R. v. Coaster, 2014 MBCA 108

Citation: R. v. Coaster, 2014 MBCA 108 Date: 20141127 Docket: AR 13-30-07939 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : ) HER MAJESTY THE QUEEN ) D. M. Sawchuk ) for the Appellant ) Respondent ) N. M. Cutler ) for the Respondent - and - ) ) Appeal heard: CHARLES HERBERT COASTER ) November 3, 2014 ) ) Judgment delivered: (Accused) Appellant ) November 27, 2014 ) MAINELLA J.A.

Introduction and Issues [ 1 ] The appellant was tried for second degree murder by a judge and jury arising from the beating of a fellow inmate inside Stony Mountain Institution (SMI). He was convicted of manslaughter.

He appeals his conviction on grounds related to the judge’s decision to admit a video-recorded statement in which he confessed to participating in the assault. [ 2 ] The two issues on appeal are whether the judge erred in concluding that the police did not improperly induce the confession, and whether the appellant was given reasonable privacy in the exercise of his right to counsel. [ 3 ] The appellant submits that his statement was involuntary because the police improperly induced his confession by an implicit offer of leniency of him facing a lesser charge. He further argues that s. 10(

b) of the Canadian Charter of Rights and Freedoms (the Charter ) was infringed because he was not alone while exercising his right to retain and instruct counsel prior to giving the statement, but rather was under the watch of a correctional officer. [ 4 ] For the reasons that follow, I would not accede to either of the appellant’s arguments. Background [ 5 ] After a lengthy investigation, the police identified the appellant, through witness interviews and forensic evidence, as one of several suspects involved in the beating death.

In order to complete their investigation, Corporals MacInnis and Novakoski arranged to take a statement from the appellant at SMI. The appellant was a sentenced prisoner who also had recently been charged for an unrelated allegation of second degree murder. [ 6 ] Two rooms in the administrative building at SMI were provided to the officers. The first room, the interview room, was a boardroom for the taking of the video-recorded statement.

The second room, the telephone room, was a separate enclosed office across the hall from the interview room for the appellant to use to contact counsel. [ 7 ] The appellant was taken to the interview room by a correctional officer. Corporal MacInnis told the appellant that he would be charged with murder or some similar offence, either manslaughter or second degree murder, depending on the Crown Attorney’s review of the evidence. He was then advised of his right to counsel, which included Cpl. MacInnis telling him he had the right to consult with counsel “in private.” The appellant asked to speak to counsel.

Corporal MacInnis told the appellant he would get a “private phone” to do so and then he read the appellant the police caution. [ 8 ] Corporal MacInnis told the appellant that because he was a maximum security prisoner, the door to the telephone room would be open so that the correctional officer could keep him in eyesight. He explained that the correctional officer would be far enough

away to not hear him, but he should keep his voice down so that there was no chance of him being overheard. [ 9 ] While the appellant was in the telephone room, the door to the hallway was open about eight inches to allow the correctional officer to observe the appellant from behind. The correctional officer was ten feet away from the appellant across the hallway. The officers were in the interview room with the door closed. They could not hear the appellant. [ 10 ] The appellant testified on the voir dire that he believed that the correctional officer would try to overhear him.

He also said that he could hear voices of prison staff through the open door to the telephone room so he saw no point in keeping his voice down. [ 11 ] Before the interrogation began, the appellant lied to Cpl. MacInnis by telling him that he had spoken to his lawyer. Actually, he was unable to reach his lawyer and decided to make an unauthorized call to his ex-girlfriend, which was unsuccessful. He testified that he believed the lie would cause the officers to “leave [him] alone so [he] could get out of there.” [ 12 ] The interrogation lasted for approximately 45 minutes.

The judge concluded that “neither the circumstances under which the interrogation occurred nor the manner and content of the questioning created an atmosphere of oppression” (at para. 24). That finding is unchallenged. [ 13 ] At no time during the interrogation did the officers expressly promise that if the appellant confessed to his involvement in the beating, he would face a lesser charge than second degree murder. [ 14 ] Instead, the officers attempted to persuade the appellant to discuss the incident by using the theme of inevitability.

They told him he was going to be charged because the victim’s blood was found on his clothes and shoes and witnesses had identified him as participating in the assault. The only uncertainty was which charge the Crown Attorney would authorize. The officers told the appellant that the Crown Attorney would be interested in the evidence about his intention to kill at the time of the beating and the victim’s condition when the appellant joined in the assault.

The officers explained that the appellant’s charge could be second degree murder, manslaughter or aggravated assault, depending on what evidence the police gathered. Corporal MacInnis told the appellant which charge he faced could make a “big difference” in terms of when he would get out of jail. [ 15 ] While the officers feigned disinterest in whether the appellant gave a statement, they exhorted him and gave him advice to use the opportunity of the interview to help himself in the face of the inevitable, of being charged for the beating. As Cpl.

Novakoski put it at one point, “Now is your chance, Charles, help yourself out.” [ 16 ] The appellant testified on the voir dire that he thought he could avoid being charged with second degree murder by just admitting that he had given the victim “a couple of shots.” However, he went on to confess that two of the blows he delivered were to the victim’s jaw, while he was already unconscious on the floor and bleeding from the mouth. [ 17 ] The judge concluded that the officers never “made any quid pro quo offers” (at para. 26).

The only promise they made was “that [the appellant’s] statement would be considered by the Crown Attorney” ( ibid .). She went on to conclude that even if the officers made an implicit inducement to the appellant to confess, “it was subtle and insufficient to raise a reasonable doubt about whether the will of the [appellant] was overborne” (at para. 27).

In coming to that conclusion, the judge relied on the fact that the appellant was treated properly by the officers, the police did not misinform him and the video of the interrogation confirmed he “appear[ed] at ease and quite measured in what he wanted to tell the police” (at para. 29). [ 18 ] The judge further concluded that the totality of the circumstances did not satisfy her that s. 10(

b) of the Charter was infringed because the door to the telephone room was not fully shut and a correctional officer was within eyesight of the appellant’s backside. The judge said that while the situation was not “ideal,” there was “no evidence that anyone overheard [the appellant’s] conversations and [his] behaviour together with the set-up suggests otherwise” (at para. 48). Analysis and Decision Voluntariness of the Appellant’s Statement The Modern Confessions Rule [ 19 ] The modern confessions rule is concerned with voluntariness “broadly defined” ( R. v. Oickle , 2000 SCC 38 at para. 32 , [2000] 2 S.C.R. 3).

While the rule primarily addresses concerns over the reliability of a confession, it also protects an accused’s rights and fairness in the criminal process ( Oickle at para. 69 ; and R. v. Singh , 2007 SCC 48 at paras. 29-30 , [2007] 3 S.C.R. 405). David M.

Paciocco & Lee Stuesser, The Law of Evidence , 6th ed. (Toronto: Irwin Law Inc., 2011) summarize the analysis a trial judge must undertake in deciding whether an accused’s statement is voluntary as follows (at p. 323): [I]n order for most statements made to a person in authority to be admissible the Crown must establish beyond a reasonable doubt in light of all the circumstances that the will of the accused to choose whether to speak has not been overborne by inducements, oppressive circumstances, or the lack of an operating mind.

In addition, there must not be police trickery that unfairly denies the accused’s right to silence. (See also R. v. Tessier , 2002 SCC 6 at para. 2 , [2002] 1 S.C.R. 144.) Standard of Review of a Voluntariness Decision

[ 20 ] Determinations of voluntariness are questions of fact or mixed fact and law ( Oickle at para. 22 ). In Oickle , the standard of review for an appeal court was described in the following manner (at para. 71): ….

If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts” …. [Citations omitted; emphasis in original] Analysis and Decision [ 21 ] The judge understood the requirements of the Oickle test as to determining voluntariness.

She stated in her reasons (at para. 27): “It is the strength of an inducement having regard to the particular individual and circumstances that is considered in the overall contextual analysis into the voluntariness of the [appellant’s] statement.” [ 22 ] The main thrust of the appellant’s submission on this ground of appeal is that the judge should have focussed more on the words the officers used in the interrogation because they were an inducement to confess. The weight to be attached to the language the interrogators used was for the judge, not this court.

Moreover, the appellant’s submission is contrary to the broad understanding of voluntariness discussed in Oickle . [ 23 ] Spontaneous confessions to police inspired by remorse are rare. In order to not unduly limit society’s need to investigate and solve crimes by the questioning of suspects, the confessions rule recognizes that inducements from the police are necessary because typically, suspects must be convinced to confess. Therefore, the mere fact that a person has been offered an inducement of some kind by the police does not render a statement involuntary.

As Iacobucci J. explained in Oickle (at para. 57 ): “This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.” [ 24 ] While the officers did not provide misinformation to the appellant during the interrogation, I agree with the appellant that some of the officers’ comments involved risky language to the effect of “it will be better if you told the truth.” However, as the judge properly noted in her reasons, such language does not lead to automatic exclusion; context is the controlling consideration ( Oickle at para. 54 ). [ 25 ] The appellant’s further argument that the judge erred in concluding that the officers’ language did not amount to a quid pro quo is unpersuasive (see para. 26).

The central issue for the judge was voluntariness, not whether the officers’ words were capable of being a quid pro quo . As Deschamps J. explained in R. v. Spencer , 2007 SCC 11 , [2007] 1 S.C.R. 500 (at para. 19 ): “while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness.” [ 26 ] It is conceded that the appellant was treated properly by the police; there was an absence of oppressive circumstances.

In such a case, a strong inducement would be necessary to render his confession involuntary ( Oickle at paras. 71, 87 ). [ 27 ] While an implicit offer of lenient treatment and the possibility of a reduced charge may not have the same impact as an explicit offer of leniency, particularly in a situation such as this where the officers repeatedly made it clear that the Crown Attorney, not them, would decide the appellant’s charge, such an inducement is still, in my view, a significant one because, “[t]he classic ‘hope of advantage’ is the prospect of leniency from the courts” ( Oickle at para. 49 ). [ 28 ] That said, despite the strength of such an inducement, the judge concluded, based on her evaluation of the video- recording of the statement and the evidence on the voir dire from the officers and the appellant, that the appellant was quite capable of resisting the officers’ pressure.

She found that the police tactics had no “coercive effect” on him (at para. 29). In my view, that finding was open to the judge. [ 29 ] The appellant was a mature individual, well acquainted through personal experience with the workings of the criminal justice system. He was familiar with police interrogations, having only recently been interviewed for an unrelated murder charge. There was no evidence that he panicked or displayed discomfort as a result of the police tactics.

He remained in control during the interrogation, deciding how much information he would share, and was the decision-maker who ended the interrogation when he told the officers he had “said enough.” The judge was entitled to rely on this evidence as to the particular circumstances of the appellant in coming to her conclusion that the statement was voluntary ( Spencer at paras. 20-21 ; R. v.

J.P.F. , 2002 BCSC 106 at para. 28 , [2002] B.C.T.C. 106). [ 30 ] It is important to note that the Oickle analysis of voluntariness is contextual and case specific, therefore a similar sort of inducement made in a different context may lead to exclusion. However, I see no legal error in the judge’s reasoning and no basis to interfere with her finding that there was not an improper inducement that rendered the statement involuntary. Right to Consult Counsel in Private Reasonable Privacy –

section 10(

b) of the Charter [ 31 ] The right to privacy, so far as circumstances permit, is inherent in the right to retain and instruct counsel without delay guaranteed by s. 10(

b) of the Charter . It is well accepted that privacy afforded to a detainee consulting with counsel will be

unreasonable where it is established that there has been an actual invasion of privacy such that the police did overhear the detainee’sconversation (R. v. LePage (1986), (NS CA), 75 N.S.R. (2d) 322 at para. 15 (S.C. (A.D.)); R. v. McKane (1987), (ON CA), 21 O.A.C. 73 at para. 9; and R. v. Gilbert (1988), (ON CA), 24 O.A.C. 150). [32] This court has not previously considered the question of what is the appropriate standard to assess the reasonableness ofthe privacy afforded to a detainee for the purposes of s. 10(

b) of the Charter short of an actual invasion of privacy. There is a lack ofappellate consensus on the issue. [33] One view is that s. 10(

b) of the Charter is infringed where it is probable that the police could overhear the detainee’sconversation with counsel (R. v. O’Donnell (K.B.), 2004 NBCA 26 at para. 12, 269 N.B.R. (2d) 162). Another view is that s. 10(

b) of theCharter is infringed when the detainee has a reasonable belief that he or she cannot speak to counsel in private, unless it can be shownthat the detainee was, in fact, able to speak to counsel in private (R. v. Playford (1987), (ON CA), 24 O.A.C. 161 atpara. 38; and R. v. Parrill (E.) (1998), (NL CA), 169 Nfld. & P.E.I.R. 28 at para. 14 (C.A.)). [34] A belief by a detainee that his or her conversation may be overheard by the police that is unreasonable in the totality ofthe circumstances is not an infringement of s. 10(

b) of the Charter (Playford at para. 38; R. v. Cairns (J.) (2004), (ON CA), 182 O.A.C. 181 at para. 15; and R. v. Burley (D.) (2004), (ON CA), 182 O.A.C. 395 at para. 28). [35] In my view, the test in Playford is to be preferred over the one set out in O’Donnell for two reasons. To begin, thePlayford analysis has greater clarity because it is centered on the reasonableness of the perspective of a detainee, as opposed to theauditory abilities of the police, a fact more difficult practically for a trial court to ascertain and for an accused to prove (see R. v. Dowell(M. J.), 2010 ABPC 389 at paras. 21-22 (QL)).

Moreover, the Playford analysis is a broader and more flexible standard. It provides ameans for an accused to prove a breach based on subjective and objective considerations, and it also allows the Crown to rebut asuggestion of infringement of s. 10(

b) by demonstrating that, in fact, the accused exercised his or her right to counsel in private. Review of Judge’s Decision on Reasonable Privacy [36] The facts of this case are such that under any standard discussed in the jurisprudence, the appellant was affordedreasonable privacy for the purposes of s. 10(

b) of the Charter. There was no actual invasion of privacy. Neither the police nor thecorrectional officer could hear the appellant’s telephone conversations. Finally the appellant’s act of making an unauthorized call to hisex-girlfriend demonstrated he did not have a reasonable belief that his conversation could be overheard. [37] The judge stated the correct legal principles and made no misdirection in their application to the facts of this case. Shealso appropriately considered the totality of the circumstances in making findings of fact without palpable and overriding error. Accordingly, there is no basis for appellate interference with the judge’s decision that s. 10(

b) of the Charter was not infringed (R. v.Grant (I.M.), 2009 MBCA 9 at para. 25, 236 Man.R. (2d) 54, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 94 (QL)). Disposition [38] I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.