R. v. McIntosh (C.), (1999) 128 O.A.C. 69 (CA)

• Judge: Weiler, Rosenberg and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 20, 1999
• Jurisdiction: Ontario
• Citations: (1999), 128 O.A.C. 69 (CA)

R. v. McIntosh (C.) (1999), 128 O.A.C. 69 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. DE.046

Her Majesty The Queen (respondent) v. Caleb McIntosh (appellant)

(C25225)

Indexed As: R. v. McIntosh (C.)

Ontario Court of Appeal

Weiler, Rosenberg and Feldman, JJ.A.

December 20, 1999.

Summary:

The accused, Scott-Coe and Brown went to an abandoned gravel pit. Brown did not return and was later found dead at the bot­tom of a cliff at the edge of the pit. The accused and Scott-Coe asserted that Brown committed suicide. To convince Brown's parents that the story was true, the accused agreed to take a polygraph test. He failed. During the following interview the accused confessed to the murder. He was subse­quently convicted of first degree murder. The accused appealed arguing, inter alia, that the trial judge erred in admitting his post-polygraph confessions.

The Ontario Court of Appeal allowed the appeal and ordered a new trial.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissable - After failing a polygraph test the accused was ques­tioned about his participation in a murder -He confessed and was subsequently con­victed of first degree murder - On appeal, the Ontario Court of Appeal held the ac­cused's s. 10(b) Charter rights were violated when the police failed to fully inform him of his right to retain and in­struct counsel, and to exercise that right without delay after he actually confessed to the murder - Consequently, the evidence taken after the violation was excluded under s. 24(2) - A new trial was ordered - An issue arose regarding whether the excluded portion of the accused's confes­sion should result in the exclusion of his subsequent statements in whole or in part -The Court of Appeal discussed the issue, however, the court declined to determine the matter in advance of the rehearing - See paragraphs 54 to 67.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - After failing a polygraph test the accused was questioned about his participation in a murder - He confessed to the murder - The accused was convicted - On appeal, the accused argued that his s. 10(a) and 10(b) Charter rights were violated because the police failed to fully inform him of his right to retain and instruct counsel, and to exercise that right without delay after he failed the polygraph - The Ontario Court of Appeal held that the accused's rights were violated, but not until after he con­fessed to the murder - "Once the [accused] confessed to pushing Brown over the edge of the gravel pit, the initial police position that the [accused] was not a suspect changed. This change required a fresh concern for the [accused's] s. 10 rights. The [accused] was no longer free to leave and would have been detained had he tried to do so" - See paragraph 49.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - After failing a polygraph test the accused was questioned about his participation in a murder - He confessed to the murder - The accused was convicted - On appeal, the accused argued that his s. 10(a) and 10(b) Charter rights were violated because the police failed to fully inform him of his right to retain and instruct counsel, and to exercise that right without delay after he failed the polygraph - Particularly, the polygraph operator simply reminded him of the rights that were discussed prior to the taking of the polygraph - The accused agreed that he remembered the discussion and went on with his confession - The Ontario Court of Appeal held that the accused's rights were violated, but not until after he actually confessed to the murder - The reminder was not enough - Moreover, the accused did not "waive" his rights when he told the operator that he understood the earlier rights and wished to continue - See paragraphs 43 to 50.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See both Civil Rights - Topic 4604 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See second Civil Rights - Topic 4604 ].

Civil Rights - Topic 4617.1

Right to counsel - General - Notice of - Sufficiency of - [See both 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 4602 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused, Scott-Coe and Brown went to an abandoned gravel pit - Brown was found dead at the bottom of a cliff at the edge of the pit - Thereafter, the accused and Scot-Coe were both charged with first degree murder - By the time of the accused's trial, the charge against Scott-Coe had been reduced to being an accessory after the fact - Scott-Coe testi­fied as a Crown witness while the charge against him remained outstanding - The accused was convicted - He appealed arguing, inter alia, that the trial judge failed to appropriately caution the jury about the special dangers associated with the testimony of an accomplice whose charges remain outstanding - The Ontario Court of Appeal reviewed the jury charge and rejected the accused's argument - See paragraphs 88 to 92.

Criminal Law - Topic 5214.7

Evidence and witnesses - Admissibility and relevancy - Circumstantial evidence - [See first Evidence - Topic 4841 ].

Criminal Law - Topic 5335

Evidence and witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - After failing a polygraph test the accused was questioned about his participation in a murder - He confessed to the murder stating, inter alia, that prior to taking the test he had made up his mind to confess to the crime if he failed the polygraph - The accused was convicted - On appeal, the accused argued that the confession was involuntary be­cause of several police inducements made to him - The Ontario Court of Appeal held that the confession was not involuntary on this ground - Rather, it was the carrying out of an express intention formulated by the accused in advance - Consequently, any police inducements offered to him to en­courage his confession did not have the effect of persuading him to confess - See paragraphs 25 to 30.

Criminal Law - Topic 5335

Evidence and witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - [See first Crim­inal Law - Topic 5355 ].

Criminal Law - Topic 5337

Evidence and witnesses - Confessions and voluntary statements - Admissibility - General - After failing a polygraph test the accused was questioned about his par­ticipation in a murder - He confessed to the murder - The accused was convicted - On appeal, the accused argued that the confession was involuntary because the police did not explicitly inform him of what would happen if he failed the test (i.e., that there would a post-test interview) - The Ontario Court of Appeal rejected this argument - The accused was given the option to leave after the test - He chose to stay for the results - Moreover, "[i]nas­much as the [accused] testified that he had made up his mind to confess to the crime in the event that he 'failed' the polygraph test, the [accused] must have contemplated having some conversation with the poly­graph operator after the polygraph test" - See paragraphs 35 to 42.

Criminal Law - Topic 5338

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

Criminal Law - Topic 5339.2

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Effect of prior inadmissible statements - The Ontario Court of Appeal discussed when subsequent statements by an accused would be admissible notwithstanding that the prior confession had been determined to be involuntary - See paragraphs 54 to 67.

Criminal Law - Topic 5339.2

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Effect of prior inadmissible statements - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 5341

Evidence and witnesses - Confessions and voluntary statements - Whether voluntary and admissible - Review of ruling of trial judge by appeal court - [See second Crim­inal Law - Topic 5355 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The Ontario Court of Appeal stated that "in order to be voluntary, a statement must be the product of the accused person's free will; that is, it must result from a choice on the part of the accused to speak. The statement must be the product of an oper­ating mind in the sense that the accused has some awareness of what is at stake. Also, the Crown must prove beyond a reasonable doubt that the confession or incriminating statement was not made as a result of threats or inducements held out by a person in authority. Treatment of the accused by the police surrounding the taking of the statement, such as the denial of food, clothing or sleep, may create an atmosphere of oppression and undermine the accused's freedom to choose whether or not to speak, even though no threat or inducement is communicated verbally. In such circumstances of oppressiveness, the statement will also be excluded ... Finally, the trial judge has a common law power apart from the voluntariness rules to ex­clude evidence, including a confession, to ensure a fair trial" - See paragraph 20.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The Ontario Court of Appeal stated that the determination of whether an accused's statement was voluntary was "largely a question of fact. The standard used by an appellate court to review a trial judge's decision in this regard is therefore limited to determining whether the trial judge erred in his assessment of the evidence, failed to consider relevant circumstances, or failed to apply the correct principles" - See paragraph 21.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The Ontario Court of Appeal reviewed the common law requirement that confessions must be voluntary - See paragraphs 20 to 31.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, etc. - General prin­ciples - Admissibility - The accused ap­pealed his first degree murder conviction - He argued, inter alia, that the trial judge erred in refusing to allow the defence to show the jury videotaped statements made by Scott-Coe, the person the accused al­leged killed the victim - Particularly, Scott-Coe gave one written statement and four recorded statements regarding the victim's death - At trial, Scott-Coe admitted that his first four statements were false - Pursuant to s. 10 of the Canada Evidence Act, the accused sought to play the three videotaped statements in which Scott-Coe had admit­tedly lied - Section 10 stated that the con­tent of a previous statement could be put to a witness as a prior inconsistent state­ment - Alternatively, the accused sought to introduce the tapes so that the jury might observe Scott-Coe's demeanour on the occasions when he admitted to lying to the police - The Ontario Court of Appeal declined to hold that the trial judge erred where the accused was not prejudiced by his refusal to allow the tapes' introduction - See paragraphs 80 to 84.

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements (incl. videotaped state­ments) - [See Criminal Law - Topic 5360 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, etc. - Warning to jury of danger of reliance on - [See Criminal Law - Topic 4354 ].

Evidence - Topic 340

Circumstantial evidence - Proof of identity - [See first Evidence - Topic 4841 ].

Evidence - Topic 2727

Special modes of proof - Polygraph - Pre or post-test interview - [See both Civil Rights - Topic 4604 and Criminal Law - Topic 5337 ].

Evidence - Topic 3241

Documentary evidence - Admission under Evidence Acts - General - [See Criminal Law - Topic 5360 ].

Evidence - Topic 4841

Witnesses - Examination - Impeaching character - General - The accused, Scott-Coe and Brown went to an abandoned gravel pit - Brown was later found dead at the bottom of a cliff at the edge of the pit - Thereafter, the accused was convicted of first degree murder - He appealed arguing, inter alia, that the trial judge misapplied the collateral fact rule to exclude a wit­nesses' evidence - Particularly, the accused asserted that the murder was committed by Scott-Coe - To support his allegation the accused wanted Gagne to testify that the day before the murder she was at the pit with Scott-Coe - At the edge of the pit, Scott-Coe "grabbed her and shook her saying, 'Saved your life'" - Moreover, Gagne was going to testify that she saw Scott-Coe perform a similar action with another girl - The Ontario Court of Appeal agreed that the collateral rule did not apply where the evidence was not directed solely at impeaching Scott-Coe's credibility - Rather it was circumstantial evidence that the defence could rely on to support its position that the person who killed Brown was Scott-Coe, not the accused - See para­graphs 85 to 87.

Evidence - Topic 4841

Witnesses - Examination - Impeaching character - General - The Ontario Court of Appeal stated that the effect of the col­lateral fact rule was that "subject to certain exceptions, a party is not entitled to intro­duce extrinsic evidence to contradict the testimony of the opposing party's witness unless that extrinsic evidence is relevant to some issue beyond merely contradicting the witness" - See paragraph 86.

Evidence - Topic 4846

Witnesses - Examination - Impeaching character - Admissible evidence to impeach character - [See both Evidence - Topic 4841 ].

Evidence - Topic 5205

Witnesses - Corroboration - General prin­ciples - Circumstantial evidence as corrob­oration - [See first Evidence - Topic 4841 ].

Cases Noticed:

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481; 60 C.R.(3d) 1, refd to. [para. 18].

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. 20].

R. v. Alexis (1994), 35 C.R.(4th) 117 (Ont. Gen. Div.), refd to. [para. 20].

R. v. Hoilett (C.) (1999), 121 O.A.C. 391; 136 C.C.C.(3d) 449 (C.A.), refd to. [para. 20].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 101 C.C.C.(3d) 193; 128 D.L.R.(4th) 98, refd to. [para. 20].

R. v. White (J.K.) (1999), 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161; 135 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 20].

R. v. Oikle (R.F.) (1998), 164 N.S.R.(2d) 342; 491 A.P.R. 342; 122 C.C.C.(3d) 506 (C.A.), refd to. [para. 21].

R. v. Hatton (1978), 39 C.C.C.(3d) 281 (Ont. C.A.), refd to. [para. 21].

R. v. Hobbins, [1982] 1 S.C.R. 553; 41 N.R. 433; 66 C.C.C.(2d) 289, refd to. [para. 22].

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. 22].

R. v. Wood (D.A.) (1994), 135 N.S.R.(2d) 334; 386 A.P.R. 334; 94 C.C.C.(3d) 193 (C.A.), leave to appeal refused (1995), 193 N.R. 238; 145 N.S.R.(2d) 80; 418 A.P.R. 80 (S.C.C.), refd to. [para. 24].

R. v. MacNeil (F.D.) (1995), 138 N.S.R.(2d) 117; 394 A.P.R. 117 (C.A.), leave to appeal refused (1995), 94 N.R. 80; 145 N.S.R.(2d) 320; 118 A.P.R. 320 (S.C.C.), refd to. [para. 24].

R. v. Reyat (I.S.) (1993), 24 B.C.A.C. 161; 40 W.A.C. 161; 80 C.C.C.(3d) 210 (C.A.), leave to appeal refused (1993), 159 N.R. 320; 33 B.C.A.C. 319; 54 W.A.C. 319 (S.C.C.), refd to. [para. 25].

R. v. Barton (S.) (1993), 64 O.A.C. 17; 81 C.C.C.(3d) 574 (C.A.), refd to. [para. 30].

R. v. Nugent (1988), 84 N.S.R.(2d) 191; 213 A.P.R. 191; 42 C.C.C.(3d) 431 (C.A.), refd to. [para. 33].

R. v. Amyot (S.) (1990), 30 Q.A.C. 140; 58 C.C.C.(3d) 312 (C.A.), refd to. [para. 41].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289; 4 C.R.(4th) 144; 3 C.R.R.(2d) 315, refd to. [para. 49].

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. 50].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289; 33 C.R.(4th) 1, refd to. [para. 53].

R. v. Pozniak (W.), [1994] 3 S.C.R. 310; 172 N.R. 72; 74 O.A.C. 232; 6 M.V.R.(3d) 113; 92 C.C.C.(3d) 472, refd to. [para. 53].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1; 92 C.C.C.(3d) 423, refd to. [para. 53].

R. v. Collins (M.E.), [1995] 2 S.C.R. 1104; 183 N.R. 285; 82 O.A.C. 365; 99 C.C.C.(3d) 385; 40 C.R.(4th) 277, refd to. [para. 58].

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; 113 C.C.C.(3d) 321; 5 C.R.(5th) 1, refd to. [para. 59].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1; 115 C.C.C.(3d) 129, refd to. [para. 59].

R. v. Caputo (E.) (1997), 98 O.A.C. 30; 114 C.C.C.(3d) 1 (C.A.), refd to. [para. 59].

R. v. B.G. (1999), 240 N.R. 260; 174 D.L.R.(4th) 301; 135 C.C.C.(3d) 303 (S.C.C.), refd to. [para. 64].

R. v. Liew (K.L.) (1999), 244 N.R. 249; 244 A.R. 1; 209 W.A.C. 1; 137 C.C.C.(3d) 353, refd to. [para. 66].

R. v. Malone (1984), 2 O.A.C. 321; 11 C.C.C.(3d) 34 (C.A.), refd to. [para. 75].

R. v. Proverbs (1983), 2 O.A.C. 98; 9 C.C.C.(3d) 249 (C.A.), refd to. [para. 82].

R. v. A.R.B. (1998), 113 O.A.C. 286; 41 O.R.(3d) 361 (C.A.), leave to appeal refused (1999), 243 N.R. 198; 126 O.A.C. 198 (S.C.C.), refd to. [para. 86].

R. v. Riezebos (1975), 26 C.C.C.(2d) 1 (Ont. C.A.), refd to. [para. 88].

Counsel:

Ian R. Smith, for the respondent;

Michael Code and Jonathan Dawe, for the appellant.

This appeal was heard on March 29 and 30, 1999, before Weiler, Rosenberg and Feldman, JJ.A., of the Ontario Court of Appeal.

The judgment of the court was delivered by Weiler, J.A., and released on December 20, 1999.