Her Majesty the Queen - v. -, 2016 SKPC 76

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 076 Date: May 20, 2016 Information: 43176155 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Landon Henry Letendre Appearing: Mr. W. Collins For the Crown Mr. P. McDougall For the Accused DECISION ON VOIR DIRE B.G. MORGAN , J Introduction [ 1 ] Mr. Letendre is charged with a number of offences arising out of the events of January 26, 2015, at a housing complex in Saskatoon, Saskatchewan. In brief, the Crown’s theory is that Mr.

Letendre, among other things, discharged a firearm through the door of a residence. Mr. Letendre declined to provide an inculpatory statement during a warned interview, although almost immediately afterwards, in the company of Sergeant Kiesman and Constable Foquette, he allegedly volunteered further information which implicates him in the shooting. This voir dire is to determine the voluntariness of both the warned audio/videotaped statement (the first statement),

for the purposes of potential cross-examination, as well as the voluntariness of the second statement (the oral statement), which the Crown seeks to admit as evidence on the trial proper. Positions of the Parties The Crown [ 2 ] Mr. Collins agrees that the the Crown must prove beyond a reasonable doubt that a statement by an accused to a person in authority is voluntary. That requires there be no promises, threats, oppression, or trickery, as well as proving that the statements were the product of an operating mind. Mr.

Collins argues that those tests are met in this case, and there is no evidence to contradict what the police say occurred (as is his right, Mr. Letendre chose not to testify on the voir dire ). [ 3 ] Mr. McDougall argues that, in all these circumstances, one cannot say true voluntariness has been proven. He argues that there were inducements or promises made during the first interview, that there are contradictions in some things the officers said occurred, and he questions why there is no recording of the oral statement. [ 4 ] I have briefly outlined the main arguments only to put matters into context.

I will now go through the circumstances in more detail, before addressing the arguments raised. As the case is not complete, I will refrain from dealing with the details of the case beyond what is necessary to decide this matter. The First Statement [ 5 ] Sergeant Andrew Kiesman knew that Mr. Letendre’s vehicle had been used, and had reason to believe that Mr. Letendre himself was involved in the shooting. The vehicle had been seized as part of the investigation, and Mr. Letendre had made several calls to the police requesting the return of his vehicle, calls which were referred to Sergeant Kiesman.

On February 2, 2015, by prior agreement between the two, Mr. Letendre came to the station to speak to Sergeant Kiesman about the return of the vehicle. Upon his arrival, Sergeant Kiesman arrested Mr. Letendre, gave him his Charter warning, and arranged for a call to counsel, following which Mr. Letendre was escorted to an interview room on the third floor. [ 6 ] Constable Daniel Zimmer was present by pre-arrangement when Sergeant Kiesman arrested Mr. Letendre, as Sergeant Kiesman wanted to have a “uniform presence” at the time of the arrest. I accept Cst.

Zimmer’s evidence that during the brief time he accompanied the two between the arrest site and the interview room, he did not hear any threats or promises being made by Sergeant Kiesman, and nothing out of the ordinary occurred. Although Cst. Zimmer did not have detailed recollection of matters, that is hardly surprising as he had such brief involvement in things. [ 7 ] Sergeant Kiesman conducted the interview, and Constable Fouquette monitored it from another room. At the outset of the interview, all three of Mr.

Letendre, Constable Fouquette, and Sergeant Kiesman were in the interview room, while Constable Fouquette went over what he referred to as the KGB form, referring to a typed Consent for Statement Under Oath. The form was read by Cst. Foquette while Mr. Letendre also viewed it; the form pointed out that the statement will be videotaped, that it is an offence to obstruct justice or commit public mischief by making a false statement to police during an investigation, and refers to sections of the Criminal Code dealing with recanting statements, fabricated evidence, et cetera. This form was signed by Mr.

Letendre before the interview itself began with Sergeant Kiesman. [ 8 ] It is clear from a viewing of the videotape of the interview that this consent form was fully explained, and Mr. Lentendre answered in the affirmative to each of the questions as to whether he understood the criminal consequences of making a false statement, whether he understood that he had the right to choose whether or not to make a statement, and whether he understood that the statement would be videotaped under solemn declaration.

When asked the question “do you choose then to give a statement?”, he replied “No I don’t”, explaining that he has a disease that takes away his ability to make a statement and making some other comments about having memory problems. Mr. Letendre then signed the solemn declaration confirming that “I make this declaration conscientiously believing

it to be true, and knowing that it is of the same force and effect as if made under oath”. That is witnessed by Constable Fouquette, who then left the room. [ 9 ] When the parties are first seen in the interview room, Mr. Letendre is, if not jocular, certainly relaxed, and exhibits no signs of trepidation whatsoever. [ 10 ] Sergeant Kiesman started the interview by delving into this alleged medical issue, to which Mr. Letendre, among other things, talks of having “extremely high ammonia levels” that causes him to forget things. [ 11 ] Mr.

Letendre does comment during the interview that “...under doctor’s orders I should not be speaking”, although that does not prevent him from doing precisely that. He also states that “If my lawyer sees this he’ll kill me”, no doubt alluding to having received legal advice not to say anything. Overall, he does not implicate himself. [ 12 ] Sergeant Kiesman is not threatening in any way, nor is he impolite or sarcastic. He is, however, certainly persistent, and not easily distracted from his mission, which as he put it, “is to find out the truth of what happened”.

When queried as to whether or not any red flags were raised, so to speak, when Mr. Letendre stated at the outset of the statement that “that’s where I have problems . ....I can’t make my own decisions”, Sergeant Kiesman testified that he believed the accused was lucid enough to speak to him, that is, that he came to the conclusion that there was no medical issue that acted as an impairment to Mr. Letendre being able to communicate and decide to give a statement. Further, some of the things said by Mr. Letendre led Sergeant Kiesman to conclude that there were no problems with Mr.

Letendre’s memory. [ 13 ] The interview is lengthy and wide-ranging, and as Cst. Foquette, who was monitoring the interview from another room put it, not much was being said about the crime. It was apparent that Mr. Letendre was not going to provide an inculpatory statement, and he was very clear in stating that he did not want to talk, that his lawyer had told him not to talk, and that he wasn’t going to give a statement. Sergeant Kiesman was continuing, within proper limits, to try to persuade Mr. Letendre to give a statement. Ultimately, the interview ended after some two hours and seven minutes, when Sgt.

Kiesman called a halt to things as he was not making any real progress with Mr. Letendre. The Evidence Respecting the Oral Statement [ 14 ] As soon as the first statement was concluded, Sergeant Kiesman and Cst. Foquette escorted Mr. Letendre to the detention area, stopping along the way to give him a chance to use the washroom. Sergeant Kiesman testified that while en route , Mr. Letendre volunteered that “I’d like to speak to you off the record”.

Sergeant Kiesman, thinking that this might have something to do with matters outside this immediate investigation, perhaps pertaining to the drug trade, didn’t deter Mr. Letendre (there were overtones of drugs in this case, and Sergeant Kiesman, just having transferred out of the Drug Section, had experienced this type of approach before). However, Sergeant Kiesman testified that Mr. Letendre started talking about the shooting, and he immediately stopped him, told him he would have to record this, and advised him that the warnings from the first statement were still in effect. Mr.

Letendre allegedly acknowledged that fact, and as all three walked down the stairwell and into an interview room in or near the detention area three floors down, Mr. Letendre gave an inculpatory statement. [ 15 ] According to Sergeant Kiesman, Mr. Letendre said that he was in the vehicle when it was on the way to the site of the shooting, sleeping in the back, and then said that he was driving. He then started talking about various rounds of ammunition that he kept in the vehicle, along with a shotgun. Mr.

Letendre said he fired the shots, and that he and the others had gone to the victim’s house to settle a score. [ 16 ] It was at this point that Sergeant Kiesman testified that he suggested to Mr. Letendre that they go back on video, but Mr. Letendre did not want to do that, as he was not interested in being a rat, and was hungry, and wanted to go back to his cell. Sergeant Kiesman was firm throughout that Mr. Letendre did not want to go back on video, and when asked why he didn’t stop asking him questions, he stated that it was because Mr.

Letendre was the one who wanted to talk. [ 17 ] When asked if he made documentation of these comments, the officer testified he made limited notes as he didn’t want to

stand there taking notes while Mr. Letendre was speaking, so he summarised his notes later. When asked in cross-examination if it madeany sense that Mr. Letendre was so reluctant to speak during the first statement, and then essentially started to talk as soon as that wasover, Sergeant Kiesman replied that he had seen this happen before. He said his impression of Mr. Letendre while they were in theinterview room was “that something was eating at him”.

So, when he opened up in the stairwell, the officer was not surprised by that. [18] Constable Fouquette’s involvement in this oral statement was somewhat limited, as he was not the investigating officer andwas at this point acting as an escort. He generally confirmed what Sergeant Kiesman said that Mr. Letendre said. He said that whatoccurred was that Mr.

Letendre asked Sergeant Kiesman if they could be off the record, to which the Sergeant replied that they could beunless it was about this case, in which case the same warnings would apply. [19] On the issue of why they didn’t return to the video room to record the oral statement, Constable Fouquette said they askedhim to go up and put it on video, but that Mr. Letendre replied that he was tired and not feeling well. According to Constable Fouquette,the room that they were in had video and audio capabilities, although it was not turned on.

When asked why that was the case, he saidhe did not know. [20] Constable Fouquette made notes afterwards ( he felt within an hour or two), and testified that he had no discussion withanyone about what to put in the notes that he made, that no one helped him, and that he did review the notes prior to testifying. [21] Both officers testified that there were no promises, threats, or inducements made by either of them. [22] When questioned as to Mr. Letendre’s demeanor, Cst. Foquette stated “he seemed like he wanted to get something off hischest . . . he seemed to be worn down”.

When asked if he had any concerns about Mr. Letendre’s comprehension or understanding of hissituation when he spoke, he testified that “he understood. . . Kiesman told him twice anything he said could be used in court”. Decision [23] Although there were two statements, they are so close in time that while both have to be looked at individually, they have tobe looked at together to appreciate the context.

I will start with the first statement. [24] The leading case on statements is R v Oickle, [2002] SCR 3, 2000 SCC 38 , which extensively reviewed theevolution of the law of statements made by an accused, and explains the rational for ensuring that there are no threats, etc, and that thestatement is the product of an operating mind.

These have to be established by the Crown beyond a reasonable doubt in order toestablish that the statement is voluntary. [25] With respect to the operating mind issue, that is dealt with in para 63 of Oickle which, citing an earlier decision, notes that this“does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officerswho can use it to his detriment”. [26] I am satisfied this test is met on the first statement. Although Mr. Letendre said that he should not be speaking, he did speakfor over two hours, and he knew what he was doing.

Sergeant Kiesman satisfied himself that there appeared to be actual impediments toMr. Letendre’s ability to meet this leg of the test. The officer was clear, and I accept his evidence on this, that it is not unusual fordetainees to offer up reasons why they should not or could not provide a statement, so the comments of Mr. Letendre respecting hisalleged inability and/or reluctance to talk are of no moment.

There is no doubt he knew he was talking to the police, and he knew thatwhat he said could be used to his detriment. [27] With respect to question of threats, promises, etc, one of the main concerns of the defence is that Sergeant Kiesman referredto “speaking to the prosecutor’, the argument being that this was either an inducement or a promise.

[28] As to this statement being an inducement, Oickle notes at para 57 that inducements are not improper unless, “whetherstanding alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of thesubject has been overborne”. In short, they have to actually induce. In this case, that statement about talking to the prosecutor cannot beseen as an actual inducement: had I found that it was, it did not have any effect on making Mr.

Letendre speak. [29] As for promises, Oickle notes in that same paragraph that “the most important consideration in all cases is to look for a quidpro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise”. Had Sergeant Kiesman offered totalk to the prosecutor and get a reduced sentence in exchange for a confession, that would be a promise.

But that is not what happened. [30] The Crown has established beyond a reasonable doubt that the first statement is voluntary. [31] Turning to the oral statement, the defence finds fault in the fact that it was not audio or video taped, in circumstances where itcould have and should have been. Mr. McDougall relies among other things on the case of R v Moore-McFarlane, (ON CA), 2001 Carswell Ont 4242 (CA). In that case, a statement ruled voluntary on a voir dire at trial was found to be otherwise bythe Court of Appeal, the matter being sent back for a new trial.

The Court of Appeal was concerned, among other things, with thereliability of the record itself, as well as the officer’s decision not to videotape the interview, all leading to the conclusion that the Crownhad failed to prove voluntariness. Mr. McDougall relies partly upon para 65 of Moore-McFarlane, which reads as follows: However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onusmay be readily satisfied by the use of audio, or better still, video recording.

Indeed, it is my view that where the suspect is in custody,recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to themaking of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect.

In such cases, it will be amatter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or videotape record has beenprovided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. [32] The Crown counters with the case of R v Young, 2006 Carswell Ont 7279 (SCJ), in which the same type of situationdeveloped, the difference in Young being that the police thought that they needed consent to videotape. As pointed out in para 22 of thatdecision, “when Mr.

Young refused to be videotaped, there was no obligation on the officers to discontinue their interview”. [33] It would not be accurate in this case to say that the police gave no thought to having the statement video and audio recorded,and there is no rule that says that a statement taken in police custody must be audio and/or video recorded: there are countless potentialscenarios and circumstances in which individuals, some of whom may turn out to be suspects, engage in conversation with the police,making it impractical to lay down hard and fast rules.

In all cases, it is the circumstances of each individual situation that must beexamined. [34] However, numerous cases, Young and Moore-McFarlane included, speak to the obvious desirability of having statementsaudio and video recorded. This allows a court to see and hear the interaction between the police and the detainee, as was the case withthe first statement dealt with in this decision. [35] Looking at this situation in context, then, I start by agreeing with Mr.

Collins for the Crown that there is, on the evidencebefore me, nothing to contradict the evidence of each of Sergeant Kiesman and Constable Fouquette that no threats, promises, et ceterawere made to Mr. Letendre respecting this oral statement. Prima facie at least, that appears to be the case. [36] Similarly, for the reasons I gave earlier with respect to the first statement, I have no doubt that Mr.

Letendre was possessed ofan operating mind within the concept of Oickle. [37] However, I remained concerned about certain aspects of this oral statement [38] In R v Scharf, 2013 SKQB 327, Danyliuk, J dealt with the question of how “complete a record of the accused’s statement, and

the circumstances surrounding the making of same, must be led by the Crown so as to establish the voluntariness of that statement” (para26). As pointed out in that paragraph, questions regarding the “accuracy of a verbal statement by a police officer tend to relate to thestatement’s authenticity, rather than its admissibility”. In that case, Mr. Justice Danyliuk was dealing with a case in which the policeofficer agreed that his notes recorded only “snippets” of the actual statement.

Although that is not the identical situation here, theconcern respecting the completeness of the record of what transpired remains. [39] Mr. McDougall argues strenuously that Sgt. Kiesman’s notes are incomplete, as they do not provide anything resembling averbatim account of what occurred. I accept Sgt. Kiesman’s response that his notes are not meant to be a transcript; rather, they aremeant to trigger his memory. As he noted, they were in a stairwell, and he did not want to, nor could he, makes notes as he walked. Thatis understandable.

However, the issue goes somewhat deeper than that. [40] As noted in Scharf, “...the incompleteness of the statement itself does not render in inadmissible per se. However, that alsodoes not provide a complete and universal answer to the question of voluntariness, which is a prerequisite for admission into evidence. Within this other context (voluntariness), our courts have long recognized that the Crown must adduce a sufficient record of theinteraction between the accused and the police.

If not, the Crown has not discharged its onus of showing voluntariness and, therefore,admissibility” (paras 27 and 28). [41] Scharf undertakes a detailed analysis of this issue at paragraphs 25 through 34. Although it is generally true that the questionsof weight and admissibility are two separate matters, the case makes clear that “the assessment of the sufficiency of a statement is notalways a matter left for the trier of fact to determine as an issue of weight.” (para 30). The record must be adequate as to all thecircumstances surrounding the taking of the statement as a pre-condition to admissibility.

Danyliuk, J, cites the case of R v G.C., 2013ONSC 2929 as an example of a case in which in refusing to admit utterances made by an accused after the recorded statementhad been concluded, the court did so “relying upon the inadequate record of same and the lack of explanation as to why those statementshad not been properly recorded”. I find this is such a situation. [42] The general tenor of Sergeant Kiesman’s evidence respecting this oral statement was that it should be recorded, in fact wouldbe recorded. When Mr. Letendre started speaking, Sergeant Kiesman’s response was “I’ll have to record it”.

He stated that it was veryimportant that this be obtained on video. Later, he testified that he told Mr. Letendre that anything further the latter said would have tobe recorded in the officer’s notes. Yet such a record was not made. [43] I will start with the question of why the interview was not audio and video recorded. At one point Sgt. Kiesman testified thatit was not recorded “because [Letendre] did not want to”. He also said during cross-examination that it was not recorded for Mr.Letendre’s own protection, in that Mr.

Letendre was afraid to give the information, that it would not be wise for his own safety. Yet it isobvious that if this evidence is admitted, whatever Mr. Letendre may have said would be on the trial record. How does failing to audioand/or video record it change that? [44] It is also apparent from the evidence of both Sergeant Kiesman and Constable Fouquette that, although the conversationstarted in the stairwell, at least a substantial portion of it took place in an interview room in the detention area. Cst.

Foquette testifiedthat “we took him to an interview room in the cell block area where he continued to talk”, referring to the time immediately after Mr.Letendre started to disclose information, and as far as Cst. Foquette was concerned, “to me it was an extension of the interview”,referring to the first one. [45] With respect to the oral testimony of the officers providing a record of what transpired, I have concerns as to the accuracy ofwhat was said. I accept Sgt.

Kiesman’s evidence that his notes are made for the purposes of refreshing his memory; and that he does notmake notes intending them to be a verbatim transcript. However, he referred to making “limited documentation”, and although hetestified that he made his notes “within a couple of hours afterward”, he also referred to some of his notes being made “within areasonable time”, and some being made “within a day or two”, although he agreed that latter estimate could possibly have been three orfour days. There is no doubt that the officer does not recall all that was said: when queried as to whether Mr.

Letendre said anything elseabout the shooting, he replied “As I sit here, I do not recollect”. [46] Constable Fouquette, although not the lead investigator, made a record of what was said within a couple of hours, andgenerally speaking, his version of what was allegedly said by Mr. Letendre reasonably mirrors that of Sergeant Kiesman. However, I do

not place great reliance on his evidence, due to the nature of his role and the length of time that has passed since this conversation was held. I note that he initially testified that he was not in the room with Sgt. Kiesman and Mr. Letendre during the first statement, although as soon as he was shown the video of him reading the form to Mr. Letendre, he did recall being there. This is not to suggest that Cst.

Foquette was being deliberately untruthful or misleading; rather it serves to demonstrate the initial minimal nature of his involvement, and his recollection of events of that day. [ 47 ] I remain in doubt as to how complete the evidence is as to what was said. It is not clear on the evidence precisely what was said, where it was said, and how long the conversation went on for. Sgt. Kieman testified that some of the things Mr. Letendre allegedly said were in response to questions from him seeking clarification, but it is not clear what parts of the conversation this was in reference to.

Although I may well have more than a “snippet” of conversation, the lack of a more detailed record of what occurred makes that impossible to ascertain. [ 48 ] There are also minor inconsistencies. Sgt. Kiesman testified that Mr. Letendre declined the offer to go back on video, stating he didn’t want to be a rat, that he was hungry, and that he wanted to go back to his cell. Constable Fouquette testified that the officers asked Mr. Letendre if he wouldn’t mind going back upstairs to get this on video/audio, but that Mr. Letendre stated he was tired, not feeling well, and “basically didn’t want to do it”.

Minor discrepancies, to be sure. But what was the need to go back upstairs, as by this time, they were in a room that would have allowed video recording? [ 49 ] As pointed out in Scharf , there is an obligation for the police to “properly record what was happening”. That is a precondition to admissibility.

While the officers may believe they have recorded the important parts, that does not necessarily mean that the court or the accused would take the same view. [ 50 ] I find that there has been no satisfactory reason given as to why this oral statement was not recorded, whether by recording equipment that was readily available, or through detailed and contemporaneous notes as to who said what, what was asked, etc. Again, the law does not require that a statement taken in police custody must be recorded, but I find that I do not have a sufficient substitute for a recording to satisfy me as to voluntariness.

It is the Crown’s obligation to prove voluntariness beyond a reasonable doubt. Based on the record that has been provided of this oral statement, I have a considerable doubt as to the voluntariness of this statement, and as such I am not allowing it into evidence at the trial proper. __________________________ B.G. Morgan, J