R. v. Fedan, 2013 BCSC 1547

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Fedan, 2013 BCSC 1547 Date: 20130711 Docket: 91944-2 Registry: Kamloops Regina v. Wayne Rodney Fedan Before: The Honourable Madam Justice Kloegman Oral Reasons for Ruling on Voir Dire #1 Counsel for the Crown: B. Caffaro Counsel for the Accused, Mr. Fedan: S. Tate J. Knight (Articled Student) Place and Date of Voir Dire #1 Hearing: Kamloops, B.C. July 2-5, 9-10, 2013 Place and Date of Judgment: Kamloops, B.C. July 11, 2013 [ 1 ] THE COURT: The accused, Mr.

Fedan, was involved in a catastrophic single vehicle accident on March 20, 2010, at about 1:30 in the morning. There were three occupants inside the vehicle which was a black truck. Bystanders witnessed one of the occupants, a female, lying inert on the ground. Two males were seated in the front of the cab of the truck. The male in the driver's seat was injured, but able to crawl over the other male in the passenger's seat and exit the truck. The other male in the truck later died in hospital. [ 2 ] The accused was the sole survivor of the crash.

He has been charged under s. 255(3) of the Canadian Criminal Code with impaired driving causing death of the female and other male occupant of the truck. He has also been charged under s. 255(3.1) of the Code for operating a motor vehicle while the concentration of alcohol in his blood exceed 80 milligrams alcohol in 100 millilitres of blood and causing the death of the other two occupants.

Finally, the accused has been charged with dangerous driving causing death pursuant to s. 249(4) of the Criminal Code . [ 3 ] The accused applies on this voir dire for the exclusion from evidence at trial of certain statements made by him in the presence of police officers, and certain evidence obtained by the police in furtherance of their investigation. The basis of his application is that the statements and other evidence were obtained from him in breach of his Charter rights under s. 10(

a) and (

b) and s. 8 of the Charter of Rights and Freedoms . In particular, the accused alleges that Constable Penman, the lead investigator on the file, committed a number of egregious errors which taken in their totality reveals police conduct that may not amount to bad faith, but does amount to a careless disregard for the rights of the accused.

Thus the conduct of Constable Penman, from his arrival on the scene until the accused received both the informational and implementational components of s. 10 while in hospital, must be reviewed. [ 4 ] I found Constable Penman to be an honest and straightforward witness and I accept his rendition of events as best as he was able to recall with the assistance of his notes and occurrence report. [ 5 ] At approximately 1:09 in the morning on March 20, Constable Penman received a radio dispatch report of erratic and possibly impaired driving of a black truck, B.C. licence plate number BD7411, in the area of 12th and Lethbridge Street in Kamloops.

He set out to locate the truck without success. [ 6 ] At about 1:29 in the morning, Constable Penman received a report of a single vehicle rollover on the 700 block of Mackenzie Avenue, close to the area where the complaint of erratic driving had originated. When Constable Penman arrived at the scene he ascertained that the badly damaged vehicle bore licence plate BD7411 and was the black truck for which he had been looking. [ 7 ] Kamloops Fire and Rescue, Emergency Health Services and other police were already there.

He noted paramedics putting a male on a stretcher, other paramedics assisting a male inside the truck, and a body lying on the ground under cover of a sheet. [ 8 ] Constable Penman was tasked by a senior officer to take on the primary investigation of the incident.

At that time in his career, he had had about two and a half years' experience with the RCMP, no experience with catastrophic accidents, and felt overwhelmed with the severity of the scene and the enormity of what he had to process. [ 9 ] In a brief conversation with one of the paramedics, he learned that the male in the care of paramedics Peter Flor and Aleah Morris, was the driver of the truck. This male was later identified as the accused, Mr. Fedan. [ 10 ] At about 1:50 in the morning, Constable Penman entered the ambulance in order to confirm that the accused was the driver and

to assess his consciousness and state of mind. Constable Penman stood at the back of the ambulance by the patient's feet. He informedthe accused that he was under investigation for offences under the Motor Vehicle Act and criminal negligence causing death. He advisedthe accused he did not have to say anything, but anything he said could be used as evidence. The accused indicated to Constable Penmanthat he understood. Constable Penman asked him to identify himself and the accused said he was Wayne Fedan. Then Constable Penmanasked him who was the driver and the accused said he was.

At that point, Constable Penman exited the ambulance to speak further withthe paramedics. [11] At about 1:54 a.m., he re-entered the ambulance to determine from the accused the number of passengers in the truck in case hehad missed someone. Constable Penman advised the accused again that he was still being investigated under the Motor Vehicle Act andfor criminal negligence causing death and anything he said may be used against him. Constable Penman also told the accused he had aright to call a lawyer.

The accused confirmed that he understood and then proceeded to answer Constable Penman's query about thenumber of other people in the vehicle. The accused said, “Ken and his girlfriend, Brittany.” [12] Constable Penman instructed Auxiliary Constable Goertsen to accompany the accused in the ambulance to the hospital in orderto maintain continuity of the evidence. Constable Goertsen had been in the ambulance during Constable Penman's second conversationwith the accused. Constable Goertsen rode in the ambulance with the accused to Royal Inland Hospital.

He observed a conversationbetween the accused and the paramedic, Ms. Morris, in which the accused told her that he had a few drinks earlier that evening. [13] At the hospital, Constable Penman asked the accused at about 2:09 a.m. whether the accused had been drinking. Mr. Fedananswered “Two drinks.” Constable Penman said when he leaned over to smell the accused's breath he detected a mild odour of liquorfrom about six inches from the accused’s mouth. [14] Constable Penman contacted a superior officer for advice and three minutes later he made a blood sample demand on theaccused.

The sample was taken by medical personnel at about 2:36 in the morning. [15] At some point, between 3:02 and 3:52 in the morning, Constable Penman learned the second passenger had died. ConstablePenman informed the accused of his right to counsel and asked him for a statement. Constable Penman told the accused he was notobliged to give a statement and the accused declined, saying he wished to speak to a lawyer before speaking to the police. ConstablePenman made no efforts to facilitate the accused speaking to a lawyer. He returned to the detachment to finish off his shift. [16]

Section 10(

a) and (

b) of the Charter of Rights and Freedoms states: Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; and (

b) to retain and instruct counsel without delay and to be informed of that right. [17] Crown submits that the above facts do not support a finding on the balance of probabilities that the accused was under detentionor arrest which is necessary to trigger the accused's Charter rights. [18] Defence submits that the accused has met the onus of proving that a psychological detention existed, commencing at the timeConstable Penman started questioning the accused in the ambulance at about 1:50 in the morning. [19] It is conceded by defence that the accused was not under arrest from the time of the accident to the time of the blood demand.

Itis further conceded that the police had not placed any physical constraints on the accused. The accused was in a neck brace and lyingsupine on a clamshell stretcher, but this had been done for the accused’s protection from further injury. [20] Crown relied on a number of authorities to support the proposition that the accused was not detained at the material time. Fromthose authorities the following general principles can be gleaned: 1) The word detention in ss. 9 and 10 of the Charter must be interpreted generously rather than legalistically, aimed at securing the fullbenefit of the Charter protections: R. v.

Big M Drug Mart Limited, (SCC), [1985] 1 S.C.R. 295; R. v. Grant, 2009 SCC32 , [2009] 2 S.C.R. 353. 2) The mere asking of questions at the start of an investigation from people who might turn out to be involved in criminal acts does notin itself constitute a detention: R. v. K., (1990), (BC CA), 53 C.C.C. (3d) 500 (BCCA); Ingenhagg v. Burdock, (1991), (BC CA), 4 BCAC 186; and R. v. Regnier, [1995] B.C.J. No. 327 (BCCA). 3) Focused suspicion in and of itself does not turn an encounter into a detention: R. v.

Grant. 4) Detention may be effected without the application or threat of application of physical restraint if the person concerned submits oracquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist: R. v. Therens, (SCC), [1985] 1 S.C.R. 613. 5) The notion of physical detention recognizes that police tactics even in the absence of exercising physical restraint may be coerciveenough to effectively remove the individual's choice to walk away from the police.

Psychological detention is established either wherethe individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reasonof the state of conduct that he or she had no choice but to comply: R. v. Grant. 6) Psychological detention must be determined objectively having regard to:

a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual, whether the police wereproviding general assistance, maintaining general order, making general enquiries regarding a particular occurrence, or singling out the

individual for focused investigation.

b) the nature of the police conduct including the language used, the use of physical contact, the place where the interaction occurred,the presence of others, and the duration of the encounter.

c) the particular characteristics or circumstances of the individual, where relevant, including age, physical stature, minority status, andlevel of sophistication: R. v. Grant. 7) Confinement to a hospital bed because of injuries and the need for medical treatment does not of itself constitute detention: R. v.Stanford, (BC CA), [1994] B.C.J. No. 2332 (BCCA). 8) Ambulance attendants are usually not considered persons in authority as they are usually not under the direction of the police.

Theyare usually not engaged in the detention of an accused and any statements made to them will usually not be subject to Charter protection:R. v. M.R.B. (1998), (BC CA), 125 C.C.C. (3d) 335 (BCCA). [21] In the case at bar, Constable Penman was clearly singling out the accused for a focused investigation from the very beginning.This is evidenced by his initial advice to the accused that he was under investigation for Motor Vehicle Act offences and criminalnegligence causing death. Constable Penman did not use any threatening language or gestures. In fact, he advised the accused he did nothave to answer questions.

However, Constable Penman was standing in the narrow confines of the ambulance in close proximity to theaccused who was confined on the stretcher. Later, Auxiliary Constable Goertsen was also in the ambulance standing over the accused. [22] The interchange between the accused and the police did not last long, either in the ambulance or at hospital. However, from thetime Constable Penman assigned Auxiliary Constable Goertsen to his task, the accused was never out of sight of the police and theywere never out of his sight. The accused was in a weakened, injured condition, although he appeared alert and oriented.

He wasemotionally distraught at the death of the passengers. He was being told he was under investigation for criminal offences arising out of amotor vehicle accident where he was the driver, and at least one person at that time had died. He was given a police warning regardingthe giving of evidence. He was told he had a right to call a lawyer.

He was assigned a police officer to stay with him for continuity. [23] In my view, weighing the totality of the evidence on a balance of probabilities, it is more likely than not that the circumstancesconstitute a detention of the accused such that his Charter rights were evoked.

My finding is consistent with the admission of ConstablePenman on cross-examination that as far as he was concerned the accused was under detention, was not free to leave, and that the reasonfor telling the accused he was under investigation and had the right to counsel was because Constable Penman wanted to detain theaccused for further investigation. [24] Counsel for the accused argued that both the accused's rights under s. 10(

a) and (

b) of the Charter were breached. I am notinclined to accept that Constable Penman breached s. 10(a). Although he initially advised the accused he was under investigation forMotor Vehicle Act offences and criminal negligence causing death and never mentioned impaired driving, the gravity of the accused'soffence was clear. The purpose behind s. 10(

a) is to allow an individual to exercise his right to counsel in a meaningful way by knowingthe extent of his jeopardy: R. v. Evans, (SCC), [1991] 1 S.C.R. 869. As long as an accused possesses sufficientappreciation of the extent of his jeopardy to validly waive his right to counsel, s. 10(

a) has not been breached. In the case at bar, Mr.Fedan understood that he was in jeopardy of being charged with a death caused by his driving which is the gravamen of all the offenceswith which he was finally charged. [25] However, I find that the accused's s. 10(

b) rights were breached. Crown properly conceded that if I were to find the accused hadbeen detained, then there was likely insufficient information and implementation of the accused's right to counsel without delay. [26] The final issue is whether the evidence obtained by Constable Penman before the assertion by the accused of his right tocounsel should be excluded pursuant to s. 24(2) of the Charter.

Specifically, the accused seeks to exclude: 1) his statement to Constable Penman that he was driving; 2) his admission to consuming alcohol; and 3) the odour of alcohol on his breath. [27] Section 24(2) of the Charter requires evidence to be excluded if it is established, having regard to all the circumstances, that theadmission of the evidence in the proceedings would bring the administration of justice into disrepute. [28] The Supreme Court of Canada in R. v. Grant has provided us with a revised approach to s. 24(2).

The Court in that caseexplained: The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of,and public confidence in the justice system. . . . exclusion of evidence resulting in an acquittal may provoke immediate criticism, [but] s.24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system,viewed in the long-term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether a reasonableperson, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidencewould bring the administration of justice into disrepute. Section 24(2)’s focus is not only long-term, but prospective. The fact of theCharter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeksto ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Finally, Section 24(2)’s focus is societal.

Section 24(2) is not aimed at punishing the police or providing compensation to the accused,but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of thejustice system.

[ 29 ] The Supreme Court of Canada in R. v. Grant also instructs us that when faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to three things: the seriousness of the Charter infringing state conduct; the impact of the breach on the Charter protected interest of the accused; and society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 30 ] Therefore, following R. v. Grant , I must, firstly, assess the seriousness of the breach. Constable Penman was not acting in bad faith and he was clearly overwhelmed by the situation. He was relatively inexperienced and trying to do his best.

On the other hand, there is no acceptable explanation for failing to pull out the card in his pocket and properly read out the accused's Charter rights as he had been trained to do. This is a very basic minimal mode of conduct that is expected of the police in our country. There is no acceptable explanation for not providing the accused with the means to call a lawyer when a cellphone was available. [ 31 ] Secondly, the impact on the accused's interests must be assessed.

Obviously, if the accused had received legal advice, he would have learned that he was not compelled to provide the police with any incriminating evidence pertaining to his status as driver or that he had been drinking alcohol. The principle against self-incriminating statements is one of the cornerstones of our criminal law. [ 32 ] Finally, I must assess society’s interests in excluding or including the evidence. The Supreme Court of Canada in R. v. Grant tells us that society generally expects that the criminal allegation will be adjudicated on its merits.

This third line of inquiry asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. This inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. [ 33 ] However, the Supreme Court of Canada also tells us that the concern for truth seeking is only one of the considerations under a s. 24(2) application.

The view that reliable evidence is admissible, regardless of how it was obtained, is inconsistent with the Charter 's affirmation of rights.

More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence. [ 34 ] Therefore, the fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must be weighed against factors pointing to exclusion in order to balance the interests of truth with the integrity of the justice system. [ 35 ] Finally, the Supreme Court of Canada tells us that the importance of the evidence to the prosecution's case is another factor that may be considered in this line inquiry.

The exclusion of highly reliable evidence may impact more negatively on the repute of administration of justice where the remedy effectively “guts” the prosecution. [ 36 ] In the case at bar, defence quite properly concedes the seriousness of the allegation. Two people have been killed. I have no real concerns about the reliability of the evidence, although Constable Penman's observation of the odour of alcohol is uncorroborated by other witnesses. However, I am of the view that the impugned evidence is not all important to the Crown's case.

Identification of the accused as driver can be obtained from other witnesses such as Ms. Morris. The fact that the accused had been drinking can be established by other evidence from other witnesses and the second set of blood samples taken for a medical purpose and later seized by the police. [ 37 ] In my view, the administration of justice would be brought into disrepute by allowing self-incriminating statements to be adduced into evidence by way of clear and flagrant breaches of fundamental Charter rights, especially when exclusion would not “gut” the ongoing prosecution.

In other words, this is not a case where exclusion of the evidence should by itself result in any sort of stay of proceedings or acquittal of the accused. [ 38 ] In conclusion, as a result of my ruling on the voir dire , the accused's statements made to Constable Penman, both in the ambulance and at the hospital, and Constable Penman's observation of the accused's breath, will not be admitted at trial. [ 39 ] I have intentionally not dealt with or even mentioned the taking of the blood sample at the direction of Constable Penman at the hospital.

This is because counsel have agreed that so long as Crown does not seek to adduce that evidence at trial, there will be no need for a ruling on it. However, should Crown attempt to do so, we will revisit that. “Madam Justice D.A. Kloegman”