Docket

37756

G.T.D. v. Her Majesty the Queen

(Alta.) (Criminal) (As of Right)

(Publication ban in case) (Publication ban on party)

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

Proceedings
Date Proceeding Filed By
(if applicable)
2018-04-18 Formal judgment sent to the registrar of the court of appeal and all parties
2018-04-18 Judgment on appeal and notice of deposit of judgment sent to all parties
2018-04-18 Record returned to the Registrar of the Court of Appeal
2018-02-27 Appeal closed
2018-02-27 Transcript received, 51 pages
2018-02-19 Formal judgment sent to the registrar of the court of appeal and all parties
2018-02-19 Judgment on appeal and notice of deposit of judgment sent to all parties
2018-02-14 General proceeding, (Letter Form), Questionnaire regarding publication ban Her Majesty the Queen
2018-02-14 General proceeding, (Letter Form), Questionnaire regarding Publication Ban G.T.D.
2018-02-14 Judgment on the appeal rendered, REVISED on April 6, 2018., CJ Abe Côt Br Mar,
The appeal from the judgment of the Court of Appeal of Alberta (Edmonton), Number 1603-0143-A, 2017 ABCA 274, dated August 25, 2017, was heard on February 14, 2018, and the Court on that day delivered the following judgment orally:
BROWN J. — G.T.D. was convicted for the sexual assault of a previous intimate partner and appeals as of right on the strength of a dissent at the Court of Appeal of Alberta. The dissenting judge would have ordered a new trial on the ground that the delivery of the Edmonton Police Service’s standard caution breached G.T.D.’s right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms and that the inculpatory statement G.T.D. offered in response should be excluded under s. 24(2) of the Charter according to the test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The majority at the Court of Appeal agreed that G.T.D.’s right to counsel had been breached, but dismissed the appeal on the basis that the statement should not be excluded.
The right to counsel under s. 10(b) of the Charter obliges police to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel” (R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269). The first issue in this appeal is whether the question “Do you wish to say anything?”, asked at the conclusion of the standard caution used by the Edmonton Police Service after G.T.D. had already invoked his right to counsel, violated this duty to “hold off”. We are all of the view that it did, because it elicited a statement from G.T.D.
The next issue is whether this breach warrants the exclusion of G.T.D.’s statement under s. 24(2) of the Charter. A majority of the Court is of the view that it does, and relies substantially on the reasons of Justice Veldhuis at the Court of Appeal. As she noted at para. 83 of her reasons, the Crown had ample opportunity to call further evidence about Edmonton Police Service training or policy, but chose not to do so. The majority would therefore allow the appeal and order a new trial.
The Chief Justice would dismiss the appeal on the basis that the breach does not warrant the exclusion of G.T.D.’s statement. The appellant argued that the use of the question “Do you wish to say anything?” as part of the standard caution results in a systemic pattern of Charter breaches. While such a pattern may aggravate the seriousness of the Charter-infringing state conduct, here, the pattern did not, in the Chief Justice’s view, involve the abuse of well-settled rules or negligence in determining what those rules mandated. The duty to “hold off” itself is well settled.
In the circumstances, whether this form of caution falls within its scope was, in the Chief Justice’s view, not so certain as to deprive the police error, systemic as it may have been, of the badges of reasonableness or good faith. Nor, in his view, is this a case where the police have improperly chosen “the least onerous path [through a Charter] gray area” (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 94).
The Chief Justice concludes that the fact that the question was accompanied by clear information about G.T.D.’s choice to speak to the police attenuated the impact of the state conduct on the Charter-protected interests of the accused to the point where, balanced with the seriousness of the breach and society’s interest in adjudication on the merits, admission of the statement would not bring the administration of justice into disrepute.
Allowed
2018-02-14 Hearing of the appeal, 2018-02-14, CJ Abe Côt Br Mar
Decision rendered
2018-02-14 Respondent's condensed book, (Book Form), (14 copies) Submitted in the court room Her Majesty the Queen
2018-02-14 Appellant's condensed book, (Book Form), (14 copies) Submitted in court room G.T.D.
2018-02-01 Notice of appearance, (Letter Form), Jason R. Russell will be appearing and will present oral argument.

Her Majesty the Queen
2018-01-29 Appeal perfected for hearing
2018-01-22 Notice of appearance, Ian Runkle will be appearing and will present oral argument.
G.T.D.
2018-01-17 Certificate (on limitations to public access), (23A and 23B) Her Majesty the Queen
2018-01-17 Respondent's factum, (Book Form), Completed on: 2018-01-17, (Electronic version filed on 2018-01-17) Her Majesty the Queen
2018-01-08 Order on motion for leave to intervene, by Justice Brown
2018-01-08 Decision on the motion for leave to intervene, Br, UPON APPLICATION by the Attorney General of Ontario for leave to intervene in the above appeal;
AND THE MATERIAL FILED having been read;
IT IS HEREBY ORDERED THAT:
The motion for leave to intervene is dismissed.
Dismissed
2018-01-08 Submission of motion for leave to intervene, Br
2017-12-28 Reply to the motion for leave to intervene, (Letter Form), Completed on: 2017-12-28 Attorney General of Ontario
2017-12-20 Response to the motion for leave to intervene, (Letter Form), Completed on: 2017-12-20 G.T.D.
2017-12-13 Response to the motion for leave to intervene, (Letter Form), Includes affidavit received by paper copy on 2017-12-14, Completed on: 2017-12-13 Her Majesty the Queen
2017-12-13 Motion for leave to intervene, (Book Form), Completed on: 2017-12-13 Attorney General of Ontario
2017-11-22 Notice of hearing sent to parties
2017-11-22 Appeal hearing scheduled, 2018-02-14
Decision rendered
2017-11-15 Certificate of counsel (attesting to record) G.T.D.
2017-11-15 Appellant's record, (Book Form), Completed on: 2017-11-15 G.T.D.
2017-11-15 Certificate (on limitations to public access), 23-B G.T.D.
2017-11-15 Appellant's factum, (Book Form), Completed on: 2017-11-15 G.T.D.
2017-10-05 Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right)
2017-09-25 Letter acknowledging receipt of a notice of appeal
2017-09-21 Certificate (on limitations to public access), Form 23B G.T.D.
2017-09-21 Certificate (on limitations to public access), Form 23A G.T.D.
2017-09-21 Notice of appeal, (Letter Form), Amended notice filed on 2017-09-25, Completed on: 2017-09-21 G.T.D.