R. v. Folker, 2016 NLCA 1

Date: 2016 0125 Docket: 14/ 02 Citation: R. v. Folker , 2016 NLCA 1 corr IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DAVID FOLKER APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Corrected decision: The text of the original judgment was corrected on February 23, 2016. A description of the correction is appended. Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201201G0850, 2013 NLTD(G) 176 Appeal Heard: September 24, 2015 Judgment Rendered: January 25, 2016 Reasons for Judgment by Hoegg J.A.

Concurred in by Welsh J.A. Dissenting in Part, Concurring in the Result by White J.A. Counsel for the Appellant: Jason A. Edwards Counsel for the Respondent: Frances Knickle Q.C. Hoegg J.A.: INTRODUCTION

[ 1 ] On November 8, 2013, a Jury convicted David Folker of the second degree murder of Ann Marie Shirran, his common-law wife and the mother of their infant son. Mr. Folker appeals his conviction on the grounds that the Judge erred in admitting into evidence three of Mr. Folker’s statements and an unsent letter he had written, and also that the Judge erred in failing to declare a mistrial on Mr. Folker’s request. BACKGROUND [ 2 ] On July 19, 2010, Mr. Folker reported Ms. Shirran missing.

He filed a handwritten report with the Royal Newfoundland Constabulary (the RNC), saying that she had left their home the previous evening and had not returned. On September 6, 2010, Mr. Folker was arrested and charged with Ms. Shirran’s murder. His trial commenced on October 13, 2013. [ 3 ] Between July 19 and September 6, 2010, Mr. Folker gave several statements to the police. The first three of those statements, given on July 24, 27 and 28, 2010, were uncautioned and given by Mr. Folker without his having been advised of his Charter rights. The Judge admitted these statements into evidence, ruling that Mr.

Folker was not detained when he gave them and that they had been given voluntarily. [ 4 ] In the course of the investigation and before Mr. Folker’s arrest, his motor vehicle was searched by the police. They found an unsent handwritten letter authored by Mr. Folker and addressed to his friend Tammy (the Tammy letter). At trial, Mr. Folker argued that a particular line in the letter was inflammatory and prejudicial to him, and that it ought to be excised. The Judge admitted the entire letter into evidence, ruling that the line Mr.

Folker sought to have excised was not particularly prejudicial to him, and that the letter was relevant evidence going to Mr. Folker’s state of mind and to his credibility. [ 5 ] Between July 19, 2010 and the first day of trial, Mr. Folker maintained that he knew nothing about and was in no way involved in Ms. Shirran’s disappearance. However, when Mr. Folker’s counsel gave an opening statement to the Jury on the first day of trial, he told the Jury that Mr. Folker and Ms. Shirran had had a physical altercation on the evening of July 18, 2010 which had resulted in Ms. Shirran’s death.

Defence Counsel also stated that Mr. Folker had disposed of Ms. Shirran’s body as well as some of her personal effects and other items, and that he had lied to the police in various statements he had given them pertaining to the investigation. As a result of this unexpected disclosure, the Judge made comments to the Jury which Mr. Folker maintained supported the declaration of a mistrial. Mr. Folker’s motion in this regard was denied by the Judge. ANALYSIS Admissibility of the July 24, 27 and 28, 2010 Statements [ 6 ] Mr.

Folker argues that he was detained and ought to have been given his Charter rights before he gave statements to the police on July 24, 27 and 28, 2010. Because he was not given his rights, he maintains the Judge should have excluded the statements from the evidence. Mr. Folker also argues that the statements were obtained through police trickery, making them involuntary and therefore inadmissible. The Statements July 24, 2010 [ 7 ] Mr.

Folker had no contact with the police between July 19, 2010, when he filed his missing person report, and July 23, 2010, when he was contacted by an RNC officer and asked for an interview. He agreed to the request and drove himself to RNC Headquarters the following morning. Upon arrival, he was escorted to an interview room where he was asked to turn off his cell phone and told the interview would be video recorded. Two officers, one male and one female, were present. The male officer did the questioning. The interview lasted one hour and thirty-five minutes. It focussed on the events of July 18 from Mr.

Folker’s perspective, the personal circumstances of Ms. Shirran and Mr. Folker, and information Mr. Folker was able to provide about Ms. Shirran’s habits, friends, and use of their computer. [ 8 ] During the interview, Mr. Folker said that in an effort to locate Ms. Shirran, he telephoned her friends and family the day following her disappearance. Police asked Mr. Folker if he had tried to call Ms. Shirran on her cell phone since she had been missing, and he said that he had not. The officer remarked that he found that unusual, given that Ms. Shirran had been missing for several days.

At another point during the interview, Ms. Shirran’s use of the home computer was discussed. The police asked Mr. Folker if he would consent, on a voluntary basis, for them to search it. Mr. Folker agreed and the police left the room to get a consent form for the computer search, leaving Mr. Folker alone. It appears that this was when the officers made arrangements for Mr. Folker to be put under surveillance when he left police headquarters. When the police returned, the consent form was reviewed with Mr. Folker.

It included advice that he had the rights to contact a lawyer before signing and to refuse consent, and an explanation that anything obtained in the search could be retained as evidence and that the search could result in charges being laid against him. Mr. Folker stated he did not wish to contact a lawyer and that he understood the potential repercussions of the search. [ 9 ] During the interview, the police advised Mr. Folker that they would want to verify the truth of what he told them.

In this regard, the prospects of cell and home phone records searches, other searches and a future polygraph test were discussed. Mr. Folker stated he would agree to the searches and the polygraph. At the end of the interview, he stated his desire to cooperate with the police and that he “wanted her found.” July 27, 2010 [ 10 ] On July 27, 2010, Mr. Folker went again to RNC headquarters, where he and members of Ms. Shirran’s family met with police for an update on the progress of the investigation. After that meeting, police met with Mr.

Folker alone for the purpose of discussing (again) whether he would consent to searches of his cell phone records, his and Ms. Shirran’s house phone and their vehicle. Mr. Folker again stated he would agree to these searches. The police told Mr. Folker they would prepare the consent forms for the searches and they would meet him again the next day so he could sign them. The possibility of a polygraph examination was again discussed. The

police told Mr. Folker that they were interested in doing a polygraph because they wanted to know if Mr. Folker was responsible for Ms. Shirran’s disappearance. Mr. Folker restated that he would submit to a polygraph test. The police also requested Mr. Folker to comply with a viewing of his person in order to see if there were any marks on his body. Mr. Folker agreed to this request. This meeting, which was audio-taped and lasted ten minutes, is the July 27 statement. July 28, 2010 [ 11 ] The July 28 statement is an audio tape of a meeting which took place in an unmarked police car outside of Mr.

Folker’s place of employment in Mt. Pearl. The meeting consisted of police reviewing and Mr. Folker executing consent forms for searches of Mr. Folker’s cell phone and his and Ms. Shirran’s home phone and computer. Each consent form was explained to Mr. Folker, and each form indicated that he had the right to consult with legal counsel about whether to consent, that he was giving his consent freely and voluntarily, and that he knew and understood that any evidence or information resulting from the searches could be used against him in court proceedings. Mr. Folker executed all of the consents.

The meeting lasted 12 minutes. The Judge’s Ruling on Admissibility of the Statements [ 12 ] The admissibility of the statements at trial was the subject of a pre-trial voir dire held in April 2013. The Judge rendered his decision on June 27, 2013, ruling that the statements were admissible because Mr. Folker had not been detained when he gave them, and that they had been given voluntarily. On detention, the Judge said: [43] The reasons why the court has determined that on July 24, 2010 Mr. Folker was not detained are as follows: Mr.

Folker was the complainant of his missing spouse who gave the police information about her disappearance; The police were in the very early stages of a missing person investigation. Family members had been interviewed on July 21 and July 23, 2010 and some information has passed between them and the police about a break-up. Mr. Folker, in his own complaint, admitted to arguing about a break-up. There were reports coming in of sights of Ms. Shirran in the Corner Brook area, which had not been followed-up on by July 24, 2010. Ms. Shirran had relatives and had lived in Corner Brook. Sgt.

Roche admitted that he asked about the use of surveillance on July 23, 2010 as a means of deciding if what Mr. Folker had told them was accurate. Sgt. Roche says the decision for surveillance was made after the first break in the interview on July 24, 2010. Sgt. Harvey, in her evidence, says although it was discussed on July 23, 2010, the decision was Sgt. Roche’s decision. Sgt. Harvey went to Corner Brook to follow up on sightings of Ms. Shirran on July 28, 2010 and spent two days in Corner Brook until July 30. The investigation was ongoing and Mr.

Folker, like the other family members, was being updated on progress even after the July 24 interview. The police had no evidence of a crime being committed on July 24, 2010. There were no reasonable and probable grounds to arrest anyone, let alone Mr. Folker, on July 24, 2010. Mr. Folker was asked to come to the detachment for follow-up.

He came in his own vehicle and he left after the interview in his own vehicle. [ 13 ] On voluntariness, the Judge found that “there were no threats, promises, or inducements made to him to obtain a statement” (paragraph 53) and that there were no “dirty tricks” on the part of the police (paragraph 54). The Judge described the July 24 interview as a “laid-back and non-confrontational” follow-up to Mr. Folker’s complaint that Ms. Shirran was missing (paragraph 55). Detention The Law [ 14 ] The law respecting detention within the meaning of

section 9 of the Charter was set out by the Supreme Court in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353. At paragraph 28, McLachlin C.J. and Charron J. said, “[A] person is detained where he or she submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.” The Court explained how the rights to remain silent and not to self-incriminate are protected by the entitlement to Charter rights on detention, saying that “the notion of choice underlies our conception of liberty and, as such, shapes our

interpretation of sections 9 and 10 of the Charter ”, and that “advice respecting s. 10(

b) serves an indispensable purpose by informing a detainee of his or her ability to choose whether to cooperate with the investigation by giving a statement”. [ 15 ] The Court said that detention can be physical or psychological and described psychological detention as arising in two ways: 1) “a subject is legally required to comply with a police demand” and 2) “a reasonable person in the subject’s position feels obligated to comply with a police restrictive or coercive demand even though there is no legal requirement to do so” (paragraph 30).

[ 16 ] The Court was careful to point out that not all encounters with police should be interpreted as psychological detention, and specifically stated that information gathering in a non-adversarial context lacks the essential character of a

section 9 detention (paragraph 36). [ 17 ] The Court also explained that an individual’s Charter rights are not engaged by cooperating with police questioning when police do not have specific grounds to connect that individual to the commission of a crime, even when it turns out that the individual being questioned is implicated in the crime: In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination.

This does not preclude the police from continuing to question the person in the pursuit of their investigation.

Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel. (Paragraphs 37-38.) [ 18 ] Nevertheless, the Court stated that an investigative encounter has the potential to turn into a detention which would engage the requirement to give a detainee his or her Charter rights.

Suspicion of a particular individual could trigger the requirement for Charter rights, but “focussed suspicion, in and of itself, does not turn [an] encounter into a detention. What matters is how the police, based on that suspicion, interacted with the subject” ( Grant at paragraph 41 ). In this regard, if the words and actions of the police are such that a reasonable person would conclude that he or she is not free to leave or decline to answer questions then the subject can be said to be detained. [ 19 ] The Court summarized psychological detention at paragraph 44: 1.

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors: (

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 20 ] In R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460 the Supreme Court considered whether questioning of a bystander to a crime gave rise to a detention of the bystander.

In deciding the matter, Chief Justice McLachlin and Justice Charron set out the framework for determining whether the circumstances of a case amount to detention: [28] … The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application.

However, the applicant’s contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence. [29] The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. … Analysis [ 21 ] Mr.

Folker’s argument that he was detained rests on two assertions: 1) he felt compelled to cooperate with police by answering questions during the July interviews, and 2) he was viewed as a suspect on July 24 and as such ought to have been given his rights.

He relies on the facts that the statements were videotaped and/or recorded and that a decision was made to put him under surveillance part way through the July 24th interview to support his contention that he was viewed as a suspect at that time. [ 22 ] Video and audio recording of police interviews has become increasingly common in recent years, as the Judge noted. Such electronic records provide an accurate account of what actually transpires during a police interview, thereby providing reliable information for police use in their investigation as well as reliable evidence for possible later use.

Electronic recordings of police interviews also protect other important interests. They serve as a strong deterrent to the use of improper police tactics and also help to protect police from spurious claims. (See R. v. Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3 at para. 46 .) [ 23 ] In this case, Mr. Folker was advised that the interview on July 24 was being videotaped and that the meetings of July 27 and 28

were being recorded. The statements he made in each of the July interviews were therefore made by him in the full knowledge that theywere being recorded. Moreover, Mr. Folker was advised several times throughout the interviews that the police wanted to make surethat what he was telling them was true. In these circumstances, I cannot see how the video and/or audio recording of his statementssupports his detention argument. [24] Mr.

Folker maintains that he acceded to the police request for an interview on July 24 because he felt he was not in a position torefuse, and that once at police headquarters on July 24, he felt he was not free to go. While Mr. Folker’s subjective feelings in thisregard are relevant, they do not determine that he was detained. The test set out in Grant is an objective one, requiring that a reasonableperson in the shoes of Mr. Folker would conclude that because of the police conduct he or she had no choice but to comply with thepolice questioning.

Accordingly, the circumstances of the interviews, the nature of the police conduct and Mr. Folker’s personalcircumstances must be considered (paragraph 44). [25] When police contacted Mr. Folker on July 23 for an interview, Ms. Shirran had been missing for five days. Her partner, Mr.Folker, who had filed a missing person report the day after she disappeared, was the last person known to have seen her alive. There hadbeen no prior police contact with Mr. Folker, and he agreed to speak with them and drove himself to police headquarters the nextmorning.

The purpose of the interview was to follow-up on the missing person report. In these circumstances, it cannot lie in Mr.Folker’s mouth to maintain he had no choice but to attend at RNC headquarters and answer police questions. [26] Mr. Folker asserts that because the police decided to put him under surveillance part way through the July 24 interview, he hadby then, or before then, become a suspect, and as such ought to have been given his rights. The question that arises is whether theinterview, once commenced, escalated into an interaction so based on suspicion that a reasonable person in Mr.

Folker’s position wouldhave believed he or she had no choice about whether to decline to answer the police questions. [27] The questioning during the July 24 interview focussed on the interaction between Mr. Folker and Ms. Shirran before she lefttheir residence on July 18, and information about their personal lives and Ms. Shirran’s habits and friends. The police had no body andno grounds to suspect that Ms. Shirran had been the victim of a crime. They also had no grounds to believe that Mr. Folker wasimplicated in her disappearance.

The questioning was normal and straightforward, not in any way accusatory or oppressive, and Mr.Folker did not have to be encouraged to answer any question. Rather, he was very forthcoming with information and entirelycooperative. The tenor of the interview was investigative, and Mr. Folker appeared anxious to help the police find Ms. Shirran. [28] On July 24, 27 and 28, 2010 and until much later that summer, Mr. Folker was treated as a bereaved family member and wasincluded with Ms. Shirran’s family members in police updates on the investigation. Police continued to investigate alleged sightings ofMs.

Shirran, and Mr. Folker continued to initiate contact with the police to volunteer information (in one case suggesting that anacquaintance of his ought to be investigated for possible involvement in Ms. Shirran’s disappearance) to assist them. Even if police had alurking suspicion that Mr. Folker was involved in Ms. Shirran’s disappearance when they interviewed him in July, they had nothingconcrete on which to base it, and certainly had no grounds for charging him or for a warrant to search his premises.

In any event, evenfocussed suspicion does not turn an interview into a detention, as was held in Grant. [29] Mr. Folker’s July statements are recordings of early police investigatory work in which Mr. Folker’s words can be fairlycharacterized to have been made in furtherance of his position that he did not know what happened to Ms. Shirran and that he wanted tohelp the police to find her. The police questioning of Mr. Folker, in these first of many interactions with him, was of a general nature,naturally touching on his relationship with Ms.

Shirran, possible reasons for her disappearance, and the efforts he made to contact her. Inmy view, the July 2010 interview was a far cry from “focussed interrogation amounting to detention”. There is nothing in the evidenceof the way the police interacted with him during the three July interviews that would cause a reasonable person in his shoes to believethat he or she had no choice but to answer the police questions. All in all, the circumstances giving rise to Mr. Folker’s interviews withpolice in July, the nature of the police conduct and Mr.

Folker’s personal circumstances do not support his contention that he wasdetained so as to engage his Charter rights. I conclude that the Judge did not err in determining that Mr. Folker was not detained whenhe gave those statements. Voluntariness [30] The law respecting the voluntariness of a statement given by an accused to a person in authority, known as the confessions rule,was restated post-Charter in Oickle.

In Oickle, Iacobucci J. identified four considerations for determining the voluntariness of anaccused’s statements to police: 1) threats and promises, 2) oppression, 3) operating mind and 4) police trickery. The police trickeryconsideration involves a distinct inquiry from the other three and the application of the “shock the community test,” first characterized byLamer J. (as he then was) in the pre-Charter case R. v. Rothman, (SCC), [1981] 1 S.C.R. 640 (page 697). [31] In this case, the Judge found no suggestion of any threats or promises made to Mr.

Folker, physical contact or restraint of Mr.Folker by the police, harsh language or raised voices on anyone’s part, or police accusations or other police behaviour which could beinterpreted as oppressive. There is also no suggestion that Mr. Folker was vulnerable or that he did not have an operating mind. Hisargument rests on the allegation that the police tricked him into talking with them by pretending they were following up on his missingperson report when they really viewed him as a suspect. [32] The record shows that the police were honest and frank with Mr.

Folker at all times, and that they told him several times thatthey wanted to check out the veracity of his story. Mr. Folker acknowledged their need to do so, and could not have been under anydifferent impression when he said what he said or when he consented to the searches of his person, his home, car, computer and cell orland phones. Moreover, although he was not given his Charter rights or the police caution, each of the written consents he signed for thedifferent searches gave notice of his right to decline to agree to the searches and to consult with counsel before he agreed or signed theconsent forms.

While I am not suggesting that this information is a substitute for Charter rights and the police caution, it does serve toalert Mr. Folker that he was free to decline interaction with the police. [33] I also note that Mr. Folker’s three statements are essentially exculpatory and certainly cannot be characterized as admissions. Although some parts of his statement may, in hindsight, not jibe with Mr. Folker’s testimony at trial and his admissions, there is no

content in them that could be construed as inculpatory. [ 34 ] Mr. Folker stated his desire to cooperate with the police so as to help them find Ms. Shirran. The only respect in which it could be said that the police were not 100 percent upfront with Mr. Folker is that they did not tell him he would be or was under surveillance. Telling him straight out that he was under surveillance would, of course, defeat the purpose of using this investigatory tool. In any event, the public actions of everyone, including Mr.

Folker, are always at risk of being witnessed. [ 35 ] All in all, the conduct of the police cannot be construed as trickery which caused Mr. Folker to answer their questions. In my view, nothing the police did in their encounter with Mr. Folker would “shock the community” as Lamer J. put it in Rothman . Accordingly, the Judge did not err in determining that Mr. Folker’s statements were voluntary. [ 36 ] In the result, Mr. Folker has not established that the Judge erred in admitting the July statements into evidence. Did the Judge err in Refusing to Declare a Mistrial?

Background [ 37 ] After the Judge had given his opening instructions to the Jury and Crown Counsel had made his opening statement, Defence Counsel made an opening statement to the Jury. In it, Defence Counsel stated that Mr. Folker admitted that he and Ms. Shirran had been having relationship difficulties and that there had been a physical altercation between them on July 18, 2010 which had resulted in her death. Defence Counsel stated that later that night, Mr. Folker drove to a wooded area near Cappahayden (some one and one-half hours’ drive south of St. John’

s) where he disposed of Ms. Shirran’s body, and that some time later that day or the next Mr. Folker disposed of some of Ms. Shirran’s personal effects and other items off Blackhead Road just outside of St. John’s. Defence Counsel also stated that Mr. Folker was admitting that he had lied to the police in various statements he had given to them pertaining to their investigation into Ms. Shirran’s disappearance. [ 38 ] After Defence Counsel concluded his opening statement, the Crown called its first two witnesses. The first witness’s testimony was brief.

After the second Crown witness testified in chief, the Jury was excused and the Judge and both counsel had a short discussion during which the Judge commented that the trial was unfolding differently than expected. Counsel and the Judge retired to the Judge’s chambers, where they agreed that Mr. Folker would be asked to confirm his admissions on the record, and then the matter would be adjourned until the following day. [ 39 ] When the trial resumed, Mr. Folker confirmed his admissions to the Judge on the record. The Jury was then called in and Mr. Folker confirmed his admissions to the Jury.

The Judge then made the following remarks: … Now, ladies and gentlemen, what this means is that there is a formal admission by Mr. Folker, and his counsel, of certain parts of the evidence in this case. That means that the Crown does not have to call evidence that is admitted. This will shorten this trial considerably, but at the end of the day, you still have to make a determination if Mr. Folker is guilty or not guilty of murder or any included offence that may arise as a result of the evidence. We do not know, at this particular point and time if there is going to be a defence put forward by Mr.

Folker or if there is going to be a reduced charge to a less offence, for instance, manslaughter. That could be a potential possibility. We do not have that evidence in front of us at this particular point and time. Until we have that evidence I can’t give you directions as to, you know, what is available. So, what will happen from here on in is that the Crown will now have to make a decision as to what evidence they need to call to complete their case, to prove that Mr. Folker is guilty beyond a reasonable doubt of second degree murder, because the burden is still on them. Nothing has changed.

This is forty years at this business, today, for me, this is a first. So, the Crown didn’t know this was coming and I didn’t know it was coming but it’s admissions, it’s valid. The defence have the right to take this position in the way they are proceeding with this case.

It certainly will save a lot of witnesses having to take the stand, so I am suspecting that once the Crown reassessed who they have to call now, in the next few days, there will be still a fair bit of evidence that will have to go before the Court and, obviously, the defence, from the position that they are taking, will, obviously be calling evidence. At this particular point I can just surmise that they will have to, but they don’t have to. If they decide not to that’s fine, we will deal with that at that point and time.

So, we are now going to break this afternoon, because this is an unusual situation, I must admit. We started with a witness and we finished the first witness and we are halfway through the second witness and Mr. Hurley has requested that he continue his cross-examination of this witness tomorrow morning and I have agreed that we could do that.

So, this will give the Crown the opportunity tonight to make some decisions to what witnesses they now need to call and what witnesses they do not need to call because up to this particular point, the Crown, obviously, felt that the 55 witnesses that they had to call were necessary to prove some of the elements that have now been admitted by the defence. So, it will shorten the trial up considerably, but at the end of the day, you, the Jury, will still have to make a decision on guilt or innocence of Mr. Folker on the charges that are before the Court.

So, nothing has really changed except the fact that we have had some facts that have been admitted and that’s where we are. So, I hope I have been clear with you and I hope I have cleared it up, probably, for the media as well, because, you know, we don’t usually get these types of situations. We get, sometimes, admissions of minor facts like the week or the day that the event took place or the town that it took place in, but we don’t get substantial admissions in relation to the actual charge. So, this is a little bit different. So, on that basis we’re going to break now, this afternoon.

We are going to start at 10 o’clock tomorrow morning and Mr. Hurley, you will be ready to start with your cross-examination of the witness that is on the stand and then the Crown will be in a position to know what other witnesses they need to call and I guess we will be all day Thursday and Friday for sure with witnesses and most of next week. There are still, I think, a fair number of witnesses that probably will have to be called, okay. It’s all new. Thank you very much. [ 40 ] When the trial resumed the following day, Mr.

Folker moved for a mistrial on the basis that the Judge’s indication of surprise and his comments about the rarity of substantial admissions being made in the circumstances suggested to the Jury that Mr. Folker’s admissions were underhanded and without merit, thereby prejudicing him in the eyes of the Jury. [ 41 ] The court adjourned for the Judge to consider the motion. When court resumed the following day, the Judge, in the absence of

the Jury, dismissed the motion, saying: Now, counsel, I’ve listened carefully to the Defence and the Crown’s submissions on this matter today, and I reviewed the case law thatyou provided me last night which I received yesterday, and I’ve again now reviewed the transcript of the October the 9th proceedings. Now, I’ve made my, made my decision in this matter, and I’m just [going to] outline the position. In this particular case I am not of the view that the statements made by me can – on October the 9th raise grounds for a mistrial.

Thecontext in which the statements were made clearly were being used to explain to lay jurors what was happening in front of them. Amistrial is only to be granted in the clearest of cases. This is not such a case. The comments when read in full context explain what washappening. The comments were not made to inflame any situation. The comments made by me were trying to tell lay jurors what willhappen next. If the Defence believes there could be potential prejudice, I’m willing to give a clear direction to the Jury Tuesday morning.

It would beinappropriate to refer to the comments made by me, because to use the words would only accentuate the situation. A general wording toignore any comments I made concerning admissions, the timing of admissions, has already been spoken to by me on October the 9th, butI am willing to again state this in front of the Jury. [42] Mr. Folker argues that the Judge erred in failing to declare a mistrial.

He maintains that the Judge’s comments, whileinadvertent, were inappropriate and suggested that the actions of the defence were “underhanded, deceitful and manipulative”, therebyprejudicing him in the eyes of the Jury. He argues that the Judge did not consider whether his comments created a risk of prejudiceagainst Mr.

Folker which could lead to a miscarriage of justice in making his ruling and that the Judge’s subsequent “brief statement didnot adequately address the issue.” Law [43] A Judge’s decision not to declare a mistrial is a discretionary one which must be based on proper legal principles and relevantconsiderations (R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857). The test is set out at paragraph 75: In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent amiscarriage of justice.

This determination will necessarily involve an examination of the surrounding circumstances. Injustice to theaccused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in acriminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of thepublic and bringing the guilty to justice. … Green C.J. of this Court restated the test in R. v.

Ryan (D.), 2012 NLCA 9, 318 Nfld. & P.E.I.R. 15 at paragraph 134: The test for determining whether a declaration of a mistrial is indicated is, therefore, whether: (

i) there is a real danger of prejudice to theaccused; or (ii) it is necessary to prevent a miscarriage of justice. In reality, the danger of prejudice to the accused is a subset of ensuringthat there is no miscarriage of justice. [44] Also relevant to whether a mistrial ought to be declared is whether a judge gives any curative instructions to a jury or takesother measures which may remediate an otherwise prejudicial situation (R. v.

Khan, 2001 SCC 86, [2001] 3 S.C.R. 823). [45] Whether impugned comments by a trial judge ought to result in a declaration of mistrial was also addressed by the BritishColumbia Court of Appeal in R. v. Ertmoed, 2006 BCCA 365, and by the Ontario Court of Appeal in R. v. Snow (2004), (ON CA), 73 O.R. (3d) 40 (C.A.). [46] In Ertmoed, the trial judge had described defence counsel’s conduct in the case as “mind-boggling” and “inconsistent” withrespect to positions taken on the admissibility of evidence, and implied that his handling of witnesses was substandard.

On appeal, thecourt was not persuaded that the trial judge’s comments and interventions, viewed in the context of his otherwise fair and appropriateremarks to the jury, caused prejudice to the accused such that the fairness of his trial was affected. [47] In Snow, the accused’s motion that the trial judge’s inappropriate and sarcastic remarks to counsel justified a mistrial wasdismissed by the trial judge.

The appellate court upheld the ruling, saying that while the trial judge may have made sarcastic anddemeaning remarks about defence counsel in front of the jury, the trial judge remediated the situation by giving strong mid-trial and finalinstructions to the jury not to be influenced by his strained and difficult relationship with counsel, and that their duty as jurors was to putpersonalities aside and decide the case on the basis of the evidence.

The court stated the trial judge’s curative instructions were acomplete answer to the appellant’s concern that he may have suffered prejudice as a result of the trial judge’s comments. Analysis [48] In this case, until his counsel’s opening statement on the first day of trial, Mr. Folker maintained that he knew nothing aboutMs. Shirran’s disappearance. Mr.

Folker’s substantial admissions by way of his counsel’s opening statement on the first day of trialtherefore came as a complete surprise to the Judge and the Crown, not only because of their significance to the case but also because ofthe time and place of their disclosure. [49] The Judge’s comments about never having seen such a turn of events in his “40 years at this business” and that he and theCrown “did not know what was coming” would have illustrated to the Jury that the Court was surprised to learn of Mr. Folker’sadmissions through his counsel’s opening statement.

However, in virtually the same breath, the Judge specifically stated that thedisclosure of Mr. Folker’s admissions in this manner was “valid” and that “the defence has the right to take this position in the way theyare proceeding.” He stated that the burden remained on the Crown to prove the charge against Mr. Folker beyond a reasonable doubt,and that they, the Jury, still had “to make a determination if Mr. Folker is guilty or not guilty of murder or any included offence that mayarise as a result of the evidence.” The Judge went on to explain the possible effects of Mr.

Folker’s admissions, and he advised the Jurythat the court would adjourn until the following day so counsel could reorganize accordingly. The record shows that the entirety of the

Judge’s comments took no more than five minutes. [ 50 ] Defence Counsel correctly points out that admissions are often made in the course of a trial. However, it is fair to say that it is quite unusual for such substantial admissions to be made in counsel’s opening statement with no notice. That said, there is nothing improper or underhanded about Mr. Folker making those admissions where and when he did, and there is no reason why prejudice to him should result.

While it may have been preferable for the Judge not to have indicated his surprise at the unusual turn of events, his reaction was an understandable one in the circumstances. Regardless, taken in context, his comments could not have prejudiced Mr. Folker in the eyes of the Jury, or left them with the impression that the admissions were improper or underhanded. The Judge clearly indicated that Mr. Folker had done nothing wrong in instructing his counsel to disclose his admissions where and when he did, and that the Jury still had to decide whether Mr. Folker was guilty beyond a reasonable doubt.

I also note that the Judge’s comments come nowhere close to the egregious and sarcastic comments made by the trial judge in Ertmoed , which when considered in context, were held to be insufficiently prejudicial to justify a mistrial. [ 51 ] When the Jury was recalled after dismissal of the motion for mistrial, the Judge made the following statement: … The last time we were in Court was Wednesday morning and I just want to make a couple of comments, now, in relation to the proceedings.

I want to make it clear that the defence was under no obligation to give any prior notice to the Court or the Crown in relation to admissions. It is not unusual for admissions, including major admissions, to be made by the defence at the beginning of the trial as we done in this case. It has been suggested to me that you, the Jury, might have taken a wrong

interpretation of my comments to you Wednesday past, regarding the admissions made by Mr. Folker and the timing of the admissions. If you have interpreted my comments as being in any way negative towards the accused or his counsel, I wish to clarify this today. Mr. Folker had the right to make those admissions and he had the right to make them when he did. Nothing negative of the accused as to his innocence or guilt is to be inferred as a result of any statement I have made.

You should not draw any negative inference against the accused, or in favour of the Crown, resulting from any statement made by me concerning admissions. It does not, in any way, relate to Mr. Folker’s innocence or guilt, which you, the Jury, have to decide after you hear all the evidence and you are properly instructed on the law. So, I just wanted to clarify that straight up today so, just, anything that I might have said, just ignore. [ 52 ] I would describe these comments to the Jury as clear, curative and generous. They were made without repeating the words that gave rise to Mr.

Folker’s concerns, and they underscored that Mr. Folker was well within his rights to have disclosed his admissions where and when he did and that nothing negative should be inferred from what had transpired. Accordingly, if there had been any prejudice to Mr. Folker as a result of the Judge’s initial comments, his curative comments would have addressed it and would have been “a complete answer,” like in Snow (paragraph 50 ), to Mr. Folker’s concerns. [ 53 ] In the result, I conclude that the Judge did not err by declining to declare a mistrial. Admission of the “Tammy Letter” [ 54 ] When the police searched Mr.

Folker’s vehicle in August 2010, they found an un-posted, handwritten letter addressed to a friend of Mr. Folker above the driver’s sun visor. The letter reads as follows: Dear Tammy, It is with heavy heart and weary hand I write these words to you. Words that I ache to say in person, should have long ago, and pray that I will one day. I miss you. I love you (sisterly), and I never wanted to leave you. Especially in your time of need. It brings me great sorrow and regret that between your divorce and your dad, I was not there with a shoulder for each … and to move furniture etc … So why then?

Well, what is the one thing that fills the deepest part of your soul? Deeper than friendship. Even ours? Your children. Moses. I could not bare to lose him, and I surely would have according to his mother, if I even spoke to you. Her jelousy of you and I had no bounds, and her surveylance on me was flawless. She resented the entire family in fact, and Hantsport, and our entire relationship, which if not for Moses, I would say should never even have happened.

She had a serious mental illness and I know that, yet still looked … at her real beauty that shawn through, like a little sunlight struggling to break through the clouds. She spent her entire pregnancy almost alone, in a hormonal tornado, and always wanted to go home. I could not provide for her and the guilt crushes me. Coming over here was necessary for her, and I, for Moses. Our life was a ballance of poverty, frustration, misery, and joy. Moses. He is such an incredible boy. He is a gift. He is the love of my life. He is the reason I am still here. There is no work. I know nobody.

I could not stand the sight of his mother, yet I stayed for him. I just wanted so much to be a good father. A real father. Like Burnie Gillis. I know that if we separated, I could battle through the shitty work, and the living here, just to have the chance to be that father. (like I have been by the way, I am awesome at it), but I know that her muttled mind would see past that and come to the conclusion that I am against her, and I must dissapear completely. And then, like SATAN answered my prayers she left that night and has not come back. Please believe I did not want that boy to lose his mother.

And now, because I am a ‘suspect’, and ‘Child Protective Services’ seemingly has more power than GOD, he has lost his father too. I won’t know anything until the 31st, when we have a hearing at Family Court. I AM INNOCENT. I have begun to pray. For real. Not like “Oh my Jesus, I’ll never drink that much again and piss everywhere, God!” I really pray that Moses and I make it home. I just want to come home and raise my son. Even if, God willing, Ann returns, I will fight for this. Please, please do not deliver this to the Hantsport rumor Mill. I send this because I believe I owe it to you.

This is between you and me.

Maybe to fill in some missing pieces a little bit. Please do not respond by mail or home phone. I am being watched and I can’t have them knowing that I want to go home. (and will, assoon as we can). Wog has my cell #. I love you Flav. and the kids. [55] At trial, Mr. Folker did not contest the admissibility of the letter but argued that the line in the letter “And then, like Satananswered my prayers she left that night and has not come back” was inflammatory and prejudicial to him and that it should be excised.

The Judge’s Ruling [56] In his ruling, the Judge said he did not find the Satan line “particularly prejudicial to the accused” and that the letter wasrelevant evidence going to Mr. Folker’s state of mind and to his credibility. Regarding credibility, the Judge noted that because Mr.Folker had indicated to the Jury that he would be testifying, he would have ample opportunity to explain the wording in his letter. TheJudge also said that to excise the Satan line would likely cause the Jury to wonder what they had been prevented from seeing. In thisregard, the Judge relied on R. v.

Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, which held that “mixed” statements, which are statementscomprising both inculpatory and exculpatory parts, should be admitted in their entirety, and that a jury should be instructed to considerboth the inculpatory and the exculpatory parts in deciding the reliability of the statement. [57] In this Court, Mr. Folker argues the letter ought not to have been admitted. He is not saying that it is irrelevant; rather, he saysthat the Judge failed to give proper weight to the prejudicial effect of the Satan remark when weighing it against the probative value ofthe letter. Mr.

Folker also maintains that the Judge focussed on the fact that the letter was a mixed statement instead of properlyweighing its probative value against its prejudicial effect. The Law [58] The general rule is that all relevant evidence is admissible unless it is subject to an exclusionary rule. This is so regardless ofwhether the evidence is helpful or hurtful to a party’s case.

An accused’s statement, unless given to a person in authority, ispresumptively admissible, if relevant. [59] Sometimes a party seeks to adduce evidence which has some relevance but which could cause a trier of fact to engage inimproper reasoning or draw improper conclusions. This evidence is, by nature, not direct evidence. It is usually circumstantial orsimilar fact evidence.

The risk of improper reasoning and the drawing of improper conclusions that could result from admitting suchevidence is what is meant by the prejudice a trial judge must consider when balancing it with the probative value of the profferedevidence. This type of prejudice was described by Binnie J. in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at paragraphs 137 to 147,and more recently by Watt J.A. in R. v.

Ansuri, 2015 ONCA 575. [60] In Handy, Justice Binnie explained that the prejudice to be considered is not that the proffered evidence is hurtful to theaccused, or that it increases the risk of conviction; rather, it is moral prejudice that could result from improper reasoning or conclusionsbased on the proffered evidence.

When the proffered evidence has the potential to lead to these results, a trial judge has to carefullybalance this potential prejudice with the probative value of the proffered evidence, and decide that its probative value outweighs itsprejudicial effect before admitting it. [61] In Ansuri, Watt J.A. expanded on the reasoning in Handy, and set out a list of factors for consideration when assessing thepotential prejudice of such proffered evidence: i. the degree of discreditable conduct disclosed by the evidence; ii. the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character; iii. the extent to which the evidence may confuse issues; and iv. the ability of the accused to respond to the evidence. [62] A judge’s evidentiary ruling resulting from such a balancing exercise is accorded a high degree of deference by appellate courts,providing that the trial judge applied proper legal principles, based his or her decision on relevant facts and considerations, and did notmisapprehend the evidence (R. v.

Arps, (SCC), [1998] 3 S.C.R. 339 at paragraph 42; R. v. Bevan, (SCC), [1993] 2 S.C.R. 599 at paragraph 31; and R. v. B.(C.R.), (SCC), [1990] 1 S.C.R. 717 at pages 733-734). Analysis [63] In my view, the Tammy letter itself is relevant, although not of high probative value. It is relevant because it shows Mr.Folker’s state of mind – relief that he could rekindle his relationship with Tammy now that Ms. Shirran had disappeared from his life –which could go to motive for commission of the crime, and be probative of his loathing of Ms. Shirran and his desire to be free of her. Itcould also be relevant to Mr.

Folker’s credibility in that its contents, expressed directly by the hand of Mr. Folker, could support orcontradict his admissible statements and/or his testimony which he had already informed the Jury he would be giving. [64] The question then becomes whether the Satan line could lead the Jury to improperly reason or conclude that Mr. Folkermurdered Ms. Shirran. The risk of the Jury engaging in improper reasoning or concluding is the prejudice that has to be considered inthe balancing exercise.

[65] The Satan reference in the letter is a metaphor used by Mr. Folker to tell Tammy that by virtue of someone’s evil or satanic act,Ms. Shirran had disappeared from his life leaving him free to reconnect with Tammy. Mr. Folker expressly indicated in the letter that hewas not responsible for Ms. Shirran’s disappearance. He strongly intimated that her disappearance was the result of someone else’s evildeed, and even suggested she might return. In this context, the description of Ms. Shirran’s disappearance without a trace as

an act ofSatan does not reflect prejudicially on Mr. Folker. Many could regard such a situation as an evil or satanic occurrence. In any event, theuse of the word Satan in this context is unlikely, in this day and age, to cause prejudice and was unlikely to cause the Jury in this case toreason or conclude that Mr. Folker murdered Ms. Shirran. [66] The Satan line could be read to mean that he was praying for Ms. Shirran to be out of his life and that his prayers wereanswered. Such an

interpretation, of course, does not mean that he murdered Ms. Shirran. However, this

interpretation has bothprobative value and the potential for prejudicial reasoning. [67] The sentence referencing Satan, or indeed the whole letter, was straight-forward and unambivalent. The Jury may haveinterpreted parts of it to support Mr. Folker’s defence and other parts to contradict it – that is their job, with the guidance of the Judge’sinstructions. Accordingly, it cannot be concluded that admission of the whole letter would be confusing.

I agree with the Judge thatexcision of the Satan sentence from the letter would have been more apt to confuse the Jury due to their wondering what had beenexcised and why. [68] As the Judge noted, Mr. Folker had stated to the Jury that he would be giving evidence. The Judge was aware of this, andreasoned that Mr. Folker would have the opportunity to explain his use of the Satan reference to the Jury so as to address his concern. Iagree. [69] In

summary, the Judge gave a reasoned decision why he would not excise the Satan reference from the Tammy letter beforeadmitting it. He weighed its prejudicial effect against the probative value of the letter and based his decision on proper principles andrelevant facts and considerations. Insofar as Mr. Folker’s argument that the Satan line could be considered to be inculpatory isconcerned, the Judge also considered and applied the law respecting mixed statements. The Judge has not been shown to be in error, andhis decision is owed deference. Accordingly, I would not give effect to this ground of appeal.

SUMMARY [70] Mr. Folker has not shown that the Judge erred in admitting either Mr. Folker’s statements of July 24, 27 and 28, 2010 or theentire Tammy letter into evidence, or that the Judge erred in failing to declare a mistrial. Disposition [71] No error having been shown, I would dismiss Mr. Folker’s appeal. ______________________________ L. R. Hoegg J.A. I Concur: _______________________ B. G. Welsh J.A.

White J.A. dissenting in part, concurring in the result: [72] I have reviewed the reasons of my colleague Hoegg J.A. and while I agree with the disposition of the appeal and with heranalysis of the issues of the admissibility of the letter and the mistrial application, I hold a different view on the issue of detention. Unlike my colleague I would conclude that Mr. Folker was detained by police, but that the statements obtained are nonethelessadmissible. Introduction [73] I have reviewed the ruling of the trial judge and, with respect, I find his conclusions on the issue of detention contradictory.

Iam satisfied that this is because he failed to properly apply the test for what constitutes detention within the meaning of the Charter asset out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Suberu, 2009 SCC 33, [2009] 2S.C.R. 460 and did not ask himself all of the questions that he should have. I will review the meaning of detention and then apply it tothe facts of this case.

The Test for “Detention” in Sections 9 and 10 of the Charter [74] Prior to Grant, the leading case on the meaning of detention in the context of a sit-down interview with police was the judgmentof Martin J.A. of the Ontario Court of Appeal in R. v. Moran (1987), (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.). Moran set out several factors to consider in determining whether or not a detention within the meaning of

section 10 of the Charter hadoccurred. As the jurisprudence developed those factors crystallized into a fairly bright-line test. A detention was usually found whenpolice acquired reasonable and probable grounds to believe that the accused was the likely perpetrator of a criminal offence andconducted questioning with a view to inducing self-incriminating statements, putting the accused in jeopardy of arrest.

[75] However, Moran was under-inclusive and insufficient to protect the right against self-incrimination reflected in

section 10 ofthe Charter. Particularly in the years since the judgment of the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R.59, and with the recent Suberu, it has become clear that Moran did not always protect an accused person who was detained forinvestigative purposes. An investigative detention is a lawful detention that requires reasonable and probable grounds to suspect (notbelieve) that the accused is involved in the commission of an offence (Mann, at paras. 34-35). Subject to justifiable officer or publicsafety concerns the accused must be afforded his or her

section 10 rights immediately upon detention (Suberu, at para. 42). [76] The Supreme Court of Canada in Grant expressly adopted a test that was broader than that established in Moran, in order toprotect the rights of the accused in every instance of detention by police. The Court explained that “[t]he language of the Charter doesnot confine detention to situations where a person is in potential jeopardy of arrest” (Grant, at para. 41). [77] The test in Grant is centered on the perceptions of the claimant.

Absent physical restraint, psychological detention may beestablished “either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable personwould conclude by reason of the state conduct that he or she had no choice but to comply” (Grant, at para. 41). Thus, the perceptions ofthe police, while relevant, are not determinative of detention. I disagree with my colleague that the test for detention is purely objective. Rather, it is a modified objective test (See R. v.

Sunshine, 2010 BCSC 44, 208 C.R.R. (2d) 59 at para. 42, appeal from convictiondismissed on other grounds, R. v. Sunshine, 2013 BCCA 102, 297 C.C.C. (3d) 145 leave to appeal to the SCC dismissed 35336,(September 19, 2013)). [78] Suberu provides an example of how the Grant test is to be applied. The key is to determine “the line between generalquestioning and focussed interrogation amounting to detention” (Suberu at para. 29).

While focussed suspicion is not on its own enoughto establish detention, focussed suspicion combined with jeopardy for the accused, combined with something more than a general inquiryfrom police, may be sufficient to give rise to the claimant’s reasonable perception that he or she is detained due to an implicit directionnot to leave (see for example, the dissenting judgment of Monnin J.A. in R. v. Koczab (A.), 2013 MBCA 43, 309 C.C.C. (3d) 183 atparas. 94-101 which was upheld by the Supreme Court of Canada R. v. Koczab, 2014 SCC 9, [2014] 1 S.C.R. 138.).

The Ruling of the Trial Judge [79] I am satisfied that in applying Moran, which was cited to him by counsel, the trial judge failed to appreciate that Grant sets outa broader test for detention. Moreover, the trial judge focussed almost entirely on the perceptions and knowledge of the police and failedto apply the claimant-centered modified-objective test, which is the same error identified in R. v. Johns (1998), (ONCA), 123 C.C.C. (3d) 190 (Ont.

C.A.) by Laskin J.A., who stated: 27 Moreover, in holding that Johns was not detained until he became a suspect, the trial judge did not consider whether Johnsreasonably believed that he was detained. Instead, the trial judge focussed on Johns’ status in the minds of the police. Although theperceptions of the police may be relevant to the assessment of whether an accused is detained, they are not decisive. See R. v. Hawkins(1993), 79 C.C.C. (3d) 576 (S.C.C.) and R. v. Caputo (1997), (ON CA), 114 C.C.C. (3d) 1 (Ont. C.A.).

Because of this erroneous approach, the judge asked himself whether the police had reasonable or probable grounds to believe Mr.Folker had committed an offence as opposed to determining whether the police had “zeroed in on the individual as someone whosemovements must be controlled” (Suberu, at para. 31) and whether Mr. Folker could thus have a reasonable perception that he wasdetained. Application [80] The trial judge found that on July 24, 2010 the disappearance of Ms.

Shirran was a “suspicious disappearance” (at para. 47 ofhis Reasons) and that the police had a “suspicion that a crime had been committed” (at para 36) but there was “no evidence of a crimebeing committed” (at para 43). The judge found the police had no “reasonable suspicion that Mr. Folker was somehow implicated in[Ms. Shirran’s] disappearance” (at para. 46). However, there was talk of a break-up between Mr. Folker and Ms. Shirran and the police“had a hunch that Mr. Folker may have known more information on Ms. Shirran’s disappearance” (at para. 37).

Thus “it would be naïveto believe that the police never had many questions for Mr. Folker” (at para. 46). Sgt. Roche commented to Mr. Folker near thebeginning of his July 24, 2010 interview: “No one’s come forward with any significant information to assist us. So obviously we havesome very serious concerns as to what, what may have transpired here.” The police considered initiating surveillance on Mr. Folker onJuly 23, 2010 and did so on July 24, 2010, after the case had been transferred to the Major Crimes Unit of the RNC.

This indicated thatthe police were taking the file as “serious enough to put more resources into the case”. [81] The trial judge’s findings are contradictory and not directed at applying the test in Grant. In this situation they may be re-visited (Grant, at para. 45). [82] The situation here is a far cry from the almost random street encounter in Suberu where the Supreme Court found no detentionbecause the investigation was only beginning and the officer’s questions were exploratory.

Following the example of the Supreme Courtin Suberu and looking at the circumstances in the context of the Grant test, one may reasonably infer the following: - There was suspicious disappearance and a possible crime had occurred. Police were investigating the matter. While the exactnature of the crime was not yet determined, there was a suspicion that Mr. Folker might be involved and, unlike in Suberu, an objectiveconstellation of facts supported that suspicion. The police not only suspected that Mr. Folker was involved, they had reasonable groundsfor this suspicion. Mr. Folker was the last person to see Ms.

Shirran. He told the police that they had had an argument over their child inthe context of a break-up. What is more, while alleging that he did not know where she was and that he was worried about her, Mr.Folker waited a long time to call the police and did not call Ms. Shirran on her cellphone at all. In fact, evidence showed no activity onMs. Shirran’s cellphone or bank accounts since her disappearance. - Mr. Folker’s police interviews were not general or preliminary (several meetings had already been had with the family).

Aftergathering the preliminary information, the police had clearly formed a theory and began to pursue it with Mr. Folker as a suspect. Sgt.Roche, one of the lead investigators was called back from his annual leave in order to proceed with the case.

- The police were engaging in a focussed interrogation, with specific questions such as: whether Mr. Folker had physically harmed Ms. Shirran; why Mr. Folker did not report Ms. Shirran missing sooner; why Mr. Folker had not called Ms. Shirran’s cellphone since she had been missing; comments that the police have some very serious concerns about what happened to Ms. Shirran; comments that the police may later have to speak to Mr. Folker on a “different level”; suggestions that Mr. Folker tell the police if he knows more than he is revealing and; suggestions that Mr. Folker undergo a polygraph test.

The police were clearly trying to get an incriminating statement or an admission of greater involvement out of Mr. Folker. - The decisions to transfer the case to the major crimes unit of the RNC, and to interview Mr. Folker and place him under surveillance support the view that the point at which this case was transferred to the major crimes unit was the point at which the police had zeroed in on Mr. Folker as someone whose movements must be controlled. While not arrested at the end of the July 24, 2010 interview, the level of scrutiny and focus on him increased.

The fact that there were several subsequent interviews during which the police obtained consents for multiple searches of Mr. Folker’s property also indicate that the police continued to have a keen interest in his actions. - The police called Mr. Folker to ask him to come to the police station, which he agreed to do. He attended in his own vehicle, and left at the end in his own vehicle. The interviews were recorded and Mr. Folker was asked to turn off his cellphone. The interviews, especially the first one, were not a brief delay on the street as in Suberu , but lengthy.

He was not directly told he could leave and in fact was told to ask the two officers present before leaving the room, for example to go to the bathroom, implying a direction to stay put (See Koczab , at para 101 ). - Mr. Folker testified that he felt compelled to go to the police interview. During the July 24, 2010 interview, Mr. Folker was asked if he knew why he was at the police station and he stated, and Sgt. Roche agreed, that it was “part of the investigation”. [ 83 ] The facts support the conclusion that Mr. Folker’s case can be characterized as an investigative detention.

While the police may not have known on July 24, 2010 that Mr. Folker would become the suspect in a murder case, they had a reasonable suspicion that he contributed to the disappearance of Ms. Shirran, which is criminal conduct. The police need not be able to arrest for an offence to trigger a detention. Investigating the precise involvement of a suspect in potential criminal conduct is the entire purpose of an investigative detention. It was at the July 24, 2010 interview that Mr.

Folker became subject to the coercive power of the state and needed the advice of counsel in order to safeguard his right against self-incrimination. He should have been advised of that right. Conclusion Regarding Sections 9 and 10 of the Charter [ 84 ] Because I have concluded that the police had reasonable and probable grounds to suspect that Mr. Folker was involved in an offence, I conclude that he was lawfully detained and, accordingly, there was no breach of

section 9. However, I conclude that his

section 10 rights have been violated as he should have been informed of the reasons for his detention and afforded his right to counsel. It therefore becomes necessary to consider whether any evidence should be excluded under section 24(2). Should Evidence be Excluded under Section 24(2)? [ 85 ] Following the three-step approach outlined in Grant , I am unable to conclude that any evidence in this case should be excluded. While Mr. Folker seeks the exclusion of his uncautioned statements, I cannot conclude that their admission would bring the administration of justice into disrepute. In them, Mr.

Folker made no significant admissions. Moreover, he admitted at the outset of his trial that he had lied to police, so the content of the statements would not undermine his credibility any further. The impact on his right against self-incrimination was therefore minimal. While during the course of the interview the police were able to obtain a number of consents to searches, all of those searches were cautioned and Mr. Folker was advised that their results could be used against him. Thus I cannot conclude that this derivative evidence should be excluded as in R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215 .

Police Conduct [ 86 ] Although I would decline to exclude evidence, I do not wish to endorse the conduct of the police in this case. The breach of

section 10 was willful and flagrant. Furthermore, in testifying before the Court, Sgt. Roche gave what appear to me, from a careful review of the transcript, to be intended to minimize the deliberate breach. I am very concerned by this approach by an agent of the state. The following excerpts from the direct and cross-examination of Sergeant Roche illustrate the approach taken. Direct Examination Q. Okay. And for what reason would you use them to surveil a complainant? A. To, a person provides us with information, a statement, we need to substantiate that.

So we use them to ensure that what the complainant is telling us is accurate and truthful , if you like. . . . Q. Okay. So, as I understand it then, it wasn’t a decision made on the 23rd that surveillance was going to be used? A. That’s correct. … . . . Q. Okay. And why was the decision made then on the 23rd to request use of the unit? A. It’s an investigative technique we had available to us. … So, you know, err on the side of caution and let’s try and gather information that can support what he’s telling us to be truthful. …

. . . A. … So surveillance, at the time, was decided that we could use surveillance to determine whether or not this is accurate, that he doesn’t know where she is. … Q. Sgt. Roche, I guess the question would be then, why didn’t you give Mr. Folker his rights and caution on July 24th? A. At that time, my lord, Mr. Folker was reporting his common law spouse missing and it’s an interview, the sort of interview I would’ve done, I’ve done hundreds, if not thousands of times, with complainants and files. It’s a follow-up interview to solicit detailed information from them.

At that time, we were still having, we were having reports of sightings of Ms. Shirran across the island. So much so, that an investigator was sent to Corner Brook to follow up on those sightings. So at that point in time, I didn’t feel I had to provide Mr. – he wasn’t under arrest. He wasn’t being detained. He wasn’t a suspect in my mind at that point in time or even a person of interest at that point in time. He was the complainant in a file. . . . Q. What were you investigating that morning? A. We were investigating a missing person. Ms.

Shirran had walked away from her residence on the evening of July the 18th, after an argument with her common law partner, Mr. Folker. No one had seen or heard from her since, at that point in time. Any family members that we were aware of. . . . Q. Okay. Do you recall when it was determined or when it was put in place that the surveillance team would, in fact, be utilized? You had them on standby, when did you determine that they were, in fact, going to be called into action? A. When Sgt. Harvey and I stepped out for our first break, it would’ve been discussions with Staff Sgt.

Randell who was outside watching the interview in relation to whether or not we would utilize surveillance and a decision was made that we would and obviously I was to conduct the interview, so Staff Sgt. Randell would’ve looked after making the necessary phone calls. Q. Okay. And do you recall, at least from your perspective, excuse me, what the rationale or the basis was for calling surveillance in at that time? A. At that time, it is an investigative technique that we have available to us. During the course of my interview with Mr.

Folker, and stepping out and speaking with my colleagues, it was determined we would utilize them, you know, to gather evidence, if any existed, as to whether or not Mr. Folker is telling us the truth in his statement. No one has had contact with Ms. Shirran, that no one knows where she is. To support his statement or to provide other evidence that he wasn’t being truthful with me. Neither of which we knew at that point in time. Cross-Examination Q. Then on July 23rd, that’s when there’s sort of a see change (phonetic) in the personnel handling the investigation, isn’t it?

That’s when the CASA sort of steps to one side and the Major Crime Unit steps to the forefront and you assume sort of the, what exactly is your position again? A. My position on the file was Case Manager, my lord. . . . Q. …. A. My lord, I would say that I’m an experienced investigator. I’ve worked in the Criminal Investigation Division for twenty- two years this June, primarily in crime, in the area of crimes against persons, dealing with both our Sexual Offence Unit and in our Major Crimes Section. Yes, I am very experienced.

There’s no doubt about that, and no doubt that is one of the reasons why I was asked to assist in this matter. … . . . Q. … But you would agree that by you coming on board on July 23rd, this investigation is getting really ramped up. I mean how can you not agree with that? A. My lord, I know why I was called and asked to come in to assist on this matter and Staff Sergeant Randell could address that as well and I guess I can, with the investigation getting ramped up, … . . . Q.

So your still maintaining that, even though a very seasoned investigator like yourself with your extensive background, have all this information at their disposal, had a common law partner who had, you know, a motive, not to be forthright possibly, but who could possibly have a motive for having done something to her, given their relationship issues, you still didn’t view him as being a suspect in the disappearance? A. My lord, no I did not. . . . Q. … my first reaction when I heard that she disappeared was I guess someone better speak to the husband. You didn’t have that thought? A.

Well obviously yes I did, my lord. But not in that context. My lord, we had discussions surrounding interviewing Mr. Folker and we had discussions about keeping a very open mind in interviewing Mr. Folker, because , … . . . Q. You are not exactly sending a squad car to speak to a shoplifter when you get a surveillance team, so what I am asking you is there must be something significant behind a request for a surveillance team? A.

Well, my lord, in this particular case we did have a lady who was missing for several days without, other than these tips coming in, and there is an investigative team that we can use and we decided to avail of it, my lord. . . .

Q. But you did decide to put surveillance on her common law husband? A. Yes, my lord. Q. You decided to put surveillance on a common law husband, knowing everything you just said you’d known, but you still didn’t suspect him? A. No, my lord, I did not, my lord. I can only tell you how it went, what was going through my mind at that time, my lord. Q. Okay. So what you are telling the court is that even though you had at your disposal all the information you’ve laid out and you’ve decided to seek dedication of a significant police asset to following one person you still did not suspect him? A.

My lord, it’s an information gathering technique. At that time I was trying to keep an open mind. I did not suspect. … . . . A. … I did not know what, if any information surveillance may show us, if anything at all. Q. But then why didn’t you place anyone else under surveillance? A. My lord, I cannot answer that question at this time other than we did not place anyone else under surveillance at that time. . . . Q. I’m a bit confused. Why not out of an abundance of caution wouldn’t you’ve just read him his rights on July 24th? A.

My lord, again, my thought at the time was this is a man who is reporting his common law spouse missing. We are having, doing an interview with him, to solicit more information if you’d like about the events leading up to that and any knowledge he may have surrounding why she may have left or where she may be. We were having sightings across the province and within the St. John’s area of possible sightings of Ms. Shirran. It was decided we would not do caution interview at that time. Would it have been easier? Perhaps, looking back at it now but then I would have been accused of tunnel vision, I feel. . . .

Q. - you really had no suspicions? A. I did not at that point in time, I actually believed Mr. Folker. Q. If you believed him than why half way through an interview did you leave the room to trigger the investigation, the Mobile Support Team, the Mobile Surveillance Team? A. As I said to you, the question about the phone call caused me some concern. I wanted to make sure we erred on the side of caution, it was there for us to use and we used it, my lord. Q. Then if you suddenly had suspicions about the phone call, why didn’t you caution him then? A. I didn’t, my lord. Q. Why not? A.

It wasn’t that severe, you know, it was a concern of mine and he was going to check his phone records and get back to me. . . . Q. But, but again, I don’t understand. If you don’t suspect him of being involved in her disappearance why did you care where he went? A. At some point down the road, questions could be asked and I’d like to have them covered off in advance, my lord. Q. Why? A. In the event the investigation takes another turn, my lord. Q. Okay. Now what would be the other turn? A. If in the event that Mr. Folker’s status change in the investigation, my lord. Q. Okay. If he became a suspect? A.

If he was to become a suspect, my lord. . . . (Emphasis added.) [ 87 ] It is clear that Mr. Folker was the only person being investigated. Yet Sgt. Roche says he believed him. Mr. Folker was only a “complainant” – not a suspect, not “even a person of interest”. The police surveillance actions were only “an investigative technique” to gather information to establish Mr. Folker’s truthfulness. If police were not suspicious of Mr. Folker, believing him to be an honest complainant, their action in placing him under unlimited 24 hour surveillance seems inexplicable.

What reason for invading his privacy to such an extent could possibly be sustained in the absence of him being at the very least a “person of interest”? The contrary conclusion means that at any time a citizen makes a complaint to the police and is not a “suspect” or “even a person of interest” he or she can be legitimately placed under 24-hour police surveillance. Such a notion is contrary to reason or common sense and would condone a policy of state surveillance of any citizen even if not a person of interest – a major and unsustainable intrusion on privacy. [ 88 ] In light of Sgt.

Roche’s statements under oath, the use of very substantial state resources to place a non-suspect, non-person of interest under 24 hour surveillance can only be seen as either incredible or an incompetent and unjustifiable waste of public resources. [ 89 ] The obvious inference is that Mr.

Folker was a suspect and that the police, perhaps in attempting to ensure that they could not be accused of tunnel vision, and to avoid advising him of his Charter rights, maintained the presense that he was not a suspect. [ 90 ] The agents of the state should have reminded themselves of the policy of the state as enshrined in the Charter , avoided the pretense that he was not a suspect and, afforded him his rights under

section 10. [ 91 ] To advise a suspect of his or her Charter rights does not equal tunnel vision. If so, arrest or detention would bring an investigation to an end – the very thing to be avoided and for which police have been rightly criticized. Conclusion

[ 92 ] I agree with my colleague that the trial judge did not err by admitting Mr. Folker’s letter and in not declaring a mistrial. While I conclude that Mr. Folker was detained by police and should have been a

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