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Transcript of the Decision on the Voir Dire
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R v Hache, 2019 NWTSC 28 File # S-1-CR-2018-000006
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
-v-
DANIEL HACHE
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Transcript of the Decision on the Voir Dire of the Honourable Justice L.A. Charbonneau sitting in Yellowknife, in the Northwest Territories, on the 4th day of July, 2019.
________________________________________________________
APPEARANCES:
M. Fane: Counsel for the Crown
T. Boyd: Counsel for the Defence
M. Zemnicky Victim (By Teleconference)
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Charge(s) under s. 268 of the Criminal Code of Canada
I N D E X
PAGE
NONE
THE COURT: Daniel Hache was charged with aggravated assault following events that occurred on an island on Prelude Lake. A number of people were at a camp on this island on the night in question, including the victim of the offense, Mr. Zemnicky. Initially, this matter was to go to trial, and counsel sought a ruling on the admissibility of statements and utterances that Mr. Hache made at different times.
A short time after the conclusion of the evidence on the voir dire, because the trial was approaching, I advised counsel that I was ruling the statements admissible, and that I would file written reasons in due course. Some time after that counsel were able to come to a resolution of this matter, and Mr. Hache entered a guilty plea to a charge of assault causing bodily harm. At that point, sentencing was adjourned to allow for the preparation of a pre-sentence report.
Because Mr. Hache has pleaded guilty, there is less of a need for me to provide detailed reasons for my conclusions about the admissibility of his statements. However, because the circumstances of this case were rather unusual, counsel asked that I nonetheless provide reasons for my conclusions, and I have agreed to do so. These reasons will not be as detailed as they might otherwise have been, however.
First, dealing with the allegations and the statements at issue at the voir dire, it appeared undisputed at the time of the voir dire that during the night on that island, Mr. Hache had an altercation with Mr. Zemnicky and hit him on the head with an object. Mr. Hache quickly realised that Mr. Zemnicky was seriously hurt. He called the telephone number used to contact emergency responders, police, ambulance, the fire department in the Yellowknife area. Mr. Hache provided the operator information about where he was and how to get there. Police officers and paramedics made their way to the island. Mr. Zemnicky was attended to and transported to hospital. Mr. Hache was placed under arrest and escorted back to the RCMP detachment in Yellowknife.
The voir dire pertained to the admissibility of utterances Mr. Hache made that night and a formal statement that he gave the next day to the police officer. The first group of utterances were things that Mr. Hache said to the emergency dispatch telephone operator. The first call was made at around 2:00 a.m., and there were several conversations after that. All of them, except one, were initiated by Mr. Hache. The other one was a call placed to him by the operator. The main topic of conversation during those calls was Mr. Hache trying to explain where exactly they were and how the response team could get there. There was also information conveyed about Mr. Zemnicky's condition.
At certain points during those conversations, Mr. Hache recounted the events that led to the altercation with Mr. Zemnicky and described how he hit him on the head with an object. All those conversations were audio recorded.
The second set of utterances were things that Mr. Hache said to one of the officers shortly after they arrived at the island at around 3:30 a.m. Those utterances were not audio recorded and were not recorded word-for-word by the officer in his notes. The third statement was taken by Constable Hayward the next day while Mr. Hache was in custody at the Yellowknife RCMP detachment. That statement was video and audio recorded and took place after Mr. Hache had an opportunity to speak to a lawyer.
There was no Charter application in this case. The issue at the voir dire was strictly whether Crown had proven beyond a reasonable doubt that Mr. Hache's statement were made voluntarily.
The legal framework that governs the voluntariness analysis is well established and stems from the cases of R. v. Oickle, [2000] 2 S.C.R. 3 R. v. Singh, [2007] 3 S.C.R. 405 and R. v. Spencer, [2007] 1 S.C.R. 151. I summarised that framework in R. v. Blackduck, 2014 NWTSC 58, paragraph 50, and I will not repeat that summary here. The same basic framework applies.
A few points need to be noted at the outset. First, even though there were three groups of statements, the key issue for me to decide was the admissibility of the first two groups. This is because of fair concessions made by the parties. The Crown conceded that the officer who took the formal statement used the information gathered in the other utterances to obtain more details from Mr. Hache about what happened. The Crown conceded that if the earlier utterances were not admissible, the formal statement should be ruled inadmissible as well. For its part, Defence conceded that there were no voluntariness issues with respect to the third statement, if the first two sets of utterances were admissible. Given this, I will only deal with the issue of admissibility that arose with respect to the first two sets of utterances.
The second preliminary point I want to address is that, with respect to the utterances made to the emergency telephone operator, the Crown made a concession at the start of the voir dire that the operator was a person in authority. That, of course, is a condition precedent to the voluntariness framework to be engaged. Admissions by an accused to someone who is not a person in authority are generally admissible. My understanding was that Crown counsel made that concession, and that subsequent to that, certain cases came to his attention that perhaps caused him to revisit that view, but out of fairness, and because Defence had agreed, on the basis of the Crown's concession, that certain witnesses would not need to be called at the voir dire, Crown counsel did not resile from his concession.
In law, emergency call centre operators are not necessarily or automatically persons in authority. This issue was addressed in, among other cases, R. v. Butcher, 2018 NSSC 75 and R. v. Ziegler, 2016 ABQB 150. Given the Crown's concession, I have proceeded on the basis that the Crown did have to prove voluntariness of these utterances beyond a reasonable doubt in accordance with the Oickle and Singh framework. But on that point, because it could have been a live issue, my decision on this voir dire should not be treated as having any precedential value whatsoever.
The last preliminary point I want to address is that even in the absence of a Charter application, the authorities’ respect for a person's right to remain silent is not irrelevant. The overlap between the voluntariness analysis and the right to silence analysis was made very clear by the Supreme Court of Canada in Singh. In this case, however, the Defence's submissions at the conclusion of the voir dire were focused on Mr. Hache's mental state when he was on the island. Defence argued that, as a result of everything that had happened that night, he was not in the mental state needed to make voluntary statements. There was no suggestion that the police ignored his right to silence or tried to circumvent or defeat that right. On the evidence adduced at the voir dire, there would have been no basis to raise such an issue in any event. So under the circumstances, I will not in this ruling, talk about the principles that govern the interplay between voluntariness and the right to silence.
Dealing first with the admissibility of the utterances made to the emergency telephone operator, as I have mentioned, all the conversations were audio recorded. This, as far as assessing admissibility, is extremely helpful. Being able to hear the interactions between Mr. Hache and the operator is the best way to get a real feel for those exchanges. Listening to witnesses recounting conversations, even if it is done by honest people with fantastic memories, can never paint as clear or as compelling a picture of what happened, as having the benefit of listening to the conversations directly.
The Oickle framework requires the Court to examine various factors and engage in a contextual analysis to decide whether voluntariness has been proven beyond a reasonable doubt. The Court must examine whether the statement is a result of threats or promises, or the result of oppressive circumstances that prevented the accused from making an independent choice about speaking to police or remaining silent. The Court must also consider whether the accused had an operating mind at the time the statement was made, and whether the statement was obtained through police trickery that is so offensive that it would shock the community.
I am satisfied beyond a reasonable doubt that the utterances made by Mr. Hache to the emergency dispatch operator were voluntary for the following reasons.
First, Mr. Hache initiated almost all the calls. He chose to make the first call and several others after that. No one was forcing him. One can understand why he did and why he may have felt he had no choice but to call for help, but no one forced him to provide any details about his own involvement during those calls. The operator's focus was to understand where the injured person was and how to get to them.
Second, the operator never said anything that could be interpreted by anyone in my view to mean that, unless Mr. Hache provided a full account of events and of his involvement, help would not be sent. There was no quid pro quo at all during these interactions.
Third, throughout the calls, the main focus of questions asked by the operator were not to have Mr. Hache incriminate himself or assist the police in their investigation of the matter. Rather, it was to get him to explain where he was and how help could reach him. There were also questions about the victim's conditions, again with the view of supporting Mr. Hache's efforts to help him. Mr. Hache was not asked any questions about his involvement or responsibility for the injuries sustained by the victim. The details he gave to the operator were things that he volunteered. He did so unprompted and repeatedly.
Fourth, although Mr. Hache was obviously very upset on the calls, his ability to answer the questions of the operator demonstrates that he was aware of his surroundings, of what was happening, and of the gravity of the situation. He took steps to try to assist the victim, and was able to explain what he was trying to do and some of the obstacles he was encountering. At one point, during one of the calls, he intervened to stop the victim's girlfriend from doing things that he thought would make things worse. He was the one trying to calm her down. In difficult circumstances, he was able to provide sufficient information to the operator to convey to the officers where he was and how to get there.
Fifth, the testimony of the officers who went to the island and had contact with Mr. Hache is also relevant in assessing his state of mind in the preceding hour and a half while he was in contact with the operator. In particular, Constables Gossman and Raeside, who had the most dealings with him, described what they observed. They said he was coherent. He was not highly intoxicated. He was able to walk. He answered questions, and he spoke clearly.
I have carefully considered the evidence that Mr. Hache had, prior to this incident, spent some time in the cold lake water after the skidoo he was riding stalled. When police officers arrived on the island, Mr. Hache was still wet and appeared to be cold. One officer testified that he appeared to be “in shock” and “worn out”. I have also taken into account the tone of his voice at some point during the calls, where he appears to be quite panicked. I have taken into account as well the evidence that he had been consuming alcohol that evening and that some of the officers noted that he appeared somewhat intoxicated. One of the officers said he would have made a breathalyzer demand had he found Mr. Hache in this condition at the wheel of a vehicle.
But all those aspects of the evidence must be weighed in the context of the overall evidence and the things I've talked about already, as well as what the courts have said about what the concept of operating mind means in this context. At paragraph 63 in Oickle, the Supreme Court said, the concept of an operating mind does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to persons who can use it to his detriment.
In R. v. Whittle, [1994] 2 S.C.R. 914 the same Court said that the operating mind test asks whether the accused possessed a limited degree of cognitive ability to understand what he or she is saying and to comprehend that it could be used in proceedings against him.
On the whole of the evidence, that degree of understanding has been established. Accepting that Mr. Hache was under the influence of alcohol to some degree, that he was cold and that he was under considerable stress and was most probably worn out from the events of the night, the evidence does not suggest that he was in such a state of shock so as not to have an operating mind.
There is also no evidence of any threats or promises having been made to him, and there is no evidence of any police trickery.
Those are the reasons why I found those utterances admissible.
As for the utterances made to Constable Gossman, everything I said about what was said during the calls with the operator is relevant to the analysis of the voluntariness of those utterances. Again, nothing was done by him or any of the other officers that raises any issues from the point of view of voluntariness. For the same reasons that I concluded Mr. Hache had an operating mind when he was speaking on the telephone, I conclude he also had an operating mind when he was speaking to Constable Gossman. Mr. Hache made these utterances almost immediately after the officers set foot on the island. Constable Gossman did not elicit this information. Moreover, as soon as Mr. Hache started making these utterances, Constable Gossman asked him to stop talking, because he needed to advise him of his rights, but Mr. Hache continued to say things and to show him things.
The only real issue with respect to these utterances is whether the evidence is sufficient to establish that they were made and what their content was. This is because as I said, the utterances were not audio recorded, and the officer candidly acknowledged that he does not have verbatim notes of what Mr. Hache told him.
The fact that the utterances were neither audio recorded nor recorded verbatim is not fatal to their admissibility. But there needs to be a sufficient record of the interaction between Mr. Hache and the police to permit the voluntariness analysis. It is for the voir dire judge to assess whether that evidence is there. R. v. Moore-McFarlane, 56 OR. (3d) 737 at paragraph 65.
Given the circumstances, it is hardly surprising that the utterances were not audio recorded. It is also understandable that Constable Gossman was not able to write down the exact words that Mr. Hache told him or that he does not recall now the exact words that were used. But Constable Gossman testified that in substance, Mr. Hache told him that he had hit the victim, that he had done so to stop him from assaulting his girlfriend, that he hated having had to hit him, and that he had never hit anyone before. Mr. Hache also showed Constable Gossman where the event happened and the object that he used to hit the victim.
Constable Gossman was not challenged on cross-examination about his recollection of what Mr. Hache said. This is not a situation where there is any suggestion that the utterances were very detailed or intricate or gave rise to any ambiguity. It is also not a situation where the officer only recalls a few words that were said, and there could be a concern about an important detail or a word missing that would entirely change the nature and meaning of the utterance.
I am satisfied that the Crown has proven beyond a reasonable doubt that the utterances were made, and that the substance of those utterances was as described by Constable Gossman. There is also ample evidence about the circumstances when they were made and enough to help me assess their voluntariness. In this case, the lack of audio recording or verbatim notes does not raise a doubt in my mind about whether the utterances were made or about whether they were voluntary. I find that Mr. Hache said those things to Constable Gossman spontaneously of his own free will, and that they are admissible.
Finally, with respect to the formal statement given the next day to Constable Hayward, as I have said already, Defence conceded that if the first two sets of utterances were admissible, the formal statement taken the next day would be admissible as well. I agree.
These were my reasons for concluding some months ago that all of this evidence would be admissible at trial, had the trial proceeded.
(PROCEEDINGS ADJOURNED JULY 30, 2019)
Neesons, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability. Judicial amendments have been applied to this transcript.
Dated at the City of Toronto, in the Province of Ontario, this 6th day of August, 2019.
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Kim Neeson
Principal