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Tom Rees | Criminal Defence Lawyer Winnipeg
12
Jan

Crown does not prove Accused’s statement was voluntary, Court of Queen’s Bench substitutes an Acquittal

The Saskatchewan Court of Queen’s Bench acquits a man convicted of driving over the legal limit (blood alcohol level in excess of 80 milligrams of alcohol in 100 millilitres of blood). The court found that the Crown did not prove the voluntariness of his statement beyond a reasonable doubt and that the trial judge should have held voir dire on the admissibility of his statement.

[9]                 In reasons delivered subsequent to trial (2013 SKPC 34 (CanLII), 413 Sask.R. 226), the learned trial judge concluded a “global” voir dire was sufficient for both Charter and voluntariness purposes. Mr. Renouf’s statement was thus admitted into evidence, which the trial judge found sufficient to establish his identity beyond a reasonable doubt. Her conclusions are set out in para. 17 of that decision:

  • 17     A voir dire had been entered into with respect to the evidence of Cst. Forrester. In my view this voir dire was not restricted to any Charter challenges but was what is sometimes referred to as a “global voir dire“. The purpose of the voir dire is a trial within a trial to determine the admissibility of certain evidence, including voluntariness of statements and Charter issues, which seem to be the most common. The defence had the opportunity to question the officer with respect to the comments and statements made by Mr. Renouf. Cst. Forrester testified that she told the person who answered the door that she was investigating a possible impaired driving offence. Mr. Renouf volunteered certain comments to her and produced his identification and registration and as a result she concluded he was the driver of the truck. At this point Mr. Renouf was not under arrest or detained in any manner at the doorway of the apartment. There is no evidence of coercion or threats, nor can any be inferred from the evidence. Mr. Renouf at this point was not required to say anything. I conclude that the defence argument on this ground must fail. There was opportunity on the voir dire to canvass all issues with respect to admissibility of evidence. The defence did not canvass the issue of voluntariness and I must say, likely because there was none to canvass, and now cannot rely on the fact there was not a voir dire within a voir dire. I am satisfied the Crown has proved identity beyond a reasonable doubt.

[10]               With regard to the first ground of appeal – failure to hold a separate voir dire on the voluntariness of Mr. Renouf’s statement to police – the Crown made the following concession on appeal:

  • The Respondent concedes, on the strength of the authority of R. v. Nguyen, 2006 BCCA 397 (CanLII) that the procedure followed in the within case could be deemed to be improper and may have prevented counsel for the Appellant at the trial to have conducted his case in the manner he otherwise would have.  This may have contributed to the trial judge being left without some evidence before her which the Appellant may have wished her to consider.

 

[11]               On this basis, the Crown consented to Mr. Renouf’s appeal and submits the matter should be remitted back to the Provincial Court for a new trial. The appellant submits that under the authority of s. 686(2) or s. 686(8) of the Criminal Code, either an acquittal or stay of proceedings is appropriate in the circumstance.

 

The Court ultimately decided to acquit the accused, rather than send it back for a new trail.