R. v. Park, 2018 BCSC 945

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Park, 2018 BCSC 945 Date: 20180608 Docket: 27172 Registry: Vancouver Regina v. James Travis Park Pursuant to s. 486.4(2.1) of the Criminal Code , any information that could identify the victim known as A. shall not published in any document or broadcast or transmitted in any way. Before: The Honourable Madam Justice Watchuk Ruling on Admissibility of Statement Counsel for the Crown: D.G. Nearing M.J. Booker J. Gock (A/S) Counsel for the Accused: R.S. Fowler K.A. Blok Place and Dates of Hearing: Vancouver, B.C. April 16-20, 2018 April 23-27, 2018 April 30, 2018 May 1-4, 2018 May 9-10, 2018 Place and Date of

Summary of Reasons: Vancouver, B.C. May 18, 2018 Place and Date of Written Reasons: June 8, 2018 Table of Contents Paragraph Range I. INTRODUCTION [ 1 ] - [6] II. THE FACTUAL BACKGROUND [7] - [35] III. VOLUNTARINESS [36] - [145] A. Issues on Voluntariness [36] - [36] B. The Law [37] - [53] 1.

Summary of the Law Regarding Voluntariness [37] - [42] 2. Oppression [43] - [50] (

a) Generally [43] - [45] (

b) The use of evidence presentations [46] - [50] 3. Symptoms of Substance Withdrawal and Voluntariness [51] - [53] C. Positions of the Parties [54] - [58] D. Discussion and Conclusion on Voluntariness [59] - [145] 1. Threats or Inducements [60] - [65] 2. Atmosphere of Oppression [66] - [98] (

a) Mr. Park’s vulnerabilities [68] - [73] (

b) The theme related to the charge approval standard [74] - [78] (

c) The evidence presentation [79] - [81] (

d) Not allowing Mr. Park to leave the interview room [82] - [84] (

e) Mr. Park requesting to speak to his lawyer [85] - [89] (

f) Cpl. Fortin suggesting Mr. Park had made an admission [90] - [93] (

g) The length of the interview [94] - [98] 3. Withdrawal and hallucinations [99] - [136]

(

a) The Medical Evidence [105] - [127] (

b) Findings Regarding Alcohol Withdrawal and Hallucinosis [128] - [136] 4. Conclusion on Voluntariness [137] - [145] IV. CHARTER –

SECTION 7 [146] - [210] A. Positions of the Parties [151] - [165] 1. The Applicant [151] - [158] 2. The Crown [159] - [165] B. Issues regarding s. 7 of the Charter [166] - [169] C. Overview of the Law [170] - [195]

Section 7 of the Charter [173] - [189] (

a) Deprivation [173] - [178] (

b) The Principles of Fundamental Justice [179] - [189] 2. Section 24(2) of the Charter [190] - [195] D. Discussion and Conclusions on Charter Application [196] - [210] 1. Section 24(2) - “Obtained in a Manner” [196] - [204] 2. The

Section 7 Argument [205] - [210] APPENDIX A Table of Contents Paragraph Range I. INTRODUCTION [1] James Travis Park is charged with the offence of second degree murder in relation to the death of his seven-week old daughter, A., on March 1, 2015. [ 2 ] The Crown applies to tender in evidence the entirety of the statement made by the accused on October 29, 2016 as part of the Crown’s case at trial. The Crown says it may also use the statement made by Mr. Park on October 28, 2016 in cross-examination if Mr. Park testifies. Mr.

Park made inculpatory statements in the last 20 minutes of his police interview on October 29. The entirety of the inculpatory portion of the statement is included as an appendix with a short portion also inserted below. [ 3 ] This voir dire commenced on the sole issue of the voluntariness of Mr. Park’s statements. At the commencement of the second week of the voir dire the defence made an application to bring a late-filed Charter application seeking an order pursuant to sections 7 and 24(2) of the Charter excluding the statement that Mr. Park made on October 29.

The defence application to bring the Charter application was granted, and the applications then proceeded as a blended voir dire . [ 4 ] The trial, now judge alone after a re-election, is scheduled to commence on May 28, 2018. Due to the urgency, I informed counsel with a

summary of these Reasons on May 18 that the Crown application is allowed, and that the Charter application is dismissed. [ 5 ] In these reasons I will first address the issue of voluntariness and then turn to the Charter issue. On voluntariness the Crown has the burden of proof beyond a reasonable doubt, and on the Charter issue the defence must prove the breach on a balance of probabilities. Although the voir dire was blended, the analysis of the two issues is separate. [ 6 ] Many of the facts set out in the discussion of voluntariness are also relevant to the discussion of the Charter issue.

The evidence was extensive and detailed, and although these Reasons will not incorporate all of the evidence, the totality of the evidence has been considered. II. THE FACTUAL BACKGROUND [ 7 ] The issues arose during the 29-hour period that Mr. Park was held in custody in the Burnaby RCMP Detachment (also referred to as the “Burnaby Cells”) from 4:30 p.m. on Friday, October 28, 2016 to approximately 9:25 p.m. on Saturday, October 29, 2016.

For ease of reference I will often refer to October 28, 2016 as “Friday” and October 29, 2016 as “Saturday”. [ 8 ] In the 15 days of evidence on this blended voir dire the court observed and heard approximately 15 hours of video only, audio only, and video with audio; and reviewed approximately 550 pages of transcripts of the audio played in court. The witnesses, all called by the Crown, were four police officers, a civilian cell guard, and four doctors who were qualified to give expert evidence in their medical fields of expertise.

Counsel filed Admissions pursuant to s. 655 of the Criminal Code regarding much of the time that Mr. Park was in custody in the Burnaby Cells; thus in-court observation of the video of Mr. Park overnight was not necessary. [ 9 ] Mr. Park’s arrest for the second degree murder of A. occurred on Friday October 28, 2016, at 3:45 p.m. at Lougheed Town Centre Station. Members of the Integrated Homicide Investigation Team (“IHIT”) attended and read a prepared arrest script to Mr. Park. [ 10 ] At approximately 4:30 p.m., Csts. Sabo and Lee of IHIT transported Mr. Park to the Burnaby Cells.

At various times during the booking-in process, Mr. Park advised IHIT and Burnaby RCMP members that he was a smoker, an alcoholic, had anxiety for which he had a prescription for Ativan, and that he had not consumed alcohol for approximately 14 hours. Cst. Sabo asked directly and Mr. Park stated that he did not have suicidal thoughts. The “S” or suicide box was not checked on the booking-in form.

[ 11 ] Mr. Park was provided access to his counsel shortly after he was booked in. IHIT members obtained Mr. Park’s Ativan prescription from his mother and filled it at a drug store for him later that night. [ 12 ] After Mr. Park had a cigarette break with Cst. Lee from 7:47 to 9:54 p.m. on October 28, Cpl. Kee conducted a warned statement with Mr. Park (the “First Statement”). In the early stages of the interview, Cpl. Kee asked Mr. Park about his alcohol consumption but Mr. Park declined to answer. When asked about his present situation Mr. Park said that he might be sick from nausea because of his anxiety.

He requested that the officers obtain his prescription for anxiety medication from his mother. [ 13 ] Following the First Statement, Mr. Park was taken for a cigarette in the garage and then returned to Cell 5. At 10:45 p.m. Cpl. Whalley, the Burnaby cells officer in charge or NCO, provided Mr. Park his Ativan, and then at Mr. Park’s request, a book. Mr. Park remained in Cell 5 overnight from Friday into Saturday. Between 12:31 a.m. and 8:43 a.m. Mr. Park was lying on his bed except when he got up six times to use the washroom or walk around his cell. No unusual behaviour was noted.

Instances of unusual behaviour before the end of the Second Statement are noted below. [ 14 ] On Saturday morning, Mr. Park requested his medication at 8:57 a.m. and received it at 9:00 a.m. At 9:21 a.m. Mr. Park appeared to speak to someone at his cell door, but there was no indication anyone was on the other side of the door. At approximately 9:45 a.m. Mr. Park was wiping at the ceiling with toilet paper and touching the walls. At 9:45 a.m. Mr. Park reported seeing flies and a sticky floor to the Burnaby Cells Civilian Guard Motak who reported this to Cpl. Kee and NCO. [ 15 ] At 10:03 a.m. when Cpl.

Kee took Mr. Park to the garage for a cigarette Cpl. Kee asked Mr. Park about his sleep and learned that it had been interrupted by noise from a prisoner in another cell. Mr. Park described the tacky paint on the ceiling and wall and seeing the fruit flies on the ceiling. During this conversation Mr. Park was standing calmly in one place with his cigarette. Mr. Park also asked about the process of his upcoming telephone hearing, the latest World Series baseball game, and made jokes about his being in a hotel with free food. [ 16 ] After the cigarette break, Cpl. Kee went with Mr. Park to Cell 5 where Mr.

Park showed Cpl. Kee where he saw the flies and tackiness. Cpl. Kee observed that the paint on the ceiling was marked with black spots, possibly from mold. [ 17 ] Between 11:02 and 11:15 a.m. Mr. Park was taken from his cell to consult with his counsel. He was then taken for a telephone hearing with a judicial justice of the peace (“JJP hearing”) between 12:59 and 1:10 p.m. Around this time, Mr. Park reported to an IHIT member that the cement slab in Cell 5 was moving, and that he could hear the caulking sliding back and forth. Officers observed Mr. Park to be jittery and shaky.

In the video footage of the cell he appeared to shield himself from the wall at times, and touched the corner between the wall and the ceiling. [ 18 ] From 1:11 to 6:20 p.m., Cpl. Kee conducted a second warned interview with Mr. Park (the “Second Statement”). At 1:25 p.m. Cpl. Kee escorted Mr. Park to the bathroom. At 1:33 p.m. Mr. Park asked Cpl. Kee if he could be moved to a different cell because there was a slab hanging off the wall and Mr. Park said he thought it would fall down. Cpl. Kee agreed Mr. Park could be moved to a different cell. Mr. Park was given food and a cigarette between 2:50 and 3:10 p.m.

While on a bathroom break in a cell, Mr. Park asked Cst. Lee if “it fell” and then a few minutes later told Cst. Lee that a “slab” in the cell was making noise and moving. There was no further mention by Mr. Park of these hallucinations after approximately 3:00 p.m. on Saturday. [ 19 ] The Second Statement continued and the evidence presentation portion took place between 4:00 and 5:35 p.m. with Cst. Gaiger. At 5:43 p.m. Cpl. Fortin entered the interview room to speak with Mr. Park. At 5:48 p.m., after shaking hands with Cpl. Fortin, Mr. Park stated “I appreciate you guys being good”. Cpl.

Fortin replied that they do not mean for it to be tactical, but rather to be respectful. Mr. Park also asked to leave the room and was told that he could not. [ 20 ] At 5:56 p.m., Cst. Lee and Cpl. Kee escorted Mr. Park to the garage for a cigarette. The Second Statement continued from 6:00 to 6:20 p.m., when Mr. Park made inculpatory statements to Cpl. Kee in the garage. The entirety of the inculpatory statement is included at Appendix A to these Reasons. A portion of that part of the Second Statement of Saturday, October 29 is as follows: Travis PARK: Yeah. Waste of a life, fuckin’ five seconds. Cst. R.

KEE: What do you mean man? Travis PARK: What a waste of a life, for a decision that I made so quickly. Cst. R. KEE: You just snapped? Is that what you mean by it happened so quickly? Travis PARK: Yeah. Cst. R. KEE: Was she crying? Travis PARK: Huh? Cst. R. KEE: Was she crying? Travis PARK: Yeah and I was fuckin’ hammered, like beyond. Cst. R. KEE: How much had you been drinking? Travis PARK: A lot like enough to barely remember it. Cst. R. KEE: Mm-hm. What was she doing? Was she in the swing? Travis PARK: No.

Cst. R. KEE: Had you taken her out of the swing ‘cause she was crying or? (Audio time: 05:08:38) Travis PARK: Um yeah uh no, I don’t know, yeah at one point I did go took her put in the swing, went back, took her again. Cst. R. KEE: So when you took her from the swing and you went and came back and put her in the swing, what happened? Travis PARK: She just cried, cried and cried and cried and cried. Cst. R. KEE: Yeah, she wouldn’t go to sleep? Travis PARK: No. [ 21 ] Cst. Lee escorted Mr. Park to his different cell, Cell 6, at 6:20 p.m. and left him alone in the cell. In notes dictated after Mr.

Park was in his cell, Cpl. Kee described Mr. Park’s demeanour and physical locations in the garage from 6:00 to 6:20 p.m. He was first standing beside a wall and then crouched down beside a police car. [ 22 ] At 6:35 p.m., Mr. Park requested to speak to Cpl. Kee and advised him he was experiencing hallucinations including of cartoons on the roof and a red dog, and a belief that the guards intended to hurt him. He expressed suicidal ideations saying: “Now I don’t wanna live”. Cpl. Kee reassured Mr. Park that he was safe and offered Ativan, which Mr. Park declined as he thought it was making him worse. Cpl.

Kee enquired as to whether he was detoxing from alcohol, and assured Mr. Park that he was safe. Cpl. Kee told Mr. Park he would tell the guards so they could get medical help. [ 23 ] Cpl. Kee observed Mr. Park at 6:35 p.m. as drastically changed from when the statement concluded at 6:20 p.m. This observation is consistent with the expert evidence of Dr. Wood who described the often sudden onset of delirium tremens, or the last and most severe stage of alcohol withdrawal. [ 24 ] Cpl. Kee left the cell and informed Cpl. Whalley, the Burnaby Cells NCO, that Mr.

Park was hallucinating, that he had made suicidal comments, and requested that they put him on suicide watch. With regard to alcohol withdrawal, Cpl. Kee informed Cpl. Whalley that Mr. Park’s alcohol consumption had been 12-15 beers per day, and Cpl. Whalley replied that he knew that alcohol detox could be harder than heroin detoxing. Cpl. Whalley said that he would speak to Mr. Park and assess his needs for medical care. Cpl. Kee indicated IHIT’s interview was over and that Cpl. Whalley should see to medical care for Mr. Park.

In this process the visiting police agency, IHIT, was leaving the Burnaby RCMP Detachment. Mr. Park would remain in custody at Burnaby cells. [ 25 ] Following his conversation with Cpl. Kee, Cpl. Whalley did monitor Mr. Park on the cell block video. He also monitored other prisoners and did his administrative duties, including conducting a bail hearing for one prisoner around 8:00 p.m., and dealing with other officers’ concerns as they arose. He did not go to see Mr. Park, although he said he intended to go when he had an opportunity. He did not seek medical attention for Mr. Park. He did not discuss Mr.

Park’s condition with Guard Watts, because he thought Guard Watts was present when Cpl. Kee told him about Mr. Park not wanting to live anymore. [ 26 ] Cpl. Whalley testified that he has a duty of care to ensure the health and well-being of prisoners when they are in the custody of the RCMP. His obligations regarding prisoners’ health include that if prisoners require medical assistance, he has to ensure that medical care is provided and their needs are met. If a person requested medical attention or it was apparent that they required it, it is his responsibility.

He believes he has a duty of care because the police are responsible for prisoners the entire time that they are in custody. It is RCMP policy that prisoners are owed a duty of care. [ 27 ] Cell Guard Watts, who was the only other person working with Cpl. Whalley in the cell block that night, also monitored Mr. Park on his video monitors. Guard Watts described the main part of his job as ensuring the health, safety and welfare of prisoners and if there are any concerns he addresses it with the cell NCO.

However, if there is a medical situation, because he cannot enter a cell unless the NCO is present, he will immediately contact the cell NCO. [ 28 ] Guard Watts testified that although “suicide watch” is not a term used often, his response to being told a prisoner had expressed suicidal thoughts would be to have them placed in a cell as close to his work station as possible because it allows for a quicker response time. He would also enlarge the view of that person’s cell on his monitor screen.

If he observes odd behaviour, he will go to the cell and speak to the prisoner, attempt to establish a dialogue, and if he is satisfied that the threat is clear and imminent he will notify the cell NCO right away. The standard he uses to determine if a threat is clear and imminent is despondency, crying and agitation. [ 29 ] Guard Watts recalled that when he came on duty Saturday night, he saw a notation in the Prisoner Log from 9:47 a.m. that morning indicating Mr. Park had started to hallucinate. He was told that Mr. Park was changing cells because of hallucinations. He did not know that Mr.

Park was withdrawing from alcohol. Overall he was satisfied that Mr. Park appeared to be calm with no indication of agitation like a lot of prisoners. He does not recall having discussions with anyone from IHIT regarding Mr. Park requiring medical attention, or that he had expressed suicidal thoughts. He left the room when Cpl. Kee was speaking with Cpl. Whalley about Mr. Park. [ 30 ] That night Guard Watts noted that Mr. Park was resting on his bed until about 8:00 p.m. at which time he began alternately pacing, standing and sitting. This was observed by the court in the video footage.

At 8:10 p.m. when Watts went to Cell 6, Mr. Park declined the medication offered to him. He also said to Guard Watts words to the effect of “You’ve got to understand I really loved her.” Guard Watts said Mr. Park was teary eyed and very anxious and upset, but he did not conclude that Mr. Park required medical attention at that time as nothing led him to believe that he would engage in self-harm. Guard Watts returned to his office and continued to monitor Mr. Park, he believed on the stand-alone larger monitor. [ 31 ] From 8:15 to 8:19 p.m. Mr.

Park sat on the bed at times rocking back and forth and putting his head in his hands. At 8:19 p.m. he walked to the cell door to look out the window and then returned to sit on the bed. At 8:20 p.m. Mr. Park is seen on the video attempting to choke himself with both hands on his neck. From 8:21 to 8:25 p.m. Mr. Park used the edge of the hardcover book to

repeatedly harshly swipe at his neck below his right ear. Those actions resulted in abrasions and swelling on his neck. [ 32 ] Guard Watts observed Mr. Park attempting self-harm with the book at 8:24 p.m. on the video monitor. Guard Watts immediately advised Burnaby RCMP members, Cpl. Whalley and Cst. Tarape. Cpl. Whalley had not seen the self-harming activity on the video monitors in his office. The self-harm occurred for approximately five minutes in total before the officers arrived in Mr. Park’s cell at 8:25 p.m. [ 33 ] Cpl. Whalley and Cst. Tarape apprehended Mr.

Park under the Mental Health Act , RSBC 1996, c. 288, handcuffed him, and moved him to Cell 11, a larger holding cell where Mr. Park was left alone. He can be seen in the video putting his left foot through his hands that are handcuffed. [ 34 ] Cpl. Whalley and Guard Watts had called immediately for an ambulance and emergency health services (EHS). The paramedics attended at 9:10 p.m. There was no evidence regarding the progress of EHS’s arrival time after Mr. Park was secured in Cell 11 at 8:30 p.m. [ 35 ] Due to Mr.

Park’s elevated heart rate and blood pressure, chest pain, statement that he was seeing things, and the possibility that he was in “some kind of psychosis”, the paramedics determined that Mr. Park required further medical evaluation. He was transported to Burnaby General Hospital by ambulance. Cst. Harker of IHIT accompanied Mr. Park and the paramedics in the ambulance, and Cst. Tarape followed in his police vehicle. III. VOLUNTARINESS A. Issues on Voluntariness [ 36 ] The issue for the court is whether Mr. Park voluntarily made the statements the Crown seeks to tender in evidence at trial.

The following questions are relevant in determining voluntariness: (

a) Did Mr. Park have an operating mind at the time that he made the statements? (

b) Was Mr. Park’s will to freely choose to speak or remain silent overborne by: (

i) the presence of threats or inducements; and/or (ii) oppressive conditions? (

c) Did any combination of the above factors operate to overcome Mr. Park’s will to freely choose to speak or remain silent? B. The Law 1.

Summary of the Law Regarding Voluntariness [ 37 ] The test for determining whether statements are voluntary was set out by the majority of the Supreme Court of Canada in R. v. Oickle , 2000 SCC 38 . The Crown has the burden of proof to establish beyond a reasonable doubt that the statement is voluntary. [ 38 ] There are a number of factors that could bring the voluntariness of a statement made to police into doubt. These include threats or promises, oppression, lack of an operating mind, and police trickery that would shock the conscience of the community.

There are also the overarching concerns of reliability and the accused’s right to silence: R. v. Singh , 2007 SCC 48 at paras. 30 , 35. [ 39 ] As operating mind and inducements are not at issue, I do not intend to cover the law on these factors in any detail. Aspects of these factors, as they are relevant to oppression, are considered below. [ 40 ] The individual characteristics of the accused are relevant considerations in assessing the voluntariness of statements: Oickle , at para. 42 . An analysis of the factors and the accused’s statements includes objective and subjective aspects.

This is because the confessions rule “…is concerned with voluntariness, broadly understood”: Oickle , at para. 27 . As Williams J. noted in R. v.

Pickton, 2006 BCSC 995 : [179] Voluntariness involves a consideration of both objective and subjective factors, and it is therefore necessary to be sensitive to the particularities of the subject when assessing whether a statement was made freely and voluntarily. [ 41 ] Where there is expert evidence on the accused’s state of mind, the court must still consider the actual factual and legal meanings ascribed to the accused’s behaviour during the interviews to arrive at its own conclusion: R. v. Hosack , 2012 BCSC 2139 at para. 86 . [ 42 ] The court must consider all the relevant factors in a contextual manner.

The Oickle factors may overlap and operate together to render a statement involuntary. Therefore, it is necessary to understand the circumstances surrounding the statement and ask if they give rise to a reasonable doubt as to the voluntariness of the statement. Where the conduct of police in its totality serves to overwhelm the particular accused’s choice to make statements, the statements are not voluntary. A statement is inadmissible if there is a reasonable doubt about whether the will of the subject has been overborne: Oickle , at paras. 27, 47, 57 and 71 . 2. Oppression (

a) Generally

[ 43 ] Justice Iacobucci in Oickle described oppression at 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 to escape those conditions. Alternately, oppressive circumstances could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession. [ 44 ] Oppressive conditions clearly have the potential to produce false confessions.

If the conduct of authorities creates a general atmosphere which is so oppressive that the accused’s free will is overborne by the interrogator, the statement is not voluntary. The court must not be left in reasonable doubt that this has occurred. [ 45 ] As with all of the Oickle factors, the oppression analysis is contextual, with no one factor or combination of factors reducing themselves to an automatic formula.

However, the Court in Oickle provided a non-exhaustive list of factors relevant to oppression including: “depriving the suspect of food, clothing, water, sleep or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time”, or the use by the police of “non-existent evidence”: Oickle , at paras. 60, 61 . (

b) The use of evidence presentations [ 46 ] Police can engage in an evidence presentation during an interrogation. If the police misinform the accused about the evidence or exaggerate the evidence it may bear on the voluntariness of any resulting statements. However, presenting the case against a suspect “as insurmountable” is not itself objectionable: R. v.

Camille , 2018 BCSC 301 at para. 56 ; Singh , at para. 50 . [ 47 ] In Camille , Holmes J. excluded the accused’s statement to police, finding that the police’s overstatement of the strength of the evidence against the accused raised a reasonable doubt in the circumstances as to the statement’s voluntariness. Justice Holmes was concerned the accused may have admitted his guilt because the officer had convinced him this was the inevitable conclusion, rather than because the accused himself knew: Camille , at para. 61 . She held: [54] In short, Cpl. Bell gave Mr.

Camille the impression that objective evidence established that only he could have killed Mr. Adolph, when, according to the evidence in the voir dire , this was not necessarily the case. Video-footage showed Mr. Camille and Mr. Adolph coming and going to and from the general area of their room, but a roof overhang obscured the first few feet from the building such that one could not see them actually entering or leaving the particular room.

Also, on the evidence in the voir dire , a person could have entered or left the room without being shown at all if they walked close to the building in the area the overhang obscured. [ 48 ] The evidence presentation was one factor in the circumstances weighing in favour of exclusion in Camille , including uncomfortable conditions (cold, lack of sleep, and lack of proper hearing aids), vulnerabilities from the accused’s appalling life experiences, inducements, and repeated assertions by the accused of his right to silence. [ 49 ] In R. v.

G.C.Z. , 2015 BCSC 539 , Verhoeven J. commented on the police interviewer’s use of an evidence presentation, noting the presentation emphasized that the police had ample evidence proving the accused’s involvement in the murder. The police eventually terminated the interview on the third day because there was concern the accused’s mental state may be rendering the process unfair. [ 50 ] Justice Verhoeven found that despite the bizarre behaviour it was “very clear” the accused’s will was not overborne: G.C.Z. at para. 73 .

This was because the accused refused to provide details about the homicide, clearly drawing a line as to what she would talk about. She revealed information based on moral considerations, such as when she stated that she would not have exposed her young child to horrific violence. In other words her will was not overborne because she chose what to say: G.C.Z. at para. 75 . Her mental disorder did not affect her perception of reality or mental functions during the statements: G.C.Z. at para. 40 . Further, there was a finding that she was not fatigued to the point that it impacted her ability to remain alert. 3.

Symptoms of Substance Withdrawal and Voluntariness [ 51 ] Evidence of symptoms of withdrawal may contribute to a particular accused’s vulnerabilities when he gives a statement to police, and can raise reasonable doubt about the voluntariness of the statement: R. v. Davidson , 2017 BCSC 2497 at para. 122 . [ 52 ] In Davidson , the accused was charged with second degree murder and transported to the Abbotsford Police Detachment where he was questioned by police in two separate warned interviews over the course of two days, for a total of seven hours. Prior to the second interview, Mr.

Davidson advised the police that he was experiencing withdrawal symptoms from his addiction to heroin and methamphetamine, including that he was “hurting”, “hot and cold”, and “tossing and turning”: Davidson at para. 18 .

Justice Armstrong found the accused’s evident withdrawal from heroin and methamphetamine at the time of giving the statement contributed to his vulnerability. [ 53 ] Justice Armstrong found the combination of the police conduct (including telling the accused his silence was childish, persistent questioning when he said he was tired, and deceptive remarks about the evidence and charges) and the accused’s vulnerability undermined Mr. Davidson’s right to remain silent. The statement was excluded. C. Positions of the Parties [ 54 ] The Crown submits that: (

a) Mr. Park had an operating mind at the time that he made the statements; (

b) Mr. Park’s will to freely choose to speak or remain silent was not overborne by:

(

i) the presence of threats or inducements; and/or (ii) oppressive conditions; and (

c) Mr. Park’s will to freely choose to speak or remain silent was not overborne by any combination of the above factors. [ 55 ] The Crown takes the position that police trickery is not at issue in this case. [ 56 ] The defence concedes that Mr. Park had an operating mind throughout the two statements made while he was in custody in the Burnaby Cells on October 28 and 29. No issue is raised concerning the presence of any specific threats or inducements. [ 57 ] The defence says that a combination of factors combined to create an atmosphere of oppression that resulted in Mr. Park’s will becoming overborne.

The factors that they say combine in this case to create an atmosphere of oppression which gives rise to reasonable doubt as to the voluntariness of the statement are: (

a) Mr. Park’s vulnerabilities including his anxiety, withdrawal from alcohol and his having recently experienced hallucinations; (

b) the length of the interview on Saturday; (

c) the number of times Mr. Park requested to speak to his lawyer, especially nearing the end of the interview after the evidence presentation; (

d) the use of the evidence presentation which upset Mr. Park. Corporal Kee described the experience as a “traumatic thing to have to relive it in the interview room”; (

e) the theme related to the charge approval standard having been applied by Crown; (

f) not allowing Mr. Park to leave the interview room when he attempted to do so at the end of the evidence presentation; and (

g) Cpl. Fortin’s erroneous suggestion to Mr. Park that he had made an inculpatory admission. [ 58 ] The defence did not make submissions on police trickery, other than the concerns regarding the evidence presentation in the context of oppression. D. Discussion and Conclusion on Voluntariness [ 59 ] This discussion first addresses the absence of any threats or inducements. It then addresses the factors the defence says combined to create an atmosphere of oppression. The withdrawal symptoms and the evidence of Mr. Park’s condition during the statements are then outlined and discussed as a separate section.

The final portion of the voluntariness reasons is the conclusion based on the factors raised by the defence and the withdrawal evidence. 1. Threats or Inducements [ 60 ] There is no submission that any person in authority threatened or induced Mr. Park at any point in time while Mr. Park was in police custody on the weekend of October 28 and 29, 2016, or that Mr. Park believed he was under threat before or during the Statements. Mr. Park’s belief that he had been threatened by the guards first arose after the Second Statement.

There is no evidence that could support any allegations of threats or inducements. [ 61 ] The audio and video recordings, as well as testimony from Cpl. Kee, Cst. Lee, Guard Watts, Cpl. Whalley and Cst. Harker, establish that all of the persons in authority who had any interactions with Mr. Park over his 29 hours in custody treated Mr. Park courteously and made no threats. Mr.

Park was offered comforts throughout this period of detention, including food, water, cigarettes, a blanket and a book, but none of the comforts assumed the character of an inducement. [ 62 ] In the First Statement on Friday at approximately 7:48 p.m., Cpl. Kee reviewed the right to silence and advised Mr. Park that any threats or promises made by any police officers to make him feel he should or should not speak to Cpl. Kee had no effect. Cpl. Kee testified he wanted to ensure that Mr. Park knew he did not have to speak with him, and to ensure that Mr. Park knew that any threats or promises were not true. Mr.

Park confirmed he understood that he did not have to talk, and exercised his right to silence in respect of questions he was asked at various times throughout both Statements. [ 63 ] At 5:28 p.m. on Saturday, shortly before making the inculpatory statements, and at other times in the interviews Mr. Park acknowledged that he had been treated well by the police. His rapport with Cpl. Kee is demonstrated by Mr. Park’s saying that he knows the officer is listening to him. [ 64 ] Mr.

Park’s first mention of any fear of any person in authority occurred at approximately 6:35 p.m. on Saturday after the Second Statement had concluded and he was back in his cell. Mr. Park told Cpl. Kee that the cell guards were attempting to harm him. [ 65 ] There is no evidence of any threats or inducements before or after the Second Statement had concluded. As will be discussed below, Mr. Park’s fears arose after he entered into the severe stage of alcohol withdrawal after the Second Statement. 2.

Atmosphere of Oppression [ 66 ] The Crown submits there is no factor or combination of factors that could be said to have created a general atmosphere of oppression so that Mr. Park’s free will was effectively overborne. As noted above, Mr. Park was provided comforts regularly while in

custody, including food, water, cigarettes, and use of the bathroom. Mr. Park was also given a hardcover book upon his request. His medication was obtained and provided. [ 67 ] The factors the defence submits created an atmosphere of oppression are re-stated and discussed in turn. (

a) Mr. Park’s vulnerabilities [ 68 ] The voluntariness analysis must take place in the context of this accused person’s vulnerabilities and particularities. [ 69 ] Mr. Park has anxiety for which he had a prescription for Ativan. Mr. Park told Cpl. Kee that he was taking Ativan twice daily. All the relevant persons in authority, including the IHIT team members and members of the Burnaby RCMP and the civilian guards at the Burnaby Cells, were aware that Mr. Park had a prescription for Ativan to treat anxiety. The medical condition was recorded when Mr.

Park was booked into the Burnaby Cells, and the medication was noted on the Prisoner Medication Log. Cpl. Kee was mindful throughout the interviews of Mr. Park’s anxiety. [ 70 ] Cst. Harker attended at Mr. Park’s mother’s home on October 28 following Mr. Park’s arrest. One of the reasons that he did so was to obtain the unfilled prescription for Mr. Park’s Ativan which he took to a pharmacy the same evening. Cst. Harker delivered Mr. Park’s medication to Cpl. Kee at the Burnaby Cells that night. Mr. Park took his medication at 10:48 p.m. on October 28. The next morning at approximately 9:00 a.m. Mr.

Park requested and received his medication in his cell. Mr. Park declined medication offered to him on Saturday evening at 6:35 p.m. by Cpl. Kee and again at 8:10 p.m. when offered by Guard Watts. [ 71 ] Mr. Park is also a severe alcoholic. When he was arrested he had not had any alcohol for 14 hours. He experienced the stages of alcohol withdrawal throughout Saturday. The medical evidence regarding alcohol withdrawal is discussed in more detail below, but in sum, Mr.

Park experienced some shakiness and periodic hallucinations commencing on Saturday morning, culminating in his descent into delirium tremens, the final and most severe stage of withdrawal, on Saturday evening. [ 72 ] During the First Statement Mr. Park declined to answer when Cpl. Kee asked him how much alcohol he usually consumed. Although Cpl. Kee did not therefore know the extent of Mr. Park’s alcoholism, throughout the Second Statement after the hallucinations that morning, Cpl. Kee monitored Mr. Park to ensure that he was able to continue with the questioning. [ 73 ] Mr.

Park also experienced occasional appropriate emotional upset during the Second Statement, primarily in response to the subject matter of the evidence presentation. He made some expression of hopelessness for the future. Cpl. Kee described him as frustrated at an earlier point. He appeared angry that the police had contacted his mother during the investigation. His most emotional state was in the garage with Cpl. Kee where he made the inculpatory statements at the end of the second interview. Cpl. Kee described him then as sad. (

b) The theme related to the charge approval standard [ 74 ] At the beginning of the Second Statement Cpl. Kee provided an explanation of the difference between the power of arrest for the police and the Crown charge approval standard. He testified that the reason for doing so was that he was trying to communicate that it was not just the police but that the Crown had also reviewed the evidence. In charging Mr. Park with murder, they believed that there is a strong likelihood he would be convicted. [ 75 ] In the course of this conversation, Mr.

Park asked: “So before we even go in there if there was a trial there-there would already basically be a verdict?” Cpl. Kee responded “absolutely not” and explained to Mr. Park he had been referring to the Crown charge approval standard, not the trial. Mr. Park continued to be engaged in the lengthy conversation that continues regarding evidence at trial until he requests a bathroom break. Cpl. Kee did not overstate or misrepresent the process or the law to Mr. Park. There is no indication of Mr.

Park’s being upset or disillusioned about the process as a result of the accurate description of the varying standards applicable to the police, Crown and courts. [ 76 ] After the evidence presentation Cst. Gaiger told Mr. Park there was “no doubt in his mind” that Mr. Park inflicted the deceased’s injuries. [ 77 ] Although the defence submits this had an immense impact on Mr. Park, Mr. Park’s comments to Cpl. Kee after Cst. Gaiger left the interview room do not demonstrate that Mr. Park saw guilt as an inevitable conclusion. Mr.

Park states at various times: “I’m still taking it to trial.”; “I’m still going to court.”; and, “I’ll let my lawyer have a crack at it and we’ll figure it out.” [ 78 ] In the assessment of the entire evidence, this factor will be further considered. (

c) The evidence presentation [ 79 ] The police in their interviews did not include any false or overstated evidence. With regard to particularly upsetting evidence, Mr. Park asked at the outset of the evidence presentation that it not include any “hospital pictures”, and Cst. Gaiger who conducted the presentation assured him that they would not do that. There was only one composite image of the CT scans of A.’s skull after the injuries. Photographs of A. and her mother prior to A.’s injuries were included. Most of the slides presented were typewritten statements or witness summaries. [ 80 ] Mr.

Park was engaged throughout the evidence presentation and asked intelligent questions. However, it clearly had an emotional impact on Mr. Park. Cpl. Kee fairly described the experience as a “traumatic thing to have to relive it in the interview room”. It also led Mr. Park to a plan to work with his lawyer on the timeline presented by the police to disprove the theory. [ 81 ] As discussed above, the law regarding voluntariness of statements as set out in Singh and Camille permits evidence presentations. This evidence presentation was conducted in a manner respectful of Mr.

Park’s vulnerabilities and also in accordance with

the principles set out in those cases. (

d) Not allowing Mr. Park to leave the interview room [ 82 ] The defence accepts that the police were under no obligation to allow Mr. Park to leave the interview room when he attempted to do so. However, the defence says the fact that he was trying to leave but was forced to stay is relevant in assessing the voluntariness of his statements. [ 83 ] The attempt to leave occurs after the evidence presentation and before the conversation with Cpl. Fortin, the interview team leader. Mr. Park says to Cpl. Kee that he is “gonna go”, and is told that he “unfortunately [doesn’t] get to choose where you go anymore.” Mr.

Park stood up, and then Cpl. Fortin entered the room and asked for a moment alone with Mr. Park. Mr. Park also asked Cpl. Fortin if he can leave. When told he could not, he appeared both times to be accepting of the negative response. [ 84 ] I take this into account in assessing the entirety of the evidence. (

e) Mr. Park requesting to speak to his lawyer [ 85 ] Mr. Park was provided access to counsel on October 28 shortly after his arrival at Burnaby Cells, and at 11:10 a.m. on October 29 prior to his JJP hearing. He was not provided additional access to counsel at 5:59 p.m. or 6:03 p.m. when he requested access to his lawyer after the evidence presentation and in the garage. [ 86 ] After the evidence presentation Cpl. Fortin entered the room. The defence submits that Mr.

Park was clearly overwhelmed at the end of the evidence presentation and he asked to call his lawyer saying: “… you guys like painted this picture that’s so dominant, feels like I can’t crawl back from it mmm but I gotta try.” In response, Cpl. Fortin continued the conversation and said to Mr. Park that he knows that Mr. Park is going to take this to court and that he is a good person. It is at the end of this dialogue that Mr. Park shakes hands and expresses his appreciation for the officers “being good”. [ 87 ] Mr. Park again requested to speak to counsel shortly after he entered the garage with Cpl.

Kee, first indicating he could “call him tomorrow”, and shortly after stating: “Maybe I could call him right now?” Cpl. Kee assured Mr. Park that he could speak with his lawyer before court on Monday. [ 88 ] While the defence submits the police were not required to permit Mr. Park to speak to his counsel at either of these times, his desire to do so is relevant to the voluntariness inquiry. [ 89 ] This factor on its own is not oppressive. In the first instance in the interview room Mr. Park continues the conversation with Cpl. Fortin, clearly calmer and not overwhelmed by the evidence presentation.

On the second request, Mr. Park appears to be satisfied by the assurance that he can speak with his lawyer before court on Monday. I therefore take this point to be included in the analysis of the overall circumstances. (

f) Cpl. Fortin suggesting Mr. Park had made an admission [ 90 ] In the conversation with Cpl. Fortin, he continued and said to Mr. Park: “I don’t think for a minute you woke up that morning planning to do this, did you?” Mr. Park replied that he would never plan that and Cpl. Fortin said: “I one hundred percent believe you”. Shortly after, Cpl. Fortin said: “so do I have your commitment that this isn’t something you’re gonna do again?” [ 91 ] The defence submits Cpl. Fortin implied that Mr. Park had admitted causing A.’s injuries but that he had not done so intentionally.

They also submit that prior to that point Mr. Park had made no such admission. The defence says this had the effect of breaking Mr. Park’s will. The defence further says that by the time Mr. Park was in the garage with Cpl. Kee, his will was overborne because the police had conveyed to him that he was likely to be convicted and there was no point in continuing to deny his involvement in the commission of the offence. This was in conjunction with the trauma of reliving the event, and not knowing when the interview would be finished. [ 92 ] Cpl. Fortin’s statement does not amount to police trickery. Mr.

Park immediately rebutted the erroneous suggestion by correcting Cpl. Fortin and stating that he “never said he did it.” That Mr. Park was able to self-advocate and continue the interview as prior to Cpl. Fortin’s statement are indicia that his will was not overborne by Cpl. Fortin. [ 93 ] Again, although this factor does not amount to oppression, I will consider it in the totality of the evidence. (

g) The length of the interview [ 94 ] The First Statement on Friday, October 28 was 2 hours and 24 minutes from 7:33 to 9:57 p.m. The Second Statement on October 29 was 5 hours and 9 minutes from 1:11 to 6:20 p.m. During both Statements Mr. Park was provided with food, and during the Second Statement he was also provided bathroom and cigarette breaks, with Cst. Lee and then Cpl. Kee, and left alone at times in the interview room. [ 95 ] The Second Statement progressed in segments with Cpl. Kee as the lead interviewer, Cst. Derusha being briefly present, Cpl.

Gaiger attending for the evidence presentation, and then with Cpl. Fortin. This also provided pauses in the process. [ 96 ] With the breaks for food, the bathroom and cigarettes, the length of the interview on Saturday was not on its own oppressive. Further, Cpl. Kee testified that throughout the interview he was monitoring Mr. Park’s condition as he was aware that Mr. Park had earlier seen flies in his cell, experienced a tacky floor, and observed the cement slabs moving. There were no significant visible or verbal signs or statements of fatigue other than occasional yawns. Mr.

Park remained verbally and in body language engaged and articulate

throughout, including making humorous comments about the food, and wordplay such as “population”, as well as refusing to answer certain questions indicating he was well aware of his rights and circumstances. [ 97 ] At about 3:56 Mr. Park after telling Cpl. Kee to “stop it with this”, said: “But honestly I know you have to do it. And I’m letting you do it, I don’t have to be here.” He then continued to respond to Cpl. Kee’s questions saying that he understood. [ 98 ] Mr. Park’s comment towards the end of the Second Statement further indicates he was not feeling oppressed by the length or conduct of the interviews.

He says that the police had treated him well. At approximately 5:48 p.m., Park said to Cpl. Fortin, who was the interview team leader: PARK I appreciate you guys being good. Cpl. FORTIN Hey fff- PARK You’re awesome. Mr. Park also comments that this may be tactical, thus also indicating that he is aware of the process. 3. Withdrawal and hallucinations [ 99 ] The defence submits the fact that Mr. Park experienced two incidents of hallucinations on Saturday, October 29 contributes to his vulnerability in the Second Statement. That Mr.

Park observed flies in his cell and a tacky floor in the morning, and the cement slab in his cell moving around 12:30 p.m., is not in dispute. The hallucinations of flies and tackiness are recorded in the Prisoner Log as reported by Mr. Park to the guard at 9:45 a.m. [ 100 ] It is necessary to place those hallucinations in the context of the withdrawal from alcohol that Mr. Park was experiencing on October 29 as an alcoholic who had then been without alcohol since 2:00 a.m. the previous day. [ 101 ] The Admissions cover much of the 29 hours that Mr.

Park was in the Burnaby Cells, and particularly the time after the conclusion of the First Statement on October 28 at 9:55 p.m. to Mr. Park in his cell at 9:00 a.m. on October 29 which is the only video that was not played in the voir dire. From the Admissions, the video observed during the time from booking-in at 4:30 p.m. Friday to 6:40 p.m. the next day (with the exception of overnight), and the testimony of the witnesses, there are some isolated instances where the behaviour of Mr.

Park can be characterised as odd. [ 102 ] The first of those instances of odd behaviour occurs between 9:13 and 10:00 a.m. on Saturday morning. For one to two minutes Mr. Park stood on the bed in the cell and swiped at the ceiling with the book. He told the cell guard and later Cpl. Kee that there were flies on the ceiling and that the floor was sticky or tacky. From 10:21 a.m. to 12:37 p.m. he appeared to be resting comfortably on his bed. Commencing at 12:37 p.m. for about 23 minutes he walked around looking at various things in the cell. He told Cpl. Kee that the cement slab in the cell was moving.

During a smoke break in the Second Statement he asked Cst. Lee if the slab fell. [ 103 ] Cpl. Kee confirmed in his testimony that when Guard Motak advised him on Saturday morning that Mr. Park was complaining about flies in his cell, this was the first report regarding Mr. Park experiencing hallucinations. Cpl. Kee testified that when he spoke to Mr. Park about the flies, they were discussing it in the past tense, that Mr. Park reported he had been in and out of sleep, and that Mr. Park made it sound like “not a big deal”. Mr.

Park last referred to the cement slab at about 3:00 p.m.; his earlier concern had passed. [ 104 ] Although Mr. Park had the two hallucinations, throughout Saturday, the Second Statement and all of the interactions with officers in the JJP hearing and smoke break the evidence demonstrates that Mr. Park was oriented as to time and place until after 6:20 p.m. He clearly understood the intended process for his bail hearing to take place in the future — the next Thursday after an initial court appearance on Monday.

He understood his right to silence and stated a number of times that he would not answer a question posed. He made humorous comments and a clever wordplay in his statement with Cpl. Kee. His reactions were appropriate in the stressful circumstances. There is no evidence that Mr. Park felt compelled to speak as a result of the hallucinations. (

a) The Medical Evidence [ 105 ] The medical evidence addressed both Mr. Park’s alcohol withdrawal prior to 6:20 p.m. and Mr. Park’s state after 6:35 p.m. on Saturday. The evidence of Dr. Wood was of assistance in understanding Mr. Park’s behaviour on Saturday as he was hallucinating but also oriented and aware. I will first summarise Dr. Wood’s evidence and then discuss his opinion in the context of the video observations of the court and the testimony of the witnesses who observed Mr. Park on Saturday. [ 106 ] Dr. Wood was an expert retained by the Crown to provide an opinion in the voir dire .

He was qualified as a physician, specializing in Addiction and Internal Medicine, to give opinion evidence on the symptoms, diagnosis and treatment of substance use disorders and the physical and mental effects of substance withdrawal. In addition to his testimony, Dr. Wood also prepared a report dated April 10, 2018 in which he provided context on the symptoms and diagnosis of mild and more severe alcohol withdrawal syndrome. [ 107 ] Dr.

Wood testified that of the individuals with alcohol addiction (or “Alcohol Use Disorder”), approximately half will experience some degree of alcohol withdrawal when they cease drinking. Among the individuals who do experience alcohol withdrawal, the majority of them only experience mild symptoms. Dr. Wood explained: Q Is it by definition that you could predict the kind of symptoms? A No.

Q Why not? A About 50 percent of people when they cease high level alcohol use don’t get any withdrawal symptoms at all, and then among -- so, right there half the people at risk would not have withdrawal symptoms. And then of the 50 percent that have symptoms, the majority of those would be mild. So, a little bit of a hand tremor, some anxiety that you might not even attribute to your alcohol use, insomnia classically.

Q So, assuming someone uses heavily as we’ve talked about in this case, 10 to 12 beers a day -- daily, not stopping for some time, a person in that category would be at a high risk to have symptoms, but empirically or statistically speaking 50 percent of those people don’t end up having any symptoms? A Correct. Q And that doesn’t mean -- we’re not talking about him now. These are just empirical correlations? A Correct. Q And out of the remaining 50 percent in that category, only some will have mild symptoms like a tremor, insomnia, some anxiety perhaps? A That’s right.

The majority would only have those mild symptoms. Q Then what’s the percentage of people who have moderate symptoms who are in that high-risk category? A So, the estimates vary widely in the literature, but roughly five to 15 percent of people with alcohol withdrawal will develop severe alcohol withdrawal syndrome if it’s untreated. Q And you’ll probably be able to help us because I’m not good at math. When you say five to 15 percent, is that of that already half of the – A Yes. Q people? A Yes. Q It’s not from a hundred people, it’s from the 50 people left? A That’s right.

Q So, from that 50 people left only five to 15 percent will go on to have moderate or severe symptoms? A That’s right. Q In terms of moderate versus severe and acknowledging that the statistics are what they are and, as you said, the estimates vary, is it broken down into moderate and severe? A It’s not. It’s a clinical diagnosis. So, people refer to mild symptoms and then there’s a syndrome of severe alcohol withdrawal. So, mild symptoms or severe.

And then the definition of severe alcohol withdrawal generally encompasses alcohol withdrawal seizure, delirium tremens, or a constellation of the other symptoms that’s enough to warrant a definition of severe. [ 108 ] Dr. Wood testified that the diagnosis of alcohol withdrawal syndrome is made according to the Diagnostic Statistical Manual of Mental Disorders (DSM) – 5. His report outlined the requirements for this diagnosis: A. Cessation of (or reduction in) alcohol use that has been heavy and prolonged. B.

Two (or more) of the following, developing within several hours to a few days after the cessation of (or reduction in) alcohol use described in criterion A: 1. Autonomic hyperactivity 2. Increased hand tremor 3. Insomnia 4. Nausea or vomiting 5. Transient visual, tactile, or auditory hallucinations or illusions 6. Psychomotor agitation 7. Anxiety 8. Generalized tonic-clonic seizures. C. The signs or symptoms in criterion B cause clinically significant distress or impairment in social, occupational, or other important

areas of functioning. D. The signs or symptoms are not attributable to another medical condition and are not better explained by another mental disorder, including intoxication or withdrawal from another substance. [ 109 ] Dr. Wood testified that these symptoms generally, although not always, progress along an expected continuum and time course.

As he explained: Q Now, looking at your report on page 3 in that paragraph we were just reading from, you write: Further, along this continuum from mild to more severe, alcohol withdrawal symptoms can [be] grouped into a number of defined presentations that generally occur sequentially from mild withdrawal symptoms, alcohol hallucinosis, alcohol withdrawal seizure and delirium tremens (also referred to as “alcohol withdrawal delirium”). In that sentence are you suggesting that these things progress sequentially all the time? A Not all the time. Q As a general rule do they progress sequentially? A Yes.

So, it would be -- you generally wouldn’t see delirium tremens emerging without the other symptoms beforehand and usually all you see is the mild symptoms. Sometimes people get confused about alcohol withdrawal seizure thinking it’s the most extreme thing that can happen after people in delirium tremens, but that’s actually incorrect. It tends to happen in the first 24 hours. So, you get that possible severe manifestation in the first 24 hours and along that continuum delirium tremens is the last to occur. [ 110 ] Dr.

Wood acknowledged that it would be very difficult to differentiate between withdrawal symptoms and anxiety due to the circumstances. However, he opined that Mr. Park would have experienced the discernible milder withdrawal symptoms before he experienced hallucinosis or delirium tremens. [ 111 ] Dr. Wood clarified that, along the continuum of alcohol withdrawal syndrome, as the severity of the symptoms goes up, the likelihood of the symptoms occurring goes down: Q And -- and is there anything more that I should understand about that? A No, I don’t think so.

We used the example of a hundred people that use a lot of alcohol, let’s say 12 beers a day. They all stop because they can’t get alcohol. About 50 percent will just go on about their way with no alcohol withdrawal symptoms, so then you’re left with about 50 and the majority of those symptoms and about -- for 45 of those people probably to 40 -- 40 to 45 would only have a hand tremor, maybe they’re – they’re having a hard time sleeping, maybe a little anxiety. They may not attribute those things to alcohol withdrawal even. They may have some craving, but that would be it.

In the first 24-hour period where those symptoms tend to emerge you may see seizure, which is -- which is very rare, I would say five percent max. You may see hallucinosis, again in that sort of less than five percent range, and then delirium tremens, after -- sort of after 24 hours is when you tend to see that, in that 24 to 72 hour window, and that would be about 10 percent of that 50 percent. So it’s a -- it’s a progression to more severe with the caveat that -- that seizure can happen early, but the likelihood of those things happening goes down over time. [ 112 ] Dr.

Wood explained in direct examination that an additional early presentation of alcohol withdrawal is “alcohol hallucinosis”. He classified this as being a moderate symptom, during which generally people’s senses remain intact. However, Dr. Wood could not comment on the impact of other factors, outside of the withdrawal, that would impact on cognition, orientation or awareness. This was because Dr. Wood did not interview Mr. Park, but rather just reviewed the videos and transcripts.

He acknowledged that having the ability to interview a person would give a better understanding of awareness, cognition, and orientation. [ 113 ] In his report, Dr. Wood described alcohol hallucinosis as generally occurring within the first 24 hours after cessation of alcohol, and referred to intermittent and transient hallucinations that classically involve visual hallucinations, including seeing things move or things that are not there, or auditory hallucinations, including hearing sounds. In his report, Dr. Wood explained that alcohol hallucinosis is typically: (

a) intermittent; (

b) not accompanied by autonomic hyperactivity, such as high blood pressure, high heart rate, high breathing rate, and psychomotor agitation (needing to move around); and (

c) not otherwise accompanied by disorientation or disruption of the senses or cognition. [ 114 ] Regarding what to expect during the alcohol hallucinosis stage, as opposed to the delirium tremens stage which occurs more towards 48 hours since alcohol consumption, Dr. Wood explained that distinguishing features between the two are that the “autonomic activity” (high blood pressure, high heart rate, high breathing rate, agitation) is more pronounced in the delirium tremens stage, and cognition and disorientation are usually intact during hallucinosis. Generally delirium tremens is a state of global disorientation.

He explained further regarding cognition during hallucinosis: Q And so, when you talked about the cognitive functioning and the lack of disorientation and the senses intact, what do you mean? A When somebody is having classic alcohol hallucinosis, they may hear or see things, classically sort of bugs on the ceiling or hear voices and not commanding voices generally. It would be hearing that someone’s talking that isn’t there, but they’re otherwise not disoriented. Q So, the function of seeing something that’s not there, hearing something that’s not there happens, but the other observable indicia

of cognitive functioning suggests the person is okay otherwise? A Everything else generally would be intact classically. [ 115 ] Dr. Wood distinguished alcohol hallucinosis from delirium tremens: Q I guess I’m just wondering how alcohol hallucinosis is not delirium if delirium is potentially having hallucinations.

A So, the distinction is the time when they occur, not that these are hard and fast rules, but epidemiologically hallucinosis happens earlier than delirium tremens and hallucinosis is distinguished from delirium tremens in that it’s hallucinations in isolation, essentially, as opposed to hallucinations as part of a delirium that involves all the things listed here in terms of this inability to maintain focus, awareness of where you are, cognition, so not being able to remember things.

That’s delirium tremens and part of that simple -- complex of all of those things, like global disorientation, can involve hallucinations as opposed to hallucinations essentially in isolation which is hallucinosis. Q Okay. A So, I use the example of some -- Mr. Jones in their hospital bed asking the nurse if there’s somebody in the bathroom asking for help and the nurse saying, “No. Do you know where you are?” “Yes.” “Do you know why you’re here?” “Yes.” Okay, Mr. Jones is fully intact as opposed to Mr.

Jones saying, “I’m hearing something in the bathroom”, and then saying, “Do you know where you are?” “Yeah, you know, I’m on -- I’ve been abducted. I’m on a spaceship and you’re taking me...” “Who am I? You think I’m an alien taking you to do experiments on you?” That’s delirium. [ 116 ] Dr. Wood described delirium tremens as typically rapid onset in his report, and testified: Q Okay.

And at the last paragraph on page 4 you write: Alcohol withdrawal delirium (also known as “delirium tremens”) is typically a rapid onset delirium that occurs last among the symptoms of alcohol withdrawal (if it occurs at all) and can be life threatening. In terms of delirium tremens or alcohol withdrawal delirium which are apparently the same thing, you indicate that it’s rapid onset. What does that mean? A Yeah, so classically it would -- it would occur and, okay, Mr.

Jones is delirious and, you know, you’re getting called to the bedside because of behavioural issues, but alcohol withdrawal exists along a continuum, but delirium tremens as we’ve talked about isn’t -- isn’t frequent. Five to 15 percent of those cases that have severe withdrawal or that have withdrawal will develop it and so it will come on classically, but it is along a continuum where they’re having symptoms and hallucinosis may be part of that.

But once somebody’s delirious they would go from seeing something on the ceiling and being relatively relaxed to, you know, fearful for their life, trying to recruit others to their safety or their help. You know, total loss of thought processes and that’s delirium. You wouldn’t be able to -- you’d transition into a place where you wouldn’t be able to function in that sort of context. [ 117 ] Dr. Wood gave evidence that Mr. Park’s reports on October 29 of seeing flies and a moving slab of concrete suggested to him that Mr. Park was experiencing mild alcohol withdrawal throughout the police statements. Dr.

Wood confirmed that hallucinations of flies is classically described in the literature. Dr. Wood opined that Mr. Park was experiencing intermittent alcohol hallucinosis during the police statements, and a transition to delirium tremens, or severe alcohol withdrawal, after 6:35 p.m. [ 118 ] Dr. Wood stated the following regarding Mr. Park’s hallucinations, and the distinction between having hallucinating but being redirectable, and having paranoid delusions: Q I see. You say at the bottom of page 4 and going on to the top of page 5: As occurred in Mr.

Park’s case, when it occurs, alcohol withdrawal delirium typically occurs [last of all the symptoms of alcohol withdrawal] in approximately 2-3 days after reducing drinking. Mr. Park’s delirium presentation after giving his statement to police is entirely consistent with a diagnosis of delirium tremens. For instance, when Constable Kee comes to his cell at 18:35 on October 29th and Mr. Park states: “These guys. They wanna fuck me up.

I’m goin’ crazy, I can see, I can see cartoons on this fuckin’ roof, and a red dog with teeth, and everything I look at gets a fuckin’ cartoon on it if I focus on it for long enough.” End quote. In terms of the -- you assumed for the purposes of analysis that Mr. Park was hallucinating -- that he was actually hallucinating what he saw on the wall? A Yes. Q If it was just confined to that, if there was no other information, just those words, would you be able to say that that’s symptomatic of delirium tremens? A Symptomatic of? Just the words? If the person believed it, then, yes.

There’s the paranoid delusion that he’s in danger and also the hallucinations. Q But earlier when he expresses about the slab moving and then later in the garage with Constable Lee about getting a book and, “Well, I’ll read it unless the slab crushes me”, isn’t that the same kind of paranoid delusion involving danger? A It’s similar, but he’s redirectable and they just carry on with the conversation whereas in this case from my observation I don’t think they could’ve sat down and conducted an interview. I think he would’ve been too distressed and in delirium and not able to do that.

Q Tell us what it means clinically to be redirectable in the context of alcohol hallucinosis. A So, typically with alcohol hallucinosis you would explain to the person that what they’re seeing isn’t there and that you’d be able to get them to carry on with what other activity you were doing, examining them or interviewing them or having them eat or whatever it is and that they could – they could attend to what you’re asking them to attend to, whereas in the context of alcohol withdrawal delirium people will be too disoriented to be able to do that. Q … And then they go on to have the justice of the peace hearing.

In terms of that exchange, the slab moving, is there any significance or not to -- assuming for the moment it’s alcohol hallucinosis, is there any significance or not to the notion that Mr. Park expressed that it’s dangerous? A To him I think it’s important. He’s volunteering it to others to make it aware and he perceives it to be dangerous. I wouldn’t make more out of it than that. [ 119 ] Dr. Wood then said the following regarding the indicia of withdrawal he observed in the videos of Mr.

Park: A From what -- what I can discern from the transcripts and video is that he has mild withdrawal throughout the day and he has hallucinosis when he’s alone in the cell on a number of occasions starting with when he sees some flies, I think, in the morning and then the slab moving later in the day, and then he has abrupt onset of delirium tremens when he’s back in his cell at the end of the day. Q And if someone is having mild symptoms, including alcohol hallucinosis, can they be functioning in a way that they can interact appropriately with others? A Yes, and that’s by definition hallucinosis.

I wouldn’t call the hallucinosis mild, I’d call it more moderate – Q Okay. A -- but by definition it’s intermittent or transient hallucinations without clouding of cognition. Q All right. And the clouding of cognition you’ve indicated on the bottom of page 5 came after about 6:35 in the evening when he talks to Corporal Kee in his cell; correct? A That’s right. Q And at that point in time would he have been able to function without a clouding of his cognition or senses? A Classically, no. [ 120 ] Dr. Wood was asked whether there is any significance of Mr.

Park expressing what he saw in his hallucinations was dangerous. He said the following: Q … And then they go on to have the justice of the peace hearing. In terms of that exchange, the slab moving, is there any significance or not to -- assuming for the moment it’s alcohol hallucinosis, is there any significance or not to the notion that Mr. Park expressed that it’s dangerous? A To him I think it’s important. He’s volunteering it to others to make it aware and he perceives it to be dangerous. I wouldn’t make more out of it than that. Q All right.

Is there any significance to the fact that he goes on and answers questions and functions without any reference to things that aren’t there? A That’s what -- what suggests to me it’s alcohol hallucinosis and that he can get back to the process that he’s in and comply with that and behave in a way that’s not out of the ordinary. [ 121 ] Dr. Wood was of the opinion that Mr. Park went into delirium tremens after 6:20 p.m. His opinion is consistent with the opinions of the physicians who treated Mr. Park at Burnaby General Hospital: Dr. Baxendale, Dr. Gulati, and Dr. Ronsley. [ 122 ] Dr.

Baxendale, the Emergency Room physician, treated Mr. Park on October 29 and 30, 2016, according to the Clinical Institute Withdrawal Assessment for Alcohol (“CIWA”) protocol. Dr. Baxendale testified that he felt Mr. Park was in withdrawal when he was admitted to Burnaby General Hospital on October 29, 2016, with abnormally high heart rate and blood pressure. Dr. Baxendale testified that he administered progressive dosages of drugs, starting with increasing doses of Ativan, then administering an anti-psychotic called Haladol to sedate Mr. Park, and then Propofol which eventually had the effect of sedating Mr.

Park. [ 123 ] Dr. Gulati, a psychiatrist, saw Mr. Park on October 30, 2016 and diagnosed him with “a brief psychotic episode, in the context of alcohol withdrawal.” Dr. Gulati agreed that someone specializing in addiction medicine and the physiology of it would be better suited to speak to the timeline of alcohol withdrawal. Dr. Gulati also testified that the best way to determine the impact of withdrawal on a person’s mental state is by speaking to the person. [ 124 ] Dr. Ronsley is a psychiatrist who saw Mr. Park upon his admission to hospital. Dr.

Ronsley agreed that he would want to consult and work closely with an internal medicine specialist or hospitalist if someone is experiencing alcohol withdrawal, given that: there’s a lot of medical complications of alcohol withdrawal. There are -- patients can develop seizure disorders. They can be in what we call delirium, which is a medical condition. And then they can have complications of those. They can – they can have co-occurring infections. They can have…complications of seizures, aspirations… They can have high blood pressure…

[ 125 ] Dr. Ronsley testified in cross-examination that delirium has a progressive onset, and that delirium does not always present outwardly. In direct he testified as follows when asked to discuss what delirium means: Q All right. Now, you had mentioned infections, aspirations, things that definitely sound like physical kinds of medical problems. You also mentioned in your -- one of your last answers, delirium. What did you mean by that, in the context of alcohol withdrawal? A Right.

So, one of -- in the context of alcohol withdrawal -- delirium is a general term which basically refers to people whose mental state is in a state of confusion, where they can’t attend to any kind of train of thought or any kind of, uh -- of cognitive awareness of -- of inputs that -- that they’re receiving, in general. And that is part the -- there’s a -- delirium in general can be caused by many different things, but one of the things is alcohol withdrawal, and at a certain stage of alcohol withdrawal, it’s severe. It can induce a state of delirium. [ 126 ] On cross-examination, Dr.

Ronsley testified that he would describe delirium as a syndrome, which can be caused by a wide variety of underlying diagnoses. Q And so those are – are three separate things, hallucinations, delusions, and delirium. A They’re three separate things, yes. Q And with respect to hallucinations and delusions, as opposed to delirium, are those considered -- those first two considered medical conditions in the same way that delirium is, or would you consider those more psychiatric conditions? A Those are symptoms. So, delusions and hallucinations are symptoms. They are not diagnoses.

They are not -- they have to be explained in terms of an underlying condition of the patient. So, if there is a medical diagnosis that’s in existence that would account for those symptoms, then it’s a medical diagnosis. If all medical diagnoses have been ruled out by appropriate investigations, then it becomes a psychiatric diagnosis. The symptoms may be – may look very much the same. [ 127 ] Dr. Ronsley also testified that he would be very uncomfortable providing an opinion on a person’s mental state without interviewing the person first.

He also opined that a doctor who was actually involved with the patient at the time would be the most qualified to give an opinion on a person’s mental state. (

b) Findings Regarding Alcohol Withdrawal and Hallucinosis [ 128 ] Dr. Wood opined that before 6:35 p.m. on October 29, Mr. Park was likely experiencing intermittent alcohol hallucinosis, a moderate stage of alcohol withdrawal, which did not yet cloud his cognition. Although Dr. Wood did not treat or meet with Mr. Park prior to preparing his opinion, the Crown submits that Dr. Wood reviewed over 15 hours of audio-video recordings of Mr. Park, accompanying transcripts, and Mr.

Park’s medical records from his admission to Burnaby General Hospital following the incident of self-harm on October 29, 2016. [ 129 ] The defence notes Dr. Wood’s conclusion in this regard is based on the fact that Mr. Park did not say anything in the video indicating there was indicia of withdrawal-related paranoia prior to 6:35 p.m. The defence submits Dr. Wood acknowledged he did not meet with Mr. Park and therefore Dr. Wood was not in a position to ask Mr. Park whether he held any paranoid beliefs prior to 6:35 pm on October 29. [ 130 ] Dr. Wood acknowledged that even though he referred to Mr.

Park’s “normal” interactions while in custody, he had never met or interacted with Park and did not know what his normal behaviour would be. On cross-examination, Dr. Wood qualified this to “normal- appearing”. Dr. Wood also acknowledged his description of Mr. Park as “completely oriented” was also based on “normal-appearing conversation and—and interactions and the absence of questioning where he is and why he is there”. Dr. Wood also testified that his opinions relating to what Mr.

Park was thinking, or on his heart rate were based on assumptions from what he observed in the videos. [ 131 ] I finally note that Dr. Wood has never interacted with anyone in Mr. Park’s circumstances: somebody in custody after having been arrested for homicide. These are circumstances that I must consider when I approach Dr. Wood’s opinions. [ 132 ] I accept the opinion of Dr. Wood that Mr. Park was experiencing alcohol withdrawal on Saturday, October 29, and it progressed from the moderate to the severe stage of withdrawal in the time after the end of the Second Statement on Saturday.

There was no suggestion in the evidence that the process of the Second Statement until 6:20 p.m. had any effect on the progression of withdrawal to the severe stage by 6:35 p.m. The evidence is simply that progression to the severe stage is generally unpredictable, occurs in only 5% of individuals who commence withdrawal, and that this stage is acute onset over a short period of time that can be minutes. I conclude that that was the case here. [ 133 ] Dr. Wood’s written report sets out the diagnostic criteria and describes the symptoms and effects of the various stages of alcohol withdrawal.

As the trier of fact I observed Mr. Park in the lengthy videos taken in the cell and in the interviews. The two hallucinations on Saturday are apparent from his discussions of them, and it is also apparent that he remains alert, oriented and aware throughout that day until 6:20 p.m. His interactions with the persons in authority are appropriate in the circumstances of his arrest and detention. After 6:35 p.m. there is a marked behaviour change when he becomes agitated, confused and distraught. His speech pattern changes in tone and cadence. The report and testimony of Dr.

Wood assisted in understanding the clinical significance of my observations and the testimony of the witnesses who interacted with Mr. Park on Saturday. A medical framework is provided by the opinion within which the legal analysis can be done. [ 134 ] Dr. Wood’s evidence assisted the court in understanding the juxtaposition between Mr. Park’s two hallucinations on Saturday in the period from 9 a.m. to 3 p.m. together with his apparently normal behaviour in every other respect through that time period until 6:35 p.m.

This juxtaposition is explained by the hallucinosis diagnosis. [ 135 ] Prior to 6:35 p.m. on October 29, I find that Mr. Park was experiencing alcohol hallucinosis with intermittent hallucinations.

This is based on the opinion of Dr. Wood regarding the stages of alcohol withdrawal and the evidence of the other medical professionals, as well as my observations of the video and audio recordings. In this moderate stage of alcohol withdrawal, Dr. Wood stated in his report: Typically … individuals would still be completely oriented to their setting and classically have full control over their thought processes and decision making.” As described in R. v. Hosack , the hallucinations that Mr.

Park experienced at times on Saturday, October 29 prior to 6:35 p.m. were essentially “walled off from the bulk of his other cognitive abilities which, as the interviews clearly demonstrate, were not impaired”: para. 90. As described by Dr. Wood, Mr. Park was redirectable. As is conceded, Mr. Park had an operating mind throughout the statements. [ 136 ] By 6:35 p.m. Mr. Park had progressed to the severe stage of alcohol withdrawal, delirium tremens. He was in florid delirium with an altered state of consciousness. 4. Conclusion on Voluntariness [ 137 ] Throughout the Statements on October 28 and 29, 2016, Mr.

Park understood what was being said to him by police; the legal advice he was provided; the consequences of speaking to the police; the circumstances of his arrest; and that he had been charged with the murder of his daughter. He was alert, articulate, coherent, and aware. His cognitive abilities were not affected by anxiety or alcohol withdrawal. [ 138 ] The parties agree that there was an operating mind and no threats or inducements. However, I must consider whether the combination of factors discussed above were oppressive and raise a reasonable doubt that Mr.

Park remained able throughout the Second Statement to freely choose whether to speak or remain silent. [ 139 ] The most significant vulnerability of Mr. Park was that he was an alcoholic undergoing withdrawal from alcohol. On Saturday, October 29 he progressed from mild symptoms through moderate to severe symptoms. The moderate stage was evidenced

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