R. v. K.W.J., (2012) 524 A.R. 75

• Judge: Martin, Rowbotham and O'Ferrall, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: February 15, 2012
• Jurisdiction: Northwest Territories
• Citations: (2012), 524 A.R. 75

R. v. K.W.J. (2012), 524 A.R. 75; 545 W.A.C. 75 (NWTCA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR006

Her Majesty The Queen (appellant) v. K.W.J. (respondent)

(A 1 AP 2011000002; 2012 NWTCA 3)

Indexed As: R. v. K.W.J.

Northwest Territories Court of Appeal

Martin, Rowbotham and O'Ferrall, JJ.A.

February 15, 2012.

Summary:

The accused was charged with sexual offences against his wife's niece. Following a voir dire, the accused's inculpatory statement to police was excluded from evidence on the ground that his s. 10(b) Charter right to counsel was infringed. Absent that evidence, which the Crown argued was critical, the jury acquitted the accused. The Crown appealed.

The Northwest Territories Court of Appeal allowed the appeal and ordered a new trial. The trial judge erred in finding that the accused's right to counsel was infringed. The statement should have been admitted.

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 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused, arrested at his work site, was properly advised of his Charter rights before being transported to the R.C.M.P. detachment (one hour trip) - At the detachment, the accused was provided with a list of legal aid lawyers - His request to call his wife was denied - The accused spoke briefly with a legal aid lawyer - Prior to questioning, the accused indicated that he had spoken with a lawyer and was satisfied with the advice provided, which was "don't say much" because it could be used against you - The accused then provided an inculpatory statement - The trial judge held that the accused's s. 10(b) Charter right to counsel was infringed - More should have been done at the work site, including arranging for a lawyer to be present when they arrived at the detachment; his right to counsel was infringed by delay caused by the officer conducting a traffic stop on the way to the detachment; and that there was no reason to deny the accused's request to call his wife where it was obvious that he wanted her help in getting a lawyer - The statement was excluded from evidence and a jury acquitted the accused - The Northwest Territories Court of Appeal allowed the Crown's appeal and ordered a new trial - The trial judge made a number of factual errors, including the import of a 5-10 minute traffic stop delay and when the accused first understood his Charter rights - The critical error was that there was no evidence that the officer was told, or should have known, that the accused wanted to call his wife to assist in obtaining a lawyer - Accordingly, there was no duty to ask the accused why he wished to call his wife - Even if the accused's right to counsel had been infringed, the trial judge erred in excluding the evidence under s. 24(2) - The accused was advised of his right to counsel three times, acknowledged that he understood those rights, and the police held off questioning him until after he spoke with a lawyer and indicated that he was satisfied with that advice.

Civil Rights - Topic 4620.3

Right to counsel - General - Through third party intermediary - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

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

Cases Noticed:

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 26].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 26].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 26].

R. v. Nelson (D.A.) (2010), 490 A.R. 271; 497 W.A.C. 271; 2010 ABCA 349, refd to. [para. 28].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 32].

R. v. Oester (1989), 97 A.R. 389 (Q.B.), refd to. [para. 32].

R. v. Menard (R.K.), [2010] B.C.T.C. Uned. 1416; 11 B.C.L.R.(5th) 162, refd to. [para. 32].

R. v. Johnston (L.L.) (2004), 196 B.C.A.C. 19; 322 W.A.C. 19; 2004 BCCA 148, refd to. [para. 33].

R. v. Adams and Waltz (1989), 33 O.A.C. 148; 49 C.C.C.(3d) 100 (C.A.), refd to. [para. 33].

R. v. Kumric, 2006 ONCJ 24, refd to. [para. 33].

R. v. Singh, 2011 ONCJ 435, refd to. [para. 33].

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. 38].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 38].

R. v. Côté (A.) (2011), 421 N.R. 112; 2011 SCC 46, refd to. [para. 38].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 39].

Counsel:

M. Lecorre, for the appellant;

B. Berish, Q.C., for the respondent.

This appeal was heard on October 18, 2011, before Martin, Rowbotham and O'Ferrall, JJ.A., of the Northwest Territories Court of Appeal.

On February 15, 2012, the following memorandum of judgment was filed by the Court.