer's argument that the search warrant only allowed for the seizure of his computers and not for the examination of their contents - The warrant was issued in 2006 - Based on the applicable law at that time (R. v. Weir (D.T.), 2001 Alta. C.A.), the search warrant allowed the police to seize the computers and search their contents after the warrant was executed - See paragraphs 121 to 130.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - [See Criminal Law - Topic 3098 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - [See Civil Rights - Topic 1556 ].

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - Police obtained a warrant to search Deer's home and vehicle - At trial, Deer asserted, inter alia, that the search of his home and vehicle violated s. 8 of the Charter - The Alberta Court of Queen's Bench held that there was sufficient credible and reliable evidence to permit the issuing justice to authorize the warrant - The information before the issuing justice was that there had been a business conflict between Beauchamp and Deer, Deer had threatened Beauchamp and Beauchamp took the threats seriously, Deer had access to firearms, Deer had a computer in his home and some of the threats had been sent by email and, finally, Deer was located in his vehicle when he arrived at his home and was arrested just three hours after the shooting - This information established reasonable grounds to believe that there was evidence to be found at Deer's home or vehicle - See paragraphs 113 to 120.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - Police obtained a warrant to search Deer's home and vehicle - At trial, Deer asserted, inter alia, that the search of his home and vehicle violated s. 8 of the Charter - The Alberta Court of Queen's Bench held that there was sufficient credible and reliable evidence to permit the issuing justice to authorize the warrant - While some erroneous information was excised from the information to obtain (ITO) the warrant, the court did not agree that the ITO was incomplete, misleading and/or misrepresented the investigation because the officer who completed it was "sequestered" from the investigation, allowing the police to "pick and choose" the relevant facts for the ITO - The omissions complained of by Deer did not constitute "material non-disclosure at the time the police applied for the search warrant" - See paragraphs 69 to 112.

Criminal Law - Topic 3098

Special powers - Issue of search warrants - Contents of search warrant - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - Police obtained a warrant to search Deer's home and vehicle - At trial, Deer asserted, inter alia, that the search of his home and vehicle violated s. 8 of the Charter - The Alberta Court of Queen's Bench rejected the argument that the search warrant was "over broad" - The search warrant was for "things" that would afford evidence that Deer had unlawfully caused Beauchamp's death - The places to be searched were Deer's home and vehicle - The warrant adequately described the specific list of "things" to be searched for - There was a temporal limit to the search - Nothing suggested that the police conducted a carte blanche search pursuant to an overly-broad warrant - See paragraphs 131 to 136.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See Criminal Law - Topic 3097 ].

Criminal Law - Topic 3193

Special powers - Setting aside search warrants - Grounds - Failure to file report to a justice respecting search - Beauchamp was shot to death in his office - Police received information from Beauchamp's coworkers and family that he had received threats from Deer - Deer was arrested without a warrant, first, for uttering threats and, subsequently, for murder - Police obtained a warrant to search Deer's home and vehicle - At trial, Deer asserted, inter alia, that the search of his home and vehicle violated s. 8 of the Charter - The Alberta Court of Queen's Bench found that a breach of s. 8 arose from the failure of the police to make a "report to justice" regarding items seized in the search as required by s. 489.1(1)(b)(ii) of the Criminal Code - The case law was divided on the issue of whether the failure to file the report rendered an otherwise lawful search unlawful - While the court expressed concern with the authorities that suggested that the failure to file a report made an otherwise valid search unreasonable "in light of the temporal break in time, and the various interests at play", given the division in the authorities, the court opted to assume a breach and consider the issue in s. 24(2) of the Charter analysis - See paragraphs 154 to 170.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See all Civil Rights - Topic 1262 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 3603 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See third Civil Rights - Topic 1262 and Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 16].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176 (C.A.), refd to. [para. 17].

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. 26].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 26].

R. v. Nelson (D.A.) (2010), 490 A.R. 271; 497 W.A.C. 271; 2010 ABCA 349, refd to. [para. 27].

Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126 (C.A.), refd to. [para. 33].

R. v. Dhuna (K.S.) (2009), 448 A.R. 296; 447 W.A.C. 296; 2009 ABCA 103, refd to. [para. 35].

R. v. Nolet (R.) et al. (2010), 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, folld. [para. 36].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 50].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 50].

R. v. Vu (T.L.) (2011), 315 B.C.A.C. 36; 535 W.A.C. 36; 2011 BCCA 536, leave to appeal granted [2012] S.C.C.A. No. 94, refd to. [para. 61].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 61].

CanadianOxy Chemicals Ltd. et al. v. Canada (Attorney General) et al., [1999] 1 S.C.R. 743; 237 N.R. 373; 122 B.C.A.C. 1; 200 W.A.C. 1, refd to. [para. 61].

R. v. Canadian Broadcasting Corp. (1992), 77 C.C.C.(3d) 341 (Ont. Gen. Div.), refd to. [para. 61].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 62].

R. v. Morris (W.R.) (1998), 173 N.S.R.(2d) 1; 527 A.P.R. 1 (C.A.), refd to. [para. 63].

R. v. Durling (J.C.) (2006), 249 N.S.R.(2d) 229; 792 A.P.R. 229; 2006 NSCA 124, refd to. [para. 64].

R. v. Turcotte (1987), 60 Sask.R. 289; 39 C.C.C.(3d) 193 (C.A.), refd to. [para. 65].

R. v. Du (B.B.), 2004 ABQB 849, refd to. [para. 66].

R. v. Soloway and Mills (1930), 24 Alta. L.R. 410 (C.A.), refd to. [para. 66].

R. v. Campbell (N.M.) (2011), 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 67].

R. v. Dionisi (A.P.) (2012), 519 A.R. 313; 539 W.A.C. 313; 2012 ABCA 20, refd to. [para. 68].

R. v. Weir (D.T.) (2001), 281 A.R. 333; 248 W.A.C. 333; 2001 ABCA 181, refd to. [para. 78].

R. v. N.M., [2007] O.T.C. Uned. H01; 223 C.C.C.(3d) 417 (Sup. Ct.), refd to. [para. 82].

R. v. Franko (T.) (2012), 541 A.R. 23; 2012 ABQB 282, refd to. [para. 123].

R. v. Ballendine (K.D.) (2011), 304 B.C.A.C. 20; 513 W.A.C. 20; 2011 BCCA 221, refd to. [para. 125].

R. v. Jones (R.) (2011), 285 O.A.C. 25; 2011 ONCA 632, refd to. [para. 126].

R. v. Sutherland (M.) (2000), 139 O.A.C. 53; 150 C.C.C.(3d) 231 (C.A.), dist. [para. 148].

R. v. Brown (M.O.) et al. (2008), 451 A.R. 1; 2008 ABQB 663, folld. [para. 151].

R. v. Guiller (1985), 25 C.R.R. 273 (Ont. Dist. Ct.), refd to. [para. 163].

R. v. Noseworthy, [1995] O.J. No. 1759 (Gen. Div.), refd to. [para. 164].

R. v. MacNeil (M.) (1994), 130 N.S.R.(2d) 202; 367 A.P.R. 202 (S.C.), refd to. [para. 164].

R. v. Spencer (M.D.) (2009), 361 Sask.R. 1; 2009 SKQB 341, refd to. [para. 165].

R. v. Martens (E.M.), [2004] B.C.T.C. 1450; 2004 BCSC 1450, refd to. [para. 165].

R. v. Valiquette (J.A.), [2010] B.C.T.C. Uned. 1423; 2010 BCSC 1423, refd to. [para. 165].

R. v. Paterson (B.W.), [2011] B.C.T.C. Uned. 1728; 2011 BCSC 1728, refd to. [para. 165].

R. v. Arason (R.H.) and Derosier (G.L.) (1992), 21 B.C.A.C. 20; 37 W.A.C. 20 (C.A.), refd to. [para. 166].

R. v. Bérubé et al. (1999), 139 C.C.C.(3d) 304 (Que. C.A.), refd to. [para. 167].

R. v. Dauphinee (D.L.), [2004] B.C.T.C. 187; 2004 BCSC 187, refd to. [para. 168].

R. v. Tam (R.K.N.) et al. (1995), 61 B.C.A.C. 40; 100 W.A.C. 40 (C.A.), refd to. [para. 170].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 172].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 175].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 175].

R. v. Côté (A.) (2011), 421 N.R. 112; 2011 SCC 46, refd to. [para. 175].

Counsel:

M. Ewenson, for the Crown;

C.I. Gonzalez, for the Crown;

A. Iovinelli, for the accused, Karim;

S.Y. Kothari, for the accused, Karim;

J.M. Lutz, for the accused, Deer;

A.L. Serink, for the accused, Deer.

This voir dire was heard between May 30 and June 18, 2012, by Hughes, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for decision on July 20, 2012.

To continue reading

Request your trial
3 practice notes
  • R v Barton,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 28, 2020
    ...v Lefave, 2003 CarswellOnt 3772; R v Mann, 2012 BCSC 1247 (reversed on appeal, 2014 BCCA 231); Franko; R v Cater, 2012 NSPC 2; R v Karim, 2012 ABQB 470; R v Ballendine, 2011 BCCA 221 at paras 64-70. Other cases held that a warrant must be obtained after a lawful seizure: R v Polius, 2009 Ca......
  • Canada (Attorney General) v. Mathurin, 2015 ONCA 581
    • Canada
    • Ontario Court of Appeal (Ontario)
    • December 12, 2014
    ...refd to. [para. 32]. R. v. J.T. (2006), 313 N.B.R.(2d) 1; 809 A.P.R. 1; 2006 NBPC 35, refd to. [para. 32]. R. v. Karim (M.A.) et al. (2012), 546 A.R. 57; 2012 ABQB 470, refd to. [para. Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106......
  • R. v. Marek (M.), 2016 ABQB 18
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 7, 2016
    ...Form 5 warrants would become meaningless. [110] The amicus noted that neither of the more recent decisions of this Court in R v Karim , 2012 ABQB 470, 546 AR 57 or R v Villaroman , 2012 ABQB 630, 557 AR 1, rev'd on other grounds, 2015 ABCA 104, leave to appeal to SCC granted, [2015] SCCA No......
3 cases
  • Canada (Attorney General) v. Mathurin, 2015 ONCA 581
    • Canada
    • Ontario Court of Appeal (Ontario)
    • December 12, 2014
    ...refd to. [para. 32]. R. v. J.T. (2006), 313 N.B.R.(2d) 1; 809 A.P.R. 1; 2006 NBPC 35, refd to. [para. 32]. R. v. Karim (M.A.) et al. (2012), 546 A.R. 57; 2012 ABQB 470, refd to. [para. Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106......
  • R v Barton,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 28, 2020
    ...v Lefave, 2003 CarswellOnt 3772; R v Mann, 2012 BCSC 1247 (reversed on appeal, 2014 BCCA 231); Franko; R v Cater, 2012 NSPC 2; R v Karim, 2012 ABQB 470; R v Ballendine, 2011 BCCA 221 at paras 64-70. Other cases held that a warrant must be obtained after a lawful seizure: R v Polius, 2009 Ca......
  • R. v. Marek (M.), 2016 ABQB 18
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 7, 2016
    ...Form 5 warrants would become meaningless. [110] The amicus noted that neither of the more recent decisions of this Court in R v Karim , 2012 ABQB 470, 546 AR 57 or R v Villaroman , 2012 ABQB 630, 557 AR 1, rev'd on other grounds, 2015 ABCA 104, leave to appeal to SCC granted, [2015] SCCA No......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT