R. v. Agengo, 2011 ABQB 171

Court of Queen ’ s Bench of Alberta Citation: R. v. Agengo, 2011 ABQB 171 Date: 20110316 Docket: 080599392Q1 Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Dallas Agengo Accused/Applicant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ I. Introduction

[ 1 ] The Accused, Dallas Agengo (Accused/Applicant), was charged pursuant to sections 86(1) , 91(2) , 95 , 94(1) , 100(1) and 117.01(1) of the Criminal Code , RSC 1985, c C-46. On October 12, 2010, the Accused was arraigned and he pled not guilty to all the six counts. At the beginning of trial, the Accused argues that his rights pursuant to sections 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms ( Charter ) were infringed; and makes an application seeking a remedy pursuant to section 24(2) of the Charter for the exclusion of the statement recorded at the police station and the weapon seized from the vehicle involved in the offences for which he stands charged. [ 2 ] In the Indictment, the Accused stands charged that:– Count 1: On or about the 13th day of May, 2008, at or near Edmonton, Alberta, did, without lawful excuse, use (carry, handle, ship, transport or store) a firearm (or prohibited weapon, restricted weapon, prohibited device, ammunition or prohibited ammunition) in a careless manner, contrary to section 86(1) of the Criminal Code of Canada .

Count 2: On or about the 13th day of May, 2008, at or near Edmonton, Alberta, did possess a firearm, to wit: a handgun, and he was not the holder of a licence under which he may possess it (or the holder of a registration certificate for the firearm), contrary to section 91(2) of the Criminal Code of Canada . Count 3: On or about the 13th day of May, 2008, at or near Edmonton, Alberta, had possession of a loaded prohibited or restricted firearm, or a prohibited or restricted firearm together with readily accessible ammunition capable of being discharged in the firearm, contrary to

section 95 of the Criminal Code of Canada . Count 4: On or about the 13th day of May, 2008, at or near Edmonton, Alberta, was an occupant of a motor vehicle, in which he knew that there was at that time a firearm (or prohibited weapon or restricted weapon or prohibited device or prohibited ammunition), contrary to section 94(1) of the Criminal Code of Canada .

Count 5: On or about the 13th day of May, 2008, at or near Edmonton, Alberta, did have in his possession a firearm (or prohibited weapon or restricted weapon or prohibited device or ammunition or prohibited ammunition), for the purpose of transferring (or offering to transfer) it knowing that he was not authorized to transfer it, contrary to section 100(1) of the Criminal Code of Canada .

Count 6: On or about the 13th day of May, 2008, at or near Edmonton, Alberta, did have in his possession a firearm (or crossbow or a prohibited weapon, or a restricted weapon, or prohibited device, or ammunition or prohibited ammunition or an explosive substance) while he was prohibited from doing so by reason of an order made pursuant to section 110(1) of the Criminal Code at Vancouver on the 13th day of January, 2004, contrary to

section 117.01(1) of the Criminal Code of Canada . II. Facts [ 3 ] On May 13, 2008, members of the Edmonton Police Service (EPS) responded to a civilian complaint at [...], Edmonton, Alberta with the information that three males at the location were threatening the complainant with baseball bats and had arrived in a two-door convertible BMW which was either silver or purple.

On arrival at the location and pulling into the parking lot of the multi- family complex, which contained the residence associated to the complaint, Constables Leachman and Paasuke of the EPS observed a BMW where three males got into the car and were leaving the area driving towards the exit that the police were entering from. The police activated their emergency equipment, exited their vehicle and conducted a high-risk takedown with their firearms drawn.

In the course of the operation, the police “gave verbal instructions to the occupants of the vehicle” informing them that they were being stopped because “they were considered armed and dangerous” at the time. [ 4 ] Constable Peachman testified that the occupants were extracted from the vehicle “one at a time”, placed in handcuffs and sat on the curb off to the driver’s side of their vehicle. The police then approached the BMW with its convertible roof retracted, doors open and “did a sweep of the vehicle looking in the vehicle” while standing outside.

In the process, Constable Leachman observed the butt end of a handgun under the front passenger seat, on the floorboards. The Accused had been sitting in the front passenger seat. Shortly

after this observation, the three male occupants of the vehicle were arrested, chartered and cautioned. The Accused was later transportedto the West Division Police Station, where he was given the opportunity to contact counsel and subsequently gave inculpatory statementin a taped interview (Exhibit No. VD-3) that the handgun was his and that it was purchased with the intention of selling it for profit. [5] At the commencement of trial, the Crown and the Defence counsel agreed to submit a handwritten, signed statement of facts(Exhibit No.

VD-4) in which the Accused admitted that: the firearm that was seized from the vehicle is a restricted firearm under section2 of the Criminal Code of Canada; he does not possess the licence for a restricted firearm; the firearm was loaded with ammunitioncapable of being fired in the firearm; he was prohibited from possessing any firearm and/or ammunition at the time of the offence; andthe continuity and authenticity of the video tape of the statement by the accused to Constable Campeau. III. Issues [6] The issues involved are: A.

Was the high-risk takedown, extraction and handcuffing conducted in the context of an investigative detention or arrest?; B. Was there a search of the vehicle and was it reasonable?; C. Was the Accused’s statement voluntary?; and D. Was the Accused’s right to counsel pursuant to

section 10(

b) of the Charter breached? IV. Analysis A. Was the high-risk takedown, extraction and handcuffing conducted in the context of an investigative detention or arrest? The Applicant’s Position [7] The Defence argues that what occurred in this case was an actual arrest of the Accused and was neither an investigativedetention nor a de facto arrest. That the extraction of the Accused from the vehicle, his handcuffing and placement on the curb wouldamount to an arrest.

The Accused pointed out that while Constable Leachman initially testified that this case was an investigativedetention, he ultimately acknowledged that it was an arrest under cross-examination. The Defence contends that while there may havebeen a basis for an investigative detention, the appropriate way to conduct one is while the occupants remained in the vehicle. Hiscounsel submits that the power to conduct an investigative detention cannot be exercised on the basis of a hunch, nor can it become a defacto arrest: R. v.

Mann, 2004 SCC 52, 185 CCC (3d) 308. [8] The Defence says that for the arrest in this case to be lawful, it must be based on reasonable and probable grounds. That ifthe arrest is deemed unlawful, the search will be unlawful and unreasonable: R. v. Stillman, (SCC), [1997] 1 SCR 607,113 CCC (3d) 321. He argues that reasonable grounds to believe that an offence has been committed requires an honest subjective beliefthat the accused committed an offence and an objectively demonstrable basis for that subjective belief.

The Defence argues thatConstable Leachman acknowledged that he did not have a subjective belief that the Accused had committed an offence when he arrestedhim, stating “that doesn’t mean that I specifically had a charge I was placing on them. I was taking them into custody at that time. Giventhe information, somebody still had to talk to the complainant to verify if anything had occurred - and what would they be arrested for”(p. 28, ll. 7-13). The Accused states that the subjective grounds were absent and the objective grounds lacking.

[9] In his submission, the Accused argues that his arrest was made based on suspicion, with investigation conducted thereafter,because all that the police had was a complaint with no description of the individuals involved; and when initiating the arrest, theknowledge that he had been found in a vehicle of similar description to one associated to an alleged threats complaint. That these aredeficient in view of the criteria which the court needs to consider, i.e.: whether the tip was compelling, the source credible, and theinformation contained in the tip confirmed through independent investigation: R. v.

Debot, (SCC), [1989] 2 SCR 1140,52 CCC (3d) 193. [10] The Defence contends that the extraction, arrest and handcuffing was unwarranted; and it was not necessary to separate theAccused from a dangerous weapon for purposes of police safety, based on what was known to the police at the time in question: R. v.Barrett, 2007 ABQB 174, 415 AR 254. The Crown’s Position [11] In the respondent Crown’s submission, the initial takedown, extraction and handcuffing was done in the context ofinvestigating the three males for the weapons complaint of the threatening with baseball bats.

That Constable Leachman statedrepeatedly in his testimony that “on this occurrence I placed him under investigative detention until I could find out further informationas to what was occurring” (p. 20, ll. 20-22); and that “I informed him he was under investigative detention at the time so I hadn’t toldhim he was under arrest (...) Charter and caution rights ...” (p. 22, ll. 32-34). The Crown also referred to the transcript evidence ofConstable Leachman under cross-examination by the Defence counsel as follows:– Q: Okay.

And you remember arresting them for a weapon; that was what was said at that time, would you agree? A: No, at that time we were investigating a – Q: I know what you were investigating – A: – complaint, yes. [12] The Crown contends that Constable Leachman explained that the term “arrest” as used in his notes means taking theoccupants of the vehicle into custody and putting them in custody.

That a careful review of his testimony reveals that all three males wereunder investigative detention up until Leachman observed the gun on the floorboard of the BMW. [13] It submits that police officers are permitted to handcuff those under investigative detention and this does not transform it intoan arrest: R. v. Greaves, 2004 BCCA 484, 189 CCC (3d) 305, where the accused was handcuffed shortly into his detention and remainedthat way for approximately 30 minutes until his arrest; and R. v.

Cunanan, (ON SC), [2008] OJ 1259, 170 CRR (2d)69 (Ont SC) where the accused was removed from a motor vehicle at gunpoint, ordered to lay face down on the pavement where thevehicle started to roll over his foot. The respondent Crown submits that neither of these cases turned the detention into an arrest oroffended

section 9 of the Charter. Conclusion - A.

Was the high-risk takedown, extraction and handcuffing conducted in the context of an investigative detention orarrest? [14] I am satisfied that the information received by the members of the EPS through the official police radio channel that threemales at the location were threatening the complainant with baseball bats and had arrived in a two-door convertible BMW which waseither silver or purple, is sufficient to provide a logical and reasonable basis for considering the occupants of a similar vehicle sighted bythe officers at the location which contained the residence associated to the complaint, as armed and dangerous.

In the circumstances ofthis case, the subsequent decision by the officers to conduct the high-risk takedown, extraction and handcuffing of these occupants is, inmy opinion, neither unreasonable nor arbitrary. Constable Leachman testified that this approach was apparently adopted for officer safetyreasons. [15] Further, the information of threats to a civilian complainant via the police radio constitutes a reasonable basis that provides

the officers with platform for the exercise of the power to conduct an investigative detention. That information available to the officers inthis case transcends a hunch or a suspicion. The Applicant concedes in his brief that there may have been a basis for an investigativedetention, but suggests that the appropriate way to conduct one is while the occupants remained in the vehicle.

I am unable to agree withthe “appropriate way” as suggested by the Defence, especially in view of the nature of the information which the officers wereresponding to at the time. [16] The next question is whether the extraction and handcuffing constitutes an investigative detention or an arrest. The Defenceargues that the chronological record in Constable Leachman’s notebook indicates that the vehicle was stopped at 15:25 hours and theoccupants placed under arrest and in custody by 15:28 hours, prior to the observation of the firearm on the vehicle’s floorboards.

Thatthe Accused cannot be lawfully arrested for firearm offences prior to the observation of the handgun. Given the circumstances of thiscase, I accept Constable Leachman’s explanation that the term “arrest” as used in his notebook at 15:30 hours in fact means taking andputting all the occupants into custody; and, in particular reference to the Accused “doesn’t necessarily mean he was formally chargedwith anything” (p. 26, ll. 23-24). I also accept his evidence that the Accused and the other occupants of the vehicle were informed thatthey were under investigative detention at that time.

While it is true that handcuffing may be used in the process of and indicates themaking of an arrest, it may also be lawfully used in the process of an investigative detention without necessarily turning the detentioninto an arrest: R. v. Latimer, (SCC), [1997] 1 SCR 217, 112 CCC (3d) 193; Greaves, (supra). [17] I therefore conclude that the high-risk takedown, extraction and handcuffing was conducted in the context of an investigativedetention. B. Was there a search of the vehicle and was it reasonable?

The Applicant’s Position [18] The Applicant framed and discussed the issues of investigative detention, arrest and search together for the purpose ofanalysis in his written brief. He argues that Constable Leachman stated that the search of the vehicle was conducted as incident to arrest;and in these circumstances the arrest was unlawful. He notes that the search was warrantless and presumptively unreasonable, andsubmits that no search may be upheld where the arrest which gave rise to it was arbitrary or otherwise unlawful: R. v.

Stillman, (supra). [19] Further, he argues that the evidence of Constable Leachman that the firearm could not fit under the car seat contradicted thatof Constable Paasuke that only the butt end of the firearm was visible and it could fit under the seat. He also contends that the evidenceof Constable Paasuke is consistent with that of Matthew Levesque, one of the three male occupants of the BMW vehicle, that the policephysically searched the vehicle several times prior to locating the firearm, by opening the trunk and locating a bat first.

The Accusednotes that the timing in this case indicates that the vehicle was stopped at 15:25 hours and the occupants under arrest and in custody by15:28 hours; and it was not until approximately 15:49 hours that Constable Paasuke arrested the Accused, shortly after she learned fromConstable Leachman that a gun had been located. [20] The Defence submits that the arrest was unlawful and there was no basis to order the occupants out nor search the vehicle;and that the police did not have reasonable grounds to effect the arrest of the Accused and have accordingly breached his sections 8 and 9rights.

He states that in this case there was no urgency in effecting the arrest and the police should have considered continuedsurveillance and/or further investigation: R. v. Whyte, 2010 ONSC 979, [2010] OJ No 1295. The Crown’s Position [21] The Crown submits that a visual inspection of a vehicle does not constitute a search: R. v. Mellanthin, (SCC),[1992] 3 SCR 615, 135 AR 1. [22] It is argued that even if Constable Leachman’s finding of the firearm amounted to a search, the Accused being a passenger inthe vehicle that belongs to Mr.

Davis, one of the occupants, had no reasonable expectation of privacy with respect to the gun on thefloorboards: R. v. Edwards, (SCC), [1996] 1 SCR 128, 132 DLR (4th) 31; R. v. Belnavis, (SCC),[1997] 3 SCR 341, 151 DLR (4th) 443.

[ 23 ] The evidence of Constable Leachman was that in the process of conducting a tactical sweep around the vehicle with the objective of ensuring that there was no one else inside the car he stood outside the BMW vehicle with its convertible roof retracted and the doors open, looked into it and saw the butt end of a handgun under the front passenger seat, on the floorboards. This evidence does not contradict that of Constable Paasuke that only the butt end of the firearm was visible. The Accused in his submissions acknowledged Constable Paasuke’s evidence in this respect.

In my view, any apparent contradiction in the officers’ evidence as to whether the firearm could fit or could not fit under the car seat could be reconciled by their consistent statements on the extent of the visibility of the handgun. Conclusion - B. Was there a search of the vehicle and was it reasonable? [ 24 ] I note the statement of the Supreme Court of Canada in Mellanthin that:– There can be no quarrel with the visual inspection of the car by police officers ... The inspection is essential for the protection of those on duty ...

There have been more than enough incidents of violence to police officers when vehicles have been stopped ... (para 19) The SCC further stated that:– ...

Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view in the interior of the vehicle , the evidence flowing from such a search should not be admitted (para 33) (emphasis supplied). [ 25 ] I agree with the comments of the Supreme Court that there should be no quarrel with the conduct of a tactical sweep by Constable Leachman with an objective of ensuring the safety of the police officers on that day.

Further, the evidence of the police in this case, which I accept, is that the “majority” or “the butt or handle of the firearm” being a weapon was visible in the interior of the vehicle to Constable Leachman during the tactical sweep around the car; and that at approximately 15:49 hours Constable Paasuke arrested the Accused, shortly after she learned from Constable Leachman that a gun had been located.

Significantly, the officers testified that the handgun was seen prior to the search of the vehicle which commenced at 16:00 hours on the day of the incident; and that the gun was not seized until 16:01 hours on that day. [ 26 ] Based on the evidence before me in this case, I have concluded that the visual inspection of the vehicle initially conducted during the tactical sweep does not constitute a search. The search of the vehicle, in my opinion, was commenced at 16:00 hours on May 13, 2008, the day of the incident after Constable Paasuke arrested the Accused at approximately 15:49 hours.

It is my opinion that given the facts and timelines, there were reasonable and probable grounds for conducting the search of the vehicle. [ 27 ] In the circumstances, I find that the evidence of the firearm, which was located during the visual inspection, later seized after the arrest of the Accused by Constable Paasuke and the search subsequent to the arrest, is admissible. C. Was the Accused’s statement voluntary? The Applicant’s Position [ 28 ] It is the submission of the Applicant that confessions must be voluntary in the broad sense recognized by law: R. v. Sinclair , 2010 SCC 35 , [2010] 2 SCR 310.

That the onus is on the Crown to prove voluntariness beyond a reasonable doubt and a violation of the confessions rule will always warrant exclusion: R. v. Oickle , 2000 SCC 38 , [2000] 2 SCR 3. He notes that extant jurisprudence has established that one of the overriding concerns of the criminal justice system is that the innocent must not be convicted. [ 29 ] The Defence refers to the situation in this case where various officers involved could not recall their interactions with the Accused at critical points in the investigation.

It is argued that a number of significant conversations which the investigators had with the

Accused were not documented or recorded in their notes. It is noted by the Accused that the courts have commented that the police donot necessarily have to take everything down in writing, however they have to be very careful that if they do not they can clearly recalleverything which was said: R. v. Arndt, Brooks, Harvey and Stefiuk, (MB KB), [1981] MJ No. 360, 11 Man R (2d)389 at para 37 (Man Prov Ct). [30] Further the Defence states that the evidence of Sergeant Schindeler indicates that a commissionaire was apparently working atthe relevant detachment at the time of the Accused’s detention.

He notes that notwithstanding the assertion by the Crown’s counsel thatthe commissionaire had been located, the commissionaire did not provide evidence in this matter. It is argued that all surroundingcircumstances must be before the trial judge when the issue of voluntariness is before the court: R. v. Botfield (1973), (BC CA), 28 CCC (2d) 472 (BCCA).

The Defence argues that the Crown has failed to satisfy the onus to adduce evidence of allsurrounding circumstances when it did not provide evidence as to what happened in the few minutes prior to an officer’s arrival wherethe Accused is detained by a security officer. Consequently, the Defence submits, any statement given by the Accused must be excluded. [31] The Defence argues that in this case, the Accused was detained for several hours during which no evidence exists of thecircumstances of his detention.

He states that courts have held that the officer in charge of detachment ought to have been called as awitness on the voir dire to give evidence as to who had been in contact with the accused during the interval in question: R. v. Dryer,1979 ABCA 342 , [1979] AJ No. 750 at para 31(Alta CA); and that statement ought not to have been deemed admissible beforethe Crown had called as witnesses all persons in authority with whom the accused had been in contact at all relevant times and in thedetachment prior to the interrogation: R. v.

Woodward, (ON CA), [1975] OJ No. 91, 23 CCC (2d) 508 at para 5 (OntCA). [32] The Defence submits that Constable Campeau, who ultimately obtained the statement of the Accused could not recall what hewas doing at the police detachment prior to the conduct of the interview. The Accused points to the testimony of Mr. Levesque, one ofthe three male occupants of the BMW vehicle, that the “French police officer with the glasses” (presumably Constable Campeau,according to the Defence) asked him some questions interwoven with inducive comments. He submits that Mr.

Levesque’s testimony inand of itself raises a reasonable doubt with respect to the voluntariness of the statement of the Accused. [33] In respect of the videotaped interview, the Defence observed that at the beginning of the interview Constable Campeau madea comment about the Accused being aware of the firearm and had the firearm, and that comment supports a conclusion that there werediscussions respecting the charges prior to the admissions by the Accused as captured on the video tape.

The Crown’s Position [34] The Crown agrees that the law is that all persons in authority at the time of the statement should be called as witnesses. Itcontends however that this is subject to a satisfactory explanation of the witnesses’ absence, if necessary; in other words, that the courtmust take into consideration an explanation given for failure to call a witness: R. v. Kacherowski (1977), (AB CA),[1978] 1 WWR 209, 37 CCC (2d) 257.

It submits that as indicated on the court record prior to the closing of its case in the voir dire, theCommissionaire was not called due to an inability to locate that person on the morning of October 14, 2010. [35] It submits that the fact that the officers were not able to recall the contents of all conversations with the Accused should go tothe weight of the evidence and not its admissibility: R. v. Sagliocco, (BC CA), [1978] 3 WWR 193, 39 CCC (2d) 514at para 27, where the British Columbia Court of Appeal stated that:– ...

The sole purpose of the inquiry is whether the statement was induced by hope of advantage or fear. If it was not, the statement isadmissible. The fact that a Crown witness cannot recall all of the statement or the fact that there may be discrepancy between the variousCrown witnesses as to what was said goes solely to the weight which is attached to the statement if it is admitted in evidence. The Crown submits that the officers testified that no one offered the Accused anything for making the statement.

It seeks to support thiswith the first part of the statement where the Accused was asking to get bail but Constable Campeau rejected the request and insisted thathe would have to be brought to a Justice of the Peace. [36] Dealing with the videotaped interview, the Crown submits that viewing it reveals that it was not oppressive in any way; thatthere were no inducements or threats and the Accused was of sound mind at the time of making the statement. The Crown observes that

it appeared the Accused was mainly concerned about ensuring his friends did not get blamed for his actions. It also notes that in the interview, the officer was careful to say that the Accused was not going to be released if he confessed. [ 37 ] Further, the Crown submits there is no evidence that any threats were made to the Accused prior or during the taking of the statement. That the officer informed the Accused he would stop the interview to allow him speak with counsel, but the Accused refused.

That this was done by Constable Campeau notwithstanding the fact that the constitutional requirement was met when he was initially provided the opportunity to contact counsel shortly after arriving at West Division Police Station. [ 38 ] Finally, the Crown submits that the statement of the Accused was taken in accordance with factors outlined in Oickle and Sinclair and it is a voluntary statement. Conclusion - C.

Was the Accused’s statement voluntary? [ 39 ] In assessing whether a confessional statement of an accused is voluntary or otherwise, the principal purpose is whether it was induced by hope of advantage or fear. [ 40 ] There is no direct evidence before me that any threats were made to the Accused prior to or during the taking of the statement. [ 41 ] In my view, however, the Defence makes a strong argument that the commissionaire, who was a person in authority and admittedly present as the officer in charge of the detachment where the Accused was detained ought to have been called as a witness on the voir dire to give evidence as to who had been in contact with the Accused during the interval prior to an officer’s arrival.

This is necessary to meet the legal requirement that the Crown must adduce evidence of all surrounding circumstances. While the reason given by the Crown that the Commissionaire was not called due to an inability to locate that person on the morning of October 14, 2010 (the final day of the voir dire ) may appear weak because necessary arrangements ought to have been made by the Crown to ensure the Commissionaire’s presence, nonetheless the possibility certainly exists for the Crown to have encountered unanticipated problems in locating the Commissionaire on that particular day.

Given this, I am satisfied with the Crown’s explanation of the reason for the absence of the Commissionaire as a witness. [ 42 ] The Defence refers to the comments at the beginning of the video tape where Constable Campeau commented about the Accused being aware of the firearm and had the firearm. I am invited to draw from that an inference that there were discussions respecting the charges prior to the admissions by the Accused as captured on the video tape. I am not prepared to draw such an inference as that borders on speculation.

I conclude that the comment itself is neither probative of inducement by hope of advantage or fear, nor indicative of threat to the Accused. [ 43 ] I appreciate the strong concern and argument of the Defence in respect of the situation in this case where various officers involved could not recall their interactions, and/or failed to document or record conversations with the Accused at critical points in the investigation.

The Crown also admits that the officers were unable to recall the contents of all conversations with the Accused, but characterizes the unrecorded conversations as either innocuous or not pertaining to anything which could render the statement as involuntary. It is my opinion that there is a delicate tension between what the police must record and what they could leave unrecorded, especially in the heat of enforcement actions.

Nonetheless it remains a reality that is the responsibility of police officers to document events as they occur. [ 44 ] In the circumstances of this case where there is no evidence before me that the Accused was induced by hope of advantage or fear or threatened in making the statement, I conclude that the confessional statement was voluntary and admissible. [ 45 ] I hold that the fact that the commissionaire was not called as a witness, albeit the satisfactory explanation, coupled with the situation where various officers involved could not recall their interactions with the Accused at critical points in the investigation, are factors which should go to the weight attached to the statement as evidence and not its admissibility.

D. Was the Accused’s right to counsel pursuant to

section 10(

b) of the Charter breached? The Applicant’s Position [ 46 ] The Defence states that the evidence supports a conclusion that the Applicant/Accused was initially provided an opportunity to exercise his right to counsel pursuant to

section 10(

b) of the Charter at the police station. The dispute is with the discussion between Constable Campeau and the Accused respecting waiver as captured on the video tape marked in evidence. It is the submission of the Defence that the Crown is required to prove a valid waiver of the right to counsel: R. v.

Luong , 2000 ABCA 301 , 149 CCC (3d) 571. [ 47 ] It is argued by the Defence that the Accused’s jeopardy and liability changed substantially from his initial arrest and detention for a “weapon” offence when he was advised of the firearm charges with substantial mandatory minimum terms of incarceration upon conviction.

The Defence argues that it was critical that the Accused obtain advise from counsel although he indicated that he did not wish to speak to counsel; that it was imperative for the police to make it clear to the Accused what he was giving up; and that the Crown must establish that the Accused knows what he is giving up and is clearly giving up that right and opportunity: R. v. Sewell , (15 August 1996) Peace River #9509-0006-S6 (Alta QB).

The Defence submits that the Supreme Court of Canada has recently recognized that a change in circumstance which suggests that the choice faced by the detainee has been significantly altered, requiring further advice, will re-trigger the

section 10 (

b) right: Sinclair , supra , and that in the circumstance the Accused ought to have been allowed to make additional or further consultation with a lawyer.

The Crown’s Position [ 48 ] The Crown submits that the Accused was chartered and cautioned at his arrest, after the firearm was located and prior to his providing a statement, and that when he was arrested Constable Paasuke informed him that he was being arrested for weapons offences. [ 49 ] It states that the evidence indicates that the Accused was near the BMW vehicle when Constable Leachman first saw the firearm; that the Accused was aware that he was being arrested for possession of firearm; and that the evidence of Mr.

Levesque, a defence witness and one of the three male occupants of the vehicle, was that the Accused was aware that he was being arrested for possession of firearm. The Crown submits that in any event, the statement of the Accused makes it clear that he was aware that there was a firearm in the vehicle and that this court should take that into account to find that the Accused suffered no prejudice, and that he was aware of what he was being arrested for. Conclusion - D. Was the Accused’s right to counsel pursuant to

section 10(

b) of the Charter breached? [ 50 ] The evidence before me indicates that the Accused was sitting on the curb off to the driver’s side of the vehicle and as such was near the car when the officer saw the firearm during his visual inspection of the car. Further, when Constable Paasuke arrested the Accused she informed him that he was being arrested for weapons offence. This information, in my opinion, is broad enough to include firearm charges. This conclusion becomes logical in the particular circumstance of this case where one of the occupants of the vehicle, Mr.

Levesque, gave evidence relating to the presence of firearm in the vehicle. [ 51 ] I have considered the argument of the Defence that the Accused’s jeopardy and liability changed substantially from his initial arrest and detention for a “weapon” offence when he was advised of the firearm charges, suggestive of further advice consequent to a re- trigger of his

section 10 (

b) right. However, I note that the Supreme Court of Canada stated in Sinclair that:– The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police .

It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice ... (para 55). [ 52 ] On the facts of this case and the evidence before me, I am not satisfied that specifying the nature of the “weapon” to be “firearm” is in the nature of the changed circumstances which is objectively observable that would require additional implementational duties for the police. Therefore I find that there were no changed circumstances requiring renewed consultation with a lawyer.

[ 53 ] Further in respect of the issue of waiver of right to counsel, it is in evidence that the Accused was initially provided the opportunity to contact counsel shortly after arriving at West Division Police Station. Also during the taking of the statement the officer informed the Accused he would stop the interview to allow him speak with counsel, but the Accused stated that he did not wish to speak to counsel because a lawyer would simply “say to wait until he receives the file”. The Defence argues that it is imperative that the police make clear to the Accused what he was giving up.

Based on my finding that there was no objectively observable change of circumstance that would re-trigger the Accused’s s. 10 (

b) right, I find that it was sufficient for the officer to indicate a readiness to stop the interview and allow him speak with counsel. [ 54 ] In the result, I hold that the Defence has not established that the Accused’s right to counsel pursuant to

section 10(

b) of the Charter has been breached. V. Disposition [ 55 ] I hold that the high-risk takedown, extraction and handcuffing was conducted in the context of an investigative detention and the detention was not arbitrary and that the visual inspection of the vehicle conducted during the tactical sweep does not constitute a search since, according to the facts and timelines, the search of the vehicle was conducted after Constable Paasuke arrested the Accused.

Further, I find that there were reasonable and probable grounds for arresting the Accused and for conducting the search of the vehicle; and conclude that there were no breaches of sections 8 and 9 of the Charter in this case.

Consequently I hold that the evidence of the firearm, which was located during the visual inspection, later seized after the arrest of the Accused and the search subsequent to the arrest, is admissible and should not be excluded under s. 24(2) of the Charter . [ 56 ] I further hold that the confessional statement made by the Accused was voluntary and admissible as there is no evidence to demonstrate that he was induced by hope of advantage or fear or threatened in making the statement.

I conclude that the fact that the explanation for the inability to call the commissionaire is satisfactory; and that the situation where various officers involved could not recall their interactions with the Accused at critical points in the investigation, are factors which should go to the weight to be attached to the voluntary statement as evidence and not its admissibility. With respect to the related issue of waiver of right to counsel, I find that the Defence has not established that the right of the Applicant to counsel pursuant to

section 10(

b) of the Charter has been breached. In the result, I hold that the voluntary statement made by the Accused should not be excluded pursuant to s. 24(2) of the Charter . Heard on the 12 th , 13 th and 14 th day of October, 2010. Dated at the City of Edmonton, Alberta this 16 th day of March, 2011. Donald Lee J.C.Q.B.A. Appearances:

Appearances: Brendan Gaunt for the Crown/Respondent Deborah R. Hatch for the Accused/Applicant