T.R.W., P.B. and R.W., Re, (1986) 68 A.R. 12 (ProvCt)

Judge:Cook-Stanhope, J.
Court:Provincial Court (Alberta)
Case Date:February 15, 1986
Jurisdiction:Alberta
Citations:(1986), 68 A.R. 12 (ProvCt)
 
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T.R.W., Re (1986), 68 A.R. 12 (ProvCt)

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In the Matter of T.R.W., P.B. and R.W., Young Persons within the meaning of the Young Offenders Act

Indexed As: T.R.W., P.B. and R.W., Re

Alberta Provincial Court

Youth Division

Cook-Stanhope, J.

January 15, 1986.

Summary:

A police officer, who suspected a young person had illegally used a credit card at a motel, asked the youth and his friends to step outside, where the officer searched the youth who allegedly used the card. In the youth's zippered breast pocket the officer found a stolen credit card and receipts indicating that the card had been used by the youth. The youth and two of his friends were charged with using a stolen credit card contrary to the Criminal Code. The youth argued that the evidence obtained in the search should be excluded under s. 24 of the Charter because of alleged violations of the youth's right to counsel as guaranteed by s. 10(b) of the Charter and s. 11(2) of the Young Offenders Act and because the search was allegedly contrary to s. 8 of the Charter.

The Alberta Provincial Court held that the evidence seized was admissible. The court found that the search was not unreasonable or contrary to the Charter and that the youth was detained but failed to prove a denial of his right to counsel and, therefore, the evidence obtained in the search would not be excluded under s. 24 of the Charter. The court held further that even if the youth's right to counsel was infringed, the evidence would not be excluded because s. 24 of the Charter did not apply when the right to counsel under s. 10(2) of the Young Offenders Act was violated. Also, if the youth's right to counsel under s. 10(b) was violated, the court held that this was not a case where s. 24 should be used to exclude the evidence.

Civil Rights - Topic 1211

Security of the person - Lawful or reasonable search - General - The Alberta Provincial Court discussed generally the law of search and seizure in Canada - See paragraphs 10 to 24.

Civil Rights - Topic 1213

Security of the person - Lawful or reasonable search - For reasonable and probable grounds - Warrantless searches - The Alberta Provincial Court referred to a "good" test for the adequacy of grounds for a warrant less search: "... a peace officer should have enough reasons to form a proper belief that if they could at that moment be placed before a justice of the peace, a warrant to search might probably be issued. If the officer were to say to himself that a justice of the peace, if available would not issue a warrant on 'these grounds', then he should not proceed with the search" - See paragraph 19.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest - The Alberta Provincial Court stated the common law has continued to recognize warrantless searches by police incidental to arrest as being lawful - The court stated that the phrase "searches incidental to arrest" did not mean that the arrest must precede the search in all factual circumstances - See paragraphs 11, 24.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - A police officer who suspected that a young person had illegally used a credit card in a motel, asked the youth to step outside where the officer searched the youth - The officer found a stolen credit card and credit card receipts in the youth's zippered front breast pocket - The youth argued that the evidence was inadmissible because the search was contrary to s. 8 of the Charter - The Alberta Provincial Court held that the search was not contrary to the Charter - See paragraphs 10 to 24.

Civil Rights - Topic 3604

Detention - What constitutes - A police officer who suspected that a young person had illegally used a credit card in a motel asked the youth to step outside where the officer searched the youth - The Alberta Provincial Court held that outside the motel while the youth was being searched, he was detained - See paragraphs 25 to 28.

Civil Rights - Topic 4613

Right to counsel - Requirement of arrest or detention - A police officer who suspected that a young person had illegally used a credit card in a motel asked the youth to step outside where the officer searched the youth - The Alberta Provincial Court held that outside the motel while the youth was being searched, he was detained for purposes of s. 10(b) of the Charter - See paragraphs 25 to 28.

Civil Rights - Topic 4620

Right to counsel - Evidence - The Alberta Provincial Court rejected the proposition that if the Crown fails to prove an accused was informed of his Charter rights, then evidence obtained as a result of the failure to inform the accused of his rights is inadmissible - The court instead held that the onus of establishing an infringement of Charter rights rests, on a balance of probabilities, upon the defence - The court stated that "this onus cannot be discharged by merely raising the suggestion of infringement or denial but ... must be based upon facts revealed by the evidence" - See paragraphs 29 to 33.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Alberta Provincial Court referred to a number of circumstances which should be considered in the process of determining whether evidence should be excluded - See paragraph 34.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - A police officer, who suspected that a young person had illegally used a credit card in a motel, asked the youth to step outside, where the officer searched the youth - The youth argued that evidence seized during the search was inadmissible because the youth was not informed of his right to counsel (Charter, s. 10(b)) - The Alberta Provincial Court refused to exclude the evidence where the defence provided no evidence of an infringement of the youth's right guaranteed by s. 10(b) - The court stated, however, that even it the youth's right was infringed, the court would not exclude the evidence - See paragraphs 29 to 36.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - The Alberta Provincial Court agreed that the provisions of s. 24 of the Charter appear to limit the discretion of the court to exclude evidence to situations in which rights prescribed by the Charter have been violated - The court therefore agreed that where a youth's right to counsel under s. 11(2) of the Young Offenders Act is violated, evidence obtained thereby cannot be excluded under s. 24 of the Charter - See paragraphs 35.

Criminal Law - Topic 8714

Young offenders - Right to counsel - The Young Offenders Act, s. 11(2), provided that young persons who are arrested or detained shall forthwith be advised of their right to be represented by counsel and given an opportunity to obtain counsel - The Alberta Provincial Court - The court also stated that where s. 11(2) is violated, the court could not exclude the evidence under s. 24 of the Charter because s. 24 is limited to situations where Charter rights are violated - See paragraph 35.

Evidence - Topic 7533

Competency of evidence - Illegally obtained evidence - Exclusion of - General - A police officer suspected a youth had used a stolen credit card in a motel and asked the youth to step outside to be searched - The youth argued that his right to counsel under s. 11(2) of the Young Offenders Act was violated and therefore the evidence should be excluded under s. 24 of the Charter - The Alberta Provincial Court held that s. 24 of the Charter was inapplicable and admitted the evidence even although it might have been obtained contrary to the Young Offenders Act because it was of highly probative value (R. v. Wray, [1971] S.C.R. 272) - See paragraph 35.

Words and Phrases

Incidental to arrest - The Alberta Provincial Court discussed the meaning of the words "incidental to arrest" within the context of the phrase "searches incidental to arrest" - See paragraph 24.

Cases Noticed:

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; (1984), 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97, folld. [para. 15].

R. v. Morrison (1985), 45 C.R.(3d) 284, refd to. [para. 17].

R. v. Heisler (1984), 57 A.R. 230; 11 C.C.C.(3d) 475, refd to. [para. 18].

R. v. Therens, [1985] 1 S.C.R. 613; 40 Sask.R. 122; 59 N.R. 122; 18 C.C.C.(3d) 481; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 86; 45 C.R.(3d) 97, refd to. [para. 25].

R. v. Dedman (1981), 59 C.C.C.(2d) 97 (Ont. C.A.), refd to. [para. 26].

R. v. Cox (1984), 37 C.R.(3d) 38, refd to. [para. 31].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 34].

Maltby, Sinclair, Perrin and Morin v. Saskatchewan, Attorney General et al. (1982), 20 Sask.R. 366; 2 C.C.C.(3d) 153, refd to. [para. 34].

R. v. Wray, [1971] S.C.R. 272, appld. [para. 35].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 8, sect. 10(b), sect. 24.

Young Offenders Act, S.C 1980-81-82-83, c. 110, sect. 11(2) [para. 35].

Authors and Works Noticed:

American Law Institute's Model Code of Pre-arraignment Procedure [para. 11].

Law Reform Commission of Canada, Police Powers - Search and Seizure in Criminal Law Enforcement, p. 15 [para. 11].

Standard Oxford English Dictionary [para. 24].

Counsel:

V. Russell, for the Crown;

A. Szabo, for T.R.W.;

T. McGuire Hagel, for P.B.;

C. Callanan, for R.W..

This case was heard before Cook-Stanhope, J., of the Alberta Provincial Court, Youth Division, who delivered the following decision on February 15, 1986:

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