R. v. D.D.K. Date:, 2016 BCPC 402

Citation: R. v. D.D.K. Date: 20161213 2016 BCPC 402 File No: 15604 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.D.K. BAN ON PUBLICATION 486.4 CCC RESTRICTED ACCESS EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R. HARRIS

Counsel for the Crown: R. Ellsay Counsel for the Defendant: S. McCausland Place of Hearing: Powell River , B.C. Date of Hearing: December 13, 2016 Date of Judgment: December 13, 2016 Introduction [ 1 ] THE COURT: The accused alleges his s. 7 Charter of Rights , the right to remain silent, was violated and therefore the statement given to the police on June 26, 2015, should be excluded.

The accused does not seek to have the statement excluded on the basis that it was involuntary, as found in the common law confessions rule. [ 2 ] With respect to the alleged Charter violation, the Crown advised the court at the commencement of the trial that the Crown would seek to enter the accused's statement not for the truth of its contents but for the purpose of cross-examination, should the accused choose to testify. [ 3 ] Based on the above, the trial commenced in a voir dire, where Constable Bakker, the arresting officer, and Constable Vensular [phonetic], the investigator and interviewing officer, testified.

The accused did not testify. [ 4 ] Filed as exhibits were a copy of the accused's interview and a DVD containing a video/audio recording of the interview. [ 5 ] The events surrounding the interview are on June 26, 2015, Constable Bakker had been asked to arrest the accused and bring him to the detachment.

It was Constable Bakker's understanding that Constable Vensular had received a report of a sexual assault identifying the accused as the suspect and that Constable Vensular wanted the accused arrested so that an interview could be conducted. [ 6 ] As such, at 1257 hours, Constable Bakker went to a residence in Powell River. The door was answered by the accused and he was placed under arrest. [ 7 ] At the time of the arrest, Constable Bakker provided the accused his s. 10(

a) and (

b) rights and the official police warning. The accused indicated that he understood and that he wanted to speak to a lawyer. [ 8 ] Constable Bakker then let the accused call his work to advise that he would not be in and to call his girlfriend so child care arrangements could be made. Constable Bakker and the accused then waited at the residence for the accused's girlfriend to arrive and assume responsibility for the children.

Once the accused's girlfriend arrived, Constable Bakker transported the accused to the local detachment, arriving there at 1325 hours. [ 9 ] At the detachment, Constable Bakker assisted the accused in contacting counsel. In this regard, he received from the accused a phone number for a lawyer. Constable Bakker called the number and spoke to an assistant, who advised that the lawyer did not handle criminal matters and provided the name and phone number for Ms.

Stacey McCausland. [ 10 ] Constable Bakker provided the information to the accused and, in doing so he made it clear that it was entirely the accused's decision as to which lawyer he contacted. The accused elected to speak to Ms. McCausland. Constable Bakker made the necessary arrangements for this to occur and the accused was on the phone with Ms.

McCausland from 1338 to 1342. [ 11 ] Once the accused was taken off the phone, Constable Bakker placed him in cells, thus ending his dealings with the accused. [ 12 ] At approximately 1950 hours, Constable Vensular retrieved the accused from cells and brought him to an interview room. Constable Vensular estimated it took one to two minutes to move the accused from cells to the interview room. While they moved, Constable Vensular believes they engaged in general conversation.

There was no discussion regarding matters related to the investigation. [ 13 ] At 1952 hours, the video shows Constable Vensular and the accused enter the interview room. The accused was placed in a chair in the corner of the room. To the accused's immediate right was a table. The room appeared to be spacious, with other chairs. Constable Vensular sat on a swivel chair with wheels. For portions of the interview, Constable Vensular sat at the table, with the accused to his right. As such, the corner of the table would usually separate the two.

At times, Constable Vensular would roll his chair and directly face the accused, and on one occasion Constable Vensular stood over the accused as he spoke to him. Throughout the interview, Constable Vensular used normal speaking tone and volume. There was no evidence of any threat, promise or inducement or demeaning of the accused. [ 14 ] Near the latter portion of the interview, Constable Hewitt, who had been monitoring the interview, replaced Constable Vensular.

Constable Hewitt's tone and approach cannot be described as aggressive, but it certainly was more pointed than that of Constable Vensular's. [ 15 ] The interview ended at 2136 hours. There were four instances during the interview where Constable Vensular left the room. The longest absence was for approximately 10 minutes. At no time during the interview or when Constable Vensular was absent did the accused show signs of heightened emotion or anxiety.

[16] During the interview, the accused made 17 comments related to instructions that he had received from counsel in relation to notsaying anything. My calculations are based on clear statements and do not include comments that might lead to the inference of anexercise of right to silence. [17] A review of the interview shows that it started with Constable Vensular confirming that the accused spoke with counsel, thatany threats or promises might have been made do not mean anything.

Constable Vensular then received from the accused informationabout the accused's hobbies; his age, 30 years; his living circumstances and a general outline of the allegations. [18] On page 4 there is some discussion about the accused's drinking and page 5 there is discussion about the accused's work andsome discussion regarding a possible motive that the complainant may have had for lying. Again, on page 7, there are some commentsfrom the accused regarding suggestions about his drinking. In total, the accused may have spoken for about two to three minutes.

Hedenied the allegations and politely repeated that he did not want to say anything. [19] Of note and of concern are the following: Comments where it was suggested that the lawyer's advice to remain silent mayharm the accused's family and that the lawyer does not care about the accused's family. [See pages 9 and 13]. These comments createthe perception that the lawyer's advice would harm the accused's family and that the lawyer is not concerned, if that were to happen. [20] A further concern is the suggestion that by remaining silent a judge may be unduly influenced.

Specifically, ConstableVensular stated, at page 11: We want to know your side of the story here, [D.D.K.]. So when this goes to court [sic] ... judge doesn't think you're a cold-hearted,callous, unemotional predator. [21] These comments inaccurately create the perception that by the accused exercising his right to silence that a judge will drawadverse inferences and, further, that the accused would not have an opportunity to explain his side of the story in court. [22] I am also concerned by Constable Hewitt's comments where he stated, at pages 11 and 12.

At page 11: So, everything I seen, you look like a guilty person to me. [23] It then continues at page 12: These are all the signs of a guilty person. You're not saying, "I didn't do this" ... “Sorry, my lawyer told me to say nothing." [24] These comments suggest that exercising one's right to silence is a sign that a person is guilty. Moreover, Constable Hewitt waswrong, as the accused had made previous denials. Position of the Parties [25] Counsel for the accused argues the evidence establishes that the accused's right to remain silent was overborne in all of thecircumstances.

In support, counsel points out the number of times that the accused indicated that he wished to remain silent. Specifically, every time the accused indicated a desire to remain silent, that he was met with negative comments and continuedquestioning. She also points out her client's lack of experience with the criminal justice system, as well as the officer's conduct inassociating negative comments to counsel.

Counsel also pointed to the accused's body language in support for a finding that theaccused’s will to remain silent had been overborne. [26] In all of the circumstances, counsel argues a breach should be found and, if so, then the statement is inadmissible, because sucha finding would necessarily impact the voluntariness of the statement. [27] Counsel relies on the following: R. v. Davis, 2011 ONSC 5564; R. v.

Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405; R. v.Smith, 2011 BCSC 1695. [28] The Crown argues when one examines the entirety of the interrogation, one must focus on the impact or outcome in order todetermine if the accused's voluntary decision to remain silent was overborne by the police tactics. Further, when one engages in thistype of analysis, according to the Crown, it is clear that, even to the very last of the statement, the accused maintained his exercise ofright to silence. [29] In support, the Crown relies on the following: R. v. Oickle, [2002] S.C.J. No. 38; R. v. Singh, 2007 SCC 48 , [2007]S.C.J.

No. 48; R. v. Williamson, 2011 ONSC 6584 , [2011] O.J. No. 5161; R. v. Cantelon, [2010] O.J. No. 3296. The Law [30] The accused asserts his right to silence, as enshrined in s. 7 of the Charter, was violated. As such, the court must determine ifthe accused has established, on a balance, a breach. If no breach is found, the court must then consider if the Crown has proved beyonda reasonable doubt that the statement was voluntary. As a starting point, it must be remembered that the s. 7 right to silence must be

analyzed, with an awareness of the competing interests. [31] On the one hand, an individual has the right to choose to speak with authorities; and, on the other, society has an interest inuncovering the truth as it relates to criminal investigations. [32] In R. v. Hebert, [1990] 2 S.C.R. No. 151, Madam Justice McLachlin set out the parameters of the s. 7, right to silence.

Theseparameters assist in achieving the balance of the right to silence and the state's interest in obtaining truth in criminal investigations. [33] Some points are of assistance, which are found at page 184, wherein she states: First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused hasretained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercoverofficers and the accused chooses to volunteer information, there will be no violation of the Charter.

Police persuasion, short of denyingthe suspect the right to choose or depriving him of an operating mind, [do] not breach . . . silence. [34] The above was also cited in R. v. Singh, 2007 SCC 48 , [2007] S.C.J. No. 48, at paragraph 46. [35] It is clear that police may use legitimate persuasion in an effort to encourage a detained person to speak. Of course, limits areset by the Charter and the common law on such persuasive tactics. Nevertheless, it is permissible for the police to engage in questioningof an accused.

In this regard, the persistent questioning by police, in the face of statements that a detainee wishes to remain silent, can bepermissible and not necessarily a violation of an individual's wish to remain silent. Despite this, there remains limits on how far thepolice can go. [36] In Singh, at paragraph 47, Madam Justice Charron commented: First, the use of legitimate means of persuasion is indeed permitted under the present rule - it was expressly endorsed by this Court inHebert. This approach is part of the critical balance that must be maintained between individual and societal interests.

Second, the law asit stands does not permit the police to ignore the detainee's freedom to choose whether to speak or not, as contended.

Under both commonlaw and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remainsilent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to theauthorities. [37] Then, at paragraph 53, she stated: It must again be emphasized that such situations are highly fact-specific and trial judges must take into account all the relevant factors indetermining whether or not the Crown has established that the accused's confession is voluntary.

In some circumstances, the evidencewill support a finding that [the] continued questioning by the police in the face of the accused's repeated assertions of the right to silencedenied the accused a meaningful choice whether to speak or to remain silent: see Otis. The number of times the accused asserts his orher right to silence is part of the assessment of all of the circumstances, but is not in itself determinative.

The ultimate question iswhether the accused exercised free will by choosing to make a statement: Otis, at paras. 50 and 54. [38] With respect to the issue of balancing the investigative interests of the state as against the accused's right to silence, I found theanalysis contained in R. v. Cantelon, [2010] O.J. No. 3296, to be of assistance in this regard. Justice Glass provides a useful

summary atparagraphs 22 to 27, which reads: Analysis 22 How far can investigators proceed before they create a wall of inadmission of statements that the person provides? Although courtshave held that a person enjoys the right to silence pursuant to the Charter of Rights and Freedoms in Canada, there is no right not to havethe police investigators speak to him or her. See R. v. Singh, 2007 SCC 48 , [2007] S.C.J. No. 48 at paragraph 28. 23 Continued questioning by the police will not cause a court to exclude the statement automatically.

The full context of the factssurrounding the statement must be considered so that the voluntariness of a statement is fact-driven. Both, R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38 and R. v. Singh (supra) considered this. In other words, taking one isolated event often is not sufficient toexclude a statement as not meeting the modern confessions rule. 24 Both the Singh (supra) and the Oickle (supra) cases involved extensive and persistent police interviews.

The Supreme Court ofCanada accepted that police may continue even when the person states that he or she does not want to provide a statement. 25 In Singh (supra), the Supreme Court recognized that admissions might be kept out of evidence if they resulted from systematicallybreaking down an operating mind and undermining one's right to silence. However, at paragraph 53, the Supreme Court pointed out thatthe determination whether a confession is voluntary will depend on the facts of any case.

The Court stated that continued policequestioning in spite of a person repeating an assertion to remain silent might amount to a denial of a meaningful choice for a person tospeak or to remain silent. The determination for the court is to consider the global picture and attempt to find out whether the personexercised a free will by choosing to make a statement to the police. 26 In Oickle (supra), the Court had a situation of persistent questioning that often was accusatorial but not hostile or aggressive orintimidating.

There, the interviewer suggested that the accused person would feel better and that his fiancé and the community wouldrespect the accused man for admitting his problems. The Supreme Court took all the examples of the police interview in context andconcluded that none of the statements contained an implied threat or promise. There was no objectionable conduct by the police officerwhen the person questioned the accused in a gentle and reassuring manner to gain his trust. In that case, as with Mr.

Ma, the officer wasalways courteous, did not deprive him of food, sleep or water, allowed washroom accessibility, and always told him his rights.

27 Police investigators are not restricted from talking with an accused person. Once the individual states that he does not want to make a statement on the advice of counsel, the police may continue conveying information about the investigation. Police continue speaking and questioning an in-custody person at their peril with continued questioning for a statement.

They proceed with the risk that the person feels that he must answer questions, that he might become no longer resistant to the constant questioning in spite of his lawyer's directions, and that he is forced in his own mind to abandon the benefit of consulting a lawyer by giving a statement. Analysis [ 39 ] After considering all of the facts and the relevant legal principles, I find the accused did, on a number of occasions, state his desire to remain silent. These statements did not temper Constable Vensular. Rather, he remained steadfast in his questioning.

Further, comments made regarding counsel’s lack of concern for the accused’s family, and what the exercising of the right to silence may mean and how exercising one's right to silence may look to a judge is all conduct that must be strongly denounced. [ 40 ] Despite this, and in the circumstances, the totality of the conduct in the unique circumstances before this court, demonstrate that the accused's right to silence was not violated. I observed that the accused's statements about work and drinking preceded the negative comments referred to above.

As such, it cannot be said that the comments impacted the accused's desire to remain silent. In fact, his final comments in the statement are just that; the accused exercising his right to remain silent. As such, I do not find, on a balance, that the accused's right to remain silent, as contained in s. 7 , were violated. [ 41 ] As to the voluntariness of the statement, I am satisfied beyond a reasonable doubt that the comments were the product of an operating mind, free from threats, promises, inducements, oppression and police trickery.

For the above reasons, I conclude that the statement is admissible for the purposes of cross-examination. [ 42 ] I thank counsel for their able arguments on that. (RULINGN CONCLUDED)