HER MAJESTY THE QUEEN - v. -, 2003 ABQB 283

R. v. Wiegand, 2003 ABQB 283 Date: 2003 04 01 Action No. 016133381 Q1 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF CALGARY BETWEEN: HER MAJESTY THE QUEEN - and - KARL HEINZ WIEGAND _______________________________________________________ RULING of the HONOURABLE MR. JUSTICE W. P. SULLIVAN _______________________________________________________ INTRODUCTION [ 1 ] This Ruling deals with the admissibility of a statement given by the accused, while under arrest, to a detective of the Calgary City Police. The facts are as follows.

On March 2, 2001 at about 5:30 a.m., the occupants of the upstairs portion of an up/down duplex were awakened by a loud banging sound and the smell of smoke. The Calgary Fire Department was called and responded to the scene at 5:46 a.m. They knocked down the door and put out the fire. Subsequently, two Calgary Fire Fighters crawling on their hands and knees through the basement apartment in the dark, located the accused, roused him and carried him out of the residence. The accused was transported to the Foothills Hospital by ambulance.

On arrival at the hospital, the attending staff noted that his nose hair, eyebrows, eyelashes and hair were singed and that he had soot in his mouth. The accused was alert on admission as to who he was, the place and time and could answer all questions.

[ 2 ] At 6:08 a.m. of the same morning, Captain Noblett of the Calgary Fire Department arrived at the scene of the fire and began an investigation of the fire. He determined that this fire was not accidental, and he alerted the Arson Unit of the Calgary City Police and Fire Department to attend at the scene. Captain Noblett was clear in his evidence that there had been tampering with the gas supply to the furnace in the residence, which caused the explosion and resulting fire. [ 3 ] At 7:30 a.m., Detective Dooks with the Calgary City Police Arson Unit attended at the scene of the fire.

He completed a visual examination of the residence and at that time believed that the accused was a “victim”. At 8:45 a.m. Det. Dooks attended at the Emergency Department of the Calgary Foothills Hospital. He noted on the person of the accused traces of singed hair on the head and eyebrows. He was in plain clothes and shortly thereafter left the hospital. At 11:30 a.m. he returned to the residence and continued his investigation. He found two large green garbage containers in the alleyway behind the residence, and when he lifted out the garbage bags in the garbage containers, Det.

Dooks found a shopping bag at the bottom of one. Inside that shopping bag were two wrenches - one 12" pipe wrench and one 12" crescent wrench - and torn pieces of mail addressed to the accused. He completed a re-examination of the scene of the fire, finding no fingerprints. Det. Dooks removed pieces of pipe that conducts gas to the furnace. [ 4 ] At 3:10 p.m., Det. Dooks returned to the Foothills Hospital with Lieutenant Lorne of the Calgary Fire Department. The accused was in a semi-private room at this time. Det. Dooks still believed that the accused was a victim and asked the accused what had happened.

The accused related to him a story regarding his actions on the previous evening, of attending a few local bars and having an orange/vodka mix drink later at home before he fell asleep on the couch in his apartment. The accused told Det. Dooks that he didn’t know what happened and gave his consent for his face to be photographed. [ 5 ] On March 3, 2001, at 7:30 am Det. Dooks attended the Arson Office to continue his investigation, at 11:20 a.m. he returned to the residence, and at 12:30 p.m. returned to visit the accused at the hospital.

At some time during this day, the detective decided that the accused should be considered a suspect in the suspicious fire. On Sunday, March 4, 2001 Det. Dooks was advised that the accused would be released from the hospital that day. At 4:00 p.m. he was advised that the accused was ready for release and Det. Dooks attended at the hospital at 4:15 p.m. to pick up the accused. At 4:32 p.m. the accused and the detective left the hospital. The conversation between the accused and the detective was recorded on audio. [ 6 ] At that time, Det.

Dooks advised the accused that he wanted to talk to him for a few minutes about the fire. He advised the accused that the investigation so far indicated that it was not an accidental fire and that it was intentionally caused. The detective then advised the accused: DET DOOKS: It’s either somebody who was trying to kill everybody or somebody who was just trying to send a message. That’s what I’m trying to determine... Karl, umm, we’ve done our investigation there, okay. Ah, we found the tools that were used to disconnect the gas line, okay? And because of that, I’m going to place you under arrest, okay?

Now, I’m interested in hearing your side of the story. Det. Dooks also advised the accused of his right to retain and instruct counsel without delay: DET DOOKS: Because of that: You have the right to retain and instruct counsel without delay. This means that before we proceed with our investigation, you may call any lawyer you wish or get free legal advise from duty counsel immediately. If you want to call duty counsel, we will provide you with a telephone and telephone numbers. If you wish to contact any other lawyer, a telephone and telephone book will be – MR. WIEGAND: Will I need one? Is it this bad?

DET DOOKS: Ah, it’s – I think you should call a lawyer. . . .

DET DOOKS: The tools, the wrenches that were used to disconnect the gas lines, okay? As I said, if you don’t want to talk to me, I understand that. You should call, call a lawyer. MR. WIEGAND: (INDISCERNIBLE) I’ll talk to you (INDISCERNIBLE) I have nothing to hide that I know of (INDISCERNIBLE) . . . MR. WIEGAND: To my knowledge I didn’t do a damn thing. And I wasn’t (INDISCERNIBLE) DET DOOKS: no, I don’t think so. [ 7 ] At 4:47 p.m. of March 4, 2003, Det. Dooks and the accused attended at the Andrew Davidson Building in downtown Calgary.

The accused was again advised that he was under arrest for arson, advised of his rights, and advised of his right to duty counsel. The conversation that occurred between the detective and the accused was recorded on audio and video tape. At 5:03 p.m., it was confirmed that the accused understood his waiver, at 5:08 p.m. he phoned a lawyer, and at 7:33 p.m. the interview was completed. Det.

Dooks testified that the accused understood that he was a police officer, that he had made no threats and no promises to the accused, and that the accused had an emotional reaction at the completion or towards the end of the interview. [ 8 ] After the accused had spoken with his lawyer and after Det. Dooks had re-advised the accused that he was being charged with arson, the detective asked the accused to tell him everything he knew about the fire and the detective began by explaining to the accused what the police investigation had revealed: DET DOOKS: Trying to. I try to treat everybody fairly and equally.

I treat you whether you’re an accused or a witness. I treat everybody the same way. Okay? That’s just my demeanour. When we got called to the fire, I was told when I first got there by the constable, that you had been transported to the hospital. Okay? That’s what I was told when I got there. I then conducted an investigation at the residence. What I learned was, was that’s a, a bungalow- type house. You rent the basement, the other people rent the upstairs. Okay? The people who were upstairs, ah, tell me what, what happened.

And they say that around 5:30 in the morning, they heard a big bang, an explosion-like sound, okay? Immediately right after that, they could smell smoke, they realized the house was on fire, they called the fire department. The fire department came to the house, put out the fire, searched the basement, and that’s when you met the firemen. The two firemen then took you outside and took you to the ambulance and, of course, the ambulance took you to the hospital.

Ah, I talked to the, the firemen and they tell me that they found you on the couch in your living room there and they found you with a blanket over yourself, you were covered over with a blanket, probably ‘cause the smoke was pretty thick, eh? Okay? MR. K. WIEGAND: Okay.

DET DOOKS: Okay. The, umm, we conducted our examination at the scene there, at the furnace room, and we found that the gas line was disconnected. So it was quite apparent that somebody had disconnected the gas line. At that point it makes us somewhat suspicious and we’re trying to determine whether there was a person that was trying to scare somebody, or there was a person that was trying to commit suicide, or do we have somebody who is trying to kill other people in the house? And a couple of theories.

Umm, of course, the worst-case scenario is that it was a murder-suicide, someone’s going to kill the people upstairs and commit suicide themselves. Umm, I don’t think that’s the case here. The second-case scenario is that somebody was just gonna disconnect the line and set the place on fire just to be vindictive. I’m not so certain that that’s the, the theory either.

DET DOOKS: However, I think something that’s quite plausible is, is that someone disconnected the gas line or, more specifically, you disconnected the gas line, ah, just to cause some panic in the house because I think you felt you were being evicted improperly. And I know that you, you had told the landlord that you were moving out at the end of the month. You haven’t paid your February rent, have you? DET DOOKS: Okay.

So, the next thing that happened Karl, was when I, I came to the hospital to see you the first time, ah, when you were in the emergency ward there, umm, I noticed that your eye brows were all burnt. DET DOOKS: Okay. That can only happen in one way. I’ve, ah, done that quite a few times myself. And that’s to be in a room where there’s a sudden flash of flame. DET DOOKS: – Saturday night, Friday night. So that causes me – or shows to me that you were in the, in the basement there when the fire was set.

Now, what I don’t understand is, was it caused – did you discover something and it was accidental and you tried to put it out? DET DOOKS: The next thing, Karl, is that I found your wrenches. DET DOOKS: Sure. So you know what these things are, don’t you? MR. K. WIEGAND: Those are marks from a pipe wrench. DET DOOKS: So . . . So these markings can be matched up to the – your pipe wrench and your crescent wrench. That’s where the, the gas line was disconnected from.

MR. K. WIEGAND: Well, my pipe wrench and my crescent wrench, my pipe wrench and my crescent wrench, they were wrapped in plastic bags. It could be that those (INDISCERNIBLE)insurance were in there, I put it all together because I were getting ready for moving. DET DOOKS: Then you would think things on the couch would be also singed. MR. K. WIEGAND: Could be. DET DOOKS: They’re not singed. ANALYSIS Jurisprudence on the Voluntariness of a Confession [9] In R v. Stevens (2001) 2001 ABQB 340 , 291 A.R. 40, I reviewed the issue of voluntariness as follows: 2) Voluntariness of Statements (

A) Context [56] According to Oickle 2000 SCC 38 , [2000 2 S.C.R. 3], under the confessions rule the trial judge must, in a contextualanalysis, address the issues of whether or not: 1) the statements were given in the absence of violence, threats and promises by the authorities: Ibrahim v. The King , [1914] A.C. 599(P.C.); R v. Hebert , (SCC), [1990] 2 S.C.R. 151; (2) there existed an atmosphere of oppression sufficient to raise a reasonable doubt as to the accused person's will: Oickle ; (3) the authorities engaged in trickery; and (4) the necessary mental element exists, i.e., "operating mind" doctrine: Ward v.

The Queen , (SCC), [1979] 2 S.C.R.30; R v. Horvath , (SCC), [1979] 2 S.C.R. 376; R v. Whittle , (SCC), [1994] 2 S.C.R. 914. [57] I must answer the question of whether or not any of these factors, standing alone or in combination, raise a reasonable doubt as tothe voluntariness of the confession: R v. Carpenter 2001 BCCA 31 , [2001] B.C.J. No. 95 (B.C.C.A.); [2001] B.C.C.A. 31 atpara. 63. The burden under the confessions rule is placed on the Crown to prove beyond a reasonable doubt that the statements weremade voluntarily. A violation of the confessions rule always results in exclusion: Oickle at 340 (C.C.C.).

I must analyze thevoluntariness of the statements by Tkachuk and Stevens in the totality of the circumstances: Oickle at 345.

The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness,this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. The application ofthe rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate thevoluntariness of a confession, and would inevitably result in a rule that would be over- and under-inclusive.

A trial judge shouldtherefore consider all the relevant factors when reviewing a confession. [58] If I am able to find beyond a reasonable doubt that the accused, in the totality of the circumstances, gave voluntarily statements, Iam correspondingly finding that there is no breach under s.7 of the Charter . ...[I]n R v. Hebert , (SCC), [1990] 2 S.C.R. 151 the court held that the right to silence is based on an appellant's right tochoose whether or not to make a statement, and that violation of s.7 occurs only when the Crown's agents act to subvert the appellant'sright to choose.

In my opinion, the trial judge's finding that the appellant gave his statement free of any improper inducement istantamount to concluding that the Hebert test has been met: R v. Carpenter 2001 BCCA 31 , [2001] B.C.J. No. 95 (B.C.C.A.) atpara. 71. (

B) Respect for Investigation Techniques [59] In assessing voluntariness I must be aware of the need for police to investigate crimes through the use of interviews. Under propercircumstances police interviews are an integral and important part of solving crime. The rights of the accused are paramount, however,the court cannot ignore the importance of police investigative techniques particularly given the seriousness of offences such as firstdegree murder. In

summary, courts must remember that the police may offer some kind of inducement to the suspect to obtain a confession. Fewsuspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that itis in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combinationwith other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point Ifound the following passage from R v. Rennie (1981), 74 Cr. App.

R. 207 (C.A.), at p. 212, particularly apt: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an earlyadmission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even ifprompted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confessionwould be rendered inadmissible. This is not the law. In some cases the hope may be self-generated.

If so, it is irrelevant, even if itprovides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said ordone by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or doneby such a person. There can be few prisoners who are firmly but fairly questioned in a police station to whom it does not occur that theymight be able to bring both their interrogation and their detention to an earlier end by confession. Oickle at 349. (

C) Appeals to Conscience [60] While threats of torture or violence are obvious examples of violations of the confessions rule, other acts or statements byauthorities must be considered in the totality of the circumstances. Oickle refers to the following examples of when a contextual analysismay or may not result in an infringement: offers of psychiatric assistance or other counselling: see R v. Ewert (1991), (BC CA), 68 C.C.C. (3d) 207 (B.C.C.A.); or, threats or promises not aimed directly at the suspect: see R v. Jackson (1977), (BC CA), 34 C.C.C. (2d) 35 (B.C.C.A.).

What is clear is that the use of moral or spiritual inducements cannot violate theconfessions rule by virtue of the fact that the authorities have no control over the accused's conscience. In other words, there is no quidpro quo: Oickle at 349. (

D) Oppression

[61] Oppression is just one of the many factors which may adversely affect the voluntariness of a statement: Oickle at 351. As with allassessments under the confessions rule the court must assess the existence or absence of oppression in the totality of the circumstances.The circumstances which may give rise to oppression cannot be enumerated.

The Court in Oickle offered the following guidance forconsideration by trial judges: "Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food,clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for aprolonged period of time." Oickle at 351. [62] The running concern when addressing the issue of oppression is the inhumane quality associated with the treatment of the accused.The conditions are such that the accused is subjected to offensive circumstances such that he or she will make a statement simply toalleviate the mental, physical and/or emotional suffering. “Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions." Oickleat 350-1.

"If a person is subjected to inhumane conditions, such that they confess purely out of desire to escape those conditions, then the resultingconfession will not be voluntary.": Morrissey, at ¶ 30 referring to R v. Hoilett (1999), (ON CA), 136 C.C.C. (3d) 449(Ont.C.A.) [63] Oppression can be subtle or overt and like all factors considered in assessing voluntariness, the context of the situation must beappreciated. [10] These same issues were considered by the Ontario Court of Appeal in R v.

Moore-McFarlane (2001) (ONCA), 56 O.R. (3d) 737; 160 C.C.C. (3d) 493: [54] The rationale for the rule and its scope have been recently reiterated by the Supreme Court of Canada in R v. Hodgson (1998), (SCC), 127 C.C.C. (3d) 449 and R. v. Oickle (2000), 2000 SCC 38 , 147 C.C.C. (3d) 321. In Hodgson, Cory J.,writing for the majority of the Court, reviewed the historical rationale for the rule and its significance in these words (at paras. 14 and 15,p. 460): Evidence of a confession has always been accorded great weight by triers of fact. This is a natural manifestation of human experience.

Itis because of the tremendous significance attributed to confessions and the innate realization that they could be obtained by impropermeans that the circumstances surrounding a confession have for centuries been carefully scrutinized to determine whether it should beadmitted. A confession is not excluded, however, simply because of the risk that a conviction may result, but because of the greater riskthat the conviction will be unfairly obtained and unjust.

The unfairness of admitting a confession has historically been addressed by aconsideration of two factors, First, the voluntariness of the statement; and second, the status of the receiver of the statement, that is tosay, whether the receiver was a person in authority. [Emphasis added.] As to the first factor, a statement is said to be voluntary when it is made without “fear of prejudice or hope of advantage”: [citationsomitted]. In Boudreau v. The King (SCC), [1949] S.C.R. 262 at p. 269, Rand J. explained that “the rule is directedagainst the danger of improperly instigated or induced or coerced admission”.

Voluntariness also requires that the statement must be theproduct of an operating mind: [citations omitted]. Voluntariness is determined by a careful investigation of the circumstancessurrounding the statement of the accused, and involves a consideration of both objective and subjective factors. [Emphasis added.] [55] Cory J. went on to discuss how the confessions rule is historically rooted in two concerns. The first concern related to the reliabilityof the evidence. He stated (at para. 17, p. 461):

Indeed, the basis for the admission of a statement of the accused as an exception to the rule against hearsay is that what people freely say which is contrary to their interest is probably true. However, where a statement is prompted by a threat or inducement held out by a person in authority, it can no longer be presumed to be true. [56] Cory, J. noted that the second concern is related to the administration of justice and fundamental principles of fairness, in particular the principle against self-incrimination.

After reviewing further authorities, Cory J. observed (at para. 18, pp 461-62): Thus, it is apparent that from its very inception, the confessions rule was designed not only to ensure the reliability of the confession, but also to guarantee fundamental fairness in the criminal process. [ 11 ] Justice Charron of the Ontario Court of Appeal went on at para 57 of Moore-McFarlane : He noted that this latter approach is most evidenced in the “operating mind” doctrine that concerns itself with the coercive effect an atmosphere of oppression created by the police authorities may have on an accused.

Iacobucci J. reiterated that one of the predominant reasons for the concern with voluntariness, broadly defined, “is that involuntary confessions are most likely to be unreliable” (para. 32, p. 341). [ 12 ] In Moore- McFarlane the Ontario Court of Appeal was very concerned with the issue of trial fairness. They found that there were two components (see para 58) and they found that the concept of “operating mind” is closely related to the predominant concern for reliability.... “the reliability of the evidence is intrinsically connected to trial fairness”.

The Court went on to say at Para. 59: The concern over fairness extends not only to the potential unfairness caused by the admission of the evidence at the trial itself, but also to the protection of the accused’s rights during the investigative process. This has to be balanced with the interest of society regarding the effective and efficient investigation of unsolved crime.

They conclude with this at Para. 60: Hence, it is only consonant with the general principled approach to hearsay exceptions that the court, as part of its inquiry into the voluntariness of a confession, should look for circumstantial guarantees of trustworthiness that sufficiently address the dangers associated by this kind of evidence. Application to the Present Case [ 13 ] In this case, we have the full video of the officer’s conduct and contact with the accused from 5:00 p.m. through to 7:33 p.m. on the day of the interview in addition to a transcript.

As in Stevens and Moore-McFarlane , I must be satisfied that before a statement made by an accused will be admitted, it must be proven beyond a reasonable doubt by the Crown that it was voluntarily given to the person in authority.

It is my ruling, based on the evidence adduced at the voir dire, that there are sufficient concerns raised so that I am not satisfied that the test has been met and therefore the confession should be excluded. [ 14 ] In Stevens , supra, I determined that although there were some items that raised concerns in the manner of their interrogation, Stevens’ and Tkachuk’s confessions were voluntary.

However, several things in this case are markedly different than in the Stevens case. [ 15 ] The Supreme Court of Canada in Oickle elucidated four issues that must be examined in determining whether a statement was voluntarily made by an accused: 1) the statements were given in the absence of threats, promises or actual violence by the authorities

2) there was no atmosphere of oppression that would raise a reasonable doubt as to the accused’s free will to make the statement 3) the authorities engaged in trickery 4) the accused had the necessary mental element of an “operating mind”. If any one of these factors standing alone, or if a combination of these factors together, raises a reasonable doubt as to the voluntariness of the confession then the common law confession rule will be violated and the statement will be excluded ( Stevens at Para 57 ; Oickle at P. 340 of C.C.C.).

Threats, Promises, or Actual Violence [ 16 ] In the case at bar, there is no indication that Wiegand’s confession was given because of threats, promises or actual violence against the accused by the authorities. However, there are several instances during the interrogation of Wiegand that raises points of concerns on oppression, trickery by the authorities, and whether the accused had an operating mind. Appeals to Conscience or Oppression [ 17 ] One notable instance for concern is when Det.

Dooks speaks about the accused’s daughter because it goes beyond a mere attempt to call on the accused’s conscience to confess in the interests of himself or his daughter and appears to actually attempt to exploit the daughter to get the accused to confess. As I mention at Para. 67 of Stevens : The court must assess (

a) whether there was a threat or promise to another individual with a significant connection to the accused; and (

b) whether the threat or promise itself is significant keeping in mind the need for police to engage in proper investigative interviews. [ 18 ] There is a general discussion between Det. Dooks and the accused that the entire fire may have been a suicide attempt between Pages 35 and 47 of the transcript: DET DOOKS: The second reasonable thing is to think that this was a, a suicide attempt. . . . MR. WIEGAND: Oh, come on. If, if I want to do this, I mean, I, I know how to do it, I know, I mean, I know how to disconnect a gas line and I know, I mean, I wouldn’t do it, but I know how to do it.

Not every idiot knows how to do it, but this I do, open the gas line there’s dick all to it. DET DOOKS: Well, that’s - - I, I would like to believe that. Umm, in the back of my mind, I would like to believe that the fire was accidental. But I don’t, I, I have nothing to prove that. That’s my problem. DET DOOKS: - - you’re an important person too, okay? And there’s, there’s - - it’s not a dirty word, but it’s something - - okay, it’s not.

But sometimes people get, get so upset with, with things happening in your life, I know you don’t have a job, that you’re in between payments right now, you don’t have money to support yourself, you’re being evicted, you don’t have a place to go, people get depressed.

The effect on the accused that merely mentioning his daughter and ex-wife in the context of a suicide attempt was clear: DET DOOKS: I know how things are going with your ex-wife and your daughter. And it’s not - - it could be better, a lot worse. MR. K. WIEGAND: I’m not in the shape that I’m, ah, that I have to commit suici’ - - and this wasn’t, and this wasn’t, no, that would be the worst thing I could do for my daughter. DET DOOKS: Yeah, okay. MR. K. WIEGAND: She’s, ah, now in, in high school, she has hard enough time. DET DOOKS: Yeah MR. K. WIEGAND: She doesn’t need a father commit suicide. DET DOOKS: Good.

MR. K. WIEGAND: Or murder someone I would imagine even worse. [ 19 ] It would appear that the detective identified leverage in the accused’s concern not to hurt his daughter by causing her mental anguish and utilized it later in the interview when he said at page 64 of the transcript “What am I gonna tell your daughter? I want to explain to her that you’re under arrest and I want to explain to her the evidence, I want to explain to her what I found, what happened.

You know as well as I do, she’s not going to buy this story....”. [ 20 ] There was no legal requirement for the detective to speak with the accused’s daughter since she was not a material witness and lived at a wholly different address from the scene of the fire. Further, even if the police needed to speak to the daughter about the character and general mental state of her father, there was certainly no legal requirement to discuss the specifics of the case with her.

Consequently, it would almost appear that the officer was threatening to talk with the daughter and tell her the facts that paint a picture of suicide unless the accused confessed and gave a better story to tell the daughter (one which the officer suggested on multiple occasions that this was an “accidental fire”). This is a subtle form of oppression against the accused that could result in the accused’s free will being overborne. Nevertheless, standing alone these references to his child do not raise a reasonable doubt as to the voluntariness of the accused’s statement.

However, it is one piece of a puzzle that does raise concerns over how this interview was conducted. Police Trickery [ 21 ] I concluded in Stevens at Para 72 that: It is not illegal to confront an accused with facts that are already known to the police at the time of the interview. There is no threat implicit or explicit.

On several occasions during the accused’s interview, the detective mentioned facts that the police had already established such as: (1) the gas pipe had been removed (Page 8 of the transcript); (2) the accused’s facial hair was burned from a flash (Page 12 of the transcript); markings left on the gas pipe could be matched to wrenches that could be connected with the accused (Page 15 of the transcript); and the couch the accused was lying on was not singed though the accused’s facial hair was (Page 32 of the transcript).

These would not raise a reasonable doubt as to the voluntariness of the accused’s statement because they were mere recitations of facts known to the detective. However, the detective then engaged in police trickery on two different instances. [ 22 ] First, the detective led the accused to believe they found the accused’s print on the circuit breakers and that this was highly incriminating (no prints were found). The detective said at page 59 and 60 of the transcript: DET DOOKS: You know the electrical panel in the, in the furnace room? MR. K. WIEGAND: Oh, was, ah, I think it’s over the dryer, yeah.

DET DOOKS: Yeah, the breakers. MR. K. WIEGAND: Yeah. DET DOOKS: Can you tell me why your finger prints would be on those breaker switches? ... DET DOOKS: Can you tell me why your finger prints would be on that\ switch? The breaker boxes were in the basement where the accused, over the period of the months that he lived there, might have had ample opportunity to touch the breaker boxes or have contact with them.

As such, the accused’s fingerprints on them were not as incriminating as the detective was implying. [ 23 ] Second, the detective confronted the accused with a lie as to when and how the wrenches got into the garbage cans by the apartment. The detective makes this statement to the accused on page 69: DET DOOKS: Okay. Can you tell me why one of your neighbours, okay, would see you putting the tools in the garbage can in the back alley? How do you think we found them? MR. K. WIEGAND: The neighbour say he put the tools in the garbage can in the back alley. Man. DET DOOKS: Just before the fire?

MR. K. WIEGAND: I don’t know. MR. K. WIEGAND: I don’t know. I don’t know because I wasn’t in the alley before the fire. DET DOOKS: Who are you trying to convince here? The statement by the detective that a neighbour had seen the accused place the tools in the garbage can was a sheer fabrication. After all of this, the accused was becoming very confused and suspected some sort of trickery when he says: MR. K. WIEGAND: You don’t believe me and I, I don’t blame you not to believe me, so I can’t blame you at this point, and this is, it’s so fucking tricky , I don’t know. I don’t know how I got in shit like this .

I (INDISCERNIBLE) and I know it can happen.... [Emphasis Added] DET DOOKS: Okay, Karl, I, ah, I’m not going to waste my time anymore. You don’t want to tell me the truth. MR. K. WIEGAND: You can hang me on lie detector, whatever, I don’t know, whatever you have to do. DET DOOKS: What’s the point of a lie detector? MR. K. WIEGAND: Well - - DET DOOKS: I already know you’re lying . . .

The accused is more than willing to take the lie detector test because he believes he is telling the truth and that the lie detector will verify that he was not in the alley just prior to the fire. [ 24 ] This very point of using fabricated evidence was considered by Mr. Justice Iacobucci in Oickle where he said at Para. 43: 43. Another theme is the danger of using non-existent evidence.

Presenting a suspect with entirely fabricated evidence has the potential either to persuade the susceptible suspect that he did indeed commit the crime, or at least to convince the suspect that any protestations of innocence are futile. Justice Iacobucci went on to say at paragraph 61:

61. A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions, supra, revealed, this ploy is very dangerous: see Ofshe & Leo (1997a), supra, at pp. 1040-41; Ofshe & Leo (1997), supra, at p. 202. The use of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not mean to suggest in any way, that standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds for excluding a statement.

However, when combined with other factors, it is certainly a relevant consideration in determining on a voir dire whether a confession was voluntary. [ 25 ] Although each of these representations to the accused was not true, standing alone they do not constitute police trickery to such an extent as to warrant exclusion of the statement. However, they are further elements that contributes to such a finding when examining the whole of the circumstances. Operating Mind [ 26 ] Shortly after falsely telling the accused there was a witness against him, the detective then says at page 72: MR. K.

WIEGAND: But why, why, would I take this damn bloody pipe apart? DET DOOKS: That’s what I’m asking you. Why? MR. K. WIEGAND: I’m afraid (INDISCERNIBLE), I don’t know, I - DET DOOKS: Yes, you’re gonna - - DET DOOKS: you’re gonna be charged for, for what happened here. But what I have to – what has to be explained to the court is why it happened, what your intentions were. Those are big issues.... DET. DOOKS: Right. What scares me is that you, you ‘re not sorry about what happened. That’s what I’m really scared about here.

You planned, the case that I’m going to present to the court is you deliberately planned everything right out. I’ve got no other option but to present that to the court .

How you deliberately planned everything out and now I’m talking to you now, we’ve eliminated the drunken defence, we’ve eliminated the suicide attempt, we’ve eliminated the mystery person, and so now what I’m faced with the conclusion is you deliberately took the gas line apart, you deliberately concealed the tools that were used to do it so they wouldn’t be found inside your apartment during the fire. [Emphasis added] Shortly thereafter at page 75, line 22-23 the detective says this to the accused: “This is an attempted murder.” And, again at page 76 “you put three peoples’ lives, including yourself, in, at risk.

You’ve tried to murder two people.”

[27] Clearly, the detective is painting a picture in the accused’s mind that, notwithstanding that there were reasonable explanationsfor how his fingerprints got on the circuit breaker and that there was no eyewitness who had observed him putting tools in the garbagecans on the morning of the fire, false evidence would be presented to the court and that the court would believe it. In the accused’s mindit was quickly becoming clear that as Mr. Justice Iacobucci put it, his “protestations of innocence are futile”. [28] At this point in the interview Wiegand confessed that beginning the fire was an accident.

In essence this was the only optionthat had been left to him by the detective.

The sequence of questioning during the interview, the detective’s statements which weremisleading or deliberate lies, and the implication that the sequence of events that the detective has put before the accused (that it wasdeliberately planned) will be put to the court raises great concerns. [29] In the accused’s mind it must have appeared that he was being implicated as the perpetrator of the arson, that a neighbour, oran individual identified as a neighbour, was conspiring with the police to lie (because the accused knew that he had not put the wrenchesin the garbage can shortly before the fire in the morning of the 2nd of March), that this evidence was unfairly going to be put to the court,and that he was not going to receive a fair trial.

The person speaking to him was a person in authority. The accused was of Germanancestry and spoke with broken English and an immigrant to the country of less than 20 years. [30] The Supreme Court noted at Para. 63 of Oickle that an accused will not have an operating mind, such that any statementsmade by him are inadmissible, if they are “not voluntary in the ordinary English sense of the word because they were induced by othercircumstances”.

Only where the accused understood what he was saying and there were no other circumstances for him to make such aconfession will it be voluntary. [31] I find that as a result of the impression the accused had that it was futile to continue his protestations of innocence combinedwith the detective’s references to the case that was going to be put to the court, the accused did not have an operating mind at the time hegave his statement since circumstances other than voluntariness could as easily have motivated the confession. [32] It is clear that the detective engaged in police trickery and that this trickery did rob the accused of an operating mind.However, the Supreme Court of Canada has stated that some degree of police trickery is tolerable or even necessary in ensuring effectiveinvestigation of crime.

Only if such police trickery goes to such an extreme that would appal the public will it be curtailed. As JusticeIacobucci notes at Para. 66 of Oickle: 66. Lamer, J. was also quick to point out that courts should be wary not to unduly limit police discretion (at p. 697): [T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquees of Queensbury rules. Theauthorities, in dealing with shrewd and often sophisticated criminals, must sometimes out of necessity resort to tricks or other forms ofdeceit and should not through the rule be hampered in their work.

What should be repressed vigorously is conduct on their part thatshocks the community. [Emphasis in Oickle.] As examples of what might “shock the community”, Lamer, J. suggested a police officer pretending to be a chaplain or a legal aidlawyer, or injecting truth serum into a diabetic under the pretense that it was insulin. Lamer, J.’s discussion on this point was adopted bythe Court in Collins, supra, at pp.286-87; see also R. v. Clot (1982), (QC CS), 69 C.C.C. (2d) 349 (Que. Sup.

Ct). [33] The conduct of the investigating detective in securing the accused’s confession was such that it would shock the community.The detective’s comments regarding the accused’s daughter, the misleading or fabricated statements concerning the evidence, and thesuggestion that a fabricated negative case against the accused would be put to the court all reinforce the outrage that would be felt in thecommunity. [34] Standing alone no single instance of trickery or oppression would be sufficient to exclude the confession made by theaccused.

However, when the entire situation is looked at and each questionable incidence or circumstance of the interview is added to thelast, it raises a reasonable doubt with respect to the voluntariness of the accused’s confession. Consequently, I declare the statements

made by the accused to be inadmissible. HEARD on the 12 th day of February, 2003. DATED at Calgary, Alberta this 1 st day of April , 2003. __________________________ J.C.Q.B.A.