HER MAJESTY THE QUEEN Respondent - v. -, 2003 ABCA 91

R. v. Gitsadig, 2003 ABCA 91 Date: 2003 03 21 Docket: 0103-0360-A IN THE COURT OF APPEAL OF ALBERTA ____________________________________________________ THE COURT: THE HONOURABLE MADAM JUSTICE FRUMAN THE HONOURABLE MR. JUSTICE COSTIGAN THE HONOURABLE MR. JUSTICE RITTER ____________________________________________________ BETWEEN: HER MAJESTY THE QUEEN Respondent - and - HABTE WELDEABZGHI GITSADIG Appellant (Accused) Appeal from the Conviction by THE HONOURABLE MR. JUSTICE MACKENZIE Dated the 9 th day of October, 2001 ____________________________________________________

MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH ____________________________________________________ COUNSEL: A.R. Schlayer For the Respondent T.P. Glancy For the For the Appellant (Accused) ____________________________________________________ MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH ____________________________________________________ FRUMAN, J.A. (for the Court): [ 1 ] The complainant alleged that the appellant, a taxi cab driver, sexually assaulted her while she was a passenger in his cab.

She immediately reported the incident and the number of the taxi cab to the police. [ 2 ] The appellant operated the taxi cab with the number reported to the police. He was arrested the following night for sexual assault, given his s. 10(

b) Charter rights and cautioned about saying anything. He requested a lawyer. He was then transported to the police station, placed in an interview room containing a phone and phone books, and informed that phone numbers for duty counsel were available to him. When the officer turned to leave, the appellant asked what the allegations against him were. The officer sat down and advised the appellant of the allegations.

The appellant immediately stated that “he remembered the fare, remembered picking her up, and that he didn’t touch her in any way, and she didn’t touch him in any way” (A.B. 60/41-43). [ 3 ] Although the complainant positively identified the appellant as the taxi cab driver, identity was an issue at trial. [ 4 ] The trial judge held a voir dire into the admissibility of the appellant’s statement. The appellant called no evidence at the voir dire .

The trial judge found that there was no violation of the appellant’s rights and that even if he had found a violation, the statement should not be excluded pursuant to s. 24(2) of the Charter .

[ 5 ] On appeal, the appellant argues his s. 10(

b) Charter rights were breached because he was given no opportunity to exercise his right to contact counsel. [ 6 ] The trial judge correctly found that the appellant’s s. 10(

b) Charter rights had not been violated. The appellant gave a very short, spontaneous statement when told of the allegations against him. He had been chartered and cautioned and indicated he understood his rights. His statement was not elicited in any way by the police officer, nor did she continue the interview. She did not question him, but merely provided information to him in response to his question about the nature of the charges against him. The appellant’s statement was brief and the police officer had no notice that he was going to give it and no means of stopping him from speaking.

She had no opportunity to provide a Prosper [1] warning, nor was one called for. [ 7 ] Finally, even if a breach could be found, the trial judge was correct that, at best, it was a technical breach that could not bring the administration of justice into disrepute. We dismiss the appeal. APPEAL HEARD on FEBRUARY 27 , 2003 MEMORANDUM FILED at EDMONTON , Alberta, this 21 st day of MARCH , 2003 ___________________________________ FRUMAN, J.A. [1] 1994 CanLII 65 (SCC) , [1994] 3 S.C.R. 236