Recently, AVFM has published a piece concerning the story of Aaron Joseph Harms (The Meat Grinder Edmonton Style — The Joseph Harms Story) — a man seemingly being persecuted by the Royal Canadian Mounted Police (RCMP) and the Edmonton Police Force over alleged sexual abuse committed against an Angel Roberts, a proven liar, having confessed to lying three times while under oath in court. Multiple false allegations against several people and no repercussions, except for her victims. It’s all there in the court transcripts, but there’s another layer of stink in this sordid little horror story far more sinister than the conniving behaviour of a psychopathic little princess. It’s the officers involved. Mainly: Constable Colin Leo Folk.
Now there is an interesting sample Mr. Harms has provided, when his lawyer asks Constable Colin Leo Folk if he was ever the subject of any disciplinary action or ever been accused and or brought in front of the RCMP review board…
MISS HAYES: Now, in you were the subject of some disciplinary proceedings with the police; that’s correct? There was an investigation into your conduct?
CONSTABLE LEO FOLK: I’m sorry, regarding?
MISS HAYES: My recollection is that it may have had something to do with a tasering incident?
CONSTABLE LEO FOLK: Yes, I believe in 2009.
MISS HAYES: And so as a result of that was there any findings made by the disciplinary board?
CONSTABLE LEO FOLK: I’m sorry. Just so that we’re clear, can you shed more light on the incident?
MISS HAYES: Pardon me?
CONSTABLE LEO FOLK: Which incident was this that I was —
MISS HAYES: I guess I should clarify. Has there been more than one incident where you’ve been involved in disciplinary proceedings?
CONSTABLE LEO FOLK: I have been the subject of complaint on two different incidents, yes.
MISS HAYES: Can you advise us as to what those two occasions are.
CONSTABLE LEO FOLK: One of the incidents was an incident that happened at the multiplex in Athabasca where I deployed pepper spray on a crowd of people. That was one. It went to the review board and a use of force — an RCMP use of force, they investigated that and found that I was more than justified in that. And then I was — I’m sorry. I don’t recall the tasering incident you speak of.
MISS HAYES: Okay. Well, then what — when you said there’s a second one, sorry. If it’s not the tasering one, then what’s the second one?
CONSTABLE LEO FOLK: There was one where I was involved in taking an individual down to the ground as a result of a police chase that ensued and he made a complaint that I used excessive force, and that also was clear to the board that it was acceptable force.
MISS HAYES: Just give me one second. I might be able to give you some details that will refresh your memory.
I will leave my questions at that, Officer. Thank you for your time today.
CONSTABLE LEO FOLK: Thank you.
The most interesting part of Leo Folk’s testimony, for me, was dubious claims that Mr. Harms was blurting out that he was a child molester. It just didn’t make sense, and he sounded like a complete idiot on the stand. Look closely as he makes out like Mr. Harms was confessing in the third person:
MISS HAYES: Now, when he makes a comment, “he” being Mr. Harms, to Constable McDonald, I believe you said something to the effect of, Larry, why didn’t you just say you would kick that child molester — or kick the child molester’s ass, did it occur to you that he could be referring to someone else?
CONSTABLE LEO FOLK: Hey may have, yeah.
MISS HAYES: He may have been referring to someone else? Because certainly it would be odd to refer to yourself in third person?
CONSTABLE LEO FOLK: Yes.
MISS HAYES: And he didn’t do that at any other point in the investigation?
CONSTABLE LEO FOLK: I don’t know how. . .
MISS HAYES: I apologize. Normally in the admissions, I did this, I did that, not speaking about himself as if he’s another person. That’s fair; right?
CONSTABLE LEO FOLK: Yes, yeah.
MISS HAYES: So on this one incident you’d agree, as you have already, that it’s possible he’s speaking about someone else?
CONSTABLE LEO FOLK: He’s labelling somebody in his statement a child molester, yes.
MISS HAYES: And this is one of those ones that it’s just difficult to tell because we don’t have any context for it; right? Because you remember the statement, but you don’t remember what was said around it?
CONSTABLE LEO FOLK: Right.
The amount of bullshit emanating from this officer’s statements is just putrid. He excluded/avoided writing down exculpatory statements and wrote down a response without recording the context of the conversation leading to that statement. Another officer present only recorded the exculpatory statement as being of interest so the context of the other statement was obviously innocuous to the charges.
The whole thing just stinks. First of all, we have Folk enter the home without announcing himself as the police. He claimed Angel was home alone yet all others present, including Angel testify that her mother was home. Folk then elaborates to say Samantha arrived while he was talking to Angel. This is obvious fabrication and therefore perjury.
CONSTABLE LEO FOLK: I attended the residence. Went to the front door. Knocked on the door. The door — the inside door was open; the screen door was closed.
MS. JOYCE: How long does it take you to get from wherever the call comes to get to this
CONSTABLE LEO FOLK: I was in town when the call came in. I think I was about four or five blocks away, so a matter of maybe less than five minutes.
MS. JOYCE: Did anyone else from the RCMP attend with you to this residence?
CONSTABLE LEO FOLK: Later on there was another member who attended, yes.
MS. JOYCE: Describe the residence as you first approach it?
CONSTABLE LEO FOLK: It’s a house. The front door, you go up a set of stairs. The main door to the house faced south. You go inside the house, there’s an open area, a foyer area there, and then from there you go into the living room area of the house.
MS. JOYCE: Did you have any information or any, I guess, suspicion of who you would find within that house?
CONSTABLE LEO FOLK: Yeah, I believe the house to be — Angel Roberts resides there.
MS. JOYCE: And what did you know about her involvement in this investigation when you first attended?
CONSTABLE LEO FOLK: Regarding this investigation?
MS. JOYCE: Yes.
CONSTABLE LEO FOLK: Nothing.
MS. JOYCE: Continue on with what happens when you arrive at the door?
CONSTABLE LEO FOLK: I got to the door. I knocked on the door. There was no answer on the door. I could hear a female inside crying. I walked into the residence, saw her, Angel Roberts, crying hysterically on the couch. Went in to talk to her to find out what was going on.
MS. JOYCE: Was there anyone else with her at the time?
CONSTABLE LEO FOLK: No, it was just her.
In Angel and her mother’s original statement — and his field book — they all say that she wasn’t alone. She was with her mother.
MS. JOYCE: And did you know her or recognize her when you saw her at this point?
CONSTABLE LEO FOLK: I did, yeah. I know who she is.
MS. JOYCE: What happens from there?
CONSTABLE LEO FOLK: I went and talked to her. At first she wasn’t too forthcoming with any information. She was pretty upset and crying. I talked to her for probably a minute to two minutes, and then she advised me that her stepdad, Mr. Harms, had — had molested her.
MS. JOYCE: Did — what words did she use?
CONSTABLE LEO FOLK: I have to check with my notebook.
MS. JOYCE: Do you have that notebook with you today?
CONSTABLE LEO FOLK: I do, yes.
MS. JOYCE: And are there — have there been any additions or deletions to those notes since you made them?
CONSTABLE LEO FOLK: No.
MS. JOYCE: They’re in your own handwriting?
CONSTABLE LEO FOLK: Yes.
MS. JOYCE: And did you make them at or near the time of this investigation?
CONSTABLE LEO FOLK: I did, yes.
THE COURT: I’m going to ask if you can allow — be allowed to refer to —
MS. HAYES: No objection, sir.
THE COURT: Thank you. Please do, yes.
CONSTABLE LEO FOLK: Angel stated that her dad had got mad, grabbed her by the face, threw her on the bed, and put his hands down her pants.
MS. JOYCE: What happens after you get that information?
CONSTABLE LEO FOLK: As I’m talking to Angel about this, her mother, Samantha Roberts, came home and walked through the door. Samantha asked what was going on. Angel was still very hysterical and crying, so I explained to Samantha what Angel had told me happened, and then asked Samantha and Angel where Mr. Harms was. And again, it was really hard to get any information other than what I said that Angel had told me she was very hysterical, crying, very upset. Samantha went downstairs and came up and told me that Mr. Harms was downstairs in the basement.
MS. JOYCE: What did you do after getting that information?
CONSTABLE LEO FOLK: I went downstairs to talk to Mr. Harms.
MS. JOYCE: So if you can describe the setup of how, in this residence, you get downstairs to the basement?
CONSTABLE LEO FOLK: There’s the living room area, and then you go through the living room area into the kitchen area. At the back of the kitchen area there’s — to your right there’s a set of three or four stairs that go down and then it turns into the basement and goes down, I’m guessing another ten steps to the basement.
MS. JOYCE: What was going through your mind after you hear the information from Angel of an allegation and then find — or hear the information from Samantha of where the accused is?
CONSTABLE LEO FOLK: I didn’t — I didn’t know why Mr. Harms was downstairs. I thought I had to go down and talk to him.
MS. JOYCE: So what happens after — after you come to that determination?
CONSTABLE LEO FOLK: I started down the stairs. I went down the initial three or four steps, looked around the corner, and I observed Mr. Harms sitting on a couch kind of in the middle of the basement. He was hunched forward, sitting in the middle of the couch in his —
THE COURT: I’m sorry. I didn’t understand —
MS. HAYES: Sorry, officer, I don’t mean to interrupt here. I just wanted to interrupt because I note that the officer is reading from his notes, and I’m quite content to have him rely on his notes to refresh his memory. I’d just like it to be clear on the record when he’s in fact speaking from memory and when he’s relying on his notes to refresh his memory.
Such clarity turned into relying on notes. In fact, in Folk’s notes, none of this is mentioned about the layout of Mr. Harms’ home, the number of stairs, 45 degree turns… so if this is not in his notes or reports, could this be Mr. Folk’s selective memory at work?
CONSTABLE LEO FOLK: I looked around the corner and saw Mr. Harms sitting on a couch slouched forward. I observed a can of beer in his left hand and a black handgun in his right hand.MS. JOYCE: What did you do after you saw that?
CONSTABLE LEO FOLK: I instructed Mr. Harms to drop the firearm. I’m just referring to my notes.
MS. JOYCE: Yes.
CONSTABLE LEO FOLK: I instructed Mr. Harms to drop the firearm. He replied to me, don’t come down here. I stated again to Mr. Harms to drop the gun and he replied that it was a BB gun and placed it at his feet. I asked him to throw it further away from him, and he picked it up or actually — I’m sorry. I asked him to kick it away from him. He picked it up again and threw it into the corner of the basement.
MS. JOYCE: When you first go down the initial couple — three steps or so, so not the full set of steps into the basement, had you done anything with any of the items on your utility belt?
CONSTABLE LEO FOLK: Yeah, I had — I had drawn my side arm.
MS. JOYCE: So at what point did you make the decision to do that?
CONSTABLE LEO FOLK: As soon as I observed Mr. Harms had a firearm in his hand.
MS. JOYCE: And, sorry, that — I might have been unclear in my question. I was talking about before you get to that point where you can see Mr. Harms, where you’re just coming down the first couple of steps, had you done anything at that point with your — anything on your utility belt?
CONSTABLE LEO FOLK: I had not, no.
MS. JOYCE: When you draw your side arm, how did you hold it?
CONSTABLE LEO FOLK: I held it in my right hand.
MS. JOYCE: And where would you have been pointing it or aiming it?
CONSTABLE LEO FOLK: The entire time I had it pointed at the ground. The location of where I was, it was a very thick, solid concrete wall that I was looking around. I wasn’t in a really good position to — at that time to be pointing my side arm at Mr. Harms. I felt from where I was that I was in a safe position to instruct him to drop the firearm.
MS. JOYCE: How was he holding the firearm when he first — sorry. And I’ll say Mr. Harms. How was Mr. Harms holding the firearm when you first saw him?
CONSTABLE LEO FOLK: When I first came around the corner, Mr. Harms had it in his right hand and he had it just draped over his leg in front of him.< MS. JOYCE: Okay. Did that change at any point? CONSTABLE LEO FOLK: Yes. When I asked him to drop it, he began waving it around and then he said, don’t come down here. MS. HAYES: Sorry. I missed the last part of your answer. CONSTABLE LEO FOLK: He was waving the gun around and said, don’t come down here. MS. JOYCE: What kind of, I guess, tone of voice or behaviour was Mr. Harms showing when he says, don’t come down here? CONSTABLE LEO FOLK: I could tell Mr. Harms was extremely agitated and upset. MS. JOYCE: What happens after Mr. Harms throws the gun -- or sorry. You called it a firearm and I’ll call it a firearm, and I think the Court will hear eventually that it is a BB gun, but what happens after Mr. Harms throws the firearm? CONSTABLE LEO FOLK: Well, Mr. Harms actually stated to me that it was a BB gun at that time when he threw it. So I holstered my side arm and came down the rest of the way down the stairs and positioned myself between Mr. Harms and the -- and the firearm. MS. JOYCE: So then about how far away from you are Mr. Harms -- yes. How far away are you from each other? CONSTABLE LEO FOLK: Originally Mr. Harms was sitting on the couch and I positioned myself on the couch as well to the right of Mr. Harms about 2 and a half, 3 feet.
So he has grounds to charge, but doesn’t. Instead he holsters his weapon and sits down beside an alleged rapist without securing the weapon? This is an officer with 6.5 years of experience and he lets his guard down because a drunk suspect assured him it was just a BB gun. That seems pretty illogical to me. The rest of Mr. Folk’s testimony was laughable with Mr. Folk going back and forth between his selective memory and his notes. The BB gun wasn’t even entered into evidence. Mr. Folk would then go on to claim that he was sitting there between Mr. Folk and the firearm in a state of fear. So what, he’s just sitting there staring at it as if it were a cobra? He had every opportunity to secure it, but chose not to. Instead, engage in what he called “small talk” with the suspect.
There’s so much more, but I’m going to skip right to the Judge’s final comments about Folk’s credibility:
Ruling (Voir Dire)
THE COURT: Goodmorning. Please be seated.
I apologize for keeping you waiting, and I apologize in advance for what are likely overly long reasons. As they say, if I had more time, I would make it shorter.
So here are my reasons on the voir dire, which, of course, was held at the outset of this five-day jury trial and calls on me to decide if certain statements are admissible, either on the basis of voluntariness or alternatively on the basis they do or don’t comply with the Charter right to counsel, or alternatively to that, if they don’t, whether they should nevertheless be admitted under Section 24(2) of the Charter. On the evidence that I heard yesterday, I find the following facts.
Of course the events regarding these statements occurred on May 21, 2011, in the town of Athabasca. Constable Folk responded to what I gather was the Harms’/Roberts’ residence in Athabasca after he became aware of a 911 call relayed to him via the telecom service, that call being from a hysterical female person stating she had been molested and thereafter the phone being hung up. That call came in around 1724. I’m going to refer to the 24-hour clock as I go through my reasons.
Constable Folk responded accordingly. He was already on the road, and he managed to get to the, what I’ll call the Harms’ residence, about five minutes after the call came to his attention. He initially dealt with Angel Roberts. He had had previous dealings with Angel as well as with Mr. Harms. Though she was still hysterical, within a couple of minutes Constable Folk was able to glean from her that she alleged her stepfather, Mr. Harms, had threw her down on a bed and molested her by putting his hands down her pants.
Constable Folk testified, and I accepted, he made some effort to try to understand more fully what she alleged, but didn’t get very far. He, therefore — I’m sorry. Before he had any contact with Mr. Harms, Samantha Roberts came into the residence. All that she added to the voir dire evidence is that she located Mr. Harms in the basement, told Constable Folk that’s where he was, and that led then Constable Folk to having an encounter with him.
Constable Folk decided he — or concluded he needed to go downstairs to talk to Mr. Harms. As he descended into the basement, he noted Mr. Harms sitting on a couch with a handgun in his right hand, or what he believed to be a handgun. Constable Folk ordered Harms to drop the gun. He testified, and I accept, that rather than do so, Harms began waving the gun around, stating, Don’t come down here, or words to that effect. He described Harms as being extremely agitated and upset. In answer to Harms’ response of, Don’t come down here, Constable Folk repeated his demand that the weapon be put down, or words to that effect. This time Harms did comply and noted that — said, again, words to the effect that, in fact, the gun was a BB gun. I accept on the evidence — I haven’t seen this gun, but I certainly accept Constable Folk’s evidence that the gun looked real, that he had an apprehension that it was real. There was no way that he would know during any of his dealings in the basement with Mr. Harms that, in fact, it wasn’t a real gun, that it was only a BB gun, or perhaps even some other kind of replica gun.
In any event, Harms did put the gun down at his feet, and then later, momentarily later, on a, I gather, further demand from Constable Folk, he threw it or kicked it further away.
In any event, it was described as being several feet — ten, 15 feet or so — away from where Harms remained sitting. Folk then approached Harms.As I mentioned in argument, or during argument yesterday, I found that while Constable Folk appeared to hesitate in examination-in-chief to say what he knew — or what he knew at least subjectively when he went into the basement after speaking with Angel, I find that in cross-examination he admitted that at least at that point in time as he’s entering the basement and particularly when he sees what he believed to be a gun in Mr. Harms’ possession, at least at that point in time he knew that he had reasonable and probable grounds to arrest Mr. Harms at least for a gun offence, if not for a sexual assault on the basis of what he had taken from Angel in his brief dealings with her upstairs.
I also agree with the Crown’s position that nothing turns on Constable Folk’s drawing of his side arm as there was no evidence Mr. Harms even saw it nor is there any evidence in the voir dire really that Constable Folk or any of the other investigating officers did anything to threaten Mr. Harms or make any promises or inducements or anything of that nature that goes to that aspect of the issue of voluntariness, and in argument very little moment — there was very little on the, what I’ll call the usual aspect of voluntariness objected to by the defence.
Notwithstanding he had grounds for an arrest for something, Constable Folk decided not to arrest Harms at the moment he entered the basement, or even at the moment the gun had been kicked off into the corner or somewhere else in the room. And Harms — rather, Constable Folk is standing, either he’s sitting down on the couch with Mr. Harms or he’s standing a few feet away from Mr. Harms — his evidence was a little bit, I found, confusing in that regard. He gave two different, if I can put it this way, stories at different points in his evidence about whether he had further dealings with Mr. Harms while sitting on the couch next to him or standing next to him or close to him.In any event, whether he’s standing or sitting, at least by then Constable Folk, it was clear in his own evidence, he had grounds to arrest — certainly he had detained Mr. Harms. He had grounds to arrest him at least for a gun offence, if not a sexual offence. He did not, of course, provide him with any Charter warnings or the right to silence, right against self-incrimination warnings at that time. He gave as his excuse or reason officer safety.
He indicated in his evidence that he did — he wished not to inflame an already volatile situation. He was in a basement with only one exit. He was alone. He was apprehensive about the existence of a gun. Even though it was off out of reach, I take it that he was concerned that it was still in — and I don’t intend this to be a pun — it was still in harm’s way. And I give Constable Folk every benefit of the doubt on those points.
He also described Mr. Harms as being intoxicated, although not to the extent Mr. Harms, in Constable Folk’s estimation, didn’t know what was going on. And I find on all of the evidence, for what it’s worth, while there was some evidence going to the consumption of alcohol, little evidence, little acceptable, credible evidence going to the extent of how that consumption resulted in actual impairment or intoxication. The evidence, particularly from Constable Folk, at that point in time was of red, glassy eyes, slurred speech, and the presence of a beer can, little else. The only other evidence was that of Constable McDonald, as I recall, where he walked into the room and smelled alcohol on Mr. Harms’ breath. That evidence didn’t come from Constable Folk. In any event, there was obviously evidence of consumption, not much detailed evidence to go to whether, in fact, Mr. Harms was intoxicated. Lots of evidence, though, that Mr. Harms was, as Constable Folk put it, up and down in terms of his behaviour, demeanour, and that was something he took into account as well in terms of the volatility — what he understood to be the volatility of the situation.
Having decided not to make an arrest at that point in time, there is no doubt on the evidence, that Constable Folk had decided to detain Mr. Harms pending the arrival of backup in the form of Constable Dozois for assistance. In these circumstances then, Constable Folk decided — at some point, I’m not absolutely sure, he decided to reholster his weapon. I’m inferring from all of these circumstances that took place after he was convinced — or unless I’ve missed this aspect of the evidence — after he became convinced that the gun had, in fact — the handgun that Mr. Harms had been in possession of had been kicked off or thrown off somewhere else into the room, at some point Constable Folk then reholstered his weapon. And he said he did so because he felt that would actually assist him in being able to deal with any unforeseen circumstance. He didn’t want to be tied up with a gun in one hand if he needed to do something to deal with the situation that Mr. Harms presented.
In any event, having reholstered his weapon, having either moved into the room to stand next to Mr. Harms or, indeed, perhaps having sat down next to him on the couch, and having made a conscious decision not to inform him that he was under arrest, or for that matter that he was detained, and for sure not having informed him of any of his constitutional rights or rights against self-incrimination, fatally Constable Folk then decided to question the accused. There is no officer safety basis for his action in deciding to question the accused.
In cross-examination defence counsel elicited from Constable Folk the common sense — or asked him the common sense question: If you were trying to diffuse an otherwise volatile situation, why would you then start asking an accused about the thing which presumably had created the volatile situation in the first place, in other words, why would you start questioning him about the alleged sexual offence. I appreciate the question that he asked was a very general one, what’s going on or words to that effect, but I conclude that the question was meant to elicit information, potentially at least incriminating, going to the investigation which Constable Folk had initiated upstairs before he entered the basement. It was clearly an inappropriate police response without any justification. The proper police response would have been to continue in good faith to attempt to maintain or diffuse a potentially volatile situation pending backup from Constable Dozois, but to then go on and begin questioning, even in a brief general matter, in the circumstances here is conduct which, as will become more apparent, I find to be objectionable.
Of course, the evidence is that immediately upon being asked the question, What’s going on, Harms responded by stating words to the effect that he stripped her naked, referring presumably to Angel, to teach her a lesson because she’s a whore. That statement, of course, it’s conceded in argument, was in breach of Harms’ Section 10(b) Charter rights.
The voluntariness of the statement is not much in issue, but that doesn’t matter in my view because as a matter of concession the statement is clearly inadmissible.
While I found on Constable Folk’s own evidence that even before the statement he believed he likely had grounds to make an arrest, either for sexual assault, but clearly for the gun offence, he had those grounds at least subjectively in his mind when he elicited — when he asked the question and elicited the statement.
I’m just editing on the go here, Counsel. I don’t want to be unnecessarily repetitive.
I’m referring to — or I was struck, frankly, by Constable Dozois evidence that when he entered the basement at around some point before 1825 — Constable Dozois talked — used the timing of 1825 as when he, I believe, seized the gun in the basement. That’s what I took from his evidence. He was, therefore, in the basement at some moments before that, entered the basement, saw the two individuals sitting on the couch, concluded they were, in fact, talking about the investigation. I’m not sure I can give a whole lot of credence to that because even on Constable Folk’s evidence they were talking about some prior difficulties in the relationship Mr. Harms had with Angel. That wasn’t given with any — in any detail in the voir dire, so I can understand why Constable Dozois might have misunderstood just exactly what was going on at that moment. But what struck me was his evidence, Dozois’ evidence, that he then heard Mr. Harms make an admission with regard to the more immediate or the more — that day’s alleged offence, and it was then Constable Dozois who immediately intervened to arrest Mr. Harms. That is not really even close to what Constable Folk testified to. Folk, of course, testified that it was only in answer to his general question that elicited the remark about stripping her naked, and after that there was nothing else said that — in the conversation between he and Mr. Harms that went to the day’s events, rather, they were speaking about prior — a prior context. And, of course, it was Constable Folk’s evidence that while Constable Dozois was present when Constable Folk arrested Mr. Harms that he was only there to assist.
Constable Folk was clear that he arrested — he being Folk — arrested Harms, handcuffed him, and took him upstairs.
I am unable to reconcile the evidence. I found, frankly, Corporal Dozois to be a generally credible officer. I found Constable Folk to have some difficult — I had difficulties with his credibility, at least in this case.
Constable Folk, again to expand on the evidence that he gave in combination with the evidence of Constable Dozois — Corporal Dozois, Folk testified that he Chartered and cautioned Mr. Harms outside of the residence, either near the vehicle, his police vehicle, or in it, not later than 1824. There is mention of 1818 and a caution — a Charter and caution. It wasn’t absolutely clear to me when those two warnings were given, but I conclude on the evidence that they had been given to Mr. Harms not later than 1824.
Constable Folk said nothing about Corporal Dozois coming outside and instructing him to Charter and caution Mr. Harms. I find on the evidence that at every turn Mr. Harms indicated he did wish to speak to a lawyer. I appreciate that when finally given the chance to use a phone in a phone room at the detachment, he was perhaps less than diligent in exercising the right. The evidence wasn’t fully explored in that regard because it wasn’t particularly relevant. That wasn’t the basis of the alleged Charter breach.
I find that on the evidence that Mr. Harms did refuse to waive his right when he was asked if that was his preference, and even much later he refused — in the context of refusing to provide a warned statement, he again asserted that he wished to speak with a lawyer.
Going back to what occurred at the scene, Constable Folk handcuffed Harms and escorted him to the vehicle where, as I say, Charter rights and a caution was read. I do not accept the implication in Constable Folk’s initial evidence-in-chief that at or near this early point in time he was following Corporal Dozois instruction to keep Harms handcuffed owing to the need to preserve DNA evidence, nor do I accept that immediately after arriving at the detachment, Constable Folk knew or was informed he needed then to keep the handcuffs on, again, to preserve DNA evidence. I find on all of the evidence that Folk only learned of the need to preserve this DNA evidence when he was instructed to do so by Corporal Dozois at around 1907.
It’s worth noting that Corporal Dozois initially testified that he told Constable Folk at the scene he needed to preserve DNA evidence, but when he was pressed on that point in cross-examination, Dozois agreed he could not recall just when he provided these instructions, and that in due course he agreed that those instructions may well have been provided by phone or by radio.
The best evidence that I have then is, perhaps ironically, from Constable Folk who, I take it, was referring to a time noted in his notebook when he agreed in cross-examination that he received instructions at 1907 to keep the handcuffs on on account of the need to preserve DNA evidence.
There was a lot of confusing evidence given by Constable Folk about when he left the scene and when he arrived at the detachment. His initial evidence, or early — earliest evidence in the voir dire had him leaving the scene at around 1830 or 1835. He had around five or ten minutes earlier completed his Chartering and cautioning of Mr. Harms. He initially testified he hung around the scene for five or ten minutes, apparently to have some further dealings with Corporal Dozois and apparently to make some notes in his notebook. He said it would have taken him about five minutes to travel from the Harms residence to the RCMP detachment where he would have arrived at around 1835 to 1840.
I appreciate that later in his evidence he attempted to change his evidence arriving at the detachment closer to 1850 or 10 to 7, reasoning that he had stayed at the scene for a longer period of time. I don’t consider Constable Folk’s later evidence on these times to be particularly credible. I’m not sure it matters, though, because whether he delayed at the scene or whether he delayed at the detachment up until 1907 when he received the instructions from Corporal Dozois or whether he delayed a bit at both ends of the spectrum that I have just laid out, the bottom line is that for no valid reason or explanation that’s before me in the voir dire, there was a period of delay of around 35 to 40 minutes after Mr. Harms had unequivocally asserted he wished to speak with a lawyer, which, as I say, had occurred by 1824 hours at the latest.
I have taken into account Constable Folk’s evidence that he decided to wait outside the residence because Corporal Dozois was inside still dealing with the complainant and her mother. That evidence, even taken together with the evidence of Corporal Dozois, makes no sense to me. There is no suggestion that Folk was being brought in to assist Dozois in his dealings with the complainant and her mother. No suggestion that at the scene anyone needed to wait at the scene to secure it. Constable Parker was already on his way for that purpose, having been called in apparently by Corporal Dozois. Constable Folk was clearly the lead investigating officer here, and although he took direction from Corporal Dozois with regard to the — eventually with regard to the need to preserve the DNA evidence, I don’t accept, frankly, that Corporal Dozois needed to come out onto the curbside to instruct Constable Folk to administer the Charter and cautioning. Folk was unequivocal in his initial evidence that he did that outside in or near the vehicle, and that makes sense to me, that’s what one would expect in an investigation, rather than waiting to be instructed to give those very basic information rights to an accused who was clearly under arrest, handcuffed, and obviously in police custody.
In spite of the conflicting evidence, which as I say I find hard to reconcile, the bottom line here for me is that Constable Folk was obliged immediately to take steps to facilitate Mr. Harms’ request to speak to the lawyer. There was no officer safety reason for staying at the scene. Staying at the scene, whether he did or didn’t, I find doesn’t matter to me. I suspect he didn’t, but there is this irreconcilable evidence. Staying at the scene to make notes in the circumstances of this case, in my view, would not be a valid reason to delay the exercise of Mr. Harms’ rights. There was nothing else in the evidence — nothing in the evidence that Corporal Dozois was aware that Mr. Harms had asserted his right to counsel, his right to speak with a lawyer. I should have thought that had Corporal Dozois been aware of that, he would have — as a professional, he would have been concerned for Mr. Harms’ immediately-arising rights to be put in a phone room with all of the usual safeguards around the exercise of the right to counsel. In any event, didn’t have any evidence from him that he was aware that Mr. Harms had asserted that right from the get-go.
So in terms of delay, I understand that Constable Folk was obliged to leave the scene — whether he did or didn’t, he was obliged to leave the scene as soon as he could have, in other words, immediately upon Mr. Harms’ assertion of right around 1824. The evidence is clear that it should have taken him no more than five minutes to reach the detachment. Irely also on Constable Parker’s evidence that that’s how long it took him to get to the Harms’ residence when he left the detachment to attend there to take photos and secure exhibits. It’s reasonable to have expected that by 1830, therefore, Harms would have been given his opportunity to call a lawyer. The imperative of keeping him handcuffed, at least in Constable Folk’s mind, did not arise on the evidence until, as I’ve said, 1907, almost 40 minutes after Mr. Harms had asserted his interest in speaking with the lawyer.
Moving on. According to Constable Folk’s evidence — and I have noted already that he was very much aided in his evidence in the voir dire by referring to his notebook. He seemed to have a difficulty remembering a lot of what occurred here simply by memory and referred back to his notebook on many occasions, and that’s fine, but it’s something that has to be noted. He was, of course, the lead investigator. He, therefore, should have been expected — I would have expected him to be of all of the members involved in this investigation, Constable Folk’s notebook would have been the most comprehensive, the most thorough. His notebook, then next — I shouldn’t say next. I haven’t seen the notes. I am informed by the evidence that at 1905 he did make a note of a statement that Mr. Harms made, and it’s verbatim. “I don’t give a fuck. I’ll plead guilty to this. I don’t know what else to do. Yeah, I ripped off her pants to teach her a lesson.”
Notwithstanding his role as lead investigator, inexplicably, I find Constable Folk was unable to give any evidence about the context of the statement, although he agreed there had been some what he called innocuous conversation with Harms before and after the statement was blurted out. And when I refer to conversation, it could be clearer in the evidence, but there is at least the suggestion that Constable McDonald was around. I’m not sure that Constable Parker was around at all this time because he was out gathering evidence and taking photographs and buying nail clippers. He eventually did respond.
But at this period of at 1905, it appears that McDonald was probably around. There — and I’m — I find on the evidence that even though there was no evidence of the context, there had been some discussion between Harms, Folk, and/or McDonald. I also note that at 19 — this is a comment made at 1905, which is two minutes before Constable Folk says he was advised in some manner by Corporal Dozois that the handcuffs had to stay on.
In his own evidence Constable Folk didn’t identify any particular problem with Harms around the time Constable McDonald first became involved. Constable Folk talked about Mr. Harms being up and down throughout his dealings with him. Constable McDonald, and later on Constable Parker, in the context of taking fingerprints — fingernails said Mr. Harms wasn’t acting in any particularly remarkable fashion. They did say that when they came on shift around seven, they noted some fracas or some dealings, some noise, some argument in a cell area. The suggestion that that was occurring while Mr. Harms was being booked in is something that I was unable to find in the evidence.
In any event, going forward from the 1905 statement or blurting out, some five minutes later at 1910 Constable Folk made a further note in his notebook that Mr. Harms stated, “Larry,” and I quote verbatim from the evidence yesterday, “Larry, you should have said I’ll kick the child molester’s ass,” closed quote, to which Larry, who was apparently Constable McDonald, replied, “I don’t do that,” closed quote. Again, aside from recording what Larry replied, there was no other context given from Constable Folk’s notes or for that matter from his memory except that there was likely some conversation before and after the blurting out in question, and that it was of an innocuous nature.
There was at least one further specific note in Constable Folk’s notebook that’s of some relevance here. It’s that at some point Mr. Harms said words to the effect he was at his wit’s end, on medication, and not thinking properly. Constable Folk at first testified this occurred around the time he was removing Mr. Harms’ handcuffs. He then changed that evidence and said that those comments were made around the time or during the ten or so minute period that Mr. Harms’ fingernails were being collected. Just relying on Constable Folk’s evidence for a moment, it couldn’t — it’s not at all clear, if that’s all the evidence I have, just when the fingernails were being taken. It’s doubtful it was as early at 1910, if only because Constable Parker had yet had an opportunity to stop and pick up clippers. He had only left the detachment shortly after coming on shift at 1900. He went to the scene of the alleged offence, took pictures, gathered exhibits, then went shopping for clippers, and then finally returned to the detachment.
Constable McDonald helped clear up timing issues, though, putting the collection of the fingernails at between 1935 and 1948, a period of about, well, 13 minutes, close enough to the ten-minute estimates that the other witnesses gave. This evidence, taken together with what I have found was the likely time of arrival at the detachment at about 1830, leads to the conclusion Mr. Harms was at the detachment, handcuffed, for it appears was an hour and a quarter before finally being afforded his right to counsel. Part of that period of time is the fingernail collection process, and I appreciate that in this voir dire no particular objection was taken by the defence that that process wasn’t appropriate or somehow it violated Mr. Harms’ rights. Take away the fingernail collection period, and again, and at the risk of being unnecessarily repetitive, I’m dealing with a situation that either there was an arrival at the detachment at 1830 or a delay at the scene of the investigation right up until 1907 when a reason then came into existence for Mr. Harms to remain handcuffed, and once that reason came into existence, it became reasonable for him not to have access to a telephone because to do so might well jeopardize the collection of relevant evidence on the investigation.
There is some evidence that Mr. Harms was experiencing significant discomfort, if not excruciating pain, while handcuffed with his hands behind his back, some evidence that he had a back condition that was known to the police, and that he was on medication. I’ll come back to that presently. The evidence is clear that he was provided access to a telephone only by the time of 1950 hours or 10 to 8. Constable Folk testified that he told Mr. Harms he could use the telephone only after DNA evidence was collected. That may well have happened, that may well have been said, but I have no reliable evidence as to when it was said, and I would not conclude that it was said at any point earlier than 1907.
As was pointed out in argument by defence counsel, it is hard, I find, not to fault Constable Folk, or at least to question his credibility as to what was said and wasn’t said around the impugned statements at 1905 and 1910, when, in the circumstances, Constable Folk not only failed to record the context of these statements, but he also failed to record at least one statement Mr. Harms made which was exculpatory. Constable McDonald, who I found was a straightforward witness and of course only really peripherally involved in this investigation, he was good enough to record in his notes that an exculpatory statement was made, although he had some difficulty remembering that in examination-in-chief and only did remember it when he was taken to his notes during cross-examination.
At the end of the day, on the evidence it’s hard not to conclude that nearly from the get-go in this investigation Constable Folk could have cared less about Mr. Harms’ right to counsel or his right to silence. That was obvious as early as the encounter in the basement, the unconstitutionality of which is conceded by the Crown, although not for Section 24(2) purposes. That what I find to be Constable Folk’s cavalier attitude with regard to Mr. Harms’ rights continued at the detachment by virtue of the unexplained delays in facilitating the right to counsel and by taking selective notes of statements the Crown now wants to adduce in evidence against the accused.
Turning to the legal issues and to deal first with the aspect of voluntariness, as noted in argument, there is no serious challenge to the voluntariness of the two statements that remain in issue, taking away, of course, the statement that was made in the basement.
I am persuaded in this case by Ms. Hayes’ reliance on the case of R. v. Hunter which, of course, follows R. v. Ferris. In argument Ms. Joyce doesn’t take issue with the state of the law set out in those cases, and I had little argument that that law doesn’t or shouldn’t apply quite closely to the facts of this case and to the 1905 and 1910 statements respectively. I don’t intend to quote chapter and verse from Hunter, but what I find is important is to observe that on the facts of this case we’re dealing with utterances. We’re also dealing with a situation where there is some evidence of a context around those utterances but no detailed or concrete evidence of what that context in fact was. That is very much similar to what’s observed at paragraph 6 in Hunter where the witness DiCecco overheard a gun remark, but said, I quote from paragraph 6 in the Hunter case, quote, “There might have been conversation between the accused and his lawyer both before and after the utterance, which he was unable to detail in his evidence.” The Court in Hunter then discussed in some quite detail Madam Justice Conrad’s reasons in the Alberta Court of Appeal version of Ferris and her approach of posing examples of possible surrounding context which would make the utterances arguably innocuous and thus not probative but still significantly prejudicial. And without trying very hard, I can easily use such examples on the statements here.
The 1905 statement, again, “I don’t give a fuck. I’ll plead guilty to this.” Well, at question, what is he saying he’ll plead guilty to? He may well, for example, have been talking about the firearms offence. Although at least on the indictment before the Court, there is no such offence being pursued.
I also note that an intention to plead guilty is something that is not an admission of fact so much as arguably only consciousness of guilt, which would be right up there with a statement such as I’m sorry, but — and it’s very often the case that accused individuals say, I’m sorry, forgive me, but for what. It’s entirely speculative and is not, in my view, probative of anything.
He then said, “I don’t know what else to do. Yeah, I ripped off her pants to teach her a lesson.” I’m not persuaded in the absence of context that that comment, particularly the last phrase, isn’t or couldn’t be read as being a sarcastic remark. For example, yeah, right, I ripped off her pants to teach her a lesson. I don’t know. I should note that the utterance made at 1905 cannot be informed by the earlier inadmissible statement made in the basement. They are, of course, similar, but in terms of allowing the jury to have the 1905 statement, obviously they would not have the inadmissible — subject to 24(2), they would not have the inadmissible basement statement to help put the 1905 statement into some context.I also find that the comment “I don’t know what else to do” does help inform the entire utterance and leaves me concluding that it’s impossible in the absence of context to give any meaning to the entire statement made at 1905 hours.With respect to the 1910 hour statement, “Larry, you should have said I’ll kick the child molester’s ass,” I find without gilding the lily that there is very little, if anything, that jumps out as being meaningful about that statement. Little, if anything, that is probative of anything in the case against the accused, as I understand it, coming out of the voir dire, and that in spades that statement does not meet the test set out in the Hunter and Ferris cases.
With regard then to these two statements, to paraphrase from paragraphs 19 to 21 in Hunter, I find their meaning is speculative and the probative value of them is therefore tenuous yet the prejudicial effect is still substantial. They should, therefore, be excluded on the basis it would be impossible for a jury properly instructed to conclude that these overheard utterances or either of them was an admission.
Turning to the Charter breaches, the first breach, of course, is admitted. I’ll come back to Section 24(2). I have been very tempted to find the second breach on account of the unexplained delay of almost 40 minutes that I’ve spent considerable time dealing with in my reasons so far in enabling Mr. Harms the right to contact a lawyer. I have some concern that I have been unable to — I have not been provided with any authorities that tell me that 40 minutes, even in the context of a constitutional right to be immediately provided with the ability to contact a lawyer even in the face of the — what’s clear is that the right without delay means immediate, that as much is apparent as recently from the Suberu decision, which of course is the companion to Grant, but in the absence of authority in a situation like this, not an impaired driving investigation, but a situation where an individual is being investigated for sexual assault and other offences, I have some hesitation to conclude that even a delay of up to around 37 to 40 minutes in the circumstances is a clear violation of Section 10(b) breach. I’m very tempted to find that is the case, but in the circumstances I’m going to stop short of making that finding if only because — and I have spent some time attempting to put my finger on authorities that assist me in that regard, but I simply haven’t been able to find any. I have not been provided with any. That wasn’t the basis for the Charter notice filed by the defence. In all those circumstances, while I continue to have significant difficulties with the unexplained delay, it is not — it doesn’t get me, doesn’t quite get me, to the point where I would conclude that there was a clear Section 10(b) breach. As will become apparent momentarily, I do take into account Constable Folk’s behaviour in connection with that delay when I assess the admissibility of the basement statement under Section 24(2) of the Charter.
Turning then to the Section 10(b) basis that was pleaded, so to speak, in the Charter notice, my conclusion is that there is no Section 10(b) breach based on the cases such as Caputo, Plaha, Wittwer, Morin and the like. These are all cases in which there was ample evidence police conscripted statements from the various accuseds after taking otherwise inadmissible statements. None of them take out — take away the Harper case, which is extremely unusual and not a case such as what we’re dealing with here, in my view.
Take that case away, and there — when I went back to read all the cases that were provided to me, none of them dealt with a situation such as we have here where we have utterances which on the evidence were not clearly conscripted from Mr. Harms. I have commented on my dissatisfaction with the state of the evidence coming from Constable Folk in particular around the context of the statements that were made, the utterances that were made — I wouldn’t call them statements. I would simply refer to them as utterances.
My reasons on this aspect of the Charter application aren’t meant to detract from my earlier findings and the application of the Hunter line of cases on voluntariness and reliability and prejudicial probative considerations, but I am unable to make the jump to conclude by some kind of inference that, in fact, the utterances at 1905 and 1910 were somehow conscripted by the authorities in a manner that violated Mr. Harms’ Section 10(b) rights. That may have been the case. In the absence of admissions from the police witnesses in the voir dire, the only other person who could have given evidence in that regard was Mr. Harms himself, and of course he’s not obliged to provide that evidence.
But on the other hand, it is his Charter application to establish a breach under Section 10(b), and in all of the circumstances here I can’t get to the point where I find, based on the Caputo and other lines of cases — line of cases — that there is a breach.
And so while I have excluded the 1905 and 1910 statements based on the Hunter line of cases, I would not exclude them based on a Section 10(b) infringement.
Finally, then, I need to deal with whether I would exclude the basement statement, which is conceded to be unconstitutional but — well, no, that’s not quite right. It’s conceded to be in breach, but is not unconstitutional in the sense that it should still be admitted under Section 24(2) of the Charter.
I’m not going to spend a lot of time articulating the Grant test. We all know what it is.
If this was a written decision to be published, I would be much more categorical, but in the interests of time, I will simply note that I — if I haven’t already done so in my reasons, I will affirm or confirm that I find the basement breach was serious, not minor, not inadvertent in any sense of the words. I find that Constable Folk knew or ought to have known — and I’m dealing now with the first part of the Grant test, which is the seriousness of the state conduct in question — I find Constable Folk knew or ought to have known he had no right to be asking Mr. Harms a single thing from the moment he formed reasonable and probable grounds, and I have been, I hope, categorical about when he did so, whether or not for a weapons offence or a sexual offence or both. As I have said, I don’t argue with the need for officer safety, but officer safety has nothing to do with the fact that Constable Folk posed even the general question that he did pose, which led to, from Mr. Harms’ perspective, a seriously damaging utterance or statement. I shouldn’t call it an utterance. It was a statement in response to a question. In my view it’s hard to imagine a more bright line constitutionally protected right that should be well understood by anyone engaged in the administration of justice, particularly in the criminal sphere, that upon arrest or detention an individual’s rights must be read to him, and upon an affirmative response, an immediate and reasonable opportunity must be provided to facilitate the right. That comes right out of Luong and all of the other cases which ad nauseam have instructed participants in the administration of criminal justice how rights are to be exercised.
Here the evidence is of an officer who simply moved forward with his investigation, either in ignorance of or with willful disregard for well-established Charter standards.
The deliberate nature of Constable Folk’s actions, in my view, negate considerations of good faith, and it is conduct which the Court should and does wish to distance itself from.
This conduct weighs heavily then in favour of exclusion. I should note that I have informed myself, aside from Grant of course, spent some time reviewing a couple of cases that were not in argument but I’ll mention for the record. A very recent decision, an excellent decision, of my colleague Justice Ouellette in a case called R. v. MacLean which is at 2013 ABQB 60, I think, or 65. I’m going from memory. And in MacLean there is a reference to the Court of Appeal’s earlier, much earlier, decision in the R. v. Small 1998 ABCA 85, which was a case also involving a sexual assault investigation, statements taken in breach of Section 10(b) rights. And even in that case, or I should say in that case, there was not any finding of anything approaching bad faith. The Court concluded that even in the absence of a violation that was not — I’m sorry. Too many negatives. Even where a violation was not deliberate or was simply based on an admission or perhaps negligence, the fact is that taking a statement in violation of Section 10(b) was seen as being a serious violation that on the exclusion test, as it then existed in 1998, resulted in the exclusion of the statement.
Grant also stands for the proposition that it is most often, if not more often than not, that statements taken in violation of Section 10(b) rights will be excluded, all else being equal.
With respect to the seriousness of the impact of the violation of the breach on the accused’s interests, typically this is a factor that weighs in favour of exclusion, and that is my finding here. The reasons for that in the cases are legion. The impact on the interests of the accused include the fact that there is a reasonable expectation that having exercised his right to counsel, Mr. Harms may well have decided that he wished to remain silent.
The point of the right of counsel is to inform him of that, to affirm what he’s been told, of course he wasn’t told anything here at the outset, and so all the more — this breach is even more egregious because he didn’t have an opportunity even to hear from Constable Folk that he had a right to remain silent, and of course I’m only talking about the basement statement now.
So cases, for example, like MacLean, like the Berger case from 2012 in our Court of Appeal, older cases, Sinclair from the Supreme Court of Canada, and they go on and on, the cases commenting about the need for a person detained or under arrest facing legal jeopardy must be immediately advised of his rights under Section 10(b) and of course his right to silence at common-law, and to be provided with an opportunity, if he wishes, to exercise those rights. That is the serious impact on the interests of the accused in this case, and clearly they weigh in favour of exclusion.
Finally, society’s interest. Clearly in many cases that weighs in favour of inclusion. Here, and I’m then going back to some discussion also in MacLean, which is a similar case on its facts, there was concern in MacLean, and I think also here, for the reliability of the statement made in the basement, what the statement was, it’s — again, there is — we know the context. It’s in answer — a statement made in answer to a general question, What’s going on here. It’s fair to say, even without hearing from the accused on the voir dire, that a Court or a trier of fact, in this case, may have a misconceived idea about why that statement was given, particularly in the absence of a warning around Section 10(b) of the Charter around the right to silence and the right against self-incrimination. Was that statement made, for example, by an accused who in his own misconceived way of thinking about things may have thought making that statement was in his best interests in terms of getting himself out of a predicament? It is — the cases have said, and MacLean says, for example, that in circumstances like that — and, again, they’re even worse because in MacLean the rights had been read to the individual and then questioning continued. Here, it’s worse because there were no rights read. Can it be said with any confidence that the statement given was, in fact, reliable, and is it in society’s interests to have such statements that go forward to a trier of fact, whether a judge alone or a jury, for consideration when the statements have been taken in what I find to be a clear violation of the accused’s rights?
While typically this part of the Grant test then does weigh in favour of inclusion, here, if it does, which I have some doubts about, it does only very weakly.
The fourth aspect of the test is to balance the factors I have just discussed. In my view, the strength of the case made or the case that exists under the first two factors, and the weakness of the case in the third factor, all militates in favour of the conclusion that the administration of justice would be brought into disrepute if the statement made in the basement was admitted into evidence and, therefore, it should be excluded. I say that recognizing that exclusion is not automatic, but it has to be only — it only follows once there has been a balancing of the first three factors of the Grant test, which I have tried to do. There is little, if anything, here on the facts as I apprehend them and the application of the law to them that would militate in favour including the basement statement into evidence.
So I apologize for taking so long. That is my ruling on the voir dire. For different reasons, all of the statements are inadmissible.
There’s also the issue of conflict of interest. Say, you’re a Constable on a police force investigating charges of sexual molestation. Is it really appropriate to be friends with an alleged “victim” on Facebook during an investigation?
Look real close at the name “Colin Folk” in the “Friends” list on Facebook. No wonder his testimony is “less than credible” according to the judge. From the evidence I see here, it’s clear there’s a personal agenda.
This kind of conduct is unacceptable.
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