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R. v. N.B.

Charges:

1) Attempted Murder;

2) Assault Causing Bodily Harm;

3) Assault Peace Officer;

4) Carry Concealed Weapon;

5) Possession of Weapons Dangerous to the Public Peace (2x)

The client was on his way home from work. He decided to make a stop at a police division. He entered the police division holding a sledge hammer. He also had an exacto knife in his pocket.

The client swung the sledge hammer striking the head of a police officer standing in front of the reception counter. This police officer suffered a head injury. Another police officer standing behind the counter grabbed the client and pulled him over the counter as the client himself was attempting to jump over the counter. This police officer suffered a minor injury.

The client was brought under control, possibly by most of the police officers that were in attendance at the police division. He was handcuffed. He was not immediately advised of the reason for his arrest or that he had a right to retain and instruct counsel. He was not cautioned. As he was being escorted to the booking hall by two police officers, he was asked questions by one of two police officers. The client answered the questions and provided inculpatory information.

The client eventually was advised of his right to counsel and he asked to speak to his father who would assist him in contacting a lawyer. This never occurred.

Several hours later, the client was interrogated by two detectives to whom he provided a more detailed inculpatory statement.

Prior to the commencement of his trial in the Superior Court of Justice before a Judge sitting with a jury, I was successful in having the two inculpatory statements excluded from the evidence on the basis that the client's right to retain and instruct counsel, as guaranteed by Section 10(b) of the Charter, had been violated. The police first violated the client's right to counsel when a police officer asked him a question while they were on their way to the booking hall prior to the client being advised of his right to counsel and prior to being cautioned. The police then violated the client's right to counsel by ignoring or forgetting about the fact that he wanted to speak to his father who would assist him in contacting a lawyer. Both inculpatory statements were excluded from the evidence as a result of the breach of the client's right to counsel. The presiding Judge also had some concern regarding the voluntariness of the client's statements to the police.

The client's trial was completed before a Judge sitting with a jury. The jury found the client not guilty of the attempted murder of a police officer.

The client was found guilty of two counts of assault causing bodily harm, one count of assault with a weapon, one count of assaulting a peace officer, one count of carrying a concealed weapon and two counts of possession of a weapon dangerous to the public peace.

The client had been in pre-trial custody for approximately 2 ½ years. He was sentenced to a further 18 months in jail.

What is significant about this case is that although the exclusion of the client's two inculpatory statements weakened the Crown's case, the Crown's case remained relatively strong. It is very difficult to explain to a jury why someone would enter into a police division and swing a sledge hammer at the head of a police officer if the intent was not to kill that police officer. The client did not testify in his own defence, nor did I call any other evidence. I was able to convince the jury that they should draw a reasonable inference that there was another intent other than the intent to kill. In short, a person who enters a police division with a sledge hammer and swings at the head of a police officer may have the intent not to kill the police officer, but to be himself killed. In other words, the client may have simply been wanting to commit "suicide by cop". Obviously, the jury agreed and found the client not guilty of attempted murder of a police officer. If the client had been found guilty of this offence, the Crown would have asked the presiding Judge to sentence him to a period of 18 years in a federal penitentiary.

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