R. v. Nelson (D.A.),

• Judge: Bielby,Read,Ritter
• Neutral Citation: 2010 ABCA 349
• Date: 19 November 2010
• Subject Matter: POLICE,CIVIL RIGHTS
• Court: Court of Appeal (Alberta)

R. v. Nelson (D.A.) (2010), 490 A.R. 271 (CA);

      497 W.A.C. 271

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. NO.092

Her Majesty The Queen (respondent) v. Dwayne Anthony Nelson (appellant)

(0903-0041-A; 2010 ABCA 349)

Indexed As: R. v. Nelson (D.A.)

Alberta Court of Appeal

Ritter and Bielby, JJ.A., and Read, J.(ad hoc)

November 19, 2010.

Summary:

The 22 year old accused was involved in a bar fight. Six persons were later shot. Three died. Two days later, at 8:00 a.m., the accused, who was under surveillance, was at the airport awaiting a flight. Police arrested him for assault, as they had insufficient information then to arrest him for murder. At the police station, the accused was advised of his Charter rights and told, 1.5 hours after his initial arrest, that he was now being detained for murder. The accused called a lawyer, who arrived an hour later and spoke with the accused for 25 minutes. The lawyer advised the police that the accused wished to remain silent. Several hours later, the officer and accused had lunch together. The officer engaged him in conversation to build a rapport. The accused was returned to his cell. Questioning began at 5:00 p.m. and continued to about midnight, when the accused told the officer where he disposed of the gun. The accused was taken to the alleged disposal site, but a gun could not be found. The accused met with his mother at 1:30 a.m., photographs were taken at 2:00 a.m., and the paperwork for transfer to the Arrest Processing Unit was completed at 3:00 a.m. The accused was taken before a Justice of the Peace at 9:20 a.m. and was remanded into custody. At issue on this voir dire was the admissibility of the videotaped statement made by the accused. The accused submitted that his statement was not freely and voluntarily made and that his rights under ss. 7, 9 and 10 of the Charter were violated. The accused sought exclusion of the statement under s. 24(2) of the Charter.

The Alberta Court of Queen's Bench, in a judgment reported (2010), 489 A.R. 177, held that the accused's statement was voluntary. There were no threats, promises or oppression undermining the voluntariness of the statement. The statement was the product of an operating mind. The accused's Charter rights were violated by the delay in affording him an opportunity to contact counsel, by arresting him for murder without reasonable and probable grounds, and by unexplainedly waiting two hours to commence questioning him. However, even if the statement was obtained in a manner that violated the accused's Charter rights, it would not be excluded under s. 24(2) despite its conscriptive nature. The accused was subsequently convicted of three counts of second degree murder, two counts of aggravated assault and one count of assault causing bodily harm. The accused appealed, submitting that the trial judge erred in finding no connection between the s. 10(b) Charter breach and the statement obtained, erred in finding that he was not arbitrarily detained when arrested for murder without reasonable and probable grounds, and that the statement should have been excluded under s. 24(2).

The Alberta Court of Appeal dismissed the appeal. First, the court doubted whether the failure to investigate whether the accused could consult with counsel at the airport violated his s. 10(b) Charter right to counsel. In any event, any denial of the accused's right to counsel had no connection with the statement he subsequently provided after consulting with counsel. The accused, lawfully detained on assault charges, was not arbitrarily detained when he was re-arrested for murder without reasonable and probable grounds. Finally, the trial judge did not err in finding that the statement should not be excluded under s. 24(2) even if the accused's Charter rights were denied.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was under surveillance for his suspected involvement in a triple homicide - Two days after the murders, the accused was in line at the airport, awaiting a flight to leave the jurisdiction - He was arrested for assault - After being transported to the police station, the investigating officer decided that the accused should be re-advised of his Charter rights and told that he might be charged with murder - The trial judge held that the police had reasonable and probable grounds to arrest the accused for assault, but insufficient grounds to charge him with murder - However, the lack of reasonable and probable grounds to arrest for murder did not render the accused's detention arbitrary - The assault was integrally connected with the murders - Objectively, the police had the right to detain and interrogate the accused respecting the murders - The judge stated that "what is essential is that there be reasonable and probable grounds for arrest at the first instance and that the detainee be advised of his jeopardy and able to retain and instruct counsel in that regard" - The Alberta Court of Appeal held that an accused who was lawfully detained for one offence was not arbitrarily detained when re-arrested for another offence without reasonable and probable grounds - The court stated that "although it would have been preferable that the detective waited to arrest the appellant for murder until after the detective had reasonable and probable grounds, no harm was done" - See paragraphs 24 to 29.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - The accused, suspected of involvement in a triple homicide, was under surveillance - He was arrested and detained at the airport while awaiting a flight - The police had reasonable and probable grounds to arrest the accused for assault - The accused was advised of his right to counsel, but was not given an opportunity to consult with a lawyer until transported back to the police station, which took several hours - Arrangements could have been made with the R.C.M.P. at the airport to take the accused to an available private room to call a lawyer, but the officers did not address their minds to that possibility - The arresting officers were merely instructed to arrest the fleeing accused and return him to the police station - No evidence was elicited from the accused until after he consulted with counsel at the police station - The trial judge held that the accused's s. 10(b) Charter right to counsel was denied by the several hour delay in affording him an opportunity to exercise his right to counsel - However, the judge noted that the subsequent statement to police, obtained only after the accused consulted with counsel, was not "obtained in a manner" that infringed the accused's s. 10(b) rights, so a s. 24(2) analysis respecting exclusion of the statement was not required - The Alberta Court of Appeal doubted that the delay in affording the accused an opportunity to consult with counsel until they arrived at the police station violated the accused's right to counsel - In any event, the court agreed that any denial of the accused's right to counsel had no connection with the statement he subsequently provided after consulting with counsel, making a s. 24(2) exclusion of evidence analysis unnecessary - See paragraphs 15 to 23.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4605 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 13].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 2003 ABCA 121, refd to. [para. 13].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 14].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 14].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 16].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 17].

R. v. Van Wyk (H.W.) (1999), 104 O.T.C. 161; 6 M.V.R.(4th) 248 (Sup. Ct.), refd to. [para. 20].

R. v. Willier (S.J.) (2008), 429 A.R. 135; 421 W.A.C. 135; 2008 ABCA 126, refd to. [para. 20].

R. v. Plaha (B.) (2004), 189 O.A.C. 376; 188 C.C.C.(3d) 289; 24 C.R.(6th) 360 (C.A.), refd to. [para. 21].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 21].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 24].

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. 26].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 26].

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. 26].

R. v. Sinclair (T.T.) (2010), 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 27].

Counsel:

D.C. Marriott, Q.C., for the respondent;

M.T. Duckett, Q.C., for the appellant.

This appeal was heard on November 4, 2010, before Ritter and Bielby, JJ.A., and Read, J.(ad hoc), of the Alberta Court of Appeal.

On November 19, 2010, the following memorandum of judgment was filed by the Court.