R. v. Theriault Date:, 2013 BCPC 386

Citation: R. v. Theriault Date: 20140729 2013 BCPC 0386 File No: 190934-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GLEN EDWARD THERIAULT RULING ON VOIR DIRE OF THE HONOURABLE JUDGE P. DOHM Counsel for the Crown: W. Sayson, Q.C., D. Assonitis Counsel for the Defendant: M. Richards, R. Gill

Place of Hearing: Surrey , B.C. Dates of Hearing: July 22, 23, 24, 25, 2013 Date of Judgment: July 29, 2013 [ 1 ] THE COURT : At issue in this voir dire is the admissibility of various utterances or statements the accused made to Cst. Johnston following his arrest on the charge of dangerous driving causing death. The Crown bears the burden of proving the voluntariness of these statements beyond a reasonable doubt whereas the accused must establish that his Charter s. 10(

b) right was violated on a balance of probabilities. [ 2 ] I will address voluntariness first. [ 3 ] The accused, quite properly, does not suggest these statements were not freely given in the traditional sense of the voluntariness rule.

That is because the accused simply made the utterances without questioning from the constable, and there were no hints from the officer of any promises, threats, inducements, quid pro quos or oppressive circumstances which in any way could have impacted on the accused's decision to freely decide whether or not to make the various statements. [ 4 ] Rather, the accused submits the statements have not been proven voluntary because the officer did not make a reliable, accurate reporting of the accused's utterances. I do not agree with this submission.

It is always advisable for police officers to audio record all of their dealings with an arrested accused, even when it is not expected the accused will say something. In that way there will be an actual recording of the words spoken by the accused and the officer. However, it does not follow that all statements from an accused will not be proven voluntary unless they were audio recorded. [ 5 ] In this case, Cst. Johnston did not audio record the accused's utterances made during the drive from the scene to the detachment, and while at the detachment.

However, he made entries in his notebook a few hours later, recording his best recollection as to what the accused said. Some criticism can be levied against the officer for the inconsistencies that exist between his notes and the two Reports to Crown Counsel he prepared after those notes; however, it would not be unusual nor overly concerning for the officer to have fine-tuned or expanded upon what is in his notes when writing his reports.

Moreover, while there are some inconsistencies, there is considerable consistency between the notes and the reports. [ 6 ] The officer's reporting of the accused's utterances does not purport to be a verbatim account of what the accused said, nor the order in which he said them.

Obviously these shortcomings will likely impact the ultimate reliability of the constable's recording of the accused's statements, but that is no different from most other occasions of this nature where an officer is relying on his memory of an accused's statement recorded subsequently in his notes and not by audio equipment. [ 7 ] In this case, I find the constable's recording of the accused's statements to be sufficiently accurate and reliable so as to allow me to conclude they have been proven voluntary beyond a reasonable doubt.

The ultimate reliability of these statements will be a matter of weight, an issue upon which the parties will be able to make submissions. [ 8 ] The accused also suggests the prejudicial effect of these statements, due to their unreliability, outweighs their probative value such that I should exercise my discretion and exclude them on that basis. Without the benefit of full submissions on the use I should make of the accused's statements, it is somewhat difficult, at this stage, to make this determination.

I am obviously not dealing with a jury where there is arguably a greater risk of improper use of statements from an accused. Moreover, I am well aware of the reliability issues with this evidence which does, admittedly, create some prejudicial effect. However, at this point there is also some probative value to these statements in relation to what the accused was doing, and his state of mind, some of which could be viewed as favourable to the accused.

At this stage there is both prejudicial effect and probative value to the accused's statements, but in my view, that prejudicial effect does not outweigh the probative value to the extent I feel inclined to exercise my discretion and exclude this evidence. [ 9 ] I turn to the accused's s. 10(

b) Charter arguments, all of which focus on the implementational component of that right. [ 10 ] In the circumstances of this case, I do not find Cst. Johnston breached the accused's s. 10(

b) right by failing to provide him with access to counsel at the scene of the collision. On the evidence, the accused did not establish a working cell phone was even available for the accused to use at the scene. Cst. Johnston did not have one, and he was unsure, prior to leaving the scene, whether he knew Cpl. Davies or the accused had one. Moreover, the accused did not indicate he wished to speak to any specific counsel, and it was not clear on the evidence if Cst.

Johnston knew or could have reasonably located the number for Legal Aid so as to present the accused with options on which counsel he could consult at the scene. Furthermore, while Cst. Johnston was asked about safety or security concerns in relation to the accused, he was never confronted with why he did not provide the accused with a cell phone to consult counsel at the scene.

In the circumstances, I am not prepared to draw any inferences or conclusions, adverse or otherwise, without the officer having had the opportunity to explain why he did not do so, particularly when there may have been valid reasons for it. Lastly, the law recognizes that providing access to counsel can be delayed where it is neither reasonable nor practical for the police to implement access to counsel at the scene ( R. v. Ashby , 2013 BCCA 334 at para 67 to 74 ).

Given the chaotic situation present at the collision, the desire and benefit to the accused of removing him from the scene to access counsel in a more appropriate environment, and for some of the reasons I have previously identified, I conclude it would not have been reasonable or practical for Cst. Johnston to have ensured the accused had access to a cell phone so as to be able to contact counsel at the scene. [ 11 ] I am also not able to find Cst. Johnston breached the accused's s. 10(

b) right by questioning the accused during the drive to the detachment after the accused had requested to consult counsel but had not yet done so. The evidence simply does not establish the constable questioned the accused about the collision at any time prior to the accused speaking with counsel. Cst. Johnston acknowledged that he may have made a brief comment or remark to the accused, but those were not questions but rather responses to something the accused spontaneously said to the officer. Cst.

Johnston was aware the accused had expressed the desire to consult counsel and he testified he respected that desire and right by not questioning or attempting to question the accused until after he had spoken with

counsel. I accept the constable's testimony on this point, as I do all of his evidence. [ 12 ] I am also not able to conclude Cst. Johnston breached the accused's s. 10(

b) right by directing the accused to call Legal Aid because the evidence does not establish the officer did such a thing. The constable advised the accused of his right to counsel, including his option to call any lawyer he wished. The accused understood this right, as well as his right to silence when also advised of that. When the accused indicated he did not know of or have a lawyer to consult, Cst. Johnston asked the accused if he wanted the officer to place a call to Legal Aid for him. The accused answered in the affirmative, and the constable placed the call to Legal Aid.

A few minutes later the accused then spoke to a Legal Aid lawyer for five minutes. The accused understood the advice he received because he declined Cst. Johnston's subsequent request to provide a statement. The evidence simply does not establish the constable directed the accused to call Legal Aid, nor that he interfered with the accused choosing what counsel to consult. The officer did not provide the accused with a legal directory to review, but the law does not require that he do so ( R. v. Laird , 2004 BCCA 74 , affirming 2003 BCSC 90 , R. v. MacLeod , 2011 BCSC 1812 , and R. v. Richards , 2012 BCSC 522 ).

The accused was aware he could call any lawyer he wished. He never expressed a desire to call any specific lawyer and the officer merely offered to call Legal Aid for him. The officer did not direct the accused to Legal Aid as his only option, nor do I find that the constable's actions had the effect of doing so. Cst. Johnston did not breach the accused's s. 10(

b) right in this regard. [ 13 ] Lastly, I do not find the length of delay between the accused's arrest and speaking to counsel amounted to a violation of his s. 10(

b) right. The accused was arrested at 6:34 a.m. but he did not actually begin speaking to counsel until 7:24 a.m. However, many events happened during this period, including advising the accused of his rights, escorting him to Cst. Johnston's vehicle some distance away, conducting searches of the accused, transporting the accused to the detachment, allowing him to use the washroom, placing a call to Legal Aid, and waiting for Legal Aid to call back. All of these events adequately and reasonably account for this passage of time.

They were necessary to enable the accused to speak with counsel in a meaningful way, and the constable proceeded efficiently and reasonably in ensuring the accused was able to do so. The accused's right to consult counsel without delay was not violated by the officer. [ 14 ] The accused has not established his s. 10(

b) right was breached by the police in this case, and the Crown has proven the voluntariness of the accused's statements to Cst. Johnston beyond a reasonable doubt. Those statements are therefore admitted into evidence in the trial proper, as is all the testimony heard in the voir dire . (RULING CONCLUDED)