R. v. Moran, (1987) 21 O.A.C. 257 (CA)

• Judge: Martin, Lacourcière and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 27, 1987
• Jurisdiction: Ontario
• Citations: (1987), 21 O.A.C. 257 (CA);1987 CanLII 124 (NS CA);1987 CanLII 124 (ON CA);36 CCC (3d) 225;[1987] CarswellOnt 1116;[1987] OJ No 794 (QL);21 OAC 257;2 WCB (2d) 347

R. v. Moran (1987), 21 O.A.C. 257 (CA)

MLB headnote and full text

Her Majesty the Queen (respondent) v. Donald Philip John Moran (appellant)

Indexed As: R. v. Moran

Ontario Court of Appeal

Martin, Lacourcière and Blair, JJ.A.

August 27, 1987.

Summary:

The accused was charged with the indictable offence of first degree murder, contrary to s. 218(1) of the Criminal Code. The trial judge directed the jury that there was no evidence of a planned murder and that the trial would proceed as a trial of a charge of second degree murder. The jury convicted the accused of second degree murder. The accused was sentenced to the mandatory life imprisonment. The trial judge made no order increasing the ineligibility for parole beyond the minimum 10 year period. The accused appealed against conviction. The Crown appealed against sentence and sought an increase in the number of years that the accused must serve before being eligible for parole.

The Ontario Court of Appeal dismissed the accused's appeal from conviction. The Court of Appeal also dismissed the Crown's sentence appeal.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The Ontario Court of Appeal stated that a search that is unlawful from the beginning cannot be converted into a reasonable search because it is carried out in an inoffensive manner - See paragraph 32.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The Ontario Court of Appeal held that "on the judge's finding of fact that the justice of the peace did not make a judicial determination that there were reasonable grounds to believe that an offence had been committed and that evidence of the offence would be found at the premises to be searched, the search warrant was fundamentally invalid and the search conducted pursuant to the warrant was an unreasonable search under s. 8 of the Charter" - See paragraph 32.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Prior to the expiry of a search warrant, police officers concealed themselves in a shed on the accused's property and surreptitiously observed the accused there - The Ontario Court of Appeal affirmed that the accused had a reasonable expectation of privacy in the shed and the officers' observation of the accused constituted an unreasonable search under s. 8 of the Charter - See paragraph 49.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes - The Ontario Court of Appeal stated that the application or threat of application of physical restraint is unnecessary to constitute detention within s. 10 of the Charter - Compliance with a demand or direction of a police officer by a person who reasonably believes that he has no choice to do otherwise constitutes a detention - Acquiescence in a "demand" or "direction" is essential to constitute "psychological" detention - See paragraphs 74 to 75.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes - The Ontario Court of Appeal referred to seven factors in determining whether a person who subsequently is accused of a crime was detained at the time of questioning by police - See paragraph 82.

Civil Rights - Topic 3604

Detention - What constitutes - Police advised a deceased's secret lover that they wished to question him in their investigation of her death - The lover chose to come to the police station rather than have police visit him - The police thanked him for coming, asked him to account for his time and if he would take a polygraph test - Four days later the police called the accused to the station - They asked him pressing, repeated but not accusatory questions respecting his whereabouts on the date of death - Police evidence was that the lover was not a suspect on either date - The Ontario Court of Appeal affirmed that the lover was not detained at either time within s. 10 of the Charter - See paragraphs 83 to 88.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Ontario Court of Appeal affirmed that evidence seized under an invalid search warrant was admissible, where its admission could not bring the administration of justice into disrepute - The court noted the seriousness of the violation of s. 8 of the Charter, but also noted that the police acted bona fide - See paragraphs 32 to 33.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Prior to the expiry of a search warrant, police officers concealed themselves in a shed on the accused's property and surreptitiously observed the accused there - The police honestly believed their actions did not constitute a trespass contrary to s. 2 of the Trespass to Property Act - The Ontario Court of Appeal affirmed that despite the seriousness of the offence under investigation (murder) and the violation of s. 8 of the Charter, admission of the evidence obtained would not affect the fairness of the trial and would not bring the administration of justice into disrepute - See paragraphs 51 to 56.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Bring the administration of justice into disrepute - [see first Civil Rights - Topic 8368 above].

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Bring the administration of justice into disrepute - [see second Civil Rights - Topic 8368 above].

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Bring the administration of justice into disrepute - The Ontario Court of Appeal stated that good faith was a relevant factor in determining whether the admission of evidence obtained in a manner that contravened s. 8 of the Charter would bring the administration of justice into disrepute - The court further stated that good faith was not confined to objectively reasonable good faith - See paragraph 53.

Criminal Law - Topic 5355

Evidence - Witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The Ontario Court of Appeal stated that an assurance by a person in authority, sincerely made, that a statement made by an accused will be treated as confidential does not render involuntary a subsequent statement made by the accused if the promise of confidentiality is broken by the person making it - See paragraph 89.

Criminal Law - Topic 5355

Evidence - Witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - An accused gave two separate statements to police - He testified he told police that his first conversation was off-the-record and assumed what he said in both interviews was confidential - Police denied this - No evidence that the police lied to him by promising confidentiality to obtain an incriminating statement - The Ontario Court of Appeal affirmed that the statements were voluntary and that the issue was not affected by the judge's failure to make findings of credibility respecting the accused's allegations of confidentiality - Even if the statements were inadmissible, their admission here was not a miscarriage of justice - See paragraphs 89 to 97.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - 47 year old male accused convicted of the second degree murder (stabbing) of his secret female lover of approximately 14 years - Crime of "blind passion, committed in a frenzy" - Prior convictions for dangerous driving and impaired driving - Sentenced to mandatory life imprisonment - The Ontario Court of Appeal affirmed the minimum period of 10 years before eligibility for parole - See paragraphs 109 to 111.

Evidence - Topic 5608

Witnesses - Competency and compellability - Compellability - Judges and justices of the peace - The Ontario Court of Appeal stated that it is clear that judges are not compellable to testify as to their mental processes or how they reached a conclusion in a case before them - See paragraph 35 - This rule is not confined to judges of superior courts - The court discussed, without deciding, whether a justice of the peace was compellable to give evidence as to his mental processes or his reasons for granting a search warrant - See paragraphs 36 to 41.

Police - Topic 3101

Powers - Investigation - General - The Ontario Court of Appeal referred to the powers of police to question persons in their investigation of a crime - See paragraph 81.

Torts - Topic 3002

Trespass to land - What constitutes - Prior to the expiry of a search warrant, police officers concealed themselves in a shed on the accused's property and surreptitiously observed the accused there - The Ontario Court of Appeal affirmed that the right or privilege to be on the accused's premises terminated on the expiry of the warrant and that they became trespassers at common law by remaining on the accused's land after the search was completed - No request to leave was necessary at common law - See paragraph 47.

Cases Noticed:

R. v. Stevens (1983), 58 N.S.R.(2d) 413; 123 A.P.R. 413; 7 C.C.C.(3d) 260 (N.S.S.C.A.D.), refd to. [para. 32].

R. v. Harris and Lighthouse Video Centres Ltd. (1987), 20 O.A.C. 26, appld. [para. 32].

R. v. Therens, [1985] 1 S.C.R. 613; 40 Sask.R. 122; 59 N.R. 122; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 18 C.C.C.(3d) 481, refd to. [para. 32].

R. v. Collins (1987), 74 N.R. 276; 56 C.R.(3d) 193 (S.C.C.), refd to. [para. 32].

R. v. Dean (1942), 77 C.C.C. 13 (Ont. C.A.), refd to. [para. 34].

R. v. O'Keefe (1893), 14 N.S. W. R. 345 (S.C.N.S.W.), refd to. [para. 34].

Hennessy v. The Broken Hill Proprietary Company Ltd. (1926), 38 C.L.R. 342 (H.C. Aust.), refd to. [para. 35].

Zanatta v. McCleary, [1976] 1 N.S.W.L.R. 230 (N.S.W.C.A.), refd to. [para. 35].

U.S. v. Cross (1983), 708 F. 2d 631, refd to. [para. 35].

Clendenning and Board of Police Commissioners For City of Belleville, Re (1976), 33 C.C.C.(2d) 236 (Ont. H.C.), refd to. [para. 35].

Barnes v. State (1975), 520 S.W. 2d 401, consd. [para. 37].

Harkey v. State (1941), 150 S.W. 2d 808, consd. [para. 37].

Page v. State (1975), 222 S.E. 2d 661, consd. [para. 38].

Reed v. State (1931), 39 S.W. 2d 749, refd to. [para. 40].

Gallimore v. State (1938), 116 S.W. 2d 1001, refd to. [para. 40].

R. v. Wong et al. (1987), 19 O.A.C. 265; 56 C.R.(3d) 352 (C.A.), refd to. [para. 48].

R. v. Asencios (1987), 6 Q.A.C. 127; 56 C.R.(3d) 344 (C.A.), refd to. [para. 48].

Lorenzana v. The Superior Court of Los Angeles County (1973), 511 P. 2d 33, refd to. [para. 50].

R. v. Ibrahim, [1914] A.C. 599, refd to. [para. 70].

R. v. Bazinet (1986), 14 O.A.C. 15; 25 C.C.C.(3d) 273, consd. [para. 75].

R. v. Smith (1986), 38 Man.R.(2d) 184; 25 C.C.C.(3d) 361 (C.A.), consd. [para. 77].

R. v. Soares (1987), 19 O.A.C. 97, refd to. [para. 80].

R. v. Esposito (1986), 12 O.A.C. 350; 24 C.C.C.(3d) 88 (C.A.), refd to. [para. 81].

R. v. Stewart (1980), 21 A.R. 300; 54 C.C.C.(2d) 93 (C.A.), refd to. [para. 89].

R. v. Frank, [1970] 2 C.C.C. 102 (B.C.C.A.), refd to. [para. 89].

R. v. Brudick (1975), 27 C.C.C.(2d) 497 (Ont. C.A.), refd to. [para. 102].

R. v. Cole (1980), 53 C.C.C.(2d) 269 (Ont. C.A.), refd to. [para. 102].

R. v. McNamara et al. (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 102].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 443(1)(b) [para. 29]; sect. 613(1)(b)(iii) [para. 101]; sect. 670 [para. 109].

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [paras. 46, 48, 53, 55-56]; sect. 10 [paras. 71-72, 83, 85, 88]; sect. 24(2) [paras. 32, 46].

Trespass to Property Act, R.S.O. 1980, c. 511, sect. 2 [paras. 51, 54].

Authors and Works Noticed:

Fleming on Torts (6th Ed.), p. 41 [para. 47].

LaFave and Israel, Criminal Procedure (1984), vol. 1, pp. 170-171 [para 49].

Counsel:

Clayton C. Ruby, for the accused, appellant and respondent on Crown's appeal against sentence;

Ms. Michael A. MacDonald, for the Crown, respondent and appellant on Crown's appeal against sentence.

This appeal was heard before Martin, Lacourcière and Blair, JJ.A., of the Ontario Court of Appeal on March 12 and 13, 1987. The decision of the Court of Appeal was delivered by Martin, J.A., and released on August 27, 1987.