R. v. Jackson, 2010 ABQB 738

Court of Queen ’ s Bench of Alberta Citation: R. v. Jackson, 2010 ABQB 738 Date: 20101126 Docket: 091082222Q1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - Anthony Gregory Jackson Accused Restriction on Publication: By Court Order, information that may identify the complainants must not be published in any document or broadcast in any manner. See the Criminal Code , s. 486(3), as amended by RSC 1985 c 27 (1 st Supp), s 14 . _______________________________________________________ Ruling on Voir Dire of the Honourable Mr. Justice W.A.

Tilleman _______________________________________________________ Introduction [ 1 ] This case involves allegations of an incident that took place 15 years ago, in December 1995. Last year, on August 17, 2009,

R.B., the Complainant, attended the St. Paul, Alberta R.C.M.P. detachment and alleged the Accused tried to get her to touch him sexually one evening contrary to s. 152 of the Criminal Code . [ 2 ] The Crown seeks to introduce a videotaped statement taken by RCMP Cst. Wiebe, of Mr. Anthony Jackson (Accused). The interview took place at the St. Paul, Alberta R.C.M.P. detachment on August 19, 2009. One day previous to that, the Accused was picked up intoxicated, and placed in a cell to sleep it off. The next morning the interview would begin.

Summary of Constable Wiebe ’s Evidence and The Videotaped Evidence [ 3 ] Cst. Wiebe began the interview by reminding the Accused, he had already been read his rights, and that anything the Accused said could be used in evidence against him. [ 4 ] Also at the beginning of the interview, Cst. Wiebe inquired as to whether the Accused had spoken to a lawyer. Initially the Accused said he had “...nothing to say,” to which the Constable said: “we’re gonna talk regardless”... followed shortly by: “...sit up and look at me.

Quit hiding behind your hair”. [ 5 ] Within the next page of the transcript the Accused said he had nothing to say, or words to that effect, 9 or 10 times.

And beyond that page, the Accused either said “no” or “nothing happened” or words similar to that, upwards of 30 times. [ 6 ] In describing the statements of two girls (the Complainant and her sister) the Constable told the Accused there were too many details (regarding the sexual incident) to make up such a story. [ 7 ] The Constable also suggested two types of liars to the Accused - the first who tries to hide things because he “...doesn’t give a shit”; and the second because “...he’s ashamed of what he’s done”.

The Constable went on to tell the Accused: “I’d like to think you’re the second kind of liar”. [ 8 ] The Accused repeatedly denied the statements or accusations, to which the Constable responded “this isn’t about jail time, cause that’s gonna be minimum”. [ 9 ] At some point into the interrogation (p.13/18) the Constable became totally frustrated when the Accused said this: “Well that’s my story and I’m sticking to it.

That’s the way it happened, nothing happened”. [ 10 ] After a pause, and while sitting back in his chair, with arms folded, the Constable suddenly leaned forward to the table, banged or slapped his hands on the table, and called the Accused a liar three times, with an commanding and suppressive voice: Cst. Wiebe: You’re a liar! Accused: Whatever. Cst. Wiebe: You’re a liar. Accused: I’m not. Cst. Wiebe: Yes, you are (emphasis of the exclamation mark as per original transcript, not mine)

[ 11 ] One page later in the transcript, the Accused said “Ok, it happened in the way it happened. Ok!”. Three pages later, with the Accused agreeing with parts of the Constable’s assertions, the interview was over. Voluntariness [ 12 ] It is trite law that a statement made to a person of authority like Cst. Wiebe, cannot be used as evidence unless the Crown proves beyond a reasonable doubt that the Accused made the statement freely and voluntarily. R. v.

Oickle , 2000 SCC 38 (CanLII) , [2000] 2 S.C.R. 3. [ 13 ] Voluntariness requires that the statement was not obtained by fear of prejudice or hope of advantage held out by Cst.

Wiebe, and the statement must be the product of an operating mind. [ 14 ] The Court is mindful that there are two goals in play here: (1) society’s need to investigate crimes, and (2) protecting the rights of the Accused. [ 15 ] Being almost entirely contextual, the factors I must consider before making my decision are: - threats or promises, - oppressions, - operating minds, and - trickery. [ 16 ] In considering these factors, I need to first decide if Constable Wiebe acted improperly, and if so, does his conduct, taken as a whole, i.e., in all of the circumstances, raise a reasonable doubt that the will of the Accused was overbourne.

Issue: Has the Crown Proven Beyond A Reasonable Doubt that Mr. Jackson ’s Videotaped Statement was Voluntary? Argument Crown [ 17 ] Arguing that the relevant law is Oickle (supra) and R. v. Singh , 2007 SCC 48 (CanLII) , [2007] 3 S.C.R. 405, the Crown properly told me the onus is on it to prove beyond a reasonable doubt the voluntariness of the statement. [ 18 ] The Crown argued the test was objective and that the Accused was not unique in a variety of different respects to change the test. [ 19 ] To its credit, the Crown did admit Cst.

Wiebe strayed “close to the line in three areas”: - discussing the potential release;

- discussing future options for sentence or jail; and - discussing or using the word “judge”. [ 20 ] Yet, the Crown stated none of the comments went over the line, by way of guarantees, jail-time numbers, or promises. Defence [ 21 ] Having filed a s.7 Charter notice, the defence argued the Accused did not have a meaningful choice (to speak to Cst. Wiebe or remain silent). Quoting several paragraphs of Singh [1] the Accused’s counsel told the court Mr.

Jackson did not speak, of his free will, to police. [ 22 ] Similarly, quoting several paragraphs of Oickle , [2] the defence argued, essentially, that any statements made to Cst. Wiebe were made on the basis of coercing, inducements, and threats; basically, that Cst. Wiebe was going to get a statement from this Accused no matter what. Analysis [ 23 ] I am going to place in context several quotes from the transcript (of the police interview) because after watching the video, I believe taken as a whole, the atmosphere was one of domination by Cst. Wiebe.

In quoting the transcript, I point out it is impossible to view the quotes alone without seeing certain behaviours of Cst. Wiebe on the videotape, and drawing the conclusions I have drawn. These are the quotes [AW = Cst. Wiebe, AJ = the Accused]: “AJ: Well that’s why I’m not saying anything. I have nothing to say. AW: Ok, that’s fine. We’re gonna talk regardless. So, in 1995, who was your spouse at the time? AJ: No comment. AW: Anthony sit up and look at me. Quit hiding behind your hair. AJ: I have nothing to say. That’s it. [...] AW.: Well that’s fine. You can listen to a lawyer. You can talk with me.

AJ: I have nothing to say my friend. [...] AW: And like I said, like I said, ah, you know exactly what happened. AJ: Nothing happened. And I know exactly what happened. AW: No you can be a man about this or you can hide...

AJ: Nothing happened. AW: ...the truth. And it’s gonna eat at you for the rest of your life. For eternity. AJ: What are they asking for. Are they gonna hold me or are they gonna release me or what? AW: I have to look at your criminal record first. That’s my decision. AJ: Are you gonna JP me or whatever? [...] AW: It’s not gonna be good in court, I’ll tell you that right now. You know there’s two kinds of, in my experience there’s two kinds of liers in this world. [...] AW: The reason I want to get to the truth and you’re gonna be seeing a bit of jail. AJ: I know.

AW: And the reason, that being said, you’re not going to jail for the rest of your life, you know what the system is like, you get a small jail terms but what it allows you to do. Is allows her to heal and it allows you to heal. And that’s what it’s all about. AJ: Uh-huh. AW: This isn’t about, this isn’t about jail time. Cause that’s gonna be minimum. You spent a fair amount of time in jail. It’s not gonna hurt that much. You get three squares a day and a roof over your head. For a little while. But the more important thing is the healing. AJ: Uh huh. AW: That’s the important thing. And you got to heal.

AJ: Well I am. I’m telling you the truth man. [...] AW: The best thing to do at this point is tell the truth and co-operate and be done with it. AJ: Nothing happened. AW: And just maybe the Judge ... just maybe the Judge might go light on you. You already admitted that she was in the room with no clothes on. AJ: Yeah, she came in there. [...] AW: Why would she take all her clothes off and come into your room?

AJ: I don’t know, beats me. AW: Anthony, the Judge is not gonna believe that, so tell the truth. AJ: I’m not telling nothing, that’s the truth. AW: No, it’s not. AJ: Yeah it is. AW: I’m not buying it and neither will the Judge. AJ: Well ....” [ 24 ] Though it is relevant contextually that the Accused did not want to say anything or otherwise made denials 3 dozen or so times, that alone does not fatally concern me because the Accused was charter -warned and was told not to speak to the police. He initially knew that he had the choice to speak or not. [ 25 ] What does concern me, principally, is two events of Cst.

Wiebe - first, his statement that “we’re gonna to talk regardless” at the very beginning of the interview; and second, the action and frustration of Cst. Wiebe slamming his hands on the table and calling the Accused a “liar” three times with a voice not only elevated but threatening. The interview was certainly not at that point, conducted in a courteous manner [3] . Because of his conduct, the environment was threatening. [ 26 ] I find as a fact Cst. Wiebe’s demeanor by slapping the table to be threatening to an accused who I find to be a simple and subservient man dominated conversationally by Cst. Wiebe.

I also find Cst. Wiebe, regardless of intention, would have continued the interview as long as it took to get a confession no matter how long. I realize the taped interview ended at 28 minutes but that is only because Cst. Wiebe’s behaviour and actions at the breaking point “slapping the table and calling the Accused a liar 3 times” resulted in the Accused’s ultimate confession.

Before reaching this conclusion, I examined that portion of the videotaped interview 3 times during trial and with Counsel present in the courtroom. [ 27 ] The combination of the above police behaviour plus the quotes from the transcript showing inducements, comments of judicial leniency which Cst. Wiebe could not guarantee nor did he qualify, raise a reasonable doubt as to the voluntariness of the Accused’s statement. Conclusion [ 28 ] The Crown did not prove the voluntariness of the statement of Mr. Jackson beyond a reasonable doubt and it will be excluded.

Heard on the 22 nd day of November, 2010 to the 26 th day of November, 2010. Dated at the City of St. Paul, Alberta this 26 th day of November, 2010.

W.A. Tilleman J.C.Q.B.A. Appearances: Leighton B. U. Grey, Q.C. for the Applicant Ken McDonald for the Crown [1] E.g., paras. 25, 29, 32, 36, 37, 47, 53. [2] E.g., paras. 47 through 67. [3] Her Majesty the Queen v. S.E.D ., 2009 ABCA 108 , 448 A.R. 351, para. 14 .