R. v. Peterson (D.C.), 2013 MBCA 104

Citation: R. v. Peterson (D.C.), 2013 MBCA 104 Date: 20131125 Docket: AR 12-30-07902 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Holly C. Beard BETWEEN : ) A. L. Sansregret and HER MAJESTY THE QUEEN ) J. D. Soper ) for the Appellant Respondent ) ) A. Y. Kotler ) for the Respondent - and - ) ) DANIEL CONAN PETERSON ) Appeal heard: ) September 24, 2013 ) (Accused) Appellant ) Judgment delivered: ) November 25, 2013 BEARD J.A.

THE ISSUE [ 1 ] On March 13, 2012, after a trial by judge and jury, the accused was found not guilty of second degree murder but guilty of manslaughter. He was sentenced to a period of incarceration of nine years, less a credit of 52 months for pre-sentence incarceration. The accused has appealed both his conviction and his sentence. The three grounds of appeal are: (

i) that the trial judge erred in law by finding that the accused was not detained and his rights under s. 10(

b) of the Canadian Charter of Rights and Freedoms (the Charter ) were not violated; (ii) that the trial judge erred in law by admitting the accused’s statement; and (iii) that the trial judge erred in law by imposing a sentence that failed to give adequate credit for pre-sentence custody. [ 2 ] The first two grounds of appeal relate to a voir dire held prior to the trial, in which the trial judge dismissed the accused’s motion under the Charter to exclude his statement from evidence and admitted the statement into evidence (see 2012 MBQB 34 , 276 Man.R. (2d) 26). The third ground of appeal relates to the sentence (see 2012 MBQB 305 , 285 Man.R. (2d) 172). THE FACTS [ 3 ] This is a

summary of the facts as set out by the trial judge in her decision on the voir dire . [ 4 ] The deceased’s roommate, Wendell Bateman, last saw the deceased, James Cruickshank, alive when Mr. Bateman left for work at 2:00 p.m. on October 29, 2008. As Mr. Bateman was leaving the apartment, a person whom he knew as “Dan” (later identified as the accused) arrived. Mr. Bateman told the deceased that “Dan” had arrived, and then he left for work. When Mr. Bateman arrived home from work, at approximately 4:00 a.m. on October 30, 2008, he found the deceased, dead, lying on blood-soaked sheets on the bed.

He called the police, who arrived within minutes. [ 5 ] Two homicide detectives, Detective Sergeant O’Donovan and Constable Yerex (the detectives), were assigned to the case. After receiving a briefing, they interviewed Mr. Bateman, who had been taken to the Public Safety Building by other officers. In addition to the above-noted information, Mr. Bateman advised the detectives that he had called the deceased at 1:00 a.m. and 3:00 a.m., but received no answer.

He also said that he knew little about the accused, other than that he had met him four or five times, that he was either a friend or boyfriend of the deceased (who was homosexual), that the accused occasionally stayed with the deceased but was probably homeless, and that he sometimes stayed with his mother, who lived near Polo Park.

[ 6 ] The detectives spoke to other employees at Mr. Bateman’s place of employment to confirm that he had, in fact, been working on October 29 and 30, 2008. They also confirmed Mr. Bateman’s information that the accused was known to be in the company of the deceased on occasion. [ 7 ] The police identification unit checked the apartment for fingerprints and one, taken from a glass in the deceased’s bedroom, was identified as that of the accused.

The detectives were able to obtain a photograph of the accused and confirmed two known addresses, one being near Polo Park. [ 8 ] The detectives testified that they were interested in speaking to the accused because he was the last person known to have seen the deceased alive. They viewed him as a person of interest and possibly a witness, but did not view him as a suspect, because they believed him to be a friend of the deceased, and they had no reason to link him to the killing.

They hoped that he might be able to give them some information that would lead them to the next step in their investigation. [ 9 ] Police surveillance units were assigned to watch the Polo Park address and the police surveillance officers advised the detectives when they located the accused outside the building. At 5:31 p.m. on October 31, 2008, Detective Sgts. O’Donovan and Loehmer attended and approached the accused, identifying themselves as police. Detective Sgt.

Loehmer told the accused that they were hoping that he would be prepared to help them with the investigation concerning James Cruickshank and asked if he would go to the Public Safety Building with them. They both testified that the accused readily agreed and seemed anxious to help. Neither detective told the accused that the deceased had been murdered, which Detective Sgt. O’Donovan said was his practice. He said that using the word “murder” can frighten people, who then become reluctant to get involved.

As it happened, the accused told these officers that he guessed it might have been Cruickshank when he read in the newspaper about “the guy in the apartment on Hargrave Street” (at para. 14). [ 10 ] During the drive to the Public Safety Building, the accused was described as being friendly, cooperative and polite. He was quite talkative, volunteering many details about his life. At one point, he asked how he could help them in the investigation. Detective Sgt.

O’Donovan told the accused that he would leave that discussion until they got to the police station. [ 11 ] At the Public Safety Building, the accused was placed in a standard interview room where all interviews are conducted, whether with a suspect, person of interest or victim. The room is small, has minimal furniture which is all attached to the floor and a door that locks from the outside. The accused was left alone for a period of time, during which time he was given cigarettes and pizza and taken to the washroom. [ 12 ] At 8:16 p.m., following Cst. Yerex’s return, the detectives began the interview.

Because they did not know whether the accused had any helpful information, they did not videotape this part of the interview. Their practice was to conduct a further interview on videotape if they determined that there was information that would assist in the investigation. They testified that, as in the car, the accused was open, friendly and cooperative.

He offered many details about his relationship with the deceased, which included him buying crack cocaine from the deceased and delivering drugs to other customers of the deceased on a regular basis. [ 13 ] The accused said that the last time he had seen the deceased was on October 29, 2008, and that he had been at the apartment several times that day. That was consistent with other information that the detectives had, including photos from the surveillance camera at the apartment building.

He said that the deceased’s supply of drugs had run out and they were waiting for the delivery of more. [ 14 ] At that point, Detective Sgt. O’Donovan asked whether the deceased was killed for his stash of drugs, which he thought was an obvious question, given that the deceased was obviously a mid-level drug dealer. He said that there was a lengthy pause, following which the accused said, “No, he wasn’t killed for drugs” (at para. 22). The detective then asked why the deceased was killed.

There was another lengthy pause, and then the accused said, “I fell asleep on his bed and when I woke up he was performing a sexual act” (at para. 22). While the trial judge stated that the detective then asked the accused “What sex act?” (at para. 22), the transcript indicates that the detective said only “What?” The accused said, “A blow job. I lost it and I grabbed a hammer that was near and hit him” (at para. 22). [ 15 ] Detective Sgt. O’Donovan said that this took him completely by surprise and he did not see it coming.

He had been thinking that the murder was probably a robbery gone bad, something to do with either the delivery of drugs or the cash that the deceased would have had on hand to pay for the delivery. He was also not aware of the murder weapon – he only knew that the deceased had suffered blunt force trauma and stab wounds to the face. [ 16 ] The accused was upset, seemed embarrassed and started to cry. Detective Sgt. O’Donovan asked him what he did next, and he said that he grabbed his stuff and left. At this point, Detective Sgt. O’Donovan told the accused that he was under arrest.

They made arrangements to turn on the videotaping equipment and returned to advise the accused of his rights and take a warned statement. [ 17 ] The accused, who did not testify, is challenging the admissibility of all of the statements that he made to the detectives, beginning with his first interaction with them at Polo Park. FIRST GROUND OF APPEAL – DETENTION (

i) The Issue [ 18 ] The first ground of appeal is whether the trial judge erred in finding that the accused was not detained within s. 10(

b) of the Charter at any time prior to advising the police that he hit the deceased on the head with the hammer. The accused states that he is not arguing that the trial judge made any errors of fact or that she relied on the wrong principles of law or misinterpreted any of the applicable legal principles. The only issue is whether the trial judge erred in concluding, based on the facts, that the accused was not detained at any point prior to his admission.

This is an error in applying the law to the facts. (ii) Standard of Review [ 19 ] In a criminal matter, an error in applying the law to the facts is a question of law, and it is to be reviewed on the standard of correctness. (See R. v. Grant , 2009 SCC 32 at para. 43 , [2009] 2 S.C.R. 353; R. v. Farrah (D.) , 2011 MBCA 49 at para. 7 , 268 Man.R. (2d) 112; and R. v. Koczab (A.) , 2013 MBCA 43 at para. 16 , 294 Man.R. (2d) 24.) (iii) The Positions of the Parties The Appellant’s Position

[20] The accused acknowledges that he is not alleging either an error in the law that was applied by the trial judge or any error offact.

His appeal is raising only an error in the application of the law to the facts – that is, that, based on the facts as found by the trial judge, sheshould have found that the accused was detained, either when the police first picked him up near Polo Park to interview him after singling himout for a focussed investigation, or later, when the detectives asked him if the deceased was killed “for his stash.” [21] Further, the accused acknowledges that he is not alleging a physical detention, but rather a psychological detention. [22] The accused argues that the following facts lead to the conclusion that he was psychologically detained when he was picked upfor the interview: - he was a crack addict and had been singled out for a focussed investigation; - the police were in possession of much information implicating him in the crime that they were investigating, including: he may have been thelast person to see the deceased alive; his fingerprints were found at the crime scene; the police had information that he might have beeninvolved in an intimate relationship with the deceased; and the police used a covert surveillance team to locate him, rather than going to theresidence and leaving a message or issuing a “be on the lookout” directive; - when the officers approached him, they showed him their badges and agreed that he may have seen their guns; they took him to the PublicSafety Building rather than offering him the option of being interviewed in the police car or at another location; they did a pat-down searchbefore putting him in the police car; they took his backpack and skateboard from him and locked them in the trunk of the police car; the accusedwas transported in the back of a police car, which can be opened only from the outside; he was interviewed in the locked room, where thefurniture was bolted to the ground; and he was held for several hours and, ultimately, arrested; - the accused was not advised by the detectives that he was being interviewed regarding a murder; neither did they advise him that they hadfound his fingerprint as the scene of the murder; that they had his picture on the video surveillance camera at the apartment block; and that hewas the last person seen with the deceased prior to his death. [23] The accused argues that, in the alternative, if he was not psychologically detained when he was picked up, he was detained whenhe was asked whether the deceased was “killed for his stash” of drugs.

He argues that, at this point, he was being asked pointed questions abouthis knowledge of the murder, so that to suggest that he remained “a person of interest” belies logic. The Respondent’s Position [24] The Crown argues that the accused is not challenging the trial judge’s findings of fact or her findings regarding the credibility ofthe detectives. It argues that the trial judge accepted the testimony of the three detectives who testified that the accused was never a suspect atany time before he said that he had hit the deceased on the head with a hammer.

She accepted their testimony that the accused was only a personof interest and possible witness who, they hoped, would provide some information in their investigation. She further accepted their evidencethat, before his admission, he was free to leave at any time. [25] The Crown’s position is that the evidence supported the trial judge’s conclusions. In particular, the Crown points out that theaccused was a regular visitor to the apartment and had arrived there a long time (14 hours) before the deceased was discovered. He was no morea suspect than Mr. Bateman, the deceased’s roommate.

He was the next step in the investigation. [26] The Crown submits that a psychological detention requires a demand by the police, where the accused acquiesces or submits tothat demand and reasonably believes that the choice to do otherwise does not exist. [27] The Crown argues that, firstly, there was no demand. The trial judge accepted that the detectives made a request that the accusedaccompany them to the police station and he agreed and told them that he wanted to help. [28] The Crown’s position is that, secondly, there was no evidence that the accused felt that he had no choice but to comply.

Theaccused did not testify as to his state of mind, and the evidence from Detective Sgts. O’Donovan and Loehmer, accepted by the trial judge, wasthat the accused seemed relaxed, comfortable and forthcoming in the police car, even asking how he could help. [29] The Crown notes the factors set out in Grant at para. 44, which may be considered to determine whether there was a detention,being the circumstances of the encounter between the police and the accused, the nature of the police conduct and the characteristics andcircumstances of the accused.

In responding to those factors, it argues: - that while the accused was singled out for focussed investigation, it was not because they thought he had anything to do with the murder, butbecause he was the next step in their investigation; - that he received exactly the same treatment as Mr. Bateman, including being interviewed in the same room, and spent less time with the policethan did Mr.

Bateman; - that the accused was clearly intelligent, articulate and informed; he was a grown man (then 29 years old), had worked as a telemarketer andthere was no evidence that he was either unsophisticated or especially sensitive to the police. [30] Regarding the police contact with the accused, the Crown notes that the law states that not all contact and questioning by thepolice is a detention or requires that the person be advised of their rights. In this regard, the Crown points specifically to R. v. C.R.H., 2003MBCA 38 at para. 23, 173 Man.R. (2d) 113; R. v.

D.E.M., 2001 MBCA 110 at paras. 21-23, 156 Man.R. (2d) 231; R. v. Voteary (C.M.) (1996), (MB KB), 112 Man.R. (2d) 1 at para. 14 (Q.B.); and Grant at para. 38. [31] As regards the circumstances of the officers’ contact with the accused and the manner in which he was taken to the police stationand held there, the Crown argues that the trial judge was correct in finding that their actions were as “security or safety measures that are part ofmodern police work” (at para. 43) and in concluding that the reasonable person in contemporary society would see them that way.

It argues thatboth the case law and practical considerations support her conclusions. [32] Finally, the Crown’s position is that the officers treated the accused as a witness throughout their dealings with him, and that hewas not detained at any time before he was arrested.

(iv) The Law [33] The accused is arguing that he was psychologically detained in circumstances where there was no legal obligation to speak to thepolice. I reviewed the law regarding psychological detention, and, in particular, several Manitoba appellate decisions, in R. v. C.L.S., 2011MBQB 22 at paras. 180-93. I will not repeat that analysis (which I adopt) here, but, instead, I will go directly to the Supreme Court of Canada’sdecision in Grant.

In that case, McLachlin C.J.C. and Charron J., for the majority, stated that they were taking a fresh look at the framework forthe principles related to the definition of detention under ss. 9 and 10 of the Charter (see paras. 2-3, 24-44). They summarized their conclusionsas follows (at para. 44): In

summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical orpsychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictiverequest 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 determinewhether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty ofchoice, 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 wereproviding general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out theindividual 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; thepresence 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 ofsophistication. [34] They provided the following description or explanation of a psychological detention where there was no legal compulsion orrequirement to comply with the police demand (at para. 31): This second form of psychological detention – where no legal compulsion exists – has proven difficult to define consistently.

The question iswhether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the policedirection or demand. As held in Therens [ (SCC), [1985] 1 S.C.R. 613], this must be determined objectively, having regard toall the circumstances of the particular situation, including the conduct of the police.

As discussed in more detail below and summarized at para.44, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceivedby a reasonable person in the situation as it develops. [35] Thus, the focus of the review of the police conduct is from the perspective of a reasonable person in the situation of the accused. [36] McLachlin C.J.C. and Charron J. recognized that there would be a range of situations in which a person would come into contactwith the police, from responding to a 911 call or neighbourhood policing to an actual arrest or imprisonment.

Within that spectrum is thesituation where the police are investigating an accident or a crime. In that situation, they state (at paras. 38-39, 43): In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves askingquestions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the policefrom continuing to question the person in the pursuit of their investigation.

Section 9 of the Charter does not require that police abstain frominteracting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legalcounsel. Effective law enforcement is highly dependent on the cooperation of members of the public. The police must be able to act in a manner thatfosters this cooperation, not discourage it. However, police investigative powers are not without limits.

The notion of psychological detentionrecognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectivelyremove the individual’s choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminatehimself or herself. Where that is the case, the police are no longer entitled simply to expect cooperation from an individual. Unless, as stated

earlier, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subject with his or her s. 10(

b) rights. That the obligation arises only on detention represents part of the balance between, on the one hand, the individual rights protected by ss. 9 and 10 and enjoyed by all members of society, and on the other, the collective interest of all members of society in the ability of the police to act on their behalf to investigate and prevent crime. Whether the individual has been deprived of the right to choose simply to walk away will depend, to reiterate, on all the circumstances of the case. It will be for the trial judge to determine on all the evidence.

Deference is owed to the trial judge’s findings of fact, although application of the law to the facts is a question of law. [ 37 ] McLachlin C.J.C. and Charron J. made similar statements in R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460, a decision released together with Grant . They state (at paras. 3, 5): However, as this Court held in Mann [2004 SCC 52 , [2004] 3 S.C.R. 59 ], not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter .

Section 9 of the Charter does not dictate 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. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under s. 10 ( b ). As Iacobucci J. aptly observed, “[t]he person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’.

But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint” (para. 19). Even when an encounter clearly results in a detention, for example when the person is ultimately arrested and taken in police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction. Given the immediacy of the s. 10 (

b) obligation to inform a detainee of his or her right to counsel, it is important to determine if and when an encounter between the police and an individual effectively crystallizes in a detention. It will depend on the circumstances. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed. [ 38 ] From this, it is clear that not every interaction between the police and a member of the public will constitute a detention.

For such an interaction to constitute a detention, there are two requirements: - the first requirement is that there must be a restrictive request or demand by the police to the member of the public; and - the second requirement, where there is no legal obligation to comply with that request or demand, focusses on the state conduct in the context of the surrounding legal and factual situation and how that conduct would be perceived by a reasonable person in the situation as it developed. (v.) The Trial Judge’s Findings of Fact [ 39 ] The accused argues that the facts of this case are similar to those in R. v.

Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215 , wherein the police withheld facts from Ms Côté and told the court she was being questioned as an “important witness.” The trial judge found that Ms Côté was detained shortly after officers arrived at her residence and went on to exclude her statement due to the breach of her s. 10 rights. [ 40 ] When one reviews the facts in Côté , it is clear that they were extensive and not limited to the police withholding facts and describing the accused as an “important witness.” Further, it is clear that the full set of facts in that case is very different from those in this matter.

The trial judge in that case made his findings based on all of those facts, such that these two (withholding facts and describing the accused as an “important witness”) cannot be pulled out of the mix to support the argument that the factual finding of the trial judge in that case should be applied to this case. [ 41 ] The decision in Côté is relevant and important for what it says about appellate intervention with the factual findings of a trial judge. The questions of detention and whether the accused’s rights had been violated were not before either the Court of Appeal or the Supreme Court of Canada.

As Cromwell J., writing for the majority, stated in reviewing the decision by the Court of Appeal, “[t]he Crown conceded, by and large, that the police had committed a number of violations, and that they were serious” (at para. 35). The only issue on appeal was the admissibility of the derivative evidence (at para. 36), which was also the only issue before the Supreme Court of Canada (at para. 41). [ 42 ] Cromwell J. was highly critical of the Court of Appeal for re-characterizing the trial judge’s findings of fact regarding the conduct of the police. He stated (at paras. 51-52): ....

The Court of Appeal, respectfully, exceeded its role by its re-characterization of the evidence which departed from express findings by the trial judge which are not tainted by any clear and determinative error. The Court of Appeal should not have substituted its own view of the police conduct for that of the trial judge. The [Crown] spent a considerable portion of its written argument trying to persuade this Court that the trial judge’s findings about the nature of the police conduct were unreasonable. The [Crown] submits that the trial judge went too far in his criticism of the police.

More specifically, the [Crown] submits that it was unreasonable for the trial judge to conclude that the Charter violations committed by the police were flagrant without considering the dynamic and evolving nature of the situation. It also submits that the trial judge erred in failing to conclude that the police were faced with a situation of urgency that required immediate action from the patrolling officers. I would not accede to these attempts to reverse the trial judge’s findings of fact. A trial judge’s findings of fact on a voir dire concerning the admissibility of evidence must be

respected unless they are tainted by clear and determinative error. The trial judge made clear findings that from virtually the moment that the police arrived at the appellant’s residence, they believed that she was a suspect; he concluded that the police knew that the person they were meeting was susceptible to being involved in the death of Mr. Hogue. I also note that the trial judge made a clear finding that the officers were not exercising their investigative powers arising from the 9-1-1 call when they came to Ms. Côté’s house.

Rather, he found that their purpose was to conduct a criminal investigation by speaking with an obvious suspect. The trial judge made these clear findings of fact based on his first-hand assessment of the officers’ credibility by observing their testimony in court.

There is no basis disclosed for interfering with the trial judge’s numerous conclusions with respect to the police conduct and I thus decline to interfere with his findings. [ 43 ] While these statements refer to facts related to the determination of the admissibility of evidence, rather than to the determination of whether there had been a breach, the issue is the degree of deference to be accorded by a court of appeal to a trial judge’s findings of fact.

For that, the test is the same, whether those facts relate to the question of a breach or of the exclusion of evidence, and it is a very high threshold to meet before a court of appeal can interfere.

Cromwell J. used the words “clear and determinative error” (at para. 51) to describe the level of deference and the test for appellate intervention. [ 44 ] In this case, the trial judge made several findings and inferences of fact regarding the police conduct: - all that the detectives knew was that the accused was a friend, and possibly a boyfriend, of the deceased and he had been at the apartment the day before the deceased’s body was found (at para. 36); - the detectives had no grounds to suspect or arrest the accused at any point before he confessed to hitting the deceased with the hammer, and he was free to leave at any time up until that confession (at paras. 36-37); - given the information that they had about the accused, they wanted to talk to him because they hoped that he could “take them to the next step” in the investigation (at para. 41); - their manner of approaching him was respectful, casual, and very low key (at para. 41); - the officers asked if he would help them out with the investigation and he readily agreed; they thought he seemed eager to help (at para. 41); - the factors that the defence relies on to suggest detention are the reality of police work – a pat down search for officer safety has long been recognized by the courts to be a reasonable action by police that is non-intrusive, and does not amount to a search; it could be considered

an act of taking control of an individual by the police but, as the accused had consented to going with the officers, it would not be a reasonable perception of this action that he was then unable to walk away from the officers (at para. 42); - the same is true of the elements of being transported in a locked car, having his backpack and skateboard taken and being placed in a stark, locked interview room – these circumstances are all security or safety measures that are part of modern police work and a reasonable person living in any Canadian community today would recognize this (at para. 43); - as to the accused’s personal circumstances, the accused was an adult, was very comfortable with the officers and was willing to help them – nothing in his actions en route to the Public Safety Building or while talking to the officers in the interview room suggested otherwise (at para. 45). [ 45 ] These are all findings and inferences of fact by the trial judge that are entitled to the very high degree of deference on appeal that was described by Cromwell J. in Côté . (vi.) Psychological Detention in This Case [ 46 ] A psychological detention first requires “a restrictive request or demand” by the police.

The accused argues that he was detained from his first contact with the officers. In this case, as found by the trial judge, the officers asked the accused if he could help them out with their investigation and he readily agreed. She accepted their evidence that he seemed eager to help.

Given these uncontested facts, it is difficult to see where there was any restrictive request or demand by the police, as is required to have a detention. [ 47 ] It must be remembered that the accused did not testify, so he did not explain his subjective reaction to his contact with the police or the effect that it had on him either initially or as it evolved.

It is extremely helpful to hear from the accused in that regard, but that testimony is not essential to determining whether or not there was a psychological detention because that determination is, in the end, an objective one – being whether a reasonable person in the situation would conclude by reason of the state conduct that he or she had no choice but to comply. (See, for example, R. v. Dolynchuk (E.N.) , 2004 MBCA 45 at para. 20 , 184 Man.R. (2d) 71 ; and Grant at paras. 31, 44 .) [ 48 ] The accused’s alternative position is that what followed that initial contact crystallized into a detention.

The accused argues that the facts, as set out in para. 22 herein, made it clear that the accused was a suspect and not just a “person of interest” when the officers first approached him to help them with their investigation. The finding that the accused was a person of interest and not a suspect is a finding or inference of fact, and, as such, it is entitled to significant deference.

This finding is supported by the evidence and there is no basis upon which to find that the trial judge committed any palpable and overriding error in coming to that conclusion. [ 49 ] The accused argues that the circumstances met the Grant standard for psychological detention, being that a reasonable person in those circumstances would conclude that he or she had been deprived by the state of the liberty of choice prior to making his statement.

However, the facts on which the accused relies to support his position, as set out in para. 22 herein, which were all known to the trial judge and referenced in her decision, leave out the important factual findings and inferences of the trial judge set out in para. 44 herein.

Not only are the factual findings not challenged by the accused, but both the factual findings and inferences are based on the evidence and clearly reasonable. [ 50 ] When one takes into account all of the facts and circumstances, including the facts and factual inferences as found by the trial judge, it is clear that the trial judge was correct in finding that the accused was not detained for the purposes of the Charter at the time that he was asked to help the police with their investigation, with the result that she committed no error of law in so finding. Further, the interview did

not crystallize into a detention at any time prior to the detectives asking the accused about the motive for the murder.

As recognized in Grant and Suberu , the police have an obligation to investigate crimes, and not every interaction with the police will amount to a detention, even when a person is under investigation for, or related to, criminal activity, is asked questions, or is physically delayed by contact with the police. [ 51 ] The accused argues, in the alternative, that the detention crystallized when he was asked during the interview about the motive for the murder, i.e. , whether the deceased was killed “for his stash.” He argues that, at this point, the detectives were asking him pointed questions about his knowledge of the murder, so it belies logic to state that he was still only a “person of interest.” [ 52 ] The fact that the police ask pointed questions about the crime does not necessarily turn a person of interest into a suspect.

As stated in Grant , the fact that, unbeknownst to them, the police are questioning a person implicated in the crime does not preclude them from continuing the questioning in furtherance of the investigation because the Charter does not require that the police abstain from interacting with members of the public ( see Grant at para. 38 ). [ 53 ] In this case, the purpose of the interview was to find out whether the accused could help the police solve the murder.

In order to do so, it was necessary for the police to ask pointed questions about the murder to see if the accused had any helpful insights or information. When the accused disclosed facts to the detectives that led them to conclude that the deceased was a mid-level cocaine dealer, it was reasonable, due to the high level of crime related to drug trafficking, for them to ask whether he was killed for the drugs. Given the accused’s friendship with the deceased, this question did not implicate the accused in the killing, and the police were not thinking that it did.

When the accused said no, the next question was whether he knew why the deceased was killed.

The accused responded that he woke up and the deceased was performing a sex act, so the detective asked, “What?” Again, this was not an unreasonable question arising from the accused’s answer, particularly because the answer did not suggest that the sex act involved the accused. [ 54 ] The detectives stated, and the trial judge accepted, that the answer to this question – that the deceased was giving the accused a blow job, so he hit him with a hammer – was unexpected, as they had been thinking of drugs and robbery gone bad, not sex. Detective Sgt.

O’Donovan said that this answer was a surprise and he had not seen it coming. The trial judge took all of this into account in concluding that the accused was not detained throughout the entire interview. Given these facts and circumstances, I am satisfied that the trial judge was correct in so finding. [ 55 ] For these reasons, I would find that the trial judge did not commit any error of law, fact or mixed law and fact in concluding that the accused was not detained at any time prior to his statement that he hit the deceased on the head with a hammer.

SECOND GROUND OF APPEAL – EXCLUSION OF EVIDENCE [ 56 ] The argument that the trial judge erred in failing to exclude the accused’s statement from evidence is premised on a finding that he was detained at the time of making the statement. Given my finding that there was no detention at the time of the statements at issue, it is not necessary to consider this ground of appeal.

THIRD GROUND OF APPEAL – SENTENCE [ 57 ] While this ground of appeal relates to the granting of credit for pre-sentence custody, it does not engage the provisions of the amendments to the Criminal Code in the Truth in Sentencing Act , which limit the amount of credit that can be granted for pre-sentence custody.

Those provisions came into effect on February 22, 2010, while this offence was committed and the accused was charged prior to that time. [ 58 ] The accused has accepted that the trial judge was acting within her discretion when she stated that the accused’s access to programming while on pre-sentence remand would give rise to a general rule of credit on the basis of 1.5:1. He has appealed the trial judge’s determination that he should receive less than that.

The accused had served 42 and one-half months of pre-sentence custody, which would equate to 73 and three-quarter months if the credit were calculated at 1.5:1. The trial judge reduced this, giving him credit for 52 months. [ 59 ] The trial judge found that the reduction from 1.5:1 credit was justified due to the accused’s bad conduct while in custody, as contained in the pre-sentence report. This court accepted, in R. v.

Traverse (L.) et al. , 2008 MBCA 110 at paras. 80-84 , 231 Man.R. (2d) 123 , that bad behaviour while in custody affects the likelihood of early release and can be considered by a judge in assessing the credit to be given for pre-sentence custody. [ 60 ] The accused had contested many of the allegations of bad behaviour, so there was a contested sentence hearing, and the Crown called two witnesses to testify in that regard. [ 61 ] In her reasons for sentence, the trial judge found that, between November 2009 and September 2012, the accused was involved in 17 incidents where institutional disciplinary action was taken against him.

She noted that these incidents ranged from cautions regarding inappropriate comments involving female staff to formal disciplinary convictions, including five for theft and fraudulent canteen activity, as well as uttering threats, damaging institutional property and possession of “homebrew” (at para. 31). She also noted that the accused had been released on bail but was returned to custody when he failed to follow the conditions of his release. [ 62 ] Taking all of this into account, she determined that a further reduction in credit was appropriate.

This is an aspect of sentencing, and sentencing decisions are entitled to considerable deference, unless there is an error of law or the sentence is unfit. I am not satisfied that there was either an error of law or that the sentence was unfit. [ 63 ] Defence counsel argued that the trial judge erred because the reduction from 1.5:1 to the credit of 52 months was arbitrary and unexplained. Once a range of sentence is chosen, the sentence within that range is almost always “arbitrary” because there is no “tariff” or method of calculating an exact penalty.

Setting that sentence within the appropriate range is part of the discretion of the trial judge. In this case, the trial judge had explained her reasons for the range of sentence, i.e. , for a credit of less than 1.5:1, and has exercised her discretion within that range reasonably. I would find that she has committed no error in determining the credit for pre-sentence custody, and I would dismiss the appeal from both the credit given and the resulting sentence imposed by the trial judge. CONCLUSION [ 64 ] For the reasons set out herein, I would dismiss both the appeal from conviction and the appeal from sentence.

J.A. I agree: J.A. I agree: J.A.