R. v. McKinnon (N.L.) et al.,

• Judge: Conrad,Sirrs,Watson
• Neutral Citation: 2007 ABCA 382
• Date: 12 June 2007
• Court: Court of Appeal (Alberta)

R. v. McKinnon (N.L.) (2007), 422 A.R. 265 (CA);

      415 W.A.C. 265

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. DE.029

Her Majesty the Queen (respondent) v. Nancy Lee McKinnon and Joseph George Bruso (appellants)

(0401-0171-A; 0401-0173-A; 2007 ABCA 382)

Indexed As: R. v. McKinnon (N.L.) et al.

Alberta Court of Appeal

Conrad and Watson, JJ.A., and Sirrs, J.(ad hoc)

December 6, 2007.

Summary:

McKinnon and Bruso were convicted of the murder of McKinnon's estranged husband. They appealed their convictions.

The Alberta Court of Appeal dismissed the appeals.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - McKinnon and Bruso were charged with the murder of McKinnon's estranged husband - McKinnon was arrested in a parking lot where she was advised of her Charter rights, including her right to counsel - At the police station, McKinnon was taken to a telephone and told she could call her lawyer - She tried to contact her divorce lawyers but they were unavailable - She left voice mail messages - Police then gave McKinnon a list of lawyers who provided free legal advice - She spoke to one lawyer on that list - She was then interrogated for three and one half hours - McKinnon applied for exclusion of the statement - She alleged breaches of her s. 10(b) Charter right to counsel of her choice - The trial judge held that there was no Charter breach of the accused's right to choice of counsel - While s. 10(b) guaranteed the accused the right to her choice of counsel, at no time did she express a desire to wait for her divorce lawyers to return her voice messages - The accused accepted duty counsel as an alternative - The Alberta Court of Appeal affirmed the decision - Continued police questioning after the suspect had received legal advice did not offend s. 7 of the Charter unless it was overbearing to the point where it overrode the suspect's right to choose whether to answer or not or deprived him of an operating mind - A detainee's right under s. 10(b) of the Charter also included that the police should not dissuade the detainee from talking to counsel nor denigrate legal advice received or to be received by the detainee - Neither of these situations was found here - See paragraphs 127 to 143.

Criminal Law - Topic 4358

Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - McKinnon and Bruso (the appellants) were convicted of the murder of McKinnon's estranged husband - They appealed, asserting that the trial judge never alluded to the rule in Hodge's Case - Both appellants asserted that the circumstantial evidence was equally consistent with Juma being the shooter, not the appellants - They pointed to: (a) inconsistencies of the car sighting witnesses concerning the make of the vehicle parked out in Rau's field (where the victim was murdered); (b) that Juma had access to Ian's cell phone that night, as did McKinnon (where the victim received a phone call from Ian's cell phone); (c) that Juma had access to the shell casings when Bruso test fired the Savage rifle and could have planted it at the crime scene; and (d) that Juma could have been on the move towards Crossfield at 1:11 a.m. when a phone call from his daughter was picked up by a different tower in Calgary than other calls were that night - The Alberta Court of Appeal dismissed the appeals - Overall, this was not just a circumstantial evidence case - Juma's evidence of admissions took it out of that category - What evidence there was of a circumstantial nature was compelling - The trial judge elected to focus on the main evidence in controversy - He did not itemize the evidence in the comprehensive manner that Crown counsel in his argument did though he plainly accepted key Crown analytical points - Accordingly, Hodge's Case did not apply - See paragraphs 100 to 111.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - [See Criminal Law - Topic 5241 ].

Criminal Law - Topic 4362

Procedure - Charge or directions - Jury or judge alone - Directions regarding separation of evidence against several accused in joint trial - McKinnon and Bruso (the appellants) were convicted of the murder of McKinnon's estranged husband - They appealed - Bruso asserted that McKinnon lied that she was home all night after about 10:00 or 10:30 p.m., which was disproven by the 7-Eleven surveillance photo, was admissible only as against McKinnon, and not as against Bruso - Bruso contended that the trial judge did not reveal that he only used that statement against McKinnon - The Alberta Court of Appeal dismissed the appeals - This contention was speculative - The trial judge was aware of the limited use that could be made of McKinnon's statement, having been advised by Crown counsel that it could not be used to implicate Bruso - Bruso's position on this required reading his police statement into pieces to try to distance Bruso from McKinnon's falsehood - See paragraphs 161 to 163.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - McKinnon and Bruso (the appellants) were convicted of the murder of McKinnon's estranged husband - They appealed, asserting that the trial judge erred by failing to give himself a warning under R. v. Vetrovec (S.C.C.) - The appellants also contended that the trial judge erred in finding that there was sufficient evidence capable of inducing a rational belief that Juma was telling the truth - They pointed to Juma's unsavory character, his admissions of lying to the police, and his potential involvement in the offence in support of their argument - The Alberta Court of Appeal dismissed the appeals - The trial judge did not err in this regard - He clearly was aware of concerns surrounding the evidence, not only of Juma, but also the "pathetic plethora" of would be suitors for McKinnon's affections - He heard witnesses who admitted misleading police and in Juma's case even that he seriously considered taking a murder contract - Moreover, the trial judge found that Juma's evidence was corroborated in some aspects - Confirmation of evidence of an accomplice had to offer some reassurance that the trier of fact can have confidence in the material parts of the evidence of the accomplice - Finally, the trial judge believed that Juma's prior uncooperativeness with the police was due to his relationship with McKinnon - See paragraphs 117 to 126.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence conduction of accused - McKinnon and Bruso (the appellants) were convicted of the murder of McKinnon's estranged husband - They appealed, asserting that the trial judge erred in considering Bruso's post-offence conduction in two respects - First, Juma's evidence that he shaved his head two weeks after the murder, at Bruso's insistence or at least encouragement according to Juma, was relevant for Juma's guilt, not Bruso's - Second, the trial judge's interpretation of whether Harris considered her vehicle to be in need of washing the day after the murder was not, according to Bruso, a fair interpretation - The Alberta Court of Appeal dismissed the appeals - In the specific circumstances of this case, the events surrounding Juma shaving his head, in the context of the case was not neutral although one might debate its weight - It was not, when it occurred, a spontaneous act by Juma although he had previously considered it - In the overall context of what McKinnon sought to do as to deflecting liability, it was not irrelevant - As regards the evidence concerning McKinnon and Bruso offering to wash Harris' car the day after the murder, to the extent that the trial judge might have considered it, the trial judge did not err in his interpretation - The mere existence of hypothetical reasons for this conduct on the part of Bruso was not the same thing as an equally persuasive hypothesis supported by evidence providing reasons for this conduct - If consideration of the post-offence conduct was in error, it was a "minor error" not affecting the decision - See paragraphs 154 to 160.

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - McKinnon and Bruso (the appellants) were convicted of the murder of McKinnon's estranged husband - They appealed, asserting that the trial judge erred by finding that eyewitness descriptions of the car parked on the approach to Rau's field (where the victim was murdered) were sufficient to identify the vehicle used by the appellants (Toyota Camry borrowed from a friend) - The appellants treated this evidence as eye witness evidence subject to the same concerns as to unreliability that was given to fleeting glance evidence concerning human beings - The appellants placed emphasis on the somewhat inconsistent descriptions of the vehicle in question - The Alberta Court of Appeal dismissed the appeals - Positive identification of the vehicle at the scene was not an element of the offence - The trial judge used the "car sighting" evidence as to the time line of the victim's death - Moreover, the vehicle would likely be at the scene on the theories of the appellants as well as the Crown - As a piece of the case, and not an essential element of the offence, proof of likelihood that the vehicle was there was sufficient - See paragraphs 112 to 116.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - McKinnon and Bruso were charged with the murder of McKinnon's estranged husband - McKinnon was arrested, gave a statement and was placed in a holding cell - An undercover officer was placed with McKinnon and McKinnon made a further statement to the undercover officer (cell plant) - The trial judge allowed the admission of the cell plant evidence - The Alberta Court of Appeal affirmed the decision - If such statements met the criteria for voluntariness, and if they were not made to respond to any state influence at the time they were made, they were not inadmissible merely because the speaker might happen to remember her earlier dealings with state agents - They would not lose their character as being self-impelled statements unless the evidence showed a reason to conclude that they were converted to conscripted evidence - Further, the impugned statements were not mentioned by the trial judge as part of the basis for conviction - See paragraphs 145 to 153.

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Counsel:

P.J. Royal, Q.C., for the appellant, Bruso;

A. Hepner, Q.C., for the appellant, McKinnon;

G. Tomljanovic, for the respondent.

These appeals were heard on June 12, 2007, by Conrad and Watson, JJ.A., and Sirrs, J.(ad hoc), of the Alberta Court of Appeal. The Court of Appeal released the following memorandum of judgment on December 6, 2007.