Her Majesty the Queen - v. -, 2013 SKPC 009

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 009 Date: January 16, 2013 Information: 37241217 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - W. B. Appearing: C. Chudyk For the Crown P. Baumgartner For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . JUDGMENT ON VOIR DIRE B. J. TOMKINS, J I. BACKGROUND

[ 1 ] W.B. is charged with offences under sections 151 and 271 of the Criminal Code . The offences are alleged to have occurred between January 1, 2005, and January 1, 2007. However, no complaint was made to the police until 2011, and W.B. was not aware of the allegations until February 16, 2012. Although W.B. was a youth at the time the offence is alleged to have occurred, he was almost 20 years old and an adult on February 16, 2012. [ 2 ] On that date, Cpl. Hovdestad went to the last known address he had for W.B. and there, spoke to his father.

The father advised that W.B. no longer lived there, but that he would contact him and let him know the police wished to speak to him. [ 3 ] W.B. contacted the police later that day and agreed to meet Cpl. Hovdestad outside a local grocery store. When he arrived, Cpl. Hovdestad and his partner told W.B. he was under arrest for the noted offences and took him to the police station in their police vehicle. En route, he was advised of his right to counsel and his right to remain silent. He understood both. [ 4 ] At the station, W.B. spoke to a lawyer and then was escorted to the interview room.

The interview was audio and video recorded and I viewed it in the course of the voir dire hearing. [ 5 ] The interview commenced at about 4:32 p.m. and ended at 6:51 p.m., a total of about two and a half hours. In the course of the interview, W.B. made a statement which he argued was not voluntary and should be excluded. [ 6 ] On his behalf, it was argued that the circumstances of the interview and the actions of the police were so oppressive as to deprive W.B. of his free will and therefore of his ability to choose whether or not to respond to or answer the police during his interrogation.

For these reasons, it was argued, the statement was not made voluntarily and should be excluded. [ 7 ] The Crown argued that the circumstances and actions of the police were neither improper nor oppressive and that the statement was made voluntarily. II. THE VIDEOTAPE OF THE INTERVIEW [ 8 ] I will give a general sense of the nature of the interrogation in the following narrative. [ 9 ] Before the officer entered the room, W.B. can be seen sitting at a table with his hands over his face, crying. He is clearly distraught. Then Cpl. Hovdestad entered. [ 10 ] At the outset of the interview, Cpl.

Hovdestad explained that his job was to learn what happened on the day in question; he said he wanted to know the truth. He reminded W.B. of his rights and warnings and confirmed that he had received the advice of counsel. [ 11 ] Cpl. Hovdestad then turned the conversation to one about W.B.'s personal life, his common law relationship, his child, his job and the fact that W.B.'s life was going well and had turned around from what it had been some years earlier. [ 12 ] At various intervals in the interview, Cpl.

Hovdestad encouraged W.B. to come clean, pointing out that W.B. was a "different guy" than he had been five years earlier. He counseled that events from years back were part of who he was now. The officer said W.B. needed to deal with events from those past times, if he was to be a man and have honesty and integrity. [ 13 ] W.B. repeatedly denied doing anything to the complainant. The officer disclosed where the incident is alleged to have occurred; W.B. denied being in that room at all. He repeatedly, again, denied "doing anything like that".

[ 14 ] W.B. asked to call his girlfriend saying she needed to know he was in custody and that he needed to talk to her. The officer declined to allow this. [ 15 ] At 4:52 p.m. the officer left the room. While he was gone, W.B. can be seen crying. At 4:56 p.m., Cpl. Hovdestad returned and questioning continued. [ 16 ] W.B. again asked to talk to his girlfriend. This time Cpl.

Hovdestad said he couldn’t talk to her at that time, but that he would eventually give him a chance to talk to her. [ 17 ] The officer then put to W.B. what he referred to as "two types of accused" - those who made a mistake and want to take it back and those "who offend on kids because they like kids that way". He asked whether the incident was simply children playing around or whether W.B. is a pedophile. The officer became more forceful during this part of the interrogation. [ 18 ] He then became more gentle and suggested that he believed W.B. is "just a kid who made a mistake".

He suggested again that maybe W.B. was just experimenting, or maybe the complainant instigated the incident. [ 19 ] W.B. continued to deny doing anything to, or with, the complainant. [ 20 ] At 5:18 p.m. Cpl. Hovdestad left the interview room for a second time. When he returned four minutes later, he allowed W.B. to call his girlfriend. When they couldn't reach her at her number, the officer tried another W.B. suggested and contact was made.

W.B. talked to her for about three minutes and denied the offence a number of times during the call. [ 21 ] Eventually, at 5:53 p.m., W.B. suggested that the children were playing hide and seek and that he was "probably" hiding in the shower in the washroom. The complainant came in to use the facilities and was just pulling up her pants when her brother came in and jumped to conclusions. The brother asked why W.B. was in the washroom while the complainant was there with her pants off. W.B. and the brother argued; W.B. insisted that he was merely in the washroom as part of the game.

The fact that he and the complainant were both there was, in essence, a coincidence that the brother did not accept. W.B. said he did not touch her or even look at the complainant. [ 22 ] The officer left the room for a third time at 6:09 p.m. and returned at 6:20 p.m. He told W.B. that "it was all making sense" except that when the brother came into the bathroom, W.B.'s pants were down. W.B. vehemently denied this. [ 23 ] Cpl. Hovdestad offered W.B. a scenario whereby the complainant undid W.B.'s pants. W.B. denied this. [ 24 ] Maybe, the officer suggested, W.B.'s pants were baggy and fell down.

W.B. said this was correct - that his pants were loose and fell down often. He volunteered that he sometimes didn't wear underwear. So when the brother came into the bathroom and W.B.’s pants were down, the complainant's pants were down from using the toilet. He said when he ran from the room after being discovered in this situation, it was possible his penis touched the complainant as he ran by her on his way out.

He was pushing to get away and said it was possible it touched the complainant between her butt cheeks. [ 25 ] Eventually, at the officer's suggestion, W.B. conceded that he was probably masturbating in the shower when the complainant came into the room. [ 26 ] The officer left the room for a fourth and final time at 6:44 p.m., shortly after hearing this explanation. He returned nine minutes later and advised W.B. that the complainant had said the contact was not accidental and that W.B. had attempted to put his penis in her bum. W.B. denied this.

The officer said the complainant said W.B. tried to keep her from screaming. W.B. said she was lying if she said that. The officer said the complainant said W.B. told her not to tell. W.B. said he did not say or do those things. [ 27 ] The interview ended shortly thereafter.

[ 28 ] In the course of the approximately two and one-half hour interview, W.B. was openly sobbing a great deal of the time. Also in the course of the interview, he denied the allegations and committing any sexual offence involving the complainant well over 60 times. While almost all of the flat denials occurred before W.B. gave the explanation described above, he continued to deny an assault afterwards as well. III. W.B.’s EVIDENCE ON THE VOIR DIRE [ 29 ] W.B. also testified on the voir dire . He said he understood that he did not have to make a statement but the officer "kept going on and on about it".

He said he wanted to tell him that he hadn't done anything. He said the officer would not stop asking him questions and he reached the point where he wasn't sure the interview would end. He felt, he said, that he had no choice. [ 30 ] In cross examination, he confirmed that he hadn't asked to use the washroom, nor had he asked for a break. He believed he'd be there all night and did not believe he'd be released. He confirmed that Cpl. Hovdestad was reasonable and did not raise his voice. However, while he knew that he did not have to say anything in the interview, he also felt that he didn't have a choice.

He said Cpl. Hovdestad was forcing him to speak and say what he wanted him to say. IV. VOLUNTARINESS [ 31 ] The Supreme Court of Canada, in R. v. Oickle [1] , held that when considering voluntariness, the Court must consider four factors as follows: 1. Threats or Promises; 2. Oppression; 3. Operating Mind; and 4. Trickery. 1. Threats or Promises [ 32 ] There is no suggestion that W.B. was threatened by Cpl. Hovdestad or anyone else. However, Cpl. Hovdestad repeatedly encouraged W.B. to deal with events from his past so that he could move forward.

He reminded W.B. that he was a young man growing up and that opening “the closet" and dealing with what was in there was "part of being a man". He suggested he was giving W.B. an opportunity to do these things. [ 33 ] In accordance with Oickle , I am satisfied that Cpl. Hovdestad's comments of this nature are in the nature of moral or spiritual inducements. These are not inducements which will generally render a confession involuntary because they, in fact, do not offer the accused anything; there is no quid pro quo .

They are an appeal to conscience, or to character, and may provide a motive to give a statement or make a confession but will not render it involuntary. 2. Oppression [ 34 ] The concept of oppression in the context of voluntariness is described in Oickle in paragraph 58 as follows: [2] If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions.

Alternately, oppressive circumstances could overbear 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.

[ 35 ] There are two aspects to this factor, therefore. It is the second that W.B. argued is present in this case. That is, he says that the interview was of such an oppressive nature that his will was overborne and he was thereby deprived of effective choice. [ 36 ] The concept of oppression overbearing the will of a person has been considered in numerous cases. The headnote to R. v. Paternak [3] summarizes Mr. Justice Kearns' remarks nicely as follows: The existence of an atmosphere of oppression does not of itself create a loss of effective choice.

For an otherwise healthy and mature person to be deprived of an effective choice, the influence must be so overbearing that it can be said that the detainee has lost any meaningful independent ability to choose to remain silent and has become a mere tool in the hands of the police. [ 37 ] W.B. argued that such conditions exist in this case. I do not agree. [ 38 ] There is no doubt that Cpl. Hovdestad was persistent when interviewing W.B. and that he refused to accept W.B.'s many, many denials. Instead, he stated that he knew W.B. had done something.

He suggested face-saving scenarios where the incident was incidental, child play or initiated by the complainant. He appealed to W.B.'s integrity. He offered W.B. a chance to tell his side and help him learn the truth. [ 39 ] Cpl. Hovdestad listened to W.B.'s responses without interrupting him. While he challenged W.B.'s responses, he did not ignore them.

He did not engage in trickery or provide false information. [ 40 ] Oickle referred to the fact that, in that case, questioning was "persistent and often accusatorial" but never "hostile, aggressive or intimidating." This was held not to constitute oppression. [ 41 ] In R. v. F. (J.P.) [4] , the British Columbia Supreme Court referred to R. v. Tessier [5] , a decision of the New Brunswick Court of Appeal. The Court in R. v.

F. (J.P. ) said [6] : Drapeau J.A. noted that while the trial judge had described the police questioning as smooth, persistent and repetitive, it was not found to be aggressive, hostile or intimidating. He held at para. 48 that smooth, persistent and repetitive questioning will rarely, if ever, be objectionable and rather is the hallmark of a good interrogator.

Drapeau J.A. also noted at para.49 that [t]here is a world of difference between a pressure-filled environment - a custodial police interrogation, by its very nature, pressures the suspect - and an atmosphere of "oppression", as that concept is defined by the jurisprudence dealing with the modern confessions rule. [ 42 ] In this case, Cpl. Hovdestad's approach can be considered nothing more than, in Justice Drapeau's words, smooth, persistent and repetitive. Even W.B. said that the officer had been reasonable. [ 43 ] The interview was not brief but neither was it unduly lengthy.

Even so, there were four breaks in questioning, totaling 28 minutes. In addition, W.B. was allowed a few minutes to speak to his girlfriend. These mitigate against the length of the interview. [ 44 ] In these circumstances, it cannot be said that the officer's influence was "so overbearing that it can be said that the detainee has lost any meaningful independent ability to choose to remain silent" as was stated in Paternak or that the "circumstances were so oppressive as to have caused the accused's free will to be overborne" as the test was stated in R. v.

Chapple . [7] [ 45 ] W.B. did not assert his right to silence at any time during the interview but I am satisfied that he understood that right. Indeed, W.B. himself testified that he knew he did not have to give a statement but the officer "kept going on and on" and that he "wanted to tell him I didn't do anything." Eventually he said that he wasn't sure the interview would end, in effect, unless he made a statement. He felt

the officer was "forcing" him to talk and to say what he wanted to hear. He said, in that sense, he had no choice. [ 46 ] This argument includes aspects of both inducement and oppression. As to inducement, it is similar to the circumstances discussed in Oickle which quoted from R. v.

Rennie [8] that "There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession." [ 47 ] This is akin to the suggestion of an inducement but for which there is no quid pro quo . It will not render a statement inadmissible. [ 48 ] As to oppression, W.B.'s belief is, in fact, evidence of choice. W.B.'s belief and decision show that he recognized his situation, considered his alternatives and chose to speak.

He had not, as stated in the portion of Paternak quoted above, "lost any meaningful independent ability to choose to remain silent"; nor had he become "a mere tool in the hands of the police." [ 49 ] For all of these reasons, I am satisfied beyond a reasonable doubt that Cpl. Hovdestad’s actions in the course of the interview were not oppressive, that W.B.'s statement was not obtained or given as a result of oppression and that he had not, by the circumstances of his interrogation, or otherwise, been deprived of his free will. 3.

Operating Mind [ 50 ] W.B. argued that the circumstances of his interrogation were such as to deprive him of an operating mind and that the statement is therefore involuntary on that basis. That this is not the same as the test for a statement obtained in oppressive circumstances was made clear in Paternak where Mr. Justice Kearns said: [9] The judge here, to be sure, did ask herself whether the accused had an "operating mind". But it is made clear in Whittle that this is not the same as the "effective choice" test. It is something more basic. [ 51 ] He went on to quote the test of an operating mind from R. v.

Whittle [10] as follows: The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind?

It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest. [ 52 ] Clearly W.B. knew what he was saying, that he was saying it to a police officer and that it might be used in proceedings against him. For reasons given above, I am satisfied that he had an operating mind at the time the statement was made. 4. Trickery [ 53 ] There is no allegation that trickery or deceit were used by the police in the course of W.B.'s interrogation and no argument that his statement was involuntary on this basis. IV.

RELIABILITY [ 54 ] W.B. argued that even if I find the statement to have been given voluntarily, I ought to exclude it on the basis that it is not

reliable. In this regard, W.B. relied primarily on the Paternak decision which stated: [11] However, even if the statement is found to have been made voluntarily, it may nevertheless be excluded if, as a result of what was said or done by the police authorities in eliciting the statement, its use in the proceedings would bring the administration of justice into disrepute. [ 55 ] In my view, this is not a matter of community shock. That is, the circumstances of taking the statement may have been persistent and even aggressive but they were not such that the Canadian community as a whole would be shocked.

Indeed, we must afford the police some tools with which to conduct investigations. In this regard, I am reminded of the portion of R. v. Precourt [12] quoted in Oickle at paragraph 15 : Although improper police questioning may in some circumstances infringe the governing [confession] rule, it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation. V.

CONCLUSION [ 56 ] For all of these reasons, I find W.B.'s statements to Cpl. Hovdestad made February 16, 2012, in the course of his interrogation to be voluntary and will be admitted in these proceedings. [ 57 ] Dated at the City of Regina, in the Province of Saskatchewan, this 16 th day of January, A.D. 2013. _____________________________ B.J. Tomkins, J