R. v. Kamm (L.D.)

• Jurisdiction: Saskatchewan
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Judge: Klebuc, J.
• Citation: 2003 SKQB 567,(2003), 259 Sask.R. 1 (QB)
• Date: 13 January 2003

R. v. Kamm (L.D.) (2003), 259 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. JA.007

Her Majesty the Queen v. Lorne David Kamm

(2002 Q.B.J. No. 6; 2003 SKQB 567)

Indexed As: R. v. Kamm (L.D.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Klebuc, J.

January 13, 2003.

Summary:

The accused was charged with manslaughter and interference with a dead body. The Crown applied for a declaration that admissions made by the accused were voluntary and admissible in evidence. The accused applied for a declaration that the officers conducting the interviews violated his right to counsel and right to remain silent contrary to ss. 7 and 10(b) of the Charter and that any confession or derivative evidence obtained should be excluded from the evidence.

The Saskatchewan Court of Queen's Bench determined the issues accordingly.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused and the victim were common law spouses - The victim disappeared in 1992 and nothing was uncovered after a brief investigation - In 2000, the police reopened the investigation - On May 12, 2001, the accused was brought to the police station for questioning as a witness - He was placed in a locked interview room - At no time did the police officers advise him that he was free to leave - After hours of questioning, the accused asked if they were going to "sit here all day or what" and the officers replied "Til you tell the truth yeah" - The Saskatchewan Court of Queen's Bench held that the accused was detained both physically and psychologically - See paragraphs 38 to 40 and 47 to 48.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused and the victim were common law spouses - The victim disappeared in 1992 and nothing was uncovered after a brief investigation - In 2000, the police reopened the investigation - On May 12, 2001, the police interviewed the accused and informed him that they would meet with him from time to time to keep him informed - In the morning of May 30, 2001, the police attended the accused's residence - The accused invited them in and offered them coffee - At no time did the accused ask the officers to leave - The Saskatchewan Court of Queen's Bench held that the accused was not detained - See paragraphs 60 to 70.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused and the victim were common law spouses - The victim disappeared in 1992 and nothing was uncovered after a brief investigation - In 2000, the police reopened the investigation - On May 12, 2001, the police interviewed the accused and informed him that they would meet with him from time to time to keep him informed - In the morning of May 30, 2001, the police attended the accused's residence - During the interview, the accused admitted to having found the body of the victim on the living room floor and having buried her in the basement in a panic - The officers invited the accused to attend the police station to provide a videotaped statement - After obtaining the confession, the officers shifted their interrogation to whether or not the accused had committed manslaughter - The accused voluntarily went to the police station - The officers informed the accused that he was free to leave at any time - The officers did not arrest the accused following the interview - The Saskatchewan Court of Queen's Bench held that the accused was not detained - In light of the evidence, the court determined that the accused, of his own free will, decided not to leave even after the purpose of the interview had shifted - See paragraphs 71 to 73.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - The accused and the victim were common law spouses - The victim disappeared in 1992 and nothing was uncovered after a brief investigation - In 2000, the police reopened the investigation - On May 12, 2001, the accused was brought to the police station for questioning as a witness - They informed him of his right to counsel - After 20 minutes of questioning, the two police officers concluded that the accused was involved in the victim's disappearance and presumed death - Before proceeding with the second phase of the interview, they provided the accused with a vague police warning - Neither officer re-instructed the accused on his right to legal counsel concerning the issues they intended to pursue during phase two of the interview - The Saskatchewan Court of Queen's Bench held that the accused's right to legal counsel under s. 10(b) of the Charter had been violated - The court stated that "the nature of [the accused's] jeopardy materially changed at the beginning of phase two from an interview concerning the disappearance of a person to the one of being interrogated regarding potential offences of manslaughter and murder" - At that time, it was the duty of the officers to provide the accused with complete information about his rights to counsel as well as information regarding how the different services (legal aid, etc.) could be accessed - See paragraphs 51 to 59.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4609 ].

Civil Rights - Topic 4617.1

Right to counsel - General - Notice of - Sufficiency of - [See Civil Rights - Topic 4609 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused and the victim were common law spouses - The victim disappeared in 1992 and nothing was uncovered after a brief investigation - In 2000, the police reopened the investigation - On May 12, 2001, the accused was brought to the police station for questioning as a witness - The Saskatchewan Court of Queen's Bench held that the accused's right to counsel (Charter, s. 10(b)) had been violated - The court held that any evidence of a material nature obtained during the May 12 interview was conscriptive and the Crown had failed to establish that such evidence would have been discovered by alternative non-conscriptive means - Admission of such evidence would be unfair to the accused and the trial process and would bring the administration of justice into disrepute - See paragraphs 74 to 82.

Criminal Law - Topic 5349

Evidence and witnesses - Confessions and voluntary statements - Warning - Sufficiency of - [See Civil Rights - Topic 4609 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused and the victim were common law spouses - The victim disappeared in 1992 and nothing was uncovered after a brief investigation - In 2000, the police reopened the investigation - In May 2001, the accused was interviewed several times by the police, which resulted in admissions - The accused argued that the statements and admissions were not made voluntarily - The Saskatchewan Court of Queen's Bench rejected the argument - There was no evidence of threats, promises, oppression or trickery - The accused had an operating mind at all times and all his statement had been made freely and voluntarily - See paragraphs 83 to 95.

Cases Noticed:

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 118 D.L.R.(4th) 83; 92 C.C.C.(3d) 289; 33 C.R.(4th) 1, refd to. [para. 15].

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. 15].

R. v. Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129, refd to. [para. 15].

R. v. Smith (J.L.), [1989] 2 S.C.R. 368; 99 N.R. 372; [1989] 6 W.W.R. 289; 39 B.C.L.R.(2d) 145; 71 C.R.(3d) 129; 61 D.L.R.(4th) 462; 50 C.C.C.(3d) 308, refd to. [para. 15].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 58 C.R.(3d) 97; 34 C.C.C.(3d) 385; 41 D.L.R.(4th) 301, refd to. [para. 15].

R. v. Anderson (1984), 7 D.L.R.(4th) 306; 10 C.C.C.(3d) 417 (Ont. C.A.), refd to. [para. 16].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 16].

R. v. Baig, [1987] 2 S.C.R. 537; 81 N.R. 87; 25 O.A.C. 81; 37 C.C.C.(3d) 181, refd to. [para. 16].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 74 C.R.(3d) 129; 53 C.C.C.(3d) 330, refd to. [para. 16].

R. v. Esposito (1985), 12 O.A.C. 350; 24 C.C.C.(3d) 88 (C.A.), refd to. [para. 18].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 18].

R. v. Thompson (1989), 36 O.A.C. 225; 52 C.C.C.(3d) 569 (C.A.), refd to. [para. 18].

R. v. Schmautz, [1990] 1 S.C.R. 398; 106 N.R. 81; 53 C.C.C.(3d) 556, refd to. [para. 18].

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. 18].

R. v. Siemens (R.W.) (1994), 92 Man.R.(2d) 206; 61 W.A.C. 206; 88 C.C.C.(3d) 544; 30 C.R.(4th) 208 (C.A.), refd to. [para. 23].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 70 C.R.(3d) 97; 50 C.C.C.(3d) 1; 47 C.R.R. 171, refd to. [para. 24].

R. v. Logan, Logan and Johnson (1988), 30 O.A.C. 321; 57 D.L.R.(4th) 58; 46 C.C.C.(3d) 354 (C.A.), affd. [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330; 58 C.C.C.(3d) 391; 79 C.R.(3d) 169; 73 D.L.R.(4th) 40; 50 C.R.R. 152, refd to. [para. 24].

R. v. Paternak (C.D.), [1996] 3 S.C.R. 607; 203 N.R. 250; 187 A.R. 395; 127 W.A.C. 395; 110 C.C.C.(3d) 382; 2 C.R.(5th) 119, refd to. [para. 24].

R. v. Sawatsky (W.L.) (1997), 103 O.A.C. 68; 150 D.L.R.(4th) 750; 118 C.C.C.(3d) 17; 9 C.R.(5th) 23 (C.A.), refd to. [para. 24].

R. v. Waskewitch (V.) (2001), 208 Sask.R. 71 (Q.B.), refd to. [para. 45].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 112 C.C.C.(3d) 193; 4 C.R.(5th) 1, refd to. [para. 54].

R. v. Elshaw, [1991] 3 S.C.R. 24; 128 N.R. 241; 3 B.C.A.C. 81; 7 W.A.C. 81; 7 C.R.(4th) 333, refd to. [para. 55].

R. v. L.R.I. and E.T., [1993] 4 S.C.R. 504; 159 N.R. 363; 37 B.C.A.C. 48; 60 W.A.C. 48; 26 C.R.(4th) 119; 109 D.L.R.(4th) 140; 86 C.C.C.(3d) 289; 19 C.R.R.(2d) 156, refd to. [para. 59].

R. v. McIntosh (C.) (1999), 128 O.A.C. 69; 30 C.R.(5th) 161 (C.A.), refd to. [para. 59].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1, refd to. [para. 75].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61; 45 C.C.C.(3d) 46; 66 C.R.(3d) 336, refd to. [para. 75].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385; 124 D.L.R.(4th) 7; 38 C.R.(4th) 265, refd to. [para. 75].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 56 D.L.R.(4th) 673; 46 C.C.C.(3d) 479; 67 C.R.(3d) 87, refd to. [para. 75].

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; 144 D.L.R.(4th) 193; 113 C.C.C.(3d) 321; 5 C.R.(5th) 1, refd to. [para. 75].

Ibrahim v. R., [1914] A.C. 599 (P.C.), refd to. [para. 84].

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; 190 D.L.R.(4th) 257; 147 C.C.C.(3d) 321; 36 C.R.(5th) 129, refd to. [para. 85].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485; 59 C.C.C.(2d) 30; 121 D.L.R.(3d) 578, refd to. [para. 91].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201; 116 D.L.R.(4th) 416; 92 C.C.C.(3d) 11; 32 C.R.(4th) 1; 23 C.R.R.(2d) 6, refd to. [para. 92].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1988) (2002 Looseleaf Update, Release 29), generally [para. 22]; paras. 4.6000 to 4.60380 [para. 15].

Counsel:

Judith L. Halyk, for the Crown;

Daryl E. Labach, for the accused.

This voir-dire was heard by Klebuc, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on January 13, 2003.