R v Gwyn, 2021 ABQB 115

Court of Queen’s Bench of Alberta Citation: R v Gwyn, 2021 ABQB 115 Date: 20210216 Docket: 190472761Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Joshua Jeremy Gwyn Accused _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.C. Price _______________________________________________________ I. Introduction [ 1 ] The trial of this matter commenced on December 7, 2020 and a voir dire in the trial was declared on the same date. [ 2 ] On December 11, 2020 I gave my ruling on the voir dire in the matter with reasons to follow.

These are those reasons. The issue in the voir dire that arose on day one of the trial was whether a statement that Mr. Gwyn gave to the police on April 2, 2019 is admissible into evidence in the trial proper. I held that the Crown had met its onus of proving beyond a reasonable doubt that the

statements given by Mr. Gwyn in the interview up to and including page 54 of the transcript were voluntary and that all portions of the transcripts and video of the interview after that point in time was not admissible at the trial and were to be excluded in the trial proper. [ 3 ] The trial was adjourned on December 11, 2020 and continued on February 5, 2021. At the outset of the continuation of the trial, it was discussed and I confirmed what evidence from the voir dire would form part of the trial.

In that regard, I confirmed on the record that I would not consider any of the testimony of Constable Prockiw and I would not consider any of the testimony of Constable Matthies with respect to her evidence pertaining to the interview transcript and video after page 54 in voir dire exhibit 6 or any of the other voir dire exhibits pertaining to the interview of Mr.

Gwyn after that time on April 2, 2019. [ 4 ] Ten (10) trial exhibits have been entered, the first 7 by agreement and trial exhibits 8, 9 and 10 without objection as follows: Trial Exhibit 1 – Certificate of Analyst by Calgary Police Service Firearms Support Team Trial Exhibit 2 – Affidavit – Firearms Officer sworn by Shirley Mack Trial Exhibit 3 – Mandatory Prohibition Order – Firearms and Weapons Trial Exhibit 4 – Information, Endorsements and Recognizance of Joshua Jeremy Quintin Gwyn Trial Exhibit 5 – Information, Endorsements and Undertakings of Joshua Jeremy Quintin Gwyn Trial Exhibit 6 – Photographs of firearm, magazines and ammunition Trial Exhibit 7 – Drug Analyst Certificate Trial Exhibit 8 – Photocopy of pieces of cheques Trial Exhibit 9 – Redacted Transcript of Interview from April 2, 2019 Trial Exhibit 10 – Redacted Video of Interview from April 2, 2019 [ 5 ] Mr.

Gwyn stands charged of 13 Counts for possession of firearms, possession of drugs and breaches of conditions. Note that, at the commencement of the trial the Crown requested an amendment to Count 9, to change the name referred to in Count 9 from Mike Badder to Troy Wiebe; I allowed that amendment. [ 6 ] On February 5, 2021, I was invited by the Crown with no objection by counsel for the Defence to “convict” Mr. Gwyn of Counts 1, 2, 3, 4, 5, 7, 12 and 13. In consideration of my review of all of the evidence before me, I find that the Crown has proven beyond a reasonable doubt that Mr.

Gwyn is guilty of Counts 1, 2, 3, 4, 5, 7, 12 and 13. The issue of conviction will be left to be dealt with at sentencing. [ 7 ] In respect of Counts 8, 10, and 11, I was invited by the Crown with no objection by the Defence to acquit Mr. Gwyn of those Counts. Having reviewed the evidence that was before me, and having heard submissions of counsel with respect to the same, I hereby acquit Mr. Gwyn of Counts 8, 10, and 11. [ 8 ] In respect of Counts 6 and 9 that deal with the possession of magazine cartridges and a rifle knowing that they were stolen, the Crown says that Mr. Gwyn should be found guilty.

The Defence says that the Crown has not proven recency. On February 5, 2021, I heard oral arguments with respect to the same. [ 9 ] These are my reasons for my finding on the voir dire pertaining to the voluntariness of the statement given by Mr. Gwyn on April 2, 2019 and my decision in respect of Counts 6 and 9. II.

Summary of Evidence 1. Testimony of Troy Wiebe [ 10 ] Troy Wiebe testified that his house was broken into sometime in March of 2019. He could not remember the exact date. Mr. Wiebe was away for work at the time and he returned two days after his house was reported to have been broken into and entered. Mr. Wiebe testified that 10 of his firearms were stolen from his house. One of the firearms, the “CZ858”, was returned to Mr. Wiebe “a few days later” after it was reported stolen. [ 11 ] Mr. Wiebe gave evidence that the stolen firearm that was later returned, the CZ858, was a “custom built gun”.

He said, there is “only one like it in the world”. Mr. Wiebe described how he had painted the magazines with the same paint schemes as his gun. [ 12 ] Mr. Wiebe recognized his gun and the magazines in the photos contained in Trial Exhibit #6, however, he could not say with 100 percent certainty that the ammunition depicted in the photos that form part of Trial Exhibit #6 was the ammunition stolen from him. 2.

Testimony of Constable Buhler [ 13 ] The accused, Joshua Gwyn, was a passenger in a vehicle driven by Jessie Dean Jaeger that was pulled over by Constable Buhler at 1:31 a.m. on April 2, 2019. [ 14 ] The vehicle was a 1995 Chevy. Constable Buhler did a CPIC check and noted that the owner of the vehicle was born in 1938.

Constable Buhler observed that the individuals in the vehicle were “not of that vintage” and so decided to stop the vehicle. [ 15 ] Mr. Jaeger informed Constable Buhler that the vehicle was his grandfather’s and provided the requisite documentation on request by Constable Buhler. [ 16 ] It was also noted by Constable Buhler that Mr. Gwyn was not wearing his seat belt. Constable Buhler asked Mr. Gwyn for his name and date of birth. Initially, Mr. Gwyn f told Constable Buhler that his name was Thomas Saddleback and his birth date was November 4, 1985.

When Constable Buhler conducted a CPIC check, that name and birth date did not produce a valid identity. Constable Buhler asked Mr. Gwyn again and this time Mr. Gwyn gave him his correct identification which when checked, produced information regarding two outstanding warrants for Mr. Gwyn’s arrest and that Mr.

Gwyn was bound by conditions: 1) not to be in a vehicle without the registered owner; and 2) to produce documents on demand of a police officer. [ 17 ] At 1:40 a.m. another police car and crew members Constable Murphy and Constable Zam arrived to assist Constable Buhler. [ 18 ] On request by Constable Buhler, Mr. Gwyn got out of the vehicle. Once the passenger door was open, Constable Buhler saw a baggie on the floorboard of the passenger side of the vehicle that he believed to contain drugs. Mr. Gwyn was placed in handcuffs and escorted to Constable Buhler’s police vehicle. Mr.

Gwyn was Chartered and cautioned for the breaches of his conditions, for possession of drugs and for his outstanding warrants at 1:45 a.m. [ 19 ] On his return back to the vehicle, Constable Buhler noticed a “live rifle round” laying on the pavement behind the vehicle. He advised the other officers what he had found and then went to search the vehicle for more drugs. [ 20 ] In his search for more drugs where he found the “baggie” he noticed a folding chair bag that was on the passenger side of the vehicle and he looked inside and found a rifle and several magazines inside a black garbage bag.

Constable Buhler then informed the other officers of what he had found and called the crime scenes unit to come and seize the firearms. [ 21 ] Meanwhile, Constable Murphy arrested, Chartered and cautioned the driver, Mr. Jaeger and later he and Constable Zam transported him to Westwinds Police Headquarters in Calgary (“Westwinds”). [ 22 ] Constable Buhler testified that he had seen a bulletin earlier that day at a team meeting about firearms being stolen and remembered from the bulletin that there was a “camo painted rifle” that was stolen and the rifle he had found was also camo coloured.

I understand from Constable Buhler’s evidence that he believed that the rifle he had found in the vehicle was one of the stolen firearms. He contacted the break and enter unit to check with the detective that made the bulletin to see if the serial number on the rifle he found in the vehicle was a match to one of the missing rifles. It was confirmed to be a match. [ 23 ] The other officers, Constables Murphy and Zam also assisted with the search of the vehicle and found more magazines and ammunition in the vehicle as well as a knife and ripped up cheques. [ 24 ] Constable Buhler Chartered and cautioned Mr.

Gwyn at 2:21 a.m. for possession of the firearms, ammunition and magazines found. He then handed continuity of the rifle, ammunition and magazines found to the crime scenes unit at 2:47 a.m. [ 25 ] Each time Constable Buhler Chartered and cautioned Mr. Gwyn, Mr. Gwyn advised that he understood his rights and that he wanted to contact a lawyer. When Constable Buhler was asked on cross-examination why Mr.

Gwyn was not given the opportunity to call a lawyer while he was in his police vehicle, he said that his police vehicle is equipped with video recordings and that it is not the practice to let accused persons call a lawyer while in the police vehicle. It was admitted that while Mr. Gwyn was in the police vehicle he was delayed his right to counsel for over two hours while they remained at the road side. [ 26 ] At some point between Mr. Gwyn’s arrest at 2:21 a.m. for the firearms possession and 3:30 a.m. Mr. Gwyn complained to Constable Buhler that he was feeling nauseous.

Constable Buhler called EMS. [ 27 ] EMS arrived at or about 3:30 a.m. and Mr. Gwyn was seen until approximately 3:44 a.m. when as was reported by Constable Buhler, Mr. Gwyn turned down the medical treatment that EMS was offering. Constable Buhler noted that he and Mr. Gwyn returned back to the police vehicle from the ambulance at 3:44 a.m. [ 28 ] Mr. Gwyn was subsequently taken to Westwinds by Constable Buhler. Constable Buhler testified that the drive took approximately 20 minutes. They arrived at Westwinds at approximately 4:05 a.m. [ 29 ] At the trial, Constable Buhler recalled Mr.

Gwyn saying at some point during their interactions while Mr. Gwyn was seated in the back of Constable Buhler’s police vehicle that he “didn’t want to go down for the gun”. Constable Buhler acknowledged in cross- examination that he did not take any notes of Mr. Gwyn having said that. Constable Buhler conceded that “this is not my finest note taking”. [ 30 ] Constable Buhler gave evidence that once they arrived at Westwinds Mr. Gwyn was searched, his belongings were taken and put into a locker and Mr. Gwyn was put into a holding cell by himself.

However, he made no notes of the same. [ 31 ] Constable Buhler testified that he was with Mr. Gwyn the “whole time” at Westwinds while he waited for the “break and enter unit” to arrive. Constable Buhler reported that there was no one with Mr. Gwyn while Mr. Gwyn was in the holding cell. Constable Buhler said that he last saw Mr. Gwyn while Mr. Gwyn was in the holding cell. When asked if he took any notes of what Mr.

Gwyn was doing in the holding cell, Constable Buhler said: “Nothing eventful or I would have written it down”. [ 32 ] Constable Buhler further gave evidence that other than the behaviour of refusing treatment by EMS, Mr. Gwyn’s demeanor was calm and relaxed. He described Mr. Gwyn as “laid back the whole time” and said that Mr. Gwyn was “easy to deal with”. [ 33 ] When asked if Constable Buhler put Mr. Gwyn in front of a lawyer, he said he made no notes about it; and if he would have

done it, he would have made notes about it. He also said if anything out of the ordinary happened during that time, he would have made notes about it, and he did not make any notes. He also said that there was a CCTV camera that monitored Mr. Gwyn the whole time while Mr. Gwyn was in the holding cell. [ 34 ] Constable Buhler further testified that he did not threaten Mr. Gwyn nor did he see anyone else threaten Mr. Gwyn and that he did not see anyone else have physical contact with him. He gave evidence that he did not make any promises to Mr.

Gwyn and he did not recall ever making or ignoring a request that was made of him by Mr. Gwyn. He said that Mr. Gwyn was quiet. 3. Testimony of Constables Murphy and Zam [ 35 ] Constables Murphy and Zam testified that they were partnered and on duty on April 2, 2019. They were called to assist Constable Buhler at the vehicle stop at approximately 1:40 a.m. [ 36 ] Constable Murphy arrested Mr. Jaeger at the vehicle stop. Constable Murphy Chartered and cautioned Mr. Jaeger for the drugs and a second time for the firearms. [ 37 ] Constable Murphy testified that he did not have any direct contact with Mr.

Gwyn and did not speak with Mr. Gwyn. When asked if he could describe Mr. Gwyn’s demeanor he said “cooperative, not argumentative or anything like that”. [ 38 ] Constable Zam testified that he observed Mr. Gwyn at the time of Mr. Gwyn’s arrest by Constable Buhler. He escorted Mr. Gwyn to Constable Buhler’s police vehicle. Constable Zam said that he was providing a “back-up” for Constable Buhler. [ 39 ] Constable Zam said that his last interaction with Mr. Gwyn was when he placed Mr. Gwyn in Constable Buhler’s vehicle. Constable Zam testified that he could not remember Mr.

Gwyn’s demeanor but said that he would have been cooperative and calm otherwise he would have made a note of it. [ 40 ] Both Constables Murphy and Zam assisted with the search of the vehicle and ultimately transported Mr. Jaeger to Westwinds. Constables Murphy gave evidence that they arrived at Westwinds at 3:59 a.m. Both Constables Murphy and Zam said that they did not see Mr. Gwyn at Westwinds. 4. Testimony of Constable Matthies [ 41 ] Constable Matthies testified that around 3:00 a.m. on April 2, 2019 she received a call from her Sargent about the recovery of one of the firearms that had been reported stolen.

She drove to Westwinds at approximately 5:00 a.m. to meet with the officers involved with the traffic stop. She gave evidence that she met with Constables Buhler and Murphy. She was told that they had recovered a stolen firearm in the vehicle and the serial number matched the firearm from the break and enter that was being investigated. [ 42 ] At 5:32 a.m. Constable Matthies, took over continuity of Mr. Gwyn from Constable Buhler. Mr.

Gwyn was still in the holding cell when continuity was transferred. [ 43 ] There was no evidence of any interaction of significance between 5:32 a.m. and 7:16 a.m. after Constable Matthies took over continuity of Mr. Gwyn. Mr. Gwyn remained in the holding cell by himself. During this time Constable Matthies was meeting with her team and preparing for the interview. [ 44 ] Constable Matthies said in direct examination that Mr. Gwyn was in holding cell 4 at Westwinds and that she believed that he was either sleeping or just waiting, during the above period of time. [ 45 ] At 7:17 a.m.

Constable Matthies commenced interviewing Mr. Gwyn. To her recollection that was her first physical interaction with Mr. Gwyn. [ 46 ] Constable Matthies gave evidence that she walked with Mr. Gwyn from the holding cell to the interview room. She said that she would have introduced herself to him during this time and told him she was going to speak with him. She gave evidence that Mr. Gwyn’s general demeanor when she first saw him in the holding cell was that “he seemed very tired.

A little bit out of it.” When asked what she meant by that she said “I don’t know for sure, but it appeared like he was coming down from something”. She confirmed she meant from drugs or alcohol. [ 47 ] At some point, someone gave Mr. Gwyn a blanket because from review of the start of the interview on the video he is wearing a blanket when he enters the room. Constable Matthies said that she remembered him complaining that he was cold. She did not recall who gave Mr. Gwyn a blanket. The video shows that underneath the blanket Mr.

Gwyn is wearing a t-shirt, jeans and socks, but no shoes. [ 48 ] Constable Matthies gave evidence that at the time of the commencement of the interview, Mr. Gwyn was “sleepy” but he was “lucid”. [ 49 ] From review of the video and transcript, it shows that at the start of the interview Constable Matthies, Charters and cautions Mr. Gwyn. She tells Mr. Gwyn that she is arresting him for a number of offences which she reads out to him and includes, firearm and ammunition possession, possession of a controlled substance, possession of stolen property over $5,000 and break-and-enter.

During this time, the video evidence shows Mr. Gwyn is sitting back in his chair, in a relaxed position with a blanket covering him. [ 50 ] After listening to the Chartering , Mr. Gwyn responds to Constable Matthies by nodding his head up and down that he understands and when asked if he wants to call a free lawyer or any other lawyer he says: “Ah, yes, I do”. Constable Matthies tells Mr. Gwyn she needs to caution him before hand but will then put him in the phone room if he wants to call a lawyer, Mr. Gwyn responds: “I don’t really want to call a lawyer right now, but... okay”.

Constable Matthies then cautions Mr. Gwyn and she asks him if he

understands. He says “yep” and the video shows him nodding his head up and down. Constable Matthies then gives Mr. Gwyn a secondary caution. When asked if he understands, Mr. Gwyn says “yeah” and the video shows him sitting back in his chair and rocking back and forth. After telling Mr. Gwyn she will get him on the phone to his lawyer, Mr. Gwyn responds “I don’t want to really talk to my lawyer right now.” She tells him because he said he wanted to talk to a lawyer she needs to put him on the phone and afterwards they can continue talking.

He responds “all right”. [ 51 ] Constable Matthies gave evidence that she escorted Mr. Gwyn to one of the phone rooms. He was provided with his cell phone so he could obtain his lawyer’s details. [ 52 ] Constable Matthies said she had no interaction with Mr. Gwyn while he was in the phone room and that he was in the phone room for over one hour. [ 53 ] The video exhibit and transcript then shows that when Mr. Gwyn returns to the interview room he tells Constable Matthies that he did not speak to a lawyer. He tells her that while he was in the interview room “I just laid down on the ground”.

In response to her inquiry about whether he had spoken to a lawyer: “I already told you I didn’t want to. Like I didn’t need to.” Constable Matthies then advises Mr. Gwyn of his right to a reasonable opportunity to contact a lawyer and that she is not obliged to take a statement from him, until he is certain he wants to exercise his right to contact a lawyer. He advises her he understands. She asks him if he wants to waive his right to contact a lawyer at this time.

He responds “no” she further explains to him again and he then responds: “No, I just - - I just - - I did say I understood that, and I just said that I don’t - - like I don’t want to right now. I’d just rather talk to you first.” Constable Matthies asks him again if he wants to waive his right to contact a lawyer. Mr. Gwyn responds again with “No”. Constable Matthies explains that she needs to put him in a phone room to contact a lawyer then unless he wants to waive his right. Mr. Gwyn then responds: “Yea, in case I want to contact a lawyer. Can – can – can you – yeah, sure, waive it, yeah, I guess”.

Constable Matthies again explains and then asks again, if he wants to waive his right to counsel and Mr. Gwyn says in a clear affirmative manner: “Yes, I do.” [ 54 ] It is evident from review of the transcript and video that Mr. Gwyn then proceeds to try to negotiate a deal with Constable Matthies. At least five times, starting at page 12 of the transcript to page 18 of the transcript, Constable Matthies responds to Mr. Gwyn by saying that she can’t make him any deals for him to give her information. Here are some of the exchanges: Mr. Gwyn at page 12 lines 3 to 5: “Well, yeah, so I have one question first.

So by me saying anything, like will it help, like, with my charges and shit? Because like, ah, if I did have some, ah, valuable information about it?” Constable Matthies at page 12 line 8: “Ah, I can’t make any deals with you.” Mr. Gwyn at page 12 lines 9 to 17: “Okay, well, then I don’t know. I can’t be saying anything then because, ah, I do know some good— like, ah, some stuff that would probably help you guys with a lot of things – with a lot of really, really good things...

So I’m not about to, you know, put myself in jeopardy either.” Constable Matthies at page 12 lines 19 to 20: “I can’t make any deals with you. Put it that way.” Mr. Gwyn at page 13 lines 13 to 15: “I think that’s very important, actually, like you know what I mean? To share some information.” Constable Matthies page 13 lines 18 to 20: “No, I understand but I’m saying is. I -I can’t make any deals with you. I – I can’t, you know, drop your charges.” Mr. Gwyn at page 15 line 20 to page 16 line 1: “I mean, if I’m going to be, ah, sharing any kind of information, like I want to know if it’s going to be – you know?

Then leaning towards an – an –” Constable Matthies at page 16 lines 2 to 4: “Okay, well, we – just – just like I said, we can’t use, uhm, --I can’t give you any deals. Mr. Gwyn at page 18 lines 1 to 3 : “I do know some very valuable stuff, and it’s, ah – I’m not just going to give” Constable Matthies page 18 lines 4 to 6: “And that’s your right. So if – but if we’re clear that I can’t give you deals.” [ 55 ] Mr. Gwyn admits to two things of note in the interview between pages 1 and 54: 1) that Mr. Jaeger had nothing to do with the firearm, that Mr. Gwyn needed a ride and Mr. Jaeger supplied the ride, it was Mr.

Gwyn that put the firearm in the truck; he wanted to go and “test fire it” [see Transcript pages 19, 20, 21]; and 2) that the drugs found in the truck belonged to Mr. Gwyn [see Transcript page 25]. [ 56 ] Everything that transpires after page 54 has been conceded by the Crown as being either characteristic of inducement or improper inducement, having reviewed the transcript and video, I find the same and accordingly, will not provide a further

summary in my reasons of what transpires in the interview subsequent from page 54 onward of the interview. III. Issues [ 57 ] The issue for determination in the voir dire is whether the statement that was given by Mr. Gwyn on April 2, 2019 was

voluntary. [ 58 ] The issue in the trial is whether the Crown has proven beyond a reasonable doubt that Mr. Gwyn is guilty of Count 6 and/or Count 9. IV. Analysis A. Was the Statement Given by Mr.

Gwyn on April 2, 2019 Voluntary? [ 59 ] The Supreme Court of Canada decision of R v Oickle , 2000 SCC 38 [ Oickle ], remains the leading case on admissibility of confessions. [ 60 ] As was made clear in Oickle at para71, a determination of whether the Crown has proven voluntariness is essentially a factual one that must be made having regard to all of the relevant circumstances. [ 61 ] The Crown bears the onus of proving beyond a reasonable doubt that the statements made by the accused are voluntary.

All relevant factors must be considered when reviewing a confession to determine whether it was made voluntary. [ 62 ] The factors to consider include, the making of threats or promises, oppression, the operating mind doctrine, and police trickery. As set out in R v Spencer , 2007 SCC 11 at para 12 : Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” ( Oickle , at para. 63 ).

On the other hand, the use of “police ... trickery” to obtain a confession “is a distinct inquiry ... [given that] its more specific objective is maintaining the integrity of the criminal justice system” (para. 65) [ 63 ] At para 49 of Oickle , the Supreme Court stated: [H]olding out the possibility of a reduced charge or sentence in exchange for a confession would raise a reasonable doubt as to the voluntariness of any ensuing confession.

An explicit offer by the police to procure lenient treatment in return for a confession is clearly a very strong inducement, and will warrant exclusion in all but exceptional circumstances. [My Emphasis]. [ 64 ] The word “ensuing” means occurring afterward or as a result. Accordingly, I understand the Supreme Court in Oickle to be saying that statements made after a threat or inducement will warrant exclusion. [ 65 ] In Oickle at para 57 the Supreme Court states: In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found 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 early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated.

If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done 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 done by such a person.

There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession. [Emphasis mine]. [ 66 ] It is the Crown’s position that up until page 55 of voir dire Exhibit 6, the transcript of the interview by Constable Matthies of Mr. Gwyn, that there was no evidence that can be characterized as an inducement, a promise or a threat. The Crown further argues that there was no evidence of any oppressive circumstances and no police trickery.

The Crown argues that what Mr. Gwyn said to that point in the interview was given voluntarily, and of his own free will. [ 67 ] The Crown has conceded that after that portion of the interview of Mr. Gwyn, the remainder of the interview from pages 55 and onward through to and including page 148 and the other transcripts, audio and video that were made exhibits in the voir dire , may be excluded because, some of the things said could be “characterized as inducement” or were inducements of Mr. Gwyn. [ 68 ] The explanation given by the Crown as to why the Crown led evidence of the entirety of the interview of Mr.

Gwyn which necessitated the review of the entire transcript, audio and video recording is because: “there was a concern discussed about whether or not it would prejudice the accused if further on in the statement he gave an innocent explanation about why he said what he said in the first part of the statement.” [ 69 ] I accept the Crown’s explanation and I confirm for the purposes of the voir dire that from my review of the entirety of the transcript, audio and video recording that there was nothing said by Mr.

Gwyn after page 54 that provides an innocent explanation for the things he said that are captured in pages 1 through 54 of the transcript that was marked as voir dire Exhibit 6.

[ 70 ] The Defence appeared to be taken by surprise by the Crown’s concessions as it had not been made known to the Defence that the Crown would only be seeking to introduce part of the statement. However, the Defence argued that the entirety of the statement/transcript should be excluded, that the statement given by Mr. Gwyn was not voluntary, that there are gaps in the evidence, that Mr. Gwyn did not have an operating mind and that what transpires during the interview taints the entire statement.

The Defence argued that the Crown failed to prove voluntariness beyond a reasonable doubt. [ 71 ] There are three distinct aspects to the evidence that need to be considered. First, the time from Mr. Gwyn’s arrest to the beginning of the interview; second, from the beginning of the interview to the first inducement that Mr. Gwyn is offered; and then third, the time frame from the first inducement or what can be considered an inducement to the end of the interview.

First – April 2, 2019 1:31 a.m. to 7:17 a.m. [ 72 ] With respect to the first time frame, prior to the commencement of the interview, the evidence that was before me included the evidence of Constables Buhler, Murphy, Zam and Matthies. Constables Buhler, Murphy and Zam were all involved in the traffic stop. Constable Buhler had continuity of Mr. Gwyn through to when continuity was passed on to Constable Matthies. I find from my review of the evidence, nothing in this time frame from when Constable Buhler arrested Mr. Gwyn to when he transferred continuity of Mr. Gwyn to Constable Matthies was that Mr.

Gwyn’s will was overborne. Mr. Gwyn was Chartered and cautioned twice by Constable Buhler. When Mr. Gwyn arrived at Westwinds with Constable Buhler, after he was booked, he was put in a holding cell by himself and allowed to rest. There was nothing in evidence of the treatment of Mr.

Gwyn that would indicate evidence of any oppressive circumstances, any threats or inducements, a lack of an operating mind, or police trickery. [ 73 ] The Defence argued that there were gaps in the evidentiary record and as a result the Crown cannot prove beyond a reasonable doubt that there were no oppressive circumstances or threats or inducements. I disagree. I find in this case, Constable Buhler had care and control of Mr. Gwyn the entire time from Mr. Gwyn’s arrest until Constable Matthies took care and control of Mr. Gwyn at 5:35 a.m. that same date. Mr.

Gwyn then remained in the holding cell that was monitored by CCTV through to when he was retrieved by Constable Matthies for the interview that commenced at 7:17 a.m. [ 74 ] Despite the lack of notes taken by Constables Buhler and Matthies, there was no time when Mr. Gwyn was not accounted for. Also, considering the time of day (very early morning when less people are around) and having heard the evidence that he was in a holding cell the entire time by himself, I believe beyond a reasonable doubt that the Crown has proven that Mr. Gwyn’s will was not overborne in the first time frame from the time of Mr.

Gwyn’s arrest through to the commencement of the interview. Constable Buhler put Mr. Gwyn in the holding cell and Constable Matthies took Mr. Gwyn out of the holding cell and brought him to the interview room. [ 75 ] I did hear evidence and could see for myself that somehow Mr. Gwyn ended up with a blanket. Neither Constables Buhler nor Matthies could recall who provided the blanket. In any event, I do not find that the fact that Mr. Gwyn had or received a blanket at some point and that neither Constables Buhler nor Matthies could recall how it is that Mr. Gwyn had or received a blanket is evidence that Mr.

Gwyn’s will to remain silent was overborne. [ 76 ] Although it was argued that there were evidentiary gaps, I did not find any evidentiary gaps that were not adequately explained. The evidence in this case as already set out herein, including that Constable Buhler transferred continuity of Mr. Gwyn to Constable Matthies, and that at all material times while Mr. Gwyn was at Westwinds was in the holding cell monitored via CCTV and then in the interview room, I believe the evidence of Constable Buhler and Constable Matthies and do not find that there was anyone else in a position to influence Mr. Gwyn. [ 77 ] Mr.

Gwyn remained in continuous charge by first Constable Buhler and then Constable Matthies at all relevant times. Both Constables Buhler and Matthies testified to their memories of the conversations they did have with Mr. Gwyn and I found their evidence to be credible. Ideally Constable Buhler would have made a note of the statement made by Mr. Gwyn about not wanting to go down for the gun. However, he admitted he was a poor note taker that day. Notwithstanding there were few notes, I find based on the evidence and circumstances of this case, including the time of day that Mr.

Gwyn was booked into Westwinds that the evidence of both Constables Buhler and Matthies was both credible and reliable. If anything of significance would have occurred a note would have been made of it. I do not find that something like Mr. Gwyn receiving a blanket is of any significance. [ 78 ] In review of all of the evidence of the surrounding circumstances of the period of time from the arrest at 1:31 a.m.to the commencement of the interview of Mr. Gwyn at 7:17 a.m., I find that the Crown has proven beyond a reasonable doubt that Mr.

Gwyn’s will to remain silent was not overborne by threats or promises, oppressive circumstances, the lack of an operating mind, a combination of such things, or by police trickery. Second - April 2, 2019 at 7:17 a.m., Beginning of Interview at Page 1 of the Transcript to Page 54 of the Transcript [ 79 ] At the outset of the interview, Constable Matthies Charters and caution’s Mr. Gwyn. She gives him a secondary caution as well. It is clear from a review of the transcript and video evidence that Mr. Gwyn is sleepy.

It’s 7:17 a.m. in the morning, he has been in the holding cell sleeping and/or resting and we know he was coming off of drugs. All that is evidence from review of the video and it was also given in evidence by Constable Matthies. [ 80 ] From my review of the evidence it is clear that Mr. Gwyn is awake and sober enough to understand the questions being asked of him and to respond. When asked if he wants to contact a lawyer, he says “Ah, yes, I do.” He may be tired and sleepy, but he is awake enough to be able to understand what’s being told to him. He’s able to respond to the questions that are being asked of him.

He is not giving the same response over and over, and when Constable Matthies suggests that Mr. Gwyn go into the phone room, he resists. He says, “I don’t want to call a lawyer right now”. [ 81 ] When Mr. Gwyn gets back into the interview room after having been placed in the phone room to call a lawyer, he advises Constable Matthies that he didn’t call a lawyer because he didn’t want to. During that time while he was in the phone room for

approximately one hour he was laying on the ground resting/sleeping. [ 82 ] After a discussion about waiver, Mr. Gwyn ultimately waives his right to contact counsel at that time. The transcript of evidence shows that Constable Matthies says to Mr. Gwyn that, “Okay, so I’ve head from others that you want to talk, so –”. Constable Matthies confirmed in cross-examination that it had been communicated to her that Mr. Gwyn wanted to speak with her but no one asked Constable Matthies who had communicated that to her. In any event, it is clear from review of the transcript and video that Mr.

Gwyn pushes back against Constable Matthies when he chooses to and gives information when he chooses to. He participates in the discussion about waiving his rights. He knows what he wants in terms of being able to call a lawyer at some point down the road if he wants; and once they are able to figure that out, he agrees to waiving contacting counsel at that time. I find Mr. Gwyn to be participating in the interview. I find that he understands what is going on. I find that he knew that he was under arrest and that he had rights, including the right to silence and the right to the assistance of a lawyer.

I further find that there is nothing in his responses that suggest that he doesn’t have an operating mind [ 83 ] I find that there were no inducements, threats or promises made to Mr. Gwyn during this portion of the interview. In fact, Mr. Gwyn attempted to broker a deal for himself with Constable Matthies. He expresses to her that he has information and wants leniency in exchange for that information. I find that Mr. Gwyn is the driving force behind the attempts at making a deal, not the police.

In this initial part of the interview transcript, to page 54, he’s trying to get a promise or an inducement, but he is being resisted by Constable Matthies. Constable Matthies repeatedly tells Mr. Gwyn that she won’t make him any deals and reiterates that he has the right not to say anything. [ 84 ] In this period of time and as evidenced in the transcript and video, Mr. Gwyn admits to the possession of the firearm and the drugs. [ 85 ] In this case, I find that Mr. Gwyn’s decision to divulge information was by his own doing. His hope was self generated: Oickle at para 57 .

He wanted to broker a deal with the police; for his cooperation, he wanted leniency, but it was not the police in this case that spearheaded Mr. Gwyn’s confession it was Mr. Gwyn himself. [ 86 ] Defence gave some argument about underlying concerns with the reliability of Mr. Gwyn’s statement because for example, Mr. Gwyn said it was a non-automatic firearm that he possessed which was apparently not the right description or type of firearm. I find that Mr.

Gwyn’s description was honest but mistaken and I do not find that the errors he made in his statement were material or turn on the reliability or voluntariness of his statement. [ 87 ] I find from my review of the evidence that was before me including the testimony of each of the Constables that certainly up to the point in time of page 54 of the transcript and video that were made exhibits in the voir dire , Mr. Gwyn was not threatened, was not made any promises, was not induced, was not oppressed and had an operating mind.

Furthermore, I do not find there was any trickery by the police to elicit the statements made by Mr. Gwyn.

Third - April 2, 2019 at Page 55 of the Transcript and Onward [ 88 ] From my review of the evidence including the transcript and video of the interview from page 55 in voir dire Exhibit 6 and onwards, there was as admitted by the Crown statements made by Constable Matthies and subsequently Constable Prockiw that could be characterized as inducements or were inducements. [ 89 ] I have considered the arguments of the Defence that the entirety of the statement should be excluded but I find, that there is case law sufficiently recent to support severing the statement from page 55 onward: R v Varley , 2017 ABQB 776 at para 55 . [ 90 ] Accordingly, I find that the transcript and video statement made by Mr.

Gwyn on April 2, 2019 from page 55 of voir dire Exhibit 6 onward is severed as I find that there were statements made by Constable Matthies and subsequently Constable Prockiw that could be characterized as inducements or were inducements. [ 91 ] As such, I find that the Crown has not established beyond a reasonable doubt that the statements made by Mr. Gwyn after page 54 were not voluntary and should therefore be omitted from the trial evidence. Conclusion of Findings on Voluntariness [ 92 ] In this case, I find the evidence shows that Mr. Gwyn was treated fairly and appropriately by the police.

He was given a blanket, food and drink. The evidence shows that his requests to address his needs were responded to appropriately. Mr. Gwyn was not threatened or physically harmed in anyway. The transcript and video evidence shows that he was not subject to aggressive questioning by Constable Matthies. I find that the questions Constable Matthies asked were fair. Mr. Gwyn was allowed to sleep for short periods. He was given access to a lawyer. The first time he was given access, he chose to lay on the ground in the phone room to rest.

He did not appear to be under any stress and there was no evidence of any oppressive circumstances in this case. [ 93 ] With respect to an operating mind, for a statement to be admissible, it must be the product of an operating mind. The accused must have sufficient cognitive capacity to understand what he or she is saying and what is said, including the ability to understand the caution that the evidence can be used against the accused. The accused does not need to have any analytical ability or be capable of making a good or wise choice that is in his or her interest.

In this case, notwithstanding the evidence that Mr. Gwyn was sleepy and coming off of drugs, I find that he displayed sufficient cognitive capacity to understand the Charter and cautions given to him. Furthermore, he displayed in the transcript and video evidence an understanding and appreciation for the questions being asked of him and the information of what he was giving. [ 94 ] Accordingly, I find in consideration of all of the evidence that was before me of the surrounding circumstances in the voir dire that the Crown met its onus of proving beyond a reasonable doubt that the statements given by Mr.

Gwyn up to and including page 54 was voluntary. All portions of the transcript and interview after is inadmissible at trial and accordingly is to be excluded.

B. Has the Crown Proven Beyond a Reasonable Doubt That Mr. Gwyn Knew That theMagazine Cartridges and the Rifle Were Stolen? In Other Words, is Mr. Gwyn Guilty ofCounts 6 and 9? [95] In this case, Mr. Gwyn admitted in his statement to Constable Matthies that he possessed the rifle in question as early asMarch 26, 2019. This was a number of days before Mr. Gwyn’s arrest on April 2, 2019. We also know from the evidence of Troy Wiebethat the break and enter occurred in March and that the magazine cartridges and rifle in question were items stolen from Mr. Wiebe.

Itdoes not appear to be in issue that the break and enter was reported to have occurred on March 24, 2019. Two days after the break andenter, there is evidence that Mr. Gwyn was in possession of these stolen items. No explanation was provided as to how Mr. Gwyn cameinto possession of these items. [96] If there is proof of an unexplained possession of recently stolen property, the trier of fact may draw an inference. In R vKowlyk, (SCC), [1988] 2 SCR 59 the Supreme Court succinctly explained the “doctrine of recent possession” as followsat paragraph 12: In

summary, then, it is my view, based on the cases, both English and Canadian, which I have referred to, that what has been called the“doctrine of recent possession” may be succinctly stated in the following terms. Upon proof of the unexplained possession of recentlystolen property, the trier of fact may – but not must – draw an inference of guilt of theft or of offences incidental thereto.

Where thecircumstances are such that a question could arise as to whether he accused was a thief or merely a possessor, it will be for the trier offact upon a consideration of all the circumstances to decide which, if either, inference should be drawn.

In all recent possession cases theinference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the tierof fact is not satisfied of its truth, the doctrine will not apply. [97] The burden of proof of guilt remains upon the Crown, and to obtain a conviction, the Crown must prove beyond a reasonabledoubt that, in this case Mr.

Gwyn not withstanding no explanation having been provided, knew that the magazine cartridges and riflewere stolen. [98] In R v Farnsworth, 2017 ABCA 358, a recent Alberta Court of Appeal case, the Court discussed some factors that may beconsidered in making a finding of recent possession. The Court stated as follows at para 7: The inference the trial judge applied is contingent upon a finding of recency – that is, the trial judge must find beyond a reasonable doubtthat the appellant’s possession is recent relative to the fraudulent acquisition.

The trial judge correctly observed that a finding of“recency” is relative and incapable of any exact or precise definition. It is dependent on factors such as the item’s rarity, the readinesswith which it can be and is likely to pass from hand to hand, the ease with which it can be identified and the likelihood of transferability:[case citations omitted] [99] Considering the evidence that is before me on the record and considering the factors discussed in Farnsworth, I find thefollowing: a. Rarity: The magazine cartridges and the rifle are “rare” items.

Troy Wiebe gave evidence that the rifle was “custom built” and“only one like it in the World”. The magazine cartridges he painted the same as the rifle using the same paint schemes. These items arewithout doubt rare. b. Readiness: There was no evidence advanced by the Crown with respect to the ability to pass the magazines and rifle from hand tohand. However, Mr. Gwyn in his statement spoke of how he concealed the firearms and moved them from place to place.

I find aninference can be made that these items are not readily transferable, unlike the item involved in Farnsworth which in that case involved arental vehicle, the items in the present case are items which are prohibited without a license and therefore are not readily transferable.You cannot go into a store and buy magazines and a rifle like the ones that were stolen from Mr. Wiebe. c. Identifiability: In this case, these items were readily identifiable by Mr. Wiebe. They are rare, “custom built” and hand-painted byMr. Wiebe. Mr.

Wiebe was not able to identify the ammunition, but he was able to identify the magazine cartridges and the rifle at thetrial as the stolen items that were taken from his home and that were returned. These were the same items that were possessed by Mr.Gwyn. [100] The question here is whether an inference can be drawn from the unexplained recent possession of the magazine cartridges andrifle, to support a conviction of Mr. Gwyn on Counts 6 and 9: that he knew that the magazine cartridges (Count 6) and rifle (Count 9) thathe possessed were stolen. In my view the question must be answered in favour of the Crown. V.

Conclusion [101] I find the Crown has proven beyond a reasonable doubt that Mr. Gwyn possessed the magazine cartridges and the rifle knowingthat they were stolen. In conclusion, I find Mr. Gwyn is guilty of Counts 6 and 9. Heard on the 7th, 8th, 9th, 10th and 11th day of December 2020 and the on the 5th day of February, 2021.

Dated at the City of Calgary, Alberta this 16 th day of February, 2021. J.C. Price J.C.Q.B.A. Appearances: Kirsti Binns for the Crown Jeanine Zahara for the Accused