R. v. Mildenberger (J.), 2015 SKQB 27

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 29, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 27;(2015), 466 Sask.R. 54 (QB)

R. v. Mildenberger (J.) (2015), 466 Sask.R. 54 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. OC.017

Her Majesty the Queen v. Jaycee Mildenberger

(Docket: CRIM 2140; 2015 SKQB 27)

Indexed As: R. v. Mildenberger (J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Dawson, J.

January 29, 2015.

Summary:

The accused was charged with first degree murder. The Crown asserted that the accused made two statements to police admitting that he had killed the victim. The first statement was made in the context of a Mr. Big operation. The second statement was a warned statement made to police officers at the police station after the accused's arrest. The accused asserted that neither statement should be admitted into evidence. He also applied for exclusion of the warned statement under s. 24(2) of the Charter on the basis that his s. 10(b) Charter rights were violated.

The Saskatchewan Court of Queen's Bench held that both statements were admissible.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Mildenberger was arrested for murder and immediately advised of his right to counsel - He contacted a lawyer named Kreklewich - After speaking with Kreklewich twice, Mildenberger was advised by the police that his wife had contacted a lawyer named Pfefferle - The police gave Mildenberger an opportunity to speak with Pfefferle - Mildenberger indicated that he was satisfied with the legal advice he had received from Kreklewich - He proceeded to provide a warned statement to the police - Mildenberger applied for exclusion of the statement, asserting a violation of his s. 10(b) Charter rights - The Saskatchewan Court of Queen's Bench dismissed the application - In advising Mildenberger that his wife had retained or attempted to retain Pfefferle for him, the police were complying with Mildenberger's s. 10(b) rights - Mildenberger chose not to exercise his right to speak with Pfefferle - His s. 10(b) rights were not denied - See paragraphs 162 to 180.

Criminal Law - Topic 5335

Evidence and witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - [See Criminal Law - Topic 5337.1 and Criminal Law - Topic 5355 ].

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - Police suspected that Mildenberger had murdered his neighbour (Gregory) - They began an undercover operation - One officer ("Jason") hired Mildenberger, a trucker, to transport merchandise between cities on a part-time basis - Jason said that his business was not illegal but that he evaded taxes - Mildenberger was introduced to other members of the organization, including someone who allegedly had connections within the justice system and could "fix" problems ("Steph") - While Mildenberger and Jason were at a restaurant one evening, an officer who Mildenberger knew was investigating Gregory's death approached their table and stated that he knew Mildenberger was responsible for the death and that the police were close to catching him - Jason arranged a meeting between Mildenberger and Steph - Steph told Mildenberger that he had obtained information about the case and that Mildenberger would definitely go to jail unless Steph helped him - Steph said that Mildenberger would have to tell him the truth about the murder in order for his plan to work - Mildenberger proceeded to do so and was charged with first degree murder - The Saskatchewan Court of Queen's Bench held that the statements Mildenberger made to the undercover officers were admissible - Mildenberger maintained his previous lifestyle during the operation, including his full-time employment - He was not offered any financial inducement to give the confession - Steph's statement that Mildenberger would go to jail unless Steph helped him was not a "threat" - The relationship between Mildenberger and the operatives was one of easy-going friendship - There were several markers of reliability within the confession and some confirmatory evidence - The risk of moral and reasoning prejudice was not great and was outweighed by the probative value of the evidence - See paragraphs 59 to 87.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - Mildenberger's neighbour was murdered - Mildenberger confessed to the murder in the context of a "Mr. Big" undercover operation - Police did not immediately reveal the undercover operation to Mildenberger following his arrest - Mildenberger proceeded to provide a warned statement to the police - He objected to the admissibility of the warned statement, arguing that the failure to advise him of the true identity of the undercover officers did not permit him to use an operating mind when he gave the warned statement - He further argued that he was worried for the safety of his family during the warned statement, and that the failure to advise him that the undercover officers were not criminals constituted a threat, thus making his warned statement involuntary - The Saskatchewan Court of Queen's Bench held that the warned statement was admissible - Although the police were persistent in the course of obtaining the statement, they were polite, respectful and attended to Mildenberger's needs - The undercover operatives were referred to only three times during the interview, and nothing in those references could reasonably be interpreted as an implied threat - The police made moral inducements suggesting to Mildenberger that he would feel better if he confessed - There was never any suggestion of a quid pro quo - Mildenberger had the requisite cognitive ability - He was clearly aware of the consequences of what was at stake in making a statement - The failure to disclose the true nature of the Mr. Big operation did not result in an atmosphere of oppression, and was not a use of police trickery that would shock the community - Nor did the officers' references to fabricated evidence, including DNA and fingerprints, create oppression - Mildenberger was not taken in by those suggestions - See paragraphs 117 to 161.

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - [See Criminal Law - Topic 5355 ].

Cases Noticed:

R. v. Hart (N.L.) (2014), 461 N.R. 1; 353 Nfld. & P.E.I.R. 222; 1099 A.P.R. 222; 312 C.C.C.(3d) 250; 2014 SCC 52, appld. [para. 5].

R. v. Mack (D.R.) (2014), 462 N.R. 380; 580 A.R. 41; 620 W.A.C. 41; 377 D.L.R.(4th) 412; 2014 SCC 58, refd to. [para. 26].

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; 2000 SCC 38, refd to. [para. 92].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 96].

R. v. Roy (F.C.), [2002] O.J. No. 5541 (Sup. Ct.), affd. [2003] O.A.C. Uned. 457; 180 C.C.C.(3d) 298 (C.A.), refd to. [para. 117].

R. v. Spencer (B.S.), [2007] 1 S.C.R. 500; 358 N.R. 278; 237 B.C.A.C. 1; 392 W.A.C. 1; 2007 SCC 11, refd to. [para. 120].

R. v. Horvath, [1979] 2 S.C.R. 376; 25 N.R. 537, refd to. [para. 136].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 157].

R. v. Brouillette (E.) (2007), 297 Sask.R. 113; 2007 SKPC 67, affd. (2009), 351 Sask.R. 295; 2009 SKQB 422, refd to. [para. 167].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 167].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 167].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 167].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 167].

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. 170].

R. v. Johnston (L.L.) (2004), 196 B.C.A.C. 19; 322 W.A.C. 19; 183 C.C.C.(3d) 157; 2004 BCCA 148, refd to. [para. 172].

R. v. Crossman, [1991] B.C.J. No. 729 (C.A.), refd to. [para. 172].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 173].

R. v. Edmonton (J.S.) (2014), 575 A.R. 213; 612 W.A.C. 213; 2014 ABCA 186, refd to. [para. 179].

Counsel:

Andrew J. Wyatt, for the Crown;

Scott Hopley and Brian Pfefferle, for the accused.

This application was heard before Dawson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following judgment on January 29, 2015.