R. v. Franklin Date:, 2011 BCPC 16

Citation: R. v. Franklin Date: 20110107 2011 BCPC 0016 File No: 81407-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STACEY WARREN FRANKLIN ORAL REASONS FOR JUDGMENT ON VOIR DIRE OF THE HONOURABLE JUDGE DYER Counsel for the Crown: T. Iandiorio Counsel for the Accused: R. Gunnell Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: December 2, 2009; April 26, May 6, July 9, October 8, November 12, 2010; January 7, 2011 Date of Judgment: January 7, 2011 [ 1 ] THE COURT: Mr.

Franklin is charged with impaired driving on December 26, 2008 in Maple Ridge, British Columbia. [ 2 ] At the commencement of his trial, counsel for the accused, Mr. Gunnell, indicated that there were two broad issues to be dealt with from the defence's perspective on a voir dire : (1) alleged Charter breaches, and (2) whether or not certain statements made to the police by Mr.

Franklin at the Coquitlam RCMP detachment following his arrest were voluntary, as this term is understood in criminal law. [ 3 ] With counsels' agreement, the trial proceeded with four witnesses being called by the Crown, three being police officers, all of whom testified in a voir dire . I then gave reasons relating to the Charter issues. Thereafter counsel agreed that the voir dire would continue and I would hear submissions on the second above issue: were the statements made by Mr. Franklin voluntary? No further evidence was called on the continuing voir dire , either by Crown or defence.

It was agreed that I could rely upon the evidence already heard at trial or on the voir dire in coming to my decision on this second issue.

[4] It is fair to say that the onus of proof on this issue rests with Crown counsel. Crown must establish with proof beyond areasonable doubt that the various statements made by the accused were voluntary. That is to say, they were made by the accused to aperson in authority, here a police officer, voluntarily or without fear of prejudice or hope of advantage, or sometimes it is said withoutbeing prompted by a threat or an inducement. See, for example, R. v.

Oickle, (2000) 2000 SCC 38 , 147 C.C.C. (3d) 321, ajudgment of our Supreme Court of Canada. [5] There is no issue in this case that the police officers who dealt with Mr. Franklin on December the 26th and/or 27th, were allpersons in authority. [6] The contested statements (three in number) were made by Mr. Franklin at the Coquitlam detachment in the cell area followinghis arrest for impaired driving and after he had been transported there by one Constable Wilson for purposes of providing breathsamples. All were made to Constable Wilson and all were given in evidence by him.

They are as follows, as I understand Crown'ssubmission, and as set out in the transcript of Constable Wilson's evidence given on December 2nd, 2009 at the voir dire. [7] The first is found at page 63 (line 9-40): Q So at 12:06 a.m., you are with Mr. Franklin in the breathalyser room and you've begun the observation period; is that right? A Correct. Q And can you tell the court about any conversation that you had with Mr. Franklin at that time? A Conversation that we had covered Mr. Franklin at one point calling himself a "dumbass". He indicated to myself that he knew Iwas just doing my job.

We talked -- he talked on a number of occasions about wanting a cigarette even though I'd indicated to him thatthat was not going to happen until after the breathalyser process. Mr. Franklin spoke of being an alcoholic, being depressed, as thetrigger [and] that had him drinking on Christmas Day and Boxing Day. Those are my memories of the -- of my conversation with -- withMr. Franklin. Q All right. If I could direct your attention to 12:12 a.m. Did you ask any questions of Mr. Franklin at that time? A No, if I could refer to my notes on 12:12 a.m., Your Honour? THE COURT: Yes, go ahead.

A At 12:12 a.m., I asked Mr. Franklin, "Have you been through this process before?" He answered, "No, basically, I'm a prettygood guy, just a dumbass tonight." MS. IANDIORIO: Q Did that -- A The conversation continued, "Do I have to have the breathalyser? I'm impaired." [8] The second is found at page 66 (line 20 to page 67, line 3): Q Mr. Franklin was asked to provide a breath sample and he did that; is that right? A Correct. He provided a sample of his breath. Q And that was at 12:34 in the morning. And at 12:35, you began the second observation period? A I did.

Q And can you relate any conversation that you had with Mr. Franklin at that time to the court, please? A The -- I had referred to the conversation prior in general about Mr. Franklin's comments about being an alcoholic and using theterm "dumbass" and assuring me that I was -- that he understood that I was just doing my job and those were the -- the conversation thattook place at that time. Q You have a conversation with Mr. Franklin during the second observation period wherein he advised you that -- that he had beendrinking?

A Again I would need to refer to my notes for clarity for the period of the second observation period. THE COURT: All right. Well, I guess you'd better do that then. The question the Crown is asking you, I think, is what conversationoccurred during this second observation period at the detachment that started at 12:35. A Correct. The second observation period did start at 12:35 to 12:36. Mr. Franklin apologized saying, "I'm sorry, guys. Dumbass. You're just doing your jobs," as I'd indicated from my memory those words. [9] The third is found at page 67 (line 11 to 25): Q Did you have a conversation with Mr.

Franklin at 12:48 in the morning? A Again, referring to my notes in regards to the specifics of the conversation at 12:48 is what I would require.

THE COURT: Yes, go ahead and do that. A At 12:48 the conversation with Mr. Franklin covered him speaking about being an alcoholic. He explained that he hadn't drankin six months and that he drank on Christmas Day and Boxing Day, as he had been dealing with depression and that Christmastime is atrigger that caused the -- that caused it.

And again, from memory, I had indicated those comments and could not certainly recall all ofthe times from my memory. [10] These statements were given by the accused at the detachment at approximately the times referred to in the above evidence. [11] Constable Wilson's evidence was that he first met Mr. Franklin concerning the charge before the court at 11:23 p.m., December26, when he arrived on scene and that he was physically present with Mr.

Franklin with one exception, until approximately 2:10 a.m.,December 27, when he drove him home and dropped him at his residence in a townhouse complex on 115th Avenue, not very far, orwithin a few blocks, from where he first met him in front of Mr.

Parkes' residence on Maple Crescent in Maple Ridge. [12] The one exception was when early on after his arrival at the police detachment, the accused asked to use the bathroom and he didso in the company of one Constable McRae, who was, on December 26th, with a new member at least to the Maple Ridge detachmentthat evening working with one Constable Porter doing field training. Constable Wilson testified that he and the accused had arrived atthe detachment with Constable McRae at 11:54 p.m. and that Mr. Franklin had gone to use the bathroom and was alone with McRaefrom 11:55 p.m. to 11:57 p.m., some two minutes.

Otherwise Wilson said he was with the accused the whole time. [13] Wilson testified that he had not seen McRae have any physical contact with Mr. Franklin, and otherwise minimal contact withhim. Constable McRae really played no

part in Mr. Franklin's investigation on the evening in question. [14] Constable McRae testified on the voir dire that he had taken the ASD to the scene and given it to Constable Wilson to use forpurposes of testing Mr. Franklin. He then left his ride along with Constable Porter at the scene to take charge of Mr. Franklin's vehicleand drove the accused and Constable Wilson to the Maple Ridge detachment. He agreed he had supervised Mr. Franklin on thebathroom trip above referred to. He was not able to identify him on the voir dire.

He estimated he was alone with him four minutes orless, which is certainly in accordance with Constable Wilson's evidence on point. McRae could not recall having any conversation withMr. Franklin, although honestly I think admitted he may have, there may have been words spoken. He said he would not have threatenedhim in any way or offered any inducement to him, for example, by suggesting it would be better for him to talk to the police than not. [15] On cross-examination, he admitted he had made no notes of his dealings with Mr. Franklin.

He said he recalled no conversationat all this evening with this passenger, referring to Mr. Franklin. [16] Constable Wilson testified that he at no time made any promises or offers to Mr. Franklin on the evening in question, nor did hethreaten him. No one to his knowledge in his presence either threatened Mr. Franklin or made any promises or offers to him. [17] Sergeant David Stewart testified on the voir dire. He was the qualified technician on duty on December 26-27, 2009 at theMaple Ridge detachment. He was then a traffic commander with the Coquitlam RCMP with some 28 years experience as an RCMPofficer.

He first met Mr. Franklin in the Ridge Meadows detachment cellblock area at 12:23, December 27th in the Datamaster roomwith Constable Wilson. He was in his presence for some part of 40 minutes in total, during which time he took two breath samples foranalysis. He testified that he never promised or threatened the accused.

I understood he meant that he never promised or threatened Mr.Franklin anything, nor did anyone else do so in his presence. [18] None of these three officers were really challenged on cross-examination and certainly not successfully in my view, on cross-examination as to the truthfulness of their testimony, that they had not threatened the accused, promised him anything or offered himanything in essence to get him to talk to them. [19] Mr.

Gunnell in his closing submission on the voluntariness issue does not assert that his client made the above three statements toConstable Wilson because of such conduct. [20] This is not a case like, for example, R. v. Moore-McFarlane (ON CA), [2001] O.J.

No. 4646, a judgment ofthe Ontario Court of Appeal, where a 19-year-old accused testified that a confession he had made and which Crown relied on for proof ofhis guilt on a robbery charge, was false and that he had been coerced into giving it after having been assaulted and interrogated by policeofficers of a Toronto hold-up squad, while he was naked (see para. 7 of the reasons). [21] There is no suggestion of any specific misconduct on the part of any police officer who dealt with Mr. Franklin in the evidenceon the voir dire or in defence counsel's closing submission.

Certainly no one testified on behalf of the accused as to any such facts on thevoir dire. [22] I hasten to observe that the onus is on the Crown on the voir dire to establish that the statements they seek to rely on arevoluntary. The accused need not testify or call witnesses to prove they are not, or even to raise a reasonable doubt that they are not. [23] Mr. Gunnell challenges the voluntariness of the three statements on the basis that the record of what the accused may have saidto the police is incomplete.

There is not enough context relating to the statements to permit me to find that they are voluntary and thatthe Crown has established this beyond a reasonable doubt. Mr. Gunnell argued that Constable Wilson really only made notes of thingsthat he felt would help the Crown, the inculpatory or bad points, so to speak, and not the good or exculpatory elements of what mighthave been said. As well, it is suggested certain comments Wilson made concerning Mr.

Franklin's release or whether he would have tostay overnight during one of the two observation periods, in essence might have affected the voluntariness of the statements. [24] The test to be applied by me in assessing the voluntariness of these statements is set out in Moore-McFarlane referred to aboveat paragraph 64 as follows: [64] I agree that there is no absolute rule requiring the recording of statements. It is clear from the analysis in both Hodgson and Oickle

that the inquiry into voluntariness is contextual in nature and that all relevant circumstances must be considered. Iacobucci J. says soexpressly in Oickle in the following words (at para. 47, p. 346): The application of the rule will of necessity be contextual. Hard and fast rules simply cannot account for the variety ofcircumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive.

A trial judge should therefore consider all the relevant factors when reviewing a confession. [25] One issue in Moore-McFarlane was, as I have said, whether the accused's statements were in essence made under duress,including after he had been beaten by the police. This had to do with the putative reliability of the evidence (see para. 60). [26] A main and related issue was the officers' failure to record in notes the statements allegedly made by the accused to them.

Crown argued that there was no legal requirement that they do so, and as well, that this argument confused issues of weight with issuesof admissibility, and a failure to accurately or completely record a statement should not render it inadmissible (see para. 63). TheOntario Court of Appeal continued its discussion on this main and related issue at paragraph 65-7 of the reasons as follows: [65] However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. Thatonus may be readily satisfied by the use of audio, or better still, video recording.

Indeed, it is my view that where the suspect is incustody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thoughtto the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect.

In such cases, it will bea matter for the [trial judge on the voir dire] to determine whether or not a sufficient substitute for an audio or video tape record has beenprovided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. [66] The sufficiency of the record does not go exclusively to the question of ultimate reliability and weight as contended by the Crown. One of the cases relied upon by the Crown on this point is the decision of this court in R. v.

Lapointe and Sicotte, (1983), (ON CA), 9 C.C.C. (3d) 366 (C.A.) aff'd (1987), (SCC), 35 C.C.C. (3d) 287 (S.C.C.) where the court stated asfollows (at para. 37, p.380): Questions regarding the accuracy of the recording of an accused person's words by reason of unconscious editing on the part ofthe police have to do with the authenticity of the statement and do not fall to be decided by the judge on the voir dire. If he does so, asapparently the learned trial judge did in the present case, he is usurping the function of the trier of fact.

The 12 bilingual jurors at thistrial were eminently capable of resolving the issues of accurate or inaccurate recording of the respondents' words, of unconscious ordeliberate inaccuracy, editing or deliberate fabrication. They are issues of authenticity and are not to be confused with issues ofadmissibility. [67] It is important to read this statement of principle in context.

The issue that arose in Lapointe - whether the accused's capacity tounderstand English was sufficient for him to have given the statement alleged by the police officers - was one that related to the ultimatereliability of the statement and the weight that was to be attached to it. As the court stated, it was only where an accused's capacity wasso deficient as to make it impossible for him to have given a statement that the trial judge would be justified in excluding the statementon that basis.

Hence the court concluded that, in this case, this issue was not a matter to be determined at the voir dire stage of theproceedings. The decision in Lapointe does not stand for the proposition that all issues of accuracy and completeness of recording areleft to the triers of fact. Such an

interpretation would run contrary to centuries of jurisprudence that require careful scrutiny of thecircumstances surrounding the taking of a statement by persons in authority. And, in my view, the completeness, accuracy and reliabilityof the record have everything to do with the court's inquiry into and scrutiny of the circumstances surrounding the taking of thestatement.

Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonabledoubt where proper recording procedures are not followed. [27] The Moore-McFarlane decision was not relied upon by counsel for the defence. Rather, Mr. Gunnell cited three casessupportive of a similar proposition as stated in Moore-McFarlane, namely

(1) R. v. Lovelace, 1997 Q.B.C.N.J. No. 38, a judgment ofthe Saskatchewan Queen's Bench;

(2) R. v. Faulder and Romero, 2000 BCPC 83, a judgment of this court; and finally

(3) R. v.Robertson, New Westminster Registry, Supreme Court of British Columbia No. X067193-2, reasons given June 29th, 2005, apparentlyunreported. [28] Lovelace was a decision on a voir dire concerned with voluntariness of a statement given to police by an accused charged withpossession of crystal meth for trafficking. The accused was taken to an interview room and questioned by a police officer for some 50minutes about the alleged crime. The camera in the room was not operational. No recording was done.

Rather, the officer made sixpages of notes comprising no more than two eight-and-a-half-by-11-inch pages, said to be a record of what the accused told him andcontaining several inculpatory statements.

Defence argued that as the whole of the accused's statement or conversation with the policeofficer was not recorded, therefore the whole statement should be excluded. [29] On cross-examination the officer testified he could not recall his exact conversation with the accused, that his notes were just asummary, and that at one point during his conversation he did tell the accused it might be to his advantage to supply information to him. [30] The trial judge excluded the statement, all of it, saying this at paragraph 13 of his reasons: [13] Having read and considered all of the above cases, I am driven to the conclusion that the statement is not admissible becauseConstable Jutras did not keep a verbatim account of what was asked of, or answered, by the accused.

What he has in his notebook ismerely, as stated by him, a

summary of what was aid to him by the accused. In the end result his notes are nothing more than a truncatedversion of what took place in the interview room on January 30th, 1997. Here, it would be extremely prejudicial to the accused to allowin the results or partial results, of Constable Jutras's conversation with the accused on January 30, 1997. This leaves open ConstableJutras's statement to the accused that it would be to the accused's advantage to tell him what he knows about suppliers. [31] I note that his initial reason seems not supported by such authorities as Moore-McFarlane.

It is also clear that this judge wasconcerned about an advantage being offered to the accused. This case appears not to have been followed in B.C. It is only mentioned inR. v. Billings

(2004) BSCS 456, a judgment of Mr. Justice Romilly of our Supreme Court, the only case relied upon by Crown counsel in

the case at bar. Lovelace, of course, is not binding on me. [32] R. v. Faulder has not apparently been followed in British Columbia either. In issue here were statements given by two storeemployees, suspected of stealing from their employer, to the store's loss prevention manager, and store supervisor. Each accused wasinterviewed for about four hours and an eight0 and 11-page statement produced.

One issue on the voir dire relating to the statementswhich contained inculpatory comments was whether they were accurate reflections of what was said; were they reliable? [33] His Honour Judge de Couto seems to have considered this issue at the admissibility stage. He concluded, having found that thestatements were not complete but rather a more edited version of what was said by the accused, that upon considering all thecircumstances, he could not conclude beyond a reasonable doubt that the two statements met the common law test of voluntariness.

Thefacts of this case make it clearly distinguishable from those in the case at bar, in my view. [34] In Robertson, decided after Billings and Lovelace, and Faulder, but making no mention of any of these cases, Madam JusticeArnold-Bailey excluded a conversation, two utterances therein, from evidence. The conversation was between the accused and a policeofficer in the context of a grow-op trial. She found it was not voluntary.

She said this at paragraph 3 of her reasons: [3] The issue here is whether or not the Crown has proven voluntariness in relation to these two phrases or statements attributed to theaccused beyond a reasonable doubt. Within that context, the Crown must prove the statements were not coerced and induced. Thatincludes enough of a context as to the nature of the exchanges between the person in authority here, Constable Ward, and the accused.

Averbatim recording of all conversations is not required, but obviously such a record, particularly a videotaped statement may be of greatassistance in proving voluntariness. [35] The police constable had no notes of either comment made at the time the accused allegedly made them. He agreed he could notrecall the conversation word for word. Madam Justice Arnold-Bailey cited the case of R. v. Smith (1981) (QC CS),60 C.C.C. (2d) 327, Quebec Superior Court, also relied on by my brother Judge De Couto in R. v.

Faulder (at page 11) as follows inparagraphs 9 and 10 of her reasons in Robertson: [9] The next case is the case of R. v. Smith, a decision of the Quebec Superior Court, Criminal Jurisdiction, (1981) (QC CS), 60 C.C.C. (2d) 327. In that case there is reference to Mr. Justice Kaufman's text on the Admissibility of Confessions. In myview that is still a highly regarded work in relation to confessions. The quote in this case pertains to the 3rd edition in 1979 and readingfrom page 2 of that decision, which refers to pages 284-285 of Mr.

Justice Kaufman's book: The Crown's obligation to introduce the good with the bad was established in 1987 when it was held in R. v. Jones that "There isno doubt that if a prosecutor uses the declaration of a prisoner he must take the whole of it.

He cannot accept one part and leaveanother." [10] And then further on at page 285 the quote in the Smith case is as follows: Later at page 285 he adds: Canadian courts have in general followed the early English jurisprudence and it is now well settled that if astatement is partly inculpatory and partly exculpatory and the Crown elects to adduce evidence of the statement, the whole of thestatement must be put in and in such case it is received as evidence of its truth as to the exculpatory as well as the inculpatory part. [36] She held that while in Robertson the police officer was not taking a statement, that the above rule in Smith still applied inrelation to voluntariness and that there must be a sufficient context for the court to be satisfied that the Crown has met the burden.

Sheaccepted the verbatim record of all that was said by the accused to the police officer was not required in the case before her, or generallyas a proposition of law, but held that there was insufficient context in the evidence before her to assess whether or not the commentsmade by the accused were part of a general conversation between the accused and the officer, during which something might have beensaid to induce him to make the comments in issue.

She then said this at page 7 of her reasons: This is particularly so as the officer admits that they did have general discussion about the break and enter to the premises, and the grow-op and the process that the accused would have to go through given the charges that he faced. General discussion about one's situationand the charges can very quickly lead to comments that may induce an accused to say something incriminating.

Therefore while phrasesand gists of conversation may appear to be voluntary, there still has to be, in my respectful view, a sufficient context. [37] This decision appears not to have been followed or referred to anywhere in the Province of British Columbia. [38] Crown relies on the Billings decision, a judgment of Mr. Justice Romilly of our British Columbia Supreme Court on a voir diredealing with whether or not the Crown had properly proven certain unrecorded statements made by the accused at the scene of a motorvehicle accident were voluntary.

Defence argued, apparently relying on Lovelace, above, that these statements should be excludedbecause their

summary or gist might have been innocently distorted. Mr. Justice Romilly made no comment on Lovelace. He followedR. v. Moore-McFarlane, above, noting that there was no absolute rule requiring the recording of statements. He then said this,paragraphs 55 and 56 of his reasons: [55] The responsibility of the trial judge on a voir dire is to determine the voluntariness of the statement made by the accused and not todecide whether or not it is true. The accuracy and completeness of the words attributed to the accused are a matter of weight for thejury.

The fact that the entire statement of the accused was not recorded goes to the weight to be attached to the statement, not to [its]admissibility;... Citing R. v. Sagliocco and other cases which I will not refer to. [56] On the basis of the foregoing, I have no hesitation in concluding that although the statements were not audio taped or otherwiserecorded, this does not affect their admissibility as evidence at trial. It may, however, affect the weight that the jury gives to the

statements. [39] Crown argues that this is the legal principle which is applicable on the voir dire before me and says that there is more thansufficient context relating to the statements to permit me, unlike in Robertson, to find that the Crown has proven beyond a reasonabledoubt that the statements in issue are freely and voluntarily given. [40] To similar effect as Mr. Justice Romilly's statement of the law are the cases of R. v. Legere, (1988) (NB CA),43 C.C.C. (3d) 502, a judgment of the New Brunswick Court of Appeal, and R. v.

Richards, (1997) (BC CA), 6 C.R.(5th) 154, a judgment of our Court of Appeal. [41] In Legere the accused was arrested for murder. Some six months after his arrest, he met at his own request with a police officer,and in the course of an hour-and-a-half conversation in a local penitentiary, essentially gave a highly incriminating oral but unrecordedstatement. After departing the penitentiary this officer made notes of parts of the conversation he could recall and testified later on a voirdire at the accused's murder trial, using these notes to refresh his memory.

The trial judge admitted the statement as given freely andvoluntarily. Defence counsel on appeal argued he erred in doing so for a number of reasons, including that the statement wasincomplete. Mr. Justice Angers said this on point at page 510 of his reasons: It is true that the evidence of Sgt. Johnston provided an incomplete statement because of the manner in which it was taken butcompleteness or exactness does not render a statement inadmissible. Necessarily, it is a question of weight.

Here, the trial Judgeproperly instructed the jury with respect to the weight to be given to the statement or to the parts which they would accept. Arguments 4and 5 must [therefore] fail. [42] In Richards, the accused was charged with murder, and on his arrest he made two non-recorded statements to the RCMP at theirdetachment, although a tape recorder was available. The officers elected not to use it because they felt it would inhibit the accused'sresponses. One officer made handwritten notes, which were later transcribed and expanded upon. Notes were made while these initialinterviews were underway.

Both officers acknowledged that in the final written form the statements were not complete or completelyaccurate records of what was said, and that it was not possible to say how much had been omitted. One officer said he only recordedwhat seemed important. [43] After the accused was released he made a third statement to a police officer over dinner in a restaurant, which was not taped andno notes were taken at the time. Notes were made later.

Subsequent interviews following the accused's later arrest were tape-recorded. [44] The accused testified during a voir dire at his trial and did not testify to having said anything that was not included in thetranscribed statements. The trial judge admitted his first two statements but excluded the third. Braidwood J.A. observed at page 163 ofhis reasons that there is no suggestion that the officers intentionally edited the statements in a way unfavourable to the accused,notwithstanding one officer's testimony apparently relating to the first two statements, that he only recorded what seemed important.

Braidwood J.A. said this at paragraphs 31 to 35 of his reasons: [31] The fact that the investigating officer is unable to recite the exact words spoken does not render a statement inadmissible... (I will not refer to the authorities he cited) [32] Melnick J. instructed the jury that it was for them to determine the content of the statements: First, you must decide whether Mr. Richards made these statements. When he gave evidence, that is when Mr. Richards gave hisevidence, he agreed that he did make statements to those police officers.

He did, however, question the accuracy of their recollections ofhis statements in part and the

interpretation placed on what he said. If you have a reasonable doubt that any part of these statements wasmade by Mr. Richards then you must reject that part. [33] Melnick J. correctly identified the basis on which a statement can be excluded for lack of completeness: that is, a resulting inabilityto determine if it was voluntary (R. v. Belanger (1978), (ON SC), 40 C.C.C. (2d) 335 at 345 (Ont. H.C.J.). It was onthis basis that he excluded the third statement and declined to exclude the first two.

Responding to the complaints about the possiblelack of completeness of the first two statements, he said: ...in general, those matters go to weight and not to completeness or voluntariness. [34] About the third written statement, on the other hand, purportedly summarizing a conversation that lasted some hour and a quarter, hesaid: ...the

summary of the conversation, which was apparently prepared later that night or early the next morning by ConstableMartin, comprises less than one typewritten page. It is highlighted by two specific comments. The rest of the conversation issummarized in two short paragraphs in a very

summary way. The two statements that stand out are, of course, potentially incriminating statements. I have to say that in this instance, I do havea real concern about the completeness of the record of the conversation that can be put to the jury. I dealt earlier in my reasons on thefirst statement with the issue of completeness and of course, have found in favour of the Crown on that issue with respect to statements 1and 2. In this case, however, I find against the Crown. I am sufficiently concerned about the completeness of the

summary of theconversation that Constable Martin has been able to put before me that I cannot conclude that these statements made were indeedvoluntary. [35] In my opinion he did not err in making these [findings]. [45] This decision goes somewhat further than either Billings or Legere and stands for the legal principle that an incomplete statementought not to be rejected as inadmissible on a voir dire dealing with voluntariness merely because it is incomplete, for example, where a

police officer who has not tape recorded an accused's statement is unable to testify as to the exact words the accused stated. It is only if the trial judge has a real concern with the completeness of the record of the conversation made by the police officer relating to a voluntariness issue, I think, that leads him or her to have a reasonable doubt that the statement sought to be admitted as voluntary as a matter of law, that it ought to be rejected. [ 46 ] Legere and Richards were not cited by either counsel in argument.

They are however referred to in the well-known volume Working Manual of Criminal Law at page 107, authored by Justices Sinclair-Prowse and Bennett of our Superior British Columbia Courts and found under the heading " Fact that statement incomplete ".

I expect neither decision alters the principle applied, for example, by Madam Justice Arnold-Bailey in Robertson , where rather than refer to a lack of completeness, she focused on there being an insufficient context provided in evidence. [ 47 ] What is the evidence on the voir dire as to the efforts of Constable Wilson in taking the statements in question? [ 48 ] First of all, Constable Wilson was the main investigating officer with respect to an impaired driving complaint. From11:23 to 11:454 he was dealing with Mr. Franklin at the scene or roadside. For five minutes or so, he merely sat watching Mr.

Franklin next to him in his car awaiting the arrival of the approved screening device which Constable Porter provided to him at 11:35 p.m. At 11:44 p.m., he departed the scene in Constable Porter's police car with Constable McRae riding in the passenger seat, and arrived at the detachment at 11:54 a.m. The first observation period began at 12:06 p.m.

It was at this time when the accused and Constable Wilson were seated alone in the breathalyzer room that Constable Wilson said the accused said what I have set out above, as the first statement. [ 49 ] Sergeant Stewart entered the room at 12:20 and the accused gave his first sample at 12:34 p.m. Stewart left after the first sample was provided. [ 50 ] Stewart testified that he had some casual conversation with the accused concerning his business, and the requirements of providing a sample, as one would expect any technician would do with any person in Mr. Franklin's situation.

Sergeant Stewart testified that he had known Mr. Franklin before meeting him on December 27th in a professional way, because Franklin used to operate a pet store in Maple Ridge, and he and his daughter had been customers of Mr. Franklin. Some of the time Stewart spent asking Mr. Franklin standard questions such as had he been injured in some way? As a result of some question he also learned Mr. Franklin had been on Seroquel medication for depression and was also using sleeping aids. Stewart said he learned as well all drugs were taken at night time, and that Mr.

Franklin had not yet taken anything. [ 51 ] Sergeant Stewart re-entered the breathalyzer room sometime before 1:02 a.m. when the second sample was given. It is unclear on the evidence how long he was with Mr. Franklin, but this was likely less than ten minutes as Constable Wilson testified he and Mr. Franklin were alone at 12:48 in the breathalyzer room. Stewart's overall impression of Mr. Franklin in the 40 minutes or so during part of which he dealt with him, and contrary to Constable Wilson's testimony, was that Franklin did not appear talkative and responded when he asked him things.

Some of their conversation, he said, was topical - whatever that means. He did not seem to be as outgoing as he recalled him to be when he knew him as a store owner. [ 52 ] Sergeant Stewart's evidence, taken alone, would not leave me with any sense at all that during the observation periods when the statements in issue were made by the accused, that the accused was talkative and engaged in very much discussion at all, pertinent to the matters that brought him there on December 26th. It would not leave me with any concern that important comments might have been made by Mr.

Franklin, including of an exculpatory nature, which were somehow omitted from Constable Wilson's notes, or escaped Sergeant Stewart's memory. [ 53 ] I return to Constable Wilson's evidence. He said at the detachment he recalled that Mr. Franklin was quite talkative, often starting a conversation himself. He gave extensive evidence on cross-examination relating to his interaction with Mr. Franklin. He agreed there was no audio recording made of any conversation they had. Not every bit of conversation they had on the evening in question was recorded in his notes.

He agreed it was fair to say he recorded in his notes what he believed was important to record. He admitted he had no note of when he first approached the driver's side of Mr. Franklin's car, of telling the accused who he was and the reason he was there. Throughout the evening while conversation was occurring, he agreed that if he determined that something in the conversation was relevant to the criminal proceedings, he would record it or portions of it. He said nonetheless he had numerous notes that were direct quotations from Mr.

Franklin. [ 54 ] I was not shown Constable Wilson's notes, so I am in no position having reviewed them to determine whether his note taking is deficient or not. He agreed he was trained to try to make notes in an impaired driving investigation of all important things that occurred during the investigation. This was part of his practice. He would try to make notes of things he believed were indicative of impaired symptomology. He could not recall Mr. Franklin slurring his speech in the Datamaster room. Going from memory he felt they had a fairly good conversation there.

He could not recall his exact conversation with Mr. Franklin at the scene, but it would have been about providing a breath sample. [ 55 ] On the way to the detachment, Constable McRae drove and had no discussion with Mr. Franklin. He agreed he and Mr. Franklin had discussion at the detachment about how long the accused might be at the detachment and whether he might be kept overnight, because he certainly intended and did give Mr. Franklin a ride home.

He agreed there would have been a discussion about the breath sample process and what was required there, and as well the promise to appear, and the necessity for court and that he intended to give him a ride home. [ 56 ] He was asked in cross-examination (at page 38, volume 2, line 17 through 31 of the April 26, 2010 transcript) the following question: Q I take it then [that] you would have explained to him that, provided that -- that he cooperates with the technician and that everything goes well there, that he would be released on a promise to appear and you would drive him home?

A And there would have been a discussion -- cooperates, I don't -- I'm not sure if that's -- we would have had a discussion about -- about the breath sample process and what was required there. Again, Corporal Stewart would have discussed with Mr. Franklin what

was required in providing breath samples as well. I would have spoken with Mr. Franklin about -- about the promise to appear and thenecessity for court and that I intended to give him a ride home. [57] He did not agree that he had offered to release the accused and drive him home if he cooperated. From time to time he admittedthat he had not made notes of things. For example, he had no note of Mr. Franklin having trouble getting in or out of the police cruiseron arrival at the detachment. He agreed if he had observed, for example, a balance problem, he would have made a note of it.

I find,based on my experience as a Provincial Court judge listening to many police officers testify in court, that it is not uncommon for policeofficers not to make a note of something that has not occurred. Generally when they are involved in investigations, I suspect they areoften too busy to note non-events. [58] Constable Wilson seemed to explain in his cross-examination that if he had no note, he did not observe something to be an issueor somehow relevant. By way of example, he agreed near the end of the evening if he had observed anything untoward about theaccused smoking, he would have noted it.

For this reason one might say a police officer's notes are incomplete because they do not setout non-events, or things that do not matter to the investigation at hand, potentially exculpatory things. However, where as here, theofficer essentially testified that no note means no concerns or problems were observed, I think any incompleteness of the notes issubstantially and innocently explained. [59] Wilson agreed that the times he had conversation with the accused it was all topical and responsive.

"Topical" according to theOxford dictionary can mean "of topics" or "dealing with especially current or local topics", and similar adjectives are suggested to be"contemporary, current, recent, timely, and up to date". It is unclear to me what Constable Wilson meant when he said Mr. Franklin'sconversation was topical. But the clear emphasis of his evidence was that Mr. Franklin was not this evening talking nonsense in anincomprehensible manner.

He agreed he made notes when he felt they were appropriate and, for example, during an observation periodin the Datamaster room, had looked to see if the accused's face was pale or flushed, and if present would make a note of these indicia. [60] Mr. Gunnell asked Constable Wilson about his practice recording conversations as follows, at page 49 to 50 of the abovetranscript: Q Now, in relation to the conversation that you recorded in your notebook after the period of time when you got back to thedetachment and until Mr.

Franklin was released, the conversations that you made note of are conversations that you felt might berelevant to this investigation; is that fair to say? A That's fair to say. Q And when -- when you're there during that time at the detachment and you're making notes in your notebook, when you hear Mr.Franklin say that you think -- or say something that think might be helpful in relation to -- to this prosecution, you make a note of it inyour notebook, correct? A Yes. Again I think that's a fair statement. You've asked that as well. Q Okay.

And I take it there -- there would have been lots of other things that were said that weren't necessarily recorded that youfelt may not be relevant to this matter? A Yes. [61] I note Constable Wilson was not asked to clarify what he understood was meant by the terms "relevant to this investigation" or"helpful in relation to this prosecution" or "relevant to this matter" as used by counsel in his questions in cross-examination. [62] For my part, I understood Constable Wilson to be telling me in his testimony that he essentially did basically three things in hisnote taking relating to Mr.

Franklin on the evening in question wherein he was engaged in an impaired driving investigation:

(1) He made notes of symptoms of potential impairment, for example, slurred speech.

(2) He did not make notes of non-events or things he did not observe and was plain to state this was so on a number of occasions.

(3) He did not make notes of things that Mr. Franklin said that seemed to him not to be relevant to his investigation. He gave noexample of such an unrecorded topic. [63] It would seem to me he was alluding to the type of chitchat that people often engage in to fill idle moments such as the state ofthe weather, the play of the Vancouver Canucks and so on. How could such a conversation, if it occurred, be relevant to theinvestigation that Constable Wilson was conducting? How could it seem important (see Richards para. 28)?

As in Richards, there is nosuggestion in this case that Constable Wilson intentionally edited his notes of the accused's statements in a way unfavourable to Mr.Franklin. [64] There is likewise no testimony before me to suggest that the accused said something materially of an exculpatory nature toWilson, which he has left out of his notes, or evidence given by him on the voir dire in person. Even though Constable Wilson was not aveteran police officer, based on evidence I have on this voir dire, I am not prepared to find that he did not understand his duty as a policeofficer during the investigation of Mr.

Franklin, which I think is akin to that as substantially explained by my brother Judge Woods in R.v. Sundberg, 2010 BCPC 171, at paragraph 10 in a slightly different context dealing with s. 254(3) of the Criminal Code as follows: [10] The officer is under a duty to assess the totality of the observations he or she makes - in the aggregate and not in isolation - includingany exculpatory evidence of which he or she is aware at the time the observations are made. It is a breach of that duty for an officer tofail to give due consideration to exculpatory observations unless those observations are unreliable.

Chartier v. Attorney General ofQuebec, (SCC), [1979] 2 S.C.R. 474, R. v. Todd, 2007 BCCA 176, and Johnston at para. 29.

[65] Mr. Gunnell suggested in argument when taking statements or making notes of statements, an officer is under a duty to record thegood and bad as it relates to his investigation. He certainly, in my view, is under no duty to record (1) everything or (2) irrelevant thingsor (3) non-events, which latter two categories, if absent from an officer's notes, should not without some evidence on the voir dire beequated to "bad" or "exculpatory" content or utterances. [66] The prosecutor's job in a criminal case is likewise explained in various legal authorities, including by Mr.

Justice Rand in R. v.Boucher, (SCC), 1955 S.C.R. 16 at pages 6 to 7 as follows: It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what theCrown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legalproof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly.

The role ofprosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be nonecharged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness andthe justness of judicial proceedings. [67] More recently in R. v. R.B.B., 2001 BCCA 14, Donald J. of our Court of Appeal quoted the above passage in Boucher and aswell a portion of Mr. Justice Taschereau's judgment therein at paragraph 8 of his reasons as follows: In my view there is substance in most of these objections.

I find it most regrettable that Crown counsel would jeopardize the validity ofthe trial, especially one of historical sexual assault involving so many complainants, when the standard of conduct expected of Crowncounsel is clear. Before I embark on a detailed discussion of the Crown address to the jury, I will set out the two most cited passagesfrom Boucher dealing with the special role of the prosecutor. At 267 Taschereau J. said [in translation]: The position held by counsel for the Crown is not that of a lawyer in civil litigation. His functions are quasi-judicial.

His duty is not somuch to obtain a conviction as to assist the judge and the jury in ensuring that the fullest possible justice is done. His conduct before theCourt must always be characterized by moderation and impartiality. He will have properly performed his duty and will be beyond allreproach if, eschewing any appeal to passion, and employing a dignified manner suited to his function, he presents the evidence to thejury without going beyond what it discloses. [68] What then is "helpful in relation to the prosecution" of an impaired driving charge?

Arguably the clear answer is any relevantfact be it of an inculpatory or exculpatory nature that would allow Crown counsel to fully discharge his or her duty as outlined above inpresenting the case fairly in court. Discussion and Conclusion [69] I find that the Crown has discharged the burden upon it in this voir dire and has established with proof beyond a reasonable doubtthat the three statements set out above were made freely and voluntarily by the accused, Mr. Franklin, as these principles are defined in,for example, the case of R. v.

Oickle, referred to above. [70] It is clear that throughout the evening in question Mr. Franklin was treated, I think fairly and humanely by the officers whoinvestigated this matter and interacted with him. [71] There is no evidence given by anyone on the voir dire that important relevant facts or exculpatory facts were left out of eitherConstable Wilson's notes or his testimony given on the voir dire that might have, if recorded, been of benefit to Mr. Franklin. Nor isthere any evidence offered by Constable Wilson or anyone else that he left out anything likewise of consequence or benefit to Mr.Franklin.

It would be sheer speculation on my part to find or even have as a basis for a reasonable doubt that some irrelevant discussionhe had with Mr. Franklin, including possibly a topical one which was not noted was also exculpatory, even in part, and in favour of theaccused. [72] I find, unlike Madam Justice Arnold-Bailey in R. v. Robertson, based on all the evidence I have heard and carefully reviewed intranscript form, that I have more than sufficient context for the statements in issue to find them to be voluntary, and I find them thereforeto be admissible.