R. v. Martin Date:, 2016 BCPC 337

Citation: R. v. Martin Date: 20161026 2016 BCPC 337 File No: 39625-1 Registry: Gold River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ERICK TYRONE MARTIN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE CROCKETT (RE: VOLUNTARINESS OF ACCUSED’S STATEMENT) Counsel for the Crown: Rhian Opel Counsel for the Defendant: Douglas Marion Place of Hearing: Campbell River , B.C.

Dates of Hearing: August 10, September 20, October 11, 2016 Date of Judgment: October 26, 2016 [ 1 ] This is my ruling on the admissibility of the accused’s two statements, including an apology letter, into this trial. Mr. Martin made two video-recorded statements to Corporal Koutougos while he was at the Nootka Sound RCMP detachment. At the end of his second statement, Mr. Martin wrote a letter of apology to his brother, Brandon Martin. The first statement was short, followed by Mr. Martin speaking with counsel in private. The second began shortly after that interruption.

For simplicity, I will refer to the two statements, including the apology letter, as Mr. Martin’s statement, singular. My reasons apply equally to all three components of his statement. POSITIONS OF THE PARTIES [ 2 ] Mr. Marion, on behalf of Mr. Martin, argues that the statement ought to be ruled inadmissible, because it is a “stress-compliant confession” or a “non-coerced persuaded confession” as those terms are defined in R . v. Oikle , 2000 SCC 38 at paragraphs 36 to 40 . The Crown’s position is that, although there may be issues with the weight to be given to parts of Mr.

Martin’s statement, because of his alcohol consumption and possible memory loss, the statement is admissible. THE FACTS [ 3 ] Mr. Martin was arrested just after 1:30 a.m. on Saturday, February 21, 2015 in the yard of his residence, along with a female youth. He was charged with assaulting his brother, Brandon. Cpl. Koutougos arrested Mr. Martin, provided his Charter rights and warnings, and facilitated his access to counsel at the detachment prior to interviewing him. [ 4 ] Two other RCMP members, Cst. Ryan and Cst. Owen, had contact with Mr. Martin prior to his interview with Cpl. Koutougos. Cst.

Ryan contacted Legal Aid for Mr. Martin at the detachment. He did not have specific notes, nor any independent recollection of what conversation he had with Mr. Martin about the reason for his arrest. He did not make any promises or threats to him. He said that he conducted a tele-bail hearing for Mr. Martin later that evening, but could not recall if the hearing went by consent. The significance of this fact is that he cannot say whether or not the facts underlying the allegations were read in the presence of Mr. Martin at the bail hearing. [ 5 ] Cst. Owen was with Cpl. Koutougos at the scene where Mr.

Martin was arrested. He had some contact with Mr. Martin the following day when he came back on shift at noon. Mr. Martin had asked to speak to a member, so Cst. Owen went to his cell. He said he re-arrested Mr. Martin for assault causing bodily harm and discussed contacting counsel. Under cross-examination he testified that he wanted to ensure Mr. Martin knew why he was arrested and understood his Charter rights. He agreed that Mr. Martin wanted to know why he was in jail. He did not have specific notes or recollection of his conversation with Mr. Martin.

He did not make any promises or threats to him. [ 6 ] The first interview commenced shortly after noon on Sunday, February 22, 2015, and was interrupted so Mr. Martin could speak with counsel again. The second interview commenced after Mr. Martin spoke with counsel, at just after 12:30 p.m. [ 7 ] During the interview, Mr. Martin confirmed that Brandon was his brother, and that they lived at the residence where he was arrested. He discussed his relationship with his brother. He told Cpl. Koutougos that on Friday evening he had been drinking alcohol, playing video games, and cards at another residence.

He recalled returning to his own house and drinking more liquor there. He recalled Brandon answering the door when he arrived home. He said he did not know how the fight started between himself and his brother. He did not remember being arrested. He repeatedly said he did not remember the fight. But he also agreed that he knew he caused the injuries to Brandon. He said he did not know how he did that. Later in the statement he stated he and Brandon were punching each other. He provided a few other details about the assault. Many of Mr.

Martin’s statements regarding the details of the assault are qualified with words like “I’m not sure” and “I guess” and “I don’t know” and “that’s probably how it went”. He said he wanted to apologize, and wrote an apology letter to Brandon. In the latter part of his statement, and in the letter, he apologized for not letting Brandon know that he was coming home. However, Mr. Marion points out that copies of Mr. Martin’s text messages on that evening show that Mr. Martin did tell Brandon that he was on his way home. Mr. Marion points to this as corroborative evidence that Mr.

Martin does not remember the details of the evening. [ 8 ] In

summary, the statement contains some admissions of fact that appear to be reliable, and others that may not be. More weight may be accorded to some parts of the statement, and less, or perhaps none, to others. ANALYSIS [ 9 ] The issue for me to determine is whether this statement ought to be ruled inadmissible, or whether I should rule that it is admissible, recognizing that the statement must be assessed by the trier of fact (that is, me), with some caution, given that some of Mr.

Martin’s statements may not be reliable. [ 10 ] Applying the classic tests for voluntariness to this statement does not lead to its exclusion. The statement was not induced in any way by promises or threats. Mr. Martin possessed an operating mind. The police did not make use of any trickery in obtaining the statement. The circumstances of the interview were not oppressive. On the contrary, Cpl. Koutougos repeatedly states that he is trying to get at the truth, and asks Mr. Martin to try to think back and remember what he can about the events of the evening. Cpl.

Koutougos is polite and the tenor of the conversation is reasonably relaxed in the circumstances. [ 11 ] The most that can be said about the police conduct influencing the confession is that they told him about the circumstances of the allegations: that he had been arrested for assaulting his brother, that his brother was injured and in the hospital. Such information may have formed the basis of Mr. Martin’s statements and the apology.

[12] The police cannot be criticized for advising Mr. Martin of the reason for his arrest. They are obligated to do so pursuant tosection 10(

a) of the Charter. Nor is it objectionable for the police to describe to an accused their theory of the evidence, or tell them whatother witnesses may have said about what happened, during the course of an interview. [13] Nevertheless, Mr. Martin’s statement appears, in some respects, to be unreliable. He repeatedly states he has no memory ofengaging in a fight with his brother. His statements appear, at times, to be based on information provided to him by the investigators (i.e.,that his brother is injured, and Mr. Martin caused those injuries). [14] Mr.

Marion’s position is that the statement is inadmissible as a “stress-compliant confession” or a “non-coerced persuadedconfession” as those terms are defined in Oikle at paragraphs 36 to 40: 36 One of the overriding concerns of the criminal justice system is that the innocent must not be convicted: see, e.g., R. v. Mills, (SCC), [1999] 3 S.C.R. 668, at para. 71; R. v. Leipert, (SCC), [1997] 1 S.C.R. 281, at para. 4.

Giventhe important role of false confessions in convicting the innocent, the confessions rule must understand why false confessions occur.Without suggesting that any confession involving elements discussed below should automatically be excluded, I hope to provide abackground for my synthesis of the confessions rule in the next section. 37 Ofshe & Leo (1997), supra, at p. 210, provide a useful taxonomy of false confessions. They suggest that there are five basickinds: voluntary, [page28] stress-compliant, coerced-compliant, non-coerced-persuaded, and coerced-persuaded.

Voluntary confessionsex hypothesis are not the product of police interrogation. It is therefore the other four types of false confessions that are of interest. 38 According to Ofshe & Leo (1997), supra, at p. 211, stress-compliant confessions occur "when the aversive interpersonalpressures of interrogation become so intolerable that [suspects] comply in order to terminate questioning". They are elicited by"exceptionally strong use of the aversive stressors typically present in interrogations", and are "given knowingly in order to escape thepunishing experience of interrogation" (emphasis in original).

See also Gudjonsson & MacKeith (1990), supra. Another important factoris confronting the suspect with fabricated evidence in order to convince him that protestations of innocence are futile: see ibid.; Ofshe &Leo (1997a), supra, at p. 1040. … 40 A third kind of false confession is the non-coerced-persuaded confession. In this scenario, police tactics cause the innocent personto "become confused, doubt his memory, be temporarily persuaded of his guilt and confess to a crime he did not commit": Ofshe & Leo(1997), supra, at p. 215. For an example, see Reilly v. State, 355 A.2d 324 (Conn. Super.

Ct. 1976); Ofshe & Leo [page29] (1997), supra,at pp. 231-34.

The use of fabricated evidence can also help convince an innocent suspect of his or her own guilt. (Emphasis Added) [15] I note that the court places an important qualifier when describing the five types of false confessions, which I have emphasizedin paragraph 36: Without suggesting that any confession involving elements discussed below should automatically be excluded… [16] In the descriptions of both “stress-compliant confession” and “non-coerced persuaded confession”, there is the inference that thepolice conduct somehow taints the evidence, causing it to be unreliable.

In the former, the court used the example of “exceptionallystrong use of the aversive stressors typically present in interrogations", and the need for the interviewee to “escape the punishingexperience of interrogation". In the case of the non-coerced persuaded statement, the court refers to “police tactics” or “fabricatedevidence” to “convince an innocent suspect of his own guilt”. [17] By contrast, in the case before me, there is nothing objectionable about the conduct of Cpl. Koutougos, or either of the otherRCMP members who had contact with Mr. Martin prior to him providing his statement.

On the contrary, all appear to have conductedthemselves with the utmost propriety. Cpl. Koutougos repeats throughout the interview that he is just interested in the truth - what Mr.Martin actually remembers. It may be that Mr. Martin does not remember certain aspects of the evening in question, and he may fill inthe gaps of his knowledge with information given to him by the police.

However, this is not true of the entire statement. [18] At paragraph 65 of Oikle, under the heading of “Police Trickery”, the court made reference to Chief Justice Lamer’s discussionof the interplay of voluntariness and reliability in Rothman, (SCC), [1981] 1 S.C.R. 640: 65 … Lamer J. emphasized that reliability was not the only concern of the confessions rule; otherwise the rule would not beconcerned with whether the inducement was given by a person in authority.

He summarized the correct approach at p. 691: [A] statement before being left to the trier of fact for consideration of its probative value should be the object of a voir dire in order todetermine, not whether the statement is or is not reliable, but whether the authorities have done or said anything that could have inducedthe accused to make a statement which was or might be untrue.

It is of the utmost importance to keep in mind that the inquiry is notconcerned with reliability but with the authorities' conduct as regards reliability. (Emphasis added) [19] Of note, Chief Justice Lamer’s concurring decision in Rothman was also cited with approval in R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, a leading case on the right to silence, even though the majority’s decision in Rothman was overruled in thatcase.

Indeed, his decision in Rothman formed the basis of some of the changes the Supreme Court of Canada made in the law regardingthe right to silence and voluntariness in both Hebert and Oikle. [20] In Rothman, Chief Justice Lamer goes to great lengths to explain the rationale for the classic confessions rule from Ibrahim v.The King, [1914] A.C. 599, that statements by an accused are not admissible if they are made as a result of fear or prejudice or hope of

advantage held out by persons in authority. That classic statement, has, of course, been expanded in Oikle to include other bases for exclusion such as oppression, existence of an operating mind, and police trickery. [ 21 ] However, the rationale behind the original rule is instructive. Chief Justice Lamer quotes Lord Sumner at page 32 in Rothman : It is interesting to note that Lord Sumner went on to say (at pp. 610-11): It is to be observed that logically these objections [regarding threats or inducements] all go to the weight and not to the admissibility of the evidence.

What a person having knowledge about the matter in issue says of it is itself relevant to the issue as evidence against him. That he made the statement under circumstances of hope, fear, interest or otherwise strictly goes only to its weight. In an action of tort evidence of this kind could not be excluded when tendered against a tortfeasor, though a jury might well be told as prudent men to think little of it. Even the rule which excludes evidence of statements made by a prisoner, when they are induced by hope held out, or fear inspired, by a person in authority, is a rule of policy.

" A confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it "; Rex v. Warwickshall [sic] ((1783) 1 Leach, 263). It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence judges have thought it better to reject it for the due administration of justice : Reg. v. Baldry ((1852) 2 Den. Cr. C. 430, at p. 445).

Accordingly, when hope or fear was not in question, such statements were long regularly admitted as relevant, though with some reluctance and subject to strong warnings as to their weight. (Emphasis Added) [ 22 ] What this quote shows is that the rule excluding statements obtained where an accused made it as a result of a threat or promise by a person in authority, is based on policy , not reliability .

The final line makes clear, that, absent threats or inducements, statements of questionable reliability were routinely admitted as relevant, and their use became a question of weight for the trier of fact. [ 23 ] There are many cases which state that, once a confession is ruled admissible, it is to be treated by the trier of fact no differently than any other type of evidence. In other words, it is up to the trier of fact to decide: (

a) if it is true, in whole, in part, or not at all, and, (

b) what weight the confession is to be given, having regard to the manner in which it was obtained and all the circumstances connected with it being given. See Watt’s Manual of Criminal Evidence ,

Section 37.06 - Evidentiary Use of Confessions. [ 24 ] In conclusion, I see no basis on which to rule that the statements made by Mr. Martin are not voluntary and therefore not admissible. Reliability is a concern here. But in the circumstances of this confession, that is an issue of weight, not admissibility. [ 25 ] The two statements and the apology letter are admissible into evidence in the trial. The Crown may decide to lead further evidence, and defence may call a case. Other evidence may affect the weight I give to the confession at the end of the trial.

I may accept parts of the statement as reliable, and reject other parts as not reliable. I will make those determinations after I have heard all of the evidence in the trial. _________________________________ The Honourable Judge C. Crockett Provincial Court of British Columbia