IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is my ruling on the admissibility of the accused’s two statements, including an apology letter, into this trial. Mr. Martin made two video-recorded statements to Corporal Koutougos while he was at the Nootka Sound RCMP detachment. At the end of his second statement, Mr. Martin wrote a letter of apology to his brother, Brandon Martin. The first statement was short, followed by Mr. Martin speaking with counsel in private. The second began shortly after that interruption. For simplicity, I will refer to the two statements, including the apology letter, as Mr. Martin’s statement, singular. My reasons apply equally to all three components of his statement.

[2]           Mr. Marion, on behalf of Mr. Martin, argues that the statement ought to be ruled inadmissible, because it is a “stress-compliant confession” or a “non-coerced persuaded confession” as those terms are defined in R. v. Oikle, 2000 SCC 38 at paragraphs 36 to 40. The Crown’s position is that, although there may be issues with the weight to be given to parts of Mr. Martin’s statement, because of his alcohol consumption and possible memory loss, the statement is admissible.

[3]           Mr. Martin was arrested just after 1:30 a.m. on Saturday, February 21, 2015 in the yard of his residence, along with a female youth. He was charged with assaulting his brother, Brandon. Cpl. Koutougos arrested Mr. Martin, provided his Charter rights and warnings, and facilitated his access to counsel at the detachment prior to interviewing him.

[4]           Two other RCMP members, Cst. Ryan and Cst. Owen, had contact with Mr. Martin prior to his interview with Cpl. Koutougos. Cst. Ryan contacted Legal Aid for Mr. Martin at the detachment. He did not have specific notes, nor any independent recollection of what conversation he had with Mr. Martin about the reason for his arrest. He did not make any promises or threats to him. He said that he conducted a tele-bail hearing for Mr. Martin later that evening, but could not recall if the hearing went by consent. The significance of this fact is that he cannot say whether or not the facts underlying the allegations were read in the presence of Mr. Martin at the bail hearing.

[5]           Cst. Owen was with Cpl. Koutougos at the scene where Mr. Martin was arrested. He had some contact with Mr. Martin the following day when he came back on shift at noon. Mr. Martin had asked to speak to a member, so Cst. Owen went to his cell. He said he re-arrested Mr. Martin for assault causing bodily harm and discussed contacting counsel. Under cross-examination he testified that he wanted to ensure Mr. Martin knew why he was arrested and understood his Charter rights. He agreed that Mr. Martin wanted to know why he was in jail. He did not have specific notes or recollection of his conversation with Mr. Martin. He did not make any promises or threats to him.

[6]           The first interview commenced shortly after noon on Sunday, February 22, 2015, and was interrupted so Mr. Martin could speak with counsel again. The second interview commenced after Mr. Martin spoke with counsel, at just after 12:30 p.m.

[7]           During the interview, Mr. Martin confirmed that Brandon was his brother, and that they lived at the residence where he was arrested. He discussed his relationship with his brother. He told Cpl. Koutougos that on Friday evening he had been drinking alcohol, playing video games, and cards at another residence. He recalled returning to his own house and drinking more liquor there. He recalled Brandon answering the door when he arrived home. He said he did not know how the fight started between himself and his brother. He did not remember being arrested. He repeatedly said he did not remember the fight. But he also agreed that he knew he caused the injuries to Brandon. He said he did not know how he did that. Later in the statement he stated he and Brandon were punching each other. He provided a few other details about the assault. Many of Mr. Martin’s statements regarding the details of the assault are qualified with words like “I’m not sure” and “I guess” and “I don’t know” and “that’s probably how it went”. He said he wanted to apologize, and wrote an apology letter to Brandon. In the latter part of his statement, and in the letter, he apologized for not letting Brandon know that he was coming home. However, Mr. Marion points out that copies of Mr. Martin’s text messages on that evening show that Mr. Martin did tell Brandon that he was on his way home. Mr. Marion points to this as corroborative evidence that Mr. Martin does not remember the details of the evening.

[8]           In summary, the statement contains some admissions of fact that appear to be reliable, and others that may not be. More weight may be accorded to some parts of the statement, and less, or perhaps none, to others.

[9]           The issue for me to determine is whether this statement ought to be ruled inadmissible, or whether I should rule that it is admissible, recognizing that the statement must be assessed by the trier of fact (that is, me), with some caution, given that some of Mr. Martin’s statements may not be reliable.

[10]        Applying the classic tests for voluntariness to this statement does not lead to its exclusion. The statement was not induced in any way by promises or threats. Mr. Martin possessed an operating mind. The police did not make use of any trickery in obtaining the statement. The circumstances of the interview were not oppressive. On the contrary, Cpl. Koutougos repeatedly states that he is trying to get at the truth, and asks Mr. Martin to try to think back and remember what he can about the events of the evening. Cpl. Koutougos is polite and the tenor of the conversation is reasonably relaxed in the circumstances.

[11]        The most that can be said about the police conduct influencing the confession is that they told him about the circumstances of the allegations: that he had been arrested for assaulting his brother, that his brother was injured and in the hospital. Such information may have formed the basis of Mr. Martin’s statements and the apology.

[12]        The police cannot be criticized for advising Mr. Martin of the reason for his arrest. They are obligated to do so pursuant to section 10(a) of the Charter. Nor is it objectionable for the police to describe to an accused their theory of the evidence, or tell them what other witnesses may have said about what happened, during the course of an interview.

[13]        Nevertheless, Mr. Martin’s statement appears, in some respects, to be unreliable. He repeatedly states he has no memory of engaging in a fight with his brother. His statements appear, at times, to be based on information provided to him by the investigators (i.e., that his brother is injured, and Mr. Martin caused those injuries).

[14]        Mr. Marion’s position is that the statement is inadmissible as a “stress-compliant confession” or a “non-coerced persuaded confession” as those terms are defined in Oikle at paragraphs 36 to 40:

[15]        I note that the court places an important qualifier when describing the five types of false confessions, which I have emphasized in paragraph 36: Without suggesting that any confession involving elements discussed below should automatically be excluded…

[16]        In the descriptions of both “stress-compliant confession” and “non-coerced persuaded confession”, there is the inference that the police conduct somehow taints the evidence, causing it to be unreliable. In the former, the court used the example of “exceptionally strong use of the aversive stressors typically present in interrogations", and the need for the interviewee to “escape the punishing experience of interrogation". In the case of the non-coerced persuaded statement, the court refers to “police tactics” or “fabricated evidence” to “convince an innocent suspect of his own guilt”.

[17]        By contrast, in the case before me, there is nothing objectionable about the conduct of Cpl. Koutougos, or either of the other RCMP members who had contact with Mr. Martin prior to him providing his statement. On the contrary, all appear to have conducted themselves with the utmost propriety. Cpl. Koutougos repeats throughout the interview that he is just interested in the truth - what Mr. Martin actually remembers. It may be that Mr. Martin does not remember certain aspects of the evening in question, and he may fill in the gaps of his knowledge with information given to him by the police. However, this is not true of the entire statement.

[18]        At paragraph 65 of Oikle, under the heading of “Police Trickery”, the court made reference to Chief Justice Lamer’s discussion of the interplay of voluntariness and reliability in Rothman, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640:

[19]        Of note, Chief Justice Lamer’s concurring decision in Rothman was also cited with approval in R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, a leading case on the right to silence, even though the majority’s decision in Rothman was overruled in that case. Indeed, his decision in Rothman formed the basis of some of the changes the Supreme Court of Canada made in the law regarding the right to silence and voluntariness in both Hebert and Oikle.

[20]        In Rothman, Chief Justice Lamer goes to great lengths to explain the rationale for the classic confessions rule from Ibrahim v. The King, [1914] A.C. 599, that statements by an accused are not admissible if they are made as a result of fear or prejudice or hope of advantage held out by persons in authority. That classic statement, has, of course, been expanded in Oikle to include other bases for exclusion such as oppression, existence of an operating mind, and police trickery.

[21]        However, the rationale behind the original rule is instructive. Chief Justice Lamer quotes Lord Sumner at page 32 in Rothman:

[22]        What this quote shows is that the rule excluding statements obtained where an accused made it as a result of a threat or promise by a person in authority, is based on policy, not reliability. The final line makes clear, that, absent threats or inducements, statements of questionable reliability were routinely admitted as relevant, and their use became a question of weight for the trier of fact.

[23]        There are many cases which state that, once a confession is ruled admissible, it is to be treated by the trier of fact no differently than any other type of evidence. In other words, it is up to the trier of fact to decide:

[24]        In conclusion, I see no basis on which to rule that the statements made by Mr. Martin are not voluntary and therefore not admissible. Reliability is a concern here. But in the circumstances of this confession, that is an issue of weight, not admissibility.

[25]        The two statements and the apology letter are admissible into evidence in the trial. The Crown may decide to lead further evidence, and defence may call a case. Other evidence may affect the weight I give to the confession at the end of the trial. I may accept parts of the statement as reliable, and reject other parts as not reliable. I will make those determinations after I have heard all of the evidence in the trial.