Her Majesty the Queen - v. -, 2013 SKPC 74

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 074 Date: April 30, 2013 Information: 37241009 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeffrey Schneider Appearing: Mr. C. Weibe For the Crown Mr. B. Nychuk For the Accused DECISION ON VOIR DIRE M. HINDS , J INTRODUCTION [ 1 ] Jeffrey Schneider is charged that on or about the 31 st day of January A.D. 2012 at or near Regina, Saskatchewan, he operated a motor vehicle while impaired by alcohol, contrary to section 253(1)(a), and he operated a motor vehicle while over .08, contrary to section 253(1) (

b) of the Criminal Code .

[ 2 ] A voir dire was conducted during the testimony of Constable Karlene Phillips who was dispatched to the intersection of 7 th Avenue and Lorne Street in Regina to investigate a vehicle which was hung up in a snowbank. [ 3 ] Prior to embarking on the voir dire, Constable Phillips testified that she and her partner Constable Temple were in a marked police vehicle and attended upon the intersection of 7 th Avenue and Lorne Street shortly after 2:30 a.m. on January 31, 2012.

She observed a truck stuck in a snowbank and a male who subsequently identified himself as Jeffrey Schneider, to be walking away from the truck. Mr. Schneider appeared to be staggering and intoxicated. Constable Phillips arrested Mr. Schneider for impaired driving and placed him in the back of the police vehicle. Constable Phillips sat in the front driver’s seat. She read Mr. Schneider his Charter rights, and he indicated that he wished to call a lawyer. She then read him a police warning, which he indicated that he understood. Constable Phillips also made a breath demand upon Mr.

Schneider who responded by saying he would not provide samples of his breath because he was not driving. [ 4 ] During the voir dire Constable Phillips testified that after she read Mr. Schneider his Charter rights, police warning and made the breath demand of him she engaged in a conversation with Mr. Schneider. Constable Phillips testified that at no time did she or Constable Temple offer Mr. Schneider any advantage or benefit. She testified that Mr. Schneider told her that he was with another girl that was driving.

He also told Constable Phillips that he had been charged with impaired before, and he was smarter than that, and wouldn’t drink and drive. [ 5 ] Constable Phillips further testified that while she was with the accused in the police vehicle her partner, Constable Temple, went to the truck and returned to the police car. Constable Temple opened the passenger door of the police vehicle, leaned in and told her there was only one set of footprints leaving the driver’s side of the truck. Constable Phillips testified that Mr. Schneider then responded and explained to her that he “stepped into her footprints”.

She conceded that she did not record the exact words spoken by Mr. Schneider. [ 6 ] On cross-examination Constable Phillips conceded that she did not explain the right against self-incrimination under

section 13 of the Charter or the right to remain silent under

section 7 of the Charter to Mr. Schneider. Constable Phillips also conceded that she did not tell Mr. Schneider that he had a right not to say anything until such time as he had a reasonable opportunity to speak to a lawyer. [ 7 ] Constable Phillips testified that she made notes of this incident. She used quotation marks when recording the exact words spoken by Mr. Schneider. She testified she made note of the exact words spoken by Mr. Schneider in response to his Charter rights and police warning. Constable Phillips also noted that Mr.

Schneider asked her “Don’t you have bigger fish to fry?” Otherwise she paraphrased what she thought Mr. Schneider said. On cross-examination Constable Phillips testified that she also understood Mr. Schneider to say words to the effect that he shouldn’t have asked the drunk girl to drive him home, but he wanted to get his truck home. In addition Mr. Schneider said words to the effect that he wasn’t planning on driving, he was only going to have a few and he didn’t want to get this loaded.

He also said he hooked up with a girl and that she was driving, and he wasn’t. [ 8 ] In this case the Crown is seeking to have the statement that Mr. Schneider made in response to Constable Temple’s words admitted into evidence on the voir dire . That statement contains words to the effect of “I stepped into her footprints”. [ 9 ] The Defence takes the position that all the statements made to the police officers by Mr. Schneider were not voluntary and are therefore inadmissible. In the alternative, should this Court find Mr. Schneider’s statements were voluntary, then all of Mr.

Schneider’s statements should be admitted into evidence. ISSUES [ 10 ] The circumstances in this voir dire give rise to the following issues: 1. Were the verbal statements made by the accused to the police in the police vehicle voluntary?

2. If the verbal statements made by the accused to the police were voluntary, should some or all of the statements be admitted intoevidence? ANALYSIS 1. Were the verbal statements made by the accused to the police in the police vehicle voluntary? [11] The basic premise underlying the requirement of inquiry into statements made by an accused to a person in authority wasadopted by the Supreme Court of Canada in Erven v. The Queen, (SCC), [1979] 1 SCR 926, from Ibrahim v.

The King,[1914] A.C. 599 (P.C.), which stated at p. 930 as follows: It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence againsthim unless it is shewn [sic] by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from himeither by fear of prejudice or hope of advantage exercised or held out by a person in authority.

The principle is as old as Lord Hale. [12] In Erven, supra, Justice Dickson concluded at p. 931: I think it can now be taken to be clearly established in Canada that no statement made out of court by an accused to a person in authoritycan be admitted into evidence against him unless the prosecution shows, to the satisfaction of the trial judge, that the statement wasmade freely and voluntarily. [13] More recently, the Supreme Court of Canada, in R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 held that whenconsidering voluntariness, the Court must consider four factors as follows: 1. Threats or Promises; 2.

Oppression; 3. Operating Mind; and 4. Trickery. Threats or Promises [14] In this case there is no evidence that Mr. Schneider was threatened or promised anything by the police, who clearly werepersons in authority over him. Oppression [15] The concept of oppression in the context of voluntariness is described in Oickle, supra, in paragraph 58 as follows: If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession toescape those conditions.

Alternately, oppressive circumstances could overbear the suspect's will to the point that he or she comes todoubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession.

[16] The Defence contends that an oppressive condition existed by virtue of Mr. Schneider being arrested, placed in the back seatof the police vehicle and not afforded an opportunity to speak to a lawyer. [17] On the evidence before me I am unable to conclude the police created conditions distasteful enough that Mr. Schneider madea stress-compliant confession to escape those conditions. The evidence indicates that Constable Phillips and Mr. Schneider had a briefconversation while he was in the back of the police vehicle.

The full details of the conversation including what, if any, questions wereasked by Constable Phillips, the manner or tone of the conversation and its length were not canvassed. Moreover, the evidence indicatesthat Constable Temple had little to do with Mr. Schneider and that when he went to the police vehicle he spoke to Constable Phillips, notMr. Schneider. [18] I also find there is no evidence that the circumstances came to overbear Mr. Schneider’s will or that he “lost any meaningfulindependent ability to choose to remain silent”. Nor had he become “a mere tool in the hands of the police”.

Operating Mind [19] In this case there is no evidence that while Mr. Schneider was in the back of the police vehicle he was deprived of anoperating mind and that his statements were therefore involuntary. He had been provided a police warning and indicated that heunderstood the warning. Trickery [20] There is also no evidence that trickery or deceit were used by the police while Mr. Schneider was in the back of thepolice vehicle. Conclusion on Voluntariness [21] I am of the view that the Crown has proved beyond a reasonable doubt that Mr. Schneider’s statements to police were voluntary.

I will leave the issue of whether Mr. Schneider’s

section 10(

b) Charter rights were breached toanother day. 2. If the verbal statements made by the accused to the police were voluntary, should some or all of the statements be admittedinto evidence? [22] I am of the view that the “entire statement” principle applies in the present case. In R. v. Mallory, 2007 ONCA 46, theOntario Court of Appeal stated as follows: 204 The principle and its purpose were reviewed by the Appellate Division of the Supreme Court of Alberta in R. v. Girvin (1916), (AB CA), 27 C.C.C. 265 at 271-72 (Alta.

S.C.): When the Crown, or a party wishes to use as evidence a confession or admission, the Crown or the party must ordinarily prove theconfession or admission in its entirety, that is, with what is favourable as well as with what is unfavourable to the accused or the oppositeparty and when there is not this strict obligation or when it is not fulfilled the accused or the opposite party has a right to put in thefavourable portion which has been omitted; and the favourable portion is evidence for the accused or the opposite party, equally with theunfavourable portion, at least in this sense, that it must be taken as interpreting the unfavourable part, which cannot be given a meaning

as it stood by itself but only as modified by the favourable part. ...

So that not only is a prisoner entitled as of right to have a statement made by him considered in its entirety and in the absence of evidence of the falsity of any exculpatory portion, to have that exculpatory portion accepted as true; but, as another aspect of the same thing, he is entitled as of right to have such a statement considered in its entirety so that the true meaning of his statement may be made manifest for it is but in accordance with the plain dictates of justice and common sense that his statement, if used against him, shall be used only in the true sense in which he made it.

And not only is he so entitled, but, in order that the true sense of his statement may be ascertained, he is entitled to shew the facts and circumstances surrounding the making of it to the like extent that in the case of a contract he is entitled to shew them in order to assist in its

interpretation. [emphasis added] [ 23 ] In this case all of the statements made by Mr. Schneider to the police shall be admissible as evidence at trial. What weight, if any, that I place on those statements shall be left for me to determine at the conclusion of the trial. _______________________________ M. Hinds, J