R. v. STEPHENSON, 2017 MBPC 53

CITATION: R. v. STEPHENSON , 2017 MBPC 53 IN THE PROVINCIAL COURT OF MANITOBA BRANDON CENTRE BETWEEN: Her Majesty the Queen ) Tim Chudy and Allison Pejovic ) for the Crown ) and ) ) ) ) Lisa Labossiere Grant Shane Stephenson ) for the Accused ) ) ) ) Reasons for Decision on ) Voir Dire delivered: ) November 28, 2017 Murray P. Thompson, P.J.

INTRODUCTION [ 1 ] Constable Grant Shane Stephenson (Stephenson) of the Brandon Police Service (BPS) is charged with the following offence: That Grant Shane Stephenson between the 4 th day of July in the year of 2014 and the 13 th day of December in the year of 2014 in the City of Brandon in the Province of Manitoba did wilfully attempt to obstruct the course of justice by failing to investigate and (sic) incident of Assault Cause Bodily Harm contrary to Section 139(2) of the Criminal Code of Canada . [ 2 ] The investigation at issue involves Landon Lockhart (Lockhart), the son of a Brandon City Police Sergeant, who was the suspect in an assault on an employee at Houston’s bar on July 4 th , 2014, (the Houston’s incident) that left the complainant injured. [ 3 ] In order to avoid public perception of conflict of interest, a Judge, who is not from Brandon, is hearing Stephenson’s Provincial Court trial.

As well, Professional Standards Unit (PSU) investigators from the Winnipeg Police Service, an outside police service, were brought in to conduct an investigation of BPS conduct relating to these matters. TIMELINE [ 4 ] Lockhart was a suspect in a complaint of assault causing bodily harm in the Houston’s incident.

There appeared to be no investigation by Stephenson, the assigned investigator, of Lockhart’s involvement in the Houston’s incident until the end of Mediation. [ 5 ] The Roadhouse incident refers an incident that took place at the Roadhouse bar in Brandon, Manitoba on November 22, 2014, where BPS attended and detained Lockhart. [ 6 ] Mediation refers to a meeting in December of 2014 between BPS, Lockhart and Stephenson regarding Lockhart’s complaint that Stephenson used excessive force when detaining him at the Roadhouse incident.

At the end of that meeting after Lockhart agreed not to pursue criminal charges against Stephenson, Stephenson informed Lockhart that he wanted to speak to him to investigate the Houston’s incident.

[ 7 ] The Law Enforcement Review Agency (LERA) complaint is the formal written complaint by Lockhart against Stephenson dated December 16, 2014, just days after Mediation. [ 8 ] On May 12, 2015, Stephenson provided a videotaped statement to PSU Investigators as a suspect in the Roadhouse assault alleged against Lockhart, as they were wrapping up their investigation. [ 9 ] During the interview a number of questions were asked about the Houston’s incident, before Stephenson made the statements that the Crown seeks to have tendered as evidence.

LEGALS ISSUES [ 10 ] In accordance with the required notice provisions, defence counsel filed a Notice of Motion to exclude evidence, the statement of Stephenson made on May 12, 2015. Defence relies on Section 24(2) of the Canadian Charter of Rights and Freedoms for that exclusion. [ 11 ] The trial commenced by way of a voir dire on November 2 and November 10, 2017, in Brandon, Manitoba.

At issue in the voir dire, is the admissibility of the Stephenson’s videotaped interview statement to police officers from PSU. [ 12 ] It is agreed that evidence from the voir dire will not be applied mutatis mutandi to the trial proper, save and except for any statements by Stephenson ruled admissible by the Court. [ 13 ] The Crown concedes that Stephenson was detained when he gave his statement. As a result, his Charter rights to counsel were engaged. [ 14 ] Defence counsel argues the statement Stephenson made to PSU is not voluntary. Defence also alleges breaches of Stephenson’s Charter rights as follows: •

Section 7 (the right to life, liberty and security of person); •

Section 10(a) (the right to be informed promptly for reasons for arrest or detention); and •

Section 10(b) (the right to retain and instruct counsel without delay and to be informed of that right). [ 15 ] I reserved my decision on these issues. These are my reasons for decision. FACTS The LERA Complaint: [ 16 ] Lockhart, son of Sgt. Dallas Lockhart of the BPS, filed a written four-page LERA complaint against Stephenson. The complaint included: i. A request to commence a criminal investigation against Stephenson for assaulting/choking Lockhart when he was detained by BPS on November 22, 2014 at The Roadhouse, in Brandon. (the Roadhouse incident); ii.

Concerns that at the conclusion of a mediation meeting led by BPS to resolve the excessive use of force complaint, wherein Lockhart told BPS he did not want to proceed with an assault complaint, Stephenson promptly advised Lockhart he needed to meet with him about the Houston’s incident that took place four (4) months earlier; iii. A belief that Stephenson was in conflict of interest by investigating Lockhart as a suspect in the Houston’s incident, after Lockhart had made a complaint about being assaulted by Stephenson at the Roadhouse incident; and iv.

A concern that Stephenson’s sudden interest of interviewing Lockhart as a suspect in the Houston’s incident, some four (4) months after the fact, was direct retribution for Lockhart making a complaint of assault against Stephenson at the Roadhouse incident. [ 17 ] The LERA complaint against Stephenson (written by Sgt. Dallas Lockhart of the BPS on behalf of his son), resulted in a

request from BPS Chief of Police that Winnipeg Police Service Professional Standards Unit (PSU) conduct an outside, independent investigation. [ 18 ] Detective Sgt. Gibson (Gibson) and Detective Sgt. Mateychuk (Mateychuk) were seconded to PSU for the purpose of this investigation. Gibson was the lead investigator. [ 19 ] The written LERA complaint was provided to both PSU investigators. Scope and Mandate of the PSU Investigation: [ 20 ] From the outset, the PSU’s investigation was compromised by the lack of a clear mandate.

Was this to be a LERA complaint, a professional standards investigation, a criminal investigation or all three? [ 21 ] If this was to be a criminal investigation, what was the scope of that to be? Did Lockhart only want the complaint of assault pursued against Stephenson for the Roadhouse incident? Alternatively, would it include other criminal acts that might become known, such as obstruction of justice? [ 22 ] Gibson’s evidence on this point was instructive. He did not have agreement or full cooperation with his disclosure contact from BPS as to the scope of PSU’s investigation.

In the transcript below, I am highlighting the most significant portions of the evidence provided. It was clear this was an all-encompassing investigation. Q Officer, now I understand – and I think you indicated this on direct examination - that you were assigned to investigate this particular matter at the request of Brandon Police Chief Ian Grant, is that correct? A That’s correct. Q Okay. And as I understand it then it would be Brandon Police Service requesting the investigation and requesting assistance through the Department of Justice that that’s how it eventually gets to you? Is that correct?

A What goes on up at that scale, Your Honour, I have no idea. I do remember in the file when I got there that I saw an email from Ian Grant who was the Chief of Police at the time here and he was requesting from one of our senior members that we take over the investigation, but who else he spoke with and who else was involved is beyond me. Q Okay – and the reason that I say that is that I’m looking at page 1 of your – is what I understand to be your narrative -- A Right. Q -- because you authored a fairly lengthy narrative, correct? A Yes, I did.

Q Okay - and I’m referring to page 1 where it indicates: “The investigation was assigned to Winnipeg Police at the request of Brandon Police Chief Ian Grant and Manitoba Justice.” A Right. Q Is that fair? A Well that’s what I was told -- Q Okay. A -- through our leaders at PSU so that’s what I wrote. Q All right – and, you know, the questions that I’m asking are really about what your understanding was. A Sure. Q Okay. Now the complaint as you’ve indicated originated from Landon Lockhart, however you had indicated that you had since learned that that LERA complaint was authored by Dallas Lockhart. Correct?

A Correct. Q Okay – but the LERA complaint was signed and presented as coming from Landon Lockhart? A Yes, that is correct. Q Okay – and so now as far as you’re aware in terms of this particular investigation that you were asked to conduct that really starts with this LERA complaint which was authored in and around December 16th, 2014. Is that fair? A Correct.

Q Okay. A Yes. Q Now at that time – so going back now to December of 2014 – and I’ve reviewed the file in its entirety and I gather that IIU -- A Um-hum. Q -- so I think that’s the Independent -- A Investigation Unit. Q -- Investigation Unit -- A Yes. Q -- was not yet up and running. A Correct. Q Okay – and I understand it as well from having some background with LERA complaints that normally and often LERA and LERA investigators will be the ones to investigate complaints that are made under the Law Enforcement Review Act. A Okay.

Q Is that your understanding as well that at that time anytime there was a complaint made under LERA it’s not PSU that investigates it? A Correct. Q All right. A But this isn’t your normal case. Q Pardon? A This isn’t your normal case either. Q No, fair enough, but the Professional Standards Unit as I understand back at that time would take over any type of investigation that is started or alleged against a police officer if it contained a criminal element – a criminal investigation. A LERA? Q If an allegation was made of criminal wrongdoing by a police officer -- A Right.

Q -- at that time that is something that would be under the purview of the Professional Standards Unit because IIU was not up and running yet? A Right. Q Okay. Now it was very clear to you at the outset that the investigation that you were completing was a criminal investigation into the conduct - which may have involved a criminal aspect - of Constable Stephenson?

A Well, Your Honour, I can tell you that when we first got there in January we were given very very limited information - I believe I was given one officer’s notes - I was given a narrative of Karvonen’s notes - and off the top of my head there was one other thing – so to say that I knew right off the top what I was getting into, I did not. Q Well that’s not what I’m suggesting. What I’m suggesting to you is that you weren’t tasked with investigating some sort of infraction of the Law Enforcement Review – we’ll just call it LERA. A Okay. Q For example, was an officer discourteous and did he swear?

That wasn’t the mandate of your investigation. You were investigating whether: Number 1 – and I’ll get to the other aspects – but whether Constable Stephenson assaulted Landon Lockhart. A That’s one of the things, yes. Q Right? A Yes. Q And that would be a criminal investigation -- A Right.

Q -- that you’re investigating whether criminal activity took place. A Right. Q That’s fair? A Sure. Q Okay. Now you had indicated – in just reviewing your notes and your narrative – that you were provided several documents when you took over this investigation. Correct? A Yes. Q And one of those things, of course, was the LERA complaint itself -- A Sure. Q -- the four-page document we keep talking about. A Yes. Q Right? A Yes. Q Okay.

Now also you had indicated in your notes and your narrative that there were some emails as well and the names of the emails that you listed were a Rich Loewen (phonetic) and there was another individual as well – a Dave Thorn (phonetic)? A Um-hum. Q Okay. Now those are players, as I understand it, through the Winnipeg Police Service. Is that correct? A Yes. Yes. Q Okay. Now were you aware that Inspector Loewen – and I understand him to be an inspector of the Professional Standards Unit at that time? A Yes, he was. Q And, pardon me, but inspector – would that mean like the head or the top -- A Yes.

Q -- of the rank? A Yes. Q Of that particular Unit? A Yes. Q Okay. Now he had sent a letter to LERA indicating that: “The Professional Standards Unit is in receipt of the investigation and will be conducting a criminal investigation at the request of Brandon Police Service.” A Okay. Q Were you aware that Inspector Loewen had told LERA: “We are providing you a letter of abeyance just so you know we are investigating this criminal investigation at the request of Brandon Police Service.”? A No. Q Okay.

Now – and my friend has gone over this a little bit in his direct examination – I want to talk a little bit about what you did to investigate this criminal allegation of assault – and when speaking about criminal allegation of assault in this context I’m speaking about the Roadhouse incident -- A Sure. Q -- if I can call it that? A Yeah. Q So that would be the incident that occurred in November of 2014?

A Right. Q All right. Now after you received this particular investigation I understand that you – as my friend pointed out – did numerous things to investigate. Is that correct? A Well we tried. Q Okay. You reviewed the narratives and the notes that were provided to you at various times and at various points in the investigation. Correct?

A Your Honour, we attempted on numerous occasions to try to get full disclosure from then Inspector Shane Corley – he dragged his feet and we got bits and pieces months later - so for you to say that I knew exactly what I was going to be investigating come the end of January, I did not. We did not receive full disclosure until the springtime. Q Okay, but you received full disclosure and had your investigation, as you said to Mr. Chuti (sic) in response, pretty much complete by the time that you interviewed Constable Stephenson in May of 2015? A Almost. Q Okay.

Now you talked about some interviews that you conducted afterwards as a result of information that you learned in terms of the PROS system -- A Yes. Q -- where officers were maybe accessing certain files and that gave you a few other officers to interview essentially? A Correct. Q Okay. Now by the time – and I just want to go up to that point – May 12th, 2015 – that you had reviewed the narratives and notes that were provided to you with respect to the Roadhouse incident, correct? A Yes. Q You had also, as I understand it – and you’ve already indicated this – made several requests for disclosure -- A Yes.

Q -- that involved pretty much every piece of available evidence that would have been available for the Roadhouse incident, correct? A Yes. Yes. Q For example, you know, the surveillance at the Roadhouse? A Yes. Q That’s something that you requested -- A Yes. Q -- and something that you reviewed? A Yes. Q Whether there was a 9-1-1 call – you requested that – something you reviewed? A Yes. Q Is that right? A Yes. Q You also requested the videotaped statements provided by Landon Lockhart and provided by Tyler Warburton (phonetic) – who was a friend of his – is that correct? A Yes.

Q So essentially you reviewed all the available evidence with respect to that incident? A Yes. Q Okay. Now with respect to that incident – the Roadhouse incident – you also interviewed officers that were involved in the Roadhouse incident -- A Yes.

Q -- like on your own – and when I say that I’m saying that you didn’t view interviews of them that were previously done, you interviewed Brandon Police Service members who were involved in the Roadhouse incident. A Yes. Q Okay. Now you attended to the Roadhouse bar -- A Yes, I did. Q -- and you interviewed again all the players which included Dallas Lockhart as well? A Yes. Q All right. Now throughout the course of this particular investigation you were, as I understand it, consulting with your superiors? A Yes. Q Okay.

And the superiors that you were consulting with would have also included – was it Sergeant Eric Luke (phonetic) – if I’m saying it correctly? A Yes, he was a sergeant then but he’s now an inspector. Q Okay, but at that time -- A Yes. Q -- he was one of the people that -- A Yes. Q Okay . Now I’m going to suggest that prior to May the 12th of 2015 it became quite apparent to you that there were additional investigative issues that needed to be addressed – and I’m talking about investigative issues that were above and beyond whether an assault took place at the Roadhouse incident in November of 2014.

A We had numerous things, Your Honour, that we needed to get answered and it wasn’t just the criminal aspect, it was why are people who are adults and are Brandon Police inside of video rooms - so we had not just the one thing that you’re pointing at, we had various questions and we weren’t getting any cooperation from our disclosure officer. Q Okay. Now one of those issues that was brought to your attention through your investigation was the investigation conducted by Constable Stephenson of the Houston incident in July of 2014, is that correct? A Yes, they allude to it in the four-page letter, yes.

Q Right – and so that was something that was brought to your attention – that particular investigation – really right at the outset? A Right. (transcript Nov. 2, 2017 pp. 46-55) [ 23 ] Gibson also testified: Q Okay. Now as part of the disclosure I received an email that indicates – and again it’s to Danny from Dave Thorn -- A Okay.

Q -- saying: “Although the assault allegation is fairly straightforward there are issues on the periphery that have caused Ian enough concern to request outside assistance.” Now I just want to be clear that you were aware that there were more issues than just the assault – the straight-up assault allegation - in terms of the choke at the Roadhouse incident. A Yes. Q Okay. Now your criminal investigation really involved more than just the choke of Constable Stephenson.

There were other things that you were investigating – things on the periphery that were causing the Chief concern and that were also disclosed to you through the LERA complaint which we just went through. A Yes. Q Is that fair? A Yeah, they wanted it all investigated.

(transcript Nov. 2, 2017 p. 63) [ 24 ] Gibson testified to disagreement with BPS on the scope of the investigation: Q Okay. Now as I understand it also in and around January 20th, 2015 you had a call with Inspector Corley – now Inspector Corley was an inspector at the Brandon Police Service, correct? A Yes. Q And he was assigned as your contact person -- A Yes. Q -- for this investigation? A That’s correct. Q Okay. Now he emailed you – at page 9 of your narrative -- A My narrative.

Q -- and I recognize that you’ve sort of copied and pasted the emails which is very helpful for me and it makes things go a lot faster. A Yes. Q Now at the bottom of page 9 -- A Yes. Q -- he’s essentially – so this is Shane Corley and he’s asking you: “Your request is received.” and this is about the disclosure request A Yes. Q And: “We will put the info together and I will get it to you. If possible would you be able to provide me with a copy of the mandate received from Provincial Law Enforcement Services regarding this investigation?” A Right.

Q So he is asking you what your mandate is in terms of this investigation on that date, is that right? A Yes. He continually challenged me on my grounds, my jurisdiction, why am I investigating this so entirely – this wasn’t the first time. Q Right. Now I’ve reviewed all the correspondence between the two of you and he didn’t understand why it was that you were investigating the Houston’s incident when his belief was that you were supposed to be just investigating the November 2014 choke.

A Yeah, but it was my belief that we should be investigating both because in the LERA he talks about both, he talks about his egregious actions and numerous defaults so in our opinion – Winnipeg Police Service opinion – not just mine – we couldn’t just focus on one small area, we needed to look at this in its entirety. Q Right, because you had concerns – concerns that were pointed out to you in terms of concerns on the periphery – you noted other concerns that you had -- A Right. Q -- about these incidents above and beyond just the chokehold -- A Right. Q -- so you were investigating more than just the chokehold.

A We wanted to know why it took him so long – five months. Q And you replied to Inspector Corley which is consistent with what you’re telling us today that: “There is no official mandate. We are simply tasked with investigating this incident in its entirety.”

A Correct. (transcript Nov. 2, 2017 pp. 67-69) [ 25 ] All of this set the context for the taking of a formal statement from Stephenson. Stephenson’s Statement: [ 26 ] After PSU conducted an investigation into this affair, PSU investigator Gibson sent a letter, dated April 27, 2015, to Stephenson. The letter referenced a complaint of assault against Stephenson made by Lockhart in November 2014 (the Roadhouse incident). The body of the letter indicated this was a criminal investigation of assault “in relation to the Canad Inns Roadhouse, dated November 22 nd , 2014.

Your incident # 2014-1471670.” (emphasis added) [ 27 ] Stephenson was advised in the letter he was to be interviewed on May 12, 2015 at the RCMP Detachment in Brandon.

He was being interviewed as a suspect and would be asked to provide a digitally recorded statement. [ 28 ] The letter advised, “Anything you say may be used in any criminal, civil, or Brandon Police service proceedings that may arise as a result of this investigation.” Stephenson was notified in advance of the interview to allow him an opportunity to contact his police association representative for advice, if he desired. [ 29 ] Stephenson’s interview took place on May 12, 2015.

Gibson expressed surprise that Stephenson did not have an association representative or legal counsel with him for the interview, given that he was a suspect. Stephenson advised he had consulted with counsel and had brought with him a written statement prepared with the assistance of counsel. [ 30 ] Stephenson was again formally warned that he was being interviewed as a suspect in this matter and that he may be charged with assault of Lockhart from November 2014 (the Roadhouse incident). Pages 4-5 of the transcript of that interview: DET. SGT. GIBSON : Okay.

It is our practice to ensure that members understand their status when being interviewed. I remind you that you are being interviewed as a suspect -- SHANE STEPHENSON : Mm-hmm. DET. SGT. GIBSON : -- in this matter. You may be charged with assault of Landon Lockhart from November 2014. [ 31 ] He was given his right to counsel and was asked if he wanted to call duty counsel or any other lawyer.

He advised that he had already consulted with counsel. [ 32 ] Stephenson was warned that he was not bound to say anything but that everything would be recorded and the recording may be used as evidence on any criminal, civil or departmental proceeding. He confirmed that no threats, promises or hopes of reward were offered to himself in relation to providing this statement and he was not influenced by anyone by what to use on the statement. He was asked if he was willing to provide a statement.

He responded that he was, and he provided the written statement he had brought with him to the interview. [ 33 ] To save time, Gibson read the written statement from Stephenson aloud for the benefit of his partner Mateychuk, who was present during the interview. [ 34 ] After quickly assuring Stephenson that his statement was largely consistent with what other witnesses had already told PSU about the Roadhouse incident, Gibson immediately pivoted to a new topic, questioning Stephenson about his lack of investigation into the Houston’s incident. [ 35 ] Starting at p. 10 of the interview transcript: DET. SGT.

GIBSON : Without talking about the Roadhouse at all, here’s some issues here. [ 36 ] Transcript p. 11: DET. SGT. GIBSON : …This first incident happened in July of 2014 - - [ 37 ] Later that same page: DET. SGT. GIBSON : - - at Houston’s’, okay. [ 38 ] Later that same page: DET. SGT. GIBSON : The name Landon Lockhart came out at the time . [ 39 ] Transcript p. 12: DET. SGT. GIBSON : So from what I understand you don’t have any notes. [ 40 ] Later that page:

DET. SGT. GIBSON : Okay. Okay. So are you telling me then at no time did the name Landon Lockhart twig to you that it was a relative or actually the son of one of your bosses? [ 41 ] Transcript p. 13: DET. SGT. GIBSON : Okay. Well, I’ll be honest with you, I listened to that story and I find that little bit far fetched…. [ 42 ] Transcript p. 14: DET. SGT. GIBSON : Okay. I do know from his own mouth that you guys used to be very close. You guys are recruit class members together . [ 43 ] Later that page: DET. SGT.

GIBSON : so for you to go from July until December and not mention a word to Dallas Lockhart about this file you had doesn’t ring true to me whatsoever. [ 44 ] Transcript p. 15: DET. SGT. GIBSON : Okay.

You and I both know that because somebody doesn’t have a photo on your NICHE system or PROS or whatever - -… - - you guys utilize that there are other avenues to use photographs for photo line-ups. [ 45 ] Early on in the interview, Gibson questioned Stephenson about the Houston’s incident, one that is different in time, place and substance from the Roadhouse incident - the incident Gibson specified in all warnings to Stephenson about his legal jeopardy. [ 46 ] The questions are clearly adversarial in nature.

Gibson challenges Stephenson’s answers; finds his story “a little bit far- fetched”; tells him that part of his story did not ring true to him whatsoever; challenges him that “you and I both know…there are other avenues to use photographs for photo line-ups.” Scope of the Pre-Interview investigation: [ 47 ] Mateychuk, who was present at and assisted in posing questions during the interview, testified during the voir dire . He testified he made notes at pages 9 & 10 of his notebook before interviewing Stephenson.

These were pre-interview notes, or points to cover during the interview; a check list so to speak. [ 48 ] It became clear during cross-examination that the focus of Mateychuk’s pre-interview checklist related to the Houston’s incident, not the Roadhouse incident. [ 49 ] Gibson testified during the voir dire that he authored a narrative outlined that identified several issues relating to the Houston’s incident from the outset of his investigation.

They included: • Why did it take Stephenson five (5) months to arrest Lockhart relating to the Houston’s incident? • Did Stephenson have the grounds and intent to arrest and charge Lockhart for the Houston’s incident, the night of the Roadhouse incident? [ 50 ] Gibson agreed on cross-examination that at the outset of the investigation he viewed the Houston’s incident and the Roadhouse incident as tied together. (transcript Nov 2, 2017 p. 65) [ 51 ] Further, he testified that PSU was tasked with investigating this incident in its entirety. (transcript Nov 2, 2017 p. 69) [ 52 ] Gibson also testified he asked questions of other BPS officers concerning whether it was odd to have no notes of an investigation as serious as assault causing bodily harm (the Houston’s incident). [ 53 ] Gibson testified that he interviewed the victim from Houston’s.

Both PSU officers attended to Houston’s to see the scene to determine whether there were other video cameras that might have captured more surveillance video than was sought by BPS. [ 54 ] He testified that it appeared to him there was a lot of investigation that was not done in the Houston’s incident. (transcript Nov 2, 2017 p. 95) [ 55 ] Gibson agreed on cross-examination that he wondered if Stephenson was trying to do Dallas Lockhart a favour by hanging onto the Houston’s file and waiting for months and months hoping it would go away and it would go in the shredder. (transcript Nov 2, 2017 p. 96) [ 56 ] The day before Stephenson was interviewed, Gibson wrote to the chief of BPS to update him on the investigation.

In that update he wrote it was unreasonable that Stephenson did not have any notes from the Houston’s incident and “it is an area that needs to be investigated.” (transcript Nov 2, 2017 p. 98)

[ 57 ] Gibson gave this testimony on cross-examination by Defence: Q You were aware again that he took no notes of that incident – the Houston’s incident. A Yes. Q You were aware that, in your opinion, he didn’t act on the investigation for five months. A Right. Q And it was your opinion that he followed little – he really did little to no investigation of Houston’s – that was your opinion as of May the 11th. A Right. Q Now in your opinion is it a crime for a police officer to purposely hide or throw an investigation in the shredder to protect a fellow police officer? A Yes.

Q That would be criminal activity, would it not? A If I could prove it, yes. [ 58 ] Defence counsel suggested to Gibson that he knew, even before interviewing Stephenson, that there was really no criminal case to be made regarding the assault against Lockhart at the Roadhouse incident. Here is the transcript of that exchange: Q You weren’t interested in investigating and focusing time on the Roadhouse incident because at that point of time you were of the view that Constable Stephenson didn’t assault Landon Lockhart – that there was really not any good evidence whatsoever. Would you agree with me?

A There was so much collusion and so much going on with people lying to us and people not giving us disclosure that it was a schmozzle, to say the least. Q Now up until this point of time on May the 12th, 2015 you are pretty much done your investigation pursuant to what happened at the Roadhouse and would you agree with me that you were of the view that there wouldn’t be a reasonable likelihood of conviction – there wasn’t reasonable grounds that in fact Constable Stephenson did assault Landon Lockhart – and I can certainly go through why that is – would you agree with me? A Say that again - sorry.

Q You knew on May the 12th that that allegation was meritless – the allegation of assault was meritless. A It would be difficult to prove because of the mediation that had already took place – and even the lawyer couldn’t give us an answer on whether that would negate a criminal charge or not. Q Forget about the mediation. What I’m suggesting to you is that on May the 12th prior to interviewing my client you knew that the allegation made by Landon Lockhart that Constable Stephenson assaulted him -- A Um-hum. Q -- was frivolous.

A Well in my opinion I believe that once he agreed to the mediation that Landon Lockhart had very little to stand on but with his dad writing a four-page LERA demanding that this be investigated we did that. Q As of May the 12th you were of the view that there was little to stand on with respect to whether my client in fact assaulted Landon Lockhart – it was a bad case, correct? A This whole thing was bad. Q There was not really any credible evidence whatsoever – and you knew that – by May the 12th -- A We didn’t know -- Q -- about my client assaulting Landon Lockhart. A We didn’t -- Q Would you agree with that?

A We did not know the reality of what really transpired until your client told the truth. Q I am speaking about the assault incident.

A And you’re asking me -- Q About what happened -- A You’re asking me my thoughts on ‘you knew’ – I didn’t know anything – I didn’t know anything for a fact. We were suspicious and would have remained suspicious if your client would have just supplied his letter from Hymie Weinstein and sat there and not said a word when I told him three times: You don’t have to say anything. Do you understand that? Q Would you agree with me – and I’m going to keep asking the question until you answer it. A I have answered it. Q You haven’t. A Yeah, okay.

Q Would you agree with me that as of May the 12th, 2015 – before you interviewed my client – that you knew that the assault allegation made by Landon Lockhart was frivolous? A I don’t make those decisions – I don’t wear a black robe. Q You weren’t concerned about that because -- A All I was doing was -- Q -- you believed it didn’t happen.

A -- compiling all the information like I was told to do and let a judge decide whether there’s criminal intent in any aspect and I did that job. (transcript Nov 2, 2017 pp.125-128) [ 59 ] Gibson also testified that once Stephenson spoke about the Houston’s investigation, during his interview, he did not warn or re- caution Stephenson that he was now in jeopardy for the more serious charge of obstructing justice: Q Okay. Now at this point of time – once those things are said by Constable Stephenson -- A Yes. Q -- you do not Charter and caution him -- A Correct. Q -- with respect to obstruct justice -- A Correct.

Q -- or any similar type of incident. A Because I was told not to. Q Is that correct? A Yes. Q Okay - and you were told not to by your superiors? A Yes. Q Okay, but you knew that he had just made – at least in your mind – an admission of some kind in terms of criminal liability there? A Absolutely. Q Okay. And what your boss had told you overrode your obligations to provide Constable Stephenson with the right to counsel – that overrode that consideration, I’m guessing. A I have never interviewed police in the past and from the get-go that’s what I was told.

Q Did you – and I know the answer – you didn’t pause at that point to go get some direction? A I don’t need direction - I was already told direction. (transcript Nov 2, 2017 p. 132) [ 60 ] The testimony is clear that the Roadhouse assault was “one of the things” Gibson was investigating.

[61] The investigation of the Roadhouse incident was largely complete when he interviewed Stephenson. [62] PSU was investigating numerous things, including how the Roadhouse incident was investigated. [63] The Houston’s incident was part of the LERA complaint. [64] “They wanted it all investigated”, Gibson testified. [65] I am led to the inevitable conclusion that this was a blended interview on criminal investigations relating to both the Houston’sand the Roadhouse incidents.

PSU knew this full well when they entered into taking a statement from Stephenson. [66] I also conclude, based on the evidence provided to me, that the logical inference is that Gibson felt constrained by hissuperiors to charge or caution Stephenson only for the offence of assault from the Roadhouse incident.

He did not believe he had theauthority to provide Stephenson with a Charter caution and right to counsel for any additional offences, before or after any admissionsmade with respect to the Houston’s incident. [67] Gibson conducted a thorough investigation and did the best he felt he could in these circumstances, but his hands werefiguratively tied going into the interview with Stephenson. This fatally compromised the admissibility of Stephenson’s statement at histrial for obstruction of justice by failing to investigate the Houston’s incident. VOLUNTARINESS: [68] R. v. Oickle is the leading case on voluntariness.

The application of the confessions rule is contextual. The trial Judge mustconsider all relevant factors. The onus of proof rests with the Crown to prove voluntariness beyond a reasonable doubt.

The Crown mustshow there were no: • threats or promises; • oppression; • police trickery; and • that the Stephenson had an operating mind. [69] I am satisfied from the Stephenson’s plain answers in the videotaped interview that no threats or promises were made to him toinduce a statement, there was no oppression and he had an operating mind. [70] I observed his demeanor on the video of the interview; Stephenson was relaxed and jovial. Clearly, he was at ease.

He offeredinformation on his own and beyond the questions he was being asked. [71] Police trickery relates more to false and untrue statements by police to elicit incriminating admissions. This was not a trick;rather it was a Charter breach by not informing him of the jeopardy he faced to allow him to make an informed decision to consult withcounsel. [72] The statement is ruled voluntary. For similar reasons defence counsel has not established a breach of Stephenson’s

Section 7Charter rights. CHARTER BREACHES: [73] Defence counsel bears the onus of proof, on a balance of probabilities, to establish any Charter violations. [74]

Section 10 of The Canadian Charter of Rights and Freedoms states as follows: Arrest or detention 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right… [75] I find that defence counsel has met the burden on a balance of probabilities to show that Stephenson’s s.10 (a) & (

b) rights wereviolated from the beginning of his statement to police. [76] The Supreme Court of Canada in R. v. Borden (SCC), 1994 CanLII63 (SCC) stated the following: Once matters reached a point where the officers were investigating two offences, the accused was detained in relation to both of them,and had the right to be informed of this dual investigative intention. The accused's Charter right to be informed of the reasons for his

detention (s. 10(a)) was therefore violated. The rights in s. 10(

a) and (

b) of the Charter are linked. The police must inform a person ofthe reasons for his or her detention so that person may make an informed choice whether to exercise the right to counsel, and if so, toobtain sound advice based on an understanding of the extent of his or her jeopardy. Here, the accused was given no indication that thepolice were investigating any offence other than the one for which he had been arrested.

When the nature of the police investigationsexpanded, the accused should have been reinformed of his right to counsel. [77] Stephenson was never advised that this was a dual-purpose investigation and that the police were investigating him forattempting to obstruct justice.

He did not have a meaningful opportunity to exercise his right to counsel, because he was not promptlyinformed of the reasons for his detention, which included the Houston’s incident and the investigation into whether he obstructed justiceby failing to investigate that matter. [78] His jeopardy changed with respect to the consequences of a charge of attempted obstruction of justice. It is a more seriouscharge.

It is strictly an indictable offence with a maximum penalty of 10 years jail, as opposed to the charge of simple assault, which is ahybrid offence with a maximum sentence of 5 years, where the Crown proceeds by indictment. GRANT ANALYSIS: [79] Section 24(2) of the Charter reads as follows: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [80] The purpose of s. 24(2) is to maintain public confidence in the administration of justice. [81] In R. v.

Grant, 2009 SCC 32 , [2009] 2 SCR 353, the Supreme Court of Canada set out a test for the admission ofevidence obtained under a Charter breach, per s.24(2). There are three factors which must be analyzed: 1. The seriousness of the Charter-infringing state conduct - requires an assessment of whether the admission of the evidence wouldtend to bring the administration of justice into disrepute, and focuses on the severity of the state conduct that led to the Charter breach(which includes an analysis of whether the breach was deliberate or willful, and whether the officers were acting in good faith); 2.

The impact on the Charter-protected interests of the accused - focuses on how the accused person was affected by the stateconduct (which includes an analysis of the intrusiveness into the person's privacy, the direct impact on the right not to be forced to self-incriminate, and the effect on the person's human dignity); and 3.

Society's interest in an adjudication of the case on its merits - focuses on how reliable the evidence is in light of the nature of theCharter breach. [82] In Grant (supra), the Supreme Court set out the following: [72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence wouldbring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for theadministration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits ofthat unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for thecourts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence inand ensure state adherence to the rule of law. [74] State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtainedthrough inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other endof the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negativeeffect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [77] To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right andexamine the degree to which the violation impacted on those interests.

For example, the interests engaged in the case of a statement tothe authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) — all stemming from the principle against self-incrimination: R. v. White, (SCC), [1999] 2 S.C.R. 417, atpara. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the

administration of justice into disrepute.

ANALYSIS [ 83 ] Step one – the breach is serious; it was a deliberate decision by PSU not to inform Stephenson of the jeopardy he faced. [ 84 ] Step two – the impact on Stephenson’s Charter protected rights is severe; he was not afforded the opportunity to consult with legal counsel as he was not informed of the change of jeopardy he faced regarding the Houston’s incident and the more serious charge of attempted obstruction of justice. [ 85 ] Step three – there is indeed a societal interest in an adjudication of the merits of the case and I have no doubt about the reliability of the evidence obtained in breach of the Stephenson’s Charter rights, however this is a severe breach of his rights.

The right to be informed of the reasons for detention and the right to counsel are cornerstones of the Charter protecting against self-incrimination. [ 86 ] Despite the high public interest in a trial on the merits involving an police officer, who is sworn to uphold the law, it is vital to the long term integrity of the justice system that the significance of the Charter breach, one that I find was wilful, not to be condoned by admitting the evidence obtained in its violation. [ 87 ] Defence counsel’s application to exclude evidence is granted.

Stephenson’s entire statement is inadmissible. “ORIGINAL SIGNED BY:” Murray P. Thompson, P.J.