R. v. Neurauter Date:, 2017 BCPC 409

Citation: R. v. Neurauter Date: 20171005 2017 BCPC 409 File No: 102234-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CONNOR MATHEW JAMES NEURAUTER PUBLICATION BAN S. 486.4(2) OF THE CRIMINAL CODE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Crown: Mr. Don Mann Counsel for the Accused: Mr. Sheldon Tate Place of Hearing: Kamloops , B.C. Dates of Hearing: May 24, 25, 26 and July 25, 2017 Date of Judgment: October 5, 2017 [ 1 ] The accused, Connor Mathew James Neurauter, provided a statement to Cst. Gendron-Fafard following his arrest for sexual

interference. The Crown submits that it has proven that the statement was freely and voluntarily given according to law. The principles regarding the admissibility of statements at common law are set out in the leading case of R. v. Oickle , 2008 SCC 38 and in the more recent decision of R. v. Heatley , 2015 BCCA 350 . [ 2 ] Counsel for the accused asserts that there was an implied inducement provided by police to the effect that if the accused provided a statement to police he would be released in time to go to his sister’s hockey game.

The accused also submits that the officer threatened the accused that if he spoke to a lawyer he would be held in custody for 48 hours, with the further implication that he would not see his sister’s hockey game. The accused maintains that taken together, the circumstances in which the statement was given were threatening, oppressive or carried sufficient inducements that the court should be left with a reasonable doubt as to the voluntariness of the statement. Cst. Gendron-Fafard [ 3 ] Cst. Gendron-Fafard gave evidence that he is a member of the RCMP and has been so for ten years.

On March 30, 2016, he was working at the Kamloops City Detachment as a general duty officer when he was tasked with taking a counter complaint from L.D. and her 14 year old daughter, I.K. [ 4 ] The complaint received by the constable was to the effect that the accused, Mr. Neurauter, 18, had engaged in sexual interference with a 13 year old friend of I.K.’s, M.B. It was reported to the officer that M.B. had sent images of herself unclothed to Mr.

Neurauter who, it was alleged, had demanded further sexual interaction with M.B. under threat of exposing these images of her. [ 5 ] In an effort to help her friend, I.K. was said to have sent Mr. Neurauter similar images of herself. Cst. Gendron-Fafard also spoke to M.B. and her mother later the same day. M.B. alleged there were three sexual encounters with the accused while she was 13 years of age and that she had sent pictures of her breasts to him via Snapchat. Conversations between them were described as being had through Facebook, Snapchat and text message. Mr. Neurauter’s mobile number was provided to Cst.

Gendron-Fafard. [ 6 ] After consulting with his RCMP supervisor, the constable formed the view that he had reasonable grounds to arrest Mr. Neurauter for committing the Criminal Code offence of sexual interference in relation to M.B. The officer had concerns that there might be further contacts and other complainants unknown to him, and that images may have been shared over the internet, which might constitute child pornography. It was his intention to arrest Mr.

Neurauter for sexual interference, obtain a warned statement if he could and release the accused on a police undertaking to have no contact with the two girls. He did not consider that he had reasonable grounds to arrest the accused at that time for possession of child pornography. [ 7 ] Cst. Gendron-Fafard arranged for a second officer, Cst. Dzaman, to assist in the arrest. They drove in separate police vehicles to Mr. Neurauter’s residence. Both constables were dressed in working uniform. [ 8 ] On arriving at 5:56 p.m. Cst. Gendron-Fafard knocked on the front door to the house. He recalled that Mr.

Neurauter answered the door. He said he asked Mr. Neurauter to step outside and when the accused had done so Cst. Gendron-Fafard advised him that he was under arrest for sexual interference. The accused was compliant but asked what the offence was and why he was under arrest. The constable told him again he was under arrest for sexual interference. [ 9 ] Cst. Gendron-Fafard said there were two other persons in the house, a metre or two away, whom he took to be the accused’s mother and sister. The accused’s mother asked a question to the effect “What’s this about?” Cst. Gendron-Fafard said in evidence that as Mr.

Neurauter was an adult, he was not prepared to go into further detail respecting the alleged offence or the names of the complainants with family members present. [ 10 ] Cst. Gendron-Fafard recalled that Mr. Neurauter said that he wanted to go to his sister’s hockey game later that evening. The constable advised that he told the accused that he needed to come back to the detachment and that once they were done, Mr. Neurauter would be free to go. [ 11 ] The constable said that before departing, Mr. Neurauter wanted to go to his bedroom to obtain his effects. Mr.

Neurauter was allowed to go to his bedroom with the constable following a metre or two behind him. Cst. Gendron-Fafard either could not see or could not recall what those retrieved effects were. Cst. Gendron-Fafard did not have any recall of asking or directing Mr. Neurauter to bring his cell phone with him but ultimately allowed that it was possible that he may have done so. Cst. Dzaman remained at the front door with the accused’s mother and sister and had no dealings with the accused. [ 12 ] Neither officer made any detailed notes of the events which took place at the front door, though Cst.

Gendron-Fafard took notes of the exchange with the accused regarding his s. 10 Charter rights. [ 13 ] After leaving his home, Mr. Neurauter was taken to Cst. Gendron-Fafard’s police car and was placed in the rear driver’s side seat. At 5:59 p.m. the constable sat in the driver’s seat and read the accused his s. 10 Charter rights from a prepared card. Mr. Neurauter was advised he was arrested for sexual interference. He was also advised in standard form of his s. 10(

b) right to retain and instruct counsel without delay and was advised of the availability of duty counsel and legal aid. [ 14 ] Cst. Gendron-Fafard said he read from the card the following: I am arresting for you for sexual interference It is my duty to inform you that you have the right to retain and instruct counsel in private without delay. You may call any lawyer you want. There is a 24 hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and a lawyer can explain the Legal Aid plan to you.

If you wish to contact a Legal Aid duty lawyer, I can provide you with a telephone number. Do you understand? [ 15 ] In confirming with Mr. Neurauter that he understood the s. 10(

b) component of his Charter rights, the officer said he saw that

the accused had his head down and that there was a glow coming from the accused’s lap. The officer went to the driver’s side passenger door and saw that Mr. Neurauter was operating his cell phone. [ 16 ] At 6:00 p.m. Cst. Gendron-Fafard asked for the device, immediately powered it down and secured it in a police exhibit bag. The constable said the seizure was incidental to arrest. He was aware that the mobile device could contain a record of conversations between the accused and the complainants relating to the sexual interference alleged.

He thought it might also contain images relevant to the investigation of Mr. Neurauter for possession of child pornography. [ 17 ] Cst. Gendron-Fafard wanted to preserve any such evidence and was concerned that the mobile device might be wiped either while in Mr. Neurauter’s immediate possession or remotely later on. The officer was aware that a search warrant would have to be obtained before the contents of the device could be examined. A search warrant for examination of the phone was later sought and issued. [ 18 ] After securing the cell phone, Cst.

Gendron-Fafard returned to the driver’s seat and continued the s. 10 (

b) Charter process. He asked Mr. Neurauter whether he wanted to call a lawyer. The officer noted the accused’s response verbatim: “I just wanna hurry up you did this in. No, I don’t want one.” [ 19 ] In cross examination, it was put to Cst. Gendron-Fafard that he had told Mr. Neurauter that, he would be detained for 48 hours if he requested to speak with a lawyer. Cst. Gendron-Fafard flatly denied saying that and stated that he knew of no legal basis for detaining an arrestee beyond 24 hours without taking an accused person before a justice. Cst. Gendron-Fafard said his plan was to release Mr.

Neurauter on a police undertaking after giving him an opportunity to provide a statement. [ 20 ] Cst. Gendron-Fafard gave evidence that after Mr. Neurauter refused a lawyer, he provided Mr. Neurauter with the official warning or police caution in its usual form: You are not obliged to say anything but anything you do say may be given in evidence. [ 21 ] The accused was asked if he understood this and he replied that he did. [ 22 ] Mr. Neurauter was then driven to the detachment by the constable. The constable recalled that during that drive there was a short conversation with Mr.

Neurauter in which the accused stated that he wanted to attend his sister’s hockey game. The constable said he replied to the effect that they would try and make that work. Cst. Gendron-Fafard could not recall if the game time was mentioned. [ 23 ] On arrival at the detachment, most of Mr. Neurauter’s dealings with Cst. Gendron-Fafard were digitally recorded. A cautioned statement was given by the accused to the officer. An audio-visual recording of that statement was exhibited on the voir dire along with a transcript of the statement. Cst. Dzaman [ 24 ] Cst. Dzaman gave evidence that he and Cst.

Gendron-Fafard walked up to the accused’s house and knocked at the door. He did not recall who answered the door but the accused, his sister and his mother were all at the door. Cst. Daman recalled that Cst. Gendron- Fafard asked to speak with the accused and then asked the accused if he would step out of the residence to speak to him. Mr. Neurauter did so. [ 25 ] Cst. Dzaman described being at the door and said he was at the threshold of the door and might have been slightly inside it. He said he spoke to Mr. Neurauter’s mother and sister but kept a clear view of Mr. Neurauter and Cst.

Gendron-Fafard who were outside. He could not recall what was said between them but understood his colleague was arresting the accused. Cst. Dzaman could not say whether the accused re-entered the residence after that. Connor Neurauter [ 26 ] The accused elected to give evidence on the voir dire and described himself as a 20 year old chemistry student at the University of Calgary. Mr.

Neurauter said that there was a knock on the door of his home and his mother advised him that there were police officers at the door who wanted to speak to him. [ 27 ] At the door, he said the officers told him he was being investigated or arrested for sexual interference. Mr. Neurauter was not sure which. He said he was in the foyer at this point and was not asked to step outside by the officers. His sister and mother were present. Mr. Neurauter said he didn’t understand the nature of that charge and asked the officers what it was about. [ 28 ] Mr.

Neurauter said that the officers explained that they needed him to come with them to the detachment downtown to answer some questions. He put his footwear on and one of the officers asked him if he was ready to go. Mr. Neurauter said he thought so, but said that the officer shook his head and told him he would need his wallet and his cell phone. Mr. Neurauter said he took this as a command and went to his bedroom to retrieve both. [ 29 ] Mr. Neurauter said he went with one officer from the house, clearly Cst. Gendron-Fafard, and was placed handcuffed in the rear of the police vehicle. As Mr.

Neurauter recalled it, the constable asked him if he understood he was being charged with an offence. [ 30 ] The accused said that at this point he was trying to text his mother who had asked him to call or text her “as soon as it was humanly possible”, though he was still sitting in the parked police vehicle and had only been shortly gone from her presence. Cst. Gendron-Fafard exited the front seat, opened the rear driver’s side door and took the cell phone from Mr. Neurauter’s hands. The constable returned to the driver’s seat and informed Mr. Neurauter of his right to counsel.

The accused said he then asked the officer whether legal counsel would “expediate” the process of getting himself to his sister’s hockey game. He said that Cst. Gendron-Fafard told him that if he contacted counsel he would be detained for 48 hours.

[ 31 ] Mr. Neurauter said in evidence that he didn’t want to be away from his family for such a lengthy period and he informed the constable that he would not like to speak to a lawyer at that time. [ 32 ] In cross examination, Mr. Neurauter said he was not sure what time the game started or where it was being played. Mr. Neurauter was then asked the following: Q So how were you expecting to find those things out after you left that residence? A Well, that is actually why I took my cell phone, Your Honour. Q That was why you took the cellphone. A Or partially, yeah. I mean, I needed it for several reasons.

Q So really it was your idea to take the cellphone. A I would disagree. I was ordered to retrieve the cellphone by a police officer, Your Honour. Susan Neurauter [ 33 ] Susan Neurauter, the mother of Mr. Neurauter, gave evidence. She said that her daughter Ashley Neurauter answered the door. Two policemen were there asking to speak to Mr. Neurauter. They were invited in and came into the entranceway. The door was closed behind them. The officers asked to speak to Mr. Neurauter. Susan Neurauter went to the dining room to tell Mr. Neurauter that the police wanted to talk to him. [ 34 ] Mr.

Neurauter attended to the front door and was told by one of the officers that he would need Mr. Neurauter to come downtown to answer some questions. Susan Neurauter said this was the first thing said to her son by police. The officers were asked by Mr. Neurauter’s girlfriend what this was about and the second officer said Mr. Neurauter was being charged with sexual interference. Susan Neurauter said that they did not say to Mr. Neurauter that he was under arrest.

She was certain as to the use of those words more than a year after the event and without the benefit of any notes. [ 35 ] Susan Neurauter recalled that her son was pulling his boots on and was asked by the officer if he was all set. Mr. Neurauter said he was. The officer asked him if he had everything he needed. Mr. Neurauter said he thought so. The officer said, “You’re going to need your wallet and phone.” Mr. Neurauter went to get them, she said. She did not see her son with the items but assumed he had retrieved them.

The police did not ask her son to step outside until they were leaving the house. [ 36 ] In cross examination, Susan Neurauter said her recollection as to the words spoken were very, very clear. She thought it was not possible that the officer had followed Mr. Neurauter when he went to retrieve the items. [ 37 ] While Mr. Neurauter was gone, Susan Neurauter recalled, Ashley Neurauter asked the second officer how long he thought this would take as she really wanted her brother at her hockey game which started at 7:45 pm.

That officer said he was sorry, he didn’t know. [ 38 ] Susan Neurauter explained in court that this was a championship game of importance to Ashley Neurauter and to the family. She also said that before her son left with police, she asked him to keep her informed by text message or phone. Susan Neurauter gave evidence that she next saw her son at her daughter’s hockey game during the game. Ashley Neurauter [ 39 ] Ashley Neurauter, Mr. Neurauter’s sister, gave evidence that she answered the knock on the door by the police officers. Her mother was right behind her. The officers asked if they could see Mr.

Neurauter. When Mr. Neurauter arrived at the door the officers told him that he was being charged with sexual interference and that he would have to come with them. Mr. Neurauter was asked if he was ready to go and he said he was. [ 40 ] She said the officers asked him “to go get his phone and his wallet.” Mr. Neurauter went into the basement and out of sight. Ashley Neurauter recalled that the two officers remained with her when Mr. Neurauter went into the home. She said she asked one of the officers how long this would take because she was in a pretty big game and she wanted her brother to see it.

The officer said he didn’t know but wished her luck. [ 41 ] Mr. Neurauter returned, she said, and the officers again asked him if he was ready to go. He said, “Yes,” and the officers took him out. Ashley Neurauter said that the officers did not ask Mr. Neurauter to step from the house to speak with him prior to their departure with him. The Statement [ 42 ] Cst. Gendron-Fafard took Mr. Neurauter to the Kamloops RCMP detachment. Most of Mr. Neurauter’s dealings with Cst. Gendron-Fafard there were audio or audio-video recorded and were unremarkable.

A cautioned statement was given by the accused. [ 43 ] That statement was low-key and conversational throughout. It was not prolonged, harsh or aggressive. [ 44 ] At the start of the statement, Mr. Neurauter confirmed that he had said earlier that he did not want to speak with a lawyer. Mr. Neurauter was then invited to let Cst. Gendron-Fafard know if he changed his mind at any point and a consultation would be arranged. The constable also confirmed on the record that Mr. Neurauter did not have to say anything, that everything was being recorded and that Mr.

Neurauter understood that anything he said could be used against him in court. [ 45 ] Mr. Neurauter also stated, in response to the constable’s questions, that he had not been promised anything by Cst. Gendron-

Fafard or any police officer he had encountered that day, nor had he been threatened. [46] Cst. Gendron-Fafard informed the accused that the complaint against him involved three counts of sexual interference againstM.B. [47] The exhibited transcript of Mr. Neurauter’s statement is a generally accurate reflection of the words spoken and recorded duringthe statement. [48] At page 8 of 49 of that transcript, at lines 218 through 237, the following exchange appears: LGF: Um as far as the complaint against you… CN: Yeah. LGF: …okay. I want to get your side of the story. CN: Mm-hmm LGF: That’s why I brought you here.

CN: Yeah. LGF: This…and obviously there’s been communication. I know it happened, right? CN: Yeah. LGF: I’ve seen it. Um so, I would really like you to be honest… CN: Yeah. Yeah. For sure. LGF: …’cause um basically it’s gonna look the best for you, right? CN: Yeah. LGF: You understand that? CN: Yeah The Common Law Confessions Rule [49] The burden lies upon the Crown to prove beyond a reasonable doubt the voluntariness of any statement given to a person inauthority by an accused. Justice Iacobucci, writing for the majority of the Supreme Court of Canada in R.v.

Oickle, stated at paragraph 47regarding the common law confessions rule, that: 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. [50] He went on to outline four areas of concern which may arise to bring into doubt the voluntariness or reliability of an accused’sstatement to persons in authority: 1) threats or promises also referred to as “fear of prejudice or hope of advantage”; 2) oppression; 3) therequirement for an operating mind; and 4) police trickery that would shock the community. [51] Overt threats and inducements by persons in authority will be frequently be easier to recognize than some others. At paragraph53 of R. v.

Oickle, Justice Iacobucci adverted to the more subtle or veiled threats that may be used against suspects. He referred tocommentary by the Honourable Fred Kaufman in the third edition of The Admissibility of Confessions (1979) at p. 230: Threats come in all shapes and sizes. Among the most common are words to the effect that "it would be better" to tell, implying therebythat dire consequences might flow from a refusal to talk. Maule J. recognized this fact, and said that "there can be no doubt that suchwords, if spoken by a competent person, have been held to exclude a confession at least 500 times" (R. v.

Garner (1848), 3 Cox C.C.175, at p. 177). [52] Courts in more recent times have also excluded confessions in response to the use of such phrases by police, but there is no ruleof automatic exclusion. As Justice Iacobucci stated at paragraph 54, the trial judge must examine the entire context of the confession, andask whether there is a reasonable doubt that the resulting confession was involuntary. [53] Justice Iacobucci, at paragraph 55 of Oickle, quoted the Chief Justice of Manitoba in R. v. Puffer (1976), (MB CA), 31 C.C.C. (2nd) 81. There, Freedman C.J.M. referred to a passage from an

article he had written earlier, "Admissions andConfessions", published in Salhany and Carter, eds., Studies in Canadian Criminal Evidence (1972), at pp. 110-11, where he stated thefollowing: Risky though it be for a policeman to use words like "better tell us everything"-- and an experienced and conscientious officer will shunthem like the plague -- their consequences will not always be fatal. There have been some instances where words of that type have beenemployed, and yet a confession following thereon has been admitted.

That may occur when the court is satisfied that the offendingwords, potentially perilous though they be, did not in fact induce the accused to speak. In other words, he would have confessed in anyevent, the court's enquiry on the point establishing that his statement was indeed voluntarily made. It is scarcely necessary to emphasize,

however, that cases of the kind just mentioned will confront a prosecuting counsel with special difficulty. For words like "better tell the truth" carry the mark of an inducement on their very face, and a resultant confession may well find itself battling against the stream. [ 54 ] Justice Iacobucci agreed that "it would be better" comments require exclusion only where the circumstances reveal an implicit threat or promise, or leave a reasonable doubt. [ 55 ] R. v. Oickle also canvassed the importance of oppression in the determination of voluntariness.

At paragraph 58 of that decision we find the following: Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions.

Alternately, oppressive circumstances could overbear the suspect's will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession. [ 56 ] At paragraph 60, Justice Iacobucci stated: Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time. [ 57 ] Justice Iacobucci added to this the use of false evidence which can be crucial in convincing the suspect that protestations of innocence, even if true, are futile.

This can be a “dangerous ploy” and along with other factors may be a relevant consideration in determining on a voir dire whether a confession was voluntarily given. [ 58 ] At paragraph 68, Justice Iacobucci summarised the principles to be considered in determining the voluntariness of a statement: While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple.

First of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession 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 intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it.

Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision. Objections to Admissibility [ 59 ] The defence submits that the evidence on the voir dire raises a reasonable doubt as to the voluntariness of the statement given by the accused to police. [ 60 ] The first point submitted is that there was an “implicit quid pro quo ,” an understanding between Cst.

Gendron-Fafard and the accused, that if the accused cooperated in providing a statement, he would be released in time to attend his sister’s hockey game. The officer stated that he had advised the accused that he would be free to go to the game once they were done. Mr. Neurauter said in evidence that the police “had never outright stated to me that I was going to be able to attend or not attend my sister’s hockey game.” [ 61 ] There was no connection to be made between the provision of a statement and an earlier release.

In my assessment, there was no bargain, implicit or otherwise, that the accused’s cooperation in the provision of a statement would result in an early release to see his sister’s game. [ 62 ] If an accused, out of his own hopes or motives, is minded to be cooperative with police, that is not a quid pro quo of the sort contemplated by R. v. Oickle . It does not in these circumstances raise a reasonable doubt that the will of the accused was overborne. [ 63 ] The second point submitted by the accused was that Cst. Gendron-Fafard made a threat to Mr. Neurauter.

The evidence of this threat was found in the testimony of the accused where, after first being advised of his right to counsel in the police vehicle, he said he asked the officer, in effect, whether contact with legal counsel would expedite the process. He said that Cst. Gendron-Fafard told him that if he contacted counsel he would be detained for 48 hours. This was the threat, it was submitted. [ 64 ] Mr. Neurauter said he didn’t question this assertion and replied only that he wouldn’t require a lawyer.

Neither did he raise the matter when his right to consult with counsel was discussed again during the taking of the recorded statement. [ 65 ] Counsel for Mr. Neurauter asserts that this exchange relating to a 48 hour detention ties in with the implicit quid pro quo arrangement alleged above. The additional message said to be conveyed to the accused by this was that if he spoke to a lawyer he’d be held for two days, but if he cooperated, he could depart in time to see the hockey game.

Counsel framed the argument as both a threat and as oppressive conduct. [ 66 ] There would be some force to the argument if the evidence was accepted as a true reflection of what Cst. Gendron-Fafard said to Mr. Neurauter. However, I do not accept the evidence of Mr. Neurauter on this issue. [ 67 ] Rather, I accept the evidence of Cst. Gendron-Fafard that he did not threaten to detain the accused for 48 hours if he spoke to a lawyer. In these circumstances, it would have been a cynical manipulation for the constable to make such a threat.

The threat, if it was made, could easily have come to light on the recording of the formal statement, not least when the constable initiated another discussion with the accused regarding the availability of a consultation with a lawyer if he wanted one. [ 68 ] Cst. Gendron-Fafard said he was not aware of any basis upon which he could have detained the accused for 48 hours without bringing him before a justice. His stated intention to the accused was to release him as soon as they were finished at the detachment.

Such a high-risk assertion by the constable would have put in grave jeopardy the admissibility of any statement which followed. I accept the Crown submission that such an assertion would make no sense from a practical or legal perspective. [ 69 ] Reference as well must be had to the evidence of Mr. Neurauter on the point. He did not strike me as an entirely reliable witness on this issue. In cross examination, for example, Mr.

Neurauter gave evidence that: … initially I was interested in consulting with a lawyer, as I thought it might be able to save me from the entire process and allow me to move it to a later date so that I could assist the police with their questioning. [ 70 ] When he was asked to explain that, he added: I thought that, as the police had told me that I was coming with them to answer questions and I was always trying to facilitate that, showed no resistance, I thought that if I was potentially in contact with a lawyer -- I mean, we’re talking about -- these charges are stemming from three years ago, so I figured why would I have to deal with that right now at my sister’s hockey game, why couldn’t I just put that off until a later day. [ 71 ] Later in cross examination, Mr.

Neurauter agreed that this statement was not correct. At the time he was considering consulting a lawyer he wasn’t aware of the precise nature of the charges or the time they stemmed from. “I didn’t know what the actual situation was that I was in trouble for,” he said. [ 72 ] In the result, I accept the evidence of Cst. Gendron-Fafard on this issue where it conflicts with that of Mr.

Neurauter. [ 73 ] The third point raised by the defence related to the remark by the officer to the effect that “I would really like you to be honest ‘cause um basically it’s gonna look the best for you, right?” This is the "it would be better" comment identified by Justice Iacobucci that will require exclusion only where the circumstances reveal an implicit threat or promise. [ 74 ] The officer described his words as an attempt to appeal to the accused’s sense of honesty rather than an effort to create hope of advantage or fear of prejudice.

An appeal to honesty or the acceptance of responsibility is often referred to as moral suasion. The risk, as previously discussed, is that the expression of what may be intended as an appeal to honesty coupled with an "it would be better" comment may imply that dire consequences will flow from a failure to speak. [ 75 ] It is noteworthy in the course of this statement that the “look the best for you” comment occurred only once, and that was near the start of the statement at page 8. The comment did not appear to have any observable impact on Mr.

Neurauter, who had no difficulty denying the assertions put to him by the officer. The impugned words did not induce the accused to make a confession. [ 76 ] Later at page 21 the constable asked the accused: LGF: But last July, August you were in Kamloops? CN: Uh yeah. LGF: In 2015? CN: Yeah. LGF: Okay. ‘Kay. ‘Kay. So again, last chance. CN: Yeah. LGF: Do you want to disclose anything that happened with Z and I.K.? Uh not Z, uh M.B. and I.K.… CN: No. LGF: Since summer of last year? CN: No. LGF: No? CN: No. [ 77 ] At page 22, Cst. Gendron-Fafard changed tack and said to the accused: ‘Kay.

So let me tell you what I have read today, ‘kay? You don’t have to say anything right now but I want you to know what has been said against you. [ 78 ] Mr. Neurauter responded “Yeah. Yeah for sure.” [ 79 ] As Cst. Gendron-Fafard laid out some of the particulars alleged to have occurred the previous summer between Mr. Neurauter and M.B., the accused admitted some contact and touching of a sexual nature. Cst. Gendron-Fafard at several points commended Mr. Neurauter on his honesty. Result [ 80 ] I am satisfied that the Crown has established beyond a reasonable doubt that the words spoken by Mr. Neurauter to Cst.

Gendron-Fafard were freely and voluntarily given and that the objections raised by counsel on behalf of the accused do not, singly or taken together, raise any doubt about the voluntariness of those words. [ 81 ] The statements made by Mr. Neurauter to Cst. Gendron-Fafard are admissible in evidence. ______________________________ S.R. Harrison Provincial Court Judge