R. v. Bennight (R.), (2012) 320 B.C.A.C. 195 (CA)

• Judge: Lowry, Groberman and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 14, 2011
• Jurisdiction: British Columbia
• Citations: (2012), 320 B.C.A.C. 195 (CA);2012 BCCA 190

R. v. Bennight (R.) (2012), 320 B.C.A.C. 195 (CA);

    543 W.A.C. 195

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. MY.026

Regina (respondent) v. Robert Michael Bennight (appellant)

(CA038479; 2012 BCCA 190)

Indexed As: R. v. Bennight (R.)

British Columbia Court of Appeal

Lowry, Groberman and Bennett, JJ.A.

May 3, 2012.

Summary:

The accused was convicted by a jury of second degree murder. He appealed.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused phoned police to ask for assistance for a woman who the accused said had been injured in an attempted robbery - The woman, who was unconscious and had been severely beaten, was in the accused's apartment - She later died from her injuries - The accused was convicted by a jury of second degree murder - He appealed, asserting, inter alia, that the trial judge had erred in finding that the accused had not been detained in breach of s. 9 of the Charter prior to his arrest - The British Columbia Court of Appeal dismissed the appeal - The trial judge first considered whether the accused had been detained at the scene (the accused's apartment) - He found that when the police arrived in response to the accused's phone call, they had an emergency situation on their hands - Officers attempted to speak to the accused, who was the most obvious source of potentially helpful information, in furtherance of their investigation - One of the officer's brief physical contact with the accused was meant to prevent the accused from interfering with the paramedics - To find that a detention crystallized with that contact would be to ignore the circumstances that immediately preceded and ensued - The physical contact followed a verbal confrontation - It could not be said that the accused had "submitted or acquiesced in the deprivation of liberty and reasonably believed that the choice to do otherwise did not exist" - Further, the accused's past experience with police was relevant - The trial judge had not erred in his conclusion that the accused was not detained at the scene - See paragraphs 50 to 60.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused phoned police to ask for assistance for a woman who the accused said had been injured in an attempted robbery - The woman, who was unconscious and had been severely beaten, was in the accused's apartment - She later died from her injuries - The accused was convicted by a jury of second degree murder - He appealed, asserting, inter alia, that the trial judge had erred in finding that the accused had not been detained in breach of s. 9 of the Charter prior to his arrest - The British Columbia Court of Appeal dismissed the appeal - After concluding correctly that the accused was not detained at the scene, the trial judge considered whether a detention occurred at the police station before the accused was arrested there - The accused's apartment was sealed as a crime scene - The officers' request that the accused come to the police station was phrased as an invitation, rather than a demand - The accused was taken to a "soft" interview room and given coffee - The trial judge concluded that a reasonable person would not find that the change of location to the police station amounted to a detention - He considered all of the circumstances and the correct legal principles - There was no error in the trial judge's conclusion that the accused was not detained until the point of arrest - See paragraphs 61 to 64.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - The accused phoned police to ask for assistance for a woman who the accused said had been injured in an attempted robbery - The woman, who was unconscious and had been severely beaten, was in the accused's apartment - She later died from her injuries - The accused was convicted by a jury of second degree murder - He appealed, asserting, inter alia, that the trial judge had erred in admitting a statement ("the third statement") that the accused made to a jail guard following a serious breach of the accused's Charter s. 10(b) right to counsel - The British Columbia Court of Appeal dismissed the appeal - The court rejected the accused's argument that the prior breach which resulted in the exclusion of the accused's "second statement" tainted the third statement - There was no causal connection between the earlier Charter breach and the third statement, which was made spontaneously - The second and third statements were separated by about six hours - Given that there was no link between the statements, the other question was whether there was a direct breach of s. 10(b) - The accused clearly understood that he did not have to speak to police - When he chose to speak to the guard, he did so knowing that he did not and, perhaps, should not speak to police about the events that resulted in his arrest - There was no direct breach nor was the third statement tainted by the earlier breach - See paragraphs 65 to 89.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 4316

Procedure - Jury - General - Challenges for cause - The accused appealed from his conviction for second degree murder, asserting, inter alia, that the trial judge had erred in declining to allow the accused to challenge jurors for bias against mentally ill persons - The British Columbia Court of Appeal dismissed the appeal - The evidence before the trial judge was that the accused had been previously diagnosed with both schizophrenia and psychoses that were secondary to a traumatic brain injury - Given that the trial judge stated that such diagnoses were absent, he had clearly overlooked this evidence - However, that was not the only basis on which the trial judge had refused the application - The party moving to challenge for cause other than racial bias had to establish (1) that a widespread bias existed in the community and (2) that some jurors might be incapable of setting aside this bias, despite trial safeguards - They were referred to as the attitudinal and behavioural components of partiality - The defence evidence fell short of establishing the behavioural component of the test, even if it had established the attitudinal component in the form of widespread bias against people with perceived mental illness - See paragraphs 27 to 49.

Criminal Law - Topic 4375.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding exculpatory statements by accused - The accused phoned police to ask for assistance for a woman who the accused said had been injured in an attempted robbery - The woman, who was unconscious and had been severely beaten, was in the accused's apartment - She later died from her injuries - The accused was convicted by a jury of second degree murder - He appealed, asserting, inter alia, that the trial judge had erred in his instructions to the jury regarding the use that could be made of certain post-offence exculpatory statements made by the accused - The British Columbia Court of Appeal dismissed the appeal - The ultimate question was whether the combined effect of the Crown's closing address and the trial judge's instructions allowed the jury to impermissibly equate disbelief of an accused's statement with his guilt - By pointing out the substantial deficiencies in the accused's statements, the Crown was seeking to discredit the accused's defence that someone else committed the offence - The judge conveyed to the jury that disbelief of the accused's statements did not necessarily lead to a finding of guilt - While the instruction could have been more complete, it did not amount to reversible error - See paragraphs 94 to 105.

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - [See Criminal Law - Topic 4375.1 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4375.1 ].

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - [See Criminal Law - Topic 4375.1 ].

Criminal Law - Topic 5339.2

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Effect of prior inadmissible statements (derived confessions rule) - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 5346

Evidence and witnesses - Confessions and voluntary statements - Form of statement - The accused phoned police to ask for assistance for a woman who the accused said had been injured in an attempted robbery - The woman, who was unconscious and had been severely beaten, was in the accused's apartment - She later died from her injuries - The accused was convicted by a jury of second degree murder - He appealed, asserting, inter alia, that the trial judge had erred in admitting an inculpatory statement that the accused made to a jail guard - The British Columbia Court of Appeal dismissed the appeal - The court rejected the accused's argument that the guard's account of the statement was so vague or incomplete that it should have been excluded - That the guard did not remember the exact words did not in and of itself render the statement inadmissible - The possibility of incompleteness was a matter of weight for the jury - See paragraphs 90 to 93.

Criminal Law - Topic 5359.2

Evidence and witnesses - Confessions and voluntary statements - Evidentiary value of admissible confessions - [See Criminal Law - Topic 5346 ].

Cases Noticed:

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 41].

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. 51].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 53].

R. v. Sinclair (T.T.) (2010), 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 75].

R. v. Wittwer - see R. v. D.H.W.

R. v. D.H.W., [2008] 2 S.C.R. 235; 375 N.R. 217; 255 B.C.A.C. 1; 430 W.A.C. 1; 2008 SCC 33, refd to. [para. 81].

R. v. Robinson (C.L.) (2000), 133 B.C.A.C. 98; 217 W.A.C. 98; 2000 BCCA 75, refd to. [para. 83].

R. v. Plaha (B.) (2004), 189 O.A.C. 376; 188 C.C.C.(3d) 289; 24 C.R.(6th) 360 (C.A.), refd to. [para. 83].

R. v. Wilson (W.C.) (2001), 154 B.C.A.C. 126; 252 W.A.C. 126; 2001 BCCA 391, affd. [2002] 3 S.C.R. 629; 298 N.R. 343; 175 B.C.A.C. 24; 289 W.A.C. 24; 2002 SCC 69, refd to. [para. 88].

R. v. Ferris (J.M.) (1994), 149 A.R. 1; 63 W.A.C. 1 (C.A.), affd. [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108, refd to. [para. 91].

R. v. Kennealy (1972), 6 C.C.C.(2d) 390 (B.C.C.A.), refd to. [para. 92].

R. v. Richards (D.B.) (1997), 87 B.C.A.C. 21; 143 W.A.C. 21; 6 C.R.(5th) 154 (C.A.), refd to. [para. 92].

R. v. Hein (A.D.) (2008), 252 B.C.A.C. 206; 422 W.A.C. 206; 2008 BCCA 109, refd to. [para. 102].

R. v. Perlett (J.D.) (2006), 214 O.A.C. 264; 212 C.C.C.(3d) 11 (C.A.), leave to appeal denied [2007] 3 S.C.R. xiii; 376 N.R. 400; 245 O.A.C. 398, refd to. [para. 103].

Counsel:

P.C. Rankin and M.B. Rankin, for the appellant;

J. Duncan, for the respondent.

This appeal was heard at Vancouver, B.C., on November 14, 2011, by Lowry, Groberman and Bennett, JJ.A., of the British Columbia Court of Appeal. On May 3, 2012, Bennett, J.A., delivered the following reasons for judgment for the court.