R. v. Larsen, 2012 MBPC 27

CITATION: R. v. Larsen Date: 2012 February 23 Citation No. 2012 MBPC 27 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) R. Lagimodiere, ) for the Crown ) and ) ) ) Daniel Emrys Larsen ) K. Gowenlock, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) February 23, 2012 ) Sandhu P.J. Introduction and Issues [ 1 ] The Crown has made application for admission into evidence of three statements by the accused to police. The defence is opposed to the admission and a voir dire was held to determine the issue of admissibility.

The defence does not contest the admissibility of the first of these statements, recorded on video, but does contest the second statement or series of statements made to police while in the back of a police cruiser car with the statements recorded in a police notebook.

The defence also contests the third or final statement made to police soon thereafter, in continuation of the police notebook recorded statements, which was also recorded on video at a later time on the same day. [ 2 ] The accused is charged with 17 counts of break and entering and theft into either private residences or the outbuildings of private residences during the time frame of July 21 st , 2010 and October 22, 2010, with 14 of the offences occurring between September 18 th and October 22 nd . [ 3 ] He does not contest 3 of these counts, being one count between July 31 and August 3 at 541 Flora Ave., in separate information, and two separate break and enters on 914 Redwood Ave., on October 14 th , and 960 Redwood, on October 11 th , contained in a 16 count second information, to which he confessed in the first videotaped statement. [ 4 ] For reasons of clarity the various statements will be referred to as “video statement 1”, “notebook statements”, and video statement 2”.

All statements were taken on the same date while the accused was under arrest and caution. [ 5 ] The sole issue is the voluntariness of the notebook statement and video statement 2, and in particular the adequacy of the recording of the notebook statements. With regard to the notebook statement and the video statement 2, it is common ground that these statements are the only inculpatory evidence against the accused with regard to the remaining 14 counts and that, if admitted, this

inculpatory evidence is likely to sustain convictions on all 14. The Facts [6] The following is a brief

summary of the facts pertaining to the voir dire. [7] The accused was initially charged on October 19th, 2010 with the separate information relating to the Flora Ave. allegationand was on charge and recognizance, having been previously released days earlier for Court appearance on November 2, 2010. He was out of custody for that matter on October 25th and had yet to make the first court appearance. It was on October 25, 2010 that Mr. Larsenwas taken by Detectives Smith and Holmstrom to a District police station in custody. There is no issue about the arrest, or any Charterissues. [8] On October 25, 2010, Mr.

Larsen under arrest and detention for suspicion of offences of break and enter on Redwood Ave.,arriving at the station in the early afternoon. Questioning commenced at 2:33 p.m., with the first videotaped statement concluded at 3:21.In that first statement he admitted to a total of two offences on Redwood and the one on Flora but denied any further involvements inregards to a number of other break and enter offences that police were investigating as unsolved, open files, and which had all occurredin the vicinity of the admitted offences, all of which were near or in the vicinity of the residence of Mr.

Larsen. [9] After the taking of the first video statement the police and Mr. Larsen embarked upon what is commonly known as a “drive-by” into the neighbourhood where Mr. Larsen then lived and where there had been a recent rash of house and house garage entries andthefts. Before proceeding on the “drive-by although the police had a package of materials with them regarding some of offences that Mr.Larsen purported to confess to they did not have them all, although they were aware generally of some of the others.

After the drive-by ofvarious houses, all subjects of unsolved, open break and enter investigations, the trio returned to the police detachment and the secondvideotaped statement commenced at 6:14 p.m. The drive-by itself took about two hours with the rest of the time devoted by the police topaper work, lunch with Mr. Larsen at a fast food outlet, and to retrieving and compiling open files on other break and enters unsolved inthe immediate vicinity of Mr. Larsen’s confessed crimes up to that time. [10] During the drive-by Mr. Larsen is purported to have confessed verbally to a further 14 offences.

The recording of theseconfessions was via a single police notebook, with police comments and questions being recorded in the handwriting of police as theyconducted the “drive-by”, and the answers of Mr. Larsen were also recorded in handwriting, verbatim according to the police testimony. [11] Certain statements were recorded according to the police, verbatim, in which Mr. Larsen detailed his involvement with thesefurther offences.

Some of these confessions and details confirmed the details of some of the unsolved break and enters, and otherconfessions were provided regarding which the police did not have the paperwork or details, but these were retrieved once back at thepolice station. [12] Once back at the station the second video statement purports to confirm, on video, the confessions that were verbally made andthen recorded in the handwriting of the police officers in the police notebook. The notebook confessions were not signed by Mr. Larsen,nor were they recorded in any other way.

The second video tape statement is therefore accurately describable as a confirmation of thepreviously made confessions recorded in the police notebook. [13] The police testified that Mr. Larsen was co-operative throughout and readily admitted to the further 14 offences during thecourse of the drive-by. They both testified in detail about the drive-by and their going from house to house with Mr. Larsen to confirmthe addresses and to have Mr. Larsen recall all the incidents as best as he could recall. They testified that Mr. Larsen was co-operativethroughout and no inducements or threats were made. [14] Mr.

Larsen testified that the confessions were false and were made after being induced to do so by being given a promise ofrelease by the police (as he subsequently was), even though he had a criminal record for similar offences and was on recent charge andrecognizance for identical offences. As well, he was a confirmed and active illegal drug user at the time, and confessed to doing propertycrime to support his habit. [15] Mr.

Larsen also claims to have been threatened by the police with words to the effect that as he was “under police control, theycould do anything they wanted with him”, words used to exhort a confession. He is an admitted and known crack cocaine drug addictand was heavily involved with his addiction at the time, resorting to crime to get the funds for his habit. Mr. Larsen confirms that, andthis is little disputed, on the day of his arrest and interrogation he was still somewhat under the influence and coming down from a recentdrug “high”.

The visual evidence on the videos would seem to support his claim to a degree, and the evidence of the police does notcompletely contradict the possibility of this. [16] It has already been noted that the confessions of the 14 crimes of break and enter in issue are the only evidence against theaccused and without their admission the Crown prosecution will fail. The Law [17] The general law with respect to criminal confessions and admissions being admissible as evidence in a criminal trial is wellknown. [18] In R. v. Oickle, 2000 SCC 38 , [2000] S.C.J.

No. 38, at paragraphs 68 and 71, Iacobucci J. states as follows: [68] If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough toproduce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducementscan operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in makingthis decision. [71] Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one.

[19] The Crown must establish beyond a reasonable doubt that the statement was made voluntarily, i.e., that the defendant exercisedfreely the right to choose whether or not he wished to speak to the police. It is trite to say that the circumstances surrounding the makingof a statement by an accused must be considered in determining whether it was voluntarily given. The relevant factors to be consideredare: a. Threats or fear of prejudice; b. Promises or inducements, creating a hope of advantage; c. Oppression, which can be created by deprivation of food, clothing, medical attention, water and/or sleep; d.

Police trickery which is so appalling as to shock the community. [20] In addition it is vital that the purported confession be recorded in a reliable manner, giving rise to and amounting to an assuranceto the Court that the confessions’ overall reliability as proof of the truth of its contents is reliable and accurately recorded.

Analysis [21] I am able to resolve this matter without a need to determine the credibility issue between the police and the accused whichinevitably arises where the recording is not an audio or video recording and there is now viva voce conflicting evidence from an accused.This concern arises in this matter as the recording of 14 of 17 total confessions of separate crimes was initially made without an audio orvideo recording, and was recorded utilizing a notebook.

The notebook recording containing these confessions was not signed by theaccused, or apparently was he asked to do so during the “drive-by”. [22] In the absence of any other corroborating evidence the Court is faced with conflicting evidence that is usually otherwiseresolvable only on an assessment of credibility as between the testimony in court of the police and the testimony of the accused.

Theprimary objection to admissibility, though not the only objection to admissibility, is a claim by the defence of an inadequate recording ofthe confessions recorded in police notebooks, confessions subsequently said to have been recorded and confirmed in video statement 2. [23] In R. v. Oickle (supra), Iacobucci, J. commented on the desirability of videotaped records of police interrogations. He referredto W. S. White, "False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions" (1997), 32 Harv. C.R.-C.L.

L.Rev. 105; “false confessions and the constitution: safeguards against untrustworthy confessions” (1997), 32 HARV.CR-CLL REV 105 at153-54, and quoted four reasons why video recording is important: First, it provides a means by which courts can monitor interrogation practices and thereby enforce the other safeguards. Second, it detersthe police from employing interrogation methods likely to lead to untrustworthy confessions. Third, it enables courts to make moreinformed judgments about whether interrogation practices were likely to lead to an untrustworthy confession.

Finally, mandating thissafeguard accords with sound public policy because the safeguard will have additional salutary effects besides reducing untrustworthyconfessions, including more net benefits for law enforcement. [24] Iacobbuci, J. then stated: This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when arecording is made, it can greatly assist the trier of fact in assessing the confession. [25] The issue of the recording of statements was also considered in R. v. Moore-McFarlane and Bogel, (ONCA), [2001] O.J.

No. 4646 (C.A.) Charron, JA stated, at paragraphs 64, 65 and 67 (in part): [64] I agree that there is no absolute rule requiring the recording of statements. It is clear from the analysis in both Hodgson (1998) (ON CA), 1 CCC (3rd) 449 and Oickle (2000) 2000 SCC 38 , 147 CCC (3rd) 321 that the inquiry intovoluntariness is contextual in nature and that all relevant circumstances must be considered. Iacobbuci J. says so expressly in Oickle inthe following words (at para. 47, p. 345): The application of the rule will by necessity be contextual.

Hard and fast rules simply cannot account for the variety of circumstancesthat vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over-and under-inclusive. A trialjudge should therefore consider all the relevant factors when reviewing a confession. However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. Thatonus may be readily satisfied by the use of audio, or better still, video recording.

Indeed, it is my view that where the suspect is incustody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thoughtto the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect.

In such cases, it will bea matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has beenprovided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. ... in my view, the completeness, accuracy and reliability of the record have everything to do with the court's inquiry into andscrutiny of the circumstances surrounding the taking of the statement. [26] The leading case in Manitoba on non-video or audio taped confessions is and remains R. v.

Ducharme, 2004 MBCA 29 (Man.C.A.), leave to appeal to SCC refused. [27] At paragraph 42 the Court appears to quote with approval from Moore-McFarlane decision where it states: However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. The onusmay be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody,

recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to themaking a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matterfor the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or videotape record has been providedto satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. [28] The Court went on to consider the case of R. v.

Ahmed (2002), (ON CA), 170 C.C.C. (3d) 27 (Ont.C.A.) andcame to the same conclusion which is essentially that although video or audio taping is preferable, and perhaps even mandatory whereequipment is available, it is not mandatory overall and a failure to transcribe in full or at all by electronic means is not necessarily fatal. [29] The current state of the law in Manitoba therefore is what it appears to have been approved of in para. 47 of the Ducharmedecision, that is that although recording of confessions by electronic means is the best way to resolve issues regarding admissibility it isnot the only way and Oickle is still authoritative on the issue. [30] The fact that these confessions were recorded in a police notebook as they were, though not signed by the accused although theaccused was present and apparently cooperative is, in my view, under these overall circumstances insufficient to meet the high standardof reliable recording required in circumstances where the confession is to such serious offences and given the volume and the seriousnessof the offences confessed to. [31] I am not persuaded by the Crown argument that the second video tape recording affords the Court enough assurance ofreliability that, in essence, the Court should ignore the inadequacy if any of the notebook recordings and accept the second videorecording as admissible evidence that is confirmatory of the notebook recorded confessions.

There are several instants of where theaccused gave some detail as to some of the purported crimes, that is true, which I have reviewed, but, as pointed out by defence counselthese details were available to the police from the crime incident reports, and as testified to the accused, may have been provided to theaccused by the police, or they potentially could have been, outside of a video record. [32] The accused was, as seen in the videos, as being not in particularly good physical or mental condition.

He was apparently just“coming down” from a self-induced cocaine high, which does not seem to be disputed by the Crown, or indeed the police when this wasdiscussed in the video recordings. Throughout the two video interviews the accused appeared shaken and uncomfortable although lucidand able to understand the questions. He had a blanket to warm himself at times. He slept at times. [33] I appreciate that the police have a difficult job to do. Many crimes go unsolved and particularly crimes of property.

Howeverthis does not permit for investigative short cuts and a lack of proper recording where such recording should and could have occurred,resulting in an incomplete record. [34] In the instant case I find the actions of the police in questioning the accused about 14 unsolved break and enters off camera andoff audio a highly undesirable method, though not fatal. The police could just as easily prepared their package of materials regarding theparticulars of these offences and presented that to Mr.

Larsen on video as a continuation of the first video, and then moved from there.This would have afforded the court a much better opportunity of assessing the voluntariness and reliability of the confessions. [35] The unexplained alternative course of action that they took concerns the court in that these confessions are purported to havebeen made with no other evidence of their existence but the notebook recordings and the testimony of the police who produced thoserecordings, which are now contested by the sworn in-court evidence of the accused.

In my opinion an alternative course of recording wasreadily available in terms of the further confessions and was not utilized by the police with no acceptable explanation as to why not. [36] I therefore do find that in assessing the overall circumstances of the purported confessions after the first video statement thatthe Crown has not discharged its burden of proof of voluntariness, as the term is widely defined to include accurate and completerecording, beyond a reasonable doubt. Conclusion [37] For the reasons indicated video statement 1 is admitted into evidence.

The notebook statements and the second subsequentvideo statement are not admitted. FRED SANDHU, P.J.