R. v. Leitch (R.A.), (2010) 497 A.R. 60 (PC)

• Judge: Wenden, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 22, 2010
• Citations: (2010), 497 A.R. 60 (PC);2010 ABPC 208

R. v. Leitch (R.A.) (2010), 497 A.R. 60 (PC)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AU.051

Her Majesty The Queen v. Robert Alexander Leitch (090474750P1; 2010 ABPC 208)

Indexed As: R. v. Leitch (R.A.)

Alberta Provincial Court

Wenden, P.C.J.

June 22, 2010.

Summary:

The accused was charged in relation to drinking and driving. Defence counsel applied for permission to have a voir dire, alleging breaches of the accused's ss. 8, 9 and 10(b) Charter rights.

The Alberta Provincial Court denied the application.

Civil Rights - Topic 8582

Canadian Charter of Rights and Freedoms - Practice - Charter application - Grounds for precluding - [See both Civil Rights - Topic 8587.1 ].

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - The accused was charged in relation to drinking and driving - Defence counsel applied for permission to have a voir dire, alleging breaches of the accused's ss. 8, 9 and 10(b) Charter rights - The Alberta Provincial Court denied the application - The court stated, inter alia, that "The position taken by defence counsel, in her Notice, oral submissions, and written submissions makes it manifestly clear that the Charter notice is preemptive, and has no basis in fact. No adjudicative facts were contained in the notice, not even a date was alleged. All efforts to elicit the adjudicative facts from defence counsel were of no avail. The 'who did what, where, when how and with what motive or intent' were not mentioned in the notice nor were they disclosed in oral submissions. To allow defence counsel to enter into a voir dire under the present circumstances is tantamount to allowing a voir dire where no facts are alleged. This would result in a wide open and far ranging questioning of the witness that has no parameters nor apparent focus. Both the Court and the Crown would be put in a position where they would be hard pressed to respond to the allegations of a Charter breach. In the end, judicial time and resources would be wasted. The application is dismissed on this ground" - See paragraphs 41 to 53.

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - The accused was charged in relation to drinking and driving - Defence counsel applied for permission to have a voir dire, alleging breaches of the accused's ss. 8, 9 and 10(b) Charter rights - The Alberta Provincial Court denied the application - The court stated, inter alia, "Only if the Court has a good understanding of what is at stake in the voir dire can it discharge its obligation. The understanding comes from the Charter notice, thus it behooves counsel to file a detailed Notice ... In the present case, there was an absence of detail in the Charter Notice, and defence counsel was unwilling to give more detail when asked by the Court to do so. The Notice was not adequate, and certainly did not meet the requirements set out in Dwernychuk. The application is dismissed on this ground" - See paragraphs 54 to 83.

Civil Rights - Topic 8590.1

Canadian Charter of Rights of Freedoms - Practice - Voir dire - Procedure - The accused was charged in relation to drinking and driving - Defence counsel applied for permission to have a voir dire, alleging breaches of the accused's ss. 8, 9 and 10(b) Charter rights - The Alberta Provincial Court denied the application - The court considered the issue of whether it could dismiss a motion for a voir dire without hearing evidence - The court stated that "The courts have long recognized that a Charter voir dire need not be held if counsel cannot state with reasonable particularity the reasons for having a voir dire. Having said that, given the importance of an application to have evidence excluded under section 24(2) it ought not be denied lightly" - The court further stated that "In the present case, defence counsel was not able to give any factual details about the alleged section 8 and 10(b) Charter breaches. This is not a situation where the Charter violation arose ex improvio. Defence counsel had Crown disclosure, and in her oral submissions made mention of that fact. As mentioned, she did not seek an adjournment so that she might flesh out the Notice. The application to have a Charter voir dire on these two sections is dismissed. With respect to the alleged 11(b) breaches, her submissions do not persuade me that there has been a section 11(b) breach. There was no evidence called as to what prejudice the accused has suffered. As for the allegation of institutional delay, no evidence was filed to substantiate this allegation ... Defence counsel's application to have a voir dire on an alleged s. 11(b) breach is, therefore, dismissed as well" - See paragraphs 84 to 98.

Cases Noticed:

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 44].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 46].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 55].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31; 77 C.C.C.(3d) 385; 1992 CarswellAlta 263 (C.A.), refd to. [para. 58].

R. v. MacLeod (M.W.), [2001] 7 W.W.R. 176; 283 A.R. 218 (Prov. Ct.), refd to. [para. 65].

R. v. Baker (D.F.) (2004), 374 A.R. 230; 2004 ABPC 218, refd to. [para. 65].

R. v. Bull (T.F.) (2010), 491 A.R. 335; 2010 ABPC 68, refd to. [para. 66].

R. v. Mousseau (T.M.) (2002), 324 A.R. 42; 2002 ABQB 150, refd to. [para. 70].

R. v. Wiebe (R.K.) (2007), 423 A.R. 1; 2007 ABPC 47, refd to. [para. 70].

R. v. Callahan (S.L.) (2008), 455 A.R. 54; 2008 ABQB 324, refd to. [para. 70].

R. v. Lansdell (C.L.) (2009), 478 A.R. 186; 2009 ABPC 355, refd to. [para. 70].

R. v. A.K., [2005] A.R. Uned. 202; 2005 ABCA 166, refd to. [para. 70].

R. v. Blom (E.) (2002), 162 O.A.C. 238; 61 O.R.(3d) 510 (C.A.), refd to. [para. 70].

R. v. Loveman (1992), 52 O.A.C. 94; 71 C.C.C.(3d) 123 (C.A.), refd to. [para. 84].

R. v. Kutynec (1992), 52 O.A.C. 59; 1992 CarswellOnt 79 (C.A.), refd to. [para. 86].

R. v. Vukelich (M.) (1996), 78 B.C.A.C. 113; 128 W.A.C. 113; 1996 CarswellBC 1611 (C.A.), refd to. [para. 89].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 CarswellBC 2691, refd to. [para. 91].

R. v. Holt (1991), 117 A.R. 218; 2 W.A.C. 218; 14 W.C.B.(2d) 134 (C.A.), refd to. [para. 97].

Authors and Works Noticed:

Morgan, Brian, Proof of Facts in Charter Litigation, in Sharpe, Robert J., Charter Litigation (1987), p. 162 [para. 42].

Sharpe, Robert J., Charter Litigation (1987), p. 162 [para. 42].

Counsel:

Jean-Paul Quenneville, for the Crown (respondent);

Bonnie Parker, for the defence (applicant).

This application was heard before Wenden, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on June 22, 2010.