Court File and Parties

Ontario Court of Justice

Date: 2020-10-05

Court File No.: Walkerton 18 960

Between:

Her Majesty the Queen

— and —

Kevin Holmberg

Reasons for Ruling on Voluntariness Voir Dire and Charter Applications

Before: Justice Brophy

Heard on: 10 and 17 January and 3, 5, 6 and 7 February 2020

Released on: 05 October 2020

Counsel:

• Andre Rajna, counsel for the Crown
• Douglas J. Spiller, counsel for the defendant Kevin Holmberg

BROPHY J.:

INTRODUCTION

[1] These reasons are with respect to interlocutory rulings made in this matter on 7 February, 2020. The Covid-19 pandemic brought the trial to a halt and now that the case has been rescheduled for continuation it is appropriate to provide reasons for the said rulings.

BACKGROUND

[2] Kevin Holmberg has been charged with impaired operation of a vessel and with operating that vessel when his blood alcohol concentration exceeded the legal limit contrary to section 253(1)(a) and (b) of the Criminal Code. It is alleged that these offences occurred on 4 August 2018 in the Town of Saugeen Shores in the County of Bruce.

[3] The investigation arose out of a complaint that the accused was erratically operating a powerboat in the Port Elgin harbour and briefly on Lake Huron and that while doing so he collided with other boats and struck a break wall. The police attended and after conducting a brief investigation arrested the accused for the offences described above.

PROCEDURAL HISTORY

[4] A Third-Party records Application was resolved on 4 November 2019 and was withdrawn.

[5] The case came on for trial in January of 2020. The defence brought a number of Charter Applications. It was agreed at the outset of the trial that the Charter Applications and the trial proper would proceed on a blended hearing basis with the Charter Applications being argued at the appropriate time.

[6] On 10 January 2020 an Application for a stay for delay under section 11(b) of the Charter of Rights and Freedoms was argued and dismissed.

[7] On that same day an Application for a stay based on lost evidence and a consequent breach of the Charter right to a fair trial was argued. The defence framed this in part as a continuing Stinchcombe argument with respect to disclosure. The defence sought an immediate stay prior to any evidence being received. That request was denied, and the Application was adjourned to the end of the trial evidence or at some otherwise appropriate time during the trial.

[8] Oral reasons were provided when the rulings were made.

[9] There was a further issue raised with respect to statements made by the accused and whether they were voluntary. A voir dire parallel to the Charter voir dire was entered into with respect to same.

[10] Counsel agreed that the evidence heard on the Charter Applications and voluntariness voir dires would be evidence in the trial proper subject to admissibility on the voluntariness voir dire and subject to potential exclusions on the Charter Applications. It was also understood that the evidence from the accused on the voir dires would only be used for the purposes of the voir dires and not for the trial proper. It was also the position of the Crown that in the event the statements in issue in the voluntariness voir dire were found to be voluntary the Crown would only use those statements for cross examination purposes in the trial proper.

[11] On 7 February 2020 the voluntariness issue and Charter Applications were argued. The court ruled that the statements made by the accused Kevin Holmberg were voluntary and could be received in evidence. Further the court dismissed the Charter Applications brought by the defence seeking to exclude the evidence pursuant to section 24(2) of the Charter and to stay the proceedings pursuant to section 24(1) thereof as a result of lost evidence.

[12] The reasons for those rulings are as follows.

VOLUNTARINESS – DUTY TO REPORT – COMPELLED STATEMENT – CHARTER - Section 7

[13] There are three sets of statements that are in question. The first is the comments made to the arresting officer, Laurel Hopkins of the Saugeen Shores Police Service, upon her first meeting with the accused on the dock, next are the statements made in the cruiser after arrest, and then the statements made to the breath technician Erik Luscombe in the breath room.

[14] The basic principle is that the Crown must prove beyond a reasonable doubt that statements made by the accused were voluntary.

[15] In this case the evidence is clear that the accused had an operating mind and that there was no police trickery involved in their interactions with him. There were no threats, inducements or promises made by the police. There is no evidence that the police conducted their inquiries in an oppressive manner. The police were polite and respectful in dealing with Mr. Holmberg. See R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.).

[16] That aspect of the inquiry has been proven by the Crown beyond a reasonable doubt.

[17] However, consideration must be given to whether Mr. Holmberg thought he was required to give a report of the incident to a person or entity. The defence styles this as a question of voluntariness coupled with a section 7 Charter issue in terms of the right not to incriminate oneself.

[18] The Canada Shipping Act, 2001 regulations require a person to make a report with respect to boating accidents under certain circumstances.[i] In other words, was he compelled to make a statement to the police pursuant to a regulatory requirement. If so, then the report would be a compelled statement and would not be voluntary. See R. v. White, [1999] 2 SCR 417 and R. v. Soules, 2011 ONCA 429, [2011] O.J. No. 2500

[19] The test in White is set out in paragraphs 75 and 76:

75 …. In my view, the test for compulsion under s. 61(1) of the Motor Vehicle Act is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given.

76 The requirement that the accident report be given on the basis of a subjective belief exists because compulsion, by definition, implies an absence of consent. If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's statements. The declarant would then be speaking to police on the basis of motivating factors other than s. 61 of the Motor Vehicle Act.

[20] The question is what honest and reasonably held subjective belief did Mr. Holmberg have that he was required to make a report? What did he do as a result of that belief? And is that why he spoke to the police?

[21] Mr. Holmberg's evidence was that he had taken a boating course previously and that as a result he knew there were obligations upon him in some circumstances to make a report. There is no evidence Mr. Holmberg knew of any specific facts that would meet the criteria for making a report, but his evidence was that he did not know the extent of any damage or whether anybody had been hurt and as a result he thought he needed to make a report.

[22] Mr. Holmberg was observed to have a conversation with the Harbour Master in his boat when the police approached. The evidence of the officers is they did not overhear that conversation. At some point Mr. Holmberg spoke to one of the officers and then was asked to come up on the dock.

[23] Throughout his interactions with the police Mr. Holmberg's focus was explaining how he was the hero of the day in that he had brought the boat under control and safely back to its dock. He thought that the police investigation would exonerate him. His comments to the police were both jocular and boastful. He was very talkative. He never once alluded to the fact that he was making a report because of the accident. It should be noted that there are no external facts that support his evidence that he thought he had to make a report. It is simply his word that is offered as to his state of mind.

[24] In cross examination he recognized that he had lied to the police when he said that he had not been drinking and he offered the explanation that he had been brought up to believe that it was customary and ordinary to deny to the police any alcohol consumption. Because of that belief he said that when he told the police that he had not been drinking he was in fact telling the truth. Mr. Holmberg did not seem to understand that the lie was in fact a lie and that he told the police a lie to escape responsibility for his actions. This inevitably creates concerns with his credibility and whether the same sophistry is in play in his evidence in this trial.

[25] Mr. Holmberg's forceful and voluble personality would have leant itself to speaking up about his duty to report if it had been on his mind. When he was speaking to the police he never indicated by word or action that he was making a report pursuant to his legal obligation to do so. In fact, he did not say anything to the police in the nature of a report. He was speaking to the police based on motivating factors that had nothing to do with his regulatory requirement to make a report. He was portraying himself as the saviour of the day and that as a result the police should leave him alone.

[26] Mr. Holmberg has the burden under the section 7 analysis of establishing on the balance of probabilities that he gave a report to the police because of an honest and reasonably held belief that he was required by law to report the accident to the person to whom the report was given. See R. v. Roberts, [2010] O.J. No. 2279 (O.C.A.), para 40. He has not satisfied that burden.

[27] In the court's view Mr. Holmberg is not a credible and reliable witness and his evidence as it relates to his belief that he was in the process of making a report to an appropriate authority is rejected. It is the court's conclusion that he did not think about it at the time. He had no honest subjective belief that he was making a report to the police pursuant to the regulations governing pleasure crafts involved in accidents. In that sense he was not compelled to speak to the police as a function of the regulation under the Canada Shipping Act, 2001.

[28] In sum, Mr. Holmberg has not satisfied the burden to establish a breach of section 7 of the Charter and the court is satisfied that the Crown has proved beyond a reasonable doubt that Mr. Holmberg's statements to the police were voluntary.

[29] The statements to the police are admitted into evidence in the trial proper.

CHARTER APPLICATIONS

Lost Evidence – Section 7

[30] The defence raised an issue related to lost evidence.

[31] After Mr. Holmberg was arrested, Sergeant David Butcher, who was present at the time of the arrest, returned to the Saugeen Shores Police Service's station at the same time as Officer Hopkins and Mr. Holmberg. He directed Officers Michael Cuillerier and Travis Wagner to re-attend the scene. Cuillerier was tasked with taking photographs and Wagner was to take statements from witnesses.

[32] Sergeant Butcher did not re-attend the scene. It should be noted that Sergeant Butcher was retiring approximately two weeks after the events in this case. He therefore did not make the arrest and he did not act as the breath technician, although he was qualified to do so.

[33] Officers Cuillerier and Wagner did in fact attend and Wagner took several statements, including an audio statement of Eric Holmberg, the son of the accused. He also became aware of a short video made by a witness, Mr. James Marshall, recording some of the operation of the Holmberg boat at the relevant time.

[34] There is evidence from the accused saying that he saw Officer Butcher hold his phone in such a way that he thought he was recording or videoing the scene on the dock at the time of the arrest. The son, Eric Holmberg, says something similar. He also says that Sergeant Butcher re-attended the scene and was one of the officers who took pictures and a statement from him.

[35] Officer Butcher says that he did not take any pictures or videos during his involvement and has never in his police career used his telephone to record an incident. Further he did not reattend the scene and he went off duty shortly after returning to the station.

[36] Eric Holmberg has some self disclosed disabilities relating to speech and writing. That was apparent when he was giving his evidence. It is difficult to know whether that extends into other areas of his intellect. He was trying to be honest in his evidence, but he was a confused witness, clearly misidentifying Officer Butcher, thinking that either Cuillerier or Wagner was him, and being uncertain as to what photographs were in fact taken. His evidence is that he did in fact give an audio statement to Officer Wagner and that numerous photos of his boat were taken by the Officers. He also had some discussion with the officers about the other boat that was struck, a Boston whaler type, although he did not see photos taken of that boat.

[37] Officers Cuillerier and Wagner say that Sergeant Butcher did not return to the scene with them and that they were the police officers who continued the investigation. Cuillerier did in fact take some photos of the Holmberg boat and Wagner took statements from Eric Holmberg and other witnesses. Unfortunately, the two officers failed after the fact to follow up on recording and securing the evidence they had gathered.

[38] Officer Wagner forgot about the video that Mr. Marshall had told him about and it was not until many months later when demands were being made for disclosure of items referred to in his notes that he realized he had failed to secure the video. Luckily Mr. Marshall still had it and it was then made available to the police and disclosed to the defence.

[39] Officer Cuillerier did not log the camera in and out in a proper manner and, most importantly, he did not download the photos he took and now they have been lost. In his evidence Cuillerier apologizes for his error and says that he is ashamed that it happened. He assured the court that he has since taken Scenes of Crime Officer training.

[40] The defence argues that the Crown has failed in its Stinchcombe disclosure obligations, principally with respect to the lost photos, but also because of the late disclosure of the Marshall video.

[41] The leading case with respect to lost evidence is R. v. La, [1997] 2 S.C.R. 680. That case sets out the basic principles in dealing with lost evidence issues.

[42] Paragraphs 20 begins the discussion. The salient part is:

20 … The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown's explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.

[43] In this case the police failed to preserve photos they took that might show some marks or damage related to the collision of the Holmberg boat with part of the marina and another boat. As the issue in the case is the operation of that boat, this was relevant information and having secured it the police should have preserved it. The Crown cannot say that the evidence was lost through force of circumstances. In fact, it was lost because of negligence on the part of Officer Cuillerier. This is not a case where there was an abuse of process. It arises out of a simple failure of system and process and memory. It was inadvertent. There was no malice involved.

[44] The late disclosure of the Marshall video does not impact upon the discussion with respect to the loss of the photographs. It is a separate issue. Although it does suggest that the Saugeen Shores Police Service may wish to, if it hasn't already, re-examine its supervision of constables as it relates to evidence gathering and follow up.

[45] The key question is what the effect of the loss of the photographic evidence was.

[46] Paragraph 25 of La states that:

"… in order to make out a breach of s. 7 on the ground of lost evidence, the accused must establish actual prejudice to his or her right to make full answer and defence."

[47] Here the defence always remained in possession of the boat and they were at liberty to take any photographs thought relevant. They did not do, then or later. Repairs were made to the controls that Mr. Holmberg says caused the problems in operating the boat and they left the Port Elgin harbour the next day without difficulty.

[48] It is difficult to conceptualize what assistance the lost photographs would have been to Mr. Holmberg in making full answer and defence. At best they would show the state of his boat after the incident. That condition continued and was available to Mr. Holmberg upon his release from custody. He would not gain any information from the lost photographs that was not otherwise available to him. Although the photographs were relevant in that they were of the boat following the events in question, the absence of those photographs did not prejudice Mr. Holmberg. The information was still there before his very eyes.

[49] Accordingly, although the Saugeen Shores Police Service in this specific regard did not cover itself in glory, nonetheless the defence has not established a breach of section 7 on the ground of lost evidence. The mistakes of Officer Cuillerier did not cause any prejudice to the ability of Mr. Holmberg to make full answer and defence.

Reasonable and Probable Grounds to Arrest - Section 8 & 9

[50] The Crown has the burden to prove that reasonable and probable grounds to arrest exist.

[51] In this case the arresting officer had received information about the erratic operation of a vessel. She was advised by Eric Holmberg that his father Kevin Holmberg had operated the boat. She was also told by the accused directly that he had operated the vessel. She saw in a container on the boat a number of beer cans. She observed Kevin Holmberg to have an odour of alcohol on his breath, to be slurring his words and swaying, and to have his genitalia exposed without any recognition of that fact. Based upon these factors she formed an opinion that there were reasonable and probable grounds to believe that Kevin Holmberg had been operating this vessel while impaired by alcohol.

[52] An arresting officer must have both subjective and objective grounds to believe that an offence had occurred. Clearly Officer Hopkins subjectively believed that the offence occurred. It is also clear that there were sufficient objective facts available to her to support that belief. It is important to note that the standard is not proof beyond a reasonable doubt but rather reasonable and probable grounds to believe.

[53] In this case the evidence of Officer Hopkins was consistent both internally and externally and untouched in cross-examination. In the court's view Officer Hopkins had the appropriate reasonable probable grounds to make the arrest. There is no breach of Charter sections 8 and 9.

Informed as to the Reason for the Arrest – Section 10(a)

[54] The court accepts the evidence of Officer Hopkins that she informed Mr. Holmberg at the earliest opportunity that he was arrested for impaired operation of this vessel. The evidence is clear in that regard. The defence has not met the burden to establish a breach.

Right to Counsel – Section 10(b)

[55] Mr. Holmberg was read his rights to counsel by Officer Hopkins in the cruiser immediately after his arrest. It is noted that he was immediately removed from the scene of the arrest and taken to the cruiser a short distance away for officer safety reasons where he was read his rights to counsel. There is nothing incorrect about that decision by Officer Hopkins. In the cruiser the rights to counsel were read in the ordinary manner from the appropriate card and Mr. Holmberg expressed the view that he did not wish to speak to counsel.

[56] Mr. Holmberg was then taken to the Saugeen Shores Police Station where he was again asked if he wished to speak to counsel and he said no. Finally, before the breath samples were taken Officer Luscombe, the breath technician, once again formally read the rights to counsel. In the last iteration Mr. Holmberg said he did not wish to speak to counsel, but with a variation that he did not wish to speak to counsel "at this time".

[57] Although the defence raises various complaints about the way in which rights to counsel were provided, none of them amount to anything of substance. The only question that really needs to be addressed is whether Mr. Holmberg stating that he did not wish to speak to counsel "at this time" imposed some duty upon the police to take some other actions related to the provision of counsel.

[58] In the court's view that was not the case. Mr. Holmberg had on at least three occasions said he did not wish to speak to a lawyer. His statement "not at this time" was immediately before the provision of the breath samples and Mr. Holmberg simply was emphasizing that he did not wish to speak to counsel while this process was underway. Mr. Holmberg continued to express the view throughout that the police investigation would exonerate him and he wanted it completed.

[59] It is noted that there is a requirement for persons who wish to speak to counsel to take some positive steps towards that goal. The police are required to provide information about the right to counsel and then provide the opportunity and means to contact counsel if they wish to do so. But the subject of the investigation must act. Here Mr. Holmberg chose not to seek advice from counsel. He expressed no desire to do so. He was provided with opportunities to request counsel and said no on every occasion. He cannot now complain that his right to counsel was not offered. He cannot say that the police would not have been effective in providing him with counsel, when he never asked them for counsel in the first place.

[60] The defence has not established a breach of Section 10(b) of the Charter.

CONCLUSION

[61] These are the reasons for the rulings made on 7 February 2020.

[62] It should be noted that the comments herein on the evidence is for the purpose of these rulings only. The evidence at large remains to be considered with respect to all the issues. Further, the court reserves the right to expand upon these reasons at the conclusion of the trial.

Released: October 5, 2020

Signed: Justice Brophy

Footnote

[i] The relevant legislation is under the Canada Shipping Act, 2001 (2001, c. 26, as amended). Under Small Vessel Regulation, SOR/2010 – 91, part 11, there is a requirement to complete an accident report and submit it to the Minister within 14 days after the day of the accident. There are criteria that trigger the duty to report. They include an injury to a person who requires medical treatment beyond first aid but not admittance to a hospital or with property damage estimated at more than $2,500.00. In addition, if a pleasure craft is involved in an accident resulting in a fatality, or there is injury to a person that requires admissions to hospital, or property damage estimated at more than $5,000.00, then the operator of that craft shall report the accident to the local police as soon as possible.