R. v. LeBel Date:, 2015 BCPC 163

Citation: R. v. LeBel Date: 20150113 2015 BCPC 0163 File No: 32541-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LUKE MICHAEL LEBEL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: E. Koresawa Counsel for the Defendant: A. Kaiser Place of Hearing: Williams Lake , B.C. Dates of Hearing: December 11 & 12, 2014 Date of Judgment: January 13, 2015

[ 1 ] This is my Ruling on the voluntariness of certain admissions made to an evaluating officer in the course of a drug impairment evaluation, conducted pursuant to s. 254(3.1) of the Criminal Code . [ 2 ] At step 10 of his evaluation Cst. Miciuk asked Mr. LeBel the following questions and received the following answers as noted on the Drug Influence Evaluation form marked Exhibit B on the Voir Dire: “Q: What medicine or drug have you been using? A: Cannabis. Q: How much? A: ½ bowl. Q: Time of use? A: 1 hour before being stopped. Q: Where were the drugs used?

A: In vehicle.” [ 3 ] I find that the Crown has proved beyond a reasonable doubt that these statements by Mr. LeBel were voluntary. However, as I think there may be an s. 7 Charter issue which could affect their admissibility, I am referring the matter back to counsel to decide whether it is appropriate to re-issue a Charter notice, call further evidence, or make further argument. [ 4 ] My concern about a potential Charter issue is prompted by a case that I became aware of after counsel concluded their arguments on December 12 th , 2014. The decision is R. v.

MacDonald, 2012 NSPC 26 , paras. 124 to 163 . [ 5 ] In that case the court found that the admissions made by the accused during the evaluation were voluntary in the classic sense (para. 124). However, the court went on to find that the statements were taken in violation of the accused’s s. 7 protected right to be free from self-incrimination because the questions were asked and answered as part of a statutorily compelled process, namely, the evaluation mandated by s. 254(3.1). See para. 151 to 156. The court engaged in an s. 24(2) Charter analysis and excluded the statements.

See paras. 157 to 163. [ 6 ] My reasons for concluding that the statements are voluntary are as follows. [ 7 ] Mr. LeBel was stopped in a roadblock at 1830 hrs on November 4 th , 2012. Observing a strong odour of burnt marijuana and physical symptoms, Cst. Blanche told Mr. LeBel that he was being detained for Possession of a Controlled Substance and advised him, from memory, of his right to counsel and right to silence. This was between 1830 hrs and 1840 hrs. [ 8 ] She then had a conversation with him.

The voluntariness and admissibility of the words spoken during that particular interchange are not in issue on this Voir Dire. Counsel agree the words were voluntary but only admissible on the issue of the adequacy of Cst. Blanche’s grounds for making a demand for an evaluation pursuant to s. 254(3.1) . [ 9 ] Cst. Blanche detained Mr. LeBel for drug impaired operation of a motor vehicle at 1840 hrs and made the demand for the evaluation at 1841 hrs. She then advised him for a second time of his right to counsel and right to silence. This time she read the information out to Mr. LeBel from her card.

He appeared to understand and declined to contact counsel. Cst. Blanche then drove him back to the detachment. [ 10 ] At the detachment she read “the supplementary warning” to Mr. LeBel. This was at 1927 hrs. On this occasion, he said that he would like to speak to his father and he was permitted to do so by telephone at 1930 hrs. Shortly afterwards Cst. Miciuk, the certified evaluating officer, began his evaluation. The conversation, the voluntariness of which is in issue on this Voir Dire, occurred towards the end of that evaluation, at about 2000 hrs.

[11] The evidence I have on this Voir Dire comes from Cst. Blanche and Cst. Miciuk, and it is to the effect that their interactionswith Mr. LeBel were calm, relaxed and cooperative throughout. There is no evidence of either threats or promises. I agree with theCrown’s submission that “none of the Oickle factors are present”. [12] Defence counsel argues this was not a voluntary statement because it took place during an evaluation process that Mr. LeBelwas statutorily compelled to participate in.

Since it is an offence under s. 254(5) to fail or refuse to comply with a peace officer’s demandto submit to a drug impairment evaluation pursuant to s. 254(3.1), the argument is that nothing that takes place in the course of suchevaluation can be regarded as truly “voluntary”. [13] Counsel acknowledges that step 10 of the evaluation, which is called “Interrogation, Statements and Other Observations”, is notactually a part of the evaluation required by the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196enacted pursuant to s. 254.1 (“the Regulations”).

It is a part of the protocol approved by the body that certifies evaluating officers, theInternational Association of Chiefs of Police. But, it is not one of the steps required by the Regulations. [14] However, counsel argues, the average citizen has no way of knowing this. He points out that nothing is done to demarcate ordelineate the “Interrogation” portion from the rest of the evaluation such that a detainee, like Mr.

LeBel, could possibly know that he isnot required by law to participate in this portion of the evaluation whereas he is required by law to participate in the other 11 steps of the12 step process. There is nothing done to explain to the detainee that while his right to be free from self-incrimination does not apply for most of the evaluation, it does apply, in the form of right to silence, in relation to the questions asked by the evaluating officer in the 10th step. [15] In

summary, the Defence submission is that Mr. LeBel’s statement cannot be found to be voluntary since it is the product ofstatutory compulsion, or at least the aura of statutory compulsion. [16] I have spent some time attempting to determine whether I can properly adjudicate the issue of statutory compulsion raised bythe defendant within the context of a voluntariness Voir Dire - as it has been presented to me in this case - or whether it is an issue thatcan only really be addressed in the context of a Charter application.

In the cases I have looked at dealing with statutory compulsion,which include the MacDonald decision earlier referred to, R. v. White and R. v. Powers, the issue is dealt with under the Charter and notby way of voluntariness analysis under the common law confessions rule. I have also reviewed R. v. Hebert, (SCC),[1990] S.C.J. 64, R. v. Oickle, 2000 SCC 38, and R. v. Singh, 2007 SCC 48 on the question of whether the issue of statutory compulsionis a “voluntariness” issue or a “Charter” issue, or whether it matters.

I note that at para. 39 of Singh, Justice Charron comments that thes. 7 protected rights to silence and to be free from self-incrimination are not completely subsumed in the common law voluntariness principle. She adopts with approval the following excerpt from Paciocco and Stuesser, The Law of Evidence, 4th edition: “…without question,

section 7 goes beyond the voluntariness rule in cases of "detained statements," excluding many that wouldotherwise meet the voluntariness rule.

Similarly, in cases of "statutory compulsion" statements made in compliance with statutoryobligations to speak may be excluded, even though they would have been admissible at common law.” [Emphasis added] [17] I conclude, reluctantly, since it will likely entail further delay in this matter, that the issue of statutory compulsion must beanalyzed in the context of a Charter Voir Dire with its different burdens and standards. [18] As indicated earlier in these reasons, this ruling is limited to voluntariness under the confessions rule and I find that theevidence proves beyond a reasonable doubt that Mr.

LeBel’s statements to the officer at step 10 of the drug impaired evaluation werevoluntary. No threats or promises were made. He was not deprived of food, water or sleep, or otherwise treated in an oppressivefashion. I find, in fact, that he was treated in a calm, non-threatening fashion and that he responded in kind. There is simply no evidenceto suggest that his statement was anything other than voluntary. [19] That said, in light of the decision in R. v. MacDonald, cited above, and R. v. White (SCC), [1999] 2 S.C.R. 417and R. v. Powers, 2006 BCCA 454, there may have been a breach of Mr.

LeBel’s s. 7 Charter rights. I will hear from counsel theirposition on whether it is appropriate for Defence counsel to refile his Charter notice in light of my ruling and, if so, whether eitherCrown or Defence wish to call further evidence on a Charter Voir Dire. I note that in the MacDonald case the evidence on thevoluntariness Voir Dire was admitted as evidence on the Charter Voir Dire.

_______________________________ Provincial Court Judge E. L. Bayliff