R. v. Adam et al.

2006 BCSC 1884 R. v. Adam et al IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Adam et al., 2006 BCSC 1884 Date: 20061229 Docket: X067362 Registry: New Westminster Regina Against Wade Alex Adam, Sean William Doak, Robert Vaughn Hamm, Bryon John Newberry, Shane Jason Schindler, Thomas William Westle and Trevor Lee Ernest Zacharuk Before: The Honourable Mr. Justice S.R. Romilly Voice Identification Counsel for the Crown Mandana Namazi Leslie LeClair Counsel for the Accused, Wade Alex Adam and Sean William Doak John Conroy, Q.C. Counsel for the Accused, Robert Vaughan Hamm Darcy P. Lawrence Counsel for the Accused, Bryon John Newberry and Trevor Lee Ernest Zacharuk Kenneth R. Beatch Counsel for the Accused, Thomas William Westle Robert Gunnell Date and Place of Hearing: September 18-22 October 16-18 & 30-31 November 1-3 & December 5, 2006 New Westminster, B.C. Table of Contents Section Paragraph Numbers A. OVERVIEW 1 B. BACKGROUND 2 C. ISSUES 6 D. RELEVANT FACTS 7 i. Corporal McDougall's Evidence 13 ii. Staff Sergeant Goddard's Evidence 29 iii. Sergeant Harrison's Evidence 43 iv. Ms. D's Evidence 51 v. Purported Voice Identification of Doak 53 vi. Purported Voice Identification of Newberry 63 vii. Purported Voice Identification of Adam 71 viii. Purported Voice Identification of Zacharuk 85 ix. Purported Voice Identification of Hamm 93 x. Purported Voice Identification of Schindler 108 xi. Purported Voice Identification of Richards 114 xii. Purported Voice Identification of Higgins 117 xiii. Purported Voice Identification of Yordanov and Straumietis 119 xiv. Purported Voice Identification of Wasilewicz 121 xv. Purported Voice Identification of Legree 124 xvi. Purported Voice Identification of Fabris 127 xvii. Purported Voice Identification of Stahl 129 E. VOICE IDENTIFICATION 129 i. The Law 129 (a) Foundation 134 (b) Prior Identification Exception 142 (c) Standard of Proof 159 ii. Applying the Law to the Facts 165 F. CHARTER ISSUES 166 i. The Law 166 (a) Section 7 170 (b) Section 8 194 (c) Section 10(b) 202 ii. Applying the Law to the Facts 224 (a) Doak 225 (b) Newberry 226 (c) Adam 227 (d) Zacharuk 229 (e) Hamm 230 iii. Section 24(2) if Necessary 231 (a) Trial Fairness 234 (b) The Seriousness of the Violation 246 (c) Impact of Exclusion of Evidence on the Repute of the Administration of Justice 253 G. CONCLUSION 260 A. OVERVIEW [1] This is an application by the defence to have the lawfully intercepted telephone communications of the accused excluded from evidence. For the reasons stated below, the application is denied. B. BACKGROUND [2] This voir dire arises in the course of an ongoing trial for conspiracy to export marihuana and conspiracy to traffic marihuana. The root of the trial is an investigation, code-named "Project Exacto-Two" by the Royal Canadian Mounted Police ("R.C.M.P."), which took place between 2000 and 2002. The trial itself has grown to include a profusion of applications, motions and hearings. Much of the background information on which the trial rests is irrelevant for the purposes of this voir dire, and so I will not discuss that extraneous information. A relatively complete overview of the background to this case can be found in R. v. Adam, 2006 BCSC 350. According to an affidavit filed in the course of that ruling, Project Exacto-Two involved the investigation of five organizations and involved seven alleged conspiracies. [3] The R.C.M.P intercepted 197,000 telephone calls in Project Exacto-Two between February 2001 and July 2001 pursuant to authorizations granted by this court. These authorizations were ruled to have been lawfully made in two prior judgments: R. v. Adam (Validity of Authorization, P.1/2000), 2006 BCSC 200 and R. v. Adam (Validity of Authorization, P.1/2001, P.17/2001, P.21/2001, P.35/2001), 2006 BCSC 382. [4] In the course of the trial, various officers who had taken part in the police investigation were called to identify voices on the intercepted telephone calls, in addition to one individual who was not involved in the police investigation. In addition to these witnesses, the Crown relied on other circumstantial evidence in an effort to link voices on the intercepted calls introduced into evidence to the accused and to the unindicted alleged co-conspirators. [5] Defence counsel submits that the police voice identifications called on this voir dire were flawed. In addition, they argue that obtaining the voices of Wade Alex Adam ("Adam"), Sean William Doak ("Doak"), Robert Vaughn Hamm ("Hamm"), Byron John Newberry ("Newberry") and Trevor Lee Ernest Zacharuk ("Zacharuk") after their arrests was done in a manner which violated ss. 7, 8, and 10 of the Canadian Charter of Rights and Freedoms and should be excluded pursuant to s. 24(2) of the Charter. C. ISSUES [6] The issues raised on this voir dire are: 1. Has the Crown established a sufficient foundation for the voice identification evidence such that the court should weigh the evidence? 2. Were the Charter rights of the accused, specifically those rights guaranteed in ss. 7, 8 and 10(b), violated? If they were, should the evidence be excluded based on s. 24(2)? D. RELEVANT FACTS [7] Voice identification evidence was tendered by the Crown from four witnesses: Corporal John McDougall, R.C.M.P., Staff Sergeant David Goddard, R.C.M.P., retired Sergeant Ron Harrison, R.C.M.P. and Ms. D. [8] The Crown tendered the voice identification evidence as proof that the voices heard on the lawfully intercepted telephone calls, during the course of Project Exacto-Two, are the voices of the accused and of several unindicted co-conspirators as alleged by the Crown. [9] At the end of the investigation, Staff Sergeant Goddard, who was in charge of the monitor room from April 2001 to July 2001, listened to the 140 intercepted telephone calls that were introduced into evidence on this voir dire and added suspected names of speakers to each of the calls. These 140 intercepted calls were placed on a disc which was marked as Exhibit 64 in these proceedings. A transcript of these calls with the names of the parties to each call was prepared by Staff Sergeant Goddard and two of his associates. This transcript, with the names of the parties to each call, was marked as Exhibit 65 (Transcript A). Staff Sergeant Goddard also prepared a disc of an additional 29 calls which was marked as Exhibit 64B. Staff Sergeant Goddard and two of his fellow officers also made transcripts of these 29 calls with the suspected names of the speakers in each of these calls appended to each call. The transcript of these 29 calls with the names of the speakers in each call was marked as Exhibit 65B (Transcript B). Staff Sergeant Goddard also prepared a disc of an additional 11 intercepted telephone calls which was marked as Exhibit 64C. Staff Sergeant Goddard and two of his fellow officers also made a transcript of Exhibit 64C with the suspected names of each speaker in each of the calls. This transcript was marked as Exhibit 65C (Transcript C). [10] Exhibits 64, 64B, 64C and Transcripts A, B, and C were disclosed to defence counsel and have been in their possession for the past three years. [11] Apart from the voice identifications made by Corporal McDougall, Staff Sergeant Goddard and Sergeant Harrison, evidence was led of various other surveillance techniques used by the police to ensure that the voice identifications made were indeed correct. Evidence was led by Corporal McDougall that every day during this six month investigation he had to provide summaries of the intercepted calls that he deemed to be important and turn them over to the co-ordinator of the file, Sergeant Harrison, so that he could deploy other officers to do surveillance where and when necessary. These summaries were also prepared by him each day for the benefit of the affiants in support of further authorizations. [12] Evidence was also adduced on this voir dire to the effect that there was a target book in the monitor room where biographical and other information about the targets, including their nicknames, was made available to the persons in the monitor room. The information in the target book was constantly updated as other information was uncovered by the other investigators on the file. i. Corporal McDougall's Evidence [13] Corporal McDougall has been a member of the R.C.M.P. since 1981. He has extensive experience investigating narcotic/drug offences dating back to his posting in 1988 at the North Vancouver R.C.M.P. detachment and continuing throughout his career with the R.C.M.P. [14] Corporal McDougall was continually involved with R.C.M.P. wiretap investigations commencing with Project E-Caviar in 1995 through to Project Exacto-Two in 2001. Corporal McDougall described his role in the investigations as evolving from responsibility for monitoring intercepted telephone calls on Project E-Caviar, to being investigator in charge of the monitor room on Project Exacto-Two. The monitor room of Project Exacto-Two was operational from February 2001 until July 2001. [15] As one of the investigators in charge of the monitor room, Corporal McDougall would receive information and intelligence from the File Coordinator, Sergeant Harrison, and would focus the monitor room activities. During Corporal McDougall's shift, he would direct the call room monitors to focus on particular lines (or channels) and to report any significant calls back to Sergeant Harrison. [16] Corporal McDougall listened to the intercepted communications as part of his regular activities in the monitor room. He maintained a digest of the significant intercepted calls (the Daily Desk Reports) in order to record the progress of the investigation for the investigators and call room monitors. While responsible for the monitor room, Corporal McDougall was aware that he could be called upon to provide voice identification evidence in court. He testified that he was able to become familiar with the voices and to establish a storyline for each of them. [17] Corporal McDougall listened to the lawfully intercepted telephone communications in the monitor room for a period of six months. He listened to several thousand phone calls in this period. [18] Subsequent to the conclusion of the interceptions on July 17, 2001, Corporal McDougall continued to listen to the telephone calls over the course of the many months it took to complete the disclosure process. In addition, Corporal McDougall has continued to listen to the voices on a periodic basis over the past several years. He provided evidence of prior identifications of the voices, which I have appended to this judgment as Appendix A. [19] With respect to Doak, Corporal McDougall testified that he listened to his voice during the course of the investigation 50 to 100 times per day at minimum, and sometimes easily more than 100 times. [20] With respect to Newberry, Corporal McDougall testified that he listened to his voice approximately one to two times per week and several times for each call. [21] With respect to Adam, Corporal McDougall testified that he listened to his voice an average of ten times per day and several times for each call. [22] With respect to Hamm, Corporal McDougall testified that he listened to his voice an average of ten times per day during the last two to three months of the investigation. He listened to each of the calls several times. [23] With respect to Edward Terrance Richards ("Richards"), Corporal McDougall testified that he listened to his voice in 15 to 20 intercepted calls and that he listened to each conversation several times. [24] With respect to Christopher Patrick Wasilewicz ("Wasilewicz"), Corporal McDougall testified that he listened to his voice approximately 12 times per month, and several times for each call. [25] With respect to Robert Charles Higgins ("Higgins"), Corporal McDougall testified that he listened to his voice on eight to ten calls per day, and several times for each call. [26] Finally, with respect to Evegeniy Stefanov Yordanov ("Yordanov"), Corporal McDougall testified that he listened to his voice on eight to twelve calls a week, and several times for each call. [27] As stated previously, Staff Sergeant Goddard had prepared Transcripts A and B of the intercepted calls with the names of the speakers that that took part in each of those conversations. I had these transcripts before me when Corporal McDougall testified. When he gave the names of the persons whose voices he identified in each intercepted conversation, they corresponded with the names of the speakers inserted by Staff Sergeant Goddard. [28] Before I leave the evidence of Corporal McDougall, I must note that I was most impressed with the testimony of Corporal McDougall. Almost five years after he made the original voice comparisons, he listened to intercepted calls in Exhibit 64 and Transcript A and to some of the calls in Exhibit 64B and Transcript B while on the witness stand. Although he has had no opportunity to access the original files since his transfer from headquarters in 2004, with very few exceptions, he was able to positively identify the voices of the persons speaking in those intercepted telephone communications. He made these voice identifications without notes or props. Corporal McDougall pointed out that there were so many intercepted calls in this project that after a while it seemed a like a soap opera. He pointed out that not only were the voices very familiar, but from the intercepted communications he was also able to tell what was happening in the participants' lives. ii. Staff Sergeant Goddard's Evidence [29] Staff Sergeant Goddard has been a member of the R.C.M.P. for the past 30 years. Since 1976, Staff Sergeant Goddard has had experience investigating marihuana files with transactions involving amounts ranging from grams to multiple tonnes of marihuana. At the end of April 2001, Staff Sergeant Goddard assumed the duties of monitor room supervisor on Project Exacto-Two. Staff Sergeant Goddard supervised both the investigators and civilian members assigned to the monitor room. He was the person responsible for attributing the names of the various speakers in Transcripts A, B and C. [30] As monitor room supervisor, Staff Sergeant Goddard listened to live calls as they were being intercepted and listened to calls of interest identified by the monitor room investigators and civilian call room monitors. Staff Sergeant Goddard would communicate to Sergeant Harrison information learned from the monitor room. Sergeant Harrison, as the File Coordinator for Project Exacto-Two, controlled the speed, flow and direction of the investigation. [31] Staff Sergeant Goddard was the investigator primarily responsible for proofing the transcripts of the intercepted telephone calls and maintaining the call indexes located at the front of these transcripts. [32] Staff Sergeant Goddard listened to lawfully intercepted telephone communications in the monitor room for a period of three months. In that period, he listened to several thousand phone calls involving the police targets of Project Exacto-Two. [33] After the conclusion of the interceptions on July 17, 2001, Staff Sergeant Goddard continued to listen to the recorded telephone calls over the course of the many months it took to complete the disclosure process. In addition, Staff Sergeant Goddard has continued to listen to the voices on a periodic basis over the past several years. During the voir dire, he provided evidence that he had made prior identifications of the voices in the form of one of the call indexes which precedes the transcripts he maintained. [34] With respect to Zacharuk, Staff Sergeant Goddard testified that he listened to the recorded voice that he presumes was Zacharuk's a number of times during the course of the investigation, including during the proofing of transcripts and disclosure process. He takes the same position with respect to the voices of John Fredrick Legree ("Legree"), Paul Ramo Fabris ("Fabris"), Wasilewicz, Yordanov and Michael James Straumietis ("Straumietis"). Staff Sergeant Goddard indicated that he became familiar with the sound of these voices, and that he was able to identify one voice as that of Zacharuk after hearing only a few words from Zacharuk in person. He likened his familiarity with Zacharuk's voice with that of his brother's voice. He testified that he was "intimately familiar" with the sound of Zacharuk's voice. [35] Staff Sergeant Goddard indicated in relation to Legree's voice that he listened to it throughout the course of the Project, including during the proofing of transcripts and the disclosure process. In addition, Staff Sergeant Goddard was in the unique position to be present at several interviews in which Legree did most of the talking for the preparation and taking of Legree's K.G.B. Statement. [36] Staff Sergeant Goddard indicated in relation to Fabris's voice that he listened to it throughout the course of the Project, including during the proofing of transcripts and the disclosure process. In addition, Staff Sergeant Goddard was in the unique position to be present at several interviews in which Fabris did most of the talking for the preparation and taking of Fabris's K.G.B. Statement. [37] Staff Sergeant Goddard indicated in relation to Wasilewicz that he listened to his voice during the course of the Project, including during the proofing of transcripts and the disclosure process. He also indicated that he had a one-hour meeting with Wasilewicz on October 25, 2002. As a result, he became familiar with the sound of Wasilewicz's voice. [38] Staff Sergeant Goddard indicated in relation to Yordanov that he listened to his voice during the course of the Project, including during the proofing of transcripts and the disclosure process. He also indicated that he had spoken with Yordanov during the course of the preliminary inquiry, and as a result, he was familiar with the sound of Yordanov's voice. [39] Staff Sergeant Goddard indicated in relation to Straumietis that he listened to his voice during the course of the Project, including during the proofing of transcripts and the disclosure process. He also indicated that he had spoken with Straumietis during the course of the preliminary inquiry, and as a result, he was familiar with the sound of Straumietis's voice. [40] Apart from attributing the names to the speakers, on the voir dire Staff Sergeant Goddard also listened to calls that were played to him in court from Exhibits 64 and 64B. Without notes or props of any kind, he was able to identify the speakers on the intercepted calls that were played to him. At the very least, his identification of the speakers in court coincided with the names he had attributed to them in Transcripts A and B. [41] I am satisfied that he undoubtedly had sufficient knowledge of their voices to positively identify Legree and Fabris. I also heard the voices of Legree and Fabris as they spoke on the videotape that was played on the K.G.B. voir dire. [42] In addition to the foregoing, Staff Sergeant Goddard also executed a search warrant on a residence occupied by the accused Zacharuk. In that search the officers located a great deal of drug paraphernalia, a Moore-Clark fish meal bag, some black duffel bags similar to the ones seized from the plane of Richards and flagging tape, similar to the type found on the bags of marihuana that were seized from the plane belonging to Richards on February 22, 2001. iii. Sergeant Harrison's Evidence [43] Prior to his retirement on August 15, 2006, Sergeant Harrison had been a member of the R.C.M.P. for 34 years. He was attached to the Vancouver Drug Section since July 1989, and between June 1999 and May 2002, he was attached to what was then referred to as Unit 5 - the Fraser Valley Drug Section. I accept that he has had extensive experience in relation to wiretap and drug investigations over the course of his career. [44] Sergeant Harrison was the File Coordinator in relation to the investigation which commenced in September 2000. Of all the Crown witnesses called in this trial, he was the person most familiar with all aspects of the investigation and all the targets involved. [45] Throughout the course of Project Exacto-Two, Sergeant Harrison listened to intercepted calls on a daily basis. Each day, he received information from the monitor room as well as from other investigators on the Project. Sergeant Harrison attempted to keep up-to-date on the latest developments in the investigation in order to make critical strategic decisions. He controlled the speed, flow and direction of the investigation. [46] Sergeant Harrison listened to several thousand intercepted communications over the course of Project Exacto-Two, during the disclosure phase, and throughout the past several years. [47] During the voir dire, Sergeant Harrison testified that he had been listening to a voice, which he believes to be that of Shane Jason Schindler ("Schindler"), from early February 2001. He testified that he had heard the voice many hundreds of times. [48] Sergeant Harrison was also played certain calls from Exhibits 64, 64B and 64C in open court. Without notes or props of any kind, his voice identification coincided with those made by Staff Sergeant Goddard in Transcripts A, B and C. Under cross-examination Sergeant Harrison admitted, contrary to what was indicated in Transcript B, that in his view Schindler was not one of the speakers in calls one and two in Transcript B. Sergeant Harrison was of the view, however, that Schindler was one of the speakers in all of the other calls in Exhibit 64B. [49] The calls that were played to Sergeant Harrison in open court from Exhibit 64 were calls 35, 41, 50, 53, 98, 110, 132 and 137. The calls played to him in open court from Exhibit 64B were calls 3, 4, 5, 6, 7, 9, 10, 11, 15, 16, 17, 19, 20, 21 and 25. The calls played to him in open court from Exhibit 64C were calls 1 to 11 inclusive. [50] The voice identification of Schindler as one of the parties to each of these communications was made even more persuasive by the fact that in many of these calls he identified himself as being one of the speakers. He also gave his address and the telephone number of the phones that he was calling from in some of these calls. These addresses and phone numbers were also confirmed when the police executed a search warrant at his home and seized the truck that he was driving. iv. Ms. D.'s Evidence [51] Ms. D. is a detective with one of the municipal police forces. She was Adam's girlfriend and fiancé between the fall of 2000 and January 2002. Because of her position, on Adam's arrest she had no choice but to break off the relationship with him. There is no doubt, however, that she still has deep feelings for Adam. During her testimony before me, she broke down into tears on at least three occasions. On one of those occasions she sobbed, "he was my best friend." She testified that Adam had the nickname "Ace" because he flew helicopters. [52] I am satisfied that she is very well acquainted with Adam's voice. I have no difficulty in accepting her evidence in total. Ms. D. was played a number of calls from Exhibit 64 in open court. On each occasion she had no difficulty identifying the voice of Adam as being one of the speakers. All of her positive identifications of Adam's voice coincided with the identifications made by Staff Sergeant Goddard in Transcript A. Her testimony also corroborated the testimony of Corporal McDougall with respect to his voice identification of Adam's voice. v. Purported Voice Identification of Doak [53] On July 24, 2001, Corporal Sellinger received a telephone call from Doak requesting the return of an exhibit seized on July 16, 2001 - the date of Doak's arrest. Early in the afternoon, Corporals Sellinger and McDougall visited Doak's residence in Chilliwack, British Columbia. Corporal McDougall testified that he went along to assist with the return of the exhibit and, if possible, to obtain voice identification evidence. [54] While returning the exhibit, Corporal Sellinger and Doak engaged in a conversation which lasted between three and seven minutes. Corporal McDougall overheard the conversation. He described Doak's voice as even-keeled, clear, sarcastic, jovial and of average pitch and pace. [55] Corporal McDougall testified that he was able to recognize Doak's voice within a minute of hearing Doak speak. Corporal McDougall testified that he recognized the voice from his time in the monitor room during the investigation. [56] Following the return of the exhibit to Doak, Corporal McDougall attended at the R.C.M.P. Langley sub-office and listened to calls intercepted on channels 50, 5, 77, 14, 96, 60 and 46 during the investigation. Corporal McDougall testified that he was satisfied that the voice he was listening to was indeed that of Doak. [57] When Corporals Sellinger and McDougall attended at Doak's residence, Doak was free on bail after his arrest in connection with this matter. He had retained counsel in relation to this matter and had spoken to counsel at an earlier point in the process. [58] During the voir dire, Corporal McDougall attributed lines of dialogue on phone intercepted recordings to Doak. From Exhibit 64, Corporal McDougall identified the voice of Doak in the following calls: 1 to 21, 23 to 38, 40 to 43, 45 to 51, 53 to 82 and 84 to 140. [59] Corporal McDougall testified that he had identified the voice on the calls as Doak's voice on several prior occasions. He testified that there was consistency between his earlier identifications and the identifications he made on the voir dire. The Crown argued that the prior identification evidence is properly admissible evidence setting out the history and scope of the identification of Doak's voice. [60] The Crown also pointed to the fact that during his K.G.B. statement, Legree identified a voice as that of Doak in calls 1, 2, 12, 16, 34, 46, 67, 72, 86, 91 and 136 from Exhibit 64. [61] Further, the Crown adduced evidence to show that Fabris identified the voice of Doak in calls 34, 85, 91 and 117 from Exhibit 64 during his K.G.B. statement. [62] Crown counsel have also adduced circumstantial and other direct evidence which, they claim, establishes that Doak's voice was found on the recorded phone calls played during the voir dire. In support of this claim, they have submitted the following: - In Telephone Call #60 (Exhibit 65, Volume 1), which pursuant to the Admissions of Fact filed as Exhibit 141 in this trial correctly intercepted phone line 604-799-1449 associated to Doak, Doak self-identifies by providing this phone number to a person named Lee. 604-799-1449 is the phone line which intercepts the following calls: Exhibit 65 - 7, 8, 9, 10, 13, 14, 15, 16, 17, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 88, 89, 90; and Exhibit 65B - 1, 2, 3, 4, 5. - On July 16, 2001, upon the arrest of Doak, Corporal Sellinger proofs the following phone lines: 604-861-4384; 604-799-1537; 604-799-0961 (Exhibit 65 - Calls 90-93, 94-100, 102-140); 604-799-1028; and 604-799-1674. - In the documents identified by Legree during the course of his K.G.B. Statement (Exhibit 135 at Trial), page 16 contains a series of phone numbers. Two of Doak's phone numbers are contained on this document: 799-0961; and in coffee table code, 799-1674 (6047.119436). - Legree and Fabris both identify photographs of Doak. - As indicated in paragraph 56 above, Legree identifies several phone calls as involving Doak. - As indicated in paragraph 57 above, Fabris identifies several phone calls as involving Doak. - Upon his arrest, Doak is found in possession of a document in the name of Joseph T. Wowk. - In telephone Call #91 (Exhibit 65, Volume 2), which pursuant to the Admissions of Fact filed as Exhibit 141 in this trial correctly intercepted phone line 604-799-0961 associated to Doak, Doak self-identifies by providing this phone number to Wasilewicz. - The content of Call #91 is also compelling: it is apparent that the incident Doak and Wasilewicz are discussing is the Stahl arrest and seizure on April 5th, 2001 - the description is consistent with the Crown evidence. There is a reference to the D.E.A. - In Call #116 (Exhibit 65, Volume 2), which pursuant to the Admissions of Fact filed as Exhibit 141 in this trial correctly intercepted phone line 604-799-0961 associated to Doak, the Crown witnesses identified the voices of Doak, Stahl, and Yordanov - the call takes place at 1327 hours. On the date of the call, May 17, 2001, Sergeant Seward was conducting surveillance. In providing evidence at trial, he stated: at approximately 1300 hours on May 17, 2001, police attend at the Ramada Inn at 36035 North Parallel Road, in Chilliwack BC to set up surveillance for an anticipated meet; a red Ford Excursion BCL JTA 147 is parked at the west end of the parking lot; approximately one half hour later, a blue Chevy Suburban arrives and parks next to the red Ford Excursion; the vehicles remain there for about one half hour; the driver of the red Excursion is identified as Sean DOAK - Seward had previously conducted surveillance of DOAK approximately 5 times; the driver and lone occupant of the blue Suburban is identified as Evegeniy Stefanov Yordanov - Seward had previously conducted surveillance of Yordanov approximately 10 times. vi. Purported Voice Identification of Newberry [63] On September 5, 2003, Corporal McDougall and Staff Sergeant Goddard paid a visit to the Surrey Provincial Courthouse. Corporal McDougall was aware that Newberry had a court appearance in relation to the matter now before this court. [64] While at the Surrey Provincial Courthouse, Newberry engaged Crown Counsel in a conversation regarding the reason for the court appearance. The conversation between Newberry and Crown Counsel occurred while the two walked between courtrooms, and lasted between five and seven minutes. Corporal McDougall overheard the conversation and in testimony at the voir dire described Newberry's voice as "a whisky voice", raspy, clear, quick paced, even-keeled and "a little deep." [65] Corporal McDougall testified that he recognized Newberry's voice within a minute of hearing him speak and was able to associate that voice with one he had heard on the intercepted phone calls during the course of the investigation. [66] Following the court appearance on September 5, 2003, Corporal McDougall testified that he visited either the R.C.M.P. Langley sub-office or the Vancouver office and listened to several intercepted calls. He testified that after listening to those recorded calls, was satisfied that the voice on the recordings was Newberry's. [67] Corporal McDougall also testified that he recognized the voice of Newberry on the following calls in Exhibit 64: 1, 4, 6, 10, 11, 13, 15, 18, 19, 25, 30, 31, 33, 37, 38, 55, 64, 65, 70, 71, 78, 82, 88, 90, 123, 127, 128, 130, 134, 138 and 140. [68] Corporal McDougall testified that he had identified the voice on the calls as Newberry's voice on several prior occasions. The Crown argued that the prior identification evidence is properly admissible evidence setting out the history and scope of the identification of Newberry's voice. [69] The Crown also pointed to the fact that during his K.G.B. statement, Legree identified a voice as that of Newberry (using, they submit, the nickname "Rhino") in call 1 from Exhibit 64. [70] Crown counsel have also adduced circumstantial and other direct evidence which, they claim, establishes that Newberry's voice was found on the recorded phone calls played during the voir dire. In support of this claim, they have submitted the following: - Legree indicated in his K.G.B. Statement that he had an ongoing and lengthy relationship with Newberry. As indicated in paragraph 67 above, Legree identified Newberry's voice. - Legree indicated that Newberry's nickname was "Rhino". Several of the intercepted communications establish that Newberry is indeed the person referred to as "Rhino". The most compelling example of this connection is found in the following sequence of calls: Call #3 in Binder B (Exhibit 65B); Calls #78, 79, and 80, in Binder A (Exhibit 65). From these calls, it is apparent that there was a disagreement between Doak and Newberry. Legree discusses this disagreement in his K.G.B. Statement. Of note in Call #78 is that Newberry refers to Doak as Sean. - In cross-examination of Sergeant Harrison, counsel for Westle brought out the fact that Newberry was keeping Westle to himself. Throughout the intercepted communications, there is reference and discussion of "Rhino's guy" in relation to being a mode of transportation. The calls and Sergeant Harrison's evidence establish the identity of Newberry. - The content of several of the intercepted communications are consistent with Legree's description of the events and Newberry's role in those events. - In the documents identified by Legree (Exhibit 135), page 8 is a document containing the name "Byron Newberry". vii. Purported Voice Identification of Adam [71] On January 8, 2002 at approximately 9:00 in the morning, Corporals McDougall and Sellinger visited a residence in Chilliwack, British Columbia. Corporal McDougall was present to assist with the execution of a warrant for the arrest of Adam in relation to the charges before this court. This was the residence of Ms. D. [72] Corporals McDougall and Sellinger knocked on the door of the residence and were greeted by Adam. Corporal McDougall described Adam as looking dishevelled, like he had just woken up. Corporal McDougall advised Adam of his Charter rights and explained the reason for his presence. Counsel for Adam argued that the police did not inform Adam of his right to silence. Corporal McDougall testified that Adam acknowledged that he understood his Charter rights and did not request the opportunity to speak with counsel. [73] Adam asked if he could briefly go upstairs since he was concerned for his dog. For officer safety reasons, the police accompanied Adam. There is some dispute on the evidence as to whether Adam invited the police inside the house, or whether the police invited themselves inside. He was subsequently handcuffed and escorted back to an unmarked police vehicle. [74] Corporal McDougall testified that he did not handle Adam's arrest any differently from other arrests. However, Corporal McDougall testified that while Adam was cooperative, he seemed to be perturbed that the police had woken him from his sleep. During the arrest, Corporal McDougall informed Adam that he would be transported to the Chilliwack detachment and likely released on bail shortly. Counsel for Adam styled the effects of Corporal McDougall's words and actions in a slightly different way, suggesting that Corporal McDougall impressed upon Adam that he believed that speed would be in Adam's best interest, as it would allow him to be processed at the police station and released quickly. I accept that Corporal McDougall may have left the impression that hurrying would be in Adam's best interest, and that Corporal McDougall did not impress upon Adam the potential benefit of contacting counsel immediately. Counsel for Adam also highlighted the fact that the police did not explicitly suggest that Adam could contact his lawyer or another lawyer by phone from the residence. There was some doubt during the voir dire as to whether Adam refused to contact counsel at the residence, or whether he did not have counsel's phone number and did not enquire whether he could contact counsel from the residence. [75] While transporting Adam to the R.C.M.P. Chilliwack detachment, Corporal McDougall and Adam engaged in a conversation which lasted approximately ten to 15 minutes. [76] Upon arrival at the detachment and prior to fingerprinting and photographing Adam, he was provided the opportunity and exercised his right to counsel. While fingerprinting and photographing Adam, Corporal McDougall and Adam engaged in further conversation. Corporal McDougall described Adam's voice as "funny, clear, concise, straight forward, even tempered, cynical and sarcastic." [77] Corporal McDougall testified that he was able to recognize Adam's voice within approximately a minute of hearing Adam speak, and that he identified that voice as one that he had heard on the intercepted phone calls. Corporal McDougall testified that he listened to calls that he believed involved Adam on more than one occasion throughout the entire investigation and in subsequent years. [78] Following Corporal McDougall's dealings with Adam, Corporal McDougall attended at the R.C.M.P. Langley sub-office and reviewed calls intercepted during the investigation. Corporal McDougall was satisfied that the voice he was listening to was indeed that of Adam. [79] During the voir dire, Corporal McDougall testified that he identified a voice as being Adam's voice in calls: 32, 46, 47, 49, 52 and 74 of Exhibit 64. However, after his testimony that day, Corporal McDougall reviewed the calls on that exhibit away from court, where he claims that he was able to benefit from the enhanced audio capabilities of his computer and headphones. Several calls contained in Exhibit 64 were replayed in court, and Corporal McDougall identified Adam's voice in three additional calls: 24, 27 and 39. [80] The Crown submitted that Corporal McDougall had made a complete identification of Adam's voice in the calls on several prior occasions. The admissibility of these previous identifications is one of the issues that I had to deal with on this voir dire, and I will return to this point under my discussion of the law and the application of the law to the facts of this case. [81] Ms. D. identified Adam's voice in calls: 24, 27, 28, 32, 39, 44, 46, 47, 49, 52 and 74 of Exhibit 64. [82] During the voir dire, there was some dispute over Ms. D.'s identification of Adam's voice in one call in particular: call 84 in Exhibit 65. On cross-examination, Ms. D. made a false negative identification of Adam's voice on this recording. On re-examination, she corrected this error. I note that Ms. D.'s initial identification of Adam's voice on this call was laborious, and that she was much more hesitant in her identification of this recording than with others. Further, she had the opportunity to hear the entire recording on re-examination, but only a part of the call on the cross-examination. I make no decision about the weight to be accorded to Ms. D.'s identification evidence at this point, but for the purposes of this voir dire, this incident does not weaken Ms. D.'s testimony with respect to any of the matters on which I might rely on it. [83] The Crown also pointed to the fact that during his K.G.B. statement, Legree identified a voice as that of Adam (using, they submit, the nickname "Ace") in call 46 from Exhibit 64. [84] Crown counsel have also adduced circumstantial and other direct evidence which, they claim, establishes that Adam's voice was found on the recorded phone calls played during the voir dire. In support of this claim, they have submitted the following: - Both Legree and Ms. D. indicate that Adam's nickname was "Ace" (REFERENCE: Call #46 in Exhibit 64; and Documents seized from Zacharuk residence, Exhibit 13 on voir dire, Page 50 [back side]). This is entirely consistent with numerous intercepted communications in which there are references to "Ace". - During the execution of the search warrant at Zacharuk's residence, several documents resembling pay sheets are found which contain the names "Ace" and "Troll". - Three of Adam's intercepted communications are with a person identified as Zacharuk. In other intercepted communications, Adam refers to a person called "Troll", which the Crown submits is Zacharuk. - Although Adam may not self-identify as "Ace", others do identify him as such in the intercepted communications. Although the Court cannot at this juncture rely on these statements for the truth of their contents, the Court can consider the number of times references are made to "Ace" as part of the circumstantial evidence identifying Adam as "Ace". - Legree identifies Adam's photograph as does Ms. D. - Ms. D. also referred to Adam by the name "Tracey". She stated that she understood he had a construction business at one time (REFERENCE: Documents seized from Zacharuk residence, Exhibit 13 on voir dire, Page 29). - Ms. D. testified that Adam was studying to become a helicopter pilot. Legree confirmed this in his K.G.B. Statement (Exhibit 124, TAB 7, Page 51 - Legree was told by Ace that he was taking helicopter flying lessons - during the walk across phase. Ace said he was learning how to "fly a bird".) - At the time of his arrest, documents indicating that he was studying to be a helicopter pilot were located at Adam's residence on Lickman Road. - Ms. D. and Adam were planning to marry on July 20, 2002. Ms. D. and Adam had discussions about their wedding guest list and Adam indicate he would invite his friend "Sean and his brother" but had concerns over whether they [the brothers] would fit in the "limo" because they were "exceptionally large". - During the month of December 2001, Ms. D. and Adam were planning their honeymoon in Mexico. Ms. D. stated that Adam wanted to avoid the States, noting that there are direct flights from Canada to Mexico. Ms. D.'s evidence was that Adam was concerned because Adam had "a friend in jail in the States" and was unsure what the friend may have told authorities. viii. Purported Voice Identification of Zacharuk [85] On July 16, 2001 at approximately 9:00 in the morning, Staff Sergeant Goddard and other members of the R.C.M.P. executed a search warrant on a residence in Chilliwack, B.C. After announcing their presence, Staff Sergeant Goddard and the other members of the R.C.M.P. entered the residence. Zacharuk presented himself to the officers at the top of a staircase in the residence. Staff Sergeant Goddard advised Zacharuk that he was under arrest and provided him with his Charter rights from a police issued card. Zacharuk acknowledged understanding these rights and indicated that he did not want to call a lawyer immediately. I accept that he made no request to contact counsel at his residence. [86] Staff Sergeant Goddard testified that he did not treat the arrest of Zacharuk any differently from any other arrest he has conducted. As part of his standard practice, and in conjunction with the necessity to establish identity of the person being arrested, he obtained biographical data from Zacharuk: name, date of birth, where he lived, height and weight. Staff Sergeant Goddard recorded the name, address and driver's licence number. [87] The Crown submitted that Staff Sergeant Goddard was not engaged in obtaining voice identification evidence and that at the time he was not aware that he would be asked to provide voice identification evidence in relation to Zacharuk. Staff Sergeant Goddard testified that he did not become so aware until during the course of the preliminary inquiry in 2003. [88] Staff Sergeant Goddard testified that he recognized Zacharuk's voice as a voice he had heard in the monitor room during the investigation. Staff Sergeant Goddard had listened to calls involving that voice a number of times throughout Project Exacto-Two, including during the proofing of the transcripts and disclosure process. He testified that he has also subsequently listened to calls on a periodic basis. [89] In addition to speaking with Zacharuk at the time of his arrest, Staff Sergeant Goddard testified that he has occasionally overheard Zacharuk in conversations outside the courtroom as this matter has proceeded through the courts. [90] Staff Sergeant Goddard also testified that he recognized the voice of Zacharuk on calls: 7, 22, 39, 44, 52, 83 and 126 of Exhibit 64. [91] Crown counsel have also adduced circumstantial and other direct evidence which, they claim, establishes that Zacharuk's voice was found on the recorded phone calls played during the voir dire. In support of this claim, they have submitted the following: - The evidence establishes that Zacharuk's nickname was "Troll". - Legree discusses "Troll" and his role in the operation. Legree indicates that Troll worked for Doak in the marihuana exportation business (Refer: Exhibit 13 on voir dire - documents located at Zacharuk residence - Page 29). - Legree also indicates that "Troll" did carpentry work for Doak (Refer: Exhibit 13 on voir dire - documents located at Zacharuk residence - Page 29) - In Telephone Call # 6 (Exhibit 65, Volume 1), which takes place on the same date as Call #7, February 13, 2001, Doak mentions to Newberry that "Troll is on the road right now for another thing". - In Telephone Call #7 (Exhibit 65, Volume 1), Zacharuk and Doak discuss an outdoor carwash which is the only carwash, and that the carwash is in close proximity to the "main drag" and the "Overwaitea Foods". It is apparent that Zacharuk is at a location where he is attempting to meet someone. The description provided by Zacharuk of the area is entirely consistent with the police surveillance conducted at Princeton on February 21-23, 2001. - In Telephone Call #8, Richards confirms to Doak "we connected up". - In Telephone Call #34, Richards self-identifies as "Mickey" and asks whether they want to get together tomorrow (February 21, 2001) at 8 o'clock at the Overwaitea. Doak will confirm this later. Richards says we are going to go back to work tomorrow or the next day. - In Telephone Call #36, Legree states that he has Long dispatched for a meet with Mickey the next morning (February 22, 2001) at 11 AM. - On February 22, 2001, police make the following observations at Princeton: 1. 0750 Hours - Police observe a dark blue F150 pickup truck in the area of the Overwaitea Foods - BCL 9846 EN. Sergeant Harrison was familiar with this vehicle - had seen it before - driven by another target on the investigation who was believed to be Doak's brother-in-law - the truck has a canopy with smoky windows that obstruct view into the rear bed area. 2. 0800 Hours - Same blue F150 is now facing north on Bridge Street - which is the main street in Princeton. Directly across is the black Dodge pickup truck which police previously associated to Richards. Constable McLeod observes that the rear bed of the black pickup truck is empty except for a red Tidy Tank fuel container. Both vehicles are running. Shortly after, police observe the blue F150 as it is approaching the entrance to the carwash off of Bridge Street. Prior to entry into the carwash, McLeod notes that both Richards and Zacharuk exit their vehicles and talk. The driver and sole occupant of the F150 is identified as Trevor Zacharuk - Sergeant Harrison was familiar with this individual as he had previously observed him on October 10, 2000. As the black Dodge was about to enter the carwash, the driver is identified as Richards. Both vehicles enter the carwash which only has capacity for 2 vehicles at a time. The carwash door is closed. 3. 0815 Hours - the Black Dodge exits the carwash - there is now a blue tarp partially tied to the rear bed - flapping in the wind - underneath are black bags. The vehicle is followed to the Princeton airport - 0820 Hours. The vehicle parks under the right wing of the Cessna aircraft police had previously observed. Police are unable to see what is occurring at this point. 4. 0835 Hours - The same black Dodge departs the airport - the rear bed of the truck is now empty except for a fuel tank. Continuity is lost of Richards. Subsequently, Richards returns and departs in the Cessna aircraft. The GPS Unit reveals that on February 22, 2001, he traveled into the United States to the Okanogan Legion Airport and then returned to Princeton shortly after 11 AM. - In Telephone Call #47, which takes place on February 22, 2001 at 2119 hours, Adam states to Doak that "Trolly just left with all Mickey's thing". - In Telephone Call #48, which takes place on February 23, 2001 at 0805 hours, Doak asks Fabris whether Mickey is working today as it "looks bad". - On February 23, 2001, police in Princeton make the following observations: 1. 0750 Hours - As they are heading back to Vancouver, police encounter the same blue F150 they observed Zacharuk driving the previous day. The vehicle is heading towards Princeton and is about 5km south of Princeton. Police follow the vehicle into Princeton. The vehicle pulls into the same carwash - the same black Dodge is parked there - there is nothing in the rear bed of the Dodge except the red Tidy Tank. Zacharuk is identified as the driver of the blue F150 - Zacharuk and Richards are seen talking outside their vehicles before they head into the carwash. The carwash door is closed after they enter with their vehicles - 0804 Hours. 2. 0810 Hours - Richards and his black Dodge are seen to depart from the carwash. Richards turns NB on Bridge Street. A large blue tarp now covers the rear bed. It is tied down over something which is slightly higher than the side rails. Richards heads to the airport. Police see him get out and unlock the gate leading to the hangar. Richards enters the area of the hangar - police are not able to see what he is doing. It was quite foggy at the time. - In Telephone Call #49, which takes place on February 23, 2001 at 0841 hours, Doak asks whether Adam has got a hold of Mickey. Adam says he has and there is bad weather where Mickey is but he will be leaving at any time. Doak says "so he seen Trolling?" Adam says yes. Doak asks if Troll is waiting there. Adam says he has already left. - Subsequently, after further surveillance is conducted on Richards, he is arrested as he is about to depart in the Cessna. Police locate 5 black duffle bags containing cannabis marihuana inside the aircraft. These duffle bags are tagged with coloured flagging tape. - Similar black duffle bags, which were tagged in an identical manner, were located on July 16, 2001 at Zacharuk's residence on Ryder Lake Road. He was also found in possession of flagging tape, marihuana packaging material, a Moore-Clark fish feed bag, and various documents with the nickname "Troll" on them. - In Telephone Call #126 (Exhibit 65, Volume 2), Doak calls to speak to Zacharuk - he asks the female who answers the phone "how's Trevor?" Doak then speaks with Zacharuk who indicates that he is not feeling well and cannot work - he can hardly walk. - In Telephone Call #128, which takes place later the same day, Doak indicates to Newberry that he has a problem because there is someone who cannot work. - The timeframe of these last two telephone calls is consistent with the timeframe set out by Legree in his K.G.B. Statement about when the "walk acrosses" resumed. Legree also indicates in his K.G.B. that "Troll" was one of the people who did the walk acrosses. He indicates that the people doing the walk acrosses would carry a big hockey bag. - A hockey bag was located at Zacharuk's residence on July 16, 2001. The expert, Staff Sergeant Brian MacDonald, described the hockey bag as consistent with what he believes is used to transport marihuana into the United States. [92] Staff Sergeant Goddard testified as to the state of undress of Zacharuk when they arrived at the residence to execute the search warrant and arrest him. It was evident that the police had awakened Zacharuk from sleep when they got there to execute the warrants. ix. Purported Voice Identification of Hamm [93] On September 12, 2001 at 8:35 in the morning, Corporal McDougall made a visit to the R.C.M.P. Burnaby detachment holding cells. Corporal McDougall had been advised that Hamm had been arrested on an outstanding warrant in relation to the charges before this court. Corporal McDougall intended to transport Hamm to the R.C.M.P. Chilliwack detachment for fingerprinting and photographing. [94] Corporal McDougall greeted Hamm in the holding cell and advised him of his Charter rights and explained that he was there to transport Hamm to Chilliwack for processing and to obtain voice identification evidence. [95] Hamm acknowledged that he understood his Charter rights and also indicated that he had already exercised his opportunity to speak with counsel. [96] Corporal McDougall testified that within a minute of hearing Hamm speak, Corporal McDougall recognized Hamm's voice as a voice he had heard in the monitor room over the course of the investigation. [97] During the trip to Chilliwack, Corporal McDougall and Hamm engaged in general conversation, including reference to Hamm's study of theology. The travel time between Burnaby and Chilliwack was approximately 50 minutes to one hour, during which time Hamm was, according to Corporal McDougall, "very chatty". [98] Corporal McDougall described Hamm's voice as "forthright, polite, articulate, even-toned and a little quick in the manner of speech." [99] Corporal McDougall testified that after his dealings with Hamm, he went to the R.C.M.P. Langley sub-office and listened to some of the intercepted calls. Corporal McDougall testified that he was satisfied that the voice he heard on the recordings was indeed that of Hamm. [100] During the voir dire, Corporal McDougall testified that he identified a voice as being Hamm's voice in calls: 58, 94, 107, 114 and 119 of Exhibit 64. However, after his testimony that day, Corporal McDougall reviewed the calls on that exhibit away from court, where he claims that he was able to benefit from the enhanced audio capabilities of his computer and headphones. Several calls contained in Exhibit 64 were replayed in court, and Corporal McDougall identified a voice in two additional calls, 45 and 109, as being Hamm's voice. [101] The Crown submitted that Corporal McDougall had made a complete identification of Hamm's voice in the calls on several prior occasions. The admissibility of these previous identifications is one of the issues that I had to deal with on this voir dire, and I will return to this point under my discussion of the law and the application of the law to the facts of this case. [102] The Crown also pointed to the fact that during his K.G.B. statement, Legree identified a voice as that of Hamm in Exhibit 124. [103] Crown counsel have also adduced circumstantial and other direct evidence which, they claim, establishes that Hamm's voice was found on the recorded phone calls played during the voir dire. In support of this claim, they have submitted the following: - The person whose voice was identified by Corporal McDougall is the same person whose voice was identified by Legree - that is the accused before the Court, Hamm. - The call played to and identified by Legree can be compared both in respect of the sound of the voice identified as Hamm as well as in respect of the content of the calls contained in Exhibits 64 and 65. - The person identified throughout the calls by various nicknames such as "Hamm", "Hammer", "Hummer", and "Hambones" is the accused Hamm (REFERENCE: Calls #45, 46, 48, and 58 in Exhibit 64). - At TAB 3, Page 52 of his K.G.B. Statement, Legree states that: 1. Hammer came on board in late September-October 2000; Hammer was a fairly regular customer of the Doak organization (This is evident throughout the entirety of the Intercepted Communications. Also REFERENCE: Documents Identified by Legree, Exhibit 135, Pages 13A, 14, and 16); 2. Hammer would take 3 to 5 duffle bags a week (sometimes more during the helicopter era); 3. Hammer was a Canadian resident and could not always be in the States; 4. a number of different Americans worked for Hammer (REFERENCE: Calls #45, 46, 57, 58, 62, 63 Exhibit 64); 5. there was a female who worked for Hammer by the name of Beth; 6. just after the helicopters ceased to operate (last run December 21st, 2000), Legree met Beth; 7. Beth would take fish feed bags for Hammer (REFERENCE: Calls #39 and 72 Exhibit 64; Legree K.G.B. Statement TAB 6, page 41, Exhibit 124; Documents Identified by Legree, Exhibit 135, Pages 5, and 15; and Fabris K.G.B. Statement Exhibit 131, TAB 3, Page 15 - there were 48 pounds of marihuana to be delivered to Hammer - 8 bags at 6 pounds each); 8. Hammer, through Beth, was the recipient of hockey bags during the final walk across stage (which commenced on Monday, April 30th, 2001) (REFERENCE: Calls #103, 119, 125, and 136, Exhibit 64; Legree K.G.B. TAB 7, Pages 9-10, Exhibit 124); 9. at TAB 3, Page 53 Legree stated Hammer would take other customers' returns. If there were disgruntled customers bringing back returns, Doak instructed Legree to just see Hammer - he would take the product, no questions asked; 10. Hammer told Legree that he had to go to Montana to deliver product and pick up money a couple times; 11. Legree was aware that Hammer was stopped at the border by the US authorities with a significant amount of money heading north to Canada with his girlfriend; 12. Legree also indicated that around May 6, 2001, Hammer had been denied entry into the United States (REFERENCE: Call #94 in Exhibit 64; and Legree K.G.B. TAB 6, Pages 52-55, Exhibit 124). [104] Apart from that, Sergeant Harrison testified that on May 6, 2001, he had received word from Special Agent Bill Schultz of U.S. Customs that a person by the name of Robert Vaughn Hamm was denied entry into the United States of America on May 5, 2001. Sergeant Harrison was also advised by the customs officer that the person by the name of Robert Vaughn Hamm was driving a vehicle with a Washington licence plate. The make of the vehicle and the licence plate was also given to Sergeant Harrison by the customs officer. [105] In Legree's K.G.B. statement he was played call 94 in Exhibit 64. Staff Sergeant Goddard had designated the speakers as Doak and Hamm in this passage in Transcript A. This is a call that took place on May 6, 2001. Legree was not advised of these designations when he was played the intercepted call between Doak and Hamm. Legree had no difficulty identifying Hamm's voice. When asked to explain what was said in the call, Legree stated that Doak was talking to Hammer about being denied entry into the United States of America. As stated previously, from the evidence adduced at this trial, I find that Legree was very familiar with Hamm's voice. [106] Sergeant Harrison testified that as a result of an intercepted communication between Doak and Hamm arranging a meeting, he was part of a surveillance team that went to the meeting place. He testified that when he got to the meeting place on May 7, 2001, he saw both Doak and Hamm. Doak was driving his distinctive red Excursion and Hamm was driving the vehicle with the same Washington licence number that was described by Special Agent Schultz. x. Purported Voice Identification of Schindler [107] On July 16, 2001, Sergeant Harrison visited the Kelowna police detachment to speak with Schindler, who was in custody in relation to this matter. After providing Schindler his Charter rights, Sergeant Harrison had a conversation with him that lasted a few minutes. [108] Sergeant Harrison testified that three-quarters of the way through the conversation, he recognized Schindler's voice as a voice he had heard in the intercepted communications over the course of the investigation. Sergeant Harrison described Schindler's voice as "deep" and indicated that he was very familiar with the sound of his voice. [109] Sergeant Harrison testified that he recognized a recorded voice as Schindler's in calls: 35, 41, 50, 53, 98, 110, 132 and 137 of Exhibit 64; calls: 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 16, 17, 19, 20, 21 and 25 of Exhibit 64B; calls: 1, 2, 3, 4, 5, 6, 7, 8 and 9 of Exhibit 64C; and stated that police conducted a line verification for both Schindler's home and cell phone numbers in relation to calls 10 and 11 of Exhibit 64C. In addition, the Crown contends that Schindler self-identified a number of times in Exhibit 64C. The recorded voice mentioned such things as: his address, his phone number, his name his location in Kelowna and other identifiers. [110] Sergeant Harrison testified that Schindler's nickname was "Pink" or "Pinky Dinky". Sergeant Harrison's voice identification was identical to the identification made by Staff Sergeant Goddard in Exhibits 64, 64B and 64C. There were two exceptions: calls 1 and 2 in Transcript B. [111] Sergeant Harrison had an opportunity to hear Schindler speak on his arrest. At that time he testified that he was immediately able to recognize his voice as being the person referred to as "Pink" in Transcripts A, B and C. Sergeant Harrison was also able to hear Schindler at his sentence hearing after his plea of guilty in this matter. That took place outside of the courtroom on March 24, 2003. At that time, Schindler and Sergeant Harrison had a rather lengthy conversation. [112] As mentioned previously, in many of these intercepted calls, especially those recorded in Transcript C, Schindler identified himself, gave his telephone numbers and his address. The line verification also confirms the telephone numbers that he was using at the time. xi. Purported Voice Identification of Richards [113] Permit me to say at the outset that I have some difficulty understanding the position of the defence on the issue of the identity of Richards. Richards was living in the small community of Princeton. Corporal McLeod, another police officer, knew who he was. He and other members of the Princeton detachment knew where Richards lived. Corporal McLeod identified his picture from a photo that was found on his plane. After Richards' arrest, and while in handcuffs, he was found to be destroying a deposit slip in his name for $5,000 that was deposited into his credit union account the day before his arrest. Richards pleaded guilty to the charges involving the seizure of the marihuana from his plane. [114] On July 27, 2001, Corporal McDougall attended the prisoner's cell block at the Chilliwack Courthouse where he held a ten minute conversation with Richards after first telling him that he was there to compare his voice with those obtained on the intercepted telephone conversations. Corporal McDougall testified that within a minute of hearing his voice, he was able to identify Richards's voice as being the voice of the person referred to as "Mickey" on the intercepted telephone conversations. After hearing Richards's voice, Corporal McDougall went back to his office and listened to the intercepted telephone conversations to confirm that the voice he had listened to earlier that day was in fact Richards's voice. Corporal McDougall's voice identification coincided with the voice identification made by Staff Sergeant Goddard in Transcript A. [115] It is also significant that in some of the intercepted calls which Corporal McDougall and Staff Sergeant Goddard identified Richards, Richards himself identified himself as Mickey. xii. Purported Voice Identification of Higgins [116] On September 6, 2001 Corporals McDougall and Brown visited Higgins at the Super Garden Centre on Peardonville Road in Abbotsford, British Columbia, ostensibly for the purpose of returning some computer equipment. One of the main purposes of the visit was, however, to hear Higgins's voice. When they got to the Garden Centre, Higgins engaged in a five to ten minute conversation with Corporal Brown. He complained of harassment by the police and used quite a few profanities to make his point. During this exchange, Corporal McDougall testified that he was able to match Higgins's voice with one of the voices that he had heard in the intercepted communication between February 2001 and July 2001. Corporal McDougall also testified that during that time period he would hear Higgins's voice on the intercepted telephone conversations eight to ten times a day. [117] After hearing Higgins's voice that day, Corporal McDougall returned to his office and confirmed that the voice that he intercepted between February 2001 and July 2001 was in fact the voice of Higgins. This voice identification was identical to the voice identification made by Staff Sergeant Goddard in Transcript A. xiii. Purported Voice Identification of Yordanov and Straumietis [118] On September 6, 2001 Corporals McDougall and Brown met with Yordanov, ostensibly to return some exhibits to him. According to Corporal McDougall, Yordanov was quite "taken" with Corporal Brown and spoke to her freely for about 15 to 20 minutes. During this conversation Corporal McDougall was instantly able to place the strong Slavic accent as being the one on the intercepted telephone communications during the period from February 2001 to July 2001. According to Corporal McDougall, Yordanov's voice was intercepted about eight times a week during that period. Corporal McDougall's voice identification was identical to the voice identification made by Staff Sergeant Goddard in Transcript A. [119] Staff Sergeant Goddard testified that he had a chance to listen to and compare the voice of Michael James Straumietis and Evegeniy Yordanov at the Surrey Courthouse. He testified that this meeting took place during the preliminary hearing in this case. On that occasion they both approached himself and Sergeant Harrison and had a ten minute discussion with them. Staff Sergeant Goddard testified that he was able to identify those voices as the voices that he had heard on the intercepted telephone calls in the monitor room and those that are marked in Transcript A. xiv. Purported Voice Identification of Wasilewicz [120] Corporal McDougall testified that at around 8:15 a.m. on January 8, 2002, he met Wasilewicz at the counter of the Chilliwack R.C.M.P. office. At the time, Wasilewicz was with his lawyer. Corporal McDougall took him to the back of the Chilliwack detachment to fingerprint him. During the fingerprinting process Corporal McDougall heard Wasilewicz speak and within one minute of hearing him speak he recognized his voice as one of the voices on the communications intercepted between February 2001 and July 2001. [121] Corporal McDougall testified that over that period of time, he had the opportunity to hear Wasilewicz speak on the intercepted communication about one dozen times per month. Corporal McDougall testified that when Wasilewicz did speak he usually spoke to Doak. He described Wasilewicz's conversations with Doak as being very long because they seemed to be good friends. Corporal McDougall's voice identifications of Wasilewicz were identical to those made by Staff Sergeant Goddard in Transcript A. [122] In addition, Staff Sergeant Goddard testified that he spoke to Wasilewicz when he was in custody in West Vancouver. At that time, he was in custody with respect to the seizure of a large amount of money. This meeting took place at the West Vancouver cells on October 25, 2002. Although Wasilewicz was not prepared to speak to Staff Sergeant Goddard about what he wanted to speak to him about, they did converse from 1:00 p.m. to 2:00 p.m. on that date. Staff Sergeant Goddard testified that he was satisfied that the person he was speaking to on that occasion was in fact the person he identified as Wasilewicz in Transcript A. xv. Purported Voice Identification of Legree [123] Corporal McDougall testified that on December 8 and 9, 2003 he transported Legree because he was concerned for his safety. During the transport he and Legree spoke to each other. During that conversation, he was able to identify Legree's voice as being one that he had heard in the intercepted telephone conversations over the period from February 2001 to July 2001. [124] Corporal McDougall testified that around the beginning of the intercept period, Legree's voice was intercepted a couple of times a day. Shortly before his arrest, his voice was intercepted approximately 12 times a day. [125] In addition, Legree identified his own voice in the intercepts that were played to him in his K.G.B. statement. From my comparison of his voice in his nine hour videotaped voir dire with his voice when he appeared before me, I am satisfied that Corporal McDougall correctly identified Legree's voice xvi. Purported Voice Identification of Fabris [126] Corporal McDougall testified that he had an opportunity to speak to Fabris when he went out to Matsqui in Abbortsford to see him in November and December 2003. His conversations with Fabris lasted approximately one hour. He described Fabris's low, monotone voice and testified that he had no difficulty matching Fabris's voice with one of the voices he heard on the intercepted telephone conversations between February 2001 and July 2001. [127] Corporal McDougall testified that Fabris's voice was not intercepted on many occasions, but that it was intercepted a few times in April 2001. The voice identification made by Corporal McDougall was identical to the voice identification made by Staff Sergeant Goddard in Transcript A. I also had an opportunity to hear Fabris in his six hour videotaped K.G.B. statement and to compare that voice with his voice when he testified before me. I gave notice to the defence that I found that the voice of Fabris was correctly identified by Corporal McDougall. xvii. Purported Voice Identification of Stahl [128] Corporal McDougall testified that although he never met Stahl he was able to identify his voice because Stahl identified himself in one of the intercepted telephone conversations. In addition, Auburn Police Department Detective William J. Sundqvist of the Valley Narcotics Enforcement Team also identified Stahl's voice in call number 101. Detective Sundqvist was able to identify Stahl's voice because he had had four interviews with him, some lasting as long as four hours. E. VOICE IDENTIFICATION i. The Law [129] The central question surrounding voice identification in this case is whether the Crown's voice identification evidence should be admitted or not. As a matter of evidence, counsel for the defendants have suggested that the Crown failed to establish a foundation for the voice identification evidence, and that as a result, the voice identification evidence should not be admitted at trial. Counsel have also suggested that the in-court voice identifications, primarily those made by Corporal McDougall, are deeply flawed, and that this court should not allow witnesses to refer to prior voice identifications, suggesting that to do so is merely to bolster testimony. Finally, there has been a fair amount of confusion surrounding the standard of proof required for identification evidence. [130] This has already been a very long trial, and one with more than its fair share of confusing and confounding issues. I will take this opportunity to lay out the law of voice identification. [131] Voice identification presents difficult problems for courts that have traditionally been more accustomed to dealing with visual identification problems. Yet voice identification is not a new issue. Given the increased use of telecommunication intercepts by police, and the apparent growth of complex crime operations which often straddle jurisdictions, any efforts to clarify the law of voice identification are timely. [132] Before addressing the substance of this question directly, I will say a few words about the voir dire itself. At the outset, some counsel suggested that a voir dire was not necessary to resolve the issue of voice identification. In R. v. Grabowski (1983), 8 C.C.C. (3d) 78 (Que. C.A.), aff'd [1985] 2 S.C.R. 434, the Court of Appeal found no fault in the trial judge's decision not to hold a voir dire to deal with police voice identification on a wiretap. This decision was followed in R. v. Piché (1999), 136 C.C.C. (3d) 217 (Que. C.A.) ("Piché"). [133] Holding a voir dire on issues relating to voice identification and intercepted communications is certainly not without precedent. The Ontario Court of Appeal, sitting as a five member court, considered the role of a voir dire in voice identification circumstances in R. v. Parsons (1977), 17 O.R. (2d) 465 (C.A.), aff'd [1980] 1 S.C.R. 785 ("Parsons"). In the final result, the court held that a voir dire was not necessary to determine voice identification questions, but only to resolve issues precedent to the obtaining of those voices. I am further aware of the problems posed by the "procedural quagmires" that often arise in cases of intercepted communications, wherein courts are called on to subdivide issues that may rightly be resolved during the trial itself: see R. v. Garofoli, [1990] 2 S.C.R. 1421 at 1445. However, I decided to hold a voir dire in this instance because of the constitutional issues put in play, and to deal with counsel's concerns that some voice identification evidence is inadmissible. I will now address those latter concerns, before moving on to the constitutional questions. (a) Foundation [134] Counsel for the defendants Zacharuk and Newberry suggested that voice identification evidence is not admissible since the Crown has not furnished sufficient foundation for this evidence. They draw my attention to R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.) ("Portillo"), quoting in particular para. 42, in which the court states: I agree with the trial judge that there was no foundation for the opinion evidence advanced by Mrs. Thrasher. For that reason, it was not admissible evidence. In that case, the Crown had called one of the victim's neighbours to make a voice identification of one of the accused. However, the witness's familiarity with the voice of the accused was based solely on one, very brief prior encounter. The trial judge concluded on a voir dire that there was no foundation for the voice identification evidence. The Court of Appeal agreed with the trial judge's position, but found that because of the lack of foundation and the inherent danger of voice identification evidence to have a prejudicial effect on a jury, the trial judge should have issued a stronger warning than he did. On the particular facts of that case, the trial judge should have told the jury to disregard the voice identification evidence in its entirety. In that case, the voice identification evidence was particularly tenuous, and was offered as corroboration of the Crown's theory in a case already overwhelmed with circumstantial evidence of one form or another. [135] The importance of establishing a proper foundation before evidence is admitted at trial is well understood. The act of balancing the probative value of evidence against its possible prejudicial effect is one of the most important functions of a trial judge. Yet if I am asked to hold that Portillo stands for the proposition that voice identification evidence based on brief prior contact must always be excluded, I cannot agree. Courts must consider the contextual factors that influence voice identifications, including the duration of contact and a host of other factors. Indeed, this is the dominant approach that courts have taken to this issue. [136] In R. v. Williams (1995), 23 O.R. (3d) 122 (C.A.) ("Williams"), the court held that when evidence of voice identification is given by a police officer or a lay person, they are testifying as witnesses of fact based on their familiarity with the voice. The failure of the officer to testify to certain factors such as any peculiarity or distinctiveness of the accused's voice merely goes to weight, not to admissibility. In reaching its decision in Williams, the court relied on R. v. Braumberger (1967), 62 W.W.R. 285 (B.C.C.A.); and R. v. Robb (1991), 93 Cr. App. R. 161 (Eng. C.A.) at 168. [137] At 126-127, Finlayson J.A. laid out some of the factors that defence counsel had suggested might influence the weight attached to evidence: From these authorities he derived the proposition that while evidence of voice identification is admissible by persons who are not qualified as experts, the weight to be attached to the evidence depends on a number of factors. He submitted some of them which he seemed to regard as mandatory in the case on appeal. These factors from American authorities such as United States v. Vitale, 549 F. 2d 71 (8th Circ., 1977); People v. Hayes, 337 N.W. 2d 905 (Mich. App., 1983), and United States v. Orozco-Santillian, 903 F. 2d 1262 (9th Circ., 1990), include: (1) Is there direct or circumstantial evidence that the speaker is in fact the appellant? (2) Are the events following the conversations in which the appellant was identified consistent with the speaker being the appellant? For instance, in the case on appeal, a meeting was arranged but the appellant never carried through with it. (3) Is there some peculiarity or distinctiveness to the appellant's voice that would make it more readily identifiable? Are there "internal patterns" or patterns of speech, distinctly associated with the appellant? (4) Did the speaker disclose facts known by the appellant or, more compelling, known only to the appellant? (5) Are the "context and timing" of the conversation consistent with the theory that the speaker is the appellant? Or, on the other side of the coin, was the identity of the speaker tainted by the witnesses's expectation that he would be the appellant? [138] In addition to these factors, I find the statement of the law in R. v. Chan (2001), 51 W.C.B. (2d) 225, 2001 BCSC 1180 ("Chan") to be helpful in addressing the criteria which courts should consider in voice identification situations. I included the following passage, found at paras. 26-32 in Chan, in my earlier ruling (see R. v. Adam, 2006 BCSC 200), and reproduce it now here: 26 This brings the court to the issue of voice identification. I note that the Crown may prove identification of the accused as a member of the conspiracy by his own acts as well as by his declarations. In other words, I agree with the Crown submission that voice identification is not the only way to prove membership in a conspiracy. As well, I note that while the Crown must prove identity of the accused as an offender beyond a reasonable doubt, it need not prove voice identification beyond a reasonable doubt. The evidence of voice identification is simply an individual item of evidence going to the identity of the accused and, accordingly, the standard of proof is by a preponderance of evidence; see R. v. Rumbaut, supra, at p.8, para. 15. 27 The Crown alleges that the wiretap recordings prove these accused persons were members of a conspiracy. The Crown did not provide spectrographic analysis of the voices to prove identity. Rather, the Crown relies on the evidence of Constable Rossett in respect of the voice identification of Morales, and Constable Chan in respect of the voice identification of Tran and Chan. 28 The Ontario Court of Appeal made it clear in R. v. Williams (1995), 98 C.C.C. (3d) 160, that a person testifying that he or she identifies the voice recorded is doing so on the basis of familiarity with that voice, not as an expert in voice identification. Courts do not require that the Crown provide voice analysis by an expert. Rather, the reliability of the identification is a matter of weight. The factors that may undermine the reliability of a person's voice identification undermine the strength of that identification: see Williams, at p. 166. In R. v. Rumbaut, supra, at para. 47, the court notes the several methods by which a party to a private communication may be identified: 1. A lay witness familiar with the voice of the accused may express an opinion as to the identity of the parties in the communication even where the witness heard the tapes before listening to the person. 2. Self-identification on the recording itself (use of address or name that identifies the speaker). 3. Physical surveillance that coincides with the audio-recording to establish the identity of the speaker. 4. Direct evidence, such as a person testifying that he or she was with the accused at the time the accused was part of the communication. 5. Spectrographic analysis. 29 The cases provided by counsel for the defence do raise the point that, as with visual identification, the trier of fact must be cautious to convict a person on the basis of the identification. In R. v. Atfield, [1983] A.J. No. 870 (C.A.), Belzil J.A. said the following at para. 3: The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justice through mistaken identity. . . . Honesty is determined by the jury (or judge sitting alone) by observing and hearing the witness, but correctness of identification must be found from evidence of circumstances in which it has been made or in other supporting evidence. 30 In R. v. Reid, [1993] O.J. No. 3283 (G.D.), at para. 23 Farley J. cites the following: In the same manner that visual identification may be wrong, so may voice identification. In fact, voice identification may be even more subject to error than visual identification because of the limited number of distinguishing characteristics and the fact that voices change with variations in mood. It may be very easy to recognize the voice of a famous person, but describing that voice to another may be virtually impossible. 31 My reading of the cases provided reveals that a number of factors will assist the trier of fact assess the reliability of the witness' identification of the accused's voice: a) Are there distinctive or distinguishing features of the voice: see R. v. Reid, R. v. Savoy, [2000] B.C.J. No. 695 (S.C.), R v. Gulstad, [1994] Y.J. No. 44 (Terr. Ct.), R. v. Latchana, [1997] O.J. No. 2330 (G.D.)? b) Did the party to the communication identify him or herself? c) Did the party to the communication provide information that would allow the listener to identify him or her? d) Was there evidence of physical surveillance at the same time as the private communication to allow the speaker to be identified? e) Did the witness hear the voices under the same conditions, or was the emotional state different in each situation: R. v. Reid? f) What is the length of time during which the witness was able to hear the voice: R. v. Gulstad, R. v. Williams and R. v. Savoy? g) Was there any reason for the witness to focus on the voices? h) What was the condition of the witness when he or she heard the voices, alert or groggy: R. v. Gulstad? i) What was the length of time between the times the witness heard the voices: R. v. Gulstad? j) Were there any contradictions in the description given by the witness - did the witness testify that the accused spoke with an accent when he or she did not: R. v. Parsons, [1999] Y.J. No. 3 (Terr. Ct.), R. v. Narsing, [1996] A.J. No. 1263 (Prov. Ct.)? k) Did anything compromise the identification process - was the witness assisted in identifying the voice, or was the witness' opinion tainted by the expectation that the voice was that of the accused: R. v. Parsons, and R. v. Williams? l) Is the witness' opinion contradicted: R. v. Williams? 32 As with visual identification, voice identification suffers from the frailty that a witness may simply be mistaken. This is not a question of the honesty or integrity of the witness. However, honesty and integrity of a witness cannot be relied upon to overcome weaknesses in identification evidence. As Lysyk J. noted in R. v. Savoy, [2000] B.C.J. No. 695 (S.C.): "What requires assessment is a risk that he may be mistaken." [139] In R. v. Bubar (2006), 71 W.C.B. (2d) 174, 2006 NBPC 24 ("Bubar"), the court, beginning at para. 86, listed aspects of voice identification that can be useful in addition to those listed in Chan. The court endorsed factors found in the text Identification Evidence, by David Deutscher & Heather Leonoff, (Toronto: Carswell, 1991) which lists the following, at 134: 1) Was the witness previously familiar with the voice; 2) Was the voice distinctive in any way in such things as tone or expression so as to separate it from other voices; 3) Were the circumstances where the witness identified the voice sufficiently similar to the circumstances where the voice was first heard to lead to the conclusion that the voice would show the same characteristics in both situations; 4) Was the voice disguised; 5) Was there delay in time between exposure to the voice being identified and identification of the voice; 6) The weight to be given the evidence must be considered in light of the stressfulness of the circumstances being judged. [140] In addition, the court also added several other factors, at para. 88: 1) If there is a past acquaintance is that past acquaintance recent[?] 2) Was the witness cautious in drawing the conclusion as to identity at the time the conclusion was drawn[?] 3) What was the physical proximity of the witness to the voice being identified at the time the opinion was drawn[?] 4) What outside auditory influences were there, if any, that may have affected the opinion being drawn by the witness? 5) Was anything present that may have affected the natural sound of the voice being identified and was it a factor that may have affected how the voice was perceived by the witness? 6) Weight is to be attributed to the evidence based on the level of familiarity[.] [141] I note that these factors, while important to consider, all deal with issues of the weight to be accorded to voice identification evidence. The issue of admissibility is not directly addressed. However, the development of analytical guidelines in assessing voice identification evidence has aided courts in determining when voice identification evidence should be rightly excluded for having a prejudicial effect sufficient to justify its exclusion. Courts are aware of the seductive effect of voice identifications, particularly identifications by honest and convincing witnesses who may nevertheless be mistaken in their identifications. The issue of determining whether the methodology followed in voice identification is sufficient to expose any potential biases or sensory limitations is an important one for courts to consider. Once a trial judge is convinced that there are no systemic shortcomings that are likely to prejudice the proceedings - such as might occur if a voice identification witness had practically no experience with an accused's voice - any other questions of methodology properly go to the weight attached to the identification, and not to admissibility. (b) Prior Identification Exception [142] Defence counsel urged me to rule that the prior identifications of the voices made by Corporal McDougall should not be admitted into evidence. The Crown has introduced these prior voice identifications by Corporal McDougall in Appendix A, appended to this decision. The Crown has urged me to find that Corporal McDougall's previous statements are admissible under the prior identification exception to the hearsay rule. [143] The logical first step is to consider whether, in fact, Corporal McDougall's previous statements actually fall within the definition of hearsay. [144] In R. v. Tat (1997), 35 O.R. (3d) 641 (Ont. C.A.) ("Tat"), Doherty J.A. considered the issue of prior inconsistent statements in careful detail. This judgment has been quoted with approval by the Supreme Court of Canada in R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40 at paras. 220-221, and is a common touchstone in any judicial consideration of prior inconsistent statements. [145] In Tat, the Crown argued that a witness had adopted a prior statement at trial or, in the alternative, that the prior statements were admissible under the "prior identification" exception to the hearsay rule. The Crown also argued that the out-of-court identification was admissible for its truth under the principled approach to hearsay. Doherty J.A. dismissed the first line of argument. Having reviewed the exchanges between the witness and the Crown at trial, he found the Crown's position untenable. The witness had not admitted the accuracy of his prior statements, nor had he accepted their truth. However, it remains that any statement adopted by a witness at trial becomes part of the witness's evidence and is admissible for its truth. Further, a witness may accept some, all, or no part of a prior statement. The determination of what part has been adopted, if any, lies with the trier of fact. [146] In this voir dire, Corporal McDougall adopted his prior identifications. Let me briefly comment on the meaning of "statement" as used in Tat, and as applicable to the case before me. In R. v. Hébert (1990), 60 C.C.C. (3d) 422 at 425, the Quebec Court of Appeal noted that in the criminal context, the word "statement" can refer to written or oral communication setting out facts. Accordingly, there is no reason to regard Corporal McDougall's prior identifications as other than prior statements. [147] Turning back to Tat and the second prong of the Crown's argument in that case, Mr. Justice Doherty first noted, at 655, that "the current jurisprudence does not recognize any hearsay exception which admits prior statements of identification where the maker of the statement denies making the previous identification and testifies that the accused are not the persons who committed the offence." He also suggested that prior identification statements that are admitted at trial often do not involve a hearsay use of the out-of-court statements. Building on the extant Canadian case law, Mr. Justice Doherty identified two situations where out-of-court statements of identification might be admitted: 1) where the witness identifies the accused at trial, and 2) where the witness cannot identify the accused at trial, but testifies that he or she previously gave an accurate description or made an accurate identification. [148] In discussing the first of these situations at 656, Doherty J.A. commented on the relationship between identification evidence and prior consistent statements: Clearly, the evidence of the prior descriptions given and the prior identifications made by the identifying witness constitute prior consistent statements made by that witness. Generally speaking, evidence that a witness made prior consistent statements is excluded as irrelevant and self-serving. However, where identification evidence is involved, it is the in-court identification of the accused which has little or no probative value standing alone. The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification. If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment. Where a witness identifies an accused at trial, evidence of prior identifications made and prior descriptions given by that witness do not have a hearsay purpose. [149] The second situation identified by Mr. Justice Doherty deals with instances where the witness cannot identify the accused at trial, but can assert that he or she made an earlier accurate out-of-court identification. After reviewing R. v. Swanston (1982), 33 B.C.L.R. 391 (C.A.), various American authorities, and a number of Commonwealth authorities, Mr. Justice Doherty found that evidence of prior identifications can be admissible when a witness also testifies that the person earlier identified in the out-of-court setting was the person who committed the crime. He further found that there is no exception to the hearsay rule for prior identifications and refused to create such an exception. [150] In Tat, Mr. Justice Doherty noted that prior identification in the first situation did not constitute a hearsay use. At 654-655 he remarked: Out-of-court statements identifying or describing the perpetrator of an offence are sometimes admitted both through the testimony of the maker of the statement (the identifying witness) and the testimony of persons who heard the prior description or witnessed the prior identification. These statements have been classified by some as hearsay and are said to be admissible under a prior identification exception to the hearsay rule[.] Other authorities contend that, while evidence of out-of-court identification is admissible in some circumstances, it is admitted as original evidence and does not engage any exception to the hearsay rule[.] Regardless of which characterization is preferred, none of these authorities suggest that all out-of-court statements of identification are admissible as substantive evidence. There is high authority to the contrary: Sparks v. R., [1964] A.C. 964 at p. 981 (P.C.). In my view, and contrary to what I suggested in R. v. Toten, supra, the circumstances in which such statements are admitted do not involve a hearsay use of the out-of-court statements. [151] I note in particular that Mr. Justice Doherty clearly demarcated the use to which out-of-court identification statements could be put and that the prior case law did not countenance their use as substantive evidence. The above passage was recently quoted with approval by the British Columbia Court of Appeal in R. v. Campbell (2006), 223 B.C.A.C. 164, 2006 BCCA 109 at para. 91. [152] In the matter before me, Corporal McDougall made identifications in court. In accordance with the law as set out in Tat, evidence of his prior identifications is admissible to outline the nature of the identification process. Counsel may use these earlier identifications to dissect the conditions under which Corporal McDougall made the identifications. However, these identifications cannot be used merely to bolster the identification evidence that Corporal McDougall gave during the voir dire. [153] This consideration brings me to the well-known prohibition on prior consistent statements. In Tat, at 656-657, Doherty J. quoted with approval Professor Libling's article "Evidence of Past Identification", [1977] Crim. L.R. 268 at 271-272, referring to evidence of prior identifications made when a witness identifies an accused at trial: There is no hearsay problem with this kind of evidence. It is not admitted to prove the truth of the earlier identification, but to add cogency to the identification performed in court. As a general rule, a witness is not permitted to testify as to his own previous consistent statements because they add nothing to the in-court testimony. But evidence of previous identification strengthens the value of the identification in court by showing that the witness identified the accused before the sharpness of his recollection was dimmed by time. Furthermore it is important, in assessing the weight of the identification in Court, to know whether the identifying witness was able to identify the accused before he was aware that the accused was the person under suspicion by the police. [154] As I understand the law, there are three reasons why oath-helping testimony should be prohibited. First, previous consistent statement evidence is not probative of the truth of the statement. Second, even if the evidence is probative, it is often of marginal value in light of the court resources that are triggered by its introduction. Third, if offered for its truth, the statement is hearsay. However, there is an exception to this prohibition to allow prior consistent statements to support a witness's identification at trial. Evidence of prior identification can be used to assess the reliability of the identification. [155] Prior consistent statements supporting an identification can be relevant to the trier of fact's task of adequately evaluating the manner in which the identification was made. This will in turn help the trier of fact to establish some benchmark against which to assess the credibility to be attached to given evidence. It can be instructive for the trier of fact to know the conditions under which an identification had previously been made. A number of questions will likely be relevant, including how soon after the crime was committed the identification was made and whether the witness identified an individual from among a sample of comparable individuals. There are differences between the prototypical visual identification referred to by Professor Libling and voice identifications, which are the subject of the matter before me now. The factors relevant when considering a voice identification have been discussed by courts in the recent past: see Chan, Bubar. [156] I have already ruled on the admissibility of voice identification evidence in this case: R. v. Adam, 2006 BCSC 200. In spite of the differences between voice identification and visual identification, these differences do not force me to deviate from the existing law in this case. The decision in Tat provides a solid legal foundation from which to make my decision. [157] In sum, the Crown is allowed to introduce evidence surrounding the conditions under which Corporal McDougall made his prior voice identifications. [158] It is well-established that voice identification may be done by persons familiar with the voices involved and that voice analysis by an expert is not required: Chan at para. 28. Reliability is therefore a matter of weight. (c) Standard of Proof [159] Where the evidence that is sought to be introduced on a voir dire is an inculpatory statement made by an accused to a person in authority, the appropriate standard for identification is proof beyond a reasonable doubt: R. v. B.(K.G.), [1993] 1 S.C.R. 740 at 800. The onus of proof is also the same where the Crown on a voir dire seeks to establish "facts which trigger a presumption with respect to a vital issue relating to guilt or innocence" R. v. Egger, [1993] 2 S.C.R. 451 at 475 ("Egger"). This contrasts with the onus on other voir dires, where the standard is usually a balance of probabilities. [160] In R. v. Terceira (1998), 38 O.R. (3d) 175 (C.A.), aff'd [1999] 3 S.C.R. 866 at 196 Finlayson J.A. stated: As to the issue of the appropriate standard of proof on the voir dire, the trial judge, to the extent that he made findings of fact, applied the standard of a balance of probabilities. This is apparent from his reliance upon the trial decision in R. v. Johnson [(1992), 69 C.C.C. (3d) 395 (Ont.Ct. (Gen.Div.))]. He was correct in doing so. The issue of reliability respecting novel scientific theory or technique relates strictly to a question of the admissibility of evidence where proof on a balance of probabilities is an acceptable standard: see R. v. B.(K.G.), [1993] 1 S.C.R. 740, 79 C.C.C. (3d) 257. This is not an inculpatory statement made by an accused to a person in authority (B.(K.G.), supra ) nor is it the establishment by the Crown of "facts which trigger a presumption with respect to a vital issue relating to guilt or innocence": (R. v. Egger, [1993] 2 S.C.R. 451 at p. 475, 21 C.R. (4th) 186 at p. 202). The same standard, balance of probabilities, applies to the qualification of an expert witness even where the science is novel. The trial judge need not be satisfied that one expert witness is qualified on a balance of probabilities and as to another beyond a reasonable doubt. [161] In Egger, a breathalyser case, the Supreme Court of Canada held that the standard of proof for the service on the accused of a Certificate of Analysis and a Certificate of Qualified Technician within the times prescribed by the Criminal Code was to the criminal standard of beyond a reasonable doubt before the Crown could rely upon the presumption in the certificate as to the blood-alcohol content of the accused's blood. Sopinka J. stated at 474-475: The issue here is very different from a question of admissibility of evidence. The effect of satisfying the burden of proving preliminary facts to the admissibility of evidence is only that the evidence is admitted: it determines neither the weight of the evidence nor the guilt of the accused. This occurs in the next step in the process during which the Crown must satisfy its legal burden. When admission of the evidence may itself have a conclusive effect with respect to guilt, the criminal standard is applied. This accounts for the application of this standard with respect to the admission of confessions (see Ward v. The Queen [1979] 2 S.C.R. 30 at p. 40, per Spence J. for the Court, and Rothman v. The Queen, [1981] 1 S.C.R. 640, at pp. 670, 674-675, per Martland J., for the majority, and at p. 696, per Lamer J. (as he then was), concurring). [162] In Chan, the trial judge stated at para. 26 that "while the Crown must prove identity of the accused as an offender beyond a reasonable doubt, it need not prove voice identification beyond a reasonable doubt." The trial judge relied on the case of R. v. Rumbaut, [1998] N.B.R. (2d) (Supp.) No. 61 (N.B.Q.B. (T.D.)) ("Rumbaut"), for that proposition. In Rumbaut, the trial judge stated at para. 46: As a start, one should note that the Crown must prove the identity of the accused as the offender beyond a reasonable doubt; considering my ruling with respect to acts of the accused directly admissible against him, it is obvious that if the Crown is not successful in convincing this Court that the voice of Jose Luis is the voice of the accused, it will undoubtedly suffer a serious blow in proving its case against the accused. That is not to say, however, that the Crown must convince me beyond a reasonable doubt that the voice of Jose Luis is the voice of the accused. As any other individual item of evidence which goes to the identity of the accused and which constitutes the Crown's case, the standard of proof on voice identification is proof by a preponderance of evidence. At the end of the day, however, it will be incumbent upon the Court, when considering the evidence on voice identification along with the evidence as a whole, to find guilt only if it is satisfied beyond a reasonable doubt of the identity of the accused as the offender. For example, in some cases, the voice identification evidence may not carry much weight for many reasons but other circumstantial evidence may well be sufficient to convince the Court beyond a reasonable doubt that the voice on a taped conversation is indeed that of the accused and that the identity of the accused as the offender has been proven. On the other hand, it is also conceivable that in an appropriate case, a court could be satisfied on a balance of probabilities that a voice on a taped conversation is that of the accused but not so convinced beyond a reasonable doubt on the issue of the identity of the accused as the offender upon considering the evidence in its entirety. [163] This is not an unorthodox position. Clearly, an accused must be identified beyond a reasonable doubt; the question is whether one piece of evidence may be relied upon if that piece does not itself convince the trier of fact beyond a reasonable doubt. In Rumbaut, the trial judge said that the identification issue must be dealt with on the standard of beyond a reasonable doubt, but any specific elements of the identification evidence may fall below that standard so long as the evidence, when taken as a whole, is convincing of the accused's identity beyond a reasonable doubt. This is to say that, for example, some evidence which is circumstantial, and thereby does not prove identity beyond a reasonable doubt, may operate in conjunction with other evidence to corroborate that evidence, and thereby convince the trier of fact of identity beyond a reasonable doubt. When viewed this way, the statement in Rumbaut hardly seems contentious. [164] On the other hand, if a piece of evidence such as voice identification evidence is the only identification evidence introduced at trial, or if there is some other reason why identification of a voice might be a necessary part of the offence itself, it may very well be that practically, that piece of evidence must prove identity beyond a reasonable doubt. ii. Applying the Law to the Facts [165] Based on the law I have outlined, there is no reason to exclude the voice identification evidence that has been tendered on this voir dire. I am satisfied on a balance of probabilities that the Crown has created an adequate foundation from which to introduce the voice identification evidence in this case. Corporal McDougall testified that for each of the accused to whom he spoke in person, he was able to generate a sufficient point of comparison against which to make an identification of the voices he had heard on the intercepted phone calls. Moreover, I find that Corporal McDougall's prior identifications can be used to demonstrate the methodology that underlies his voice identifications. With respect to Staff Sergeant Goddard, I am similarly convinced that his interactions with Zacharuk and the unindicted alleged co-conspirators, were of a nature that is sufficient to ground a potential voice identification. I am also convinced that Sergeant Harrison had a sufficient foundation from which to make voice identifications. Finally, with respect to the evidence of Ms. D., there is no doubt that she was in a position to make a voice identification of Adam. F. CHARTER ISSUES i. The Law [166] Before I turn to an examination of the substance of each claim, I must address the issue of standing. The applicants allege violations of ss. 7, 8 and 10(b) of the Charter. The only individuals who have standing here are the accused in this matter. I dealt with not entirely dissimilar issues of standing in another application arising from this case: see R. v. Adam, 2006 BCSC 91. Section 7 of the Charter may be invoked only by those whose right to life, liberty and security of the person is at risk of being infringed: see Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44 at para. 47. As explained in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, s. 8 of the Charter protects people, not places. Moreover, the people who are protected are those whose rights properly adhere to them in the context of each situation. Section 10(b), as is clear in its wording, is triggered by the fact of arrest or detention. [167] In R. v. Edwards, [1996] 1 S.C.R. 128, the Supreme Court of Canada held that only an accused in that case could apply to the courts for relief of an alleged Charter breach. If others' rights have been violated, there are other forums for those complaints. Further, in R. v. Cheung (1997), 119 C.C.C. (3d) 507 (B.C.C.A.), the Court of Appeal found that in the context of a challenge to phone intercepts, standing accrues only to those directly implicated in the alleged violation. [168] Accordingly, the only applications I will concern myself with are those of Doak, Adam, Newberry, Zacharuk and Hamm. [169] I now turn to the alleged s. 7 violations. (a) Section 7 [170] Section 7 of the Charter provides that: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [171] The relationship between s. 7 and ss. 8-14 of the Charter has been considered in various decisions of the Supreme Court of Canada. In Reference re Motor Vehicle Act (British Columbia) s. 94(2), [1985] 2 S.C.R. 486, Lamer J. (as he then was) stressed that ss. 8-14 of the Charter address specific deprivations of the rights guaranteed by s.7 of the Charter. [172] Counsel has argued that Adam was not properly informed of his s. 7 right to remain silent when he was arrested. With respect to Doak, counsel submits that Corporal McDougall's presence at Doak's residence to obtain a voice sample amounted to a deliberate strategy to dilute Doak's right to counsel. Counsel submits that this strategy effected a violation of Doak's s. 7 right to silence. [173] Based on these arguments, let me review the nature of the s. 7 right to silence. In R. v. Hebert, [1990] 2 S.C.R. 151 ("Hebert"), the Supreme Court of Canada discussed the right to silence provided under s. 7. At 164, McLachlin J. (as she then was) observed that: The right to silence conferred by s. 7 of the Charter is rooted in two common law concepts. The first is the confessions rule, which makes a confession which the authorities improperly obtain from a detained person inadmissible in evidence. The second is the privilege against self-incrimination which precludes a person from being required to testify against himself at trial. [174] McLachlin J. traced the evolution of these common law concepts, noting that the right to silence has historically been rooted in promoting the reliability of statements by accused persons, and also in protecting the reputation of the justice system from allegations of unfair dealings. At 173, she stated that: [O]ne of the themes running through the jurisprudence on confessions is the idea that a person in the power of the state's criminal process has the right to freely choose whether or not to make a statement to the police. This idea is accompanied by a correlative concern with the repute and integrity of the judicial process. [175] Further, at 174: While the privilege against self-incrimination relies in part on a notion which does not find place in the confessions rule -- the obligation of the Crown to prove its case -- it shares with that rule the notion that an accused person has no obligation to give evidence against himself, that he or she has the right to choose. This, it may be postulated, is the shared conceptual core of the two rules fundamental to the more general right to silence. [176] And, beginning at 180-181: The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice. The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute -- in the first case because the state has improperly used its superior power against the individual, in the second because the state's legitimate interest in law enforcement has been frustrated without proper justification. The right to silence conferred by s. 7 reflects these values. The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police. To this end, the Charter requires that the suspect be informed of his or her right to counsel and be permitted to consult counsel without delay. If the suspect chooses to make a statement, the suspect may do so. But if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect's will and negate his or her choice. The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speak to the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state. On this view, the scope of the right must extend to exclude tricks which would effectively deprive the suspect of this choice. To permit the authorities to trick the suspect into making a confession to them after he or she has exercised the right of conferring with counsel and declined to make a statement, is to permit the authorities to do indirectly what the Charter does not permit them to do directly. This cannot be in accordance with the purpose of the Charter. [177] This enunciation of the right to silence under s. 7 remains a vital touchstone for judicial reference. However, the scope of the right to silence in the context of voice identification adds a new dimension to the analysis. In R. v. Beare, [1988] 2 S.C.R. 387 ("Beare"), the court considered whether s. 2 of the Identification of Criminals Act, R.S.C. 1985, c. I-1 violates the Charter, insofar as the statute authorizes the fingerprinting of a person who has been arrested, but not yet convicted of an offence. [178] In Beare, the court held that the taking of fingerprints does not violate the principles of fundamental justice within the meaning of s. 7 of the Charter because the existence of reasonable and probable grounds to arrest a person reduces one's expectation of personal privacy. [179] In Beare, at 412-413, the court observed: Assuming section 7 includes a right to privacy such as that inhering in the guarantee against unreasonable searches and seizures in s. 8 of the Charter, a proposition for which I have considerable sympathy, it must be remembered that the present Chief Justice in Southam was careful to underline that what the Constitution guaranteed was a "reasonable expectation" of privacy [citation omitted]. It seems to me that a person who is arrested on reasonable and probable grounds that he has committed a serious crime, or a person against whom a case for issuing a summons or warrant, or confirming an appearance notice has been made out, must expect a significant loss of personal privacy. He must expect that incidental to his being taken in custody he will be subjected to observation, to physical measurement and the like. Fingerprinting is of that nature. While some may find it distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. There is no penetration into the body and no substance is removed from it. I am unable to accept that a provision providing for fingerprinting as an incident of being taken into custody for a serious crime violates the principles of fundamental justice. While a search of one's premises requires a prior authorization based on reasonable and probable grounds to believe both that the offence has been committed and that evidence will be found, the custodial fingerprinting process is entirely different. It involves none of the probing into an individual's private life and effects that mark a search. Apart from this, the invasion of privacy on arrest on reasonable and probable grounds is a far more serious violation of the right to privacy. It is not significantly aggravated by the taking of the fingerprints of the person in custody. [180] I take this passage to stand for the proposition that an individual who is arrested must expect a reduced level of personal privacy in the face of police procedures which provide for identification. I accept that obtaining a sample of an individual's voice may be an analogous form of identification, but I also note that voice samples are not provided for by statute in the way that fingerprinting or photographing are. [181] In R v. Shortreed (1990), 54 C.C.C. (3d) 292 (Ont. C.A.) ("Shortreed"), the Court of Appeal upheld the accused's conviction at trial in relation to several counts of sexual assault. In Shortreed, the police engaged in an unsuccessful undercover operation to photograph the accused. Undercover police officers, posing as customers, attended the accused's place of business and attempted to lure him to an area where they could take his picture. The court commented at 304: Once a suspect is arrested on reasonable and probable grounds, there is nothing to prevent the police from obtaining photographs and fingerprints under statutory power It was argued that the rule against self-incrimination protects a mere suspect, prior to his arrest, by giving him not only the right to remain silent but also the right to refuse to provide evidence against himself, such as photographs. I do not agree. The fact that photographs of a suspect can be taken without his consent following his arrest, does not mean that such consent is necessary before his arrest. The facial or other bodily features of the person are facts which can be recorded by a criminal investigator by means of a photograph. This does not involve testimonial compulsion and hence does not breach the rule against self-incrimination. The police are not obliged to obtain the consent of a suspect before taking his photograph in a public place, provided no physical compulsion is involved. For the same reasons that the assertion of one's right to silence does not impose an obligation on the police to cease asking non-coercive questions as part of the continuing investigation [R v. Hicks (1988), 42 C.C.C. (3d) 394 (Ont. C.A.)], the refusal of a suspect to allow himself to be photographed should not preclude appropriate efforts by the investigating officers to obtain one. If this is done in a non-intrusive way and without trespass or other improper means, I do not regard the efforts as a breach of privilege, an invasion of privacy or a violation of Charter rights. [182] In R. v. Dilling (1993), 84 C.C.C. (3d) 325 (B.C.C.A.) ("Dilling") the Court of Appeal considered whether taking a photograph conscripted the accused in giving evidence against himself and breached the right to remain silent, and whether the taking of the photograph was an invasion of privacy protected under s. 7 of the Charter, a seizure prescribed by s. 8, and an act requiring a separate warning. [183] In Dilling, the accused stopped his car at the side of the road and engaged in a conversation with an undercover police officer for the purpose of obtaining sexual services. After the conversation with the undercover officer, the accused drove away and was stopped by a cover team. An officer with the cover team photographed the accused and the photograph was turned over to the undercover police officer in order to later assist the officer with in court identification. [184] At 330-331 the court observed: Without proof of identity beyond a reasonable doubt the efforts of the police officers would be in vain. It would be as logical to require a police officer to warn a suspect that he or she is about to be scrutinized for the purpose of later identification as to warn the suspect that he or she is about to be photographed for that purpose. In either case if the police officer was required to desist from scrutinizing or photographing until a decision was made by the suspect as to whether to exercise a right to consult counsel, the ability of the police to control the activity proscribed by s. 213(1) would be severely curtailed. [185] Beginning at 333, the court held: I am assuming, without deciding, that s. 7 of the Charter protects a right to privacy. Establishing identity includes the steps necessary to identify in the future the person answering the charge in the court-room as the person detained on the night of January 25, 1990. If the detaining officers had doubts about the establishment of the appellant's identity for this future purpose, the public interest required them to arrest him. A person so arrested could be fingerprinted, searched, photographed, items in his possession seized, and notes taken of marks and scars and all this without his consent. These procedures do not violate rights protected under s. 7 for reasons stated by Mr. Justice La Forest in R. v. Beare, supra. In short, an assertion of the right to remain silent in relation to identity must be given a lesser value than the right to remain silent for the purpose of avoiding self-incrimination. [186] In R. v. Pelland (1997), 99 O.A.C. 62 (C.A.) ("Pelland") the court considered whether surreptitious recording of the accused's voice violated the accused's rights under ss. 7, 8, 10(a) and 10(b) of the Charter, and therefore, should have been excluded at his trial. [187] In Pelland the accused was convicted on three counts of sexual assault and one count of robbery. During the investigation the police interviewed and recorded the accused as part of an "exploratory investigation" unrelated to any specific ongoing investigation. The recording of the interview was played to two of the complainants in the proceedings as part of a voice identification line-up, and the complainants were able to identify the accused's voice as that of their assailant. [188] In Pelland the court, with regard to s. 7 of the Charter, held at para. 12: Similarly, we reject the appellant's submission that his right to security of person under s.7 of the Charter was violated. The taking of the voice sample was insubstantial, of very short duration and left no lasting impression. There was no penetration of the appellant's body and no substance removed from it. In R. v. Parsons (G.) (1993), 65 O.A.C. 61; 84 C.C.C. (3d) 226 (C.A.) this court held that the surreptitious videotaping of an accused in police custody for purposes of preparing a photo identification line-up did not constitute a s. 7 Charter violation. We see no meaningful distinction between that case and the one at hand. Further, the court held that the appellant was given and had exercised his right to counsel before speaking to the police and that the appellant knew that he was speaking to a police officer when he provided his voice sample. [189] In R. v. Rendon, [1997] O.J. No. 5505 (QL) (Ct. J. (Gen. Div.)) ("Rendon"), Sharpe J. (as he then was) dealt with the issue of whether using the process of informing a detained person of their Charter rights to obtain a voice sample was a violation of the Charter rights to counsel and to silence. In that case, Sharpe J. framed his review in terms of s. 10(b), an analysis which I will refer to later when dealing with that section myself. However, referring to s. 7, he stated at para. 88 that using a constitutionally mandated purpose as a device or trick to obtain incriminating evidence from a detained person would amount to a violation of s. 7. [190] In R. v. Wong (1997), 35 O.T.C. 321 (Ct. J. (Gen. Div.)) ("Wong"), Feldman J. (as she then was) excluded voice identification evidence, after finding that the police had not effectively informed the accused of his Charter rights. With respect to s. 7, Feldman J. noted a difference between voice identification and fingerprinting, namely that the Charter gives a right to silence which is not put into play when dealing with fingerprinting or other forms of non-verbal identification. [191] In R. v. Castro (2001), 157 C.C.C. (3d) 255, 2001 BCCA 507, the British Columbia Court of Appeal declined, at paras. 44-45, to decide the issue of whether using a Charter warning to obtain a voice sample violated the appellant's right to silence, but found that the appellant's voluntary phone call to police provided a permissible opportunity to obtain a voice sample. [192] In R. v. Oliynyk (2005), 67 W.C.B. (2d) 807, 2005 BCSC 386 ("Oliynyk"), Mackenzie J. considered whether police violated an accused's rights under ss. 7 and 10(b) by choosing an arresting officer who was familiar with the suspect's voice from intercepted telephone calls in order to obtain a voice sample. With respect to s. 7, Mackenzie J. found that there had been no violation of the accused's rights. [193] There is no simple statement of law that remains after considering these prior judgments, so I will not try to make one. However, I will make one more observation, this time addressing individuals' privacy interests. In R. v. Mills, [1999] 3 S.C.R. 668, McLachlin and Iacobucci JJ. dealt with the privacy interest of individuals at paras. 79-80: This Court has most often characterized the values engaged by privacy in terms of liberty, or the right to be left alone by the state. For example, in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 427, La Forest J. commented that "privacy is at the heart of liberty in a modern state". In R. v. Edwards, [1996] 1 S.C.R. 128, at para. 50, per Cory J., privacy was characterized as including "[t]he right to be free from intrusion or interference". This interest in being left alone by the state includes the ability to control the dissemination of confidential information. As La Forest J. stated in R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 53-54: ... it has long been recognized that this freedom not to be compelled to share our confidences with others is the very hallmark of a free society. Yates J., in Millar v. Taylor (1769) 4 Burr. 2303, 98 E.R. 201, states, at p. 2379 and p. 242: It is certain every man has a right to keep his own sentiments, if he pleases: he has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends. These privacy concerns are at their strongest where aspects of one's individual identity are at stake, such as in the context of information "about one's lifestyle, intimate relations or political or religious opinions"[.] (b) Section 8 [194] Section 8 of the Charter provides that: Everyone has the right to be secure against unreasonable search or seizure. [195] Based on accumulated jurisprudence, the first question that courts must address under s. 8 is whether the accused has a reasonable expectation of privacy: see Hunter v. Southam, [1984] 2 S.C.R. 145. In Pelland the court, in relation to s. 8, held at para. 11: Turning next to the alleged violation of the appellant's privacy rights under s. 8 of the Charter, we are not persuaded that the appellant had any reasonable expectation of privacy in the sound of his voice. The sound of one's voice is a physical characteristic much the same as a person's physical appearance. Accordingly, we are of the view that the surreptitious recording of the appellant's voice did not amount to a violation of his s. 8 Charter rights. Of importance, we note that the content of the voice sample itself was innocuous and it did not in any way implicate the appellant in criminality. Rather, upon request, the appellant merely volunteered a brief history of his family background. [196] In contrast, the court in Rendon had this to say, at para. 90, on the issue of voice: In my view, identification of a voice is not a matter of identification of the raw, physical quality of sound emanating from the person identified. The identification of a voice of a particular individual is inextricably bound up with the way that individual expresses himself or herself. It would be made on the basis of the rate and flow of speech, articulation, tone, accent, intonation, language and structure adopted. It is essentially an assessment of the individual's manner of oral communication and expression, and therefore is quite unlike other forms of identification and does implicate the right to silence. In this, Sharpe J. aligned himself with the position of Feldman J. in Wong, explicitly rejecting the earlier position of Corbett J. in R. v. Chan (30 June 1994), (Ont. Ct. J. (Gen. Div.)), per Corbett J., an earlier unreported Ontario case. However, Sharpe J.'s decision in Rendon seems to have been based primarily on s. 10(b) considerations, and on dubious police conduct with respect to providing and honouring the right to counsel. Moreover, in that case it appears that the statements by the accused were not used solely for identification purposes, but contained content which might have been injurious to their positions. [197] In R. v. Vu (1999), 133 C.C.C. (3d) 481, 1999 BCCA 182 ("Vu"), the court considered whether police questioning of a suspect in regards to a fictitious investigation, but for the purposes of establishing identification, amounted to a search within the meaning of s. 8 of the Charter. [198] In Vu, the accused sold 0.3 grams of cocaine to an undercover police officer. Following the sale, other uniformed officers attended at the apartment where the purchase took place. The police indicated to the accused that they were there to question the accused in relation to an assault case. In reality, the officers were there to confirm the identification of the accused in relation to the drug transaction. The Court of Appeal overturned the trial judge's decision to exclude the evidence and stated at para. 38: Untrammeled by authority I would conclude that the conduct of the officers in this case was entirely reasonable. They believed on reasonable grounds that an offence had been committed and it was prudent to obtain some corroborating evidence (particularly as the sting was continuing and no arrest would be made at that time) and also to ensure that at the end of the sting, the wrong person would not be arrested or charged. [199] In R. v. Ng (1996), 38 C.R.R. (2d) 340 (Ont. Ct. J. (Gen. Div.)) ("Ng"), the court held, at 352: I have to conclude that engaging a detainee in conversation for the purpose of establishing identity without disclosing that purpose is not an infringement on his right to remain silent, does not violate his right to privacy, and is not a search. [200] In Piché the Quebec Court of Appeal rejected the suggestion that listening to sounds made by the accused at police headquarters amounted to an unreasonable search and seizure under s. 8. [201] Thus, existing case law appears to favour the position that listening to an accused's voice to establish grounds for a later voice identification rarely amounts to a violation of s. 8, absent other transformative factors. (c) Section 10(b) [202] Section 10 of the Charter provides that: Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [203] In the case before me, counsel has argued s. 10(b) and I agree that that is the right most squarely put in play by the facts. Under the framework necessitated by the wording of s. 10, the rights provided for are triggered by the arrest or detention of an individual. I will first consider the boundaries of a detention before moving to a further consideration of s. 10(b). [204] The most relevant discussion of the boundaries of detention comes in the courts' recognition of psychological detention as a form of detention. Mindful of the facts in this case, I find the meaning of psychological detention to be the most possibly contentious. In R. v. H. (C.R.) (2003), 174 C.C.C. (3d) 67, 2003 MBCA 38, Steele J.A. held beginning at para. 27: A review of the cases reveals that there is no easy test or single determining factor that will lead to a conclusion that a psychological detention took place. Rather, there are a number of factors that must be weighed: Whether it can be said that a person has been detained on any given occasion depends on the circumstances at that time. There is no simple test. The criteria to which courts have referred include demand or direction as opposed to request, language used and tone of voice, compulsion including psychological compulsion and, it seems to me, place of contact. To the above factors must be added the subjective belief of the accused. The personal circumstances of the accused, such as age, intelligence and level of sophistication, may be considered in determining whether an accused had a subjective belief that he was detained. However, a subjective belief is not determinative. The test has an objective component. The belief must be a reasonable one. In certain circumstances, the presence or absence of a statement by the police that the suspect was not compelled to attend or accompany them or produce identification may be a factor to consider. This passage was referred to in R. v. Atwal, 2004 BCSC 998 at paras. 89-92. [205] The indicia of detention were laid out in R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.) at 258-259 as follows: 1. The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given a choice or expressed a preference that the interview be conducted at the police station, rather than at his or her home; 2. [W]hether the accused was escorted to the police station by a police officer or came himself or herself in response to a police request; 3. [W]hether the accused left at the conclusion of the interview or whether he or she was arrested; 4. [T]he state of the investigation, that is, whether the questioning was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused; 5. [W]hether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated; 6. [T]he nature of the questions: whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt; [and] 7. [T]he subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had a subjective belief that he was detained. [Emphasis in original.] [206] The Ontario Court of Appeal also recently reviewed the definition of psychological detention in R. v. Grant (2006), 209 C.C.C. (3d) 250. In that case, the court reaffirmed the "classic statement of psychological detention" made by Le Dain J. in R. v. Therens, [1985] 1 S.C.R. 613: In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. [207] The court in Grant also observed, at para. 10: The definition of "psychological detention" reflects a judicial balance between competing values. On the one hand, the police have the duty and the authority to investigate and prevent crime in order to keep our community safe. In carrying out their duty, they must interact daily with ordinary citizens. Not every such encounter between the police and a citizen amounts to a constitutional "detention." This court and other courts have recognized that police must be able to speak to a citizen without triggering that citizen's Charter rights. In all of these cases, the consensus is that deciding psychological detention remains a highly fact-based and context-sensitive enquiry. I now turn to the content of the s. 10(b) right itself. [208] In R. v. Smith, [1989] 2 S.C.R. 368 ("Smith") the court considered whether the police gave the accused a reasonable opportunity to exercise his right to retain and instruct counsel without delay. Following a five month police investigation, the accused was charged with robbery. At 7:00 p.m., while en route to the police station, the accused was advised of his s. 10 rights. At 9:00 p.m. the accused expressed his intention to communicate with counsel. Upon arrival at the police station the accused was provided with a telephone book and access to a telephone. The accused decided not to make the telephone call as it was unlikely that his counsel was available at that time. Approximately one hour later the police interviewed and obtained a statement from the accused. During the interview the accused twice indicated he wanted to speak to counsel. At trial the accused was convicted, in part, because of an incriminating statement made to the police. The accused's appeal to the British Columbia Court of Appeal was dismissed. The Supreme Court of Canada held that the accused was not reasonably diligent in the exercise of his rights, and therefore, his statement to the police was not obtained in a manner that infringed or denied a right protected by the Charter. [209] In Smith, the court observed at 385: The police officers, in these circumstances, were justified to continue questioning and to act as they did. This Court, in R. v. Tremblay, [1987] 2 S.C.R. 435, clearly indicated, at p. 439, that the duties imposed on the police as stated in Manninen, supra, were suspended when the arrested or detained person is not reasonably diligent in the exercise of his rights. Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this Court's decision in R. v. Manninen, [1987] 1 S.C.R. 1233, imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath. This limit on the rights of an arrested or detained person is essential because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society. An arrested or detained person cannot be permitted to hinder the work of the police by acting in a manner such that the police cannot adequately carry out their tasks. [210] In Hebert, the court discussed the relationship between ss. 7 and 10(b) of the Charter at 176-177: The scheme under the Charter to protect the accused's pre-trial right to silence may be described as follows. Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent. Section 10(b) requires that he be advised of his right to consult counsel and permitted to do so without delay. The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature. The guarantee of the right to consult counsel confirms that the essence of the right is the accused's freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed, it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel. [211] In Ng the court excluded voice identification evidence because the police fulfilled their s. 10(b) obligation in a perfunctory manner. The accused were all arrested on drug conspiracy charges. Although the police were aware that the accused were not fluent in English, they nevertheless failed to have an interpreter present when the accused were arrested. Before the accused were permitted to contact counsel, the police interviewed the accused ostensibly to gather personal information for court processes. However, during the police interviews, call room monitors were present for the purpose of acquiring voice identification evidence. [212] In Ng the court observed at para. 15: I do not agree that there was any obligation on the investigating authorities to forewarn an accused about voice identification. There was obligation to explain that Anthony Lee was present to match the voice of an accused with the voice on the tapes. While the standard police caution informs the accused that there is no obligation to say anything in response to the charge, it is given together with an invitation to make a statement about the offence charged. It is intended to inform the accused that he has a choice. The caution will be a factor in establishing the voluntariness of any incriminating statement that may be made by the accused. There is no obligation on the police to advise an accused person of a general right to remain silent in the sense of standing mute. The police have a right to question suspects and witnesses as part of their investigation. They are not obliged to explain the reasons for the questions or their significance in relation to the investigation. [213] In Rendon, the court found that the police had made a calculated decision to obtain voice identification evidence under the pretence of providing the requisite Charter rights. Upon arrest, the accused were advised of their Charter rights, including their right to remain silent. However, before the accused were afforded an opportunity to speak with counsel, the police brought the accused to an interview room ostensibly to advise the accused, for a second time, of their right to counsel and permit them to call a lawyer. The court found the extent of this ruse to be problematic, and noted that there was a conscious decision on the part of the police to not caution the accused of their right to silence when they were cautioned of their right to counsel. At para. 76, the court found that it was "clear on the evidence that the accused did assert their right to counsel and that when asked if they wished to speak to a lawyer all three said that they did." [214] In Rendon, the court held at para. 79: I find the procedure followed by Henderson [the arresting officer] in this case constituted a clear denial of the accused's s. 10(b) right to counsel. To permit the authorities to use the very process of complying with the s. 10(b) duty to advise the detained person of his or her right to counsel to gain incriminating evidence, in my view, strikes at the very heart of s. 10(b) and constitutes a flagrant breach of the constitutional right to counsel. [215] In Rendon, the Crown argued that there was no breach of the accused's Charter rights because the accused had already been advised of their right to counsel and it was unnecessary to advise the accused of these Charter rights a second time. In response to this argument, the court held at para. 88: If I were to accept the crown's argument that what Officer Henderson did was unnecessary, it is my view that that would only make the situation worse. It would mean that an experienced officer, obviously familiar with practices, procedures and legal requirements applicable to detained persons, used a constitutionally mandated purpose deliberately as a device or trick to dupe a detained person into providing incriminating evidence. That, in my view, would constitute a clear denial of the s. 7 right to silence defined and elaborated by the Supreme Court in R. v. Hebert, (1990), 57 C.C.C. (3d) 1 and R v. Broyles (1991), 68 C.C.C. (3d) 308. This so-called "unnecessary" use of procedures mandated by the Charter of Rights as a device to entice a detainee to give incriminating evidence, in my view, would constitute an affront to the Charter and a clear denial of the accused's rights to silence. [216] Sharpe J. also discussed the duty on police to hold off. At paras. 77-78 he stated: The duty to hold off extends to asking an accused person or detained person to participate in a process that will yield incriminating evidence. This is clear from the decision of the Supreme Court in R. v. Ross, (1989), 46 C.C.C. (3d) 129. There a detained person indicated his wish to speak to counsel. It was in the middle of the night and the police were unable to make contact with the lawyer. However, before the accused had spoken to his lawyer, at the request of the police, the accused participated in a line-up. The Supreme Court held as follows at page 136, "The police were mistaken to follow such a procedure. As this court held in Manninen, the police have, at least, a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. In my view, the right to counsel also means that, once an accused or detained person has asserted that right, the police cannot, in any way, compel the detainee or accused person to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In the case at bar, it cannot be said that the appellants had a real opportunity to retain and instruct counsel before the line-up was held. Nor can it be said that there was any urgency or other compelling reason which justified proceeding with the line-up so precipitously." In my view, it follows from these authorities that had Officer Henderson advised the accused of their right to counsel in the absence of Alvarado and had they (as they did) asserted their wish to speak to a lawyer it would have been a violation of their right to counsel for Officer Henderson to proceed to bring Alvarado into the room, question them in her presence by engaging them in conversation in order to obtain voice identification before they had had an opportunity to speak to counsel. If the police could not ask the detainees in Ross, supra, to participate in a line-up[,] I fail to see how Henderson could have asked these accused to converse in order to obtain voice identification evidence. I also fail to see how the crown's position is improved by the fact that the strategy adopted by Henderson was specifically designed to deprive the accused of their opportunity to speak to counsel before voice identification evidence had been obtained. [217] The police are under an obligation to hold off from attempting to elicit incriminatory evidence from the detainee until he or she has a reasonable opportunity to reach counsel. In R. v. Prosper, [1994] 3 S.C.R. 236 at 271-272, Lamer C.J.C. wrote: It is now well accepted that s.10(b) serves to protect the privilege against self-incrimination, a basic tenet of our criminal justice system which has been recognized by members of this Court to be a "principle of fundamental justice" under s.7 of the Charter: R. v. P.(M.B), [1994] 1 S.C.R. 555, and R. v. Jones, [1994] 2 S.C.R. 229. In R. v. Hebert at pp. 176-77, [1990] 2 S.C.R. 151, the relationship between s. 10(b) and the right to silence was acknowledged by the majority, at p. 176: The first Charter right of importance in defining the scope of the right to silence under s.7 of the Charter at the pre-trial stage is the right to counsel under s. 10(b) of the Charter. The scheme under the Charter to protect the accused's pre-trial right to silence may be described as follows. Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent. Section 10(b) requires that he be advised of his right to consult counsel and permitted to do so without delay. The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature. This point was confirmed in Brydges, where the majority held at p. 206 that: A detainee is advised of the right to retain and instruct counsel without delay because it is upon arrest or detention that an accused is in immediate need of legal advice. As I stated in Manninen, supra, at p. 1243, one of the main functions of counsel at this early stage of detention is to confirm the existence of the right to remain silent and to advise the detainee about how to exercise that right. It is not always the case that immediately upon detention an accused will be concerned about retaining the lawyer that will eventually represent him at trial, if there is one. Rather, one of the important reasons for retaining legal advice without delay upon being detained is linked to the protection of the right against self-incrimination. This is precisely the reason that there is a duty on the police to cease questioning the detainee until he has had a reasonable opportunity to retain and instruct counsel. [218] In R. v. Ngo (2003), 175 C.C.C. (3d) 290, 2003 ABCA 121 ("Ngo"), the court considered whether voice identification evidence of the accused was obtained in a manner that contravened ss. 7 or 10(b) of the Charter. The accused was advised, upon arrest, of his right to remain silent and indicated that he wished to speak with counsel. The police did not facilitate the request; rather, they conducted an interview, ostensibly to gather biographical data to facilitate a transfer to Alberta, the originating jurisdiction for the charges. During the interview, a call room monitor who had listened to the accused on intercepted communications was present. The accused was told that the monitor's presence was to act as an interpreter, even though the accused had explicitly expressed his understanding of English. On appeal, the court held that the right to retain and instruct counsel without delay was breached. The only evidence relied upon to sustain the conviction came about as a consequence of the breach. The court excluded the voice identification evidence because the accused's attempts to exercise his s. 10(b) right to consult counsel were denied in an effort to prolong an interview, the purpose of which was to elicit evidence. The court ordered a new trial. [219] In R. v. Gordon (1999), 133 C.C.C. (3d) 349 (Ont. Ct. Jus. (Gen. Div.)) ("Gordon"), O'Connor J. commented on the duration of police Charter warnings, at 356-357: The Crown argues, even if he was under detention, Mr. Gordon had long before, at the time of his arrest, been given his s. 10(b) rights. He had consulted with and retained counsel and was therefore presumably aware of his right to remain silent. The police may continue to question or speak to an accused after he has exercised his right to counsel. He may choose to speak to them or he may choose to remain silent. Although Mr. Gordon had been afforded his s. 10(b) rights upon his arrest many months before this incident, the police were not representing they wished to speak to him or ask him questions about the offences. To have indicated this may well have prompted his reliance on his right to silence, about which he had no doubt been advised by his counsel. Instead they were apparently according him a right which they well knew, in the absence of his counsel or legal advice, he would not likely know was superfluous, unnecessary and part of a ruse. Their actions were duplicitous, designed to lull him into providing evidence against himself without realizing he was doing so. They were not permitting him to make an "informed choice whether or not he will speak to the authorities". They were employing "tricks which would effectively deprive the suspect of this choice." [220] Further, at 357-358: The police are permitted to engage in subterfuge in the course of investigations. Deception can be a legitimate and profitable investigative tool. Undercover operatives posing as persons seeking to purchase drugs or playing the role of cellmates of accused are examples of the often effective use of this investigative method. However, these situations are distinctly different from the one in this case. In the former the suspect is not under the control of the state, that is, he is not under detention, and in the latter the undercover "cellmate" must observe strict passivity. He cannot elicit, coerce or trick admissions from the detainee. He must listen only. The test is whether the exchange between the agent of the state, be he a police officer or otherwise, would have taken place but for the intervention of the state or its agent. [221] In R. v. Scarpino, [1998] B.C.J. No. 1563 (QL) (Prov. Ct.), the court examined whether forcing an arrestee to wait before contacting counsel amounted to a violation of s. 10(b). On the facts, the court found that a delay linked with transporting an accused from Nanaimo to Victoria did not constitute a violation of s. 10(b), given that there was no proof that the accused had indicated that he wished to contact counsel in Nanaimo. However, the court found that there was a violation of s. 10(b) when an accused was transported by plane from Toronto to Victoria without the opportunity to contact counsel, even though the accused had indicated that he wished to contact counsel in Toronto. [222] Finally, in Oliynyk, which summarizes many of the cases I have dealt with and provides a useful review of these issues generally, Mackenzie J. found at para. 113 that: A "reasonable" opportunity to contact counsel does not always require an immediate opportunity. It depends on the circumstances of each case, but it is clear there was no urgency here. The two hour period between the assertion by Mr. Oliynyk of his s. 10(b) right and the opportunity to exercise it was too long in the circumstances. It would not have been difficult for the police to have offered Mr. Oliynyk an earlier opportunity for a private call to his lawyer given the proximity of the Richmond detachment to the South Terminal. I find, therefore, Mr. Oliynyk has proven on a balance of probabilities that he was denied a reasonable opportunity to contact counsel. [223] However, he also held that the evidence was not obtained "in a manner" that infringed or denied the accused's s. 10(b) right within the meaning of s. 24(2) of the Charter, and therefore found the evidence to be admissible. ii. Applying the Law to the Facts [224] Having reviewed the applicable law, I will now examine the situation of each accused in light of that legal context. (a) Doak [225] With respect to Doak, I find that none of his Charter rights were violated when he spoke with Corporal McDougall. With respect to s. 7, I find that the police were in these circumstances under no obligation to reinforce the Charter rights he had been read upon arrest. I cannot accept that s. 7 required the police to warn him to not speak. I accept that Doak asked the police to return an exhibit to his house, and find no suggestion that that exhibit or its return was part of an engineered police trick. Based on my review of the case law, I cannot find that Corporal McDougall's presence to listen to Doak's voice amounted to an illegal search or seizure, nor can I find that it was improper for Corporal McDougall to be one of the officers present when the exhibit was returned, relying on Oliynyk. Accordingly, there was no violation of s. 8. Moreover, I do not find that Doak was detained during the exchange with the officers. Even though Doak had been arrested and was at the time charged in connection with the case at bar, I do not find that the facts of the interaction between Corporal McDougall and Doak, on the occasion in question, support the suggestion that he was detained. As such, his right under s. 10(b) was not triggered. (b) Newberry [226] With respect to Newberry, counsel has not suggested any violation of any Charter rights, nor can I find any reason to suppose that any of Newberry's rights might have been in play when Corporal McDougall overheard his voice at the courthouse. Accordingly, I find that Newberry's Charter rights were not violated. (c) Adam [227] With respect to Adam, I accept that Adam was properly informed of his rights, including his right to contact counsel when he was arrested by Corporals McDougall and Sellinger. Counsel for Adam has emphasized the fact that the police entered the residence while arresting Adam. However, I accept Corporal McDougall's account of the events here. Moreover, this action can be understood as necessary upon arrest, as to find otherwise would allow an arrested person out of police sight, an act that can be inherently dangerous. I find no evidence that the police engaged in any form of search while accompanying Adam to his room to obtain his wallet or take care of his dog. Accordingly, I find that there was no violation of s. 7, nor was there a violation of s. 8. [228] I am somewhat more troubled by the suggestion that Corporal McDougall encouraged Adam to hurry up. If true, this can be a form of police pressure that reduces an individual's opportunity to exercise their s. 10(b) right. The police are in a position of considerable power when arresting or detaining an individual. Although the ambit of s. 10(b) is to provide individuals with a choice of whether to speak to counsel or not, police must be very careful to not overly influence that choice, one way or another. Holding out the prospect of shorter time in detention, no matter how well meant, risks influencing an individual to waive a right to speak to counsel. This activity should not be tolerated. However, on the facts here, I am not convinced that the police action upset the appropriate balance. Although counsel for Adam suggested that he did not specifically waive his right to counsel, I find that Adam did not express an interest in contacting counsel while at the residence. Moreover, I find that the wait between his arrest at the residence and the point at which he exercised his right to counsel at the police station, is not out of keeping with wait times that have been found to pass constitutional muster in other cases. Accordingly, I find that there was no violation of Adam's s. 10(b) right. (d) Zacharuk [229] Counsel for Zacharuk argued that the police effected a voice identification in the course of his arrest in violation of his Charter rights. On the facts suggested by counsel, the police made this voice identification while asking for information to confirm Zacharuk's identity. There is no evidence that the police engaged in any tricks to obtain a sample of Zacharuk's voice, nor that they delayed his ability to contact counsel by engaging him in any more than the minimum conversation necessary for identification. I find, accordingly, that there was no violation of Zacharuk's s. 7 right to silence. There is no suggestion that the arrest of Zacharuk was based on an unconstitutional premise or that the warrant for the arrest was invalid. Again, based on my review of the case law, I find no grounds to hold that Zacharuk's s. 8 right was violated. Further, I accept that Zacharuk was read his Charter rights when he was arrested, and that he indicated that he did not want to call counsel immediately. Accordingly, I find no reason to believe that Zacharuk's s. 10(b) right was violated. (e) Hamm [230] With respect to Hamm, I find that he had already exercised his right to counsel when he was approached by Corporal McDougall. I accept that Corporal McDougall made his voice identification almost immediately upon speaking with Hamm and that there was no police trick employed to obtain that voice identification. Accordingly, I find no Charter violations in this case. iii. Section 24(2) if Necessary [231] In the event that I am mistaken with respect to my findings regarding the Charter, I will briefly review the available recourse under s. 24(2). [232] Section 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. [233] Whether evidence obtained as a result of the Charter breach should be excluded turns on the application of three factors first set out in R. v. Collins, [1987] 1 S.C.R. 265 ("Collins"), and reaffirmed in R. v. Stillman, [1997] 1 S.C.R. 607 ("Stillman"), at para. 69. These factors are: 1) The effect of admitting the evidence on the fairness of the trial; 2) The seriousness of the Charter violation; and 3) The effect of excluding the evidence on the administration of justice. All these factors are directed toward the repute of the justice system flowing from the admission or exclusion of the evidence. (a) Trial Fairness [234] The first Collins factor, trial fairness, principally concerns "the continued effects of unfair self-incrimination on the accused": see R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10 ("Law"). The notion underlying this first factor is that an accused should not be conscripted to participate in creating or producing incriminatory evidence. The focus of the trial fairness inquiry, therefore, has been on whether the evidence in question is conscriptive. [235] In this regard, the court in Stillman held at para. 80 that: Evidence will be conscriptive when an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples. [236] The word "compelled" has been interpreted broadly to include the participation of an accused in the obtaining or creating of the evidence: see, for example, R. v. Dolynchuk (2004), 184 C.C.C. (3d) 214, 2004 MBCA 45. [237] The question to be decided by me is whether the evidence obtained from Doak, Newberry, Adam or Zarachuk was conscriptive, and whether that ends the s. 24(2) inquiry. This was certainly the situation in the cases which were drawn to my attention by defence counsel: see R. v. McKenzie (2002), 167 C.C.C. (3d) 530 (Ont. C.A.); Rendon; Wong; Gordon; and Ngo. [238] The issue of whether conscriptive evidence necessarily renders the trial unfair has been the subject of recent comment. In Law, Bastarache J. for the court of nine judges, stated at para. 33: In Collins, supra, this Court grouped the circumstances to be considered under s. 24(2) into three categories: (1) the effect of admitting the evidence on the fairness of the subsequent trial, (2) the seriousness of the police's conduct, and (3) the effects of excluding the evidence on the administration of justice. Trial judges are under an obligation to consider these three factors. In general, it will be much easier to exclude evidence if its admission would affect the fairness of the trial as opposed to condoning a serious constitutional violation: Collins, supra, at p. 284. This quotation seems to suggest a moving away from the position taken by Cory J. in Stillman on the issue of the almost automatic exclusion of conscriptive evidence. See also R. v. Lotozky (2006), 210 C.C.C. (3d) 509 (Ont. C.A.) per Rosenberg J.A. at paras. 43-44. [239] In Grant, Laskin J.A., for the court, speaking about whether a finding that evidence obtained as a result of a Charter breach should be automatically excluded, wrote at paras. 49-53: The question then becomes whether this conclusion ends the s. 24(2) inquiry. I do not think that it should, or that it does in this case. I think it is fair to say that up until now, trial and provincial appellate courts have viewed the Supreme Court of Canada's jurisprudence on s. 24(2), especially Stillman, as standing for the proposition that conscriptive or derivative evidence affecting the fairness of the trial will be excluded in all, or virtually all, cases without consideration of the other two Collins factors. This so-called "automatic exclusionary rule", or near automatic exclusionary rule, has been the subject of strong academic criticism and, respectfully, does not seem faithful to the language of s. 24(2) itself, which directs the court to consider "all the circumstances" bearing on the repute of the justice system. More germane to this case, some recent decisions seem to signal that the Supreme Court of Canada is willing to moderate the strictness with which it has applied the trial fairness factor to exclude evidence obtained in violation of a Charter guarantee. Some of the academic criticism and recent case law are admirably canvassed by Steel J.A. in Dolnychuk. I rely on, but will not repeat, her discussion in that case. See also, David M. Paciocco, "Stillman, Disproportion and the Fair Trial Dichotomy under Section 24(2)" (1997) 2 Can. Crim. L.R. 163. The most pertinent recent case is R. v. Elias; R. v. Orbanski, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 196 C.C.C. (3d) 481 where, in concurring reasons, LeBel J., writing for himself and Fish J., cautioned at para. 93 that the court had not established a pure exclusionary rule for conscriptive evidence: Our Court has remained mindful of the principle that the Charter did not establish a pure exclusionary rule. It attaches considerable importance to the nature of the evidence. It is constantly concerned about the potential impact on the fairness of a criminal trial of the admission of conscriptive evidence obtained in breach of a Charter right. Nevertheless, while this part of the analysis is often determinative of the outcome, our Court has not suggested that the presence of conscriptive evidence that has been obtained illegally is always the end of the matter and that the other stages and factors of the process become irrelevant. It seems to me that this passage reflects three important propositions. First, the admission of all conscriptive evidence, including derivative evidence, will have some impact on trial fairness. Second, if we do not have an automatic exclusionary rule for conscriptive evidence, then we must recognize that even though the admission of conscriptive evidence compromises trial fairness, its admission will not always bring the administration of justice into disrepute. And third, whether conscriptive evidence should be admitted will depend both on the resulting degree of trial unfairness and on the strength of the other two Collins factors. Thus, before considering the other two Collins factors, I will focus on the criteria that might be used to assess the impact on trial fairness resulting from the admission of conscriptive evidence. Although there may be others, two criteria that immediately come to mind are the potential effect of the state's misconduct on the reliability of the evidence, and the nature of the police's conduct that led to the accused's participation in the production or obtaining of the evidence. [240] In addition to the foregoing, in the case at bar I am satisfied that the introduction of this evidence would not render the trial unfair because the Crown has clearly established on a balance of probabilities that the evidence would have been discovered by alternative non-conscriptive means: see Stillman at para. 119. In the case of Doak, I find that there is a significant basis of other direct evidence and of supporting circumstantial evidence which could serve a function similar to the voice identification evidence. With respect to Newberry, I find that there is a smaller, but still substantial amount of direct and circumstantial evidence which could suggest voice identification absent the direct voice identification evidence of Corporal McDougall. In the case of Adam, the evidence of Ms. D. provides a sufficient basis for voice identification. In the case of Zacharuk, the overwhelming other direct and circumstantial evidence to which I have already alluded serves a similar function as the voice identification by Staff Sergeant Goddard. [241] Where breaches of s. 10(b) yield conscriptive evidence, the admission of that evidence will often have a great impact on trial fairness. One of the main purposes of s. 10(b) is to protect an individual's right against self-incrimination. Thus, the denial of the right to counsel strikes at the heart of an individual's decision of whether to provide incriminatory evidence. If that decision is made without the benefit of counsel, then the decision to incriminate one's self invariably will not be an informed or voluntary decision. [242] The nature of the police's conduct that yielded the evidence is also relevant because it is directed to the extent of the state's interference with the accused's autonomy and with the accused's freedom of choice of whether to participate in the creation of self-incriminatory evidence. The more invasive the interference, the more serious the impact on trial fairness; the less invasive the interference, the less serious the impact on trial fairness. [243] Bearing in mind the spectrum of invasiveness in issue, I find that any interference by police cannot amount to more than a minor intrusion on the accused's autonomy. The taking of the voice sample was insubstantial, of very short duration and left no lasting impression. There was no penetration of the appellant's body and no substance removed from it. Apart from that, the jurisprudence that existed at the time of this alleged breach clearly indicated that these types of interactions did not amount to a search. See Piché; Parsons; Pelland; Shortreed; and Dilling. [244] Taking those decisions into consideration, I arrive at the conclusion that obtaining voice evidence from Doak, Newberry, Adam and Zacharuk did not substantially infringe trial fairness, if it did so at all. In any event, the reliability of the evidence and the nature of the police's conduct that led to their obtaining the evidence suggest that even if the admission of this evidence would have some impact on trial fairness, that impact is minimal. In my view, the impact would not have been so great that it precludes consideration of the other two Collins factors. [245] I therefore pass to the second Collins factor, the seriousness of the violation. (b) The Seriousness of the Violation [246] The seriousness of a Charter violation requires a consideration of four factors: the obtrusiveness of the search; the individual's expectation of privacy in what was searched; the existence of reasonable and probable grounds that the individual searched has committed an offence; and the good faith of the police in conducting the search: see R. v. Caslake, [1998] 1 S.C.R. 51, 155 D.L.R. (4th) 19, 121 C.C.C. (3d) 97 at para. 34; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 at para. 53. [247] The inquiry into the seriousness of the Charter violation looks both at the significance of the violation and at the nature of the police conduct that brought about the violation. The more significant the constitutional violation, the stronger the claim to require exclusion of the evidence. Similarly, the more blameworthy the police conduct, the stronger the claim that the trial court must disassociate the judicial process from that conduct by excluding its evidentiary product: see R. v. Kokesch, [1990] 3 S.C.R. 3 at 27-28; R. v. Feeney, [1997] 2 S.C.R. 13 at 65. [248] The seriousness of a violation of s. 8 depends on the accused's expectation of privacy in the objects searched: R. v. Belnavis, [1997] 3 S.C.R. 341, 151 D.L.R. (4th) 443, 118 C.C.C. (3d) 405 at paras. 38-40. [249] In R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30 ("Buhay"), Arbour J. dealt with the issue of seriousness of the Charter violation. She stated at para. 52: The second set of factors relates to the seriousness of the Charter violation. The seriousness of the police's conduct depends on "whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant" (Therens, supra, at p. 652). It is also relevant to consider whether the violation was motivated by a situation of urgency or necessity: Therens, at p. 652; R. v. Silveira, [1995] 2 S.C.R. 297 at p. 367; Law, supra, at para. 37. Also pertinent is whether the police officer could have obtained the evidence by other means, thus rendering her or his disregard for the Charter gratuitous and blatant: Collins, supra, at p. 285; Law, at para. 37. The court may also look at some or all of the following factors: the obtrusiveness of the search, the individual's expectation of privacy in the area searched and the existence of reasonable and probable grounds (R. v. Caslake, [1998] 1 S.C.R. 51, at para. 34). As we have seen, the trial judge is entitled to considerable deference on this point: Law, at para. 38. [250] In Law, Bastarache J. stated at para. 37: At this stage of Collins, supra, the conduct of Corporal Desroches in conducting an unauthorized search, as opposed to the fairness of the subsequent trial, informs the analysis. The seriousness of this conduct depends, first, on "whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant": R. v. Therens, [1985] 1 S.C.R. 613, at p. 652. Also relevant is whether the police officer could have obtained the evidence by other means, thus rendering his disregard for the Charter gratuitous and blatant: Collins, supra, at p. 285. [251] As I stated previously, any Charter violation was less serious in light of the jurisprudence that was in existence at the time of the acts. I also repeat that the taking of the voice sample was insubstantial, of very short duration and left no lasting impression. There was no penetration of the appellant's body and no substance removed from it. I have also found that the police were, at the time of the search, acting in good faith, relying on the jurisprudence that existed at the time. Thus, I do not think it can be said that, in this case, the police deliberately subverted the appellant's constitutional rights. [252] I now turn to the third Collins factor, the question of whether excluding the evidence would have a more serious impact on the repute of the administration of justice than admitting it: Buhay at para. 67. (c) Impact of Exclusion of Evidence on the Repute of the Administration of Justice [253] The third branch of the Collins test focuses the inquiry on whether excluding the evidence would have a detrimental effect on the administration of justice. Generally, this turns on whether the impugned evidence forms a crucial part of the Crown's case, and where trial fairness is not affected, the seriousness of the underlying charge. [254] The third set of factors may be said to deal with the societal interest in the effective prosecution of crime. Under this heading, the courts should consider such matters as the seriousness of the offence and the importance of the evidence to the Crown's case. In R. v. T.A.V. (2001), 299 A.R. 96, 2001 ABCA 316, McClung J.A., for the court stated at para. 37: The effect of the suppression of relevant evidence on the repute of the justice system involves the consideration of such things as: The degree of social evil represented by the crime in question, society's interest in the effective prosecution of crime, the reliability and discoverability of the evidence, whether the evidence is essential to substantiate the charge, and the response of the reasonable person to the exclusion of the evidence and acquittal of the accused. [R. v. Smith (1998), 219 A.R. 109 (Alta.C.A.)] Here, reiterating the concerns long expressed by this Court about the unlawful possession of firearms, the admission of this evidence is not likely to bring the administration of justice into disrepute. [255] In Buhay, Arbour J. stated at para. 73: The decision to exclude evidence always represents a balance between the interests of truth on one side and the integrity of the judicial system on the other: R. v. Simmons, [1988] 2 S.C.R. 495, at p. 534. This was well put by Doherty J.A. in a recent decision of the Court of Appeal for Ontario, R. v. Kitaitchik (2002), 161 O.A.C. 169, at para. 47: "The last stage of the R. v. Collins, supra, inquiry asks whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth seeking goal of the criminal trial." The trial judge concluded that the vindication of the Charter breach in this case, which was serious, did not extract too great a toll on the truth seeking goal of the criminal justice system. [256] In Law, the court had to deal with documents from a safe that had been stolen and reported stolen to the police. A member of the police department, on a hunch and without a warrant, photocopied the documents that were found in the accused's stolen safe and sent the photocopies to the tax department. This resulted in the accused being charged under the Excise Tax Act. The court found a s. 8 breach and had to deal with the effect of exclusion of this evidence on the administration of justice. Bastarache J. stated at para. 39: At the third stage of Collins, supra, the inquiry focuses on whether excluding the evidence would have a detrimental effect on the administration of justice. In general, this turns on whether the unconstitutionally obtained evidence forms a crucial part of the Crown's case and, where trial fairness is not affected, the seriousness of the underlying charge. In this case, it is conceded the evidence is essential to substantiate the Crown's case and, for that reason, can only be excluded at the risk of undermining the administration of justice. However, this factor must be weighed against the quasi-criminal nature of the offence and the fact that it was proceeding summarily. Like the trial judge, I conclude it is the admission of this key piece of Crown evidence, not its exclusion, that would risk bringing the administration of justice into disrepute. [257] However, important and reliable evidence necessary to sustain a serious charge may nonetheless be excluded if its admission would exact too heavy a toll on the long-term integrity of the justice system. The kinds of considerations where this might be so are absent in this case. We have no evidence to suggest that the constitutional breaches were willful or flagrant, or that they reflected institutional indifference to individual rights. [258] In R. v. Lewis (1998), 38 O.R. (3d) 540 (C.A.), Doherty J.A. stated for the court at 554: The third factor to be considered in determining whether evidence should be excluded under s. 24(2) is the effect on the administration of justice of the exclusion of the proffered evidence. In this case, the cocaine was reliable evidence which was essential to the prosecution of a very serious crime. There can be no doubt that the exclusion of this kind of evidence exacts a heavy toll on the repute of the administration of justice. That consequence must be accepted where necessary to preserve trial fairness or where the Charter violations are sufficiently serious to demand the exclusion of the evidence. Trial fairness is not compromised in this case and the seriousness of the breaches is not of a magnitude which warrants the exclusion of this kind of evidence. The cocaine should not have been excluded. [259] In this case, the police did not grossly overstep the bounds of legitimate activity. They read the accused their rights, acted in good faith and used no force. Accordingly, I find that the second and third Collins factors outweigh the first. As such, I find that the exclusion of this evidence would exact a heavier toll on the repute of the administration of justice than its inclusion. I therefore conclude that admitting the evidence would not bring the administration of justice into disrepute. G. CONCLUSION [260] Based on the foregoing reasoning, I find that the voice identification evidence tendered during this voir dire is admissible in the trial. The voice identification evidence presented on this voir dire shall be subsumed into the main trial. "S. R. Romilly, J." The Honourable Mr. Justice S.R. Romilly APPENDIX "A" - McDougall Prior Voice Identifications Call Number May 9, 2004 [Selected Calls] June 16, 2004 [Selected Calls] October 17, 2004 September 20, 2006 Evidence At trial 1 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 2 Doak Doak Doak & Legree 3 Doak Doak Doak Doak & Legree 4 Doak Doak & Newberry Doak & Newberry Doak & Newberry 5 Doak Doak Doak Doak Doak & Legree 6 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 7 Doak Doak Doak Doak & Zacharuk 8 Doak Doak Doak Doak & Richards 9 Doak Doak Doak Doak & Richards 10 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 11 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 12 Doak Doak Doak Doak & Legree 13 Doak & Newberry Doak & Newberry Doak & Newberry 14 Doak Doak Doak Doak Doak & Legree 15 Doak & Newberry Doak & Newberry Doak & Newberry 16 Doak Doak Doak Doak & Legree 17 Doak Doak Doak & Richards 18 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 19 Doak & Newberry Doak & Newberry Doak & Newberry 20 Doak Doak Doak Doak & Legree 21 Doak Doak Doak 22 Zacharuk & Wasilewicz 23 Doak Doak Doak Doak & Legree 24 Adam Doak & Adam Doak & Adam Doak & Adam 25 Doak & Newberry Doak & Newberry Doak & Newberry 26 Doak Doak & Doak & Legree 27 Doak & Adam Doak & Adam Doak & Adam Doak & Adam 28 Doak & Adam Doak & Adam Doak & U/M 29 Doak Doak Doak & U/M 30 Doak & Newberry Doak & Newberry Doak & Newberry 31 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 32 Doak & Adam Doak & Adam Doak & Adam 33 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 34 Doak Doak Doak & Richards 35 Doak Doak Doak Doak Doak & Schindler 36 Doak Doak Doak & Legree 37 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 38 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry & UF 39 Adam Adam Adam Zacharuk & Adam 40 Doak Doak Doak Doak & Legree 41 Doak Doak Doak Doak & Schindler 42 Doak Doak Doak & Legree 43 Doak Doak Doak & Legree 44 Adam Adam Adam 45 Doak & Hamm Doak & Hamm Doak & Hamm Doak & Hamm 46 Doak & Adam Doak & Adam Doak & Adam Doak & Adam 47 Doak & Adam Doak & Adam Doak & Adam Doak & Adam 48 Doak Doak Doak Doak & Fabris 49 Doak Doak & Adam Doak & Adam Doak & Adam 50 Doak Doak Doak Doak & Schindler 51 Doak Doak Doak Doak & Legree 52 Adam Adam Adam Zacharuk & Adam 53 Doak Doak Did not listen. Doak & Schindler 54 Doak Did not listen. Doak & Legree 55 Doak & Newberry Doak & Newberry Did not listen. Doak & Newberry 56 Doak & Newberry Doak Doak Doak & Legree 57 Doak Doak Doak Doak & Legree 58 Doak & Hamm Doak & Hamm Doak & Hamm Doak & Hamm 59 Doak Doak Doak & Legree & UM 60 Doak Doak Doak Doak & UM 61 Doak Doak Doak & Legree 62 Doak Doak Doak Doak & Legree 63 Doak Doak Doak & Legree 64 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 65 Doak & Newberry Doak & Newberry Doak & Newberry 66 Doak Doak Doak & Legree 67 Doak Doak Doak & Legree 68 Doak Doak Doak Doak & Legree 69 Doak Doak Doak Doak & UM 70 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 71 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 72 Doak Doak Doak & Legree 73 Doak Doak Doak Doak & UM 74 Doak & Adam Doak & Adam Doak & Adam 75 Doak Doak Doak Doak & Legree 76 Doak Doak Doak & Legree & UM-2nd call. 77 Doak Doak Doak Doak & UM 78 Doak & Newberry Doak & Newberry Doak & Newberry 79 Doak Doak Doak Doak & Legree 80 Doak Doak Doak Doak & Legree 81 Doak Doak Doak & Legree 82 Doak & Newberry Doak & Newberry Doak & Newberry 83 Zacharuk & UM 84 Doak Doak Doak Doak & Legree 85 Doak Doak Doak Doak & Fabris 86 Doak Doak Doak Doak & Wasilewicz 87 Doak Doak Doak Doak & Legree 88 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry & UM-2nd call. 89 Doak Doak Doak Doak & Fabris 90 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 91 Doak Doak Doak & Wasilewicz 92 Doak Doak Doak Doak & Higgins 93 Doak Doak Doak Doak & Legree 94 Doak & Hamm Doak & Hamm Doak & Hamm Doak & Hamm Doak & Hamm 95 Doak Doak Doak Doak & Legree 96 Doak Doak Doak & Legree 97 Doak Doak Doak & Legree 98 Doak Doak Doak Doak & Schindler 99 Doak Doak Doak Doak & Jacknife 100 Doak Doak Doak Doak Doak & Legree 101 Doak Doak Doak & Stahl 102 Doak Doak Doak & Straumietis 103 Doak Doak Doak & Legree 104 Doak Doak Doak & Legree 105 Doak Doak Doak & Legree 106 Doak Doak Doak & Legree 107 Doak & Hamm Doak & Hamm Doak & Hamm 108 Doak Doak Doak Doak & Legree 109 Doak & Hamm Doak & Hamm Doak & Hamm Doak & Hamm 110 Doak Doak Doak Doak & Schindler 111 Doak Doak Doak & Jacknife 112 Doak Doak Doak Doak & Legree 113 Doak Doak Doak & Legree 114 Doak & Hamm Doak & Hamm Doak & Hamm 115 Doak Doak Doak Doak & Legree 116 Doak Doak Doak & UM & Yordanov 117 Doak Doak Doak Doak & UM & Yordanov 118 Doak Doak Doak Doak & Legree 119 Doak & Hamm Doak & Hamm Doak & Hamm 120 Doak Doak Doak Doak Doak & Legree 121 Doak Doak Doak & Legree 122 Doak Doak Doak Doak & Legree 123 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 124 Doak Doak Doak & Legree 125 Doak Doak Doak Doak Doak & Legree 126 Doak Doak Doak & Colorado & Zacharuk 127 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 128 Doak & Newberry Doak & Newberry Doak & Newberry 129 Doak Doak Doak Doak & Legree 130 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 131 Doak Doak Doak Doak Doak & Legree 132 Doak Doak Doak & Schindler 133 Doak Doak Doak Doak & Legree 134 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 135 Doak Doak Doak Doak & Legree 136 Doak Doak Doak Doak Doak & Legree 137 Doak Doak Doak Doak & Schindler 138 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry 139 Doak Doak Doak Doak & Legree 140 Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry Doak & Newberry