R. v. Blackmore, 2017 BCSC 2682

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Blackmore, 2017 BCSC 2682 Date: 20170501 Docket: 31247-1, 31247-2 Registry: Cranbrook Regina v. Winston Kay Blackmore James Marion Oler Before: The Honourable Madam Justice Donegan Voluntariness Voir Dire Ruling Re: Statements of James Marion Oler Counsel for the Crown: P.J. Wilson, Q.C. M.B. Rankin Counsel for the Accused Blackmore: B.F. Suffredine, Q.C. Appearing on his own behalf: J. Oler Counsel appearing as amicus curiae : J.M. Doyle Place and Date of Trial/Hearing: Cranbrook, B.C. April 25-26. 2017 Place and Date of Judgment: Cranbrook, B.C.

May 1, 2017 INTRODUCTION [ 1 ] James Marion Oler stands charged with one count of polygamy, contrary to s. 293(1) (

a) of the Criminal Code , R.S.C., 1985, c. C-46 [ Code ]. Specifically, Mr. Oler is alleged to have practised a form of polygamy or practised a kind of conjugal union with four women: Gwen Renae Oler, Chantelle Quinton, Amelia Steed, and Carole Barlow. [ 2 ] In support of its case, the Crown seeks to tender certain admissions alleged to have been made by Mr. Oler to authorities on October 5, 2005 and January 26, 2006. The sole issue in this voir dire is whether the Crown has proven Mr. Oler's statements and conduct were voluntary beyond a reasonable doubt.

FINDINGS OF FACT [ 3 ] The Crown called three RCMP witnesses in this voir dire : now Chief Superintendent Mark Fisher, Constable Livingstone, and retired Constable Shaigec. Mr. Oler called no witnesses and did not cross-examine any witnesses. As amicus curiae , Mr. Doyle cross- examined these witnesses and made submissions on the issues of fact and law engaged in this voir dire . He was of great assistance to the court in fulfilling its obligation to ensure that Mr.

Oler receives a fair trial. [ 4 ] Other than one area of Chief Superintendent Fisher's evidence conceded by the Crown to be unreliable, the facts I am encouraged to find are not in dispute. [ 5 ] I find all three officers were honest and credible witnesses, doing their best to remember events that occurred over 11 years ago. With the exception of the one area identified by Mr. Doyle and by Mr. Wilson in the evidence of Chief Superintendent Fisher, I find the evidence of all three officers, overall, to be reliable as well.

The Background and Commencement of the Investigation [ 6 ] In 2004, then Sergeant Fisher, was the commander in charge of the Creston RCMP detachment. Policing of the nearby community of Bountiful was the responsibility of that detachment. Chief Superintendent Fisher first met Mr. Oler, the bishop of the Bountiful community at the time, on December 13, 2004, at a school in Bountiful. Mr.

Oler gave the officer a tour of the community and they discussed property and other matters unrelated to the subject matter of this voir dire . [ 7 ] In 2005, Chief Superintendent Fisher received a number of complaints about the community of Bountiful. He received a specific complaint pertaining to "underage wives" in the community in March 2005. As a result, he tasked Constable Livingstone of the

Creston detachment to initiate an investigation. He requested additional resources be afforded for the investigation. [ 8 ] At the time the investigation was initiated, Chief Superintendent Fisher was aware that in the early 1990s, the RCMP had investigated the offence of polygamy in respect of two members of the Bountiful community, Dalmon Oler and Winston Blackmore. Dalmon Oler is the father of James Marion Oler.

He was also aware that as a result of their investigation, RCMP recommended polygamy charges, but Crown counsel did not approve those charges out of a concern that such an offence would not survive Charter scrutiny. [ 9 ] With this history in mind, Chief Superintendent Fisher decided the investigation initiated by the specific complaint should focus only on the offence of sexual exploitation of a person under the age of 18 years by a person in a position of authority, contrary to s. 153 of the Code .

He further decided the investigation would focus upon two persons in the Bountiful community who might be considered persons in authority, Winston Blackmore and James Oler, persons he understood were the former and current bishops of that community. Chief Superintendent Fisher was aware of the 2002 division in the community where approximately half of its members decided to follow Mr. Blackmore and the other half decided to follow Mr. Oler. [ 10 ] Constable Livingstone started interviewing the wives of Mr. Blackmore on March 17, 2005.

Constables Shaigec and Almasi of the Southeast District Major Crime Unit in Kelowna were tasked to assist with the interviews. Constable Shaigec became involved in September 2005. [ 11 ] On September 13, 2005, Chief Superintendent Fisher briefed Constable Shaigec about the historical polygamy investigation and the current sexual exploitation investigation. He told Constable Shaigec that the focus of their current investigation was on the offence or offences of sexual exploitation of persons under the age of 18 by persons in authority. He explained the operational plan was to first seek the cooperation of Mr.

Blackmore and Mr. Oler in speaking to their wives. Once those wives were interviewed, they would then seek to obtain any relevant documents and attempt to take chartered and warned statements from the two men. Chief Superintendent Fisher instructed that the interviews of the wives were to be recorded, ideally by video recording, but recorded in any fashion. [ 12 ] On September 23, 2005, Chief Superintendent Fisher met with Mr. Blackmore and advised him of the investigation into the allegation of sexual exploitation of persons under the age of 18 by a person in authority. He told Mr.

Blackmore he felt he could potentially be considered a person in authority and that investigators were seeking his cooperation in making arrangements to interview his wives. [ 13 ] Chief Superintendent Fisher went to Mr. Oler's home that same day in an effort to have a similar conversation with him, but Mr. Oler was not home at the time. He obtained Mr. Oler’s cellular telephone number. The Telephone Call with Chief Superintendent Fisher [ 14 ] Chief Superintendent Fisher followed up with Mr. Oler by calling him. This was the third time he had spoken to Mr. Oler.

I am satisfied it was the accused before the court that he spoke to on the telephone. Unfortunately, Chief Superintendent Fisher kept no notes of this conversation. He has a recollection of the conversation, but has no independent recollection of the precise day it occurred. No one else was present. It was not recorded. [ 15 ] As he had with Mr. Blackmore, Chief Superintendent Fisher advised Mr. Oler police were investigating the offence of sexual exploitation of a person under 18 by a person in authority, that police felt Mr.

Oler might be such a person in authority, and that police were looking to him to assist them in making arrangements to interview his wives in the investigation. He said that Constable Shaigec would be contacting Mr. Oler for this purpose. [ 16 ] Evidence was led about what Chief Superintendent Fisher recalled Mr. Oler said about his alleged wives during this call, but the Crown concedes, quite properly in my view, that in the absence of any notes or any record other than a reference in the report to Crown counsel of unknown origin, that the officer's 12-year-old recollections of what Mr.

Oler said to him are not reliable enough to be admitted into evidence. The Crown does not seek to rely upon them. [ 17 ] I do accept Chief Superintendent Fisher's evidence that the call occurred, the purpose of the call, and generally what he said to Mr. Oler. I accept the call occurred on October 4, 2005. Chief Superintendent Fisher’s evidence here finds support in the evidence of Constables Shaigec and Livingstone, who took certain steps on October 4 and 5, 2005 as a result of information they received from Chief Superintendent Fisher regarding this telephone call.

Constable Shaigec and Livingstone kept notes of the events of those days and their memories are reliable. [ 18 ] Constable Shaigec was involved in this investigation from September 13, 2005 until October 5, 2005. At Chief Superintendent Fisher's briefing of him on September 13, 2005, it was clearly communicated to him that he was to assist in the investigation into the offence of sexual exploitation of a person under the age of 18 by a person in a position of authority, not the offence of polygamy, and that he was to assist Constable Livingstone with interviews. The operational plan was discussed.

It was to first focus on the interviews of the wives and ex-wives of Mr. Blackmore and Mr. Oler, then conduct any interviews that might come from those interviews, then obtain documents relevant to the s. 153 investigation, such as marriage documents, birth certificates of the alleged wives and children, and finally to then attempt to obtain chartered and warned statements from both Mr. Blackmore and Mr. Oler. [ 19 ] On September 26, 2005, Constable Shaigec travelled to Bountiful. He called Mr. Blackmore and told him they were going to start interviewing his wives. Mr. Blackmore said that was fine.

Over the next three days, Constables Shaigec and Livingstone conducted many interviews. All of those interviews were recorded. After those interviews were completed, Constable Shaigec went home to Kelowna. [ 20 ] Constable Shaigec returned to Creston on October 4, 2005. On that day, he had a discussion with Chief Superintendent Fisher. Chief Superintendent Fisher was asked to contact Mr. Oler to advise him of the investigation and of the investigator's intention to speak to his wives.

[ 21 ] Constable Livingstone testified that on October 4, 2005 at 3:33 p.m., she received a call from Chief Superintendent Fisher. He gave her information that caused her to believe Mr. Oler had been spoken to about the investigation and that Constable Shaigec would be getting in touch with him. Mr. Oler's telephone number was passed along to Constable Shaigec. Constable Shaigec then tried to call Mr. Oler twice that day with no success. He left a message for Mr. Oler with the second call.

Contact was made the next day and interviews eventually resulted. [ 22 ] The evidence does not reveal any other telephone conversations Chief Superintendent Fisher had with Mr. Oler in that timeframe regarding interview arrangements. Constables Livingstone and Shaigec took steps on October 4 that are consistent with Chief Superintendent Fisher having contacted Mr. Oler that day to make those arrangements. In all of the circumstances, I am satisfied the conversation Chief Superintendent Fisher had with Mr. Oler did indeed occur on October 4, 2005.

October 5, 2005 – Telephone Call and In-Person Meeting [ 23 ] At 8:36 a.m. on October 5, 2005, Constable Shaigec tried calling Mr. Oler again. He left a message. At 9:00 a.m. that morning, Constable Shaigec received a telephone call from the local regional Crown counsel and he gave him an update on the direction of the investigation – an investigation into sexual exploitation by a person in authority. [ 24 ] At 10:15 a.m., Mr. Oler returned Constable Shaigec's call. The officer told Mr. Oler that he and Constable Livingstone wanted to meet with his wives.

He explained the nature of their investigation – sexual exploitation of persons under the age of 18 by a person in authority – and then asked him details about his wives. Mr. Oler told him that he had three wives: one was a “legal” wife, one was separated from him, and that there was “another one”. Mr. Oler told Constable Shaigec that he would check his

schedule and get back to him. [ 25 ] Constable Shaigec agreed in cross-examination that he contacted Mr. Oler in order to obtain his cooperation in being able to interview his wives, not to investigate him or to obtain a statement from him “about anything”. He had no intention to obtain anything from him that would put him in jeopardy. He was not gathering evidence against Mr. Oler. His intention was only to get in contact with his wives to interview them in respect of the sexual exploitation complaint. His telephone call with Mr.

Oler was not audio recorded or video recorded in any manner. [ 26 ] At 1:45 p.m. that same day, Constables Shaigec and Livingstone met Mr. Oler at his workplace in Bountiful. Constable Shaigec had arranged to meet with Mr. Oler at 2:00 p.m., so they were a bit early. Constable Shaigec advised Mr. Oler again they were undertaking an investigation into sexual exploitation. Mr. Oler was asked for his birthdate, his address and telephone numbers. He provided that information. He was asked about whether his wives would speak to police in the investigation. Mr.

Oler said they were not able to speak with him on that date, but if the officers called him, he would ensure they were able to meet. [ 27 ] Mr. Oler was asked about the number of wives he had, their names and dates of birth. In response, he gave the officers the names of three persons: Gwen Renae Oler, Chantelle Quinton and Rachel Holm. In regard to Gwen Renae Oler, Mr. Oler said that she was his “legal” wife, that she lived with him, and that he was unaware of her date of birth. In respect of Rachel Holm, Mr.

Oler said that they were separated, that she lived with Chantelle on communal property on the “Oler side”, and that he could not recall her date of birth. In respect of Chantelle Quinton, Mr. Oler told the officers that he could not recall her date of birth either. Although he could not recall their specific dates of birth, Mr. Oler told the officers that both Rachel Holm and Chantelle Quinton were 18 to 19 years of age when he married them. [ 28 ] Constable Shaigec told Mr. Oler that he would like to speak with his wives. Mr. Oler said he would contact them and let the officers know.

Constable Shaigec also told Mr. Oler that if they chose not to speak with police, he would like to hear that from them himself. Mr. Oler said that if he wanted that, that would be no problem. This conversation with Mr. Oler was not audio or video recorded. January 26, 2006 – In-Person Meeting [ 29 ] Constable Livingstone followed up with Mr. Oler on January 26, 2006. At about 9:45 a.m., she called Mr. Oler on his cellular telephone and they arranged to meet at 10:30 a.m. that day. She and Constable Almasi attended to Mr. Oler's workplace at 10:41 a.m. Inside his office, they found Mr.

Oler and a person he identified as Chantelle Quinton. Mr. Oler told the officers that he brought Ms. Quinton with him so that she could tell them that his wives did not wish to speak to police. [ 30 ] Constable Livingstone spoke to Ms. Quinton. She provided her name and date of birth, but refused to answer any other questions. The officers told Mr. Oler that they would need to speak to all of his wives in person. Mr. Oler said they could meet him at his office at 6:00 p.m. that day and he would bring his wives along. [ 31 ] Constables Livingstone and Almasi arrived at Mr. Oler's workplace at 6:04 p.m. Mr.

Oler was outside his office with persons he identified as Rachel Holm and Gwen Renae Oler. Mr. Oler explained that he forgot the keys to his office. He introduced the officers to his wives and said they could speak to them there. The officers told Mr. Oler they would have to speak to the women in private, and offered to do so in their nearby police vehicle with Mr. Oler standing nearby. Mr. Oler was hesitant to agree to this, but after he was told the officers would not be leaving or taking the women away in their vehicle, he told Ms.

Holm that she could go and sit in the police vehicle. [ 32 ] The officers spoke with Ms. Holm for five minutes. Their conversation was audio recorded. Ms. Holm answered the first two questions posed by police officers by providing her name and date of birth. She was next asked her address and she replied, "I'm not going to tell you." When asked her telephone number, she did not reply. She was then asked if Mr. Oler told her why they were there. She began to reply, saying, "To question us on our lives and what we…," but was then cut off by the officer.

The officer advised her that the offence they were investigating was sexual exploitation and that she was under no obligation to answer any of their questions. Other than saying she was not married and was in Canada on a student visa, she refused to answer any other questions.

[33] Gwen Oler was interviewed next. The officers told her at the commencement of the interview about the nature of the interviewand that she was not obliged to answer any of their questions. Like Ms. Holm, Ms. Oler only answered questions pertaining to her name,date of birth and citizenship. [34] The conversation with Mr. Oler that preceded these interviews was not video or audio recorded. Constable Livingstoneexplained that it was not recorded because police were there to interview Mr. Oler’s wives, not Mr. Oler. Mr. Oler was there to assistthem in interviewing them.

Police were not collecting evidence against him. They wanted access to his wives and he cooperated. [35] Mr. Oler was never told, at any time during any of the exchanges with RCMP in October 2005 and January 2006, that he had noobligation to speak to police. He was never warned that anything he said could be used against him in evidence in a sexual exploitationinvestigation or in any other way. LEGAL PRINCIPLES [36] When an accused person provides a statement to a person in authority, the Crown must prove beyond a reasonable doubt thatthe statement was made voluntarily for it to be admissible as evidence.

This common law rule, known as the confessions rule, is intendedto address concerns about the reliability and truthfulness of confessions, as well as the integrity of the administration of criminal justice.It is intended to strike a balance between the state's need to investigate and solve crimes, and the individual's right to fair treatment and tosilence: R. v. Tan, 2014 BCCA 9 at para. 99. [37] In R. v. Oickle, 2000 SCC 38, the Supreme Court of Canada set out the proper scope of the confessions rule.

It remains theleading case in this area today. [38] To understand the proper application of the confessions rule today, I think it is important to first understand the history andbasic principles that informed the Court's analysis in Oickle. [39] In defining the modern confessions rule, Mr. Justice Iacobucci, writing for the Court, began with a discussion of its historicaldevelopment, confirming Madam Justice McLachlin's analysis a decade earlier in R. v. Hebert, (SCC), [1990] 2 S.C.R.151.

The Court recognized that the jurisprudence to that point revealed two main approaches under the confessions rule: one narrow andthe other broad. [40] The narrow approach, originating in Ibrahim v. The King, [1914] A.C. 599 (P.C.) and adopted in Canada in cases such asBoudreau v. The King, (SCC), [1949] S.C.R. 262, gave the accused what was viewed as only a negative right; that is, theright not to be tortured or coerced into confessing by threats or promises.

Confessions were excluded only where authorities held outexplicit threats or made promises to the accused. [41] The much broader approach recognized in Hebert as persisting as "part of our fundamental notion of procedural fairness",focused not only on reliability but on voluntariness conceived more broadly.

It is an approach described by Madam Justice McLachlin inHebert, where: …the absence of violence, threats and promises by the authorities does not necessarily mean that the resulting statement is voluntary, ifthe necessary mental element of deciding between alternatives is absent (p. 166). [42] In Oickle, Justice Iacobucci went on to discuss this broader conception of voluntariness and ultimately concluded that theconfessions rule clearly embraces more than the narrow approach. Rather, it is concerned with voluntariness broadly understood.

TheCourt wrote: [26] While not always followed, McLachlin J. noted at p. 166 that this aspect of the confessions rule "persists as part of ourfundamental notion of procedural fairness". This approach is most evident in the so-called "operating mind" doctrine, developed by thisCourt in Ward, supra, Horvath v. The Queen, (SCC), [1979] 2 S.C.R. 376, and R. v. Whittle, (SCC),[1994] 2 S.C.R. 914. In those cases the Court made "a further investigation of whether the statements were freely and voluntarily madeeven if no hope of advantage or fear of prejudice could be found": Ward, supra, at p. 40.

The "operating mind" doctrine dispelled onceand for all the notion that the confessions rule is concerned solely with whether or not the confession was induced by any threats orpromises. [27] These cases focused not just on reliability, but on voluntariness conceived more broadly. None of the reasons in Ward or Horvathever expressed any doubts about the reliability of the confessions in issue. Instead, they focused on the lack of voluntariness, whether thecause was shock (Ward), hypnosis (Horvath, per Beetz J.), or "complete emotional disintegration" (Horvath, supra, at p. 400, per SpenceJ.).

Similarly, in Hobbins v. The Queen, (SCC), [1982] 1 S.C.R. 553, at pp. 556-57, Laskin C.J. noted that indetermining the voluntariness of a confession, courts should be alert to the coercive effect of an "atmosphere of oppression", even thoughthere was "no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence"; seealso R. v. Liew, (SCC), [1999] 3 S.C.R. 227, at para. 37.

Clearly, the confessions rule embraces more than the narrowIbrahim formulation; instead, it is concerned with voluntariness, broadly understood. [43] Justice Iacobucci then moved on to discuss the interplay between the confessions rule and the Charter, confirming that theCharter does not subsume the common law confessions rule. The common law confessions rule can afford individual protections beyondthose guaranteed in the Charter. In other words, the Court held that the confessions rule offers broader protection to an accusedchallenging the admissibility of a confession than does the Charter.

This is so for a number of reasons. [44] First, the confessions rule applies whenever a person in authority questions a suspect, whereas an accused must be arrested ordetained for the protections of ss. 7 and 10(

b) of the Charter to apply.

[45] Second, the Charter applies a different burden and standard of proof from that under the confessions rule. Under theconfessions rule, the Crown bears the burden of proof to show beyond a reasonable doubt the statement was voluntary. Under theCharter, the burden rests with the accused to show, on a balance of probabilities, a violation of his or her constitutional rights. [46] Third, the remedies are different. Under the Charter, a breach does not lead to automatic exclusion of the evidence. Evidencewill only be excluded if its admission would bring the administration of justice into disrepute.

A violation of the confessions ruleautomatically and always warrants exclusion. [47] With this background analysis, the Court in Oickle then began to define the nature and scope of the modern confessions rule. [48] The Court began by highlighting the twin goals or objects of the confessions rule – protecting the rights of the accused withoutunduly limiting society's need to investigate and solve crimes: para. 33. There, the Court approved Martin J.A.’s explanation of thetension between these goals in R. v.

Precourt, (1976), (ON CA), 18 O.R. (2d) 714 at 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 criminal investigation.…On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated toovercome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible: … [49] The Court then emphasized that all those involved in the administration of justice, but particularly courts applying theconfessions rule, must never lose sight of those twin goals or objectives. [50] The Court in Oickle then discussed the problem of false confessions in the context of the overriding concerns of the criminaljustice system that the innocent must not be convicted (paras. 34-46) and then outlined how the modern confessions rule responds tothese dangers. [51] The Court ultimately concluded that in order to address concerns about the reliability of confessions and the dangers of falseconfessions, courts applying the confessions rule must take a contextual approach that considers all relevant factors.

It outlined fourfactors to examine. These are whether the statement was made: (1) without threats or promises by a person in authority; (2) in anatmosphere free of oppression; (3) by an accused with an operating mind; and (4) without impermissible police trickery that would shockthe community: paras. 47-67. [52] Madam Justice Dickson, as she then was, summarized these four factors in R. v. Deboo, 2014 BCSC 1949 (aff’d R. v.

Deboo,2016 BCCA 62): Threats or promises [53] Threats or promises, standing alone or combined with other factors, will render a statement inadmissible if they raise areasonable doubt about whether the accused's will was overborne and thus the statement was made involuntarily. This is so becausethere is a risk that confessions which are prompted by threats or promises are unreliable. Nevertheless, some forms of inducement arepermissible. For example, appeals to conscience or spiritual beliefs generally do not produce involuntary confessions.

In all cases, thekey issue is whether, in one way or another, a quid pro quo was offered by police. If so, the confession will be inadmissible: Oickle,paras. 48-57. Oppression [54] An atmosphere of oppression can also impact upon a statement's reliability. As with threats or promises, this is becauseoppression might produce false confessions. For example, in oppressive circumstances an accused person might make a stress-drivenconfession to escape those conditions.

Alternatively, his or her will might be overborne to the point of self-doubt and a confession mightbe prompted based on the oppression: Oickle, paras. 58-62. [55] A wide range of factors might contribute to the creation of an oppressive atmosphere. For example, oppression might be foundwhere a vulnerable interview subject is deprived of needed food, sleep, or medical attention; denied access to counsel; or subjected toexcessively aggressive or intimidating questions over a prolonged period. Legitimate means of police persuasion such as pointedreferences to incriminating evidence, however, are permissible.

On the other hand, persistent police questioning in the face of repeatedassertions of the right to silence could support a conclusion that the subject's will was overborne and thus render a statement involuntary:Oickle; Singh, para. 47. [56] The assessment of whether police conduct is so oppressive as to overbear an accused's person free will is a matter of degree andhighly fact-specific. In R. v.

Singh, 2003 BCSC 2013, for example, Bauman J. (as he then was) found a statement was voluntary andobtained without Charter violation despite the fact that the accused asserted his right to silence 18 times and the questioning continuednevertheless. This conclusion was upheld on review at both appellate levels. In the Supreme Court of Canada, Charron J. remarked thatthe number of times an accused asserts the right to silence is part of the overall assessment in such cases, but not determinative. Theultimate question always is whether the accused exercised free will by choosing to make a statement: Singh, para. 53.

Operating Mind [57] A confession must be the product of an operating mind to support a finding of voluntariness. The operating mind criterionconcerns the reliability of the confession and the accused's capacity actively to choose whether to speak to a person in authority. Itrequires that the accused knows what he or she is saying to such a person and that what is being said can be used to his or her detriment.However, a higher degree of awareness or cognitive capacity need not be established.

In particular, it is unnecessary for the court toconsider whether the accused is capable of making a good or wise choice or one that is in his or her best interests: Oickle, paras. 63-64;R. v. Whittle, (SCC), [1994] 2 S.C.R. 914, para. 45.

[58] Evidence of intoxication or mental illness may raise a reasonable doubt as to whether an accused person has sufficient cognitivecapacity to satisfy the operating mind criterion. As to the former, a high degree of intoxication will typically be required to render astatement inadmissible on this basis. Statements made to persons in authority by intoxicated individuals often meet the operating mindtest and are, therefore, ruled admissible. In each case, as previously noted, the inquiry is highly fact-sensitive: R. v. Groves, 2013 BCCA446.

Impermissible Police Trickery [59] Considerations of police trickery relate to maintenance of the integrity of the administration of criminal justice. Accordingly,their use involves a distinct enquiry. Police trickery that is so appalling it would shock the community may render a statementinadmissible. For example, if a police officer pretends to be a chaplain or a lawyer in an effort to elicit a statement any statement soelicited may be excluded on this basis.

On the other hand, courts are wary not to limit police discretion unduly taking into account thevery real challenges associated with investigating and detecting crime: Oickle, paras. 65-67. [53] Of course, reliability of the confession is not the only concern. As the Court discussed throughout Oickle, the confessions ruleextends to a broader conception of voluntariness than just reliability. Ultimately, the Court in Oickle provided the following

summary ofthe confessions rule: (

e) Summary [68] While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality thebasic idea is quite simple. First of all, because of the criminal justice system's overriding concern not to convict the innocent, aconfession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional,narrow Ibrahim rule and the oppression doctrine recognize this danger.

If the police interrogators subject the suspect to utterly intolerableconditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Betweenthese two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to theentire circumstances surrounding a confession in making this decision. [69] The doctrines of oppression and inducements are primarily concerned with reliability.

However, as the operating mind doctrineand Lamer J.'s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception ofvoluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": J. Sopinka, S. N. Lederman andA. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339.

Voluntariness is the touchstone of the confessions rule.Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right tosilence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence.If a confession is involuntary for any of these reasons, it is inadmissible. [70] Wigmore perhaps summed up the point best when he said that voluntariness is "shorthand for a complex of values": Wigmore onEvidence (Chadbourn rev. 1970), vol. 3, para. 826, at p. 351.

I also agree with Warren C.J. of the United States Supreme Court, whomade a similar point in Blackburn v.

Alabama, 361 U.S. 199 (1960), at p. 207: [N]either the likelihood that the confession is untrue nor the preservation of the individual's freedom of will is the sole interest at stake.As we said just last Term, "The abhorrence of society to the use of involuntary confessions ... also turns on the deep-rooted feeling thatthe police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methodsused to convict those thought to be criminals as from the actual criminals themselves." ...

Thus a complex of values underlies the strictureagainst use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by eachin any situation varies according to the particular circumstances of the case. See Hebert, supra.

While the "complex of values" relevant to voluntariness in Canada is obviously not identical to that in the UnitedStates, I agree with Warren C.J. that "voluntariness" is a useful term to describe the various rationales underlying the confessions rulethat I have addressed above. [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 minor inducement,such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep,heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where thesuspect is treated properly, it will take a stronger inducement to render the confession involuntary.

If a trial court properly considers allthe relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for "somepalpable and overriding error which affected [the trial judge's] assessment of the facts": Schwartz v. Canada, (SCC),[1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship "Kathy K", (SCC), [1976] 2 S.C.R. 802, at p. 808) (emphasisin Schwartz). [54] The Supreme Court of Canada confirmed the Oickle Court’s outline of the confessions rule in R. v.

Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, when it was called upon to consider the scope of a detainee’s right to silence under s. 7 of the Charter andits interplay with the confessions rule. [55] In Singh, Charron J., writing for the majority, examined the nature and scope of the confessions rule, particularly in respect ofits commonality with the right to silence at paras. 27-40. [56] The Court began by observing that the right to silence, although now constitutionally entrenched in the Charter, long predatesthe Charter.

The Court, at para. 27, confirmed the court's definition of the common law right to silence set out in Rothman v. The Queen, (SCC), [1981] 1 S.C.R. 640, writing that the right simply:

…reflects the general principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the policeor respond to questioning. [57] The Court then explained what this right does not mean. While it recognizes an individual's right to remain silent, it does notmean that the person has the right not to be spoken to by the authorities. Concluding that the common law also recognizes the importanceof police interrogation in the investigation of crime, the Court wrote: [28] What the common law recognizes is the individual’s right to remain silent.

This does not mean, however, that a person has theright not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot bedoubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it isthought that useful information may be obtained. The person suspected of having committed the crime being investigated is noexception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer aboutthe incident.

Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime. [58] The Court went on to reinforce the principles outlined in Oickle, including the notion that voluntariness is broad-based and isnot only concerned with the reliability of the statements at issue: [30] …As this Court stated in Oickle (at para. 70): "Wigmore perhaps summed up the point best when he said that voluntariness is'shorthand for a complex of values' . . .

" These values include respect for the individual’s freedom of will, the need for law enforcementofficers themselves to obey the law, and the overall fairness of the criminal justice system… [Emphasis in original] [59] Following this confirmation of the broad-based approach to voluntariness, the Court then recognized that the confessions rulehas “long included the common law principle that a person is not obliged to give information to the police or answer questions”: para.31.

It held that this component of the rule is reflected in the usual police caution given to a suspect and how the presence (or absence) ofa caution is a factor to be considered in determining voluntariness. The Court wrote: [31] Therefore, the notion of voluntariness is broad-based and has long included the common law principle that a person is notobliged to give information to the police or to answer questions.

This component of the voluntariness rule is reflected in the usual policecaution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor indetermining the voluntariness of a statement made by a person under arrest or detention: see Boudreau v. The King, (SCC), [1949] S.C.R. 262; R. v. Fitton, (SCC), [1956] S.C.R. 958; R. v. Esposito (1985), (ON CA), 24C.C.C. (3d) 88 (Ont. C.A.) [page423]. A common form of the police caution given to a person who has been charged with an offence isthe following: "You are charged with ...

Do you wish to say anything in answer to the charge? You are not obliged to say anything butwhatever you do say may be given in evidence." Therefore, the police caution, in plain language, informs the suspect of his right toremain silent. Its importance as a factor on the question of voluntariness was noted by this Court as early as 1949 in Boudreau: The fundamental question is whether a confession of an accused offered in evidence is voluntary.

The mere fact that a warning was givenis not necessarily decisive in favour of admissibility but, on the other hand, the absence of a warning should not bind the hands of theCourt so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon their review theCourt is not satisfied of the voluntary nature of the admission, the statement will be rejected.

Accordingly, the presence or absence of awarning will be a factor and, in many cases, an important one. [Emphasis added; p. 267.] [60] The Court clearly held that the right to silence, as a facet of the principle against self-incrimination, was part of the confessionsrule long before the Charter came into force in 1982. The Court recognized this in Hebert, in Oickle, and then again in Singh.

In otherwords, the confessions rule clearly includes the right of an individual to make a meaningful choice whether or not to speak to authorities:Singh at paras. 34-35. [61] As a result, the confessions rule requires the court to scrutinize whether the accused was denied his or her right to silence: Singhat paras. 36, 37 and 39. [62] In other words, the confessions rule enhances the protection of an individual's right to silence.

The “presence of a doubt as to theexercise of the individual's free will in making the statement” will vitiate voluntariness: Singh at para. 38. [63] The Court in Singh also affirmed what was said in Hebert and Oickle about not losing sight of the balancing that is requiredbetween the twin goals informing the confessions rule – the individual's right to choose and the state interest in the investigation ofcrime. In this regard the Court wrote at paras. 45-46: [45] More importantly, Mr. Singh's proposition ignores the state interest in the effective investigation of crime.

The Court in Hebertstressed the importance of achieving a proper balance between the individual's right to choose whether to speak to the authorities andsociety's interest in uncovering the truth in crime investigations. As I stated earlier, the suspect may be the most fruitful source ofinformation. While the fact of detention unquestionably triggers the need for additional checks on police interrogation techniquesbecause of the greater vulnerability of the detainee, the moment of detention does nothing to reduce the suspect's value as an [page433]important source of information.

Provided that the detainee's rights are adequately protected, including the freedom to choose whether tospeak or not, it is in society's interest that the police attempt to tap this valuable source. The Court in Hebert said the following on thecritical importance of achieving a balance between individual and societal interests: The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balancebetween the interests of the detained individual and those of the state.

On the one hand s. 7 seeks to provide to a person involved in thejudicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power todeprive a person of life, liberty or security of person provided that it respects fundamental principles of justice.

The balance is critical.Too much emphasis on either of these purposes may bring the administration of justice into disrepute -- in the first case because the statehas improperly used its superior power against the individual, in the second because the state's legitimate interest in law enforcement has

been frustrated without proper justification. [Emphasis added; p. 180.] [46] Hebert therefore set out the parameters of the s. 7 Charter right to silence to achieve this balance. Some of the limits set out bythe Court were responsive to the particular facts in Hebert and, consequently, are only relevant to the situation where a detainee isinterrogated by an undercover officer. They need not be repeated here. Of relevance in this case are the first two limits.

I reproduce therelevant excerpts here: First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused hasretained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercoverofficers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denyingthe suspect the right to choose or depriving him of an operating mind, does not breach the right to silence. Second, it applies only after detention.

Undercover operations prior to detention do not raise the same considerations. The jurisprudencerelating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charterextend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operation prior todetention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from thegreater power of the state.

After detention, the situation is quite different; the state takes control and assumes the responsibility ofensuring that the detainee's rights are respected. [Emphasis added; p. 184.] [64] In addition to the jurisprudence relating to the general principles that I just outlined, the Crown provided three additionalauthorities where the lack of a police caution or warning was considered and principles applied – R. v. Kanhai, 2010 ONSC 2965; R. v.K.F., 2010 NSCA 45; and R. v. Bottineau, 2011 ONCA 194.

Amicus curiae relied upon certain authorities canvassed in those authorities,particularly those canvassed by the court in Kanhai, including cases such as R. v. Worrall, [2002] O.J. No. 2711 and R. v. Laidley, (ON SC), [2001], 41 C.R. (5th) 123 (Ont. S.C.) and other Ontario trial court decisions. [65] These case authorities are all, of course, factually distinguishable from the case at bar, but are of assistance for theirconsideration of general principles informing the analysis I am to undertake, because in the case at bar Mr.

Oler was not provided with acaution or warning in any of his interactions with the police. [66] In Kanhai, the accused became aware police were looking to talk to him, so he attended the police detachment to “clear hisname”. When interviewed, he was advised the purpose of the interview was to determine what, if anything, he did, what, if any,involvement he had in the murder under investigation, what knowledge he may have about the investigation or how he might help withit. He was advised of his right to counsel, was told he did not have to speak to police if he did not want to, and could leave any time heliked.

The accused provided a recorded statement. He was arrested for murder during the statement. [67] On the voluntariness voir dire, the main issue was whether the accused was a suspect at the outset of the interview and ought tohave been cautioned that anything he said to police could be used as evidence in court against him on a charge of murder.

The accusedargued that in the absence of such a caution, the purpose and consequence of his statement were not conveyed to him, rendering itinvoluntary. [68] The court found the accused was a suspect at the commencement of the interview and that the police did not give him a propercaution. Using the contextual approach required, the court concluded that despite the lack of a caution, the statement was voluntary inthose circumstances. In so concluding, the court noted several factors, including that Mr.

Kanhai was the one who approached police to“clear things up”, that he was not detained by police, that he knew the purpose and importance of the interview, that he knew it wasbeing recorded, that he had an operating mind, that police made no threats or promises, nor did they engage in any oppressive conduct ortrickery that would shock the community. With respect to the lack of a caution, the court found it was a “logical and reasonable inferencethat Mr.

Kanhai was aware that what he was telling police would have an evidentiary purpose in this investigation and what he saidcould be used by the police in evidence”: para. 138. Emphasizing a principle found throughout the jurisprudence – that the presence orabsence of a caution or warning is merely one circumstance to consider in determining voluntariness – the court was satisfied beyond areasonable doubt the statement was voluntary: paras. 156-157. [69] Mr. Doyle emphasizes certain passages from several Ontario cases cited by the court in Kanhai.

Among them, he asks me toconsider para. 108 of Kanhai, where the court discusses certain findings of Justice Watt, as he was then, in Worrall. Mr. Doyleemphasizes that Watt J. held at paras. 106-107 as follows: [106] Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them. NeitherDetective Constable Chiasson nor Detective Scott told Joseph Worrall (after this disclosure) that what he said could be used in hisprosecution for an offence arising out of his conduct in connection with the death of Brendan Carlin.

This informational deficit assumesan added importance when there is factored in the implicit suggestion that the identification process must await the interview of JosephWorrall. [107] In the result, I am simply not satisfied in all the circumstances that Crown counsel has proven beyond a reasonable doubt that theremarks and interview that took place after this disclosure to Detective Constable Chiasson were voluntary. They are inadmissible on thatbasis in these proceedings. [70] In order that I might understand the context of Justice Watt's findings and conclusions, I obtained a copy of this case.

The factsin the case are these: Mr. Worrall's step-brother was found dead on a city street in the middle of the afternoon on January 2. There wereno signs of foul play. Police were called. After a few hours, police had a good idea of who the deceased might be and came to learn thathe lived with his step-brother. Police went to the deceased's home, or what they believed to be his home, looking to confirm thedeceased’s identity. At that point, police had no reason to suspect the deceased was a victim of foul play or to suspect that the accusedhad anything to do with his demise. [71] Mr.

Worrall was at home when police arrived. They confirmed some of the deceased's identifying features. They told Mr.

Worrall they were investigating a suspicious death and believed the victim might be his brother. They told Mr. Worrall they would like him to come with them to the police station, as they needed “some help” and believed that he “may have the answers”. The accused asked if they wanted him to identify the body, and he was told that right now police were “just looking for information”. The accused told police he had taken an anti-depressant prior to their arrival, and he appeared to police to be hung over. [ 72 ] When they arrived at the detachment, the police had no reason to suspect Mr.

Worrall had been involved in his step-brother's death. They did not even know the cause of death at that point. Mr. Worrall and one of the officers stood at a smoking area outside the detachment soon after they arrived. In a conversation initiated by the accused, the accused discussed that he and the deceased had been “doing heroin”, that he had given it to him, and other information along those lines. They went inside and the accused indicated he wanted to speak with his mother before he spoke with police.

He spoke to her briefly on the phone and then waited for her to arrive at the detachment. [ 73 ] While waiting, Mr. Worrall gave the officers with a map showing the area where he and the deceased had obtained the heroin they consumed. His mother arrived and spoke to the officer. She was told it was important the accused tell police everything to help out their investigation of his step-brother's death. She then met with Mr. Worrall alone, for about 10 or 15 minutes.

She pointed out the serious nature of the investigation, told her son to tell the police everything about what had happened, including the name of the drug dealer, and she told him that it was necessary that he provide this statement before they could go to the morgue. She said the accused was coherent during this conversation, but distraught. [ 74 ] After this conversation with his mother, the accused, still in his mother’s presence, said he was ready to talk to police. She left and Mr. Worrall then gave a video-recorded statement that lasted about 45 minutes.

The purpose of the interview was explained – to establish the movements of the deceased from New Year's Eve until the accused last saw him. Near the outset of the interview, the accused admitted that he administered heroin to the deceased on New Year's Eve. [ 75 ] On the voir dire , the accused's admissions about administering the heroin to the deceased were canvassed.

One officer testified that this information was first mentioned early in the video-recorded statement, but another officer believed the accused had said something to him about this before the recorded interview, when the accused had been earlier speaking with his mom on the phone. Despite the accused's early admissions, no caution was given to him. [ 76 ] Shortly after the interview the accused went to the morgue with his mother and the deceased's father. The deceased was positively identified.

The accused was driven home. [ 77 ] Approximately a month later, the toxicology report pertaining to samples taken from the autopsy was received, indicating the drugs in the deceased's system and what caused him to die. The accused was arrested several days later. [ 78 ] At issue, then, was whether what Mr. Worrall said to investigators before and during his formal interview were admissible at his trial for manslaughter in connection with the death of his step-brother. [ 79 ] Mr. Worrall testified on the voir dire .

He gave evidence that he had injected heroin twice, on January 1 and then again at 3:00 a.m. on January 2. He said he was not sober when police arrived at his home that day. He had also taken sleeping pills. He said he was startled to see the police officers in his apartment. He did not invite them or let them in. He wanted to go to the morgue to see whether the deceased was, in fact, his step-brother, but the officers declined this request in favour of speaking to him first. [ 80 ] Mr.

Worrall testified that he was intimidated by what he viewed as a forceful police request, and felt he had to go to the police station with them. He acknowledged that he wanted to speak to police and tell them the truth, but said that he went to the police station because he did not think he had a choice not to go. He said his mother persuaded him to give the video-recorded statement.

He said he felt he had no choice but to speak to police; they wanted to get it done so that they could go to the morgue to identify the body. [ 81 ] It is within this factual matrix that the court concluded that up to the point the accused volunteered information that implicated him in the death of his brother (that he and the deceased had been using heroin shortly before the last time the accused saw the deceased, he gave the deceased heroin and thought he may have given him too much, that the deceased was really “mashed” on ecstasy and too much booze at the time the accused gave him the heroin, that the accused knew the heroin suppressed the lungs and the deceased was a bad asthmatic, and he thought he should have stayed with the deceased), police had no reason to caution the accused.

However, upon receipt of this information, the court concluded that any reasonably competent investigator would have been alerted to the prospect that his brother’s death may have been associated with the consumption of heroin provided by Mr. Worrall. The court noted that “[s]upplying heroin to another is trafficking in heroin, an unlawful act”: para. 104. [ 82 ] Despite this admission, police did not caution or warn the accused that anything he said could be used in evidence or that he was not required to answer police questions.

They continued their interview, in which the accused continued to implicate himself in the death of his brother. [ 83 ] It was within this context, where police led the accused to believe he was a witness in no jeopardy, and that identifying his brother's body in the morgue must await his interview, that the court concluded the informational deficit of the lack of a caution rendered the video-recorded statement involuntary. [ 84 ] Not much was said on this topic in submissions, but I should address it. As Mr.

Oler’s conduct and remarks at issue in the voir dire were not recorded, I will say a brief word about the law in this area. [ 85 ] Madam Justice Fisher reviewed the jurisprudence fairly recently in this area in R. v. McKinnon , . I agree with her review and I adopt her conclusions, set out at paras. 83-87: Failure to record – legal principles [83] There is no absolute rule requiring police to record statements, as was recognized in Oickle , but there is no question that recorded

statements assist the court in assessing whether a statement has been made voluntarily. In Oickle, Iacobucci J. discussed the benefits ofvideotaping, quoting at para. 46 from an

article by W.S. White, "False Confessions and the Constitution: Safeguards AgainstUntrustworthy Confessions": First, it provides a means by which courts can monitor interrogation practices and thereby enforce the other safeguards. Second, it detersthe police from employing interrogation methods likely to lead to untrustworthy confessions. Third, it enables courts to make moreinformed judgments about whether interrogation practices were likely to lead to an untrustworthy confession.

Finally, mandating thissafeguard accords with sound public policy because the safeguard will have additional salutary effects besides reducing untrustworthyconfessions, including more net benefits for law enforcement. [84] The court did not suggest that non-recorded interrogations are inherently suspect but made the obvious point that a recording"can greatly assist the trier of fact in assessing the confession" (at para. 46). [85] In R. v. Moore-McFarlane (2001), (ON CA), 56 O.R. (3d) 737 (Ont.

C.A.), the Ontario Court of Appealaddressed the failure to record in circumstances that raised serious concerns about the sufficiency of the evidence of the interactionbetween two accused and the police. In that case there was, among other things, conflicting evidence in the voir dire about thecircumstances of the interrogations that raised issues of oppression. Charron J. (as she then was) held as follows at paragraph 65: ... the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police.

That onus may bereadily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recordingfacilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of areliable record, the context inevitably makes the resulting non-recorded interrogation suspect.

In such cases, it will be a matter for thetrial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided tosatisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. [86] It is clear that the failure to record a formal police interview without good reason may raise suspicions and make it more difficultfor the Crown to meet its onus of establishing a sufficient record of the interactions between the police and an accused. However, in allcases, it is a question of fact whether suspicion is warranted: see R. v.

Quinn, 2009 BCCA 267 at para. 96; R. v. Crockett, 2002 BCCA658; and R. v. White (2003), (ON CA), 65 O.R. (3d) 97 (Ont. C.A.). [87] Where the confession itself is recorded, the failure to record some of the police interactions leading up to it does not in itselfadversely affect the issue of voluntariness. Rather, this admission must alert the trier of fact to carefully scrutinize the evidence of theinteraction between the police and the accused as well as the explanation for not recording that interaction: R. v. Fraser, 2011 ONCA238 at para. 5. POSITION OF THE PARTIES [86] I am indebted to Mr. Wilson and Mr.

Doyle for their submissions, which have most helpfully identified the central issues at playin this admissibility inquiry. My attempt to summarize those submissions will not, I fear, do them justice. [87] The Crown submits it has proven Mr. Oler's remarks and conduct on October 5, 2005 and January 26, 2006, voluntary beyond areasonable doubt. Mr. Wilson emphasizes that at the time, police were investigating Mr. Oler for sexual exploitation offences. They toldhim this. They asked for his assistance in producing his wives in order to facilitate interviews of them to assist in their investigation.

Mr.Oler told police about three women and he produced them for interviews. This was not an interview or an interrogation of a suspect, adetainee, or a person under arrest, as considered in much of the jurisprudence. Police were investigating another crime. Mr. Oler was asuspect, but investigators were not attempting to elicit any evidence from him. They were simply asking for his help in producingpersons they wished to interview. In these circumstances, Mr. Wilson argues there was no reason for police to video or audio record theirinteractions with Mr.

Oler. [88] It is within this context that the Crown argues that Mr. Oler's decision to assist police and provide the information he did wasthe product of a free and meaningful choice, not prompted or elicited by any of the concerns identified in the jurisprudence that mighthave caused his will to be overborne. Mr. Wilson emphasizes that there were no threats or inducements, no oppression, and no policetrickery. [89] With respect to the absence of a caution, the Crown submits this factor, considered in context, should not create any reasonabledoubt that Mr.

Oler's remarks and conduct were the product of a free choice. Moreover, Mr. Wilson argues that not only was Mr. Oler'schoice a free one, it was a careful and self-interested one. Mr. Oler was advised he was the subject of an investigation into sexualexploitation of persons under the age of 18 by a person in authority. When asked to facilitate interviews, Mr. Oler chose to produce threewomen, all of whom would exculpate him, as they were 18 or 19 years old when married. [90] The Crown points to marriage and personal records admitted in this trial that, on their face, demonstrate that Mr.

Oler may havehad more than three wives he identified to police. According to the records, the two women he did not identify to police would have beenunder the age of 18 at the time they were said to have been married to Mr. Oler. [91] As well, the Crown submits that a reasonable inference can be drawn from the facts adduced that Mr. Oler was aware of theright to silence and that anything said could have an evidentiary purpose.

Overall, the Crown submits there are no circumstances thatcreate a reasonable doubt as to voluntariness. [92] Amicus curiae submits the Crown has not proven voluntariness to the requisite standard in this case. Mr. Doyle emphasizes thatvoluntariness is a complex of values that include respect for the individual's freedom of will, the need for law enforcement officersthemselves to obey the law, and the overall fairness of the criminal justice system.

[ 93 ] Mr. Doyle does not take issue with the police conduct in the sense that they did anything oppressive or made any threats or promises or engaged in any impermissible trickery. Rather, he primarily submits that the absence of a caution in the circumstances of this case is a significant deficit that vitiates voluntariness. He says that Mr. Oler was asked to produce his wives for the purpose of police interviews on a matter other than the subject matter of this trial. The request was made to save investigators time and the need to spend time in the community tracking those witnesses down. Mr.

Doyle argues that to then use this cooperation, without Mr. Oler being aware at the time about what all could be at stake, does not respect his freedom to meaningfully choose to speak to police, nor does it respect the overall fairness of the criminal justice system. He says that in these circumstances, Mr. Oler was deprived of a meaningful choice to assist police or not. [ 94 ] Mr. Doyle further submits the court ought not to draw the inferences the Crown seeks. He urges the court not to take a “cynical view” of Mr. Oler's cooperation that he only produced wives that would exculpate him.

He too points to the marriage and personal records adduced at trial and emphasizes that if those documents can ultimately be said to be reliable, they support an inference that Mr. Oler told police the truth about the three women presented. [ 95 ] Mr. Doyle also argues that an inference should not be drawn that Mr. Oler knew of his right to silence simply because the women he produced were aware of theirs.

In other words, that his alleged wives, who were adults at the time, were aware of the right to silence is not indicative of his awareness and, in at least one case, one wife was informed of her right not to answer questions before declining to answer any questions. Overall, Mr. Doyle argues that the court should, in these circumstances, have a reasonable doubt about the voluntariness of Mr. Oler's words and actions at issue in this voir dire .

ANALYSIS [ 96 ] The authorities referred to by counsel all involve the typical voluntariness analysis scenario; that is, police investigating a particular crime and interviewing or interrogating a suspect or a detained/arrested person about that crime. This voir dire involves a rather unique scenario where police were not interrogating or interviewing a suspect. They were making inquiries of a suspect, Mr. Oler, in respect of an investigation into the offence of sexual exploitation, and seeking his assistance in arranging interviews.

They were not gathering evidence or investigating the offence before the court; that is, the offence of polygamy. [ 97 ] That Mr. Oler was suspected of an offence under s. 153 of the Code at that time was not hidden from him; in fact, quite the opposite. Chief Superintendent Fisher contacted Mr. Oler personally on October 4, 2005 to advise him of the investigation into sexual exploitation and to seek his assistance in facilitating interviews with persons who might be potential victims or have other relevant information to provide, his wives.

Police took this step to save time, but also to minimize the disruption their trying to locate these persons could cause in this small community. Mr. Oler was again advised of the nature of the investigation and asked for his assistance the following day by Constable Shaigec. [ 98 ] Although considered a suspect in that offence (sexual exploitation), at no time was Mr. Oler detained or arrested. Police were not interviewing or interrogating him with respect to those alleged offences on October 4, 5, 2005, or January 26, 2006.

Rather, they were asking for his help in facilitating interviews. [ 99 ] None of the concerning factors identified in Oickle are present in this case. [ 100 ] First, there is nothing to suggest that Mr. Oler did not have an operating mind during the times he dealt with the police. This factor is concerned, of course, with the reliability of the statements made and the accused's capacity to choose whether to speak to a person in authority. I am well satisfied Mr. Oler had that capacity. [ 101 ] Second, no threats or promises were made or given to Mr. Oler. I do not view the motivations of police in asking Mr.

Oler for help and arranging interviews as holding out any sort of promise or inducement to Mr. Oler. I accept that such arrangements would benefit the community and its members by minimizing police presence in the community, but this benefit to the community was not something investigators held out to Mr. Oler. There was certainly no quid pro quo offered by police. [ 102 ] Third, there was no atmosphere of oppression in any of Mr. Oler's dealings with police. Again, quite the opposite. Investigators treated Mr. Oler and his wives with honesty and respect. This was not a formal interview of Mr.

Oler where he was within the control of the police. Their dealings with Mr. Oler were brief and were only for their stated purpose. Mr. Oler was in control of whether he would produce these persons for interviews. He was in control of when, where, and how those persons would be produced. [ 103 ] Fourth, police conduct in this case was above reproach. They were not engaged in any trickery, impermissible or otherwise. They were speaking to Mr. Oler as part of their investigative duties.

They were up front and completely transparent in their dealings with him. [ 104 ] I am also satisfied the lack of recording does not impact on my assessment of voluntariness. The officers' recollections that have been accepted, as aided by their contemporaneous notes, are reliable. The police had no good reason to record their interactions with Mr. Oler. Mr. Oler was neither detained nor arrested. Police were asking him questions to assist in arranging interviews, as they are entitled to do with any person who may have information to provide.

Video or audio recording of such inquiries would be impractical and unnecessary. There was nothing untoward or suspicious in their failure to record in these circumstances. [ 105 ] Further, I am satisfied that the absence of a caution in these circumstances does not create a reasonable doubt that Mr. Oler was deprived of his right to make a meaningful choice whether or not to speak to authorities. [ 106 ] The lack of a caution is only one factor to be considered in the contextual voluntariness analysis. Mr. Oler was informed of the purpose of the request made by police. He was not detained at any time.

He was not interrogated or interviewed. Mr. Oler was told what he was being investigated for and what he was being asked to assist with. He was not deprived of any critical information in the possession or knowledge of the police.

[ 107 ] I agree with the Crown that it is a logical and reasonable inference to draw on the evidence that Mr. Oler was aware of the right not to speak to police and that what was said could be used for an evidentiary purpose. I also agree that when Mr. Oler first spoke to Constable Shaigec, and then when he produced the three women for interviews, he not only made a free choice to do so, he made a careful and considered choice. [ 108 ] Mr.

Oler was not caught by surprise by Constable Shaigec's telephone call and request, having been advised by Chief Superintendent Fisher, the day before, of the police investigation and that Constable Shaigec would be calling him and why. Constable Shaigec left a message for Mr. Oler. Mr. Oler called him back the next day and was again advised of the purpose of the call. Mr. Oler had time to consider the request first made by Chief Superintendent Fisher the previous day. He then chose to provide information that was exculpatory. He told Constable Shaigec he had one legal wife, Ms. Oler.

He then discussed two others and indicated they were both 18 or 19 when he married them. In other words, he offered information that put him outside the parameters of the s. 153 investigation. [ 109 ] To support that exculpatory information, Mr. Oler facilitated the interviews of those three women. When, where, and how he produced them to police was controlled by Mr. Oler. Mr. Oler was told by Constable Shaigec on October 5, 2005, that his wives had a choice as to whether they would speak to police. Mr. Oler produced Ms. Quinton on January 26, 2006.

He told the officers that he brought her with him so she could tell the police on behalf of all three of the women that his wives did not wish to speak to police. The logical and reasonable inference to draw from all of this evidence and these remarks is that Mr. Oler was aware of an individual's right to choose to speak with police or not. [ 110 ] He later produced the other two women, who indeed refused to answer questions other than their names, dates of birth, and citizenship. Their dates of birth made it clear they were not under 18 at the time they were said to have been married to Mr.

Oler. [ 111 ] In conducting this contextual analysis, I am mindful of the twin goals of the confessions rule, protecting the rights of the accused and fairness in the criminal process without unduly limiting society's need to investigate and solve crimes. Police were investigating a serious complaint of sexual exploitation of a person under the age of 18 by a person in a position of authority. They were entitled to make inquiries in legitimate aid to this investigation. [ 112 ] The evidence proves beyond a reasonable doubt that Mr. Oler made a free and meaningful choice.

None of the police conduct, including the lack of a caution, had the effect, I am satisfied, of overcoming Mr. Oler's freedom of will in these circumstances. [ 113 ] In the end, I am satisfied beyond a reasonable doubt that the Crown has proven Mr. Oler's verbal admissions and admissions by conduct on October 5, 2005, and January 26, 2006, are voluntary. “S.A. Donegan J.” DONEGAN J.