R v Cullen, 2016 ABQB 272

Court of Queen ’ s Bench of Alberta Citation: R v Cullen, 2016 ABQB 272 Date: 20160512 Docket: 151042785U2 Registry: Edmonton Between: Her Majesty the Queen - and - Shawn Gordon Cullen Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Mr. Cullen has filed an application in which he states that he is seeking the following remedy: Charges dropped – Protection from process and facility exercise. Where there is a right there is a remedy.

It appears that he seeks a remedy under Charter s. 24(1). [ 2 ] The application was on the docket list in Queen’s Bench Appearance Court on April 29, 2016. The purpose was to set a date for the hearing of the Mr. Cullen’s application. [ 3 ] Mr. Cullen is not represented by counsel on this application. He is represented by counsel for the defence of the criminal

charges for which he is in custody but that counsel has not been instructed on this application. [ 4 ] Mr. Cullen has prepared the present application materials himself. They consist of an application document and a document entitled “Official

Section 24 application testament of Shawn Cullen”. The latter consists of 11 pages of very tight handwriting (there are approximately 70 lines of handwriting per page), and 8 pages of attached typed documents on which there are many handwritten notes. The document does not purport to be an affidavit. [ 5 ] Crown Counsel, Mr. Rowan, submitted that Mr. Cullen’s application materials are very significantly deficient and that the application should not be allowed to proceed while the application materials are in their present form.

He observed that the materials do not specifically identify any Charter right alleged to have been breached. Some of Mr. Cullen’s concerns appear to relate to the actions of agencies which are not relevant in the criminal proceedings against him – mental health agencies and government housing agencies, for example. Some of his concerns appear to relate to the circumstances surrounding his arrest which might be relevant to issues arising at his trial, which, by virtue of his election, will be held in the Provincial Court in July.

An application to this Court with regard to those matters is inappropriate. [ 6 ] Overall, Mr. Rowan’s position is the materials filed fail to give the Crown clear notice of what Charter issues Mr. Cullen seeks to have adjudicated. They do not come close to meeting the requirements for proper notice, or for evidence, in either form or content. [ 7 ] I have reviewed the materials. I agree with the Crown’s assessment. Mr.

Cullen’s materials fall so far below the standards for clear communication to the Crown and the Court of the basis of application that it is not reasonable to expect the Crown to respond to them or the Court to adjudicate on their contents. [ 8 ] In making that assessment, I am mindful that both the Crown and the Court will always exercise great flexibility so as to ensure that an accused in custody can bring alleged breaches of Charter rights to Court and to seek a remedy.

In this case, however, the materials are so woefully deficient that to permit the application to proceed would necessitate the exercise of an unreasonable degree of flexibility. [ 9 ] In addition to reviewing the materials filed by Mr. Cullen, I have reviewed the materials on the related Queen’s Bench bail review and detention review file in respect of Mr. Cullen. Mr. Cullen was arrested in August 2015 and has been in custody ever since. Concerns about his mental health lead to an assessment of his fitness to stand trial.

The assessing psychiatrist concluded that he is fit to plead to the indictment, although he had a concern with regard to Mr. Cullen’s ability to give his lawyer proper and useful instructions. The psychiatrist also concluded that Mr. Cullen “continues to harbour a discernible major mental disorder namely, paranoid delusional disorder with the hallmark features of grandiosity and persecution.” [ 10 ] At the time of the bail review application in this court, Mr. Cullen was, as I understand it, an involuntary patient at Alberta Hospital.

The bail review was adjourned sine die with a direction that it could be resumed once Mr. Cullen had been released from Alberta Hospital and returned to the Edmonton Remand Centre. I gather this occurred sometime before his appearance before me on April 29. I further understand that his counsel has taken steps to resume the bail review hearing and that a detention review hearing is also set to be heard in the near future. Also, I understand that the Provincial Court trials in relation to the charges against Mr.

Cullen are to be heard in mid July 2016. [ 11 ] My review of the materials gives me some confidence that this is not a case where an in-custody accused has fallen off the radar. Whether or not Mr. Cullen’s continued detention in relation to the charges against him is required will be assessed by the Court as soon as his counsel is ready to proceed with that review. Concerns he has about the manner of his arrest can, if they are relevant, be addressed at his trial. [ 12 ] If Mr.

Cullen believes his Charter rights have been breached by the treatment he has received in custody, he can seek a Charter remedy either by filing appropriate materials in this application or by commencing a new application. The materials for that purpose must clearly identify the Charter right he alleges has been breached, and clearly set out the facts which he alleges constitute the breach. The facts should be clearly set out in a sworn affidavit. [ 13 ] I adjourn the present application pending Mr. Cullen filing and serving application materials in that form. Heard on the 29 th day of April, 2016.

Dated at the City of Edmonton, Alberta this 12 th day of May, 2016. B.R. Burrows J.C.Q.B.A.

Appearances: J. A. Rowan for the Crown The Accused appeared without Counsel