R v Low Horn Jr., 2023 ABCJ 121

In the Alberta Court of Justice Citation: R v Low Horn Jr., 2023 ABCJ 121 Date: 20230529 Docket: 220665319P1 Registry: Lethbridge Between: His Majesty the King - and - Paul Terrance Low Horn Jr. Ruling on Voir Dire by the Honourable Justice P.G. Pharo Introduction [1] The issue in this case is whether a statement taken by Constable Payne from the accused Mr. Low Horn was givenvoluntarily, and is therefore admissible in the trial, where Mr. Low Horn faces one count of public mischief, contrary to s140(1)(

a) of theCriminal Code. [2] In cases such as this, the Supreme Court of Canada, in the leading case of R v Oickle, (2000), 2000 SCC 38 , 147CCC (3d) 321 (Oickle) stated that there must be a contextual approach to balance the twin goals of respecting the rights of accusedpersons, without unduly limiting society’s need to investigate and solve crimes: see para 33. [3] This issue was heard in a voir dire hearing, which has the purpose of determining whether the statement should be admittedas evidence at the trial.

That issue turns on the question of whether there is a reasonable doubt raised about the voluntariness of thestatement. Factual Background and Context of the Statement [4] As noted in Oickle, the context in which the statement is given is important. [5] The court heard evidence at the voir dire from two witnesses, Mr. Low Horn and Constable Payne.

[ 6 ] The evidence at the voir dire was that Mr. Low Horn was an aboriginal man who lived in the Cardston area. He had no home of his own, often staying with his mother. He was unemployed, and without many financial resources. The evidence was that he had been addicted to substances for a number of years and was a frequent user of meth and fentanyl. Mr. Low Horn testified that he had been in jail before, and he said that on one occasion when he went into custody he had already been taking naloxone, and so he was allowed to continue it in jail.

He said that on another occasion when he had gone into jail and had not been on naloxone, it took about five days before he could see a doctor, then get the results of a blood test, before he was given naloxone. In other words, during those five days, he had suffered withdrawal symptoms, or was what he called “dope sick”. [ 7 ] Constable Payne testified that at the time of this incident, he had been with the Cardston detachment for about four and one- half years. This was his first deployment after finishing training at depot. Constable Payne testified that at the time he had a history with Mr.

Low Horn, so had a relationship with him because of previous dealings, mostly minor offences. Constable Payne said some of these interactions had been positive and some were negative, but in the main he found that Mr. Low Horn had been cooperative. However, Constable Payne said that sometimes Mr. Low Horn had run from police on foot when he did not want to be taken into custody. Constable Payne acknowledged that at the time he knew that Mr. Low Horn was an addict with a substance abuse problem, mainly consuming meth and fentanyl. Constable Payne said that Mr.

Low Horn was mostly involved with low level crime to get money for drugs. [ 8 ] The underlying problem that gave rise to this charge of public mischief was that Mr. Low Horn had been arrested with some drugs in June 2022, and when asked by police who supplied the drugs, he said he got them from MT. Constable Payne then did all the work to get a search warrant for MT’s residence, and a search warrant was executed. There was no evidence of drug trafficking found at MT’s place. Consequently, Constable Payne started an investigation of Mr. Low Horn for public mischief.

Because of that investigation, Constable Payne testified that he was on patrol in his police cruiser in Cardston on the date of this incident, being July 10, 2022, and was on the lookout for Mr. Low Horn. [ 9 ] On the same day, Mr. Low Horn said he and his girlfriend at the time, RC, were walking down the street in Cardston, when they were approached by Constable Payne, who was in his police cruiser. Mr. Low Horn testified that he was a drug addict, but that they had not used any drugs since about 9:00 p.m. the night before. He testified that they got up that morning and had gone out and purchased some fentanyl.

At the time he was stopped by Constable Payne at about 9:00 a.m. that morning, they were on their way to go some place where they could take the drugs. Mr. Low Horn testified that at the time he was stopped by Constable Payne, he was feeling dope sick because he had not consumed any drugs since 9:00 p.m. the night before. Circumstances Surrounding Giving the Statement [ 10 ] Constable Payne testified that he was patrolling in his police cruiser in Cardston, when he saw Mr. Low Horn walking down the street. Constable Payne said he pulled over and got out of his vehicle to talk to Mr. Low Horn.

Constable Payne turned on the recording device on his police cruiser. It appears that not all of the conversation was recorded, but some of the discussion before the statement was taken was recorded, while Constable Payne and Mr. Low Horn were talking outside the cruiser, which recording was entered as Exhibit V-1. [ 11 ] Part of the discussion between Constable Payne and Mr. Low Horn recorded while they were outside the vehicle before the statement was taken is as follows: Constable Payne: Do you want to go to jail? Mr. Low Horn: No. Constable Payne: Then there you go.

Then tell me you do not want to go to jail, Paul. Mr. Low Horn: No. Constable Payne: You don’t want to go to jail? Mr. Low Horn: No. Constable Payne: Okay. So let’s do this. I’ll release you on a piece of paper, but I want to get a statement from you, and I want to know the actual reason you wanted to get MT into trouble. Because I talked to her and I know. I just want to hear it from you. And we can do all that sitting right here. Okay. I’ll park a ways away behind those bushes so nobody sees us. [ 12 ] Constable Payne then arrested Mr. Low Horn for public mischief. Mr.

Low Horn got in the back of the police cruiser. Constable Payne then read Mr. Low Horn his Charter rights to counsel. Mr. Low Horn declined to contact counsel. Constable Payne also gave him the police caution, saying Mr. Low Horn did not have to give a statement. They then departed in the police cruiser on a brief detour to look for Mr. Low Horn’s bicycle and then went to the parking lot of the RCMP detachment in Cardston. Mr. Low Horn gave Constable Payne the statement, while in the back of the police cruiser. [ 13 ] Mr. Low Horn testified about the reasons he gave the statement as follows: Q. Okay.

Can you tell us about the effect on your body of not consuming between about 9 PM the night before and the condition you were in at 9 almost 9:30 the next morning? A. Well it was hard to even make it there, you know and walking up the hill when he came up to us to pull us over I was pretty dope sick and like when he asked me the questions I just went through with - through with it because I wanted just to leave and go smoke. ....

Q. Into the police car, what - what was your condition physically? How were you feeling when the officer took you into thatvehicle? A. Well, really dope sick I guess, yeah, like really bad, I guess, and when he said to me he’s going to release me and my mind wasset for that, I guess, and so, yeah. Q. Okay. What was your major concern at - at the time you were put in the back of his police car? A. Going to gaol. Q. Can you tell me what that would be like? What - what you were worried about happening if you didn’t get released to be able toconsume your drugs? A.

Well to be honest like in the stage I was in, like I felt like I was going to you know die, cause I depended on the drug. ... Q. Okay. And can you tell us about what your understanding was of what he told you. You heard the re - recording when he said,”Do you want to go to gaol?” What was going through your mind when you heard that? A. I just didn’t want to go to gaol. I don’t like gaol and yeah. Q. And in terms of -- you didn’t -- you responded, no, when he asked you whether you wanted to contact a lawyer, why is that? A. Because he already offered to release me. [14] I accept the evidence of Mr.

Low Horn that at the time of the incident when he gave the statement, he was very dope sick. The Law on Voluntariness of Statements [15] The Crown bears the burden of proving, beyond a reasonable doubt, that an individual's statement to a "person in authority"was made voluntarily.

An accused bears no burden, evidentiary or otherwise, of providing a foundation for the voluntariness inquiry: R vLavallee, 2018 ABCA 328 at para 25. [16] In the Oickle case the Supreme Court summarized the law as follows: The Contemporary Confessions Rule 47 The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is withvoluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. Theapplication of the rule will by necessity be contextual.

Hard and fast rules simply cannot account for the variety of circumstances thatvitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judgeshould therefore consider all the relevant factors when reviewing a confession. (a)Threats or Promises 48 This is of course the core of the confessions rule from Ibrahim, supra. It is therefore important to define precisely what types ofthreats or promises will raise a reasonable doubt as to the voluntariness of a confession.

While obviously imminent threats of torture willrender a confession inadmissible, most cases will not be so clear. 49 As noted above, in Ibrahim the Privy Council ruled that statements would be inadmissible if they were the result of "fear of prejudiceor hope of advantage". The classic "hope of advantage" is the prospect of leniency from the Courts. It is improper for a person inauthority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses. ...

An explicit offer by the police to procure lenient treatment in return for a confession is clearly a very strong inducement and will warrantexclusion in all but exceptional circumstances. 57 In

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

This becomes improper only when the inducements, whether standing alone or incombination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. ...The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in theform of a threat or a promise. [17] The focus is on the conduct of the police and its effect on the suspect's ability to exercise his or her free will. The test is anobjective one.

However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test:R v Singh, 2007 SCC 48 , [2007] 3 SCR 405. [18] In the R v Spencer (2007), 2007 SCC 11 , 217 CCC (3d) 353 (Spencer) case the facts were that Mr. Spencer wascharged with 18 robberies in British Columbia. He was arrested. His girlfriend, Ms. Harrison was also arrested the next day in relation toone of the robberies. Mr. Spencer gave statements to the police, in a lengthy interview. During this interview, Mr. Spencer tried to obtain

more lenient treatment for Ms. Harrison. The other issue was concerning a visit with Ms. Harrison which he requested. Mr. Spencer confessed to some of the robberies, then was allowed a visit with Ms. Harrison. After the visit, he confessed to the other robberies. At trial, Mr. Spencer argued that the confessions were not voluntary, and should not be admissible. The trial judge admitted them as voluntary. The trial judge did not find that a promise of leniency for Ms. Harrison was ever made by the police, although Mr. Spencer asked for one.

The trial judge was not convinced that the offer of a visit was strong enough to sway Mr. Spencer to make the initial confession. He was convicted of the 18 robberies. The Supreme Court of Canada agreed with the trial judge that the statements were voluntary and admissible. Justice Deschamps ruled as follows: While Iacobucci J. recognized in Oickle that the existence of a quid pro quo is the "most important consideration" when an inducement is alleged to have been offered by a person in authority, he did not hold it to be an exclusive factor, or one determinative of voluntariness .

On the contrary, the test laid down in Oickle is "sensitive to the particularities of the individual suspect" (para. 42), and its application "will by necessity be contextual" (para. 47). Furthermore, Oickle does not state that any quid pro quo held out by a person in authority, regardless of its significance, will necessarily render a statement by an accused involuntary. For example, an offer of psychiatric or psychological assistance, although "clearly an inducement, ... is not as strong as an offer of leniency and regard must be had to the entirety of the circumstances" (para. 50).

Inducements "becom[e] improper only when ... standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne." [ 19 ] In a case from the Quebec Court of Appeal, R v Otis , [2000] QJ No. 4320 ( Otis ) Mr. Otis was accused of murdering a three- year-old girl. The evidence against him included a video recording of him making a confession. During the interrogation, on four occasions he said he wanted to end the interview and talk to his lawyer again, but the police persisted.

The Court of Appeal held that while police are entitled to attempt to persuade a suspect to speak, they may not abuse and deny his right to silence. The Court held that the videotape should be excluded from evidence. Justice Proulx adopted the statement of Justice Fish, and stated at paragraph 53: Detention until confession is an unacceptable form of persuasion. [ 20 ] Justice Proulx wrote in Otis at para 54 that: The analysis of the dynamics existing between the investigator and the subject must always be reviewed on a case-by-case basis.

What is abusive in the present matter might not be with respect to another individual. The power of resistance to police persuasion will vary according to circumstances and individuals. [ 21 ] Many cases on involuntary statements refer to situations where the accused’s will is overborne by oppression. A statement may be involuntary, even if no inducements were made, if the circumstances imposed on an accused were sufficiently onerous to have deprived him or her of the ability to make an independent decision to talk to the police: Oickle at para 60 .

Again, the issue is whether the will of the individual was overborne. Mere discomfort, privation, or pressure will not necessarily, by themselves, raise a doubt as to voluntariness. [ 22 ] The Crown referred to the case of R v Leskosky , 2020 ABQB 129 ( Leskosky ). In that case the accused was suspected of committing multiple crimes on the internet. A number of police officers came to his home. He gave several interviews, which were tendered as evidence at the trial. Mr. Leskosky argued the police had made inducements to him. The Court found that Mr. Leskosky did experience fear.

That fear, however, did not by itself, provide a foundation for a doubt about whether his statements during the interview were voluntary. His fear was a natural emotional reaction to the reality that he knew he faced and was not caused by oppression or state conduct. The Court held that Mr. Leskosky accurately characterized his own position as being caught in a corner and was desperately trying to talk his way out. Mr. Leskosky attempted to speak, to negotiate, to get out from under what he knew was the death of his dreams. His words were his own. The Court held that his statements were voluntary.

The Court went on to say at para 36: Whether or not oppression occurred depends on all of the circumstances, on context. Analysis of the Context of the Statement [ 23 ] The case law makes it clear that the context of the surrounding circumstances is very important in making a decision as to whether a statement is voluntary. As noted already, the test laid down in Oickle is "sensitive to the particularities of the individual suspect" (para 42), and its application "will by necessity be contextual" (para 47). [ 24 ] On the one side of the context equation, the Court must look at the particularities of Mr. Low Horn.

The relevant context here is that Constable Payne is acquainted with Mr. Low Horn and knows that he is a drug addict. Constable Payne testified that he was aware that “dope sick” means that an addict is going through a type of drug withdrawal, and they feel ill. When he arrested Mr. Low Horn that morning, Constable Payne testified that he felt Mr. Low Horn looked exhausted and tired but did not feel he was under the influence of any controlled substance. [ 25 ] The evidence was that at the time of the arrest, at about 9:00 a.m., Mr.

Low Horn and his girlfriend were on their way to consume some fentanyl, which they had just purchased from a local dealer. Mr. Low Horn had not consumed any drugs since about 9:00 p.m. the previous evening, when he had consumed some meth and a little fentanyl. At the time he was arrested, Mr. Low Horn testified that he was really dope sick. Mr. Low Horn testified at that point that he was concerned about being dope sick and having to go to jail, where it might take up to five days to be assessed and placed on suboxone.

He said that at the stage he was in, if he was not released that day, he felt like he would die, because he was so dependant on the drug. After he was released on that day, he testified that he found RC, who had the drugs, and they proceeded to consume the drugs. [ 26 ] On the other side of the context equation, the Court must look at the conduct of Constable Payne to see if he made an inducement, being a threat or promise, or engaged in conduct that could be considered to be oppressive. Again, this is an objective assessment, but it must also be contextual.

[ 27 ] The evidence was that when Constable Payne saw Mr. Low Horn walking on the sidewalk, Constable Payne stopped his police cruiser, got out and addressed Mr. Low Horn by saying: “Do you want to go to jail?”. In that context, that is coming from a uniformed policeman who had just stopped his police cruiser and approached him on foot, it would be reasonable for Mr. Low Horn to interpret that statement to be a threat that he would be taken into custody. Since Constable Payne then repeated it, Mr. Low Horn would have to know that it was more than a casual inquiry. It would be reasonable for Mr.

Low Horn to believe that Constable Payne was threatening to put him in jail. [ 28 ] Constable Payne then immediately followed that exchange with the following statement: “Okay. So let’s do this. I’ll release you on a piece of paper, but I want to get a statement from you, and I want to know the actual reason you wanted to get MT into trouble.” In my view, the only reasonable way to interpret that statement is that Constable Payne will release Mr. Low Horn if Mr. Low Horn gives him a confession to the mischief charge.

Considering the totality of this exchange in context, it seems to me that the only reasonable way to interpret it is to say that Constable Payne was threatening to take Mr. Low Horn to jail unless he gave him a confession. [ 29 ] A further important contextual factor is that Constable Payne was acquainted with Mr. Low Horn, and knew he was a drug addict. Oickle makes it clear that the Court must be sensitive to the particularities of the individual suspect. Mr. Low Horn testified that he was a drug addict and was really dope sick that day.

Constable Payne testified that he knew what dope sick was, and he also testified that Mr. Low Horn looked exhausted and tired that day, but not under the influence. Did Constable Payne actually know that Mr. Low Horn was dope sick? There was no evidence of that. It would be difficult to impute the actual knowledge that Mr. Low Horn was dope sick to Constable Payne. [ 30 ] I believe there is another relevant contextual factor in play here, which relates to the nature and seriousness of the charges. In the Oickle case, the accused was charged with setting a series of eight fires.

In Spencer , the accused was charged with committing eighteen robberies. In Otis , the charge was murder. In Leskosky , the charges were multiple internet crimes. These cases all involve very serious offences that attract substantial jail terms if there is a conviction. However, in this case, the charge involved is that of public mischief. It is impossible at this point to determine what kind of jeopardy Mr. Low Horn would face for that charge if convicted.

The sentence he would receive if convicted would depend on a multitude of factors, such as his criminal record, whether Gladue factors apply, or whether he entered a guilty plea, just to name a few. However, in my view it is entirely possible that he would not get a jail sentence at all. In fact, Constable Payne seemed to share that view.

This is what he said about that issue in his testimony: I honestly don’t believe in the way that I’ve seen in the last four and a half years of files going through that he would have probably served a day in gaol for a conviction of public mischief. [ 31 ] Therefore, the concern in this context is that Constable Payne threatened Mr.

Low Horn with going to jail, when it is not clear that he would end up with a jail sentence on this charge of public mischief even if he was convicted. [ 32 ] As noted above, Oickle does not state that any quid pro quo held out by a person in authority, regardless of its significance, will necessarily render a statement by an accused involuntary.

Inducements become improper only when standing alone or in combination with other factors, they are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. [ 33 ] In the context of this case, I am left with a reasonable doubt about whether the will of Mr. Low Horn was overborne by the combination of the threat to put him in jail, then the promise to release him immediately, after he gave a statement, given my finding that he was very dope sick. I find this because of the combination of the following factors: 1. Constable Payne was well acquainted with Mr.

Low Horn at the time of this incident and knew that Mr. Low Horn was a drug addict. Constable Payne testified that he knew drug addicts get dope sick, or suffer from withdrawal, if they do not consume their drugs regularly. 2. Constable Payne threatened to put Mr. Low Horn in jail, for a mischief charge, when he knew it was at least possible, or even likely, that Mr. Low Horn would not receive a jail sentence for that charge even if convicted. 3. Constable Payne followed the above threat with a promise to release Mr. Low Horn immediately, but only if Mr. Low Horn gave a confession. 4.

In paragraph 49 of Oickle, the Court said: An explicit offer by the police to procure lenient treatment in return for a confession is clearly a very strong inducement and will warrant exclusion in all but exceptional circumstances. In this case, Constable Payne did make an offer of leniency, being immediate release after arrest, in exchange for a confession. 5. In the context here, I found that Mr.

Low Horn was dope sick, meaning he was suffering from drug withdrawal, at the time he was arrested, and the evidence was that he gave the confession because he was dope sick, and wanted to be released immediately so he could consume the drugs that he had recently purchased. [ 34 ] In conclusion, for all the above reasons, I am left with a reasonable doubt about whether the will of Mr. Low Horn was overborne by the threat and inducement in this context, and therefore find that the confession should not be admitted into evidence at the trial. Heard on the 6 th day of April, 2023.

Dated at the Town of Cardston, Alberta this 29 th day of May, 2023.

P.G. Pharo A Justice of the Alberta Court of Justice Appearances: M. Fox for the Crown I. Hess for the Accused