R. v. Bonnell (C.), (2012) 410 N.B.R.(2d) 95 (TD)

R. v. Bonnell (C.) (2012), 410 N.B.R.(2d) 95 (TD);

    410 R.N.-B.(2e) 95; 1065 A.P.R. 95

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Temp. Cite: [2013] N.B.R.(2d) TBEd. OC.063

Renvoi temp.: [2013] N.B.R.(2d) TBEd. OC.063

Her Majesty the Queen v. Curtis Bonnell

(N/CR/7/2010; 2012 NBQB 24; 2012 NBBR 24)

Indexed As: R. v. Bonnell (C.)

Répertorié: R. v. Bonnell (C.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Ferguson, J.

January 21, 2012.

Summary:

Résumé:

The accused was charged with first degree murder of his 16 year old cousin. The Crown moved to have admitted certain statements that were made by the accused to RCMP officers (particularly Corporal Lupson), during a series of custodial interviews conducted between November 8 and December 2, 2009.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the motion.

Editor's Note: there are several decisions involving this accused.

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 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - The accused was charged with first degree murder of his 16 year old cousin (Hilary) - The Crown moved to have admitted certain statements that were made by the accused to RCMP officers (particularly Corporal Lupson), during a series of custodial interviews conducted between November 8 and December 2, 2009 - On November 8, the accused was arrested for the unrelated sexual assault of M.S. - The following interviews were extensive - In total, they lasted between 40 and 50 hours and took place both before and after the body of the victim was discovered toward the close of the first custodial interview on November 9 - The accused had taken the investigators into the wilderness to search for the location where she was buried - During the interviews, the accused repeatedly waived his right to counsel - The accused opposed the admission of the statements, arguing that there was a breach of s. 10(a) of the Charter given the failure to give the accused adequate notice that the extent of his legal jeopardy had changed when Lupson substantially finished the first phase of questioning the accused in relation to the alleged sexual assault of M.S. on the morning of November 9 and began questioning him about the disappearance and suspected murder of Hilary - The accused contended that at that point Lupson was obliged to stop the interview and "re-Charter" the accused for the suspected murder thus giving him the right to contact counsel at that time - The New Brunswick Court of Queen's Bench, Trial Division, rejected the assertions and allowed the motion - The officers told the accused repeatedly before the November 9 interview began about his right to counsel and, more importantly, that he was under investigation for murder - On separate occasions, the officers implored him to call counsel because murder was a serious charge - "The legal jeopardy of the accused did not change at any time in the sense that the allegation under investigation, as it related to the accused, changed in any legally significant way. Nor did the fundamental purpose of the investigation change or a discrete change within it occur." - Had the accused wanted to speak to counsel, he would have told Lupson that he wanted to speak to a lawyer - He knew what his right to counsel was - He knew that all he had to do was tell Lupson he wanted to speak to counsel and Lupson would have been obliged to fulfill the promise he made to him in the morning to allow him access to counsel anytime he expressed that wish - Nor was there was any obligation for the police to give the accused another rendition of his right to counsel when the interview shifted to the murder file from the sexual assault allegations because it was always clear that his potential legal jeopardy on that file was for murder - See paragraphs 299 to 314.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was charged with first degree murder of his 16 year old cousin (Hilary) - The Crown moved to have admitted certain statements that were made by the accused to RCMP officers (particularly Corporal Lupson), during a series of custodial interviews conducted between November 8 and December 2, 2009 - On November 8, the accused was arrested for the unrelated sexual assault of M.S. - The following interviews were extensive - In total, they lasted between 40 and 50 hours and took place both before and after the body of the victim was discovered toward the close of the first custodial interview on November 9 - The accused had taken the investigators into the wilderness to search for the location where she was buried - During the interviews, the accused repeatedly waived his right to counsel - The accused opposed the admission of the statements, arguing that there was a breach of s. 9 of the Charter - He asserted that he was neither arrested without a warrant, pursuant to s. 295(1) of the Criminal Code, for the murder, nor detained for it formally pursuant to s. 9 of the Charter - He submitted that he was over held on November 9 after the first file (the unrelated sexual assault of M.S.) was dealt with and the questioning on the murder file began - The four issues that the defence contentions effectively raised included: 1) whether the police had both subjective and objective reasonable grounds to arrest the accused for the unlawful homicide of murder on November 8-9; 2) whether the accused was de facto, or effectively, arrested or detained on November 8-9 for murder; 3) if so, was he entitled to be informed of either of that status if one or both existed at the time; and 4) if he was effectively arrested or detained on the murder file could the police continue to investigate that crime by interviewing him and taking him to try to find the burial site - The New Brunswick Court of Queen's Bench, Trial Division, rejected the assertions and allowed the motion - Not much turned on whether the accused was de facto arrested or detained - The police met the grounds for a lawful arrest, and therefore, met the grounds for a lawful detention - Having taken the accused into custody by way of specific arrest on the M.S. sexual assault file and by detention or de facto arrest on the murder file, they could continue the investigation by questioning him and taking him out to try and find the body once the accused agreed to do so - The accused was not over held unlawfully and thus not detained arbitrarily - See paragraphs 315 to 356.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 3142 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with first degree murder of his 16 year old cousin (Hilary) - The Crown moved to have admitted certain statements that were made by the accused to RCMP officers (particularly Corporal Lupson), during a series of custodial interviews conducted between November 8 and December 2, 2009 - On November 8, the accused was arrested for the unrelated sexual assault of M.S. - The following interviews were extensive - In total, they lasted between 40 and 50 hours and took place both before and after the body of the victim was discovered toward the close of the first custodial interview on November 9 - The accused had taken the investigators into the wilderness to search for the location where she was buried - During the interviews, the accused repeatedly waived his right to counsel - The accused opposed the admission of the statements alleging violations of his ss. 9, 10(a) and 10(b) Charter rights - The New Brunswick Court of Queen's Bench, Trial Division, held that there was no Charter breach - If the court was mistaken and the accused was arbitrarily detained in violation of s. 9 of the Charter, it would not have excluded the evidence under s. 24(2) of the Charter - Applying the R. v. Grant (D.) (2009 SCC) factors, the court found that: 1) The accused was in lawful custody on other matters at the time the questioning of him turned to the subject of the murder; 2) if the detention on November 9 for the murder file was arbitrary it just barely failed to meet the evidentiary standard required of the police in complicated legal circumstances for them; 3) the conduct of the police was otherwise Charter compliant and in a number of respects exceeded what was required of them, especially as it related to the fundamentally important Charter value of the right to counsel; 4) the accused clearly controlled the disclosure of information throughout the interview on November 9; and 5) the reliability of the evidence was not a serious issue and, with respect to the location of the burial site and finding the body, the impugned evidence was incontrovertible - Taking all of these and all other relevant evidentiary factors into account, the admission of the evidence could not bring the administration of justice into disrepute - See paragraphs 374 to 409.

Criminal Law - Topic 5335

Evidence and witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - [See third Criminal Law - Topic 5355 ].

Criminal Law - Topic 5339.2

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Effect of prior inadmissible statements - [See fourth Criminal Law - Topic 5355 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused, a 29 year old aboriginal, was charged with first degree murder of his 16 year old cousin - The Crown moved to have admitted certain statements that were made by the accused to RCMP officers (particularly Corporal Lupson), during a series of custodial interviews conducted between November 8 and December 2, 2009 - The interviews were extensive - In total, they lasted between 40 and 50 hours and took place both before and after the body of the victim was discovered toward the close of the first custodial interview on November 9 - The accused had taken the investigators into the wilderness to search for the location where she was buried - The accused opposed the admission of the statements, arguing that they were the product of oppression and promises and thus not proven to have been voluntarily made - The accused also alleged violations of his ss. 9, 10(a) and 10(b) Charter rights - The New Brunswick Court of Queen's Bench, Trial Division, stated that "[w]hen an accused is interviewed for such a lengthy time, even over a period of a month, the trial judge's reviewing lens must be especially carefully focused upon voluntariness as it relates to the duration of the interviews and the impact such a series of interactions had on the psychological ability of the accused to retain control of his free will. Put another way, a trial judge must be vigilant in determining whether there is any reasonable doubt the will of the accused was overborne by the interviewing officer or officers such that an atmosphere of oppression resulted." - See paragraph 9.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was charged with first degree murder of his 16 year old cousin - The Crown moved to have admitted certain statements that were made by the accused to RCMP officers (particularly Corporal Lupson), during a series of custodial interviews conducted between November 8 and December 2, 2009 - The interviews were extensive - In total, they lasted between 40 and 50 hours and took place both before and after the body of the victim was discovered toward the close of the first custodial interview on November 9 - The accused had taken the investigators into the wilderness to search for the location where she was buried - The accused opposed the admission of the statements, arguing that that they were the product of oppression thus not proven to have been voluntarily made - He advanced four principal themes: (1) his fatigue at the time of the November 9 interview; (2) his alleged misapprehension of the legal jeopardy he faced on November 8 and 9; (3) a fear he claimed to have of Lupson and (4) he was denied food as well as access to a washroom - The New Brunswick Court of Queen's Bench, Trial Division, rejected the assertions and allowed the motion - The accused was an "intelligent, experienced, sophisticated, savvy and careful interview subject" - The accused was "very assertive" and seemed to have control of the interviews at times - There was nothing in the evidence that would lead to a reasonable doubt that there was a reasonable hint of oppression in the air during these interviews - The officers clearly indicated the reasons for the interviews (murder investigation), explained the accused's right to counsel and implored the accused exercise his right to counsel given the possible legal consequences - He was offered food, drink and cigarettes - See paragraphs 231 to 263.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused, a 29 year old aboriginal, was charged with first degree murder of his 16 year old cousin - The Crown moved to have admitted certain statements that were made by the accused to RCMP officers (particularly Corporal Lupson), during a series of custodial interviews conducted between November 8 and December 2, 2009 - The interviews were extensive - In total, they lasted between 40 and 50 hours and took place both before and after the body of the victim was discovered toward the close of the first custodial interview on November 9 - The accused had taken the investigators into the wilderness to search for the location where she was buried - The accused opposed the admission of the statements, arguing that that they were the product of promises and thus not proven to have been voluntarily made - The accused advanced three different inducements offered to him by Lupson: 1) to tell the community of Burnt Church of his good deed, and also to tell them he was sorry for what happened if he identified the location of the victim's body to the police; 2) to help ensure that the accused's infant son was taken care of; and 3) to be there "for the long haul" to take the accused's calls if need be to insure that the Correctional Service of Canada fulfilled its mandate to protect the accused to the same standard it would other inmates - The New Brunswick Court of Queen's Bench, Trial Division, rejected the assertions and allowed the motion - The accused was no ordinary naive accused - This accused had "experience, confidence, savvy and intelligence, as well as a verbal aggressiveness when it was required by him" - He was not intimidated by the fact he was dealing with the police - He had no doubt experienced it many times in the past judging by his criminal record and his statements about dealing with the police previously - In many instances he demonstrated a "non-compliant personality" - His careful management of information dissemination process throughout the interviews confirmed that assessment of him - The promises made did not constitute the kind of inducements "to him" that raised, individually or collectively, a reasonable doubt the statements were not voluntary - Among the many other reasons, the accused's professed mistrust for non-natives helped formulate that opinion - See paragraphs 264 to 293.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was charged with first degree murder of his 16 year old cousin - The Crown moved to have admitted certain statements that were made by the accused to RCMP officers (particularly Corporal Lupson), during a series of custodial interviews conducted between November 8 and December 2, 2009 - The interviews were extensive - In total, they lasted between 40 and 50 hours and took place both before and after the body of the victim was discovered toward the close of the first custodial interview on November 9 - The accused had taken the investigators into the wilderness to search for the location where she was buried - The accused opposed the admission of the statements, arguing that they were the product of promises and thus not proven to have been voluntarily made - The New Brunswick Court of Queen's Bench, Trial Division, found that the statements were not involuntary - If the court was in error and assuming that the November 9 statements were involuntary by reason of the impact of an inducement or inducements made by Lupson, the principal issue to be determined was whether statements (including a full confession) made to Lupson and to David Gehue on December 2 were tainted by those earlier involuntary admissions - The court was satisfied that none of the previous interviews played any part in the accused's decision to disclose the details of the murder - The tainting factors did not continue to be present at any time after November 9, nor was the fact that the first statement was made a substantial contributing factor to the confession on December 2 - See paragraphs 358 to 372.

Droit criminel - Cote 5335

Preuve et témoins - Confessions et déclarations volontaires - En quoi consiste une "menace" ou une "incitation" - [Voir Criminal Law - Topic 5335 ].

Droit criminel - Cote 5339.2

Preuve et témoins - Confessions et déclarations volontaires - Admissibilité - Effet de déclarations antérieures inadmissibles - [Voir Criminal Law - Topic 5339.2 ].

Droit criminel - Cote 5355

Preuve et témoins - Confessions et déclarations volontaires - La déclaration a-t-elle été faite librement et volontairement - [Voir Criminal Law - Topic 5355 ].

Droits et libertés - Cote 3142

Procès - Application régulière de la loi, justice fondamentale et audiences équitables - Affaires criminelles et quasi-criminelles - Arrestation ou détention - Droit d'être informé des motifs (Charte, art. 10(a)) - [Voir Civil Rights - Topic 3142 ].

Droits et libertés - Cote 3603

Détention et emprisonnement - Détention - En quoi consiste la détention arbitraire - [Voir Civil Rights - Topic 3603 ].

Droits et libertés - Cote 4608

Droit à l'assistance d'un avocat - Généralités - Droit d'être informé de ce droit - [Voir Civil Rights - Topic 4608 ].

Droits et libertés - Cote 8368

Charte canadienne des droits et libertés - Négation des droits - Mesures de redressement - Exclusion de la preuve - [Voir Civil Rights - Topic 8368 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 5].

R. v. Côté (A.) (2011), 421 N.R. 112 (S.C.C.), refd to. [para. 5].

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, refd to. [para. 9].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 46].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 46].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 46].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 214].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74 (S.C.C.), refd to. [para. 214].

R. v. Erven (1978), 25 N.R. 49; 44 C.C.C.(3d) 76 (S.C.C.), refd to. [para. 226].

R. v. Albrecht, [1966] 1 C.C.C. 281, refd to. [para. 226].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 227].

R. v. Tessier (C.S.), [2002] 1 S.C.R. 144; 289 N.R. 203; 250 N.B.R.(2d) 203; 650 A.P.R. 203, refd to. [para. 232].

R. v. Spencer (B.S.) (2007), 358 N.R. 278; 237 B.C.A.C. 1; 392 W.A.C. 1 (S.C.C.), refd to. [para. 267].

Brewer v. Williams (1977), 430 U.S. 387, refd to. [para. 298].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 303].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233, refd to. [para. 303].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 303].

R. v. O'Donnell (1991), 118 N.B.R.(2d) 91; 296 A.P.R. 91 (C.A.), refd to. [para. 303].

R. v. L.T.H., [2008] 2 S.C.R. 739; 379 N.R. 247; 268 N.S.R.(2d) 200; 857 A.P.R. 200; 2008 SCC 49, refd to. [para. 304].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 335].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 335].

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. 336].

R. v. Mangat (G.S.) (2006), 213 O.A.C. 266; 209 C.C.C.(3d) 225 (C.A.), refd to. [para. 347].

R. v. E.W. (2002), 216 Nfld. & P.E.I.R. 89; 647 A.P.R. 89; 168 C.C.C.(3d) 38; 2002 NFCA 49, refd to. [para. 347].

R. v. Wittwer - see/voir R. v. D.H.W.

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. 359].

R. v. S.G.T., [2010] 1 S.C.R. 688; 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14; 2010 SCC 20, refd to. [para. 360].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 375].

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. 375].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 376].

R. v. Martin (G.W.) (2010), 361 N.B.R.(2d) 251; 931 A.P.R. 251; 2010 NBCA 41, refd to. [para. 377].

R. v. Way (C.L.) (2011), 377 N.B.R.(2d) 25; 972 A.P.R. 25; 2011 NBCA 92, refd to. [para. 377].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 378].

R. v. Briand, [2003] J.Q. No. 18060 (C.A.), refd to. [para. 385].

Yousef v. United States of America (2003), 174 O.A.C. 286 (C.A.), refd to. [para. 386].

R. v. C.J.L. (2004), 190 Man.R.(2d) 177; 335 W.A.C. 177; 24 C.R.(6th) 252 (C.A.), refd to. [para. 386].

R. v. Plaha (B.) (2004), 189 O.A.C. 376; 188 C.C.C.(3d) 289; 24 C.R.(6th) 360 (C.A.), refd to. [para. 386].

Authors and Works Noticed:

Hill, Tanovich and Strezos, McWilliams' Canadian Criminal Evidence, pp. 23-25 [para. 268].

Counsel:

Avocats:

William Richards and Jonathan Matters, for the Crown;

Gilles Lemieux, for Curtis Bonnell.

This motion was heard between November 15 and December 15, 2011, by Ferguson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following decision on January 21, 2012.