R. v. S.H.P. Date, 2003 BCSC 776

Citation R. v. S.H.P. Date: 20030402 2003 BCSC 776 Docket: 16842 Registry: Smithers IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Ruling on Voir Dire re application for exclusion The Honourable Mr. Justice Halfyard April 2, 2003 HER MAJESTY THE QUEEN AGAINST S.H.P. Counsel for the Crown: D. Brennan Counsel for the Defence: D. O'Byrne BAN ON DISCLOSURE s. 486(3) [ 1 ] THE COURT: S.H.P. is charged with sexual assault, touching for a sexual purpose, and sexual exploitation.

All three offences are alleged to have been committed against E.C., a young girl who is now aged 11, during the two-year-and-eight-month period from September 1st, 1997, to April 30th, 2000, near New Hazelton. [ 2 ] After the accused pleaded not guilty to the charges and a short opening statement by Crown counsel, a voir dire was commenced. There are two issues, both of which are concerned with the admissibility of a statement made by the accused to police, which the Crown seeks to introduce. [ 3 ] The accused made the statement on May 2nd, 2001, after he was arrested on the present charges.

The first issue is whether the accused made the statement voluntarily. In the event the statement was voluntary, the second issue is whether the statement should be excluded under s. 24(2) of the Charter of Rights . The onus is on the Crown to prove voluntariness beyond a reasonable doubt. The onus is on the accused to prove, on the balance of probabilities, that the statement should be excluded under the Charter . [ 4 ] Four witnesses testified for the Crown on the voir dire: Constable Cyr; Elias Nunes, a jail guard; Julie Kringle [phonetic], a social worker; and Constable Kennedy.

There were three exhibits filed which included the prisoner's log kept by Mr. Nunes, the audiotape of Constable Kennedy's interview of the accused, and a 23-page transcript of the conversation recorded on the audiotape. The accused did not call evidence on the voir dire. [ 5 ] I summarize the relevant facts from the evidence presented on the voir dire. On November 7, 2000, Constable Kennedy was assigned to investigate this case after police in Vancouver had sent their file to the New Hazelton RCMP.

He did nothing until after he received a transcript of the interview of the complainant by police at Vancouver, which was apparently not received until about mid- April 2001. On April 16, 2001, he spoke to Ms. Kringle, and on April 17th, 2001, he spoke to Crown counsel about this case. [ 6 ] Constable Kennedy decided to arrest the accused for offences allegedly committed against his niece, E.C.. On May 1st, 2001, he called Ms.

Kringle and told her he intended to arrest the accused the next day at his home in Hazelton, and it was agreed that she would come to the accused's home to care for any child who might be there. [ 7 ] Constable Kennedy and Constable Cyr, an inexperienced recruit, patrolled past the accused's house on May 2nd and saw no vehicle at the house and presumed the accused was not at home. [ 8 ] Later that same day at around 4:15 p.m. or shortly thereafter, the two police officers went to the accused's home again and saw a vehicle there. Constable Kennedy called Ms. Kringle and asked her to come to the accused's home.

The two police officers went to the front door and knocked. Constable Kennedy planned to arrest the accused if he came to the door. He believed he had reasonable and probable grounds to arrest the accused since about April 16th. He did not have a warrant for arrest because charges had not yet been

laid. He took no steps to obtain a Feeney warrant under s. 529.1 of the Criminal Code because he did not expect to have to enter the accused's residence to arrest him. Constable Kennedy had decided to arrest the accused because he wanted to try to obtain a statement from him and to prevent continuation of the offence. [ 9 ] The accused answered Constable Kennedy's knock and identified himself to the police officer, but he had his two-year-old daughter with him. No one else was at home. Constable Kennedy decided not to arrest the accused at the door as he wanted to avoid the risk of upsetting the child.

He told the accused he wanted to speak to him in private but did not tell the accused that he was going to arrest him. The accused then told the police officer to come in, and both officers went inside. Constable Cyr watched the child. [ 10 ] When he got into the living room, Constable Kennedy told the accused he was under arrest for sexual assault. He told the accused that E.C. had made allegations against him but did not give any details of her allegations. He told the accused he had the right to call a lawyer and to remain silent. Mr. S.H.P. said he did not want to call a lawyer at that time.

Constable Kennedy and the accused sat down in the living room. Constable Cyr attended to the child in another room. Julie Kringle arrived soon after. She told the accused she was there to care for the child temporarily and asked the accused to call a relative to come to the house. The accused asked Constable Kennedy if he could call his mother-in-law to come and watch the child. Constable Kennedy agreed, and the accused made the call. The accused's wife was apparently en route to the Smithers airport to fly to Vancouver.

Everyone waited for B.C. [ 11 ] Constable Kennedy and the accused engaged in mainly casual conversation. Ms. Kringle overheard the accused deny the allegations being made against him by his niece. B.C. arrived at about 4:54 p.m. The police officers then took the accused outside to the police car, and he was handcuffed either before or immediately after leaving the house. Constable Kennedy then fully informed the accused of his right to counsel and his right to remain silent. The police officers drove the accused to the police station in New Hazelton, which took about 15 minutes.

They arrived at about 5:13 p.m. and Constable Kennedy took the accused into the cell area and booked him in. At about 5:17 p.m., he asked the accused if he wanted to call a lawyer, and the accused said he did. [ 12 ] Constable Kennedy called the designated legal aid number and left a message asking that a lawyer should call the accused. A lawyer called back later and the accused spoke to him for about three minutes, ending at about 5:50 p.m.

It appears the accused was in a jail cell at that time. [ 13 ] At about 6:45 p.m. or so, Constable Kennedy went to the jail cell and took the accused to an interview room for the purpose of obtaining a statement from him. The accused had not yet been given a meal. [ 14 ] The police officer began the interview by telling the accused that E.C. had accused him of sexually abusing her during a period of about three years when she lived with the accused and his wife.

The conversation then proceeded in this way, and I am reading from lines 42 to 59 of the transcript, Exhibit B [as read in]: Q I'd like to give you the opportunity to speak to me about it now. A Okay. Q I can't promise you anything. You talking to me right now will not get you out of jail any quicker.

Um, my intention right now is, ah, to have you brought to Smithers tomorrow to go before a judge or a Justice of the Peace, and they will, ah, you will be released tomorrow, ah, but the idea is, ah, to take -- we want to impose some conditions on you, a release condition, bail condition that I don't have the power to do. So -- so that's why you -- you'll be going before a judge, so that's my intention, okay? You don't have to talk to me now, but again, I only have one side of the story, okay? I'm leaving that decision up to you. Um, I'll let you speak. A Okay. The phone call that you -- Q Pardon me?

A The phone call would like me to have, ah, ah, was it a legal aid lawyer? Q Yes. A He just advised not to talk about anything that was -- Q Okay. A Um, but I feel I should talk -- that I should say because I'm quite shocked about the allegations. [ 15 ] That is the end of the quote from the transcript. The police officer continued to question the accused until 7:25 p.m. In the statement, the accused admitted to touching the complainant's vagina and buttocks but said he did so only for the purpose of instructing her about bad touching and not for any sexual purpose.

The accused denied many suggestions made by Constable Kennedy that were based on the police officer's knowledge of the complainant's statement. [ 16 ] After the interview, Constable Kennedy fingerprinted and photographed the accused and returned him to the jail cell. He kept the accused in custody overnight because he wanted a bail condition imposed on the accused that he believed he had no power to impose. He described that condition as being that there should be no access by the accused to children under 14 unless it was supervised by another adult.

He also said that he kept the accused in custody after the statement because he wanted to interview the accused's wife before the accused could talk to her. [ 17 ] A bail hearing was conducted before a judicial Justice of the Peace by telephone the next morning at about 11:45 a.m., and the accused was released on an undertaking with conditions.

[ 18 ] On the issue of voluntariness, Mr. O'Byrne submits on behalf of the accused that Constable Kennedy was unable to give details of the conversation he had with the accused in the house. He pointed to the evidence of Julie Kringle, who said the accused denied the allegations, whereas Constable Kennedy said that he had not. Although I find it more probable than not that the accused did deny the allegations at the house and that some part of the conversation between Constable Kennedy and the accused has not been given, I find that this fact does not affect the voluntariness of the later statement.

In my opinion, the evidence proves beyond a reasonable doubt that the audiotaped statement given by the accused was not induced by any fear of prejudice or hope of advantage or deceit or trickery held out by Constable Kennedy. I am also satisfied beyond a reasonable doubt that the accused had an operating mind and that he was not treated oppressively. I conclude the accused's statement was made voluntarily. [ 19 ] On the Charter application for exclusion, the first issue is whether the police violated the accused's s. 8 or s. 9 rights by arresting him inside his house without a Feeney warrant.

I find that Constable Kennedy had reasonable and probable grounds to arrest the accused, both subjectively and objectively. I find also that the accused's invitation to the police officers to come in was not an effective consent because it was not an informed consent. Further, I find there were no exigent circumstances which could justify entering the accused's home for the purpose of arresting him. It follows that the arrest was unlawful notwithstanding the existence of reasonable and probable grounds. (See R v.

Adams (2001), 2001 CanLII 16024 (ON CA) , 157 C.C.C. (3d) 220, a decision of the Ontario Court of Appeal.) There was no search or seizure involved, and so, although, there was a violation of the accused's right to privacy, no real evidence was obtained as a result. But was there a violation of the accused's right against arbitrary detention? The accused was detained in custody until the middle of the next day after being unlawfully arrested.

Not every unlawful arrest results in arbitrary detention, but in my opinion, the accused was arbitrarily detained when he made the statement at the police station. [ 20 ] I find that at that time, the main purpose for Constable Kennedy detaining the accused was to obtain a statement. There could be no necessity to detain him to prevent continuation of the offence. [ 21 ] The second question is whether the accused's statement was obtained in a manner that infringed or denied his s. 9 rights.

Some authorities indicate that this requirement will be satisfied if the " Charter violation occurred in the course of obtaining the evidence." For example, see R v. Kokesch (1991), 1990 CanLII 55 (SCC) , 61 C.C.C. (3d) 207 at pages 219 to 220 in the Supreme Court of Canada, and R v. Grant (1993), 1993 CanLII 68 (SCC) , 84 C.C.C. (3d) 173, at page 198, also in the Supreme Court of Canada. That definition seems vague to me, but here, Constable Kennedy arrested the accused and detained him mainly to obtain a statement from him.

The arrest was unlawful and so his detention was arbitrary, in my view, when the police officer deliberately obtained his statement. I think this is sufficient to establish this essential element. [ 22 ] The third element that must be proved is that the admission of the accused's statement in this trial would bring the administration of justice into disrepute. Three questions must be answered, the first being whether the admission of the statement would adversely affect the fairness of the trial. [ 23 ] In R v.

Stillman (1997), 1997 CanLII 384 (SCC) , 113 C.C.C. (3d) 321, the Supreme Court of Canada held that if the accused shows that the evidence is conscriptive, and if the Crown then fails to prove that the evidence would probably have been discovered without the Charter breach, then the admission of the evidence would render the trial unfair. Mr. Justice Cory discussed the definition of conscriptive evidence in a number of paragraphs.

In paragraph 70 he said: I have used the term "conscripted" to describe the situation where the police have compelled the accused to participate in providing self- incriminating evidence in the form of a confession or providing bodily samples. Similar descriptions are given in paragraphs 73, 80 and 113. In paragraph 77, Mr. Justice Cory said in part: The crucial element which distinguishes non-conscriptive evidence from conscriptive evidence is … whether the accused was compelled to make a statement or provide a bodily substance in violation of the Charter .

At paragraph 80 he said in part: The traditional and most frequently encountered example of this type of evidence is a self-incriminating statement made by the accused following a violation of his right to counsel … [ 24 ] At paragraphs 96 and 97, Mr. Justice Cory gave an example in which a statement of the accused was obtained by police in violation of his s. 8 rights by means of a body-pack recording which was not authorized by a warrant and which was unknown to the accused.

In that situation, the evidence was held to be non-conscriptive because it could not be said that the accused had been conscripted into incriminating himself. [ 25 ] Mr. O'Byrne has argued that the necessary degree of compulsion exists in this case. Mr. Brennan submits that no compulsion has been shown and referred me to R v. M.C.G. , [2001] M.J. No. 482 , which was a decision of the Manitoba Court of Appeal. In that case, there was a violation of a young person's s. 8 rights when he was arrested in his home without a Feeney warrant.

But his confession after arrest was held to be non-conscriptive mainly on the ground that the accused had agreed to talk to police and then willingly did so.

The court found there was "no compulsion exercised by the state to obtain the young offender's confession," at paragraph 19. [ 26 ] After reviewing the authorities, it is my opinion that proof of compulsion requires that a significant degree of causal connection must be shown between the violation of the accused's Charter rights and the obtaining of the evidence. [ 27 ] It seems clear from the cases that if the accused's right to counsel had been violated before he gave the statement to Constable Kennedy, a sufficient causal relationship would be established and compulsion would be made out, but in my opinion, there is no -- or no sufficient causal relationship between the accused's unlawful arrest and arbitrary detention and the obtaining of his statement.

As I see it,

any causal connection that might have existed was broken by the accused's offer to make a statement after receiving legal advice. [ 28 ] I conclude that the accused's statement was non-conscriptive evidence and its admission would not affect the fairness of the trial. For the purpose of considering this issue, I have assumed that even exculpatory statements should be treated as being self-incriminating evidence. But I should say that I am far from certain that this assumption is correct. [ 29 ] The second factor is the seriousness of the Charter violation.

Crown counsel says the police officers acted in good faith. Although I do not find there was bad faith, I am unable to conclude there was good faith. The incident occurred several years after Feeney was decided and long after the Criminal Code was amended. Moreover, there was no urgency for the accused's arrest and no necessity to preserve evidence.

Finally, the arrest of the accused could easily have been accomplished by alternate means. [ 30 ] I agree that the police treated the accused with a proper measure of respect and did not remain in the house longer than it took to comply with the accused's request for his mother-in-law to come to the house before he left, and there was no search of the residence and no attempt to question the accused in his house. In my view, although the breach is not technical or trivial nor is it of great seriousness.

But I think this factor weighs slightly in favour of exclusion. [ 31 ] The last issue is whether excluding the evidence would bring greater disrepute on the administration of justice than admitting it. Relevant matters include the seriousness of the crime, the importance of the evidence to the proof of the Crown's case, and the reliability of the evidence. First, the crime charged is serious.

Next, the accused's statement will likely be of considerable importance to the Crown's case, in my view, for at least two reasons: First, the only Crown witness who can give direct evidence in support of the charges is an 11-year-old child. Second, although the accused in his statement denies any sexual motive, he admits touching the complainant's vagina and buttocks. As to the reliability of the evidence, the accused's statement is fairly detailed and was offered by the accused as his response, in large part, to the allegations against him.

It seems to me to be the kind of evidence that would not likely be recanted or contradicted if the accused chooses to testify. I think it can be called "reliable evidence." [ 32 ] In my view, excluding the accused's statement would cause more harm to the administration of justice than admitting the statement would cause. My overall conclusion is that society's interest in the effective prosecution of serious crime slightly outweighs the seriousness of the violation of the accused's Charter rights.

The defence has, therefore, failed to establish, on a balance of probabilities, that the admission of the accused's statement would bring the administration of justice into disrepute. Accordingly, the application for exclusion is dismissed. “D.A. Halfyard, J.” The Honourable Mr. Justice D.A. Halfyard August 26, 2003 – Corrigendum to the Oral Ruling on Voir Dire re Application for Exclusion issued by Mr. Justice D.A. Halfyard advising that through inadvertence, in paragraph one, the name of the complainant is disclosed. The complainant should have been referred to as “E.C.”.

The corrected sentence should read: “All three offences are alleged to have been committed against E.C., a young girl who is now aged 11, during the two-year-and-eight- month period from September 1, 1997, to April 30, 2000, near New Hazelton.”