R. v. Myers (K.J.), [2000] O.T.C. 276 (SupCt)

• Judge: Langdon, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: March 09, 2000
• Jurisdiction: Ontario
• Citations: [2000] O.T.C. 276 (SupCt)

R. v. Myers (K.J.), [2000] O.T.C. 276 (SupCt)

MLB headnote and full text

Temp. Cite: [2000] O.T.C. TBEd. MY.012

Her Majesty the Queen v. Kenneth John Myers

(Brampton File No. 2902/99)

Indexed As: R. v. Myers (K.J.)

Court of Ontario

Superior Court of Justice

Brampton

Langdon, J.

March 9, 2000.

Summary:

After securing a warrant, police entered a motel room and arrested the accused for sexual assault. The accused was placed in a police car and, six minutes following the police entry, he was read his right to counsel. He was also given the standard police caution. He was again advised of his right to counsel before a videotaped interview at the police station. Police also called duty counsel on his behalf and he was afforded an opportunity to consult duty counsel in private. The accused submitted that the provision of his right to counsel was not made without delay. A voir dire was held to determine the admissibility of: (a) oral and videotaped utterances of the accused made to police following his arrest; (b) photographs of the accused taken by police following his interview; (c) utterances of the accused to correctional personnel on his admission to jail: and (d) photographs of the accused taken by correctional personnel on his admission to jail.

The Ontario Superior Court held that although there may have been a technical breach of the accused's right to be informed of his right to counsel without delay, it would decline to exclude any evidence where the breach was committed by the police acting in good faith and for valid practical considerations and without adverse consequence to the accused. The court ruled that: (a) the accused's utterances to police after his arrest were voluntary and admissible; (b) the common law police power incidental to arrest included the right to photograph the accused (to preserve evidence of scratches on his face and chest) and the photographs were admissible; (c) the accused's utterances to correctional personnel on his admission to jail were admissible; and (d) photographs of the accused taken by correctional personnel on his admission to jail were also admissible.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - See paragraphs 6 to 24.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - See paragraphs 6 to 24.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraph 24.

Criminal Law - Topic 5352

Evidence and witnesses - Confessions and voluntary statements - Statements to a person in authority - See paragraphs 46 to 47.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, etc - General principles - Admissibility - See paragraphs 42 to 47.

Police - Topic 3024

Powers - Common law - Scope of - See paragraphs 42 to 45.

Police - Topic 3061

Powers - Arrest and detention - General - See paragraphs 42 to 45.

Cases Noticed:

Ibrahim v. R, [1914] A.C. 599, refd to. [para. 3].

R. v. Cheddesingh (D.M.) (1998), 58 O.T.C. 257 (Gen. Div.), refd to. [para. 13].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129; 45 C.R.R. 49, refd to. [para. 20].

R. v. Fitton, [1956] S.C.R. 958; 116 C.C.C. 1, refd to. [para. 39].

R. v. Lee (E.) (1996), 5 O.T.C. 321 (Gen. Div.), refd to. [para. 43].

R. v. Marcoux and Soloman, [1976] 1 S.C.R. 763; 4 N.R. 64; 60 D.L.R.(3d) 119; 29 C.R.N.S. 211; 24 C.C.C.(2d) 1, refd to. [para. 44].

R. v. Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129, refd to. [para. 45].

R. v. Chung (C.) (1997) B.C.T.C. Uned. A37 (S.C.), refd to. [para. 46].

R. v. Pangman, [2000] M.J. No. 51 (Q.B.), refd to. [para. 47].

Counsel:

M. Basso, for the Attorney General;

C. Spettigue, for the accused.

This voir dire was heard before Langdon, J., of the Ontario Superior Court, who released the following ruling on March 9, 2000.

Please note: The following judgment has not been edited.