R. v. Morgan (B.), (1997) 61 O.T.C. 161 (GD)

• Judge: McKinnon, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: April 22, 1997
• Jurisdiction: Ontario
• Citations: (1997), 61 O.T.C. 161 (GD)

R. v. Morgan (B.) (1997), 61 O.T.C. 161 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. MY.203

Her Majesty The Queen v. Brett Morgan

(Court File No. 95-17011)

Indexed As: R. v. Morgan (B.)

Ontario Court of Justice

General Division

Ottawa

McKinnon, J.

April 22, 1997.

Summary:

On April 24, 1995, the accused attended a police station to file a missing person's report respecting his common law spouse. He made a statement, indicating that he had previously been convicted for manslaughter and was on parole. He then discussed his complaint with a member of the criminal investigation department. The next morning, he returned to the station to bring photographs. He was interviewed for two hours during which he discussed his previous record. The officers left the room without explanation to check the accused's parole status. A report summarizing the gist of this conversation was created. At the accused's invitation, police attended the accused's house where he willingly provided documents. After consulting a lawyer, the accused filed a written witness statement. The accused also made statements to his parole officer as required by the terms of his parole. On July 6, 1995, the accused was arrested for first-degree murder. At issue in this voir dire was the admissibility of the accused's statements to the police and to his parole supervisors between April 24 and July 6. The accused asserted that he had been detained within the meaning of s. 10 of the Charter and that he had felt compelled to answer questions given his probation conditions.

The Ontario Court (General Division) held that the accused's statements made during the interviews were free and voluntary. The accused had not been detained. There was no breach of his Charter rights. However, the compulsory statements made to the probation officer were inadmissible. To admit these statements would render the trial unfair and constitute a breach of the accused's s. 7 Charter rights.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - See paragraphs 54 to 64.

Criminal Law - Topic 5337

Evidence and witnesses - Confessions and voluntary statements - Admissibility - General - See paragraphs 54 to 111.

Criminal Law - Topic 5352

Evidence and witnesses - Confessions and voluntary statements - Statements to a person in authority - See paragraphs 54 to 111.

Criminal Law - Topic 5353.3

Evidence and witnesses - Confessions and voluntary statements - Statements to probation officer - See paragraphs 97 to 111.

Criminal law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - See paragraphs 54 to 64.

Cases Noticed:

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 56].

R. v. Dedman (1981), 59 C.C.C.(2d) 97 (Ont. C.A.), refd to. [para. 58].

R. v. Esposito (1985), 12 O.A.C. 350; 24 C.C.C.(3d) 88 (C.A.), refd to. [para. 60].

R. v. Bazinet (1986), 14 O.A.C. 15; 23 C.C.C.(3d) 273 (C.A.), refd to. [para. 60].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 60].

R. v. Grafe (1987), 22 O.A.C. 280; 36 C.C.C.(3d) 267 (C.A.), refd to. [para. 60].

R. v. Hicks (1988), 28 O.A.C. 118; 42 C.C.C.(3d) 394 (C.A.), refd to. [para. 60].

R. v. Thompson (1989), 36 O.A.C. 225; 52 C.C.C.(3d) 569 (C.A.), refd to. [para. 60].

R. v. Yorke (1990), 37 O.A.C. 253; 54 C.C.C.(3d) 321 (C.A.), refd to. [para. 60].

R. v. Lawrence (1990), 46 O.A.C. 345; 59 C.C.C.(3d) 55 (C.A.), refd to. [para. 60].

R. v. Sagliocco (1978), 39 C.C.C.(2d) 514 (B.C.C.A.), refd to. [para. 72].

R. v. LaPointe and Sicotte (1983), 1 O.A.C. 1; 9 C.C.C.(3d) 366 (C.A.), refd to. [para. 72].

R. v. Legere (1988), 89 N.B.R.(2d) 361; 226 A.P.R. 361; 43 C.C.C.(3d) 502 (C.A.), refd to. [para. 72].

R. v. Howard and Trudel (1983), 3 C.C.C.(3d) 399 (Ont. C.A.), refd to. [para. 72].

R. v. Smith (1981), 60 C.C.C.(2d) 327 (Que. Sup. Ct.), refd to. [para. 73].

R. v. Kennedy (1981), 10 Man.R.(2d) 104; 63 C.C.C.(2d) 244 (C.A.), refd to. [para. 73].

R. v. Moretto (1984), 30 Man.R.(2d) 181; 14 C.C.C.(3d) 427 (Q.B.), refd to. [para. 73].

R. v. Hobbins, [1982] 1 S.C.R. 553; 41 N.R. 433; 66 C.C.C.(2d) 289, refd to. [para. 87].

R. v. Turnbull (1948), 93 C.C.C. 131 (Ont. H.C.), refd to. [para. 97].

R. v. Pedersen (1956), 114 C.C.C. 366 (Ont. H.C.), refd to. [para. 97].

R. v. Fex (1973), 12 C.C.C.(2d) 239 (Ont. H.C.), affd. (1973), 14 C.C.C.(2d) 188 (Ont. C.A.), refd to. [para. 98].

R. v. Spyker (1990), 29 M.V.R.(2d) 41 (B.C.S.C.), refd to. [para. 101].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 77 C.R.(3d) 145; 57 C.C.C.(3d) 1; [1990] 5 W.W.R. 1; 47 B.C.L.R.(2d) 1, refd to. [para. 104].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417; 76 C.R.(3d) 129; 67 D.L.R.(4th) 161; 29 C.P.R.(3d) 97; 47 C.R.R. 1, refd to. [para. 104].

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; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [para. 104].

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; 113 C.C.C.(3d) 321; 5 C.R.(5th) 1, refd to. [para. 105].

R. v. Fitzpatrick (B.), [1995] 4 S.C.R. 154; 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1; 102 C.C.C.(3d) 144, refd to. [para. 109].

Counsel:

Malcolm F. Lindsay, Q.C., and Louise DuPont, for the Crown;

Patrick F.D. McCann, for the accused.

This voir dire was heard before McKinnon, J., of the Ontario Court (General Division), who released the following judgment on April 22, 1997.