R. v. W.H.A., (2011) 304 N.S.R.(2d) 141 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 15, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 304 N.S.R.(2d) 141 (SC);2011 NSSC 157

R. v. W.H.A. (2011), 304 N.S.R.(2d) 141 (SC);

    960 A.P.R. 141

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JN.052

Her Majesty The Queen v. W.H.A.

(CR Ant. 336695; 2011 NSSC 157)

Indexed As: R. v. W.H.A.

Nova Scotia Supreme Court

Rosinski, J.

April 21, 2011.

Summary:

The accused was charged with two counts of sexually assaulting a 17 year old girl. At issue on a voir dire was the admissibility of a statement blurted out by the accused upon his arrest and a subsequent video-taped statement at the police station. The accused alleged a denial of his right to remain silent and his right to counsel (Charter, ss. 7, 10(b)).

The Nova Scotia Supreme Court held that the accused's Charter rights were not violated. The statements were ruled to be admissible.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

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) - The accused was arrested for sexual assault - Sometime before or after he was advised of his Charter rights, the accused blurted out "I didn't rape anybody" - Although initially declining to speak to counsel, the accused subsequently had a 10 minute private conversation with duty counsel - The accused was then taken to an interview room, where he acknowledged that he was advised of his right to counsel and his right to remain silent and that counsel advised him to say nothing - Notwithstanding that the police advised the accused that he did not have to answer their questions, he gave a video-taped statement - The Nova Scotia Supreme Court held that there was no denial of the accused's right to counsel (Charter, s. 10(b)) - Alternatively, even if his right to counsel was denied, the court would not exclude the statements under s. 24(2) - The spontaneous statement "I didn't rape anybody" was made before the accused was arrested and detained - Accordingly, there could be no denial of the right to counsel and no exclusion of that statement - As the Crown proved beyond a reasonable doubt that both statements were voluntarily made, there was also no denial of the accused's s. 7 Charter right to remain silent - There were no threats or promises, no oppression, the accused had an operating mind and there was no police trickery - The accused, with knowledge that he need not say anything, voluntarily chose to give a statement.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 3160 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Civil Rights - Topic 3160 ].

Cases Noticed:

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 9].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340, refd to. [para. 13].

R. v. Wallace (R.E.) (2002), 204 N.S.R.(2d) 181; 639 A.P.R. 181; 2002 NSCA 52, refd to. [para. 22].

R. v. Galloway (M.) et al. (2007), 259 N.S.R.(2d) 99; 828 A.P.R. 99; 2007 NSCA 103, refd to. [para. 23].

R. v. Fraser (D.), [2011] O.A.C. Uned. 225; 2011 ONCA 238, refd to. [para. 29].

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, refd to. [para. 34].

R. v. K.P.L.F. (2010), 290 N.S.R.(2d) 387; 920 A.P.R. 387; 2010 NSCA 45, refd to. [para. 36].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189, refd to. [para. 37].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 38].

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. 42].

Ibrahim v. R., [1914] A.C. 599 (P.C.), refd to. [para. 45].

Counsel:

Catherine Ashley, for the Crown;

Coline Morrow, for the accused.

This application was heard on April 15, 2011, at Antigonish, N.S., before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on April 21, 2011.