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EVIDENCE - Admissibility - Prejudicial evidence - Confessions and statements by the accused

Monday, August 16, 2021 @ 9:27 AM  


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Application by the accused, charged with sexual assault and overcoming resistance, to exclude his statement to police. The accused’s step-daughter alleged the accused gave her two pills when she went to bed and later entered her bedroom and sexually assaulted her. The accused, whose first language was not English, was not offered an interpreter when he was interviewed by police. His statement was recorded. When he was cautioned, the accused indicated he did not have money to pay for a lawyer. When asked if he wished to call a lawyer, the accused indicated he did not have any lawyers’ phone numbers.

HELD: Application allowed. The accused’s comments gave rise to circumstances that positively indicated a lack of comprehension, which required the police to ensure he fully understood his rights. The police failed to ensure the accused understood he had a right to timely and free legal assistance. Recitation of the right to counsel in the face of a positive indication the accused did not understand the right was not sufficient. The police did not meet their informational duty to ensure the accused knew he had a right to free legal counsel. Admission of the statement would bring the administration of justice into disrepute.

R. v. A.E.C., [2021] A.J. No. 916, Alberta Court of Queen's Bench, J.R. Ashcroft J., July 6, 2021. Digest No. TLD-August162021001