Court File and Parties

Court File No.: 015/15 Date: 2016/10/26 Ontario Superior Court of Justice

Between: HER MAJESTY THE QUEEN, Applicant Serge Hamel, for the Applicant

- and -

MATHEW JAMES HAYES, Respondent James Harbic and Robert Harbic, for the Respondent

Heard: September 28, 29 and 30, 2016

Publication Restriction Notice

Pursuant to s. 648(1) of the Criminal Code, no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Corrected Reasons for Decision on Voluntariness Application

Ellies J.

Overview

[1] In this pre-trial application, the Crown seeks a ruling that a videotaped statement given by Mathew Hayes to the police on July 10, 2014, was given voluntarily and, therefore, is admissible in his trial for first degree murder.

[2] In the statement, Hayes denies killing the victim, Chris Parsons. However, he also denies using Parsons’ bank card. The Crown seeks to admit the statement because it contradicts video surveillance footage taken at the bank that the Crown alleges clearly shows Hayes using the bank card shortly after Parsons was killed.

[3] The defence argues that the Crown has failed to meet its burden of proving the statement voluntary beyond a reasonable doubt. It contends that the statement was obtained in oppressive circumstances, using police trickery.

[4] These reasons will explain why I am unable to accept that submission.

Background

[5] I have already set out the background facts in my reasons on two other pre-trial applications (2016 ONSC 5209, 2016 ONSC 6103). For that reason, I do not propose to set the facts out in any detail here. The following brief summary will suffice.

[6] Parsons was found dead in his apartment at approximately 7:30 a.m. on June 4, 2013. Texts sent from Parsons’ cell phone suggest that he was alive until at least 1:38 a.m. that morning. Video surveillance taken from a camera located in Cobalt shows a male that the Crown alleges is Hayes leaving his place of residence at about 5:23 a.m. on June 4, heading in the direction of Parsons’ apartment in Haileybury. Video footage taken at 5:37 a.m. shows Hayes stop at a convenience store located about 12 minutes by foot from the victim’s apartment. Further video footage taken at about 6:17 a.m. shows Hayes using the victim’s bank card to withdraw money from an ATM located a very short distance from that apartment.

[7] Hayes was arrested for the first degree murder of Parsons a little more than a year later, on July 10, 2014, while he was in custody at the North Bay Jail on another matter. He was then transported to the North Bay Detachment of the Ontario Provincial Police where he was allowed to speak on two occasions with a lawyer; the first at his request, the second at the request of the lawyer.

[8] Hayes was then transported from North Bay to the Temiskaming Detachment of the OPP. Apparently, there was an audio recording made of everything that occurred from the time of Hayes’ arrest until he was escorted into an interview room at the Temiskaming OPP Detachment, where both a video and an audio recording began.

[9] At 12:49 p.m. or so, Hayes began an interview with Detective Sergeant Darren Miller. That interview continued until 17:55 p.m. The Crown has produced a transcript of the interview, for which I am grateful.

[10] At one point late in the interview, the following exchange took place (this excerpt, beginning at line 5747, is taken directly from the transcript, which contains no punctuation):

MILLER: … well let me ask you this it’s probably the most important question I’m going to ask you Mat kay so can I have your attention just outta respect for this one (1) question HAYES: sorry I’m listening MILLER: kay did you kill Chris PARSONS yes or no HAYES: no MILLER: and I don’t want you to lie to me HAYES: no MILLER: did you use Chris PARSONS bank card at the Scotiabank in Haileybury HAYES: you know a hundred percent (100%) sure I did right MILLER: I think so but I’m asking you whether you did or not HAYES: I didn’t use his bank card MILLER: you didn’t use his bank card HAYES: no MILLER: do you know who did HAYES: no idea

[11] The Crown seeks to introduce this part of the statement to contradict what the video evidence shows. Such a denial may be admissible as a form of post-offence conduct, rather than as an admission against interest: see R. v. Burdick (1975), 27 C.C.C. (2d) 497, [1975] O.J. No. 959 (Ont. C.A.), at para. 20.

[12] In support of its argument that the statement should not be admitted, counsel for the accused asks the court to focus on six aspects of the interview, as follows:

(1) Comments made by Miller about the police investigating the involvement of Hayes’ girlfriend, Caitlin Willard, in events taking place after the murder. Counsel submits that this constituted an inducement. (2) A comment made by Miller early in the interview in which he tells Hayes that the killing of Parsons was a “total goof move”. Counsel argues that the word “goof” is a very strong word to those who have spent time in custody and that this had the effect of intimidating the accused. (3) A story Miller told Hayes about “Easy Eddie” O’Hare, allegedly Al Capone’s lawyer. In the story, O’Hare decides to turn against Capone by revealing confidential solicitor-client information. Defence counsel argues that the use of this story constitutes police trickery, the effect of which was to undermine the accused’s confidence in his lawyer. (4) A comment made by Miller later in the interview in which he tells Hayes that he doesn’t want, “in any means whatsoever [to] make this confrontational in any way”. Counsel argues that the effect of this comment was to do exactly the opposite, namely, make the situation confrontational. (5) A statement made by Miller shortly after the “non-confrontational” comment, in which he says to Hayes that “it’s not about incriminating yourself”, which statement counsel argues served to confuse the accused, at best. (6) The overall length of the interview and the failed efforts of Hayes to end it before saying he did not use the bank card. Counsel argues that the interview had become oppressive by that point.

[13] Defence counsel argues that, if not individually, these factors combine to raise a reasonable doubt about the voluntariness of his client’s statement.

Analysis

[14] I will deal briefly with the law in general as it relates to confessions. I will then refer specifically to some of the cases cited by counsel as I address each of the areas of the statement to which I have been referred.

[15] As the Crown correctly sets out in its factum, whenever an accused person makes a statement to a person in authority, the statement is presumptively inadmissible. It may only be admitted where the Crown establishes beyond a reasonable doubt that the statement was made voluntarily: R. v. Godday, 2013 ONSC 1298, at para. 46. This is known as the “confessions rule”.

[16] In R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, the Supreme Court of Canada engaged in a detailed review of the confessions rule. As Iacobucci J. held on behalf of the majority of the court, the rule is concerned not only with the reliability of confessions, but also with the integrity of the criminal justice system. Iacobucci J. pointed out that, while the variety of circumstances that might vitiate the voluntariness of a confession prevents any hard and fast rules, those circumstances can be broken down into four areas, namely:

(a) the presence of threats or promises; (b) the existence of oppressive circumstances; (c) the absence of an operating mind on the part of an accused; and (d) the use of police trickery

(: para. 47).

[17] While the first three of these areas must be considered as part of an examination of the overall context in which the statement is given, the last is a discrete inquiry. This inquiry is mandated by the court’s duty to preserve the integrity of the criminal justice system (: Oickle, para. 65).

[18] The specific areas of the statement to which I have been referred engage three of the four categories set out above. I will now deal with each of those areas in the order listed above. In doing so, I will use the line references in the transcript of the statement.

The reference to Willard

[19] As Iacobucci J. pointed out in Oickle, threats or promises need not be aimed directly at the suspect for them to have a coercive effect (: para. 51). In Oickle, one of the grounds upon which the accused sought to exclude his confession was the fact that, during the interview, the police intimated that it might be necessary to question the accused’s girlfriend about her involvement in the fires that were under investigation. The accused in Oickle argued that these constituted threats. Iacobucci J. agreed that the relationship between the accused and his girlfriend was strong enough potentially to induce a false confession. However, he found that no such threat occurred (: para. 83). He held that the inducement was not strong enough to raise a reasonable doubt about the voluntariness of the accused’s confession, given that there were no charges pending against the girlfriend that the police were offering to drop, nor any serious suggestions by the police that the girlfriend was a suspect.

[20] Defence counsel argues that a similar type of threat was made here. At line 855 of the transcript, Miller tells Hayes that they showed Willard a “picture” of Hayes at the Scotiabank and that they assumed she then gave Hayes a “heads up” as a result. After lunch is brought to Hayes, the conversation about Willard continued, at line 882:

MILLER: … I mean as far as her giving you the heads up yeah I’m not surprised but she knew it was you and that’s one of the things you have to consider here she’s kinda one of these peripheral people that have involvement in this and without you being able to clarify a few things that’s still out there right we still have to look at how much involvement she’s got in this MILLER: right I’m just telling you this so that you you’re aware of what I’m saying ya know like your red Burton cap we don’t have it you know we don’t have it your black L R G jacket we don’t have it you know we don’t have it because you did something with it or Caitlin did something with it or both of you did it and these are the things that you I want you to to be aware of is that without you clarifying things if it was just you then Caitlin’s still on the radar and gonna have to answer for that as well ya know but I’m not I’m not telling you anything you don’t know here as far as the the evidence ya know some of the evidence not all of it but I mean those two (2) things were something that she became very clearly aware of and your black Nike shoes with the red swoosh again the same thing ya know um but that’s all stuff you have to people are gonna expect an explanation or an understanding of that and if you don’t provide one that’s your option but if you provide one well if it makes sense and and we can we can prove that and make an understanding of that then great do you understand what I’m trying to say there HAYES: yep MILLER: okay um what did you do with that stuff like the red hat the black jacket and your black Nike shoes HAYES: I’m just here to listen MILLER: okay no that’s fine and you ha I’m just saying you have the option to answer if I don’t ask you’re not gonna answer right but you have the choice not to answer absolutely but these are things you gotta think about that you’re gonna have to provide some kind of an explanation for cuz no one else is gonna do it for ya and Caitlin’s gonna have to provide an explanation for it and you know what so be it that’s your choice ya know um but (unidentifiable sound) if you wanna explain yourself I’m here to listen too it’s both ways right HAYES: right [Emphasis added.]

[21] Miller made additional references to Willard’s involvement later in the interview (see ll. 1250 and 2314). At line 2405 of the transcript, Miller makes reference to the fact that the police are looking at charging Willard as being an accessory after the fact to murder:

MILLER: … don’t know about Caitlin but again she’s she’s definitely involved here as well right and just for consideration HAYES: mm hmm MILLER: um so clarification could they could that help understand that absolutely because I’m tellin ya right now that she’s being looked at for obstructing justice she’s being looked at for accessory after the fact to murder ya know like I’m just being honest with ya but these are the things so if that’s not right or that’s not an accurate pursuit to take and you can convince me of that I have no issues being satisfied like if you can satisfy me I can’t just say okay well you said that okay but ya know if the truth is she’s not involved and she didn’t do anything after the fact and you can prove that that would be important for her your new daughter yourself ya know… [Emphasis added.]

[22] I agree with defence counsel that Miller’s comments were capable of constituting a threat to pursue Willard if Hayes did not inculpate himself or, alternatively, a promise not to do so, if he did. Earlier in the interview, Hayes told Miller that he and Willard were no longer together (l. 460). However, he and Willard had had a child together not long before. Moreover, later in the interview, Hayes admitted he still loved Willard (ll. 2759 and 3483). In my view, Hayes’ relationship with Willard was strong enough that the threat of Willard being charged could act as an inducement.

[23] However, the mere presence of a potential inducement is not enough. As Iacobucci J. wrote in Oickle, police often offer some kind of inducement to a suspect to obtain a confession. As he stated, at para. 57, “(t)his becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”. There is no evidence in this case that the comments made by Miller caused Hayes’ will to be overborne.

[24] As the excerpt set out above demonstrates, Hayes appeared to be unaffected by Miller’s comments at the time that they were made (“I’m just here to listen”). The same is true with respect to the other occasions upon which Miller mentioned Willard’s potential involvement.

[25] Moreover, it must be remembered that Hayes never actually confessed to anything. He simply made a false statement about whether he used Parsons’ bank card and he did that much later in the interview. The last time comments about Willard’s involvement were made was at about 2:02:00 (two hours and two minutes) on the time counter. Hayes’ denial about the bank card is not made until about 0:25:00 (twenty-five minutes) on the second disk, which was started when the first disk ran out at about 4:15:22. In other words, the denial was not made until nearly two hours and forty minutes after the last comments by Miller about Willard’s involvement.

[26] Therefore, I am satisfied beyond a reasonable doubt that these comments by Miller, although unfortunate and unwise, did not affect the voluntariness of the statements made by Hayes.

The “total goof move” comment

[27] In Oickle, Iacobucci J. wrote, at para. 58:

Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police and gives an induced confession.

[28] At para. 60, Iacobucci J. set out some of the factors that can create an atmosphere of oppression. He wrote:

Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.

[29] Counsel for the accused concedes that Hayes was provided with food, water, the medication he required, and even an opportunity to smoke during the interview. However, among the other allegedly oppressive circumstances to which I will refer later, he points to the following exchange, starting at about line 1,000 of the transcript:

MILLER: … like I’ve talked to some pretty bad dudes during this investigation and a lotta them even say in fact some have gone to the point to say this is a total goof move whoever did this is a total goof move well for someone to say that it’s pretty strong word I know … [Emphasis added.]

[30] It was acknowledged during argument and supported by Miller’s evidence during the application that the word “goof” is one of the strongest, if not the strongest, insults for inmates. Miller explained that he used this word because that was exactly the word used by one of the people he had interviewed.

[31] Defence counsel argues that the officer’s use of the word “goof”, although perhaps not intentionally, operated to create an atmosphere of oppression by intimidation. He points out that Hayes had been arrested for the murder while in jail and was going to be going back to jail after the interview.

[32] I am unable to accept this argument.

[33] I agree that what Miller said had the potential to create an atmosphere of oppression, but not in the sense of inducing Hayes to confess. If, in fact, one could interpret Miller’s statement to mean that, once the “bad guys” knew that Hayes had been arrested for Parsons’ murder they were going to see him as a “goof”, I cannot see how that would induce him to want to confess in the absence of a promise to keep him safe. There was no such promise made.

[34] However, as I have stated, the Crown seeks to introduce Hayes’ statement not because it contains a confession, but because it contains a denial. I accept that, by telling Hayes that the criminal world would view Parsons’ killer with contempt, it might cause Hayes to make a false denial. Nonetheless, in the context of the interview as a whole, I do not believe that it had this effect. I say this for two principle reasons.

[35] First, the “goof move” comment was made early in the interview and was not repeated. As I have pointed out, Hayes’ denial came much later.

[36] The second reason is one that applies to all of the areas of the interview highlighted by the defence. Both before and after the goof move comment was made, Hayes did a good job of holding his own and resisting the efforts of Miller to get him to talk about the murder. I have already set out Hayes’ statement, made before the goof move comment, that he was just there to listen. After the goof move comment, at line 1210 or so, the following exchange takes place:

MILLER: …taking Crispy’s [the victim’s] life like that wasn’t your plan was it HAYES: I I’ve nothing to say about this matter

[37] Similar comments refusing to discuss the murder were made by Hayes at lines 1260, 1269, 1407, 2100, 2456 and 4520.

[38] There is no evidence that Miller’s goof move comment had any effect on Hayes.

The story of Easy Eddie

[39] In Oickle, Iacobucci J. referred to the decision of Lamer J. in Rothman v. The Queen, [1981] 1 S.C.R. 640, in which he held that, while the police must sometimes resort to tricks or other forms of deceit in their legitimate efforts to pursue their investigations, they must not resort to conduct which “shocks the community”: Oickle, at paras. 65 and 66; Rothman at p. 697. Thus, even where a statement might not be rendered inadmissible on any other basis, it will be inadmissible where the police tactics employed shock the conscience of the community. Counsel for Hayes submits that such trickery occurred here.

[40] Approximately four hours into the interview with Hayes, Miller began to tell him the story of “Easy Eddie” O’Hare, Al Capone’s lawyer, according to Miller. According to the story Miller told Hayes, O’Hare had a change of heart about representing Capone after the birth of O’Hare’s son. O’Hare went to the authorities and betrayed his client’s confidences. He paid for it with his life. According to the story, O’Hare’s son, “Butch” O’Hare, went on to become a World War II hero. As a result, the international airport in Chicago bears his name.

[41] Counsel for Hayes submits that telling the story of Easy Eddie O’Hare amounts to the use of police trickery. He contends that the effect of the story was to undermine his client’s confidence in any lawyer, including his own, to maintain the confidentiality of the information Hayes provided or would provide to counsel.

[42] Ordinarily, efforts by the police to undermine an accused’s relationship with his lawyer are challenged under the Charter: see R. v. Birmingham, [1995] 2 S.C.R. 206. However, no application to exclude the accused’s statement under the Charter has been brought before me. Instead, counsel for Hayes argues that police conduct which undermines an accused’s relationship with his lawyer also affects the voluntariness of any statement obtained. He highlights Iacobucci J.’s holding in Oickle that the use of police trickery constitutes a separate inquiry, the purpose of which is to preserve the integrity of the justice system.

[43] Defence counsel also relies on the decision in R. v. James, 2004 CarswellOnt 3433 (S.C.J.). In James, Ratushny J. excluded an accused’s statement without having resort to the Charter where the interviewing police officer continuously and flagrantly denigrated the accused’s lawyer. Justice Ratushy found that the denigration of the accused’s lawyer took place in oppressive circumstances and created a reasonable doubt about the voluntariness of the confession. Counsel for Hayes argues that the effect of the Easy Eddie story surpassed even the egregious example of police misconduct in James. He argues that, whereas the focus of the belittling comments by the police in James was on the accused’s lawyer’s financial self-interest, the attack in the present case was on a more fundamental aspect of the solicitor-client relationship, namely the confidentiality of privileged information.

[44] While I agree that a scenario in which the police attack an accused’s lawyer’s willingness to keep solicitor-client information confidential might constitute police trickery, I cannot agree that that is what occurred here.

[45] Because of the way in which defence counsel has characterized the Easy Eddie story, I believe it is important to set the story out in its entirety in these reasons. The story begins at or about line 5019 of the transcript:

MILLER: … can I tell ya something else and just kind of explain something as we’re working working along ya know uh it’s it’s a story it’s a real story but I’m gonna tell it because it makes me thing of you now but uh you ever hear of uh Easy Eddie you ever hear a story about a guy name Easy Eddie he was a lawyer for uh Al CAPONE did you ever hear that story or HAYES: no MILLER: no well Easy Eddie was a lawyer for Al CAPONE so you can imagine what kinda lawyer that would be right he’d definitely be aware of the corruption and murder and everything else involved with the mafia obviously but he was a really good lawyer and he was really really well taken care of by the mafia and Al CAPONE and all his mafia ya know tonnes of money flashy cars nice house everything else and um well everything was wonderful he had a really good looking woman that he hooked up with who was attracted to him and you know what they ended up falling in love and she ended up having a baby well after they had a baby and he now had a son it was a baby boy um it changed for him and he looked ya know as the baby was growing and developing as a baby he looked and went ya know I don’t want this lifestyle this is not what I wanna bring my child into ya know and and learn from me ya know like parents watch their parents learn from their parents children sorry learn from their parents right uh at all ages right out even through adulthood let’s face it like we still talk to our parents right we still learn from em or or people we like or respect uncles aunts it doesn’t matter not just parents grandparents right that continues all through life so anyway Easy Eddie who was the best lawyer there was got CAPONE off on numerous things decided ya know what I can’t do this what’s more important for me is my son to learn the importance of of good being good so he made a very big decision to turn against Al CAPONE and kinda come forward with all the things that he was aware of and he knew what that would in in result in ya know and I don’t even think I have to spell it out we’re talking mafia with the worst of the worst right so you know it’s gonna be his demise but he made that decision Mat now I’m gonna tell you another story you know the O’Hare airport in Chicago HAYES: no MILLER: maybe you never been there but that’s their big airport it’s a busy airport I don’t know if it’s busier than uh Pearson but it’s an international I think it’s the biggest one in the United States but Butch O’HARE is who the the airport’s named after and Butch O’HARE was a fighter pilot in World War II and they got sent out on a mission to go scouting or something like that I don’t know the exact details ya know but he went out on a mission and when they took off someone neglected to fill his plane with gas so he takes off with a what do you call that not a flock not a troop a bunch a planes when they they go together in a group what do you call that I’m trying to think of the word HAYES: squadron MILLER: yeah yeah okay yeah uh so they take off and he realizes he goes I don’t have enough gas uh to make it back he goes but I’m coming anyway ya know they’re like no turn around and go back so he’s furious and he’s can’t wait to let someone have it at the fact that he got left behind or couldn’t complete the mission with everybody else in his squadron so he loops around and comes back so as he’s coming back guess what there’s three (3) Japanese fighter planes coming in to do an attack on the US airbase or wherever it was that they took off I don’t know if it was a warship or an airbase I don’t know regardless he thought well they’re going to attack I’m gonna fight them off and he did by himself (unintelligible) he ended up shooting down two (2) and the third (3rd) one took off HAYES: uh I think I heard this story MILLER: did ya HAYES: I’m not positive but it’s kinda similar to that MILLER: yeah and and that’s the thing is I might not know all the details exactly of how it went but I know that on the planes they had cameras that would record and not high def uh fancy ones but they had like the old reel (unidentifiable sound) so that they could if they recovered a plane they could see what happened or review like whatever so he did this he lands he manages to land like cuz he had hardly enough gas to get back but puts on the fight so anyways he lands and he becomes a war hero for doing it HAYES: (belches) MILLER: for bravery and all these other things hence the reason that they named it the O’Hare airport but Mat I wanna th I want you to think of your kids for a minute okay because the funny thing about these two (2) stories that a lotta people don’t know is that Easy Eddie was Butch O’HARE’s dad

[46] I do not believe that Miller told the Easy Eddie story for the purpose of undermining his relationship with his lawyer. Miller testified that he told the story because he had viewed videotaped footage from the surveillance camera in Cobalt that showed Hayes with his children. He testified that he told the story in an attempt to persuade Hayes to tell the truth for the sake of those children. This is clear from what Miller says after he finishes the story and Hayes tells him he wishes to end the interview. The following exchange takes place at about line 5101 of the transcript:

HAYES: (sighs) I don’t mean to be rude to you with you but I’m I’m done with this interview MILLER: okay well I’m not ya know HAYES: yeah I know you’re not MILLER: okay HAYES: I know you’re not and MILLER: and it’s just I can’t give up on ya Mat HAYES: I know you can’t MILLER: but the thing is ya know do you see where I’m going with that though do you understand because this is an opportunity for you HAYES: I understand I understand what you’re trying to do yeah MILLER: but but the last thing you wanna do Mat the last thing you wanna do is send a message to your kids ya know they’re not going anywhere they’re gonna be here your got a lotta life left but it goes that far ya know how I said like outside impact and stuff but you can show your kids that people make mistakes but the last thing you wanna show them is to le ya know and to take responsibility and admit that they own mistakes…

[47] Clearly, the purpose of the Easy Eddie story was to get Hayes thinking about confessing for the good of his children, the way Easy Eddie O’Hare thought about the good of his son.

[48] I also do not believe that the effect of the story was to undermine Hayes’ confidence in his lawyer. None of the comments made by Miller could reasonably be construed as suggesting that Hayes’ lawyer would betray his confidence. There is no evidence in the transcript or the video that suggests Hayes interpreted it in the way suggested by counsel.

The “non-confrontational” comment

[49] Although Miller refused to end the interview, Hayes did not stop trying to do so. At about line 5159 of the transcript, the following exchange took place:

HAYES: I’m only telling you that I’m done with this interview because I respect you and MILLER: mm hmm HAYES: um I’m wasting your time I really am MILLER: no HAYES: yeah you’re wasting your time MILLER: no HAYES: I know you don’t see it that way I understand what you’re trying to do I really do MILLER: mm hmm mm hmm HAYES: but but you are wasting your time HAYES: (unidentifiable sound) I I understand what you’re doing here that’s why I kinda understand it but I’m just trying to tell you that that Iknow this interview isn’t gonna go un anywhere which you like it to go HAYES: you like me to say that I did something that I didn’t do and that’s (unintelligible) MILLER: no that’s absolutely not what I want HAYES: … it’s a bad thing for you to be wasting your time MILLER: it’s not you’re not you’re not HAYES: I am though MILLER: no no HAYES: that’s a thing I can honestly say HAYES: I’ve made the decision to tell you what I could MILLER: okay and why can’t you tell me more like why HAYES: I have nothing else to tell you MILLER: okay but HAYES: and that’s why I’m saying that you’re wasting your time by continuing this interview MILLER: but you could no no but you could okay so just so I understand okay fair like I and I don’t wanna in any means whatsoever make this confrontational in any way or we can agree to disagree on different things while we’re here but as long as we still respect each other that’s what’s important to me right [Emphasis added.]

[50] Defence counsel contends that Miller’s comment about confrontation contributed to an atmosphere of oppression.

[51] Again, I am unable to accept this argument. I might find it easier to accept if Miller had said something like, “I don’t want to make this confrontational, but …”. In that case, it might be said that he was conceding that he was making the situation confrontational, or threatening to do so. However, he said nothing like that.

[52] Miller’s comment was made in response to Hayes’ efforts to end the interview. It was an obvious attempt to de-escalate the situation in order to continue the interview, and not to escalate it to an atmosphere of oppression. In fact, Miller succeeded. After making this comment, the interview continued, with Hayes turning the tables and asking Miller personal questions about his education and aspirations. Hayes asked Miller if he had studied psychology in school (line 5375), how long he’d been doing this work (line 5381), and if he ever thought about starting a business (line 5405). This is not evidence of a confrontational, oppressive interview.

The “it’s not about incriminating” comment

[53] This brings me to what I view as the only really troubling comment made by Miller during the interview on July 10, 2014. Immediately after the comment about not making this confrontational in any way, the following exchange took place, starting at line 5244:

HAYES: yeah MILLER: but for me the way I look at it is um by choosing to do that ya know by choosing to not provide information that you think will provide evidence to support the charge you’re already facing right is that a fair way to put it right HAYES: um I’m choosing not to provide information that I think um may incriminate myself like my clothes that you brought up I’m not sure why you brought that up but that’s that’s (unintelligible) MILLER: cuz you were wearing them that’s why like ya know like let’s let’s be honest like yeah you’re not naked right and that’s the thing I am bringing up your clothes because y you’ve done something with them knowing that that would be incriminating you just said yourself this would incriminate you you’re right ya know like and I’m not arguing with you or disagreeing with you about that at all and it’s not about incriminating HAYES: (sighs) MILLER: no don’t it’s not about incriminating yourself though Mat you’re already charged HAYES: yeah I know MILLER: If you weren’t charged and then you provided information then I arrested and charged you that’s incriminating right HAYES: yeah I’ve had uh I’ve had what I said twisted before MILLER: okay HAYES: so uh MILLER: and that would definitely cause me trust issues or hesitation with HAYES: (sighs) MILLER: and that’s all I don’t wanna do I appreciate you bringing that up Mat because that that’s important to me because the last thing that I’m gonna do here today is twist words

[54] In giving his evidence during the pre-trial application, Miller denied that he was trying to get Hayes to incriminate himself.

[55] I am troubled both by what Miller said during the interview and by what he said during his evidence. Of course, Miller was trying to get Hayes to incriminate himself. That was the entire purpose of the interview. Because that is so obviously true, I am forced to the conclusion that what Miller meant when he testified that he was not trying to get Hayes to incriminate himself was that he was not trying to get Hayes to incriminate himself falsely. This conclusion is supported by what Miller said to Hayes in response to Hayes’ comment that Miller wanted him to say he did something he did not do (“no that’s absolutely not what I want”).

[56] The difficulty I have with what Miller said during the interview itself relates to its potential to act as an inducement or to confuse Hayes. At the time of his arrest, Hayes was provided with the standard police caution about his right to remain silent and that anything he did say might be given in evidence against him. He was reminded of that advice at the beginning of the interview. However, Miller’s statement contradicted that advice. What Miller said could reasonably be interpreted as meaning that whatever Hayes said would not be used as evidence against him. Therefore, it had the potential, at best, to confuse Hayes about his rights and, at worst, to constitute a promise that what Hayes said would not be used to incriminate him.

[57] Again, considering the comment in the context of the entire interview, however, I do not believe that it had either effect.

[58] It is clear that in the roughly three hours and ten minutes prior to this comment being made, Hayes understood full well the purpose of the interview. There were numerous exchanges in which he demonstrated that he knew the purpose of the interview and the consequences of making a statement, whether true or false. For example, at line 4656, the following exchange takes place:

HAYES: I don’t think I have anything to say to help you MILLER: okay um well you’re not helping me right uh HAYES: to help you help people sorry MILLER: uh I disagree I think there’s a lot that you could say to to help this whole situation I honestly Mat I’m gonna be honest because you’re being very forthright with me and I appreciate it I think that (sighs) this doesn’t help you with your your criminal situation this doesn’t help you with your charge by talking to me but it helps with everything else it doesn’t hurt your charge it’s the same thing you’re still charged (simultaneously talking) HAYES: I think it could hurt MILLER: how could it hurt though if you’re telling the truth ya know and I see where you’re going like I can see and tell me about that like tell me if that’s one of the things I’ll I’ll try to explain it how my perception is of how would it hurt you HAYES: just if you caught me in something that uh you already knew and or you think you know and I lie about it it discredits me MILLER: if you’re lying HAYES: so my word’s no no good that’s what I’m I’m telling you everything I can remember MILLER: mm hmm I think there’s more you can tell me with specific stuff and you’re right if you lie it’s not gonna help ya you’re right HAYES: yeah

[59] After the “not incriminating” comment was made, Hayes continued to demonstrate his understanding that whatever he said could be used to incriminate him. After discussing with Miller his concern that his words not be twisted, Hayes again tells Miller that he has nothing else to say (line 5338) and then begins to ask Miller the questions about his education, etc. that I have referred to above.

[60] While Miller ought not to have said what he did, I am satisfied beyond a reasonable doubt that his comment did not have of the effect of acting as an inducement or of confusing Hayes as to the purpose or consequences of the interview.

The accused’s failed efforts to end the interview

[61] I have already set out the excerpt from the transcript of the point at which Hayes began to try to end the interview. The interview continued despite Hayes’ attempts to end it and lasted a little more than five hours. Defence counsel submits that this was oppressive. He points out that Hayes’ denial occurred only towards the end of the interview, after Hayes’ efforts had failed. He relies on the decision in R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48, in which Charron J., writing on behalf of the majority of the Supreme Court of Canada held, at para. 47:

Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities.

[62] Defence counsel also relies on cases such as R. v. Mohamad, 2014 ONSC 1348, in which the court excluded the final three hours of a six and one-half hour interview during which the accused repeatedly requested to be returned to his cell.

[63] In my view, the facts in this case are distinguishable from cases like Mohamad and fail to raise a reasonable doubt about Hayes’ decision to speak to authorities, as contemplated in Singh.

[64] Unlike many of the cases in which overly long interviews have resulted in the exclusion of statements, this one was given during the day. Hayes was arrested at about 8:14 a.m., in the morning, not in the middle of the night. He was provided with breakfast while in custody at the North Bay detachment. On the way to the Temiskaming detachment, he was provided with coffee. Once at the Temiskaming detachment, he was provided with lunch. He was provided with water throughout. He was permitted to go to the washroom when he wanted to. He was even allowed to smoke during the interview.

[65] While the interview did last a long time, it was not one in which the conversation was constantly about the crime. At various points during the interview, Miller and Hayes discussed each other’s family history, education, modern technology and career aspirations, among other things.

[66] The atmosphere throughout the interview was cordial. Unlike the situation in R. v. Slater, 2014 ONSC 1562, a case in which the statement was nonetheless found to be voluntary, Miller never raised his voice at the accused. In fact, although it may have been part of a plan by Miller to gain Hayes’ trust, by my count, the two of them shook hands five times during the interview.

[67] While Miller did refuse to end the interview, he was not required by law to do so. As Charron J. wrote in Singh, at para. 28:

What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. [Emphasis in original.]

[68] The right of the police to continue to question an accused ends only when legitimate efforts at persuasion become oppressive circumstances of coercion. That did not happen here. There is no evidence that Hayes’ will was overborne by the continued questioning.

Conclusion

[69] Whether considered in isolation or in the context of the interview as a whole, none of the areas of concern highlighted by the defence raise a reasonable doubt in my mind about the voluntariness of Hayes’ statement to the police.

[70] Therefore, the Crown has met its burden. The statement is admissible, subject to further submissions from counsel about editing portions of the videotape that may contain otherwise inadmissible evidence.

Ellies J.

Released: October 26, 2016

Corrigendum

Correction made on October 26, 2016, (the change is italicized):

The dates heard was changed to read: September 28, 29 and 30, 2016.