R. v. Newman (R.G.), (2011) 330 Nfld. & P.E.I.R. 1 (NLTD(G))

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: June 23, 2011
• Jurisdiction: Newfoundland and Labrador
• Citations: (2011), 330 Nfld. & P.E.I.R. 1 (NLTD(G))

R. v. Newman (R.G.) (2011), 330 Nfld. & P.E.I.R. 1 (NLTD(G));

    1026 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2012] Nfld. & P.E.I.R. TBEd. NO.038

Her Majesty The Queen (applicant/respondent) v. Raymond Gerald Newman (respondent/applicant)

(201001G5822; 2011 NLTD(G) 92)

Indexed As: R. v. Newman (R.G.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Adams, J.

June 23, 2011.

Summary:

The accused's estranged wife was murdered. When the police advised the accused of her death, the officer did not say she was murdered, as he was instructed to do. The accused agreed to go to the police station for questioning. While sitting in the police vehicle, the accused was asked his whereabouts that day. Upon entering the police station interview room, the accused was told that his wife had been murdered. He was questioned for 21 minutes without first being advised of his Charter rights. The officers then left the room and returned to advise the accused of his Charter rights. The accused talked with a lawyer, then questioning continued. The accused was released without being charged. Two and one-half years later, the accused was charged with second degree murder. At issue was whether the accused's statement was made freely and voluntarily and whether his rights under ss. 7 (right to silence), 9 (arbitrary detention) and 10(b) (right to counsel) of the Charter were violated.

The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the accused's statement was not made freely and voluntarily and was excluded from evidence on that basis. Although it was unnecessary to decide the Charter issues, the court opined that the accused was arbitrarily detained (s. 9), and his right to silence (s. 7), right to counsel (s. 10(b)), and his right to be informed of the reasons for his detention (s. 10(a) were violated.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was advised by police that his estranged wife was dead - When they asked him to accompany them to the police station for questioning, he was not told that they were investigating a murder or that he was a person of interest - He was not permitted to drive there in his own car - The accused was questioned in the police vehicle as to his whereabouts that day - Only when placed in the interview room was the accused told that his wife had been murdered - The police then questioned him for 21 minutes, obtaining incriminating statements - They then left the room and returned to advise him of his Charter rights - He was told that advising him of his Charter rights was just a formality - The accused was told that he was not under arrest, but was not told that he was free to leave - The accused spoke with a lawyer, who advised him to remain silent and ask to leave - The accused's repeated requests to end the interview and to leave were ignored - Questioning continued for several hours - Even when the police eventually admitted that the accused was free to leave, he was not permitted to do so until he allowed them to photograph his hands and arms - The accused was eventually released without charge (charged with murder 2.5 years later) - The Newfoundland and Labrador Supreme Court, Trial Division (General), opined that the accused had been arbitrarily detained from the time that he was asked to accompany the police to the police station until he was returned home four hours later - Although police had authority to detain for investigative purposes, that required "reasonable grounds to suspect" that the accused was involved in the murder - The police conceded that they had no grounds to detain the accused and were seeking incriminating evidence on the basis of a "hunch" that the accused was involved - The court also opined that the accused's right to counsel (s. 10(b)), his right to be informed of the reasons for his arrest or detention (s. 10(b)), and his right to remain silent (s. 7) were infringed - See paragraphs 70 to 126.

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 5335

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

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was advised by police that his estranged wife was dead - When they asked him to accompany them to the police station for questioning, he was not told that they were investigating a murder or that he was a person of interest - The accused was questioned in the police vehicle as to his whereabouts that day - Only when placed in the interview room was the accused told that his wife had been murdered - The police then questioned him for 21 minutes, obtaining incriminating statements - They then left the room and returned to advise him of his Charter rights - He was told that advising him of his Charter rights was just a formality - The accused was told that he was not under arrest, but was not told that he was free to leave - The accused spoke with a lawyer, who advised the accused to remain silent and ask to leave - The accused's repeated requests to end the interview and to leave were ignored - Questioning continued for several hours - Even when the police eventually admitted that the accused was free to leave, he was not permitted to do so until he allowed them to photograph his hands and arms - The accused was eventually released without charge (charged with murder 2.5 years later) - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that appealing to the accused's conscience to tell what he knew, "while approaching impropriety", did not constitute a threat or promise and there was no police trickery that would shock society's conscience - However, the court was not satisfied beyond a reasonable doubt that the accused's statement was voluntary - The police never told him that he was free to leave and it was no answer for the police to say that if the accused walked out they would not have stopped him - This was the accused's first involvement with police and he was held in a secure area of the police station - In response to one request to leave, the accused was told that he could not - The accused "quite reasonably felt oppressed and to have been deprived of his free will to simply get up and leave the police building without the permission of the police" - The statement was excluded from evidence as involuntary - See paragraphs 27 to 69.

Police - Topic 3086

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

Cases Noticed:

R. v. Caputo (E.) (1997), 98 O.A.C. 30; 1997 CarswellOnt 687 (C.A.), refd to. [para. 25].

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. 27].

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. 28].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 49].

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. 50].

R. v. N.R. (2000), 198 Sask.R. 121; 2000 SKQB 492, refd to. [para. 56].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 58].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 61].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 75].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, refd to. [para. 76].

R. v. Azzam (D.) (2008), 237 O.A.C. 338; 2008 ONCA 467, dist. [para. 100].

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, refd to. [para. 105].

R. v. Adams (P.) (2011), 303 Nfld. & P.E.I.R. 247; 941 A.P.R. 247; 2011 NLCA 3, refd to. [para. 107].

R. v. Simpson (R.) (1993), 60 O.A.C. 327 (C.A.), refd to. [para. 107].

R. v. Dedman (1985), 60 N.R. 34; 11 O.A.C. 241; 59 C.C.C.(2d) 97 (S.C.C.), refd to. [para. 107].

R. v. McCrimmon (D.R.) (2010), 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, dist. [para. 116].

R. v. Sunshine (D.C.), [2010] B.C.T.C. Uned. 44; 2010 BCSC 44, refd to. [para. 118].

Counsel:

Elaine Reid and Philip LeFeuvre, for the applicant;

Michael King, for the respondent.

This matter was heard on March 29-31 and April 1 and 13, 2011, at St. John's, N.L., before Adams, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on June 23, 2011.