2017 QCCA 116, 2017 QCCA 116

Unofficial English Translation Branconnier c. R. 2017 QCCA 116 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC CITY No.: 200-10-003086-142 (400-01-063550-115) DATE: January 30, 2017 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. GUY GAGNON, J.A. GENEVIÈVE MARCOTTE, J.A. YVAN BRANCONNIER APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a conviction of first degree murder entered on October 7, 2014 by the Honourable François Huot of the Superior Court of Quebec, Criminal and Penal Division, District of Trois-Rivières, after a trial before a jury. [ 2 ] For the reasons of Rochette J.A., with which Gagnon and Marcotte JJ.A. agree, THE COURT : [ 3 ] DISMISSES the appeal. LOUIS ROCHETTE, J.A. GUY GAGNON, J.A. GENEVIÈVE MARCOTTE, J.A.

Mtre Pierre Spain and Mtre Alexandre Biron Biron & Spain For the appellant Mtre Louis-Charles Bal and Mtre Benoît Larouche Directeur des poursuites criminelles et pénales For the respondent Date of Hearing: October 25, 2016 REASONS OF ROCHETTE J.A. [ 4 ] The appellant submits that the verdict is unreasonable. He also appeals from a judgment on voir dire rendered on September

12, 2014, [1] which authorized, inter alia , the filing in evidence of a videotaped statement he made to an investigator on June 16, 2011, the same day as his arrest. According to the appellant, the judge erred in admitting this evidence because his statement was obtained by promises, threats and deception. * Background [ 5 ] The appellant was tried for the second time between September 3 and October 7, 2014, in connection with the murder of Jean- Guy Frigon, who was shot on November 29, 2009, while he was cutting trees on his woodlot near his home.

His son-in-law, Nicolas Bonamassa, avoided getting hit by a second shot and managed to make it back to Mr. Frigon’s residence. [ 6 ] The story goes back to 2003, the year the victim and his wife, Lise Alarie-Frigon, moved into the latter’s childhood home on Du Ruisseau-Plat Road in Saint-Édouard-de-Maskinongé. The couple’s daughter, Geneviève Frigon, owned the residence following the death of Ms. Alarie-Frigon’s father earlier that year. [ 7 ] A dispute quickly escalated between the couple and their neighbour, Solange Alarie, [2] concerning a fence delineating a strip of land that the Frigons believed they owned.

Ms. Alarie-Frigon testified that she and her husband were the victims of harassment by Solange Alarie, who insulted and made death threats against them. They suspected that she had committed numerous acts of vandalism on their land. [ 8 ] In 2004, the Frigon’s dog returned home with an empty beer bottle in its mouth. Written on the bottle were their names, along with threats and a drawing of a tombstone. Infuriated, the couple had surveillance cameras installed on the property which enabled them to identify Solange Alarie throwing a beer bottle onto their land.

The number of incidents and acts of violence diminished significantly after that. [ 9 ] In 2009, the Court of Quebec condemned Solange Alarie to pay the Frigons and their daughter Geneviève $51,000 for the hardship and inconvenience resulting from the mischief committed at their expense. Since this sum was not paid, Solange Alarie was served a writ of seizure of immovables on November 9, 2009. [ 10 ] On the last weekend of that November, the Frigons’ daughters [3] and their spouses were visiting St-Édouard to celebrate the birthday of the youngest member of the family, Caroline.

On Sunday November 29, only Geneviève and her spouse, Nicolas Bonamassa, remained in the house. At around 3:30 p.m., Jean-Guy Frigon decided to go cut some trees on his woodlot and Nicolas offered to go with him. They left. [ 11 ] While they were busy in the woods, Nicolas Bonamassa heard a loud noise. He turned around and saw Mr. Frigon fall to the ground. After putting down his saw, he quickly moved towards him and saw that his shoulder was injured. At that moment a second blast rang out steps away from him. He raised his eyes and saw an armed individual wearing a balaclava.

Panic-stricken, he ran back to the Frigon residence. [ 12 ] Jean-Guy Frigon was pronounced dead at the Louiseville hospital. [ 13 ] The appellant also lives on Du Ruisseau-Plat Road. In the past, he had held that he did not keep for very long. In 1998 or 1999, he started doing various paid tasks for Solange Alarie, including manual work of all kinds. He would drive her places from time to time. [ 14 ] The appellant knows the Frigons well. Lise Alarie-Frigon is his cousin, but they never spent time together. In 2007, the couple hired him to cut wood, which he did until April 2008.

In 2009, the appellant started to do more and more work and to run errands for Solange Alarie. He explained that these tasks were a significant source of income on top of the unemployment insurance and last resort assistance he received from time to time. [ 15 ] After a long investigation, the police came to connect Solange Alarie and the appellant to the murder of Jean-Guy Frigon. On June 16, 2011, they went to Solange Alarie’s home to arrest her. They found her unconscious and a few hours later she died in the hospital.

The appellant was brought to the police station, where he was questioned by Investigator Normand Lapointe for several hours. His videotaped interrogation [4] and its transcript [5] were entered into evidence. During the interrogation, the appellant acknowledged that he was present at the scene of the crime. [ 16 ] At trial, he gave his version. He said that he had received a telephone call from Solange Alarie on Saturday, November 28, 2009, while he was at the home of his partner, Patricia Beaudoin. Ms. Alarie asked him to pick up some fruit at the grocery store.

The next morning, she telephoned him again, asking him to bring her the fruit he had purchased the day before. [ 17 ] When he arrived at Solange Alarie’s home at around 2:40 p.m., she seemed agitated and asked him to go for a drive. She lowered the car seat so as not to be seen. When they drove past the Frigons’ residence, she asked him if he could lend her a weapon to scare them. The appellant agreed and went to his home. He changed and came back with two weapons, a .20-calibre and a .22-calibre.

When he asked Solange Alarie to choose one of them, she asked him to go with her into the woods, which he agreed to do. [ 18 ] As they walked along a path, Solange Alarie gave the appellant a balaclava and asked him to wear it. Although Solange Alarie had said many times in the past that she wanted to kill the Frigons, on that day there was allegedly no question that she only wanted to scare them with the weapons. [ 19 ] When they noticed the two individuals working in the forest, Solange Alarie said that it was not Lise who was with Jean-Guy, but his son-in-law.

When the appellant hesitated, she said to him, [ translation ] “If you don’t shoot, I’ll do both of them.” She then snuck her way towards them, leaned forward, and shot at Jean-Guy Frigon. The appellant then fired in the direction of Nicolas Bonamassa [ translation ] “to scare him, so that I could go home, because I had just seen that one of them was injured or dead and I didn’t want there

to be a second”. [ 20 ] After returning to the appellant’s residence, Solange Alarie gave the appellant back his clothes so that he could get rid of them, and then he drove her back to her home.

Such is the appellant’s version. [ 21 ] According to the prosecution’s theory, the appellant was aware of Solange Alarie’s intention to kill Jean-Guy Frigon and he committed several acts to help her carry out her plan. * Judgment on voir dire and verdict [ 22 ] The judgment on voir dire declared that three written statements taken during the investigation and the video recording of the appellant’s statement of June 16, 2011, were admissible in evidence.

Only the latter statement is the subject of this appeal. [ 23 ] The appellant argued that Investigator Lapointe promised him a lighter sentence and deceived him, making him believe that Solange Alarie could incriminate him when he knew that she was dead.

The judge considered the voluntariness of the statement in his analysis and rejected these claims. [ 24 ] Moreover, after deliberation, the jury found the appellant guilty of the first degree murder of Jean-Guy Frigon and acquitted him of the charge of attempted murder of Nicolas Bonamassa. [ 25 ] The appellant submits that the judge committed an error of mixed law and fact in ruling that the June 16, 2011 statement was admissible and that the verdict was unreasonable. * Analysis The judgment on voir dire [ 26 ] A statement made by an accused to a police officer or to a person in authority is admissible in evidence only if it is free and voluntary.

Furthermore, this common law principle is protected by the Canadian Charter of Rights and Freedoms , [6] although care must be taken not to confuse the confessions rule with the protections given by the Charter , as the Supreme Court, per Iacobucci J. for the majority, explained in Oickle : 31 These various differences illustrate that the Charter is not an exhaustive catalogue of rights. Instead, it represents a bare minimum below which the law must not fall. A necessary corollary of this statement is that the law, whether by statute or common law, can offer protections beyond those guaranteed by the Charter .

The common law confessions rule is one such doctrine, and it would be a mistake to confuse it with the protections given by the Charter .

While obviously it may be appropriate, as in Hebert , supra , to interpret one in light of the other, it would be a mistake to assume one subsumes the other entirely. [7] [ 27 ] The confessions rule originates from Ibrahim , [8] in which the Privy Council determined that it falls to the prosecution to show beyond a reasonable doubt that the accused’s extra-judicial statement “has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.” [9] [ 28 ] This rule has since been reiterated and expanded by the Supreme Court . [10] More recently, in Oickle , which I referred to above, the Supreme Court reviewed the relevant case law and deemed a reformulation of the rule was necessary: 68 While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple.

First of all, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it.

Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision . 69 … Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence.

If a confession is involuntary for any of these reasons, it is inadmissible. … 71 Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one . … Instead, a court should 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, such as 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 … On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. If a trial court properly considers all the relevant

circumstances , then a finding regarding voluntariness is essentially a factual one , and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts … . [11] [Emphasis added] [ 29 ] More specifically, concerning the use of police trickery, the Supreme Court began by noting: 65 A final consideration in determining whether a confession is voluntary or not is the police use of trickery to obtain a confession. Unlike the previous three headings, this doctrine is a distinct inquiry.

While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system. Lamer J.’s concurrence in Rothman , supra , introduced this inquiry. In that case, the Court admitted a suspect’s statement to an undercover police officer who had been placed in a cell with the accused. In concurring reasons, Lamer J. emphasized that reliability was not the only concern of the confessions rule; otherwise the rule would not be concerned with whether the inducement was given by a person in authority.

He summarized the correct approach at p. 691: [A] statement before being left to the trier of fact for consideration of its probative value should be the object of a voir dire in order to determine, not whether the statement is or is not reliable, but whether the authorities have done or said anything that could have induced the accused to make a statement which was or might be untrue.

It is of the utmost importance to keep in mind that the inquiry is not concerned with reliability but with the authorities’ conduct as regards reliability. 66 Lamer J. was also quick to point out that courts should be wary not to unduly limit police discretion (at p. 697): [T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work.

What should be repressed vigorously is conduct on their part that shocks the community . [12] [Emphasis added.] As examples of what might “shock the community”, Lamer J. suggested a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin. Lamer J.’s discussion on this point was adopted by the Court in Collins , supra , … 67 In Hebert , supra, this Court overruled the result in Rothman based on the Charter ’s right to silence. However, I do not believe that this renders the “shocks the community” rule redundant.

There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community.

I therefore believe that the test enunciated by Lamer J. in Rothman , and adopted by the Court in Collins , is still an important part of the confessions rule. [Citations omitted] [ 30 ] The author Yanick Laramée states that [ translation ] “the new, expanded rule considers the operating mind within the meaning of Whittle ” to determine whether [ translation ] “the accused’s free will was overborne by the police officers”. [13] Police trickery [ 31 ] There is no doubt that the investigator used deception. The judge wrote: [ translation ] [81] The use of deception is not in dispute.

Sergeant Lapointe acknowledges having been informed of the death of Solange Alarie [ translation ] “around half or three quarters of the way” through the interrogation and confirms that he deliberately chose not to disclose this information to the accused to avoid any possible contamination of his version. Lapointe says he would have chosen the same strategy had he been notified of the death before the interrogation began. [82] During the interview, the investigator first had the accused listen to the statement made by Solange Alarie in his absence, which had been recorded by a third person.

The police officer then explained to Branconnier that Alarie intended to [ translation ] “blame everything on him”. He added that the accused would have to decide whether he would [ translation ] “be taken for a fool” or “take charge”. He repeated the same advice to him in the minutes that followed. [83] The police officer agreed that he might have already known of Ms. Alarie’s death during the following conversation: [TRANSLATION] (NL): I’m taking the time to give you a chance to explain what happened. Because you have no idea what the others might do.

Do you have any idea how far Solange could go? (YB): Well, I know she saddled me with all the blame. (NL): Yvan, I’m going to say what one of my buddies already told you the last time we met: wake up… [84] When cross-examined on this excerpt, Sergeant Lapointe once again confirmed that he had deliberately chosen to keep Yvan Branconnier in the dark about the death of his alleged accomplice to prevent him from shifting his own responsibility onto her. [85] After asking Branconnier to think about [ translation ] “what… Solange could say”, the police officer suggested that she might choose to lie to the police.

He hammered home the possibility that Ms. Alarie would place all the blame for Mr. Frigon’s death on him, in these terms:

[ translation ] (NL): Like today, you’re going to decide on your own if you feel like telling me what happened from the time you stopped off at Solange’s place until the time you left the woods after Jean-Guy fell. You’re the one who’ll have to decide that. You’re the one who’ll have to think: what am I going to do now? Do I let her tell the story or do I tell my own story? Just ask yourself that question, Yvan. Just that. Just that.

You just have to say to yourself: do I trust Solange enough to believe that she won’t betray me or blame me for too much, or do I put my faith the person I trust the most in the world, myself. I hope you trust yourself, eh? (YB): Yes. (NL): Think about that. You promise me you’ll think about that? (YB): Yes. (NL): I’m coming back, I’m going to get you some water. You just have to think about that. When I got there, on the twenty-ninth (29th), around three o’clock (3:00), at Solange’s place, up until Yvan fell – Yvan – up until Jean-Guy fell, am I going to let Solange tell that story?

Do I let …. [86] A few minutes later, the police officer again urged Mr.

Branconnier to think about what Solange Alarie might say in her testimony, suggesting that he not let [TRANSLATION] “others draw the picture for [him]”. [Citations omitted] [ 32 ] The judge found that, thanks to this deceit, the appellant ultimately admitted that he was beside Solange Alarie at the time of the homicide, but that the deception could not be characterized as [ translation ] “improper and so appalling as to shock the community”: [ translation ] [87] In the few moments that followed, the accused admitted that he was with Solange Alarie on November 29, 2009, in the hour preceding the commission of the homicide.

After a brief bathroom break, Yvan Branconnier finally gave his version of the facts to the investigator. [88] In the view of the Court, there is no doubt that the accused’s confessions are directly attributable to the deception Officer Lapointe used.

By implying that Solange Alarie was still alive, the investigator clearly wanted Branconnier to believe that Alarie could incriminate him if she testified. [89] The defence argues that a police officer implying that a person close to the accused (and a presumed accomplice) is still alive when in reality she is dead amounts to deception so appalling as to shock the community. [90] With respect, the undersigned does not share this point of view. [91] First, the closeness between Solange Alarie and the accused is, all things considered, very relative.

At the end of the interrogation, when Yvan Branconnier learned of Ms. Alarie’s death, he showed no reaction that would suggest any form of attachment to her. No other evidence supports the hypothesis of a significant connection between these two individuals. [92] Moreover, even if such closeness actually existed, it would not have changed the analysis at all. [93] The use of deception, that is not against the law or in violation of fundamental Charter rights, to obtain a statement should not result in the exclusion of a free and voluntary confession unless the trickery used is improper and shocks the community.

As the Honourable Chief Justice Lamer explained in Collins , the threshold is “very high”. [94] In the case at bar, Yvan Branconnier does not argue that his right to remain silent was infringed. As in Rowe , at issue is whether the use of the previously described trickery is a “dirty trick” within the meaning in Rothman . … [95] In R. v. Alward and Mooney , a police officer had falsely stated in the presence of the accused that the victim had regained consciousness and would be able to identify his assailants.

The Court of Appeal of New Brunswick, per Limerick J., concluded as follows: The fact that Constable Munn said to Sergeant Scott in the presence of the appellant that the old man has regained consciousness and will be able to identify his assailants, - although untrue, and might induce a sense of fear in the appellant, would not render the statement inadmissible.

The fear contemplated by the rule of evidence is not a fear of being caught or identified or a fear induced by the accused's guilty conscience but a fear of reprisal if he failed to talk or give the statement. [14] [Citations omitted] [ 33 ] The judge also noted that [ translation ] “the videotaped interrogation shows that the exercise took place in a calm atmosphere and Yvan Branconnier was not subjected to any form of oppression whatsoever,” [15] that the appellant’s free will was not overborne by the trickery employed, [16] and that the police officer’s conduct [ translation ] “ is certainly not so appalling as to shock the community.” [17] [ 34 ] It should be noted that, before the Court, the appellant no longer raises the shocking nature of the trickery, but instead affirms that this, combined with promises and threats, [ translation ] “led [him] ... to confess.” [18] This reveals a certain confusion, since the Supreme Court observed in Oickle and more recently in Spencer that the police trickery doctrine “is a distinct inquiry” to determine whether the deception is so appalling as to shock the community. [19] It is true that, in Oickle , the Supreme Court also stated that deception can also be analyzed in connection with oppression, but there is nothing like that here.

[ 35 ] In my opinion, the judge correctly directed himself in fact and law in finding that the trickery used was not improper and shocking. Although it had an effect on the appellant, his free will was not overborne. The interrogation was conducted calmly, and the appellant confirmed his presence at the scene of the crime after returning from a break, as appears from the video recording entered into evidence. [ 36 ] In sum, the deception here does not undermine the integrity of the criminal justice system.

The authorities never “[did] or said anything that could have induced the accused to make a statement which was or might be untrue.” [20] It is not so egregious as to warrant the intervention of the courts. Moreover, the appellant raises no palpable and overriding error on the part of the trial judge in regard to these findings, which are essentially factual. In this respect, the appellant does not raise a reasonable doubt regarding the voluntariness of the statement. Threats or promises [ 37 ] The judge also rejected the appellant’s submission in this regard.

It is useful to reproduce the passages from his judgment that support his reasoning: [ translation ] [104] Note that the interrogation in question started at 12:02 p.m. and ended at 5:53 p.m. The accused began to confess at 4:31 p.m.

At 2:12 p.m., the investigator said to him: [ translation ] (NL): You, when you take a… a case like we have today and you have people who are involved in different ways in a murder, you have one person who prepared and who thought about committing the murder, and who made the plan, and who thought of a way to commit the irreparable, the murder in question, and one person who participated, who simply participated in the crime, do you think they deserve the same… the same punishment, the same blame? (YB): Well, blame, yes, but… in terms of weighing it, I’m not sure. (NL): What do you mean by that? (YB): Well, the person who did it, of course… logically, it would have to be harsher than the person didn’t do anything. (NL): That’s normal.

And the way to know that is to find out what really happened there. Really… . [105] Immediately after this exchange, Mr.

Lapointe insisted twice that it would ultimately be up to a judge or a jury to decide the fate of the accused. [106] At 3:00 p.m., the police officer again referred in these terms to the sentence applicable to the offence of murder: [ translation ] (NL): I asked you a question earlier: the person who plans the crime, who thinks about killing someone, who has a special interest, OK, who gets other people or a person to aid or assist, do you think that person deserves the same punishment, the same consequences? (YB): No. (NL): Good. How can we distinguish between the two?

By knowing each one’s role. (YB): Hm. (NL): Do you agree? (YB): Yes. [107] At 3:22 p.m., the investigator finally asked Yvan Branconnier to explain the motive for his crimes, suggesting that this would enable an eventual decision-maker to understand why he committed the offence: [TRANSLATION] (NL): What could be better? To explain what happened. What could be worse for a young man than to have stabbed a guy? In his case, that the guy was dead. But let’s say he was dead, what could be worse? Nothing, nothing worse. He was the one who stabbed him.

He said what happened, the motive, the reason he did it, why he ended up with a knife in his hand, why he stabbed him. I think that if I had to make a decision , if I had a case like that, that would change my perception of the case. I’m not telling you it will change everything, that we’ll forget what was done, no, but it helps you understand why he did it . It helps you understand that he’s not necessarily a person that… who one day might kill five (5), six (6), twelve (12) people in a row. It’s that he had… he did something because of bad things that happened in the past and he reacted poorly.

So it’s more his reactions to things that happened. In your case, it might be a reaction to injustice, it might be… because a lady had a piece of land stolen from her, maybe it’s your reaction to a woman who is very, very imposing, very manipulative. It could be that. But you’re the one who can explain it. (Emphasis added) [108] Counsel for the defence submits that the above-cited passages are akin to promises or threats since they allude more to the legal consequences of the alleged crime than the moral consequences. There is even a reference to [ translation ] “punishment”, which could

only create fear in Mr. Branconnier.

As for the notion of a “promise,” it must be interpreted more broadly than the classic example of a person in authority suggesting to a suspect that he or she will take steps to obtain a reduced charge or sentence if the suspect confesses. [109] The authors Bryant, Lederman and Fuerst summarize the teachings of the Supreme Court on the concept of [ translation ] “promises or threats”: … Justice Iacobucci recognized that few suspects spontaneously confess to committing a crime and the police somehow have to convince suspects that it is in their best interest to make a statement.

Thus, police interrogation techniques that attempt to convince an accused to confess will not necessarily render a confession involuntary. Inducements only become improper when, standing alone or in combination with other factors, they are strong enough to raise a reasonable doubt whether the will of the suspect has been overborne. In the Court’s opinion, the most important consideration is whether a quid pro quo offer is made as part of the inducement .

In cases of physical violence or clear offers of lenient treatment, one may be able to precisely identify the terms of a reciprocal bargain and its effect on the voluntary nature of a confession. Where a promise or threat is subtle or veiled, however, it may be difficult to say with confidence that the resulting confession is a quid pro quo of the police conduct, especially if the statement is made in the course of a lengthy interrogation .

The majority in Oickle found that the accused’s statement was voluntary because there was no causal connection between the inducement offered by the police and the subsequent confession. (Emphasis added.) [110] In this case, Sergeant Lapointe made no quid pro quo offer to the accused in exchange for his confession.

This shows the absence of a promise or threat. [111] Even if the Court had found that such a quid pro quo offer existed, it would have had to bear in mind that the importance the accused himself gave to the inducements is what had to be assessed in the overall contextual inquiry into the voluntariness of the statement.

However, Yvan Branconnier chose not to be heard during the voir dire , and considering the situation he found himself in on June 16, 2011, nothing suggests that he gave the inducements referred to above the importance that his counsel gives them today. [112] But there is more. [113] The [ translation ] “promises or threats” to which Mr. Branconnier refers were made more than one hour before the accused gave the investigator his version of the facts concerning the events of November 29, 2009, during an interrogation that lasted close to six hours in total.

Considering the length of this interview, the undersigned does not believe that the accused’s account stemmed from a quid pro quo offer as subtle or veiled as that asserted by the defence. [114] Furthermore, the undersigned has already concluded that Yvan Branconnier’s confessions were not any kind of quid pro quo , but rather the result of the police trickery described above, which is in no way so appalling as to shock the community. [Citations omitted] [ 38 ] It goes without saying that “fear of prejudice” or “hope of advantage” is likely to vitiate the free and voluntary nature of a statement.

This would be the case, for example, when the interrogated person is promised a reduced sentence or greater leniency from the court, as the Supreme Court observed in Oickle : … The classic “hope of advantage” is the prospect of leniency from the courts. It is improper for a person in authority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses .

Therefore in Nugent , supra , the court excluded the statement of a suspect who was told that if he confessed, the charge could be reduced from murder to manslaughter. … Intuitively implausible as it may seem, both judicial precedent and academic authority confirm that the pressure of intense and prolonged questioning may convince a suspect that no one will believe his or her protestations of innocence, and that a conviction is inevitable.

In these circumstances, holding out the possibility of a reduced charge or sentence in exchange for a confession would raise a reasonable doubt as to the voluntariness of any ensuing confession . … [21] [Emphasis added – Citations omitted] [ 39 ] In Spencer , the Supreme Court explained that the analysis must look at the effect that the promise had on the accused and not simply the nature of the promise: … Furthermore, what occupies “centre stage” is not the quid pro quo , but voluntariness — it is the overarching subject of the inquiry, and this should not be lost in the analysis.

As discussed above, while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness . [22] [Emphasis added] [ 40 ] Recently, the Manitoba Court of Appeal heard a case similar to the one before us. [23] During the interrogation of the respondent Coaster, who had been arrested for murder, the police officers said they did not know which charges would be brought against him.

They told him that “ which charge he faced could make a ‘big difference’ in terms of when he would get out of jail.” [24] The police officers told him that it was up to him to define his role in the face of the inevitable: “Now is your chance, Charles, help yourself out.” [25] [ 41 ] The Manitoba Court of Appeal concluded that the trial judge had not erred in admitting the accused’s confession in evidence, considering his maturity, his good understanding of the justice system and interrogations, the fact that he was calm and controlled and, lastly, the absence of oppression by the police officers: [24] While the officers did not provide misinformation to the appellant during the interrogation, I agree with the appellant that some of the officers’ comments involved risky language to the effect of “it will be better if you told the truth.” However, as the judge properly noted in her reasons, such language does not lead to automatic exclusion; context is the controlling consideration ( Oickle at para. 54 ).

… [26] It is conceded that the appellant was treated properly by the police; there was an absence of oppressive circumstances.

In such a case, a strong inducement would be necessary to render his confession involuntary ( Oickle at paras. 71, 87 ). [27] While an implicit offer of lenient treatment and the possibility of a reduced charge may not have the same impact as an explicit offer of leniency, particularly in a situation such as this where the officers repeatedly made it clear that the Crown Attorney, not them, would decide the appellant’s charge , such an inducement is still, in my view, a significant one because, “[t]he classic ‘hope of advantage’ is the prospect of leniency from the courts” ( Oickle at para. 49 ). [28] That said, despite the strength of such an inducement, the judge concluded, based on her evaluation of the video-recording of the statement and the evidence on the voir dire from the officers and the appellant, that the appellant was quite capable of resisting the officers’ pressure.

She found that the police tactics had no “coercive effect” on him (at para. 29). In my view, that finding was open to the judge . [26] [Emphasis added] [ 42 ] These observations apply equally to the case at bar. [ 43 ] It is instructive to reproduce the warning given by the investigator here, which the judge referred to, without quoting it directly, in paragraph 105 of his judgment: [TRANSLATION] N.L. … Because us, our job, is just to bring the case to court. I’m not the one who’ll decide whether you’re guilty or not. That’s not me, there’s a judge for that.

The police gather the evidence and we bring it before a prosecutor; he decides if there’s enough evidence to bring charges. After that, he brings it to court and they’ll decide if there’s enough evidence to go to trial. … There’s a jury or judge who’ll make the decision. So that, that’s my job. [ 44 ] At 4:28 p.m., the appellant began to confess. [ 45 ] The trial judge found, first, that no promise had been made to the appellant and, second, that the impugned words did not influence his decision to confess further to what has been characterized as [ translation ] “police trickery”.

More than one hour elapsed between the alleged [ translation ] “threats or promises” and the appellant’s confession. The interrogation took place in a calm atmosphere. The appellant does not show how these findings, which resulted from a contextual analysis of the interrogation of June 16, 2011, are tainted by a palpable and overriding error. [ 46 ] Thus, the evidence adduced at the voir dire stage did not raise any reasonable doubt as to the voluntariness of the appellant’s confession. The investigator’s comments were not such as to overbear the free will of the appellant.

The unreasonable verdict [ 47 ] In the view of the appellant, it is clear from his videotaped interrogation of June 16, 2011, and his testimony that he never had the requisite mens rea to be convicted of murder under

section 21 Cr.C. He was not aware of Solange Alarie’s intention to kill Jean-Guy Frigon, believing that they were simply going to scare him. He notes that he was acquitted of the attempted murder of Nicolas Bonamassa.

The lack of proof of intent, he argues, renders the verdict of first degree murder unreasonable. [ 48 ] The Court may not intervene in this regard “[if] the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.” [27] The analysis of the reasonableness of the verdict remains the same whether the conviction is based on circumstantial or direct evidence. [28] The Court “must re - examine and to some extent reweigh and consider the effect of the evidence” to determine whether such a verdict could reasonably be rendered. [29] [ 49 ] In Biniaris , the Supreme Court explained the applicable standard of review: It is insufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based on its own review of the evidence.

This “lurking doubt” may be a powerful trigger for thorough appellate scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, a proper basis upon which to interfere with the findings of a jury. [30] [ 50 ] That said, assessing the credibility of witnesses is inherently a fact-finding exercise, and it is well established “that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.” [31] As the Supreme Court made clear in François , it is for the jury to decide whether or not to accept the accused’s version of the facts: In considering the reasonableness of the jury’s verdict, the court of appeal must also keep in mind the fact that the jury may reasonably and lawfully deal with inconsistencies and motive to concoct, in a variety of ways.

The jury may reject the witness’s evidence in its entirety. Or the jury may accept the witness’s explanations for the apparent inconsistencies and the witness’s denial that her testimony was provoked by improper pressures or from improper motives. Finally, the jury may accept some of the witness’s evidence while rejecting other parts of it; juries are routinely charged that they may accept all of the evidence, some of the evidence, or none of the evidence of each witness. It follows that we cannot infer from the mere presence of contradictory details or motives to concoct that the jury’s verdict is unreasonable.

A verdict of guilty based on such evidence may very well be both reasonable and lawful . [32] [Emphasis added]

[ 51 ] In Grover , the Supreme Court stated that in cases where the jury rejects the explanation given by the accused, an appeal court cannot declare the verdict unreasonable by coming up with another rational explanation. [33] [ 52 ] In cases of aiding a person to commit an offence, [34] the prosecution must prove that the accused intended to assist the principal in the commission of the offence while having knowledge of the principal’s intention to commit such

an act. [35] In Briscoe , the Supreme Court stated that wilful blindness may be tantamount to knowledge of the principal’s intention: [21] Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea .

The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. … As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” [36] [Citation omitted] [ 53 ] First, the fact that the jury acquitted the appellant of the charge of attempted murder has no relevance.

The existence of reasonable doubt as to his intent to kill Nicolas Bonamassa can be reconciled with the guilty verdict rendered. The appellant could have known Solange Alarie’s intention to kill Jean-Guy Frigon and done things to assist her in carrying out her plan without intending to kill Mr. Frigon’s son-in-law. These are neither the same acts nor the same person. [ 54 ] Furthermore, judicial fact-finding could have validly led to the same conclusion as that drawn by the jury.

Note that the following evidence supports the argument that the appellant knew or chose to ignore to the fact that Solange Alarie wanted to kill Jean- Guy Frigon: • Solange Alarie told him several times that she intended to kill the Frigon couple. [37] In examination in chief, the appellant said that five, six or seven months before the murder, she had told him that she wanted to see the Frigons dead.

In cross-examination, he said that it had been planned five or six months in advance, but that it wasn’t supposed to be a murder: [ translation ] Q. … The knowledge of that plan, it was supposed to induce fear, so you knew it wasn’t supposed to be a murder? A. It wasn’t supposed to be a murder. Q. So you knew that in advance? A. Well, yes. Q. Five (5), six (6) months in advance? A. Well, let’s say she talked about it, but that day, we [ [38] ] didn’t remember. I didn’t make the connection then and there. … Q.

But five (5), six (6) months before, we should understand from your statement to Officer Lapointe [ translation ] “She talked to me about it five (5) or six (6) months before,” that it was to scare them? A. Yes. • In the statement to which counsel refers, however, the appellant said that he knew five or six months before the murder that Solange Alarie wanted to [ translation ] “shoot” the Frigons: [ translation ] N.L. Is there someone else who was aware of her plans or did she decide it like that?

When did she say: I’m going to do it that way, I’m going to hide in the woods and I’m going to wait until they go cut some trees. Y.B. Well I, she talked to me about it five (5), six (6) months before. N.L. What exactly did she say to you? Y.B. Well, the best place, it’s… she said, [ translation ] “they cut trees there in the fall”. … N.L. Did she intend to kill Lise too? Y.B. Yes. N.L. That, when did she tell you that? Y.B. Before. • Solange Alarie’s alleged words exactly match the scenario that unfolded.

Moreover, they went into the woods with their faces concealed by a balaclava, armed with rifles and many spare cartridges. In his videotaped statement, the appellant said: [TRANSLATION] N.L. Why did you each have a firearm? Y.B. Well, each of us had a weapon; let’s say... to show that I was on board.

N.L. You didn’t decide: I’ll shoot Lise, you’ll shoot Jean-Guy. Y.B. No. N.L. Did you talk about that? Y.B. She talked about that, but I didn’t... I didn’t say I’m choosing one of them. N.L. What did she say to you? What did she talk to you about? Y.B. Well, she said, [ translation ] “If you don’t shoot,” she said, “I’ll do both.” N.L. If you don’t shoot… Y.B. I’ll do both. That’s why she wanted spare cartridges. • When questioned by Investigator Lapointe about his knowledge of Solange Alarie’s plan when she got into his car, the appellant answered: [ translation ] N.L.

When you... when you picked up Solange, when she got into the car, lowered her seat, you were heading to your place; at that time, did she tell you what she was going to do? Y.B. Well, I had an idea, yes. • During the investigation, the appellant lied to the police by leading them to believe that it was a settlement of accounts linked to organized crime.

Questioned about this, the appellant explained that he wanted to [ translation ] “protect himself.” • In his videotaped statement, the appellant said that when he arrived at Solange Alarie’s home the day of the murder, she was angry because [ translation ] “her house was being seized.” At trial, he contradicted this statement, claiming that he only learned about the legal proceedings in March 2010.

Confronted with his videotaped statement, he explained that he had made a [ translation ] “mistake” in this aspect of his testimony. [ 55 ] In sum, the appellant has not shown that the verdict was unreasonable. [ 56 ] For these reasons, I would dismiss the appeal. LOUIS ROCHETTE, J.A.