R. v. J.C.D., 2015 MBQB 18

• Judge: Greenberg, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 27, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 18;(2015), 314 Man.R.(2d) 59 (QB)

R. v. J.C.D. (2015), 314 Man.R.(2d) 59 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.020

Her Majesty The Queen v. J.C.D. (accused)

(YO 13-01-33130; 2015 MBQB 18)

Indexed As: R. v. J.C.D.

Manitoba Court of Queen's Bench

Winnipeg Centre

Greenberg, J.

January 27, 2015.

Summary:

The accused young person was charged with manslaughter. At issue on this voir dire was the admissibility of shoes and a t-shirt seized from the accused when he was interviewed by police about the offence.

The Manitoba Court of Queen's Bench held that the accused's ss. 8 and 10 Charter rights were violated and the evidence should be excluded under s. 24(2).

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 1645

Property - Search and seizure - Consent to search or seizure - The accused young person was charged with manslaughter - He was originally arrested for unrelated offences and then moved to the Major Crime Unit to be interviewed as a person of interest in an assault (victim subsequently died) - At issue on a voir dire was the admissibility of shoes and a t-shirt seized from the accused - The items had been placed in a property bag when the accused was arrested on the unrelated charges and would have been returned to him when he was released had they not been seized - The Crown claimed that the seizure did not breach s. 8 of the Charter because the accused consented - The Manitoba Court of Queen's Bench held that s. 8 was breached - The court was not satisfied that the accused consented - He did not sign a written consent to seizure, nor did Cst. MacDonald have a verbatim record of what was said to or by the accused in relation to the seizure - The other investigating officer did not testify - The accused had a limited mental capacity - Even if the court accepted Cst. MacDonald's evidence that the accused said that he was "willing" to have his clothing tested and that this was a clear indication of consent, the consent was not valid - The accused was not told that he had a choice not to consent or of the potential consequences of having the clothing tested - Moreover, in spite of the fact that Cst. MacDonald said that the accused had difficulty understanding what was being said to him, there was no evidence that he made any attempt to determine if the accused understood what was being asked of him - Further, his consent was not valid because he was not first advised of his right to counsel - See paragraphs 22 to 35.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1645 ].

Civil Rights - Topic 3604

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

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused young person was charged with manslaughter - He was originally arrested for unrelated offences and then moved to the Major Crime Unit to be interviewed as a person of interest in an assault, but the police knew that the victim would not likely survive at the time of the interview - At issue on a voir dire was the admissibility of shoes and a t-shirt seized from the accused - The Manitoba Court of Queen's Bench held that the police breached the accused's s. 10 Charter rights - Although the police complied with s. 10 when they arrested the accused for the unrelated charges, they were required to readvise the accused of his s. 10 rights when he was interviewed in the Major Crimes Unit - Even if the accused was only a witness during the first interview, circumstances changed by the third interview when Cst. MacDonald "confronted" the accused about the different stories he had given and told him that he did not believe him - It was difficult to believe that, at this point, Cst. MacDonald was not suspicious about the accused's involvement in the assault - In any event, looking at it from the accused's perspective, he was a 15-year-old boy with cognitive impairment, who was in an interview room for several hours with two large police officers - Considering the nature of the questioning, and the physical surroundings, a reasonable person in his position would have felt compelled to cooperate with police - At the very latest, when the tone of the questioning became challenging, a reasonable person in his position would have felt his freedom of choice constrained - By that point, police should have advised him of his right to counsel - As for s. 10(a), Cst. MacDonald testified that in the first interview with the accused, he told him that they were investigating an assault and that he was a witness - As long as he was just a witness, that information was sufficient - At the time his right to counsel was triggered, he should have been told the true nature of his jeopardy so that he could properly exercise that right - See paragraphs 36 to 45.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 1645 and Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 1645 and Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused young person was charged with manslaughter - He was originally arrested for unrelated offences and then moved to the Major Crime Unit to be interviewed as a person of interest in an assault - At the time, the police knew that the victim would not likely survive - At issue on a voir dire was the admissibility of shoes and a t-shirt seized from the accused - The items had been placed in a property bag when he was arrested on the unrelated charges and would have been returned to him when he was released had they not been seized - The Manitoba Court of Queen's Bench held that the police breached the accused's ss. 8 and 10 Charter rights and the evidence should be excluded - The breaches were serious, not technical - There was a complete disregard of the accused's rights - Cst. MacDonald recognized that the accused had cognitive issues, but rather than wait for information about the accused's abilities from a youth centre where the accused had been staying, he pursued his questioning over several hours without any heed to his obligations under the Charter or to the protections provided by the Youth Criminal Justice Act - The seizure of the items (and the DNA test results which the Crown intended to tender if they were admitted into evidence), was both causally and temporally connected to the Charter breaches - Interrogating the 15 year old accused without regard for his right to counsel, especially considering the serious nature of the charge, had a considerable impact on his rights - He was compelled to cooperate without knowing he had any option - The effect was exacerbated by the accused's youth and limited intellectual ability - The Crown argued that, because they could not obtain a conviction without the evidence, excluding the evidence would have a negative effect on the administration of justice - However, it was not apparent that there was enough evidence to support a conviction even with the blood evidence on the shoe - The court should distance itself from the police conduct - The balance between the interests of truth and the integrity of the justice system weighed in favour of exclusion - See paragraphs 46 to 55.

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 23].

R. v. L.T.H., [2008] 2 S.C.R. 739; 379 N.R. 247; 268 N.S.R.(2d) 200; 857 A.P.R. 200; 2008 SCC 49, refd to. [para. 24].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 28].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321; 92 C.C.C.(3d) 404, refd to. [para. 30].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 32].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97, refd to. [para. 35].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289, refd to. [para. 37].

R. v. Nodrick (S.D.) (2010), 260 Man.R.(2d) 198; 2010 MBQB 128, refd to. [para. 39].

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. 40].

Counsel:

Brent I. Davidson and Erika A. Dolcetti, for the Crown;

Wendy Y. Martin White and Inderjit L. Singh, for the accused.

This motion was heard by Greenberg, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on January 27, 2015.