R. v. Bishop, 2013 BCSC 2537

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bishop, 2013 BCSC 2537 Date: 20130204 Docket: 57823-3 Registry: Chilliwack Regina v. Jerome William Bishop and Shawn Charles Brien Restriction on Publication: An Order has been made pursuant to

section 486.5(1) of the Criminal Code that prohibits any information that could identify any Crown witness except Robert Dahlgren involved in this proceeding, from being published, broadcast, or transmitted in any manner. These Reasons for Judgment comply with this publication ban. Before: The Honourable Madam Justice Bruce Oral Ruling on Voir Dire No. 2 Counsel for the Crown: K.C. Jansen Counsel for the Accused Jerome William Bishop: R. Dhanu Counsel for the Accused Shawn Charles Brien: K.S. Westlake, Q.C. Place and Date of Judgment: Chilliwack, B.C.

February 4, 2013 [ 1 ] THE COURT: The Crown seeks a ruling that the statement given to the police on June 15, 2009 by Mr. Bishop was voluntary. Mr. Bishop’s statement was taken by Constable Louie from approximately 1:23 p.m. on that date until approximately 5:20 p.m. [ 2 ] The onus of proof rests with the Crown to prove beyond a reasonable doubt that a statement by an accused is voluntary. A failure to do so results in the statement being inadmissible. The leading authority with respect to voluntariness is R. v.

Oickle , 2000 SCC 38 . [ 3 ] The modern approach to voluntariness is a contextual one where the court considers all of the relevant factors including the making of threats and promises, oppression, the operating mind doctrine, and police trickery. As Iacobucci J. explained in Oickle at para. 47 : [47] The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable.

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive.

A trial judge should therefore consider all the relevant factors when reviewing a confession. [ 4 ] Moreover, in Oickle , the Court emphasized that the Ibrahim rule regarding threats and promises is not a distinct enquiry and must be considered in the context of the other relevant factors such as whether there was an oppressive atmosphere created and whether the accused, as a result of the police questioning, was deprived of an operating mind (see Oickle at para. 63 ). [ 5 ] The consideration of police trickery on the other hand is a more specific enquiry where the objective is to maintain the integrity of the justice system (see Oickle , at para. 65 ). [ 6 ] The defence argument against voluntariness does not involve an atmosphere of oppression during the interview itself.

Mr. Bishop was rested, fed, and relatively comfortable during the interview. He was not pressured by overly aggressive behaviour and questioning by Constable Louie or by Corporal Wheatley, who joined the interview in the last ten minutes. [ 7 ] Mr. Bishop acknowledged that he had been treated appropriately by prison staff and he had no complaints about his treatment leading up to the interview. A clear indication of Mr.

Bishop’s buoyant state of mind during the interview was the rather amusing and lengthy rap song he sang while alone in the interview room after Constable Louie stepped out, which occurred about two-thirds of the way through the interview. [ 8 ] The primary argument of the defence concerns the tactics used by the police to induce Mr. Bishop to make incriminating statements about his involvement in the offences under investigation by the police. [ 9 ] The defence argues that the police arrested Mr. Bishop’s mother, Mrs. Bishop, and Mr.

Grant, his brother, on spurious grounds and used their incarceration as leverage to force him to confess. The defence argues that this type of police trickery would shock the

community and should not be condoned by the Court. Further, the defence argues that Mr. Bishop did not waive his right to counsel and the police failed to give him the Prosper warning prior to questioning him about the offences under investigation. [ 10 ] Mr.

Bishop did have an interview with duty counsel prior to the police interview, however, it is argued that during the interview with Constable Louie it became apparent that he did not recall all of the charges against him and at that time Constable Louie did not offer him the right to counsel before continuing with his questions. [ 11 ] The defence argues that even if the statement is voluntary, it should be inadmissible in light of this breach of s. 10(

a) of the Charter . [ 12 ] Lastly, the defence argues that the Crown failed to call all of the officers who had contact with Mr. Bishop at the time of the statement and in particular, Corporal Wheatley, and thus they have not satisfied the onus of proving it was voluntary beyond a reasonable doubt. [ 13 ] To address the defence arguments, it is necessary to review the circumstances surrounding the arrest of Mr.

Bishop and his family members, as well as the events leading to the interview. [ 14 ] In the early morning hours of June 15, 2009, Constable Stewart and Constable Dewinter responded to a complaint from a resident at an apartment complex in Surrey that three or four males were unloading garbage bags from a vehicle parked in her parking stall and taking them into the building where her apartment was located.

Once inside the building, the resident could smell a strong odour of fresh marihuana in her suite. [ 15 ] The Constables had a brief conversation with the resident and entered the stairs through the fire door held open by the resident. They followed the strong odour of fresh marihuana up the stairs to the third floor and as they walked down the hall towards Apartment 312, the door opened and Mr. Brien exited into the hall. [ 16 ] The evidence is in conflict as to what precisely occurred at and after this point in time.

However, it is not disputed that Constable Stewart entered the suite and arrested all the occupants for possession of the large quantity of marihuana that he saw hanging on a line strung across the ceiling of the living room in the suite. [ 17 ] Mr. Bishop and Mr. Grant were found in the living room with the marihuana in plain view. There were also garbage bags on the floor of the living room and bits of marihuana plant material strewn about. There was a large industrial fan in the living room. Both Mr. Grant and Mr.

Bishop were immediately arrested and directed outside to the hall where Constable Dewinter detained them along with Mr. Brien. Mr. Dahlgren was also found in the suite and he too was arrested and directed out into the hall where Constable Dewinter detained him. [ 18 ] Constable Stewart then began to clear the suite, which was very small and consisted of one bedroom, a modest kitchen, a bathroom, and closet space. The bedroom lights were off and on entry Constable Stewart found Mrs. Bishop inside in a state of undress.

He did not know if she had been sleeping, but he gave her time to dress and then directed her out into the hall. [ 19 ] Thereafter, the accused, including Mr. Grant and Mrs. Bishop, were formally arrested for possession of marihuana and immediately thereafter possession for the purpose of trafficking and provided with their Charter rights and police warning from prepared cards. [ 20 ] Each of the accused was transported to cells in the Surrey Detachment. The accused were kept that night in cells and that evening they were brought before a Justice.

The Justice granted the police additional time to complete the investigation because it now appeared that the accused had been involved in a break and enter of a residence and theft of marihuana in Abbotsford (and I will refer to this as the “grow rip”). The accused were all returned to their cells thereafter and detained overnight and into the afternoon of June 16. [ 21 ] Prior to the hearing before the Justice, the police prepared arrest scripts for each accused based upon the evidence found in Suite 312 during the execution of the search warrant, which occurred on the afternoon of June 15.

These offences included possession of marihuana and possession for the purpose of trafficking, possession of a shotgun, bear spray, and a rifle for the purpose of committing an offence, possession of stolen property belonging to R.D., the Abbotsford resident who was the victim of the grow rip, including a BlackBerry cellular telephone, identification, and cash. Mrs. Bishop and Mr. Grant were read the same charges. [ 22 ] In addition to the charges, Mr. Grant and all of the accused except Mrs.

Bishop were advised that they were being investigated for offences in Abbotsford that included break and enter, forcible confinement, assault with a weapon, disguise with intent, and possession of property obtained by crime. [ 23 ] On the evening of June 15 when the arrest script was read to Mr. Bishop, he indicated a desire to plead guilty to some of the charges. He advised Corporal Vadril that he felt guilty because his mother had been arrested and also that his friends had been arrested for a bad decision that he had made. [ 24 ] At the outset of the interview, Constable Louie raised both Mr.

Grant’s circumstances and those of Mrs. Bishop with Mr. Bishop. He discussed how uncomfortable Mr. Bishop’s mother was in the jail and that she had asked for Tylenol for pain. She was cold and very unhappy with the situation. Mr. Bishop acknowledged that he had a very close relationship with his mother and his brother and denied that they had any involvement in the offences for which they had been arrested. [ 25 ] Shortly after the interview commenced, Constable Louie mistakenly led Mr.

Bishop to believe that his mother was being investigated for the grow rip in Abbotsford in addition to being charged with the offences arising out of the arrest and search of the Surrey apartment. This mistake was cleared up later in the interview, but not before Mr. Bishop made admissions about his involvement in the possession offences arising out of the search of the apartment in Surrey. [ 26 ] While Constable Louie denied that his repeated references to the plight of Mr. Grant and Mrs. Bishop were part of a pre-

planned scheme to induce a confession from Mr. Bishop, it is apparent that his mother’s and his brother’s circumstances were of greatconcern to Mr. Bishop because he had a close relationship with them and had strong family values. He had convinced both his brotherand his mother to come to British Columbia for a better life and now they were in trouble. [27] The use of an inducement to confess is not an improper investigative tool. Indeed, it is an integral and important part of almostevery police investigation.

An inducement that leads to an involuntary statement is one that holds out a hope of advantage or giving theaccused a reason to fear prejudice if he does not confess.

For example, holding out the possibility of a reduced charge or sentence inexchange for a confession is improper and will likely lead to a finding that the statement so induced was involuntary. [28] Addressing threats and promises, the Court in Oickle, said at paras. 49, 53, 54 and 57 – and I am going to quote from parts ofthat: [49] As noted above, in Ibrahim the Privy Council ruled that statements would be inadmissible if they were the result of "fear ofprejudice or hope of advantage". The classic "hope of advantage" is the prospect of leniency from the courts.

It is improper for a personin authority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses.Therefore in Nugent, supra, the court excluded the statement of a suspect who was told that if he confessed, the charge could be reducedfrom murder to manslaughter. … Intuitively implausible as it may seem, both judicial precedent and academic authority confirm that thepressure of intense and prolonged questioning may convince a suspect that no one will believe his or her protestations of innocence, andthat a conviction is inevitable.

In these circumstances, holding out the possibility of a reduced charge or sentence in exchange for aconfession would raise a reasonable doubt as to the voluntariness of any ensuing confession. An explicit offer by the police to procurelenient treatment in return for a confession is clearly a very strong inducement, and will warrant exclusion in all but exceptionalcircumstances. … [53] The Ibrahim rule speaks not only of "hope of advantage", but also of "fear of prejudice". Obviously, any confession that is theproduct of outright violence is involuntary and unreliable, and therefore inadmissible.

More common, and more challenging judicially,are the more subtle, veiled threats that can be used against suspects. … Courts have accordingly excluded confessions made in response to police suggestions that it would be better if they confessed. … [54] However, phrases like "it would be better if you told the truth" should not automatically require exclusion. Instead, as in allcases, the trial judge must examine the entire context of the confession, and ask whether there is a reasonable doubt that the resultingconfession was involuntary. Freedman C.J.M. applied this approach correctly in R. v.

Puffer (1976), (MB CA), 31C.C.C. (2d) 81 (Man. C.A.). In that case a suspect in a robbery and murder asked to meet with two police officers of his acquaintance. Atthis meeting, one officer said: "The best thing you can do is come in with us and tell the truth" (p. 95). Freedman C.J.M. held that whilethe officer's language was "unfortunate", it did not require exclusion (at p. 95): "McFall wanted to talk, he wanted to give the police hisversion of what had occurred, and above all he did not want Puffer and Kizyma to get away, leaving him to face the music alone"(emphasis in original). … [57] In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain aconfession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convincethe suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone orin combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.… [29] The threat or promise does not have to be aimed directly at the accused.

If it is directed at a person in a close relationship withthe accused it may be a strong enough inducement to vitiate a confession. As McIntyre J.A. (as he then was) said in R. v. Jackson,(1977), (BC CA), 34 C.C.C. (2d) 35 at 38 (B.C.C.A.): … [Cases] must be considered in relation to their own facts.

It is my opinion that for a promised benefit to a person other than theaccused to vitiate a confession, the benefit must be of such a nature that when considered in the light of the relationship between theperson and the accused, and all the surrounding circumstances of the confession, it would tend to induce the accused to make an untruestatement, for it is the danger that a person may be induced by promises to make such a statement which lies at the root of thisexclusionary rule. [30] As the Supreme Court of Canada says in Oickle at para. 57, it is perfectly lawful for the police to offer some kind ofinducement to an accused to confess because it is in their best interests to do so.

The inducement does not become improper unless it isstrong enough to raise a reasonable doubt the will of the accused had been overborne. [31] Further, the statement of the accused must be attained by something said or done by the police in the form of a threat or apromise. In other words, regardless of what the officer says to induce a confession, there must be something offered as a quid pro quothat is the genesis of the confession.

The accused may think things will go better for him or someone else if he confesses, but it does notrender a confession involuntary unless it is the police who expressly or implicitly plant this idea in his mind with their words or conduct. [32] In this case, there is no doubt that Mr. Bishop was very concerned about the fact that his mother and his brother were caught upin the arrests in his apartment and that he felt responsible for what had happened to them.

What Constable Louie said to him during theinterview obviously played on his emotions and made him feel even more guilty about their arrest and detention. [33] Constable Louie emphasized how devastated his mother was about her arrest and detention due to her illnesses and her inabilityto attend work. Constable Louie also emphasized Mr. Grant’s prospects for the future due to all his hard work and education and Mr.Bishop’s role as a father figure to him. It is following these references by Constable Louie during the interview that Mr. Bishop took

responsibility for the marihuana and the weapons found in Suite 312. [34] The words spoken by Mr. Bishop to Corporal Vadril at the time he was read the arrest script as well as his responses toConstable Louie about family values and his close relationship to Mr. Grant and Mrs. Bishop lead me to conclude it was theircircumstances that played a significant role in his decision to confess to these crimes. [35] However, leading up to these admissions there was no quid pro quo offered by Constable Louie expressly or implicitly inexchange for a confession. There was no threat or promise.

Constable Louie did not suggest that things would go better for Mr. Grant orMrs. Bishop if he confessed, nor did he say that things would get worse for them if Mr. Bishop did not confess. [36] While later in the interview the Constable’s references to “manning up” and “family values” carried a veiled suggestion thatthings would go better for Mr. Grant and Mrs. Bishop if he confessed or conversely go worse for them if he did not confess, theseinducements produced no further admissions by Mr. Bishop.

He steadfastly denied any involvement in the Abbotsford grow rip anddenied any knowledge of what had transpired during those events. [37] In my view, the only incriminating statements made by Mr. Bishop were induced by his own feelings of guilt for what hadhappened to his family members. The statements were not induced by anything said or done by Constable Louie that was improper.While Constable Louie played on Mr. Bishop’s nature as a man who holds family values in high esteem, as well as Mr.

Bishop’s closerelationship with his mother and brother, the Constable did not promise any kind of benefit would be forthcoming if there was aconfession, nor did he make veiled threats that things would get worse for them if he did not confess. [38] In R. v. Spencer, 2007 SCC 11 , [2007] 1 S.C.R. 500, the Supreme Court of Canada reminds trial courts at para. 15 thatwhile a quid pro quo is an important factor in establishing a threat or promise, the overall context surrounding the statement and thecircumstances of the accused are also important factors.

This contextual approach is highlighted in Oickle at para. 71: [71] Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courtshave excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable policeconduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect.

Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt asto the confession’s voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minorinducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect isdeprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra.

On the otherhand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. [39] On the facts of this case, I find that Mr. Bishop was ready to confess to the three possession charges from the outset and longbefore the commencement of the interview because he felt guilty about the arrest of his mother and his brother. This is evident in thestatements he made to Corporal Vadril at the time that the arrest script was read to him. What Constable Louie said to Mr. Bishop duringthe interview simply cemented his intention to make these admissions.

While his feelings for his mother and brother were strong, andwere obviously the underlying motive for his admission, Constable Louie’s decision to use these emotions as an incentive to confess didnot cause Mr. Bishop’s will to be overborne. [40] In this case, there was no atmosphere of oppression created by the Constable. Mr. Bishop was treated properly throughout theinterview. He was not deprived of sleep, water, or food so as to weaken his will to resist the entreaties of the officers to confess. The factthat Mr.

Bishop stuck to the admissions he made about the Surrey offences and would make no admissions about the Abbotsfordoffences regardless of what the officer said to him about his family, is strong evidence that his will was not overborne and he remainedin control to the conclusion of the interview. [41] The primary argument of the defence is that the statements of Mr. Bishop are inadmissible because of the use of police trickerythat would shock the community. The defence maintains the arrest and continued detention of Mr. Bishop and Mr.

Grant despite anyevidence of their involvement in the offences under investigation was used as a means of forcing Mr. Bishop to confess. [42] The use of trickery to obtain a confession is related to voluntariness but it is a distinct enquiry because its objective is tomaintain the integrity of the justice system. While reliability of the confession is a concern, the courts are also concerned with policeconduct that may induce a confession. The conduct of the police is examined to ensure that their investigation tools do not includebehaviour that would bring the justice system into disrepute.

However, it is not just any form of deception, deceit or trickery that rendersa confession inadmissible. [43] As the Supreme Court of Canada observed in Oickle, the police cannot be overly hampered in their investigation of crime; theirconduct must shock the community (see para. 66). [44] In this case, there is no evidence that the police planned to arrest Mrs. Bishop and Mr. Grant as a ruse and then detain them incells in order to pressure Mr. Bishop into confessing. Nor is there any evidence that they were in fact arrested on spurious grounds. [45] Mr.

Grant was found in the living room of the small apartment where a large quantity of fresh marihuana was hanging from theceiling. He resided in that apartment with his brother and thus not only had knowledge of the marihuana but also had some measure ofcontrol over it. [46] Mrs. Bishop was also found in the apartment where she resided with both her sons. At the time of the arrest, the police had noknowledge of when she retired to her bedroom and it is readily apparent that anyone who lived in that apartment would know about themarihuana hanging conspicuously from the ceiling in the living room.

The fact that she resided in the small suite with her sons also gaveher a measure of control over the marihuana hanging in the living room. Thus in my view there was evidence to justify the arrest of bothMr. Grant and Mrs. Bishop along with the other occupants in the suite. [47] The decision to detain Mr. Grant and Mrs. Bishop themselves is also proper in the circumstances. Constable Stewart was in the

process of obtaining a search warrant for the residence which was not executed until the afternoon of June 16. The police investigation was ongoing and their detention was necessary to preserve evidence and permit the police to complete their investigation. [ 48 ] The search of the suite produced additional evidence of offences. There were two firearms located and a can of bear spray. In addition, there was evidence found that linked the people residing in the suite to the grow rip in Abbotsford, in particular R.D.’s cellular telephone and his identification were located during the search.

As a result of this additional evidence, the police formally charged Mrs. Bishop with the list of offences outlined earlier, but she was not being investigated for the grow rip because there was no evidence of a female involved in that offence. Mr. Grant, however, was implicated in those offences by the witnesses as a young black male and was thus detained under investigation for them. There is nothing in these events from which I may infer bad faith or improper motive on the part of the police. [ 49 ] On the evening of June 15, Mrs.

Bishop was brought before a Justice, as all the accused were, and the police were given permission to detain her in order to complete their investigation. She was read an arrest script and denied any involvement. She was interviewed and again denied any involvement. Despite her denials, the police continued to detain Mrs. Bishop pending the completion of their investigation. I see nothing improper in the police conduct. They are entitled to disbelieve Mrs. Bishop despite her protests of innocence.

She resided in the small suite where weapons, stolen property and drugs were found. [ 50 ] The police continued their investigation on June 16 by interviewing all of the remaining accused in custody. They interviewed Mr. Bishop, Mr. Grant and Mr. Dahlgren, carried on simultaneously by different officers. All of these accused denied that Mrs. Bishop was involved in any of the offences under investigation. At about two-thirds of the way through Mr. Bishop’s interview, Constable Louie obtained information about statements made by Mr. Grant. He referred to these statements during Mr.

Bishop’s interview, but no confession or incriminating statements were induced as a result of this information. [ 51 ] Constable Louie learned after Mr. Bishop’s interview ended that Mr. Dahlgren asserted Mrs. Bishop was not involved in the offences under investigation. [ 52 ] Constable Louie testified that when he interviewed Mr. Bishop, he believed that Mrs. Bishop was telling the truth about not being involved with the drugs and the weapons found in her apartment. However, that belief did not lead him to recommend that the charges be dropped against her. I see nothing inconsistent in his statement.

It is apparent that in law someone can be in possession of a prohibited drug and a weapon and have a measure of control over it when these items are found within one’s home even though they may not be involved in their acquisition. Ultimately, the police team investigating these offences recommended that Mr. Grant be charged with the offences arising out of the Surrey and Abbotsford offences, and that Mrs. Bishop be charged with the Surrey offences. It was not a decision solely based on Constable Louie’s views. [ 53 ] While it may be said that the police threw too broad a net by recommending charges against Mrs.

Bishop with regard to all of the Surrey offences once they had completed their investigation, their conduct does not imbue the earlier actions of the police with bad faith or improper motive. It is not evidence of any police trickery designed to force a confession out of Mr. Bishop. This decision was made after Mr. Bishop had made the incriminating statements and had concluded his interview with the police. It would have been more consistent with the defence theory of police trickery if they had released Mrs. Bishop immediately after Mr.

Bishop’s interview without any charges whatsoever. [ 54 ] It is true that Constable Louie mistakenly told Mr. Bishop at the start of the interview that Mrs. Bishop was being investigated for the Abbotsford offences. I accept his evidence that this was an error on his part and not done intentionally. Later in the interview he corrected his error on two occasions. This unintentional deception does not “shock the community” nor was it a significant factor leading to incriminating statements by Mr. Bishop. Indeed, Mr.

Bishop made no admissions concerning the Abbotsford offences by this mistaken belief that his mother was being investigated for these offences. [ 55 ] As discussed earlier, Mr. Bishop’s admissions regarding the Surrey offences were strongly motivated by his mother’s and his brother’s arrest and detention in cells even before the interview with Constable Louie. [ 56 ] The defence also argues that the failure to call Corporal Wheatley as a witness in the voir dire precludes them from proving the voluntariness of the confession beyond a reasonable doubt. [ 57 ] In R. v.

Magnowski , 2011 BCSC 967 , Leask J. concluded at para. 25, after reviewing the leading authorities, that to satisfy the onus of proof regarding voluntariness, the Crown must produce all of the officers at least for cross-examination who were present when the statement was made. The underlying rationale for this conclusion is that the court must know the entire context of the statement to properly determine if it was voluntary. [ 58 ] In this case, unlike the circumstances in Magnowski , the statement of Mr. Bishop was audio and video recorded.

The Court could observe the mannerisms and gestures of both officers, Constable Louie and Corporal Wheatley, to determine if there was any improper behaviour. In addition, Corporal Wheatley was only peripherally involved in the statement as he came into the interview in the last 10 to 15 minutes. Significantly, Mr. Bishop made no admissions against his interests at all while Corporal Wheatley was present in the interview. Nothing he said or did caused Mr. Bishop to make an admission against his interests. There is no evidence that Corporal Wheatley had any other contact with Mr. Bishop.

I also note that at the commencement of the interview Mr. Bishop acknowledged no officer had made any threats or promises to him while he was in cells. [ 59 ] Accordingly, I find it is not necessary for the Crown to call Corporal Wheatley to prove voluntariness of the statements beyond a reasonable doubt. [ 60 ] In

summary, I have dismissed all of the defence arguments against the Crown’s case for voluntariness. The statements against interests were made freely and willingly by Mr. Bishop without any evidence of improper conduct by the police or as a result of any improper promise or threat. The Crown has thus proven voluntariness beyond a reasonable doubt. [ 61 ] The admissibility of the statements is also challenged under the Charter . The defence argues that Mr. Bishop did not

unequivocally waive his right to counsel and was denied the benefit of the Prosper warning to ensure he knew what he was giving up. In addition, during the interview it became apparent that Mr. Bishop had forgotten some of the charges he was facing. Thus, it is argued that Constable Louie should have offered him another opportunity to consult with counsel. [ 62 ] Mr. Bishop had his s. 10(

a) and (

b) rights read to him on three occasions prior to the interview. First, when he was initially arrested for possession of marihuana at 1:12 a.m. on June 15 he was read his rights from a prepared card by Constable Stewart. When asked if he wished to speak to counsel, Mr. Bishop said no. [ 63 ] At 1:20 a.m. on the 15th of June, Mr. Bishop was arrested for possession of marihuana for the purpose of trafficking and read his s. 10(

a) and (

b) rights from a prepared card again by Constable Stewart. In respect to the question whether he wanted to call a lawyer, Mr. Bishop said “Not at this moment”. Later that morning when Mr. Bishop was booked into cells by Constable Dewinter, he was asked again if he wanted to speak to counsel and again Mr. Bishop said “Not right now”. [ 64 ] At 6:15 p.m. on June 15, Mr. Bishop was read an arrest script by Corporal Vadril.

She advised him that he was charged with possession of marihuana, possession for the purposes of trafficking marihuana, possession of the bear spray, rifle, and shotgun for the purpose of committing a criminal offence, and possession of stolen property, identification, and cellular telephone belonging to R.D. He was also told that he was being investigated for the offences arising out of the grow rip in Abbotsford. [ 65 ] During this reading of his rights, Corporal Vadril asked Mr. Bishop again if he wished to speak to legal counsel.

While his response as recorded is not audible, the Corporal stopped what she was doing at that moment and wrote notes on the arrest script of what he said. In that regard he said, “Uh no, I don’t think I need to call a lawyer”. [ 66 ] When asked for a second time if he wanted to speak to a lawyer, he again said no but he had questions for the officer. He asked her when he was going to speak to a judge about bail. She told him that if he spoke to a lawyer that they would tell him about these matters. She also said that there would be a hearing that night before a Justice of the Peace to address bail.

At this point, Mr. Bishop indicated that he was ready to talk to someone about pleading guilty to some of the charges and Corporal Vadril indicated that such a meeting could be arranged. [ 67 ] After this exchange, Corporal Vadril asked Mr. Bishop one more time if he was sure he did not want to contact a lawyer. His answer was unrelated to legal advice. He returned to the topic of what he was getting ready to tell the police. I infer this to be a reference to pleading guilty to some of the charges. Corporal Vadril was left with the impression that Mr.

Bishop had declined legal counsel and she reported this conclusion at the end of her interaction with him. [ 68 ] I find nothing equivocal about Mr. Bishop’s statement that he did not want to speak to a lawyer. He was by this time very familiar with his rights. His Charter rights and police warning had been read to him three times. He had been asked four times if he wished to contact legal counsel and had declined the offer each time. The first three occasions amounted to a denial at that moment and thus could be considered unequivocal. The last occasion was a determined “No”. He was asked three times.

The officer pressed him and he still declined. I find there was no need to give the Prosper warning when the decision was so unequivocal. [ 69 ] Mr. Bishop was not interviewed into the next day; however, he acknowledged that in the morning prior to the commencement of the interview, he had met face-to-face with duty counsel. He acknowledged to Constable Louie that he received advice from duty counsel and that he had understood that advice. There was no indication that Mr. Bishop was dissatisfied in any way with the advice he received.

Thus any concern regarding ambiguity in his waiver of the right to counsel became irrelevant as he actually exercised his right to counsel after he had been informed of the extent of his jeopardy in terms of the offences he was either arrested for or under investigation for. [ 70 ] The issue of right to counsel arises because when Constable Louie reiterated the charges read to Mr. Bishop in the arrest script it was apparent that he could not recall all of them.

He knew that he had been arrested for possession of marihuana and possession for the purposes of trafficking, possession of a concealed firearm, a rifle, and possession of stolen property which included a cellular telephone and identification. He did not recall the charge for possession of bear spray. It was the Abbotsford offences involving the grow rip that he did not recall precisely and he mentioned that he felt that they had been dropped due to a lack of evidence. He did recall that break and enter was one of the offences under investigation but not the other offences. [ 71 ] Constable Louie did not ask Mr.

Bishop if he wished to consult with legal counsel at this point in the interview. In my view, it was not a violation of Mr. Bishop’s s. 10(

a) and (

b) rights to fail to make this offer. Constable Louie went to great lengths to explain all the offences under investigation before he questioned Mr. Bishop about the offences. Mr. Bishop clearly knew the extent of his jeopardy. There was no indication in Mr. Bishop’s responses to the Constable’s enquiries about his meeting with duty counsel that indicated their communication was hampered by his failure to recall all of the charges precisely.

Indeed, had he not recalled the charges, duty counsel would have had access to that information. [ 72 ] Moreover, during the reading of the arrest script and during the interview, Mr. Bishop demonstrated that he was very familiar with the workings of the justice system. He knew about appearing before a judge for a bail hearing. He knew that the legality of the police entry into his suite was an issue and that his guilt on the possession charges would depend on the answer to that question. He knew about reasonable doubt and he knew about the right to silence.

Lastly, he knew that he had a right to speak to legal counsel because he had already been read his Charter rights three times in less than 48 hours. In these circumstances I am satisfied that if Mr. Bishop had wanted more time with legal counsel, he would have asked for it, but he did not do so. [ 73 ] If I am wrong and Constable Louie’s actions constituted a breach of s. 10(

a) and (

b) of the Charter , I find the evidence should not be excluded under s. 24(2). First, Mr. Bishop was not confused about the primary Surrey charges during the interview and presumably when he spoke to duty counsel. The admissions he made against interests solely related to these charges. He made no admissions regarding any of the offences that he was confused about at the commencement of the interview. Thus, the breach had little or no impact on his rights and the evidence against him cannot be said to have been derived from a Charter violation. [ 74 ] Second, there is no bad faith on the part of Constable Louie. There was no plan to deny Mr. Bishop the right to counsel or to

hide from him the real extent of his jeopardy. [ 75 ] Lastly, these are serious offences and the administration of the justice system is far better served by the admission of the evidence rather than exclusion. It is a minor breach of the Charter without a causal connection to the impugned evidence and the officer acted in good faith. Exclusion of the evidence in these circumstances would have an adverse effect on the repute of the justice system. [ 76 ] I thus dismiss the defence application to exclude the evidence under s. 24(2) of the Charter . “Bruce J.”