R. v. Ashmore (J.A.), (2011) 298 B.C.A.C. 240 (CA)

• Judge: Frankel, Tysoe and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: Monday January 24, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 298 B.C.A.C. 240 (CA);2011 BCCA 18

R. v. Ashmore (J.A.) (2011), 298 B.C.A.C. 240 (CA);

    505 W.A.C. 240

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. JA.016

Regina (respondent) v. Jeffrey Alan Ashmore (appellant)

(CA037354; 2011 BCCA 18)

Indexed As: R. v. Ashmore (J.A.)

British Columbia Court of Appeal

Frankel, Tysoe and Neilson, JJ.A.

January 24, 2011.

Summary:

A jury convicted the accused of first degree murder. The accused admitted to participating in the victim's death, but argued that it was not planned and deliberate. The accused appealed, challenging the admissibility of statements made to an undercover officer as part of a "Mr. Big" operation, statements made to police during post-arrest interviews, and a recorded telephone conversation with his mother. The accused also challenged the validity of a re-enactment that followed the interviews. The accused alleged a denial of his right to counsel (Charter, s. 10(b)) and arbitrary detention (s. 9).

The British Columbia Court of Appeal dismissed the appeal, rejecting all of the accused's arguments except one. Although the accused was arbitrarily detained while participating in the re-enactment (unlawfully taken from the place where he was remanded into custody), exclusion of the evidence obtained following that breach would not bring the administration of justice into disrepute and was, accordingly, not to be excluded under s. 24(2) of the Charter.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was arrested on a Friday afternoon and was charged with first degree murder - He was taken before a justice, as required by law, within 24 hours (via video-conference) - The justice, as required by law, remanded him into custody - The remand order specifically authorized the accused's detention in the police lock-up for the weekend - The accused was removed from the lock-up and out of the police station to participate in a re-enactment of the murder - The British Columbia Court of Appeal held that the accused's unlawful removal from the place he was remanded to constituted an arbitrary detention (Charter, s. 9) - However, the court declined to exclude the evidence obtained subsequent to the re-enactment under s. 24(2) - The accused voluntarily chose to accompany police for the re-enactment - The breach had no real impact on the accused's liberty interests, as he was lawfully remanded into custody and not free to go anywhere - The only effect of the re-enactment was that the accused demonstrated what he already verbally explained he had done - The court stated that "what is in issue here is evidence of a re-enactment of a first degree murder that [the accused] voluntarily participated in after exercising his right to consult with counsel. Balancing all the factors, I have concluded that, in the long-term, the repute of the administration of justice would be adversely affected by the exclusion of the re-enactment" - See paragraphs 106 to 113.

Civil Rights - Topic 4601

Right to counsel - General (incl. nature and purpose of) - The British Columbia Court of Appeal stated that "the purpose of s. 10(b) [of the Charter] is to ensure that a detainee is not only aware that he or she is not obliged to speak with the police or co-operate in their investigation, but is also aware how to exercise those rights" - See paragraph 64.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4620.1].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - An accused suspected of first degree murder was questioned, then released - A subsequent Mr. Big undercover operation resulted in the accused admitting, on videotape, that he killed the victim and that it had been planned 1-2 months in advance - The accused was arrested and properly advised of his right to counsel - The accused exercised his right to counsel and acknowledged satisfaction with that advice, which repeatedly warned the accused not to speak with the police and to be aware of police trickery intended to induce him to talk - During questioning, the accused was confronted with his videotaped confession to the undercover officer posing as a crime boss - The accused then gave a statement confessing to the murder and later participated in a re-enactment of the crime - He was convicted of first degree murder - On appeal, the accused submitted that he had a right to be re-advised of his right to counsel before being confronted with the videotaped confession and before being asked to participate in a re-enactment - The British Columbia Court of Appeal held that neither event triggered a police obligation to re-advise the accused of his right to counsel - Playing the videotaped statement did nothing more than accurately disclose evidence that the police had already gathered - This was not a new or non-routine procedure that would not have been in the contemplation of the legal aid lawyer who had advised the accused initially - In fact, the accused had legal advice warning him of such police strategy - Respecting the re-enactment, the court noted, contrary to the accused's argument, that he had been re-advised of his right to counsel and was told that his participation was voluntary - Further, a re-enactment was also not a new or non-routine procedure falling outside the expectations of counsel advising an accused - It merely involved the accused demonstrating how he killed the victim and disposed of the body, rather than verbally explaining it - See paragraphs 66 to 71.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - The British Columbia Court of Appeal generally discussed when an accused, who had been properly advised of his rights to counsel, had a right to be re-advised of that right to counsel - The court noted a number of events recognized by the Supreme Court of Canada (R. v. Sinclair) that re-triggered the informational and implementational components of s. 10(b): "New (non-routine) procedures, like participation in a line-up or submitting to a polygraph examination, as these generally will not have been within the contemplation of the lawyer initially consulted ... A change in jeopardy, where the investigation takes a new and more serious turn as events unfold ... If it appears that a detainee who had waived his or her right to counsel may not have understood those rights ... If the police have effectively undermined the legal advice that a detainee has received" - See paragraphs 66 to 67.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - The accused, under arrest for first degree murder, was given access to a phone book, advised that he could call any lawyer that he wanted, was told to call legal aid if he was unsure what to do and was told that after speaking with a legal aid lawyer he could call another lawyer if unsatisfied - The accused asked to call a legal aid lawyer - The lawyer advised the accused of his right to remain silent and was told not to say anything to the police except to identify himself - The lawyer advised that the police would continue to question him and that he should repeatedly tell them that he did not wish to talk with them - The lawyer offered expressions to convey to police the accused's wish to assert his right to counsel - The accused was advised that, inter alia, the police would exaggerate and lie about the evidence they did have, in an attempt to trick him into talking; that they might put someone in his cell to "bug" his conversations; that they would listen to all his conversations except those with a lawyer; that they might ask him to participate in a test as a ruse to get him to talk - The accused told the police that he understood and was satisfied with the advice given, and that he did not need to call another lawyer - The accused subsequently gave statements (confessed when confronted with his admission of guilt in a Mr. Big operation) and participated in a re-enactment of the crime - A jury convicted the accused of first degree murder - On appeal, the accused claimed that his s. 10(b) Charter right to counsel was denied because he was given deficient legal advice by the legal aid lawyer - The British Columbia Court of Appeal held that sufficient legal advice was provided - The accused was aware that he was not obliged to speak with the police or co-operate in their investigation (incl re-enactments), and was told how to exercise those rights - Additionally, he was warned of the police stratagems that the police might use, overtly and surreptitiously, to try to obtain information from him - The accused's right to counsel was not denied - See paragraphs 41 to 65.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3603].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The accused, suspected of murder, was the target of a Mr. Big undercover operation - In audio and video-recorded statements to the undercover officer posing as the crime boss, the accused admitted to carrying out the murder which was planned 1-2 months in advance - A jury convicted the accused of first degree murder - The accused appealed, submitting that the context of what was recorded showed him to be a person of bad character (willing to engage in unspecified criminal activity for money) and that the prejudicial effect of the evidence outweighed its probative value - The British Columbia Court of Appeal held that the trial judge did not err in exercising his discretion to admit the evidence on the ground that its probative value far outweighed its prejudicial effect - This was a very "low-key" Mr. Big operation - The nature of the criminal activity was never made clear and the accused was asked to perform only benign tasks - The accused did not object, at trial or appeal, to the trial judge's instructions to the jury that they could use this evidence only - The jury was clearly instructed that they were prohibited from using the evidence to conclude that the accused was a bad person who could or would have committed the crime for which he was charged - See paragraphs 24 to 40.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 5209].

Police - Topic 3103.1

Powers - Investigation - Effect of accused being remanded into custody - An accused was charged with first degree murder, questioned, then taken before a justice within 24 hours (by video-conference) as required by law - The justice, as required by law, remanded the accused into custody - The remand order specifically authorized the accused's detention in the police lock-up - The accused argued that "after he was remanded by the justice, he was under the 'custody and supervision of the court' and, therefore, it was not open to the police to deal with him as they did [i.e., questioned him, convinced him to participate in a re-enactment]" - The British Columbia Court of Appeal rejected the submission, finding that "a remand order does not have the effect of shielding an accused from otherwise lawful investigative actions" - Where the accused was lawfully remanded into custody at the police station, his position vis-à-vis the investigation was unchanged - The police were not required to re-advise him of his right to counsel and were not required to cease questioning him - See paragraphs 86 to 105.

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - [See Criminal Law - Topic 5209].

Cases Noticed:

R. v. Sinclair (T.T.) (2010), 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 259 C.C.C.(3d) 443; 2010 SCC 35, refd to. [para. 3].

R. v. McCrimmon (D.R.) (2010), 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 259 C.C.C.(3d) 519; 2010 SCC 36, refd to. [para. 4].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 259 C.C.C.(3d) 536; 2010 SCC 37, refd to. [para. 4].

R. v. Redd (V.B.) (2002), 168 B.C.A.C. 304; 275 W.A.C. 304; 165 C.C.C.(3d) 412; 2002 BCCA 325, refd to. [para. 38].

R. v. Bonisteel (R.) (2008), 259 B.C.A.C. 114; 436 W.A.C. 114; 236 C.C.C.(3d) 170; 2008 BCCA 344, refd to. [para. 38].

R. v. Osmar (T.) (2007), 220 O.A.C. 186; 217 C.C.C.(3d) 174; 2007 ONCA 50, refd to. [para. 38].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 45].

R. v. Osmond (G.R.) (2007), 246 B.C.A.C. 274; 406 W.A.C. 274; 227 C.C.C.(3d) 375; 2007 BCCA 470, leave to appeal denied [2008] 1 S.C.R. xii; 385 N.R. 396; 269 B.C.A.C. 319; 453 W.A.C. 319, dist. [para. 57].

Belknap v. Meakes (1989), 64 D.L.R.(4th) 452 (B.C.C.A.), refd to. [para. 61].

R. v. Thompson (N.) (2001), 141 O.A.C. 1; 151 C.C.C.(3d) 339 (Ont. C.A.), refd to. [para. 61].

R. v. Cunningham (D.J.) (2006), 401 A.R. 35; 391 W.A.C. 35; 2006 ABCA 345, refd to. [para. 61].

R. v. Ansari (S.), [2008] B.C.T.C. Uned. F08; 2008 BCSC 1492, refd to. [para. 79].

R. v. Precourt (1976), 39 C.C.C.(2d) 1 (Ont. C.A.), leave to appeal denied [1977] 1 S.C.R. xi, refd to. [para. 79].

R. v. Daunt (G.K.), [2005] Yukon Cases (SC) 34; 31 C.R.(6th) 31; 2005 YKSC 34, refd to. [para. 79].

R. v. Charlie (2009), 196 C.R.R.(2d) 144; 2009 YKTC 82, refd to. [para. 91].

R. v. Bhander (R.S.), [2010] B.C.T.C. Uned. 1239; 2010 BCSC 1239, refd to. [para. 92].

R. v. Hobbins (1980), 54 C.C.C.(2d) 353 (Ont. C.A.), affd. [1982] 1 S.C.R. 553; 41 N.R. 433, refd to. [para. 98].

R. v. Miller (1987), 23 O.A.C. 32; 38 C.C.C.(3d) 252 (C.A.), refd to. [para. 98].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 106].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 107].

R. v. Lauriente (R.M.) et al. (2010), 283 B.C.A.C. 215; 480 W.A.C. 215; 251 C.C.C.(3d) 492; 2010 BCCA 72, refd to. [para. 107].

R. v. Reddy (C.J.) (2010), 282 B.C.A.C. 51; 476 W.A.C. 51; 251 C.C.C.(3d) 151; 2010 BCCA 11, refd to. [para. 108].

R. v. Stanton (N.C.) (2010), 286 B.C.A.C. 207; 484 W.A.C. 207; 254 C.C.C.(3d) 421; 2010 BCCA 208, refd to. [para. 108].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 110].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 88]; sect. 515(11) [para. 87].

Counsel:

P.D. Angly, for the appellant;

J. Duncan, for the respondent.

This appeal was heard on October 19, 2010, at Vancouver, B.C., before Frankel, Tysoe and Neilson, JJ.A., of the British Columbia Court of Appeal.

On January 24, 2011, Frankel, J.A., delivered the following judgment for the Court of Appeal.