R. v. McLeod, 2014 BCPC 182 (CanLII)
Citation: R. v. McLeod Date: 20140814
Registry: Duncan
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
CHAD ERNEST McLEOD
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
Counsel for the Crown: C.J. Gibson
Counsel for the Defendant: M.N. Stern
Place of Hearing: Duncan, B.C.
Date of Hearing: August 11, 2014
Date of Judgment: August 14, 2014
[1] Mr. McLeod is charged with possession of marijuana for the purpose of trafficking. The present issue is the admissibility of a statement which Mr. McLeod is alleged to have made to one of the arresting officers.
[2] Constable Curwin of the RCMP gave the following evidence:
a. On January 5, 2014, she and two other officers, Constables Findlay and Rowbotham, were assigned to operate what used to be called “radar trap” on Highway #1 south of Ladysmith, British Columbia. She explained that lasers are now used in lieu of radar. The posted speed limit was 90 km/hr. At 14:55 hours, she observed a silver BMW approaching at 162 km/hr, and stepped into the roadway to direct the driver to pull over. The driver, Mr. McLeod, obeyed that instruction.
b. When Constable Curwin asked Mr. McLeod for his license and registration, she detected a strong odour of vegetative marijuana. He told her that he had a “joint”, and that he possessed a medical marijuana license, but did not have the license with him. She told him that he had a right to legal advice, and that he was not obliged to speak to her. In so doing, she relied on her memory of the standard Charter warning printed on a card issued to all RCMP officers, but did not read from the card.
c. Constable Findlay then searched Mr. McLeod and placed him in the rear seat of a police car.
d. Constables Curwin and Rowbotham then searched Mr. McLeod’s vehicle. In the console between the front seats, Constable Curwin found a single marijuana cigarette weighing 0.7 grams. In the rear seat, she found a backpack containing, among other items, six small plastic bags containing, in total, 31.5 grams of marijuana. The strong smell of vegetative marijuana persisted after those items were removed from the vehicle. For that reason, Constables Curwin and Rowbotham opened and searched the trunk of the vehicle, where they found 11 packages of marijuana, each containing between 478 and 487 grams of marijuana, and two more packages of marijuana, containing 129.2 and 135.2 grams, respectively.
e. Constable Curwin then spoke with Mr. McLeod, who was seated in the back seat of the police car. She read him the standard Charter warning from the card, and asked whether he understood it. He said that he did. She asked if he wished to speak with a lawyer, and he said that he did. She provided him with a cell phone and the telephone number for legal aid duty counsel. Mr. McLeod spoke in private with duty counsel. After the call, Constable Curwin asked him if he was satisfied with the advice which he had been given, and he said that he was.
f. Constable Curwin then spoke with Mr. McLeod. The conversation began sometime after 14:55, and ended at 15:20. She took no notes of the conversation, and does not recall all of it. She said that the Charter warning which she read from the card was “most of” the conversation. She gave only the following particulars of the conversation during her evidence:
i. Mr. McLeod told her that he had just returned from Trinidad.
ii. She asked Mr. McLeod what he did for a living, and he said that he would prefer not to answer that question.
iii. Mr. McLeod provided his name and date of birth.
iv. Mr. McLeod told her that he possessed a medical marijuana license which entitled him to possess 3 pounds of marijuana, and that “I guess I’m over by about double”.
v. She did not say to Mr. McLeod that things would go better for him if he cooperated, or worse for him if he did not.
g. Constables Findlay and Rowbotham also spoke to Mr. McLeod. She did not hear all of those conversations.
[3] Constable Curwin was not asked whether anything else was said about marijuana or the investigation during her conversation with Mr. McLeod. During cross-examination, she said that Crown counsel had asked her only about the specific remark mentioned in paragraph 2(e)(iv), and that she had answered only the question she was asked. Neither Mr. Gibson, for the Crown, nor Mr. Stern, for the defence, pursued the question whether anything else had been said about marijuana or the investigation.
[4] Constable Curwin was not asked whether she made any threats or offered any inducements to Mr. McLeod. She was asked only whether she said to Mr. McLeod that things would go better for him if he cooperated, or worse for him if he did not. She replied to that question in the negative.
[5] The Crown tenders the statement mentioned in paragraph 2(f)(iv), presumably in support of the inference that Mr. McLeod was in conscious possession of the marijuana, and knew that his medical marijuana license did not authorize that possession. Mr. Stern objects to the admissibility of the statement on the ground that the Crown has not discharged its onus to prove, beyond a reasonable doubt, that the statement was voluntary. Mr. Stern does not allege any infringement of Mr. McLeod’s Charter rights.
[6] Mr. Stern relies upon a judgment rendered orally by Madam Justice Arnold-Bailey of the British Columbia Supreme Court on June 29, 2005 (R. vs Charles Randolph Robertson), and provided me with a transcript of Her Ladyship’s reasons. Unfortunately, those reasons have not been assigned a neutral citation and are not available on any of the websites commonly used for legal research. Perhaps for that reason, they have not received the attention which they deserve. The reader may procure a copy from the New Westminster Registry of the British Columbia Supreme Court by searching court file #67193-2. Robertson was considered by my colleague, Judge Dyer, in R vs Franklin 2011 BCPC 16; [2011] BCJ #132; 226 CRR (2d) 249.
[7] The issue in this case is the same as that addressed in Robertson and in Franklin, and was defined in the following terms in Franklin @ paragraph 4:
… the onus of proof on this issue rests with Crown counsel. Crown must establish with proof beyond a reasonable doubt that the various statements made by the accused were voluntary. That is to say, they were made by the accused to a person in authority, here a police officer, voluntarily or without fear of prejudice or hope of advantage, or sometimes it is said without being prompted by a threat or an inducement ….
[8] In Robertson, the accused was arrested near the scene of a break-and-enter, and was interviewed by the arresting officer in a police vehicle at the scene. During the course of the interview, he made an inculpatory statement. The interview was not recorded, and the officer made no notes. The accused was later interviewed at the police station, where he made a second comment relied upon by the Crown. When cross-examined on a voir dire, the arresting officer acknowledged that, during the interview in the police vehicle, “… most likely there was a conversation about the grow-op and the break-in, and that the accused was lucky not to be there when individuals broke in …”. Madam Justice Arnold-Bailey excluded the statements from evidence for the following reasons:
… I am unable to conclude that either of these statements are proven voluntary beyond a reasonable doubt. Although I accept that a verbatim record of all that was said is not required here or generally, as a proposition in law, there is an insufficient context in the evidence before me for me to assess whether or not the comments were as a part of a general conversation between the accused and the officer, during which something may have been said to induce the accused to make these comments, as he allegedly did. This is particularly so as the officer admits that they did have general discussion about the break and enter to the premises and the grow-op and the process that the accused would have to go through, given the charges that he faced. General discussion about one’s situation and the charges can very quickly lead to comments that may induce an accused to say something incriminating. Therefore while phrases and gists of conversation may appear to be voluntary, there still has to be, in my respectful view, a sufficient context.
[9] In Franklin, Judge Dyer conducted a detailed and incisive review of the governing authorities (including Robertson), from which I derive the following statements of principle:
a. A verbatim record of the exchanges between police officers and the accused is desirable, but not necessary, when considering the issue defined in paragraph 4.
b. The fact that a police officer’s recollection (or notes) of her exchanges with the accused is imperfect or incomplete does not necessarily preclude a finding that the statement was voluntary. The question is whether the trial judge “… has a real concern …” that the missing information might bear on the question of fear of prejudice or hope of advantage. If so, the trial judge may conclude that the Crown has failed to discharge its onus. However, such a conclusion should not be drawn on the basis of “… mere speculation …”. See Franklin @ paragraphs 45 and 71.
c. The trial judge must also consider a second issue; i.e. whether the Crown has discharged its obligation to put before the court any exculpatory statement which the accused may have made. Expressed differently, it is the duty of the Crown, when tendering a statement by the accused, to put the whole of the statement fairly before the court, including all parts of the statement which might assist the defence. Unless the trial judge is satisfied, beyond a reasonable doubt, that the Crown has done so, no part of the statement should be received in evidence.
[10] Mr. Stern submits that the principle which I have stated in paragraph 9(b) is inconsistent with Robertson, and that I am bound to follow Robertson rather than Franklin. I do not think that Franklin is inconsistent with Robertson. More particularly, I think that the decision in Robertson depends critically on the arresting officer’s admission that he discussed the investigation and potential prosecution with Mr. Robertson, and was unable to recall the details of the discussion. That gave rise to the concern expressed by Madam Justice Arnold-Bailey in the passage quoted in paragraph 8.
[11] I also think that Mr. Stern’s submission fails to accurately reflect the governing principle of stare decisis. That principle was stated by Mr. Justice Wilson in Re Hansard Spruce Mills [1954] BCJ #136; 1954 CanLII 253 (BC SC), [1954] 4 DLR 590, as follows (underlining added):
… I will only go against a judgment of another Judge of this Court if:
(a) Subsequent decisions have affected the validity of the impugned judgment;
(b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;
(c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority
If none of these situations exist I think a trial Judge should follow the decisions of his brother Judges.
Robertson is, indeed, an authority binding upon me. However, it was considered in Franklin. I am as much bound to follow the interpretation placed upon Robertson by Judge Dyer as I am to follow Robertson itself.
[12] Mr. Stern submits that the statement attributed to Mr. McLeod should be excluded from evidence for two reasons:
a. Words were exchanged between Mr. McLeod and each of Constables Findlay and Rowbotham. There is no evidence of what was said, so the Crown has failed to prove that no inducements were offered or threats made.
b. Constable Curwin’s account of her conversation with Mr. McLeod is insufficiently detailed to provide sufficient context, having regard to the comments of Madam Justice Arnold-Bailey, quoted in paragraph 8, above.
For the following reasons, I do not accept Mr. Stern’s submission:
c. There is no reason to think that either Constable Findlay or Constable Rowbotham had any material conversation with Mr. McLeod. That possibility is a mere speculation.
d. It would be manifestly impractical if the Crown were obliged to call, on a voir dire, every police officer who spoke with an accused person while he was in custody. In many cases, an accused person is arrested by one officer, transported to the police station by another, booked in by another on arrival at the police station, and fed by yet others while awaiting interrogation, all before being interviewed by an investigator. All of those officers will exchange words with the prisoner. Very few of those words will be of any significance. Voir dire’s would become unduly burdensome if the Crown were obliged to call each of those officers to deny that he made any threats or promised any inducements. I have no doubt that Crown counsel will call to give evidence any officer whom the accused alleges to have offered any inducement or to have made any threat. That is sufficient to discharge the Crown’s onus. When I raised this question with Mr. Stern during his submissions, he replied that this case differs from my example because Mr. McLeod’s exchanges with Constables Findlay and Rowbotham were proximate in time and space to the conversation between Mr. McLeod and Constable Curwin. That would be a significant point of distinction only if threats or promises made by an arresting officer on (for example) Tuesday would be insufficient to vitiate the voluntariness of a statement made to a police investigator on Thursday. That is clearly not the law.
e. This case differs from Robertson in the following way. In Robertson, the arresting officer conceded that he had discussed with the accused the likely course of the investigation and prosecution, but was unable to recall the details of the discussion. That gave rise to the concern expressed by Madam Justice Arnold-Bailey, quoted in paragraph 8. In this case, it was not suggested to Constable Curwin that she had any similar discussion with Mr. McLeod (except for the one remark which the Crown tenders in evidence). Because Constable Curwin was not asked to exhaust her memory of her conversation with Mr. McLeod, the possibility that she had a discussion with him similar to that between the arresting officer and the accused in Robertson is mere speculation. Mr. Stern was resistant to my suggestion that the rule in Browne vs Dunn has any application to this case. After reflection, I conclude that it does. The gist of Constable Curwin’s evidence was that she made no threats and offered no inducements to Mr. McLeod. Mr. Stern urges me to reject that evidence because she was not asked to recite all of the particulars of the conversation. It seems to me that, if the accused wishes me to infer that there is a “… real concern with the completeness of the record …”, it is incumbent upon him to explore that issue during the officer’s cross examination.
[13] Similarly, I would expect that, if there were an exculpatory aspect of Mr. McLeod’s conversation with Constable Curwin:
a. Mr. McLeod would have so instructed Mr. Stern;
b. Mr. Stern would have explored the question during Constable Curwin’s cross-examination.
[14] I conclude that the statement attributed to Mr. McLeod was voluntary, and is admissible.
August 14, 2014
_________________________
T. Gouge, PCJ