R. v. Nelson (D.A.), 2008 ABQB 640

• Judge: Hillier, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 15, 2008
• Citations: 2008 ABQB 640;(2008), 489 A.R. 177 (QB)

R. v. Nelson (D.A.) (2008), 489 A.R. 177 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AP.113

Her Majesty The Queen (respondent/Crown) v. Dwayne Anthony Nelson (applicant/defendant)

(061344727Q1; 2008 ABQB 640)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Hillier, J.

October 15, 2008.

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 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.

Editor's Note: This case is being reported at this time because it was subject to a publication ban that has since expired.

Civil Rights - Topic 3141

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest - Right to be taken before a court within reasonable time - Section 503(1) of the Criminal Code required that an accused be taken before a Justice of the Peace as soon as possible, and no more than 24 hours after his arrest - The accused was initially arrested at 8:00 a.m. at the airport for assault, but later re-arrested for murder, although the police lacked reasonable and probable grounds to do so at that time - Delays in interrogating the accused resulted in more than 24 hours passing before he was taken before a Justice of the Peace - The Alberta Court of Queen's Bench held that the accused had not been arbitrarily detained, as the assault was integral to the murder investigation - There was no evidence that the fact that the police lacked grounds to arrest the accused for murder affected the accused's giving of a statement - The Crown was not acting capriciously, in bad faith or for an improper purpose - The court held that even if the delay in taking the accused before a Justice of the Peace violated the accused's rights, the violation had no practical effect, as a Justice of the Peace had no jurisdiction under s. 503(1) to release an accused charged with murder - The accused would have been detained in any event - See paragraphs 79 to 83.

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 Alberta Court of Queen's Bench 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 court 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" - See paragraphs 53 to 58.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 3141 ].

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 Alberta Court of Queen's Bench 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 court 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 no required - See paragraphs 46 to 52.

Civil Rights - Topic 8368

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - 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 lacked grounds at that time to arrest him for murder - At the police station, the accused was advised of his Charter rights and told 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 - The accused submitted that his statement was not voluntary and that his rights under ss. 7, 9 and 10 of the Charter were violated - He sought exclusion of the statement under s. 24(2) - The Alberta Court of Queen's Bench held that the accused's statement was voluntary - The accused's Charter rights were potentially 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 court stated that, inter alia, "while all of the complaints relate to timing or mis-timing in terms of [the accused's] rights, the overall effect of the delays was minimal, and the premature arrest for murder was probably more a result of the concern that [the accused] understand his jeopardy" - See paragraphs 84 to 91.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - An accused challenged the voluntariness of his statement to police based on oppressive investigatory tactics - The Alberta Court of Queen's Bench held that the statement was freely and voluntarily given - There was no inducement or promise - It was not established that the officer intimated that a confession would result in a lighter sentence for murder or that the officer had some influence on the severity of the sentence - No quid pro quo was offered - Although the officer cited evidence (accused seen on outside video surveillance) that did not exist, such trickery did not shock the conscience of the community - There was no intimidation by telling the accused that there was a possibility of gang retribution - The accused already knew that - There was no offer of police protection in exchange for a confession - The officer merely stated the obvious - The court also rejected submissions that the length of the interview, the delay in starting it, the temperature in the cell, etc., resulted in conditions which overbore the accused's will and rendered his statement involuntary - See paragraphs 62 to 78.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See first Civil Rights - Topic 3603 ].

Police - Topic 3086

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

Cases Noticed:

R. v. Alexis (N.T.) et al. (2002), 164 B.C.A.C. 185; 268 W.A.C. 185; 163 C.C.C.(3d) 387; 2002 CarswellBC 222; 2002 BCCA 103, refd to. [para. 31]; dist. [para. 65].

R. v. Lazure (1959), 126 C.C.C. 331 (Ont. C.A.), refd to. [para. 31].

R. v. Minde (M.B.) (2003), 343 A.R. 371; 2003 ABQB 797, refd to. [para. 31].

R. v. Brown (1931), 55 C.C.C. 258 (Ont. C.A.), refd to. [para. 31].

R. v. Downey (E.C.) et al. (1997), 164 N.S.R.(2d) 1; 491 A.P.R. 1 (S.C.), refd to. [para. 31].

R. v. Dobni, 1999 CarswellBC 3066 (S.C.), refd to. [para. 31].

R. v. McLeod, [1968] O.J. No. 700 (C.A.), refd to. [para. 31].

R. v. Daunt (G.K.), [2005] Yukon Cases (SC) 34; 132 C.R.R.(2d) 62 (S.C.), refd to. [para. 31].

R. v. Hanuse (S.D.) (1996), 185 A.R. 384 (Q.B.), refd to. [para. 32].

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. 33].

R. v. McCorkell (1962), 27 C.R.N.S. 155 (Ont. S.C.), refd to. [para. 34].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 35].

R. v. Koszulap (1974), 20 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 36].

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. 37].

R. v. Spencer (B.S.), [2007] 1 S.C.R. 55; 358 N.R. 278; 237 B.C.A.C. 1; 392 W.A.C. 1; 2007 SCC 11, refd to. [para. 37].

R. v. Carpenter (J.D.) (2001), 147 B.C.A.C. 135; 241 W.A.C. 135; 2001 BCCA 31, refd to. [para. 38].

R. v. Briscoe (M.E.) et al. (2007), 413 A.R. 29; 2007 ABQB 48, refd to. [para. 38].

R. v. Grouse (D.D.) (2003), 215 N.S.R.(2d) 158; 675 A.P.R. 158; 2003 NSSC 100, refd to. [para. 39].

R. v. Figueroa (N.) et al., [2002] O.T.C. 554 (Sup. Ct.), refd to. [para. 40].

R. v. Douglas (R.D.) (2005), 387 A.R. 1; 2005 ABQB 252, refd to. [para. 40].

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. 40].

R. v. Dickens (J.C.) (1999), 242 A.R. 148 (Q.B.), refd to. [para. 40].

R. v. Bishop (M.F.) (2000), 267 A.R. 379 (Q.B.), refd to. [para. 40].

R. v. Purdon (1989), 100 A.R. 313 (C.A.), refd to. [para. 40].

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, refd to. [para. 41].

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. 42].

R. v. Sieben (1989), 99 A.R. 379 (C.A.), refd to. [para. 42].

R. v. McLeod (G.A.) et al. (2005), 393 A.R. 1; 2005 ABQB 846, refd to. [para. 43].

R. v. Tam (R.K.N.) et al. (1995), 61 B.C.A.C. 40; 100 W.A.C. 40; 100 C.C.C.(3d) 196 (C.A.), refd to. [para. 43].

R. v. E.W. (2002), 216 Nfld. & P.E.I.R. 89; 647 A.P.R. 89; 2002 NFCA 49, refd to. [para. 43].

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. 47].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 47].

R. v. Bartle (K.) (1994), 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 50].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 57; 2000 ABCA 301, refd to. [para. 50].

R. v. Van Wyk (H.W.) (1999), 104 O.T.C. 161 (Sup. Ct.), refd to. [para. 51].

R. v. Proulx (A.M.), [2005] B.C.T.C. 184 (S.C.), refd to. [para. 51].

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. 55].

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. 56].

R. v. Wood (D.A.) (No. 1) (1994), 135 N.S.R.(2d) 334; 386 A.P.R. 334 (C.A.), refd to. [para. 61].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 73].

R. v. Grant (D.) (2006), 213 O.A.C. 127; 81 O.R.(3d) 1; 209 C.C.C.(3d) 250 (C.A.), leave to appeal granted (2007), 372 N.R. 398; 239 O.A.C. 197 (S.C.C.), refd to. [para. 84].

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; 2005 SCC 37, refd to. [para. 84].

R. v. Willier (S.J.) (2008), 429 A.R. 135; 421 W.A.C. 135; 2008 ABCA 126, refd to. [para. 84].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 85].

R. v. E.W. (2002), 216 Nfld. & P.E.I.R. 89; 647 A.P.R. 89; 168 C.C.C.(3d) 38 (Nfld. C.A.), refd to. [para. 89].

R. v. Tate (M.J.) (2002), 169 B.C.A.C. 175; 276 W.A.C. 175; 2002 BCCA 189, refd to. [para. 89].

Counsel:

Dino Bottos and Anna Konye, for the accused;

John Watson and Robert Sera (Alberta Justice), for the Crown.

This voir dire was held on October 6-10, 2008, before Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on October 15, 2008.