Court File and Parties

COURT FILE NO.: CRIM (J)(P) 1353/15 DATE: 2016 09 15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Fedak-Tarnopolsky, for the Crown Applicant

- and -

ALAN CRICHTON S. Sangha, for the Respondent Respondent

HEARD: August 16, 2016

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

1The Crown attorney seeks a ruling as to the voluntariness of the audio/video recorded statement of Alan Crichton, dated February 20, 2015.

2The accused (the respondent), in response to the Crown’s application, brought an application to exclude the said statement on the grounds that the circumstances surrounding the taking of the statement violates section 7 and 10(b) of the Canadian Charter of Rights.

3A voir dire was held and the only witness to testify was Peel Police Officer Adam Deleeuw, the investigating officer.

FACTS

4On November 18, 2015, the officer telephoned the respondent and asked him to attend at the police station. The respondent was told that he was going to be arrested and charged with extortion. The respondent agreed to attend on November 20th and in fact did so, arriving at 12:10 pm. He announced himself to whoever was at the front desk and was soon thereafter arrested by the Officer Deleeuw.

5Officer Deleeuw testified that he told the respondent he was under arrest for extortion and advised the respondent of his right to speak to a lawyer. The officer read from standard wording he keeps in his notebook.

6The respondent gave the officer the name and number of his lawyer. The officer called the lawyer and at 12:25 pm the respondent had a private telephone discussion with his counsel. Thereafter, commencing at 12:38 pm, the officer interviewed the respondent.

7The respondent was in the interview room for about an hour and a half, although the actual interview lasted less than 12 minutes.

8At 12:39 pm the officer advised the respondent that the interview was being audio and video recorded and confirmed the respondent had an opportunity to talk to his lawyer. The officer said to the respondent, “…you know you don’t have to say anything, but if you do wanna say something, I am very interested in what you have to say all right?”

9To that, the respondent stated, “My lawyer said not to say anything, but I have a question.” The interview continued from there. At one point (p. 4 of the statement transcript entered as Exhibit 1(a)) the officer asks the respondent to tell him what happened to which the respondent again said that his lawyer told him not to say anything.

10In fact, the respondent repeats the phrase, my lawyer told me not to say anything, at least five times within the almost 12 minute interview. Nevertheless, the officer continued to ask questions and the respondent continued to respond.

11In response to one occasion when the respondent said his lawyer told him not to say anything, the officer says, “Okay, but your lawyer’s not the one that’s charged with extortion.”

12When the respondent says that his lawyer is the one who is going to help him, the officer then says,

“That’s fine, but at some point, you gotta make your own decisions, right, and you gotta say, okay, well, look where I am, I’m sitting here in an interview room. I’m under arrest…I’m being charged with extortion.” (pgs. 4 and 5 of the transcript).

13The respondent replies, “That’s part of, that’s part of every officer’s interrogation skills though.”

14The officer (pg. 5 of the transcript) tells the respondent that his mother, who was also charged, sat in the same chair and had a lot of questions and talked about the situation. Counsel for the respondent submits this is an inducement to persuade the respondent to talk.

15I agree with the submissions of the Crown that while the respondent answers some of the officer’s questions, there is also information he purposely withholds from the officer, such as a recording the respondent says he made which he will review only with his lawyer.

16Further on in the interview, (pg. 13) the respondent says, “I’m done speaking know. Is that cool?” Counsel submits this is evidence that the respondent was not really aware he did not have to say anything and thought he had to obtain the officer’s consent to stop talking. In any event, the interview continued.

17At one point towards the end of the interview the respondent said his feet were cold and asks for his shoes. Apparently when he was initially processed his shoes were taken from him.

18The respondent also advised the officer, when asked why he was standing up in the interview room when the officer re-entered the room, that he had a bad back.

19On these facts, gathered from the evidence of Officer Deleeuw, and after viewing the recorded statement (Exhibit 1(a)) and the statement transcript, (Exhibit 1(b)), I make the following findings of fact.

20The respondent was advised of his right to counsel and exercised that right.

21He was advised by counsel that he was not to say anything.

22The respondent knew that he was not obliged to say anything. I draw this inference from the respondent’s comments and from the fact that the officer told him, at the outset of the interview, he did not have to say anything.

23The respondent was not cautioned by the officer that whatever he says may be used against him in court. The evidence does not provide any clues or insight as to whether or not the respondent knew whatever he said could be used against him.

24The respondent was not the subject of any threats or inducements. The taking of the statement cannot be said to have been done in an oppressive manner or atmosphere for the respondent, notwithstanding cold feet and a sore back, especially given the brevity of the statement.

25In regards to lawyer denigration, I accept the submissions of the Crown that the comments made by the officer with respect to the respondent’s lawyer did not amount to denigration to the extent necessary to impact on the voluntariness of the statement. In that regard I rely on R. v. Mujku [2001] O.J. No. 284, a decision of the Ontario Court of Appeal, which at paragraph 36 held,

“The police tread on dangerous ground when they comment on the legal advice tendered to detainees. In our view, however, the trial judge did not err in finding that the impugned comment made by the officer did not violate, or undermine to the point of breach, Chak’s s. 10(b) right to counsel. It was open to the trial judge to find that the police officer simply made the point that it was up to Chak, not his lawyer, to decide whether or not to make a statement. The circumstances here are distinguishable from R. v. Burlingham [1995] 2 S.C.R. 206, at para. 14, where the court held that “s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused’s lawyer with the express goal or effect of undermining the accused’s confidence in and relationship with defence counsel.” We see no basis upon which to interfere with the trial judge’s finding that the comments of the police officer in this case did not rise to that level.”

26Officer Deleeuw’s comments were akin to those under review in Mujku and were not an attempt to belittle the respondent’s lawyer and undermine the respondent’s confidence in his lawyer.

27The suggestion by Officer Deleeuw to the respondent that if he answered the officer’s questions, the officer would answer some of his, did not amount to a quid pro quo inducement that would impact on the voluntariness of the statement.

28The officer’s reference to the respondent’s mother providing information was not an inducement.

29I am left then with the real issue in this application. As noted, the respondent was not cautioned that anything he said could be used against him in court and does this omission, on its own, result in an involuntary statement?

30The rights and caution usually afforded to someone arrested are well known to police officers and judges. Most officers have the standard rights and caution words recorded in their notebooks or elsewhere on their person and read the rights and caution to persons arrested.

31It is usual for officers who commence an audio/video interview of an accused to confirm with the accused that he was given his rights and caution and understood them. Often police officers confirm on the record the fact that the accused has had the opportunity to speak to a lawyer and then repeat the caution and provide a secondary caution.

32The initial caution has two parts. The accused is advised of his right to remain silent and is told anything he does say can be used against him in court.

33However, as noted, Officer Deleeuw did not provide the full standard caution. He either felt it was not necessary or simply forgot.

ARGUMENT

34The Crown submits someone detained or a suspect requires a caution because they are not aware of their jeopardy. She submits that the respondent, prior to giving his statement, knew he was charged with extortion, had been given and had exercised his right to counsel and knew he did not have to say anything. He was aware of his jeopardy.

35The Crown submits, as noted previously, the respondent provided some answers to the officer but declined to provide other information. It is submitted by the Crown that I must look at the totality of the evidence.

36Defence counsel submits that the voluntariness of the statement has not been established beyond a reasonable doubt. She submits that the respondent was entitled to receive a full caution which, in fact, was not provided.

37Defence counsel submits that the statement of the respondent was not based on a free and meaningful choice and therefore was not voluntarily given and ought to be excluded.

THE LAW

38R. v. Oikle (2000) 2000 SCC 38, 147 C.C.C. (3d) 321, is a decision of the Supreme Court of Canada. At page 353 Iacobucci J. wrote, “First of all, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness.”

39At page 345, Iacobucci J. stated, “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 over-and-under inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.”

40In R. v. Gayle 2013 ONSC 5282, [2013] O.J. No. 3770, K.M. van Rensburg of the Ontario Superior Court of Justice, as she then was, at paragraph 25 stated, “Voluntariness encompasses respect for the right to silence, as noted by the Supreme Court of Canada in R. v. Singh 2007 SCC 48, [2007] 3 S.C.R. 405 and R. v. Sinclair 2010 SCC 35, [2010] 2 S.C.R. 310.”

41A detained person has the right to make a meaningful choice as to whether or not to speak to state authorities.

42“The mere presence of a doubt as to the exercise of the detainee’s free will in making the statement will suffice to ground a remedy.” (R. v. Singh, supra)

43On the other hand, “The absence of a caution is not determinative…” (Gayle, para. 30).

44As noted by Dambrot J. of the Ontario Superior Court of Justice in R. v. A.D. [2003] O.J. No. 4901, at paragraph 63,

“The mere fact that a warning was given is not necessarily decisive in favour of voluntariness and admissibility but, on the other hand, the absence of a warning does not compel a Court to rule that the statement is not voluntary and inadmissible. All the surrounding circumstances must be investigated. The presence or absence of a warning will be a factor and, in many cases an important one.”

The Ontario Court of Appeal was of the same view in their decision, R. V. Brown [2010] O.J. No. 4059.

45At paragraph 67 Dambrot J., in R. v. A.D., stated, “The informational deficit arising from a failure to so caution the accused is a consideration when the voluntariness of the statement is considered at trial.”

46R. v. Higham [2007] O. J. No. 2147, is a decision of M.F. Brown J. of the Ontario Superior Court of Justice. From paragraph 61 quote,

“R. v. Worrall [2002] O. J. No. 2711 (S.C.J.) Watt J. concluded that a police officer should tell a person that his answers could be used in evidence in a prosecution brought against him once the officer has information that would alert any reasonable competent investigator to the realistic prospect that the deceased’s death may have been associated with an unlawful act committed by the interviewee, even though she is not arrested or detained.”

47From paragraph 18, I quote, “Voluntariness implies the person interviewed has an awareness of the full implications of speaking to the police.”

ANALYSIS

48I accept that the fact that the respondent was not told that whatever he said could be used against him is not necessarily determinative of the issue of voluntariness. However, in the circumstances of this case there is no reason why a complete caution was not provided to the respondent.

49Officer Deleeuw knew the respondent was attending at the police station and arrested him almost immediately upon his attendance. At that point he was in police custody and entitled to all the protection afforded to an accused, including being advised of his rights and being cautioned. The officer had ample opportunity to explain fully to the respondent the full rights and caution, either when the respondent was arrested or at the commencement of the interview.

50In the circumstances of this case the failure to advise the respondent that anything he says will be used against him is an important factor.

51If the respondent did not understand that anything he said could be used against him, in these circumstances, he was unable to make a free and meaningful choice and could not fully assess his jeopardy.

52Whether he knew that his statement can be used against him is unknown. What is known is that the respondent was not cautioned in this regard.

53I do not accept the Crown’s argument that the need for a caution if detained or a suspect should be distinguished from the need on or after arrest. Regardless, a person whether a suspect, detained or arrested, needs an awareness of the full implications of giving a statement.

54The onus is on the Crown to prove voluntariness beyond a reasonable doubt. To say that the respondent knew he was in jeopardy is not enough. Anyone arrested or detained is, to some extent, in jeopardy. The respondent was encouraged to give a statement by the officer notwithstanding the officer being told by the respondent that his lawyer told him not to say anything. On those circumstances a full caution was necessary.

55The lack of a full caution, in the circumstances, raises a reasonable doubt as to whether or not the respondent was able to make a meaningful choice and was aware of the full implications of making a statement.

56The statement is deemed to be involuntarily made and is excluded as evidence. As a result of this ruling I do not have to consider the respondent’s Charter argument other than to say my finding would be consistent with a Charter s. 7 and s. 10(b) violation.

Bielby J.