R. v. C.A.P.K., 2021 BCPC 335

Citation: R. v. C.A.P.K. 2021 BCPC 335 Date: 20210917 File No: [Redacted for Publication] Registry: [Redacted for Publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.A.P.K. PUBLICATION BAN Pursuant to s. 486.4 of the Criminal Code of Canada RULING ON VOIR DIRE: VOLUNTARINESS OF STATEMENTS TO POLICE OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: B. Goddard Counsel for the Defendant: D. Marion, Q.C. Place of Hearing: [Redacted for Publication] , B.C. Date of Hearing: February 10, April 14, June 24 & 25, 2021 Date of Judgment: September 17, 2021

Introduction and Background: [ 1 ] Mr. C.A.P.K. is charged with the sexual assault of A.J.C. on or about June 22, 2018. [ 2 ] On November 11, 2018, Cpl. Hobbs (then Cst. Hobbs) of the [Redacted for publication] RCMP attended at Mr. C.A.P.K.’s residence to tell him that he was being investigated for a sexual assault allegation arising from events in the early morning hours on June 22, 2018. Mr. C.A.P.K. immediately attended to the RCMP detachment and provided a recorded and warned statement to Cpl. Hobbs. At the conclusion of the interview, Cpl.

Hobbs told him that a polygraph test could be available and he would contact him about this, or any additional questions, in future. [ 3 ] Cpl. Hobbs did follow up and on January 14, 2019, went to Mr. C.A.P.K.’s residence to advise him that another officer, Sgt. Hardy, would like to speak with him the following week and administer a polygraph test. Mr. C.A.P.K. agreed and attended at the [Redacted for publication] RCMP detachment at about 9:00 a.m. on January 16, 2019 and met and was interviewed by Sgt. Hardy who administered a polygraph test.

The entire interview and testing, including two breaks, lasted a little over two and a half hours. [ 4 ] The entire recorded interview was played in court. [ 5 ] After the test, Sgt. Hardy conducted what is called a post-test interview. During this phase, Mr. C.A.P.K. made a number of admissions. Mr. C.A.P.K. asserts that his admissions were not voluntary and seeks a ruling to that effect. The Confession or Admissions: [ 6 ] Mr. C.A.P.K. made the following statements or admissions to Sgt.

Hardy in the interview before the polygraph test: • After they all went to bed, he woke up, went over to her and tried to advance on the complainant; • He was laying beside her cuddling around her butt but not her vagina; • He had an erection; • His penis didn’t touch her anywhere; • She looked up at him, didn’t appear interested, and he went back to bed. [ 7 ] During the post-test interview, he made the following statements: • When he woke up he had bad thoughts and went over (to her) and was cuddling her but when she woke up and looked at him he stopped; • He had an erection and had his arm over her with his penis probably pushed against her leg or back or butt or whatever it was; • He was hoping that she would want to have sex too; • While he was cuddling her he was “playing with her”; • He thinks he inserted one or two fingers into her vagina and was “pretty sure” it was just the tip of his fingers and this lasted “probably” under half a minute. [ 8 ] The Crown bears the onus to establish beyond a reasonable doubt that the admissions, which amount to a confession, are voluntary.

I declared a Voir Dire and heard evidence from Cpl. Hobbs, Sgt. Hardy and Mr. C.A.P.K. The Evidence in the Voir Dire: [ 9 ] On November 11, 2018 Cpl. Hobbs attended Mr. C.A.P.K.’s residence and advised him that he was being investigated for a sex assault allegation, that he didn’t have to say anything but if he did, that information would be given to the judge. He told Mr. C.A.P.K. that he only had the complainant’s side of the story and if Mr. C.A.P.K. came to the detachment he could provide a statement. [ 10 ] Mr. C.A.P.K. told Cpl. Hobbs he would attend and drove himself to the detachment right away.

The interview with Cpl. Hobbs at the detachment on November 11, 2018 was recorded and transcribed. At the detachment Cpl. Hobbs properly warned Mr. C.A.P.K. and repeated that he was being investigated for a sexual assault allegation, that he didn’t have to be there, his presence was voluntary, he was not under arrest, the door was open, he could leave at any time and the interview would be ended. When asked, Mr. C.A.P.K. told Cpl. Hobbs he wasn’t intimidated by the officer’s uniform. Mr. C.A.P.K. was properly warned and advised he could speak with counsel. The interview proceeded. [ 11 ] In the voir dire , Mr.

C.A.P.K. testified that what he told Cpl. Hobbs was truthful. In that interview, Cpl. Hobbs asked Mr. C.A.P.K. what he thought the complainant’s allegations were: Q: What did A.J.C. say happened A: Um well she said that I was trying to have sex with her Q: Okay do you remember that

A: No Q: Did you try to have sex with A.J.C. A: Not that I remember [ 12 ] Later in the interview, Cpl. Hobbs advised Mr. C.A.P.K. that A.J.C. told him that she woke in the morning, could feel her tampon moving around, realized that Mr. C.A.P.K. was lying beside her and his erect penis was against her. Mr. C.A.P.K. was asked what he had to say about that and his response was “Nothing”. Cpl. Hobbs asked Mr. C.A.P.K. if he meant “nothing to say did that happen” his response was “I don’t know”.

He denied that he laid beside A.J.C. while she slept or that he manipulated the tampon inside her vagina. [ 13 ] At the end of the interview, Cpl. Hobbs discussed the polygraph testing. He asked Mr. C.A.P.K. this question: Q:…(if)…they asked you did you try to have sex with A.J.C. what would that instrument say A: No [ 14 ] Mr. C.A.P.K. told Cpl. Hobbs that he had stopped drinking after that night and when asked if it was because of any guilt, the following exchange occurred: Mr. C.A.P.K.: No, just cause she told my girlfriend what she thought what happened Cpl. Hobbs: What did she tell C. Mr.

C.A.P.K. : Pretty much what you told me she just told C. that I was trying to have sex with her and then yeah that’s pretty much what I got from my girlfriend [ 15 ] He told Cpl. Hobbs that he was blacked out that night and that he didn’t know what he did. When Cpl. Hobbs asked at the end of the interview if it could have happened, Mr. C.A.P.K. said “pretty much”. Cpl. Hobbs clarified by asking if it could have happened…or it did happen, Mr. C.A.P.K. answered that he didn’t “know cause I don’t remember the night”. [ 16 ] On January 14, 2019, Cpl. Hobbs met Mr.

C.A.P.K. again at his residence and told him that Sgt. Hardy was interested in speaking with him the next week for a polygraph test, this test was voluntary, he didn’t have to attend, he was still a suspect and anything he said could be used against him. Mr. C.A.P.K. told Cpl. Hobbs he would attend. Arrangements were made for the test to be taken by Sgt. Hardy on January 17, 2019 at the detachment. [ 17 ] Cpl. Hobbs provided a file synopsis to Sgt. Hardy outlining the case. It advised that the complainant had awakened when feeling her tampon moving around, her shorts and underwear were at her ankles and Mr.

C.A.P.K. was laying behind her with an erect penis against her buttocks. This was all the information Sgt. Hardy had when he met with Mr. C.A.P.K. at the detachment, interviewed him and administered the polygraph test. [ 18 ] For the purpose of this v oir dire only, counsel admitted that during the polygraph the following questions were asked of Mr. C.A.P.K.: • Last June 22 did you have sex with A.J.C.; • Last June 22 did you have sexual intercourse with A.J.C.; • Last June 22 did you have intercourse with A.J.C. [ 19 ] For the purpose of the voir dire , it was agreed and admitted that Mr.

C.A.P.K. answered “No” to each question and that Sgt. Hardy’s assessment of the testing result for those questions was that the answers provided by Mr. C.A.P.K. were “deceptive”. Defendant’s Submission: [ 20 ] Mr. C.A.P.K. says that the entire process was a sophisticated plan to have him admit sexual intercourse or admit less serious conduct to explain why there was no intercourse. Mr. C.A.P.K. says that for a number of reasons, the Crown cannot establish, beyond a reasonable doubt, the confession was voluntary. [ 21 ] The first reason is that, according to Mr. C.A.P.K., the second time he spoke with Cpl.

Hobbs, he was told by the officer that the polygraph test couldn’t be used in court but that he would appear more cooperative and essentially suggested that it would be better for him if he took the test. He says this was an improper inducement. [ 22 ] Secondly, he says that Sgt. Hardy made a threat, albeit veiled, to Mr.

C.A.P.K. during the pre-test interview when speaking about different kinds of people: Q. …there’s really kind of three different kind of people that come in for an interview one is a person who walks in and you know what talks and talks and talks and they disclose everything we get along just wonderful… ..the other person is you know what um they are confrontational they’re anti police anti government anti everybody we lock horns.. A. Yeah Q. Things don’t go well

…the third one is usually the person who is just waiting for the right person to talk to the right police officer the right place the righttiming the right feeling…. [emphasis added] [23] Mr. C.A.P.K.’s position is that as a young person with no experience, he could have understood that to mean if he didn’t confess,it wouldn’t be a good situation. He doesn’t go so far as to suggest that this made him believe there would be more serious charges orconsequences if he didn’t confess. [24] Thirdly, and most strenuously, he says that Sgt.

Hardy used trickery to such an extent that the statements (the confession) duringthe post-test interview were not voluntary. Mr. C.A.P.K. says the trickery is the many times that Sgt. Hardy told Mr. C.A.P.K. that thecomplainant believed that Mr. C.A.P.K. had sexual intercourse with her when this was not true. He says this was not the evidence fromthe complainant and is the same as fabricating evidence, and the test questions were based not on the evidence, but on a premise that wasnever suggested by the complainant. [25] Mr. C.A.P.K.’s evidence is that Sgt.

Hardy made him doubt his own memory and felt that if he didn’t say what Sgt. Hardywanted to hear, he would be charged with something worse. Crown’s Position: [26] Crown asserts that I must carefully assess Mr. C.A.P.K.’s credibility which, in his view, is unreliable and not credible.Furthermore, he says there is no evidence to support a finding that there was oppression or police trickery in all the circumstances here orthat Mr. C.A.P.K.’s will was overborne. He says the voluntariness of the statements has been established beyond a reasonable doubt.

The Law: [27] A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. [28] R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 summarizes the confessions rule and its twin goals of protecting the rightsof an accused without unduly limiting society's interest in the investigation and prosecution of crimes.

Iacobucci J., speaking for themajority, adopted the following passage from another decision: 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…. [29] Oickle makes it clear that a judge must consider all relevant factors and should not take a narrow, formulistic approach butshould take a broader contextual approach.

Such context includes the presence or absence of such forms of threats, promises, oroppression which may undermine the voluntary nature of the confession, and of such forms of trickery as may serve to undermine theintegrity of the criminal justice system. [30] Further emphasising the importance of a contextual approach, a trial judge must consider whether or not a particular inducementor promise had an actual impact upon an accused person's decision to speak to a person in authority.

However, the broader approach tothe confessions rule recognizes that “the absence of violence, threats and promises by the authorities does not necessarily mean that theresulting statement is voluntary, if the necessary mental element of deciding between alternatives is absent”: Oickle, para. 25. This is afundamental tenet of the “operating mind” doctrine: Oickle, para. 26. [31] A voluntary statement requires that it be made with an operating mind.

This is not a high threshold and requires that the accusedhas knowledge of what he is saying and that he is saying it to police officers who can use it to his detriment. It is not a separate discreteinquiry but must be considered within the broader context of the particular circumstances. [32] Phrases like “it would be better if you told the truth” do not automatically result in exclusion but must be considered in theoverall context of the confession. [33] As stated in Oickle at para 57: In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Fewsuspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that itis in his or her best interests to confess.

This becomes improper only when the inducements, whether standing alone or in combinationwith other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. [Emphasisadded] [34] And at para 69: However, as the operating mind doctrine and Lamer J.’s concurrence in Rothman, supra, both demonstrate, the confessions rule alsoextends to protect a broader conception of voluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process’: J. Sopinka, S.N. Lederman and A.W.

Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. [Emphasisadded] [35] Oickle recognized different kinds of false confessions including the “non-coerced persuaded confession” in which “police tacticscause the innocent person to become confused, doubt his memory, be temporarily persuaded of his guilt and confess to a crime he did notcommit” [cites omitted]. The use of fabricated evidence can also help convince an innocent suspect of his or her own guilt: Oickle, para

40 . [ 36 ] The court also recognized the need to be sensitive to the individual suspect with particular attention to an individual who is especially vulnerable because of their background, characteristics such as suspects with compliant personalities or those who because of their personalities are more prone to accept and believe police suggestions during the interrogation: Oickle , para. 42 . Discussion: It Would be Better or You Would Look More Cooperative [ 37 ] On cross examination, Cpl. Hobbs denied that when he spoke with Mr.

C.A.P.K. he told him it would be in his best interests to give a statement at the detachment or that he would be perceived as more cooperative or that it would look better in court. He didn’t have detailed notes or any recordings of the first meeting with Mr. C.A.P.K. at his residence. [ 38 ] It is possible that Cpl. Hobbs told Mr. C.A.P.K. that giving a statement or telling the police his side of the story may make him appear cooperative. Those words could imply that by being cooperative it would be better for him in terms of final results in court. It is also possible that different words were used and Mr.

C.A.P.K. of his own accord thought or hoped he would look cooperative which would be better for him. [ 39 ] Police methods to persuade a suspect to confess by saying that it would be in his or her best interests to talk to them, while risky, is only improper when the inducements, standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne: Oickle , para. 57 . [ 40 ] I conclude that even if Cpl. Hobbs told Mr.

C.A.P.K. that he would appear cooperative if he attended the station for the first interview and took the polygraph test, it was not of sufficient magnitude to rise to the level of inducement that suggested or implied a quid pro quo - that he would face less serious charges. I also consider that Mr. C.A.P.K. had two months after his first interview with Cpl. Hobbs to consider what he wanted to do. In my view, he clearly made a voluntary choice to take the polygraph and meet with Sgt. Hardy. Did Sgt. Hardy use threats, police trickery or false evidence to obtain a false confession? [ 41 ] Mr.

C.A.P.K. testified that he was lying when he told Sgt. Hardy that he put his fingers in the complainant’s vagina. His reason for doing so was because he felt that Sgt. Hardy was “trying to charge (him) with rape”. He testified that he was truthful when he told Sgt. Hardy that he had “bad thoughts” about the complainant, had an erection, cuddled her and stopped when she woke up. [ 42 ] He testified that he was being truthful when he told Sgt. Hardy the reason he didn’t tell Cpl. Hobbs about cuddling the complainant was because he was scared.

He also testified that he wasn’t worried about being charged with “rape” before the polygraph test, he knew the interview and test was voluntary, he knew that he could leave at any time, and agreed he left the interview room for a cigarette break before the test and once again after the test. He testified that he returned after the break to hear the test results. [ 43 ] Mr. C.A.P.K. was clearly aware that the police were investigating an alleged sexual assault by him against the complainant.

He was aware that he didn’t have to give a statement, anything he did say could be used in evidence and during both recorded interviews he could leave at any time. Contrary to his evidence, he was aware that A.J.C. alleged that he was trying to have sex with her and he believed that “she was alleging rape” before he gave the polygraph test. [ 44 ] During both interviews, Cpl. Hobbs and Sgt. Hardy were calm, courteous and considerate. They used common investigative techniques to build rapport with Mr. C.A.P.K. to encourage him to talk to them. [ 45 ] Sgt. Hardy’s lengthy pre-test interview was designed to put Mr.

C.A.P.K. at ease and find some common ground with him in the hopes that he would open up about what occurred on the night in question and confess. He talked about there being three kinds of people and for those who are anti-police and confrontational, “things don’t go well”. As Sgt. Hardy was discussing this, indeed through the entire process, his demeanour was calm and considerate of Mr. C.A.P.K. [ 46 ] It can be challenging for judges to assess the impact of subtle or veiled threats.

What is important is a consideration of the overall circumstances and context resulting in the confession and whether the evidence of inducements, oppression or trickery, either alone or combined, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. The fact that a subject may have some self-generated hope that an early admission might lead to lesser consequences is not the focus – rather, it is important to look for the presence of a quid pro quo offer whether a promise or a threat. [ 47 ] I am satisfied that the statement by Sgt.

Hardy that for people who are anti-police or anti-government “things don’t go well” was not a veiled or even subtle threat or that this statement overcame Mr. C.A.P.K.’s free choice about whether to speak to the officer or not. Sgt. Hardy used this technique to suggest to Mr. C.A.P.K. that, in his example, the person who told the truth and confessed was a good person. This is a technique frequently used by the police to facilitate a connection with the subject and gain that person’s confidence and trust, and hopefully, in the end, obtain a confession.

My conclusion is based on all the circumstances and my observation of the recorded interview. [ 48 ] Police use of non-existent evidence can be considered a source of oppression. Mr. C.A.P.K. says that Sgt. Hardy told him they had evidence that did not exist – that the complainant told the police that Mr. C.A.P.K. had sexual intercourse with her. [ 49 ] Cpl. Hobbs was clear in speaking with Mr. C.A.P.K. that the investigation was for sexual assault and that he was facing potentially, serious consequences if proven true in court. [ 50 ] Sgt. Hardy told Mr.

C.A.P.K. twice before the test that the complainant believed Mr. C.A.P.K. had sexual intercourse with her – that he put his penis inside her vagina. Mr. C.A.P.K. was very firm and clear in his denial of this. After the test, Sgt. Hardy told

Mr. C.A.P.K. that he believed Mr. C.A.P.K. did have sex with the complainant and continued his interview by telling him that he put his penis “in there” and that he knew “it did happen” and asked how long his penis was inside her. Mr. C.A.P.K. continued to clearly and firmly deny that his penis was, at any time, inside the complainant. At one point in the questioning, Sgt. Hardy told Mr. C.A.P.K. that “I think we know at some point there your penis was…” (inside her) and Mr. C.A.P.K. answered “if it was then I don’t remember that

part cause all I remember was her waking up and me stopping when she woke up my penis wasn’t in her” but then he later said “…I literally just woke up and then figured it would be a great idea in my drunken stupor but then it just didn’t work out I know I didn’t have my penis in her at any point though….” And later “I would have remembered if I put it in there…” [ 51 ] Eventually, Sgt. Hardy asked Mr. C.A.P.K. if he had been treated good (sic), and the reply was ‘really good I’d say”. Sgt. Hardy suggested he understood the position that Mr. C.A.P.K. found himself in that evening and expressed sympathy.

It was at that point that Mr. C.A.P.K. volunteered the following: Well if anything when the tampon’s moving it probably be a hand cause yeah I don’t really remember much but I know I didn’t have my like wiener in her at all [ 52 ] Sgt. Hardy then began to question Mr. C.A.P.K. about what he had just said. He asked a compound question “…you put something in there right…was it for a long time did you feel the tampon” to which Mr. C.A.P.K. answered “no”. Sgt. Hardy continued to question Mr. C.A.P.K. Mr.

C.A.P.K. answered and frequently used phrases like “I guess” or “I’m pretty sure” and “probably” but ultimately when asked by Sgt. Hardy what he did wrong that night, he replied “feeling her vagina with my hand and…”. He didn’t finish the sentence. Sgt. Hardy asked Mr. C.A.P.K. if anyone else knew about the digital penetration and he replied: “Just me”. [ 53 ] Mr. C.A.P.K. was aware that the complainant was alleging that he “tried to have sex” with her and his own girlfriend told him that. He understood that the allegations were serious and they involved sexual misconduct. [ 54 ] Sgt.

Hardy testified that he understood that the complainant wasn’t sure exactly what had happened because she was sleeping and only awoke when she felt her tampon moving but he believed, based on the circumstances relayed to him, that Mr. C.A.P.K. did place his penis inside her. In addition, I infer that Sgt. Hardy also based his belief on his

interpretation of the polygraph which he believed indicated Mr. C.A.P.K.’s answers were deceptive. Sgt. Hardy’s statements, in my view, do not amount to giving false evidence to Mr. C.A.P.K. or that he based his questions on false evidence. [ 55 ] It is important to view Sgt. Hardy’s interview and questions in context. Mr. C.A.P.K. knew that the complainant was alleging that he tried to have sex with her and told Sgt. Hardy that he understood the complainant was alleging “rape or molestation”. That is an allegation involving intercourse. Cpl. Hobbs asked Mr.

C.A.P.K. a very similar question to the ones asked in the polygraph test during the first interview (did you try to have sex with the complainant). [ 56 ] Mr. C.A.P.K. says this was a trick designed to obtain a confession by suggesting that he did something more serious. During his evidence in the voir dire , Mr. C.A.P.K. continually asserted that he lied to Sgt. Hardy about putting his fingers in the complainant’s vagina because he was afraid he would be charged with something more serious and just told him what he wanted to hear. [ 57 ] Yet, he had no difficulty telling Sgt.

Hardy, on numerous occasions, that he did not, ever, put his penis in the complainant’s vagina. He was very clear and very firm about that throughout the interview. He testified that the only reason he lied to Sgt. Hardy about inserting his finger or fingers was because “he made me feel like he was trying to charge me with rape.” [ 58 ] In cross examination on the voir dire he denied that he was worried about being charged with rape before the polygraph but he was contradicted by the evidence of what he actually told Sgt.

Hardy before the polygraph test and the post-test interview – “she’s trying to either get me for rape or molestation or something like that”. [ 59 ] Mr. C.A.P.K. also testified that he told Cpl. Hobbs the truth but later changed this evidence and testified that he had lied to Cpl. Hobbs when he denied laying beside the complainant while she slept. [ 60 ] This substantially reduces his credibility and causes me to consider his evidence on this point with considerable caution. [ 61 ] Mr. C.A.P.K. presented as a young and very unsophisticated person.

He was interviewed by two experienced police officers who have been trained to conduct interviews with a suspect. However, Mr. C.A.P.K. knew he was facing a serious allegation. I observed the entire interview with Sgt. Hardy and reviewed the transcript carefully. Mr. C.A.P.K. was always afforded an opportunity to leave and he did so, twice, for breaks -- once before the test and then again after the test – and he returned voluntarily to find out the results of the polygraph. The interview took place over two and a half hours and was not, in my view, excessive in length. There was no evidence that Sgt.

Hardy was harsh, aggressive or overbearing nor was Mr. C.A.P.K. deprived of sleep, food, water. I recognize that false confessions can arise from more subtle pressures or inducements and I have also carefully considered this, particularly given Mr. C.A.P.K.’s lack of sophistication. [ 62 ] The strongest argument raised by Mr. C.A.P.K. is that Sgt. Hardy used trickery by asserting something that was not actual evidence – that the complainant told the police she believed that Mr. C.A.P.K. had intercourse with her.

The questions put to him in the polygraph were: did you have sex/sexual intercourse/intercourse with A.J.C.. A very similar question had already been discussed with him in the first interview with Cpl. Hobbs - did you try to have sex with A.J.C.?. In the pre-test interview, when the questions were being formulated, Sgt. Hardy was clear – if Mr. C.A.P.K.’s penis was in the complainant’s vagina, it was sex or sexual intercourse. [ 63 ] During the post-test interview, Sgt. Hardy repeatedly told Mr. C.A.P.K. that the complainant believed that Mr.

C.A.P.K. put his penis in her vagina (and once in the pre-test interview). [ 64 ] Some forms of oppression have the potential to produce false confessions if conditions are difficult enough that the suspect gives a “stress-compliant” confession to escape those conditions or the “non-coerced-persuaded” confession in which the police tactics overcome “the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police and gives an induced confession”: Oickle , para 38, 40 .

[ 65 ] I agree that Cpl. Hobbs’ summation of the complainant’s evidence to Mr. C.A.P.K. on November 11, 2018 did not specifically say that she believed Mr. C.A.P.K. had intercourse with her. Sgt. Hardy told Mr. C.A.P.K. that the complainant believed that Mr. C.A.P.K. put his penis in her vagina. In fact, it was Sgt. Hardy who believed that. However Mr. C.A.P.K. was aware from the outset that he was being investigated for sexual assault and it was serious enough that potentially he could be facing a jail sentence if convicted. Mr.

C.A.P.K. understood that the complainant alleged that he tried to have sex with her and that he was being investigated for “rape or molestation or something like that”. In other words, before the interview and polygraph test, he knew that the investigation related to a serious sexual offence against the complainant. [ 66 ] I find that when Sgt. Hardy told Mr. C.A.P.K., in the post-test interview, he believed that intercourse had occurred, it was based on the circumstances of the offence that were relayed to him by Cpl. Hobbs and his

interpretation of the test results -- that Mr. C.A.P.K. was not telling the truth. This was not a flagrantly deceptive act by the officer to “trick” Mr. C.A.P.K. The technique used by Sgt. Hardy in confronting Mr. C.A.P.K. with the allegation does not amount to police trickery but even if it was, I would conclude it was not so appalling as to shock the community. [ 67 ] Mr. C.A.P.K. testified that he felt stressed throughout the interview and test, as would most subjects. He appeared calm during the entire interview but I recognize that stress is something that isn’t always visible.

Being stressed at the time of a confession is not sufficient to render it involuntary. There must be something more than feeling stressed to raise a reasonable doubt that his will was overborne or a false confession was induced. The only time he used somewhat equivocal language – “probably”, “pretty sure”, “I guess” – occurred when he was asked, repeatedly, about digital penetration, after he made the first such admission. I have carefully considered this in reaching my decision. [ 68 ] In contrast to this language, throughout the post-test interview, Mr.

C.A.P.K. was able to firmly and clearly maintain his denial of sexual intercourse with the complainant and at the end of the interview made his own decision that he didn’t want to write a letter of apology. It was only after Sgt. Hardy discussed Mr. C.A.P.K.’s feelings about being sorry for what happened that evening, that Mr. C.A.P.K. volunteered the admission. Sgt. Hardy had asked nothing about digital penetration. Mr.

C.A.P.K.’s evidence that he only made those admissions because he was worried about being charged with something more serious and that the questioning made him doubt his memory is difficult to accept. He told Sgt. Hardy that he wasn’t truthful with Cpl. Hobbs because he was afraid and yet he was able to maintain his denial of touching the complainant, trying to have sex with her or laying beside her. [ 69 ] My impression is that Mr. C.A.P.K. was somewhat reluctant to make those admissions, hence his language, but that he did so voluntarily. There was no “quid pro quo” and Sgt. Hardy did not question Mr.

C.A.P.K. about digital penetration at all prior to the admission. It may be that Mr. C.A.P.K. made that admission because of some self-generated hope that, if he did, he wouldn’t be in as much trouble. It may be that the moment he made the admission he was still feeling badly about what had occurred that night – that he had tried to “advance on her”. However, my focus is on the circumstances and context in which the admissions were made, keeping in mind Mr. C.A.P.K.’s personal attributes. At the end of the questioning, Mr. C.A.P.K. was clear and firm in his answers including saying to Sgt.

Hardy that “this must look pretty bad on my end” and that it felt good “to get if off my chest”. [ 70 ] In all the circumstances here, I do not have a reasonable doubt that Mr. C.A.P.K.’s will was overborne, that he had become confused or doubted his memory. Conclusion: In conclusion, I am satisfied that Mr. C.A.P.K. was aware that what he was saying to both police officers, Cpl. Hobbs and Sgt. Hardy, could be used in evidence against him and the interview techniques used by Cpl. Hobbs and Sgt Hardy do not rise to such a level that they undermined Mr. C.A.P.K.’s control over his mind or his will.

I also do not accept that they made him doubt his memory. I have considered all the concerns raised by Mr. C.A.P.K. and the totality of the circumstances including his youth and lack of sophistication, but find no support in the evidence that would cause me to have a reasonable doubt that when he made his statements, and ultimately the confession, it was improperly induced, or that his will was overcome. I conclude that the Crown has established, beyond a reasonable doubt, that Mr. C.A.P.K.’s statements to Cpl. Hobbs and Sgt.

Hardy were voluntary. _____________________________ The Honourable Judge Flewelling Provincial Court of British Columbia