R. v. O.J.M. Date:, 2017 BCPC 23

Citation: R. v. O.J.M. Date: 20170130 2017 BCPC 23 File No: 16855 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. O.J.M. RULING ON APPLICATION TO EXCLUDE EVIDENCE OF THE HONOURABLE JUDGE S.M. MERRICK Counsel for the Crown: M. West Counsel for the Defendant: M. Foster Place of Hearing: Sechelt , B.C. Dates of Hearing: October 19 and 20, 2016 Date of Judgment: January 30, 2017

[1] OJM is charged with the sexual assault of KM on February 1, 2015. [2] This is an application by OJM for the exclusion of evidence on the grounds that his rights under s. 10(

a) and (

b) of theCanadian Charter of Rights and Freedoms have been infringed. [3] On February 1, 2015, Constable Johnson of the RCMP interviewed KM. Based on that interview, he believed OJM was asuspect in the sexual assault of KM. [4] On February 2, 2015, Constable Johnson made efforts to locate OJM. OJM who was no longer living on the Sunshine Coastcalled Constable Johnson. Constable Johnson told OJM that he was a suspect in a sexual assault and Constable Johnson requested OJMattend at the Sechelt RCMP detachment.

At no time did Constable Johnson tell OJM that he was required to attend. [5] On February 8, 2015, OJM went to the police station with his father and two witnesses who were interviewed by ConstableJohnson. After interviewing the two witnesses, OJM was taken into an interview room. At 2:35 p.m., Constable Johnson explained toOJM that he was a suspect in an sexual assault. At 2:36 p.m., he arrested OJM and provided OJM his Charter rights. He also told OJMthat he would be released. Constable Johnson did not tell OJM that he wanted to take a statement from him.

At 2:37 p.m., OJM toldConstable Johnson he understood his rights and did not want to call a lawyer “right now”. It is conceded that had OJM called a lawyer atthis point, it would have delayed his release. [6] Constable Johnson then released OJM on a promise to appear and then for the first time told OJM that he wanted to get astatement from him. It is important to note that at this point OJM is still in the same interview room he was in when he was arrested.

OJM then provided a statement to Constable Johnson. [7] Defence counsel submits that the actions of Constable Johnson constituted “a tricky Charter sleight of hand” and “that youwould have to be either a lawyer or a law professor to truly understand that, in that situation, OJM was truly free to leave.” Defencecounsel further submits that Constable Johnson’s actions were nothing more than a technical release to defeat Charter requirements. Defence counsel suggests that Constable Johnson should have walked OJM to the front door of the police detachment and then askedhim if he wanted to provide a statement.

That defence counsel submits would have truly brought home to OJM he was free to leave andnot obliged to provide a statement. [8] Crown counsel submits that OJM was free to leave as Constable Johnson suggested and that OJM never asked to call a lawyer. [9] Constable Johnson was the only witness on the voir dire. ANALYSIS [10] The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonableperson, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer.

See R. v.Grant, 2009 SCC 32 at para. 41. [11] It is concerning that Constable Johnson waited until he had released OJM to tell OJM that he would like to get OJM’s side ofthe story from him. That said, prior to questioning OJM, Constable Johnson told OJM: 1. Anything OJM said could be used as evidence. 2. That he was free to go, that the interview room door was unlocked and the front door to the police station was locked onlybecause it was the weekend, and that he would unlock it for OJM. 3. That he did not have to talk to Constable Johnson nor did he have to tell Constable Johnson anything. 4.

He could leave at any time. [12] Constable Johnson began the questioning by saying “…. so if you want to tell me as best you can ….” [13] I have also noted that there was nothing in Constable Johnson’s tone of voice or demeanour which would suggest that OJM hadto remain. [14] Detention identifies the point at which the authorities are obliged to immediately inform a suspect of the right to counsel unders. 10(

b) of the Charter. This recognizes the vulnerability of individuals who are taken under effective state control, and ensures that theyhave the opportunity to seek legal advice, and understand that they have a choice as to whether to cooperate with and speak to theauthorities. Detention may be physical or psychological. Psychological detention occurs when a reasonable person in the subject’sposition would conclude by reason of the state’s conduct that he or she has no choice but to comply with authorities. It may be difficultto determine when a person is psychologically detained.

In addressing this issue, the court should consider the entire interaction as itdeveloped. See R. v. Seagull, 2015 BCCA 164 , at para. 35. [15] It is concerning that Constable Johnson did not tell OJM that he wished to get OJM’s side of the story until after he releasedOJM and the request was made when OJM was in the same room that he was in when he was arrested. However, in a conversationaltone, Constable Johnson explained to OJM that he did not have to speak with him and that he was free to leave. The onus is on theapplicant to show in the circumstances that he was effectively deprived of his liberty of choice.

Considering the entirety of theinteraction between Constable Johnson and OJM from the telephone call on February 2, 2015 to his departure from the police station onFebruary 8, 2015, I am satisfied OJM understood he could leave without telling his side of the story to Constable Johnson. I am notsatisfied that OJM has demonstrated that, as a result of state conduct, he had no choice but to comply with Constable Johnson’s request.

Accordingly, the application is dismissed. The Honourable Judge S.M. Merrick Provincial Court of British Columbia