Court File and Parties

Date: June 18, 2018

Court File No.: 16-12621

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Alexander Wielgosz

Trial Information

Trial held before: Justice Paul F. Monahan

Voluntariness Voir Dire heard on: November 3, 7, 8, December 11, 12, 18, 2017 and January 22, 2018

Reasons for Decision on the Voluntariness Voir Dire Released on: June 18, 2018

Counsel:

• J. Graham, for the Crown
• N. Gregson, for the defendant

MONAHAN J.:

Introduction

1This is a mid-trial ruling on a voluntariness voir dire held with respect to a videotaped statement made by the defendant to the police.

2Mr. Alexander Wielgosz is charged with attempted murder, two counts of aggravated assault, two counts of weapons dangerous, breach of probation and breach of recognizance. The allegations relate to events alleged to have occurred on or about October 10, 2016.

3The voluntariness voir dire was held during the ongoing trial. The Crown has called all of its trial and voluntariness voir dire evidence and the defence is awaiting this ruling before being asked if Mr. Wielgosz wishes to call evidence on the trial proper. There were 5 police witnesses called by the Crown on the voir dire: Officer Philips who arrested Mr. Wielgosz at the home he shares with his parents; Officer Propper who had some limited involvement in the arrest of Mr. Wielgosz and who made some observations of him; Officer McLean who transported Mr. Wielgosz to the police station and dealt with him on a few occasions when he was in the interview room; Officer Stanley who was the forensics officer who took swabs off of Mr. Wielgosz's hands and who was involved in a physical altercation with Mr. Wielgosz in the process; and Officer Cooper who was the officer in charge of the investigation and the officer who interviewed Mr. Wielgosz. The defence called Mr. Wielgosz on the voir dire and no further evidence.

4A videotaped interaction and interview of Mr. Wielgosz was held with the police on October 10 and 11, 2016. The videotape was played for the Court and a transcript of that interview was provided to the Court as an aide memoire. It is the videotaped statement that forms the subject matter of the voir dire.

Issue

5The issue on the voluntariness voir dire is whether the Crown has proved the voluntariness of the statement beyond a reasonable doubt.

6The Crown submits that it has proved the voluntariness of the statement beyond a reasonable doubt. The Crown submits that there was no oppression, promises, inducements or threats.

7The defence's position is that there is a reasonable doubt as to the voluntariness of the statement. The emphasis of the defence's position is that Mr. Wielgosz was subject to oppressive conditions and physical force at the hands of some of the officers and that, as a result, there is a reasonable doubt concerning the voluntariness of his statement.

The Circumstances Surrounding the Arrest and Statement of Mr. Wielgosz

8In order to determine whether the statement was voluntary, it is necessary to review the circumstances surrounding the statement. As I review the circumstances surrounding the arrest and the statement I will resolve the contested factual issues. I may expand upon those factual findings in my analysis on the voluntariness issue.

9Let me state at the outset that it was Mr. Wielgosz's position in his testimony that the videotape of his statement had been altered. He testified at length on this point: in some cases he suggested that the tape had him saying things that he did not say and he suggested his voice had been dubbed over. He also testified that the tape had been spliced and rearranged into a different order than how things actually occurred. He also said some photographs of him entered into evidence had been altered using a computer program called "photo shop". To be clear, I am fully satisfied that the videotape is an accurate representation of the interaction with Mr. Wielgosz and that there has been no altering of the tape by the police or anyone else in anyway. The same is true of the photographs.

Chronology

10Mr. Wielgosz was arrested in his parent's home at 10:18 pm on October 10, 2016. He was a suspect in the stabbing of two persons which had taken place a short time earlier. At the time of his arrest, the police had information that he had both a knife and a gun and that he was a schizophrenic. Indeed, the officer in charge, Officer Cooper, said that as soon as he heard that Mr. Wielgosz was a suspect, he knew that Peel police had information that he had mental health issues although Officer Cooper had not had direct dealings with him in the past. Mr. Wielgosz was arrested by two officers: one of them had a rifle pointed at him and the other had a handgun pointed at him. A police trained German shepherd dog was used to assist the police in the arrest. When he was arrested, he was lying down on the couch. He had on boxer shorts and a sweatshirt but no shoes. When he was arrested, Officer Philips noted that he appeared to have urinated himself and his boxer shorts were wet with urine. Officer Phillips also observed that Mr. Wielgosz appeared to be sluggish and might be intoxicated. Officer Propper had some limited involvement in the arrest and she also made observations that Mr. Wielgosz was intoxicated when she saw him in the cells back at the station. From the outset of his arrest, he was handcuffed with his hands behind his back and taken to the police station in his underwear which was wet with urine and a sweatshirt and no shoes. By the time he is seen on the video a short time later, the sweatshirt is hanging on his forearms or hands as he is handcuffed to the back. I infer that the same must have been true at the time of his arrest. The point is simply that he was handcuffed to the back in his urine wet underwear with no shirt or sweatshirt actually on him and no socks or shoes.

11Apparently because the police dog was barking at the time of the arrest at 10:18 PM, the arresting officer did not tell him why he was under arrest nor did he read him rights to counsel. He was handed over to Officer McLean who told him that he was charged with attempted murder and, at 10:24 PM, according to Officer McLean, he gave him both his rights to counsel and a caution telling him that he did not have to say anything but that if he did say anything, it could be used against him. Mr. Wielgosz apparently said words to the effect "I hear you man". Mr. Wielgosz apparently also said that he did not wish to speak to counsel.

12Officer McLean arrived at 11 division with Mr. Wielgosz at 10:30 PM on October 10. He doesn't know who asked him to do it but someone instructed him to put Mr. Wielgosz in one of the interview rooms rather than a cell. The interview room is audio and videotaped and it is that interaction that is the subject matter of the voluntariness voir dire. I note that the transcript does not transcribe Mr. Wielgosz calling out for assistance from time to time but I have captured most of these points below.

13The following is an overview of what occurs over the almost approximately 7 hours Mr. Wielgosz is in the interview room.

At 10:38 PM Constable McLean puts Mr. Wielgosz in the videotaped interview room. He was left sitting in a chair with his hands handcuffed behind his back until approximately 1:10 AM. As indicated above, his sweatshirt is hanging on his hands or forearms cuffed behind his back so that he essentially has no shirt on. He has on his boxer shorts that he had been arrested in and he is barefoot. It would be another 5 hours and 10 minutes before the actual interview would start at 3:50 AM. Mr. Wielgosz was left in the interview room with sporadic and limited contact with police from 10:38 PM to 3:50 AM when the actual interview starts.

At 10:43 PM Mr. Wielgosz twice calls out "yo". There is no response from anyone.

At 10:47 PM Mr. Wielgosz appears to be sleeping sitting up in a chair and handcuffed at the back which he appears to do for some time.

At 11:02 PM he falls forward while sleeping and hits his head on the table beside him. He wakes slightly and then apparently goes back to sleep.

At 11:26 PM he stands up and urinates in the corner of the carpeted interview room for about 40 seconds. His hands are cuffed behind his back so he cannot use his hands to assist himself and so he urinates through his underwear fully soaking his underwear further with urine. He later explains to the officers that he meant no disrespect and that it was an "emergency". An officer can be heard to say from outside the room with the door still closed "aw he just pissed in the corner". Mr. Wielgosz looks over at the glass on the wall where the room entrance is and says "it's ok" and signals using his head that someone should come in. No one does at this point.

Mr. Wielgosz testified that he urinated because he could not hold it in any longer. He said he called out to the officers to get assistance about a half hour before. I note the reference to "yo yo" at 10:43 pm. Mr. Wielgosz said he also called out "Officer hello hello" which he did not in fact do. It appears likely to me that the officers did not hear this "yo yo" at 10:43 pm as it was not that loud although it is difficult to say for sure as Officer Cooper testified that he had heard Mr. Wielgosz calling out apparently during the time period 11:37 to 11:44 PM and chose not to have him checked on in person. In other words, he ignored him at that time which was after he had already urinated. In any event, I accept that Mr. Wielgosz did call out "yo yo" at 10:43 pm to get the attention of the officers because he wanted to use the washroom.

At 11:28 PM, Mr. Wielgosz calls out what sounds like "lets talk man". He then calls out in a loud voice "yo" numerous times between at 11:28 PM and 11:29 PM.

At 11:29 PM, Officer McLean comes in and says "what's up mate, what do you need". The officer says "you pissed in the corner haven't you". Then the officer asks if he needs the bathroom. Mr. Wielgosz says "no I am good". The officer also asks if he needs water or food to which Mr. Wielgosz says "I'm good man". Mr. Wielgosz also suggests during this interaction that "I got something for you man" but when asked what it is says "what's good?"

At 11:31PM, Mr. Wielgosz calls out "yo" and Officer McLean comes in and asks him what's up. Mr. Wielgosz asks the officer "what would it take for me to go home tonight". The officer says it would depend. Mr. Wielgosz says what about a quarter of Ki, apparently referring to drugs. The officer says "we can't discuss that". The officer asks if there is anything he can do to make him more comfortable to which Mr. Wielgosz does not respond. The officer makes the observation that "you have obviously gone to the bathroom there" to which Mr. Wielgosz says "supposedly Ki's of coke" and Officer McLean says he can discuss that with the officer who interviews him. The officer leaves him at 11:33 PM.

At 1137 PM Mr. Wielgosz calls out "yo" and "officer".

At 11:38 PM, he calls out again "officer" and then "sir please" and again "sir".

At 11:39 PM, he calls out "yo sir" and "sir, sir".

At 11:40 PM, and again at 11:41 PM, he calls out "sir".

At 11:44 PM he calls out "yaa". No one responds to any of these calls.

[Officer Cooper apparently heard at least some of these calls for attention and chose to ignore them]

11:54 PM – Mr. Wielgosz appears to be sleeping but it is not entirely clear.

12:03 PM – Mr. Wielgosz scratches his nose with his knee.

11:32 to 1:09 AM – No one returns to speak to Mr. Wielgosz for 1 hour and 37 minutes notwithstanding his calling out to the officers. He is left handcuffed at the back sitting in a chair, barefoot with no shirt on wearing underwear soaked with urine.

1:09 AM Officer Stanley, the identification officer from the forensics unit enters with Officer McLean and Officer Morin. Mr. Wielgosz is told that the officers are coming to talk to him. The first thing Mr. Wielgosz says is "can you loosen these?" referring to the handcuffs. The officers say they will be removing them and they do so. The officers tell him that they're going to take some swabs from his hands and some photographs. From this point forward Mr. Wielgosz is not handcuffed.

Mr. Wielgosz is clearly reluctant to have photographs of himself taken but he is told "you don't have a choice". He is told to stand in the corner while the officers take photographs and swabs of his hands.

1:11 to 1:12 am – There are various comments by the officers that they will let him sleep and that the officers will take him to a cell to let him sleep after they are done with the forensics. Mr. Wielgosz says "take me down to sleep" and "I am tired man. So tired man." One of the officers says that he is anxious to put him downstairs so he can have a sleep. He says he knows that Mr. Wielgosz is tired.

1:13 AM to 1:14 AM - Mr. Wielgosz is in the corner having photographs taken and he has been generally cooperative until that point. At this point, he does not want them to take either a further photograph or a swab of his hands or one of his hands. Officers Morin and McLean are trying to persuade him to cooperate by telling him the sooner he does so the sooner he can go downstairs and sleep in his cell. Officer Stanley, tells him to put out his left hand and reaches over and attempts to grab it. Mr. Wielgosz appears to pull his left hand away and seems to use his right arm to brush the officer away. Officer Stanley testified that Mr. Wielgosz used his right hand to grab the forearm or wrist of Officer Stanley's left arm. This leads Officer Stanley to say "don't touch me Aleks". It is apparent from the video that Officer Stanley then uses his right arm and hand to either punch, hit or shove Mr. Wielgosz in the head or upper body. Officers Morin and McLean move in on Mr. Wielgosz so that all three officers are holding him with his head and body against the wall. Mr. Wielgosz says "what the fuck, I didn't touch you man". Officer Stanley replies "you just put your hands on me. That was a bad decision". The officers continue to take photographs of his hands and Mr. Wielgosz says "don't fucking grab me like that". Mr. Wielgosz then says "what are you going to do, break my fucking fingers?" To which Officer Stanley says "probably it's gonna happen. Why would you do this? It's not, it's not difficult to do that, it's not worth it, this is not worth it to you"

Officer McLean initially testified on the trial and voir dire that there had been no physical contact at any time between any police officer and Mr. Wielgosz and that Mr. Wielgosz had not used any physical force against any of the officers. When the above portion of the video was played for Officer McLean, at the court's request, he initially said he could not see what had happened on the video that was played for him. Then Officer McLean denied that Officer Stanley had struck Mr. Wielgosz at all when it was obvious that he had at least in some way. Then Officer McLean acknowledged that Officer Stanley either grabbed Mr. Wielgosz, pushed his hand or punched him.

Officer Stanley testified that Mr. Wielgosz was refusing to take his hand out of his pocket. Officer Stanley said that he went to take Mr. Wielgosz's hand out of his pocket and Mr. Wielgosz grabbed Officer Stanley's right forearm. In response, Officer Stanley said he spun Mr. Wielgosz's right arm off of his and used his right arm with an open palm to push Mr. Wielgosz (with the other two officers) against the wall with what might have been Mr. Wielgosz's face and upper chest going into the wall. Officer Stanley initially said that he was looking into the lens of a camera when all this started but he acknowledged in cross that that was not the case. He said that he also wanted to prevent the situation from escalating.

Mr. Wielgosz testified that Officer Stanley punched him with a fist in head, neck or chest area (he was not sure) and Mr. Wielgosz also said that he had done nothing just prior to being hit by Officer Stanley.

I have viewed and listened to the video multiple times and I have considered the testimony of Officers Stanley and McLean and Mr. Wielgosz. There is no dispute that Officers Stanley, McLean and Morin used force with Mr. Wielgosz. There is no question that the three officers pushed and held him with his face and body against the wall. It is also clear to me that Officer Stanley struck him with his right hand in the upper body or head. The only point that is unclear is whether Mr. Wielgosz first grabbed Officer Stanley by the arm and whether Officer Stanley hit him with a closed fist or an open hand and precisely where. Officer Stanley says it was an open hand to his body and that he did it as part of a move to get Mr. Wielgosz to release his hold on Officer Stanley's arm. Mr. Wielgosz may have grabbed Officer Stanley's arm although it is my view that if he did it was in a very minor brush off type of way aimed at having the officers leave one of his hands alone. I can't say whether Officer Stanley punched Mr. Wielgosz in the head or body with a closed fist. He might have.

There is no issue that the police were entitled to take swabs from Mr. Wielgosz. In my view they could use force to do so provided it was necessary and proportionate: see R v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 at para. 116; see also s. 25(1) of the Code. It is my view that the police officers used somewhat more force than was necessary. As Officer Stanley acknowledged in his testimony, there was no danger to the officers. There were no firearms in the room. Mr. Wielgosz was tired and the three officers had easy control over him in a small locked room. To be clear, this was not some form of major police brutality. It was a quick reaction by the officers to a slightly uncooperative detainee but it was an overreaction in my view. The point here on the voluntariness voir dire is that the officers did use somewhat more force on Mr. Wielgosz than was necessary.

At 1:15 AM Mr. Wielgosz asks if he can get out that night if he tells them "where Chappo is right now", referring the Mexican drug lord.

At 1:23 AM Mr. Wielgosz asks if he can talk to the "Detective" and says "I wanna get out, cause I really didn't do anything". Officer Stanley then says "Well then that's - , I guess, that's a good thing to talk about, isn't it. If you didn't do anything, that's, that's the number one thing to talk about". Mr. Wielgosz says "and I don't really wanna to fight with you guys either". Officer Stanley says "no we don't want to fight with you either. It's too much work." One of the officers says "you didn't win when you fight with us".

At 1:26 AM Officers Stanley, McLean and Morin leave Mr. Wielgosz. Just before leaving one of the officer says "I believe I'm taking him downstairs. Hold on I gotta get my keys". I take this to be a reference to taking Mr. Wielgosz down to the cells. As it happens, he is not taken downstairs to the cells.

At 1:30 AM, Officer Cooper, who will ultimately conduct the interview, enters the room for the first time. He tells Mr. Wielgosz that he is facing charges of aggravated assault, attempted murder, weapons dangerous, breach of recognizance and breach of probation. He asks him if he has any questions and he says he did not.

2:03 AM Thirty-two minutes later Officer Cooper returns to the interview room to serve him with documentation concerning the breach of probation and breach of recognizance. He tells him he will be back in "just a few minutes".

2:04 AM to 2:30 PM Mr. Wielgosz is then left alone again or another 26 minutes.

At 2:30 AM An officer brings the telephone in and tells Mr. Wielgosz that his lawyer is on the phone. This has apparently been arranged by Officer Cooper and duty counsel was apparently on the line. Mr. Wielgosz simply hangs up the phone. The officer then returns and removes the phone at about 2:32 AM

2:30 AM to 3:39 PM, Mr. Wielgosz is alone in the interview room Constable Cooper returns at 3:39 PM. He wakes up Mr. Wielgosz who is sleeping and offers him some water. Officer Cooper then leaves again at 3:40 AM.

3:49 AM Officer Cooper comes to conduct the interview. Mr. Wielgosz has been left for approximately 5 ½ hours in the interview room before the interview begins at 3:50 AM.

The Interview Begins

14As just indicated, at 3:39 AM Officer Cooper enters the room and wakes up Mr. Wielgosz and offers him a glass of water. Later on into the interview, he offers him food. At 3:50 AM the interview begins. Officer Cooper explains to Mr. Wielgosz that the room is being videotaped.

15Officer Cooper does not repeat formal rights to counsel or caution. He does say "I just want to cover off one more thing, you understand your rights, they been read to you, do you understand them?" Mr. Wielgosz responds "yes". He also confirms with Mr. Wielgosz that he had understood that duty counsel was on the phone and that he had simply hung up the phone and that he didn't want to talk to a lawyer. He tells him that if he changes his mind and speaks to a lawyer, to let him know and Mr. Wielgosz responds "why would I do that?"

16Mr. Wielgosz appears more coherent by the time the interview with Officer Cooper starts when compared to his first few hours in the interview room. Having said that, he repeatedly asks Officer Cooper what he can offer up to go home and is repeatedly told he won't be walking out that day but it does not seem to fully register in his mind. For example, at 4:02 AM Mr. Wielgosz says "once again, if I could tell you something if I could walk right there then that's a different story". Officer Cooper responds in part "it doesn't matter what you say in this room I can't have you walking out of this building tonight… you have to go to bail court, there is no option". At 4:04 AM, Mr. Wielgosz again says "so once again if I tell you something right there I won't be able to walk away?" to which Officer Cooper says "no". Almost immediately thereafter, at 4:06 AM, Mr. Wielgosz says "what would I have to say right there to get me out of this yo?" To which officer Cooper response "do you remember my answer? I can't change it'.

17Officer Cooper says that there is "no issue about what happened tonight, I mean we know what happened, you know what happened, you were there. The issue boils down to why, that's what I can't figure out, that's where I'm at at this point, so I'm hoping you can shed some light on that for me".

18Mr. Wielgosz says it is about "drugs". When Mr. Cooper asks him what he means, Mr. Wielgosz again says "what's the chances of me going home". At 4:01 am, Officer Cooper apparently attempts to give Mr. Wielgosz a secondary caution when he says the following: "I can't make any promises to you for anything you say to me. I'm not allowed to do that. And I should cover that off as well, prior to me coming in here you dealt with quite a few officers from the scene, from cells, all kinds of stuff um, if anybody made any suggestions to you, whether they threatened you or made any promises to you, you know, to come in here and make a statement, that's all off the table okay? Whatever you say in here is your own free will, it's between you and I; regardless of any conversations you had with other officers, okay? Whether they told you to say something or promise you said something to say something, you understand that? To which Mr. Wielgosz replies "yeah". (emphasis added).

19Shortly thereafter Mr. Wielgosz implicates himself in the stabbing of one of the victims and his plan before going over there as well as the motivation for the attack.

20After making various statements to the effect that he was going to cut the victim's head off to send a message to her son (a friend of Mr. Wielgosz's) who had allegedly sold him drugs which he said were laced with some form of poison, Mr. Wielgosz then says that a judge "would let me fully go". Officer Cooper expresses surprise at this suggestion and tells him that he has just said he wanted to cut someone's head off. Mr. Wielgosz's response is "let's just say I want to cut a hundred people's heads off, is that illegal?"

21Immediately following this discussion, Mr. Wielgosz says "how quick can I get out" to which Officer Cooper says "did you listen to what I just told you?" The interview ends shortly thereafter (5:10 AM) and Mr. Wielgosz is escorted to the cells at 5:25 AM.

Mr. Wielgosz's Testimony

22As indicated above, Mr. Wielgosz testified on the voluntariness voir dire. I have touched on some of his testimony concerning the incident with Officer Stanley, McLean and Morin. He testified that the DVD videotape of his interview had been altered to show him as saying things he didn't really say and that the tape had been spliced and reordered. I have already indicated that there was no such altering of the tape. However, it is my view that Mr. Wielgosz genuinely believes that the tape has been altered.

23Mr. Wielgosz denied that he had any mental health difficulties but he did acknowledge that he had been hospitalized in the past for mental health issues and had taken medication for that purpose although he had not taken it for months prior to the interview.

24While Mr. Wielgosz gave unusual testimony about the tape being spliced, in other respects he was quite fair in his testimony. For example, he did not exaggerate the physical interaction with Officers Stanley, McLean and Morin. He said the physical discomfort from their actions only lasted five seconds. Having said that, I don't accept Mr. Wielgosz's testimony that the officers involved in the hand swabs used words that ridiculed Mr. Wielgosz although Mr. Wielgosz may have misinterpreted what they were saying. Mr. Wielgosz appeared tired during this interaction.

25Notwithstanding that I have rejected Mr. Wielgosz's testimony that the tape was not altered, I accept much of what he said about how he felt at the time of the interview and during his time in the interview room. I accept that he felt physical pain from the handcuffs which were on tight for almost 3 hours. He said his hands were numb and cold from the handcuffs which I am sure was the case. I also accept that he had some kind of spinal cord or back injury which made it particularly uncomfortable for him to sit in a chair during the approximately seven hours he was in the interview room.

26I also accept that he felt degraded, humiliated and embarrassed by being left in his urine soaked underwear and by having to urinate in the corner of the room. I also accept that he didn't ask for new underwear because he didn't think they would have any underwear to give him.

27He said he felt "tired, drunk and worn-out" when he was speaking to Officer Cooper. He said that he just "wanted to go home and maybe sober up". I accept that he was intoxicated when he was first placed in the interview room but that by the time the interview started with Officer Cooper at 3:50 AM he was no longer as intoxicated as he had been. I note that the fact that he was initially intoxicated finds some corroboration in the testimony of Officer Phillips and Officer Propper. I do accept that he was "tired" and "worn out" when he was speaking to Officer Cooper and that there could have been some lingering effects from the alcohol. I also accept that he very much wanted to go home.

28I do think Mr. Wielgosz exaggerated regarding the food he was given (he said it was disgusting). I also do not accept his testimony that the cigarettes he was provided were "tampered with" although I cannot say if Mr. Wielgosz actually believes that they were. He may believe it.

29I also accept his testimony that his hope was to tell Officer Cooper something so that he could be released. In particular his hope was to provide information about other people (unrelated to his charges) in return for getting out. To be clear, the police never agreed to any such arrangement and Mr. Wielgosz does not suggest otherwise.

Law with Respect to Confessions

General

30There is no dispute that the Crown must prove beyond a reasonable doubt the voluntariness of all statements by an accused person to a person in authority. The leading cases, among others, are R v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 and R v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500. The voluntariness test is "sensitive to the particularities of the individual suspect": Oickle at paragraph 42. The onus on the Crown has been described by the Ontario Court of Appeal as a "heavy" one: R v. Sabri (2002), 2002 CanLII 44974 (ON CA), 166 C.C.C. (3d) 179 (Ont.C.A.) at para. 14.

31"The voluntariness inquiry focuses predominantly but not exclusively on the ability of the accused to make a meaningful choice whether to confess or not". All of the surrounding circumstances, including the mental health of the accused, should be considered in determining "whether the conduct of the authorities deprived the person of making a meaningful choice by reason of threats, inducements, oppression, coercion, trickery, misinformation or other abuse". Causation, which was a component of the traditional confessions rule, remains relevant in analyzing the relationship between the police conduct and the resulting confession: Sopinka, Lederman, Bryant and Fuerst, The Law of Evidence in Canada (4th edition) at paragraph 8.44. On this point, the learned authors point to Oickle at para 84 where the Court concluded that there was no causal connection between the police inducements and the confession.

32The Supreme Court of Canada stated in Oickle at paragraph 47:

"The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over and under inclusive. The trial judge should therefore consider all the relevant factors when reviewing a confession. There are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority including the making of threats or promises, oppression, the operating mind doctrine and police trickery." (emphasis added)

Inducements

33On the subject of inducements, the Supreme Court has explained that not all inducements will lead to the exclusion of a confession. Justice Iacobucci, for the majority of Court, stated in Oickle as follows at paragraph 57:

"In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interest to confess. This becomes improper only when the inducements, standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the suspect has been overborne." (emphasis added).

34As concerns inducements, Justice Iacobucci in Oickle went on to say "the most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise" (emphasis added): Oickle at para 57. The Supreme Court in Spencer pointed out that this comment from Justice Iacobucci was specifically in relation to inducements: Spencer at para 13.

35The Supreme Court in Spencer said that what occupies "centerstage" is not the quid pro quo, it is the question of voluntariness which is the overarching subject of the inquiry and that this point should not be lost in the analysis: see Spencer at para 19.

Operating Mind

36As concerns the operating mind requirement, this aspect of the test focuses on the accused's state of mind at the time he or she makes the statement. "The operative standard is best expressed as the operating mind test which requires that the accused possess a limited degree of cognitive ability to understand what is said and what he or she is saying, to comprehend the caution and understand that the evidence may be used in proceedings against her or him": Sopinka et al, The Law of Evidence in Canada, at paras. 8.77 and 8.81).

37I note that in R v. Whittle 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, the accused was a schizophrenic who suffered from auditory hallucinations. He was being investigated by police for an outstanding warrant related to unpaid fines for provincial offences. Upon his arrest on the warrants for the unpaid fines, the accused was cautioned more than once and given his Charter rights which he initially did not exercise. The accused said that he wished to clear the slate with respect to some "heavy matters" and ultimately confessed to murder and robberies. He then consulted with counsel after being advised of his Charter rights again. He did not follow his counsel's advice to remain silent. The Supreme Court found that he had the limited cognitive capacity to be fit to stand trial and the same test applied for the confession rule. Accordingly, his confession was admissible: see Sopinka et al, The Law of Evidence in Canada at para 8.79. Justice Sopinka stated for the Supreme Court in Whittle, supra at para 45, that the "operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused".

38In order for intoxication to render a statement involuntary, the accused's intellectual ability must be very significantly diminished: Sopinka et al, The Law of Evidence in Canada at para 8.86. Having said that, the fact that an accused person may be under the influence of drugs and alcohol may be a contextual factor even if the level of influence of alcohol and drugs is not such that, looked at alone, the statement would necessarily be rendered involuntary: see the discussion concerning R v. Hoilett (1999), 1999 CanLII 3740 (ON CA), 136 C.C.C. (3d) 449 (Ont. C.A.) below)

39The operating mind doctrine must be considered together with the question of threats, promises and oppression. In some cases, the accused may meet the operating mind test but nevertheless the suspect's mental capacity in combination with other factors may render the statement involuntary. The ultimate question is one of voluntariness and the trial judge should analyze each factor: see Sopinka et al, The Law of Evidence in Canada at para 8.83 referring to Spence, supra at page 508; see also Paciocco and Stuesser, The Law of Evidence (7th edition) at page 358.

Oppression

40The Supreme Court has recognized "oppression" as a freestanding ground capable of leading to a violation of the voluntariness rule: Sopinka et al, The Law of Evidence in Canada at para. 8.63. "An atmosphere of oppression may be created in the circumstances surrounding the taking of a statement, although there may be no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence": R v. Hobbins, 1982 CanLII 46 (SCC), [1982] 1 S.C.R. 553 at pages 556-57.

41The presence or absence of oppression is a factual question and will depend upon the circumstances of each case. Factors which may create oppression include depriving a suspect of food, clothing, sleep or medical attention or questioning a person for a prolonged period of time in an excessively aggressive or intimidating manner: Sopinka et al, The Law of Evidence in Canada at para 8.63.

42Returning again to Sopinka et al., The Law of Evidence in Canada at para 8.63 the authors state "Canadian courts may exclude statements where the conduct of the police officers or the circumstances of the detention raise doubts as to whether the accused was able to make an effective choice to speak to authorities or remain silent" (my emphasis). "In oppressive circumstances, the will of the accused to choose to speak or remain silent may be overborne, thereby impairing the fairness of the criminal process." Sopinka et al., The Law of Evidence in Canada at para 8.67.

43In Oickle, the Supreme Court referred with approval to R v. Hoilett (1999), 1999 CanLII 3740 (ON CA), 136 C.C.C. (3d) 449 (Ont. C.A.), one of the leading cases on oppression in the voluntariness context. The Supreme Court said as follows at para. 59 and 60 of Oickle:

A compelling example of oppression comes from the Ontario Court of Appeal's recent decision in R v. Hoilett (1999), 1999 CanLII 3740 (ON CA), 136 C.C.C. (3d) 449. The accused, charged with sexual assault, was arrested at 11:25 p.m. while under the influence of crack cocaine and alcohol. After two hours in a cell, two officers removed his clothes for forensic testing. He was left naked in a cold cell containing only a metal bunk to sit on. The bunk was so cold he had to stand up. One and one-half hours later, he was provided with some light clothes, but no underwear and ill-fitting shoes. Shortly thereafter, at about 3:00 a.m., he was awakened for the purpose of interviewing. In the course of the interrogation, the accused nodded off to sleep at least five times. [page39] He requested warmer clothes and a tissue to wipe his nose, both of which were refused. While he admitted knowing that he did not have to talk, and that the officers had made no explicit threats or promises, he hoped that if he talked to the police they would give him some warm clothes and cease the interrogation.

Under these circumstances, it is no surprise that the Court of Appeal concluded the statement was involuntary. Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is not voluntary.

44In Hoilett, the Court of Appeal stated (at para 28) that "it is impossible to say that a court could be satisfied beyond a reasonable doubt that the appellant made his statement to police voluntarily in the sense that it was not induced by the oppressive conduct of the police."

Cautions

45The Supreme Court of Canada in R v. Singh 2007 SCC 48 at para 31 refers to the common form of police caution as being "you are charged with… Do you wish to say anything in answer to the charge? You are not obliged to say anything but whatever you do say may be given in evidence". I note as well that the Supreme Court of Canada in Singh confirms that the absence of a caution will not necessarily compel the court to exclude a statement: referring with approval at para. 31 of Singh to Boudreau v. The King, 1949 CanLII 26 (SCC), [1949] S.C.R. 262. Nevertheless, referring to the practice of a caution being given to a suspect that whatever he or she says may be used in evidence against him or her, the Supreme Court has said that "the presence or absence of a warning will be a factor and, in many cases, an important one" in determining the voluntariness or not of a statement (see Boudreau at page 5 LexisNexis version).

46In addition, the Supreme Court notes that if a detainee exercises his s. 10(b) Charter rights to counsel, he will presumably have been informed of his right to remain silent and the overall significance of the caution may be diminished: see Singh at para 33.

Application of the Law to the Case Before the Court

47In my view, the Crown has not met its heavy onus to prove the voluntariness of the statement beyond a reasonable doubt. In particular, I am not satisfied that the will of Mr. Wielgosz to choose to speak to police or to remain silent was not overborne by the oppressive circumstances he was subjected to. I have arrived at this conclusion not because of any one fact or factor but rather because of a consideration of all of the circumstances. I consider that Mr. Wielgosz was subjected to oppressive conditions and I will explain my findings in this regard below. Further, while I consider that Mr. Wielgosz had an operating mind, he was intoxicated and somewhat incoherent when he was first cautioned at 10:24 PM and he was not re-cautioned when he was awoken in the middle of the night at 3:40 AM to begin his interview. Further, the police had information that he suffered from mental health difficulties and although there is no medical evidence before the Court on this voir dire to support this point, there were reasons to be concerned about his state of mind. Not only was he not re-cautioned, he was told by the officer in charge that "whatever you say in here is your own free will, it's between you and I; regardless of any conversations you had with other officers" (emphasis added). I have a reasonable doubt about whether Mr. Wielgosz truly understood that what he said could be used against him.

48In all of the circumstances, I am left with a reasonable doubt to whether or not the statements he made were made voluntarily. I will review the particulars concerning my conclusions below.

Oppressive Circumstances

49As I have said, I consider that Mr. Wielgosz was subjected to oppressive conditions. I will examine the various factors that contributed to the oppression in my view.

(i) The Handcuffs

50When Mr. Wielgosz was arrested at 10:18 PM, like most suspects, he was handcuffed at the back. Once he arrived at the police station he was put in an interview room at the station at 10:38 PM. Mr. Wielgosz was left handcuffed at the back sitting in a chair in an interview room until 1:10 AM. Accordingly, he was left handcuffed for almost 3 hours (10:18 PM until 1:10 AM). For much of that time, he was ignored. I note that no one came to speak to him from 11:32 PM to 1:09 AM, notwithstanding that Mr. Wielgosz was repeatedly calling out variously "yo", "officer" and "sir please" between 11:37 PM and 11:44 PM. I note that the officer in charge, Officer Cooper, testified that he was aware that Mr. Wielgosz was calling out apparently during this time but he chose to not have any one check on him. Mr. Wielgosz testified on the voluntariness voir dire but did not specifically explain why he was calling out during this time. While it is not known for certain, it seems likely to me that he was calling out about the cuffs being on too tight as virtually the very first thing he said when the officers finally came in at 1:09 AM is "can you loosen these?". This is consistent with his testimony on the voluntariness voir dire that his hands were numb and cold from the handcuffs, which must have been the case in my view.

51It was the Crown's position that he was kept handcuffed for this period of time because it was necessary in order to prevent the destruction of evidence that might be on his hands and to give the officers time to do hand swabs (and for office safety). There was conflicting evidence from the police as to who had directed that the cuffs be left on and why. Initially, Officer Cooper, the officer in charge, said that the decision to leave the cuffs on had nothing to do with him, that it would be the escorting officer who would decide. His testimony changed on this point (when he testified further on a different day) and said that he had directed that the cuffs be left on to preserve evidence and for officer safety.

52Officer Stanley, the forensic officer responsible for doing the hand swabs, testified that when he first became involved that night he told the investigators that they should do everything they could to preserve evidence and that the accused person should not be given an opportunity to wash his hands but that he did not direct that the handcuffs be left on.

53Officer Stanley acknowledged that there were other ways to ensure that Mr. Wielgosz did not eliminate evidence from his hands. His hands could have been uncuffed and bagged although this would require supervision.

54Officer Stanley explained that the other forensic identification officers were busy that night and that was why it took time to get to Mr. Wielgosz. There were three people working in the forensic group including himself and the other two were attending to a fatality apparently although Officer Stanley had nothing in his notes regarding this point; he said he simply remembered it. Given that the officer had no note of what the others in his group were doing that night, I am not satisfied that they were occupied with a fatality although they may have been. In any event, it does not have any material bearing on the voluntariness voir dire.

55Officer Mclean, the transporting officer, said it was not he who decided to leave the cuffs on. He said that someone would have instructed him to leave the cuffs on, but that he did not know who.

56To summarize on the handcuffs point, notwithstanding Officer Cooper's initial answer that he had nothing to do with the handcuffing it does seems likely to me that either Officer Cooper or Detective Kirkpatrick (who had a supervisory role at the station that night) told the officers escorting Mr. Wielgosz to leave the handcuffs on. The purpose was at least in part to preserve evidence. I don't believe that the handcuffs were kept on for three hours for officer safety as was suggested. It is also my view that police were indifferent as to whether the handcuffing of Mr. Wielgosz for three hours would be painful for him in any respect. It was of no concern to them at all. Indeed, when he was calling out to the officers from 11:37 to 11:44 PM, Officer Cooper apparently heard him and ignored him. In my view, to leave Mr. Wielgosz handcuffed for almost three hours such that his hands became cold and numb was oppressive notwithstanding that the handcuffing was associated with a valid investigatory objective. This observation is separate and apart from the fact that he was also barefoot, shirtless and clothed only in urine soaked underwear during this same period of time.

57There are apparently no policies for how long prisoners are to be kept handcuffed. I note that in R v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, the Supreme Court of Canada dealt with a sexual assault case involving handcuffing for preservation of evidence purposes. In that case, the person under arrest was charged with sexual assault and the police wished to do a penile swab which might potentially identify bodily evidence from the complainant. The central issue in the case was whether the common law power of search incident to arrest permitted a penile swab to be taken and whether that was consistent with section 8 of the Charter. A majority of the Court concluded that a penile swab could be taken incident to arrest and in certain circumstances, and that it would not violate section 8 of the Charter. In that case, the accused person was handcuffed with his hands behind his back to a pipe for 30 to 40 minutes in a "dry cell" so as to prevent him from destroying evidence. One reason the majority of the Court concluded that a warrant was not necessary was that a penile swab could be done more quickly if it was part of a search incident to arrest. If the police had to keep someone handcuffed "for several hours" in order to obtain a warrant, the person would be in an "uncomfortable and potentially degrading position" (para 65).

58I understand and appreciate that the Saeed case involved an entirely different issue, the question of s. 8 Charter compliance and the penile swab. Nevertheless, the Court's comments that somebody being handcuffed for several hours could leave them in an "uncomfortable and potentially degrading position" provides some support for my view that the handcuffing of Mr. Wielgosz for almost three hours was oppressive.

(ii) The Urine Soaked Underwear and Carpet

59Let me turn to the question of clothing including the urine soaked underwear and the decision to leave Mr. Wielgosz for questioning in the interview room sitting beside a large spot of urine in the carpet. To briefly summarize on this issue, when Mr. Wielgosz was arrested he was wearing only his underwear which was already wet with urine and the police knew this. When he was initially left in the interview room he called out at 10:43 PM and said "yo" twice to which there was no response. It was not that loud and it seems likely that the officers simply did not hear him. It also seems very likely to me that he was calling out for bathroom assistance as he suggested in his testimony although he was confused on this point as to precisely what he had said. In any event, he stood up and urinated in the corner of the interview room at 11:26 PM. The amount of urine he voided from his bladder was extensive. There can be no dispute that his underwear was completely urine soaked at that point as was the carpet in the small interview room. After he had just urinated, the police asked him if he wanted to use the washroom and if he needed anything else and he said no. They then left him as is for just over another hour and a half.

60Officer Stanley, the forensic officer, entered the room at 1:09 AM and Mr. Wielgosz was uncuffed at that point and the swabs taken. After about another 15 minutes, he was provided with a blue jumpsuit which was clean and dry but it was put on over his urine soaked underwear. Mr. Wielgosz testified that he did not ask for underwear because he didn't think they had any. He was left in this underwear throughout the interview process and, in fact, as I understand it, he did not get clean underwear until the evening of the next day when he was put in jail after attending bail court.

61I understand and appreciate that the police are not running a spa or hotel with bathrobes, slippers and towel service. However, they did have clean jumpsuits available which Mr. Wielgosz ultimately received about two hours later at 1:26 AM but which were put over his wet urine soaked underwear. Further, I also note that Mr. Wielgosz's parents were at the police station speaking to the officers but no consideration was given to asking them if they could get clean underwear for Mr. Wielgosz.

62To summarize, he was left handcuffed from 10:18 PM to 1:10 AM during which time all he had on was his urine soaked underwear. He was shirtless and barefoot. He was left with urine soaked/soiled underwear throughout the entire arrest and interview process from 10:18 PM until the interview concluded at 5:25 AM. Later on in the evening of October 11, he apparently received underwear at the jail.

63Mr. Wielgosz testified that he was cold in the interview room and I accept his evidence on this point. This would have been prior to receiving the jumpsuit.

64After Mr. Wielgosz had urinated in the corner he apologized to the officers. The police gave no consideration to moving him to a different interview room but rather left him sitting in a chair beside a large spot on the carpet now soiled with his urine. When asked why he was not moved to a different interview room, the officer in charge said "I would typically not change rooms, when someone's been on video already." He said he would have to "answer for it".

65To be clear, it is obvious from the video that this was a small interview room and that there was a significant amount of urine in the carpet. Not surprisingly, Officer Stanley agreed in his testimony that there was a "distinct smell of urine" in the room.

66I accept that Mr. Wielgosz felt degraded and humiliated by being left in his urine soaked underwear. I further accept that he felt humiliated and embarrassed by having urinated in the corner of the room, when he knew that proper washrooms were available nearby but he did not think he could access them. As he aptly said in his testimony on the voir dire, "I am a human being, right".

67It seems clear to me that the police were indifferent to Mr. Wielgosz's discomfort and lack of dignity being left in urine soaked underwear and kept in an interview room with the carpet which was also soaked with his urine. I have concluded that the attitude of the police was that if Mr. Wielgosz soaked his underwear with urine and urinated in the interview room, the police were more than happy to leave him in the underwear and in that room. It was of no concern to them. It was his own fault as far as they were concerned.

68I note that in two cases my colleagues on the Ontario Court of Justice have considered cases where police left prisoners in urine soaked clothing for a number of hours: see R v. Sathymoorthy 2014 ONCJ 318 (per Feldman J.) and R v. Stoney (2015), 90 M.V.R. (6th) 129 (per Duncan J.). In both cases, the judges found that the accused person's dignity was undermined and that they endured humiliation. Justice Feldman called the Charter violation in Sathymoorthy "egregious". In both cases, a section 7 Charter violation was found and a stay entered under s. 24(1) of the Charter. I note three further points relating to or arising out of these cases. First, the central fact leading to the Charter violation in both cases involved simply being left in urine soaked clothing (although the Sathymoorthy case also involved some mocking of the prisoner) and included no facts similar to this case such as the extended use of handcuffs and sleep deprivation. Second, a stay under s. 24(1) of the Charter is a rare remedy granted in only in the clearest of cases, but both judges thought the case before them met that standard. Third, while these cases did not involve a voluntariness issue, the Supreme Court has noted that there is "considerable overlap between the inquiry into voluntariness and the review under s. 7 of the Charter in respect of an alleged breach of the right to silence": see Singh at para 24. In summary, I consider that the Sathymoorthy and Stoney cases provide some support for my conclusion that leaving Mr. Wielgosz in urine soaked underwear as I have described was oppressive.

(iii) The Use of Force

69As discussed above, while the police could use force to obtain the hand swabs, they could only so in a manner that was necessary and proportionate. It is my view that the police officers used somewhat more force than was necessary when they dealt with Mr. Wielgosz shortly after 1:10 AM. As discussed, it was a quick reaction by the officers to a slightly uncooperative detainee. It was an overreaction in my view. It contributed somewhat to the oppressive circumstances but with or without this event, my conclusion would be the same on voluntariness.

(iv) Sleep Deprivation

70Mr. Wielgosz was kept in an interview room sitting in a chair from 10:38 PM until 5:25 AM. As has already been indicated, until 1:10 AM he was handcuffed and in his underwear only, barefoot and shirtless. The decision was apparently made to put him in an interview room out of convenience for the officers dealing with him.

71Officer Cooper said that it would be easier for police for him to be in an interview room so they could serve him with documents and to get him food. I don't accept that he was kept in the interview room because it would be easier to give him food.

72Officer Cooper testified that he had to wake Mr. Wielgosz up as he slept in a chair at 3:39 AM. Officer Cooper testified that he did an assessment of Mr. Wielgosz at the time and that if he had seemed too tired, he would not have proceeded with the interview. I find this to be a doubtful statement. There was no way the police were not going to proceed with that interview at that time.

73In any event, Mr. Wielgosz was left attempting to sleep in a chair. Had he been put in the cells he would have been able to lie down (on a concrete slab) presumably with a blanket. I also accept Mr. Wielgosz's testimony that he has a bad back and that it is and was difficult and painful for him to sit in a chair for an extended period of time.

74When the officers came in to take swabs on his hands. Mr. Wielgosz says "take me down to sleep" and "I am tired man. So tired man." One of the officers says that he is anxious to put him downstairs (in the cells) so he can have a sleep. He says he knows that Mr. Wielgosz is tired. During the same timeframe, another officer says "I believe I'm taking him downstairs. Hold on I gotta get my keys." I can only infer that the direction given to the officer must have been to leave Mr. Wielgosz in the interview room and not to put him in the cell where it would be easier for him to sleep.

75It is apparent to me that Mr. Wielgosz did manage to get a fair amount of sleep sitting in the chair. However, it could not have been a particularly restful sleep and I accept his testimony that he was tired and worn out by the time it came to the interview at 3:50 AM. I also accept that it caused him back pain. In my view, the police at best were indifferent to whether he was tired or not and no matter what way the matter is looked at, the interview took place in the middle of the night namely from 3:50 AM to 5:25 AM, at a time when Mr. Wielgosz was tired and worn out. This contributed to the oppressive circumstances.

Operating Mind and the Failure to Re-caution Mr. Wielgosz

76The Supreme Court in Whittle held that a person will have an operating mind if they possess the limited cognitive capacity to understand what they are saying and to comprehend that the evidence they give may be used in proceedings against them. It is a low bar that has been set in order to have an operating mind.

77I am satisfied that Mr. Wielgosz had an operating mind although I do have some concerns in this regard and I do not find that he specifically knew that what he said could be used against him, although he may have known this. Early in his time in the interview room he is incoherent and nonsensical. Throughout the interview, he asks repeatedly about "what would it take for me to go home tonight" and he is essentially told there is nothing he can do, a point which does not seem to register with him. He talks "about a quarter ki". He also talks of trying to give the officers information about "Chappo", the Mexican drug lord. After he urinated in the interview room, one of the officers says "you have obviously gone to the bathroom there" and Mr. Wielgosz mumbles in a nonsensical manner saying "supposedly ki's of coke".

78When Mr. Wielgosz was initially arrested at 10:18 PM on October 10, 2016 he was not immediately given his rights to counsel or informed of his charges or given a caution. Apparently the arresting officer thought it best to get him out of the premises first. Having said that, there is no Charter application before me. Officer McLean testified that at 10:24 PM, he told Mr. Wielgosz what he was charged with; and he provided rights to counsel and a caution at that time. In terms of the wording of the caution, Officer McLean testified that he read the standard language contained in his police notebook to the effect that Mr. Wielgosz did not need to say anything but that if he did say something it could be used in evidence against him. According to Officer McLean, Mr. Wielgosz responded "I hear you man". Given Officer McLean's other evidence that he initially gave that there was no physical contact with Mr. Wielgosz at any time and given that the video demonstrates otherwise, I have some concern about Officer McLean's recollection on the caution point although he was not challenged on it. Mr. Wielgosz was not asked in his testimony at trial as to whether he was cautioned by Officer McLean but suggested that he did not remember walking into the interview room (which would have been just a few minutes after the apparent caution). He said he was in a blacked out state. Notwithstanding my concern about Officer McLean's conflicting evidence on the physical contact point, I do accept that Officer McLean did give him rights to counsel and the standard caution at 10:24 PM. Nevertheless, I am of the view that Officer Cooper should have a re-cautioned Mr. Wielgosz at 3:50 AM and I will explain why.

79I understand that the law is such that whether a person is cautioned or not does not necessarily determine whether the statement will be ruled voluntary. Nevertheless, the question of a caution is important and must be considered in context. What was the context here? Mr. Wielgosz was arrested at 10:18 PM and cautioned at 10:24 PM. He was charged with, among other things, attempted murder. Based on his appearance on videotape at 10:38 PM and thereafter and Mr. Wielgosz's testimony, it is apparent to me that when he was first cautioned he was in a somewhat incoherent state due to intoxication or some other reason. To be clear once again, I am not saying that his intoxication or state of mind would cause him not to have an operating mind.

80In addition, the police also had information that Mr. Wielgosz was a schizophrenic. In fact, Officer Cooper testified that knew right away as soon as he heard Mr. Wielgosz's name as a suspect in the case that the Peel police had information about him having mental health issues. Officer Cooper had had no direct dealings with Mr. Wielgosz in the past, but he had heard about him. In his testimony on the voir dire, Mr. Wielgosz denied having mental health difficulties although he acknowledged that he had been hospitalized in the past for mental health issues and had taken related medication in the past.

81There was no medical evidence on the voir dire concerning whether Mr. Wielgosz in fact suffers from schizophrenia and I cannot say one way or the other on this record. Nevertheless, Mr. Wielgosz's state of mind as evidenced by the content of what he was saying (including about Chappo, ki's of coke and his repeated questions about what it would take to go home (to which he is repeatedly told he is not going home)), and information the police had that he suffered from mental illness, should have led the police to be concerned about his state of mind. Further, as I have already stated, the caution he had been given was done almost six hours before the interview and Mr. Wielgosz had been sleeping off and on in a chair in urine soaked underwear and he is handcuffed for about half of that time. Other officers who were dealing directly with him had noted at 1:09 AM that he was tired and had thought he would be permitted to sleep in a cell. I have already said that he was tired and worn out at the time the interview started in the middle of the night at 3:50 AM. He had chosen not to talk to a lawyer. All of these circumstances should have led the police to re-caution him on video when the interview started so as to do their best to make it absolutely plain to him that if he wished to talk, what he would say could be used against him.

82It appears to me that Officer Cooper recognized the need to restate Mr. Wielgosz's rights and to give him a caution and he attempted to do so but did not do so properly. As indicated above, early in the interview Officer Cooper says "I just want to cover off one more thing, you understand your rights, they've been read to you, do you understand them?" Mr. Wielgosz responds "yes". He also confirms with Mr. Wielgosz that he had understood that duty counsel was on the phone and that he had simply hung up the phone and that he didn't want to talk to a lawyer. He also tells him that if he decides he wants to speak to a lawyer that he should simply tell Officer Cooper. Mr. Wielgosz responds "why would I do that?" The foregoing exchange appears to be an attempt at giving Mr. Wielgosz his rights to counsel. To be clear, there is no alleged violation of his rights to counsel and I find none. I do find it odd that rights to counsel would be given by saying "you understand your rights, they have been read to you" but it was appropriate that the officer told him that he could call a lawyer any time he wished and I accept that Officer McLean gave him rights to counsel shortly after he was arrested. On the other hand, when someone in these circumstances charged with attempted murder asks why they would need a lawyer, it would be prudent to caution the person.

83Officer Cooper then starts into the interview but returns to the concept of a secondary caution and says "and I should cover that off as well, prior to me coming in here you dealt with quite a few officers from the scene, from cells, all kinds of stuff um, if anybody made any suggestions to you, whether they threatened you or made any promises to you, you know, to come in here and make a statement, that's all off the table okay? Whatever you say in here is your own free will, it's between you and I; regardless of any conversations you had with other officers, okay? Whether they told you to say something or promise you said something to say something, you understand that? To which Mr. Wielgosz replies "yeah". (emphasis added).

84Mr. Wielgosz did not comment in his testimony at trial on the "it's between you and I" statement. Having said that, it is the Crown's onus on the voluntariness voir dire.

85To state the obvious, from the police's perspective, the interview with Mr. Wielgosz was anything but "between you and I", yet this is what Mr. Wielgosz was told when the police woke him up in the middle of the night to interview him in an attempted murder case.

86To summarize, although I consider that Mr. Wielgosz had an operating mind, his state of mind remains a relevant factor to be considered on the voluntariness inquiry. As explained, I also consider that he should have been re-cautioned at the outset of the interview. Considering all of the circumstances, I am left with a reasonable doubt as to whether Mr. Wielgosz truly understood that what he was saying could be used against him. Even if I am wrong on this point, I nevertheless consider that Mr. Wielgosz' state of mind and the oppressive circumstances present in this case undermine the Crown's ability to prove voluntariness beyond a reasonable doubt in this case.

Discussion and Summary

87As indicated above, I have concluded for the reasons set out above that there is a reasonable doubt as to the voluntariness of the statement by Mr. Wielgosz. In particular, I am not satisfied that the will of Mr. Wielgosz to choose to speak to police or to remain silent was not overborne by the oppressive circumstances. In addition, while I am satisfied that he had an operating mind, I have also concluded that he should have been re-cautioned prior to giving his statement. Before concluding these reasons, I wish to address a number of further points.

88As indicated above, causation remains a relevant consideration in the voluntariness analysis. For example, the Supreme Court in Oickle at para 84 found that there was no causal connection between the police inducements and the confession in that case. In this case, the Crown argues that there was no oppression and that to the extent that there was, it didn't bring about the statement. The Crown essentially argues that there was no causation between any of the circumstances and the statement. I also note that Mr. Wielgosz did not testify that the oppressive circumstances led him to make a statement. On the other hand, he also did not testify that the oppressive circumstances were of no consequence to him. I have already found that there were oppressive circumstances and that these caused him humiliation, embarrassment and pain, among other things.

89In my view, Mr. Wielgosz does not have to prove a causal link between the oppressive circumstances and his statement. The onus is on the Crown throughout to prove voluntariness beyond a reasonable doubt. Where there are oppressive circumstances as there are here then absent the Crown being able to prove that there was no causal link and where the Court concludes that it is not satisfied beyond a reasonable doubt that the statement was not brought about by the oppressive circumstances, then the Crown's application to introduce the statement as being voluntary must fail. In my view, this is what the Ontario Court of Appeal in Hoilett was saying when it held that "it is impossible to say that a court could be satisfied beyond a reasonable doubt that the appellant made his statement to police voluntarily in the sense that it was not induced by the oppressive conduct of the police" (emphasis added).

90As a separate point, I acknowledge that from almost the first moment that he was in the interview room, Mr. Wielgosz was anxious to talk to the police. He wanted to cut a deal to go home. However, it is also apparent to me based on the interview and Mr. Wielgosz's testimony that he wanted to give the police information about his friends in unrelated cases, not information about himself.

91I also acknowledge the point that Mr. Wielgosz received water and food just before (water) and during (food) the actual interview which started about 3:50 AM. He was also given a couple of cigarettes and I do not consider these as being inducements affecting the voluntariness issue. Further, I recognize that if one looks at the actual interview which ran from 3:50 AM to 5:10 AM, Officer Cooper was polite to Mr. Wielgosz and the questioning was not unreasonable. However, in my view, it would be wrong to simply look at the interaction between 3:50 AM and 5:10 AM. It is the context in which this part of the interview occurred that must be considered and I have reviewed that context in some detail above. It is that context that supports my conclusion regarding the failure of the Crown to prove voluntariness beyond a reasonable doubt.

92For the reasons set out above, the Crown's voluntariness application to introduce the statement of Mr. Wielgosz is dismissed.

Reasons released: June 18, 2018

Justice Paul F. Monahan

[1] These reasons were available for release on February 12, 2018 but Mr. Wielgosz apparently refused to leave his cell at the institution where he is in custody to receive them.