R. v. Earhart (B.A.), (2011) 313 B.C.A.C. 226 (CA)

• Judge: Newbury, Levine and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 01, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 313 B.C.A.C. 226 (CA);2011 BCCA 490

R. v. Earhart (B.A.) (2011), 313 B.C.A.C. 226 (CA);

    533 W.A.C. 226

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. DE.006

Regina (respondent) v. Beverly Ann Earhart (appellant)

(CA038062; 2011 BCCA 490)

Indexed As: R. v. Earhart (B.A.)

British Columbia Court of Appeal

Newbury, Levine and Bennett, JJ.A.

December 1, 2011.

Summary:

The accused was convicted of first degree murder following a 16 day jury trial. Prior to trial, in three separate voir dires, the trial judge ruled that two statements and a recording of one of those statements were admissible. The accused appealed her conviction, arguing that the trial judge erred in admitting the statements and the recording.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Criminal Law - Topic 5284.1 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - The accused was arrested, charged with murder, then released on bail - Police undertook a "Mr. Big" undercover operation - The accused accepted an invitation to go to a hotel to meet with the undercover officers for a job interview - The accused was asked about the murder under the pretence that the undercover officers could make the charge "go away" - The accused admitted that she planned the murder and that others carried it out - The confession was video-taped - The accused claimed that the statement and video recording were inadmissible, as the statement was obtained in violation of her s. 7 Charter right to silence and obtained by the use of police trickery and deceit - The British Columbia Court of Appeal held that the trial judge did not err in admitting the statement and the recording - The s. 7 right to silence did not extend to a person arrested, charged and released on bail - The accused was neither detained nor under the control of the state when she gave a statement to the undercover officers - The police tricks and deceit used in the Mr. Big operation were not likely to shock the community nor render the accused's statement not free and voluntary - See paragraphs 20 to 26, 59 to 78.

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 5284.1

Evidence - Witnesses - Interception of private communications (incl. video surveillance) - Authority for - "Resort to" clause - The basket clause of a wiretap authorization authorized police to intercept the accused's communications "at any other place or premises, either mobile or stationary, in the Province of British Columbia or elsewhere in Canada, resorted to or used by any of the said persons" - Police obtained authorization to intercept the communications of the accused and others - The accused went to a hotel pursuant to an invitation for a job interview with undercover officers engaged in a "Mr. Big" operation - The accused's admission that she planned the murder of her common law spouse was recorded - The accused argued that the hotel fell outside the scope of the "resorted to" clause where she was lured there by police, who should have obtained a new authorization naming the hotel as a place where her communications could be intercepted - The British Columbia Court of Appeal rejected the argument - The Criminal Code permitted the interception of communications at places unknown at the time the authorization was obtained - The police were not required to obtain a fresh authorization upon selecting the hotel as the location for the Mr. Big scenario to take place - The court rejected the argument that the police were not entitled to rely on the "resorted to" provision in the basket clause when they invited the target to the location where the interception would take place - The trial judge did not err in admitting the statement - There was no unreasonable search and seizure in relation to the interception and recording of the admission - See paragraphs 79 to 101.

Criminal Law - Topic 5295.3

Evidence - Witnesses - Admissibility of private communications - Admissible interceptions - Under "resort to" clause - [See Criminal Law - Topic 5284.1 ].

Criminal Law - Topic 5304

Evidence - Witnesses - Admissibility of private communications - Inadmissible interceptions - Lack of authority - [See Criminal Law - Topic 5284.1 ].

Criminal Law - Topic 5335

Evidence and witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was charged with the first degree murder of her common law spouse - The Crown's theory was that she planned the murder, which was committed by her daughter's boyfriend and another person - The accused was released on bail after being charged - On May 4, she confessed to planning the murder to undercover officers engaged in a Mr. Big operation - On May 13, while in custody, the accused gave a statement to police - The accused challenged the voluntariness of the statement on the ground that it resulted from an "implied inducement" that her daughter would not be charged - The trial judge rejected the argument, finding no implied inducement respecting whether the daughter would be charged or not - There was no inducement and no quid pro quo offered - There was no suggestion, even implied, that if the accused told police what happened that her daughter might face a reduced charge - The British Columbia Court of Appeal held that the trial judge made no palpable and overriding error in finding that the statement was freely and voluntarily made - See paragraphs 102 to 107.

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - The accused admitted to planning the murder of her common law spouse during a "Mr. Big" undercover operation in response to the undercover officer's statement that if she told him about the murder he could make the charge go away - The accused had already been charged with murder, but was released on bail - The accused argued that the trial judge erred in admitting her statement - The British Columbia Court of Appeal dismissed the appeal - The undercover operation was at the less oppressive end of the scale - The accused was invited to a hotel under the pretext of a job interview - The operation was limited to dinner and a 30 minute conversation with the undercover officers - There were no serious concerns respecting reliability due to oppression, intimidation and other tactics that would shock the community - After admitting the statement, the trial judge correctly instructed the jury of the danger of unreliable and false confessions in such operations - The court rejected the suggestion that a new approach was needed to determining the admissibility of "Mr. Big statements" - See paragraphs 79 to 85.

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - [See Civil Rights - Topic 3160 ].

Cases Noticed:

R. v. Morgan (B.) (1997), 61 O.T.C. 161 (Gen. Div.), refd to. [para. 22].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 24].

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. 32].

R. v. Bonisteel (R.) (2008), 259 B.C.A.C. 114; 436 W.A.C. 114; 2008 BCCA 344, refd to. [para. 57].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 64].

R. v. McIntyre (M.), [1994] 2 S.C.R. 480; 168 N.R. 308; 153 N.B.R.(2d) 161; 392 A.P.R. 161, affing. (1993), 135 N.B.R.(2d) 266; 344 A.P.R. 266 (C.A.), refd to. [para. 70].

R. v. Osmar (T.) (2007), 220 O.A.C. 186; 44 C.R.(6th) 276; 2007 ONCA 50, refd to. [para. 72].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 76].

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, refd to. [para. 77].

R. v. Terrico (W.J.) (2005), 214 B.C.A.C. 135; 353 W.A.C. 135; 199 C.C.C.(3d) 126; 2005 BCCA 361, leave to appeal refused (2006), 350 N.R. 400; 231 B.C.A.C. 319; 381 W.A.C. 319 (S.C.C.), refd to. [para. 79].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 81].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 88].

Katz v. United States (1967), 389 U.S. 347, refd to. [para. 92].

R. v. Mojtahedpour (K.) (2003), 178 B.C.A.C. 47; 292 W.A.C. 47; 2003 BCCA 22, dist. [para. 94].

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. 104].

Counsel:

J. Martin Peters, for the appellant;

Susan J. Brown, for the respondent.

This appeal was heard on June 17, 2011, at Vancouver, B.C., before Newbury, Levine and Bennett, JJ.A., of the British Columbia Court of Appeal.

On December 1, 2011, Bennett, J.A., delivered the following judgment for the Court of Appeal.