R. v. Squires (E.), 2005 NLCA 51

• Judge: Wells, C.J.N.L., Welsh and Mercer, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: August 09, 2005
• Jurisdiction: Newfoundland and Labrador
• Citations: 2005 NLCA 51;(2005), 249 Nfld. & P.E.I.R. 14 (NLCA)

R. v. Squires (E.) (2005), 249 Nfld. & P.E.I.R. 14 (NLCA);

  743 A.P.R. 14

MLB headnote and full text

Temp. Cite: [2005] Nfld. & P.E.I.R. TBEd. AU.013

Eric J. Squires (appellant) v. Her Majesty The Queen (respondent)

(03/92; 2005 NLCA 51)

Indexed As: R. v. Squires (E.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Wells, C.J.N.L., Welsh and Mercer, JJ.A.

August 9, 2005.

Summary:

The accused was charged with first degree murder. A warrantless search of clothing in the accused's room led to the discovery of a t-shirt containing a stain believed to be blood. The accused's common-law spouse had consented to the search. The accused alleged that the evidence obtained from the warrantless search, which was the information relied on to obtain a search warrant the next day to seize the clothing, violated his s. 8 Charter rights.

The Newfoundland and Labrador Supreme Court, Trial Division, in a judgment reported (2003), 232 Nfld. & P.E.I.R. 79; 690 A.P.R. 79, held that the warrantless search of the accused's room, without his spouse's informed consent, constituted an unreasonable search and seizure. The remedy sought by the accused, and granted by the court, was excision of certain information contained in the information to obtain the search warrant. Now at issue was whether the search warrant was invalid on the basis that it was issued without reasonable and probable grounds.

The Newfoundland and Labrador Supreme Court, Trial Division, in a judgment reported (2003), 232 Nfld. & P.E.I.R. 98; 690 A.P.R. 98, held that the issuing justice did not err in issuing a search warrant based on the remaining information. The police had reasonable and probable grounds, absent the excised information, to support the issuance of a warrant. The accused was subsequently convicted by a jury of first degree murder. The accused appealed, submitting that notwithstanding that the search warrant was valid, there was a temporal connection between the evidence and the s. 8 Charter violation that required the trial judge to conduct a s. 24(2) analysis to determine whether the evidence should have been excluded. The accused also submitted that the trial judge erred in failing to put to the jury a defence theory or in not addressing a defence arising out of the evidence. Finally, it was alleged that the trial judge erred in responding to a jury question respecting the relationship between the accused's state of mind and alcohol consumption.

The Newfoundland and Labrador Court of Appeal dismissed the appeal.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Police investigating a murder were advised by the accused that he had been with the victim that day - Police went to the accused's residence to take him for voluntary questioning - One officer remained behind to take the accused's common-law spouse for questioning - The spouse told police that the t-shirt the accused wore that day was in their bedroom - The police requested an opportunity to view it - The spouse consented to this warrantless search - The police observed what appeared to be a blood stain - Based on the information obtained from the warrantless search, they obtained a search warrant - The warrantless search was found to constitute an unreasonable search and seizure for want of informed consent (Charter, s. 8) - The remedy granted was excision of certain information in the information to obtain the search warrant - The trial judge held that based on the non-excised information, there remained reasonable and probable grounds to issue the warrant - On appeal from his murder conviction, the accused alleged that the trial judge should have conducted a s. 24(2) Charter analysis respecting exclusion of the evidence - The Newfoundland and Labrador Court of Appeal held that the temporal connection between the Charter breach and the evidence required a s. 24(2) analysis - The court held that the nonconscriptive evidence was properly admitted - Trial fairness was not affected - The breach, although serious, was inadvertent rather than flagrant or in bad faith - Excluding the evidence "would exact too great a toll on the truth seeking goal of the justice system" - See paragraphs 21 to 41.

Criminal Law - Topic 1269

Murder - General principles - First degree murder - What constitutes - [See Criminal Law - Topic 1271 ].

Criminal Law - Topic 1271

Murder - Murder during commission of other offences - General principles - Section 231(5) of the Criminal Code provided that murder committed while committing or attempting to commit a sexual assault was first degree murder - The Newfoundland and Labrador Court of Appeal rejected the submission that "death of the victim before commission of the acts said to constitute sexual assault precludes application of s. 231(5)" - See paragraph 57.

Criminal Law - Topic 1278

Murder - Murder during commission of other offences - Jury charge - The accused was convicted of first degree murder under s. 231(5) of the Criminal Code by killing the victim while committing or attempting to commit a sexual assault - The victim's clothes were moved to expose her vagina and breasts - The accused did not testify - The accused alleged that the trial judge erred in failing to instruct the jury on the defence theory that the clothes were moved after death, as a diversion, precluding a finding of sexual assault - The Newfoundland and Labrador Court of Appeal held that there was no error, stating that "a proper jury instruction on the potential application of s. 231(5) must focus on the determination as a matter of fact whether the temporal and causal connections between the murder and the sexual assault are so close as to form a continuous single transaction. It would be incorrect in law to instruct the jury on the basis that death of the victim before commission of the acts said to constitute sexual assault precludes the application of s. 231(5)" - Further, there was no evidence that the accused knew that the victim was dead when he moved her clothes - See paragraphs 42 to 60.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - A jury convicted the accused of first degree murder under s. 231(5) of the Criminal Code for the killing of the victim while committing or attempting to commit a sexual assault - During deliberations, the jury asked the judge to clarify the relationship between alcohol consumption and intent - The judge conferred with counsel and provided a response, which neither counsel objected to - On appeal, the accused claimed that the judge erred in his response by, inter alia, providing a shortened version of the original charge without referring to the evidence fully (especially respecting the accused's alcohol consumption) - The Newfoundland and Labrador Court of Appeal rejected the submission - The response to the question was "clear, correct and thorough" - See paragraphs 61 to 72.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - [See Civil Rights - Topic 1646 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Civil Rights - Topic 1646 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Direction regarding defences and theory of the defence - [See Criminal Law - Topic 1278 ].

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - [See Criminal Law - Topic 1299 ].

Cases Noticed:

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 22].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 22].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 22].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 23].

R. v. Laurin (R.R.) (1997), 98 O.A.C. 50; 113 C.C.C.(3d) 519 (C.A.), refd to. [para. 25].

R. v. Smith (W.M.) (1998), 219 A.R. 109; 179 W.A.C. 109 (C.A.), refd to. [para. 25].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 26].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, refd to. [para. 26].

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. 28].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270, refd to. [para. 28].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 28].

R. v. Richard (A.N.) (1995), 141 N.S.R.(2d) 103; 403 A.P.R. 103 (C.A.), refd to. [para. 29].

R. v. Richard (A.N.), [1996] 1 S.C.R. 896; 195 N.R. 394; 150 N.S.R.(2d) 239; 436 A.P.R. 239, refd to. [para. 29].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 32].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 32].

R. v. Brilhante (2001), 83 C.R.R.(2d) 349 (Ont. Sup. Ct.), refd to. [para. 34].

R. v. King (A.G.) (1993), 114 Nfld. & P.E.I.R. 353; 356 A.P.R. 353 (Nfld. T.D.), refd to. [para. 34].

R. v. Cox (R.), [2003] O.T.C. 193 (Sup. Ct.), refd to. [para. 34].

R. v. Traverse (S.) (2003), 224 Nfld. & P.E.I.R. 122; 669 A.P.R. 122 (Nfld. & Lab. C.A.), refd to. [para. 36].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 37].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 39].

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 42].

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, refd to. [para. 42].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1, refd to. [para. 54].

R. v. Stevens (1984), 2 O.A.C. 239; 11 C.C.C.(3d) 518 (C.A.), refd to. [para. 54].

R. v. Muchikekwanape (R.) (2002), 166 Man.R.(2d) 81; 278 W.A.C. 81; 166 C.C.C.(3d) 144 (C.A.), refd to. [para. 54].

R. v. Ganton (G.C.) (1992), 105 Sask.R. 126; 32 W.A.C. 126; 77 C.C.C.(3d) 259 (C.A.), refd to. [para. 55].

R. v. Richer (R.J.) (1993), 141 A.R. 116; 46 W.A.C. 116 (C.A.), affd. [1994] 2 S.C.R. 486; 168 N.R. 198; 155 A.R. 210; 73 W.A.C. 210, refd to. [para. 55].

R. v. Quesnel (1991), 71 Man.R.(2d) 1 (C.A.), refd to. [para. 56].

R. v. Plewes (I.D.J.) (2000), 137 B.C.A.C. 13; 223 W.A.C. 13; 144 C.C.C.(3d) 426 (C.A.), refd to. [para. 57].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 59].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 63].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 64].

R. v. Waite (1986), 15 O.A.C. 215; 28 C.C.C.(3d) 326 (C.A.), refd to. [para. 65].

R. v. Naglik, [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161, refd to. [para. 65].

R. v. Pittman (E.M.) (1995), 136 Nfld. & P.E.I.R. 209; 423 A.P.R. 209 (Nfld. C.A.), refd to. [para. 68].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 231(5) [para. 53].

Counsel:

Averill Baker, for the appellant;

Pamela Goulding, for the respondent.

This appeal was heard on May 17, 2005, before Wells, C.J.N.L., Welsh and Mercer, JJ.A., of the Newfoundland and Labrador Court of Appeal.

On August 9, 2005, Mercer, J.A., delivered the following judgment for the Court of Appeal.