WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.S.M., 2014 ONCA 441

DATE: 20140605

DOCKET: C57276

Rosenberg, MacPherson and Lauwers

BETWEEN

Her Majesty the Queen

Appellant

and

M. S. M.

Respondent

Benita Wassenaar, for the appellant

Richard Litkowski, for the respondent

Heard: May 26, 2014

On appeal from the acquittal entered on June 7, 2013 by Justice Douglas K. Gray of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant Crown appeals from the acquittal of the respondent by a jury on charges of sexual assault and sexual interference. The only grounds of appeal concern the trial judge’s decision to exclude a statement given by the respondent to the police. While counsel framed the submissions in various ways, the essential issue is whether the trial judge erred in law in focusing solely on an inducement offered by the police. The appellant submits that the trial judge was required to take a broader approach and look at the entire context. For the following reasons, the appeal is dismissed.

[2] The complainant is the respondent’s daughter. The complainant and her brothers grew up with their mother, the respondent having left the home shortly after the complainant was born. However, in 2009, the respondent returned to the home and lived with the family for about one year. It was during this time that the complainant alleged that the respondent sexually assaulted her. The respondent was arrested on February 15, 2012 and brought to Halton. The following day he was interviewed by Officer Golba for just over an hour. During this period, the respondent made increasingly incriminating statements. In the course of the interview, the officer referred to the complainant’s need for help which, however, depended upon the respondent admitting that he had sexually assaulted the complainant.

[3] In his ruling, the trial judge found that as a result of the statements from the officer the respondent made his statements “just to get it over with and to get help for his daughter” and that “a full admission was required in order to get [the complainant] the help that she needs”.

[4] The principal ground of appeal is that the trial judge focused solely on what he found to be an inducement and did not take into account the entire context, including that the respondent only had a tenuous relationship with the complainant, and that it was only an offer of psychiatric assistance to the complainant.

[5] The standard of review of a trial judge’s decision on admissibility of a confession is based on the fact that such decision is primarily factual and is entitled to considerable deference. The Supreme Court of Canada made this clear in R. v. Oickle, 2000 SCC 38, where it overturned the decision of the Nova Scotia Court of Appeal and restored the decision of the trial judge. As the court said at para. 22:

While determining the appropriate legal test is of course a question of law, applying this test to determine whether or not a confession is voluntary is a question of fact, or of mixed law and fact. …[A] disagreement with the trial judge regarding the weight to be given various pieces of evidence is not grounds to reverse a finding on voluntariness. Respectfully, I believe that the Court of Appeal did just that.

[6] The lengthy reasons for judgment by the trial judge and the interchange between the trial judge and counsel during submissions show that the trial judge applied the correct test for admission of the statements. The trial judge referred extensively to the law as laid down in Oickle and R. v. Spencer, 2007 SCC 11. The trial judge noted that an inducement of psychiatric assistance or other counselling is not as strong as an offer of leniency, that an inducement related to a third party can render a confession inadmissible depending upon the nature of the relationship and the surrounding circumstances, and that the issue is whether the will of the accused has been overborne. The trial judge also recognized that the courts have permitted the police to use inducements. He referred in particular to para. 57 of Oickle:

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 interests to confess. This 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.

[7] In referring to Spencer, the trial judge noted that what is central is not simply the quid pro quo, but voluntariness.

[8] After referring to these and other cases, the trial judge reviewed the statement at length and concluded the Crown had not shown the statement was voluntary. He concluded as follows:

At the end of the day, the question before me is whether the Crown has proven beyond a reasonable doubt that the statement was voluntary. In my view, there is no question that the answer is no. It is more likely, in my view, that the statement was the product of an inducement of securing help for the accused’s daughter. The seed was planted early and was used effectively throughout the interview. It is clear that [the respondent] ended up making his statement just to get it over with and to get help for his daughter.

What was of some significance, in my view, is that the partial admission made by [the respondent] was not enough and that at page 69 of the interview, to which I referred earlier, it was made clear that a full admission was required in order to get [the complainant] the help that she needs. In the circumstances, given the analysis required, and considering the specific circumstances of the matter, an actual quid pro quo was not strictly-speaking necessary in order to render the statement involuntary, when on a reasonable contextual view of what occurred, in my judgment, a quid pro quo was there. The clear message was: confess and your daughter can get help and move on; if you do not confess, she will not.

In the end, the Crown has simply not proven that that statement was voluntary beyond a reasonable doubt and, therefore, the statement is inadmissible.

[9] The reasons and the interchange during submissions demonstrate that the trial judge applied the correct test. It was a question of fact whether the officer made an improper inducement to the respondent that rendered the statement involuntary. The appellant submits that the trial judge erred in focusing solely on the inducement and failed to consider that there was no suggestion of compulsion. As Oickle and Spencer make clear, the issue is voluntariness. The fact that an officer has made an inducement of some kind does not therefore render the statement inadmissible. But, an inducement, even one concerning a third person, can be sufficient to render the confession inadmissible, even in the absence of evidence of compulsion. The court made that very clear in Spencer at paras. 13 and 15:

With respect to promises, which are at issue in the present appeal, this Court has recognized that they "need not be aimed directly at the suspect ... to have a coercive effect": Oickle, at para. 51. While Iacobucci J. recognized in Oickle that the existence of a quid pro quo is the "most important consideration" when an inducement is alleged to have been offered by a person in authority, he did not hold it to be an exclusive factor, or one determinative of voluntariness. On the contrary, the test laid down in Oickle is "sensitive to the particularities of the individual" (para. 42), and its application "will by necessity be contextual" (para. 47). Furthermore, Oickle does not state that any quid pro quo held out by a person in authority, regardless of its significance, will necessarily render a statement by an accused involuntary. For example, an offer of psychiatric or psychological assistance, although "clearly an inducement, ... is not as strong as an offer of leniency and regard must be had to the entirety of the circumstances" (para. 50). Inducements "becom[e] improper only when ... standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne" (para. 57).

Therefore, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused's statement.

[10] The trial judge did refer to all the relevant circumstances. The trial judge was sensitive to the relevant circumstances. The weight to be attached to the circumstances and the findings of fact were for the trial judge. We have not been persuaded that the trial judge erred in law.

[11] Counsel for the appellant makes one further submissions. She submits that even if part of the statement was inadmissible, the trial judge should have admitted that portion of the statement prior to page 49. She relies upon this excerpt from the trial judge’s reasons:

What was of some significance, in my view, is that the partial admission made by [the respondent] was not enough and that at page 69 of the interview, to which I referred earlier, it was made clear that a full admission was required in order to get [the complainant] the help that she needs.

[12] We do not interpret this passage as a finding that the statement was voluntary until that point. It is a finding, supported by the evidence, that the police officer was not satisfied with the partial admissions. It was not a finding that what had occurred before was voluntary. To the contrary, other parts of the reasons show that the trial judge was concerned that the improper offer was planted in the interview from near the beginning. As the trial judge said, the improper inducement was “planted” before any incriminating statements. Further, this issue of admitting only part of the statement was not raised before the trial judge.

[13] Accordingly, the appeal is dismissed.

“M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“P. Lauwers J.A.”