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R. v. Melnick and Susee-Holmes, 2019 BCPC 34 (CanLII)

Date:
2019-03-01
File number:
105129-6-C
Citation:
R. v. Melnick and Susee-Holmes, 2019 BCPC 34 (CanLII), <https://canlii.ca/t/hz4cr>, retrieved on 2024-03-28

Citation:

R. v. Melnick and Susee-Holmes

 

2019 BCPC 34

Date:

20190301

File No:

105129-6-C

Registry:

Kamloops

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

JONATHAN WAYNE MELNICK and

JOSHUA ALAN SUSEE-HOLMES

 

 

 

 

 

RULING ON VOIR DIRE

VOLUNTARINESS

OF THE

HONOURABLE JUDGE S.D. FRAME

 

 

 

 

Counsel for the Crown:

Mr. Christopher Balison

Counsel for the Accused, Mr. Jonathan Melnick:

Mr. Dustin Gagnon

Counsel for the Accused, Mr. Joshua Susee-Holmes:

Mr. Daniel McNamee

Place of Hearing:

Kamloops, B.C.

Dates of Hearing:

December 11, 2018, January 31, 2019, February 1, 2019

Date of Judgment:

March 1, 2019


[1]            The Crown intends to lead the statement of Joshua Alan Susee-Holmes at the trial. As such, the Crown has the burden of proving the statement was voluntarily made.

[2]           There are other allegations of Charter breaches advanced by both accused which are dealt with separately in my ruling on the Charter voir dire. This includes an allegation of breach of Mr. Susee-Holmes Charter rights under s. 7.

[3]           By agreement of all counsel, the evidence required for all of the Charter issues and the voluntariness voir dire were led in a single voir dire. That, though, is a matter of convenience. Not all of the evidence led on the voir dire will necessarily apply to all of the issues I am to decide.

[4]           This ruling deals only with the voluntariness of the statement made by Mr. Susee-Holmes.

[5]           Constable Eric Thompson was working on December 3, 2017. He works with a drug detection dog Dale and has been doing so since 2012. The dog was with him but was not deployed on the date in question.

[6]           Constable Thompson was working as a roving traffic unit, meaning that he is able to go anywhere to perform traffic enforcement. The main purpose of his duties on the night of December 3, 2017 was just that, traffic enforcement.

[7]           Constable Thompson is also (and was then) an instructor in tracking criminals who use the highways for transportation of drugs.

[8]           Constable Thompson parked his vehicle near a mailbox pull out in the Vinsula-Heffley Creek area. At approximately 10:00 p.m., he observed a vehicle driving slower than normal, at approximately 85 km/hour. This was abnormal because the speed limit is 100 km/hour in this area.

[9]           Constable Thompson could see that it was a dark sport utility vehicle, but could not identify the make of the vehicle. He began to follow the vehicle to determine if he was observing a possible impaired driver. He did not use his lights or sirens for the purposes of following the vehicle.

[10]        As he followed the vehicle, Constable Thompson observed a number of indicia that suggested to him that he might indeed be following an impaired driver. These indicia included the vehicle’s fluctuating speed, constant braking and difficulty maintaining its lane. The vehicle would drift over the fog line and, on occasion, Constable Thompson could hear it cross the rumble strip. Constable Thompson, at one point, began to video record the vehicle while he followed it. Over the recording time, the vehicle can be seen to drive as low as 76 km/hour and as high as 95 km/hour with some weaving within the lane and occasionally crossing the fog line. Eventually, Constable Thompson pulled over the vehicle.

[11]        As part of his pull over, Constable Thompson queried the vehicle which had Alberta plates. Based upon the query results, he determined that the registered owner of the vehicle, Mr. Melnick, had an inactive Alberta licence.

[12]        Constable Thompson approached the vehicle and could see the driver had both of his hands out the window, which he perceived as odd behaviour. Constable Thompson approached the passenger side and knocked on the window. The driver only partially rolled down the window when Constable Thompson knocked. This also struck Constable Thompson as odd.

[13]        Constable Thompson noticed certain items in the vehicle that raised his suspicions including a radar detector, an air freshener, two cell phones in the same cup holder, and the front passenger belt clipped with no one in the seat. He also observed a male in the second row seat, who would turn out to be Mr. Susee-Holmes.

[14]        While having a discussion with Mr. Melnick about the state of his insurance and driver’s licence, Constable Thompson also observed Mr. Susee-Holmes fidgeting with something at his waistband. He observed that Mr. Susee-Holmes had what Constable Thompson believed to be meth sores on his face.

[15]        Based upon all of his observations and the queries Constable Thompson had requested and subsequently reviewed, he believed he had a reasonable suspicion that there were drugs in the vehicle and possibly of firearms. He initially detained each of the occupants of the vehicle separately.

[16]        On detaining Mr. Susee-Holmes, Constable Thompson approached the passenger side and asked Mr. Susee-Holmes to step out. Mr. Susee-Holmes took a bite of his sandwich and put a cigarette in his mouth. As a result of this peculiar behaviour, Constable Thompson decided he should handcuff Mr. Susee-Holmes on detention. He advised Mr. Susee-Holmes he was detaining him for possession of controlled substances and provided him with his police caution and right to counsel. Mr. Susee-Holmes indicated that he understood these components of his detention and asked to speak to a lawyer.

[17]        Constable Thompson conducted a pat-down search for officer safety and located a lump in Mr. Susee-Holmes’ pants pocket which turned out to be a wallet. Apart from the wallet, he also found a Tylenol pill bottle.

[18]        Mr. Susee-Holmes was placed in the back of the police vehicle. Mr. Melnick was brought out again so that he could be properly advised of his rights on detention. During the course of the detention, Mr. Melnick led Constable Thompson to believe he had reasonable and probable grounds to make an arrest of both men for possession of a controlled substance.

[19]        Both men elected to speak to the same lawyer and a lengthy process ensued while Constable Thompson tried in turn to reach each of the lawyers the two men had asked for. Eventually, Constable Thompson ran out of options and advised the two men that they would have to wait for a call back. While waiting, Constable Thompson conducted an investigation of the vehicle. While searching the vehicle, he saw what he described as a walkie-talkie on the driver floor. This caused him concern because in his experience this meant there may be another vehicle nearby. This increased the risk to officer safety. He called for back-up.

[20]        As Constable Thompson continued the search, he located currency bundled with elastic and some firearms. Based on what he had discovered, he returned to the vehicle and arrested both men for property obtained by a crime, provided them with Charter rights again and gave the police warning again. Both men indicated that they understood these rights and confirmed that they still wished to contact a lawyer. Attempts began again to speak to counsel. They opted to try Legal Aid but Constable Thompson was still unable to get through to any lawyers.

[21]        Constable Eaket arrived and the two officers began a search of the vehicle. In the course of that subsequent search, they located a handgun, drug paraphernalia, a couple of shot guns and what they thought was an assault rifle. The two men were again arrested for possession of a prohibited firearm.

[22]        They became uncooperative on this arrest and refused to answer the questions with respect to the Charter and police warning or to say if they wanted to speak with counsel. In any event, Constable Thompson did get through to Legal Aid shortly afterward. He gave them privacy to speak with counsel. That call dropped but the men both indicated they did not want to try Legal Aid again because they did not want to speak to the lawyer they were given, who was not local. The wait for a lawyer to call back continued and the search for the vehicle continued. Two more pistols were found during this latter part of the search. More currency was located.

[23]        A further pat-down search was conducted of both men, this time searching for firearms or related items and drugs or currency.

[24]        Constable Eaket then transported both men to city cells at the Battle Street detachment while Constable Thompson returned to his own detachment at Aberdeen. Once the vehicle was secured at the Aberdeen detachment along with the exhibits, Constable Thompson returned to the Battle Street detachment.

[25]        Constable Eaket had been tasked with ensuring that the two men had an opportunity to speak with counsel.

[26]        Constable Eaket said that he departed the scene at 12:43 a.m. on December 4. He drove to city cells with no stops and no discussion with the two men in his vehicle. At the detachment, he parked the vehicle inside the bay. He took out Mr. Melnick first and booked him to the cellblock. Mr. Susee-Holmes remained in the vehicle until Mr. Melnick was finished. At 1:39, Mr. Susee-Holmes was booked in to the cells. Constable Eaket put him in a room to contact counsel.

[27]        Mr. Susee-Holmes had asked for a specific lawyer who Constable Eaket tried to call. The wrong number had been given to him. When the lawyer could not be reached, Mr. Susee-Holmes requested two other lawyers whose names he had taken from a list of on-call lawyers that the detachment had. Neither lawyer answered their phone and messages were left for them to call. Two more lawyers were selected and also called. The last call was successful and was transferred to the secure phone room to Mr. Susee-Holmes.

[28]        Once Mr. Susee-Holmes was off the telephone, he was placed in cells without further discussion.

[29]        When Constable Thompson arrived back at the Battle Street detachment, he inquired whether the two men had spoken to counsel.

[30]        Constable Thompson then prepared a bail hearing package for a Justice Centre hearing. He contacted Crown who advised him to send the bail package to the Justice Centre for the bail hearing. Justice Centre declined to do the bail hearing because court was in session in Kamloops. Constable Thompson attempted to contact the Judicial Case Manager, whereupon he was informed that they would be unable to get the men in front of a judge. He was referred back to the Justice Centre.

[31]        At this point, Constable Thompson went off shift, returning again that evening. The bail package was sent again to the Justice Centre once he was back on shift. He spent some time trying to arrange counsel to appear on the bail hearing. Once the bail hearing was concluded, Constable Thompson attempted to take a custodial statement.

[32]        The interview was audio and video recorded. It was 10:50 p.m. when Mr. Susee-Holmes was brought in to the interview room. There was no repeat of the Charter rights or police caution given at this time nor was Mr. Susee-Holmes advised on video that he was being video recorded.

[33]        By this time, Mr. Susee-Holmes was showing some signs of being drug sick. He grunted and barely spoke during the interview. He put his head on the table. Constable Thompson informed Mr. Susee-Holmes that he was conducting an investigation about the money that was located and asked if Mr. Susee-Holmes had a receipt for the money.

[34]        Mr. Susee-Holmes asked Constable Thompson, who was fully uninformed, if he was working for the Crown. Constable Thompson rightly advised Mr. Susee-Holmes that he did not work for the Crown but was in an investigative role. Given the circumstances, however, it was a bit overstating matters to say that he was working for both sides. In any event, Mr. Susee-Holmes was too ill to go on. He was having withdrawals and said he was at a “10” with it. He offered a reason for the cash being in the vehicle, saying that it was from the sale of a vehicle. Unable to continue the interview, Constable Thompson returned Mr. Susee-Holmes to his cell.

LAW

[35]        The Crown referred me to the Supreme Court decision of R. v. A.D., 2017 BCSC 2065 (CanLII), 2017 B.C.S.C. 2065. In this decision, Justice Donegan set out the legal principles as follows:

[9]  When an accused person provides a statement to a person in authority, the Crown must prove beyond a reasonable doubt that the statement was made voluntarily for it to be admissible as evidence. This common law rule, known as the confessions rule, is intended to address concerns about the reliability and truthfulness of confessions, as well as promote the integrity of the administration of criminal justice. The confessions rule is intended to strike a balance between the state’s need to investigate and solve crimes and the individual’s right to fair treatment and to silence: R. v. Tan, 2014 BCCA 9 at para. 99.

[14]  … McLachlin J. in Hebert where “[t]he absence of violence, threats and promises by the authorities does not necessarily mean that the resulting statement is voluntary, if the necessary mental element of deciding between alternatives is absent”: p. 166 and Oickle at para. 25.

[21]         The Court began by highlighting the twin goals or objects of the confessions rule - protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes: para. 33. The Court approved an explanation of the tension between these goals provided by Martin J.A. in R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 18 O.R. (2d) 714 (C.A.) at 721 at para. 33:

Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation. . . . On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible…

[24]         … Four factors to examine are whether the statement was made (1) without threats or promises by a person in authority, (2) in an atmosphere free of oppression, (3) by an accused with an operating mind, and (4) without impermissible police trickery that would shock the community: Oickle at paras. 47-67.

[25]         Madam Justice Dickson, as she then was, summarized these factors in R. v. Deboo, 2014 BCSC 1949 at paras. 53-59, aff’d 2016 BCCA 62:

Threats or promises

[53]      … In all cases, the key issue is whether, in one way or another, a quid pro quo was offered by police. If so, the confession will be inadmissible:  Oickle, paras. 48-57.

Oppression

[54]      … in oppressive circumstances an accused person might make a stress-driven confession to escape those conditions. Alternatively, his or her will might be overborne to the point of self-doubt and a confession might be prompted based on the oppression:  Oickle, paras. 58-62.

[55]      A wide range of factors might contribute to the creation of an oppressive atmosphere. For example, oppression might be found where a vulnerable interview subject is deprived of needed food, sleep, or medical attention; denied access to counsel; or subjected to excessively aggressive or intimidating questions over a prolonged period. Legitimate means of police persuasion such as pointed references to incriminating evidence, however, are permissible. On the other hand, persistent police questioning in the face of repeated assertions of the right to silence could support a conclusion that the subject's will was overborne and thus render a statement involuntary:  Oickle; Singh, para. 47.

[56]     The assessment of whether police conduct is so oppressive as to overbear an accused's person free will is a matter of degree and highly fact-specific. …The ultimate question always is whether the accused exercised free will by choosing to make a statement:  Singh, para. 53.

Operating Mind

[57]      A confession must be the product of an operating mind to support a finding of voluntariness. The operating mind criterion concerns the reliability of the confession and the accused's capacity actively to choose whether to speak to a person in authority. It requires that the accused knows what he or she is saying to such a person and that what is being said can be used to his or her detriment. However, a higher degree of awareness or cognitive capacity need not be established. In particular, it is unnecessary for the court to consider whether the accused is capable of making a good or wise choice or one that is in his or her best interests:  Oickle, paras. 63-64; R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, para. 45.

[58]     Evidence of intoxication or mental illness may raise a reasonable doubt as to whether an accused person has sufficient cognitive capacity to satisfy the operating mind criterion. As to the former, a high degree of intoxication will typically be required to render a statement inadmissible on this basis. Statements made to persons in authority by intoxicated individuals often meet the operating mind test and are, therefore, ruled admissible. In each case, as previously noted, the inquiry is highly fact-sensitive:  R. v. Groves, 2013 BCCA 446.

[26]         … the confessions rule extends to protect a broader conception of voluntariness than just reliability. The Court summarized the confessions rule at paras. 68-71 as follows:

(e) Summary

[68]      While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

[69]      The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.’s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process”: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

[70]      Wigmore perhaps summed up the point best when he said that voluntariness is “shorthand for a complex of values”: Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, § 826, at p. 351. I also agree with Warren C.J. of the United States Supreme Court, who made a similar point in Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207:

[N]either the likelihood that the confession is untrue nor the preservation of the individual’s freedom of will is the sole interest at stake. As we said just last Term, “The abhorrence of society to the use of involuntary confessions . . . also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” . . . Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case.

[71]      …Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above. …

[36]        She summarized the principle she had to consider at paragraph 40:

[40]         This case is about the broad concept of oppression and whether the constellation of factors at play caused A.D.’s will to be overborne such that there is a reasonable doubt that his choice to discuss the allegations was not the product of a free will to speak to authorities.

ANALYSIS

[37]        Mr. Susee-Holmes objects to the admission of his statement on the basis that his will was overborne and of his operating mind component Mr. McNamee argued that the Crown had to establish Mr. Susee-Holmes knew the person he was speaking to could use this statement as evidence.

[38]        Mr. McNamee argued that the warnings from the day prior were given when Mr. Susee-Holmes was under the influence of drugs with respect to not only the detention but each of the arrests. The only access to counsel Mr. Susee-Holmes had was for a phone bail hearing.

[39]        This is not accurate as he did speak with counsel when he was lodged in cells. Be that as it may, there is no indication from either Constable Eaket or Constable Thompson that Mr. Susee-Holmes was impaired and unable to understand his right to counsel. The video at roadside does not reveal any indicia of impairment by any substance. In fact, Mr. Susee-Holmes indicated he did understand his rights, made his own selections of counsel in conjunction with his co-accused, and spoke with a lawyer, not only when he was booked into cells but also at his bail hearing the following evening.

[40]        It is clear that Mr. Susee-Holmes was suffering from drug withdrawals during the police interview. Mr. Balison argued, however, a statement is inadmissible only if the person providing the statement is exhibiting a high degree of intoxication. There is no such evidence of that – or any – degree of intoxication before me on this voir dire.

[41]        In the interview, Constable Thompson reviewed the charges with Mr. Susee-Holmes again before he asked him any questions. Mr. Susee-Holmes did not ask to speak to a lawyer or verbally invoke his right to silence. When Mr. Susee-Holmes did not respond to a question, Constable Thompson moved on. Mr. Susee-Holmes was able to engage with Constable Thompson with appropriate responses. By this point, he had been given his rights numerous times and had said he understood them on each occasion but one. That one occasion was on the final arrest when he refused to respond.

[42]        Mr. Susee-Holmes was awake, although he did at times put his head down. He raised his head to speak. Toward the end of the interview, Constable Thompson noted Mr. Susee-Holmes’ discomfort. Mr. Susee-Holmes said he had not used meth in a couple of days and was suffering withdrawals. Constable Thompson offered medical attention which Mr. Susee-Holmes declined. Mr. Susee-Holmes asked to return to his cell. Constable Thompson asked another question, got no answer, and Mr. Susee-Holmes requested to go back to the cell again. Constable Thompson complied and told Mr. Susee-Holmes that if he got too bad, he was to let the guard know.

[43]        Mr. McNamee argued that Constable Thompson was evasive when he was asked whether he was working for the Crown. Constable Thompson’s response was that he did not work for the Crown but was gathering evidence for both sides. Mr. McNamee argued it was clear he was gathering evidence only for one side and it strains credibility that Constable Thompson was trying to return the money to Mr. Susee-Holmes. Mr. McNamee argued that Constable Thompson was implying to Mr. Susee-Holmes that if Mr. Susee-Holmes could convince him the money was his, he would receive it. Mr. McNamee described this as a subtle inducement, if not explicitly made. I reject that entirely.

[44]        Mr. McNamee argued that Mr. Susee-Holmes had been in custody for over 24 hours, almost continuously in Constable Thompson’s control. It was clear he was able to leave. It was obvious Mr. Susee-Holmes was withdrawing.

[45]        On the video, he does look to be in “bad shape”. Mr. McNamee argued that it was not enough to suggest that being awake and raising his head could dispel the operating mind concerns. The Crown must show that the person knew what they were saying, and that what they were saying could be used against them.

[46]        Mr. McNamee asked me to conclude that because Mr. Susee-Holmes had been in withdrawals during the interview, he must have been high when he was given his rights and warnings. However, Mr. Susee-Holmes’ statement to Constable Thompson was that he had not had meth for a couple of days. I have no evidence that he was high when he was initially detained, upon any of his arrests, when he exercised his right to counsel, or when he appeared on his telephone bail hearing.

CONCLUSION

[47]        The police interview is often an important component of a police investigation. In this interview, there is no evidence of police trickery, promises, threats, or challenges to Mr. Susee-Holmes’ operating mind. There is no evidence before me to suggest that Mr. Susee-Holmes was, at any point of the proceedings, too impaired – or, impaired at all - to understand his right to counsel. Nor is there any evidence before me to show that he was too ill or otherwise hampered in responding to Constable Thompson.

[48]        That Mr. Susee-Holmes wrongly thought Constable Thompson might work for the Crown only highlights his awareness that his statements may be used against him. By the time of the police interview, he was undoubtedly ill from not consuming drugs for a couple of days but had been provided with the police caution and Charter rights as well as right to counsel numerous times. Constable Thompson rightly terminated the interview when it became evident that Mr. Susee-Holmes was suffering too much from withdrawal.

[49]        I am satisfied beyond a reasonable doubt that Mr. Susee-Holmes’ statement was voluntary.

 

 

____________________________

S.D. Frame

Provincial Court Judge