R. v. Vaccher, 2022 BCPC 227

Citation: R. v. Vaccher 2022 BCPC 227 Date: 20220908 File No: 30554-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. MICHAEL LAWRENCE VACCHER RULING ON VOIR DIRE #1 OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: C. Coulson Counsel for the Defendant: G. Grewal Place of Hearing: Prince Rupert , B.C. Date of Hearing: September 6, 2022 Date of Judgment: September 8, 2022 [ 1 ] THE COURT: Michael Lawrence Vaccher is before the court on an allegation that on September 17, 2020, at or near Prince

[1] THE COURT: Michael Lawrence Vaccher is before the court on an allegation that on September 17, 2020, at or near PrinceRupert, British Columbia, he did obstruct or hinder fishery officers carrying out their duties, contrary to s. 62 of the Fisheries Act, andthereby did commit an offence pursuant to s. 78(

a) of the Fisheries Act. [2] This is my ruling on voir dire number one which deals with a statement given by Mr. Vaccher to Fishery Officers Farrington andAdams, overheard by Fishery Officer Risto, concerning an interaction that Mr. Vaccher had with the fisheries officers on the ocean at ornear Hunts Inlet on September 17, 2020. [3] The prosecution called three witnesses during the voir dire. The defence elected to call no evidence. [4] At common law all statements made to a "person in authority" must be proven by the prosecution to be voluntary before thestatement is admissible at trial.

We call this the confessions rule. [5] The finding of voluntariness must be made through a voir dire on a standard of proof beyond a reasonable doubt. In the presentcase, at the time of the statement in question, Vaccher was a suspect in the alleged violation of the Fisheries Act. Officer Farrington wasof the view that Vaccher may have been illegally fishing for, or in possession of, abalone and/or clams, contrary to the Fisheries Act.

Accordingly, the onus is on the Public Prosecution Service of Canada to prove beyond a reasonable doubt that the statement made byVaccher was voluntary. [6] The statement made was a response to a question asked by Officer Farrington as soon as she boarded his skiff, which was, "Whatwas dumped overboard?" She asked the question because she saw him place a mesh sack, teardrop in shape, overboard, as well as abucket that she testified to was black and something was poured out, some kind of substance which she thought could be abalone and/orclams. [7] The response by Mr.

Vaccher was, “rockfish, fileted rockfish that I did not want any more.” That is the only statement that thisvoluntariness voir dire is concerned with. [8] The voluntariness of a statement is determined by considering four factors, 1. threats or promises; 2. oppression; 3. operating mind; and 4. police trickery. [9] The leading case on voluntariness is the Supreme Court of Canada's decision in R. v. Oickle, 2000 SCC 38, and that is followedby the Supreme Court of Canada decision in R. v. Paterson, 2017 SCC 15.

As stated by Justice Brown for the majority in Paterson, atparagraph 14: The law's concern for "voluntariness" in relation to police investigative techniques is embodied in the confessions rule.

That ruleprohibits the admission at trial of statements made by suspects to police or to other persons in authority, unless the Crown proves beyonda reasonable doubt that such statements were voluntary… The Crown's burden -- which is identical to its burden in respect of theaccused’s guilt itself -- highlights that the rule is linked to the law's concern that involuntary statements are "unreliable as affirmations ofguilt"… As this Court recognized in Hodgson, statements obtained by force, threat or promises are inherently unreliable.

Paragraph 15: The Court has also recognized, however, that concern for the untrustworthiness of involuntary confessions does not entirely capture therationale for excluding evidence caught by the confessions rule. In R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, the rulewas said to rest on fundamental notions of trial fairness and (at p. 173) "the idea that a person in the power of the state's criminal processhas the right to freely choose whether or not to make a statement to the police", coupled with a "concern [for] the repute and integrity ofthe judicial process".

Those same concerns, the Court added (at p. 175), underlay the privilege against self-incrimination, and supportedrecognition of a detainee's right to silence as a principle of fundamental justice under s. 7 of the Charter. "Voluntariness" then, as aconcept designed to limit the scope of police investigative techniques, has been broadly associated with the principle that the Crownmust, to maintain the repute and integrity of the trial process, establish guilt without the assistance of the accused.

And paragraph 16: The foregoing explanations for the confessions rule are not neatly encapsulated and, as the Court has observed more than once, "arationale for the confessions rule extending beyond trustworthiness has not always been easy to locate (R. v. S. (R.J.), (SCC), [1995] 1 S.C.R. 451, at para. 73; Hodgson, at para. 23).

It suffices here to observe that the Crown must prove the voluntarinessof an accused's statement before it can rely upon that statement at trial as supporting a finding of guilt, and that this rule applies to ensuretrial fairness and to preclude conviction of an accused based upon compelled and as such inherently unreliable evidence. [10] Justice Buckle in R. v.

MacIntosh, 2021 NSPC 46, explains as follows. [6] Broadly defined, a voluntary statement involves an exercise of free will by a person who makes an informed and meaningfulchoice to speak. [7] The factors traditionally considered are whether there were threats, promises, oppression, inappropriate police trickery andwhether the confession was the product of an operating mind.

However, in Oickle, the Supreme Court of Canada confirmed that theassessment of voluntariness is "contextual" and no "hard and fast rule" can "account for the variety of circumstances that could vitiate thevoluntariness of a confession"… A judge must consider all relevant factors and "strive to understand the circumstances surrounding the

confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness….” ( Oickle , at para. 71 ). [8] The ultimate question is whether a specific factor, alone or in combination with other factors, "are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne" ( Oickle , at paras. 57-58 ). [ 11 ] The thrust of defence counsel's argument in the present case is twofold: 1. Vaccher had not been provided with his Charter rights and, therefore, he did not understand that he had the right not to speak to the fisheries officers; and 2.

Given the very presence of the fisheries officers, a reasonable person would have felt that they had no choice but to answer the question. [ 12 ] In light of how defence counsel has framed the issues, and looking at the specific factors engaged in this case, I have assessed the factors in the broader context which includes the evidence of all three witnesses and the reality that this was a fishing interaction. [ 13 ] I am in agreement with the prosecutor that this was an inspection, not an investigation.

However, as I pointed out in my questioning and commentary with the prosecutor, the Nichols [phonetic] decision, the Dyer decision and the Rice decision all deal with Charter issues, not voluntariness issues. [ 14 ] In this particular case what happens is actually very straightforward, not complex, and it happened really quickly. The officers rolled up in their vessel. They came in beside Mr. Vaccher's skiff, having observed actions that they thought were consistent with somebody that was trying to hide evidence of illegal fishing or the illegal possession of fish or shellfish.

Officer Farrington got off the fisheries vessel and immediately engaged Vaccher in a conversation in which she asked, "What was dumped overboard?" and Vaccher replied, “rockfish, fileted rockfish that I did not want any more.” [ 15 ] When one goes back and looks at the four factors that have to be considered in a voluntariness voir dire , there was absolutely no evidence of threats or promises, oppression, the lack of an operating mind, or any police trickery. [ 16 ] So, utilizing the common law voluntariness test, I have no doubt that the Crown has proven beyond a reasonable doubt that Vaccher’s statement, “rockfish, fileted rockfish that I did not want any more,” was a voluntary statement.

Whether or not it was a Charter violation is an entirely different issue. So, on the issue of voluntariness, I do find the statement voluntary and I take it the prosecution would like me to rule that it is admissible in the trial proper and all of the evidence that was heard on the voir dire is admissible in the trial proper?

That is my understanding of the agreement counsel told me they had before we entered into the voluntariness voir dire . [ 17 ] UNIDENTIFIED SPEAKER: [Indiscernible/overlapping speakers]. [ 18 ] THE COURT: All right, so I do rule that the statement, “rockfish, fileted rockfish that I did not want any more,” and all of the evidence heard during the course of the voir dire is admissible on the trial proper. (RULING CONCLUDED)