R v Carpenter, 2016 NWTSC 30 Date: 2016 05 20 Docket: S-1-CR-2015-000078
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: HER MAJESTY THE QUEEN - and - FRANCIS WILLIAM CARPENTER RULING ON VOIR DIRE [1] Francis William Carpenter faces seven charges: assault causing bodily harm, contrary to section 267(b) of the Criminal Code; sexual assault causing bodily harm, contrary to section 272(1)(c) of the Criminal Code; aggravated sexual assault, contrary to section 273(2)(b) of the Criminal Code; assault with a weapon, contrary to section 267(a) of the Criminal Code; two counts of unlawful confinement, contrary to section 279(2) of the Criminal Code; and sexual assault, contrary to section 271 of the Criminal Code.
[2] Mr. Carpenter’s jury trial on this charge was scheduled to commence on April 18, 2016 in Tuktoyaktuk. On Tuesday, April 12, 2016, a voir dire was held in relation to a statement made by Mr. Carpenter to Constable Connor Robertson of the Royal Canadian Mounted Police on February 7, 2015.
[3] On April 14, 2016, I ruled that I was satisfied beyond a reasonable doubt that the statement given by Mr. Carpenter to Cst. Robertson was voluntary. I advised counsel that full reasons would be provided either at the trial the following week or in writing. Following jury selection on April 18 and 19, 2016, a jury could not be selected and a mistrial was declared. Accordingly, these are the written reasons for the decision on the voir dire.
[4] The issue on the voir dire is voluntariness. Mr. Carpenter has not brought an application alleging that any of his rights under the Canadian Charter of Rights and Freedoms were infringed.
Page 2 [5] The Crown called Constables James Fogarty and Riley Scarf, the two police officers who were involved in the arrest of Mr. Carpenter as well as Cst. Roberston, the officer who took the statement. The videotaped statement of the accused was also viewed up until 10:11 into the recording when the DVD stopped playing. Counsel agreed that the audio of the statement could be listened to and that it was not necessary to view the statement. An audio version of the statement was played in court. The DVD of the videotaped statement and the CD of the audiotaped statement were both entered as exhibits on the voir dire.
[6] The Defence concedes that there were no threats or promises made to Mr. Carpenter and that he was offered no inducements. The Defence also concedes that there was no atmosphere of oppression, no police trickery and that Mr. Carpenter had an operating mind. I have reviewed the statement given by Mr. Carpenter and the evidence of the police officers and I do not view these aspects of voluntariness as being in question.
[7] The Defence argues that voluntariness has not been established and that in the circumstances, the accused was not sufficiently informed of his right to remain silent, did not fully understand that he could choose not to speak with Cst. Robertson and did not understand that everything he said could be used against him in evidence.
BACKGROUND [8] On February 7, 2015, Constables Fogarty and Scarf attended a residence in Inuvik, Northwest Territories. They were assisting the R.C.M.P. in Tuktoyaktuk and looking for the accused, Francis Carpenter. Their intention was to locate and arrest Francis Carpenter for aggravated assault. Cst. Fogarty located Francis Carpenter in a bedroom hiding behind a couch. He was placed under arrest by Cst. Fogarty. The officers then escorted him to the front door. At the front door, Cst. Scarf told Mr. Carpenter he was under arrest for an incident in Tuktoyaktuk and advised him of his right to a lawyer and that anything he said could be used in evidence against him. Francis Carpenter indicated that he understood his rights.
[9] Mr. Carpenter was transported to the detachment and lodged into cells. At the detachment, Mr. Carpenter was given his Charter rights and the police caution by Cst. Fogarty from a card. He was given an opportunity to speak with counsel of choice. He spoke with Nikolaus Homberg, a lawyer, for approximately 10 minutes. Mr. Carpenter was subsequently placed in cells.
[10] Cst. Robertson took an audio and videotaped statement from Mr. Carpenter at approximately 11:43 p.m. that same day. Cst. Robertson re-arrested Mr. Carpenter for ten offences: aggravated assault, sexual assault causing bodily harm,
Page 3 sexual assault, assault, two counts of forcible confinement, and four counts of breaching probation. He then provided him with his section 10(b) rights and police warning from a card. Mr. Carpenter indicated that he understood each of those. Cst. Robertson then had a brief exchange with Mr. Carpenter regarding his understanding of the police warning. Cst. Robertson proceeded to take a statement from Mr. Carpenter that was approximately 1 hour and 9 minutes long.
[11] During the statement, Mr. Carpenter appeared calm and relaxed. He engaged in conversation with Cst. Robertson and answered some questions but consistently refused to answer any questions regarding the allegations. He repeatedly referred to telling his story in court and that his lawyer had advised him not to say anything.
POSITION OF THE PARTIES [12] The Crown’s position is that the accused was advised of his right to remain silent both informally, by Constable Scarf inside the residence, and formally by Cst. Fogarty at the cell block. He was later advised by Cst. Robertson of his right to remain silent at the outset of the interview.
[13] Mr. Carpenter was given the opportunity to contact counsel and he spoke to counsel of his choice. The Crown argues that counsel clearly explained the right to remain silent as the accused referred to his lawyer’s advice not to say anything during the statement on several occasions.
[14] The interactions between Mr. Carpenter and Cst. Robertson during the interview demonstrate that the accused knew that he did not have to answer questions and that he was capable of doing so. The accused chose to answer questions about some things but with respect to the allegations, he refused to answer Cst. Robertson’s questions. The accused knew that evidence could be used at trial because he specifically referred to that in his statement.
[15] The Crown submits that, in all of the circumstances, the accused knew that he had the right to remain silent. In his interactions with Cst. Robertson, he knew that he had a choice to speak and that if he did, it could be used in evidence against him at trial. Furthermore, nothing the officers did affected the accused’s ability to make the choice to speak to the officers.
[16] The Defence’s position is that because Mr. Carpenter declined to answer certain questions, this demonstrates that the accused did not understand fully the right to remain silent. The accused did not realize that literally anything that he said to the police could be used against him and not just what he might say about the allegations before the court.
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[17] The Defence also points to an exchange where Cst. Robertson advised the accused, in layman’s terms, regarding the meaning of the police warning. Defence argues that the language that was used was confusing and the purpose of why Cst. Robertson was taking the statement (to gather evidence) would have been unclear to the accused.
[18] The Defence submits that, in all of the circumstances, it is not clear that the accused understood that all of what he said could be used in evidence against him.
LEGAL FRAMEWORK [19] In a voir dire where the issue is voluntariness, the Crown is required to prove beyond a reasonable doubt that the statement made by the accused person to a police officer or person in authority is voluntary: R. v. Oickle, [2000] 2 S.C.R. 3.
[20] The concern with voluntariness is that an involuntary statement is often unreliable. Assessing the voluntariness of a statement is a contextual exercise which involves the consideration of a number of factors including whether the statement is the result of threats or promises by the police officer; whether the statement was taken in oppressive circumstances; whether the accused had an operating mind; or whether the statement was taken as a result of police trickery. Oickle, supra.
[21] The Supreme Court of Canada further considered voluntariness and the impact of the right to remain silent in R. v. Singh, 2007 SCC 48. The concept of voluntariness also includes a consideration of an accused’s right to remain silent when being questioned by the police. The common law recognizes that a person does not have to answer questions and has the right to remain silent.
[22] The police caution or warning given to individuals embodies this aspect of voluntariness. The police caution informs an individual, in plain language, of their right to remain silent. The common form of the police caution given to individuals, as stated in Singh, supra at para. 31 is:
You are charged with… Do you wish to say anything in answer to the charge? You are not obliged to say anything but whatever you do say may be given in evidence.
[23] The purpose of the caution was explained in R. v. St. Germaine, 2014 NWTSC 52 at para. 17:
Page 5 The purpose of the caution is to make the person cautioned aware of the full implications of speaking to the police, which is an element of trial fairness. Without that awareness, whether it comes from the police or counsel, any statement obtained may be found not to have been truly voluntary. The presence of a caution is a factor in determining the voluntariness of a statement made by a person under arrest or detention and has been for over half a century: R. v. Singh, also referring to Boudreau v. The King, [1949] S.C.R. 262. In many cases, it is an important factor.
[24] In considering an alleged breach of the right to silence as part of a voluntariness hearing, the focus is on the conduct of the police and the effect on the accused’s ability to exercise his free will: Singh, supra at para. 36.
APPLICATION TO THIS CASE [25] As I have previously mentioned, the evidence in this case does not give rise to any concerns about the statement having been the result of threats, inducements, oppression, police trickery or that the accused did not have an operating mind.
[26] The issue is whether the accused was sufficiently informed of his right to remain silent and understood that he could choose not to speak with Cst. Robertson.
[27] Cst. Fogarty placed Mr. Carpenter under arrest for an incident in Tuktoyaktuk in a bedroom at a residence at 10 Tuma Drive in Inuvik. The accused was then escorted to the front door of the residence where Cst. Scarf advised the accused that he was under arrest and provided him with his rights. On the voir dire, Cst. Scarf testified as follows:
Q So tell the Court what happened that morning? A It’s, as I said we were tasked with attempting to locate Francis Carpenter. My partner Constable Fogarty and I attended 10 Tuma Drive in Inuvik. We were let into the residence by an older male and we spoke with Ms. Marlo Kasook. She initially said that Mr. Carpenter was not in the residence and then she walked away and kinda gestured for me to follow her at which point she told me that he was in the back bedroom. I told this to Constable Fogarty but we could not see him in the room. And I went to go and get Ms. Kasook again to get her to point out where he might be. At that time I heard Constable Fogarty tell Mr. Carpenter he was under arrest, I still couldn’t see him, and then he approached the furniture at the back of the bedroom and again said you’re under arrest for the matters in – for the matters out of Tuktoyaktuk. Mr. Carpenter was taken to the front door. He was handcuffed at that front door. I briefly just let him know that he was under arrest for matters out of Tuk and that he had the right to contact a lawyer, Legal Aid was available if he did want to call a lawyer, and also that he didn’t have to say anything to us.
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Q And what – did you ask him if he understood what you told him? A Yes. Q What did he say? A I don’t know his exact response. Q But what was your understanding? A My understanding was that he understood. (Underlining added) [28] The accused was taken to the R.C.M.P. detachment where Cst. Fogarty arrested the accused again and provided him with his rights from his Charter card:
A I have copy of the Charter card itself. And then I have his replies written in my notebook as he said them.
So at the time I did not have the list of charges from Tuktoyaktuk, all of the charges, so I went with what I knew off the top of my head. And I told him I am arresting you for aggravated sexual assault, sexual assault, forcible confinement, among other things. Do you – I said you have the right to retain and instruct a lawyer without delay. This means that before we proceed with our investigation, you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone and you can call a toll free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone book will be provided to you. If you are charged with an offence, you may apply to Legal Aid for assistance. And I said to him, do you understand, and he said yeah. And I said, do you want to call a free lawyer or any other lawyer? And he said yeah. And then 11:14 I read the police caution. You may be charged with aggravated sexual assault, sexual assault, forcible confinement, among other things. Do you wish to say anything? You are it not obliged to say anything unless you wish to do so but whatever you say may be given in evidence, and then I asked him, do you understand that? And he said yeah.
(Underlining added) [29] Mr. Carpenter was then given an opportunity to speak to counsel of his choice. He spoke privately with a lawyer for approximately ten minutes. He was then lodged in cells until Cst. Robertson came to take him to the interview room at approximately 11:43 p.m.
Page 7 [30] Cst. Robertson took an audio and videotaped statement from Mr. Carpenter. At the outset, Cst. Robertson re-arrested the accused and provided him with his rights:
C.R. (…) is just provide your Charter rights on again. Alright man. So Francis Carpenter you have been arrested with respect to Aggravated Assault, Sexual Assault Causing Bodily Harm um… on one count, Sexual Assault on one count, Assault on one count, Forcible Confinement on two counts and Breaching Probation on four counts for a total of ten charges.
F.C. Hunh. C.R. Okay? F.C. (No audible response) C.R. Do you understand that? F.C. Yeah C.R. Perfect. You have the right to obtain and consult counsel without delay. You can call any lawyer you want. There is a twenty-four hour legal aid number available. This advice is given without charge and a lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer I can provide you with a telephone number. Okay, do you understand that?
F.C. Yuh C.R. Do you want to contact a lawyer? F.C. I did this earlier C.R. You did earlier? F.C. Yeah C.R. Understand that? F.C. (No audible response) C.R. Okay. Do you want to call one again? F.C. No C.R. Alright F.C. (Sigh)
Page 8 C.R. Right now like I said you have been arrested with respect to Aggravated Assault, Sexual Assault Causing Bodily Harm, Sexual Assault, Assault, Forcible Confinement on two counts and Breaching Probation on four counts. You need not say anything. You have nothing to hope for any promise of favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence. Do you understand that?
F.C. Yeah C.R. What does that mean to you? F.C. Nothing C.R. It doesn’t mean anything to you? F.C. Nawh C.R. Okay, so I just wanted to make sure you understand like what’s happening and um… that ah… you… So you’ve been… so I’ve been explaining to you that you have been arrested with respect to all those things there. Um like… like if anybody has promised you anything, just tell me anything, any information about what happened um… over the past little while with this incident um… you know no promises will be granted. Okay. You shouldn’t feel afraid to talk to me like I’m just here to hear your side of the story. Um… so ah… you know you shouldn’t feel afraid. You don’t need to say anything to me, okay, but what you do say can be used as evidence in court.
(Underlining added) F.C. Yeah, right. [31] By the time, Cst. Robertson starts to take the statement from Mr. Carpenter, he has been advised of his right to remain silent informally by Cst. Scarf at 10 Tuma Drive, formally by Cst. Fogarty at the R.C.M.P. detachment and again by Cst. Robertson in the interview room. Each officer advised Mr. Carpenter that he had the right to remain silent. He is advised that he does not have to speak to the police and that anything he says can be used in evidence against him. Mr. Carpenter indicated to each officer that he understood his rights.
[32] Defence has argued that what Cst. Robertson told Mr. Carpenter when he explained the police caution in layman’s terms was confusing and would have resulted in the accused being confused about the purpose of the interview. While Cst. Robertson’s explanation of the police caution was not clear and did not fully explain the content of the policy caution in a comprehensible way, Cst. Robertson was clear at the conclusion of his explanation when he stated: “You don’t need to say anything to me, okay, but what you do say can be used as evidence in court.”
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[33] It is evident that Mr. Carpenter understands that he does not have to speak with the police or answer questions when he states in the interview:
F.C. I don’t know. I got nothing to say or… I don’t know. I’m not answering no questions about anything or everything but if you guys want to hear about my side of the story just… just take it to trial or go to court or whatever for that all I’m going to say I guess. [34] Mr. Carpenter goes on, in the interview, to repeatedly state that his version of events will emerge in court. He refuses to answer questions about the incidents that form the basis of the charges against him. In refusing to answer questions, he also refers to his lawyer telling him not to speak to the police:
F.C. Well my lawyer told me not to talk to you guys or anything so that’s what I’m trying to do. And you’re just trying to get words out of me. Just like I told you I’ll wait ‘til court.
[35] It is apparent that Mr. Carpenter understood that he had a choice to speak to the police and did not have to answer questions. It is also apparent that Mr. Carpenter was capable of remaining silent because he chose to answer some questions but repeatedly refused to answer any questions that related to the allegations. Cst. Robertson did nothing that affected Mr. Carpenter’s ability to make those choices. While he persisted in asking Mr. Carpenter to provide his version of events, Mr. Carpenter was equally persistent in exercising his right to remain silent and refusing to answer questions regarding the allegations.
[36] Overall, in all of the circumstances, Mr. Carpenter knew that he had the right to remain silent. In Mr. Carpenter’s interactions with Cst. Robertson, it is clear that he knew that he had a choice to speak to the police and that anything he said could be used in evidence against him.
[37] In considering the circumstances of the statement provided by Mr. Carpenter, I am satisfied beyond a reasonable doubt that the statement was taken in circumstances whether there were no threats or promises, there were no oppressive circumstances, the accused had an operating mind, there was no police trickery and the accused understood that he had the right to remain silent and that anything he said could be used in evidence against him.
[38] For these reasons, I conclude that Mr. Carpenter’s statement is voluntary.
S.H. Smallwood
Page 10 J.S.C. Dated in Yellowknife, NT, this th 20 day of May, 2016 Counsel for the Crown : Annie Piché Counsel for the Accused : Peter J. Harte
Docket: S-1-CR-2015-000078 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
BETWEEN: FRANCIS WILLIAM CARPENTER
THE HONOURABLE JUSTICE S.H. SMALLWOOD
HER MAJESTY THE QUEEN - and -
RULING ON VOIR DIRE