R. v. McKay (S.A.),

• Jurisdiction: Manitoba
• Judge: Duval, J.
• Neutral Citation: 2003 MBQB 141
• Citation: 2003 MBQB 141,(2003), 175 Man.R.(2d) 121 (QB),[2004] 1 WWR 455,16 CR (6th) 347,[2003] CarswellMan 243,[2003] MJ No 208 (QL),175 Man R (2d) 121,175 Man.R.(2d) 121,(2003), 175 ManR(2d) 121 (QB),175 ManR(2d) 121,[2003] M.J. No 208 (QL)
• Date: 10 June 2003
• Court: Court of Queen's Bench of Manitoba (Canada)

R. v. McKay (S.A.) (2003), 175 Man.R.(2d) 121 (QB)

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. JN.043

Her Majesty The Queen v. Sheldon Anthony McKay (accused)

(CR 01-01-22252; 2003 MBQB 141)

Indexed As: R. v. McKay (S.A.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Duval, J.

June 10, 2003.

Summary:

The Crown sought to tender in evidence the accused's statements, which consisted of: (a) a brief conversation with police officers in the police vehicle on the way to the police station after the accused was arrested for murder; and (b) a videotaped statement taken at the police station. Defence counsel submitted that both statements should be excluded on the grounds that: (a) the Crown failed to establish that the statements were voluntary, and in the case of the statement made in the police vehicle, that it was accurately recorded; (b) the police violated the accused's right under s. 9 of the Charter not to be arbitrarily detained; (c) the police violated the accused's right on arrest to be informed promptly of the reasons therefore, in breach of s. 10(a) of the Charter; (d) the police violated the accused's right to retain and instruct counsel without delay and to be informed of that right, in breach of s. 10(b) of the Charter; and (e) the police violated the accused's right to remain silent during the taking of the videotaped statement, in breach of s. 7 of the Charter.

The Manitoba Court of Queen's Bench found that the statements were voluntary and that there had been no breach of the accused's ss. 9, 10(a) or 10(b) Charter rights. However, the court held that a breach of the accused's right to remain silent pursuant to s. 7 of the Charter had been established. The court held that as this was conscripted evidence, the admission of the accused's statement after his assertion, "I've got no comments. I've got no comments to any questions any more, man. That's all I ... want to say ...", would result in trial unfairness and it was excluded.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - The accused made a videotaped statement to police following his arrest for murder - Four times during the interrogation the accused stated that he had nothing to say - The Manitoba Court of Queen's Bench held that once the accused clearly and consistently, by four consecutive statements, asserted his right to remain silent, the police could not override that right by asserting a right to continue questioning him whether he wished to answer or not - The court held that there had been a breach of the accused's right to remain silent pursuant to s. 7 of the Charter - The court further held that as this was conscripted evidence, the admission of the accused's statement after his assertion, "I've got no comments. I've got no comments to any questions any more, man. That's all I ... want to say ...", would result in trial unfairness and was excluded - See paragraphs 83 to 102.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - The accused was arrested for murder and was advised of his right to counsel - Defence counsel argued that the accused was not advised that if he chose to exercise his right to retain and instruct counsel without delay, the police must discontinue questioning until he had an opportunity to do so - The Manitoba Court of Queen's Bench held that there was no breach of s. 10(b) of the Charter - The accused was advised of his right to retain and instruct counsel without delay in private, his right to free legal advice and representation, and his right to be provided with a telephone and telephone directory - He was also provided with legal aid duty counsel's number - The accused indicated that he understood and he exercised his right to counsel on two occasions during a videotaped interview - On each occasion, the police discontinued questioning - See paragraphs 81 to 82.

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators - [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 3160 ].

Criminal Law - Topic 5336.1

Evidence and witnesses - Confessions and voluntary statements - Recording or videotaping interrogation - The Crown sought to tender in evidence the accused's statement made during a brief conversation with police officers in the police vehicle on the way to the police station after the accused was arrested for murder - The statement in the police vehicle was taken down in the officer's notebook - Defence counsel submitted that the failure to record the statement by audio or video or to provide a sufficient substitute for a recording should raise a reasonable doubt as to its accuracy and should result in its being declared inadmissible - The police vehicle was not equipped with a video recording device and tape recorders were not provided to the officers - The Manitoba Court of Queen's Bench did not believe the accused's version of the conversation in the police vehicle and held that while the police officer's notes were not initialled or signed by the accused, it accepted that they were an accurate recording of the conversation - The officer's notes were a satisfactory substitute for an audiotaped or videotaped record - See paragraphs 24 to 65.

Criminal Law - Topic 5338

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Where accused's rights violated - [See Civil Rights - Topic 3160 ].

Cases Noticed:

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, refd to. [para. 21].

R. v. Hoilett (C.) (1999), 121 O.A.C. 391; 136 C.C.C.(3d) 449 (C.A.), refd to. [para. 23].

R. v. Moore-McFarlane (G.C.) et al. (2001), 152 O.A.C. 129 (C.A.), consd. [para. 27].

R. v. Kjelshus, [2001] S.J. No. 693 (Prov. Ct.), refd to. [para. 34].

R. v. Delmorone, [2002] O.J. No. 3988, consd. [para. 34].

R. v. Bunn (C.) (2001), 153 Man.R.(2d) 264; 238 W.A.C. 264 (C.A.), consd. [para. 34].

R. v. Williams (C.) (2002), 168 Man.R.(2d) 7 (Prov. Ct.), consd. [para. 34].

R. v. Francis (M.W.) (2002), 165 O.A.C. 131 (C.A.), consd. [para. 34].

R. v. Cameron, [2002] O.J. No. 3545 (Sup. Ct.), consd. [para. 34].

R. v. Haynes (G.E.), [2001] O.T.C. 853 (Sup. Ct.), consd. [para. 34].

R. v. Ilina (L.) (2001), 159 Man.R.(2d) 293 (Q.B.), consd. [para. 34].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 50].

R. v. Barrett (1993), 64 O.A.C. 99; 13 O.R.(3d) 587; 82 C.C.C.(3d) 266 (C.A.), refd to. [para. 61].

R. v. Lim (No. 3) (1990), 1 C.R.R.(2d) 148 (Ont. H.C.), refd to. [para. 61].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), affd. [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129; 45 C.R.R. 49, refd to. [para. 67].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259; 19 C.C.C.(2d) 129; 50 D.L.R.(3d) 753, refd to. [para. 68].

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; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 68].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 75 C.R.(3d) 1; 53 C.C.C.(3d) 316; 56 D.L.R.(4th) 673, refd to. [para. 69].

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. 70].

R. v. Duguay, Murphy and Sevigny (1985), 8 O.A.C. 31; 18 C.C.C.(3d) 289 (C.A.), affd. [1989] 1 S.C.R. 83; 91 N.R. 201; 31 O.A.C. 177; 46 C.C.C.(3d) 1, refd to. [para. 70].

R. v. Sawchuk (K.) (1997), 117 Man.R.(2d) 282 (Q.B.), refd to. [para. 70].

R. v. Paschal (1986), 74 N.S.R.(2d) 184; 180 A.P.R. 184 (T.D.), refd to. [para. 70].

R. v. Otis (2000), 37 C.R.(5th) 320 (Que. C.A.), consd. [para. 83].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1; 77 C.R.(3d) 145; 49 C.R.R. 114; 47 B.C.L.R.(2d) 1, consd. [para. 85].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 34 C.C.C.(3d) 385; 41 D.L.R.(4th) 301; 58 C.R.(3d) 97, consd. [para. 85].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129; 37 C.R.R. 369; 67 C.R.(3d) 209, refd to. [para. 85].

R. v. Smith, [1989] 2 S.C.R. 368; 99 N.R. 372, refd to. [para. 85].

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; 28 C.R.R.(2d) 244, refd to. [para. 85].

R. v. Liew (K.L.), [1999] 3 S.C.R. 227; 244 N.R. 249; 244 A.R. 1; 209 W.A.C. 1; 137 C.C.C.(3d) 353, refd to. [para. 88].

R. v. Timm (1998), 131 C.C.C.(3d) 306 (Que. C.A.), affd. [1999] 3 S.C.R. 666; 140 C.C.C.(3d) 225, refd to. [para. 97].

R. v. Guimond (N.B.) et al. (1999), 137 Man.R.(2d) 132 (Q.B.), refd to. [para. 98].

R. v. Hicks (1990), 104 N.R. 399; 37 O.A.C. 143; 54 C.C.C.(3d) 575 (S.C.C.), refd to. [para. 98].

R. v. Olson (D.T.), [1998] B.C.T.C. Uned. 192 (S.C.), refd to. [para. 101].

Authors and Works Noticed:

Kaufman Report - see Ontario, Attorney General Report, The Commission of Proceedings Involving Guy Paul Morin.

Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (September 2001), p. 19 [para. 33].

Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin (The Kaufman Report) (1998), generally [para. 38].

Sophonow Report - see Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation.

White, W.S., False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions (1997), 32 Harv. C.R. - C.C.L. Rev. 105, pp. 153, 154 [para. 25].

Counsel:

A. Gerald Bowering and Tracey M. Lord, for the Crown;

Martin D. Glazer, for Sheldon Anthony McKay.

This matter was heard before Duval, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on June 10, 2003.