R. v. Bristol, 2011 ABQB 73

Court of Queen ’ s Bench of Alberta Citation: R. v. Bristol, 2011 ABQB 73 Date: 20110214 Docket: 080327604Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Keshroy Hilary Bristol Applicant/Accused Restriction on Publication: Permission having been given to the jurors to separate, information concerning this portion of the trial may not be published, broadcast, or transmitted in any manner before the jury retires to consider its verdict. See the Criminal Code , s. 648(1).

Corrected judgment: A corrigendum was issued on October 11, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. Editorial Note: Publication ban ended February 25, 2011 _______________________________________________________

Memorandum of Decision on Exclusion of Evidence (Statements): Sections 10(a), 10(

b) and 24(2) of the Charter of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ I. Introduction ............................................................................................................. Page: 3 II. Background .............................................................................................................. Page: 3 III. Issues ......................................................................................................................... Page: 4 IV.

Positions on Charter breaches .............................................................................. Page: 5 Defence Position ..................................................................................................... Page: 5 Crown Position ........................................................................................................ Page: 5 V. Analysis on Charter breaches ............................................................................... Page: 5 VI. The mandated approach under s. 24(2) of the Charter .................................... Page: 7 VII.

Analysis - s. 24(2) of the Charter ........................................................................ Page: 8 First stage - nature of the police conduct .......................................................... Page: 8 Second stage - the breach and the interests of the Accused .......................... Page: 9 Third stage - truth-seeking function of trial and the exclusion or admission of evidence ............................................................................... Page: 9 I.

Introduction [ 1 ] This is my decision on a motion by the Applicant (Accused) to exclude and/or prevent the use by the Crown at trial of statements made by the Accused during the course of interviews conducted by Detectives Mills and Clark of the Edmonton Police Service ( “ EPS ” ) on March 2-3, 2008. These statements were video and audio recorded on DVDs marked as Exhibits VD-6 and VD-7 at the voir dire . The defence applies to exclude these recordings based on alleged breaches of the s. 10(

a) and (

b) Charter rights of the Accused.

II. Background [ 2 ] Some of the context has been set out in my decisions in R. v. Bristol , 2011 ABQB 64 and 2011 ABQB 65 , but certain facts are repeated here for ease of reference. [ 3 ] Beverly Parker was killed at approximately 11:00 p.m. on February 28, 2008 at her residence in Edmonton. The Accused, the son of the deceased, his girlfriend Ms. Vega-Medrano, their child Mercedes and the brother of the Accused were also in the home at the time of Ms. Parker ’ s death. Detectives from the Homicide

Section of the EPS commenced their investigation of the homicide in the early hours of February 29. [ 4 ] On February 29 the Accused was taken to the downtown police headquarters of the EPS and was subjected to two interviews. [ 5 ] In the second interview the Accused was advised by Detective Clark that autopsy results confirmed that Beverly Parker had not died of a heart attack. Detective Clark stated that she had been murdered and a homicide investigation was underway. The Accused was then questioned about his knowledge of events on the evening of his Mother ’ s death.

This interview took almost 30 minutes. [ 6 ] On March 2, 2008 the Accused was brought to police headquarters for further questioning. Upon his arrival he was first asked to wait in an area of the police headquarters closed to the public.

He was then taken into a cell-like room where he was advised By Detective Mills that: “ ... everything we talk about today is ...... gonna be audio taped and video taped. ” The Accused acknowledged that what he said would be recorded and agreed that he was “ okay with that ” . [ 7 ] Detective Mills advised the Accused that he was speaking to him that day as part of the investigation of the murder of his Mother. [ 8 ] Detective Mills then told the Accused that he was not arrested, that he was not detained and that he (the Accused) was “ ... free to leave at any time ” .

The Accused acknowledged that he understood what was being said to him and that he had “ ... the option to stay or go ” . [ 9 ] Detective Mills proceeded to advise the Accused of his right to retain and instruct counsel and the Accused acknowledged that he understood his right to contact a lawyer.

When asked if he wanted to contact counsel, he answered “ I don ’ t think that will be necessary ” . [ 10 ] A form of waiver of the right to counsel was read to the Accused by Detective Mills and the Accused acknowledged that he understood the waiver and that he knew he could contact a lawyer at any time. [ 11 ] Detective Mills then read the standard police caution and again the Accused acknowledged the caution and indicated that he understood the use to which his statements to the police might be put in future court proceedings. [ 12 ] Detective Mills then moved the Accused to a ‘ hard ’ interview room where he was left alone for some period of time.

As the interview commenced Mills immediately stated:

“ ... And I wanna tell you right now I have no doubt in my mind right now that you ’ re responsible for the murder of your Mother. ” [ 13 ] The interview proceeded for approximately four hours. Detective Mills repeatedly asserted to the Accused that he was responsible for killing his Mother and the Accused continued to deny involvement. Detective Clark joined the interview and approximately half an hour later the Accused confessed to murder. [ 14 ] The Accused was then arrested by Detective Clark, who advised him of his s. 10(

b) rights. The Accused exercised those rights and a lawyer was contacted. After speaking to legal counsel the Accused made a further statement to Detective Clark in which he repeated his responsibility for the killing of his Mother and provided some additional details. It is these statements made late on March 2 and early on March 3 to these two police officers which the Crown seeks to admit at the pending trial and which the defence asks to be excluded. III. Issues [ 15 ] The issues raised on this application are: (

a) In these circumstances were the s. 10(

a) and (

b) Charter rights of the Accused breached? (

b) Should the statements by the Accused be excluded under s. 24(2) of the Charter in any event? IV. Positions on Charter breaches Defence Position [ 16 ] The defence argues that in these circumstances the Accused was detained, his right to counsel was triggered and the waiver was invalid. Further, the Accused was not made fully aware of the extent of his jeopardy and he was not able to exercise his s. 10(

b) rights in a meaningful way. Crown Position [ 17 ] The position of the Crown is that when viewed on an objective basis the Accused was never detained and the right to counsel under s. 10(

b) never arose because it had never been triggered. The Crown also takes the position that the Accused was fully aware of his position of jeopardy. V. Analysis on Charter breaches [ 18 ] I will deal with the detention question first.

[19] If the Accused was neither arrested nor detained then at all times, up to and including the making of the inculpatorystatements to the police, there was no breach of his s. 10(

b) rights. The right to counsel under s. 10(

b) only arises at the investigatorystage if a person is detained and the right to counsel is triggered. [20] The test for detention is an objective one and all circumstances must be examined. [21] Particularly pertinent circumstances relating to the detention issue arise from the discussions between Detective Mills and theAccused in the cell prior to the long interview in the ‘hard’ room. [22] Detective Mills’ statement to the Accused in the cell was compliant with the guidance given by the Supreme Court of Canadain R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 at para. 32 where the Court stated: In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open tothem to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go. That is exactly what Detective Mills did in the cell setting prior to commencing the longer interview. [23] The interview of the Accused conducted by Detective Mills continued for a long time but the Accused never asked to beallowed to leave the police headquarters.

He did express an interest in leaving the room to have a discussion with Ms. Vega-Medrano. However, despite the lengthy interview by Detective Mills in which Mills repeatedly asserted that the Accused had killed his Mother, theAccused did not say that he wanted to stop the questioning, or leave the police headquarters, or seek the advice of a lawyer. TheAccused was content to remain and make efforts to explain his non-involvement in the death of his Mother.

I conclude that he was notdetained and that he knew he was free to leave, but made no effort to do so. [24] On the jeopardy point, I take guidance from the Alberta Court of Appeal in the case of R. v. V. (S.E.), 2009 ABCA 108.Paras. 22 and 23 of V. (S.E.) provide a compendium of the authorities which are binding on me on this question: 22 It is trite that individuals who are detained for investigative purposes must generally be immediately advised, in clear and simplelanguage, of the reasons for the detention: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.) at para. 21, R. v.

Kelly (1985), (ON CA), 7 O.A.C. 46, [1985] O.J. No. 2 (Ont. C.A.) at para. 14. An individual can only exercise his s. 10(

b) right in ameaningful way if he knows the extent of his jeopardy: R. v. Black, (SCC), [1989] 2 S.C.R. 138, 50 C.C.C. (3d) 1(S.C.C.) at para. 24. In assessing whether the s. 10(

a) requirement has been met, it is the substance of what the accused can reasonablybe supposed to have understood in all the context and circumstances of the case, rather than the formalism of the precise words used,which governs: R. v. Evans, (SCC), [1991] 1 S.C.R. 869, 63 C.C.C. (3d) 289 (S.C.C.) at para. 35. 23 The pertinent question is whether the accused can reasonably be supposed to have understood the basis for the investigation:Evans at para. 35, R. v. Carrier, 2008 ABCA 134, 429 A.R. 107 (Alta. C.A. [In Chambers]) at para. 7; R. v. Lund, 2008 ABCA 373,440 A.R. 362 (Alta. C.A. [In Chambers]) at para. 11.

Failure to inform a suspect that he is being “arrested” and that he will be chargedwith a particular offence does not violate s. 10(

a) if, on the facts, the suspect understood the basis for his apprehension by the police andhence the extent of his jeopardy: R. v. Latimer, (SCC), [1997] 1 S.C.R. 217, 112 C.C.C. (3d) 193 (S.C.C.) at para. 31. In order to validly waive the right to counsel, the accused must generally understand the sort of jeopardy he faces but need not be awareof the precise charge faced, nor of all the factual details of the case: R. v.

Smith, (SCC), [1991] 1 S.C.R. 714, 63 C.C.C.(3d) 313 (S.C.C.) at para. 28. [25] Of particular importance and application is the statement from Smith that in order to validly waive the right to counsel anaccused person must generally understand the sort of jeopardy he faces, but need not be aware of the precise charge faced, nor all of thefactual details of the case. [26] With that statement in mind, here are the facts in this case:

(

a) On February 29 Detective Clark tells the Accused his Mother has been murdered and a homicide investigation is underway; (

b) At the outset on March 2 the Accused is told of his right to counsel, the police caution is administered and he waives his right tocounsel; and (

c) The interview starts in the ‘hard’ room and he is immediately advised by Detective Mills of his belief that he is involved in themurder of his Mother. As I have noted, those assertions are continued and the Accused denies them and the interrogation goes on forfour hours. [27] On these circumstances, viewed in an objective way, the Accused had to be aware that he was at the heart of a murderinvestigation and a serious suspect. I conclude that he was aware of the jeopardy in which he found himself and conclude further that hiswaiver of his right to counsel was valid. In the result, the Accused has not established to my satisfaction that there have been breaches ofeither his s. 10(

a) or (

b) rights under the Charter. VI. The mandated approach under s. 24(2) of the Charter [28] The Supreme Court of Canada has recently reconsidered the method for applying s. 24(2) of the Charter and has directed anew approach to the

interpretation and application of s. 24(2). That revised approach is set out in the decision of R. v. Grant, 2009 SCC32 , [2009] 2 S.C.R. 353 at paras. 67 - 71 and also para. 85. In its decision in R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494, which was released at the sametime as the decision in Grant, the Supreme Court of Canada summarized the exercise which a trial judge must go through in consideringthree lines of inquiry. That

summary is found at para. 21 of Harrison, and basically deals with the nature of the police conduct as thefirst stage of inquiry, the breach and the interests of the accused as the second stage of inquiry and the truth-seeking function of trial andexclusion or admission of evidence as the third stage of inquiry. [29] This aspect of the proceeding relates to whether the statements contained in Exhibits VD-6 and VD-7 should be excluded pursuant to the staged inquiry to be conducted according to Grant and the related cases from theSupreme Court of Canada. [30] However, before turning to that set of inquiries, I refer to para. 90 of Grant, which states that the common law confessionrules, quite apart from the s. 24(2) of the Charter, provide a significant safeguard against the improper use of a statement against itsmaker (here the Accused).

I have already found in R. v. Bristol, 2011 ABQB 65, that the Crown has met the burden of proving beyond areasonable doubt that the statements made by the Accused to Detectives Mills and Clark were voluntary and admissible. [31] I now proceed to an analysis and application of the staged approach mandated in Grant and Harrison to the circumstances ofthis case. VII. Analysis - s. 24(2) of the Charter First stage - nature of the police conduct

[ 32 ] Counsel for the defence argues that the effect of the failure by the police to adequately explain to the Accused the extent of his jeopardy undermined the waiver of his right to counsel and comes close to 'trickery'. That would amount to very serious conduct on the part of the police. [ 33 ] The Crown responds by characterizing the police conduct as a technical breach at most. It is argued that notwithstanding Detective Mills did not believe that he was detaining the Accused, he nevertheless told him that he was free to go at any time, explained his Charter guaranteed rights to a lawyer and cautioned him.

He sought and received from the Accused a lay understanding of all these areas. [ 34 ] Turning now to an analysis, I note that the Accused had already been told by Detective Clark that his Mother had been murdered and that an investigation was underway. This was repeated by Detective Mills. The Accused was provided with his Charter rights and a clear caution. He was asked to explain his understanding of his s. 10(

b) rights and he was able to respond with a lay description which was accurate. [ 35 ] Shortly after the session in the cell and then in the 'hard' interview room, the Accused was confronted with a blunt allegation from Detective Mills that he had killed his Mother. At this point he had been informed of his right to retain and consult counsel. At this point, he had to be aware of the extent of his jeopardy.

However, at no time in the ensuing interview did he ask for a lawyer or seek to leave the police building. [ 36 ] The Accused did exercise his right to counsel after he had made his first confession to Detective Mills and Clark. He took legal advice and then made a further confession to Detective Clark. When all of these factors are taken into consideration, I do not see serious misconduct on the part of the police. These considerations support the admission of this evidence rather than its exclusion.

Second stage - the breach and the interests of the Accused [ 37 ] As noted in Grant , it is necessary for a judge to evaluate the extent to which the Charter rights of an Accused person have been actually undermined. The seriousness of the infringement requires consideration of the interests engaged and the degree to which the violation affects those interests. [ 38 ] The defence position on this stage of the inquiry is that the rights involved here relate to the right of access to legal counsel and, by extension, the right to remain silent in the face of questioning by Detectives Mills and Clark.

Failure to provide proper information to the Accused such that he could make an informed waiver of his rights undermines the rights themselves. [ 39 ] The Crown argues that the Accused was aware of his right to counsel throughout the session with the two police officers and any breach had a minimal effect on his Charter rights. [ 40 ] The fact is that the Accused was clearly informed at the outset of his right to counsel and cautioned and shortly thereafter was accused of murdering his Mother in very blunt terms. [ 41 ] In my decision in R. v.

Bristol , ABQB 65 I have concluded the statements were made voluntarily and that no police misconduct in the nature of trickery exists in this case. Accordingly, the circumstances here point in the direction of the admission of the statements rather than exclusion. Third stage - truth-seeking function of trial and the exclusion or admission of evidence

[ 42 ] Counsel for the Accused concedes that this factor goes in favour of the Crown, but argues that the importance of the evidence, i.e. the statements, to the case for the Crown is only one factor to be considered. The Crown responds by noting that these confessions are at the very core of the prosecution ’ s case. [ 43 ] The truth-seeking function of a trial is fundamental to this stage of the inquiry. That raises the question of whether the statements made by the Accused are reliable and likely to be true. To some extent that follows from my decision in R. v.

Bristol , ABQB 65 where I have concluded the Crown has satisfied me beyond a reasonable doubt that the statements made were voluntary. [ 44 ] Further, these confessions are at the core of the Crown's case.

The statements have high probative value in establishing the elements which the Crown must prove beyond a reasonable doubt to obtain a finding of guilt on a charge of first degree murder. [ 45 ] At para. 81 of Grant , the Supreme Court of Canada stated that: ...exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. [ 46 ] I conclude on this line of inquiry that the circumstances here support the admission of the statements into evidence. [ 47 ] In the result, if there was a violation of the s. 10(

a) and (

b) rights of the Accused under the Charter , I conclude that the admission of the statements would not bring the administration of justice into disrepute. The statements will not be excluded under s. 24(2) of the Charter . Heard on the 6 - 8 and 10th days of December, 2010. Dated at the City of Edmonton, Alberta this 14 th day of February, 2011. D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Charles B. Davison for the Applicant/Accused Ms. E.M. Wheaton and Mr. J.R. Russell

for the Respondent _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ The judgment has been single-spaced and the index re-run to comply with the database requirements.