R. v. Hersey (D.P.), (2006) 407 A.R. 230 (QB)

• Judge: Moreau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 04, 2006
• Citations: (2006), 407 A.R. 230 (QB);2006 ABQB 734

R. v. Hersey (D.P.) (2006), 407 A.R. 230 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. OC.118

Her Majesty the Queen (Crown) v. David Peter Hersey (accused)

(050572080Q1; 2006 ABQB 734)

Indexed As: R. v. Hersey (D.P.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moreau, J.

October 4, 2006.

Summary:

Hersey was charged with second degree murder. A voir dire was held to determine the admissibility of statements made by Hersey to a member of the fire department, a paramedic, the police officer who arrested him, and a detective at downtown headquarters, including a letter of apology written by Hersey following the police interview.

The Alberta Court of Queen's Bench held that the statements made to the fire department member and paramedic were not statements made to persons in authority and, thus, their voluntariness did not have to be established by the Crown. The statement made to the arresting officer outside Hersey's house and prior to his arrest was obtained in violation of Hersey's s. 10 Charter right and was excluded as evidence under s. 24(2) of the Charter. The statement made to the arresting officer in the police vehicle after his arrest, the videotaped statement to a detective, and the letter of apology were admissible.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Emergency personnel found Hersey alone in a residence with an injured infant - Police arrived - Constable Sparreboom was told that Hersey's description of how the child was injured "wasn't washing" - Sparreboom asked Hersey to come outside and talk - They did so - Sparreboom arrested Hersey, placed him in a police vehicle and administered the Charter warning - Hersey was charged with second degree murder - A voir dire was held - At issue was the admissibility of statements made by Hersey to Sparreboom outside the house and in the police vehicle - The Alberta Court of Queen's Bench held that the statement made outside the house was obtained in violation of Hersey's s. 10 Charter right and was excluded as evidence under s. 24(2) of the Charter - Hersey was responding to a direction to accompany Sparreboom for questioning where a criminal investigation focussing on Hersey was underway - There was psychological detention and an interference with Hersey's liberty during which he might reasonably require counsel's assistance - The evidence obtained was conscriptive and its admission would affect the fairness of the trial - The statement made in the police vehicle following a proper Charter warning was admissible - See paragraphs 30 to 43.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - Emergency personnel found Hersey alone in a residence with an injured infant - Hersey was arrested - Detective Curle conducted an interview - Curle told Hersey that the child had a less than 1% chance of survival and that he was charged with aggravated assault - Curle administered the Charter warning - Hersey stated that he did not want to contact a lawyer at that point - Subsequently, Curle told Hersey that he might be charged with murder - Hersey made a videotaped statement admitting his involvement and wrote a letter of apology - He was charged with second degree murder - A voir dire was held - At issue was the admissibility of the videotaped statement and letter of apology - The defence asserted that Hersey should have been told at the interview's outset that he might be charged with murder and that Curle's failure to provide clear information meant that Hersey had not unequivocably waived his right to counsel - The Crown asserted that by the time Hersey spoke to Curle, he understood the jeopardy he was in, having described the child as "like lifeless" to a 911 operator - The Alberta Court of Queen's Bench held that the defence failed to establish a breach of s. 10 of the Charter - Curle's summary of the child's condition had not created a false impression of Hersey's jeopardy - Hersey made a choice not to speak to counsel - Curle was not required to warn him again - The videotaped interview was admissible - The apology letter, written after Hersey was offered access to counsel but declined, was admissible - See paragraphs 79 to 92.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 5334.2

Evidence and witnesses - Confessions and voluntary statements - Coercion - What constitutes - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 5338

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Where accused's rights violated - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 5339.4

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Videotaped confessions or statements - [See Civil Rights - Topic 4612 and Criminal Law - Topic 5355 ].

Criminal Law - Topic 5349

Evidence and witnesses - Confessions and voluntary statements - Warning - Sufficiency of - [See Civil Rights - Topic 4612 ].

Criminal Law - Topic 5353

Evidence and witnesses - Confessions and voluntary statements - Who is a person in authority - [See Criminal Law - Topic 5353.1 ].

Criminal Law - Topic 5353.1

Evidence and witnesses - Confessions and voluntary statements - Statements to persons not in authority - Emergency personnel found Hersey alone in a residence with an injured infant - Hersey made statements to a fire department member and a paramedic regarding the child's injuries - Hersey was charged with second degree murder - A voir dire was held - At issue was the admissibility of the statements to the fire department member and paramedic - The Alberta Court of Queen's Bench held that the statements were not statements made to persons in authority and, thus, their voluntariness did not have to be established by the Crown - The evidence did not raise a live issue as to Hersey having a reasonable belief that the emergency personnel were part of a police or prosecutorial team such as to shift the persuasive burden to the Crown to establish that they were not persons in authority - They were wearing uniforms that distinguished them as emergency personnel and introduced themselves as such - The exchanges were calm and Hersey was not under the influence of any intoxicating substances - There was no implicit quid pro quo in the requests for medical information from Hersey - See paragraphs 4 to 24.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - Emergency personnel found Hersey alone in a residence with an injured infant - Hersey was arrested - Detective Curle conducted an interview - Hersey made a videotaped statement admitting his involvement and wrote a letter of apology - He was charged with second degree murder - A voir dire was held - At issue regarding the admissibility of the videotaped statement and letter of apology was whether they were made under conditions that were oppressive enough to negate their voluntariness - The defence pointed to Curle's suggestion that Hersey was free to go, which was untrue, Hersey's request for a cigarette late in the interview, which was put off by Curle for further questioning, Hersey's retention in custody for over seven hours without food and his distraught condition - The Crown asserted that the questioning was never hostile, aggressive or intimidating and that Hersey responded appropriately to questions - The Alberta Court of Queen's Bench held that the statements were made voluntarily and were the product of an operating mind - While relevant considerations, the features of the interview raised by the defence did not, either alone or in combination, raise a reasonable doubt regarding the voluntariness of the statements - See paragraphs 68 to 78.

Cases Noticed:

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485; 59 C.C.C.(2d) 30, refd to. [para. 6].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97; 18 C.R.(5th) 135; 127 C.C.C.(3d) 475; 163 D.L.R.(4th) 577; 1998 CarswellOnt 3417, refd to. [para. 6].

R. v. M.R.B. (1998), 108 B.C.A.C. 85; 176 W.A.C. 85; 51 B.C.L.R.(3d) 158 (C.A.), refd to. [para. 10].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 31].

R. v. Lawrence (1990), 46 O.A.C. 345; 59 C.C.C.(3d) 55 (C.A.), refd to. [para. 33].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 33].

R. v. Douglas (R.D.) (2005), 387 A.R. 1; 2005 ABQB 252, refd to. [para. 35].

R. v. Dickens (J.C.) (2001), 277 A.R. 248; 242 W.AC. 248; 2001 ABCA 51, leave to appeal refused (2003), 305 N.R. 399; 327 A.R. 76; 296 W.A.C. 76 (S.C.C.), refd to. [para. 40].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 41].

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. 68].

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; 147 C.C.C.(3d) 321; 2000 SCC 38, refd to. [para. 68].

R. v. Precourt (1976), 18 O.R.(2d) 714 (C.A.), leave to appeal refused (1977), 15 N.R. 90; 18 OR.(2d) 714 (S.C.C.), refd to. [para. 71].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1, dist. [para. 79].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 118 D.L.R.(4th) 154, refd to. [para. 80].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207, refd to. [para. 80].

R. v. Korponey, [1982] 1 S.C.R. 41; 44 N.R. 103; 26 C.R.(3d) 343; 132 D.L.R.(3d) 354; 65 C.C.C.(2d) 65, refd to. [para. 80].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 41 D.L.R.(4th) 301, refd to. [para. 80].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233; 63 C.C.C.(3d) 313, refd to. [para. 81].

Counsel:

Shelley Bykewich, for the Crown;

Steven J. Fix, for the accused.

This voir dire was held on August 31, September 1 and 22, 2006, by Moreau, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following voir dire ruling on October 4, 2006.