R. v. Folker (D.), (2016) 373 Nfld. & P.E.I.R. 49 (NLCA)

• Judge: Welsh, White and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: September 24, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2016), 373 Nfld. & P.E.I.R. 49 (NLCA);2016 NLCA 1

R. v. Folker (D.) (2016), 373 Nfld. & P.E.I.R. 49 (NLCA);

    1161 A.P.R. 49

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. JA.027

David Folker (appellant) v. Her Majesty the Queen (respondent)

(14/02; 2016 NLCA 1)

Indexed As: R. v. Folker (D.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Welsh, White and Hoegg, JJ.A.

January 25, 2016.

Summary:

The accused was convicted by jury of the second degree murder of his common-law wife. The accused appealed, asserting that the trial judge erred in admitting into evidence three police statements and an unsent letter that he had written. He further asserted that the judge erred in dismissing his request for a mistrial.

The Newfoundland and Labrador Court of Appeal, White, J.A., dissenting in part but concurring in the result, dismissed the appeal.

Civil Rights - Topic 3601

Detention and imprisonment - Detention - General - The Newfoundland and Labrador Court of Appeal reviewed the law respecting detention within the meaning of s. 9 of the Charter - See paragraphs 14 to 20.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Folker appealed his conviction for second degree murder, asserting that he was detained and should have been given his Charter rights before he gave statements to the police on July 24, 27 and 28, 2010 - That assertion rested on, inter alia, the assertion that he was viewed as a suspect on July 24 - To support the contention that he was viewed as a suspect, he relied on the fact that the statements were videotaped and/or recorded - The Newfoundland and Labrador Court of Appeal stated that "Video and audio recording of police interviews has become increasingly common in recent years, as the Judge noted. Such electronic records provide an accurate account of what actually transpires during a police interview, thereby providing reliable information for police use in their investigation as well as reliable evidence for possible later use. Electronic recordings of police interviews also protect other important interests. They serve as a strong deterrent to the use of improper police tactics and also help to protect police from spurious claims. ... In this case, Mr. Folker was advised that the interview on July 24 was being videotaped and that the meetings of July 27 and 28 were being recorded. The statements he made in each of the July interviews were therefore made by him in the full knowledge that they were being recorded. Moreover, Mr. Folker was advised several times throughout the interviews that the police wanted to make sure that what he was telling them was true. In these circumstances, I cannot see how the video and/or audio recording of his statements supports his detention argument." - See paragraphs 21 to 23.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused appealed his conviction for the second degree murder of his common law wife, asserting that he was detained and should have been given his Charter rights before he gave statements to the police on July 24, 27 and 28, 2010 - He asserted that he acceded to the police request for an interview on July 24 because he felt that he was not in a position to refuse, and once at police headquarters, he felt that he was not free to leave - The Newfoundland and Labrador Court of Appeal stated that while the accused's subjective feelings were relevant, they did not determine that he was detained - The test was an objective one, requiring that a reasonable person in the accused's shoes would have concluded that because of the police conduct he or she had no choice but to comply with the police questioning - The circumstances of the interview, the nature of the police conduct and the accused's personal circumstance had to be considered - When police contacted the accused on July 23 for an interview, the accused's wife had been missing for five days - The accused, who had filed a missing person report the day after she disappeared, was the last person known to have seen her alive - There had been no prior police contact with the accused and he agreed to speak with them and drove himself to police headquarters the next morning - The interview's purpose was to follow-up on the missing person report - In those circumstances, the accused could not maintain that he had no choice but to attend at police headquarters and answer police questions - See paragraphs 24 and 25.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused appealed his conviction for the second degree murder of his common law wife, asserting that he was detained and should have been given his Charter rights before he gave statements to the police on July 24, 27 and 28, 2010 - He asserted that because the police decided to put him under surveillance part way through the July 24 interview, he had by then, or before then, become a suspect, and should have been given his Charter rights - The Newfoundland and Labrador Court of Appeal rejected the assertion - The questioning during the July 24 interview focussed on the interaction between the accused and his wife before she left his residence on July 18, and information about their personal lives and the wife's habits and friends - The police had no body and no grounds to suspect that she had been the victim of a crime - They had no grounds to believe that the accused was implicated in her disappearance - The questioning was normal and straight forward - It was not accusatory or oppressive - The accused was forthcoming with information and entirely cooperative - The interview's tenor was investigative and the accused appeared anxious to help - During the three interviews and until much later in the summer, the police treated the accused as a bereaved family member - Even if the police had a lurking suspicion that the accused was involved in his wife's disappearance, they did not then have anything concrete on which to base it and no grounds for charging him or to obtain a search warrant - In any event, focussed suspicion did not turn an interview into a detention - The interviews were not a "focussed interrogation amounting to detention" - There was nothing in the evidence of the way that the police interacted with the accused that would have caused a reasonable person in his shoes to believe that he or she had no choice but to answer the police questions - See paragraphs 26 to 29.

Criminal Law - Topic 4347

Procedure - Jury - Evidence - Admission of - General - The accused was charged with the murder of his common-law wife - In the course of the investigation and before the accused's arrest, the police searched the accused's vehicle and found an unsent handwritten letter authored by the accused and addressed to his friend Tammy - At trial, the accused asserted that a line in the letter ("And then, like SATAN answered my prayers she [the accused's wife] left that night and has not come back") was inflammatory and prejudicial to him, and should be excised - The trial judge admitted the entire letter, ruling that the impugned line was not particularly prejudicial to the accused, and that the letter was relevant evidence going to his state of mind and credibility - The accused was convicted of second degree murder - The accused appealed, asserting that the judge erred in admitting the letter - The Newfoundland and Labrador Court of Appeal dismissed the appeal - The letter was relevant, although not of high probative value - The question then became whether the impugned sentence could lead the jury to improperly reason or conclude that the accused had murdered his wife - The risk of the jury having done so was the prejudice that had to be considered in the balancing exercise - The use of "Satan" in this context was unlikely to cause prejudice and was unlikely to have caused the jury to reason that the accused murdered his wife - The impugned sentence, or indeed the whole letter, was straight-forward and unambivalent - The jury might have interpreted parts of it to support the accused's defence and other parts to contradict it - That was their job, with the guidance of the judge's instructions - It could not be concluded that admission of the whole letter was confusing - Excision of the impugned sentence would have been more apt to confuse the jury due to their wondering what had been excised and why - The judge was aware that the accused intended to give evidence, and correctly reasoned that the accused would have the opportunity to explain his use of the Satan reference to the jury - The judge gave a reasoned decision why he would not excise the sentence - He weighed its prejudicial effect against the letter's probative value and based his decision on proper principles and relevant facts and considerations - Insofar as the accused's argument that the Satan sentence could be considered to be inculpatory was concerned, the judge also considered and applied the law respecting mixed statements - No error was shown and the decision was owed deference - See paragraphs 63 to 69.

Criminal Law - Topic 4380

Procedure - Charge or directions - Jury or judge alone - Misdirection - General - Curing of - The accused was charged with the murder of his common law wife - The accused maintained that he knew nothing about his wife's disappearance - After the trial judge gave his opening instructions to the jury and the Crown had made his opening statement, defence counsel made an opening statement, in which it was admitted that the accused and his wife had been having relationship difficulties and that there had been a physical altercation that resulted in the wife's death - Defence counsel described how and where the accused had disposed of the victim's body and personal effects - Counsel further stated that the accused had lied in his various police statements - The jury was excused and the judge and both counsel had a short discussion - The trial was adjourned until the following day - When the trial resumed, the accused confirmed his admissions to the judge on record - The jury was then called in and the accused confirmed his admissions to the jury - The judge then addressed the jury with respect to what had transpired - The accused moved for a mistrial on the basis that the judge's indication of surprise in his remarks to the jury and his comments about the rarity of substantial admissions being made in the circumstances suggested to the jury that the accused's admissions were underhanded and without merit, thereby prejudicing him in the eyes of the jury - The judge dismissed the motion - The Newfoundland and Labrador Court of Appeal affirmed the decision - There was nothing improper or underhanded about the accused making the admissions where and when he did and there was no reason why prejudice to him should result - While it might have been preferable for the judge not to have indicated his surprise, his reaction was understandable - Taken in context, his comments could not have prejudiced the accused in the eyes of the jury, or left them with the impression that the admissions were improper or underhanded - The judge clearly indicated that the accused had done nothing wrong in instructing his counsel to disclose his admissions where and when he did and that the jury still had to decide whether the accused was guilty beyond a reasonable doubt - The judge's comments were clear, curative and generous - They were made without repeating the words that gave rise to the accused's concerns, and they underscored that the accused was well within his rights to do what he had done and no negative inferences should be drawn - If there had been prejudice to the accused, the judge's curative comments would have addressed it and would have been a complete answer to the accused's concerns - See paragraphs 48 to 53.

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - [See Criminal Law - Topic 4380 ].

Criminal Law - Topic 4388

Procedure - Charge or directions - Jury or judge alone - Directions re addresses by counsel - [See Criminal Law - Topic 4380 ].

Criminal Law - Topic 4400.1

Procedure - Opening and closing addresses - Summing up - Opening address by defence - [See Criminal Law - Topic 4380 ].

Criminal Law - Topic 4405

Procedure - Opening and closing addresses - Summing up - Counsel - Opening address - Improper remarks - [See Criminal Law - Topic 4380 ].

Criminal Law - Topic 4631

Procedure - Mistrials - General - The Newfoundland and Labrador Court of Appeal reviewed the law respecting the declaration of a mistrial - See paragraphs 43 to 47.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - [See Criminal Law - Topic 4380 ].

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - [See Criminal Law - Topic 4347 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 4347 ].

Criminal Law - Topic 5353.4

Evidence and witnesses - Confessions and voluntary statements - Statements both inculpatory and exculpatory - [See Criminal Law - Topic 4347 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused appealed his conviction for the second degree murder of his common law wife, asserting that the trial judge erred in finding that three statements that he gave to police were voluntary - He asserted that the police tricked him into talking with them by pretending that they were following up on his missing person report when they really viewed him as a suspect - The Newfoundland and Labrador Court of Appeal rejected the assertion - The police were honest and frank with the accused at all times, and that they told him several times that they wanted to check out the veracity of his story - The accused acknowledged their need to do so, and could not have been under any different impression when he said what he said or when he consented to the searches of his person, his home, car, computer and cell or land phones - Moreover, although he was not given his Charter rights or the police caution, each of the written consents he signed for the searches gave notice of his right to decline to agree to the searches and to consult with counsel before he agreed or signed the consent forms - While this was not a substitute for Charter rights and the police caution, it served to alert the accused that he was free to decline interaction with the police - Further, the three statements were essentially exculpatory and could not be characterized as admissions - Although some parts of his statements might, in hindsight, not jibe with his trial testimony and his admissions, there was no content in them that could be construed as inculpatory - The accused stated his desire to cooperate with the police so as to help them find his wife - The only respect in which it could be said that the police were not 100 percent upfront was that they did not tell him he would be or was under surveillance - To have told him that would have defeated the purpose of using that investigatory tool - The public actions of everyone, including the accused, were always at risk of being witnessed - The police conduct could not be construed as trickery which caused the accused to answer their questions - Nothing the police did would have shocked the community - See paragraphs 30 to 36.

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - [See Criminal Law - Topic 4347 ].

Police - Topic 2213

Duties - General duties - Recording and preserving evidence - [See first Civil Rights - Topic 3604 ].

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - [See Criminal Law - Topic 5355 ].

Police - Topic 3107

Powers - Investigation - Questioning of suspects and witnesses - [See third Civil Rights - Topic 3604 ].

Police - Topic 3122

Duties - Interrogation - What constitutes - [See third Civil Rights - Topic 3604 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [paras. 14, 73].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [paras. 20, 73].

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; 2000 SCC 38, refd to. [para. 22].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 30].

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271; 2002 SCC 55, refd to. [para. 43].

R. v. Ryan (D.) (2012), 318 Nfld. & P.E.I.R. 15; 989 A.P.R. 15; 2012 NLCA 9, refd to. [para. 43].

R. v. Ertmoed (S.R.) (2006), 229 B.C.A.C. 168; 379 W.A.C. 168; 2006 BCCA 365, refd to. [para. 45].

R. v. Snow (D.A.) (2004), 191 O.A.C. 212; 73 O.R.(3d) 40 (C.A.), refd to. [para. 45].

R. v. Rojas (M.A.) et al., [2008] 3 S.C.R. 111; 380 N.R. 211; 260 B.C.A.C. 258; 439 W.A.C. 258; 2008 SCC 56, refd to. [para. 56].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 59].

R. v. Ansari (A.) (2015), 337 O.A.C. 207; 2015 ONCA 575, refd to. [para. 59].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 62].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 62].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 62].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 75].

R. v. Sunshine (D.C.), [2010] B.C.T.C. Uned. 44; 208 C.R.R.(2d) 59; 2010 BCSC 44, affd. (2013), 335 B.C.A.C. 55; 573 W.A.C. 55; 297 C.C.C.(3d) 145; 2013 BCCA 102, leave to appeal denied (2013), 466 N.R. 385 (S.C.C.), refd to. [para. 17].

R. v. Koczab (A.) (2013), 294 Man.R.(2d) 24; 581 W.A.C. 24; 309 C.C.C.(3d) 183; 2013 MBCA 43, revd. [2014] 1 S.C.R. 138; 453 N.R. 113; 303 Man.R.(2d) 121; 600 W.A.C. 121; 2014 SCC 9, refd to. [para. 78].

R. v. Johns (M.) (1998), 106 O.A.C. 291; 123 C.C.C.(3d) 190 (C.A.), refd to. [para. 79].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 85].

Counsel:

Jason A. Edwards, for the appellant;

Francs Knickle, Q.C., for the respondent.

This appeal was heard on September 24, 2015, by Welsh, White and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. The decision of the court was delivered on January 25, 2016, with the following opinions:

Hoegg, J.A. (Welsh, J.A., concurring) - see paragraphs 1 to 71;

White, J.A., dissenting in part - see paragraphs 72 to 92.