R. v. Segstro Date:, 2015 BCPC 141

Citation: R. v. Segstro Date: 20150529 2015 BCPC 0141 File No: 31760-1 Registry: Dawson Creek IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARIE SUSAN SEGSTRO RULING ON VOIR DIRES #2 AND 3 OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: T. Golinsky Counsel for the Defendant: G. Leven Place of Hearing: Dawson Creek , B.C. Date of Hearing: March 9 - 13, 2015 Date of Judgment: May 29, 2015 INTRODUCTION

[ 1 ] Marie Susan Segstro, the Accused, is charged on Information 31760 with offences alleged to have occurred between October 6, 2008 and April 30, 2010 in Dawson Creek, British Columbia, while she was the Royal Canadian Mounted Police (RCMP) Dawson Creek detachment Exhibit Custodian, and hence an official, namely:

a) Count 1 - breach of trust by stealing monies contrary to

Section 122 of the Criminal Code , and

b) Count 2 - theft of monies from the Dawson Creek RCMP detachment belonging to various persons contrary to

Section 334 (

a) of the Criminal Code . [ 2 ] During the course of the trial to date three Voir Dires have been heard. The first was concerning a statement made by the Accused on the porch outside her residence on July 23, 2012 to Staff Sgt. Darren Traichevich of the RCMP. [ 3 ] The evidence on that Voir Dire was heard on September 8 and 9, 2014 and was ruled to be voluntary and admissible. [ 4 ] At this point in the trial the Crown sought separate Voir Dires to establish beyond a reasonable doubt that the two statements made by the Accused described below were freely and voluntarily made:

a) Voir Dire #2: the out of custody statement made by the Accused at her residence on the afternoon of August 14, 2012 to Cpl. John Tent and Cpl. Brian Evans of the RCMP (the August 2012 Statement); and

b) Voir Dire #3: the in custody statement made by the Accused at the Dawson Creek RCMP detachment interview room on the evening of May 15, 2013 to Cst.

Rodney Smith (the May 2013 Statement). [ 5 ] Defence counsel maintains that the statements were not voluntarily made, and further, that the August 2012 Statement ``tainted`` the May 2013 Statement. [ 6 ] Counsel agreed that the only issue before the Court for determination at this time is voluntariness and that, depending on the Court`s ruling on that issue, Defence counsel reserved the right to call evidence and make submissions on whether the Accused`s rights under sections 7 , 9 , and 10 of the Canadian Charter of Rights and Freedoms (the Charter ) were breached and that her statements should be excluded under section 24(2) of the Charter . [ 7 ] The Crown alleges that during the time period in question the Accused, as the Exhibit Custodian at the RCMP detachment, stole various amounts of money that had been seized from various persons as part of a variety of criminal investigations and were logged into and stored in the exhibit locker at the detachment, or in one of several safety deposit boxes maintained by the detachment at a local bank. [ 8 ] The Crown`s theory is that the Accused stole the monies over the time period on the Information from 11 different files in order to maintain her lifestyle of overspending and gambling.

THE EVIDENCE [ 9 ] The Crown played for the Court the audio recording of the August 2012 Statement and the audio and video recording of the May 2013 Statement and provided proofread transcripts of those Statements. To supplement the playing of the Statements the Crown called three witnesses, Cpl. Tent, Cpl. Evans and Cst. Smith who answered questions about the Statements and the investigation in general. [ 10 ] Only Cpl. Tent and Cpl. Evans were cross-examined by Defence counsel. The Accused has not given evidence up to this point in the Voir Dires.

Early Investigations [ 11 ] Not long after the Accused went on an extended medical leave due to cancer in her foot, some irregularities were noted within the Dawson Creek detachment concerning money exhibits. Money exhibits on a number of files appeared to have gone missing, although at the time it was not known if that was as a result of poor exhibit document management, files being misplaced, some other explainable occurrence or malfeasance. [ 12 ] The detachment commander directed that an audit of the Temporary Exhibit Locker (TEL) and the Main Exhibit Locker (MEL) procedures and contents be conducted.

Once that process was concluded it appeared that there were 10 files (later expanded to 11) where there were exhibit problems; all were missing cash exhibits in various amounts for a grand total of approximately $17,000.00. [ 13 ] The results of the internal audit were relayed to the North District Headquarters of the RCMP. In light of the missing funds and the concern about the possible compromise of the integrity of other exhibits in the Dawson Creek detachment, including drugs, weapons and other property, it was decided that an outside investigation needed to occur. [ 14 ] Cpl. Evans, Cpl. Tent and Cst.

Smith were all members of the North District General Investigation Service (GIS) stationed in Williams Lake. They were assigned to the investigation and directed to examine four areas concerning the Dawson Creek detachment:

a) conduct reviews of the 11 files identified by the audit as being of concern and determine if criminal activity was involved;

b) review the exhibit handling procedures in the detachment and make recommendations for improvement;

c) determine if exhibit integrity had been compromised in either the TEL or the MEL; and

d) review the MEL key ledger and access procedures and account for who had access. [ 15 ] They arrived in Dawson Creek on July 30, 2012. After a short briefing by the Dawson Creek detachment commander and senior officials it was decided that the investigation should be conducted under the RCMP’s Major Case Management Rules. Cpl. Evans was assigned as Team Commander, Cpl. Tent was designated Primary Field Investigator and Cst.

Smith was designated as File Coordinator (the Team). [ 16 ] It was made very clear to the Team by the senior RCMP officials at North District that there was considerable urgency in ascertaining what had happened to the missing exhibit money because the integrity of all exhibit handling in the Dawson Creek detachment was of the utmost importance given the large number of investigations that could be compromised. [ 17 ] The Team divided the indicated files among them and started the review which lasted through July 30 and into July 31.

As part of the file review they identified persons that they wanted to interview concerning the four areas of inquiry and divided those tasks among them. They were also given a tour of the TEL and the MEL, although the security procedures for both had been changed from what they were prior to the internal audit. [ 18 ] On July 31 at the direction of the detachment officer manager (a civilian employee) a detachment clerk conducted a search of the Accused’s work area.

There was no evidence given as to why that search was being conducted then and not earlier as part of the detachment’s internal audit and investigation. That civilian employee found an envelope in the Accused’s work area which contained an opened and empty money exhibit envelope related to one of the files under review. [ 19 ] The Team immediately directed that no one else was to deal with the Accused’s work area until they had conducted their own search, which they did later that day.

To obtain access to the Accused’s locked desk the Team obtained from a detachment employee who worked nearby a key that opened both her desk and the Accused’s. [ 20 ] As part of the review of the Accused’s work area, additional documents of interest were located by the Team. In addition, a MEL key was found in the Accused’s desk and returned to the officer manager to put in the detachment safe. Cpl. Evans and Cpl. Tent acknowledged that they took very few steps, if any, to investigate who may have had access to the MEL key during the Accused’s medical absence. Cpl.

Evans also acknowledged that a number of people had access at various times to the detachment safe. [ 21 ] It was also noted by the Team that a number of present and former detachment members and employees had access to the exhibit lockers over the time period of concern. [ 22 ] After completing their initial investigation, the Team went back to Williams Lake returning to Dawson Creek in mid-August to take further steps in the investigation, including the taking of statements from various detachment personnel.

The August 14, 2012 Statement [ 23 ] Given the frequency of the Accused’s dealings with the suspect files in her capacity as the Exhibit Custodian, the documentation in the files and her work area regarding those files, it was determined by the Team that a statement should be obtained from her. Cpl. Evans and Cpl. Tent were assigned that task. [ 24 ] In the summer of 2012, the Accused had been off work in circumstances that raised concern in the detachment. Attempts to contact her by telephone were unsuccessful so on August 14 Cpl. Evans and Cpl.

Tent drove to her home in Bay Tree, Alberta, a short distance from Dawson Creek. Their first attempt failed but they located her that afternoon. [ 25 ] Prior to going to the Accused’s residence, Cpl. Evans and Cpl. Tent discussed the approach they would take in dealing with the Accused. They took with them a number of documents which had been found in the various files linking the Accused to the missing money. It was their intention to confront the Accused with those documents and demand an explanation from her about them. [ 26 ] In addition, Cpl. Evans and Cpl.

Tent decided to advise the Accused at the beginning of their interaction with her that they would not be detaining or arresting her that day regardless of how the statement went. In their evidence both Cpl. Evans and Cpl. Tent said that there was no need to detain or arrest the Accused for the following reasons:

a) they knew where the Accused resided and how to locate her;

b) the Accused had no criminal history and no history of not appearing in court;

c) there was no possibility of a continuation of the offences they were investigating;

d) the evidence from the investigation was protected and not subject to interference. [ 27 ] Based on their decision that they would not be detaining or arresting the Accused, Cpl. Evans and Cpl. Tent concluded that providing only a police warning and not the more formal

section 10(

a) and (

b) Charter warning would suffice. [ 28 ] Both Cpl. Evans and Cpl. Tent acknowledged that they were aware that the Accused had suffered from cancer in previous years but neither were able to provide a conclusive statement with regard to the Accused’s physical and mental well-being on August 14, 2012,

given that they were meeting her for the first time. [ 29 ] When Cpl. Evans and Cpl. Tent arrived at the Accused’s residence she met them on the porch, acknowledged who they were, stated that she knew that there was an audit and an investigation occurring concerning exhibit money from her discussions with other detachment employees and then invited them into her residence. [ 30 ] They sat around the Accused’s kitchen table and almost immediately she was advised that she was not obliged to say anything, she was not under arrest or detention but that anything she did tell them could be used in court.

The Accused acknowledged that warning and that if she wanted them to leave at any time all she had to do was ask. At no time during the statement was the Accused restrained from moving about her residence and, in fact, she did so on a couple of occasions. [ 31 ] What followed for a number of minutes was a general discussion surrounding the handling of money exhibits in the detachment and the Accused’s involvement in that process. She was then shown a number of documents that Cpl. Evans and Cpl. Tent had brought with them and was asked questions about them. Soon after that Cpl.

Evans told the Accused that she was a suspect with regard to the missing money and that he wanted some answers from her. [ 32 ] Almost immediately the Accused made her first of five requests to have the opportunity to either speak to a lawyer or have a lawyer present. On that occasion she was reminded that she was not under arrest and Cpl. Tent continued to lay out why she was a suspect. [ 33 ] At that point the Accused made a second request to speak to a lawyer to which Cpl.

Tent said they could wait outside while she called one and when the Accused said she would like a lawyer present while they were speaking, he told her that he never said she could have a lawyer present for that purpose even though she was not detained. He then went on to say that if he had nothing to hide he wouldn’t have need to talk to a lawyer or pay a lawyer money if he did nothing wrong and that he didn’t know a lawyer that gave free legal advice. [ 34 ] The Accused then made a further suggestion that she would like to talk to a lawyer before proceeding or to have her husband with her to which Cpl.

Evans replied that they were trying to get to the bottom of things. [ 35 ] Yet again the Accused asked to have a lawyer present to which Cpl. Tent replied that she would just be listening and not talking while they told her things. Cpl. Evans and Cpl. Tent continued to set out the information they had linking the Accused to the missing money exhibits. Then Cpl. Evans raised the issue of the Accused’s recent bout with cancer at which point the Accused became upset and began to cry; something which persisted throughout most of the remainder of the statement. [ 36 ] Cpl.

Tent said in his evidence that although the Accused was crying and upset there is nothing to indicate to him that her physical ability was pushed too far. He also stated that at one point he held her hand when she was emotional but that was the only physical contact between the Accused and either of the RCMP members. [ 37 ] Cpl.

Tent also stated that in his view the Accused had the ability to comprehend the circumstances of the statement given that her ex-spouse was a former RCMP member, she had worked at the detachment in various positions including transcribing statements and she had a good understanding of police procedure. [ 38 ] Eventually, the Accused asked what would happen to her to which Cpl. Tent replied that he was unable to say exactly what would happen but that he was 99.9% sure that she would not be going to jail.

Almost immediately after that, the Accused began to make a number of inculpatory statements about her involvement with the missing money exhibits including acknowledging some recollection of her actions but claiming she had no clear recollection of other transactions. [ 39 ] She also provided some explanation of her reasoning behind taking the money exhibits including living expenses and outstanding debts. [ 40 ] During that time in the statement she also disclosed that she had attempted suicide by taking pills and damaging her wrists on earlier occasions and she expressed extreme emotion surrounding her revelations.

She also disclosed that her illness was reoccurring and she was being treated again. Eventually, she requested that the statement stop and it was concluded. [ 41 ] However, by now the Accused was in such a fragile mental and emotional state in the view of Cpl. Evans and Cpl. Tent that they felt it unwise to leave her alone so they sought the assistance of a neighbour to stay with her until her husband returned home. [ 42 ] Under cross-examination Cpl.

Tent denied that he felt the Accused was their primary suspect or that there were reasonable and probable grounds to arrest her but acknowledged that she was a person of interest and a possible suspect. [ 43 ] He also denied Defence counsel’s suggestion that he tried to dissuade the Accused from calling a lawyer at any time in their dealings with her. He also stated that his reference that he was 99.9% sure that she would not go to jail was not made to cause the Accused to relax but rather it was based on his knowledge that she had no criminal record, her age and her past illness. [ 44 ] Cpl.

Tent also stated that there was no discussion between him and Cpl. Evans in advance of going to the Accused’s residence on the topic that not detaining her would be a good thing so that they would not have to give her the

section 10(

a) and (

b) Charter warning. That characterization was also adopted by Cpl. Evans. [ 45 ] Cpl. Evans stated that he confronted the Accused with his view that she was responsible for the missing money exhibits and that she almost immediately became emotional, crying and sobbing off and on throughout the rest of statement. [ 46 ] He also stated that once the Accused made the initial admission, he believed there were reasonable and probable grounds for arrest but he did not intend to do so and he did not believe he had the power to do so at that point and therefore no

section 10 (

a) and (

b) Charter warning was necessary.

Further Investigation [ 47 ] Following the August 2012 Statement, the Team undertook further investigations including interviewing other people who were, or had been, working at the Dawson Creek detachment and drafting applications for Production Orders for the Accused’s banking records. [ 48 ] By January 2013 a Report to Crown Counsel was prepared and delivered and after some further inquiries made at the direction of the Crown, the Crown decided that given that the Accused’s residence was outside of British Columbia an unendorsed arrest warrant would be required to secure her attendance before the Court.

The Arrest [ 49 ] The Team decided to arrest the Accused in the afternoon of May 15, 2013. Cpl. Evans and Cst. Smith went to the Accused’s residence. She was cordial when she first saw the RCMP members but became shocked and distressed upon being advised of their reason for attending at her residence. [ 50 ] The Accused was arrested, provided with the

section 10 (

a) and (

b) Charter warning and the police warning. She expressed her wish to consult counsel and after a brief discussion with Cpl.

Evans agreed that she would do so upon returning to the Dawson Creek detachment where she could have the privacy of the telephone room. [ 51 ] The Accused was advised that the timing of her arrest was done to provide some privacy to her while at the detachment because the support staff, her former colleagues, would have gone home by the time she arrived. [ 52 ] The Accused commented that she had been suicidal for quite a while but that she had been getting her life back in order. [ 53 ] The Accused was provided the opportunity to call her husband and advise him of her circumstances and was also permitted to gather her medication and identification before being escorted to the RCMP vehicle.

The drive from the Accused’s residence to the detachment was uneventful. [ 54 ] Upon arriving at the detachment the Accused was searched by a female RCMP member and then provided her opportunity to speak to counsel. That telephone call lasted several minutes and after it was completed the Accused was lodged in cells until her statement was taken later that evening. The May 15, 2013 Statement [ 55 ] It was decided between Cpl. Evans and Cst. Smith that Cst. Smith would conduct the post arrest interview and attempt to obtain a statement from the Accused for the following reasons:

a) he had been the one who reviewed, brought together and reconciled all of the financial information and he had prepared the chronology of when the Accused and others were working at or absent from the detachment over the time period at issue;

b) he had not planned or participated in the August 2012 Statement; and

c) he would decide on his own how to handle the issue of the August 2012 Statement if it arose. [ 56 ] Cst. Smith stated that he had a particular interest in preparing the financial documentation because he had received some accounting education and experience prior to joining the RCMP. [ 57 ] In preparation for the May 2013 Statement, Cst. Smith’s review of the Accused’s banking records indicated to him that she was in a serious deficit financing situation and had accumulated, in relatively short order, over $70,000.00 in consumer debt through various refinancing arrangements.

He also noted an unusual number of ATM cash withdrawals from the local casino during the same time period the exhibit money went missing. [ 58 ] Cst. Smith stated that there were some aspects of the August 2012 Statement that concerned him and the Regional Crown which he wanted to address including:

a) the remark made by Cpl. Tent about lawyers working for free and not knowing one;

b) the issue of the

section 10(

a) and (

b) warning upon the Accused making the first inculpatory remark and why she was not cautioned at that point;

c) he wanted to attempt to try and separate the two statements as much as possible, recognizing that he had full knowledge of the file and had read a transcript of the previous statement but that he wished to ensure with the Accused early on in the May 2013 Statement that it would be based on his knowledge of the file without making reference to any of the information she had given in the August 2012 Statement. [ 59 ] The May 2013 Statement was held in the Dawson Creek detachment interview room starting at 18:42 and ending at 22:07, lasting three hours and 25 minutes.

It was both video and audio recorded although some minor technical issues arose with the video but those issues did not impede the overall reliability of the recording. [ 60 ] At one point during the recording of the May 2013 Statement, Cst. Smith advised the Accused that the Team always travels

with its own recording equipment because the recording equipment in the various detachments is often different and they would prefer to work with equipment with which they were familiar. [ 61 ] At the very beginning of the May 2013 Statement Cst. Smith confirmed with the Accused that she had availed herself of access to counsel, that she had received all the necessary warnings at the time of her arrest, and that there were no threats or promises made to her by any RCMP member from the time of her arrest until the beginning of the statement. [ 62 ] Cst.

Smith then acknowledged the existence of the August 2012 Statement and advised the Accused that he would not be referring to it but rather would only be covering information based on the investigation as he knew it and the new information he had that was not available at the time of the earlier statement. [ 63 ] The Accused almost immediately asked for a cigarette break to which Cst.

Smith agreed to after covering off some preliminary items including that the Accused had no medication or medical requirements at the present time and that her health was a lot better than she had been a year ago and was free of cancer. Cst. Smith also confirmed with the Accused that when she had provided the August 2012 Statement she was not feeling well and was going through an emotional time. [ 64 ] After the cigarette break Cst.

Smith began to lead the Accused through his detailed review and analysis of the various files under investigation and the chronologies of the Accused’s and others work times at the detachment. After reviewing the first of the 11 files, Cst. Smith asked the Accused for her explanation to which she replied for the first of five times during the statement that she had been advised by the lawyer not to say anything. [ 65 ] Undeterred, Cst.

Smith continued his review of the files, pausing occasionally to question the Accused, to which she continued to reply that on the advice of the lawyer she did not want to say anything. [ 66 ] After a considerable time the Accused asked Cst. Smith if they could speak “off the record” which he declined and once again the Accused mentioned why a person would need a lawyer. Soon after that the Accused requested a cigarette break which was declined, for the moment, by Cst. Smith. [ 67 ] The Accused then asked Cst.

Smith what happened to the August 2012 Statement to which he replied that they had it but that at the time she was emotional and not well and that they wanted to talk to her one more time to show her that they understood. At that point the Accused asked again for a break saying that she would come back and talk. A second cigarette break was then provided. [ 68 ] After the break the Accused asked Cst.

Smith some additional questions about what might happen to her the following day in court to which he replied that he could never figure out what a Judge was going to say or what the lawyers were going to say and that as the police they simply gather information. Under further questioning by the Accused Cst. Smith advised that he would not be seeking to have her detained and that she would likely be granted bail on conditions. [ 69 ] The Accused then began to provide a series of inculpatory statements but maintained that she could not recall many of the incidents described by Cst. Smith.

At one point during that interaction the Accused commented that she would be in trouble with the lawyer tomorrow for having made the statements. [ 70 ] Near the end of the statement the Accused referred to Cpl. Tent, like Cst. Smith, getting through her logic and her mind to her core. THE LAW [ 71 ] The Crown provided the following cases in support of its position:

a) R. v. Moran 1987 Can LII 124 (ONCA)

b) R. v. Black 2006 BCSC 1435

c) R. v. Way 2011 NBCA 92

d) R. v. Holt 2012 BCSC 1121

e) R. v. Woods 2008 ONCA 713

f) R. v. Gurr 2007 BCSC 979 [ 72 ] The Defence provided the following cases in support of its position:

a) R. v. Oickle 2000 SCC 38

b) R. v. Singh 2007 SCC 48

c) R. v. Nakamura 2011 BCSC 1443

d) R. v. Lincoln 2009 BCSC 385

e) R. v. Wittwer 2008 SCC 33

f) R. v. Kipling 2010 BCSC 1298

[ 73 ] The Court advised counsel of two additional cases it had become aware of and would be considering:

a) R. v. Gilbertson 2012 BCSC 625

b) R. v. Leung 2013 BCSC 410 , 411 and 1229 [ 74 ] Both the Crown and Defence counsel referred the Court to certain specific passages from the cases to support their positions on the issues to be decided. Those passages are set out below. [ 75 ] In Moran , Martin J.A. set out the following non-exhaustive factors relevant to the issue of detention: 1.

The precise language used by the police officer requesting the person who subsequently became an accused to come to the police station and, whether the person was given a choice or expressed a preference that interview be conducted at the police station, rather than at his or her home. 2. Whether the person was escorted to the police station by a police officer or came himself or herself in response to a police request. 3. Whether the person left at the conclusion of the interview or whether he or she was arrested. 4.

The stage of the investigation, that is, whether the question was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and that the person was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the person. 5. Whether the police had reasonable and probable grounds at the time to believe the person who committed the crime being investigated. 6.

The nature of the questions; whether they were questions of a general nature designed to obtain information or whether the person was confronted with evidence pointing to his or her guilt. 7. The subjective belief by the person that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believes that he or she is detained.

Personal circumstances relating to the accused such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he or she had a subjective belief that he or she was detained. [ 76 ] In Way the Supreme Court of Canada addressed the issues surrounding whether or not a detention had occurred given a certain set of circumstances. The court referred to paragraph 44 of its decision in R. v.

Grant 2009 SCC 32 in discussing whether or not a psychological restraint and detention had occurred as follows: To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual; whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical statute; minority status; level of sophistication. [ 77 ] In Singh , Charron J., speaking for the majority addressed the issue of right to silence and police interrogations at paragraph 28 as follows: 28. What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted.

One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime he or she is likely the person who has the most information to offer about the incident.

Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime. [ 78 ] Later in Singh , in addressing the issue of the confessions rule and the obligation of the police in circumstances where a person is

or may be considered to be detained Charron J., says at paragraph 32: 32. ……. the importance of reaffirming the individual’s right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution. René Marin, and his text Admissibility of Statements (9 th ed. at pp 2 – 24.2 and 2 – 24.3) provides a useful yardstick for the police on when they should caution a suspect: The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence.

An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where communication or exchanges taking place. If the answer is arrest (or detain) the person then the warning should be given. 33. These words of advice are sound.

Even if the suspect has not formally been arrested and is not obviously under detention, police officers are well advised to give the police caution in circumstances described by Marin. [ 79 ] In summarizing the state of the law concerning the confessions rule as expressed in Oickle , Deschamps J., speaking for the majority in R. v. Spencer 2007 SCC 11 stated in paragraphs 11 through 15: 11. [Oickle] recast the law relating to the voluntariness of confessions… It rejected resort to fixed and narrow rules. (Cite omitted).

As Iacobucci J. explained in Oickle at paragraph 27 , the rule is “concerned with voluntariness, broadly understood”. He also emphasized that a contextual approach is required (paragraph 47): The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in the rule that would be both over and under inclusive. The trial Judge should therefore consider all the relevant factors when reviewing a confession. 12.

In Oickle , the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mine doctrine and police trickery. Threats or promises, oppression and the operating mine doctrine are to be considered together and “should not be understood as a discreet inquiry completely divorced from the rest of the confessions rules” (at paragraph 63”.

On the other hand the use of “police trickery” to obtain a confession” is a “distinct inquiry… [given that] it’s more specific objective is maintaining the integrity of the criminal justice system”(paragraph 65). 13. With respect to promises… The test laid down in Oickle is “sensitive to the particularities of the individual suspect” (paragraph 42), and its application “will by necessity be contextual” (paragraph 47). Furthermore, Oickle does not state that any quid pro quo held out by a person in authority, regardless of its significance, will necessarily render a statement by an accused involuntary.

For example, an offer of psychiatric or psychological assistance, although “clearly an inducement, … is not as strong as an offer of leniency and regard must be had to the entirety of the circumstances” (paragraph 50). Inducements “become improper only when… standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne” (paragraph 57). ……. 15.

Therefore, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement. [ 80 ] With regard to police trickery, Iacobucci J. noted in Oickle that unlike the headings of threats or promises, oppression, and operating mind which are considered together, this topic is a discreet inquiry. Relying on Lamer J. comments in Rothman he stated at paragraph 66: 66.

Lamer J. was also quick to point out that courts should be wary not to unduly limit police discretion (at p. 697): [T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensberry rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work.

What should be repressed vigorously is conduct on their part that shocks the community. [Emphasis added in original] [ 81 ] In summarizing the confessions rule, Iacobucci, J. stated the following at paragraph 68 of Oickle : 68. While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness.

Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial Judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

[82] On the subject of the practice of recording police interrogations, Iacobucci J. said the following at paragraph 46 of Oickle: 46. Before turning to how the confession rule responds to these dangers, I would like to comment briefly on the growing practice ofrecording police interrogations, preferably by videotape.… White, supra at pp. 153 – 54, similarly offers for reasons why videotaping isimportant: First, it provides a means by which courts can monitor interrogation practices and thereby enforce the other safeguards.

Second, it detersthe police from employing interrogation methods likely to lead to untrustworthy confessions. Third, it enables courts to make moreinformed judgments about whether interrogation practices were likely to lead to an untrustworthy confession.

Finally, mandating thesafeguard accords with sound public policy because the safeguard will have additional salutary effects besides reducing untrustworthyconfessions, including more net benefits for law enforcement. [83] In addressing the effect of a prior inadmissible statement on the subsequent statement, Barrow J. in Kipling said the following inparagraphs 24 through 27: [24] ….. The law relating to the effect of a prior inadmissible statement on a subsequent statement, commonly referred to as“tainting,” was set out in a comprehensive way by Sopinka J. In R. v. I.(L.R.), (SCC), [1993] 4 S.C.R.504.

What wassaid in that case was adopted by Fish J. on behalf of the unanimous court in R. v. Wittwer 2008 SCC 33. In I.(L.R.) at page 526 SopinkaJ. wrote: Under the rules relating to confessions at common law, the admissibility of a confession which has been preceded by an involuntaryconfession involves a factual determination based on factors designed to ascertain the degree of connection between the two statements.

These include the time span between the statements, advertence to the previous statement during questioning, the discovery of additionalincriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and othersimilarities between the two circumstances.

He continued: In applying these factors, a subsequent confession would be involuntary if either the tainting features which disqualified the firstconfession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making ofthe second statement. [25] Thus, there are two issues.

The first is whether there is a continuation of the disqualifying features relating to the first statementat the time the second statement is given and, even if there is not, the second issue is whether the fact that the first statement was givenwas a substantial contributing factor to the making of the second statement. The latter issue arises usually, but not exclusively, when thefirst statement is inculpatory. An example of that is R. v. Kiloh 2003 BCSC 209. There, the accused gave several statements. The firststatement was inculpatory.

At paragraph 138 McKenzie J. (As she was then) addressed tainting and, in particular, the role of the firststatement in relation to the second. There, the accused had argued that he had “already spilled the beans” and that played a role in hisdecision to speak when interviewed subsequently by the police. That is commonly the situation when dealing with the role of the firststatement in the decision to make a second. It is not always the case and it is not the case in the circumstances at hand. [26] The features to be looked at in resolving issues raised by the notion of tainting include: 1.

The passage of time between the two statements; the longer the gap between the two statements, generally, the less likely there willbe a strong connection; 2. The external circumstances, the place and the personnel involved in the giving of the second statement; the greater thecorrespondence between the two, the greater is the possibility of a continuing influence of the disqualifying features; 3. The intervening events that may mitigate or eliminate the disqualifying features; generally those involve things like the giving of thepolice caution, the providing of a secondary warning, and access to counsel. 4.

Whether during the second statement the police averted to the fact of the first statement. Again, as noted, this is a greater concernwhen the first statement is inculpatory. Wittwer is another example of that phenomenon. [27] Viewed from a different perspective, Fish, J. in Wittwer identified three aspects to the analysis: temporal, causal, and contextual. Again, it is not a matter of addressing each of these aspects in isolation, but rather whether all give rise to a concern either on the first orsecond aspect of the tainting analysis.

In many cases, one aspect will affect or influence the degree of importance of the other aspects. SUBMISSIONS Crown [84] The Crown acknowledged that it bore the onus to prove beyond a reasonable doubt both that the August 2012 and May 2013Statements made by the Accused were voluntary and that if the August 2012 Statement was determined not to be voluntary that it did not“taint” the admissibility of the May 2013 Statement. [85] The Crown’s submissions with regard to the August 2012 Statement can be summarized as follows:

a) it was held at the kitchen in the Accused’s home after she invited Cpls. Tent and Evans in. Everyone was cordial and theAccused was sober and lucid;

b) the Accused was immediately advised of and acknowledged her understanding that regardless of what happened that day she was

not and would not be detained or arrested and she could call an end to the statement at any time;

c) the Accused was not a vulnerable person. She was a sophisticated, mature, successful woman who held responsible employment positions. She was well informed about RCMP procedures from her years of being the spouse of an RCMP member and her work at the Dawson Creek detachment as both a statement transcriber and Exhibit Custodian;

d) Cpls. Tent and Evans tried to put the Accused at ease in the initial portion of the statement. As the statement progressed they became more pressing and demanding but their actions were never oppressive;

e) when the Accused was pressed to divulge information about the exhibit thefts she became emotional, cried and expressed fear, not of the RCMP, but of the consequences of her actions but she maintained an operating mind throughout;

f) the admissions made by the Accused were as a result of her feelings of guilt and remorse and not as a result of any impermissible actions or statements by the RCMP members. Those feelings had been eating her up to the point that she had made earlier attempts on her life;

g) the Accused was given the standard police warning at the beginning of the meeting and although it may have been good practice to give her another secondary warning and a right to counsel warning when she started making admissions, the failure to do so was only poor practice and not fatal to the voluntariness of the statement;

h) there never was a detention of the Accused on that day and although Singh makes it clear the confessions rule applies regardless of whether or not there is a detention it becomes a different and more serious circumstance after detention;

i) Cpl.

Tent’s comments to the Accused about lawyers costing money, that she could not have a lawyer present during the statement, even though she was not detained, and that he was 99.9% sure she would not be going to jail were neither promises or inducements but were close to the danger zone. [ 86 ] The Crown further submitted that the Court’s analysis of Moran factors should result in the following findings: 1), 2) and 3) do not apply because the interview was held in the Accused’s home and the Accused was not detained or arrested; 4) and 5) apply because the RCMP had already concluded a crime had probably been committed but they did not know the extent of the malfeasance.

They considered the Accused a “person of interest” before they arrived at her residence and that increased to the point that she was a strong suspect and in the view of Cpl. Evans there were reasonable and probable grounds to arrest the Accused.

There was an attempt to obtain incriminating evidence from the Accused and she gave careful consideration to her options before making any inculpatory statements; 6) Although the questions at first were of a general nature, the RCMP brought with them documents to confront the Accused with indicating her involvement in the thefts and her guilt; 7) There is no evidence of the Accused’s subjective beliefs because she did not testify, and her personal circumstances did not include any of the examples given in Moran , in fact just the opposite. [ 87 ] For all the reasons set out above the Crown submitted that it has proven that the August 2012 Statement was made voluntarily.

If the Court agreed then the issue of “tainting” did not apply to the May 2013 Statement from the perspective of voluntariness. [ 88 ] The Crown further submitted that in the event the Court concluded the August 2012 Statement was not voluntary, the Wittwer analysis must be undertaken if the Court decides that the May 2013 Statement is otherwise admissible as voluntary. [ 89 ] The Crown’s submissions with regard to the May 2013 statement can be summarized as follows:

a) prior to providing the statement the Accused was arrested at her residence and transported to the Dawson Creek RCMP detachment without incident or any substantive communication between her, Cst. Smith and Cpl. Evans;

b) the Accused was the same sophisticated, mature and knowledgeable person she had been during her statement to Cpls. Tent and Evans;

c) prior to speaking to Cst. Smith the Accused consulted privately with counsel by telephone and confirmed to Cst. Smith that she was aware of her right to silence on several occasions during the course of the statement,

d) at the beginning of the statement Cst. Smith confirmed with the Accused that she was in good health and not in need of any medication at that time;

e) throughout their interaction Cst. Smith was soft-spoken and cordial with the Accused. He ensured that she was comfortable and facilitated cigarette breaks during the course of their interaction;

f) prior to seeking any explanations from the Accused, Cst. Smith spent considerable time showing her the volumes of investigatory information he had gathered about her personal finances, the chronology of the times she was at work and off on medical leave and the chronology of when exhibit money went missing from files;

g) when asked by the Accused about the potential outcome of her court appearance the following day Cst. Smith correctly deflected the inquiries by stating it is up to the lawyers and the Judge and that his task as an RCMP member is to gather information;

h) Cst. Smith was aware of the existence of the August 2012 Statement having read a transcript and he acknowledged that to the Accused but stressed that he was not going to be relying on that statement during the course of his dealings with the Accused;

i) although the Accused mentioned the August 2012 Statement on a few occasions there was nothing to indicate that she, in anyway, felt influenced to speak to Cst. Smith as a result of that statement. The August 2012 Statement was given nine months before the May 2013 Statement and the Accused had plenty of time to gather information and obtain advice concerning her intention to participate in any statement with Cst. Smith;

j) in the event the August 2012 Statement is found to be involuntary, its influence was minimal over the way the May 2013 Statement was conducted by Cst. Smith and any decisions made by the Accused to provide inculpatory information. [ 90 ] On the issue of “tainting” the Crown relied on paragraph 21 of Wittwer and submitted that although the Court must adopt a purposive and generous approach to the analysis, it should conclude in this case, that the May 2013 Statement was not part of the same transaction as the August 2012 Statement.

While acknowledging that relationship between an impugned statement and a subsequent statement may be temporal, contextual, causal or combination of the three, the Court should determine, in this case, that the connection between two statements was either merely remote or tenuous and as such the voluntariness of the May 2013 Statement was not “tainted”. Defence [ 91 ] Defence counsel’s submissions with regard to the August 2012 Statement can be summarized as follows:

a) the Court must engage not only in a broad analysis of the environment and the context of the Accused’s utterances as opposed to only examining particular statements in isolation while at the same time examining the combination of permissible and impermissible comments made by the RCMP members in an attempt to elicit inculpatory admissions from the Accused;

b) when examined in their totality, the actions and statements of Cpls. Tent and Evans amounted to a combination of inducements and oppression. Some examples of that include comments that if a person comes “clean” they can be forgiven and that Cpl. Tent was 99.9% sure she would not go to jail for her crimes;

c) by having a plan, in advance of speaking to the Accused, that they would tell her she would not be detained or arrested that day no matter what she said the RCMP members either intentionally or erroneously concluded that despite any of their actions or any utterances made by the Accused that may have amounted to providing reasonable and probable grounds for arrest there would be no need to give her the

Section 10(

a) and (

b) Charter warning of her right to counsel;

d) the RCMP members went even further by actively deflecting the Accused’s several requests for an opportunity to meaningfully consult counsel by reiterating that she was not detained, that she could not have counsel or family present during the interview (even though she could because she was not detained) and that lawyers didn’t work for free;

e) the decision by the RCMP members not to video the August 2012 Statement is of concern because they travelled with their own video equipment and the lack of a video could have led the Accused to consider the circumstances of the statement to be less formal or serious than the RCMP intended and it makes it impossible for the Court to determine the Accused’s health and emotional state. [ 92 ] Defence counsel did not take great issue with the circumstances surrounding the May 2013 Statement except to contend that Cst.

Smith’s delay in giving the Accused a cigarette break on the second occasion she asked for it led her to promise to divulge inculpatory information in order to obtain relief for her nicotine addiction. [ 93 ] Defence counsel’s submissions on how the May 2013 Statement was “tainted” by the alleged involuntary and hence inadmissible August 2012 Statement can be summarized as follows:

a) the Court in applying the purposive and generous approach to the two statements should conclude that all, or at least some, of the temporal, contextual or causal connections exist such that the impugned August 2012 Statement must cause the May 2013 Statement to be excluded from evidence on the basis that it too is involuntary;

b) Cst. Smith was well aware of the contents of the August 2012 Statement and some of the frailties of it (the Accused wasn’t well, she was emotional) and uses that as a reason to want to talk to her again;

c) Cst. Smith failed in his duty to advise the Accused that the August 2012 Statement may well be inadmissible before attempting to get her to make a further inculpatory statement or in deflecting her inquires about the August 2012 Statement long before she makes any sort of admissions;

d) in considering the temporal aspect the Court should pay less attention to the nine months from the August 2012 Statement and the May 2013 Statement and more attention to the brief period from where the Accused asked Cst. Smith about the August 2012 Statement and the short time later when she makes some inculpatory admissions;

e) the same situation applies to the causal link between the Accused’s reference to the content of the August 2012 Statement when talking to Cst. Smith and her similar admissions shortly after. DISCUSSION AND DECISIONS

The August 2012 Statement [ 94 ] Determining voluntariness is contextual and not a mechanical analysis looking for certain words or phrases. However, some words or phrases if uttered by the authorities are “… dangerous or unfortunate or risky…” ( Kipling ). [ 95 ] The issue of detention, whether it is physical or psychological, is an important factor to consider in assessing voluntariness ( Singh ). [ 96 ] The Accused is a mature woman who has held responsible employment positions.

She had life and employment experiences that exposed her to RCMP interview techniques and procedures. [ 97 ] On August 14, 2012 she was at home in the afternoon when Cpl. Evans and Cpl. Tent arrived and commented to them that she had been anticipating a meeting with them.

From the observations of the RCMP members she was sober and welcoming and invited them into her residence. [ 98 ] However, it is also clear from listening to the audio recording that the Accused was experiencing some medical and/or emotional stress related to her recent cancer illness which had resulted in her long absence from work sometime previously and may have contributed to her most recent absence from work. [ 99 ] The extent of the interaction between her medical and mental health and her work absence at the time was not explored by Cpl. Evans and Cpl.

Tent but when the Accused’s cancer illness was raised during the course of the statement she immediately became emotionally upset and distraught and remained that way through most of the rest of the statement. [ 100 ] The issue of detention, which is somewhat independent of the statement’s actual content, also must be considered in relation to voluntariness. Applying the seven factors from Moran to this case provides the following conclusions; 1. The Accused was not asked to come to the detachment. Cpl. Evans and Cpl. Tent came to her residence.

She was not given the chance to indicate whether she would have preferred to come to the detachment but she did allow the RCMP members to come into her residence without complaint; 2. This factor does not apply in this case; 3. The Accused was not arrested after the statement but that outcome had already been predetermined by Cpl. Evans and Cpl. Tent as part of their strategy and was utilized as a tactic to obtain the statement; 4. Cpl. Evans and Cpl. Tent were satisfied that a crime involving the theft of exhibit money had been committed and that the Accused was a strong suspect.

Their questions during the statement eventually focused on confronting the Accused to see if she would respond with some inculpatory admissions; 5. By the time the statement had concluded, at least Cpl. Evans believed there were reasonable and probable grounds to believe that the Accused had committed the offences they were investigating; 6. The Accused was clearly confronted with evidence of her guilt and was exhorted in a variety of ways to come clean, own up to her actions and to not hide behind lies; 7.

The Accused did not testify during the Voir Dire to this point so her subjective belief is not part of the record. However, it is clear that she saw the need for advice from, and the presence of, either counsel or her spouse based on her numerous requests for same. Several of the statements made by Cpl. Evans and Cpl. Tent about the necessity and nature of legal advice and the likely outcome of the case if the Accused confessed are clearly dangerous, unfortunate or risky comments. The nature of those concerns was also noted by Cst.

Smith and the Regional Crown prior to the May 2013 Statement. [ 101 ] At the time of the August 2012 Statement the Accused was clearly suffering from an emotional disturbance which started with her crying at the mention of her cancer illness, increased when she discussed her past attempts at self harm and culminated by the end of the statement with Cpl. Evans and Cpl.

Tent being so concerned about her mental health that they felt compelled to ensure that she was not left alone when they departed. [ 102 ] Determining whether or not such circumstances amounted to oppression to the point of overcoming the Accused’s operating mind is highly fact - sensitive ( Holt ) and a matter of degree ( Singh ). [ 103 ] When the Moran factors are combined with the predetermination by Cpl. Evans and Cpl.

Tent not only to not detain or arrest the Accused but to go so far as to tell her of that plan in advance of confronting her with evidence of her guilt, it leads to a reasonable conclusion that she was in fact psychologically detained. What is clear is that the Accused was never given a further warning before making her first inculpatory statement even though Cpl. Evans believed that he had reasonable and probable grounds to believe she had committed the offences. This lack of an additional warning concerned not only the Court but also to Cst.

Smith when he was planning for the May 2013 Statement. [ 104 ] In the final analysis I conclude that the Accused was detained at a point at least part way through the August 2012 Statement. [ 105 ] The August 2012 Statement was audio recorded only. The reason for that was unexplained by Cpl. Evans, Cpl. Tent or the Crown, in the face of the case law strongly suggesting that statements be video recorded and the specific information given to the Accused by Cst.

Smith during the May 2013 Statement that the Team always travelled with their own video equipment. [ 106 ] It is necessary to consider if the lack of a video recording, the misinformation given to the Accused about lawyers and her legal

jeopardy and the predetermination by the RCMP to advise the Accused that she would not be arrested or detained regardless of the outcome of the August 2012 Statement amounts to trickery and whether that trickery would shock the community. [ 107 ] I conclude that the three examples set out above are forms of trickery or deceit which when combined together in the circumstances where there was a psychological detention exceed what could be considered tolerable RCMP tactics and would shock the community. [ 108 ] On that basis the Crown has not satisfied me beyond a reasonable doubt that the August 2012 Statement was made voluntarily by the Accused.

The Arrest [ 109 ] The circumstances surrounding the Accused’s arrest were not addressed by counsel. However, given that it immediately predates the May 2013 Statement it must be considered. [ 110 ] The Accused was arrested in the mid-afternoon at her residence by Cpl. Evans and Cst. Smith. That interaction and the entirety of their dealings with her prior to arriving at the Dawson Creek RCMP detachment were recorded on audio. [ 111 ] Upon her arrest the Accused was immediately provided with the necessary Charter and police warnings and indicated that she understood them.

She expressed a wish to speak to a lawyer but agreed to wait until they had returned to the detachment so she could speak to one in private. She was then given an opportunity to gather her identification and medicines and to advise her spouse of her situation. [ 112 ] There was no inappropriate physical contact between the Accused and the RCMP members. There is no indication that either Cpl. Evans or Cst.

Smith made any promises, inducements or threats to the Accused. [ 113 ] There was a very short drive from the Accused’s residence to the detachment and there were no conversations, utterances or statements made by the Accused during the trip that bear on this case. Upon arrival the Accused was put in touch with counsel by telephone almost immediately after the booking in process had concluded. [ 114 ] On the basis of that evidence I conclude there were no circumstances to suggest that any utterances by the Accused were not voluntary or that there were any improper actions by the RCMP.

The May 2013 Statement [ 115 ] Before the May 2013 Statement commenced the Accused had been arrested, provided with her Charter and police warnings and had an opportunity to obtain telephone legal advice. [ 116 ] The entire statement was video and audio recorded and the Court was able to clearly see the interactions between the Accused and Cst. Smith throughout except for the two brief absences when they went to the sally port of the detachment to allow the Accused to have a cigarette. In those situations the recording was audio only. [ 117 ] The Accused confirmed to Cst.

Smith at the beginning of statement that there had been no promises, inducements or threat made to her by any RCMP member and she was satisfied with the legal advice she obtained, that she was in generally good health and was not in need of any medications. [ 118 ] During the course of the statement the Accused requested two cigarette breaks. Each request was slightly delayed by Cst. Smith and accommodated within minutes of being requested. [ 119 ] Throughout the statement Cst. Smith was soft-spoken and fair but firm in his interactions with the Accused.

He did not make any negative comments about the legal advice she had received but reminded her that it was her choice as to whether or not she wished to follow that advice by remaining silent or if she wished to speak to him. [ 120 ] Most of the statement consisted of Cst. Smith laying out, in excruciating detail, all of the evidence he had gathered about the Accused’s personal financial history including her gambling and debt refinancing.

He also displayed for the Accused on his computer graphics setting out the periods of time she was at work or absent due to illness and correlating those events to the files where money exhibits were missing. [ 121 ] From time to time he politely but bluntly asked her if she knew about the missing money or wanted to provide any information or explanation as to how it could have gone missing. He did not raise his voice or in any other way attempt to intimidate the Accused. [ 122 ] Throughout most of those interactions the Accused reiterated that she had been told by the lawyer not to speak to Cst. Smith.

Eventually however, after several such interactions the Accused asked for another cigarette break. At first Cst. Smith delayed advising the Accused that they were almost finished. The Accused then asked again advising Smith that after they took a cigarette break she would speak to him; something she did and in doing so made many inculpatory statements. [ 123 ] I reject Defence counsel’s submission that the slight delay in the second cigarette break amounted to either inducement to get the Accused to talk or oppression that forced her to talk if she got the break.

The Accused knew of her right to silence and referenced it several times earlier in the statement. She was not as physically or emotionally fragile as she had been during the August 2012 Statement. At times she was emotional but the video does not provide any indication she was overwhelmed in any way. [ 124 ] There were no inducements, promises, threats or oppression used by Cst. Smith. There was no trickery employed by him, let alone to the level that would in any way shock the community. But for the “tainting” issue, the May 2013 Statement made by the Accused was voluntary.

Tainting [ 125 ] Utilizing the directions set out in the case law, and in particular Wittwer and Kipling, the Court must address whether the August 2012 Statement and the May 2013 Statement are linked in any of a temporal, causal or contextual sense so as to taint the May 2013 Statement. [ 126 ] After examining the four features described in Kipling the following applies in this case: 1. There was a nine-month gap between the two statements. I reject Defence counsel’s submission that the temporal component should be reduced to the time between when the August 2012 Statement was mentioned by Cst.

Smith in the May 2013 Statement and when the Accused made her first inculpatory admission; 2. The circumstances and personnel in each of the statements were much different. The August 2012 Statement occurred among Cpl. Evans, Cpl. Tent and the Accused in her residence. The May 2013 Statement occurred between Cst. Smith and the Accused at the RCMP detachment. Although Cpl. Evans was present in another room he did not participate in the May 2013 Statement. In the August 2012 Statement the Accused was emotionally upset and not healthy either physically or mentally.

In the May 2013 Statement the Accused acknowledged that she was healthy and although she did get upset from time to time she did not become emotionally overwhelmed. The August 2012 Statement is not videotaped but the May 2013 Statement was; 3. Intervening events included that the Accused was given all the necessary warnings at the time of her arrest and had availed herself of legal advice immediately before the commencement of the May 2013 Statement. In addition, Cst. Smith had gathered an enormous amount of new evidence in the nine months since the August 2012 Statement; 4. Cst.

Smith did refer to the August 2012 Statement immediately and advise the Accused that he would not be relying on it as part of his meeting with her. When the Accused raised the issue of the August 2012 Statement later he again acknowledged its existence but reiterated that he was relying on his own investigations and results in dealing with the May 2013 Statement. [ 127 ] As Defence counsel pointed out, it would’ve been much better if Cst.

Smith had clearly advised the Accused that she should not be influenced by what she may have said in the August 2012 Statement and perhaps to even have gone further to advise her that its admissibility was not yet certain. [ 128 ] However, like the court in Woods I conclude that such a caution was not necessary given that the combination of the Kipling factors and the Wittwer factors make the connection between the August 2012 Statement and in the May 2013 Statement both tenuous and vague and, as such, the Crown has satisfied me beyond a reasonable doubt that the May 2013 Statement was not “tainted” by the August 2012 statement.

ORDERS [ 129 ] The August 2012 Statement was not made voluntarily and as such is inadmissible as evidence in the trial. [ 130 ] The arrest of the Accused on May 15, 2013 was carried out properly and any spontaneous utterances made by the Accused from the time of her arrest until she was lodged in cells are voluntary and admissible. [ 131 ] The May 2013 Statement, standing on its own, was made voluntarily by the Accused and is prima facie admissible in the trial. [ 132 ] As it applies to the issue of voluntariness there is no “tainting” of the May 2013 Statement arising from the inadmissibility of the August 2012 Statement.

As requested by Defence counsel I will leave the issue as to whether or not “tainting” of the May 2013 Statement arises from any Charter breach to be further addressed by counsel. [ 133 ] I will hear submissions from counsel on which parts, if any, of the evidence surrounding the circumstances of the August 2012 Statement may be admissible in the trial. __________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC