R. v. McWhirter, 2017 BCSC 2560

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McWhirter, 2017 BCSC 2560 Date: 20171024 Docket: 81615-2 Registry: Kelowna Regina v. Donahugh Fredrick McWhirter and Brittany Marie Stinn Before: The Honourable Mr. Justice Davies Voir Dire Ruling No. 2 on Voluntariness Counsel for the Crown appearing by teleconference: P. Mann K.K. Guest Counsel for the Accused Donahugh Fredrick McWhirter: C.L. Corriveau Counsel for the Accused Brittany Marie Stinn: M.A. Newcombe Place and Date of Trial/Hearing: Kelowna, B.C. October 10 - 13, 2017 Place and Date of Judgment: Kelowna, B.C.

October 24, 2017 [ 1 ] THE COURT: Donahugh McWhirter and Brittany Stinn are charged on a multi-count indictment alleging possession of drugs and possession of drugs for the purpose of trafficking, as well as various firearms offences. The various offences are alleged to have occurred on or about November 4, 2014, in Merritt, British Columbia, and in Lake Country, British Columbia, on or about January 29, 2015. [ 2 ] The accused were first arrested in Merritt at a traffic stop that is the subject of the first voir dire in these proceedings.

I have dismissed the accused's allegations of various Charter breaches alleged to have been committed by the police at that time with reasons to follow. [ 3 ] The accused were again arrested on January 29, 2015, in Kelowna, British Columbia, following a 10-month investigation of the crimes they are alleged to have committed, including those related to the Merritt arrest. [ 4 ] On January 30, 2015, members of the Royal Canadian Mounted Police CFSEU team investigating the accused and others conducted interviews of both accused. [ 5 ] The Crown submits that Mr.

McWhirter made admissions in the police interview of him that the Crown intends to rely upon at trial and has applied for a ruling that the statements made by Mr. McWhirter to the police were made voluntarily. [ 6 ] No similar application is made with respect to the interview of Ms. Stinn. [ 7 ] Mr. McWhirter opposed the Crown’s voluntariness application. Evidence on the V oir Dire [ 8 ] The Crown adduced the evidence of Constable Kevin Randall, the officer who arrested Mr.

McWhirter on January 29, 2015, as well as the evidence of Constable John Livingstone, who was also involved in the arrest, had dealings with the accused at the Kelowna Detachment of the RCMP where he was taken after his arrest, and participated in the impugned interview on January 30, 2015, at the Kelowna Detachment of the RCMP. [ 9 ] The Crown also adduced the evidence of now-retired RCMP Sergeant Peter Maw, who was then a corporal and was also the senior non-commissioned officer in charge of the CFSEU investigation team at the time of the interviews of both accused.

Sergeant Maw was involved that night in tasking Constable Livingstone to do the interviews of both accused and also in monitoring both interviews. He also participated with Constable Livingstone in interviewing Mr. McWhirter. [ 10 ] Virtually all of the relevant interactions between Constable Livingstone and Mr. McWhirter on January 29, 2015, and January 30, 2015, prior to the subject interview, were audio recorded.

[ 11 ] The interview, which is the primary subject of this voir dire , was also both audio and video recorded. To the extent it was not recorded, it does not impact the decisions I must make. [ 12 ] The Crown adduced the audio and video recordings in evidence, together with transcripts of all recordings.

I find that those transcripts were, with some minor corrections noted during the evidence of Constable Livingstone and Sergeant Maw, accurate transcriptions but remind myself that the transcripts are only aids and the primary evidence is the words and actions of the participants as recorded on the audio or video tape, as the case may be. [ 13 ] Mr. McWhirter did not adduce evidence on the voir dire and Ms. Stinn took no position on the voluntariness questions in issue.

Police Interaction with Accused at and after the Arrest on January 29, 2015, Prior to the January 30, 2015, Interview [ 14 ] The common law voluntariness rule that I will discuss engages the question of whether, in any given case, the police may have made promises, threats, or inducements to an accused that may have had a continued impact upon the voluntariness of statements later made by that accused. The totality of the evidence of the interactions between the RCMP at the time of Mr.

McWhirter’s arrest on January 29, 2015, during subsequent proceedings at the scene of the arrest and in cells at the Kelowna Detachment that night, as well as in cells on January 30, 2015, establishes beyond a reasonable doubt that no such interaction had any impact on the voluntariness of the recorded statement that is the subject of this voir dire . [ 15 ] Mr. McWhirter was provided with Charter and police warnings at the time of his arrest and afterwards, when his jeopardy increased due to a search of his residence which resulted in the seizure of firearms and ammunition as well as a quantity of steroids.

He was provided with access to counsel on two occasions and was given a choice as to whether or not he wanted to participate in the audio and video-recorded interview that is now in issue, and was also once more provided the opportunity to consult counsel. He declined to contact counsel. [ 16 ] Mr. McWhirter at all times in his dealing with the police made it clear that he was aware of his right to silence and that anything he said could be used against him.

The January 30, 2015 Interview [ 17 ] The interview that is the subject of this voir dire lasted for almost two hours, from about 10:45 p.m. on January 30, 2015, until 12:44 a.m. on January 31, 2015. Mr. McWhirter was brought to the interview room by Constable Livingstone after being removed from cells. Because of the policy at the Kelowna Detachment at the time, he was placed in handcuffs while being transported to the interview room. Those handcuffs were removed for the entirety of the interview. [ 18 ] By the time of the interview, Constable Livingstone had completed his interview of Ms.

Stinn. [ 19 ] Constable Livingstone interviewed Mr. McWhirter for about one hour alone, while Sergeant Maw was monitoring. Sergeant Maw then joined the interview for about the last hour. [ 20 ] Mr. McWhirter was cooperative in the entire interview process and engaged in free-ranging discussions about many non-criminal issues with both officers, who obviously intended to try to bond with him to facilitate the obtaining of a statement. [ 21 ] Both officers also used the relationship between Mr. McWhirter and Ms.

Stinn, not only to stimulate conversation, but also to emphasize to him the extent to which she also faced criminal jeopardy for the offences for which they had both been arrested. [ 22 ] The focus of Mr. McWhirter’s dispute about the voluntariness centres upon what his counsel submits was the exploitation of his relationship with Ms.

Stinn and misinterpretation of the jeopardy that she faced that amounted to an implied inducement to him to make any admissions he may have made about his own culpability and thus vitiates the voluntariness of any such admissions. [ 23 ] I pause here to note that I specifically do not find that any allegedly inculpatory admissions were in fact made by Mr. McWhirter.

As I told counsel during argument, that is an issue that would be addressed at trial if I concluded that any allegedly inculpatory statements that were made by him were voluntarily made. [ 24 ] Other than the alleged improper exploitation of the relationship between Mr. McWhirter and Ms. Stinn and the alleged misrepresentation of her jeopardy as a party to the offences Mr. McWhirter is alleged to have committed, resulting in an inducement that vitiates voluntariness, counsel for Mr. McWhirter did not point to any conduct of the police that would render Mr. McWhirter's statements involuntary.

Analysis [ 25 ] The leading cases on the law of voluntariness are R. v. Oickle , 2000 SCC 38 , and R. v. Spencer , 2007 SCC 11 . Also of particular relevance to the inducement issues in this case are R. v. Heatley , 2015 BCCA 350 , and R. v. Engel , 2016 ABCA 48 , relied upon by the Crown, and R. v. Hernandez , 2008 BCSC 671 , relied upon by Mr.

McWhirter. [ 26 ] Because the only issue of voluntariness that arises in this case concerns the issue of inducement, I will not address the many other aspects of the common law confessions rule all of which are enunciated in Oickle , such as: clear direct promises, or threats, or

oppression, that may raise a reasonable doubt about whether the will of the accused person has been overborne or has had theconsequence of depriving the accused of an operating mind. [27] Such issues do not arise on the facts of this case. [28] On the issue of inducement as a factor in determining voluntariness where what is at issue is the potential exploitation of anaccused’s close or intimate relationship with another person, I accept the following statement of the Alberta Court of Appeal in Engel atparas. 14 to 16 as being a correct

interpretation of authority that is binding upon me in relation to the decision I must make. [29] In Engel at paras. 14-16 the Court stated: 14 The meaning of voluntary in this context was addressed by the Supreme Court in R v Oickle, 2000 SCC 38, [2000] 2 SCR 3, andagain in R v Spencer, 2007 SCC 11, [2007] 1 SCR 500. Both were recently referred to at length by the British Columbia Court of Appealin R v Heatley, 2015 BCCA 350, 327 CCC (3d) 1.

From those decisions, the following statements are particularly relevant to the issuesbefore us. 15 In Oickle, the Supreme Court concluded at para 57: Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspectthat it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or incombination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. ...

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether is comes in theform of a threat or a promise. 16 Then, in Spencer, the court, commenting on the foregoing passage, stated at para 15: Therefore, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of theinducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextualanalysis into the voluntariness of the accused's statement. [30] I also refer to Engel at paras. 19 to 23, in which the Court stated: [19] The appellant’s statement that he had “a lot of years in the system” was an apparent reference to his lengthy record of criminalconvictions, which spanned 20 years and included a prior conviction for first degree murder while a young offender. [20] It is against that backdrop that we consider the relevant legal principles.

Curiously, Oickle, Spencer and the case at bar all share acommon feature: the accused’s concern for his girlfriend. The Supreme Court considered that a threat to a third person, such as a lovedone, could be an improper inducement.

In Oickle, Iacobucci J. quoted with approval the following passage from R v Jackson (1977), (BC CA), 34 CCC (2d) 35 (BCCA) at para 38 in support of that statement (at para 51 of Oickle): It is my opinion that for a promised benefit to a person other than the accused to vitiate a confession, the benefit must be of such a naturethat when considered in light of the relationship between the person and the accused, and all the surrounding circumstances of theconfession, it would tend to induce the accused to make an untrue statement, for it is the danger that a person may be induced bypromises to make such a statement which lies at the root of this exclusionary rule. [21] With that in mind, the court in Oickle found that the accused’s relationship with his girlfriend was strong enough to potentiallyinduce a false confession if she were threatened with harm.

However, no such threat had been made. Indeed, all the police proposed wasto not polygraph Oickle’s girlfriend if he confessed. The court concluded that this was not a strong enough inducement to raise areasonable doubt as to the voluntariness of the confessions (para 83). In Spencer, the trial judge concluded that allowing Spencer to visithis girlfriend only after he “cleaned his slate” was an inducement, but “a lesser inducement” and not strong enough to affect thevoluntariness of the confessions (para 8). [22] Turning to the case at bar, in the course of the interview with Sgt.

McCullum where the appellant confessed to the killing, hefrequently expressed concern for his pregnant girlfriend, who he understood was also in custody and being questioned about anyinvolvement she may have had in the offence. It is also correct that the appellant wanted Sgt.

McCullum to direct his colleagues to stopthat questioning. [23] What is missing, however, is any kind of quid pro quo, let alone one of such significance that it overbore the appellant’s will.Our reading of the transcript supports the trial judge’s finding that there was never a promise, agreement or even suggestion that if theappellant confessed, the questioning of his girlfriend would stop. [31] The evidence on this voir dire established that Mr. McWhirter was not only experienced in dealing with the criminal justicesystem, but was well aware of and prepared to assert his right of silence.

He did so regularly when the police turned the questioning ofhim to questions that could elicit inculpatory responses to the allegations against him. His most common response to such questioningwas, “I’ll leave that to my lawyer.” [32] In this case, there is also no evidence capable of establishing a quid pro quo that could overbear Mr. McWhirter’s will. Therewas never any promise of any kind made by either officer. [33] Indeed, to the contrary, the following passage is instructive of the care that the officers took to avoid the making of promisesconcerning Ms. Stinn that could taint the interview and Mr.

McWhirter’s knowledge of and assertion of his rights. I quote from the

transcript of the interview (Exhibit C on the voir dire ), at page 139: [Livingstone] : Yeah, you know, and like Pete says, you know, it's - there's no question that it's you. You're there, you're doing these things. The problem is - is, you know, Brittany is there too, and she wears this jeopardy, right? Uh, and uh - and, we - and, uh, if she doesn't have anything involved in it, and you want all this stuff, for you to say that, would be a huge [f-ing] thing, right? And, that would take her out of, right? Well . . . you know . . .

The problem is we . . . you know, I'm not gonna blow smoke up you - uh, I can't make you any promises, but I all I can do, is put the evidence forward [Mr. McWhirter]: Yeah. [Maw]: . . . on the truth, and if— if [McWhirter]: Yeah. [Maw]: . . . you wanna tell us what the truth is, we'll put the evidence forward. That - that's what it comes down to. It's - it's the truth. It it's, uh the truth about who owns what. [Mr. McWhirter]: Yeah. [Maw]: Who's doin' what. [Mr. McWhirter]: Yeah, okay. So, she owns the car. It doesn't matter. And, my lawyer will fight that.

The bottom line is, is she's never done any of this shit. Like - [Livingstone]: Mm-hmm. [McWhirter]: . . . there's no - nothin' that shows her doing anything, except for being with her boyfriend. Right? So, I mean - [Maw]: Well, the problem is, for the drugs, it comes down to knowledge and control, right? [McWhirter]: Well, that's why I'll deal with the lawyer, right? [Maw]: I - I know. I just - [McWhirter] I mean . . . [Maw]: Uh - [McWhirter]: . . . if there's - [Maw]: . . . Donny, we're not trying to beat - you know, I'm - I'm not trying to brow beat ya.

I'm ju (ph) - [McWhirter]: If there's gonna be some kind of pressure on what has to be said, that [Maw]: There's no pre (ph) - [McWhirter]: . . . will be said - [Maw]: . . . let - my friend . . . [McWhirter]: Whatever will be said - [Maw]: I wanna cle (ph) - listen, I - I wanna clean it up. There's no - there's no pressure on you to do anything. All I'm telling ya, is, uh, we're here to - for the truth.

That's all. [Livingstone]: Yeah. [McWhirter]: Yeah. [Livingstone]: That's it. [Maw [sic - McWhirter]]: I get it. [Maw]: Yeah. [McWhirter]: Like I said, I, uh have the remain silent. [ 34 ] I am satisfied that while the police did use Mr. McWhirter’s relationship with Ms. Stinn to attempt to have him inculpate himself, they never did so in any way that offended the voluntariness rule as enunciated in Oickle and Spencer . They made no promises and engaged in no conduct that overbore Mr. McWhirter’s will in any way. [ 35 ] I also do not accept the submission that the police misrepresented Ms.

Stinn’s jeopardy in any way that would amount to trickery of a type that would undermine the voluntariness of Mr. McWhirter’s statements in the interview.

Conclusion [ 36 ] The Crown has established beyond a reasonable doubt that the statement made by Mr. McWhirter on January 30 through January 31, 2015, was not a product of inducement, an atmosphere of oppression, lack of an operating mind, the overbearing of his will, or police trickery. [ 37 ] I find that the statement was voluntarily made. “The Honourable Mr. Justice Davies”