Court of Appeal for Ontario

Date: 20210723 Docket: C63977

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Patricia Morgan Appellant

Counsel: Breana Vandebeek, for the appellant Tom Lemon and Eli Lo Re, for the respondent

Heard: April 21, 2021 by video conference

On appeal from the conviction entered on May 17, 2017 by Justice Irving W. André of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant appeals her conviction for the importation of just over one kilogram of cocaine that she had ingested in the form of about 127 capsules. At issue is the voluntariness of the video statement that she gave to an RCMP officer following her arrest at Pearson International Airport. She submits the statement was not voluntary because it was made under oppressive circumstances and in exchange for an improper inducement.

[2] For the reasons that follow, we dismiss the appeal.

Factual Background

[3] The appellant had ingested the cocaine capsules while in Jamaica before her return to Toronto on July 12, 2014. On arrival at Pearson International Airport at around 7:00 p.m., she spoke briefly with Canada Border Services Officer (“BSO”) Cullen and answered routine questions. She told him that she had gone down to Jamaica with her children about three weeks before but was returning alone and that she was employed by an airline. BSO Cullen referred the appellant to secondary inspection where he searched her bags and asked the appellant further standard questions about the packing and contents of her bags. The appellant confirmed the bags were hers and that she had packed them and was aware of their contents. She provided further information about her employment, income, children, the purchase of her airline ticket, and her stay in Jamaica. BSO Cullen did not record his communications with the appellant.

[4] At 9:18 p.m., BSO Cullen turned custody of the appellant over to BSOs Walker and Woloszanskyj who provided a secondary caution. She was moved to a search room and a pat-down search was conducted. She contacted duty counsel at 9:28 p.0m., first leaving a message and then speaking with counsel at 9:58 p.m. At 10:03 p.m., a strip search was conducted. BSOs Walker and Woloszanskyj engaged the appellant in conversation but did not record it. BSO Walker testified that this was “general conversation” and “casual … sitting, chatting”.

[5] Over the course of the next ten hours, the appellant was watched carefully. She was given food and water. She was given her sweater from her carry-on bag. She was asked on several occasions whether she wished to provide an x-ray or go to the hospital. She refused. She requested an opportunity to speak with duty counsel again at about 1:24 a.m. and spoke with counsel some ten minutes later. At about 3:33 a.m., the appellant passed the first sample of suspected cocaine and was placed under arrest. She was again given her rights to counsel and provided with a third opportunity to consult with counsel, which she accepted. She was asked again if she wanted to go to the hospital. She refused. At 4:42 a.m., BSO Walker requested the assistance of EMS and at 4:48 a.m. the EMS attendants arrived and assessed the appellant who again refused to go to the hospital.

[6] The appellant remained in the custody of BSOs Walker and Woloszanskyj until 7:44 a.m. on July 13, 2014. At that point, she was transferred into the custody of RCMP Constables Castrillon and Edwards. Cst. Castrillon read the appellant her rights to counsel and gave a primary and secondary caution. At 8:08 a.m., the appellant was taken to the hospital by Cst. Edwards for an assessment to ensure she was fine. During the appellant’s time in hospital, Cst. Edwards engaged the appellant in casual conversation. At one point in the conversation, Cst. Edwards observed that, while she had no power over the appellant’s release, Canadian citizens without criminal records were typically released on bail. Cst. Edwards testified that she impressed upon the appellant that only the courts could rule on the appellant’s release. These conversations were not recorded and Cst. Edwards took limited notes.

[7] The appellant was examined and cleared by medical personnel who discharged her back into custody at 1:03 p.m. She was transported back to the airport. There, the appellant was provided with additional opportunities to consult with counsel, which she declined. She was lodged in a dry cell with a bench, mattress, blankets, food and water so that she could pass the remaining pellets.

[8] Starting at 6:49 p.m., the appellant gave a videotaped statement to Cst. Edwards. Prior to giving the statement, the appellant was given another opportunity to speak with counsel, which she declined. Cst. Edwards spoke to the appellant before taking her statement but without taking notes. However, the video recording captured a portion of this exchange, including Cst. Edwards’ statement that “you’ll go in front of a judge or [justice of the peace], and at some point you’ll be released. We discussed that earlier right?”. Cst. Edwards then added “at that point you’ll get your luggage back”. The appellant proceeded to give a statement in which she gave information about her involvement in the importation scheme.

[9] After the appellant had given the video statement, and at her request, Cst. Edwards placed her children’s passports into her luggage for safekeeping until the appellant’s release. Cst. Edwards again told the appellant that the issue of her release was up to the courts, and that she would be provided her luggage and the passports upon release. When the appellant was released three days later, she attended at the police station and was given her passport and her luggage with her children’s passports.

First Trial and Mistrial

[10] The first trial took place before Barnes J. sitting with a jury. The Crown brought a preliminary application to establish the voluntariness of four sets of statements made by the appellant, including: 1) her statements to BSO Cullen, 2) her statements to BSOs Walker and Woloszanskyj, 3) her statements to Csts. Castrillon and Edwards before the video, and 4) the videotaped statement. BSOs Walker and Woloszanskyj and Csts. Castrillon and Edwards testified on the voluntariness voir dire. The appellant also testified. In reasons reported at 2017 ONSC 432, Barnes J. concluded that there was an inadequate record of the first three sets of statements made by the appellant to BSOs Cullen, Walker and Woloszanskyj and that those statements would not be admitted. Barnes J. determined that the video statement made to Cst. Edwards was voluntary and admitted it.

[11] The first trial ended in a mistrial because of the late Crown disclosure of Cst. Edwards’ disciplinary history: in 2011, she had been reprimanded for having improperly used her special clearance pass to expedite her son’s passage through the airport.

Second Trial and Conviction

[12] The second trial proceeded before André J., and a second voluntariness voir dire was held to determine the admissibility of the appellant’s video statement. The Crown no longer sought to admit the appellant’s other statements ruled inadmissible by Barnes J. The parties agreed that the transcripts of the evidence of BSOs Walker and Woloszanskyj and Cst. Castrillon would be admitted into evidence at the voir dire to obviate the need for those officers to testify again. Cst. Edwards testified at the voir dire. The appellant did not testify on the second voir dire nor was the transcript of her evidence on the voir dire from the first trial put into evidence. The trial judge determined that the appellant’s video statement was voluntary and admitted it into evidence.

[13] At trial, the appellant contested the Crown case. She testified that she had ingested the cocaine under duress. She was convicted by the jury.

Analysis

[14] It is well established that to render admissible a statement made by an accused to a person in authority the Crown need only adduce some evidence that the alleged statement was made and prove beyond a reasonable doubt that the statement was voluntary. Voluntariness requires that the statement is made without “fear of prejudice or hope of advantage” and that it represents the product of an operating mind that has not been overborne by oppressive and inhumane circumstances or police trickery. See: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 11-15; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47-67; R. v. Gauthier, [1977] 1 S.C.R. 441, at p. 448; R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493, at paras. 53-54.

[15] Here there is no question about the threshold reliability of the recording of the appellant’s video statement. The appellant challenges its voluntariness. She says the trial judge erred in failing to find that the video statement was given under oppressive circumstances because she was not permitted to sleep and was deprived of her blood pressure medication in the almost 24 hours that preceded the giving of the video statement. She argues the trial judge should have disregarded the officers’ evidence about the circumstances surrounding the video statement because of their failure to make proper notes of their conversations with her and the inconsistencies among their accounts.

[16] We are not persuaded by these submissions.

[17] The trial judge was entitled to accept the officers’ evidence concerning their treatment of and interactions with the appellant while she was in their custody. It is of no moment that Barnes J. had ruled some of the appellant’s other statements to be inadmissible at the first trial due to the inadequacy of the officers’ notes. At the second trial, the Crown no longer sought to prove the admissibility of those utterances that Barnes J. had already determined were insufficiently documented, and the officers’ notes and recollections were adduced simply to establish the circumstances surrounding the appellant’s videotaped statement. The parties agreed to admit the transcripts of the officers’ evidence of these circumstances, and the appellant elected not to testify on the voir dire. It was open to the trial judge to rely on the officers’ evidence of the context leading up to the videotaped statement, even if such notes had been insufficient to establish the admissibility of the appellant’s other statements at the first trial.

[18] The trial judge thoroughly reviewed the circumstances surrounding the appellant’s video statement, including that the officers regularly checked on the appellant to ensure that she was well and did not require medical attention. These actions were reasonable and necessary to monitor the appellant’s health; she had ingested about a kilogram of cocaine and was at risk of suffering grave consequences if any of the pellets broke open while in her system.

[19] Importantly, there was no evidence before the trial judge that the appellant was exhausted or ill and could not voluntarily give her statement. Indeed, the appellant’s discharge from hospital belies this suggestion. Moreover, the evidence of the officers and the video statement itself support the trial judge’s conclusion that there was no evidence that a lack of sleep created an oppressive situation. The appellant did not complain of hunger, fatigue or any other condition, and seemed alert and responsive. Nor was there any evidence that the appellant had requested her blood pressure medication or that it was refused. The unchallenged evidence of the officers was that the appellant did not request her medication but, if she had done so, it would have been given to her. She does not allege that she was threatened or subjected to harsh, aggressive, or overbearing interrogation. Indeed, after the voir dire, the appellant agreed at trial that Cst. Edwards was nice to her and “not the sort of officer that you expect when you get arrested”.

[20] At all times the appellant was treated with respect and concern about her physical wellbeing. She was given numerous opportunities to speak with counsel and did so on three occasions. At no time, including on the video statement, did she indicate that she did not wish to speak to Cst. Edwards. As the trial judge correctly concluded, there was no evidence of any oppressive circumstances or that the statement was not the product of an operating mind. The trial judge properly distinguished the appellant’s case from the distinctively different factual circumstances in R. v. Ebanks, 2012 ONSC 3887, where incriminating statements were extracted in an atmosphere of threats and oppression that did not exist in the present case.

[21] The appellant submits that the trial judge erred in failing to find that she was given an improper inducement in exchange for her statement. She says that as an inducement for her video statement, Cst. Edwards promised that she would be released and her luggage, which contained her children’s passports, would be returned to her. She argues that the trial judge erred in failing to reject Cst. Edwards’ evidence as incredible and unreliable because of her disciplinary history and her failure to make notes of their conversations.

[22] We disagree. Again, the appellant has not identified any error. Rather, she complains only of the trial judge’s assessment and weighing of the evidence. It was open to the trial judge to accept Cst. Edwards’ evidence about her conversations with the appellant and her denial that any inducement was given in exchange for the video statement. The trial judge was aware of Cst. Edwards’ disciplinary history but was not obliged to discount her evidence because of it. With respect to the isolated passages from the video statement on which the appellant relies as evidence of inducement, the trial judge, correctly in our view, did not interpret them in the way urged by the appellant. Significantly, as the trial judge noted, Cst. Edwards clearly stated on the video statement that it was not up to her but the courts to determine when the appellant would be released and could retrieve her passport and her luggage with her children’s passports.

[23] A trial judge’s finding of voluntariness is essentially a factual one requiring a contextual analysis of the particular circumstances surrounding the making of the statement in issue. A disagreement with the trial judge regarding the weight to be given to various pieces of evidence is not grounds to reverse a finding on voluntariness. Absent a legal error in determining the test for voluntariness or a palpable and overriding error of fact, the trial judge’s finding of voluntariness is subject to considerable appellate deference: Spencer, at paras. 16-17; Oickle, at paras. 22 and 71; R. v. M.D., 2012 ONCA 841, 293 C.C.C. (3d) 79, at para. 42; R. v. Othman, 2018 ONCA 1073, 371 C.C.C. (3d) 121, at para. 11. We see no such error here.

Disposition

[24] For these reasons, the appeal is dismissed.

“David Watt J.A.”

“L.B. Roberts J.A.”

“B. Zarnett J.A.”