R. v. Oliynyk, Lepage and Ferris

2005 BCSC 386internet R. v. Oliynyk, LePage and Ferris IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Oliynyk, Lepage and Ferris, 2005 BCSC 386 Date: 20050228 Docket: X065537-1 Registry: New Westminster Regina v. DAVID JAMES OLIYNYK JOSEPH ELWOOD ROGER LEPAGE LLOYD ALLAN FERRIS BAN ON PUBLICATION OR BROADCAST BY THE MEDIA INCLUDING NEWSPAPERS, RADIO AND INTERNET, OF ANY EVIDENCE HEARD, SUBMISSIONS MADE OR RULINGS GIVEN IN THE ABSENCE OF THE JURY UNTIL THE JURY HAS RENDERED ITS VERDICT AND THE TRIAL IS OVER. - BAN ON PUBLICATION HAS BEEN LIFTED ON NOVEMBER 17, 2005 Before: The Honourable Madam Justice MacKenzie Ruling on Voice Identification Evidence February 28, 2005 Counsel for the Crown: M. Krotter; L. Leclair Counsel for the Defence, Oliynyk: J. Conroy, Q.C. Counsel for the Defence, LePage: P. Benning Counsel for the Defence, Ferris: D. Silverman Place of Trial/Hearing: New Westminster, B.C. [1] These are the reasons for my ruling on February 28, 2005 that the voice identification evidence for each accused is admissible. [2] The three accused, Oliynyk, Lepage and Ferris, are charged with conspiracy to import and conspiracy to traffic in cocaine between January 22, 2001 and July 10, 2001. The case against them depends upon telephone calls intercepted pursuant to authorizations issued under Part VI of the Criminal Code, so voice identification or recognition is important. [3] Each accused submits the police obtained evidence of voice identification in circumstances that violated his rights under ss 7 and 10(b) of the Charter and applies to exclude the evidence under s. 24(2). [4] The police obtained the evidence from each accused in somewhat different circumstances, so I will set them out individually. None of the accused waived his right to speak to counsel. All counsel agreed that the evidence on this issue from the preliminary inquiry would be the evidence on this voir dire, along with the additional testimony of Cpl. Applejohn, Cst. Bellamy, and Cpl. Sellinger. 1. Joseph Elwood Roger Lepage [5] On July 11, 2001, at approximately 6:45 a.m., Cpl. Applejohn and Cst. Bellamy arrested Mr. Lepage on a warrant at his home in Peachland, British Columbia. [6] Constable Bellamy was in full RCMP uniform and had parked his marked police car in the driveway. Corporal Applejohn was not wearing a police uniform. [7] The police had decided that Cpl. Applejohn, rather than another member, would effect the arrest of Mr. Lepage because it would be a potential opportunity to obtain voice identification evidence. Corporal Applejohn had been working ten hour shifts in the monitor room in Vancouver for three months on this project. His role was to analyze telephone calls intercepted pursuant to authorizations, so he was familiar with the relevant voices in this investigation. [8] Surveillance of both Mr. Lepage and his residence on the morning of July 11, 2001, left no doubt that Mr. Lepage was home when Cpl. Applejohn and Cst. Bellamy approached. The officers had not attempted to obtain authorization under s. 529.1 of the Criminal Code (a "Feeney" Warrant) to enter Mr. Lepage's residence to execute the warrant. [9] Mr. Lepage was on an enclosed deck or porch when Cpl. Applejohn said to him, "Gerry, I need to talk to you for a minute. Can you come down and see me?" Corporal Applejohn knew from the physical description, the car Mr. Lepage had driven and other information that he was speaking to the right person. [10] Mr. Lepage cooperated and came down from the deck. Corporal Applejohn asked, "Have you spoken to Nick since yesterday?" Mr. Lepage responded, "No." Corporal Applejohn then said, "I have a warrant for your arrest." Lepage responded, "A warrant for what?" [11] By this time, Mr. Lepage was in the yard with the officers. Corporal Applejohn then told Mr. Lepage he was being arrested for conspiracy to import cocaine and advised him of his rights under s. 10(b) the Charter. Corporal Applejohn gave Mr. Lepage the information component of his rights and asked whether he wanted to call a lawyer. Mr. Lepage said, "Yeah, I do". These three words, together with the five words he had previously uttered, were sufficient to convince Cpl. Applejohn that he had identified Mr. Lepage's voice as that of "Gerry" on the intercepted telephone calls. [12] Corporal Applejohn told Mr. Lepage he could contact counsel after he was taken to the RCMP detachment in Kelowna. [13] Mr. Lepage was given that opportunity and a message was left for the Legal Services duty counsel to call the detachment. [14] Corporal Applejohn and an RCMP civilian guard carried out the booking-in process of photographing and fingerprinting Mr. Lepage. Acting on previous instructions from his superiors, Cpl. Applejohn released Mr. Lepage on a Promise to Appear without conditions. [15] Cst. Bellamy's testimony differed in some respects from Cpl. Applejohn's, but I do not think Cst. Bellamy's memory is as accurate as Cpl. Applejohn's. Corporal Applejohn was an investigator on the case. He was there for the specific purposes of executing a warrant for the arrest of Mr. Lepage, and listening to see if he could recognize Mr. Lepage's voice. [16] Constable Bellamy, on the other hand, had just been asked that morning to assist Cpl. Applejohn. He was not involved in the investigation. In any event, the differences in the evidence do not matter because I find that Mr. Lepage was detained when Cpl. Applejohn told him he needed to talk to him for a minute and asked him to, "come down and see me." [17] It is true, as the Crown points out, that Cpl. Applejohn testified that had Lepage slammed the door in his face, he would have considered getting a "Feeney" warrant. Nonetheless, I find Cpl. Applejohn's words were a demand or direction that, coupled with a voluntary compliance that resulted in a deprivation of liberty, constituted psychological detention: R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. H.(C.R.) (2003), 11 C.R. (6th) 152 (Man. C.A.); R. v. Johns (1998), 123 C.C.C. (3d) 190 (Ont. C.A.). [18] Specifically, a person in Mr. Lepage's position would have felt he had no choice but to submit to the request of the police at the time. One officer was in uniform and there was a marked police car parked outside his house. The words of Cpl. Applejohn were, in the circumstances, part of the arrest process in this case. Corporal Applejohn's "need" to talk to Mr. Lepage was in order to arrest him. Because he was detained, the police were obliged to inform Mr. Lepage of his s. 10(b) Charter right to counsel. [19] I accept Cpl. Applejohn's evidence that he did not handle the arrest of Mr. Lepage in any way differently than any other arrest. [20] I agree with Mr. Benning, counsel for Mr. Lepage that the point at which Cpl. Applejohn realized he had identified the voice of Mr. Lepage came after his detention, during his arrest and the providing of the s. 10(b) right, but before Mr. Lepage had the opportunity to contact counsel, and before he was cautioned about the right to silence. And I also agree that Cpl. Applejohn went to Kelowna for two reasons: to arrest Mr. Lepage and to listen to his voice for the purpose of voice identification at trial. [21] The decision itself to arrest was appropriate. The police were not required to simply issue a summons to Mr. Lepage in the circumstances of these charges even though he was ultimately released without conditions on a Promise to Appear. The police did use the arrest and the reading of the s. 10 Charter rights as an opportunity to obtain voice identification evidence by using Cpl. Applejohn to effect the arrest. [22] In my opinion, the issue here is whether the police violated Mr. Lepage's ss. 7 and 10(b) Charter rights simply by choosing an arresting officer who was familiar with Lepage's telephone voice so that the arrest could also be an opportunity for voice recognition or identification. In other words, was it constitutionally impermissible to use a routine arrest and provision of Charter rights to also obtain evidence of voice identification? I think not. For the following reasons, I find no violation of Mr. Lepage's ss. 7 and 10(b) Charter rights. The voice identification evidence is therefore admissible. The Position of Mr. Lepage [23] Mr. Benning argues that the process of arresting Mr. Lepage and reading him his s. 10(b) Charter right was corrupted because Mr. Lepage was compelled, through his assertion of his right to counsel, to provide evidence against himself, that is, the sound of his voice. Mr. Benning complains that the police gathered as evidence the actual words uttered by Mr. Lepage to assert his s. 10(b) Charter right; something which occurred both before he was cautioned about his right to silence and before he had a reasonable opportunity to contact counsel. [24] Mr. Benning submits it was an improper, active elicitation of voice identification evidence to use the arrest and Charter process as an opportunity for voice recognition. Specifically, Mr. Benning contends that the sound of a person's voice is conscriptive evidence that is capable of being improperly "elicited" by the police. He says it can be elicited by what amounts to the functional equivalent of an interrogation as that term is used in R. v. Broyles, [1991] 3 S.C.R. 595 and R. v. McKenzie (2002), 167 C.C.C. (3d) 530 (Ont. C.A.). [25] In addition, he argues that Cpl. Applejohn improperly delayed in providing Mr. Lepage his Charter rights by asking him the question about whether he'd seen "Nick". [26] With respect to the issue of elicitation, Mr. Benning points out that Cpl. Applejohn had listened to numerous hours of intercepted telephone calls. He was thereby very familiar with Mr. Lepage's voice, and it was Cpl. Applejohn and not someone else who was dispatched to arrest Mr. Lepage. Mr. Benning says that the manner of acquiring the voice identification (after detention, during an arrest and providing of Charter rights and assertion of them), is no different from the Broyles situation. [27] In Broyles, the accused was in custody when the police arranged for a "friend" or informer to visit him. The police body-packed the informer who intended to elicit information from the accused about the killing of the victim. The court found the informer was an agent of the police and that parts of the conversation between the accused and the informer were the functional equivalent of an interrogation that breached the accused's s. 7 Charter right to remain silent. Applying the relevant factors with respect to s. 24(2) of the Charter, the court held the evidence ought to be excluded. [28] Although Mr. Benning agreed that the sound of a person's voice is not testimonial evidence, he argues it makes no difference because the evidence emanated from the accused. Mr. Benning submits it violates the accused's ss. 7 and 10(b) Charter rights to use the fact of detention or arrest to obtain evidence of the sound of a person's voice. Specifically, he says the s. 7 breach consists of obtaining voice identification evidence from Mr. Lepage before he was warned that he had the right to remain silent. Discussion [29] The relevant sections of the Charter provide: 7. 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. 10. Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right; [30] Section 7 includes a right to silence which entails the right to choose whether or not to make a statement to the authorities: R. v. Hebert, [1990] 2 S.C.R. 151 at para. 47; Broyles, at para. 17. [31] The obligations imposed on the police by s. 10 (b) are well settled. In R. v. Bartle, [1994] 3 S.C.R. 173 at para. 17, Chief Justice Lamer held: This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if a detainee has indicated a desire to exercise the right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger) [32] Therefore, the question with respect to s. 7 is whether the police obtained evidence of the sound of an accused's voice in a manner that violated his right to silence, including his right to choose whether or not to speak to the police. [33] With respect to s. 10(b) of the Charter, none of the accused waived his right to speak to counsel. There was a duty, therefore, on the police in all three cases to refrain from attempting to elicit evidence from the accused until he had been given an opportunity to speak with counsel. The issue in each case is, did the conduct of the police amount to elicitation of the sound of the accused's voice in violation of his s. 10(b) Charter rights? The Cases Relied Upon by Defence Counsel [34] The following is a summary of the cases relied on by all defence counsel on the issue of whether the voice identifi-cation evidence in this case was obtained in breach of any of the accuseds' ss 7 and 10 Charter rights. [35] In R. v. Ng, [1996] O.J. No. 4851 (C.J.G.D.), there was a lengthy drug investigation that relied in large part on wiretap evidence. Upon arrest, a number of accused were taken to the police station and interviewed on the pretext of obtaining personal information. In most cases, the accused were not informed of their rights to counsel, and some accused were not fully informed of the availability of access to counsel. [36] During the interviews, police employees who had monitored the wiretaps were present to make voice identifications. This purpose for the interviews, and the reason for the presence of the identifying individuals, was not disclosed to the accused as part of a deliberate strategy employed by the police. On this basis, the accused applied to have the voice identification evidence excluded alleging their ss. 7, 8, 10(a) and 10(b) Charter rights had been breached. [37] Keenan J. held there was no obligation on the police to advise a person of their general right to remain absolutely silent. However, he held that the police have an obligation to advise the accused of their Charter rights. In this case, although each accused was properly informed of the offence with which they were charged, the information given was neither complete nor clear with respect to the right to immediately contact counsel. Therefore, the accuseds' s. 10(b) Charter right to be informed of the right to retain and instruct counsel without delay was breached. [38] Furthermore, there would have been nothing objectionable about the interview conducted for the purpose of making voice identification had the police properly informed the accused of the right to retain counsel since the questioning was not coercive and did not employ some form of trick which would have shocked the conscience of the community. However, since the proper warnings were not given, the voice identification evidence was obtained in violation of the accuseds' s. 10(b) rights and Keenan J. excluded the evidence under s. 24(2) of the Charter. [39] In R. v. Wong, [1997] O.J. No. 1379 (C.J.G.D.), the police obtained 26 search warrants in relation to a conspiracy, involving 33 people, to commit fraud and forgery. At one of the three locations included in the search warrants, the police executed the search using heavily armed police officers and a battering ram. When the police entered the location, one of the accused was told in general terms about his right to counsel. However, he was neither given the toll-free telephone number to reach duty counsel nor told he could contact a lawyer at that time. During this exchange, a detective involved in the case recognized the accused's voice from the previous wiretaps. [40] A second accused was given his full right to counsel at the police station, but was not cautioned about his right to remain silent. Shortly after, an officer spoke with this accused on the pretext of obtaining information for his bail hearing, but the true purpose was for the officer, who was familiar with the wiretaps, to obtain voice identification evidence. In this application, the accused sought, among other things, to have the voice identification evidence excluded. [41] Feldman J. found that the first accused had not unequivocally waived his right to counsel before giving his statement and speaking with the detective involved. Therefore, the police breached his s. 10(b) Charter right by not ensuring that he did not want to call a lawyer before making a statement. [42] With respect to the second accused, Feldman J. held that the failure to caution him about his right to silence resulted in the accused not being given the means to understand why it might be important to speak to counsel and for counsel to explain fully his right to remain silent. This constituted a breach of his s. 10(b) Charter right. [43] Furthermore, Feldman J. adopted the reasoning from Ng, and concluded that because voice identification evidence emanates from the accused and is therefore conscripted from him, even though it is identifying only and not self-incriminating, where the evidence is obtained in breach of the Charter, the evidence must be excluded under s. 24(2) as its admission would affect the fairness of the trial and would therefore bring the administration of justice into disrepute. [44] In R. v. Rendon, [1997] O.J. No. 5505 (C.J.G.D.), the four accused were charged with conspiracy to traffic in narcotics and related offences based on wiretap evidence. Upon arrest, three of the accused were taken to the police station, placed in a room on the pretext of being informed of their right to counsel and asked if they wanted to speak with counsel. However, before being allowed to exercise that right, interviews were conducted during which a police employee who had monitored the wiretap was present, ostensibly as an interpreter, for the express purpose of making voice identifications. The accused applied to exclude the voice identification evidence on the basis that it was obtained in a manner which violated their Charter rights. [45] Sharpe J. allowed the application. He held that the strategy adopted by the officers to obtain the voice identification evidence from conversations with the accused for the purpose of advising them of their rights to counsel and ensuring that they had an opportunity to call counsel if they wished, violated ss. 7 and 10(b) of the Charter . [46] In respect of s. 10(b), Sharpe J. held that 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 struck at the very heart of s. 10(b) and constituted a flagrant breach of the constitutional right to counsel. [47] In respect of s. 7, he accepted the reasoning of Feldman J. in Wong and held at para. 90, "the identification of a voice is not a matter 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". [48] Considering the foregoing, Sharpe J. excluded the voice identification evidence under s. 24(2) because the evidence was conscriptive and its admission would clearly affect the fairness of the trial. [49] In R. v. Scarpino, [1998] B.C.J. No. 1563 (Prov. Ct.), the only British Columbia authority relied upon by the defence, the accused were suspected of importing cocaine. A number of authorizations to intercept private communications were obtained by the police. One accused, Sera, was arrested in Ontario. British Columbia officers met with the Ontario arresting officers at the airport and advised Sera of his right to silence and his right to counsel. Sera indicated that he did wish to speak with counsel. The officers did not offer the use of a telephone or give Sera the toll-free number for legal aid, but advised Sera he was to be taken to Victoria. They told him he could either contact a lawyer in Toronto, or wait to contact a lawyer in Victoria. Sera was also informed that duty counsel was available. Sera waited to get to Victoria before he contacted a lawyer. [50] The officers who accompanied Sera to Victoria were familiar with the tapes of the intercepted communications and they used the opportunity to listen to Sera's voice during the trip to compare it to the voice on the tapes. [51] Another accused, Garbutt, was arrested at his home in Nanaimo, and advised of his right to counsel. At the police station, Garbutt was taken to a private area to make a telephone call. There was a list of duty counsel and no policy prohibiting out of town calls. Garbutt claimed that when he asked to call his lawyer in Victoria, he was told he was going to Victoria and could call his lawyer from there. When the officers arrived to transport Garbutt to Victoria, he was again advised of his right to counsel and the officers claimed he did not indicate any desire to contact his Victoria lawyer at that time. [52] The officers used the opportunity of the trip back to Victoria to listen to Garbutt's voice to compare it to the voice on the tapes. In the voir dire, both Sera and Garbutt argued that the voice identification evidence was obtained in breach of their Charter rights and should be excluded under s. 24(2). [53] Bracken P.C.J. held that the evidence obtained from Garbutt would be admitted, while the evidence obtained from Sera would not. [54] In the case of Sera, the duty to inform about the availability of duty counsel had been fulfilled and the constable could have obtained the toll free number had Sera indicated he wished to speak to duty counsel. However, Sera was not afforded an opportunity to contact counsel in Toronto. Once Sera requested access to counsel, he should have been afforded the opportunity to do so without qualification as there was no urgency or other factor that could justify delaying his access to counsel. Thus, the attempt to obtain a voice sample during the flight was in violation of Sera's s. 10(b) right to counsel and was excluded from evidence. [55] In the case of Garbutt, he was properly afforded his right to counsel. There was no evidence to suggest that Garbutt was not able to call his Victoria lawyer from Nanaimo and Bracken P.C.J. accepted the officers' evidence that Garbutt made no specific request to call his lawyer. Garbutt freely and voluntarily engaged in conversation with the officers during the trip and the officers used that opportunity to obtain a voice sample for comparison. There was no attempt to trick Garbutt into conversation for that purpose. Therefore, the voice identification evidence was not obtained in breach of his Charter rights. [56] In R. v. Gordon, [1999] O.J. No. 763 (C.J.G.D.), the accused was charged with attempting to possess cocaine, conspiracy to possess cocaine for the purposes of trafficking and conspiracy to import cocaine. Much of the evidence against the accused consisted of intercepted private communications involving a person believed to be the accused. The accused had been represented by counsel since the time of his initial arrest. [57] At a judicial pre-trial conference some time later, a police officer engaged the accused in conversation regarding the disclosure of documents in the presence of an RCMP civilian employee. The accused argued the officer had done so purely as a pretext to allow the civilian employee to hear the accused's voice in order to compare with a voice on the wiretap recordings. He, therefore, applied to have the voice identification evidence excluded as having been obtained in violation of his s. 7 Charter right to remain silent. [58] In allowing the application, O'Connor J. held that the accused's right to remain silent had been violated by the trick used by the police to lull the accused into providing self-incriminating evidence without realizing he was doing so. Specifically, if the accused had not attended the pre-trial conference, he could have been charged with failing to appear. Thus, he was compelled to be there, and was in a state of detention at the time. Although he had been informed of his s. 10(b) Charter right to counsel when initially arrested, that occurred months before and the police were not representing that they wished to ask the accused questions about the offences with which he had been charged. [59] Moreover, O'Connor J. held that although the police are permitted at law to engage in subterfuge in investigations, here they had failed to ensure that the accused's rights were respected. Finally, as the evidence was conscriptive, it had to be excluded under s. 24(2) of the Charter as its admission into evidence would render the trial unfair. [60] In R. v. Ngo, [2003] A.J. No. 610 (C.A.), the accused was stopped in Vancouver for a traffic violation and arrested as a result of a Canada-wide warrant arising from a charge of conspiracy to traffic in cocaine. Several days later, a police officer from Alberta travelled to execute the warrant and to transport the accused back to Calgary. The officer brought along an expert previously used to interpret Vietnamese and identify voices on a wiretap to see if she could identify the accused's voice. [61] When the officer and the expert met with the accused, the officer immediately advised the accused of the charges, cautioned him and advised him of his right to counsel. When the expert began to interpret, the accused said that he did not need an interpreter and that he wanted to call his lawyer. The expert remained in the room and the officer told the accused that they would not be discussing the case. However, without giving the accused a chance to contact counsel, the officer interviewed him for half an hour, requesting personal information purportedly required to complete a prisoner transfer form, but no such form was ever completed. [62] Based upon her opportunity to hear the accused's voice during that interview, the expert was able to identify the accused as one of the voices she heard on the intercepted telephone calls. At trial, the voice identification evidence was admitted on the basis there was no breach of the accused's right to counsel, the evidence was not conscriptive, and the admission of the evidence would not being the administration of justice into disrepute. [63] On appeal, the court held that the trial judge erred in his interpretation of s. 10(b) of the Charter. The interview was a ruse designed to engage the accused in conversation of sufficient duration to obtain voice identification evidence, while delaying his exercise of his right to counsel. The breach of the accused's right to counsel was thus intentional and for the sole purpose of gathering incriminating evidence. The court held the trial judge's finding that the police spoke to the accused to obtain routine information was also patently unreasonable; it disregarded the totality of the evidence which showed there was no need for the expert's presence except to facilitate this deception. [64] Furthermore, the court found the evidence was conscriptive and, although might have been discovered in any event, the crown could not discharge the onus of proving that on a balance of probabilities. The court then excluded the evidence under s. 24(2) on the grounds that the Charter breach was serious and that the admission of the evidence in the circumstances would bring the administration of justice into disrepute. [65] Finally, in Canada (Attorney General) v. Youkhana, [2004] S.J. No. 436 (Q.B.), the accused was charged with conspiracy to traffic and five counts of trafficking in controlled substances after the police intercepted private communications in the Assyrian language pursuant to a wiretap authorization. The police attended at the accused's residence with an interpreter who had translated the intercepted communications. [66] At the residence, the accused stepped into the hallway and admitted to a police officer that he knew the co-accused. The officer then asked the accused to speak in Assyrian with the interpreter, who advised the officer that the accused's voice was the same as the one on the intercepted communications. The accused was then arrested and advised of his rights under the Charter. [67] The accused sought to exclude all evidence of his statements, including evidence relating to voice identification, on the basis that he was detained without being advised of his right to retain and instruct counsel without delay. [68] Allowing the application in part, Laing J. found the evidence clearly showed that the interpreter was present for the purpose of conducting a voice identification analysis, and that the officer intended to arrest the accused if that analysis were performed. As the police had already concluded that the offences in question had occurred and had reasonable and probable grounds to arrest the accused, he was detained within the meaning of s. 10(b) of the Charter and his liberty restricted from the moment he stepped into the hallway. Thus, the accused's rights were breached as he was not provided with his s. 10(b) Charter right without delay. [69] As for the statements made following this breach, the accused's admission that he knew the co-accused was conscripted evidence and in a minor way incriminating. However, the nature of this evidence was available to the Crown by inference, and Laing J. did not consider that its admission would render the trial unfair. Moreover, the fact the officer sought additional information that he had the right person before effecting the arrest was not egregious, but was prudent conduct. [70] As for the statements made in Assyrian, the officer's request that the accused speak Assyrian to the interpreter was directed solely at conscripting voice identification evidence from the accused which the Crown could not establish was otherwise discoverable. Furthermore, Laing J. concluded that the admission of this conscriptive evidence would have rendered the trial unfair and excluded it under s. 24(2) of the Charter. [71] In my view, all the foregoing decisions, with the exception of Rendon, can be distinguished from the case before me because there was conduct by the police that amounted to elicitation of evidence within the framework set out by the Supreme Court of Canada in Broyles and applied by the British Columbia Court of Appeal in R. v. Rose, [2004] B.C.J. No. 2457 (C.A.); 2004 BCCA598. [72] Specifically, in Ng, the accused were interviewed in the presence of employees who had monitored the wiretaps on the pretext of obtaining personal information before the accused were properly advised of their Charter rights. [73] In Wong, statements were obtained from the two accused before they were properly advised of their Charter rights. [74] In Scarpino, the one accused was not given an opportunity to contact counsel before being placed on a flight from Toronto to Victoria with police officers familiar with the wiretap, even though he had expressly indicated his desire to do so. [75] In Gordon, the police officer spoke with the accused at a pre-trial conference under the guise of merely inquiring about document disclosure when the sole purpose of the conversation was to obtain voice identification evidence. [76] In Ngo, before the accused was given the opportunity to contact counsel, the police officer interviewed the accused in the presence of a civilian employee familiar with the wiretap, under the guise of completing some transfer related paperwork. [77] Finally, in Youkhana, the accused was requested by the police officer to speak in a foreign language to an interpreter who was familiar with the wiretap before he was advised of his Charter rights. [78] In contrast, Mr. Lepage, for example, only spoke five words to Cpl. Applejohn before he was informed of his Charter right to contact counsel. It was during the words spoken by Mr. Lepage in the course of his being arrested and informed of his Charter rights that allowed Cpl. Applejohn to identify Mr. Lepage's voice as one of the voices on the wiretap. Corporal Applejohn was specifically sent to arrest Mr. Lepage because of his familiarity with the investigation and the wiretap. However, there was no elicitation of the voice identification evidence obtained from Mr. Lepage or any intention to obtain an incriminating statement from Mr. Lepage. Moreover, there was no ruse or guise employed by the police to obtain the voice identification evidence. The evidence was simply fortuitously obtained in conjunction with Mr. Lepage's arrest and assertion of his right to counsel. [79] In my view, to find that the evidence obtained in these circumstances was obtained in breach of the Charter would amount to requiring the police to specifically advise Mr. Lepage, before anything else, that he should not speak at all to the authorities or he would risk having his voice used to conduct voice identification. This would be an unreasonable demand to impose on the police. [80] The decision in Rendon is not distinguishable on the same basis as the prior cases. However, in my opinion, if the circumstances in Rendon are characterized within the framework set out in Broyles, the case need not be interpreted as standing for the proposition that it is never permissible for the police to obtain voice identification evidence during the course of administering an accused his or her Charter rights. [81] Specifically, what the police did in Rendon was to consciously and intentionally interview each accused on the pretext of informing them of their right to counsel when the express purpose of the police was to obtain voice identification evidence. I think that conduct amounted to elicitation of incriminating evidence from an accused. [82] That is in contrast to the conduct of the police in the case of Mr. Lepage where the voice identification evidence was simply fortuitously obtained in the course of arresting Mr. Lepage and administering his Charter rights, and where the only intentional or purposive conduct on behalf of the police was in sending Cpl. Applejohn, an officer familiar with both the investigation and the wiretap, to carry out the arrest of Mr. Lepage. Of the latter conduct, I think sending an officer familiar with both the investigation and the wiretap is prudent police work rather than a device or a trick used to dupe a detained person into providing incriminating evidence. [83] If I am incorrect in my conclusion that Rendon does not stand for the proposition that it is never permissible for the police to obtain voice identification evidence during the course of administering an accused his or her Charter rights, I prefer to follow the reasoning of the British Columbia Court of Appeal in Rose. The court held that there must be eliciting conduct as described in Herbert and Broyles before evidence, (such as the voice identification evidence in this case), will have been obtained in breach of the Charter. The Decision of the British Columbia Court of Appeal in Rose [84] At issue in Rose was the question of what conduct by the police amounts to elicitation of evidence which breaches an accused's Charter rights. [85] In Rose, the accused, Mr. Mishra, was charged with possession of both heroin and cocaine for the purpose of trafficking. The police had conducted a two year surveillance project which included the accused. As part of the "takedown" following that surveillance, the police executed a search warrant at the accused's place of employment. During the search, the accused arrived and the police arrested and advised him of his rights, including those under ss 7 and 10(b) of the Charter. The accused immediately asserted his right to retain counsel. However, the accused remained at his business premises for some time before being transported to the police station where he could exercise his right to counsel. An hour and 18 minutes elapsed between his arrest and his opportunity to exercise his right to counsel. However, it was not disputed that there was no place at the business premises where Mishra could have made a telephone call in private. [86] While detained at his business premises, but before the accused left for the police station, a police officer who had worked in an undercover capacity overheard the accused engaging in small talk with a uniformed police officer. The officer recognized the voice of the accused as someone who had threatened him during his undercover work. The officer then, within earshot of the accused, referred to that threat. The accused, on hearing the words, said, "Oh, so my phones have been tapped." The officer agreed at trial that he had deliberately made his remark to see what, if any, reaction Mishra would have. [87] At trial, Crown succeeded in having Mishra's statement was admitted into evidence. He was convicted and appealed on the basis that the trial judge erred in failing to find that his statement was actively "elicited" by the police, and in failing to appreciate and to give effect to the interconnection between ss 7 and 10(b) of the Charter in analyzing this issue. [88] In dismissing the appeal, the Court of Appeal held that the trial judge was correct in finding that the accused's statement was not actively "elicited" by the police so as to invoke the Charter protections. In the court's view, the critical difference between the decisions in R. v. Corak (1994), 29 C.R. (4th) 388 (B.C.C.A.) and McKenzie was the manner in which the courts in those cases characterized the police conduct which was said to give rise to a Charter breach. [89] In Corak, the British Columbia Court of Appeal held that the conduct of the police in leaving a baseball cap found near the scene of the offence in a prominent position at the police station where the accused would see it was "passive" in nature and did not amount to active elicitation of the kind envisioned in Hebert. [90] In McKenzie, the Ontario Court of Appeal held that the conduct of the police in placing an undercover police officer who was very familiar to the accused in the accused's cell after he had asserted his right to retain counsel was the "functional equivalent of an interrogation". Moreover, the Court noted that while Corak focused on s. 7 of the Charter and McKenzie on s. 10(b), either section may be breached if the police actively elicit a statement from an accused after the assertion of the right to counsel, but before the opportunity to exercise it. [91] In Rose, the court found the conduct of the police in McKenzie was significantly different from and more egregious than that of the officer in Rose. Specifically, while the conduct of the officer in Rose was not entirely passive, as in Corak, it was difficult to characterize it as being the functional equivalent of an interrogation. Nor was there any suggestion that the uniformed police officer (the first officer) intended to set up the accused by engaging him in idle small talk. On the contrary, it was apparent from the transcript that the uniformed police officer had no idea of the significance of what had transpired between the accused and the second officer until later. It was true that the second officer was hoping the accused would say something exculpatory, but the real question was whether the conduct of that officer breached the accused's rights. [92] Furthermore, the court in Rose held that the administration of justice is not served if the court creates fine distinctions between conduct which does and does not amount to elicitation giving rise to a breach of an accused's Charter rights; the guidelines with respect to what constitutes eliciting behaviour have been set out by the Supreme Court of Canada in Hebert and Broyles. The court said it is up to trial judges to apply those general guidelines to the facts before them in determining whether the conduct at issue amounts to elicitation within the contemplation of those cases. In Rose, the court was not persuaded that the conduct of the police constituted elicitation so as to breach the accused's rights under either s. 7 or s. 10(b) of the Charter. Analysis [93] In considering whether the conduct of the police amounts to elicitation, the observations of Iacobucci J. for the court in Broyles are significant. He said at para. 27: Even if the evidence in question was acquired by an agent of the state, it will only have been acquired in violation of s. 7 if the manner in which it was acquired infringed the suspect's right to choose to remain silent. In general, there will be no violation of the suspect's right to silence if the suspect volunteers the information, knowing he or she is talking to an agent of the state. In the words of McLachlin J. in Hebert, supra, at p. 184: If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right of silence. In this case, the police were not posing as undercover officers in any of the three situations before me, and each of the three accused knew the Corporal in question was a police officer, yet willingly chose to speak to him. [94] Regarding Mr. Lepage, I find no improper elicitation of evidence by Cpl. Applejohn. There was no deceit, subterfuge, ruse or unfair pressure involved as there was in Hebert, Broyles, or McKenzie. There was nothing that could be characterized as active elicitation or the functional equivalent of an interrogation. Mr. Lepage was not manipulated or exploited by the police. This was a routine arrest and provision of Charter rights. If anything was "exploited", or if there was any "activity" by the police, it was merely the use of Cpl. Applejohn and his prior knowledge of the voices on the intercepted calls that the police used to obtain evidence of voice identification. This surely cannot be characterized as a "corruption" of the arrest and Charter process. Moreover, I do not think the defence would have complained had the arrests been made by officers unfamiliar with the voices on the intercepted calls. [95] Also instructive in these circumstances is R. v. Pelland, [1997] O.J. No. 1539 (C.A.). In that case, the appellant submitted that the surreptitious recording of his voice by the police for voice identification purposes violated his rights under ss. 7, 8 and 10 of the Charter and that the trial judge should have excluded his voice sample from evidence. The Ontario Court of Appeal observed that it had held in R. v. Parsons (1993), 15 O.R. (3d) 1; 84 C.C.C. (3d) 226 (C.A.) 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. The court in Pelland saw no meaningful distinction between that case and the one before it. [96] Pelland is different from the circumstances before me because the accused there was not detained, so no obligation arose to inform him of his s. 10 Charter rights before obtaining of the voice sample. However, the observation about Parsons is certainly worth noting. [97] I also observe that Cpl. Applejohn had no intention of obtaining an incriminating statement from Mr. Lepage when he read him his Charter rights. He merely wanted to establish that the voice he heard at the arrest was the voice he had heard on the relevant intercepted calls. The particular words uttered by the accused or the content of what he said was not incriminating and has no evidentiary value (except that he asserted his right to counsel). Corporal Applejohn's interest was in the sound of Lepage's voice, a physical characteristic that he was able to passively observe without having contrived any artificial situation, deceit or subterfuge. 2. David James Oliynyk [98] On July 10, 2001, at 1:42 p.m., Cpl. Sellinger, went with two members from the Richmond R.C.M.P. detachment to the South Terminal of the Vancouver International Airport to arrest Mr. Oliynyk and to listen to his voice for voice identification purposes. Before the arrest, Cpl. Sellinger had listened to intercepted telephone calls in which a person had identified himself as Mr. Oliynyk. [99] At the terminal, Cpl. Sellinger introduced himself to Mr. Oliynyk, took him away from the plane from which he had just alighted following a fishing trip, led him towards the police vehicle and advised that he had a warrant for his arrest. Cpl. Sellinger asked Mr. Oliynyk to produce his driver's licence or some identification. Mr. Oliynyk produced a valid British Columbia driver's licence. [100] At 1:50 p.m., Cpl. Sellinger told Mr. Oliynyk he was under arrest for conspiracy to commit indictable offences. He read him his rights under s. 10(b) of the Charter. Mr. Oliynyk replied that he understood. He immediately asked to contact his counsel, Mr. John Conroy. Cpl. Sellinger then told Mr. Oliynyk he would be transported to the Chilliwack detachment of the R.C.M.P., and would have the opportunity to contact counsel upon his arrival. [101] At 1:51 p.m., Cpl. Sellinger advised Mr. Oliynyk of his right to remain silent. Mr. Oliynyk again said he understood. He asked again to speak to Mr. Conroy. Cpl. Sellinger did not give Mr. Oliynyk an opportunity at the airport terminal to contact counsel. Corporal Sellinger conceded under cross-examination that probably there was a place at the airport suitable for a private call by Mr. Oliynyk. He also agreed it was likely Mr. Oliynyk could have used his own cellular telephone to make a private call from the airport. The Crown, however, submitted that Mr. Oliynyk's cellular phone was seized as evidence and that it would been inappropriate for the police to have permitted Mr. Oliynyk to use it. It would have given him an opportunity to erase the call history or record of phone numbers on that cell phone. [102] Cpl. Sellinger did not tell Mr. Oliynyk that he was also there to obtain evidence of voice identification, or that Mr. Oliynyk would be "participating in a police evidence gathering exercise" by speaking to them or by asking them questions about the case against him. [103] Approximately thirty minutes after the initial arrest, the police handcuffed Mr. Oliynyk and placed him in the police car to take him to the Chilliwack R.C.M.P. detachment. As they were leaving the airport, Mr. Oliynyk asked if he was being arrested along with other club members for conspiracy. He also asked if it was the "Frenchman" who "ratted on him," or something to that effect. There was some "chit-chat" after that, but not much was said until they reached Chilliwack. [104] They arrived at Chilliwack at approximately 3:15 p.m. Mr. Oliynyk was booked in by Cst. Guineau. Corporal Sellinger was present for the conversation between Cst. Guineau and Mr. Oliynyk during the booking process which consisted of taking Mr. Oliynyk's fingerprints, photographing him and asking him questions while filling out the booking sheet. This was all completed at 3:58 p.m. The police then gave Mr. Oliynyk the opportunity to call his lawyer, Mr. Conroy. Two hours had elapsed since Mr. Oliynyk asserted his right to contact counsel. [105] Cpl. Sellinger was certain that he recognized Mr. Oliynyk's voice by the time they left the airport and after Mr. Oliynyk asked him whether he was being arrested along with other club members and whether the "Frenchman" had ratted on him. [106] Again, Cpl. Sellinger did not handle the arrest of Mr. Oliynyk in any way differently than the arrest of any other person. [107] Mr. Conroy, on behalf of Mr. Oliynyk, adopts the arguments on the cases above that were advanced by Mr. Benning for Mr. Lepage. [108] Mr. Conroy also makes the following submissions regarding how Mr. Oliynyk's Charter rights were breached in these circumstances. First, Mr. Conroy argues it was for Mr. Oliynyk to decide whether using his own cellular telephone, or calling from a room in the Vancouver South Terminal provided enough privacy. [109] Secondly, Mr. Conroy relies upon R. v. Manninen, [1987] 1 S.C.R. 1233 in support of his submission that transporting Mr. Oliynyk to the R.C.M.P. detachment in Chilliwack, and thus delaying for about two hours his right to contact counsel, denied him a reasonable opportunity to contact counsel. [110] Thirdly, Mr. Conroy relies on R. v. Ross, [1989] 1 S.C.R. 3, to argue that the failure to immediately allow Mr. Oliynyk to call his counsel amounted to compelling him to participate in the production of evidence, or to participate in a process to be used against him and that this constituted an impermissible elicitation of evidence. On these grounds, Mr. Conroy says the evidence of voice identification was obtained in breach of Mr. Oliynyk's s. 10(b) Charter right and must be excluded from evidence under s. 24(2). [111] Of note, Mr. Conroy appeared to resile from his initial submission that Mr. Oliynyk would have had a reasonable opportunity to contact counsel had the police taken him to either the Richmond detachment of the R.C.M.P. or to the main terminal of the Vancouver International Airport. Both places are about a ten minute drive from the South Terminal and much closer than Chilliwack. Mr. Conroy then submitted that the police should have found a room at the South Terminal or allowed Mr. Oliynyk to use his own cellular phone to call his lawyer. [112] In Manninen, the Supreme Court of Canada held that the duty to facilitate contact with counsel includes the duty to offer the detainee the use of the telephone. The court acknowledged there may be circumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate a detainee's communication with counsel, but there was no urgency in that case. [113] 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. [114] This case is distinguishable from Rose because, unlike this case, it was not disputed there that the one hour and 18 minutes between the assertion by Mishra of his right to counsel and the opportunity to exercise it was reasonable in the circumstances. [115] However, I find the evidence of voice identification with respect to Mr. Oliynyk was not obtained "in a manner" that infringed or denied his s. 10(b) Charter right within the meaning of s. 24(2) because it was just on leaving the South Terminal that Mr. Oliynyk chose to ask the questions that permitted Cpl. Sellinger to identify his voice. This occurred certainly within a permissible interval between the assertion of his right and what would have been a reasonable opportunity to exercise it. [116] In addition, as with the other two accused, the police had not engaged in any improper "elicitation" of the evidence at the point when Cpl. Sellinger identified Mr. Oliynyk's voice as the one he had heard on the intercepted calls. There was no activity that could be considered an improper elicitation within the meaning of Broyles or McKenzie. There was no "functional equivalent to an interrogation" as Cpl. Sellinger was only a passive recipient of the sound of Mr. Oliynyk's voice during a period I previously found would have been part of a reasonable interval between the assertion of the right to counsel and the exercise of it. [117] Moreover, while it is true that Cpl. Sellinger did not tell Mr. Oliynyk that he was there not only to arrest and "Charter" him, but also to determine whether he recognized his voice, Mr. Oliynyk knew Cpl. Sellinger was a police officer. He willingly chose to ask the questions and release the sound of his voice to the officer. There had not yet been, on leaving the South Terminal, a denial of Mr. Oliynyk's ss. 10 or 7 Charter rights. [118] Further, I cannot find that the police compelled Mr. Oliynyk to participate in the production of evidence or to participate in a process to be used against him. Ross involved activity by the police, that is, active conduct, and not the passive conduct here; the accused in Ross was responding to a direction (my emphasis) by the police to participate in a process, the construction of a police line-up, in which the law did not require him to participate. 3. Lloyd Allan Ferris [119] On August 8, 2001, at approximately 8:21 a.m., Cpl. Sellinger arrested Mr. Ferris when he surrendered himself on an outstanding warrant at the Chilliwack R.C.M.P. detachment. Corporal Sellinger was there by pre-arrangement as the police were notified that Mr. Ferris would turn himself in that day. [120] Corporal Sellinger asked for identification and Mr. Ferris produced his driver's licence. Corporal Sellinger testified there would have been some conversation then. He was satisfied with the identification and brought Mr. Ferris back to the book-in room where Cst. Guineau assisted Cpl. Sellinger in the routine fingerprinting, photographing and booking in procedures. Corporal Sellinger had general conversation with Mr. Ferris about his trip to the United States, his usual occupation, the fact that Mr. Ferris had a form of multiple sclerosis, and some family details. [121] Although Cpl. Sellinger had no note of having advised Mr. Ferris of his s. 10(b) Charter rights and having cautioned him, the book-in sheet disclosed this procedure had occurred. Corporal Sellinger testified that he was the officer who chartered and warned Mr. Ferris. He had no recollection of Mr. Ferris' response on being asked whether he wanted to speak to counsel. However, Mr. Ferris was given the opportunity to do so after Cpl. Sellinger booked him in, so I infer that Mr. Ferris asserted the right. Corporal Sellinger engaged Mr. Ferris in general conversation before he was given an opportunity to exercise his s. 10(b) Charter right to contact counsel. [122] After releasing Mr. Ferris, Cpl. Sellinger returned to his office where he asked another officer for the tapes of a number of intercepted telephone calls so that he could conduct a voice identification of Mr. Ferris. He was provided with intercepted calls on which he recognized the voice of Mr. Ferris. [123] Corporal Sellinger had further dealings with Mr. Ferris on March 7, 2002, when he and Cst. McDougall went to Mr. Ferris' home in Abbotsford to ask him whether he would provide information to the police. Wiretap information had led them to believe it might be worthwhile. However, Mr. Ferris did not wish to provide a statement. He told the officers that he did not have a lawyer. They suggested he contact a lawyer before deciding whether to give them a statement and left. Mr. Ferris was neither detained nor arrested during this brief interaction. [124] Mr. Silverman, on behalf of Mr. Ferris, argues that Cpl. Sellinger breached Mr. Ferris' ss 7 and 10(b) Charter rights by engaging him in general conversation before providing his s 10(b) Charter rights and caution, and then using his memory of the sound of Mr. Ferris' voice to conduct a comparison with the voice on intercepted telephone calls. Mr. Silverman says this breached Mr. Ferris' Charter rights, particularly since the police arranged to have Cpl. Sellinger present when Mr. Ferris turned himself in. [125] I find again there was no improper elicitation of evidence. The only activity by the police was the arrangement to have Cpl. Sellinger present to book Mr. Ferris in when he surrendered himself after giving the police advance notice of his intention to do so. Mr. Ferris created the situation, not the police. Corporal Sellinger did listen to intercepted calls after dealing with Mr. Ferris, but the critical activity was Ferris' own voluntary attendance at the police detachment. He chose to engage in conversation with a police officer about his health and family and thus allowed Cpl. Sellinger to hear the sound of his voice. [126] Mr. Silverman says the police attendance on March 7, 2002 amounted to a very active elicitation of voice identification evidence because obviously, Mr. Ferris would respond to their question by speaking. However, this was not an improper elicitation because Mr. Ferris was neither detained nor arrested then. The police attended for the sincere purpose, based on what they had heard on the intercepted telephone calls, of asking Mr. Ferris if he would provide evidence. There was no ulterior purpose. Corporal Sellinger advised Mr. Ferris to contact counsel first. Mr. Ferris said he had not yet done so, and declined to provide information. [127] If it was wrong for Corporal Sellinger to have a general conversation with Mr. Ferris while booking him on August 8, 2001, but before providing his s. 10 Charter rights and caution, Cpl. Sellinger was able, in any event, to recognize Mr. Ferris' voice on March 7, 2002 when he attended for the sole purpose of asking Mr. Ferris a legitimate question. Conclusion [128] In conclusion, none of the accuseds' ss 7 or 10(b) Charter rights were violated when the police obtained voice identification evidence in this case. The application to exclude the evidence is dismissed. "A.W. MacKenzie, J." The Honourable Madam Justice A.W. MacKenzie November 17, 2005 - Ban on Publication or broadcast by the media including newspapers, radio and internet, of any evidence heard, submissions made or rulings given in the absence of the jury until the jury has rendered its verdict and the trial is over has been lifted on November 17, 2005.