R. v. Rojas, 2018 ONCJ 407

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2018-06-15

Court File No.: Brampton 3111 998 17 9441

Between:

Her Majesty the Queen

— AND —

Kamille Rojas

Before: Justice G.P. Renwick

Heard on: 14 and 15 June 2018

Reasons for Judgment released on: 15 June 2018

Counsel:

• J. Campitelli, counsel for the Crown
• E. Perchenok, counsel for the defendant Kamille Rojas

RENWICK J.:

INTRODUCTION

1During the preliminary hearing of the defendant, I am being asked to determine if two statements made to the police were voluntary. The first statement was allegedly given to police while the defendant was detained during the execution of a search warrant. An officer asked the defendant her name and address. The prosecution only seeks admissibility of this statement if a subsequent statement given to police during an interview at the police station following her arrest and the exercise of her rights to counsel is found to be inadmissible due to a lack of voluntariness.

2The prosecution called officers Gardner, Lorette, and Utigard on the preliminary hearing. On consent of the parties, the evidence taken during the preliminary hearing was applied to the voluntariness voir dire. The defendant also testified, but solely on the voir dire.

3There is no contest as between the litigants that the court must be satisfied beyond a reasonable doubt that when the defendant spoke to Constable Utigard she did so voluntarily, and with an operating mind. In this case there is an allegation that when the defendant first spoke to the police she did so without the knowledge that she could remain silent, she was distraught, and did not have an operating mind. The second statement is opposed on the grounds that when the defendant provided the videotaped utterances she did so to satisfy a suggested bargain foisted upon her by the arresting officer while he transported her to the police station: if you provide information about the drugs and gun you can go home and re-join your children. This type of inducement would be especially powerful in this case because the defendant was still breast-feeding her young daughter at the time.

CREDIBILITY

4I am aware that I can accept some, none, or all of what a witness says. Agreed facts, on the other hand, are accepted by the parties as proven. I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to subject the defendant's testimony to greater scrutiny, or a police witness' testimony to lesser scrutiny because of their respective roles in the proceedings. That would be unfair and it would completely undermine the burden upon the prosecution to prove that the defendant's statement is voluntary beyond a reasonable doubt.

5Given that there are credibility issues at play in determining whether or not the prosecution has met its burden of proof, I must apply the principles articulated by the Supreme Court of Canada in R. v. W.D., as applied by subsequent cases and explained by academic commentary:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the defendant's voluntariness, I cannot admit the statement;

(iii) Even if I do not entirely believe the evidence inconsistent with the defendant's voluntariness, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant's statement has not been proven voluntary;

(iv) Even if I entirely disbelieve evidence that is inconsistent with the defendant's voluntariness, the mere rejection of that evidence does not prove voluntariness; and

(v) Even where I entirely disbelieve evidence that is inconsistent with the defendant's voluntariness, the statement should not be found to be voluntarily made unless the evidence that is given credit proves the defendant's voluntariness beyond a reasonable doubt.

FINDINGS

6Some brief comments about each witness may serve to explain subsequent findings in these reasons. Suffice it to say that the evidence of this proceeding is fresh in my mind because this brief preliminary hearing began yesterday and completed today, I have detailed notes, and I have access to the digital audio recording of yesterday's proceedings. I have considered each witness' testimony in terms of its internal consistency across the whole of their evidence, external consistency when compared with other evidence, plausibility (based on common sense and life experience), balance (the ability of the witness to admit things which may undermine their version of events), the ability to communicate their evidence, demeanor (although I do not know any of the witnesses or the defendant and give this factor very little weight), memory, and reliability.

7Constable Gardner was not an impressive witness. He relied heavily on his notes to refresh his memory before answering in critical areas. His demeanor was one of uncertainty or confusion. That said, on the issue of whether or not he coerced or threatened or induced Ms. Rojas to speak to him when he asked her name and address, I believe him when he says he did not. There is simply no evidence, including the defendant's to contradict this evidence and I accept it as truthful and reliable. That does not mean that I have found the defendant's statement made in response to his questions to have been voluntarily made. There is still the issue of compulsion and whether or not the defendant would truly have felt free to refuse to answer these simple tombstone questions when she did.

8Constable Lorette factored into this voir dire in a very minimal way. He was present as the exhibits officer at the home where the search was conducted. He saw the defendant. He says he had almost no interaction with the defendant besides leaving a copy of the warrant for her. He denied making any threats or inducements to the defendant. He was not challenged on this evidence, nor did the defendant testify that her interactions with Constable Lorette had any impact upon her free will.

9Constable Utigard is the main prosecution witness for the purposes of the voluntariness determination. I had the benefit of seeing his demeanor, behaviour, and hearing from him on the video statement where he appeared for about 50 minutes and in court while he testified for various periods of time over yesterday and today. Constable Utigard struck me as earnest, easy to get along with, conscientious, honest, and respectful of common decency. I say this for several reasons, but primarily because he seemed to recognize at every point in their interaction where the defendant may be experiencing stress and he seemed interested to alleviate that for her.

10In terms of Constable Utigard's testimony, it was at all times consistent, internally and across other pieces of evidence, except where it conflicted with the defendant's testimony in some places, balanced (for instance, he admitted that he had not given the defendant her rights to counsel although she was obviously detained), and entirely believable. His efforts to recognize that the defendant was not just a suspect but someone with significant parental responsibilities were obvious. In the end, after cross-examination, and after hearing all of the defendant's evidence, I do not disbelieve this officer's evidence. It is capable of meeting the prosecution's high threshold of proof, but this is far from the end of the analysis.

11I have listened carefully to the defendant's testimony and I have considered the defendant's appearance, behaviour, and self-expression on the videotaped recording. I do not know Ms. Rojas, except for having seen her in court over yesterday and today. Unfortunately, Ms. Rojas was not an impressive witness. However, I was completely compelled by her appearance during the videotaped statement. She is completely distraught and distressed in that recording. She is extremely believable in that recording. However, in person, her evidence was given in a monotonous, almost flat, way. This stands in distinction from her appearance in court, which at times has included reasonable displays of sadness and distress, at counsel table.

12More than this, however, I am troubled by certain aspects of the defendant's version of events, which are somewhat improbable. But I will say more about this in a moment.

13Before the officer even begins to get into the rights to counsel in the videotaped statement, the defendant blurts out on the recording: "My biggest concern, what was he doing; what was really happening." This initial expression early in the interview left me with the thought that the defendant wanted to speak to this officer because she trusted him. That would be reasonable given how Constable Utigard had treated the defendant up until this point: When he was told to arrest the defendant he did not take custody of her in front of her children, instead he asked if she had anyone she could call to take care of the babies; when her mother arrived, he let the defendant go upstairs to pack some necessities for the children; he waited to formally arrest her and handcuffed her to the front; he reassured the defendant on videotape that her children were doing well; he offered the defendant a blanket when she appeared cold because of the air conditioning (my own suspicion is that she was entirely unnerved to be under arrest and in a police station and that lead her to feel the air conditioning more than if she were completely relaxed); and he offered her a box of tissues to wipe her tears.

14In terms of the defendant's credibility overall, counsel is correct that the defendant easily admitted that she had no memory of providing her name and address to Constable Gardner. However, this does demonstrate that her recollection of things was imperfect.

15When the defendant was pressed on the contents of the twenty minute van ride to the police station she said that Constable Utigard just kept repeating that nobody is going home until the police get some information. This was very general at first. Only during further cross-examination did the defendant suggest that the officer wanted evidence to implicate Kareem Corbin. What the defendant could not answer, and what makes little sense is why he used the word "nobody" rather than simply "you." This part of the defendant's version of events is somewhat implausible. Furthermore, if that were the case, why did the defendant not immediately provide the information that was sought. Why would she have waited until after she got to the police station, and until after she had received her rights to counsel, before telling the officer, what she presumably thought he wanted to hear.

16The greatest single problem I have with the defendant's version of events is the failure to confront the statements by the officer on the videotape recording that he was reading her the rights to counsel, again. Moreover, if he had not read the defendant her rights before transporting her to the station, as he indicated, how did he know that she had no lawyer. The defendant did not suggest that there is any explanation for how the officer would have known that. Also, her suggestion that she was told to answer a telephone in a room and she had no idea who would be calling her was completely unbelievable.

17I do not accept the defendant's version of events. Nonetheless, I must consider whether I am left in a reasonable doubt by the defendant's evidence on the issue of her voluntariness and I must go on to consider whether there is evidence that I do accept that meets the prosecution's burden of proof.

18Given my perception that the defendant liked and trusted Constable Utigard, based on the way she responded to him and the things she said during the videotaped interview, and how different she appeared while testifying, I not only reject the defendant's version of events, but I am not left in any doubt by it. It strikes me as completely implausible, far-fetched, and untrue. However, that is not the end of the matter.

19I believe Constable Utigard when he testified that he did not offer any inducements to get the defendant to speak to the police. He was emphatic during cross-examination when the suggestion was put to him, calling it a "lie" and I believed his evidence on these points.

CONCLUSION

20In the end, I have evidence, which I accept as truthful that no inducements or promises or threats were made and I am satisfied beyond a reasonable doubt and despite the defendant's evidence to the contrary, that the defendant spoke to the police voluntarily and with an operating mind on 05 July 2017 at the Peel Regional Police 21 Division.

21Given the concession by the prosecution, in these circumstances I need not consider whether the statement to Constable Gardner was voluntary and I decline to make any finding in respect of same at this point.