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DOOH, PROSYSS, AND KRIMEKOHM-TROWL

INTER-OFFICE MEMORANDUM
DATE: October 28, 2016
TO: Russ T. McTrustee, Senior Partner
FROM: Danielle Morrison, Articling Student
RE: Merani Murrison Robbery & Drug Trafficking Charges

Statutes: S. 7 of the Charter


Case Law: Singh, Oickle, Spencer, Coaster and Engel

FACTS:

The material facts of this case are as follows:

Merani Murrison has been charged with three robberies in Manitoba that took place
between November 12, 2004 and January 15, 2015. Murrison also confessed to marijuana
trafficking offences, the charges for which are still being contemplated. Murrisons boyfriend,
Mace Sportscaster was also arrested in relation to one of the robberies.
Murrison is a past client with the firm - we represented her on charges of stealing cattle,
alarming Her Majesty, and cyber-stalking.
In relation to the robbery charges, Murrison was interviewed by Constable H. Packer of
the RCMP. Constable Packer was returning Murrison to her cell when she asked what was

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happening with Sportscaster she was told he was being investigated for robbery charges at
which point Murrison insisted on making statements.
The interview between Constable Parker and Murrison was videotaped and lasted eight or
nine hours.
During the interview Constable Packer repeatedly (at least six times) informed Murrison
that he could not make any promises or guarantees in exchange for information. Murrison
confirmed repeatedly (at least four times) that she was not being induced to make a statement via
promises or guarantees.
Murrison repeatedly asked (at least three times) to be taken to her cell and stated that she
was exercising her rights to silence. Murrison became agitated when Packer persisted with the
interview despite her requests to be taken back to her cell she then made inculpatory comments
about drug trafficking.
Murrison pleaded that she wanted to see Mace Constable Packer responded by telling
Murrison she would have the opportunity to talk to Mace if at the end of their discussion he was
satisfied that she had been up front and cleaned [her] slate.
Murrison then asked So what do you want in order for me to talk to him to which
Packer said he wanted to know all the details about her involvement with the robberies and also
where evidence such as drugs, loot and a gun might be. Murrison confirmed her understanding
that he was making a deal with her by asking And youll let me talk to him? to which Packer
did not directly respond to but again persisted that he wanted to know everything.
Murrison then offered to make a full confession to robberies, marijuana trafficking, and
possession of a gun for whatever he needed because she lonesome. Packer responded to
Murrisons offer by stating Its a start. Murrison again asked if she could see Mace and before

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Packer could confirm yes or no she agreed to make a confession and proceeded to write it in full.
The police then found all of the evidence on the basis of a properly executed search warrant.
Following the confession, Murrison was asked what her motivation for making the
confession was to which she responded was her boy, Mace. She said it was mostly for him and
maybe for her conscience.

ISSUE:

Whether the accuseds statement was voluntarily given and in accordance with the pretrial right
to silence under section 7 of the Charter.

BRIEF CONCLUSION:

It can be argued that in applying the modern confessions rule, Murrisons statement
was involuntary based on the facts that she was in the interview for eight or nine hours,
which likely had a significant effect on her operating mind. Further evidence that she was
distressed and repeatedly asked to go back to her cell but was denied her requests can be
seen as creating an oppressive environment.

These facts, coupled with her repeated

assertions of her right to silence, would make it difficult for the Crown to prove beyond
reasonable doubt that the statement was voluntary and that her rights to silence were not
infringed upon.

DISCUSSION:

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Voluntariness of Statement

On the issue of whether the accuseds statement was voluntarily given, a discussion will
be guided by the modern confessions rule and its development and application in at least four
significant cases.
At common law, statements are made inadmissible if they are involuntary. The Supreme
Court of Canada, in the case of R. v. Oickle, determines reliability of a statement through the
modern confessions rule by factoring in the presence of threats or promises, oppression, the
operating mind doctrine and police trickery. The Crown must prove beyond a reasonable doubt
that the accuseds will was not overborne by any of the listed factors. This rule also protects an
accuseds rights and fairness in the criminal process.1
In determining voluntariness of a statement, the modern confessions rule recognizes the
tension between interests of the individual and the state. The rights of the individual must be
balanced with societys interest in the effective investigation and resolution of crimes. Therefore,
the Supreme Court of Canada found that the presence of an inducement does not make a
statement involuntary. The inducement must be strong enough to raise a reasonable doubt to be
considered improper.2
In R v. Coaster, 2014 MBCA 108, the Court of Appeal of Manitoba established that the
appellant was implicitly induced into making a statement, however there was no coercive effect
on the appellants decision-making ability and capability of resisting the interviewing officers
pressures. This coupled with the absence of any oppressive circumstances lead to the conclusion
1 R. v. Oickle [2000] SCC 38 at paras. 47-69
2 Ibid, para. 57.
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that there was no improper inducement that rendered the statement involuntary. It can be argued
that the present case distinguishes itself from Coaster for reasons that will be discussed below.
In Oickle, as well as R v Spencer, [2007] 1 SCR 500 and R v Engel, 2016 ABCA 38, the
Supreme Court of Canada recognized that an accuseds concern for their significant other might
lead them to make an involuntary statement. R v Jackson (1977), 34 CCC (2d) 35 (BCCA) at
para 38 was cited in Oickle as support:

It is my opinion that for a promised benefit to a person other than the accused
to vitiate a confession, the benefit must be of such a nature that when
considered in light of the relationship between the person and the accused, and
all of the surrounding circumstances of the confession, it would tend to induce
the accused to make an untrue statement, for it is the danger of that a person
may be induced by promises to make such a statement which lies at the root of
this exclusionary rule.

Given the rules reviewed thus far, it can be argued that Parker implicitly promised
Murrison that if she made a confession she could see Mace and therefore an inducement
occurred. Although Parker stated repeatedly that he could not make any promises, he persisted
through Murrisons pleas to go back to her cell. At that point, she was agitated and desperate to
see her partner. Parker promised her that she would have an opportunity to see Mace, only when
he satisfied that she was up front and cleaned [her] slate with a statement.
Furthermore, it is evidenced by Murrisons statements that she was under the impression
that if she gave a confession, she would be reunited with Mace. She asked what Parker wanted in

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order for her to see Mace, to which Packer said he wanted to know all the details about her
involvement with the robberies. Murrison confirmed her understanding that he was making a
deal with her by asking And youll let me talk to him? to which Packer did not directly
respond to but again persisted that he wanted to know everything. She then offered to give a
full confession, adding that she was lonesome and Parker in essence accepted her offer by
stating that it was start implying that it was a good enough offer for her to see Mace.
Oickle, in characterizing its rule on strength of inducements, indicated that the most
important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless
of whether it comes in the form of a threat or a promise. 3 The analysis thus far leads to the
assertion that a quid pro quo offer existed. Other contextual circumstances must be considered to
determine whether the accused was under oppression and of operating mind.
The interview leading up to actual confession seemed to be unoppressive in nature.
Constable Parker repeatedly informed Murrison that he could not make any promises, to which
she confirmed understanding. The circumstances change however when Murrison become
distressed at not being able to go back to cell and wanting to see her partner. It is not clear on
how much time has passed at this point nor can we determine on the facts if she was deprived of
food, water, or sleep. The facts do show however that the interview went on for eight or nine
hours, which could be argued as questioning for a prolonged period of time and thus considered
oppressive4. Sleep deprivation coupled with Murrisons distress over not being able to see her
partner could also be a major consideration in determining whether our client was of the
operating mind.

3 Ibid.
4 Oickle para. 60
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R v Spencer further develops this rule by pairing the consideration of strength of


inducement with consideration of the individuals circumstances, including personality,
character, and experience in the justice system. Murrison is referred to as a habitual criminal
and therefore likely familiar with the criminal process of investigation. This is further evidenced
by the fact that she repeatedly asserts her right to silence. These considerations weaken the
argument that Murrisons statement was involuntary.

Right to Silence

The Supreme Court of Canada has recognized that the Charter of Rights and Freedoms per s. 7
and 24 provides residual protection afforded to the right to silence.5 The provision reads:

7. Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental
justice.6

S. 24 goes onto to indicate that where these rights have been infringed upon, the person may
apply to a court for remedy, and any evidence that was obtained in manner that denies these
rights shall be excluded, if it is established that, having regard to all of the circumstances, the
admission of it would bring the administration of justice into disrepute.7

5 R. v. Singh, 2007 SCC 48


6 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11.

7 Ibid.
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In acknowledging that both the modern confessions rule and s. 7 of the Charter must both
considered with regard to voluntariness, the majority court in Singh found that:

where a statement has survived a thorough inquiry into voluntariness, the accuseds
Charter application alleging that the statement was obtained in violation of the pretrial right to silence under s.7 cannot succeed.8

The court went on to say, however, that:

if circumstances are such that the accused can show on a balance of probabilities
that the statement was obtained in violation of his or her constitutional right to
remain silent, the Crown will be unable to prove voluntariness beyond a reasonable
doubt.9

The majority court in Singh viewed the two tests (confessions rule and s. 7) as being
functionally equivalent where the detainee knows he or she is speaking to a person in
authority.10 They question the double-barrelled test of admissibility and whether it is
appropriate to impose a rigid requirement that police refrain from questioning a detainee who
states that they dont want to speak to police. 11 Doing so overshoots the protection of s. 7 of a
persons right to silence and ignores the state interest in the effective investigation of crime. As
previously stated, applying rules is a balancing act of weighing state and individual interests. In
8 R. v. Singh, para. 9
9 Ibid.
10 Ibid, para. 25
11 Ibid, headnotes
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other words, police persuasion does not always breach the right to silence because remaining
silent does not mean that a person has a right not to be spoken to by state authorities.12
With these principles in mind, it could be argued that Murrisons right to silence was breached
given the previous arguments that the statement made was not voluntary based on contextual
circumstances and the presence of a quid pro quo offer. It would follow then, that reasonable
doubt exists as to whether the statement was voluntary or not.
The dissenting opinion in Singh further supports this argument by asserting that:

Detainees left alone to face interrogators who persistently ignore their assertions of
the right to silence and their pleas for respite are bound to feel that their
constitutional right to silence has no practical effect and that they in fact have no
choice but to answer.

The dissenting court goes on to say:

Where continued resistance has been made to appear futile to one person under the
dominance or control of another [], ultimate submission proves neither true
consent nor valid waiver.

The application of these guiding principles to the current facts are that Murrison
made repeated assertions of her right to silence, and also indicated that she wanted to go
back to her cell. She became distressed when Constable Packer persisted to question her,
and began to ask for her partner in a plea of desperation. Packer then used that opportunity
12 Ibid, para 28
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to make a deal with her for a confession, rendering her confession involuntary based on
inducement on top of ignoring her rights to silence.

Please advise if you require anything further with respect to this manner. Thank you.

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