R v Spence, 2017 MBCA 26

Citation: R v Spence, 2017 MBCA 26 Date: 20170217 Docket: AR16-30-08528 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) ) B. F. Bonney Respondent ) for the Appellant ) ) J. M. Mann - and - ) for the Respondent ) ) Appeal heard: SKYLAR KYLE SPENCE ) December 7, 2016 ) (Accused) Appellant ) Judgment delivered: ) February 17, 2017 PFUETZNER JA [ 1 ] The accused appeals his conviction for first degree murder and seeks a new trial.

At trial, the accused admitted to his involvement in causing the death and offered to plead guilty to manslaughter, which the Crown rejected. [ 2 ] This appeal is limited to a review of the trial judge’s ruling not to exclude statements made by the accused to an undercover officer (the UCO). The accused argues that the trial judge erred in failing to exclude, under section 24(2) of the Canadian Charter of Rights and Freedoms (the Charter ) , statements that he made to the UCO.

In particular, his position is that the trial judge erred in failing to find that the statements were obtained in a manner that infringed his right, under

section 10 (

b) of the Charter, to retain and instruct counsel without delay and, further, that he erred in failing to exclude the statements under section 24(2) of the Charter on the basis that their admission would bring the administration of justice into disrepute. [ 3 ] For the reasons that follow, I am of the view that the trial judge did not err in his factual findings, that his ruling on admissibility is entitled to deference and that the appeal should be dismissed.

Facts [ 4 ] The deceased, Bernard Hart, was brutally beaten by the accused and three co-accused after getting into an argument with the accused at a residence in Thompson, Manitoba. The accused and co-accused subsequently carried the deceased outside to the bush, breaking his arms in order to remove him from the residence. In the bush, the deceased was stabbed and his neck was cut. [ 5 ] The skeletal remains of the deceased were not discovered for over a month. Initially, the cause of death was ruled “unascertained”.

Subsequently, the accused and one of the co-accused were in custody on unrelated charges and admitted to another inmate that they had killed the deceased. The inmate contacted the RCMP and provided a statement. As a result, the deceased’s remains were disinterred and examined by a forensic anthropologist. This new evidence led the RCMP to reclassify the death as a homicide. [ 6 ] After a further investigation, the RCMP arrested the accused for murder. Upon his arrest at Stony Mountain Institution, where the accused was serving an unrelated sentence, the accused requested to speak to a lawyer.

The arresting officer made several attempts to contact lawyers requested by the accused, none of whom were available. Meanwhile, the accused was transported to Winnipeg and placed in a cell at the RCMP D Division Headquarters. The cell was already occupied by the UCO who was there as part

of the RCMP operation to investigate the accused’s involvement in the homicide. The UCO was posing as a recently arrested accused. [ 7 ] The accused was in the cell with the UCO for nearly two hours before he was able to speak to a lawyer at Thompson Legal Aid. At the voir dire on whether the accused’s statements should be excluded, it was an agreed fact that “any competent counsel would advise an accused in custody not to speak to the police, and to be aware of undercover agents in the cell and not to speak”. [ 8 ] Prior to speaking with counsel, the accused was not questioned by police.

However, he did converse with the UCO in his cell about a variety of topics. During this time, the accused did not make any admissions to the UCO and the accused concedes that the UCO did not attempt to elicit information from him about his involvement in the homicide. I will refer to the accused’s statements made to the UCO prior to speaking to counsel as the “first UCO statement” and I will refer to all statements made to the UCO after speaking to counsel as the “second UCO statement”. [ 9 ] After speaking with counsel, the accused was questioned by Sergeant Doyle for more than three and one-half hours.

Sergeant Doyle spent much of the interview explaining the extent of the evidence against the accused, including two statements: one from one of the co-accused and one from a former fellow inmate. The accused repeatedly stated that he was not going to say anything. [ 10 ] After this interview, the accused was returned to the cell with the UCO for about two and one-half hours. Although they spoke sporadically during that time, the accused did not make any admissions to the UCO.

Instead, he described the evidence against him as a “bunch of bullshit”. [ 11 ] Next, the accused was interviewed by Sergeant Sells for a total of three hours. Sergeant Sells again reviewed the strength of the evidence against the accused, disclosed further evidence to him and appealed to the accused’s conscience. The accused eventually provided a detailed confession of his involvement in the homicide. Sergeant Sells asked the accused if the deceased was still moving when his neck was being cut.

The accused responded, “He kinda looked like he was in shock, like shaking.” [ 12 ] Immediately after returning to his cell, the accused’s first statement was, “Fuckin’ guy they got a shit load of evidence on me.” The accused then told the UCO, “I just fuckin’ confessed” and again implicated himself in the murder, stating, “So me and one a my buddy’s tied him up, broke his arms, carried him to the bush, killed him.” Trial Proceedings [ 13 ] As noted above, at trial, the accused offered a guilty plea to manslaughter, which was rejected by the Crown.

The accused’s position at trial was that the Crown could not prove that the deceased was still alive when he was taken to the bush and his neck cut. The accused argued that, if the deceased died from the beating, the accused did not have the requisite intention for first degree murder but was guilty of either second degree murder or manslaughter. [ 14 ] A significant aspect of the Crown’s evidence was the statements made by the accused to Sgt. Doyle, Sgt. Sells and the UCO.

A voir dire was held on the admissibility of those statements at which the Crown conceded that there was a breach of the accused’s rights under

section 10 (

b) of the Charter when he was placed in the cell with the UCO prior to having spoken to counsel. [ 15 ] The trial judge admitted the statements made to Sgt. Doyle and Sgt. Sells after the accused had spoken to counsel and the second UCO statement. The trial judge excluded all statements made prior to the accused speaking to counsel, including the first UCO statement. The trial judge concluded that: (1) the UCO did not elicit incriminating information from the accused in a manner that violated the accused’s right to remain silent afforded by

section 7 of the Charter ; (2) the breach of

section 10 (

b) of the Charter was not connected to the confessions; the accused confessed because of the amount and nature of the evidence against him; and the accused’s consultation with counsel prior to his confession to Sgt.

Sells and then to the UCO had the effect of severing those confessions from the prior Charter breach; and (3) if he was wrong in his conclusion that the confessions were severed from the Charter breach, he determined that the statements should not be excluded under section 24(2) of the Charter , as their admission would not bring the administration of justice into disrepute. [ 16 ] The jury convicted the accused of first degree murder.

Positions of the Parties [ 17 ] The accused does not take issue with the trial judge’s conclusions that the UCO did not elicit information concerning the homicide from the accused and that the statements to Sgt. Doyle and Sgt. Sells should not be excluded. However, the accused argues that the second UCO statement should have been excluded under section 24(2) of the Charter . [ 18 ] The accused’s position is that the first UCO statement cannot be severed from the second UCO statement as the objective of the UCO operation of building rapport with the accused began with their initial contact.

Essentially, the accused argues that there is a strong contextual connection between the first UCO statement, made in breach of the Charter , and the second UCO statement, made after he spoke with counsel. [ 19 ] The accused also appeals the trial judge’s ruling that admission of the second UCO statement would not bring the administration of justice into disrepute. He does not suggest that the trial judge failed to consider the proper factors under the Grant test ( R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 ) but, rather, says that they were not balanced properly.

He argues that the trial judge put too little emphasis on the first factor, being the seriousness of the breach, and also underemphasized the second factor, being the impact of the

section 10 (

b) breach on the accused.

[20] The Crown argues that the trial judge correctly applied the legal principles in determining that the second UCOstatement was not obtained in a manner that infringed on the accused’s Charter rights and that his decision is entitled to deference. TheCrown submits that, if the second UCO statement was obtained in a manner that infringed on the accused’s Charter rights, the trialjudge’s section 24(2) ruling not to exclude the statement is entitled to deference. Analysis and Decision [21] The sections of the Charter that are relevant to this appeal are

section 10(

b) and section 24(2), which state: Arrest or detention 10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; Exclusion of evidence bringing administration of justice into disrepute 24.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or deniedany rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [22] The Crown concedes that there was a breach of the accused’s rights under

section 10(

b) of the Charter when he wasplaced in the cell with the UCO. Accordingly, the issue is whether the trial judge correctly applied section 24(2) in deciding not toexclude the second UCO statement. [23] The determination of whether the remedy of exclusion of evidence should be granted under section 24(2) of the Charteris a two-step process. The first step is that the court must determine whether the impugned evidence “was obtained in a manner” thatinfringed or denied the accused’s Charter rights.

It is only if the evidence was so obtained that the court will move to the second stepand determine whether admission of the evidence would bring the administration of justice into disrepute (see R v Mack, 2014 SCC 58 atpara 37, [2014] 3 SCR 3; R v Wittwer, 2008 SCC 33 at para 19, [2008] 2 SCR 235; and R v Plaha (B) (2004), (ONCA), 189 OAC 376 at para 44). [24] The strength of the connection between the evidence obtained and the Charter breach is a question of fact (see R vGoldhart, (SCC), [1996] 2 SCR 463 at para 40; and Mack at para 39).

Accordingly, the standard of review applicableto the first threshold question is that, absent palpable and overriding error, the facts as found by the trial judge should not be disturbed onappeal (see Grant at para 129; and R v Farrah (D), 2011 MBCA 49 at para 7, 268 ManR (2d) 112). [25] In respect of the second step of the analysis under section 24(2) of the Charter, a trial judge’s decision is entitled to“considerable deference” and will not be interfered with on appeal where the trial judge has considered the proper factors and has notmade any unreasonable findings (see Grant at para 86; Mack at para 39; R v Beaulieu, 2010 SCC 7 at para 5, [2010] 1 SCR 248; andFarrah at para 7). [26] The overall burden of proof under section 24(2) rests on the applicant seeking the exclusion of evidence (see R v Bartle, (SCC), [1994] 3 SCR 173 at p 209).

However, in the circumstances of this appeal, the burden of proof shifts to theCrown in respect of its claim that the second UCO statement was not sufficiently linked to the prior breach of the accused’s Charterrights to have been “obtained in a manner” that infringed or denied the accused’s rights. In Bartle, Lamer CJC wrote (at p 212): The state bears the responsibility for the breach of the accused's constitutional rights.

If the state subsequently claims that there was nocausal link between this breach and the obtaining of the evidence at issue, it is the state that should bear the burden of proving thisassertion. [27] The legal test for determining when evidence has been “obtained in a manner” that infringed an accused’s rights underthe Charter is well established and was recently stated by Moldaver J in Mack (at para 38): Whether evidence was “obtained in a manner” that infringed an accused’s rights under the Charter depends on the nature of theconnection between the Charter violation and the evidence that was ultimately obtained.

The courts have adopted a purposive approachto this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent statement may be temporal, contextual, causal or a combination of the

three. A “remote” or “tenuous” connection between the breach and the impugned evidence will not suffice ( Wittwer , at para 21 ). [ 28 ] The trial judge applied the correct legal test to determine the threshold question of whether the second UCO statement was obtained in a manner that infringed the accused’s Charter rights. The trial judge referred to the Wittwer test applied in Mack (see R v Spence (SK) et al , 2016 MBQB 53 at para 34 , 327 ManR (2d) 5). The trial judge also referred to the comments of Doherty JA in Plaha regarding the potential effect of an accused speaking to counsel following a breach of

section 10 (

b) of the Charter (at para 35): A consultation with counsel can sometimes have the effect of severing a subsequent statement from an earlier breach of the right to counsel. It does not, however, automatically immunize the subsequent statements from that earlier Charter breach.

The effect of that consultation on the question of whether the subsequent statement was obtained in a manner that infringed the accused’s right to counsel must be a case-specific inquiry. (citations omitted) (emphasis added) [ 29 ] In addition, the trial judge recognized that, once a Charter breach is established, the Crown has the burden of demonstrating that the evidence was not obtained in a manner that infringed the accused’s Charter rights (see Spence at para 36 ). [ 30 ] The trial judge made no errors in his factual findings, all of which were supported by the evidence.

The trial judge considered the proper factors in analyzing the nature of the connection between the Charter violation and the second UCO statement. First, he determined that there was no causal connection, stating (at para 37): “ Based on the totality of the evidence before me, I can discern no causal link between the conduct of the UCO and the inculpatory statements made by the accused to the UCO.” [ 31 ] The trial judge found that the accused chose to confess due to his understanding of all of the evidence against him, Sgt. Sells’ appeals to his conscience and his sense of remorse (see para 37).

The trial judge found that the presence of the UCO in the cell prior to the accused speaking with counsel did not contribute to the accused’s decision to confess “notwithstanding the temporal connection between the cell plant and the eventual admissions” (at para 42). [ 32 ] As for the accused’s argument that the first UCO statement and the second UCO statement are contextually linked and that the UCO had begun building a rapport with the accused during the first portion, the trial judge described their initial conversation as “sterile” (at para 52). [ 33 ] In the trial judge’s view, the lack of any causal connection between the Charter breach and the second UCO statement overrode any temporal or contextual connection between the two. [ 34 ] The trial judge’s finding that the second UCO statement was not obtained in a manner that infringed the accused’s Charter rights was open to him and there is no basis for appellate intervention based on this ground of appeal. [ 35 ] If I am wrong in finding that the trial judge did not err in concluding that the second UCO statement was not obtained in a manner that infringed the accused’s Charter rights, I am of the view that the trial judge’s ruling under section 24(2) is entitled to deference.

The trial judge concluded that the police “did not act negligently or in bad faith” and their conduct “did not demonstrate any insensitivity to the Charter or unacceptable ignorance of the accused’s Charter rights” (at para 52); the impact of the police conduct on the accused’s Charter rights was not significant in that “it did not play a

part in the accused’s ultimate confession” (at para 53); and that the confession provided by the accused was “highly reliable” given the corroborative nature of the physical and other available evidence (at para 54).

He concluded that the admission of the accused’s statements, including the second UCO statement, would not bring the administration of justice into disrepute. [ 36 ] As stated by the Supreme Court of Canada in R v Mian , 2014 SCC 54 at para 77 , [2014] 2 SCR 689 : It is well established that the determinations of trial judges as to what would bring the administration of justice into disrepute having regard to all of the circumstances will be reviewed deferentially: “Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review” ( R. v.

Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215 , at para. 44 , per Cromwell J.). [ 37 ] There is no dispute that the trial judge considered the proper factors under Grant . His findings of fact were reasonable and supported by the evidence. His conclusion that a decision not to exclude the second UCO statement would not bring the administration of justice into disrepute is entitled to deference. Conclusion [ 38 ] I would dismiss the appeal. JA

I agree: JA I agree: JA