Her Majesty the Queen - v. -, 2017 SKPC 69

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 69 Date: August 23, 2017 Information: 24164553 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Leslie R. Bracken Appearing: Matthew K. Miazga, Q.C. For the Crown Trent Forsyth For the Accused DECISION ON VOIR DIRE J. RYBCHUK, J INTRODUCTION [ 1 ] An important feature of this case is a determination of the extent to which a conservation officer must comply with the Canadian Charter of Rights and Freedoms [ Charter ] when enforcing compliance with The Environmental Management and Protection Act, 2010, c. E-10.22 [ EMPA ] of Saskatchewan. FACTS

[ 2 ] Robert Lidster is a conservation officer who was acting as an environment officer responsible for enforcing the provisions of EMPA and The Municipal Refuse Management Regulations , c. E-10.2 Reg 4 under it. He was familiar with the accused, Leslie Bracken, whom he knew to be licensed under The Municipal Refuse Management Regulations to haul and dispose of liquid domestic sewage. Officer Lidster had known Mr. Bracken for approximately ten years as they had previous dealings with each other. [ 3 ] On August 5, 2016 Officer Lidster was driving south on highway #35 outside of Nipawin when he encountered Mr.

Bracken travelling north on the same highway in his sewage disposal hauling truck. [ 4 ] After Mr. Bracken’s sewage truck passed him, Officer Lidster decided to turn around and follow the sewage truck north. It travelled north into Nipawin and then turned east off the highway and onto some land owned by Mr. Bracken. [ 5 ] The sewage truck travelled another 500 to 600 yards onto the land and stopped. Officer Lidster eventually caught up to the sewage truck and saw that Mr.

Bracken had it parked with the sewage tank hoisted up dumping what Officer Lidster believed to be a grey/blackish liquid sewage into a grassy area. [ 6 ] Officer Lidster drove his vehicle up and pulled around in front of Mr. Bracken’s sewage truck. He parked his vehicle parallel to the sewage truck so that the drivers’ side doors were opposite each other. Officer Lidster rolled his window down and could immediately smell sewage. He believed this to be a spot where previous sewage dumping had occurred.

It was within 1000 meters of a residential area in Nipawin. [ 7 ] Officer Lidster believed he had evidence of reasonable and probable grounds to lay a charge against Mr. Bracken, but he did not do anything to prevent Mr. Bracken from leaving either through his words, actions or conduct. [ 8 ] Officer Lidster proceeded to engage in a conversation with Mr. Bracken asking him questions to obtain evidence against him. He did this without informing Mr. Bracken he was under investigation or providing him with a cautionary warning or right to counsel under s. 10(

b) of the Charter . ISSUES [ 9 ] An omnibus hearing was held to determine on a voir dire the voluntariness of Mr. Bracken’s statements to Officer Lidster during their conversation as well as compliance with s. 10(

b) of the Charter . The Crown must first prove the voluntariness of a statement beyond a reasonable doubt whereas the accused must prove non-compliance with s. 10(

b) on a balance of probabilities. This is how I conducted my analysis but, for the purposes of convenience in this written decision only, I will discuss these issues in reverse order as there is interplay between them and some of my legal determinations under s. 10(

b) apply to voluntariness as well. ANALYSIS 1. Whether there was a violation of s. 10(

b) of the Charter ? [ 10 ]

Section 10(

b) of the Charter provides that: [10] Everyone has the right on arrest or detention ... (

b) to retain and instruct counsel without delay and to be informed of that right;

[11] Section 32(1)(

b) of the Charter states that it applies “to the legislature and government of each province in respect of allmatters within the authority of the legislature of each province.” EMPA is legislation enacted within the authority of the legislature orgovernment of the province of Saskatchewan and is therefore, subject to Charter scrutiny. [12] Under s. 74 of EMPA, environment officers are appointed for the purpose of enforcing or overseeing the enforcement of EMPA. Therefore, an environment officer is an agent of the state performing the functions of government.

This means that Officer Lidster’s activities can attract Charter scrutiny (see: R v Buhay, 2003 SCC 30, [2003] 1 SCR 631; Eldridge v British Columbia (Attorney General), (SCC), [1997] 3 SCR 624 (SCC)). [13] However, EMPA also extends certain powers and privileges to conservation officers that police officers do not have andordinarily would offend Charter rights if they were performed by police officers in the ordinary course of their duties. For example,when performing the duties of an environment officer under EMPA, Officer Lidster had the authority under subsections 78(1) and (4) ofEMPA to enter onto Mr.

Bracken’s private land without a warrant for the purpose of carrying out his duties in conjunction with an auditor investigation, including the inspection of the regulated activity of sewage hauling. [14] There is also ample case law in Canada that has held the Charter has limited application in cases involving the enforcement ofregulatory matters or activities that accused persons choose to voluntarily participate in and that by their nature are subject to governmentregulation. (see: R v Parker, 2010 BCSC 919 (enforcement of Liquor Act); R v Diep, 2005 ABCA 54 [Diep] (enforcement of ABFisheries Act); R v Fitzpatrick, (SCC), [1995] 4 SCR 154 [Fitzpatrick] (Enforcement of BC Fisheries Act); R v Jarvis,2002 SCC 73, [2002] 3 SCR 757 [Jarvis] (enforcement of Income Tax Act). [15] Fitzpatrick and Jarvis are the leading decisions from the Supreme Court of Canada that have held the Charter is not to be asrigidly applied to regulatory or administrative offences as it is to criminal offences (see: Fitzpatrick at para. 54; Jarvis at paras. 59-62).

Fitzpatrick, Jarvis and Diep all dealt with ss. 7 and 8 of the Charter, but their reasoning is equally applicable to s. 10(

b) of the Charter. [16] R v Rice, 2009 BCCA 569 [Rice] and Parker both dealt specifically with the application of s.10(

b) of the Charter toindividuals charged with regulatory offences. In Rice, the accused was required under subsections 95(1) and (2) of the B.C. Wildlife Actand s. 16.1 of the Hunting Regulation to provide information and answer questions requested by a conservation officer about wilfdlife. These obligations were imposed upon hunters as part of their voluntary participation in the regulated activity of hunting. The accusedhunter was aware of the fact he may be detained under s. 95 for hunter check and must be taken to have consented to such process by hisparticipation in the licensed activity.

The British Columbia Court of Appeal concluded that even in these statutorily compelledcircumstances, if a detention had occurred it did not engage the Charter, at paras. 72 and 73: [72] The interaction between the conservation officer and Mr. Rice and his fellow passengers could be construed as a “detention” as that term is used in R. v. Suberu, 2009 SCC 33, 309 D.L.R. (4th) 114 (S.C.C.), because of the mandatory nature of s. 95. But this kind ofdetention does not in my view engage the same Charter ramifications, as a detention would, in the course of a criminal investigation.

Toconclude otherwise would ignore the context in which a hunter check is conducted. A conservation officer is authorized to stop a hunterand obtain information about wildlife in the hunter’s possession (s. 95). Application of the four part Fitzpatrick test to the s. 10(b)analysis leads me to the same conclusions for the same reasons as I reached in the s. 7 analysis. A s. 95 detention, if it could be socalled, does not engage s. 10(b). To conclude otherwise would entail conservation officers extending a warning and the right to counselat all hunter checks. I conclude that Mr. Rice’ s. 10(

b) rights were not engaged during the hunter check. [73] My conclusions are not inconsistent with a finding that the conservation officer did have reasonable and probable grounds tosuspect an offence had been committed. For, as noted in Jarvis at paras. 85, 89-90, and 93-94, reasonable and probable grounds are onlyone factor to consider in an overall contextual analysis. [17] The British Columbia Supreme Court came to the same conclusion in Parker dealing with the B.C. Liquor Act, at para. 41: [41] Given that Rice and the instant case of Mr.

Parker are both involved in regulatory matters, although the former addresses wildlifeand the latter liquor, there appears overall to be little to choose between the regulatory methods found in the two statutes. I conclude thatas the Court of Appeal has found that the enforcement of the Wildlife Act does not engage an individual’s s. 10(

b) Charter rights, I amled to a similar conclusion with respect to Mr. Parker’s s. 10(

b) rights, or lack thereof, when faced with an investigation pursuant to theLiquor Act. Although the charge against Mr. Parker involves the possession of a prohibited substance, ecstasy, at the time of Mr.

Parker’s detention, the investigation involved solely liquor, not drugs. The latter offence involving drugs was criminal in nature, not regulatory, and would indeed have engaged Mr. Parker’s s. 10(

b) rights. [ 18 ] Sections 95(1) and (2) of the B.C. Wildlife Act are not dissimilar in combined effect to ss. 78, 80, 82(

a) and (

b) and 84(1)(

a) and (

b) of the Saskatchewan EMPA. There is no practical distinction between a person being required to “comply” with a “request” under EMPA or “answer” a “question” under the B.C. Wildlife Act when providing information to a conservation officer under either regulatory scheme. Put another way, there appears to be little to choose between the regulatory methods found in EMPA and the regulatory methods found in the B.C. Wildlife Act or indeed, all the other various regulatory statutes contained in the decisions I have cited above. [ 19 ] Mr.

Bracken chose to voluntarily participate in the highly regulated activity of sewage hauling and disposal in Saskatchewan. He must be taken to have been aware and consented to all of the obligations and processes imposed upon him as part of this licensed business activity and regulatory scheme. I therefore, conclude that s. 10(

b) of the Charter was not engaged and Officer Lidster was not required to advise Mr. Bracken of his right to counsel when he rolled down his car window and began speaking to Mr. Bracken and requesting information of him at the sewage dumpage site. [ 20 ] Mr. Bracken did not testify on the voir dire . He has not demonstrated to me on a balance of probabilities that his s. 10(

b) Charter right was engaged or breached in the circumstances of this case. [ 21 ] Even if Mr. Bracken was not statutorily compelled to answer Officer Lidster’s questions, I would have held that he was not detained, either physically or psychologically, as his sewage truck was already stopped and he remained free to come and go from his property as he chose throughout. If I am wrong on that front and there was a breach of s. 10(b), I would not have excluded the statements because:

(1) It was not a flagrant or serious breach and Officer Lidster could understandably be mistaken in thinking constitutional protections were reduced in this regulatory environment;

(2) The impact on Mr. Bracken was not severe as it was a relatively short, simple and cordial conversation while stopped and dumping sewage anyway, and the evidence could have been discovered in other ways; and

(3) The statements are reliable and society has a significant interest in environmental protection and ensuring a case of the disposal of sewage in a manner dangerous to public health is adjudicated on its merits. [ 22 ] I therefore, conclude that the admission of this conversation into evidence would not bring the administration of justice into disrepute. 2.

Whether the accused made the statements voluntarily? [ 23 ] The “ultimate question” of the voluntariness of an accused’s statement to a person in authority is whether the accused “exercised free will by choosing to make a statement” ( R v Singh, (2007) 225 CCC (3d) 103, 2007 SCC 48 . This analysis involves a consideration of the confessions rule. The leading case on the common law confessions rule is R v Oickle , 2000 SCC 38 , [2000] 2 SCR 3 [ Oickle ].

In that case, Iacobucci J. summarized the confessions rule as follows, at para. 47: [47] The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances 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. [ 24 ] Iacobucci J. identified four areas of concern commonly arising out of the confessions rule: (

a) threats or promises;

(

b) oppression; (

c) other police trickery; and (

d) operating mind. [25] Mr. Bracken does not really take issue with the first three categories and argues that the Crown failed to prove that thestatements were voluntary on the basis that Mr.

Bracken did not have an operating mind at the time. [26] This aspect of the confessions rule was referred to in R v Whittle, (SCC), [1994] 2 SCR 914, where SopinkaJ., considering a prior decision of the Supreme Court of Canada in R v Clarkson, (SCC), [1986] 1 SCR 383, stated atparas. 41 and 46: [41] McIntyre J., concurred in by Chouinard J., was of the view that a limited form of awareness of the consequences was subsumed inthe operating mind test. At p. 399, he set out the test with respect to admissibility of a confession by a person in a state of intoxication: 1.

Was the accused aware of what she was saying? and 2. Was she aware of the consequences of making the statement on the particular occasion in question? To be aware of the consequences in this context simply means to be capable of understanding that her statement could be used inevidence in proceedings to be taken against her. There is no novelty in this approach. It is consistent with the familiar and customarywarning derived from the English judges’ rules which was to the effect that “you may remain silent but anything you say will be takendown in writing and may be given in evidence”.

This warning was designed to insure knowledge of the consequences of the statement,that is, its possible use in proceedings against the accused. It must be observed that common sense would dictate that a very high degreeof intoxication would be required to render such a statement inadmissible. [46] The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he orshe is saying and to comprehend that the evidence may be used in proceedings against the accused.

Indeed it would be hard to imaginewhat an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make anactive choice, the relevant test is: Did the accused possess an operating mind?

It goes no further and no inquiry is necessary as towhether the accused is capable of making a good or wise choice or one that is in his or her interest. [27] In Oickle, Iacobucci J. described the “operating mind” requirement at para. 63: [63] This Court recently addressed this aspect of the confessions rule in Whittle, supra, and I need not repeat that exercise here. Brieflystated, Sopinka J. explained that the operating mind requirement “does not imply a higher degree of awareness than knowledge of whatthe accused is saying and that he is saying it to police officers who can use it to his detriment” (p. 936).

I agree, and would simply addthat, like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of theconfessions rule. Indeed, in his reasons in Horvath, supra, at p. 408, Spence J. perceived the operating mind doctrine as but oneapplication of the broader principle of voluntariness: statements are inadmissible if they are “not voluntary in the ordinary English senseof the word because they were induced by other circumstances such as existed in the present case”. [28] Mr.

Bracken submits that he was not of an operating mind as he was not advised of his right to counsel or permitted to speakto counsel. He also argues that he had not been told the reasons for his detention, nor had he been cautioned. As already determined inmy analysis of the first issue the Charter was not engaged and there was no obligation on Officer Lidster to inform or provide Mr.Bracken with a right to counsel under s. 10(b). Furthermore, Mr. Bracken was not stopped, arrested or detained by Officer Lidster and ittherefore, was not necessary for him to give any reasons to Mr.

Bracken either. [29] There also was no legal requirement to give a caution or warning to Mr. Bracken. The presence or absence of such a cautionor warning is but one factor for a court to take into account in making the determination of whether a statement is voluntary. This issuewas addressed by the Supreme Court of Canada in Boudreau v The King, (SCC), [1949] SCR 262, at para. 18: [18] … The fundamental question is whether a confession of an accused offered in evidence is voluntary.

The mere fact that a warningwas given is not necessarily decisive in favour of admissibility but, on the other hand, the absence of a warning should not bind the handsof the Court so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon their reviewthe Court is not satisfied of the voluntary nature of the admission, the statement will be rejected. Accordingly, the presence or absence

of a warning will be a factor and, in many cases, an important one. [30] Therefore, the lack of caution in a regulatory matter such as this does not automatically make the statement inadmissible.

Theissue of a lack of a caution being given to a person being questioned was also recently considered by the Ontario Court of Appeal in R vBottineau, 2011 ONCA 194 (which was cited with approval in R v Pearson, 2017 ONCA 389) at para. 86: [86] While acknowledging that there is no inflexible rule that if a suspect is not cautioned appropriately his or her statement isautomatically involuntary in law, counsel argues that the trial judge failed make any finding whether Kidman was a “suspect” or merelya “person of interest” in his analysis of voluntariness and erroneously proceeded on the basis that Kidman fell into the latter category. [87] Again, we would not interfere with the trial judge’s decision to admit the statement. [88] We do not think much turns, in these circumstances, on whether Kidman was a “suspect” or someone more benignly viewed bythe police.

Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntarinessanalysis ̶ just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary.

As the trialjudge noted, “[h]ard and fast rules are incapable of accounting for the myriad circumstances that may vitiate voluntariness,” and all thecircumstances must be scrutinized carefully: see R. v Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 (S.C.C.), at paras. 47 and 71. [31] R v Rutley, 2004 SKPC 44 is a Saskatchewan decision where two conservation officers entered onto private land to investigatea complaint of hunting on posted land in violation of a regulatory offence under the Saskatchewan Wildlife Act.

In that case, JudgeHalderman found that despite the lack of either a caution or Charter rights the statement of the accused was voluntary. He stated atparas. 12-14: [12] I propose to deal firstly with the issue of voluntariness. There is no question on the evidence here that no rights to counsel weregiven, but that is not fatal to the issue of voluntariness. Both officers testified that at Mitchell’s, and at the kill site, no promises northreats were made by them. There was nothing in the cross-examination of the officers which cast doubt on this evidence. Thequestioning took place on private property.

There is no suggestion whatever that the officers were requested to leave, that the accusedwere dealt with in an oppressive fashion, or that the accused were intimidated by the officers in any fashion. [13] . . . In my view, however, the failure to tape record at the preliminary stages of Wildlife Act investigations is not necessarily on apar with the failure to tape record when police officers are investigating charges with serious penal consequences such as those in R. v.

Oickle (2000) 2000 SCC 38 , 36 C.R. (5th) 129 (S.C.C.). [14] There is not anything in the evidence on the voir dire which causes me to doubt the voluntariness of what was said at Mitchell’sand at the kill site, and I rule the conversations voluntary. [32] The circumstances of this case are that a conservation officer was investigating regulatory or administrative compliance withEMPA in the commercial sceptic sewage hauling and disposal business. I do not believe much turns on whether Officer Lidsterreasonably suspected or believed Mr. Bracken was committing an offence.

This is but one factor in the entire contextual analysis of thecircumstances surrounding the statements made by Mr. Bracken to determine if they were voluntary. [33] The same analysis applies to Mr. Bracken’s statements being statutorily compelled. Statements made under compulsion ofstatute are not by that reason alone rendered inadmissible in criminal proceedings (Fitzpatrick). Here we are dealing with regulatoryproceedings only. [34] It was clear from the evidence and their prior history together that Mr.

Bracken was well aware he was speaking toConservation Officer Lidster who was responsible for enforcing compliance with the regulations relating to the hauling of sewage. There is nothing in the evidence to suggest that there was anything inappropriate in this brief conversation. [35] Mr. Bracken failed to take the stand so there is only the uncontradicted evidence of Officer Lidster on the issue ofvoluntariness. Officer Lidster testified as to the nature of the circumstances in which the conversation took place, its short duration andthe type of questions and answers that it contained.

Nothing in the content of the conversation or the conduct of the Crown witnessprovides any foundation to suggest that there were any promises made, threats uttered or inducements offered which resulted in the

statements being made by Mr. Bracken. [ 36 ] It was a simple, straightforward conversation between two individuals who had known each other for approximately a decade. There can be no doubt that Officer Lidster was acting as a person in authority in his capacity as a conservation officer that day. The conversation took place during normal business hours shortly after 2:00 p.m. on a Friday afternoon. [ 37 ] Officer Lidster had previous dealings with Mr. Bracken in his capacity as an environment officer regulating Mr.

Bracken’s liquid sewage disposal business under The Municipal Refuse Management Regulations of EMPA . Officer Lidster had lived in Nipawin since 1988 and been responsible for inspecting people in the business of hauling sewage in and around that community since 1998. Officer Lidster had issued Mr. Bracken his sewage disposal licenses. [ 38 ] Officer Lidster was in street clothes driving an unmarked government vehicle with red and blue lights on the dash or grill, but they were not engaged. Officer Lidster never told Mr. Bracken that he had to speak to him or that he did not have to speak to him.

He also never told him he had to stay there and talk with him. [ 39 ] Officer Lidster testified that he spoke in a normal tone of voice. Mr. Bracken was not angry and did not ask Officer Lidster what he was doing there. [ 40 ] Officer Lidster testified that he engaged in the conversation with Mr. Bracken because he wanted to give him an opportunity to provide an explanation and to verify or get confirmation that what he saw being dumped was indeed sewage. [ 41 ] The conversation took place on Mr. Bracken’s own private property. There was no evidence Mr.

Bracken ever asked to speak to legal counsel or that he asked Officer Lidster to leave. There was no evidence Mr. Bracken was intimidated by Officer Lidster in any fashion. [ 42 ] There was no evidence from which I could reasonably conclude there was any oppression, violence, trickery or use of non- existent evidence by Officer Lidster on this day or any other day Mr. Bracken had dealings with him. [ 43 ] In all of these circumstances, I find the Crown has proven beyond a reasonable doubt that Mr. Bracken had an operating mind and the statements he made were voluntary.

The conversation will be admitted into evidence in the trial proper of this matter. _________________ J. Rybchuk, J