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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Carr, 2016 ONCA 837

DATE: 20161107

DOCKET: C59730

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kane Barton Carr

Appellant

Jonathan Dawe, for the appellant

Luke Schwalm, for the respondent

Heard and released orally: November 3, 2016

On appeal from the conviction entered on October 31, 2014 by Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant was convicted of sexual assault and break and enter and commit an indictable offence. The sole ground of appeal he raises is that the trial judge erred by finding that the video statement he gave to police upon arrest was voluntary and admissible in evidence.

[2] The appellant’s position is that he was induced to make the statement, (which was essentially exculpatory) on the issue of consent, by comments made by Officer Baker on the approximately two-minute walk as he escorted the appellant to the interview room. The appellant alleged that the officer essentially told him that they would have to talk and figure things out and afterward he would be released. No recording or notes were made by the officer of a conversation, which he initially denied, but later acknowledged that he could have said that they would be having a conversation to figure things out.

[3] The trial judge found that the officer did say that they were going to have a conversation to figure things out, but that the officer did not suggest that he would then release the appellant, and therefore he did not hold out any inducement. The trial judge also analyzed the appellant’s conduct during the interview, and concluded, for a number of reasons which she stated, that the appellant’s decision to give the video statement was not causally connected to an alleged inducement.

[4] The appellant’s main argument is that because the onus to prove voluntariness of a statement by an accused is on the Crown, and because there was no record made of the alleged conversation, once the trial judge found that some statement was made by the officer to the appellant about the upcoming interview, the Crown could not prove beyond a reasonable doubt that the statement of the appellant was not based on an inducement and therefore was not voluntary.

[5] We do not accept this submission on the facts of this case. While it is important for police to record their interactions with accused persons, in this case, the conversation was very brief and held in circumstances on the walk to the interview room where the officer testified that he normally says nothing and believed he had said nothing in this case. Both the officer and the appellant testified as to what was said. Although the trial judge could have rejected the officer’s testimony as unreliable (because he had no notes of it), in the case of this brief interaction, she was entitled to make findings based on the evidence she heard as well as the full context of the arrest and interview process, and the interaction between the appellant and the officer, including the recorded interview. We see no basis to set aside her findings based on the evidence, which she explained fully in her reasons.

[6] While we agree with the appellant that if an offer of release had been made in exchange for the appellant’s statement, that could have constituted a quid pro quo in law, we see no error in the trial judge’s finding that the Crown had proved that no such inducement was given.

[7] The appellant also submits that the trial judge confused two branches of the voluntariness analysis, whether an inducement was given and whether the appellant’s will was overborne. While the trial judge did refer to the issue of the appellant’s will being overborne, we do not agree that she applied an incorrect test on the issue of whether there was a causal connection between the appellant’s decision to give a statement, and an alleged inducement by the officer.

[8] In the result, the appeal is dismissed.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“M.L. Benotto J.A.”