2015 NBCA 6, 2015 NBCA 6

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 160-12-CA CURTIS BONNELL APPELLANT CURTIS BONNELL APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Bonnell v. R., 2015 NBCA 6 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg Bonnell c.

R., 2015 NBCA 6 CORAM : l’honorable juge Richard l’honorable juge Bell l’honorable juge Quigg Appeal from a decision of the Court of Queen’sBench: November 3, 2012 Appel d’une décision de la Cour du Banc de laReine: le 3 novembre 2012 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: 2011 NBQB 349 2011 NBQB 376 2012 NBQB 103 2012 NBQB 309 2012 NBQB 321 2012 NBQB 395 Procédures préliminaires ou accessoires : 2011 NBQB 349 , 2011 NBBR 349 2011 NBBR 376 2012 NBQB 103 , 2012 NBBR 103 2012 NBBR 309 2012 NBQB 321 , 2012 NBBR 321 2012 NBBR 395 Appeal heard: April 29, 2014 Appel entendu : le 29 avril 2014

Judgment rendered: January 29, 2015 Jugement rendu : le 29 janvier 2015 Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Counsel at hearing: For the appellant: Peter A. Corey For the respondent: Cameron H. Gunn, Q.C. Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Bell Avocats à l'audience : Pour l’appelant : Peter A. Corey Pour l’intimée : Cameron H. Gunn, c.r. THE COURT The appeal is dismissed. LA COUR Rejette l’appel. The judgment of the Court was delivered by QUIGG, J.A.

I. Introduction [ 1 ] On November 13, 2009, the remains of Hilary Bonnell were discovered buried in a remote, wooded area near Tabusintac, New Brunswick. Members of the RCMP were led to the clandestine burial site by the appellant, Curtis Bonnell, on November 9. Two months previous to this discovery, Hilary had been reported missing by her mother, Pam Fillier, two days after her disappearance. This delay was likely because Hilary had left home for short periods on a number of previous occasions. Ms.

Fillier had last spoken to Hilary by phone at 3 a.m. on September 5, confirming plans to go back-to-school shopping together that afternoon. Ms. Fillier never spoke to her daughter again. [ 2 ] On November 3, 2012, after a seven-week jury trial, Curtis Bonnell was convicted of first degree murder of his cousin Hilary. On November 14, 2012, he was sentenced to life imprisonment with no parole eligibility for 25 years. Curtis Bonnell appeals his conviction. II.

Background [ 3 ] To set out the background against which this appeal is decided, I borrow liberally from the written submissions, as well as from the trial judge’s ruling on a motion for dismissal of the first degree murder Indictment (a non-suit motion). I will indicate any factual discrepancy where appropriate.

A. Events leading to Mr. Bonnell’s conviction [ 4 ] The Saturday morning of the Labour Day weekend 2009, Hilary Bonnell was travelling by foot on the Esgenoopetitj First Nation. Hilary had been out the preceding night at various parties with friends in the community. She and her mother, Ms. Fillier, had made plans to go shopping that afternoon as school was commencing that week. Ms. Fillier had spoken to Hilary by phone at 3 a.m.; this conversation was overheard by one of Hilary’s friends who was not intoxicated.

A surveillance system with both indoor and outdoor cameras at the 4D’s Convenience store in Burnt Church captured Hilary’s image between her arrival at the store at 7:43 a.m. and her departure at 7:45 a.m. (The time was adjusted for an error on the time clock of the video surveillance system in the store). On the video, she can be seen entering the store, inside the store, and then exiting in the direction of Route 11. Mr.

Bonnell was captured on the same video, arriving in his vehicle at 7:49 a.m. (adjusted time), and leaving the store to drive onto Route 11 toward Miramichi at 7:50 a.m. (adjusted time), heading in the opposite direction of Hilary. [ 5 ] As Hilary walked toward the center of Burnt Church, she was observed by various individuals travelling in their vehicles. None of these individuals noticed anything unusual in Hilary’s ability to walk: nothing indicated that she was intoxicated. These individuals were the last to see Hilary alive except for Curtis Bonnell, her first cousin who was 29 years of age at the time.

He later confessed he had picked Hilary up on the road and taken her to his residence where, after having intercourse with her on the lawn in his backyard, she died as a result of him attempting to keep her quiet during a struggle. According to Mr. Bonnell’s statement, the struggle had ensued between them as he would not pay her for sex, contrary to their agreement. [ 6 ] Mr. Bonnell was arrested on an unrelated charge on November 8, 2009, in circumstances that involved a short standoff between him and RCMP officers at his residence.

He was read an arrest script meant to convey to him his legal rights on both the unrelated charge and with respect to being the subject of a police investigation into the death of Hilary Bonnell. On November 9, 2009, Mr. Bonnell led RCMP officers to Hilary’s body in an isolated area of the Acadian Peninsula. Between the time of his arrest on November 8, 2009, and December 2, 2009, Mr. Bonnell was interviewed for approximately 40-50 hours. Some of the interviews were initiated by the RCMP but others were initiated by Mr. Bonnell. On December 2, 2009, Mr.

Bonnell gave a video recorded statement to the RCMP in which he confessed to causing the death of Hilary Bonnell. His defence at trial introduced a version of events different from what his earlier statements to the RCMP indicated, in which he does not remember the circumstances surrounding Hilary Bonnell’s death. [ 7 ] The trial was lengthy in that it involved several voir dire hearings and many hours of video tape. On October 24, 2012, the Crown closed its case after six weeks of evidence. At the close of the Crown’s case, Mr.

Bonnell moved for dismissal of the first degree murder Indictment, contending there was no evidence upon which a properly instructed jury, acting judiciously, could reasonably convict. Mr. Bonnell did not challenge whether there was evidence upon which a properly instructed jury could reasonably convict him of either second degree murder or manslaughter. The motion was heard on October 24, 2012, and dismissed on October 25, 2012, with reasons to follow.

At the time the motion was dismissed the judge outlined, in the jury’s absence, the general legal principles implicated in a motion for non-suit in a criminal trial. Written reasons followed on December 4, 2012, which substantively explained why the motion was dismissed ( see 2012 NBQB 395 , [2012] N.B.J. No. 455 (QL) ) . B. Motion for non-suit decision [ 8 ] The judge found Mr. Bonnell had admitted to sexual contact between himself and Hilary taking place minutes before he killed her.

There was circumstantial evidence from which the jury could reasonably infer she did not consent to the sexual contact and that she did not voluntarily go with Mr. Bonnell to his residence. The evidence included text messages between Hilary and a friend just prior to Hilary’s death, Mr. Bonnell’s state of mind and his admission to killing Hilary within 15 minutes of picking her up. The judge determined the Crown had met its burden on its main theory of sexual assault and/or unlawful confinement being part of a continuous series of events that culminated in murder.

He found a properly instructed jury, acting judiciously, could reasonably find proof beyond a reasonable doubt of first degree murder. C. Trial results

[ 9 ] The trial continued, the end result being the jury convicting Mr. Bonnell of first degree murder, resulting in a mandatory life sentence with no eligibility for parole for 25 years. D. Grounds of Appeal [ 10 ] When the Notice of Appeal dated November 30, 2012, was filed, Mr. Bonnell was representing himself. He enumerated nine grounds of appeal, some of which were based upon errors of fact. Counsel for Mr. Bonnell was subsequently appointed and, once retained, filed an Amended Notice of Appeal on January 16, 2014, which included a number of grounds relating to the judge’s charge to the jury.

Although counsel for Mr. Bonnell mentioned in his written brief that Mr. Bonnell might eventually withdraw some of his original grounds of appeal, this did not occur. As a result, the grounds of appeal are as follows:

(1) The trial judge should have granted Mr. Bonnell’s request for change of venue;

(2) The trial judge should not have admitted Mr. Bonnell’s statement because the police violated his Charter rights by questioning him when he was not in a condition to understand what was going on;

(3) The trial Judge should not have admitted Mr. Bonnell’s statements because he was not taken to court within 24 hours of his arrest;

(4) After taking the police to the burial site, Mr. Bonnell requested that he be read his “ Charter Rights ” but the police refused;

(5) The spiritual advisor whom Mr. Bonnell turned to was working for the police and “tricked” him into admitting to killing Hilary Bonnell, when he “didn’t kill her”;

(6) The trial judge should not have included 1 st degree murder in his charge to the jury when there was no evidence to support it;

(7) In his charge to the jury, the trial judge said that Mr. Bonnell had been “sarcastic” in his statement. The trial judge should not be allowed to tell the jury how to assess the evidence;

(8) In his charge, the trial judge didn’t tell the jury to consider how intoxicated Mr. Bonnell was

a) when he gave his statement; and

b) on the day that Hilary died;

(9) Mr. Bonnell wished to “ read the transcript of the trial because I can’t remember everything that happened in 8 weeks of trial”;

(10) The trial judge erred in not reviewing the substantial parts of the evidence on the charge of manslaughter and how it relates to the jury’s finding of facts on manslaughter, making the charge insufficient in law;

(11) The trial judge erred in allowing the admission of two text messages from the deceased as an exception to the hearsay rule;

(12) The trial judge erred in his use of the probative value of the statements which were made in the text messages in his instruction to the jury;

(13) The trial judge erred by not giving limiting instructions to the jury with respect to post-offence conduct of the accused; and,

(14) The trial Judge erred in failing to explain in his charge the definition of homicide pursuant to s. 222 of the Criminal Code of

Canada and amendments thereto. III. Analysis [11] Mr. Bonnell has raised a multitude of grounds of appeal relating to the admission of evidence and the charge tothe jury. Many of the issues before this Court arise from decisions in a series of voir dires. A. Change of Venue [12] Prior to the commencement of the trial, Mr. Bonnell filed a motion under s. 599 of the Criminal Coderequesting the venue of the trial be changed from the Judicial District of Miramichi to another Judicial District in New Brunswick (see R.v. Bonnell, 2011 NBQB 246, 410 N.B.R. (2d) 1). Mr.

Bonnell submitted negative pre-trial publicity resulted in a general prejudice in thecommunity toward him that was so adverse it would be unlikely that “a fair and impartial jury, free from any prejudice and/or animosityfrom the community” could be assembled to try the case against him. In his motion, Mr. Bonnell described the press accounts of the caseas “inflammatory and sensationalistic” (para. 5). The motion was dismissed. [13] The judge made this determination after undertaking a thorough review of the various media reports said to beprejudicial.

He then surveyed the role of the Charter in Change of Venue Applications, the requisite burden of proof, the quantum ofproof required to succeed on such a motion and the test to be applied.

The judge canvassed the applicable jurisprudence and states: Regardless of the choice of wording there is an acceptance, more acutely apparent after the Supreme Court's decision in Find, that invenue change motions based upon adverse pre-trial publicity the accused must first establish a reasonable probability of prejudice in thepotential jury panel that will be chosen from the community in which the offence is alleged to have occurred based upon that publicity.He or she must then establish the second aspect of the test, that is, that the legal processes that surround the empanelling of the jury, thetrial processes designed to assure fairness and the various instructions during the trial by the trial judge will not be successful ineliminating any bias that a potential juror might harbour against the accused entering the selection process.

Find at paragraph 40. [para.35] [14] In applying the test to the evidence before him, the judge determined the following: There are three distinct aspects of the evidence relevant to the issue of adverse pre-trial publicity.

They are: 1) the statements made bythe mother of the deceased; 2) the exposure to the media of some of the evidence obtained by police that may or may not be admissibleat the trial; and 3) the revelations in some of the articles that the accused had a criminal record, as well as other information related to hischaracter. [para. 40] [15] The judge concluded: To conclude, it is not apparent or inferable from the evidence led that the community of Miramichi harbours any significant negativesentiment towards the accused in this case.

This conclusion is based upon the nature of the pre-trial publicity as well as the effects of thepassage of time since the events that concern this case occurred. Thus, the evidence led fails to meet the first part of the test for venuechange, that is, it has not been established that there is: "very strong evidence of a general prejudicial attitude in the community as awhole ...". Even if the application to change the venue of the trial had been made of a trial that might have been anticipated to take placein early 2010 it is doubtful that the initial part of the test would have been satisfied.

That having been said, had the level of prejudice had risen to the level required, the second part of the test would have eliminated anyconcern whether the accused could receive a fair trial before an impartial jury. The processes surrounding jury selection, together withthe application of the rules of evidence admissibility, criminal trial procedure and jury instruction throughout the trial would haveeliminated any of the concerns that the trial would not have been fair and any verdict rendered in accordance with the evidence.

Finally, the size of a community can be a factor to be considered in determining whether to move a trial from its presumed location. R. v.Wilson, (SK KB), [1983] S.J. No. 623 (S.Q.B.) at paragraph 7 (Q.L. version). The evidence led at this motion

establishes that the size of the community is not an impediment to conducting the trial in this venue. It is clear that an ample pool ofqualified potential jurors exists from which a competent jury can be selected. [paras. 59-61] [16] In

summary, the judge found Mr. Bonnell had not established the community of Miramichi held any significantnegative sentiment toward him. Had it appeared the community’s prejudice toward Mr. Bonnell had ascended to the requisite level, theproper procedure used to select the jury, application of the rules for admissibility of evidence, and proper trial procedure and instructionsto the jury would eliminate any concerns of an unfair trial and verdict. I agree.

This Court can only interfere with the judge’s exercise ofdiscretion if he erred in principle or if the exercise of his discretion was unreasonable in all of the circumstances. [17] The long standing principle that a trial should be held in the location where the offence was committed hasbeen amended by s. 599(1) of the Criminal Code. Notwithstanding this provision, which allows for a change of venue, there is apresumption that an accused will be tried in the community where the offence occurred (see R. v. Yarema, [1990] O.J. No. 2785 (H.C.J.)(QL), at para. 23, affirmed (ON CA), [1991] O.J.

No. 712 (C.A.) (QL), leave to appeal refused [1992] S.C.C.A. No.49 (QL); R. v. Fitzgerald, [1981] O.J. No. 823 (H.C.J.) (QL)). [18] In R. v. Stillman (W.W.D.) (1997), (NB KB), 192 N.B.R. (2d) 298, [1997] N.B.J. No. 419(Q.B.) (QL), Larlee J. (as she then was) states: The case law indicates that an order for change of venue comes from an exercise of judicial discretion. It should not be made lightlybecause the accused should be tried in the territorial jurisdiction within which the alleged offence was committed.

The onus is on the applicant to establish a change of venue in order to insure that the accused has a fair trial by an impartial jury. Thechange is justified only where the applicant shows very strong evidence of general prejudicial attitude in the community as a whole. The applicant must establish that despite the safeguards inherent in the system including that of challenge for cause, that there is areasonable probability of prejudice. Extensive pre-trial publicity in and of itself is not sufficient to warrant the change.

The size of thejudicial district and the nature and extent of the pre-trial publicity are factors to be considered. The question to be answered has been stated like this: is a change of venue necessary in order to insure that the accused has a fair trial ina serene environment and is heard by an impartial jury? (R. v. Proulx, (1992) (QC CA), 76 C.C.C. (3d) 316.) [paras.7-10] [Emphasis added] [19] The trial judge adopted this test. Despite finding that: 1) Hilary Bonnell’s mother had made derogatorycomments about Mr.

Bonnell to the press; 2) the police erred in disclosing how they located Hilary Bonnell’s body; and 3) there wasdisclosure to the press that Mr. Bonnell had been before the courts previously on sex-related allegations and had spent time in prison, thejudge reasoned that other factors made a change of venue unnecessary. [20] In my view, the judge applied the proper law, made no error in principle and his decision is one of discretion.There is, therefore, no basis for appellate intervention on this ground. B. Admissibility of Statements Made by Mr. Bonnell [21] In his written submission, Mr.

Bonnell did not dwell on grounds 2-5 of the Notice of appeal in his writtensubmission, nor did Counsel at the hearing. In my view, these grounds can be examined together for the purpose of this analysis. Thestandard for review on the admissibility of a statement is predicated upon the characterization of the alleged error. In R. v. Oickle, 2000SCC 38, [2000] 2 S.C.R. 3, the majority reasons: Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts haveexcluded confessions made as a result of relatively minor inducements.

At the same time, the law ignored intolerable police conduct if itdid not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a courtshould strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the

confession's voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, suchas a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat,and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where the suspectis treated properly, it will take a stronger inducement to render the confession involuntary.

If a trial court properly considers all therelevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for "somepalpable and overriding error which affected [the trial judge's] assessment of the facts": Schwartz v. Canada, (SCC),[1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship "Kathy K", (SCC), [1976] 2 S.C.R. 802, at p. 808) (emphasisin Schwartz). [para. 71] [Emphasis added] [22] In R. v.

L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739, the Supreme Court states: Like voluntariness, the issue of whether a detained youth has received a clear explanation of his rights and options, and whether he hasunderstood those rights to the extent necessary for an effective waiver, are essentially questions of fact. In R. v. Oickle, [2000] 2 S.C.R.3, 2000 SCC 38, at para. 71, the Court held that a finding of voluntariness "should only be overturned for 'some [page761] palpable andoverriding error which affected [the trial judge's] assessment of the facts': Schwartz v.

Canada, (SCC), [1996] 1 S.C.R.254, at p. 279 (quoting Stein v. The Ship "Kathy K", (SCC), [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz)".The same is true for findings made pursuant to s. 146. [para. 55] [23] Prior to the trial, the Crown filed a motion to have certain statements made by Mr.Bonnell to RCMP officers during a series of custodial interviews, conducted between November 8, 2009, and December 2, 2009,admitted into evidence (see R. v. Bonnell, 2012 NBQB 24, 410 N.B.R. (2d) 95). Mr.

Bonnell opposed the motion on the basis that thestatements were the product of oppression and promises, and therefore were not proven to have been made voluntarily. Mr. Bonnell didconcede there was no evidence he was ever threatened by any of the police officers who interviewed him or had contact with him duringthat period. In his decision, the judge explains that counsel agreed to waive the necessity to call several individuals who had encounteredMr. Bonnell while they were in positions of authority (para. 13). These individuals were deemed not to be essential witnesses to theconcurrent motion hearings, and Mr.

Bonnell waived the requirement that they be present to testify on any of the issues engaged by themotions. The voir dire was conducted as a blended hearing during which voluntariness and Charter challenges were dealt with, from anevidentiary point, as one hearing. The trial judge did, however, separate the different legal principles engaged in the analysis. In the end,the judge determined the series of statements made by Mr. Bonnell to the police would be admitted as evidence. [24] The judge delineated the issues put forth by Mr.

Bonnell on the motion: 1) The police createdcircumstances that were oppressive during the first interview which induced Mr. Bonnell to make admissions; 2) This oppressionresulted in the admissions being involuntary in law; 3) Once the interview respecting the M.S. file was essentially completed and thepolice began to question Mr.

Bonnell about the Hilary Bonnell incident, they crossed the line into arbitrary detention; and 4) Mr.Bonnell also submitted that his legal jeopardy changed at that point when the questioning turned from one file to another to the extentthat a further Charter notice of the right to counsel was required (paras. 211-212). [25] In his decision, the trial judge sets out in detail the interaction between Mr. Bonnell and themembers of the RCMP, especially Cpl.

Gregory Lupson (now Sgt.): All of the relevant evidence to the motions involves contact by the accused with the R.C.M.P. officers assigned to this case and include,in detail, the following contact: 1. On November 8th and 9th, 2009 after his arrest for an unrelated sexual assault and forcible confinement complaint, that allegedlyhad just occurred, was lodged against him; 2.

On November 12th, 2009 when two officers from the investigating team went to the Moncton Detention Centre hoping to have theaccused sign a Consent to be released into their custody in order to be taken back to the burial site of Hilary Bonnell in the TabusintacNB area. On that occasion, an altercation occurred between the accused and several jail guards during which the accused struck andinjured two of them. The incident, the accused said, was caused by the refusal of the guards to allow him to have a picture of his sonPaxton in his cell with him.

The effort to have the Consent executed was abandoned for that day; 3. On November 13th and 14th, 2009 while on remand in custody at the Moncton Detention Centre on that unrelated series of chargesafter he signed a Consent to be released into the charge of the R.C.M.P. That release was authorized by a Judge of the Provincial Courtafter the Consent was filed with the Court; 4. On December 1st and 2nd, 2009 after he had contacted the lead investigator, then Cpl.

Greg Lupson by telephone from the MonctonDetention Centre, asking to return to a heavily wooded wilderness area outside Tabusintac NB where he had previously, on November

9th, 2009, led investigators to the site where Hilary Bonnell was buried he returned to it with them. At the outset of this last contact he again executed a Consent to be released from remand for those unrelated charges for that purpose. A Judge of the Provincial Court again authorized his release into the custody of the R.C.M.P. investigators. [para. 7]

(1) The evidence with respect to the interviews [ 26 ] During the voir dire Mr. Bonnell advanced four main premises regarding his interviews with police: 1) his fatigue during the November 9, 2009 interview; 2) his misapprehension of the legal jeopardy he encountered during the interviews of November 8 and 9, 2009; 3) the fear he claimed to have of Cpl. Lupson; and finally 4) his allegation that he was denied food and access to washroom facilities. [ 27 ] The trial judge meticulously combed the transcripts and video of the police interviews of Mr. Bonnell and then painstakingly detailed exactly what occurred.

The end result is a 107 page decision, which completely debunks Mr. Bonnell’s claims. In fact, the judge’s findings illustrate the opposite treatment toward Mr. Bonnell. (

a) Fatigue [ 28 ] Mr. Bonnell testified that on the evening of his arrest (November 8, 2009) he was under the influence of drugs and was fatigued. Yet, when asked about the circumstances surrounding the arrest, he recalled the standoff with police, being read the arrest script and that the officer he dealt with after exiting his residence was “polite, calm, and generous” with him (para. 192). Mr. Bonnell advised Cpl. Lupson during an interview that his recollection of a visit to the Tracadie Hospital following his arrest was “vivid”. Mr. Bonnell also testified he recalled being given a Charter warning by Cst.

Minville the morning of November 9. The Charter Notice included references to the Hilary Bonnell investigation. Overall, the judge concludes: There is no doubt that the accused was fatigued the morning of [November 9, 2009]. However, both Cpl. Lupson and Cst. Deveau were uncertain, especially Cpl. Lupson, whether that was a strategy he was employing to avoid pointed questioning. In any event, the accused, it will be recalled, was the one who refused to give up the search for Hilary Bonnell much later in the day when the police officers in the front seat of the vehicle they were all travelling in asked Cpl.

Lupson to consider giving up the search for the night and come back the next day. Instead Curtis Bonnell pointedly told them that he would: "stay all night" looking in the woods for the site if necessary. [para. 196] [ 29 ] The findings of the trial judge that Mr. Bonnell was, at least during some periods of the interview, assertive and engaged where it suited him, strongly indicate that Mr. Bonnell was not overborne by a weakened physical condition. Based on the above, it is evident Mr. Bonnell’s condition was not a significant factor in his decision to make admissions. (

b) Jeopardy [ 30 ] Mr. Bonnell claimed he spoke to police about the Hilary Bonnell case because he believed he had not been “charged” with that offence unlike the M.S. case (the unrelated charge on which he had been arrested). Mr. Bonnell submitted he did not comprehend the extent of the legal consequences and the importance of his right to contact legal counsel. He added Cpl. Lupson did not suggest he access a lawyer prior to the first interview. In the decision, the judge points out: It is not correct that Cpl. Lupson didn't encourage him to contact counsel on the Hilary Bonnell file before the interview began.

This fact was noted previously. Only a portion of that passage needs to be repeated to reconfirm that the officer made the suggestion to him before the interview began, after he had explained the arrest script and right to counsel: LUPSON: Is that something that you want to do? Ah, I gotta raise that issue because it might be something, like murder is a fairly serious charge and maybe something that you want to. BONNELL: Um. LUPSON: Go and take up on it, I would certainly encourage that.

BONNELL: Yeah, well Serge made that clear too. Um, I just don't believe I need one. On cross-examination, Mr. Richards reminded the accused that on another occasion Cpl. Lupson told the accused that he'd bring in Cst. Minville to take him to a telephone to call a lawyer. He reminded him that he had replied at the time that he did not need one yet. The accused was also read another portion of the interview by Mr. Richards during which Cpl. Lupson explained the arrest script to him. He was directed to a passage during which the accused told Lupson, in response to the explanation of the arrest script, that Cst.

Minville had made that part of it "clear" to him. The accused reverted, upon being told that, to his position that he felt the explanation dealt with the M.S. case. [paras. 198-200] (

c) Fear of Cpl. Lupson [ 31 ] Mr. Bonnell testified he had a generalized fear of police because of past encounters. The judge states: The accused explained that he held a generalized fear of police officers because of unspecified dealings he had with them in the past. However, infusing the fear theme with credence, as it is sought to be applied to Cpl. Lupson's behavior, is problematic for the accused. On at least three occasions while testifying the accused spoke about the fear he harbored of Cpl. Lupson. He said that the constant reference by others to Lupson as the: "big boss" led him to that conclusion.

His testimony generally suggested that he was led to believe that he had no choice in participating in the unfolding of the events during the interview and follow up efforts to find the burial site. [para. 201] [ 32 ] The judge discusses various stages of the interview process wherein not only is Mr. Bonnell not afraid of Cpl. Lupson, but he was aggressive with police at times: Finally, his aggressive stance throughout the interview on the M.S. file, including his challenge to Cpl.

Lupson to immediately take him to court on that "farfetched" allegation, stating that he would hire a lawyer and they would have a trial, was inconsistent with someone harboring fear of Lupson. [para. 207] (

d) Denial of food and other necessities [ 33 ] Mr. Bonnell testified he was not fed during the interview and food was only provided after he cooperated. This resulted in the belief he had no option but to cooperate if he wanted food, cigarettes, a bathroom break or access to a lawyer. The judge clearly illustrates this was not the case: The accused initially did ask for food when it was offered to him. (VD#6 p. 85/50-60) However, shortly thereafter he turned down efforts by the officers to get him some food. This refusal was repeated by him on at least two other occasions.

See, for example: V.D#6 pp. 97/29-52, 100/14. Finally he agreed to eat but when food was brought to him he gagged while trying to eat and vomited into the food bag. (VD#6 p. 165/23/43) He also testified that he was fearful of asking to go to the bathroom. It was pointed out to him that in the transcript at VD#6 p. 85 of he was told he could use the bathroom at any time. All he had to do was ask to go to it. [paras. 209-210]

(2) Witnesses’ Credibility [ 34 ] The trial judge undertook a comprehensive review of the credibility of Mr. Bonnell and the various police witnesses during the voir dire . The judge reviewed the applicable jurisprudence pertaining to oral evidence provided by accused individuals on blended voir dires . In the end, the judge determined that Mr. Bonnell’s testimony was littered with inconsistencies (para. 215). The judge also states:

There is no need to delve much more deeply into the evidence given by the accused on the voir dire than to point to the significantinconsistencies that have been largely highlighted in the

summary of his evidence previously set out. In addition to those credibility concerns there is the question of whether the accused was candid with the Court when he testified on thevoir dire that he did not appreciate the extent of his legal jeopardy with respect to the Hilary Bonnell homicide when the November 9th,2009 interview with Cpl. Lupson occurred. By the time Cpl.

Lupson began interviewing him at approximately 0924 hours on November 9th, 2009 the accused had been warned fourdifferent times about the nature of the investigations and the right to silence as well as the right he had to contact legal counsel, all withina ten hour period. Briefly, those occurred: [1] at the time of his arrest at his home in Burnt Church at 2353 hours on November 8th, 2009; [2] at the Neguac R.C.M.P. detachment a short time later when Cst.

Minville implored him on three occasions to call counsel becausemurder was a very serious offence; [3] at the Tracadie R.C.M.P. detachment at 0900 hours on November 9th, 2009 when Cst. Minville took him to the interview room andgave him his rights again reminding him that he had "strongly advised him" the evening before to contact counsel because one of thefiles concerned the homicide of Hilary Bonnell; and [4] at that same place at 0924 hours when Cpl.

Lupson took over the interview and gave him his legal rights to counsel and policecaution again, offered to provide him access to counsel, explaining how that would be accommodated logistically and then encouragedhim to contact counsel. The response from Curtis Bonnell was that "Serge [Minville]" had made that clear to him.

In the face of that evidence it is not possible to conclude that he was credible when he testified that he did not know the extent of hislegal jeopardy when the interview of November 9th, 2009 took place. [paras. 215-218] [35] In the end, the judge concludes the Crown met the requirements of R. v. W.(D.), (SCC), [1991]1 S.C.R. 742, [1991] S.C.J. No. 26 (QL), and rejects Mr. Bonnell’s testimony at the voir dire: In this instance the Crown has met the tripartite test and I have reached the conclusion that the testimony of the accused on the voir diremust be rejected.

There is no need to parse through the evidence a third time or to cite more examples of the lack of credibility in theevidence given by Curtis Bonnell in order to reasonably reach that conclusion. No more need be said other than that beyond theexamples of a lack of credibility already outlined there were more examples of that lack of credibility. Thus, the evidence of the accusedon the voir dire will be given no weight. Given that finding, there is no need to consider the assessment of the credibility of the accused separately on the Charter motion.

The testfor credibility assessment of a witness against the criminal standard set out above answers the question of his credibility against thelower civil standard the Crown would have to meet in order to ask that it be rejected because preferable evidence, on a balance ofprobabilities, is available. [paras. 220-221] [36] I agree. Essentially, there was no significant challenge launched against the evidence of police witnesses. Thiswas largely due to the fact that most of the interactions between Mr. Bonnell and the police were recorded in some manner.

The principalchallenge to the police evidence, which was not made by Mr. Bonnell in either his written or oral submission, centered on why Cpl.Lupson did not make notes of his initial conversation with David Gehue, the spiritual advisor requested by Mr. Bonnell, at the outset ofthe November 14, 2009 interview. The judge relates: The reason advanced by Cpl. Lupson for not having made notes was that Mr. Gehue was not a witness or a legal party to the proceedingin any way. Unfortunately, Mr. Gehue died some time ago. However, there was no issue raised that he may have been a police agent

during the time he was involved with the accused and this case. In fact, Cpl. Lupson testified that specific instructions were given by himto his subordinates that the only compensation that was to be given to Mr. Gehue was for his: "out of pocket" expenses for travel toTracadie on December 1st and 2nd, 2009 to participate [in] the events that unfolded at that time. I find no reason to doubt that officer onthat point.

The assessment of his credibility will thus fall to be determined on the audio/ video and audio recordings made during thevarious interviews and contacts with the accused between November 9th and December 2nd, 2009. [para. 224] [37] The judge then turns to an analysis of voluntariness, including oppression and promises. He also addresses theCharter issues raised, including the right to counsel and arbitrary detention. The judge also discusses an alternate Charter evidenceexclusion, tainting, and exclusion of evidence pursuant to s. 24(2) of the Charter.

(3) Voluntariness [38] In his decision to accept the various admissions made by Mr. Bonnell, the judge reviews the framework to befollowed when determining statement admissibility. The judge refers to R. v. Oickle: The modern confession rule requiring that the voluntariness of statements to persons in authority be proven beyond a reasonable doubtfinds its roots in the Supreme Court's decision in R. v.

Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 (S.C.C.) where the Courtreiterated the principles underlying the rule to be: 1) an avoidance of false confessions; 2) concerns about self-incrimination; and 3) afocus on the maintenance of the integrity of the administration of justice. Oickle divided the analytic framework for statement admissibility into two stages. The first is concerned with the assessment ofvoluntariness directed at the factors of an operating mind, threats, inducement and oppression. The second is focused on any allegationsof "police trickery". Oickle at paragraphs 42-5.

In this instance there were four especially important police contacts: 1) the November 8th and 9th, 2009 arrest-detention; 2) theNovember 12th and 14th, 2009 return to Tracadie from the Moncton Detention Centre; 3) the unsolicited November 21st, 2009 call fromCurtis Bonnell to Cpl. Lupson at his home that weekend; and 4) the December 1st and 2nd, 2009 return to Tracadie and the burial sitefrom the Moncton Detention Centre. [paras. 227-229]

(4) Oppression [39] Mr. Bonnell contends he was the victim of oppression during his interviews by the police, primarily during thefirst interview on November 9, 2009. He claims his poor physical condition at the time was apparent as he complained of fatigue, placedhis head down on the table in the interview room, asked if the interview could be postponed and at times was visibly ill. At one point,while left alone in the interview room, Mr. Bonnell laid down on the floor.

The judge set out the test for oppression as delineated inOickle and determined that, in this case, “significant periods of time separated one police contact from another over the period of twenty-four days during which the statements were taken by police” (para. 232). The judge reviews the chronology of events during theinterviews. Overall the judge found the following: As noted, this accused was an intelligent, experienced, sophisticated, savvy and careful interview subject.

He appeared to be, at the pointhe was prodding for details of the case against him, attempting to gauge the strength of the police evidence. That became more apparentlater that evening when, in meeting his father he told him the police had: "nothing on him" and that he made the decision to "bring Hilaryhome" for the family's sake. There were other examples of his conduct that reasonably lead to the conclusion that he was exercising a healthy degree of self-controlduring the November 9th interview.

The most convincing example that supports that conclusion arose just as the helicopter arrived atapproximately 1443 hours. Cpl. Lupson had earlier appeared to have established a rhythm in the interview that was aimed at convincingthe accused to disclose relevant information about the case, not the least of which was the location of the burial site of Hilary Bonnell.He then left the room for a short time. When he returned he was not able to reestablish the rhythm he seemed to have previously beenable to establish with Curtis Bonnell.

It was at that point that the accused spontaneously said to him: "I can see it in you. You think youlost." From the comment and the rest of what he said at that moment, it appears that the accused had been patiently watching theinterviewer during the interview and determined at that point that he should offer an evaluation of Cpl. Lupson's performance. Theimpact on Lupson was obvious. It unnerved him for a few moments. Those comments are consistent with another statement made by theaccused made earlier at approximately 1230 hours, alluded to earlier in the evidence

summary, when he said to Cpl. Lupson: "You're ona roll I could tell. You know you're..." again referring to the officer's performance.

The accused was very assertive at that time. As will be recalled, just prior to the accused's statement that Lupson had been "on a roll" the accused had asked for another cigarette. Lupson appeared to ignore the request. When the accused realized this he told him: " Let's just put it on the record that ah...you know I wanna go for a cigarette." Backed into a legal corner by the accused, Cpl. Lupson immediately left the room and brought back a cigarette and a glass of water for him. [paras. 237-239]

(5) Charter Issues [ 40 ] Mr. Bonnell submits there were two distinct breaches of his Charter rights during the police interviews. Both, he contends, occurred during the November 9, 2009 interview. He says the first was the failure of the police to advise him that the bounds of his legal jeopardy had changed when Cpl. Lupson had essentially completed the first stage of questioning, relating to the alleged sexual assault, and commenced questioning respecting Hilary Bonnell’s disappearance and suspected murder. Mr. Bonnell submitted that at that step, Cpl. Lupson was required to stop the interview and provide him with further notice of his Charter rights (re- Charter him). (

a) Arbitrary detention, Charter s. 9 [ 41 ] Mr. Bonnell contends he was arbitrarily detained by police for the period he was detained and questioned regarding Hilary Bonnell’s murder. Mr. Bonnell submits that, although he was lawfully detained for the purported sexual assault of M.S. because he had been arrested for that offence, he had not been arrested or detained for the Hilary Bonnell matter during the detention on November 9, 2009. As a result, in his view, the police had no right to question him with respect to the Hilary Bonnell file. At the time of Mr.

Bonnell’s arrest, the police were in possession of a “ Feeney warrant” (a warrant obtained pursuant to s. 529.1 of the Criminal Code ), permitting them to enter Mr. Bonnell’s home for the purpose of arresting him for the alleged sexual assault and forcible confinement. [ 42 ] Mr. Bonnell claims he had not been arrested for the murder, nor had he been formally detained for the murder under s.9 of the Charter . As a result, he claims he was not held properly on November 9, 2009, after questions regarding the sexual assault ended and questioning regarding the murder commenced. November 9, 2009 was a Monday, and Mr.

Bonnell contends he should have been taken before a Provincial court judge within 24 hours of his arrest. [ 43 ] The Crown submitted Mr. Bonnell was lawfully arrested and detained regarding the sexual assault allegation and lawfully detained with regard to the Hilary Bonnell murder investigation. However, the Crown did concede the detention became arbitrary when Mr. Bonnell was not taken before a judge within 24 hours of arrest. At the voir dire , Mr. Bonnell sought to have all evidence linked to the Hilary Bonnell matter excluded under s. 24(2) of the Charter .

He explicitly asked that any statement to police and any secondary evidence be excluded. The judge explains: The defence request is that all of the evidence related to the Hilary Bonnell file be excluded by application of the principles contained in s. 24(2) of the Charter .

Specifically implicit in that request is that any statements to police as well as any derivative evidence, including: 1) the evidence related to the location of the burial site of Hilary Bonnell by the accused; 2) the body of Hilary Bonnell itself; or 3) any exhibits taken from it or photographs of it be excluded from the evidence admissible at the trial. In some respects the request is similar to the request that succeeded in what has been dubbed: "the Christian Burial" case, a judgment of the United States Supreme Court. See: Brewer v.

Williams 430 U.S. 387 (1977). [para. 297] [ 44 ] The judge made numerous findings that inform this issue: a. The questioning of the Appellant on November 9 2009 ended almost to the minute at the twenty fourth hour of detention after his arrest (para. 393); b. The detention of the Appellant became arbitrary at that point (para. 393); c. Cpl. Lupson had subjective and objectively reasonable grounds to arrest the Appellant for murder (para. 330);

d. The accused was either de facto arrested or detained on the Hilary Bonnell file no matter whether Cpl. Lupson intended that to bethe case or not (para. 336); e. The Appellant had a clear understanding that he was in custody for both the M.S. sexual assault file and the Hilary Bonnell murderfile (para. 340); f. The Appellant was repeatedly advised of his rights with respect to both the sexual assault charge and the murder charge (para. 340); g.

The Police were entitled, having taken the accused into custody by way of specific arrest on the M.S. sexual assault file and bydetention or de facto arrest on the Hilary Bonnell murder file, to continue the investigation by questioning him and taking him out to tryto find the body once he agreed to do so (para. 342). [45] The transcript reveals that on cross examination Cpl. Lupson agreed he did not arrest or detain Mr. Bonnell forthe murder of Hilary Bonnell. [46] R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 sets out the law governing arbitrary detention: The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person's liberty is not tobe curtailed except in accordance with the principles of fundamental justice. As this Court has stated: "This guarantee expresses one ofthe most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law" (Charkaoui v.Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 88).

Section 9 serves to protect individual libertyagainst unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20), unless the lawauthorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. Earlier suggestions that an unlawful detention was not necessarily arbitrary (see R. v. Duguay, (1985), (ON CA), 18C.C.C. (3d) 289 (Ont. C.A.)) have been overtaken by Mann, in which this Court confirmed the existence of a common law police powerof investigative detention.

The concern in the earlier cases was that an arrest made on grounds falling just short of the "reasonable andprobable grounds" required for arrest should not automatically be considered arbitrary in the sense of being baseless or capricious. Mann,in confirming that a brief investigative detention based on "reasonable suspicion" was lawful, implicitly held that a detention in theabsence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9. This approach mirrors the framework developed for assessing unreasonable searches and seizures under s. 8 of the Charter.

Under R. v.Collins, (SCC), [1987] 1 S.C.R. 265, and subsequent cases dealing with s. 8, a search must be authorized by law to bereasonable; the authorizing law must itself be reasonable; and the search must be carried out in a reasonable manner. Similarly, it shouldnow be understood that for a detention to be non-arbitrary, it must be authorized by a law which is itself non-arbitrary. We add that, aswith other rights, the s. 9 prohibition of arbitrary detention may be limited under s. 1 by such measures "prescribed by law as can bedemonstrably justified in a free and democratic society": see R. v.

Hufsky, (SCC), [1988] 1 S.C.R. 621, and R. v.Ladouceur, (SCC), [1990] 1 S.C.R. 1257. [paras. 54-56] [47] The judge found Mr. Bonnell was lawfully arrested for the alleged sexual assault. After being advised of thereasons for his arrest, Mr. Bonnell was advised that, in addition to the sexual assault, he was also the subject of a police investigationinto the murder of Hilary Bonnell: Was Curtis Bonnell entitled to know that he had either been arrested or detained in relation to the Hilary Bonnell allegations? The answerto that question is found in Latimer as well.

The Court concluded at paragraphs 28-31 that the reason for being informed of the rightsaccruing to arrested or detained persons under s. 10 of the Charter was in order for those individuals to: 1) know the reason for theirarrest or detention; and 2) also it is difficult to exercise the right to counsel protected by s. 10(

b) of the Charter in a meaningful way ifone were not to be aware of the extent of one's legal jeopardy. Latimer at paragraph 28. The Court went on to conclude that in determining whether the police have complied with s. 10(

a) of the Charter, the informationcomponent, it is the substance of what the accused could reasonably be supposed to have understood, rather than the formalism of the words, that must govern the assessment. Latimer at paragraph 30.

Curtis Bonnell had a clear understanding that he was in custody for both the M.S. sexual assault file and the Hilary Bonnell murder file.In addition to the formalistic words that were contained in the arrest script used were the admonitions from both Minville and Cpl.Lupson that murder was a serious offence and that the accused should consult counsel. These rights and admonitions were given to himrepeatedly by them before the interview began on November 9th, 2009. [paras. 338-340] [48] Mr.

Bonnell submits his legal jeopardy had changed during the November 9, 2009, interview when thequestioning switched to the murder. The judge did not agree. The judge does, however, address whether, once Mr. Bonnell agreed tosearch for Hilary’s body, it was permissible for the police to pursue this avenue of investigation where they had only arrested him forsexual assault. The judge determines they could (para. 342), and relies on R. v. Storrey, (SCC), [1990] 1 S.C.R. 241,[1990] S.C.J.

No. 12 (QL): An arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation after thearrest. To repeat, in the case at bar the police had reasonable and probable grounds on which to base their decision to arrest the appellant.Further, there was nothing improper about the police intention to continue their investigation of the crime after they had made the arrest.Neither that intention nor the continued investigation made the arrest unlawful.

The circumstances of the arrest of the appellant did notconstitute an infringement of s. 9 of the Charter. [para. 28] In my view, the judge’s finding that Mr. Bonnell’s detention on November 9, 2009 was not arbitrary is correct and there is no merit tothis ground of appeal. (

b) Right to counsel (s. 10 of Charter) [49] At the time of his arrest late in the evening of November 8, 2009, Mr. Bonnell was read the “arrest script”prepared by Cpl. Lupson for the allegations of the sexual assault of M.S. together with the alleged murder of Hilary Bonnell. Mr.Bonnell was also given a warning in relation to self-incrimination. He was then immediately transported to the Neguac RCMPDetachment in order to expedite his right to contact counsel. As the interviews show, Cst. Minville urged Mr. Bonnell to contact a lawyerupon arrival at the detachment. Although Mr.

Bonnell was advised that murder was a serious offence he refused to contact counsel. Thejudge states: […] However, despite Cst. Minville imploring him to contact counsel at the police station that evening as soon as they arrived, andinstructing him that murder was a very serious offence, the accused refused to call a lawyer. […] [para. 298] [50] The evidence reveals numerous attempts by the police to have Mr. Bonnell contact counsel on November 8 and9: Cst.

Minville repeated all of the rights previously given to him in the interview room at 0900 hours on November 9th, 2009 to begin theinterview that would eventually be conducted by Cpl. Lupson. Cst. Minville reminded the accused what he had told him the eveningprevious, that he had strongly suggested that he contact counsel because murder was a serious charge. The accused confirmed to him thathe remembered the recitation. Once again he declined to call a lawyer. When Cpl. Lupson entered the room shortly thereafter he repeated the arrest script, explaining it as he went along.

Lupson thenrecommended to him: "Go and take up on it, I would certainly encourage that." to which the accused replied: "Yeah, well Serge madethat clear too. Um, I just don't believe I need one." Lupson then explained that he would have Minville come in and take him to a privateoffice to call a lawyer. In the next few moments the accused repeated the same response to the same question posed again. Then he saidhe did not need a lawyer "yet." Finally, as noted previously, Cpl. Lupson tried to get a definitive answer from him and when he was notable to he asked the accused what he meant by that response.

The accused put the question back to him asking: "What's it telling you?"Lupson replied: "To me I interpret that as no." The accused then confirmed it saying: "There you go." The interview then proceeded.[paras. 299-300] [51] In fact, the police advised Mr. Bonnell of his right to counsel four times between his arrest at midnight onNovember 8, 2009, and the morning of November 9, 2009. The police strongly urged him to consult counsel. As well, the delay inconcluding the interview could be attributed to Mr.

Bonnell’s refusal to discontinue the search for the burial site even though the policeofficers wished to do so. [52] On November 13-14, 2009, Mr. Bonnell was taken to Tracadie from the Moncton Detention Centre for further

interviews. Mr. Bonnell was, once again, advised of his right to counsel. Moncton lawyer, Wendell Maxwell, Q.C., was contacted onMr. Bonnell’s behalf. As the judge explains it: The most critical of the initial rights are the rights of a person whose liberty has been taken away by police to have access to counsel ifthey wish to and be told of that right in terms that adequately explain the general nature of the jeopardy he or she faces at the time theright to counsel is given.

There is no need for the accused to be given full information, that is, the precise charge or charges beingcontemplated or under investigation. Rather, what is necessary is that the accused be given an appreciation of the general extent of thejeopardy in order that he or she is able to make an informed decision whether to call counsel or not. See: R. v. Black, (SCC), [1989] 2 S.C.R. 138 (S.C.C.); R. v. Smith, (SCC), [1991] 1 S.C.R. 714 (S.C.C.); R. v. Evans, (SCC), [1991] 1 S.C.R. 869 (S.C.C.); and R. v.

O'Donnell, (1991), (NB CA), 118 N.B.R. (2d) 91 (N.B.C.A.) [para.302] [53] In his decision, the judge determined the “police more than satisfied that obligation” (para. 303). Mr. Bonnellwas advised of his right to counsel repeatedly prior to the commencement of the interview on November 9, 2009. He was also told hewas under investigation for the murder of Hilary Bonnell. Both Cpl. Lupson and Cst. Minville, independently of each other, promptedMr. Bonnell to contact a lawyer due to the fact that murder was such a serious charge: In the instance that Cpl.

Lupson gave the rights that morning, he went on to explain how they would physically facilitate contact withcounsel immediately. The accused told Lupson that Minville had made the right to counsel "clear" to him. Although, on one of the fouroccasions in that short period that morning, the accused did say he did not need counsel "yet." Cpl. Lupson was apparently not satisfiedwith that response and went further to eliminate any doubt that the accused might be equivocating with respect to whether he would call alawyer.

As noted, he finally gave an answer that satisfies me he clearly waived the right to contact legal counsel. Smith at paragraph 23;and R. v. L.T.H. 2008 SCC 49 , [2008] 2 S.C.R. 739 (S.C.C.) [para. 303] [54] Mr. Bonnell claims that, once the interview changed from the topic of the sexual assault allegation to that ofmurder, the police were required to advise him of his right to counsel for murder. The judge disagreed and found that from the momentof his arrest, Mr.

Bonnell had been “ clearly and repeatedly told the police had identified him as: “the subject of a police investigation” inthe 1) murder; 2) kidnapping; and 3) committing an indignity to a dead human body in the case of Hilary Bonnell”. (para. 304) [55] He determined Mr. Bonnell’s “legal jeopardy” had not changed at any time; the allegation under investigationhad not changed in any “legally significant way”. I agree. There was no change in jeopardy. Mr.

Bonnell had been advised repeatedlythat he was being investigated for the murder of Hilary Bonnell and of his rights as a result of that investigation. [56] The judge once again scrutinizes the evidence before him respecting the police action when handling Mr.Bonnell and is more than satisfied there was no s. 10 breach: The broader evidentiary context to that point was that the accused had been told repeatedly that if he wished to speak to a lawyer all hehad to do was ask to do so. It was the last thing Cpl.

Lupson said to him in the morning when, for the fourth time in less than twelvehours he been taken through all of his legal rights to both counsel and silence in the interview room as the substantive portion of theinterview was about to begin. On each occasion he waived the right to speak to a lawyer. That was an attitude he would hold throughoutthe interview process until it ended on December 2nd, 2009 with his confession except for the one occasion on November 14th, 2009when he called Wendell Maxwell before heading out in the truck with Cpl. Lupson from Tracadie to revisit the burial site.

In thatinstance he ignored the legal advice he received from Mr. Maxwell not to participate in anything the police wanted him to do. That was,of course, was the day he later withdrew his consent part way to the site and was taken back to Moncton. Curtis Bonnell was a self-assured talkative person by nature and very familiar with the legal system. He was mature at twenty nine andcomfortable in Cpl. Lupson's presence by the time he felt he had found the body on the evening of November 9th, 2009. For his part, asother officers had been to that point, Cpl.

Lupson was sensitive to the legal rights at stake that day for Curtis Bonnell. In the morning hehad been especially careful to encourage the accused to avail himself of the right to counsel. It was an attitude Lupson continued todisplay throughout the day and the rest of the time they were together until December 2nd, 2009. Repeatedly, on November 9th, 2009 hehad asked the accused if he was still consenting to continue the search for the grave site. Each time the accused said he was consenting,often taking charge of the search both psychologically and operationally. When it was over Cpl.

Lupson asked the accused if he'd beentreated fairly by him. He replied that he had been. I am satisfied that had he wanted to speak to counsel at that moment he talked about 'the reading of the rights' he would have told Lupsonthat he wanted to speak to a lawyer. He knew what his right to counsel was at the time. He knew that all he had to do was tell Cpl.Lupson he wanted to speak to counsel and Lupson would have been obliged to fulfill the promise he made to him in the morning to allowhim access to counsel anytime he expressed that wish. The statement he made did not undercut the previous waivers of the right to

counsel he had given, sometimes forcefully, and did not reengage s. 10 of the Charter such that the officer was obliged to give himanother s. 10 Charter notice at that time. [paras. 310-312] [57] In R. v. Fearon, 2013 ONCA 106, [2013] O.J.

No. 704 (QL), the Ontario Court of Appeal upheld a decision toadmit a statement notwithstanding a Charter breach, as the trial judge undertook the appropriate s. 24(2) analysis under Grant, and thebreach had no connection to the voluntariness of the statement (para. 81). [58] The November 9, 2009, interview and the taking of the police to the burial site were not connected to thefailure to take Mr. Bonnell before a Provincial court judge.

The judge found there was no obligation for the police to provide furthernotice of right to counsel when, on November 9, 2009, questioning changed from the alleged sexual assault to murder. [59] In the end, the judge decided not to exclude any of the statements under s. 24(2.) This was an exercise ofdiscretion. Considerable deference is owed to the judge’s assessment since he considered the appropriate factors. In R. v.

LeBlanc, 2007NBCA 24, 312 N.B.R. (2d) 321, Richard J.A. states: It is trite law that appellate courts must give deference to a trial judge's appreciation of whether the admission of evidence obtained inviolation of an accused's Charter rights would bring the administration of justice into disrepute. This was recently reaffirmed in R. v.Mann, [2004] 3 S.C.R. 59, [2004] S.C.J.

No. 49 (QL), 2004 SCC 52, where Iacobucci J. stated at para. 59: The standard of review applicable to a trial judge's decision about whether or not evidence ought to be excluded under s. 24(2) was alsodiscussed in Buhay, [[2003] 1 S.C.R. 631, 2003 SCC 30] at paras. 42-47. The trial judge's appreciation of whether the admission ofevidence would bring the administration of justice into disrepute is entitled to deference, as it is made on the basis of factors establishedthrough testimony.

This Court has affirmed the importance of deferring to the findings of lower courts in the context of s. 24(2) onnumerous occasions: see R. v. Duguay, (SCC), [1989] 1 S.C.R. 93, at p. 98; R. v. Greffe, (SCC),[1990] 1 S.C.R. 755, at p. 783; R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341, at para. 35; Buhay, supra, at para. 44. Thedecision to exclude evidence must be reasonable.

Reviewing courts will not interfere with the trial judge's conclusions on s. 24(2) "absentan 'apparent error as to the applicable principles or rules of law' or an 'unreasonable finding'" (Law, [[2002] 1 S.C.R. 227, 2002 SCC 10],at para. 32). [para.28] There is no merit to this ground of appeal.

(6) Spiritual Advisor [60] During a police interview on November 14, 2009, Cpl. Lupson had intended to repeat the Charter notice thatMr. Bonnell had the right to retain counsel as well as the right to remain silent. Before that could be done, Mr. Bonnell told Cpl. Lupsonhe “had a broken spirit” and had bad dreams during the previous night. He advised Cpl. Lupson that “in the dream a spirit told him thatin order to heal he would need the assistance of a ‘healing man”’ (see R. v. Bonnell, 2012 NBQB 34, 410 N.B.R. (2d) 210, at para. 13).Mr. Bonnell asked Cpl. Lupson to contact David Gehue, a spiritual advisor. Mr.

Gehue was unknown to Cpl. Lupson. The trial judgestates: It was apparent during this preliminary conversation between Cpl. Lupson and the accused on November 14th, 2009, prior to theproposed return to the burial site, that Curtis Bonnell held the spiritual elder, David Gehue, in high regard. He had met himapproximately ten years prior to November 2009 (VD#11 p. 129/30) at a national gathering of spiritual elders held at Big Cove NB FirstNation in eastern New Brunswick. He believed that Mr.

Gehue was a very powerful man who had healing powers. (VD# 11 p. 129/18)He claimed to have seen him heal people at Big Cove on the occasion they first met. (VD# 11 P. 131/37-40) Cpl. Lupson, on the other hand, initially did not want to involve David Gehue in the investigation process. When the accused identifiedhim as a person whose assistance he needed Cpl. Lupson told him he could not bring Mr. Gehue into the detachment for securityreasons. (VD#11 p. 113/35-40 and 46) The accused attempted to change Cpl. Lupson's mind saying: "I need that man ... sincerely."(VD#11 p. 114/37/42) Finally, Cpl.

Lupson appeared to realize that cooperating with the request was an important concession to theaccused. (VD#11 p. 114/44) [paras. 14-15] [61] Cpl. Lupson located Mr. Gehue in Nova Scotia, and communicated with him by telephone. Mr. Bonnell wastaken to a secure interview room and was allowed to speak to Mr. Gehue. This telephone conversation was surreptitiously recorded bypolice: During the rest of the conversation, that lasted only minutes, Mr. Gehue asked Curtis Bonnell whether he had taken a life. The accused

admitted that he had taken the life of a little girl. Mr. Gehue then asked if she was: "the Bonnell little girl?" He then went on to tell the accused that he had to be: "straight up honest" with the authorities and that if he did so he would come to see him and help him by conducting a ceremony so the spirits would stop bothering him. He added that he would start that process: "from here today." Then he told the accused he would not ask him why he had killed her saying: "... that's your, you know that's privately yours." (VD#11 p. 124/8- 32). [para. 21] [ 62 ] Mr.

Bonnell contends the elder was, unbeknownst to him, an agent for the police, and as such tricked Mr. Bonnell into confessing to the murder of Hilary Bonnell. This was not an argument advanced by Mr. Bonnell at trial. This ground of appeal runs headlong into the general rule that "appellate courts do not allow a question to be raised for the first time on an appeal" ( see R. v. Black , 2010 NBCA 36 , 360 N.B.R. (2d) 132 , leave to appeal refused [2010] S.C.C.A. No. 325 (QL); R. v. Thibodeau , 2005 NBCA 81 , 291 N.B.R. (2d) 162 , at para. 19 ) . [ 63 ] Regardless, in the decision respecting the admissibility of Mr.

Bonnell’s statements ( 2012 NBQB 24 ), the judge explains Mr. Bonnell did not raise any argument that Mr. Gehue was a police agent during their period of involvement (para. 224). According to Cpl. Lupson’s testimony, specific instructions were given by him to his subordinates that Mr. Gehue was only to be compensated for his “out-of-pocket expenses” while involved in the file. The judge stated he had no reason to doubt Cpl. Lupson respecting this issue. [ 64 ] Keep in mind Mr. Bonnell requested to meet with Mr. Gehue. Cpl. Lupson had no knowledge of Mr. Gehue and had to search for him. Any suggestion that Mr.

Gehue was a police agent is without foundation. Mr. Gehue was not paid, except for travel expenses, nor was he directed by the police to attempt to extract any inculpatory statements from Mr. Bonnell. With respect to police trickery (using Mr. Gehue to evoke a confession from Mr. Bonnell), there is quite simply no evidence of this occurring. A review of the evidence reveals Mr. Gehue may have been the catalyst for a confession, but it appears Mr. Bonnell’s conscience led him to confess. Therefore, there is no merit to this ground of appeal.

(7) Conclusion respecting admissibility of statements by Mr. Bonnell [ 65 ] Grounds 2-5 in the appellant’s written submission as they relate to the admissibility of evidence are, for the reasons set out in the preceding analysis, without merit. The trial judge made no error requiring appellate intervention in his extensive analysis of voluntariness, oppression, the alleged Charter violations, or Mr. Gehue’s role in obtaining Mr. Bonnell’s confession. The evidence was properly admitted. C. Admissibility of the text messages [ 66 ] Mr.

Bonnell contested the admission of certain text messages sent from Hilary Bonnell’s phone on September 5, 2009, to her cousin Haylie Bonnell on the basis that the prejudicial effect outweighed the probative value. After a voir dire on the issue, the trial judge allowed the admission of two of the four text messages in question. [ 67 ] Mr. Bonnell submits the decision of the trial judge to allow the admission of the two text messages allegedly sent from Hilary Bonnell to her cousin, Haylie Bonnell, was an error.

The text messages at issue appeared on Haylie Bonnell’s phone as: 1) @0725 “OMG Haylie I wanna leave” 2) @0740 “ where are yooou” 3) @0752 ”Plea8e answer me im scared” 4) @0820 “OMF text me im scared” [ 68 ] The trial judge determined the last two text messages were admissible as evidence of Hilary Bonnell’s state of mind, as well as for reasonably speaking to motive which could have a bearing on the identity of Hilary’s killer. Mr. Bonnell challenges that ruling. [ 69 ] The proper standard of review with respect to the admissibility of evidence shifts depending on the nature of the question. In Bari v.

R. , 2006 NBCA 119 , 308 N.B.R. (2d) 247, leave to appeal refused [2007] S.C.C.A. No. 236 (QL), this Court

says: Firstly, a court of appeal, absent manifest error, must accept the findings of fact made by the trial judge on which the ruling regardingadmissibility is predicated. The court must, however, apply a correctness standard to the ultimate question of whether the trial judgeproperly applied the criteria relevant to the admissibility of the evidence to the facts as found by the trial judge (see R. v. Hawkins, (SCC), [1996] 3 S.C.R. 1043, at para. 81; 111 C.C.C. (3d) 129; [1996] S.C.J. No. 117 (QL); R. v. Merz, (1999), (ON CA), 46 O.R. (3d) 161 (C.A.) at para. 49; [1999] O.J.

No. 4309 (QL)). [para. 18] [70] The Court must apply a correctness standard to the question of whether the trial judge properly applied thecriteria relevant to evidential admissibility to the facts as found by him. However, a high degree of deference is appropriate with respectto questions of probative value of impugned evidence against its potential prejudicial effect (Bari, at para. 19). [71] As the text messages were being offered for the truth of their contents, they were presumptively inadmissible.R. v.

Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 sets out the defining features of hearsay: The first matter to determine before embarking on a hearsay admissibility inquiry, of course, is whether the proposed evidence ishearsay. This may seem to be a rather obvious matter, but it is an important first step. Misguided objections to the admissibility of anout-of-court statement based on a misunderstanding of what constitutes hearsay are not uncommon. As discussed earlier, not all out-of-court statements will constitute hearsay. Recall the defining features of hearsay.

An out-of-court statement will be hearsay when: (1) it isadduced to prove the truth of its contents and (2) there is no opportunity for a contemporaneous cross-examination of the declarant.[para. 56] [72] R. v.

Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 informs us that hearsay may be admissible if it can beclassified within a traditional exception to the hearsay rule, or under the principled approach which allows for admission where thehearsay is necessary and reliable: The principled approach to the admission of hearsay evidence which has emerged in this Court over the past two decades attempts tointroduce a measure of flexibility into the hearsay rule to avoid these negative outcomes. Based on the Starr decision, the followingframework emerges for considering the admissibility of hearsay evidence: (

a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions tothe hearsay rule remain presumptively in place. (

b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by theprincipled approach. The exception can be modified as necessary to bring it into compliance. (

c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability arelacking in the particular circumstances of the case. (

d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity areestablished on a voir dire. (See generally D. M. Paciocco and L. Stuesser, The Law of Evidence (3rd ed. 2002), at pp. 95-96.) [para.15] [73] In the case before us, the judge considered whether the text messages would be admissible under the “state ofmind” exception found in R. v. Smith, (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J.

No. 74 (QL), where Lamer C.J. says: It would appear that at least the "state of mind" exception to the hearsay rule has been accepted in the English common law of evidence.The position seems to be that where the intentions or state of mind of the declarant are relevant to a fact in issue, hearsay evidence isadmissible, and, indeed, may be the best evidence to prove this. In R. v. Blastland, [1986] A.C. 41 (H.L.), Lord Bridge of Harwick said,

at p. 54, that: It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put inevidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person saidor heard said may well be the best and most direct evidence of that person's state of mind. This principle can only apply, however, whenthe state of mind evidenced by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issuewhich arises at the trial.

However, the Hillmon formulation of the "present intentions" exception, which allows inferences to be drawn concerning subsequentacts of the declarant, does not appear to have been accepted in English law. See R. v. Kearley, [1992] 2 All E.R. 345 (H.L.). The "present intentions" or "state of mind" exception to the hearsay rule has been recognized in the Canadian law of evidence as well: R.v. Wysochan, (1930), (SK CA), 54 C.C.C. 172 (Sask. C.A.): statements made by a dying person found admissible toprove how the death occurred; Home v. Corbeil, (ON SC), [1955] 4 D.L.R. 750 (Ont.

H.C.): statements made by anestranged husband found relevant to his intention to resume cohabitation with his wife, and therefore to his wife's pecuniary interest inhis continuing life. Most recently, in R. v. P. (R.), supra, Doherty J. summarized the case law and outlined the scope of the exception, andits limitations, at pp. 343-44, when he said: An utterance indicating that a deceased had a certain intention or design will afford evidence that the deceased acted in accordance withthat stated intention or plan where it is reasonable to infer that the deceased did so.

The reasonableness of the inference will depend on anumber of variables including the nature of the plan described in the utterance, and the proximity in time between the statement as to theplan and the proposed implementation of the plan. The rules of evidence as developed to this point do not exclude evidence of utterances by a deceased which reveal her state of mind, butrather appear to provide specifically for their admission where relevant.

The evidence is not, however, admissible to show the state ofmind of persons other than the deceased (unless they were aware of the statements), or to show that persons other than the deceasedacted in accordance with the deceased's stated intentions, save perhaps cases where the act was a joint one involving the deceased andanother person.

The evidence is also not admissible to establish that past acts or events referred to in the utterances occurred. [paras. 23-25] [Emphasis added in original] [74] Therefore, the evidence is only admitted as it relates to the state of mind of the declarant, and only if thatperson’s state of mind is in issue or relevant to an issue at trial. [75] The trial judge applied the above mentioned principles and determined the first text message was notadmissible as it was made at a time when Hilary Bonnell and Mr. Bonnell had not yet been in contact. As such, it was irrelevant.

Thesecond text message did not indicate a state of mind of Hilary Bonnell and was also deemed inadmissible. The third and fourth textmessages were both found to be admissible in the context of Mr. Bonnell’s admission that he had, on the morning of September 5, 2009,picked Hilary Bonnell up, taken her to his home, had sex with her on the pretext he would pay her for sex, and then killed her. The judgedetermined there was relevance in Hilary Bonnell’s state of mind and any defence that might be claimed. The judge considered thequestions of reliability and necessity, and decided that both criteria had been met.

The judge determined there was evidence that the thirdand fourth text messages were made at a time when Hilary Bonnell was in the presence of Mr. Bonnell based upon the testimony ofwitnesses, video from the 4D’s Convenience store, and bank records of a witness together with Mr. Bonnell’s own admissions. [76] The trial judge further concerned himself with Mr. Bonnell’s contention that the text messages were tooprejudicial to admit. The judge resolved there was no prejudicial effect. The fact the evidence indicates the guilt of an accused is not“prejudicial” for exclusion purposes.

In Bari, Deschênes J.A. said: What is meant by prejudicial effect is somewhat elusive but commentators have attempted to give it some meaning. It is explained asfollows in D.M. Paciocco & L. Stuesser, Law of Evidence, 4th ed. (Toronto: Irwin Law, 2005) at page 40: [...] The judge must then consider the costs presented by such evidence, including things as diverse as the practicalities of itspresentation, the fairness to the parties and to the witnesses, and the potentially distorting effect the evidence can have on the outcome ofthe case.

In a jury trial, the judge should even consider whether judicial direction can remove prejudice. Based on these considerations,

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