HER MAJESTY THE QUEEN v. JASON DANIEL MACKAY,, 2003 NBQB 188

R. v. MacKay, 2003 NBQB 188 S/CR/15/02 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: HER MAJESTY THE QUEEN -and- JASON DANIEL MACKAY, BEFORE: Justice Peter S. Glennie TRIAL HELD: Hampton, N.B. DATE OF DECISION: March 21, 2003 COUNSEL

John A. Henheffer, on behalf of the Crown Brian D. Munro, on behalf of Jason Daniel MacKay D E C I S I O N GLENNIE, J . (Orally) [ 1 ] The accused, Jason Daniel MacKay, has been charged with committing an aggravated assault. [ 2 ] The assault is alleged to have occurred during the afternoon of April 2, 2002 in the parking lot of a Tim Horton’s restaurant in Sussex, N.B. The accused was arrested during the early evening of April 2, 2002 by Constable Philip Grier, a member of the Sussex Detachment of the RCMP.

At the time of his arrest, Constable Grier gave the accused a cautioned statement which was read from the standard printed card and consists of three parts, a caution, a right to legal counsel statement and a secondary caution. [ 3 ] After he was arrested and cautioned the accused went with Constable Grier to the office of the RCMP’s Sussex detachment and then contacted a friend who gave him the name of a lawyer who the accused called to seek advise. The accused did not give any statement to police officers.

Constable Grier testified that he asked the accused during the evening of April 2, 2002 if he wanted to make a statement and he replied, “No.” [ 4 ] On April 3, 2002 the accused appeared in Provincial Court and was released on a Form 12. [ 5 ] On April 5, 2002, three days after the alleged assault occurred and two days after he had been released on a Form 12, during the mid- morning, the accused saw Constable Kevin Head in the parking lot of the Sussex Elementary School. Constable Head was in uniform and got out of his marked police car when the accused approached him from his personal vehicle.

Constable Head was on his way into the school to give a talk to students. [ 6 ] The accused stopped on his own and Constable Head took it as a “casual encounter” and that the accused wanted to talk. The accused initiated the conversation. [ 7 ] The conversation took place with Constable Head standing outside the accused’s truck.

The conversation lasted between five and ten minutes. [ 8 ] It should be noted that Constable Head was not part of the investigation team assigned to the case involving the accused. [ 9 ] During the conversation between the accused and Constable Head in the school parking lot, Constable Head says the accused referred to the incident which had allegedly occurred on April 2 and said, “he hadn’t intended to hurt him that he just wanted to scare him” , and further that the accused had to look over his shoulder to see if he had hit him. [ 10 ] Constable Head says he then told the accused, “That doesn’t justify leaving the scene.” [ 11 ] Constable Head says he had no intention of talking to the accused.

He was on his way into the school to give a talk to students when the accused approached him and started to talk and made a declaration to him. Constable Head says his encounter with the accused was “strictly casual”. He made no notes of the conversation nor was it recorded. [ 12 ] When asked if he knew the accused had been charged, Constable Head responded, “I knew he was under investigation.” He added

that he did not know the accused had been chartered. [13] The accused says his conversation with Constable Head was just a “casual conversation”. He doesn’t recall saying that he justmeant to scare the person alleged to have been assaulted. [14] The assault is alleged to have taken place when a motorcycle hit an individual in the Tim Horton’s parking lot on April 2, 2002. [15] The accused admits that he, not Constable Head, was the one who brought up the April 2 incident during their conversation in theschool parking lot. He concedes that he volunteered everything he said to Constable Head.

There were no threats made or favoursoffered by Constable Head. [16] The accused also admits that he was fully aware of his rights at the time he made the statement or declaration to Constable Head. [17] In R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64 (S.C.C.), Justice McLauchlin writes: If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of theCharter.

Police persuasion short of denying the suspect the right to choose or depriving him of an operating mind, does not breach theright to silence. [18] And further: The common law rules relating to the right to silence suggest that the essence of the right is the notion that the person whose freedom isplaced in question by the judicial process must be given the choice of whether to speak to the authorities or not. [19] And further: The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is hisright to silence.

The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal ofthe state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak tothe police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(

b) confirm the right to silencein s. 7 and shed light on its nature. The guarantee of the right to consult counsel confirms that the essence of the right is the accused’s freedom to choose whether to make astatement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimatemeans of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choiceabout whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel.

This suggests that the drafters of the Charter viewed the ambit of the right to silence embodied in s. 7 as extending beyond the narrowformulation of the confessions rule, comprehending not only the negative right to be free of coercion induced by threats, promises orviolence, but a positive right to make a free choice as to whether to remain silent or speak to the authorities.

I should not be taken as suggesting that the right to make an informed choice whether to speak to the authorities or to remain silentnecessitates a particular state of knowledge on the suspect’s part over and above the basic requirement that he possess an operatingmind. The Charter does not place on the authorities and the courts the impossible task of subjectively gauging whether the suspectappreciates the situation and the alternatives. Rather, it seeks to ensure that the suspect is in a position to make an informed choice bygiving him the right to counsel.

The guarantee of the right to counsel in the Charter suggests that the suspect must have the right tochoose whether to speak to the police or not, but it equally suggests that the test for whether that choice has been violated is essentiallyobjective. Was the suspect accorded his or her right to consult counsel?

By extension, was there other police conduct which effectivelydeprived the suspect of the right to choose to remain silent, thus negating the purpose of the right to counsel? [20] Justice McLauchlin goes on to write in Hebert: The second Charter right relevant to the ambit of the right to silence conferred by s. 7 is the privilege against self-incrimination. This

right has been enshrined in s. 11(

c) of the Charter, which provides that no one can be required to give evidence against himself, andechoed in s. 13 of the Charter, which prevents evidence given by a witness being used against the witness in a subsequent proceeding. Ihave earlier suggested that these rights may be diminished to the extent that a person may be compelled to make statements at the pre-trial stage. It follows that if the Charter guarantees against self-incrimination at trial are to be given their full effect, an effective right ofchoice as to whether to make a statement must exist at the pre-trial stage.

I conclude that the consideration of other rights under the Charter suggests that the right to silence of a detained person under s. 7 of theCharter must be broad enough to accord to the detained person a free choice on the matter of whether to speak to the authorities or toremain silent. The essence of the right to silence is that the suspect be given a choice; the right is quite simply the freedom to choose – the freedom tospeak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other.

This right of choicecomprehends the notion that the suspect has been accorded the right to consult counsel and thus to be informed of the alternatives andtheir consequences, and that the actions of the authorities have not unfairly frustrated his or her decision on the question of whether tomake a statement to the authorities. [21] From the head note of R v. Hebert: However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether ornot to speak to the police.

If the detainee speaks, it is by his own choice and he must be taken to have accepted the risk that the recipientmay inform the police. Moreover, even where a violation of the detainee’s rights is established, the evidence may, where appropriate, beadmitted if the court is satisfied that despite the violation of the right to silence to admit the evidence would not bring the administrationof justice into disrepute. [22] I am satisfied in this case there has been no contravention of the right to retain and instruct counsel under

Section 10(

b) of theCharter. [23] The accused was arrested and detained and given his Charter rights on April 2, 2002. He was released on a Form 12 on April 3,2002. In my opinion, there was no obligation to re-Charter the accused on April 5, 2002 by Constable Head. The accused made aninformed and free choice. [24] In R v. Logan (ON CA), [1988] O.J. No. 2107 [affirmed by the Supreme Court of Canada at (1990) 58 C.C.C.(3d)] 391, the Ontario Court of Appeal concluded that the rights of the accused in that case under ss. 10(

b) and 7 of the Charter were notinfringed. [25] The Court concluded that the accused in that case took the initiative and seemed “most anxious” to tell the undercover officers ofhis involvement in the offenses. As a result, there was no contravention of the principles of fundamental justice. [26] The Court stated in Logan: The clear implication in the judgment of Lamer J. in Manninen is that s. 10(

b) confers the right, upon arrest or detention, to retain,instruct and be instructed by counsel before any statements of the accused are elicited. The words “upon arrest or detention” indicate apoint in time, not a continuum. They do not deal with a continuing right to be reinstructed before every occasion on which the policeobtain a statement from the accused. It is true that “retain” has a connotation of continuity (The Shorter Oxford English Dictionary(1973), p. 1813), but this is with respect to the engagement of services, i.e., the availability and subsequent resort to them when onewants to do so.

It does not express a prerequisite to every subsequent elicitation of information. [27] I am satisfied the statement the accused made to Constable Head in a school parking lot on April 5, 2002 was made freely andvoluntarily and that the accused had the requisite operating mind at the time he made the statement about the April 2, 2002 incident. [28] There has been no violation of the accused’s rights under the Canadian Charter of Rights and Freedoms. [29] The admission of the accused’s statement to Constable Head will not bring the administration of justice into disrepute.

[30] The accused had been previously advised of his Charter rights. He had previously consulted with a lawyer. [31] The conversation did not take place in a police station or an interrogation room or a jail cell or a police car, but rather in an openschool parking lot where the accused approached Constable Head and started a conversation. The accused confirms that he was awareof his rights at the time he struck up the conversation with Constable Head. The accused pursued Constable Head.

The accused was notdetained or arrested by Constable Head. [32] The accused chose freely and voluntarily to speak to a uniformed police officer who was not actively eliciting information. I amsatisfied that the accused’s fundamental right to silence was not infringed. See R v. VanHaarlem (BC CA), [1991]B.C.J. No. 2020 (B.C.C.A.). [33] Counsel for the accused argues that there is a potential for prejudice to the accused if the statement he made to Constable Headon April 5 is allowed to be admitted into evidence. He relies upon the Supreme Court of Canada decision in R v.

Wray (SCC), [1970] 4 C.C.C. 1, where Martland, J. writes at pp. 17: It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative forcein relation to the main issue before the Court is trifling, which can be said to operate unfairly. [34] In his text, Admissibility of Statements, Ninth Edition, Canada Law Book, the author, Justice René Marin writes at ¶. 7.170: However, the Supreme Court of Canada in R v.

Hebert (1990), (SCC), 57 C.C.C. (3d) 1, rejected the strict applicationof the judge’s confessions rule and stated that Wray is not acceptable in a post-Charter climate. [35] Counsel for the accused also relies upon Noor Mohammed v. The King (UK JCPC), [1949] A.C. 182.

In thatdecision the Judicial Committee of the Privy Council held at p. 192: It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce issufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice thatit should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judgewill be right to exclude it. To say this is not to confuse weight with admissibility.

The distinction is plain, but cases must occur in whichit would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground forholding it technically admissible. The decision must then be left to the discretion and sense of fairness of the judge. [36] I am satisfied that there is probative value under

Section 265.1(

b) of the Criminal Code of Canada in the statement made by theaccused to Constable Head and further that the statement’s probative force in relation to the main issue before this Court is not trifling. [37] In the result, the statements made by the accused to Constable Head are admissible and may be admitted into evidence at the trialof the accused. ________________________________ Peter S.Glennie A Judge of the Court of Queen’s Bench of New Brunswick