Citation: R. v. Ward, 2010 NSSC 4
Date: 20100108
Docket: CRH 303841
Registry: Halifax
Between:
Her Majesty the Queen
v.
Matthew Ward and Shane Ward
VOIR DIRE ON ADMISSIBILITY OF STATEMENT BY MATTHEW WARD
Restriction on publication: s.539 C.C.C.
Judge: The Honourable Justice Felix A. Cacchione
Heard: November 18-20 and December 21, 2009, in Halifax, Nova Scotia
Counsel: John Feehan and Eric Taylor, for the Crown
Luke A. Craggs, for Matthew Ward
Alfred Seaman, for Shane Ward
By the Court:
[1] This voir dire was held to determine the admissibility of a statement given by the accused Matthew Ward.
[2] The two issues to be determined are whether the statement given by Mr. Ward was voluntary and whether there was an infringement of Mr. Ward’s right to counsel.
[3] The facts surrounding the taking of his statement are as follows: On January 8, 2007 Constables Nicholson and Lillington responded to a disturbance call at the accused’s residence at approximately 8:17 p.m. Upon their arrival the officers were waved into the residence by Mr James Oickle the stepfather of both accused Shane and Matthew Ward.
[4] Once inside the residence the officers noted a male person wrapped in a blanket with his head on the steps leading to the upstairs level of this residence. There was a considerable amount of blood in the area where this male person was laying.
[5] Matthew Ward was also inside the residence. He was upset and talking.
[6] Mr. Oickle advised the police that he had asked one of the males in the residence to leave the residence in order to de-escalate the situation.
[7] Constable Nicholson asked Matthew Ward what had happened. Mr. Ward identified himself as Matthew Ward and told the officer that his brother was jealous about something, beat the victim with a bat and then fled the residence.
[8] Constable Nicholson who was dressed in his police uniform did not attempt to engage Matthew Ward in any conversation. He did not notice any other police officers at the scene engaging Mr. Ward in conversation or interacting with him.
[9] Constable Nicholson noted that Mr. Ward was upset and it was evident to the Constable that what Mr. Ward had seen was disturbing to him.
[10] Constable Nicholson made notes of what he observed and heard within three to four minutes of his arrival at the residence. He noted that Matthew Ward was visibly upset and intoxicated. The officer could from a distance smell alcohol coming from Mr. Ward’s breath and Mr. Ward’s speech appeared to be slurred. Matthew Ward kept talking even when the officer was not facing him.
[11] Throughout his dealings with Mr. Ward Constable Nicholson viewed him as a witness and not as a suspect.
[12] Constable Lillington did not deal with Matthew Ward, as his focus at the residence was on the well-being of the victim. He heard Mr. Ward say some things but he could not recall what Matthew Ward had said because he was not dealing with him directly. Mr. Ward appeared, to him, as someone who was nervous and anxious.
[13] Mr. Ward was transported to the police station by Detective Constables Brien and Thomas at 9:38 p.m. They arrived at the police station at 9:54 p.m. and Mr. Ward was taken to an interview room so that a witness statement could be taken from him. Mr. Ward was not under arrest nor was he a suspect when he was taken to the police station.
[14] Mr. Ward was described by the various officers who came into contact with hm that evening as being quiet, upset and emotional.
[15] Detective Constable Thomas, a ten year veteran of the Halifax Regional Police Services understood when he was at the scene of the incident that he was investigating a serious assault and that the victim was in serious condition. He was also aware that Matthew Ward had been drinking and he in fact could smell alcohol on Mr. Ward’s breath. Detective Constable Thomas testified that Mr. Ward appeared steady on his feet and that he had a clear and coherent conversation with Mr. Ward.
[16] While at the police station Mr. Ward was allowed to make personal phone calls. He was placed in a monitored interview room and a videotape recording Mr. Ward’s conversation with Detective Thomas was made.
[17] The videotape recording of Mr. Ward’s conversation with Detective Thomas begins at 10:09 p.m. on January 8, 2007. It is evident from a review of this videotape that, although Matthew Ward’s speech at the beginning of the interview was somewhat slurred, he understood where he was and why he was there.
[18] During the course of giving his witness statement Mr. Ward told Detective Thomas that he had punched both his brother Shane and the victim Phillip Love when they were fighting with each other so that he could get them out of his way. As a result of saying this Mr. Ward was then arrested for assault.
[19] Immediately after being told that he was under arrest for assault Mr. Ward was also advised of his right to counsel. Mr. Ward indicated to Detective Thomas that he wished to speak with a lawyer. Detective Thomas also advised Mr. Ward, before he spoke to counsel, that if the victim’s condition changed then his jeopardy would also change.
[20] Shortly after this Detective Thomas gave Mr. Ward a police caution with regard to the attempted murder of Phillip Love.
[21] Although Matthew Ward was given a police caution regarding the attempted murder of Phillip Love he was not placed under arrest for that offence nor was he ever charged with that offence.
[22] Mr. Ward spoke with the duty counsel that evening between 10:44 and 11:04 p.m.
[23] Mr. Ward’s own words during the interview show that he understood from speaking with counsel that he did not have to speak with the police. At one point during the interview (transcript page 91). Mr. Ward is noted as saying “I was told not to speak to you at all”.
[24] Matthew Ward subsequently consented to the taking of DNA samples from his person. Mr. Ward’s speech improved as time went on. The slurring of words, which was apparent at the beginning of the interview, decreased as the interview went on and was non-existent by the end of the interview.
[25] During the interview Mr. Ward advised to Defective Thomas that he consumed approximately six to eight beers and two glasses of wine prior to the incident.
[26] A review of the videotaped recording of Mr. Ward’s interview shows that Matthew Ward understood the questions that were put to him and answered those questions. This review also shows that Mr. Ward asked questions of his own. Detective Thomas’ evidence that Mr. Ward was not too intoxicated to be able to answer questions which were put to him is confirmed by a viewing of the videotape.
[27] Mr. Ward was released from police custody in the early hours of January 9, 2007. Mr. Ward was never charged with assault.
[28] On May 10, 2007 Matthew Ward was arrested and charged with first degree murder. He was committed to stand trial on a charge of second-degree murder.
[29] The prosecution now seeks to have admitted into evidence the statement given by Mr. Ward after his arrest for common assault.
[30] It was argued by the defence that Mr. Ward’s statement of January 8, 2007 to the police was involuntary, as it was not the product of an operating mind. The evidence presented on this voir dire does not confirm this.
[31] Mr. Ward did not speak to the police because of threats, promises or inducements made to him. He spoke to the police because he wanted to do so. Although there is some evidence both through the police witnesses and the videotape of Mr. Ward’s interview that Mr. Ward was intoxicated, such intoxication does not automatically render his statement inadmissible. It does not follow that because Mr. Ward was intoxicated he could not make a voluntary statement. The fact that Mr. Ward may have been intoxicated is a factor to be taken into consideration when deciding whether he possessed all of his faculties to the extent that he could appreciate the consequences of his statement: Regina v. Hartridge, [1967] 1 C.C.C. 346 (Sask. C.A.).
[32] In R. v. Richard (1980), 56 C.C.C. (2d) 129 (BCCA) the court ruled that in cases of self induced intoxication the issue is usually one of the trustworthiness of the statement as opposed to the admissibility of the statement. The court held that it was only if at the time of making his statement as accused, in a state of self induced drunkenness, was so devoid of rationality and understanding that his uttered words could not fairly be said to be his statement at all that the statement should not be held to be admissible. The court was also of the opinion that proof of intoxication is not in itself evidence pointing to a rational conclusion that the statement of the accused is involuntary. The court indicated that there must be tangible evidence from which an inference may reasonably be drawn that the accused was not aware of the consequences or did not know what he was saying.
[33] The evidence discloses that Mr. Ward had an operating mind at the time he spoke to the police. It is clear from a review of the evidence presented, including the videotape, that Mr. Ward possessed a sufficient degree of cognitive ability to understand what he was saying and to comprehend that the evidence could be used in proceedings against him.
[34] The evidence presented does not support a finding that the actions of the police authorities deprived of Mr. Ward the right to make an effective choice about whether or not to speak with the police authorities. The police did not use coercion, trickery, misinformation or a lack of information as a means of having Mr. Ward make his statement: R. v. Paternak (1995), 101 C.C.C. (3d) 452 (Alta. C.A. ) reversed on other grounds [1996] 3 S.C.R. 607.
[35] The totality of the evidence satisfies me beyond a reasonable doubt that Mr. Ward’s statement was given freely and voluntarily.
[36] The second issue in this voir dire concerns whether Mr. Ward knew the extent of his jeopardy at the time he spoke to the police and whether his right to counsel under s. 10(b) of the Charter was infringed.
[37] The purpose of the right to counsel guaranteed by s.10 of the Charter is not only to provide detained persons with an opportunity to be informed of their rights and obligations under the law but also to gain advice on how to exercise those rights and fulfill those obligations. The reason why this opportunity is made available to persons who are under arrest or detention is because an individual who is detained by the state authorities is put in a position of disadvantage relative to the state: R v. Bartle, [1994] 3 S.C.R. 173.
[38] The basic notion is that the right to counsel exists to protect the ability of a detainee to make an informed choice. This is why the requirements that information as to the existence of the right to counsel and the means by which that right may be exercised must be provided to a person who is either detained or arrested.
[39] In situations where the status of the subject of a police investigation changes as the investigation proceeds or where a witness becomes a suspect and later on an accused in the investigation it may be necessary for the police to comply with the obligations imposed upon them by s. 10 more than once. As stated by Wilson J. in R. v. Black, [1989] 2 S.C.R. 138 at paragraph 24 an individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy: See also R. v. Smith , [1991] 1 S.C.R. 714 and R. v. Haynes, [1997] B.C.J. No. 2756.
[40] The prosecution argues that Mr. Ward was aware of the “big picture’ when he was speaking with Detective Thomas. It refers to Mr. Ward making reference during the interview to having heard Detective Thomas use the words “attempted murder”. It also points to Mr. Ward being given a police caution regarding attempted murder, and argues that he was therefore aware of the seriousness of the situation and the extent of his jeopardy.
[41] The prosecution also points to the nature of the questions put to Matthew Ward during his interview. It refers to very few of these questions as involving a discussion of Matthew Ward’s participation in the events which led to Mr. Love’s injuries.
[42] It is evident from a review of the videotaped interview that Detective Thomas’ purpose for interviewing Mr. Ward was to gain information about what had occurred at his residence which could assist his investigation. A majority of the interview time was spent in discussing what Shane Ward had done to Phillip Love and not what Matthew Ward had done to him.
[43] The prosecution submits that Mr. Ward’s rights under s.10 of the Charter were not infringed. It is argued that if the court should find a breach of Mr. Ward’s Charter rights then such breach was merely technical in nature and the admission of evidence obtained as a result of such a technical breach would not bring the administration of justice into disrepute.
[44] Counsel for Mr. Ward argues that Detective Thomas created a confusing situation by arresting Mr. Ward for common assault, giving him a police warning for attempted murder, and questioning him about the attempted murder and his brother Shane’s participation in that event.
[45] It is also submitted that it is unclear whether Matthew Ward was at the police station as a witness or a suspect on an attempted murder. The defence claims the central issue as being whether or not Matthew Ward was properly apprised of the jeopardy he was facing when he was placed under arrest.
[46] Matthew Ward was arrested for assault. He was advised of his right to retain and instruct counsel in relation to his arrest for assault. Matthew Ward chose to exercise his right to counsel and spoke with duty counsel shortly after his arrest for assault.
[47] Matthew Ward was aware at the time he was speaking with Detective Thomas that Mr. Love had suffered significant injuries. He was the person who called 911 and the one who attempted to deal with Mr. Love’s injuries while awaiting the arrival of the emergency personnel. Detective Thomas told Mr. Ward immediately before arresting him for assault that Phillip Love was in the hospital and that he might or might not die.
[48] Mr. Ward called no evidence on this blended voir dire. There is no evidence before the court on whether or not the police officer who contacted duty counsel for Mr. Ward advised that counsel of what charges Mr. Ward was in custody for or the possibility of any greater jeopardy if Mr. Love died.
[49] Both the information and implementation components of the right to counsel were observed here. Matthew Ward was told of the reason for his arrest being an assault on Phillip Love. The police provided to Matthew Ward with a reasonable opportunity to exercise his right to counsel and they ceased questioning him until he had the reasonable opportunity to exercise his right to counsel.
[50] The purpose behind the right to be informed promptly of the reasons for arrest or detention and the right to retain and instruct counsel without delay is so that the person under detention or arrest may make an informed choice whether to exercise the right to counsel and if so to retain well-founded advice based on an understanding of the extent of that person’s jeopardy: R. v. Borden, [1994] 3 S.C.R. 145; affirming (1993), 84 C.C.C. (3d) 390 (NSCA).
[51] The accused bears the burden of establishing on a balance of probabilities that his constitutional right under s.10 of the Charter was infringed. In order to exclude evidence obtained as a result of the infringement of these rights, the accused must also establish, on the same standard, that the evidence sought to be admitted was attained in a fashion that is constitutionally impermissible and that the admission of such improperly obtained evidence could bring the administration of justice into disrepute: R. v. Goldhart (1996), 107 C.C.C. (3d) 481 (S.C.C.)
[52] Matthew Ward chose to speak to the police after he consulted with a lawyer. He had been made aware that if Mr. Love’s condition changed then his jeopardy would also change. He had also been given a police caution regarding the attempted murder of Mr. Love.
[53] There is no evidence before this court to indicate that Matthew Ward was confused about the extent of his jeopardy when he spoke to duty counsel.
[54] Matthew Ward did not say anything during the interview that would implicate him in having caused the grave injuries suffered by Mr. Love.
[55] The audio and video taped interview of Matthew Ward after he consulted with counsel shows that many of the questions asked of him were in regard to his brother’s participation in the events which led to Mr. Love’s injuries and his ultimate death. I am not satisfied that the police, in asking questions of Matthew Ward, were attempting to incriminate him. It is evident that the police were merely attempting to gain information which would assist them in their investigation.
[56] I am not persuaded that it has been shown on a balance of probabilities that Matthew Ward’s right to counsel was violated or infringed. It is therefore unnecessary to embark on an analysis of whether Matthew Ward’s statement should be excluded.
[57] Matthew Ward’s statement has been proven to have been voluntary beyond a reasonable doubt. Matthew Ward’s right to counsel was not violated and accordingly his statement is admissible.
_________________________
Cacchione, J.