R v Varley, 2017 ABQB 776

Court of Queen’s Bench of Alberta Citation: R v Varley, 2017 ABQB 776 Date: 20171215 Docket: 150901734Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Robert Mark Varley Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation _______________________________________________________ [ 1 ] This decision was delivered orally during trial. The Court reserved the right to make editorial changes to arrive at this final form of the Judgment. [ 2 ] This is a decision in a voir dire .

The issue is whether a statement that the accused gave to the police is admissible into evidence at trial. The issues that were argued before me were whether the Crown could prove beyond a reasonable doubt that the statement was voluntary, and whether there was a violation of the accused's

section 10(

b) Charter rights.

1. Facts [ 3 ] The accused was advised he was under investigative detention for the offence of hit and run causing death, after the police located a car registered to his name, which they suspected was the car that had hit a woman the night before. The accused exercised his right to speak to counsel; and then two uniformed police officers, Detective Enright and Constable Vink, were in the interview room with the accused at all material times. [ 4 ] The facts that are important to this decision fall into three specific areas.

As there is some detail that is important to this decision, I am using direct quotes when I go through the factual part of this decision. [ 5 ] The three general areas are, firstly, the accused's statements: that he had been told by his counsel not to answer questions; secondly, the comments by Constable Vink about the accused's counsel; and thirdly, comments by Constable Vink about the judiciary.

The Accused's Statements about Answering Questions [ 6 ] Multiple times, at the start and during the questioning, until the comments the police made about his legal counsel, the accused was clear that he had been advised by his lawyer that he should not answer questions, and he did not wish to do so. [ 7 ] His statements in this regard start at page 15 of the transcript (Exhibit VD-1) and continue to be asserted, over ten times. Some examples are as follows: Page 30: . . . like everything I say is . . . going to incriminate me, and that's why the lawyer said, don't say anything at all? . . . We're done.

I mean I -- I'm not supposed to be saying anything at all and we're getting into these conversations. Page 31: The lawyer said, don't say anything at all, because everything will be used against you. So I've -- I've got to stop -- . . . I've got to stop talking. . . . I've got to stop talking. I mean honestly . . . he gave me stern caution . . . Well I mean, this is a sharp guy, so I'm -- I got to stop talking. I mean this is -- Page 36: I'm not supposed to be talking with you about anything. Page 57: . . . I don't want to answer anymore questions . . .

So like I said, uhm, I -- I don't want to answer anymore questions, this is [sic] like gone on far too long. So, uh, -- And page 59: . . . I was like really strongly advised to -- to not talk . . . [ 8 ] After each of these assertions, the officers continued to engage in dialogue with the accused, asking questions about the car and the whereabouts of the accused the night before. In general, the accused continued the dialogue with them, despite these various comments.

Comments about the Accused's Counsel [ 9 ] The following are comments made by Constable Vink about the accused’s counsel starting at page 79 of the transcript, when the accused continued to assert his right to silence: [Constable]: And -- and with all due respect, the lawyer you talked to, how much -- how much skin do you think he has in the game?

You know that expression? [The Accused]: No. [Constable]: How much -- another way to look at it, what does he have to lose? [The Accused]: Uh, -- [Constable]: If you get charged, if you don't get charged, if we walk out of here as best friends and go for dinner, does he win -- win, lose or draw? Nothing. He's sitting at home, or in his office doing whatever, probably has an afternoon tee time.

[The Accused]: Hmm. [Constable]: He has nothing vested in this. [The Accused]: Right. [Constable]: He has four fifths of nothing in this. [The Accused]: Right [Constable]: Right? For him, it’s a pay cheque, that’s all it is. [ 10 ] Detective Enright admitted, in cross-examination, that to reach his goals in the interview; to ascertain who the driver was, the accused had to make a decision about what he wanted to say. It was the accused's choice if the detective could get the accused to reject what the lawyer told him. The detective used various strategies.

He knew he should not insult or bad-mouth a detained person's lawyer. He knew he is not supposed to belittle a lawyer's legal advice. His evidence was he did not feel he did either. He did admit that the words ". . . it's a paycheque ..." did suggest that the lawyer did not care about the accused. [ 11 ] Even though the accused said, on a number of occasions, that his lawyer said he should not talk, as the accused was still talking with the detective, the detective carried on his questioning; his intention was to move Mr.

Varley away from following his lawyer's advice. [ 12 ] Constable Vink, in cross-examination, acknowledged that the accused kept on expressing his right to silence; and if the accused continued, the constable would not reach his goal, which was to get information as to who was the driver or find facts that would lead to the identity of the driver. [ 13 ] The constable acknowledged that he used various strategies to encourage the accused to speak and provide information. He said his statements, on page 79, were to comment on the lawyer's position, not the lawyer personally.

The constable testified he was trying to point out that the lawyer was not in the room facing jeopardy. He agreed that the strategy of trying to show the accused that his lawyer faced no jeopardy was a strategy to stop Mr. Varley asserting his right to silence; and he knew he should not belittle an accused's person's lawyer when questioning. Comments about the Judiciary [ 14 ] Almost immediately after the comments about counsel, the accused asked what happens to someone charged in a fatal motor vehicle accident. A general

summary of the discussion was that one could go to gaol, but it comes down to how people handle it: whether they plead guilty (own up to it) or whether they draw the process out. [ 15 ] During this discussion, Constable Vink said the following, at page 82 to 83: And I know the Judges in this -- in this province and in this city especially, they'll look at somebody who stands up and says, yeah, [I] blew it and I'm willing to take what I've got coming to me.

And they look at that with a lot more favour, and they're a lot more willing to -- to give somebody a lot more leniency when it comes down to what the penalties can be. [ 16 ] Constable Enright interjected: "Yeah." [ 17 ] Constable Vink then stated: Now the penalties can be going to jail, I'm not going to lie to you. But they don't have to be.

And they aren't always. [ 18 ] Constable Enright made comments that the police don't know what the judge's decision is, so the police don't make promises. [ 19 ] Constable Vink then went on to talk about sentencing, at pages 84 to 85, making a statement that if the accused says he did not do it and it is proven, a lot of times the judge will say: I'll make you accept it, and you're going to accept it by sitting in jail. [ 20 ] And if the accused admits to the conduct: They're a lot more prone to say, you know what? We don't need -- we don't need to punish this person to have to prove a point.

They got the point, they get it. They get the fact that human beings make mistakes. It's when human beings own mistakes. That's the whole point. I mean we don't have a criminal punishment system, right? We have -- we have a system that's -- that's designed to rehabilitate people and help them see the error of their ways. That's the whole goal of our criminal justice system.

And when people stand up and say, hey listen man, I blew it, I'm willing to take it. [ 21 ] At this point, the accused said: Okay, well let's talk to the Judge. [ 22 ] Constables Enright and Vink then speak, about the judge being down the road, after being charged and getting a court date; and the accused again, at page 87, says: ... let's go talk to the Judge and find out what -- what the situation is then.

[23] The police then say this step would be down the road. They circle back and indicate they really want to know the truth aboutwhat happened, and challenge the accused about what he has said earlier. Shortly after he confesses to the suggested scenario that thepolice put to him, on page 77 of the transcript. That was a suggested scenario before the discussion about the lawyer or the judiciary. 2. Voluntariness

a) The Law [24] No statement made out of court to a person in authority can be admitted into evidence against him, unless the prosecution hasproven that it was made freely and voluntarily. The burden is on the Crown to prove the confession to be voluntary beyond a reasonabledoubt. The reason behind the rule is that false confessions may result from oppression or intimidation. The totality of the circumstancesshould be considered by the Court in determining whether or not the statement of the accused was voluntary. [25] The leading case on the admissibility of confessions is R v Oickle, 2000 SCC 38.

It reminds a trial justice that the applicationof the confessions rule is contextual, and that in reviewing a confession, all relevant factors should be considered. Threats, promises,oppression, the operating-mind requirement, and police trickery are all relevant factors. [26] At paragraph 57, the case points out that the police may often offer some kind of inducement to the suspect to obtain aconfession. Few suspects will spontaneously confess to a crime.

In the vast majority of cases, the police will have to somehow convincethe suspect that it is in his or her best interests to confess. [27] Inducements are improper only when standing alone or, in combination with other factors, they raise a reasonable doubt aboutvoluntariness. [28] I will also make mention of the case of R v Singh, 2007 SCC 48. The Supreme Court of Canada, in that case, was discussingthe right to silence arising under

section 7 of the Charter, and its interplay with voluntariness. [29] In this case before me, a specific breach of

section 7 rights was not argued as a Charter breach separately, but a considerationin the assessment of voluntariness. This is the proper way to deal with considerations around the right to silence in this case, as the caselaw is clear that merely continuing to question, when the accused has been advised of and is asserting his right to silence, is notnecessarily a breach of that right. [30] In the Singh case, the majority decision stated that the modern expansive view of the confessions rule includes the right of thedetained person to make a meaningful choice whether or not to speak to state authorities.

The focus is on the conduct of the police and itseffect on the accused's ability to exercise his or her free will. The test is an objective one. [31] It is clear the right to remain silent does not mean that a person who has that right has the right not to be spoken to by stateauthorities. Police questioning is important in the fulfillment of the police investigative role.

The exercise of the right to silence is withinthe control of an accused who has an operating mind and is fully informed of his rights, provided the conduct of the authorities does nottake away his or her ability to choose. [32] The police are entitled to try to persuade the accused to answer questions. However, as outlined in paragraph 47 of the Singhcase, the police cannot ignore the detainee's right to choose whether to speak.

Police persistence in continuing the interview, despiterepeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtainedstatement was not the product of a free will to speak to the authorities. [33] The case also makes clear, in paragraph 53, that the number of times the accused asserts his or her right to silence is part ofthe assessment in all the circumstances but it is not in itself determinative.

The ultimate question is whether the accused exercised freewill by choosing to make a statement. [34] Several cases are instructive in general terms, about the ability of the police to make comments about the accused's counselin·an attempt to either undermine the accused's relationship with the counsel or persuade the detainee to give a statement despite legaladvice not to do so. [35] R v Burlingham, (SCC), [1995] 2 SCR 206, stands for the proposition that

section 10(

b) of the Charterprohibits police from belittling the accused's lawyer with the express goal or effect of undermining the accused's confidence in andrelationship with defence counsel. It makes no sense for

section 10(

b) of the Charter to provide for the right to retain and instructcounsel, if law enforcement authorities are able to undermine either the accused's confidence in his lawyer or the solicitor-clientprivilege. [36] In the Burlingham case, the facts were quite different from those in this case before me, because there was a discussion abouta plea deal. In that case, there was discussion about the lawyer, his retainer, the cost, and statements that the police made, such as: "Whycan you trust him (counsel) more than you can trust us (the police)?" [37] The Ontario Court of Appeal, in the case of R v Mujku, Nop, and Chak, 2011 ONCA 64, made the comment in relation tosection 10(

b) rights, at paragraph 36, that: The police tread on dangerous ground when they comment on the legal advice tendered to detainees. [38] The Court went on to comment that it is acceptable for the police officer to make the point that it is up to the accused, not hislawyer, to decide whether to make a statement.

[ 39 ] However, as stated in Burlingham , the police cannot belittle the accused's lawyer with the goal of, or effect of, undermining the accused's confidence in and relationship with his defence counsel. That case dealt with comments to the effect that: ... your lawyer is at home, watching TV with his family, and you are here. [ 40 ] The Saskatchewan Court of Appeal, in the case of R v Edmondson , 2005 SKCA 51 , is also instructive, in that it was looking at whether the choice to speak to the police was vitiated by the conduct of the officer taking the statements.

The officer can use legitimate persuasion to encourage the accused to talk.

Any police persuasion, short of denying the suspect the right to choose or of depriving him of an operating mind, does not breach the right to silence. [ 41 ] The test the Court applied was whether the remarks about counsel, viewed in the context of the interview as a whole, served to so belittle counsel, with the express goal or effect of undermining the accused's confidence in and relationship with his counsel, to have violated the accused's right to counsel and vitiated his choice to remain silent. [ 42 ] The Court, in that case, examined comments that questioned, firstly, whether following the advice to stay silent was the smartest thing to do, and comments that the lawyer "was not in the jackpot you are."

b) Application of the Law to the Facts [ 43 ] So the test here is an objective test. I have to look at what occurred in the context of the whole interview. As the accused did not testify in the voir dire , I have no subjective assessment from him to take into account. [ 44 ] Clearly, the accused was detained for questioning.

He asserted a number of times that he was strongly advised not to answer questions, and he reiterated a number of times that he was concerned about talking and the questioning. [ 45 ] The conduct by the police of continuing to question, alone, is not a breach of this accused's right to silence. The police are entitled to continue to question if the detainee continues to talk.

However, this background is important, as it was clear from the evidence of both police officers that they knew that they should not insult or bad-mouth the detainee's counsel or belittle the lawyer's legal advice. [ 46 ] Detective Enright admitted the statement about the paycheque was, in essence, suggesting the lawyer did not care about the accused. The intention of the comments was clearly meant to move Mr. Varley away from following the advice he had received not to give any comments to the police. [ 47 ] The purpose of the interview from the police point of view, was to find out if Mr.

Varley was the driver or if he could give them information to assist the police in determining the driver. The comments suggesting that the lawyer had nothing invested; he had four-fifths of nothing; and that it was only a paycheque were designed to reduce Mr. Varley's trust in the advice he was given, by promoting the idea that the lawyer did not really care about him. By the end of the comments, Mr. Varley was saying "Right" "Right" to agree that the lawyer has nothing invested, and he had four-fifths of nothing invested. The reality of the interview is that Mr.

Varley, who had been insisting he was relying on his counsel's advice not to talk and to remain silent, never again, after this discussion, mentioned that advice or his counsel, or raised his right to remain silent. [ 48 ] The next discussion, almost immediately after the discussion about the counsel was about judges that Constable Vink suggested he knew, and how they would react to someone taking responsibility.

Although there is no specific inducement in terms of a specific, promised outcome in this case, there is no question that the technique was to use the police officer's suggested familiarity with the justice system and judges, to suggest to Mr. Varley he would get better treatment if he confessed or, in essence, took responsibility. The police clearly indicated a judge would look at that "with a lot more favour" and would be a lot more prone to say "... we don't need to punish this person . . . ." [ 49 ] On page 85, it was presented there is no criminal punishment system; the system is to rehabilitate people.

Although these comments are couched with the acknowledgement that the police officers cannot guarantee what a judge would do, it is Mr. Varley's reaction to this discussion that is instructive; and he twice says, "Let's go talk to the Judge"; and the second time, he adds: "to find out what the situation is." Clearly, at that time, he is responsive to this inducement that is being made to him by the police officers to confess directly to such a judge; but that, of course, was not actually an option at that point in the interview. [ 50 ] The police left the impression with Mr.

Varley as to the way a judicial system would treat him, circling back to their earlier discussion of how they needed to know what happened; although, they became more confrontational. The inducement they held out to the accused -- that he would likely get better judicial treatment and even, possibly, no punishment if he confessed -- was left there; and clearly, Mr.

Varley had expressed a wish to take advantage of that offer, by seeing that judge. [ 51 ] When I assess the overall effect of the whole interview, it is clear that the accused, having asserted his right to silence, was subjected to the police successfully undermining his expression of that right by suggesting, firstly, that his lawyer was only in it for the money, had no skin in the game, and did not care, ultimately getting Mr. Varley to agree with them on those points. [ 52 ] After laying the seed to have him doubt his lawyer's genuineness and, thus, whether he should follow the advice, Mr.

Varley was left with an inducement of how the judicial system would respond to a confession. Mr.

Varley's reaction is indicative of his state of mind to have the matter immediately dealt with by the justice the police were describing, who would be less likely to punish a person who has confessed, in a criminal rehabilitation system. [ 53 ] The police represented that the system is designed with a goal to rehabilitate those who confess and see the error of their ways and that there is no criminal punishment system. [ 54 ] When I examine all of the above circumstances together in the context of the whole interview, the police had undermined the accused's faith in the legal advice to stay silent by convincing him that his lawyer did not care; they presented an inducement of how a

judge would likely react to a confession; and unable to deliver on Mr. Varley' s request to immediately see a judge, they continued to question him. Conclusion [ 55 ] Against this contextual background, I find the conduct of the police created an environment that affected Mr. Varley' s ability to exercise his free will and make a meaningful choice whether to speak to them after this inducement; and as a result, I have a reasonable doubt that the statement is voluntary.

Therefore, the Crown has not met its onus; and thus, any part of the interview after page 79 is not admissible at the trial. [ 56 ] In light of this decision, I am not going to embark on a separate discussion of the argument by the defence of any breach of Mr. Varley's

section 10(

b) rights. Heard on the 20 th day of November, 2017 to the 21 st day of November, 2017. Delivered orally on the 22 nd day of November, 2017 Dated at the City of Calgary, Alberta this 15 th day of December, 2017. R.E. Nation J.C.Q.B.A. Appearances: R. Thom Forsyth for the Crown Stephen Wojcik for the Accused