R. v. Tollefsen (I.), (2015) 364 Nfld. & P.E.I.R. 180 (NLTD(G))

• Judge: Burrage, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 11, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 364 Nfld. & P.E.I.R. 180 (NLTD(G))

R. v. Tollefsen (I.) (2015), 364 Nfld. & P.E.I.R. 180 (NLTD(G));

    1136 A.P.R. 180

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MR.042

Her Majesty the Queen v. Inger Tollefsen

(201401G5256; 2015 NLTD(G) 30)

Indexed As: R. v. Tollefsen (I.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Burrage, J.

February 11, 2015.

Summary:

The accused was charged with aggravated assault and assault with a weapon. The Crown sought to introduce alleged oral utterances of the accused obtained by Constable Davison of the Royal Newfoundland Constabulary. The defence objected to the introduction of those alleged utterances on two grounds. First, that the Crown could not prove beyond a reasonable doubt that the utterances were voluntary, in the sense that the accused had an "operating mind" at the time. Second, that the utterances were obtained contrary to the accused's Charter rights to remain silent, and retain and instruct counsel without delay. The defence submitted that the infringement was such as to warrant exclusion of the evidence pursuant to s. 24(2) of the Charter. The Crown agreed that if an infringement was found the evidence ought to be excluded.

The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the utterances attributed to the accused were voluntary, in the sense that they came from an operating mind. However, the court held that questioning the accused after she asked to see a lawyer violated the accused's s. 10(b) Charter rights to counsel, and right to remain silent. The court concluded that the alleged utterances made by the accused to Constable Davison after she expressed the desire to consult a lawyer would not be admitted into evidence at the trial.

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 4602 ].

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - Constable Davison placed the accused under arrest, advising her that she was being charged with assault with a weapon - The accused was placed in the back of the police car - Constable Davison advised the accused of her right to remain silent and her right to a lawyer - The accused requested the opportunity to speak with a lawyer - After the accused had expressed the desire to consult with a lawyer, the constable asked her if she had been consuming alcohol - The accused responded, "Yes, this morning we both were, and then I went to sleep" - She then showed the constable an apparent injury to her neck and continued "She attacked me first and I stabbed her, I was asleep" - Constable Davison also asked the accused the name of the alleged victim and how the two knew each other - In response, the accused identified the alleged victim as McWilliams and stated that the two had been in a relationship for three years - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that questioning the accused after she asked to see a lawyer violated her s. 10(b) Charter rights to counsel, and her right to remain silent - The response that allegedly came from the accused was not a spontaneous utterance, but was in direct reply to the questioning by Constable Davison - The court excluded the alleged utterances made by the accused to Constable Davison after she expressed the desire to consult a lawyer - See paragraphs 15 to 36.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 5340

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Effect of mental capacity of accused - [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 charged with aggravated assault and assault with a weapon - The charges arose from an alleged altercation with McWilliams - The Crown sought to introduce alleged oral utterances of the accused obtained by Constable Davison of the Royal Newfoundland Constabulary - The defence objected to the introduction of the alleged utterances, arguing that the Crown could not prove beyond a reasonable doubt that the utterances were voluntary, in the sense that the accused had an "operating mind" at the time - The defence submitted that there were four factual considerations to support the assertion that the accused did not have an operating mind: (i) the accused's emotional and psychological state; (ii) her intoxication; (iii) her lack of comprehension that she had a choice whether or not to speak; and (iv) the nature of the evidence - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that whatever utterances might be attributed to the accused were voluntary, in the sense that they came from an operating mind - While her emotional state was such as to contribute to the alleged remarks, it was not such as to deprive her of an understanding of the circumstances in which she found herself, and that those remarks might be used against her - See paragraphs 11 to 14.

Cases Noticed:

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. 11].

R. v. Singh (J.) (2007), 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 16].

R. v. Truong (V.M.), [2012] O.T.C. Uned. 2556; 2012 ONSC 2556 (Sup. Ct.), consd. [para. 18].

R. v. D.H.W., [2008] 2 S.C.R. 235; 375 N.R. 217; 255 B.C.A.C. 1; 430 W.A.C. 1; 2008 SCC 33, refd to. [para. 30].

R. v. Plaha (B.) (2004), 189 O.A.C. 376; 188 C.C.C.(3d) 289 (C.A.), refd to. [para. 30].

R. v. Papadopoulos (S.) et al., [2006] O.T.C. 1590 (Sup. Ct.), refd to. [para. 31].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 33].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 15]; sect. 10 [para. 17]; sect. 24(2) [para. 29].

Counsel:

Jennifer M. Colford, for the Crown;

Derek J. Hogan and Colin R. Sheppard, for the accused.

This application was heard on February 11, 2015, at St. John's, N.L., before Burrage, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered an oral decision on February 11, 2015, and the following written reasons for judgment on March 3, 2015.