R. v. Read Date:, 2014 BCPC 329

Citation: R. v. Read Date: 20140715 2014 BCPC 0329 File No: 221281-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GARY KENNETH READ EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: D. Boblin Counsel for the Defendant: P.J. Wilson, Q.C . Place of Hearing: Vancouver , B.C. Date of Hearing: July 15, 2014

Date of Judgment: July 15, 2014 [ 1 ] THE COURT: Mr. Read is charged with theft of cocaine from the exhibit locker of the Burnaby RCMP between March 1, 2011, to March 31, 2011. [ 2 ] In 2010 and early 2011, the Burnaby RCMP Detachment exhibits were managed by two municipal employees of the City of Burnaby, the accused, Mr. Read, and another person by the name of Nadine Connor. Both Read and Connor had been employed by the City of Burnaby in their positions as exhibit custodians for over 10 years.

In addition to being employees of the City of Burnaby, both the Accused Read and Connor had special constable status within the RCMP. They were appointed as special constables pursuant to s. 7 of the RCMP Act . [ 3 ] There was another municipal employee who had been assigned to assist Read and Connor within the Burnaby Detachment to handle exhibits. That was a fellow by the name of Jim Levas, and he was employed since February of 2010 in that position. [ 4 ] The exhibit custodians took care of all of the Burnaby RCMP Detachment exhibits, which would include drug seizures, firearms, and money.

They were responsible for all exhibits moved into and out of the exhibit room and they were also responsible for the destruction of drug exhibits that had come to be there by virtue of seizure by the RCMP in other drug cases. [ 5 ] The drug seizures or the drugs that were seized were housed in a secure drug exhibit locker or in a safe inside the drug exhibit locker. This drug exhibit locker was situated in a rear storage room accessed by an exterior garage bay door which was secured and alarmed. The storage room within the garage bay was also secured with an alarm key pad.

The drug locker within the storage room was also secured by a lock and key. Both the Accused, Mr. Read, and Ms. Connor were the only persons who had access to this secured area. [ 6 ] Drugs are authorized for destruction by Health Canada in Ottawa.

Once authorized for destruction by Health Canada, the drugs are taken from the Burnaby exhibit locker to a special City of Burnaby burner where their destruction is supervised by the exhibit custodian or custodians who transferred them there for the destruction. [ 7 ] In June of 2010, sergeants of the Burnaby RCMP were tasked with leading an audit of the exhibits housed within the Burnaby RCMP Detachment. Several Burnaby RCMP members were assigned to the audit team.

Also, the employee who was mentioned earlier, Levas, was also assigned as part of the audit team. [ 8 ] The audit team began the audit by examining first all non-drug seizures which had been processed through 2010 and into the early part of 2011. During the audit, the officers noted certain irregularities, but none that are germane to this particular case. [ 9 ] On February 28, 2011, the audit team began auditing all the drug-related seizures. For about five days they went through the secure drug exhibit locker, trying to identify files related to drug seizures.

They pulled the seized exhibit manually and read aloud the information on the envelope, while the other constable input the audit findings into an audit exhibit log. [ 10 ] On March 10, 2011, they began, including Levas, examining the contents of several boxes of exhibits that had been marked for destruction situated in the rear exhibit storage room. Mr. Read and Connor were already in the rear storage room sealing up boxes with tape. There were approximately 12 boxes that were marked for destruction. [ 11 ] On March 10, the same day, at approximately 8:25, the audit team went out for coffee.

When they returned about an hour later, the boxes they had opened and were examining had been resealed; that is, taped back up. One of the officers began examining the contents of the resealed boxes immediately, as the other members of the audit team watched. In other words, they reopened the boxes. [ 12 ] At 9:45, one of the RCMP officers discovered that an exhibit bag within one of the resealed boxes contained 344.8 grams of cocaine, but the recorded weight as per the file details indicated there should have been 897 grams of cocaine within that bag.

At 10:25, the officers discovered another exhibit bag within one of the sealed boxes and that contained 72.9 grams of cocaine. The recorded weight as per the file detail indicated there should have been 94 grams of cocaine within the bag. Obviously there was a shortage in each of those cocaine bags. [ 13 ] The audit team notified the Burnaby RCMP senior management and told them about the discrepancies within the drug exhibits. [ 14 ] At 11:18, the audit team, as well as the supervisors and management of the RCMP Detachment, two members, advised both Mr.

Read and Connor that no further exhibits, including drug exhibits, were to be destroyed, and on March 10 again, this time at 1:40, the audit team returned to the exhibit locker. They spoke with Read and Connor and -- sorry, two of the senior officers, rather, came back to the exhibit locker and spoke with both Connor and Read, asking if they had any explanation for the missing drugs. Both Connor and Read were together. Connor indicated that they should talk to the members in charge of the original file. Read opened the vault safe, looked inside for the missing cocaine but to no avail.

He said that he might have put the cocaine in another box and destroyed it by accident. [ 15 ] These facts are taken from the Admission of Facts document that was filed as Exhibit 1 in these proceedings. [ 16 ] The opening of the Trial began with a Voir Dire for the Court to rule on the voluntariness of a confession made by the Accused to the police expert polygrapher/interrogator.

This Voir Dire did not involve the usual issues of whether the police induced an Accused to make a confession by using threats, physical violence, or promises or hopes of favourable consequences should the Accused confess. [ 17 ] In this case, the police expert polygrapher and interrogator, Police Officer Davidson pretty well used precisely the Reid technique when preparing to administer the polygraph test to the suspect (the Accused) and then right afterwards also to interrogate the Accused after he had failed the polygraph test.

[ 18 ] There is another issue relating to Charter right violations upon detention, not being advised of his right to counsel. I will address the issue of voluntariness first. [ 19 ] In this case, the expert polygrapher and interrogator was a senior officer who had been extensively trained and experienced in both administering polygraph tests and in using the Reid technique to interrogate subjects after they had failed the polygraph test. The Reid technique was originally designed to be used to effectively question suspects in criminal cases.

Initially its use was strictly an effective technique to be used by police officers to obtain confessions without ever having to resort to physical violence, threats, or inducements of any kind to get the suspect to tell all. [ 20 ] However, later, the police forces recognized that they might be able to successfully combine the Reid technique with the administration of the polygraph tests which were routinely being used by the police.

It was that combination which was utilized in this case; that is, utilizing the Reid technique during the administration of the polygraph test, and then using the Reid technique during the interrogation that followed after Mr. Read failed the polygraph test. [ 21 ] Briefly, the basis of the Reid technique is to use psychology to persuade a suspect to confess to his crime. There are no threats, promises, inducements, or use of physical force.

Instead, the police interrogator tries to befriend the suspect and make him comfortable with him personally, get him to relax in what would otherwise be a very stressful setting of a police station interrogation room with a hard-boiled detective doing the questioning. [ 22 ] The police officer gently probes, by way of conversation with the suspect, to find out what constitutes his moral fibre. In other words, what are the most important things in life to the suspect? That is the purpose of the questioning and that manner of questioning is to elicit that information.

The police officer will later on use these "hot spots" to persuade the suspect to follow his own moral instincts to tell the truth in order to safeguard the most important things in his life, be it religion, his family, his reputation, or whatever things are closest to his heart. [ 23 ] In the Case at Bar, during the polygraph process, the polygraph examiner/interrogator used the strategy of merging the traditional technique used to administer polygraphs with the Reid technique of questioning. The police officer created a comfortable and relaxed atmosphere for the Accused.

The police officer was soft spoken, he was friendly, he was empathetic, he was non-judgmental, and he was respectful. He was also patient and he appeared to be genuinely interested in getting to know the Accused as a fellow human being. He came across as a good listener, almost as a confidante. [ 24 ] This technique allowed the police officer to gently probe what things in life mattered most to Mr. Read. He was able to ascertain that the things which mattered most in life to Mr. Read were his two daughters and his reputation with his peers in the Burnaby Detachment of the RCMP.

This information would be vital information for the police officer to have should he be required to embark on Stage 2, that is, a Reid Interrogation following immediately after the Accused failed the polygraph test. [ 25 ] The Accused did fail the polygraph test. The polygraph examiner let him sit in the room alone for some 30 minutes. He told the Accused that he would be out analyzing the results of the test. In fact, he analyzed the results of the test very quickly with the help of another polygraph examiner to confirm his analysis.

That took only a few minutes, but planning for the next stage of the interrogation and to let the Accused "stew in his own juices", as the defence put it to the police officer. [ 26 ] When he returned to the room, he was no longer the friendly, patient, non-judgmental, empathetic listener that he was before. He turned from the well-known Dr. Jekyll into Mr. Hyde when he re-entered the polygraph room.

He was then able to utilize the intimate information that he had learned from the Accused during the first polygraph stage. [ 27 ] The taking of a polygraph test was first broached with the Accused by telling him that he need not agree to take the test, and that he was free to call a lawyer in advance for advice as to whether or not he should agree to take the test. He was further advised that, should he decide to attend the police station to take the test, he would be at liberty to leave at any time during the test if he wanted to.

He was told he would not be under police detention or arrest before, during, or after the polygraph test. This advance information, given prior to him coming into the polygraph exam, was repeated during the polygraph exam and also during the interrogation. [ 28 ] The Accused initially was given an ample number of days to make his decision about whether he wanted to come in or not. In this case, the Accused was actually going on holiday, so he called the police and asked if he could come in earlier for the polygraph test rather than later.

The police accommodated him. [ 29 ] The Accused freely came to the police station to take the polygraph test. He chose apparently not to seek the advice of a lawyer prior to coming to the test. As far as he knew and as far as he was told, the only proceedings would be for him to take the polygraph test. He did not expect nor was he told that an interrogation would follow should he fail the polygraph test. [ 30 ] During the interrogation stage, the interrogator was careful not to threaten or hold out any inducements to the Accused to "come clean".

Instead, he used the psychological approach of moral persuasion to convince the Accused that he should confess his wrongdoings. The idea was that if the interrogator could skilfully persuade the Accused that his own moral fibre demanded that he tell the truth, that was the message that the interrogator wanted him to see. If he felt obliged to tell the truth because that would be the only way he could sustain his daughters' and his peers' love and respect for him, then he would tell the whole truth.

The interrogation encouraged him to tell the truth right now, rather than continuing to tell lies and, as the polygraph operator and interrogator told him, otherwise he would be doomed to be outed down the line. [ 31 ] The interrogator's purpose was to persuade the Accused that his own morality and sense of conscience was telling him that the only way he could hope to keep love and respect from his daughters and peers was to tell the whole truth now, as opposed to later when it would be too late to salvage that love and respect because everyone would come to know then that he had been a liar. [ 32 ] The scenario where the polygrapher/interrogator uses portions of the Reid technique during the first stage, that is the polygraph stage, and then continues to use the Reid technique during the second stage, that is the interrogation stage, has been the subject of a number of court decisions where the courts, like this Court, had to deal with the issue of whether the confession that the Accused

ultimately made was done so "voluntarily", as that term in law is defined. [ 33 ] Ultimately, the Accused, Mr. Read, did make a confession that he had taken the cocaine from the exhibit locker and had disposed of it and destroyed it. [ 34 ] The cases that I have dealt with, and all the cases that I mention, I will not give formal citations for.

Instead, the cases will form part of the Record with their citations, and should anyone in the future wish to order a copy of this transcript, I will direct that the list of cases with their citations go along with the transcription of these reasons. [ 35 ] The cases that I have considered are as follows: R. v. Sinclair ; R. v. Singh ; R. v. N. ; R. v. Oickle ; R. v. Minde ; R. v. Hebert ; R. v. Green ; R. v. Wittwer ; R. v. Amyot ; R. v. Heinermann ; R. v. Kembo ; R. v. Collins ; R. v.

Grant . [ 36 ] The essence of these decisions is that the Reid technique is a technique that is permissible for the police officers to use. The issue to be resolved in each case is whether the statement ultimately given by the use of the Reid technique by the interrogator, is or is not admissible and that depends upon whether the will of the suspect or accused has been overcome. There are a number of different ways of phrasing that in the cases. One is that "the Accused must make a meaningful choice" to make a statement.

Another expression is, "if the suspect's will is overcome", then he is said not to be making a voluntary statement. [ 37 ] The cases that I have gone through talk about the techniques that are used and were used in this particular Case at Bar. [ 38 ] These techniques include the trickery that was used by the interrogator in this case. In this case, the interrogator orchestrated a card trick comparable to what was used in R. v. N. The card trick is done to show the Accused how reliable the polygraph test is.

The trick is no different than a card shark or a magician might do in asking somebody to pick a card and then the magician guesses which card it is. The different twist on this is that Mr. Read was told to pick a card and then asked while hooked up to the polygraph, whether it was number 5. He was told in advance that he should lie. The polygraph shows an "up tick" that is shown to Read. The idea is to show Read that the machine is exceedingly able to pick up any lies, be they consequential or inconsequential.

This is done during the polygraph administration stage. [ 39 ] The method of this card trick was addressed in Heinermann and in R. v. N. , and in R. v. Oickle , and each of the cases decided that the card trick is not, in itself, sufficient to cause what the courts termed as "a reaction of outrage by the community".

They said that it is certainly a factor, that is the card trick is certainly a factor in deciding whether or not ultimately, in all the facts of the case, the Accused's will was overcome so that he could not make a meaningful choice. [ 40 ] The polygraph examiner/interrogator, during the course of the polygraph did, through the use of the card trick and verbal statements, let the Accused clearly know that the polygraph was exceedingly reliable. Furthermore, during the interrogation stage, he advised the Accused that it was infallible.

Some of the cases that I have cited had similar commentary by the polygraph examiner/interrogator and the courts held that exaggeration was permissible as well, and that it was a factor, but not a conclusive factor, in deciding whether or not the will was overcome.

In other words, the police were allowed to do the card trick and the police were allowed to exaggerate the reliability of the polygraph machine. [ 41 ] The Defence argue that the atmosphere and the use of the Reid technique effectively was unfair, in that it lulled the Accused into believing that he had no choice but to make the statements that he did, because during the four- to five-hour interview with him, he was effectively beaten down so that when he finally confessed at the end, it was not a confession coming from a mind that was fully functioning on its own.

He had been beaten down or overcome by the psychological techniques that were used by the examiner. [ 42 ] The Defence argue that it was unfair that Read should be lured to the police station under the belief that he was only there for a polygraph and nothing more, when the police had other plans for him, that is, if he failed the polygraph, he would be interrogated. [ 43 ] The Defence argue that had Read been advised of everything that was to happen, he (

a) may not have come in voluntarily, or (

b) he would certainly have consulted a lawyer. Because he was not so advised, he came in freely, expecting one thing but getting another. [ 44 ] The Defence argue that part of the trickery also involved telling him that he would not be detained when he came into the police station, during the polygraph, or after the polygraph. The Crown say that, well, that was true. He was not detained prior to coming into the polygraph room, he was not detained when in the polygraph room, he was not detained during the interrogation, and he was not detained following the interrogation.

The Defence argued that, in fact, he was detained, but the evidence is clear that Mr. Read was told before coming in that he would not be detained, that he could leave at any time he wanted to and that he could call counsel at any time that he wanted to. While he was in the polygraph room, the same was repeated to him and then when the interrogation began, he was also told he was free to leave at any time and that he was not under detention; and in fact when he left the room he was still not under detention. [ 45 ] I watched the audio-visual videotape of the entire process with the polygraph interrogator and Mr.

Read very carefully. Counsel argued that Mr. Read was, in effect, almost brainwashed during the exhausting four-hour interviews and that he was effectively beat down. [ 46 ] However, when I watch the video, I come to a very different conclusion than did the Judge in the R. v. N. case. In the R. v. N. case, the Judge said that he had watched the video and it became evident that the police officer was brainwashing the Accused, that visibly the Accused was stunned, exhausted, confused, and scared and had a tired-sounding voice. I saw none of that with Mr.

Read in terms of his actions, words, or movements. [ 47 ] The Defence also argued that Mr. Read was misled by the Polygrapher and the Interrogator, the same person, because he was deliberately not told by him that he was the primary suspect, but he really was. I agree with Counsel that the police officers who testified were not fully frank about that matter. It took a lot of pushing and questioning before the officers would agree that, in reality, Read was the primary, if not the only, suspect at the time he was taking the polygraph.

What had happened is that the third employee, Levas, had already been exonerated and he was continuing to work there and as far as Nadine Connor was concerned, her polygraph test was

completed successfully before Mr. Read underwent his polygraph test. In fact, Connor had attended on the same day but hours before Read entered the polygraph room. [ 48 ] It is true that this becomes another lie by the officers in failing to disclose to Read that he was the prime, in fact probably the only, suspect. However, again the case law does allow the police officers to mislead or lie to an Accused in the course of their interrogation, as long as it does not amount to either inducement, threat, promises or, as is argued in this case, to breaking down the will of the Accused.

In this case, it is of course a factor but it is not a definitive factor at all. [ 49 ] Furthermore, the Defence had argued that the police had seized upon Read's concern about losing his job and that was part of what they had used to encourage him to take the test and therefore to speak out honestly. The case law talks about who brings the issue up first and if it is the Accused, then did the police officers confirm his concerns and worries or not? [ 50 ] In this case, it was Mr.

Read who brought up the concern about his job, and the police officer did not confirm that his worries were reasonable and he should be concerned about that. Basically, they acknowledged his concern and then moved on to another subject. I do not find that was something that the police officers did during the course of their interrogation of Mr. Read nor during the polygraph administration time. [ 51 ] The police officers or the polygrapher/interrogator had determined that what was very important to Mr. Read was his affiliation and connection to the RCMP.

Terms like "brotherhood" were used, "you're part of the brotherhood", "you're one of ours". That was a term that one of the other officers, I think it was Constable Lee, had said to the Accused following the administration of the polygraph. The polygrapher learned that that was important to Read and he followed up with that by addressing Read's desire to maintain his reputation for honesty with the RCMP members of the Burnaby Detachment. [ 52 ] Again, this is a situation where Read himself raised the issue and it was not an issue that the RCMP polygraph interrogator raised.

It was an issue, which according to the Reid Technique, the Polygraph Examiner/Interrogator was able to continue to use as a hot point to encourage the moral commitment by the Accused to make his confession. [ 53 ] Read at one point wanted to leave to go get his glasses and he was allowed to leave the interview room, go to the truck get his glasses, and then he voluntarily came back. That certainly is some indication that as far as Mr. Read was concerned, he was free to come and go as he wanted. [ 54 ] One of the cases that addressed that issue was R. v. Minde , if I have not mentioned this before.

That was one of the cases that provided that the police can let him leave and come back and accommodate him. That is something that, as long as he is not under detention, the police can do and are not misleading him in any way. [ 55 ] The Defence argued that the procedure of using the Reid Technique in this case was unfair and that it was contrary to what Oickle called fairness and fair play in the interrogation of an Accused.

In this particular case, however, it is my view that the police utilized the Reid Technique in such a way that other courts have ruled they can use the Reid Technique and not compromise the voluntariness of the statement. [ 56 ] There were, as in the other cases, areas where the police officer was not open and truthful, where the police officer lied to Mr. Read. But when one looks at the entire case of dealing with Mr.

Read, it does not amount to, in my view, the breaking down of his will such that he could not make a meaningful decision to give his confession. [ 57 ] The behaviours of the police were not, as one of the cases coined as "something that would outrage the community".

I think that particular case was dealing, though, with the idea of trickery, but one can expand that, in my view, to the cumulative nature of the interrogation, the polygraph and the conversations during the polygraph. [ 58 ] The end result is that, in my view, voluntariness has been proven by the Crown, and that the voluntariness results in the admissibility of the confession that Mr. Read made at the police station. [ 59 ] The only argument that would keep it out would be if Mr. Read's Charter Rights were violated.

Defence Counsel argued that his Right to Counsel was violated by the police in that they did not fully advise him of his Right to Counsel. Defence Counsel argued that they gave him only perfunctory advice as to his right to call counsel and they did not provide him with what is required under the Charter of Rights , that is, the informational component of the Charter warning vis-à-vis the right to counsel. [ 60 ] However, the Crown has provided a number of cases which are authority for the conclusion that if the Accused is not detained, there can be no infringement of his Charter Rights as guaranteed by s. 10(

b) of the Charter of Rights and Freedoms . The leading case on that was R. v. Hawkins , but that case has been followed in other decisions, as well. The R. v. Hawkins decision was of the Supreme Court of Canada in 1993. [ 61 ] The issue here is that Mr. Read came in on his own. Mr. Read was told prior to coming in that he could leave at any time he wanted, nor was he going to be detained. He was told that when he was in the polygraph room. He actually did leave on his own steam once to go to the car and then came back.

He was told again during the interrogation that he was not under detention, that he was free to leave. He was told after the polygraph test and after the interrogation was done that he was not under detention and he was free to leave. [ 62 ] The fact that the police had orchestrated that he not be detained, so as they would not have to give him his Charter Rights was something that the Defence argued showed the unsavoury nature of this particular investigation. The police officers resisted the suggestion by Defence Counsel that they had planned this for the purpose of avoiding telling him of his Rights.

They did not accept Defence Counsel's suggestion that the reason they did not detain him was so that they did not have to advise him of his Rights. Instead, they said that they did not detain him because there was no need to. They knew where he worked, where he lived, and there was no fear of his escaping or absconding. [ 63 ] I do not find that the police officers were frank and honest in rejecting Defence Counsel's suggestion. I find that the police

officers did orchestrate it such that he would not be under detention and therefore they would not have to give him his Charter Rights. However, once, in fact and in law, he was not detained, then any of his Charter Rights that he would have been entitled to, did not arise. [64] Accordingly, it is my finding that Mr. Read's non-detention resulted in non-activation of his Charter Rights, and therefore, theDefence argument that his Charter Rights were breached is dismissed. [65] Counsel, that is the decision.

I take it Counsel will agree to whatever evidence was taken and heard on the Voir Dire becomespart and parcel of the Trial, except for the results of the polygraph test. [66] MS. BOBLIN: That's right. (REASONS CONCLUDED) CASES CONSIDERED In The Case of R. v. READ Criminal File No. 221-281-1 222 Main Street 1. R. v. Oickle (2000), 2000 SCC 38 , 147 C.C.C. (3d) 321 (S.C.C.) 2. R. v. Spencer, 2007 SCC 11 3. R. v. Whittle, (SCC), [1994] 2 S.C.R. 914 4. R. v. Hebert (1990), (SCC), 57 C.C.C. (3d) 1 (S.C.C.) 5. R. v. Singh (2007), 2007 SCC 48 , 225 C.C.C. (3d) 103 (S.C.C.) 6. R. v. Kembo, 2010 sese 1044 7. R. v.

Greenhalgh, 2010 BCSC 1607 8. R. v. VJszlai, 2010 Besc 1827 9. R. v. Therens (1985), (SCC), 18 C.C.C. (3d) 481 (S.C.C.) 10. R. v. Suberu (2009), 2009 SCC 33 , 245 C.C.C. (3d) 112 (S.C.C.) 11. R. v, Moran (1987), (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.) 12. R. v. Teske (ON CA), [2005] O.J. No. 3759 13. R. v. Bazinet (1986), (ON CA), 25 C.C.C. (3d) 273

14. R. v. Hawkins, [1992] N.J. No. 147 15. R. v. Evans (SCC), [1996] 1 SCR 8 16. R. v. Reddy

(2010) BCCA 11 17. R. v. Heiverman

(2003) Carswell Ont. 2413 18. R. v. Tessling 2004 SCC 67 , [2004] 3 SCR 432 19. R. v. Go/dhart (SCC), [1996] 2 SCR 463 20. R. v. Spencer, 2001 sec 11 21.· R. v. Mann 2004 SCC 52 , [2004] 3 SCR 59 22. R. v. Lauri nte, 2010 BCCA 72 23. R. v. Wittwer, 2008 sec 33