COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fernandes, 2016 ONCA 772

DATE: 20161020

DOCKET: C60920

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Charles Fernandes

Respondent

Lisa Joyal, for the appellant

Howard L. Krongold and Kenneth Y.W. Jim, for the respondent

Heard: September 22, 2016

On appeal from the acquittal entered on July 31, 2015 by Justice Healey of the Superior Court of Justice.

Hourigan J.A.:

Introduction

[1] The respondent walked into a detachment of the Ontario Provincial Police and told the front counter administrative assistant that he wanted to confess to burning down his mother’s house.

[2] Arrangements were made for the respondent to speak with a police officer. During the course of that discussion, the respondent advised that he was homeless and wanted to go to jail.

[3] The police officer advised the respondent that arson is a serious offence, which may be punishable by imprisonment, and cautioned the respondent that anything he said to the officer could be used in evidence. The officer also repeatedly suggested to the respondent that he obtain legal advice.

[4] Initially the respondent was not interested in speaking to a lawyer, but eventually he relented and had a telephone conversation with duty counsel. After receiving legal advice, the respondent proceeded to give a statement implicating himself in the fire that had destroyed his mother’s house.

[5] On a voir dire regarding the voluntariness of the statement, the trial judge found that a combination of “oppressive conditions and inducement have operated together to produce an involuntary confession.” She ruled that the statement was inadmissible. Without the statement, the Crown was no longer in a position to proceed to trial and consequently requested that the trial judge enter an acquittal.

[6] On appeal, the Crown submits that the trial judge erred in finding that the statement was involuntary. In particular, the Crown argues that the trial judge misapplied the law regarding the issues of inducement and oppression. Further, the Crown submits that the trial judge conflated her role on the voir dire, being the determination of whether the statement was voluntary, with her role at trial of determining whether the statement was reliable.

[7] For the reasons that follow, I would allow the appeal, set aside the acquittal, and order a new trial.

Facts

[8] On the morning of August 8, 2014, the respondent attended at the Huronia West Detachment of the Ontario Provincial Police. He was alone and did not have a scheduled appointment. Nor was he under investigation, detention, or arrest for any offence.

[9] The front counter administrative assistant greeted the respondent upon his arrival at the police station. The respondent advised her that he was there to turn himself in for burning down his mother’s house.

[10] Arrangements were made for the respondent to meet with Officer Sowyrda in an interview room. At the beginning of the discussion, the respondent advised the officer that, “I can't live outside because I have all kinds of injuries inside of me and I got like brain damage and I got nerve damage and I got all kinds of shit wrong with me.”

[11] The respondent told the officer that he needed to go to jail and that he was not leaving until he had a place to stay. When the officer explained that only people who commit crimes go to jail, the respondent told him, “Well I have committed a crime and I got away with it, so I'll just admit to it and I'll be on my way.”

[12] Officer Sowyrda told the respondent that anything the respondent said to him could be used as evidence. The officer also advised the respondent that he had a right to consult with counsel and he recommended that the respondent exercise that right.

[13] The interview continued in the same manner. The officer advised the respondent on at least three occasions that he was free to leave at any time. He told the respondent on four occasions that anything he said could be used against him. On ten occasions he told the respondent that arson was a serious offence, and on at least three of those occasions he told the respondent that it was punishable by up to fourteen years’ imprisonment.

[14] Throughout the interview, Officer Sowyrda also repeatedly asked the respondent if he wanted to speak to counsel and advised him that counsel could be supplied free of charge through Legal Aid. The respondent refused the offer of counsel on nine occasions. However, on the tenth occasion he agreed to speak with duty counsel. After that call, the respondent provided a detailed statement about the arson, implicating himself in the crime.

[15] The respondent was charged with one count of arson. Prior to the commencement of trial, the parties advised the trial judge that a voir dire to determine the admissibility of the respondent's statement would be held separately from the respondent's trial. On the voir dire, the Crown called as witnesses the officers and staff who were in contact with the respondent at the police station at the time of his confession, as well as the officers who had initially investigated the fire. The Crown entered as an exhibit a videotape of the interview. The respondent called no evidence on the voir dire.

Ruling on Voir Dire

[16] In her ruling on the voir dire, the trial judge described the issue to be determined as follows, at para. 18:

The issue raised by this application is whether the accused's statement was voluntary within the meaning of the confessions rule. The rather unusual question to be decided is, absent any of the traditional grounds stemming from conduct or words from a person in authority that would render a statement involuntary, whether the voluntariness of the statement is nonetheless vitiated because it was induced by the accused's oppressive personal circumstances, or, alternatively because it was not the product of an operating mind.

[17] The trial judge found that the officer's conduct toward the respondent had been "unimpeachable" and "blameless". She went on to state, at para. 29:

There was nothing in the officer's conduct that can be criticized ... The officer appeared to make great efforts to ensure that the accused did not feel pressured or coerced into making a statement, all the while fulfilling his duty to gather any relevant facts that may assist in resolving what had been transformed into a potential crime once the accused began his confession.

[18] The trial judge further found that the respondent possessed an operating mind at the time of making his statement.

[19] Notwithstanding these findings, the trial judge concluded that Officer Sowyrda had induced the respondent to confess through presenting the quid pro quo of jail in return for a confession. The trial judge further concluded that the respondent had been "oppressed" by his own "mind" and "imagination". She reasoned as follows, at paras. 34-35:

This is one of those cases where oppressive conditions and inducement have operated together to produce an involuntary confession. Although it is usually the case that the focus is on police conduct when examining threats, promises or oppressive circumstances, this case illustrates how, even with unimpeachable police conduct, a confession may be found to be involuntary when all of the circumstances are examined . . . an accused may be labouring under circumstances of oppression sufficient to create a reasonable doubt that have nothing to do with the police.

Issue

[20] The issue for determination on this appeal is whether the trial judge erred in finding that the respondent’s statement to the police was involuntary. In considering this issue, I will consider the general legal principles informing a voluntariness analysis. I will then review the trial judge’s analysis on the issues of inducement and oppression. Finally, I will consider the Crown’s submission that the trial judge conflated her role on the voir dire with her role at trial.

Analysis

(a) General Principles

[21] The law regarding voluntariness is well settled and need not be reviewed in detail for the purposes of this appeal.

[22] Because of the criminal justice system’s overriding concern not to convict the innocent, for a statement made to a person in authority to be admissible it must be voluntary. This is known as the confessions rule. The onus to establish the voluntariness of a statement lies with the Crown, and it must be proven beyond a reasonable doubt.

[23] When reviewing a confession, a trial judge should consider all the relevant factors to understand whether the circumstances surrounding the confession give rise to a reasonable doubt as to the confession’s voluntariness. The relevant factors include: oppression, threats or promises (i.e. inducement), the operating mind requirement, and police trickery: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.

[24] In R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, Justice Sopinka, writing for the court, summed up the analysis with the following question, at para. 31: "Did the action of police authorities deprive the suspect of making an effective choice by reason of coercion, trickery, misinformation or the lack of information?"

[25] In the present case, the trial judge concluded beyond a reasonable doubt that the respondent had the required operating mind. There was also no issue of police trickery. The trial judge’s analysis focused on the issues of oppression and inducement. I turn now to that analysis.

(b) Inducement

[26] Where the state induces a suspect to confess, regardless of whether the inducement comes in the form of a threat or a promise, the confession will be inadmissible when the inducement, whether standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne: Oickle, at para. 57.

[27] The most important consideration in determining whether the accused's statement has been induced by such a threat or promise is whether there was a quid pro quo offer by the interrogators. A quid pro quo offeris an inducement for the suspect to confess that raises the possibility that the suspect is confessing, not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator: R. v. Heatley, 2015 BCCA 350, 375 B.C.A.C. 194, at para. 6, and Oickle, at para. 56.

[28] In the present case, the trial judge concluded that the fact that Officer Sowyrda advised the respondent that he could be imprisoned as a consequence of his confession operated as an inducement, given the respondent’s stated desire to find shelter. This conclusion is incorrect for the following reasons.

[29] First, there must be a nexus between the threat or promise and the confession. There can be no inducement where the thing said or done by the person in authority does not result in the confession: Oickle, at para. 84. There was no nexus in this case as the respondent came to the police detachment with the express purpose of confessing to the arson. He made his intentions known to the administrative assistant before speaking to the officer.

[30] Second, the act of supplying accurate factual information to an accused does not constitute an inducement: R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 195 O.A.C. 80 (C.A.), R. v. Teske (2005), 2005 CanLII 31847 (ON CA), 202 O.A.C. 239 (C.A.). Officer Sowyrda had a duty to provide information to the respondent regarding his potential jeopardy. Indeed, if he did not do so, the statement made by the respondent could potentially be found to be involuntary on that basis. I agree with the submission of the Crown that police officers should not be placed in an untenable position where both providing and failing to provide suspects with information about their potential jeopardy could each render statements inadmissible.

[31] Third, on the factual findings of the trial judge, it is clear that the officer was not actively seeking to elicit a confession. To the contrary, he repeatedly advised the respondent to seek counsel, told him he was free to leave at any time, and made clear the seriousness of the situation.

[32] In these circumstances, it was an error in law to find that the respondent was induced to make the statement.

(c) Oppression

[33] A statement of an accused will be rendered involuntary and inadmissible where the conduct of a police officer or the circumstances of the detention are so oppressive as to raise a doubt whether the accused was able to make an independent choice to speak to the police or remain silent: Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis, 2014),at para. 8.63.

[34] Examples of oppressive conditions include situations where the detainee is deprived of food, clothing, sleep, or medical attention. Excessively aggressive, intimidating questioning by the police for a prolonged period of time may also constitute oppression: Oickle, at paras. 59 to 62, R. v. Hoilett 1999 CanLII 3740 (ON CA), [1999], 121 O.A.C. 391 (C.A.), at paras. 25-26.

[35] In the present case, the trial judge found the respondent's statement to be involuntary because of the atmosphere of oppression created by the respondent's own mind and imagination. She held that the fact that the respondent was homeless and in desperate need of shelter meant that he was suffering under oppressive conditions. In my view, the trial judge erred in law in her analysis of the issue of oppression.

[36] Under the confessions rule, the oppressive conditions must be caused or created by the state. The concern underlying this part of the rule is that state agents may abuse their authority over an accused to effectively negate the accused’s ability to make an independent decision to speak to the authorities: Oickle, at para. 60. Here the trial judge found that the conduct of the police was “unimpeachable” and “blameless.” Given these findings, it is not possible that oppression was a factor.

[37] The trial judge also found that the respondent had an operating mind. Consequently, in the absence of police misconduct, he was responsible for his decision to speak to police and not maintain his right to silence. As Justice Sopinka put it in Whittle, at para. 55: “Inner compulsion, due to conscience or otherwise, cannot displace the finding of an operating mind unless, in combination with conduct of a person in authority, a statement is found to be involuntary.” While the respondent’s inner compulsion may have led to his confession, there was nothing in the conduct of the police that would render the statement involuntary.

[38] In my view, there was no basis for the trial judge to conclude that the respondent was oppressed by the police while at the detachment.

(d) Conflation of Roles

[39] The Crown submits, and I accept, that the trial judge’s ruling demonstrates that she conflated her role on the voir dire of determining whether the statement was voluntary with her role at trial of determining if the statement is reliable.

[40] During the Crown’s submissions on the voir dire, the trial judge asked the Crown whether the overarching concern on the voir dire was the reliability of the confession. The Crown replied that the question before the court was one of voluntariness, and that reliability was an issue reserved for the trial. Defence counsel agreed that the truth, falsity, and ultimate reliability of the statement ought to be matters reserved for the trial.

[41] Despite the submissions of counsel, in her ruling the trial judge expressed her concern, at para. 40, that the statement may be false: “even if the question of admissibility was determined differently, as the eventual trier of fact I would be unable to attach much weight to the statement given its content.”

[42] The effect of this error is that it deprived the Crown of the opportunity to tender the statement in the context of all of the evidence at trial to prove its veracity beyond a reasonable doubt. In other words, by conflating the two exercises the trial judge considered the ultimate reliability of the statement without the benefit of the rest of the evidence.

Disposition

[43] I would allow the appeal, set aside the acquittal, and order a new trial.

Released: “DD” OCT 20 2016

“C.W. Hourigan J.A.”

“I agree. Doherty J.A.”

“I agree. S.E. Pepall J.A.”