DATE: 20031113

DOCKET: C34467

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and MACPHERSON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

Anil K. Kapoor

for the appellant

• and -

FRANCIS CARL ROY

Ken Campbell

for the respondent

Appellant

Heard: November 4, 2003

Orally released: November 4, 2003

On appeal from the conviction returned by a jury presided over by Justice David Watt, of the Superior Court of Justice, dated April 13, 1999.

DOHERTY J.A.:

[1] The appellant was convicted of the first degree murder of eleven year old Alison Parrott. Alison was lured from her home, abducted, sexually assaulted, murdered and left in a park in the west end of Toronto. The murder occurred in 1986, but went unsolved. By 1996, advances in DNA technology allowed the police to match DNA from sperm found in Alison’s vagina to the appellant. The DNA match was not contested at trial.

[2] The appellant was questioned about Alison’s disappearance in 1986. He denied any knowledge of that disappearance and gave the police a detailed account of his whereabouts on the relevant weekend.

[3] The appellant was arrested in 1996 after the police matched his DNA to the DNA recovered from Alison’s body. The investigating officer conducted an eight hour videotaped interview with the appellant on the day of his arrest. This interview began some eight hours after the appellant was arrested. In the course of the prolonged interview, the appellant:

• said he had come across Alison’s body in the park while out for a run;
• hinted that he had some kind of contact with her body that would explain the presence of his DNA; and
• denied that he had any part in the abduction, sexual assault or murder of Alison.

[4] At trial, it was argued that the appellant’s statement was inadmissible. Counsel argued primarily that it was involuntary, but also that it was taken in a manner that breached the appellant’s right to silence as found in s. 7 of the Charter. The trial judge rejected both arguments and admitted the statement.

[5] The appellant, who did not testify on the voir dire to determine the admissibility of the statement, did testify at trial. He testified that he came across Alison’s body while running through the park. He had stopped to urinate and found her body as he was about to resume his run. For some reason, which he made no attempt to explain, the appellant said that he put his finger into Alison’s vagina. He said that he had masturbated earlier that morning and had not washed afterwards. His semen had somehow transferred from his penis to his hand and then to Alison’s vagina.

[6] The appellant did not tell the police that he had come across Alison’s body or the contact that he alleged that he had with her body when he was questioned in 1986. This story first emerged after the appellant became aware that the police had DNA evidence.

[7] The admissibility of the appellant’s statement was the only ground of appeal. Mr. Kapoor argues that the appellant’s right to silence under s. 7 of the Charter was violated and that the statement should have been excluded under s. 24(2) of the Charter. He does not challenge the voluntariness of the statement.

[8] Counsel contends that the trial judge conflated the question of voluntariness with the question of whether the police had violated the appellant’s right to silence. He argues that the trial judge viewed both voluntariness and the right to silence as turning on whether the appellant had an operating mind when he spoke to the police. Counsel submits that apart entirely from the appellant’s capacity to make an informed choice to speak to the police, the right to silence is infringed if, objectively viewed, the police conduct goes beyond permissible means of persuasion. Counsel contend that at the outset of the interview, the appellant made it clear that he wished to remain silent. The investigating officer chose to ignore the appellant’s expression of the right to silence and, through a variety of techniques which went beyond legitimate persuasion, effectively denied the appellant the right to exercise his right to silence.

[9] Despite Mr. Kapoor’s attractive presentation, we are satisfied that this submission cannot succeed. The trial judge clearly linked the voluntariness argument and the claim that the appellant had been denied his right to silence. That link exists both in law and on the facts of this case. The trial judge also emphasized the voluntariness argument as that was the argument pressed at trial. The trial judge did not, however, view the right to silence as subsumed by or the same as the voluntariness argument. Nor did he consider the right to silence claim only from the perspective of whether the appellant had an operating mind. The trial judge addressed the right to silence in his detailed reasons. He accurately set out the operative legal principles and referred to the leading authorities from the Supreme Court of Canada. Quoting from R. v. Hebert (1990), 57 C.C.C. (3d) 1 at 39 (S.C.C.), the trial judge said:

What is fundamental to the right to silence, and must not be taken away by agents of the state, is the right to choose whether to speak to the authorities or to remain silent:

The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basic requirement that the suspect possess an operating mind has a subjective element. But this established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the subject. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not?

[10] The trial judge then put the principle in his own words:

There is no prohibition against police questioning an accused in the absence of counsel after the accused has retained counsel. And there is nothing wrong with police trying to persuade an accused to speak to them about a crime. But investigators must not deny the accused the right to choose, or deprive him or her of an operating mind. [Emphasis added.]

[11] The trial judge clearly appreciated that the nature of the police conduct and its connection to the accused’s decision to continue to speak to the police had to be carefully evaluated in assessing the appellant’s claim that his right to silence had been violated. The trial judge dealt at length with the numerous aspects of the police conduct in the course of the interview which it was said rendered the statement inadmissible, including the officer’s stated intention to keep the appellant talking. The trial judge addressed the police conduct both as it related to the voluntariness claim and the right to silence claim, although as he observed, it was agreed there was a significant overlap. The trial judge’s ultimate conclusion on the right to silence is found at para. 335 of his reasons:

It is worth recall that the state is not obliged to protect a suspect or accused against making a statement. To the contrary, the state may use legitimate means of persuasion to encourage the suspect or accused to do so. See, R. v. Hebert, above, at p. 35 per McLachlin J. Nothing that happened here denied Francis Carl Roy the right to choose whether to speak or remain silent, deprived him of an operating mind, or otherwise raises a reasonable doubt about the voluntariness of what he said.

[12] The right to choose whether to speak to the police lies at the heart of the right to silence. The trial judge’s findings of fact doom any argument that the appellant was denied that right. The trial judge viewed the eight hour videotape over the course of three court days. He heard evidence and extensive argument. His review of the evidence on the voir dire and his findings of fact consume over 80 pages. None of the trial judge’s factual findings were or could be challenged on appeal. On the trial judge’s findings, the appellant, who had met with counsel prior to the interview and was fully aware of his right to silence, had decided from the outset of the interview to tell the police certain things and remain silent about other things. The trial judge’s reasons are replete with findings of fact that deny the basic premise of the appellant’s right to silence argument. On those findings, the appellant never wanted to remain silent (e.g. see the trial judge’s reasons at para. 4, 331-332, 345-346). On the trial judge’s findings, the appellant stuck to his “game plan” throughout the interview, answering some questions, declining to answer other questions and posing questions to the investigating officer as he saw fit. Quite simply, on the trial judge’s findings, the appellant never chose to exercise his right to silence.

[13] This was a prolonged interview of a detained person. The appellant declined to answer questions on many occasions. These features of the interview invite close judicial scrutiny of the admissibility of the statement. Clearly, the repeated assertion by a detained person during a lengthy interview that he does not want to speak to the police any further will provide strong and sometimes conclusive evidence that any subsequent statement was not the product of a free exercise of the detainee’s right to choose whether to speak. The question is, however, a factual question to be decided on a case by case basis by the trial judge. On the facts as found by this trial judge, the appellant never chose to remain silent.

[14] The appeal is dismissed.

RELEASED: “DD” “NOV 13 2003”

“Doherty J.A.”

“I agree K. Feldman J.A.”

“I agree J.C. MacPherson J.A.”