R. v. S.E.V., 2009 ABCA 108

R. v. S.E.V. (2009), 448 A.R. 351 (CA);

      447 W.A.C. 351

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MR.129

Her Majesty The Queen (respondent) v. S.E.V. (appellant)

(0803-0005-A; 2009 ABCA 108)

Indexed As: R. v. S.E.V.

Alberta Court of Appeal

Côté and McFadyen, JJ.A., and Verville, J.(ad hoc)

March 24, 2009.

Summary:

The accused was convicted of sexual assault, sexual interference and sexual exploitation. The complainant was the 13 year old sister of his wife. Following a voir dire, the trial judge ruled that a videotaped statement to police was made voluntarily and the accused's right to be informed of the reason for his arrest or detention (Charter, s. 10(a)) and his right to counsel (s. 10(b)) were not violated. The accused appealed, submitting that the trial judge erred in finding the statement voluntary, in finding no Charter violation, and in finding guilt in the face of problems with the 13 year old complainant's credibility.

The Alberta Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - Police were investigating alleged sexual offences against the accused's 13 year old sister-in-law - The accused gave a video-taped statement to police - He was told that he was not under arrest - The accused knew the allegations he was being questioned respecting - He was advised of his right to counsel, which he explained back to the officer - The accused knew he could stop the questioning at any time to consult with a lawyer - The officer had provided him with the telephone numbers plus the toll free number - When asked if he wished to first speak with a lawyer, the accused responded "not right now" - The accused signed a waiver/caution form which indicated that he might be charged with sexual offences and was also told that he had the right not to say anything - The accused gave a statement - The Alberta Court of Appeal held that the accused's s. 10(a) Charter right to be informed of the reason for his detention was not denied - The accused knew the reason why he was being questioned - He knew the extent of his jeopardy - The court stated that "the accused must generally understand the sort of jeopardy he faces but need not be aware of the precise charge faced, nor all of the factual details of the case" - The trial judge reasonably concluded that there was no denial of the accused's s. 10(b) right to counsel - There was a plain reading of his right to counsel, an explanation, a verbal acknowledgment and a signed waiver - The accused understood his rights before being offered an opportunity to call a lawyer - See paragraphs 21 to 29.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 3142 ].

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - [See Civil Rights - Topic 3142 ].

Criminal Law - Topic 5335

Evidence and witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - Police were investigating alleged sexual offences against the accused's 13 year old sister-in-law - The accused gave a video-taped statement to police - He was told that he was not under arrest - The accused knew the allegations he was being questioned respecting - He was advised of his right to counsel, which he explained back to the officer - The accused knew he could stop the questioning at any time to consult with a lawyer - The officer had provided him with the telephone numbers plus the toll free number - When asked if he wished to first speak with a lawyer, the accused responded "not right now" - The accused signed a waiver/caution form which indicated that he might be charged with sexual offences and was also told that he had the right not to say anything - The accused gave a statement - The trial judge ruled it voluntary, finding that if the officer made a veiled threat about not releasing the accused, it was early on, not repeated, and not a factor in the accused's decision to talk - The Alberta Court of Appeal dismissed the accused's appeal - The issue of being charged and then released was the strongest inducement made - However, there was no suggestion that if the accused did not make a statement he would not get released - The accused made a conscious decision to give a statement - He was properly treated by the officer in a non-oppressive environment - The inducement relied on (to obtain release) was not strong enough to render the accused's will overborne - See paragraphs 14 to 20.

Cases Noticed:

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 2].

R. v. Ferguson (M.E.) (2006), 397 A.R. 1; 384 W.A.C. 1; 2006 ABCA 261, affd. [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 3].

R. v. Anderson (W.R.) (2009), 448 A.R. 165; 447 W.A.C. 165; 2009 ABCA 67, refd to. [para. 3].

Baier et al. v. Alberta (2006), 384 A.R. 237; 367 W.A.C. 237; 2006 ABCA 137, affd. [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 4].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 4].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 5].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134, refd to. [para. 5].

R. v. Spencer (B.S.), [2007] 1 S.C.R. 500; 358 N.R. 278; 237 B.C.A.C. 1; 392 W.A.C. 1; 2007 SCC 11, refd to. [para. 18].

R. v. V.Z. (2004), 61 W.C.B.(2d) 225 (Ont. C.J.), refd to. [para. 20].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 22].

R. v. Kelly (1985), 7 O.A.C. 46 (C.A.), refd to. [para. 22].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1, refd to. [para. 22].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289, refd to. [para. 33].

R. v. Carrier (D.X.) (2008), 429 A.R. 107; 421 W.A.C. 107; 2008 ABCA 134, refd to. [para. 23].

R. v. Lund (F.O.) (2008), 440 A.R. 362; 438 W.A.C. 362; 2008 ABCA 373, refd to. [para. 23].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 112 C.C.C.(3d) 193, refd to. [para. 23].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233; 63 C.C.C.(3d) 313, refd to. [para. 23].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321; 92 C.C.C.(3d) 404, refd to. [para. 27].

R. v. Sinclair (T.T.) (2008), 252 B.C.A.C. 288; 422 W.A.C. 288; 169 C.R.R.(2d) 232; 2008 BCCA 127, refd to. [para. 27].

R. v. Sawatsky (W.L.) (1997), 103 O.A.C. 68 (C.A.), refd to. [para. 28].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200, refd to. [para. 32].

Counsel:

D.C. Marriott, for the respondent;

A. Tralenberg, for the appellant.

This appeal was heard on March 5, 2009, before Côté and McFadyen, JJ.A., and Verville, J.(ad hoc), of the Alberta Court of Appeal.

On March 24, 2009, the following memorandum of judgment was delivered by the court.