R. v. Meyers (K.S.), (2008) 274 Nfld. & P.E.I.R. 5 (NLCA)

• Judge: Wells, C.J.N.L., Welsh and Mercer, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: November 08, 2007
• Jurisdiction: Newfoundland and Labrador
• Citations: (2008), 274 Nfld. & P.E.I.R. 5 (NLCA);2008 NLCA 13

R. v. Meyers (K.S.) (2008), 274 Nfld. & P.E.I.R. 5 (NLCA);

    837 A.P.R. 5

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. FE.024

Keith Shawn Meyers (appellant) v. Her Majesty the Queen (respondent)

(06/97; 2008 NLCA 13)

Indexed As: R. v. Meyers (K.S.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Wells, C.J.N.L., Welsh and Mercer, JJ.A.

February 21, 2008.

Summary:

The accused was convicted by jury of conspiracy to traffic and trafficking in marijuana and was sentenced to 18 months' imprisonment and three years' probation. The accused appealed his conviction and applied for leave to appeal the sentence.

The Newfoundland and Labrador Court of Appeal, Mercer, J.A., dissenting, dismissed the conviction appeal and granted leave to appeal the sentence, but dismissed the appeal.

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) - At issue included whether the voice identification evidence respecting the accused should be excluded based on an alleged violation of the accused's s. 7 Charter right to silence - The Newfoundland and Labrador Court of Appeal, in reviewing the law respecting s. 7, stated that "Identification evidence is not all of one type. Sometimes the cooperation of the accused is necessary. The extent of interference with the individual, and the seriousness of that interference, falls on a continuum. Factors that assist in assessing where on the continuum particular evidence falls include: whether there is penetration into or removal of a substance from the body, such as DNA sampling; whether the taking of the evidence, while distasteful, is insubstantial, of short duration and leaves no lasting impression, such as fingerprinting; whether there is a probing into the individual's private life; and whether the evidence is generally available to the public, such as facial features. ... Voice identification falls at the least serious end of the continuum. Though the participation of the individual is necessary, a person's voice is generally made available in a public way. Obtaining the evidence is non-intrusive in nature. While the person has some control over who may hear his voice at a particular time, social intercourse by way of conversation is normal, and it would not be unusual for a stranger to hear the speaker's voice. Further, a distinction may properly be drawn between the use of a person's voice for purposes of identification and for the content of what is said. The latter engages issues related to inculpatory admissions by an accused ..." - See paragraphs 23 and 24.

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) - At issue included whether the voice identification evidence respecting the accused should be excluded based on an alleged violation of the accused's s. 7 Charter right to silence - The Newfoundland and Labrador Court of Appeal held that "the fact that voice identification falls at the least serious end of the continuum affects the outcome in balancing the interests of the individual against those of the state in law enforcement. Obtaining the evidence is non-intrusive in nature. The individual's dignity and integrity are unaffected. The individual has a choice whether to speak. A voice does not, as such, generally engage a particular privacy interest since normal social intercourse makes the voice available even to strangers. Bearing these factors in mind, the right to silence has historically been concerned with content in the sense of confessions and inculpatory statements and admissions, not sound in the sense of identifying characteristics of speech. Finally, it is difficult to draw persuasive distinctions between auditory and visual identification of a person. In my view, the Charter guaranteed right to silence was not intended for this purpose. It seems to me that a person's face is as self-incriminatory as that person's voice." - See paragraph 27.

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 Newfoundland and Labrador Court of Appeal stated that flowing from the s. 10(b) right to counsel was a responsibility on counsel to explain to the accused his rights and advise him how to exercise those rights - The court agreed that, where an accused has been afforded the opportunity to consult with counsel, there was no obligation on the investigating authorities to forewarn the accused that they were present for the purpose of voice identification - The court also agreed that the failure of the police to advise the accused of the wisdom of not speaking could not (1) be seen as an infringement of the right to silence or (2) turn a conversation into a search - See paragraphs 28 to 32.

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) - Police suspected that Keith Meyers was part of a drug trafficking conspiracy - Manuel, the lead investigating officer, learned that Meyers was in police custody on an unrelated charge - Manuel wanted to compare Meyers' voice to that of a suspect identified as "Keith unknown" in intercepted telephone calls - On February 3, 2003, Manuel was given access to Meyers and questioned him for that purpose - Manuel formed the opinion that Keith unknown was Meyers - On February 11, 2003, Meyers was arrested respecting the trafficking, cautioned and given his s. 10(b) Charter rights by the arresting officers - After consulting counsel, Meyers declined to give a statement - He was taken to RCMP headquarters for fingerprinting and processing - Manuel, seeking confirmation of the identification, did the processing - The Newfoundland and Labrador Court of Appeal held that there was no basis on which to exclude Manuel's evidence regarding voice identification derived from his processing of Meyers - Presumably, Meyer's counsel had advised him of his right to silence and how to exercise it - Meyers was not being interrogated or manipulated for the purpose of obtaining inculpatory admissions - While obtaining a sample of Meyers' voice involved Meyers' cooperation, the taking of the evidence was non-intrusive in nature, and did not affect his dignity or integrity - The police were not required to advise Meyers that his voice was under scrutiny for purposes of identification - If, on the advice of counsel or of his own volition, Meyers did not wish to have the sound of his voice available to be heard and, therefore, observed by others, he had the choice of, for example, whispering or disguising his voice while providing succinct answers and avoiding engaging in conversation during processing - See paragraphs 47 to 50.

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - Police suspected that Keith Meyers was part of a drug trafficking conspiracy - Manuel, the lead investigating officer, learned that Meyers was in police custody on an unrelated charge - Manuel wanted to compare Meyers' voice to that of a suspect identified as "Keith unknown" in intercepted telephone calls - On February 3, 2003, Manuel was given access to Meyers and questioned him for that purpose - Manuel did not advise Meyers of his right to counsel or that the questioning was in furtherance of an investigation in which he was a suspect - Manuel formed the opinion that Keith unknown was Meyers - On February 11, 2003, Meyers was arrested respecting the trafficking, cautioned and given his s. 10(b) Charter rights by the arresting officers - Meyers challenged the arrest warrant - Meyers asserted that since the trial judge held that the February 3 conversation was inadmissible because of a violation of his s. 10(b) rights, the evidence could not be relied upon to form the reasonable grounds necessary to support the arrest - The s. 10(b) determination was unchallenged - The Newfoundland and Labrador Court of Appeal rejected the assertion - It was open to Manuel to engage Meyers in conversation directed only to the question of identification without advising Meyers that that was his purpose - This was a necessary preliminary step to establishing reasonable grounds on which to detain or arrest Meyers - Section 10(b) was not engaged at the investigatory stage, although Meyers had the common law right to refuse to speak with Manuel - There was no basis on which to conclude that Meyers did not voluntarily engage in conversation with Manuel - The fact that Meyers was detained in the lockup on other charges did not alter these conclusions - See paragraphs 35 to 46.

Civil Rights - Topic 4656

Right to counsel - Entitlement - Criminal cases - [See Civil Rights - Topic 4608 ].

Criminal Law - Topic 53

General principles - Protection against self-incrimination - Right to remain silent - [See Civil Rights - Topic 4608 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused was convicted of conspiracy to traffic and trafficking in marijuana and sentenced to 18 months' imprisonment and three years' probation - The accused appealed the sentence, asserting that it was outside the appropriate range and that the trial judge erred in not imposing a conditional sentence - The Newfoundland and Labrador Court of Appeal dismissed the appeal - At trial, both counsel agreed that 12 to 18 months was an appropriate range - The fact that the sentence was at the high end of the proposed range did not lead to the conclusion that it was outside the acceptable range - The accused provided no authority that the sentence was in substantial and marked departure from sentences imposed for similar offenders committing similar crimes - The trial judge rejected a conditional sentence on the basis that, given the accused's record for drug trafficking, there was a concern that he would re-offend - This was a commercial enterprise in which Meyers was a mainland supplier to other individuals trafficking in the Province - He was not simply a courier, warehouseman or street level dealer - There was no reason to interfere with the decision - See paragraphs 58 to 64.

Criminal Law - Topic 5853

Sentence - Trafficking in hashish or marijuana - [See Criminal Law - Topic 5720.4 ].

Police - Topic 2211

Duties - General duties - Duty to arrested persons - [See third Civil Rights - Topic 3160 ].

Police - Topic 2241

Duties - Duty to inform persons under investigation - General principles - [See third Civil Rights - Topic 3160 and Civil Rights - Topic 4608 ].

Cases Noticed:

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [paras. 10, 80].

R. v. Singh (J.) (2007), 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [paras. 12, 82].

R. v. Liew (K.L.), [1999] 3 S.C.R. 227; 244 N.R. 249; 244 A.R. 1; 209 W.A.C. 1, refd to. [para. 15].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189, refd to. [para. 18].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 21].

R. v. Ross - see R. v. Leclair and Ross.

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 23].

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200, refd to. [para. 23].

R. v. Rodgers (D.) - see R. v. Jackpine (R.).

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168, refd to. [para. 25].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [paras. 29, 84].

R. v. Ng (1996), 38 C.R.R.(2d) 340 (Ont. Gen. Div.), agreed with [para. 30].

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, dist. [para. 37]; refd to. [para. 95].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, dist. [para. 38].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1, refd to. [para. 41].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 59].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 81].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233, refd to. [para. 83].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 84].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 85].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 85].

R. v. Robertson, [1995] O.J. No. 4159 (Gen. Div.), refd to. [para. 85].

R. v. Rodrigues, 2007 NLTD 188, refd to. [para. 87].

R. v. Wong (W.L.) et al. (1997), 35 O.T.C. 321 (Gen. Div.), refd to. [para. 87].

R. v. Evans, [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 88].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 92].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 92].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 92].

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, refd to. [para. 92].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 93].

R. v. Robinson (C.L.) (2000), 133 B.C.A.C. 98; 217 W.A.C. 98; 142 C.C.C.(3d) 521 (C.A.), refd to. [para. 93].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 94].

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, refd to. [para. 95].

R. v. Grant (D.) (2005), 213 O.A.C. 127; 209 C.C.C.(3d) 250 (C.A.), leave to appeal granted (2007), 372 N.R. 398 (S.C.C.), refd to. [para. 95].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161, refd to. [para. 99].

R. v. Dolynchuk (E.N.) (2004), 184 Man.R.(2d) 71; 318 W.A.C. 71; 184 C.C.C.(3d) 214 (C.A.), leave to appeal refused (2005), 345 N.R. 99; 208 Man.R.(2d) 319; 383 W.A.C. 319 (S.C.C.), refd to. [para. 99].

R. v. Shepherd (C.) (2007), 289 Sask.R. 286; 382 W.A.C. 286; 218 C.C.C.(3d) 113 (C.A.), leave to appeal granted [2007] 376 N.R.398 (S.C.C.), agreed with [para. 101].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 107].

R. v. Washington (A.N.) et al. (2007), 248 B.C.A.C. 65; 412 W.A.C. 65; 2007 BCCA 540, refd to. [para. 107].

R. v. Kitaitchik (A.) (2002), 161 O.A.C. 169; 166 C.C.C.(3d) 14 (C.A.), refd to. [para. 108].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 109].

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, refd to. [para. 109].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 113].

R. v. Squires (E.) (2005), 249 Nfld. & P.E.I.R. 14; 743 A.P.R. 14; 199 C.C.C.(3d) 509 (N.L.C.A.), refd to. [para. 114].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 116].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239, refd to. [para. 116].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), paras. 2.13, 2.14 [para. 98].

Counsel:

Toby Bristow, for the appellant;

Michael Madden, for the respondent.

These appeals were heard on November 8, 2007, by Wells, C.J.N.L., Welsh and Mercer, JJ.A., of the Newfoundland and Labrador Court of Appeal. The decision of the Court of Appeal was delivered on February 21, 2008, when the following opinions were filed:

Welsh, J.A. (Wells, C.J.N.L., concurring) - see paragraphs 1 to 66;

Mercer, J.A., dissenting - see paragraphs 67 to 117.