Evidence gained by use of Reid technique excluded
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Page: 17
[46] At one point in this part of
the interview, Corporal MacLean placed his hand on Minde's
shoulder, purportedly to comfort him, however, I do not accept
his testimony that this was his
purpose, given the comments he made while maintaining physical
contact with Minde and his
knowledge of this feature of the Reid technique:
Q. ... but tell your story Mitch. Tell people you weren't a killer.
(Inaudible -
background) ... tell people it's an accident. Tell it like it's
supposed to be.
A. (blowing his nose)
[47] Minde continued to be unresponsive to questioning. When
he asked what was going to
happen now, he was again deflected by Corporal MacLean's return
to the events of January 3rd.
[48] Minde again indicated that he did not "feel like talking
right now", which Corporal
MacLean attempted to deflect with a different confrontational
theme, namely that Minde had
been seeing another woman. Minde repeated that he didn't "feel
like talking right now".
[49] Corporal MacLean then proceeded into a discussion about
honour in reference to Minde's
brother, then a Chief of a band, and again attempted to minimize
Minde's culpability:
Q. ... Like I say we all make mistakes, that's why they put erasers
on pencils.
Everyone makes mistakes.
At one point, Minde asked:
A. Have I made a statement yet?
Q. Sorry?
A. Have I made a statement yet?
Q. You have to know that every, our discussion is recorded as
I told you when you
came first.
[50] Despite Minde's obvious confusion in that regard, after
a period of silence, Corporal
MacLean proceeded with another monologue on pride and honour
and another series of
questions, whether Ms. Currie "was just yabbering at ya?
... shouting at ya, cursing you out?"
whether he gave her a backhander, a bit of a slap, to which Minde
responded: "I'll have to soul
search here."
[51] More confusion as to what he should do is evident from Minde's
comment as Corporal
MacLean's questioning persisted:
A. Should I maybe wait till I see my lawyer?
Q. ...that'll be your decision.
Page: 18
A. ...I don't feel like ... talking
anymore.
Q. You don't?
A. (no verbal response - shaking head no)
Q. Okay, well you don't have to talk, that's your choice. (period
of
silence)(Inaudible - talking at the same time) ...
A. (Inaudible - talking at the same time)...he wanted me to phone
him back.
[52] From this exchange, I find that Minde made it clear to Corporal
MacLean that he did not
wish to talk. The interview had at this point been proceeding
for about two hours. Rather than
enquire whether he wished to call his lawyer back, he was again
deflected by what I find to be the
most troublesome and dangerous theme employed by Corporal MacLean,
insofar as it is linked to
his planting of the earlier deceit regarding Ms. Currie having
"told the truth" and the autopsy
results:
Q. Okay, you have to remember how the facts will go into court.
A. Which is?
Q. Facts will go in, she died from blunt force trauma.
Medial Examiner will
certainly give his opinion as to how much force was used and
whether that
puts you up there as being sober enough to do it and focussed
enough to
cause that injury and knowing that you did it, without you clarifying
for us
how it happened and the Judge, or Judge and Jury can make their
own
determination based on those findings ...(tape cuts out here...)...what
Cheryl
told the Hospital staff in Red Deer...she's a person that's dying
so her words
to them can be entered in court. So maybe her account can stand
as the
truth. That's the decision you'll have to make. What you
have here today is an
opportunity to tell the truth. The truth.
A. I know but David [a reference to his lawyer] said not to say
anything else unless I
talk to him.
[emphasis added]
[53] This exchange is of concern for a number of reasons; first,
it proposes the introduction of
what Corporal MacLean acknowledged was false evidence (that Ms.
Currie "told the truth") in
the eventual court hearing; it discusses the evidence putting
him "up there" in relation to being
focussed and sober enough. I find that these comments created
the impression that unless Minde
told his own, presumably mitigated version of the events, feelers
of which had been extended to
him repeatedly throughout the interview, he would be judged on
the basis of a more serious
version of the events, a form of quid pro quo. Indeed,
on the next page of the transcript Corporal
MacLean left no doubt as to the precise context of his earlier
remarks, when he asked Minde
whether he was surprised that he was "being charged for
murder or that you're under arrest for
murder". He then declared: "You'll be charged with
murder, yeah." Under cross-examination,
Corporal MacLean acknowledged that he was aware that intoxication
and focus distinguish
murder from less culpable offences although he denied defence
counsel's suggestion that what he
Page: 19
was in effect saying to Minde was
that he would be found guilty of murder if he did not tell his
side of the story.
[54] He did however concede under cross-examination that the
reason for introducing the
deceit that Ms. Currie "told the truth" was to imply
that there was perhaps other evidence that
would make him more culpable. Minde eventually admitted later
in the interview, at that time to
Constable McCullum, to kicking Ms. Currie and pushing her away,
but in self-defence to get her
to leave, that after she woke him up, she struck him and swore
at him, that he wanted to sleep, all
scenarios which had been suggested by Corporal MacLean to him
earlier in the interview. The
deceit (that Ms. Currie "told the truth") coupled with
Corporal MacLean's repeated suggestion
that Minde tell his side of the story, and his assurance that
he did not think that Minde meant for
her to die, also created, in my view, a real risk that Minde
reached for a less culpable alternative
to avoid conviction for a more serious offence, particularly
having regard to Minde's
consumption of alcohol on January 2nd
and his references to his lack of
recollection, to
undergoing hypnosis, to searching his mind and his soul, all
indicative of an imperfect
recollection of the events of January 3rd. It is noted that shortly
following upon Corporal
MacLean's introduction of the Ms. Currie's "truth"
theme in conjunction with the courtroom
scenario, Minde reiterated that he was going to go under hypnosis
(p. 37). When asked "What
were you gonna do that for?", he responded "To find
out I guess".
[55] When asked about this risk that Minde may have simply regurgitated
to Const. McCullum
a less culpable version of the events proposed to him, Corporal
MacLean indicated that such a
thing had not occurred in his experience. He acknowledged, however,
that the scenario he
proposed was "to some degree" similar to Minde's later
inculpatory statement, but noted that
more specifics were provided in the subsequent re-enactment such
as how he was laying on the
bed, how he kicked Ms. Currie away and how pushed her out the
bedroom door.
[56] I find that there was here a threat, albeit veiled and oblique,
that Ms. Currie's "truth" that
he meant to kill her would be accepted unless he told his side
of the story. It could also be
viewed as a form of veiled inducement, that if he told his side
of the story, one which the officers
said they believed, namely that he did not mean to kill her,
then the consequences would be less
serious for him. This theme was picked up again later in the
interview after a confusing
monologue about the right to remain silent and speaking with
counsel:
"... I don't think you meant for her to die. You don't
want people making the decision
based on what Cheryl says. And determine that maybe you did mean
for her to die".
[emphasis added]
[57] The clear inference from this passage was that the (fabricated)
version of Ms. Currie
would be placed before the court and that on her version, he
meant for her to die. Corporal
MacLean then went on to make a spiritual appeal:
Page: 20
Q. ... I'll tell you one other thing,
if your soul feels heavy now I guarantee you'll feel a whole
lot better when you've told the truth because the truth will
set your soul free. It won't be
burdened before.
Again Corporal MacLean asked Minde to tell him what happened,
but he appeared confused:
A. Even on the advice of my lawyer not to say anything else?
Q. That has to be your decisions....we get advice all the time,
you have to deal with
that advice, you have to make the decision, it has to be yours.
You have a mind.
You have to weigh the consequences.
[58] Again he was reminded about only one version being left
which I find to be a further
reference to Ms. Currie's "truth". Corporal MacLean
then added:
Q. ... I can't make you any promises, I can't tell you that if
you talk to me today and
tell me the truth that the door will fling wide open and you
can go home. I can't
make that promise, I wish I could but I can't, it's not that
simple. I can't promise
you that you telling me the truth means that you get a lighter
sentence, that's
beyond me. What I can promise you that if you tell the truth,
if you decide as
a person to make a decision to tell me what happened, then that
will certainly
be presented.
[emphasis added]
[59] Although making it clear he was making no promises, he then
proceeded to promise
Minde that his statement to Corporal MacLean will "certainly
be presented". Examined in the
context of his earlier discussion about Ms. Currie's (fabricated)
"truth" being presented in court,
this would be a promise he could not necessarily keep once the
investigation concluded.
[60] Another reference by Minde to needing to phone his lawyer
finally prompted Corporal
MacLean to allow him another phone call and the interview broke
at 5:01 p.m.
[61] In reference to Minde's argument that s. 10(a) of the Charter
was breached by the failure
of both officers to advise him, upon his arrest, of the charge
he was facing, it is clear that he was
aware, by the time he made the second phone call, that he had
been arrested for murder.
Accordingly, I am not of the view that the accused has discharged
his onus of establishing a
breach of his s. 10(a) Charter rights on a balance of
probabilities.
[62] I find, in the absence of evidence suggesting the contrary,
that Minde spoke to counsel a
second time shortly after 5:00 p.m. The interview resumed at
about 5:26 p.m., this time with
Constable McCullum replacing Corporal MacLean. To this point,
Minde had not received food
or refreshment or a bathroom break, nor, however, had he requested
them. He was, however,
permitted to smoke throughout the interview by both officers.
Page: 21
[63] Invoking now familiar features
of the Reid technique, Constable McCullum immediately
proceeded to compliment Minde for his courage and to suggest
that he did not mean Ms. Currie's
death to happen. He asked to shake his hand and, while continuing
to hold his hand for several
seconds, commented that he came from a strong family and that
"we need to find out exactly
what happened". A new suggestion was made to Minde at this
point, one not canvassed prior to
him having consulted with counsel, but taking the familiar form
of an "alternative question":
Q. I don't know if it's easier for you to talk about it and tell
me or if it's better if we
drove back out there and you can show me exactly what happened.
What do you
think about that?
A. Ohh (sighs) I talked to ahh, David Cunningham a little while
ago and but I'm not
sure if I made any statements and he kind of advised me, like
not to say anything
else.
Q. Okay how about showing us, as far as not, not saying, we
we got a pretty good
idea okay, but what happens lots of times Mitch, we get the pieces
out of order,
it's like a puzzle...
[emphasis added]
[64] The highlighted statement is made at the beginning of a
lengthy monologue. When asked
under cross-examination whether he was trying to suggest to Minde
that "showing" rather than
"saying" might avoid following his lawyer's advice
not to say anything else, Constable
McCullum responded that he was offering Minde an option and denied
that the option was one
that took advantage of Minde's naivete.
[65] Minde responded:
A. So what you're saying is you would drive me back there and
according to what I
remember I would just...
Q. Point out where things took place.
A. Umm, what about the advice from my lawyer?
Q. Well, I mean I'm sure Dan talked to you about that too didn't
he?
A. yeah, it's my choice...
Q. Yeah, it's your choice....
[66] There followed a lengthy monologue in which Constable McCullum
drew an analogy to
Minde's brother, a Chief, consulting before making decisions
but making the final decision
himself. It was pointed out to Constable McCullum under cross-examination
that this analogy
ignored the experience a Chief brings to his position, contrasted
with detainees' lack of
experience in making decisions about their rights, hence their
need for legal advice. In the
present case, Minde's state of uncertainty about what to do and
whether he had already made a
statement were indicators of his naivete in legal matters.
Page: 22
[67] Although Constable McCullum,
on being asked by Minde if showing them will be "like a
statement that I'm doing if I go and try to recount", responded
"That's yeah you could describe it
as that but we call it a re-enactment", he then returned
to the minimization theme introduced
earlier by Corporal MacLean, in describing a re-enactment he
had done recently:
Q. ...the person showed us exactly what had happened ... then
we could see that it
wasn't how it looked, you know it appeared like it was this wild
scene, really it
wasn't, it was actually a small incident ...
[68] Bearing in mind that by this point, Minde had already been
told that he would be charged
with murder and the fabricated theme had already been put to
him by Corporal MacLean in the
form of Ms. Currie's "truth", that "murder"
was where they "had to start" was again introduced
as a theme, this time by Corporal McCullum:
Q. Like right now, what do you think would be the appropriate
charge for you?
A. I have no experience, no idea whatsoever, but not murder.
No way.
Q. Kay, and see that's, you know, that's where we have to
start because we don't
know how serious of things took place, or how it even started.
I know that
following this doesn't make to me, for a murderer. They don't
stick around,
you're still here, you still stayed in town, you didn't go anywhere,
you took care of
all the responsible things. Okay, including when Cheryl was hurt
taking her to the
hospital. Right that, I mean you watch TV too, that's not what
normally happens
with murderers is it?
A. (no verbal response - nods head no).
Q. And so when you say not murder, I don't have any problem
with that but I
just need to know why and part of knowing why or figuring it
all out is
getting your side of the story.
[emphasis added]
[69] By stating that murder was where they were starting and
that he needed to know Minde's
side when he said "not murder", the clear implication
was that to make it something less, the
officer needed to hear Minde's side of the story.
[70] Const. McCullum was referred in cross-examination to the
following passage in Corporal
MacLean's interview of Minde referring to the deceit about Ms.
Currie "telling the truth":
Q. Is Cheryl's version the only version you want brought forward...to
the court? Is
that the only version that people should hear?
A. No of course not.
Page: 23
Q. Because like I said to you before
Mitch, I don't think you meant for her to die.
You don't want people making the decision based on what Cheryl
says. And
determine that maybe you did mean for her to die.
[71] Constable McCullum agreed that Minde may have interpreted
Corporal MacLean's
comments as Ms. Currie having told the truth that Minde intended
her to die, although those
words were never actually used. He acknowledged that when he
commenced interviewing
Minde after arresting him, he also picked up on the deceit that
what Ms. Currie had been saying
had changed. Like Corporal MacLean, he indicated to Minde that
the version he was aware was
fabricated would be told in court.
[72] It is at this point, approximately three hours into the
interview, that Minde indicated his
willingness to break his silence:
A. Okay, now that I had a little bit of rest, the past 72 hours,
I was able to think a
little more straight there, the alcohol left my system.
Q. Right.
A. I think I'd like to do that even if it is a statement. I'm
gonna go recall what I
remember what happened. Yeah I'd like to do that, take you guys
over there.
Q. Kay.
A. Just tell you my account.
[73] Minde then stated that he had a lot to drink that night,
that there could not have been
anybody else home when it happened; that as soon as he got back
(from buying beer) he went to
bed. He recounted being woken up by the deceased, being kicked
and sworn at by her, that he
tried to get her to stop and just go home and let him sleep,
that he was "more or less" restraining
her, trying to push her away. He stated that it was happening
"kind of" by his bedroom door, or
on the mattress on the floor of the bedroom. He indicated that
he kicked her trying to get her
away. He stated that he did not know how many times he kicked
her, he thought about three
times she came into the room and disrupted him, then he said:
"Twice at least I dunno. Like to,
to get her away, like to restrain her." He indicated that
he was still drunk at the time.
[74] After discussing Minde's attendance at Ms. Currie's funeral,
Const. McCullum suggested
that Minde write an apology letter to Ms. Currie's mother which
he proceeded to do over several
minutes. I find that the completion of the apology letter was
part of the interview which had
commenced some three hours before.
[75] Const. McCullum indicated that he had no fear that when
alternative versions of an event
are put to an individual who has no memory of the event, he might
take the opportunity to adopt
less culpable suggestions made to him as this had not been his
experience in the past. He
conceded that at the preliminary inquiry he had stated "I've
read of that", a response he had given
without qualification. At trial, he qualified his response, stating
that he had been referring to
Page: 24
people with mental illness. However,
he acknowledged that Minde had given him back a less
culpable version of the events containing a number of elements
suggested to him during the
course of the interview, albeit with more specificity.
[76] In the words of Watson J. in R. v. Millar, supra,
at para. 228, a number of "inductive
mental and conversational devices" were used by both officers.
Watson J. recognized that a
decision to use these techniques carries the risk of a Court
concluding that the accumulation of
factors insinuated to the listener in the process are such as
to constitute inducements or threats or
oppression under Oickle, supra.
[77] After making the incriminating statement, Minde
received his first offer of refreshment.
After he completed the apology letter, and in a transparently
self-serving concluding discussion,
Constable McCullum asked Minde:
Q. ... we like to make sure that people we talk to, how they
feel they were treated and
ahh, like I said, not everybody talks to us but there's a reason
that some people do
and we like to know what that reason was and how you thought
you were treated
today.
A. I was treated all right I guess, in a professional manner.
Q. Kay.
A. And ahh, you have to do your job, I realize that.
[78] Not receiving a complete answer, Constable McCullum persisted,
asking again if there
was any reason "beside the fact of your beliefs and the
person who you are", Minde again
mentioned that he wanted to go through hypnosis,"in the
back of my mind I, I just wanted to
make sure I didn't wanna believe but I guess I blocked it out.
I still don't wanna believe it now."
[79] Minde was then permitted to go to the washroom, to see his
brother and his brother's wife
for a few minutes, then was transported directly to his residence,
accompanied by Corporal
MacLean, Constable McCullum and Constable (now Corporal) Massey,
an identification officer,
for the re-enactment.
[80] I accept Corporal MacLean's testimony, as supported by an
audio-recording, that the trip
to and from the re-enactment was uneventful and that no attempts
were made to elicit evidence
from Mr. Minde nor do I find any threats, promises or inducements
made during this time, none
having been alleged by defence nor appearing in the transcript
of the audio tape.
[81] The re-enactment started at approximately 8:03 p.m., within
approximately an hour and
one-half of the completion of the video taped interview. There
were problems with the audio
portion of the re-enactment. Constable Massey, who was operating
the video camera, stated, and
I accept, that the re-enactment had not yet started when the
audio problems first arose, as is
evident from the videotape. However, further sound outages arose
during the re-enactment, at
one point, for seven seconds, and a few minutes later, for some
15 seconds. Corporal Massey
Page: 25
confirmed that there was discussion
which was not available due to audio malfunction. Corporal
MacLean was unable to fill in the inaudible parts of the re-enactment.
After showing the officers
what happened at the bedroom door and around it, Minde is seen
on the video to take a seat at the
kitchen table. Although he is clearly talking, no audio was available
for a total of some four
minutes. Constable McCullun testified that all that followed
the re-enactment was Minde asking
if he could burn some sage, that Minde had a cigarette and said
some prayers then they proceeded
to lock up the residence. However, none of the officers present
had taken notes. Corporal
Massey recalled that at the end of the re-enactment, when Minde
was sitting at the table, there
was some conversation, that he said something about "should
of stopped drinking sooner". This
is obviously something said in addition to what was reported
by McCullum and raises concerns
about whether Minde continued to discuss his actions of January
3rd during the final extended
period of audio malfunction.
[82] I am of the view that given their sequence, the statement,
the apology letter and reenactment
are inextricably bound up in the continuing police interrogation
process (as was
similarly found in R. v. Giroux, [1995] B.C.J.
No. 1982 (B.C.S.C.)). For example, Minde had no
extended period to reflect upon his circumstances before being
escorted through the reenactment.
[83] Accordingly, I find that my determination as to voluntariness
and Charter breaches
applies to all forms of admission made by Minde to police on
January 4th. However, I am also
of the view that the re-enactment does not pass even threshold
admissibility as it cannot be said
with any confidence that it constitutes a complete record of
the words and actions of the accused.
As noted by Charron J.A. for the Court in R. v. Moore-McFarlane
et al. (2001), 160 C.C.C.
(3d) 493 (Ont. C.A.), at 518:
....the completeness, accuracy and reliability of the record
have everything to do with the
court's inquiry into and scrutiny of the circumstances surrounding
the taking of the
statement.
[84] As to operating mind, I am satisfied that Minde understood
what was being said to him
by the officers on January 10th, including some of the oblique
references I have referred to, that
he was oriented as to time and space and could accurately predict
the consequences of the
statements he made and that were made to him.
V. THE ARGUMENTS OF COUNSEL
[85] Crown counsel argued that
there was no direct threat, promise or inducement here, no
direct express quid pro quo offered by police and that
the accused made his own decision, for his
own reasons, to talk to police. He distinguished the case authorities
provided by defence counsel
in which Reid techniques were criticized on the basis that these
cases were decided before
Oickle, supra and, in any event, turned on their
own particular facts.
Page: 26
[86] Defence counsel argued that
when each officer discussed Ms. Currie's "truth" in
the same
context, namely murder, and urged Minde to give his side of the
story, one they had repeatedly
proposed in minimized scenarios of culpability, the implication
was clear, namely that if he did
not talk, the court would be left with only the more serious
version of the events. Aggravating
this approach was the fact that the police embarked on a very
dangerous course in proposing to
Minde that what they knew as a fabricated version of the events
would eventually be placed
before the Court. Defence counsel argued that the opportunities
provided to the accused to
consult with counsel cannot wipe out the effect of their theme
based on fabricated evidence.
The quid pro quo, according to defence, is obvious from
the evidence; Minde was being
encouraged to provide a less culpable version of the events so
as to avoid being convicted of
murder. This threat was woven into the fabric of an interrogation
replete with moral and
spiritual inducements connected to honour, family and setting
one's soul free.
VI. CONCLUSION AS TO VOLUNTARINESS
[87] In all of the circumstances, the combined effect of:
- the deceit perpetrated by the officers,
- their powerful moral and spiritual inducements,
- the minimization techniques used,
- the absence of any offer of food or refreshment for a number
of hours,
created an atmosphere in which the accused had to trade admissions
in order to extract himself
from the more serious consequences of a murder charge. Minde
having admitted to having been
drinking on the evening in question and to having memory problems,
there was a further risk
created by the conduct of the officers, that he felt obliged
to provide an explanation for the death,
whether or not the explanation was true. Although the comments
of the officers were not as
direct as found in R. v. Giroux, supra (paras.
5-10), it is noted that in Giroux there was no
fabricated evidence put to the accused. However, similar to Giroux,
the comments of police in
my view carried the same implication that the officers would
assist him to avoid being
prosecuted for murder if he told his side of the story. I am
left in a state of reasonable doubt as to
whether as a result of the conduct of the police, the accused's
incriminating admissions were
obtained through fear of prejudice or hope of advantage held
out to the accused.
[88] Accordingly, I rule that the video taped statement, apology
letter and re-enactment of
January 10th, 2002 are not admissible in the trial proper.
[89] Having regard to my conclusions on the issue of voluntariness,
I need not go on to
determine whether Minde's s. 7 Charter right to silence
was breached, it having been conceded
by defence counsel that the foundation of his s. 7 arguments
was not factually distinct from his
arguments regarding voluntariness and having regard to the more
onerous evidentiary burden
Page: 27
which applies to allegations of Charter
breaches. However, the s. 9 Charter ground is focussed
on a legally distinct issue and will therefore be addressed.
VII. THE ALLEGED VIOLATION OF S. 9 OF THE CHARTER
[90] Section 495(1) of the Criminal Code provides
that a police officer may arrest without
warrant a person who on reasonable and probable grounds he or
she believes has committed an
indictable offence. As Cory J., for the Court, stated in Storrey
v. The Queen (1990), 53 C.C.C.
(3d) 316 at 324, the Criminal Code requires that an arresting
officer must subjectively have
reasonable and probable grounds on which to base the arrest.
Those grounds must, in addition,
be justifiable from an objective point of view on the basis that
a reasonable person placed in the
position of the officer must be able to conclude that there were
indeed reasonable and probable
grounds for the arrest. Although police can continue their investigations
subsequent to an arrest,
an otherwise unlawful arrest cannot be justified on the grounds
that it was necessary in order to
further the investigation of the crime (at 326).
[91] As earlier discussed, at the beginning of the January 10th
interview, neither of these two
experienced officers believed that he had reasonable and probable
grounds to arrest Minde.
When their techniques of positive confrontation, minimization
and their deceit were not effective
to persuade Minde to remain in the interview room, the arrest
was the tool used to secure their
ability to further question him. Corporal MacLean acknowledged
that at the point of the arrest,
he had learned nothing to advance his belief that there were
reasonable and probable grounds to
arrest Minde for anything.
[92] Constable McCullum, the arresting officer, testified that
his view of the situation changed
by what had transpired in the interview before he intervened
with the arrest, which he believed,
coupled with what he knew before January 10th, gave him reasonable
and probable grounds:
1. Minde's response to being told he was a suspect was not one
of alarm, concern, or
surprise, which Const. McCullum considered to be "untypical"
even when it was pointed
out by defence counsel that Minde's demeanor throughout both
interviews was quiet and
passive and at times he elected to nod or shake his head rather
than respond verbally.
2. Of interest to Constable McCullum was Minde's comment that
he was moving out of his
residence.
However, being familiar through daily or twice daily briefings
with the history of the matter, he
would have been aware of the level of cooperation already exhibited
by Minde in the
investigation and that he was already staying with his brother
on the Montana Reserve.
3. Minde was eager to leave the interview to do band business.
Page: 28
However, this eagerness was not without
context. Constable McCullum had already heard that
Minde was concerned about making care arrangements for his daughter
and about getting to the
Band office before it closed as he had no money. Moreover, his
request to leave only arose when
he was told by Corporal MacLean that he was free to go at any
time.
4. Minde was unresponsive to questioning by Corporal MacLean
about his involvement in
the death of Ms. Currie. In particular, he was asked if he meant
to kill her or if it was an
accident, yet he responded that he would like to take care of
his band business, totally
ignoring the question. Constable McCullum viewed that question
as an opportunity for
Minde to state that he was not involved yet at no time in the
exchange with Corporal
MacLean did he deny his involvement, something, he said, which
was not typical of an
innocent person.
Reasonable and probable grounds cannot be gathered from a decision
by the detainee to exercise
his right to silence in the face of questions designed to elicit
an incriminating response. To do so
would trivialize the right to silence.
Constable McCullum viewed the following exchange as "key"
on the issue of Minde's
culpability:
Q. Did you mean for it to happen or was it an accident?
A. I don't know what to say.
However, this answer could be a recognition of the fact that
either alternative presented would
assume he had caused Ms. Currie's injuries.
5. Minde had called to change his appointment from the morning
to the afternoon of January
10, one for which he then showed up on time.
This cannot be said to advance the officer's grounds, as he did
not miss the appointment but
rather took care to contact Corporal MacLean to re-arrange it,
then showed up at the appointed
time later that same day.
[93] This is not, in my view, a situation of the officer honestly
but mistakenly believing that
there were reasonable and probable grounds. The officer had one
end in mind, namely to keep
Minde in the room so that the questioning could continue.
[94] I find, on the evidence before me, that the accused has
satisfied his onus of establishing a
breach of his s. 9 Charter rights on a balance of probabilities.
The grounds for arrest fell far
short of complying with the requirements of s. 495(1) of the
Criminal Code. The actions of the
officer in arresting Minde were not prescribed by law and accordingly,
the inquiry shifts to
whether the incriminating admissions which followed upon his
arrest should be excluded under
s.24(2) of the Charter.
VIII. S. 24(2) OF THE CHARTER
[95] In R. v. Collins
(1987), 33 C.C.C. (3d) 1, the Supreme Court of Canada
identified three
broad categories of factors bearing on this determination, namely:
(a) the effect of the evidence
on the fairness of the trial; (b) the seriousness of the Charter
violation; and (c) the effect of
exclusion on the repute of the administration of justice. In
addressing the fairness of the trial,
Lamer J. (as he then was) distinguished between real evidence
obtained in violation of the
Charter and a confession conscripted from an accused contrary
to the Charter, stating (at 19):
However, the situation is very different with respect to cases
where, after a violation of
the Charter, the accused is conscripted against himself
through a confession or other
evidence emanating from him. The use of such evidence would render
the trial unfair, for
it did not exist prior to the violation and it strikes at one
of the fundamental tenets of a
fair trial, the right against self-incrimination.
[96] I find that there is a strong link of proximity between
the breach and the obtaining of the
first statement, just minutes thereafter. I am of the view that
the use of such evidence, emanating
from the accused, would render the trial unfair. I also find
that the violation in this case was
serious. The conduct of the police was wilful and deliberate,
they having intentionally set out to
undermine Minde's desire to leave the interview, paying lip service
to their earlier offer that he
could leave at anytime, an interview during the course of which
they referred to fabricated
evidence which they represented would be introduced in court.
In these circumstances, it cannot
be said that the officers were acting in good faith. There were
no circumstances of urgency in
terms of any compelling evidence of flight, the accused himself
indicating he would return the
next day to continue the interview. In discussing the effect
of the exclusion of evidence on the
repute of the administration of justice, as noted in Broyles
v. The Queen (1992), 68 C.C.C. (3d)
308 (at 327), the charge against the accused is a very serious
one; however, the violation is also
serious and the admission of the evidence would affect the fundamental
fairness of the trial.
Accordingly, the evidence of the video taped statement, the apology
letter and the re-enactment
of January 10th are excluded under s. 24(2) of the Charter.
[97] I am indebted to each counsel for their thorough and helpful
arguments.
DATED at Wetaskiwin, Alberta this 19th day of September,
2003.
__________________________
J.C.Q.B.A.
