R. v. Wiks and Jackson, 2019 BCPC 30

Citation: R. v. Wiks and Jackson 2019 BCPC 30 Date: 20190118 File No: 17089-1 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FLOYD ANTHONY WIKS AND TYIS ALLEN JACKSON RULING ON VOIR DIRE (RE ACCUSED FLOYD ANTHONY WIKS) OF THE HONOURABLE JUDGE A. BROOKS Counsel for the Crown: D.J. McKay Counsel for the Accused Floyd Anthony Wilks appearing by videoconference: D.J. Marion, Q.C. L. Stansfield, Articled Student Place of Hearing: Port Hardy, B.C. Date of Hearing: January 17, 2019 Date of Judgment: January 18, 2019 [ 1 ] THE COURT: So Mr. Wiks is charged that on or about November 28, 2017, he had possession of property of Ms. N. and Mr.

[ 1 ] THE COURT: So Mr. Wiks is charged that on or about November 28, 2017, he had possession of property of Ms. N. and Mr. R. of a value not in excess of $5,000, the property having been obtained by the commission of an offence. [ 2 ] Evidence of two police officers was led on a voir dire. The voir dire was as a result of the defence seeking to exclude evidence which was obtained on two dates, namely November 28th and December 5th. As they involve slightly different issues, I will deal with them separately. [ 3 ] First of all, with regard to November 28th, on that date Mr.

Wiks, with two other individuals, was approached by Constable Vassos. They were on the streets in the early morning hours. It is that interaction which the defence says raises issues under ss. 8, 9, 10(a), and 10(b). [ 4 ] The evidence, as I have already said, relates to that evidence which comes from two police officers. Unfortunately, the evidence of the two police officers is quite different on key points.

This is so much so that, in my view, there are some points at which it can only be concluded that one officer must be inaccurate and the other officer accurate; the conflicts are of such significance. [ 5 ] Accordingly, it is necessary for me to be clear as to the findings of fact as to what exactly did happen in those early morning hours of November 28th. [ 6 ] In deciding on findings of fact, I should make it clear that I do not intend to review all of the evidence of the two police officers. I have read through my notes several times of their evidence and take into account the totality of it.

I am also aware that I am entitled to accept all, part, or none of a witness's evidence. As I have said, on the facts of this case, I have come to the view that it is necessary that I do determine which witness I am able to rely on. [ 7 ] I also bear in mind the Crown's submission that differences in the evidence may not be contradictions.

Implicit in that submission is that I should be careful before coming to the conclusion that I must reject any evidence which I have heard. [ 8 ] Bearing all of that in mind, I do intend to state what I have concluded and then provide the reasons for that conclusion. [ 9 ] I have concluded, after anxious consideration, that I accept completely the evidence of Constable Kotilla. Where his evidence is contradicted by that of Constable Vassos, I reject the evidence of Constable Vassos and accept that of Constable Kotilla.

Indeed, there were areas in the evidence where I accept the inferences which arise from the evidence of Constable Kotilla, even in circumstances where Constable Vassos has given direct evidence on that point. [ 10 ] These are my reasons for that conclusion. [ 11 ] First, during the course of giving his evidence, Constable Vassos had difficulties with his memory. At the beginning, he was asked what he had told the individuals as to what he was investigating.

He said at one point that, "I can't say what I said." He was later asked with regard to the issue of what he said regarding a detention which did occur, that he could not recall the verbiage. I understand that these events occurred a significant period of time ago and understandably memory would come into play. I do not say that those difficulties are anything other than might occur from the passage of time, but it is for me to make decisions as to findings of fact, and I do find that Constable Kotilla was able to have much less difficulty with his memory, in terms of the recounting of the events.

That is a factor I take into account. [ 12 ] I take into account, as well, that there was placed before Constable Vassos what was suggested to be an inconsistency between his evidence and what he had put in his report to Crown counsel prepared closer to the time of the events. He put in that report to Crown counsel, for example, that he had seen the three young men and that he had observed them to be behaving very nervously.

When he testified before me, he testified that the three young men were very calm and then only later became nervous as a result of questioning. [ 13 ] As I listened to exactly what was put to him from the report to Crown counsel, it did, to my ear, have a very different sound from that to which he was testifying.

I do not take it so far as to say it is a prior inconsistent statement, but I do take it at least this far; that his recollection of exactly what happened and the exact sequence is something that becomes much more difficult to rely on. [ 14 ] A related note, which I have already made some reference to, is that Constable Kotilla, in giving his evidence, had a clarity about the events and their sequence which very much favoured the reliability of Constable Kotilla's evidence. [ 15 ] There was also some concern that I had in terms of Constable Vassos' answering of questions.

During the course of cross- examination, he was asked about his encounter with Mr. Wiks on the 5th of December. He was asked by Mr. Marion why he had not just arrested Mr. Wiks, as that was his intention, and his answer was not responsive to the question, a subject to which I expect to return, and that caused me some concern as well. Answers to the questions which were not difficult questions were, in fact, ones that he seemed to have some difficulty with.

That caused me concern as well. [ 16 ] Finally, I had some concern with regard to Constable Vassos' recounting of events because they did not seem to really accord with common sense. Constable Vassos described his approach to these young men and stated that they said very quickly that they had nothing to hide.

He then said that they somewhat spontaneously then began to empty their pockets onto the trunk of his vehicle. [ 17 ] I had difficulty with that, not just from the general observation that young men are slow to do anything spontaneously, but in the particular circumstances of this case that they would do so in the way that Constable Vassos had suggested.

It simply did not quite have that ring to it which one associates with an accurate and clear recollection. [ 18 ] So for all those reasons, I come to the conclusion that, as I have said, where there is a contradiction between the evidence of the two of them, I do accept the evidence of Constable Kotilla and do not accept that of Constable Vassos. [ 19 ] There are, however, some areas on which the only evidence is that of Constable Vassos. I intend to mention those specific areas where that occurs and where I do accept his evidence.

[ 20 ] So it comes to deal with what exactly happened on November 28th and what my findings of fact are in that regard and, as I say, I rely on what Constable Kotilla testified to. [ 21 ] He obviously arrives afterwards, because he received a call from Constable Vassos who said that he was with the three males at the time. Constable Kotilla attended shortly thereafter. He recognized two of the individuals as Mr. Wiks and Mr. Jackson. [ 22 ] He testified that he was told by Constable Vassos that he, Constable Vassos, had detained the three males for car theft.

Constable Vassos then said he was going to go do radio checks. Constable Kotilla then turned his attention to the three young men and saw Mr. Wiks with a CD case in his hand. He had a binder type of various CDs. He said that eventually Wiks showed him, Constable Kotilla, the CDs that had artists which were ones that Constable Kotilla thought surprising for young people to have, namely Tim McGraw and Meatloaf were the examples said. [ 23 ] Constable Kotilla testified that Mr. Wiks said that he was a big fan and that Mr. Wiks and Mr. Jackson said they had been at Monica Shaw's house.

It was then that Constable Kotilla asked if they had weapons and Mr. Jackson said that he had a clip, and he put that on a vehicle nearby. It was at about this time that Constable Vassos came back from having done the checks on these three young men. [ 24 ] Shortly thereafter, Constable Kotilla testified that he then went and looked for forced entry of vehicles in the trailer park. He did not find any.

At the time he arrived back, he received a priority call and he and Constable Vassos left. [ 25 ] He testified that the total time on the scene was approximately 10 minutes, including the time he left to do a quick patrol of the area. He was asked about the three individuals and he, Constable Kotilla, testified, "I was of the view that they were not free to leave." [ 26 ] He was asked, "When did Constable Vassos advise you that they were detained?" "When I first arrived on the scene.

I did not tell the three people whether they were free to go or not free to go." [ 27 ] He was asked in cross-examination if any of the three had attempted to leave, what he would have done. He said, "I would have checked with Constable Vassos as to whether the detention was over." [ 28 ] He also testified in cross-examination that he assumed that the Charter of Rights indeed had been read.

He was asked a hypothetical question, "If you had known that no Charter had been given, would you have provided it?" To which he quickly said, "Yes." [ 29 ] He was asked about any additional search which had been done and he said that Vassos told him that a search had been done with the detention.

He was asked about whether the three males had remained with Vassos during the time he searched the area and he said yes, that was the case, and that he had been away for approximately five minutes and they were still there on his return. [ 30 ] So I summarize that evidence because that is the evidence which I find as fact as to what happened. [ 31 ] That, of course, is extremely important in light of the arguments as put forward by the defence. [ 32 ] The issue becomes, in light of that evidence, when did the detention commence?

Because as I say, Constable Kotilla arrived at a time at which Constable Vassos had already said that it had occurred. For that, I need to draw inferences from the evidence that I have heard and I do that bearing in mind the test as set out in the case of R. v. Grant. Those three particular suggested principles of analysis are repeated in R. v. B.S. , [2014] B.C.J. No. 1327 at paragraph 18 .

There, paragraph 44 of Grant is quoted, which I do not need to repeat. [ 33 ] I do need, however, to apply that test, and I have concluded that the detention occurred when Constable Vassos determined that the young men were lying about where they had been. I conclude that his conversation then turned to questioning and a particular investigation of these three individuals for a theft offence. I am satisfied that the psychological restraint which is part and parcel of a detention commenced at that time.

These are the reasons for that conclusion. [ 34 ] As I have said, Constable Vassos referred to the individuals saying that they had nothing to hide. His evidence was not clear on what had generated that very specific statement by the three young men. I have concluded, as a result of drawing an inference, that that kind of statement would have only been made as a result of a pointed question. I cannot conclude reasonably that any young person would simply say, "We have nothing to hide" without having been asked such a pointed question.

I am fortified in that by my difficulty in accepting the suggestion that these three young men spontaneously started emptying their pockets onto a car trunk. I do not find that as a credible proposition. That, too, must have come as a result of a direction. I infer that direction from the totality of the evidence that is before me. [ 35 ] As a result, clearly I am of the view that these three individuals were the subject of a focused investigation. [ 36 ] It was at about this point that Constable Vassos stated that he started asking questions and they did not have answers and started, as a result, to get nervous.

That, too, leaves me with the suggestion, and indeed it is an inference drawn, that I draw, that the questions themselves must have been pointed ones. [ 37 ] Constable Vassos asked about the music choice that they had. Constable Vassos said that this conversation was lighthearted. I regret that I cannot accept that. He did admit on cross-examination that he was suspicious of these young men. I cannot accept that, in these circumstances, the questions were lighthearted, when one considers what the questions clearly must have been and must have been directed to.

It was directed to the conclusion that the music was not theirs, and therefore the CDs were not theirs, and therefore they were stolen. [ 38 ] The exchange certainly, from a common sense point of view, must have followed those lines. That is the inference and conclusion that I draw.

[ 39 ] Again, we are dealing with a focused investigation and not any general queries. [ 40 ] The young men stayed around while Constable Kotilla went to check for signs of a particular crime. The nature of the police conduct in these circumstances is that these three are clearly being investigated while the police went out and searched for evidence that a crime indeed had been committed.

It would be reasonably perceived by them that their trip home had been stopped until the police had conducted those inquiries. [ 41 ] I also come to the conclusion of the timing of this detention by the fact that these three were asked for their names and dates of birth, so that they could be checked for any warrants and all the regular inquiries could be made.

This was, using the language of paragraph 28 of the B.S. decision, an investigation, not simply something about prevention. [ 42 ] It is clear, in my view, and there is no question in this regard, that the rights were not given to these three young men at the time that they were detained. That, to me, is a clear breach of s. 10(

b) of the Charter . [ 43 ] The Crown argues, however, that it is absurd to suggest that the police should give everyone present their right to counsel before proceeding to sort out the situation, relying on that language from paragraph 32 of Suberu . I do not question in any way what was said by paragraph 32 of Suberu , but I found that on the totality of these circumstances, Constable Vassos sorted out the situation quickly.

He had concluded the three young men out late, carrying CDs in an area where car thefts had been occurring, were lying to him about where they had just been. [ 44 ] It was at that time that Constable Vassos indeed had sorted out the situation, and indeed it is consistent with my finding as to when the detention occurred. [ 45 ] It is also argued by the Crown that there was a 10 to 15 minute time period and it is something from which I ought not to draw the conclusion of a detention from that.

They point out that in B.S. , the time period involved was 14 minutes. [ 46 ] I note that in the decision of Trott , the time involved was seven to eight minutes, but at the end of the day that does not really matter. This is not a question of rights by stopwatch. [ 47 ] The issue of brevity leads or does not lead to the inference as to whether it was a general assistance encounter or whether it was a focused investigation. Obviously the briefer it is, the likelihood is that it is just general assistance. The longer it is makes it more likely that it indeed is an investigation.

But as I say, the amount of time is not determinative. What is determinative is what exactly - what was happening in the encounter between the police and these three individuals. I have attempted to set that out already and it is in the context of my conclusion that Constable Vassos, having sorted out the situation, had indeed detained these young men very early on. [ 48 ] I will return to the issue of the remedy. [ 49 ] I will come to the second issue raised by defence, and that is the statement given by Mr. Wiks on December 5th.

This was an occasion on which Constable Vassos attended to a residence on Granville Street for the purpose of arresting Mr. Wiks. I will say at the outset that the defence did not argue the issue of voluntariness and, indeed, on the totality of the circumstances I have heard, I am satisfied beyond a reasonable doubt that the Crown has proven that these statements were voluntary, as that term has been used in R. v. Oickle from the Supreme Court of Canada. [ 50 ] However, the issue of Charter of Rights compliance was raised. Therefore, it is necessary to review the circumstances.

In those circumstances, Constable Vassos said that he went to this particular residence in order to arrest Mr. Wiks for possession of stolen property. [ 51 ] When he met the accused, he did not immediately arrest him. He did identify himself. Given his obvious dress, learned defence counsel points to the curious decision to give that particular duty a priority without any attention to arresting him immediately, which would have, of course, required the giving of his Charter of Rights . Instead, Mr. Wiks was told the police warning that anything he said may be used in evidence.

He was then asked about the CDs from the night before. [ 52 ] I have already referred to a question and answer given by Constable Vassos that I had difficulty with. In cross-examination, he was asked by Mr. Marion, "Why did you not just arrest him?" That was an open-ended question.

It was not one which cornered Constable Vassos in any way, that restricted his ability to answer or consider how to respond to it, and yet at the same time he had difficulty answering it, by saying that, "I wanted him to understand I was a police officer." [ 53 ] I regret to conclude that that is a complete non-answer and it makes clear to me that there was no justification or rationale for what he did, other than to delay the arrest and the Charter warnings. [ 54 ] The statement which occurred, occurred before there was Charter warnings, but that is only and solely because of that delay artificially created by Constable Vassos.

In those circumstances, I am of the view that there is indeed a Charter breach of s. 10(

b) as it relates to the statement given on December 5th. [ 55 ] That brings us to the issue of 24(2) as it relates to the two dates in question. I have taken into account the Grant factors, which have been summarized by Mr. Justice Romilly in R. v. Phengchanh , [2011] B.C.J. No. 699 , that is spelled P-h-e-n-g-c-h-a-n-h.

A three-fold test is put forward in order to deal with the issue of society's confidence in the justice system, and I apply that to the two dates in question. [ 56 ] I will deal with the easier of the two issues; that is December 5th. [ 57 ] I am satisfied that the conduct of the police, and particularly Constable Vassos, on this occasion was one which is contrary to longstanding legal authority. I am satisfied that Constable Vassos was aware of that.

It becomes, in the circumstances of this case, critically important that the court dissociate itself from conduct which pays no heed to longstanding legal principles.

[ 58 ] It is essential, in my view, that there be no benefit for doing so. That is the most important factor that I take into account when I consider the three factors. Balancing them all, as I must, I come to the conclusion that the statement given on December 5th ought not to be admitted. It is excluded. [ 59 ] With regard to the interaction on November 28th, the analysis is a little more difficult and a little more complicated. [ 60 ] With regard to the seriousness of the Charter -infringing conduct, I take into account what was stated by Mr.

Justice Rosenberg in Byfield as it is quoted in Phengchanh at paragraph 45. Here is what that extremely experienced judge as to criminal law had to say. He said that: [26] . . . the violation here could not be properly characterized as minor or "minimal in the extreme". I would also make this observation. In R. v. Mann at para. 18, Iacobucci J. considered the justification for undertaking modification of the common law to permit the police to conduct investigative detentions short of arrest.

He noted that the "unregulated use of investigative detentions in policing, their uncertain legal status, and the potential for abuse inherent in such low-visibility exercises of discretionary power are all pressing reasons why the Court must exercise its custodial role" . . . An important lesson from R. v. Mann is that the courts must take seriously the violation of a suspect's rights in the course of an investigative stop. [ 61 ] I have thought long and hard about that particular statement, not just because of it being one from Mr.

Justice Rosenberg, but also because of a consideration of the reality of how serious the conduct is.

In evaluating that, I consider that it is one of the things of which there is justifiably great pride in our society, that we can walk around our streets and do whatever we want at whatever time we want within the confines of the law, and we can be as idiosyncratic as we want to be, because this is a free society in which we can do as we wish without having to worry that we will be stopped and we will be detained, and it will occur without the giving of our rights. [ 62 ] In my view, the violation in this case is very serious.

The impact of the breach on the Charter -protected interests of the accused are certainly in issue in this case and favour exclusion rather than inclusion. With regard to society's interest in the adjudication of the case on its merits, I take into account that society is always interested in the adjudication of a case on its merits.

That is very much relevant in a smaller community in which the ability to carry on one's day-to-day life and protect one's own property is particularly cherished. [ 63 ] Having balanced the totality of the circumstances, I come to a concern about the long-term impact on the administration of justice and the confidence in it. I am concerned and conclude that the administration of justice and its reputation would be impacted adversely by the admission of this evidence.

It is in that interest that I have concluded that the evidence from the time of the questioning as to the CDs, which would precede the opening of the container to show those CDs, is all evidence which ought to be excluded and it is excluded. (RULING CONCLUDED)