R. v. Paulin, 2013 NBCA 15

COURT OF APPEAL OF NEW BRUNSWICK 164-11-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - ROGER PAULIN RESPONDENT ROGER PAULIN INTIMÉ R. v. Paulin, 2013 NBCA 15 R. c.

Paulin, 2013 NBCA 15 CORAM : The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Provincial Court: November 2, 2011 Appel d’une décision de la Cour provinciale : Le 2 novembre 2011 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : Inédite Procédures préliminaires ou accessoires : S.O.

Appeal heard: September 26, 2012 Appel entendu : Le 26 septembre 2012 Judgment rendered: February 14, 2013 Jugement rendu : Le 14 février 2013 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell

Concurred in by: The Honourable Justice Richard The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Quigg Counsel at hearing: For the appellant: Monica McQueen and Christian Girouard For the respondent: Martine Lanteigne Avocats à l’audience : Pour l’appelante : Monica McQueen et Christian Girouard Pour l’intimé : Martine Lanteigne THE COURT The appeal is allowed, the verdict of acquittal is set aside, and a new trial is ordered. English version of the decision of the Court delivered by BELL, J.A. I.

Introduction [ 1 ] On November 2, 2011, Roger Paulin was acquitted of possession of marihuana for the purpose of trafficking ( Controlled Drugs and Substances Act , S.C. 1996, c. 19). One of the issues raised at trial concerned the admissibility of a statement provided by the respondent. Following an analysis under ss. 10(

a) and (

b) and s. 24(2) of the Canadian Charter of Rights and Freedoms , the trial judge excluded the statement. The Attorney General disputes the trial judge ’ s finding that ss. 10 (

a) and (

b) apply in the circumstances. Alternatively, the Attorney General contends the admission of the statement would not bring the administration of justice into disrepute. I agree with the first contention: there was no violation of ss. 10 (

a) and (b). This makes it unnecessary for me to consider the alternative ground. For the reasons set out below, I would therefore allow the appeal and order a new trial. II. Applicable Standard of Review [ 2 ] Section 676(1) (

a) of the Criminal Code provides that the Attorney General may appeal against a verdict of acquittal on any ground of appeal that involves a question of law alone. For the purposes of this provision , the application of the law to the facts constitutes a question of law: R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 , at para. 43 ; R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527 , at para. 20 ; Black v. R . , 2010 NBCA 36 , 360 N.B.R. (2d) 132 , at para. 18 , and the decisions cited therein: R. v. Tran , 2010 ABCA 211 , [2010] A.J. No. 736 (QL) , at para. 23 ; R. v. J.M.H . , 2011 SCC 45 , [2011] S.C.J.

No. 45 (QL) , at para. 29 . [ 3 ] In R. v. Graveline , 2006 SCC 16 , [2006] 1 S.C.R. 609 , the Court defined the standard of review applicable to an appeal against a verdict of acquittal. Fish J., speaking for the majority stated: […] It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

This burden on the Crown, unchanged for more than half a century (see Cullen v. The King, (SCC), [1949] S.C.R. 658),was explained this way by Sopinka J., for the majority, in R. v. Morin, (SCC), [1988] 2 S.C.R. 345: I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. Anaccused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was suchthat there is a reasonable degree of certainty that the outcome may well have been affected by it.

Any more stringent test would requirean appellate court to predict with certainty what happened in the jury room. That it cannot do. [p. 374] Speaking more recently for a unanimous court in R. v. Sutton, [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated: The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen, (SCC), [1977] 2S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors notoccurred. In R. v.

Morin, (SCC), [1988] 2 S.C.R. 345, this Court emphasized that “the onus is a heavy one and that theCrown must satisfy the court with a reasonable degree of certainty” (p. 374). [para. 2] [paras. 14 to 16] [4] In short, to be successful in this case, the Attorney General must not only show that the trialjudge has committed an error of law, she must also show that it is reasonable to believe that the error had a material bearing on theacquittal. III.

Facts [5] At approximately 12:56 p.m. on April 27, 2011, Constable Davidson, accompanied byConstable Chaussé and Corporal Beaupré, executed a search warrant at the residence of the respondent, Roger Paulin, at Coteau Road,Lamèque, New Brunswick. [6] At the time he executed the warrant, Constable Davidson explained the search warrant to therespondent and read the standard warning as to his right to remain silent and his right to counsel. Mr. Paulin stated that he understood hisrights. However, he directed the police officers’ attention to a leather jacket in his bedroom.

Corporal Beaupré searched the coat’s pocketand discovered several small “Ziploc” bags containing a green substance that appeared to be marihuana. The police seized the greensubstance and approximately 300 bottles of beer which were also found in the residence. [7] At 1:01 p.m., Constable Davidson arrested Mr. Paulin for possession of marihuana for thepurpose of trafficking. The constable again informed him of his rights, including the right to counsel. When asked if he wanted to speakto a lawyer, Mr. Paulin replied [TRANSLATION] “not now”.

Constable Davidson then informed him that if he changed his mind, heneed only tell a police officer and he would then be able to speak to a lawyer. Constable Kalbarczyk then took Mr. Paulin to the RCMPdetachment in Lamèque. [8] Upon arrival at the detachment in Lamèque, Constable Davidson again informed Mr. Paulin ofhis right to silence and his right to counsel. Concerning the right to counsel, he replied [TRANSLATION] “not right now” and “I wantto speak with someone later”.

Constable Davidson explained that if he wanted to speak to a lawyer, he only need ask and the recordingwould be stopped to allow him to do so. Mr. Paulin then made an inculpatory statement. [9] At the voir dire, Constable Davidson admitted that while interrogating Mr. Paulin, he did notlimit his questions to possession of marihuana for the purpose of trafficking. He acknowledged that he questioned Mr. Paulin about thelarge quantity of liquor found when the residence was searched, but that this only took place after the questioning concerning themarihuana.

Constable Davidson indicated that for him, the alcohol was secondary to the “main” scope of his investigation, i.e.,possession of marihuana for the purpose of trafficking. Constable Davidson admitted that he did not inform Mr. Paulin he was alsoconducting an investigation concerning the alcohol found during the search. It should be noted that the search warrant only addressedpossession of marihuana and methamphetamine for the purpose of trafficking. It made no reference to alcohol. (Emphasis is mine.)

[ 10 ] At trial Mr. Paulin contended his statement was obtained in breach of ss. 10(

a) and (

b) of the Charter , because he did not know, at the time it was provided, that he was being investigated for the alcohol found in his residence. [ 11 ] Although no notice had been given of the respondent’s intention to allege a Charter breach, the trial judge nevertheless agreed to decide the issue. She also indicated that a potential Charter breach would be one of the factors she would take into account in determining whether the statement was given freely and voluntarily. [ 12 ] Mr.

Paulin’s trial proceeded only in relation to the charge of possession of marihuana for the purpose of trafficking; the ticket charging him with a violation of s. 132 of the Liquor Control Act , R.S.N.B. 1973, c. L-10having been withdrawn by the Crown at the commencement of the trial. Mr. Paulin did not oppose the motion to withdraw and was fully aware that the trial would deal exclusively with the charge for possession of marihuana for the purpose of trafficking. The trial judge excluded the statement because of the failure by the police to inform Mr.

Paulin they were also investigating the alcohol related offence. She stated: [TRANSLATION] THE COURT: Good. So, as I indicated, when an accused is informed of his right to counsel, and when he has to make a decision whether or not he wants to speak to a lawyer, at that point, before giving a statement, he must know exactly what he is faced with, or what he is charged with or at least what jeopardy he might face, or what the police are investigating. […] As I indicated, there was a violation. Now the caselaw since Grant considers a violation of the right to counsel to be a serious violation, and as Mr.

Robichaud indicated here, the appropriate remedy in the majority of cases is to set aside or not to admit in evidence the statement obtained as a result of this violation, given that the right to counsel is a fundamental right recognized under the Charter . Therefore, in the circumstances, I see no reason not to follow the caselaw in Grant . Accordingly, the statement shall not be admitted in evidence. I believe this concludes the voir dire . [...] The accused shall be acquitted. That’s all. IV.

Relevant provisions of the Canadian Charter of Rights and Freedoms [ 13 ] The relevant Charter provisions are set out below:

10. Everyone has the right on arrest ordetention (

a) to be informed promptly of the reasonstherefor; (

b) to retain and instruct counselwithout delay and to be informed of thatright; and […] 24.

(2) Where, in proceedings undersubsection (1), a court concludes thatevidence was obtained in a manner thatinfringed or denied any rights or freedomsguaranteed by this Charter, the evidence shallbe excluded if it is established that, havingregard to all the circumstances, the admissionof it in the proceedings would bring theadministration of justice into disrepute. 10. Chacun a le droit, en cas d’arrestation oude détention :

a) d’être informé dans les plus brefs délaisdes motifs de son arrestation ou de sadétention;

b) d’avoir recours sans délai à l’assistanced’un avocat et d’être informé de ce droit; […] 24(2) Lorsque, dans une instance visée auparagraphe (1), le tribunal a conclu que deséléments de preuve ont été obtenus dans desconditions qui portent atteinte aux droits oulibertés garantis par la présente charte, ceséléments de preuve sont écartés s’il est établi,eu égard aux circonstances, que leurutilisation est susceptible de déconsidérerl’administration de la justice. V. Issues [14] The Attorney General raises five grounds of appeal. However, I am of the view the first twogrounds are determinative.

They contend the trial judge erred: • In finding that Mr. Paulin’s right to be informed promptly of the reasons for his arrest was violated; and • In finding that Mr. Paulin’s right to retain and instruct counsel without delay and to be informed of that right was violated. VI. Analysis A. The right to be informed of the reasons for his arrest and the right to retain and instruct counsel: ss. 10(

a) and (

b) of theCharter [15] Since the rights under ss. 10(

a) and 10(

b) of the Charter are linked, I will analyze the twogrounds of appeal simultaneously. As Wilson J. indicated in R. v. Black, (SCC), [1989] 2 S.C.R. 138, [1989] S.C.J. No.81 (QL): […] [Section] 10(

b) should not be read in isolation. Its ambit must be considered in light of s. 10(a).

Section 10(

a) requires the police toadvise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s. 10(b)arise because he or she has been arrested or detained for a particular reason. An individual can only exercise his s. 10(

b) right in ameaningful way if he knows the extent of his jeopardy. [para. 24]

[16] Iacobucci J. applied this principle in R. v. Borden, (SCC), [1994] 3 S.C.R. 145,[1994] S.C.J. No. 82 (QL): […] One of the primary purposes of requiring the police to inform a person of the reasons for his or her detention is so that person maymake an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of theextent of his or her jeopardy [...]. [para. 44] [17] Mr.

Paulin contends that because he was not informed prior to providing his statement that aninvestigation would be conducted in relation to the alcohol, the decision to waive his right to counsel was not fully informed. TheAttorney General submits Mr. Paulin understood the extent of his jeopardy and, accordingly, his waiver was valid. [18] In R. v. Meunier, [1997] J.Q. No. 3477 (QL), the respondent contested the validity of his waiverof his right under s. 10(

b) because the police officers had failed to tell him that the victim of the shooting had died. Clearly, this factsubstantially changed the scope of the investigation. In determining the extent of the information the respondent should have been given,the Quebec Court of Appeal reproduced the following passages from R. v. Smith, (SCC), [1991] 1 S.C.R. 714, [1991]S.C.J.

No. 24 (QL): [TRANSLATION] In Smith, McLachlin J., who delivered the Court’s decision, wrote at page 729: To my mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed bythe evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case.

What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as towhether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of theaccused, rather than on technical detail of what the accused may or may not have been told. Applying these principles, McLachlin J. concluded that Smith had sufficient awareness of the jeopardy in which he stood and that hiswaiver of the right to counsel should not be considered invalid [...]. At p. 728 of Smith, supra, after referring to R. v.

Greffe, (SCC), [1990] 1 S.C.R. 755, R. v. Black, (SCC), [1989] 2 S.C.R. 138, Clarkson v. The Queen, supra, McLachlin J. wrote: These cases establish that, regardless of whether the focus is on the sufficiency of the initial s. 10(

b) advice or on the waiver, whatis required is that the accused understand generally the jeopardy in which he or she finds himself and appreciate the consequences ofdeciding for or against counsel. They rest on the common sense proposition that sometimes a lawyer is more important than at othertimes. [Emphasis is mine.] [paras. 31, 32 and 35] [19] The criteria in Smith define the extent of the information that must be given pursuant to s. 10(a)of the Charter. The detained person must know “generally” the jeopardy being faced and be able to appreciate the consequences ofdeciding for or against counsel.

The suspect need not know the exact charges or “exactly what he is faced with” as suggested by the trialjudge.

In this case, it is evident the respondent knew the seriousness of the charge against him (possession of marihuana for the purposeof trafficking): the warrant was read to him when the search began; he witnessed the seizure of the bags containing a green substance(later identified as marihuana); he was arrested and informed of the reason therefor; he was taken to the police station; he was placed inan interrogation room; and he would be presumed to know that the potential sentence, should he be found guilty, could includeincarceration for an extended period of time. [20] Mr.

Paulin contends that Constable Davidson’s failure to give yet another warning regarding theright to counsel when the investigation shifted from “marihuana” to “alcohol” breached his rights under s. 10(b). He submits this breachinvalidates the initial waiver of his right to counsel, which he gave when the investigation dealt exclusively with marihuana. [21] In R. v. Evans, (SCC), [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31 (QL), thepolice had initially arrested the accused on a drug related charge.

However, once he had waived his right to counsel, the nature of theinvestigation changed and it became an investigation for murder. The police did not formally inform the accused that he was facing a

new charge and did not reiterate his rights. As to the police duty, McLachlin J. (as she then was) stated: A second violation of the appellant’s s. 10(

b) right occurred when the police failed to reiterate the appellant’s right to counsel after the nature of their investigation changed and the appellant became a suspect in the two killings. This Court’s judgment in R. v. Black , supra , per Wilson J., makes it clear that there is a duty on the police to advise the accused of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the first warning .

This is because the accused’s decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge he or she faces. The new circumstances give rise to a new and different situation, one requiring reconsideration of an initial waiver of the right to counsel. [...] I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence .

I do, however, affirm that in order to comply with the first of the three duties set out above, the police must restate the accused’s right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning . [Emphasis is mine.] [paras. 47 and 48] [ 22 ] In R. v.

Sinclair , 2010 SCC 35 , [2010] 2 S.C.R. 310 , McLachlin C.J. and Charron J., for the majority, acknowledged that a change in jeopardy may trigger a renewed requirement upon the police to advise a suspect of his right to counsel. They stated: The detainee is advised upon detention of the reasons for the detention: s. 10( a ). The s. 10(

b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. [Emphasis is mine.] [para. 51] [ 23 ] Evans and Sinclair make it clear that not every change in jeopardy will require a further opportunity to consult with counsel. The change must be fundamental.

As stated in Sinclair , the investigation must take “a new and more serious turn”. [ 24 ] An offence under the Liquor Control Act is without doubt different from the offence of possession of marihuana for the purpose of trafficking. It remains to determine, before deciding whether a second caution was necessary, whether such an offence is more serious. It is obvious that a regulatory offence punishable under s. 56(5) of the Provincial Offences Procedure Act , S.N.B. 1987, c.

P-22.1, as a category E offence by a fine (up to a maximum of $5,200.00) cannot be considered a “more serious” offence than one of possession of marihuana for the purpose of trafficking. For an amount of marihuana not exceeding three kilograms, s. 5(4) of the Controlled Drugs and Substances Act carries a punishment of imprisonment for a term of up to five years less a day and a criminal record, which, of course, precludes full participation in Canadian society. The respondent was aware of the seriousness of the offence with which he was charged and for which he was given the initial police caution.

He was also aware that he was never suspected of a different and more serious offence. [ 25 ] As McLachlin J. (as she then was) noted in R. v. Smith , “[m] any might choose to do without counsel on a traffic charge. Many fewer would make the same decision if faced with murder” (para. 26). This reasoning is logical and applies inversely to this case: many choose to consult legal counsel for a charge of possession of marihuana for the purpose of trafficking; few would make the same decision for a regulatory offence.

In other words, it would be surprising that a person who waives his or her right to counsel for an offence of possession of marihuana for the purpose of trafficking would choose to exercise his or her right to counsel for a regulatory offence. [ 26 ] In short, I would conclude the investigation did not take a new and more serious turn as a result of the questions concerning the alcohol. Constable Davidson did not have a duty to restate the respondent’s right to counsel. The initial caution was sufficient. B.

The voluntariness of the statement and s. 24(2) of the Charter [ 27 ] Since I am of the view there was no violation of s. 10(

a) or (

b) of the Charter , there is no need

to address whether these potential violations could have affected the voluntariness of the statement, nor is there any need to conduct an analysis under s. 24(2) of the Charter . VII. Conclusion [ 28 ] In my view, the trial judge erred in law when she concluded the police had a positive duty to repeat the police caution when the investigation took a new and less serious turn. The Attorney General has discharged her burden of demonstrating the trial judge committed an error of law, and that this error had a material bearing on the acquittal.

For these reasons, I would allow the appeal, quash the acquittal and order a new trial. ______________________________ B. Richard Bell, j.c.a. _______________________________ J.C. Marc Richard, j.c.a. _______________________________ Kathleen A. Quigg, j.c.a.