Court of Appeal for Ontario
Before: Simmons, Cronk and Gillese JJ.A.
Between:
Her Majesty the Queen (Appellant)
and
Norman Blain (Respondent)
Counsel:
Gillian Roberts, for the appellant
Leo Adler and Patrick Quilty, for the respondent
Heard: March 28, 2013
On appeal from the acquittals entered on July 22, 2011 by Justice Peter H. Wilkie of the Ontario Court of Justice, sitting without a jury.
Endorsement
1The respondent was charged with accessing and possessing child pornography. He was acquitted of all charges following a combined Charter/voluntariness voir dire. Among other things, the trial judge found that the Crown had not met its burden of proving that statements allegedly made by the respondent to the police, both before and after his arrest (the “Statements”), were voluntary.
2The Crown appeals.
3At the oral hearing of the appeal, the court found it unnecessary to call on the respondent. It advised the parties that the appeal was dismissed and that reasons would follow shortly. These are the promised reasons.
4Crown counsel has acknowledged that the crux of the appeal is the trial judge’s determinations on the voluntariness of the Statements. Further, she acknowledged that if she fails on this issue, the balance of the appeal falls.
5We see no basis on which to interfere with the trial judge’s determinations on the fundamental issue of voluntariness.
6The Crown bore the burden of proving that the Statements made to the police were voluntary. In finding that the Crown failed to meet its onus, the trial judge relied on his findings that (1) the record was incomplete and inaccurate, and (2) the evidence of the two police officers who testified on the voir dire was neither credible nor reliable.
7These findings were fully available to the trial judge. Contrary to the Crown’s submission, the trial judge did not find a reasonable doubt because of the absence of a verbatim record of the interaction between the respondent and the police. Rather, the trial judge considered all of the evidence put forward by the Crown. He gave detailed reasons setting out the notable inconsistencies in the officers’ testimony and explained why he was not satisfied that the evidence of the police officers accurately or completely set forth the sequence of events or the details of the encounter.
8Furthermore, the trial judge made detailed, specific findings of the “highly unsatisfactory state of the record”. While he concluded that his findings on voluntariness were in “large measure” due to the absence of an accurate, complete or reliable record of what occurred, the trial judge himself noted that he did not require a verbatim account. He observed that the quality of the record was something entirely within the power of the authorities to determine, in circumstances fully orchestrated by the police. “They had complete control over the pace of the investigation, where and when it would proceed, who would be involved and what equipment or aids would be utilized.” Given that the officers were operating in a relatively controlled environment where they knew in advance that an important conversation with a suspect was about to occur, the trial judge concluded that it was reasonable to expect that they would take reasonable steps to protect the integrity of the record. He found that was not done.
9In the circumstances, the trial judge could not be satisfied that the Statements were voluntary – that is, he could not be satisfied that they were made without threats, promises or inducement. We see no basis on which to interfere with that determination.
10Accordingly, the appeal is dismissed.
“Janet Simmons J.A.”
“E.A. Cronk J.A.”
“E.E. Gillese J.A.”
