Her Majesty the Queen - v. -, 2014 SKPC 100

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 100 Date: May 16, 2014 Information: Y368808 Location: Carlyle _____________________________________________________________________________ Between: Her Majesty the Queen - and - B.M. Appearing: M. Landry For the Crown C. Davis For the Accused DECISION ON VOIR DIRE K. BAZIN , J [ 1 ] This decision was given orally on April 16, 2014, with reasons to follow. These are those reasons. [ 2 ] A voir dire was held to determine the voluntariness of a video statement provided to the police, by B.M. There are no Charter right breaches being alleged, and no Charter notice was filed by the defence.

[ 3 ] The issue in the analysis of the voluntariness of the statement is the effect of the interviewing officer, Cst. Morse telling B.M., when asked by B.M. if the officer was going to tell everyone what he’s going to say, and the officer telling B.M. that he’s not going to tell anyone. [ 4 ] Constable Drozdiak testified that he had given the Charter rights and caution to B.M. The defence agreed that this is not an issue. [ 5 ] In my discussions with the parties in argument, I raised the issue of whether or not any Charter rights issues arose out of the evidence, particularly relating to the right to silence, which would be under

section 7 of the Charter . Defence counsel confirmed that they were not pursuing a Charter breach application and I understood the defence argument that their position is that the statement provided by B.M. does not meet the voluntariness test as set out in R. v. Oickle , 2000 SCC 38 , [2000] 2 SCR 3 . The defence did focus in argument on the conditions that B.M. was kept and how he was treated.

FACTS [ 6 ] The facts are that B.M. who was a month short of his 20 th birthday, was arrested around 3:00 p.m., taken to the police station, and interviewed later in the evening from 8:38 p.m. to 10:28 p.m. [ 7 ] At the time of arrest, B.M. was advised he was arrested for a sexual assault, stemming from an incident one to one and a half years previously. [ 8 ] B.M. is not fed during his stay at the station, and had been vomiting prior to the interview. B.M. testified that this was due to his nervousness of the situation. [ 9 ] Cst. Morse testified that he took a warned statement from B.M.

The video, and not contested to by the Crown, does not indicate any warning given to B.M. by Cst. Morse. The Crown relies on the earlier warning by the arresting officer, Cst. Drozdiak, approximately five hours earlier, as to advising B.M. that anything he would say may be used as evidence. The Crown relies on the earlier warning as the basis for the video statement being termed a warned statement. [ 10 ] Cst. Morse testified that he did not say anything to B.M. other than what is in the video. [ 11 ] B.M. had never been in jail prior to this incident. [ 12 ] Cst.

Morse introduces himself, but there is nothing said whatsoever that Cst. Morse is going to be taking a statement from B.M. B.M. is not told that the conversation is being video or audio recorded. [ 13 ] B.M. initially talks about denying the alleged offence one or one and half years ago, but then it is Cst. Morse that tells him that it is not that period of time, but that it is four or five years ago the alleged offence is to have taken place. [ 14 ] B.M. denies any wrongdoing throughout the interview, until the end. [ 15 ] About halfway through the interview, Cst.

Morse leaves the room, and as he is leaving, B.M. asked if he was able to use the phone. Constable Morse tells him that he already called his lawyer, “so we are done”. Constable Morse’s understanding is that B.M. was referring to calling a lawyer, and he denies him any further contact with his lawyer.

[16] B.M. asked if he was allowed to leave “earlier/later”, and Cst. Morse replies that they have lots to do before then. [17] Near the very end of the interview, B.M. says to Constable Morse “I guess if I told you, you’re going to tell everyone”. Cst.Morse replies “I am not going to tell anyone”. [18] After this statement, B.M. talks about an incident with the complainant which I infer he is talking about something occurringfour to five years previously. [19] Cst. Morse testified that “technically” he did not tell anyone what B.M. told him, but the evidence comes through the video.

On this point I do not believe the officer that he did not tell anyone as to what B.M. told him, as the information is sworn by Cst. Gordonand I infer that he told her about what was said in the interview. I find that the sole purpose of the interview was to obtain a confessionor evidence from B.M., to be used against him. LAW [20] As argued by both counsel, the area of the voluntariness of the statement is governed by R. v. Oickle.

Set out into the text The Law of Evidence, 6th Edition, Paciocco and Stuesser, page 322, the Oickle rule in broad terms is that “a confession will not be admissibleif it is made under circumstances that raise a reasonable doubt as to voluntariness on the part of the person making the admissions”. [21] Continuing on pages 326 -327: This is a heavy burden that requires the Crown to remove all and any reasonable doubt that the statement was made as a result of factorssuch as improper quid pro quo inducements, oppression, or because the accused’s mind was not operating.

The Crown will also have to show that there was no police trickery or misconduct in securing the statement that would shock the public. These evaluations are to be done in all of the circumstances. In general a Court should strive to understand the circumstancessurrounding the confession and ask if it gives rise to a reasonable doubt as to the confessions voluntariness, taking into account allaspects of the rule. [22] The interplay between the common law right to silence and the Charter,

section 7, are reviewed in R. v. Singh, 2007 SCC 48,[2007] 3 S.C.R. 405. [23] The Court states that the right to silence, although now constitutionally entrenched, long pre-dated the Charter: 31 Therefore, the notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged togive information to the police or to answer questions.

This component of the voluntariness rule is reflected in the usual police cautiongiven to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor indetermining the voluntariness of a statement made by a person under arrest or detention: see Boudreau v. The King, (SCC), [1949] S.C.R. 262; R. v. Fitton, (SCC), [1956] S.C.R. 958; R. v. Esposito, (ONCA), (1985), 24C.C.C. (3d) 88 (Ont. C.A.). A common form of the police caution given to a person who has been charged with an offence is thefollowing: “You are charged with . . .

Do you wish to say anything in answer to the charge? You are not obliged to say anything butwhatever you do say may be given in evidence.” Therefore, the police caution, in plain language, informs the suspect of his right toremain silent. Its importance as a factor on the question of voluntariness was noted by this Court as early as 1949 in Boudreau: The fundamental question is whether a confession of an accused offered in evidence is voluntary.

The mere fact that a warning wasgiven is not necessarily decisive in favour of admissibility but, on the other hand, the absence of a warning should not bind the hands ofthe Court so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon their review theCourt is not satisfied of the voluntary nature of the admission, the statement will be rejected. Accordingly, the presence or absence of awarning will be a factor and, in many cases, an important one. [Emphasis added; p. 267.]

34 As we can see from the foregoing discussion, the right to silence, as a facet of the principle against self-incrimination, was alreadyvery much a part of the common law confessions rule when the Charter came into force in 1982. Any remaining uncertainty as towhether the confessions rule embraced the right to silence was clearly dispelled by this Court in Hebert. The Court recognized that theright to silence formed part of the “basic tenets of our legal system” and hence became constitutionalized under s. 7 (pp. 162-63).

Indefining the scope of the Charter right to silence, McLachlin J. (as she then was) focussed in large part on related rules at common law,including the confessions rule. In reviewing the scope of the common law confessions rule, she explained (at pp. 166-67) that thejurisprudence on confessions revealed two persistent themes. The first related to the exercise of free will in choosing whether to speak topolice or remain silent and the second to ensuring that reception of the impugned statement would not result in unfairness or bring theadministration of justice into disrepute.

She further explained how, in turn, this broader concept of the rule forms part of ourfundamental notion of procedural fairness and how it also reflects the view that the rationale for the confessions rule “goes beyond theexclusion of unreliable statements and extends to considerations of whether reception of the statement will be unfair or tend to bring theadministration of justice into disrepute” (p. 167). The question posed by McLachlin J. following this historical review of the confessionsrule was whether this broader notion of voluntariness “should prevail in the post-Charter era” (p. 173).

She concluded that it should. 39 Further elaboration is required here on the warning that it would be “a mistake to assume one subsumes the other entirely”.

For thereasons I have already expressed, the confessions rule effectively subsumes the constitutional right to silence in circumstances where anobvious person in authority is interrogating a person who is in detention because, in such circumstances, the two tests are functionallyequivalent… [24] In the present case B.M. is not reminded that he has a right to silence, and that he does not have to answer the questions of Cst.Morse. [25] In relation to B.M., he is told by one officer, Cst. Drozdiak, who initially arrested him, about his right to silence. He is thentold by Cst.

Morse, that he would not tell anyone whatever B.M. was going to tell him. This is in direct contrast to what Cst. Drozdiakhad told B.M. about his right to silence and how what he says will be used as evidence. [26] This may be viewed as an inducement to have B.M. tell Cst. Morse something, but more so it is a direct lie to B.M., whichdirectly relates to his common law right to silence. Cst. Morse was specifically talking to B.M. to obtain evidence against him. [27] B.M., who is a young man, and never faced police interrogation before, is told by one officer, Cst.

Drozdiak, that anything hesays may be used as evidence, and a second officer, stating that he would not tell anyone, which I interpreted as telling B.M. that what hetells will not be used as evidence. [28] In R. v. Cook, (SCC), [1998] 2 SCR 597, a Canadian, arrested in the United States, given his Miranda rightsby the US authorities, which is the right to remain silent and that anything you do or say may be used against you in a court of law, islater interviewed by Canadian authorities in the United States. [29] When Mr.

Cook is interviewed by the Canadian detectives, at the onset of the interview, he is not advised of his right tocounsel or told that he was not required to speak to detectives, nor told that what he said is to be used in evidence. [30] Mr. Cook is advised later in the interview, a rambling version of his rights to counsel and police warning, which the Courtheld was too confusing to be meaningful. [31] In paragraph 58, the Court quoting the interview, there is some indication by the detectives that Mr.

Cook could leave and onecould infer that meant that he did not have to answer their questions. [32] In B.M.’s situation, when asked when he could leave, he was told by Cst. Morse that he couldn’t leave at that specific timewhen he was asking to leave, but was told by Cst. Morse they still had lots to do. This is Cst. Morse telling B.M. that he was not free toleave the interview.

[33] In Cook, paragraph 60, the Court states: 60 In the course of their investigations, police have on occasion been required to lie. In many circumstances this may not only havebeen appropriate but also necessary and clearly an acceptable procedure. However for police to lie or mislead individuals with regard totheir Charter rights is fundamentally unfair and demeaning of those Charter rights.

Indeed to countenance it would bring theadministration of justice into disrepute. [34] Although this is not a Charter breach application, I find that where police lie or mislead individuals in relation to afundamental common law right, it is equally fundamentally unfair and demeaning of those fundamental common law rights, being in thiscase the right to silence. [35] A number of cases have looked at the issue of an officer telling an accused that what they tell them is off the record, which issimilar to the present situation. [36] The Ontario Court of Appeal, in R. v.

Ford, (ONCA), interpreted an officer’s response to go ahead, whenasked if the accused could make an “off the record” statement, as an implicit misrepresentation by the police officer, which induced theaccused to waive his right to silence, as set out in paragraph 1: The appellant knew of his right to silence both from discussions with his lawyer and, as evidenced by his earlier refusal to make astatement to the police. He went to the officer and asked if he could make a statement “off the record” and the police officer’s responsewas “go ahead”.

The trial judge found that the officer always intended to use any statement in evidence and also found that the accusedbelieved it would not be used. It may well have been prejudicial to the accused. We therefore conclude that the implicitmisrepresentation by the police officer induced the accused to waive his right to silence and, since the Crown cannot show goodfaith, that the statement should have been excluded. [37] The Court interpreted the statement as an inducement. The Court stated the same should have been excluded. [38] R. v.

Narwal, 2009 BCCA 410, is a British Columbia Court of Appeal decision, wherein the accused said he would speak tothe officer “off the record”. In Narwal, the accused was sophisticated in the criminal justice system. The officer upon entering theinterview room tells the accused about the video and audio recording devices in the room. The accused says he would talk “off therecord” and when asked what that meant to him, he defines what he means by off the record, simply being no video or audio recording.

He knew that there was a chance that what he said would be brought up in the case as he said he would deny anything he tells the officerif he had to testify. [39] Narwal refers to Ford for the trial judge finding that Mr. Ford believed that anything he said would not be used against him. Narwal, para. 34, finds that the accused was not under the impression that what he said could not be used against him: [34] In this case, the trial judge found that Mr.

Narwal, who was sophisticated in dealing with the police, had agreed to speak off therecord because he wanted to influence the investigation while maintaining plausible deniability. She further found that Mr. Narwalmeant what he said in defining an off the record statement as one that is not electronically recorded and that he, therefore, was not underthe impression that anything he said could not be used against him. [40] Narwal holds there is no basis to interfere with the trial judge’s conclusion that the statement was voluntary. [41] In R. v.

Tran, (BCSC), although in obiter, the Court discusses Ford, and noted that in Ford the accusedinitiates the asking to go off the record, and secondly that the trial judge concluded that the police officer had always intended to use anystatements and evidence, and it constituted an implicit misrepresentation by the police officer for the purpose of inducing the accused towaive his right to silence. The judge’s comments are in obiter but are a review of the issues as to whether the police were not deprivingthe accused of an effective choice by reason of “misinformation or the lack of information”.

[42] R. v.

Oliver (No. 2), (ONSC), analyses the situation where people are asking to speak “off the record”,and concludes at paragraph 143-146: That the courts have recognized that the right to silence is a procedural safeguard and that there is: … a duty on the part of the police not to do or say anything which may confuse an accused person about his rights and also gives rise to aduty to re-inform an accused of his right to silence if there is objective evidence that he or she does not understand his right to silenceeven after consulting with counsel. [43] Oliver was dealing with a Charter application, but I find that the comments and principles equally apply to the common lawright to silence. [44] Analysing B.M.’s position, he is not a sophisticated individual with experience with the police.

He is a young man who hasgrown up on a First Nation Community being afraid of the police. He is waiting in his cell for five hours, without any food, upset andvomiting due to his nervousness. [45] He is taken to a small room by Cst.

Morse, not to be advised of why he is going there, nor being advised that he will beinterviewed, under audio and video. [46] He is not allowed to speak to his lawyer a second time when he asked if he could phone anyone, and was told that he was notable to leave until the officer was done whatever he needed to do. [47] At the end of the interview, B.M. asked the officer if he told him something would the officer tell everyone, which the officersaid he was not going to tell anyone. [48] A review of the case law, and voluntariness tests, prior to Oickle, looking at each individual aspect of voluntariness, theevidence does not support on its own that the circumstances of the interrogation were overly oppressive, or that the accused did not havean operating mind. [49] Following the Ontario Court of Appeal in Ford, that the implicit misrepresentation by the police officer, with the finding thatthe officer always intended to use any statement in evidence, which I find is the case of B.M.’s matter, amounts to an inducement forB.M. to waive his right to silence. [50] As such I find that B.M. was induced to waive his right to silence by the officer’s promise not to tell anyone what was said tohim. [51] Secondly following Oliver, I find that B.M.’s question to Cst.

Morse, about him telling other people what he was going to tellhim, was such to alert Cst. Morse that B.M. was confused about his right to silence, as Cst. Morse knew that he would use anything B.M.was going to tell him as evidence, but also he knew that it was being audio and video recorded, which B.M. did not. As such there was aduty on Cst.

Morse to inform or remind B.M. as to his right to silence, and that anything he says may be used as evidence, and that Cst.Morse would tell other people, or may be bound to tell other people, or that other people may see the video and hear the audio. [52] Although Oliver was dealing with a Charter application, I find that the comments and principles outlined in that case equallyapply to the common law right to silence. [53] Lastly, following R. v. Cook, I find that Cst. Morse lied or at best intentionally misled B.M. with regard to his fundamental

[ 53 ] Lastly, following R. v. Cook , I find that Cst. Morse lied or at best intentionally misled B.M. with regard to his fundamental common law right to silence. Again, although Cook is a Charter case, I find a statement by the police to lie or mislead individuals with regard to their Charter rights, equally applies to lying or misleading individuals as to their fundamental common law right to silence. [ 54 ] In conclusion, and looking at the test for voluntariness in Oickle , and considering all the circumstances, I have a reasonable doubt as to the statement’s voluntariness. Accordingly the statement is not admissible. K. Bazin, J