R. v. Zaron, 2022 BCPC 152

Citation: R. v. Zaron 2022 BCPC 152 Date: 20220310 File No: 238107-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. HOWARD BOYD ZARON RULING OF THE HONOURABLE JUDGE J.G. COHEN Counsel for the Crown: Ms. S. Gill Counsel for the Defendant: Mr. N. Preevolos & Mr. D. Milburn Place of Hearing: Surrey , B.C. Dates of Hearing: March 1, 2, 3, & 4, 2022 Date of Ruling: March 10, 2022

Introduction: [ 1 ] This is the court’s ruling on the admissibility of a statement taken by an officer from the defendant at the police detachment after the defendant had been arrested in this case. The factual background: [ 2 ] The accused stands charged with one count of Possession for the Purposes of Trafficking of cocaine. [ 3 ] He was observed driving to and then participating in several brief duration meets consistent with illicit drug sales of the dial-a- dope type. On the last of those, the other person, not the defendant, was arrested after the meet.

He was found to have one flap (.8 grams) of cocaine. [ 4 ] The police had been targeting the defendant and so were of the opinion that he was the one who had made the sale of this flap of cocaine to the person they had just arrested. [ 5 ] On the basis of their investigation, their observation of the short duration meets and the final arrest of someone who seemed to have made a fresh purchase from the defendant, the police arrested the defendant and took him to the detachment. [ 6 ] After the arrest, the police conducted a search of the defendant’s home under the authority of the search warrant issued by a Judicial Justice.

The search of the home took place in the early evening hours. [ 7 ] The items seized as a result of the search included: 1. two small digital weigh scales with residue of cocaine on them; 2. a large number of pieces of paper referred to as lotto papers suitable for, among other things, creating folded pieces of paper called flaps for storing and selling small quantities of powdered drugs; 3. a supply of small empty plastic bags approximately 2.5 centimeters by 5 centimeters suitable for, among other things, packaging drugs; 4. several samples of white powder residue, some of which tested out using a NIK test likely as cocaine; and 5. a memo book containing information that is believed to be a score sheet (list of sales). [ 8 ] Two small vials of liquid (probably steroids) and some syringes were also found in the home but no charges related to those vials were instituted. [ 9 ] As further background, the defendant is a local well-known hockey coach.

At the time of his arrest on that day, he could be said to be a person of high standing in the community with a reputation to protect. [ 10 ] After the home search was concluded the main officer returned to the detachment and conducted an interview of the defendant. [ 11 ] The officer was in plain clothes and the interview was in a somewhat informal setting. [ 12 ] The officer made this introductory statement before taking any information from the defendant: Grab a seat over there. My name is … but you can just call me Cody, and obviously I work in the drug

section here. Um, and before we talk um just a reminder that you are not obligated to say anything okay and anything you do say may be given in evidence, this whole room is audio and video recorded. Um and if anybody made any sort of promises to you in the entire time that you’ve been here, you’re to disregard them.

The idea is that anything we talk about moving forward is that it’s voluntary and it’s because it’s information you wanna disclose, okay. [ 13 ] This is a very good example of the sort of introduction that should be used in this sort of an interview. [ 14 ] However, the officer continued his introductory remarks by saying the following: Um not really here to – really I’m here more or less just to kind of clear up the air about who you are right.

The way I look at it right now is there’s two ways that we can kind of make you out right, we can make you out to be a real bad dude who hangs out with bikers, sells coke to teenagers playing football and feeds them steroids, or we can make you look like a community oriented football coach who is basically trying to fund his lifestyle so that he can basically just coach football right, you’re just making, doing it to make ends meet right. [ 15 ] When asked in cross-examination if the officer had any evidence of the defendant selling cocaine to teenagers, feeding steroids to teenage football players or hanging out with bikers, the officer had to admit that he did not.

The closest he could come to supporting any of those statements was to say that he had seen an old photograph of the defendant and in that photograph was another person who is a biker. [ 16 ] The statement taken at that interview was tendered in evidence against the defendant in this trial as it contained inculpatory remarks. [ 17 ] It is tendered as a confession.

Test for admissibility of a statement made by a defendant: [ 18 ] A voluntary statement which contains a confession is admissible in court against the person who made it so long as the confession was given ‘voluntarily’. [ 19 ] For a confession to be voluntary, it must be given by a defendant under circumstances that show that the defendant was not forced to confess through, for example, threats, violence or threats of violence (implied or obvious).

Further, that the defendant was not enticed to confess on the basis that doing so would decrease their jeopardy or gain them some benefit. [ 20 ] This is a very old rule that one would hope by now would be well understood by police officers who attempt to get a defendant to confess. [ 21 ] The burden of proving that the confession was given voluntarily rests on the Crown and the burden is one of ‘beyond reasonable doubt’.

Analysis: [ 22 ] In this case, the Court finds that the officer’s opening statement to the defendant contained a veiled threat to the defendant’s reputation; specifically when the officer suggested to the defendant that failure to cooperate would result in a smear campaign. [ 23 ] Further, the officer immediately followed up this veiled threat by holding out a hope of advantage to the defendant for a confession specifically by implying that the giving of a confession would permit the police to characterize his involvement in this criminal activity as something more akin to a good person who made some bad choices rather than a “bad dude”. [ 24 ] Both such statements have been forbidden since the confession rule was first stated. [ 25 ] Did the defendant hear those statements as threats and enticements?

From his response to the officer, it seems that he did. Ruling: [ 26 ] Based on all of the evidence before me, I rule that the Crown has failed to meet the obligation of proving beyond a reasonable doubt that this statement was obtained without threat of harm or hope of advantage and this statement is therefore not admissible in court against the defendant as part of this case. _____________________________ The Honourable Judge J.G. Cohen Provincial Court of British Columbia