R. v. Swanek, 2005 CanLII 3326 (ON CA)

DATE: 20050214

DOCKET: C39541

COURT OF APPEAL FOR ONTARIO

MCMURTRY C.J.O., DOHERTY and MACFARLAND JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

James Lockyer for the appellant

Respondent

• and -

P.G. McDermott

BLAIR SWANEK

for the respondent

Appellant

Heard: February 7, 2005

On appeal from the conviction entered by Justice David G. Stinson of the Superior Court of Justice, sitting with a jury, on October 22, 2001.

DOHERTY J.A.:

1The appellant was convicted by a jury of two robberies and related offences. The Crown’s case depended entirely on a statement allegedly made by the appellant while he was in custody to two officers of the Toronto Hold-up Squad.

2The voluntariness of the alleged statement was not in issue. It was the appellant’s position that he did not make the inculpatory statements relied on by the Crown. The appellant contended that the police had fabricated those statements.

3The two officers involved in the taking of the statement testified that they arrested the appellant who was in custody at the Don Jail and after the appropriate cautions, questioned him concerning the two robberies. According to the officers, the appellant readily admitted his involvement in the robberies, but declined to sign their notebooks where they had recorded the questions and answers and declined to sign the photographs the appellant had identified as photographs of his accomplices.

4The appellant testified that he was arrested on the robbery charges while in the Don Jail. His version of the meeting with the police officers was consistent with that given by the officers except as it related to the inculpatory parts of the alleged statement. The appellant acknowledged that he had a relatively casual conversation with the officers for about 20 to 30 minutes during which they advised him of his rights, asked him how he had come to meet one of his alleged accomplices and asked him about his involvement in the robberies. Except for the inculpatory parts of the statement, the appellant agreed that the officers had accurately recorded the contents of the conversation in their notebooks. The appellant further agreed that he had been shown photographs of his alleged accomplices and that he may have been asked to sign the photographs. He testified that had he been asked to sign the photographs, he would have refused. The appellant insisted, however, that when asked about the robberies, he had maintained his innocence. He said he told the police, “You guys know I didn’t do it.”

5The appeal centered around the officers’ failure to videotape or tape record their alleged conversation with the appellant. This was not an issue at trial. The officers testified that after the appellant had acknowledged his involvement in the robberies and answered their questions, they had asked the appellant if he would be willing to put his statement on audiotape. According to the police, the appellant declined to do so. The only questioning concerning this exchange between the appellant and the officers appears in the examination-in-chief of one of the officer:

Q. And in terms of your request of him, if he was interested in making a statement on audiotape, under what circumstances do you do that and why did you do that in this case?

A. As a result of case law and being in many courts, the best evidence is a videotape, if I’m able to take a videotape. Being that we were at a jail facility, I don’t believe I could have taken a videotape. The next best evidence is an audiotape. I wished to have Mr. Swanek go onto an audiotape and go over all the questions if he wished, but unfortunately, it’s up to him if he was willing to do that. I cannot force him to do that.

Q. Then in terms of the questions and answers you did ask, you did not have an audiotape recording that?

A. No, I did not [emphasis added].

The Grounds of Appeal

(a) The reasonableness of the verdicts

6Counsel for the appellant argues that the convictions are unreasonable. He first submits that any conviction based exclusively on evidence of an inculpatory statement made to the police and taken in circumstances where the police could have, but did not videotape or tape record the statement, is presumptively unreasonable and must be quashed on appeal. Alternatively, he submits that if the per se rule goes too far, there are features of this case which render unreasonable the verdicts based exclusively on the alleged statements made by the appellant.

7Where the Crown relies on a statement allegedly made by an accused, the question of whether the statement was made is for the jury as long as there is some evidence from which the jury could conclude that the statement was made: R. v. Park (1981), 59 C.C.C. (2d) 385 at 395 (S.C.C.). The appellant’s first submission, if accepted, would effectively remove this factual question from the jury’s consideration in cases where there was no evidence other than the statement and the statement was taken in circumstances where it could have been, but was not videotaped or tape recorded by the police. It would make little sense to leave this question with the jury if any conviction returned by the jury was automatically labelled unreasonable on appeal.

8The appellant relies on several cases from this court that have emphasized the importance of the creation of an appropriate recording by the police of any interaction with an accused where the voluntariness of the accused’s statement may become an issue at trial. In the leading case, R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 at 518, Charron J.A. said:

[A]nd, in my view, the completeness, accuracy and reliability of the record have everything to do with the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.

9The cases relied on by the appellant emphatically make the point that the failure to properly record a statement will weigh heavily against the Crown if the voluntariness of the statement is in issue on appeal. None of these cases, however, support, even as it applies to the determination of voluntariness, the per se rule advocated by the appellant. The extent to which the failure to create an independent record of a statement undermines credibility of the police version as it relates to voluntariness or the content of the statement will depend on the circumstances of the case.

10It cannot be gainsaid that a proper recording of a statement is most beneficial in assessing both its voluntariness and the content of the statement. It is, however, a long step from that observation to the conclusion that any statement that is not properly recorded should be excluded if it is the only evidence relied on by the Crown. As observed by Iacobucci J. in R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 at 345:

This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession.

11I also must reject the submission that there were features specific to this case that rendered the verdicts based exclusively on the appellant’s statement unreasonable. The several factors referred to in argument by counsel for the appellant (e.g. the police failure to ask more detailed questions about the appellant’s involvement in the robberies) could support the contention that the appellant did not make the inculpatory statements. There were, however, other features of the case that could add credibility to the police evidence (e.g. the appellant’s admission that the bulk of the statement was accurately recorded by the police). Furthermore, the police explanation for not audio recording the statement was unchallenged. It was for the jury to assess the merits of these competing arguments. Viewing this evidence, even with the benefit of the “lens of judicial experience”, I am not prepared to say that the jury’s finding that the appellant made the statements is one that no reasonable jury could have made.

(b) The failure to caution the jury against accepting the evidence that the appellant had made an inculpatory statement

12Counsel for the appellant submits that the trial judge should have cautioned the jury that it was dangerous to rely on an alleged inculpatory statement made by a person in custody where the police had failed to make a proper recording of the statement and there was no confirmatory evidence available. Counsel makes the valid point that while those who are regularly involved in the criminal process are familiar with the historical unreliability of oral confessions attributed to persons in custody, a jury may well not appreciate that unreliability.

13If the police failure to make a proper recording of an alleged inculpatory statement is in issue at trial, I think a trial judge should tell the jury that the failure to make a proper recording is an important factor for the jury to consider in deciding whether to rely on the police version of the alleged statement. No such direction was given in this trial and none was requested. Indeed, the failure to videotape or audiotape the statement was a non-issue at this trial. The only evidence heard by the jury was to the effect that the officer wished to obtain an audiotaped statement, but believed that he could not do so after the appellant refused to consent to the recording. Considered beside this unchallenged evidence, a caution based on the failure to tape record the statement would have made no sense to the jury. In the circumstances of this case and considering the way in which the trial was conducted, the failure to caution the jury against reliance on the appellant’s statements was not non-direction amounting to misdirection.

(c) The reasonable doubt instruction

14Counsel for the appellant contends that as the Crown’s case was based entirely on the statement, the trial judge had to tell the jury that it could rely on the statement only if it was satisfied beyond a reasonable doubt that the statement was made.

15I think the trial judge effectively gave this instruction to the jury. He said:

[R]ather, the Crown’s case against him depends upon the statement he allegedly gave to the two police officers who interviewed him on September 22, 2000. It is the evidence surrounding that interview and the alleged admissions made by him on that occasion that are the most important for your deliberations. That is the evidence that you will have to consider when you decide the central issue in this case; namely, has the Crown satisfied you beyond a reasonable doubt that Mr. Swanek was one of the participants in these two robberies?

(d) The failure to tell the jury to give no weight to hearsay evidence

16In the course of the trial, the jury heard that a man named Tallon, who allegedly committed the robberies with the appellant, gave a statement to the police implicating the appellant. The jury also heard evidence that a person named Barr had provided information to the police which had also linked the appellant to the robberies. Finally, the jury heard evidence that Tallon had pleaded guilty to the robberies. Much of the evidence concerning Tallon came out in cross-examination by counsel for the appellant. The defence took the position that Tallon was the source of all information against the appellant and that the Crown’s failure to call Tallon as a witness significantly weakened the Crown’s case.

17Anything said by Tallon or Barr to the police was not admissible for the truth of its contents. It was admissible only to show why the police had arrested the appellant. The trial judge did not tell the jury that they could not use this evidence against the appellant. Nor was he asked to give any such instruction.

18I think it would have been better had the trial judge told the jury that what Tallon and Barr allegedly said to the police could not be used in any way against the appellant and that Tallon’s guilty plea was no evidence against the appellant. I am satisfied, however, that the failure to do so does not amount to reversible error. This was a short, straightforward trial. It was made abundantly clear to the jury that the verdict turned on whether the appellant admitted his involvement in the robberies to the police when they interviewed him at the Don Jail. The references to statements made to the police by Tallon and Barr, adduced almost exclusively by the defence in cross-examination, would not have played any part in the jury’s determination of whether the appellant confessed to the police.

19I would dismiss the appeal.