R. v. Pope (S.C.), (2016) 381 Nfld. & P.E.I.R. 207 (NLTD(G))

• Judge: Goulding, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 17, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2016), 381 Nfld. & P.E.I.R. 207 (NLTD(G))

R. v. Pope (S.C.) (2016), 381 Nfld. & P.E.I.R. 207 (NLTD(G));

    1181 A.P.R. 207

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. AP.034

Her Majesty the Queen v. Sam Collin Pope

(201403G0069; 2016 NLTD(G) 38)

Indexed As: R. v. Pope (S.C.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Goulding, J.

March 2, 2016.

Summary:

The accused was charged with break and enter. A voir dire was held to determine the voluntariness of a statement the accused gave to police, and whether the accused's s. 10(b) Charter right to counsel was violated.

The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the statement was made voluntarily, but that the accused's right to counsel was violated. The court excluded the statement under s. 24(2) of the Charter.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - At 12:45 a.m. in the woods, Pope was arrested for a break and enter and given his right to counsel by Constable Bowie - When asked if he wished to speak to a lawyer, Pope responded "nah, maybe later" - Initially, the plan was to release Pope in the morning - However, this plan changed and instead Pope was approached by Constable Nash to provide a statement, which he did at 3:35 p.m. - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Pope's s. 10(b) Charter right to counsel was violated - Nash knew that (a) there was no opportunity for Pope to consult counsel at the scene of his arrest; (b) Pope was indecisive at the scene regarding counsel; and (c) the plan to release Pope in the morning had changed - In addition, Nash questioned Pope about a theft investigation that was totally unrelated to the offence for which Pope was arrested - This resulted in a change in jeopardy - In these circumstances, Nash should have gone one step further and ensured that Pope was indeed waiving his right to counsel - The court excluded the statement from evidence - See paragraphs 25 to 48.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

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 - Pope was charged with break and enter - A voir dire was held to determine the voluntariness of a statement Pope gave to police - Pope submitted that a police officer induced him to make the statement - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the statement was made voluntarily - Pope formed the impression during his custody that he would be released if he gave a statement admitting to his involvement in the break and enter - This perception was not the result of any inducement or promise by the officer, but by Pope's understanding of how the law worked based on his past experience - Pope's free will was not overborne by any conduct on the part of the officer - See paragraphs 4 to 24.

Counsel:

Karen O'Reilly, for Her Majesty the Queen;

Steve Lichti, for Mr. Pope.

This voir dire was heard at Grand Falls-Windsor, N.L., on November 17, 2015, and January 12 and 13, 2016, before Goulding, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on March 2, 2016.