Docket: CACR2027 Her Majesty the Queen Appellant - v. -, 2013 SKCA 46

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 46 Date: 2013-05-01 Between: Docket: CACR2027 Her Majesty the Queen Appellant - and - Keith George Wilkinson Respondent REVISED JUDGMENT: The text of the original judgment has been corrected with text of the erratum (released May 13, 2013) appended. Coram: Klebuc C.J.S. and Caldwell and Herauf JJ.A. Counsel: Douglas G. Curliss, Q.C., for the appellant Peter A. Abrametz, for the respondent Appeal: From: 2011 SKQB 91 and 2011 SKQB 230 Heard: March 22, 2013 Disposition: Dismissed Written Reasons: May 1, 2013

By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Herauf Caldwell J.A. [1] The Crown appeals from the decision of the trial judge to acquit Keith George Wilkinson on the charge of possession of acontrolled substance for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, onthe grounds that the trial judge erred in law when he excluded a statement made by Mr. Wilkinson after his arrest (voir dire decision at2011 SKQB 91). Mr.

Wilkinson was convicted of the lesser included offence of simple possession of cocaine (trial decision at 2011SKQB 230). I would dismiss the appeal for the reasons which follow. [2] This is one of many criminal matters arising out of the Prince Albert Police Service’s surveillance of Ourawone Sundara in aDecember 2009 drug trafficking investigation. During their surveillance, the police came to believe persons in Mr. Wilkinson’s vehiclehad picked up drugs at Mr. Sundara’s residence so they stopped the vehicle. Upon being questioned at the road-side, Mr. Wilkinsonadmitted to possession of marihuana.

The police searched the vehicle and found a small bag of marihuana in plain sight on the vehicle’sconsole. They arrested Mr. Wilkinson and transported him to the Prince Albert Police Station. At the station, Constable Bear searchedMr. Wilkinson and found a clear baggy containing one ounce of cocaine, which had been hidden under one of the two pairs of socks Mr.Wilkinson wore. Constable Bear booked Mr. Wilkinson but did not advise him of his rights. Sometime later, Mr. Wilkinson consultedwith Legal Aid counsel. Then, about 17½ hours after his arrest, Constable Chester interviewed Mr. Wilkinson.

The interview wasvideotaped with an audio record. [3] The record of the interview shows that at approximately 1 minute and 23 seconds into it Constable Chester asked Mr. Wilkinsonif he had spoken with any other police officers about his offence and Mr. Wilkinson answered “no”. Constable Chester then provided thestandard police warning (i.e., he informed Mr. Wilkinson that he need not say anything, and that anything that he did say could be usedas evidence) to which Mr. Wilkinson said: “I know.” Then, at 1 minute and 37 seconds into the interview, Constable Chester informedMr.

Wilkinson that he had the right to retain and instruct legal counsel. In response, Mr. Wilkinson stated that he had spoken to a LegalAid lawyer already. When Constable Chester asked if Mr. Wilkinson wanted to speak to another lawyer, Mr. Wilkinson said there was“no point” in talking to another lawyer. It is of passing note, from the interview, that it is unclear whether Mr. Wilkinson knew, at thetime he spoke with a Legal Aid lawyer, that he had been charged with possession for the purpose of trafficking. [4] Critically, during the interview, Mr.

Wilkinson provided statements to the effect that he intended to sell the cocaine found in hispossession. At 4 minutes and 37 seconds into the interview, Constable Chester asked Mr. Wilkinson how much he had paid for the ounceof cocaine found on him. Mr. Wilkinson replied that he had not paid for it. Constable Chester then asked Mr. Wilkinson if he had been“fronted” the drugs to which Mr. Wilkinson agreed. Then, at 17 minutes and 40 seconds into the interview, Constable Chester asked himhow much he had sold cocaine for, and he replied “$2,250 an ounce”.

This information was ultimately to form the sole basis for theCrown’s case against Mr. Wilkinson on the charge of possession of cocaine for the purposes of trafficking. [5] In the voir dire into, among other things, the admissibility of Mr. Wilkinson’s statement, the judge noted the Crown had notmade available for cross-examination all of the officers who had had contact with Mr. Wilkinson from the time that he had been stoppedin his vehicle to the time Constable Chester began the interview.

In particular, the judge expressed genuine concern over the absence ofany evidence with respect to the interaction between the police and Mr. Wilkinson over an approximately 17½ hour period during whichhe was booked and, at some point, allowed to call Legal Aid, during which he presumably had some direct contact with police officersabout his charges. In response to direct questioning from the judge on this issue, the prosecutor acknowledged her frustration in beingunable to ascertain from the Prince Albert Police Service the name of the officer who had facilitated Mr. Wilkinson’s contact with LegalAid.

I also observe that the Crown had admitted to, and the trial judge was clearly aware of, breaches of Mr. Wilkinson’s s. 10(

a) and (b)Charter rights during his 17½ hour detention, albeit unrelated to the taking of the statement in question. [6] In his reasons following the voir dire, the judge correctly noted that, under the traditional test for determining the admissibilityof a statement, the Crown bears the burden of proving beyond a reasonable doubt that no threat, promise, inducement or coercive tactichas been used by any person in authority to undermine the voluntariness of the statement under review (see: R. v. Erven, (SCC), [1979] 1 S.C.R. 926; and R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3).

As to the practical effect of this burden, the judgereferred to the following passage from R. v. White, 2002 SKQB 73, 216 Sask. R. 224: [4] The burden of proof that a confession is voluntary rests on the Crown and will “... rarely, if ever, be discharged merely by proofthat the giving of the statement was preceded by the customary warning and an expression of opinion on oath by the police officer, whoobtained it, that it was made freely and voluntarily”: Sankey v. The King (1927), (SCC), 48 C.C.C. 97 (S.C.C.) at p. 101;Monette v. The Queen (1956), (SCC), 114 C.C.C. 363 (S.C.C.).

Where the evidence adduced by the Crown is exhaustivein respect of everything that was said to the accused by persons in authority and it discloses no threats or inducements, then the statementis likely to be found voluntary. The only way available to the Crown to prove such a negative proposition is to produce evidence ofeverything that was said to or in the presence of the accused and all the circumstances relevant to the making of the statement.

In the caseat bar, the Crown complied with that procedure. [7] Then, turning to the issue at hand on the evidence before him, the judge expressed his concerns and his conclusion about theCrown’s efforts to discharge its burden in these terms:

[15] In cross-examination Cst. Mitchell said that Sgt. Kennedy arrived at the scene in the Superstore parking lot shortly after hisarrival. He testified that the accused went from his police car to Sgt. Kennedy’s vehicle who escorted him to the cell block. Sgt.Kennedy, although she apparently transported the accused to the police station, was not called to give evidence. [16] The Crown has not called or made available all the officers that had contact with the accused from his arrest to the taking of thestatement, some seventeen and one-half hours after arrest.

It is apparent from the video, that the accused was allowed to contact LegalAid after his arrest and prior to the video. There is no evidence as to how or who facilitated that for the accused or what was said to theaccused by the person in authority who arranged for the accused to make that phone call. [17] I agree in with Barclay J. in R. v. White, supra, when he said the Crown is required “to produce evidence of everything said to, orin the presence of the accused”. The Crown has failed to do so.

I find that it has not met the burden required and I hold that the statementis not admissible. [8] In the result, having excluded the statement, the trial judge determined the Crown had not established beyond a reasonable doubtthat Mr. Wilkinson was guilty of possession of cocaine for the purpose of trafficking, but he was satisfied as to Mr. Wilkinson’s guilt onthe charge of possession of cocaine. [9] The Crown’s appeal focuses on what it believes the judge meant in paragraph 17 of his decision.[1] The Crown takes greatexception to the trial judge’s agreement with R. v.

White where that court said the Crown is required “to produce evidence of everythingsaid to or in the presence of the accused”. The Crown submits the judge in effect ruled that “as a matter of law the Crown was required tocall all officers that had contact with [Mr.

Wilkinson] from the time of his arrest to the making of his statement and, in the absence ofsuch testimony, a statement is not admissible.” In other words, the Crown has contended that the judge misapprehended the evidentiaryburden imposed on the Crown by holding it to an overly onerous standard. [10] Certainly, the Crown is not required to call each and every officer who has had contact with an accused. The Crown’sinterpretation of the quote extracted from R v. White is overly-broad, but then the quote, on its own, lacks the context of the full reasonsin that case.

The trial judge’s use of the quote in the decision at hand must be qualified by the nature of the onus imposed on the Crownand the trial judge’s observations as to the specific gaps in the evidence which, in my opinion, reasonably led him to his ultimateconclusion (at para. 17) that the Crown had not met the burden imposed on it.

Let me explain. [11] As noted, a statement is not admissible if it is made under circumstances that raise a reasonable doubt as to its voluntariness.Accordingly, a trial judge must “strive to understand the circumstances surrounding the [statement] and ask if it gives rise to a reasonabledoubt as to the [statement’s] voluntariness” (see Oickle, at para. 71). It is further well-established that the Crown bears the burden ofproving beyond a reasonable doubt the admissibility, or voluntariness, of a statement.

This means it is incumbent on the Crown to showaffirmatively that an accused was properly treated and not questioned outside the context of the taking of the statement in question (see: R. v. Holmes (2002), (ON CA), 169 C.C.C. (3d) 344 (Ont. C.A.) and the cases cited therein).

In practical terms, theCrown must place before the trial judge all relevant circumstances surrounding the taking of the statement so that the trial judge, havingall of the facts, can form his or her own opinion as to whether the statement was free and voluntary. [12] Here, at the core of the decision, the trial judge concluded the Crown had failed to discharge the onus of establishing a sufficientrecord of the interaction between the police and Mr. Wilkinson so as to eliminate any reasonable doubt as to the voluntariness of thestatement.

True, the judge said the Crown had not called or made available all of the police officers who had had contact withMr. Wilkinson from his arrest to the taking of the statement (some 17½ hours), but, in doing so, the trial judge was particularly pointingto two clear gaps in the evidence adduced by the Crown:

(1) Sergeant Kennedy, who had transported Mr. Wilkinson from the place ofhis arrest to the police station, was not called to testify; and (2) there was simply no evidence as to how Mr. Wilkinson had come to callLegal Aid or who had facilitated that call for Mr. Wilkinson and, particularly, there was necessarily then no evidence as to what had beensaid by persons in authority to Mr. Wilkinson during this interaction. In fact, the Crown did not even know the name of the policeofficer(

s) who had facilitated Mr. Wilkinson’s call to Legal Aid. [13] The completeness, accuracy and reliability of the record of an accused’s interactions with the police are inextricably tied to a trialjudge’s inquiry into and scrutiny of the circumstances surrounding the taking of a statement. Here, the Crown adduced no evidence of a17½ hour delay between the arrest and the taking of the statement during which time Mr. Wilkinson was in police custody and, moreimportantly, during which time the police clearly had some significant interaction with him.

I do not see how the trial judge could cometo “understand the circumstances surrounding the taking of the [statement]” (Oickle) in the face of that significant gap in the evidence.

Inthe circumstances, the Crown itself could not have made an assessment of the relevance or probative value of that unavailable evidence.And, given the nature of proof beyond a reasonable doubt and the fact that proof of voluntariness lies with the Crown, the judge couldnot be expected to give the benefit of the reasonable doubt arising from the clear gaps in the evidentiary record to the Crown. [14] In the result, I find no error in the trial judge’s conclusion that the Crown had not met its burden of proof as to the voluntariness ofMr.

Wilkinson’s statement or in the judge’s decision to exclude the statement from evidence. I would, therefore, dismiss the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of May, A.D. 2013. “Caldwell J.A.”_____________________

Caldwell J.A. I concur “Klebuc C.J.S.” ________________ Klebuc C.J.S. I concur “Herauf J.A.” _______________________ Herauf J.A. The Queen v. Keith George Wilkinson CACR2027 2013SKCA46 released May 1, 2013 Erratum released May 13, 2013 Please note the following modification to the above noted judgment: In paragraph [2], the sentence reads: “Then, about 17½ hours after his arrest, Constable Chester interviewed Mr. Wilkinson but did not advise him of his rights.” That sentence is amended to read: “Then, about 17½ hours after his arrest, Constable Chester interviewed Mr. Wilkinson.”