R. v. Briscoe (M.E.), 2012 ABQB 111

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 21, 2012
• Citations: 2012 ABQB 111;(2012), 532 A.R. 13 (QB)

R. v. Briscoe (M.E.) (2012), 532 A.R. 13 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.018

Her Majesty the Queen (Crown/respondent) v. Michael Erin Briscoe (accused/applicant)

(100723519Q1; 2012 ABQB 111)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Yamauchi, J.

February 21, 2012.

Summary:

The accused was charged with the first degree murder, aggravated sexual assault and kidnapping of a 13 year old girl. 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 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).

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 3126

Trials, due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - The accused was charged with first degree murder, aggravated sexual assault and kidnapping - A voir dire was held to determine the admissibility of statements the accused made to an undercover officer placed in the accused's cell - There was no audio or video recording of the statements - The accused argued that to admit the officer's evidence of the statements violated his s. 11(d) Charter right to a fair trial, because he would not be able to make a full answer and defence due to the fallibility of the officer's memory and the unavailability of reliable evidence as to the full context - The Alberta Court of Queen's Bench held that the accused's right to a fair trial was not violated - The evidence was admissible, but the court would subsequently "determine the weight it places on that testimony if it is required to do so" - See paragraphs 52 to 55.

Civil Rights - Topic 3133

Trials, due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3126 ].

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 Alberta Court of Queen's Bench 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 to Waldorf under s. 24(2) of the Charter - See paragraphs 57 to 132.

Civil Rights - Topic 8368

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

Conflict of Laws - Topic 8

General - Doctrine of comity - The accused's 2007 acquittal was overturned on appeal and a re-trial was ordered - In the first trial, the trial judge ruled in a voir dire on the admissibility of statements to police (portion of statements made to one officer excluded where the accused's right to counsel was infringed) - The admissibility of the statements was not in issue, or commented on, on the appeal - On a voir dire in the 2011 re-trial, the issue was whether judicial comity required that the trial judge's ruling be given significant weight - The Alberta Court of Queen's Bench, contrary to the ruling in the first trial, ruled that none of the statements were obtained in violation of the accused's right to counsel - The court held that a trilogy of subsequent Supreme Court of Canada cases on the issue of the right to counsel justified a decision contrary to that of the trial judge at the initial trial - Subsequent developments in the law called for a different conclusion on the Charter issue - See paragraphs 6 to 15, 120.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was interviewed twice by police - The next day, the accused asked to speak with the interviewing officer again - A short portion of the commencement of that interview was "missing" on the video-tape of the interview - The officer acknowledged that he may have "insulted" the accused, but testified that he did not threaten the accused or make any promises or inducements - The officer testified that the "missing" portion was very short and that he did 99% of the talking - The accused argued that given the "missing" portion of the video-tape, the Crown failed to prove that the subsequent statement was voluntary - The Alberta Court of Queen's Bench held that the Crown proved the statement was voluntary - The court stated that the officer was forthright and credible and accepted his testimony that there were no threats, promises or inducements - When the videotape did commence, there was nothing to indicate that the accused was intimidated or enthusiastic about the questioning - His demeanour remained unchanged from the questioning the previous day - See paragraphs 47 to 51.

Cases Noticed:

R. v. Perreault (M.D.) (2010), 497 A.R. 168; 2010 ABQB 714, refd to. [para. 10].

Hansard Spruce Mills Ltd., Re, [1954] 4 D.L.R. 590; 34 C.B.R. 202 (B.C.S.C.), refd to. [para. 10].

Searles v. Alberta (Minister of Health and Wellness) (2010), 485 A.R. 166; 2010 ABQB 157, affd. (2011), 502 A.R. 198; 517 W.A.C. 198; 2011 ABCA 144, refd to. [para. 12].

R. v. Sipes (D.G.), [2009] B.C.T.C. Uned. 285; 2009 BCSC 285, refd to. [para. 13].

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 15].

R. v. Ilesic (B.C.) (2000), 271 A.R. 195; 234 W.A.C. 195; 2000 ABCA 254, refd to. [para. 15].

British Columbia v. Henfrey Samson Belair Ltd., [1989] 2 S.C.R. 24; 97 N.R. 61, refd to. [para. 15].

Crane et al. v. Brentridge Ford Sales Ltd. et al. (2008), 437 A.R. 169; 433 W.A.C. 169; 2008 ABCA 216, refd to. [para. 15].

R. v. Tkachuk (E.A.) (2001), 277 A.R. 295; 242 W.A.C. 295; 2001 ABCA 66, 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, refd to. [para. 48].

R. v. Moore-McFarlane (G.C.) et al. (2001), 152 O.A.C. 120; 56 O.R.(3d) 737; 47 C.R.(5th) 203 (C.A.), refd to. [para. 49].

R. v. Ahmed (A.) (2002), 166 O.A.C. 254; 170 C.C.C.(3d) 27 (C.A.), refd to. [para. 49].

R. v. Harrer (H.M.) (1995), 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 1995 CarswellBC 651 (S.C.C.), refd to. [para. 54].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 118 D.L.R.(4th) 83, refd to. [para. 58].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 2000 ABCA 301, refd to. [para. 59].

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, refd to. [para. 64].

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, refd to. [para. 64].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1, refd to. [para. 64].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 90].

R. v. Wu (2010), 44 Alta. L.R.(5th) 333; 2010 ABCA 337, refd to. [para. 99].

R. v. S.E.V. (2009), 448 A.R. 351; 447 W.A.C. 351; 2009 ABCA 108, refd to. [para. 105].

R. v. Nelson (D.A.) (2010), 490 A.R. 271; 497 W.A.C. 271; 2010 ABCA 349 (C.A.), refd to. [para. 106].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 142 D.L.R.(4th) 577, refd to. [para. 107].

R. v. Paternak (C.D.), [1996] 3 S.C.R. 607; 203 N.R. 250; 187 A.R. 395; 127 W.A.C. 395, refd to. [para. 109].

R. v. Chalmers (J.) (2009), 247 O.A.C. 250; 2009 ONCA 268, refd to. [para. 110].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 122].

R. v. Simpenzwe (P.N.) (2009), 512 A.R. 49; 2009 ABQB 579, refd to. [para. 124].

Counsel:

Robert Robenhaar, John D. Watson and Douglas Taylor (Mega Prosecutions, Alberta Justice and Attorney General), for the Crown, respondent;

Charles B. Davison, for the accused, applicant.

This application was heard on December 5-8, 2011, before Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on February 21, 2012.