C.A.C. No. 123584
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. Socobasin, 1996 NSCA 201
Hallett, Freeman and Pugsley, JJ.A.
BETWEEN:
RICHARD JAMES SOCOBASIN ) Donald C. Murray
) for the Appellant
Appellant )
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- and - ) Robert E. Lutes, Q.C. and
) Peter G. MacKay
) for the Respondent
HER MAJESTY THE QUEEN )
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Respondent ) Appeal Heard:
) September 10, 1996
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) Judgment Delivered:
) October 3rd, 1996
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THE COURT: Appeal dismissed per reasons for judgment of Hallett, J.A.; Freeman and Pugsley, JJ.A. concurring.
HALLETT, J.A.:
This is an appeal from a conviction for the offence of first degree murder. The appellant was sentenced to life imprisonment without eligibility for parole for 10 years. The appellant shot and killed a young gas station attendant in the course of a planned robbery. At the time of the shooting the appellant was a few months short of his eighteenth birthday. The appellant gave a statement to the police admitting he shot the attendant but asserting that the gun accidentally discharged. Given the verdict, the jury did not find the evidence of the appellant raised a reasonable doubt as to the appellant's intention to kill and that the killing was planned and deliberate. The appeal raises three issues.
The first issue is that counsel for the appellant submits there should be a further review of the decision of the Youth Court Judge to transfer the appellant, a young offender, to ordinary court as it is submitted that a critical witness, G.F., committed perjury in his testimony at the Transfer Hearing. G.F. was a friend of the appellant and present at the scene of the robbery and murder.
The submission is set out in the appellant's factum as follows:
"The perjury at the Transfer Hearing had the effect, in part, of concealing the facts that G.F. himself had entered the gas station with a second gun, and that at the time of the shooting there were in fact two guns in the gas station. It should also be considered in relation to the significance of this issue that G.F. was and remains the only witness to testify at the Transfer Hearing, Preliminary Inquiry or Trial as to the elements of planning and deliberation for first degree murder on the part of Socobasin, and whether Socobasin or David MacDonald fired the fatal shots (G.F. has identified both at different times: Case on Appeal, Part II, Book 3 of 6, identifying David MacDonald as the shooter at pp. 811-812, and 817-818). G.F. was also originally charged with this killing, a young person against whom the Crown had originally also sought a transfer but accepted pleas under the Young Offenders Act prior to Socobasin's transfer hearing. The plea arrangement appears to have proceeded on the now false basis of a G.F. story that G.F. had only been a passive observer of a robbery in which a firearm had been used."
Counsel further submits:
. "The Transfer Hearing, in light of the Appellant's age at the time of the offence, was a necessary step in proceedings against him in order to give the ordinary courts jurisdiction to conduct his trial: Young Offenders Act, R.S.C. 1985, c. Y-1, s. 16, as amended; e.g., R. v. S.H.M. (1989), 50 C.C.C. (3d) 503, at pp. 540-541 (S.C.C.). Subsections 16(1.1), 16(2), and 16(3) of the Act set out the relevant considerations in making a decision on transfer, including "the seriousness of the alleged offence and the circumstances in which it was allegedly committed": s. 16(2)(a), emphasis added. Without that underpinning, supplied in part by G.F.'s evidence, the transfer decision and subsequent jury trial in Supreme Court would be a nullity - the Supreme Court would simply not have had jurisdiction to try Socobasin.
It is therefore respectfully submitted that because there was perjury in critical evidence against Socobasin at the Transfer Hearing, the finding of the Transfer Hearing Judge ought to be set aside. By doing so, this Honourable Court would necessarily set aside the verdicts of guilt in the Supreme Court, regardless of the findings on the other issues. Because of the wrongdoing of G.F., the whole of the process against Socobasin to date has been for naught. This is frustrating and wasteful of legal resources. However, the cost of the self-interested conniving and perfidious behaviour of G.F. must be laid at the feet of G.F., the inducements given to him to testify, and the repeated willingness of the Crown to avail themselves of whatever G.F. wished to say in adjustment and alteration of his recountings about the events of August 7, 1994 (Case on Appeal, Part II, Book 3 of 6, pp. 847, 851-852; Part III, pp. 290-291). The responsibility for this frustration of the criminal justice system should not be allowed to remain resting upon the back or shoulders of Mr. Socobasin."
The decision of the Youth Court Judge to transfer the proceedings to adult court was appealed to this Court for review. The appeal was dismissed (R. v. R.J.S. (1995), 141 N.S.R. (2d) 386).
There is no provision in the Young Offenders Act, R.S.C. 1985, c. Y-1 for further review by this Court; that is sufficient to dispose of the first issue. However, apart from that, the issue is without merit.
Counsel for the appellant, when questioned during oral argument, was unable to advise the Court what evidence G.F. gave at the Transfer Hearing which constituted perjury.
G.F. was a member of a gang of four that committed a series of break and enters in the months preceding the robbery. Other members were David MacDonald - an adult, the appellant and C.G.
G.F.'s evidence at the Transfer Hearing was that they had planned a robbery. They decided on an Ultramar Service Station near Pictou. G.F. testified that, just prior to pulling into the station in the truck they were using, David MacDonald, the leader of the gang, said to the appellant "It's time" and handed him the gun. MacDonald then said to the appellant "No witnesses, no crime". G.F. testified that they had often discussed this concept among themselves.
G.F. testified that the appellant shot the attendant at point blank range in the face and then, while the attendant was on the floor, shot him again in the face. Other evidence confirmed that the attendant was shot twice in the face.
After the shooting MacDonald and the appellant jumped into the truck and exchanged high fives.
G.F. had given a number of statements to the police which, at trial, he admitted on cross-examination were untrue. However, his evidence at the Transfer Hearing was substantially the same as his evidence at trial. He testified that his statements to the police were attempts to protect his "little cousin", the appellant. Therefore, there was no perjured testimony at the Transfer Hearing that was critical to the Youth Court Judge's decision to transfer the appellant to ordinary court.
Furthermore, leaving aside the evidence of G.F. at the Transfer Hearing, there was ample evidence to warrant the Youth Court Judge transferring the proceedings against the appellant to ordinary court. The statement of the appellant given to the police, which was entered at the Transfer Hearing, shows a planned robbery of a service station and that the appellant had a gun in his possession when he entered the station.
In addition to the evidence of G.F. that the murder was planned as there were to be no witnesses to the robbery, C.G., one of the gang, testified at the Transfer Hearing that on different occasions when they were doing break and enters in the period before the robbery, David MacDonald had asked the appellant if he was "down for a 187". C.G. testified that this meant that the appellant was being asked if he would agree to a murder. C.G. did not testify as to what the appellant's response was to David MacDonald's inquiry as to whether he was "down for a 187" prior to the robbery actually taking place. That summer the gang had watched a rental movie entitled "Menace to Society" many times. The movie was antisocial and featured murders. In the movie "a 187" meant a murder.
C.G. testified that the appellant and MacDonald wore guns like they wore their underwear. I would infer he meant that they regularly carried a gun.
C.G. also testified that when driving towards Cape Breton in the truck just prior to the robbery he was in the back of the truck. He slid open the window to the cab area and asked what was going on. He was told by the appellant that they were going to do a robbery.
In addition, the witness C.G. testified at the Transfer Hearing that the appellant, along with David MacDonald, entered the service station. The appellant had a gun. After the shots were heard the appellant and David MacDonald ran out of the service station. The appellant had a gun in his hand. Then the four left in a truck. By this time C.G. was in the cab area of the truck. He testified that the appellant and David MacDonald were happy, excited, and exchanged high fives with each other. He testified that, after the shooting, while in the cab with the appellant and MacDonald, he heard the appellant say that he was "down for a 187". C.G. concluded from the conversation in the truck, after the robbery, that the appellant, not David MacDonald, had shot the attendant. C.G. also testified that in the truck after the shooting David MacDonald congratulated the appellant as the appellant did not hesitate to shoot.
Therefore, the evidence of G.F. was not the only evidence of a planned robbery in which a gun might be used by the appellant.
The statement of the appellant to the R.C.M.P., which was admitted into evidence at the Transfer Hearing, states that only the appellant and David MacDonald went into the service station; G.F. stayed outside. The appellant's statement also shows that the attendant was shot twice in the face at point blank range after the appellant and David MacDonald had demanded that the attendant turn over the money in the station.
After the robbery and the shooting the appellant's nickname in the gang was changed to "Point Blank".
I agree with counsel for the respondent that the fact that the appellant was convicted of first degree murder supports the decision of the Youth Court Judge to make the transfer.
The basis upon which a plea was accepted by the Crown from G.F. was irrelevant to the decision of the Youth Court Judge to transfer the appellant to ordinary court. However, I would note that G.F.'s testimony at the Transfer Hearing and the trial was consistent with the appellant's statements to the police that only the appellant and David MacDonald entered the station. Contrary to the submissions of counsel for the appellant, there was no evidence at either the Transfer Hearing or the trial that G.F. had entered the station with a gun.
The seriousness of a murder charge, the circumstances giving rise to the offence, as evidenced by the appellant's statement to the R.C.M.P., G.F.'s and C.G.'s evidence, along with other evidence and the character of the appellant as a young offender were considered by the Youth Court Judge.
The Youth Court Judge applied the proper tests as mandated by the Young Offenders Act to the facts; the evidence clearly warranted the transfer of this murder charge to ordinary court. There is no proof that G.F. committed perjury at the Transfer Hearing, in fact, other testimony corroborates his testimony. The fact that G.F. gave statements to the police that provided different versions of his role in the robbery did not result in a miscarriage of justice that would warrant this Court allowing the appellant's appeal from conviction even if there was a statutory provision that authorized this Court to again review on appeal the decision of the Youth Court Judge to order the transfer to ordinary court.
The Jury Issue
The second issue relates to a decision by the trial judge to discharge a juror pursuant to s. 644 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. Section 644 provides:
644. (1) Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.
(2) Where in the course of a trial a member of the jury dies or is discharged pursuant to subsection (1), the jury shall, unless the judge otherwise directs and if the number of jurors is not reduced below ten, be deemed to remain properly constituted for all purposes of the trial and the trial shall proceed and a verdict may be given accordingly."
The transcript of the trial discloses that after 12 jurors had been sworn, the trial judge discharged the panel; he stated:
".....Ladies and gentlemen of the jury panel, I thank you for your attendance and you're now free to go. Thank you."
Following this statement to the panel, Mr. MacKay, the Crown prosecutor stated:
"My Lord, I think one of the jurors has a question."
The juror was Ms. C. MacGregor, Juror No. 176. She had been sworn in as the 9th juror. The transcript then shows the following:
"MS. MACGREGOR
I just realized that the sister of the brother that was murdered . . .
THE COURT
Just a minute. Just a minute. I think you -- I think we'll deal with whatever your concern is without the presence of the other jurors, frankly. Do you agree, Mr. Murray?
MR. MURRAY
Yes, without the presence of the other 11. Yes.
THE COURT
Well, what I'm going to do first is put the accused in the charge of the jury, because the trial doesn't, in my view, commence until that happens. Just have a seat and I'll come back to you." {Emphasis added}
The Clerk then read to the jury the charge against the appellant and put the appellant in their charge to determine if the appellant was guilty or not guilty.
The trial judge then explained to the jury the need for the other 11 jurors to retire to the jury room while he heard Ms. MacGregor's concerns. He advised the jury of the need and purpose of selecting a foreperson but that they were to hold off doing so until he dealt with the MacGregor matter.
The record shows that the jury retired and the trial judge then asked counsel:
"THE COURT
.... Do either the Crown or defence have any objection to the procedure I've adopted?"
Defence counsel, Mr. Murray, and Mr. MacKay for the Crown responded as follows:
MR. MURRAY
No, My Lord. I think it's appropriate that the jury hold off selecting a foreperson until, if necessary, this juror is replaced or whatever happens is settled. {Emphasis added}
MR. MACKAY
No difficulty with the process, My Lord."
Ms. MacGregor was then sworn. The transcript discloses the following exchange:
"THE COURT
There's something you wish to advise the Court?
MS. MACGREGOR
Yes. I didn't realize that the sister of the brother works with my cousin at the store.
THE COURT
The sister of the brother? Who are you talking about?
MS. MACGREGOR
Of the murder -- of the one that was murdered.
THE COURT
You're talking about the victim?
MS. MACGREGOR
Fraser, yes.
THE COURT
Say it again to me?
MS. MACGREGOR
My cousin is the manager of the store where the sister works.
THE COURT
Mr. Murray, Mr. MacKay, any questions? I'm inclined to think it's a little too close to home, to in the final analysis -- but I'm open to -- I don't like to lose a juror at this stage. We can still carry on.
MR. MURRAY
I have no questions for the juror and for the record, would appreciate -- if she's brought it to our attention, it's obviously a matter of concern for her, and that wouldn't go away. So the appropriate course, I submit, at this point, since we haven't commenced the calling of the evidence on the main trial, is to excuse this juror and replace the juror with a 12th juror, and we can then proceed. {Emphasis added}
THE COURT
Well, my view is that we have already commenced the trial once the accused has been placed in the charge of the jury. Because otherwise, I'd have to declare a mistrial and start all over again because the panel is gone, Mr. Murray.
MR. MURRAY
The panel was barely out the door, My Lord.
THE COURT
Do you disagree with me that the trial has started?
MR. MURRAY
The matter has been brought to the Court's attention before Your Lordship proceeded to put Mr. Socobasin in the charge of the jury.
THE COURT
She brought to our attention that there was -- because I think the proper motion is really then for a mistrial and select a new jury. Because my feeling is that the trial is either commenced or it isn't. And obviously, I've got no jury panel left, Mr. Murray. So we would have to bring in a new panel of jurors." {Emphasis added}
After considering submissions from counsel the trial judge discharged Ms. MacGregor ruling that the trial had commenced as the appellant had been put in the charge of the jury.
The record also discloses that the trial judge, prior to proceeding to select a jury for the appellant's trial, had advised members of the jury panel to come forward if they sought to be excused. A number of persons came forward, including Ms. MacGregor. The record discloses the following exchange between the trial judge and Ms. MacGregor:
"THE SHERIFF
C. MACGREGOR (SWORN)
Yes. My brother-in-law (inaudible) for the RCMP. And also, I have no transportation to the courthouse. My husband (inaudible) the car and I have two small boys at home.
THE COURT
I can't exempt people for those kinds of difficulties.
C. MACGREGOR
What about the RCMP.....
THE COURT
Your brother-in-law is an RCMP -- he has nothing to do with this case?
C. MACGREGOR
He's a (dispatcher?) there.
THE COURT
Is he a witness in this case? Is he involved in it in any way?
C. MACGREGOR
I don't know. We haven't really talked (inaudible) Truro.
THE COURT
Her brother-in-law is an RCMP officer but as far as I can gather, there's no involvement in the case at all and that's not sufficient reason to -- denied. Thank you for coming forward."
After dealing with general exemptions the appellant was arraigned and pleaded not guilty. The trial judge then stated to the jury panel:
".....Ladies and gentlemen of the jury panel, Richard James Socobasin has been arraigned. If there are any amongst you that are familiar with Mr. Socobasin, have had any relationship with him or members of his family, if you're an acquaintance or a friend or have had any business dealings or anything that would in the slightest way impair your ability to act as a totally unbiased impartial juror, would you please come forward and disclose what, if any, concern you have in that regard."
After some discussion between the trial judge and counsel the trial judge repeated this instruction and then directed the Crown to read out the names of 34 Crown witnesses. The trial judge had the Crown repeat these names. Included in the list of witnesses was a Dr. Spencer Sparkley. The trial judge then addressed the jury as follows:
".....Ladies and gentlemen of the jury panel, as indicated, I'm now asking if any of you are familiar with any of the potential witnesses that may be called on the part of the Crown. If you're a neighbour, friend, acquaintance, related to them, had any association with them of any nature that could possibly impair your ability as an impartial juror, could you please come forward and be sworn and I'll hear what you have to say."
Ms. MacGregor, among others, came forward and sought to be excused. The record discloses the following exchange between Ms. MacGregor and the Court:
"C. MACGREGOR
I know Dr. Sparkley [sic]. He attends our church and my husband also works at the hospital.
THE COURT
I don't see that that presents a problem. You've had no discussion with the doctor about this matter."
After some questioning by the Court Ms. MacGregor agreed that this concern she had would not prevent her from rendering an unbiased verdict. The trial judge ruled that he would retain her on the panel.
As the record discloses, the trial judge stated that he would put the accused in the charge of the jury before dealing with Ms. MacGregor's concerns. There was no objection to this procedure by counsel for the appellant. However, in view of counsel's subsequent comments to the trial judge, I would infer that counsel was relying on the statements of Dickson C.J. in R. v. Basarabas (1982), 2 C.C.C. (3d) 257 (S.C.C.) and R. v. Barrow (1987), 38 C.C.C. (3d) 193 (S.C.C.) that every effort should be made to replace a juror if evidence had not been called.
The Law - Re: Section 644 of the Criminal Code
Courts have been required to consider when a trial commences on quite a number of occasions. I will not review the older cases but start with the decision of the Supreme Court of Canada in R. v. Basarabas (supra). In that case the accused had not been put in charge of the jury when one of the jurors indicated that he knew the brother of the deceased. The Supreme Court of Canada held that the trial judge erred in discharging the juror pursuant to s. 573(1) [now s. 644(1)] and erred in continuing the trial with 11 jurors because the accused had not yet been given in charge of the jury. In Basarabas Dickson J. (as he then was), writing for the Court, reviewed a number of cases dealing with the question at what point a trial commences. He reached the following conclusions:
"The question of fixing the time of the commencement of a jury trial has been the subject of some difficulty in the past. It seems possible, however, on the authorities and on principle to reach the following conclusions.
First, the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied. Thus, the word 'trial' in s. 577(1) which assures the accused the right to be present 'during the whole of his trial' will be liberally construed to afford the accused the right to be present during the selection of the jury. In like manner, the word 'trial' in s. 566 which denies the prosecutor the right to direct a juror to stand by on the trial of an indictment for the publication of a defamatory libel will be interpreted to embrace the proceedings preceding the empanelling of the jury. In other sections 'trial' may have a different connotation depending upon the section of the Code being applied.
Secondly, subject to s. 573 an accused in a criminal jury trial is entitled to be tried by 12 jurors (ss. 560(5) and 572(1) of the Code). He is entitled to the unanimous verdict of the 12 jurors unless and until 'in the course of a trial', that is to say, after it has commenced, the judge is satisfied that a juror should not, because of illness, or other reasonable cause, continue to act.
Thirdly, as counsel for the appellant, Basarabas submits, s. 573(2) of the Criminal Code is a provision that provides a practical cure for the difficulties inherent in having to discharge a jury after it has commenced to hear the evidence and, in so far as this section deprives the accused of his common law right to the unanimous verdict of 12 persons, it should be narrowly construed; there is no good reason for denying an accused a full jury where no evidence has been led. An accused should not be lightly deprived of his or her right to be tried by a jury of 12 persons. It would be undesirable to start a trial with less than that number. As counsel submitted, s. 573 of the Code provides a mechanism whereby jurors can be replaced simply and easily to maintain a full jury as late in the proceedings as is consistent with fairness to the parties. To advance in time the stage when the trial is forced to proceed with one juror missing, beyond that required by common sense and the plain language of the Code, is to increase the likelihood, in a lengthy trial, should other jurors fall ill, that mistrials will have to be declared because the requisite number of jurors is lacking.
Fourthly, the words 'continue to act' in s. 573(1) suggest that the jury has been acting, qua jury before the discharge of a juror pursuant to s. 573. Until the accused is placed in the jury's charge, and the jury is advised of the charge and the plea and of their duty to inquire whether the accused is guilty or not guilty of the offence charged, it cannot be said that the jury is acting qua jury.
Finally, the weight of authority supports the position of the accused that a jury trial commences when the accused has been placed in charge of the jury. Canadian courts have frequently cited the judgment of Ritchie C.J. in support of a narrow interpretation of the word 'trial' in respect of a jury trial.
It is for these reasons the court concluded that the Court of Appeal of British Columbia had erred in its interpretation of s. 573(1) and (2) of the Criminal Code and that a new trial should be ordered."
In 1985 in R. v. Plato 40 Alta. L.R. (2d) 1200, the Alberta Court of Appeal applied the decision in Basarabas that the trial commenced when the accused was put in charge of the jury.
In 1987 the Supreme Court of Canada in R. v. Barrow 38 C.C.C. (3d) 193 again had an opportunity to consider an accused's right to a jury trial. Dickson C.J., writing for the majority, reviewed the decision in Basarabas. After summarizing what I have quoted from that decision, and after making reference to the determination by the Court that the time when a trial commences will vary depending on the purpose of the section of the Code being interpreted, he stated at p. 201:
"The reason for varying starting points is that different sections of the Code protect different interests. Section 573 allows the judge to remove a juror who for some reason is unable to continue, but the removal of a juror is a very serious matter. An accused has the right to be tried by 12 jurors (ss. 560(5) and 572(1)) and every effort must be made to avoid a jury of less than 12 members. If the jury has heard no evidence, as in Basarabas, then a juror can be replaced and s. 573 should not be used. 'Trial' there refers to the heart of the trial, the presentation of evidence before the trier of fact. Section 577, however, protects different interests and in my opinion should be given an expansive reading. The words 'whole of his trial' mean just that, the whole of the trial."
In Basarabas the jury panel was still present when the ruling to proceed with 11 jurors was made and the accused had not been put in charge of the jury. In 1987 this Court decided R. v. Richardson (1987), 39 C.C.C. (3d) 262. Macdonald J.A., writing for the majority, held that once an accused is placed in charge of the jury the provisions of s. 573 of the Criminal Code applied. Macdonald J.A. concluded that having discharged the 12th juror, the only choice open to the trial judge was to proceed with an 11 member jury or to adjourn the proceedings to another day. There had already been a significant delay in the case and a further delay was to be avoided if possible; it could not be said that the trial judge erred in the exercise of his discretion in continuing the trial. Justice Jones dissented; he concluded that as no evidence had been called up to this point, there was no valid reason for proceeding with the trial with only 11 jurors. In the course of his reasons, Justice Macdonald referred to the statements made by Dickson J. in Basarabas that an accused should not be lightly deprived of his or her right to be tried by a jury of 12 persons. Justice Macdonald then stated at p. 266:
"As a general rule, an appellate court will not interfere with the exercise of a judge's discretion to discharge a juror since, having had the benefit of statements of counsel and having heard the evidence with the full appreciation of the atmosphere in which the trial takes place, he is clearly best able to determine the effect of events on the jury - Canadian Criminal Procedure by the Honourable Roger E. Salhany, 4th ed. (1984), p. 286. In Emkeit v. The Queen, supra, Mr. Justice Ritchie said (p. 6):
In my opinion the administration of justice in our Courts would be gravely hampered if it were not recognized that a trial Judge has a wide discretion as to the manner in which a trial is to be conducted, and it has long been accepted that a trial Judge's ruling on the question of whether or not to discharge the jury is one which a Court of Appeal should approach with great caution.
It is true that Chief Justice Dickson did express in Basarabas the opinion that 'there is no good reason for denying an accused a full jury where no evidence has been led'. I do not believe, however, that he intended to restrict the operation of s. 573 to those cases only in which evidence had been introduced. Such restrictive interpretation is contrary to the plain meaning of the section - namely, that a trial judge has a discretion exercisable during the trial to discharge up to two jurors and proceed with a reduced panel. Here Mr. Justice MacDonald had ample reason to discharge Mr. Uloth. The discharge occurred during the course of the trial. The issue then is, did the learned trial judge commit reversible error in the exercise of the discretion given him by s. 573(1) of the Code."
Justice Macdonald, for the majority, concluded that the trial judge did not err in the circumstances.
In R. v. Mohamed (1991), 64 C.C.C. (3d) 1 the accused had not been put in charge of the jury. Wood J.A., writing for the British Columbia Court of Appeal, concluded that the juror discharged could be replaced as the accused had not been put in charge of the jury and that in doing so the trial judge was required to observe any mandatory provisions found in Part XX of the Criminal Code.
In 1992 this Court in R. v. Beaton (1992), 115 N.S.R. (2d) 40 applied the majority decision in R. v. Richardson (supra).
In 1995 the British Columbia Court of Appeal in R. v. Lo (1995), 62 B.C.S.C. 62 (B.C.C.A.) had occasion to consider a case involving the replacement of a juror. In that case the accused had been put in charge of the jury; the trial was then adjourned for several days. The trial reconvened; one of the jurors that had been sworn did not appear. A replacement juror was selected from the balance of the panel. Counsel for the accused at the trial agreed with this procedure. The accused was convicted. The British Columbia Court of Appeal dismissed the appeal, concluding that what was done was an irregularity consented to by the accused in order to have the assurance of 12 jurors and to secure an extra challenge.
In the course of his reasons Lambert J.A., writing for the Court, reviewed both the decisions of the Supreme Court of Canada in Basarabas and in Barrow and reached the following conclusion at paragraphs 17-18:
"In my opinion those cases support the proposition that the accused is entitled to be tried by a jury consisting of twelve members. He or she should not be lightly deprived of that right. Section 644, which permits a reduction in the number of jurors 'in the course of the trial' should be confined to cases where the very heart of the trial has begun, namely the presentation of evidence before the trier of fact. Up until that point anything which has been done can either be redone in the same trial or redone in a new trial following a declaration of a mistrial, depending on the circumstances, one of which may be whether the accused consents to a matter being redone in the same trial.
To return to Basarabas v. The Queen, it is noteworthy that the court decided only that the trial had not begun for the purposes of s. 644 before the accused was put in the charge of the jury. It is no part of the 'ratio decidendi' of that case that the trial must be regarded as having begun for the purposes of s. 644 as soon as the accused is put in charge of the jury. Any such conclusion is contrary to the passages to which I have referred in both Basarabas v. The Queen and The Queen v. Barrow."
Lambert J.A. went on to conclude that in some cases the right to be tried by 12 jurors can only be accorded the accused by declaring a mistrial and in other cases, particularly when the original panel is still available, and even more so when the accused consents, it may be possible to select a new juror to replace a missing juror. He approved of the dissent of Justice Jones in the Richardson case and concluded that "s. 644 cannot properly be invoked until after the moment when the first evidence has been led. The course of the trial for the purpose of that section starts at that moment." At paragraph 22 he stated:
"It follows that I would not accede to the argument that s. 644 should have been applied in this case and that therefore there was no jurisdiction in the trial judge to propose that a new juror be selected, and there was no jurisdiction in the court, consisting of Mr. Justice Blair and the twelve jurors so selected, to try Mr. Lo. I would reject that ground of appeal."
In 1996 the Ontario Court of Appeal in R. v. Varcoe (1996), 104 C.C.C. (3d) 449 had occasion to consider these issues. In that case the accused had been put in charge of the jury and opening addresses had been made. The trial judge dismissed one juror and proceeded with 11. There was no objection by counsel. Laskin J.A., writing for the Court, stated at p. 457:
"An accused who is tried by a jury has a fundamental right to be tried by a jury of 12 impartial jurors. Parliament, however, has qualified this right by giving the trial judge discretion to reduce the panel to as few as 10 and to continue the trial with the reduced panel provided the conditions in s. 644 have been met. In this case, the trial judge had reasonable cause to discharge the juror. The issue raised by Mr. Greenspan concerns the timing of the discharge. The juror was discharged after the accused had been placed in the charge of the jury, the trial judge had given his opening instructions and the Crown had made his opening address, but before any evidence had been called. The question is whether the trial had commenced or the purpose of s. 644. In my opinion, it had commenced."
Justice Laskin reviewed the decision of the Supreme Court of Canada in Basarabas and its decision in Barrow and, in particular, the comments upon which counsel for the appellant relies in the appeal before us. Justice Laskin concluded at p. 460:
I read Basarabas to stand for the proposition that a trial commences for the purpose of s. 644 when the accused has been put in the charge of the jury. The textbook writers read it the same way: see Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed., vol. 1 (Aurora, Ont.: Canada Law Book Inc.), &17.1050 (December 1995), and Salhany, Canadian Criminal Procedure, 6 ed. (Aurora, Ont.: Canada Law Book Inc.), at pp. 6-92 to 6-93 (February 1995). Dickson J.'s fourth and fifth conclusions in Basarabas, which I reproduced earlier, explicitly state that the trial commences for the purpose of s. 644 when the accused has been put in the charge of the jury. That was the position advanced by the appellant and accepted by the court.
Moreover, the authorities Dickson J. relies on in Basarabas support this reading of the case. He quotes with approval Ritchie C.J.'s statement in Morin v. The Queen (1890), 18 S.C.R. 407 at p. 415: '. . . when there is a court duly constituted the prisoner being present and given in charge of the jury his trial in my opinion commences. . .'; and Ritchie J.'s statement in R. v. Dennis (1960), 125 C.C.C. 321 at p. 326, [1960] S.C.R. 286, 32 C.R. 210: ' . . . the trial proper does not start until the accused is given in charge to the jury . . . and the adoption of this more restricted meaning of the word 'trial' has been widely accepted in our own Courts for many years'; and he refers with approval to Emkeit and Martin J.A.'s observation in Hatton. On my reading of Basarabas, Varcoe's trial had commenced when the juror was discharged.
Moreover, when the juror was discharged not only had Varcoe been put in the charge of the jury but two additional steps had been taken: the trial judge had given his opening instructions and the Crown had made his opening address. Logic suggests that once these steps are taken the trial has commenced even though no evidence has been led. The jurors were acting as a jury. One way to test this proposition is to ask what would happen if the discharged juror had to be replaced. The trial judge would have to repeat his opening instructions and the Crown would be entitled to reopen to the jury. If that is so, it follows that Varcoe's trial had commenced when the juror was discharged.
The trial judge could have declared a mistrial (though neither counsel asked him to do so). But he did not err in law in discharging the juror and proceeding with a jury of 11. I would therefore not give effect to this ground of appeal.
I would dismiss the appeal."
There is no reference in the Varcoe decision to the decision of the British Columbia Court of Appeal in Lo.
In the Lo decision there was only one reference to the opinion of Woods J.A. in R. v. Mohamed and no suggestion made by Lambert J.A., writing for the Court in Lo, that Woods J.A. was in error.
Disposition of this Ground of Appeal
Counsel for the appellant essentially relies on the decision of the Supreme Court of Canada in R. v. Barrow (supra) and the statement of Dickson C.J. that:
"...every effort must be made to avoid a jury of less than 12 members. If the jury has heard no evidence as in Basarabas, than a juror can be replaced and s. 573 should not be used. 'Trial' there refers to the heart of the trial, the presentation of evidence before the trier of fact."
This comment was made in the context of an appeal from a trial judge's method of dealing with claims to be exempt from jury service; it did not involve the exercise of a trial judge's discretion to discharge a juror under s. 644 of the Code. What was at issue in Barrow was the trial judge's questioning of prospective jurors pursuant to s. 632 of the Code in a manner that the accused could not hear what was being discussed between the trial judge and the juror seeking exemption while determining, prior to the commencement of the trial, if he should exempt such jurors from service on the panel. The Supreme Court of Canada held this violated the accused's right to be present during the whole of his trial.
In the appeal we have under consideration the panel of jurors had been excused after the 12 jurors had been sworn and before Ms. MacGregor voiced her concern that her cousin was the manager of a store where the victim's sister worked. The appellant's trial was the last trial of that term of the Court at Pictou County. At this point in time there was no panel of jurors from which to select another juror; the panel had ceased to exist. It can be inferred that the panel would have left the court room and had probably dispersed by the time Ms. MacGregor's specific concern came to the attention of the trial judge. In my opinion it would be completely unreasonable to expect the trial judge to advise the Sheriff's officers to run out to the parking lot or wherever and try to round up members of the panel. In fact, I question whether, under the circumstances, that panel members could be compelled to return. Had the panel not been excused, a proper exercise of discretion in keeping with the comments of Dickson C.J. in Basarabas and Barrow might have been to select another juror from the panel even though the appellant had been placed in the jury's charge.
During the discussion between counsel and the Court dealing with the problem that confronted the trial judge, the appellant's counsel had submitted to the trial judge that he exercise his authority to summons talesmen.
Section 642(1) of the Code provides:
"642. (1) Where a full jury cannot be provided notwithstanding that the relevant provisions of this Part have been complied with, the court may, at the request of the prosecutor, order the sheriff or other proper officer forthwith to summon as many persons, whether qualified jurors or not, as the court directs for the purpose of providing a full jury."
In my opinion the trial judge could not avail himself of the provisions of this section as the panel that had been summoned for the trial had not been exhausted through the jury selection process that is provided for in the Code but rather had been discharged by the trial judge after 12 jurors had been sworn.
Counsel for the appellant did not object to the trial judge putting the appellant in the charge of the jury prior to dealing with whatever concerns Ms. MacGregor had. While, in view of Dickson C.J.'s opinion expressed in Barrow it is preferable to replace a juror if no evidence has been called, it is not an absolute requirement. In the circumstances which confronted the trial judge and to which counsel for the appellant took no objection the appellant had been placed in the charge of the jury before the trial judge intended to deal with whatever concerns Ms. MacGregor may have had. Ms. MacGregor's previously expressed concerns when she sought on two occasions to be excused from service, were insubstantial. There was no reason for the trial judge to infer that Ms. MacGregor's attempt to attract his attention was rooted in a serious concern that she could not be impartial.
Ms. MacGregor had been sworn in after having been apprised by the Crown prosecutor of the name of the accused, the victim and the witnesses for the Crown.
The trial judge was not asked by the appellant's counsel to declare a mistrial.
In summary, the weight of the case law supports the trial judge's ruling that the trial had commenced upon the accused being put in the charge of the jury. (R. v. Basarabas (supra); R. v. Plato (1985), 40 Alta L.R. (2d) 200 (Alta. C.A.); R. v. Richardson (1987), 39 C.C.C. (3d) 262 (N.S.C.A.); R. v. Beaton (1992), 115 N.S.R. (2d) 40 (N.S.C.A.); R. v. Mohammed (1991), 64 C.C.C. (3d) 1 (B.C.C.A.); and R. v. Varcoe (1996), 104 C.C.C. (3d) 449 (Ont. C.A.)).
The plain language of s. 644 authorized the trial judge to discharge Ms. MacGregor and proceed with 11 jurors. If further justification for the trial judge's decision is needed it can be found in the provisions of s. 643(1) which states that the 12 jurors whose names are drawn and who are sworn in accordance with the Code shall be the jury to try the issues of the Indictment. Twelve jurors had been sworn including Ms. MacGregor.
Section 644 provides a mechanism for the discharge of a juror in the course of a trial. When Dickson C.J. stated that every effort ought to be made to replace a juror who is discharged before the calling of evidence, he obviously meant every reasonable effort. In the situation that confronted the trial judge in the appeal we have under consideration: (i) he had no reason to suspect Ms. MacGregor was again seeking to be excused or that, if that occurred to him, that her reasons would be any more substantial than those already advanced by her on two prior occasions; (ii) he had already discharged the jury panel; (iii) had he opted to apply the talesman provisions, no doubt he would have been subject to appeal on the basis that he was not authorized to do so as the panel had not been exhausted; (iv) the appellant had been put in charge of the jury without objection from counsel; and, (v) the weight of the case authority that he reviewed supports the view that a trial commences when the accused has been put in charge of the jury; Basarabas (supra) is directly on point.
Considering the situation facing the trial judge, he acted reasonably and this Court ought not to interfere with his ruling on the problem that confronted him. An accused has a right to be tried by 12 jurors but Parliament has provided a mechanism that during the course of the trial a trial judge may discharge a juror. The plain meaning of s. 644 authorized the trial judge to act as he did in these circumstances. I would dismiss this ground of appeal.
The Third Issue - the Appellant's Statement to the Police
The third issue relates to the failure of the Crown to call as witnesses, on the voir dire to determine the voluntariness of the appellant's statement, certain persons in authority in the United States of America which persons were in contact with the appellant over a six day period while he was either in custody in a U.S. jail, in court in the U.S. or being transported between the court and jail prior to being handed over to Canadian authorities. In his ruling at the conclusion of the voir dire, the trial judge stated that "all the persons in authority that were directly or indirectly connected with this statement" were called by the Crown.
The appellant asserts that the Crown failed to comply with the letter or spirit of the rule enunciated by this Court in R. v. Hatfield (1984), 62 N.S.R. (2d) 151 and restated in R. v. G.A.J. (1993), 120 N.S.R. (2d) 432 (N.S.C.A.).
In Hatfield it was stated that "the ordinary rule regarding all persons in authority who have contact with the accused person while in custody prior to the taking of his statement must be called.
In the subsequent decision in G.A.J. this Court recognized that this rule is not absolute and excluded from the duty of the Crown respecting the calling of witnesses on the issue, "a person who simply receives and passes the fact of a telephone call unless that person had evidence that bears upon the voluntariness of the statement of the appellant or his understanding of or the exercise of his constitutional right".
The question boils down to this: was the Crown obliged to call all U.S police, sheriff's officers and corrections officers that had been in contact with the appellant while he was in the United States and prior to being delivered to the Canadian authorities?
I agree with the views expressed by the Manitoba Court of Appeal in R. v. Garfield (1974), 21 C.C.C. (2d) 449 where the court stated at p. 457:
"The appellant's position, as it seems to me, is that the prosecution is obliged to call, or to tender, every witness who had anything to do with an accused who makes a confession, from the moment of his first contact with the police until the statement has been given. In my opinion, the proposition, stated in those terms, is too broad."
(For a similar expression of opinions see also R. v. Settee (1974), 22 C.C.C. (2d) 193, pp. 206-207 (Sask. C.A.)).
I also agree with the views expressed by Borins C.C.J. in R. v. Dinardo (1981), 61 C.C.C. (2d) 52 where he stated that if a person in authority is sufficiently remote from the taking of statements, it is not necessary that that person testify upon the voir dire as to the voluntariness of the statement.
It is not an absolute rule that every person in authority irrespective of the degree of contact with an accused need be called on a voir dire. Each case turns on its own facts. Only persons who have evidence that bears upon the voluntariness of the statement of the appellant need to be called.
Counsel for the appellant submits that the decision of the trial judge that all persons directly and indirectly connected with the statement were called was based on an absence of evidence as there is no evidence as to who may have been in contact with the appellant while he was housed in different jails in the State of Maine during the period of September 8th to September 15th. The evidence shows that Corrections Officers in these institutions were not called as witnesses on the voir dire nor was evidence tendered to explain why they were not called.
The issue before the trial judge on the voir dire was to be satisfied beyond a reasonable doubt that the statement made by the appellant to the RCMP was voluntary within the meaning of the rule established in Ibraham v. The King [1914] A.C. 599 where the Court stated:
"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."
This statement of the rule has been consistently approved and adopted by Canadian courts.
The trial judge must look at the circumstances and determine whether the Crown called as a witness on the voir dire every person in authority likely to have been in a position to influence the giving of the statement by the accused and, if not, was that person's absence from testifying explained satisfactorily.
The circumstances of this case were that the appellant was a resident in the State of Maine. The Government of Canada asked that he be extradited to Canada. Persons in authority in the U.S. had no role to play in contact with the appellant other than to arrest him, keep him in detention pending the disposition on the Extradition Hearing, transport him to and from court and, if required by the issuance of an extradition order, transport him to the Canadian border. Such persons in authority would have no reason to be either investigating the circumstances of the offence alleged against the appellant or attempting to obtain a statement from him. That is not to say that such persons in authority might not have done so.
Counsel for the Crown asserts that a court can take judicial notice of the fact that it is the police that investigate crimes and that Corrections officials do not. While this generally accords with the practice of the respective officials I do not know that it is a matter that the court can take judicial notice of, but that is not fatal to the position taken by the Crown. The Crown on a voir dire to prove the voluntariness of the statement must prove beyond a reasonable doubt that the statement was voluntary; nothing more and nothing less.
The Facts
The appellant was arrested on September 8th at about 8:30 p.m. in the community of Indian Township in the State of Maine. He was arrested by William Joseph Nicholas who was assisted by Joseph J. Doucette. These two officers immediately turned the appellant over to Donald William Goulet and David M. Bell of the Federal Bureau of Investigation who then transported the appellant to the Hancock County Jail at or about 11:30 p.m.
The next morning, September 9, 1994, the appellant was transported from that jail to the Bangor District Court by Mr. Goulet and a Maine State Trooper named Phillip Bouchard. The latter was not called on the voir dire but Mr. Goulet testified that Mr. Bouchard had no verbal or physical contact of significance with the appellant.
Mr. Goulet turned the appellant over to the custody of the United State's Marshals office represented by Amy Sturgeon. She took custody of the appellant.
After his court appearance on September 9th, Ms. Sturgeon and Deputy Michael Gilden transported the appellant to a holding facility in Lewiston. Ms. Sturgeon testified on the voir dire that Deputy Gilden had no verbal or physical contact of significance with the appellant. Ms. Sturgeon testified that she had no contact with the appellant after September 9th until the day she transported him to the U.S./Canadian border which would have been on September 15th.
I would infer from the evidence that from September 9th until September 15th the appellant was housed in custody in the Lewiston County Jail. I would also infer from the evidence that some time in this period he had the services of counsel, a Mr. Bruce Jordan, as is evidenced by an affidavit of the appellant sworn to on the 13th of September, 1994, and attached to the Extradition Order which was introduced on the voir dire in dealing with the admissibility of the appellant's statement. In that affidavit the appellant acknowledged that he had been fully informed by his attorney of his rights under the Extradition Treaty in force between the United States and Canada. In the affidavit waiver he conceded that he was the individual against whom charges were pending in Canada and that he had reviewed the complaint which set forth the specific crimes for which his extradition was sought and that he waived his right to any hearing with respect to the extradition proceedings. The waiver also contained the following paragraph:
"Nevertheless, I execute this formal waiver of my rights without any promise or threats being made or any other form of inducement or intimidation being exercised on the part of any representatives, officials, or officers of the United States or of Canada, or of any person whomsoever; I execute this waiver of rights, therefore, knowingly, voluntarily, and entirely of my own free will and accord."
This affidavit was sworn on the 13th of September, 1994, before the presiding U.S. Judge. The Extradition Order was made on September 13th.
There is no evidence as to how the appellant was transported from the Lewiston Jail to Bangor for his court appearance on the 13th nor any evidence of what happened to the appellant after the court appearance in Bangor on September 13th, that is, no evidence relating to any contact by a person in authority from the time of his court appearance on September 13th and his return to custody on that date until picked up by Amy Sturgeon and Robert O'Halloran on September 15th from the Lewiston Jail.
On September 15th Ms. Sturgeon and O'Halloran transported the appellant to the Canadian border where he was turned over to Sergeant Brown and Constable Foran of the RCMP. Ms. Sturgeon testified on the voir dire that O'Halloran had no verbal or physical contact of any significance with the appellant.
In summary, the unaccounted for times are while the appellant was in custody in either the Hancock County Jail or the Lewiston Jail or while being transported from the Lewiston Jail to court and from court back to the Lewiston Jail.
On September 15th, according to the evidence of Sergeant Brown and Constable Foran, the appellant while in their custody was read his rights on several different occasions including at the Canadian-US border; at the St.Stephen detachment office; before commencing the written statement; and then before and during the videotaped re-enactment.
Sergeant Brown and Constable Foran testified at the trial and on the voir dire that on September 15th, they received the appellant from the US marshals at the border between St.Stephen, New Brunswick and Calais, Maine. The appellant was transferred to their police vehicle where he was advised that he was under arrest for first degree murder.
Constable Foran read him the police warning and he was given his Charter rights:
"You need not say anything. You have nothing to hope from any promise, nothing to fear from any threat whether or not you do say anything. Anything you do say may be used as evidence."
...
"You have the right to retain and instruct counsel without delay...If you cannot afford a lawyer, one will be provided for you. You can apply through the provincial Legal Aid program."
The officers testified that the appellant was then transported to the St.Stephen police detachment for the purpose of using the washroom facilities. He was detained for a brief period of time in an interview room at the St.Stephen detachment. During that time, Sergeant Brown again informed the appellant that he was under arrest for first degree murder, advised him of his rights and those that pertained to a warning that was phrased as follows:
"You need not say anything. You have nothing to hope from any promise of favour. You have nothing to fear from any threat whether or not you do say anything. Anything you do say may be used as evidence."
Sergeant Brown explained to him in layman's terms what the warning meant, as well as explaining his rights as a Young Offender and of his right to contact counsel, or a parent or a guardian. According to Sergeant Brown's evidence at the trial, he then read the appellant a secondary warning while he was still in the interview room:
I wish to give you the following warning. You must clearly understand that anything said to you previously should not influence you or make you feel compelled to say anything at this time. Whatever you felt influenced or compelled to say earlier, you are now not obligated to repeat nor are you obligated to say anything further, but whatever you say may be given as evidence.
He then testified that he further explained to the appellant that because of the contact that the appellant had with other people at the time of his arrest, and since his arrest, that nothing that had happened prior to the appellant meeting with Sergeant Brown and Constable Foran should influence him to say or do anything. Sergeant Brown testified that the appellant said he understood this. The Sergeant told the appellant that the reason they were "taking it so seriously was that the charge was of first degree murder... and that it was in his best interest not to speak to [them], not to make any comments, and to talk to a lawyer first."
Sergeant Brown and Constable Foran testified at the voir dire and the trial that on September 15th they took a written statement from the appellant and a subsequent videoed statement on the same date. The Officers testified that they left the St.Stephen detachment and put the appellant in the rear of the police vehicle. The written statement was taken by Constable Foran in the police car shortly after leaving St. Stephen, New Brunswick. Their destination, at that time, was Truro, Nova Scotia.
Before taking the written statement, Constable Foran read the appellant the Police warning, and his Charter rights. The police caution read as follows:
"You are under no obligation to give a statement and you need not say anything...You have nothing to hope from any promise or favour, nothing to fear from any threat, whether or not you say anything. This means that you should not be influenced by any promise or threat made to you...Any statement you give may be repeated in Court and used in evidence in proceedings against you..."
In addition to those warnings, Constable Foran also read him the Young Offender warning. Each portion of the statement was read and explained to the appellant and he initialed each portion.
Later the same day, Sergeant Brown and Constable Foran subsequently obtained a video taped statement from the appellant at the scene of the crime, the Ultramar Garage in Central West River, Pictou County, in the Province of Nova Scotia. At the trial, Sergeant Brown testified that he advised the appellant during the video as follows:
"I wish to give you the following warning. You must clearly understand that anything said to you previously should not influence you or make you feel compelled to say anything at this time. Whatever you felt influence or compelled to say earlier, you are not now obligated to repeat, nor are you obligated to say anything further, but whatever you do say can be used as evidence. Do you understand what I've just read to you? "
Sergeant Brown's testimony at the voir dire was consistent with that subsequently given at the trial. Sergeant Brown testified that he again read the appellant his Charter rights. He gave him the above police warning prior to and during the videoed statement. He testified that the warning was explained in more detail to him along with the meaning of his right to counsel. It appears that the above warning is the same as that which was given to the appellant in the St.Stephen detachment office.
On the voir dire five U.S. persons in authority were called as witnesses.
Mr. Nicholas, the arresting officer, testified that his only purpose in having any contact with the appellant was to arrest him. Similar testimony was given by Mr. Doucette.
Ms. Sturgeon testified that there was little conversation between herself and the appellant and that she was disinterested in doing other than transporting him.
FBI Officer Goulet testified that after he arrested the appellant and while the appellant was in the police car, the appellant stated that he had not been in Canada. At that point Goulet advised Officer Bell to give the appellant a Miranda warning. Goulet testified on the voir dire as follows:
"Generally, the Miranda reading states that before we, or I as an agent, ask you any questions, you have the right to remain silent, you have the right to an attorney, and if you can't afford an attorney, one will be appointed to you by a court of law. Also, if you decide to answer questions, you can stop questioning at any time."
Officer Goulet also testified that he had no intention of questioning the appellant nor did he question the appellant. He testified that there was no conversation; his purpose was to satisfy the demands of the U.S. Warrant for Arrest.
FBI Officer David Bell who had accompanied FBI Officer Goulet testified that he was simply involved to secure the officers making the arrest of the appellant. He confirmed Officer Goulet's testimony that he had no intention of questioning the appellant. He testified that he gave the appellant the Miranda warning.
The record shows that on September 9th the appellant had asked for and obtained an adjournment of the Extradition Hearing until September 13th. Obviously he had the advice of counsel during this interim period as on September 13th he signed the affidavit of waiver to which I have already referred. The evidence discloses that the presiding judge had given the appellant a Miranda warning on September 9th and again on September 13th.
There is no evidence as to whether any Corrections Officers, or anyone else for that matter, may have been in anything other than routine contact with the appellant while he was housed in jail between September 9th and September 15th. It is possible that some Corrections Officer or other person in authority may have made a threat or promise to the appellant while housed in either the Hancock Jail or Lewiston Jail but there is no evidence on the point. The burden is on the Crown to prove beyond a reasonable doubt that the statement given to the RCMP on September 15th was voluntary in accordance with the Ibraham rule. The question that must be asked is how far does the Crown have to go to meet this burden so as to have the statement admitted at trial. Based on the case law, the Crown must call or explain the failure to call all persons in authority who reasonably may have been in the position to influence the accused by threats or promises to give a statement. The facts of a particular case will dictate how far the Crown must go. It is abundantly clear that RCMP officers Foran and Brown emphasized to the appellant that he did not have to give a statement and that they could not make any promises to him. None of the U.S. Corrections Officers were in a position to make any promises to him nor is there any reason why they would threaten him that if he did not make a statement it could act to his prejudice. In his waiver signed at the time of the extradition hearing he stated that no threats or promises had been made to him by U.S. officials. This was a crime committed in Canada and the role of U.S. persons in authority was remote from the investigation and prosecution of the appellant. The appellant did not testify on the voir dire. In the absence of any evidence from the appellant that he had been threatened or promises made to him by U.S. persons in authority which he subjectively believed would come to fruition if he did not make a statement, there is no reason, considering all the other evidence, particularly the evidence of RCMP Officers Foran and Brown, to conclude that the trial judge erred in ruling that the Crown had met the burden of proving beyond a reasonable doubt that the statement was voluntary.
The U.S. persons in authority were not involved in the investigation. The statement of the appellant was not given until the appellant was in Canada after having been turned over to Canadian authorities. The trial judge found that all persons who were directly or indirectly connected with the statement were called as witnesses on the voir dire. On the facts of this case the possibility that some person in authority in the U.S. may have induced him to give a statement does not give rise to a reasonable doubt that the statement given to the R.C.M.P. was voluntary. It is clear from the record that the Canadian authorities, to whom the appellant gave his statement, time and time again advised him of his Charter right to contact a lawyer, his right as a young offender to contact a parent or other person and his right not to make any statement. Despite these cautions and advice the appellant wanted to talk. The officers described the appellant as cocky and self-assured.
In my opinion the trial judge did not err in ruling the statement voluntary and, therefore, admissible without hearing the evidence of the U.S. custodial authorities unconnected with the investigation or the taking of the statement.
The appeal ought to be dismissed.
Hallett, J.A.
Concurred in:
Freeman, J.A.
Pugsley, J.A.
C.A.C. No. 123584
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
RICHARD JAMES SOCOBASIN
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
HER MAJESTY THE QUEEN )
) HALLETT, J.A.
)
Respondent )
)
)
)
)
)
)