R v Jemba, 2021 ABQB 838

Court of Queen’s Bench of Alberta Citation: R v Jemba, 2021 ABQB 838 Date: 20211022 Docket: 191421130Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Sadik Nuro Jemba Accused _______________________________________________________ Endorsement on Defence Application for Additional Reasons of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ A. Introduction [ 1 ] On October 20, 2021, I issued Reasons for Decision on the voluntariness of a statement given by the Accused to Constable McNalley and Detective Hunt on November 9, 2019.

I ruled the statement to be voluntary and admissible in the trial proper: R v Jemba , 2021 ABQB 832 . [ 2 ] In my Reasons for Decision, paragraph 21, I indicated that portions of the Accused’s statement and, more particularly, his answers to questions were unintelligible or incomprehensible. However, at paragraph 22, I noted that some portions of the statement were both comprehensible and reliable and ruled the statement to be voluntary. [ 3 ] The Crown has not yet closed its case.

The Accused asks the Court to advise him now as to which portions of his voluntary statement it considers to be unintelligible or incomprehensible as he requires this information in order to determine further trial strategy.

[4] The Accused has cited the case of R v Phoenix, as authority for the proposition that he is entitled to theCourt’s determination on this issue so as to allow him to properly consider his options and, this Court assumes, whether he will testify. InPhoenix, a

summary conviction trial judge on a charge of driving while over .08, did not conduct a defence requested stand-alone s10(

b) Charter voir dire. Rather, he conducted what is described as a blended voir dire and trial essentially requiring the Accused totestify at trial without knowing the result of the voir dire and, therefore, the scope of the case against him. As well, because he wasforced to testify at the trial proper instead of the s 10(

b) voir dire, he was subject to unlimited cross-examination which would not havebeen the case had a focused s 10(

b) voir dire been held. [5] The Superior Court of Justice, on appeal from conviction, held that the procedure in relation to the s 10(

b) application wasunfair and the Accused had been entitled to a ruling on that issue before being called upon to respond to the Crown’s case. [6] The situation in this case is markedly different. The Accused had given a statement to the police. The Crown, quite properly,entered into a voluntariness voir dire to determine the admissibility of the statement at trial. I determined that the statement was madevoluntarily and held it to be admissible.

It was not incumbent upon me at that time, nor at this time, to advise the parties how I may viewany particular statements in an otherwise voluntary and admissible statement by the Accused just as it is not incumbent on a court toadvise the parties in advance of its ultimate decision as to how it views the reliability of any particular statements in an otherwisevoluntary and admissible statement or, indeed, of the evidence given by any witness. [7] Unlike the situation in Phoenix, a voir dire was held, the evidence in this case was ruled admissible and the Accused knowsthe case to meet.

Ultimately, after the evidence has all been adduced, I will hear submissions with respect to the weight to be placed onall of the evidence, including statements made by the Accused to the Police. [8] The application by the Accused is denied. Heard on October 21, 2021. Decision given orally on October 21, 2021. Dated at Edmonton, Alberta on October 21, 2021. _________________________ Eric F. Macklin J C Q B A Appearances: C. Tess and D. Fostey for the Crown D. Anderson for the Accused