R. v. McGenn, 2018 BCSC 935

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McGenn, 2018 BCSC 935 Date: 20180604 Docket: 66276 Registry: Chilliwack Regina v. Shayne Daniel Duncan McGenn and Sarah Margaret Sather Restriction on publication: A publication ban has been ordered under ss. 486.5(1) and 486.5(9) of the Criminal Code , prohibiting the publication, broadcast or transmission in any way, of any information that could identify three undercover operators in the proceedings. This publication ban applies indefinitely until further order of the Court.

Restriction on publication: A publication order has been imposed by the presiding judge in this matter restricting the publication, broadcasting or transmission in any way of identity of complainants or witnesses with the initials "K.N." or "A.S." by way of photographs, depictions or descriptions. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Devlin Oral Reasons for Judgment Voir Dire #2 – Voluntariness of Mr. McGenn’s Statements Counsel for the Crown: T. Dotten L.J. Kenworthy Counsel for the Accused McGenn: J.B.

Turner Counsel for the Accused Sather: D.M. Turko, Q.C. Place and Date of Hearing: New Westminster, B.C. April 30-May 4, May 7-11, 14-17, 28-31, 2018 Place and Date of Judgment: New Westminster, B.C. June 4, 2018 Introduction [ 1 ] The accused Shayne Daniel McGenn is charged with one count of second degree murder relating to the death of David Delaney on or about February 7, 2016 at Abbotsford, BC. Mr. McGenn’s co-accused Sarah Margaret Sather is charged with one count of being an accessory after the fact to murder. [ 2 ] The Crown seeks to have Mr.

McGenn’s post-arrest interview statements, which were audio and video recorded, found to be voluntary and admitted into evidence at trial. It is the Crown’s position that nothing in the statements themselves or the circumstances in which they were made raises a reasonable doubt as to their voluntariness. The Crown called a number of police witnesses who dealt with Mr. McGenn, including Corporal Derusha, who conducted the majority of the interviews, as well as Corporal Bernard, Sergeant Fortin and Inspector Dadwal. The undercover police officer who shared the cell with Mr.

McGenn also testified as well as the jail guards who dealt with Mr. McGenn and provided him with his medication. [ 3 ] Counsel for Mr. McGenn acknowledges that the concerns he had regarding the voluntariness of the statements were adequately addressed upon review of the evidence during the voir dire . While counsel did not concede the voluntariness of the statements he agreed with Crown counsel that the statements were obtained in compliance with the law as set out in R. v.

Oickle , 2000 SCC 38 [ Oickle ]. [ 4 ] In this voir dire , the Crown bears the onus of proving the voluntariness of the accused’s statements beyond a reasonable doubt. For the reasons set out below, I am satisfied that the Crown has done so. Background Facts [ 5 ] On May 13, 2016 at approximately 11:30 am Mr. McGenn was arrested outside a Tim Horton’s in Penticton, BC by Constable Howard. Shortly after he was arrested Mr. McGenn was turned over to Cpl. Bernard, a member of the RCMP Integrated Homicide

Investigation Team (“IHIT”), and escorted to the Penticton RCMP detachment. Cpl. Bernard was polite and courteous with Mr. McGenn during his transport to the detachment and throughout his dealings with Mr. McGenn over the weekend. Cpl. Bernard assisted Mr. McGenn so he could drink some coffee and loosened the handcuffs at Mr. McGenn’s request. Mr. McGenn was polite and responsive towards the police officers and actually assisted them with directions back to the detachment. [ 6 ] Cpl. Bernard ensured Mr. McGenn was provided access to counsel both by telephone as well as an in person meeting shortly after Mr.

McGenn was booked into cells. Beginning on Friday afternoon and continuing throughout the weekend, Cpl. Bernard escorted Mr. McGenn on cigarette breaks. It was apparent that Mr. McGenn was comfortable speaking with Cpl. Bernard and they developed a friendly rapport. The First Statement – May 13, 2016 [ 7 ] At 5:41 pm Cpl. Bernard took Mr. McGenn for a short cigarette break and then brought him into the interview room where Mr. McGenn met Cpl. Derusha for the first time. Between 5:45 pm and 11:23 pm Cpl. Derusha conducted his first interview of Mr. McGenn. The interview was periodically interrupted so that Mr.

McGenn could have a cigarette break or when coffee and food were brought into the room. Cpl. Derusha engaged in general conversation with Mr. McGenn about his background including his work at Big River Restaurant, his relationship with Mr. Delaney and Mr. McGenn’s activities in and around the date of Mr. Delaney’s death. Mr. McGenn repeatedly expressed concern over the well-being of his partner Ms. Sather and their child. It was apparent from his comments that Mr. McGenn was aware that he was not required to say anything to Cpl. Derusha but chose to engage in a discussion on a variety of topics. Both Cpl.

Derusha and Mr. McGenn were polite and respectful towards each other and the interview ended with an agreement to meet the next day. [ 8 ] When Mr. McGenn was returned to his cell he spoke to the undercover officer about the interview. Mr. McGenn said the police officers had treated him well and he realized that he was arrested on Friday night so the police could interview him throughout the weekend. It was apparent that Mr. McGenn’s main concern was the well-being of Ms. Sather and their daughter. Saturday May 14, 2016 – Meeting with counsel and JJP Hearing [ 9 ] At 4:50 am Mr.

McGenn was provided his medication by the jail guard and at 8:00 am he was provided breakfast. Shortly after that Cpl. Bernard removed Mr. McGenn from the cell so that he could speak to his counsel between 8:51 am and 9:30 am. At 10:21 am Mr. McGenn was again removed from his cell by Cpl. Bernard to attend the JJP hearing, returning to his cell at 10:53 am. Throughout the morning Mr. McGenn became increasingly frustrated as he waited to have a cigarette. Periodically Mr. McGenn would yell out into the hallway including calling out to Ms. Sather. Throughout the morning Mr.

McGenn and the undercover officer talked about a number of different things in a friendly manner. At one point Cpl. Bernard attended at the cell and reminded Mr. McGenn that he was subject to a no contact order with Ms. Sather and should stop trying to speak to her in cells. The Second Statement – May 14, 2016, 1:45 to 5:14 pm [ 10 ] At 1:43 pm Cpl. Bernard escorted Mr. McGenn for a cigarette break and then back to the interview room to meet with Cpl. Derusha. Before the interview started, Insp. Dadwal briefly spoke to Mr. McGenn to advise him that he has been speaking with Ms.

Sather and she was being treated well. The interview with Cpl. Derusha took place between 1:45 pm and 5:14 pm with periodic cigarette breaks. When the interview began Mr. McGenn told Cpl. Derusha he was frustrated he had to wait so long for a cigarette that morning but understood it was because of the JJP hearings. This interview was conducted in the same polite, respectful fashion as the earlier interview. Mr. McGenn occasionally became emotional when discussing his children, his ex-girlfriend Crystal and Ms. Sather. Mr.

McGenn also appeared upset when he discussed his recent hospitalization after trying to overdose. Although he was emotional at times during this interview Mr. McGenn would quickly regain his composure and continue to speak with Cpl. Derusha in a calm and relaxed manner about a variety of things including Mr. McGenn’s experience as a firefighter. [ 11 ] At one point during the interview Sgt. Fortin entered the interview room and explained to Mr. McGenn that the police had obtained phone records from Mr. Delaney’s phone and bank records showing the use of Mr. Delaney’s bank card. After Sgt. Fortin left the room Mr.

McGenn expressed his concern about Ms. Sather and asked what he could do to ensure she was released from custody. Cpl. Derusha told Mr. McGenn that nothing he said would result in Ms. Sather being released from custody. [ 12 ] The interview ended at 5:14 pm and Mr. McGenn was escorted back to his cell where he engaged in a friendly, casual conversation with the undercover officer. Mr. McGenn described the interview and told the undercover officer he thought his lawyer would be mad at him because he spoke to the police. As they ate their dinner, Mr.

McGenn and the undercover officer discussed a number of topics including music, video games, movies and fast food. Mr. McGenn appeared to be relaxed and jovial throughout their discussion. The Third Statement – May 14, 2016, 7:22 pm to 11:45 pm [ 13 ] Before being taken to the interview room Mr. McGenn and Cpl. Bernard went for a cigarette. When Cpl. Bernard asked Mr. McGenn if he was having any withdrawal symptoms Mr. McGenn stated he was not feeling the greatest but mainly because he was bored in the holding cell.

He described lying on the floor so he could try to see what was going on out in the hallway. [ 14 ] During this interview Sgt. Fortin joined Cpl. Derusha and provided a presentation of the evidence the police had obtained. As Sgt. Fortin went through the evidence Mr. McGenn’s demeanour changed. He became less talkative and became emotional when the

topic of his family was brought up. During this interview Cpl. Derusha encouraged Mr. McGenn to do the right thing for his family. At one point Sgt. Fortin confronted Mr. McGenn telling him that he knew Mr. McGenn killed Mr. Delaney. When Mr. McGenn became upset Cpl. Derusha is seen on the video placing his hand on Mr. McGenn’s shoulder to comfort him. As the interview progressed Mr. McGenn was provided cigarettes inside the interview room so he could smoke as he watched the evidence presentation. [ 15 ] At 10:27 pm, Insp. Dadwal entered the interview room and asked Cpl. Derusha and Sgt. Fortin to leave. Insp.

Dadwal reminded Mr. McGenn that he had been dealing with Ms. Sather and then proceeded to play a portion of Ms. Sather’s interview. During the interview Ms. Sather told Insp. Dadwal about the incident and that Mr. McGenn asked her to check on Mr. Delaney’s body the next day to see if he was breathing. After watching Ms. Sather’s statement, the tone of the interview changed and Mr. McGenn eventually admitted to killing Mr. Delaney by using his own belt to “finish him off”. [ 16 ] At 11:29 pm Insp. Dadwal left the room and Cpl. Bernard returned to escort Mr. McGenn back to his cell. Mr. McGenn told Cpl.

Bernard he felt relief and apologized for not being truthful with him earlier in the day. At 11:43 pm Mr. McGenn was placed back in his cell. [ 17 ] When he returned to his cell Mr. McGenn told the undercover officer about the interview and how Ms. Sather “tossed him under the bus”. He told the undercover operator he knew the investigators got what they needed. At 8:08 the next morning Mr. McGenn and the undercover officer talked as they ate breakfast and at 8:17 am Mr. McGenn was given his medication. Mr.

McGenn told the undercover officer that events that night continued to haunt him and he realized that he would be going to jail. Throughout the morning Mr. McGenn continued to chat with the undercover officer with the topic shifting from basketball back to the police interview and details about the incident. The Fourth Statement - May 15, 2016, 11:00 am – 1:36 pm [ 18 ] At 11:00 am Cpl. Bernard removed Mr. McGenn from the cell and took him for a cigarette. After that, Mr. McGenn had a shower and was provided a change of clothes. Cpl. Bernard also allowed Mr. McGenn to use the bathroom in an empty cell.

At 11:28 am Mr. McGenn was moved into the interview room where he remained with Cpl. Bernard until 1:36 pm. [ 19 ] During this interview Mr. McGenn provided Cpl. Bernard with further details of his version of how he killed Mr. Delaney. Mr. McGenn was relaxed and calm as he spoke to Cpl. Bernard. During the interview Mr. McGenn was provided with coffee and cigarettes. Mr. McGenn apologized for not telling Cpl. Derusha the truth when he spoke with him earlier. [ 20 ] At 1:36 pm Cpl. Bernard returned Mr. McGenn to his cell. At 2:27 pm he removed Mr.

McGenn from his cell and escorted him to the phone room so that he could speak to his lawyer. At 3:24 pm Sgt. Fortin placed Mr. McGenn back into his cell and at 3:29 pm he removed Mr. McGenn from his cell for a cigarette break. Mr. McGenn told Sgt. Fortin that he had been haunted every hour of every day and he felt a bit relieved even though he knew he was going to jail. At 3:36 pm Mr. McGenn was returned to his cell. The Legal Principles [ 21 ] The legal principles that govern my analysis in this voir dire are not in dispute.

Counsel agree that Oickle is the leading case on the test for determining voluntariness of statements made to persons in authority. Counsel have also referred to several other cases that apply the principles derived from Oickle , which I have considered, including R. v. Spencer , 2007 SCC 11 , R. v. Deboo , 2014 BCSC 1949 , aff’d, 2016 BCCA 62 [ Deboo ], R. v. Heatley , 2015 BCCA 350 and R. v. Tan , 2014 BCCA 9 . [ 22 ] Under the modern common law confessions rule, the onus is on the Crown to prove the voluntariness of an accused’s statement to a person in authority beyond a reasonable doubt: Oickle at para. 30 .

A confession will not be admissible if made in circumstances that raise a reasonable doubt that it was made voluntarily: Oickle at para. 68 . The confessions rule is meant to protect the rights of the accused and protect against the admission of false confessions without unduly limiting society’s need to investigate and solve crimes. [ 23 ] A statement will not be found to be voluntary if it was obtained through unacceptable threats or promises; in oppressive circumstances; or if the accused lacked an operating mind: Oickle at paras. 47-71 ; Deboo at para. 52 .

These factors are to be considered together in a contextual approach that is specific to the facts of the case and the particularities of the individual accused. Police trickery that would shock the community will also render a statement inadmissible, although this engages a distinct inquiry that is primarily concerned with maintaining the integrity of the criminal justice system. [ 24 ] Threats or promises will render a statement inadmissible if they raise a reasonable doubt about whether the detainee’s will was overborne: Deboo at para. 53 .

Explicit threats of violence or torture are impermissible, as is holding out the prospect of leniency from the courts: Oickle at paras. 48-49 . Lesser inducements, such as offers of psychiatric assistance, may render a statement inadmissible depending on the entirety of the circumstances: Oickle at para. 50 . On the other hand, moral or spiritual inducements are generally permissible because what is offered is not in the authorities’ control: Oickle at para. 56 .

A central consideration in the context of threats or promises is whether there has been a quid pro quo offer from the authorities: Oickle at para. 57 . [ 25 ] Oppression refers to the atmosphere and conditions surrounding the making of a statement. The question is whether the conditions in which the statement was made were so distasteful as to produce a stress-compliant confession, or overbore the will of the detainee in the sense that they believed it was futile to resist questioning, or came to doubt their own memory in the face of relentless accusations: Oickle at para. 58 .

Factors that can create an atmosphere of oppression include depriving the detainee of food, clothing, water, sleep, or medical attention; excessively aggressive, intimidating questioning for a prolonged period and, denying access to counsel: Oickle at para. 60 . [ 26 ] Further, an accused’s statement must be the product of an operating mind in order to be admissible. This requires that a detainee knows what they are saying, and that they are saying it to police officers who can use it to their detriment: Oickle at para. 63 . However,

it is not necessary for the court to consider whether the detainee is capable of making a wise choice or one that is in their best interests: Deboo at para. 57 . [ 27 ] With these legal principles in mind, I will turn to my contextual analysis of the relevant factors to determine if Mr. McGenn provided his statements voluntarily. ANALYSIS [ 28 ] During this voir dire I have reviewed the video and audio recordings of Mr. McGenn’s interviews. A significant amount of time was spent replaying some of the audio recordings to ensure that the transcript accurately reflected the words uttered by Mr.

McGenn during the interviews. In addition, I heard the testimony of the various police officers who conducted the interviews or had dealings with Mr. McGenn while he was in police custody during the weekend of May 13, 2016. As I have already stated, I am satisfied beyond a reasonable doubt that Mr. McGenn’s statements were voluntary. I will therefore canvass the factors identified in Oickle and set out the basis for my findings. (

i) Threats and Promises [ 29 ] There were no threats, promises or inducements in the nature of a quid pro quo . There were moral appeals to Mr. McGenn to do what was good for his children and his family. A message to Mr. McGenn from his ex-girlfriend was played during the interview. Nothing in the audio or video recordings suggests that Mr. McGenn was inappropriately pressured to respond to the officer’s questions. There is no evidence of any suggestion of a threat or promise made by the police investigators while dealing with Mr. McGenn. Indeed, on several occasions they reminded Mr.

McGenn that nothing he could do or say would result in the release of Ms. Sather nor could they assist him in exchange for information. While the police officers provided Mr. McGenn with several opportunities to smoke, including inside the interview room, it was clear that none of this bore on whether Mr. McGenn cooperated with investigators. Similarly, while Mr. McGenn was provided coffee and bagels while being interviewed and given access to a shower and clean clothes there is nothing to suggest that these items were provided to Mr.

McGenn to induce him to speak to the police. [ 30 ] I find that there is no evidence of any threats, promises or inducements made by any person in authority towards Mr. McGenn. (ii) Police Oppression [ 31 ] Mr. McGenn was treated with dignity and respect throughout his detention and interviews. He was not deprived of any necessities - he was given food, water, coffee, cigarettes and an opportunity to sleep. He was provided clean clothes to wear. The police obtained his medication from a pharmacy and ensured that he received the prescribed dosage throughout the weekend. There was no evidence that Mr.

McGenn was suffering any side-effects from his medication or that he was suffering from drug withdrawal. He was alert and responsive although at times he did become emotional. The police officers spoke to him in a calm, conversational tone and their demeanour was gentle. Their questions, while persistent, were neither intimidating nor aggressive. Overall, Mr. McGenn appeared to enjoy speaking to the police officers and expressed a genuine sense of relief after he told them his version of what took place with Mr. Delaney. [ 32 ] I find that there was no atmosphere of oppression in any of Mr.

McGenn’s dealings with the police or other persons in authority. (iii) Operating Mind [ 33 ] There is no evidence to suggest that Mr. McGenn lacked an operating mind at the time he gave the statements. While the interviews were lengthy and took place throughout the weekend, there was never any indication that Mr. McGenn’s will was overborne by the actions of the police. Mr. McGenn was given adequate breaks during these interviews and while it was clearly difficult for him to discuss what happened to Mr. Delaney and what may happen to his young children, he was able to quickly compose himself. Mr.

McGenn was lucid at all times and capable of engaging in conversations on a variety of topics including sports, movies, video games and fast food. In fact, Mr. McGenn had an impressive ability to recall elaborate details of basketball games and appeared to particularly enjoy speaking to the police officers about the Toronto Raptors. [ 34 ] The conversations Mr. McGenn had with the undercover officer in his cell after each interview also serves to inform my analysis. In addition to providing relevant context, the undercover officer’s evidence supports the Crown’s position that Mr.

McGenn had the ability to understand what he was saying in his interviews and to comprehend that what he was saying could be used against him. For example, following the first interview Mr. McGenn told the undercover officer that he had been treated well during the interview but he realized that the police were trying to be his friends. He also told the undercover officer that he was aware the police purposely arrested him on Friday night so that they could interview him throughout the weekend. Similarly, while Mr. McGenn and the undercover officer ate dinner after the second interview, Mr.

McGenn said his lawyer was going to be mad at him, in reference to the fact he had talked to the police. Mr. McGenn made similar statements to the undercover officer after he had been interviewed by Insp. Dadwal. In my view, all of these comments demonstrate that Mr. McGenn was well aware that the police had an agenda and he did not have to speak with them. [ 35 ] I find that Mr. McGenn, while at times emotional, made an informed choice to speak with the police officers and provide them with his version of what took place with Mr. Delaney. I am satisfied that the Crown has established that Mr.

McGenn possessed the cognitive ability to understand what he was saying and that what he said might be used against him. There is no evidence to suggest that Mr. McGenn lacked an operating mind. (iv) Police Trickery

[ 36 ] As set out in Oickle , this factor requires a distinct inquiry in determining whether the accused’s statement is voluntary. Having watched the video and audio recordings of Mr. McGenn’s interviews, and having heard the testimony of the police officers, I am satisfied beyond a reasonable doubt that there was no improper police trickery. CONCLUSION [ 37 ] I find that the Crown has established beyond a reasonable doubt that the statements made by Mr. McGenn during the interviews on May 13, 14 and 16, 2016 were free and voluntary. The statements are admissible in evidence if the Crown chooses to tender them at trial. “Devlin J.”