R. v. Otten (D.J.), (1994) 148 A.R. 378 (QB)

• Judge: Fruman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 02, 1994
• Citations: (1994), 148 A.R. 378 (QB)

R. v. Otten (D.J.) (1994), 148 A.R. 378 (QB)

MLB headnote and full text

Her Majesty The Queen v. David James Otten (accused)

(Action No. 9301-0680C1)

Indexed As: R. v. Otten (D.J.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Fruman, J.

February 2, 1994.

Summary:

The accused was charged with unlawfully cultivating cannabis marijuana and pos­session of cannabis marijuana for the pur­pose of trafficking contrary to the Narcotic Control Act. At the commencement of trial, a voir dire was held to determine the issues of admissibility of statements made by the accused to police and the admissibility of evidence seized from the accused's premises.

The Alberta Court of Queen's Bench ruled on the issues accordingly.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - [See Narcotic Control - Topic 2025 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreas­onable search and seizure defined - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - Denial of - What con­stitutes - The accused was arrested at his residence on suspicion of narcotics of­fences - He was cautioned - He asked to call counsel - The residence was entered - A search under a warrant commenced, a locked door to the basement was opened and marijuana plants were found - Com­mensurate with the search, the accused was allowed to contact counsel - The accused argued that since the search was not sus­pended until he contacted counsel, his s. 10(b) Charter rights were violated which made the search unreasonable and contrary to s. 8 of the Charter - The Alberta Court of Queen's Bench held that there was no Charter violation, and in any event, the evidence should not be excluded under s. 24 of the Charter - See paragraphs 60 to 66.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 5337

Evidence and witnesses - Confessions and voluntary statements - Admissibility - General - The accused was arrested at his residence on suspicion of Narcotic Control Act offences - He was cautioned and allowed to call counsel before leaving the residence - On the way to the police station while the accused and one of the police officers were talking, the accused stated that "they should legalize this stuff" - The Alberta Court of Queen's Bench, on a voir dire, ruled that the statement by the accused was admissible where it was made freely and voluntarily, was not in response to an inquiry by the officer and was the utterance of an operating mind - See paragraphs 6 to 9.

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants, grounds - Information, sufficiency of form and contents - The accused was arrested at his residence on suspicion of Narcotic Control Act offences - The residence was searched pursuant to a warrant and evidence seized - The accused challenged the admissibility of the evidence, arguing that the warrant was invalid and the search and seizure therefore contrary to s. 8 of the Charter - The Alberta Court of Queen's Bench ex­amined the alleged technical and substan­tive inadequacies in the information and ruled that the evidence was sufficient for issuance of the warrant and s. 8 was not violated - See paragraphs 8 to 59.

Narcotic Control - Topic 2048

Search and seizure - Setting aside search warrants - Grounds - Unsworn informa­tion - A police officer sought a Narcotic Control Act search warrant for "David Jerome Otten" - The officer swore the information before a judge and obtained a warrant - Shortly thereafter, the officer realized the suspect's middle name was inadvertently typed incorrectly and should have been "James" - The officer immedi­ately went back to the judge who crossed out "Je­rome", substituted "James" and initialled the change - The officer did not reswear the information - The Alberta Court of Queen's Bench held that even if the infor­mation was unsworn, the warrant should not be quashed totally where the amend­ment did not affect the warrant's essential validity - Even with the middle name deleted, the judge had reasonable and probable grounds to issue the warrant - See paragraphs 12 to 29.

Cases Noticed:

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 66 C.R.(3d) 297; 45 C.C.C.(3d) 296, consd. [paras. 17, 62].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 17].

Sieger v. Barker (1982), 27 C.R.(2d) 91 (B.C.S.C.), consd. [para. 18].

Hudon v. R. (1989), 73 Sask.R. 193 (Q.B.), consd. [para. 22].

R. v. Lajoie (1983), 50 A.R. 140; 4 D.L.R.(4th) 491 (N.W.T.S.C.), refd to. [para. 25].

R. v. Savary et al. (1985), 65 A.R. 201 (Q.B.), refd to. [para. 26].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; [1993] 8 W.W.R. 287, refd to. [para. 27].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135; 84 C.C.C.(3d) 161, refd to. [para. 27].

R. v. Garofoli, [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, refd to. [para. 31].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), refd to. [para. 32].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161; 75 C.R.(3d) 257; 46 C.R.R. 1; [1990] 3 W.W.R. 577; 73 Alta. L.R.(2d) 97, refd to. [para. 32].

R. v. Sismey (1990), 55 C.C.C.(3d) 281 (B.C.C.A.), dist. [para. 58].

R. v. Donaldson (1990), 58 C.C.C.(3d) 294 (B.C.C.A.), dist. [para. 58].

R. v. Turcotte (1987), 60 Sask.R. 289; 39 C.C.C.(3d) 193 (C.A.), refd to. [para. 58].

R. v. Berger (1989), 74 Sask.R. 198; 48 C.C.C.(3d) 185 (C.A.), refd to. [para. 58].

R. v. Christianson (1987), 47 Sask.R. 143; 26 C.C.C.(3d) 391 (Q.B.), refd to. [para. 58].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173, refd to. [para. 58].

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. 65].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207; 1 C.R.(4th) 62; [1991] 1 W.W.R. 193; 51 B.C.L.R.(2d) 157; 50 C.R.R. 285, refd to. [para. 69].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [para. 70].

R. v. Goncalves (H.M.) (1992), 131 A.R. 68 (C.A.), apprvd. [1993] 2 S.C.R. 3; 150 N.R. 384; 135 A.R. 397; 81 C.C.C.(3d) 240, refd to. [para. 74].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 10(b), sect. 24(2) [para. 2].

Criminal Code, R.S.C. 1985, c. C-46, sect. 487 [para. 21].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 4(2), sect. 6 [para. 1]; sect. 12 [para. 16].

Counsel:

B.O. Phillips, for the Crown;

C.N. O'Brien, for the accused.

This matter was heard before Fruman, J., of the Alberta Court of Queen's Bench, who delivered the following decision on February 2, 1994.