R. v. Segstro Date:, 2014 BCPC 360

Citation: R. v. Segstro Date: 20140909 2014 BCPC 0360 File No: 31760-1 Registry: Dawson Creek IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARIE SUSAN SEGSTRO RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M. J. BRECKNELL Counsel for the Crown: T. Golinsky Counsel for the Defendant: G. Leven Place of Hearing: Dawson Creek , B.C. Date of Hearing: September 9, 2014 Date of Judgment: September 9, 2014 [ 1 ] THE COURT: Given that information, I am in a position to make a ruling on the issue raised in the Voir Dire, which is

whether or not the utterances made by the Accused in her conversations with then Staff Sergeant Traichevich was voluntary or not. [2] I would first say that, based on my recollections and certainly substantiated by the Hodgson decision, found at (SCC), [1998] 2 S.C.R. 449, even if the Crown had not effectively acknowledged that Staff Sergeant Traichevich was a person inauthority, I think the provisions set out in Hodgson clearly would indicate to any person subjectively and certainly it could be found thatit would relate to the Accused subjectively, that she believed on the day in question she was dealing with a person in authority from eitherone of two perspectives.

One that she was dealing with a peace officer, because indeed that is what the Staff Sergeant is. He cannotescape that cape of authority. He is always a peace officer, 24 hours a day, 7 days a week. That is what peace officers are. They kneweach other from their employment where she worked at the RCMP detachment, so she knew he was a peace officer, and equallyimportantly, I think the Accused has raised the issue as to whether or not he was a person in authority in his capacity qua employer. [3] Now, there is, of course some knowledge that has to be applied here.

When it comes to human resources issues involving civilservants, although the detachment commander of an RCMP detachment is the boss of the detachment, for human resources purposes ithas to be another public service employee who has to be the authority over the public service employee, and that would have been theofficer manager, but I mean, let's face it, anybody who works in a small detachment, they all know the boss is the detachmentcommander.

It does not matter what lines of authority there are written in paper or policies, if the detachment commander thought youwere doing a good job, he or she could certainly make your life easier and better, if the detachment commander thought you were doing apoor job, equally they could make your life more difficult. [4] So the Staff Sergeant arrives on the day in question at Ms. Segstro's property. He goes there after having to make some effortsto find out indeed where she was living at the time.

The reasons why he had to make those efforts was because she had largely droppedoff the map so far as the detachment was concerned. She was an employee of the detachment, but she had been off ill for a lengthyperiod of time. Efforts were made to contact her, he was advised, by various people at the detachment, to check up on her and find outhow she was doing, but she had not returned those calls.

Some of the calls apparently came from Staff Sergeant MacDonald, who was bythen the detachment commander, and some were made by the officer manager. [5] So Staff Sergeant Traichevich decides to go out to her residence, once he finds out where she lives, which at this point she isliving in a small community in Alberta just across the border near Dawson Creek. He went there on July 23rd, 2012. [6] Now, one has to put a little bit of perspective as to the reason why he went there.

He says, in his evidence in the trial, that bythe spring of 2012 there had been consideration given as to whether or not the missing money from the detachment may be a criminalact. [7] Staff Sergeant MacDonald undertook the investigation. We have heard subsequently from Staff Sergeant MacDonald in thecourse of the trial proper that he was making various inquiries of various agencies and doing an internal review to see if he could piecetogether where the money had gone missing, although he at that point in time was of the view it was an administrative error mostprobably, rather than a criminal act.

He was tasked with that job by Staff Sergeant Traichevich, because the north district inspector,Inspector Haring, was making inquiries.

As a result of discussions with Inspector Haring, it was agreed that somebody should go andspeak to the Accused, and that is why the Staff Sergeant went out to her residence on July 23rd. [8] The Staff Sergeant said, in his evidence in the Voir Dire, that when he went out to speak to the Accused he had already spokento Inspector Haring and that they had in their discussion decided it was necessary to speak to the Accused, because there may be, as theStaff Sergeant said in his evidence in the Voir Dire, a documentation issue. [9] The Staff Sergeant also said that prior to going out to visit the Accused he believed her to be a dedicated staff person.

He wasconcerned as to her welfare arising from her illness, and that he went seeking an explanation for the $6,500.00 that could not beaccounted for. [10] He went out to her residence alone, in plainclothes because that was his general duty clothing at that time, given his rank andposition, and he got there late morning.

He said he went out there for two reasons: one, as an employer with a genuine connection andconcern for her welfare, and that he was concerned that she was not getting back to the detachment, despite their repeated calls; andsecondarily, he said, to ask about the $6,500.00 that they could not account for. [11] When he arrived, he parked in the gravel driveway, got out of his vehicle, and at that point the Accused came out of theresidence to greet him. She stood on the deck of the residence, and he stood on the lawn. He said that is the positions they occupiedthroughout the conversation.

He noted her to be distraught, crying, and talking quite quickly, and she asked why he was there, sayingthat she had just spoken to someone at the detachment. She had a cordless phone in her hand, but she did not say at that point, accordingto his evidence, who she had spoken to at the detachment or the reasons why she had spoken to anybody at the detachment. [12] He said he remained on the grass and spoke quietly to her about how she was doing and was concerned about her emotionalstate. She replied "How does it look like I am doing?" She was crying and distraught.

Then they started to speak about her medicalissues and her doctor's appointment. That segued into a discussion about how the Accused had seen one of the local constables at thedoctor's office when she was attending there for an earlier appointment. At that point according to the witness, Staff SergeantTraichevich, her demeanour changed and she started to talk about the constable and his family. He noted that the Accused did not appearphysically well generally.

She did not appear to be dressed for the day, even though she had a doctor's appointment she had relayed tohim coming up in a very short period of time. [13] There were no recordings made of the discussion, only some notes made in the Staff Sergeant's notebook after the events. [14] The Staff Sergeant said he utilized the reference to the constable that had been spoken about by the Accused, because it was thesame constable who had been the constable involved in seizing the $6,500.00 that was unaccounted for.

So he raised that issue andnoted in the discussion with the Accused that there was some notations in the file of "SD". There was a discussion about what "SD"stood for, and it appeared as a result of that discussion it stood for the term "safety deposit", i.e. a safety deposit box. He said that, whenhe raised that issue, the Accused stated that she remembered it and that the money had sat in the locker and had not been counted for a

long time and that she had approached both him and another police officer, Cpl. Rutledge, and that there was some discussions about whether it should be transferred to the Receiver General for Canada's account. Then she uttered the words, according to the witness, "We put it in the main locker." [ 15 ] Then they had a further discussion about what the term "SD" stands for.

He asked the question, she asked it back, "What is SD?" He said he thought -- he believed it referred to the safety deposit box at the local bank. [ 16 ] Then she said something, according to his notes, of "Yeah, maybe I put that," but it was confusing and mixed up. [ 17 ] He then asked "Do you know where it is?" [ 18 ] And her reply was "In the locker." She then said, in answer to a question of the Staff Sergeant, "No, it was just in the locker. Milo, "referring to Staff Sergeant MacDonald, "asked about that too.

He said he needed to talk to me about exhibits." [ 19 ] Now, I will pause there momentarily. [ 20 ] Defence counsel suggests that that somehow links the telephone conversation she had just finished with the detachment to those words, but there is no evidence before the Court that she was referring to the recent telephone conversation when she uttered the words about having spoken to Staff Sergeant MacDonald, just that she had spoken to him about that issue. [ 21 ] They then talked about the fact that she was going to a doctor's appointment in very short order.

Staff Sergeant Traichevich offered to give her a ride, and she declined. He asked her if she could please call the acting officer manager, Ms. Levins, or Staff Sergeant MacDonald, and that she should contact the Public Service to ensure that her pay and benefits were maintained during her illness. And then he left. [ 22 ] He said that during his conversation with the Accused she was generally quick to reply, "but seemed not to want to talk about it" was the term he used. I presume by that he means the money, although it could equally mean that she did not want to talk about her illness.

He did not clarify that. [ 23 ] He said the conversation was approximately 20 minutes. He remained on the grass. They were approximately four metres apart. She was in an elevated position above him. He spoke to her in a normal speaking voice throughout.

That he did not offer any threats, inducements, and did not carry on when she said she had to go to the doctor's appointment. [ 24 ] He did note that when she began to refer to the constable who was at the doctor's office when she attended for a previous appointment, a lot of her emotions calmed and she became more composed. [ 25 ] The Staff Sergeant clarified his evidence today by saying that when he went to see the Accused it was over her wellbeing and over the money that was missing. He said he did not give a police warning, because he did not consider her a suspect per se.

He was centred on the concerns of the money not being accounted for, and given that she was the exhibit custodian and was the last to document the money, that she may have some information as to where it could possibly be. [ 26 ] When being cross-examined, he acknowledged that there was, at least in the answers given by the Accused during the conversation, there seemed to be some confusion and mix up about the safety deposit box.

He acknowledged that he suggested to the Accused that electronic records seemed to indicate that that is what occurred. [ 27 ] He acknowledged that within the detachment sometimes policies regarding the movement of money from the detachment to the bank were not adhered to, because it was a cumbersome process that required at least two people to go to the bank to make a deposit. [ 28 ] When suggested to him directly by Defence counsel that prior to the meeting that the Staff Sergeant had suspected criminal issues regarding the money, he said that he had a feeling of disbelief.

He was not convinced the money was stolen.

He says, "In my mind there was an explanation or an administrative issue as to where the money went somewhere, and I was not convinced it was criminal behaviour." [ 29 ] Although he did acknowledge that as a police officer he always has to maintain that it is possible that there was some criminal behaviour, but he refused to agree with Defence counsel that he was suspicious that there was criminality, because he said in response to it being suggested to him that his suspicions pointed to criminal behaviour, his answer was it was possible, she was the last to document the exhibit concerning the exhibit, "but I was not convinced it was a theft." [ 30 ] He maintained his view that he went out to visit with the Accused on that day in 2012 because he was an employer concerned about an employee's welfare and health issues and that the $6,500.00 that was missing from the main exhibit locker that indicated through the electronic system that the Accused was the last person to deal with it and that as her supervisor he needed to speak to her about that issue to get an explanation to see if she could shed some light on things, because she would not return phone calls placed to her residence from the detachment. [ 31 ] The issue here is, was the utterances made by the Accused voluntary? [ 32 ] I would not go so far as to describe what occurred as a statement.

Nobody said, "Okay, now I am going to ask you some specific questions about specific topics. I want some answers to these specific questions." It was effectively a dialogue. [ 33 ] In any case where voluntariness is at issue regarding a statement, the Crown bears the burden of proof to prove that the statement was made voluntarily beyond a reasonable doubt. That is well founded and can be historically traced back to the decision of Ibrahim v. The King , found at [1914] A.C. 599 , a decision of the English Court of Appeal. That thread continues throughout the legal jurisprudence of the Commonwealth up to today.

[ 34 ] I have listened carefully to the evidence given by Staff Sergeant Traichevich.

I have listened to the submissions of counsel with regard to whether I can find a doubt as to whether or not the statements uttered by the Accused were voluntary or not, and having heard the evidence and listened to the submissions, I come to the conclusion the Crown has convinced me beyond a reasonable doubt that the utterances made were voluntary. [ 35 ] Now, there can be some argument made as to whether or not the Staff Sergeant's interests in the $6,500.00 was more or less than his interest in the Accused's welfare, but that, in my view, based on the evidence he has given, is mere speculation.

He had an interest in that topic, but I accept his evidence that he was going there to ask about -- and effectively ask for some assistance, for an explanation that might help him go and solve the issue. He was not out there for the purpose of prying to see whether he could satisfy himself that he had either strong suspicion or reasonable and probable grounds to make an arrest. He was an employer concerned about his employee, and he was hoping that she could provide an explanation.

On that basis I conclude -- as well as the fact that demeanour and the way that the conversation went on and the entire environment of how the conversation was carried out, all satisfies me that the utterances made by the Accused were voluntary as it is known at law.