R. v. Edmondson (D.T.),

• Jurisdiction: Saskatchewan
• Judge: Cameron, Gerwing and Sherstobitoff, JJ.A.
• Neutral Citation: 2005 SKCA 51
• Court: Court of Appeal (Saskatchewan)
• Date: 19 January 2005
• Citation: 2005 SKCA 51,(2005), 257 Sask.R. 270 (CA),[2006] 6 WWR 74,196 CCC (3d) 164,[2005] SJ No 256 (QL),257 Sask R 270,342 WAC 270,342 W.A.C. 270,(2005), 257 SaskR 270 (CA),257 Sask.R. 270,257 SaskR 270,[2005] S.J. No 256 (QL)

R. v. Edmondson (D.T.) (2005), 257 Sask.R. 270 (CA);

    342 W.A.C. 270

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. MY.017

Dean Trevor Edmondson (appellant) v. Her Majesty The Queen (respondent)

(Docket No. 673)

Her Majesty The Queen (appellant) v. Dean Trevor Edmondson (respondent)

(Docket No. 703; 2005 SKCA 51)

Indexed As: R. v. Edmondson (D.T.)

Saskatchewan Court of Appeal

Cameron, Gerwing and Sherstobitoff, JJ.A.

April 20, 2005.

Summary:

A 12-year-old girl reported that three young men had engaged in sexual activity with her on a particular evening. The accused was charged under s. 272(1)(d) of the Criminal Code as a party to the offence of sexual assault. He was tried by judge and jury. The others were similarly charged, but they were tried separately. The accused was found guilty as charged and given a conditional sentence of two years less a day. He appealed, alleging that the trial judge erred in admitting an incriminating statement given by the accused to the police and in misdirecting the jury in several respects. The Crown appealed the sentence, arguing that the trial judge erred in imposing a conditional sentence.

The Saskatchewan Court of Appeal dismissed the conviction appeal, but substituted a verdict of sexual assault simpliciter. The court dismissed the sentence 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 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent - The accused was arrested by two R.C.M.P. officers on suspicion of sexual assault - He was informed of his counsel rights and his right to remain silent - He consulted with counsel who told him not to speak to the police about the matter - The accused then informed the police of the advice he had received - The investigating officer took the accused to an interview room, engaged him in conversation, and persuaded him to make an incriminating statement notwithstanding his counsel's advice to the contrary - At his trial on sexual assault charges, the trial judge admitted the statement, holding that the persuasion used by the police did not cross the line such as to violate the accused's rights under ss. 7 or 10(b) of the Charter - The accused was convicted - He appealed - The Saskatchewan Court of Appeal dismissed the appeal - There was no breach of the s. 7 right to remain silent where the officer used legitimate means to persuade the accused to talk - There was no breach of s. 10(b) where the officer's remarks could not be said to have so belittled counsel as to allow the court to conclude that they were made with the goal or effect of undermining the accused's confidence in and relationship with counsel - See paragraphs 24 to 45.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - [See Civil Rights - Topic 3160 ].

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators - The accused was convicted of being a party to a sexual assault, partly on the basis of an incriminating statement he made to police - The accused appealed, arguing that the statement should not have been admitted because the police had gone too far in obtaining the statement by undermining his confidence in his counsel (Charter, s. 10(b)) - The Saskatchewan Court of Appeal noted that the trial judge framed this issue by reference to unacceptable police attempts "to undermine the advice of counsel for purposes of obtaining a confession", noting the strategy employed by the police officer to "downplay the advice of counsel" - The court stated that this was not the test for determining if police conduct violated an accused's s. 10(b) right to counsel in these circumstances, and the judge should not have used this test - However, the court concluded that the test applied by the trial judge actually worked to the advantage of the accused because the officer was more likely to have violated the accused's rights on that test than on the appropriate test - The appropriate test being whether the remarks in issue, viewed in the context of the interview as a whole, served to so belittle counsel, with the express goal or effect of undermining the accused's confidence in and relationship with counsel, as to have violated the accused's right to counsel and vitiated his choice to remain silent - See paragraphs 35 to 38.

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 2759

Parties to offences - Jury charge - The accused was convicted of being a party to a sexual assault - The accused appealed - The Saskatchewan Court of Appeal held that the trial judge erred in his re-instruction to the jury following a question regarding the "party" issue by not answering the question in a clear, correct and comprehensive manner - He failed to inform the jury that it was open to them to find the accused guilty as either a principal or a party - He also failed to adequately explain to the jury that they could convict the accused of the included offence of sexual assault simpliciter - As a remedy, the court dismissed the appeal but substituted a verdict of guilty of sexual assault in place of the verdict of guilty of sexual assault as a party - See paragraphs 61 to 89 and 99 to 109.

Criminal Law - Topic 4355

Procedure - Charge or directions - Jury or judge alone - Directions regarding included offences - [See Criminal Law - Topic 2759 ].

Criminal Law - Topic 4377.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding reliability of witnesses' testimony - A 12-year-old girl claimed that three young men, including the accused, picked her up, provided her with beer as they drove around, and then engaged in sexual acts with her on a country road while she was intoxicated - The accused claimed that he honestly believed on reasonable inquiry that the girl was 14 years old and had consented, while sober, to having sex with him independently of the others - The accused was convicted as a party to the offence of sexual assualt - He appealed, arguing that the trial judge erred in failing to give a clear and sharp warning about accepting the complainant's testimony in the absence of evidence confirming her account where she was a child whose memory of the events was so uncertain - The Saskatchewan Court of Appeal rejected this ground of appeal - The court found no error in the judge declining to give a Vetrovec-like warning respecting the complainant's testimony - Further, there was a considerable measure of independent support for her testimony - See paragraphs 46 to 57.

Criminal Law - Topic 4391.1

Procedure - Charge or directions - Jury or judge alone - Deadlocked jury exhortation - The accused was convicted of being a party to a sexual assault - He appealed, arguing that the judge failed to respond to an indication that the jury was deadlocked - When it became apparent that the jury was having trouble reaching a verdict, the judge decided not to exhort the jury, but rather acknowledged the difficulties in the case and asked the jury to resume its deliberations for a while - He suggested a further discussion and exchange of ideas and told them that if no progress was made the jury could return later in the afternoon with its comments - The jury did as instructed and reached a verdict the following day - The Saskatchewan Court of Appeal rejected this ground of appeal, holding that there was nothing inappropriate in the approach taken by the judge - See paragraphs 93 to 97.

Criminal Law - Topic 5056

Appeals - Indictable offences - Substitution of verdict - Substitution of conviction for included offences - [See Criminal Law - Topic 2759 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was arrested by two R.C.M.P. officers on suspicion of sexual assault - He was informed of his counsel rights and his right to remain silent - He consulted with counsel who told him not to speak to the police about the matter - The accused then informed the police of the advice he had received - The investigating officer took the accused to an interview room, engaged him in conversation, and persuaded him to make an incriminating statement notwithstanding his counsel's advice to the contrary - At his trial on sexual assault charges, the trial judge admitted the statement - The accused was convicted - He appealed - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge made no palpable or overrriding error in finding that the statement was voluntary - See paragraphs 24 to 28.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault (incl. by multiple parties) - A 12-year-old girl claimed that three young men, including the accused, picked her up, provided her with beer as they drove around, and then engaged in sexual acts with her on a country road while she was intoxicated - The accused, age 24, was convicted of being a party to a sexual assault and sentenced to two years less a day to be served in the community - First time offender - Single, living at home and gainfully employed with a very supportive family - Isolated act - Excessive alcohol involved - The accused appealed the conviction - The Crown appealed the sentence - The Saskatchewan Court of Appeal dismissed the appeal but substituted a verdict of sexual assault simpliciter - Given the deferential standard of review governing the appeal, the court held that there was no tenable basis to interfere with the trial judge's selection of a sentence of two years less a day - However, the judge should not have imposed a conditional sentence in this case which called for a period of incarceration - The court allowed the accused to complete his conditional sentence where he had already served 20 months of the conditional sentence and had been incarcerated initially, his sentence would be complete having regard to remission or conditional release - See paragraphs 110 to 136.

Police - Topic 3101

Powers - Investigation - General - In a case where the accused's right to remain silent and right to counsel were at issue, the Saskatchewan Court of Appeal reiterated that "lest it be thought otherwise police investigations are not governed by Marquess of Queensbury rules" - See paragraph 44.

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. techniques of persuasion) [See Civil Rights - Topic 3160 and Civil Rights - Topic 4609.1 ].

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; 190 D.L.R.(4th) 257; 147 C.C.C.(3d) 321; 36 C.R.(5th) 129, refd to. [para. 7].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 77 C.R.(3d) 145; 57 C.C.C.(3d) 1; [1990] 5 W.W.R. 1; 47 B.C.L.R.(2d) 1, refd to. [para. 7].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385; 124 D.L.R.(4th) 7; 38 C.R.(4th) 265; 28 C.R.R.(2d) 244, refd to. [para. 7].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 44].

R. v. McKenzie (P.N.) (1996), 141 Sask.R. 221; 114 W.A.C. 221 (C.A.), refd to. [para. 46].

R. v. Saulnier (1989), 89 N.S.R.(2d) 208; 227 A.P.R. 208; 48 C.C.C.(3d) 301 (C.A.), refd to. [para. 48].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193, refd to. [para. 50].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; [1983] 1 W.W.R. 193; 27 C.R.(3d) 304; 136 D.L.R.(3d) 89; 67 C.C.C.(2d) 1, refd to. [para. 50].

R. v. V.K. (1991), 4 C.R.(4th) 338 (B.C.C.A.), refd to. [para. 50].

Azoulay v. R., [1952] 2 S.C.R. 495; 104 C.C.C. 97, refd to. [para. 58].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321; 93 C.C.C.(3d) 1, refd to. [para. 61].

R. v. Uddin, [1998] 2 All E.R. 744 (C.A.), refd to. [para. 71, footnote 1].

R. v. Fraser (1984), 13 C.C.C.(3d) 292 (B.C.C.A.), refd to. [para. 83, footnote 2].

R. v. McPherson (1989), 34 O.A.C. 76 (C.A.), refd to. [para. 83, footnote 2].

R. v. Sui, [2003] O.J. No. 826 (Sup. Ct.), refd to. [para. 85, footnote 3].

R. v. Aliku, 1993 CarswellQue 996, refd to. [para. 85, footnote 3].

R. v. Beaton (E.R.) (1991), 118 N.S.R.(2d) 341; 327 A.P.R. 341 (T.D.), refd to. [para. 85, footnote 3].

R. v. Head, [1986] 2 S.C.R. 684; 70 N.R. 364; 53 Sask. R. 1, refd to. [para. 86].

R. v. R.M.G., [1996] 3 S.C.R. 362; 202 N.R. 1; 81 B.C.A.C. 81; 132 W.A.C. 81; 110 C.C.C.(3d) 26, refd to. [para. 95].

R. v. Wigman, [1987] 1 S.C.R. 246; 75 N.R. 51; 33 C.C.C.(3d) 97; [1987] 4 W.W.R. 1; 38 D.L.R.(4th) 530; 56 C.R.(3d) 289, refd to. [para. 107].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1; 32 C.R.(5th) 1, refd to. [para. 109].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 112].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327; 46 C.R.(4th) 269, refd to. [para. 112].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 113].

R. v. L.F.W., [2000] 1 S.C.R. 132; 249 N.R. 345; 185 Nfld. & P.E.I.R. 1; 562 A.P.R. 1; 140 C.C.C.(3d) 539; 30 C.R.(5th) 73, refd to. [para. 113].

R. v. R.N.S., [2000] 1 S.C.R. 149; 249 N.R. 365; 132 B.C.A.C. 1; 215 W.A.C. 1; 140 C.C.C.(3d) 553; 30 C.R.(5th) 63, refd to. [para. 113].

R. v. R.A.R., [2000] 1 S.C.R. 163; 249 N.R. 322; 142 Man.R.(2d) 282; 212 W.A.C. 282; 140 C.C.C.(3d) 523, refd to. [para. 113].

R. v. M.S. (2003), 232 Sask.R. 28; 294 W.A.C. 25; 173 C.C.C.(3d) 526 (C.A.), refd to. [para. 113].

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 186 C.C.C.(3d) 129 (C.A.), refd to. [para. 132].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1), sect. 271(1)(a), sect. 272(1), sect. 272(2) [para. 67].

Counsel:

W. Dean Sinclair, for the Crown;

Hugh M. Harradence, Q.C., for Dean Trevor Edmondson.

These appeals were heard on January 19, 2005, before Cameron, Gerwing and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. Cameron, J.A., delivered the following judgment for the court on April 20, 2005.