Court File and Parties
Court File No.: 13-0333 Ontario Court of Justice
Between: Her Majesty the Queen — and — Shawn Robinson
Before: Justice Gregory A. Campbell
Counsel:
- J. Holmes, for the Crown
- M. Carroccia, for the Accused
CAMPBELL J.:
RULING ON VOIR DIRE
1: THE PROCEEDING
[1] Shawn Robinson is charged with the offence of attempt to commit murder. During the course of the trial, we moved into a voir dire to consider the evidence in relation to the admissibility of statements made by Mr. Robinson that tend to subject him to criminal liability.
2: MATERIAL FACTS
[2] The 46 year old accused was estranged from his father for most of his life. In recent years, they re-connected but it was not without struggle or difficulty. They resided together for a short while in 2010. A problem arose between them that apparently involved the police. Shortly afterward, Peter Robinson moved to Toronto for a short while. He returned to Windsor in or around January 2013 and, as luck would have it, he moved into an apartment with a friend that happened to be a short distance away from where the accused was now living. By chance, they ran into each other at a local market in the neighbourhood only one week prior to the incident at issue. The father and son hugged and apparently the accused apologized for what had happened when they lived together in 2010. Peter Robinson said he forgave his son. They exchanged telephone numbers and Peter Robinson introduced the accused to the friend he was living with. From the father's account, his son fancied the younger woman his father was living with and would call to talk with her from time to time. This included a telephone call made shortly after 6:00 a.m. on February 10, 2013. Ms. St. Jean said that when Mr. Robinson called he was upset and told her that his father was a bad man who hurt people.
[3] It was around 3:30 a.m. that same morning when the Windsor Police Services received a telephone call from Shawn Robinson who reported that his father was responsible for two homicides at or around the time when the accused was four years old.
[4] The next day, the police went to the accused's home to speak with him. He confirmed that he made the call but because he had been drinking or as the accused testified on the voir dire, he "was drunk," they decided to put off their investigation into the complaint until the next day. On February 12, 2013, the police went back to Mr. Robinson's home to follow up on the matter. The accused again had been drinking but notwithstanding the fact that his speech appeared to be a bit slurred to the officers, Mr. Robinson stated that he wanted to speak to the police in any event so he accompanied them downtown to be interviewed about the historical homicide and rape that had been reported by the accused two days earlier.
[5] The interview was audio-visually recorded. The recording was played during the voir dire with the benefit of a written transcript for convenience. The interview commenced at 10:36 a.m. and concluded at 11:08 a.m. It was conducted by Detectives Frank Providenti and Scott Ritchie. Detective Quidding was located outside the interview room working on a separate matter but testified that he was aware the interview with Mr. Robinson was being conducted in part because the audio was amplified outside of the interview room and because a visual monitor was on the wall located behind him.
[6] From the outset of the interview, Detective Providenti confirmed with Mr. Robinson that it was the accused who made the call two days earlier requesting information in regard to a homicide. After confirming their initial encounter from the day before when the officers attended Mr. Robinson's home and determined the accused was not in a suitable condition to be interviewed, Mr. Robinson stated, "It does not matter if I'm drinking, I'm gonna say the same thing sober or drunk." From there, the detective invited Mr. Robinson to tell them about what was on his mind. During the interview, the accused spoke about having recently raised with his mother knowledge about a sexual molestation involving his sister and in regard to a belief he had that his father killed two men when he was four years old. He said raising this with his mother had created a strain in their relationship. The accused went on to indicate that his father had killed a man by having him kneel down before putting a gun in the man's mouth and shooting him. Mr. Robinson then went on to describe his father as a racist who randomly shot a black man in Detroit. The detective asked for the name, age and address of Mr. Robinson's father before asking about further details in regard to how the events happened.
[7] Mr. Robinson said they were simply stories he heard from his father his entire life. When the detective asked the accused if he knew why his father committed these crimes, Mr. Robinson said one of the victims raped his mother but went on to indicate that his mother has denied this. The detective then asked if he could speak with Mr. Robinson's mother. The accused provided the detective with his mother's name, telephone number and address. The detective probed further in an effort to gain more particulars and the identity of any other potential witnesses who might corroborate the accused's story. Mr. Robinson spoke of his sister, two uncles and three step-brothers and provided names and information in regard to the location of their residences.
[8] The accused went on to state, "I've kind of shunned myself away from the family" after he identified uncles and step-brothers as people the police could follow up with. Then the following exchange took place:
Detective Providenti (FP): Is there anything else that, ah, you can think of that we haven't discussed? But do you care if we go and talk to your dad?
Shawn Robinson (SR): No.
FP: Do you care if we talk to your mother?
SR: No.
FP: Or your uncles or?
SR: She knows. I told her its comin', so deal with it.
FP: Okay.
SR: I'm sorry, but it's, it's time things...I'm going to be the bad guy in this family. I'm going to be the one hated forever.
Detective Ritchie (DR): Shawn, when did you last talk to your dad?
SR: I brought him to the river to kill him.
DR: I'm sorry?
SR: I brought him to the river to kill him.
DR: When was that?
SR: Saturday.
DR: Saturday?
SR: The river was frozen over so I couldn't kill him.
DR: How were you planning on killing him Saturday?
SR: I was just going to toss him in the river...but...
DR: How did, how'd you, how'd you get, did you get him to the river? You were...
SR: Yes.
DR: ...with him at the river?
SR: Yes, he showed up...
DR: Okay.
SR: ...I, I, I was physical with him.
DR: Well tell, tell me about how, how you got him there on Saturday? Did you just call him up? Like were you still on speaking terms with him?
SR: I called Sharon. No. Sharon. He lives with Sharon.
DR: inaudible
SR: Sharon's a crack addict, so have fun talking to her.
DR: Yeah?
SR: I just want to end it all, I'm sorry. [crying]
DR: So you called him up, you wanted to throw him in the river...
SR: Yes.
DR: ...and the river was frozen.
SR: Yes.
DR: Okay, so what happened down at the river then?
SR: Nothing. I just kinda tossed him around a little bit. But he's not a weak man. I told you, he's in a scooter and he will stand up. He's a strong man. He's a tough, fuckin' man. He's one of the meanest motherfuckers you've ever met in your life.
DR: Did you have a weapon with you at all?
SR: No.
DR: You were just going to throw him in the river?
SR: Yes. That was my intention, but...
DR: Where at?
SR: I talked to my mother and it's not worth losin'...
DR: Losing your life over?
SR: No.
DR: Yeah, where were you at the river?
SR: At the end of the block.
DR: By Chewitt Park there?
SR: Yes. Where whatever the park was.
DR: Yeah. So that didn't happen on Saturday...
SR: No.
DR: ...have you talked to him since then?
SR: No.
DR: Okay. And is that when you decided to call the cops, after this happened Saturday?
SR: Yes.
[9] At this point in the interview, the accused started to talk about how he had read a book by Marilu Henner dealing with repressed memories and returned to discussing how his father had killed two people and how he should not be allowed to get away with it. Mr. Robinson stated, "The man needs to pay for what he's done. And you need him to make him pay for what he's done." He then repeated more of what he said earlier about the two men being killed and about how one of the bodies is buried in a landfill before next saying, "And I was going to do your job for you, but I didn't." Detective Ritchie then asked:
DR: Okay, so now, so now...as a police officer, you're telling me that on Saturday you were going to kill somebody?
SR: Yeah, that's what I me – I...
DR: Okay?
SR: I was.
DR: And now what am, what am I going to do about that to make sure that it doesn't happen?
SR: 'Cause I'm not going to.
DR: Do you need, do, do you, have you got, a doctor that you see? Do you need some, do you need somebody to talk to about it?
[10] From here, the detectives explored the need for counselling and/or psychiatric help. One of the detectives left the room and testified to making inquiries about how to arrange for the accused to be assessed or examined by a doctor. The remainder of the interview focused on a concern for the accused's safety and that of his father and perhaps others and the need for Mr. Robinson to seek professional help. He was clearly crying and upset and, at one point even stated, "I want to fucking die." Mr. Robinson described everything as being "so evil" and added, "I know I did wrong that night. I know I did. And I, I know I have to pay for that 'cause I've now been wrong too."
3: ANALYSIS
[11] The defence asserted that a line should have been drawn after the accused responded to the question that was quite properly put by the detective when he asked, "Shawn, when did you last talk to your dad?" And the answer followed, "I brought him to the river to kill him." The defence does not dispute that the statement was essentially blurted out as a voluntary remark and is admissible, but maintains that from that moment on the police should have refrained from asking further questions and informed the accused about his right to retain and instruct counsel, without delay.
[12] The prosecution, relying on the testimony of Detectives Ritchie and Providenti, argued that the police were completely taken by surprise by the statement and, moreover, did not know what to make of it in light of the information they had been provided with up to that point in time which they were sceptical of as they, through to that point in time, had been trying to determine the veracity of the statements made by the accused about the historical homicide and rape and molestation so they needed to inquire further.
[13] The Supreme Court of Canada in R. v. Grant, [2009] 2 S.C.R. 35, recognized that law enforcement is, of course, dependent on cooperation from members of the public and as such the police are not required to abstain from asking questions until such time as they have specific grounds to believe an individual is connected to the commission of a crime.
[14] It is important to first appreciate that Mr. Robinson contacted the police himself to report the historical homicide and rape and attended the police department voluntarily to discuss his concerns about those historical facts which was expanding and by that point also included child molestation.
[15] It is important to appreciate that statements of an accused can be admitted against him in circumstances where they have been made to persons in authority provided they were made voluntarily. There can be no doubt that what was blurted out by Mr. Robinson was a voluntary statement. What followed is where matters become contentious.
[16] Notwithstanding probing questions by counsel that might suggest there could be reason for concern, having regard to the accused's general demeanour arising from alcohol consumption and being emotionally upset, counsel for the defence did not make any submissions in regard to whether Mr. Robinson's cognitive ability to understand what he was saying was compromised. The relevant test is whether the accused possessed an operating mind.
[17] The Supreme Court of Canada in R. v. Whittle (1994), 92 C.C.C.(3d) 11, described the operating mind test as, "...requiring the accused to possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused." Justice Sopinka added that the operating mind test, "...goes no further and does not require the court to be satisfied that the accused was capable of making good or wise decisions but only the ability to appreciate and understand what he is saying and that he has the choice to say it or not." The threshold is fairly low.
[18] As is reflected above from the transcript of the interview, notwithstanding the fact Mr. Robinson had been drinking and stated during his testimony on the voir dire that he was drunk, it is noteworthy that Mr. Robinson recalled calling 911 that day and being "stressed" about seeing his dad which he described as having brought up a lot of bad memories. A review of the interview reveals that prior to the subject statements being made, he was not only able to identify all relevant witnesses to be interviewed by the police in regard to the historical homicide and rape and molestation but also provided the police with names, addresses and telephone numbers and distinguishing facts in regard to being able to locate one uncle from another based on their streets. He also recalled the name of an author from a book he read dealing with repressed memories and, from the outset, confirmed his recollection that the police had been to his home the day previously and added, "It does not matter if I'm drinking, I'm going to say the same thing sober or drunk." I am satisfied that Mr. Robinson, at all material times, had the ability to appreciate and understand what he was saying to the police and that he was aware that he had the choice to say it or not.
[19] On the face of it, there appears to be an attraction to the defence argument that after the accused stated, "I brought him to the river to kill him," they ought to have stopped and informed him of his rights to counsel. However, a closer analysis of what took place against the principles of law at issue here suggest to me otherwise. I am not so certain the police could have formed any opinion or belief that a crime had been committed solely based on the statement, "I brought him to the river to kill him." As is the case for all criminal offences, there must be both a mens rea and actus reus to the offence. It seems to me the statement, "I brought him to the river to kill him," might certainly raise cause for concern to the police about a possible offence but this statement falls short of the mark to form any belief that an offence had been committed and of necessity having regard to the circumstances that brought Mr. Robinson to the police detachment, would have justifiably caused the police to inquire further.
[20] Criminal intention alone is insufficient to establish a criminal offence even if the offence is of attempt murder. The questions that followed in regard to when and where were appropriate in the circumstances and, to my mind, it was not until Mr. Robinson indicated that he, "...kinda tossed him around a little bit." that there was evidence of a necessary and second element of an offence with respect to the actus reus equating to an assault that may be related to the statement about an intent to kill. It was the description of a physical altercation that followed which would give support to a reasonable belief that a serious crime may have been committed. It was therefore at that point when what might have begun as a voluntary statement changed to an investigation with the questions that followed and the accused could no longer be deemed to be speaking voluntarily. What's curious in this case is the fact that it would appear the officers may not have had the subjective grounds to believe an offence may have been committed. I accept their evidence that they didn't really know what to make of Mr. Robinson's story and they moved to eventually get him psychiatric help. Even at the end of the interview, after the two detectives left the room, Mr. Robinson states that he thinks they locked him in. He then got up and walked out of the interview room. The police found him afterward in the hall. One of the detectives testified that if they thought they had grounds to believe an offence had been committed they would have locked the door when they left the room. So, notwithstanding the lack of a subjective belief as to the commission of a serious crime, that should not relieve the police of their duty to inform the accused of his rights in circumstances such as these. Even the accused realized at some point during the interview that he was in jeopardy when toward the end of the interview he stated, "I know I did wrong that night. I know I did. And I, I know I have to pay for that because I've now been wrong too."
[21] Based on the foregoing, I am satisfied the general questioning of the accused which was at a time voluntary, became one of interrogation after Mr. Robinson described the assault by having, "tossed him around a little bit," after previously stating that he wanted to kill his father by throwing him in the river. With grounds to believe an offence may have been committed, the police had a duty to inform the accused that he was under investigative detention and to inform him of his right to retain and instruct counsel.
4: Section 24(2) – Admissibility of Statements
[22] Section 24(2) of the Canadian Charter of Rights and Freedoms provides that where I have found evidence was obtained in a manner that infringed Mr. Robinson's charter protected right, the evidence shall be excluded if it is established, having regard to the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[23] In R. v. Grant, supra, the Supreme Court of Canada revised the framework of factors to consider in respect of excluding evidence in circumstances such as these. Upon careful analysis and consideration of these facts against the Supreme Court's guidelines set out in Grant, I am satisfied the evidence ought to be admitted.
[24] First, there can be no doubt the police acted in good faith. They were interviewing Mr. Robinson in regard to a wholly unrelated matter and simply trying to gain a better understanding of the facts he was disclosing about two historical homicides and a rape and molestation when they asked the simple question of when the accused last saw his father, who was the subject of Mr. Robinson's complaint. The officers were caught off guard by the statement, "I brought him to the river to kill him," as it was made at a time when they were not even certain as to the veracity of the statements he had made to that point in time.
[25] Secondly, there was no severe or deliberate effort to undermine the accused's rights. The questions that followed were appropriate insofar as there were no grounds to believe an offence had been committed until the second element in respect of an assault that took place at the park near the river was disclosed. I believe the questions that followed were also in regard to clearing up scepticism and not a deliberate effort or flagrant disregard of the accused's Charter protected right. It may be noteworthy at this juncture to point out that the detectives who were conducting the interview were both assigned to the major crime unit and indicated they had no knowledge that any call or complaint had been made in regard to an attempt murder so they had no reason to believe the statement to be true.
[26] Insofar as the impact on the Charter protected interest is concerned, the answers received by the officers from the questions that followed the breach of the accused's s. 10(b) right would have been information gleaned in any event. All of the detectives testified that based on the information they had, prior to the contentious statements at issue, they would have followed up with the family members that were disclosed by Mr. Robinson during the interview when he complained about the historical homicides and rape in any event. And, as a result of the information provided by Mr. Robinson before the subject statements were made, the police did in fact interview the accused's mother, uncle and aunt, all of whom indicated they were contacted by the accused in the early morning hours at or around the same time when the accused made his 911 call to the police seeking information about the historical homicides, but during his conversation with his mother, uncle and aunt, the accused confirmed the information that he provided to the police after he should have been informed in regard to his rights to retain and instruct counsel.
[27] The accused's uncle, Joseph Mancini, stated he was told by the accused on February 10, 2013 that he wanted to kill his father and had planned to throw him in the river because of the things he did to him and his sister. The accused's aunt received a call at 1:00 a.m. in the morning at which time she was told by the accused that his father needed to be punished for having killed two people and that he was going to take matters in his own hands, adding that his father "needed to be killed." The accused's mother testified that she too received a call from the accused at or around 3:00 a.m. before the eventual altercation at the river later that afternoon, at which time the accused told her that he wanted to kill his father because he had murdered two people and added that if his mother wanted to see her ex-husband again she could meet him down at the river at Brock and Sandwich at 4:00 p.m. that same day as he was going to throw his father in the river. And of course Ms. St. Jean, who was also interviewed by the police, recalled receiving the telephone call in the morning from the accused before making arrangements to meet with his father later in the day, and described him as being upset and complaining about his father being a bad man who hurts people.
[28] In the end, it becomes essentially a moot point in regard to the admissibility of this evidence. The police would have gleaned it in any event. Having regard to society's interest in the adjudication of serious cases of this nature on the merits, and for all the foregoing reasons, it seems to me the reliability of the statements made by the accused following the breach is not at issue. And, as I have indicated, not only did the police act in good faith but the evidence at issue would have been obtained in any event from the third party witnesses based on the information the police received from the accused prior to the contentious statements.
5: CONCLUSION
[29] For all of these reasons, I rule that notwithstanding the violation of the accused's right to be informed in respect of counsel, the evidence shall not be excluded as its admission into evidence in this proceeding would not bring the administration of justice into disrepute.
RELEASED ORALLY: June 7, 2013
Gregory A. Campbell Justice