R. v. Richard (D.R.) et al., 2013 MBCA 105

Citation: R. v. Richard (D.R.) et al., 2013 MBCA 105 Date: 20131128 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Docket: AR 12-30-07718 ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) ) M. P. Cook and Respondent ) J. L. Ostapiw - and - ) for the Appellant ) R. L. Cushnie DONALD RAYMOND RICHARD ) ) (Accused) Appellant ) L. J. W. Tailleur - and - ) for the Appellant Docket: AR 12-30-07720 ) D. R. Richard BETWEEN : ) ) HER MAJESTY THE QUEEN ) R. T. Amy ) for the Appellant Respondent ) M. L. Sanford - and - ) ) MELODY LYNN SANFORD ) N.

M. Cutler ) for the Respondent (Accused) Appellant ) - and - ) Docket: AR 12-30-07721 ) Appeals heard: BETWEEN : ) December 19, 2012 and ) September 11, 2013 HER MAJESTY THE QUEEN ) ) Respondent ) Judgment delivered: - and - ) November 28, 2013 ) RITA LOUISE CUSHNIE ) ) (Accused) Appellant ) TABLE OF CONTENTS Page I. INTRODUCTION....................................................................... 4 II. FACTS........................................................................................ 5

i) The Murder Agreement: “The Coffee Plan”...................... 5 ii) The Murder: September 12, 2007..................................... 6 iii) Confirmatory Evidence of the Cooperating Witness......... 7 III. DONALD RICHARD................................................................. 8 1. Did the trial judge err in finding Donald’s video interviews to be admissible?............................................................................. 9

a) Voluntariness.................................................................... 9

b) The Charter s. 10 ( b ).......................................................... 16 2. Did the trial judge err in refusing Donald’s motion for a directed verdict?............................................................................................... 24 3. Did the trial judge err in instructing the jury regarding the contradictions in Timothy’s evidence?.......................................................... 24 4. Was the verdict contrary to law and against the weight of the evidence?............................................................................................... 24 5.

Did the trial judge err in failing to give special instructions to the jury with respect to Timothy’s evidence?...................................... 33 6. Did the trial judge err in refusing to poll the jury?................. 37 IV. MELODY SANFORD................................................................ 41 1. Did the trial judge err in holding that Sanford’s video interview was not taken in circumstances that breached her s. 10(

b) right to counsel? 42

a) Informational Duty – Ability to Comprehend................... 48

b) Implementational Duty – Sufficiency of Advice................ 51

c) Implementational Duty – Failure to Offer a Second Opportunity to Contact Counsel................................................................ 52 2. Did the trial judge improperly admit the evidence of the bank card? 54

V. RITA CUSHNIE......................................................................... 61 VI. THE FRESH EVIDENCE MOTION.......................................... 62 1. Facts at Trial.......................................................................... 62 2. Background of the Fresh Evidence Motion............................ 66 3. The Fresh Evidence................................................................ 67 4. Issues..................................................................................... 68

i) Do the notations constitute evidence?............................... 68 ii) Can the court consider the notations in light of the jury secrecy rule?.......................................................................................... 70 iii) Are the notations admissible as fresh evidence with respect to each of the accused?...................................................................... 76 VII.

DECISION.................................................................................. 81 CAMERON J.A. [ 1 ] This is an appeal by each accused from convictions for conspiracy to commit murder and first degree murder. I. INTRODUCTION [ 2 ] On September 14, 2007 Ivan Radocaj (also known as John) (the deceased) was discovered dead in his residence in Inwood, Manitoba. He had suffered a severe beating.

The pathologist testified that the cause of death was blunt force head trauma caused by multiple powerful impacts to the head, very extensive fracturing of the skull and significant tearing and bruising of the underlying brain. [ 3 ] A total of six people were charged in connection with the deceased’s death. One of the accused, Christopher Houle (Houle), entered a guilty plea to the lesser charge of second degree murder. Another accused, Daniel Richard (Daniel), successfully applied to have his charges severed.

Later, he also entered a guilty plea to second degree murder. [ 4 ] A third accused, Timothy Richard (Timothy), entered into an immunity agreement and testified on behalf of the Crown. [ 5 ] The three remaining accused, Donald Richard (Donald), Melody Sanford (Sanford) and Rita Cushnie (Cushnie) were tried jointly before a judge and jury and convicted of conspiracy to commit murder and first degree murder. Since the grounds of appeal for each accused involve different considerations, they will, with one exception, be dealt with separately in this decision.

As Donald and Sanford both raise the issue of whether the trial judge should have polled the jury, they will be dealt with together regarding that issue. [ 6 ] For the reasons that follow, I would dismiss the appeals with respect to Donald and Sanford. However, I would allow Cushnie’s appeal and order a new trial because fresh evidence admitted on appeal undermines the reliability of the verdicts against her. During deliberations, the jury inadvertently received inadmissible information regarding Cushnie that should have been edited out of transcripts. II. FACTS

[7] In order to understand the nature of the case against the accused, it is important to have an overall understanding ofthe relationships between the parties and the allegations against them. [8] The first party is Sanford. In 2007, Sanford married the deceased. The two of them lived just outside of Inwood, asmall town in Manitoba.

i) The Murder Agreement: “The Coffee Plan” [9] Shortly after marrying the deceased, Sanford left him and moved in with her friend Cushnie. The Crown alleges that,after Sanford and the deceased separated, she told people that she wanted the deceased killed and offered money for someone to killhim. Further, it alleges that, in furtherance of this desire, Sanford and Cushnie recruited and encouraged Cushnie’s son Donald to kill thedeceased in return for $10,000. In turn, Donald recruited Timothy, Daniel and Houle to help him kill the deceased. [10] Timothy was the main witness for the Crown.

Briefly, Timothy testified that he overheard and was part of meetingsthat were held between the various parties to discuss plans to kill the deceased. Pursuant to this objective, surreptitious visits were madeto the deceased’s residence in Inwood by Donald and Timothy, and sometimes, Daniel. Timothy testified that a plan was made wherebySanford would distract the deceased by taking him out for coffee in order to get him away from his residence, during which time Donaldand the other men would break in to his house, await his return, and kill him.

This plan was known as the “coffee plan.” ii) The Murder: September 12, 2007 [11] Timothy testified that, on September 12, 2007, the plan came to fruition. That evening, Sanford ensured the deceasedwas away from his residence by going out for dinner with him to a nearby small town. Donald picked up Timothy, Daniel and Houleand drove them from Winnipeg to Inwood. Timothy said that, during the drive to Inwood, Donald told the men that he had to callCushnie to tell her to call Sanford to tell her to delay the deceased’s return home and that he observed Donald make a call on his cellphone.

When they arrived at the deceased’s residence, Timothy stayed outside in the vehicle while the other three disguised themselvesand broke into the house bearing crowbars and a metal pipe. When the deceased returned home, Donald, Daniel and Houle beat him todeath. Although Timothy did not witness the beating, he said that Donald told him about it later. [12] Timothy testified that, after the killing, Donald drove them to a location where the weapons were cleaned and throwninto the bush. Next, Donald drove to Cushnie’s residence, where Sanford thanked Donald and gave him $200.

She told Donald that shewould have the rest (of the money) for him when she collected the life insurance. The gloves and bandanas that were used as disguisesat the time of the killing were given to Cushnie who said that she and Sanford would burn them. Timothy testified that Cushnie huggedDonald and said, “Thanks for being a bad boy.” The men then returned to Winnipeg. iii) Confirmatory Evidence of the Cooperating Witness [13] Although other evidence was called by the Crown, the evidence provided by Timothy was crucial.

It was the subject oftwo unsavory witness warnings by the trial judge, as provided for in Vetrovec v. The Queen, (SCC), [1982] 1 S.C.R811. Not surprisingly, the evidence given by Timothy in direct examination was significantly diminished during cross-examination. Theeffect of the diminishment will be discussed later. [14] Aside from Timothy’s evidence, Donald gave two video interviews to police, which were the subject of a voir dire andheld to be admissible. Only the second interview (a confession) was tendered as evidence by the Crown.

In addition, Donald’s formercommon-law wife testified that he confessed the incident to her, describing it in detail. As well, police intercepted a telephoneconversation wherein Donald spoke about the incident to Timothy. [15] Sanford also gave an inculpatory video interview, which was held to be admissible and tendered as evidence. Additionally, a relative of Sanford testified that Sanford told her and her friend that she was prepared to pay money to have the deceasedkilled. [16] The situation regarding Cushnie was different.

Aside from cell phone records, which could not in themselves proveCushnie’s involvement in the conspiracy or murder, the only other significant evidence of her involvement was that provided byTimothy. III. DONALD RICHARD [17] Donald appeals his convictions on a number of grounds. First, he contests the trial judge’s finding that the videotapesof his police interviews were admissible. He contends that they were:

a) involuntary; and,

b) taken in breach of s. 10(

b) of the CanadianCharter of Rights and Freedoms (the Charter). Second, he argues that the trial judge erred in refusing his request for a directed verdictrespecting the charge of conspiracy to commit murder. Third, he asserts that the trial judge erred in her instruction to the jury withrespect to Timothy’s evidence regarding the conspiracy and the intent required for first degree murder. Fourth, he maintains that theverdicts were contrary to the law and against the weight of the evidence.

Fifth, he argues that the trial judge erred in failing to givespecial instructions to the jury with respect to Timothy’s evidence. Finally, he argues that the trial judge erred in denying his request topoll the jury. 1. Did the trial judge err in finding Donald’s video interviews to be admissible?

a) Voluntariness Background and Issue

[ 18 ] Donald contends that a number of factors surrounding his police interviews render them involuntary. [ 19 ] The evidence revealed that, at the time of his arrest, Donald was provided his right to counsel and police caution. Prior to his first video interview, he requested to speak with counsel and police facilitated his request. [ 20 ] Near the outset of the first interview with Corporal Sells (Sells), Donald complained that it was cold in the cell where he had been lodged. He also said that he was on anti-anxiety medication, which he had already taken that day.

He advised Sells that he was a heavy smoker and asked for a cigarette, which he was given. In fact, during the course of both of his video interviews Donald was periodically provided with cigarettes. [ 21 ] Approximately three hours into his first interview, at Donald’s request, he was allowed to contact counsel again. After contacting counsel, Donald told Sells that he was satisfied with the discussion. [ 22 ] During the first video interview, Donald repeatedly asserted his right to silence. Sells consistently responded to this assertion by confirming that Donald had that right.

Nonetheless, despite his assertions of his right to silence, there were also times during the interview when Donald indicated that he thought it would be better for him to cooperate. For example, at one point in the interview he said to Sells, “I probably should have just listened to the lawyer in the first place [who he had earlier stated had told him not to speak to police]. Then again, I do want it out, I do want it to be over.” [ 23 ] Also during the first interview with Sells, Donald often asked for a deal or leniency in return for the provision of information.

In response to Donald’s offers, Sells repeatedly told Donald that he could not make any promises to him, that Donald was charged with first degree murder and that the offence was very serious. [ 24 ] The first interview continued until later in the evening, at which time Donald was placed in a cell to spend the night. At one point, he complained that the cell was cold and he was offered a blanket. The next morning, he was offered food. [ 25 ] Donald’s second video interview with Sells commenced the next day.

At the start of the interview, Donald complained about the cold cell, stated that he had been offered food, but had no appetite and that he had not slept well. He asked for his medication and was told that he would likely receive it in a couple of hours when he was booked into the Remand Center. He was provided with a cigarette. [ 26 ] Within minutes of the commencement of the second interview, upon learning that Timothy had provided a statement to police, Donald agreed to cooperate with police. The second interview included many inculpatory admissions.

Positions of the Parties [ 27 ] Donald argues that a combination of the following factors should have led the trial judge to conclude that his interviews were involuntary: • Sells continued questioning him despite the fact that, on a number of occasions during the first interview, Donald said he did not want to talk to police about the incident; • he had been held in a cold cell overnight and the interview room was warm; • he did not have his anti-anxiety medication on the day of the second interview; • he did not sleep well the prior night and could not eat on the morning of the second interview; • cigarettes were progressively given to him as the interviews unfolded, which he urges the court to find were an enticement to cooperate. [ 28 ] Donald maintains that the continued questioning by Sells, in spite of Donald’s repeated assertion of his right to silence, resulted in his admissions being involuntary.

In support of his position, Donald relies on the following passage in R. v. Singh , 2007 SCC 48 , [2007] 3 S.C.R. 405 (at para. 53 ): …. In some circumstances, the evidence will support a finding that continued questioning by the police in the face of the accused’s repeated assertions of the right to silence denied the accused a meaningful choice whether to speak or to remain silent … …. [ 29 ] He also relies on the case of R. v.

Fitzgerald , 2009 BCSC 1599 , 71 C.R. (6th) 183 , wherein Williams J., applying Singh , held a statement to be inadmissible in circumstances where the accused repeatedly asserted her right to remain silent, but police persisted in questioning her. [ 30 ] Finally, Donald argues that the environment surrounding the interviews caused by the continued questioning by Sells despite Donald’s assertions of his right to silence was exacerbated by the oppressive conditions created by police that I earlier outlined, to such an extent that any statements that he made can be inferred to be involuntary. [ 31 ] The Crown underscores that police interrogation is important in the investigation of crime.

Furthermore, in R. v. Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3 , the Supreme Court of Canada quoted with approval the following passage in R. v. Rennie (1981), 74 Cr. App. R. 207 (at p. 212) (C.A.) regarding the position of a person being interrogated (at para. 57):

…. .… There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession. The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.

The Crown maintains that there is no evidence of a quid pro quo in this case. [ 32 ] Further, the Crown asserts that the trial judge watched the video interviews and considered all of the relevant evidence and that she made no error in her determination that the interviews were voluntary. Analysis [ 33 ] If a trial court properly considers all of the relevant circumstances, a finding of voluntariness is essentially a factual one and should only be overturned on the basis of palpable and overriding error that affected the trial judge’s assessment of the facts ( see Oickle at para. 71 ).

A disagreement with the trial judge regarding the weight to be given to various pieces of evidence is not grounds to reverse a finding on voluntariness ( see Oickle at para. 22 ). Where a trial judge considers all the relevant circumstances and properly applies the law, deference is owed to the trial judge’s determination on the voluntariness of the statement at issue. See R. v.

Spencer , 2007 SCC 11 at paras. 16-17 , [2007] 1 S.C.R. 500 . [ 34 ] In Singh , the Supreme Court of Canada comprehensively dealt with the scope of the accused’s right to silence pursuant to s. 7 of the Charter and its interaction with the common law confessions rule adopted in Oickle . In that case, the accused was charged with murder. He was provided an opportunity to speak to counsel. During the course of two subsequent police interviews, he repeatedly stated (18 times) that he did not want to make a statement.

In response, the police either confirmed his right to be silent or persisted in laying out facts and evidence against him. During the course of the interview, the accused made some incriminating statements. In upholding the admissibility of those statements, the majority of the court emphasized that, in such a situation, the common law confessions rule afforded the same, if not more, protection than the right to silence (see para. 25).

The court further noted that, in ruling the statements voluntary, the trial judge addressed the issue of whether the accused’s right to talk, or not, was undermined or overborne by the nature of the questioning (see paras. 50-53). [ 35 ] In this case, the trial judge considered the issue of voluntariness. She noted that in Oickle , the Supreme Court of Canada recognized that, if police create conditions that are stressful enough, it could lead to a confession by an accused simply to escape those conditions.

She understood that potentially oppressive conditions recognized in Oickle such as deprivation of food, clothing, water, sleep, medical attention, denial of access to counsel and/or excessively aggressive, intimidating questions for a prolonged period of time could render a statement involuntary . [ 36 ] After considering all of the evidence, including having viewed the video interviews, the trial judge concluded that “there was nothing in the circumstances of [Donald’s] almost 24 hours in custody, nor in [Sells’] actions, that in any way could be said to be inhumane or otherwise oppressive.” She found that the cold cell amounted to a minor discomfort, cigarettes had not been used as a reward or punishment for cooperation, and she did not observe Donald to be anxious or feeling any negative effect from not having his medication. [ 37 ] The trial judge was in the best position to determine the voluntariness of Donald’s video interviews.

She heard the evidence of Sells, watched the video interviews and read the corresponding transcripts. Counsel has not shown any basis upon which it could be concluded that the trial judge made any palpable and overriding error which affected her assessment of the facts. Rather, it appears that this court is being asked to reweigh the evidence and make inferences that the trial judge rejected. Such an exercise is contrary to the standard of deference to be applied by this court. [ 38 ] Furthermore, contrary to Donald’s contention, there is no basis in the evidence to make findings similar to those in Fitzgerald .

In Fitzgerald , the trial judge specifically found that police made disparaging comments about the worthiness of the advice the accused received from her lawyer. Additionally, the court held that the officer’s persistence was so relentless that the accused’s right to choose whether to cooperate or not was vanquished.

A review of the transcripts of the interviews in this case shows that, while police continued to question Donald, they repeatedly affirmed to him that he had the right not to speak with them. [ 39 ] Therefore, in light of the above, I would find that the trial judge committed no error in finding that Donald’s statements were voluntary. As a result, there is no reason to interfere with the decision of the trial judge in this regard, and I would decline to do so.

b) The Charter, s. 10(

b) Background and Issue [ 40 ] Briefly, the facts relevant to this issue are that, during the course of his first interview with Donald, Sells progressively revealed evidence that police had gathered implicating him in the murder. This evidence included intercepted conversations between Timothy and Donald, wherein Donald admitted to the murder and the fact that Donald’s common-law wife had provided a statement to the police detailing Donald’s confessions to her about the murder. The next day, at the commencement of the second interview with Sells, Donald was told that Timothy had provided a police statement respecting the murder. After hearing this revelation, Donald

immediately agreed to speak with police about the incident. [ 41 ] Donald contends that the progressive revelation of evidence constituted a “change in circumstances” such that he should have been readvised of his right to counsel and provided with a further opportunity to do so prior to his second interview with Sells. [ 42 ] The trial judge held that Donald’s right to counsel as provided for in s. 10(

b) of the Charter was not violated. She held that, on the facts of this case, the progressive revelation of information implicating him did not constitute a change in circumstances warranting the need for police to afford Donald the opportunity to reconsult counsel. Positions of the Parties [ 43 ] In support of his position that he should have been readvised of his s. 10(

b) Charter right, Donald relies on R. v. Sinclair , 2010 SCC 35 , [2010] 2 S.C.R. 310 . In that case, the Supreme Court of Canada reviewed jurisprudence concerning situations where, despite the fact that an accused has already exercised his right to counsel, police must allow a further reasonable opportunity to consult counsel. The majority of the court held (at para. 54): The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed.

Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10 ( b )’s purpose of providing the detainee with advice in the new or emergent situation. [ 44 ] He states that the progressive unveiling of evidence constituted an objectively observable change of circumstance. [ 45 ] The Crown acknowledges that sometimes developments occur requiring a second consultation with counsel where, in new circumstances, the original advice may no longer be adequate.

It also agrees that police revealed evidence in their possession throughout the course of the interviews with Donald. However, the Crown maintains that the revelation of evidence did not amount to a material change as contemplated in Sinclair . [ 46 ] The Crown notes that, in Sinclair , the majority held that the chief purpose of s. 10(

b) of the Charter is to ensure a detainee is aware of his or her right to remain silent and how to exercise it. The Crown maintains that Donald’s repetition of the legal advice he had received to the effect that he had the right to choose whether to cooperate with police, or not, and his assertion of his right to silence evidenced his awareness of his rights and supported the conclusion that he was not required to be provided with a further opportunity to consult counsel. Analysis [ 47 ]

Section 10(

b) of the Charter provides: 10. Everyone has the right on arrest or detention …. (

b) to retain and instruct counsel without delay and to be informed of that right; … …. [ 48 ] The standard of review to be applied to a Charter finding where the accused is appealing a conviction was considered by this court in R. v. Farrah (D.) , 2011 MBCA 49 , 268 Man.R. (2d) 112 . In that case, Chartier J.A. (as he then was) reviewed the several steps and related standards of appellate review of a trial judge’s determination of a Charter issue. First, the court reviews the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application.

The standard of review is correctness. Next, the evidentiary foundation forming the basis of the judge’s decision is reviewed to see if there was an error. At this stage, deference is applied and, absent palpable and overriding error, the facts as found by the judge should not be disturbed. The appellate court then examines the application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfy the legal test.

In criminal law, the standard at this stage is correctness. [ 49 ] The Supreme Court of Canada’s decision in Sinclair was released as the main decision in a trilogy of cases dealing with the right to counsel. [1] In Sinclair , the accused was arrested for murder. He was given an opportunity to speak with counsel, which he exercised by speaking with a lawyer for three minutes. He indicated he was satisfied with the call. Three hours later, police contacted the same lawyer to find out if he intended to go to the police station. The lawyer declined to go, but spoke to the accused again for about three minutes.

The police continued to interview the accused who asserted his right to remain silent on a number of occasions and requested to speak to counsel. The police advised the accused that they were of the view that he had already exercised his right to counsel and that he did not have the right to have a lawyer present during questioning. The police then proceeded to reveal various pieces of evidence against the accused leading him to make incriminating statements. [ 50 ] The issue in Sinclair was whether s. 10(

b) of the Charter mandated the presence of counsel throughout a police investigation. In holding that it did not, McLachlin C.J.C. and Charron J., writing on behalf of the majority, took the opportunity to

engage in a broad review of the jurisprudence dealing with the right to counsel. They found that, in most cases, an initial warningcoupled with a reasonable opportunity to consult counsel when the detainee invokes the right satisfies s. 10(

b) of the Charter (see para.47). Generally, a subsequent request to consult counsel, without more, is not sufficient to re-trigger the s. 10(

b) right. However, thecourt reinforced that police must give a detainee an additional opportunity to receive advice from counsel when additional developmentsin the course of the investigation make it necessary to serve the purpose underlying s. 10(b) (see paras. 47-50). They described thepurpose of s. 10(

b) as (at para. 26): The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but,equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, (SCC), [1987] 1S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation ordecline to do so is free and informed.

Section 10(

b) does not guarantee that the detainee’s decision is wise; nor does it guard againstsubjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevantto that choice. [emphasis added] [51] McLachlin C.J.C. and Charron J. proceeded to provide examples of situations where courts have found it necessary forpolice to provide an additional opportunity to consult counsel (at paras. 50-52), such as:

a) investigations where new or non-routine procedures involving the detainee are to be used. See R. v. Ross, (SCC),[1989] 1 S.C.R. 3;

b) an investigation that takes a new and more serious turn as events unfold which may make the initial advice no longer adequate,such as when the nature of the charges change. See R. v. Evans, (SCC), [1991] 1 S.C.R. 869 and R. v. Black, (SCC), [1989] 2 S.C.R. 138; and,

c) situations where there is evidence to indicate that a detainee who previously waived his right to counsel may not have understoodthe right. See R. v.

Burlingham, (SCC), [1995] 2 S.C.R. 206. [52] While the majority acknowledged that the above categories were not closed, it held that, in order to determine whether afurther opportunity to consult counsel is necessary, the change in circumstances must be objectively observable and “necessary to fulfills. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation” (at para. 54). [53] In this case, the trial judge found that Donald did not admit to any active role in the murder in his first interview.

Shethen made the following findings respecting both interviews: After speaking with his lawyer between 8:30 and 9:15, [the second consultation with counsel during the first interview] … Sellscontinued to present [Donald] with this evidence, including a statement from his wife. Clearly, he had to have concluded that the policehad considerable evidence against him. … Sells, in fact, had described the evidence as overwhelming. [Donald] throughout this timeshowed a fairly sophisticated understanding of the legal process, I considered him to be well in control of himself.

He was aware ofspousal privilege, he told Sells the proper role of a police investigator and he made reference to challenging a warrant to intercept hisphone calls. Quite simply, he was and as he said, acting in a self-preservation mode and, to quote him, looking out for number one. And he wanted totry to negotiate the best result for himself.

When his efforts failed, when his efforts in this regard were spurned he invoked the salvationof counsel. [54] She went on to conclude: As pointed out by Justice McLachlin, Justices McLachlin and Charron in Sinclair, the common police tactic of gradually revealingevidence does not, in itself, give rise to a renewal of

Section 10(

b) rights. In particular, in my view, it does not in this situation. Obtainingassistance in negotiating a deal is not the purpose of

Section 10(b). As the Sinclair decision states 10(

b) has two components,understanding rights and legal obligations, which is not in issue here, and obtaining advice as how to exercise those rights andobligations. [emphasis added]

[ 55 ] She held that the videos of the interviews showed that both components of s. 10 (

b) were achieved after Donald’s second consultation with counsel. [ 56 ] In her reasons, the trial judge correctly stated that the gradual revelation of inculpatory evidence by the police, without more, does not engage a change in circumstances as envisioned in Sinclair . See also the analysis of Mainella J. (as he then was) in R. v. G.D.G ., 2013 MBQB 244 at paras. 67-78 . Indeed, in Sinclair , the police used the very same method of interrogation in their effort to engage the accused in conversation. The trial judge also correctly stated that the purpose of s. 10(

b) of the Charter is to provide a detainee with legal advice respecting his or her rights, one of the most significant being the right to decide whether or not to cooperate with police in the situation that he or she is facing. She also correctly recognized the exceptions provided in Sinclair . Therefore the trial judge made no error in law. [ 57 ] Next, the trial judge reviewed the video interviews and corresponding transcripts and made findings of fact respecting Donald’s requests for counsel. She found that he was seeking further consultation for the purpose of getting a better deal.

The factual findings she made were open to her based on the evidence, and not the result of palpable and overriding error. [ 58 ] Finally, the trial judge correctly applied the legal principles to the facts. The jeopardy that Donald was facing remained the same throughout the entire interview process. He was charged with conspiracy to commit first degree murder and first degree murder. Donald clearly understood his right to remain silent throughout the entire interview process, thereby evidencing fulfillment of the purpose of s. 10(

b) of the Charter . Quite simply, the facts of this case do not fall within any exceptions or new categories that would trigger a further opportunity to consult with counsel as envisioned in Sinclair . [ 59 ] In light of the above, Donald’s contention that the police did not comply with s. 10(

b) of the Charter cannot succeed and I would deny this ground of appeal. 2. Did the trial judge err in refusing Donald’s motion for a directed verdict? 3. Did the trial judge err in instructing the jury regarding the contradictions in Timothy’s evidence? 4. Was the verdict contrary to law and against the weight of the evidence? Background and Issue [ 60 ] All of the above grounds of appeal arise from the evidence of Timothy. Donald’s arguments respecting the second and third grounds of appeal are essentially the same.

He acknowledges that in direct examination, Timothy provided testimony that supported the charge of conspiracy to commit murder and the required intent for a conviction of first degree murder. Nevertheless, he argues that when Timothy was cross-examined he recanted his testimony regarding what the parties intended to do when they went to the deceased’s house. Therefore, he maintains that the evidence given by Timothy in direct examination should not have been considered by the trial judge in the motion because of the recantation.

Correspondingly, he argues that the trial judge should have omitted it from the jury’s consideration.

As a result of these errors, Donald maintains that the verdict was contrary to law and against the weight of the evidence, the fourth ground of appeal. [ 61 ] Timothy’s evidence in direct examination respecting the plan to kill the deceased included: • descriptions of conversations between the parties wherein Sanford offered money in return for Donald, Timothy and Daniel to kill the deceased, including a meeting wherein Sanford brought photos of the deceased’s residence to assist them; additionally, Sanford told the parties that they could steal the deceased’s goods and money; • evidence that in the days preceding the incident, Donald, Daniel and Timothy made a number of trips to the deceased’s residence; • evidence that Donald told Timothy that there was a plan described as “the coffee plan” wherein Sanford would distract the deceased and Donald, Timothy, Daniel and Houle would break into the deceased’s residence and kill him upon his return; • Timothy’s testimony that on the day of the incident he confirmed with Donald that the “coffee plan” was on; • that Donald picked up the parties and drove them to the deceased’s residence, and, on the way, Donald said that he was calling Cushnie to tell her to contact Sanford to tell her to delay the deceased; and • that when Donald, Daniel and Houle entered the residence, they all had weapons. [ 62 ] Also, in direct examination, Timothy testified that, sometime after he and Donald were arrested, he saw Donald at the Remand Centre.

At that time, Donald said to him, “We’ll just say it was a break and enter gone bad.” [ 63 ] In cross-examination, Timothy’s testimony regarding the plan was diminished. Specifically, Donald relies on the following passages in Timothy’s cross-examination to assert that there was no plan to kill the deceased: Q Now, you told the jury that there was a plan at one point, that you became aware of, that [the deceased] would be lured out of the house for coffee, correct?

A Yes. Q And you knew about that plan. A Yes. Q Now, you’ve had some problems with your memory in this case, haven’t you? A Yes. Q One of the things you told the jury was that plan, the coffee plan, had to do with killing and that Donald … had agreed a couple days earlier to go along with a plan to kill. Do you remember saying that earlier? A Yes. Q Okay. But if you think about it, the coffee plan, the one Donald … agreed to and the one that you were brought into was to go and do a break and enter, wasn’t it? A I can’t recall. Q Okay.

I’m going to suggest to you it was a break and enter and, at most, maybe to beat him up, but primarily it was to do a break and enter. That was the plan, wasn’t it? A Yes. Q And you knew about that because on September the 12th, you called Donald … and asked him, This coffee plan thing is going down tonight, isn’t it? You made that call to him, didn’t you? A Yes. Q Okay. And just to refresh your memory, this thing about a freezer, the story about the freezer, if you think back, that was the story Donald told his wife, …, to cover up you guys going out to do the break and enter, wasn’t it? A Yes.

Q In fact, when you were on your way up there, you knew you were on the coffee plan, right? A Yes. Q And you also knew that you had no -- there was no talk about killing at all on that whole trip; is that correct?

A Yes. Q And you, yourself, had no idea that anything bad was going to happen to [the deceased]; isn’t that correct? A Yes. [64] Timothy was not re-examined by the Crown. [65] At the close of the Crown’s case, Donald’s counsel (not the same counsel as in this appeal) made a motion for adirected verdict with respect to the conspiracy charge.

It was his position that the testimony provided by Timothy in cross-examinationwas the only evidence that the court could accept and that the jury could not consider Timothy’s evidence in direct examination becausethe inconsistency rendered that evidence “abandoned” and “no longer evidence.” He also encouraged the court to consider portions ofDonald’s second video interview wherein Donald repeated that, despite the fact that Sanford wanted the deceased killed, the plan wasonly to do a break and enter, but, at the same time, to be prepared (with weapons) to beat the deceased up if he arrived home while theywere there. [66] The trial judge denied the motion on the basis that when Timothy’s evidence was considered in its entirety, there wassome evidence before the jury upon which it could reasonably find Donald guilty.

She also stated that, when Donald’s second videointerview was considered in its entirety, there was sufficient evidence that would allow the jury to conclude that some of his commentsconstituted an acknowledgment of the plan to kill the deceased. Positions of the Parties [67] Donald asserts that the trial judge erred in considering the evidence Timothy gave in direct examination in herdetermination of the directed verdict motion.

Similarly, he contends that she erred in her instruction to the jury when, after reviewing allof Timothy’s evidence, she stated: Now, it is up to you to decide what to make of this evidence, what to accept, what to reject, how much or how little you will rely on all orsome or any of it. …. [68] Specifically, Donald maintains that it was not up to the jury to decide what evidence to accept or reject.

He contendsthat the trial judge should have instructed the jury that it was obligated to reject Timothy’s evidence supporting a conspiracy to murderand planning and deliberation required for first degree murder. [69] The Crown maintains that, despite the contradictions, both the trial judge and the jury were entitled to consider theevidence given by Timothy in direct examination. Further, the Crown argues that, aside from Timothy’s evidence, there was otherevidence called that was capable of proving both the conspiracy charge and the intent requirement for first degree murder.

Finally, theCrown states that when all of the evidence is considered as a whole, it supports the verdict of guilty on both charges. Analysis [70] The test on a directed verdict motion following the close of the Crown’s case at trial is found in United States ofAmerica v. Shephard, (SCC), [1977] 2 S.C.R. 1067. It requires a judge to determine whether there is any admissibleevidence (direct or circumstantial) “upon which a reasonable jury properly instructed could return a verdict of guilty” (at p. 1080).

Ifthere is, the judge must dismiss the accused’s directed-verdict motion. [71] The standard to be applied on appellate review of a judge’s directed-verdict motion decision is correctness. See R. v.Henderson (W.E.), 2012 MBCA 93 at para. 125, 284 Man.R. (2d) 164; R. v. O’Kane (P.J.) et al., 2012 MBCA 82 at para. 42, 284Man.R. (2d) 72; and R. v. Barros, 2011 SCC 51 at para. 48, [2011] 3 S.C.R. 368. [72] Respecting the standard of review to be applied to the jury charge, Bastarache J., in R. v. Daley, 2007 SCC 53, [2007] 3S.C.R. 523, repeated and approved of the standard of review that had been set out in R. v.

Jacquard, (SCC), [1997] 1S.C.R. 314 (at paras. 30-31): When considering the adequacy of a trial judge’s charge on these elements, it is important for appellate courts to keep in mind the

following. The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind ofthe jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequencefollowed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge asa whole. The standard that a trial judge’s instructions are to be held to is not perfection.

The accused is entitled to a properly instructedjury, not a perfectly instructed jury: see Jacquard, at para. 2. It is the overall effect of the charge that matters. [emphasis added] [73] Finally, in arguing that the verdict was contrary to law and against the weight of the evidence, Donald is arguing that itis unreasonable. He maintains that, based on the evidence, the most he could have been convicted of was second degree murder, butmore likely manslaughter.

Thus, where a verdict is rendered by a jury, the test is whether the verdict was one that a properly instructedjury acting judicially could reasonably have rendered. See R. v. Yebes, (SCC), [1987] 2 S.C.R. 168. The reviewingcourt is mandated to re-examine the evidence and to some extent reweigh and consider the effect of the evidence. See R. v. Biniaris,2000 SCC 15, [2000] 1 S.C.R. 381; and R. v.

Coutu (K.S.), 2008 MBCA 151 at para. 95, 231 Man.R. (2d) 275. [74] Regarding Donald’s contention that the trial judge should not have considered Timothy’s evidence, the law is clearthat, on a motion for directed verdict, a judge is not entitled to make findings of credibility, determine what evidence should be preferred,or weigh various pieces of evidence. Those determinations are for the trier of fact. The issue for the judge is whether there is anyadmissible evidence. See Mezzo v. The Queen, (SCC), [1986] 1 S.C.R. 802 at 809-10. In this case, there was no issuerespecting the admissibility of Timothy’s evidence.

In denying the motion, the trial judge stated that she was satisfied that the evidenceof Timothy alone constituted admissible evidence on which a properly instructed jury could reasonably return a verdict of guilty.Therefore, the trial judge was correct in denying the motion. [75] However, Donald maintains that, even if the trial judge properly considered the evidence in the motion, she should haveinstructed the jury to reject it.

In support of this position, he says that the trial judge should have instructed the jury on the issue asfollows: You can either accept that [Timothy] testified that there was no agreement or plan to kill [the deceased] as was elicited from [counsel]through cross-examination or reject his evidence entirely regarding this plan to kill in which case there would be, either way, no evidencethat Donald … actually entered into a plan and conspiracy to kill [the deceased]. [emphasis added] [76] Donald offers no case law in support of the instruction he suggests.

Rather, he relies on a passage in the trial judge’sinstructions regarding out-of-court statements made by witnesses. During her instructions, the trial judge told the jury that if a witnesstells police that a car involved in an accident was red and then testifies in court that it was blue, the only actual evidence is that it wasblue. Donald maintains that Timothy’s contradictory testimony regarding the nature of the plan should be treated the same as in theexample. That is, because of the contradiction, the only actual evidence was that elicited in cross-examination. [77] There is no merit to this argument.

Its premise confuses out-of-court statements of a witness with in-court testimony. Itis trite to say that an out-of-court statement of a witness is not evidence unless it is adopted in testimony. [78] Furthermore, the jury instruction suggested by Donald is contrary to established case law. As correctly stated by thetrial judge, a trier of fact is entitled to accept all, none or some of the testimony of any witness. This includes situations where a witnessgives inconsistent or contrary testimony. See R. v. R. (D.), (SCC), [1996] 2 S.C.R. 291 at para. 93; R. v. François, (SCC), [1994] 2 S.C.R. 827 at 837; R. v.

Morin (1987), (ON CA), 21 O.A.C. 38 at paras. 19, (C.A.); and R.v. Thomas (1993), (BC CA), 24 C.R. (4th) 249 at para. 12 (B.C. C.A.). In this instance, the testimony given byTimothy in court constituted evidence, regardless of whether it was contradictory, and the jury was entitled to decide what, if any, useshould be made of it. [79] In

summary, the trial judge did not err in the manner in which she treated Timothy’s evidence, either in the directed-verdict motion or in her instruction to the jury. Therefore, there was evidence upon which the jury could reasonably convict. For thesereasons, I would not allow Donald’s appeal on these three grounds. 5. Did the trial judge err in failing to give special instructions to the jury with respect to Timothy’s evidence? Background and Issue [80] Donald argues that the trial judge erred in failing to give a special warning to the jury regarding the inconsistencies inTimothy’s evidence.

[81] In her instructions, the trial judge gave two Vetrovec warnings to the jury. The first warning was given directly afterTimothy testified. The second warning was given during her charge to the jury: Now, there are some circumstances concerning [Timothy] that should cause you to give his testimony some special scrutiny. He iscritical to the Crown’s case. He has admitted to having a role in this situation, both in terms of an agreement to kill [the deceased] andthe events surrounding the killing itself.

He was also initially charged with both offences and he has been given immunity fromprosecution on those charges. The immunity agreement was filed as Exhibit 3 and I point out to you that just because the agreementrequires him to tell the truth in order to maintain his immunity from prosecution, you do not have to conclude that that is what he hasdone. It is up to you. You will also recall that he testified that he tried to block much of the events of what happened out of his mind.

He admitted some thingswere getting fuzzy and confused in his recollection, and at some point he was shown various documents by his lawyer that were relatedto the case, including such things as statements by others and the phone records. Now, common sense tells you that in light of thesecircumstances, there is good reason to look at [Timothy’s] evidence with great care and caution.

So you should look for someconfirmation of [Timothy’s] evidence from somebody or something other than him before you rely upon his evidence in decidingwhether the Crown has proven the case against each accused beyond a reasonable doubt. ….

Now, [Timothy’s] circumstances might well make you wish that somebody or something else confirmed more of what he had to say, butyou can believe his testimony, however, if you find it trustworthy, even if no one or nothing else confirms it. …. [emphasis added] Positions of the Parties [82] In support of his argument that the trial judge should have given special instructions to the jury regarding Timothy’sevidence, Donald relies on the case of R. v. Janvier (W.M.), 2008 ABCA 223, 432 A.R. 338. In that case, the accused was alleged to bethe ringleader in a group of persons who assaulted the deceased.

The only issue was whether the accused had the requisite intent formurder under s. 229(

a) of the Criminal Code (the Code). The evidence that was relied on to prove intent consisted of youthful witnesseswho were inconsistent on significant issues under oath, were confused in their evidence, admitted difficulties with their ability toaccurately observe and mentally record their observations, admitted they were insecure in their own evidence and admitted theirmemories might have been affected by rumors in the community.

In that case, the court held that the nature of the evidence, althoughnot amounting to such that would require a Vetrovec warning, required the trial judge to draw the jury’s attention to those case-specificconcerns and why they were significant. [83] Donald complains that the trial judge did not specifically point to the inconsistencies in Timothy’s evidence in herinstructions and tell the jury how to approach those inconsistencies. [84] The Crown argues that Donald’s argument is without merit because, in this case, the trial judge went further than thecaution required in Janvier by providing the jury with a strong Vetrovec warning respecting Timothy’s evidence.

Analysis [85] The decision of a trial judge about whether to give a Vetrovec warning, and the nature and extent of the warning, isdiscretionary and therefore entitled to deference. A discretionary decision should be interfered with only “if the trial judge misdirectshimself or if his decision is so clearly wrong as to amount to an injustice”. (R. v. Regan, 2002 SCC 12 at para. 117, [2002] 1 S.C.R. 297.) In R. v.

Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, Bastarache J. described the standard of review of a trial judge’s decision aboutwhether or not to give a Vetrovec warning as “[p]rovided there is a foundation for the judge’s exercise of discretion, appellate courtsshould not interfere” (at para. 24). See also R. v. C.C.Y., 2001 SKCA 107 at para. 20, 213 Sask.R. 120; R. v. Harriott (2002), (ON CA), 58 O.R. (3d) 1 at para. 16 (C.A.); R. v. Wood (D.W.) et al., 2007 BCCA 563 at para. 30, 248 B.C.A.C. 255; andR. v.

Truelove, 2010 ONCA 608 at para. 6 (QL). [86] I agree with the Crown that the instruction given by the trial judge in this case was stronger than the one enunciated inJanvier. The trial judge did more than just highlight concerns with Timothy’s evidence, she warned them that it required specialscrutiny, advised them of the problems with his evidence, said that it should be viewed with great care and caution and that the juryshould look for confirmatory evidence.

In light of the strong warning, an additional warning, as envisioned in Janvier, was not required. [87] Furthermore, a review of the trial judge’s instructions as a whole indicates that she did direct the jury’s attention to themain discrepancy that Donald complains of, that is, that at first Timothy said that there was a plan to kill, but he also testified that theplan was only to do a break-in and perhaps an assault. She mentioned this testimony immediately after listing the evidence said toconfirm Timothy’s evidence.

The discrepancy was again repeated in the portion of her charge dealing with evidence of a conspiracy ingeneral and, again, in the evidence of Donald’s participation in the conspiracy. Thus, the totality of the instructions clearly underscoredthe import of the discrepancy. [88] In this case, the trial judge did not err in the law or the facts when determining that a Vetrovec instruction was

appropriate. Thus, there existed a foundation for her to exercise her discretion and deference is owed to the instruction she gave which, in any event, was stronger in many respects than that suggested by Donald. Therefore, based on all of the above, I would not allow this ground of appeal. 6. Did the trial judge err in refusing to poll the jury? Background and Issue [ 89 ] Both Donald and Sanford contend that the trial judge erred when she refused their respective counsels’ requests to poll the jury.

Thus, both accused will be dealt with together regarding this ground of appeal. [ 90 ] The events underlying this ground of appeal unfolded after the jury foreperson read out each of the verdicts against all of the accused: THE CLERK: Members of the jury, you say you find the accused, Donald … Sanford and … Cushnie, guilty of first degree murder of [the deceased] as charged? (JURORS CONFIRM) THE CLERK: And count 2, conspiracy to commit murder, guilty of conspiracy to commit murder of [the deceased] as charged, and so say you all? (JURORS CONFIRM) THE CLERK: Thank you.

You may be seated. [COUNSEL FOR DONALD]: My Lady, I would ask that we poll the jury. THE COURT: Your request to poll the jury is denied. [ 91 ] The trial judge then proceeded to thank the jurors for their service and to dismiss them. Just before court adjourned to allow the jurors to leave, counsel for Sanford also asked for the jury to be polled, which request was denied in the same manner. The court briefly recessed and then resumed to consider the matter of sentence.

After hearing submissions, the trial judge imposed sentence on each of the accused and then stated: And with respect to the request to poll the jurors, that is a discretionary matter and for the record I found there was no reason for me to have any question about the unanimity of the decision and those are the reasons I am putting on the record. [ 92 ] This gave rise to the following exchange: [COUNSEL FOR DONALD]: Thank you, My Lady.

For the record, the reason why I asked for it was two of the jurors were visibly in tears -- THE COURT: I don’t need to know the reason -- [COUNSEL FOR DONALD]: -- and one was -- THE COURT: -- for it. It is a matter of discretion.

Analysis [93] The decision of whether to poll the jury is an exercise in judicial discretion and therefore, is owed deference, save for anerror of law or principle. [94] In Canadian law, there is no requirement that jurors be polled. Rather, the issue is whether the judge is satisfied that ajury has reached a unanimous verdict. In Laforet v. The Queen, (SCC), [1980] 1 S.C.R. 869, Martland J. quoted withapproval the following statement in R. v.

Ford (1853), 3 U.C.C.P. 209 (at p. 875): That a jury may correct their verdict, or that any of them may withhold assent and express dissent therefrom at any time before it isfinally entered and confirmed, is clear from numerous authorities; and the judge presiding over a criminal court cannot be too cautious inbeing assured that, when a result so serious to the party accused as a verdict of guilty is arrived at, all the jury understand the effect andconcur in the decision; and if at any moment, before it is too late, anything occurs to excite suspicion on this subject, he should carefullyassure himself that there is no misapprehension in the matter.

In other words, the judge must be satisfied that there is no misapprehension of the matter of verdict. [95] Generally, the issue arises in situations where there is some reason to suspect that the jurors are not in agreement. Forexample, in R. v. Bryan (1970), (BC CA), 1 C.C.C. (2d) 342 (B.C. C.A.), at the time the foreman announced theverdict of not guilty, the jury was asked to rise to indicate the unanimity of the verdict. All jurors stood except for one juror who said“I’m not.” She remained seated for a moment and then rose.

In that case, the British Columbia Court of Appeal held that the failure topoll the jury in such a circumstance was not sufficient to render the verdict invalid and thereby cause a new trial. [96] Other examples of where a verdict was suspect were outlined in the Ontario Court of Appeal decision in Rex v. Recalla, (ON CA), [1935] O.R. 479. They include circumstances where it was not clear that all jurors heard the foremanannounce the verdict and, therefore, did not have an opportunity to dissent.

Upon learning of the verdict, some jurors expressed theirdissent. [97] The issue being unanimity, it is important to consider what the trial judge said respecting the matter. In this case, thetrial judge instructed the jurors regarding unanimity on a number of occasions. Each time she told the jurors that, while unanimity wasrequired for a verdict, it was not always possible. For example, just before the jury retired, she stated: It is also important that you understand the requirement of respecting the oath that each of you gave to consider all of the evidence andrender a true verdict.

You may be tempted during your deliberations to simply give up on your own conclusion about the evidence inorder to allow another view to prevail. Just because you all cannot agree does not mean that you should go along with the majority. Ifyou are unable to agree with your fellow jurors for good reason, remember, it is part of your oath to abide by your own conclusion as towhat the evidence tells you. [98] The trial judge also told the jury that, when they reached a verdict, the foreperson would announce the verdict and shewould ask them to confirm that they were all unanimous in the verdict.

That is exactly what happened in this case, and there is nothingto suggest that any juror was in disagreement with the verdict. [99] The accused claim that the circumstance of two jurors crying is sufficient cause for the trial judge to have concern thatthey were not unanimous. However, it must be remembered that this was a lengthy trial. The trial judge had the opportunity to observethe jury day in and day out. She was in the best position to determine whether there was reason to suspect the verdict was notunanimous, and deference is owed to that decision.

It is not uncommon for jurors to cry when rendering a verdict, regardless of whetherit is a conviction or an acquittal. Participation on a jury and in the rendering of a verdict can be an emotional experience for manyreasons. [100] Thus, the accused have not shown an error in law or principle which would justify appellate interference of the exerciseof the trial judge’s discretion. [101] In conclusion, I would not allow this ground of appeal.

However, despite denying this ground, I would note that therequest having been made to poll the jury, a more considered course of action would have been for the court to hear submissions prior todetermining the issue. IV. MELODY SANFORD [102] Aside from the failure to poll the jury, Sanford appeals on the basis that the trial judge erred in admitting into evidenceher video interview with police. She claims it should have been excluded because she was not properly advised of her right to counselpursuant to s. 10(

b) of the Charter. She also appeals the admission into evidence of comments made by Cushnie to a third person which,

if improperly used by the jury, could support a conclusion that Sanford had access via the bank card to a substantial amount of money around the time of the murder (the bank card issue). 1. Did the trial judge err in holding that Sanford’s video interview was not taken in circumstances that breached her s. 10 (

b) right to counsel? Background and Issue [ 103 ] In support of her argument that her video interview with police was taken in breach s. 10(

b) of the Charter , Sanford claims that police did not sufficiently ascertain whether she understood her right to counsel and therefore failed in their duty to inform her of her right.

She also claims that the police failed in their implementational duties of the right to counsel in that, first, they did not ascertain whether she had sufficient advice, and, second, that they should have provided a further opportunity for her to consult counsel just prior to her video interview. [ 104 ] Sanford was arrested by Corporal Kennett (Kennett) after she attended, unannounced, to the front office of the RCMP headquarters building in Winnipeg. The arrest was audio recorded.

When arresting Sanford, Kennett read from a form that had been prepared in advance, which detailed the charges and informed Sanford of her right to counsel. After advising Sanford of her right to counsel, the following exchange occurred: Kennett : …. Do you understand? Sanford : I, I think so, yeah. KENNETT: Do you think so, or … SANFORD: I, I’ve just got so much going through my head, I … KENNETT: … would you like me to repeat it? SANFORD: [sighs] KENNETT: Take a deep breath. SANFORD: I feel like my heart’s gonna, I’m gonna have a heart attack, heh. KENNETT: Yeah. Okay, would you like me to repeat it, Melody?

SANFORD: [Breathes heavily] I need a lawyer, phone a lawyer, is that what you said? KENNETT: Yeah… SANFORD: (c/u) KENNETT: … so I’m gonna give you the opportunity to contact Duty Counsel or a lawyer of your choice, telephone and telephone number. Do you understand that? Sorry?

SANFORD: Yes. KENNETT: Yes? SANFORD: Yeah. KENNETT: Okay. So do you want to call Duty Counsel or any other lawyer? SANFORD: I, I don’t know. I don’t know. I don’t know. I’m not – I got so many lawyer bills I can’t even pay them. KENNETT: Well, we’re going to take you back to the cell block and we’ll give you the opportunity to make a phone call to a lawyer or Duty Counsel, okay? SANFORD: [What] is Duty Counsel? KENNETT: Duty Counsel is, uh, a lawyer that’s free. They’ll give you free legal advice. [ 105 ] After Kennett repeated that duty counsel is free, Sanford confirmed that she would like to call counsel.

She was searched and an inventory of her belongings was taken. [ 106 ] During the inventory, Kennett noted that Sanford was in possession of a number of prescription drugs. Sanford told Kennett that she had taken two Oxycontin that day. [ 107 ] Next, Kennett provided Sanford an opportunity to contact duty counsel in private. While speaking with duty counsel, Sanford called Kennett into the room. Kennett spoke to duty counsel and advised her of the charges against Sanford.

Duty counsel said that she believed she had a conflict so arrangements would be made to have Sanford speak to another lawyer. [ 108 ] Shortly thereafter, Sanford was able to speak with a different lawyer. When she left the phone room, Sanford confirmed with Kennett that she had spoken to duty counsel. [ 109 ] Kennett testified that, early in her dealings with Sanford, she could tell that Sanford appeared to be under the influence of some type of drug. She said that Sanford seemed very tired and relaxed.

However, Kennett also stated that Sanford appeared to understand what was being said to her and that her ability to walk and speak appeared fine. In cross-examination, she confirmed that Sanford’s speech was alert, responsive and that she was able to paraphrase what was said.

Despite this, because of the concerns that Sanford was under the influence of some sort of drug, she was placed in a cell to rest, have a meal and give her time to make sure she was fine before she was interviewed. [ 110 ] Approximately six hours later, Kennett took Sanford to an interview room where she was interviewed by Corporal Spencer (Spencer). Kennett had previously told Spencer that Sanford had consulted counsel for ten minutes, although, in cross- examination, she clarified that Sanford had her head turned for much of that time and that she only saw Sanford actually speaking on the phone for two minutes.

Nonetheless, at the beginning of Spencer’s interview with Sanford, he confirmed that she knew what offences she was charged with and that she had consulted with counsel. [ 111 ] In fact, Sanford told Spencer that she had spoken to a lawyer who told her “not to talk.” Spencer then proceeded to interview Sanford. During the course of the interview, Sanford made many incriminating comments, including acknowledging that she offered money to have the deceased killed and that she took responsibility for setting up his murder.

She also agreed that she made the call to Cushnie on the night of the incident to advise that she and the deceased were meeting for dinner, so that Donald “could go out [to the deceased’s residence] and beat him up. Kill him.” Positions of the Parties [ 112 ] Sanford contends that her video interview was taken in breach of s. 10(

b) of the Charter because the police failed to fulfill their informational duty to ensure that she was advised of and understood her right to counsel. She claims that the informational component of her right to counsel was not met because, at the time she exercised her right to counsel, she appeared to be under the influence of a drug. She claims that her initial conversation with Kennett (earlier reproduced) showed that she was having trouble understanding her right, or even what was happening to her at the time.

She says that, under such circumstances, the police are obliged to take such steps as are necessary to facilitate adequate comprehension of the right, and they did not do so. In support of her position, she relies on the case of R. v. Willier , 2010 SCC 37 , [2010] 2 S.C.R. 429 .

[113] Next, Sanford also argues that the police failed to fulfill the implementational duty imposed by s. 10(

b) of the Charter. She maintains that the implementational duty requires the police to ensure that an accused has access to counsel when a desire to exercisethe s. 10(

b) Charter right has been expressed. Furthermore, she claims that the police must be satisfied that an accused has receivedsufficient legal advice. Specifically, she says that the circumstances of this case required police to ask more specific questions aboutwhether she exercised her right to counsel and was satisfied with her opportunity to do so. [114] In support of her argument that her consultation with counsel was insufficient, Sanford argues that the amount of timethat she actually consulted with counsel was significantly less than that to which Kennett testified.

This argument is based on the factthat the audio recording of the time frame when Sanford was privately speaking with counsel does not accord with the times testified toby Kennett. [115] Finally, relying on Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, Sanford contends that policefailed to fulfill their implementational duty respecting her s. 10(

b) Charter right in that they neglected to ask her a second time, prior toher interview with Spencer, if she would like to speak to counsel. She maintains that she should have been afforded a second opportunityto speak with counsel because she was under the influence of drugs when she first exercised her right. [116] The Crown maintains that the trial judge carefully considered the evidence and found that the right to counsel was given,understood and exercised, and that those findings should not be interfered with. [117] Next, the Crown relies on Sinclair and Willier to assert that while police must advise and facilitate contact with counsel,s. 10(

b) of the Charter does not require them to monitor the quality of the advice. Unless the detainee advises the advice wasinadequate, police are entitled to assume that the detainee is satisfied and commence to interview. Analysis [118] As the issues raised concern review of a constitutional determination dependent on findings of fact they will be reviewedin accordance with the Farrah standards stated earlier in this decision.

a) Informational Duty – Ability to Comprehend [119] The main basis of Sanford’s appeal on this issue concerns Kennett’s conclusion that Sanford appeared to be under theinfluence of some type of drug when she was arrested. In Willier, McLachlin C.J.C. and Charron J., writing on behalf of the majority ofthe Supreme Court of Canada, clarified that (at para. 31): The informational duty imposed on the police is relatively straightforward.

However, should a detainee positively indicate that he or shedoes not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate thatunderstanding…. [120] Regarding Sanford’s alleged inability to understand her right to counsel due to her drug ingestion, she relies on theClarkson case. In Clarkson, the accused was arrested for second degree murder. There was no question that, when she was given herright to counsel, she was intoxicated.

In response to the police asking her whether she wished to exercise her right to counsel, sheresponded that there was “no point” and underwent police questioning while she was still in a state of intoxication. In holding that theaccused’s s. 10(

b) Charter right had been violated, the majority of the Supreme Court held that a waiver of the right to counsel by anintoxicated accused must pass some form of “awareness of the consequences” test (at p. 395) and that, in order for it to be truly effective,it must be premised on “a true appreciation of the consequences of giving up the right” (at p. 396). [121] It is important to recognize that Clarkson deals with the test for waiver of the right to counsel. In this case, Sanfordexercised her right when she spoke to duty counsel.

Therefore, the test requiring an awareness of the consequences of waiving the rightto counsel does not apply.

However, I agree that there must still be the required level of awareness even where the right to counsel isexercised. [122] In Sinclair, the Supreme Court of Canada stated that the purpose underlying the right to counsel is to ensure that adetainee has the right to receive legal advice regarding his or her right to choose not to cooperate in a police investigation and how toexercise that right. [123] With respect to the concern that at the time she consulted with counsel Sanford’s ability to comprehend wascompromised as a result of her ingestion of drugs, the trial judge reviewed the audio recording and the transcript of Sanford’sconversations with Kennett.

She held that, at the time, Sanford had no difficulty with either comprehending what was happening to heror expressing herself. In reaching this conclusion, the trial judge also considered Kennett’s description of Sanford’s condition. Finally,she also relied on Sanford’s denial of impairment to Kennett when, at one point, she told Kennett, “I’m not drugged up. I’m stressed, tohere.

I’m not drugged.” [124] Regarding Sanford’s contention that she did not even know what she was charged with and this was why duty counselfound it necessary to ask Kennett what the charges were, the trial judge relied on Kennett’s evidence that it is not unusual for counsel toask police to confirm the charges an accused is facing.

[ 125 ] The trial judge’s findings regarding Sanford’s ability to comprehend are factual in nature and are entitled to deference. The trial judge considered the whole of the evidence and concluded that Sanford sufficiently understood the nature of the charges she was facing in order to speak with a lawyer and obtain the necessary advice. [ 126 ] Furthermore, the trial judge correctly pointed out that, in Clarkson , the majority of the Supreme Court of Canada stated (at p. 396): ….

At the very minimum it was incumbent upon the police to delay their questioning and the taking of the appellant’s statement until she was in a sufficiently sober state to properly exercise her right to retain and instruct counsel or to be fully aware of the consequences of waiving this right. …. [ 127 ] In this case, the police held off questioning Sanford for a number of hours to give her an opportunity to eat and rest. Furthermore, Spencer confirmed with the accused that she had exercised the right to counsel.

Her response that her lawyer told her not to say anything is indicative that she was well aware that she had the right to refuse to cooperate with the police investigation. [ 128 ] In light of all of the above, the trial judge did not err in her statement of the law, her factual findings or her application of the law to the facts when she determined that the informational component of Sanford’s right to speak to counsel was fulfilled, and I would not interfere with her decision in this regard.

b) Implementational Duty – Sufficiency of Advice [ 129 ] As mentioned, Sanford argued that she did not have sufficient opportunity to consult with counsel, and, because of her impaired state, it was incumbent on the police to ensure the she received sufficient advice.

In support of this argument, Sanford pointed to a discrepancy between the length of time that Kennett stated that Sanford appeared to be talking on the phone with duty counsel (which was at least two minutes, but possibly eleven) and the time indicated on her counsel’s computer when the CD of the audio recording provided to counsel was played in court.

That audio recording indicated a drastically shorter time frame. [ 130 ] The trial judge listened to the audio recording and noted that the time indicated on defence counsel’s computer would have only allowed for 40 seconds from the time Kennett closed the door to the telephone room to allow Sanford to call duty counsel and the time that Sanford knocked on the door confirming that she had finished speaking with counsel. The trial judge held that the time indicated on defence counsel’s computer must have been the result of a malfunction of the audio recording.

She based this finding on the testimony of Kennett, which she accepted, and the fact that it seemed impossible that Sanford could have made the call to legal aid, spoken to duty counsel and knocked on the door, all in 40 seconds. [ 131 ] These are factual findings and, absent palpable and overriding error, are entitled to deference. The reasons provided by the trial judge for preferring the evidence of Kennett over the digital copy of the audio recording played on the computer of counsel for the accused, do not disclose any such error.

Thus, I would not interfere with her finding. [ 132 ] Regarding Sanford’s argument that the police were under a duty to be satisfied that she received satisfactory advice, in Willier , the majority of the Supreme Court of Canada specifically rejected such an assertion (at para. 41): While s. 10(

b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship.

The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. As this Court recognized in R. v.

G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 , at para. 27 , there is a “wide range of reasonable professional assistance”, and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable. [emphasis added] [ 133 ] In light of the above, there is no merit to Sanford’s assertion that the police were required to ensure that her consultation with counsel was sufficient.

c) Implementational Duty – Failure to Offer a Second Opportunity to Contact Counsel [ 134 ] Sanford argues that she should have been provided a second opportunity to contact counsel prior to her interview with Spencer. In part, this argument is premised on the contention that Sanford was under the influence of a drug at the time she spoke to duty counsel.

However, as I earlier indicated, the trial judge found that Sanford was aware of the nature of the charges she was facing, exercised her right to counsel before she was placed in a cell and was given the opportunity to eat and rest before the police commenced questioning her. [ 135 ] There is nothing to suggest that any circumstance arose during the period of time that passed between Sanford’s dealings with Kennett and her dealings with Spencer which would require police to provide her with the right to counsel a second time. Indeed, in

Sinclair , the majority of the court held that, in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, will satisfy s. 10( b ) (see para. 47). [ 136 ] In reaching her determination that this was not a circumstance where a second opportunity to consult counsel was required, the trial judge considered Sanford’s argument that, during her interview with Spencer, she expressed some uncertainty about whether to cooperate with police or not.

Relying on Sinclair , the trial judge viewed the whole of the evidence and concluded that Sanford did not express a desire to speak to a lawyer during the interview. Rather, Sanford stated that her lawyer told her she should not talk. A review of Sanford’s video interview with Spencer supports the trial judge’s decision in this regard. Therefore, I wo

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