R. v. May, 2017 BCSC 1056

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. May, 2017 BCSC 1056 Date: 20170131 Docket: 33113-4 Registry: Williams Lake Regina v. Philip Thomas May Before: The Honourable Madam Justice M. Church Oral Ruling on Voir Dire Re: Admissibility of Statements Counsel for the Crown: P. Konge Counsel for the Accused: A. Kaiser Place and Date of Hearing: Williams Lake, B.C. January 25, 26, 27 and 30, 2017 Place and Date of Judgment: Williams Lake, B.C.

January 31, 2017 [ 1 ] THE COURT: This is my ruling on the voir dire to determine whether several statements of the accused, Philip Thomas May were voluntary and therefore admissible at trial. Mr. May is charged with offences arising from events that occurred on May 31, 2014, near 100 Mile House, British Columbia. Mr.

May is charged with one count of attempted murder of Dean Jones, one count of discharging a restricted or prohibited firearm with intent to wound, maim, or disfigure Dean Jones, one count of using a firearm while committing or attempting to commit an indictable offence, one count of possession of a loaded prohibited or restricted weapon without a licence, one count of unlawfully occupying a vehicle knowing that there was a firearm in that vehicle, and one count of failing to stop his vehicle without reasonable excuse in order to evade a peace officer. [ 2 ] Mr.

May was arrested on May 31, 2014, following a police chase in what was described as a tactical vehicle takedown by members of the North District Emergency Response Team and members of the 100 Mile House and Williams Lake RCMP. After his detention, Mr. May made a number of utterances and statements which were either audio-recorded and/or video-recorded. It is also alleged that Mr. May made a number of utterances to Constable Ziemer on the morning of June 1, 2014, while en route to and while at the 100 Mile House and District Hospital.

The Crown is seeking to tender seven audio and/or video-recorded statements and the utterances to Constable Ziemer at the trial of this matter that is scheduled to commence on February 20, 2017, before a judge and jury.

A voir dire with respect to voluntariness of those statements was conducted over the course of four days from January 25 to January 30, 2017, and I advised counsel that I would provide my decision today in order to give them sufficient time to address any issues that might arise with respect to preparation for trial in light of my ruling. [ 3 ] As this is an oral judgment, I reserve the right to edit as may be necessary should a transcript of the decision be ordered.

The result and the reasoning will not change. [ 4 ] In terms of the background, the Crown alleges that in the early morning hours of May 31, 2014, Philip May attended at a residence at 7832 Carrier Road, south of 100 Mile House, B.C., that he had shared or continued to share with his girlfriend, Natalie Niksic. It is alleged that Mr. May entered the residence and found Ms. Niksic and Mr. Dean Jones in the bedroom of the residence. The Crown alleges that Mr.

May shot Dean Jones in the face with a restricted or prohibited weapon before leaving the residence and going to another nearby residence located at 5227 Evergreen Drive. According to testimony at the voir dire , Mr. May was subsequently located by police at the Evergreen Drive residence and efforts were made to observe and contain him. [ 5 ] At approximately 5:30 p.m. on May 31, 2014, Mr. May is alleged to have entered a vehicle at the residence and police containment efforts were unsuccessful in preventing him from leaving the residence. It is alleged that Mr.

May drove through two police roadblocks and failed to stop his vehicle during the police pursuit. The vehicle that Mr. May was operating was struck several times by police vehicles before it was eventually pushed off the road and brought to a stop. All of the police chase and the tactical vehicle takedown were recorded on an in-car camera of a police vehicle operated by Constable Henderson. [ 6 ] When Mr. May's vehicle was stopped, Corporal Rutherford, an RCMP dog handler, got out of his vehicle and pointed his service weapon at Mr. May.

Two members of the North District Emergency Response Team, Constable Atkinson and Constable Cropley, approached the vehicle in which Mr. May was seated. Constable Atkinson was armed with an M16 carbine that he pointed at Mr. May and Constable Cropley was armed with a Remington 870 shotgun that he also pointed at Mr. May. When Constable Atkinson was satisfied that Mr. May did not have a weapon in his hands, he pointed his own firearm away and grabbed Mr. May's left arm pulling

it out of the driver's side window and bending it around the B-pillar of the car. Constable Cropley put down his shotgun and grabbed Mr. May's right arm. Constables Atkinson and Cropley then attempted to pull Mr. May through the driver's side window. When the top portion of Mr. May's body was out of the vehicle, the officers encountered resistance and could not pull Mr. May any further. Constable Atkinson kicked Mr. May in the torso and Constable Cropley readjusted his grip and the two ERT members were then able to completely remove Mr. May from the vehicle and take him to the ground.

After Constable Atkinson kicked Mr. May in the torso, he testified that he observed a firearm fall out of his waistband and onto the ground. [ 7 ] After Mr. May was removed from the vehicle, he was placed face down on the ground and handcuffed. He was advised by Constable Mante that he was under arrest for attempted murder, given the police warning, and advised of his right to counsel. He was then placed in the back of a marked police vehicle for transport to the RCMP detachment in 100 Mile House. Constable Mante's interactions with Mr.

May from the time of his arrest were audio-recorded and for the period of time that Mr. May was in the back of the police vehicle were also video-recorded. After reaching the detachment, Mr. May was lodged into cells and then Constable Mante arranged for Mr. May to be swabbed for gunshot residue and provide breath samples in accordance with a breath demand. Constable Mante's audio-recorder remained on throughout these interactions with Mr. May. On June 1, 2014, Constable Mante advised Mr. May of additional charges that were being laid in relation to the incident and re-chartered and warned Mr. May.

Once again, this interaction was audio-recorded. Finally, custody of Mr. May was transferred to the B.C. Sheriff Service on June 2, 2014, and this interaction was also recorded by Constable Mante. [ 8 ] The Crown seeks to tender at trial the statements by Mr. May to Constable Mante in these six interactions that were audio and, in some cases, video-recorded. Mr. May was also interviewed by Constable Smith and provided a warned statement on June 1, 2014, that was both audio and video-recorded.

Crown seeks to tender the audio and video-recording of that statement at trial. [ 9 ] Dealing first with Exhibits 4, 5, 6, and 7 of the voir dire , the audio-recording at arrest, audio and video-recording while in the police vehicle, the audio-recording with respect to the gunshot residue swabbing, and the audio-recording regarding observations and breath testing, Constable Mante provided most of the evidence on the voir dire with respect to these audio and video-recorded statements as they were all recorded by him and in his presence.

Constable Mante was involved in the police chase that ultimately led to the arrest of Mr. May. He was on duty, wearing a police uniform and driving a marked police vehicle when he first encountered Mr. May. Following Mr. May's extraction from the vehicle, Constable Mante was the officer that approached Mr. May and advised him that he was under arrest for attempted murder. He then activated his audio-recorder to capture what was said and that recording was Exhibit 4 on the voir dire . [ 10 ] At the start of this audio-recording, Constable Mante is heard advising Mr.

May that he has turned on his recorder and that he is under arrest for attempted murder. He describes Mr. May as being handcuffed and then tells Mr. May that he has the right to retain and instruct counsel in private and that there is a 24-hour telephone service available for Legal Aid duty counsel. Constable Mante is also heard advising Mr. May that he is not obliged to say anything, but that anything he did say could be given in evidence. During the course of the recording in Exhibit 4, Mr.

May makes a number of utterances in which he alternately says that he does not understand what the officer is telling him and then responding apparently appropriately to the questions posed. For example: CONSTABLE MANTE: Do you understand? MR. MAY: Yeah. CONSTABLE MANTE: Do you want to call a lawyer? MR. MAY: Oh fuck no. CONSTABLE MANTE: Pardon? MR. MAY: I don't want to call nobody. [ 11 ] When Constable Mante asked Mr. May if he understands that he does not have to talk to him, Mr. May responds, "Yeah." In response to a question by Constable Mante, "Do you understand I am a police officer?" Mr.

May responds, "No, I don't understand any fuckin' thing right now because I'm confused." When Constable Mante tries to explain further, Mr. May interrupts him and talks over him repeating that he is confused and that he does not understand anything. [ 12 ] Exhibit 5 on the voir dire begins when Mr. May is lodged in the back of the police vehicle after his arrest. It includes both the audio-recording from Constable Mante's personal audio-recorder and the video and audio-recording from the police vehicle. At the beginning of the car video and audio-recording, Mr.

May is heard yelling the words, "Fuck you," repeatedly and yelling, apparently, at officers outside the vehicle including words such as, "You guys don't know how to fuckin' drive, do you," and, "Wait till my lawyer gets a hold of this one, Mr. Tough Fucks," and, "You cops are going to look like fuckin' idiots again. Fuck you." While those statements are captured on the in-car recording, they were not captured on Constable Mante's personal audio-recorder and so they do not appear in the transcript. [ 13 ] When Constable Mante enters the vehicle, he once again advises Mr.

May that his recorder is on and he will keep it on for the duration. He advises Mr. May that based on the driving and the smell of liquor on his breath, he suspects Mr. May has committed an offence under s. 253 of the Criminal Code and reads the breath demand to Mr. May. While he is doing this Mr. May is heard interrupting and swearing at Constable Mante and complaining that his handcuffs are on too tight. Constable Mante once again advises Mr. May of his right to counsel and that he is not obliged to say anything. As he begins to tell Mr. May that anything he does say can be used in evidence against him, Mr.

May repeats it back to him. When Constable Mante tells him that it is his duty to inform him, Mr. May responds, "Yes, I know." [ 14 ] As Mr. May is being transported back to the RCMP detachment in 100 Mile House, he makes a number of unprompted utterances regarding the alleged offences. He makes reference to his arrest, laughing and saying, "Took you guys long enough to take me down." He asks repeatedly whether the officers are listening and whether what he says is being recorded. He appears at times to be

agitated and emotional and demands that officers respond to him and listen to him. Constable Mante is heard trying to explain to Mr. May why he will not speak to him, but Mr. May continues to make utterances. These utterances are not in response to any questioning by police officers. Later, in Exhibit 5, Constable Mante tells Mr. May, "Philip, I want to get your side of the story, but I want you to have a chance to contact counsel first." Exhibit 5 ends at 18:08 when Mr. May is lodged into cells. [ 15 ] Exhibit 6 on the voir dire begins at 18:20 hours when Constable Mante begins recording again after Mr.

May has been assessed by paramedics. It encompasses a period of four minutes during which Mr. May is swabbed for gunshot residue. During that process, Mr. May is heard making a number of utterances regarding the alleged offences. His initial utterances appear to be spontaneous, although on two occasions, Constable Mante is heard asking clarifying questions to which Mr. May provides a response. The first such exchange is: MR. MAY: What the fuck, why, fuck man. I gave her half a fuckin' hour to leave. I came back. CONSTABLE MANTE: What were you trying to do? MR. MAY: What? What?

I wanted to shoot him the first time I was there, right? [ 16 ] The second such exchange is: MR. MAY: The only fuckin' problem is it wasn't big enough. CONSTABLE MANTE: What wasn't? MR. MAY: The gun. CONSTABLE MANTE: The gun? Big enough for what? MR. MAY: Kill him. Go ahead and record all of this. [ 17 ] Exhibit 7 on the voir dire begins at 19:40 hours when Constable Mante goes into Mr. May's cell at the detachment and begins the observation period for the taking of breath samples. Constable Mante is heard explaining the breath demand again and Mr. May initially refuses to provide a sample.

Constable Mante then takes Mr. May to the breathalyzer room where he meets Constable Hutt, who was the breath technician. During the observation period and while Constable Hutt is preparing to take breath samples, Mr. May is heard making a number of unprompted utterances regarding the alleged offences. For example, when Constable Hutt checks his mouth, there is the following exchange: CONSTABLE HUTT: Open your mouth up for me. Nothing. MR. MAY: This is bullshit, you know. Every one of you guys would, wouldn't have done anything different. The only difference is he'd be, they'd probably be dead right now.

You'd have had a bigger gun. He fuckin' deserved, deserved everything he got. Fuckin' goof. A goof and here I am locked up. Joke. And you guys locking me up. I'm surprised. You should be giving me a fuckin', uh uh trophy. Now I'll have to spend the rest of my life behind bars because of some fuck. Give me a break. Oh fuck. Well, this is, well, this is you, got caught. Guess you guys ___ down a whole fuckin' team to fuckin' take me down, so. You sure took a long time to take me down. Fuck sakes. I didn't even, I didn't really even try hard to fuckin' to stay away from you guys, you know that.

I didn't even put up a fight. [ 18 ] As Constable Mante observed Mr. May, Mr. May made a number of similar statements regarding the alleged offences. For example, later in Exhibit 5, Mr. May is heard to say: MR. MAY: The cop tried to knock me off the road wasn't very good. That was lame for fuck sakes. I don't regret anything. CONSTABLE MANTE: No? MR. MAY: Nothing at all, except not using a bigger gun. That's the only thing I regret. So you can use that for court or evidence if you need to. [ 19 ] During the interaction between Constable Mante and Mr. May, Mr.

May is heard asking for something to eat and Constable Mante tells him that he will give him something to eat after the breath testing is concluded. After the breath testing is concluded, Mr. May was returned to his cell. Constable Mante is heard agreeing to provide with some food. The recording ends at 20:29 hours. [ 20 ] Exhibits 8 and 9 on the voir dire are the audio-recordings with respect to new charges being laid against Mr. May and the audio-recording with respect to the sheriff's transport.

Exhibit 8 is the recording that begins on June 1, 2015, at 15:47 hours when Constable Mante once again interacts with Mr. May to advise him of the new charges he is facing. Constable Mante is heard once again advising Mr. May of his right to counsel. Once again, Mr. May declines to speak to counsel. Exhibit 9 is the audio-recording made by Constable Mante during his interaction with Mr. May during transfer of custody on June 2, 2014, at 20:20 hours. Constable Mante does not ask any questions of Mr. May. Mr. May makes a number of spontaneous utterances about the alleged offences.

The recording concludes at 12:30 hours. [ 21 ] With respect to the statement to Constable Ziemer, on the morning of June 1, 2014, Constable Ziemer was tasked with transporting Mr. May to the 100 Mile House and District Hospital for assessment by a doctor. During the course of the transportation and while at the hospital, Mr. May is alleged to have made utterances to Constable Ziemer to which Constable Ziemer testified on the voir dire . Constable Ziemer testified that en route to the hospital, there was the following exchange with Mr. May: MR. MAY: Did he die or did they save him?

CONSTABLE ZIEMER: I don't know, dude. MR. MAY: He should be dead. [22] This interaction was not audio-recorded by Constable Ziemer, but he made notes regarding the interaction in his notebook. Constable Ziemer testified that while at the hospital, Mr. May began complaining about having to wear leg shackles and said the words,"You shouldn't be doing this to me. I should be a hero," and then talked about how if a person finds someone with his woman, he shouldkill that person. Constable Ziemer acknowledged in his testimony that he could not recall exactly the latter words used by Mr.

May, butthey were words to that effect. [23] The final statement the Crown seeks to introduce was Exhibit 10 on the voir dire, the warned statement to Constable Smith. OnJune 1, 2014, at 17:32 hours, Constable Allen Smith conducted a police interview of Mr. May in relation to the investigation. Thestatement was both audio and video-recorded. It was conducted, in an interview room, at the 100 Mile House RCMP detachment. Atthe start of the interview, Constable Smith advises Mr. May that he is part of the investigation and he will let him know what is going onon the investigation to date. Mr.

May then responds, "All right, son of a bitch still alive?" Constable Smith advises Mr. May thateverything was being audio and video-recorded, to which Mr. May responded, "I don't care." Constable Smith explains who he is andreminds Mr. May that he does not have to talk to him, but anything they talk about can be used as evidence. Mr. May indicates that heunderstands that warning. Mr. May also confirms that no one has threatened him or promised him anything since his arrest. Mr.

Maymakes a number of statements during the course of the interview, but eventually asserts his right to silence until he has a lawyer present. The interview ends at 18:04 hours. [24] In order for the Crown to introduce into evidence at trial a confession or any other kind of statement made by an accused to aperson in authority, the Crown must prove beyond a reasonable doubt that the statement or statements were voluntarily made by theaccused.

A confession will not be admissible if it is made in circumstances that raise a reasonable doubt as to its voluntariness; R. v.Oickle, 2000 SCC 38, at para. 68. [25] In Oickle, the accused was suspected of being involved in a series of eight fires involving four buildings and two motor vehiclesin and around the community of Waterville, Nova Scotia. The accused agreed to submit to a polygraph test. At about 3:00 p.m., heattended a motel for that purpose. He was advised of his rights to silence, to a lawyer including the availability of Legal Aid, and hisability to leave at any time.

He was advised that the results of the polygraph were inadmissible as evidence at court, but he was warnedthat anything he said would be admissible. He took the test and was told that he had failed. He was interviewed before and after thetest. After the test, he was reminded of his rights. He continued to be interviewed and he confessed to setting one of the fires and wasarrested. He was again apprised of his right to legal counsel and warned that anything he said could be used against him in evidence. The police continued to interrogate the accused for several hours.

At about 11:00 p.m., he confessed to setting seven of the eight fires. He was again informed of his rights and given a warning. He then made a written statement. The taking of the statement concluded atabout 1:00 a.m., after which, he was placed in a detention cell to sleep at 2:45 a.m. Early the following morning, after again beingapprised of his rights and being warned, the accused agreed to a video-recorded re-enactment of the setting of the fires. The police drovehim around the community to various fire scenes where he described how each fire was set. He was then charged with seven counts ofarson.

The trial judge ruled that the statements were admissible and convicted the accused. The Nova Scotia Court of Appeal reversedthe decision of the trial judge. The Supreme Court of Canada restored the trial judge's decision. [26] It is clear from the decision of the Supreme Court of Canada in Oickle that voluntariness must be looked at broadly and that itgoes beyond the traditional rule against admission into evidence of confessions that may have been obtained through the use of threats orpromises.

The rule operates to render inadmissible statements that may have been obtained in an atmosphere of oppression or where theaccused may not have had an operating mind when making the statement or where police trickery was exercised. A court must considerall of these aspects in determining whether the Crown has met its burden of proving beyond a reasonable doubt that the statements werevoluntarily made. The objectives of the voluntariness rule are to protect the rights of the accused without unduly limiting society's needto investigate and solve crimes.

The Supreme Court in Oickle admonished that courts must never lose sight of these objectives and statedat para. 33 that: Martin J.A. accurately delineated this tension in R. v. Precourt (1976), (ON CA), 18 O.R. (2d) 714 (C.A.), at p. 721: Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mindthat the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of havingcommitted the crime being investigated.

Properly conducted police questioning is a legitimate and effective aid to criminalinvestigation. … On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive andcalculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible. … [27] In discussing oppression, Mr.

Justice Iacobucci noted at paras. 58 and 60: Alternately, oppressive circumstances could overbear the suspect’s will to the point that he or she comes to doubt his or her ownmemory, believes the relentless accusations made by the police, and gives an induced confession. … … Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect offood, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for aprolonged period of time. [28] Mr.

Justice Iacobucci for the majority in Oickle referred to the need to be sensitive to the particularities of the individual suspectincluding where suspects are: … especially vulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities,and, in rare instances, suspects whose personalities make them prone to accept and believe police suggestions made during the course ofthe interrogation.

[29] With respect to the requirement of an operating mind, the threshold for operating mind is quite low. At para. of 63 of Oickle,Mr. Justice Iacobucci agreed with the previous statement of Mr. Justice Sopinka in R. v.

Wittle, (SCC), [1994] 2 S.C.R.914 that: … the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and thathe is saying it to police officers who can use it to his detriment” … In other words, the lack of ability to understand the content of the statement and the fact that it may be used against a person indicatesthe absence of an operating mind.

A compulsion to make a statement and a lack of concern about the consequences does not and merelygoes to weight. [30] The court in Oickle repeatedly emphasized the fact-specific and contextual nature of the inquiry at para. 47: The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstancesthat vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trialjudge should therefore consider all the relevant factors when reviewing a confession. [31] In this case, Mr.

May had been arrested following a police chase, a motor vehicle collision, and a forceful armed extractionfrom his vehicle. At the time of his arrest, he was observed by Constable Mante to be emotional and to have had the odour of liquor onhis breath. Mr. May contends that in this case, these factors raise a reasonable doubt about the voluntariness of statements made by himimmediately after his arrest. He submits that it was an oppressive situation because Mr. May was rammed off the road in a violentmanner.

He also submits that when looking at the audio and video-recorded words and actions of the accused after his arrest, it is notclear whether he knows what he is doing and his counsel suggested that it defied the suggestion of an operating mind. [32] In Exhibits 4 and 5, it appears that Mr. May was initially combative and uncooperative with police, swearing at officers andrefusing to listen or acknowledge his understanding of the Charter rights and warnings provided by Constable Mante. While counsel forMr.

May described it as ranting, I have concluded from the evidence on the voir dire, that a sufficient number of his answers which areresponsive to Constable Mante's questions regarding his understanding that satisfy me that from the outset, Mr. May understood thereason for his arrest, his right to counsel, and his right to remain silent. He also was clearly aware that his statements were beingrecorded. [33] In Exhibit 4, Mr. May referred to the forceful treatment he received on arrest and that the officers were being “rough” with himand he did not know why. Then there is the following exchange: MR.

MAY: I wasn't rough with you guys. CONSTABLE MANTE: I know. You're not obliged to say anything, but anything you say may be given in evidence. MR. MAY: Yeah, whatever, whatever. CONSTABLE MANTE: Do you understand you don't have to talk to me, sir? MR. MAY: Yeah. Mr. May then goes on to assert that he does not understand anything and is confused. [34] In Exhibit 5, Constable Mante advises the accused at the outset that he is turning his recorder back on and that he is going tokeep it on for the duration of his dealings, to which, Mr.

May responds, "Okay, all right." A short while later in the audio-recording, Mr.May makes reference to the circumstances of his arrest and also to his handcuffs being too tight. When Constable Mante reads theaccused the breath demand and detains him for the purposes of an impaired driving investigation, he once again tells the accused that hehas the right to counsel, throughout which, the accused interrupts, but when Constable Mante begins to repeat the police warning, Mr.May responds by repeating back part of the warning. There is the following exchange: CONSTABLE MANTE: Anything you say, sir -- MR.

MAY: Can and will be used against you. CONSTABLE MANTE: It is my duty to inform you. MR. MAY: Yeah, I know. [35] It is apparent from this exchange the accused understands what Constable Mante has told him about his rights and heunderstands that his statements can be used against him. The accused then continues to make spontaneous utterances to the police thatare not in response to any questions by the officers.

In fact, Constable Mante seems to be deliberately refraining from asking the accusedany questions while the accused seems compelled to make statements to police officers and appears unconcerned about theconsequences. For example, in Exhibit 5, Mr. May is heard making the following statements that were not in response to any question byeither of the officers: MR. MAY: Are you recording this? Are you? Are you recording this? CONSTABLE MANTE: [apparently into the radio] I'll be 17 to the hospital for a check and then six-five to cells. MR. MAY: You guys, it was your old lady, what would you do? What would you do?

Hey, you walk into your fuckin' house and seesomeone fuckin' your old lady, what would you do? Tell me, and I'm the bad guy, right? Fuckin' think about that one. Think about it. I'm not a bad guy. He fuckin' deserved another shot, cocksucker. The only problem is, is that I didn't have a big enough gun. Are you

listening? [ 36 ] Shortly after this statement, there is this exchange: MR. MAY: You taping this? CONSTABLE MANTE: Sure am, like I told you from the start. MR. MAY: Well, fuck off. Fuck you, it's all bullshit because I'm fucked in the head. I don't know what I'm talking about. Fuckers. I don't have anything against you guys. Only thing I fuckin' hate is that you put the cuffs on too hard on my fuckin' -- CONSTABLE MANTE: I don't hate you, either. MR. MAY: That's all, and you guys got a job to do, right? I know that. Well, what would you do? Fuck, come on.

You're sitting there fuckin' listening being recorded, what would you do? You like that? Tell me why you won't give me a fuckin' answer at least, man? At least you're fuckin' -- I let you take me down, didn't I? Hey, you guys don't fuckin' -- okay, don't fuckin' give me the benefit of the doubt. Of course not, because you guys are perfect. You fuckin' know what you'd do, same thing as me. CONSTABLE MANTE: Phil, the only reason I'm not speaking with you -- [ 37 ] Mr.

May continues to make statements to police knowing that he does not have to speak with them, knowing that he is being recorded, and knowing that they are not asking him questions or really speaking to him at all. It appears from this exchange that Mr. May is upset that police will not respond to him and answer his questions. While the circumstances of his arrest form part of the context for the statements made by Mr. May in Exhibits 4, 5, 6, and 7, I agree with the Crown's submission that the forceful nature of the arrest did not result in an atmosphere of oppression that in some way caused Mr.

May's will to be overborne. He is extremely vocal and expressive throughout, alternating between being angry at police and deliberately uncooperative as Constable Mante tries to advise him of his Charter rights and police warning to expressing bravado about the circumstances of his arrest, making comments such as in Exhibit 5, "I let you take me, down, didn't I?" [ 38 ] This theme of spontaneous statements by Mr. May continues after he reaches the detachment.

In Exhibit 6 while the accused is being swabbed for gunshot residue, he once again begins making statements without prompting by the police officer and with a lack of concern about the consequences. The accused also demonstrates clear awareness that his utterances are being recorded. The accused and Constable Mante had the following exchange to which I have already referred: MR. MAY: The only fuckin' problem is it wasn't big enough CONSTABLE MANTE: What wasn't? MR. MAY: The gun. CONSTABLE MANTE: The gun? Big enough for what? MR. MAY: Kill him.

Go ahead and record all of this. [ 39 ] Similarly in Exhibit 7, the audio-recording of the accused being breath-tested at the detachment, the accused continues to make statements that are entirely spontaneous and not in response to any questioning by officers. For example, when Constable Mante and Mr. May enter the Breathalyzer room where Constable Hutt is located, the following exchange is recorded: CONSTABLE MANTE: Just have a seat. MR. MAY: I wish I had a bigger gun, you know. CONSTABLE MANTE: Where would you -- just have a seat in the green chair.

CONSTABLE HUTT: Just have him sit in the chair there. [ 40 ] After Constable Hutt explains the process taking breath samples, the accused responds: MR. MAY: Okay. Where did I get the son of a bitch? In the mouth? CONSTABLE MANTE: Mm-hmm. MR. MAY: Fuck, I didn't aim for the mouth. Fucker. CONSTABLE MANTE: Sounds like you hit him in the jaw. MR. MAY: Hmm, I don't know, too small of a fuckin' bullet. Tell him it's still coming. CONSTABLE MANTE: Yeah. [ 41 ] Later in Exhibit 7, Mr. May once again appears to demonstrate bravado about the manner of his arrest. He has the following exchange with Constable Mante: MR.

MAY: Fucked up there. I can't believe you guys didn't shoot me.

CONSTABLE MANTE: I don't want to shoot people. MR. MAY: I thought ___ now. CONSTABLE MANTE: I'm sure you did. MR. MAY: I was gonna fuckin' draw on you. I don't know why I fuckin' didn't, actually. That fuckin' guy tried to knock me off the fuckin' road. CONSTABLE MANTE: What's that? MR. MAY: The cop tried to knock me off the road wasn't very good. That was lame for fuck sakes. I don't regret anything. CONSTABLE MANTE: No? MR. MAY: Nothing at all, except not using a bigger gun. That's the only thing I regret.

So you can use that for court or evidence if you need to. [ 42 ] In my view, this passage demonstrates clearly that Mr. May knew precisely what he was saying and the purpose that it could be used for, namely, evidence in court, and that he simply did not care about the consequences. I do not agree that the circumstances of his arrest resulted in an oppressive atmosphere that raises a reasonable doubt about the voluntariness of Mr. May's statements in Exhibits 4, 5, 6, and 7. [ 43 ] Mr.

May's state of sobriety and his physical state after his arrest also do not raise a reasonable doubt regarding the voluntariness of these statements. In Exhibit 6, the video-recording of Mr. May in the back of the police vehicle, Mr. May is seen to be somewhat agitated and at times emotional, but he does not appear to be in any discomfort and he does not complain of any physical injuries or discomfort other than wrist pain from the handcuffs. When asked by Constable Mante if he is injured, Mr.

May responds that he is not injured other than his wrist from the handcuffs and Constable Mante advises him that they will remove the cuffs and have him seen by paramedics. The officer makes no attempt to question Mr. May and, in fact, Constable Mante's specifically tells Mr. May that he wants to get his side of the story, but wants to wait until he has a chance to contact counsel. Mr. May eventually says that he does not need a lawyer and continues to make the unprompted utterances to Constable Mante.

Despite his consumption of alcohol and any injuries he may have suffered as a result of the circumstances of his arrest, it is clear that Mr. May had an operating mind with respect to the audio and video-recorded statements that are Exhibits 4, 5, 6, and 7 on the voir dire . [ 44 ] I have concluded that the Crown has established beyond a reasonable doubt that these statements were voluntary and, therefore, the statements are admissible at trial. [ 45 ] Exhibits 8 and 9 on the voir dire , as I have already noted, are the audio-recorded statements of Mr. May from June 1st and June 2nd.

In Exhibit 8, Constable Mante confirms to the accused that he has been arrested on the previous day for attempted murder and that further charges are being laid in connection with the incident. Constable Mante then advises Mr. May of all of the additional charges and, once again, reads him his Charter rights and the police warning that he is not obliged to say anything. Mr. May responds that he understands the rights and warnings and declines to speak with a lawyer. In Exhibit 9, Mr. May is recorded interacting with Constable Mante during the transfer of custody to the sheriffs. Once again, Mr.

May makes a number of spontaneous utterances about the alleged offences which are not elicited by Constable Mante and are not in response to any questions by him. There is no evidence of any threats or inducements, any oppression or police trickery, and Mr.

May's utterances are clearly responsive and the product of an operating mind. [ 46 ] I have concluded that the Crown has established beyond a reasonable doubt that the statements in Exhibits 8 and 9 on the voir dire are voluntary and they are, therefore, admissible at trial. [ 47 ] With respect to the warned statement to Constable Smith, Exhibit 10 on the voir dire , the Crown submits that the evidence on the voir dire establishes that the statement is voluntary. She submits that the evidence establishes that there were no threats or promises as was confirmed by the accused during the interview.

There was no oppression and the accused clearly had an operating mind as was evident by his eventually asserting his right to silence and refusing to continue the interview. Crown counsel also submits that there was no police trickery as evidenced by the testimony of Constable Smith and that he did not deliberately misstate the evidence known to him at the time when he took the statement from the accused. Counsel for Mr.

May submits that the officer either deliberately misstated the evidence by omitting any mention of a struggle before and during the discharge of the firearm or he neglected to inform himself of the evidence. He submits that the passage of the statement is misleading and amounts to evidence of police trickery. [ 48 ] During the course of the interview, the general interrogation strategy Constable Smith seems to have adopted was to confront Mr. May with the evidence he had obtained from Ms.

Niksic and try and obtain an admission from him regarding, firstly, his involvement in the incident and, secondly, his intention. The interview took place in a designated room in the 100 Mile House RCMP detachment offices. There does not appear to be anything unusual or uncomfortable about the room. Mr. May is seen seated in a chair in the corner of the room next to a table on which is placed a handheld audio-recorder and a piece of paper. The interview is fairly short, lasting only 32 minutes, and the accused made a number of admissions that were consistent with the utterances that had been recorded earlier.

There is no evidence that Mr. May complained of anything or displayed any outward signs of discomfort and, on two occasions, during the interview, Mr. May was asked about his physical condition and comfort and offered a drink and a bathroom break. Towards the end of the interview, Mr. May refuses to talk without a lawyer being present. The police officer persists in asking questions and Mr.

May answers some of those questions, but then again asserts his right to silence and refuses to continue the interview without a lawyer being present, at which point, the interview ends. [ 49 ] In Exhibit 10 on the voir dire , Constable Smith is heard outlining what he understands at that point in the investigation. Towards the end of the first paragraph on page 5 of the transcript, Constable Smith says the following: Q From what I understand at that point in time you came into the residence, went straight down the hallway towards the bedroom,

aimed and fired your gun at the other guy. So my question to you, Phil, is did you walk into that residence yesterday morning around8:25 and shoot that guy? MR. MAY: Nobody else did. CONSTABLE SMITH: Did you do it? MR. MAY: Yeah. CONSTABLE SMITH: You did. Can you tell me what your intent was when you showed up there with that firearm? MR. MAY: I don't know what my intent was. [50] I accept the evidence of Constable Smith that his understanding of Ms. Niksic's evidence was that she said she had grabbed forMr.

May and knocked the gun and he had not spoken to or read any statement from Dean Jones prior to his interview with Mr. May. Ialso accept his evidence that his intention was to briefly summarize what he understood Ms. Niksic's evidence to be so that he could getto the question at the end and that, in his view, the brief

summary was correct. While the statement by Constable Smith may not havecaptured all of the aspects of the interview with Ms. Niksic, in my view, the omission, if there was one, was insignificant and it did notaffect the voluntariness of Mr. May's statement. The question posed by Constable Smith at the end of the paragraph was clear and theresponse by Mr. May indicated that he understood and was responding specifically to the question he was being asked. Later in thestatement, Mr. May himself goes on to describe the struggle involving Ms. Niksic.

In my view, this does not amount to police trickery inorder to induce a confession and, even if it did, it does not reach the level of conduct that would shock a community. [51] The Crown has established beyond a reasonable doubt that the statement made by Mr. May to Constable Smith on June 1, 2014,was voluntary and it is therefore admissible at trial. [52] With respect to the utterances made by Mr. May to Constable Ziemer, the Crown submits that the evidence on the voir direestablishes that those utterances were voluntary.

Crown counsel noted that Constable Ziemer testified that he did not initiate theconversation and he did not attempt toelicit information from Mr. May. He also testified that his response, namely, that he did not knowif the complainant was alive or not, was true. Constable Ziemer also testified that he wrote down verbatim the entire conversation thattook place inside the police vehicle. Under cross-examination, Constable Ziemer admitted that he did have access to an audio-recorder,but he did not record the conversation with Mr. May. He testified that there was not a lot of conversation with Mr.

May that day and thathe captured the important information which he testified to on the voir dire. [53] Defence counsel submits that this court should have concerns about Constable Ziemer's evidence and his failure to record theutterances by Mr. May. He described Constable Ziemer's lack of memory about other aspects of the conversation with the accusedsuspicious and suggested that Constable Ziemer picked up small bits of conversation out of a longer period of conversation that occurredover one-and-a-half hours that he had Mr. May in his custody.

He submits that the absence of a recording of this conversation results inthere being nothing to allow the court to assess the accuracy of the record. I did not find it suspicious that Constable Ziemer did notrecord his interaction with Mr. May on his personal audio-recorder. His evidence was that he was tasked with transporting Mr. May tothe hospital for assessment by a doctor. He was not tasked with questioning Mr. May and, based on his evidence, he did not do so. Hecertainly did not deliberately set out to interrogate Mr. May.

In those circumstances, it is not surprising or suspicious that he did notrecord his interaction with Mr. May. [54] The utterances to which Constable Ziemer testified were along the same lines as those that were recorded by Constable Manteand later by Constable Smith. The Crown submission was that they were largely the same narrative. As with the other statements, thereis sufficient evidence before me to conclude that there were no threats or inducements and no oppression or police trickery. Thestatements made were the product of an operating mind.

As with the previous statements that were recorded, Constable Ziemer'sevidence is that they were unprompted by him. It is true that Constable Ziemer could not recall the exact words used by Mr. May at thehospital when he was describing why he should be considered a hero, but it is clear from the decision of the B.C. Court of Appeal in R. v.Arkell (1980) (BC CA), 54 C.C.C. (2d) 266, that the fact that a witness is unable to relate the entire conversation withthe accused does not by itself render the statement involuntary.

I agree with the Crown's submission that the voluntariness analysis withrespect to the utterances to Constable Ziemer is the same analysis as with the other statements. [55] I have concluded that the Crown has established beyond a reasonable doubt that the statements made by the accused toConstable Ziemer during the transportation to and visit at the hospital on June 1, 2014, were voluntary and that they are, therefore,admissible at trial. [56] The concerns raised by defence counsel regarding the lack of detail of the statement attributed to Mr.

May at the hospital, in myview, go to weight rather than admissibility. I do not accept the submission of defence counsel that the utterances of Mr. May at thehospital, if found to be voluntary, should be ruled inadmissible because their prejudice outweighs their probative value. The facts in thiscase are vastly different from those in the case provided by defence counsel, R. v. Wills, a decision of the Ontario Superior Court ofJustice from October 23, 2006. In that case, the words used in the statement were not comprehensible and the meaning of the words usedwas not apparent.

There were also references to the merits of a particular counsel that the court found had absolutely no probative value. The court determined in that case that there was a danger that the jury would engage in their own

interpretation of the words and come tothe wrong conclusion about their meaning. That is not the case here. The statement to which Constable Ziemer testified has clearprobative value which outweighs the prejudicial effect, in fact, if there is any prejudice. [57] The statements by the accused to Constable Ziemer are admissible at trial. “The Honourable Madam Justice Church”