R. v. D.H.W., (2007) 242 B.C.A.C. 230 (CA)

• Judge: Saunders, Levine and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 30, 2007
• Jurisdiction: British Columbia
• Citations: (2007), 242 B.C.A.C. 230 (CA);2007 BCCA 275

R. v. D.H.W. (2007), 242 B.C.A.C. 230 (CA);

    400 W.A.C. 230

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. MY.030

Regina (respondent) v. D.H.W. (appellant)

(CA034424; 2007 BCCA 275)

Indexed As: R. v. D.H.W.

British Columbia Court of Appeal

Saunders, Levine and Kirkpatrick, JJ.A.

May 10, 2007.

Summary:

The accused appealed his convictions on three counts of sexual touching.

The British Columbia 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 a publication ban imposed under s. 486.4 of the Criminal Code.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - The accused was charged with, inter alia, three counts of sexual touching - At trial, a police officer (Skrine) testified that there were Charter issues (s. 10(b) breaches) respecting two statements that the accused had given to two different officers (Ghadban and Helgason) respecting a "bizarre" account of a sexual encounter with two of the complainants - Helgason had been unaware that Ghadban had already interviewed the accused - Five months after Ghadban's interview, in an attempt to get an untainted statement, Skrine approached the accused as if he had no knowledge of the prior statements - Without the accused's knowledge, Ghadban monitored the interview - After the accused repeatedly stated that his lawyer had told him not to speak to the police and that he had already told Ghadban the story, Skrine informed the accused that Ghadban had already told him the story - The accused the repeated the account to Skrine - The trial judge admitted the third statement, holding that it was voluntary and not tainted by the prior statements - The British Columbia Court of Appeal dismissed an appeal - The police were not obligated to inform the accused of the problems with the prior statements - The three statements could not reasonably be said to be part of the same transaction or course of conduct - The fact of the previous s. 10(b) breaches triggered the third interview, but did not otherwise connect the statements - The accused was content to have Skrine speak with Ghadban - The third statement was not obtained in a manner that infringed the Charter - Deference was owed to the trial judge's determination - See paragraphs 37 to 61.

Civil Rights - Topic 8361.1

Canadian Charter of Rights and Freedoms - Denial of rights - Effect of - Prior violations - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 5339.2

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Effect of prior inadmissible statements - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 5341

Evidence and witnesses - Confessions and voluntary statements - Whether voluntary and admissible - Review of ruling of trial judge by appeal court - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 37 C.C.C.(3d) 97, refd to. [para. 33].

R. v. Robinson (C.L.) (2000), 133 B.C.A.C. 98; 217 W.A.C. 98; 142 C.C.C.(3d) 521 (C.A.), refd to. [para. 38].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479, refd to. [para. 38].

R. v. L.R.I. and E.T., [1993] 4 S.C.R. 504; 159 N.R. 363; 37 B.C.A.C. 48; 60 W.A.C. 48; 86 C.C.C.(3d) 289, refd to. [para. 38].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1; 92 C.C.C.(3d) 423, refd to. [para. 38].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161; 107 C.C.C.(3d) 481, refd to. [para. 38].

R. v. Caputo (E.) (1997), 98 O.A.C. 30; 114 C.C.C.(3d) 1 (C.A.), refd to. [para. 38].

R. v. Plaha (B.) (2004), 189 O.A.C. 376; 188 C.C.C.(3d) 289 (C.A.), refd to. [para. 42].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 44].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161, refd to. [para. 44].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 57 C.C.C.(3d) 1, refd to. [para. 47].

R. v. Spencer (B.S.) (2007), 358 N.R. 278; 237 B.C.A.C. 1; 392 W.A.C. 1; 2007 SCC 11, refd to. [para. 60].

R. v. Horton (D.F.) (1999), 120 B.C.A.C. 70; 196 W.A.C. 70; 133 C.C.C.(3d) 340 (C.A.), refd to. [para. 69].

R. v. Dvorak (J.) (2001), 152 B.C.A.C. 149; 250 W.A.C. 149; 156 C.C.C.(3d) 286 (C.A.), refd to. [para. 70].

R. v. P.E.C., [2005] 1 S.C.R. 290; 332 N.R. 293; 211 B.C.A.C. 48; 349 W.A.C. 48; 196 C.C.C.(3d) 351, refd to. [para. 74].

Counsel:

G.D. McKinnon, Q.C., for the appellant;

B.A. MacLean, for the respondent.

This appeal was heard at Vancouver, British Columbia, on March 30, 2007, by Saunders, Levine and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. Kirkpatrick, J.A., delivered the following judgment for the court on May 10, 2007.