R. v. R.E.B., (1997) 208 A.R. 206 (ProvCt)

• Judge: Jacobson, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 16, 1997
• Citations: (1997), 208 A.R. 206 (ProvCt)

R. v. R.E.B. (1997), 208 A.R. 206 (ProvCt)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. NO.027

Her Majesty The Queen v. R.E.B.

(Docket No. 51629475Y10101-03)

Indexed As: R. v. R.E.B.

Alberta Provincial Court

Youth Division

Jacobson, P.C.J.

June 16, 1997.

Summary:

An undercover operation resulted in the "roundup" of 36 individuals, including a young offender. Undercover officers made three separate purchases of marijuana from the youth, resulting in three charges of trafficking in marijuana. Subsequent to that, police (accompanied by the media at the police chief's invitation) executed a search warrant at the youth's home, resulting in another charge (possession of marijuana). The police conceded that the presence of the media was improper and withdrew the charge resulting from the search. With respect to the three charges resulting from the undercover purchases, the youth applied for a stay of proceedings under s. 24(1) of the Charter or as a remedy for abuse of process (based on the joint police/media activity). The issues were, inter alia, "(4) Did the joint conduct of the police and media create a Charter violation, and/or was that conduct an abuse of process?; (5) If there was an abuse of process does the remedy come under the Charter, or is there still a separate remedy for abuse of process?; (6) Whether a Charter violation or abuse of process, is a remedy at this trial proper, or is there another more appropriate forum?; and (7) If a remedy is proper at this time, what is the appropriate remedy?

The Alberta Provincial Court, in a judg­ment reported 201 A.R. 321, held that the three charges, which were proved, were separate and distinct from the execution of the search warrant by police accompanied by the media. The media pres­ence disregarded the youth's privacy rights and constituted an unreasonable search and seizure (Charter, s. 8). It was unnecessary to determine whether police conduct respecting the media also constituted an abuse of pro­cess. The court adjourned the proceeding to determine the appropriate remedy, at this trial, under s. 24(1) of the Charter.

The Alberta Provincial Court subsequently held that notwithstanding this was one of those "clearest of cases" justifying a stay of proceedings, the appropriate remedy was to sentence the youth and assist him to obtain redress through traditional civil procedures to recover constitutional and tort damages (with costs) in the Court of Queen's Bench. The Crown was ordered to pay the youth's sol­icitor-client costs of such proceeding ($15,000 maximum) and execu­tion of the youth's sentence was stayed pending satis­factory provision for costs. The court then sentenced the youth to $1,250 in fines, 45 days' secure custody (served inter­mit­tently) and six months' probation.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - [See Civil Rights - Topic 8374 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - A youth was found guilty of three counts of trafficking - Joint police/media conduct resulted in serious Charter violations - At issue was the appropriate and just remedy under s. 24(1) of the Charter and whether the trial court was the appropriate forum and whether this was the appropriate time to grant a Charter remedy - The Charter breaches did not create evidence, nor did they create substantive defences to traf­ficking - The Alberta Provincial Court held that a stay of proceedings was not the appropriate rem­edy - The appropriate remedy was Charter or constitutional damages, with costs - Although the Provincial Court had juris­diction to award costs against the Crown, the court doubted its jurisdiction to award damages - Accordingly, the appropriate remedy was a civil proceeding in the Court of Queen's Bench for damages - The court ordered that the Crown pay the youth's solicitor-client costs of such proceeding ($15,000 maximum).

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Civil Rights - Topic 8374 ].

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - [See Civil Rights - Topic 8374 ].

Cases Noticed:

R. v. Stillman (W.D.D.) (1997), 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1 (S.C.C.), refd to. [para. 4].

R. v. Cutforth (1987), 81 A.R. 213; 40 C.C.C.(3d) 253 (C.A.), refd to. [para. 7].

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. 7].

R. v. Erickson, [1984] 5 W.W.R. 577; 56 B.C.L.R. 247; 13 C.C.C.(3d) 269 (C.A.), refd to. [para. 17].

R. v. Pang (B.L.) (1994), 162 A.R. 24; 83 W.A.C. 24; 95 C.C.C.(3d) 60 (C.A.), refd to. [para. 23].

R. v. Jedynack (1994), 20 C.R.R.(2d) 335; 16 O.R.(3d) 612; 22 W.C.B.(2d) 252 (Gen. Div.), refd to. [para. 25].

R. v. Mills (1986), 67 N.R. 241; 16 O.A.C. 81 (S.C.C.), refd to. [para. 27].

R. v. McGillivray (1990), 107 N.B.R.(2d) 361; 267 A.P.R. 361; 56 C.C.C.(2d) 304 (C.A.), refd to. [para. 36].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 24(1) [para. 3].

Provincial Court Act, R.S.A. 1980, c. P-20, sect. 2(2) [para. 21]; sect. 36, sect. 37 [para. 22].

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 5(4) [para. 20]; sect. 16 [para. 19].

Counsel:

W. Cocks, for the Crown;

H. Wahl, for the accused.

This case was heard before Jacobson, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on June 16, 1997.