R. v. Briscoe (M.E.), 2015 ABCA 2

• Judge: O'Brien, Watson and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 08, 2015
• Citations: 2015 ABCA 2;(2015), 593 A.R. 102

R. v. Briscoe (M.E.) (2015), 593 A.R. 102; 637 W.A.C. 102 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.073

Her Majesty the Queen (respondent) v. Michael Erin Briscoe (appellant)

(1203-0083-A; 2015 ABCA 2)

Indexed As: R. v. Briscoe (M.E.)

Alberta Court of Appeal

O'Brien, Watson and Brown, JJ.A.

January 8, 2015.

Summary:

The accused was charged with the first degree murder, aggravated sexual assault and kidnapping of a 13 year old girl. The Crown's theory was that the accused was guilty either as a principal offender or as a party to the offences. A voir dire was held to determine the admissibility of statements the accused made in two interviews with Constable Brophy, one interview with Constable Waldorf and to an undercover constable placed in the accused's cell.

The Alberta Court of Queen's Bench, in a judgment reported (2007), 413 A.R. 29, held that the two statements made to Constable Brophy were admissible, as were the statements made to the undercover constable. A portion of the statements made to Constable Waldorf were inadmissible due to a violation of the accused's s. 10(b) Charter right to counsel. The accused was subsequently acquitted at trial ((2007), 413 A.R. 53), the acquittals were overturned on appeal and a new trial was ordered ((2008), 437 A.R. 301; 433 W.A.C. 301) and the Supreme Court of Canada affirmed the ordering of a new trial ((2010), 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86). On the retrial, the accused again sought exclusion of the statements made to the two R.C.M.P. officers and the undercover officer. At issue was the weight to be given to the first trial judge's ruling on the admissibility of the statements (i.e., judicial comity), particularly where the ruling was neither appealed nor commented on by the Court of Appeal in ordering a re-trial. The Crown agreed that significant weight should be given to the ruling, but argued that the law supporting the ruling had changed significantly since that ruling in 2007, such that the present court might have to reach a different conclusion. Apart from the judicial comity issue, the accused raised three issues: (1) whether his statements to Brophy following a short "missing" portion of the videotape were voluntary; (2) whether the failure to record the accused's conversations with the undercover officer resulted in unfairness; and (3) whether the accused's s. 10(b) Charter right to counsel was violated by not allowing him to contact his counsel of choice following his questioning by Brophy and prior to questioning by Waldorf.

The Alberta Court of Queen's Bench, in a judgment reported (2012), 532 A.R. 13, held that none of the statements were obtained in violation of the accused's s. 10(b) Charter right to counsel. In any event, if the statements to Waldorf were obtained in violation of the accused's right to counsel, the court would not have excluded the statements from evidence under s. 24(2).

The Alberta Court of Queen's Bench, in a judgment reported (2012), 532 A.R. 48, found the accused guilty of first degree murder, aggravated sexual assault and kidnapping. Although the Crown failed to prove beyond a reasonable doubt that the accused directly caused the girl's death, the accused was guilty as a party to the offences for aiding those persons who actually committed the offences. The accused appealed his convictions.

The Alberta Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The Alberta Court of Appeal stated that "The object of s. 10(b) of the Charter is to ensure a level legal terrain for the detainee ... This levelling of legal terrain is not the same thing as dictating a guaranteed Constitutional right of the detainee to appreciate his evidential situation when he intersects with the police. Apart from the category of cases where the detainee demonstrates no initial understanding of the right in the first instance and it must be re-explained, the other two categories of second chance cases ... relate to (a) some 'new and serious turn' respecting the charges faced by the detainee hence affecting the person's legal jeopardy , or (b) some special form of evidence gathering situation which significantly differs from what counsel could be reasonably expected to have told the detainee about. Such new procedures would not be aspects of the predictable police questioning, but would be matters for which the detainee's participation is essential and for which the detainee would have a right to decline participation or at least a right to understand what is involved before participating. As to the latter, it might be noted parenthetically that there will be at least one type of investigation that police will not reveal to the detainee, namely the use of a 'listening post' in a cell block (either technological or human)." - See paragraphs 47 to 48.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - An accused arrested in the death of a teenager spoke with a legal aid lawyer (after being unable to reach Lennon, his lawyer of choice) before his first two interviews with Constable Brophy - After the second interview, the accused indicated that he did not wish to speak with Brophy further and asked to call his lawyer - Constable Waldorf confirmed that the accused had already spoken with a lawyer, but the accused responded "Thirty seconds, but that wasn't my lawyer" - Waldorf said, "Good enough" and interviewed the accused - On a voir dire, the accused argued that Brophy and Waldorf infringed his s. 10(b) Charter right to counsel and that the statements made to Waldorf should be excluded under s. 24(2) - The trial judge held that Lennon was the accused's counsel of choice - However, he exercised his right to contact Lennon, who was unavailable, freely chose to call another lawyer, and indicated he was satisfied with that advice - Where there was no new and non-routine procedure involving the accused, no change in jeopardy, and no reason to question the accused's understanding of his Charter rights, once the accused exercised his right to counsel by speaking with the Legal Aid lawyer, his right to counsel was not infringed where he subsequently wished a second consultation with his first choice of counsel (Lennon) - Unlike the ruling on the voir dire in his first trial (this was a retrial following an overturned acquittal), the court ruled that the accused's s. 10(b) right to counsel was not infringed - In any event, applying the Grant factors (SCC), the court would not have excluded the statements under s. 24(2) of the Charter - The accused appealed - He argued that when Brophy raised the possibility of providing a DNA sample or taking a polygraph, neither of which occurred, the "prospect" of a new "non-routine procedure" arose and his right to counsel was re-engaged - The Alberta Court of Appeal held that the request for a DNA sample was a "non-routine procedure" that triggered the accused's right to consult with counsel again before consenting - However, the trial judge did not err in finding that the statement given by the accused the next day (at his request) would not be excluded under s. 24(2) - There was no nexus between the Charter breach and the statement obtained - In any event, the Grant factors supported not excluding the statement - See paragraphs 34 to 80, 87 to 96, 112.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - The Alberta Court of Appeal stated that if an accused "had, in his legal consultation, received advice against participating in a re-enactment or a lineup or against providing samples or against taking a polygraph examination, further advice from counsel would not have been required to assure his legal balance. ... If, on the other hand, the appellant had not received such advice, the police would have no way of knowing this. ... The police were not entitled to nose into the sufficiency of the [accused's] legal advice. There is no evident clear policy reason to enforce (against the police duty to investigate crime) a police obligation to re-introduce the topic of right to counsel based on supposition that there may have been a shortfall in the legal advice given to the detainee by the counsel he spoke with before" - See paragraph 46.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See second Civil Rights - Topic 4604 ].

Criminal Law - Topic 2744

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes aiding and abetting - The 13 year old victim was lured to an isolated golf course under false pretences with the intention of murdering her - The victim was first sexually assaulted - The accused was charged with first degree murder, aggravated sexual assault and kidnapping as a principal offender or as a party to the offences - The trial judge found the accused guilty as a party for "aiding" the principal offenders notwithstanding that he did not directly cause the victim's death - The accused knew the principal offender (Laboucan) intended to lure and kill the victim - The accused transported the group to a destination known to him and Laboucan ahead of time - The accused knew that Laboucan was capable of killing, as he was present when the principal offender similarly lured and killed another victim two days earlier - He knew the stated intent to kill someone was not an idle threat - Respecting the murder and kidnapping, the accused aided the principal offenders by transporting the group to the planned murder location with knowledge that they were not going to a party or rave as falsely represented to the victim by Laboucan and that Laboucan's plan was to kill the victim - Respecting the murder, the accused also aided Laboucan by providing the tools used as murder weapons - Respecting the sexual assault, the accused aided Laboucan by trying to calm the victim down prior to the assault so that Laboucan could rape her and to try to prevent any third parties from hearing her screams - The accused appealed on the ground that he might not have known that the victim was ignorant of the fact that there was no rave that they were going to when he drove her there; that the trial judge erred as to where he was when the victim was initially lied to - The Alberta Court of Appeal dismissed the appeal - The accused's culpability was not avoided if he was not personally present when the girl was lied to - There was no error in inferring that the accused knew that the victim was lured to the location on the basis of a false promise of a rave or party - The accused knew he was not lawfully transporting the victim with her consent - See paragraphs 19 to 33.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 2].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 397; 400 N.R. 200; 477 A.R. 70; 483 W.A.C. 70; 2010 SCC 12, refd to. [para. 5].

R. v. Laboucan (J.W.) - see R. v. Briscoe (M.E.) et al.

R. v. S.R.B., [2009] 3 S.C.R. 638; 396 N.R. 132; 469 A.R. 185; 470 W.A.C. 185; 2009 SCC 60, refd to. [para. 6].

R. v. Bird - see R. v. S.R.B.

R. v. Williams (M.B.) (2008), 437 A.R. 325; 433 W.A.C. 325; 2008 ABCA 317, refd to. [para. 6].

R. v. D.D.T., [2008] A.R. Uned. 588; 2008 ABQB 533, refd to. [para. 6].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 15].

R. v. Grandinetti (C.H.) (2003), 339 A.R. 52; 312 W.A.C. 52; 2003 ABCA 307, affd. [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 15].

R. v. Dionisi (A.P.) (2012), 519 A.R. 313; 539 W.A.C. 313; 2012 ABCA 20, refd to. [para. 15].

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 15].

R. v. Vuozzo (A.B.) et al. (2013), 544 A.R. 271; 567 W.A.C. 271; 2013 ABCA 130, leave to appeal refused [2013] S.C.C.A. No. 314, refd to. [para. 15].

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. 15].

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. 16].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 16].

R. v. Abdulle (M.A.) (2014), 569 A.R. 142; 606 W.A.C. 142; 2014 ABCA 52, refd to. [para. 16].

R. v. Huynh (D.L.) (2013), 566 A.R. 3; 597 W.A.C. 3; 2013 ABCA 416, refd to. [para. 16].

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R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83, refd to. [para. 24].

R. v. Hernandez (J.) et al., [2012] 2 S.C.R. 411; 433 N.R. 77; 324 B.C.A.C. 40; 551 W.A.C. 40; 2012 SCC 40, refd to. [para. 24].

R. v. Vu - see R. v. Hernandez (J.) et al.

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 25].

R. v. Hutchinson (C.J.), [2014] 1 S.C.R. 346; 454 N.R. 247; 342 N.S.R.(2d) 348; 1083 A.P.R. 348; 2014 SCC 19, refd to. [para. 25].

R. v. Metcalfe (1983), 10 C.C.C.(3d) 114 (B.C.C.A.), refd to. [para. 26].

R. v. Oakley (1977), 4 A.R. 103; 39 C.C.C.(2d) 436 (C.A.), refd to. [para. 27].

Eberling v. State (1894), 35 N.E. 1023, refd to. [para. 27].

R. v. Johnson (1984), 65 N.S.R.(2d) 54; 147 A.P.R. 54 (C.A.), leave to appeal denied (1985), 58 N.R. 319 (S.C.C.), refd to. [para. 27].

R. v. MacFie (B.S.) (2001), 277 A.R. 86; 242 W.A.C. 86; 2001 ABCA 34, refd to. [para. 29].

R. v. Tremblay (1997), 117 C.C.C.(3d) 86 (Q.C.C.A.), refd to. [para. 31].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1, refd to. [para. 31].

R. v. Richer (R.J.), [1994] 2 S.C.R. 486; 168 N.R. 198; 155 A.R. 210; 73 W.A.C. 210, refd to. [para. 31].

R. v. S.J.B. (2002), 312 A.R. 313; 281 W.A.C. 313; 2002 ABCA 143, refd to. [para. 31].

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R. v. Wu (2010), 266 C.C.C.(3d) 482; 2010 ABCA 337, refd to. [para. 40].

R. v. Ashmore (J.A.) (2011), 298 B.C.A.C. 240; 505 W.A.C. 240; 267 C.C.C.(3d) 108; 2011 BCCA 18, leave to appeal denied (2012), 432 N.R. 392; 322 B.C.A.C. 320; 549 W.A.C. 1 (S.C.C.), refd to. [para. 42].

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

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R. v. Baidwin (J.S.), 2001 BCSC 1412, affd. [2003] B.C.A.C. Uned. 104; 2003 BCCA 351, leave to appeal denied (2004), 328 N.R. 199; 208 B.C.A.C. 158; 344 W.A.C. 158 (S.C.C.), refd to. [para. 58].

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R. v. Bhandher (R.S.) (2012), 329 B.C.A.C. 147; 560 W.A.C. 147; 292 C.C.C.(3d) 545; 2012 BCCA 441, refd to. [para. 62].

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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. 66].

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R. v. Ngai (K.W.) (2010), 474 A.R. 230; 479 W.A.C. 230; 2010 ABCA 10, refd to. [para. 71].

R. v. K.W.J. (2012), 524 A.R. 75; 545 W.A.C. 75; 252 C.R.R.(2d) 141; 2012 NWTCA 3, refd to. [para. 72].

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R. v. Saeed (A.H.) (2014), 577 A.R. 143; 613 W.A.C. 143; 2014 ABCA 238, refd to. [para. 75].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 76].

R. v. Taylor (J.K.) (2014), 460 N.R. 101; 572 A.R. 81; 609 W.A.C. 81; 311 C.C.C.(3d) 285; 2014 SCC 50, refd to. [para. 77].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1, refd to. [para. 77].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 86].

R. v. Manninen, [1987] S.C.R. 1233; 76 N.R. 198, refd to. [para. 86].

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. 102].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1, refd to. [para. 104].

Counsel:

S.D. Houghson, Q.C., for the respondent;

D.F. Bullerwell, for the appellant.

This appeal was heard on April 29, 2014, at Edmonton, Alberta, before O'Brien, Watson and Brown, JJ.A., of the Alberta Court of Appeal.

On January 8, 2015, the judgment of the court was delivered and the following opinions were filed:

Watson, J.A. - see paragraphs 1 to 80;

O'Brien, J.A. - see paragraphs 81 to 110;

Brown, J.A. - see paragraphs 111 to 114.