IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On November 2, 2016, M.B. was questioned by the police and he provided a statement.  The Crown seeks a ruling on the admissibility of the statement.  As such, a voir dire commenced and the Crown called several witnesses.  M.B. did not call any evidence on the voir dire.  

[2]           The Crown argues the evidence of the voir dire proves beyond a reasonable doubt that M.B’s statement was voluntary and, therefore, admissible.  Counsel for M.B. argues the evidence raises a doubt regarding the voluntariness of the statement and, therefore; inadmissible.

[3]           For the reasons that follow, I am satisfied beyond a reasonable doubt that M.B.’s statement was voluntary.

[4]           In early November of 2016, the police received a complaint alleging M.B. had committed numerous offences against members of his family.  An investigation was conducted, charges were approved and a warrant was issued for M.B.’s arrest.

[5]           On November 2, 2016, Detective/Constables Adams, Htan, and Luebkemann attended at the Vancouver International Airport (“YVR”) with the objective of arresting M.B., transporting him to the police station and interviewing him.  The officers were in plain clothes and each carried a concealed firearm. 

[6]           On arrival at YVR, the officers went to International Arrivals where they were granted access to the secure passenger area.  The officers then waited until M.B. had completed his re-entry into Canada.  When M.B. finished his re-entry, personnel from the Canada Boarder Services Agency escorted him to the waiting officers. 

[7]           Once M.B. was in custody, the officers walked M.B. to a private room where Detective/Constable Luebkemann formally arrested him.  In doing so, she provided M.B. with his s. 10 (a) and s. (b) Charter of Rights, and the official warning.  During this interaction, M.B. stated that he did not understand why he was being arrested.  Detective/Constable Luebkemann responded by explaining the charges and s. 10 (a) and s. (b) in laymen terms.  M.B. indicated he understood and that he wanted to call a lawyer.

[8]           On learning that M.B. wanted to call a lawyer, Detective/Constable Htan approached Officer Hooper, a Canada Boarder Services Agency officer, and asked for a private phone room.  Officer Hooper then guided M.B. and Detective/Constable Htan to a counsel room.  According to Officer Hooper, the purpose of the room was to provide a private place where detained persons could phone counsel. 

[9]           Once at the counsel room, Officer Hooper called the Vancouver Legal Aid and she left a message requesting a lawyer call back.  Officer Hooper waited for three to five minutes and when she did not receive a call back she phoned the Victoria Legal Aid office.  She provided her name to the person that answered the phone and she was informed that the person on the line was a lawyer.  Officer Hooper then gave the phone to M.B. and she exited the room.  The door was closed and Officer Hooper and Detective/Constable Htan waited outside while M.B. was on the phone. 

[10]        While outside, Officer Hooper was able to look in through a small window and see M.B.  At one point, she looked in and saw that M.B. had the phone to his ear and it appeared that he was talking to someone on the phone.  At no time could she hear what M.B. was saying.

[11]        M.B. was on the phone for about two minutes, he then exited the room and Detective/Constable Htan took custody of him.  The only conversation that Officer Hooper had with M.B. was to tell him to wait while she placed the Legal Aid call.   Officer Hooper estimated that her involvement in the matter was approximately 10 minutes.  She confirmed she did not threaten M.B., nor did she make any promises or offer any inducements.

[12]        Once M.B. was out of the counsel room, Detective/Constable Htan escorted him to the other officers.  Detective/Constable Htan then searched M.B.  Thereafter, the group made their way to a parked police unit and M.B.’s luggage was loaded into the trunk.  The parties got into the vehicle with M.B. sitting in the rear seat. 

[13]        The drive to the station took approximately 45 minutes and according to Detective/Constable Adams, M.B. seemed alert and awake throughout.  During the trip there was some general conversation.  In this regard, the topics covered such things as; the weather, M.B.’s family in Iran, the political situation in Iran, and the health of M.B.’s father.  According to Detective/Contestable Adams, the conversation was polite and cordial.  From Detective/Constable Adams’ perspective, English was M.B.’s second language.  Despite this, she did not feel that there was a language barrier or that M.B. had difficulty understanding her. 

[14]        While speaking with M.B., Detective/Constable Adams learned that he had eaten on the plane approximately two hours earlier and that he was not taking any medication.  At one point M.B. stated that his mouth was dry and that he wanted water.  He was informed by Detective/Constable Adams that he would get some water at the police station.  M.B. also indicated that he wanted to talk to his wife, and he was told that he could only speak with counsel and that contact with his wife would have to wait until the transportation was complete.

[15]        The arrest and transport of M.B. was audio recorded.  All of the officers confirmed they did not threaten M.B., make promises or offer inducements.  All of the officers agreed that M.B. had an accent, that English appeared to be his second language, and that he appeared to understand everything that was being said to him.  Further, the officers confirmed that M.B. seemed alert and awake as they spoke to him. 

[16]        The officers took M.B. to the police station at 3585 Gravely Street in Vancouver.  Once there, Detective/Constables Adams and Htan walked M.B. from the police car to the lobby where they briefly waited for an interview room to be prepared.  When the interview room was ready they took M.B. to the 5^th floor and turned him over to Detective/Constable Marsden.

[17]        At 4:15 p.m., M.B. was brought into the interview room where he met with Detective/Constable Marsden.  All of the activities in the interview room were audio and video recorded.  The audio and video recordings of the interview were played in court and the court participants were given a 97 page transcript of the interview. 

[18]        The video and audio recordings were of good quality.  The angle of the video camera captured the majority of M.B.’s body and facial features; accordingly, the Court was in a good position to see his movements and physical responses.  The sound was somewhat dull, however, the Court could detect, tone, intonation, volume and words spoken.  The interview concluded at 6:48 p.m., thus, making it approximately two and a half hours in length. 

[19]        The room where the interview occurred appeared to be somewhat small, but not so small that two people would feel uncomfortable.  During the interview, M.B. sat in a fixed arm chair that had a wooden back and a cushioned seat.  M.B. was positioned so that he was in a corner.  In front of him was a round table and to his right was the exit door.  Detective/Constable Marsden typically sat across from M.B. except on those occasions where he moved his chair towards M.B.  At no time did Detective/Constable Marsden’s movements appear to have any impact on M.B. 

[20]        As for M.B.’s manner of speech and ability to understand and communicate, it was evident that he had a strong accent.  Despite this, the words he spoke were easily understood.  It was noted that his grammar was weak and some examples include; confusion on the use of, past, present, or future tense, subject-verb agreement, and syntax issues.  I did note the odd occasion where Detective/Constable Marsden appeared to have difficulty understanding the meaning of something stated by M.B. in which case Detective/Constable Marsden sought and received clarification. 

[21]        With respect to M.B.’s ability to understand what was being told to him, I noted he was responsive to the questions posed and on those occasions where he did not understand he asked for clarification.  There were a few occasions where Detective/Constable Marsden posed a question and M.B.’s response showed that he did not understand the question in which case Detective/Constable Marsden recognized this and reframed the question.  

[22]        Throughout the interview, M.B. appeared to be physically comfortable.  He appeared comfortable in his chair and he appeared engaged with Detective/Constable Marsden.  On one occasion, M.B. was offered food and water; he declined the food but accepted the water.  On a few occasions, M.B. yawned and near the end of the interview he expressed that he was tired and that he wanted to lay down (transcript, pg. 91, l. 20). 

[23]        A review of the video shows that M.B. appeared to become increasingly tired as the interview progressed.  Specifically, near the beginning of the interview, M.B. expressed that he was tired and as time passed the manifestations of him being tired became obvious.  Notably, M.B. yawned more frequently, he repeated that he was tired and at one stage he rested his head on his arms.  

[24]        The overall tone of the interview was polite and cordial.  Neither participant was aggressive, they did not raise their voice, or become emotional.  The video contains no evidence of a threat or inducement.  The only sign of possible discomfort was that M.B. was tired. 

[25]        Detective/Constable Marsden was cross-examined about his involvement in the interview.  During the cross-examination, Detective/Constable Marsden confirmed that M.B. appeared a little fatigued but also observed that M.B. was alert, engaged and willing to talk.  When pressed, about not stopping the interview so that M.B. could nap, Detective/Constable Marsden testified that M.B. was capable [with participating in the interview]. 

[26]        Detective/Constable Marsden was pressed on M.B.’s level of fatigue, Detective/Constable Marsden responded by commenting that he kept assessing M.B. and he observed M.B. to be thoughtful, articulate, switched on and not in distress. 

[27]        Counsel asked Detective/Constable Marsden if he offered water and food as a means to induce M.B. to speak, and Detective/Constable Marsden responded that the offer of food and water was a means of monitoring M.B. and ensuring his comfort. 

[28]        Detective/Constable Marsden was also cross-examined about why he did not obtain an interpreter for M.B., Detective/Constable Marsden responded that he was of the opinion that the two understood each other and when an issue arose M.B. sought an explanation to which Detective/Constable Marsden simply re-phrased the question.  

[29]        R. v. Oickle, 2000 SCC 38, is the leading case on the test for determining the voluntariness of a statement made to a person in authority.  

[30]        Before an accused’s statement, given to a person in authority, can be admitted in evidence the Crown must prove beyond a reasonable doubt that the statement was voluntary: Oickle, para. 30.  Accordingly, a statement will not be admissible if there is a reasonable doubt about the voluntariness of the statement: Oickle, para. 68.  

[31]        Threats, promises (inducements), oppression, lack of an operating mind, or police trickery are circumstances that will impact the voluntariness of a statement.  When considering the voluntariness of a statement the court must consider all of the listed factors, within the context of the interview and bearing in mind the uniqueness of the individual accused.  

[32]        The Crown argues that a contextual examination of the evidence proves beyond a reasonable doubt that M.B.’s statement to Detective/Constable Marsden was voluntary.  In support, the Crown points to the following; there is no evidence of any threats, promises or inducements, there is no evidence of police trickery, there is no evidence of oppression, and all the evidence supports that M.B. had an operating mind.  The Crown acknowledges that M.B. may have been somewhat fatigued when he was interviewed, however, they submit that being somewhat fatigued does not support a reasonable belief that M.B.’s will to speak was overborne or that he lacked an operating mind. 

[33]        Counsel for M.B. argues the Crown failed to prove beyond a reasonable doubt that the statement was voluntary.  Counsel points to M.B.’s language difficulty, the offer of water and M.B.’s level of fatigue as evidence that raises a reasonable doubt about the voluntariness of M.B.’s statement.  Counsel put emphasis on M.B.’s level of fatigue by pointing out that the interview occurred just as M.B. had arrived from a long trip. 

[34]        There is no evidence from which it can be concluded that M.B. was threatened or that the officers held out promises or inducements.  Specifically, all of the officers denied making any threats, promises or inducements.  Moreover, there is nothing in the recording of M.B.’s interview that would indicate a threat, promise or inducement.  Lastly, I observe that M.B.’s interactions with the police were recorded and there has been no evidence led from these interactions to support a suggestion of impropriety. 

[35]        As for M.B.’s language skills, the offer of water, and M.B.’s fatigue level, I am satisfied that M.B. was sufficiently conversant in the English language to understand what was being said, including that he did not have to speak with the police.  I also recognize on the rare occasion when communication became challenging that clarification was sought. 

[36]        With respect to Detective/Constable Marsden offering M.B. some water, I find that the gesture could not reasonably be interpreted as an offer or inducement, nor, could it used as an indicator that the environment was so oppressive that M.B. had become parched.  Rather, it was the officer simply taking steps to ensure that M.B. remained comfortable.  

[37]        On the issue of fatigue, it was noted during the interview that M.B. occasionally mentioned that he was tired and there were also times where he yawned.  It was also noted that, M.B.’s yawning and his actions indicative of being tired (stretching out in his chair, stretching his arms and putting his head on the table) appeared to increase near the end of the interview.  

[38]        With respect to counsel’s assertion that M.B. was significantly tired because he had been travelling, there is no evidence about M.B.’s travels.  At best, there was hearsay evidence indicating that M.B. had travelled from Iran.  Accepting that M.B. did travel from Iran, there is a lacuna in the evidence about his trip.  Simply, it is unknown if M.B.’s travel was direct, it is unknown if M.B. travelled first class, it is unknown when M.B. started his journey, there is no information about the impact of the trip on M.B., and finally, it is unknown if M.B. slept during his trip. 

[39]        Given the above, the Court is left to look at the video and all of the evidence to determine if there is some evidence that M.B.’s fatigue level and the entire circumstances contributed to the creation of an atmosphere of oppression or that he was so tired that he could not make informed choices.  When the entirety of the video is examined and keeping in mind the observations regarding M.B. being tired, I see nothing in the video or the circumstances of the statement that could reasonably support the conclusion that the environment became oppressive or that M.B. was not of an operating mind. 

[40]        In support of the above, I observe M.B.’s ability to make a decision regarding speaking with the police was displayed throughout the interview; however, I find the exchange at p. 86, lines 9 - 12, of the transcript to be poignant: 

[41]        As for M.B.’s state of mind, his responses to the questions as well as the entirety of his contact with the police, demonstrates that there were no issues with his ability to make rational, sensible choices and decisions. 

[42]        As such, and for the reasons set out above, I find that the Crown has proven beyond a reasonable doubt that M.B.’s statement was voluntary.