Date: 20110125

Docket: 22193

Registry: Nelson

Regina

v.

Danyle Shereen Matheson

Before: The Honourable Mr. Justice McEwan

Ruling on Voir Dire 1

I

[1] The accused is charged on a six count indictment with driving while impaired causing death contrary to s. 255(3.1) of the Criminal Code; driving with a concentration of alcohol in her blood exceeding 80 milligrams of alcohol in 100 litres of blood, while causing an accident that caused death contrary to s. 255(3.1) of the Code; and dangerous driving causing death, contrary to s. 249(4) of the Code. The passenger who died was the accused’s father Harley Matheson. The additional charges are that another passenger Pentti Veli Parviainen, suffered bodily harm under  s. 255(2), s. 255(2.1) and s. 249(3) respectively, as a result of the same event.

[2] The incident occurred on April 25, 2009 near Winlaw, British Columbia.

[3] A voir dire was declared as to the admissibility of a statement made by the accused after the accident.

II

[4] Following the accident the accused was transferred by ambulance to the Kootenay Boundary Regional Hospital in Trail with serious injuries. At the hospital, a Trail member of the RCMP, Cst. Grebe attended with a blood sample kit. He arrived at 1:35 a.m. and the ambulance carrying the accused arrived shortly afterwards, at 1:43 a.m. She was taken immediately into a trauma room and attended by medical personnel. At 1:47 a.m. Cst. Grebe overheard a doctor ask the accused if there were any alcohol or drugs “on board” and heard her answer “alcohol”.

[5] At 1:56 a.m. a Cst. Orr arrived and Cst. Grebe briefed him on what had happened to that point. Cst. Grebe had no direct contact with the accused that night and left the hospital about 3 a.m.

[6] Cst. Orr is a member of the RCMP at Nelson, attached to the West Kootenay Traffic service. He was called out from his home in Fruitvale at 12:16 a.m. to attend what was described a fatal accident near Winlaw. He left home about 12:30 a.m. and was enroute to Winlaw when he encountered an ambulance at the side of the road in Thrums. It was carrying the accused and had stopped to take her vital signs.  As a result of this meeting Cst. Orr concluded that alcohol consumption may have had a role in the accident, and decided to follow the ambulance to Trail while another officer, Cst. Rennie, attended the scene in another police vehicle.

[7] Cst. Orr looked in on the accused at 1:55 a.m. She was attended by nurses and a Dr. Tara Gill. Dr. Gill told Cst. Orr that there were things they had to do, and Cst. Orr stood by. He was in a position to observe the accused throughout. She had a black eye and blood in her hair and had suffered an apparently serious ankle injury. Dr. Gill told Cst. Orr that he could speak to the accused at 2:07 a.m.

[8] Cst. Orr asked some preliminary questions. The accused gave her name and her address correctly.

[9] Cst. Orr then told the accused that she was detained for investigation on a charge of impaired driving causing death. The accused asked if it was her father who had died, and upon being told that he had, she was very emotional for about 90 seconds.

[10] When the accused was more composed Cst. Orr gave her a full police warning from his card. This included the advice that she was not obliged to say anything but that anything she did say could be used against her, and the outlines of her right to counsel. Cst. Orr read the card into the record. He said that the accused he answered “yes” to questions about whether she understood the caution, and also that she had access to a 24 hour “duty” lawyer, and “no” when asked if she wanted to speak to a lawyer. Cst. Orr offered the accused use of his cell phone and privacy if she wished to make a call.

[11] Cst. Orr testified that as a result of the information that had come to him, he formed the opinion that he had reasonable grounds to make a demand for a blood sample. He read the demand he made into the record. This occurred at 2:09 a.m.

[12] The accused was then taken for further treatment and x-rays and Cst. Orr stood by again. He noted that the accused went to x-ray at 2:22 a.m., left at 2:50 a.m., and gave blood to a lab technologist for treatment purposes at 2:55 a.m. Cst. Orr gave Dr. Gill the blood kit he had received from Cst. Grebe, but it did not work. He said Dr. Gill took samples of blood using a hospital kit at 3:01 a.m. and 3:02 a.m.

[13] Once the samples were secured Cst. Orr prepared the notices and certificates that are required. They were served on the accused at 3:38 a.m. He says he read them to her.

[14] Cst. Orr said that there was some further conversation wherein he asked if he could contact anyone on the accused’s behalf and was advised that she did not need that. She also said “I don’t remember driving”, and, when asked how much she had had to drink replied “I don’t know”. After a few remarks of regret and the hope that things would work out for the accused, Cst. Orr left.

[15] Cst. Orr said that during that time the accused seemed alert and that after the first few minutes she was placid. She did not express any confusion about what she was doing. Cst. Orr took a picture of the accused at 3:44 a.m. for identification purposes.

[16] During the following day, Cst. Orr spoke to a number of people and dealt with the exhibits. At 4:18 p.m. he called the hospital to check on the accused’s status. He was advised that she had been transferred from the Emergency Room to the Paediatric Ward on the fourth floor of the hospital.

[17] At 5:30 p.m. Cst. Orr attended the hospital and was advised by a nurse that the accused was slated for surgery for a serious ankle injury. She had also suffered head and facial injuries. Cst. Orr was advised he could speak to the accused. He said that when he entered the hospital room the accused was sitting up in bed and was by herself.

[18] Cst. Orr said he introduced himself and reminded the accused that he had been in the hospital the night before. He cautioned her just out of memory that anything she said might be used against her in Court. He said that the accused indicated that she understood. Cst. Orr said that it was implicit why he was there. After some general conversation about the accused’s condition the subject turned to the events of the previous evening. Cst. Orr did not have a recording device and his notes do not reflect the whole conversation, although he did jot down the accused’s answers to his questions.

[19] From this conversation he noted that the accused said she drank about half of a 200 ml bottle of a liquor called “Fireball”; that a pair of casual shoes found in the vehicle belonged to her; that she was aware that she did not possess a valid driver’s license, and that it was not unusual for her to drive the car if her father had had too much to drink.

[20] The accused said that the key ring found at the scene was one both she and her father used. She said she had been at a residence she called “Byron’s” until about 9:00 p.m. and that her father was pretty drunk. She said she did not know who was driving. She said he was heading to a bank machine in Slocan in order to get money for cigarettes.

[21] Cst. Orr said that the conversation occupied 9 minutes between 5:30 p.m. and 5:41 p.m. (there was a brief interruption at 5:32 p.m.). He said that that was the full extent of the conversation. He said the accused was soft spoken, placid and alert and that he felt sorry for her. He just gave the accused the police caution and did not consider her detained, so there was no recitation of the Charter advice respecting counsel. He said if she had said she did not want to talk he would simply have left the room.

[22] Cst. Orr said he subsequently asked Cst. Zilkie to get a detailed recorded statement from the accused. He described his purpose in attending the hospital on the second occasion as seeking “some pointed details”.

[23] In cross examination Cst. Orr said that when he first saw the accused at 2:07 a.m. he detained her because he felt he had reasonable and probable grounds to believe that she had committed the offence of impaired driving, and made a demand for a sample of blood. There was some delay while the hospital took x-rays and blood for its purposes. Cst. Orr said he did not re-advise the accused of her right to counsel when the blood samples were taken.

[24] Cst. Orr said that he learned more details about the accident between 2 a.m. and 5 p.m. on April 26^th. He was advised that the accused vehicle had failed to negotiate a right to left curve and may have been travelling too fast. He made contact with the hospital in Nelson to check on the condition of the other passenger, who, he was advised, had sustained minor injuries.

[25] Cst. Orr said his purpose in re-attending in the afternoon was to address some of the details that came up such as the key ring and the shoes, for the purpose of ascertaining whether the accused was the driver. He confirmed that he offered only the police caution and did not read her Charter rights to her on the second attendance. He did not tell her she was not obliged to talk, but only said that what she said might be used against her in court. Cst. Orr said he was not after a formal statement but was looking for information on a few specific issues. He agreed that in hindsight that it would have been better had he brought a recording device.

[26] Cst. Orr said nothing that the accused told him was information he did not know. He said the main thing that came out of the conversation was the accused’s assertion that she said she did not know who was driving. He considered his questions about the shoes and the key ring to be the most important things he noted.

[27] Cst. Orr acknowledged that he did not record the whole conversation in his notebook and that his notes of what the accused said were not “word for word”.

[28] Cst. Zilkie testified that he is an RCMP officer stationed at Trail and that Cst. Orr asked him to attend the Kootenay Boundary Regional Hospital to take a statement from the accused. Cst. Orr had briefed him on the matter.

[29] Cst. Zilkie went to the Kootenay Boundary Regional Hospital in the company of Sgt. Wicentowich. They arrived shortly before 1 p.m. on April 27^th. Both he and Sgt. Wicentowich were in plain clothes. The accused was semi-prone in bed when they entered her room. The officers advised that they were there to follow up on information for the investigation and asked if the accused was willing to speak to them, to which she replied affirmatively. Cst. Zilkie had a digital audio recorder which he placed where the accused could see it.

[30] The encounter proceeded with the officers advising the accused that she was under investigation for “impaired driving causing death, something to that effect”. She was again told that anything she said could be used against her. They did not read from a card or record the warning the accused was given.

[31] The recording took place between 1:06 p.m. and 1:25 p.m. with one short gap during which there was no conversation. The accused was calm and composed and did not appear confused.

[32] Cst. Zilkie and Sgt. Wicentowich did not give the accused a Charter warning. Cst. Zilkie said that she was not under arrest or detained and that there was no Charter issue in his view.

[33] On cross examination Cst. Zilkie confirmed that the accused was not advised of a right to counsel.

[34] Sgt. Wicentowich confirmed that he and Cst. Zilkie did not consider the accused to be detained and said if they had been asked to leave they would have gone.

[35] The statement and an accompanying transcript were marked as Exhibits on the voir dire.

III

[36] There was a gap of about 10 days between the leading of evidence on this voir dire and the resumption of proceedings for the “samples” voir dire. When this matter resumed, the Crown advised the court that the only statement it would seek to tender was the transcribed statement given to Cst. Zilkie and Sgt. Wicentowich, and not the conversation with Cst. Orr.

[37] The recorded statement began with the following exchange:

Jason ZILKIE: It’s Constable Zilkie and Corporal Wicentowich of the Trail and Greater District RCMP, the 27^th of April, 2009, and we’re at room 411 at the Kootenay Boundary Regional Hospital with Danyle Matheson. Um, Danyle, before I started this recording, ah, we had a brief conversation in which I explained to you our purpose of being here and that’s to ask you some clarifying questions, ah, with regards to um, a fatal motor vehicle accident that occurred on the 24^th of April out near Winlaw. Um, at that time I explained to you that ah, I was advised that you had already been cautioned with ....

Danyle MATHESON:  Ya.

ZILKIE:            .... regards to you being under investigation for, um, Impaired Operation of a Motor Vehicle Causing Death. Ok? It’s ah, important for me to understand that you, you, you realize that and that anything that we talk about, um, could be used as evidence in the future.

MATHESON:   Ya

ZILKIE:            OK. It’s also important for me to know that any conversation you had with any other officer, relating to this investigation, um, I need to know that there is, there hasn’t been any promises that if you talk to the police there’d be any special favors or anything like ....

MATHESON:   No

ZILKIE:            .... that? Kay. I also need to know that ah, you haven’t been told to provide a statement to the police.

MATHESON:   No

ZILKIE:            OK, So anything that we do talk about is completely voluntary.

MATHESON:   Um, hmm.

ZILKIE:            OK. But, there is the possibility that that evidence could be used in court in a ....

MATHESON:   Ya.

ZILKIE:            ....future date. That’s clear?

MATHESON:   Yes.

ZILKIE:            OK. Um, as I said, we’re, we’re here on behalf of Constable Orr of the West Kootenay Traffic Services. He had some clarifying questions. They deal mainly with um, the hours preceding the accident. What I’d like you to do is take me back to the, during the day. I know this happened about midnight.

[38] The evidence given on the voir dire respecting the statement satisfies me that the statement was given voluntarily, under no compulsion, and that there were no threats or inducements operating in the accused’s mind when it was given. The sole issue is whether the accused’s s. 10(b) Charter rights were violated and whether the statement should be excluded from the evidence in this trial.

[39] The issue turns largely on the question of whether the accused was “detained” on the occasion when the statement was given.

[40] There is no question that the accused had been “detained” by Cst. Orr in the hospital in the immediate aftermath of the incident. She was given the complete warning and offered her right to counsel. I accept that the entire warning was given.

[41] On Cst. Orr’s subsequent visit and on the visit by Cst. Zilkie and Sgt. Wicentowich the accused’s circumstances were essentially the same. She was in a hospital bed. She was not literally confined or detained by the police, but she was effectively confined by the circumstances. Officers Zilkie and Wicentowich discussed whether the accused was “detained” on their way to the hospital. The point of this was to decide whether a warning was required and whether the accused’s right to counsel had to be given again. They determined that the accused’s situation was not a detention in that sense and did not give either a formal warning or remind the accused of her right to counsel.

[42] The defence appeared to concede and then resile somewhat from a position that the “gist” of the right to silence was included in what Cst. Zilkie said at the outset although it was rather informally put. There is, however, some difference between being told that one is not obliged to say anything and “you haven’t been told to provide a statement to the police.” I accept that the potential use of any statement in evidence was adequately, if informally drawn to the accused’s attention, although part of the context of any such warning is, of course, whether the accused understood that there was no obligation to say anything.

[43] It is clear from the prefatory remarks reproduced above that Cst. Zilkie was linking the visit to Cst Orr’s earlier attendance. The objective was identified as “clarifying” certain matters on behalf of Cst. Orr. There is a further allusion to conversation before the recording began, “... at that time I explained to you that ah, I was advised that you had already been cautioned with ... regards to your being under investigation for an, “Impaired Operation of a Motor Vehicle Causing Death” O.K.”.

[44] This hearkens back to the complete warning given by Cst. Orr in the hospital just before he made a demand for a blood sample.

[45] One way of looking at this is that the accused in her dealings with the police continued to be under detention. There is arguably a continuum with the initial objective of obtaining a blood sample, to the second, further information gathering encounter about what occurred. It might be arguable on that theory that the warning given by Cst. Orr on the first occasion covered subsequent contacts. That is not, however, how the case was put before the court. The Crown advanced the police position that the accused was only detained until the blood sample was taken, and that subsequent contacts by both Cst. Orr and by Cst. Zilkie and Sgt. Wicentowich were simply information gathering exercises.

IV

[46] The defence submits that the accused was “detained” in the circumstances. In making that assertion she does not submit that the police had taken explicit control over her or commanded obedience. She suggests, rather, that her physical condition and circumstances she was not going anywhere and that she was placed in the “second” situation described in R. v. Grant, 2009 SCC 32 at paras. 30 - 32:

30        Moving on from the fundamental principle of the right to choose, we find that psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject’s position would feel so obligated. The rationale for this second form of psychological detention was explained by Le Dain J. in Therens as follows:

In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the 2009 Carswell Ont 4101, 2009 SCC 32, J.E. 2009-1379, 66 C.R. (6^th) 1, 245 C.C.C. (3d) 1, 82 M.V.R. (5^th) 1, 309 D.L.R. (4^th) 1, 391 N.R. 1, 253 O.A.C. 124, [2009] 2. S.C.R. 353, 193 C.R.R. (2d) 1

form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.

[Emphasis added; p. 644]

31        This second form of psychological detention – where no legal compulsion exists – has proven difficult to define consistently. The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand. As held in Therens, this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police. As discussed in more detail below and summarized at para. 44, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.

32        The objective nature of this inquiry recognizes that the police must be able to know when a detention occurs, in order to allow them to fulfill their attendant obligations under the Charter and afford the individual its added protections. However, the subjective intentions of the police are not determinative. (Questions such as police “good faith” may become relevant when the test for exclusion of evidence under s. 24(2) is applied, in cases where a Charter breach is found.) While the test is objective, the individual’s particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police, and thus the reasonableness of any perception that he or she had no choice but to comply with the police directive. To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual’s right to choose, and conduct that does not.

[emphasis added]

V

[47] The position of the Crown starts with the summary at para. 44 of Grant:

1.         Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2.         In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a)         The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b)         The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c)         The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[48] The Crown refers as well to the companion case of R. v. Suberu (2009) S.C.C. 32 at paras. 21 - 23:

21.       In Grant, we adopted a purposive approach to the definition of “detention” and held that a “detention” for the purposes of the Charter refers to a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands if the state. The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter.

22.       While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police. As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole.

23.       However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. This Court’s conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows:

“Detention” has been held to cover, in Canada, abroad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The Person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the appellant was detained by the police when they searched him. We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so.

[49] The Crown submitted that the characteristics of the accused’s encounter with Cst. Zilke and Sgt. Wicentowich are not those in which a reasonable person would conclude that he or she had no choice but to cooperate with the police, and points out that the accused acknowledged that anything she might say would be voluntary. The Crown submitted that the accused was in her “own room” in hospital and described it as a “neutral location”, that was, if anything, her space, not a police controlled environment. The Crown described the encounter as simply an invitation to talk if the accused wanted to talk.

[50] The Crown referred to R. v. Hawkins (1993) 2 S.C.R. 157, a case in which a statement was admissible without a Charter warning because the accused had not been “detained”. The interview in that case was preceded by a telephone call and conducted, at the election of the accused, at the police detachment. The accused attended there on his own.

[51] The Crown also referred to R. v. Kay 53 C.C.C. 93d) 500 (BCCA). This was a case involving a statement taken in hospital in the aftermath of a possible impaired driving offence. The Court described the situation and its ruling as follows:

11.       In my opinion, both the Bonogofski case and the Harder case are distinguishable from this case. All that occurred in this case was that a police officer investigating a motor vehicle accident, in which a crime may have been involved, was asking questions, including asking questions of someone who might, in the end, prove to be accused of a criminal offence. That is like the state of any other police investigation. In my opinion, the mere asking of questions at the start of the investigation from people who might turn out to be involved in criminal acts does not, in itself, constitute a detention and does not bring into play the rights under s. 10(b) of the Charter.

12.       The additional fact relied on, in this case, by counsel for the appellant was that the appellant was confined to a hospital bed because his injuries and his need for medical treatment had placed him there at the time that the questions were asked. In my opinion, that is not a confinement that would constitute a detention, in itself, nor did the circumstances of the questioning give rise to any constraint or coercion or any reasonable apprehension of restraint or coercion, such as to produce a detention.

13.       In my opinion, therefore, there was no detention in this case until at the earliest, the request was made to the appellant to provide a sample of his blood. By that time, the appellant had voluntarily made the statement about having had quite a few drinks that afternoon. Whatever may have been the grounds for requesting the sample before that admission, as to which it is not necessary for me to reach any conclusion, once that statement was voluntarily made, not under detention, there is no question about the “reasonable and probable” grounds being present and the demand being a proper one. It follows, in my opinion, that the first five of the appellant’s grounds, which he himself has linked together as turning on the question of detention, must fail.

VI

[52] The situation of the accused in the present case is significantly different from the situation in Hawkins. The accused here had no warning and was offered no choice as to when or under what circumstances she would speak to the police. They appeared at her hospital bedside without notice, at a time of their choosing. The observations of Le Dain, J. in Therens (reproduced in paragraph 47, above) describe the situation the accused was in at that point. Kay, in my view describes physical circumstances much like those of the accused, although the occasion was different. In Kay the issue was over whether statements given before a blood sample demand, and which formed part of the reasonable and probable grounds for making the demand, should have been subject to a Charter warning. In the present case, at the point at which the accused was questioned by Cst. Zilkie, she had already been Chartered and warned and had given a blood sample.

[53] The police officers testified that had the accused asked them to leave they would have done so, but the fact is that they did not tell the accused that. The situation was similar to that of the citizen posited in Therens which was quoted in Grant (in paragraph 47 above).

[54] In the context of the focussed suspicion that led to a demand for blood samples, it is difficult to see how “follow up” questioning was in the nature of general enquiries. The accused was in no position to exercise any personal election to leave, and had not been advised that she had the option to request the departure of the police, or been given an opportunity to consider her position. Two officers simply appeared at her bedside. I am of the view that the accused was, at that time, under the kind of psychological restraint that amounts to detention within the authorities.

[55] Accordingly, the accused should have been given a full Charter warning as to her right to counsel, and the availability of counsel. There is considerable authority to the effect that such a warning, once given, need not be repeated or reiterated. Although the case was not argued in this manner, I have considered whether the warning given by Cst. Orr should have been considered sufficient to extend to subsequent contacts with the authorities. The second occasion was however, significantly different, involving different officers and a different objective. I am satisfied on balance that, in fairness, the warning should have been given at the beginning of that communication as well.

[56] It was clear from the discussions the officers said they had before they attended the accused at the hospital, that they were alive to the issue and had made a judgment call that it would further their objectives not to further Charter and warn the accused. This is not a case of imposing a formulistic requirement on exigent circumstances. This matter could easily have been resolved by offering the accused her rights, as a preface to her giving any statement.

[57] The risk was, of course, that, had she been advised, as the officers recognized, they might not have been successful in getting her to speak to them. I do not think it is sound to encourage this sort of fine distinction. Where the judgment call the police make is an attempt to preserve a disadvantage to the accused, it may inherently give rise to a concern, or contribute to an inference, that circumstances akin to those present in Therens are in play. I am satisfied on the evidence, here, that the accused was detained in the circumstances, that her s. 10(b) rights were violated.

[58] I do not think there are circumstances that would justify the reception of this evidence notwithstanding the breach. To receive a statement taken in such circumstances would bring the administration of justice into disrepute. The statement therefore will be excluded from the evidence in the trial.

__”T.M. McEwan”

Date: 20110125

Docket: 22193

Registry: Nelson

Regina

v.

Danyle Shereen Matheson

Before: The Honourable Mr. Justice McEwan

Ruling on Voir Dire 2

I

[1] The accused is charged on a six count indictment with driving while impaired causing death contrary to s. 255(3.1) of the Criminal Code; driving with a concentration of alcohol in her blood exceeding 80 milligrams of alcohol in 100 litres of blood, while causing an accident causing death contrary to s. 255(3.1); and dangerous driving causing death, contrary to s. 249(4). The passenger who died was the accused’s father Harley Matheson. The additional charges are that another passenger Pentti Veli Parviainen, suffered bodily harm under  s. 255(2), s. 255(2.1) and s. 249(3) respectively, as a result of the same event.

[2] The incident occurred on April 25, 2009 near Winlaw, British Columbia.

[3] A voir dire was declared as to the admissibility of a sample of blood given by the accused after the accident.

II

[4] The defence takes the position that the accused’s rights were breached in the lead-up to the taking of a blood sample in the early morning hours of April 26, 2009.

[5] Following the accident near Winlaw the accused was to be taken to Trail Regional Hospital by ambulance. Her injuries were considered serious, although, in a cognitive sense, she was assessed as fully alert, and noted to be 15/15 on the Glasgow coma scale by the ambulance attendant, Mr. Reitan. She was responsive to all his questions.

[6] Cst. Orr of the Trail Detachment of the RCMP attended the hospital. He arrived at 1:55 a.m. Cst. Grebe another RCMP officer had arrived at the hospital a bit earlier. He had overheard a conversation between medical personnel and the accused in which she was asked if there were drugs or liquor “on board” and she answered “alcohol”. Cst. Orr said his purpose was to find out about the accident and if the accused was the driver. He was not initially permitted to speak to her because medical personnel, including a Dr. Gill, were still treating her. Cst. Orr noted that the accused seemed able to respond to the doctors.

[7] Cst. Orr spoke to the accused at 2:07 a.m. He said she seemed bewildered and quiet. When Cst. Orr advised the accused that her father had died she cried for 60 - 90 seconds. He said he gave her the full police caution and the full Charter warning after she had regained her composure. He read the caution and warning from a card which he read into the record in Court. Cst. Orr then made a demand for a blood sample at 2:09 a.m. The accused said “yes” indicating she agreed to give a sample.

[8] Cst. Orr was then required to stand aside while the accused received further medical attention.

[9] At 3:01 a.m. Dr. Gill took blood samples, and subsequently signed a certificate.

[10] Cst. Orr was in uniform when he first spoke to the accused at 2:07 a.m. He explained who he was. He asked several questions, and got responsive answers as to her name, date of birth and address. He advised the accused that she was detained and under investigation for impaired driving and asked her if she understood. She replied “yes”. When Cst. Orr told her someone had died she asked if it was her dad. He asked if she understood the cautions and she replied affirmatively.

[11] The accused answered Cst. Orr’s enquiry about whether she wanted counsel, by saying “No”. He also offered her his cell phone for that purpose.

[12] Cst. Orr said the accused was responsive to all of his questions and that she appeared to understand.

[13] The accused testified on the voir dire that she now remembers talking to someone but that she did not know it was a police officer. She said she was really upset and did not remember the car accident. She said she did not recall being given her Charter rights or the police warning. She said she did not recall any discussion about the availability of legal aid. She said she would have asked for a lawyer.

[14] The accused said she did not know whether the things Cst. Orr recounted  actually occurred, because she did not remember.

III

[15] The defence submits that the accused’s physical condition and pain, combined with the emotional shock she was enduring as a result of her father’s death, should be considered along with her evidence that, in other circumstances she would have called a lawyer.

[16] The defence tenders one case. R. v. S.L.H. 2004 BCSC 410, concerned a woman who was stopped at the roadside on suspicion of impaired driving. She showed several of the common indicia of impairment, and was clearly upset or distraught. She was read her rights from a card and indicated that she understood those rights. The question on an appeal to the Supreme Court from the Provincial Court was whether she had understood the Charter advice she had received and, if not, what effect that should have.

[17] The accused in that case testified that the day she was arrested she had told a counsellor that she had been a victim of sexual abuse and was distraught as a result. In considering the circumstances, Melnick, J. made the following observations:

...it is clear that the onus is on an accused to adduce evidence challenging compliance with the Charter. It is also clear that where there are special circumstances, the police have a duty to take extra steps to ensure that an accused understands his or her rights. Although the cases do not say so expressly, it appears that the courts apply a modified objective test to the question of whether or not an accused understands his or her s. 10 (b) rights where special circumstances are present. Although there is authority for the proposition that whether an accused understands his or her s. 10 (b) rights is an objective test, that is likely questionable given the jurisprudence on special circumstances (see R. v. Messervey (1991), 96 Nfld. & P.E.I.R. 305 at 308 (Nfld. Prov. Ct..))

19        The Supreme Court of Canada in R. v. Bartle, [1994] 3 S.C.R. 173, summed up the state of the law in this way at 93:

[A]bsent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution[.]

***

... there may be special circumstances requiring the police to make inquiries as to whether an accused understands his or her s. 10(b) rights that arise without the police being aware of them. There is no allegation in this case of reduced intellectual capacity, language issues or that Ms. S.L.H. was too intoxicated to comprehend her legal rights. However, Averill indicates that emotional distress may qualify as such special circumstances, whether or not the distress is overt and whether or not the accused explains his or her mental state.

***

25        Mr. Justice Vancise in Mohl said this about a breach of s. 10(b) at 440:

The obligation or duty owed must be discharged by the person detaining or arresting, in order to ensure compliance with s. 10(b). The right is violated by his actions or conduct, not the actions or conduct of the person detained or arrested.

A failure of the person detained to understand is not an “action” or “conduct” in that sense. Rather, it is the essential disconnect between the giving of advice and the appreciation of that advice that creates the problem. Cpl. Maze failed to make Ms. S.L.H. understand her Charter right to counsel. That is because of the special circumstances the provincial court judge found existed. Although Ms. S.L.H. did not articulate her emotional upset to Cpl. Maze, this upset nonetheless existed and impacted on her capacity to understand what was being said to her. While no criticism can be levelled at Cpl. Maze in these circumstances, the reality was such that Ms. S.L.H. did not understand her rights.

26        In most cases, whether an accused understands his or her right to counsel will be determined objectively. However, there will be rare cases when, despite the best, honest efforts of the police officer to communicate those rights, special circumstances will exist such that the accused will not understand them. If an accused truly does not understand his or her right to counsel, for whatever reason, that right has been breached. That will be so even when, as here, the accused has communicated to the police officer that he or she did understand.

27        Having come to this conclusion, I repeat that common sense dictates that such circumstances will be rare indeed. However, to not recognize the possibility that a person may subjectively not understand his or her rights, even though he or she objectively seems to understand them, would risk making the act of communicating Charter rights a box-checking exercise. Charter rights are useless if they are not understood because a detainee who does not understand his or her rights cannot decide whether to exercise them.

III. Conclusion

28        In this case, there was evidence before the provincial court judge from which he could properly conclude that Ms. S.L.H.’s Charter rights had been breached by her having not understood her right to contact a lawyer. The provincial court judge did not refer to s. 24(2) of the Charter. However, he did not err by having excluded from evidence the certificate of analysis obtained subsequent to the breach. To have admitted evidence obtained as a result of the breach would have brought the administration of justice in disrepute. In the absence of that evidence, he did not err in finding that she was not guilty of the offence in question.

[18] The accused submits that her situation is comparable, and that the evidence here suggests that while she apparently understood what was being said to her, and actually indicated positively that she did understand, she did not. The accused submits that the sample should be excluded on the basis that there was a breach of her Charter rights in that she did not actually appreciate what she was being told.

IV

[19] The Crown’s position is that the case law does not support the conclusion the defence urges upon the court in the circumstances of this case. The Crown cites R. v. Evans [1991] 1 S.C.R. 869 at para. 30 for the basic proposition:

30        When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

[20] In R. v. Hollis, 76 CCC (3d) 421 the British Columbia Court of Appeal, cited Evans, in making the following observations:

33        The right to be informed of the right to counsel imposes a duty on the police to communicate clearly to the detainee the fact that he or she has a right to retain and instruct counsel without delay; R. v. Anderson, supra, R. v. Evans, [1991] 1 S.C.R. 869, 4 C.R. (4^th) 144, 63 C.C.C. (2d) 289, 124 N.R. 278, 3 C.R.R. (2d) 316. As pointed out in Evans, in most cases it can be inferred from the circumstances that the detainee understands what she or he has been told. In such cases, the duty will be discharged when the detainee responds affirmatively to the question whether the advice given is understood. But, as was also pointed out in Evans, if there is something in the circumstances which suggests that the detainee does not understand the right, a duty to make further explanation or to facilitate the understanding will arise.

34        Just how far that duty extends will depend upon the circumstances of the case. As Watt J. suggested in R. v. Parks (1988), 33 C.R.R. 1 (Ont. H.C.), at p.13, when circumstances exist which suggest a lack of understanding of the right to counsel, the duty of the police is to:

render adequate and constitutionally sufficient the [detainee’s] understanding of [the] right to retain and instruct counsel.

In the context in which the phrase “adequate and constitutionally sufficient” is there use, I take it to mean an understanding which is sufficient to enable the detainee to make an informed decision whether to exercise the right.

***

... in absence of any evidence to suggest the contrary, a constitutionally sufficient understanding of the right will necessarily be inferred from a positive response to the question “do you understand?” Even where there is evidence of a less than perfect understanding, it may nonetheless be constitutionally sufficient. In Smith, supra, McLachlin J. noted the following at p. 728 [S.C.R.] of the report:

It has never been suggested, however that full information is required for a valid waiver. Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than more common parlance in communicating the extent of jeopardy. Finally, the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel.

[21] The threshold is low as indicated by the Supreme Court of Canada in R. v. Whittle [1994] 2 S.C.R. 914 at para. 50-52:

50        The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.

51        The same standard applies with respect to the right to silence in determining whether the accused has the mental capacity to make an active choice.

52        In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counsel and that he or she can dispense with counsel even if this is not in the accused’s best interests. It is not necessary that the accused possess analytical ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence. The accused must have the mental capacity of an operating mind as outlined above.

V

[22] The answer to the question turns on whether the accused has established “special circumstances” that impacted on her ability to understand the warnings given by the police, despite the fact that the ambulance attendant, the medical personnel and Cst. Orr were all under the impression that she was responsive and appeared to comprehend what was said to her.

[23] The accused’s evidence is not quite that she was in so much physical and emotional pain that she did not understand what was being said to her, but rather that she does not presently remember what was said.

[24] The cases where “special circumstances” are found are rare. Here, there is substantial evidence from more than one person, and a body of circumstantial evidence respecting the events at the hospital, that suggest that the accused was alert and communicative throughout the evening. She was understandably upset by the news of her father’s death, but her response was appropriate in the circumstances, and did not suggest disorganized thinking. She was approached by Cst. Orr when the shock had subsided, and was responsive to him.

[25] It is not at all clear what the accused’s lack of recollection is about. It does appear plain that on the night of the accident she was sufficiently alert and to understand what was being said to her by a number of people, including Cst. Orr. In my view she has failed to carry the burden of proof of “special circumstances” applying the tests set out in the authorities. The blood samples are admissible on evidence in this trial before the jury.