R v Agengo, 2012 ABQB 459

Court of Queen ’ s Bench of Alberta Citation: R v Agengo, 2012 ABQB 459 Date: 20120720 Docket: 080599382Q1 Registry: Edmonton Between: Her Majesty the Queen Plaintiff - and - Dallas Agengo Defendant _______________________________________________________ Supplemental Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ I. Introduction [ 1 ] The Accused Dallas Agengo was charged with various firearms offences pursuant to sections 86(1) , 91(2) , 94(1) , 95 , 100(1) and 117.01(1) of the Criminal Code , RSC 1985, c C-46.

At the beginning of trial, the Accused brought an application under section 24(2) of the Canadian Charter of Rights and Freedoms (“ Charter ”) to exclude a video statement he made to the police as well as the weapon seized from the vehicle which led to the charges.

[ 2 ] I heard the Charter application in October, 2010. In my judgment issued on March 16, 2011, I held that the video statement in question was made voluntarily by the Accused and therefore it was admissible at trial: R v Agengo , 2011 ABQB 171 (“ Agengo #1 "). I further held that there were reasonable and probable grounds for arresting the Accused and conducting a search of the vehicle. [ 3 ] However, the matter did not end there. After the voir dire hearing in October 2010, the Court adjourned to allow parties to prepare written submissions and present oral arguments on the Charter issues.

The parties filed written submissions but due to an oversight by the Court, the decision in Agengo #1 was issued before the parties were given an opportunity to make oral submissions. [ 4 ] Counsel for the Accused then brought an application on for a mistrial on the grounds that no oral submissions were made and the Accused had no opportunity to respond to the written materials filed by the Crown.

I heard the Accused’s application for a mistrial on April 4, 2011, and ultimately dismissed the application in a written decision issued on July 6, 2011: R v Agengo , 2011 ABQB 430 (“ Agengo #2 "). [ 5 ] Although I denied the mistrial application in Agengo #2 , I allowed counsel for the Accused and the Crown to appear before me again to make oral submissions on the Charter issues raised in the voir dire by agreement on September 16, 2011. On that date Defense counsel applied for an adjournment, which the Crown consented to.

The matter was eventually adjourned on September 23, 2011 to January 12-13, 2012 for oral argument as counsel now requested two days. On December 7, 2011, the matter was again spoken to because Defence counsel advised that she would not be in the Province on the scheduled January 12-13, 2012 dates and required another adjournment. This time the matter was adjourned until April 11 and 12, 2012. The oral arguments finally took place on April 11, 2012.

After the parties completed their oral submissions, I reserved my decision on the voir dire to consider both the written materials previously submitted by counsel as well as the more recent oral argument. [ 6 ] This judgment is intended to supplement the reasons already given in Agengo #1 . II. Facts [ 7 ] I will briefly summarise the facts leading to the Accused’s arrest, which are set out in greater detail in Agengo #1 . On May 13, 2008, police responded to a civilian complaint with the information that three males in a convertible BMW were threatening the complainant with baseball bats.

On arriving at the location, police observed three men in a BMW attempting to leave the area. What followed was described as a high-risk takedown, resulting in the three men being removed from the vehicle and placed in handcuffs. The police officers did a visual sweep of the vehicle and observed the butt end of a handgun under the front passenger seat, where the Accused had been sitting. The three men were then arrested, chartered and cautioned. The Accused was then transported to the West Division Police Station, where he was given the opportunity to contact counsel.

The Accused then gave inculpatory statements in a taped interview that the handgun was his and that it was purchased with the intention of selling it for profit. III. Procedural Background [ 8 ] In Agengo #1 , the Accused argued that his rights pursuant to sections 8 , 9 , and 10(

b) of the Charter were infringed. The Court was asked to determine four issues in the voir dire : 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?

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

section 10(

b) of Charter breached? [ 9 ] As stated earlier, counsel for the Accused and the Crown made substantive written submissions specific to the voir dire on these issues before the judgment in Agengo #1 was issued. After reviewing those written submissions and the evidence presented during the voir dire , I held as follows: (

A) The high-risk takedown, extraction and handcuffing of the three male occupants of the vehicle was conducted in the context of an investigative detention, not an arrest: it was not unreasonable nor arbitrary; there was a logical and reasonable basis for the police officers to consider the three male occupants of the BMW as armed and dangerous; the information of threats to the civilian complainant constituted a reasonable basis for the officers to conduct an investigative detention. (

d) The visual inspection of the vehicle initially conducted during the tactical sweep did not constitute a search: the objective of the tactical sweep was to ensure the safety of the police officers responding to the complaint; the handgun was visible during the tactical sweep of the vehicle; there were reasonable and probable grounds for conducting a search of the vehicle; the search was conducted after the Accused was arrested; and the handgun which was seized after the Accused’s arrest was admissible. (

c) The Accused’s statement was voluntary and admissible: there was no evidence of inducement by hope of advantage or fear, or of threat to the Accused in making the statement; the Crown’s explanation of the reason for the absence of the Commissionaire as a witness on the voir dire was satisfactory; and the Commissionaire’s absence at the voir dire coupled with some of the police officers’ inability to recall specific details about their interactions with the Accused at critical points of the investigation are factors which go to the weight attached to the statement as evidence and not to its admissibility. (

d) The Accused’s right to counsel pursuant to

section 10(

b) of the Charter was not breached: the Accused was provided with an opportunity to contact counsel shortly after arrived at the West Division Police Station; there was no change in circumstances requiring renewed consultation with a lawyer; and it was sufficient for the officer to indicate a readiness to stop the interview to allow the Accused to speak with counsel. [ 10 ] In the result, I held that both the videotaped statement and the handgun seized after the Accused was arrested were admissible at trial. IV. Oral Argument [ 11 ] Counsel for the Accused and the Crown appeared before me on April 11, 2012.

Counsel’s arguments took approximately one hour, and I conclude that they were essentially a reiteration of the positions they took in the written materials submitted prior to the decision in Agengo #1 . As noted in Agengo #2 , the Crown’s written materials had been filed in response to the Accused’s written brief and counsel for the Accused did not have the opportunity to respond to the Crown’s materials.

During oral argument on April 11, 2012, counsel for the Accused took the opportunity to respond directly to the Crown’s written materials and sought to distinguish a number of the authorities cited by the Crown from the present circumstances. [ 12 ] The parties did not file any additional written materials. V. Decision [ 13 ] As I stated at paras 20-21 of Agengo #2 , the Court had the benefit of the parties’ written submissions before making its decision in Agengo #1 :

A review of the decision [in Agengo #1 ] confirms detailed references to the salient submissions by both parties on all the issues that were raised in evidence and in argument...

In the present matter, the Court had the benefit of comprehensive written arguments from both the Accused and the Crown on the merits of the issues on voir dire ; secondly, both counsel before this Court had a clear understanding that they were writing their briefs on the merits of the issues and were neither uncertain about the real nature of the issues at stake nor misunderstood it; and thirdly, after the Court had given its reason due to the oversight, it did not suggest that “counsel would have no more to say”, instead it attempted to cure the oversight by inviting the counsel for the Accused to make her submissions. [ 14 ] I have reviewed the oral argument in detail and am satisfied that the substance of the oral submissions is essentially the same as the written submissions, which were carefully considered along with the evidence prior to issuing the judgment in Agengo #1 .

As such, my findings in Agengo #1 remain the same. Consequently, both the handgun and the videotaped statement are admissible at trial. Heard on the 11 th day of April, 2012. Dated at the City of Edmonton, Alberta this 20th day of July, 2012. Donald Lee J.C.Q.B.A. Appearances: Brendan Gaunt Crown Prosecutor for the Plaintiff Deborah R. Hatch Gunn Law Group for the Accused