R. v. Bhandher (R.S.)

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Finch, C.J.B.C., Saunders and MacKenzie, JJ.A.
• Citation: 2012 BCCA 441,(2012), 329 B.C.A.C. 147 (CA)
• Date: 20 June 2012

R. v. Bhandher (R.S.) (2012), 329 B.C.A.C. 147 (CA);

    560 W.A.C. 147

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. NO.011

Regina (respondent) v. Raminder Bhander (appellant)

(CA038635; 2012 BCCA 441)

Indexed As: R. v. Bhandher (R.S.)

British Columbia Court of Appeal

Finch, C.J.B.C., Saunders and MacKenzie, JJ.A.

November 7, 2012.

Summary:

The accused was charged with first degree murder. The accused argued that statements made to police after his arrest while he was in custody over the weekend in police cells were not voluntary and obtained in violation of his ss. 7, 9, and 10(b) Charter Rights. He sought an exclusion of the statements.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 1239, dismissed the application and admitted the statements. The accused was convicted by a jury of second degree murder. The accused appealed, arguing that the trial judge erred in finding that his ss. 7, 9, 10(b) and 11 Charter rights were not violated.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: there are several related cases involving this accused.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to a just and fair trial - The accused was arrested on a Friday for murder and attempted murder - He spoke to counsel and later had a 40 minute face-to-face meeting with counsel - On Saturday, he was charged with first degree murder - A remand hearing was conducted by teleconference - The Judicial Justice of the Peace recommended that the accused be transferred to the Surrey Pre-Trial Centre pending his court appearance on Monday - The police did not follow the recommendation - The accused's request to speak to counsel again and counsel's request to speak to the accused were not met - The accused was interviewed and eventually made incriminating statements - The accused argued that the refusal of a second consultation with counsel after his remand breached his ss. 7 and 11(d) Charter rights - An application judge rejected the argument - The accused was convicted of second degree murder - He appealed - He argued that the refusal of a second consultation with counsel infringed his right to the effective assistance of counsel, a principle that derived from the evolution of the common law, s. 650(3) of the Criminal Code and ss. 7 and 11 of the Charter - The British Columbia Court of Appeal rejected the argument - The accused's proposition would bring the issue of legal assistance to an accused into the investigative process, as contrasted with the court processes - To date, that proposition had not been accepted by Canadian courts - The careful balance between the rights of an accused and the community's interest in having crimes investigated, tilted strongly against this broad submission - There was no free-standing right to counsel in the investigative process - See paragraphs 47 to 54.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - [See Civil Rights - Topic 3157 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was arrested on a Friday for murder and attempted murder - He spoke to counsel and later had a 40 minute face-to-face meeting with counsel - On Saturday, he was charged with first degree murder - A remand hearing was conducted by teleconference - The Judicial Justice of the Peace recommended that the accused be transferred to the Surrey Pre-Trial Centre pending his court appearance on Monday - The police did not follow the recommendation - The accused's request to speak to counsel again and counsel's request to speak to the accused were not met - The accused was interviewed and eventually made incriminating statements - An application judge rejected the accused's argument that his s. 9 Charter rights were violated - The accused was convicted of second degree murder - He appealed - He argued that the statements were taken while his rights under s. 9 of the Charter were violated, in that no attempt was made to move him to the pre-trial centre as the Judicial Justice of the Peace had recommended, and, at the same time, he was denied access to legal assistance - The British Columbia Court of Appeal rejected the argument - The accused's detention did not violate any terms of the remand order - The order, having been made in accordance with the Criminal Code, provided for the accused's further detention without specifying location - It provided for his appearance Monday morning - None of this met the description of an arbitrary detention, nor provided a principled basis, either to find the accused's s. 9 rights were violated or to exclude the statement voluntarily given - See paragraphs 55 to 58.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was arrested on a Friday for murder and attempted murder - He spoke to counsel and later had a 40 minute face-to-face meeting with counsel - On Saturday, he was charged with first degree murder - A remand hearing was conducted by teleconference - The accused's lawyer requested that the accused be transferred from the police cells to the Surrey Pre-Trial Centre pending his court appearance on Monday - The Judicial Justice of the Peace held she had no jurisdiction to do that, but recommended that it be done - The police did not follow the recommendation - The accused's request to speak to counsel again and counsel's request to speak to the accused were not met - The accused was interviewed and eventually made incriminating statements - An application judge held that the accused's statements were not obtained by a breach of his s. 10(b) Charter rights - The accused was convicted of second degree murder - He appealed - He argued that the application judge's appreciation of the extent of his s. 10(b) rights was overly narrow - The charge of first degree murder and remand into custody resulted in an "objectively observable" change in circumstances such that he had a right to re-consult a lawyer - The British Columbia Court of Appeal rejected the argument - There was no evidence that the fact of the charge affected the accused's understanding of his right to silence or the operation of his free will - Nor was there reason to consider that the legal advice he received was deficient in any way - The fact of the remand order also did not change the accused's jeopardy from that for which he was arrested - He did not misunderstand his right to silence - See paragraphs 28 to 46.

Cases Noticed:

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 22].

R. v. Sinclair (T.T.) (2008), 252 B.C.A.C. 288; 422 W.A.C. 288; 2008 BCCA 127, refd to. [para. 22].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 57 C.C.C.(3d) 1, refd to. [para. 22].

R. v. Ekman (G.) (2000), 140 B.C.A.C. 120; 229 W.A.C. 120; 146 C.C.C.(3d) 346; 2000 BCCA 414, refd to. [para. 23].

R. v. Logan, Logan and Johnson (1988), 30 O.A.C. 321; 46 C.C.C.(3d) 354 (C.A.), affd. [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330; 58 C.C.C.(3d) 391, refd to. [para. 23].

R. v. Ertmoed (S.R.), [2002] B.C.T.C. 806; 2002 BCSC 806, refd to. [paras. 23, 39].

R. v. Baidwin (J.S.), 2001 BCSC 1412, affd. [2003] B.C.A.C. Uned. 104; 2003 BCCA 351, refd to. [para. 23].

R. v. Evans, [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 24].

R. v. Ansari (S.), [2008] B.C.T.C. Uned. F08; 2008 BCSC 1492, refd to. [para. 24].

R. v. Ashmore (J.A.) (2011), 298 B.C.A.C. 240; 505 W.A.C. 240; 2011 BCCA 18, refd to. [para. 25].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 29].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 30].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 30].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 31].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233; 63 C.C.C.(3d) 313, refd to. [para. 36].

R. v. Pickton (R.W.), [2006] B.C.T.C. Uned. E42; 2006 BCSC 995, refd to. [para. 39].

Kirby v. Illinois (1972), 406 U.S. 682, refd to. [para. 49].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 49].

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, refd to. [para. 49].

Christie v. British Columbia (Attorney General) et al., [2007] 1 S.C.R. 873; 361 N.R. 322; 240 B.C.A.C. 1; 398 W.A.C. 1; 2007 SCC 21, refd to. [para. 51].

R. v. Chung (K.W.) (2011), 302 B.C.A.C. 266; 511 W.A.C. 266; 276 C.C.C.(3d) 393; 2011 BCCA 131, refd to. [para. 56].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 56].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 56].

R. v. Precourt (1976), 39 C.C.C.(2d) 311 (Ont. C.A.), leave to appeal refused [1977] 1 S.C.R. xi; 15 N.R. 90, refd to. [para. 57].

Counsel:

I. Donaldson, Q.C., and C. McLeod, for the appellant;

M. Levitz, Q.C., for the respondent.

This appeal was heard on June 20, 2012, before Finch, C.J.B.C., Saunders and MacKenzie, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Saunders, J.A., on November 7, 2012.