R. v. Mack (D.R.), (2007) 458 A.R. 52 (QB)

• Judge: Hillier, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 04, 2007
• Citations: (2007), 458 A.R. 52 (QB);2007 ABQB 182

R. v. Mack (D.R.) (2007), 458 A.R. 52 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. SE.047

Her Majesty the Queen (respondent/Crown) v. Dax Richard Mack (applicant/defendant)

(040452138Q1; 2007 ABQB 182)

Indexed As: R. v. Mack (D.R.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Hillier, J.

March 16, 2007.

Summary:

In November 2002, Levoir was reported to the  RCMP as missing. About a month later, Love advised an RCMP officer of a conversation with the accused (Mack) the previous night, during which Mack allegedly revealed that he had killed Levoir. RCMP officers were concerned about Love's reliability based on an incident concerning steroids when Love was an auxiliary officer with the RCMP, and requested Love's KGB statement. The RCMP developed an undercover operation and prepared an application for authorization to intercept communications, with Mack as the target. The first of four authorization orders was issued on November 26, 2003. Mack provided information to two officers on separate occasions, following which he was arrested on April 21, 2004 and charged with first degree murder. The investigation continued after arrest. Mack sent a demand for disclosure on May 21, 2004. A jury trial commenced on April 24, 2006. On May 5, 2006, Mack advised that the recent disclosure of materials from RCMP files affecting Love would be used for a pending motion to challenge the four wiretap orders. In the face of the time required to address the issues, the jury was discharged on May 8, 2006. In August 2006, the Crown disclosed more documents, and was directed to provide an inventory of remaining information in possession of the Crown or the police. Material continued to be disclosed. Mack brought three motions alleging breaches of various Charter rights: (1) a "Garofoli" motion to exclude evidence under s. 24 based on s. 8 breaches in the obtaining of the four authorization orders; (2) a disclosure motion for a stay based on breach of ss. 7 and 11(d) resulting from failure by the Crown to meet its disclosure obligations; and (3) a timeliness motion for a stay based on breach of the accused's s. 11(b) right to be tried within a reasonable time. The hearing proceeded as a rolled-up voir dire.

The Alberta Court of Queen's Bench concluded that there had been (1) a breach of the s. 7 rights of the accused due to late disclosure, failure to take notes, and destruction of drafts of the Information to Obtain the wiretap authorizations; (2) no breach of s. 11 (b) as the overall delay had not been unreasonable in the circumstances; and (3) a breach of s. 8 as conceded by the Crown. In terms of remedy, the accused was clearly entitled to the mistrial, adjournment and disclosure orders which had been issued. However, the circumstances did not warrant either a stay of proceedings or an order excluding viva voce evidence of two statements alleged to be attributable to the accused. The court invited defence counsel and the Crown to address the issue of costs as an alternate Charter remedy on the accused's next scheduled appearance.

Editor's Note: For a related case, see R. v. Mack, 458 A.R. 43; 2006 ABQB 324, wherein Love asserted privacy interests which were included as part of the basis for civil litigation against the RCMP and for which the court issued a temporary publication ban.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to obtain information or evidence - The handling by the Crown of its disclosure obligations, and the materials made available since mistrial, gave rise to three motions by Mack alleging breaches of various Charter rights - The Alberta Court of Queen's Bench summarized the Crown's general disclosure obligations in the following manner - "[T]he Crown must disclose all relevant information to an accused, whether inculpatory or exculpatory, subject to the exercise of the Crown's discretion to refuse to disclose information that is privileged or plainly irrelevant. The Crown's duty to disclose is triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence. Further, the relevant information must be disclosed whether or not the Crown intends to introduce it as evidence at trial, before election or plea; in particular, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that these persons are not proposed as Crown witnesses. To establish infringement of the right to make full answer and defence, the accused will have to show that there was a reasonable possibility that the failure to disclose affected the outcome at trial or the overall fairness of the trial" - With respect to the last point, the court noted that "our Court of Appeal in Henkel has held that although at times the s. 7 right of disclosure may constitute an element of the right of full answer and defence, it also stands on its own so that it can form the foundation of an appropriate s. 24(1) remedy" - See paragraphs 68 and 69.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay (Charter, s. 7) - [See both Civil Rights - Topic 3133 and Police - Topic 2215 ].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused was arrested and charged with first degree murder - The handling by the Crown of its disclosure obligations, and the materials made available since mistrial (caused by the Crown's non-disclosure), gave rise to a motion for a stay based on alleged breaches of ss. 7 and 11(d) of the Charter - At issue was the extent of the Crown's disclosure obligation - The Alberta Court of Queen's Bench began its analysis of the issue by observing that "[s]ection 7 ensures that an accused not be deprived the right to life, liberty and security of the person except in accordance with the principles of fundamental justice. These principles include the right to a fair trial (s. 11(d)) which is achieved through, inter alia, disclosure by the Crown of the materials over which it has control and which might assist the accused in mounting a defence to the charge against him" - See paragraph 48.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused was charged with first degree murder - In May 2004, on his request, immediate steps were taken to begin the assembly of disclosure - However, the RCMP were affected by witness safety concerns - The Crown delayed disclosure, until safety was addressed - The greater issue concerned the failure of the RCMP (between July 2004 and April 2006) to complete a full inventory of materials for review with the Crown on a timely basis; the delays led to a mistrial - There was a significant volume of post-mistrial disclosure - The accused moved for a stay, based on breaches of ss. 7 and 11(d) of the Charter - The Alberta Court of Queen's Bench concluded that there had been a breach of the Crown's s. 7 disclosure obligation - The Crown's initial decision to delay disclosure did not unreasonably violate the accused's disclosure rights, and the RCMP exercised reasonable due diligence post-mistrial - The net results of the disclosure now enabled the accused to know and prepare for the case against him - However, significant problems arose as a result of the unilateral actions/inactions of three RCMP officers - The conduct of the officers compromised the disclosure process, which called for appropriate censure - See paragraphs 73 to 94.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial (incl. appeal hearing) - [See both Civil Rights - Topic 3133 ].

Civil Rights - Topic 3157.2

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Police or prosecutorial agents - [See second Civil Rights - Topic 3133 ].

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The accused was charged with first degree murder (execution-style) - There were 36 months from charge to a new trial date, following a mistrial (caused by the Crown's non-disclosure) - The accused moved for a stay based on an alleged breach of his s. 11(b) Charter right to be tried within a reasonable time - Two periods of time were in issue: the three month delay prior to the preliminary inquiry, and the 12 month period between the mistrial and the new trial date - The Alberta Court of Queen's Bench reviewed the considerations to be factored into a s. 11(b) assessment, as well as the particular circumstances of this case, and found no breach - The three month period was inherent time, in light of the nature of the charges and the investigation, and the Crown's witness safety concerns - The bulk of the 12 month period was attributable to the Crown's shortcomings on disclosure - However, the case law did not support a finding that 36 months constituted an unreasonable lapse of time in a murder case - Although the accused had suffered some prejudice, the charges were very serious - A fair trial remained possible - The accused's request for a stay could not be sustained - See paragraphs 110 to 151.

Civil Rights - Topic 3270.04

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Delay prior to retrial - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused brought a "Garofoli" motion to exclude evidence under s. 24 of the Charter, based on s. 8 breaches in the obtaining of four authorizations to intercept private communications issued during a lengthy investigation leading to his first degree murder indictment - By way of remedy under s. 24(2), the Crown conceded that it not be permitted to play or provide transcripts of any recordings of conversations at trial, including body pack conversations with the accused, made pursuant to the four orders - The accused sought an additional remedy that the viva voce testimony of two alleged confessions by the accused to undercover officers be excluded on the basis that the illegal intercepts tainted the subsequent confessions - The Alberta Court of Queen's Bench denied the relief sought - Despite a temporal connection, the evidence of the utterances was not obtained in a manner that breached the Charter by virtue of a connection with the wiretap intercepts, and therefore this requirement for exclusion under s. 24(2) was not met - In the context of very serious charges alleging a brutal murder, it was the exclusion, not the admission, of viva voce evidence with no significant connection to the s. 8 breach which would bring the administration of justice into disrepute - Finally, after noting that the admissibility of confessions in undercover contexts was often approached through an abuse of process analysis, the court concluded that, given its findings, exclusion under s. 24(1) was not essential to maintain the integrity of the process - See paragraphs 152 to 200.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The accused moved for a stay of his first degree murder indictment, based on breaches of ss. 7 and 11(d) of the Charter, resulting from failure by the Crown to meet its disclosure obligations - The Alberta Court of Queen's Bench concluded that there had been a "serious" breach (in terms of delay and non-disclosure) of the Crown's s. 7 disclosure obligation, but that the facts did not warrant a stay of proceedings - The remedy of a stay did not dwell on past misconduct but looked to the future - Neither the delay in disclosure nor the conduct of RCMP officers responsible to preserve and make full disclosure had compromised the ability of the accused to make full answer and defence - Nor were those defaults so egregious as to bring the administration of justice into disrepute - To the extent that there had been disruption of preparation of the defence of the accused, the court found that the interests of the state in a trial on the charge of murder outweighed any such prejudice - "The Charter guarantees the accused a fundamentally fair trial, not a perfect trial" - The accused had been accorded the following remedies: mistrial and adjournment as well as full disclosure to the reasonable satisfaction of the court - See paragraphs 95 to 109.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - The accused moved for a stay of his first degree murder indictment, based on breaches of ss. 7 and 11(d) of the Charter, resulting from failure by the Crown to meet its disclosure obligations - After concluding that there had been a "serious" breach (in terms of delay) of the Crown's s. 7 disclosure obligation, the Alberta Court of Queen's Bench observed that trial remedies for breach of disclosure obligations included a stay, adjournment, mistrial, exclusion of evidence and costs - The accused had already been granted the remedies of a mistrial and adjournments to fully canvass newly disclosed material, and the Crown had conceded that the intercepts were properly excluded (no foundation for wiretap authorizations) - The court concluded that a stay was not appropriate, but that it was appropriate to consider whether to impose costs - The court invited defence counsel and the Crown to address the issue of costs as an alternate Charter remedy on the accused's next scheduled appearance - In particular, the court left open the appropriateness of costs, the criteria by which the quantum of costs, if imposed, ought to be assessed, and the timing of such submissions in terms of whether it should be prior to or at the end of the trial - See paragraphs 95, 203.

Civil Rights - Topic 8380.16

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Adjournments - [See Civil Rights - Topic 8380.7 ] .

Civil Rights - Topic 8380.20

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Mistrial - [See Civil Rights - Topic 8380.7 ] .

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See both Civil Rights - Topic 3133 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3128 and first Civil Rights - Topic 3133 ].

Police - Topic 2212

Duties - General duties - Disclosure of information - The accused moved for a stay of his first degree murder indictment, based on the Crown's failure to meet its disclosure obligations - The greater issue concerned the failure of the RCMP to complete a full inventory of materials of possible disclosure for review with the Crown prosecutor on a timely basis; the delays led to a mistrial - The Alberta Court of Queen's Bench considered the principal causes for the steps taken, or not taken, on disclosure, including the following - One of the major reasons for the significant volume of post-mistrial disclosure was the lack of sustained planning and coordination - Part of the problem was due to inexperience of many of the officers in dealing with a major investigation; turnover in staff shortly after initial disclosure; and the involvement of various branches and services - Nevertheless, "[i]t is and remains the responsibility of the Crown and the police together not only to ensure that somebody is properly assigned to handle disclosure, but also to be satisfied that full disclosure is made on a timely basis and based upon proper criteria" - The deficiencies could not be excused based on good faith alone or on dealing with witness safety concerns - The disclosure was too decentralized, lacked sufficient planning and failed to use objective standards or criteria to assess what ought to be disclosed - See paragraphs 77 to 80.

Police - Topic 2215

Duties - General duties - To make notes of incidents - An accused moved for a stay of his first degree murder indictment, based on the Crown's failure to meet its disclosure obligations - Significant problems arose as a result of the unilateral actions/inactions of three RCMP officers - In assessing the failure to keep accurate and detailed notes, the Alberta Court of Queen's Bench stated that "there must be a balance between fulfilling the duties expected of a police officer, and the chronicling of that activity to ensure adequate review" - The omissions did not comply with RCMP policy and could not be condoned in the absence of any reasonable excuse - Further, the decision of one officer to personally shred all draft copies of the affidavits prepared in support of applications for wiretap authorizations was totally improper - Overall, the oral evidence exposed examples of inappropriate screening of disclosure on the basis of officers' determination of relevance - The court was satisfied that these occurrences resulted from a poor understanding of the possible uses which might be made by defence counsel of notes and materials that might seem innocuous or irrelevant to police officers - Nevertheless, the conduct of the officers compromised the disclosure process in some manner which called for appropriate censure - The court concluded that there had been a breach of the Crown's s. 7 disclosure obligation - See paragraphs 82 to 94.

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 14].

R. v. Henkel (J.E.) et al., [2003] 5 W.W.R. 63; 320 A.R. 206; 288 W.A.C. 206; 172 C.C.C.(3d) 387; 2003 CarswellAlta 62; 2003 ABCA 23, refd to. [para. 51].

R. v. Greganti (S.), [2000] O.T.C. 30 (Sup. Ct.), refd to. [para. 51].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 52].

R. v. Antinello (J.J.) (1995), 165 A.R. 122; 89 W.A.C. 122; 97 C.C.C.(3d) 126 (C.A.), refd to. [para. 59].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 59].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 59].

R. v. Court (G.P.) and Monoghan (P.D.) (1997), 36 O.R.(3d) 263 (Sup. Ct.), dist [para. 139]; refd to. [paras. 60, 143].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 61].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241; 122 C.C.C.(3d) 1, refd to. [para. 64].

R. v. McQuaid - see R. v. Dixon (S.).

R. v. Grimes (D.W.) (1998), 209 A.R. 360; 160 W.A.C. 360; 122 C.C.C.(3d) 331; 1998 ABCA 9, refd to. [para. 67].

R. v. Knox (K.L.) (2006), 211 O.A.C. 164 (C.A.), refd to. [para. 67].

R. v. Vokey (W.J.) (1992), 102 Nfld. & P.E.I.R. 275; 323 A.P.R. 275; 72 C.C.C.(3d) 97 (Nfld. C.A.), refd to. [para. 67].

R. v. J.G.B. (2001), 139 O.A.C. 341; 52 O.R.(3d) 257 (C.A.), refd to. [para. 67].

R. v. Dulude (V.) (2004), 189 O.A.C. 323; 189 C.C.C.(3d) 18 (C.A.), refd to. [para. 67].

R. v. Robinson (C.J.) (1999), 250 A.R. 201; 213 W.A.C. 201; 1999 ABCA 367, refd to. [para. 67].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 68].

R. v. Elliott (J.Y.) (2003), 179 O.A.C. 219 (C.A.), refd to. [para. 72].

R. v. Forster (H.R.) et al. (2005), 269 Sask.R. 275; 357 W.A.C. 275; 2005 SKCA 107, refd to. [para. 91].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 103].

R. v. Wicksted (A.M.) (1996), 90 O.A.C. 374; 29 O.R.(3d) 144 (C.A.), affd. [1997] 1 S.C.R. 307; 208 N.R. 300; 98 O.A.C. 239, refd to. [para. 103].

R. v. Biscette (S.) (1995), 169 A.R. 81; 97 W.A.C. 81 (C.A.), refd to. [para. 103].

R. v. Faulds (D.A.); R. v. Tyler (A.) (1996), 94 O.A.C. 335; 111 C.C.C.(3d) 39 (C.A.), refd to. [para. 103].

R. v. Baxter (D.R.) (1997), 90 B.C.A.C. 54; 147 W.A.C. 54; 115 C.C.C.(3d) 64 (C.A.), refd to. [para. 103].

R. v. R.J., [2002] J.Q. no 5063 (C.A.), leave to appeal denied, [2003] C.S.C.R. no 741, refd to. [para. 103].

R. v. Leduc (J.) (2003), 174 O.A.C. 242 (C.A.), leave to appeal denied 2003 CarswellOnt 4761 (S.C.C.), refd to. [para. 103].

R. v. Arcand (R.D.) (2004), 193 O.A.C. 16 (C.A.), refd to. [para. 103].

R. v. Singh, [2006] Q.J. No. 8995; 2006 QCCS 4784, leave to appeal denied [2006] J.Q. no 12190 (C.A.), refd to. [para. 103].

R. v. Wood (D.W.) (2006), 397 A.R. 389; 384 W.A.C. 389; 2006 ABCA 343, refd to. [para. 103].

R. v. Krueger (D.W.) (2006), 380 A.R. 182; 363 W.A.C. 182; 2006 ABCA 63, refd to. [para. 103].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 104].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 108].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 108].

R. v. Koruz et al. (1992), 125 A.R. 161;14 W.A.C. 161 (C.A.), refd to. [para. 120].

R. v. Robinson (C.J.) (1998), 216 A.R. 297; 175 W.A.C. 297; 1998 ABCA 195, refd to. [para. 120].

R. v. Underwood (G.R.) (2005), 379 A.R. 363; 2005 ABQB 85, refd to. [para. 120].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 123].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 123].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 208, refd to. [paras. 123, 126].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 123].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 123].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 123].

R. v. Neil (D.L.) (2005), 361 A.R. 285; 339 W.A.C. 285; 2005 ABCA 17, refd to. [para. 123].

R. v. Yelle (J.) (2006), 384 A.R. 331; 367 W.A.C. 331; 2006 ABCA 160, refd to. [para. 125].

R. v. Philip, [1993] O.J. No. 473 (C.A.), refd to. [para. 125].

R. v. Atkinson et al. (1991), 50 O.A.C. 48 (C.A.), refd to. [para. 127].

R. v. Khela (S.S.) and Dhillon (K.S.), [1995] 4 S.C.R. 201; 188 N.R. 355, refd to. [para. 131].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353; [1990] 6 W.W.R. 97; 79 C.R.(3d) 129; 76 Alta. L.R.(2d) 1; 50 C.P.R. 110, refd to. [para. 137].

R. v. Trudel (R.) et al., [2007] O.T.C. 60 (Sup. Ct.), refd to. [para. 143].

R. v. Kporwodu (A.) et al. (2005), 196 O.A.C. 272; 85 O.R.(3d) 190; 195 C.C.C.(3d) 501 (C.A.), refd to. [para. 143].

R. v. A.K., [2003] O.J. No. 2521 (Sup. Ct.), refd to. [para. 143].

R. v. Campbell, [2000] O.J. No. 351 (Sup. Ct.), refd to. [para. 143].

R. Lenny (R.D.) (1997), 213 A.R. 161 (Q.B.), refd to. [para. 143].

R. v. R.D.L. - see R. v. Lenny (R.D.).

R. v. Cochrane, [1995] O.J. No. 1336 (Gen. Div.), refd to. [para. 143].

Garton v. Whelan (1984), 14 C.C.C.(3d) 449 (Ont. H.C.), refd to. [para. 143].

R. v. Marini (G.), [2005] O.T.C. 1180 (Sup. Ct.), refd to. [para. 144].

R. v. Bartkowski (S.B.), [2005] B.C.T.C. 148; 2005 BCSC 148, refd to. [para. 144].

R. v. Mitchell, [2004] O.J. No. 3838 (Sup. Ct.), refd to. [para. 144].

R. v. Chow (S.K.C.), [2004] B.C.T.C. 533; 2004 BCSC 533, refd to. [para. 144].

R. v. Lee (S.B.), [2001] B.C.T.C. 277; 2001 BCSC 277, refd to. [para. 144].

R. v. Reavie (R.B.), [2001] O.T.C. 688 (Sup. Ct.), refd to. [para. 144].

R. v. Salt (J.), [2000] O.T.C. 50 (Sup. Ct.), refd to. [para. 144].

R. v. Chenier (P.) et al., [2002] O.T.C. 1069 (Sup. Ct.), refd to. [para. 144].

R. v. Cousins (J.D.) (1998), 176 Nfld. & P.E.I.R. 1; 540 A.P.R. 1 (Nfld. T.D.), refd to. [para. 144].

R. v. Campbell, [1998] O.J. No. 6299 (Sup. Ct.), refd to. [para. 144].

R. v. Pilgrim, [1997] O.J. No. 6065 (Gen. Div.), refd to. [para. 144].

R. v. Pilon (R.R.), [1996] B.C.T.C. Uned. A94 (S.C.), refd to. [para. 144].

R. v. McMaster, [1992] O.J. No. 2529 (Gen. Div.), refd to. [para. 144].

R. v. Coon, [1992] O.J. No. 675 (Gen. Div.), refd to. [para. 144].

R. v. Allain, [1992] O.J. No. 546 (Gen. Div.), refd to. [para. 144].

R. v. Kennedy, [1991] B.C.J. No. 3726 (S.C.), refd to. [para. 144].

R. v. Rodney, [1991] B.C.J. No. 991 (S.C.), refd to. [para. 144].

R. v. Collins (M.E.), [1995] 2 S.C.R. 1104; 183 N.R. 285; 82 O.A.C. 365; 99 C.C.C.(3d) 385, refd to. [para. 145].

R. v. Fliss (P.W.), [2002] 1 S.C.R. 535; 283 N.R. 120; 163 B.C.A.C. 1; 267 W.A.C. 1; 161 C.C.C.(3d) 225, refd to. [paras. 158, 180].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, dist. [para. 159].

R. v. Wijesinha (W.K.K.), [1995] 3 S.C.R. 422; 186 N.R. 169; 85 O.A.C. 241; 100 C.C.C.(3d) 410, refd to. [paras. 167, 180].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479; 1988 CanLII 25, refd to. [para. 168].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [paras. 168, 182].

R. v. Sobotiak (R.A.) (1994), 155 A.R. 16; 73 W.A.C. 16 (C.A.), refd to. [para. 168].

R. v. Bordage (2000), 146 C.C.C.(3d) 549 (Que. C.A.), refd to. [para. 171].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 177].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Fasciano - see R. v. Sanelli, Duarte and Fasciano.

R. v. Nugent (P.), [2005] O.A.C. Uned. 82 (C.A.), refd to. [para. 180].

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; 113 C.C.C.(3d) 321, dist. [para. 180].

R. v. Solomon (1997), 118 C.C.C.(3d) 351 (S.C.C.), affing. (1996), 110 C.C.C.(3d) 354 (Que. C.A.), refd to. [para. 180].

R. v. Pope (B.) (1998), 219 A.R. 85; 179 W.A.C. 85; 129 C.C.C.(3d) 59 (C.A.), refd to. [para. 180].

R. v. Denton (R.C.) et al. (1999), 140 C.C.C.(3d) 12 (Que. C.A.), refd to. [para. 180].

R. v. Mooring (I.R.) et al. (2003), 181 B.C.A.C. 63; 298 W.A.C. 63; 174 C.C.C.(3d) 51; 2003 BCCA 199, refd to. [para. 180].

R. v. Montemurro (C.) et al., [2004] O.A.C. Uned. 202 (C.A.), leave to appeal dismissed (2004), 336 N.R. 194 (S.C.C.), refd to. [para. 180].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 182].

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) 147; 2000 SCC 38, refd to. [para. 197].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 48]; sect. 8 [para. 152]; sect. 11(b) [para. 125]; sect. 11(d) [para. 48].

Counsel:

David A. Labrenz (Alberta Justice), for the applicants;

David H. Abbey and Lawrence Fleming (Abbey Hunter Davison) and (Fleming Depoe Gubbins), for the defendant.

These three motions were heard on February 8 to March 4, 2007, by Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who gave the following ruling and memorandum of decision, dated March 16, 2007.