R. v. Smith (G.), (2015) 375 Nfld. & P.E.I.R. 220 (NLTD(G))

• Judge: Handrigan, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: September 10, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 375 Nfld. & P.E.I.R. 220 (NLTD(G))

R. v. Smith (G.) (2015), 375 Nfld. & P.E.I.R. 220 (NLTD(G));

    1167 A.P.R. 220

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.012

Her Majesty the Queen v. Gail Smith

(201406G0061; 2015 NLTD(G) 170)

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

Newfoundland and Labrador Supreme Court

Trial Division (General)

Handrigan, J.

November 26, 2015.

Summary:

Godin, a loss prevention manager for Reitman's Canada Ltd., suspected that the accused was stealing from Reitman's by processing false refunds. She arranged a meeting with the accused and Day, the district sales manager. Just prior to the meeting, Godin gave the local RCMP a "courtesy call" about possible wrongdoing at the store. At the meeting with Godin and Day, the accused gave oral and written statements. She was charged with fraud. Asserting that Godin and Day were "persons in authority" who had detained her and breached her rights under the Charter to counsel and to remain silent, the accused applied to exclude the statements under s. 24(2) of the Charter. Alternatively, the accused asserted that the statements were inadmissible under the confessions rule.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the Charter application and held that the statements were admissible.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - Application - Nongovernmental or private interference - Godin, a loss prevention manager for Reitman's Canada Ltd., suspected that the accused was stealing from Reitman's by processing false refunds - She arranged a meeting with the accused and Day, the district sales manager - Just prior to the meeting, Godin gave the local RCMP a "courtesy call" about possible wrongdoing at the store - At the meeting with Godin and Day, the accused gave oral and written statements - She was charged with fraud - Asserting that Godin and Day were "persons in authority" who had detained her and breached her rights under the Charter to counsel and to remain silent, the accused applied to exclude the statements under s. 24(2) of the Charter - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application - Godin and Day were not acting as "agents of the state" in their interactions with the accused - This was an exchange between private individuals - Nothing supported a finding that the police had influenced at all what took place between them - The Charter did not apply - See paragraphs 36 to 45.

Civil Rights - Topic 8350

Canadian Charter of Rights and Freedoms - Application - Exceptions - Matters of a purely private nature - [See Civil Rights - Topic 8311 ].

Criminal Law - Topic 5353

Evidence and witnesses - Confessions and voluntary statements - Who is a person in authority - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 5353.1

Evidence and witnesses - Confessions and voluntary statements - Statements to persons not in authority - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - Godin, a loss prevention manager for Reitman's Canada Ltd., suspected that the accused was stealing from Reitman's by processing false refunds - She arranged a meeting with the accused and Day, the district sales manager - Just prior to the meeting, Godin gave the local RCMP a "courtesy call" about possible wrongdoing at the store - At the meeting with Godin and Day, the accused gave oral and written statements - She was charged with fraud - At issue was whether the accused's statements were admissible under the confessions rule - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the statements were admissible - Godin and Day were not "persons in authority" - There was no evidence that the accused believed that Godin or Day could influence or control any criminal proceedings against her - Further, the statements had been made voluntarily by the accused with an operating mind in the hope that she would not lose her job - See paragraphs 46 to 55.

Cases Noticed:

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 1990 CarswellOnt 1019F, refd to. [para. 9].

R. v. Dell (B.M.) (2005), 367 A.R. 279; 346 W.A.C. 279; 256 D.L.R.(4th) 271; 2005 CarswellAlta 967; 2005 ABCA 246, refd to. [para. 9].

R. v. Erven, [1979] 1 S.C.R. 926; 25 N.R. 49; 30 N.S.R.(2d) 89; 49 A.P.R. 89; 92 D.L.R.(3d) 507, refd to. [para. 11].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [para. 12].

R. v. Reid (D.L.) (2000), 192 Nfld. & P.E.I.R. 77; 580 A.P.R. 77; 2000 CarswellNfld 211 (T.D.), refd to. [para. 48].

Counsel:

Danny Vavasour, for the Crown;

Gregory French, for the accused.

This application was heard at Clarenville, N.L., on May 15 and September 10, 2015, by Handrigan, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on November 26, 2015.