R. v. O'Flaherty (A.L.), (2015) 372 Nfld. & P.E.I.R. 243 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: September 04, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 372 Nfld. & P.E.I.R. 243 (NLPC);2015 NLPC 1314

R. v. O'Flaherty (A.L.) (2015), 372 Nfld. & P.E.I.R. 243 (NLPC);

    1158 A.P.R. 243

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. SE.008

Her Majesty the Queen v. Allie Lillian O'Flaherty

(2015 NLPC 1314A00670)

Indexed As: R. v. O'Flaherty (A.L.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

September 8, 2015.

Summary:

The accused was charged with assault with a weapon and aggravated assault. The Crown sought to introduce a video and audio-recorded statement provided by the accused to a police officer. The accused asserted that the statement was inadmissible because at the time that it was given she was under the influence of alcohol and drugs to the extent that the Crown had failed to prove that the statement was the product of an "operating mind".

The Newfoundland and Labrador Provincial Court held that the statement was admissible.

Criminal Law - Topic 5339.4

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Videotaped confessions or statements - [See second Criminal Law - Topic 5340 ].

Criminal Law - Topic 5340

Evidence - Witnesses - Confessions and voluntary statements - Admissibility - Effect of mental capacity of accused - The accused opposed the admission of a video and audio-recorded statement given to a police officer on the basis that, when the statement was given, she was under the influence of alcohol and drugs to the extent that the statement was not the product of an "operating mind" - The Newfoundland and Labrador Provincial Court discussed the common law voluntariness rule, stating, "In summary, the existence of an operating mind, capable of deciding whether or not to speak to the police, is not a high threshold. It does not require a moderate or significant present or general cognitive ability. It requires an examination of whether the accused who spoke to the police: (1) understood what she or he was saying; and (2) that what was said could be used as evidence. ... The operating mind test does not involve an inquiry into whether it was in the accused person's interest to speak to the police or whether the accused person appreciated the consequences of speaking to the police (other than understanding that what is said could be used as evidence). ... It is clear therefore, that impairment by alcohol or drugs will not in and by itself raise a reasonable doubt concerning the issue of an operating mind" - See paragraphs 39 to 46.

Criminal Law - Topic 5340

Evidence - Witnesses - Confessions and voluntary statements - Admissibility - Effect of mental capacity of accused - The accused was charged with assault with a weapon and aggravated assault - The Crown sought to introduce a video and audio-recorded statement provided by the accused to a police officer - The accused asserted that the statement was inadmissible because at the time that it was given she was under the influence of alcohol and drugs to the extent that the Crown had failed to prove that the statement was the product of an "operating mind" - The Newfoundland and Labrador Provincial Court held that the statement was admissible - None of the police officers who had contact with the accused, including the officer who was with her for 2.5 hours, noticed any signs of impairment, cognitive distortion or an inability to understand - A review of the recorded conversations confirmed this - The accused understood what she had been arrested for - The statement was provided freely, voluntarily and consciously - It was absolutely the product of a operating mind - See paragraphs 51 to 56.

Criminal Law - Topic 5352

Evidence and witnesses - Confessions and voluntary statements - Statements to a person in authority - [See second Criminal Law - Topic 5340 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See second Criminal Law - Topic 5340 ].

Cases Noticed:

Boudreau v. The King, [1949] S.C.R. 262, refd to. [para. 39].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 39].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 39].

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. 39].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 40].

R. v. Horvath, [1979] 2 S.C.R. 376; 25 N.R. 537, refd to. [para. 40].

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. 40].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 41].

R. v. Eisnor (W.P.) (2015), 362 N.S.R.(2d) 157; 1142 A.P.R. 157 (C.A.), refd to. [para. 42].

R. v. Magomadova (A.) (2015), 588 A.R. 331; 626 W.A.C. 331 (C.A.), refd to. [para. 42].

R. v. Baylis (R.) (2015), 336 O.A.C. 139 (C.A.), refd to. [para. 42].

R. v. Lear (T.) (1999), 174 Nfld. & P.E.I.R. 277; 533 A.P.R. 277 (Nfld. C.A.), refd to. [para. 43].

R. v. Fagnan (G.W.) (2015), 320 Man.R.(2d) 245; 2015 MBQB 144, refd to. [para. 46].

R. v. Gyles (D.S.), 2015 MBQB 21, refd to. [para. 46].

R. v. Douglas (R.D.) (2005), 387 A.R. 1 (Q.B.), refd to. [para. 46].

R. v. Tollefsen (I.) (2015), 364 Nfld. & P.E.I.R. 180; 1136 A.P.R. 180 (N.L.T.D.(G.)), refd to. [para. 49].

Counsel:

A. Dwyer, for Her Majesty the Queen;

J. Luscombe, for Ms. O'Flaherty.

This voir dire was heard at Corner Brook, N.L., on September 4, 2015, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following ruling on September 8, 2015.