R. v. Tipewan (L.C.), (1998) 166 Sask.R. 199 (QB)

JudgeLaing, J.
CourtCourt of Queen's Bench of Saskatchewan (Canada)
Case DateApril 03, 1998
JurisdictionSaskatchewan
Citations(1998), 166 Sask.R. 199 (QB)

R. v. Tipewan (L.C.) (1998), 166 Sask.R. 199 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. MY.024

Her Majesty The Queen v. Leonard Clinton Tipewan

(1997 Q.B.J. No. 52)

Indexed As: R. v. Tipewan (L.C.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Laing, J.

April 3, 1998.

Summary:

The accused was charged with second degree murder. A voir dire was held to determine the admissibility of: (1) the results of the testing of samples obtained from the accused pursuant to a DNA warrant; and (2) statements made by the accused to a police officer.

The Saskatchewan Court of Queen's Bench ruled that the evidence obtained from any DNA analysis was admissible in evidence, but the accused's statements were not admis­sible.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - Police responded to a report of a shooting - An officer had rea­son to believe that the accused was involved and asked the accused to accom­pany him to the police vehicle - The accused entered the back seat - The officer asked the accused some questions - Shortly thereafter, the accused was arrested and advised of his right to counsel - The Saskatchewan Court of Queen's Bench held that the accused was under de facto arrest from the time that he was instructed to accompany the officer to the police vehicle and then entered the vehicle and that he was not given his rights to counsel prior to his formal arrest in breach of s. 10(b) of the Charter - A statement made by the accused during that period was ruled inad­missible where the breach was flagrant and the court was not sat­isfied that the accused would have made the state­ment if he had been advised of his right to counsel - See para­graphs 21 to 40.

Civil Rights - Topic 4604

Right to counsel - Denial of or interfer­ence with - What constitutes - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 3076

Special powers - Search warrants - Bodily substances - Execution of - The accused was charged with second degree murder - A voir dire was held to determine the admissibility of the results of the testing of samples obtained from the accused pursu­ant to a DNA warrant - The accused argued that the officer who executed the warrant did not comply with s. 487.07(1)(d) of the Criminal Code because he did not inform the accused of the pos­sibility that the results of any DNA analy­sis might be used in evidence - The Saskatchewan Court of Queen's Bench held that the evidence obtained from any DNA analysis was admissible - The accused was provided with sufficient in­formation with respect to the contents of the warrant that a reasonable person would have inferred that the purpose of the analy­sis was for use in evidence - See para­graphs 2 to 20.

Criminal Law - Topic 3076

Special powers - Search warrants - Bodily substances - Execution of - The accused was charged with second degree murder - A voir dire was held to determine the admissibility of the results of the testing of samples obtained from the accused pursu­ant to a DNA warrant - The accused argued that the officer who executed the warrant did not comply with s. 487.07(1)(e) of the Criminal Code because he did not inform the accused of the auth­ority of the peace officer to use as much force as was necessary to execute the warrant - The Saskatchewan Court of Queen's Bench held that the evidence obtained from any DNA analysis was admissible - There was no prejudice to the accused with respect to the failure to advise that force might be used because the accused did not resist - See paragraphs 2 to 17.

Criminal Law - Topic 3076

Special powers - Search warrants - Bodily substances - Execution of - The accused was charged with second degree murder - A voir dire was held to determine the admissibility of the results of the testing of samples obtained from the accused pursu­ant to a DNA warrant - The accused took issue with the fact that the officer simply highlighted or explained the gist of the warrant to the accused as opposed to read­ing the warrant word for word - The accused argued that the "highlighting" of the terms of the warrant in layman's lan­guage did not satisfy the requirement that the accused be "informed" of the content as required by s. 487.07(1) of the Criminal Code - The Saskatchewan Court of Queen's Bench disagreed - Section 487.07(1) did not require a verbatim reci­tation - See paragraph 18.

Criminal Law - Topic 5338

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Where accused's rights violated - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 5340

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Effect of mental capacity of accused - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was charged with second degree murder - The Crown sought to admit into evidence certain statements made by the accused to police - The evidence indicated that the accused was substantially intoxi­cated at the time that he made the state­ments - The Saskatchewan Court of Queen's Bench was not satisfied that the statements made by the accused were voluntary and ruled that they were inad­missible - While the court was satisfied that the accused had an operating mind when he made the statements, it was not satisfied beyond a reasonable doubt that he was aware of the consequences of making the statements - See paragraphs 41 to 53.

Cases Noticed:

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1; 15 C.R.(4th) 215, refd to. [para. 12].

Cleary v. Correctional Service of Canada et al. (1990), 108 N.R. 225; 56 C.C.C.(3d) 157 (C.A.), refd to. [para. 14].

Baker v. National Parole Board (1996), 111 F.T.R. 283 (T.D.), refd to. [para. 15].

Herman v. National Parole Board (1996), 112 F.T.R. 1 (T.D.), refd to. [para. 15].

R. v. M.F.B. (1996), 143 Sask.R. 241 (Q.B.), refd to. [para. 16].

R. v. Williams (B.L.) (1995), 58 B.C.A.C. 53; 96 W.A.C. 53; 98 C.C.C.(3d) 176 (C.A.), refd to. [para. 16].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 33].

R. v. Esposito (1985), 12 O.A.C. 350; 24 C.C.C.(3d) 88 (C.A.), refd to. [para. 35].

R. v. Latimer (R.W.) (1997), 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 112 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 36].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289; 33 C.R.(4th) 1, refd to. [para. 39].

R. v. Pickett (1975), 28 C.C.C.(2d) 297 (Ont. C.A.), refd to. [para. 42].

R. v. Letendre (1979), 46 C.C.C.(2d) 398 (B.C.C.A.), refd to. [para. 42].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201; 116 D.L.R.(4th) 416; 92 C.C.C.(3d) 11; 32 C.R.(4th) 1; 23 C.R.R.(2d) 6, refd to. [para. 45].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 77 C.R.(3d) 145; 57 C.C.C.(3d) 1; [1990] 5 W.W.R. 1; 47 B.C.L.R.(2d) 1, refd to. [para. 46].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 50 C.R.(3d) 289; 26 D.L.R.(4th) 493; 19 C.R.R. 209, refd to. [para. 47].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 487.07(1) [para. 2].

Authors and Works Noticed:

Penguin Concise English Dictionary (Rev. Ed. 1969) [para. 18].

Shorter Oxford English Dictionary (3rd Ed. 1973) [para. 18].

Counsel:

K. Scott Bartlett, for the Crown;

H. Harradence, for the accused.

This voir dire was heard before Laing, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following decision on April 3, 1998.

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3 practice notes
  • Table of cases
    • Canada
    • Irwin Books Detention and Arrest - Third Edition
    • February 27, 2024
    ...11, 100 R v Tim, 2022 SCC 12 ............................... 12, 98, 100, 103, 134, 181, 262–63, 400 R v Tipewan (1998), 166 Sask R 199, [1998] SJ No 238 (QB) ........................... 257 R v Todd, 2019 SKCA 36 ..................................................................... 105, 11......
  • Table of cases
    • Canada
    • Irwin Books Archive Detention and Arrest. Second Edition
    • June 22, 2017
    ...118, 119, 131−33, 282, 294 R v Thomson (1984), 51 AR 273, 11 CCC (3d) 435, [1984] AJ No 980 (CA) ........197 R v Tipewan (1998), 166 Sask R 199, [1998] SJ No 238 (QB) ............................ 239 R v Todorovic, 2014 ONCA 153 ....................................................................
  • Table of cases
    • Canada
    • Irwin Books Archive Detention and Arrest
    • September 7, 2010
    ...A.J. No. 980 (C.A.) ........................................................................................ 168 R. v. Tipewan (1998), 166 Sask. R. 199, [1998] S.J. No. 238 (Q.B.) ..... 206, 208 R. v. Tontarelli, 2009 NBCA 52 .......................................................................
3 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Archive Detention and Arrest
    • September 7, 2010
    ...A.J. No. 980 (C.A.) ........................................................................................ 168 R. v. Tipewan (1998), 166 Sask. R. 199, [1998] S.J. No. 238 (Q.B.) ..... 206, 208 R. v. Tontarelli, 2009 NBCA 52 .......................................................................
  • Table of cases
    • Canada
    • Irwin Books Archive Detention and Arrest. Second Edition
    • June 22, 2017
    ...118, 119, 131−33, 282, 294 R v Thomson (1984), 51 AR 273, 11 CCC (3d) 435, [1984] AJ No 980 (CA) ........197 R v Tipewan (1998), 166 Sask R 199, [1998] SJ No 238 (QB) ............................ 239 R v Todorovic, 2014 ONCA 153 ....................................................................
  • Table of cases
    • Canada
    • Irwin Books Detention and Arrest - Third Edition
    • February 27, 2024
    ...11, 100 R v Tim, 2022 SCC 12 ............................... 12, 98, 100, 103, 134, 181, 262–63, 400 R v Tipewan (1998), 166 Sask R 199, [1998] SJ No 238 (QB) ........................... 257 R v Todd, 2019 SKCA 36 ..................................................................... 105, 11......

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