R. v. T.E.S. Date:, 2015 BCPC 404

Citation: R. v. T.E.S. Date: 20151222 2015 BCPC 0404 File No: 60400-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.E.S. REASONS ON VOLUNTARINESS VOIR DIRE OF THE HONOURABLE JUDGE J.C. CHALLENGER Counsel for the Crown: Lori Ashton Counsel for the Accused: Elizabeth Lewis Place of Hearing: North Vancouver , B.C. Dates of Hearing: December 2 and 3, 2015 Date of Judgment: December 22, 2015

[ 1 ] T.S. is charged with four counts relating to photographs he allegedly took of his female child which are said by the Crown to constitute child pornography. The issue on this voir dire is whether the Crown has proved the voluntariness of a statement given to the police beyond a reasonable doubt. Specifically, the audio recording of the police contact with the accused during his arrest, transport and booking procedure was lost. The Crown is relying on the memory of the arresting officer and his limited notes to establish those circumstances. Evidence [ 2 ] Mr.

S. and his wife, the mother of the child, were arrested at their home at approximately 9:20 a.m. on March 28 th 2014. The female child was apprehended by social workers at the same time. [ 3 ] Sgt. Trousdell testified. He attended at the front door and was present when another officer, Cst. Coleman, spoke to Mr. S. to confirm his identity immediately after Mr. S. opened the door. That was the only contact or communication between any other officer at the home other than Sgt. Trousdell. He confirmed there were a number of officers who attended the home.

The police had obtained a search warrant and those officers were there to execute that warrant after the family had been removed. [ 4 ] Sgt. Trousdell asked the accused to step out of the home. He identified himself as a police officer and asked Mr. S. to accompany him to his police vehicle. On the way to the vehicle Mr. S. was advised informally of the reason for his arrest. [ 5 ] Sgt. Trousdell had been tasked with reading the arrest script to Mr. S., filed as exhibit 1, which set out the charges he was facing, his s. 10 rights, the police caution and a warning that he may be recorded while in police custody.

The script was read to the accused once they reached the vehicle. The responses of the accused to any questions about that information were recorded on the script directly. Mr. S. was then searched, cuffed and placed in the vehicle. [ 6 ] Sgt. Trousdell immediately transported the accused to the detachment. The events at scene took 4 minutes and the trip to the detachment took 11 minutes. Sgt. Trousdell dealt with Mr. S. for a further 25 minutes as he was processed into cells at the detachment. [ 7 ] Sgt. Trousdell said he did not recall any conversation on the way to the detachment. He did recall that Mr.

S. asked questions while he was being booked in. Those questions were about what would happen next. Sgt. Trousdell responded that it would be the investigating officer who would make that decision and someone would come to get Mr. S. from cells in due course. In cross examination he conceded that he could not recall the details of those questions and answers. [ 8 ] The officer described his entire dealings with Mr. S. as calm and without incident. Mr. S. was entirely cooperative. [ 9 ] Sgt. Trousdell used an audio recorder to capture all of his dealings with Mr. S. from his and Cst.

Coleman’s first contact with him at the front door to when he was placed in cells. Due to these events being recorded, Sgt. Trousdell did not make detailed notes. He said the recording was lost and was unable to say when or how that happened. It simply did not make it on to the master file. He said he did not burn the recording onto a disc himself to ensure the recording would be available. [ 10 ] Mr. S. remained in cells for approximately four hours until he was removed from cells by Cst. Dick at 2:26 p.m. to be interrogated. The entire contact Cst. Dick had with Mr. S. was recorded.

She utilized a hand held audio recorder to capture her dealings with Mr. S. as she removed him from cells and escorted him to an interview room and again when she took him back to cells. The interview itself was video and audio recorded. [ 11 ] The dealings Mr. S. had with Cst. Dick establish that he had been given a blanket and booties while in cells. He had also been given food. He had access to a toilet although he expressed reluctance to use it in the circumstances. He was provided with a bagel sandwich and coffee during the interview.

He was also given some pain medication as he complained of suffering from arthritis. [ 12 ] He was asked if he had been threatened or promised anything by either guards or officers while in cells. He replied that he had asked for his handcuffs to be loosened and that was done. [ 13 ] Mr. S. expressed concern for his child and his wife and was assured they were both doing well. He was emotional and described the events of the day, referring to he and his wife being arrested and his child apprehended as traumatic. Credibility and Reliability of the Officers [ 14 ] There is no evidence of either Sgt.

Trousdell or Cst. Dick having had any dealings with Mr. S. prior to the day of his arrest. Their reasonable and probable grounds had been obtained through other law enforcement sources. There is nothing in their evidence itself that suggests any bias toward Mr. S. I find their evidence to be uncontradicted and I accept it to be true and accurate. [ 15 ] I find Sgt. Trousdell testified to the best of his recollection and I accept that there was no conversation other than questions and answers about the arrest and what would happen after Mr. S. was booked into cells.

I further accept his evidence that the entirety of his dealings with the accused were recorded and that through inadvertence that recording was lost. The fact that the impugned events were recorded informs my finding with respect to the credibility of Sgt. Trousdell. However, I pause to note that the loss of this evidence is a serious failure and ought not to have occurred. [ 16 ] Sgt. Trousdell had continuity over the accused from the time Mr. S. responded to his front door up to the time he was placed in a cell and was able to confirm that no one had contact with him except for Cst. Coleman.

There is no evidence to suggest any contact by any other police officers with the accused while he was waiting to be interrogated other than that which was incidental to attending to his comfort. This is corroborated by the accused himself in his interview.

[17] As noted, the entire interaction with Cst. Dick was recorded. There is no evidence there were any actions or statements by herwhich could be described as threats or inducements. There is no suggestion that the interview was in any way oppressive or coercive. His right to counsel was apparently observed appropriately. The Law [18] The onus is upon the Crown to establish voluntariness of the statement of Mr. S. to the criminal standard of proof beyond areasonable doubt. Mr. S. need only raise a reasonable doubt that the statement was not voluntary. [19] In R. v.

Oickle 2000 SCC 38 the Supreme Court of Canada ruled on the common law limits on police interrogation in thecontext of the Confessions Rule. The Confessions Rule requires that in order to be admissible any statement by an accused to a person inauthority must be shown to have been obtained without fear of prejudice or hope of advantage. It must also be shown that the accusedgave the statement with an operating mind and not as the result of oppression. At paragraphs 33, 46, 47 and 69 to 71 Mr.

JusticeIacobucci said: [3] In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused withoutunduly limiting society’s need to investigate and solve crimes.

Martin J.A. accurately delineated this tension in R. v.Precourt (1976), (ON CA), 18 O.R. (2d) 714 (C.A.), at p. 721: Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mindthat the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of havingcommitted the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminalinvestigation. . . .

On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive andcalculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible. . . . All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of eitherof these objectives. [46] Before turning to how the confessions rule responds to these dangers, I would like to comment briefly on the growing practice ofrecording police interrogations, preferably by videotape. As pointed out by J. J.

Furedy and J. Liss in “Countering Confessions Inducedby the Polygraph: Of Confessionals and Psychological Rubber Hoses” (1986), 29 Crim. L.Q. 91, at p. 104, even if “notes were accurateconcerning the content of what was said . . ., the notes cannot reflect the tone of what was said and any body language that may havebeen employed” (emphasis in original). White, supra, at pp. 153-54, similarly offers four reasons why videotaping 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.

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. 2. The Contemporary Confessions Rule [47] The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is withvoluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. Theapplication of the rule will by necessity be contextual.

Hard and fast rules simply cannot account for the variety of circumstances thatvitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judgeshould therefore consider all the relevant factors when reviewing a confession. [69] The doctrines of oppression and inducements are primarily concerned with reliability.

However, as the operating mind doctrineand Lamer J.’s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception ofvoluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process”: J. Sopinka, S. N. Lederman andA. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule.

Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right tosilence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible. [70] Wigmore perhaps summed up the point best when he said that voluntariness is “shorthand for a complex of values”: Wigmore

on Evidence (Chadbourn rev. 1970), vol. 3, § 826, at p. 351. I also agree with Warren C.J. of the United States Supreme Court, whomade a similar point in Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207: [N]either the likelihood that the confession is untrue nor the preservation of the individual’s freedom of will is the sole interest at stake.

As we said just last Term, “The abhorrence of society to the use of involuntary confessions . . . also turns on the deep-rooted feeling thatthe police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methodsused to convict those thought to be criminals as from the actual criminals themselves.” . . .

Thus a complex of values underlies thestricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role playedby each in any situation varies according to the particular circumstances of the case. See Hebert, supra.

While the “complex of values” relevant to voluntariness in Canada is obviously not identical to that in the UnitedStates, I agree with Warren C.J. that “voluntariness” is a useful term to describe the various rationales underlying the confessions rulethat I have addressed above. [71] Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courtshave excluded confessions made as a result of relatively minor inducements.

At the same time, the law ignored intolerable policeconduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt asto the confession’s voluntariness, taking into account all the aspects of the rule discussed above.

Therefore a relatively minorinducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect isdeprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the otherhand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary.

If a trial courtproperly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only beoverturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”: Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship “Kathy K”, (SCC), [1976] 2 S.C.R. 802,at p. 808) (emphasis in Schwartz). [20] Counsel for Mr.

S. provided the Court with a number of authorities dealing with the Confessions Rule and the adequacy of therecord of contact and conversation between an accused and police officers: R. v. Barreda [1999] B.C.J. No. 2259, R. v. Rajab (ON CJ), [2004] O.J. No. 5795, R. v. Burke 2010 ONSC 6530, R. v. Powers 2015 BCSC 297 and R. v. A.B.J. 2010 BCPC232. [21] In these cases the Court found that the Crown had failed to meet the burden of proof as a result of an inadequate record.

Each ofthese cases, respectively, deals with different circumstances including: the failure to produce an officer who conversed with an accused;conflicts in the evidence of officers as to who spoke, who said what and when and who was present when the accused was spoken to;failure to adequately record an interrogation giving rise to doubts about the completeness or the accuracy of the statement; a failure torecall whether a statement was spontaneous or the result of questioning in conjunction with a failure to record the statement andcircumstances as they unfolded; a failure to adequately record ongoing inducements to an accused to persuade them to give evidenceagainst a co-perpetrator. [22] Each of these cases also dealt with the interrogation of an accused as opposed to more passive dealings such as arrest, transport,and booking where any contact and conversation was incidental only to those events. [23] Counsel for the Crown provided R. v.

Narwal 2009 BCCA 410, R. v. Ducharme 2004 MBCA 29 and R. v. Donard 2015 SKCA83. I have also reviewed R. v. Dyer 1979 ABCA 342 , [1979] A.J. No. 750. [24] In Narwal the accused asked to speak to the officers “off the record”. The record of that conversation consisted of notes madeafter the fact. The Court of Appeal upheld the decision of the trial judge to admit the statement having found the record was adequate tomake the determination of voluntariness. [25] In Donard the court said: [35] Mr. Donard argues because Cpl. Durocher (who transported Mr.

Donard to the Prince Albert RCMP detachment) was not calledin the voir dire to testify about threats or inducements, it was unclear that Mr.

Donard’s statement was voluntary. [36] The applicable law was stated by Culliton C.J.S. in R v Settee (1974), (SK CA), 22 CCC (2d) 193 [Settee] at pp206-207: … I agree the law appears to be that where a statement is elicited from an accused in the presence of several officers, the statementought, as a rule, not to be admitted unless (in the absence of some adequate explanation of their absence), those who were present areproduced by the Crown as witnesses, at least for cross-examination on behalf of the accused: R. v.

Thiffault (1993), (SCC), 60 C.C.C. 97,[1933] S.C.R. 509, [1933] 3 D.L.R. 591, and particularly Duff C.J.C., at p. 103. In this case, however, there is not any evidence whatever that any police officer other than those called on the voir dire were in any way

involved in the taking of the statements. Learned counsel contended that the police officers who escorted the appellant from the cell to the various interrogation rooms should have been called. I cannot give effect to this submission. Nowhere in the record is there a tittle of evidence that such escorting officers did any more than deliver the appellant to the interrogation room. They neither took

part in obtaining the statements, nor were any of them present when any of the statements were made. [37] It is not an absolute rule that every person in authority, irrespective of the degree of contact with an accused, need be called in a voir dire . Each case turns on its own facts. Based on Settee , the Crown need only call those who are present or involved in the statement. [38] This case is similar to Settee . In this case, the only person involved in the taking of the final statement was Cpl. Tonge. There is no evidence that Cpl. Durocher did anything other than escort Mr.

Donard to the RCMP detachment to facilitate his right to counsel. [ 26 ] According to the authorities, there is no requirement that all contact between an accused and police officers be recorded in order to allow for the Crown to prove voluntariness. There is no question that it is preferable that all contact be recorded to allow the Court to properly assess all the circumstances. Similarly, there is no requirement that the Crown must lead direct evidence of every moment of an accused’s time in the presence of a police officer or while in police custody.

What is required for the Crown to establish voluntariness beyond a reasonable doubt is a sufficiently complete record of the circumstances of an accused’s contact and conversations with the police to allow the court to fully assess the context of voluntariness as set out in Oickle . Analysis [ 27 ] The impugned events in issue with respect to the issue of the voluntariness did not involve any interrogation by the officers. Rather, the events for which there is no recording are those relating only to arrest, transport, the booking process and the time Mr.

S. waited in cells prior to his interview. [ 28 ] There was no intentional failure to record the questioning of Mr. S. The evidence is that the contact was recorded but lost and in any event the contact did not include any element of interrogation or evidence gathering. [ 29 ] Although the accused was emotional and at time tearful during the interview with Cst. Dick, he was at all times rational and responsive. I find there is no evidence to support a finding that he did not fully understand he could choose whether or not to speak to Cst.

Dick or that he did not have a fully operating mind during the entire course of the interview. [ 30 ] I find that there is sufficient evidence of the contact and conversation between Sgt. Trousdell, Cst. Dick, and any other officers, and Mr. S. to allow me to fully assess the context of the voluntariness of the statement given to Cst. Dick. I find there is no evidence to suggest any conduct by a person in authority which offended the Confessions Rule. [ 31 ] Having considered all of the circumstances I find the Crown has proved the statement of Mr. S. to Cst.

Dick to be voluntary and admissible. ___________________________ The Honourable J.C. Challenger Provincial Court Judge