HMTQ v. Dorsay

2003 BCSC 1797 HMTQ v. Dorsay Citation: HMTQ v. Dorsay Date: 20031128 2003 BCSC 1797 Docket: CC990255 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

HER MAJESTY THE QUEEN

AGAINST

WILLIAM MORLEY DORSAY

REASONS FOR JUDGMENT

OF THE HONOURABLE MR. JUSTICE SCARTH Ruling on Voir Dire Re Admissibility of Accused's Statement to Officer Klokow on 10 January 1995. BAN ON PUBLICATION ss. 539(1) and 648

CRIMINAL CODE OF CANADA Counsel for the Crown: Robert G. Ruttan Samiran P. Lakshman Counsel for the Defendant: James W. Millar Pamela A. Smith-Gander [1] The question on this voir dire is whether the inculpatory statements made by the accused, William Morley Dorsay, to an American police officer, Michael J. Klokow, in the State of Washington during the night of 10 January 1995, are admissible on the accused's trial for non-capital murder in this Court. [2] In Reasons for Judgment filed 17 November 2003 I stated that I concluded the Crown had proven beyond a reasonable doubt that the accused made the statement freely and voluntarily. [3] The issue presently before the Court is whether the statement ought to be excluded on the ground its admission into evidence would undermine the fairness of the trial. [4] The circumstances relating to the statement and the issue of voluntariness are set out in the reasons filed on 17 November. In deciding the issue of trial fairness it will be necessary to refer to additional evidence in these reasons. [5] On the question of trial fairness, the defence argues: (1) that there was unfairness in the manner in which the statement was obtained; and (2) that there was denial of due process in connection with the statement such that its admission into evidence would result in an unfair trial. The defence submits that the Court ought to grant a judicial stay of proceedings but acknowledges that the Court must first consider a less drastic remedy and thus submits in the alternative that the statement should be excluded from the jury's consideration.

MANNER OF OBTAINING THE STATEMENT [6] With respect to the exclusion of evidence which has been obtained by the state in an unfair manner, the guiding principles are set out by the Supreme Court of Canada in R. v. Harrer, [1995] 3 S.C.R. 562 and R. v. Terry, [1996] 2 S.C.R.

207. In Harrer, McLachlin J. (as she then was) stated at p. 587: unfairness in the way evidence is taken may affect the fairness of the admission of that evidence at trial, but does not necessarily do so. [7] In Terry, McLachlin J. (now C.J.C.) wrote at pp. 218-219 that a person facing trial in Canada may be entitled to a remedy for abuse in the course of foreign evidence-gathering under provisions of the Charter such as the s. 11(d) right to a fair trial and the s. 7 right not to be deprived of liberty except in accordance with the principles of fundamental justice. As Mr. Justice La Forest, writing for the majority, noted in Harrer, at p. 578, the trial judge has a duty, constitutionized by the enshrinement in the Charter of the right of an accused to a fair trial, to exercise properly his or her judicial discretion to exclude evidence that would result in an unfair trial. [8] The facts relevant to this aspect of the issue of trial fairness, stated summarily, are as follows. On 10 January 1995, at about 2:00 o'clock in the morning, the accused, Mr. Dorsay, approached Officer Klokow at a B.P. gas station in the City of Sea-Tac in the State of Washington. The service station was located adjacent to the motel in which the accused was staying. He had checked into the motel between 3:00 and 5:00 o'clock in the afternoon of 9 January, following his discharge from a clinic in

Burien, Washington where he was being treated for depression. The accused testified that he checked into the motel because he was concerned the police might be looking for him as the result of a report one of his caregivers at the clinic, Dr. Kent Cannon, made to the Washington Child Protective Service ("C.P.S."). His approach to Officer Klokow came about, he stated, because he wanted to find out whether the police were looking for him or not. At the time he approached the officer, the officer was in the process of filling his car with gasoline and washing the car windows. [9] As the Reasons for Judgment filed on 17 November 2003 indicate, there is a conflict in the evidence between the accused and Officer Klokow as to what was said at the time the accused approached the officer. According to the accused, he asked the officer to check and see if the police were looking for him. The officer asked: "Why", so he told him that he had just been discharged from a hospital in the area, that one of the doctors in the hospital had made a report to C.P.S. about him, and that as a result of that report he was concerned the police might be looking for him in Washington State. The officer continued washing his windows and then came over and, according to the accused, said: Well, if you want me to look into that and find out for you, get into my car and I'll do my best to find out for

you. [10] At that point, the accused told the Court, the officer opened the back door of the police car, put him in, shut the door, and finished cleaning the windows and filling the car with gasoline. The back seat, in effect, was contained within a cage; in order to get out of the car the officer would have to open the car door from the outside; it could not be opened from within. [11] Officer Klokow's version of what was said at the time the accused approached him differs from that of the accused. According to Officer Klokow, he was washing his car windows when the accused came out of the convenience store part of the service station and approached him. The accused asked if he could speak with him and then asked what a person should do if they committed a crime in another country. The officer looked at the accused and asked him what he did. Officer Klokow testified that the accused responded: "I killed my son." Officer Klokow then asked the accused when he killed his son, how old his son was at the time, where he (the accused) was from, what brought him to Sea-Tac, where he was staying, where the crime occurred, why he killed his son and how the death got past Canadian officials. In response to his questions, Officer Klokow testified, the accused told him that he killed his son approximately 28 years ago, that his son was three weeks old at the time, that he lived in Blaine,

Washington and was attending the outpatient clinic at Highline Hospital for depression, that he was staying in room 239 in the motel adjacent to the service station, that the crime occurred in the west side of Vancouver, British Columbia, that he killed his son because he was in a bad relationship with his wife, who was into witchcraft, and he did not want to raise a child "under the prevailing circumstances", and that he took the child into the park "under the guise of taking it for a walk" and suffocated him by placing a plastic bag over his head. The doctors at the hospital attributed the child's death to the pneumonia from which the child at the time was suffering. Officer Klokow said he then told the accused that as a patrol officer he could not assist him, but that if he wished he could arrange to have him speak with a major crimes detective. He asked the accused, he testified, if he would be willing to accompany him back to the precinct in Burien. The accused agreed. [12] According to Officer Klokow this entire conversation including the accused's confession, took place outside the police car before the accused got in the car and whilst he, Klokow, was in the process of cleaning his windows and topping off his tank. He and the accused, Officer Klokow stated, were standing right next to the gas pumps. [13] The accused, on the other hand, testified that there was little

discussion between him and the officer before he was put into the police car. He testified in cross-examination that he asked the officer "about two questions outside the car" and was told that if he wanted an answer he had to get inside the car to receive answers. What is critical is the accused's denial that whilst he was with the American police officers during the night of 10 January 1995 he confessed to having killed his son. [14] Further conflict between the testimony of the accused and Officer Klokow arose in connection with the length of time they spent at the service station whilst Klokow awaited instructions from his supervising officer before he and the accused drove to the precinct office to await the arrival of the major crimes detective. According to the accused they were at the service station for "probably an hour or so". Officer Klokow thought it was around 20 to 25 minutes, based on when he thought he started writing his Officers Witness Statement at the precinct, until it was pointed out to him in cross-examination that he recorded the start time on that statement as 3:23 a.m., almost an hour and one-half after the accused initiated contact with him at the service station. He acknowledged that he must defer to the times recorded by Detective Corey. [15] I refer to these matters at this point to emphasize that Officer Klokow did not record at what moment the

accused was put into the police car, how long they remained at the service station or when they arrived at the precinct. Nor did he record whether, upon arrival at the precinct, he put the accused in a locked jail cell. He thought it "possible" he did so for a brief time while he went looking for the Sergeant, but does not now recall. The accused testified that his belt was taken and he was kept in a locked cell for about five minutes. [16] In reaching the conclusion on 17 November 2003 that the Crown had proved beyond a reasonable doubt that the accused had made his statement to Officer Klokow freely and voluntarily I found as facts: (1) that the statement was made outside the police car at the time of the accused's initial contact with Officer Klokow; (2) that there was "some evidence" that the statement was made, but whether it was made in the terms alleged by Officer Klokow would be for the jury to decide; (3) that neither sleep deprivation, depression, the effects of alcohol nor the intimidating effects of being searched and then placed in the back of the police car by an armed police officer, put briefly in the jail cell at the precinct, and spending overall nearly three hours with the police induced the accused to make the statement in issue. Similarly, the accused's testimony that just before he left the precinct at 4:45 a.m. for the drive back to his motel, Officer

Klokow shook his note pad at him and said words to the effect: "This is not going to go away", cannot be said to have induced the accused to make a statement. According to the accused he did not confess to having killed his son or give a statement to anybody that night. To borrow words from the reasons of Mr. Justice Iacobucci in R. v. Oickle, [2000] 2 S.C.R. 3, at p. 43: the evidence, including that of the accused, establishes beyond doubt that neither threats nor promises nor the lack of an operating mind nor police trickery unfairly denied the accused his right to silence. [17] I referred earlier in these reasons, and in the reasons filed on 17 November 2003, to the want of a proper record relating to the interrogation of the accused by the American police and the interaction between the accused and those police during the night of 10 January 1995. This want of a proper record did not, I find, impact upon the voluntariness of the statement. It does, I find, impact on the issue of trial fairness and the question of whether the statement ought to be admitted. [18] As I related in the reasons of 17 November, Officer Klokow testified that he did not have a tape recorder with him in his police car at the time the accused made his confession. Recording equipment was available at the precinct but was not used because the accused, according not only to Officer Klokow and Detective

Corey but also the accused, during the 55 minutes the accused was with the two officers at the precinct, declined to give a statement. What is now available to the Court as the "record" is Officer Klokow's Officers Witness Statement set out at para. 27 on pages 16-17 of the reasons of 17 November. Both his "scratch notes" which he used to prepare his Officers Witness Statement and Detective Corey's notes made during his interview of the accused which he used to prepare his report have been destroyed. [19] I have pointed out certain significant omissions in Officer Klokow's Officers Witness Statement. More significantly in terms of trial fairness are the following omissions: (1) Detective Corey's statement to the accused that what he said was "off the record". Detective Corey confined the remark to a request for the name of the police officer to whom the accused had spoken in Vancouver. The accused, on the other hand, testified that he was assured by the two officers everything he said was "off the record". (2) Detective Corey, in similar fashion, also told the accused that "regardless of what he told me, he was not going to be arrested". As with the "off the record" comment, this remark was not the truth. Detective Corey knew he had no jurisdiction to arrest Mr. Dorsay for a crime committed outside the United States unless he had the appropriate warrant. On the other hand,

Detective Corey knew that if extradition proceedings were sought the accused could be arrested on a warrant which is what in fact happened in March, 1998. "Regardless of what you tell me you are not going to be arrested" was misleading so far as the accused was concerned. His statement to Officer Klokow did in fact lead to his arrest. [20] I pause to note that given the evidence before the Court I did not find these instances of "police trickery" induced the accused to confess and thus voluntariness was not negated: R. v. Stewart (1980), 54 C.C.C. (2d) 93 (Alta. C.A.), at p. 103 et seq. What is significant, in my judgment, is that matters of substance are said to the accused by the police during their interrogation of him which are not recorded. [21] I find further support for the conclusion that matters of significance which arose during the officers' discussions with the accused were not recorded in the testimony of Officer Klokow, set out at para. 21 of the reasons of 17 November, to the effect that during his interrogation of the accused Detective Corey was not asking the accused "about the case itself that much". (3) At approximately 4:15 a.m. Officer Klokow telephoned the clinic where the accused had been receiving treatment for depression. The clinic was "uncooperative" and refused to provide a telephone number for the accused's main psychotherapist at the clinic, Dr.

Kent Cannon. Officer Klokow then telephoned another of the accused's caregivers, Mr. Clifford Ellyson, and spoke with him. The accused was then put on the line with Mr. Ellyson. The simple point here is that neither the discussion Officer Klokow had with the hospital nor the discussion he had with Mr. Ellyson was recorded. Nor is there a record of the officers' discussion with the accused during his interrogation with respect to police contact with the hospital and Mr. Ellyson. I must not speculate on what, if anything, of significance was said to Klokow by either the hospital or Mr. Ellyson: R. v. Fuller (1973), 1 N.R. 110 (S.C.C.), at p. 112, but both are evident sources of the sorts of statements the accused is alleged to have made to Officer Klokow and thus a record ought to have been made of the discussions. (4) The inadequacy of the record becomes most significant when the testimony of Officer Klokow as to what he did and did not record regarding his and Detective Corey's discussions with the accused is considered. He testified: "What I documented here [in his Officers Witness Statement] was the involvement that I had with Mr. Dorsay that I felt at the time was pertinent to the incident he was reporting to me". (my underscoring). Officer Klokow went on in his testimony to agree that there was an awful lot of what he characterized as "idle chatter" that occurred during the

course of the time he was with the accused which he had not recorded and now has no ability to recall. [22] In refusing to admit into evidence the statement of an accused which had been edited by the police, Barrette-Joncas J., in R. v. Smith (1981), 60 C.C.C. (2d) 327 (Que. Sup. Crt. - Crim. Div.), wrote these words at p. 328: The Court cannot accept that police officers edit a declaration by taking down what they think is pertinent and only bring before the Court an edited version of what an accused has said, thereby forcing him to testify as to what was left out. An accused who makes a declaration that the Crown sees fit to bring in evidence is entitled to have it brought in its entirety before the jury, subject obviously to its pertinence. But it is not for police officers to decide what is pertinent and what is not. (my emphasis) [23] This paragraph is consistent with the principle that if the Crown elects to adduce evidence of an accused's out-of-court statement it must put in the whole of the statement including the parts that are favourable to the accused. [24] I do not suggest that a verbatim record is required, albeit that would no doubt be ideal in an ideal world. Nonetheless, as Mr. Justice Kaufman wrote in his text Admissibility of Confessions, 3rd. ed. (1979), at p. 139: When questions are asked, it is of the utmost importance to keep a complete record of all

questions and answers, and to resist the temptation to reduce to writing only that part which inculpates the accused. Indeed, failure to recollect the complete conversation may jeopardize an otherwise acceptable confession, but once again this is a matter of appreciation for the judge. [25] Let me say that I do not find that the two American police officers acted in bad faith or were guilty of dishonourable conduct in their dealings with the accused on 10 January 1995. In reaching this conclusion I have taken into consideration their testimony in this Court, including Officer Klokow's lack of plausibility in certain respects (see para. 92 of the reasons of 17 November 2003) and the resort to "police trickery" by Detective Corey discussed infra. One cannot expect an interrogation at a police precinct to resemble afternoon tea at the vicarage. [26] Nor is it the role of this Court to dictate to American police officers how they should conduct interrogations. Seemingly, under U.S. law, the police would require the accused's and their own consents to record the conversations. No consents were sought in this instance. [27] Here we are concerned with the fairness of the trial in this Court. [28] After consideration of the evidence I am left with the feeling that the record is not a reliable account of the interrogation of the accused by the police that night. The omissions I have

identified lead me to be concerned that matters favourable to the accused have been omitted. As in R. v. Smith, supra, the statement in issue is not the accused's; it is Officer Klokow's interpretation of what was pertinent. [29] In the passage from R. v. Smith quoted infra, I emphasized the words "thereby forcing him to testify as to what was left out". [30] The fact that an accused is driven to taking the stand in his own defence cannot of course be said to automatically result in an unfair trial. The Crown, during the case for the prosecution, may lead evidence of so incriminating a nature that an accused is forced to shed his right to silence and testify in his own behalf or stand condemned. That does not amount to trial unfairness. [31] This case in my judgment differs from the ordinary. To make full answer and defence in the face of the statement as it is alleged against him by Officer Klokow the accused must take the stand. He would necessarily be exposed to cross-examination on his disclosures to his caregivers in Burien, Washington. (See paras. 84-85 of the reasons filed 17 November 2003.) Given the unreliability of the record of the interrogation by the police of the accused, I am not satisfied exposure to cross-examination on the accused's disclosures to his caregivers would be entirely his fault. [32] It may fairly be asked why cross-examination before the jury of

the accused on his communications to his psychotherapists would be unfair. Those communications enjoy no privilege from disclosure in this Court. One answer is the uncontradicted testimony of the accused that when he and his wife met with a representative of the clinic in Washington before embarking on the course of therapy he was assured of "absolutely total" confidentiality over his communications and records at the clinic. [33] Such an assurance standing alone would not suffice to create unfairness in this trial of such a degree as to warrant exclusion of the statement to the police. [34] The reasons I think cross-examination of the accused on his clinical records before the jury would be unfair are in essence set out in the Ruling I gave on 2 December 2002 to the effect that the accused was denied due process which required that he be permitted to have a court in the United States with jurisdiction decide the privilege issue regarding those records before they were sent over the border to Canada and their contents disseminated or, I would add, used to cross-examine the accused on his statement before the jury. [35] The matter is not free from difficulty. I find however that the accused has met the onus resting upon him of establishing unfairness in the way the statement was taken as a result of the unreliable record and that admission of the statement at trial would adversely affect the fairness of the trial. The appropriate remedy in my judgment is an order excluding the evidence. [36] Notwithstanding the able submissions of counsel I do not find a judicial stay of the proceedings would be appropriate. "W.B. Scarth, J." The Honourable Mr. Justice W.B. Scarth