R. v. Hammerstrom

2014 BCSC 237 R. v. Hammerstrom IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hammerstrom, 2014 BCSC 237 Date: 20140214 Docket: 35648-3 Registry: Prince George Regina v. Cornelia Nicole Clay, Jamie Hal Hammerstrom, Jacqueline Lee Patrick, Samantha Nicole Patrick Restriction on publication: Pursuant to s. 517(1) of the Criminal Code of Canada Before: The Honourable Madam Justice B.J. Brown Voir Dire Ruling with respect to Corrections Officer Linteris Counsel for Crown: C. Malfair Counsel for the Accused: A. Zipp Place and Date of Hearing: Prince George, B.C. November 4 - 7; 12 - 15; 18 - 22; 25 - 27; 29 December 2- 6, 2013 Place and Date of Judgment: Prince George, B.C. February 14, 2014 INTRODUCTION [1] In the course of trial, Mr. Hammerstrom applied to exclude the voice identification evidence of Corrections Officer Linteris on the basis that there was a violation of his rights under s. 7 of the Canadian Charter of Rights and Freedoms (the "Charter"). [2] I ruled that the evidence would be admitted and said that I would provide reasons later. These are those reasons. [3] Mr. Hammerstrom argues that at all material times, he was detained in custody and was under state control. He says that while making his observations, Corrections Officer Linteris was a Peace Officer as defined under s. 2(3) of the Correction Act, S.B.C. 2004, c. 46 and was engaged in his duties as a Correctional Officer. He was an agent of the state who detained Mr. Hammerstrom. Mr. Hammerstrom was under his direct control and direction. Mr. Hammerstrom says that any evidence that Corrections Officer Linteris may give with respect to identifying his voice is conscripted evidence obtained by a state agent in control of Mr. Hammerstrom while he was detained by the state. In oral argument, Mr. Hammerstrom argues that the crux of his complaint is that he was never provided his s. 10(b) Charter rights when he was detained on the charges before me. He says that the breach of his s. 7 Charter rights arises from the failure to provide him with his s. 10(b) rights to retain and instruct counsel without delay and to be informed of that right. He says that without the s. 10(b) warning, he cannot be assumed to have known of his right to silence. He says that he was never given his ss. 10(a) or 10(b) rights with respect to the charges currently before me and was deprived of making a free choice as to whether to use his voice while he was imprisoned. [4] With respect to the remedy under the s. 24(2) Charter analysis, Mr. Hammerstrom says that the breach of his s. 7 Charter rights is a serious one and affects his right to choose whether to communicate or not with agents of the state. He says that the evidence of Corrections Officer Linteris is only one piece of the evidence led by the Crown and the case does not rise or fall on it and as a result, it is not required for the Crown's case. He argues that society would find it unfair to obtain evidence from an individual in these circumstances. [5] The Crown argues that there has been no breach of Mr. Hammerstrom's s. 7 Charter rights because the state did not actively elicit the statements from the accused. Rather, Corrections Officer Linteris came to know Mr. Hammerstrom's voice through the normal performance of his duties. At the time that he had interactions with Mr. Hammerstrom, from January 1, 2013 to September 4, 2013, Corrections Officer Linteris had no idea that his evidence would be used in court. After he learned that his evidence may be used in court, he advised Mr. Hammerstrom of this. Thereafter, he continued to have ordinary dealings with Mr. Hammerstrom in the course of his actions as a corrections officer at the institution in which Mr. Hammerstrom is detained. DISCUSSION [6] In my view, there has been no breach of Mr. Hammerstrom's s. 7 Charter rights. [7] In R. v. Oliynyk, 2005 BCSC 386, Madam Justice MacKenzie considered circumstances similar to those before me. [8] Each of the accused in Oliynyk argued that police obtained voice identification evidence in circumstances that violated his rights under ss. 7 and 10(b) of the Charter and applied to exclude the evidence under s. 24(2), as the accused have argued here. The circumstances with respect to each were somewhat different. First, with respect to Mr. Lepage, the police had a particular officer arrest Mr. Lepage because it was an opportunity to obtain voice identification evidence. The officer chosen had been working to analyze intercepted telephone calls pursuant to authorizations and was familiar with the voices relevant to the investigation. Madam Justice MacKenzie concluded that the officer realized that he had identified the voice of Mr. Lepage after his detention, during his arrest and while the officer provided the s. 10(b) right, but before Mr. Lepage had the opportunity to contact counsel and before he was cautioned about his right to silence. She concluded that the police used the arrest and the reading of the s. 10 Charter rights as an opportunity to obtain voice identification evidence by using the officer to effect the arrest. She said: [22] In my opinion, the issue here is whether the police violated Mr. Lepage's ss. 7 and 10(b) Charter rights simply by choosing an arresting officer who was familiar with Lepage's telephone voice so that the arrest could also be an opportunity for voice recognition or identification. In other words, was it constitutionally impermissible to use a routine arrest and provision of Charter rights to also obtain evidence of voice identification? I think not. For the following reasons, I find no violation of Mr. Lepage's ss. 7 and 10(b) Charter rights. The voice identification evidence is therefore admissible. [Emphasis in original] [9] Counsel had argued before Madam Justice MacKenzie that "Mr. Lepage was compelled, through his assertion of his right to counsel, to provide evidence against himself, that is, the sound of his voice" (Oliynyk at para. 23). [10] Madam Justice MacKenzie said: [78] In contrast, Mr. Lepage, for example, only spoke five words to Cpl. Applejohn before he was informed of his Charter right to contact counsel. It was during the words spoken by Mr. Lepage in the course of his being arrested and informed of his Charter rights that allowed Cpl. Applejohn to identify Mr. Lepage's voice as one of the voices on the wiretap. Corporal Applejohn was specifically sent to arrest Mr. Lepage because of his familiarity with the investigation and the wiretap. However, there was no elicitation of the voice identification evidence obtained from Mr. Lepage or any intention to obtain an incriminating statement from Mr. Lepage. Moreover, there was no ruse or guise employed by the police to obtain the voice identification evidence. The evidence was simply fortuitously obtained in conjunction with Mr. Lepage's arrest and assertion of his right to counsel. [79] In my view, to find that the evidence obtained in these circumstances was obtained in breach of the Charter would amount to requiring the police to specifically advise Mr. Lepage, before anything else, that he should not speak at all to the authorities or he would risk having his voice used to conduct voice identification. This would be an unreasonable demand to impose on the police. [83] If I am incorrect in my conclusion that Rendon does not stand for the proposition that it is never permissible for the police to obtain voice identification evidence during the course of administering an accused his or her Charter rights, I prefer to follow the reasoning of the British Columbia Court of Appeal in Rose. The court held that there must be eliciting conduct as described in Herbert and Broyles before evidence, (such as the voice identification evidence in this case), will have been obtained in breach of the Charter. [94] Regarding Mr. Lepage, I find no improper elicitation of evidence by Cpl. Applejohn. There was no deceit, subterfuge, ruse or unfair pressure involved as there was in Hebert, Broyles, or McKenzie. There was nothing that could be characterized as active elicitation or the functional equivalent of an interrogation. Mr. Lepage was not manipulated or exploited by the police. This was a routine arrest and provision of Charter rights. If anything was "exploited", or if there was any "activity" by the police, it was merely the use of Cpl. Applejohn and his prior knowledge of the voices on the intercepted calls that the police used to obtain evidence of voice identification. This surely cannot be characterized as a "corruption" of the arrest and Charter process. Moreover, I do not think the defence would have complained had the arrests been made by officers unfamiliar with the voices on the intercepted calls. [Emphasis in original] [11] Here, Corrections Officer Linteris was simply dealing with Mr. Hammerstrom in the same way that he dealt with all of the inmates. He had normal interactions with them, he spoke with them, he overheard interactions between inmates and other inmates as well as telephone conversations. In the course of his normal duties over several months, he became very familiar with Mr. Hammerstrom's voice. He did not do so at the instance of the police, nor was he to elicit information or evidence on behalf of police. He simply came to know Mr. Hammerstrom. That being so, I am not persuaded that Corrections Officer Linteris' evidence was obtained in breach of Mr. Hammerstrom's s. 7 rights. [12] Mr. Hammerstrom argues that his s. 10(b) rights were breached because he did not receive notice of his s. 10(b) rights when he was charged with the particular charges before me. However, as I understand it, police did not arrest Mr. Hammerstrom with respect to these offences; rather, the Indictment was laid, a warrant was issued by the court and Mr. Hammerstrom was brought before the court pursuant to the warrant. He appeared with counsel the following day before Judge Hogan. As I understand it, Mr. Hammerstrom was taken from the institution directly to the court and had no interaction with police before appearing in court. He was already detained and was not arrested on these charges. Therefore, I accept the submissions of the Crown that police could not have advised Mr. Hammerstrom of his s. 10(a) and (b) rights and, moreover, the purpose of being advised of his s. 10(a) and (b) rights is to obtain the right to counsel. In this case, Mr. Hammerstrom exercised his right to counsel and was represented by counsel when he appeared before Judge Hogan on February 29th, 2012, the day following the proffering of the Indictment. [13] I am persuaded by the reasoning of our Court of Appeal in R. v. Rose, 2004 BCCA 598 at para 27, leave to appeal to SCC refused, [2005] S.C.C.A. No. 45 that trial judges must follow the general guidelines regarding what constitutes eliciting behaviour as set out by the Supreme Court of Canada in R. v. Hebert, [1990] 2 S.C.R. 151 and R. v. Broyles, [1991] 3 S.C.R. 595. [14] In Hebert, Madam Justice McLachlin, for the majority, said in part at 184-85: The violation of the suspect's rights occurs only when the Crown acts to subvert the suspect's constitutional right to choose not to make a statement to the authorities in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. [15] Officer Linteris dealt with Mr. Hammerstrom in jail, was in uniform and was clearly a corrections officer over the several months that Mr. Hammerstrom dealt with him. There was no attempt by police to elicit information, nor could there be any doubt on the part of Mr. Hammerstrom that he was conversing with an officer of the state. The voice identification evidence was obtained by Corrections Officer Linteris in the course of normal jail procedure. Consequently, there has been no breach of Mr. Hammerstrom's s. 7 Charter rights. [16] If I am wrong in my analysis, and if the voice identification evidence was obtained in breach of Mr. Hammerstrom's Charter rights, I would not exclude the evidence pursuant to s. 24(2) of the Charter. [17] The Supreme Court of Canada set out a three part test in R. v. Grant, 2009 SCC 32 at paras. 67-86 to determine when evidence which was obtained in violation of a person's Charter rights should be excluded. In accordance with this test, I must first consider the seriousness of the Charter-infringing conduct; second, I must consider the impact on the Charter-protected interests of the accused; and third, I must consider society's interest in an adjudication on the merits. I consider all three parts of the test in turn. [18] First, the seriousness of the Charter infringing state conduct. In this case, I do not view the conduct of the state as a serious breach of Mr. Hammerstrom's Charter rights. The sound of his voice is something that was readily available to everyone on Mr. Hammerstrom's unit at Prince George Regional Correctional Centre. There was nothing particularly private about the sound of his voice. Moreover, Corrections Officer Linteris was acting in good faith when he was dealing with Mr. Hammerstrom. [19] Second, the impact on the accused. Again, I do not perceive listening to the sound of Mr. Hammerstrom's voice as an intrusive breach. This is not akin to seizing bodily samples from Mr. Hammerstrom. Again, the sound of Mr. Hammerstrom's voice was publicly available and could be heard by any member of the public who was on his unit at Prince George Regional Correctional Centre. [20] Third, society's interest in an adjudication on the merits. The truth-seeking process would be better served by the admission of the evidence. Corrections Officer Linteris had extended contact with Mr. Hammerstrom over several months and is in the best position to identify or exclude Mr. Hammerstrom's voice from the recordings put in evidence before me. He has had more extensive contact with Mr. Hammerstrom than others who gave voice identification evidence. Moreover, one who has listened to Mr. Hammerstrom over several months would have the opportunity to have heard Mr. Hammerstrom consistently and in different circumstances such that he could recognize Mr. Hammerstrom's voice better than others who had more limited contact with Mr. Hammerstrom. [21] Accordingly, even if there were a breach of Mr. Hammerstrom's rights, I am satisfied that the factors weigh in favour of admission of the evidence. CONCLUSION [22] In conclusion, I do not find that Mr. Hammerstrom's s. 7 or s. 10(b) Charter rights have been infringed. However, even if they have been, I do not find that it would bring the administration of justice into disrepute to admit the voice recognition evidence of Corrections Officer Linteris. "B.J. Brown J." The Honourable Madam Justice B.J. Brown