Cite as: R. v. Munroe, 1991 NSSC 15 1991 SSB No. 402 IN THE SUPREME COURT OF NOVA SCOTIA
TRIAL DIVISION
BETWEEN: HER MAJESTY THE QUEEN INFORMANT - and KENNETH JAMES MUNROE ACCUSED HEARD: At Shelburne, Nova Scotia, before the Honourable Mr. Ju~tice D.W. Gruchy on June 4 and 5, 1991 DECISION: June 6, 1991 COUNSEL: Mr. J.H. Burrill Mr. R.M.J. Prince, Crown Attorneys Mr. C.M. Garson, Defence Attorney
1991 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: HER MAJESTY THE QUEEN - and KENNETH JAMES MUNROE GRUCHY, J. (Orally) (The accused, Kenneth the first degree murder of Hallett day of August, 1989. Several accused. Prior to the empanelling of the jury a dires were held to determine the admissibility of such statements. The following is the decision rendered orally on the completion of voir dire # 2.) On August 17, 1989, went to the residence of the accused. time they had reasonable and probable cause to arrest the accused for the murder with which he was that cause had been crystalized attended at the R.C.M.P. station Constable Urquhart of a plan which SSB No. 402 INFORMANT ACCUSED James Munroe, was charged with Corkum on or about the 1st statements were taken from the series of voir Constables Urquhart and Oldford They felt that at that subsequently charged. Indeed, by Russell Schumacher who had on August 9 and had told the accused had conceived
- whereby Hallett Corkum would be or killed. The officers had elicited the assistance of Schumacher in an attempted and eventually aborted recording of a conversation between Schumacher and the accused. below, but it does become clear that the accused realized what was being attempted. The two officers picked at Lake George near Shelburne. front door of the accused's residence and escorted him to the police car, type of pocket knife which he taken directly to the R.C.M.P. station in Shelburne. showed no signs of drinking alcohol or problems. He was told to listen very carefully and he was told of his right to counsel, which the accused appeared to understand. He was read the standard police caution or warning, appeared to understand. The accused appeared nervous and flushed. Urquhart noted a pulsing of his noticed a similar symptom. The accused was taken directly to the interview with no interference by any ot~er person. There was nothing oppressive about room. By pre-arrangement the and the accused was to be recorded surreptitiously, and it was. It was done in that fashion as the police said they were concerned that the presence of a recording device would nervous and reticent. The accused and police p s m, The interview began a minute made certain that any contact with counsel by phone or in person was not recorded. There was a 2 robbed and/or possibly injured I will say more of this up the accused at 8:39 p s m, Constable Urquhart went to the and took him by his arm relieving him of a large had on his person. He was then The accused any mental or physical which he temples and Constable Oldford room The room was described. the physical layout of the conversation between the police make the accused entered the building at 8: 50 or two later. The police phone in the interview room,
- together with a directory and the accused was free at any time to contact counsel. He was counsel. The recording is not of There was a fan running in the room and the sound of it interfered wi th the quality, and occasionally the officer, moved things on the transcript of the interview Urquhart has listened to the tape He has said, and I accept, that As the tape was played in Court I, as well, read the transcript and I felt it to be accurate, but clearly, subject, of course, to the limitation that I could not recognize voices and did not make any use of replays to check appear to me to be accurate. At 9:00 o'clock the officers assisted the accused number.· They did not record stopped all questioning of any nature. Mr. Miller, then the according to the officers, a man He arrived at the station at 9:30. wi th the accused where there was told what charges were pending interviewed him and was told of some of the evidence. made it clear to the R.C.M.P. that he did not need to answer any questions and that he should not do so. The R. C. M.P • on the other hand made it clear that that was the right of the accused, continue the interview. Constable Urquhart said that while that was the right of the accused and his counsel, right to question him. Mr. Miller pvm, to 9:50 p s m, He then had 3 repeatedly told of his right to a particularly good quality. accused, or perhaps an desk and that created noise. A recording was made. Constable and has read the transcript. the transcript is accurate. accuracy. It did, however, accused asked for counsel. The in obtaining his lawyer' s phone his phone call and immediately lawyer for the accused, is who practices in criminal law. He was given ~ private office no recording device. He was against the accused before he Mr. Miller that he had advised the accused but that they intended to they also had a saw the accused from 9: 35 a conversation with Constable
- Urquhart when their respective positions were stated and counsel's advice was repeated. The officer said that the be allowed to call counsel any time he wanted and the phone and the book were right there. Counsel said to the accused in the presence of the officers, "Call there." After Mr. Miller left, the interview began. After approximately fifty Constable Urquhart, or soliloquy it, there was an interruption. station. A message was given to the accused that if he wanted, Mr. Miller would come into the room with him. his reply which is found at page interview. He said, "No, I don't want him in. go to jail wherever the hell you're going to take it's all right, tell him to go home." There was an interval at the station and when the message but in that time nothing inculpatory interruption the monologue continued. or lecture or plea or soliloquy lasted for 55 minutes, essentially only interrupted by the accused. suggested or requested that the the next day but the officer refused politely and At other points in the conversation the accused requested that the statement be given the next day. to the timing of the statements; the form of a refusal. The monologue appeals to conscience, appeals acquaintanceship of the officer to the flattery of the accused, flattery of the family of the accused, 4 accused would me if you need me. I'll be minutes of monologue by as Crown counsel has called Mr. Miller had come back to the The accused gave 49 of the transcript of the I just want to me" •.. "Nah! between Mr. Miller's arrival was given to the accused was said. After the In total, the monologue On several occasions the accused questioning be put off until continued. Those requests were related they did not appear to be in consisted variously of to religion, references to the accused and his family,
- accusations of the murder, pleas to get it over with, statements of the knowledge of the police as a result of the investigation, a recognition of the agony of the accused would feel better happened. There is no question that the monologue was persistent. After the monologue of the accused indicated a willingness timing of the interview was as follows: and the monologue recommenced. started to write the statment. statement was signed. After that, to the accused and he answered them, tape shows that he was quiet and subdued in his manner. was no sign of antagonism by Urquhart and none by that officer to the accused. the accused asked that Constable Oldford not the taking of the statement because he, had taken a dislike to that officer. If I thought there was any oppressive atmosphere created by the monologue (and I am not necessarily saying that that impression would have disappeared itself. Oppressiveness, of course, the subjective effect upon the monologue being delivered one had the impression that the accused was at first taciturn and uncommunicative. seemed to change and that change Urquhart in his testimony. I perceived that the very atmosphere which I had felt throughout the monologue That was as Constable Urquhart described it. There is an excellent oppression quoted in Marin's Admissibility of Statements, 5 mind of the accused, pleas that if he talked about what had slightly less than an hour, to give a statement. The Mr. Miller left at 9:50 At 11: 00 0' clock the Constable At 11:22 the first part of the further questions were put apparently willingly. The There the accused towards Constable At one point be present during the accused, apparently I did) during the ° statement must be judged largely by accused. By Li s t.en i.nq to the But the atmosphere was described by Constable seemed to dissipate. passage on the matter of (7th
- ed.), 6 from R. v. Priestly, (1966), There I mentioned that I had not authority on the meaning used in the preamble to the I venture on such a definition, compile a list of categories of oppression, mind, this word in the context of the principles under consideration imports something which tends to sap, has sapped, that free will confession is voluntary ••• Whether oppression in an individual elements. I am not going into all of them. such things as the length of time of any individual period of questioning, the length periods of questioning, whether been given proper refreshment characteristics of the person What may be oppressive as or an old man or somebody this world may turn out not to be finds that the accused person is an experienced man of the world. In this regard, although first blush, the reference of the attempts by Schumacher to record conversations are of relevance the accused I s reference to the done in a mocking manner by the accused. to it as being perhaps a return indicated to me that the accused the point where he was able lightheartedly. Secondly, it indicated to had known from the time of the attempts onward that the police were after him. He had recognized meant. Therefore, while the precise of the accused by the police had not been the accused, it surely could not to him. But in this context, at the point of mocking the police, clearly the accused had his own operating mind and if there had 6 50 Cr.App.R. 183, as follows: been referred to any of the word "oppression" as Judges I Rules, nor would and far less try to but, to my and which must exist before a or not there is case depends upon many They include of time intervening between the accused person has or not, and the who makes the statement. regards a child, an invalid inexperienced in the ways of oppressive when one a tough character and not apparently important at for various reasons. Firstly, attempts at the recording was The Constable referred of cockiness. It certainly had his own independence to to mock the police somewhat me that the accused the wire and knew what it time of the apprehension known or guessed by have been any great surprise
- been any type of oppression (and I'm not saying there was), it was allover at that point. There his operating mind in that the accused refused to have Constable Oldford ("that idiot") present while giving his statement. he refused to go to the crime scene. evidence of his independence and of his own operating mind. The Constable said the accused appeared to be relieved to be telling his story. I believe that to be true. had previously called a lawyer having the interview halted until He had a telephone beside him throughout the interview. no attempt to avail himself of it. R. C.M. P. station and offered to The accused declined that opportunity. both from the point of view of his right to counsel and, as well, to show that if the interrogation hatch was present and available. I am grateful to counsel for having set out the various issues in law for my consideration. I will set forth the s ub j ec t s I will make the necessary rulings reasons. I am sure I will probably miss which have been suggested but the following are subjects I to address: 1. Voluntariness 2. Oppressiveness and the Operating Mind 3. The Right to Silence, as enunciated by R. v. H~bert (1990), 57 C.C.C. (3d) 1 (S.C.C.) and by the Charter of Rights 4. The Right to be Informed, the Charter 5. The Right to Retain and Section 10 of the Charter 7 was also clear evidence of Later Those are all items of The accused and had had the experience of he obtained legal advice. He made His counsel returned to the come into the interview room. This is significant, was oppressive, the escape At the risk of repetition, as they were set before me and and outline very briefiy my some of the s ub j ect s wish as required by Section 10 of Instruct Counsel, pursuant to
- 6. Surreptitious Recordings In reaching my decisions on these various matters I've referred extensively to material I found to be a most useful text in a trial setting. 1. Voluntariness - At the request of both counsel, to keep in mind the totality of the circumstances of the accused, his apparent personality and the interviewers in the whole context of the statements. is possible to go through the whole of the interview and find indi vidual items which may be indication of compulsion, to say that the whole of the atmosphere convinced me that there was voluntariness. I am satisfied confession given by the accused in this case was voluntary within the meaning of H~bert (supra). offered to the accused. The conscience and to explain to the police what had happened in the killing. in R. v , Martell (1984), unreported where Finch, J. said at p.S: To vitiate voluntariness, some hope of advantage or other words, the accused must he will obtain a benefit, making a statement, or if he does not make a statement, he might suffer some harm. Nei ther of those elements is present in this case. strategy and tactics followed premised on the suggestion the accused would feel better himself if he told the truth. advantage, nor the sort of authorities describe when considering voluntariness. On my view of the law, an conscience with the suggestion that he will feel better if he tells the truth, is wi thin the legally acceptable 8 found in Marin (supra) which I have tried apparent personality of the While it I have that the statement or There was no temporal inducement inducements were to relieve his and to the community It was similar to the situation No. C.R. 3095 (B.C.S.C.) the inducement must contain some fear of prejudice. In have been led to believe not otherwise available by The by the police were all That is not the sort of prejudice, which the case the question of appeal to the accused's
- limits of police interrogation ••• Further, at page 6 of the judgment, he continued: The safe guards erected by the law against the admission of statements extracted against designed to ensure that only probability of truth would be accepted in evidence •••• The holding out, if that was one-sided facts would not be presented to the Court and a threat that the facts of the killing not, in my view, intended nor could they seriously be perceived as inducements or threats outside the legally acceptable limits. I find that the police did to the accused that by co-operating he might be afforded bail. Clearly, as the interview developed, that impression and in fact I find that such an impression was not present. I cannot accept the notion that the various requests to tell the truth so that people would an invitation or even cajolery to in the sense referred to by Madam Justice L' Heureux-Dube in R. v. Smith, 50 C.C.C. (3d) 308. On the matter of voluntariness it is the Crown to show the activity authority who came into contact to making the statements. In this regard the defence has taken the position that Russell Schumacher may be a person in authority and that his activity with the accused for. I hold that for the purposes of this matter Mr. was not a person in authority. 2. Oppression and the Operating Mind there was no meaningful oppression present here. 9 an accused's will were statements which have a what it really was, that would be presented coldly were not in any way hold out the accused did not get know was any more than embark on telling his story necessary for and actions of all persons in with the accused preparatory has not been accounted Schumacher - As I have found above, While I have
- 10 described the monologue of the police officer variously, perhaps the bes t description of it was that of an exhortation. did not surpass the bounds of factors which I have considered: (a) The accused was not exhorted or questioned for an inordinate length of time. Time, of on an accused but in this case the exhortation lasted about one hour. The taking of the statement consumed about another hour. I contrast that length in R. v. Owen (1983), 4 C.C.C. in much less than ideal conditions - 6 C.C.C. (3d) 507, when a statement was given fourteen hours after the detention of the the decision of MacDonald, J.A. in R. v. I found very helpful and informative. law as of that date, prior to the Charter, forms an excellent platform upon which. an understanding the voluntariness of statements may be based. the law and the facts of the case before him, the questions to be addressed in any case such as this in the following terms: I doubt if any person suspected of committing a crime likes to be officers. and further he says: Just because suspected persons are questioned and make statements not mean that such statements are inadmissible in evidence as not having and voluntarily. The whether there are circumstances wi th the taking of the statement from which it may be inferred that it was and voluntarily made either because But it reasonableness. I cite various course, has a s ub j ec t i.ve effect of time to the questioning (3d) 538 - some thirteen hours and R. v. Fayant (1983) , accused. I reviewed carefully Owen (supra) which His synopsis of the of the law regarding Having reviewed he summed up questioned by police against interest does been made freely question always is connected not freely of some
- fear of prejudice or hope of advantage or held out by a person because of a doubt was the utterance of an operating mind. (b) The tone of the interview was that there was an escape apparently receptive to that of Constable Urquhart when the accused to the exhortation. wished to defer the questioning subject later. (c) The physical circumstances oppressive about the office. to have gone out of their way to make the accused comfortable. (d) The accused was sober and attentive and responsive. to him correctly and was well oriented. times that he had an operating mind, used in R. v. Hovath (1979), 3. The Right to Silence and 5. The Right to Counsel - For purposes of this decision, combine these two subjects. from an as yet, unfortunately, Honourable Jean-Guy Boillard dated January, 1991: Once it is established that the person detained was in possession of his mental faculties the statement, it is not necessary to establish that he was able to evaluate the situation or assess the alternatives open to him. would place an onus on the prosecution which it would often be difficult, if not discharge. Instead, the 11 made in authority or whether the statement not oppressive. It was clear available. The accused was tone. I accept the evidence he described the reactions of There were times when he but I will address that were ideal. There was nothing In fact, the police appear not on drugs. He was alert, He answered the questions put He showed at all as that expression is 44 C.C.C. (2d) 385. I will I wish to quote extensively unpublished paper by The of the Quebec Superior Court when he made This SUbjective criterion impossible, for it to determining criterion for
- 12 judging whether a confession is the assurance that the person detained obtain judicious advice in order to make this choice, by consulting counsel. It is therefore an objective criterion: in fact, if it is shown that the accused was informed at the appropriate to counsel and that the with the means to exercise it before being questioned, the confession subsequently be the result of the deponent's free choice, failing evidence of police behaviour prevented the accused from to them. This rule of informed free choice which some believed they had found in Horvath vs. R. 44 C. C. C. ( 2 ) P . 396 , 7 vs. R. (Supreme Court)(1982) 27 C.R. (3) p.289, does question a detained person counsel, or to prove statements made to another person under that time in the pay of it prohibit reporting statements by the accused which were heard by police officers in disguise, the officers did not act them. This new rule does not grant a person under detention an absolute right to silence, would be admissible only if the posi tion to assess the consequences and waived his right. On this is the new formulation free and voluntary statement, i.e. in positive terms (to make a free and informed the police or not), rather than negative speak to the police in the threats), it still remains for admissibility, apart, of course, from the detained person's mental capacity to make a statement. On this subject Madam at pages 40, 41 and 42 said: ~ The decision in Hebert does jurisprudence created at the time admissible will be was able to time of his right authorities provided him obtained is reputed to which would have truly choosing to speak (Supreme Court) (1979) C. R . ( 3 ) P . 97 and Hobbins 66 C.C.C. (2) p.289, not forbid the police to in the absence of his by the accused detention who was not at the police. Nei ther does provided intentionally to provoke where the confession deponent was in a of this choice the contrary, although of the concept of the decision to speak to terms (to absence of promises or an objective criterion I Justice McLaughlin in Hebert not make obsolete the when the free and
- voluntary nature of confessions the absence of promises or threats. In fact, even though the governing the admissibility substantially modified, the test is still the For an out-of -court statement to must be established beyond such statement was made a deponent in possession This rule stated by a unanimous R. (Supreme Court) (1979) pagel.S06, 7 C.R. (3) p.1S3, by Hebert supra. The absence of hope of advantage or fear of a threat, the lack of a form of constraint and the assurance that the incriminating statements person in possession of still important considerations voluntary nature of the statement, i. e. of the choice the deponent has, to speak to the police or not. In the future, demonstrated beyond reasonable the past. Furthermore, it will be necessary to prove, also beyond reasonable doubt, aware that he had the right that he was able to obtain advice in order to exercise it. This new aspect of the admissibility test set forth in H~bert supra is first demonstrated usual caution, where it is stated that the person questioned is not obliged to in response to police officers' evidence is also established by satisfying the trial judge that the deponent's consult counsel and to be have been respected. Mr. Justice Boillard concluded as follows: In conclusion, there are confession to be admissible. of a conscious, considered decision freely a deponent who knew that he had the choice to speak to the police or not, or to answer their questions. The trial judge will have reasonable doubt that this is the case, heard the evidence furnished at the voir dire. 13 was determined by formulation of the rule of confessions has been same. be admissible, it reasonable doubt that freely and voluntarily by of his mental faculties. Court in Ward vs. 44 C.C.C. (2) p.498, on has not been modified were made by a his mental faculties are in determining the the result this will have to be doubt, as it was in that the deponent was to remain silent and by the say anything whatever questions. This constitutional rights to informed of this right two prerequisites for a It must be the result made by to be convinced beyond once he has
- 14 I am satisfied beyond a prerequisites. The defence has said that transcript the accused refused not the way I interpret those occasions. to postpone the taking of the statement - On the final occasion was accompanied by the conditional was to be taken away from "that Oldford) , a request which was complied with. 4. The Right to be Informed I find that the accused was his being detained. He was told that the death of Hallett Corkum was being investigated, he was he was given the police caution. at the police station he requested informed before he saw the accused what the offence was first-degree or second-degree murder. interview the questions by the accused convinced me that he knew in fair precision the charge against him. shows that he knew he was being charged with murder. Constable Oldford made the preliminary inquiry and mentioned manslaughter as charge. I accept his explanation of this matter. There was sufficient compliance to be informed, pursuant to the enunciated in R. v ; Smith (supra). this point, I want to deal here reasonable doubt on both these on four occasions in the to give a statement. That is They were all requests not a refusal. the request for postponement consent that the statement idiot" (meaning Constable advised of the reason for read his rights to counsel and Within minutes of his arrival counsel. His counsel was - either In the course of the Indeed, the transcript a mistake in his testimony in a possible with the requirement Charter, as that right is Although not precisely on with the matter of tricks,
- artifices, lies or even deceit. sets forth the criteria to be applied to determine voluntariness: The absence of criteria to be applied has made the tests somewhat subjective. Some reasons for judgment of Lamer said at pp.74-5 C.C.C.: The Judge, in determining circumstances the use of proceedings would bring the administration of justice into disrepute, should circumstances of the proceedings, the manner in which the statement was obtained, the degree to which there was a breach of social values, the charge, the effect the exclusion the result of the proceedings. in mind that the investigation detection of criminals is not by the Marquess of Queensbury rules. in dealing with shrewd criminals, must sometimes tricks or other forms of deceit and should not through the rule be hampered in their be repressed vigorously that shocks the community. pretend to be a lock-up chaplain and hear a suspect's confession is conduct that so is pretending to be the elici ting in that way incriminating statements suspects or accused; injecting diabetic suspect pretending it is of insulin and using his statement in evidence would also shock the community; pretending to be a hard drug addict to break a ring would not shock the in this case, pretending secure the conviction of a traffickeri in fact, would shock the community police from resorting to such a trick. I am convinced if Constable a trick or a lie, and I am not sure that what he did could be so classified, it was not such Indeed, it would be the other way be shocked if the police did not do everything reasonable within 15 Marin (supra), at page 230, have found shelter in the J. in Rothman where he whether under the the statement in the consider all of the the seriousness of would have on It must also be borne of crime and the a game to be governed The authorities, and often sophisticated of necessity resort to work. What should is conduct on their part That a police officer sh0cks the community; duty legal aid lawyer from pentothal into a his daily shot but generally speaking, drug communi tYi nor would, as to be a truck driver to what would be preventing the Urquhart did resort to as would shock the community. around. The community would
- their power and wi thin the law to discover the truth. find that references to "living here" no way intended to be, nor could they be seen to be, of an inducement. There were references accused could anticipate. If anything, the Constable overstated the possible term which cannot inducement to confess. It was that, as far as the police were concerned, he was going to jail. I cannot find any suggestion otherwise and certainly not in the form of an inducement. 5. Right to Counsel Al though mentioned above, matter again briefly. I find that the right to counsel and exercised that right. made the informed and free choice police, albeit, after some exhortation. continued throughout the interview. to the police station the accused declined his accept the evidence of the police surrounding his declining to have his lawyer present. seems clear to me that any such right is that of the accused, not the lawyer IS. I find that the regard, as set forth in R. v. 385 were all met. I further find J .A. in R. v , Cuff (1989), 49 C.C.C. strong similarity to the present, to be very helpful. 6. surreptitious Recordings The accused was clearly warned that whatever 16 I also and "going horne" were in any sort to the imprisonment which the possibly be construed as an perfectly clear to the accused I do wish to address this accused was given his He also obviously to give a statement to the That right to counsel When his counsel returned assistance. I officers of the incident It also three obligations in this Manninen (1987),34 C.C.C. (3d) the decision of Goodridge, (3d) 65, a case with some he said
- could be used against him. In of the interview is not only fact that the police felt that the obvious presence of the tape recorder would intimidate or inhibit the taking of was accurate and understandable. that position. The police did not mislead the accused in any way. The accuracy of the tape satisfaction by the combined evidence of the two R.C.M.P. officers and the admission with respect to Constable Rioux. I also find that the to the R.C.M.P. was not a private is defined by Section 183 of warned that whatever he said could be used. this statement was taken prior to the decision in R. (1990) 53 C.C.C. (3d) 1. Marin violations which result in exclusion of a two conditions: 1. the infringement must bring the administration of justice into disrepute; and 2. the statement must have infringed or denied any by the Charter. I earlier quoted Rothman now refer to the article quoted J.A. Morton in Canada Bar Review, which points out that sometimes the exclusion of a statement rather than a person who has improperly instigated the statement. I can think of no cogent reason in the circumstances before me why I should consider the statement unreliable. it has the ring of truth to it, although that is for the jury. 17 such a circumstance a recording permissible but desirable. The a statement I found nothing wrong with was proven to my complete communication from the accused communication as that term the Code. The accused had been I also note that v ; Duarte (supra) sets forth that Charter confession should meet been obtained in a manner that rights or freedoms guaranteed (supra) in this regard. I by Marin (supra) by Professor may penalize society as a whole I found that
- 18 This was a statement, in my view, of a young man caught in a nightmare, admittedly brought on by himself, but one with whom it would be easy to relate as we have all had nightmares from time to time. I am satisfied that the statements of the accused of August 17, 1989, were given freely and voluntarily and were the product of a working mind. It may be introduced into evidence in the trial of this matter before the jury. It will undoubtedly require some editing and I am prepared to hear counsel concerning the matter. Shelburne, N.S. June 6, 1991
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