R. v. Turcotte

2006 BCSC 2089 R. v. Turcotte IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Turcotte, 2006 BCSC 2089 Date: 20060315 Docket: CO8895S Registry: Prince George Regina v. Thomas Alexander Turcotte Before: The Honourable Mr. Justice R.R. Holmes Oral Ruling on Voir Dire March 15, 2006 Counsel for Crown O. Kuzma, Q.C. M. Ahrens Counsel for Defence G. DelBigio L. Sturgess Place of Trial/Hearing: Prince George, B.C. [1] THE COURT: This is a ruling in respect of the voir dire regarding detention. [2] The accused seeks to exclude from evidence the statements made during the course of an interview with Corporal Curle and Constable Davidson at the Vanderhoof RCMP detachment, May 4, 2000, between 9:31 and 9:38 a.m. [3] The application is based upon breach of the accused's Charter s. 10(a) and (b) rights, with the remedy being exclusion of the evidence under and pursuant to s. 24(2). [4] The accused alleges that he was detained during the subject interview and was not promptly advised of or given his s. 10(a) and (b) rights. It is not alleged by the accused that the statements were other than voluntary, and the Crown has conceded that if it is found the accused was detained, then exclusion is the appropriate remedy under s. 24(2), as the evidence would be conscriptive in nature and to permit it to be admitted into evidence would bring the administration of justice into disrepute. Detention is, therefore, the sole issue in respect of this voir dire ruling. [5] Section 10(a) of the Charter provides and I quote: Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; And s. 24(2) provides that: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [6] A primary protection afforded under s. 10(a) is that the person will learn of their right to silence in protection against self-incrimination. [7] I refer in that context to R. v. Bartle. [8] I should pause to say that wherever in these reasons I refer to authority, I am referring to the authorities as provided to me, very thoughtfully, by counsel in their authority booklets and, therefore, the citations are as given in that material. [9] R. v. Bartle, I have as [1994] 3 S.C.R. 173, and I quote from paragraph 16: The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen [and the citation given]. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining . . . her liberty: Citation for Brydges given: Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested in Clarkson v. The Queen, [the citation given], the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [10] The Crown's position is that the accused was not detained prior to Corporal Curle learning in a telephone call at approximately 10:02 a.m. that the attending officers at the ranch had found a person dead. The accused was formally advised at 10:05 a.m. that he was detained for investigation of a sudden death at the ranch. [11] Mr. DelBigio points to several areas of the evidence in support of the accused being under detention from the time that he left the public counter area of the RCMP detachment in Vanderhoof and through the seven minutes that he was in the interview room. Constable Davidson did say that he heard from the accused that he had a rifle in the truck while he was at the counter. His evidence was, however, equivocal regarding when he first heard of the rifle. He said he thought the accused spoke of the rifle at the counter, but for certain, he said it in the interview room. It is the evidence of Corporal Curle that he first heard of a rifle being in the truck during the conversation in the interview room. [12] Constable Davidson was also equivocal in his evidence as to where and how he got the keys to the Toyota pickup belonging to Mr. Heikkila. He thought that he picked them up from the counter as the accused pushed them under the glass divider. The evidence of Ms. Stewart, however, is that she picked them up from the counter and kept them in the radio room after Constable Davidson, Corporal Curle and the accused went to the interview room. I prefer the evidence of Ms. Stewart in this regard, as it is consistent with her evidence that while she had the keys in the radio room, she noted that one was marked as a Toyota vehicle, and she looked out the window, saw a Toyota pickup, noted down the licence number and ran a CPIC search. It is consistent with her having accompanied Constable Davidson when he later went to the vehicle. [13] Constable Davidson, after the search of the vehicle, seized the rifle, and later the truck was seized by towing to the police secure parking area. I do not believe the truck was towed until after word was received that an unexplained death was involved as reported by officers attending at the ranch. [14] The answer to the hypothetical question as to whether Constable Davidson would have detained the accused on the basis of the information he had while at the counter was answered, that he would not have detained him, but he would have followed him out presumably so that he could check on the presence of the rifle and then decide what course of action might be appropriate. He deferred any question of detention to Corporal Curle as the senior officer following upon his arrival. [15] Counsel suggested that the use of the word "ushered" in the evidence in respect of the accused entering the interview room was indicative of control and being ordered and directed. I do not agree. I find that Corporal Curle opened the door from the public to the police side of the partition and asked or invited the accused to come in. This was done for the purpose of privacy, and there was evidence by Constable Davidson, at that time, that he believed a person had entered into the public area of the office. [16] The accused, in fact, had moved toward the existing door through the partition to the police side initially when speaking with Ms. Stewart, and she had asked him to return more to the counter's centre area. [17] The accused was not physically touched and was simply guided by gesture or word to the interview room. I also do not agree that the interview room itself be noted an area of detention because it was used for interrogation of suspects. It was a multiple-purpose room used for interrogation as well as taking witness statements, meeting with complainants or other uses that it could accommodate in the detachment. The room was small, approximately eight-by-ten feet. It contained a table and three chairs and some radio or recording equipment on a wall. I do not find that shutting the door was indicative of other than privacy, nor do I find in a room of that size that Constable Davidson, standing near the door, would be anymore confining to the accused than if he were seated in close proximity to the accused at the table where the corporal was seated and writing. [18] The question-and-answer format used in the interview is equally consistent with interrogation or the recording of witness information and is not of itself indicative of the person interviewed being a suspect or that the process is adversarial. I accept the evidence of Constable Davidson that the accused was told at the inception of the interview that they needed to obtain more information in order to act on his request to dispatch police to the ranch. All questions related to why the police presence was needed at the ranch and whether medical assistance was required or if anyone would be in danger. These were questions directed to the administrative responsibilities of the police. None of the questions was either accusatory or confrontational. [19] The accused continued his previous pattern of answering only questions that he wished and introducing without a question extraneous matters such as wishing to be arrested or that there was a rifle in the truck. I note that despite the accused bringing up the issue of there being a rifle in the truck, there were no questions directed to that statement, only a continuation of trying to obtain enough relevant information to process the request the accused was making for dispatch of police to the ranch. [20] It must also be remembered that the accused himself, from first entering the detachment office and speaking to Ms. Stewart and through the interview in issue, was insisting on being detained, arrested or jailed. [21] The accused did not ask if he could have a lawyer or say that he wanted a lawyer. His request was how long would it take to contact a lawyer. The interview, however, was stopped immediately and the accused provided immediate access to legal aid duty counsel through use of a telephone in the telephone room. [22] Corporal Curle testified that he did lock the accused in the phone room and he was kept under observation there. That is clearly an indication of detention. However, I accept the corporal's evidence that it occurred in this instance only because of his force of habit in locking the door on persons who are using the phone to contact counsel. [23] The phone room is just off the jail cell detention area, and I do not find it unusual that a member of the public, such as the accused, would be left in that area without their presence being monitored. Corporal Curle was asked the hypothetical question regarding whether he would have stopped the accused from ending the interview and leaving the interview room. He answered that, on reflection, he would have detained him and agreed that he had assumed control over the accused. He agreed that the questions that he had asked could advance the investigation and be contrary to the interests of the accused. I do not know what investigation was being referenced. [24] Detention may be physical or psychological and, of course, a combination. In R. v. K.B., Mr. Justice of Appeal Freedman (these are Manitoba cases from the Manitoba Court of Appeal) quotes with approval Mr. Justice Le Dain in R. v. Therens, which is a seminal decision on the issue describing the concept of psychological detention, and I quote from that decision at paragraph 13: Detention may be effected without the application or threat of application of physical restraint if the person concerned acquiesces in the deprivation of liberty and reasonably believes that the choice to do so otherwise does not exist. [25] The accused did not give evidence on the voir dire, which makes his perspective difficult to gauge. [26] In R. v. Dolynchuk, Mr. Justice of Appeal Steel at paragraph 20 addresses that issue, and the citation for the Dolynchuk decision is 2004 MBCA 45, and I quote from paragraph 20 of that decision: The testimony of the accused as to his subjective belief that he was compelled to reply to the police is certainly very powerful evidence as to the existence of a reasonable belief. Neither the accused in C.R.H. nor the accused at bar testified on the voir dire. In most cases, this would end the matter. However, ultimately, the determination is an objective one, and in appropriate circumstances, a court may conclude that the accused was psychologically detained even though he did not testify. Although it would have been preferable for the accused to testify as to his subjective belief, I do not agree with the Crown that in every case of psychological detention, the absence of evidence from the accused automatically negates the possibility of finding, in the words of Justice Le Dain in Therens, at p. 644, "a reasonable perception of suspension of freedom of choice" so as to make the restraint of liberty involuntary. In fact, in the case of C.R.H., I stated . . . And then he quotes from page 47 of that decision: I am not suggesting that there can . . . be a finding of detention in the absence of testimony from the accused, but such a determination would require stronger facts than exist in this case. The court must still have some evidence from which it can infer that the circumstances were such that the accused could reasonably have concluded that his freedom had been restrained. And at paragraph 21, the contextual nature of the examination is outlined, and I quote from paragraph 21: When a person . . . response to a demand from a police officer, it is often difficult to distinguish what is compulsory from what is voluntary or, in fact, to distinguish a demand from a question. I concluded in the C.R.H. case, at para. 30, that all of the words and conduct of the participants, as well as the environment in which the questioning took place, should be examined. [27] A power imbalance exists between police and citizen, but it does not prohibit the police in asking questions, but: Instead, the power imbalance should be one of the factors to be considered in an analysis of the interaction and a consequent determination of whether there was a compulsion to comply. [C.R.H. decision at ¶36] [28] As the accused did not testify on the voir dire, I have looked at the whole of the evidence of his interaction with the police to discern evidence of compulsion. I do not find that compulsion to reply to the questions posed was present during the subject interview, nor do I consider either from the interview evidence or in combination with the later evidence of his videotaped interview that evening, including his demeanour, presence, and evidence indicative of his intellect and self-control in choosing to answer some questions, deflect others, or in refusing to answer some and then change topics quickly can support a reasonable belief that a compulsion to reply to questions in issue was present. [29] The question by the accused as to how long it would take to contact a lawyer, which ended the interview, was more a reaction to his not obtaining what he wanted, on his terms, than evidence of compulsion. [30] As noted by Madam Justice Wedge in the decision of R. v. Atwal, the seven criteria given as indicative of detention in R. v. Moran (1987), 36 C.C.C. (3d) 225, which is a decision of the Ontario Court of Appeal and the indicia referred to found at page 258 to 259 of that decision said, and I am quoting from Madam Justice Wedge in Atwal, which has a citation [2004] B.C.J. No. 2868, 2004 BCSC 998, New Westminster Registry X066062, and I quote from paragraph 97 of the Atwal decision found at page 19: Those seven criteria have been considered in countless decisions where the issue was de facto detention. As noted by the court in Hogben, they are "useful tests" or guidelines. As such, they are not to be applied in a mechanistic factor. The list is not exhaustive. Nor must an accused establish the existence of all the criteria. Some of them, but not necessarily all, may be relevant in the context of the particular case. [31] Counsel for the accused and for the Crown both cited and considered those criteria, with each arguing the preponderance of factors favoured their position. I find the analysis strongly favours the view of the Crown. Factors one and two clearly do not support detention. The accused attended at the police detachment freely and of his own accord. [32] As to the third factor, he was detained and arrested at the police station later, not because of the police interview in question, but rather because of his insistence that there was a loaded gun in his truck and receipt of information that the police attending at the ranch found an unexplained, apparent traumatic death of a person at the area that he had insisted they attend. [33] Regarding factor four, the only investigation underway was the attempt to obtain information relevant to an administrative decision whether to deploy a police car to the ranch in respect of the accused's request that they do so. [34] As to factor five, the police had no reasonable and probable grounds to believe the accused had committed any crime they were investigating, as they were not investigating any crime. [35] As for factor six, all questions were non-accusatory, general in nature and directed to the issue of a dispatch of police to the ranch pursuant to the accused's request. [36] Factor seven, the accused gave no evidence on the voir dire, so his subjective view is unknown. He was asking to be jailed, which may well be an indication that he did not feel that he was under detention. [37] The evidence in the later video recorded that evening and the evidence of Corporal Curle and Constable Davidson dispel any suggestion that the factors such as low intelligence, emotional disturbance, youth, immaturity or lack of sophistication were present in the case of Mr. Turcotte. [38] The answers of Corporal Curle to the hypothetical question prompted by Mr. DelBigio as to what would have occurred had the accused tried to leave the interview in issue is a factor to be determined, but is itself not determinative. [39] I cannot express better than did Mr. Justice Ehrcke in R. v. S.W.M., the citation for which is [2005] B.C.J. No. 2489, 2005 BCSC 1466, Vancouver Registry Number 23348, and I quote from page 6 and 7 of that decision in paragraphs 38 and 39: ¶38 I should add that in this context, the kind of question that is often asked of police officers, namely, "If he had tried to leave, would you have let him" is far from determinative. The question takes the form of a counter-factual conditional. That is, it hypothesizes a situation that in fact did not occur. Generally speaking, the proposition that a person would have done X if Y had occurred does not imply that X really did occur even though Y did not. If a police officer said, "I would have put him in handcuffs if he had tried to punch me", that does not imply that the officer did in fact put him in handcuffs. Quite the contrary. ¶39 Of course, if the police directed their minds to the question before the start of an interview, and decided from the beginning that they would not let someone go if he tried to leave, then that may be probative evidence of detention. But there is no evidence of that kind of advance planning in the present case. [40] The answers of Corporal Curle were in hindsight of an event that never happened. It concerns a matter close to six years distant not previously considered and was first asked during cross-examination on his evidence during retrial of the action. [41] In the context of this case, even if the inquiries of the accused as to the reason for dispatch of a police car to the ranch or if danger was present or medical assistance required, could be said to be the start of a criminal investigation, which I do not suggest, it would not constitute a detention that gives rise to the s. 10(b) rights. [R. v. Kay (1990), 53 C.C.C. (3d) 500 (B.C.C.A.); R. v. Lawrence (1990), 59 C.C.C. (3d) 55 (O.C.A.)] [42] In the result, taking account of the law, and the context of the evidence, and considering the relevant criteria and indicia urged by counsel, I conclude that the accused has not proven on a balance of probability that he was detained during the course of the interview in issue and, therefore, the application to exclude statements is dismissed. "R.R. Holmes, J." The Honourable Mr. Justice R.R. Holmes