R v Letendre, 2017 SKCA 99

Court of Appeal for Saskatchewan Docket: CACR2805 Citation: R v Letendre , 2017 SKCA 99 Date: 2017-11-15 Between: Her Majesty the Queen Appellant And Landon Henry Arthur Letendre Respondent Before: Richards C.J.S., Ottenbreit and Caldwell JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Ottenbreit On Appeal From: 2016 SKPC 76 , Saskatoon Appeal Heard: September 8, 2017 Counsel: W.

Dean Sinclair, Q.C. for the Appellant Patrick McDougall for the Respondent Caldwell J.A. [ 1 ] The Crown appeals against an acquittal entered by a judge of the Provincial Court following his decision not to admit into evidence an accused’s statement to the police. The Crown alleges the judge erred in law in his admissibility assessment and seeks to have that decision set aside. For the reasons that follow, the Crown’s appeal is allowed and the matter is remitted to the Provincial Court for a new trial. [ 2 ] As I would remit the matter, I will only address the circumstances of the admissibility voir dire .

In this case, the Crown had called three police officers to testify as to their interactions with the accused, much of which had been recorded on video. Two of those officers testified the accused had volunteered to provide additional information to them off camera. The officers had warned that anything the accused said, even though off camera, could be used as evidence and was still subject to the KGB warning he had received. Nonetheless, the accused persisted and provided self-incriminating information about the offence that the officers were investigating.

The officers testified that video and audio recording equipment had been available in the interview room in which they had spoken with the accused, but it had not been engaged at the accused’s request or insistence. For this reason, each of the officers present had recounted the accused’s statement and the taking of it in their testimony.

They had each independently taken notes of their conversation with the accused, and of the circumstances of that conversation, to which they had been allowed to refer in the voir dire . [ 3 ] The accused did not testify at the voir dire and the officers’ testimony was otherwise uncontradicted. Furthermore, the accused did not assert that any of the officers had acted improperly toward him or had induced him to make the off-camera, incriminating statement. The accused accepted the officers had been truthful witnesses.

The thrust of his main argument on voluntariness had been that since recording equipment had been available it ought to have been used and the officers’ recollections and notes were incomplete and an inadequate substitute for a video recording. The accused did, albeit unsuccessfully, also assert that his statement had not been voluntary because he had lacked an operating mind due to health issues and drug use. [ 4 ] When the judge came to assess the admissibility of the accused’s off-camera statement on the basis of the officers’ testimony, he ruled the statement inadmissible.

In the concluding paragraph of his reasons for doing so, the judge wrote: [50] I find that there has been no satisfactory reason given as to why this oral statement was not recorded, whether by recording equipment that was readily available, or through detailed and contemporaneous notes as to who said what, what was asked, etc. Again, the law does not require that a statement taken in police custody must be recorded, but I find that I do not have a sufficient substitute for a recording to satisfy me as to voluntariness . It is the Crown’s obligation to prove voluntariness beyond a reasonable doubt.

Based on the record that has been provided of this oral statement, I have a considerable doubt as to the voluntariness of this statement, and as such I am not allowing it into evidence at the trial proper. [Emphasis added] [ 5 ] The Crown alleges the judge committed a number of errors when making this ruling, but I find the appeal may be determined solely on the basis that the judge erred in law in his understanding and application of the legal test for voluntariness set forth in R v Oickle , 2000 SCC 38 , [2002] 2 SCR 3, which is the leading decision on the admissibility of statements. [ 6 ] In R v Oickle , a majority of the Supreme Court identified four grounds for ruling a statement made to a person in authority inadmissible on the basis of voluntariness, namely, where the judge has a reasonable doubt the statement was not voluntary due to: (

a) threats or promises made to the suspect; (

b) oppressive circumstances surrounding the taking of the statement;

(

c) the lack of an operating mind on the part of the suspect; or (

d) police trickery “so appalling as to shock the community”. [7] As noted, the accused claimed unsuccessfully that he had lacked an operating mind but had not put at issue any of the otherR v Oickle grounds in his challenge to the voluntariness of his statement. Nonetheless, the Crown has the onus of proving voluntarinessbeyond a reasonable doubt: R v Oickle. [8] Given the obvious contextual nature of the test, to forestall reasonable doubt, the Crown will seek to establish that none ofthe circumstances described in R v Oickle arose in the course of the interaction between the police and a suspect.

This is done by theCrown putting all relevant information about that interaction before the court. While the Crown is not required to call each and everyofficer who had contact with a suspect (R v Wilkinson, 2013 SKCA 46 at para 10, 414 Sask R 103), the Crown must adduce asufficiently complete, accurate and reliable record of a suspect’s interactions with the police to satisfy the court of the voluntariness ofthe suspect’s statement. [9] In practical terms, this means the Crown must adduce the record of interaction through the testimony of the officers whointeracted with the suspect.

In this regard, courts routinely permit police witnesses to refresh their memories by reference to the notes oftheir interaction with a suspect or to refer in their testimony to an audio or video recording of that interaction, or to a transcript thereof.However, the voluntariness of a statement is not inherently-suspect simply because it has not been audio- or video-recorded: R v Oickleat para 46.

This makes sense because the issue in an admissibility voir dire is whether the evidence dispels any reasonable doubt as tovoluntariness, not whether Crown has adduced a complete record or whether the police witnesses’ notes or the recordings of theinteraction with the suspect or of the statement itself are complete.

And, it is in this respect that I find the judge was led into legal error. [10] From the transcript and his written reasons, it is clear the judge had been led to misunderstand that the issue of voluntarinessrested on the completeness of the police witnesses’ notes or recording of their interaction with the accused: [47] I remain in doubt as to how complete the evidence is as to what was said. It is not clear on the evidence precisely what was said,where it was said, and how long the conversation went on for. Sgt. Kieman [sic] testified that some of the things Mr.

Letendre allegedlysaid were in response to questions from him seeking clarification, but it is not clear what parts of the conversation this was in referenceto. Although I may well have more than a “snippet” of conversation, the lack of a more detailed record of what occurred makes thatimpossible to ascertain. [48] There are also minor inconsistencies. Sgt. Kiesman testified that Mr. Letendre declined the offer to go back on video, stating hedidn’t want to be a rat, that he was hungry, and that he wanted to go back to his cell. Constable Fouquette testified that the officers askedMr.

Letendre if he wouldn’t mind going back upstairs to get this on video/audio, but that Mr. Letendre stated he was tired, not feelingwell, and “basically didn’t want to do it”. Minor discrepancies, to be sure. But what was the need to go back upstairs, as by this time,they were in a room that would have allowed video recording? [49] As pointed out in Scharf, there is an obligation for the police to “properly record what was happening”. That is a precondition toadmissibility.

While the officers may believe they have recorded the important parts, that does not necessarily mean that the court or theaccused would take the same view. [Emphasis added] [11] Interestingly, even though the accused had put the completeness of Sergeant Keisman’s notes at issue, the accused hadobjected successfully to the Crown tendering those notes into evidence to refute that point.

Regardless, all of the judge’s observationswere relevant to an assessment of the reliability or weight to be given to an admissible statement at trial, but they are prematureobservations that have no place in determining the voluntariness of a statement in a voir dire held for the purposes of assessing itsadmissibility. [12] In R v Spence (1991), (SK CA), 89 Sask R 276, this Court held that “there is no basis for holding that acontemporaneous record is sine qua non for admissibility”, which is consistent with appellate decisions in other jurisdictions: R vSagliocco (1978), (BC CA), 39 CCC (2d) 514 (BCCA); R v Lessard (1982), (QC CA), 10 CCC(3d) 61 (Que CA); R v Brooks (1986), (BC CA), 28 CCC (3d) 441 (BCCA); R v Legere (1988), (NBCA), 43 CCC (3d) 502 (NBCA), leave to appeal to SCC dismissed [1989] 2 SCR viii; R v Richards (1997), (BCCA), 6 CR (5th) 154 (BCCA); R v Crockett, 2002 BCCA 658, 170 CCC (3d) 569; R v Ducharme, 2004 MBCA 29, 182 CCC (3d) 243; Rv Narwal, 2009 BCCA 410, 248 CCC (3d) 62; R v Tan, 2014 BCCA 9, 299 CRR (2d) 73; and R v Jackman, 2016 ONCA 121, 334 CCC(3d) 340.

It was an error of law for the judge to hold otherwise in the circumstances of this case. [13] In short, the judge erred in law by supplementing the voluntariness test from R v Oickle through his holding that the police inthis case had been obliged to create a sufficient substitute for a complete audio or video record of their interactions with the accused. [14] I would set aside the acquittal and remit the matter for a new trial. “Caldwell J.A.” Caldwell J.A. I concur. “Richards C.J.S.”

Richards C.J.S. I concur. “Ottenbreit J.A.” Ottenbreit J.A.